HIGH COURT, ACCRA
Date: 11 APRIL 1974
ABBAN 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. Metropolitan Police Commissioner; Ex parte Parker [ 1953] 1 W.L.R. 1150; [1953] 2 All E.R. 717; 117 J.P. 440; 97 S.J. 590.
(3) R. v. Statutory Visitors to St. Lawrence’s Hospital, Caterham; Ex parte Pritchard [1953] 1 W.L.R. 1158; [1953] 2 All E.R. 766;117 J.P. 458; 97 S.J. 590.
(4) Republic v. Central Disciplinary Board; Ex parte Tsawodzi [1973] 2 G.L.R. 299.
(5) Commissioner of Income Tax v. Maatschappij de Fijnhouthandel N.V. (Fynhout) [1974] 1 G.L.R. 283, C.A. (full bench).
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari to quash an order of dismissal from the Police Service issued by the government and communicated by the respondent, the Inspector-General of Police, to the applicant. The facts are sufficiently stated in the ruling.
COUNSEL
Kudjawu (Ahiabor with him) for the applicant.
N. M. C. Dodoo, Chief State Attorney, for the respondent.
JUDGMENT OF ABBAN J
The applicant is seeking an order of certiorari under Order 59, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). In his statement, filed in support of the application, the applicant stated as follows:
“The applicant desires leave to apply for an order of certiorari to remove into this honourable court for the purpose of being quashed a summary dismissal order dated 21 November 1973, issued by the Inspector-General of Police in his capacity as a disciplinary authority. The said dismissal order purported to dismiss the applicant from the Ghana Police Service.”
(The emphasis is mine.)
Before 21 November 1973, the applicant was in the Ghana Police Service. He had been in the said service for over 29 years, and at the time of his dismissal, he was holding the post of a superintendent. It appears that following allegations of impropriety made against the applicant, the applicant was summoned before the Commission of Enquiry into Bribery and Corruption. Among other things, it was alleged that the applicant and other high ranking police officers and one Madam Aprometi
[p.406] of [1974] 1 GLR 404
had conspired together and exchanged 400 cartons of contraband “555” cigarettes with locally made ones. After investigation by the said commission, adverse findings were made against the applicant and some of the other officers. The said commission of inquiry then recommended that the officers involved, including the applicant, should be dismissed summarily from the police service. The government, by paragraph 55 (b) of its White Paper No. 5/73, exhibit 1, accepted the said recommendation of the commission in the following terms:
“55 (b) That the following Police Officers should be dismissed summarily from the Police Service because of their conduct in Madam Aprometi’s illegal transaction:-Superintendent V. G. K. Agbottah, Inspector Trangott F. Awueyedu and Inspector K. A. Kuma.”
The applicant is the Agbottah referred to in the recommendation; and on 21 November 1973, the Inspector-General of Police wrote to the applicant, informing the applicant of his dismissal from the police service. The first paragraph of the said letter, which is relevant to the application reads as follows: “Following the publication of the Third Interim Report of the Commission of Enquiry into Bribery and Corruption, which among other things recommended your summary dismissal from the Police Service for the improper manner in which you conducted the case involving the smuggling into Ghana of 400 cartons of contraband ‘555’ cigarettes by a Madam Aprometi, and consequent to Government’s acceptance of the said recommendations, as contained in its White Paper W.P. No. 5/73 published on Wednesday, 21 November 1973, you are hereby, on the orders of the National Redemption Council, summarily dismissed from the Police Service.”
The remaining paragraphs of that letter consisted of administrative directives to the applicant concerning the handing over of government properties in the applicant’s possession. Learned counsel for the applicant contended that the applicant was not given opportunity to be heard before he was dismissed, and that was in breach of the rules of natural justice. Counsel further contended that the Inspector-General of Police, as a disciplinary authority, had no power under the Police Service (Disciplinary Proceedings) Regulations, 1971 (L.I. 688), to dismiss the applicant without first instituting formal or summary proceedings against the applicant, as provided under regulation 4. It may be noted that by regulation 4 (3) of the said L.I. 688, formal proceedings must be instituted where the offence, if proved, will call “for the imposition of a major penalty.” Under section 18 (2) of the Police Service Act, 1970 (Act 350), dismissal is considered a major penalty.
It was therefore argued by learned counsel that formal proceedings ought to have been brought against the applicant. That is, a written charge should have been preferred and served on the applicant not less than three days before the hearing of the formal proceedings; and the procedure laid down in Part II of L.I. 688 ought to have been followed.
[p.407] of [1974] 1 GLR 404
Counsel submitted that since the respondent failed to comply with those mandatory provisions, the dismissal of the applicant was irregular and was therefore a nullity.
Learned counsel for the respondent, in his reply, submitted that the application is misconceived. Counsel contended that this is a matter essentially between a master and his servant and if the applicant, as a servant, feels that he has unlawfully been dismissed, his proper remedy is to bring ordinary action and not to resort to an application for certiorari.
With due respect to learned counsel, there is no merit in this contention. In the first place, the respondent is not the employer of the applicant. The employer of the applicant is the Ghana Government and, like the applicant, the respondent is just one of the employees of the government. All that the applicant is saying in this application, whether rightly or wrongly, is that the respondent, even though he is also an employee of the government, has been entrusted with certain statutory duties which included the taking of quasi-judicial decisions which might affect the rights of other police officers; and that the respondent has taken one such decision which has adversely affected him (the applicant). The applicant is therefore challenging the validity of that decision because, to the applicant, the respondent took that decision without following the laid down procedure and in breach of the rules of natural justice. I do not see how a master and servant relationship comes in here. The point could properly have been canvassed if the government had been the respondent in this application. In any case, the issue of a breach of the rules of natural justice, as being alleged by the applicant, exists quite independently of any contractual or master and servant relationship, and certiorari is the appropriate remedy, provided there is a duty imposed on the person, whose conduct is called in question, to act in a judicial or quasi-judicial manner.
Learned counsel for the respondent further contended that this court has no jurisdiction to entertain the application by virtue of section 2 of the Indemnity Decree, 1973 (N.R.C.D. 277). I have no hesitation in rejecting this submission as misconceived. The said section 2 of the Decree provides that:
“No Court shall entertain any action in any civil proceedings against the Republic, the National Redemption Council, the Executive Council, any member of the Armed Forces or of the Police Service, or any other person, in respect of any act or commission done or purported to be done in good faith in pursuance of any Decree of the National Redemption Council or any other enactment.”
For the section to apply, it is necessary to show that the acts, in respect of which the civil proceedings are instituted, were done by the defendant or by the respondent, as the case may be, in good faith and in an attempt to carry out duties imposed on the defendant or the respondent by a Decree or by some other statute. Learned counsel for the respondent in the course of his argument contended that the respondent herein in writing that letter of dismissal was not exercising any of his powers, as a disciplinary authority, under Act 350 or under L.I. 688, or under any other enactment.
[p.408] of [1974] 1 GLR 404
Consequently, I do not see how, in the same breath, it can be argued that the respondent acted “in pursuance of any Decree … or any other enactment,” and therefore he is protected by section 2 of the said Indemnity Decree! Since the respondent did not write that letter, which is the cause of the present application, in pursuance of any enactment, the said section 2 is not applicable and this court has jurisdiction to deal with the application.
It seems to me that the only meaningful submission, put forward by learned counsel for the respondent against the application, is his submission that the decision to dismiss the applicant from the police service was taken by the Government of the National Redemption Council, and not by the respondent who merely conveyed the said decision to the applicant, through the letter dated 21 November 1973. Learned counsel contended that by communicating the decision of the National Redemption Council to the applicant, the respondent was carrying out his administrative functions; and that the respondent did not act as a disciplinary authority under the Police Service Act, 1970 (Act 350), or under L.I. 688.
The questions which must be answered are, whether the respondent, to whom this order of certiorari is sought to be directed, is a judicial tribunal or a quasi-judicial body, and what kind of order or decision which the respondent has made and which can be produced to this court in order that this court may examine it and see whether it was made in accordance with law or with the rules of natural justice.
The scope of the order of certiorari must always be borne in mind. Certiorari requires the record or the decision of an inferior court or tribunal to be sent up to the High Court to have its legality inquired into, and, if necessary, to have the decision or the record quashed. With the development of administrative law, under which government operates and certain persons are given powers of holding inquiries and then making orders which may affect other persons, the remedy of certiorari has been considerably extended. So that certiorari will always lie not only against the decisions of inferior courts or tribunals but also against any person who has to act judicially. In the well-known case of R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171, C.A. the principles on which certiorari will be granted were clearly stated by Lord Atkin. At p. 205 of the report the learned lord after explaining the difference between prohibition and mandamus continued:
“It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognized, as Courts of Justice. Wherever anybody 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.”
[p.409] of [1974] 1 GLR 404
It cannot therefore be over-emphasized that for the application for certiorari to succeed, there must be a judicial or quasi-judicial tribunal or a person whose duty it is to act judicially, and there must also be something that can be called a determination or a decision which affects the rights of the applicant.
In the present application, it is sought to bring up and quash, a summary dismissal order dated 21 November 1973, issued by the Inspector-General of Police in his capacity as disciplinary authority. It was alleged that the said dismissal order purported to dismiss the applicant from the Ghana Police Service. But is it true that the Inspector-General of Police, the respondent herein, on the said date made any summary dismissal order against the applicant? Whether or not a summary order of dismissal was made by the respondent on 21 November 1973, is a question of fact. The applicant, in his affidavit, relied on the letter of 21 November 1973, a copy of which was attached to the present application as exhibit A.
I have earlier on in this ruling referred to certain portions of that letter. The letter is the only evidence produced by the applicant to prove that the respondent made an order dismissing the applicant. I have carefully considered the contents of the letter and my view is that there is nothing in that letter which, by any stretch of construction, could mean that the respondent ordered the dismissal of the applicant. Neither is there anything in it to show that the respondent, acting as a disciplinary authority, took a decision about the applicant. Indeed the respondent, as rightly pointed out by learned counsel for the respondent, did not at any time purport to exercise any of his powers under section 19 or under any other section of the Police Service Act, 1970 (Act 350), or under the Police Service (Disciplinary Proceedings) Regulations 1971 (L.I. 688). The respondent in his said letter, which was carefully worded, put it beyond every shadow of doubt that it was the National Redemption Council that had decided and ordered that the applicant should be expelled from the service. The latter part of paragraph one of the letter brings this out clearly. It says, “you are hereby, on the orders of the National Redemption Council summarily dismissed from the Police Service.” (The emphasis is mine.)
It cannot therefore be said that the respondent took a decision to dismiss the applicant or ordered the dismissal of the applicant. The decision, as I have said, was that of the National Redemption Council which is not a party to the proceedings; and since there is no order or determination which the respondent has made and which can be brought up to the High Court “to have its legality inquired into” and, if necessary, to have it quashed, certiorari cannot lie: see R. v. Metropolitan Police Commissioner; Ex parte Parker [1953] 1 W.L.R. 1150.
In the latter case, the applicant’s licence as a cab driver was revoked by the commissioner without giving the applicant a hearing and allowing him to call a witness who, the applicant alleged, would have been able to rebut the allegation of the police officer, and there being a denial of natural justice the applicant brought an application for certiorari. It was held, inter alia, that to revoke the applicant’s licence by virtue of the power given to the commissioner by paragraph 30 of the London Cab Order,
[p.410] of [1974] 1 GLR 404
1934 (S.R. & O. 1934, No. 1346), was not the decision or order of the commissioner himself, and he was not exercising a judicial or quasi-judicial function; and since he made no order which the court could quash, an order for certiorari would not lie. In the course of his judgment, at pp. 1154-1155, Lord Goddard C.J. said:
“It is possible to find on the wording of the order under which the commissioner acted that he was either in the position of a judge or of a quasi-judge; exactly what a quasi-judge is nobody has ever attempted to define, but I suppose it is a person who has to decide on evidence and come to a conclusion on facts whether in dispute or indisputable. One thing that weighs with me is that in considering whether a tribunal is a judicial tribunal or quasi-judicial tribunal, one would expect to find that the tribunal had to make an order or something in the nature of an order, because otherwise there is nothing to be brought up to be quashed in this court. The motion is to bring up an order of the commissioner. There is nothing here to show that there ever was an order.”
(The emphasis is mine.)
In the case of R. v. Statutory Visitors to St. Lawrence’s Hospital, Caterham; Ex parte Pritchard [1953] 1 W.L.R. 1158, the applicant moved for an order of certiorari to bring up and quash the report of the opinion of the visitors. Parker J. in concurring in the judgment of Lord Goddard C.J. at p. 1166, said:
“I agree, and I would only add that in my opinion it cannot be too clearly understood that the remedy by way of certiorari only lies to bring up to this court and quash something which is a determination or a decision.”
(The emphasis is mine.)
After referring to other cases the learned judge, on the same page, went on:
“There has been a great deal of discussion and a large number of cases extending the meaning of the word ‘court.’ A number of such cases were referred to in a decision of this court in Reg. v. Manchester Legal Aid Committee ([1952] 2 Q.B. 413), but nothing in that case was intended to, or did in any way, enlarge the scope of the remedy by way of certiorari so far as it affects the point that there must be a decision or a determination.”
(The emphasis is mine.) The learned judge at p. 1168 then concluded his judgment as follows: “In my view, this motion fails on the ground that there is no decision or determination to be quashed …” (My emphasis).
In the instant case, since the decision or the order was that of the government, I am wondering whether even if the government had been a party to the present application, the said decision could have been quashed. For, that decision was clearly an act of the executive, and I am doubtful whether the court by means of certiorari can control such an act. In any event, I think an executive decision, such as the one in question, cannot be treated as a judicial or quasi-judicial decision.
[p.411] of [1974] 1 GLR 404
Of course, if after the publication of the said report of the commission of inquiry the respondent, acting on the adverse findings made against the applicant, had decided on his own and without any order from the National Redemption Council, to dismiss the applicant from the Police Service and, in pursuance of that decision, had written to the applicant to that effect, the position would have been different. Because in that case the respondent would clearly be acting as a disciplinary authority, and he would have been under a duty to act in accordance with the provisions of Act 350 and L.I. 688. His conduct would definitely have come within the principles stated in the case of Republic v. Central Disciplinary Board; Ex parte Tsawodzi [1973] 2 G.L.R. 299, cited by learned counsel for the applicant. The applicant in the said case was not ordered to be dismissed by the National Redemption Council. He was dismissed by the Central Disciplinary Board, purporting to act as a disciplinary authority. See p. 303 of the report where the learned judge stated:
“Exhibit A, the dismissal notice, signed by an assistant commissioner purported to relay ‘a sentence of dismissal from the service’ imposed ‘by the Central Disciplinary Board … with effect from 13 June 1972’.”
I must say that Tsawodzi’s case, having regard to the facts in that case, was correctly decided. But the facts and the circumstances of that case are quite different from those in the present case. All that the respondent herein did by his letter of 21 November 1973, was that he acted as a conduit pipe in bringing the decision or the order of the National Redemption Council to the notice of the applicant, and the fact of communicating the decision of the National Redemption Council to the applicant cannot make the respondent the author of that decision.
Furthermore, it cannot also be argued that despite the order or the decision of the National Redemption Council that the applicant should be dismissed from the service, the respondent was still bound to institute proceedings and to hear evidence and submissions of the applicant as required by the Police Service Act, 1970 (Act 350). The order of the National Redemption Council, as stated in the letter of 21 November 1973, did not give any discretion in the matter to the respondent, and anything in the nature of a judicial inquiry, as envisaged by the said Act 350, or of putting the respondent in the position of a quasi-judge, was quite impossible to maintain. That is, the respondent could not have acted as a disciplinary authority on the receipt of the said order from the government. The wind had been taken out of the respondent’s sail, and he could not do otherwise but to communicate the said order to the applicant. In other words, the respondent’s role at that stage, as the head of the Police Service, was to carry out the order or was to implement the decision which he had received; and in implementing the said decision he was acting purely in an administrative capacity, and certiorari will not lie against an administrative act such as this: see the judgment of the full bench of the Court of Appeal in the case of Commissioner of Income Tax v. Maatschappij de Fijnhouthandel N.V. (Fynhout) [1974] 1 G.L.R. 283, C.A.
[p.412] of [1974] 1 GLR 404
I therefore hold that the letter written by the respondent and dated 21 November 1973, cannot be treated as a document which is subject to certiorari. To say that a letter like this, which contains nothing more or less than a piece of information and administrative directives, can be brought up to be quashed by this court by means of certiorari would amount to extending the doctrine relating to certiorari to an unlimited and unfortunate extent.
In the circumstances, the application must fail, and it is accordingly dismissed. I make no order as to costs.
DECISION
Application dismissed.
S.E.K.
