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HEADNOTES
The
applicant by means of an
originating notice of motion
issued the process herein
seeking among other reliefs “A
declaration that that the
respondents have breached the
Armed
Forces Act, 1962 (Act 105) and
the Armed Forces Regulations
by wrongfully releasing the
applicant from active service”
as well as certain consequential
orders. It appears from the
nature of the case put up by the
applicant and in particular the
mode by which the action was
commenced that it was planked on
the provisions of
Article
33 of the 1992 Constitution.
HELD
STATUTES
REFERRED TO IN JUDGMENT
Armed Forces
Act, 1962 (Act 105)
1992
Constitution
High Court
(Civil Procedure) Rules (CI 47)
Court of
Appeal rules, (CI 19)
Court of
Appeal Rules, LI 218,
CASES
REFERRED TO IN JUDGMENT
Akuffo-Addo v
Cathleen [1992] 1 GLR 377
Darke v Darke
[1984-86] GLR 481.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
DR. RAYMOND
ATUGUBA FOR THE
PLAINTIFF/APPELLANT.
SYLVIA ADUSU
(PSA) WITH HER GRACE MBROKOR
EWOO(SSA) AND CECIL
ADADIVOR(SSA)FORTHEDEFENDANTS/RESPONDANTS
J U D G M E N
T
GBADEGBE JSC:
On the 27th
day of July 2007, the applicant
by means of an originating
notice of motion issued the
process herein seeking among
other reliefs “A declaration
that that the respondents have
breached the Armed Forces Act,
1962 (Act 105) and the Armed
Forces Regulations by wrongfully
releasing the applicant from
active service” as well as
certain consequential orders. It
appears from the nature of the
case put up by the applicant and
in particular the mode by which
the action was commenced that it
was planked on the provisions of
Article 33 of the 1992
Constitution.
In fact in
the body of the motion paper
that originated the action
herein it was boldly inscribed
in the heading as follows:
“IN THE
MATTER OF AN APPLICATION UNDER
ARTICLE 33 OF THE 1992
CONSTITUTION AND ORDER 67 OF THE
HIGH
COURT (CIVIL PROCEDURE) RULES
(CI 47)”.
Since the
applicant based his action on
Article 33 of the 1992
Constitution, it is important
that the said provision of the
1992 Constitution on which he
relied be quoted in extenso. It
is provided in Article 33 .1 as
follows:
“Where a
person alleges that a provision
of this Constitution on the
fundamental human rights has
been, or is likely to be
contravened in relation to him,
then without prejudice to any
other action that is lawfully
available, that person may apply
to the High Court for redress.”
It appears
from the originating notice of
motion by which the instant
action was commenced in the
court below that it was brought
for the purposes of enforcing an
alleged breach of the
fundamental human rights
guaranteed to us under the 1992
Constitution. It repays in this
regard to refer to Order 67 of
the High Court (Civil Procedure
Rules} which provides the mode
by which relief may be sought in
cases falling under article 33
of the Constitution as follows:
“A person who
seeks a redress in respect of
the enforcement of any
fundamental human right in
relation to the person under
Article 33(1) of the
Constitution shall submit an
application to the High Court.”
Clause 2 of
Article 33 provides the orders
that the High Court may issue in
appropriate instances of breach
of any of the fundamental human
rights by way of securing to the
aggrieved person the enforcement
and protection of such rights.
The events that sparked off the
proceedings herein appear to
have occurred on 27 June 1988.
On that date, a letter under the
hand of one Colonel BK Akafia
which was exhibited to the
affidavit of the applicant as
exhibit D and in support of his
case reads:
“
RELEASE FROM SERVICE
CAPTAIN RM
TINDANA ( GH/1841)
1. It has
been decided to
release
Captain Tindana from the service
of
the
Ghana Armed Forces with effect
from 27 June 1988 for services
no
longer
required.
2. You are to
issue his release instructions
accordingly.”
The said
letter according to paragraph 12
of the supporting affidavit was
sequential to exhibit C from a
member of the erstwhile PNDC to
the then General Officer
Commanding the Armed Forces
that he “had
contravened ‘military orders’
and” had additionally “come
to the notice of security
agencies on a number of
occasions in the past for
activities prejudicial to the
state and should therefore
be dealt with accordingly.”
Subsequent to
exhibit D, the applicant was
advised by a letter in evidence
as exhibit E of the date on
which his terminal leave was to
commence from. Before both the
trial High Court and the Court
of Appeal, the applicant’s right
to relief was refused and he
has accordingly appealed to this
court for an order allowing his
claims. In our view, having
regard to the cause of action on
which the applicant relies
namely Article 33.1 of the 1992
Constitution, the court must
firstly be satisfied that since
the date of his release was
prior to the coming into force
of the 1992 Constitution, his
claim to a relief is authorized
under the said article.
Consequently when the matter
came up before us on 21 January
2011 noting that neither party
had raised this point in their
statements of case submitted to
us we directed their attention
to it in compliance with Order 6
rule 8 of the Supreme Court
Rules, CI 16. The said rule
provides as follows:
“ Where the
Court intends to rest a decision
on a ground not set forth by the
appellant in the notice of
appeal, or on a matter not
argued before it the Court shall
afford the parties reasonable
opportunity to be heard on the
ground or matter without
re-opening the whole appeal”
Subsequently,
the parties made full compliance
to our direction on the said
points and accordingly the
appeal herein was adjourned for
judgment. In the course of
giving thought and consideration
to the issues for our
determination, however, we
observed in regard to the notice
of appeal filed in the Court of
Appeal that resulted in the
decision now on appeal to us
that it was filed out of time.
While the judgment of the trial
High Court in the matter was
delivered on 19 June 2007, the
notice of appeal to the Court of
Appeal was settled by learned
counsel for the appellant on 15
November 2007 and actually filed
in the registry of the Court of
Appeal on 16 November 2007. By a
simple computation of time we
think that in the absence of an
order of either the High Court
or the Court of Appeal extending
the time within which to appeal
from High Court’s decision of 19
June 2007, the appeal was
improperly constituted having
regard to rule 9 of the
Court of
Appeal rules, CI 19 wherein
it is provided as follows:
“(1)
Subject to any other enactment
governing appeals, an appeal
shall
not
be brought after the expiration
of
(a)
twenty-one days, in the case of
an appeal against an
interlocutory decision; or
(b) three
months, in the case of an appeal
against a final decision unless
the court below or the court
extends the time.
(2) The
prescribed period within which
an appeal may be brought shall
be
calculated from the date of the
decision appealed against.
(3) An
appeal is brought when the
notice of appeal is filed in the
registry
of the
Court.
(6) Where
the extension of time is
granted, the notice of appeal
shall
include
the date of the grant and the
Justice or the Court by whom the
grant is
made.”
Having made
the said discovery, which
initially looked startling to us
in view of the fact that the
matter was fully argued before
the Court of Appeal on the same
record of proceedings on which
this re-hearing is based save
the inclusion of what transpired
before this court pursuant to
the transmission of the record
to this court under rule 14 of
the Supreme Court Rules, CI 16 ,
we came to the view after a
careful perusal of the record of
appeal that the instant appeal
was filed clearly outside the
time frame provided in rule 9 of
CI 19 and consequently unable on
the grounds of the absence of
jurisdiction to consider the
appeal on the merits. But
before we pronounce on the
appeal herein, we wish to
consider a point of procedure
that turns on rule 6.8 of the
Supreme Court rules, CI 16
in the words that follow:
“Where the
court intends to rest its
decision on a ground not set
forth by the appellant in the
notice of appeal, or on a matter
not argued before it, the court
shall afford the parties
reasonable opportunity to be
heard on that ground or matter
without re-opening the whole
appeal.”
In our view,
this provision seeks to afford
the parties to an appeal that is
likely in the opinion of the
Court to be allowed on a point
that was not taken by the
appellant but by the court
itself to provide it with
assistance on the point before
it is pronounced upon. It does
appear from the rule that where
the effect of the point that we
have taken regarding the
competency of the appeal is one
that does not result in the
appeal being allowed then there
is no obligation on us to give
the parties the opportunity to
be heard on it before deciding
the appeal.
There is yet
another reason in our opinion
that enables us based on the
said rule of having regard to
the circumstances of this case
not to exercise ourselves by
affording the parties to the
appeal herein the opportunity to
answer the point that has been
raised by us. We think that the
comments made in the case of
AkufFo-Addo v Cathleen [1992] 1
GLR 377 at 392 may be
applied to the situation that
arises before us under rule 6.8
of the Supreme Court Rules.
Although the pronouncements
made by Kpegah JA (as he then
was) in delivering the lead
judgment of the Court at page
392 were in reference to rule
8.6 of the previous
Court of
Appeal Rules, LI 218, the
purpose of both rules is the
same and for that matter are of
value to us in construing it.
We make particular reference to
that part of the speech of the
learned judge that is relevant
to the issue before us as
follows:
“Therefore in
applying the proviso to rule
8(6) of LI 218 care must be
taken that we do not in the
process give an interpretation
which will inhibit or stultify
the rule that an appeal before
the Court of Appeal ( shall be
by way of rehearing”. The
proviso cannot, in my view, be
said to imply an absolute
prohibition. In certain special
or exceptional circumstances,
the proviso will not apply. So
it can be said that the Court of
Appeal should not decide in
favour of an appellant on a
ground not put forward by him
unless the court is satisfied
beyond doubt, first, that it has
before it all the facts or
materials bearing upon the
contention being taken by it suo
motu; and secondly, that the
point is such that no
satisfactory or meaningful
explanation or legal contention
can be advanced by the party
against whom the point is being
taken even if an opportunity is
given him to present an
explanation or legal argument;
for example void matters as in
this case.”
The point
touching rule 6.8 is in our view
wholly unanswerable and as such
no useful purpose can be served
by giving the parties the
opportunity to answer it. The
appeal which was filed long
after the three months period
provided under rule 9 of the
Court of Appeal Rules was
plainly incompetent resulting in
the absence of jurisdiction in
the Court of Appeal to determine
it. Consequently, the entire
proceedings acquire the
attribute of nullity and same
are hereby set aside.
The result
is that we do not have before us
any appeal to be considered on
the merits. It is to be observed
that in such cases the court’s
decision is based essentially on
the requirements of due process
that all parties who desire to
appeal in cases that have been
tried must comply with the
conditions under which the right
of appeal has been conferred on
them. See:
Darke v
Darke [1984-86] GLR 481.
For these
reasons the instant appeal is
struck out as incompetent.
[SGD] N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
[SGD] S. A.
BROBBEY
JUSTICE OF THE SUPREME COURT
[SGD]
J. ANSAH
JUSTICE OF THE SUPREME COURT
[SGD] R. C.
OWUSU (MS)
JUSTICE OF THE
SUPREME COURT
[SGD] P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL;
DR. RAYMOND
ATUGUBA FOR THE
PLAINTIFF/APPELLANT.
SYLVIA ADUSU
(PSA) WITH HER GRACE MBROKOR
EWOO(SSA) AND CECIL
ADADIVOR(SSA)FORTHEDEFENDANTS/RESPONDANTS |
