REPUBLIC vs. INSPECTOR-GENERAL OF POLICE; EX PARTE WOOD [1973] 2 GLR 113

CASE REFERRED TO

Barnard v. National Dock Labour Board [1953] 2 Q.B. 18; [1953] 1 All E.R. 1113; 97 S.J. 331; [1953] 1 Lloyd’s Rep. 371, C.A.

NATURE OF PROCEEDINGS

APPLICATION for an order of certiorari to quash the decision of the Inspector-General of Police which resulted in the dismissal of the applicant, a police inspector, from the Ghana Police Service. The facts are sufficiently set out in the ruling.

COUNSEL

W. A. H. Amarteifio for the appellant.

T. Ahlijah, Senior State Attorney, for the respondent.

JUDGMENT OF EDUSEI J.

This is an application by Mr. K. A. Wood, an inspector grade II of the Ghana Police Service, praying for an order to quash the decision which resulted in his removal from the Ghana Police Service.

His counsel stated four grounds upon which he relied for this application but the most important ground is set out in paragraph 3 (d) of his application as follows: “That the proceedings are a nullity since the adjudicating officer, the said I. Kwakye, Esq., had no jurisdiction to sit over the matter.”

On 18 September 1972 the Western Regional Police Disciplinary Board by a letter No. WRB/FF.KAW/46 appointed Mr. Isaac Kwakye, Superintendent of Police, as the inquiring officer and indicated in that same letter the charges to be preferred against Inspector K. A. Wood. Acting on this letter, Mr. Isaac Kwakye wrote letter No.TD/FF/KAW/72 dated 21 September 1972 to Inspector Wood, and the opening sentence is relevant to this application. It stated: “I have to inform you that I have been nominated by the Sekondi Divisional Disciplinary Board to hold service inquiry into the undermentioned charges preferred against you ¼” and then followed the three charges of alleged misconduct which need not be set out in extenso.

The proceedings which have been attached to the instant application clearly show that the said Mr. Kwakye conducted the inquiry into the charges preferred against Inspector Wood and later submitted his report to the Western Regional Disciplinary Board who recommended to the Inspector-General of Police a reduction in rank to general sergeant. The Inspector-General of Police by his letter No. PNC.1404/190 dated 8 December 1972, and acting in accordance with section 19 (2) of the Police Service Act, 1970 (Act 350), imposed on Inspector Wood a sentence of removal from the service with full retiring benefits.

[p.115] of [1973] 2 GLR 113

The important point that falls for determination in this application is whether Mr. Isaac Kwakye, the inquiring officer, who was nominated by the Western Regional Disciplinary Board, was clothed with jurisdiction to conduct the inquiry. It has been urged on behalf of the applicant that there are three categories of disciplinary authorities set out in regulation 3 of the Police Service (Disciplinary Proceedings) Regulations 1971 (L.I. 688), and they are:

(a) the Central Board,

(b) a Regional Board and

(c) all the superior police officers.

Again section 19 (4) of the Police Service Act, 1970, stipulates as follows:

“Any person or body in whom disciplinary powers under this Act are for the time being vested, and any disciplinary board or superior police officer duly authorised under subsection (3), shall be a disciplinary authority for the purposes of this Act.”

It is not in dispute that Mr. Kwakye comes under (c), but then comes the all-important question: who is the appointing authority of the superior officer? The answer to this question is found in section 19 (3) of the Police Service Act, 1970 (Act 350), which states thus:

“Where the President delegates powers under subsection (2) of this section to the Inspector-General of Police he may authorise the Inspector-General of Police to exercise all or any of the said powers through a disciplinary board or superior police officer authorised by the Inspector-General of Police for that purpose in writing.”

(The emphasis is mine.) The Inspector-General of Police in his letter removing the applicant from the service stated:

“By virtue of the power delegated to me under section 19 (2) of the Police Service Act, 1970 (Act 350), I

have imposed on you a sentence of removal from the service with full retiring benefits . . .”

It is quite evident therefore that the only competent appointing authority in so far as a superior police officer becomes the inquiring officer is the Inspector-General of Police and this must be done in writing. But Mr. Isaac Kwakye, the superior police officer who was the inquiring officer in this case, was not appointed by the Inspector-General of Police but by the Western Regional Disciplinary Board which is bereft of such power. The disciplinary powers of the disciplinary authorities are clear-cut and free from ambiguity. The Western Regional Disciplinary Board had no power, express or implied, to delegate its powers to Mr. Isaac Kwakye. Delegatus non protest delegare. Thus in the case of Barnard v. National Dock Labour Board [1953] 2 Q.B. 18, C.A. the right of a delegate to delegate his functions was discussed. By the

[p.116] of [1973] 2 GLR 113

Dock Workers (Regulation of Employment) Order, 1947 (S.R. & O. 1947, No. 1189), the defendants, the National Dock Labour Board, were required to delegate to local boards certain disciplinary functions. The London Dock Labour Board — a local board — purported to delegate those disciplinary functions to the port manager, who suspended the plaintiffs, registered dock workers, from work and pay. It was held inter alia that the local board had no power express or implied, to delegate its functions to the port manager or to ratify his purported exercise of those functions, and the original notices of suspension were therefore a nullity and the decisions of the appeal tribunal based on them were equally a nullity. Singleton L.J. in his judgment at p. 34 had this to say on the point of delegation of powers:

“In view of the scheme, or the order, as a whole, I fail to see that the local board had any power to delegate their disciplinary duties under clause 16, and I do not think the authorities referred to in the judgment of McNair J. support the submission made on behalf of the defendants that the local board had power to delegate the duties given by clause 16 (2). It follows that the port manager had no right to suspend the men, or to issue suspension notices; there was no order of the local board.”

There is no dispute that having regard to the Police Service Act, 1970, and the Police Service (Disciplinary Proceedings) Regulations, 1971, the only person who could appoint a senior police officer to perform this judicial or quasi-judicial function is the Inspector-General of Police and not a Regional Police Board. It is axiomatic that Mr. Kwakye, the senior police officer, who conducted the inquiry was not in the circumstances clothed with jurisdiction. Whatever he did was a nullity. Mr. Kwakye, the police inquiring officer, may permit me to say that he is a usurper, or at least, in the position of a usurper. I do not mean this unkindly nor do I attribute to him any evil motive or intention because I know that he acted in good faith on the authority of the Western Regional Disciplinary Board; be that as it may, he assumed a mantle which was not his, but that of another. This is not a case of a tribunal which had jurisdiction and exercised it; it is the case of a senior police officer acting as a tribunal when he has no right to do so in the circumstances. The decision of the Inspector-General of Police based on the findings of Mr. Kwakye must also fall to the ground, for a decision cannot be founded on something which in itself is a nullity. The purported decision of the Inspector-General of Police may seemingly appear to mean that he has ratified the proceedings of Mr. Kwakye but this cannot be for the effect of ratification is to make it equal to a prior command ; but first as a prior command in the shape of a delegation by the Western Regional Disciplinary Board would be useless, so also is a ratification.

[p.117] of [1973] 2 GLR 113

In the result the application succeeds and I order that the decision of the Inspector-General of Police given on 8 December 1972 be brought up into this court to be quashed. Costs of this application are assessed at ¢100.00 against the Ghana Police Service.

DECISION

Order accordingly.

S.Y.B.-B.