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This ruling
is in respect of an application
for an extension time to enable
the applicants to bring an
action for human rights redress
under article 33 of the 1992
Constitution and judicial
review. The applicants, in this
case, are all members of various
District Mutual Health Insurance
Schemes established pursuant to
the National Health Insurance
Act, 2003 (Act 650). On
03-02-2009, the National Health
Insurance Authority (NHIA), by
letter, directed the dissolution
of all boards of the District
Mutual Health Insurance Schemes
and in their place the various
District Co-ordinating Directors
of the Metropolitan, Municipal
and District Assemblies were to
assume oversight responsibility
for the schemes within their
jurisdictions. The various
boards of the schemes made
strenuous efforts to have the
directive withdrawn but all to
no avail. So, on 08-10-2010, the
applicants brought the instant
application. Order 67, rule 3(1)
of the High Court (Civil
Procedure) Rules, 2004 (C.I. 47)
provides as follows: "3.(1) The
application (i.e. application to
seek redress in respect of the
enforcement of any fundamental
human right) shall be submitted
to the High Court within. (a)
six months of the occurrence of
the alleged contravention; or
(b) three months of the
applicant becoming aware that
the contravention is occurring
or is likely to occur." The
alleged contravention of the
human right of the applicant is
traced to the letter of
03-02-2009 from the NHIA
dissolving the boards. From
03-02-2009, the applicants made
various attempts to resolve the
issue but their efforts did not
yield any results. By the time
the applicants gave up pursuing
alternative means of resolving
the issue six months had long
elapsed. Thus, the instant
application for extension of
time. The 1st respondent, that
is, the National Health
Insurance Authority, opposes the
application on the following
grounds: "(a) Good and
sufficient reasons have not been
given for the inordinate delay
in bringing the application. (b)
The application is hopelessly
and incurably out of time. (c)
It would defeat the whole
purpose of limiting the time
allowed for bringing an
application for judicial review
to permit the Applicants
extension of time to initiate
such application. (d) Decisions
have been taken by the 1st
Respondent over an extended
(period of time) based on the
directive complained against,
and it would be extremely
prejudicial and detrimental to
the 1st (Respondent) and the
whole National Health System to
permit the Applicants to reopen,
in the manner being sought, the
issues arising out of the said
directive, in order to reverse
those decisions. (e) There are
available alternative judicial
remedies available to the
Applicants that may entail less
disruptive of the health system
should any court in the future
find favour with their claim.
(f) The Application is
incompetent. (g) The nature of
the reliefs that the Applicant
propose to seek from the court
have not been formulated (or
sufficiently so), to enable the
court exercise its discretion
one way or the other." The
applicants, in a supplementary
affidavit, exhibited the
application for human rights
redress in which they stated the
reliefs they are seeking as
follows: "a) A declaration that
the purported dissolution of the
Boards of the District Mutual
Health Insurance Schemes (DMHIS)
as per letter dated 03-02-2009
from the National Health
Insurance Authority, signed by
the then Chief Executive
Officer, Mr. Ras Boateng, is
contrary to the National Health
Insurance Act, (Act 650), 2003,
and its Regulations, L.I. 1809
of 2004, hence, it is of no
effect; b) A declaration that
the purported dissolution of the
Boards contrary to Act 650 has
denied and continue to deny
participation of members of the
various DMHIS in decision making
with respect to their health
care needs and rights; c) A
declaration that the continued
management of the DMHIS by the
'caretaker committees' set up by
the National Health Insurance
Authority in place of the
various Boards of Directors, is
contrary to law and of no
effect; d) A declaration that as
Board members for the various
DMHIS, on the records of the
Registrar General's Department,
the applicants (except the 2nd
applicant) remain liable for the
performance of their obligations
and responsibilities and the
enjoyment of rights, privileges
and benefits of members of
Boards of Directors of Companies
Limited by Guarantee, hence any
attempt to prevent them from
performing their duties or
enjoying their right is
unlawful; e) A declaration that
the attempt of the 1st
respondent to retire the Boards
and efforts re 'payment of
retirement package to former
Board Directors of DMHIS’ is
contrary to law and of no
effect; f) An order directed at
the Chief Executive Officer of
the 1st respondent to withdraw
the letter dated 03-02-2009
referred to in relief above
purporting to dissolve the
Boards of the DMHIS; g) Costs."
From the application exhibited,
the applicants have not referred
to any particular contravention
of human right for which they
are seeking the above reliefs.
When seeking redress under
article 33 (1) of the 1992
Constitution and Order 67 of
C.I. 47, it is helpful to the
applicant to direct the court to
the particular human right or
freedom which has been violated.
In the absence of that, the
court now has to read the
affidavit in support to see if
the depositions support a
violation of any human right
norm. In that situation, the
applicant is not being too
helpful to the court and
himself. Be that as it may, upon
examining the depositions in
support of the application, I
have come to the conclusion that
the applicants, in this case,
are alleging a contravention of
their right to administrative
justice pursuant to article 23
of the 1992 Constitution which
states as follows:
"Administrative bodies and
administrative officials shall
act fairly and reasonably and
comply with the requirements
imposed on them by law and
persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal." In other
words, the applicants are
alleging that the 1st respondent
failed to comply with the
requirements of law by its
directive of 03-02-2009 and they
are therefore seeking the
reliefs stated above. If the
applicants want to rely on other
provisions, they should state
same if they are granted
extension of time. The next
issue then is whether the
applicants have made a case for
extension of time. Order 80,
rule 4(1) and (2) of C.I. 47
gives the Court discretion to
extend time for bringing an
action which is otherwise
statute-barred. Rule 4(1) and
(2) of Order 80 provides as
follows: "4.(1) The Court may,
on such terms as it thinks just,
by order extend or reduce the
period within which a person is
required or authorized by these
Rules, or by any judgment, order
or direction, to do any act in
any cause or matter. (2) The
Court may extend any such period
although the application for
extension is not made until
after the expiration of that
period." The predecessor to
Order 80, rule 4 of C.I. 47 is
Order 64, rule 6 of the High
Court (Civil Procedure) Rules,
1954 (LN140A). The Supreme Court
in the case of Eku @ Condua III
v. Acquah [1963] 1GLR 271
considered the factors which the
court should take into
consideration in exercising its
discretion whether to extend
time or not. The court,
unanimously, held that, in an
application for extension of
time, the sole question to be
decided is whether or not the
delay is reasonable, excusable
or bona fide. In deciding that
issue, the court will have to
take into consideration all the
circumstances which led to the
application to enable it
determined whether or not the
grant of the application in a
particular case can appear to be
a judicial exercise of its
discretion. In the instant case,
what are the circumstances that
led to the delay? After
03-02-2009, when the letter of
dissolution of the boards was
issued, the applicants did not
just sit back and waited till
now. They first wrote to the
Minister of Health to draw his
attention to all the
illegalities inherent in the
attempt by the 1st respondent to
dissolve the boards. The
Minister held a meeting with
them on 10-05¬-2009 to address
the issues and the Minister
promised to look into the issues
raised but he did not take any
action. On 04-06-2009, the board
chairmen, from Brong Ahafo,
wrote a letter to the Chief
Executive of the 1st respondent
drawing his attention to the
violations of Act 650.
Furthermore, a delegation of the
board members met Dr. Mustapha
Ahmed, Chairman of the
Parliamentary Committee on
Health, to discuss the concerns
of the board members. On
24-06-2009, Dr. Mustapha Ahmed
convened all members of the
Parliamentary Committee on
Health to meet the delegation to
resolve the issues surrounding
the dissolution. The Committee
agreed that they had a good case
which they would work on and
revert to them but it appears
the Committee did not act on
their promise. The above efforts
of the applicants clearly show
that they were not indolent and
that they made strenuous efforts
to resolve the matter amicably
but all those efforts were in
vain. I think that this is a
proper case if justice is to be
done time should be extended for
the applicants to bring an
action. Furthermore, Article 23
of the Constitution is a
fundamental human right
provision. Fundamental human
rights provisions must be
construed broadly and generously
and, their restrictions,
strictly. As such, a liberal
approach is adopted to rules of
practice and procedure so as to
give individuals a full measure
of their fundamental rights and
freedoms. Thus, the Uganda High
Court in Rwanyarare & Ors Misc
App. No. 85/93 at page 13
(Unreported) found that a
statutory requirement of sixty
days before any suit could be
filed against the government did
not apply to the applications
under the Constitution. Also,
the Court of Appeal of Guyana in
Attorney-General v. Alli & Ors
[1989] LRC (Const) 474 per
Harper, J.A. stated as follows:
“….a citizen whose
constitutional rights are
allegedly trampled upon must not
be turned away from the Court by
procedural hiccups. Once a
complaint is arguable a way must
be found to accommodate him so
that other citizens become
knowledgeable of their rights."
The Ugandan Constitutional Court
in Tinyefuza v.
Attorney-General, Constitutional
Petition No. 1 of 1997, 25 April
1997, (unreported) adopted the
approach of Harper J.A. in
Attorney-General v. Alli & Ors
(supra) when it held per
Manyindo D.C.J. at page 12 thus:
"The case before us relates to
the fundamental rights and
freedom of the individual like
the petitioner which are
enshrined in and protected by
the Constitution. In my opinion,
it would be highly improper to
deny him a hearing on technical
or procedural grounds. I would
even go further and say that
even where the respondent
objects to the petition as in
this case, the matter should
proceed to trial on the merits
unless it does not disclose a
cause of action at all. This
Court should readily apply the
provision of ... the
Constitution in a case like this
and administer substantive
justice without undue regard to
technicalities." The decisions
cited above are decisions of
other common law countries with
Constitutions having fundamental
human rights protections and
provisions like ours. These
decisions are of persuasive
authority and I adopt them. For
the reasons, also, that the
applicants want to apply to this
Court for the enforcement of
their constitutional rights,
this Court would give them a
hearing in spite of the
provision in Order 67, rule 3(1)
of C.I. 47 to the contrary. The
1st respondent also raises the
issue of joining the
Attorney-General to the proposed
application. By Order 67, rule
3(2) of C.I. 47, the
Attorney-General is a necessary
party to the proposed
application. The said rule
states as follows: "Notice of
the application shall be served
on the Attorney-General and all
parties named in the affidavit
of the applicant as being
directly effected (sic)." The
application for extension of
time is, accordingly, granted.
The applicants should bring the
requisite application from
fourteen days, hereof. COUNSEL:
1. Mr. Tuinese E. Amuzu (Abdul
Basit Bamba and Davilina Appiah
with him) for Applicants. 2. Mr.
Tony Lithur for 1st Respondent. |
