FOLI vs. THE REPUBLIC [1997-1998] 2 GLR 687

CASE REFERRED TO

Abudulai v The Republic, Court of Appeal, 23 July 1998, unreported.

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 Armed Forces Act, 1962 (Act 105). The facts are sufficiently set out in the judgment of Baddoo JA.

Capt (Rtd) Effah-Dartey for the appellant.

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

Baddoo JA. The appellant, a warrant officer class one (WOIl) of the Ghana Armed Forces, was tried by the disciplinary court martial of the Armed Forces on two counts of an act to the prejudice of good order and discipline, contrary to section 54 (1) of the Armed Forces, 1962 (Act 105).

The particulars of the charges were for the first count, that he impregnated the teenage daughter of a serviceman; and for the second count, that he had sexual intercourse with the same teenage girl at the sergeant’s mess. He was convicted on the first count and acquitted on the second count. His sentence was a reduction in rank from warrant officer class one to the level of a sergeant. He has appealed to this court. The first ground of appeal was that the conviction is unreasonable and cannot be supported in law having regard to the evidence on record.

At the hearing, counsel for the appellant, Effah Dartey, submitted that the definition of section 54 (1) Act 105 was vague and contrary to article 19 (11) of the Constitution, 1992 which provides that: “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.” It was counsel’s submission that section 54 (1) of Act 105 does not specify which particular act is prejudicial to good order and discipline and to that extent, it violated article 19 (11) of the Constitution, 1992. Counsel also submitted that the prosecution must show that the act complained of was capable of creating disorder or inmdisciphline in the Armed Forces. Counsel

[p.689] of [1997-1998] 2 GLR 687 finally submitted that the punishment was too harsh and should be reduced.

For the Republic, Lt Colonel Dosoo submitted that the conduct complained of was likely to affect the discipline and good order in the Armed Forces; that it is entirely a matter for the tribunal to decide on what acts could constitute an offence against discipline in the Armed Forces; and further, that having sexual intercourse with the teenage daughter of a subordinate and impregnating her was such a conduct. He also submitted that the sentence was not harsh having regard to the previous six convictions of the appellant, the last of which he committed in 1972.

I shall first deal with the submission that the charge was vague and contrary to the Constitution, 1992. It is true that section 54 (1) of Act 105 does not specify which particular act could constitute conduct prejudicial to good order and discipline in the Armed Forces. But this does not violate the provisions of the Constitution for the simple reason that it is impossible to list all the conducts that are likely to be prejudicial to good order and discipline. In such a situation it is left to the tribunal of fact to decide whethetr the conduct complained of, was prejudicial to good order and discipline. Where it is impossible to state all the circumstances when an act could constitute a particular offence, the law leaves the matter in the hands of the tribunal of fact to decide. Examples can be found in several legislation. But I shall refer to the Legal Profession Act, 1962 (Act 32) on the question of discipline. Section 16 (1) of Act 32 provides as follows:

“16. (1) A lawyer who has been guilty of grave misconduct in a professional respect (including any conduct which, in pursuance of rules made by the General Legal Council under this Part, is to be treated as grave misconduct in a professional respect) shall be liable—–

(a) to have his name struck off the Roll of Lawyers; or

(a) to be prohibited from practicing as a lawyer for a period specified in the order suspending him.”

It will be observed that in this section what constitutes gravce misconduct in a professional respect, is not specified. The reasonr why it is not specified, in my considered opinion, is that it is

[p.690] of [1997-1998] 2 GLR 687 virtually impossible to itemize and tabulate all the conducts that could constitute grave misconduct. It is left to the disciplinary body to decide what conduct could constitute grave misconduct.

The same thing can be said in respect of section 54 (1) of Act 105. The conducts that could be prejudicial to good order and discipline are many and cannot be set down in any enactment. It is left to the tribunal of fact, whether an act is in fact prejudicial to discipline and good order. The appeal on that ground, therefore fails.

The central issue is whether the act complained of is prejudicial to good order and discipline in the Armed th Forces. Halisbury’ ‘s Laws of England (4 ed) Vol 41, p 413, para 430 on discipline in the Armed Forces gives some examples of behaviour charged as conduct prejudicial tOo good order and discipline. These are: (1) Failing to take reasonable care to ensure that a cheque which the accused has issued is honoured on presentation; (2) improper borrowing from subordinates; (3) improper use of vehicle which is service or public property; and (4) improper possession of public or service property. These are only examples. But it would be seen that any act or conduct which threatens discipline in the Armed Forces is considered conduct prejudicial to good order.

Thus, borrowing from subordinates is considered to be prejudicial to good order because the borrower becomes obliged to the lender. If the officer who has to give orders to the subordinate is indebted to that subordinate, how does he maintain order and discipline? Similarly improper use of a service vehicle is considered prejudicial because improper use will ruin and destroy equipments and materials of the Armed Forces, which in turn will make the Armed Forces less efficient.

From this premise, it will be reasonable to hold that the conduct of the appellant in having sexual intercourse with the teenage daughter of a subordinate is conduct which is prejudicial to good order and discipline in the Armed Forces. Not only would the subordinate feel betrayed by the appellant for seducing his teenage daughter, but he might be very resentful. This is likely to affect good order and discipline. From the facts, which are not in dispute, I think the conviction is well founded and should not be disturbed.

The appellant has also appealed against the sentence on the grounds that it was harsh. We have recently dealt with a similar case in which we considered circumstances which should go to

[p.691] of [1997-1998] 2 GLR 687 mitigate the sentence passed by the tribunal. This is the case of Abdulai v The Republic [1997-98] 2 GLR 450, CA. In that case, the girl involved was a young woman of 24 years. This young woman lived in close relationship with the warrant officer; she cooked for him, watched television with him and kept her bed and mattress in the spare room of the warrant officer. In all the circumstances we found that the parents of the young woman permitted her to be too closely related to the officer. We therefore concluded that the parents of the girl contributed to the incident.

We do not have such mitigating factors in this case. The girl in this case is a teenager who was attending school. The appellant slept with her on several occasions and got her pregnant. We do not see any redeeming factors that would compare with Warrant Officer Abdulai’s case, where we reduced the officer from class one to class two.

I shall however, take into consideration the fact that the appellant has been in service for over 31 years. The appellant shall be reduced from warrant officer class one to staff seargentsear gent.

Afreh JA. I agree that the appeal against conviction should be dismissed. This is the only decision the court can come to following the decision of Abdulai v The Republic, [1997-98] 2 GLR 450, CA. But I1 think having regard to the circumstances of this case the sentence of reduction from warrant officer class one (WOIl) to sergeant, a reduction by three ranks, is too harsh.

Although the girl (Miss Pongo) with whom he had sex was a teenager, she had reached an age where she could lawfully consent to sexual intercourse. She looked bigger than the sixteen years her father claimed her to be. She herself said she was 18. It seems to me the appellant thought she was an adult who was not attending school. She herself said in her statement to the military police that she and the appellant always had sex with her consent.

Even more significant, in my opinion, is that the appellant accepted responsibility for the pregnancy, gave customary drinks and the girl’s family, including her father Staff Sergeant Pongo, accepted the drinks. Miss Pongo went to stay in the appellant’ s house with his family in Leklebe, Volta Region, his village. It was there that she delivered the child who unfortunately died afteir three days. She became the wife of the appellant.

Under cross-examination, Miss Pongo said; “After presenting the drinks there was no vroblemproblem. The death of the child after

[p.692] of [1997-1998] 2 GLR 687 delivery led to some misunderstanding.” I believe if the child had survived there would have been no prosecution. I think this is a factor the court martial should have taken into account in determining sentence.

The appellant is 52 years old and may soon go on retirement. He has been in the army for more than 31 years. Although his service record is not without blemish, most of the disciplinary offences of which he was convicted were minor — mainly absent without leave (AWOL); and the last one was as far back as April 1972. Since then, he seems to have settled down and risen to his present position. To reduce him to the comparatively low rank of sergeant will mean not only a serious blot on his record but a significant loss of income and retirement benefits. He has six children who may be seriously affected by this economic loss to their father.

Taking all these factors into account, I1 would reduce the sentence. I therefore agree that the appellant should be reduced in rank from warrant officer class one to staff sergeant.

Forster JA. I agree.

Appeal against conviction dismissed Sentence varied SA