CAPT. DANIEL NIKYI vs. THE REPUBLIC [2010]DLCA6674

Date	2010-01-28
Suit No.	COURT MARTIAL APPEAL NO.2/2009
Citation No.	[2010]DLCA6674

QUAYE JA (PRESIDING)

ABODAKPI J.

ARYENE (MRS) J.

MR DAVID VANDYIK FOR ANDREW DANIELS FOR APPLICANT.

MAJOR FELIX KORBIEH FOR CAPT. BINDITI CHITOR FOR RESPONDENT.

[2010]DLCA6674
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >CAPT. DANIEL NIKYI<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

COURT MARTIAL APPEAL NO.2/2009&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: 28TH JANUARY 2010<o:p></o:p>

MAJOR
FELIX KORBIEH FOR CAPT. BINDITI CHITOR FOR RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>ABODAKPI, J<o:p></o:p>The
application which triggered the preliminary objection, which is the issue
before this court is entitled. <o:p></o:p>MOTION
ON NOTICE FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR LEAVE TO APPEAL <o:p></o:p>The
motion paper showed that, applicant is praying for an order for extension of
time to apply for leave to appeal.&nbsp; The
reason assigned in support is that the appeal stands a good chance of success. <o:p></o:p>AND
EXHIBIT AD1’, attached, showed that diligent efforts were made to secure a copy
of the RULING given on 6th August 2009, and that applicant was not negligent. <o:p></o:p>At
the hearing counsel for the Republic/Respondent argued that
appellant/applicant’s right of appeal had not accrued.&nbsp; He referred to section 90 of the Armed Forces
Act, Regulation 4 of the Armed Forces [Court Martial Appeal Court] Regulations
and Regulations 4(1) of the Rules of Court (Court Martial Appeal Court). <o:p></o:p>Counsel
submitted that the combined effect of the rules is that an applicant/applicant
has (90) ninety days as the prescribed period to apply to the officer
commanding his unit/establishment. <o:p></o:p>Regulation
4(1) of the Rules of court (Court Martial Appeal’s Court) provides: <o:p></o:p>"The period within which a person
convicted by a court, other than a person sentenced to death must, as a
condition precedent to the exercise of his right of appeal, present under
regulation 4(a) of these rules to the appropriate authority a petition praying
that his conviction be quashed shall be 90 days next following that on which
the finding of the Court-Martial was promulgated". <o:p></o:p>And
section 90(a) of the Armed Forces Regulations provides: <o:p></o:p>"Every person who has been tried
and found guilty by a court Martial shall have a right of appeal to the Court
Martial Appeal Court, in such form, manner and within….. <o:p></o:p>"….such time as may be prescribed
in terms of either or both of the following a. the legality of any of all
findings. <o:p></o:p>The
two legislations reproduced above showed that the law giver contemplates a
PERSON CONVICTED AND, EVERY PERSON WHO HAS BEEN TRIED AND FOUND GUILTY by a
Court Martial". <o:p></o:p>Even
though applicant has been convicted after a full trial his application for
LEAVE to appeal relates to the interlocutory order/finding that, he should
enter his defence, because a prima facie case has been made against him. <o:p></o:p>Under
section 173 of the Criminal Procedure Code, Act 30/60 (as amended) a prima
facie case per se cannot lead to a conviction. <o:p></o:p>The
meaning of, PRIMA FACIE would provide a proper context in which to look at the
issues raised by this application and the preliminary objection. <o:p></o:p>Prima
facie evidence means: <o:p></o:p>"that which, not being
inconsistent with the falsity of the hypothesis….<o:p></o:p>&nbsp;"….nevertheless raises such degree of
probability in its favour that it must prevail if believed by the jury unless
rebutted or the contrary proved". <o:p></o:p>Another
definition of what constitutes prima facie case is as seen in the case: SHER
SINGH <o:p></o:p>VRS
<o:p></o:p>JITENDRAHATH
SEN [1931] 1 LR calc. 275 there Ghose J stated: <o:p></o:p>"It (prima facie) means that
there is ground for proceeding but prima facie case is not the same thing as
‘PROOF’ which comes later when the court has to find whether the accused is
guilty or not guilty; ‘PROOF’ is nothing but belief according to the conditions
laid down in the Evidence Act". <o:p></o:p>Even
though ap</main>