DAVISON ADOM OBERY & ARHIN SUADWA ANTHONY V. IGP

JUDGMENT

MENSAH, J.

The plaintiff claim is for: 

(a)A declaration by the court that their dismissal was unlawful and that same be set aside and Plaintiffs reinstated. 

(b)A declaration that the presence of the Divisional Commander as a witness at the service enquiry trial of the plaintiffs  Impugned against the rule of natural justice since he was a member of the Upper east Disciplinary Board that recommended the 14 days confinement of the 2nd plaintiff and their dismissal from  the service. 

(c)Any other relief that the court may consider appropriate. 



Per the claim filed by the plaintiffs in this court the following facts  emerged. 

The plaintiffs were service personnel of Ghana Police Service until their  dismissal from the service in 2012. Prior to this they were both stationed  at Bawku District of the Ghana Police Service in the Upper East Region of  Ghana. 

On the 18th day of July, 2010 the 1st plaintiff was at a check point at  Missiga when the 2nd plaintiff G/Constable Arhin called to inform him  that he had information that some people were engaging in the  smuggling of fuel at Pusiga filing station to Burkina Faso . Upon receiving  the information the plaintiffs moved into a hideout to see whether the  information received is credible or not.

  

The plaintiffs were there when they saw the smugglers turned up with  four donkey cartes with each containing 25 jelly cans bringing the fuel to  I00 jerry cans. 

According to the 1st plaintiff he tried calling their station officer but his  line could not get through and because he was not having the District officers telephone number he called the Divisional Crime officers and  informed him about the arrest. 

 

The divisional crime officer told the 1st plaintiff that he would inform the  Divisional Commander Chief Superintendent Peprah Boadu to see whether the service vehicle was available or not. According to the  plaintiff at about 1.50 am on the 19th July 2010 one Rasta and there others come to claim “ownership of the fuel that was being smuggled  out to Burkina Faso. 

The Plaintiffs arrested the smugglers for the smuggling of fuel and a  breach of the curfew which was then in force within Bawku and its environs. 

The plaintiffs avers that not long after Rasta had come to claim  ownership of the fuel being smuggled, the District Commander appeared  at the scene and asked whether they (plaintiffs) were CID ment to make  arrest and demanded to know what the plaintiffs were doing there. 

The plaintiffs say that the District commander directed them to join the  service vehicle and took them back to Bawku by leaving the smuggled  goods and the men arrested behind. According to the plaintiffs they  explained the incident to the said officer but he would not agree and later had them transferred to Pwalugu and Zuarangu respectively. 

The plaintiffs aver that later after they have been brought to Bawku, the  District commander called suspect Rasta to bring the items but he only  brought 10 jelly cans. 

The plaintiffs contends further that later they received signal message  that disciplinary action had been taken against them for extortion of  GHC500.00 from the arrested smugglers, communication of the incident  to an unauthorized person a matter affecting the service and leaving a  duty post without permission. The 2nd plaintiff was also charged with an  offence of being absent from barracks 

The plaintiffs averred further, the charges preferred against them is a  thumped up charges and further stated that their dismissal is unlawful  and activated by malice from the Divisional commander. The plaintiffs  further states that the Divisional Commander for Bawku who is a member of the Upper East Disciplinary Board came to testify on the  incident. 

It is based on these facts that the Plaintiffs have mounted the instant suit  claiming against the defendants per the reliefs endorsed on their Writ. 

The defendants being the I.G.P and the A.G upon being served with the  writ entered an appearance and subsequently delivered their defence  denying the basis of the plaintiff claim. Per the defence filed the  following facts emerged. 

That on the date of the incident the 1st defendant was performing duties  together with No.43842 G/constable Solomon Kitinkewen and No37978  G/Corporal Richard Bentil at a fixed duty when he unceremoniously left  without informing his colleague. 

The defendants averred that when the plaintiffs chanced on the  smugglers it was incumbent on them to notify his seniors in rank and not  to act the way they did when 1st plaintiff was on a fixed duty. The  plaintiffs according to the defendants also failed to make entries in the  station dairy before embarking on the operation contrary to police  practice and procedure . 

The defendants denied that the smugglers were arrested at their hideout  but indicated they had been arrested at the Pusiga filling station.  

The defendants denied leaving the smugglers and the goods behind and  stated that upon the arrival of the Bawku District Commander and the  Crime officer they saw the plaintiffs together with ten(10) jelly cans of  petrol, a donkey cart and donkey meant or intended to be used for the  conveyance of the fuel.  

The 1st defendant contends that it was around 10pm on the day of the  incident that he had information that the plaintiffs had arrested some  smugglers at the Pusiga filling station. 

The defendant say further that upon the arrival at the scene by the senior  officers the plaintiffs never told the said officers that they had also  arrested the smugglers for breaching the curfew. 

The defendants also contend that Rasta was who to be brought to the  station after the incident bolted away. According to the defendants even  though the Divisional Commander gave evidence in their service enquiry  of the plaintiffs, he did not sit as a member of the Regional Disciplinary  Board (RDB),and they denied breaching Regulations 10(4) of LI 993. 

In conclusion, the defendants stated that the dismissal of the plaintiffs  upon the institution of the service enquiry had been done according to  laid down principles, good faith and not actuated by any malice as being  alleged by the plaintiffs. The defendants accordingly asked the Court not  to grant the reliefs of the plaintiffs. 

The plaintiffs joined issues on the entire statement of defence and stated  that 1st plaintiff as a senior in rank at the duty point that day informed  his junior officers before leaving the duty point to arrest the smugglers  and further that message received demanded he took immediate action  in order to arrest the smugglers before reporting to his superior officers.  

The 1st plaintiff states that there is no strict rule pertaining police which  prevents a police service personnel from arresting a suspected criminal  whilst on a fixed duty. 

The plaintiffs say that the evidence in the matter did not demand the  recording in the entries of their movement before they embark on the  arrest. 

The plaintiffs deny arresting the smugglers with 10 jelly cans and at a  filing station but in a bush 300 meters from the Oando filling station. The  plaintiffs maintained that the District Commander of Bawku came to see  the 4 donkey carts with each of the cart carrying 25 jelly cans of fuel and permitted them to leave. That to them explains how Rasta was able to  get away. 

The plaintiffs maintained they had informed the smugglers of the breach  of curfew and states further that it was the District Commander who after  allowing the smugglers to leave later called on them to bring only 10 jelly  cans of fuel. 

Based on the pleadings filed by the parties the Court adopted for trial the  following issues: 

(a) Whether or not the 1st plaintiff who was at duty post on the 18th July, 2010 could proceed to effect the arrest of the smugglers of 100 jerry cans of fuel with the 2nd plaintiff upon receiving information that some people were smuggling fuel from Ghana to Burkina Faso. 

(b) Alternatively whether or not police personnel on receiving   information that some people were committing offence could go and effect their arrest of such person not withstanding that such  police personnel is at a fixed duty post. 

(c)Whether or not upon receiving information that the smugglers  were smuggling fuel to Burkina Faso, the plaintiffs first have   to inform their senior in rank before any action could be taken.

(d) Whether or not the arrest of the smugglers by plaintiffs on the  18th July, 2010 was unlawful arrest carried out by the plaintiffs.

(e) Whether or not the plaintiffs upon the arrest of the smugglers  informed the Divisional Crime Officer of Bawku Division.

(f) Whether or not the plaintiffs arrested the smugglers with 100 jerry cans of fuel having smuggled to Burkina-Faso.

(g) Whether or not the 2nd plaintiff can be sanctioned by the  Police Central disciplinary Board having been punished  by the police Administration first in respect of the arrest   of the smugglers who were smuggling fuel to Burkina Faso. 

The law relating to the standard of proof in all civil actions without  exception was stated to be proof by prepondence of probabilities, having  regard to section 11(4) and 12 of the Evidence Act 1975 (NRCD 323). 

This means that the successful party must show that his claim is on one  probable than that of other. 

See Adwubeng v. Domfeh (1996-97) SCGLR 660.

In the instant case the plaintiffs who assert that they have been  unlawfully dismissed as well as alleging breach of the police service  inquiry which assertion has been denied by the defendants, have to  adduce evidence sufficient to establish prima facia case as required by section 14 of the Evidence Act, 1975. 

It was only when they have succeeded in doing so by their evidence  established facts from which an inference can reasonably be drawn in  her favour that the burden of producing evidence would shift to the  defendants. For, if the plaintiffs did not produce that kind of evidence a  ruling would be given against them on that issues. 

To meet the test of sufficiency the plaintiffs (or the party with the burden  of producing evidence) is entitle to “rely on all the evidence” on the issue  and need not nest only on their evidence to establish the point that the  defendants have summarily dismissed them and have also breached the  police service enquiry by allowing a member to give evidence as a  witness.

The plaintiffs in order to discharge the burden placed on them gave  evidence by themselves and never called any witness whiles the  defendants called the then District Commander for Bawku as its only  witness. 

It is after the close for the hearing of this case that this court is being called upon to determine the armbit of this case. 

Per the pleadings filed by the plaintiffs, they averred in paragraph 5 that  they had gone to the scene upon an information that some persons were  smuggling fuel outside the country to Burkina Faso. 

In their paragraph 9 of the statement of defence the defendants  admitted the act of smuggling but denied it took place according to the  plaintiffs at a hideout but maintained same took place at the filling  station at Pusiga. 

Judging from the evidence and the pleadings I therefore find as a fact  that on they day of the incidents certain persons were engaging in the  act of smuggling and were confronted by the plaintiffs who had either  came from their duty post or from their house. I wish to determine issue  (a)and (b) raised together. 

In that regard both police officers and civilians were under a duty to  prevent the commission of Crime which if allowed to go on would not  only be counter productive but would lead to serious economic  challenges to the state. 

To that extent anyone including an officer on a duty or not had the power  to effect the arrest of person or persons engaging in the said nefarious  activity and bring them to book. In my view the failure to prevent the  commission of an offence is also an offence in itself. 

I would also go on to say that as police officers the plaintiffs were to  inform their superiors anytime that they were embarking on an arrest or leaving their station unless the exigency of the situation demands  otherwise. 

This in my view is to ensure orderly conduct of their operations and also  to ensure discipline and orderly performance. That would bring me to  the next issue raised – Whether or not the arrest of the smugglers on the  18th July, 2010 by the plaintiffs were unlawful. 

The plaintiffs avers that as police officers when they chanced on the  information that certain persons were smuggling fuel outside Ghana into  Burkina Faso, they went into hiding and arrested them and were about  to send them to the police station together with the exhibits when DW1  the Bawku Divisional Commander and others came to meet them at the  scene and later accused them of extorting bribes from the smugglers  leading to their dismissal after a service inquiry. 

The defendants on the other hand says that they received an information  that certain officers had arrested some smugglers and were demanding  they pay them GH₵500.00 an act which had become rampant in the area  and went and arrested them. 

In my view the sifting of the evidence on record would enable this court to determine whether or not the arrest by the plaintiffs of the smugglers  on the 18th July 2010 was unlawful. 

The 1st plaintiff gave evidence that he was at Misigah check point on the  day of the incident when he received the information about the  smuggling of fuel. 

The 1st plaintiff had this to say under examination in chief  

…… At the checkpoint I had a call from the 2nd plaintiff that he has  received a call from an unknown person that some people from Burkina  were smuggling fuel from Oando filling station to Burkina Faso and they  were about to go……

I asked the 2nd plaintiff to come and we both went and hid in a bush. We  were there when we saw the Burkinabe with 4 donkey carts containing  fuel with each cart containing 25 jelly cans making hundred in all. After  that I called the Divisional Crime Officer and informed him about it and  he asked us to go to Pusiga police station. 

The said evidence by the 1st plaintiff had been corroborated by the 2nd plaintiff. 

According to him he had called the 1st plaintiff upon the tip of because  he (1st plaintiff) was closer to the scene.

 

He told the court the 1st plaintiff was able to accompany him because they were 3 manning the checkpoint that date. 

2nd plaintiff further told the court that the 1st plaintiff informed the  Bawku Divisional Crime officer when they sighted and arrested the  smugglers. 

The totality of the evidence leaves me in no doubt that there had been a  commission of an offence which the plaintiffs had been made aware and  trying to prevent. 

In my view to make the act of the plaintiffs to be unlawful there ought to  be some evidence forth coming indicating the presence of the plaintiffs  were to perpetuate an unlawful act. 

That is to say they had gone to the scene of crime to extort monies from  the smugglers by using the colour of their office. 

I say so because the mere presence of the plaintiffs at the scene of Crime  does not mean they had gone there to commit an offence. 

That act of extortion peddled against the plaintiffs in this Court came  from D.W.1. D.W.1 told the Court that they had received this information from people and moved unto the scene of crime and  confronted the plaintiffs. 

This evidence by D.W.1 meant he was not present when the said  extortion took place. It needed someone to have told D.W.1 this piece  of evidence. 

D.W.1 has never given the source of this information. As of now nobody  has come forward to lay credence to this fact. The only evidence I have  seen on record is that of the ACP Boadu Peperah. His evidence seemed  to lay credence to what DW1 told this Court. However the evidence of  ACP Boadu Peprah as given before the police enquiry report tendered in  this case as Exhibit ‘Suggested he has also received the said information  through informants. That to me also suggested he was also not present  when the incident took place. 

To that extent what both DW1 and ACP Boadu Peprah related about  because becomes hearsay in so far as same was being used to establish  the fact that there has been extortion from the plaintiffs by using certain  names to do so. 

In my view in so far as the plaintiffs were denying committing the act of  extortion they ought to be confronted with their accusers which the  police commander in the Region failed to do. 

Having so failed to do it stands to reason that they could not be taken to  have extorted any monies from any person or group of persons. 

On the other hand, the plaintiffs have told this Court the circumstance  under which they have found themselves at the scene of smuggling when  they had a tip off. This they followed up and arrested the smugglers after  they had laid ambush for them.

They gave evidence that when they arrested the smugglers at the scene  of Crime, they informed the Crime officer.

This fact have been corroborated by the said Crime officer DSP Ademu  Seidu. Even though the said officer did not give evidence in this Court he  appeared at the police enquiry to buttress the evidence of the plaintiffs. If that was the case then how could the act of the plaintiffs be unlawful.  To that extent the act of the plaintiffs could not have been unlawful. 

There is prepondence of evidence that the plaintiffs had called the Crime  officer before DW1 and ACP Boadu Peperah came to the scene. 

There is evidence from the plaintiffs that it was 4 donkey carts which  they had arrested on the day of the incident with each of the carts  carrying 25 gallons of fuel bringing the total fuel to 100 gallons. 

According to the plaintiffs when DW1 and the other officers came to the  scene they left the smugglers and took them to Bawku and that it was  later that the smugglers were asked to bring the fuel but only brought 10  gallons. 

In my view the evidence given by one of the parties could have been the  truth about the quantity that was being smuggled. 

There is no doubt in my mind that the smugglers had been arrested at a  place outside the Oando filling station. Because the plaintiffs had  received a call about the smuggling and to ensure the truth or otherwise they had to ascertain the veracity of the information. In this regard the  evidence of 2nd plaintiff struck me as very instrumental.  

He told the Court they have been receiving such reports which at times  turned to be false. So in my view it would not be far from the truth that  a person faced with that situation would study the operations before  determining whether it was smuggling that was going on. 

It would not be out of place for persons such as the plaintiffs to have  gone into hiding to arrest the smugglers. There is some evidence in this Court which I accept that the smugglers had been left behind when DW1  and other officers came to the scene.  

To the extent that Rasta had even bolted away, any evidence  subsequently obtained could have been tainted. In so far as the fuel had  not been taken to the police station immediately that DW1 and others  come to the scene, what had been brought could have not been the  whole.  

What is more I do not see the economic sense in the smugglers taking  only 10 gallons on the cart they were driving. I did not believe DW1 when  he told me this because in the first place it would not make any economic  sense to smuggle only 10 gallons of fuel from Pusigah to Burkina Faso.  To that extent the evidence of the plaintiffs are preferred to that of the  defendants.  

There is evidence on record that the 2nd defendant had been confined in  the barracks for 14 days prior to the Disciplinary having been taken  against him. 

The plaintiff never gave any reason in the evidence how he could not be  proceeded on the Disciplinary hearing even after the 14 days  confinement and as such I am unable to find otherwise. 

The plaintiffs are asking for declaration to the effect that their dismissal  was unlawful and the same be set aside and they be reinstated. 

It is trite that the Court would not grant reinstating unless some spewal circumstance exist. 

The correct legal principle in this regard would be the following passage from Finances v. Municipal councilor of Kuda Lumpar (1962) I W.L.R  14 11 at head note.  

 “where there has been a purported termination of contract of service, a declaration to the effect that the contract still   Subsisted would rarely be made source the general principle of law was that the courts would not grant specific performance of contracts of employment unless special circumstances can be   shown”. 

In the ordinary case of master and servant, however the repudiation or wrongful dismissal puts an end to the contract, and a claim for damages arise. 

It is necessarily a claim for damages and nothing more on the damages to be awarded Jenkins, In vine v. National Aock labour Board (1956) All ER 8 CA, at page 261. 

“……the damages are to be measured by the amount of   Wages or salary which the servant has been prevented  From earning by reason of his wrongful dismissal.   -----See Haliburys laws of England (3rd ) Vol. 25, page   8523 paragraph 995. 

 -----Mayne and megrefor on Damages (12th Fd) paragraph 522-523. 

I have perused the evidence in its totality and see no justification for the plaintiffs dismissal. If anything at all the plaintiffs ought to have been commended rather than chastised.  

Accordingly, I would hereby declare that the dismissal of the plaintiff were unlawful and consequently I would set same aside.

In my view the plaintiff would be entitled to all entitlement due them before their dismissal. 

I am unable to grant the plaintiffs their 2nd relief because there is no evidence that ACP Boadu Peperah who gave evidence in the service enquiry also sat as a panel member. 

This is not borne out from Exhibit ‘C’ tendered by the plaintiffs in this Court. 

By virtue of Article 191 of the 1992 constitution, the plaintiff as public officers could not have been removed or otherwise punished without just cause. 

I would have their removal set aside and order their immediate reinstatement in the service. 

Cost is assessed in favour of each of the plaintiffs at GHC20,000.00. 

 (SGD) 

DANIEL MENSAH  

JUSTICE OF THE HIGH COURT

COUNSEL

J. K. YEBOAH ESQ. FOR PLAINTIFFS

AKWETEY BONSU FOR DEFENDANTS.