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On
24-05-2010, the applicant, Lt (GN)
Seth Ababio Kwesi Mensah-Edmund,
invoked the jurisdiction of this
court by way of originating
summons pursuant to Order 54,
rule 54 of the High Court (Civil
Procedure) Rules, 1954 (LN140A)
for the enforcement of his
fundamental human rights under
the 1992 Constitution. The
applicant supports this
application with an affidavit.
On 06-11-2010 and 09-11-2010,
the respondents, namely the
Attorney-General, the Minister
of Defence and the Chief of
Defence Staff filed affidavits
in opposition to the
application. The respondents, on
29-10-2010, 03-11-2010 and
09-11-2010, filed notices to
raise preliminary legal
objection as to the competency
of the applicant's instant
motion on the following grounds:
"a. That the application is time
barred. b. That the application
is not the proper procedure for
seeking redress of an alleged
violation of human right
purportedly occasioned by the
judgment of a Court Martial
which is a court of competent
jurisdiction. c. That the
application is not one which
should be brought by an
Originating Summons. d. That
there is not sufficient evidence
that the affidavit in support of
the application has been sworn
before any officer authorized by
the rules." To appreciate the
preliminary objection, it would
be relevant to state the brief
facts of this case. The
applicant until 16-03-2009 was a
navy officer with the Ghana
Armed Forces. On 13- 07-2008, he
married a subordinate, a rating
by name Abi Dosu Theresa, at the
Word Miracle Church
International, at Dzorwulu, near
Abelemkpe, Accra. As a result of
this marriage, he was charged
before a Court Martial which
found him guilty on 16-03-2009
and awarded him a punishment of
dismissal from the Ghana Armed
Forces. It is as a result of
this dismissal that the
applicant on 24-05-2010 applied
to this court for the
enforcement of his human rights
whereby he seeks the following
reliefs: a. A declaration that
the Command and Staff
Instructions Procedure violates
his fundamental human rights as
enshrined in the 1992
Constitution. b. A declaration
that his dismissal for marrying
a non-commissioned officer is a
violation of his fundamental
human rights as enshrined in the
1992 Constitution. c. An order
directed at the Ghana Armed
Forces and the Ministry of
Defence to reinstate him with
full benefits and without the
loss in seniority. Having given
the background of the case, I
would now deal with grounds of
the preliminary objection. a.
The application is time barred.
The applicant was dismissed from
the Ghana Armed Forces on
16-03-2009 but he filed the
application for redress of the
violation of his human rights on
24-05-2010. By Order 67, rule 3
of the High Court (Civil
Procedure) Rules, 2004 (C.I.
47), the applicant is to file
his application within six
months of the occurrence of the
alleged contravention or three
months of his becoming aware
that the contravention is
occurring or is likely to occur.
It is obvious that the applicant
is prima fade out of time, for
six months had long passed since
his dismissal. As to when the
applicant became aware of the
contravention or violation of
his human rights, counsel for
applicant submits that the
applicant became aware recently
and immediately instructed
counsel to file the application
on his behalf. With due respect
to counsel, he is confusing
awareness with ignorance. It is
his dismissal that is the event
constituting the alleged
contravention. So, the applicant
cannot be heard to say that he
was not aware that he was
dismissed. It is different from
saying that he did not know that
his dismissal was a violation of
his human rights which amounts
to ignorance. The applicant knew
of his dismissal the very day it
was pronounced in his presence,
that is 16-03-2009 as such the
plea of ignorance cannot save
him from running out of time.
However, it has been held by
other common law jurisdictions
that where fundamental rights
are invoked, a liberal approach
must be taken towards procedural
requirements. Thus in Rwanyarare
& Ors, judgment of the High
Court of Uganda, 2 December
1993, Misc App. No.85 of 1993
(unreported) at page 13,
Egonda-Ntende J. held that a
statutory requirement of sixty
days notice before any suit
could be filed against the
government did not apply to
applications under the
Constitution. Similarly, the
Court of Appeal of Guyana in the
case of Attorney-General v. Alli
& Ors [1989] LRC (Const) 474 per
Harper J.A. stated thus: “…....
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
Constitutional Court of Uganda
also has its say on the need to
have a liberal approach to
procedural and technicalities
when human rights provisions are
invoked. In Tinyefuza v.
Attorney-General, Constitutional
Petition 1 of 1997, 25 April
1997 (unreported) Manyindo,
D.C.J. stated the principle as
follows: "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 on
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 High Court of Malawi in Rev.
Longwe (and) Ors v. The
Attorney- General & Anor, 29
January 1993, Misc. Civil Appl.
No. 11 of 1993, (unreported)
also stated the principle when
Tambala 3 held in an application
challenging the
constitutionality of orders
prohibiting the applicants from
speaking at a series of meetings
that it was "a matter great
importance. It concerns the
freedom and the right of an
individual to participate in
effecting peaceful change in the
political system of his country.
The decision on such an
application must, in my view,
depend on the substance and
merits of the application and
not on a procedural
technicality." The above
decisions are of persuasive
authority, and in my view, it
makes sense adopting them so as
to give to all persons the full
and realistic enjoyment of the
fundamental human rights and
freedoms enshrined in Chapter 5
of the 1992 Constitution and
with particular reference to
article 33(5) which states that
"the rights, duties,
declarations and guarantees
relating to the fundamental
human rights and freedoms
specifically mentioned in this
chapter shall not be regarded as
excluding others not
specifically mentioned which are
considered to be inherent in a
democracy and intended to secure
the freedom and dignity of man."
Thus, although by Order 67, rule
3 of C.I. 47, the applicant
would be prima facie out of
time, the need to avoid
technicalities and procedural
hiccups when enforcing human
rights provisions act as a
safety valve to allow the
applicant prosecute his
application for human rights
redress. b. The application is
not the proper procedure, etc.
The applicant brought the
instant application pursuant to
the repealed Order 54, rule 4 of
the defunct LN 140A. It is
palpably wrong. However, it is
an issue of form not substance.
The proper rules of Court, that
the application should be
brought, is Order 67 of C.I. 47.
The substance of the application
complies with Order 67 of C.I.
47. I would therefore allow the
application to proceed as if it
was proceeded under Order 67 of
C.I. 47. Furthermore, from the
authorities I have cited
hereinbefore, this court is more
interested in the merits of the
application such that mere
technicalities in citing the
wrong or repealed rules of court
should not defeat the purpose of
the application. The respondents
also raised the issue of
jurisdiction of this court for
according to them it would
amount to challenging the Court
Martial. Also, the applicant did
not exhaust internal mechanisms
of Appeal pursuant to the Armed
Forces Act, 1962. I am of the
view that this objection is
misconceived for the application
is neither an appeal nor an
attempt to challenge the Court
Martial. The instant
application, in my view, is
seeking to attack the Command
and Staff Instruction Procedure
of the Ghana Armed Forces
relating to freedom of marriage
which is a human right. It has
nothing to do with the
jurisdiction of the Court
Martial, nor whether it was
right in arriving at its
decision. c. That the
application is not one which
should be brought by Originating
Summons This has already been
dealt with above so I would not
add more except to say that it
is only a technical flaw which
should not defeat the substance
of the application. d. That the
application has not been sworn
to by an authorized officer. The
affidavit in support of the
application was sworn before a
Commissioner of Oaths, Maxwell
M. Nyamedi, who is authorized to
take oaths. I do not see any
thing wrong with the affidavit
and the respondents counsel
never expatiated on it in his
submissions. This ground too is
misconceived. From the above
reasons, therefore, I would
dismiss the preliminary
objection and allow the
application to proceed. COUNSEL:
1. Mr. Fred Dotse for Applicant.
2. Amanda Clinton (Assistant
State Attorney) for Respondents. |
