CHORO-PADOH KWANIMBI HAMZA v. THE INSPECTOR GENERAL OF POLICE and ANOTHER

AVRIL LOVELACE-JOHNSON, JSC

I have read the judgment of my brothers Suurbaareh JA.

I also hold the opinion that the appeal in question should be allowed for the following reasons.

I will first consider the second ground of appeal upon which the trial judge based her judgment. This states as follows:

“The learned trial judge erred in law when she held that the dismissal of the Plaintiff/Respondent by the Central Disciplinary Board was null and void as the procedural requirement was breached”. On this ground, counsel for the appellant submits in sum that in applying regulation 16(d) the learned trial judge failed to advert her mind to the precondition in that regulation and that it was this failure which led her to find that there had been a breach of procedure.

The precondition referred to being “If the board is satisfied that the punishment which it could provide would be inadequate or that it has insufficient disciplinary authority to deal with the case”. In other words, since the “Regional Disciplinary Board which tried the Plaintiff had sufficient authority to deal with the matter and the board was in a position to impose a punishment which was adequate to the offence committed.

Therefore the Regional Disciplinary Board did not have to report any facts to the Central Disciplinary Board for the latter to formulate charges against the Plaintiff/Respondent and nominate an officer to hear the case”. See pages 5 and 6 of the written submissions of counsel for the Appellant.

The question that begs to an answer then is why was a reference made to regulation 16(d) at all in Respondent’s dismissal letter found at page 52 of the Record of Appeal if the preconditions were not applicable to the Regional Disciplinary Board.

Before discussing the issue, I will like to make comments on two issues raised in the judgment of one of my brothers.

Counsel for the appellant did not make any allegation that the reference to that regulation was a typographical mistake and a wrong reference.

She did not also raise any issue about the process used by the respondent to air his grievance that is coming by a writ instead of an application for certiorari as a ploy for circumventing the provisions regarding the time within which to apply for judicial review under Order 55 of C I 47.

This court was not addressed on these issues as a result.

The position of the law is that it is not up to a court to put forward a case for a party different from what he has put forward.

Aga