A COMPARATIVE STUDY OF Re: REPUBLIC v. DIRECTOR OF PRISONS AND ANOTHER; EX PARTE SHACKLEFORD [1981] GLR 554-583, HIGH COURT, ACCRA, 8 AUGUST 1980

Keywords: Justice Cecilia Koranteng-Addow(Mrs), indecipherable signature, Constitutional law—Constitutional Issue—Interpretation of Constitution—Reference to Supreme Court by High Court—Applicant detained under warrant of commitment allegedly issued by special court set up under A. F. R. C. D. 3—Habeas corpus proceedings filed by applicant—Preliminary objection raised to application under Constitution, 1979, art. 118 (2)—The only issue before court whether or not applicant convicted by special court—Whether application to be stayed and matter referred to Supreme Court—Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (A. F. R. C. D. 3)—Constitution, 1979, arts. 35 and 118 (2), *binding doctrines and/or principles of signature

MEMO: THE JUDGE

“One must not lose sight of the fact that in a revolution a lot of things happen and nobody questions the makers of such coup d'etat. However, when they seek to clothe their actions with the responsibility of legality, then sitting as a judge, I will have to [p.577] look at those things clothed with legality... We were all witnesses to what happened during the A.F.R.C. era... A lot of atrocities were committed in the name of the A.F.R.C. Those who were exposed were punished, but others went clean through the net. If the acts of those who went through the net were to be brought up to the court now, can the transitional provisions be pleaded in the name of justice in defence of such acts? If the transitional provisions were pleaded, would that oust the jurisdiction of the court? It will surely not. The transitional provisions can only be pleaded in support of acts or purported acts of the A.F.R.C. Whether or not such acts or purported acts were done in accordance with any procedure prescribed by any law... the word “purported” cannot be used as a blanket to cover all acts which are clearly not acts of the A.F.R.C. as constituted by the Armed Forces Revolutionary Council (Establishment) Proclamation, 1979...”

INTRODUCTION

In Ex-Parte Shackleford, Justice Koranteng-Addow, reasoned that the authenticity of indecipherable signature and/or name on a warrant of commitment to prison cannot oust the court’s power of judicial review. At common law, the established rule had been that a party to a “signed contract” or agreement shall be bound by the terms in it unless it could be shown that s/he had been misled, unduly influenced, coerced or threatened to do the same. More recently, it has been held that in deciding on a document purports to have contractual or binding signature, the court must consider not only the nature and the purpose of the document, but also the circumstances surrounding its use by the parties and their understanding of its purpose by the parties and their undertaking of its purpose at the time. Find below our commentaries and unedited judicial speech of the late High Court Judge.

COMMENTARY

BOUND BY YOUR SIGNATURE? In L’Estrange v F. Graucob Ltd [1934] 2 KB 394, the claimant bought an automatic slot machine from the defendants. She signed an order from which contained a clause which excluded liability for express and implied warranties. When the claimant discovered that the machine did not work she brought an action against the defendants for breach of an implied warranty that the machine was fit for purpose for which it was sold. Judgement was given for the defendants on the grounds that they had excluded their liability by virtue of the exclusion clause which was incorporated into the contract by the claimant’s signature, even though the exclusion was ‘regrettably small print’ and had not been read by the claimant. Ewan Mckendrick (2003) writes that given the widespread use of contracts which rely heavily upon the use of small print, such a rule appears singularly unfortunate, especially in its application to consumers.

The Ontario Court of Appeal in Tilden Rent-a-Car Co. v Clendennin (1978) 83 DLR (3d) 400 recognised that many standard form printed contracts are signed without being read or understood. The court accordingly, held that a signature could only be relied upon as evidence of genuine consent when it was reasonable for the party relying on the signed document to believe that the signer did assent to the onerous terms proposed. The L’Estrange rule does not apply where signature has been procured by fraud, misrepresentation or the defence of non est factum- ‘this is not my deed’) is made. Non est factum is where an illiterate person signed a deed which had been read out to him incorrectly by another person. The effect here is to render the deed void so that a third party cannot obtain good title under it. The rule had to grapple with two competing policies:

Firstly, the injustice of holding a person to a bargain in which he has not brought a consenting mind and the necessity of holding a person to a document which he has signed, especially where innocent third parties rely to their detriment upon the validity of the signature. The non est factum defence is unavailability to the careless. In United Dominions Trust Ltd. v. Western [1976] QB 153, the defendant signed a loan agreement with the claimant company in connection with the purchase of a car and left it to the garage owner to fill in the details, including the price. The garage owner inflated the price of the car and the claimant company paid over the money to the garage owner in good faith. It was held that the onus was on the defendant to show that, allowing the form to be filled in by the garage owner, he had acted carefully as he had wholly failed to discharge that onus and therefore could not invoke non est factum. Having said, we now consider Ex parte Shackleford, which examined the validity of a signature of judicial decision-maker in a constitutional matter.

The Judicial Tribute

JUSTICE Koranteng-Addow: “It is provided by the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (A.F.R.C.D. 3), s. 2 (5) that: “It shall not be lawful for any Court to entertain any action or proceedings whatsoever for the purpose of questioning any decision, judgment, findings, order or proceedings of any Special Court convened under section 1 of this Decree;... It is also provided by section 15 (2) of the transitional provisions of the Constitution, 1979, that: “For the avoidance of doubt it is hereby declared that no executive, legislative or judicial action taken or purported to have been taken by the Armed Forces Revolutionary Council or by any person in the name of that Council shall be questioned in any proceedings whatsoever, and, accordingly it shall not be lawful for any Court or other tribunal to make any order or grant any remedy or relief in respect of any such court.” I do not think the prosecution can just dangle the transitional provisions to frighten off the court...” The background to Ex parte Shackleford is set out in abstract as follows:

FACTS: The Lloyd Shackleford, was a businessman in Accra, married to Elizabeth, who applied to the High Court for a writ or order of habeas corpus on behalf of her partner who on 8 June 1979, through radio announcement, was requested to report at the Air Force Station Burma Camp, Accra, which he did at 1.30 p.m. on that date. He was subsequently, arrested, charged and imprisoned for three years by AFRC Special Court for allegedly, selling above the control price contrary to section 3 (1) L. The warrant of his arrest dated 8 June 1979, numbered A.F.R.C. 83. The issue that arose following the proscription of AFRC regime or the Special Court was whether or not the HC had power to inquire whether Shackleford was in fact tried, convicted and sentenced by the Special Court. We mention in passing that trial considered series of constitutional matters which are not within the scope of this tribute. Our tribute is on the discussions on signature of a “judicial officer”.

At the hearing in July 1980, Koranteng-Addow J, who hinted that the matter in debate involves human rights, said: “When counsel appears before the court and simply says that this matter involves an interpretation of a provision of the Constitution... I think it is plain commonsense that sitting as a judge, I have a right to determine whether or not it is a question involving an interpretation... It is for these reasons that I refused to stay the proceedings pending the appeal....No court would turn a man with this story out of court... if the respondents produce a warrant of commitment with a return showing that the applicant has been tried, convicted, sentenced and committed, then the writ of habeas corpus will not issue, for whether the conviction is wrong or not... the court will be stripped of jurisdiction. But when the applicant says he has never been tried... and gives facts which show that it was practically impossible for him to have been tried, and the warrant of commitment is not regular on the face, then the court has to study the justification meticulously...”

It may be emphasised that this court is doing nothing that is not in accordance with the law. [p.571] If there were no dispute about the authenticity of the warrant of commitment, and it were regular on the face of it, I would concede to the submission of learned counsel, for even apart from the transitional provisions of the Constitution, 1979, and A.F.R.C.D. 3... I will also concede that where the return shows that the applicant is in execution under the judgment of a competent court, an affidavit will not be allowed to traverse these facts... Carus Wilson’s Case (1845) 115 E.R. 759, at p. 769

The Problems With Signature

JUSTICE Koranteng-Addow had issues with the signature on the warrant of commitment to prison. She accordingly, set out as follows: I concede that the law forbids me to supervise the special court even though inferior to this Court. However, it must be proved first that the matter before the court is a matter upon which the special court had adjudicated or purported to have adjudicated, and that this warrant was issued pursuant to the trial... The warrant of commitment must be a legal one. It must show on the face of it, the right to detain... If the person had no jurisdiction to order the detention then that paper cannot justify the detention. That question can only be determined if the identity of the person who issued it is shown.... In all my endeavour I have not succeeded in finding a single case in which the person who signed the order or warrant is not known or identified [p.572]. The copy of the warrant I have been shown is No. 83. It bears a purported stamp of the A.F.R.C. I have not been shown an undisputed A.F.R.C. stamp to compare this with.

It is necessary therefore that the status of the person who signed the warrant must be shown. There must be evidence by which to determine whether the person who signed it was a member of the court or a person competent to issue the warrant...The only thing which makes a warrant genuine is the signature of the person competent to issue it. This one bears the signature of an unknown person, a signature which is not decipherable. It bears a mere scrawl, which has not been identified either by the author or any person familiar with it...or any person entitled to sign; it cannot be a signature for the purpose of validity of a warrant of a commitment. Again and again I adjourned this matter to wait for information which would enable me to perform my judicial function, but was denied this information...There must be somebody who could have sworn that this scrawl on the warrant is the signature of AB and that AB was a private or sergeant or lieutenant and a member of the A.F.R.C. Special Court...How do I know it was signed by the person who was supposed to sign?

Surely if it were signed by an orderly in the office of the A.F.R.C., it would not be a genuine document of the special court... A man's signature is not something you can take judicial notice of. So far as I am concerned, this warrant is an unsigned document. It being unsigned, I am not satisfied it is a genuine act of the A.F.R.C. By this I am by no means challenging the decision or order or act of the A.F.R.C. I am saying that it has not been established that this warrant was issued by the A.F.R.C. Special Court.... The circumstances recounted by the applicant in his affidavit show that he had been taken to the Ussher Fort Prisons with another person with a view to being released. The other person was released. It was not until 23 October 1979 when the warrant of commitment was sent to the prisons even though it is dated 8 June, when the court had not even been set up...

When all these matters are considered, they cast great suspicion on the authenticity of the warrant...
The transitional provisions and A.F.R.C.D. 3. s.2(5)...do not diminish in any way the weight of the burden to be established by a person who deprives another of his liberty; ...until these factual matters have been established. The justification pleaded is that this is a judicial act of the A.F.R.C...The best proof would be the order convicting him. I cannot infer this from the disputed warrant of commitment... the respondents ought to have done more than merely producing a copy of the warrant of commitment with an indecipherable signature. The affidavit in opposition more or less reiterated what had been stated in the return and deposed that the matters on which the applicant relied were not within the knowledge of the deponent so he could not answer them...

It was submitted that the affidavit and report lack particularity and fails to show the ground of the detention, (Ex parte Braimah)...As explained by [Counsel] Nana Akufo-Addo, the attempt made by the respondents to explain the detention does not constitute an acceptable order under the law, and therefore there is no challenge to the matters contained in the affidavits sworn to on behalf of the applicant. ...But a court is not bound to order a prisoner to be discharged merely on the ground of irregularity... In this case, all the court would be satisfied with is whether or not there was a conviction... I say this knowing fully well that I am dealing with the liberty of the subject, but I am also administering law and justice, and I must bow to the Constitution of the land of which the transitional provisions are part, and the law of this land from which A.F.R.C.D. 3 is not separate[p.580]. Some statements were made from the Bar by the senior state attorney that Flight-Lieutenant Ben Odoi and another were being contacted to swear to an affidavit about the trial.

I do not know what they would have said, but suffice it to say that, that statement does not help... The respondents would have done better than merely waving before the court the warrant of commitment like a magic wand and expecting it to do the trick... Since the allegations of the applicant stand unchallenged, I am bound to accept and uphold them... If the applicant were tried on 8 June 1979 and the warrant issued the same day, then one wonders why it was not delivered until the A.F.R.C. had gone out of power... The detention is without a just cause and it is therefore unlawful... I would like to close this judgment with the opening words of Lord Halsbury L.C. in his speech in the case of Cox v. Hakes (1890) 15 App. Cas. 506 at p. 514, H.L.:

“For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of the liberty of the subject. If upon the return to that writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody.” [p.583] There is no justification for the detention of the applicant. He is therefore entitled to immediate discharge. He must be released and set free forthwith.

The Final Word

In this Tribute to JUSTICE Cecilia Koranteng-Addow, we had sought to advise that in whichever capacity we find ourselves, appending our consenting signature to any document, must not be deemed a jolly-ride. It seems clear that the defence of non est factum, is unavailable for the reckless or the careless. As a notable German saying goes- trust is good but control is indeed, always better.


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