REPUBLIC v. GENERAL COURT MARTIAL; EX PARTE MENSAH

JUDGMENT OF JIAGGE J.A.

The appellant was tried summarily by a disciplinary service tribunal and was convicted on two counts of fraudulent misapplication of property contrary to section 52 (1) (a) of the Armed Forces Act, 1962 (Act 105). He was convicted also on one count of unauthorised use of a vehicle of the Armed Forces contrary to section 50 (a) of the same Act. His sentence was "dismissal with disgrace from the Armed Forces" and this was conveyed to him in a letter dated 28 May 1973. On 8 June 1973 the appellant petitioned the Head of State and Chairman of the National Redemption Council on the severity of his sentence and pleaded for clemency. The reply to the petition indicated that the matter had been thoroughly looked into and that the final outcome would be communicated to the appellant. Three or four months later, the appellant received a letter signed by the Military Secretary, Ministry of Defence and dated 3 August 1973, informing him that he had been reinstated in the Army with effect from 7 June 1973, the day of his dismissal. No reasons were given for the reinstatement but the appellant had all his entitlements paid to him retrospectively from the time of his dismissal.

On 16 January 1974 the appellant was re-arrested, charged and put on trial before the General Court Martial for conduct to the prejudice of good order and discipline contrary to section 54 (1) of the Armed Forces Act, 1962 (Act 105). The appellant entered a plea of autrefois convict but this was rejected by the General Court Martial. The appellant then applied to the High Court for an order of prohibition to stop the proceedings before the General Court Martial. The High Court by its decision reported in [1974] 1 G.L.R. 355 ruled against him and he has now appealed against the ruling of the High Court.

In opposing the application for an order of prohibition in the High Court, counsel for the respondent contended that the charges on which the applicant was convicted at the first trial were different from the charge preferred against him in the second trial; that the charges were mutually exclusive and that since the applicant at the first trial could not have been convicted of the offence involved in the second trial, the plea of autrefois convict must fail. Counsel contended further that even if the charges at both trials were practically the same, the mere fact that the applicant was being tried again was enough for a proper inference to be drawn that the first trial