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18.03.2009 General News

Captain Nikyi vrs Chief of Defense Staff and two others

By Charles Takyi-Boadu - Ghanaian Chronicle

ARMY OFFICER BATTLES WITH SUPERIORS… As military authorities fail to release him

Lawyers for the military officer who has been arrested and accused of misappropriating an amount of $30,000 meant for Peacekeeping operations in the Democratic Republic of Congo are finding it extremely difficult to execute the bail granted him by an Accra High Court.

Though the High Court, presided over by his Lordship Justice Dery granted Captain Daniel Nikyi, the officer in question a bail in the sum of GH ¢200,000.00 on March 3, 2009, with two sureties to be justified, the military authorities have defied the court order.

They have instead filed a counter application for a review of the court order.

In an affidavit in support of motion for review of orders and stay of execution, the

Minister of Defense and the Chief of Defense Staff, who were represented by Lt. Col. Fiawo and Lt Col. A.K Awuah, noted that if the court was seized with the defendants/applicants affidavit in opposition and the relevant provisions in the Armed Forces Act which provide that an accused person may be kept in close custody during the pending of a case against him before a Court Martial, in connection with custody of accused persons, it may not have admitted the plaintiff/respondents into bail.

They noted that the admission of the plaintiff/respondent into close custody during the trial of his case by a Court Martial is not inconsistent with the 1992 Constitution.

It was, therefore, the case of the defendants that the execution of the bail order of the court will affect the proceedings of the Court Martial currently ongoing in terms of the administration of the applicant/respondent.

They therefore prayed that the order of the court on March 3, 2009 be reviewed and execution of same stayed.

On their part, lawyers for Captain Nikyi averred that in so far as an affidavit in opposition has been filed after the determination of the matter before the court, the said affidavit in opposition is no legal effect.

They cited the applicants for contempt of court by failing to first obey the order to grant their client bail before filing the instant application for a review and stay of execution of the order dated March 3, 2009. They contended that they cannot be heard before the court unless and until the applicants have purged their contempt by obeying the order granting him bail.

Meanwhile the court has set Tuesday, March 24, 2009, to determine whether or not to review its bail order or grant the application filed by the Minister of Defense and the Chief of Defense Staff.

Captain Nikyi who is with the Forces Pay Office (FPO) at military headquarters in Burma Camp has been detained for close to five months.

He is being held in military custody on five counts of neglect to the prejudice of good order and discipline contrary to Section 54 Armed Forces Act (AFA) 1962 and fraudulently misapplying contrary to Section 52 (1) (a) of AFA 1962, among others.

Captain Nikyi is further accused of failing to produce vouchers and receipts to cover return air ticket in respect of GHANBATT's Medal Day Delegation AND GHANBATT 13 CO's Pre-deployment Renaissance to the tune of US $12, 036.00 whilst he was a Paymaster of MONUC GHANBATT 12 in the Democratic Republic of Congo between July 2007 and January 2008 and for fraudulently misapplying an amount of US $5,000.00 out of the GHANBATT's Welfare Bus maintenance vote and having exceeded the approved estimates for MONUC GHANBATT 12 without authorization, contrary to paragraph 2 of GHQ/8236/5 (DFC) dated July 4, 2007.

Captain Nikyi is further alleged to have failed to submit vouchers and receipts to cover excess expenditure during his tenure as Paymaster and fraudulently misapplying an amount of US $269, 793.37 belonging to the Ghana Armed Forces.

Meanwhile, the Human Rights Division of an Accra High Court presided over by His Lordship Justice Derry has granted the applicant a bail in the sum of GH ¢200,000 with two sureties to be justified.

Counsel for Captain Nikyi, Andrew Kojo Daniels of JAN chambers who filed an application for bail at the court pleaded for an order seeking to enforce the fundamental human rights of the applicant (Article 14 (4) of the Constitution) pursuant to Article 33 (1) of the Constitution.

In an affidavit in support of the motion against the Attorney General, Minister of Defense and Chief of Staff of the Ghana Armed Forces, the applicant stated that he was placed in close custody with respect to allegations of a disciplinary case and a case of misappropriation of funds concerning the findings of an audit report for the MONUC (GH) imprest account for the period of July 16, 2007 to January 14, 2008.

Though the summary of evidence taken from various witnesses could not establish a prima facie case against him, coupled with his continuous denial of any guilt of criminal, civil or otherwise in respect of the said allegations, he noted that the authorities still detained him against his will.

In the light of his continued detention, Captain Nikyi filed a petition on January 21, 2009 for his release from close custody. Instead of responding to his petition, the applicant noted that he was on February 11, 2009 served with a summary of evidence, the Convening Order and an Amended Charged Sheet.

In pursuant to Article 14 (4) of the 1992 Constitution, “where a person who is arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this Article is not tried within a reasonable time, then without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial”, Counsel for the accused therefore sought a relief for the immediate release of his client from close custody on bail terms to be determined by court.

It was, therefore, the argument of Counsel that as a citizen of Ghana, his client who was represented in court by his wife was entitled to this relief, “given especially that we are all equal before the supreme law of Ghana being the Constitution which presumes every person innocent until proven guilty,” he emphasized.