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IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, GHANA IN ACCRA ON MONDAY THE 12TH DAY OF OCTOBER, 2016 BEFORE HER LADYSHIP DORIS BEMPONG (MRS. ) HIGH COURT JUDGE  
SUIT NO. BMISC 402/2013  
ABI/KOFI OWUSU BOATENG TEMA, NEWTOWN      : PLAINTIFF              VRS:  
1. THE CHIEF OF DEFENCE STAFF 2. THE ATTORNEY-GENERAL    :   DEFENDANTS 

Plaintiff’s claim in this matter against the Defendant which was filed on 22/2/2013 is for: 1. A declaration that the circumstances surrounding the decision to release the Plaintiff from the Ghana Armed Forces were most unfair since he was very innocent and therefore, his discharge was wrongful.  
2. A further declaration that after having detained the Plaintiff for the alleged offence for three months, the decision to release him amounted to double jeopardy and therefore unconstitutional.   
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3. General damages for the wrongful release from the Ghana Armed Forces.  
4. Cost.  
Plaintiff was enlisted in the Ghana Armed Forces on 27/1/2006 and was posted to the Ghana Navy where he served until his release from the Armed Forces in August 2012.   
The release, according to Plaintiff was based on an allegation that he did not properly account for a weapon that was released him for duty. He claimed that despite his innocence, he was tried and detained in custody for 90 days. He was subsequently released from the Armed Forces and this the Plaintiff claim amounts to punishing him twice for the same offence. The Plaintiff says that this is double jeopardy and it sins against the constitution.   
The Defendants filed a Statement of Defence which they subsequently amended to say that the Plaintiff was not entitled to any of the reliefs being sought in his Statement of Claim.  
According to Defendants, the Plaintiff was indeed enlisted in the Army and posted to the Navy and was based at the Naval Base, Tema as an armourer.  
According to Defendants, on 27/3/12, Command of the Naval Base, Tema, received a signal from the Naval Headquarters that an M16 Carbine Rifle with serial number, A00057681 had been received from some armed robbers by the police and the inscription on the rifle showed that it belonged to the Naval Base, Tema. A Search was conducted in the armoury and temporal log books of the base. 
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The Search revealed that even though the rifle had been signed off as returned, it was not physically present in the armoury.  
The base ordered an investigation which revealed that the last person to have signed for the rifle was the Plaintiff herein on the 27/2/2012. The “sign-off” column of the temporal log book however had a different signature from the one in the “sign in” column. Further checks indicated that the signature in the sign off column belong to DW2, OS BAAH.  
It is the case of the Defendant that a Board of Inquiry was consequently constituted with the main mandate to find out the circumstances that led to the disappearance of the rifle and the culprit.  
Upon completion of its work, the Board of Inquiry determined that the Plaintiff and the armourer on duty on the day in question i.e. One AB ALISI should be held responsible for the disappearance of the rifle and to be duly punished.   
A Disciplinary Committee was set up and it recommendation the charging and trial of the two officers with 2 counts of the offence of negligence to the prejudice of good order and discipline contrary to section 54 of the Armed Forces Act 1962 (Act 105).  
The Plaintiff was tried by a Disciplinary Committee and found guilty on both counts and was sentenced to 90 days detention which he served.  
According to the Defendant, the Ghana Armed Forces, the employer of the Plaintiff upon considering the circumstances surrounding the incident and the magnitude of the offence for which 
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Plaintiff had been found guilty, took a decision to release the Plaintiff from the service. The employer was of the opinion that it was in the best interest of the Armed Forces since the Plaintiff’s position as an armourer was a sensitive one and if he couldn’t be trusted to properly account for a single rifle, he could not be trusted with a full armoury filled with firearms.  
This decision they said was an administrative one and not a punitive measure. His release came with his due benefits being paid to him.  
At the close of pleadings, the issues set down for determination were: i.  Whether or not the Plaintiff was duly tried by the Armed Forces. ii. Whether or not the release of the Plaintiff from the Armed Forces amounted to double jeopardy. iii. Whether or not indeed Plaintiff committed an offence. iv. Any other relief arising from the pleadings.  
The Armed Forces Act 1962 (Act 105) mandates the Armed Forces to investigate and prosecute any of its employees for offences committed under the Act and in accordance with due process.  
From the pleadings of both parties, when the disappearance of the M16 rifle was detected, investigation were conducted and a Board of Inquiry set up to go into the matter. Upon the completion of the work of the Board of Inquiry, a disciplinary Committee was set up with the mandate of trying the Plaintiff and one AB1 Alisi, who were believed to be responsible for the said disappearance of the rifle.  
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Indeed, the Plaintiff was tried, found guilty and sentenced to a 90 day detention. A sentence which the Plaintiff served. Plaintiff did not appeal against the conviction and sentence and did not question the authority of the Armed Forces to try him.  
It is worthy to note that the Plaintiff was charged under section 54 of the Armed forces Act 105. Section 54(1) provides that: “Any act, disorder or neglect to the prejudice of good order and discipline shall be an offence and any person convicted thereof shall be liable to dismissal with disgrace from the Armed Forces or to any less punishment provided by this Act”.  
Subsection(3) of section 54 goes further to describe what constitutes an act conduct, disorder or neglect to the prejudice of good order and discipline as follows: (3)  An act or omission constituting an offence under section 13 or          a contravention by a person of; (a)    Any provision at this Act. (b)    Any regulations published for the general information and           guidance of the Armed Forces to which that person belongs or            to which he is attached or seconded; or  (c) Any general, garrison, unit, section, standing, local or other orders, shall be an act, conduct disorder or neglect to the “prejudice of good order and discipline”.  
In the Court’s view, all due processes were followed in the investigation, trial and conviction of the Plaintiff and conviction of the Plaintiff that cannot be faulted.  
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The military did what it had power to do and judiciously too. The summary trial was in conformity with the provisions of Act 105 as amended by Armed Forces Law 1983, specifically section 63(1) which provides for the constitution of the disciplinary committee. He was therefore properly tried and convicted.   
The Plaintiff as part of his claim wishes the court to declare that his subsequent release for the Armed Forces was most unfair and amounts to double jeopardy.  
The criminal code 1960 Act 29 at section 9 provides that; “A person cannot be punished twice for the same offence”.  
It is not the law that he cannot be punished twice for the same act.  The legal principle of double jeopardy is one that has been established as a common law principle that ensures that a person must not be punished or vexed twice for the same wrong doing.  The principle of double jeopardy may avail a person where an attempt is made to prosecute a person for an offence for which he has already been prosecuted and either found guilty or acquitted. The person must have been through the rigors of a prosecution on which final judgment has been passed.   
In the case of REPUBLIC VRS: THOMAS (1950) 33 CR APPL R. 200: HUMPHERY J stated: “It is not the law that a person shall not be punished twice for the same act. No one has ever said so. In any case, the Interpretations Act does not say so. What the Act says is that a person shall not be liable to be punished twice for the same offence.”  
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The dictum was quoted in the Ghanaian case of ABABIO VRS: REPUBLICE (1972) 1 GLR @ 344.  
The elements to look out for in double jeopardy is for there to have been a legitimate prosecution which was final. Therefore, where a person has undergone the ordeal of a trial at which a verdict has been pronounced by a court of competent jurisdiction, whether found guilty or not should not be vexed by another trial but left undisturbed to lead a normal life.  
In the present case, the Plaintiff was charged with 2 counts of the offence of conduct to the good order and discipline contrary to section 54 of the Armed Forces Act 105 and was duly tried by the Disciplinary Board which found him guilty and sentenced him accordingly.  
The Armed Force considering the gravity of the circumstances surrounding the whole incident and the offence were of the view that it was not in their best interest of maintaining order and discipline within the ranks to release the Plaintiff.  
I am also of the opinion that given his position as an armourer, his employers must be certain of the utmost discipline and trustworthiness of their employee. Where they are not sure that they can completely trust the employee, they have every right to terminate his employment with full benefits.  
This release or discharge from the Army is only an administrative action and does not carry any sanctions. The Plaintiff was released and paid his entitlements/gratuity in full in accordance with article 206. 85 of the Armed Forces Regulations 1970 (C.I. 12. 
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If the Armed Forces had intended to punish the Plaintiff, they would have dismissed him summarily without any gratuity. In the light of the foregoing this Court is of the view that the Plaintiff has not been able to adequately prove his case against the Defendants and that the claims against the Defendants are (UNMERITUOUS).  
The claims of the Plaintiff are therefore dismissed and judgment is entered for the Defendants. No Order is made as to costs.  
Parties:   Plaintiff absent.       Defendant present   
Counsel: Augustine Asafo Adjei for Respondent present.       Cynthia Ofori for the Defendant.   
  H/L DORIS BEMPONG MRS. JUSTICE OF THE HIGH COURT                              
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