IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
EX-CHIEF INSPECTOR ADAMS KYEI - (Plaintiff/Appellant)
INSPECTOR GENERAL OF POLICE - (Defendant/Respondent)
DATE: 15 TH MARCH, 2018
CIVIL SUIT NO: H1/127/2017
JUDGES: M. OWUSU (J.A.) – PRESIDING, HONYENUGA (J.A.), TORKORNOO (J.A.)
AGYEI MENSAH ALFRED FOR THE PLAINTIFF/APPELLANT
CECIL ADADEVOR FOR DEFENDANT/RESPONDENT
MARIAMA OWUSU, J.A.:
On 7th of April, 2016, the High Court (Financial and Economic Crimes Court 1) Accra, dismissed the plaintiff’s claim as not proved.
In her judgment, the trial High Court Judge stated among other things as follows:
“The totality of the evidence adduced and the exhibits tendered all indicate clearly that the plaintiff was given a hearing and that due process was adhered to. It also confirms that the Service Enquiry was properly held as all the parties were given the opportunity to be heard and were heard. The law requires that a person be given the opportunity to be heard. It does not compel a person to speak hence there is a right to silence or not to speak to a charge or complaint. Once it is evident that a party was given the chance or opportunity to be heard, the law deems that he has been given a hearing.
I have carefully evaluated the totality of the evidence led and come to the conclusion that the dismissal of the plaintiff was not wrongful but in accordance with law.
An evaluation of the evidence adduced indicates that the plaintiff has not discharged the burden of proof on him as required by Section II (1) and (4) of the Evidence Act 1975 (NRCD 323). The plaintiff’s claim fails and judgment is entered for the defendant.”
Dissatisfied with the decision of the High Court, the plaintiff has appealed to this Court on the following grounds:
The judgment is against the weight of evidence;
The court erred in holding that the witnesses and Exhibit ‘1’ confirm that there was a service enquiry adjudicated by Patience Quaye on the alleged stealing and misconduct of the plaintiff;
The court in failing to hold that there was no review of the record of proceedings and finding of the Adjudicating Officer by the Central Disciplinary Board, since Exhibit ‘1’ did not contain record of proceedings as provided for by relevant provisions and the Police Service Instructions which among others required evidence to be taken on oath or affirmation and evidence being recorded in writing;
The Court erred in holding that on the totality of the evidence adduced and the exhibit tendered all indicate clearly that the plaintiff was given a fair hearing and due process was adhered to;
The court erred in holding that the dismissal of the plaintiff was not wrongful but in accordance with the law.
Additional grounds to be filed upon receipt of judgment and record of proceedings.
The reliefs sought from the Court of Appeal is:
That the judgment be overturned and judgment entered in favour of the plaintiff/appellant.
Before dealing with the arguments advanced in support and against this appeal, I will give a brief background of the case.
The plaintiff/appellant (herein after referred to as plaintiff issued this writ of summons claiming:
A declaration that the purported dismissal of the plaintiff from the Police Service is wrongful, null and void and of no legal effect.
An order for re-instatement.
Or in the alternative
Damages for wrongful dismissal
Any other Order(s) as this Court may deem just.
In the 16 paragraph statement of claim which accompanied the writ, the plaintiff averred that, at all material times before this action, he was a Chief Inspector of Police with the Ghana Police Service and was stationed at the Airport Police Station, Accra and has been in the Police Service for almost 23 years. The plaintiff averred further that, he was arraigned before a Disciplinary Board headed by Mrs. Patience A. Quaye to hold formal proceedings into his conduct.
The plaintiff continued that, on the 3rd August, 2011, when the proceedings commenced, he objected when the first witness, a BNI Officer and an uncle of one Christopher Amenyona, the owner of the subject matter of the enquiry was called to testify as to his capacity. This compelled the adjudicating officer to adjourn the case to 18th November, 2011 for ruling. It is the case of the plaintiff that, on 18th January, 2012, he received a police wireless message notifying him of the lifting of the interdiction and was asked to resume duty as normal.
Surprisingly, on the 20th day of July, 2012, he received another document from the Central Disciplinary Board purporting to remove him from the Police Service following a Service Enquiry into his conduct. The plaintiff concluded that the Service Enquiry did not take place as he was not given a hearing.
Consequently, his purported removal from the Ghana Police Service has no legal basis and same offends against the audi alterem partem rule which is a cardinal principle of the rule of natural justice. His petition to the 1st defendant and all other officers connected with the process of his removal from the Police Service has proved futile hence this action.
On receipt of the plaintiff’s writ of summons and statement of claim, the defendants/respondents (hereinafter referred to as defendants) reacted by filing their statement of defence denying plaintiff’s claim.
In particular, the defendants averred that, one Christopher Amenyone who was travelling outside the country in July, 2009, parked his unregistered Toyota Camry Saloon car at the Kotoka International Airport (KIA). However, in December, 2009, when he went to the Airport to check on his car, same was nowhere to be found. One Anthony Golo, a BNI Official and a relative of the owner made his own private investigations which revealed that it was the plaintiff who instructed that the vehicle be towed to the KIA Police Station because same was under criminal investigation.
Mr. Golo therefore petitioned the Inspector General of Police against the conduct of the plaintiff. The petition was referred to the Police Intelligence and Professional Standard Bureau (PIPS) for investigations which initiated investigations into the allegations and the plaintiff was invited to PIPS. After he had been given the petition, the plaintiff submitted a statement. PIPS after its investigations concluded that the plaintiff misconducted himself. Consequently, he was charged with the offence of misconduct and was put before a Service Enquiry.
At the end of the proceedings, the Central Disciplinary Board imposed a punishment of removal from the Service on the plaintiff. The defendants maintained that their action was justified and not arbitrary and therefore the plaintiff is not entitled to any of the reliefs claimed in the statement of claim.
See paragraphs 1 to 17 of the Amended statement of defence filed on the 8th of January, 2015.
At the trial, the plaintiff testified and tendered some documents in proof of his case.
The defendants also called four witnesses in proof of their case.
As stated supra, at the end of the trial, the plaintiff’s claims were dismissed, hence this appeal.
At this stage let me put it on record that, the notice of appeal is not included in the record of appeal even though both counsel made reference to it. By way of case management, I called the Registrar of the Court of Appeal and asked him to make photocopies of the notice of appeal for us either from the mother docket or call counsel for the appellant to make copies for us which he did.
In arguing the appeal, counsel for the plaintiff argued grounds A, B and D together. He then submitted that, the trial court erred when it made a finding that there was a hearing and the plaintiff was given the opportunity to be heard. That due process was followed and the Service Enquiry was properly conducted as Exhibit ‘1’ shows. Counsel argued that the findings made by the trial Judge did not emanate from the testimonies of the witnesses presented and Exhibit ‘1’. This is because a formal proceedings under Regulation 12 requires the recording of evidence given at the Service Enquiry. Exhibit ‘1’ tendered by DW4 is a summary of evidence based on the facts of the case.
Counsel then submitted that this is contrary to Regulation 12 of L. I. 993 as DW4 admitted that after the Enquiry, they typed and submitted the report officially as the hand-written proceedings were a draft. So, after typing them she did not file them. This according to counsel for the plaintiff runs contrary to the intention and meaning of Regulation 12. He continued that the desire of the framers of Regulation 12 is to ensure that the reviewing authority shall be clothed with transcripts of the entire proceedings of a Service Enquiry to enable the reviewing authority to consider the findings and recommendations and make appropriate orders accepting the recommendations, substituting same or otherwise. This would ensure the protection of the fundamental human rights of plaintiff and the application of due process as envisaged by the audi alterem partem rule of natural justice.
Counsel concluded on this point that, what DW4 submitted was a summary of facts of the case and therefore the reviewing body could not have had the opportunity of ascertaining its authenticity or veracity of the proceedings of Enquiry. This is especially so, when the plaintiff contends that the Service Enquiry did not proceed beyond the challenge to the capacity of DW3 when the latter sought to give evidence without a Power of Attorney from the complaint. Based on the foregoing, counsel for the plaintiff submitted that the court erred in accepting the purported “formal proceedings” or narration as a recording of the formal proceedings of the Service Enquiry. Consequently, the Central Disciplinary Board was not seised with formal proceedings as required under L. I. 993 to have accepted the findings and recommendations of DW4 to dismiss plaintiff from the Police Service.
Additionally, the plaintiff was not given the opportunity to cross-examine DW3 neither was plaintiff sworn on oath. Thirdly, the plaintiff was not notified of any sitting when the evidence of DW3 was taken. Consequently, the findings of the court cannot be supported as the document was a fabrication.
In response to the above submissions, counsel for the defendants after going through the evidence of the plaintiff and the witnesses of the defendants and their answers under cross-examination, submitted that since the matter was investigated by PIPS which culminated in the Service Enquiry and its findings were reviewed by the Central Disciplinary Board which imposed a harsher sentence on the plaintiff, the removal of the latter was lawful. Counsel further urged us to go through the entire record to ascertain whether or not the findings of fact by the trial Judge is clearly supported by the evidence on record. He therefore urged us to dismiss the appellant.
In this appeal, the main issue is whether or not the plaintiff was given a hearing at the Service Enquiry as envisaged by the audi altarem partem Rule of Natural Justice.
So the question is, was the plaintiff given a hearing at the Service Enquiry?
Counsel for the plaintiff in his written submissions spent a lot of time on Exhibit ‘1’, saying it did not meet the requirement of a Service Enquiry as envisaged in Regulation 12 of L. I. 993.
On 16th September, 2010, the plaintiff was charged with misconduct contrary to Section 17 (k) of the Police Service Act 1970 (Act 350).
Section 17 of Act 350 deals with misconduct and unsatisfactory service. It provides that:
“It is a misconduct for a Police Officer
(k) To do any other act without reasonable excuse which amounts to a failure to discharge in a proper manner, a duty, or which contravenes an enactment relating to the Service, or which is otherwise prejudicial to the efficient conduct of the service or tends to bring the Service into disrepute.”
Exhibit ‘1’ gave the Particulars of the plaintiff’s misconduct. It states:
“For that you, Chief Inspector Kyei Adams of the Airport Police Post, Accra in the month of November, 2009, did cause an unregistered Toyota Camry Saloon car, the property of one Christopher Amenyona, parked at the car park (No. 1) at the Kotoka International Airport, Accra to be towed away under the pretext that the said car was under criminal investigations, a statement you knew at the time of making it to be false and thereby denying the owner of his property an act which is prejudicial to the efficient conduct of the Police Service and tends to bring the name of the Service into disrepute.”
From the judgment in contention, the plaintiff’s claim was dismissed;
Because he failed to prove his case and
That he was given a hearing at the Service Enquiry
In her judgment, the trial Judge made a finding of fact that the plaintiff was given a hearing and that Exhibit ‘1’ corroborates the evidence adduced at the trial to prove that plaintiff was given the opportunity to question the petitioner, and his lawyer cross-examined the petitioner. She held that:
“The totality of the evidence adduced and the exhibits tendered all indicate clearly that the plaintiff was given a hearing and that due process was adhered to. It also confirms that the Service Enquiry was properly held as all the parties were given the opportunity to be heard and were heard. (our emphasis)
The law requires that a person be given the opportunity to be heard. It does not compel a person to speak hence there is a right to silence or not to speak to a charge or complaint. Once it is evident that a party was given the chance or opportunity to be heard, the law deems that he has been given a hearing.”
We cannot agree more with the trial Judge. Giving a party a hearing also means giving the party the opportunity to be heard. Therefore when a party is given the opportunity to be heard and he fails to take advantage of same, he cannot complain that he has not been given a hearing.
In the case of Republic Vs. High Court (Fast Track Division) Accra, Ex parte Ayikai (Akosoku IV Interested Party) [2015-2016] 1 SCGLR 209, 290, it was held that a party disabling himself from being heard or participating in further proceedings before trial court cannot later accuse the trial court for breaching the rules of natural justice for denying him opportunity to be heard before delivering the impugned decision.
In coming to this decision, the Supreme Court relied on its earlier decision in Republic vs. High Court (Fast Track Division), Accra, Ex parte State Housing Co. Ltd. (No. 2) (Koranten-Amoako) Interested Party)  SCGLR 185, 186, holding (1), where their Lordships held that:
“A party who disables himself or herself from being heard in any proceedings cannot later turn around and accuse an adjudicator of having breached the rules of natural justice. Indeed, the applicant’s own Exhibit ‘G’ contradicts his unjustified attack. The record demonstrates that it was the applicant company, which through counsel, disabled themselves from being heard when in clear and unambiguous terms, they expressed their intention not to participate any further in proceedings complained of.”
In this appeal, counsel for the plaintiff listed some of the things the adjudicating officer failed to do. For instance, swearing the plaintiff on oath, allowing plaintiff’s counsel to cross-examine the prosecution witnesses, the plaintiff giving evidence, etc. The trial Judge in her judgment went through the check-list listed in L. I. 993, The Police Force (Disciplinary Proceedings) Regulations, 1974.
So the question is, was the plaintiff given a hearing? In other words, did the proceedings leading to the dismissal of the plaintiff meet the requirements of Regulation 4 (3) (c) of the Police Service (Disciplinary Regulations), 1974, L. I. 993 and Regulation 12 of L. I. 993? Per Regulation 12, the requirements for Formal Proceedings are:
After the defendant has pleaded, evidence shall be taken on oath or affirmation;
Opportunity shall be given to the defendant to cross-examine any witnesses who may be called to give evidence against him;
The defendant shall be permitted to give evidence and to call witnesses on his own behalf; Documents or exhibits tendered by the prosecution or the defence may be admitted in evidence;
Any police officer shall be compellable at the instance of the prosecution or defence. (subject to any enactment relating to evidence for the time being in force) to give evidence or produce exhibits;
When a defendant, having heard the evidence, wishes to make a statement, he shall be informed that any statement he may make may be made on oath or otherwise at his option and that such verbal statement will be put in evidence.
The proceedings shall be recorded in writing, and any verbal statement which a defendant may make in addition to his written statement of explanation shall be taken down in writing.
From the record of proceedings, the plaintiff was notified of the formal proceedings. Exhibit ‘A’ is clear on it. By Exhibit ‘B’, the plaintiff responded to the formal proceedings in which he denied the charge. The plaintiff was also invited to appear before the adjudicating officer. Exhibit ‘C’ is the wireless message to the Commanding Officer/Airport to release the plaintiff to appear before the adjudicating officer. The defendants tendered Exhibit ‘1’, the record of formal proceedings of the Service Enquiry. The defence also tendered Exhibit ‘2’, the petition against plaintiff to the police administration.
From the particulars of offence, the plaintiff was told why there was a Service Enquiry against him. Under cross-examination, the plaintiff said that before the adjudicating officer, he swore with the Bible in English after the adjudicating officer had read the statement and particulars of the offence to him.
The plaintiff insisted he was not given the chance to cross-examine the complainant. But under cross-examination, he admitted Anthony Goro was asked of his profession and his interest in the case. This is what transpired between plaintiff and counsel for defendants:
“Q: Did Anthony Goro ever appear before the adjudicating officer?
A. Yes, he appeared the same time. He was absent in the first meeting.
Q. When he appeared, was Anthony Goro asked of his profession?
A. Yes, my lawyers asked him and he said he worked at BNI
Q. Did you lawyers asked him why he was interested in the matter?
A. Yes, my Lord. He said he was Christopher Amanyona’s uncle.”
Exhibit ‘1’ is the record of proceedings. It shows that plaintiff was present on about three (3) occasions. His lawyers were also present and asked the prosecution witness some questions. Plaintiff also spoke to the charge against him verbally. Earlier on, before the start of the Service Enquiry, he had written to the adjudicating officer denying the charge against him.
If what took place at the Service Enquiry is ran against the check-list contained in Regulation 12, the finding of fact by the trial Judge “that the plaintiff was given a hearing as due process was adhered to and that the Service Enquiry was properly held as all the parties were given the opportunity to be heard and were heard” is clearly supported by the evidence on record. We would therefore reject the submission by counsel for the plaintiff that Exhibit ‘1’ is a summary of the proceedings. On the contrary, it is the proceedings as to what actually happened at the Service Enquiry and we make a finding to that effect. Consequently, the Central Disciplinary Board was seised with the formal proceedings and reviewed same.
We have gone through the entire record of appeal and we are satisfied that, the findings of fact by the trial Judge that the plaintiff was given a hearing is clearly supported by the evidence on record.
Grounds ‘A’, ‘B’, ‘C’, ‘D’ and ‘E’ of the appeal fail and they are dismissed.
In the result, the appeal fails in its entirety and it is hereby dismissed.
The judgment of the High Court dated 9th April, 2016 is hereby affirmed.