HIGH COURT, SEKONDI
Date: 18 NOVEMBER 1974
CHARLES CRABBE J
CASES REFERRED TO
(1) R. v. Electricity Commissioners;. Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171; 93 L.J.K.B. 390; 130 L.T. 164; 88 J.P. 13; 39 T.L.R. 715; 68 S.J. 188, C.A.
(2) Republic v. Volta Region Chieftaincy Committee; Ex parte Asor II [1972] 1 G.L.R. 273.
(3) Poku v. Frimpong [1972] 1 G.L.R. 230, C.A.
(4) Wilson v. Glossop (1888) 20 Q.B.D. 354; 57 L.J.Q.B. 161; 58 L.T. 707; 52 J.P. 246; 36 W.R. 296; 4 T.L.R. 239, C.A.
(5) Robinson & Co. v. Continental Insurance Co. of Mannheim [1915] 1. K.B. 155; 84 L.J.K.B. 238; 112 L.T. 125; 31 T.L.R. 20; 59 S.J. 7; 12 Asp.M.L.C. 574.
(6) R. v. Kent Police Authority; Ex parte Godden [1971] 2 Q.B.662; [1971] 3 W.L.R. 416; 69 L.G.R. 533; sub nom, Re Godden [1971] 3 All E.R. 20. C.A.
[p.129] of [1975] 1 GLR 127
NATURE OF PROCEEDINGS
APPLICATION for an order of prohibition to restrain the Inspector- General of Police from proceeding further with disciplinary proceedings against the applicant. The facts are sufficiently set out in the ruling.
COUNSEL
W. A. H. Amarteifio (with him J. A. Dawson) for the applicant.
T. Ahlijah, Senior State Attorney, for the respondent.
JUDGMENT OF CHARLES CRABBE J.
The applicant is seeking an order of prohibition to restrain the Inspector-General of Police, acting through the Superintendent of Police in charge of the Tarkwa Division, from proceeding further with disciplinary proceedings against the applicant, commenced by a formal letter dated 12 March 1974, and for such further order or orders as this court may deem fit to make.
The grounds of the application are that:
| “(a) | The retrial of the applicant is vexatious, amounts to persecution and is wholly against natural justice. |
| (b) | The tribunal has no jurisdiction to retry the applicant since the matter is res judicata, vis-a-vis the |
| High Court ruling dated 12 April 1973. | |
| (c) | The present proceedings are misconceived since the proper remedy was to have appealed against the |
| High Court decision dated 12 April 1973. | |
| (d) | The inquiry constitutes a contempt of the High Court.” |
The facts of the matter, as set out in the supporting affidavit, are that on 21 September 1972, disciplinary proceedings were instituted against the applicant. The charges were that he had failed:
“to perform in a proper manner any duty imposed upon [him] contrary to section 17 (k) of the Police Service Act, 1970 (Act 350), [and that he divulged] such vital information to a person not authorised to receive it, contrary to section 17 (j) of the Police Service Act, 1970 (Act 350).”
As a result of the disciplinary proceedings the Inspector-General of Police removed him from the Police Service. He then filed an application for a writ of certiorari against the Inspector-General at the High Court, Sekondi, which court quashed the whole of the disciplinary proceedings on 12 April 1973, with costs assessed at 0100.00: see [1973] 2 G.L.R. 113.
After some delay, and upon pressure from his counsel, he was re- instated on 25 May 1973. Upon his reinstatement, he was served with a letter for the holding of another disciplinary proceeding. The charge was that he had instituted a private action against the Inspector-General of Police without obtaining his permission. When he replied to the charge, the charge against him was withdrawn.
By a letter dated 12 March 1974, the Inspector-General of Police has caused further proceedings to be initiated against him. He contended in his affidavit:
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“(15) That the subject-matter of the inquiry is the same as in the previous proceedings quashed by the High Court, Sekondi, on 12 April 1973.
(16) That the intended retrial is vexatious and places me in jeopardy.
(17) That in connection with this same subject-matter I was arrested by the Army and spent 39 days in military custody after which I was released because there was no case against me.
(18) Furthermore I have also suffered removal from the Police Service from 12 December 1972 until my reinstatement on 25 May 1973.
(19) That the costs of ¢100.00 awarded me by the High Court, Sekondi, have not been paid.
(20) That I have not demanded same.
(21) That in spite of all this the Inspector-General of Police wants to retry me over the same matter.
(22) That it is obvious that the Inspector-General of Police is bent on dismissing me from the Police Service at all costs.
(23) That I believe that the retrial amounts to a contempt of the High Court, Sekondi.
(24) That I verily believe that the tribunal has no jurisdiction to retry me since the matter is res judicata…”
In arguing the first ground and after reciting the facts, counsel for the applicant contended that the latest set of charges against the applicant was the same as the first set of charges against the applicant which resulted in the decision of the Inspector-General of Police being quashed on an order for the issue of certiorari. The history of this case was that the applicant was originally arrested by the military authorities and was in military custody for 39 days. The military authorities released him when they found that there was nothing against him.
“Taken in its entirety,” stated counsel, “these matters amount to persecution and it is against the principles of natural justice.” The applicant was entitled to the payment of two-thirds of his salary. That had not been paid to him. Nor had the costs awarded against the Inspector- General of Police been paid. Referring to the provisions of sub-regulation (4) of regulation 9 of the Police Service (Disciplinary Proceedings) Regulations, 1971 (L.I. 688), counsel felt that the applicant was being persecuted. He maintained that the previous disciplinary proceedings had been declared a nullity and added:
“Where for any technical reasons a trial is declared a nullity and, therefore, the findings declared null and void, the rights attendant upon the applicant are restored and that act amounts to a declaration that the applicant is not guilty. If that is so then looking at exhibit E, [the notice of service inquiry], the applicant cannot be tried again.”
As regards the second ground he contended that the matter had been adjudicated upon. Therefore the Police Council had no jurisdiction to go against the applicant. As such the intended inquiry was in excess of the jurisdiction conferred on the Police Council acting through its regional
[p.131] of [1975] 1 GLR 127
bodies: R v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171, C.A. He submitted that the whole case was based upon the arguments in respect of the first two grounds and he would not, therefore, argue the other grounds.
Counsel for the respondent maintained that this court was not a court of morals and that the moral aspect of the matter should not be the determining factor. He then referred to paragraph 128, p. 137 of Halsbury’s Laws of England (3rd ed.). He also relied on the Republic v. Volta Region Chieftaincy Committee; Ex parte Asor II [1972] 1 G.L.R. 273. He argued that in so far as the disciplinary committee was acting under statutory powers it was not acting beyond its jurisdiction nor could it be said that it was acting against the rules of natural justice. Nor could it be said that the applicant was being put in double jeopardy being tried twice for the same offence.
In view of the legal position that the first trial was quashed on certiorari the effect of which was that the first trial was a nullity, there was no trial and, therefore, we were back to square one and we start all over again since certiorari had not been pleaded as res judicata. He concluded by saying that Poku v. Frimpong [1972] 1 G.L.R. 230, C.A. would apply but certiorari was not an appeal and therefore, prohibition did not lie.
The letter dated 21 September 1972, which sparked off the first proceedings is as follows:
“INSPECTOR GRADE II K. A. WOOD
Notice of Service Inquiry
I have to inform you that I have been nominated by the Sekondi Divisional Disciplinary Board to hold service inquiry into the under-mentioned charges preferred against you.
Statement of Offence:
(1) Failing to perform in a proper manner any duty imposed on you contrary to section 17 (k) of the Police Service Act, 1970 (Act 350).
(2) Divulging such vital information to a person not authorised to receive it, contrary to section 17 (j) of the Police Service Act, 1970 (Act 350).
Particulars of Offence:
(1) For that you, between the months of March and April 1972, at Sekondi-Takoradi then being the Inspector in charge of Motor Traffic Unit, Takoradi, having had an information of an alleged plot to stage a coup d’etat in Ghana between May and July 1972 did fail to inform your immediate superior Police Officer M.T.U. Sekondi – Takoradi for the Divisional Regional Commander in the Western Region – Ghana.
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(2) For that you, during the same period and place aforesaid, did divulge such vital information about alleged plot to stage a coup d’etat in Ghana to one Yaw Agyei Bediako, a person not authorised to receive it.
2. You are hereby informed that you may within 3 (three) days of the receipt of this letter, if you wish, to submit a written statement of exculpation in a statement giving extenuating circumstances in connection with the offences with which you are charged and showing reasons why there should be any leniency or why you should not have been charged at all.
3. Should you decide to take advantage of this offer, your statement in exculpation should reach this office within three days from the date on which this service inquiry notice is served on you.”
When the applicant was reinstated he was served with the following letter dated 5 June 1973:
“Notice of Service Inquiry Proceedings-under regulation 4 (3) (c) of L.I. 688 of 1971 made under section 20
(3) of Police Service Act, 1970 (Act 350) Inspector Grade II K. A. Wood
I have to inform you that I have been authorised by the Inspector-General of Police under section 19 (3) of Act 350 to hold service inquiry on the following charge relative to your conduct:- Offence: Misconduct, contrary to section 17 (k) of the Police Service Act, 1970 (Act 350).
Particulars of Offence:
For that you Inspector Grade II, K. A. Wood, of M.T.U. Takoradi did on or about 21 March 1973, file a writ of certiorari at a Sekondi High Court, urging the said court to set aside proceedings against you by Mr. Isaac Kwakye, Superintendent of Police, as a result of which a sentence of ‘Removal from the Service with full retiring benefits’ was imposed on you, without obtaining the permission of the Inspector-General of Police, as laid down in Service Order No. 57 (2).
(2) As laid down in regulation 7 of L.I. 688 of 1971 made under section 20 (3) of Act 350 of 1970, you are requested to explain why you feel you should not be called upon to account for your conduct in respect of the above charge. Your written statement in explanation should reach me three days after the service of this notice.
(3) If after three days of service 1 do not receive your letter, I will take it to mean that you have no explanation to give and I shall therefore decide to hold the inquiry.”
The applicant then replied in the following terms, by his letter dated 21 June 1973:
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“Dear Sir,
Re: Notice of Service Inquiry Proceedings etc.
I acknowledge receipt of your letter dated 5 June 1973 with reference number TKW/DIV.HQ.239/Vol.I/SF.1/7.
I wish to point out, Sir, that at the time I instituted the court action I had been removed from the Police Service.
Moreover in spite of the fact that I had lodged an appeal to the Police Council my salary was then being withheld even though under the circumstances I ought to have been granted two-thirds thereof.
You will also note, Sir, that there was no indication from the Police Council as to when my appeal was likely to be heard. Moreover, I had only six months within which to file a writ of certiorari at the High Court and I was running out of time.
I wish to point out finally that this matter can hardly be said to be a private affair within the meaning of Standing Order 57 (2).
Under the circumstances I am of the opinion that the action I took was reasonable.
Yours obediently,
(Sgd.) K. A. WOOD INSPECTOR GD. II.”
It was after the receipt of the letter of 21 June 1973, from the applicant that he was written to by the following letter dated 21 June 1973 which has led to the present application:
“Notice of Service Inquiry
I write to inform you that I have been nominated by the Inspector-General of Police to hold service inquiry into your conduct on the following charges:
Statement of Offence(s)
i. Misconduct-contrary to section 17 (k) of the Police Service Act, 1970 (Act 350).
ii. Misconduct-contrary to 17 (j) of the Police Service Act, 1970 (Act 350).
Particulars of Offence
i. For that you, between the months of March and April 1972, at Sekondi-Takoradi then being the
Inspector in charge of Motor Traffic Unit, Takoradi, having had an information of an alleged plot to stage a coup d’etat in Ghana between May and July 1972, did fail to inform your immediate superior Police Officer/M.T.U. Sekondi-Takoradi
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or the Divisional/Regional Commander in the Western Region, Ghana.
ii. For that you, during the same period and place aforesaid, did divulge such vital information about alleged plot to stage a coup d’etat in Ghana to one Yaw Agyei Bediako, a person not authorised to receive it.
(2) In accordance with regulation 6 (1) (b) of the Police Service Regulations, 1971, you are requested to submit within three days from the date of the receipt of this notice, a written statement of exculpation in respect of the charges preferred against you. If you fail to do so within the given days, I shall commence the inquiry at the office of the Assistant Superintendent/M.T.U. Sekondi on a date to be fixed later. Exculpation in this respect means:-Exonerating yourself from blame.’
(3) Should you wish to call witnesses in your defence, you are at liberty to do so.”
In his ruling, which quashed the first disciplinary proceedings, Edusei J. stated as reported in [1973] 2 G.L.R. 113 at pp. 116-117 as follows:
“There is no dispute that having regard to the Police Service Act, 1970, and the Police Service (Disciplinary Proceedings) Regulations, 1971, the only person who could appoint a senior police officer to perform this judicial or quasi-judicial function is the Inspector-General of Police and not a Regional Police Board. It is axiomatic that Mr. Kwakye, the senior police officer, who conducted the inquiry was not in the circumstances clothed with jurisdiction. Whatever he did was a nullity. Mr. Kwakye, the police inquiring officer, may permit me to say that he is a usurper, or at least, in the position of a usurper. I do not mean this unkindly nor do I attribute to him any evil motive or intention because I know that he acted in good faith on the authority of the Western Regional Disciplinary Board; be that as it may, he assumed a mantle which was not his, but that of another. This is not a case of a tribunal which had jurisdiction and exercised it; it is the case of a senior police officer acting as a tribunal when he has no right to do so in the circumstances. The decision of the Inspector-General of Police based on the findings of Mr. Kwakye must also fall to the ground, for a decision cannot be founded on something which in itself is a nullity. The purported decision of the Inspector-General of Police may seemingly appear to mean that he has ratified the proceedings of Mr. Kwakye but this cannot be for the effect of ratification is to make it equal to a prior command; but first as a prior command in the shape of a delegation by the Western Regional Disciplinary Board would be useless, so also is a ratification.
In the result the application succeeds and I order that the decision of the Inspector-General of Police given on 8 December 1972 be
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brought up into this court to be quashed. Costs of this application are assessed at 0100.00 against the Ghana Police Service.”
What this ruling amounts to is that the disciplinary proceedings to which the ruling relates have no legal effect. The disciplinary proceedings constituted an action which is void ab initio. The rights of the applicant cannot be affected by the proceedings. Hence his reinstatement, however belatedly. Since the court declared the disciplinary proceedings a nullity there is, in law, therefore, no disciplinary proceedings upon which any action could be taken. Questions of res judicata cannot in those circumstances be raised, as, in law, there was no trial upon which to found a plea of res judicata.
The argument of counsel for the applicant that upon the declaration of the first disciplinary proceedings as being null and void the applicant was put in the position of an accused found not guilty on an appeal is interesting and merits serious consideration. When an appellate court finds that an accused is not guilty the accused is put in a position in which he can subsequently plead autrefois acquit. The acquittal becomes a bar to a further prosecution for the same offence. It is a manifestation of an estoppel per rem judicatam. As Blackstone put it in his Commentaries (1769) Book IV, p. 329, “no man is to be brought into jeopardy of his life more than once for the same offence.”
This is based upon the legal maxim nemo debet bis vexari pro una eteadem causa. As was said in Broom’s Legal Maxims (9th ed.), pp. 225-226:
“If an action be brought, and the merits of the question be discussed between the parties, and a final judgment obtained by either, the parties are concluded, and cannot canvass the same question again in another action, although perhaps, some objection or argument might have been urged upon the first trial, which would have led to a different judgment. In such a case, the matter in dispute having passed in rem judicatam, the former judgment, while it stands, is conclusive between the parties, if either attempts, by commencing another action, to re-open that matter; and for this rule two reasons are always assigned: the one, public policy, for interest rei publicae ut sit finis litium; the other, the hardship on the individual that he should be twice vexed for the same cause.”
To succeed, therefore, where such a plea in bar to a prosecution is alleged, it is essential that it be established that the cause is the same. But we do know that when an appellate court deals with such matters, it also has powers to declare that there should be a retrial. In such cases the plea of autrefois acquit is no defence. One has, therefore, to look at the particular facts of the case and act accordingly.
In the present case the High Court of Justice declared the first disciplinary proceedings a nullity. The ground of the decision being that the officer who conducted the proceedings was a usurper. Would not this ruling amount to a decision that the Inspector-General of Police could proceed against the applicant on the ground that the disciplinary
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proceedings have been declared null and void – there had been, in law, no such proceedings? I think he could. In my view the ruling does not rule out the possibility of the Inspector-General of Police proceeding by the proper procedure and acting in strict accordance with the provisions of the Police Service Act, 1970 (Act 350), and regulations made thereunder. In my view the applicant cannot then talk in terms of vexatious proceedings and raise arguments based upon double jeopardy.
The Police Service Act, 1970 (Act 350), in paras. (j) and (k) of section 17 states that it shall be a misconduct for a police officer,
“(j) to divulge any confidential information to a person not authorised to receive it; [and]
(k) to do any other act without reasonable excuse which amounts to a failure to perform in a proper manner any duty imposed on him as such, or which contravenes any enactment relating to the Police Service, or which is otherwise prejudicial to the efficient conduct of the Police Service or tends to bring the Police Service into disrepute.”
As regards paragraph (j) it seems to me that there is a very, very debatable question having regard to the particulars of offence specified in the letter of 21 September 1972, whether, indeed, an offence has been committed by the applicant. The important words in this paragraph are “confidential information.” These words would, in my view, relate to information of a confidential nature which comes to the knowledge of a police officer as regards the Police Service as a whole and not some other information which may come to his knowledge, not necessarily in the performance of his functions as a police officer. I am trying here to equate confidential information with information which would ground a prosecution under the State Secrets Act, 1962 (Act 101), and, in that sense, confidential would be confidential of a Police Service nature.
But as regards paragraph (k) I have not the slightest doubt that it was incumbent upon the applicant when he had an information of an alleged plot to stage a coup d’etat to inform the authorities of what was proposed. His action in not informing the authorities, is prejudicial to the efficient conduct of the Police Service and would bring the Police Service into disrepute. It was an act which amounted to a contravention of an enactment relating to the Police Service, in which I would include any enactment relating to the security of the State.
Now sub-regulation (4) of regulation 9 of the Police Service (Disciplinary Proceedings) Regulations, 1971 (L.I. 688), states as follows: “Where he [an officer] has been either found guilty or acquitted of a charge of misconduct arising out of particular facts, he shall not again be charged for misconduct arising out of substantially the same facts.”
The various letters I have reproduced above, that is, the letters of 21 September 1972, and of 12 March 1974, disclose, in my view, facts which are substantially the same. Indeed, the wording is very, very similar. And so the question is whether it can be said that upon the first disciplinary proceedings being quashed the applicant can be said to have been found
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not guilty. This, I have already dealt with. But then what about the spirit of this sub-regulation (4) of this regulation 9?
I agree entirely with counsel for the respondent that once the Inspector-General of Police was acting within the ambit of his statutory powers he could not be accused of acting in excess of jurisdiction. And, especially, where the High Court of Justice had clearly stated that it acted, in quashing the first disciplinary proceedings, because the law had not been complied with. And before me it has not been shown satisfactorily that the Inspector-General of Police, in setting up further disciplinary proceedings, is not acting within the powers conferred upon him by the provisions of section 20 of the Police Service Act, 1970 (Act 350), and regulations 9, 10, 11, and 12 of the Police Service (Disciplinary Proceedings)
Regulations, 1971 (L.I. 688).
Nor do I consider that the Inspector-General of Police has acted in contempt of the High Court of Justice. He has not been disobedient to the order of the court. And failure to pay costs has never, as far as I am aware, been considered as contempt of court. The very act of commencing another disciplinary proceeding means that the Inspector-General of Police has bowed to the will of the court. And I have already indicated that the ruling of the court did not preclude the Inspector-General of Police from exercising any statutory powers conferred upon him in the matter of taking disciplinary proceedings against police officers.
Equally, I am not enamoured by any arguments based on res judicata. The ruling of the High Court of Justice declared the first disciplinary proceedings a nullity. That means that there does not now exist, in law, any disciplinary proceedings in which any questions of law or fact have been determined which can estop the Inspector-General of Police and even the applicant himself from any further litigation, as it were, on the questions already determined.
The ruling is what I may be tempted to call a destructive decision, in the sense that it totally destroys the disciplinary proceedings to which it relates, and did not decide any questions of right or liability which could be dealt with by the Inspector-General of Police or the applicant as if it had never been determined at all. The mind of the court was not brought to bear upon the specific issue or issues for determination by the disciplinary proceedings. It dealt with the issue of the capacity and authority of the person who conducted the disciplinary proceedings. There is, therefore, nothing which can operate as res judicata.
But the history of this case shows that the applicant was in military custody for 39 days “after which [he] was released because there was no case against [him].” This has not been challenged. When the applicant was reinstated he was put in agony by the letter of 5 June 1973, subjecting him to a charge of misconduct contrary to the provisions of paragraph (k) of section 17 of the Police Service Act, 1970. His reply, dated 21 June 1973, shows that had those responsible for that letter of 5 June 1973, given serious consideration to the matter they would not have written
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that letter. The applicant clearly showed a better appreciation and understanding of the Police Service Act, 1970, than his superior officers who were responsible for the letter of 5 June 1973.
He indicated in his reply that the salary to which he was entitled had not been paid to him. This has not been challenged. And before me this allegation has not been denied. If his immediate superior officers were so eager to enforce the law why have they not been so eager to give the “devil” what is due to him? Yet about nine months later he is being called upon to face another disciplinary proceedings. Is it fair? Is it just?
I am in fundamental agreement with counsel for the respondent when he says that this is not a court of morals. But then, this is the High Court of Justice, engaged in the administration of justice. True it is, that man’s notions of justice change from time to time. Our sense of justice is influenced by the law. Yet we cannot deny the impact of morals on law. Our laws change with changes in our moral outlook. Victorian puritanism is far removed from today’s permissiveness. It is a rational ethic that teaches us to restrain arbitrary power. It is a moral concept which holds arbitrary power in check and seeks to secure the well-being of each of us in the fields of liberty and freedom. The reasonable being of the common law is the product of a moral ideal-just, honest and upright.
Is it fair play to hold disciplinary proceedings against an officer-an officer engaged in the enforcement of law and order, and, therefore, required to bring to bear in the discharge of his duties reasonableness, fairness and firmness-and when the proceedings are declared a nullity, hesitate to, or even reluctantly, acknowledge his right to reinstatement? And when he is reinstated, subject him to the agony of a “service inquiry” for doing what, in law, he is not precluded from doing? And when it is shown that he is correct in enforcing in a legal manner his legal rights, subject him again to another inquiry? Is it fair? Is it just?
This is the reason why I have sought to reproduce above in full the correspondence as available to the court and not challenged by the respondent. “How’s that?” Our society cannot develop very much if we do not appreciate certain values of right and wrong, of fairness and fair play, of learning that enough is enough and that it is just not right, not fair, to torment a fellow human being as if he were a hunted animal. Why should the applicant be driven against the wall?
The law reports are replete with cases where judges have acted to uphold a party’s stand in an action because to do otherwise would be “morally and socially wrong”: Wilson v. Glossop (1888) 20 Q.B.D. 354, C.A. and Robinson & Co. v. Continental Insurance Co. of Mannheim [1915] 1 K.B. 155. The letters referred to, and the conduct behind them, taken as a whole do amount, in my view, to persecution. They reveal that somewhere down the line somebody wants to “get at” the applicant at all costs; and seeks to do this under the umbrella of the Act and the regulations made thereunder. If the military authorities, under a military government, could take into custody a police officer and detain him for 39 days on a question involving his failure to inform his immediate superior officers of an alleged plot to stage a coup d’etat, and then release
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him because there was no case against him, then, I submit, it is going a bit too far for his own superiors to subject him to the persecution which the correspondence referred to reveals.
In R. v. Kent Police Authority; Ex parte Godden [1971] 2 Q.B. 622, C.A. the applicant a police officer was transferred to administrative duties in 1969, according to the headnote. He made accusations of unjust treatment against his superiors. A chief constable held an inquiry and reported in May 1970, that there was no evidence of malpractice. The applicant was told the result of the inquiry, but was not shown the report.
On 4 July 1970, his desk was searched by a senior officer. Erotic documents, including a draft letter said to be in his handwriting, were removed. He denied knowledge of the documents. It was arranged for him to be seen by the chief medical officer of the force who was supplied with the copy of the report of May 1970, and the documents. The medical officer saw the applicant on 23 July 1970, reported that after reading the reports he formed the opinion that the applicant was “suffering from a mental disorder of paranoid type.” On July 1970, he certified that the applicant was unfit for police duty on the same ground. The applicant was put on sick leave.
He saw his own doctor who sent him to a consultant psychiatrist. The consultant psychiatrist reported on 18 August 1970 that the applicant was “psychiatrically completely normal” and on 17 May 1971, that in his opinion he was “normal psychiatrically and in good mental and physical health.” The police would not allow the consultant psychiatrist to see the report of May 1970. The police authority took steps compulsorily to retire the applicant. On 22 January 1971, they notified the applicant that they had selected the same chief medical officer as their duly qualified practitioner to determine whether the applicant was permanently disabled under regulation 70 (2) of the Police Pension Regulations, 1971.
The applicant sought orders of prohibition and mandamus. The Divisional Court dismissed the application. The applicant appealed. The appeal was allowed. It was held, amongst other things, that an order of prohibition should go to the medical officer who first examined him, prohibiting him from determining the questions referred to him, because he had already in his report on the applicant in July 1970, formed an opinion adverse to the applicant and had thus committed himself to a view in advance of an inquiry under the provisions of sub-regulation (2) of regulation 70. He could not, therefore, bring, or in any event appear to the applicant to bring, an impartial judgment to bear on the questions referred to him; and accordingly that doctor was disqualified from taking on the matter.
The circumstances of the instant case are quite obvious that the Inspector-General of Police, acting through his subordinate officers in this matter, has already taken a decision in this matter and has acted against the applicant in such a manner that I am compelled to come to the conclusion that, having already in the first disciplinary proceedings and subsequently formed an opinion adverse to the applicant he cannot bring, and could not appear to bring, an impartial judgment to bear on
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the questions involved on the proposed disciplinary proceedings,- it is just and proper, on grounds of natural justice, that an order of prohibition should go against the Inspector-General of Police including those through whom he has been acting so that he and they are relieved of a most invidious task of having to subject a fellow police officer to the persecution revealed by the correspondence I have quoted above. And I order accordingly.
I make no order as to costs.
DECISION
Application granted.
S. E. K.
