REPUBLIC vs. MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH AND ANOTHER [1973] 2 GLR 227

CASES REFERRED TO

(1) Republic v. Asare, Court of Appeal, 29 July 1968, unreported; digested in (1968) C.C. 137.

(2) Heddon v. Evans (1919) 35 T.L.R. 642.

(3) Republic v. Tekperbiawe Divisional Council; Ex parte Nene Korle II [1972]1 G.L.R. 199. (4) In re Mansergh (1861) 1 B. & S. 400; 30 L.J.Q.B. 296; 4 L.T. 469; 26 J.P. 22; 7 Jur. (n.s.) 825; 9 W.R. 703; 121 E.R. 764.

(5) R. v. Secretary of State for War; Ex parte Price [1949]1 K.B. 1; 64 T.L.R. 528; 92 S.J. 588, D C. (6) Ex parte Bradlaugh (1878) 3 Q.B.D. 509; 47 L.J.M.C.105; 38 L.T. 680; 42 J.P. 583; 26 W.R. 758. (7) Campbell v. Brown (1829) 3 Wils. & Sh. 441, H.L. (Sc.).

(8) R. v. Worthington-Evans; Ex parte Madan [1959] 2 Q.B. 145; [1959] 2 W.L.R. 908; [1959] 2 All E.R. 457; 103 S.J. 473, D.C.

(9) R. v. Hurst; Ex parte Smith [1960] 2 Q.B. 133; [1960] 2 W.L.R. 961; [1960] 2 All E.R. 385; 104 S.J. 464, D.C.

(10) Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2 W.L.R. 163;

[1969] 1 All E.R. 208, H.L. reversing [1968] 2 Q.B. 862; [1967] 3 W.L.R. 382; [1967] 2 All E.R.

986, C.A.

[p.231] of [1973] 2 GLR 227 (11) Republic v. Maikankan [1971] 2 G.L.R. 473, S.C.

(12) Republic v. Boateng; Ex parte Adu-Gyamfi II [1972] 1 G.L.R. 317.

(13) R. v. Secretary of State for War; Ex parte Martyn [1949] 1 All E.R. 242; 65 T.L.R. 102; 93 S.J. 59, D.C.

NATURE OF PROCEEDINGS

APPLICATION for an order of certiorari to quash the proceedings of a military tribunal appointed under N.R.C.D. 90 wherein the respondent raised a preliminary objection as to the jurisdiction of the High Court. The facts are sufficiently stated in the ruling.

COUNSEL

W. A. N. Adumua-Bossman (with him K. Atta Caesar, N. Y. Agbesi, W. F. Sawyer and E. V. O. Danquah) for the applicants.

Gyeke-Dako, Director of Public Prosecutions (with him Kaleo-Bioh, Senior State Attorney and Miss Ampofo-Anti, Assistant State Attorney) for the respondent.

JUDGMENT OF ABBAN J.

This is an application for an order of certiorari to remove into the High Court the proceedings and the decision of a military tribunal for the purpose of quashing them. The application is made under Order 59 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).

The applicants, G. K. A. Ofosu-Amaah and Charles Adu-Boateng, together with other persons were charged with several offences under the Subversion Decree, 1972 (N.R.C.D. 90), and under the Criminal Code, 1960 (Act 29).They were convicted and the first applicant was sentenced to death, but the sentence was later commuted to life imprisonment. The second applicant also had life imprisonment, and both applicants are now serving their sentences at the Medium Security Prison, Nsawam.

The learned Director of Public Prosecutions (hereinafter referred to as the D.P.P.), who appeared for the respondent, has raised a preliminary objection which goes to the jurisdiction of the High Court to entertain the application. The argument on which the D.P.P. based his said objection has raised certain fundamental questions of considerable importance.

His first contention was that a military tribunal, appointed under N.R.C.D. 90, is not an inferior court. If anything at all, its jurisdiction is at par with that of the High Court. In developing his argument, the D.P.P. referred to section 1 of N.R.C.D. 90, which contains a catalogue of criminal offences triable by that military tribunal. He pointed out that some of these offences are punishable by death, and the minimum sentence which the said tribunal can impose is fifteen years. He argued that no inferior court in the country can pass a death sentence. The highest sentence which the circuit court, for example, can pass is ten years, imprisonment. Only the superior courts have power to sentence a person to death. The D.P.P. therefore submitted that if a particular military tribunal also has power to pass the death sentence, then it would be wrong to contend that the said tribunal is inferior to the High Court. The learned D.P.P. then referred to the case of Republic v. Asare, Court

[p.232] of [1973] 2 GLR 227 of Appeal, 29 July 1968, unreported; digested in (1968) C.C. 137 and submitted that the application should be dismissed in limine.

Leading counsel for the applicants, Mr. Adumua-Bossman, contended otherwise. He argued that a military tribunal is an inferior court at common law. In support of this contention he referred to Constitutional Law by Wade and Phillips (8th ed.), p. 404 and Heddon v. Evans (1919) 35 T.L.R. 642. Learned counsel also referred to Parts I and II of the Courts Act, 1971 (Act 372), which set out the hierarchy of the courts in this country. No mention was made of military tribunals in Part I of the said Act 372 which dealt with the superior courts. Counsel therefore submitted that since Act 372 never included military tribunals amongst the courts constituting the Superior Courts of Judicature the status of the said tribunals cannot be equated to that of the High Court which is one of the superior courts.

Mr. Adumua-Bossman, again, referred to section 6 of N.R.C.D. 90 and section 67 of the Armed Forces Act, 1962 (Act 105), and contended that a military tribunal to be set up under N.R.C.D. 90 is not different from a court-martial referred to in the Armed Forces Act, 1962 (Act 105).On this basis, he submitted that since courts-martial have always been inferior courts and since this particular military tribunal, established under N.R.C.D. 90, is of the same status as a court-martial, it follows, without question, that the High Court is superior in status to the said military tribunal.

Before I go on to the next limb of the preliminary objection, I think it is appropriate that I consider, at this stage, the arguments so far advanced. It may be observed that there is no decision by our courts as to whether or not a military tribunal or a court-martial, for that matter, is equal in status to the High Court. At least, my research, through the local reports, has not revealed any. But there are several decided cases in other Commonwealth countries on this issue.

It seems to me, however, that the determination of the issue as to the status of the military tribunal, appointed under the Subversion Decree, 1972 (N.R.C.D. 90), does not depend entirely on the type of offences which that military tribunal can try; neither does it depend on the type of sentences which it can pass. The offences which that tribunal can try and the sentences which it can pass are all matters which are to be taken into consideration when determining the extent of the jurisdiction of the said tribunal, but they cannot assist when determining its status.

The jurisdiction of a court is quite a different thing from its status. For instance, the fact that a circuit court has jurisdiction to try certain criminal offences summarily, but the High Court has no such jurisdiction does not mean that the circuit court is superior or is equal in status to the High Court. Again, the High Court has original jurisdiction in all matters, while the jurisdiction of the Court of Appeal, except in certain cases and under certain circumstances, is confined to hearing appeals only. This does not mean that the High Court is superior in status to the Court of Appeal.

[p.233] of [1973] 2 GLR 227

In my view the fact that an inferior court or tribunal is given special powers by an enactment to try cases which normally should have been dealt with by a superior court cannot by itself be conclusive evidence that the status of that inferior court or tribunal has been raised to that of the superior court. The status of a court is something which must specifically be conferred by an enactment. So that if the enactment conferring those special powers on the inferior court is silent as to its status, then notwithstanding those special powers, the inferior court concerned will continue to be regarded as inferior. For in those circumstances, there will be a presumption that no change in the status of the said inferior court was intended by the enactment. There is nothing in N.R.C.D. 90 as to the status intended for the special military tribunal appointed in accordance with the provisions of that Decree.

Furthermore, in the Courts Act, 1971 (Act 372), the status of the ordinary military tribunals has not been indicated. But one thing is certain. The said Act 372, re-stated the provisions of the Constitution which deal with the superior courts and made it clear that the High Court of Justice, the Court of Appeal and the Supreme Court (the latter court having now been abolished by section 1 of the Courts (Amendment) Decree, 1972 (N.R.C.D. 101), are the only recognised superior courts in the land. The implication here is that all other courts or adjudicating authorities, including military tribunals or courts-martial, are inferior in status to the High Court.

Quite apart from Act 372, a close look at section 6 of N.R.C.D. 90 itself gives a clue as to the status intended for this special military tribunal. The said section 6 provides as follows:

“6. (1) The Armed Forces Act, 1962 (Act 105) shall, with such modifications as may be necessary to give effect to the provisions of this Decree and such other modifications as the National Redemption Council may direct, apply in respect of the arrest, trial and punishment of any person (whether a civilian or not) for an offence under this Decree as if that offence were a service offence and as if a Military Tribunal appointed under this Decree were a service tribunal, and also as if any person alleged to have committed an offence under this Decree were a person subject to the Code of Service Discipline.

(2) Subject to the provisions of this Decree, this Decree shall be construed as one with the Armed Forces Act, 1962 (Act 105).”

(The emphasis is mine.)

From the above provisions, I think the type of a military tribunal envisaged by N.R.C.D. 90 is not expected to be different in status from the ordinary service tribunal which is a court-martial convened under the Armed Forces Act, 1962 (Act 105); and that is the more reason why this section 6 is compelling such a tribunal, when trying cases, to adhere to the procedure (with such necessary modifications) which is normally followed by a court-martial convened under Act 105.

[p.234] of [1973] 2 GLR 227

I am therefore of the opinion that a military tribunal appointed under N.R.C.D. 90 has the same status as a court-martial convened under Act 105 and since courts-martial have always been inferior courts to the High Court, it follows that any military tribunal set up under N.R.C.D. 90 is also inferior to the High Court. Consequently, I hold that the High Court has jurisdiction of general superintendence over the said special military tribunal, and this jurisdiction is exercisable by means of prerogative writs.

In Constitutional Law by Wade and Phillips (8th ed.), the learned editors, at p. 404 stated as follows:

“Courts-martial are limited to the powers conferred on them by statute. For an unlawful act done by such a court or by a military officer exercising his summary powers under the Army Act, the person injured has his remedy in the High Court. An excess of jurisdiction may be questioned by application to the Divisional Court of the Queen’s Bench Division for the writ of habeas corpus or an order of certiorari or prohibition.

There is no doubt that certiorari lies, at the discretion of the High Court, to control the limits of the jurisdiction of a court-martial, just as it lies to control all inferior courts which are shown to have exceeded their jurisdiction.”

(The emphasis is mine.)

Thus, unless otherwise provided by an enactment, an excess of jurisdiction by any military tribunal may be questioned by an application to the High Court for an order of certiorari. The second contention of the D.P.P. is that even if it is held that the said special military tribunal is an inferior court to the High Court, the High Court cannot exercise supervisory jurisdiction over it in view of the provisions of section 4 (7) of N.R.C.D. 90. This subsection provides that, “The decision of a Military Tribunal appointed under this section shall be final and no appeal shall lie from such a decision.” It was further submitted by the D.P.P. that apart from section 4 (7) of N.R.C.D. 90, the supervisory jurisdiction of the High Court is ousted by section 20 of the Courts Act, 1971 (Act 372), so far as military tribunals or courts are concerned.

Learned counsel for the applicants, in his reply, argued that section 4 (7) excludes only appeals against the decisions of that tribunal. Counsel submitted that what is before the court is not an appeal, but an application for certiorari, and the finality given to the decision of that military tribunal by the said section 4 (7) cannot prevent the High Court from entertaining an application for certiorari. Learned counsel relied on the case of Republic v. Tekperbiawe Divisional Council; Ex parte Nene Korle II [1972] 1 G.L.R. 199. He also referred to In re Mansergh (1861) 1 B. & S. 400 and R. v. Secretary of State for War; Ex parte Price [1949] 1 K. B. 1, D.C.

[p.235] of [1973] 2 GLR 227 In respect of the objection based on section 20 of Act 372, learned counsel for the applicants contended that the ouster clause in the said section 20 should be declared null and void pro tanto, because it is in conflict with article 114 of the suspended Constitution. Counsel further relied on a number of cases some of which will be referred to in due course.

I will deal first with the objection founded on section 4 (7) of N.R.C.D. 90 I think the objection of the D.P.P. may be valid if the words “no appeal” in the said section 4 (7) can be construed to include “no application for prerogative writs.” But it seems to me that the provisions of that section cannot be stretched that far. Statutory provisions which seek to take away a subject’s right of appeal or which seek to oust the ordinary jurisdiction of the court must be construed strictly. So that if such provisions are reasonably capable of having two meanings, that meaning which preserves the ordinary jurisdiction of the court should be taken. Section 4 (7), of N.R.C.D. 90 was, in my view, intended to prohibit appeals only, and the said prohibition was not intended to extend to applications for prerogative writs.

I therefore hold that the words “shall be final and no appeal shall lie from such a decision” in section 4 (7) of N.R.C.D. 90 are not sufficient to exclude an application for certiorari. The said section is not concerned with and is certainly not prohibitive of applications for certiorari which are not appeals. I may here reiterate what I said in the case of Republic v. Tekperbiawe Divisional Council; Ex parte Nene Korle II (supra), which learned counsel for the applicants referred to in his argument. At p. 205 of the report, I said:

“Whenever a person is empowered by an enactment to exercise judicial or quasi-judicial functions in any matters, his exercise of those functions is within the scope of certiorari and prohibition at common law; and the enactment entrusting him with such functions should not be construed as having outsed the common law supervisory jurisdiction of the High Court, unless the enactment concerned clearly says so.”

Indeed, a strong leaning has existed, for years, against construing statutes so far as to oust or restrict the supervisory jurisdiction of the High Court over inferior courts. The courts have at times even gone so far as to hold that enactments which expressly provide that proceedings of an inferior court shall not be removed by certiorari to the High Court have no application when the inferior court has over-stepped the limits of its jurisdiction. Ex parte Bradlaugh (1878) 3 Q.B.D. 509 is a leading case on this proposition. In that case Cockburn C.J. at p. 513, said:

“ . . . I am clearly of the opinion that the section does not apply when the application for the certiorari is on the ground that the inferior tribunal has exceeded the limits of its jurisdiction.” In the same case, and at the same page, Mellor J. expressed his view in the following manner:

[p.236] of [1973] 2 GLR 227

“It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction . The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question.”

Another interesting case is that of Campbell v. Brown (1829) 3 Wils. & Sh. 441, H.L. (Sc.), where the House of Lords upheld a decision of the Lord Ordinary that although by the statute 43 Geo. III, c. 54, s. 21, the judgment of the Presbytery is declared to be final without appeal to or review by the court, civil or ecclesiastical, yet if the proceedings upon which the judgment was pronounced were contrary to law or if the court exceeded the powers committed to it by statute, they may be reversed and set aside by the court. See also the more recent cases of R. v. Worthington-Evans; Ex parte Madan [1959] 2 W.L.R. 908, D.C., R. v. Hurst; Ex parte Smith [1960] 2 Q.B. 133 at p. 142, per Lord Parker C.J. and Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147, H.L. cited by counsel for the applicants.

It may be noted that the decision in the Anisminc case (supra) shows the extraordinary ability and the determination of the courts to interpret ouster clauses in statutes in such a way as to maintain the possibility of judicial review. In that case the plaintiffs, an English company, owned property in Egypt which was sequestrated, under the provisions of Proclamation No. 5 of 1956, by the Egyptian Government. In 1957, the plaintiffs sold the sequestrated property to an Egyptian organization. In 1959, the plaintiffs, who were named in Annex E within the meaning of article 1 (2) of the Foreign Compensation (Egypt) (Determination and Registration of Claims) Order, 1962, applied to the Foreign Compensation Commission, which was a judicial body responsible for distributing funds supplied by foreign governments as compensation to British subjects. The Foreign Compensation Commission rejected the plaintiffs’ application for compensation on the ground that the plaintiffs were not eligible to claim under a scheme applicable to the British subjects who had lost property in Egypt. The Foreign Compensation Act, 1950 (14 Geo. 6, c. 12), s. 4 (4) provided that, “the determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.”

The majority of the House of Lords held, inter alia, that section 4 (4) of the Foreign Compensation Act, 1950, did not bar a court from inquiring whether the commission had made, in law, a correct decision on the question of eligibility to claim. It was also held that the word “determination” in the section meant a real determination, and not a purported determination; and by taking into account a factor which in the view of the House of Lords was irrelevant to the Egyptian compensation scheme, the commission’s decision was a nullity. Lord Reid in the course of his judgment, at p. 170, said:

[p.237] of [1973] 2 GLR 227

“It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly – meaning, I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court:”

Lord Wilberforce, at p. 208, stated the principle in the following terms:

“The courts, when they decide that a ‘decision’ is a ‘nullity’, are not disregarding the preclusive clause. For, just as it is their duty to attribute autonomy of decision of action to the tribunal within the designated area, so, as the counterpart of this autonomy, they must ensure that the limits of that area which have been laid down are observed (see the formulation of Lord Sumner in Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128, 156). In each task they are carrying out the intention of the legislature, and it would be misdescription to state it in terms of a struggle between the courts and the executive. What would be the purpose of defining by statute the limit of a tribunal’s powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed?”

It is therefore well established that it is only by an exceptionally strongly worded formula that the legislature can effectively deprive the High Court of its supervisory jurisdiction over inferior tribunals. Thus if section 4 (7) of the N.R.C.D. 90 had gone further and provided that no decision of the said military tribunal shall by means of prerogative writs or other process issuing out of court, be removed, or subjected to review or consideration on any ground whether arising out of absence of jurisdiction or nullity, defect or irregularity of proceedings, or if words of similar nature had been added to that section, the High Court would certainly have been incompetent to entertain the present application; and the authorities cited supra would also have had no application.

I will now consider the objection based on section 20 of the Courts Act, 1971 (Act 372). I think the preliminary objection raised by the learned D.P.P. is strongly supported by the said section 20 which provides that:

“The High Court of Justice shall have supervisory jurisdiction over all inferior Courts in Ghana and any adjudicating authority other than a military Court or tribunal and in the exercise of its supervisory jurisdiction shall have power to issue such directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of its supervisory powers.”

(The emphasis is mine.)

It will be recalled that article 114 of the suspended Constitution made the same provision except that the words “other than a Military Court or tribunal” were absent in that article. In other words, article 114 conferred

[p.238] of [1973] 2 GLR 227 on the High Court very wide supervisory powers over all inferior courts in the country, including military tribunals, whilst section 20 of Act 372 excluded military tribunals from the supervisory jurisdiction of the High Court. Act 372 was enacted under the authority of the suspended Constitution, and its provisions could not therefore amend, limit or take away any jurisdiction conferred by the said Constitution on the High Court. Thus the words “other than a Military Court or tribunal” in the said section 20, being clearly inconsistent with the provisions of article 114 of the Constitution, must be regarded as inoperative; and indeed they ought to be regarded as inoperative as from the date on which Act 372 came into effect: see article 1 (2) of the suspended Constitution.

In the circumstances, section 20 of Act 372 will be construed as if the words “other than a Military Court or tribunal” had not been inserted in the said section. It therefore follows that the supervisory powers of the High Court over inferior courts still extend to military tribunals, and that the purported limitation of those powers by section 20 of Act 372 is ineffective. Consequently, as at 13 January 1972, the date of the last coup, the wide supervisory powers of the High Court, as provided in article 114 of the suspended Constitution, were still in existence.

I would add that the provisions of article 114 have not been affected by the National Redemption Council (Establishment) Proclamation, 1972. The Proclamation, which came into effect on 13 January 1972, suspended the Constitution of the Second Republic. But it allowed certain provisions of the Constitution to continue in operation. Section 4 (a) of the said Proclamation, for example, provided that:

“Notwithstanding the suspension of the Constitution, and until provision is otherwise made by law:— (a) all Courts in existence immediately before the 13th day of January, 1972 shall continue in existence with the same powers, duties, functions and composition as they had immediately before that date . .

.”

(The emphasis is mine.)

By this section of the Proclamation the powers and the duties of the High Court as provided in articles 113 and 114 of the Constitution are preserved intact. It may even be argued, and quite rightly too, that all those articles of the said Constitution, which were allowed by the Proclamation to continue to operate, are incorporated in the Proclamation by reference. The Proclamation, to all intents and purposes, has taken the place of the suspended Constitution, and it may therefore be regarded as the supreme law of the land; and since article 114 of the suspended Constitution forms part and parcel of the said Proclamation, the High Court will continue to exercise wide supervisory jurisdiction over all inferior tribunals, including military tribunals, in accordance with the provisions of the said article 114, until such time that the National Redemption Council shows a contrary intention, and which intention

[p.239] of [1973] 2 GLR 227 may be expressed in a Decree. But, of course, any intention to deprive the High Court of those powers, as I have already stated, will have to be expressed in a strongly worded formula before it can be effective.

The D.P.P. finally submitted that this court has no jurisdiction to declare section 20 of Act 372 invalid. That power was exclusively vested in the erstwhile Supreme Court and now in the Court of Appeal. So that any question as to whether section 20 of Act 372 is a nullity or not ought to be referred to the Court of Appeal for determination in terms of article 106 of the suspended Constitution.

I concede that the power to make such a declaration is now reserved for the Court of Appeal. But I must point out that all that this court has done in the present case amounts only to construing the provisions of section 20 of Act 372 “with modifications” in order that full effect can be given to the provisions of article 114 of the Constitution which article, as I have held, forms part of the Proclamation. And this is within the spirit of section 29 (1) of the said Proclamation which provided that, “any enactment in existence immediately before the commencement of this Proclamation shall be construed with such modifications as may be necessary to give effect to the provisions of this Proclamation.”

Be that as it may, it was not necessary to refer that aspect of the matter to the Court of Appeal. Because on the face of the provisions of section 20 of Act 372, those words, “other than a Military Court or tribunal” are clearly and obviously repugnant to and inconsistent with the provisions of article 114 and there can be no two ways about that; and, to my mind, it would have been a sheer waste of time if the matter had been referred to the Court of Appeal. I am fortified in this view by the following dictum of Bannerman C.J. in the case of Republic v. Maikankan [1971] 2 G.L.R. 473 at p. 478, S.C.:

“We wish to comment that a lower court is not bound to refer to the Supreme Court every submission alleging as an issue the determination of a question of interpretation of the Constitution or of any other matter contained in article 106 (1) (a) or (b). If in the opinion of the lower court the answer to a submission is clear and unambiguous on the face of the provisions of the Constitution or laws of Ghana, no reference need be made since no question of interpretation arises and a person who disagrees with or is aggrieved by the ruling of the lower court has his remedy by the normal way of appeal, if he so chooses. To interpret the provisions of article 106 (2) of the Constitution in any other way may entail and encourage references to the Supreme Court of frivolous submissions, some of which may be intended to stultify proceedings or the due process of law and may lead to delays such as may in fact amount to denial of justice. In this connection we fully endorse the decision of the Court of Appeal sitting as the Supreme Court in the case of Awoonor-Williams v. Gbedemah, Supreme Court, 8 December 1969, unreported; digested in (1970) C.C. 18 and of Tait v. Ghana Airways Corporation, Supreme Court, 29 July 1970, unreported.”

[p.240] of [1973] 2 GLR 227

(The emphasis is mine.)

In the case of Republic v. Boateng; Ex parte Adu-Gyamfi II [1972]1 G.L.R. 317, where there was an application for prohibition and injunction, my learned brother Hayfron-Benjamin J., in the course of hearing the said application, was faced with almost a similar situation. The High Court, by virtue of articles 102 (2) and 113 of the Constitution,1969, is vested with original jurisdiction in all matters. By the provisions of section 52 of the Courts Act, 1971 (Act 372), the High Court is prohibited from entertaining either at first instance or on appeal any cause or matter affecting chieftaincy. That is, the provisions of section 52 of Act 372 purported to limit the original jurisdiction of the High Court which was conferred on it by articles 102 (2) and 113 of the Constitution. The question therefore was which of these provisions should prevail or was enforceable.

The senior state attorney, who appeared in that case, on behalf of the Attorney-General, ably contended, among other things, that as a question relating to the enforcement or interpretation of the Constitution was involved in the determination of the application, the jurisdiction of the High Court was ousted and that the question should be referred to the Supreme Court for determination. In refusing to refer the matter to the Supreme Court, Hayfron-Benjamin J. said at p. 331 that:

“Furthermore the process of decision making is to apply a rule of law to the facts as found by the tribunal. In ascertaining what rule is applicable the court or judge would determine its validity albeit sub silentio by reference to article 1 (2) of the Constitution, i.e. the judge would determine whether the rule of law to be applied is in conformity with the provisions of the Constitution; for if it is contrary to the Constitution it ceases to be a rule of law; it is void and of no effect and cannot and ought not to be applied to any case. If it is suggested that every such exercise, which takes place in every case, sometimes several times in one case, is an interpretation or enforcement of the Constitution, then every time a court finds a rule of law it must refer it to the Supreme Court for determination as to its validity. Such a procedure was frowned upon by the Supreme Court itself . . .”

I am therefore convinced that I have acted on sound principles in refusing to refer the matter to the Court of Appeal, especially in the light of the dictum of Bannerman C.J. in the case of the Republic v. Maikankan (supra).

As I have already held, the High Court, as the law now stands, can exercise supervisory jurisdiction over all military courts or tribunals, including those set up under N.R.C.D. 90, and it can therefore interfere where the said tribunals have acted without or in excess of jurisdiction. I must, however, make it clear that the High Court will only interfere where the civil rights of the person concerned are affected but will not

[p.241] of [1973] 2 GLR 227 interfere in matters affecting military status or matters of military law, regulation or procedure: see In re Mansergh (1861) 1 B. & S. 400 at pp. 406-407, where Cockburn C.J. said:

“I quite agree that where the civil rights of a person in military service are affected by the judgment of a military tribunal, in pronouncing which the tribunal has either acted without jurisdiction or has exceeded the jurisdiction, this Court ought to interfere to protect those civil rights: e.g. where the rights of life, liberty or property are involved, although I do not know whether the latter case could occur. Here, however, there was nothing of the sort, and the only matter involved was the military status of the applicant – a thing which depends entirely on the Crown, seeing that every person who enters into military service engages to be entirely at the will and pleasure of the Sovereign.”

I may also mention the case of R. v. Secretary of State for War; Ex parte Martyn [1949] 1 All E.R. 242, D.C. In that case, Lord Goddard C.J. made a similar pronouncement. The learned Chief Justice, who read the unanimous judgment of the court, said at p. 243:

“Once it is conceded, as it has been in this case, that he was a soldier, a court-martial had jurisdiction to try him. If the court-martial in the present case has not observed the proper rules of procedure, that is a matter for the convening officer, and, if necessary, the Judge Advocate-General to deal with, but it is not a matter for this court, which can only interfere with military courts and matters of military law in so far as the civil rights of the soldier or other person with whom they deal may be affected.”

(The emphasis is mine.)

For the above reasons, I have come to the conclusion that the High Court has jurisdiction to entertain the present application. In the circumstances, the preliminary objection will be and is hereby overruled. The application will now be heard on its merits.

DECISION

Preliminary objection overruled.

S.Y.B.B.