SARPONG vs. UNIVERSITY OF SCIENCE AND TECHNOLOGY AND ANOTHER [1999-2000] 1 GLR 585

CASES REFERRED TO

(1) Vine v National Dock Labour Board [1956] 1 QB 658; [1956] 2 WLR 311, [1956] 3 All ER 939 CA.

(2) People v Gates, 41 CA 3d 590.

[p.587] of [1999-2000] 1 GLR 585

(3) Southern Worcester County Regional Vocational School District v Labour Relations Commission, 436 NE 2d 380; 386 Mass 414 (1982).

(4) Universal Camera Corp v National Labour Relations Board, 340 US 474; 71 Sct 456; 95 L Ed 456 (1951).

(5) Lisbon v Contribution Retirement Appeal Board, 670 NE 2d 391; 41 Mass App Ct 246 (1996).

(6) Sasu v White Cross Insurance Co Ltd [1960] GLR 4, CA.

(7) Nkaeguo v Konadu [1974] 2 GLR 150.

(8) Johnson (Decd), In re; Donkor v Prempeh [1975] 2 GLR 182.

(9) Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680; [1948] LJR 190, CA.

(10) W (An Infant), Re [1971] AC 682; [1971] 2 WLR 1011; [1971] 2 All ER 49, SC. (11) Nell v Longbottom [1894] 1 QB 767: 10 LTR 344, DC.

(12) Kelieher v Personnel Administrator of Department of Personnel Administration, 421 Mass 382 (1995).

(13) Bielawski v Personnel Administrator of Division of Personnel Administrator, 422 Mass 459 (1996).

(14) City of Cambridge v Civil Service Commission, 43 Mass App Ct 300 (1997).

(15) Share v Wakefield [1891] 1 AC 173.

NATURE OF PROCEEDINGS

ACTION by the plaintiff, an applicant for consideration for appointment to the position of Vice-Chancellor of the University of Science and Technology, Kumasi before the High Court, Kumasi against the university and the university council for, inter alia, a declaration that the university council was bound to accept and endorse without voting, the report of the search committee appointed by the university council to short-list three of the candidates and which had adjudged him the best candidate. The facts are fully set out in the judgment.

COUNSEL

Yaw Attakora Amoo for the plaintiff.

Pobee for the defendants.

[p.588] of [1999-2000] 1 GLR 585

JUDGMENT OF QUAYE J.

This action is a fall-out from the 158 special meeting of the University Council, the second defendant herein, which is by statutory provision, the governing body of the first defendant university. The plaintiff herein is a professor of French, has been dean of the Faculty of Social Sciences, since 1984, head of the Department of Languages and lecturer, an employee of the first defendant university. He has been a full professor since 1993, and a member of the governing council of the first defendant university since the 1988-89 academic year.

In this action, the plaintiff endorsed his writ with the following reliefs:

“(1) Declaration that the university council of the University of Science and Technology and the University of Science and Technology in exercise of its power under article 195(3) of the Constitution, 1992 to appoint a vice-chancellor is duty bound to follow its own earlier resolution adopted at the 157 meeting of the university council to follow the procedure adopted for the appointment of the former vice-chancellor in 1993 by accepting and endorsing without voting the report of the council search party dated 5 June 1998 which search party the university council itself lawfully appointed.

(2) An order compelling the defendants to follow and be bound by the already established precedent and convention for the appointment of a vice-chancellor for the University of Science and Technology.

(3) Injunction restraining the defendants, their servants, agents and person(s) acting through by or in trust for them from acting in any manner contrary to or prejudicial to the interest of the plaintiff in the course of the selection and appointment of the vice chancellor for the University of Science and Technology and against the intendment of reliefs (1) and (2) above.

(4) Such further order or orders as this honourable court may deem fit and in terms of Order 63 of the High Court (Civil Procedure) Rules, 1954 (LN 140A).”

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The fact that emerge from this action are that in October 1997 the second defendant, hereinafter referred to as the council, at its 155 meeting passed its resolution 857, by which it refused to renew the appointment of the then incumbent vice-chancellor of the first defendant university (hereinafter referred to as the university). In consequence of the said resolution, advertisements were posted at the university campus and also published in the Daily Graphic newspaper on or about 10 December 1997 inviting interested and qualified persons to apply. Exhibit 1 tendered in the proceedings, is one of such advertisements, and is hereby reproduced:

“UNIVERSITY OF SCIENCE AND TECHNOLOGY REGISTRAR’S DEPARTMENT APPOINTMENT OF VICE-CHANCELLOR The Council of the University of Science and Technology, Kumasi, has taken congnisance of a vacancy in the position of Vice-Chancellor in the University.

‘The Constitution of the Republic of Ghana provides in Article 95(3) for the appointment of Vice-Chancellor as follows:

‘The power to appoint persons to hold or act in an office in a body of higher education, research or professional training shall vest in the council or other governing body of that institution or body.’ Applications are therefore invited from suitable candidates who wish to be considered for appointment to the position of Vice-Chancellor in the University of Science and Technology Kumasi. THE POST:

The Vice-Chancellor is the academic and administrative head and the disciplinary officer of the University with general responsibility for maintaining and promoting efficiency effectiveness and good order of the University. He will play a key strategic role in positioning the University, so that it is able to further its strengths and capitalise on its opportunities.

THE PERSON:

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The post requires a mature and distinguished academic with extensive senior management experience in a University/Research or similar international institution/organisation.

Applicants must have established and proven track record of leadership, able to meet the challenges of a growing dynamic academic environment. They must be capable of communicating with staff, students and the community at all levels and have the ability to represent the University at the highest level of government and the business community.

They must be Ghanaians and young enough to be able to hold office for a minimum of four (4) years from the date of appointment before retirement, in accordance with the conditions of service of the University.

TERMS OF APPOINTMENT:

The appointment will be for four (4) years in the first instance and it will be subject to renewal. Salary and fringe benefits attached to the post are very attractive.

APPLICATIONS:

Candidates are to submit the following:

(a) An application letter (b) Curriculum vitae, including the names and addresses of at least three referees (who should be requested to forward their confidential reports direct to the Chairman of the Search Committee by 15 December 1997 (c) A brief statement (not more than two pages) of their perception of a University and their role as Vice-Chancellor; they should show clearly how the University should be developed and managed and how and where resources could be mobilised.

Applications, under confidential cover, should be lodged with the address below by 15 December, 1997.

The Chairman, Search Committee C/o The Registrar, University of Science and Technology,

[p.591] of [1999-2000] 1 GLR 585 Kumasi, Ghana Nana Osei Bonsu II REGISTRAR/SECRETARY TO COUNCIL.”

The search committee to which the candidates were directed to submit their applications was set up by the council at its 157 meeting held on 17 April 1998: see exhibit A. It was apparent that the decision to act through a search committee had been taken at the 156 meeting but the appointment thereof was deferred pending a proposed investigation of lapses in the administration of the university. After the above decision had been reviewed at the 157 meeting, council:

“agreed that the procedure adopted for the appointment of the former Vice Chancellor in 1992 should be followed Y. It was however pointed out that unlike the 1992 practice, council was not vested with the constitutional authority to appointed the[sic](1) vice-chancellor and not the government.” Another significant decision of council at the 157 meeting was in respect of the tenure of office of the vice-chancellor. The decision was that the tenure:

“should be five years, in line with the University of Science and Technology practice and not four years as initially advertised in the newspapers by the registrar. Council agreed that if it became necessary, the appropriate decision would be taken on applicants who may be adversely affected by the above change.”

Council thereafter proceeded to appoint the members of the search committee to short-list candidates for appointment as vice-chancellor and complete their assignment and submit a report to the council by the end of May 1998. By letters dated on 24 April 1998 the registrar-secretary to council wrote to Rev Prof K A Dickson; Prof J Owusu-Addow; Mr Ohene Manu, Mr K A Pabbi, Mr Saani and Mr Kwame Berko, informing them of their appointment by council at its 157 meeting as members of the search committee for the appointment of a vice-chancellor for the university, to succeed Prof E H Amonoo-Neizer. The said letter was tendered as exhibit D.

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The next correspondence in the build-up to the appointment of a vice-chancellor in so far as the search committee was involved was a letter from the registrar to the chairman and members of the search committee dated 21 May 1998. Paragraph (3) of the said correspondence indicated that certain materials were being supplied to the committee in documentary form. They comprised “photocopies of the advertisement and an extract from the 141 (special) meeting of the university council held on 14 February 1992, setting out the important attributes required of a vice-chancellor. The advertisement has been reproduced supra. The extract from the minutes of the 141 (special) meeting of the council held on 14 February 1992 contained as item 2, the modalities for selecting a vice-chancellor. These were set down as follow as:

“(1) Intellectual Stature:

A Vice-Chancellor must possess considerable intellectual stature. He must be internationally acceptable and capable of actively promoting and enhancing knowledge and research and in our particular case apply his endeavours in solving some of our myriad problems.

(2) Power of analysis:

He must possess considerable power of analysis, ie he must be capable of breaking down complex and difficult problems into small and manageable bricks so as to make it easy to applying the mind to finding solutions.

(3) Sense of helicopters:

He must be able to rise above the rather mundane hustle and bustle of activities and be able to calmly survey the myriad problems on the ground and determine what the main issues are so that all available resources can be applied.

(4) Realism:

He must be realistic enough to discern between the wheat and the chaff; he must be able to discern fantasy from the achievable and must not leave himself floating in the clouds oblivious of the harsh realities of the times (i.e ivory tower Mentality)

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(5) Leadership:

He must possess a good deal of leadership qualities. He should be able to direct, motivate and enjoy the absolute confidence of his peers and subordinates. He must not be seen to forster factionalism and favouritism. He must accept responsibility for the actions of all his subordinates and any blame of inadequacies. To this end he must be capable of delegating and allowing his subordinates to get on with the tasks allocated to them. He must however be capable of instituting adequate controls and internal checks to keep him informed of major issues so that prompt corrective action could be taken when necessary.

(6) Moral rectitude:

He must have an exemplary character and moral rectitude. Any doubt about his integrity and morality is bound to reflect on the respect his peers and subordinates have for him. He must be scrupulously fair, straight and impartial in his dealings with colleagues and subordinates alike.”

The next major stage in the build up to selecting a candidate for appointment as vice-chancellor for the university was the inauguration of the search party which came off on 3 June 1998. It is worthy of note that this even took place after the expressed date for the search committee to present its report as decided at the 157 meeting had elapsed. At the said inauguration, the chairman of council made very important and revealing statements which are worth reproducing. He said, inter alia:

“What we are witnessing this morning is an innovation. In the past the university council itself did the search and identified the most suitable scholar for appointment by the government.

On 14 February 1992 the university council in its wisdom decided to appoint a search committee to perform the duty of short-listing of the applicants. At that time the five-member committee was composed of three council members and two outsiders with a member of council as the chairperson.

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This time the committee consists of only two council members with an outsider as the chairman. It is also worthy of note that the former search committee included two serving senior members of staff while the present one has only one serving member of staff of the university.

This is all designed to make this exercise less prone to possible bias arising out of familiarity . . . “

The chairman of council then proceeded to repeat what he termed as modalities for selecting a vice-chancellor as extracted from the 141 special meeting of council on 14 February 1992. Having exhausted the list, the chairman of council then added “…. you are to short-list three candidates in order of merit and submit your report to council under strictest confidence.”

The search committee which was inaugurated on 3 June 1998 was required primarily and specifically,

(i) to short-list and interview candidates who had applied for the post of vice-chancellor (in response to the registrar’s advertisement)

(ii) to further short-list three candidates and submit same and the relevant documents to the council, University of Science and Technology for consideration.

The plaintiff was one of six candidates who applied for the interview. Their applications were handed over to the search committee by the registrar. The applicants were in alphabetical order: Professor Kwasi A Andam; Professor John S K Ayim; Rev Dr J E Baidoo; Professor Albert Owusu-Sarpong; Professor A K Tuah; and Professor Dr Dr G Wireko-Brobby. The plaintiff attended an interview before the search committee. After the search committee had completed its assignment, it submitted its report to the chairman of the council under a cover-letter dated on 5 June 1998.

A special meeting of council, the 158 meeting, was convened on 3 August 1998 and its main agenda item was the “appointment of vice-chancellor.” It was at this 158 special meeting of the council that the report of the search committee, 1998 was presented to members to enable the council exercise its constitutional duty of appointing a vice-chancellor. The chairman of the search committee was invited to the council meeting and after he had formally presented the report, he was subjected to questioning by members of

[p.595] of [1999-2000] 1 GLR 585 council. After that the chairman of the search Committee took his leave so as to make way for council to exclusively consider the report and make the appointment. In order to facilitate meaningful deliberation, members of council were provided with copies of the search committee report and the meeting recessed for a few minutes to enable members study it. When council reconvened, the report was accepted as a working document upon a motion. Deliberations at the meting were however halted and the attempt to appoint a vice-chancellor aborted, when sharp differences arose among members as to the effect of the report of the council search committee on the council. The real issue was over what was to do with the report; whether it was binding on council to adopt and implement its recommendation by appointing the candidate identified by the committee as the first on merit, or whether council had a legal right to arrive at its own decision and appoint anyone of the three short-listed candidates after it had independently considered the recommendations of the search committee. Council eventually decided to resolve the matter by a vote whereupon some of the members staged a walk out to demonstrate their dissatisfaction with the procedure.

It was this stalemated situation in council’s effort to appoint a vice-chancellor at its 158 special meeting of 31 August 1998 which occasioned the herein action. The plaintiff contends that the council in deciding to resort to voting in order to arrive on a candidate for appointment as vice-chancellor was not being ‘fair’, impartial and without any unsavoury influence whether political, tribal or on friendship.” In order to better appropriate the contention of the plaintiff, a few relevant paragraphs of his statement of claim are hereby reproduced:

“(12) The plaintiff states that the search party of 1992 submitted its report.

(13) In the said report the search party enumerated the criteria used in its assessment of the candidate and marks awarded each candidate and recommended the three to candidate in order of merit to the university.

(14) When the search party of 1992 presented its report, a member of the university council raised the question that there should be secret ballot by members of the

[p.596] of [1999-2000] 1 GLR 585 council to select one of the top candidates and then recommend the one so voted to the Provisional National Defence Council Government but the council rejected balloting and Professor R H Amonoo-Neizer who scored the highest marks was appointed by the Government as the Vice-Chancellor.

(15) At the 157 meeting of the university council it was agreed that the procedure adopted for the former vice-chancellor in 1992 should be followed and the details of the said procedure were furnished to the members at the 156 meeting. The said procedure crystallised into precedent and convention.

(16) The only difference between the 1992, procedure and the present procedure to be followed is that unlike the 1992 practice, council was now vested with constitutional authority under article 195(3) of the Ghana Constitution, 1992 to appoint the vice-chancellor and not government.

(17) The plaintiff states that all the members of the present council had been furnished with the necessary minutes and documents pertaining to the procedure that was followed in 1992 and the members were aware that the first on the merit as found by the search party is confirmed without any voting by the council.

(19) That when on 3 June 1998, the chairman of the University Council, Agyewod in Prof Adu Gyamfi Ampem inaugurated the search committee he reiterated the binding decision of the council that the council would follow the procedure adopted in the appointment of Prof E H Amonoo-Neizer as vice-chancellor in 1992 with the council appointing and not the government.

(20) The plaintiff states that he was one of the six candidates who were considered by the search party and he was interviewed by the search party.”

At the 158 meeting of council the report of the search committee was presented and the plaintiff was placed first on the merit of all the candidates who applied for appointment and appeared before the search committee. It is his case that following the precedent laid by

[p.597] of [1999-2000] 1 GLR 585 the council in 1992, he, being adjudged first on merit, ought to be appointed vice-chancellor by the council without more ado. The plaintiff is therefore distraught that the council decided at its 158 meeting to resort to the vote to determine which of the three short-listed candidates should win its choice.

Besides the above, the plaintiff is confounded the more upon the fact that the two other short-listed candidates are legally disqualified on grounds of age. He argues that both of the other two candidates are more than 55 years old and therefore not eligible for appointment, all other circumstances being equal. This point has been justified by reference to the tenure of office of the vice-chancellor as determined by council at the 157 meeting. At the said meeting, council noted the tenure as published in the advertisement for the post in the newspapers and concluded that an error had been committed. Accordingly, council purported to correct the mistake by deciding that the tenure of the vice-chancellor is five years and not four years as previously advertised. According to the plaintiff, by reason of age, both Professor Ayim and Professor Dr Dr Wireko-Brobby cannot offer themselves for appointment by the council as vice-chancellor. This point was buttressed by reference to an earlier decision better known as resolution 666 of the 86 meeting held on 2 November 1979. The plaintiff concludes by alleging want of fairness and reasonableness in the council in the conduct of its duty.

The defendants in their response have joined issues with the plaintiff on his claim. It is claimed by the defendants that the council had a procedure for the appointment of a vice-chancellor and on 14 February 1992, adopted the procedure of appointing a search party which was only one step in the process of appointing a vice-chancellor. The search party was given specific and limited powers to short-list the candidates and report to the council. It had no power to appoint a vice-chancellor and even so, the power to appoint was vested in the Provisional National Defence Council Government. Specifically, the defendants contend that the search party of 1992 was neither requested to discuss and draw up modalities for selecting candidates for the post of vice-chancellor nor to short-list the candidates in order of merit. On the issue alleging a decision of council not to resort to voting to choose one of the three short-listed candidates, the defendants have proffered their version which is in total denial of the claim by the plaintiff that the council at the 143

[p.598] of [1999-2000] 1 GLR 585 meeting decided against voting. They contend that the issue was not raised and therefore no such a matter came up and was rejected by council. Instead council merely resolved after deliberating on the report of the search party to forward the name of the first two candidates as listed in order of merit to the government, the Provisional National Defence Council, who were at the material time the appointing authority, and no one knows the criteria or consideration which informed the government’s choice and appointment of Prof E H Amonoo-Neizer.

While admitting that the 157 council meeting held on 17 April 1998 agreed to follow the procedure that was used in 1992, what was envisaged at the 157 meeting was limited to the appointment of a search committee to interview applicants and submit a report for council’s consideration. In order to underscore this fact, the resulting search committee of 1998 did not measure in every detail with the search party of 1992. The difference did not only reflect in the name adopted but affected other aspects including the number of persons appointed to serve on it. Another difference appeared in the specific terms of reference. The 1992 search party was not asked to short-list three candidates in order of merit and submit its report under the strictest confidence. The defendants deny the existence of a precedent and convention which mandated council to appoint as vice-chancellor the applicant who was considered by the search committee in their report as first on the merit. At the 158 meeting on 31 August 1998 the chairman of the search committee formally submitted the report of the committee, briefed the council on the search committee’s proceedings and disclosed that in their assessment of the applicants there had been a tie between the two top candidates and the committee had mandated the chairman to use a casting vote to resolve the deadlock. It was inconsequence of the resort to a casting vote that the plaintiff emerged first. In view of this fact, the defendants seriously contest the claim that the plaintiff was first on the merit, asserting in the process that the search committee lacked mandate to resort to a casting vote.

Furthermore, the defendants rely upon the Constitution, 1992 to say that the power to appoint a vice-chancellor is vested in the council and cannot be delegated otherwise. It is only the council that has discretion in the matter, and in the exercise of this discretion it can discuss the report of the search committee and reserve to itself

[p.599] of [1999-2000] 1 GLR 585 the power to reject the report. It was upon the exercise of such right that the council on 31 August 1998 accepted the report of the search committee as a basic working document for discussion. In the process, various views were expressed and the report was criticised for inadequacy. This was the forerunner of the proposal that a vote be taken on the three short-listed candidates, which in its turn occasioned the walk-out. Voting per se is not ruled out by any law. On the contrary the enabling statute grants voting rights to council where found necessary. Any precedent or convention which sought to clog council’s legal rights is unlawful.

On the question of the age relative to the tenure of an incumbent and his eligibility to hold or continue to hold the office of vice-chancellor, it is the case of the defendants that the council reserved the right to make appropriate decisions if or when the situation arose. Lastly, the defendants challenge the jurisdiction of this court to entertain and grant claims (1) and (2) of the plaintiff saying in addition that the plaintiff has no cause of action in respect of the said reliefs.

At the close of pleadings the issues that were set down for trial were:

(1) Whether or not there had been established a precedent by appointment of search party to the effect that the report of the search party submitted to the university council was automatically endorsed in appointment of officers in the university.

(2) Whether or not in exercise of its power of appointment under the Constitution, 1992 and the University of Science and Technology, Kumasi Act, 1961 (Act 80) as amended, the university council could vote on the accepted report of the search party it appointed.

(3) Whether or not the chairman of the search party was entitled to a casting vote.

(4) Whether or not the plaintiff was first on merit…”

The above are the main issues upon which findings of fact must be made by this court to determine the reliefs indorsed on the writ. Both counsel in their effort to win the courts decision have gone to great lengths, underscored by intensive research, to put across certain

[p.600] of [1999-2000] 1 GLR 585 legal submissions for guidance. I will begin with the plaintiff, to note these submissions.

Counsel for the plaintiff, Mr Yaw Attakora Amoo, after reviewing the evidence led at the hearing submitted that: council has a constitutional duty to appoint a vice-chancellor. However, the exercise by council of this power is subject to articles 23 and 296 of the Constitution, 1992 and also to other legislation or statutes in so far as those statutes do not conflict with any provisions in the Constitution, 1992. He cited some of those previously existing laws to be the University of Science and Technology, Kumasi Act 1961 (Act 80) as amended by the University of Science and Technology, Kumasi (Amendment) Law, 1990 (PNDCL 240) and resolution 666 of the council.

Mr Amoo submitted that where council had agreed to follow an earlier precedent and convention in the appointment of a vice-chancellor and had set in motion a machinery which is declared to be an improvement upon a previous one, then it would constitute a breach of the constitutional provisions for council to hide behind the concept of absolute discretion to change that procedure mid-stream, on grounds that council disagrees with the report. In response to the submission above, Mr Pobee, counsel for the defendants, agreed that the power to be exercised by the council is administrative.

The various legislative provisions would assist to portray and convey the position of the council and the scope of the powers that it is excepted to exercise. We embark on our journey in this exercise by going to the very beginning, the law that created the university. It is Act 80. The said Act set up, or brought into being, the university as a legal entity, a body corporate with perpetual succession and a common seal. Under Act 80, the principal officers of the university were named to be the chancellor, chairman of the University council and the vice-chancellor. The President of Ghana was to be the chancellor and head of the university, and he had the jurisdiction of appointing the chairman of the council. With respect to the position of the vice-chancellor, Act 80 provided that he shall be appointed by the council upon prior approval by the chancellor (the President). The bodies that constituted the membership of the council were set down in section 7 of Act 80, while its powers were provided for in section 10 of Act 80. It was provided by section 10 of Act 80 that:

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“10. Subject to the provisions of this Act, the University Council shall have power to do or provide for any act or thing in relation to the University which it considers necessary or expedient in its capacity as the governing body and the conferring of particular powers on the Council by other provisions of this Act shall not be taken to limit the generality of this section.”

We shall in due course revisit this provision. This law, Act 80, continued to hold sway in its entirety until the University of Science and Technology, Kumasi (Amendment) Law, 1990 (PNDCL 240) was passed in 1990 to amend portions thereof. The sections so amended were those that deal with the chancellor—section 4: the chairman of the university council—section 5: the vice chancellor—section 6: the university council—section 7: and the Schedule. Since there were specific issues that arise in this action, I shall limit my consideration of the amendment and refer only to those that are immediately relevant to the issues herein. PNDCL 240 replaced the President with the Head of State as chancellor, and vested the appointment of the chairman of the council in the Provisional National Defence Council. Furthermore, the new Law amended section 6 of Act 80 by making the Provisional National Defence Council the appointing authority of the vice-chancellor. This appointment was to be made upon recommendation of the university council. It was by virtue of this provision under PNDCL 240 that the university council in 1992, as we shall shortly come to observe, forwarded the names of two persons that had previously been short-listed by the search party, to the Provisional National Defence Council Government to appoint a vice-chancellor. This was so because at the material time, the operative law was PNDCL 240. The Constitution, 1992 did not come into force until January 1993. The Constitution, 1992 by article 195 (3) directly vested the power to appoint persons to hold or act in an office in a body of higher education, research or professional training, in the council or governing body of that institution. Upon well traversed legal processes, the constitutional provision automatically repeated PNDCL 240 since the provisions of the latter were inconsistent with the Constitution, 1992. The effect of this is that the power to appoint a vice-chancellor is now exclusive to the council, because the University of Science

[p.602] of [1999-2000] 1 GLR 585 and Technology, Kumasi in terms of section 2 of Act 80 falls under the description “a body of higher education, research or professional training.” It is therefore not really surprising that both parties in the instant case concede to the council the power to appoint a vice-chancellor.

The issue canvassed herein, however, does not permit of such simplistic conclusion. Mr. Amoo contends that the exercise of the power by the council is subject to regulation 666 of the council, articles 23, 296 and 295(8) of the Constitution, 1992 and also to Act 80. Since this court has no jurisdiction to interpret constitutional provisions, I will refrain from specifically doing so, for the above reason and secondly, because it is my candid view that the determination of the issues herein does not really make such an exercise necessary. He submitted that the university council’s resolution 666 at its 86 meeting of 2 November 1979 is also pertinent as it regulates the appointment of heads of department who had reached the retiring age. With respect to the operation of Act 80, counsel cited section 10 thereof and reiterated that in so far as these laws are not inconsistent with the provisions of the Constitution, 1992 they are valid. He said section 10 of Act 80 has constitutional backing in article 297 (c) of the Constitution, 1992. Resolution 666 states:

“That unless it was absolutely necessary, no one who had reached the retiring age and had been re-engaged on a contract of a year’s duration should hold a position of headship of a Department or Faculty in the University. Should it become necessary for this regulation to be set aside, prior approval of Council should be sought.”

Section 10 of Act 80 has been quoted supra.

It is my considered view that deeds and documents ought to be interpreted in accordance with the well-known tenets or rules of construction. Resolution 666 is very clear in its scope. It concerns or is targeted at specifically identified office or office holders. The headship of a department or faculty in the university is not the same thing as the office of a vice-chancellor. To put this another way, the vice-chancellor is neither a head of department or faculty. The applicable maxim of law that falls relevant here is expressio unius est exclusion alterus: the expression of one person or thing, implies the

[p.603] of [1999-2000] 1 GLR 585 exclusion of other persons or things not mentioned, and this would lead me to conclude that the said resolution 666 was not intended to affect or apply to the position of vice-chancellor. I draw this conclusion upon the foreknowledge that the council had invoked it, rightly or wrongly, at its 155 meeting of 24 October 1997. I incline to the view taken by Mr Pobee that upon a literal reading of resolution 666 it is clear that it is not applicable to the person or position of vice-chancellor.

The next issue arising from the submissions borders on the powers vested in the council and whether there is any limitation upon the council as to its exercise of those powers. Mr Amoo for the plaintiff is of the view that the council had power to set up the search committee. I do not think this simple statement of fact goes to issue. He however rests upon section 10 of Act 80 to argue that the council has power to give any power to do any particular act or thing. He contends that the council has power to endorse or accept the report of the search committee and this fact would not constitute delegation of power or make the search committee ipso facto the appointing authority. On this issue of delegation of powers, Mr Pobee was not in agreement. He was of the view that the council cannot in the circumstances of this case delegate its discretion in the matter of appointment of a vice-chancellor. He said that a suggestion that the search party’s report should be accepted by the council without voting is tantamount to a delegation by the council. That would in effect constitute the search committee the appointing authority of the vice-chancellor. Counsel underscored his submission by referring to the component bodies that constitute the university council and espoused the view that the council is made up of carefully selected groups of stakeholders in university education, who the law framers envisaged would exercise power collectively without delegation. Counsel referred to the case of Vine v National Dock Labour Board [1956] 3 All ER 939 at 951, CA for support.

In the case under reference, the facts disclose that the plaintiff was a registered dock worker employed in the reserve pool by the National Dock Labour Board under the scheme set up under the Dock Workers (Regulation of employment) Order, 1947. By clause 3(3) of the scheme, the defendants had the duty of delegating as many as possible of their functions to local boards. By clause 16(2)(c) the local boards were given power to give seven days’ notice of

[p.604] of [1999-2000] 1 GLR 585 termination of employment to any registered dock worker who failed to comply with any provision of the scheme. In 1948 the defendants approved the delegation of, inter alia, powers to disciplinary committees set up by the local board. In October 1952, the plaintiff failed to obey a valid order to report for work with a company of stevedores, and the local board instructed their disciplinary committee to hear the case. That committee, having heard the case, and purporting to act under clause 16(2)(c) gave seven days’ notice in writing to the plaintiff terminating his appointment. On appeal, the court nullified the dismissal on the ground that the board had no power to delegate its disciplinary function. The court specifically stated at 951 of the report, that appointment to an office or position is an administrative act and that if under the law a duty to appoint is placed on the holder of an office, he would normally have no authority to delegate. It was however permissible that he takes advice but he could not legally authorise someone else to make the appointment without further reference to him.

The simple import of the law as reproduced above is that although an appointing authority may empower or commission somebody to do certain things in connection with his work, yet that person or body does not thereby assume the position so to speak, to sit in the chair of the appointing authority to make the appointment. Refer also to SA de Smith, Judicial Review of Administrative Action (4th ed), p 285 where it was stated that:

“The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any Particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it. It must act in good faith, must have regard to all relevant consideration and must not be swayed by irrelevant considerations . . .”

The applicable maxim is delegatus non potest delegare—a delegate cannot delegate; an agent cannot delegate functions to a sub-agent without the knowledge of the principal; the person to whom an office or duty is delegated cannot lawfully devolve the duty on another, unless he is expressly authorised so to do. An illustration of this deeply bedded legal principle is not too far to fetch.

[p.605] of [1999-2000] 1 GLR 585

Indeed, article 195 of the Constitution, 1992 which vests the power of appointment in the council has differentiated situations where the power of appointment so granted can be delegated. By this reference, I do not intend to go beyond my powers to attempt or aspire to embark upon an interpretation of the Constitution, 1992, a power I do not possess. What I am embarking upon is just by way of reference to differentiate between the grant of powers. Article 195(2) of the Constitution, 1992 clearly and specifically empowers the President in appropriate cases to delegate his functions. There is no similar provision with regard to article 195(3) of the Constitution, 1992 and it is my view that none can be imported justifiably.

In order, however, that we really can ascertain and appreciate what the intended relationship between the search committee and the council was, our next step in the approach, after looking at the specific provisions of the enabling statute, would be to take a careful study of the terms of reference of the search committee as well as any other relevant information that was lawfully passed on to them, or what they were asked to do. In this wise, mention has already been made to section 10 of Act 80, which grants discretion to the council to empower another person to do anything in relation to the university. Mr Amoo has sought refuge under this provision. He is right, but that is not to say that Act 80 overrides the limitations imposed by the Constitution, 1992. Where the Constitution, 1992 which is the supreme law of the land takes away the right or power to do anything, no legislation can subsequently confer that power which the Constitution has denied; unless the Constitution, 1992 was first amended.

In 1992 the council set up a search party. In 1998 the version of this body was christened search committee. The 1992 search party was required, according to its terms of reference:

“(i) To discuss and draw up modalities for selecting candidates for the post of vice-chancellor;

(ii) To advertise and receive applications by mid-April 1992;

(iii) To liaise with Ghana diplomatic missions for the purpose of identifying suitable candidates residing outside Ghana;

(iv) To interview candidates between May and June 1992;

[p.606] of [1999-2000] 1 GLR 585

(v) To short-list, three candidates and to submit same and relevant documents to the University Council.”

To facilitate their assignment the search party decided to advertise the position in both local and overseas papers. In addition they sought assistance of the Ministry of Foreign Affairs, Ghana missions in the United Kingdom, United States of America, Canada and Germany to publicise the advertisement. After the closing date for the submission of applications, the party invited those of the candidates it found suitable to attend an interview. Assessments were made on the candidates, application, curricula vitae, the write up on their perception of the university, and their performance at the interview. In addition, the party assessed the candidates on their vision, leadership, administrative or managerial skills, international stature, self expression, motivation and social adjustment or moral rectitude, and awarded marks according to what each candidate deserved, as adjudged by the party. At the end of it all, the party decided to recommend the top three candidates in order of merit to the council and expressed its gratitude for the confidence that the council had reposed in the members and wished “that the search party’s recommendations would assist the university council in its important task of selecting a suitable candidate for the vice-chancellorship of the University of Science and Technology, Kumasi.”

The next time that the office of vice-chancellor became vacant was in 1997. At its 157 meeting held on 17 April 1998, council after a brief discussion:

“agreed that the procedure adopted for the appointment of the former vice-chancellor in 1992 should be followed and members were reminded that the details had already been made available to them at the 156 meeting. It was, however, pointed out that unlike the 1992 practice, council was now vested with the constitutional authority to appoint the vice-chancellor and not the Government.”

The other relevant aspects of the appointment of the search committee including their terms of reference and allied matters have been noted earlier on in this judgment. No issue has been joined regarding the power of the council to appoint a search party.

[p.607] of [1999-2000] 1 GLR 585

Counsel for the plaintiff drew a comparison between the search party of 1992 and the search committee of 1998. He identified the common elements between them to be that in both instances the members as well as the chairman were appointed by the council. In 1992 the party was to short-list three candidates and report to council. The search party was not given any particular mode of procedure but it was clear that there was to be an interview of the candidates to be based upon the applications of the candidates, their curricula vitae, the write-ups on their perception of the university. The criteria by which the search party was to decide were also provided. The central duty of the search party process was the identification of the most suitable scholar for appointment as vice-chancellor.

In spite of its loose mandate, the search party in their report, decided not only to short-list the three top candidates, but also go a step further to rank order them according to merit, showing the total marks each scored at the interview. When the search party report was presented to the council at its 143 meeting, it was deliberated upon to satisfaction and council thereupon decided to forward the names of the first two candidates as ranked according to merit in the report.

Counsel interpreted the speech of the chairman of the council at the inauguration of the 1998 search party as implying that the findings and recommendations of the search committee were to bind the council, such that the idea of voting was a non-issue. He said the council in 1992 did not raise any quarrel at all with the report submitted to it and resolved that the names of the first two candidates in order of merit be submitted to the government. Mr Amoo invited this court to infer from the charge by the chairman of the council to the search committee that in the past the university council itself searched for the most suitable scholar for appointment, but that such function or responsibility was being vested in the search committee, to mean that whatever the committee did in the discharge of their mandate and whomsoever they decided upon to be the most suitable scholar was binding on the council. By this argument the council was left with the formality of merely appointing the candidate so identified. Under the prevailing circumstances therefore, he submitted that the attempt by the council to vote was absurd, illogical and contravened the council’s own declared position as conveyed in its chairman’s inaugural address because the effect of the attempted

[p.608] of [1999-2000] 1 GLR 585 voting by the council amount to the council identifying the most suitable candidate.

The defence counsel, Mr Pobee, made reference to the terms of reference of the 1998 search committee and concluded that the council did not confer any power to appoint on the committee. This fact was acknowledged by the search committee in its report which was submitted to the council for the consideration of the latter.

I will shorten my consideration of whether there was a clear or implied intention that the council was relegating its constitutional duty to appoint a vice-chancellor to the search committee at this stage. Neither the constitutional, nor statutory provisions, or for that matter any known legal principle permits the delegation of the power to appoint, to a subordinate body. In the case on hand, the evidence does not support Mr. Amoo’s contention. Clearly, the terms of reference of both the 1992 and 1998 committees, and statements of their own understanding of the charge upon them as expressed by the committees in both the 1992 and 1998 reports, justify the conclusion that the recommendations of the committees would only go to help the council decide upon the one to appoint. The word “recommendation” has been defined as referring “to an action which is advisory in nature rather than one having any biding effect”: see People v Gates, 41 CA 3d 590 quoted in Blacks Law Dictionary (6th ed) 1272 while the Pan English Dictionary at p 904 defines it as “to recommend is to present something as worthwhile or advisable.”

Since the findings of the 1992 search party and the 1998 search committee are recommendations, then they cannot in law have a greater effect that the word means.

Drawing from the conclusion above, the next issue comes out forcefully. We have to find out to what extent the findings of the committee must weigh upon the council. To put it another way, can it be supposed in any way at all that the recommendation of the committee is binding on the council, and furthermore, how should council treat or consider the report. My earlier conclusion was that the search committee, being a fact finder was not authorised to do the appointment. Where the committee had power to appoint, then barring a demonstration of error of law, absence of substantial evidence supporting its decision, or an arbitrary and capricious action on its part, the finding is reviewable by the court, albeit the court

[p.609] of [1999-2000] 1 GLR 585 has no power to substitute its own judgment even though the court would justifiably have made a different choice had the matter been before it de novo: see Southern Worcester County Regional Vocational School District Labour Relations Commission, 436 NE ed 380 (1932). The central principle of law that is relevant for the determination of the issue arising herein invest jurisdiction to the court to ascertain whether in its conduct the council’s action can be justified upon substantial evidence. The term substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. In this wise it was held in the case under reference that the court may not displace an administrative board’s choice between two conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. See also Universal Camera Corp v National Labour Relations Board, 340 US 474-488 (1951) Where, as in the instant case, the committee was not authorised to make the final determination of who should be appointed, then the focus must necessarily shift. We shall consequently have to consider the actions of the appointing authority in three main respects. The first question then is, is the council correct as a matter of law in deciding to vote to arrive on who to appoint as vice chancellor? The other question is, did the council follow proper legal procedures? Lastly, this court should find out whether council’s decision is supported by substantial evidence, to wit the findings of the search committee.

Before I proceed to find the answers to the questions posed above from the evidence, I find myself unable to resist the temptation of providing a caveat. It is based upon the principle of administrative law to the effect that an appointing authority, in this case, the university council, does not necessarily have to adopt a recommendation of a fact-finder, ie the search committee. This broad statement may be expatiated as follows: if the fact finder produced a short-list naming two or three people as possible candidates, but recommends one of them over the other two, an appointing authority’s decision to opt for any of the two is not necessarily unlawful, let alone arbitrary or capricious. In such an event, the court must accordingly affirm the choice of the appointing authority even if the court would on its own have made a different choice if it had been the appointing authority. This is the principle of law which counsel for the defendant seems to have been urging on the

[p.610] of [1999-2000] 1 GLR 585 court in his submission. It is the same principle which Mr Amoo on the other hand wants to impugn—what he describes as absolute discretion—which according to him the council has not. The above exposition is trite law irrespective of what view either counsel holds. I will shortly turn to this principle of law. That, I intend to do after I have gone into the evidence in this case to assess the conduct of the parties.

The statement of law above is derived from the principle that discretion to do one thing includes the power to choose between alternative possibilities so long as those possibilities meet the proper legal thresholds and the substantial evidence test: see Lisbon v Contribution Retirement Appeal Board, 670 NE 2d, 391 (1966), Lawrence J.

I now proceed to the facts in evidence. After the chairman of the search committee had presented the committee’s report to the council at the 158 special meeting on 31 August 1998, and he had answered questions relating to the work of the committee and its report, he took leave of the council. It was after Rev Prof Dickson, the chairman of the search committee had left the council meeting that some of the members thereof started noticing some inadequacies in the report. Various views were expressed leading to the decision to vote in order to choose the candidate to be appointed. It is the case of the plaintiff that by deciding to vote, the council was not seen to be acting fairly or reasonably. It was alleged in the first place that there was evidence of voting in 1992; that once the search committee had identified the best candidate then there was no need to vote; that either the chairman or himself together with some of the members of the council had known or anticipated who was first on the merit and were biased against him, and had decided to frustrate his appointment. On the first of these grounds, counsel submitted on behalf of the plaintiff that the council in the exercise of its powers was bound to be fair and candid which is interpreted to mean impartial and transparent. It was argued that of the three candidates short-listed, the plaintiff and Professor John S K Ayim had performed creditably at the interview. Notwithstanding that fact, the plaintiff was adjudged the best on merit by the search committee; a committee experts.

Legally, two important comments can be made on this issue of the search committee. In the first place, it is a committee of experts.

[p.611] of [1999-2000] 1 GLR 585

In law, expert evidence is merely persuasive but not binding. In the Ghanaian case of Sasu v White Cross Insurance Co Ltd [1960] GLR 4, CA the Court of Appeal held that expert evidence is to be received with reserve and does not absolve a judge from forming his own opinion on the evidence as a whole. In terms of the holding in the case under reference, the recommendation of the search committee as to who is the best scholar on the merit is merely persuasive, so that the council is not bound to necessarily accept it. The other point is that the search committee had a particular task of identifying the best scholar for appointment as vice-chancellor. It is to that extent a fact finding body. In the process they have the benefit of seeing the candidates and assessing them.

Viewed this way, the committee has advantage over the council where the assessment based upon the interviews was concerned. I have alluded to this principle above. It is however not out of place that I now attempt to narrow down by making reference to decided cases: see the case of Nkaeguo v Konadu [1974] 2 GLR 150 where Edward Wiredu J (as he then was) held, as stated in the headnote, that:

“(1) the two rival stories put up by the parties as to what features divided their lands were primarily findings of fact based on the credibility of the witnesses and principally a matter for the trial court. It was not open to an appellate court to differ from the trial court as to the creditability of witnesses, save for good reasons to be recorded by the appellate court.”

The same principle was applied by the Court of Appeal. In Re Johnson (Decd) Donkor v Prempeh [1975] 2 GLR 182. In that case it was held, inter alia, as stated in the headnote, that:

“(1) this was pre-eminently a case fought within a narrow compass of facts, and the resolution of the central fact in issue whether the disputed estate belonged to the family of the testator or was his self-acquired property depended largely on the trial court’s assessment of both the credibility of the rival witnesses and the cogency of their evidence.”

I refer also to the Southern Worcester County case (supra) where Abram J intoned the same principle when he said: “The commission

[p.612] of [1999-2000] 1 GLR 585 has had the additional benefit of observing the witnesses before judging their credibility. It is not for this court to substitute its judgment on questions of fact for that of the agency.” On the above reference I will conclude that the university council in this case occupies the role of what is termed the appellate court vis-à-vis the search committee which is the first contact point. On the matter of the assessment of the candidates, and ranking them in order of merit therefore, greater weight and credibility attached to the decision of the committee.

In effect therefore, while the fact remains that the search committee’s findings are generally of a persuasive nature, sight might not be lost that it was that committee to which upon the evidence and the law, was assigned and in fact performed the duty of judges of fact. Unless or except instances where there is very strong justification, that is, substantial evidence to the contrary, then their finding of fact cannot be over-looked or treated with disdain.

On the part of the defendants, their counsel Mr Pobee has conceded the duty upon the council to act fairly and reasonably. He referred to the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, CA and submitted that if failing to take into account relevant matters is good ground for setting aside the findings of an administrative body, then it must be a good ground for throwing out the report of the search committee. In this case, Lord Greene MR after showing circumstances in which a court might interfere in the decision or acts of an administrative body, stated that where it was shown that there had been bad faith, dishonesty or unreasonableness, disregard of public policy, then the court can interfere. In addition, Mr Pobee cited the case of Re W An Infant [1971] 2 All ER 49 at 56, HL and submitted that it is this concept of reasonableness or unreasonableness which ought to be applied in determining whether what the council had done was unreasonable. He concluded that the council cannot be said to have acted unreasonably in rejecting the report of the committee and deciding to vote to consider the matter themselves.

The plaintiff has based his allegation of unreasonableness on the decision to vote as arising from bias. His charge is premised upon the fact that he had emerged first on the merit. The chairman of the council had not made any secret of his determination to ensure that the report was rejected, or in any case that the plaintiff was not

[p.613] of [1999-2000] 1 GLR 585 appointed. In furtherance of this objective, the chairman alleged that the report of the search committee had leaked. He tried very hard to find fault and discredit the report which had been produced by the tireless efforts of men of proven integrity and credibility. The search committee had observed the strictest confidentiality and even though the meetings of the committee were attended by secretaries those personnel were kept out during the ranking of the candidates. The ranking was done by the members exclusively and in manuscript, albeit the whole of the rest of the report was type written. Before the 158 meeting was convened the chairman of the council, upon his own volition and without notice to, or the knowledge of the rest of the members of council, had paid a secret visit to the chairman of the search committee in Accra to talk about the supposed leakage which according to the plaintiff existed only in the imagination of the chairman of the council. It is the plaintiff’s contention that the report was opened for the first time in the council meeting when the seal was broken in the view of all members thereof; hence all the noise about leakage was to no purpose apart from self-serving the intentions of the chairman of the council. The chairman was consequently not justified in telling the council members authoritatively that the report had leaked. It was argued on behalf of the plaintiff that if the report had indeed leaked, then the chairman of the council would be fixed with knowledge that the plaintiff was the first on the merit. He therefore hatched this idea of leakage to support an allegation of breach of strict confidentiality on the part of the committee in order to win the favour of members of the council to jettison the report.

Apart from his allegations against the chairman of the council, Mr Amoo referred to instances on the part of members of council suggestive of bias against the plaintiff. He cited the fact that the council prejudicially delayed the setting up of a commission of inquiry into lapses in the administration of the university until after the plaintiff had instituted the herein action. The mischief is brought out forcefully by the fact that the Ministry of Education had since January 1998 written to the university council to constitute the commission whose report was to be submitted to the government on or before 15 February 1998. In spite of this unambiguous instruction, council had delayed until 15 September 1998 before inaugurating the commission of inquiry. According to the report of the inquiry,

[p.614] of [1999-2000] 1 GLR 585 the out-going Vice Chancellor, Prof E H. Amonoo-Neizer had made serious allegations against the plaintiff herein bordering on his suitability or competency or both for appointment as vice-chancellor. It was alleged against the plaintiff that he was not a fit material for the post, and that he had an inordinate ambition. Mr Amoo submitted therefore that the council had embarked deliberately on a smear campaign calculated to disqualify the plaintiff for appointment.

Besides the above, evidence was led to show that one Professor Ben George, a member of the council had declared openly during the 158 Council meeting that the plaintiff was “not one of them”, and had called for the appointment of Professor John S K Ayim. There were other views expressed to the effect that the appointment should go to an alumnus or a candidate who had a science or technical background. Mr Amoo concluded that the evidence strongly and beyond doubt shows that the chairman of the council had shown bias and also that some of the members thereof had used wrong criteria for calling for a vote.

Further to the above allegations of bias and unreasonable conduct, Mr Amoo called attention to the date of birth of Professor John S K Ayim, one of the three short-listed candidate. He was born on 10 August 1942. The advertisement for applications for the post of vice-chancellor set the age limitation—that the applicant must be young enough to hold office for a minimum of four years before he attains 60 years of age B the retirement age. Reference was made to the Constitutional Amendment Act, 1996 (Act 527) which by section 6 thereof amends article 199 of the Constitution, 1992. By the said amendment a new clause (4) is added to article 199 of the Constitution, 1992. It is in the following terms:

“(4) Notwithstanding clause (1) of this article, a public officer who has retired from the public service after attaining the age of sixty years may where the exigencies of the service require, be engaged for a limited period of not more than two years at a time but not exceeding five years in all and upon such other terms and conditions as the appointing authority shall determine.”

It is the view of the plaintiff that notwithstanding the amendment as above, Professor John S K Ayim cannot be appointed in terms of

[p.615] of [1999-2000] 1 GLR 585 the advertisement. He was disqualified by age. The council was therefore not justified to decide to vote on which of the three short-listed candidates should be appointed when one of them is not eligible. With respect to Professor Dr Dr G Wireko-Brobby born in November 1942, he was not only disqualified by age but in addition the search committee report showed that he fell far behind the other two short-listed candidates on merit. Mr Amoo concluded this line of argument by saying that the attempted voting for the three candidates including both Professor Ayim and Professor Dr Dr G Wireko-Brobby is both unconstitutional and absurd.

Mr Amoo submitted that no valid ground was laid by the council to justify their attempt to vote. He cited the criticisms leveled against the report that the report was not explanatory or exhaustive enough; that certain modalities were not followed and also that certain documents were not attached. He sought to debunk these criticisms. It was his view that the committee provided all relevant documents and that if council felt it required other documents it could have requested for those, either through the chairman of the committee or from the secretariat. He argued that the attempt by the council to vote would amount to ignoring the outcome of the interview that the candidates attended. The judgment of the council would have been based only on the documents supplied to members which did not include the performance at the interview. He referred to the 1992 report and submitted that the council at that time accepted the recommendations of the search party without looking at the results of the interview.

The last issue that the plaintiff’s counsel urged on the court was in respect of the resort to casting vote by the committee. He argued that the appointing authority failed to prescribe any particular procedure for the committee; hence where, as in this case the members of the committee unanimously requested their chairman to use a casting vote, then they cannot be faulted. Besides, the above, the establishment instrument of the university had by paragraph (15) of the Schedule thereto attached, made provision for the resort to a casting vote. It states: “(15) The Chairman shall have an original vote and a casting vote.” It was in accordance with this legislation that the registrar of the university who is also the secretary to the council advised the committee that they could use a casting vote. It

[p.616] of [1999-2000] 1 GLR 585 was largely upon the above broad issues that the plaintiff’s action is founded.

We now turn our attention to focus on the submissions that Mr Pobee, counsel for the defendants, made by way of reaction or in response to the position expounded and proferred by this counterpart. On the issue of voting, Mr Pobee was of the view that the allegation that a precedent had been set to the effect that the report of the search committee should be accepted without voting is a fiction. This fiction had been built upon a supposed suggestion by a council member in 1992 that a vote should be taken on the search party report to determine which of the three short-listed candidates was to be forwarded to the Provisional National Defence Council for appointment as vice chancellor and that the council had firmly refused to uphold the said suggestion.

Upon the evidence before the court, I agree with Mr Pobee that the council did not decide against voting. Evidence shows that the member, Mr Boateng Abora, did not attend the 143 special meeting of the council. It was at that meeting that the council deliberated at length on the search party report and decided to forward the names of Professor E H Amonoo-Neizer and Professor Reginald T Ansa-Asamoah to the government. Subsequently, M[sic](2)Boateng-Abora wrote his two letters to the chairman and members of the council suggesting what his presumed best way out was. The council did not meet to deliberate and take a decision on the member’s suggestion. The next time that the council met, at the 144 meeting, the vice-chancellor had already been appointed by the government. The chance was therefore lost to the council to make a decision one way or the other to resolve whether a vote should be used to decide on the search party report. The issue was not raised at the 144 meeting or ever thereafter. It is the view of Mr Pobee however that the denial of voting to council would reduce that body to a mere rubber stamp. I submit that this accords with law.

The legal position as has been postulated above is that the appointing authority cannot be compelled outside the legislation that created that right, or contrary to it, to exercise its power in any particular manner. It is therefore my respectful view that where the peculiar circumstances of a particular case so dictate, and unless there is evidence of a contrary decision on record, the council or for that matter any administrative body, in this case the appointing

[p.617] of [1999-2000] 1 GLR 585 authority, has freedom of election as to the way it can exercise its authority, subject, in any even, to the general sanctions of probity, fairness, reasonableness and the like.

The next issue that Mr Pobee addressed was the claim that the council decided or intended or both to follow the procedure used in 1992 for the appointment of a vice-chancellor. His view was that the circumstances that confronted the 1998 council were different from the scenario in 1992. Constitutional provisions had shifted the power of appointment from the Provisional National Defence Council to the council. The effect of this is that unlike the situation in 1992 when the council’s function was only one step in the appointing process whereby the council did the searching for or identifying the best suited candidates and made recommendation to the Provisional National Defence Council to appoint, the situation in 1988 terminated the whole appointing process in the council. They are, therefore, the final appointing authority. Mr Pobee submitted that the change delimits the extent to which the council was going to follow the 1992 procedure. He concluded that the reference to the 1992 procedure was only the appointment of a search committee to interview candidates and make recommendations to the council. Both the 1992 and the 1998 search committee conducted interviews, short-listed the candidates in order of merit and forwarded their recommendations identifying the best scholar for the consideration of the council. Both reports sufficiently underscored this fact that their findings and conclusions were given only for the advice of council. It is the view of Mr Pobee therefore that the council did not renege on its decision in 1998.

Mr Pobee expressed himself from a different view point as to the plaintiff’s claim that he was first on the merit as found by the search committee, and therefore his appointment by the council was in accordance with precedence to be a matter of fact. According to him, the onus rested on the plaintiff to show that Professor Amonoo-Neizer, the immediate past vice-chancellor, was appointed to the position by the Provisional National Defence Council by virtue only of being adjudged the first on merit by the 1992 search party. The evidence on record is silent on this allegation. He called attention to the deliberations of the council at the 143 meeting where the search party report was deliberated upon exhaustively, and it was only then that the resolution was passed to submit the names of the

[p.618] of [1999-2000] 1 GLR 585 first two candidates in order of merit to the Provisional National Defence Council. Mr Pobee views this act of the council as giving opportunity to the government to appoint somebody who might as well not be the first on merit by the report the search party. The inference is that the government or for that matter, the appointing authority has power of delegation. In conclusion, Mr Pobee submitted that what the council did at the 143 meeting in 1992 is inconsistent with the view that the first on merit by the search party report had to be appointed; hence what happened in 1992 cannot be of assistance to the plaintiff.

Further to the above, the defendants joined issues over the plaintiff’s claim to having come first on the merits. They contend that the plaintiff was not first until he was made to profit from a casting vote. According to the defendants, the search committee had no authority to use a casting vote. The purported grant of such right by the registrar was null and void because the registrar was not a member of the council and lacked capacity to authorise the search committee to use a casting vote. Mr Pobee cited the case of Nell v Longbottom [1894] 1 QB 767 as support for his contention that there must be authority for the use of a casting vote. He submitted forcefully that a person who comes out of a deadlock through the use of a casting vote has not done so on the merit but rather by luck. It is his view that the deadlock could have been broken by a more rational process; hence it was improper for the search committee to have resorted to a casting vote which is at variance with a claim that the plaintiff had come out first on merit.

The defence next directed their attack at the report of the search committee and sought to justify the deliberations at the 158 meeting of the council on 31 August 1998, more particularly the decision to vote on the supposed shortcomings of the report. It was argued that council expected a report that was adequate, that is, one which conveys the view of the search committee as well as the basis for those views. The defendants envisage a report that it exhaustive and adequately reflects all that transpired during the exercise of the committee. By this means, it was argued the council would be enabled to exercise its discretion in the matter. If the council merely rubber-stamped the report, that would make the council guilty of having failed to exercise its discretion. Mr Pobee compared the 1998 report with the 1992 report and said that the committee [p.619] of [1999-2000] 1 GLR 585 report of 1998 was not helpful to the council owing to the absence of the record of proceedings at the interview. He accused the committee of having hidden from the council vital information which was at the disposal of the committee and expressed the view that the council was entitled to reject the report of the Committee because it falls short of the high premium expected by the council.

The last major point that was raised was in respect of matters arising from the 158 council meeting held on 31 August 1998. According to Mr Pobee, the circumstances were that if one of the candidates had been appointed on that day, he could not serve four years as vice-chancellor. His point of view was that the council delayed in convening a meeting to appoint a vice chancellor and that delay worked inequity because those candidates had been adversely affected through no fault of their own. Counsel cited instances where successful appointees were neither full professors, no in certain cases not even professors.

In this trial, both counsel concede to the court the jurisdiction to find out whether or not the council had acted in accordance with law in the exercise of its constitutional functions. The court in this exercise has to scrutinize the behaviour of council members to ascertain whether the powers vested in them have been used properly. I will therefore, in a summary form try to revisit the issues raised, more particularly in the submissions of counsel vis-à-vis the exercise of the power reposed in the council, and attempt to find out whether the council is justified or can be faulted. At the centre of the whole activity stands the decision of the council to vote. Before I come to the facts in evidence herein, I intend to consider two foreign decisions, having warned myself of the need to exercise great circumspection about the weight to attach to them. This exercise of caution stems from two reasons. The first one is that those decisions arise from peculiar statutes which went before the courts. The second is that the said cases do not arise from common law origins. They are however useful guide in so far as the facts and rationes decidendi reflect much legal wisdom in situations analogous to those herein.

The instant action arose because the plaintiff placed first on merit at the interview and yet the council did not show an inclination to automatic appointment of him. A similar case went before the Massachusetts Court of Appeal in 1995 titled Kelieher v Personnel Administrator of The Department of Personnel Administration, 421

[p.620] of [1999-2000] 1 GLR 585

Mass 382 (1995). The facts of that case are that the chief engineer’s post in the Somerville Fire Department fell vacant. The mayor of Somerville was the appointing authority. He provisionally promoted Deputy Fire Chief John Gover to the position of acting chief engineer. To this appointment Kelieher, the plaintiff, objected. The facts revealed that Kelleher[sic](3) joined the Somerville Fire Department in 1977 and rose in rank to deputy fire chief. In 1990 the plaintiff and another person took a promotional examination for the position of chief engineer. The plaintiff attained the higher score. In 1992 he took the examinations again but he was the only candidate. He obtained 91 and secured his place as the only person on the 1992 list. In 1993 another examination was held for the position since the incumbent was due for retirement on 6 January 1994. On 7 January 1994 the mayor provisionally appointed Deputy Fire Chief Gover to act as chief engineer. In March, an examination was held for the post. Two persons competed. Kelieher obtained the higher score. Thus on each occasion, Kelieher’s name topped the list of fewer than three names (a short list). In August, the mayor requested the administrator’s approval for Gover’s appointment as a provisional promotion. Kelieher brought an action in the superior court to enjoin the mayor from taking further steps to make an appointment, provisional or permanent, of any one other than Kelieher. The superior court judge, in a comprehensive and carefully reasoned opinion, denied Kelieher the relief he sought. The appeal court per Fried J affirmed the decision of the superior court.

This was followed by a similar case, decided on 17 April 1996, Bielawski v Personnel Administration[sic](4) of the Division of Personnel Administration, 422 Mass 459 (1966). In the case the plaintiff had been employed as a permanent police officer since 1978. On 19 April 1986 the Department of Personnel Administration conducted an examination to establish a list of eligible candidates for promotion to the rank of sergeant in the Dedham Police Department. The plaintiff received 87, the highest score on the examination. The personnel administrator then certified a list of candidates to the selectmen. The plaintiff appeared on the top of the list. The list also contained the following persons and scores as they appeared on the certified list: Richard McCarthy, 85; Anthony Defalco, 84; Edward St George 84; Michael Weir 84; and Richard Keane, 83. On 11 September 1996, the selectmen voted to promote Weir to the

[p.621] of [1999-2000] 1 GLR 585 position of sergeant. The applicable legislation provided that when a candidate who appears higher on the certified list is by-passed for appointment in favour of another candidate, the appointing authority must submit a statement of reasons for the by-pass to the personnel administrator. The selectmen explained that it promoted Weir because of his extensive volunteer work in organising safety classes. The Court of Appeal in this instance also upheld the by-pass because their lordships were satisfied that the appointing authority had supported its decision to affirm the Weir by-pass with substantial evidence and the decision was free from error. Weir was tired for third position on the certified list and the selectmen provided the personnel administrator with the reasons for their by-pass. The reasons submitted legitimately distinguished Weir from the plaintiff and were amply supported by documentation and testimony. The significant aspect of the case under reference is the adduction by the appointing authority of sound and legitimate reasons to justify the bypass.

The last reference on this issue is the City of Cambridge v Civil Service Commission, 43 Mass App Ct 300 (1997) a very recent case. The facts are that on the basis of a competitive examination, one Leslie Langston had qualified in December 1992 for appointment as a police officer in Cambridge. The appointing authority of that city developed some adverse facts about her in a record check and obtained permission to by-pass her. The superior court’s decision in favour of Langston was reversed by the Court of Appeal on the basis that the appointing authority had sustained its burden of proving that there was reasonable jurisdiction for its action. In that case, the term justified was stated to mean a thing done upon adequate reasons sufficiently supported by credible evidence when weighed by an unprejudiced mind guided by common sense and by correct rules of law. The import of the above references is that the appointing authority may or may not appoint the candidate placed first by the fact finder, proved they have sufficient evidence.

At this stage in our consideration, I should think time is ripe for us to attempt to put the legal principles above, which I say with respect, are of universal application side by side the factors and circumstances herein. I will start with the advertisement for the post of vice-chancellor because in my view, it deserves recognition as the starting point. The advertisement circumscribed the qualification

[p.622] of [1999-2000] 1 GLR 585 of the applicants. The successful applicant must have satisfied the conditions therein set out under the sub-headings The Post and The Person. Needless to say that the search committee’s short-listing of candidates both before the actual invitation for the interviews, as well as after the interview, are based upon the criteria first advertised. Step two sets out the modalities or guidelines to the search committee instructing them as to what to look for in the candidates at the interview. If therefore the council meeting held on 31 August 1998 sought to introduce other criteria, or elements which were neither advertised nor put in the contemplation of the search committee, then a duty befalls the council to justify why they would for instance rather vote for an alumnus or a scientist, or introduce any qualification which was not previously included in the criteria set out, and appoint a vice-chancellor on what apparently is extraneous consideration.

I fail to be taken in by the defendants’ attempt to dismiss these criteria as mere opinions expressed. Upon the evidence, the decision to vote was to some measure swayed by those supposedly innocuous concerns. As a matter of fact, however, the council is not precluded from considering these or any other conditions provided that these new elements do not replace or out-weigh the advertised qualifications. In keeping with legal principle, I will furthermore reiterate that the council, as the appointing authority, has the right to determine its own procedure, and it is not for this court to say that it cannot vote, provided that the decision to vote was backed by fairness, substantive evidence and reasonable justification. Besides the above, the right of voting has been conferred by Act 80, para 14 of the Schedule thereto. The fact that three names were before the council means that each of the three short-listed candidates is in the opinion of the search committee qualified and a prospective appointee. The council’s duty is to consider them in the way as presented. Where it disapproves of the first, then it would shift to the next until the list has been exhausted. Where the exigencies demand, voting cannot be ruled out. It accords with law to say that each case will be determined according to its peculiar merits and circumstances. The fact that one council did not vote in 1992 to resolve which of the three short-listed candidates was to be forwarded to the Provisional National Defence Council for appointment does not necessarily preclude the council at another time, when confronted

[p.623] of [1999-2000] 1 GLR 585 with a different situation, facts and circumstances, form resorting to a vote to resolve the question. To hold otherwise would not accord with justice.

I now turn to the placing of the candidates in order of merit. Reasons have surfaced from the evidence why much premium ought to be placed upon the finding of the search committee. I should, respectfully, think the council was too hasty to condemn the committee’s ranking of the candidates leading to the order of placing. It is a fact of no mean importance that the committee had seen and observed the candidates. The assessment has not been haphazard. On the contrary, it was factually based. No less satisfactory was the resort to the casting vote to resolve the tie. As a matter of fact Act 80 grants to the chairman of the council both an original and a casting vote. The effect of this is that the practice is known to the council and to the university. In this whole exercise of setting up the search committee of 1998, including their instructions, supply of materials they would need, the modalities and criteria, just to mention a few, the registrar was the contact point between the committee and the council. With the registrar not being a stranger to the procedure actually practiced as well as those provided by law, which include the availability to the chairman of the council of the right to use a casting vote, would it be too far-fetched, or can the registrar be justifiably faulted for asking the committee to use the casting vote if and where circumstances demanded? In my candid view the answer is bound to be negative. I would hold that the casting vote in the circumstances which confronted the committee was not arbitrary, capricious, nor actuated by luck, but rather well informed by the facts arising from the totality of the documents, proceedings at the interview and evidence that went before the committee. I am fortified in this decision by the reasoning of Cave J in Nell v Longbottom (supra) at 771 where the learned judge stated that: “When, as the result of the chairman’s giving his vote, the numbers on either side become exactly equal, the common law appears to have provided no way out of the difficulty. The institution of a second or casting vote, as it is called, is the creature of the statute law introduced for the purpose of avoiding the deadlock which would otherwise ensue.”

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In the instant case, there is statutory provision under Act 80 which is available to the chairman of the council. It may be argued that the chairman of the committee was not envisaged, but this objection is a debatable issue. Acting upon the instructions of the chairman and members of the council, the registrar of the university who is also secretary to the council told the committee what it can do. The committee, strictly speaking, cannot go outside the statutes and regulations under which the university conducts its business. In this case it acted in accordance with what it consider legitimate instructions.

The appropriate tenure of office of the vice-chancellor was raised. I agree with Mr Pobee’s view that to the extent that the decision to change from the four years as advertised, to five years, which is more in conformity with practice in the university remained in the board room and did not effectually alter the position of the candidates because the change was not communicated to them. I will submit that the advertised tenure affected the applicants. Any subsequent change ought to have been made known to them, as soon as it was effected. The advantage in such a conduct is that it would have put the candidates on their guard. Some of them might even have withdrawn their applications if the alternation had been brought to their knowledge. I will therefore hold that the change of tenure from four years to five is ineffectual under the circumstances. It was invalid and inoperative in so far as the appointment of a vice-chancellor 1998 went.

The evidence before me, does not support the allegation of possible leakage of the contents of the report of the search committee. What happened was natural and to be anticipated. The issue that confronted the council and led to the setting up of the search committee was sensitive and had generated much interest not only in the University of Science and Technology but in almost all circles throughout Ghana and even beyond our borders. Expectations were high and curiosity aroused. People were bound to speculate the probable outcome of the search. Besides, this general position, is the fact that the candidates are all Ghanaians and it cannot be ruled out that they must have discussed their performance with family members, friends and colleagues. The fact that newspapers published views on the interview per se is not enough yardstick to draw a conclusion of leakage of the report. I will shudder form such a view.

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I will now address the issues as follows: The evidence does not point conclusively that the report of the search party was automatically endorsed in the appointment of officers in the university. Interestingly, even though this particular issue is drafted in the plural, which is suggestive that the practice was referable to appointment of officers in the university, the evidence led was limited to the appointment of the vice-chancellor. There is accordingly no evidence before me from which to draw such conclusion. With respect to the appointment of the vice chancellor the evidence referred mainly to the 1992 and 1998 processes. In 1992 the council exhaustively deliberated upon the report and decided to forward the first two names as appeared in order of merit. The council had three names to choose from and the appointing authority, the government had two. These facts arising upon the evidence negate the inference sought to be drawn.

Voting rights are granted to the council by statute and the council may decide to resort to voting on any issue, in accordance with the statutory provisions. The registrar of the university, purportedly acting upon the authority of the council, gave directions to the search party including the right to resolve a deadlock, by resort to the casting vote. The propriety of the conduct of the registrar in this action is not under trial. It is presumed that he acted in good faith. Besides this, I have pointed out previously that the search committee, in the exercise of its mandate could operate only within the rules, laws and regulations exigible within the University of Science and Technology set up. Accordingly, I hold that the chairman of the search party was under the circumstances that prevailed, entitled to and rightly used the casting vote.

What I find from the evidence on the fourth issue is that the search committee’s main duty was to unearth the most suitable scholar. In spite of the qualification apparent in the above phrase, the committee was asked to present a short-list of three candidates. Since they are to be arranged in order of merit, I think the appropriate description would be the best, the next or second best and the third best scholar. Legally the search committee had an onerous duty and the assessment was peculiar to them. There is no dispute that the plaintiff was ranked first by the search committee, and I so hold.

Upon the evidence, I am not satisfied that there was bias. What the chairman of the council did was a show of concern that things

[p.626] of [1999-2000] 1 GLR 585 were done properly. The views expressed by members are normal in meetings of this nature and underscore the democratic principle except for the statement attributed to Prof Ben George. I will dismiss the importation of bias.

Lastly, I come to the reliefs. The plaintiff fails on the first relief, for a declaration that there is a procedure to the effect that the vice chancellor was appointed by accepting and endorsing without voting the report of the search party. The plaintiff will fail on the second relief too. In 1992 (and before then) the procedure involved the search party, the council and the government. If the procedure used in 1992 was to be followed strictly then that would amount to upholding a law which is in conflict with the Constitution, 1992. The evidence shows that the 1998 council decided to adopt the search party process. They were not bound to adopt in the first place. What eventually was adopted was a modified version of the 1992 effort. The University council will be held bound by the process that they adapted and then adopted unless there are special circumstances to dictate otherwise.

The third claim, dealing with injunction defies my clear understanding. I will however make an order in keeping with general administrative requirements restraining the first defendant from acting unfairly, unreasonably or prejudicially in the exercise of its power of appointment of a vice-chancellor. In the course of addresses, counsel for the plaintiff discontinued against the second defendant. Accordingly the second defendant is struck-out as party herein.

The fact that this court has jurisdiction in this suit more particularly in respect of the reliefs indorsed is now beyond conjecture in the face of the foregoing reasoning. Accordingly, the first defendant is to act through the second defendant under powers conferred by article 195 (3) of the Constitution, 1992 and section 6 of Act 80 and appoint a vice-chancellor using as the reference point the report of the search committee of 1998, ie they should continue with the agenda of the 158 meeting of the council. They are to discharge this function and exercise their discretion according to the rules of reason and justice, ie according to fairness not private opinion, according to law and not humour, not arbitrary, vague or fanciful but legal and regular; and it must be exercised within the limit to which an honest man, competent to discharge his office ought to [p.627] of [1999-2000] 1 GLR 585 confine himself: see Sharp v Wakefield [1891] AC 173 at 179, per Lord Halsbury LC. Upon the foregoing, the plaintiff’s action fails.

DECISION Action dismissed.

LSNA

Endnotes

1 (Popup – Footnote) [sic] same in original. 2 (Popup – Footnote) [sic] same in original. 3 (Popup – Footnote) [sic] same in original. 4 (Popup – Footnote) [sic] same in original.