Kamara v Director of Prisons, 1972-73 ALR S.L. 162

SECTION 25 THE AFRICAN LAW REPORTS KAMARA and SEVEN OTHERS v. DIRECTOR OF PRISONS High Court (During, J.): November 15th, 1972 (Misc. App. No. 54/72) 5 [ 1] Administrative Law-habeas corpus-return-burden on applicant to disprove respondent's return: At the hearing of an application for release on a writ of habeas corpus, the burden lies on the applicant to disprove the return made by the respondent (page 166, lines 1-3). [ 2] Administrative Law-supervisory jurisdiction of High Court-courts may 10 not review President's or minister's exercise of discretionary power: The courts have no jurisdiction to examine the grounds on which the President or a minister exercises his discretionary powers, so that when a detention order is made under a provision which states that the minister may make such an order "if satisfied" with respect to the particular person that it is necessary on grounds of public safety, the courts may not inquire into 15 the grounds on which he became satisfied (page 168, lines 28-41). [3] Constitutional Law-President-executive power-discretion-courts may not review President's or minister's exercise of discretionary powers: See [2] above. [ 4] Constitutional Law-President-executive power-vests in President who 20 may exercise it directly or through ministers: The executive power in Sierra Leone vests by virtue of the Constitution in the President but he may exercise it through his ministers or, in the absence of an order assigning a specified power to another, he may exercise it directly; in consequence, detention orders made by the President under Public Emergency Regulations which empower "the Minister" to make such 25 orders, are valid so long as the powers of the Minister of Defence remain vested in the President (page 166, lines 20-34; page 167, lines 5-10). 30 35 40 [ 5] Evidence-burden of proof-habeas corpus-burden on applicant to disprove respondent's return: See [1] above. [6] War and Emergency-emergency legislation-detention orders-courts may not review President's or minister's exercise of discretionary power to issue detention orders: See [2] above. [7] War and Emergency-emergency legislation-detention orders--()rder made by President valid if powers of Minister of Defence remain vested in him: See [ 4) above. The applicants applied by writs of habeas corpus to be released from the custody of the respondent. The applicants were detained by the respondent under a deten~ tion order made under the Public Emergency Regulations, 1970, reg. 7(l)(c). The order directing the detention of the applicants was made and signed by the President who was at the time the substantive Minister of Defence. 162 l KAMARA u. DIRECTOR OF PRISONS, 1972-73 ALR S.L. 162 H.C. The applicants began the present proceedings, applying for an order that writs of habeas corpus should be issued against the respondent. The writs were issued and the respondent subsequently rnade a return in respect of each applicant. At the hearing of the application for release the applicants 5 contended that: (a) it was for the respondent to justify their detention; (b) the detention order was invalid since the President was not competent to make and sign such orders; and (c) the order was made in bad faith and should be set aside. In reply the respondent contended that: (a) it was for the 10 applicants to controvert the return made to each writ; (b) under the Constitution the President could exercise his executive auth- ority either personally or through his ministers and since the President held the powers of the Minister of Defence at the relevant time, he was competent to make and sign the detention orders; 15 and (c) the court had no jurisdiction to inquire into the grounds on which the President exercised the discretionary power to issue detention orders. The applications were dismissed. Cases referred to: (1) Eleko v. Officer Administering the Govt. of Nigeria, [1931] A.C. 662; [1931] All E.R. Rep. 44. 20 (2) Greene v. Secretary of State for Home Affairs, [1942] A.C. 284; [1941] 3 All E.R. 388, applied. 25 (3) Liversidge v. Anderson, [1942] A.C. 206; [ 1941] 3 All E.R. 338. (4) R. v. Brixton Prison Governor, ex p. Ahsan, [1969] 2 Q.B. 222; [1969] 2 All E.R. 347. . (5) R. v. Richards (1844), 5 Q.B. 926; 114 E.R. 1497, applied. 30 Legislation construed: Public Emergency Regulations, 1970 (P.N. No. 61 of 1970), reg. 7(1)(c): The relevant terms of this regulation are set out at page 167, lines 24-34. Constitution of Sierra Leone, 1971 (No.6 of 1971), s.3(5): 35 The relevant terms of this sub-section are set out at page 165, lines 26-32. s.49(1): The relevant terms of this sub-section are set out at page 166, lines 30-34. s.49(2): as amended: The relevant terms of this sub-section are set out at page 166, lines 37-41. s.49 (3): The relevant terms of this sub-section are set out at page 167, lines 2-4. 163 40 5 THE AFRICAN LAW REPORTS s.50(7), as amended: The relevant terms of this sub-section are set out at page 166, lines 20-27. Berthan Macaulay, Q.C. and Yillah for the applicants; C.S. Davies, Sol.-Gen., Bankole Thompson and Kekura for the respondents. DURING,J.: This court was moved by Mr. Berthan Macaulay, Q.C. on behalf of the applicants, and Mr. Yillah, solicitor for the applicants, in this matter on October 13th, 1972 for an order that a writ of 10 habeas corpus should be issued against the respondent herein in respect of each of the applicants. Mr. Yillah, in his affidavit in support of the motion, alleged that the applicants were, on the date the application was made, unlawfully detained by the respon­ dent herein, the Director of Prisons in Sierra Leone. The learned 15 Solicitor-General raised preliminary objections to the application which I overruled, giving my reason later on October 17th, 1972. On October 13th, 1972 I made an order in respect of each of the applicants that r. writ of habeas corpus should issue to be served on the respondent, the Director of Prisons, returnable to 20 this court immediately with liberty to the parties to apply. A return was duly made by the respondent in respect of each writ issued on behalf of each applicant and filed herein. A certificate under s.1(2) of the Indemnity Act, 1972 given under the hand of the Acting Attorney-General on October 21st, 1972 was filed 25 on behalf of the respondent herein. Mr. Yillah, solicitor for the applicants swore to an affidavit on October 27th, 1972 filed herein in which he stated that he had read the return filed in each case and he produced copies of bundles of resolutions allegedly passed by the House of Representatives, attached to his affidavit. 30 Mr. Davies, the Solicitor-General, in his affidavit sworn on October 28th, 1972 and filed herein, exhibited therewith signed originals of the relevant public emergency detention orders. As a result of certain representations made in court by leading counsel for the applicants, there being no objection by the learned 35 Solicitor-General, I directed that the applicants be allowed by the respondent to have interviews with their legal advisers as leading counsel stated that it might be found necessary to advise that a further affidavit be sworn to in answer to the return made by the respondent. As a result of these interviews their solicitor, Mr. 40 Yillah, swore to an affidavit on their behalf on November 7th, 1972. 164 KAMARA u. DIRECTOR OF PRISONS, 1972-73 ALR S.L. 162 H.C. On November 9th, 1972 leading counsel for the applicants moved for the discharge or release of each of the applicants and stated that he would adopt the same argument in each of the applications for release but, in the case of one application, would 5 advance an additional argument. I have carefully considered the arguments advanced by the learned leading counsel for the applicants on the one hand and that of the learned Solicitor-General on the other hand. What in my opinion I have to consider first, is whether or not there was a 10 state of public emergency; secondly, whether or not the order for the detention of each applicant was made by the competent authority; and lastly, whether I would be entitled to inquire into the question whether the person who made the orders acted mala fide, thereby infringing the fundamental rights given to the citizen 15 under the Constitution. After the application was made for release of the applicants, learned ·counsel for the applicants applied for and got leave to make use of the affidavit of Mr. Yillah sworn November 7th, 1972 and filed herein. 20 The additional argument advanced by leading counsel for the applicant, Ibrahim Taqi, was that in his submission, the fact that a person is related to a group of persons is not a circumstance reason­ ably justifiable under s.3( 5) of our Constitution. Section 3( 5) of our Constitution reads as follows: 25 "Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with 30 the situation that exists during that period of public emerg- ency." Mr. Macaulay referred me to the said affidavit of Mr. Yillah sworn November 7th, 1972 and filed herein in support of Mr. Taqi's application. 3 5 In his argument before me the learned Solicitor-General stated that the affidavit sworn to and filed herein by Mr. Yillah, solicitor for the applicants, does not disclose any fact or facts on which leading counsel for the applicants could base his contention that on October 19th, 1970 there was no valid declaration of a state of 40 public emergency in this country. He referred me to the Public Emergency Regulations, 1970. He 165 THE AFRICAN LAW REPORTS submitted and I am in entire agreement with him, that it was for the applicants in each case to controvert the return made by the respondent and further submitted that the applicant in each case has failed to do so: seeR. v. Richards (5). 5 Having read the return in each case and also the affidavit and exhibits attached thereto filed on behalf of either party and also taking into consideration Public Notices which have been brought to my judicial notice in respect of each of the applicants herein, I hold that on October 19th, 1970 there was a valid declaration of a 10 state of public emergency in this country. As regards the contention by Mr. Macaulay that order under which the applicants were detained was neither signed nor made by the appropriate authority, the learned Solicitor-General referred me to the Public Emergency (Detention) (No. 6) Order, 1972 15 which was made and signed by Siaka Stevens, President of the Republic of Sierra Leone, and submitted it was made and signed by a competent authority. He referred me to the Constitution, s.50(7), as amended by the Constitution (Amendment) (No. 2) Act, 1971, which reads as follows: 20 "Appointments to the office of Vice-President, Minister or Deputy Minister shall be made by the President from among the members of Parliament by instrument under the Public Seal and all such Ministers shall hold office during the pleasure of the President: 25 Provided that the Vice-President shall be appointed from among the elected members of Parliament by instrument under the Public Seal." The learned Solicitor-General also referred me to s.49(1) of our Constitution which reads as follows: 30 "Subject to the provisions of this Constitution the execu- tive power in Sierra Leone shall vest in the President and may be exercised either by him directly or through members of the Cabinet, Ministers, Deputy Ministers or public officers subordinate to him." 35 Section 49(2) of the Constitution as amended by the Constitution (Amendment) (No.2) Act, 1971, states as follows: "In exercise of any function conferred upon him by this Constitution or any other law, the President shall, unless it is otherwise provided, act in his own deliberate judgment and 40 shall not be obliged to follow the advice tendered by any other person or authority." 166 l KAMARA u. DIRECTOR OF PRISONS, 1972-73 ALR S.L. 162 H.C. Section 49(3) stipulates as follows: "Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other than the President." I hold that President Siaka Stevens was a competent person in 5 every respect provided under the Constitution to make and or sign the said order complained about as being invalid, it not even having been suggested that he had divested himself of the power which he had at the time he made the order or had assigned it to any other person. In my opinion the submission by Mr. Macaulay that the 10 President was not competent to have made or signed the said order is entirely without substance. Mr. Macaulay in his argument before me, invited me to inquire and find out whether or not the respondent or the person making the order acted mala fide in making the order and also to find out 15 whether or not in making the order a fundamental right given to the citizen was infringed and he further submitted that it was for the respondent to justify the detention of each applicant. He relied on the cases of R. v. Brixton Prison Governor, ex p. Ahsan (4) and Eleko v. Officer Administering the Government of Nigeria 20 (1). He also referred me to the Habeas Corpus Act, 1816, s.4. Regulation 7 (1)(c) of the Public Emergency Regulations, 1970 made under the Public Order Act, 1965 reads as follows: "(1) The Minister may, if satisfied with respect to any particular person, that with a view to preventing him acting 25 in any manner prejudicial to public safety, it is necessary so to do, make an Order- (c) directing that he be detained; and so long as there is in force in respect of any person such an Order as aforesaid 30 directing that he be detained, he shall be liable to be detained in such place and under such conditions, as the Minister may from time to time determine, and shall, while so detained, be deemed to be in legal custody." The learned Solicitor·General referred me to the case of Greene 35 v. Secretary of State for Home Affairs (2)-the judgment of Viscount Mangham, and also the case of Liuersidge v. Anderson (3)-the judgment of Lord Romer. Mr. Macaulay referred me to the judgment of Lord Atkin in Eleko 's case (1) in which he said inter alia ([ 1931] A. C. at 670; 40 [1931] All E.R. Rep. at 49): 167 THE AFRICAN LAW REPORTS "In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice." 5 This principle would truly be said to be observed by our courts and indeed has always been observed, our law being in the main ''in accordance with British Jurisprudence''. In the case of R. v. Brixton Prison Governor, ex p. Ahsan (4) relied on by Mr. Macaulay, the case of Greene v. Secretary of 10 State for Home Affairs (2) relied upon by the learned Solicitor­ General was considered and distinguished. Blain, J. said inter alia ([1969] 2 Q.B. at 245; [1969] 2 All E.R. at 364): "The Court of Appeal report in Greene's case ... is the important one for present purposes .... As is well known 15 Greene's case was one which came under regulation 18B of the Defence (General) Regulations, 1939, made under the provisions of the Emergency Powers Act, 1939, for the pur­ poses of dealing with the war-time emergencies. The first two paragraphs of the headnote in Greene's case ... read thus: 20 ' ... The Home Secretary, whose functions under para. (1) of the regulation are executive and not quasi-judicial, is vested by para. ( 1) with discretionary power, and the court will not inquire into the grounds on which he has formed his belief, nor require him to produce the information on which he has 25 done so. If the information is of a confidential character, he has a right to refuse to produce it in the public interest.' " See the judgment of Lord Macmillan in Liversidge v. Anderson (3). The detention of each of the applicants was made under reg. 7 (1)(c) of the Public Emergency Regulations, 1970 made under the 30 provisions of the Public Order Act, 1965 and in my view and in the light of authorities I should not lift the veil to inquire into the grounds on which the President in making an order for detention in each case became satisfied that with respect to each applicant and with a view to preventing such applicant acting in any manner 3 5 prejudicial to public safety, he directed that he be detained. I am in entire agreement with the learned Solicitor-General that I ought not to inquire as to whether or not the competent auth­ ority acted mala fide or not. Even if it was open to me to hold such an inquiry there is no evidence on which I could have come 40 to a conclusion that the competent authority indeed acted mala fide. 168 SECTION 26 FORTUNE v. SHERBRO MINERALS LTD.,l972-73 ALR S.L.169 H.C. I hold that a state of public emergency was in existence at the time each of the applicants was apprehended and detained and that the respondent did not unlawfully detain any of the applicants nor has it been established in this court that any of them has been unlawfully detained up to judgment. I hold that the orders signed 5 by the President under which the respondent apprehended the applicants and detained each of them were in every respect valid. I refuse the application of each of the applicants to be discharged or released from the custody of the respondent. I set aside the proceedings herein in respect of each applicant, including the writ 10 of habeas corpus issued in respect of each applicant, and order that the costs of the matter in each case be paid by the applicants, such costs to be taxed as between party and party. Applications dismissed. FORTUNE v. SHERBRO MINERALS LIMITED High Court (Tejan, J.): November 23rd, 1972 15 (Civil Case No. 419/70) 20 [ 1] Tort-rule in Rylands v. Fletcher-definition-person who, in course of non-natural user of land, brings on to it anything likely to cause damage if it escapes, strictly liable for all direct consequences of escape unless caused by plaintiff or Act of God: Under the rule in Rylands v. Fletcher a person who, in the course of a non-natural user of his land, brings or 25 accumulates on it anything likely to cause damage if it escapes is liable for all the direct consequences of its escape even in the absence of negligence, unless the escape is caused by the plaintiff or an Act of God; and the rule therefore applies to the escape of water accumulated on land by damming a stream, which escape causes the destruction of property attached to adjacent land (page 173, lines 31-36; page 174, lines 3-7; 30 page 174, line 22- page 175, line 32; page 176, lines 2-4, lines 9-13. The plaintiff brought an action against the defendants claiming damages for the destruction of his property by flooding caused by the escape of water from the defendants' dam. The plaintiff lived in a village close to land leased by the defend- 35 ants. The defendants obtained permission to construct a dam on a stream on their land. The area was surveyed before the work was carried out and precautions against flooding were taken during the construction of the dam. However, in 1968 water escaped and flooded land surrounding the plaintiff's village, destroying some of 40 the plaintiff's crops. The defendants' company paid compensation 169