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This ruling
is in respect of an application
by Albert Anthony Ampong and
Adim Odoom filed on 28-04-2010
for judicial review pursuant to
articles 23 and 296 of the 1992
Constitution of Ghana and Order
55 of the High Court (Civil
Procedure) Rules, 2004 (C.
1.47). The reliefs sought by the
applicants are as follows: (i) a
declaration that the decisions
of the Civil Service Council
dated 31-03- 2010 interdicting
the applicants, punishing them
with payment of half of their
salaries and the imposition of
a.travel ban are unlawful; (ii)
an order of certiorari to bring
in the decisions of the Civil
Service Council complained of
above and quash same as being in
violation of due process and the
relevant laws for the Civil
Service in Ghana. (iii) an order
of prohibition directed at the
Civil Service Council forbidding
it from instituting disciplinary
measures against the applicants
on the strength of the letters
of interdiction dated
31-03-2010; (iv) an order of
mandamus compelling the Civil
Service Council to allow the
applicants resume normal duties
as Principal Accountant and
Chief Director of the Office of
the Head of Civil Service; (v)
any further order(s) as this
Court may seem meet. This case
has a chequered history and in
order to appreciate the issues
involved it would be necessary
to state its brief antecedents.
The 1st applicant was the Chief
Director of the Ministry of
Youth and Sports while the 2nd
applicant was the Principal
Accountant of the same ministry.
On 25-06-2009, His Excellency,
the President of the Republic of
Ghana, in a statement signed and
issued by his spokesperson on
the report of the National
Security into allegations
against the then Honourable
Minister of Youth and Sports,
ordered that the applicants be
interdicted from the Civil
Service. The statement, further,
directed that the Head of Civil
Service should apply appropriate
sanctions against applicants.
The 15t applicant was, further,
ordered to refund the sum of US
$20,000.00 to the State. The
Head of Civil Service responded
to the directives of His
Excellency, the President, and
wrote the applicants purporting
to implement the said
directives. The applicants
instituted separate actions in
the Fast Track Division of this
court against the respondent
herein, that is, the
Attorney-General, who is the
chief legal adviser of the
government and the Head of Civil
Service challenging the
decisions of His Excellency, the
President, and the Head of Civil
Service. On 23-11-2009, Her
Ladyship, Justice Novisi-Aryene
(Mrs.), delivered her ruling in
the case of the 2nd applicant
herein by which she decided that
the directives of His
Excellency, the President, were
unlawful, ultra vires and void
and issued certiorari to quash
the said decisions. She,
further, quashed the subsequent
decisions of the Head of Civil
Service which seek to implement
His Excellency, the President's
directives. Her Ladyship, also,
ordered the Head of Civil
Service to recall the 2nd
applicant to resume duties as
Principal Accountant at the
Ministry of Youth and Sports and
arrears of salaries due paid to
him. Her Ladyship, however,
refused to issue an order to
prohibit the Attorney-General
and the Head of Civil Service
"from imposing any disciplinary
sanctions against (2nd
applicant) on the basis of the
National Security Report on
Investigations into Allegations
against the former Minister of
Youth and Sports, Alhaji Muntaka
Mohammed Mubarak." Her Ladyship,
on the contrary, ordered that
the said report of the National
Security Committee be referred
to the Head of the Civil Service
to be dealt with according to
law. On 02-12-2009, His
Lordship, Justice S. K. A.
Asiedu, also, gave his ruling in
respect of the 1st applicant
herein. He, similarly, quashed
the decisions of His Excellency,
the President, and the Head of
the Civil Service as they were
in violation of due process and
the relevant laws and
disciplinary regulations for the
Civil Service. His Lordship,
also, prohibited the imposition
of any disciplinary sanctions
against the applicant on the
basis of the National Security
Report on Investigations into
allegations against the former
Minister of Youth and Sports and
stated that "if there is any
case, of whatever nature, for
the (1st Applicant) to answer,
then the Civil Service Council
established under PNDC L327, is
the right body, to carry out
disciplinary proceedings against
the (1st ) applicant." His
Lordship, in accordance with
Order 55, rule 7(2) of C.I. 47,
exercised his discretion and
remitted the matter to the Head
of the Civil Service to place
same before the Civil Service
Council to be dealt with
according to law. His Lordship,
however, refused to order the
Head of the Civil Service to
allow the 1st applicant to
resume normal duties as the
Chief Director of the Ministry
of Youth and Sports unlike in
the case of the 2nd applicant.
Be that as it may, the Office of
the Head of the Civil Service,
by letter dated 02-12-2009,
recalled the 2nd applicant from
interdiction and restored his
full entitlements with effect
from 03-07-2009. On the same
02-12-2009, the Office of the
Head of Civil Service, by letter
addressed to the Minster of
Youth and Sports, posted the 2nd
applicant from the Ministry of
Youth and Sports to the Office
of the Head of Civil Service to
take effect from 07-12-2009. The
Minister of Youth and Sports on
16-12-2009, by letter, informed
the 2nd applicant of the said
posting and released him to the
Office of the Head of Civil
Service with immediate effect.
Similarly, by letter dated
08-12-2009, the Office of the
Head of Civil Service recalled
the 1st applicant from
interdiction with a restoration
of his full entitlements with
effect from 03-07-2009. The next
day, 09-12-2009, the Office of
the Head of Civil Service
requested the Minister of Youth
and Sports to release the 1st
applicant to report to the Head
of the Civil Service for
reposting. And by letter dated
11-12-2009, the Ministry of
Youth and Sports informed the
1st applicant of the request and
released him to the Office of
the Head of Civil Service with
immediate effect. After the
applicants assumed work at the
Office of the Head of Civil
Service, the Civil Service
Council by letters to them dated
17-12-2009 requested them to
respond to a number of issues
therein stated but mainly
concerning their official
involvement in the disbursement
of about US $20,000.00 while
they were at the Ministry of
Youth and Sports. The letters
asked them to ensure that their
responses reached the Secretary
of the Civil Service Council by
04-01-2010 for the Council's
attention. The applicants
instructed their solicitors and
the latter, on 04-01-2010,
replied to the Civil Service
Council's letter of 17-12-2010.
The solicitor's letter did not
respond to the issues requested
by the Council. It rather sought
certain clarifications. The
applicants did not hear of
anything again until 12-01-2010
when the Council wrote back to
them in which it confirmed that
its main concern was their
official involvement in the
disbursement of the US
$20,000.00 while they were with
the Ministry of Youth and
Sports. The Council then
requested them to respond to the
letter of 17-12-2009 by 29- 0
1-2010. On 29-01-2010, the
applicants' solicitors again
replied to the Council's letter
of 12-01¬2010 and also repeated
the request for clarifications
in their earlier letter of 04-01
2010. The last correspondence
between the parties and which
provoked the instant action is
the Civil Service Council's
letter of 31-03-2010 to each of
the applicants. Since this
letter formed the basis of the
action, I would reproduce the
material part hereunder. It
states thus: “ INTERDICTION The
Civil Service Council at its
meeting held on 23rd March, 2010
realised that you have been
frustrating and impeding its
efforts at soliciting from you
your personal involvement/role
in loss of and disbursement of
the $20,000 US Dollars while you
were at the Ministry of Youth
and Sports. 2. I wish therefore
to inform you that the Civil
Service Council at its meeting
on Tuesday, 23rd March, 2010
decided to institute
investigations into allegations
of financial improprieties in
the Ministry of Youth and Sports
in which you held the position
of (Chief Director/Principal
Accountant). The investigations
are aimed at ascertaining your
alleged involvement in the
disbursement of $20,000 US
Dollars. 3. Consequently, the
Civil Service Council decided to
interdict you with immediate
effect to allow for
uninterrupted investigations
into the matter. 4. In
accordance with existing
regulations, while on
interdiction, you will be paid
fifty percent of your salary
provided you are not indebted to
Government and you shall not
travel outside the country
without the permission of the
Civil Service Council. 5. You
will be invited to appear before
the appropriate body/bodies that
the Civil Service Council may
hand over the investigations of
the matter to." As already
indicated above, it is this
letter of 31-03-2010 that
provoked the instant application
for judicial review. The case of
the applicants is vividly stated
in paragraphs 23 to 34 of the
affidavit in support, filed on
28-04-2010, which I reproduce
hereunder: “23. That it is
totally ludicrous for the Civil
Service Council to hinge our
interdiction and the attendant
punishment of payment of half of
our salary and the travel ban on
the quest for "uninterrupted
investigations into the matter",
since we were actually on our
accumulated leave and could thus
not interfere with
investigations. 24. That it is
again utterly absurd for the
Civil Service Council to contend
that we had been "frustrating
and impeding its efforts at
soliciting from us our personal
involvement/role in the
disbursement of US $20,000.00
while at the Ministry of Youth
and Sports", since all our
solicitors sought to know was
whether formal investigations
were being conducted in
accordance with the Civil
Service Act into our conduct, so
that they could properly advise
us. Surprisingly, the Civil
Service Council never replied to
any of our lawyer's letters. 25.
That I am advised by Counsel and
verily believe same to be true
that the decision of the Civil
Service Council interdicting us,
directing the payment of half of
our salary and prohibiting us
from travelling outside the
country without the permission
of the Civil Service Council is
manifestly unlawful and in gross
violation of the Civil Service
Law and the fundamental Human
Rights and Freedoms enshrined in
the Constitution, 1992. 26. That
I am further advised by Counsel
and verily believe same to be
true that the decision of the
Civil Service Council in
punishing us summarily without
giving us a hearing violates the
time-honoured principle of
natural justice for a person to
be given a hearing whenever
adverse decisions are to be
taken against him by any
administrative body or official.
27. That I am further advised by
Counsel and verily believe same
to be true that under Civil
Service laws, disciplinary
measures can only be instituted
against us pursuant to a written
charge preferred against us and
we had been accorded an
opportunity of appropriately
responding to the preferred
charge. 28. That no charge of
misconduct (formal or otherwise)
has to date been preferred
against us under the Civil
Service Act to warrant the
punishment of interdiction and
payment of half of our salaries.
Neither was it even indicated to
us that we were the subject of
investigations by the Civil
Service Council before the
purported interdiction was
effected. 29. That the fact that
we were not the subject of
investigations by the Civil
Service Council is evidenced by
the non-response to the queries
raised in our solicitor's two
letters (Exhibits "AA13" and
"AA14") to the Civil Service
Council and the letter of 12th
January, 2010 from the Civil
Service Council itself (Exhibit
"AA 12"). 30. That I am advised
by Counsel and verily believe
same to be true that the
decision interdicting and
punishing us without a hearing
is a palpable violation of the
Constitutional provisions in
Article 191 protecting Public
Servants like ourselves from
victimization, discrimination
and unjust punishment. 31. That
I am again advised by Counsel
and verily believe same to be
true that the decision to punish
us with half of our salary and
prohibit us from travelling
outside the country when no
specific charge has been
preferred against us, as
mandatorily required by the
Civil Service Act, is excessive
of the powers of the Civil
Service Council and in gross
contravention of the injunction
imposed on all persons in
positions of authority by
Articles 23 and 296 of the
Constitution, 1992 to act
fairly, reasonably, in
accordance with due process and
in a manner devoid of prejudice,
arbitrariness and
capriciousness. 32. That we are
merely being victimized for our
victory in an action instituted
in the Fast Track Division of
this Honourable Court against
the Respondent herein, by which
our rights as citizens and
senior Civil Servants were
vindicated. 33. That the Civil
Service Council has shown utter
malice and bad faith towards us
and can definitely not be relied
upon to conduct any proper and
impartial investigations into
the matter they purport to be
investigating. 34. That the
Civil Service Council is bent on
ruining our unblemished career
in the Civil Service and
jeopardize our future with
further illegal actions unless
otherwise restrained by this
Honourable Court." The above
paragraphs have been succinctly
summarized by the applicants in
the grounds they rely on for the
reliefs they seek from this
court, namely: "(a)Procedural
impropriety and failure to
observe due process. (b)Illegality
and want of power under the
Civil Service Act. (c)Unreasonableness,
capriciousness, arbitrariness
and unfairness on the part of
the Respondents." The
respondent's case is set out in
their affidavit in opposition
filed on 19-05-2010, especially
in paragraphs 27 to 38 of the
affidavit in opposition, which I
reproduce hereunder. "27. That
from the attitude of the
Applicant culminating in the
instant suit the respondent has
no choice than to believe that
the applicants are deliberately
avoiding the situation where
they have to provide answers to
the simple questions put to them
by the Civil Service Council in
connection with the matter of
the disbursement of the US
$20,000. 28. That there is a
difference between leave and
interdiction since whereas an
officer on leave receives full
salary and other benefits and
can travel outside the country
during the period and is also
not barred from coming to the
office, an officer on
interdiction, on the other hand,
is barred from coming to work;
is placed under travel
restriction/ban; Interdiction
allows only 50% payment of
salary to the interdicted
officer. That Interdiction is
not punishment but a measure
resorted to ensure that an
officer so interdicted stays
away from office in order not to
interfere with official work.
29. That the Applicants' claims
of an abuse of their fundamental
human rights cannot be true
since the fundamental human
rights enshrined in the 1992
Constitution and other
international norms do not bar
relevant officials from
answering queries about the
disbursement of public funds or
accounting for their
stewardship. 30. That the Civil
Service Council has not reached
the stage of instituting
disciplinary measures against
the officers, which then will
necessitate formal charges being
preferred and the officers being
accorded the opportunity to
respond. The Council knows the
rules and regulations pertaining
to disciplinary procedures and
at the appropriate time the
rules will be applied. 31. That
Civil Service Council acted in
accordance with the rules and
regulations and the Applicants
will be given a hearing when the
Disciplinary Committee is
constituted. That it is also on
record that the officers were
written to and given the
opportunity to explain their
respective roles in the matter,
which to date, they have failed
to do. 32. That the Civil
Service Council has not exceeded
its powers since the Council
acted in accordance with the
rules and regulations of the
Service and within its powers.
33. That the Applicants appear
confused about the judgments of
the Fast Track High Court in
this matter. That if they had
read the rulings carefully, they
would have realized that their
so-called victory was not total
since the High Court referred
the unfinished matters to the
Council as the appointing
Authority to handle within the
Civil Service law. 34. That the
High Court did not grant them
the order of mandamus they had
sought. Essentially, the High
Court held that the Civil
Service Council (not the
President) has the power to
interdict. 35. That the
Applicants are only trying to
shy away from explaining their
respective roles in the
disbursement of the US $20,000
and that they are also trying to
give the Council a bad name and
hang it so that the truth about
the loss of the US $20,000 would
never be known. 36. That the
Applicants are trying to cast
serous doubts about the
integrity, competence and
reputation of the Members of the
Civil Service Council which is
composed of honourable men in
the persons of • Dr. Robert
Dodoo, former Head of Civil
Service. • Justice E. D. K.
Adjabeng, retired Supreme Court
Judge • Mrs. Margaret Dela
Kutsoati, retired Senior Civil
Servant • Mrs. Milly Quansah,
retired Chief State Attorney •
Mrs. Rosetta Annan, retired
Senior Civil Servant Mr. Isaac
K. Asaimah, Director at the
National Development Planning
Commission, and Mr. Issac Bampoe
Addo, Chief Accountant, and
National Treasurer of the Civil
and Local Government Staff
Association, Ghana. 37. That the
Applicants deposition in
paragraph 34 is not supported by
the facts. The Applicants being
Civil Servants must be held
accountable for their
stewardship at the Ministry of
Youth and Sports, especially
their roles in the
disbursement/loss of US $20,000.
That the Civil Service Council
must not be retrained from
pursuing the recovery of the
amount, otherwise it might stand
as a financial loss to the
State. 38. That in the
circumstances the Applicants'
application is i.trivial,
frivolous, vexatious and without
any merit whatsoever. ii. that
their pleadings constitute an
attempt to mislead the
honourable Court and grossly
abuse the Court system and
processes and must therefore be
dismissed as unmeritorious. iii.
that the Order of Certiorari
being sought constitutes a
veiled attempt by the applicants
to avoid being called upon to
explain their roles in the
disbursement and loss of the US
$20,000 State funds while they
were at the Ministry of Youth
and Sports as Chief Director and
Principal Accountant
respectively. That this action
of the applicants is a cunning
attempt to frustrate the work of
the Civil Service Council, and
also to abuse the court system.
iv. that the Order of
Prohibition being sought by the
applicants as a relief
constitutes a desperate action
and a further attempt not only
to frustrate the efforts of the
Civil Service Council at fully
complying with the directives of
the Fact Track High Court but
also to escape being held
accountable for their
stewardship as Civil Servants
while on posting at the Ministry
of Youth and Sports. V. that the
Order of Mandamus being sought
to compel the Civil Service
Council to allow the 1st and 2nd
Applicants to resume normal
duties in the Civil Service
would be a gross violation and
abuse of the honourable Court.
If the order is granted it would
provide a greater recipe for
further disorder in the
management of the Government
machinery. It would set a
dangerous precedent and also
provide the license for the
confusion and indiscipline which
appear to be creeping slowly and
alarmingly into the Civil
Service today. vi. The
applicants do not deserve to be
rewarded with any reliefs they
are seeking. The honourable
Court is humbly requested to
exercise its judgment in
dismissing all the pleadings
because they appear totally
ridiculous, frivolous, vexatious
and unmeritorious." The main
issue in my opinion is whether
the Civil Service Council is
entitled by law to interdict the
applicants and visit the
sanctions of half salary and the
need for permission of the Civil
Service Council before
travelling. To determine this
issue, Regulation 11 of the
Civil Service Disciplinary Code
Regulations, 1971 (C.I. 17), in
my opinion, adequately covers
the point. For the purposes of
this application, the relevant
portions are Regulation 11(1),
(2) and (5) which provides thus:
"11(1) where disciplinary
proceedings, which may result in
the imposition of a major
penalty are being taken or are
about to be taken the Department
Head shall make immediate
recommendation to the
disciplinary authority for the
Civil Servant to be interdicted
from the exercise of the powers
and functions of his office. (2)
A Civil Servant so interdicted,
shall be paid half of his not
(sic) salary, and any increments
which may fall due shall be
suspended. (5) A Civil Servant
who is interdicted from duty
shall not leave Ghana without
the permission of the
disciplinary authority." Before
the enactment of C.I. 17, the
Civil Service (Interim)
Regulations, 1960 ([.1. 47)
provides similar provisions in
Regulations 54 (1), (3) and (6).
These rules state as follows:
"54 (1)….where the disciplinary
authority empowered to dismiss a
civil servant …considers that
the interest of the public
service requires that the civil
servant should cease forthwith
to exercise the powers and
functions of his office, the
disciplinary authority may
interdict him from the exercise
of those powers and functions if
proceedings which may result in
his dismissal are being taken or
are about to be taken. (3) A
civil servant who is interdicted
shall…receive salary calculated
in accordance with the following
rules: (a) If a civil servant
salary is £G 250 per annum or
less, he shall receive full
salary; (b) If his gross salary
exceeds £G 250 per annum, he
shall receive an amount
equivalent to two-thirds of his
gross salary plus the sum of any
deductions made from his salary
on Government account, or £G 250
per annum, whichever is the
greater. No interdicted civil
servant shall receive more than
his full salary. (6) A civil
servant interdicted from duty
shall not leave Ghana without
the permission of the
disciplinary authority who
interdicted him." So, from both
L.I. 47 and C.I. 17, upon
interdiction, the civil servant
suffers reduction in salary and
his freedom of movement outside
the country must be with the
permission of the disciplinary
authority. I would, however,
state that the current law, on
this point, is that of C.I. 17
for that is later in time than
L.I. 47 but there is no
significant difference between
the two Regulations. The second
issue arising out of the
Regulations governing this
matter is the body entitled to
interdict a civil servant.
Regulation 46 of L.I 47 makes
the President the disciplinary
authority for category A posts
holders while the Civil Service
Act, 1993 (PNDCL 327) by section
78 makes the Civil Service
Council the disciplinary
authority. Again, PNDCL 327
being later in time is deemed to
have amended L.I. 47 thus making
the Civil Service Council the
disciplinary authority. Now to
the main issue whether the Civil
Service Council is entitled to
interdict the applicants. As
already stated, Regulation 11 of
C.I. 17 governs interdiction of
civil servants. By Regulation
11(1), the Civil Service Council
is entitled to interdict a civil
servant "where disciplinary
proceedings, which may result in
the imposition of a major
penalty are being taken or about
to be taken" (my emphasis). The
first question to ask now is
whether the letter of
31-03-2010, referred to earlier
on in this ruling, constitutes
the start of disciplinary
proceedings. And the answer to
me is not difficult to find for,
by paragraph 2 of the said
letter, it is clear that the
Civil Service Council decided to
carry out investigations into
allegations of financial
improprieties in the Ministry of
Youth and Sports involving the
applicants. It was not a
decision to conduct disciplinary
proceedings. To emphasis the
point that the said letter
concerned a decision to conduct
investigations and not
disciplinary proceedings is by
reference to Regulation 4 (1) of
L.I 47 which states as follows:
"The disciplinary authority
shall inform the Civil Servant
of the accusation made against
him." A cursory perusal of the
letter of 31-03-2010 would
reveal without doubt that the
Civil Service Council had not
accused or charged the
applicants with any offence. The
letter simply informed them that
a decision had been taken to
investigate their involvement in
financial malfeasance of the
Ministry of Youth and Sports. It
follows that the Civil Service
Council by the said letter of
31-03-2010 were not conducting
any disciplinary proceedings
against the applicants so their
interdiction was not as a result
of disciplinary proceedings
being taken. The second question
is whether the Civil Service
Council by the said letter were
about to conduct disciplinary
proceedings to warrant the
interdiction of the applicants.
I would answer this question in
the negative for, as a matter of
fact, one cannot go ahead to
conduct any disciplinary
proceedings without preliminary
investigations. It is from the
investigations that a decision
is taken whether to prefer
charges or not before the
disciplinary proceedings would
or would not take place. Of
course, if from the preliminary
investigations there is no
evidence of any wrongdoing on
the part of the suspect then
there would be no need to
conduct disciplinary
proceedings. This need for
preliminary investigations is
even contained in the Civil
Service Regulations. I refer in
particular to Regulations 64(1)
to (3) and (11) of L.I. 47 to
buttress this point. These
provisions state as follows:
"64(1) Whenever a disciplinary
authority considers that formal
proceedings should be instituted
against a civil servant he
shall, after such preliminary
investigation as he considers
necessary, frame a charge or
charges against the accused
civil servant in writing. If
necessary the disciplinary
authority may consult with the
Attorney-General with regard to
the terms of the charge or
charges. (2) A copy of the
charge or charges, together with
a brief statement of the
allegations on which each charge
is based in so far as they are
not clear from the charges
themselves, shall be forwarded
to the accused civil servant,
who shall be invited to state in
writing before a date to be
specified (which shall allow a
reasonable interval for the
purpose) any grounds he relies
to exculpate himself. If the
accused civil servant does not
reply by the date specified, it
may be assumed that he does not
wish to make any statement. (3)
If the disciplinary authority
does not consider that the
accused civil servant has
exculpated himself, he shall
appoint a civil servant to hold
an enquiry into the charge or
charges, and this civil servant
shall be referred to as the
Inquiry Officer. (11) If during
the course of an inquiry the
Inquiry Officer considers that
grounds for framing an
additional charge or charges
against the accused civil
servant are disclosed, he shall
inform the disciplinary
authority immediately. If the
disciplinary authority considers
that an additional charge or
charges should be framed, the
same procedure shall be followed
as was adopted in granting the
original charge or charges." I
have referred to Regulation 64
of L.I. 47 only to emphasise the
need for preliminary
investigations before deciding
whether to institute
disciplinary proceedings or not.
It must be noted that in the
case of summary proceedings,
unlike in formal proceedings,
Regulation 65 of L.I. 47 does
not require that the accused be
supplied with the statement of
the allegations on which each
charge is based. Regulation
65(1) and (2) provides as
follows: "65(1) Where a
disciplinary authority is of the
opinion that disciplinary
proceedings should be instituted
against a civil servant for an
offence which if proved, would
not warrant a penalty more
severe than a minor penalty, he
shall cause a charge or charges
to be framed. (2) The
disciplinary authority shall
either investigate the charge or
charges himself or cause an
investigation to be made by a
civil servant holding a
pensionable post which is senior
to the accused civil servant's
in such a manner as he thinks
proper: So, by Regulations 64
and 65 of L.I. 47, two types of
disciplinary proceedings could
be carried out by the
disciplinary authority, namely,
the format and the summary. In
the case of a formal
proceedings, the accused civil
servant who is charged is given
a statement of the allegations
while, in the case of summary
proceedings, the accused civil
servant is not required to be
supplied with the statement of
the allegations. By section
79(1) of PNDCL 327, disciplinary
proceedings in cases of
misconduct can be conducted,
either summarily or in a formal
manner. However, as indicated
earlier in this ruling, the
letter of 31-03-2010 was not one
by which disciplinary
proceedings were commenced. The
letter did not constitute any
charge or charges for which the
applicants were called upon to
answer. The letter informed the
applicants that the Civil
Service Council had decided to
conduct investigations into
allegations of financial
improprieties. It follows that
once the Civil Service Council
were yet to conduct preliminary
investigations into the
allegations of financial
improprieties then they could
not pre¬empt the outcome so as
to know whether they are facts
upon which the applicants would
be charged for the disciplinary
proceedings to be conducted. In
that sense, one cannot then say
'that disciplinary proceedings
"are about to be taken." To say
so would be placing the cart
before the horse. Had the Civil
Service Council completed their
preliminary investigations and
were satisfied that there is
evidence against the applicants,
it would be at this stage that
it could be said disciplinary
proceedings were about to be
taken. Following from this, the
Civil Service Council could not
lawfully interdict the
applicants and impose the
sanctions of half salary and a
restriction on their freedom of
movement outside the country
unless they take permission from
the Civil Service Council. In
short, the Civil Service Council
misconstrued the relevant
provisions of Regulation 11 of
C.I. 17 regarding when to
interdict a civil servant and
impose the requisite sanctions
affecting his salary and freedom
of movement. I would now
consider whether the applicants
are entitled to the reliefs they
seek by this application. The
first relief sought is for a
declaration that the decisions
of the Civil Service Council
dated 31-03-2010 interdicting
the applicants, punishing them
with payment of half of their
salaries and the imposition of a
travel ban are unlawful. I have
already examined the law
governing the Civil Service
Council powers to interdict and
impose the sanction of half
salary and restriction of the
movement of a civil servant and
I have come to the conclusion
that the Civil Service Council's
conduct under consideration was
unlawful. The second relief
sought is an order of certiorari
to bring in the decisions of the
Civil Service Council complained
of and quash same as being in
violation of due process and the
relevant laws for the civil
service. The decisions are those
contained in the letter of
31-03-2010. The Civil Service
Council is established by the
1992 Constitution as part of the
Public Services. PNDCL 327 was
passed pursuant to article 190
(3) of the constitution and this
law establishes the Civil
Service Council by section 35 to
perform public functions.
Certiorari is a public law
remedy used to supervise public
institutions such as the Civil
Service Council. The order of
certiorari is available to quash
the decisions of public
institutions where rights in
public law are violated. His
Lordship Dr. Twum J.S.C. in
Republic v. High Court, Accra,
Ex-parte Industrialization Fund
for Developing Countries and
Another [2003-2004] SCGLR 348
stated the law at page 361 thus:
"Judicial review is only
available against a public
authority concerning the
protection of rights that only
arise in public law. So that,
for example, a man who is
wrongfully dismissed by a
private limited liability
company cannot invoke judicial
review to seek redress." Again
in Republic v. High Court,
Kumasi, Ex-parte Mobil Oil
(Ghana) Ltd (Hagan- Interested
Party) [2005-2006] SCGLR 312,
Dr. Twum J.S.C. again espoused
the law at page 329 thus: "The
rules of natural justice are
part of the broad area of public
administration. One of its main
objects is to correct misuse or
abuse of public power. There is
a special family law remedies
available when public law rights
are infringed. These are
principally certiorari,
prohibition and mandamus. In
such cases, judicial review is
the appropriate remedy." There
are a number of grounds upon
which an order of certiorari
would issue. Some of these
grounds were set out by the
Supreme Court in Republic v.
High Court, Accra; Ex-Parte
Appiah and Others [2000] SCGLR
389 where it was stated at pages
391 to 392 thus: "An order of
certiorari would be made where
the order sought to be quashed
has been made, inter alia,
without jurisdiction either
because the court has exceeded
its jurisdiction or lacks
jurisdiction. However, a court
having jurisdiction may lose
that jurisdiction if its
decision is made in bad faith;
or it has failed in the course
of the inquiry to comply with
the requirements of natural
justice; or it has refused to
take into account something
which it was required to take
into account; or it might have
based its decision on a matter
it has no right to take into
account. .. The list cannot be
said to be exhaustive." Indeed,
the list cannot be exhaustive
for, if the court or a public
service acts illegally or
unlawfully, its actions would be
amenable to an order of
certiorari. Illegality, as a
ground for judicial review by
way of certiorari, is
acknowledged by the Supreme
Court. In Republic v. High Court
(Fast Track Division) Accra; Ex-Parte
Sian Goldfields Ltd (Aurex
Management & Investment AG/SA
Ltd-Interested Party) [2009]
SCGLR 204, the Supreme Court at
page 212 stated the law when it
stated thus: "We are of the
considered opinion that the
grounds for this application and
the facts in the instant case do
not establish that the learned
trial judge exceed his
jurisdiction or engage in any
serious illegality to warrant
our intervention by way of
certiorari." Earlier on in Tema
Develooment CorDoration & Mensah
v. Atta Baffour [2005¬2006]
SCGLR 121, the Supreme Court
held among others that: "The
grounds upon which an
administrative action would be
subject to judicial review were
illegality, irrationality and
procedural impropriety. By
'illegality' was meant the
decision-maker must understand
correctly the law regulating his
decision-making power. ... By
'procedural impropriety' was
meant ... failure by an
administrative tribunal to
observe procedural rules
expressly laid down in
legislation by which its
jurisdiction was conferred, ..."
In the instant case, the Civil
Service Council acted illegally
by not following the proper
procedure as laid down in
Regulation 11 of C.I. 17 before
interdicting the applicant along
with the prescribed
consequential sanctions stated
in the said regulation. The
decisions of the Civil Service
Council contained in its letter
of 31-03-2010 are, therefore,
amenable to certiorari. The
third relief is an order of
prohibition directed at the
Civil Service Council forbidding
it from instituting disciplinary
measures against the applicants
on the strength of the letters
of interdiction dated
31-03-2010. The requirements for
the issuance of prohibition are
similar to that of certiorari,
such as lack of or excess of
jurisdiction, breach of the
rules of natural justice,
illegality, etc. But for a
prohibition order to issue, it
means there is something yet to
be done wrongly or a wrong thing
is continuing. In the instant
case, the Civil Service Council
has wrongfully interdicted the
applicants and they are
receiving half of their salary
and they are not allowed to
travel outside the country
without the permission of the
Civil Service Council. Once the
decisions are illegal,
prohibition would issue to stop
the continued deprivation of the
applicants their rights. In
other words, the Civil Service
Council is hereby prohibited
from implementing or continuing
to implement the decisions
contained in the letters of
31-03-2010. The fourth remedy is
an order of mandamus compelling
the Civil Service Council to
allow the applicants to resume
normal duties at the Office of
the Head of Civil Service as
Chief Director and Principal
Accountant, respectively.
Mandamus is a judicial command
addressed to and compelling the
respondent to perform a public
duty. The applicants were
formerly at the Ministry of
Youth and Sports as Chief
Director and Principal
Accountant. Due to the events
narrated hereinbefore, they were
moved to the Office of the Head
of Civil Service. From the
processes filed in this court,
there is nothing to show that
they were still performing those
functions at the Office of the
Head of Civil Service. This
court may, therefore, be placing
the applicants in positions
which they were not occupying
before their interdiction by the
letters of 31-03-2010 if the
application for mandamus is
granted in the manner applied
for. What this court can order
by way of mandamus is that the
Civil Service Council should
ensure that the applicants
resume their normal duties at
the Office of the Head of Civil
Service. Accordingly, it is my
decision that the application
for judicial review succeeds.
The applicants are entitled to
the reliefs they claim from this
court as follows: (1)A
declaration that the decisions
of the Civil Service Council,
dated 31-03-2010, interdicting
the applicants and consequently
sanctioning them with the
payment of fifty percent of
their salary and imposing on
them a ban from travelling
outside the country without the
permission of the Civil Service
Council is unlawful. (2)An order
of certiorari to bring the Civil
Service Council's letters of
31-03-2010 which were addressed
to the applicants to this court
to be quashed and same are
quashed as they were not issued
pursuant to the requirements of
the law, specifically,
Regulation 11 of C.I. 17. (3)An
order of prohibition directed at
the Civil Service Council from
continuing to enforce their
decisions to interdict the
applicants and consequently pay
them fifty percent of their
salary and a ban on them not to
travel outside the country
without the permission of the
Civil Service Council. (4) An
order of mandamus directed at
the Civil Service Council to
allow the applicants to resume
their normal duties at the
Office of the Head of Civil
Service. (5) An order that the
applicants be paid all their
salary arrears and be restored
to their normal salary. I would
award each applicant cost of GH¢
5,000.00. COUNSEL: 1. Mr.
Godfred Yeboah Dame for
Applicants. 2. Mr. Elikplim
Agbamava (State Attorney) &
Mavis E. Kwainoe (Assistant
State Attorney) for Respondent. |
