The Re: Akoto and The Supreme Court Revisited - The Reasons for Judgement

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The Reasons for the Judgement

Korsah- the Chief Justice, delivering the judgement of the Supreme Court on his own behalf; Van Lare and Akiwumi, JJ.S.C., set out a brief background to the passing of the PDA [as amended] and the relevant sections applicable to the suspects mentioned above, not forgetting the arguments raised by the appellants’ defence counsel, made the following ruling:

[1] “Since 1st July, 1959, matters relating to preventive detention, other than the statutory power conferred on the Minister responsible for Defence by section 3(2) of the Preventive Detention Act, 1958, have been placed within the portfolio of the Minister of the Interior.

[2] I am authorised to say that the Preventive Detention Order (No. 5) 1959 (L.N. 310) was made by the Governor-General in good faith under section 2 of the Preventive Detention Act, 1958, and the making therefore was duly signified in good faith by the Interior Minister.

[3] The reason for the making of the said Order is as set out in the recital thereto, namely that in accordance with the provision of section 2 of the Preventive Detention Act Act, 1958, the Governor-General is satisfied that the said Order is necessary to prevent the persons detained acting in a manner prejudicial to the security of the State. The grounds of detention served upon the said detainees contain particulars.”

In the light of the above, the Court concluded that it is not disputed that (a) the appellants [Akoto and Others] belong to the class of persons to whom the PDA applies, (b) that they are the persons mentioned in the order and (c) the order was made by the competent authority. Accordingly, it was not accepted that the High Court judge, on hearing the application was obliged to have released the suspects under rule 14 of Order 59 of the Supreme [High] Court (Civil Procedure) Rules, 1954 or to have ordered for a formal return to the writ. Thus the justices in Re Akoto said: “We are clearly of the opinion that rule 14 does not make it compulsory that in every case the judge should order a formal return, in this view, we are fortified by what Goddard, LJ (as he was then) in R v. Home Secretary, ex parte Greene.”

“To avoid any misunderstanding, I desire to add that, both in the present case in R v. Home Secretary, ex parte Lees the applicants themselves exhibited to their affidavit copies of the orders under which they were detained, and no question was raised as to the accuracy of the copies. However, cases may arise where detained, and no question was raised where persons who are detained, whether under defence regulations or otherwise, do not, and perhaps cannot, inform the court of the order or warrant under which they are detained. In such a case, if the court sees fit to grant an order nisi or summons to show cause, it will be necessary for the person who has the custody of the prisoner to make an affidavit exhibiting the order or warrant under which he detains the prisoner...,” Goddard LJ said this in the ex parte Greene.

One of the crucial grounds under which a decision of a judge or a court could be challenged is where a wrong law or rule had been wrongly applied or invoked as the basis for his decision. The Supreme Court’s over-reliance on UK law as applied in the war-time case of Liversidge v Anderson in the Re: Akoto had been found to be farce. It was also not true that the Ghanaian Parliament of 1960 with all its entrenched provisions and special powers bestowed on the First President (here, Articles 1(1); 8 and 55) was as sovereign and supreme as that of the United Kingdom. The Court therefore, erred on the interpretation of section 3 of the Habeas Corpus Act 1816 in accepting among other things that ...if Parliament can pass laws to detain persons [without trial] in war-time there is no reason why Parliament cannot exercise the same powers to enact laws to gaol persons such as Akoto and Co. in peace time.