CAPTAIN ROBERT MBA TINDANA v. THE CHIEF OF DEFENCE STAFF & ORS

ANIN-YEBOAH JSC:

The applicant herein Captain Robert Mba Tindana was a Military Officer commissioned into the Ghana Armed Forces in 1979.

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. The facts leading to his discharge from the Armed Forces do not appear to be very necessary for the determination of this application. Some time after his discharge, 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.

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.

Naturally aggrieved by the decision, the applicant lodged an appeal at the Court of Appeal. The Court of Appeal dismissed the appeal. 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. The applicant lodged an appeal to the Supreme Court. 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:

“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”.

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:

a) The applicant was not out of time in bringing the appeal to the Court of Appeal.

b) Assuming without conceding that the applica