ABDULAI vs. THE REPUBLIC [1997-1998] 2 GLR 450

CASES REFERRED TO

(1) R v Davies, R v Hamilton [1980] Crim LR 582.

(2) Hanson v The Republic [1978] 1 GLR 477.

APPEAL by the appellant against his conviction and sentence by the disciplinary court martial of the Armed Forces on charge of an act to the prejudice of good order and discipline, contrary to section 54 (1) of the Armed Forces Act, 1962 (Act 105). The facts are sufficiently set out in the judgment of Baddoo JA.

I de Paul for the appellant.

Lt Col Dosoo (with him Capt Okine) for the respondent.

Baddoo JA. Gamel Awudu Abdulai, warrant officer class one (WOl), No 173342 of the Sixth Battalion of Infantry, Kamina Barracks, Tamale, was convicted by the disciplinary court martial of the Ghana Armed Forces on 27 January 1998. The charge against him was, conduct to the prejudice of good order and discipline, contrary to section 54 (1) of the Armed Forces Act, 1962 (Act 105). He was sentenced to a reduction in rank, from warrant officer class one to staff sergeant. He has appealed against his conviction and sentence.

The grounds of appeal filed on behalf of the appellant were:

“(a) That the judgment is unreasonable and cannot be sup ported having regard to the evidence at the trial.

(b) The judgment is wrong in law or without legal basis.

(c) The judgment is based on morals only.

(d) The defence was not given due consideration at all.”

The appellant filed additional grounds of appeal and was given leave to argue those first. It was submitted for the appellant that the charge was defective in that it did not give sufficient

[p.452] of [1997-1998] 2 GLR 450 information about what the appellant had done. It was also submitted that it must be proved that the act complained of, that is the sexual intercourse with the daughter of a subordinate, was prejudicial to discipline in the Armed Forces.

Counsel for the appellant further submitted that the first prosecution witness, the young woman, was 24 years old and could make decisions of her own; that she williingly entered into a relationship with the appellant and that since there was an element of consent, the charge against the appellant was clearly miscon ceived. Counsel finally submitted that the sentence was too harsh and should be reviewed.

For the Republic, it was submitted that the matter was entirely within the discretion of the service tribunal to determine which act was prejudicial to discipline in the Armed Forces, and that since the appellant himself had admitted that his conduct betrayed the trust reposed in him by his subordinate, it must be obvious thati such a conduct would undermine discipline in the Armed Forces.

The appellant in this case is a warrant officer class one who was transferred from Kumasi to the Sixth Battalion of Infantry, Kamina Barracks at Tamale. He came without a wife or children., He lived on the same block of quarters with Staff Sergeant Abban, the complainant, who had a wife and five children the eldest of whom is called Linda, aged 24 years. Because the appellant lived alone, the children of Staff Sergeant Abban performed household chores for him. Linda especially cooked for the appellant. On one occasion the appellant tried to fondle Linda and this was reported to the mother, whereupon Linda was requested to stop cooking for the appellant. Notwithstanding this incident, the relationship bet ween the appellant and the family of Staff Sergeant Abban was very cordial. So much so that the appellant permitted the children, including Linda, to watch television in his room. He also allowed Linda to keep her bed and mattresss in his spare room.

On 5 January 1997, the appellant sent Linda to call his batman for him. When she came back from the errand, he grabbed her and had sexual intercourse with her. It was on a Sunday morning. Linda left the appellant and went to church that morning, without telling anyone about the incident. But four days later, she went to the hospital because she started having pains in the lower abdomen. She then informed her mother about the incident. She in

[p.453] of [1997-1998] 2 GLR 450 turn reported the matter to her husband who finally made a formal report to the authorities.

Since the facts in this case are not in dispute, the most important issue for determination is whether or not the act complained is prejudicial to good order and discipline in the Armed Forces. But before tackling this issue, I shall deal with the earlier submission of counsel that the charge was defective.

The particulars of offence, required under the Criminal Procedure Code, 1960 (Act 30), must be such as may be necessary to give reasonable information of the nature of the charge being brought against the accused person. Section 112 of Act 30, as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), s1i, provides as follows:

“(1) Subject to the special rules as to indictments herein after mentioned, every charge, complaint, summons, warrant or other documents laid, issued, or made for the purpose of or in connection with any proceedings before any Court for an offence, shall be sufficient if it contains a statement of the offence with which the accused person is charged, together with such particulars as may be necessary for giving reason able information as to the nature of the charge and not withstanding any rule of law to the contrary it shall not be necessary for it to contain any further particulars than the said particulars.

(4) After the statement of offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.”

An examination of the charge sheet in this case reveals that there was a statement of offence and a particulars of offence, which complied with the requirements of section 112 of Act 30.

The statement of offence was laid as conduct to the prejudice of good order and discipline, contrary to section 54 (1) of the Armed Forces, 1962 (Act 105). The particulars of offence were that the appellant had sexual intercourse with Linda Abban, the daughter of a subordinate staff sergeant. I hold that the charge sheet was not in any way defective, but that it gave reasonable information as to the nature of the offence committed, to the appellant.

The central issue as I have said earlier on, is whether or not the act complained of is prejudicial to good order and discipline in the Armed Forces. Whether or not a conduct is prejudicial to good

[p.454] of [1997-1998] 2 GLR 450 order and discipline is a question of law; but whether or not in the circumstances of the case the conduct was indeed prejudicial, is always a question of fact. But whatever it is, the conduct must be blameworthy and if it is a misbehaviour which occurred outside the service or had nothing to do with the Armed Forces, then the conduct complained of must be one which was likely to have effect on the discipline of other members of the Armed Forces: see R v Davies, R v Hamilton [1980] Crim LR 582. Thus improper borrowing from subordinates has been held to be conduct prejudicial to good order and discipline. Also improper use of service vehicle has been held to be conduct prejudicial to good order and discipline. See Halsbury’ ‘s Laws of England (4th ed) Vol 41, para 430.

Now, applying the law to the facts, canp it be said that the conduct of the appellant in having sexual intercourse with the daughter of a subordinate officer was prejudicial to good order and discipline? If improper borrowing from subordinates and improper use of service vehicle do constitute conduct prejudicial to good order and discipline, then a fortiori having sexual intercourse with the daughter of a subordinate officer would more than constitute conduct prejudicalprejudicial to good order and discipline.

Why would improper borrowing from a subordinate constitute conduct prejudicial to discipline? Why would improper use of service vehicle also constitute conduct prejudicial to discipline? On a personal level, a person who borrows is always obliged and indebted to the lender. Thus the officer who borrows from his subordinate is obliged and indebted to him. It is easy to see how this will undermine discipline in the Armed Forces, for the person who has to enforce discipline will have his arms tied behind him, because he is indebted to the subordinate. Shakespeare in Hamleti (Act 1 Scene III) advised us against borrowing when Polinius warned his daughter Ophelia in these words: “Neither a borrower nor a lender be; For loan oft loses both itself and friend; And borrowing dulls the edge of husbandry.” Then Proverbs, chapter 22, verse 7 in the Holy Bible gives this warning: “The rich ruleth over the poor, And the borrower is servant to the lender.”

It is no speculation to say that discipline is the bedrock on which the Armed Forces is built. Thus any act or conduct which is likely to weaken or affect discipline, is vigorously resisted as can be seen in the decided cases. It is within this context that improper borrowing and impnropner use of service vehicle are considered

[p.455] of [1997-1998] 2 GLR 450 conducts prejudicial to good order and discipline. From this premise, it will be reasonable to conclude that having sexual intercourse with the daughter of a subordinate is a conduct which could threaten the discipline and good order in the Armed Forces. It is my considered opinion that the facts as they stand are sufficient to sustain the charge brought against the appellant. The conviction should therefore not be disturbed.

On the sentence being harsh and excessive, I think there were factors and circumstances which must go to mitigate the sentence. On the evidence before the court, it was clear that the young woman was permitted to be in close relationship with the appel lant. She cooked for the appellant; she watched television in his house and kept her bed and mattress in his spare room. She was therefore in and out of the appellant’s house every day and every night, as she collected her beddings and as she returned them.

The appellant is not cast in the mould of the Patriarch Joseph, who was able to resist the amorous advances of Potiphar’s wife and fled, leaving his cloak in her hands. The appellant did not flee but succumbed to the charms of the young woman. I consider these as contributing factors, which must mitigate the sentence.

For this reason, I shall set aside the sentence imposed and subtitutesubstitute the following: The appellant shall be reduced from warrant officer class one to warrant officer class two.

Afreh JA. This is an appeal against conviction by a court martial sitting at the Headquarters, Second Battalion of Infantry, Kamina Barracks on 27 January 1998. The charge of which appellant was convicted was:

“Conduct to the prejudice of good order and discipline, contrary to section 54 (1) of the Armed Forces Act, 1962 (Act 105). In that he, 173342 WO0Il Gamel Abdulai Awudu, at Kamina Barracks on 5 January 1997 had sexual intercourse with Linda Abban the daughter of a subordinate 170450 S/Sgt Abban David whom he is not married to.”

This statement and particulars of offence against the accused sum up all the main facts of the case.

The appellant and the father of Linda Abban, Staff Sergeant (now Warrant Officer Class Two) David Abban, shared a block of flats at Kamina Barracks at Tamale. The appellant was senior to WOIIl Abban. He lived alone, while WOIIl Abban lived there with

[p.456] of [1997-1998] 2 GLR 450 his wife and their five children including Linda who was the eldest child. Relations between the appellant and the Abbans were cordial and the Abban children carried out various chores and errands for the appellant. For the three years they lived together with the appellant in the block, Linda cooked for the appellant, sometimes went to his flat to watch television and even kept her mattress in the appellant’s spare room. The Abbans accorded to the appellant the respect that a superior officer deserved and it seems he did nothing to forfeit this respect until the fateful day of 5 January 1997 when, a few hours before he left Tamale, he succumbed to temptation and had sexual intercourse with Linda.

Linda at that time was a full adult woman, 24 years old, and working at the Electoral Commission at Tamale after a course at the Tamale Polytechnic. Though she was still unmarried, she was clearly old enough to marry or to consent or refuse to have an affair or sexual intercourse with a man. The trial court martial declined to make any finding as to whether or not the intercourse between her and the appellant was with her consent, contenting itself with the statement that “Whether she consented to having sexual intercourse with the accused on that 5 January 97 can only be known to both the first prosecution witness and the accused. What both agreed with is that the intercourse did take place.”

The question is whether the appellant’s conduct in having sexual intercourse with Linda, a daughter of a subordinate, amounted to “conduct to the prejudice of good order and discipline.” Giving reasons for its decision that it did, the court martial said:

“Now does the conduct of the accused breach any good order and discipline? The first and second prosecution witnesses, that is the mother and father of Linda, did not show anger at what the accused did; that is, having sexual intercourse with their daughter but expressed shock and surprise. The third prosecution witness put it bluntly—“–”I lost courage and trust in him as my superior.” This assertion is not only dangerous but prejudicial to discipline which by extension is prejudicial to good order. (Note c to Art 103. 47 of AFR Vol 2). No evidence was produced before this court to suggest that the accused and the first prosecution witness were lovers. The second prosecution witness stated that it was possible the accused could marry the first prosecution witness if it was done properly. ‘Properly’, to this court, means acceptable

[p.457] of [1997-1998] 2 GLR 450

Ghanaian norms of courtship which the accused who is married cannot claim he does not know. The court contends that service personnel are accountable for the conduct of their children living with them in the barracks as far as the code of service discipline is concerned, whether they are above eighteen years or not. The court considers the conduct of the accused not consistent with his rank and experience.

The court wonders what effect this type of conduct will have on any reasonable soldier. The cumulative effect of this type of behaviour will have on the service cannot be considered a catalyst to good order and discipline. Having sexual intercourse with a subordinate’s daughter in the manner the accused approached it, with or without her consent, can erode discipline and should not be encouraged, else the service will degenerate into lawlessness. The court therefore finds the accused 173342 WOIl Awudu Gakel Abdulai guilty of the offence charged.”

It is against this judgment that the appellant has appealed. The original grounds of appeal are:

“(a) That the judgment is unreasonable and cannot be sup ported having regard to the evidence at the trial.

(b) Judgment is wrong in law and without a legal basis.

(c) Judgment is based on morals only.

(d) Defence case was not given due consideration at all.”

Counsel for appellant was also given leave to argue the following additional grounds: “That the charge is defective, in that the particulars did not give reasonable information as to nature of the charge under the Armed Forces Act, 1962 (Act 105), s 54 (1) as explained under the AFR (CI 12), art 103. 47 Note (c).”

Counsel argued that the gist of section 54 (1) of Act 105 is that the act of the accused person must be prejudicial to discipline. Therefore the particulars should have alleged what was prejudicial to discipline. It was even suggested, but not pressed, that section 54 (1) of Act 105 may not be in conformity with the constitutional requirement that an accused person should be given adequate information as to the nature of the offence charged against him

[p.458] of [1997-1998] 2 GLR 450 because section 54 (1) is too vague. Section 54 (1) of Act 105 provides: “Any act, conduct, disorder or neglect to the prejudice of good order and discipline shall be an offence . . .”

In my opinion, this provision is not vague, especially if it is read with the notes that accompany it. The words “act, conduct, disorder, neglect” are words in every day use and are easily understood. The draftsman could not be expected to list all acts etc that may prejudice good order and discipline. In my opinion, what is essential is that the accused is informed in clear language, and in detail, the nature of offence charged against him. In the instant case, the appellant was informed in clear language that he was being tried for conduct to the prejudice of good order and discipline by having sex with the daughter of a subordinate. I would dismiss this ground of appeal.

Ground (b) of the original grounds of appeal–—that the judgment is wrong in law and without legal basis—–deserves a more serious consideration. It raises the question of interpretation of the phrase “prejudice to good order and discipline.” What does it mean? It is not defined but explained in the notes in the Armed Forces Regulations (C I1 12), art 103.47. Note (a) to article 103.47 states: “A service tribunal would not be warranted in convicting an accused of this offence unless of the opinion that the conduct, etc; proved was to the prejudice of both good order and discipline, having regard to its nature and circumstances in which it took place.”

So in the instant case it was not enough to prove that the appellant had sexual intercourse with a subordinate’s daughter. It was also in my opinion necessary to prove that the act or conduct prejudiced good order and discipline in the sense that it injured or damaged the good order and discipline of the army or was capable of doing so, at least the unit they belonged to. The reaction of one individual, such as the person affected by the act, conduct, dis order or neglect, alone is not enough.

Note (c) to article 103.47 of CI 12 which was referred to in the judgment of the court martial describes or explains what must be proved by the prosecution. It states:

“The words ‘good order’ used in the section are wide enough to include good order in the sense in which the words would

[p.459] of [1997-1998] 2 GLR 450 be understood in civil life and applicable to civilians and in the sense in which they would be understood in military life as applicable to members of a military force. It is not sufficient to prove that the act, etc; is prejudicial to good ordert but it must also be proved that the act was prejudicial to discipline. For example, an officer on leave, away from his unit and in civilian clothes, who creates a disturbance in a theatre by talking too loudly might have committed an act to the prejudice of good order but not necessarily to the prejudice of discipline. On the other hand, once it is established that the conduct, etc; was prejudicial to discipline it is also prejudicial to good order in the military sense as applicable to members of a military force.”

Whether the conduct or neglect alleged in any particular instance is capable of being prejudicial to good order and service discipline is a question of law; whether it was in fact prejudicial in the circumstances is a question of fact: See Halisbury’ ‘s Laws of England (4th ed), Vol 41, para 430.

So this court has to decide whether the conduct of a superior officer in having sexual intercourse with an adult daughter of a subordinate officer amounted in law to conduct prejudicial to good order and service discipline. I must confess I have found it difficult to determine this matter. No legislation prohibits this conduct. No case was cited to us where such conduct was held to be prejudicial to good conduct and service discipline. The nearest case in point in this country is Hanson v The Republic [1978] 1 GLR 477 where this court held that unlawful sexual intercourse between a major in the Army, whether married or not, with the wife of another soldier of lower rank constituted conduct prejudicial to good order and discipline. The word “unlawful” should be underlined.

In the Hanson case (supra) the particulars of the offence alleged that the accused under the pretext of giving the wife of a low-ranking soldier lift in his car, drove her to a secluded spot in the bush and had sexual intercourse with her against her will. His act was clearly unlawful because it was an act of adultery and more seriously, it was against the wishes of the woman. In the instant case the sexual intercourse between .the appellant and a 24 year old woman has not been shown to be without her consent. The parents said that she could have marrimed the appellant if he

[p.460] of [1997-1998] 2 GLR 450 had gone about it the proper way. They did not show anger at the appellant having sexual intercourse with their daughter. They were only supprisedsurprised and shocked by this conduct, so his case is not on all fours with the Hanson case (supra).

But what he did was immoral. It shocked and offended WOIIl Abban and his wife. It undoubtedly damaged the peaceful or harmonious relationship that should exist between neighbours and colleagues, between a superior officer and his subordinate. I think what the appellant did was capable of being prejudicial to good order in civilian as well as military life. The question is whether it also constituted conduct to the prejudice of service discipline.

I agree with the contention of the counsel for appellant that a person should not be punished for doing an immoral act. The Constitution, 1992 and the Criminal Code, 1960 (Act 29) do not allow that unless the act is also a crime under the Criminal Code or some other enactment—–see article 19 (11) of the Constitution, 1992 and section 8 of Act 29. It is not the function of the courts of this country to enforce morals unless they also happen to be punishable under Act 29 or some other enactment.

However, it must be remembered that we are dealing with a matter of service discipline. An act that may constitute an offence under a code of service discipline may not be an offence under the general criminal law. Thus, incompetence or carelessness that do not cause physical harm or damage are not punishable as crimes. But they may be sanctioned under a code of service discipline if they harm or injure the operations of the organisation in respect of which they are committed. Excessive drinking, sexual pro miscuity, turpitude, disrespect for seniors, scandalous behaviour, quarrelsomeness, garrulousness, etc, even when they are not criminal, may lead to disciplinary action. On the other hand a criminal conduct may attract no or very minor sanction. For instance, an assault without battery during angry exchange of words at work may attract nothing more than verbal admonition.

In my opinion, in determining whether an act or conduct etc constitutes an offence under section 54 (1) of Act 105, the question is not whether it is lawful or merely immoral, but its impact on good order and discipline. Irrespective of its legal classification, an act may be an offence under that provision if it is capable of being prejudicial to good order and discipline. Examples of the type of behaviour customarily charged as conduct to the prejudice of good order and discipline include failing to take reasonable

[p.461] of [1997-1998] 2 GLR 450 care to ensure that a cheque which the accused has issued is honoured on presentation; if the accused is an officer, a charge of scandalous conduct; improper borrowing from subordinates; improper use of a vehicle which is public or service property; and improper possession of public or service property (where theft cannot be proved): see Halisbury, (ibid), note 7.

CI 12 itself gives at page 87 a few instances of matters commonly charged and alleged in the particulars of charge under section 54 (1) of Act 105:

“Being in improper possession of property belonging to a comrade where there is no evidence of actual theft;

Producing a medical certificate, knowing it not to be genuine; improperly wearing a uniform, rank badges, ribbons or medals to which the accused person was not entitled;

Giving a false name to the Service Police;

Being unfit for duty by reason of previous indulgence in alcoholic stimulants.”

It may be noted that many, even most, of the instances in the two lists would necessarily constitute crimes under the criminal enactments of this country. But they are punishable under section 54 (1) of Act 105 because of the prejudicial impact they can have on good order and discipline of the Armed Forces.

With these examples in mind, can it be held that the conduct of the appellant in this case was conduct to the prejudice of good order and discipline of the Army? In support of its judgment, the court martial relied upon subsections (2) and (3) of article 5.16 of CI 12, Vol. 1 (Administration) which emphasise that the “junior men look up to warrant officers for direction and assistance. They are therefore to preserve order and regularity among other men wherever they are. This responsibility rests upon them whether they are on duty or not. In my opinion, whether the appelant’sappellant’s conduct constituted a violation of this onerous responsibility was a matter for the court martial to determine.

A court martial is like a jury. If its conclusion can be supported by evidence before it, an appellate should not normally disturb it. This view is fortified by note (h) at page 87 of CI 12:

“When an accused is charged under section 54, the service tribunal may apply its general knowledge as to what good order and discipline require under the circumstances and so

[p.462] of [1997-1998] 2 GLR 450 come to a conclusion whether the conduct, disorder or neglect complained of was to the prejudice of both good order and discipline.”

In this case the court martial applied its general military know ledge and came to the conclusion that the appellant’s conduct was to the prejudice of both good order and discipline. It had better knowledge of what military good order and discipline require than this court. It cannot be said that its conclusion was unreasonable. I would therefore dismiss the appeal against conviction.

I however agree that the sentence was harsh and excessive. There were factors which when taken into account should make the court take more lenient view. Linda was an adult. It seems she had not seriously or strenouslystrenuously resisted advances made by the appellant over a considerable period of time. This might have led the appellant to think she was willing. It does not appear that the sexual intercourse was without her consent. These factors do not excuse the appellant’s conduct but may mitigate it.

The appellant appears to have an excellent service record. His conduct in this case has tarnished an otherwise good reputation. He has suffered enough mental agony. He will soon have to retire. In these circumstances, a reduction from warrant officer class one to staff sergeant is too severe. I agree that he should only be reduced to warrant officer class two.

Forster JA. I agree.

Appeal against conviction dismissed.

Sentence varied.

LSNA