CAPTAIN ROBERT MBA TINDANA v. THE CHIEF OF DEFENCE STAFF THE MINISTER OF DEFENCE THE ATTORNEY GENERAL

GBADEGBE JSC:

On the 27th day of July 2007, the applicant by means of an originating notice of motion issued the process herein seeking among other reliefs “A declaration that that the respondents have breached the Armed Forces Act, 1962 (Act 105) and the Armed Forces Regulations by wrongfully releasing the applicant from active service” as well as certain consequential orders. It appears from the nature of the case put up by the applicant and in particular the mode by which the action was commenced that it was planked on the provisions of Article 33 of the 1992 Constitution. In fact in the body of the motion paper that originated the action herein it was boldly inscribed in the heading as follows:

“IN THE MATTER OF AN APPLICATION UNDER ARTICLE 33 OF THE 1992 CONSTITUTION AND ORDER 67 OF THE HIGH COURT (CIVIL PROCEDURE) RULES (CI 47)”.

Since the applicant based his action on Article 33 of the 1992 Constitution, it is important that the said provision of the 1992 Constitution on which he relied be quoted in extenso. It is provided in Article 33 .1 as follows:

“Where a person alleges that a provision of this Constitution on the fundamental human rights has been, or is likely to be contravened in relation to him, then without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.”

It appears from the originating notice of motion by which the instant action was commenced in the court below that it was brought for the purposes of enforcing an alleged breach of the fundamental human rights guaranteed to us under the 1992 Constitution. It repays in this regard to refer to Order 67 of the High Court (Civil Procedure Rules} which provides the mode by which relief may be sought in cases falling under article 33 of the Constitution as follows:

“A person who seeks a redress in respect of the enforcement of any fundamental human right in relation to the person under Article 33(1) of the Constitution shall submit an application to the High Court.”

Clause 2 of Article 33 provides the orders that the High Court may issue in appropriate instances of breach of any of the fundamental human rights by way of securing to the aggrieved person the enforcement and protection of such rights. The events that sparked off the proceedings herein appear to have occurred on 27 June 1988. On that date, a letter under the hand of one Colonel BK Akafia which was exhibited to the affidavit of the applicant as exhibit D and in sup