NYAHO VRS. THE INSPECTOR GENERAL OF POLICE AND ANOTHER (HR/0039/2024) [2024] GHAHC 414 (24 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAND COURT NINE, HELD IN ACCRA, ON 24TH OCTOBER, 2024, BEFORE HER LADYSHIP, JUSTICE BARBARA TETTEH-CHARWAY, HIGH COURT JUDGE. SUIT NO:HR/0039/22024 IN THE MATTER OF ARTICLE 33 OF THE 1992 CONSTITUTION AND IN THE MATTER OF ORDER 67 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C.I 47) AND IN THE MATTER OF NO 35706 D/SGT SIMON NYAHO - APPLICANT DAWHENYA, ACCRA Versus 1. THE INSPECTOR GENERAL OF POLICE - RESPONDENTS NATIONAL POLICE HEADQUARTERS, ACCRA 2. ATTORNEY GENERAL ATTORNEY GENERAL’S CHAMBERS MINISTRIES, ACCRA JUDGMENT 1 1] The Applicant, Dsgt Simon Nyaho, is a police officer who is currently stationed at Accra Regional Command but has been seconded to the National Security Secretariat. The 1st Respondent is the Inspector General of Police while the 2nd Respondent is the Attorney General. 2] According to the applicant, per a signal dated 31st August 2016, he was put on interdiction by the 1st respondent. The said interdiction was subsequently revoked following a petition from his lawyer. 3] Applicant claims that after the revocation of his interdiction, he resumed duties as a police officer and was seconded to the National Security Secretariat where he currently serves as an investigator. 4] According to the applicant, after the revocation of his interdiction, he participated fully in the prescribed training sessions and courses designed for promotion to the next rank, yet the 1st Respondent refused to promote him. 5] Applicant further claims that the 1st Respondent’s decision not to promote him was based on an unlawful disciplinary proceeding that was commenced against him after the revocation of his interdiction. It is the applicant’s further case that he challenged the lawfulness of the disciplinary proceedings in a suit before the High Court which went on appeal. He claimed that the Court of Appeal held that the purported disciplinary proceeding that was commenced against him was unlawful and arbitrary. 6] Applicant claims that after the Court of Appeal had delivered its judgment, he caused his lawyers to have the Entry of Judgment served on the 1st Respondent. He also caused his lawyers to write to 1st Respondent to request that he be promoted to the rank he would have been on but for 1st Respondent’s commencement of the unlawful disciplinary proceedings against him. Applicant claims that the said letter was received 2 on behalf of 1st Respondent on 12th July 2023, however, to date, 1st respondent has failed or refused to formally acknowledge receipt of same. 8] Applicant further claims that 1st respondent recently caused messages to be sent to officers to notify them that they had been promoted as evidenced by Exhibit D. It is the applicant’s case that he has remained on the same rank for eight years as evidenced by Exhibit E. 9] Applicant contends that the 1st Respondent’s argument that there was no guarantee that he would have passed the Police Academy entrance examination was untenable as he had passed the Bar exams, which he considered more competitive than the Police Academy Entrance examinations. 10] Applicant asserts that 1st Respondent’s refusal to promote him violates articles 18(2) 23, 33(5), 191(b) and 296 of the 1992 constitution and prays for the following reliefs; 1. An order directed at the 1st respondent to take steps to admit applicant into Police Academy with the next batch of officers 2. An order directed at 1st respondent to promote applicant to the rank and level he would have attained but for the unlawful disciplinary proceedings (rank and level of his intake mates ) within two weeks of graduation from Police Academy 3. Order within two weeks for payment of all benefits and entitlements he would have enjoyed but for the unlawful disciplinary proceedings 4. Interest on (3) at prevailing bank rate. 11] The Respondents filed an affidavit in answer in which they opposed the application on the ground that it was an abuse of process. According to the Respondents, the subject matter of this application had already been determined by the Court of Appeal in suit no H1/62/2022 which was attached to Respondents’ affidavit in answer as Exhibit 1. Respondents further asserted that the applicant had failed to raise any other issues or 3 adduce cogent evidence to support his quest for promotion and therefore he was not clothed with the right to bring a fresh action in another court. Respondents again contended that the applicant was barred by the principle of res judicata from bringing the instant suit. 12] Respondents denied applicant’s assertion that he was put on interdiction which was subsequently revoked. They rather claimed that the applicant and one other colleague were tried for various offences. 13] Respondents further contended that the applicant could not have been promoted while disciplinary proceedings were pending against him. They further contended that applicant could not have been promoted while his case before the High Court and subsequent appeal were pending. 14] Respondents stated that they could neither admit nor deny applicant’s claim that his petition for promotion was received by the Police Administration on 12th July 2023 but had been ignored. 15] Respondents further maintained that promotions in the Police Service were not automatic but based on vacancy, performance and other factors. 16] Respondents maintained that the application was an abuse of process because the Court of Appeal had already dealt with the same issues concerning applicant’s promotion between the same parties. 17] Having examined the Applicant’s application and the Respondents’ affidavit in answer, the main issue before this court is whether or not the 1st Respondent has acted unfairly in not promoting the applicant. 18] But before addressing the said issue, the court notes that the respondent objected to the court’s jurisdiction to handle the instant action on the grounds that the same issues 4 arising in this dispute had been determined between the same parties by the Court of Appeal. This court must therefore determine whether it has jurisdiction before proceeding to the merits of the matter before it. 19] In proving that a matter has already been determined between the same parties, the onus lies on the party making the assertion to produce the record of proceedings to substantiate his or her claim. See: Kariyavoulas v Osei [1982-83] 1GLR 658 where it was held that; “In order to ascertain whether the parties were the same and also the import of the decision in the earlier proceedings, the whole record of proceedings ought to be examined if a proper determination on the issue of res judicata could be made…” 20] In the instant case, the Respondents did not produce either the record of proceedings before the High Court or the Court of Appeal but merely stated that the Court of Appeal had dealt with the same issues between the same parties in its judgment. This court has examined the Court of Appeal judgment and notes that the reliefs sought by the applicant at the High Court were as follows; 1. A declaration that by regulation 105 (12) of the Police Service Regulation 2012 CI 76 the 1st respondent is mandatorily required to revoke the interdiction of the applicant and for the applicant to resume duty if no disciplinary proceedings have been instituted against applicant three months of interdiction 2. A declaration that disciplinary proceedings were instituted against the applicant more than three months after his interdiction 3. An order of certiorari calling up and quashing any purported disciplinary proceedings instituted by the 1st and 2nd respondents against applicant more than three months after interdiction 5 4. An order in the nature of prohibition requiring 1st and 2nd respondents to immediately cease and desist from conducting any further disciplinary proceedings against applicant. 5. An order to reinstate the applicant to any position or rank due him which has been hindered or delayed by the purported action which is null and void. 21] This court gathers from reading the Court of Appeal judgment that the High Court had refused to grant the order of certiorari which to quash the disciplinary proceedings which the applicant had sought as one of his reliefs. This is because the High Court took the position that the 1st respondent had the power to hold disciplinary proceedings against the applicant at any time. The High Court had also held that the applicant’s relief for an order of reinstatement was statute barred. Dissatisfied with the judgment of the High Court, the applicant appealed to the Court of Appeal. 22] In its judgment, the Court of Appeal held that “clearly the continuous interdiction of the applicant well after the statutory period of three months was unlawful” The Court of Appeal was of the opinion that “keeping appellant on interdiction for well over three years without commencing disciplinary proceedings to determine his guilt or otherwise is against the letter and spirit of regulation 105 of CI 76 and that in the circumstances, to subject appellant to any disciplinary proceedings would be unfair, prejudicial and result in injustice” The Court of Appeal therefore ordered that the disciplinary proceedings be quashed and prohibited the 1st Respondent from conducting any further disciplinary action against appellant now applicant. 23] It is significant to note that the Court of Appeal did not make any orders concerning the applicant’s relief for reinstatement to any position or rank due him. This is because the Court of Appeal found that the applicant had already been reinstated. The Court of Appeal mainly concerned itself with the legality of the interdiction and subsequent disciplinary proceedings held by 1st Respondent against applicant. This court therefore 6 finds that the issue of the applicant’s delayed promotion and whether or not same was justified was not dealt with by the Court of Appeal. Thus the averment made by the Respondents that the issues in the instant application had already been determined between the same parties was not accurate. This court therefore has jurisdiction to entertain the instant application. 24] From the totality of the facts before the court, it is clear, per exhibits A and B that the applicant and another police officer were put on interdiction in August 2016. Subsequently, the interdiction was revoked after the applicant’s lawyer had petitioned to 1st Respondent. After the revocation of the interdiction, the applicant resumed duties and was assigned to the National Security Secretariat as an investigator. Although he participated in prescribed training and courses leading up to promotion to the next rank, he was bypassed for promotion because he was undergoing disciplinary proceedings. The Court of Appeal subsequently declared per its judgment which was delivered on 1st December 2022 that the said disciplinary proceedings was unlawful. 25] The court notes that as a result of the unlawful interdiction of the applicant by the 1st respondent as well as the unlawful disciplinary proceedings that were held by 1st Respondent after the applicant’s interdiction had been revoked, in addition to the court action that applicant took to vindicate his rights, applicant has remained on the rank of Sergeant for eight years. Clearly, had these series of events not occurred, the probability that the applicant would have been promoted is high. 26] It is the view of the court having regard to the totality of the facts before it that the 1st Respondent has not treated the applicant fairly; firstly, by putting him on indefinite interdiction in violation of its own regulations; secondly, by subjecting him to disciplinary proceedings after the revocation of the unlawful interdiction which said proceedings the Court of Appeal has found to be “unfair and prejudicial” and thirdly, by failing or refusing to take any remedial action in favour of Applicant after its conduct had 7 been declared unlawful and same had been brought to its attention by applicant’s lawyer. The court notes that 1st Respondent has failed to respond to the petition filed by lawyer for applicant. 27] The court finds that 1st Respondent’s conduct violates article 23 of the 1992 constitution which provides that; “Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.” See: Awuni v West African Examinations Council [2003-2004] SCGLR. The court further finds that 1st Respondent’s conduct violates article 296(b) of the 1992 constitution which provides that “the exercise of discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law” This is because the 1st Respondent could not offer any reasonable explanation as to why it had not promoted the applicant after the Court of Appeal delivered its judgment in 2022. 28] The court however finds that the applicant failed to demonstrate how the conduct of the 1st Respondent implicated articles 18(2) of the 1992 constitution on breach of right to privacy and article 191(b) of the 1992 constitution which deals with dismissal, removal or reduction in rank of a public officer without just cause. None of the disciplinary sanctions enumerated in articles 191(b) have been imposed on applicant. The fact that applicant has not been promoted does not mean he has been reduced in rank. 29] The court notes that Applicant is currently on the rank of sergeant. According to him, his intake mates are now on the rank of Assistant Superintendent of Police after successful completion of Cadet Courses at the Police Academy. This assertion was denied by the Respondents in their affidavit in answer. The burden was therefore on the 8 applicant to prove that his in-take mates were now Assistant Superintendents of Police (See: Zabrama v Segbedzi [1991] GLR). This, the applicant failed to do. 30] Given the number of years Applicant has served on the rank of sergeant, and the fact that the disciplinary actions that were taken against him by 1st Respondent which affected his promotion have been declared unlawful by the Court of Appeal, the court holds that the 1st Respondent’s failure or refusal to promote the applicant post the Court of Appeal judgment is unjust. The court further holds that 1st Respondent has not treated the applicant fairly and any further delay in applicant’s promotion will constitute a continuous violation of article 23 of the 1992 constitution on the part of 1st Respondent. 31] NOW THEREFORE THIS COURT; 1. ORDERS that 1ST Respondent is to promote the applicant to the rank of Chief Inspector to take effect with the last batch of officers promoted to the rank of Chief Inspector in 2024. Order to be effected immediately without delay. 2. RECOMMENDS that Applicant should be added to the next batch of officers to undergo training at the Police College to be considered for promotion to the rank of Assistant Superintendent of Police. 3. No costs awarded. BARBARA TETTEH-CHARWAY (MRS) JUSTICE OF THE HIGH COURT 9