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This is an application by Moses
Ahiakpa, the applicant herein,
invoking the supervisory
jurisdiction of this court
praying for an order to bring
up; and to be quashed a decision
of the Bureau of National
Investigation (BNI) which
resulted in the removal of the
applicant from the Bureau of
National Investigation. The
decision, the subject, of this
application is dated 1st
August 2011. It has been
exhibited by the applicant as
Exh ‘A’. It is signed by the
Director of BNI, in the person
of Yaw Donkor. The Bureau of
National Investigation, shall
hereafter be referred to simply
as the respondent.
The relevant part of Exh ‘A’
reads as follows:
“2. The Trial Panel found you
guilty of two (2) counts of the
offences bordering on misconduct
contrary to section 76(1) (d) of
the Civil Service Law 1993,
PNDCL 327 and recommended a
punishment of reduction in rank
pursuant to section 78(1) (c) of
the Civil Service Law 1993,
PNDCL 327.
3. The Disciplinary Board in
reviewing the Proceedings of the
Trial Panel substituted a
punishment of REMOVAL as
provided for in Section 78(1)
(b) of the Civil Service Law
1993, PNDCL 327 which was
endorsed by the Director/BNI.
4. Consequently, you are removed
from the Bureau with effect from
1st August, 2011.
5. You are to hand over any
property of the Bureau entrusted
in your custody and avail
yourself to your Regional
Commander to be sworn out.”
The decision contained in Exh
‘A’ brought the contract of
employment of the applicant with
the respondent to an abrupt end.
I have used the phrase ‘abrupt
end’ because in the normal
scheme of things, the applicant
would have retired from active
service upon attaining the age
of 60 years. This was never to
be because of the reasons
expressed in Exh ‘A’. The
applicant is peeved, naturally,
about his premature exit from
his employment and has sought in
this application to impugn the
decision (Exh ‘A’); and the
decision making process itself
on a couple grounds. The grounds
include procedural impropriety
and the lack of jurisdiction on
the part of respondent and its
agents in taking the decision
contained in Exh ‘A’. The
applicant holds the view
therefore that his purported
removal from office can not pass
the litmus test of legal
scrutiny.
The question to answer is this:
What engendered the removal of
the applicant from office? Until
his removal, the applicant had
been a faithful servant of the
respondent for 23 years. The
inference is that he possessed
the requisite qualification
attached to the position he
applied for and subsequently
upgraded himself by the
acquisition of the necessary
skills and upon obtaining the
needed certificate. Out of the
blue, questions were raised
about the authenticity or
genuineness of his documents. As
a result, a query was served on
the applicant to answer. The
query was dated 19th
April, 2011. The query was as
follows:
“QUERY
You are to explain in writing
why disciplinary action should
not be taken against you for,
(i)
Presenting a false testimonial
dated 22nd November,
1990 from Srawa Engineering
Company Limited in support of
your application dated 21st
May, 2011 for upgrading to
Field/Desk Officer (FDO).
(ii)
Presenting a false birth
certificate issued on 27th
January, 1993 in the name of
Philip Kwame AHIAKPA born on 10th
October, 1968 at Accra Knowing
very well that you were born in
LIKPE in the VOLTA Region and
have indicated so on all forms
that you have filled since
joining the Organisation, and
(iii)
Falsely indicating that you have
a Basic Education Certificate
Examination (BECE) Certificate
in the name of Philip Kwame
AHIAKPA which you obtained after
writing the BECE in 2000 at
Konkonuru Methodist Junior High
School (JHS) in the Eastern
Region with index number
211018002.
2. Your response to reach Head
Section II by close of work 21st
April 2011.
For: DIRECTOR/BNI
(N. N. SHEINI)
THRO: RC/BNI/AR
TO: SAI MOSES AHIAKPA”
The applicant did not hesitate
in responding to the query. On
21st April, 2011, he
tendered his reply, the details
of which are reproduced below as
follows:
“Dear Sir,
RE-QUERY
Please refer to yours No.
PSF/SA/307/133 dated 19th
April, 2011 on above subject
matter, accusing me of giving
false Testimonial, Birth
Certificate and Basic Education
Certificate. I wish to explain
that it is not so and state as
follows:
(i)
In the case of Testimonial, I
wish to state that I learnt the
job from my master called KOTEI
who chose to use that company’s
name for his personal
Testimonial and that the man is
deceased. One Benjamin @
PAKIJOE, an Electrician near
TOBINCO Pharmaceuticals,
KOTOBABI can testify to that
effect.
(ii)
About the Birth Certificate, my
parents could not give me any
birth certificate but one of my
uncle’s called WINFRED KALETEY,
who is deceased, was the one who
testified that I was born in
October, 1966 at LIKPE. This was
the very date I recorded on my
PN Form. I would like to state
that it was a mistake if I
presented a different date of
birth in respect of Philip Kwame
AHIAKPA and ask for forgiveness.
(iii)
Concerning my Basic Education
Certificate Examination (BECE) I
wish to state that it is not a
false certificate. I did not
attend KONKONURU Methodist
Junior High School but only went
to register, with the school for
the examination with the
assistance of my cousin who was
a teacher at KITASE near
KONKONURU. I wish to state that
I have not yet collected my
certificate and shall present it
immediately after the Easter
Holidays.
2. Sir, I wish to state that I
am the same person and not
trying to make a false
declaration. I would, therefore,
be grateful if the issue is
investigated to set the records
straight.
Yours Faithfully,
(SGD.) S/A 1 MOSES AHIAKPA
THRU: RC/BNI/AR
To: HS/11”
The applicant’s prayer for
forgiveness was not favourably
considered. The applicant, it
seems to me, was unable to show
cause why disciplinary action
should not be taken against him.
The respondent as a result
decided to conduct a full scale
investigation into the matters
alleged in the query, and to
quote the applicant, “to set the
records straight.”
He was notified of the decision
to institute formal disciplinary
proceedings against him.
Accompanying the notification
letter was a copy of the charge
sheet setting out in very clear
terms the offences preferred
against him and the particulars
thereof. For a better
understanding and appreciation
of the pre-trial proceedings, I
reproduced below the
notification letter and the
charge sheet annexed to it as
follows:
“CONFIDENTIAL
MEMORANDUM
FROM: ASO/MR. YAHAYA
ENUSAH, CHAIRMAN OF TRIAL PANEL.
TO: SA/I MOSES
AHIAKPA
FILE NO: SF.
53/OPS/VOL. 8/167
DATE: 12TH
MAY, 2011
SUBJECT: FORMAL PROCEEDINGS
UNDER CIVIL SERVICE LAW 1993,
PNDC LAW 327.
_________________________________________________________________
Following your presentation of a
false testimonial, a false birth
certificate and falsely
indicating to the Bureau that
you possess a Basic Education
Certificate Examination (BECE)
Certificate in the name of
Philip Kwame AHIAKPA, you are
hereby informed that formal
proceedings have been instituted
against you.
2. You are being reminded that
you have three (3) days to
respond to this notification by
submitting a written statement.
3. You may also call any
witness(es) in your defence and
have the right to be represented
by any counsel of your choice.
4. Gratefully find attached a
copy of the charge sheet in
respect of your trial.
5. Regards.”
This is how the charge sheet was
formulated:
“PSF/SA/307/138
5TH MAY, 2011
FORMAL PROCEEDINGS UNDER CIVIL
SERVICE LAW 1993 PNDCL 329
SECTION 80(1)
NAME: S/A 1 MOSES AHIAKPA
SECTION: BNI ACCRA REGION
Following your presentation of a
false testimonial, a false birth
certificate and falsely
indicating to the Bureau that
you possess a Basic Education
Certificate Examination (BECE)
Certificate in the name of
Philip Kwame AHIAPKA, the
Director/BNI has instructed the
BNI Disciplinary Board in
accordance with the powers
vested in it under Section 79 of
the Civil Service Law 1993, PNDC
Law 327 to commence a formal
trial into your conduct on the
following charges:
Count 1
Statement of Offence
Misconduct, contrary to section
76(1) (d) of the Civil Service
Law, 1993 (PNDC Law 327)
Particulars of Offence
2. For that you, SA 1 Moses
AHIAKPA, presented a false
testimonial dated 22/11/90 from
Srawa Engineering Company
Limited in support of your
application dated 21/05/09 for
upgrading to field Desk Officer
(FDO), an act which amounts to
dishonesty and tends to bring
the Bureau into dispute.
Count 2
Statement of Offence
Misconduct, contrary to section
76(1) (d) of the Civil Service
Law, 1993 (PNDC Law 327)
Particulars of Offence
3. For that you, SA 1 Moses
AHIAKPA, presented a false birth
certificate issued on 27/01/93
in the name of Philip Kwame
AHIAKPA born on 10/10/68 at
ACCRA, in support of your
application to change your name,
knowing very well that you were
born in LIKPE in the Volta
Region and have filled since
joining the organization, an act
which amounts to dishonesty and
tends to bring the Bureau into
dispute.
Count 3
Statement of Offence
Misconduct, contrary to Section
76(1) (d) of the Civil Service
Law, 1993 (PNDC Law 327)
Particulars of offence
4. For that you, SA 1 Moses
AHIAKPA, falsely indicated to
the organization that you have a
Basic Education Certificate
Examination (BECE) Certificate
in the name of Philip Kwame
AHIAPKA which you obtained after
writing the BECE in 2000 at
KONKUNURU Methodist Junior High
School (JHS) in the Eastern
Region with index number
211018002, knowing very well
that you did not write the
examination, an act which
amounts to dishonesty and tends
to bring the Bureau into
disrepute.
5. The BNI Disciplinary Board
has in accordance with the
powers vested in it under
Section 70 (2) of the Civil
Service Law 1993, PNDCL 327
nominated the following officers
to hold an inquiry into your
conduct.
PANEL MEMBERS
i.
ASO/MR. YAHAYA ENUSAH
ii.
FDO III COLLINS BOAMAH
iii.
SG JOSEPH ADDO AYISI
6. The Panel is reminded that
the proceedings should be
completed within seven (7) days
on receipt of this mandate.
DISCIPLINARY BOARD MEMBERS
(SGD) MR. JOHN DOGBA (AG. DD/BNI
(SGD) CSO MR. T. K. A. COLEMAN
(SGD) SO/MS. JOYCELYN ACQUAYE”
By this, the stage was set for
the disciplinary proceedings to
begin. The applicant freely and
voluntarily submitted himself to
the inquiry. He attended the
inquiry with his lawyer and
actively participated in the
proceedings. He called
witnesses. He was ably aided by
his lawyer to put up a strong
and formidable defence to defuse
the charges preferred against
him. I think, he desired to come
out victorious and thus set the
records straight.
At the end of the inquiry, the
trial panel presented its report
to the Disciplinary Board which
has the mandate to take a
decision on the matter. The
Disciplinary Board reviewed the
proceedings and the
recommendations of the trail
panel and came out with the
decision contained in Exhibit A.
I have already referred to the
relevant and operative part of
Exhibit A but it suffice to say
that the upshot of all the
processes was the removal of the
applicant from the respondent
organization.
The applicant is asking for the
quashing order on a number of
grounds and it would be
appropriate at this stage to
look at the facts and grounds on
which he relies. Some of the
grounds are suffused in the
affidavit in support of the
motion paper and others were
filed pursuant to leave granted
by the court as additional
grounds. I shall reproduce
paragraphs 5-17 of the affidavit
in support to reveal the facts
and grounds expressed therein.
The said paragraphs are as
follows:
“5. That I have been advised by
my counsel of which I verily
believe that as an employee of
the security and intelligence
service it is wrong in law to be
charged of any offences or for
any disciplinary proceedings
against me under the Civil
Service Law PNDCL 327.
6. That I have again been
advised that the offences I am
accused of are not those that
tend to bring the Bureau into
disrepute and are bad in law.
7. That however the panel found
me guilty on two (2) unspecified
counts of the said charges.
8. That the purported findings
of the Panel are against the
weight of evidence.
9. That I was not availed any
opportunity to appeal.
10. That on the 1st
of August, I received a notice
of removal form employment
effective the same day.
11. That my counsel has advised
and I solemnly believe that
rules of natural justice were
breached and my removal is
without just cause.
12. That my removal is unjust
and tantamount to a compulsory
retirement from the public
service.
13. That the disciplinary
proceedings are fraught with
fatal elementary legal errors
according to my counsel and
which I believe to be true.
14. That even though the panel
recommended a reduction in my
rank the disciplinary board
substituted a punishment of
removal without any reason which
substitution was endorsed by the
Director of BNI without any
justification (vide copy of
removal order attached EXH ‘A’.
15. That the substitution is
harsh, arbitrary and capricious
and amount to an abuse of
discretion.
16. That as an employee of the
Security and intelligence
service, I have been advised by
my counsel that I am subject to
disciplinary proceedings for the
time being under the Police
Service disciplinary proceedings
or that of the Public Services
and not Civil Service.
17. That from the foregoing, the
whole proceedings is
unconstitutional, null and void
ab initio.”
The additional grounds were
intended to augment those in the
affidavit in support. By an
affidavit sworn to by Mathias
Kwasi Yakah, Counsel for the
applicant on 29th
November, 2011, the under
mentioned additional grounds
were set out in paragraphs 3, 6
and 7. These are:
“3. That pursuant to leave
granted by this honorable court,
the following are additional
grounds that the applicant
relies on:
i)
Jurisdictional error in law as
the panel, the Disciplinary
Board and the Director BNI
lacked any jurisdiction under
PNDCL 327 I.E. Civil Service Law
1993.
ii)
The proceeding is inconsistent
with the Public Officers Act of
1960 (Act 114).
iii)
The Director BNI, the
Disciplinary Board and the Panel
are estopped in equity to
proceed against him for a
misconduct he is alleged to have
committed more than 10 years
ago.
iv)
Under a proper interpretation of
Act 526 i.e. the Security and
Intelligence Agencies Act of
1996 (Act 526) Parliament
intended and it is mandatory
that all employees of the BNI
must exercise and enjoy all
powers, rights, benefits and the
protection of that of a police
officer.
6. That apart from certiorari to
quash, applicant asks for the
following reliefs: Mandamus to
compel the Director, to allow
Applicant to work or in the
alternative to be posted
elsewhere to work within the
Security and Intelligence
Agency.
7. His reinstatement to work as
an employee of the Security and
Intelligence Agency, with the
effect form the day of his
removal …”
Before I discuss the issues
joined by the parties and
stridently argued by the two
lawyers, let me observe that
some of the grounds relied upon
by the applicant do not fall
within the ambit of certiorari
and are therefore quite
irrelevant in this application.
For example, the fact that the
findings of the trial panel is
against the weight of evidence
is not a ground that calls for a
quashing order. Similarly, the
fact that the applicant was not
afforded a channel of appeal is
not an error that could be
quashed by certiorari. I think,
these are grounds upon which the
applicant could rely on, in an
action commenced by a writ to
have the decision of respondent
set aside.
I also do not find the relevance
of grounds ii.iii. 6. And 7 of
the additional grounds in the
instant application. Indeed, the
Public Officers Act, 1960, Act
114 which is relied upon in
ground ii, is totally
inapplicable to this case.
Additionally, grounds iii, 6 and
7 are misplaced. No wonder
counsel for the applicant did
not advance any arguments on
them. Nonetheless, it is
important to note that in
Certiorari applications, an
applicant is required to confine
his grounds and arguments to the
traditional grounds that is well
established by law and have been
consistently applied by the
courts from time immemorial. It
is common knowledge that
certiorari will lie to quash a
decision when it is established
that there was a breach of the
rules of natural justice or on
grounds of law on the face of
the record if such error went to
jurisdiction or was so obvious
as to make the decision a
nullity. Authorities on this are
legion. The instant application
has to be decided in this light.
I wonder how an applicant in a
certiorari application will ask
for re-instatement; and how can
the judge twist the law in a
certiorari application and issue
an order in the nature of
mandamus to compel the
respondent to do or abstain from
doing a certain act when the
applicant has not in the first
place put in a demand. I find
that a number of undesirable
grounds have been introduced
into this application, and
notwithstanding the fact that
counsel for the applicant did
not canvass any legal arguments
on them, the court has a duty to
separate the grains form the
chaff. It seems to me that
counsel for the applicant
realized the inapplicability of
these grounds and decided to
abandon them, hence his decision
not to address the court on
those grounds in the course of
his submissions.
What then are the grounds on
which the applicant relies? From
the affidavits filed and the
submissions made by the two
lawyers, I distill the
underlisted grounds. These are:
1.
That the proceedings which
culminated in the removal of the
applicant from respondent
organization is fraught with
elementary errors.
2.
That the trial panel and the
Disciplinary Board failed to
observe the rules of natural
justice.
3.
That in the absence of
respondent’s own disciplinary
regulations, and as an employee
of the Security and Intelligence
Service, the applicant is
subject to disciplinary
proceedings under the Police
Service disciplinary proceedings
or that of the Public Service
and not that of the Civil
Service.
4.
That by purporting to prefer
charges under the Civil Service
Act, PNDCL 327 against the
applicant, the trial panel and
the Disciplinary Board were
bereft of jurisdiction to try
him.
5.
That the applicant was removed
from office without just cause.
6.
That the Disciplinary Board’s
decision to substitute the
punishment of removal from
office for the punishment of
reduction in rank recommended by
the trial panel is harsh,
arbitrary, capricious and amount
to an abuse of discretion.
I must confess my difficulty in
discussing the grounds listed
above singularly. By the nature
of the case, the facts alleged
and the submissions made by the
lawyers, I find the grounds so
interlaced that I may have to
discuss some of them in tandem.
I hope, however, that I would be
able to discuss all the grounds
in whatever form I choose to
deal with the matter.
I shall begin by making a
statement, which incidentally is
a cardinal principle of our law
and particularly of
administrative justice that
persons who are under a duty to
observe the ordinary principles
upon which justice is
administered. Principal among
them is the rules of natural
justice. The requirement of fair
hearing must be strictly adhered
to. The common law rule of fair
hearing has now been elevated to
a Constitutional requirement.
Article 23 of the 1992
Constitution imposes a strict
obligation on all adjudicating
bodies to be fair. The
requirement of fair hearing can
therefore not be sacrificed on
the altar of convenience or for
any other reason. Fair hearing
does not lie in the correctness
of the decision made or to be
made. It lies entirely in the
procedure to be followed in
arriving at the decision and how
the defendant was treated at the
trial. I shall apply the test I
have just expressed in resolving
some of the grounds alleged by
the applicant.
It is one thing alleging a
certain state of fact and
another thing adducing evidence
to persuade or convince the
court that the alleged state of
fact really exist. In the
instant case, the applicant
alluded to the breach of natural
justice and fundamental errors
in the proceedings that
eventually terminated his
employment with respondent
organization. It is unfortunate
that no single evidence was
adduced to substantiate these
allegations. The nearest counsel
for the applicant could go is
his submission that because
there was no channel of appeal,
there has been a breach of the
rules of natural justice. I find
it difficult to comprehend this
argument. Fair hearing and the
observance of the natural
justice rule do not apply after
the conclusion of a trial. I
concede that if there is an
appeal, the appellant ought to
be heard. But the absence of a
channel of appeal, per se, does
not amount to a breach of the
rules of natural justice.
On the contrary, from the
proceedings, there is enough
evidence to show that the
respondent conducted its affairs
with utmost care and in
conformity with the rules of
natural justice and fair
hearing. I have observed
particularly that the pre-trial
proceedings were impeccable. It
is not in controversy that the
applicant was served with a
query from the very onset. The
query pin pointed in plain
language the allegations made
against him. He was asked to
respond to the allegations which
he did. Thereafter, he was
notified in writing that formal
disciplinary proceedings were to
be instituted against him. He
submitted a written statement in
explanation or in answer to the
charges preferred against him as
demanded by the notification
letter. Attached to the
notification letter was a copy
of the charge sheet. He
submitted a written statement in
explanation or in answer to the
charges preferred against him as
demanded by the notification
letter. The charges preferred
against him were stated black
and white in the charge sheet.
The notification letter reminded
him of his constitutional right
to act by a lawyer and he was
asked to call witnesses. A time
table was set for the trial to
commence and end. At the trial,
the applicant did not meet a new
and a different charge sheet. He
attended the trial with a lawyer
of his choice. Indeed, his
present lawyer defended him at
the trial. He knew before the
trial, the accusations or
charges he was going to meet.
All and every opportunity was
given to him to defend himself.
This I think is the essence of
fair hearing. On this issue, I
find the speeches of Kpegah
J.S.C. and Sophia Akuffo J.S.C.
in the case of Awuni v.
West African Examination Council
[2003-2004] SCGLR 471
apposite. At page 489 of the
report Kpegah J.S.C. said:
“The phrase to act fairly and
reasonably in my opinion
necessarily imports a duty to
observe the common law maxim of
audi alteram partem and other
principles of natural justice
which is very much part of our
jurisprudence and are implicit
in the constitutional provisions
in Article 23. Because I cannot
contemplate how a person could
be said to have acted fairly and
reasonably if he did not give
either notice or hearing to
another who was entitled to such
notice or hearing before taking
a decision which adversely
affects his rights; neither can
I contemplate a situation where
a person could be said to have
acted fairly and reasonably if
he acted as a judge in his own
cause, or gave a biased and
perverse decision.”
On her part, her Ladyship Sophia
Akuffo had this to say at page
514 of the report:
“Where a body or officer has an
administrative function to
perform, the activity must be
conducted with, and reflect the
qualities of fairness,
reasonableness and legal
compliance. I will not venture
to give a comprehensive
definition of what is fair and
reasonable …. At the very least
however, it includes probity,
objectivity, opportunity to be
heard, legal competence and
absence of bias, caprice or
ill-will. In particular, where
as in this case, the likely
outcome of an administrative
activity is of a penal nature,
no matter how strong the
suspicion of the commission of
the offence, it is imperative
that all affected persons be
given reasonable opportunity to
be heard, if the objective of
article 23 is to be achieved.”
In this case, it is quite
obvious that the respondent took
every pragmatic and necessary
step to ensure that the
applicant was treated with the
utmost fairness. The procedures
adopted by the respondent during
the pre-trial proceedings and at
the trial were article 19 and 23
of the 1992 Constitution
compliant. The allegations of
breach of natural justice and
the commission of fundamental
errors alleged against the trial
panel are a ruse intended to
unjustifiably impugn the
integrity of the proceedings. In
any case, if there were errors
(which is doubtful), the same is
not apparent on the face of the
record. Errors of law or fact
not apparent on the face of the
record are not redressed by
Certiorari. See Republic
v. High Court, Accra; Ex-parte
Industrialization Fund for
Developing Countries and Another
[2003-2004] SCGLR 348.
The crux of the applicant’s case
reasonably gleaned from the
submissions made by his lawyer
seeks to question the authority,
jurisdiction wise, to institute
disciplinary proceedings against
the applicant when indeed and in
fact the respondent organization
has no disciplinary regulations
to regulate and give legitimacy
to its disciplinary proceedings.
It is against this background
that the applicant contends that
he can not be tried under the
Civil Service Law. The applicant
has thus raised a legal point
that he was tried under a law
that did not apply to him. To
him, the whole proceedings are
therefore a nullity and of no
legal effect as the respondent
in purporting to initiate
disciplinary proceedings against
him did so without jurisdiction.
In effect, the applicant is
saying that the Civil Service
Law did not confer any
jurisdiction on respondent to
commence disciplinary
proceedings against him. In the
alternative, it is the case of
the applicant that he should
have been tried under the Police
Service Act by virtue of Section
40 of the Securities and
Intelligence Agencies Act 1996
(Act 526). The section provides:
“40 Protection
of employees
Subject to the Constitution, an
employee of an internal
intelligence agency has in the
performance of functions under
this Act, the same rights and
powers as are conferred by law
on a police officer in the
performance of functions and has
the same protections.”
The additional ground (iv) sums
up counsel for the applicants
submission on this point. Under
the said ground (iv), counsel
for applicant posit that:
“Under a proper interpretation
of Article 526 i.e. the Security
and Intelligence Agencies Act of
1996 (Act 526) Parliament
intended and it is mandatory
that all employees of the BNI
must exercise and enjoy all
powers, rights, benefits and the
protection of that of a police
officer.”
The meaning and the scope of
section 40 of Act 526 admits of
no ambiguity. By section 40 of
Act 526, the rights, powers and
protection conferred on the
police in the performance of
their official functions is to
be a benchmark by which the
rights, powers and protection
conferred on the employees of
respondent employees are to be
measured. The section is thus
intended to ensure equity in the
enjoyment of rights, powers and
protection conferred on the
police service and employees of
respondent organization.
It is the contention of the
applicant that by preferring
charges under the Civil Service
Act against him, the respondent
did not accord him the
protection that section 40 of
Act 526 confers on him.
Admittedly, Section 40 of Act
526 confers enormous benefits on
the employees of respondent
organization. I do not,
therefore, begrudge the
applicant on his reliance on
section 40 of Act 526. If there
is any benefit to reap under
section 40 of Act 526, the
applicant has a legitimate right
to ensure that he benefits from
those rights and protection. For
the purposes of this
application, I shall dwell on
the protection conferred on
employees of respondent
organization by section 40 of
Act 526. I have been trying to
fathom out what the word
protection as used in section 40
of Act 526 entails; and what
readily comes to mind is the
protection conferred on public
officers by Article 191 of the
1992 Constitution. Article 191
of the Constitution provides:
“191
Protection of public officers.
A member of the
public services shall not be
(a)
victimized or discriminated
against for having discharged
his duties faithfully in
accordance with this
Constitution; or
(b)
dismissed or removed form office
or reduced in rank or otherwise
punished without just cause.”
Article 191 of the 1992
Constitution is a constitutional
guaranteed right which ought to
be rigidly complied with by
administrative bodies and the
court will be astute in its
compliance. Article 191(b) of
the Constitution, for me, is the
fountain which gives strength,
validity and legitimacy to
disciplinary proceedings within
the public service and which
affect the tenure of public
officers. It is the ultimate
standard by which disciplinary
proceedings must meet as a
matter of fact and law.
Disciplinary proceedings are
deemed valid if and only if it
is conducted in terms of article
191(b) of the Constitution. It
is plain from the language of
article 191(b) that public
officers cannot be dismissed or
removed from office or reduced
in rank or otherwise punished
without just cause.
The disciplinary proceedings,
the subject of the instant
application must be viewed
within the context of article
191(b). Now, was the applicant
removed from office without just
cause? It has never been the
contention of the applicant that
he was removed from office
without just cause. Indeed, it
has been demonstrated beyond
doubt that, at all material
times, the applicant was given
the opportunity to proffer a
statement in exculpation of the
charges preferred against him.
The respondent patiently
complied with the requirements
of due process right from the
pre-trial proceedings through to
the conclusion of the trial. I
have already dealt at length on
this issue earlier on and I
would not want to repeat myself.
The applicant’s only beef is
that he ought not to have been
tried under the Civil Service
Law. He made this protestation
loudly in paragraph 16 of his
affidavit filed on 30-08-2011.
In the said affidavit he said:
“That as an employee of the
Security and Intelligence
Service, I have been advised by
my counsel that I am subject to
disciplinary proceedings for the
time being under the Police
Service disciplinary proceedings
or that of the Public Services
and not the Civil Service.”
The averment above quoted is
self defeating. Perhaps the
advice was not well given. The
statement sensibly and logically
construed means that
disciplinary proceedings under
any of the institutions forming
part of the Public Services of
Ghana could have been commenced
against the applicant. Now, is
the applicant saying, the Civil
Service is not part of the
Public Service? By the
applicant’s own reasoning, the
respondent did not err in
initiating disciplinary
proceedings against the
applicant under the Civil
Service Law.
The applicant, I think, is
stretching the limits of section
40 of Act 526 beyond unbearable
limits. His contention that he
ought to have been tried under
the Police Service Act is a
mis-statement. Section 40 of Act
526 did not make the applicant a
policeman. The section is
concerned with the protection
among other benefits that ought
to be enjoyed by employees of
respondent in the performance of
their functions. The section
does not say that employees of
respondent organization are
subject to the disciplinary
proceedings of the Police
Service. The protection
conferred on employees of
respondent organization must be
distinguished from the procedure
adopted by the police to instill
internal discipline within its
rank and file. What we need to
emphasise is the protection
conferred on employees of
respondent organization. As I
have observed, the greatest
protection is what is provided
in article 191(b) of the
Constitution. That is to say,
just cause ought to be shown
before an employee is punished.
Section 17 of the Police Service
Act, 1970 Act 350, deals with
misconduct and section 75 of the
Civil Service Act, 1993, PNDCL
327 defines misconduct. The two
statutory provisions give
examples of acts that may amount
to a misconduct and thus justify
the punishment of an employee.
It can thus be seen that section
17 of the Police Service Act and
Sections 75 and 76 of the Civil
Service Act are designed to give
effect and meaning to article
191(b) of the Constitution. On
no account do they trump article
191(b) of the Constitution. The
relationship of section 17 of
the Police Service Act and
sections 75 and 76 of the Civil
Service Act to article 191(b) of
the Constitution is intended to
be one of the servant rather
than a master. Where as in the
instant case, the respondent has
no provision expressly stating
conducts that would constitute
misconduct, it may have to look
within the public service where
express legislation exist for
direction and guidance. But in
whatever manner the procedure is
conducted at the end of the day,
we need to satisfy ourselves
that the proceedings was
conducted in accordance with
article 191(b) of the
Constitution, whether the rules
of natural justice was observed
and whether the trial was fair.
There is abundant evidence on
record to show that the
disciplinary proceedings held
against the applicant were
conducted in accordance with
article 191(b) of the
Constitution. That is to say
that the applicant was removed
from office with just cause; and
that the proceedings was fair.
In this connection, it is
instructive to note that
proceedings before
administrative bodies are not
regulated by rules of procedure
like what obtains in the courts.
The court will, therefore, look
at the substance, that is the
charge, rather than the
procedure, that is the form by
which the proceedings was
commenced. The court can,
therefore, conveniently sever
the substantive charge from the
form, that is the reference made
to section 76(1) (d) of the
Civil Service Act. It is not the
section of the Civil Service Act
that gives legitimacy to the
charge neither did it empower
the respondent to commence
disciplinary proceedings against
its employees. The failure to
follow a particular procedure or
the resort to a wrong procedure
will, therefore, not render the
proceedings void on grounds of
procedural irregularity.
Disciplinary proceedings of
administrative bodies cannot be
bogged down by procedural
technicalities. What the court
will look out for is whether the
rules of natural justice were
observed and whether just cause
was shown before the imposition
of punishment on the offending
public officer. Natural justice
would be observed and just cause
will be shown when the accused
is informed of the offence
alleged against him; and he is
given the chance to defend
himself before an impartial
adjudicator.
In the case of Lagudah
vrs. Ghana Commercial Bank
[2005-2006] SCGLR 338,
the court per Sophia Akuffo J.
S. C. quoting Twumasi J in the
case of Republic v. Ghana
Railway Corporation Ex-parte
Appiah & Anor. [1981]
GLR 753 said:
“ The core idea implicit in the
natural justice principle of
audi alteram partem was simply
that a party ought to have
reasonable notice of the case he
has to meet and ought to be
given the opportunity to make
his statement in explanation of
any question and to answer any
arguments put forward against
it. The principle does not
require that there must be a
formal trial of a specific
charge akin to court proceedings
… In dealing with the principles
of natural justice, one has
always to bear in mind that the
principles of natural justice
are substantive rather than
procedural safeguards.
Therefore, the fact that a
particular formal procedure is
not adopted does not of itself
imply that the principle has not
been applied in an appropriate
case.”
I have dealt with one aspect of
the protection conferred on
employees of respondent
organization by section 40 of
Act 526. Another protection can
be found in section 20(7) of the
Police Service Act, 1970, Act
350. The section provides:
“Where the defendant in a
disciplinary or appeal
proceedings referred to in this
section has exhausted the
available processes provided by
this Act or the Regulations, and
is aggrieved in respect of any
matter relating to the
proceedings, the defendant may
petition the President.”
Section 20(7) of Act 350 is
intended to give people like the
applicant a reprieve. The
section opens to them a window
of hope and prevents them from
throwing their hands into the
air in despair saying that there
is no avenue open to them to
seek redress. The section
envisage a situation, like the
instant one where there is no
channel of appeal, and thereby
fills the vacuum created. It is
implicit in section 20(7) of Act
350 that the absence of a
channel of appeal per se will
not render the proceedings void.
Section 20(7) of Act 350 is a
special remedy which the
applicant must exploit. I have
elsewhere in this judgement held
that the absence of a channel of
appeal does not call for a
quashing order. I am emboldened
by section 20(7) of Act 350 to
re-iterate the point once again
that the remedy of the applicant
does not lie in a certiorari
application.
Apart from taking advantage of
section 20(7) of Act 350; the
applicant’s rights under common
law is not foreclosed. He may
initiate an action by a writ of
summons for wrongful dismissal
if he has evidence to proof that
the decision of the trial panel
is against the weight of
evidence. Nothing precludes a
person who feels that he has
been wrongfully dismissed or
removed from office without just
cause from seeking redress by
way of ordinary writ of summons.
The attack mounted against the
disciplinary board of the BNI is
unwarranted. The trial panel
found the applicant guilty on
two of the counts. They did not
have the mandate to impose a
punishment on him. They could
only recommend a punishment for
the consideration of the
disciplinary board. The
disciplinary board is not a
judicial body but a purely
administrative body mandated to
impose punishment on offending
employees following a service
inquiry. It is not bound by the
recommendations of the trial
panel. The board could confirm,
alter, vary, amend or reduce the
punishment recommended by the
trial panel depending on the
gravity of the offence. In the
case of the applicant, the
disciplinary board took a
serious view of the matter and
imposed a penalty of removal
from office in lieu of the
reduction in rank recommended by
the trial panel. In taking this
decision, the board merely
performed an administrative
duty. It was not therefore
required to hear the applicant
on the matter. It is trite that
certiorari will not lie to quash
a purely administrative
decision.
The applicant is contesting the
claim that his conduct did bring
the name of the respondent into
disrepute. In any case, the
applicant is entitled to his
opinion. Whether the applicant’s
conduct tended to bring the name
of respondent into disrepute is
a question of fact to be
inferred from the facts. Work
ethics demands that he who seeks
to be employed or seeks to be
promoted must possess the
requisite qualification required
to be provided. The
qualification(s) must be genuine
and authentic. The logic of it
is that once the qualification(s)
are found not to be genuine the
employer must loose his job or
position as a matter of course.
In the case of the applicant, he
was able to upgrade himself with
documents fraudulently and
dishonestly procured. My very
first observation is that his
employers were not vigilant and
up to their task. Come to think
of it that the respondent is a
reputable and well respected
intelligence outfit. The
internal security of the country
is entrusted to their care. For
this reason, it is generally
expected that their tentacles
would be spread widely and their
eyes wildly opened to detect the
minutest mischief. It is
regrettable that within its own
outfit they were unable to
detect the dishonest act of the
applicant in good time. This is
one thing that certainly cast
doubt on the integrity and
competence of the outfit. If the
respondent cannot detect the
timber in its own eyes, how can
it detect the speck in the eyes
of others? Objectively speaking,
I will say that the conduct of
the applicant does not only
bring the name of respondent
into disrepute, it also reduces
respondent into a careless and
inept outfit.
It must be borne in mind that
certiorari is a discretionary
remedy which will not issue
where there exist an effective
alternate remedy. In this case,
the options available to the
applicant are either to petition
the President under section
20(7) of the Police Service Act,
Act 350 or to sue for wrongful
dismissal. This is an
application which is destined to
fail. My only duty is to
pronounce its failure which I
hereby do without any relish.
COUNSEL:
1. Mathias Kwasi Yakah for
Applicant.
2. Jasmine Armah (State
Attorney) for the Respondent.
(SGD.) KOFI ESSEL MENSAH
JUSTICE OF THE HIGH COURT.
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