GODWIN KOMLA V. DIRECTOR BNI AND THE ATTORNEY GENERAL

JUDGMENT

ASUMAN-ADU, J.

The Plaintiff, Godwin Komla, a former employee of the BNI commenced the current action against the Defendants by filing writ of summons accompanied by a statement of claim on 11th June, 2009 for the following reliefs:

a. A declaration that the Director of the BNI has no jurisdiction to institute and/or investigate and make findings of guilt against the Plaintiff for an alleged offence of STEALING under S 124 (1) of Act 29, 1960.

b. A declaration that the purported dismissal of the Plaintiff by the 1st Defendant in a letter dated September 14, 2005 based on the findings of BNI Disciplinary Board, is wrongful in law, sins against the provisions of Sections 76, 77, 78, 80 and 81 of the Civil Service Law, 1993 PNDCL 327, unlawful, void and of no legal effect.

c. An order for immediate re-instatement of Plaintiff plus payment of any and ALL benefits, emoluments and promotions lost due to the said purported dismissal.

d. Interest on the said benefits, emoluments, salaries, etc lost due to the purported dismissal of plaintiff from September 2005 to the date of final payment.

e. Costs.

The Defendants entered appearance on 22nd June, 2009 and went on to file a statement of defence denying the claim of the Plaintiff on 16th July, 2009. The Plaintiff filed a reply to the statement of defence on 15th October, 2009. On 20th November, 2009, the Plaintiff filed an application for directions. No additional issues were filed by the Defendants, so on 22nd March, 2010 all the issues raised in the application for directions were set down by this court as issues to be tried by this court.

Plaintiff’s case as stated in the accompanying statement of claim is that the Plaintiff was an FDO III with the BNI till by a letter dated September, 14, 2005 the 1st Defendant purported to have dismissed him. He claims that the purported dismissal is as a result of the findings arising from the formal proceedings of the Disciplinary Board of the BNI which found him guilty of the offences of Stealing and Misconduct contrary to Section 124 (1) of Act 29 of 1960 and Section 76 (12) (c) of the Civil Service Law 1993 (PNDCL 327) respectively.

The Plaintiff goes on to aver that at about 4:30 pm on August, 24, 2005 he was asked to see the Head of Administration of BNI and when he reported he was arrested and detained on the instructions of the 1st Defendant. He was detained for three days without being told the reasons for his arrest and it was only in the evening of the third day that one ASO Alfred Sangmor escorted him to SO Godwin Nornorquadzi where they both interrogated him about some vehicle parts made up of clutch pot and fuel filter.

The Plaintiff claims that he told the interrogators that he bought a Renault car with registration number GR 8784 R from one Kwamena Afedzi (a senior officer at the BNI) and that at the time of purchase it had a drive-shaft and clutch in its boot. The fuel filter was, however, given to the Plaintiff by Mr. Justice Tsar, another senior officer at the BNI. The Plaintiff was asked to submit a written statement which he did and after that he was granted self-recognizance bail.

The Plaintiff goes on to state that on 30th August, 2005 he was served with an interdiction letter and asked to hold himself in readiness for further investigation and trial in his own interest. Later the Plaintiff was put before a 3-member panel comprising ASO Danso as Chairman with FDO 11, Daniel Amartey Quarshie and FDO 111, Peter Okore-Affam as members. The panel sat for only one day and no witnesses, including the person the Plaintiff allegedly sold the clutch pot and fuel filter to, were invited to testify before the panel.

The Plaintiff states that he explained how he came by the fuel filter and the clutch to the panel after he had denied that he had stolen them from the BNI and sold them to somebody outside the BNI.

The Plaintiff further states that his request for Messrs Kwamena Afedzi, Justice Tsar and Walter Annertey Abbey (a mechanic whom Plaintiff is alleged to have sold the parts to) to be summoned before the panel was declined.

The Plaintiff goes on to aver that contrary to what was stated in his dismissal letter, the Civil Service Law 1993, PNDCL 327 has no Section 76 (12) (c) which touches on misconduct, but rather Section 76 (1) (a-c) defines what misconduct is.

He avers that the Disciplinary Board of the BNI is not clothed with the jurisdiction or power in law to investigate and make findings of guilt for an alleged offence of stealing under Section 124 (1) of the Criminal Offences Act, 1960 (Act 29). Also Section 76 (2) (c) under which the 1st Defendant dismissed the Plaintiff describes the various types of misconduct but it does not create offence under which the Plaintiff could have been dismissed.

The Plaintiff states that Section 80 (2) of the Civil Service Law 1993, PNDCL 327 provides for Regulations to govern the conduct of formal proceedings, but these were flagrantly abused by the Disciplinary Board of the BNI in so far as they never used the said regulations in the trial of the Plaintiff.

He concludes that his purported dismissal by the 1st Defendant based on the findings of the Disciplinary Board of the BNI arising from an allegation of misconduct and stealing is unlawful, void and of no legal effect whatsoever. He is as a result entitled to the reliefs endorsed on his writ of summons.

The case of the Defendants on the other hand as stated in the statement of defence is that, the Plaintiff who was a senior mechanic at the transport/workshop unit of the Agency was arrested and detained on suspicion that he had stolen and sold a clutch master cylinder and fuel filter belonging to the BNI at GH¢30.00 and GH¢5.00 respectively. He was interrogated by the members of the panel but he failed to prove to them that he did not steal the clutch master cylinder and the fuel filter both of which have been proved to belong to the 1st Defendant.

The Defendants aver that when the Plaintiff appeared before the panel, the charges were read out to him and he was requested to enter a plea after which he pleaded not guilty to the offences he was charged with. The Plaintiff was cross-examined by the Panel and five witnesses including the garage owner who he sold the stolen items to were called to testify.

The Defendants go on to aver that the record of proceedings shows clearly that persons mentioned in paragraph 13 of the statement of claim were all called to assist the panel in its deliberations as witnesses. The persons mentioned in that paragraph were Messrs Kwamena Afedzi, Justice Tsar and Walter Annertey Abbey.

The Defendants go on to state that the reference made to the Civil Service Law 1993 (PNDCL 327) Section 12 (c) in the dismissal letter was a typographical error and that it should have read Section 76 (1) (c) of the Civil Service Law 1993 (PNDCL 327) as quoted on the charge sheet.

The Defendants claim that 1st Defendant being an investigative agency, it has the power to set up units/sections including Disciplinary Boards to investigate and make findings on all issues under its established enactment (Act 525) which include stealing.

The Defendants conclude that the investigations conducted in respect of the trial have all established without doubt the culpability of the Plaintiff. The Plaintiff is, therefore, not entitled to the reliefs sought in his writ of summons.

In his reply to the statement of defence, the Plaintiff insists that the 1st Defendant is not clothed with any authority whatsoever under Section 124 (1) of Act 29, 1960 to make a finding of guilty for stealing against anyone. He goes on to aver in the reply that he was never allowed to confront his accuser Walter Annertey Abbey and he was also never present when any other witness so called was invited to meet the interrogators to rebut any allegations they might have made against him. He states that he was never present when the alleged five witnesses including Walter Annertey Abbey went before the Panel and that he was never cross-examined by the alleged five witnesses.

In support of his case the Plaintiff gave evidence and called one other witness. In his testimony in court which was essentially a repetition of his averments in his pleadings he told the court that he was employed by the 1st Defendant on 1st January, 1978 as a Driver Mechanic. He claims that he was, however, dismissed by the 1st Defendant on 14th September, 2005. He says that before the dismissal he was interdicted. He tendered in evidence the interdiction and the dismissal letters as Exhibits A and B respectively.

The Plaintiff goes on to say that on receipt of the dismissal letter he wrote to 1st Defendant for a review which 1st Defendant responded negatively. He tendered in evidence those documents as Exhibits C and D respectively.

He says that on 24th August, 2005 around 4:30 pm he was asked to see the Head of Administration at the Headquarters. He as a result went to the charge office and as soon as he got there he was arrested and detained without being told why he had been detained. It was after the third day that he was confronted about a clutch pot and a fuel filter that he sent to a mechanic at Asylum Down called Walter Annertey Abbey. He was asked where he got those parts from and he told them that they were for him.

The Plaintiff went on to explain that he bought a Renault salon car from Kwamena Afedzi and he found the clutch pot and some other parts in the boot of the vehicle. He says that later one Justice Tsar sent his VW Golf car to the Plaintiff to change his fuel filter for him. Unfortunately, the filter Justice Tsar sent to the Plaintiff was not for that vehicle. Justice Tsar, therefore, gave that filter to the Plaintiff as a gift.

According to the Plaintiff later one Walter Annertey Abbey, a mechanic went to the workshop of the BNI. At that time the Plaintiff was working on the Renault car so he showed him the clutch pot and asked him what type of car uses that clutch pot and he said he did not know since he had not seen that type before. Some months later Walter Annertey Abbey called him from his workshop and told him that he had found a car that uses the clutch pot so he should bring it to him. The Plaintiff went to him and he said the car had left so he should leave the part with him in order for him to find out whether it would fit the car if it should come there later. He, therefore, left the parts with him. He gave the Plaintiff GH¢5.00 for the fuel filter and he left the place.

The Plaintiff was later arrested by the BNI and three days after he was asked to give his statement and he was granted bail. Later after his interdiction he appeared before a three member panel for investigations. He was told that he had been charged for stealing and misconduct and he pleaded not guilty on both charges. He went on to explain his position to the panel. After that he was asked to go and that they would call him when the need arises. He was never invited to appear before the panel again. In September, 2005 he was dismissed from 1st Defendant’s employment. He was also not given the opportunity to meet his accuser, Walter Annertey Abbey.

The Plaintiff insists that he did not steal the parts. He claims they were for him and that they were not for the BNI.

One Justice Yao Adeble Tsar who gave evidence as a witness for the Plaintiff told the court that he was an officer of the BNI and that the Plaintiff who was working at the transport section of the BNI had been working on their vehicles. He said in the course of the Plaintiff working on his Golf car, he gave the Plaintiff a tyre, a fuel filter and some other parts. In respect of the filter he explained that on a certain day he sent his Golf car to the Plaintiff to fix a fuel filter for him. When he gave the filter to the Plaintiff he told the witness that the filter was not the correct one for that Golf. The plaintiff, therefore, looked for another one for him and the witness gave the one he sent to the Plaintiff as a gift to him.

The witness went on to say that there was a time two guys from the BNI went to question him at the blue gate on the issue of a filter he had given to the Plaintiff. At the time he was being questioned there was no other person around. In the process they showed him a filter which looked like the one he gave to the Plaintiff. Defendants tendered in evidence the proceedings of the investigations committee through the witness during cross examination. It is observed that even though the document was tendered in evidence by the Defendants it was marked as Exhibit E which was wrong. It should have been Exhibit 1.

The Defendants’ case was presented by one Kwesi Saakwa. He told the court that he was in charge of the BNI workshop and that he was an Assistant Transport Officer. At that time the Plaintiff was also a mechanic at the workshop. He went on to say that in connection with the Plaintiff a report of fault on two vehicles made up of a VW Golf and a Ciat cars was made by the drivers of both cars. Assessment of the faults was made and the parts for the repairs credited from town. The parts were brought to him by one Martin Agortina and he kept them in his office. On the following day Martin Agortina went to the witness and told him that the Plaintiff had asked him to come for the parts. The parts were handed over to him and he sent them to the workshop to be fixed on the vehicles. The parts were oil filter and fuel filter for the VW Golf and then the Ciat were clutch master cylinder, clutch disc, clutch pressure plate and shock absorbers. He said the parts were fixed except the clutch master cylinder.

According to him it was later found out that the car was not using the clutch master cylinder. It was rather using clutch cable so the Plaintiff should have returned it to the transport office but he did not. He claims it was later reported that he went and sold it to a mechanic outside. After the arrest of the Plaintiff, the witness was asked to inspect the vehicle and in the process he got to know that the vehicle uses clutch cable and not clutch master cylinder. When he inspected it he observed that the Plaintiff did some adjustment on the clutch cable and he kept the cylinder. With respect to the oil filter, the Plaintiff washed the old one and fixed it back and kept the new filter.

Martin Agortina and Walter Annertey Abbey gave evidence in support of Defendants’ case. Martin Agortina told the court that he was also working at the transport section and was working with The Plaintiff in that section. He went on to say that somewhere in 2005 one of their vehicles was sent to the workshop for repairs. Assessment was made on the vehicle and the fault detected so he went to town for the parts. On his return he sent the parts to the transport officer’s office. About three days after the Plaintiff asked the witness to go for the parts so he went for the parts and sent them to the Plaintiff. He reported sick at the hospital so he was given two days off so he left and the Plaintiff and one Kramo worked on the vehicle.

The witness said he later appeared before a disciplinary committee to testify and he was shown the parts in dispute. He said some Ciat vehicles use clutch cable while others use clutch master cylinder. The one that they worked on uses clutch cable. Also when he appeared before the panel he was asked to inspect the filter on the Golf vehicle that they worked on and he realized that the filter on the vehicle was old which implies it was not changed.

Walter Annertey Abbey also told the court that he was an auto mechanic with his workshop at Asylum Down in Accra and that he had been working on the DW1’s vehicles. He said he once bought a fuel filter and clutch port from the Plaintiff. According to him he went to the BNI premises to see the Transport Officer and the Plaintiff showed him the parts and asked him whether he could get somebody to buy. He was selling the filter for GH¢5.00 and the clutch pot for GH¢30.00.

He said that, later he was invited to the BNI premises to give evidence in connection with the parts sold to him by the Plaintiff and in the process he was shown the parts he bought from the Plaintiff. At the time he was giving evidence at the BNI the Plaintiff was not there.

According to the witness when the Plaintiff sent the parts to him he paid for the filter and later when he called that he should come for the money for the clutch pot , the plaintiff was not at the office so the witness asked one Kramo who received the call to come for the money for the Plaintiff. Kramo went for it. After that a certain man the witness did not know went to him and enquired from him what Kramo went for. The parts were later collected from him by the BNI.

Having reviewed the pleadings and the evidence before the court I will now evaluate the evidence vis-à-vis the issues this court has been called upon to determine.

The issues set down for determination were as follows:

(a) Whether or not the 1st Defendant has the capacity and/or jurisdiction to institute and/or investigate a matter and make findings of guilt against the Plaintiff for an alleged offence of stealing under Section 124(1) of Act 29 1960.

(b) Whether or not the findings of the BNI Central Disciplinary Board against the Plaintiff is wrongful in Law and sins against Sections 76, 77, 78, 80 and 81 of the Civil Service Law, 1993 PNDCL 327.

(c) Whether or not the Plaintiff was allowed to cross-examine and was also cross-examined by any witness during the investigation and trial.

(d) Whether or not the Plaintiff testified in the presence of any witness and whether or not any witness testified at the trial in the presence of the Plaintiff.

(e) Whether or not the persons mentioned by the Plaintiff as being owners of the clutch master cylinder and fuel filter were allowed to testify in the presence of the Plaintiff.

(f) Whether or not the accuser of the Plaintiff, Walter Annertey Abbey testified at the Investigation and at the trial in the presence of the Plaintiff.

(g) Whether or not the 1st Defendant is enabled by Act 526, the Security and Intelligence Agencies Act, 1996, (Act 526) to investigate and make findings of guilt under Section 124(1) of Act 29 of 1960.

(h) Whether or not Section 80(2) of the Civil Service Law, 1993 (PNDCL 327) governing the conducting Formal Proceedings were adhered to in the trial of the Plaintiff.

(i) Any other issue(s) arising out of the pleadings.

The burden of producing evidence and the allocation of the burden of persuasion in civil cases is governed by Section 11(1) and (4) and Section 14 of the Evidence Act 1973 (NRCD 323) which provides as follows:

“11(1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue.

11(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.

14 Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”.

Thus in Bank of West Africa v. Ackun (1963) 1 GLR 176 it was held in holding 2 thereof with regard to the onus of proof in civil cases as follows:

“The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof ...”

With regard to the burden of producing evidence it was held in Re Ashalley Botwe Lands; Adjetey Agbosu and others v. Kotey and Others (2003-2004) SCGLR 420 as follows:

“Under the Evidence Decree 1973 (NRCD 323) the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issues asserted and/or denied”.

In the current case the Plaintiff claims that his purported dismissal by the 1st Defendant based on the findings of the Disciplinary Board of the BNI arising from an allegation of misconduct and stealing is unlawful, void and of no legal effect whatsoever. The Defendants, however, states that the 1st Defendant as an investigative agency has the power to set up units/sections including Disciplinary Boards to investigate and make findings on all issues under its established enactment (Act 525) which include stealing. So the investigations conducted in respect of the trial have all established without doubt the culpability of the Plaintiff. The onus is, therefore, on the Plaintiff to produce sufficient evidence to prove his case against the Defendants. See the case of Fosua and Adu-Poku v. Adu-Poku Mensah-Ansah [2009] SCGLR 310. See also the case of JASS CO LTD and Another v. APPAU and Another [2009] SCGLR 265 at 270 where Dotse JSC stated as follows:

“...We wish to observe that the burden of proof is always put on the plaintiff to satisfy the court on balance of probabilities in cases like this. Thus, where in situation, the defendant has not counterclaimed; and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claim would be dismissed...”

This court must, therefore, find out from the evidence before it whether the Plaintiff in the current case has been able to lead sufficient evidence to establish his case on a balance of probabilities as a result of which this court must rule in his favour.

Issues a, and g are related so they will be taken together. Issue a, is whether or not the 1st Defendant has the capacity and/or jurisdiction to institute and/or investigate a matter and make findings of guilt against the Plaintiff for an alleged offence of stealing under Section 124(1) of Act 29 1960. Issue g is about whether or not the 1st Defendant is enabled by Act 526, the Security and Intelligence Agencies Act, 1996 (Act 526) to investigate and make findings of guilt under Section 124(1) of Act 29 of 1960.

By Section 14(a) of the Security and Intelligence Agencies Act, 1996 (Act 526), the 1st Defendant being the Head of BNI has the capacity and/or jurisdiction to institute and/or investigate a case of stealing against any other person including the Plaintiff. The said provision states as follows:

“A director appointed under section 13 is responsible for the efficient and effective performance of the functions of the intelligence agency of which the director is the head.”

However, if the 1st Defendant investigates a case of stealing under Section 124 (1) of Act 29 against any individual and finds that person culpable of the offence, he does not have the jurisdiction to try that person and make a finding of guilt against him. He must rather put that person before a court of competent jurisdiction where that person would be tried after which the court would deliver its judgment as to whether that person is guilty or not. After the court has delivered its judgment, the 1st Defendant could then base on it to take the appropriate action against the person concerned.

In the current case the 1st Defendant leveled allegation of stealing against the Plaintiff. It set up a disciplinary committee to investigate the matter. The committee found the Plaintiff culpable. So what the 1st Defendant should have done was to put the Plaintiff before a court of competent jurisdiction for the court to try him for stealing under Section 124(1) of Act 29. It was, therefore, wrong for the 1st Defendant to act as the investigator, the prosecutor and the judge at the same time and go on to find the Plaintiff guilty of stealing under Section 124(1) of Act 29. This is because the 1st Defendant lacked the capacity to have tried the Plaintiff under Section 124(1) of Act 29. It is, therefore, my opinion that the 1st Defendant has no capacity whatsoever to try the Plaintiff under Section 124 (1) of Act 29 and make findings of guilt against him for the offence.

Issues b, c, d, f and h are also related so they will be taken together. Issue b deals with Sections 76, 77 78 80 and 81 of the Civil Service Act, 1993 (PNDCL 327). The said sections are reproduced in this judgment as follows:

“76. Particular types of misconduct

Without prejudice to the generality of section 75, it is misconduct for a civil servant

(a) To be absent from duty without leave or reasonable excuse,

(b) To be insubordinate,

(c) To be intoxicated during office hours,

(d) To use, without the consent of the prescribed authority, property or facility provided for the purposes of the Service for some purpose not connected with official duties,

(e) To engage in a gainful occupation outside the Service without the consent of the prescribed authority,

(f) To engage in an activity outside official duties which is likely to lead to the taking of improper advantage of the position in the Service of the civil servant,

(g) To fail to submit reports or information or both as prescribed under this Act,

(h) To make an unauthorized disclosure of classified or unclassified official information or document to a private person or to another public officer.

77. Penalties

(1) The penalties specified in this section may be imposed in disciplinary proceedings in respect of misconduct or unsatisfactory service:

(a) dismissal, that is termination of appointment with forfeiture of retirement benefits where applicable,

(b) removal, that is termination of appointment with or without a reduction in retirement benefits where applicable,

(c) reduction status that is removal from one grade to another grade with an immediate reduction in salary,

(d) surcharge,

(e) reduction in salary, that is an immediate adjustment of salary to a lower point in the salary scale attached to the post in question,

(f) deferment of increment, that is postponement of the date on which the next increment is due, with corresponding postponements in subsequent years,

(g) stoppage of increment, that is non payment for a specified period of an increment otherwise due,

(h) suspension from duty with consequent loss of pay and allowances for a period not exceeding fourteen days,

(i) reprimand.

(2) For the purposes of this Act, dismissal, removal and reduction in status are major penalties and all other penalties are minor penalties.

78. Disciplinary authority

(1) subject to this Act, the Council is the disciplinary authority for civil servants,

(2) the council may delegate its power under subsection (1).

80. Conduct of disciplinary proceedings

(1) Regulations shall be made providing for the conduct of disciplinary proceedings in cases of misconduct or unsatisfactory service.

(2) Regulations made under subsection (1) governing cases of misconduct shall include provision

(a) requiring a written charge to be preferred in disciplinary proceedings,

(b) enabling the accused in formal proceedings to call appropriate witnesses,

(c) enabling persons to be compelled to give evidence or produce exhibits in formal proceedings,

(d) specifying that a major penalty imposed by a disciplinary authority on a civil servant holding a post in specified categories shall not take effect unless confirmed by the Council,

(e) enabling the accused to appeal against a decision involving the imposition of penalty, not being a decision that requires confirmation by the Council under paragraph (d) of this subsection, and

(f) specifying the person or bodies to whom appeals shall lie.

81. Retirement benefits

(1) Subject to this Act and to any other enactment relating to pension, a civil servant on retirement from the Service or termination of service, is entitled to the terminal awards that are applicable to the civil servant.

(2) Pension payable to an officer in the service is exempted from tax.”

Other relevant provisions not covered by issue b are Sections 75 and 79. They provide as follows:

“75. General definition of misconduct

(1) An act done by a civil servant without reasonable cause constitutes a misconduct if the act

(a) Amounts to a failure to perform in a proper manner a duty imposed on that civil servant, or

(b) Contravenes an enactment relating to the Service, or

(c) Is otherwise prejudicial to the efficient performance of the functions of the Service, or

(d) Tends to bring the service into disrepute.

(2) The conviction of a civil servant for an offence involving fraud, dishonesty or moral turpitude, constitutes a misconduct which tends to bring the Service into disrepute.

79. Proceedings for misconduct

(1) Disciplinary proceedings in cases of misconduct shall be summary or formal.

(2) a major penalty shall not be imposed on a civil servant in summary proceedings not arising out of a conviction.”

From the provisions as shown above a civil servant may be charged with either a major offence or a minor offence and when found liable on any of them may be punished in accordance with Section 77(1) of the Civil Service Act. Section 77(2) goes on to state that dismissal, removal and reduction in status are major penalties. Section 79(2) of the Act goes on to state that a major penalty shall not be imposed on a civil servant in summary proceedings not arising out of a conviction. So by the Act for a civil servant to be dismissed from his employment he must have been convicted for a major offence involving fraud, dishonesty or moral turpitude.

In the current case the 1st Defendant caused the arrest of the Plaintiff for having allegedly stolen a fuel filter and clutch master cylinder belonging to the BNI. The 1st Defendant set up a three member panel to investigate the allegation of stealing against the Plaintiff. Unfortunately, the report of the investigative committee was not tendered in evidence for the court to know their findings. However, the Defendants tendered in evidence the proceedings of the committee through Justice Tsar who gave evidence on behalf of the Plaintiff. The said proceedings clearly show that none of the witnesses gave evidence in the presence of the Plaintiff who was the subject of the investigations. Plaintiff, therefore, did not have the opportunity to cross examine them. This was confirmed by all those who testified in this court. Also Exhibit 1 is very clear on this. There is no indication in that exhibit that the Plaintiff cross examined the witnesses.

Since the charge leveled against the Plaintiff was stealing there was the need for the 1st Defendant to prove the charge against the Plaintiff beyond reasonable doubt as provided by Section 11(2) and (3) of the Evidence Act, 1975 (Act 323). The said provision states as follows:

“(2) In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.

(3) In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.”

In the current case the evidence before the court shows that the Plaintiff bought a Renault car from one Kwamena Afedzi of the BNI. He claims he found the clutch master cylinder he sold to the mechanic in the boot of the car. In spite of the fact that he stated this during the investigations, the panel members did not find it necessary to invite the said Kwamena Afedzi to find out from him whether or not what the Plaintiff told the panel was true. Since the Plaintiff had mentioned his name he was a material witness who should have been invited during investigations but the evidence shows that he was not invited by the panel to testify. So on what basis did the panel arrive at the conclusion that the Plaintiff stole the cylinder from the BNI? With respect to the fuel filter Justice Tsar was invited by the panel to give evidence and he confirmed to the members that the fuel filter that was shown to him by them looked like the one he gave to the Plaintiff. So his evidence shows that truly he gave a fuel filter to the Plaintiff and that the one he is allegedly accused of stealing looked like the one he gave to the Plaintiff. So here too on what basis did they arrive at the conclusion that the fuel filter retrieved from the mechanic belonged to the BNI and that the Plaintiff stole it? If the Plaintiff had been put before a court of competent jurisdiction the court would have gone into the allegation and would have made a finding of fact to prove it or not.

The evidence before the court also shows that the Plaintiff did not have the opportunity to cross examine the witnesses who testified against him during the investigations. This clearly shows that the Plaintiff was not given a fair trial by the 1st Defendant before deciding to dismiss him, which was not in consonance with accepted norms and standard procedures for fair trials by Administrative Bodies. So the conclusion arrived at by the 1st Defendant that the Plaintiff stole the parts was speculative which is not tenable in law.

In her address, Counsel for the Defendants states in reaction to the Plaintiff’s allegation that the investigative panel did not follow laid down procedure in the Civil Service Act that, as per Section 79 of the Act, such proceedings could be either formal or summary. It is, therefore, their case that there are no strict procedures which need to be followed. The committee had the right to decide which procedure to use to conduct the investigations.

Counsel for the Defendants goes on to state in the address that employment is a contract of service and not a contract of servitude between an employee and his employer. None of the parties can force the other to remain in the contract. She contends that procedure is only a formality and a means to an end but not an end in itself. According to her it is the case of the Defendants that the Plaintiff has been found guilty of stealing and the proper disciplinary action has been taking against him.

It must be noted that the Plaintiff being a public servant he cannot be dismissed by the 1st Defendant without just cause. See Article 191(b) of the 1992 Constitution which provides that a member of the Public Services shall not be dismissed or removed from office or reduced in rank or otherwise punished without just cause.

In the current case the BNI being a public service is bound by the said constitutional provision so it has no right whatsoever to dismiss the Plaintiff without just cause. So in dismissing the Plaintiff the 1st Defendant must be able to prove the allegation against him beyond reasonable doubt which he has not been able to do. Since the Plaintiff was charged under Section 124(1) of Act 29 it was only a court of competent jurisdiction that could have made a finding of guilt against the Plaintiff and no other person or body. Since the 1st Defendant failed to do that it implies that the dismissal of the Plaintiff was done without just cause.

It is also provided by Article 23 of the same Constitution 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.

The law requires the 1st Defendant not to dismiss the Plaintiff without just cause but from the evidence before the court the Plaintiff was dismissed by the 1st Defendant without just cause. This implies that the 1st Defendant and the BNI did not act fairly and reasonably. So the Plaintiff having being aggrieved by the act of the 1st Defendant and the BNI the Plaintiff has brought the current action against the Defendants.

It must also be noted that even if, there is no specific disciplinary procedures provided for the BNI, the organization being a public service is bound by the Constitution to act fairly on disciplinary matters. So in the current case it is the responsibility of this Court to find out whether the procedure adopted by the BNI to terminate the appointment of the Plaintiff was done in accordance with the 1992 Constitution of the Republic of Ghana which is the supreme law of the country. The basic constitutional truism is that the constitution gives effect to all laws of the country and that any law which is inconsistent with it is to the extent of its inconsistency, void as stated in Article 1(2) of the 1992 Constitution.

Article 19 of the 1992 Constitution catalogues the requirements of fair trial, This includes presumption of innocence, Article 19 (2) (c), being made aware of the offence for which he is being tried, being given adequate time and resources to prepare his defence, being afforded the chance to confront his accusers, for example examining or cross examining witnesses, right to counsel, being afforded the chance to call witnesses in his defence, the right to be tried by an impartial jury etc. In other words the trial should conform to the basic tenets of natural justice, which includes the Audi alteram patem rule; the right to be heard before condemnation. It is trite law and a cardinal principle of justice that no man shall be condemned unless he has been given prior notice of the allegation against him and a fair opportunity to be heard. See Halsbury’s Laws of England 4th Edition Vol.1 Pg 76.

It is also settled law that where there are rules for a disciplinary procedure to be followed an employer who fails to adopt the laid down procedure stands to be mulcted in damages for wrongful dismissal. Where, however, there are clearly no specific procedures, the employer is under a duty to act fairly and comply with the rules of natural justice; that is the Plaintiff must be given a proper opportunity of making out his case. See the case of the Republic v. Ghana Railway Corporation Ex-parte Appiah and Anor [1981] GLR 753.It was held in that case that the principle simply meant that a party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his statement in explanation of any question or to answer any arguments put forward against him. The principle does not in any way require that there must be a formal trial of a specific charge akin to Court proceedings.

In the case of Awuni v. West African Examinations Council [2003-2004] SC GLR 471, the Supreme Court was confronted with a similar submission, albeit in a converse form. The WAEC had cancelled the results of some candidates without giving them a hearing, based on their internal investigations. It was argued on their behalf that WAEC did not have to give them a hearing. The Supreme Court was not enthused about this submission at all and said so in no uncertain terms.

The facts of that case were briefly that the entire results of 13 students’ were cancelled and a 3-year ban imposed on them. Their offence was that;

1. All thirteen candidates had been involved in some examination malpractices or irregularities in Core Mathematics Paper and

2. Judging from a scrutiny of the answer scripts of the candidates, the council had concluded that the candidates had foreknowledge of the questions and had colluded among themselves in solving the questions.

The petitions by their headmaster and their solicitor were ignored. So they brought an action at the high Court. They denied the collusion charge against them and said their not being asked to make representation infringed their fundamental human rights and that the council failed to act fairly and reasonably as required by Article 23 of the Constitution.

It was argued on behalf of the council that the evidence in the scripts was so manifest that by its rules it was unnecessary for the council to invite the appellants to make any representation and that “the cancellation of examination result on good grounds does not constitute an infringement of human rights”.

The High Court upheld their Claim, the Court of Appeal reversed it and they appealed to the Supreme Court. The Supreme Court held as follows:

“By failing to observe the rules of natural justice, i.e. the audi alteram patem rule, the respondent council had contravened the appellant’s right to administrative justice under Article 23 of the 1992 Constitution. Furthermore, the process by which the council sought to establish the allegations made against the appellants was neither fair nor reasonable and therefore made in contravention of Article 23.....”

Kpegah J.S.C. in his opinion said at page 489.

“The phrase to act fairly and reasonably in my opinion necessarily imports a duty to observe the common law maxim of audi alteram partem and other principles of natural justice which is very much part of our jurisprudence and are implicit in the constitutional provisions in Article 23. Because I cannot contemplate how a person could be said to have acted fairly and reasonably if he did not give either notice or hearing to another who was entitled to such notice or hearing before taking a decision which adversely affects his rights; neither can I contemplate a situation where a person could be said to have acted fairly and reasonably if he acted as a judge in his own cause, or gave a biased and perverse decision.”

On her part Her Ladyship Justice Sophia Akuffo said at pg. 514,

“Where a body or officer has an administrative function to perform, the activity must be conducted with, and reflect the qualities of fairness, reasonableness and legal compliance. I will not venture to give a comprehensive definition of what is fair and reasonable.... At the very least however, it includes probity, objectivity, opportunity to be heard, legal competence and absence of bias caprice or ill-will. In particular, where as in this case, the likely outcome of an administrative activity is of a penal nature, no matter how strong the suspicion of the commission of the offence, it is imperative that all affected persons be given reasonable opportunity to be heard, if the objective of article 23 is to be achieved.”

The Supreme Court in an earlier case of Aboagye v. Ghana Commercial Bank Ltd., [2001 – 2002] SG GLR 797 had done more than enforce the observance of Administrative justice in terms of Article 23 in as far as it relates to the audi alteram partem rule.

The facts of this case were similar to those in the case of Awuni, cited earlier in as far as it relates to notice of hearing.

The Plaintiff, a senior manager of the G.C.B. received two queries relating to payments of £15,000 and $13,000 into the bank accounts of two customers. He answered the queries admitting that he had authorized the payments in the course of his normal duties. The bank, however took the view that the payments had been fraudulently authorized. The Plaintiff was therefore suspended from work.

Three (3) levels of disciplinary boards went into the matter, made various recommendations and finally he was dismissed. The three levels were Disciplinary Committee, that made recommendation to Executive Committee, which considered the report and recommendations and also made recommendation to the Disciplinary Board of the Bank i.e. the Board of the Bank, that also reviewed the report and recommendation and finally took the decision that the Plaintiff should be dismissed, after taking notice of “the extent of the Plaintiffs involvement in the malpractices at the Foreign Operations Branch”. Significantly, apart from the query he was served with, the Plaintiff was not invited to or given any hearing before any of the three committees or levels of disciplinary board.

His claim before the High Court alleging breach of natural justice was upheld. The Court of Appeal reversed the high Court decision. On further appeal to the Supreme Court, the appeal was unanimously upheld. The Court held that all Courts and adjudicating bodies and authorities were required under Article 19(13) of the 1992 Constitution to give a fair hearing within a reasonable time. This is what Bamford Addo JSC. Said on Article 19(13).

“This requires that notice of proceedings be given to the person affected by any decision of the adjudicating authority and that he be given the opportunity to defend himself. Furthermore, Article 23 says that administrative bodies and officials shall act fairly. And acting fairly implies the application of the rules of natural justice, which have been elevated to constitutional rights and are binding on all adjudicating and administrative bodies as well as Courts and tribunals.”

Later in the judgment Bamford Addo JSC commenting on the breach of fair play contrary to the Audi Alarm Partem rule said at page 805.

“In this case the administrative body trying the Plaintiff, who suffered the highest and toughest sanction of dismissal, should in the course of fair trial have served him with proper disciplinary charges and given adequate notice of the date of hearing as well as be given the opportunity to be heard. The mere fact that the rules of the bank did not mention this does not relieve the Defendant of the duty to comply with the rules of natural justice and fair trial”

Even though the facts in Awuni and Aboagye cases seem to be slightly different, the similarities in the issues discussed and the principles contained therein cannot be lost on the Court. While in the Awuni’s case the applicants were not given any form of hearing at all because of what the WAEC said was due to “Administrative convenience”, in the Aboagye’s case he was given a form of hearing when he was asked to respond to a query. The Court in both cases said that no hearing or inadequate hearing amounted to a denial of the respective Plaintiffs’ right to fair hearing. And that the tribunals or administrative bodies had acted unfairly and unreasonably in contravention of Article 23 of the 1992 Constitution.

On the issue of wrongful dismissal the Supreme Court per Ansah JSC in the case of Kobi v. Ghana Manganese Co. Ltd. [2007-2008] SCGLR 771 at Page 786 held as follows:

“The issues agreed upon for trial, were whether or not the termination of the Plaintiffs’ appointment was wrongful and illegal and whether or not the Plaintiffs were entitled to their claims. This being an action for damages for wrongful dismissal, each Plaintiff assumed the burden of proving the terms of his employment; that the determination was in breach of the terms of the agreement, or in contravention of statutory provisions for the time being regulating employment. If a Plaintiff failed to satisfy the Court on these points, his or her claim cannot succeed.”

In the current case from the evidence before the court the Plaintiff’s employment relationship was governed by the Civil Service Act. However, in dismissing the Plaintiff the Defendant did not comply with the said Act. It is also observed that in the process, the 1st Defendant breached both Articles 23 and 191(a) of the 1992 Constitution of the Republic of Ghana. The Plaintiff has, therefore satisfied the court that his dismissal by the 1st Defendant was wrongful and I so hold. So from the evidence before the court, the findings of the BNI Central Disciplinary Board against the Plaintiff was wrongful in law and sins against the Civil Service Act, 1993 (PNDCL 327).

The Supreme Court held in the case of G.N.T.C and Anor. v. Baiden (1991) 1 GLR 567 that where a public officer was dismissed or removed from office, without a just cause his dismissal was not only wrongful but was unconstitutional and null and void. And in all such cases, reinstatement might be ordered or if that was impracticable damages going beyond the period of notice might be awarded. See also Ghana Cocoa Marketing Board v. Agbettor and Others (1984-86) 1 GLR 122.

So from the authorities referred to in this judgment, since the dismissal of Plaintiff from the BNI has been held to be wrongful and unfair he is entitled to re-instatement with all benefits he was enjoying as an employee of the BNI from the time of his dismissal. He is, therefore, entitled to the reliefs endorsed on his writ of summons.

In conclusion judgment is entered for the Plaintiff as follows:

a. It is hereby declared that the Director of BNI has no jurisdiction to make findings of guilt against the Plaintiff for the offence of stealing under Section 124(1) of the Criminal Offences Act, 1960 (Act 69).

b. It is further declared that the purported dismissal of the Plaintiff by the 1st Defendant based on the findings of the BNI Disciplinary Board was without just cause and therefore wrongful in law, void and of no legal effect so it is hereby set aside.

c. It is hereby ordered that the Defendants with immediate effect re-instates the Plaintiff as an employee of the BNI with payments of all benefits, emoluments, salaries, etc from the time of his dismissal and promotions lost due to the said dismissal.

d. It is further ordered that the Defendants pay interest on the said benefits, emoluments, salaries, etc lost due to the purported dismissal of Plaintiff from September, 2005 to the date of final payment.

e. It is further ordered that the Defendants pay costs of GH¢5,000.00 to the Plaintiff.

COUNSEL

MR. AKWASI BOSOMPEM FOR THE PLAINTIFF

MS. ANIMA ASARE FOR THE DEFENDANTS.