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Police Service - Police Service
Regulations - Central
Disciplinary Board - Reinstatement
- Whether Central Disciplinary
Board can terminate appellant’s
appointment - Whether inquiry
into case was properly setup -
Whether non acknowledged
receipt of his appeal or
petition.
HEADNOTES
The plaintiff was a serving
policeman when he was charged
with breach of the police
regulations It suffices to
mention that following some sort
of inquiry the appellant’s
appointment was terminated by
the Central Disciplinary Board,
the defendant. The plaintiff
appealed to the Inspector
General of Police, as well as
the Police Council but neither
of them even acknowledged
receipt of his appeal or
petition. His complaint was that
the dismissal did not follow due
process and should thus be
reviewed. When his appeals hit a
stone wall, the plaintiff
mounted an action at the High
Court against the
Attorney-General and the other
defendants, The trial court
dismissed the plaintiff’s claim.
The Court of Appeal reversed
that decision, reasoning that
the Central Disciplinary Board
acted beyond its jurisdiction in
dismissing the plaintiff, The
plaintiff filed a notice of
appeal complaining about two
matters namely the refusal by
the court to order his
reinstatement; the refusal or
failure of the court to order
the payment of arrears of his
salary and benefits
HELD :-
On the facts of this case, it is
clear the police administration
treated the plaintiff’s case
with disdain, contempt and
high-handedness, which we very
much deplore. They did not even
acknowledge his petitions, let
alone to act on them. It was
after he had exhausted all
avenues open to him that he
resorted to court action. In the
circumstances, and taking into
account the rather difficult
situation in securing
employment, and the fact that
the salary as at 2008 values far
less than it is today in the
light of cedi devaluation, we
make an award of two years basic
salary attached to the post of
Police lance corporal as of
today. The court below, in its
discretion, awarded GH₵20,000 as
general damages; this was not in
issue as same was not contested,
so we affirm it. In addition the
court also awarded him his
earned salary for the period
February to July 2008 when he
was on interdiction. The
plaintiff is adjudged to recover
the said salary attached to the
post of a lance corporal as at
that time, that is the period
February to July 2008 by way of
special damage, together with
interest on the amount found due
on this head at the prevailing
bank rate from 1st August
2008 to date of payment. The
appeal therefore succeeds to the
extent stated herein.
STATUTES REFERRED TO IN JUDGMENT
1969 Constitutions article
138(b)
1979 Constitutions article
155(b)
Police Force (Disciplinary
Proceedings) Regulations, 1974
(L.I. 993)
Constitution, 1992 article
191(b)
CASES REFERRED TO IN JUDGMENT
Republic v. Fast Track
High Court, Accra; ex parte Sian
Goldfields Ltd. (Aurex
Management & Investment AG/SA
Ltd Interested Party) (2009)
SCGLR 204,
Sallah v.
Attorney-General, Supreme Court,
20 April 1970, unreported,
digested in (1970) CC 55
Quayson v.
Attorney-General (1981) GLR 295,
C.A.
Kwapong and Another v.
Ghana Cocoa Marketing Board and
Others etc (Consolidated)
(1984-86) 1 GLR 74,
Atoongo v. Bolgatanga
Urban Council, Court of Appeal,
23 February 1970, unreported;
digested in (1970) CC 39
Bank of Ghana v. Nyarko
(1973) 2 GLR 265, C.A.
Ghana Cocoa Marketing
Board v. Agbettoh and Others
(1984-86) 1 GLR 122,
Francis v. Municipal
Councillors of Kuala Lumpur
(1962) 3 All E. R. 633, P.C.
Nartey-Tokoli and Others
v. Volta Aluminium Co Ltd
(1989-90) 2 GLR 341
Republic v. Inspector
General of Police; ex parte
Lamptey (1978) GLR 62
Inspector-General of Police,
Republic v; Ex parte Cantara
[1982-83] GLR 528
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL.
JOSEPH KAPONDE
FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
WILLIAM KPOBI,
CHIEF STATE ATTORNEY FOR THE
DEFENDANTS/ RESPONDENTS/
RESPONDENTS.
JUDGMENT
BENIN, JSC:-
There is just one issue raised
in this appeal which has been
brought by the
plaintiff/appellant/appellant,
called the plaintiff in whose
favour the Court of Appeal gave
judgment. Effectively, the
appeal is against the
consequential orders made by the
said court whereby it refused to
order the re-instatement of the
plaintiff as well as his claim
for arrears of salary, even
after it had nullified his
dismissal from the Police
Service. The plaintiff was a
serving policeman when he was
charged with breach of the
police regulations. It is not
necessary to recount all the
details of the infractions of
the regulations the appellant
was charged with. It suffices to
mention that following some sort
of inquiry the appellant’s
appointment was terminated by
the Central Disciplinary Board,
the 3rd
defendant/respondent/respondent,
called the 3rd defendant. The
plaintiff appealed to the
Inspector General of Police, the
2nd
defendant/respondent/respondent,
called the 2nd defendant as well
as the Police Council but
neither of them even
acknowledged receipt of his
appeal or petition. His
complaint was that the dismissal
did not follow due process and
should thus be reviewed. When
his appeals hit a stone wall,
the plaintiff mounted an action
at the High Court against the
Attorney-General, the 1st
defendant/respondent/respondent,
called the 1st defendant and
also against the 2nd and 3rd
defendants. The plaintiff sought
these reliefs:
a. A declaration that the
Central Disciplinary Board acted
ultra vires when it took the
decision to dismiss and did
dismiss (the plaintiff) from the
Ghana Police Service via its
letter dated 22nd July, 2008.
b. An order reinstating (the
plaintiff) into the Ghana Police
Service with no loss of
seniority.
c. An order for the payment of
the salary and other benefits of
(the plaintiff) from the date of
stoppage of his salary (I.e. 1st
February 2008) to the date of
his reinstatement inclusive of
all upward adjustments in salary
to the rank he would have been
promoted to had he not been so
dismissed from the service.
d. Special damages equivalent to
two years annual gross salary to
be assessed per the rank of his
reinstatement.
e. General damages; and
f. Costs on a full indemnity
basis, inclusive of lawyers’
professional fees.
The trial court dismissed the
plaintiff’s claim. The Court of
Appeal reversed that decision,
reasoning that the 3rd defendant
acted beyond its jurisdiction in
dismissing the plaintiff. Indeed
the prevailing Police Service
regulations and decided
authorities cited by the Court
of Appeal justified its decision
to declare the plaintiff’s
dismissal wrongful.
Consequently, the court below
quashed his dismissal. Thus far,
none of the parties has any
issues with the court’s
decision. It is the
consequential orders made by the
court which the plaintiff is
dissatisfied with. The court
granted the first relief set out
above. On the second relief for
reinstatement, the court below
opined that the plaintiff was
given a fair hearing, but it was
the 3rd defendant’s intervention
that has resulted in the
punishment imposed on the
plaintiff being declared
unlawful. The court took note of
the fact that the plaintiff
admitted having committed some
infraction of the regulations
and pleaded for leniency. The
court concluded thus: “It
appears to us that an order
reinstating the appellant will
undermine discipline within the
Police Service and we therefore
decline to make an order
reinstating appellant.” The
Court also awarded him some
damages. We shall deal with this
shortly.
The plaintiff filed a notice of
appeal complaining about two
matters namely (1) the refusal
by the court to order his
reinstatement; (2) the refusal
or failure of the court to order
the payment of arrears of his
salary and benefits. These
reliefs were founded on the
following grounds of appeal:
1. The court erred in declining
to make orders reinstating the
appellant even though it found
his dismissal by the Central
Disciplinary Board ultra vires
its powers.
2. The imposition of the
sanction of dismissal was harsh
having regard to the evidence on
record.
3. The court erred in failing to
order for the payment of arrears
of salary and other benefits of
the appellant by the Ghana
Police Service from February
2008 till date of judgment.
On the question of reinstatement
counsel for the appellant
reviewed all the facts in
evidence and the Court of
Appeal’s decision upholding
relief 1 endorsed on the writ.
Counsel submitted that the Court
of Appeal should have ordered
the plaintiff’s reinstatement.
This position was virtually
supported by counsel for the
defendants, who added that the
plaintiff will revert to his
position but will remain on
interdiction. For this
proposition, counsel for the
defendants cited this court’s
decision in Republic v. Fast
Track High Court, Accra; ex
parte Sian Goldfields Ltd.
(Aurex Management & Investment
AG/SA Ltd Interested Party)
(2009) SCGLR 204, where it was
held that where proceedings are
set aside by an appellate court
as a nullity, the nullity does
not affect the writ that
commenced the proceedings,
unless otherwise decided by the
court. The analogy is
far-fetched in the sense that in
disciplinary proceedings which
are declared null and void,
nothing remains of it, the
nullity applies to the entire
proceedings. However, if the
affected official is reinstated
the process may be started de
novo, unless time has ran out by
legislation.
Let us now deal with the
substance of this ground of
appeal. Unfortunately neither
counsel cited any authority for
the common position they have
taken. May be they assume it’s
trite learning that every
declaration that termination of
appointment is wrongful must be
accompanied by an order of
reinstatement. That is clearly a
wrongful assumption, nor is it
trite learning. For a reading
through the decided authorities
in this country does not portray
a common position on this vexed
question. On one side there are
cases like Sallah v.
Attorney-General, Supreme Court,
20 April 1970, unreported,
digested in (1970) CC 55;
Quayson v. Attorney-General
(1981) GLR 295, C.A.; Kwapong
and Another v. Ghana Cocoa
Marketing Board and Others etc
(Consolidated) (1984-86) 1 GLR
74, which seem to decide that
once the dismissal was wrongful
in terms of a statute, including
the Constitution, reinstatement
should be ordered. We remember
in the Sallah case, that
decision led the then Prime
Minister to go on air to
proclaim no court could compel
the Government to employ
anybody.
On the other side are cases like
Atoongo v. Bolgatanga Urban
Council, Court of Appeal, 23
February 1970, unreported;
digested in (1970) CC 39; Bank
of Ghana v. Nyarko (1973) 2 GLR
265, C.A.; Ghana Cocoa Marketing
Board v. Agbettoh and Others
(1984-86) 1 GLR 122, where
reinstatement was not ordered
for a variety of reasons, even
though in a case like GCMB v.
Agbettoh, the dismissal was in
violation of a constitutional
provision.
We proceed to examine in detail
the case of Quayson v.
Attorney-General, supra, called
Quayson’s case as well as the
GCMB v. Agbettoh, supra, called
Agbettoh’s case where clear
divergent opinions were
delivered by the Court of Appeal
applying the equivalent
provisions of the 1969 and 1979
Constitutions. We shall also
make some detailed reference to
the Atoongo case, supra. In
Quayson’s case, the plaintiff
was removed from office as the
Deputy Director of Prisons
following the Government White
Paper on the findings of a
commission of inquiry. He
appealed to the Court of Appeal
which determined that his
removal from office was
unlawful, in terms of article
155(b) of the 1979 Constitution.
That provision read: “No
member of the public services
shall be......(b) dismissed or
removed from office or reduced
in rank or otherwise punished
without just cause.” The
Court of Appeal reasoned at page
299 per Edusei J. A. who read
the opinion of the court that:
“This provision in the
Constitution would be
meaningless if a public officer
could not be restored to his
former post where a court finds
that his removal was capricious
and unjust. We will therefore in
the circumstances of this case
order reinstatement of the
appellant to his former office
as first Deputy Director of the
Ghana Prisons Service.”
It is observed from this
decision that the court did not
emphatically state that
reinstatement must follow a
declaration of wrongful
dismissal under the
Constitution, that was why it
took the circumstances into
account in making the order for
reinstatement. But a decision by
the same court and courts below
to order reinstatement would be
justified in the light of this
decision.
On the other hand, in the
Agbettoh case, supra, the court
held that the termination of the
employees was contrary to the
provisions of article 138(b) of
the 1969 Constitution. That
provision read: “No member of
the public service shall
be......dismissed or removed
from office or reduced in rank
or otherwise punished without
just cause.” It is
observed that article 155(b) of
the 1979 Constitution which was
relied upon by the court in
Quayson’s case, supra, was a
verbatim reproduction of article
138(b) of the 1969 Constitution
which was relied upon by the
same court in declaring the
termination of the appointment
of the respondents in the
Agbettoh case as unlawful, null
and void. But in Agbettoh’s case
the court, whilst acknowledging
that in principle it could order
re-instatement, refused to order
same because apart from the
plaintiffs not having asked for
that, which was not a hindrance
anyway, the court’s reasoning
showed they were concerned with
the time lapse of five years for
which the respondents had done
no work for the employer.
Consequently it refused to grant
an injunction restraining the
GCMB from ejecting them from
their official residence. The
reason proffered by the Court
per Apaloo CJ who delivered the
opinion of the court at page 131
of the report is this:
“.........It would be unreal to
assume that the status quo in
1979 still exists five years
afterwards in 1984,…..Clearly,
the plaintiffs have not worked
for the board all these years.
They themselves were under a
duty to minimise their losses by
seeking and obtaining
alternative jobs..........To
affirm today an order which
secures bungalows which they
only used when they were in the
actual service of the board or
to order that salaries be paid
to them for those years when
they did not work for the board,
albeit through no fault of their
own, would be to set our face
against realities. The reality
of the situation is that
although de jure they are still
technically in the service of
the board, de facto they have
ceased to be so since November
1979.”
This decision was rendered on 8
November 1984, almost five years
to the date of their dismissal
from office. It is observed from
this decision that the
consequential orders were
dictated by the circumstances of
the case. No hard and fast
prescriptions were laid down.
The result is that if the court
concludes that termination of
appointment of a person is
unlawful as same violates a
constitutional or statutory
provision, it may order
re-instatement if the
circumstances so warrant it, or
alternatively or in addition it
may award damages. There is no
automatic right to be
reinstated. Hence in the Atoongo
case, supra the court refused to
order re-instatement. The
appellant in that case was
employed as the registrar of the
then Bolgatanga Local Council,
the predecessor-in-title of the
respondent. The appellant was
interdicted following his
involvement in a criminal case.
He was eventually acquitted by a
court, but his appointment was
terminated by his employers. He
took an action to recover
arrears of salary, declaration
that his dismissal was ultra
vires the respondent’s power,
and a declaration that he was
still at post. The Court of
Appeal relied on the Privy
Council decision in the case of
Francis v. Municipal Councillors
of Kuala Lumpur (1962) 3 All E.
R. 633, P.C. and held that the
proper remedy was by way of
damages.
Going forward, we must refer to
this court’s endorsement of the
reasoning in the Agbettoh case
in the case of Nartey-Tokoli and
Others v. Volta Aluminium Co Ltd
(1989-90) 2 GLR 341 called the
Valco case, at pages 371-372,
per Taylor JSC, whose judgment
was concurred in by three other
justices of the court.
In respect of the case on hand
the Court has concluded that the
termination was ultra vires the
power of the 3rd defendant under
the Police Force (Disciplinary
Proceedings) Regulations, 1974
(L.I. 993). The relevant
provisions of these regulations
had been judicially applied in
cases like Republic v. Inspector
General of Police; ex parte
Lamptey (1978) GLR 62 and
Republic v. Inspector General of
Police; ex parte Cantara; these
cases were relied upon by the
court below. The parties herein
have no problem with that,
neither do we. But we will go
further to hold that the
plaintiff’s termination was in
breach of the provisions of
article 191(b) of the
Constitution, 1992 which state
thus: “A member of the public
services shall not be- (b)
dismissed or removed from office
or reduced in rank without just
cause.”
This provision is a verbatim
reproduction of article 138(b)
of the 1969 Constitution, supra,
as well as article 155(b) of the
1979 Constitution, supra. The
expression “without just cause”
connotes both substantive and
procedural due process.
The Court of Appeal refused to
order re-instatement of the
plaintiff for reasons quoted
above. In view of the existing
authorities, it is clear the
lower court was at liberty to
choose which way to go. It had
discretion in the matter as
existing authorities were
decided on equivalent provisions
of the 1969 and 1979
Constitutions, and the present
case comes under similar
provision in article 191(b) of
the 1992 Constitution. Thus
unless we have reason to
interfere with the decision of
the court below in refusing the
claim by the plaintiff to be
reinstated we ought to leave
that decision to stand. For the
practice as summed by this court
again per Taylor JSC in the
Valco case at page 371 is that
“....the well-known practice in
the conduct of appeals is that
where a judge has used his
discretion in arriving at a
decision, then unless it can be
demonstrated that he ignored the
law or took into consideration
facts that he ought to have
excluded or omitted material
facts which should have been
considered, his conclusion
should not be interfered with.”
The Court reasoned that since
the plaintiff had accepted some
blame and was pleading for
leniency, re-admitting him into
the service would compromise
discipline, as the disciplinary
measure taken against him was
only reversed on procedural
grounds. Much as the court below
was entitled to its opinion in
the exercise of discretion, we
consider that analogous
situation in the Agbettoh case
is much more germane to apply.
Three months from now, the
plaintiff would have been away
from the service for ten years.
Much as we deprecate the
capricious manner the plaintiff
was removed from office, we
consider it inadvisable to
restore him to the police
service. He himself did not help
his cause by waiting for more
than five years when the cause
of action arose before
commencing the action in court.
It did not show the desire of a
service personnel who wants to
return to post, knowing the
physical demands required on the
job. We have no reason to
interfere with the Court of
Appeal’s refusal to make an
order for his re-instatement.
Ground 1 fails and is
accordingly dismissed.
Ground 2 is really unnecessary
and uncalled for as the court
below granted him declaration
for wrongful termination of
appointment. It is therefore
granted.
The third ground relates to the
refusal of the court below to
grant him arrears of salary. The
court below awarded a lump sum
of twenty thousand Ghana cedis (GH₵20,000.00)
by way of general damages,
claimed by the fifth relief. The
Court appears to have rejected
the third relief asking for
payment of his salary and other
benefits from 1st February 2008
as well as the fourth relief for
special damages equivalent to
two years annual gross salary.
The court’s reasoning was that
special damages must be
specifically proven. Obviously
the court below got it wrong in
the light of the authorities.
The reasoning in the Agbettoh
case which was cited with
approval by this court in the
Valco case should have served as
a guide to the court below. The
court stated that to show its
displeasure at the dismissals in
the light of the constitutional
provision, it awarded two years’
salary to the plaintiffs in the
Agbettoh case. The court in both
the Agbettoh case and the Valco
also took into account the fact
that the plaintiffs were under a
duty to mitigate their losses by
looking for alternative
employment and that it was
unreasonable to ask to be paid
salary and benefits for the
whole period that they stayed at
home doing nothing for the
employers. As already stated, in
the Agbettoh case the court
awarded two years’ salary,
whilst in the Valco case the
Supreme Court endorsed the one
year salary awarded by the trial
High Court. These are the
principles that should guide the
court, and should not be treated
as a claim for special damages.
Admittedly, the court below must
have been misdirected by the
nature of the reliefs endorsed
on the writ.
On the facts of this case, it is
clear the police administration
treated the plaintiff’s case
with disdain, contempt and
high-handedness, which we very
much deplore. They did not even
acknowledge his petitions, let
alone to act on them. It was
after he had exhausted all
avenues open to him that he
resorted to court action. In the
circumstances, and taking into
account the rather difficult
situation in securing
employment, and the fact that
the salary as at 2008 values far
less than it is today in the
light of cedi devaluation, we
make an award of two years basic
salary attached to the post of
Police lance corporal as of
today. The court below, in its
discretion, awarded GH₵20,000 as
general damages; this was not in
issue as same was not contested,
so we affirm it. In addition the
court also awarded him his
earned salary for the period
February to July 2008 when he
was on interdiction. The
plaintiff is adjudged to recover
the said salary attached to the
post of a lance corporal as at
that time, that is the period
February to July 2008 by way of
special damage, together with
interest on the amount found due
on this head at the prevailing
bank rate from 1st
August 2008 to date of payment.
The appeal therefore succeeds to
the extent stated herein.
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JOSEPH KAPONDE
FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
WILLIAM KPOBI, CHIEF STATE ATTORNEY FOR THE DEFENDANTS/RESPONDENTS/RESPONDENTS. |
