Republic v. Director of Prisons. Ex Parte Salifa [1968] GLR 630

Material Facts:

This is an application for a writ of habeas corpus directed against the Director of Prisons to secure the release of Salifa who was detained on the authority of a purported decree. The purported decree although signed by the chairman of National Liberation Council (NLC), was neither gazetted or numbered as required by the NLC’s proclamation. Counsel acting on behalf of the father of Salifa contended that the purported decree was not a decree and that Salifa was been unlawfully detained.

Issues:

1. Whether or not the purported decree giving authority to the arrest of Salifa was a decree.

2. Whether or not the NLC had unlimited power.

Arguments of Counsel for Applicant:

1. That the purported decree was not a decree in light of the provisions in sub-paragraphs (6), (7), (9), (10) and (11) of paragraph 3 of the NLC’s Proclamation.

Arguments of State Attorney:

1. That paragraph 3 sub-paragraph (5) of the NLC’s proclamation makes a decree valid if it bears the signature of the chairman of the NLC even if not numbered and gazetted.

2. That even though the purported decree bore no number, it could not be legally re-submitted to the NLC for such.

Holdings:

1. That the purported decree is not a decree.

2. That the NLC did not have unlimited power.

Ratio Decidendi:

The court found that the purported decree did not meet the pre-requisites of a decree as established in the NLC’s own proclamation, that the decree must be numbered and gazetted. The court also reasoned that the NLC’s proclamation dispensed with the idea of illimitability of power in Ghana and that autocracy was a thing of the past.

Comments:

The court upheld the doctrine of constitutionalism and recognized that governmental power ought to be limited. The court prevented violations of appropriate procedure, thereby placing procedural limitations on an authority.