SISMEN NIXON TETTEH vs. THE REPUBLIC [2002]DLSC2383

Date	2002-04-11
Suit No.	CA NO. 3/99
Citation No.	[2002]DLSC2383

AMPIAH J.S.C. (PRESIDING)

KPEGAH J.S.C

ACQUAH J.S.C.

ATUGUBA J.S.C

ADZOE J.S.C.

MR. KOKA FOR THE APPELLANT

GWUP CAPTAIN OBENG NTIM FOR THE RESPONDENT.

[2002]DLSC2383
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													<main id="main" class="content" style="min-height: 60rem" >SISMEN NIXON TETTEH<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CA
NO. 3/99<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">

11TH APRIL, 2002.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
KOKA FOR THE APPELLANT<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">

GWUP
CAPTAIN OBENG NTIM FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp; <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">

AMPIAH,
J.S.C. (PRESIDING), KPEGAH, J.S.C, ACQUAH, J.S.C., ATUGUBA, J.S.C., ADZOE, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>ADZOE,
J.S.C.:<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>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”.&nbsp;
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”.<o:p></o:p>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”.&nbsp; <o:p></o:p>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?<o:p></o:p>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:<o:p></o:p>(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.<o:p></o:p>(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.<o:p></o:p>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 cour</main>