REPUBLIC vs. MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH [1976]DLCA434

Date	1976-04-26
Suit No.
Citation No.	[1976]DLCA434

APALOO J.A

LASSEY J.A

ANIN J.A.

W. A. N. ADUMUA-BOSSMAN FOR THE APPELLANTS.

GYEKE-DAKO DIRECTOR OF PUBLIC PROSECUTIONS FOR THE RESPONDENT.

[1976]DLCA434
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 2 GLR 5<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
26 APRIL, 1976.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

W. A. N. ADUMUA-BOSSMAN FOR THE APPELLANTS.<o:p></o:p>

GYEKE-DAKO, DIRECTOR OF PUBLIC PROSECUTIONS, FOR
THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APALOO, LASSEY AND ANIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>He
delivered the judgment of the court. The appellants are two of nine persons
convicted by a military tribunal established under the Subversion Decree, 1972
(N.R.C.D. 90), on 13 November 1972, of three counts each of conspiracy to
commit subversion, subversion and concealment of subversion. They were each
sentenced in accordance with section 2 (a) of that Decree to suffer death “by
shooting by firing squad.” That sentence has since been commuted by executive clemency
to one of life imprisonment. It seems clear that the appellants were aggrieved
by their convictions and had it been possible for them to do so, would have
questioned them on appeal. But section 4 (7) of that Decree disables them from
so doing as it provides that the decision of the military tribunal “shall be
final and no appeal shall lie from such decision.”<o:p></o:p><o:p>&nbsp;</o:p>As the
Decree denied them a right of appeal, they resorted to the supervisory
jurisdiction of the High Court to question at least one of the counts on which
they were convicted, namely, conspiracy to commit subversion. The appellants’
basic position was that no such offence was created by the law under which they
were convicted, namely, N.R.C.D. 90 and accordingly, they invited the court to
quash their convictions on that count. They conceded, as indeed they could not
dispute, that the counts of subversion and concealment of subversion were
proper charges and were properly laid but they said by joining proper legal
charges to non-existent ones, a great deal of evidence which would otherwise
have been inadmissible, was let in and the misjoinder was such as to occasion
them a denial of natural justice.<o:p></o:p>The
appellants obtained leave of the High Court for the issue of an order of
certiorari to quash the convictions. When notice of this order was served on
the respondents, they sought to persuade the court that it had no jurisdiction
to entertain the application which sought to question the decision of a
military tribunal inasmuch as it was not an inferior court. The appellants
contended that it was and was as such, amenable to the supervisory jurisdiction
of the court and its orders, could, in appropriate cases, be vacated by the
writ of certiorari. This issue was the subject of preliminary argument before
Abban J. on 28 May 1973. On 13 June 1973, the court delivered a reasoned ruling
reported in [1973] 2 G.L.R. 227 in which it rejected the respondents’
preliminary objection and ruled that the court was clothed with jurisdiction to
entertain the application.<o:p></o:p><o:p>&nbsp;</o:p>The
respondents expressed themselves as aggrieved by the ruling and sought leave
orally to appeal against it. Such leave was granted. The respondents did not
however prosecute the appeal. On 20 July 1973, full argument was addressed to
the court by both parties on the main question whether or not conspiracy to
commit subversion was a valid or invalid charge and whether the military
tribunal had jurisdiction to try that charge. On the conclusion of argument,
the learned judge delivered an extempore ruling in which he found against the
appellants. He held that the charge of conspiracy to commit subversion was a
valid charge and that the “military tribunal could properly try the applicants
on the conspiracy charge.” He said he would give full reasons for his ruling at
a later date. He did this on 9 October 1973 (reported in [1973] 2 G.L.R. 445).<o:p></o:p><o:p>&nbsp;</o:p>The
appellants, for their part, were aggrieved by the ruling and on 23 July 1973,
filed an appeal to this court against the said ruling. They sought from this court
an order “to set aside the said ruling and instead issue an order of certiorari
to bring up and quash the convictions and sentences entered on 13 November 1972
. . .” There can be no question that at the date when the appeal was lodged,
the appellants were entitled to do so by virtue of section 10 (1) of the Courts
Act, 1971 (Act 372). By reason of rule 10 (3) of the Court of Appeal Rules,
1962 (L.I. 218), that appeal was deemed to be pending in this court from the
date the notice of appeal was brought, that is 23 July 1973.<o:p></o:p><o:p>&nbsp;</o:p>