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Hebeas Corpus-Rule Nisi Discharged-Appeal--Person Detained at Large.

An appeal does not lie in any case of proceedings for or upon a writ of Habeas Corpus when at the time of bringing the appeal the person alleged to have been detained is at large.

P. A. Renner for the Plaintiff-Appellant.

]. Henley CMlssey for the Defendant-Respondent. The foJ1owing judgments were delivered :-

TEW, c.J. SIERRA LEONE.

This is an appeal from a decision of the Chief Justice discharging a rule nisi obtained on behalf of one Kpakpa Dogah for the issue of a writ of Habeas Corpus directed to the Awoame Fia Togbi Sri II, President of the Highest Native Tribunal of Awuna and to the keeper of the Prison of the said Tribunal.

It appears that the applicant had in 1921 successfully sued one Fiagbenu Kwasinye before the Native Tribunal of Fia ASfen II of Mafi to recover posses<-iOT' of a piece of land. Kwasinye appea led to the Highest Native Tribunal of Awuna which reversed the judgment of the firs'. Tribunal. The Provincial Commissioner dismissed an appeal from this" latter decision, but the Fun Court set aside his judgment on the ground that the Native Tribunal of Awuna had not at all time~ during the hearing been properly constituted. Kwasinye then applied to the Awuna Tribunal to rehear his appeal from the Mafi Tribunal, and eventually that Tribunal gave judgment in his favour with costs taxed at £79 18~. 6d. Kpakpa Dogah appealed to the Provincial Commissioner, but failed to comply with the conditions imposed and his appeal was ~truck out.

On the 11th of February, 1930, the Awuna Tribunal issued a writ of ca. sa. to enforce payment of the costs, and this writ was executed on the 21st of November, 1930, when Kpakpa Dogah was arrested and imprisoned for thref mOflths.

The question which the learned Chief Justice had to decide when cause wa~ shown by the President of the Awuna Tribunal and the Keeper of the Prison was whether the Tribunal had jurisdiction to issue the ca. sa. He decided that they had jurisdiction.

When the appeal from this decision came before this Court Counsel for the respondent, who is the execution creditor, raised two preliminary objections. First he argued that the appeal was not properly before the Court.

The appellant had obtained conditional leave to appeal from this Court (being out of time for obtaining leave from the Court below) on condition (inter alia) that he should give notice to all parties directly affected by the appeal. He subsequently came before a single judge of this Court and was granted an extension of time for fulfilling the conditions. The present respondent (Charles M. Fiagbenu) had previously been substituted for Fiagbenu Kwasinye in circumstances which are not apparent from the record. The appellant gave notice to Charles Fiagbenu and obtained final leave to appeal from the same judge.

It is dear that the appellant did not in fact comply with the conditions imposed by this Court in that he neglected to give notice to the only two persons who were directly affected by the appeal, namely, the President of the Tribunal and the Keeper of the Prison. I t does not follow that his appeal must fail on that ground. To adopt the language of the Privy Council in Kojo Pon v. Atta Fua (P.C. 1874-1928) at page 98, to refuse to hear this appeal on the ground of a mere technicality would be to fail to do justice as between the parties The failure would be even more serious in a case of this kind where in ordinary circumstances the liberty of the Appellant would be at stake. But for a second and more vital objection to which I am about to refer, the proper course for this Court to adopt would be to give the appellant time to give notice to the proper parties and to adjourn the hearing of the appeal for that purpose.

The second point taken by the respondent was that the appellant being now at liberty, there is, so to speak, no virtue in this appeal. It is admitted that the appellant is no longer detained and it appears from an affidavit on the record that he was released after a month, presumably because he paid the amount of the costs. In these circumstances what effective order could this Court make, assuming that it considered that the learned Chief justice was wrong in refusing to issue the writ? The sole object of a writ of Habeas Corpus is to secure the release of a person who is unlawfully detained. Where an applicant is not detained, it obviously cannot issue, and it would be an absurdity to listen to arguments of a purely academic nature based on a state of things which does not in fact exist.

That an appeal of this kind could not lie where the appellant whose release ostensibly is sought is at liberty seems to me a self evident proposition which needs no authority to support it, and one would hardly except to find any. There is. however, a Circadian case Fraser v. Tupper, cited in the English and Empire Digest, Vol. 16, page 271, rote f., which is exactly in point and decides. to quote the language of the note, that " an appeal will not lie in any case of proceedings for or upon a writ of Habeas Corpus when at the time of bringing the appeal appellant is at large."