MRS. ELIZABETH BRUCE V. KORLE-BU TEACHING HOSPITAL

ADDO, J.

The Applicant, per her main relief seeks

(i) A Declaration that the decision of the Board of the Respondent dated 29th January, 2015, interdicting the Applicant and punishing her with payment of half of her salary as well as the withholding of all allowances, is manifestly unlawful and in violation of the Applicant’s Fundamental Human Rights under the Constitution of the Republic of Ghana, 1992. By reliefs (ii) (iii) and (iv), which are consequential reliefs flowing out of the Applicant’s relief (i), the Applicant prays as follows:

(ii) An order of certiorari to bring in the decision of the Board of the Respondent complained of in (i) above and quash same as being in violation of due process and the relevant laws for the Ghana Health Service and Teaching Hospitals in the Republic of Ghana.

(iii) An Order of prohibition directed at the Board of the Respondent forbidding it from instituting disciplinary measures against the Applicant on the strength of the unlawful letter of interdiction dated 29th January, 2015, served on the Applicant herein:

(iv) An order of mandamus compelling the Board of the Respondent to allow the Applicant to resume normal duties as Director of Pharmacy of the Respondent: There are yet other reliefs (v), (vi), (vii), (viii) and (ix) which are as follows:

(v) A declaration that the purported forensic audit conducted by A. D. and Associates into the operations of the Korle Bu Teaching Hospital Pharmacy is in contravention of the relevant laws governing the audit of accounts of the Ghana Health Service and Teaching Hospitals in Ghana.

(vi) An order of prohibition directed at the Board of the Respondent forbidding it from instituting any disciplinary measure or the so-called Administrative Enquiry against the Applicant on the strength of the unlawful Forensic and Investigations Audit Report presented by A. D. and Associates.

(vii) General damages.

(viii) Punitive costs of litigation.

(ix) Any further order(s) as to this Honourable Court may seem meet.

The application has been resisted. The reasons for the opposition, per the Respondent’s affidavit in response filed on 22nd May, 2015, are as follows:

That the Respondent (per its paragraphs 13 to 19), although conceding that it carried out a forensic audit enquiry into the operation of the finances and account of the Respondent institution by a private firm, on the authority of the Minster of Health, it contended that both the Minster and the Board of the Respondent which authorised the audit have since been changed. That the Applicant in her responses to the charge draft report admitted, to a large extent, all the findings of the report and undertook to avail herself for any further interrogations, when necessary. The Respondent further contended that by the Applicant’s position as Director of Pharmacy, wide financial and administrative duty were expected of her, in the light of the administrative and financial lapses of the department. It was the further contention on the Respondent that the administrative enquiry to be constituted into the forensic Audit Report was to better equip the hospital board and management with insight into administrative failures and provide measures to curb same.

The Respondent held the view that the administrative enquiry was not to punish any staff and that was why, as per its paragraph 32, it denied legal representation to the Applicant at the proceedings of the administrative enquiry since the process was in essence “an internal inquest to find lapses and improve the system”.

That the Applicant’s interdiction was “a necessary, discretionary and legally appropriate step within the powers of the Board” in view of the audit report and the Applicant’s own response. That since the interdiction, the Applicant had not protested as the decision was discussed with her before its implementation. The Respondent further countered that the Applicant had also not asked that she returned to work because she understood the process as ongoing.

In conclusion, the Respondent stated that the Board had no intention to punish any of its staff, including the Applicant, as a result of the administrative enquiry since that right to punish may only be carried out by the Economic and Organised Crime Office (EOCO) who was due to commence its investigations just after the Applicant’s interdiction. That the Applicant at all material times prior to her interdiction was fully aware of the establishment of an administrative enquiry into the matters uncovered by the Forensic Audit. But the vexed question is whether the decision of the Board of the Respondent dated 29th January, 2015, interdicting the Applicant and alleged to constitute punishment of her in view of the payment to the Applicant of half of her salary and withholding of her allowances, is manifestly

(a) Unlawful and

(b) In violation of the Applicant’s Fundamental Human Rights under the 1992, Constitution.

In answering the question, I have critically examined the content of Exhibit ‘H’ dated 29th January, 2015. It is headed “RE: INTERDICTION FROM POSITION OF DIRECTOR OF PHARMACY”. So that is the evidence that the Respondent interdicted the Applicant per a letter dated 29th January, 2015.

What are the decisions of the Respondent under attack by the Applicant?

Exhibit ‘H’ has them as follows:

(i) You are hereby, with immediate effect, interdicted from your position as Director of Pharmacy Korle-Bu Teaching Hospital.

(ii) Your interdiction will be in force for a maximum of 6 months as stipulated by law, and during this period.

a. All your allowances will be withheld.

b. You will receive half your monthly salary.

c. An Administrative Enquiry Committee will be set up to establish culpability if any

d. The Report of the Forensic Audit will be referred to the Bureau of National Investigation (BNI) for further investigation to establish criminal culpability if any.

e. You are expected to make yourself available during this period to support further investigation being conducted as part of the Administrative Enquiry and investigations by BNI. (The emphasis is mine).

In her application, the Applicant grounds the attack on the decision just referred to in Exhibit ‘H’ on

(a) Illegality, want of power under the Ghana Health Service and Teaching Hospitals Act, 1996 (Act 525), the Civil Service Regulations, 1960 (L.I. 47) and violation of the Fundamental Human Rights guaranteed by the Constitution.

(b) Procedural impropriety, unreasonableness and arbitrariness.

How then does the decision in Exhibit ‘H’? I have quoted supra, constitute an illegality and want of Power under Act 526 and L.I. 47 and the other grounds? The Applicant was an employee of the Korle-Bu Teaching Hospital and at the date of her interdiction or the events giving rise to the instant suit, Director of Pharmacy, having been appointed to the office on 1st March, 2008. The Applicant’s employer is established under the Ghana Health Service and Teaching Hospitals Act 1996 (Act 525). It is therefore clear that the existence of the Respondent is governed and regulated by Act 525. The Law that consequently governs the relationship between the Applicant and the Respondent as far as the decision in Exhibit ‘H’ is concerned should be looked for in Act 525, more so, when the grounds for this application is based on law. Section 1 of Act 525 states:

There is established by this Act, the Ghana Health Service referred to in this Act as “the Service.”

Part II of Act 525 provides for Teaching Hospitals and the continued existence of its Boards, Objects and Functions, amongst others. Section 54 (1) of Act 525 provides for the making of such regulations as the Minister considers necessary for giving effect to the provisions of this Act, of course, subject to the recommendations of the Council or a Teaching Hospital Board. The regulations are to be effected by a Legislative Instrument. Section 54 (3) of Act 525, however, provides as follows:

Until provision is made for the Service under this section, the Civil Service Regulations, 1960 (L.I. 47) applicable to the members of the Civil Service shall apply to members of the Health Services subject to the provisions of this Act until replaced by regulations made under this Act.

It is important to note that a diligent search for regulations made pursuant to Section 54 (3) of Act 525 yielded no evidence of the existence of the regulations envisaged under the Act. I have also not been cited to any such regulation pursuant to Section 54 (3) of Act 525 by respective Counsel and indeed Counsel for the Applicant contends that there is no such regulations made under the Act. The applicable regulation governing the relationship between the parties in this suit in the resolution of the dispute before the Court is therefore L.I. 47, that is, the Civil Service Regulations, 1960. As far as the Applicant’s interdiction falls for attack in this suit, the relevant provision applicable to her is Section 54 (1) of L.I. 47. The provision states as follows:

In any case where the disciplinary authority empowered to dismiss a Civil Servant in Categories B, C and D (1) considers that the interest of the public service requires that the Civil Servant should cease forthwith to exercise the powers and functions of his office, the disciplinary authority may interdict him from the exercise of those powers and functions if proceedings which may result in his dismissal are being taken or are about to be taken or if criminal proceedings are being instituted against him. (The Emphasis is mine).

This provision enables the Applicant in this suit to be interdicted from exercising those powers and functions of her office if proceedings which may result in her dismissal are:

(a) being taken or,

(b) about to be taken or,

(c) if Criminal proceedings are being instituted against her.

The Applicant was interdicted on 29th January, 2015. The question is was any proceedings being taken against her, or about to be taken against her, or were criminal proceedings being instituted against her prior to that date of 29th January, 2015 and in accordance with Section 54 (1) of L.I. 47? The events that occurred prior to Exhibit ‘H’ or 29th January, 2015, the date of the Applicant’s interdiction, are contained in Exhibit ‘A’. Exhibit ‘A’, is the Minister’s letter to the Chairman of the Respondent’s Board requesting for the conduct of a Forensic Audit and the terms of reference thereof. The letter is dated 12th June, 2014.

The next event is Exhibit ‘B’ which is the Minister’s letter again to the Respondent’s Board Chairman for the grant of approval for the Head of Pharmacy and all substantive players in the department to proceed on leave with immediate effect to enable the Auditors conduct the exercise. Exhibit ‘B’ is dated 4th July, 2014. Exhibit ‘C’, is a letter under the signature of the Respondent’s Board Chairman to the Applicant herein requesting her to proceed on leave until the completion of the Forensic Audit effective 18th July, 2014. Exhibit ‘D’, is a reply to Exhibit ‘C’ from the Applicant to the Respondent’s Board Chairman stating that she would like to handover properly to her deputy in accordance with Civil Service regulations and without which she cannot proceed on leave. Exhibit ‘D’ is dated 18th July, 2014. Exhibit ‘F’, is the Forensic and Investigations Audit between 18th January, 2010, and 31st May, 2014. Can it be said that Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’ and ‘F’ constitute proceedings within the contemplation of Section 54 (1) of L.I. 47? Section 61 of L.I. 47, categorises proceedings into formal and summary proceedings against civil servants.

Section 61(1) states:

Proceedings against civil servants in Categories B and C and against civil servants in Category D (i) where the charge or charges, if proved, may warrant the imposition of a major penalty, shall be in the form of formal proceedings.

Section 61 (2) states:

Disciplinary proceedings against Category D (1) civil servants where the charge or charges, if proved, may warrant the imposition of a minor penalty, and against Category D (2) civil servants, for all offences shall be in the form of summary proceedings.

From the evidence before the Court, no proceedings whatsoever preceded the Applicant’s interdiction. Indeed, no criminal proceedings were being instituted against her. Within the meaning of Section 54 (1) of L.I. 47, the Respondent could not be heard to say also that proceedings were about to be taken against the Applicant.

At paragraph 4 (c) and (d) of Exhibit ‘H’ the Respondent states:

Paragraph 4 (c) An Administrative Enquiry Committee will be set up to establish culpability if any Paragraph 4 (d)

“the report of the Forensic Audit will be referred to the Bureau of National Investigations (BNI) for further investigations to establish criminal culpability, if any. The question is, does the statement “An Administrative Enquiry Committee will be set up ...” mean the same as “proceedings ....are about to be taken”?

In my view, the phrase “will be set up” and “about to be taken” are not the same in the terms envisaged under Section 54 (1) of L.I. 47. To my mind, the phrase “will be set up” look to the future indefinitely, whilst the phrase “about to be taken” is contemplative of an immediate step to be taken and not indefinitely. It is my humble view therefore that, the condition precedent for the process that would lead to the termination of the Applicant’s employment which is the requirement of proceedings being taken or about to be taken or a criminal proceedings being instituted was not adhered to or complied with by the Respondent. Thus, Section 54 (1) of L.I. 47 that governs the employment relationship between the Respondent and the Applicant was breached thereby. There is no evidence before the Court that before the institution of the instant action, the Respondent took any step in fulfilment of its own Exhibit ‘H’, paragraph 4 (c) or even 4 (d). This fortifies the position that section 54 (1) of L.I. 47, was not complied with by the Respondent.

The Applicant says that her Fundamental Human Rights have been violated under the Constitution of the Republic of Ghana, 1992. The Applicant filed on 22nd May, 2015, for the instant application and has referred the Court to Article 23 of the Constitution of the Republic of Ghana, 1992 as the provision violated thereof. Article 23 of the 1992 Constitution states:

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.

The Respondent, no doubt is an administrative body. The Respondent therefore has its acts constantly under the searchlight of the 1992 Constitution in terms of Article 23, amongst others. For this reason, its acts and or those of its officials are constitutionally required to comply with the requirements imposed on them by law. In this instance, the relevant law amongst others that the Respondent has to comply with in the contemplation of Article 23 of the 1992 Constitution is Section 54 (1) of L.I. 47. The Respondent did not comply with the said law. The Respondent in paragraph 31 of its affidavit in opposition states:

The Panel of the administrative enquiry has almost completed its sittings and hearings and may soon release its report. That the panel interviewed/interacted with several staff of the Hospital, including all those interdicted and others at post. The said deposition is an afterthought, for no such administrative enquiry took off immediately prior to the interdiction of the Applicant. The said enquiry is an attempt to throw dust into the eyes of the Court. It is important to state that, if there was an enquiry that complied with Section 54 (1) of L.I. 47, same would have been of no legal effect. This is because there was no Forensic and Investigative Audit of the Respondent at law capable of triggering a compliance of Section 54 (1) of L.I. 47 by the Respondent. The Minister violated Act 525 in relation to Section 51 thereof, when the Auditor- General was side-stepped in the engagement of A. D. and Associates to undertake the Forensic and Investigative Audit that produced Exhibit “F”.

Article 187 (2) of the 1992 Constitution provides:

The public accounts of Ghana and all public offices, including the Courts, the central and local government administrations, the Universities and public institutions of like nature, any public corporation or other body or organisation established by an Act of Parliament, shall be audited and reported on by the Auditor-General.

Article 187 (4) further requires that “the public accounts of Ghana and of all other persons or authorities referred to in clause 2 of this Article (Article 187) shall be kept in such form as the Auditor-General shall approve. It is therefore my humble view that there cannot be any valid Forensic and Investigative Report that side-steps the approval of the Auditor-General. To the extent that Exhibit “F”, did not have recourse to the approval of the Auditor- General, same is void.

I note also that Exhibit “F” violated Section 44 of the Financial Administration Act, 2003 (Act 654) mandating the auditing of all public Accounts, accounts of departments, statutory corporations and other public institutions to be audited by Auditor-General in accordance with The Audit Service Act, 2000 (Act 584) and its Regulations thereunder. From Exhibit “H”, the Applicant’s interdiction was pursuant to Exhibit “F”. If there is no valid Exhibit “F” in law pursuant to which Exhibit “H” can be founded, then the interdiction and the prior intended investigative enquiry founded on Exhibit “F” and or as envisaged in paragraph 4 (c) and (d) of Exhibit “H” are all a nullity.

I hold therefore that the Respondent failed to comply with the requirements imposed on it by law, which are Article 187 of the 1992 Constitution and Section 51 of Act 525. I hold further that the Respondent acted unfairly and unreasonably in relation to the violations of the relevant law applicable to it in relation to the interdiction of the Applicant.

The Respondent further breached the rules of natural justice in the afterthought investigation. That investigation itself is in violation of Article 23 of the 1992 Constitution. To the extent that the Application was denied legal representation, the Respondent sinned against the requirement of procedural propriety and reasonableness, as guaranteed by the 1992 Constitution and this occasioned arbitrariness.

For all the reasons above, I will grant the entire reliefs of the Applicant:

1. I declare that the decision of the Board of the Respondent dated 29th January, 2015, interdicting the Applicant and paying her half-salary as well as withholding all her allowances is manifestly unlawful and in violation of the Applicant’s Fundamental Human Rights under the 1992 Constitution.

2. I order to be brought to this Court the Respondent’s decision complained of in relief (i) to be quashed and same is hereby quashed.

3. I hereby prohibit the Respondent Board from instituting disciplinary measures against the Applicant on the strength of the unlawful letter of interdiction dated 29th January, 2015, served on the Applicant.

4. I make an order of mandamus compelling the Board of the Respondent to allow the Applicant to resume normal duties as Director of Pharmacy of the Respondent. I order the Board of the Respondent to communicate to the Applicant in writing their obedience to the orders to this Court allowing her to resume normal duties as Director of Pharmacy of the Respondent within 7 days of the date of this judgment and its notice to the Respondent.

5. I declare that the purported forensic audit conducted by A. D. and Associates into the operations of the Korle-Bu Teaching Hospital Pharmacy is in contravention of the relevant laws governing the audit of accounts of the Ghana Health Service and Teaching Hospitals in Ghana.

6. I make an order prohibiting the Board of the Respondent forbidding it from instituting any disciplinary measures or so-called Administrative Enquiry against the Applicant on the strength of the unlawful Forensic and Investigative Audit Report presented by A. D. and Associates.

7. I make an order of General Damages of an amount based on the full monthly salary of the Applicant for which the Respondent paid half on interdiction, multiplied by 12 months.

I award Costs of GH¢5,000.00 in favour of the Applicant against the Respondent.

COUNSEL

PRISCILLA AKEAMPONG HOLDING THE BRIEF OF GODFRED YEBOAH DAME, ESQ FOR THE APPLICANT

KIN HUSSEIN ESQ. FOR THE RESPONDENT.