COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE vs. E P CHURCH [2001-2002] 1 GLR 356

CASES REFERRED TO:

(1) Commission on Human Rights and Administrative Justice v Minerals Commission, Court of Appeal, Accra, 23 December 1998, unreported.

(2) People’s Popular Parry v Attorney-General [1971] 1 GLR 138.

(3) Commission on Human Rights and Administrative Justice

[p.358] of [2001-2002] 1 GLR 356 v Social Security Bank, High Court, Accra, 21 August 1996, unreported.

PRELIMINARY OBJECTION by the respondent-church against the application by originating motion on notice by the Commissioner for Human Rights and Administrative Justice to enforce his award against the respondents following an investigation of a complaint brought against the respondents by some ex-employees. The facts are fully set out in the ruling.

Justin Dorgu for the applicant.

Saviour Dzikunu for the respondent.

Asare Korang J. The applicant on 12 June 2000 filed an originating motion on notice for an order compelling the respondent to implement the decision of the applicant dated 19 July 1999 to the effect that:

“The complainants be immediately paid an additional severance award amounting to the difference between the total years service and the eight years’ payment made to them in accordance with article 41 of the 1996 conditions of service of the EP Church, Ghana Employees.”

On the date fixed for the hearing of the application, counsel for the respondent, Mr Saviour Dzikunu, took a preliminary objection raising two main points against the action brought by the applicant. Mr Dzikunu first argued referring to article 218(d)(iii) of the Constitution, 1992 and section 18(1)(ii) of the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456) that the applicant has no cause of action against the respondent because the action should not have been brought in by the applicant, but by the persons who were the petitioners or complainants before the applicant, the applicant himself having acquired no rights as against the respondent.

To this argument, counsel for the applicant, Mr Dorgu, responded that articles 218(d)(iii) and 229 of the Constitution, 1992 and section 18(1)(ii) of Act 456, vest the applicant with power to sue because by those provisions he has supplanted the interest of the complainants.

[p.359] of [2001-2002] 1 GLR 356

Article 218(d)(iii) of the Constitution, 1992 provides:

“218. The functions of the Commission shall be defined and prescribed by Act of Parliament and shall include the duty … (d) to take appropriate action to call for the remedying, correction and reversal of instances specified in paragraphs (a), (b) and (c) of this clause through such means as are fair, proper and effective, including …

(iii) bringing proceedings in a competent Court for a remedy to secure the termination of the offending action or conduct, or the abandonment or alteration of the offending procedures.”

(The emphasis is mine.)

By section 18 of Act 456 made under article 218 of the Constitution, 1992 the procedure to be followed by the commissioner after conducting an investigation is stated as follows:

“18. (1) Where after making an investigation under this Act, the Commission is of the view that the decision, recommendation, act or omission that was the subject matter of the investigation—

(a) amounts to a breach of any of the fundamental rights and freedoms provided in the Constitution; or (b) appears to have been contrary to law; or (c) was unreasonable, unjust, oppressive, discriminatory or was in accordance with a rule of law or a provision of any Act or a practice that is unreasonable, unjust, oppressive, or discriminatory; or

(d) was based wholly or partly on a mistake of law or fact; or

(e) was based on irrelevant grounds or made for an improper purpose; or

(f) was made in the exercise of a discretionary power and reasons should have been given for the decision,

[p.360] of [2001-2002] 1 GLR 356 the Commission shall report its decision and the reasons for it to the appropriate person, Minister, department or authority concerned and shall make such recommendations as it thinks fit and the Commission shall submit a copy of its report and recommendations to the complainant.

(2) If within three months after the report is made no action is taken which seems to the Commission to be adequate and appropriate, the Commissioner, may after considering the comments, if any, made by or on behalf of the department, authority or person against whom the complaint was made, bring an action before any court and seek such remedy as may be appropriate for the enforcement of the recommendations of the Commission.”

(The emphasis is mine.)

It is to be noted that by article 218 of the Constitution, 1992, it is a function or duty of the commission to take proper and effective action on matters that came before it by bringing proceedings in a competent court to secure a remedy. Then by section 18(2) of Act 456, the commissioner after investigating the abuses specified in subsection (1) is empowered within three months after making a report or recommendation on which no action is taken, to go to court to seek the enforcement of its report or recommendation.

What this means in effect is that the commission, represented by the commissioner in any relevant and appropriate proceedings, does not exist in a straitjacket, for quite apart from any right vested in a complainant to sue for a redress of his grievance, the commissioner is also given power to seek a remedy in court in respect of any act or omission investigated by him and on which no action is taken by or on behalf of the correspondent or answerable department, authority or person.

That the commissioner is the person authorised to sue to enforce compliance with a recommendation or report on any act or omission investigated by him, is clearly spelt out in section 9 of Act 456 which reads:

“9. For the purposes of performing his functions under the Constitution, this Act and any other law, the Commissioner may bring an action before any court in Ghana and may seek any remedy which may be available from that court.”

[p.361] of [2001-2002] 1 GLR 356

It is also provided in regulation 11 of the Commission on Human Rights and Administrative Justice (Complaint Procedure) Regulations, 1994 (CI 7) that:

“11. For the purpose of sections 9 and 18(2) of the Act [meaning Act 456], the Commissioner may by writing authorise any public officer to bring an action in any court in the name of the Commissioner.”

These provisions plainly and unequivocally speak for themselves as vesting in the commissioner wide discretionary power to decide whether to go to court or not, to have any complaint or grievance investigated by him redressed where his report or recommendation is not acted upon with timeous and deserving dispatch. It is therefore a misconception of law, with respect, to argue as has been done in this application, that the commissioner (the applicant) has no cause of action against the respondent.

The second limb of the objection of counsel for the respondent herein related to the form of the action filed by the applicant. While conceding that the commissioner may bring an action before a competent court, counsel submitted that since the statutory provisions did not specify the form of the action, one has to have recourse to the High Court (Civil Procedure) Rules, 1954 (LN 140A). Counsel drew the court’s attention to three forms of action under the rules, namely an action commenced by a writ of summons under Order 3 of LN 140A one commenced by originating summons under Order 54A of LN 140A and one commenced by originating motion on notice under Order 59 of LN 140A. It was the submission of counsel that if the present application has been brought under Order 59 of LN 140A, then it is not maintainable because Order 59 of LN 140A deals with prerogative writs, this application not being one for a prerogative writ.

While it is true that in invoking the jurisdiction of the court, the applicant did not state in the body of his application the specific rule of the court he was relying on, his application is headed in bold type “ORIGINATING MOTION ON NOTICE.” I have said already that by sections 9 and 18(2) of Act 456 and by regulation 11 of CI 7, the commissioner may bring an action in court to have his report or recommendation enforced. In case the commissioner decides to go to court, the statutes do not spell out the form the

[p.362] of [2001-2002] 1 GLR 356 action should take.

The action may very well be commenced by taking out a writ of summons and in Commission on Human Rights and Administrative Justice v Minerals Commission, Court of Appeal, Accra, 23 December 1998, unreported it was recognised by Benin JA that, that was a cumbersome procedure. Cited in that case was the decision in People’s Popular Party v Attorney-General [1971] 1 GLR 138 which held that when a statute provides for an application to the court without specifying the form in which it is to be made and the normal rules of court do not expressly provide for any special procedure, such an application may be made by an originating motion.

In the Minerals Commission case (supra), counsel for the respondent had argued that the proper remedy open to the applicant against the respondent (a public officer) was an order of mandamus. To this submission, Benin JA expressed the view that where there is more than one originating process open to a party to seek redress, he may choose one of them to suit his purpose and he will be estopped from having recourse to the other after judgment has been pronounced in the earlier action. Thus, the fact that the applicant could apply by way of mandamus did not prevent him from coming by an originating motion on notice which was also effective to secure the same remedy.

The People’s Popular Party case (supra) was also cited with approval by Baddoo JA, sitting as an additional High Court judge, in the case of Commission on Human Rights and Administrative Justice v Social Security Bank, High Court, Accra, 21 August 1996, unreported, where the learned judge held that the commissioner has a discretion as to how proceedings may be initiated to compel compliance with its recommendations.

A few examples of cases in which the use of an originating motion is compulsory under the English Supreme Court Practice, Vol 1 (1993 ed) are these:

(a) An application under any enactment for an order directing a minister, tribunal or other person to state a case for determination by the High Court or to refer a question of law to the court by way of case stated must be made by originating motion (Order 56, r 8(1)).

(b) Proceedings for the determination of a case stated, or

[p.363] of [2001-2002] 1 GLR 356 a question of law referred by way of case stated, under any enactment must be began by originating motion (Order 56, r 10(1)).

(c) Applications for an order of committal for contempt where there are no pending proceedings (Order 52, r 3).

(d) Application under any enactment to quash an order, scheme, certificate, etc, made by a minister, local authority, etc, (Order 94, r 2(1)).

There are, of course, other examples cited in the English rules which I think we may conveniently adopt and perhaps modify to suit our circumstances in order to facilitate the commencement of certain classes of actions by originating motion.

The opinion I express about the application before me is that, it was properly commenced by the applicant issuing an originating motion on notice to obtain an order of this court enforcing his recommendations. In the circumstances, the preliminary objection raised by counsel for the respondent is dismissed. No order as to costs.

Preliminary objection overruled.

DRKS