COURT OF APPEAL, ACCRA
Date: 16 JUNE 1975
APALOO ARCHER AND FRANCOIS JJA
CASE REFERRED TO
R. v. Sussex Justices; Ex parte McCarthy [1924] 1 K.B. 256; 93 L.J.K.B. 129; 88 J.P. 3; 68 S.J. 253; 22 L.G.R. 46; 130 L.T. 510; 40 T.L.R.. 80; 27 Cox C.C. 590.
NATURE OF PROCEEDINGS
APPEAL against a conviction by a General Court Martial on the ground, inter alia, that the judge advocate infringed the Armed Forces Regulations, 1970, reg. 112.60 (2) by failing to withdraw when the tribunal closed to consider its finding. The facts are fully set out in the judgment.
COUNSEL
N. N. Heward-Mills for the appellant. Major A. Johnson for the respondent.
[p.146] of [1975] 2 GLR 145
JUDGMENT OF APALOO J.A.
Apaloo J.A. delivered the judgment of the court. Until December 1974, when he suffered the penalty which gave rise to this appeal, the appellant held the rank of major in the Ghana Armed Forces. It is unclear from the evidence what his precise military duties were. What seems clear, however, is that whatever duties the appellant performed, they did not include the purchase of what is now known as “foreign foods” for the army.
On 20 June 1974, a female petty trader called Ajoke and her daughter called on the appellant at his office. A man called Emma Fugar seems to have put them in touch with the appellant. The trader understood that the appellant was in possession of some goods which were being offered for sale at what was described as “pre-budget prices.” There was some controversy as to what exact understanding was reached between the trader and the appellant. It is however clear that before Ajoke left the appellant, she paid him 05,080.00 and it was agreed that she was to return the next day for the “goods.” Ajoke and her daughter returned the next day and met the appellant. They understood the appellant was running them to the Trade Fair Site to collect the goods.
Instead of the Trade Fair Site, the appellant drove them to the police station. They were not accused of any offence, but according to the appellant, they were to get official confirmation of what he had already told the police, namely, that the money had been stolen. The appellant made attempts to raise funds to repay Ajoke, but was unsuccessful.
It turned out, however, at any rate from the appellant’s own account of the matter, that not all the 05,080 was stolen. The appellant claimed he gave 01,500 to one Amugi who was to use this in procuring some of the required goods for the trader. According to the appellant, Amugi has disappeared since. As to who might have stolen the balance, the appellant had suspicions which were anything but consistent. The objects of his suspicion were various, namely, his batsman, girl friend, Amugi and finally, Emma Fugar. The police appeared to have made contact with some of these individuals but made no headway. Nobody was convicted, let alone charged with the theft of this money. Thus Ajoke neither received the goods nor got back her money.
The position which resulted from this was, that an officer of the Ghana Armed Forces whose duty did not include the purchase of foreign foods for the army, offered, or at any rate, agreed to reader this service to a civilian. He was paid a large amount of money for this purpose. He failed to procure the goods or give any acceptable explanation of the whereabouts of the money. There might well be some questions as to whether the appellant’s conduct transgressed any provisions of the Criminal Code, 1960 (Act 29). The army authorities however felt that the appellant’s conduct compromised military order and discipline. Accordingly, on 30 October 1974, the appellant was charged with this general military offence, that is, “Conduct to the prejudice of good order and discipline.” This charge was brought under section 54 (1) of the Armed Forces Act, 1962 (Act 105). The particulars of the offence were given as follows:
[p.147] of [1975] 2 GLR 145
“In that he at Burma Camp on or about 20 June 1974 collected 05,080 from a Madam Ayishetu Ajoke of Accra in payment of seized goods he had promised to sell her, failed to supply the goods or refund the amount collected to the said Madam Ayishetu Ajoke.”
The appellant was tried by a General Court Martial which sat at the Arakan Officers’ Mess, Accra, between 22 November and 6 December 1974. On the latter day, he was found guilty and was duly convicted. He was sentenced to be reduced from the rank of major to lieutenant and was also to refund that 05,080 to the complainant within six months from that date. This sentence was said to be subject to confirmation. It has since been confirmed by the Chief of Defence Staff.
The appellant invites us to say that the conviction was wrong and should be quashed and that the sentence of demotion should go with it. In all, seven grounds of appeal were filed. Six of the grounds made varying complaints of a procedural nature against the conduct of the trial. Except one to which we will refer in a moment, we found no substance in all the others. The only ground which sought to question the conviction on the merits, was formulated as follows: “That the conviction cannot be supported in view of the evidence adduced at the trial.” On this ground, it was submitted that the evidence of the complainant and her daughter should not have been believed as they told lies. In any case, it was said their evidence was in conflict with the testimony of Mr. Yebesi the police commissioner who also testified for the prosecution. We cannot accept this as a serious complaint. Whether the testimony of these witnesses ought to be believed or not was a matter for the tribunal of fact. There is nothing intrinsically improbable about the story they told. Aside of minor divergencies on matters of detail, their story was conceded by the appellant himself. He admitted the receipt of the money, the agreement to use that money in securing them designated goods, the disappearance of that money in circumstances which are, to put it mildly, suspicious, his inability to procure them the goods or to refund to them the money. Whether that conduct prejudiced good order and discipline, is a matter for the judgment of military men. The Armed Forces Regulations, 1970 (C.I. 12), enabled the tribunal which consisted wholly of army officers to apply their general military knowledge to the determination of this question. Regulation 103.47 (h) of the Armed Forces Regulations, 1970, put it as follows:
“When an accused is charged under section 54, the service tribunal may apply its military knowledge as to what good order and discipline require under the circumstances and so come to a conclusion whether the conduct, disorder, or neglect complained of was to the prejudice of both good order and discipline.”
We are satisfied that on the evidence, the court was entitled to reach the conclusion it reached and we reject as untenable, the complaint that the conviction was unsupportable by the evidence.
[p.148] of [1975] 2 GLR 145
That brings us to the only procedural complaint of substance, namely, that the judge advocate infringed the Armed Forces Regulations, 1970 (C.I. 12), when he did not withdraw and was in fact present when the tribunal closed to consider its conclusion. The presence of the judge advocate, at this time, was peremptorily forbidden by regulation 112.60(2) of the regulations in the following terms: “A judge advocate shall not be present during the time the court is closed to make its finding.”
It was complained by counsel for the appellant, that contrary to this prohibition, the judge advocate in this case was present when the court closed to make its finding. Accordingly, it was said this vitiated the proceedings and entitled the appellant to acquittal or at least to the vacation of the conviction and an order for retrial. After the conclusion of argument, counsel for the appellant, transmitted to us, in support of his contention, the case of R. v. Sussex Justices; Ex parte McCarthy (1924) 93 L.J.K.B. 129.
It was conceded for the State, we thought, very properly, that the judge advocate, Judge Essilfie-Bondzie, was in truth present when the court closed to make its finding and that there had been a breach of the regulation. But it was contended that this deviation from the statutory procedure did not invalidate the finding or sentence inasmuch as it did not occasion any injustice to the appellant. Reliance was placed on regulation 101.06 (1) of the Armed Forces Regulations which provides that:
“A finding made or a sentence passed by a service tribunal shall not be invalid by reason only of deviation from the procedure prescribed in AFR, unless it appears that injustice has been done to the accused by such deviation.”
The State says that apart from this regulation, its stand is also buttressed by section 91 of the Armed Forces Act, 1962 (Act 105), which enacts that:
“Notwithstanding anything in this Part, the Court-Martial Appeal Court may disallow an appeal if, in the opinion of the Court, to be expressed in writing, there has been no substantial miscarriage of justice.”
Thus, the only matter on which we have to reach a decision, is whether the presence of Judge Essilfie-Bondzie in the Arakan Officers’ Mess at the time the tribunal was considering its finding, occasioned injustice to the appellant. There was no suggestion, even faintly, that he took part in the deliberations which culminated in the tribunal’s finding or had any communication with it at the time. The case of R. v. Sussex Justices, to which the appellant referred us, is plainly distinguishable from the instant one. In that case, the clerk of the justices belonged to a firm of solicitors who acted for the proposed plaintiff in a claim for damages resulting from the accident for which the accused was prosecuted for
[p.149] of [1975] 2 GLR 145
dangerous driving. He retired with the justices to make himself available to give such advice as the justices may require. Although his advice was not sought, it was held by the Divisional Court that he was so connected with the civil matter that he could not give impartial advice in the criminal case. The conviction was accordingly quashed.
It cannot be said that the judge advocate in this case occupied a position analogous to the justices’ clerk in the Sussex Justices case. His duties in the trial were fully spelt out in regulation 112.53 of the Armed Forces Regulations. In the main, he was required “at all times to maintain an impartial position.” The summing-up notes show that he did his best to hold the scales evenly between the State and the appellant. He did nothing from which it can be said with reason that he took sides. There is no reason why he would wish for any particular result in this case.
We have looked at a large number of English decisions in which convictions were quashed either because unauthorised persons spoke to the jury when they were in retirement for the purpose of considering their verdict, or where communications took place between the judge and the jury while the latter were conferring. None of these cases is apposite to the present case.
The only fault that can be attributed to the judge advocate, is that he did not withdraw while the tribunal sat, in what appears to be an improvised court room for the purpose of considering its finding. It is not reasonable to hold that his mere presence would influence military men who were considering, what was essentially, a matter of military discipline.
While we think the procedural point was well taken and while we strongly deprecate the fact that the judge advocate should have infringed this clear procedural provision, we are satisfied that the breach occasioned no injustice to the appellant. We venture to hope that such an error will not be repeated. If it is, we might feel disposed to act differently than we do at present. Our conclusion is that no good ground exists for interfering with the conviction or sentence. We accordingly hold that this appeal fails and should be dismissed.
DECISION
Appeal dismissed.
L. F. A.
