IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
ACCRA - A.D 2019
THE REPUBLIC - (Plaintiff)
THE CENTRAL DISCIPLINARY BOARD NATIONAL HEADQUARTERS GHANA POLICE SERVICE AND 2 OTHERS - (Respondents)
EX PARTE FRANCIS LORLEMTEY - (Applicant)
DATE: 15TH APRIL, 2019
SUIT NO: GJ/675/18
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR ESQ. JUSTICE OF THE HIGH COURT
The Applicant, until the 18th of May, 2018 was a Police Officer of the rank of a corporal. He was charged together with one G/Corporal Ernest Kensah, for misconduct, contrary to Regulation 82(1) under Police Service Regulations, 2012, C.I 76. The two are said to have travelled from Tamale to Garu when they checked into a hotel with arms. Based on a tip off that they were robbers the Police and Military swooped in on them and took them to Bolgatanga and eventually to Accra. The two appeared before a Regional Service Inquiry presided over by ASP William Apraku, the Adjudicating Officer, who found Corporal Kensah guilty for keeping arms and ammunitions without authority but found the Applicant not guilty. He was acquitted and discharged. This was approved by the Regional Disciplinary Board.
Upon review by the Central Disciplinary Board it rather overturned the concurrence of the Regional Disciplinary Board of the determination by the Adjudicating Officer, who found the Applicant not guilty and substituted a penalty of dismissal of the Applicant. It is this decision of dismissal that has precipitated the present application whereby the Applicant has invoked the supervisory jurisdiction of the High Court under Order 55 of the High Court (Civil Procedure) Procedure Rules, C.I 47 for orders in the nature of certiorari directed at the Respondents to bring to the court for the purpose of being quashed the decision of the Central Disciplinary Board to substitute a dismissal in place of discharge and acquittal against the Applicant.
THE CASE OF THE RESPONDENTS
The Respondents have contested the claim of the Applicant that the Northern Regional Disciplinary Board in accordance with Regulation 86(4) and (5) of C. I 76 ordered a service enquiry by appointing an Adjudicating Officer to conduct the enquiry, and that the findings and recommendations were reviewed by the Regional Disciplinary Board and agreed with the Adjudicating Officer and was transmitted to the Central Disciplinary Board. To Respondents in accordance with the mandate of the Central Disciplinary Board under Regulation 91(2) of C. I. 72 the Central Disciplinary Board reviewed the record and imposed a punishment of dismissal. Respondents deny that when an Adjudicating Officer serves a written charge on a Defendant, he is obliged to inform the Defendant of a right to submit a written statement in explanation of an offence and that there was no obligation for the Defendant to be informed that his explanation was satisfactory or not. Further that the decision had received all the necessary reviews from the bodies set up by law and the Central Disciplinary Board had acted within its powers by reviewing the decision and calls for the dismissal of the application.
GROUNDS FOR INVOKING CERTIORARI
Certiorari is one of the several writs that falls under the exercise of the High Court’s powers of judicial review. The power of judicial review in the form of supervisory jurisdiction of the High Court over all lower courts, administrative bodies and inferior bodies is founded under article 141 of the Constitution, where the Constitution grants power to the High Court over all lower courts and lower adjudicatory bodies in the exercise of that jurisdiction to 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. Section 16 of the Courts Act, 1993, Act 459 echoes this powers granted to the High Court under article 141 of the Constitution.
For an Applicant to be entitled to the grant of certiorari it has been held in a number of cases that the writ would lie if there had been lack of jurisdiction, or excess of jurisdiction, or breach of the rules of natural justice or there had been an error apparent on the face of the record etc. In fact the categories of matters that would trigger the issuance of certiorari is deemed not be closed. In REPUBLIC v HIGH COURT; EX PARTE APPIAH [1999-2000] 2 GLR 420 the Supreme Court noted as follows:
“An order for certiorari would be made where the order sought to be quashed had been made, inter alia, without jurisdiction, either because the court had exceeded its jurisdiction or lacks jurisdiction. A court having jurisdiction might nevertheless lose that jurisdiction if its decision was made in bad faith; or if it had failed in the course of the inquiry to comply with the requirements of natural justice; or if it had refused to take into account something which it was required to take into account. The list could not be said to be exhaustive. However, where the court had jurisdiction to entertain the action, its judgment or ruling could not be impeached on the mere ground that its decision was wrong. Under those circumstances, the proper thing to do was to appeal that decision. Where however upon the face of the proceedings it appeared that the decision was wrong in law, certiorari to quash it would be granted”.
The preconditions for the grant of certiorari could also not have been rendered better than in the case of REPUBLIC v HIGH COURT; ACCRA; EX PARTE TASTASU TSIKATA [2005-2006] SCGLR 612 @ 619 per Wood JSC (as she then was) that:
“the clear thinking of the court is that our supervising jurisdiction … should be exercised only in those manifestly plain and obvious cases where there are patent errors of law on the face of the record, which errors either go to jurisdiction or are so plain as to make the impugned decision a complete nullity. It stands to reason that the reasons then, that the error(s) of law alleged must be fundamental, substantial, material, grave or so serious as to go to the root of the matter. The error must be one on which the decision depends. A minor, trifling, inconsequential or unimportant error or for that matter an error which does not go the core or root of the decision complained of or stated differently, on which the decision does not turn, would not attract the court’s supervisory intervention”.
See also the following cases: REPUBLIC v CAPE COAST DISTRICT MAGISTRATE GRADE II; EX PARTE AMOO  GLR 150 CA Apaloo CJ REPUBLIC v HIGH COURT, ACCRA; EX PARTE THE CHARGE D’AFFAIRS, BULGARIAN EMBASSY; (Unreported) Suit No J5/34/2015 dated the 24th Feb., 2016; Pwamang JSC REPUBLIC V HIGH COURT, SEKONDI, EX-PARTE AMPONG AKA AKRUFA KRUKOKO I (KYEREFO III AND OTHERS – INTERESTED PARTIES)  2 SCGLR, 716 AT 722; REPUBLIC v COURT OF APPEAL, ACCRA; EX PARTE TSATSU TSIKATA [2005-2006] SCGLR 602.
BASES OF THE CLAIM OF THE APPLICANT
Applicant anchors his application on two main grounds as gleaned from paragraphs 19 and 20 wherein Justin Teriwajah, Esq depose as follows:
“19. That as counsel, I verily believe that the Central Disciplinary Board acted utra vires its powers when it usurped the power of the Northern Regional Disciplinary Board to issue a letter of dismissal to the Applicant.
20. That as counsel I verily believe that the letter of dismissal issued to the Applicant by the Central Disciplinary Board is a nullity since the decision of the Central Disciplinary Board is without just cause and hence same is contrary to article 191(b) of the Constitution of Ghana”.
From the above two paragraphs, the basis of the Applicant seeking to quash the decision of the decision of the Central Disciplinary Board is one, that the Central Disciplinary Board acted utra vires its powers. In other words that the said Board exceeded its powers to issue dismissal of the Applicant. The second as contained in paragraph 20 is a claim of the nullity of the decision of the Central Disciplinary Board for having taken a decision that is in breach of a constitutional provision that safeguard a public officer from arbitrary or capricious dismissal. I propose to take each of the two grounds for determination ad graditem.
ALLEGATION OF CENTRAL DISCIPLINARY BOARD HAVING ACTED UTRA VIRES ITS POWERS
To act utra vires is to act over or outside powers conferred on a body or person. To act beyond or in excess of authority or given powers. It can also be said to have acted in excess of jurisdiction. A decision that is utra vires is void. Can the decision of Central Disciplinary Board reviewing and dismissing the Applicant be said to be an act that is beyond the powers granted the body by law? A finding in this respect will necessitate an excursion into Police Service Regulations, 2012, C. I. 76 which by Regulation 157 repealed Police Service (Disciplinary Proceedings) Regulations, 1974, L. I 993.
Regulation 87 established the Central Disciplinary Board whiles Regulation 89 establishes a Regional Disciplinary Board. Regulation 91 regarding enquiry into conduct of officers states as follows:
“91 (1) The Inspector-General of Police may direct the Central Board or a Regional Board in writing to nominate a senior officer to enquire into the conduct of an officer of the Service.
(2) A finding or decision [emphasis mine] by a Regional Board is subject to review and approval by the Central Board which may
(a) Confirm or set aside an order of acquittal or discharge
(b) Approve the penalty imposed
(c) Where a finding is not supported by the evidence, substitute its own finding and reduce, cancel, increase or alter the penalty imposed
(d) Annul the proceedings and findings of the Regional Board or
(e) Refer the matter back to the Regional Board or Adjudicating Panel for further investigation and report as the Central Board may direct.
(3) A finding or decision by a senior officer is subject to review and approval by the appropriate Regional Board which may
a. Confirm or set aside an order of acquittal or discharge
b. Approve the penalty imposed
c. Where a finding is not supported by the evidence, substitute its own finding and reduce, cancel, increase or alter the penalty imposed
d. Annul the proceedings and findings of the Regional Board or
e. Refer the matter back to the senior police officer for further investigation and report as the Regional Board or the Adjudicating Panel may direct.
The court has been treated to an interesting submission by learned counsel for Applicant who has argued that the provisions supra are in pari materia with the provisions in the repealed L. I 993 and the said provisions in L.I 993 had received extensive judicial pronouncements in cases such as REPUBLIC v INSPECTOR GENERAL OF POLICE; EX PARTE LAMPTEY  GLR 62; REPUBLIC v INSPECTOR GENERAL OF POLICE; EX PARTE CANTARA [1982-83] GLR 528 and recently in the case of CASTRO YAW AHIAMO v ATTORNEY-GENERAL Suit No J4/38/2016.
For ease of reference and for better comparative analysis, I find it apt to also quote Regulation 3(3) and of the repealed L. I 993 which counsel claims is in pari materia with C.I 76. It states as follows:
“(3) A major penalty imposed by a Regional Board shall be subject to review and approval by the Central Board which may
(a) Approve the penalty or
(b) Substitute a finding of its own and reduce, cancel, increase or alter the penalty or
(C) Annul the proceedings before the Regional Board or
(d) Before taking an action refer the proceedings back to the Regional Board for such further investigation and report as the Central Board may direct
(5) A penalty which requires approval under paragraph (3) and (4) of this Regulation shall not take effect until it has been so approved”.
The interpretation given to L. I. 993 in Ex Parte Cantara by Twumasi J was to the effect that a Disciplinary Board was supposed to impose its penalty after its investigations and any penalty imposed by a superior officer was subject to review and approval by the Regional Board and the penalties imposed by the Regional Board was, in turn, subject to review by the Central Board. That no delegation of sentencing powers was permitted under regulation 3(1). Therefore, there was no warrant whatsoever for any disciplinary authority, after hearing a case, to recommend a penalty to another authority; the authority which tried a case ought to impose a penalty prescribed for it under regulation 3 (1). And since under regulation 3 (1) a superior officer could not recommend or impose a penalty of dismissal.
A careful reading of Regulation 91(3) of C. I 76 will show that the Police Service have learnt from the decisions of the courts and provided a far wider scope of the law. Whiles L.I 993 only limited itself to matters of imposition of penalty, C. I 76 is wider by granting power for the confirmation or setting aside an acquittal. This was missing in L.I 993. Much more importantly is the fact that whiles L.I 993 stated that a major penalty imposed by a Regional Disciplinary Board shall be subject to review by a Central Disciplinary Board, hence leading to the decision of Twumasi J. in Cantara case that a penalty must of necessity be imposed first before it could be reviewed by the Central Board the language of C. I 76 is not so. The phrase used in C. I 76 is a ‘finding or decision’. A finding or decision may not necessarily be a penalty as it was under L.I 993. A finding has been defined by Black Law’s Dictionary as:
“A determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record, usually presented at the trial or hearing”.
In this respect for ASP William Apraku to hold that:
“Findings… In the case of DW2 SO … Francis Lorlemtey neither arms nor was ammunition found on him. He was on leave and the wildly circulated assertion by the town folks that he was an armed robber was also a misnomer. He is therefore acquitted and discharged. Subject to your approval”.
This in Ex GP2 at page 3, the Northern Regional Disciplinary Board concluded among others that:
“The Regional Disciplinary Board has agreed with the Adjudicating Officer’ recommendation that … Francis Lorlemtey be acquitted and discharged since no weapon was found on him”.
The conclusion of the Adjudicating Officer, I hold is a finding and the conclusion of the Regional Disciplinary Board is an endorsement of the finding by the Adjudicating Officer. There is no provision in the C. I 76 that calls for the imposition of a penalty before the Central Disciplinary Board can intervene. As stated supra that C. I 76 has been cast in broader scope than L.I 993 and what appeared before the Central Disciplinary Board without a penalty having been imposed by the Regional Board will not divest the Central Disciplinary Board of jurisdiction and assumption of jurisdiction by the Central Disciplinary Board was not utra vires but well within its authority under law. Consequently the first ground of seeking to quash the determination of the Central Disciplinary Board is dismissed as misconceived.
ALLEGATION OF BREACH OF CONSTITUTIONAL RIGHT OF THE APPLICANT OF DISMISSAL WITHOUT JUST CAUSE.
By the manner in which the finding of not guilty of the offence for which the Applicant appeared before the Adjudicating Officer was overturned by the Central Disciplinary Board who substituted it with a dismissal, the Applicant contend that such a decision is capricious and violates a Constitutional provision under article 191(b) which states that:
“A member of the public services shall not be dismissed or removed from office or reduced in rank without just cause”.
Benin JSC in the AHIAMO case noted that ‘without just cause’ connotes both procedural and substantive due process. I do not find the Applicant to be raising any procedural issue regarding the alleged constitutional breach but rather that there had not been a substantive due process with the order of dismissal not supported by any finding on record. In proceeding on this constitutional leg of the case, I remind myself of the dictum of Sophia Akuffo JSC (as she then was) in the case of FAROE ATLANTIC CO LTD v ATTORNEY-GENERAL (2006) 1 G.M.L.R @ 5 that:
“The Constitution is the supreme law of the land and article 1(1) makes it clear that ‘…the powers of government are to be exercised in the manner and within the limits laid down in this constitution.’ As the supreme law of the land, the Constitution is applicable at all times and in all acts and things, particularly those done for and on behalf of the Republic of Ghana, must always be tested against its provisions. In the course of judicial proceedings, it is incumbent upon every Judge to keep its provisions in mind to assure compliance, not only by the parties before it but also by the court”.
Is there a substantive just cause for the dismissal of the Applicant? Applicant and his colleague Kensah faced charges of keeping arms without lawful authority contrary to section 82(1)(v)(iii) of Police Service Regulations. C. I 76, 2012.
Nowhere were the two additionally charged with the offence of conspiracy to keep arms without lawful authority. In the findings of the Northern Regional Disciplinary Board, it noted that the ammunition found in the room of the two police officers were issued to Corporal Ernest Kensah and same belonged to him, and that no weapon was issued to Corporal Francis Lorlemtey and agreed with the Adjudicating Officer’s finding of acquittal and discharge for the Applicant.
From Ex ‘GP3’, the reason for the Central Disciplinary Board overturning or reviewing the finding, which it had power to do, was that both police officers were found to be in possession of arms at the guest house. With due respect there is no such finding either by the Adjudicating Officer, or the Northern Regional Board.
And this finding made by the Central Disciplinary Board is not supported by any evidence on record. Possession has been defined in the case of WARNER v. METROPOLITAN POLICE COMMISION (1969) A.C. 256 as a deceptively simple concept denoting a state of physical control or custody of a thing plus the knowledge of the presence of the thing.
See also in the case of SEWONOMIM alias ATUAHENE v REPUBLIC  G.L.R 18, where Osei – Hwere J. (as he then was) said this about possession:
‘It is commonly agreed that the concept of possession comprises the corpus or the element of physical control and the animus or the intent with which such control is exercised’
The proceedings during the enquiry showed that it was Corporal Ernest Kensah who signed for the arms and was in charge of those arms found and in that respect when the definition of possession is applied one would say that it was not enough that the Applicant knew of the presence of the arms but that he was not the one who had custody of the arms. Consequently, I find that the fact of C. I 76 giving power to the Central Disciplinary Board to review a decision or finding does not mean that it was entitled to act in a capricious manner and where its decision is not borne out by the evidence on record, then that amounts to a violation of article 191 of the Constitution and a court of law would be justified in intervening to ensure that a member of the public service is not dismissed without just cause.
I hold that there had not been a substantive due process with the decision of the Central Disciplinary Board to substitute a verdict of dismissal of the Applicant in place of acquittal and discharge.
And with a finding of violation of article 191 with respect to the dismissal, a cause had been made for the invocation of the powers of the court for the issuance of certiorari to quash the decision of the Central Disciplinary Board and the findings and the decision of the Central Disciplinary Board is hereby quashed by the court in relation to the Applicant. The net effect would be the re-instatement of the Applicant.