An Accra High Court presided over by Mr Justice Yaw Appau on Tuesday rejected an application on behalf of the Quality Grain convicts for leave to file a habeas corpus against the Director of Ghana Prisons.
The solicitors of Kwame Peprah, former Minister of Finance, Ibrahim Adam, former Minister of Food and Agriculture and George Simpa-Yankey, Director of Legal Sector, Private and Financial Institutions of the Ministry of Finance, brought the application.
The three are serving between two and four years in jail after they were found guilty by a Fast Track High Court for their involvement in the Quality Grain Case.
Mr Justice Appau declared: "This application lacks merit and ought to be disqualified because the applicants have not been able to prove prima facie that the convicts' detention was unlawful."
He noted that, "habeas corpus is a prerogative writ issued to challenge the detention of a person either in official custody or in private hands.
"If the court is satisfied that the detention is prima facie and unlawful, the custodian is ordered to appear to justify it and if he cannot do so, the person is released," he said.
He said a competent court of jurisdiction convicted the applicants and, therefore, the use of habeas corpus by the applicant was not appropriate, as the writ sought to appeal against the sentences of the convicts.
"If the applicants think that the court that convicted them did not take into consideration certain matters before convicting them, the only legal remedy is to appeal against the judgement," he said.
In the trial, Nana Ato Dadzie, Former Chief of Staff and Dr Samuel Dapaah, Former Chief Director of the Ministry of Food and Agriculture, were acquitted and discharged, while Mr Ato Ahwoi was earlier freed for lack of evidence.
The six were charged with conspiracy and causing financial loss of 20 million dollars to the State in a rice project at Aveyime in the Volta Region.
The Judge said the applicants were in detention because a competent court through a legally permissible procedure convicted and sentenced them in respect of a criminal offence clearly outlined in the Criminal Code of which they were charged.
In their statement of claim, the Defence Team argued that the incarceration of the applicants constituted a violation of their fundamental human rights.
It stated that the Trial Judge acted in contravention of the Constitution.
The Team said the offence for which the applicants were charged was not one of contempt. Therefore, it was mandatory that the strict requirement of Article 19 (11) be complied with. However, the Judge in the Quality Grain case did not do so, it argued.
The Lawyers said the Judge acted wholly outside his legal and constitutional authority and by so doing the fundamental human rights of the applicants, as provided under Article 19 (11 and 12), were breached.
The Defence said the Trial Judge, having substituted his own definition, which he sought from textbooks and dictionaries, proceeded to sentence their clients to various jail terms.
It contended that the purported conviction by Mr Justice Dixon Kwame Afreh, a Supreme Court Judge, who sat on the Quality Grain case as an additional High Court Judge, was a void act, which could not be a foundation for depriving the applicants of their constitutional rights.
Therefore, the Team argued, their detention under the circumstances was a denial of their personal liberty protected in Article 14 of the Constitution.
In an affidavit in support of their claim, Counsel prayed the court to grant them leave to issue a writ of habeas corpus to compel the Director of Prisons to produce the convicts in court and to explain why he is keeping them in detention.
They argued that Mr Justice Afreh in passing his sentence; resorted to the use of the Common Law sources, including the precedent in England, and definition in books and dictionaries to find the meaning of the words "Wilful" and "Financial Loss," which were used in section 179A (a) of Act 29.
"Though the charge sheet under which the convicts were charged referred to section 179 A (3) (a) of the Criminal Code, the actual terms of the charge did not even reflect the provision of the said section," it said.
The Defence Team was made up of Mr Tony Lithur for Simpa-Yankey, Mr Samuel Cudjoe and Mr David Kudzodzi for Adam and Peprah, respectively.
