TETTEH vs. THE REPUBLIC [2001-2002] 1 GLR 200

CASES REFERRED TO

(1) Commissioner of Police v Asamoah (1958) 2 WALR 458, CA.

(2) Mensah and Ankrah v The State [1961] GLR 64, SC.

(3) Afotey v The Republic [1984-86] 1 GLR 475.

(4) Mainoo v The Republic [1984-86] 2 GLR 727.

(5) Boakye v The Republic [1992] GBR 423, CA.

(6) R v Oliva [1965] 1 WLR 1028; [1965] 3 All ER 116; 129 JP 500, CA.

(7) R v Adenjimah (1942) 8 WACA 193.

(8) R v Ansere (1958) 3 WALR 385.

(9) Adel Muhammed v Attorney-General for Palestine [1944] AC 156; [1944] 2 All ER 139, PC. (10) Afari v Commissioner of Police [1963] 1 GLR 381, SC.

(11) R v Roche (1944) 30 Cr App R 29.

(12) Comfort v The Republic [1974] 2 GLR 1.

[p.204] of [2001-2002] 1 GLR 200 (13) R v Sarpong [1959] GLR 383.

(14) R v Adamu [1960] GLR 9, CA.

(15) R v Adade [1959] GLR 365, CA.

(16) Bruce v Attorney-General [1967] GLR 1.

(17) Koranteng II v Klu [1993-94] 1 GLR 280, SC.

(18) Egbetorwokpor v The Republic [1975] 1 GLR 485, CA.

(19) Bonsu alias Benjillo v The Republic [2000] SCGLR 112.

(20) Myers v Director of Public Prosecutions [1965] AC 1001; [1964] 3 WLR 145; [1964] 2 All ER 881, HL.

(21) Asare v Donkor [1962] 2 GLR 176, SC.

(22) Asante v Bogyabi [1966] GLR 232, SC.

(23) Kini v The Republic [1980] GLR 412.

(24) Adam v The Republic [1992] 2 GLR 150.

(25) Commissioner of Police v Owusu (1958) 3 WALR 364.

APPEAL by the appellant, a corporal in the Ghana Armed Forces, from the judgment of the Court of Appeal dismissing his appeal against the decision of the court-martial established under the Armed Forces Act, 1962 (Act 105) convicting him, inter alia, of using violence against a superior officer and sentencing him to be dismissed from the Ghana Armed Forces. The facts are sufficiently stated in the judgment of Adzoe JSC.

Koka for the appellant.

Group Captain Obeng Ntim for the respondent.

Adzoe JSC. Delivered the judgment of the court. The complainant in this case was an officer in the Ghana Armed Forces. He was the Provost Marshal. 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 of military service to his credit.

On the night of 19 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 pm the Provost Marshal was also driving into the Burma Camp. According to the prosecution, the Provost Marshal stopped at the Burma Camp traffic light because the red light was on, meaning all vehicles must stop. But as he waited,

[p.205] of [2001-2002] 1 GLR 200 a car from behind drove past him, ignoring the red signal. When the green light came on, the Provost Marshal 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 Marshal walked up to him and, recognising the appellant, the Provost Marshal 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 realised 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.

His defence was that he was returning from town to the barracks that night when he realised that another car was following him. When he was checked at the traffic light and allowed to go, he realised 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 identify 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 Staff Sergeant Otu came; but before Otu arrived the appellant “was trying to release himself from

[p.206] of [2001-2002] 1 GLR 200 the grips of the man and they all fell.” Staff Sergeant 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.”

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 the 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 the complainant got there, “a gentleman came out from that car so later on there was an argument between the two 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.”

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-martial 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?

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:

“(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.

(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.”

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

[p.207] of [2001-2002] 1 GLR 200 remarked that: “The court has realised 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 show that the president of the court read all the three counts and said: “The court finds the accused guilty on all the three counts.” That was all. No conviction was even recorded. The court simply proceeded to call for the past record of the appellant and when it was furnished with it, the sentence of dismissal was pronounced. Two errors seem to have been committed, namely that there was no reasoned judgment and there was no conviction. The Court of Appeal took no account of the absence of the conviction and as for the omission of a reasoned judgment, the court said it was not essential. In the judgment of Baddoo JA, in which the other two judges concurred, the learned judge held that:

“An additional ground was filed on behalf of the appellant that the court did not give reasons for its decision contrary to section 177(1) of Act 30. In the case of WO1 Awudu Gamel v The Republic 1/98 criminal appeal, unreported, Afreh JA held that: ‘Court-martial is like a jury. If its conclusion can be supported by evidence before it, an appellate court should not normally disturb it.’ I agree with the learned judge that if there is evidence to support the decision, the appellate court will not disturb the judgment. In this case, it is my considered opinion that there is evidence to support the decision of the disciplinary court-martial. The appeal is therefore dismissed on all grounds.”

The point made by the court is grave enough to merit scrutiny. It is to be observed that three propositions were advanced before the Court of Appeal, namely that:

(1) the court-martial ought to have given a reasoned judgment when it decided to convict the appellant;

(2) a court-martial is not obliged to give a reasoned judgment; and

(3) the failure to give a reasoned judgment is of no consequence if an appellate court finds that there is sufficient evidence on

[p.208] of [2001-2002] 1 GLR 200 the record to justify the decision of the trial court-martial.

The judgment of the Court of Appeal in effect rejected proposition (1) and gave its support to propositions (2) and (3). I feel rather reluctant to accept the proposition that a court-martial is not under a duty to give a reasoned judgment for the reason that its decision is like the decision of a jury. I think the equation is misleading. In the first place, it appears to me that a court-martial is a peculiar court which is sui generis and basically not analogous to a jury. The disciplinary court-martial created under the Armed Forces Act, 1962 (Act 105) sits as a panel of judges and each member is expected to make his own decision. Section 70(1) of Act 105 actually provides that “A disciplinary court-martial shall consist of not less than three officers and not more than such number of officers as may be prescribed.” These members are the judges of both fact and law. Their decision will have to be unanimous or by the majority. The president of the court takes an active part in the decision-making process. A trial by jury is a different procedure. The jury are the final arbiters who decide on the verdict. The judge does not take part in the decision of guilt or innocence. His only duty is to direct the jury and instruct them on the principles of law that will guide them in reaching a decision on the guilt or innocence of the accused. He must include in his instructions to the jury the elements of the offence charged, the nature of the evidence needed to establish the offence and the burden on the prosecution to prove its case in order to secure a guilty verdict. The difference here is the non-participation of the judge in the decision in a jury trial. It is therefore not appropriate to say that a court-martial is like a jury. I would rather liken the court-martial to a panel of judges hearing a case summarily. The panel is both the judge and the jury just like a single judge hearing a case summarily. In my opinion, a court-martial cannot be equated with a jury.

If a court-martial is not a jury, must it then give reasons for its decision? I think it must. Every criminal trial must be regulated by the procedure laid down in the Criminal Procedure Code, 1960 (Act 30) subject to any provisions to the contrary in any other enactment. Act 30 provides for the procedure governing all criminal trials. It provides in section 1 that:

“1. All offences under the Criminal Code and, subject to the provisions of any enactment, all other offences shall be enquired into, tried and otherwise dealt with according to this code.”

[p.209] of [2001-2002] 1 GLR 200

The language is clear. The Act embraces all criminal offences. A military service offence is clearly within its ambit, particularly as Act 105 itself provides in section 75 that:

“75. Save as otherwise expressly provided in this Act and any regulations made thereunder, the rules of evidence and procedure to be observed in proceedings before a service tribunal shall as far as is practicable be the same as those observed in proceedings before a civil court.”

Section 98 of Act 105 defines a “service tribunal” as “a court-martial or a person presiding at a summary trial” and a “civil court” as “a court of ordinary criminal jurisdiction in Ghana and includes a Court of summary jurisdiction.” These provisions of both Act 30 and Act 105 leave me in no doubt that a trial before a court-martial must be in accordance with the relevant procedures under Act 30. To hold otherwise would lead to a manifest absurdity, for it would mean that the law as to criminal procedure would be different depending on whether the trial comes before a court-martial or before the ordinary criminal courts of this country. Act 30 sets out two broad procedures — summary trial and trial on indictment. A summary trial is held before a judge or a panel of judges sitting as the adjudicating authority; in a trial on indictment a judge sits with a jury or with assessors. The process before the trial court-martial was a summary trial. In that type of trial the rule requires that the decision to convict the accused must take the form of a reasoned judgment. The rule is in section 177(1) of Act 30. It reads as follows:

“177. (1) The court, having heard what each party has to say and the witnesses and evidence so adduced, shall consider and determine the whole matter and may either convict the accused and pass sentence upon or make an order against him according to law or acquit him, as the case may be, and the Court shall give its decision in the form of an oral judgment, and shall record the decision briefly together with the reasons for it, where necessary.”

What this means is that the trial court must, at least, resolve the facts in issue and give reasons why it prefers the prosecution’s case to that of the accused. The reasons are necessary unless it is clearly obvious that guilt must be inferred from the facts and circumstances of

[p.210] of [2001-2002] 1 GLR 200 the case. There are several decisions in our case law. I will start with the case of Commissioner of Police v Asamoah (1958) 3 WALR 458, CA. The then Court of Appeal in construing section 173 of the Criminal Procedure Code, 1951 (Cap 10), which had an identical provisions, held in the headnote that: “The proper interpretation to be attached to section 173 of the Criminal Procedure Code, c. 10, which speaks of the reasons for a decision being recorded ‘where necessary,’ is that a record is always necessary in the case of a conviction unless the reason for the conviction is clearly obvious and beyond doubt from the facts and circumstances of the case.”

The court itself observed that the language of section 173 of Cap 10 required a magistrate to record reasons for decisions only “where necessary” but took the view that reasons are necessary whenever “there is a conviction unless the reason is so clearly obvious and beyond doubt that guilt can be inferred from the facts and the circumstances of the case. The learned judges reasoned at 459 that: “If, however, in any case the reason for a decision is not so obvious to an appellate court then the trial court has erred in not recording its reason. We should remember that what may appear obvious to a magistrate or a judge may not appear to be so to the public. Nobody likes a decision against him, more especially in a criminal matter, if it is given summarily without a reason.”

The courts have consistently held that where a case is contested because the accused maintains that he is innocent the court must give reasons for convicting the accused. In construing a similar provision in section 300 of the old Cap10, which required the judge in a trial with the aid of assessors to give a reasoned judgment, the Supreme Court said in Mensah and Ankrah v The State [1961] GLR 64 at 67–68, SC that the rule is:

“. . . well founded in law on the principle that the judicial process is well known to be to resolve the facts in issue and facts relevant to the issue and then to apply the law to the facts found. If the question ‘What are the facts found?’ cannot be answered with precision and particularity, the judgment ought to be held to be unsatisfactory, because the judicial process has not been applied. A fortiori where the judgment is non-existent, the judicial process [p.211] of [2001-2002] 1 GLR 200 has been manifestly ignored as in the present case.”

The principle has remained with us up to today. Three recent cases illustrate the point. In the case of Afotey v The Republic [1984-86] 1 GLR 475 at 477, in a trial for assault, the magistrate convicted the appellant in a judgment which read as follows: “Judgment: Prosecution has proved its case beyond all reasonable doubts against the accused. The accused is convicted and sentenced to a fine of ¢500 or six months’ imprisonment . . .” The accused appealed against the conviction and the High Court allowed the appeal, holding that the trial magistrate ought to have given a more careful and judicious appraisal of the evidence than she appeared to have done. The court said at 477:

“It is not being advocated that she should have written a literary essay or opinion in arriving at her judgment, which is not her duty; but she could have made findings of fact (very briefly) with brief reasons in support of her verdict. The magistrate court is a court of summary jurisdiction. The magistrate should adjudicate as such, but when cases are heavily contested (as in the instant case), she must be seen to have exercised her powers and discretion judiciously. The terseness of her judgment is admired, only that, it fell little short of what is expected of her.”

See also Mainoo v The Republic [1984-86] 2 GLR 727 and Boakye v The Republic [1992] GBR 423, CA. In view of the authorities, I think the judgment of the court-martial was clearly defective.

Let me now turn to the grounds of appeal argued by the appellant’s counsel. Five grounds were filed but he argued only two, namely grounds B and E; he told the court he was abandoning grounds A, C and D. His contention in respect of ground B is that the prosecution failed to call material witnesses and therefore failed to establish a case against the appellant. He argued that in the face of such failure to call material witnesses, it was wrong for the Court of Appeal to dismiss the appeal against conviction. This argument will be correct if, indeed, there were material witnesses which the prosecution did not call in support of the case against the appellant, for the law is settled that the failure means that the case against the appellant was not proved beyond reasonable doubt.

As a general rule the prosecution has the discretion to present

[p.212] of [2001-2002] 1 GLR 200 such witnesses as it elects to call in support of its case. But the discretion must be exercised in a manner that would further the interests of justice and ensure fairness to the accused so that he does not suffer any disadvantage: see R v Oliva [1965] 3 All ER 116, CCA. The rule that the prosecution must call material witnesses becomes, therefore, an important qualification on the prosecution’s discretion. Whether or not a witness is a material witness depends on the quality and content of the evidence he is expected to offer in relation to the case on trial. He will be deemed to be material if the evidence expected from him is deemed to be so vital as to be capable of clearly resolving one way or the other an important and decisive issue of fact that is in controversy. The evidence must appear likely to have a profound impact on the facts of the case to the extent that if it is accepted as true it will compel the court to come to a conclusion that is different from the decision it has taken. Thus, for example, in the case of R v Adenjimah (1942) 8 WACA 193 a witness was adjudged not to be a material witness because the court was of the view that whatever evidence he would give could not have changed the decision reached by the trial court upon the evidence on record. But in R v Ansere (1958) 3 WALR 385, where the evidence expected from the witness was found to be necessary to establish whether or not the accused was the person who took the monies he was alleged to have stolen, the court held that he was a material witness because his evidence would have made clear the accused’s guilt or innocence; and the prosecution’s failure to call him meant that they were unable to prove the offence of stealing with which he was charged.

It must also be noted that the prosecutor has the right to decide who his material witnesses are. No law has as yet taken away what Lord Thankerton in the case of Adel Muhammed El Dabbah v Attorney-General of Palestine [1944] 2 All ER 139 at 144, PC called “. . . the long-established right of the prosecutor to exercise his discretion to determine who the material witnesses are.” In the appeal before us the persons referred to by the appellant as material witnesses were the guardsmen on duty that night near the traffic light at the Burma Camp. Counsel has argued that since the trouble arose because of the alleged crossing of the red light by the appellant, the prosecution were bound to call the guards, or at least one of them, to substantiate the allegation that the appellant drove through the traffic light when the red lights were on. He says that evidence would have gone to demonstrate the credibility of the colonel who was the complainant or would have gone to demonstrate the

[p.213] of [2001-2002] 1 GLR 200 credibility of the appellant. In his view, if the evidence of the guards show that the appellant did not drive through the red light it would show that the colonel was not truthful ab initio and therefore went to fabricate the follow-up story that the appellant assaulted him. Accordingly, he submits that the failure by the prosecution to call those guardsmen meant that the prosecution failed to prove the case against the appellant beyond reasonable doubt.

What is the prosecution’s case? It is in the charges. It is that the appellant (1) struck his superior officer with a blow; (2) used violence against the officer; and (3) resisted arrest and struggled with the arresting officers—all of which amounted to conduct prejudicial to good order and discipline. The appellant was not charged with a traffic offence. But that was what the guards allegedly witnessed and could testify to; they knew nothing about what took place in the appellant’s house between the appellant and the colonel. The evidence about what happened at the traffic light has no momentous relevance to the offences charged, and to my mind it would not have assisted the trial court in any way in determining the guilt or innocence of the appellant on the offences charged. The guardsmen had nothing to supplement the prosecution’s case to enable the court make a just and fair decision. In my opinion, the guardsmen were not material witnesses and the failure to call them did no harm to the prosecution’s case. That ground of appeal fails and is accordingly dismissed.

The other ground of appeal argued is that the sentence of dismissal is harsh and excessive. He contends that the court-martial was wrong in taking into consideration “previous offences committed by the accused in respect of which he had already been penalised.” He argued that:

“The court-martial erred in law in considering previous offences of the appellant to which he admitted and was penalised and same placed on his service record, in passing sentence on him. This accounts for the harshness of the sentence vis-à-vis the alleged offence and circumstances surrounding them.”

Counsel relied on the decision of this court in the case of Afari v Commissioner of Police [1963] 1 GLR 381, SC.

This submission is clearly misconceived. The decision in the Afari case (supra) dealt with a situation that was quite different from the case

[p.214] of [2001-2002] 1 GLR 200 now before us. It related to punishment in respect of other charges pending against the accused. The law which was applied was section 162 of Act 30. It reads:

“162. Where an accused person is found guilty of an offence, the Court may, in passing sentence, take into consideration any other charge then pending against the accused if the accused admits the other charge and desires it to be taken into consideration and if the prosecutor of the other charge consents.”

This provision must be distinguished from the provision in section 300(1) of the same Act 30 permitting the court, after convicting the accused, to take into account his previous record of convictions and impose on him an enhanced punishment. Section 300(1) of Act 30 reads:

“300. (1) Where a person, having been convicted of crime, is again convicted of crime he shall be liable to increased punishment in the cases and manner provided in the Table annexed to this section and the notes thereto. . .”

Counsel for the appellant should have been familiar with the procedure which is very much applied in the courts. The view has long been held that the offender must be punished in a manner that emphasises society’s determination to control crime and deter potential offenders. For the recidivist, the law has always provided an enhanced sentence. It is therefore common practice for the court, after convicting the accused, to hear evidence of any previous convictions against him. The court is entitled to take that information into consideration in determining the appropriate punishment to impose in the circumstances of the particular case before it. It is no wonder then that article 112.50(2)(b) of the Armed Forces Regulations, 1970 (CI 12) also provides that the court-martial, in determining the severity of punishment, shall “impose a punishment commensurate with the gravity of the offence and the previous character of the offender.” Besides, the Rules of Procedure (Armed) 1956 of the British Army Act, 1955, which is applicable to the Ghana Armed Forces by virtue of article 112.04 of the Armed Forces Regulations, Vol 11 (CI 12) also provides in section 71(b) that the court shall, in their deliberation on the sentence, take evidence including the service record of the accused which shall include:

[p.215] of [2001-2002] 1 GLR 200

“Particulars of any offence of which the accused has been found guilty during his service and which is recorded in the service book relating to the accused and of the length of time he has been under arrest awaiting trial or in confinement under a current sentence.”

All these several provisions give the court-martial power to look at the previous record of the appellant when considering his sentence. It is not open to counsel to attack the court. Since the appellant was a serving soldier, the court was right in receiving a statement of the appellant’s record from a properly accredited officer, “the Custodian of Service Records”: see the English case of R v Roche (1944) 30 Cr App R 29.

But before considering the plea to reduce the sentence it would be necessary to determine the fate of the conviction itself. There will be no need to consider the sentence if the conviction cannot stand. And that takes me back to the judgment of the trial court-martial. I quote that judgment again. It reads: “The court finds the accused person guilty on all the 3 counts.” As I have pointed out already it seems to me that this is no judgment having regard to the nature of the trial. The authorities indicate that our courts have long been legally wedded to the principle that where a trial court in a summary trial convicts the accused but makes no findings of fact and fails to write a reasoned judgment that failure on the part of the court vitiates the conviction, rendering it liable to be quashed by an appellate court. The courts have not, as yet, seen any ground for divorce from that principle. I always remember the words of Osei-Hwere J (as he then was) in the case of Comfort v The Republic [1974] 2 GLR 1 at 5 that “Criminal convictions cannot be founded on the mere ipse dixit of a trial court.” Such a judgment is often declared a nullity either because the trial judge is said to have erred in law: see Commissioner of Police v Asamoah (supra) and Comfort v The Republic (supra); or the judgment is said to be unsatisfactory because the court failed to discharge the judicial process: see R v Sarpong [1959] GLR 383 and Comfort v The Republic (supra); or that the failure is fraught with the danger of injustice: see R v Adamu [1960] GLR 91, CA. The judicial process mentioned in the cases is the duty to resolve the facts in issue and facts relevant to the issue and apply the law to the facts. The general trend discernible from the cases is a clear indication that our courts invariably quash such convictions and proceed to acquit and discharge the appellants.

Even though an appeal is often said to be by way of rehearing,

[p.216] of [2001-2002] 1 GLR 200 the courts have not adopted the practice of rehearing this type of cases. The rationale behind this attitude appears to me to be this, that because the courts treat the whole trial as a nullity, they cannot in the same vein look at the proceedings and determine what should have been the correct decision of the trial court. In R v Adade [1959] GLR 365, CA the trial judge convicted the appellant upon the opinion of the assessors without writing a judgment as required by the Criminal Procedure Code. The conviction was quashed on appeal. Korsah CJ delivering the judgment of the Court of Appeal said at 366-367: “In our view, there is evidence on record upon which the Court might reasonably have convicted the appellant of the offence for which he was arraigned before it. We have, however, been obliged to allow the appeal by reason of errors which are apparent on the record, and which vitiate the conviction and the sentence imposed upon the appellant …

It is clear . . . that in a trial by a court with the aid of assessors, where the Judge is required to pronounce his verdict irrespective of what the opinions of the assessors may be, the Judge must write a judgment stating his reasons for whatever conclusion he reaches upon the evidence adduced before him.”

The court as in all such other cases simply allowed the appeal, set aside the conviction and acquitted and discharged the appellant: see also Bruce v Attorney-General [1967] GLR 170, CA; Afotey v The Republic (supra); Boakye v The Republic (supra) and Mainoo v The Republic (supra), where Francois JSC, sitting as an additional High Court judge, allowed the appeal but ordered a retrial. Of course the decision to order a retrial where a trial has been declared a nullity is always a matter within the discretion of the appellate court having regard to the nature and particular circumstances of each particular case and, above all, the need to do justice. The case before us falls within the class of unsatisfactory trials which the authorities have persistently condemned and disapproved of. In dealing with appeals of this kind, we must remind ourselves of the functions of this court. We sit merely as a court of appeal and in that regard our first duty is to find out if a decision has been made by the trial court; then we have to see the evidence which supported the finding made by the trial court; next, if any question of law arises, we have to see whether or not the law has been properly applied. So here, we have to see whether there is a proper judgment as required by our law. In a recent decision by this court

[p.217] of [2001-2002] 1 GLR 200 in the case of Koranteng II v Klu [1993-94] 1 GLR 280 at 284, SC Adade JSC put the matter clearly thus: “There is, however, one aspect of the matter on which I wish to comment, that is the absence from the record of appeal of the reasoned opinion or judgment of the trial judge. It is a serious matter which should not be glossed over lightly.

When the then Chief Justice’s attention was drawn to this defect whilst the case was pending on appeal before the Court of Appeal, he directed, administratively, that the case be sent back to the High Court to be heard de novo. Admittedly, the Chief Justice’s intentions were admirable; unfortunately he tripped on the law, as was pointed out by Lamptey JA in his ruling of 18 December 1987 in Klu v Kwantreng [1989-90] 1 GLR 135.

But the impression must on no account be created that because an appeal is by way of a rehearing, the reasoned judgment of the trial court is not necessary. In my view, as a rule, that judgment is always necessary; it is the basis of the appeal, and ought always to be seen and read by the appellate tribunal. An order, such as that recorded by the judge in the record of appeal that: ‘Per court: The plaintiff’s claim [is] dismissed with costs of ¢750 inclusive of ¢500 for counsel’ cannot be a substitute of the reasoned judgment of the court. It is the reasoned judgment which will indicate to the appellate court where the judge went right, or wrong, both on the facts and on the law; and whether the judge discharged the judicial function imposed on him, or whether he failed to do so. That function has been defined as finding the facts and applying the law to the facts. If this function cannot be said to have been adequately performed by the trial judge, an appellate court will in all probability send the case back to be retried, notwithstanding the fact that an appeal is by way of rehearing.”

My conclusion is that our courts have always frowned upon the type of judgment given by the court-martial against the appellant in this case, and in my humble opinion, it must be given the same type of burial which was solemnly given to its predecessors. I will allow the appeal for the reason that the court-martial did not give any judgment. The conviction is accordingly quashed and the appellant acquitted and discharged.

Ampiah JSC. I agree.

[p.218] of [2001-2002] 1 GLR 200

Kpegah JSC. I agree.

Acquah JSC. I agree.

Atuguba JSC. I have had the advantage of reading beforehand the well-researched and well-reasoned judgment of my brother Adzoe JSC and have been greatly assisted by it. However, I have, after the most anxious consideration and reflection, been able to agree that the appeal in this case should be allowed; but on slightly different grounds.

This appeal turns on the proper effect of section 177(1) of the Criminal Procedure Code, 1960 (Act 30) upon a trial held under that Code. My brother Adzoe JSC has assembled almost all the authorities that touch and concern the interpretation of that section. Since he has fully set out that section I need not repeat its provisions here.

The authorities set out by my brother Adzoe JSC have held that it is imperative to give reasons for a judgment as required by the said section 177(1) of Act 30, which is mandatory, unless the reasons for a conviction are clearly obvious and beyond doubt from the facts and circumstances of the case; and where this is not done the conviction cannot stand. In such a case, almost invariably the appellant is acquitted and discharged. Most of the said authorities, however, related to trial with assessors where failure by the trial judge to write a reasoned judgment, where he agrees with the assessors; might involve abandoning his jurisdiction to the assessors. The rest were determined solely upon the construction of statutory provisions similar to those contained in section 177(1) of Act 30 without regard to provisions of the nature and type contained in section 406 of Act 30 and section 31 of the Courts Act, 1993 (Act 459).

Section 406 of Act 30 provides, as far as relevant, as follows:

“406. (1) Subject to the provisions hereinafter contained, no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or review on account —

(a) of any error, omission, or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or other proceedings before or during the trial or in any enquiry or other proceedings under this Code; . . . unless such error, omission, irregularity, or misdirection has in fact occasioned a substantial miscarriage of justice.”

[p.219] of [2001-2002] 1 GLR 200

Section 31(1) and (2) of Act 459 similarly provides as follows:

“31. (1) Subject to subsection (2) of this section an appellate court on hearing any appeal before it in a criminal case shall allow the appeal if it considers that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment in question ought to be set aside on the ground of a wrong decision of any question of law or fact or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.

(2) The court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment.”

It is clear therefore that section 177(1) of Act 30 ought not to be construed or given effect independently of these provisions. In so far as some of the authorities relied on by my brother Adzoe JSC were subject to statutory provisions similar to those under section 406 of Act 30 and section 31 of Act 459, at the time they were decided, I would hold them to have been decided per incuriam of those provisions. Section 177(1) of Act 30 is clearly subject to the provisions of section 406 of Act 30 and section 31 of Act 459.

The effect of those saving provisions has been judicially determined in Ghana and in England, under similar provisions. The construction placed on them is that if the jury (or court), properly directed, would have inevitably or without doubt convicted the accused, then the proviso to those provisions would validate the conviction and an appeal therefrom would be dismissed: see Egbetorwokpor v The Republic [1975] 1 GLR 485, CA; Bonsu alias Benjillo v The Republic [2000] SCGLR 112 and Myers v Director of Public Prosecutions [1965] AC 1001, HL.

I would therefore hold that an omission to write a reasoned judgment under section 177(1) of Act 30 is not fatal, not only when the reason for the decision (whether acquittal or conviction) is clearly obvious and beyond doubt but also where the decision or judgment appealed from is supported by evidence of such a nature that if the trial [p.220] of [2001-2002] 1 GLR 200 court had directed itself properly on the provisions of section 177(1) of Act 30, by writing a reasoned judgment, it would have inevitably or without doubt have convicted the appellant.

In my view, the failure to make findings of fact and write a reasoned judgment under section 177(1) of Act 30 does not render the proceedings a nullity as held, with the greatest respect, in Mainoo v The Republic [1984-86] 2 GLR 727. It is difficult to see how the failure to write a reasoned judgment, where necessary, should infect a proper charge sheet, properly admitted evidence, etc; all with a nullity. In my view, such a judgment is wholly unsatisfactory and, inter alia, an appellate court is entitled to make up its own mind on the facts and come to a conclusion of its own: see Asare v Donkor [1962] 2 GLR 176, SC; Bruce v Attorney-General [1967] GLR 170 at 187, CA and Asante v Bogyabi [1966] GLR 232, SC. It is interesting that these latter two authorities were relied on in Mainoo v The Republic (supra).

As regards the failure to convict before passing a sentence, I would hold that such an omission is a mere curable technicality, where an intent to convict for the charge or charges is clear on the record: see Kini v The Republic [1980] GLR 412 and Adam v The Republic [1992] 2 GLR 150.

I must confess that at first I took the view that if the trial court-martial had written a reasoned judgment (ie directed itself properly), it would have inevitably or without doubt, as a reasonable jury (for that is what a court sitting alone, also is), convicted the appellant. On reflection, however, I think a fair view of the matter is that though the evidence against the appellant was strong, it did not have that effect. In such a case the proviso is inapplicable: see Commissioner of Police v Owusu (1958) 3 WALR 364.

For these reasons, I would also allow the appeal.

Appeal allowed.

DRKS