DIAWUOH vs. THE REPUBLIC [2003]DLCA977

Date	2003-11-05
Suit No.
Citation No.	[2003]DLCA977

ANSAH JA

AKAMBA JA

ANIM JA

AKWASI OPOKU FOR THE APPELLANT.

LT COL ASANTE (WITH HIM CAPTAIN BEKOE) FOR THE RESPONDENT.

[2003]DLCA977
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">DIAWUOH<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">THE REPUBLIC<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>[2003-2005]
1 GLR 10<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 5 November 2003<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AKWASI
OPOKU 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">

LT
COL ASANTE (WITH HIM CAPTAIN BEKOE) FOR THE RESPONDENT. <o:p></o:p>

ANSAH,
AKAMBA AND ANIM JJA<o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Akamba JA <o:p></o:p>Delivered
the ruling at the invitation of Ansah JA. On 21 October 2003 an appeal from the
decision of the General Court Martial, Burma Camp was fixed before this court
in our regular criminal appeal sittings for hearing. We were served with the
record of proceedings and other attachments beforehand and having had the
opportunity to read same and to make references to the legislation relied upon,
there was some uncertainty about our competence as presently constituted to
deal with this appeal. This court accordingly posed the question for both
counsel to satisfy us as to our jurisdiction in hearing the appeal as a
preliminary point. In raising the point for argument, we are convinced that
jurisdiction is like the foundation of a building wherein if built on a rock
will stand firmly the test of time but if built on sand would be swept away by
any deluge.<o:p></o:p>We
must begin by expressing our great satisfaction for the assistance from both
counsel on the issue, which initially took them by surprise. However, by the close
of responses at the next adjourned date, it was obvious that both counsel had
quickly overcome the surprise element and gave us the results of their
far-reaching researches.<o:p></o:p>Now,
to the submissions of counsel. Mr Akwasi Opoku, for the appellant, submitted
that this court as presently constituted is competent to deal with the appeal.
First, he relied on section 11(1) of the Courts Act, 1993 (Act 459) to show
that the section grants jurisdiction to this court in matters listed therein.
These matters include appellate jurisdiction, which may be conferred on it by
the Constitution, 1992 or “any other law.” Counsel therefore submitted that the
expression “any other law” includes the Armed Forces Act, 1962 (Act 105) and
the Armed Forces (Court-Martial Appeal Court) Regulations, 1969 (LI 622) which
grant jurisdiction to this court in matters of appeal from court martials.
Counsel for the appellant urged that the reference in regulation 1 (1) of LI
622 to “the judges of the Supreme Courts of Judicature” should be construed as
a reference to “the judges of the superior courts of judicature” as this is
evident from a total reading of the instrument. Thus read, according to Mr
Opoku, it becomes obvious that every judge of the superior court of judicature
is automatically a member of the Court-Martial Appeal Court. The fact that
regulation 1(4) of LI 622 provides for the registrar of the Court of Appeal, ie
this court, to be the registrar of the Court-Martial Appeal Court, reasoned
counsel for the appellant, is suggestive that any three judges of the superior
court of judicature can sit on the Court-Martial Appeal Court.<o:p></o:p>Counsel
for the respondent, not surprisingly, submitted that this court as presently
constituted is not competent to deal with this appeal because it is not the
Court-Martial Appeal Court envisaged by LI 622. According to him, regulation
1(1) of LI 622 merely creates a general pool from which the Chief Justice may
draw or select members of the Court-Martial Appeal Court. Counsel for the
respondent next referred to section 2(1)(b) of LI 622 which stipulates that at
least one of the judges to be empanelled should be a judge of the Supreme Court
of judicature, as supportive of his point. So that until one is selected to be
a member of the Court-Martial Appeal Court, one cannot sit in that court. A
Court-Martial Appeal Court must be specifically empanelled by the Chief Justice
and the members summoned in accordance with directions given by the Chief
Justice. Short of this, contended counsel for the respondent, anything done
will be illegal, irregular and incompetent.<o:p></o</main>