The Attorney's Reverie!

Just like any ordinary contract, a contract of employment must have all the elements of a valid contract before it may be enforceable. Before executing that contract however, there are various factors that a prospective employer as well as a prospective employee must look out for.

In the next few posts, much dedication would be given to the rights and duties of employers and employees alike in a contract of employment, maintenance of a contract of employment, as well as the termination of a contract of employment. The focus of this article however, is a brief overview of the things to look out for when entering into a contract of employment.

More often than not, people tend to live under the illusion that they are in some sort of a contract of employment. This belief does not emanate from just one party.

The employment relationship existing between two parties as well as the type of union or interaction between two parties and how it is regulated would determine the kind of employment relationship that exists between them.

Universally, workers may be categorized into two, namely employees and independent contractors. This has been endorsed in a multitude of decisions to the extent that some even think that there may be a third category or a total absence of it. In the case of The Minister for Agriculture and Food v John Barry, Conor O’Brien, Mary O’Connor, Michael Spratt and Ciaran Dolan [2008] IEHC 216, it was posited that “although it is true that various courts, have from time to time characterized as tests a variety of approaches to be employed as aids to discerning the nature of the work relationship between two parties, there has in recent years been a move away from this.

It must be cautioned that the decisive question on what constitutes a contract of employment or contract for employment as has proven to be a most elusive one and despite an overabundance of authorities the courts have not been able to formulate a single test that will conclusively point to the distinction in all cases.

According to Chitty on Contracts^[1], there is no comprehensive definition of what constitutes a contract of employment or a contract for employment, and the decided cases merely indicate a number of indicia which are relevant to a finding that a particular contract is one of employment, or of service.^[2]

Considering the various decisions, a contract of employment may be identified by the degree of control exercised by the employer, whether the worker’s interest in the relationship involved any prospect of profit or risk of loss, whether the worker was properly regarded as part of the employer’s organization, whether the worker was carrying on business on his own account or carry on the business of the employer, the provision of equipment, the incidence of tax, the parties’ own view of their relationship and the structure of the trade or profession concerned and the arrangement within it.

Under the Labour Act of Ghana, 2003 (Act 651), it is provided in Section 12 that the employment of a worker by an employer for a period of six months or more, or for a number of working days equivalent to six months or more within a year shall be secured by written contract of employment which shall express in clear terms the rights and obligations of the parties.

A contract of employment may be from month, week to week or contract determinable by will, depending on how remuneration is paid, as is stipulated by Section 16 of Act 651.

An employer in Ghana is obliged to furnish his or her employee with a written statement of the particulars of the main terms of the contract of employment within two months after the commencement of the employment, subject to the terms and conditions of the contract of employment.  This is enshrined in Act 651 and it is the right of the employee in such a case to demand from the employer the said particulars.

The First Schedule of the Act outlines the various particulars that the employer is supposed to provide to the employee. These particulars would usually border on the details of the employer and employee alike. This information, in my opinion would give the parties an idea of the type of person or organization they are entering into a contract with.

The date of commencement of the contract of employment would also need to be indicated and this is imperative for a multitude of reasons. Where for instance the date of expiration is included, it would mean that the contract is a fixed-term contract hence the procedure relating to such a contract would be different from that of a permanent contract. Other categories of employment which are distinguishable from a permanent contract of employment include casual workers and temporary workers as provided for under sections 74 and 75 of Act 651.

The Act provides that the contract of employment of a casual worker need not be in writing. This implies that an oral agreement or implied agreement would be enough to create an employment relationship between the parties.

Where a person has been employed by the same employer for a continuous period of six months or more, the law would treat that person as a permanent worker irrespective of the fact that the person was employed as a temporary worker.

The identification of any worker as a temporary or casual worker does not disentitle such a person from all the incentives applicable to workers in an organization.

For the avoidance of doubt, it is important that as part of the particulars that an employer is mandated to provide to the employee, the former includes the job title and/or description of the employee, the rate, method and interval of payment of remuneration or salary, the minimum hours of work required of that employee, the periods of holidays and details of holiday pay as well as conditions relating to incapacity to work due to sickness or injury and the details of sick pay, if any.  These particulars to a large extent would iron out all creases that may appear in the employment relationship even before the start of the contract.

Most of the time, due to desperation on the part of the prospective employees, they overlook certain factors or conditions that ought to be fulfilled by their employers, one of such being the obligation of the employer to contribute a percentage on behalf of the employee to the social security scheme. Section 63 of the National Pensions Act, 2008 (Act 766) makes it mandatory for every employer to remit thirteen and half percent out of total contributions of eighteen and a half percent on behalf of the worker to the first-tier mandatory social security scheme with fourteen days after the end of each month to the Pensions Trust. Due to this requirement by the law, the employer while providing particulars of the contract, ought to indicate details of the scheme to the employee. An employee must be vigilant and ensure that his contract of employment is not silent on the pension scheme to avoid any disputes in the future.

Furthermore, the mode of notice of termination of employment (this will be discussed in detail in subsequent posts) is extremely vital and ought to be prescribed even before the employment relationship kickstarts. Section 17 of the Labour Act provides a guideline on the notice that ought to be given in terminating a contract of employment. Section 17 provides as follows:

1. “A contract of employment may be terminated at anytime by either party giving to the other party,
2. In the case of a contract of three years or more, one month’s notice or one month’s pay in lieu of notice;
3. In the case of a contract of less than three years, two weeks’ notice or two weeks’ pay in lieu of notice;
4. In the case of contract form week to week, seven days’ notice
5. A contract of employment determinable at will by either party may be terminated at the close of any day without notice.
6. A notice required to be given under this section shall be in writing.
7. The day on which the notice is given shall be included in the period of the notice.

Despite these provisions, the parties to a contract of employment are at liberty to decide on the terms regarding the notice to be given in terminating the contract. It should be noted that any alterations to the provisions in the act should be such as to expand the rights of the parties and not to limit it. Hence, while it may be expedient to indicate the type of notice to be given in terminating a contract, in the absence of any such arrangement, the provisions in the Labour Act will be applicable.

Again, it is very crucial for an employer to indicate to the employee the type of disciplinary rules that would be applicable to the latter to forestall any confusion regarding same. Similarly, the procedures for dealing with grievances or disputes between the employer and the employee ought to be categorically spelt out. The forum for dealing with such disputes ought to be stated clearly so that in the event of any such dispute a party would be aware of the first point of call.

All these particulars to be provided have been stipulated in the form as provided in Schedule 1 of the Act. It must be noted that the particulars may not be exhaustive and may differ from one organization to the other.

What is important however, is that parties need to be unequivocally agreed to the terms of the contract of employment to prevent any disputes.

POINTS TO NOTE

• A written contract of employment is important to secure the employment of workers, especially workers employed for six months or more
• A written contract is not really required for a casual worker
• All the particulars of the employment ought to be provided by the employer to the employer within two months of the employment
• The type of remuneration paid to an employee may help determine the type of contract of employment existing between parties.
• It is important for prospective employees to be extremely vigilant in executing contracts of employment.
• Organisations and employers are advised to seek legal advice in drafting contracts of employment.

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[1] Third ed. (Vol. 2) page 1008, para. 39-002

[2] Montreal Locomotive Works Ltd v Montreal and AG [1947] 1 D.L.R.

There is a Portuguese saying that “when the sea clashes with the rock , the clams suffer”. This is similar to the oft cited Kenyan adage that “when two elephants fight it is the grass that suffers”. Indeed, children are considered part of the “vulnerable” in the society and the most affected when there are issues with the family or the society as a whole.

The issue of custody of children is a very delicate issue that has garnered much attention especially with the prevalence of divorce in Ghana and the world at large.

Article 28(i) of the Constitution and Section 1 of the Children’s Act 1998 (Act 560) both define a child as a person below the ae of 18 years. The Act stipulates that the best interest of a child is to be considered paramount in all matters concerning a child.

The rights of the child are guaranteed by the Constitution and particularly Article 28 of the Constitution enjoins parliament to enact laws that are necessary to guarantee and make certain the rights of children in Ghana.

Ordinarily, every child has a fundamental right to grow up with his or her parents and no child should be stripped off this right, unless of course, living and growing up with the parents would result in significant harm to the child, subject the child to serious abuse, or not be in the best interest of the child. For that matter, the court treats custody issues with utmost priority as these issues are very important in ensuring that very important rights of the child are guaranteed.

In this article we examine the factors that a court would consider in giving custody of children to persons.

The Courts Act 1993 (Act 459), by section 18(1) clothes the High Court with the power to appoint guardians for infants, make orders concerning the custody of infants, the right of access to infants and periodical payment towards the maintenance of infants, make orders concerning the administration of the estate of infants, as well as setting them up in occupation or careers. In matrimonial cases where there are custody issues, Section 34 of the Matrimonial Causes Act, 1971(Act 367) the High Court is again empowered to make child custody arrangements whenever the child whose custody is in question is present in Ghana.

Section 47(2) of Act 459 as amended by section 125 of the Children’s Act 1998 (Act 560) also seems to empower a Community Tribunal which has the jurisdiction of a District Court to hear and determine any action arising under the Children’s Act. Though these two provisions above may reek of conflict, especially as to which forum to institute actions concerning children it is my humble opinion that this rather affords an applicant the opportunity to elect which of the fora to bring such actions especially since the High Court has jurisdiction in all matters except those specifically excluded.

As has already been stated, issues concerning a child ought to be considered while prioritizing their best interest as well as their welfare.

This was extensively discussed in the classic case of Braun v Mallet [1975] 1 GLR 81 where the court posited that in questions of custody it was well-settled that the welfare and happiness of the infant was the paramount consideration…… In considering matters affecting the welfare of the infant, the court must look at the facts from every angle and give due weight to every relevant material.

In arriving at its conclusion, the court considered very peculiar issues that were deemed relevant, after which it stated that “in the circumstances, and regardless of the domicile of the parties, it would be contrary to natural justice, equity and good conscience to deprive the plaintiff of the custody of her son and he should be returned to her forthwith.”

It may be surmised from the above proposition of the court that irrespective of the factors that have been laid down as the guiding principles in the grant of custody of children, each case should be treated with peculiarity according to the circumstances surrounding it.

Section 43 of the Children’s Act, 1998 (Act 560) provides as follows:

“A parent, family member or a person who is raising a child may apply to a family tribunal for custody of the child.”

Per the Act, it is not only a child’s parents who may apply to obtain custody of that child but any other person who is raising that child may actually do so.

According to Section 45 of Act 560, in addition to considering the best interest of the child as well as the importance of a young child being with the mother, a family tribunal has to consider the age of the child, the fact that it is preferable for a child to be with the parents except where the rights of the child are persistently being abused by the parent, the views of the child if the views have been independently given, that is desirable to keep siblings together, the need for continuity in the care and control of the child, and any other matter that the family tribunal may consider relevant.

In the paragraphs following, it would be shown through the discussion that, even though the court considers other factors in granting custody of children to persons the best interest of the child would always take precedence over all other factors. these factors which the court ought to consider in granting custody of children to persons would be discussed with the aid of decided cases.

One of the factors that may appeal to a court in granting custody of a child to a person is the age of the child. In many cases the court would usually grant custody of infant children to the mothers, all other things being equal. However, the best interest principle would still prevail regardless of the age of the child whose custody is in contention.

In Opoku-Owusu vs. Opoku-Owusu [1973] 2 349 where the wife prayed for the custody of the only daughter aged ten, the Court in arriving at its decision observed that in the normal course, the mother should have the care and control of very young children particularly girls or those who for some special reason need a mother’s care.

A different view was taken by the court in the case of Alexander Brutzer v Georgina Tetteh Haeusser & Anor [9/03/2012] Suit NO. BMISC.27/2010

In that case, the court refused to grant custody of a girl of about 10 years to the mother. The court stated as follows:

“In the instant case, I have considered the living conditions of the parties, and the backgrounds, the age of the girl Nikita, the country of her birth, the conduct of the parties especially that of the 1st defendant since the birth of Nikita and all other circumstances and have come to the conclusion that in all probability the welfare and well-being of Nikita weighs the decision as to custody in favour of the Plaintiff and I so decree. 1st defendant will however not be denied access to her child.  Whenever Nikita desires to visit her mother in Ghana Plaintiff must give her every assistance to do so.  Alternatively, Plaintiff must provide 1st defendant every necessary assistance to visit Nikita in Germany whenever she reasonably asks for that facility”.

So, in this case, even though the court considered the age of the child in the circumstance it was in the best interest of the child to be with the father and so the court refused the mother custody of the child and ranted her reasonable access.

Custody matters are mostly common in divorce cases where the marriage has produced issues. Usually the courts are saddled with the burden of pronouncing on who should get custody of the child, especially where there is disagreement between the parties.

Section 22(2) of the Matrimonial Causes Act, 1971 (Act 367) provides as follows:

“The court may, either on its own initiative or on application by a party to proceedings under this Act, make an order concerning a child of the household which it thinks reasonable and for the benefit of the child.”

Subsection (3) provides as follows:

“Without prejudice to the generality of subsection (2), an order under that subsection may

1. Award custody of the child to any person;
2. Regulate the right of access of any person to the child
3. Provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage.”

It is important to note that, the same principles apply when considering the grant of the custody of children in divorce matters. The best interest and welfare of the child is ultimate in coming to that determination.

In the case of Happee v Happee [1974] 2 GLR 186 there was evidence that the child of the marriage was aged 19 years and was pursuing studies in a secondary school with the possibility of continuing her education in a university.The court posited as follows:

”nothing should be done to thwart the chances of the child to pursue further education or training. Though the petitioner was a non-Ghanaian there was evidence that he was responsible for the child’s education and maintenance and that the behaviour of the respondent was so uncontrollable and dreadful as to be likely to be detrimental to the well-being of the child. In the circumstances and in all probability the welfare and well-being of the child would be better served if custody was granted to the petitioner; but if at any time the child expressed her desire to visit her mother she must be given every facility by the father to do so.”

It is apparent that the court took into account what in the circumstances would be the best interest of the child in arriving at their decision. Even in arriving at that decision, the court was quick to note that the father ought to make provision for the child anytime she so wished to visit her mother.

Upon reading the cases, it would be noticed that the courts have towed in a particular direction though their decisions are usually on a case by case.

In the case of Christiana Soti v Henry Nartey Soti [3/02/2012] Suit No. BDMC/308/2010 the court stated as follows:

“What the court deals with is the lives of human beings and ought not to be regulated by rigid formulae.  All the relevant factors ought to be considered and the paramount consideration being the welfare of the child. By paramount consideration, I mean pre-eminent ad superior consideration……..In making an order under section 44 of Act 560, the court shall take into consideration only the best interest of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. The court shall give effect to the principle that a child of a marriage should have as much contact with each spouse and for that purpose shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.  The court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of the person to act as the parent of the child. I am satisfied that the best interest of the child in this instance is that the petitioner shall have custody of Tetteh Soti aged 5 years, and the respondent shall have reasonable and generous access to the child as the parties shall agree.  I recognize that this aspect of the order may give rise to some difficulties, but in the best interest of the child, the parties must cooperate and diligently seek to overcome these difficulties, if the parties are unable to agree then this aspect of the order may be brought before me or the parties shall seek mediation before the department of Social Welfare to assist them in reaching an agreement.”

From the above, it is obvious that the court may consider many factors in granting the custody of a child to a person, but ultimately, it is the best interest of the child that would inform a court’s decision.

• What is a witness statement?

In every civil action, after the preliminary proceedings have been dealt with and all the rules complied with, the parties shall make an application for direction to the court subject to Order 32 of CI 47 (apart from those excluded by the rules) to enable it co.

The High Court (Civil Procedure) (Amendment ) Rules, 2014 (CI 87) stipulates that a fact to be proved at the trial of an action by the evidence of the witnesses shall be proved by a trial of their oral evidence given in court. This is however subject to the Constitution, the Evidence Act, 1975 (NRCD 323) as well as any other enactment to the contrary.  This is the general rule of evidence during proceedings at trial in a civil suit.

CI 87 enables a witness to give evidence through a video link or by any other means. However, it should be noted that there is requirement to serve witness statements for use at trial provided for by CI 87. This witness statement is defined by the rules to be a statement, signed by a person, which contains the evidence which that person would be allowed to give orally at the trial.

It is important that every detail of the witness statement is true and accurate as the witness writing that statement will be cross-examined on its contents. Moreover, there is a statement of truth at the end of a witness statement; to the effect that the witness believes the facts in the witness statement are true and accurate.

The person whose evidence is put in a witness statement may either be the party himself or a witness for a party. According to section 58 of the Evidence Act, 1975 every person including a child, is competent to be a witness and no person is disqualified from testifying to any matter.  The exceptions to the above is that a person is not qualified to be a witness if he is incapable of expressing himself so as to be understood, either directly or through interpretation by one who can understand him or incapable of understanding the duty of a witness to tell the truth.

The rules governing the use of witness statements are provided for by the High Court Civil Procedure Amendment Rules 2014 (CI 87) and these rules will be discussed in the next few paragraphs in addition to raisin an objection to a Witness Statement correctly.

Rule 3B(2) of the rules indicates that at the applications for directions stage, the court shall order a party to file and serve on the other parties any witness statement of the oral evidence, which the party serving the statement intends to rely on in relation to any issues of fact to be decided on at trial. This means that whatever evidence that the parties anticipate they will be relying on must be put in the statement and served on the other parties. This enables the other parties to know exactly what to expect at the trial. Just as pleadings are served on the parties with the intent of avoiding surprise for the other parties, so is the witness statement aimed at giving the other parties notice of the evidence to be adduced and also to save time in the adjudication process. In this case the opponent has ample time to examine and identify the areas where the witness would be subjected to cross-examination. This process of filing the witness statement also gives the court adequate time to get all the necessary authorities that will inform their decision at the end of the trial.

There are consequences for failure to serve a witness statement within the stipulated time. The effect of such failure is that the witness in question will not be called to give oral evidence unless the court grants leave. When this happens there is a risk of not getting certain important information or evidence to advance a party’s case. Such evidence will eventually end up being excluded and the court’s decision will not be a reflection of all the information available.

Rule 3E of the rules points out the use of the witness statement at the trial.  It stipulates that the witness statement shall be deemed as the evidence-in-chief of the witness unless the court otherwise orders.

• Raising objections to a Witness Statement

A party may pray the court to exclude evidence on grounds of inadmissibility for various reasons such as evidence being hearsay or self-serving .

It is worth noting though, that Rule 3E stipulates that a witness giving oral evidence at trial may with the permission of the court give evidence in relation to any new matter which has arisen since the witness statement was served on the other parties. This rule seems to have some semblance to Order 11 Rule 9 of CI 47 which provides that a party may in any pleading plead any matter which has arisen at any time, whether before or after the issue of the writ. It is apparent that the court will not restrict parties from raising new evidence or facts if there is reason to believe that these will aid the court in arriving at a fair decision. These two rules are distinct even though they serve the same intent and purpose; to allow for a fair determination of a case. This seems to be the case even in dealing with affidavits such that in the case of The Republic v High Court, Cape Coast; ex parte Korte [1999-2000] GLR the Supreme Court held that the Court was bound to consider a supplementary affidavit in order to be able to determine an application that was before it. Importing this same argument to the filing of pleadings as well as witness statements which is the subject matter of this discussion, it is expedient that the courts do not disregard evidence as well as facts in relation to new matters that may have arisen since those documents were served.

One must however not be oblivious to the fact that where the supplementary evidence being given at the trial seems to be inconsistent with the evidence in the witness statement, the opponent may raise an objection under Section 6 of the Evidence Act, 1975 (NRCD 323) as to the admissibility of such evidence. Even where the opponent raises no objection, the court may on its own motion, by relying on Section 8 of NRCD 323 exclude that evidence. In any event, Rule 3F of the Rules affords the opponent the opportunity to cross-examine a witness on the statement of that witness whether or not the statement or any part of it was referred to during the evidence in chief of that witness so that by section 75 of NRCD 323, in examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the trial, it is not necessary to disclose to him any information concerning the statement or other conduct. Usually what this implies is that in the closing address, the opponent can convince the court to exclude such evidence.

If evidence which could have been excluded is not objected to and it is entered as evidence, the court would be obliged to consider that evidence in making a determination of the matter.

To avoid such a situation, it is incumbent on parties to a suit to be vigilant and watchful and object to the admissibility of evidence where necessary.

The court is enjoined by law to encourage the resolution of disputes through alternative means other than litigation. Therefore, what power has the court to force a party who wishes to discontinue or withdraw an action to keep litigating? However, the rules of court prescribe the manner in which such discontinuance or withdrawal of actions ought to be done so that sanity would still be maintained. Furthermore in order to deter litigants from initiating frivolous actions thereby abusing the court process, the law confers on the innocent party the right to obtain costs from the party seeking to withdraw , even without any court order.

In this rather short exposition, the circumstances, as well as the times within which an action can be withdrawn or discontinued will be stressed upon, and of course the consequences (being the award of cost) of taking such steps would also be brought to light.   

Order 17 rule 2 of the High Court Civil Procedure Rules, 2004 (CI 47) provides as follows:

1. Except in the case of an interlocutory application, the plaintiff may at any time before service on the plaintiff of the defendant’s defence or after the service of it and before taking other proceeding in the action, by notice in writing wholly discontinue the action against all or any of the defendants or withdraw any part of the alleged cause of action and thereupon the plaintiff shall pay the defendant’s costs of the action or if the action is not wholly discontinued, the costs occasioned by the withdrawal.
2. Such costs shall be taxed, and the discontinuance or withdrawal shall not be a defence to any subsequent action.
3. Except as otherwise provided in this rule, the plaintiff shall not be untitled to withdraw the record or discontinue the action without leave of the court, but the Court may before, during or after the hearing or trial upon such terms as to costs and as to any other action as may be just, order the action to be discontinued or any part of the alleged cause of action to be struck out.

Order 74 rule 4 sub-rule 2 and 3 of CI 47 provides as follows:

(2) Where a plaintiff by notice in writing and without leave either wholly discontinues an action against any defendant or withdraws any particular claim made by the plaintiff against any defendant, the defendant shall be entitled, without an order of the Court, to costs of the action or costs occasioned by the matter withdrawn.

(3) Where a defendant by notice in writing and without leave discontinues a counterclaim against any party or withdraws any particular claim made by the defendant against any party, that party shall be entitled, without an order of the Court, to costs of the counterclaim or costs occasioned by the claim withdrawn, incurred up to the time of receipt of the notice of discontinuance or withdrawal.

HOW DOES A PARTY ENTITLED TO COST WITHOUT AN ORDER OBTAIN SUCH COSTS

The rules have defined instances where a party may recover costs without a court order, and the party so entitled may apply for assessment of the recoverable amount which if not paid within seven days, would entitle the party to sign judgment for the amount. This is provided for in Order 74 rule 8 of the CI 47.        

Signing judgment for the amount implies that the assessed costs may be treated as a judgment. Hence the party entitled to such costs may go through the appropriate processes to enter the judgment as is stipulated in Order 42(7) of the CI 47.

In any case Order 74 rule 11 of CI 47 provides as follows:

1. Where the amount of any costs has been assessed by the Court, payment of that amount may, subject to sub rule (2) be enforced in the same manner as a judgment or order for the payment of money.
2. No steps shall be taken to enforce the payment of costs until seven days after the date on which the amount of those costs is assessed by the Court or where an application for review is made under rule 12, until that application is determined.

The above clearly indicates that any one or more of the means employed in recovering payment of money such as the writ of fiery facias, garnishee proceedings, charging orders, appointment of a receiver, etc. may be adopted to recover costs from the party against whom the costs have been awarded.

A Party, who is aggrieved by the assessment of costs by the court on the ground that the amount assessed in favour of that party is inadequate; or the amount assessed against that party is excessive, may within fourteen days after the date of such assessment, apply to the Court to review its decision. This is provided for in Order 74 rule 12 of the CI 47.

It may be surmised from the discussion had, that costs may be treated as an order or judgment of the court such that an aggrieved person has an avenue within which to seek redress

• The Principle of Stare Decisis

Article 129 of the Constitution acknowledges the Supreme Court as the final court of appeal which shall have such appellate and other jurisdiction as may be conferred on it by the Constitution itself, as well as any other law. According to the Constitution, the Supreme Court which is the apex court of the land is at liberty not to follow the decisions of any other court even though all other courts are mandated by law to follow its decisions.

The latter may however depart from its own decisions when it becomes necessary to do so, even though ordinarily they ought to be bound by it.

The doctrine of stare decisis is of such sacred nature that a court which does not abide by its rules incurs the wrath of the law; the possibility of having its decision quashed. In the case of Republic v High Court, Ho; Ex Parte Evangelical Presbyterian Church of Ghana and Another [1991] 1 GLR 323  for instance, Adade CJ iterated:

“I find it insufferable that a court can ignore an order of a higher court immobilizing its judgment and with specious arguments rehabilitate its own. It is a sophistry that must receive the severest rebuke. It is subversive of the principle of stare decisis and a naked example of the flouting of constitutional proprieties. In my view, an order of the Court of Appeal has full force and authority until reversed by a superior court. It does not matter how the sty was initiated, who were actually involved or even the correctness of the decision. The Court of Appeal did not express a debatable point of law; it pronounced an order which the High Court was in duty bound to follow. Dialectical effusions of the kind indulged in by the High Court Judge should not be countenanced if we are to preserve and respect the authority of the tiers of jurisdiction. Thus Van Lare J.A (as Ag C.J) in Kwami v Quaynor [1959] GLR 269, C.A was compelled to chide a judge for indulging in such criticisms.”

The principle of stare decisis is indeed revered in the hierarchy of the courts. Therefore, unless special circumstances require that a particular binding precedent is not followed, the courts are enjoined by law to follow decisions of a higher court.

So, in the case of Loga v Davordzi and Others [1966] GLR 530, it was indicated that the flexible rule of stare decisis does not mean that the Supreme Court should start, in every case, to speculate on every ground on which a previous decision was based, and reverse its recent and well-considered decisions on controversial questions. Breaking free from that bondage of a binding precedent therefore becomes extremely difficult.

• Can a Court depart from a binding decision?

Even though courts are obliged to uphold the principle of stare decisis, there are certain situations which may require a departure from a binding decision. In the case of Samuel Osei Boateng v National Media Commission and Berifi Afari Apenteng [2013] DLSC2683, the erudite Justice Date-Bah pointed out that the court was not absolutely bound by an earlier decision regarding the correct interpretation of “discretionary power”. He stated further that the interpretation still remained opened and it could not be legitimately asserted that the meaning of “discretionary power” had already been authoritatively and conclusively determined. By this, the court had smartly absolved itself of the mandate of following its own previous decision having found that it did not apply in the circumstance it found itself in.

• When can a court depart from a binding precedent?

The circumstances or situations under which a court may depart from a binding decision are as follows:

1. Where the binding decision was made per incuriam
2. Where the facts are distinguishable enroll
3. Where there are two conflicting superior court decisions
4. Where an Act of Parliament has been passed since the precedent was given, the precedent will no longer bind the lower court or where a statutory effect which would have affected the decision was not brought to the attention of the earlier court. (Young v Bristol Aeroplane Company Ltd [1994] KB 718)

These factors listed supra, that may give rise to a court departing from a binding precedent may be inferred from the case of Republic v National House of Chiefs [02/12/2009] Civil Appeal J4/18/2009 in which case Dotse JSC stated with approval, the principles laid out in the case of Young v Bristol Aeroplane Co. Ltd. [1944] KB 718, CA or [1944] 2 All ER 293.

In the case of Martin Kpebu v Attorney General [Civil Appeal No.J1/13/2016][5/5/2016], the Supreme Court intimated as follows:

“Clearly, undergirding the doctrine of stare decisis and its related principles as pertains to this court’s governing jurisdiction, is the fact that the decision from which the departure is urged, is a definitive or conclusive decision in a previous action.”

This goes to show that a decision of a superior court would only be binding on the lower court where that decision was a definitive or conclusive decision in the previous action.

In the ensuing paragraphs, the circumstances under which a court may depart from a binding decision would be elaborated with the aid of decided cases.

• Where the facts of the present case can be distinguished from the previous decision which is binding

In the case of Martin Alamisi Amidu v AG, Isofoton and Anane-Agyei Forson [21/06/2013]  Writ No, J1/23/2012, it was noted that the AG v Facoe Atlantic Co. Ltd and the AG v Balkan Energy Ghana Ltd and 2 Others were not applicable in that instant case because, the Relationship between the Financial Protocol and the impugned agreements injects a novel element not present in those two cases. As such, the case was not covered by stare decisis.

It is apparent from this that, a court may depart from such precedent if they are able to show that there are marked differences in the decision being relied on and the case upon which a pronouncement is sought.

Reference ought to be made again, to the case of Republic v National House of Chiefs [02/12/2009] Civil Appeal J4/18/2009 cited supra  in which case it was made clear that the likeness of the previous decision to the present decision must be considered in concluding whether or not to follow that previous decision. Dotse JSC posited that:

The principle is based first of all on the relevant likeness of the previous decisions or the relevance of the principle of law decided in the previous case and the instant one. If however, there is no likeness between the two, then there is no need to consider whether the previous one should be followed or not. It is the art of following the decision in the previous case or being able to distinguish the principle of law decided in the previous case form the one before the Court, that will determine its applicability.

Deductions may be made from this proposition to the effect that a court ought not to be bothered about following a decision which has no semblance, either in facts or in principle to the one being considered.

• Where the decision was made per incuriam

In the case of Agyekum v Asakum Engineering and Construction Ltd [1989-90] 2 GLR 650 the court stressed on the fact that no judge is bound by the legal misapprehensions of another judge, let alone one of co-ordinate jurisdiction. it concluded by saying that the rules of stare decisis do not extend to errors per incuriam even from the highest court of the land.

A mistake by a superior court must therefore not be endorsed by a lower court merely in the name of hierarchy. The court seeking to depart from the said binding precedent must be able to intrepidly point out the said error and direct itself to the correct proposition of the law by grounding it on solid authorities.  Merely declaring a precedent as having been made per incuriam does not empower the court from departing from the decision.

For instance, in The Republic v The High Court, Accra Ex-Parte: Expendable Polystrene Products Limited [24/07/02] C.M. 21/2002, Bamford-Addo JSC in a quest to depart from the case of Republic v Judicial Committee of the Central Regional House of Chiefs; Ex parte Supi Mark Aaba and Others C.A. No 1/99 of 25/7/2001 said the following:

“I have carefully considered the above mentioned case. it appears to me that the Court’s attention was not directed, to nor did it consider the relevant provisions of the Constitution which I have referred to in this judgment. In my opinion if it had done so, I have no doubt that a different conclusion would have been arrived at which would conform with my views as expressed in this Ruling. Therefore, the judgment in the Ex parte Supi Aaba case supra was given per incuriam and Applicant’s reliance on it is unhelpful to this case.”

It is clear that in the case above, the learned Justice identified the error in the previous decision before going ahead to declare it as having been made per incuriam.

Furthermore, in the case of Nye v Nye [1967] GLR 76-91,  Akuffo-Addo C.J. took cognizance of the dissenting opinion of Azu Crabbe JSC in the case of Loga v Davordzi which had been a focal point for the determination of the case at hand and quoted it with approval in the following manner:

“…A previous decision is regarded to have been given per incuriam if the decision must have been different had the court been referred to a particular statute or statutory rule or some authority decisive of the issue. In Morelle Ltd v Wakeling [1955] 2 Q.B. 379 at page 406, the Court of Appeal in England was asked to consider the meaning of the words per incuriam, and Evershed M.R., who read the judgment  of the court, said: ‘As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.’ In the present case it has not been shown that in Nye v Nye any statutory provision or binding authority was overlooked. Indeed, Nye v Nye dealt specifically with subrules(1) and (4) which we are here asked to construe, and no argument has been advanced to persuade me that any part of that decision or a step in the reasoning on which it was based is faulty. Accordingly, I differ that Nye v Nye was decided per incuriam.” To the extent therefore that the decision in Loga v Davordzi declares the decision in the Nye v Nye application to be given per incuriam, that decision is wholly wrong.

• Where there are two conflicting superior court decisions

It has been held in a litany of cases that a lower court is at liberty to follow any one of several decisions of a higher court which are conflicting. In a quest to demonstrate such choice, Amua-Sekyi J (as he then was) in the case of Amponsah v Appiagyei; Amoah v Anthony; Boakye v Effah; Boateng v Boahen (Consolidated) [1982-83] GLR 96 at 109, expressed the view that:

“The Principle of judicial precedent requires that a lower court takes due notice of and apply decisions of a higher court which are binding on it. this however, does not mean that such decisions ought to be slavishly followed even when they are demonstrably wrong.”

The above case was relied on by Essiem JA when he sought to propagate the choices of a lower court faced with conflicting higher court decisions in the case of Darke and Another v Dei XI and Another [1991] 2 GLR 112-150. He said

“In my opinion, when a lower court is faced with conflicting decisions of a higher court, it has a choice to follow any of those conflicting decisions. Furthermore, my understanding of the law is that where a decision of a court is in clear conflict with the provisions of a statute, any court faced with the problem of choosing between the law and a decided case must comply with the provisions of the statute.”

• Where a decision of a court is in clear conflict with the provisions of a statute

A court’s decision, deemed as binding on other courts may be in conflict with the provisions of a statute or even the constitution. This may arise as a result of that decision having been given prior to the promulgation of the said statute. Moreover, that decision may have been given without recourse to the said statute. No matter the circumstances resulting in the said conflict, it has been held that the statute would have to take precedence over the said decision. Therefore, in the case of Edusei v Diners Club Suisse SA [1982-83] GLR 809, the Court of Appeal speaking through Francois J.A. (as he then was) took the view that

“…where there are competing calls on a court, as to which authority to comply with, obeisance is due to statute rather than the decision of a higher court however exalted.”

Grounding itself on the decision in the Diner’s Club Case, the Court of Appeal in the case of Darke and Another v Dei XI and Another cited supra, projected the supremacy of a statute over a court decision and stated that “the courts exist to do justice and are duly bound to observe and enforce the law of the land. Where a court, however exalted, gives a decision which is contrary to the mandatory provisions of a statute, that decision is illegal and it becomes the duty of the court to vacate it and ensure that justice is done. The doctrine of judicial precedent is based on the presumption that the higher court had itself acted lawfully. Where it is plain that a higher court has acted illegally it would be a complete denial of justice for anyone to hide behind the doctrine of judicial precedent to enforce the illegal orders of the court concerned.”

There is no iota of doubt, that where there is in existence a binding decision on a particular subject matter by a superior court, it ought to be followed. However, there is no mandate or compulsion on a court to slavishly follow a decision which has not been made within the ambits of the law.

The Criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides the means of instituting criminal proceedings in the various courts.

Article 88(2) and (3) of the Constitution stipulates that the Attorney General shall be responsible for the initiation and conduct of all prosecutions of criminal offences and all offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorized by him in accordance with any law.

Section 60 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) captioned “method of instituting criminal proceedings”, provides that subject to Article 88 of the Constitution, criminal proceedings may be instituted before a district court, by making a complaint and applying for the issue of a warrant or a summons in the manner prescribed under section 61 of Act 30, or by bringing a person arrested without a warrant before the court on a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against the person and the time when and the place where the offence is alleged to have been committed.

By the same provision, the charge sheet shall be signed by the police officer or public prosecutor in charge of the case and the validity of the proceedings instituted or purporting to be instituted under subsection 1 shall not be affected either by a defect in the complaint or charge sheet or by the fact that a summons or warrant was issued without a complaint, or in a case of a warrant without complaint on oath.

In the ensuing paragraphs the various components of a charge sheet will be examined and their functions discussed.

• Heading

Usually, the document containing the charge is headed by the name of the court where the trial is to take place. It is followed by the area where the court is exercising jurisdiction. This enables the person being charged to know the jurisdiction within which he or she is being charged

• Statement of Offence

The charge itself must contain two elements, namely a statement of the offence alleged to have been committed together with particulars of offence which explains the exact thing done by the accused to constitute an offence.

The statement would usually describe the offence shortly in ordinary language, avoiding as much as possible the use of technical terms, and without necessarily stating all the essential elements of the offence. Where the offence is one created by enactment, it must contain a reference to the appropriate provision in the enactment.

The first part of a charge must state the specific offence with which an accused person is charged. So in Donkor v The State [1964] GLR 598 it was stated that a charge of extortion under Section 239 of Act 29 involves extortion by a public officer or juror. A count in the information or charge which merely stated the offence as extortion without any further words to show the specific offence of extortion was inherently bad as it violated Section 112(1) of Act 30.

In the same case it was shown that the second part of a charge must give particulars of the charge. The particulars that the appellant held a public office and that he demanded and received money under colour of his office were omitted and these were matters that went to the root and formed the essence or gravamen of the offence. Their omission was fatal since the charge as it stood disclosed no offence.

• Particulars of Offence

The purpose of the particulars of offence is usually to enable the prosecutor give reasonable information as to the nature of the charge. The necessary particulars must be set out after the statement of offence in ordinary language. The use of technical terms is not necessary as is emphasized in section 112 of Act 30. In the case of indictments, it is provided that where any rule of law or enactment limits the particulars of an offence required to be given, the rule here stated cannot be taken as requiring more particulars to be given than those so required.

It is always expedient when drafting the particulars of the offence charged, to follow with some precision the wording of the section defining the crime and alleging that the accused did an act having the ingredients of the offence.

• What is the effect of an irregularity on a charge sheet?

Supplying defective particulars has often led, and may still lead to the quashing of convictions based on the charge. However, the courts are hesitant to quash convictions based only on the reason that the charge sheet is defective, especially if it is shown that the accused understood the offence he was being charged with.

Section 112 of Act 30 as amended by Act 261, Section 1 provides as follows:

“(1) Subject to the special rules as to indictments mentioned in this section, a charge, complaint, summons, warrant or any other document laid, issued or made for the purpose of or in connection with proceedings before a Court for an offence shall be sufficient if it contains a statement of the offence with which the accused person is charged, together with the particulars necessary for giving reasonable information as to the nature of the charge and although there may be a rule of law to the contrary it shall not be necessary for it to contain any further particulars other than necessary particulars”.

The issue of whether or not a defect in the charge sheet is fatal to the criminal procedure has vexed the courts for so long. There are instances where a conviction is quashed because of an error in the charge sheet; there are other instances where the courts have ignored such errors for want of substance.

In the case of Datsa v The Republic [1971] 1GLR 418, the appellant, a post office counter clerk, had her accounts satisfactorily checked at the close of work on a Saturday. Within a few hours of the commencement of work on the following Monday, her accounts were again checked and a shortage was discovered. She was charged and convicted based on a statement of offence which did not state the offence but rather the particulars of the offence. The appellate court held that since no specific offence was charged, the court had no jurisdiction to convict. The court went on to admonish that the accused must always know with certainty what it is that he may be convicted of.

Amissah, for instance refers to the case of Boateng v the Republic[1969] C.C. 20 to explain the difference between the offence creating provision and the provision defining the offence. In that case, the charge was corruption by a public officer contrary to section 244 of the Criminal Code (as it then was). Section 244 of the Criminal Offences Act, 1960 (Act 29) actually provides that “where, after a person has done an act as a public officer, juror, or voter that person secretly accepts, or agrees or offers secretly to accept for personal gain or for any other person, a valuable consideration on account of the act, that person shall be presumed, until the contrary is shown, to have acted corruptly, within the meaning of this Chapter, in respect of that act before the doing of the act”.

The appellant was charge with and convicted on a charge of accepting a bribe after doing an act, contrary to Section 244 of Act 29, after a summary trial. He appealed; arguing that section 244 only described the offence but did not create it.

The appellate court held that the proper section to refer to was not Section 244 which was no more than a rule of the offence, creating a presumption which was rebuttable, but Section 240 of the Criminal Offences Act. They however stated that in the case of summary trials, the charge sheet need not state the section or the Act under which the accused is charged. It is sufficient if the accused is given enough particulars to indicate to him the nature of the offence.

There seems to be an inconsistency in the position of the courts in the two cases. On one hand, the court seems to be suggesting that an error in stating the offence in a charge sheet should be ignored. On the other hand it seems to be suggesting that the court must not gloss over an error which may occur when stating the offence in a charge sheet.

Section 112 (2) of Act 30 provides that the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence and where the offence is one created by an enactment may contain a reference to the enactment.

The Act itself relaxes the rules of drafting, encouraging that as much as possible the language used in drafting must be ordinary and not technical to enable the accused appreciate what exactly he is being accused of. So, in the case of Andoh and Another v The Republic [1970] C.C. 42 C.A, the statement of offence was correct whiles the particulars of offence were improperly stated. It was held that where a statement of offence has been properly stated but the particulars fail to contain any of the essential ingredients of the offence then it becomes a statement of offence with incomplete or defective particulars and not a bad indictment or one that is unknown to the law. In this case the Court stated that the Supreme court cases of Akowuah v C.O.P [1964] and State v Boahene [1965] were decided per incuriam. In the former case, the Supreme Court sought to make a distinction between certain particulars of a charge which were only necessary to give reasonable information as to the nature of the charge, and others which constituted the gravamen of the offence charged.  The Court said that omission to include charges in the first instance would render the charge fatally bad but merely defective which defect could be filled by evidence at the trial. It was quick to add however, that omission to include in the charge the particulars in the second instance was fatal because no offence would be disclosed and the omission could not be cured by amendment.

Notwithstanding these decisions, the courts have in many instances tried to make a clear case as to the effect of a defect on the face of a charge sheet. At this juncture we would revisit section 60(3) of Act 30 which stipulates that the validity of proceedings instituted or purporting to be instituted under subsection 1 of section 60 shall not be affected either by a defect in the complaint or charge sheet or by the fact that a summons or warrant was issued without complaint, or in a case of warrant without a complaint on oath. The combined effect of sections 60 and 112 of Act 30 is that it is enough that the accused is able to deduce from the charge sheet the offence with which he is being accused of. It is immaterial that technical words are not used to draft the charge sheet.

From the foregoing, it appears that defective particulars in a charge might not render the charge fatally bad, especially where the statement of the offence was correctly made out and where the evidence adduced had cured the defect in the particulars of the charge and this was asserted in the case of Kungua and Others v The Republic [1984-86] 2 GLR 489.

Another case that drives home the point is the case of Arthur v The Republic [1976] 2 GLR 250. In this case the appellant sexually assaulted a three-year old girl. In the particulars of offence, it was stated that the appellant assaulted the victim’s mother. He was convicted. The appeal was dismissed to the effect that by Section 112(1) of Act 30 as amended by Act 261, a statement of offence with incomplete or defective particulars was not a bad indictment or one that was strange to the law. The court went on to say that in the instance there was no doubt in the mind of the accused as to the person he was alleged to have assaulted.

The question that still remains unanswered therefore, is how the courts determine that a particular defect on a charge is so fatal as to warrant quashing of a conviction or an acquittal.  

The courts have held in several cases that where no substantial miscarriage of justice has been occasioned by the error, objections to convictions founded on the charge should not be entertained. It was observed in Republic v Dufa [1976] 2 GLR  that where the relevant executive instrument imposing the maximum control price for the time being against which the accused was alleged to have offended was not included, the charge unless amended will be held irredeemably bad.

In Gundaa v The Republic [1989-90] 2GLR 50 it was held that since the charge of deceit of a public officer was known to the Criminal Offences Act and the particulars of offence in the case stated concisely and precisely what the accused was charged with, the error in stating section 257 instead of section 251 of Act 29 as the offence creating section was a mere technicality which did not occasion a substantial miscarriage of justice – a conclusion also supported by the provision in section 406(1) of Act 30. However, the unrepresented and illiterate accused could not have been expected to raise any objection to the charge sheet “at an earlier stage in the proceedings” as required by section 406(2) of Act 30.

Despite the fact that an error on the face of the charge sheet should not affect proceedings, the laws make it quite clear that an amendment to a Bill of Indictment or Charge Sheet may be made at any stage of the trial unless having regard to the merits of the case, the amendment cannot be made without injustice. Hence, in the case of Okeke v The Republic [2012] 2 SCGLR 1105, the court noted that counsel for the appellant had not objected to the amendment made by the prosecution. The court also noted that counsel for the appellant was unable to show in his statement of case the manner in which the amendment occasioned an injustice to the appellants. In dismissing the appeal, the court stated that it was not sufficient for counsel for the appellant to simply make a sweeping statement that a substantial miscarriage of justice to the appellants has occurred, without showing how it was caused.

Section 109 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) posits that several charges could be joined in the same Charge Sheet and tried together provided the charges were founded on the same facts or form part of offences of the same or similar character. However, in the case of Doe v The Republic [1999-2000] 2 GLR, the court held that consolidation of charge sheets was not known in criminal trials, hence the procedure adopted by trial by consolidating the charge sheets and thereafter conducting the proceedings under the joint charge sheet was irregular and was neither justified by any known provision in Act 30. The appeal court was however careful to add that the irregularity did not however, vitiate the proceedings.

From the discussions above, it seems that there is always a method to a madness and despite a charge sheet being irregular, its purpose is to charge an accused of an offence and possibly get the court to convict that accused person for a stated offence. Therefore, a mere irregularity on the face of the charge sheet should not render it void. However, if the error is such as would occasion a miscarriage of justice on the accused, then that error would be thoroughly considered by the court.

Introduction

In every institution, there are disciplinary measures that are put in place to check the conduct of the members of the institution. There are some institutions and bodies that have committees or boards set up to consider disciplinary issues as and when they come up. For instance, the Legal Profession Act, 1960 (Act 32) by section 17 provides for a disciplinary committee to look into the conduct of lawyers especially where there has been a complaint against them. The Police Service is no exception to institutions that have disciplinary measures in place. One of the methods usually adopted by the Police Service is the Service Enquiry procedure.

A service enquiry refers to a formal investigation into the conduct of police officers to ascertain whether or not there has been a breach of any rule on misconduct.

 In the Police Service Act, 1970 (Act 350), certain activities have been categorized as misconduct behaviors. These behaviors have been outlined in section 17 of the Act. These may include absence from duty without leave or reasonable excuse, divulging confidential information to a person not authorized to receive it, engaging in a gainful occupation outside the Service without the consent of the Inspector-General as well as being insubordinate.

Apart from these misconducts that police officers are forbidden from engaging in, Section 23 of Act 350 also gives an opportunity to members of the public to be able to bring complaints against police officers in writing to the Inspector-General of Police, where there have been instances of a neglect or non-performance of duty by a police officer, an instance of bribery, corruption, oppression or intimidation by a police officer or any other misconduct by a police officer.  The Act further provides that the Inspector-General or superior police officer, on receiving such written complaint shall cause a full and impartial investigation to be made, and shall send a report of the conclusion to the complainant, and take an action on the report as the circumstances may require.

In consonance with the above and in order to ensure that sanity is maintained in the Police Service, section 19 makes provision for a disciplinary authority as follows:

1. The president acting in accordance with the advice of the Police Council shall have disciplinary powers over police officers
2. The President may delegate disciplinary powers in respect of all or any police officers to the Inspector-General, and may authorize the Inspector-General of Police to exercise all or any of those powers through a disciplinary board or superior police officer in accordance with the Regulations made under section 20
3. A person or body in whom disciplinary powers under this Act are vested is a disciplinary authority for the purposes of this Act.

Even though the disciplinary board may cause investigations to be made into the conduct of a police officer, they must do so in accordance with the Police Force (Disciplinary Proceedings) Regulations, 1974 (LI 993).

Disciplinary proceedings in the police service may either be summary or formal but where the proceedings are summary, the disciplinary board shall NOT impose a major penalty on an officer especially where the proceedings do not arise out of a conviction.

At the commencement of the hearing the charge shall be read over and, if necessary, interpreted and explained to the defendant; the defendant shall then be called upon to plead guilty or not guilty and any written statement in explanation which the defendant may have made in accordance with the regulations shall be put in evidence when the time comes for the defendant to make his defence, and shall be read over by the disciplinary authority to the defendant, who shall then be permitted, if he so wishes, to make a further verbal statement in explanation.

Regulation 10(2) stipulates that a plea other than “guilty” or “not guilty” shall not be accepted, and where a defendant persists in making a plea other than “guilty” or “not guilty” or refuses to plead, a plea of “not guilty” shall be entered on his behalf by the disciplinary authority.

The above is the general nature of how disciplinary proceedings are conducted. The Police Service Instruction 51 details how a service enquiry, which is part of the formal proceedings are conducted.

One issue which is quite mind-boggling is whether or not a service enquiry proceeding is to be considered as a criminal proceeding. In the next few paragraphs, we are going to journey through how a service enquiry is conducted pursuant to the Police Service Instruction 51 and determine whether indeed it is criminal proceeding or not.

Is a service enquiry a criminal proceeding?

The Criminal and other Offences (Procedure) Act, 1960 (Act 30) provides that a criminal offence under the Criminal Offences Act, 1960 (Act 29) shall be enquired into, tried and otherwise dealt with in accordance with the Act and an offence under any other enactment shall, subject to that enactment, be enquired into, tried and dealt with in accordance with this Act. This implies that apart from the Criminal offences Act, Act 29, there may be other offences defined in other enactments.

Usually, the mode of trial of an offence is dependent on the type of offence it is. Act 29 defines certain offences as misdemeanors, first or second felonies and these categories determine the kind of punishment that comes with it.

Section 2 of Act 30 makes reference to two types of trials namely summary trial and trial on indictment. The section stipulates that an offence shall be tried summarily if the enactment creating the offence provides that it is punishable on summary conviction, and does not provide for any other mode of trial or the enactment creating the offence makes no provision for the mode of trial and the maximum penalty for the offence on first conviction is a term of imprisonment not exceeding six months, whether with or without fine.

Furthermore, an offence shall be tried on indictment if it is punishable by death or it is an offence declared by an enactment to be a first degree felony or the enactment creating the offence provides that the mode of trial is on indictment. So, in the case of Amadu Fulani v The Republic [1968] GLR 66, the appellant had been convicted on charges of conspiracy to steal, unlawful entry and stealing property of a certain value. He was sentenced to seven years’ imprisonment after being tried summarily at the circuit court. He appealed against the sentence to the High Court. The issue was whether or not with the enactment of Act 29 and 30 there was no longer any correlation between the gravity of an offence and its mode of trial and punishment. The court held that there was a correlation between the gravity of offence and its mode of trial and punishment since section 2 of Act 30 provided for the mode of trial of offences such that grave offences were to be tried on indictment and trivial cases to be tried summarily.

The Police Service Act 1970 (Act 350) as well as the Police Force (Disciplinary Proceedings) Regulations, 1974 (LI 993) makes reference to formal proceedings and summary proceedings of the Disciplinary Board. As may have been observed above, the main difference between these modes of enquiry is the nature of the punishment to be imposed among other things such that in formal proceedings the case may require the imposition of a major penalty.

The Police Service Instructions pursuant to the LI 993 and Act 350 outlines the procedure involved in a service enquiry. Usually, when a member of the Service is charged with a disciplinary offence of such nature that it is reported to the IGP pursuant to the provisions in Act 350 and LI 993, and the IGP has directed that the case shall be dealt with by the Police Disciplinary Board, the disciplinary board shall issue directions in accordance with the regulations.

If the disciplinary Board directs that a service enquiry shall be held, evidence shall be taken on oath or affirmation and the proceedings and the evidence shall be recorded in writing in accordance with the powers conferred on Senior Officers and in accordance with the provisions of this service instruction. For the purposes of a service enquiry police form 7 shall be used.

On receiving the direction of the IGP, the disciplinary Board, having caused such preliminary investigations as may be considered necessary to be made and having found that there is a prima facie case, shall frame charges against the member of the Service concerned, issue the necessary directions and nominate the senior officer who is to hold the enquiry.

When a senior officer receives the instructions of the disciplinary board to hold a service enquiry, he shall communicate the charge to the defaulter verbally if the defaulter is stationed in the Senior Officer’s Headquarters. However, if he is stationed at a distance from the Headquarters, it shall be done in writing. At the same time the defaulter shall be informed that he may, within three days if he so wishes, submit a written statement in exculpation of his offence.

Should the defaulter’s statement produce evidence, which appears to exculpate him, the senior officer shall report to the senior officer in charge of the region, by forwarding the statement. If the senior officer in charge of the region having read the statement, is of the opinion that the enquiry should proceed, he shall instruct accordingly and shall inform the disciplinary board of the action he has taken. If he is of the opinion that the defaulter has exculpated himself, he shall forward the statement to the Disciplinary board.

If the defaulter has submitted a statement in an attempt to exculpate himself and an enquiry follows, this statement shall be produced in evidence at the enquiry when the time comes for him to make his oral statement, if any in his defence. The statement shall be read over to the defaulter by the senior officer holding the enquiry who shall then ask the defaulter if he wishes to say anything in addition. If the defaulter does so, his verbal statement shall be taken down in writing.

In the case of enquiry into a disciplinary offence by a member of the service of the rank of inspector, the defaulter shall not be charged unless and until the directions of the IGP or the Disciplinary Board are received (Police Service Instruction 50 (a) and (10)).

At a service enquiry the procedure shall be as follows:

1. The defaulter shall be charged and if necessary, the charges shall be interpreted and explained to him.
2. The defaulter shall be called upon to plead
3. The evidence shall then be led on oath or affirmation
4. Opportunity shall be given to the defaulter to cross-examine any witness who may be called to give evidence against him
5. The defaulter shall then be permitted to give evidence and to call witness on his own behalf
6. When a defaulter, having heard the charges, wishes to make a statement, he shall be informed that any statement he may make may be made on oath at his option, and that any statement he may have made in accordance this service instruction will be put in evidence together with his oral statement.
   
   

From the above, one may argue that a service enquiry is a criminal procedure. The possible reasons to be proffered may be the fact that just like in a criminal proceeding, the defaulter is asked to plead after the charge is read to him and a punishment is meted out to the guilty party.

However, on a critical look at the procedure involved in a service enquiry, it is apparent that the procedure is more or less an administrative procedure. However, the body involved in the enquiry must conduct the proceedings in accordance with the regulations or instructions as provided internally and in accordance with law. Therefore, an aggrieved party may apply to court to have the decision quashed. So, in the case of Republic v Inspector-General of Police; ex parte Wood [1973]2 GLR 113-117, the applicant averred that the service enquiry that was held leading to his dismissal was flawed because the Regional Police Disciplinary Board which was bereft of the power to appoint a senior officer to carry out the enquiry actually appointed that officer, instead of the Inspector General of Police who was clothed with that power. He therefore applied for a Certiorari to have the dismissal quashed. The court speaking through Edusei J, held that having regard to the provision of Act 350 as well as the LI, the only person competent to appoint in writing a superior police officer to hold a service enquiry was the IGP and as such in the circumstance the enquiry carried out by the Senior Police Officer was a nullity.

Furthermore, a service enquiry is not a criminal proceeding because in the Police Service Disciplinary Proceedings Regulations, 1974 (LI 993), criminal proceedings against service members are provided for under Regulations 21. Regulation 22 also stipulates that where a member of the Force is convicted of a criminal charge in any court, the facts shall be reported to the Inspector-General who, if satisfied that the conviction has brought such a degree of disrepute on the Force as to warrant the dismissal or removal of the person so convicted, shall refer the matter to the appropriate disciplinary authority for the imposition of such penalty as the disciplinary authority may think fit. The fact that criminal proceedings have been provided for differently from formal and summary proceedings of the disciplinary board which is usually the service enquiry is also demonstrative of the fact that service enquiry is not a criminal proceeding and in Ghana, it is only the court that can convict a person of a crime.

 Besides, apart from the activities that have been listed as misconducts under section 17 of Act 350, the Act does not make provision for any other offences. This implies that should a police officer engage in an offence defined in the Criminal Offences Act, that officer would be prosecuted in accordance with the Criminal and other Offences (Procedure) Act, 1960 (Act 30). So, in the case of Gligah & Atiso v Republic [2010] SCGLR, Dotse JSC emphasized that “in the present case, the accused persons who are policemen and mandated to maintain law and order but have rather become the perpetrators of crimes against innocent law-abiding citizens who they are to protect must receive harsh and deterrent sentences. Even though the parties involved in the crime were police service personnel, the crime was prosecuted in a trial court.

It must be noted however, that by section 22 of Act 350,where a member of the Force is convicted of a criminal charge in any court, the facts shall be reported to the Inspector-General who, if satisfied that the conviction has brought such a degree of disrepute on the Force as to warrant the dismissal or removal of the person so convicted, shall refer the matter to the appropriate disciplinary authority for the imposition of such penalty as the disciplinary authority may think fit.        

This implies that a service enquiry is a formal procedure adopted to enquire into the conduct of a service personnel. It is not criminal procedure. However, where the offence being enquired into is a criminal offence the proceedings would be held in accordance with Service Instruction 56 pursuant to Regulation 21 of LI 993 or it will take the normal course of a criminal trial under the Criminal Offences Act, 1960 (Act 29). Where the proceedings are carried out in accordance with Regulation 21 of LI 993, then the evidence of a witness at the enquiry must be subject to the same standard as in a criminal trial. Since this is usually conducted by the disciplinary board which is an administrative body. Case in point is the case of Akainyah v The Republic [1986] GLLR 33. In that case it was held that in an inquiry held under Act 230 where the findings of fact constitute a prima facie case against an accused person in a subsequent criminal trial, the commissioner should approach the evidence of the witness whom he considered accomplices with the same caution as he would approach it if they were witnesses for the prosecution in an ordinary criminal trial. The trial judge had erred in holding that the rule which required corroboration of an accomplice’s evidence was inapplicable to a commission held under Act 230.

It has been emphasized by law that a member of the security services is not exempted from prosecution merely because the act constituting the offence is also punishable by a disciplinary code. The court held in the case of State v Obeng and Others [1967] GLR 91 that it was an untenable proposition that any class of persons should be exempted from the application of the criminal code by virtue of their association or employment. On the contrary where an enactment provided for the discipline of a class of persons, those persons were liable to be charged by the state under the criminal code and by whoever was so empowered under their special code of discipline for conduct which was in breach of both codes.

From the above, it is safe to conclude that a service enquiry is not a criminal procedure. However, in the course of proceedings, if crime is imputed, then the Criminal and Other Offences (Procedure) Act as well as Section 13 of the Evidence Act, 1975 (NRCD 323) would apply in proving the alleged crime.

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