Republic v. Director of Special Branch; Ex Parte Salifa [1968] GLR 646

Salifa, who had been detained under a National Liberation Council Decree, was released on habeas corpus on the grounds that the purported decree which ordered his detention was invalid because it was un-numbered and not gazetted. He was immediately re-arrested without a warrant for subversion under another decree also un-numbered and not gazetted. Salifa’s father filed for a writ of habeas corpus for the release of Salifa on the grounds that the detention of Salifa was unlawful.

Issues:

1. Whether or Salifa can be re-arrested after release on habeas corpus.

2. Whether or not the decree ordering Salifa’s arrest was a valid decree.

3. Whether or Salifa could be arrested without a warrant.

Arguments of Counsel for Salifa:

1. Contended that the decree was not valid under paragraph 3 (10) of the Proclamation for the Administration of Ghana as amended by N.L.C.D. 73, para. 16 (a).

2. Contented that the NLC has itself placed limitations on itself and thus had limited power.

Arguments of the Attorney General:

1. Submitted that the decree bore the signature of the Chairman of the National Liberation Council and was therefore valid.

2. That the National Liberation Council had unlimited power and could thus issue unpublished or unnumbered decrees which would have the full force of law.

3. That the requirement that decrees be numbered only concerned published decrees and not unpublished decrees.

Holdings:

1. Salifa could be re-arrested after being released on habeas corpus.

2. The decree was a valid decree.

3. Salifa could be arrested without warrant.

Ratio Decidendi:

The court ruled that a person released on habeas corpus is “not privileged from being immediately re-arrested on a criminal process in relation to some matter other than that in respect of which he has been discharged”. Salifa was being re-arrested on grounds of subversion.

The court stated that paragraph 3 (10) of the Proclamation for the Administration of Ghana as amended by N.L.C.D. 73, para. 16 (a) requires a Decree made by the council to have a short title which would be sufficient by way of citation to identify the decree. Since the decree ordering Salifa’s arrest had a title, it was deemed valid. The court further reasoned that paragraph 3 (10) gave two alternatives to making a decree valid, one of which was numbering and the other being a titling. The court also ruled that paragraph 3 of the proclamation decree makes it possible for a decree to come into force prior to being gazetted.

The court ruled that an arrest without a warrant can be justified if the security of the state is at stake. On the suspicion of subversion, personal liberties could be sacrificed in the interest of the state.