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  • 1959-12-22
  • GLR 457463
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IN RE A COMPLAINT TO POLICE BY BOTWE MENSAHAND IN RE AN APPLICATION FOR MANDAMUSDuties of Police?-Arrest?-Police obligation to report arrests to Magistrate is not an obligation to charge?-Conditions precedent for Mandamus.


On the 6th November, 1958, Dr. Danquah received a letter dated the previous day from someone at Tafo, in Akim Abuakwa, complaining of extortion, fraud and intimidation, allegedly committed by some members of the Akim Abuakwa branch of the Convention People?'s Party of Bomso near Abomso against some members of the United Party branch of that area. Dr. Danquah wrote the same day to the Prime Minister, bringing the complaint to his notice, and requesting the appointment of a Commission of Enquiry to enquire into the allegations. Dr. Danquah sent a copy of this letter to the Minister of Interior. The Prime Minister did not agree that the appointment of a Commission of Enquiry was the appropriate step to be taken in a case of the type complained of. He felt, however, that the matter should be reported to the Police for investigation and necessary action. A certain amount of correspondence passed between Dr. Danquah and the Secretary to the Prime Minister on the subject. Finally, the Prime Minister caused a copy of the correspondence to be forwarded to the Police, and by letter dated the 2nd December, 1958 he had Dr. Danquah advised of the steps taken.On the 3rd January, 1959, Dr. Danquah wrote to the Assistant Superintendent of Police, Oda, and asked to know how far his investigations into the complaint had gone. He sent a copy of that letter to each of the following persons: The Commissioner of Police, the Permanent Secretary to the Minister of the Interior, and the Secretary to the Prime Minister. It appears that Dr. Danquah had no reply from the Superintendent of Police, Oda; so on the 22nd May 1959, he addressed a letter to the Commissioner of Police in which he referred to information he had received that the Police had made certain arrests in consequence of the complaint, and that the persons so arrested had been granted police bail. In that letter Dr. Danquah said, among other things,?"I think the matter has reached a stage where I should appeal to you personally as Head of Ghana Police, to see that the Police at Oda perform their duty of taking persons held on bail to a Court for the Court to determine what is to be done to those accused of extortion and bribery.?"In reply to that letter the Commissioner (C.I.D.) Ghana Police, wrote to Dr. Danquah on the 17th June, 1959, informing him that the Police had examined the matter very carefully, but that statements made by persons against whom the offences were alleged to have been committed did not disclose a prima facie case. He concluded:?"4 Having failed to support the allegation contained in their affidavits when given the opportunity to do so by interviews with the Police, any evidence [p.458] there might have been to justify proceedings was not forthcoming. Under these circumstances, there was no alternative to the discontinuance of enquiries, and Botwe and Mensah were advised accordingly.?" (Botwe and Mensah were the complainants.)Being dissatisfied with this reply, Dr. Danquah wrote another letter to the Assistant Superintendent, Ghana Police, Oda. In the last two paragraphs he said:?"3 The Commissioner of Police has caused me to be informed that the Police do not intend to take the matter to Court. As, however, you are the person directly in charge of Police in the Akim Oda district, I wish to make this specific request to you that the persons complained against should be taken before the Magistrate and charged as required by law.?"?"4 I hereby give you notice that if within a fortnight from date the accused persons are not properly charged and taken before the Court I shall apply to the Court for a Mandamus to compel you to do your duty in the matter.?"To that letter the Commissioner of Police replied by letter dated the 18th August, 1959, and said he had nothing to add to the letter of the 17th June 1959, written by the Commissioner (C.I.D.). He said that if Dr. Danquah did not choose to avail himself of the provisions of Section 63 of the Criminal Procedure Code (which allows any person who believes that an offence has been committed by any other person to institute prosecution against the offender) it was left to him to take the course indicated in his last letter.It was in consequence of the closing by the Police of investigations into the alleged offences, and their refusing Dr. Danquah?'s demand that they should take the persons accused before a Magistrate on a charge, that the present proceedings were taken (Suit No. 27/1959).In the notice filed by the applicants pursuant to the leave granted by the Court to apply for an order of Mandamus, the applicants claimed an order upon the Commissioner of Police and the others:?"to carry out his duties (under Section 17 of the Criminal Procedure Code) to report the complaint by Kwasi Botwe and Kwasi Mensah against Kofi Akwa and others for extortion, fraud, etc. to a Magistrate according to law, in terms of the relief sought in the statement accompanying the affidavit filed in support of the application.?"The relief sought in the statement referred to was as follows:?-?"An Order of Mandamus directed to the Commissioner, Ghana Police, Accra to order him to perform his duty as required by section 17 of the Criminal Procedure Code to report the Complaint of extortion, fraud, and intimidation to the Magistrate?'s Court.?"



(His lordship set out the facts, and continued:?-)

Among the conditions precedent for the issue of Mandamus are the four set out in paragraph 7 of the statement of the applicants in support of their affidavit, namely:

(i) there must be a legal right to be enforced, the purpose of which cannot be enforced by any other legal remedy equally convenient, beneficial and appropriate;

(ii) there must have been a distinct demand and refusal to do the act;

(iii) the duty to be performed must be some public or quasi-public legal duty; and

(iv) it must appear that the order would be effective.

The arrests made by Police in pursuance of the complaints of the applicants were admittedly without warrant, and therefore the provisions of sections 16 and 17 of the Criminal Procedure Code apply:

(1) sub-section 1 of section 16 requires that where a person is so arrested the police officer in charge of the police station to which he is taken should enquire into the case, and if upon completion of the enquiry there is no sufficient reason to believe that he has committed any offence such person should be released forthwith; [p.460]

(2) sub-section 2 provides that if the person so arrested has committed a crime, then he should either be taken before a Magistrate?'s Court on a charge within twenty-four hours, or be granted bail to appear before such Court on a charge;

(3) sub-section 3 reads:?-?"If, on a person being so taken into custody as aforesaid, it appears to the officer aforesaid that the enquiry into the case cannot be completed forthwith, he may release the said person on his entering into a bond, with or without sureties for a reasonable amount, to appear at such police station and at such times as are named in the bond, unless he previously receives notice in writing from the officer of police in charge of that police station that his attendance is not required, and any such bond may be enforced as if it were a bond conditional for the appearance of the said person before a Magistrate?'s Court for the place in which the police station named in the bond is situate;?"

(4) section 17 reacts as follows:?-?"Officers in charge of police stations shall report to the nearest Magistrate the cases of all persons arrested without warrant within the limits of their respective stations whether such persons have been admitted to bail or not.?"

In my opinion, the proper construction to be placed upon sec. 16 (3) is that where the enquiries cannot be completed forthwith the person arrested should be granted bail to report on a subsequent day or days for the enquiries to be continued, and that if (when the enquiry is completed on a subsequent date) the Police officer in charge should find that there is no sufficient reason to believe that the person has committed any offence, the officer in charge should at that date inform the person arrested in writing that his attendance under the bond is no longer required.

In other words sec. 16 (1) gives the officer power on the very first day of the arrest of a person without warrant to decide not to take further step in the complaint against the arrested person, while sec. 16 (3) gives the officer power to take a similar decision on any subsequent date, so long as the person arrested has not been brought before a Magistrate?'s Court on any charge arising out of the complaint upon which he was arrested. These provisions of section 16 show that there is no imperative duty upon a police officer to bring each and every single person arrested without warrant before a Magistrate?'s Court on a charge. The power given to him to bring an arrested person before the Magistrate?'s Court is only permissive and enabling, not obligatory or mandatory.[p.461]

Sec. 16 (2), then, imposes upon the officer-in-charge the duty where, in consequence of investigations held, he has formed the opinion that there is a prima facie case, either to take the person arrested without warrant before a Magistrate?'s Court within 24 hours, or else to admit him to bail. Sec.16 (3) puts the officer-in-charge under the duty, where there is no time to complete the investigation forthwith, to admit to bail the person so arrested, the latter to report at stated periods. Bearing in mind that these provisions of the Ordinance are for the protection of the liberty of the subject, I am of the opinion that the duty imposed upon the police officer by section 17 (?"to report to the nearest Magistrate the cases of all persons arrested without warrant?") is mandatory, and that it applies not only

(1) to persons so arrested against whom as a result of enquiries made forthwith the Police have formed the opinion that there is a prima facie case, whether they are in custody, or are on police bail for Court, but also

(2) to persons who have been so arrested, and who are on police bail to report to the police station for enquiries to be made into the complaint against them.

Now to the conditions precedent upon which Mandamus should issue, and first it must be pointed out that all the conditions must be shown to exist together, otherwise Mandamus will not issue. I shall deal first with the 2nd condition. In Halsbury's Laws of England, 3rd edition, volume II, page 106, paragraph 198, under the heading ?"Demand for performance must precede the application?", the principle is stated thus:

?"As a general rule the order will not be granted unless the party complained of has known what it is he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the Mandamus desired to enforce, and that that demand was met by a refusal.?"

The first question is, What is the duty of the Police under section 17 of the Criminal Procedure Code which the applicants desire to enforce? The answer is, ?"To report to the nearest Magistrate the cases of people arrested without warrant and admitted to bail?". The next question is, Does the evidence before the Court show that there has been a distinct demand made by the applicants to the Police to perform that particular duty, and that that demand has been met [p.462] with refusal? The answer is that the applicants have never demanded the performance of that duty. They demanded that the said Kwasi Botwe and Kwasi Mensah should be taken before a Magistrate and charged with certain offences, something fundamentally different from the reporting which they now seek to enforce. The Police have had no opportunity of considering the new demand, or of saying whether or not they would comply with it.

Next, the first of the conditions precedent (as set out above) is that there must exist a legal right, which must reside in the person who desires its enforcement (see Halsbury, 3rd edition, volume II, page 105, paragraph 196, and the cases there cited; see also Short and Mellor on Crown Office Practice (1908) edition, page 201.

In the case of Reg. v. Guardians of Lewisham Union ([1897] 1 Q.B. 498) a metropolitan district Board of Works applied for Mandamus to the Guardians of the Poor of the district, commanding them to enforce the provisions of the Vaccination Acts generally in their district, and particularly in certain special instances. The Board of Works were the sanitary authority in the district, and were charged by the Public Health (London) Act, 1891, with the duty of putting in force the powers vested in them relating to public health and local Government, some of which powers related to and included the prevention of infectious diseases, including small-pox. It was held that the Board of Works had no legal specific right to enforce the performance by the guardians of their duties under the Vaccination Acts, and therefore were not entitled to a Mandamus.

In the case of Reg. v. Twickenham Rent Tribunal. Ex parte Dunn. ((1953) 2 A.E.R. 734), the applicant was wife of a tenant. Her husband had deserted her in the matrimonial home, which was rented premises subject to the provisions of the Rent Control Acts. She received maintenance of 500 from her husband upon an order of the High Court, and she paid the rent for the premises. She applied to the Rent Tribunal to fix a reasonable rent for the premises, as she felt the rent she was paying was more than she could afford. The Tribunal refused to make the assessment, whereupon she applied for Mandamus. It was held that the only person who could apply to the Tribunal to fix a reasonable rent for the premises was the tenant. The applicant was not the tenant of the premises; as a wife she could not be an agent of the husband, unless so authorised by the husband or except to pledge his credit for necessities. Mere payment of the rent by her did not clothe her with a legal right to the duty which she desired enforced, and Mandamus was refused. [p.463]

Holding the view which I do, that section 17 of the Criminal Procedure Code is for the protection of the liberty of the subject, so that he should not be harassed unnecessarily by the Police, and so that if the Police think they have any case against a subject arrested without warrant they should bring him before the Court without delay, I think the whole object of the provisions would be defeated if those same provisions should clothe a complainant with the legal right to insist that the person who has been subject to arrest without warrant upon the former?'s complaint must of necessity be dragged to Court and charged, even though, upon investigation of the complaint, the Police found no reasonable ground for believing that he had committed any offence.

Learned Counsel for the applicants seems to be of the opinion that Magistrates in this country take the place of Public Prosecutors in Britain. That opinion is an error. Magistrates are judicial officers; they do not institute, or direct, prosecution.

As to the 4th condition, Mandamus will not issue where it appears that it would be futile in its result. See Halsbury, 3rd edition, volume II, page 106, paragraph 199. Thus in the case of Reg. v. Wilson & ors. ((1880) 43 L.T. 560) Mandamus to command a vicar to fix a certain hour for the vestry meeting was refused because it would not prevent the vicar calling a meeting at any time he chose. As stated in the letter dated the 17th June, 1959, written by the Commissioner (C.I.D.), Ghana Police, to Dr. Danquah, the Police have already notified Kwasi Botwe and Kwasi Mensah, and in compliance with section 16 of the Criminal Procedure Code they may also have informed the persons arrested that they are no longer required to report to the Police Station on their bail bond. No useful purpose would be served by directing a Mandamus to the Police to make a report under section 17.


<P>This application must fail. It is accordingly refused, with costs fixed at 25 guineas</P>

Plaintiff / Appellant

Dr. J. B. Danquah

Defendant / Respondent

Bing Q.C., Attorney-General


(1) R. v. Guardians of Lewisham Union ([1897] 1 Q.B. 498);

(2) R. v. Twickenham Rent Tribunal. ex parte Dunn. ((1953) 2 All E.R. 734);

(3) R. v. Wilson & ors. ((1880) 43 L.T. 560).

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