IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2019
THE REPUBLIC - (Paintiff)
INSPECTOR GENERAL OF POLICE AND 3 OTHERS - (Respondents)
EX-PARTE:NO. 33006 D/SGT CHRISTOPHER OKPATTA -(Applicant)
DATE: 4 TH FEBRUARY, 2019
SUIT NO: LIMSC 6/2019
JUDGES: FRANCIS OBIRI (HIGH COURT JUDGE)
DIANA ESSIEN FOR APPLICANT
KWAKU BOAKYE BOATENG FOR 4th RESPONDENT
This court has been called upon to determine the propriety or otherwise of the proceedings conducted by the Regional Disciplinary Board Kumasi, and which was confirmed by the Central Disciplinary Board, Accra in respect of the applicant.
The applicant per the contents of his application filed on 2nd November 2018 is praying this court, for an order of certiorari directed at the Central Disciplinary Board Accra to bring up into this court for purposes of being quashed; the decision of the Central Disciplinary Board, which reduced his rank from Detective Sergeant (D/Sgt) to General Corporal (G/CPL). The decision was made on 22nd August, 2018.
The facts behind this application are that, the applicant was charged with the offence of misconduct contrary to section 82 (i) (h) (iii) of the Police Service Regulation, 2012 (CI 76) He was alleged to have extorted an amount of GH₵1700 from the family of four suspects he was investigating their case as detective officer on or around 12th April 2016.
According to the facts, this was brought to the attention of the Divisional Commander of Ghana Police Service, Asokwa. The facts continue that, when the applicant was confronted with the issue, he denied same. He was searched and an amount of GH₵1700 was retrieved from him. He however claimed the amount was his monthly salary. He was later charged with an offence of misconduct contrary to section 82 (i) (h) (iii) of CI 76. A formal proceeding was held in respect of the charge under regulation 101 (c) of CI 76. This was under the authority of the Regional Disciplinary Board, Kumasi.
The officer who held the service enquiry recommended among other things that, he should be reverted to general Police duties.
The Ashanti Regional Disciplinary Board also recommended as follows:
(a) That, the applicant should be reverted from a detective to general Police duties.
(b) He should also be reprimanded severely.
On 22nd August 2018 however, the Central Disciplinary Board Accra, imposed a sentence of reduction in rank from General Sergeant to General Corporal with effect from, 23rd February 2017 on the applicant.
The applicant, who is aggrieved by the sentence imposed on him by the Central Disciplinary Board Accra, has mounted this application invoking the supervisory jurisdiction of this court through a motion filed on 2nd November 2018.
The motion is supported by affidavit and exhibits. His counsel subsequently filed a statement of case in support of his application.
I wish to recap the relevant paragraphs of the affidavit in support in this judgment.
1. That I was tried at a Service Enquiry upon the mandate of the 1st respondent to the 3rd respondent at Kumasi for the offence of misconduct contrary to Regulation 82 (i) (h) (iii) of Police Service Regulation, CI 76.
7. That, the Regional Disciplinary Board failed to comply with SI 39 (2) and (5) of the Police Service Instruction before the referral for service enquiry.
8. That, the Regional Disciplinary Board again failed to comply with Regulation 95 (2) of CI 76 and SI 51(1) and (3) of the Police Service Instruction before the referral to the Service Enquiry.
9. That in the absence of the above provisions, I was served with Police form 14 which stated the charges brought against me without having established any prima facie case.
10. That, I wish to state further and in particular that, the Police Service had no jurisdiction when it proceeded to try me under Service Enquiry without having regard to section 95 (2) of CI 76, SI 51 (1) and (3) and then SI 39 (2).
The motion was served on all the respondents. The applicant filed a supplementary affidavit in support of the motion on 8th November 2018. It was served on the 4th respondent on 8th November 2018 and on the 3rd respondent on 9th November 2018. The supplementary affidavit was also served on the 1st respondent on 9th November 2018 and on the 2nd respondent on 12th November 2018. The application was called on 13th November 2018. It was only the 4th respondent who was represented by counsel. The court ordered hearing notice to be served on the 1st, 2nd and 3rd respondents. The case was adjourned to 27th November 2018. The hearing notice was issued and served on the 1st 2nd and 3rd respondents on 22nd November 2018. The application was called on 27th November 2018. On the said date, 1st 2nd and 3rd respondents were absent inspite of the service of the hearing notice on them. It was only the 4th respondent who was represented by counsel. The court again adjourned the application to 23rd January 2019. It ordered hearing notice to be issued and served on the 1st 2nd and 3rd respondents. The hearing notice was issued and served on the 1st, 2nd and 3rd respondents on 10th and 11th January 2019 respectively.
The application was called again on 23rd January 2019. The 1st, 2nd and the 3rd respondents were absent. The 4th respondent was represented by counsel. The court adjourned the application to 25th January 2019 and ordered hearing notice to be served on the respondents except the 4th respondent. The 1st 2nd and 3rd respondents were served on 24th January 2019 with the hearing notice.
The application was heard on 25th January 2019. On said date, all the respondents were absent. It was only the 4th respondent who was represented by a State Attorney. I will come back to the effect of the various hearing notices which were served on the 1st, 2nd and 3rd respondents later in this judgment.
When the application came up for hearing, counsel for the applicant relied on the affidavit in support as well as the exhibits attached and the statement of case and prayed that, the application should be granted.
The State Attorney who represented the 4th respondent prayed that the application should be dismissed.
The applicant main contention was that, the decision of the 2nd respondent which was made on 22nd August 2018 reducing his rank from General Sergeant to General Corporal was made without jurisdiction and was therefore a nullity.
First of all, the jurisdiction of this court to deal with the present application is backed by the 1992 Constitution of Ghana, the Courts Act, 1993 (Act 459) and the High Court Civil Procedure Rules, 2004 (C.I 47).
Article 141 of the 1992 Constitution provides:
“The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers”.
Again, section 16 of the Courts Act, 1993 (Act 459) provides:
“The High Court shall have supervisory jurisdiction over all the lower Courts and any lower adjudicating authority: and may, in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers”.
The High Court Civil Procedure Rules, 2004 (C.I 47) under order 55 also regulate application for judicial review.
Order 55 1 (a) provides:
“An application for (a) an order in the nature of mandamus, prohibition certiorari or quo warranto, shall be made by way of an application for judicial review to the High Court”.
Again, Article 23 of the 1992 Constitution further provides:
23 “Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal”.
It is well settled that, certiorari will be granted to quash a decision of a court, an adjudicating body or an administrative body under the following conditions:
(i) Jurisdictional error arising from want of jurisdiction.
(ii) Jurisdictional error arising from excess of jurisdiction.
(iii) Breach of the rules of natural justice.
(iv) Jurisdictional error apparent or patent on the face of the record.
(v) Where the judgment or the order is illegal or improper.
See: Republic V High Court Accra, Ex-parte Salloun (Senyo Coker –Interested Party) (2011) 1 SCGLR 754.
Republic V Central Regional House of Chiefs & 2 Ors Ex-parte Nana Ehunabobrim Idun Gyan X
(Nana Andoh X – Interested Party) (2013) 66 GMJ 1 SC.
Republic V High Court Accra, Ex-parte CHRAJ (Addo –Interested Party) (2003-2004) SCGLR 312
Republic V High Court, Accra Ex-parte Hanawi (Owusu & Owusu Interested Party) (2013-2014) 2 SCGLR 1169 Enekwa & Ors. V Kwame Nkrumah University of Science and Technology (2009) SCGLR 242
Republic V High Court (Commercial Division, Accra) Ex-parte Electoral Commission (Papa Kwesi Nduom Interested Party) (2017) 111 GMJ 210 SC
Republic V High Court (Human Rights Division) Ex-parte Akita (Mancell Egala & Attorney General Interested Party) (2010) SCGLR 374
Republic V Court of Appeal, Ex-parte Tsatsu Tsikata (2005-2006) SCGLR 612
Republic V High Court Koforidua, Ex-Parte Ansah Otu (Koans Building Solutions Ltd – Interested Party (2009) SCGLR 141
Republic V High Court Kumasi, Ex-parte Bank of Ghana (No.1) (2013-2014) 1 SCGLR 477
However, it is trite that, certiorari looks to remedy past errors unlike prohibition which looks to the future. Certiorari also does not deal with the merits of a case.
The decision which made the applicant to invoke the supervisory jurisdiction of this court was made on 22nd August 2018 as per exhibit CO7. The application was filed on 2nd November 2018. This means the applicant brought the application within the six months as prescribed under Order 55 rule 3 of CI 47. The applicant also filed the decision and the proceedings he is complaining about before this court on 22nd November 2018 as prescribed under order 55 rule 7 of CI 47.
The 4th respondent filed affidavit in opposition and Statement of Case on 25th January 2019 without the leave of the court. This was in clear violation of order 55 rule 5 (3) and rule 6 (5) of CI 47.
The two orders provides as follows: 55 rule 5 (3) “A person who is served with notice of the application may file an affidavit in response to the application not later than seven days after service of the notice on the person”
Order 55 rule 6 (5) of CI 47 also provides “A respondent or any interested party who wishes to contest the application shall file such number of his statement of case, as the Registrar may determine, within 14 days of service of the statement of the applicant’s case on him and shall set out his arguments in full citing all relevant statutes and decided cases intended for the consideration of the court”.
As I have stated already, the time set especially under order 55 rule 6 (5) of CI 47 was not complied with by the 4th respondent.
Order 55 rule 6 (5) is a mandatory provision.I must emphasise that, it is not every non-compliance with the rules which can be waived under order 81 of CI 47. If this is to be allowed, litigants and their counsel would be at liberty as to which of the rules to obey and at what time to comply with same.
See: National Investment Bank Ltd & 2 Ors V Standard Bank Offshore Trust Co. Ltd. (substituted by Dominion Corporate Trustees Ltd) (2017)113 GMJ 174 SC.
The importance of time limits in court processes was emphasised in the case of Oppong V Attorney General & Ors (2000) SCGLR 275 at 279 where the Supreme Court held per Bamford Addo JSC (as she then was) as follows: “Many a time, litigants and their counsel have taken rules of procedure, lightly and ignored them altogether as if those rules were made in vain and without any purpose. Rules of procedure setting time limits are important for the proper administration of justice. They are meant to prevent delays by keeping the wheels of justice rolling smoothly. If this were not so, parties would initiate action in court and thereafter go to sleep, only to wake up at their own appointed time to continue with such litigation at their pleasure. If this were allowed, litigation would grind to a halt, a sure recipe for confusion and inordinate delays in the due and proper administration of justice”.
Again, time limits in court processes are meant to ensure procedural integrity. It is also in the public interest that litigation must come to an end.
See: Doku V Presbyterian Church of Ghana (2005-2006) SCGLR 700 Essilfie V Anafo IV (1992) 2 GLR 654 SC.
I am therefore, unable to consider the 4th respondent affidavit in opposition and the statement of case which were filed out of time without the leave of the court. In respect of the 1st 2nd and 3rd respondents, they were served with all the processes and various hearing notices but they failed to attend court. They also failed to file any process in this application. It has been overflogged by a number of authorities that, the right to be heard in any proceedings is a natural right which should not be taken away. It is equally the law that, if a party is aware of a hearing date of a motion or a case and he chose to absent himself, without any excuse; it means he has waived his right to be heard.
See: Republic V Court of Appeal Ex-parte Eastern Alloy Co. Ltd (2007-2008) 1 SCGLR 371.
Republic V High Court (Fast Track Division) Accra, Ex-parte State Housing Co. Ltd. (No 2), Koranten Amoako – Interested Party (2009) SCGLR 185.
Ghana Consolidated Diamond Ltd V Tantuo & Ors (2001-2002) 2 GLR 150.
Republic V High Court (Human Rights Division) Accra, Ex-parte Akita, (Mancell Egala Attorney General –Interested Party) (supra)
It is therefore my view that, the 1st 2nd and 3rd respondents waived their right to be heard when they failed to file any document in this application, and also failed to appear in court after they were served with numerous hearing notices.
Coming back to the substantive application, the applicant counsel referred the court to Regulation 95
(2) of CI 76 and Service Instructions, SI 51 (1) and (3) and SI 39 (2) of the Police service Regulation.
I have examined regulation 95 (2) of CI 76. It is not mandatory to be complied with by the disciplinary authority.
It is however, provided under the Police Service Instruction 51 (1) as follows “when a member of the service is charged with a disciplinary offence of such a nature, that it is reported to the Inspector General of Police under the provision of Regulation 73 of Public Service Commission Regulation made under the Gold Coast (Constitution) Order in Council 1955, and the Inspector General of Police has directed that the case shall be dealt with by Police Disciplinary Board, the disciplinary Board shall issue directions in accordance with the provisions of Regulation 75”.
It is also provided under SI 51 (3) as follows “On receiving the directions of the Inspector General of Police, the Disciplinary Board having cause such preliminary investigations as may be considered necessary to be made and having found that, there is a prima facie case shall frame charge against the member of the service concerned, issue the necessary directions and nominate senior officer who is to hold the enquiry”.
Under SI 39 (2) It is provided as follows: “In the (Station Diary) shall be recorded all occurrences, complaint and report of crime, accidents, property received by police, details of persons arrested, prisoners in cells, parades held, weather reports, routine movements of members of the service, removal and replacement of arms and ammunitions, etc. The entries shall be made immediately and in order as they occur. The time entered in the appropriate column shall be the time at which the report is made, and all entries shall be made at that time. Reports of crime shall be entered as briefly as possible”.
The service enquiry proceedings against the applicant appears to have been trigged by a complaint of extortion against him by the relatives of some four suspects he was investigating on or around 12th April 2016.
However, as per the 1st to 3rd respondents own service instructions, this complaint ought to have been recorded in the Station Diary under SI 39 (2) of the Police Service Instructions which was not done.
The Police Service Instructions under SI 39 has even provided the person who is to make such entries in the Station Dairy. It provides as follows: “SI 39 (3) the duty of making all necessary entries in the Station Dairy is that of the station orderly”. This means no other person can do the entries except the station orderly that was present at the time of the alleged incident.
The requirement under SI 39 (2) is mandatory. It is after it has been complied with which can trigger any subsequent investigations and proceedings in a case. Therefore, SI 39 (2) can be said to be a basic requirement which should be complied with before an adjudicating body can have jurisdiction to hold any service enquiry. The catch word used in the opening sentence of SI 39 (2) is shall which makes it mandatory.
Again, there is no evidence that, any complaint of extortion or misconduct was recorded against the applicant in the Station Dairy by the station orderly on or around 12th April 2016 before the proceedings was held. There is nothing on the face of the proceedings that, a prima facie case was established against the applicant before the proceedings was held against him. There is also no evidence that, the matter was investigated before the service enquiry was held.
I have already stated that, these are mandatory provisions which should have been complied with before the adjudicating body would have been clothed with jurisdiction to commence the proceedings against the applicant which were not done.
It is the law that, where a statute has provided a right with remedies and has also provided a procedure to follow in order to secure the right or the remedy, it is only that procedure which must be followed.
See Tularley V Abaidoo: (1962) 1 GLR 411
Boyefio V NTHC Properties Ltd (1996-1997) SCGLR 531
Republic V High Court, General Jurisdiction 5, Accra Ex-parte The Minister for Interior & Anor (Ashok Kumar Sivaram – Interested Party) (2018) 122 GMJ 63 SC.
My view is that, even if the applicant misconducted himself on or around 12th April 2016, the 1st to 3rd respondents ought to have complied with their own service instructions before the beginning of the service enquiry proceedings.
It is therefore my opinion that, since SI 39 (2) and 51 (3) were not complied with by the 1st to 3rd respondents, the adjudicating body which conducted the service enquiry against the applicant was not clothed with jurisdiction to conduct the proceedings. This is because; the condition precedents under SI 39 (2) and SI 51 (3) were not complied with by the 1st to 3rd respondents. The service enquiry proceedings were therefore a nullity for lack of jurisdiction.
The decision made by the 2nd respondent on 22nd August 2018 was predicated upon the service enquiry conducted on behalf of the 3rd respondent. And since, the proceedings with respect to the service enquiry against the applicant has been declared as nullity, it stands to reason that, the decision made by the 3rd respondent on 22nd August, 2018 against the applicant was also a nullity.
This was a clear instance of placing something on nothing and as Lord Denning said in Mcfoy V United African Co. Ltd (1961) 3 All ER 1169. PC “you cannot put something on nothing and expect it to stay there. It will collapse”.
See: Mosi V Bagyina (1963) 1 GLR 337 SC
Network Computer System V Intelsat Global Sales (2012) 1 SCGLR 218
Republic V High Court (Fast Track Division) Accra, Ex-parte Speedline Stevedoring Co. Ltd (Dolphyne-Interested Party) (2007-2008) 1 SCGLR 102.
Before I conclude, let me say that, the 2nd respondent indicated in her decision dated 22nd August 2018 that, the reduction in the rank of the applicant was to take effect from 23rd February 2017. This is wrong in law because, the 1992 Constitution of Ghana which is the fundamental law of the land does not support punishment or sentence to be made to take a retrospective effect. It is only a benefit to a party which can take retrospective effect and not punishment or sentence. And if it was to be in the religious realm, I would have described it as the height of apostasy.
I must say that, even if there is a law or regulation which was relied on by the 2nd respondent to make the applicant punishment to take retrospective effect that cannot override the 1992 Constitution of Ghana.
In conclusion, the 1st, 2nd and 3rd respondents having failed to comply with the mandatory provisions in their own service instructions, I am of the view that this is a clear case where certiorari must lie.
In the circumstances, I hereby grant the application for certiorari and order that the decision of the 2nd respondent dated 22nd August 2018 be brought before this court for the purpose of it being quashed and same is hereby quashed. The effect is that, the applicant should be restored to his former rank forthwith as an ancillary order. The application therefore succeeds.
SGD FRANCIS OBIRI
(HIGH COURT JUDGE)