REPUBLIC v.

MINISTER FOR THE INTERIOR; EX PARTE BOMBELLI

[1984-86] 1 GLR 204

Division: HIGH COURT, ACCRA

Date: 9 JANUARY 1981,
Before: CECILIA KORANTENG-ADDOW J

Administrative law—Discretionary power—Judicial review—When to be exercised— Discretionary

power conferred on administrative or executive authority by statute—Court to intervene by certiorari
when condition or mandatory procedure for exercise of discretion not observed.

Statutes—Construction—Constitution, 1979, art 4 (7) (a)—Meaning of—Article 4 (7) (a) providing that
“Any Orders, Rules or Regulations made by any person” to be laid before Parliament for 21 days to be
effective—”Orders” to be construed not as executive order but legislative order on application of
noscitur a sociis rule—Executive instrument defined as not in the nature of rules and regulations by
Statutory Instruments Act, 1959, s 5—Statutory Instruments Act, 1959 (No 52 of 1959), s 5—Constitution,
1979, art 4 (7) (a).

Aliens—Deportation—Minister’s discretion—Exercise of—Minister having unlimited discretion under

Act 160, s 12 (1) (f) to order deportation where presence of alien not conducive to the public
good—Proper test for exercising discretion—Court entitled to probe into opinion of minister where
acting mala fide—Aliens Acts, 1963 (Act 160, s 12 (1) (f).

HEADNOTES
It is provided by the Aliens Act, 1963 (Act 160), s 12 (1) (f) that:
“12. (1) An alien is liable to deportation—
(f) if his presence in Ghana is, in the opinion of the Minister, not conducive to the public
good.”

It is also provided by the Constitution, 1979, art 4 (7) (a) that:

“(7) Any Orders, Rules or Regulations made by any person or authority under power conferred in that
behalf (a) shall be laid before Parliament.”

The applicant, an Italian, was in 1975 granted a Ghanaian resident permit. Four months before the
expiration of the permit, he was deported by virtue of the Enzo Bombelli Deportation Order, 1980 (EI 27
of 1980) issued by the Minister for the Interior in pursuance of his discretion under the Aliens Act, 1963
(Act 160), s 12 (1) (f) which provided that an alien was liable to deportation if in the opinion of the
minister, his presence in Ghana was not conducive to the public good. Subsequently, the minister at a
press conference gave his reasons for making the deportation order. In the instant application for certiorari
to quash the order, counsel for the applicant argued, inter alia, that the executive instrument issued by the
minister was invalid because it contravened article 4 (7) (a) of the Constitution, 1979 which mandatorily
required the order to be laid before Parliament for days before becoming effective. On these facts,
[p.205] of [1984-86] 1 GLR 204

Held, dismissing the application:

(1) the exercise of discretionary power conferred by statute on an administrative or the executive
authority would be subject to the supervision of the High Court to see that the power was exercised
legally, ie within the confines of the law, and the basis of control was legality rather than merits.
The review by the court should be based on the legality of the proceedings. However, if the
minister acted within his jurisdiction and no appeal was provided by the statute conferring the
power, his act would be immune from judicial control. It was only when he exceeded his
jurisdiction that a court of law could quash by certiorari his decision or declare it to be legally
invalid. Consequently, where the power exercised came within the power conferred by statute but
was contravened because some condition or mandatory procedure set by the statute was ignored,
the court might intervene and review the decision.
(2) By the canon of interpretation, ie the noscitur a sociis rule, the word “Orders” in article 4 (7) (a) of
the Constitution, 1979 meant “orders” in the form of rules and regulations - not a command such as
the order issued by the minister. According to that rule of interpretation, a word took its meaning
from the company it kept, and “Orders” in article 4 (7) (a) had to be interpreted as “orders” such as
rules and regulations. Consequently, to fall within the definition of article 4 (7) (a) an order must be
a legislative order. And since the Statutory Instruments Act, 1959 (No 52), s 5 defined executive
instruments as “Statutory Instruments other than legislative instruments of a judicial character”,
executive instruments such as EI 27 of 1980 did not partake of the nature of rules and regulations.
They fell outside the orders which under article 4 (7) (a) of the Constitution, 1979 were to be laid
before Parliament before they became effective.
Per curiam. It definitely cannot be in the public interest to publish it or lay before Parliament for 21 days.
If such orders were to be published for 21 days then the minister cannot exercise that power in times of
emergency.
(3) The Aliens Act, 1963 (Act 160), s 12 (1) (f) gave the minister unlimited discretion to order the
deportation of an alien if he was of the opinion that his presence was not for the public good. The
minister was not required to state the reasons or facts upon which he based his opinion. The test to
be applied was subjective and the court could not probe into the minister’s opinion unless it could
be shown that he had acted mala fide. In making the decision the minister was not required to act as
a judicial officer - observing the audi alteram partem rule - but as an executive officer bound to act
for the public good. It was thus left to the minister’s judgment whether upon the facts before him, it
was desirable to make the deportation order. In the instant case, the applicant had failed to show
that the minister had acted mala fide; the failure of the Attorney-General to contest the application
was not evidence of bad faith. The mere fact that the minister was purported to have given reasons
later for the order he made did not in itself amount to dishonesty or fraud on the part of the
minister. R v Leman Street Police Inspector; Ex parte Venicoff [1920] 3 KB 72; R v Brixton Prison
Governor; Ex parte Soblen [1962] 3 All ER 641 at 661; Padfield v Minister of Agriculture,
Fisheries and Food [1968] AC 997, HL; Secretary of State for Employment v ASLEF (No 2)
[1972] 2 QB 455 at 492-493, CA, Congreve v Home Office [1976] 2 QB 629 at 651, CA; Secretary
of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at
1025, CA; In re Okine [1959] GLR 1 at 4 and Republic v Attorney-General; Ex parte Quaye
Mensah [1979] GLR 429 at 440, CA cited.

[p.206] of [1984-86] 1 GLR 204

CASES REFERRED TO
(1) Secretary of State for Employment v ASLEF (No 2) [1972] QB 455; [1972] 2 WLR 1370; [1972] 2
All ER 949, CA; affirming sub nom Secretary of State for Employment v ASLEF [1972] 2 All ER
853.
(2) Congreve v Home Office [1976] QB 629, CA.
(3) Liversidge v Anderson [1942] AC 206; [1941] 3 All ER 338, HL.
(4) Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC
1014, CA.
(5) Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997, HL.
(6) R v Brixton Prison Governor; Ex parte Soblen [1963] 2 QB 243; [1962] 3 WLR 1154; [1962] 3 All
ER 641, CA.
(7) Okine, In re [1959] GLR 1.
(8) Republic v Attorney-General; Ex parte Quaye Mensah [1979] GLR 429, CA.
(9) R v Leman Street Police Station Inspector; Ex parte Venicoff [1920] 3 KB 72.

NATURE OF PROCEEDINGS
MOTION for a writ of certiorari to quash the Executive Instrument No 27 dated 14 July 1980 under
which the applicant was deported from Ghana. The facts are fully stated in the judgment.

COUNSEL
Akainyah for the applicant.
No appearance for the respondent.

JUDGMENT OF CECILIA KORANTENG ADDOW J.

In these proceedings, Mr Akainyah moves on behalf of the applicant, an Italian national, for a writ of
certiorari to issue and bring into this court the Executive Instrument No 27 dated 14 July 1980 to be
quashed. In the same motion, the applicant is asking for a declaration that the resident permit issued to
him and his family has four more months to run.
It is firmly established that a claim for declaration and an application for the prerogative writ of certiorari
cannot be married in one action. It seems counsel might have conceeded this because he made no
reference to the declaratory part of the reliefs in his argument. I therefore consider that the claim for
declaration has been quietly jettisoned. I will only therefore consider the application for certiorari.
The grounds upon which this application is made are that, the respondent did not act fairly, in good faith,
candidly or without prejudice and bias, and also that he did not act in accordance with the due process of
law and natural justice in dealing with the matter of the

[p.207] of [1984-86] 1 GLR 204

applicant. But the main ground for the application is that the respondent did not follow the correct
procedure in issuing the executive instrument under which the applicant and his family were deported.
The original docket in this case got missing, and up to the time of writing my ruling it had not been
traced. The motion for leave to issue the writ was granted by my brother Agyepong J during the long
vacation, ie August-September 1980. The pursuant notice was fixed before me on 27 October 1980. On
that date only a temporary docket was put before me; the original docket containing the original
application papers and the order of the court granting the motion ex parte had not been put before me.
The facts of the case are these: The applicant is an Italian national. He entered Ghana in 1975 and was
given a resident permit which has been renewed at appropriate times. The applicant was in Ghana with his
wife and a thirteen-year-old son. They all had separate permits. The applicant by his affidavit says that he
is a part-owner to the extent of 49 per cent shares of Aurum Industries Ltd, a company operating in the
country, and that he has brought equipments to the value of ¢800,000 into the country, and that all the
equipments were purchased in foreign currency. He deposed that he invested this amount in the country
believing that if he remained law-abiding he would be permitted to remain in the country, and that he had
conducted himself lawfully. Sometime in 1979, the applicant bought cartridges of the type used for
hunting and consigned them from Italy to Tema. He sold the bill of lading to one Mr. Alfred Mensah. He
received half payment of ¢75,000 of the total purchase price. The balance is still not paid. In March 1980
the applicant was invited by the police and questioned about these cartridges. He was informed that the
goods had been collected from the purchaser and on the orders of the Minister of Interior they had been
confiscated, but after he gave his statement explaining the circumstances as to how he came by the
cartridges, he was allowed to go about his business.
On 11 July 1980, the passport of the applicant was seized. On 12 July the immigration authority called at
his house at Labone and more or less placed him under house arrest. On 14 July 1980 he was told that a
deportation order had been made against him. The police collected him from his house and took him to
the Legon Police Station where he was kept for one night. On the next day he was taken to his house to
collect a few items of clothing and his son. He was then escorted under four armed guards to the Aflao
border and told to cross the border and not to return to Ghana.
According to the applicant, on 16 July he read in a copy of the Daily Graphic he obtained at Lome about a
press conference which was held by the Minister of Interior in Accra. At the press conference

[p.208] of [1984-86] 1 GLR 204

the minister is alleged to have given the reasons for his deportation. According to the publication, the
applicant had been deported with his wife and son for “indulging in unlawful importation of fire arms into
the country and dealing in illegal foreign exchange” transactions. The applicant denied all these
accusations and he deposed that in all the interviews he had with the police he was never accused of
importing firearms into Ghana or indulging in illegal foreign exchange transactions. The applicant also
complains that even though the controversy about the importation of the cartridges had been resolved and
concluded three months prior to his deportation, the matter was reopened at a time when armed robbers,
car stealing syndicates and common murderers were rampant in the country. That being the case, he
deposed that in the handling of his case the mind of the Minister of Interior must have been prejudiced
and biased because of the breakdown of law and order. This according to him, is compounded by the fact
that he was deported a day after the brutal murder of Helmut Schmidt, a West German citizen. Since his
deportation, the applicant had learnt that the police had entered his business premises and removed some
of his personal possession including ten out-board motors. The applicant has also learnt, since his
deportation, that he was deported under an Executive Instrument No 27 of 1980. He contends that this
instrument is invalid because it took effect on the same day of its enactment without it having been laid
before Parliament for 21 sitting days.
The executive instrument ordering the deportation of the applicant is entitled: Mr Enzo Bombelli
Deportation Order, 1980 (EI 27 of 1980) which reads:
“WHEREAS in the opinion of the Minister responsible for Internal Affairs the presence in Ghana of ENZO
BOMBELLI, an alien, is not conducive to the public good; NOW, THEREFORE, in exercise of the powers
conferred on the Minister responsible for Internal Affairs by section 13 of the Aliens Act, 1963 (Act 160)
this Order is made this 14th day of July, 1980. ENZO BOMBELLI is hereby ordered to leave Ghana on the
14th day of July, 1980 and thereafter remain out of Ghana.
W C EKOW DANIELS
Minister of the Interior.”

As stated above, the applicant is an Italian national and therefore an alien. Deportation of aliens from this
country is governed by the Aliens Act, 1963 (Act 160). Section 12 (1) sets out the circumstances under
which an alien may be deported. Section 12 (1) reads:

[p.209] of [1984-86] 1 GLR 204

“12. (1) An alien is liable to deportation
(a) if a Court recommendation, for his deportation is effective under the following
subsection or
(b) if he has been found by a Court to be destitute or without visible means of support, or to
be of unsound mind or mentally defective; or
(c) if, being a female, the alien has been found by a Court to be a prostitute; or
(d) if he is prohibited immigrant; or
(e) if he is in Ghana without a valid permit or any of the conditions on which his permit
was granted have been broken; or
(f) if his presence in Ghana is, in the opinion of the Minister, not conducive to the public
good.”

As it is stated in the executive instrument itself, the applicant was deported pursuant to powers conferred
on the minister by section 13 of Act 160 which provides:
“13. (1) The Minister may by executive instrument order the deportation of any person liable to
deportation.
(2) The order may be made subject to such conditions as the Minister may impose.
(3) A deportation order may include the dependants of the person to be deported if the Minister so
directs.”

Section 13 gives the minister the general power to order the deportation of any alien liable to deportation.
Section 12 gives the conditions under which the minister will exercise that power. By section 12 (1) (f)
the minister is specifically given the power to deport any alien whose presence the minister considers to
be not conducive to public good. That is in addition to those described as liable to deportation, the
minister may for the public good decide to make a deportation order against any alien if he finds it
desirable to do so. It may be discerned from the facts of this case that the applicant was deported because
the minister decided that his presence was not conducive to the public good.
It is quite clear that the power given to the minister under section 13 is discretionary. Being discretionary,
Mr Akainyah contends it should be exercised within the confines set by the Constitution, 1979, art 214
which provides:
“214. Where in this Constitution or in any other law discretionary power is vested in any person or
authority,
(a) that discretionary power shall be deemed to imply a duty to be fair and candid;
[p.210] of [1984-86] 1 GLR 204
(b) the exercise of any such discretionary power shall not be arbitrary, capricious or biased either
by resentment, prejudice or personal dislike and shall be in accordance with due process of
law; and
(c) the person or authority, not being a judge or other judicial officer in the exercise of his judicial
functions, in whom the discretionary power is vested shall, by constitutional or statutory
instrument, as the case may be, make and publish Regulations, not being inconsistent with any
provision of this Constitution or of that other law, which shall govern the exercise of that
discretionary power.”

He submitted that the minister acted in breach of those provisions. Secondly, he contended that the order,
EI 27 of 1980, was not made in accordance with the law. He submitted it was made in breach of the
provisions of article 4 (7) of the Constitution, 1979 which provides:
“(7) Any Orders, Rules or Regulations made by any person or authority under a power conferred in that
behalf by this Constitution or any other law,
(a) shall be laid before Parliament;
(b) shall be published in the Gazette on the day they are so laid before Parliament; and
(c) shall come into force at the expiration of a period of twenty-one sitting days of being so laid
unless Parliament before the expiration of that period of twenty-one days, annuls any such
Orders, Rules or Regulations by the votes of not less than two-thirds of all the members of
Parliament.”

My first task is to determine whether the deportation order is an act which is reviewable by the court, and
if so whether certiorari is the proper remedy. The basic principles are that the court is competent to pass
judgment on the legality of acts done by the administrative or executive authority and its officials and that
the court will exercise supervisory control over inferior tribunals and keep them within their allotted
jurisdiction. The exercise of discretionary power conferred by statute on the administrative or the
executive authority will be subject to the supervision of the High Court to see that the power is exercised
legally, ie within the confines of the law, and the basis of control is legality rather than merits. The review
by the court shall be based on the legality of the proceedings. However, if the minister acts within his
jurisdiction and no appeal is provided by the statute conferring the power, his act will be immune from
judicial control.

[p.211] of [1984-86] 1 GLR 204

It is only when the minister exceeds his powers that a court of law can quash his decision or declare it to
be legally invalid. This jurisdiction is exercised principally by the award of certiorari to quash. In the
exercise of statutory powers directly affecting the interests of individuals it is nearly always reviewable at
the instance of the person having appropriate locus standi. The power of the court to supervise the
exercise of powers conferred by statute is based on the fundamental principle inherent throughout the
English legal system which we have received in this country. These powers can be validly exercised only
within their true confines. It follows that where the power exercised comes within the power conferred by
statute but is contravened because some condition set by the statute is ignored, the court may intervene
and review the decision thus made. The same will happen if a mandatory procedure laid down by the
statute is not followed. This is because where the law required that certain steps are to be taken, it is to be
implied that the action is valid only if they are duly taken: see Wade, Administrative Law and de Smith,
Judicial Review of Administrative Action, chap 3.
In Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455, CA, the English Court of
Appeal had to consider whether the decision of a minister acting under a power similar to the power given
by Act 160, s 12 (1) (f) was subject to judicial review or exempt from it. Dealing with the matter Lord
Denning MR stated at 493:
“If it appears to the Secretary of State’? This, in my opinion, does not mean that the Minister’s decision is
put beyond challenge. The scope available to the challenger depends very much on the subject matter with
which the Minister is dealing. In this case I would think that, if the Minister does not act in good faith, or if
he acts on extraneous considerations which ought not to influence him, or if he plainly misdirects himself in
fact or in law, it may well be that a court would interfere; but when he honestly takes a view of the facts or
the law which could reasonably be entertained, then his decision is not to be set aside simply because
thereafter someone thinks that his view was wrong.”

In Congreve v Home Office [1976] QB 629 at 651, CA also, Lord Denning MR said among other things:
“It would be a misuse of the power conferred on him by Parliament: and these courts have the authority -
and, I would add, the duty - to correct a misuse of power by a Minister or his department, no matter how
much he may resent it or warn us of the consequences if we do. Padfield v. Minister of Agriculture,
Fisheries and Food [1968] A.C. 997 is proof of what I say. It

[p.212] of [1984-86] 1 GLR 204

shows that when a Minister is given a discretion - and exercises it for reasons which are bad in law - the
courts can interfere so as to get him back on to the right road.”
These cases show that although ministers may be given what appears to be absolute powers to deal with
certain specified matters, yet it is open to the High Court in the exercise of its supervisory powers over
inferior tribunals to interfere and intervene. But in all these matters, the power, whether it is subject to
judicial control or not, as the cases show, depends upon the interpretation to be put on the wording of the
statute conferring that power. It is the interpretation placed upon the statute which will determine the
nature and limits of the power conferred on the minister.
The wording of the provision, ie section 12 (1) (f) of Act 160 under which the minister purported to act
are: “An alien is liable to deportation if his presence in Ghana is, in the opinion of the Minister, not
conducive to the public good.” This gives the minister a very unlimited discretion to order the deportation
of an alien without stating the reasons or facts upon which he based his opinion. I think the test to be
applied here is a subjective one. If the minister said that in his opinion the presence of the applicant was
not for the public good, the court cannot probe into that opinion unless it could be shown that he acted
mala fide. That the minister had the power to make the deportation order is a fact which does not admit of
any dispute. Counsel for the applicant concedes that fact.
The question is whether certiorari lies in this case. The courts will not generally order a certiorari to quash
a legislative order but they may award to quash an administrative order, if the minister was required to act
judicially. Legislative acts deal with general enactments, ie laws which affect the general public. Such
laws or enactments are not generally controllable by the courts. Administrative acts however include the
adoption of a policy, the making and issue of a specific direction or order or the application of the general
rule to a particular case in accordance with the requirement of policy or expediency. It is said that every
measure duly enacted by Parliament is regarded as legislation, but an order made under an enabling
legislation is usually classified as administrative. Therefore an order which applies to a particular person
cannot be regarded as a legislative act: see de Smith, Judicial Review of Administrative Action (3rd ed), p
60. A deportation order can only be an executive or administrative act. Therefore it should generally be
subject to judicial control.
This is a convenient point to deal with the second ground of the application, ie whether EI 27 of 1980
passes the test in article 4 (7) of
[p.213] of [1984-86] 1 GLR 204

the Constitution, 1979. It is the mainstay of the application. Was the minister required to publish the order
in the Gazette, and lay it before Parliament for 21 sitting days before the order became effective? Article
(7) of the Constitution provides that “Any Orders, Rules or Regulations made by any person or authority
under a power conferred in that behalf €” shall be laid before parliament, etc. The question here is
therefore whether the executive instrument ordering the deportation of the applicant is an instrument
which should have been laid before Parliament to be effective. Although an “order”, the question is
whether it falls within the meaning of “Orders” as contemplated by article 4 (7) of the Constitution, 1979.
Going by the wording of article 4 (7) one is tempted to think that such an order as the one issued by the
minister for the deportation of the applicant falls within the “orders” covered by article 4 (7). On a closer
look and proper interpretation of the sub-article it becomes obvious that such an order as the one issued
by the minister falls outside the scope of article 4 (7). By the canon of interpretation, namely the principle
of the rule noscitur a sociis one readily sees that the word “Orders” in article 4 (7) can only mean “orders”
in the form of rules and regulations - not a command such as the order issued by the minister. According
to this rule of interpretation, a word takes its meaning from the company it keeps, and “orders” in article 4
(7) should be interpreted as “orders” such as rules and regulations. To fall within the definition of article 4
(7) an order must be a legislative order. Although a statutory instrument, an executive instrument is
neither legislative nor an instrument of a judicial nature. Section 5 of the Statutory Instruments Act, 1959
(No 52 of 1959) defines executive instruments as “Statutory Instruments other than legislative
instruments or instruments of a judicial character.” Since executive instruments do not partake of the
nature of rules and regulations I would think they fall outside the orders which are to be laid before
Parliament before they become effective. It definitely cannot be in the public interest to publish it or lay
before Parliament for 21 days. If such orders were to be published for 21 days then the minister cannot
exercise that power in times of emergency.
At the first blush I was taken in by the argument of Mr. Akainyah, namely that since the minister’s order
of deportation was not laid before Parliament it offended against article 4 (7) of the Constitution. On
second thoughts, however, I find that that view cannot be correct.
The other ground of the application also hinges on the Constitution. Counsel has submitted that the
exercise of the minister’s power to deport the applicant was in breach of article 214 of the Constitution.
Reading Act 160 by itself without any gloss or interpolations from the

[p.214] of [1984-86] 1 GLR 204

Constitution, I would say that the Act left the question as to whether an alien should be deported entirely
within the discretion of the minister. In making the decision, he is not required to act as a judicial officer,
but an executive officer bound to act for the public good, and it is left to his judgment whether upon the
facts before him it is desirable that he should make a deportation order. The test to be applied is
subjective, not objective. The Act does not make room to inquire into the reasoning of the minister. I say
this being fully aware that in recent years there has been a shift in approach to judicial interpretation from
the subjective to the objective test. This is well demonstrated in a number of cases.
The subjective test applied by the majority of the law lords in Liversidge v Anderson [1942] AC 206, HL
has gradually been eroded. The pendulum has swung in the direction indicated by the dissenting judgment
of Lord Atkin. Lord Denning has taken even a bolder step than the indication given by Lord Atkin. On
this subject I have found Denning’s book on The Discipline of Law most invaluable. In Secretary of State
for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 the English Court
of Appeal had to grapple with a provision analogous to our section 12 (1) (f) of Act 160. Lord Denning
reviewing the history of the phrase: “If the Minister is satisfied” said at 1025:
“Much depends on the matter about which the Secretary of State has to be satisfied. If he is to be satisfied on
a matter of opinion, that is one thing. But if he has to be satisfied that someone has been guilty of some
discreditable or unworthy or unreasonable conduct, that is another.”

In the present case what the Act 160 requires of the minister to be satisfied is on a matter of opinion.
Nine years prior to the Tameside case (supra) the House of Lords unanimously held in Padfield v Minister
of Agriculture, Fisheries & Food [1968] AC 997 that a statutory discretion conferred on a minister to act
as he thought fit was not wholly unfettered but had to be used to promote the policy and objects of the act.
With specific reference to orders of deportation, the attitude of the English courts has been summed up in
an invaluable book, The Law of Habeas, Corpus by R Sharpe where it is stated at p 118:
“On the other hand, the judges have been wary of the possibility of an abuse of such a wide power, and have
consistently maintained that on Habeas Corpus, the court could go behind a deportation and detention order
if it were shown that the Minister had acted outside the proper ambit of the legislation. There appears to be
no case where the courts have actually gone behind

[p.215] of [1984-86] 1 GLR 204

the order, but there can be little doubt that they have power to do so if a proper case is made out.”

In R v Brixton Prison Governor; Ex parte Soblen [1962] 3 All ER 641 at 661 Lord Denning left no doubt
that the court could “always go behind the face of the deportation order in order to see whether the
powers entrusted by Parliament have been exercised lawfully or not.” In the cases of deportation that I
have referred to above, habeas corpus was the remedy used by the judiciary to control the executive.
However, it is my view that certiorari is equally an effective weapon in the armoury of the law of judicial
review, depending upon the grounds of complaint.
The attitude of our courts with regards to their powers to review executive acts is expressed by Smith J in
In re Okine [1959] GLR 1 at 4 where he said:
“Examples of matters into which the Court can inquire and in which it could interfere are, therefore, the bona
fides of the Minister where this is impugned, the genuineness of the Detention Order itself, the identity of the
applicant with the person referred to in the Order, the nationality of the applicant and, I would say, the
overstepping of statutory limits by the Minister. Such matters as these are relevant to the legality of the
detention (R. v. Home Secretary Ex parte Budd (1942) 1 All E.R. 373).”

I have also been referred to the case of Republic v Attorney-General; Ex parte Quaye Mensah [1979]
GLR 429, CA. It was a case of habeas corpus application and it clearly demonstrates the shift in approach
to these matters from the position in Liversidge v Anderson (supra). Charles Crabbe JA (as he then was)
stated at 440:
“Perhaps the time has come when we in these courts - if we have not already done so - should declare our
inability to respond reasonably respectfully to doctrines and propositions of law which have been out-moded,
which have been discredited in the land of their birth. One such proposition is Liversidge v. Anderson.”

In that case the Court of Appeal held that the mere recital of an executive instrument was not sufficient to
justify the detention of the applicants. That was a case of habeas corpus and the respondents were
required by statute “to submit a report in writing stating the grounds of detention.” The court’s decision
meant that the mere production of an executive instrument did not satisfy this statutory requirement. But
there is no analogous provision under Act 160 which required the

[p.216] of [1984-86] 1 GLR 204

minister at any time to submit a report on any order of deportation he makes against an alien. The court
will not generally inquire into the reasons of the minister for making deportation order against an alien
under Act 160, s 12 (1) (f), if the minister did so for the good governance of the country unless his bona
fides were put in issue.
In interpreting the statutes conferring such discretionary powers, the English courts have insisted that the
authority should exercise the power in compliance with the implied legal requirements. Some of these
implied legal requirements are that the minister in exercising the power must act in good faith, he must
not act arbitrarily, but candidly and fairly. The duty to act fairly implies a duty to adopt a fair procedure
and to observe the rudiments of natural justice. All these principles may now be implied in the power
given to the minister to deport an alien under Act 160 by virtue of the Constitution, 1979. But my
interpretation of the wording of the relevant provisions under Act 160 conferring the power to make a
deportation order is that the minister is not required to hold an inquiry before he makes the order. He is
not required to act as a judicial tribunal. His duty under the Act is purely executive. He is not required to
apply the maxim audi alteram partem. As an executive officer, he is bound to act for the public good and
it is left to him to decide whether it is desirable that he should make the order. That is looking at the
power from the narrow point of view of Act 160. However, the Constitution, 1979 sheds a new light on
the subject. By article 214, very refreshing provisions are made whereby the minister’s power may be
judged by all the considerations under which the English courts have considered powers of similar nature.
The Constitution seeks to remove arbitrariness from the exercise of discretionary power; it seeks to ensure
that the people are ruled by law and not by men. No discretionary power can be exercised without
reference to the provisions of the Constitution.
The order of deportation made by the Minister of Interior should be viewed through the new lights shed
by the Constitution, 1979, specifically article 214. This is what counsel has sought and prayed for in this
application. His argument boils down to this fact that EI 27 of 1980 was made in excess of the powers
conferred upon the minister. What he actually says is that the minister did not comply with the provisions
of article 214. This calls for interpretation of that article and its enforcement. By article 118 of the
Constitution, 1979 such a function is reserved for the exclusive jurisdiction of the Supreme Court. If
counsel’s argument is valid then the matter should be referred to the Supreme Court for determination.
But before doing that I will make a brief review of the facts upon which the applicant proceeds. The facts
verified by the applicant have not been controverted. The minister was served with the motion on

[p.217] of [1984-86] 1 GLR 204

notice. Speaking from the Bar, Mr. Kwaw-Swanzy said he personally went to the ministry to ensure that
the motion was served. Later I ordered the issue of hearing notices. These were also served under the
direction of counsel on the private secretary to the minister. In spite of all that the minister was neither
represented nor was any paper filed on his behalf, all the allegations made against him went unchallenged.
The facts verified by the applicant are that the applicant was arrested and deported without being told of
what he had done or the reason for his expulsion. That after he had been deported, the minister held a
press conference and allegedly gave reasons for his action. The minister made allegations for which the
applicant could have been prosecuted, if true. But the applicant denies all these allegations. He contends
that the minister did not act fairly in ordering his deportation, because he was denied the right to be heard.
However, since these facts have not been controverted, the only issue is whether the order made in these
circumstances infringes articles 4 (7) and 214 of the Constitution, 1979. The applicant challenges the
procedure by which the order was made, the good faith of the minister and the reasons for the order. This
is not a complaint against the provisions of Act 160. He is not saying that the minister went outside the
powers conferred by the Act. He does not object to the order because the minister acted outside the ambit
of the Act. He is asking for judicial intervention on the basis of infringement of the provisions of the
Constitution, 1979. The onus of proving bad faith therefore lies on the applicant. He says the minister said
(after the order had been made) that he was deported because he indulged in illegal foreign exchange
transactions and that he was involved in illegal importation of fire-arms. He says these facts are not true,
so the minister did not act in good faith.
Good faith is contrasted with bad faith. If the minister did not act bona fide, then he acted mala fide. In
his invaluable book, de Smith says bad faith in relation to the exercise of statutory powers consists of
dishonesty, or fraud and malice. When power is exercised with a view to achieving an object other than
that stipulated by the Act, that power is exercised fraudulently; it is exercised with malice if its exercise is
motivated by personal animosity towards those affected by the exercise.
The power to deport is given to the minister to expel from Ghana undesirable aliens whose presence in the
country is not conducive to the public good. Act 160 did not impose any condition on the exercise of this
power. He is given a subjective power. Before the present Constitution came into being it was implied
that the exercise of the discretion was subject only to the observance of the tenets of the principles of
good faith. As a prudent man there is no doubt that the minister would take all relevant matters into
consideration in arriving at

[p.218] of [1984-86] 1 GLR 204

his decision, even though he is under no legal duty to allow the deportee a judicial hearing.
I would also say that even though silence or refusal to refute an allegation made by a person may be
construed as an admission of that fact, I would hesitate to draw the inference that failure by the
Attorney-General in this case to contest the application shows bad faith in the minister. Nothing has been
said about the way the applicant was deported which to my mind shows that the minister acted mala fide.
The mere fact that he is purported to have given reasons later for the order he had made, and which said
reasons the applicant denies, does not by itself amount to dishonesty or fraud on the part of the minister,
nor does the negative attitude of the Attorney-General impute malice. The applicant alleged bad faith, but
it is not established. In the absence of bad faith I hold that the EI 27 of 1980 made under Act 160 cannot
be impeached.
Now the Constitution, 1979 makes specific provisions to qualify the exercise of the power. It is trite law
that whenever there is a conflict the general provision of the Act must bow to the specific provisions of
the Constitution. The power must only be qualified by the limits set by the Constitution. Looking at EI 27
of 1980, nothing can be found illegal about it in the context of Act 160. And the basis of the court’s
control is illegality of the order. There is none in this case within the context of the Act. Even though the
recent cases show that the pendulum of interpretation has swung away from strict adherence to a more
liberal one, this in my view is a case in which the High Court would not rush to intervene for the purpose
of quashing the order made by the Minister of the Interior. As the applicant himself says in paragraphs 32
and 33 of the affidavit in support of the application, the time at which the order was made was a time
when public order needed drastic attention. There was what has been described as an “emergency”
condition. I would therefore have dismissed the application if the applicant did not seek the enforcement
of the provisions, of the Constitution, 1979.
Mr Akainyah has argued forcefully that since the minister made allegations of crime against the applicant,
the latter ought to have been tried by a court of competent jurisdiction or given a hearing and that he
could only have been deported after the observance of due process of law; that he should have been heard
before being adjudged guilty of the crimes alleged against him. It would mean therefore that if the
applicant was deported for the reasons given in the newspapers and allegedly given by the minister, then
the applicant should have been given the chance to defend himself before the decision to deport him
[p.219] of [1984-86] 1 GLR 204

should have been made. In other words the minister should observe the audi alteram partem rule before he
ordered the deportation of any alien.
It is my view, however, that in ordering deportation, the minister is exercising a purely executive function
which should not import any duty to act judicially: see R v Leman Street Police Station Inspector; Ex
parte Venicoff [1920] 3 KB 72.
In times of emergency, it would surely be impracticable to give a hearing to an alien before deportation. I
would think that Act 160 gives unfettered discretion to the minister. I would therefore state a case to the
Supreme Court for determination of the questions:
(1) whether by the provisions of article 214 of the Constitution, 1979, the minister is required to act
judicially in ordering the deportation of an alien; and
(2) whether an executive instrument is an order within article 4 (7) of the Constitution, 1979, requiring
it to be laid before Parliament for 21 sitting days.
I feel I must record my appreciation to Mr Akainyah for the help he has given me in this matter and to
commend him for the able manner in which he has argued this application.

DECISION
Application for certiorari refused.
Case stated for interpretative opinion of Supreme Court.
J. A. A.