CAPTAIN ROBERT MBA TINDANA vs. THE CHEIF OF DEFENCE STAFF & 2 ORS [2011]DLSC6396

Date	2011-07-27
Suit No.	CIVIL MOTION SUIT NO. J7/4/2011
Citation No.	[2011]DLSC6396

BROBBEY (PRESIDING) JSC

ANSAH JSC

ADINYIRA (MRS.) JSC

OWUSU (MS) JSC

YEBOAH JSC

BONNIE JSC

GBADEGBE JSC

APPLICANT APPEARS IN PERSON CECIL ADADEVOH

SENIOR STATE ATTORNEY WITH MISS HELENA FRENCH

ASSISTANT STATE ATTORNEY FOR ALL THE RESPONDENTS

[2011]DLSC6396
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													<main id="main" class="content" style="min-height: 60rem" >CAPTAIN ROBERT MBA
TINDANA<o:p></o:p>vs.<o:p></o:p>THE CHEIF OF DEFENCE
STAFF &amp; 2 ORS<o:p></o:p>[SUPREME
COURT, 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">

CIVIL MOTION SUIT NO. J7/4/2011&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: 27TH JULY, 2011<o:p></o:p>

CECIL
ADADEVOH, SENIOR STATE ATTORNEY WITH MISS HELENA FRENCH, ASSISTANT STATE
ATTORNEY FOR ALL THE RESPONDENTS.<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>ANIN-YEBOAH JSC <o:p></o:p>The
applicant herein Captain Robert Mba Tindana was a Military Officer commissioned
into the Ghana Armed Forces in 1979. <o:p></o:p>Whilst
on peace-keeping operations, he was alleged to have done “an act to the
prejudice of good order and discipline” contrary to section 54 of the Armed
Forces Act 1962, Act 105.&nbsp; The facts
leading to his discharge from the Armed Forces do not appear to be very
necessary for the determination of this application.&nbsp; Some time after his discharge,&nbsp; the applicant instituted proceedings at the
High Court (Fast Track Division) seeking several reliefs flowing from what he
alleged as breaches of the Armed Forces Act, 1962 Act 105 and violations of his
fundamental human rights. <o:p></o:p>The
High Court, on 19/06/2007, dismissed the applicant’s action on the basis that
the action was caught by the Limitation Act, NRCD 54 and the Transitional
Provisions of the 1992 Constitution. <o:p></o:p>Naturally
aggrieved by the decision, the applicant lodged an appeal at the Court of
Appeal.&nbsp; The Court of Appeal dismissed
the appeal.&nbsp; The Notice of Appeal to the
Court of Appeal was filed on the 16/11/2007. At the Court of Appeal, the appeal
was dismissed on the merits.&nbsp; The
applicant lodged an appeal to the Supreme Court.&nbsp; The Supreme Court after hearing the parties,
based on the written submissions of both counsel in the appeal dismissed the
appeal on the simple ground that the appeal from the High Court judgment was
filed out of time without any extension of time and therefore the Court of
Appeal had no jurisdiction to entertain the appeal from the High Court. In the
unanimous ruling of the Supreme Court that was read by Justice Gbadegbe, the
court pronounced on the competency of the appeal that was determined by the
Court of Appeal as follows: <o:p></o:p>“The appeal which was filed after
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”. <o:p></o:p>The
applicant, who is aggrieved by the dismissal of his appeal, has now brought
this application inviting this court to review its decision by setting aside
the judgment dismissing his appeal on several grounds. For fuller record the
grounds for this application as set out as follows: <o:p></o:p>a)&nbsp; The applicant was not out of time in bringing
the appeal to the Court of Appeal. <o:p></o:p>b)
Assuming without conceding that the applicant filed his appeal to the Court of Appeal
late in time, that irregularity is waivable and same was waived by the Court of
Appeal. <o:p></o:p>c)
The Supreme Court erred when it neglected, contrary to statute and contrary to
the principle of audi alteram partem, to hear the applicant before resting its
decision entirely on a fresh ground that was generated by the court itself,
leading to a judgment that is contrary to the evidence in the record of
proceedings to the effect that any irregularity on the part of the applicant
was waived by the Court of Appeal. <o:p></o:p>d)
The Supreme Court erred when it swept under the carpet, crucial issues relating
to the interpretation of the Human Rights and indemnity provisions of the 1992
Constitution on substantive Justice, by sheltering under a mere procedural rule
that is , in any event, waivable. <o:p></o:p>On
the first ground, the applicant has urged on us that his appeal was not filed
out of time.&nbsp; This is based on his
interpretation of the reckoning of time in civil matters.&nbsp; The computation of time is statutorily
provided for in the various rules of court.&nbsp;
In the instant case, the applicable rules are contained in the Court of
Appeal Rules, CI 19.&nbsp; The judgment of the
High court was delivered on 19/06/2007.&nbsp;
By rule 9(1)(b) of the Court of Appeal Rules, the applicant had three months
within which to lodge any appeal against the High Court’s judgment since the
judgment was not interlocutory but final for all purposes except he was granted
leave by&nbsp; the High Court or the Court of
Appeal under sub rule 4 of the rule. <o:p></o:p>The
applicant did not lodge his appeal within the three months from the delivery of
the High Court’s judgment.&nbsp; Neither did
he seek and obtained an order in his favour to appeal out of time.&nbsp; He contended that as the judgment was
delivered on the 19/06/2007 and the legal vacation commenced on 1/08/2007 and
ended on 30/09/2007, he was within time.&nbsp;
In effect, legal vacations are not reckoned in the computation of time
for lodging civil appeals. Learned counsel for the applicant acknowledges that
time for filing pleadings and amendment of pleadings are not reckoned during
legal vacations.&nbsp; He says a pleading in
civil proceedings includes Notice of Appeal as a : “Notice of Appeal is for the
purpose of providing notice of what is to be expected at the trial in the Court
of Appeal”.&nbsp; <o:p></o:p>