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Employment - Termination of
employment - Judicial Review -
CI 47 High Court [Civil
Procedure] Rules - Order 55 -
Whether
termination of employment of the
applicants was unlawful -
Whether
termination
of appiont by Board
chairman unlawful and a
violation of due process and
relevant service conditions of
NABPTEX and Civil Service of
Ghana as well as the 1992
Constitution of Ghana.- Whether
or not the High Court had no
jurisdiction to entertain the
matter - Whether the procedure
of judicial review adopted by
the appellants for redress was
inappropriate.
HEADNOTES
The facts of this appeal appear
not to be in controversy
whatsoever. The appellants
herein were at the material time
to these proceedings senior
officers of the first respondent
herein. The first respondent,
the National Board for
Professional and Technical
Examinations (NABPTEX) is a
statutory body set up under Act
492 of 1994, with the core
mandate to formulate and
administer examinations,
evaluations, assessments,
certification and standard, for
skill and syllabus competence
for non-university tertiary
institutions, professional
bodies and private institutions
with due accreditation. The
second respondent was the board
chairman of the first respondent
and the third respondent was the
Executive Secretary of the first
respondent. The fourth
respondent is the
Attorney-General
constitutionally mandated to
represent the Government of
Ghana. The evidence on record
revealed that the 2013 May/June
certificate II core subject
Examinations was organized by
the first respondent as part of
its statutory responsibilities
including the supervision of the
examinations. The
uncontroverted evidence
established that the integrity
of the said examinations was so
compromised following a massive
leakage nationwide resulting in
the cancellation of the
examinations which ultimately
had to be reorganized. As the
massive leakage had embarrassed
the first respondent for not
delivering on its core mandate,
the first respondent therefore
constituted a committee to
investigate the leakage. During
the investigations into the
leakage, the appellants were
asked to proceed on leave in
order not to impede the
investigations. The appellants,
were not given the outcome of
the investigations and same was
not disclosed. The appellants
were invited to appear before a
Disciplinary Committee at which
charges were preferred against
them. Upon their appearance,
the appellants were served with
letters of interdiction and
finally with letters terminating
their appointments. The
appellants did not take it lying
down and resorted to the
judicial process by instituting
these proceedings at the High
Court by way of judicial
review. The procedure will be
addressed later in this delivery
as it formed the basis for the
dismissal of the appeal before
the Court of Appeal. -
HELD :-
We think that with the
above accurate statement of the
law by the Court of Appeal, it
should have intervened to quash
the letter terminating the
appointments of the appellants
when the respondents woefully
failed to take the appellants
through the due process as
required by the provisions of
the Constitution. Failure of
the Court of Appeal to intervene
when there was obvious violation
of Articles 191 and 23 of the
1992 Constitution should be
deemed as an error for the
allowance of the appeal. We
think that a case of lack of due
process was sufficiently made by
the appellants to warrant the
intervention of both the High
Court and the Court of Appeal.
We accordingly proceed to quash
the letter terminating the
appointments of the appellants
for the reasons above stated and
allow the appeal.
STATUTES REFERRED TO IN JUDGMENT
High Court [Civil
Procedure] Rules, CI 47 of 2004
Order 55
1992 Constitution of
Ghana. article 23
Representation of the
People Law, 1992 PNDC L 284
section 16(1)
NATIONAL BOARD FOR PROFESSIONAL
AND TECHNICIAN EXAMINATIONS ACT,
1994 (ACT 492)Act 492
of 1994,
CASES REFERRED TO IN JUDGMENT
TIMITIMI v AMUABEBE [1953] 14 WACA
374.
BOYEFIO v NTHC PROPERTIES LTD
[1997-98] IGLR 768
REPUBLIC v COMMITTEE OF INQUIRY INTO
NUNGUA TRADITIONAL AFFAIRS; EX
PARTE ODAI IV & OTHERS [1996-97]
SCGLR 401
MR in RE PERGAMON PRESS LTD [1971] 1
CH 388 at 399
REPUBLIC v HIGH COURT, ACCRA; EX PARTE
ALLGATE CO. LTD (AMALGAMATED
BANK LTD INTERESTED PARTY)
[2007-2008] SCGLR 1041
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
YEBOAH, JSC:-
COUNSEL.
K. AMOFA AGYEMANG WITH HIM
IDDRISDU MUNJAWILU FOR THE
PLAINTIFFS/
APPELLANTS/APPELLANTS
CAROLINE STEVEN SACKEY FOR
THE DEFENDANTS/ RESPONDENTS/
RESPONDENTS
ญญญญญญญญญญญญญญญญญ
YEBOAH, JSC:-
On the 17/12/2013, the appellants
herein applied for judicial
review under Order 55 of the
High Court [Civil Procedure]
Rules, CI 47 of 2004 for the
following reliefs;
(a). A declaration that the
termination of employment of the
applicants as contained in the
letters dated 28th
November 2013 is unlawful.
(b). An order of certiorari to bring
and quash the decision of the
Board chairman of NABPTEX to
terminate the employment of the
applicants as being unlawful
violation of due process and
relevant service conditions of
NABPTEX and Civil Service of
Ghana as well as the 1992
Constitution of Ghana.
(c). An Order of interim injunction
restraining the respondents from
employing anybody to fill the
positions of the applicants
pending the final conclusion of
this matter.
(d). An order of Mandamus compelling
the Executive Secretary and
Board of NABPTEX to reinstate to
applicants to their previous
positions before the unlawful
termination of their employment
and payment of all their
salaries arrears and allowances
to them.
(e). Any further order(s) as this
court may deem meet.
The facts of this appeal appear not to
be in controversy whatsoever.
The appellants herein were at
the material time to these
proceedings senior officers of
the first respondent herein.
The first respondent, the
National Board for Professional
and Technical Examinations
(NABPTEX) is a statutory body
set up under Act 492 of 1994,
with the core mandate to
formulate and administer
examinations, evaluations,
assessments, certification and
standard, for skill and syllabus
competence for non-university
tertiary institutions,
professional bodies and private
institutions with due
accreditation. The second
respondent was the board
chairman of the first respondent
and the third respondent was the
Executive Secretary of the first
respondent. The fourth
respondent is the
Attorney-General
constitutionally mandated to
represent the Government of
Ghana.
As said earlie,r the appellants were
senior officers of the first
respondent and both of them were
engaged in 2006 under Act 492,
the governing statute of the
first respondent and their
service conditions were also
regulated under the said Act.
The first appellant was employed
as Deputy Executive Secretary
rose to become Acting Executive
Secretary for a period of six
months before reverting to his
former position of the Deputy
Executive secretary, which
position he held at the material
time to these proceedings.
The second appellant was engaged as
Assistant Curriculum Development
and Research Secretary and was
promoted to the position of Test
Development Secretary till the
appointment was terminated in
2003.
The evidence on record revealed that
the 2013 May/June certificate II
core subject Examinations was
organized by the first
respondent as part of its
statutory responsibilities
including the supervision of the
examinations. The
uncontroverted evidence
established that the integrity
of the said examinations was so
compromised following a massive
leakage nationwide resulting in
the cancellation of the
examinations which ultimately
had to be reorganized. As the
massive leakage had embarrassed
the first respondent for not
delivering on its core mandate,
the first respondent therefore
constituted a committee to
investigate the leakage.
During the investigations into the
leakage, the appellants were
asked to proceed on leave in
order not to impede the
investigations. The appellants,
were not given the outcome of
the investigations and same was
not disclosed. The appellants
were invited to appear before a
Disciplinary Committee at which
charges were preferred against
them. Upon their appearance,
the appellants were served with
letters of interdiction and
finally with letters terminating
their appointments. The
appellants did not take it lying
down and resorted to the
judicial process by instituting
these proceedings at the High
Court by way of judicial
review. The procedure will be
addressed later in this delivery
as it formed the basis for the
dismissal of the appeal before
the Court of Appeal.
The learned High Court judge in a
detailed ruling delivered on the
29/10/2014 granted all the
reliefs sought by the appellants
and ordered that the appellants
be restored to their respective
positions in the first
respondent’s institution. The
respondent lodged an appeal to
the Court of Appeal, Accra, on
several grounds. The Court of
Appeal on 30/07/2015 allowed the
appeal. It however, considered
the matter on the merits after
declaring that the High Court
had no jurisdiction to entertain
the matter on procedural
grounds.
The appellants thereafter lodged this
appeal before this court to seek
the reversal of the judgment of
the Court of Appeal on several
grounds. In our respectful
opinion ground (vi) which deals
with the jurisdiction of the
High Court to entertain these
proceedings must be seriously
addressed. It states thus:
“(iv). The Court of Appeal erred when
it set aside the entire ruling
of the High Court solely on the
basis that the procedure of
judicial review adopted by the
appellants for redress was
inappropriate”.
As said earlier the issue of
jurisdiction was addressed by
the Court of Appeal in its
judgment and it was on that
basis that the Court of Appeal
allowed the appeal when it held
thus:
“Although on the evidence we find that
the termination of the
respondents was not done in
compliance with Article 191 of
the 1992 Constitution which
required just cause, we find
that we are unable to agree with
the trial judge that the case
was made out for the decision to
be quashed by resort to
certiorari and for the
respondents to be reinstated
upon the operation of an order
of mandamus. The procedure of
judicial review adopted by the
respondents being clearly wrong
for the redress they sought, the
findings and remedies consequent
upon them cannot stand”
The above holding led the Court of
Appeal to allow the appeal. It
is trite learning that
jurisdiction is fundamental to
every proceedings and therefore
if a court of law or tribunal
lacks jurisdiction to hear or
determine any matter, the
decision or order from the Court
or tribunal is a nullity. See
the case of TIMITIMI v AMUABEBE
[1953] 14 WACA 374.
In our respectful view, it behoves
every court hearing a matter to
address the issue of
jurisdiction first if it is
raised as an issue. If a court
upon embarking on an inquiry
finds that its jurisdiction has
been put in issue later on in
the proceedings, it must address
in as it is fundamental to every
proceedings. In this appeal,
the court of Appeal ought to
have addressed the
jurisdictional issue first
before dealing with the merits
of the appeal in its entirety.
It was, indeed, at the
conclusion stage of the judgment
that the Court of Appeal stated
that it had no jurisdiction
given the procedure the
appellants had adopted at the
High Court.
As said earlier, the proceedings
culminating in this appeal
originated at the High Court. It
cannot be said that the High
Court as a superior court of
jurisdiction established under
the constitution had no
jurisdiction in matters of this
nature. The Court of Appeal
concerned itself with the
procedure adopted by the
appellants in the nature of
judicial review which denied the
court jurisdiction to determine
the matter. A court may have
jurisdiction to entertain a
cause or matter but the
procedure invoking its
jurisdiction may deny the court
the jurisdiction. This usually
occurs when a statute has
specifically laid down the
procedure for redress. See the
case of BOYEFIO v NTHC
PROPERTIES LTD [1997-98] IGLR
768. Cases which fall under the
representation of the People
Law, 1992 PNDC L 284 section
16(1) must be commenced by
petition at the High Court in
respect of Parliamentary
Election petitions. Any resort
to a procedure not sanctioned by
the statute would deny the High
Court of jurisdiction. In this
appeal, the Court of Appeal was
of the opinion that judicial
review was inappropriate. The
High Court [Civil Procedure]
Rules CI 47 of 2004, Order 2
rule 2 states thus;
“(2) Subject to any existing enactment
to the contrary all Civil
Proceedings shall be commenced
by the filing of a writ of
summons”
It should be made clear that the
statute creating the first
respondent, that is, National
Board for Professional and
Technical Examinations Act,
1994, Act 492 does not prescribe
any procedure to commence legal
proceedings if a citizen is
seeking redress under the
statute. It therefore follows
that the resort to the High
Court [Civil Procedure] Rules CI
47 was appropriate; but the
issue is whether judicial review
was the appropriate procedure in
these proceedings. Generally
speaking in actions for wrongful
dismissal the plaintiff issues a
writ in compliance with order 2
rule 2 of the High Court Civil
Procedure Rules. In these
proceedings however, the
appellants were facing a
Disciplinary Committee which had
been set up to consider the
damming allegation of nationwide
leakage of exanimations. A very
serious matter indeed.
The Disciplinary Committee set up to
conduct the investigations did
not offer the appellants any
hearing and never published any
adverse findings allegedly
established against the
appellants. The Court of Appeal
found that the appellants indeed
were made to appear before a
Disciplinary Committee and later
a Committee of Inquiry but were
never heard. As the statute
creating the first respondent
makes it a public institution it
owes a duty to the employees
like the appellants to go
through the due process. It
cannot be said that the first
respondent as a public
institution created by an act of
Parliament and empowered to
perform crucial services to the
public should not be amenable to
judicial review if it flouts due
process in determining the
rights involving its workers
like the appellants. Another
point which eluded the Court of
Appeal was article 23 of the
1992 Constitution which states
thus;
“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”
Administrative bodies are generally
controlled by resort to judicial
review which in most cases
afford speedy and less expensive
mode of trial. The High Court
[Civil Procedure] Rules CI 47 of
2004 has specifically spelt out
the orders which a High Court
may in the exercise of its
jurisdiction under Order 55 rule
2(1) make. It states thus:
“2(1) on hearing of an application for
judicial review, the High Court
may make any of the following
orders as the circumstances may
require
a.
An order for prohibition,
certiorari or mandamus
b.
An order restraining a
person from acting in any public
office in which that person is
not entitled to act;
c.
Any other injunction
d.
Devaration
e.
Payment of damages
It is clear from the reading of the
rules that all the reliefs
sought by the appellants could
in appropriate cases be granted
by a High Court in hearing an
application for judicial
review. It does appear that the
new rules has widened the scope
of orders which a High Court
seised with jurisdiction for
judicial review could make in
appropriate case. What was
sought to be quashed by
certiorari was the decision
which both courts held were
given without hearing. In the
case of REPUBLIC v COMMITTEE OF
INQUIRY INTO NUNGUA TRADITIONAL
AFFAIRS; EX PARTE ODAI IV &
OTHERS [1996-97] SCGLR 401 this
court after examining the case
law expanded the scope of
certiorari and made it clear
that “any fact finding tribunal
or commission of inquiry,
whether statutory or not, which
has made any decision based on
evidence, affecting rights of
subjects would be “acting
judiciary” and would thus be
amenable to supervisory
jurisdiction of the courts”.
This court relied on the oft-quoted
dictum of Lord Denning MR in RE
PERGAMON PRESS LTD [1971] 1 CH
388 at 399 where the law was
stated thus:
“Seeing that their work and their
report may lead to such
consequences, I am clearly of
the opinion that the inspectors
must act fairly. This is a duty
which rests on them as on other
bodies even though they are not
judicial or quasai-judicial but
only administrative”
Another issue which the learned
justices of the Court of Appeal
took into consideration and
allowed the appeal was the fact
that the resort of judicial
review limits the courts to only
documentary evidence and
affidavit evidence which may not
lead to satisfactory findings of
fact upon which a determination
may be made. The settled
practice is that in hearing
cases which are commenced not by
writ but by originating notice
of motion, strictly bound to
only consider the affidavit and
documentary evidence in the
application. If a court in
considering the matter is of the
view that oral evidence is
needed to prove crucial facts
the determination of which would
advance substantial justice it
could order the taking of oral
evidence and could even order
the filing of pleadings in
appropriate cases to assist the
court and the parties to arrive
at a just conclusion. In this
case, it appeared that the
parties never had any difficulty
with the affidavit and
documentary evidence on record.
With due respect to the Court of
Appeal, it was wrong for it to
conclude that the procedure was
inappropriate for lack of
findings of facts in
determination of the matter at
the High Court.
This court in the case of REPUBLIC v
HIGH COURT, ACCRA; EX PARTE
ALLGATE CO. LTD (AMALGAMATED
BANK LTD INTERESTED PARTY)
[2007-2008] SCGLR 1041, which
appears to be one of the first
cases on non-compliance upon the
coming into force of the current
High Court [Civil Procedure]
Rules CI 47 of 2004, has laid
down the guidelines for
determination of circumstances
under which non-compliance could
be treated as a nullity. In the
view of this court,
non-compliance will nullify
proceedings if the irregularity
complained of amounts to a
breach of the Constitution or a
statute [e.g. Peoples
Representation Law PNDC L284 of
1992] or breach of the rules of
natural justice. We think that
the above pronouncement of this
could should lead us to conclude
that as the application for
judicial review is sanctioned by
Order 55 of the High Court rules
any irregularity complained of
should not be declared as a
nullity. The proceedings under
consideration was mounted
purposely to quash the letter
from the first respondent
terminating the appointments of
the appellants. This was even
acknowledged by the Court of
Appeal when it observed as
follows:
“In the exercise of their functions,
administrative bodies set up
implement executive policies
exercise judicial or
quasi-judicial functions that
determine the rights of persons
in relation to inter alia,
executive policy and/or their
implementation. Judicial review
is the power of the court to
ensure that such activity that
affects the rights of persons is
done fairly. It controls public
administration by checking the
abuse or misuse of public power”
We think that with the above accurate
statement of the law by the
Court of Appeal, it should have
intervened to quash the letter
terminating the appointments of
the appellants when the
respondents woefully failed to
take the appellants through the
due process as required by the
provisions of the Constitution.
Failure of the Court of Appeal
to intervene when there was
obvious violation of Articles
191 and 23 of the 1992
Constitution should be deemed as
an error for the allowance of
the appeal.
We think that a case of lack of due
process was sufficiently made by
the appellants to warrant the
intervention of both the High
Court and the Court of Appeal.
We accordingly proceed to quash
the letter terminating the
appointments of the appellants
for the reasons above stated and
allow the appeal.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
S. A. B. AKUFFO
(MS)
(CHIEF JUSTICE)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
K. AMOFA AGYEMANG WITH HIM
IDDRISDU MUNJAWILU FOR THE
PLAINTIFFS/ APPELLANTS/
APPELLANTS
CAROLINE STEVEN SACKEY FOR
THE DEFENDANTS/ RESPONDENTS/
RESPONDENTS
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