NYARKO vs. REPUBLIC [1992]DLCA5049

Date	1992-07-09
Suit No.	[1992 – 1993] 4 G B R 1545 - 1552C.A
Citation No.	[1992]DLCA5049

ESSIEM JA

ADJABENG JA

LUTTERODT JA

DE PAUL FOR THE APPELLANT.

LT COL ALLOTEY FOR THE RESPONDENT.

[1992]DLCA5049
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													<main id="main" class="content" style="min-height: 60rem" >NYARKO<o:p></o:p>vs.<o:p></o:p>REPUBLIC<o:p></o:p>[COURT
OF APPEAL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1992 – 1993] 4 G B R 1545 -
1552C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 9 JULY 1992<o:p></o:p>

LT
COL ALLOTEY 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 1.0pt 0in">

ESSIEM
JA, ADJABENG JA, LUTTERODT JA<o:p></o:p>

</div>LUTTERODT JA. <o:p></o:p>On
9 July 1992 this court allowed the appeal and reserved reasons which I now
proceed to give.<o:p></o:p>The
appellant was a Lieutenant attached to the Army Health Department of the
Military hospital, Accra, the unit which is said to be popularly known as the
“Hygiene Wing.” Travelers from Ghana to other countries and who need to be
immunised against certain endemic diseases, like yellow fever, typhoid, cholera
and the like receive, both their inoculations and their certificates from this
Department.<o:p></o:p>In
the early part of January 1989, it was discovered that false inoculation
certificates were being unlawfully issued to travelers. On 30 February 1989,
the accused was found in a toilet in this Department allegedly stamping
inoculation certificates with two forged stamps. He was however not arrested on
the spot but he is alleged to have confessed later before his superior officer.
He was therefore arraigned before a General Court Martial, charged with three
offences. On 13 May 1991, he was convicted of only one of those offences, the
offence of scandalous behaviour contrary to section 32(1) of the Armed Forces
Act 1962 (Act 105) and sentenced to dismissal from the Armed Forces. When these
findings and orders made against him were confirmed and approved by the
relevant authorities within the Ghana Armed Forces, the appellant appealed to
this court on a number of grounds. These are contained in the application for
leave to appeal, additional grounds of appeal filed on 17 October 1991, further
additional grounds of appeal of 12 February 1992 and yet additional grounds of
appeal dated 1 April 1992.<o:p></o:p>The
first ground of appeal urged upon us is dated 1 April 1992. By it, it was
contended that while the appellant was restricted following his appearance
before his superior officer on the day of the incident ie 10 February 1989 and,
contrary to the Provisional National Defence Council (Establishment)
Proclamation (Supplementary and Consequential Provisions) 1982 (PNDCL 42)
section 66 and the Provisional National Defence Council (Establishment)
Proclamation 1981 section 4(2) and the 1979 Constitution, he was not informed
of his right to consult counsel of his choice. The argument of his counsel is
that at the time he was being interrogated, his captors, including his superior
officer, were under a duty to inform him of his constitutional right. The
contention here is that because of such failure, or violation of this
constitutional right, the oral statements made by him allegedly admitting the
offence was clearly inadmissible. More importantly, it was contended on his
behalf that since the learned Judge Advocate failed in her summing up to warn
the Court Martial that the said oral confession was clearly inadmissible no
conviction could be based on it; that she erred gravely by the omission; also
that the error occasioned substantial miscarriage of justice in that the
appellant had been wrongly convicted on inadmissible evidence.<o:p></o:p>It
was however submitted on behalf of the respondent that no constitutional right
of the appellant was infringed. Why? One of the forms that had to be filled in
at the trial is what has been described as Army Form A9 titled “Record of
Proceedings of a Court Martial.” It contains such information as who
constitutes the court, the name of the Judge Advocate and other matters
relevant to the trial. Also it contains a number of questions addressed to the
appellant, which he is expected to answer. One of them reads as follows:<o:p></o:p>“Q Do you wish to apply for an
adjournment on the ground that any of the rules relating to procedure before
trial have not been complied with, and that you have been prejudiced thereby or
on the ground that you have not had sufficient opportunity for preparing your
defence?“<o:p></o:p>The
thrust of the argument of the respondent’s counsel is that in so far as the
appellant answered in the negative, none of his constitutional rights had been
violated. In other words, had there been any violation of any of his
fundamental rights, he would have said so at the earliest opportunity.<o:p></o:p>I
am of the view however that this argument is untenable. We would clearly see
that the questionnaire speaks of “rules relating to procedure before trial” and
“insufficient opportunity for preparing the defence.” I would think by these procedures
are meant those formal procedural steps that must be taken before the actual
trial commences, in other words, those preliminary steps which set the actual
trial in motion. I do not think they refer to the basic and fundamental
constitutional rights crucial to the individual’s liberties - those rights
which have been aptly described in Ohene v Republic [1974] 2 GLR 272, Republic
v Akosah [1975] 2 GLR 406 as rules of law.<o:p></o:p>I
think those rules of law are completely different and distinct from the rules
“relating to procedure” described in the questionnaire. While I may say that
possibly the argument raised by the respondents’ counsel may be valid where the
complaint is that such a rule of procedure ie any of those preparatory steps
has not been complied with, I do not think the same argument can be put up
where the allegation is that a fundamental human right of an accused has been
violated.<o:p></o:p>But
then the more important reason why I think that the principle of law
established in both Ohene and Akosah is no longer good law is this: In 1975 the
Criminal Procedure (Amendment) Decree 1975 (SMCD 3) was passed. It provided
that:<o:p></o:p>“(1) Notwithstanding any enactment to
the contrary, in any proceedings commenced after the first day of August, 1969,
no statement shall be inadmissible by reason only of the fact that the person
making such a statement had not been informed of his right to consult counsel
of his own choice prior to the making of such statement.”<o:p></o:p>I
think this clear provision of the law makes it impossible for any statement
obtained in flagrant disregard of the </main>