Quayson Vrs Attorney General (GLR 295-300) [1981] GHACA 1 (20 July 1981);

QUAYSON v. ATTORNEY-GENERAL [1981] GLR 295-300

COURT OF APPEAL, ACCRA

20 JULY 1981

 

EDUSEI, MENSA BOISON AND EDWARD WIREDU JJ.A.

Administrative law—Committee of inquiry—Findings of—Government White Paper—Appellant dismissed from public service by government directive purporting to act on the basis of report of commission of inquiry—Directive not supportable by findings and recommendation of commission of inquiry—Validity of government directive—Whether government bound by findings of commission of inquiry.

Administrative law—Committee of inquiry—Findings of—Government White Paper—No punitive recommendation made as regards appellant by commission—Government directive in White Paper dismissing appellant from office—Reasons in White Paper not supportable by findings of commission—Whether dismissal wrongful—Whether appellant entitled to be reinstated—Constitution, 1979, art. 155 (b).

HEADNOTES

The appellant was one of a number of prison officers who appeared before a commission of inquiry appointed by the government to investigate the escape of five prisoners from the Ussher Fort Prison on 12 November 1979. The commission in due course submitted a report to the government which in turn released a White Paper on the report. The commission itself made no recommendation as to the punishment of the appellant in its report but the government, purporting to act on the basis of the commission's report, directed in the White Paper that the services of the appellant be dispensed with. In the view of the government, it must have been an omission or an unintended oversight that the commission did not make any punitive recommendations as regards the appellant. On appeal,

Held, allowing the appeal:

(1) the commission in its report made a clear and categorical statement that it would refrain from making any punitive recommendation as regards the appellant because in its view the incident recorded against him was minor and also because he had made a favourable impression on it as a witness. There was neither an oversight nor unintended omission; the statement in the White Paper was therefore diametrically opposed to the clear, unambiguous and plain language of the commission's report. Even though the government was not bound by the findings and recommendations of the commission of inquiry, it was equally not permissible in law for the government to purport to act on a finding or recommendation when none existed. There was no basis in law for the statement in the White Paper and it would therefore be expunged. R. v. Medical Appeal Tribunal; Ex parte Gilmore [1957] 2 W.L.R. 498 per Romer L.J. at p. 506, C.A. cited.

(2) It would be discriminatory to refuse to restore a public officer to his former post if the recommendation of the commission of inquiry that led to his forced removal was set aside as being wrong in law. It was also precisely against such unjust dismissal or removal like that of the appellant [p.296] from office that article 155 (b) of the Constitution, 1979, provided that "No member of the public services shall be dismissed or removed from office or reduced in rank or otherwise punished without just cause." That provision would be meaningless if a public officer could not be restored to his former post where the court found that his removal was unjust and capricious. The court would therefore order reinstatement of the appellant to his former post.

CASE REFERRED TO

R. v. Medical Appeal Tribunal; Ex parte Gilmore [1957] 2 W.L.R. 498; [1957] 1 Q.B. 547; [1957] 1 All E.R. 796; 101 S.J. 248, C.A.

NATURE OF PROCEEDINGS

APPEAL against the removal of the appellant from the Prisons Service based on a directive in a Government White Paper issued on the report of a commission of inquiry into a jail-break incident at the Ussher Fort Prison, Accra.

COUNSEL

Dr. S. Twum for the appellant.

J. Boateng, Senior State Attorney, for the respondent.

JUDGMENT OF EDUSEI J.A.

Edusei J.A. delivered the judgment of the court. The government appointed a commission of inquiry to investigate the escape of five prisoners from the Ussher Fort Prison on 12 November 1979. A number of prison officers including the appellant appeared before the commission. A report was, in due course, submitted to the government. The government also released a White Paper on the commission's report and insofar as the appellant, who was Deputy Director of Prisons, was concerned, the government made the following statement:

"As regards Mr. S. B. Quayson, the commission found that he showed lack of concern and duty consciousness with respect to instructions to draft a letter to the Superintendent of Ussher Fort Prison to disperse the five escaped prisoners. However, the commission made no recommendation concerning him as to punishment which must have been an oversight or unintended omission. The government therefore directs that Mr. Quayson's services should be dispensed with. In line not only with action ordered against others involved in the whole sordid episode of the jail-break but also with the principles on house-cleaning and accountability as emphasised by the A.F.R.C. of which he was an enforcing officer."

It is quite clear from the White Paper that the government dispensed with the services of the appellant purporting to act on the findings [p.297] made against him by the Jail-break Commission. It becomes necessary therefore to consider whether there was evidence to support the commission's findings on which the government supposedly relied.

The facts leading to the appellant's involvement in the jail-break affair may briefly be stated as follows: The appellant had instructions from the Director of Prisons to draft a letter to disperse the five prisoners in Ussher Fort Prison. He did draft the letter and gave it to the director's own secretary who typed the letter for the director's signature. This in a nutshell was what was expected of the appellant; he carried out his assignment to draft the letter to be typed, and it was signed by his immediate superior - the Director of Prisons.

There is no evidence that he delayed in drafting the letter, and the director himself who gave instructions for the draft letter was aware of the restlessness of the five prisoners at Ussher Fort Prison, and they had even requested him to see them. In these circumstances, it was, in our view, the responsibility of the director to see to it that the letter went to the superintendent at the Ussher Fort Prison since there is no evidence that the appellant was expected to send the letter to the Ussher Fort Prison.

In view of the evidence on record, we are unable to appreciate the basis for the commission's finding that "having regard to the restricted nature of the communication, Mr. Quayson showed lack of concern and appreciation which is regrettable." Surely the typing was not to be done by the appellant and he was not to sign the letter either. It seems strange to us that the appellant could be castigated in the manner the commission did. The finding cannot therefore, by any stretch of legal ingenuity, be supported by any acceptable evidence on record. We hold therefore that it cannot stand and we accordingly set it aside.

As regards the issue of permits to relations of prisoners to visit them in prison, the evidence clearly established that it was within the competence of the appellant, and we are at a loss to appreciate the need for the commission in tacking on this fact to the drafting episode, to say what is contained in paragraph 130 of the commission's report, which states:

"This fact coupled with the nonchalant attitude Mr. Quayson displayed with regard to the letter for re-distribution of prisoners makes himself a suspect alongside Alhassan (see paragraphs 108-109) and Oppong for the leakage of the dispersal instructions."

 

Upon what evidence did the commission brand Mr. Quayson a [p.298] suspect? We see none. We wish at this juncture to re-echo the classic words of Lord Denning in his book, The Due Process of Law, at p. 71, where he said:

"I must always remember the cardinal principle of justice—that no man is to be condemned on suspicion. There must be evidence which proves his guilt before he is pronounced to be so. I will therefore take the facts in his favour rather than do an injustice which is without remedy . . . While the public interest demands that the facts should be ascertained as completely as possible, there is a yet higher public interest to be considered, namely, the interest of justice to the individual which overrides all other. At any rate, speaking as a Judge I put justice first."

Be that as it may, the commission hastened to add in the same paragraph 130 of the report that "Mr. Oppong's categorical denunciation of Mr. Quayson as the purveyor of the information is not supported by any evidence." Mr. Oppong was the Director of the Prisons Service at the time. It is interesting also to note that in paragraph 347 of the report the commission stated:

"Although a picture of Mr. Quayson also hangs in the undistinguished gallery, we make no recommendation concerning him as to punishment. This is because we consider the incident recorded against him, as of a minor character. We also refrain from a punitive recommendation in the expectation that he will take what we have said of him elsewhere in our report to heart, having regard to the favourable impression he made on us as a witness."

It is in the light of this and other matters that, in our view, the commission decided to make no recommendation concerning the appellant as to punishment. In fact, the commission said that the appellant made a favourable impression on them as a witness. If therefore the commission made the clear and categorical statement that they would refrain from making any punitive recommendation as regards the appellant, whence came the statement in the White Paper that "the commission made no recommendation concerning him as to punishment which must have been an oversight or unintended omission." There was indeed neither an oversight nor unintended omission on the part of the commission. The commission was rather positive in its recommendation that it would not recommend any punishment in respect of the appellant. In this respect the statement in the White Paper was diametrically opposed to the clear, unambiguous and plain language of the commission's report. While we concede that the government was not bound by the findings [p.299] and recommendations of the commission of inquiry it is equally not permissible in law for the government to purport to act on a finding or recommendation where none exists. We would say that the statement in the White Paper purporting to assign reasons to justify the removal of the appellant from the Prisons Service was a patent misrepresentation of the clear and lucid language in the report. This misrepresentation has occasioned an injustice to the appellant which no fair-minded judicial inquiry would want to perpetuate. Such conduct on the part of any responsible authority will no doubt leave a sour taste in the mouths of other public officers. In the interest of justice and fair-play and also on the ground that there was no basis in law for the statement in the White Paper we hereby expunge that portion of the statement in the White Paper. If it is not done "injustice may well result, and a sense of injustice is a grievous thing" per Romer L.J. in R. v. Medical Appeal Tribunal; Ex parte Gilmore [1957] 2 W.L.R. 498 at p. 506, C.A. We find no justification for the removal of the appellant from the Prisons Service.

What flows then from the setting aside of the findings made against the appellant as well as the misrepresented statement in the White Paper? We observe that it seems to be the accepted practice in the Public Services (including the Prisons Service) that on the acquittal of a public officer on a criminal charge by a court of law, he is restored to his former post. It will be discriminatory to refuse to restore a prison officer to his former post if the recommendation of a commission of inquiry that led to his forced removal is set aside as being wrong in law. More importantly, it should be observed that it is precisely against such unjust dismissal or removal like that of the appellant from office that the Constitution, 1979, has expressly provided in article 155 (b) that:

"155. No member of the public services shall be — . . .

(b)  dismissed or removed from office or reduced in rank or otherwise punished without just cause."

This provision in the Constitution would be meaningless if a public officer could not be restored to his former post where a court finds that his removal was capricious and unjust. We will therefore in the circumstances of this case order reinstatement of the appellant to his former office as first Deputy Director of the Ghana Prisons Service. Of course, if he desires to retire voluntarily, assuming that he has not reached the compulsory retiring age, he is free to do so. But this choice rests with him and him alone.

[p.300]

In conclusion we wish to say that in coming to this decision we have been emboldened by the memorable words of Mr. Abraham Lincoln, some time President of the United States, when he proclaimed that "let us have faith that right makes might; and in that faith let us to the end, dare to do our duty as we understand it." We hope that we have in accordance with our judicial oath carried out our duty in this case and we have also drawn great inspiration from the eminent Roman jurist, Justinian, when he said that "justice is the constant desire and effort to render to every man his due."

In the result the appeal succeeds in terms already stated in this judgment.

DECISION

Appeal allowed.

Reinstatement of appellant ordered.

J. K. E. E.