REPUBLIC v. MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH

JUDGMENT OF APALOO J.A

He delivered the judgment of the court. The appellants are two of nine persons convicted by a military tribunal established under the Subversion Decree, 1972 (N.R.C.D. 90), on 13 November 1972, of three counts each of conspiracy to commit subversion, subversion and concealment of subversion. They were each sentenced in accordance with section 2 (a) of that Decree to suffer death "by shooting by firing squad." That sentence has since been commuted by executive clemency to one of life imprisonment. It seems clear that the appellants were aggrieved by their convictions and had it been possible for them to do so, would have questioned them on appeal. But section 4 (7) of that Decree disables them from so doing as it provides that the decision of the military tribunal "shall be final and no appeal shall lie from such decision."

As the Decree denied them a right of appeal, they resorted to the supervisory jurisdiction of the High Court to question at least one of the counts on which they were convicted, namely, conspiracy to commit subversion. The appellants' basic position was that no such offence was created by the law under which they were convicted, namely, N.R.C.D. 90 and accordingly, they invited the court to quash their convictions on that count. They conceded, as indeed they could not dispute, that the counts of subversion and concealment of subversion were proper charges and were properly laid but they said by joining proper legal charges to non-existent ones, a great deal of evidence which would otherwise have been inadmissible, was let in and the misjoinder was such as to occasion them a denial of natural justice.

The appellants obtained leave of the High Court for the issue of an order of certiorari to quash the convictions. When notice of this order was served on the respondents, they sought to persuade the court that it had no jurisdiction to entertain the application which sought to question the decision of a military tribunal inasmuch as it was not an inferior court. The appellants contended that it was and was as such, amenable to the supervisory jurisdiction of the court and its orders, could, in appropriate cases, be vacated by the writ of certiorari. This issue was the subject of preliminary argument before Abban J. on 28 May 1973. On 13 June 1973, the court delivered a reasoned ruling reported in [1973] 2 G.L.R. 227 in which it rejected the respondents' preliminary objection and held that the court was cl