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JUDGMENT
ADZOE, J.S.C.:
The complainant in this case was
an officer in the Ghana Armed
Forces. He was the Provost
Marshall. His duties touched on
security and discipline within
the armed Forces. The appellant
on the other hand was a
corporal. He had had 19 years
military service to his credit.
On the night of 19th November,
1996, the appellant was alleged
to have done something very
strange. The appellant who was
then living in barracks in the
Burma Camp in Accra had earlier
in the day left the barracks to
town. He spent much time in
town. At the time he was driving
back to the barracks at about
11.30 p.m. the Provost Marshall
was also driving into the Burma
Camp. According to the
prosecution the Provost Marshall
stopped at the Burma Camp
traffic light because the red
light was on, meaning all
vehicles must stop. But as he
waited, a car from behind drove
past him, ignoring the red
signal. When the green light
came on, the Provost Marshall
decided to find out the person
who drove through the red light.
He therefore followed the other
car and found it parked near a
house. The owner came out and
was about to enter his room when
the Provost Marshall walked up
to him and, recognizing the
appellant, the Provost Marshall
asked why he drove through the
red traffic light. The appellant
said the red light was not on.
The denial surprised the
complainant and he asked for the
appellant’s identity card.
According to the prosecution the
appellant produced the card; but
when he realized that the
complainant intended to keep the
card and also lodge a complaint
against him he decided to
collect back his card. During
the struggle he was alleged to
have hit the complainant in the
face with a blow. The
complainant fell down and the
appellant sat over him and
rained blows on him. Some people
who were around the scene went
to the rescue of the
complainant. When freed, the
complainant rushed to the
military police and reported the
incident. Men were sent to
arrest the appellant but the
appellant was combative and
engaged them in a fight. It took
a three-man reinforcement to
overpower the appellant and
confine him to cells. He was
later charged with the typically
military offences of (1)
striking a superior officer, (2)
use of violence against a
superior officer and (3) conduct
prejudicial to good order and
discipline. The appellant denied
the offences.
He defence was that he was
returning from town to the
barracks that night when he
realized that another car was
following him. When he was
checked at the traffic light and
allowed to go, he realized that
the car was still following him,
and when he stopped in front of
his room and was about to enter
the man caught up with him and
asked for his identity card. He
did not know who the man was. It
was dark and he could not
identify the man, not even by
his voice. He showed the card to
the man and the man pounced on
him and started struggling with
him to collect the card. In the
process the two of them fell
down. Then some neighbours came
and separated them. Later, some
military policemen came to
arrest him. He called two
witnesses including his wife who
can properly be described as an
eyewitness. The wife’s evidence
suggested that the struggle
between the two men began when
the complainant held the
appellant’s “trousers and held
the shirt at his chest”. She
said she shouted and one S/Sgt.
Otu came; but before Otu arrived
the appellant “was trying to
release himself from the grips
of the man and they all fell”.
S/Sgt Otu was the next witness.
He told the court that he was
asleep when he heard an unusual
noise and when he rushed out he
“saw two men holding each other.
I went there and separated
them”.
The court itself called one
witness who happened to be the
wife of the complainant. She was
in the car with the complainant
and could also be properly
described as an eyewitness. Her
evidence was that when she and
the complainant got to
appellant’s house the
complainant came out of the car
but she remained inside. The
appellant’s car had parked right
in front of the building.
According to her when
complainant got there, “a
gentleman came out from that car
so later on there was an
argument between the two (2) of
them. It turned to a struggle
and that was when I went to the
scene. When I got there the
Colonel and the gentleman were
on the floor. The people around
came to separate them which I
also took part”.
In ordinary legal terms the
offence of striking an officer
is the offence of assault. The
evidence of the appellant
suggested the defence of self
defence which the trial court
martial was bound to consider in
arriving at its decision. The
record shows that the trial
court apparently did not look at
the case of the appellant. I
will come back to that issue
soon. Meanwhile what is the
appellant’s case in this court?
He has argued two grounds of
appeal before us. He says that
the convictions in respect of
the three charges are wrong and
that the sentence of dismissal
is harsh and excessive. The two
grounds of appeal are that:
(1) The dismissal of the appeal
against all the counts was wrong
in law because the prosecution
failed to call material
witnesses and consequently
failed to establish a case
against the appellant.
(2) The dismissal of the appeal
cannot be supported in law
because the Court of Appeal
failed to evaluate and or
consider thoroughly the
appellant’s plea that the
sentence was harsh and
excessive.
Coming back to the judgment of
the Disciplinary Court-Martial.
I think it leaves much to be
desired. The offences charged,
having regard to the penalty
involved, were serious. The
court-martial itself remarked
that “The Court has realized
that the gravity of the offence
is very great”. In such a case,
and particularly because the
appellant denied the offences,
calling for a full trial, the
law requires that the decision
must take the form of a reasoned
judgment in which the court sets
out the reasons for the
conviction. Contrary to this
honoured principle of our
criminal jurisprudence the
judgment of the trial court was
a terse one sentence of
conviction. The record of
proceedings shows that the
President of the court read all
the three counts and said “The
court finds the accused guilty
on all the three counts”. That
was all. No conviction was even
recorded. The court simply
proceeded to call for the past
record of the appellant and when
it was furnished, the sentence
of dismissal was pronounced. Two
errors seem to have been
committed, namely, that there
was no reasoned judgment and
there was no conviction. The
Court of Appeal took no account
of the absence of the conviction
and as for the omission of a
reasoned judgment, the court
said it was not essential. In
the judgment of Justice S.G.
Baddoo in which the other two
Judges concurred, the Learned
Judge held that:
“An additional ground was filed
on behalf of the appellant that
the Court did not give reasons
for its decision contrary to
section 177(1) of Act 30. In
the case of WO1 Awudu Gamel v.
Republic 1/98 Criminal appeal
unreported, Afreh J.A. held
that: ‘Court-martial is like a
jury. If its conclusion can be
supported by evidence before it,
an appellate [SIC] court should
not normally disturb it’
I aree with the learned Judge
that if there is evidence to
support the decision, the
appellate court will not disturb
the judgment. In this case, it
is my considered opinion that
there is evidence to support the
decision of the disciplinary
court-martial. The appeal is
therefore dismissed on all
grounds”.
The point made by the court is
grave enough to merit scrutiny.
It is to be observed that three
propositions were advanced
before the Court of Appeal
namely that,
(1) The court martial ought to
have given a reasoned judgment
when it decided to convict the
appellant;
(2) A court martial is not
obliged to give a reasoned
judgment;
(3) The failure to give a
reasoned judgment is of no
consequence if an appellate
court finds that there is
sufficient evidence on the
record to justify the decision
of the trial court martial.
The judgment of the Court of
Appeal in effect rejected
proposition (1) and gave its
support to propositions (2) and
(3). I feel rather reluctant to
accept the proposition that a
court martial is not under a
duty to give a reasoned judgment
for the reason that its decision
is like the decision of a jury.
I think the equation is
misleading. In the first place,
it appears to me that a
court-martial is a peculiar
court which is sui generis and
basically not analogous to a
jury. The Disciplinary court
martial created under or Armed
Forces Act 1960, Act 105, sits
as a panel of judges and each
member is expected to make his
own decision. Section 70(1) of
the Act actually provides that
“A disciplinary court-martial
shall consist of not less than
three officers and not more than
such number of officers as may
be prescribed”. These members
are the judges of both fact and
law. Their decision will have
to be unanimous or by the
majority. The President of the
court takes an active part in
the decision-making process. A
trial by jury is a different
procedure. The jury are the
final arbiters who decide on the
verdict. The judge does not take
part in the decision of guilt or
innocence. His only duty is to
direct the jury and instruct
them on the principles of law
that will guide them in reaching
a decision on the guilt or
innocence of the accused. He
must include in his instructions
to the jury the elements of the
offence charged, the nature of
the evidence needed to establish
the offence and the burden on
the prosecution to prove its
case in order to secure a guilty
verdict. The difference here is
the non-participation of the
judge in the decision in a jury
trial. It is therefore not
appropriate to say that a
court-martial is like a jury. I
would rather liken the
court-martial to a panel of
judges hearing a case summarily.
The panel is both the judge and
the jury just like a single
judge hearing a case summarily.
In my opinion a court-martial
cannot be equated with a jury.
If a court-martial is not a
jury, must it then give reasons
for its decision? I think it
must. Every criminal trial must
be regulated by the procedure
laid down in the Criminal
Procedure Code subject to any
provisions to the contrary in
any other enactment. The code,
(act 30 of 1960) provides for
the procedure governing all
criminal trials. It provides in
section 1 that:
“All offences under the Criminal
Code and, subject to the
provisions of any enactment, all
other offences shall be enquired
into, tried and otherwise dealt
with according to this code”.
The language is clear. The Act
embraces all criminal offences.
A military service offence is
clearly within its ambit,
particularly as Act 105 itself
provides in section 75 that:
“Save as otherwise expressly
provided in this Act and any
regulation made thereunder, the
rules of evidence and the
procedure to be observed in
proceedings before a service
tribunal shall as far as is
practicable be the same as those
observed in proceedings before a
civil court”.
Section 98 of the Act defines a
“service tribunal” as “a
court-martial or a person
presiding at a summary trial”
and a “civil court” as “a court
of ordinary criminal
jurisdiction in Ghana and
includes a court of summary
jurisdiction”. These provisions
of both Act 30 and Act 105 leave
me in no doubt that a trial
before a court-martial must be
in accordance with the relevant
procedures under Act 30. To hold
otherwise would lead to a
manifest absurdity, for it would
mean that the law as to criminal
procedure would be different
depending on whether the trial
comes before a court martial or
before the ordinary criminal
courts of this country. Act 30
sets out two broad procedures –
summary trial and trial on
indictment. A summary trial is
held before a judge or panel of
judges sitting as the
adjudicating authority; in a
trial on indictment a judge sits
with a jury or with assessors.
The process before the trial
court-martial was a summary
trial. In that type of trial the
rule requires that the decision
to convict the accused must take
the form of a reasoned judgment.
The rule is in section 177(1) of
Act 30. It reads as follows:—
“The court, having heard what
each party has to say and the
witnesses and evidence so
adduced, shall consider and
determine the whole matter and
may either convict the accused
and pass sentence upon him
according to law or acquit him,
as the case may be, and the
court shall give its decision in
the form of an oral judgment and
shall record the decision
briefly together with reasons
for it, where necessary”.
What this means is that the
trial court must, at least,
resolve the facts in issue and
give reasons why it prefers the
prosecution’s case to that of
the accused. The reasons are
necessary unless it is clearly
obvious that guilt must be
inferred from the facts and
circumstances of the case. There
are several decisions in our
case law. I will start with the
case of C.O.P. v. Asamoah (1958)
2 WALR. 458. The then Court of
Appeal in construing section 173
of the Criminal Procedure Code,
cap 10 of 1951, which had an
identical provisions, held that:
“The proper interpretation to be
attached to section 173 of the
Criminal Procedure Code, C 10,
which speaks of the reasons for
a decision being recorded “where
necessary”, is that a record is
always necessary in the case of
a conviction unless the reason
for the conviction is clearly
obvious and beyond doubt from
the facts and circumstances of
the case”.
The court itself observed that
the language of section 173 of
the Procedure Code required a
magistrate to record reasons for
decisions only “where necessary”
but took the view that reasons
are necessary whenever “there is
a conviction unless the reason
is so clearly obvious and beyond
doubt that guilt can be inferred
from the facts and the
circumstances of the case “The
Learned Judges reasoned that “If
in any case the reason for a
decision is not so obvious to an
appellate court then the trial
court has erred in not recording
its reason. We should remember
that what may appear obvious to
a magistrate or a judge may not
appear to be so to the public.
Nobody likes a decision against
him, more especially in a
criminal matter, if it is given
summarily without a reason”.
The Courts have consistently
held that where a case is
contested because the accused
maintains that he is innocent
the court must give reasons for
convicting the accused. In
construing a similar provision
in section 300 of the old
Criminal Procedure Code, Cap.
10, which required the judge in
a trial with the aid of
assessors to give a reasoned
judgment, the Supreme Court said
that the rule is “well founded
in law on the principle that the
judicial process is well known
to be to resolve the facts in
issue and facts relevant to the
issue and then apply the law to
the facts found. If the question
“what are the facts found?”
cannot be answered with
precision and particularity, the
judgment ought to be held to be
unsatisfactory, because the
judicial process has not been
applied. A fortiori where the
judgment is non-existent, the
judicial process has been
manifestly ignored as in the
present case” See Mensah and
ankrah v. the State, (1961 GLR
64, at 67-68). The principle
has remained with us up to
today. Three recent cases
illustrate the point. In the
case of Afotey v. The Rep.
(1984-86) 1 GLR 475, in a trial
for assault the magistrate
convicted the appellant in a
judgment which read as follows:—
“Judgment: Prosecution has
proved its case beyond all
reasonable doubts against the
accused is convicted and
sentenced to a fine of ¢500.00
or six months’ imprisonment”.
The accused appealed against the
conviction and the High Court
allowed the appeal, holding that
the trial magistrate ought to
have given a more careful and
judicious appraisal of the
evidence than she appeared to
have done. Said the court:
“It is not being advocated that
she should have written a
literary essay or opinion in
arriving at her judgment, which
is not her duty; but she could
have made findings of fact (very
briefly) with brief reasons in
support of her verdict. The
magistrate court is a court of
summary jurisdiction. The
magistrate should adjudicate as
such, but where cases are
heavily contested (as in the
instant case), she must be seen
to have exercised her powers and
discretion judiciously. The
terseness of her judgment is
admired, only that, it fell
little short of what is expected
of her.”
See also Mainoo v. Rep
(1984-86)2 GLR 727, and Boakye
v. Rep Part 1 (1992-93) GLR
423. In view of the
authorities, I think the
judgment of the court-martial
was clearly defective.
Let me now turn to the grounds
of appeal argued by the
appellant’s counsel. Four
grounds were filed but he argued
only two, namely, grounds B and
E; he told the court he was
abandoning grounds A, C and D.
His contention in respect of
ground B is that the prosecution
failed to call material
witnesses and therefore failed
to establish a case against the
appellant. He argued that in the
face of such failure to call
material witnesses, it was wrong
for the Court of Appeal to
dismiss the appeal against
conviction. This argument will
be correct if indeed there were
material witnesses which the
prosecution did not call in
support of the case against the
appellant, for the law is
settled that the failure means
that the case against the
appellant was not proved beyond
reasonable doubt.
As a general rule the
prosecution has the discretion
to present such witnesses as it
elects to call in support of its
case. But the discretion must be
exercised in a manner that would
further the interests of justice
and ensure fairness to the
accused so that he does not
suffer any disadvantage. [vide,
r. v. Oliva (1965)3 All E.R
116]. The rule that the
prosecution must call material
witnesses becomes, therefore, an
important qualification on the
prosecution’s discretion.
Whether or not a witness is a
material witness depends on the
quality and content of the
evidence he is expected to offer
in relation to the case on
trial. He will be deemed to be
material if the evidence
expected from him is deemed to
be so vital as to be capable of
clearly resolving one way or the
other an important and decisive
issue of fact that is in
controversy. The evidence must
appear likely to have a profound
impact on the facts of the case
to the extent that if it is
accepted as true it will compel
the court to come to a
conclusion that is different
from the decision it has taken.
Thus, for example, in the case
of R. v. Adjenjinah and Anor.
(1942)8 WACA 193 a witness was
adjudged not to be a material
witness because the court was of
the view that whatever evidence
he would give could not have
changed the decision reached by
the trial court upon the
evidence on record. But in R.
v. Ansere (1958) 3 WALR 385,
where the evidence expected from
the witness was found to be
necessary to establish whether
or not the accused was the
person who took the monies he
was alleged to have stolen, the
court held that he was a
material witness because his
evidence would have made clear
the accused’s guilt or
innocence; and the prosecution’s
failure to call him meant that
they were unable to prove the
offence of stealing with which
he was charged.
It must also be noted that the
prosecutor has the right to
decide who his material
witnesses are. No law has as yet
taken away what Lord Thankerton
called “the long-established
right of the prosecutor to
exercise his discretion to
determine who the material
witnesses are”:— Adel Muhammed
El Dabbah v. A-G Palestine
[1944] 2 All E.R. 139 at page
144. In the appeal before us the
persons referred to by the
appellant as material witnesses
were the guardsmen on duty that
night near the traffic light at
the Burma Camp. Counsel has
argued that since the trouble
arose because of the alleged
crossing of the red light by the
appellant, the prosecution were
bound to call the guards, or at
least one of them, to
substantiate the allegation that
the appellant drove through the
traffic light when the red
lights were on. He says that
evidence would have gone to
demonstrate the credibility of
the Colonel who was the
complainant or would have gone
to demonstrate the credibility
of the appellant. In his view,
if the evidence of the guards
show that the appellant did not
drive through the red light it
would show that the Colonel was
not truthful ab initio and
therefore went to fabricate the
follow-up story that the
appellant assaulted him.
Accordingly, he submits that the
failure by the prosecution to
call those guardsmen meant that
the prosecution failed to prove
the case against the appellant
beyond reasonable doubt.
What is the prosecution’s case?
It is in the charges. It is that
(1) the appellant struck his
superior officer with a blow,
and (2) used violence against
the officer and (3) resisted
arrest and struggled with the
arresting officers, — all of
which amounted to conduct
prejudicial to good order and
discipline. The appellant was
not charged with a traffic
offence. But that was what the
guards allegedly witnessed and
could testify to; they knew
nothing about what took place in
the appellant house between the
appellant and the Colonel. The
evidence about what happened at
the traffic light has no
momentous relevance to the
offences charged, and to my mind
it would not have assisted the
trial court in any way in
determining the guilt or
innocence of the appellant on
the offences charged. The
guardsmen had nothing to
supplement the prosecution’s
case to enable the court make a
just and fair decision. In my
opinion the guardsmen were not
material witnesses and the
failure to call them did no harm
to the prosecution’s case. That
ground of appeal fails and is
accordingly dismissed.
The other ground of appeal
argued is that the sentence of
dismissal is harsh and
excessive. He contends that the
court-martial was wrong in
taking into consideration
“previous offences committed by
the accused in respect of which
he had already been penalized”.
He argued that:
“The court-martial erred in law
in considering previous offences
of the appellant to which he
admitted and was penalized and
same placed on his service
record, in passing sentence on
him. This accounts for the
harshness of the sentence
vis-à-vis the alleged offence
and circumstances surrounding
them”.
Counsel relied on the decision
of this court in the case of
Afari v. Commissioner of Police
(1963) 1 GLR 381.
This submission is clearly
misconceived. The decision in
the Afari case dealt with a
situation that was quite
different from the case now
before us. It related to
punishment in respect of other
charges pending against the
accused. The law which was
applied was section 162 of the
Criminal Procedure Code. It
reads:
“Where an accused person is
found guilty of an offence, the
court may, in passing sentence,
take into consideration any
other charge then pending
against the accused if the
accused admits the other charge
and desires it to be taken into
consideration and if the
prosecutor of the other charge
consents”.
This provision must be
distinguished from the provision
in section 300(1) of the same
Criminal Procedure Code
permitting the court, after
convicting the accused, to take
into account his previous record
of convictions and impose on him
an enhanced punishment. This
other section of the code reads:
“Where a person, having been
convicted of crime, is again
convicted of crime he shall be
liable to increased punishment
in the cases and manner provided
in the table annexed to this
section and the notes thereto
…..”
Counsel for the appellant should
have been familiar with the
procedure which is very much
applied in the courts. The view
has long been held that the
offender must be punished in a
manner that emphasizes society’s
determination to control crime
and deter potential offenders.
For the recidivist, the law has
always provided an enhanced
sentence. It is therefore common
practice for the court, after
convicting the accused, to hear
evidence of any previous
convictions against him. The
court is entitled to take that
information into consideration
in determining the appropriate
punishment to impose in the
circumstances of the particular
case before it. It is no wonder
then that Article 112.50(2) (b)
of the Armed Forces Regulations
(C.I. 12) also provides that the
court martial in determining the
severity of punishment shall
“impose a punishment
commensurate with the gravity of
the offence and the previous
character of the offender”.
Besides, the Rules of Procedure
(Armed) 1956 of the British Army
Act 1955, which is applicable to
the Ghana Armed Forces by virtue
of Article 112.04 of the Armed
Forces Regulations Vol. 11 (C.I.
12) also provides in section 7
1(b) that the court shall, in
their deliberation on the
sentence, take evidence
including the service record of
the accused which shall include
“Particulars of any offence of
which the accused has been found
guilty during his service and
which is recorded in the service
book relating to the accused and
of the length of time he has
been under arrest awaiting trial
or in confinement under a
current sentence”. All these
several provisions give the
court martial power to look at
the previous record of the
appellant when considering his
sentence. It is not open to
counsel to attack the court.
Since the appellant was a
serving soldier the court was
right in receiving a statement
of the appellant’s record from a
properly accredited officer,
“the Custodian of Service
Records”. See the English case
of R. v. Roche 30 Cr. App R.
29. But before considering the
plea to reduce the sentence it
would be necessary to determine
the fate of the conviction
itself. There will be no need to
consider the sentence if the
conviction cannot stand. And
that takes me back to the
judgment of the trial court
martial. I quote that judgment
again. It reads:
“The court finds the accused
person guilty on all the 3
counts”.
As I have pointed out already it
seems to me that this is no
judgment having regard to the
nature of the trial. The
authorities indicate that our
courts have long been legally
wedded to the principle that
where a trial court in a summary
trial convicts the accused but
makes no findings of fact and
fails to write a reasoned
judgment that failure on the
part of the court vitiates the
conviction, rendering it liable
to be quashed by an appellate
court. The courts have not, as
yet, seen any ground for divorce
from that principle. I always
remember Osei-Hwere, J’s words
that “Criminal convictions
cannot be founded on the mere
ipse dixit or a trial court”.
Comfort and anor. v Rep (1974)
2 GLR 1 at page 5. Such a
judgment is often declared a
nullity either because the trial
judge is said to have erred in
law: COP v. Asamoah (1958) 3
WALR 458; Comfort and anor. v
Rep (1974) 2 GLR 1; or the
judgment is said to be
unsatisfactory because the court
failed to discharge the judicial
process; R. Sarpong (1959) GLR
383; Comfort and anor. v Rep
(1974) 2 GLR; or that the
failure is fraught with the
danger of injustice: R v Adamu
(1960) GLR 91. The judicial
process mentioned in the cases
is the duty to resolve the facts
in issue and facts relevant to
the issue and apply the law to
the facts. The general trend
discernible from the cases is a
clear indication that our courts
invariably quash such
convictions and proceed to
acquit and discharge the
appellants. Even though an
appeal is often said to be by
way or re-hearing the courts
have not adopted the practice
of rehearing this type of
cases. The rationale behind this
attitude appears to me to be
this, that because the courts
treat the whole trial as a
nullity, they cannot in the same
vein look at the proceedings and
determine what should have been
the correct decision of the
trial court. In R v Addae (1959)
GLR the trial judge convicted
the appellant upon the opinion
of the assessors without writing
a judgment as required by the
Criminal Procedure Code. The
conviction was quashed on
appeal. Korsah CJ. delivering
the judgment of the Court of
Appeal said at page 366 and 367:
“In our view, there is evidence
on record upon which the Court
might reasonably have convicted
the appellant of the offence for
which he was arraigned before
it. We have, however, been
obliged to allow the appeal by
reason of errors which are
apparent on the record, and
which vitiate the conviction and
sentence imposed on the
appellant … It is clear … that
in a trial by a court with the
aid of assessors, where the
judge is required to pronounce
his verdict irrespective of what
the opinions of the assessors
may be, the judge must write a
judgment stating his reasons for
what conclusion he reaches upon
the evidence adduced before him.
The Court as in all such other
cases simply allowed the appeal,
set aside the conviction and
acquitted and discharged the
appellant. See also Bruce v
Attorney General (1967) GLR 170;
Afotey v Rep (1984-86) 1 GLR
475; Rep v Boakye (1992-93) Part
1 GBR 423; Mainoo v Rep
(1984-86) 2 GLR 727, where
Francois, JSC, sitting as an
additional High Court Judge,
allowed the appeal but ordered a
retrial. Of course the decision
to order a retrial where a trial
has been declared a nullity is
always a matter within the
discretion of the appellate
court having regard to the
nature and particular
circumstances of each particular
case and, above all, the need to
do justice. The case before us
falls within the class of
unsatisfactory trials which the
authorities have persistently
condemned and disapproved of. In
dealing with appeals of this
kind we must remind ourselves of
the functions of this court. We
sit merely as a court of appeal
and in that regard our first
duty is to find out if a
decision has been made by the
trial court; then we have to see
the evidence which supported the
finding made by the trial court;
next, if any question of law
arises, we have to see whether
or not the law has been properly
applied. So here, we have to see
whether there is a proper
judgment as required by our law.
In a recent decision by this
court in the case of Kwanteng
II v Klu (1993-94) 1GLR 280, at
284 Adade J.S.C put the matter
clearly thus:
“There is however, one aspect of
the matter on which I wish to
comment, that is the absence
from the record of appeal of the
reasoned opinion or judgment of
the trial judge. It is a serious
matter which should not be
glossed over lightly.
When the then Chief Justice’s
attention was drawn to this
defect whilst the case was
pending on appeal before the
Court of Appeal, he directed,
administratively, that the case
be sent back to the High Court
to be heard do novo. Admittedly,
the Chief Justice’s intentions
were admirable; unfortunately he
tripped on the law, as was
pointed out by Lamptey J.A. in
his ruling of 18th December 1987
in Klu v., Kwanteng[1989-90] 1
GLR 135.
But the impression must on no
account be created that because
an appeal by way of a rehearing,
the reasoned judgment of the
trial court is not necessary. In
my view, as a rule, that
judgment is a always to be seen
and read by the judge in the
record of appeal that: “Per
court: The plaintiff’s claim
[is] dismissed with costs of
¢750 inclusive of ¢500 for
counsel” cannot be a substitute
of the reasoned judgment of the
court. It is the reasoned
judgment which will indicate to
the appellate court where the
judge went right, or wrong, both
on the facts and on the law; and
whether the judge discharged the
judicial function imposed on
him, or whether he failed to do
so. That function has been
defined as finding the facts and
applying the law to the facts.
If this function cannot be said
to have been adequately
performed by the trial judge, an
appellate court will in all
probability send the case back
to the retried, notwithstanding
the fact that and appeal is by
way of rehearing”.
My conclusion is that our courts
have always frowned upon the
type of judgment given by the
court martial against the
appellant in this case, and in
my humble opinion it must be
given the same type of burial
which was solemnly given to its
predecessors. I will allow the
appeal for the reason that the
court martial did not give any
judgment. The conviction is
accordingly quashed and the
appellant acquitted and
discharged.
T. K. ADZOE
JUSTICE OF THE SUPREME COURT
AMPIAH, J.S.C.:
I agree.
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I agree.
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
ACQUAH, J.S.C.:
I agree.
G. K. ACQUAH
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C.:
I have had the advantage of
reading before hand the well
researched and well reasoned
judgment of my brother Adzoe,
J.S.C. and have been greatly
assisted by it.
However, I have, after the most
anxious consideration and
reflection, been able to agree
that the appeal in this case
should be allowed; but on
slightly different grounds.
This appeal turns on the proper
effect of section 177(1) of the
Criminal Procedure Code, 1960
(Act 30) upon a trial held under
that Code.
My brother Adzoe has assembled
almost all the authorities that
touch and concern the
interpretation of that section.
Since he has fully set out that
section I need not repeat its
provisions here.
The authorities set out by my
brother Adzoe, J.S.C. have held
that it is imperative to give
reasons for a judgment as
required by the said section
177(1) of Act 30, which is
mandatory, unless the reasons
for a conviction are clearly
obvious and beyond doubt from
the facts and circumstances of
the case; and where this is not
done the conviction cannot
stand. In such a case, almost
invarably the appellant is
acquitted and discharged.
Most of the said authorities,
however, related to trial with
assessors where failure by the
trial judge to write a reasoned
judgment, where he agrees with
the assessors; might involve
abandoning his jurisdiction to
the assessors. The rest were
determined solely upon the
construction of statutory
provisions similar to those
contained in section 177(1) of
Act 30 without regard to
provisions of the nature and
type contained in sections 406
of Act 30 and 31 of the Courts
Act, 1993, (Act 459).
Section 406 of Act 30 provides,
as far as relevant, as
follows:—
“406(1) Subject to the
provisions hereinafter
contained, no finding, sentence,
or order passed by a Court of
competent jurisdiction shall be
reversed or altered on appeal or
review on account—
(a) of any error, omission, or
irregularity in the complaint,
summons, warrant, charge,
proclamation, order, judgment,
or other proceedings before or
during the trial or in any
enquiry or other proceedings
under this Code; …
unless such error, omission,
irregularity, or misdirection
has in fact occasioned a
substantial miscarriage of
justice”.
Section 31(1) of the Courts Act,
1993 (Act 459) similarly
provides as follows:—
31(1) subject to subsection (2)
of this section an appellate
court on hearing any appeal
before it in a criminal case
shall allow the appeal if it
considers that the verdict or
conviction or acquittal ought to
be set aside on the ground that
it is unreasonable or cannot be
supported having regard to the
evidence or that the judgment in
question ought to be set aside
on the ground of a wrong
decision of any question of law
or fact or that on any ground
there was a miscarriage of
justice and in any other case
shall dismiss the appeal.
(2) The court shall dismiss the
appeal if it considers that no
substantial miscarriage of
justice has actually occurred or
that the point raised in the
appeal consists of a
technicality or procedural error
or a defect in the charge or
indictment but that there is
evidence to support the offence
alleged in the statement of
offence in the charge or
indictment or any other offence
of which the accused could have
been convicted upon that charge
or indictment”.
It is clear therefore that
section 177(1) of Act 30 ought
not to be construed or given
effect independently of these
provisions. In so far as some of
the authorities relied on by
brother Adzoe, J.S.C. were
subject to statutory provisions
similar to those under sections
406 of Act 30 and 31 of Act 459,
at the time they were decided, I
would hold them to have been
decided per incuriam of those
provisions. Section 177(1) is
clearly subject to the
provisions of sections 406 of
Act 30 and 31 of Act 459.
The effect of those saving
provisions has been judicially
determined in Ghana and in
England, under similar
provisions. The construction
placed on them is that if the
jury (or court), properly
directed, would have inevitably
or without doubt convicted the
accused, then the proviso to
those provisions would validate
the conviction and an appeal
therefrom would be dismissed.
See EGBETOWORPKOR V. THE
REPUBLIC, (1975) 1 GLR 485 C.A.
,
BONSU V. THE REPUBLIC, 2000
SCGLR 112 S.C., MYERS V.
DIRECTOR OF PUBLIC PROSECUTIONS
(1965) A.C 1001 H.L.
I would therefore hold that an
omission to write a reasoned
judgment under section 177(1) of
Act 30 is not fatal, not only
when the reason for the decision
(whether acquittal or
conviction) is clearly obvious
and beyond doubt but also where
the decision or judgment
appealed from is supported by
evidence of such a nature that,
if the trial court, had directed
itself properly on the
provisions of section 177(1) of
Act 30, by writing a reasoned
judgment; it would have
inevitably or without doubt have
convicted the appellant.
In my view, the failure to make
findings of fact and write a
reasoned judgment under section
177(1) of Act 30 does not render
the proceedings a nullity as
held, with the greatest respect,
in MAINOO V. THE REPUBLIC (1984
– 86) 2 GLR 727. It is
difficult to see how the failure
to write a reasoned judgment,
where necessary, should infect a
proper charge sheet, properly
admitted evidence, etc; all with
a nullity. In my view such a
judgment is only unsatisfactory
and, inter alia, an appellate
court is entitled to make up its
own mind on the facts and come
to a conclusion of its own, see
ASARE V. DONKOR (1962) GLR 176
S.C., BRUCE V. ATTORNEY –GENERAL
(1967) GLR 170 at 187 and ASANTE
V. BOGYABI (1966) GLR 232, S.C.
It is interesting that these
latter two authorities were
relied on in MAINOO V. THE
REPUBLIC, supra.
As regards the failure to
convict before passing a
sentence, I would hoId that such
an omission is a mere curable
technicality, where an intent to
convict for the charge or
charges is clear on the record,
see KINI V. THE REPUBLIC (1980)
GLR 627 and ADAM V. THE REPUBLIC
(1992) 2 GLR 150.
I must confess that at first I
took the view that if the trial
court martial had written a
reasoned judgment (i.e. directed
itself properly), it would have
inevitably or without doubt, as
a reasonable jury (for that is
what a court sitting alone, also
is), convicted the appellant.
On reflection however I think a
fair view of the matter is that
though the evidence against the
appellant was strong, it did not
have that effect.
In such a case the proviso is
inapplicable, see C.O.P. V.
OWUSU (1958) 3 W.A.L.R. 364.
For these reasons I would also
allow the appeal.
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Koka for the Appellant
Gwup Captain Obeng Ntim for the
Respondent.
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