HIGH COURT, ACCRA
DATE: 20 JULY 1967
BEFORE: EDUSEI 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; 21
L.G.R. 719, C.A.
(2) R. v. Manchester Justices [1899] 1 Q.B. 571; 68 L.J.Q.B. 358; 80 L.T. 531; 63 J.P. 360; 47 W.R.
410; 15 T.L.R. 201; 43 S.J. 278.
(3) Spackman v. Plumstead District Board of Works (1885) 10 App.Cas. 229; 54 L.J.M.C. 81; 53 L.T.
157; 49 J.P. 420; 33 W.R. 661; 1 T.L.R. 313, H.L.
(4) R. v. Cambridge University (1723) 1 Stra. 557; 8 Mod. Rep. 148; 93 E.R. 698.
(5) Wood v. Woad (1874) L.R. 9 Exch. 190; 43 L.J. Ex. 153; 30 L.T. 815; 22 W.R. 709.
(6) Ali (Nakkuda) v. Jayaratne [1951] A.C. 66; 66 T.L.R. (Pt.2) 214; sub nom. Ali v. Jayaratne 94 S.J.
516, P.C.
[p.538] of [1967] GLR 536
(7) Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66; 127 J.P. 295; 107
S.J. 313; 61 L.G.R. 369, H.L.; reversing [1963] 1 Q.B. 539; [1962]2 W.L.R. 716; [1962] 1 All E.R.
834; 126 J.P. 196; 106 S.J. 111; 60 L.G.R. 229, C.A.
(8) Capel v. Child (1832) 2 C. & J. 558; 149 E.R. 235.(9) Kanda v. Government of the Federation of Malaya [1962] A.C. 322; [1962] 2 W.L.R. 1153; 106
S.J. 305, P.C.
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari to quash the decision of a commission of inquiry suspending the
applicant. The facts are fully set out in the ruling.
COUNSEL
Ate Puplampu for the applicant.
S.M. Boison, Chief State Attorney, for the respondent.
JUDGMENT OF EDUSEI J.
On 18 January 1967 the National Liberation Council in the exercise of the powers conferred on it by section 1 of the Commissions of Enquiry Act, 1964 (Act 250), appointed by an executive instrument, a commission of inquiry to inquire into the management and other matters relating to the State Fishing Corporation. The terms of reference of the commission are elaborately set out in paragraph 3 of the Commission of Enquiry (State Fishing Corporation) Instrument, 1967 (E.I. 6).
The respondent in the instant application is the chairman of the commission of inquiry, and the applicant is the distribution marketing manager of the State Fishing Corporation.
The commission entered upon its duty as set out in its terms of reference and its sittings so far covered the period from 10 February 1967 to 28 June 1967. On 26 June 1967 the chairman of the Commission of Enquiry (State Fishing Corporation) purported to suspend Mr. V.O. Bannerman, the distribution marketing manager of the State Fishing Corporation. The letter of the purported suspension emanated from the office of the Commission of Enquiry (State Fishing Corporation) Accra and it was signed by Mr. S. A. Wiredu, the chairman of the commission of inquiry. The letter, which is exhibit E, is as follows:
“Our Ref. No.SFCC/CH/PERS/14.
OFFICE OF THE COMMISSION OF ENQUIRY, (STATE FISHING CORPORATION) P. O. BOX M.42 ACCRA.
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Dear Sir,
SUSPENSION
With immediate effect you are being relieved of your duties and responsibilities as distribution marketing manager in the State Fishing Corporation.
(2) You are to hand over immediately to your most senior subordinate and advise the chief accountantband the production manager.
Yours faithfully,
(Sgd.) S. A. WIREDU
(Chairman).
Mr. V.O. Bannerman,Distribution Marketing Manager, State Fishing Corporation, TEMA.” Copies of this letter were sent to the Secretary of the National Liberation Council and others.bThe receipt of exhibit B by the applicant gave rise to the initiation of the instant proceedings for writs of (a) certiorari to quash the decision as contained in exhibit B, and of (b) prohibition to prevent the chairman or the commission from suspending, dismissing, interdicting or in any such manner interfering with the said V.O. Bannerman in the performance of his duties as distribution marketing manager of the State Fishing Corporation. The applicant sought these two reliefs on the following grounds:
“(1) E.I. 6 of 1967 under which the Commission of Enquiry (State Fishing Corporation) was appointed confers no jurisdiction upon the commission of inquiry or the chairman to suspend, dismiss, interdict or otherwise interfere with the service contract of the applicant.
(2) That the said order contained in the letter dated 26 June 1967 being a ‘speaking order’ is bad in law in that the commission of inquiry or the chairman of the said commission can in no way whatsoever be regarded as the employer of the applicant for the purpose of enforcing any terms of service betweenbthe corporation and the applicant.
(3) Breach of the rules of natural justice in that the commission of inquiry did not summon the applicant to appear before it to justify his continued employment by the corporation.” [p.540] of [1967] GLR 536
Mr. S. M. Boison, chief state attorney and counsel for the respondent, quite frankly and honestly conceded the three grounds just enumerated as the basis for the reliefs sought, except that he did not agree to the letter exhibit B being referred to as a speaking order on the ground that it did not contain any reason for the suspension. His contention in this regard appears to be well-founded, for in The Dictionary of English Law by Earl Jowitt and Clifford Walsh appears the following definition of a speaking order at Vol. 2, p.1657, “an order containing a statement of what has led to the decision of the court . . . (R. v. Northumberland Compensation Appeal Tribunal [1952] 1 K.B. 338).” It is to be observed, however, that “court” in these circumstances is not to be construed as court stricto sensu, i.e. as a court of justice. “Court” in so far as reviews by means of the prerogative writs are concerned includes any person or body of persons to whom has been entrusted a “judicial” or “quasi-judicial” power of imposing obligations upon others. Thus Atkin L.J. expressed this in very eloquent language when he said: “Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.” See R. v. Electricity Commissioners [1924] 1 K.B. 171 at p. 205, C.A.
It is not necessary that it should be a court; an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of, and are not in accordance with the practice of a court of law: see Halsbury’s Law of England (3rd ed.), Vol. 11, p.55, para. 114. Mr. Boison has argued vigorously in an attempt to show that exhibit B was not the result of anything that happened at any of the sittings of the Commission of Enquiry into the State Fishing Corporation. The burden of his argument, which no doubt is ingenious, rests on the hypothesis that exhibit B has no connection with exhibit 1, the proceedings of the said commission of inquiry covering the period between10 February 1967 and 28 June 1967. Counsel further contended that exhibit B which contained the decision to suspend the applicant was outside the ambit of the judicial duty of the commission or its chairman and the recipient would be justified in directing it to the waste-paper basket; in a sense counsel’s contention is that the letter, exhibit B, is meaningless, valueless and of no effect whatsoever and therefore the applicant need not take any notice of it at all. At its worst what the commission or its chairman
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did was something of an administrative nature and a writ of certiorari would not lie. This is another leg of the argument of counsel for the respondent.
With this proposition I cannot be in agreement. A body may be under a duty however to act judicially (and subject to the controlling power of these prerogative writs) although there is no form of lis inter partes before it; it is enough that it should have to determine a question solely on the facts of the particular case, solely on the evidence before it apart from question of policy. Thus justices of the peace when acting in the capacity of licensing justices do not constitute a court in the ordinary sense and there is no lis before them; their acts are, nevertheless, judicial acts and the orders (or writs) of prohibition and certiorari will lie in regard to them: see R. v. Manchester Justices [1899] 1 Q. B. 571.
There is no doubt that the Commission of Enquiry (State Fishing Corporation) whose chairman is the respondent has been exercising judicial functions and on 7 April 1967, the tenth day of sitting, an allegation of a very serious nature was made against the applicant by a witness in the person of Samuel Kingsley Moses who held the office of assistant marketing officer with the State Fishing Corporation. His allegation was that between October 1964 and January 1965, 1,100 cartons of fish were stolen from the cold store by Mr. Quaye and Mr. V.O. Bannerman the applicant herein. It is true, however, that no reason for the applicant’s suspension was expressly stated in exhibit B, but I am at a loss to comprehend the nature of any administrative duties of the commission or its chairman other than those enumerated in section 6 of the Commission of Enquiry Act, 1964 (Act 250). These deal with the enforcement of attendance of witnesses and of production of documents and with the taking of evidence on commission or by request. I fail to see how the chairman, in writing exhibit B, could be said to be acting administratively when his administrative functions are clearly and explicitly set out in section 6 of the Commission of Enquiry Act, 1964.
There can be no doubt in my mind that the writing of exhibit B was actuated by the revelation at the commission of inquiry on 7 April 1967 which charges the applicant and one Quaye with the larceny of some 1,100 cartons of fish; there were other unwholesome or deprecatory allegations made against the applicant by Moses on 10 April 1967. I cannot find any reason for the act of the chairman of the Commission of Enquiry (State Fishing Corporation) in suspending the applicant other than the cumulative effect of those allegations laid at his door at the commission of enquiry. In any case the chairman in deciding to suspend the applicant must have
[p.542] of [1967] GLR 536
been in possession of certain facts which rendered his suspension desirable in his opinion in the circumstances. If this was so it was imperative for the commission or its chairman to adhere to the very elementary principle of affording the applicant the opportunity to defend himself before condemning him. If even the chairman was acting administratively in suspending the applicant, it was incumbent upon him to adhere to the content of natural justice as ably expounded by Lord Selborne in Spackman v. Plumstead District Board of Works (1885) 10 App.Cas 229 at p. 240, H.L.:
“No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the lawwill imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.” This principle of natural justice is usually referred to as the audi alteram partes rule, and, “even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldst not eat?” The statement was made in R. v. University of Cambridge (1723) 1 Stra.557 at p. 567 when the courts came to the aid of Dr. Bentley and granted a peremptory mandamus to restore him to his degrees.
Though the court was critical of Dr. Bentley’s behaviour, they considered that even if he had been guilty of a contempt to the Vice-Chancellor’s Court, that court had no power to deprive him of his degrees, but they held that in any event he could not be deprived without notice.
Again in Wood v. Woad (1874) L.R. 9 Exch. 190 at p. 196, Kelly C.B. in speaking of the rule expressed in the maxim audi alteram partes said, “This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals.” The applicant herein by his suspension will be deprived of, at least, part of his emoluments, which deprivation is in the nature of a penalty and for such punishment to be meted against him without a hearing of his side of the story militates against even good conscience.
Such a suspension is against justice and right. [p.543] of [1967] GLR 536
The consequence, in my view, is that there was an abnegation of the judicial duties involved in the function of the commission of inquiry or its chairman with the result that their decision must be regarded as of no effect and invalid. It is admitted, however, that English courts cast some doubt on the scope of natural justice and in the case of Nakkuda Ali v. Jayaratne [1951] A.C. 66 the revocation by a government official of a textile-dealer’s licence was held by the Judicial Committee of the Privy Council not to be subject to the duty to give a prior hearing to the dealer. This narrowing of the scope of natural justice was arrested by the House of Lords in Ridge v. Baldwin [1964] A.C. 40 where the Court of Appeal had held in (as stated in the headnote to Ridge v. Baldwin [1962] 1 All E.R. 834 at p.835) that the watch committee of a local authority were under no duty in natural justice to grant the chief constable a hearing before the committee exercised its power to dismiss any constable whom they think negligent in the exercise of his duty or otherwise unfit for the same; in dismissing the plaintiff the defendants were acting in an administrative or executive capacity just as they did when they appointed him. The House of Lords overruled this view; quite apart from the procedure laid down by the disciplinary regulations, natural justice required that a hearing should have been given before the watch committee exercised its power.
There is one important emphasis made in Ridge v. Baldwin, that mere description of a statutory function as administrative, judicial, quasi-judicial or even quasi-administrative, is not in itself enough to satisfy the requirement of natural justice. As Lord Hodson said at p.130: “the answer in a given case is not provided by the statement that the giver of the decision is acting in an executive or administrative capacity as if that was the antithesis of a judicial capacity. The cases seem to me to show that persons acting in a capacity which is not on the face of it judicial but rather executive or administrative have been held by the courts to be subject to the principles of natural justice.”
This all-important statement of Lord Hodson answers the contention of the respondent’s counsel that the writing of exhibit B by the chairman to suspend the applicant was done purely in his administrativecapacity. This argument is blown sky-high. This emphasis of Lord Hodson is a manifestation of the growth of jurisprudence in a progressive society and the rule of natural justice could now be regarded as a sheet-anchor in protecting the individual from unfair
[p.544] of [1967] GLR 536
exercise of certain powers which directly affect him, of which the instant application is a glaring example. It can be gleaned from what has been said earlier in this ruling that I have proceeded on the hypothesis that there was power invested in the Commission of Enquiry (State Fishing Corporation) to suspend the applicant, but that they did exercise their power capriciously by not giving him a hearing. I have taken the trouble to expound the law as regards natural justice in a little detail for the simple reason that, in recent times, excessive powers have been given to public authorities and the exercise of such powers may impinge on the rights of individuals and the principles of natural justice may be flouted in the conduct of their functions by such public authorities which are of a necessity inferior tribunals and are subject to the controlling jurisdiction of the High Court exercised in these prerogative writs.
As a matter of fact the commission or its chairman in suspending the applicant acted in excess of their jurisdiction having regard to the terms of reference in paragraph 3 of the Commission of Enquiry (State Fishing Corporation), Instrument, 1967 (E.I. 6). The purported decision to suspend the applicant was ultra vires the commission or its chairman, and there can be no doubt that on this ground or on the ground of non-compliance with the principles of natural justice, certiorari can issue to quash the decision contained in exhibit B, and I accordingly make the order that the decision contained in exhibit B be quashed. I further order that the Commission of Enquiry (State Fishing Corporation) or its chairman is hereby prohibited from suspending, dismissing, interdicting or in any way interfering with the applicant, V. O. Bannerman, in the performance of his duties as the distribution marketing manager of the State Fishing Corporation.
The learned chief state attorney has invited me to consider exhibit 2 which is a letter from the office of the National Liberation Council and it purports to suspend from duty four officers of the State Fishing Corporation including the applicant. The letter is dated 30 June 1967 and it is interesting to observe that a copy of exhibit B dated 26 June 1967 was sent to the National Liberation Council. I have to consider whether the National Liberation Council has any power to suspend the applicant and in doing this I have to attempt to construe the State Fishing Corporation Instrument, 1965 (L.I. 397). Part XIV of L.I. 397 deals with the Special Powers of the President (now National Liberation Council). It states:
“Notwithstanding anything to the contrary in this Instrument, the [National Liberation Council] may at any time, if it is satisfied that it is in the national interest so to do, take over the
[p.545] of [1967] GLR 536
control and management of the affairs or any part of the affairs of the Corporation and may, for that purpose—
(a) reconstitute the Board;
(b) appoint, transfer, suspend or dismiss any of the employees of the Corporation; and
(c) do, in furtherance of the interests of the Corporation, any other act…”
In view of the words “if the National Liberation Council is satisfied,” I am prepared to hold that conditions which may exist to enable the Council to take over the control and management of the corporation rest entirely within the absolute discretion of the Council and the grounds of their satisfaction are not open to question by the courts. But before the Council will be capable of appointing, transferring, suspending or dismissing any of the employees of the corporation there must be evidence that the Councilhas, in fact, in exercising its power under Part XIV of L.I. 397, taken over the control and management of the corporation.
This calls for examination of exhibit 2 which suspended the applicant and three other officers of the corporation. A careful examination or scrutiny of exhibit 2 does not show that the National Liberation Council has assumed control and management of the State Fishing Corporation or any part of its affairs by virtue of Part XIV of L.I. 397. No document in the nature of an executive instrument has been shown to this court indicating that such assumption of control has taken place. I have not seen one either. The assumption of control and management of the corporation by the National Liberation Council is a condition precedent to the exercise of any of the three powers therein stated and, in the absence of any such evidence from exhibit 2, I hold that the purported suspension of the applicant (and for that matter the other three officers) is ultra vires the National Liberation Council which acted in excess of its power.
I wish to make it abundantly clear that the National Liberation Council may occupy a dual capacity in that it has powers to enact Decrees which have the force of an Act of Parliament and it also occupies an executive position such as the deposed President occupied. It is in this latter capacity that the National Liberation Council is being considered in view of Part XIV of the State Fishing Corporation Instrument, 1965 (L.I. 397). I have taken pains to bring out clearly the dual capacity of the National Liberation Council because if the Council exercises its legislative functions by promulgating Decrees, I am of the view that
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the ultra vires doctrine cannot be used to question the validity of a Decree which, as I have stated, has the force and effect of an Act of Parliament. The position may, however, be different if the Act of Parliament or of a Legislative Assembly is in violation of the Constitution of the country. That is not the matter being considered here and, in any case, this country has no Constitution yet. But the ultra vires principle is effective to control those who exceed the administrative discretion which an Act has given. It is in this respect that the ultra vires rule may be invoked to question the validity of exhibit 2, the letter from the National Liberation Council, suspending the applicant and the other officers mentioned therein because the prerequisites for the exercise of discretion to suspend in Part XIV of L.I. 397 have not been complied with.
Perhaps I may be permitted to make the bold and ex cathedra pronouncement that the discretion to suspend which may be invested in the National Liberation Council may still be questioned by these courts via a writ of certiorari as it seems the rules of natural justice have not been complied with—no hearing having been given to the applicant. I am emboldened to make this statement by what Lord Hodson said in Ridge v. Baldwin [1964] A.C. 40 at p. 130, H.L. which I have already referred to in this ruling. The language of Lord Lyndhurst C.B. in Capel v. Child (1832)2 C. & J. 558 offers very fruitful material for study. In that case the Bishop of London had power to appoint a court to perform, or assist in performing ecclesiastical duties and might throw the burden of the stipend of that court upon the person the insufficiency of whose performance of the duties had led to the necessity of the appointment. The Bishop appointed a curate and assigned to him a stipend but the plaintiff did not pay and he was summoned before the Bishop, but he did not attend and he was admonished to pay the stipend. He then appeared for the first time and alleged that he had not had a proper opportunity of being heard upon the original application. Here are the picturesque words of Lord Lyndhurst C.B. at p. 577:
“Here is a new jurisdiction given—a new authority given: a power is given to the bishop to pronounce a judgment; and, according to every principle of law and equity, such judgment could not be pronounced, or, if pronounced, could not for a moment be sustained, unless the party in the first instance had the opportunity of being heard in his defence, which in this case he had not; and not only no charge is made against him whichhe had an opportunity of meeting, but he has not been summoned that he might meet any charge.”
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It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so, he is to be made aware of the charges or allegations or suggestions which he has to meet: see Kanda v. Government of the Federation of Malaya [1962] A.C. 322, P.C. Here is something which is basic to any civilised system of jurisprudence: the importance of upholding it far transcends the significance of any particular case. It would seem therefore that the National Liberation Council’s action to suspend the applicant cannot stand. However, I have not been asked to make any order against the National Liberation Council in its executive capacity and I am legally bound to refrain from offering a relief when none has been asked for. I have, however, dealt with this matter of the National Liberation Council solely on the ground that counsel for the respondent invited me to hold that exhibit 2 was an administrative action and also an answer to the applicant’s request for writs of certiorari and prohibition. I have, however, in this ruling attempted to explain why I cannot accede to counsel’s request, and the application for writs of certiorari and prohibition has been allowed as already indicated in this ruling.
I think this is a proper case where reasonable costs ought to be awarded to the applicant and I am of the opinion that costs of N¢100.00 would be reasonable in the circumstances, but I order that they should be paid not by the chairman of the commission of inquiry but by the commission itself. There is no doubt that the chairman acted in his official capacity, and if such an order is not made, execution may issue against him personally and it is not my intention that such a situation should arise.
DECISION.
Application for certiorari and prohibition granted with costs.
L.F.A
