CAPTAIN DANIEL NIKYI vs. ATTORNEY GENERAL, MINISTER OF DEFENCE AND CHIEF OF STAFF GHANA ARMED FORCES. [2009]DLHC5645

CAPTAIN DANIEL NIKYI vs. ATTORNEY GENERAL, MINISTER OF DEFENCE AND CHIEF OF STA... [2009]DLHC5645

Date	2009-03-24
Suit No.	SUIT NO: HRC/6/09
Citation No.	[2009]DLHC5645

JUSTICE UUTER P. DERY

LT. COL AWUAH FOR APPLICANTS.

MR. ANDREW DANIELS FOR RESPONDENT.

[2009]DLHC5645
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													<main id="main" class="content" style="min-height: 60rem" >CAPTAIN DANIEL NIKYI<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>ATTORNEY GENERAL, MINISTER OF DEFENCE AND CHIEF OF STAFF GHANA
ARMED FORCES.<o:p></o:p>(DEFENDANTS/APPLICANTS)<o:p></o:p>[HIGH COURT (HUMAN RIGHTS DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO: HRC/6/09&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 24TH MARCH, 2009<o:p></o:p>

</div>COUNSEL:<o:p></o:p>LT.
COL AWUAH FOR APPLICANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. ANDREW DANIELS FOR RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">RULING<o:p></o:p>

</div>The plaintiff /respondent, a captain in the Ghana Armed
Forces, on 20-02-09 filed a
motion under Order 67 of the High Court Civil Procedure Rules, 2004
(C.I. 47) seeking to enforce his fundamental human rights pursuant to Article 33(1) of the 1992 Constitution of Ghana. The
defendants/respondents were served with the plaintiff's motion. On the date
fixed for hearing of the motion, that is 03-03-09,
however, only the 1st
defendant/ applicant appeared in court and his response was that he was not
opposed to the application but urged the court to impose such conditions as to
ensure the plaintiff appears for trial before a court martial. At the time of
the hearing of the application, there was no affidavit in the case docket from
any of the defendants. The 2nd and 3rd defendants did not
also appear in court. The court granted the plaintiff’s application by granting
him bail on stated conditions.<o:p></o:p>On 05-03-09, the 2nd
and 3rd defendants filed
a motion under Order 42 of C.I. 47
for a review of the order of this court made on 03-03-09 and for a stay of execution of the said orders. This
ruling is, therefore, in respect of the 2nd and 3rd
defendants’ motion of 05-03-09.<o:p></o:p>I would begin by giving a
brief fact of the case that generated these proceedings. The plaintiff, a
captain in the Ghana Armed Forces, served as the finance officer for MONUC
GHANBATT 12 in the DR Congo on a
UN Peacekeeping Mission between 16th July, 2007 and 14th January, 2008. He was
given a financial instruction that covered the budget for the period of duty
tour. In accordance with instructions, the plaintiff on arrival from the
peacekeeping mission, prepared and submitted an account on the budget for
auditing. The Audit Report made adverse findings against him. The Military High
Command as a result ordered the plaintiff to be placed under close custody in
accordance with service regulations. He was subsequently charged with five offences under the Armed Forces Act, 1962 (Act 105) and
put before a court martial which is currently sitting. The plaintiff by his
counsel applied for bail before the court martial which application was
refused. He was released on bail by this court on 03-03-09 upon an application under Article 14 (4) of the Constitution. Thereafter, the 2nd
and 3rd defendants brought the instant application for review. The
purpose of the review is to revoke the bail that was granted.<o:p></o:p>The present application
raises a procedural as well as a substantive issue. The first question is
whether the applicants can properly have the order revoked by motion for
review?<o:p></o:p>Order
42, Rule 1(1) states as follows: <o:p></o:p>“A person who is aggrieved <o:p></o:p>a) by a judgement or order from which
no appeal has been preferred or<o:p></o:p>b) by a judgement or order from which
no appeal is allowed, <o:p></o:p>may upon the discovery of new and
important matter or evidence or evidence which, after the exercise of due
diligence, was not within that person’s knowledge or could not be produced by
that person at the time when the judgement was given or the order made, or on
account of some mistake or error apparent on the face of the record, or for any
other sufficient reason, apply for a review of the judgement or order.”<o:p></o:p>