NO. 204523 CORPORAL BENJAMIN MENSAH VRSMINISTRY OF DEFENCE PER MINISTER & 4 OTHERS (NR/TL/HC/EI3/28/23) [2023] GHAHC 643 (5 December 2023)

IN SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE NORTHERN REGION, TAMALE Suit No. NR/TL/HC/EI3/28/23 Delivered on 5th December, 2023 IN THE MATTER OF AN APPLICATION UNDER ARTICLE 33 (1) OF THE 1992 CONSTITUTION AND ORDER 67 OF THE HIGH COURT (CIVIL PROCEDURE) RULES. 2004 C. I. 47 BETWEEN NO. 204523 CORPORAL BENJAMIN MENSAH == APPLICANT 10 MECHANISED BATTALLION WA/AGGREY BARRACKS, WA VRS 1. MINISTRY OF DEFENCE PER MINISTER == RESPONDENTS OF DEFENCE, ACCRA 2. THE ARMED FORCES COUNCIL, ACCRA 3. THE COMMANDING OFFICER 10 MECHANISED BATTALION, WA 4. THE CHIEF OF DEFENCE STAFF BURMA CAMP. ACCRA 5. ATTORNEY GENERAL’S DEPARTMENT- TAMALE Counsel SYLVESTER ISANG FOR APPLICANT PRISCILLA NTIRI-ACQUAH GYASI FOR RESPONDENTS Coram JUSTICE ERIC ANSAH ANKOMAH Background JUDGMENT The applicant who is a military officer was accused of absenting himself from work without authority. He was further accused of army recruitment fraud. A complaint was made against the applicant at the police station. The applicant was arrested by the police in Kumasi and he was later handed over to his superiors at the 4BN in Kumasi where he was detained for about 6 months. The applicant was later transferred to his Unit in Wa where he was further detained in the military guardroom. In all, the applicant was detained without trial for over 15 calendar months. The applicant caused his counsel to file habeas corpus at the High court, Wa but irrespective of the orders made by the court, the applicant was not released from military custody. Rather the applicant was transferred from Wa barracks to Tamale Kamina barracks where he was again detained though the High Court Wa had granted the applicant bail. He was not sent to the registry of the court to execute the bail granted him by the court though the court order was served on the respondents. Another application for habeas corpus was filed in High Court Tamale when the applicant was transferred to Tamale in continues detention. It was when this court ordered the immediate release of the applicant that he was released to his counsel by the military from the military custody. Counsel for the applicant on 18th January, 2023 filed this application for the enforcement of the fundamental human rights of the applicant. It was on 5th April, 2023 that the respondents filed affidavit in opposition to the application. For a better appreciation of this application I will reproduce the entire affidavit evidence of all the parties before I proceed to evaluate the evidence on record. Applicant’s case The applicant affidavit in support of his application was not numbered consecutively so for ease of reference I have renumbered them consecutively in this judgment. I, NO. 204523 CORPORAL BENJAMIN MENSAH-KAMINA BARRACKS TAMALE in the Northern region of the Republic of Ghana do hereby make oath and say as follows: 1. That I am the Applicant herein and Deponent hereto. 2. That the facts deposed to in this affidavit are within my personal knowledge and belief or information from my solicitor which I verily believe same to be true. 3. That I am a military serviceman with service no. 204523 stationed at the 10 Mechanized Battalion Wa also known as the Aggrey Barracks in the Upper West Region of Ghana but now standing a court martial trial at the Kamina Barracks Tamale. 4. That I had an issue with a civilian friend and I was first arrested on 4th October 2021 by the police and on the same day I was handed over to the military police from 4BN and was placed in the 4BN guardroom on same day. 5. That at the time I was placed in the guardroom of the 4BN no charges whatsoever and howsoever were communicated to me which is against the Armed Forces Act 1962, Act 105 and the ARMED FORCES REGULATIONS, 1970 (CI 12) as amended. 6. That it was until 22nd October 2021 at about 1600 hrs when the Adjutant at 4BN brought a letter from the Commanding Officer of the Applicant which stated “Notification of intention to be released from the service” with 3 charges namely: 1. AWOL 2. GAF recruitment fraud 3. Defrauding individuals of various sum of money. 7. That I was given 14 days to reply to the three charges in exculpation which I did but till date no further communication came from my superiors as to whether or not I am to face service inquiry, service tribunal or a court martial to answer the charges levelled against me. 8. That I spent a total of six (6) months one (1) week at the 4BN guardroom (from 4th October 2021 to 4th January 2022 and still counting) and during this agonizing period my salary has been/and is still equally blocked with no explanation or justification whatsoever by my superiors, even to this day. 9. That on the 9th of April 2022, I was transferred from the guardroom of the 4BN to my unit, at Wa the 10 Mechanized Battalion and upon arrival I was sent straight to the guardroom of my unit to continue with serving the illegal imprisonment with my salary blocked. Meanwhile I have never been interdicted to warrant even payment of half salary let alone total blockage of my salary. 10. That in line with the laid down rules and procedures on 30th June 2022, I petitioned the Inspector General of the Ghana Armed Forces in which said petition I complained about the fact that I have been detained for well over six (6) months with no trial and that my salary had been blocked at the same time and no one appears to be interested in my ordeal. (Attached hereto and marked as Exhibit A is a copy of the petition I submitted to the Inspector General of my service). 11. That the Inspector General responded to my petition in a letter dated 29th July 2022 in which said letter he promised me that action will be expedited on my case. (Attached hereto and marked as Exhibit B is a copy of the said letter from the Inspector General). 12. That I have now spent more than a year now (4th October 2021 till date) in guardroom without any trial whatsoever and howsoever. 13. That the provisions of s.61 sub-sections 1, 2 &3 of the Armed Forces Act 1962, Act 105 for the sake of emphasis state as follows; Section 61. Report of delay of trial. (1) Where a person triable under the Code is placed under arrest for a service offence and remains in custody for eight days without a summary trial having been held or a court-martial for that person's trial having been ordered to assemble a report stating the necessity for further delay shall be made by that person's commanding officer to the authority who is empowered to convene a court-martial for the trial of that person, and a similar report shall be forwarded in the same manner every eighth day until a summary trial is held or a court-martial is ordered to assemble. (2) A person held in custody in the circumstances mentioned in subsection (1) who is continuously so held for a period of twenty-eight days without summary trial having been held or a court-martial having been ordered to assemble, is entitled to send to the President at the expiration of that period or to any other authority that the President may appoint in writing for that purpose, a petition to be freed from custody or for the disposal of the case. (3) A person held in custody in the circumstances mentioned in subsection (2) shall be freed when a period of ninety days continuous custody from the time of that person's arrest has expired, unless a summary trial is held or a court-martial is ordered to assemble. (Emphasis supplied). 14. That I invoked my right under section 61 (2) of Act 105 and petitioned the President of the Republic of Ghana the Commander-in-chief of the Ghana Armed Forces to as a matter of urgency order my release from the illegal incarceration since ninety days had elapsed since I was arrested and placed in custody and no trial whatsoever, not even a kangaroo trial had been held as evident by Exhibit "C" the letter from the Inspector General of the Ghana Armed Forces. (Attached hereto and marked as Exhibit C is a copy of the Petition I submitted to the President of the Republic of Ghana). 15. That I caused my solicitor to file a habeas corpus application and despite the fact that the High Court Wa on 30th December 2022 ordered that my body be produced in Court the Respondents ignored, refused or neglected to produce me in Court. Attached hereto and marked as Exhibit D is a copy of the said order marked together with the proof of service of same. 16. That the High Court Wa adjourned the habeas corpus application to 1st December 2022 with another Order directed at my Commanding officer to produce me in court but yet again he refused, failed or neglected to do so. 17. That the High Court Wa then decided to admit me to bail and directed that a copy of the order of bail be served on the Respondents to produce me at the High Court Wa to execute the bail bond. Attached hereto and marked as Exhibit E is a copy of the order for bail dated 1st December 2022 marked together with the proof of service of same. 18. That the Order of bail was duly served on the Respondents as directed by the High Court but not withstanding the service of the Order of Bail on them the Respondents refused, neglected or failed to produce me in court to enable me execute the bail bond. 19. That meanwhile my parents travelled to Wa and attended the Court hearing and made themselves available as sureties with the necessary justification to ensure that I meet the bail conditions but the Respondents failed, refused or neglected to produce me before the Court to have the bail executed. 20. That when I engaged counsel in the last quarter of 2022 that he advised and which I verily believe the same to be true that as per the Relevant Constitutional provisions my fundamental human rights as enshrined in articles 12(1), 14 (1)15(1), 15(2), 17(2), and 19 (1) & 19 (2) (c) have been violated by the Respondents. 21. That the conditions or abuse complained of in the immediate preceding paragraph have not stopped happening in any case as I am still currently suffering from same. 22. That by detaining me beyond 90 days prescribed by statute and without any trial, the Respondents have violated, or are violating my fundamental human rights to personal liberty and respect to dignity and right to be presumed innocent. 23. That I am advised by counsel and I verily believe same to be true that an order of court remains valid and must be obeyed until steps are taken to vary same or vacate same. 24. That by stopping my salaries without any interdiction or lawful order of any court of competent jurisdiction my right to own property and to economic wellbeing as enshrined in Article 18 of the 1992 Constitution of Ghana has been violated, and is being violated. 25. That 3rd Respondent directly ordered my detention and throughout my illegal detention he continued to notify me that there was no one who could save me, not even the court and kept on taking orders from the 4th Respondent even including as whether or not the various court orders served on 3rd Respondent should be obeyed or not. 26. That 2nd Respondent is the governing council of the Ghana Armed Forces and thus the highest decision body making of the Armed Forces. 27. That 1st, 3rd, and 4th Respondents were all served with copies of the petition I wrote to the President drawing their attention to the violation of my fundamental human rights by the 3rd Respondent who was acting on the express and implied instructions of the Respondents but the 1st and 4th Respondents flatly ignored my petition thus giving more morale for the 3rd Respondent to verbally abuse me during my detention. 28. That I am unable to tell the exact amount of my unpaid salaries from October 2021 till date as I have no access to my pay slips. But I intend to subpoena the Accounts Unit of my service to submit a statement of my unpaid salaries during the hearing of the case. 29. That the Respondents would not compensate me for the abuse of my fundamental human rights and also pay me my salaries unless they are compelled to do so by this honourable Court. 30. Wherefore, I depose to this Affidavit in support of the application and praying for the following reliefs: Adjudge and declare the following: a. That by detaining the Applicant in guardroom for over a year and above the Respondents prescribed period without any trial whatsoever and howsoever have, or are violating or are likely to violate Applicant's fundamental human rights to personal liberty, respect to personal dignity, right to fair trial and right to be presumed innocent. b. That by stopping the salary of the Applicant without any interdiction or lawful order the Respondents have, or are violating or are likely to violate Applicant's fundamental human rights to economic wellbeing. c. Award damages or punitive damages of Two Million (GHS 2,000,000.00) against the Respondents and in favour of the Applicant for the abuse of the fundamental human rights of the Applicant. d. Costs. The Respondents case. The respondents upon being served with the application filed affidavit in opposition. One Frank K. Agbontor of the Ghana Armed Forces, Northern Command deposed to affidavit on behalf of all the respondents and I hereby reproduce the affidavit. 1. That I am the deponent hereto and I have the authority and consent of the respondents to swear to this affidavit. 2. That the respondents have been served with the applicant's Motion on Notice for the Enforcement of the Applicant's Fundamental Human Rights - right to personal liberty/ dignity, right to fair trial and right to own property and the respondents are opposed to the motion. 3. That the applicant's Motion on Notice for the Enforcement of the Applicant's Fundamental Human Rights - right to personal liberty/ dignity, right to fair trial and right to own property is vexatious, without merit and an abuse of court process. 4. That though the constitution guarantees human rights to all persons, the Constitution also provides that human rights are not absolute, but rather subject to public interest and the security of the state. 5. That though it is true that the rights to personal liberty and the right to own property are inalienable, they may be subject to a lawful warrant of arrest or lawful sentence. 6. That the applicant was at all times relevant to the instant motion, a soldier stationed at the 10 Mechanized Battalion, Wa, and was thus subject to the laws and regulations of the Ghana Armed Forces. 7. That in February, 2021, the applicant was nominated to attend a state-funded Store man General Duties BIl course at the School of Ordnance in Accra, as part- of his obligations as a Soldier of the Ghana Armed Forces. 8. That during the course, a complaint was lodged against the applicant by one Freda Susuawa of Ashaiman, that he had borrowed various sums of money which he refused to pay back. Upon receipt of the complaint, the Ghana Military Police Headquarters (GMP HQ) informed the 10 Mechanized Battalion of the conduct of the applicant. 9. That the applicant reported to his unit on the 14th of June, 2021 and was immediately called upon by his Commanding Officer for an interview with regard to the report made against him. 10. That during the interview with the Commanding Officer, it was discovered that the applicant was staying in town (outside the barracks) without authority. 11. That the Commanding Officer ordered the applicant to move into the barracks immediately to assist with investigations concerning the report made against him but the applicant left the Unit and did not move into the barracks nor did here turn to the Unit. 12. That on the 15th of June, 2021, an AWOL (Absent without leave) message was sent to all units and efforts were made to reach the applicant or his next of kin, but to no avail. 13. That a Board of Inquiry into his AWOL was convened on 13th August, 2021 by his Commanding Officer and endorsed by the General Officer Commanding, Northern Command. 14. That pursuant to this, the Board of Inquiry made findings and the Chief of Army Staff issued directives endorsing the findings of the Board of Inquiry and indicating that disciplinary action should be taken against the applicant when apprehended. He further ordered that the applicant should be declared illegally absent and presumed to be a deserter. Also, that the applicant should be struck off the strength of his Unit with effect from 14th June, 2021. (Exhibited and marked "1" is a copy of the directives issued by the Chief of Army Staff). 15. That by the illegal absence of the applicant and the order of the Chief of Army Staff for the applicant to be struck off the strength of his Unit, the applicant ceased to perform any duties for the Ghana Armed Forces and was therefore not entitled to any remuneration from the Ghana Armed Forces. 16. That on the 3rd of October, 2021 the applicant while illegally absent was finally apprehended at Anloga Junction in Kumasi by the Ghana Police based on several reports of defrauding by the applicant including reports on the applicant's involvement in armed forces recruitment fraud. 17. That Ghana police upon investigation discovered that the applicant was a soldier and so they reached out to the Ghana Armed Forces and the applicant was handed over to the Military Police of the 4 Battalion Unit (4BN) where he was held in custody awaiting disciplinary action. (Exhibited and marked "2" is a copy of the report on the applicant by the Commanding Officer of the 4BN Unit). 18. That from the 14th of June, 2021, when the applicant left his Unit until his arrest on the 3rd of October, 2021, the applicant had failed to report at the barracks, neither did he communicate any notice of his absence to his Commanding Officer or his Unit. 19. That the applicant was later transferred to his Unit, the 10 Mechanized Battalion, for disciplinary action to be taken against him, and he was held in the Unit's Guardroom pending his trial by a General Court Martial. 20. That the applicant having gone AWOL, and caused the Ghana Armed Forces great strive in procuring his arrest, was at all times considered a flight risk for which reason he was held in custody pending his trial by the General Court Martial. 21. That the 10 Mechanized Battalion, Wa and the Northern Command of the Ghana Armed Forces, put in place the necessary measures in the request for a Judge Advocate to constitute the General Court Martial. 22. That Justice Jerome Noble Nkrumah, a Justice of the High Court was initially appointed, however due to certain administrative and logistical challenges, the trial of the applicant could not commence. 23. That as result of this challenge, a further request was made to the Chief Justice to appoint a new Judge Advocate preferably based in Tamale to ensure the constitution of the General Court Martial for the proceedings against the applicant to commence promptly. (Exhibited and marked "3" is a copy of the letter requesting for a new Judge Advocate) 24. That presently, a Judge Advocate in the person of His Lordship Justice Richard Mac Kogyapwah has been appointed and all the measures have been put in place as well as a date fixed for the trial of the applicant in the month of April, 2023. (Exhibited and marked "4" is a copy of the letter from the Judicial Secretary appointing a new Judge Advocate) 25. That pursuant to an application by the applicant to the High Court Wa, the applicant was granted bail by the court and he was subsequently released on the terms set down by the court. 26. That at all times relevant to the applicant's arrest, the applicant was treated in a dignified manner by the 3rd respondent and the Ghana Armed Forces as a whole. 27. That any delays caused in the detention of the applicant was as a result of administrative processes which were outside the control of the respondents. 28. That in the circumstance, the applicant's right to personal liberty/dignity, right to fair trial and right to own property have not been violated by the respondents as he alleges. Therefore, the applicant is not entitled to the reliefs set out in his affidavit in support of the motion. Wherefore, I depose to this affidavit in opposition, praying that the applicant’s motion for enforcement of the fundamental human rights be dismissed as without merit. The applicant filed supplementary affidavit and I hereby reproduce same. 1. That I am the Applicant herein and Deponent hereto. 2. That the facts deposed to in this affidavit are within my personal knowledge and belief or information from my solicitor which I verily believe same to be true. 3. That this affidavit is in response to the affidavit in opposition filed by the Respondents on 5/4/2023. 4. That I deny paragraphs 3 of the Respondents' affidavit in opposition to my application. 5. That I admit paragraphs 4 and 5 of the affidavit in opposition save to say that it is the same Constitution that provides conditions under which a person can submit an application for enforcement of his or her fundamental human rights. 6. Paragraph 6 of the affidavit in opposition is admitted save that the laws and regulations of the Armed Forces are equally subject to the constitution of Ghana being the supreme law of Ghana. 7. Paragraph 7 of the affidavit in support is admitted. 8. Paragraphs 8 and 9 are admitted save to say that the allegations leveled against me by the said lady were false and had no bearing whatsoever and howsoever on my professional duties as a soldier. 9. Paragraph 10 of the Affidavit in Opposition is denied and I say that I and other soldiers were given authorization by the Command of my Unit to rent outside as there was no accommodation at the Barracks. 10. Paragraphs 11, 12 and 13 of the affidavit in opposition are denied and I say that granted such depositions are even true there is no military rule or law that gives authority to the Respondents to detain me beyond ninety days. 11. That Exhibit 1 of the Respondents is dated June 2021 whereas Respondents claimed that service inquiry was conducted on my conduct in August 2021 which means that the Chief of Army Staff approval of the Service inquiry was even given before August 2021. 12. Paragraphs 14 to 18 of the Affidavit in support are denied and I say that assuming such allegations were even true no regulations or statute of the Armed Forces give authority to the Respondents to detain me beyond ninety days. 13. In answer to paragraph 19 of the Affidavit in Support I say that I was further transferred to my unit for further detention beyond the approved ninety days and nothing else. 14. Paragraphs 20 and 21 of the Affidavit in opposition are denied. 15. That in answer to paragraphs 22 to 24 of the Affidavit in opposition I say that the administrative lapses being cited by the Respondents cannot justify the constitutional and statutory breaches. 16. That I am advised by counsel and I verily believe same to be true that because of the anticipated administrative lapses that is why section 61 of the Armed Forces Act, Act 105 dictates in mandatory terms that a soldier in detention for more than ninety days without trial should be freed, but the Respondents deliberately kept me in custody over 500 days. 17. That even upon securing a court order for bail, the Respondents disrespected the court order admitting me to bail until I repeated my application for habeas corpus before the High Court Tamale. 18. Paragraph 25 of the affidavit in opposition is admitted save that Respondents detained me beyond the recommended ninety days without any justification and also stopped my salary without any hearing? 19. Paragraphs 26 to 28 of the affidavit in opposition are denied and I say that even the administrative procedures contained in the Armed Forces Act that mandates that within every 8 dates a report be sent on why there is delay in trial was never complied by the Respondents. In any case administrative lapses cannot be justification for constitutional violations. 20. Wherefore, I depose to this Affidavit in support of the application and praying the Court to grant me the reliefs as indorsed. On 6th June, 2023 the court formed an opinion that the application can be decided on affidavit evidence and as such ordered the applicant counsel to file his written address on or before 26th June, 2023. Counsel for the respondents was ordered to file her address two weeks after service of the applicant written address on her. Counsel for the applicant filed his written address on 15th June 2023. The court extended time for counsel for the respondents before the written address was eventually filed on 19th July, 2023. The law on enforcement of fundamental human rights. The applicant has invoked Article 33 of the 1992 constitution as well as Order 67 of High Court (Civil Procedure) Rules, 2004 as amended (CI. 47) for the enforcement of his fundamental human rights. Article 12 (1) of Chapter 5 of the 1992 Constitution of Ghana states as follows. “The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, were applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.” From this article it is the constitutional duty of the Executive, Legislature and the Judiciary and all other organs of government and agencies including the 1st, 2nd 4th and 5th respondents to respect and uphold the fundamental human rights and freedoms enshrined in chapter 5 of the 1992 constitution. The Courts are mandated to enforce these fundamental human rights. These rights are not absolute as the same 1992 constitution set limitations on these rights. I shall come back to the limitations in the course of this judgment. It must be noted that Article 33 (1) and (2) of the 1992 Constitution of Ghana further gives the High Court authority to protect the rights of people. I hereby quote this very important constitutional provision. Article 33 (1) and (2) of 1992 Constitution is titled; Protection of rights by the Courts (1) “Where a person alleges that a provision of this constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relationship to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress. (2) The High Court may, under clause (1) of this article, issue such directions or orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled.” It is this provision of the constitution and Order 67 of the High Court (Civil Procedure) Rules 2004 (C. I. 47) as amended that gives the High Court the original jurisdiction to hear cases where there is a breach or likelihood of a breach of the fundamental human rights of persons as enshrined in Chapter 5 of the 1992 Constitution for redress. In determining such breaches or likelihood of a breach of these fundamental human rights, the High Court may issue such orders or writs in the nature of habeas corpus, certiorari, mandamus prohibition and quo warranto as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions on the fundamental human rights. See also Article 141 of the 1992 constitution on the supervisory jurisdiction of the High Court over all lower courts and lower adjudicating authorities. The High Court is thus clothed with jurisdiction for the enforcements of the fundamental human rights pursuant to Article 33(1) of the 1992 constitution of Ghana. See also Order 67 Rule 1 of C. I.47 on the jurisdiction of this Court in hearing applications for the enforcement of fundamental human rights in relation to persons under article 33 (1) of the 1992 constitution of Ghana. “A person who seeks 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.” It must be noted that the Court deals with evidence and as such a party who seeks a remedy from the courts must be prepared to support his case with evidence. Burden of Proof In originating motion on notice of this nature, the Applicant succeeds on the strength of his case as deposed to in his affidavit evidence and proved on the preponderance of probabilities. The standard of proof is no less than as set out in sections 11 (4) and 12 of the Evidence Act 1975 (NRCD 323). It is the applicant who bears the burden of proof to provide sufficient evidence on the balance of probabilities to avoid a ruling against him. In the case of ACKAH v PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728@736 the Supreme Court stated as follows: “It is basic principle of law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quantity of credibility short of which his claim may fail.” Under section 11(1) of the Evidence Act 1975 (NRCD 323) the burden of producing evidence means obligation on a party to introduce sufficient evidence to avoid a ruling against him. See YORKWA v DUAH (1992-93) GBR 278 CA “Under sections 11, 12 and 13, particularly section 179(1) of the Evidence Act 1975, the “burden of producing evidence” means the duty or obligation lying on a litigant to lead evidence. In other words, these latter sections cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led.” See also ZABRAMA v SEGBEDZI [1991] 2GLR 221 Kpegah stated as follows: “… A person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” In MAJOLAGBE v LARBI AND OTHER [1959] GLR 190 it was held that a denied averment must be proved positively by providing cogent evidence and not merely repeating the averments on oath. Issues After going through the case of the parties, the following issues are germane and I hereby set them down for determination. i. Whether the Armed Forces acting through its officers, breached the fundamental human rights of the applicant or not. ii. Whether or not the respondents were justified in law assuming there was breach of the fundamental human rights of the applicant. iii. Whether the applicant is entitled to damages or not. iv. Whether or not the respondents violated the applicant’s right by stopping payment of the applicant salary. I have read the entire arguments filed by counsel for the parties and I see the application as bordering on the laws governing the Armed Forces in its operations and whether the Armed Forces Act was breached. Though the 1992 constitution make specific provisions for the enforcement of the fundamental human rights and the law does not discriminate in its application, when it comes to the men and women in uniform especially officers of the Armed Forces, there are specific laws, rules and regulations that are applicable to them and govern their movements, conduct, way of life and discipline. The constitution of Ghana recognize the need to have separate laws to regulate the conducts of the military men and women and to prescribe particular code of conduct to regulate their affairs. The establishment of military courts and tribunals to deal with disciplinary issues and offences committed by the military men in the course of their duty is also recognized by the constitution. Article 19 (19) and (20) of the 1992 constitution recognize the authority of Parliament in enacting laws for the establishment of military courts or tribunals for fair trial of offences on military law committed by persons subject to military law. The said article reads: (19) “Notwithstanding any other provision of this article, but subject to clause (20) of this article, Parliament may, by or under an Act of Parliament, establish military courts or tribunals for the trial of offences against military law committed by persons subject to military law. (20) Where a person subject to military law who is not on active service, commits an offence which is within the jurisdiction of a civil court, he shall not be tried by a court martial or military tribunal for the offence unless the offence is within the jurisdiction of a court- martial or other tribunal under any law for the enforcement of military discipline.” A careful reading of Article 19 (19) of the 1992 constitution creates an exception to trial of all persons in the regular courts. The exception is that all persons who are subject to military law may be tried in military courts or tribunals for offences against military law. Thus where a military officer commits an offence which is against military law, that officer may face trial in a court martial or military tribunal. This provision of the constitution recognize the need for military men (officers) who are subject of military law to be treated differently in the application of military law and regulations as established under an Act of Parliament. It must be noted that the Armed Forces Act 1962 (Act 105) is an Act of Parliament and as such the provisions of the Act are applicable under 1992 constitution. I will now turn my attention to the Armed Forces Act 1962 (Act 105) and find out whether, the respondents in incarcerating the applicant for over 500 days breached Armed Forces Act. In doing so I must caution myself that, the application before me is not to try the applicant or go into the merits or otherwise of the purported charges levelled against the applicant since I do not have jurisdiction so to do. As it stands now, the respondents claim is that the applicant’s name has be struck off strength of his unit. This military parlance means that the applicant is no longer a serving military officer as at 14th June 2021. The respondents further claim that the applicant has been charged and he is facing trial at the court martial. There is no iota of doubt that prior to the applicant release from the army he was a serving military officer. The applicant and the respondents admit this fact and as such, as a serving military man, the applicant was subject to the Code of Service Discipline in the military under the Armed Forces Act, 1962 (Act 105). Though the applicant was purportedly released from the army on 14/06/2021 per the Armed Forces Act, the applicant was subject to the Code of Service Discipline under Act 105 hence the decision of the respondents to cause the applicant to face court martial. See section 12 of Act 105. Section 12 of Act 105 states as follows; 12. Persons subject to the Code of Service Discipline (1) The following persons, are subject to the Code of Service Discipline: (a) an officer and a soldier of each Regular Force; (b) an officer and a solider of each Regular Reserve, Volunteer Force and Volunteer Reserve when that officer or soldier is (i) undergoing drill or training whether in uniform or not, (ii) in uniform, (iii) on duty, (iv) on continuing, full-time military service, (v) on active service, (vi) in or on a vessel, vehicle or an aircraft of the Armed Forces, or in or on defence establishment or work for defence, (vii) serving with a unit or any other element of a Regular Force, or (viii) present, whether in uniform or not, at a drill or training of a unit or any other element of the Armed Forces; (c) subject to the exceptions, adaptations and modifications that the Council, with the prior approval of the President, may by regulations prescribe, a person who, pursuant to this Act, is attached or seconded as an officer or a soldier to one of the Armed Forces; (d) a person, not otherwise subject to the Code who (i) is serving in the position of an officer or a soldier of a force raised and maintained out of the Republic and commanded by an officer of the Armed Forces; (ii) accompanies a unit or any other element of the Armed Forces that is on service in a place; (iii) in respect of a service offence committed or alleged to have been committed by that person, is in civil custody or in service custody; or (iv) while serving with the Armed Forces under an engagement, has agreed to be subject to the Code. (2) A person who is subject to the Code under subsection (1) at the time of the alleged commission by that person of a service offence is liable to be charged, dealt with and tried in respect of that offence under the Code, although that person may have, since the commission of that offence, ceased to be a person mentioned in that subsection. (3) Where a person who has committed a service offence, ceases to be a person mentioned in subsection (1), that person shall, for the purposes of the Code, be deemed to have the status and rank which that person held immediately prior to the time when that person ceased to be a person mentioned in that subsection. (4) Subsection (3) applies for the period during which under the Code that person is liable to be charged, dealt with and tried. (5) Subject to subsection (6), a person who is alleged to have committed a service offence may be charged, dealt with and tried only within the Armed Force in which that person was commissioned or enrolled. From these provisions, irrespective of the applicant status as at the time of filing this application, the applicant was still under the command and control of the Armed Forces hence any detention at that stage whether lawful or unlawful was at the behest of the 1st, 2nd, 3rd and 4th respondents. The law that gives the 1st to 4th respondents authority to incarcerate persons under military command who are serving officers or men of the Armed Forces and awaiting trial or whose trial have delayed for a number of days is section 61 of Act 105 and it states follows; 61. Report of delay of trial (1) Where a person triable under the Code is placed under arrest for a service offence and remains in custody for eight days without a summary trial having been held or a court-martial for that person’s trial having been ordered to assemble, a report stating the necessity for further delay shall be made by that person’s commanding officer to the authority who is empowered to convene a court-martial for the trial of that person, and a similar report shall be forwarded in the same manner every eighth day until a summary trial is held or a court- martial is ordered to assemble. (2) A person held in custody in the circumstances mentioned in subsection (1) who is continuously so held for a period of twenty-eight days without summary trial having been held or a court-martial having been ordered to assemble, is entitled to send to the President at the expiration of that period or to any other authority that the President may appoint in writing for that purpose, a petition to be freed from custody or for the disposal of the case. (3) A person held in custody in the circumstances mentioned in subsection (2) shall be freed when a period of ninety days continuous custody from the time of that person’s arrest has expired, unless a summary trial is held or a court-martial is ordered to assemble. (4) A person who has been freed from custody pursuant to subsection (3) shall not be subject to re-arrest for the offence with which that person was originally charged, except on the written order of an authority that has power to convene a court-martial for that person’s trial. (5) This section is subject to the operation of article 19 of the Constitution. Under section 61 of Act 105, the maximum number of days a person under military law can be detained continuously by the military without trial is ninety (90) days. By section 61 (3) of Act 105 the person held in custody shall be freed when a period of ninety days continuous custody from the time of that person’s arrest has expired, unless a summary trial is held or court-martial is ordered to assemble. According to paragraph 16 of the respondents’ affidavit in opposition, the applicant was arrested on 3rd October, 2021 and handed over to 4BN Unit Kumasi and later transferred to the applicant’s Unit the 10 Mechanized Battalion Wa for disciplinary action. The respondents admitted at paragraph 25 of their affidavit in opposition that the applicant was granted bail by the High Court, Wa and he was subsequently released. In paragraph 27 of the respondents’ affidavit in opposition the respondents further opined that the delays caused in the detention of the applicant was as a result administrative processes which were outside the control of the respondents. These depositions made by the respondents corroborates the applicant case that he was detained on the orders of the military from 4th October, 2021 till he was released on 16th February, 2023. The period of incarceration far exceeded the 90 days permitted by the Armed Forces Act. The law is that, a party’s evidence against his own interest must be held against him. SEE YAKUBU v YAKUBU [2013] GMJ 97 CA TONADO ENTERPRISE & ORS v CHOU SEN LIN [2007-2008] SCGLR 135 The respondents’ admissions on the unlawful detention of the applicant will be held against them. The respondents did not deny or challenge the averments of the applicant to the effect that 1st, 2nd, 3rd and 4th respondents caused him to be incarcerated for over 500 days. The position of the law is that when an adversary makes an admission that is advantageous to the other party there would be no need by that party to prove that material fact. See the case of; In Re-Asare Stool: Nikoi Olai Amontia (substituted for by Tafo Amon II) v Akotia Oworsoika iii (substituted by Layea Ayiku III) [2005-2006] SCGLR 637 @651. Counsel for the respondents truthfully admitted in her written submissions at page 12 in her own words that; ‘the period of incarceration of the applicant without doubt was extended beyond the ninety (90) days period allowed under section 61 of the Armed Forces Act.’ With these admissions, the applicant has discharged the burden of proof to lead evidence on the preponderance of probabilities that he was incarcerated for more than five hundred days (500) in the guardrooms of the 4BN Kumasi; 10 Mechanized Battalion guardroom Wa and Kamina Barracks guardroom in Tamale without trial and it is a clear case of abuse and violation of the Armed Forces Act 1962. Counsel for the respondent at page 21 of her written address submitted truthfully that: “My Lord from the extensive discussion of the facts and the law applicable to the case above, we believe that the respondents have made it clear that the only breach that occurred was with respect with the unlawful detention of the applicant. As earlier conceded, the respondents went beyond the time period allowed to hold a person in custody under the 1992 constitution as well as in the Armed Forces Act, which determines the rules to govern military servicemen. Though there has been a violation of the applicant’s right, the courts in past and recent cases have been cautious in the award of damages so not to set a wrong precedent in such public law proceedings.” This further confirm the fact that the respondents have conceded to the applicant case that he was unlawfully detained by the officers of the armed forces and the 1992 constitution of Ghana. I must add that not only was the applicant continuous incarceration beyond the ninety (90) days unlawful, it was barbaric as well. The conduct of the 1st, 2nd 3rd and 4th respondents in this unlawful act is in flagrant disregard of the law and due process and is so despicable. From the respondents own exhibit 2 dated 6th April 2022, the respondents concede in paragraph 2 that the applicant had as at that time already spent 185 days and was still under close arrest awaiting to make his first appearance at the civil court. Counsel for the applicant on the 3rd October 2022 petitioned the President of Ghana about the applicant continuous unlawful incarceration pursuant to section 61 (1), (2) and (3) of Act 105 for the release of the applicant from military custody but the respondents did not budge though they were served with copies of the petition. The applicant filed Habeas Corpus application to compel the respondents to produce the applicant before the High Court. On the first day the applicant was not produced and the court adjourned the matter and ordered the respondents to produce the applicant on the following day but the respondents did not comply with the order of the court. Even when the High Court, Wa granted the applicant bail and ordered the 3rd respondent herein to produce the applicant before the registrar of the court to execute his bail bond, the 3rd respondent refused to comply with the order of the court but rather in concert with the military command caused the applicant to be transferred from 10 Mechanized Battalion guardroom Wa to Kamina Barracks Tamale guardroom to continue with his unlawful incarceration. The applicant having been in custody for over 500 days and upon his transfer to Kamina Barracks Tamale to continue his unlawful detention, caused his counsel to file another Habeas Corpus application against the respondents to produce him before the High Court in Tamale. It was after this second application that the respondents caused the applicant to be released to his lawyer before the return date of the application. The depositions on these averments by the applicant were not specifically denied by the respondents. In fact the court orders on habeas corpus and the order granting the applicant bail were all attached to the application and marked as exhibits D and E respectively. It is worrying when high ranking officers in the Armed Forces who are supposed to know better put the entire Armed Forces in this kind of shameful and unlawful conduct. It must be noted that section 61 of Act 105 is subject to the provisions of Article 19 of the 1992 constitution of Ghana and that the military command is also subject to the laws of Ghana. How can the respondents describe the continuous incarceration of a military man whose name has been struck off strength of his unit as mere administrative error? I have no doubt in my mind that the behavior of the 1st, 2nd, 3rd and 4th respondents in respect of the applicant case is just not unlawful but very shameful as well. I hereby reject the respondents’ defence that keeping the applicant in custody for over 500 days was administrative challenge. That defence is shambolic and unwarranted. Whatever infraction of the law committed by the applicant did not deserve such inhumane treatment and I hereby condemn same in no uncertain terms. Article 14 of the 1992 constitution stipulates that every person shall be entitled to his personal liberty and a person shall not be deprived of his personal liberty except in accordance with law. One of such restrictions imposed on personal liberty guaranteed by article 14 of the 1992 constitution is section 61 of Act 105. The respondents under the Act could impose a maximum term of 90 days in custody without trial if due process is followed under Armed Forces Act. The 3rd respondent and the military command of the Armed Forces threw all caution to the wind and ignored the law and unlawfully kept the applicant in custody for over one year three months without trial. During the continuous unlawful violation of the applicant human rights, the respect for the dignity of the applicant pursuant to Article 15 (1) and (2) was also violated. The inhumane treatment of staying in the military guardroom without trial or any due process, the mental torture and the psychological effect and trauma on the applicant alone to say the least is degrading and unpardonable. Article 15 (1) and (2) states as follows: 1. The dignity of all persons shall be inviolable. 2. No person shall, whether or not he is arrested or detained, be subjected to a) Torture or other cruel, inhumane or treatment or punishment; b) Any other condition that detracts or is likely to detract from his dignity and worth as a human being. The respondents’ case is that as at June 2021, the applicant was no longer a serving military man and as such he could not have been paid or earned any emolument. Detaining the applicant in military guardroom for over one year three months unlawfully and without salary or any other benefit to him cannot be said to be dignifying. At least releasing the applicant after the expiration of the 90 days without any due process could have reduced the inhumane treatment meted out to him. Denying the applicant the right to fair trial by not charging him within reasonable time in accordance with Act 105 as posited supra violated Article 19 (1) of the 1992 constitution. The respondent did not put the applicant before a court martial for him to be tried within the stipulated 90 days of Act 105. As at the time the applicant filed the application he had not been put before any military tribunal or court martial on the allegations leveled against him. Putting the applicant in unlawful custody without trial for over one year three months to say the least had no justification in law and same is against good conscience equity and morality. I hereby make a finding of fact that, the 1st, 2nd, 3rd and 4th respondents in concert with the military command of Ghana breached the applicant’s fundamental human rights to personal liberty, respect for human dignity and fair trial pursuant to articles 14 (1) and (4), 15 and 19 of the 1992 constitution of Ghana respectively. I resolve issue one in favour of the applicant and pronounce that the applicant has successfully proved relief one (1) on the balance of balance of probabilities that his continuous incarceration for over one year without trial violated the applicant fundamental human rights under the 1992 constitution of Ghana and the Armed Forces Act. I have carefully refrained from making a pronouncement on the constitutionality or otherwise of section 61 of Act 105 as against Article 14 (3) (b) of the 1992 constitution since this court has no jurisdiction so to do. I will hereby not eat the forbidding fruit no matter how it looks attractive. Having resolved issues one and two in favour of the applicant, I will now turn my attention to the third issue on whether the applicant is entitled to damages. Article 14 (5) of the 1992 Constitution states as follows: “A person unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person”. I have already ruled that the applicant continuous incarceration at the instance of the respondents beyond the 90 days was unlawful. The continuous detention of the applicant was perpetrated by the 1st, 2nd, 3rd and 4th respondents and the military command in the course of their duty. The conduct of the said respondents were in the course of exercising their lawful duty and as such, the Republic of Ghana as the employer of the respondents who perpetrated this breach of the law is vicariously liable. I will however recommend that, the law should be amended in such a way to make people who are put in authority answerable personally to such claims so that they do not get away from their unprofessional conduct leading to judgment debts for the tax payer to pay. Such people in authority are to be surcharged for such infractions in order to bring sanity into state institutions and other statutory bodies. The applicant has invited the court per relief “c” to award damages of Two Million Ghana Cedis (GHs 2,000,000.00) against the respondents. I cross checked from the face of the application on the fees the applicant paid when he filed the application. I noticed that the applicant did not make any payment on the GHs 2,000, 000.00 that he sought for in this application as alternative relief. The fees the applicant paid vide receipt numbers 0199722 and 0199689 are as follows: 1. Motion-----GHs 50.00 2. Exhibits ---GHs 50.00 3. Service --- GHs 250.00 Total ---- GHs 350.00 CIVIL PROCEDURE (FEES AND ALLOWANCES) AMENDMENT RULES C. I.86 rules govern the required scale of fees to be paid on processes filed and no fees was paid on the GHs 2,000,000.00 as alternative relief of general damages by the Applicant. This application being originating motion on notice which serves as a complete action on its own just as writ of summons, the applicant by law has initiated action for the enforcement of his fundamental human rights and for damages for breach of his fundamental human rights. The applicant was mandated by law to pay the required fee on all the reliefs that he sought. Failure to pay the required fee may be fatal to the applicant case on the alternative relief. It is the duty of the filing clerk to charge the required fee so the State is not short changed. It is equally the duty of the applicant to ensure that the right filing fee is paid for processes filed in court in order to get a benefit from it. I hereby order that the applicant pays the required filing fee of the reliefs being claimed by him forthwith before he can access any benefit from this judgment Again, the applicant alternative claim in relief “c” for award of punitive damages of GHs 2,000,000.00 against the respondents and in favour of the applicant for the abuse of the fundamental human rights of the applicant moved the alternative relief for GHs 2,000,000.00 from general damages to special damages of which, the applicant is mandated by law to prove to the last pesewa. The applicant is obliged by law to specifically plead same in his affidavit with particulars of the special damages to put the respondents on notice to either admit or deny in their affidavit in opposition. Failure to do so is fatal. See Clipper Leasing Corporation v Attorney General [2016] 100 GMJ 1 SC David Agbeli v Merchant Bank Ghana Ltd [2021] 173 GMJ SC Prah & Anor v Okai [1966] GLR 560 In the instant case aside the mere mention of the figure, the applicant did not lead any affidavit evidence on why he is entitled to special damages of GHs 2,000,000.00 or particularize the said amount as to how he came by that figure. Besides there is no exhibit attached to the application on any loss incurred by the applicant on this alternative relief. It is therefore not enough for the applicant to endorse his application with monetary figure without giving particulars specifically to prove it. See Boham v Evonna [1992] 1 GLR 287. Met Capital Group Ltd v Guaranty Trust Bank Ghana Ltd and Anor. [2021] 172 GMJ 682 SC From the above rendition, I am unable to grant the applicant alternative in relief c for the award of Two Million Ghana Cedis (GHs 2,000,000.00) as punitive damages alternative to the claim for general damages. This notwithstanding, the applicant is entitled to general damages for the breach of his fundamental human rights in accordance with Article 14 (5) of the 1992 constitution. Unlike special damages where the Applicant has to specifically prove same by particularizing to show the nature and extent of damages claimed, general damages are at large and usually assessed by the judge looking at the circumstances of the case, the nature of injury suffered and the future repercussions of the injury suffered by the applicant. In Delmas Agency Ghana Ltd v Food Distributors Int. Ltd [2007-2008] 2 SCGLR 748 at 759 Adinyira JSC [Page 759] the Supreme Court stated that; “The authorities are clear on the distinction between special and general damages. I myself had occasion to dilate on it in the case of Yungdong Industries v Ro Ro Services [2005-2006] SCGLR 816 at 839. In the Court of Appeal, learned counsel for the plaintiffs referred to the dictum of my noble and respected senior, Adade JSC, in [page 760] the case of Royal Dutch Airlines (KLM) v Farmex [1989-90] 2 GLR 623 at 633, SC where he said: Chapter 12 | Law of contract 327 “special damages must be pleaded and specifically proved. But the rule does not imply that if one claims damages only, one cannot lead evidence of specific damages as a foundation for an award of general damages. After all, in coming to a decision as to how much general damages to award, the court needs some guidance as to financial loss.” …“General damages is such as the law will presume to be the probable or natural consequences of the defendant’s act. It arises by inference of law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only general damages are awarded. Where a plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not he is not entitled to anything unless general damages are also appropriate.” Counsel for the respondents after conceding that the applicant fundamental human rights was breached by the respondents with respect to the unlawful detention of the applicant beyond the time period allowed by the constitution and the Armed Forces Act, urged this court not to award punitive damages against the respondents. Counsel referred the court to a number of decided cases including AWUNI v WAEC [2003-2004] SCGLR 471 on guidelines for assessment of damages or compensation in the enforcement of fundamental human rights action. Counsel for the respondents urged this court to adopt the approach of the court to be modest in the award of damages against the public purse. After careful consideration of all matters including the pain the applicant suffered in unlawful custody for over one year three months coupled with the restrictions on his movement and his right to associate, I hereby award the applicant general damages of One Hundred Thousand Ghana Cedis (GHs 100, 000.00) against the respondents. I am unable to grant the applicant relief “b” because the applicant failed to prove it on preponderance of probabilities. The applicant in a letter attached to exhibit B admitted in that document that, he went on AWOL (absent without leave) and explained the circumstances. The information on the entire matter is scanty and I cannot make any findings of fact on same in support of the applicant case. It is also not the duty of the court to fish for evidence. The proceedings on the Board of Inquiry convened which recommended the applicant dismissal was not attached to the application. Though the dates on the documents exhibited by the respondents seem to be challenged, I am unable to go into the circumstances leading the applicant dismissal since the evidence before me is scanty. There is no evidence that the police have dropped the case made against the applicant. It is the duty of the applicant to prove that, the blocking of his salary is unlawful and unwarranted and failure to do so as I have found is fatal to his case on relief “b” and I hereby dismiss relief “b”. Cost of Twenty Thousand (GHs20, 000.00) is awarded the applicant against the respondents. JUSTICE ERIC ANSAH ANKOMAH (JUSTICE OF THE HIGH COURT, TAMALE) 41