REPUBLIC vs. CENTRAL DISCIPLINARY BOARD; EX PARTE TSAWODZI [1973] 2 GLR 299

CASES REFERRED TO

(1) R. v. Kent Police Authority; Ex parte Godden [1971] 2 Q.B. 662; [1971] 3 W.L.R. 416; [1971] 3 All E.R. 20, C.A.

(2) 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, H.L.

(3) Byrne v. Kinematograph Renters Society, Ltd. [1958] 1 W.L.R. 762; [1958] 2 All E.R.579; 102 S.J. 509.

(4) University of Ceylon v. Fernando [1960] 1 W.L.R. 223; [1960] 1 All E.R. 631; 104 S.J. 230, P.C. (5) Wiseman v. Borneman [1969] 3 W.L.R. 706; [1969] 3 All E.R. 275; 45 T.C. 540; 113 S.J. 838, H.L.

(6) Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R. 924;

[1968] 1 All E.R. 694; 112 S.J. 171, H.L.

NATURE OF PROCEEDINGS

APPLICATION for an order of certiorari to quash the order of dismissal imposed on the applicant by a police disciplinary board on the ground of breach of natural justice and statutory procedures. The facts are set out in the ruling.

COUNSEL

F. Y. Kpegah for the applicant.

A. L. Djabatey, Senior State Attorney (Nii-Amassah Kotey, Assistant State Attorney, with him) for the respondent.

JUDGMENT OF FRANCOIS J.

I preface this ruling with quotations from opinions of Lord Denning M.R. and Lord Reid which are in point here. The observation of Lord Denning M.R. appears in R. v. Kent Police Authority; Ex parte Godden [1971] 3 W.L.R. 416 at p.421, C.A. There the Master of the Rolls stated that “decisions leading to compulsory retirement are of a judicial character and must conform to the rules of natural justice.” Lord

[p.301] of [1973] 2 GLR 299

Reid’s opinion appears in Ridge v. Baldwin [1964] A.C. 40 at p. 65, H.L. where he said that “dismissal from an office where there must be something against a man to warrant his dismissal” may only be carried out in accordance with the rules of natural justice.

The applicant, a police officer, had the misfortune to be involved in a brawl when lawfully assisting in the collection of basic rates. He was convicted by the District Magistrate, Ho, on 13 June 1972 for assault contrary to section 84 of the Criminal Code, 1960 (Act 29), and fined ¢40.00. The applicant’s misfortunes appear only just to have begun, for before he had had time to reflect on his conviction he was flung out of the police service with ignominy. His dismissal notice was dated 14 June 1972. It shows that the decision to terminate the applicant’s association with the police service was not only taken but also communicated to him with alacrity. Such expedition has nothing to commend it.

In invoking the court’s supervisory jurisdiction to quash the order of dismissal, a number of legal matters have been raised on behalf of the applicant. They involve a consideration of the Police Service Act, 1970 (Act 350), and its companion legislation, the Police Service (Disciplinary Proceedings) Regulations, 1971 (L.I. 688). Without attempting an exegesis of the sections of the substantive Act I shall summarize portions relevant to this application as follows:

(1) Penalties which are designated major, involve dismissal, removal and reduction in rank. Section 18 (2) of Act 350.

(2) Disciplinary proceedings for misconduct shall be summary or formal. Section 20 (1).

(3) Major penalties shall not be imposed on a pensionable officer in summary proceedings not arising out of a conviction. Section 20(2).

(4) Whether proceedings are summary or formal a written charge is to be preferred. Section 20 (3) (a).

(5) A penalty can be appealed against within six weeks of its imposition and “such penalty shall not take effect until the appeal is determined.” Section 20 (3) (d).

(6) Authority to deal with disciplinary matters may be delegated to the police council, or a committee thereof or to any member thereof. Section 19 (2).

(7) Where powers are delegated to the Inspector-General of Police, he may be authorised to exercise those powers through a disciplinary board or a superior police officer authorised by him in writing.

Section 19 (3).

(8) Only the Inspector-General of Police may impose a major penalty. Any other body must refer the matter to the Inspector-General of Police for him to exact the penalty. Section 19 (5).

Turning again to the facts, the applicant was indeed convicted, consequently section 20 (2) of Act 350 conceives of the inquiry being summary in nature. Even so a written charge should have been preferred as

[p.302] of [1973] 2 GLR 299

provided by section 20 (3) (a) aforementioned. The Police Service (Disciplinary Proceedings)

Regulations, 1971 (L.I. 688), reg. 4 (2) defines summary proceedings as “a simple procedure in which the details and brief record are contained in a police disciplinary report form, and evidence shall not be recorded in writing nor shall it be on oath.” This regulation indeed postulates the giving of evidence though not written nor on oath. Regulation 6 (1) of L.I. 688 also requires a written charge to be preferred and served on the defendant “not less than twenty-four hours before the hearing of summary proceedings” but three days in the case of formal proceedings.

Assuming that the issue is a summary one, which is my view, no valid inquiry could have taken place on 14 June, because the statutory period of grace, that is 24 hours, had not elapsed. On this score alone the decision on 14 June is ultra vires, illegal and altogether null and void. Moreover regulation 7 (2) of L.I. 688 allows a defendant before a disciplinary committee to plead for an extension of time within which to put forth any explanations; and regulation 9 (2) of L.I. 688 requires the disciplinary authority to give a defendant “adequate time and facilities for the preparation of his defence.” Regulation 9 (3) places a caveat on proceedings taking place in the absence of the defendant except in certain extreme cases. In all these cases some time lapse is anticipated.

I am satisfied that no opportunity was given the applicant to avail himself of these rights. The respondent’s affidavit is suspiciously silent on very vital matters in issue. Paragraph (12) of the applicant’s affidavit impugns the procedure the respondent adopted herein, yet the respondent made no attempt to show that the statutory requirements laid out in regulation 10 of L.I. 688 had been complied with. Indeed from the applicant’s affidavit it appears that he was not served with a notice of hearing for his appearance at any inquiry. All he was served with was a notice of dismissal, exhibit A. Here is a clear breach of regulations which had been fashioned to ensure natural justice.

In Byrne v. Kinematograph Renters Society, Ltd. [1958] 2 All E.R. 579 at p. 599 Harman J. expressed his view on the requirements of natural justice as follows:

“What, then, are the requirements of natural justice in a case of this kind? Firstly, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith.”

These requirements were expressly approved by the Privy Council in University of Ceylon v. Fernando [1960] 1 All E.R. 631 at p. 638, P.C.

It is urged here that in each of these areas natural justice was denied the applicant. This cannot be controverted on the facts. The only quaere is that the courts should not be too ready to import into statutory enactments deficiencies in the provision of natural justice. As was said by Lord Reid in Wiseman v. Borneman [1969] 3 All ER. 275 at p. 277, H.L.:

[p.303] of [1973] 2 GLR 299

“Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances . . . For a long time the courts have . . . supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.”

In my view there are enough safeguards entrenched in Act 350 to ensure natural justice without calling in aid the court’s unusual powers. 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.” On the true construction of section 20 (3) (d) no penalty could take effect before the expiration of six weeks when the time to appeal would have lapsed. I hold this view because the provision for appealing remains open for a period of six weeks; consequently it is only when the right of appeal has not been exercised after the full term, that the penalty can operate. It is unwarrantable therefore to hold, as exhibit A purports to do, that the applicant’s expulsion dates from 13 June 1972, that is, the date of the conviction.

Finally there is the issue of delegation of authority. There is nothing to a show that the Inspector-General of Police delegated his powers to the Central Disciplinary Board in writing. On the respondent’s own showing the penalty was inflicted by the aforesaid disciplinary board and not by the Inspector-General of Police as required by section 19 (5) of Act 350. There is nothing to show either that the Inspector-General of Police was satisfied before the grave step of dismissing an officer from the service was implemented. The respondent would urge the court that the Inspector-General of Police was not only satisfied with the conviction of the applicant but also summoned the police disciplinary board to dish out dismissal orders in the space of 24 hours. Even a certified copy of a conviction cannot be obtained with such despatch. The “satisfaction” of the Inspector-General of Police must rest on solid legal foundations-a certificate of conviction being an essential pillar.

The point has long been reached where the widest possible administrative powers conferred by statute cannot by themselves exclude judicial control nor confer immunity from the court’s scrutiny. An administrator’s unfettered discretion is now a thing of the past: see Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997, H.L. Nor can it be urged with any degree of optimism that the mere fact of a conviction for assault is so damnable an event that no explanation can be offered in exculpation; especially where an appeal was pending.

In my view this application cannot be resisted in any guise or form or with any degree of success. I shall consequently grant the application

[p.304] of [1973] 2 GLR 299

sought. I order the dismissal notice of the Central Disciplinary Board of 14 June 1972 to be brought to this court for the purpose of being quashed and I order the same to be quashed.

DECISION

Application granted.

S.E.K.