STATE v. GENERAL OFFICER COMMANDING THE GHANA ARMY; EX PARTE BRAIMAH

JUDGMENT OF AKUFO-ADDO C.J.

Akufo-Addo C.J. delivered the judgment of the court. This is an appeal by the General Officer Commanding the Ghana Armed Forces against an order of Anterkyi J. in the High Court, Accra, granting the respondents' (Yusufu Iteriba Aminu's) application for a writ of habeas corpus and ordering his release from custody. The appeal came before us on 3 March when after hearing counsel's argument we allowed it, reversed the order of Anterkyi J. aforesaid and reserved our reasons for the judgment.

The respondent, a Nigerian national resident in Ghana, was arrested on 3 January 1967 by the army authorities on suspicion Of having committed the offence of stealing. The army authorities acted in pursuance of the provisions of the Law Enforcement (Powers of the Army) Decree, 1966 (N.L.C.D. 109), which gave to the army authorities the same powers of arrest and prosecution as are vested in the police under the Criminal Procedure Code, 1960 (Act 30), the Police Service Act, 1965 (Act 284), and the Public Order Act, 1961 (Act 58).

On 4 January 1967, the Attorney-General gave his consent in writing for the detention of the respondent for a period of 28 days beginning from 4 January 1967. The Attorney-General was acting under the provisions of the Criminal Procedure Code (Amendment) Decree, 1966 (N.L.C.D. 93), which amended section 15 of the Criminal Procedure Code, 1960, by adding the following subsection thereto:

"(5). Notwithstanding anything to the contrary, a person taken into custody without a warrant may, with the consent in writing of the Attorney-General, beheld in custody for a period of twenty-eight days or such other period as the Attorney-General may determine and the provisions of section 96 of this Code (relating to bail) shall not apply to a person so held."

The period of 28 days expired on 1 February 1967 and on that day the Attorney-General issued another consent in writing for the [p.195] detention of the respondent for a further period of 28 days as from 1 February 1967.

On 7 February 1967, the respondent, by his nephew, Yaya Aminu Braimah, applied to the High Court, Accra, for a writ of habeas corpus for the release of the respondent from custody on the ground that the Attorney-General had no power to give consent, once the respondent had completed the original 28 days in custody, for the further detention of the respondent. The respondent's counsel contended that his ground was based on a true and proper construction of