REPUBLIC vs. MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH AND ANOTHER (NO. 2) [1973] 2 GLR 445

CASES REFERRED TO

(1) Colquhoun v. Brooks (1888) 21 Q.B.D. 52; 57 L.J.Q.B. 439; 59 L.T. 661; 52 J.P. 645, C.A.

(2) Dean v. Wiesengrund [1955] 2 Q.B. 120; [1955] 2 W.L.R. 1171; 99 S.J. 369; [1955] 2 All E.R.

432, C.A.

(3) Thomas Conservators v. Smeed [1897] 2 Q. B. 334.

NATURE OF PROCEEDINGS

APPLICATION for an order of certiorari to quash the conviction of the applicants by a military tribunal convened under N.R.C.D. 90, for lack of jurisdiction to try them for conspiracy to commit subversion under Act 29.

COUNSEL

W. A. N. Adumua-Bossman (with him K. Atta-Caesar, N. Y. Agbesi,

W. F. Sawyerr and E. V. O. Danquah) for the applicants.

E. N. Moore, Attorney-General, (with him Dr. S. K. B. Asante, Solicitor-General, Gyeke-Dako, Director of Public Prosecutions and Major Johnson, State Attorney) for the respondent.

JUDGMENT OF ABBAN J.

The application was heard on its merits and dismissed on 20 July but reasons were reserved. Due to the long legal vacation the court could not give the reasons earlier as it had wished.

Originally, the applicants, in their affidavits, based themselves on two grounds, first, error on the face of the record and secondly, lack of jurisdiction to try them on a charge of conspiracy to commit subversion. For reasons which I have not been able to appreciate, learned counsel for the applicants did not pursue the first ground, but concentrated only on the second ground.

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The main burden of the contention of learned counsel was that the offence of conspiracy to overthrow the government by unlawful means is non-existent in section 1 (a) of the Subversion Decree, 1972 (N.R.C.D. 90), under which the applicants were charged. It is only in section 1 (f) of the said Decree that express mention was made of the offence of conspiracy, and even so, the applicants were not charged with conspiracy under the said section 1 (f) Counsel therefore submitted that since the military tribunal convened under N.R.C.D. 90 can only try offences created by that Decree, it had no jurisdiction to try the applicants on a charge of conspiracy to commit subversion which is not an offence under the Decree neither is it an offence under the Criminal Code, 1960 (Act 29).

Learned counsel further argued that the Criminal Code, 1960 (Act 29), applies to civilians only, and has no application where service men are concerned; and even though N.R.C.D. 90 applies to civilians as well as to service men, a person cannot be charged under the Criminal Code, 1960, and at the same time under N.R.C.D. 90. A choice has to be made by the Attorney-General under section 4 (2) of the Decree, and if a decision is made to charge under the Decree, the trial should proceed under the Armed Forces Act, 1962 (Act 105), and under the Armed Forces Regulations, 1970 (C.I. 12). But if a charge is brought under the Criminal Code, 1960 (Act 29), the procedure should be as prescribed in section 1 of the Criminal Procedure Code, 1960 (Act 30). Counsel therefore submitted that it was wrong on the part of the prosecution to charge the applicants herein with conspiracy under the Criminal Code and then use the procedure provided by the said Act 105 and C.I. 12.

Counsel also contended that since the Criminal Code, 1960 (Act 29), was not made part of N.R.C.D. 90, the tribunal had no jurisdiction to entertain the charge of conspiracy that was laid under the Criminal Code, 1960 (Act 29). He argued that section 6 (1) of N.R.C.D. 90 provided that Act 105 should be applicable, but it failed to make mention of the Criminal Code, 1960, and this is a clear indication that the legislature intended to exclude the Criminal Code, 1960, entirely from the operation of the Decree.

Counsel seriously submitted that this is a proper case to apply the maxim expressio unius est exclusio alterius in construing the provisions of the Decree, and in any case the maxim should be applied in respect of section 1 (a). Because, the legislature by making conspiracy to kill an offence in section 1 (f) of the Decree, and omitting to make it an offence in section 1 (a) has shown a clear intention to exclude conspiracy to commit subversion from the Decree.

The learned Attorney-General in his reply contended that the military tribunal had jurisdiction to try charges brought under the Criminal Code, 1960 (Act 29). He argued that section 6 (1) of N.R.C.D. 90 incorporated the provisions of the Armed Forces Act, 1962 (Act 105), which provisions deal with substantive as well as with procedural matters, and by virtue of section 77 (1)(a) of the said Act 105 all acts which are offences under the Criminal Code, 1960, are also offences under Act 105; and since Act 105 forms part of N.R.C.D. 90, the tribunal could try any offence under the

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Criminal Code, 1960. Consequently, the tribunal had jurisdiction to try the applicants for the offence of conspiracy under section 23 (1) of the Criminal Code, 1960. It was the further contention of the learned Attorney-General that in view of section 5 of the Criminal Code, 1960, the offence of conspiracy is applicable to all offences created under any enactment and this is reinforced by section 24 (2) of the said Code. Thus, submitted learned Attorney-General, reading sections 5, 24 (2) and 23 (1) of the Criminal Code, 1960, together, the court should hold that the military tribunal had jurisdiction to try the applicants on the conspiracy charge.

It was again argued by the learned Attorney-General that the offence of conspiracy is basic to criminal law and to any scheme designed to safe-guard the security of the state; and for the offence of conspiracy to be excluded from N.R.C.D. 90 (an enactment designed to ensure the security of the state) it is incumbent on the applicants to adduce overwhelming evidence of legislative intent to that effect. He therefore submitted that it was not necessary to spell out the offence of conspiracy in section 1 (a) of N.R.C.D. 90. He referred to section 180 (a) and (b) of the Criminal Code, 1960, and contended that the section is identical with section 1 (a) and (b) of N.R.C.D. 90, and that it was inconceivable for the legislature to create the offence of subversion under section 1 (a) of the Decree without necessarily importing the offence of conspiracy; and since the applicants have not been able to show that the omission to make mention of conspiracy in section 1 (a) of N.R.C.D. 90 was intended to exclude conspiracy from the said section, the maxim expressio unius est exclusio alterius has no application, and should therefore not be invoked. The learned Attorney-General then relied on certain cases to support his contention.

I think these are the main arguments presented to the court for consideration. Since learned counsel for the applicants, as I have said before, abandoned the ground based on error on the face of the record, I have also refrained from commenting on the said ground, and my ruling has therefore been based solely on the arguments set out above.

It appears three counts were preferred against the applicants, namely, (1) conspiracy to commit subversion, contrary to section 23 (1) of the Criminal Code, 1960 (Act 29); (2) subversion, contrary to section 1 (a) of N.R.C.D. 90; and (3) concealment of subversion, contrary to section 3 of N.R.C.D. 90.

The applicants concede that counts (2) and (3) were properly laid and that the military tribunal had jurisdiction to try them on those counts. The quarrel is with count (1)—conspiracy to commit subversion. Section 1 (a) of N.R.C.D. 90 provided that a person shall be guilty of the offence of subversion if he “prepares or endeavours to overthrow the Government by unlawful means.” The most important issue here is whether the applicants could be charged with conspiracy to commit such an offence when N.R.C.D. 90 itself did not create the offence of conspiracy to commit subversion. I think the answer is yes.

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There is no legislative intent in N.R.C.D. 90 to exclude the operation of the Criminal Code, 1960. The words, “Notwithstanding any law to the contrary,” which precede section 1 of the Decree, were not intended to exclude any particular enactment. All that they meant, in my view, is that even if the conduct, the acts or the omissions listed under the said section 1 may not be regarded as offences under the existing law, they should, nevertheless, be regarded as offences and punishable under the said Decree.

N.R.C.D. 90 consists of eight sections and all these sections must be read together. Section 4 (2) of the Decree provides that:

“Where any person does any act which constitutes an offence under this Decree as well as under any other enactment the Attorney-General may direct in writing that he shall be proceeded against and tried under the other enactment and such direction shall have effect accordingly.”

(The emphasis is mine). The words may direct in writing, in my opinion, were not intended to be mandatory. They mean may or may not direct in writing. The Attorney-General has a discretion to decide whether to give the direction and whether the direction should be given verbally or in writing, or he may choose not to give any direction. It is only after he has exercised the discretion and given the direction (either verbally or in writing), that it becomes imperative that the accused should be proceeded against according to the terms of the said direction.

Again, there is nothing in the said section 4 (2) which says that if the Attorney-General decides that the accused should be proceeded against under N.R.C.D. 90, the trial should not proceed in accordance with the procedure laid down in the Criminal Code, 1960. Section 4 (2), like any other section of the Decree, must be read together with section 6. Section 6 of the Decree adopts the provisions of the Armed Forces Act, 1962 (Act 105), and empowers the military tribunal to apply the procedure normally followed by a service 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).”

It will be noticed that section 6 of the Decree did not mention the Criminal Code, 1960 (Act 29), as rightly contended by learned counsel

[p.451] of [1973] 2 GLR 445 for the applicants. All the same the omission to make express mention of the Criminal Code, 1960, does not mean that the intention of the legislature was to exclude the said Code from the operation of the Decree. As will be seen shortly, the mention of the Armed Forces Act, 1962 (Act 105), in section 6 was enough to let in, not only the Armed Forces Regulations, 1970 (C.I. 12), but also the Criminal Code, 1960. Because of this section 6, the provisions of the Decree will have to be read as if Act 105 forms part of the Decree, and where there is a conflict between any of the provisions of the two enactments (Act 105 and N.R.C.D. 90), the provisions of the Decree will prevail. It is therefore obvious that without Act 105, N.R.C.D. 90 is not complete. Furthermore, by virtue of section 6, the military tribunal appointed under the Decree has the status of, and all the powers possessed by, a service tribunal convened under Act 105; and in hearing cases the military tribunal is at liberty to adopt the regulations and the procedure usually followed by a service tribunal.

What then are the regulations and the procedure which a service tribunal follows when hearing cases? Section 75 of Act 105 provides the answer. The section reads as follows:

“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.”

(The emphasis is mine) In section 98 of Act 105, a civil court has been defined as “a court of ordinary criminal jurisdiction in Ghana and includes a Court of summary jurisdiction.” The courts of criminal jurisdiction apply the Criminal Code, 1960, and the Criminal Procedure Code, 1960 (Act 30), in dealing with criminal matters or offences. It is therefore plain that a service tribunal does not only resort to C.I.12, but also to the provisions of the Criminal Code, 1960, for the effective discharge of its functions. If a service tribunal by virtue of section 75 of Act 105 applies the provisions of the Criminal Code, 1960, and if by virtue of section 6 of N.R.C.D. 90 the military tribunal is in duty bound to apply the same rules and procedure as observed by a service tribunal, then it follows that it is within the competency of the said military tribunal also to apply both the provisions of the Criminal Code, 1960, and C.I.12 when dealing with cases brought before it.

Another section of Act 105 which clearly incorporates the provisions of the Criminal Code, 1960, in Act 105 is section 77 (1)(a). The said section 77 (1) (a) provides that any act or omission which takes place in Ghana and is punishable by a civil court (i.e. a court of criminal jurisdiction) or under any other enactment is an offence within the meaning of Act 105. In other words, it is the Criminal Code, 1960, and other enactment which a service tribunal must refer to in order to find out whether any particular conduct or omission is an offence or is punishable. The implication here is that all offences created under the Criminal Code,

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1960, and in fact all the provisions of the Criminal Code, 1960, are considered as part and parcel of Act 105. In that regard, it is right to say that the provisions of the Criminal Code, 1960 are incorporated in Act 105 by reference.

The legislature before publishing N.R.C.D. 90 must have been mindful of the real state of the law. Indeed, it was supposed to be aware of the fact that by virtue of sections 75 and 77 (1)(a) of Act 105, the provisions of the Criminal Code, 1960, and the Criminal Procedure Code, 1960, apart from those of C.I. 12, are regarded as forming part of Act 105, and that by making Act 105 applicable to N.R.C.D. 90 would involve the application of the provisions of the Criminal Code, 1960, as well as those of C.I. 12 by the military tribunal. Surely, if the legislature had had the intention of excluding the provisions of the Criminal Code, 1960, and of C.I. 12 from N.R.C.D. 90, it would rather have expressly said so in the said section 6 of the Decree, and would not have adopted Act 105, as it were, in specie and then provided that the Decree should be “construed ‘as one with” Act 105. I find it difficult to believe that the legislature intended to exclude the Criminal Code, 1960, and C.I. 12 from N.R.C.D. 90 when it knew perfectly that Act 105 itself, as I have already said, is not complete without these two enactments. In the circumstances, I hold that, quite contrary to the submissions of learned counsel for the applicants, the legislature, by not specifically excluding the Criminal Code, 1960, and C.I. 12 from the Decree when adopting Act 105, was indicating that it intended that the military tribunal convened under the Decree should resort to the Criminal Code, 1960, and C.I. 12 and apply their provisions whenever the occasion demanded.

Learned counsel for the applicants, half-heartedly, argued that the preamble to Act 105 shows that Act 105 was not intended to apply to civilians as well as to military men, but it was intended to apply to military men only. I do not seem to appreciate the purpose of this argument. In any case, that argument is defeated by section 6 (1) of the Decree which, in effect, empowers this particular military tribunal to apply the provisions of Act 105 to “any person (whether a civilian or not).”

Having held that the military tribunal could apply and proceed under the provisions of the Criminal Code, 1960, I will now consider whether there are any provisions in the Criminal Code, 1960, which permitted the prosecution to charge the applicants with conspiracy to overthrow the government by unlawful means, which act or conduct is called subversion by N.R.C.D. 90, and is called treason by the Criminal Code, 1960.

It may be said in passing, that since section 77 (1) of Act 105 was intended to give the character of service offences to all civil offences prescribed in other statutes, and for that matter in the Criminal Code, 1960, and since section 75 of Act 105 also enjoins a service tribunal to proceed in accordance with the rules and procedure observed by courts of criminal jurisdiction (and which rules and procedure are contained in the Criminal Procedure Code, 1960), nearly all charges which are brought against an accused person before a service tribunal are framed or drawn

[p.453] of [1973] 2 GLR 445 up in accordance with the Criminal Code, 1960, and with reference to the particular sections of the Criminal Code, 1960, which create the offences in question. That is, every charge sheet put before a service tribunal contains, in its statement of offence, the section of the Criminal Code, 1960, under which the accused is charged. A casual look at the Armed Forces Regulations, 1970 (C.I. 12), and especially regulation 106 (11) thereof, (which deals with preparation of charge sheets) will bear this out.

As I have held earlier on, the military tribunal, like the service tribunal, is perfectly entitled to apply the provisions of the Criminal Code, 1960, and to follow the procedure laid down in the Criminal Procedure Code, 1960. In that respect, sections 5 and 24 (2) of the Criminal Code, 1960; give the military tribunal jurisdiction to entertain a conspiracy charge. If any particular conduct is alleged to be an offence under N.R.C.D. 90, the prosecution in charging the accused with the said offence, may, in addition and in accordance with the provisions of sections 5 and 24 (2) of the Criminal Code, 1960, charge the accused with conspiracy to commit that particular offence despite the fact that conspiracy has not specifically been made an offence under the Decree.

Section 5 of the Criminal Code, 1960 (Act 29), provides that:

“Whenever under the provisions of any law for the time being in force other than this Code any offence is created, this Part shall apply, except in so far as a contrary intention appears, to the offence as it applies to offences under this Code.”

(The emphasis is mine.) It will be observed that the words “this Part” refer to Part I of the Criminal Code 1960, and sections 1 to 29 of the Criminal Code, 1960, fall under this Part I. So that if any new offence is created by any enactment then, in the absence of any contrary intention, the provisions of sections 1 to 29 of the Criminal Code, 1960, will apply to that new offence. Since the legislature did not intend to exclude the provisions of Act 29 from N.R.C.D. 90, the provisions of section 5 of Act 29, stated supra, apply to all those offences listed in section 1 of N.R.C.D. 90. Sections 23 (1) and 24 (2) as I have pointed out, fall within the ambit of section 5. It therefore follows that the provisions of these two sections apply to each and every offence created by section 1 of N.R.C.D. 90.

Sections 23 (1) and 24 (2) of the Criminal Code, 1960, provide as follows:

“23. (1) If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be.”

“24. (2) Any Court having jurisdiction to try a person for a crime shall have jurisdiction to try a person or persons charged with conspiracy to commit or abet that crime.”

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(The emphasis is mine.)

The legislature, in these two sections of the Criminal Code, 1960, has laid down general principles to be followed. In these sections the legislature has directed its attention, specifically, to the offence of conspiracy and has made special provisions for it unambiguously. These provisions are of general application and they apply to every offence created by any enactment. Consequently, by virtue of these provisions the prosecution can add a conspiracy charge to any offence, and jurisdiction is given to any court to try a conspiracy charge, so long as that court has jurisdiction to try the substantive offence on which the said conspiracy charge is based. The military tribunal established under N.R.C.D. 90 is a court of some sort, and since the said Decree did not interfere with these general provisions of the Criminal Code, 1960, and since the military tribunal had jurisdiction to try the applicants for the substantive offence of subversion under section 1 (a) of the Decree, it also had jurisdiction, by virtue of sections 23 (1) and 24 (2) of the Criminal Code, 1960, to try them on a charge of conspiracy to commit the said offence. Once the conduct called in question is regarded as an offence by some enactment, be it an Act or a Decree, the accused concerned can be charged with conspiracy to commit that offence even though the enactment creating the said offence did not expressly mention conspiracy as an offence.

It was, in the circumstances, not necessary for the legislature to incorporate the offence of conspiracy in section 1 (a) of N.R.C.D. 90. Its inclusion in the said subsection of the Decree would have been superfluous. In my view, the legislature by expressly mentioning the offence of conspiracy in section 1 (f) does not mean that it intended to exclude conspiracy from the offences created under the subsections of section 1 of the Decree. The legislature may well have thought it necessary or ex abundanti cautela desirable to include an express reference to conspiracy in section 1 (f) of the Decree, so as to leave no doubt that the punishment for conspiracy under that subsection is death; and I am not therefore disposed to applying the maxim expressio unius est exclusio alterius in a case like this. After all the maxim is no more than an aid to construction, and has very little weight where it is possible, as in the present case, to account for the expressio unius on grounds other than the intention to effect the exclusio alterius.

What is more, the application of the maxim in this particular case cannot assist the court to arrive at the true intention of the legislature. A statute should be construed so as to make sense and give meaning to every part of it, and the courts have always been guided in this function by the intention of the legislature which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and sound discretion. The application of the maxim so as to oust the Criminal Code, 1960, will make section 6 of

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N.R.C.D. 90 uncertain in its application and will lead to confusion and inconsistency because the provisions of the Criminal Code, 1960, as it has been shown, are by reference incorporated into Act 105 which has been adopted by the said section 6 of the Decree.

In Colquhoun v. Brooks (1888) 21 Q.B.D. 52 at p. 65, C.A. Lopes L.J. in refusing to apply this maxim, observed:

“I agree with what is said in the court below by Wills J. about this maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.”

The above dictum was referred to with approval by Jenkins L.J. in Dean v. Wiesengrund [1955] 2 All E.R. 432 at p. 439, C.A. On the whole, it appears N.R.C.D. 90 was loosely and hurriedly drawn up with the result that some of its provisions seem to give room for all sorts of interpretations and the maxim that “the expression of one thing is the exclusion of another” can hardly apply to such a loosely drawn up statute: See Thomas Conservators v. Smeed [1897] 2 Q.B. 334 at p. 351 per Chitty L.J. In conclusion, I hold that the applicants were properly charged with conspiracy to commit subversion, and that the military tribunal had jurisdiction to try them on the said charge.

I should also make it clear that even if I had held that the conspiracy charge was not properly laid or that the tribunal had no jurisdiction to try the conspiracy charge, that declaration would not have made any difference to the convictions based on the other two counts. Because the tribunal (and it is conceded by learned counsel for the applicants), had jurisdiction to try the applicants on those two counts. That being the case, the convictions, so far as the said two counts are concerned, are in any event valid and so are the sentences passed in respect thereof.

It was for the above reasons that the application was dismissed.

DECISION

Application dismissed.

S.E.K.