REPUBLIC v. MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH AND ANOTHER
1978
COURT OF APPEAL
GHANA
CORAM
- LASSEY
- ANIN
- FRANCOIS JJ.A
Areas of Law
- Criminal Law and Procedure
- Civil Procedure
1978
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In the Court of Appeal, Lassey J.A. delivered the judgment on an application by G K. A. Ofosu-Amaah and Charles Adu-Boateng seeking leave to apply to the full bench for review of the ordinary bench’s 26 April 1976 judgment (reported in [1976] 2 G.L.R. 5) arising from criminal convictions by a military tribunal under the Subversion Decree, 1972 (N.R.C.D. 90). The Director of Public Prosecutions raised a preliminary objection under section 4(8) of N.R.C.D. 90, as amended by S.M.C.D. 26, arguing the court lacked jurisdiction because the review would question the tribunal’s decision. The court held jurisdiction existed since “appeal” was omitted from the statute and the application sought review of the Court’s own decision. Addressing the merits, the court found conspiracy to commit subversion properly triable by the tribunal, concluded the submissions lacked substance, and refused leave, with no order as to costs.
JUDGMENT OF LASSEY J. A.
Lassey J.A. delivered the judgment of the court. These proceedings began by way of an application on behalf of G K. A. Ofosu-Amaah and Charles Adu-Boateng, seeking leave of this court to apply for a review by the full bench of the judgment of the ordinary bench given on 27 April 1976 and reported in [1976) 2 G.L.R. 5, on an appeal from the decision of the military tribunal delivered on 13 November 1972, in a criminal matter.
The applicants had been charged, tried, convicted and sentenced by a military tribunal set up by the Subversion Decree, 1972 (N.R.C.D. 90), for offences alleging conspiracy to commit subversion, subversion and concealment of subversion, contrary to the relevant provisions under N.R.C.D. 90 and the Criminal Code, 1960 (Act 29), respectively.
The applicants were dissatisfied with the decision of the military tribunal but could not appeal against the decision because there is no right of appeal given under section 4 (7) of N.R.C.D. 90 which provides that "The decision of a Military Tribunal appointed under this section shall be final and no appeal shall lie from such a decision."
The aggrieved applicants then availed themselves of the sole method or machinery for challenging the decision of the military tribunal against them. They caused a writ of certiorari to issue in the High Court, Accra, [p.328] for the purpose of quashing the proceedings that went on before the military tribunal including its decision. But they were unsuccessful. In a reasoned judgment delivered on 9 October 1973, reported in [1973] 2 G.L.R. 445, the High Court in exercise of its supervisory jurisdiction dismissed the writ.
The applicants next appealed from the judgment of the High Court to the ordinary bench of the Court of Appeal, and after hearing argument, the court dismissed the appeal on 26 April 1976.
By an application filed in the registry of this court, the applicants sought leave to apply to the full bench for a review of the previous judgment of the ordinary bench dated 26 April 1976. That judgment has been exhibited as A. It is in these circumstances that the present application filed on 20 July 1976, came before this court.
During the pendency of the application for leave, notice to raise a matter of preliminary objection to the exercise of the court's jurisdiction over the application was filed on 18 November 1976. This was not dealt with until the actual hearing of the application for leave commenced on 20 January