REPUBLIC vs. ASSISTANT SUPERINTENDENT OF POLICE, JASIKAN; EX PARTE DZANYIEKPOR [1974]DLHC2315

Date	1974-10-14
Suit No.
Citation No.	[1974]DLHC2315

ANDOH J.

DR. O. ASAMOAH FOR THE APPLICANT.

E. AKWEI-ADDO STATE ATTORNEY FOR THE RESPONDENT.

[1974]DLHC2315
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">REPUBLIC <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">ASSISTANT SUPERINTENDENT OF POLICE, JASIKAN; EX PARTE
DZANYIEKPOR <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[1974] 2 GLR 303<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 14 OCTOBER 1974.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

<a name="_gjdgxs"></a>DR. O. ASAMOAH FOR THE APPLICANT.<o:p></o:p>

E.
AKWEI-ADDO, STATE ATTORNEY, FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 1.0pt 0in">

ANDOH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANDOH J.A.<o:p></o:p>Suspect
in custody escaped from the hands of the applicant herein resulting in a
service inquiry being held on him. The officer charged with the inquiry, found
the applicant guilty of the offence of misconduct as defined by section 17 of
the Police Service Act, 1970 (Act 350), and he was thus convicted.<o:p></o:p><o:p>&nbsp;</o:p>The
officer’s recommendation as to sentence was that the applicant be severely
reprimanded. These were the recommendations sent to the Regional Disciplinary
Board, Ho, by the official but upon the recommendation of the Regional
Disciplinary Board, Ho, the Central Disciplinary Board, Accra, which had no
authority whatsoever to impose a major penalty purported to impose that penalty
by reducing the applicant from the rank of a sergeant to that of a corporal in
the Ghana Police Service. Upon application by the applicant for an order of
certiorari to issue and quash the said order of the Central Disciplinary Board,
Accra, the court readily ordered that the order be brought before it for the
purposes of being quashed as the Central Disciplinary Board, Accra, had no
power to impose a major penalty, the only authority competent to impose a major
penalty being the Inspector-General of Police: see section 19 (5) of the Police
Service Act, 1970 (Act 350). In fact the learned state attorney, Mr. Addo, who
appeared for the Central Disciplinary Board, Accra, and the Regional
Disciplinary Board, Ho, unreservedly conceded that point. Costs of ¢50.00 were
awarded against the Ghana Police Service. It is significant to observe at this
stage that it was only the order of the Central Disciplinary Board, Accra,
which was ordered to be brought for purposes of being quashed as it was ultra
vires. The recommendation or finding of the officer in relation to the conviction
of the applicant stood good and it still of full force and effect. About seven
months later, the applicant herein was again summoned before another officer
charged with practically the same offence of misconduct falling under section
17 of Act 350. His plea of autrefois convict was rejected and the trial has
been ordered to proceed by the second inquiring officer. The jurisdiction to
hold this second inquiry is being challenged in these proceedings and an order
of prohibition is being sought to restrain the official from further conducting
this second inquiry on the ground of double jeopardy-autrefois convict. The
question which arises in these proceedings is whether the special plea of
autrefois convict will avail the applicant herein in a disciplinary inquiry
mounted by the police in respect of the same offence of misconduct. It must be
stated from the outset that there was no appeal from the conviction of the
inquiring officer by the applicant assuming an appeal lies elsewhere. There was
also no appeal against the order of this court quashing the order made by the
Central Disciplinary Board, Accra. In fact it is not denied that the reduction
of the applicant from the rank of sergeant to one of corporal constituted a
major penalty. It was also not denied that the Central Disciplinary Board,
Accra, had no authority to impose a major penalty. The charges before the two
officers are identical in substance and are based on the same facts and as
stated, the sole issue is whether the applicant’s special plea of autrefois
convict will avail him in this second police service inquiry? In the first
place, I think the test of autrefois convict is not whether the facts relied on
in the two trials are the same. It is whether the prisoner has been convicted
of an offence which is the same or practically the same offence as that with
which he is charged: see R. v. Kendrick and Smith (1931) 23 Cr.App.R. 1, C.C.A.
following R. v. Barron [1914] 2 K.B. 570, C.C.A. In the first trial there were
two charges against the applicant; these were offences of negligently
permitting a prisoner to:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1)
escape contrary to section 17 (i) of the Police Service Act, 1970 (Act 350);
(2) Doing an act without reasonable excuse which amounts to failure to perform
in a proper manner any duty imposed on you as such contrary to section 17 (k)
of the Police Service Act, 1970 (Act 350).”<o:p></o:p><o:p>&nbsp;</o:p>The
particulars of the offences were as follows:<o:p></o:p>“(1) For
that you on 3 November 1972 at Nkwantapim near Kadjebi Police Station, while
escorting an untried prisoner, one Karimu Kotokoli on inquiries did negligently
permit the said prisoner to escape from your custody. (2) For that both of you
on 3 November 1972 at Nkwantapim near Kadjebi Police Station, did an act
without reasonable excuse which amounts to a failure to perform in a proper
manner any duty imposed on you as such, to wit did lose by neglect one</main>