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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