HIGH COURT, CAPE COAST
Date: 4 NOVEMBER 1974
EDWARD WIREDU J
CASES REFERRED TO
(1) Barnard v. National Dock Labour Board [1953] 2 Q. B. 18; [1953] 1 All E.R. 1113; 96 S.J. 331; [1953] 1 Lloyd’s Rep. 371, C.A.
(2) Republic v. Inspector-General of Police; Ex parte Wood [1973] 2 G.L.R. 113.
(3) Republic v. Central Disciplinary Board;. Ex parte Tsawodzi [1973] 2 G.L.R. 299.
(4) R. v. Woodhouse [1906] 2 K.B. 501; 75 L.J.K.B. 745; 95 L.T. 367, 399; 70 J.P. 485; 22 T.L.R 603, C.A; reversed sub nom. Leeds Corp. v. Ryder [1907] A.C. 420; 76 L.J.K.B. 1032; 97 L.T. 361; 71 J.P. 484; 23 T.L.R. 721; 51 S.J. 716, H.L.
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(5) 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.
(6) R. v. North; Ex parte Oakey. [1927] 1 K.B. 491; 96 L.J.K.B. 77; 136 L.T. 387; 43 T.L.R. 60; 70 S.J 1181, C.A.
(7) R. v. Buem Krachi Native Appeal Court; Ex parte Obeng, Court of Appeal, Cyclostyled Judgments (Civil), January-June 1958, p. 143, unreported.
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari to quash the service inquiry proceedings which resulted in the dismissal of the applicant, a police constable, from the Ghana Police Service. The facts are sufficiently stated in the ruling.
COUNSEL
G. K. Acquah for the applicant.
Baddoo, Senior State Attorney, for the respondent.
JUDGMENT OF EDWARD WIREDU J
The applicant in this case is a general police constable class 2 in the Ghana Police Service. On 15 February 1974, an information was preferred against him before one Mr. Asare, an Assistant Superintendent of Police, who conducted a service inquiry into an allegation of drunkenness against him under the directions of the Central Regional Disciplinary Board under the Police Service (Disciplinary Proceedings) Regulations, 1971 (L.I. 688). The information given to the applicant pursuant to the authority of the Central Regional Disciplinary Board together with the particulars of the offence is in the following form:
“NO. 21619/GC/2 NELSON ADDO Service Inquiry
I have to inform you that, the Central Regional Disciplinary Board of the Ghana Police Service, has in accordance with Police Service (Disciplinary Proceedings) Regulations L.I. 688 of 1971, nominated me to hold a service inquiry on you for the following charge:
Statement of Offence
Drunkenness contrary to regulation 21 (3) (h) of [the Police Service (Administration) Regulations, 1972] L.I. 765.
Particulars of Offence
For that you on 8 August 1973 between the hours of 8.30 p.m. and 9.05 p.m. when on armed guard duty at the G.N.T.C./Wholesale, Aboom Wells, Cape Coast were found drunk.
2. In accordance with regulation 7, subregulation 1 (b) of L.I. 688, you may within three days of receipt of this notification, if you wish, submit
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a written statement of exculpation of the above charge.
3. ‘ Exculpation’ means proof of innocence.”
On 4 September 1974 following a report made to the Inspector-General of Police on the result of the above service inquiry, the following dismissal order was sent to the applicant:
“Review of Service Inquiry Proceedings NO. 21619 GC/2 NELSON ADDO
Following a service inquiry held into your conduct by Mr. A. A. Asare Assistant Superintendent, in accordance with regulation 4 (3) (c) of the Police Service (Disciplinary Proceedings) Regulations, 1971, (L.I. 688), on charge/s of—drunkenness—contrary to section 21 (3) (h) of [the Police Service (Administration) Regulations, [1974] L.I. 880 and your subsequent conviction, I have, after reviewing the record of proceedings and considering the findings of the adjudicating officer, imposed a sentence of dismissal from the service on you, in exercise of the powers vested in me under section 19 (5) of the Police Service Act, 1970 (Act 350).
2. If you are aggrieved by the sentence or dissatisfied with the manner in which the inquiry was conducted and wish to appeal to the Police Council, you may do so, provided that notice for intention to appeal is given and the grounds in support thereto, are submitted within six weeks from the date on which this decision is communicated to you.”
On 4 October 1974 the applicant filed his present application in this court seeking to have the proceedings which subsequently resulted in his dismissal brought to this court for the purpose of being quashed alleging “that the proceedings on which the said decision is based are a nullity since the adjudicating officer Mr. M. A. A. Asare had no jurisdiction to sit over the matter.” By paragraphs (9) and (10) of his supporting affidavit the applicant contended that:
“(9) That I am informed by counsel and verily believe the same to be true that by virtue of section 19 (3) of Act 350 and regulation 3 of L.I. 688, the Central Regional Disciplinary Board of the Police Service have no power to nominate the said M. A. A. Asare to conduct the service inquiry and in consequence the whole proceedings upon which the decision of the Inspector-General of Police is based is a nullity.
(10) Wherefore I swear to this affidavit in support of my application praying for an order of certiorari to issue to quash the decision of the Inspector-General of Police contained in exhibit B.”
On the application coming on for hearing before me on 21 October 1974 after leave had been granted, the only point argued was whether it was
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competent for the applicant to have sought in the first instance the present relief when by regulation 25 (1) of L.I. 688 he could have appealed to the Police Council.
Mr. Baddoo, senior state attorney, who appeared for the Inspector-General of Police contended that in his view since L.I. 688 was promulgated under the powers conferred on the Commissioner responsible for Internal Affairs under the Police Service Act, 1970 (Act 350), to regulate police service disciplinary proceedings, any person aggrieved by a decision taken pursuant to proceedings under L.I. 688 should exhaust all remedies provided under the said regulations before resorting to any other remedy outside L.I. 688. Continuing learned senior state attorney referred to regulation 25 (1) of L.I. 688 and submitted that the said regulation gave the applicant a right of appeal to the Police Council from a decision of the type being challenged in this court by the applicant. He therefore argued that the present application was misconceived and should be dismissed.
For the applicant it was submitted that the service inquiry conducted against the applicant in respect of which the present application was brought was quasi-judicial and therefore subject to the Supervisory powers of this court both under the common law and under section 20 of the Courts Act, 1971 (Act 372). For authority learned counsel cited the case of Barnard v. National Dock Labour Board [1953] 1 All E.R. 1113, C.A and submitted that the applicant was within his rights to resort to what he considered the most convenient remedy notwithstanding the provisions of regulation 25 (1) of L.I. 688. He therefore argued that the learned senior state attorney having conceded that the proceedings were a nullity because of want of jurisdiction there could not have been a better approach to solving the problem than a resort to the present relief.
The sole question for consideration in this case is whether a person aggrieved by a decision of an inferior tribunal should first be limited to his right of appeal if there is any, before resorting to any other prerogative orders he may be entitled to.
Regulation 25 (1) of L.I. 688 upon which the arguments of learned senior state attorney were founded reads as follows:
“The defendant in any proceedings before the Inspector-General or other superior police officer or before the Central Board or a Regional Board may appeal to the Police Council against any decision involving the imposition of a penalty, and in any such case the penalty shall not take effect until the appeal is determined.”
The very wording of the above regulation reveals that the right of appeal conferred on an aggrieved party in any proceedings conducted under L.I 688 is not mandatory. It is also beyond doubt that proceedings conducted under L.I. 688 are judicial or quasi-judicial and therefore subject to the supervisory powers of this court under section 20 of Act 372: see Republic v. Inspector-General of Police; Ex parte Wood [1973] 2 G.L.R. 113; Republic v. Central Disciplinary Board, Ex parte Tsawodzi [1973] 2 G.L.R. 299 and R. v. Woodhouse [1906] 2 K.B. 501 at p. 540, C.A. These prima facie entitle the applicant to come to this court to seek
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the remedy of certiorari under section 20 of Act 372 against the proceedings which terminated his service with the Ghana Police Service for want of jurisdiction. The question then is did his failure to appeal under regulation 25 (1) of L.I. 688 disable him from seeking his remedy under section 20 of Act 372? The obvious answer to this question is a big NO.
The prerogative order of certiorari lies to remove proceedings from inferior courts to the High Court for a variety of purposes, sometimes at common law, sometimes by a statute and sometimes at common law as restricted by a statute. The most important function of the order is that by it, in the exercise of the supervisory jurisdiction of the High Court over inferior courts, judgments, orders, conviction or other proceedings of inferior courts made without or in excess of jurisdiction may be removed into the High Court to be quashed. For this purpose the terms “courts” and “excess of jurisdiction” bear the same meaning as in regard to prohibition orders : see R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171 per Atkin L.J. at pp. 204-205, C.A. and R. v. North ; Ex parte Oakey [1927] 1 K.B. 491, C.A. is an authority for the proposition that if an inferior court has no jurisdiction the fact that an appeal lies to some court from its decision does not prevent an order of prohibition being made.
In R. v. Buem Krachi Native Appeal Court; Ex parte Obeng, Court of Appeal, Cyclostyled Judgments (Civil), January-June, 1958, p. 143, where a similar question as posed for determination in this case arose for consideration by the Court of Appeal, Ollennu J.(as he then was) had this to say at p. 144:
“The order which the applicant seeks to be brought up and quashed is one against which an applicant could appeal. The applicant failed to exercise his right of appeal and brought this application after the loss of his right to appeal due to expiration of time within which he could appeal.
In my opinion the failure to appeal is not fatal. Certiorari and appeal are not alternative remedies, they are not mutually exclusive the one of the other, both can be exercised by an aggrieved party though not contemporaneously. Thus in the case of White v. Steale (1862) 12 C.B. (N.S.) 383, an application for certiorari was granted although an appeal taken against the decision on the same grounds as those upon which the applicant for certiorari was entertained had been dismissed.”
It is therefore clear from the above and the scope of the remedy being sought that the present application cannot be successfully resisted on the ground that an appeal from the proceedings which is being presently attacked lies to the Police Council, of which procedure the applicant had failed to avail himself. From the authorities above, the fact that an appeal lies from the decision of one tribunal to another court does not prevent an order of certiorari being issued if the said tribunal purported to exercise jurisdiction which it has not got. Certiorari and appeal are not alternative
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remedies nor are they mutually exclusive the one of the other. Both can be exercised by an aggrieved party though not contemporaneously: see R. v. North; Ex parte Oakey (supra) and R. v. Buem Krachi Native Appeal Court; Ex parte Obeng (supra).
The only ground taken against the present application having failed the application succeeds and I order that the proceedings of the service inquiry conducted before Mr. Asare, the Assistant Superintendent of Police, and the revision order of the Inspector-General dated 4 September 1974 based on it dismissing the applicant from the Police Service be brought to this court for the purpose of being quashed.
DECISION
Order accordingly.
S.Y.B.-B.
