MEMUNATU TANKO V. NATIONAL HEALTH INSURANCE AUTHORITY

JUDGMENT

ABODAKPI, J.

1. BACK GROUND  

The originating application in this action was filed on 01-03-2018.  Subsequently, on 15-05-2019, the relevant written legal submission, entitled  ‘Statement of Case’ was filed. 

Respondent field affidavit in answer on 25-03-2019. When matters related to  preliminary objection were dealt with, counsel for Respondent filed a written  submission. The relevant process is the one filed on 14-06-2019. Order 67 Rules 5 of the High Court, Civil procedure Rule, 2004, C.I. 47/04,  provides that the action be set d own for hearing. 



Even though that process, if it had been filed should contain the triable  issues, the motion and legal written submissions filed contained the issues  for determination, in this trial. 

2. TRIABLE ISSUES AND RELIEFS  

i. Whether or not the purported transfer of Applicant from National  Health Insurance Authority [N.H.I.A] by the Chief Executive without  recourse to the Public Services commission is ultra vires. 

ii. Whether or not the transfer of Applicant from N.H.I.A, to the Ministry  by the Chief Executive, without recourse to the Public Services  Commission is UNREASONABLE and in Breach of Applicant’s right  to Administrative justice. 

iii. Whether or not the purported transfer of Applicant from N.H.I.A to  the Ministry by the Chief Executive without recourse to the Public  Services Commission violates her rights to work. 

iv. Whether or not the purported transfer of Applicant from N.H.I.A by  the Chief Executive without recourse to the Labour rules on organizational restructuring is contrary to law.

These issues can be found under paragraph 39 of the deposition in support.  They have been stated as grounds upon which the application has been  made. 

In paragraph 40 of the deposition in support, the Reliefs sought could be  found. They are: 

i. A declaration that my purported transfer from the Authority to the  Ministry by the Authority’s Chief Executive without recourse to the  Public Services Commission is ultra vires. 

ii. A declaration that my purported transfer from the Authority to the  Ministry by the Authority’s Chief Executive without recourse to the  Public Services Commission is unreasonable and in breach of my  right to administrative justice. 

iii. A declaration that my purported transfer from the Authority to the  Ministry by the Authority’s Chief Executive without recourse to the  Public Services Commission violates my right to work 

iv. A declaration that my purported transfer from the Authority to the  Ministry by the Chief Executive without recourse to the Labour rules  on organizational restructuring is contrary to law. 

v. An order of certiorari quashing the Authorities Chief Executive’s  decision purportedly transferring me from the Authority to the  Ministry. 

vi. An order directed at the Authority’s Chief Executive to restore me to  my position as the Authority’s Quality Assurance Director

vii. An order directed at the Authority to pay me my salary from  September, 2017, when the Authority ceased paying my salary until  the date of this judgment

viii. An order directed at the Authority to pay interest on my accumulated  salary at the prevailing Bank rate from September, 2017 when the  Authority ceased paying my salary until the date of final payment. 

On the other hand, this is how the Respondents couched the triable issues in  this form: 

i. Ultra vires acts, 

ii. Unreasonable and in breach of the Applicant’s right to administrative  justice  

iii. Violation of the Applicant’s right to work and  

iv. Contrary to law insofar as it runs contrary to the Labour Rules on  organizational restructuring  

It is clear parties are adidem on what the triable issues are, because there is  no material difference in the way Respondents have stated them, compared  to what the Applicant has stated 

3. EVIDENCE AND ALLOCATION OF BURDEN OF PROOF 

Applicant is obligated to prove that the actions, decisions, findings and  directives complained about are ultra vires, i.e. beyond the powers of NHIA and  its Chief Executive Officer [herein referred to simply as C.E.O]. 

Applicant must prove that the Respondents acted unreasonably in relation to the  matters complained about. And that her right to work has been interfered with  without recourse to the law. 

Applicant is obligated to adduce sufficient evidence on the triable issues, in  order to obtain a favourable ruling on them. The onus of producing evidence,  the burden of persuasion must be discharged on the preponderance of the probabilities. See section 10 (1), 11 (1), 12 and 14 of the Evidence Act [NRDC323].

In respect of Respondents, they are to establish this converse of the triable  issues. If there are admissions made on any of the issues in controversy, or if  the burden of persuasion has shifted, it will affect findings to be made on the  facts in issues. 

4. EVIDENCE  

The testimony of Applicant as in the affidavit filed on 01-03-2018 is to the  effect that on 05-03-2014 she was appointed as Deputy Director of  Respondent/institution, and she was in charge of Service and Provider  Management. 

And on or about 07-07-2014, she was appointed to the position of Acting  Director in charge of Quality Assurance Directorate, and subsequently,  confirmed as a Director of that Directorate. 

Still on her appointment, the evidence of Applicant is that, her appointment was  authorized by the President of the Republic of Ghana. 

In support of these averments, there are EXHIBIT ‘DMT 1, 2 and 3, the  appointment letter dated 05-03-2014, appointment to the grade of Acting  Director- Quality Assurance, on 07-07-2014 and lastly a letter dated 11-08- 2015, signed by Michael Owusu-Nimako, secretary; public Service  Commission, is that letter that appointed Applicant as Director, Quality  Assurance. 

Secondly, the evidence proffered in support the contention that her transfer was  ultra vires, the powers of Respondent, institution, she cited EXHIBIT “DMT4’ as the letter. I have perused same, it is dated 14-08-2017 which is the date of the transfer, which took effect from 01-09-2017. 

The document has been signed by Dr. Samuel Annor, the Acting Chief  Executive of the Respondent. Applicant complains about the transfer included,  lack of information on the source of directive, leading to the decision to  transfer her, and absence of what her status or rank is or would be at the  Ministry of Health. She added that, she has not been appointed by Ministry of  Health. 

Thirdly, the deposition is to the effect that, the transfer was ultra vires, the  powers of Respondent because, EXHIBIT DMT5’, the Human Resource Framework Policy Manual of the Public Services Commission has not been  complied with. She cited specifically Article 3.6 in support. 

In addition, she stated clause 4.18.1 of the Human Resource Framework Policy  Manual, for the Public Services Commission, which is EXHIBIT DMT6’ the  transfer of a public servant from one Institution to another within the public service, must be done by the Public Service Commission with the approval of  the Head of the Organization, but not by the head of one institution to another. 

The fourth material averment in the affidavit evidence centered on the reasons  given to justify the transfer. It is Applicant’s case that the decision is  unreasonable. 

The deposition in paragraphs, 20, 21, etc. is that lawyers for Respondent wrote  to her stating that, the position of Director [Quality Assurance], has been  rendered entirely redundant because the Respondent had adopted an  organizational restructuring to its working organogram. EXHIBIT ‘DMT7’ is the letter, it is dated 16-10-2017, written by Respondents  lawyer to the Applicant’s lawyer. 

I have perused the document, it is true, Respondent has stated the office of  DIRECTOR Quality Assurance, has been abolished. The document shows that,  Quality Assurance Department still exist. 

Furthermore, EXHIBIT ‘DMT7’ in the last but one paragraph reads: 

“…….. sir, you are however correct, and we do agree with you, to the extent that the abolition of that posting under circumstances of the organizational restructuring renders  section 65 (2) b of the Labour Act, 2003 ( Act 651) applicable,  especially if your client should find the Authority’s attempt to assign her to the Ministry of Health inappropriate.” 

In the last paragraph, counsel for Respondent wrote: 

“we have our clients instructions to discuss with you the preferred approach of your client which we would be amenable to discuss with a view to arriving at a final  resolution” 

Applicant denied and contended that organizational restructuring has occurred, she  stated the unit she headed still exists and is operationally yet her office was  targeted. 

And even though by that decision and on Respondent’s, own showing the  provision of the Labour Act, should have been set in motion, this has not been  done.

Finally, the deposition of Applicant is to the effect, that even though her lawyers  have written to Respondent, invoking provisions available to a public servant, in  the Human Resource Framework, Policy manual, since 29-08-2017, it yielded no  positive response. 

EXHIBITS: 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 were all tendered, to establish  the fact that some correspondence has taken place but, Respondent was  unreasonable in its reaction and decision, leading to a stalement, hence this action  was initiated by the Applicant herein.  

Applicant said it was wrong for Respondent to refuse to meet/engage her and it is  Chief Executive and or the Board that must meet her and not lawyers acting for the  Respondent. 

Applicant also stated that, Respondent has taken over her office, and has stopped  payment of her salary but has failed to comply with clause 4.26.9 (a) (b) and (c) of  Human Resource Policy Manual, which provides that, a public servant shall cease  to be a staff of the organization where the post which that public servant is  encumbering is abolished. 

And that a public servant whose post is abolished shall be dealt with in the manner  provided in section 65 (2) (b) of the Labour Act, 2003] Act 561]

EXHIBIT ‘DMT12’ dated 14-11-2017, for instance, contains Respondents  preparedness to discuss the complain of the Applicant and the fact that they have  authority of the Board of Directors and the Chief Executive, but the evidence  outlined showed that, mediation did not succeed. 

And by that, Applicants stated that, her right to administrative justice, has been  flouted. It is her case that her transfer and subsequent decisions, actions and  directives, given by the Respondent were unlawful.

What Respondent has proffered in rebuttal are as follows: 

a. It was argued strongly that there is no provision in Applicant’s employment  contract that transfers are done by the Public Services Commission

b. And that, it is the Chief Executive Officer of N.H.I.A the Respondent is  empowered, to effect transfers as provided in paragraph 4:8.1 

c. It has been contended that: 

i. The appointing authority for the office which Applicant occupied, is the President of Ghana, as admitted by Applicant in her EXHIBIT “DMT1” [her own appointment letter] 

ii. And that in ARTICLE 195 clause 2 of the 1992 Constitution. iii. And in section 8 (2) of the Public Services Act, Act 482, are  provisions or the law, that Respondent relied in making the transfer. 

It is noted that, Respondent has said it acted within the confines  of the 1992 Constitution, Act482, a statue that established the Public Services Commission and Human Resource Policy  Manual. In effect, it has denied that, it acted beyond its powers,  when it transferred the Applicant  

iv. Still on the power of Respondent to make transfers, it has  contended that, the wording of the statute it relied on is like the  language used in the Constitutional provision. 

And by EXHIBIT DMT5’, which is Applicant’s own, document, Director and Deputy Directors of Respondent,  institution, exercise delegated powers, as provided in ART 1  (1.2).

Respondent submitted that, he who has power to appoint, has  power to remove 

d. (i) Respondent has also contended that in the exercise of that power which it  has, it acted fairly. 

As Applicant has failed to adduce evidence of unfair treatment. It said the  Head of Legal was also affected in the reorganization that took place. 

Therefore, inconvenience and unhappiness of Applicant cannot be sufficient  ground to hold that she was not treated fairly as she has suffered no  demotion by the transfer. 

(ii) Respondent contended that ART296 of the 1992 Constitution, on use of  discretionary powers has been followed, in the decision made, and the  presumption of public functions having been performed regularly, must be  made in Respondent’s favour. 

Besides the above, Respondent, stated in the affidavit in answer various reasons  why the application should not succeed. 

It has been contended Applicant does not have a fundamental right not to be  transferred. 

And the interpretation of paragraph 3.6 and 4.18.1 of EXHIBIT DMT6’ the Human  Resource Manual and meaning put on them are false. 

Because Respondent acted on authority and not on its own. In addition, it was  stated that, the President of Ghana is the appointing authority for the post she  occupied and as shown by EXHIBIT ‘DMT1’ her own appointment letter. 

Secondly, Respondent alleged the transfer of Applicant was to a comparable  executive position in the parent Ministry of Respondent Agency, therefore, she suffered no injury, prejudice nor a disadvantage. In deed it was said the transfer  was rather a promotion. 

But Respondent did not state that post, which is comparable and yet constituting a promotion, either in EXHIBIT ‘DMT4’, the transfer letter, nor in the affidavit in  answer. 

The written submissions and evidence led showed that Applicant had resigned  from the Ministry of Health, and was appointed to the Respondent institution, only  to be transferred back to the same Ministry. 

Whether the circumstances described above amount to inconvenience, or a source  of unhappiness, without any injury to the public officer involved requires further  scrutiny and findings will have to be made thereon. 

ANALYSIS  

As a matter of history, the English Courts [whose persuasive precedents have  shaped much of administrative law of Ghana i.e. public] have always relied on  the Doctrine of Ultra Vires.  

They have conceived of administrative power as derived power. It is seen  generally as power derived from the constitution or a statute. And this is a  paramount principle of public law, that public or Administrative bodies are  supervised by way of Judicial Review to ensure that they keep within the  bounds of their jurisdiction or area of allocated authority. 

This is an important incident of constitutionalism 

The doctrine of Ultra Vires is thus an important building block in the Court’s  construction of their jurisdiction, to exercise control of administrative action as  part of public law.

It is this doctrine which is the first ground on which Applicant’s case is  anchored. 

Whether Respondent has acted beyond its powers, will depend on the relevant  constitutional, statutory provisions, and regulations that govern its decision  making powers. 

The following are relevant: 

a) Articles 195 clause 2 and  

b) Act 482, that established the Public Service Commission, especially  sections 8(2) 

c) Act 560 that established the Respondent institution. 

d) EXHIBIT ‘DMT6’ Human Resource Policy Manual for Public Servants  which is a policy document, on the employment relation between public  servants and Government. And especially paragraphs 3.6, 4.18.1 and  4.26.9 

e) EXHIBIT ‘DMT1, 2 and 3, the appointment letters of Applicant.

f) EXHIBIT ‘DMT4’ the transfer letter of Applicant, issued to her by  Respondent. 

The principle to apply to arrive at the meaning of the documents tendered as  Exhibits could be found in case law, as stated below: 

I refer to what ABBAN J.A wrote in the case of BOATENG V. VALCO [1984/86] GLR 733 and the principle, was cited with approval in the case AGBESI V. G.P.H.A [2007/2008] 1SCGLR 469

He stated: 

“In attempting to construe the termination provisions regard  should be had to all the four clauses. 

That is the language used and all the provisions in the termination  clauses should be looked at as whole and every clause must be  compared with the other and one entire sense be made out of  them….” 

Lord Halsbury L.C in IN RE JODRELL, JODRELL V. SEALE [1890] 44 CHD 590 

Also wrote as follows: 

“I am called upon to express an opinion on what is the meaning of  this written instrument…. I am prepared to look at the instrument  such as it is, to see the language that is used in it, to look at the  whole…. And see [if I can] through the instrument what was in  mind of the testator….” 

Aharon Barak in his Book titled: PURPOSIVE INTERPRETATION IN LAW [Princeton university press, 2007] at page 329 wrote: 

“As I noted ….a contract is an integrative framework. Its different  parts are entwined and intermingled. Its various branches  influence each other. In interpreting …..a judge should on the one  hand view it holistically, as a whole, but on the other hand,  evaluate the connections between its various provisions as part of  the attempt to formulate the parties joint intent” 

The principle of purposive approach to interpretation is applicable to  constitutions, statutes and documents. A close examination of the  exhibits/documents, which provide for transfers, the authority that is in  charge of management of N.H.I.A, its powers, and the grade of officers who  are amenable to the control and management of the agency/N.H.I.A, must  be identified. 

Thus to my mind, the appointing authority of Applicant, who is a Deputy  Director, is the President of Ghana. 

He could delegate those powers acting in consultation, with the Board of  N.H.I.A and the Public Service Commission. 

But in cases of exigencies, Head of the Agency N.H.I.A, may effect  transfers, which may be internal, and to different locations or regions or to  other public services. 

Before a conclusion is drawn on whether the decision, directive or conduct  complained about is ultra vires, as ground in this application, it is imperative  to determine whether the decision is UNREASONABLE.

THE LEGAL FRAMEWORK  

Article 23 of the 1992 Constitution, has been cited in this application as well as  Article 33, I reproduce Article 33 (1): 

“where a person alleges that a provision of this constitution  on the Fundamental Human Rights and Freedoms has been, or  is being or is likely to be contravened in relation to him, then,  without prejudice to any other action that is lawfully available,  that person may apply to the High Court for redress”

“The High Court shall have supervisory jurisdiction over all lower Courts and any lower adjudicating authority, and may, in  the exercise of that jurisdiction issues orders and directions for  the purpose of enforcing or securing the enforcement of it supervisory powers” 

The mechanism for enforcement of Fundamental Human Rights and Freedoms is  as enshrined in ARTICLE 33 (1) cited supra, and in clause 2, provision is made on  how the rights could be effectively secured. 

The Supreme Court, in the case: AWUNI  V. W.A.E.C [2003/2004] SCGLR, construed these provisions, including Article 23, and I reproduce what the Court  said: 

“When ART 33 (1) gives to a person alleging that any of his  rights and freedoms under chapter 5 has been, is being or is likely to be contravened, the right to apply to the High Court  for redress, there is an irresistible presumption that such a  person may invoke the jurisdiction of the High Court by way of an application rather than a writ ……” 

In respect of ART 23, the Court held: 

“in my ………, the scope of ART 23 is such that, there is no  distinction made between acts done in exercise of ordinary  administrative functions and quasi-judicial administrative functions. Where a body or officer has an administrative function to perform the activity must be conducted with an  reflect the qualities of fairness, reasonableness and legal compliance….at the very last however….it includes probity, transparency, objectivity, opportunity to be heard, legal competence and absence of Bias or ill-will. In particular, where  as in this case, the likely outcome of administrative activity is of  panel nature” 

The jurisprudence on how to assess, whether a conduct, directive or decision, is  UNREASONABLE provides the perspective and the tool, in that regard. 

The common law of Ghana provides the definition, is as found in the case: 

THE REPUBLIC V. HIGH COURT, ACCRA EX PARTE: CHRAJ [ADDO INTERESTED PARTY] [2003/2004] SCGLR 

The Supreme Court, held that an unreasonable conduct, is one that suffers from: 

i. Illegality  

ii. Irrationality and  

iii. Procedural impropriety. 

On grounds of illegality, the Court held that the decision maker must understand  and correctly apply the law that regulates his decision making powers and given  effect to it. 

Secondly, by irrationality the Court defines this as what is known as: WEDNESBURY UNREASONABLENESS a concept inunciated first in the case ASSOCIATED PROVISIONAL PICTURES V. WEDNESBURY CORPORATION [1947] 2 ALL ER 1.R.03 

And a decision which is irrational it was explained is one which is outrageous in its  defiance of logic or accepted moral standard, that no person who had applied his  mind to the question to be decided, could have arrived at it, is a decision which is  outrageous. 

Finally, a decision suffers from procedural impropriety, is one which was arrived at  or made, by failing to act with procedural fairness towards the person who will be  affected by the decision. 

Furthermore, it has been explained that, susceptibility to control of the Courts will  arise if in making the decision, the public officer or institution failed to observe  procedural rules that are expressly laid down, in the legislative instrument by which  jurisdiction is conferred even where such failure does not involve the denial of  natural justice.  

I am of the view that the establishment of one or multiples of these conditions  enumerated by an Applicant or proponent that he/she, has not been treated fairly  by the action and decision made by administrative officials and institution [ in the  public sector] should be sufficient ground for a favourable finding. 

ANALYSIS 

EXHIBITS ‘1, 2, and 3 the appointment letters of Applicant and EXHIBIT  ‘DMT4’ the letter on transfer of Applicant showed that the decision being  contested is on that could be called an Executives action, rather than Agency  action.

Aharon Barak, in his work judges and judging, wrote this insightful words on the  situation described above. 

He stated there is no room for judicial intervention if the exercise of executive  authority, lies within the “ZONE OF REASONABLENESS”. And a Court must  not impose it preference on implementation of statute. 

He stated further that the key, and primary consideration of the Court must be the  reasonableness of the decision. 

Put simply, the executive must act reasonably, for unreasonable act is an unlawful  act. 

In continuation he observed that in many cases, the Test for an unreasonableness  allows for only one possibility which the Executive must chose. And sometimes  there may be several possibilities to choose from thereby creating a “ZONE OF  REASONABLENESS”. And that the executive has freedom of choice within that  range. He opinied that is part of the separation of powers, but it also means the judiciary must determine the limits of the “ZONE OF REASONABLENESS”. 

And it is that zone of reasonableness that sets the boundaries for determination of  the scope of Judicial Review of executive implementation. 

In continuation Aharon Barak, made reference to Julius Stone, as the person who  developed the concept of categories of illusory reference in his work. 

THE PROVINCE AND EUNCTION of LAW 171 (1950), and in which it has  been stated Reasonableness is neither a physical concept but a normative one. 

And therefore, reasonableness means that one identifies the relevant considerations  and balance them according to their weight.

Indeed, it is said reasonableness is an evaluative process, not a descriptive process.  And it is not a concept that is neither defined by deductive logic nor mere  rationality 

Because, a decision is reasonable if it is made by weighing the necessary  considerations including fundamental values in general and Human Rights in  particular. As nothing is reasonable in itself. 

In conclusion, he wrote, whether an administrative decision is unreasonable  depends on the bounds of the zone of reasonableness. And the abounds of the zone  may depend on the characteristics of the authority being exercised, the language  and purpose of the authorizing statute, the identity of the administrative Agency,  the issue being regulated by the authority. Whether the authority is exercised  primarily based on factual findings, policy considerations, or professional  evaluation such as medical or engineering decisions. 

The zone of reasonableness he stated varies depending on these characteristics, and  so sometimes the zone is narrow and sometimes it is wide. 

Following from the above, and based on the fact that reorganization and  restructuring of its working organogram [as in EXHIBIT DMT7] has been cited for  the decision to transfer the Applicant. And the fact that it has led to the abolition of  the office that Applicant held, with a view to achieve, efficiency in the  management and control of (N.H.I.A) the organization, that decision must be  viewed as falling in that wide zone of reasonableness, given the technical nature of  the work the organization performs. 

The decision to transfer Applicant suffers/is affected by procedural impropriety,  in as far as it sought to transfer and declare, the Applicant redundant at the same  time.

The Respondent has admitted that the decision taken has the effect of Redundancy,  and when redundancy occurs the post occupied by the employee is abolished, and  he/she ceases to be an employee. 

In the public service, when the decision is taken, ART 23 of the 1992 Constitution,  which provides for Administrative Justice, requires that, a fair transparent and  unbais, hearing must be conducted, because a public servant’s employment cannot  be terminated without just cause. 

On 25-03-2019, in a deposition made in answer of this application, for the first  time Respondent argued, Applicant had abandoned her post. 

But on 16-10-2017, as found in EXHIBIT ‘DMT7’ [and which has not been  denied] counsel for Respondent who has always been in charge of this case  and who had been involved in discussions, that pre-dated the litigation [Mr.  Charles Zwennes] had admitted that by abolition of the post of Applicant, in the circumstances in which it happened, section 65 of Act 651, the Labour  Act, on redundancy has been triggered. 

He wrote. 

“Sir you correct and we do agree with you to the extent that the  abolition of that posting under the circumstances of organizational restructuring renders section 65 (2) (b) of the Labour Act  2003……….applicable…..” 

Counsel had the mandate and authority of Respondent to make the admission, as  shown by the correspondence on the matter. 

Respondent cannot be permitted, to now say after more than two years, thereafter  that applicant had abandoned her post.

Therefore, that submission is an afterthought. 

The Respondent is estopped both by election, conduct and written document from  choosing what is contrary to its declared position. 

In the conditions of service document of Applicant, which binds Respondent as  well, TRANSFER, is defined as movement of a public servant from one of the  services within the Public Services to another or from one class of post to another  class of post within the same or different service. This may involve a change of  designation and duties. The Head of Organization shall approve the transfer of a  public servant where the exigencies of the service require the transfer to be made. 

Thus by definition a TRANSFER cannot result in REDUNDANCY, but  Respondent stated in EXHIBIT DMT7, that Applicant was being transferred to the  parent Ministry, and organizational restructuring was given as the reason. 

The Labour Act, 2003, Act 561 defines and provides in section 62 on what  organizational restructuring means and the effect on an employee. 

Redundancy is one of the grounds for fair termination of employment, under the  Labour Law. Section 62, on redundancy provides that, redundancy refers to a  situation in which an employer no longer requires the services of a worker, thereby  necessitating the termination of the employment of the worker in question. The  effect of a scheme of redundancy is that it pre-maturely terminates the contract of  the worker affected by it, and thereby resulting in such worker losing security of  employment. 

That is why the law [Act 561] on redundancy recognizes and protects the right of  employer to implement a scheme to re-organize etc.

It is apparent that there is a conflicting situation involved for the employee and the  employer. And therefore the law provides that a balance must be struck. There is a  duty to inform, consult and compensate, a worker affected by redundancy. And the  compensation payable is not paid or due, to an affected worker because of  unlawful termination of the contract of employment. 

FINDINGS  

1. The Respondent which is an agency of the ministry of Health and the  Executive, exercises delegated powers. EXHIBIT ‘DMT4’ the transfer letter  conveyed sufficiently that Respondent agency was acting on the directive of  the Executive or the President, the appointing authority 

2. The decision of organization which affected Applicant, cannot be interfered  with by the judiciary. No public servant has a Human Rights not to be  transferred or immuned from redundancy. 

However, when the decision is made, the effect of it must be addressed in  accordance with conditions of service documents/contract of that public  servant. 

3. The decision that affected the Applicant is not ultra vires. 

4. The Applicant has not abandoned her post rather she had been affected by  redundancy. A worker who has effectively and constructively, been declared  redundant, cannot be a worker on transfer. The two positions are conflicted  as the former position, signifies Termination and the latter continuation of  the contract of employment but at a different geographical, sector, division  etc. of the Public Service. 

The Applicant has established issue ‘4’ of the triable issues.

BY COURT 

1. The application is granted in part. 

2. I direct that within 21 days after service of this judgment on Respondent/it  shall take steps to calculate and pay Applicant her entitlements as a public  servant who has been affected by redundancy and in accordance with her  contract of employment. 

3. I grant an order of mandamus to compel the performance of the order given supra (paragraph 2) 

4. Cost of GH¢5,000.00 is awarded in Applicant’s favour and against the  Respondent. 

(SGD) 

H/L NICHOLAS M.C. ABODAKPI 

JUSTICE OF THE HIGH COURT.

COUNSEL

GODWIN TAMEKLO WITH SETH NYAABA FOR THE APPLICANT

WILLIAM KAFUI ASSEM HOLDING BRIEF FOR CHARLES ZWENNES FOR THE RESPONDENTS