|
Labour - Employment - Collective
Bargaining - Agreement
Interdiction – Disciplinary
committee - Admissions were
obtained under duress -
Termination of appointment -
Wrongful dismissal – Damages –
Defamation - Failure to
comply with the stated
requirements in Rule - Whether
or not the judgment is against
the weight of evidence - Whether
or not the dismissal of the
Appellants’ was unfair and
contrary to the Labour Act, 2003
(Act 651) - Rule 6(2) of the
Supreme Court Rules, 1996 (C.I.
16) - section 13 of Evidence Act
1975 NRCD 323 - Article 23 of
the Constitution, 1992
HEADNOTES
The appellants in their
statement of claim pleaded that
they were employees of the
respondent and sometime in
September 2009, they were
interrogated by officers of the
respondent and later interdicted
for fraud, deliberate
falsification of records, theft
of gold bearing material and/or
unauthorized removal of
gold-bearing material; behaving
negligently resulting in
significant loss or damage to
company equipment or property,
lying to a supervisor and misuse
of level of authority. They
further pleaded that they were
served with invitation to appear
before a
disciplinary committee
hearing on the said offences
which are contained in their
collective agreement. They
averred that each of them denied
the charges laid against them at
the disciplinary committee
hearing. Prior to their
appearance before the
disciplinary committee, the
Investigator in the case caused
each appellant to write a
statement and some of the
appellants admitted their
offences under duress.
According to the appellants,
after the disciplinary hearing,
each of them was served with a
letter of termination and
summary dismissal. They contend
that their dismissal was wrong
in law and that they are
entitled to substantial damages.
On the other hand, the
respondent stated in her
statement of defence that the
appellants were dismissed after
they were charged with the
offence of stealing gold bearing
materials from her process plant
and after investigations and
hearings, the veracity of the
charge was established. The
respondent contended that the
appellants participated in the
hearing at the disciplinary
committee and were given all
opportunities to defend
themselves against the charges
preferred, After the trial, the
High Court on the 18th
December, 2015 gave judgment in
favour of the appellants and
ordered full payment of their
salaries at “the present
level” from the date of
their interdiction to the date
of final payment. The trial
court also ordered one year full
salary at current levels as
damages for defamation and loss
of the right to earn a living
and also payment of all
allowances The trial court also
awarded Fifteen Thousand Ghana
Cedis (GH¢15,000.00) as costs
against the respondent. In an
appeal launched by the
respondent to the Court of
Appeal, Kumasi, the High Court
judgment was on the 24th
October, 2017 reversed and the
various awards of damages by the
trial High Court were set aside
in favour of the respondent.
Aggrieved by the judgment of the
Court of Appeal, the appellants
have filed the instant appeal
before this Court
HELD
In the instant appeal, the trial
judge was wrong in awarding
damages for defamation. It is
our respectful view that the
learned judge failed in his
judgment by awarding damages for
defamation. It was the duty of
the appellants to mitigate their
damages instead of relying on
unpleaded and unproven matters.
Furthermore, another issue which
arose from the record of appeal
is the gravamen of their
complaint that the findings of
the Disciplinary committee did
not reasonably establish
misconduct against the
appellants. The appellants’
dismissal hinged on the theft of
gold bearing materials and
conspiracy to steal. Indeed,
the appellants’ dismissal was
based on a report of the
findings of a Disciplinary
Committee constituted by the
respondent to investigate the
alleged offences for which the
appellants were dismissed.
We agree with the finding of the
learned Justices of the Court of
Appeal and adopt same “The only
question for consideration where
the decision in issue is
concerned is whether the
evidence presented to the
committee that conducted the
investigation of the company,
are reasonably capable of
supporting the decision of the
company to dismiss the
Respondents (appellants
herein), and not whether two
of the charges against the
Respondents were proved to the
standard required in Criminal
law”. The ground of appeal fails
and it is hereby dismissed as
the Court of Appeal ably
reevaluated the evidence on
record. On the whole, the Appeal
is dismissed as without merit
and the judgment of the Court of
Appeal is hereby affirmed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution,
Labour Act, 2003 (Act 651)
Supreme Court Rules, 1996 (C.I.
16)
Evidence Act 1975 NRCD 323
High Court Civil Procedure Rules
1997 (C.I. 47)
CASES REFERRED TO IN JUDGMENT
Dahabieh v S. A. Turqui & Bros.
[2001-2002] SCGLR 498
Osei (Substituted by) Gillard v
Korang [2013-2014] 1 SCGLR 221
Sarpong v Google Ghana & Another
[2017-2018] 2 SCGLR 839
Tuakwa v Bosom [2001-2002] SCGLR
61
Djin v Musah Baako [2007-2008] 1
SCGLR 686
Akufo-Addo v Catheline [1992] 1
GLR 377
Kobi v Manganese Co. Ltd.
[2007-2008] SCGLR 771
Morgan v Parknson Howard Ltd.
[1961] GLR 68
Oduro v Graphic Communications
Group Ltd. [2017-2018] 2 SCGLR
112
Unilever Ghana Ltd. v Kama
Health Services Ltd. [2013-2014]
2 SCGLR 861
Fosua & Adu-Poku v Dufie (Decd)
& Adu Poku Mensah [2009] SCGLR
310
Kofi Sekyire v Abosso Goldfields
Ltd. (Unreported), Civil Appeal
No. J4/20/2015,
Kobea and Others v Tema Oil
Refinery & Ors. [2003-2004] 2
SCGLR 1033
Arkhurst v Ghana Museum and
Monuments Board [1971] 2 GLR 7
Asante v Scanship Ghana Ltd.
[2013-2014] 2 SCGLR 1296
Iddrisu v Amartey [2009] SCGLR
670
Opare Yeboah v Barclays Bank
Ltd. [2011] 1 SCGLR 330
Lever Brothers Ltd. v Annan;
Lever Brothers Ghana Ltd. v
Dankwa (Consolidated) [1989-99]
2 GLR 385
Owusu-Domena v Amoah [2015-2016]
1 SCGLR 790
Ackah v ADB [2016-2017] 1 GLR
552.
Dam v Addo [1962] 2 GLR 200
Esso Petroleum Co. Ltd. v
Southport Corporation [1956] AC
218
Ashun v Accra Brewery Ltd.
[2009] SCGLR 81
Bani v Mearsk Ghana Ltd. [2011]
2 SCGLR 796
Lagudah v Ghana Commercial Bank
[2005-2006] SCGLR 388
Aboagye v Ghana Commercial Bank
[2001-2002] SCGLR 797
BOOKS REFERRED TO IN JUDGMENT
Bullen & Leake & Jacobs,
Precedents and Pleading (13th
Ed.)
page 623
Gatley on Libel and Slander (5th
Edition)
Kofi Senkyire v Abosso
Goldfields Ltd., Civil Appeal
No. J4/20/2005 delivered on 26th
June 2006
DELIVERING THE LEADING JUDGMENT
HONYENUGA, JSC:-
COUNSEL
EMMANUEL BRIGHT OTOKOH FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
MATILDA IDUN-DONKOR FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
HONYENUGA, JSC:-
INTRODUCTION
This is an appeal from the
unanimous judgment of the Court
of Appeal, Kumasi dated the 24th
day of October, 2017 reversing
the decision of the High Court,
Sunyani, dated 18th
December, 2015. By their
amended Writs and Statement of
claim filed in the High Court,
on the 21st January
and 18th February
2011 respectively, the
Plaintiffs/Respondents/Appellants
who were nine former employees
of the
Defendants/Appellant/Respondent’s
mining company instituted three
suits against the
Defendant/Appellant/Respondent
claiming a declaration that
their
interdiction and subsequent
dismissals was wrong in law,
an order for their reinstating
and all monies due to them from
the period of interdiction and
summary dismissal paid to them
with interest or in the
alternative general damages for
wrongful
dismissal. The three suits
were consolidated and tied
together by the High Court which
gave judgment in favour of the
Plaintiffs/Respondents/Appellants.
In this appeal, the
Plaintiffs/Respondents/Appellants
would simply be referred to as
the Appellants and the
Defendant/Appellant/Respondent
referred to as the Respondent.
BACKGROUND
The brief facts of this appeal
are that the appellants were
employed by the respondent in
various capacities as
technician, welder, grinding
operator, control room operator
among others. Their employment
was governed by a
Collective Bargaining Agreement
(CBA) dated the 1st
day of August. 2007 between the
respondent and the Ghana
Mineworkers Union of TUC
tendered as Exhibit D. Sometime
in 2009, the respondent
terminated the appointments of
the appellants based on adverse
findings of a disciplinary
committee constituted by the
respondent which found the
appellants liable for the theft
of some gold bearing materials
and or conspiring with others in
that regard. Their interdiction
letters also contained
references to other kinds of
misconduct including
unauthorized removal of gold
bearing material. Prior to the
termination of their employment,
the appellants were given a
hearing before the disciplinary
committee to which written
statements were presented, some
of which contained denials and
admissions which implicated
others. While the appellants
contended that the
admissions were obtained under
duress, the respondent
maintained that they were
voluntarily obtained. The
appellants then instituted their
various suits claiming the
reliefs (supra).
THE APPELLANTS’ CASE
The appellants in their
statement of claim pleaded that
they were employees of the
respondent and sometime in
September 2009, they were
interrogated by officers of the
respondent and later interdicted
for fraud, deliberate
falsification of records, theft
of gold bearing material and/or
unauthorized removal of
gold-bearing material; behaving
negligently resulting in
significant loss or damage to
company equipment or property,
lying to a supervisor and misuse
of level of authority. They
further pleaded that they were
served with invitation to appear
before a disciplinary committee
hearing on the said offences
which are contained in their
collective agreement. They
averred that each of them denied
the charges laid against them at
the disciplinary committee
hearing. Prior to their
appearance before the
disciplinary committee, the
Investigator in the case caused
each appellant to write a
statement and some of the
appellants admitted their
offences under duress.
According to the appellants,
after the disciplinary hearing,
each of them was served with a
letter of termination and
summary dismissal. They contend
that their dismissal was wrong
in law and that they are
entitled to substantial damages.
THE RESPONDENT’S CASE
On the other hand, the
respondent stated in her
statement of defence that the
appellants were dismissed after
they were charged with the
offence of stealing gold bearing
materials from her process plant
and after investigations and
hearings, the veracity of the
charge was established. The
respondent contended that the
appellants participated in the
hearing at the disciplinary
committee and were given all
opportunities to defend
themselves against the charges
preferred.
The charges were established
against them and as a result
they were dismissed. The
respondent denied the appellants
averments and pleaded that they
are baseless. The respondent
stated that prior to their
interdiction, statements were
taken from the appellants in
which some of them admitted the
charges levelled against them
and that their dismissal was
justified
After the trial, the High Court
on the 18th December,
2015 gave judgment in favour of
the appellants and ordered full
payment of their salaries at
“the present level” from the
date of their interdiction to
the date of final payment. The
trial court also ordered one
year full salary at current
levels as damages for defamation
and loss of the right to earn a
living and also payment of all
allowances and other payments
and bills that they would have
earned were they in employment.
The trial court also awarded
Fifteen Thousand Ghana Cedis
(GH¢15,000.00) as costs against
the respondent.
In an appeal launched by the
respondent to the Court of
Appeal, Kumasi, the High Court
judgment was on the 24th
October, 2017 reversed and the
various awards of damages by the
trial High Court were set aside
in favour of the respondent.
Aggrieved by the judgment of the
Court of Appeal, the appellants
have filed the instant appeal
before this Court
seeking a reversal of that
judgment. The appellants
originally filed a sole ground
of appeal but upon leave of the
Court of Appeal, they filed
additional grounds of appeal
based on the following:-
(i)
That the
judgment is against the weight
of evidence.
(ii)
The learned Judges of the Court
of Appeal erred in the
evaluation of the evidence on
record in respect of the
wrongful termination of
Appellants’ appointment and
thereby occasioned grave
miscarriage of justice to the
appellants.
(iii)
The Court of Appeal erred when
in its evaluation of the
evidence on record it failed to
interrogate the basis of the
Appellants’ dismissal by the
respondents whether the same was
reasonably supported by the
evidence presented to the
committee that investigated the
alleged misconduct of the
appellants.
(iv)
The Court of Appeal gravely
erred when it held that the
findings of the Committee that
investigated the Appellants was
not perverse and that there had
been no miscarriage of justice
against Appellants.
(v)
The finding of the Court of
Appeal that the preponderance of
probabilities indicates that
Appellant had removed
gold-bearing materials is not
supported by the evidence on
record.
(vi)
The Court of Appeal erred in the
face of the ample evidence on
record when it held that the
trial judge had no mandate to
attempt to impeach the dismissal
of Appellants based on video
evidence which did not form part
of the evidence on record.
(vii)
The Court of Appeal erred when
it set aside the finding of the
trial High Court that
the
dismissal of the Appellants’ was
unfair and contrary to the
Labour Act, 2003 (Act 651).
(viii)
The learned Judges of the Court
of Appeal erred in law and in
fact when they held that the
trial judge erred when he
awarded the Appellants
damages
for defamation when the same
was not pleaded and evidence led
in proof of same.
(ix)
The Court of Appeal erred when
it set aside the awards made in
Appellants favour by the trial
court and upheld grounds B, C, D
and E of the respondents appeal
contrary to the evidence on
record.
DETERMINATION OF THE GROUNDS OF
APPEAL
Rule 6(2) of the Supreme Court
Rules, 1996 (C.I. 16)
as amended provides:-
“(2) A notice of civil
appeal shall set the grounds of
appeal and shall sate
(f) the particulars of a
misdirection or an error in law,
if so alleged”.
Before we consider the grounds
of appeal, we would deal with a
preliminary matter concerning
the grounds of appeal. Rule
6(5) provides that vague or
general grounds of appeal which
do not disclose any reasonable
ground of appeal except the
general ground that the judgment
is against the weight of
evidence shall not be
permitted. In the instant
appeal we have observed that
Counsel for the appellants
failed to
comply with the stated
requirements in Rule 6(f) in
the formulation of grounds (ii),
(iii), (iv), (vi), (vii), (viii)
and (ix) of the notice of
appeal. The rule required
Counsel for the appellants to
have clearly stated the
particulars of the errors of law
he alleged in said grounds of
appeal to avoid breach of the
said Rule.
Dahabieh v S. A. Turqui & Bros.
[2001-2002] SCGLR 498
Holding (1), held that
grounds of appeal alleging that
the judgment is wrong in law is
in effect saying that there is
an error of law in the
judgment.
Further, rule 6(2) requires the
appellant to specify in the
ground of appeal that particular
complaint amounting to an error
of law. Consequently, the
grounds of appeal are
inadmissible. In the
circumstances, grounds (ii),
(iii), (iv), (vi), (vii), (viii)
and (ix) are hereby struck out
as inadmissible.
Having struck out the offending
grounds, grounds (i) and (v)
would be subsumed and considered
under the omnibus ground of
appeal which is the judgment is
against the weight of evidence.
It is trite learning that an
appeal to this Court is by way
of rehearing and the appellate
Court has the duty to analyze
the entire record of appeal to
find out whether or not the
judgment under appeal was
justified as supported by the
evidence on record and that an
appellate Court is entitled to
make up its mind on the facts
and draw inferences as the trial
Court. In
Osei
(Substituted by) Gillard v
Korang [2013-2014] 1 SCGLR 221
at 226 to 227,
the Supreme Court per Ansah JSC
stated the law thus:-
“It is trite learning that an
appeal to this Court is by way
of rehearing and the appellate
Court has the duty to study the
entire record to find whether or
not the judgment under appeal
was justified as supported by
the evidence on record. An
appellate Court is entitled to
make its mind on the facts and
draw inferences to the same
extent as the Trial Court could
do”.
Further in
Sarpong v Google Ghana & Another
[2017-2018] 2 SCGLR 839;
at page 843, Adinyira JSC
citing with approval
Tuakwa
v Bosom [2001-2002] SCGLR 61
stated the principle as
follows:-
“Once the whole judgment is
called into issue, then we must
analyze the entire record and
take into account all the
pleadings, affidavits, documents
and submissions by both Counsel
in the record of proceedings
before this Court to find out
whether the conclusion by the
Court of Appeal can be
supported”.
A further elaboration on the
principle is that the onus is on
such appellant to clearly and
properly demonstrate to the
appellate Court, the lapses in
the judgment appealed against.
See
Djin v Musah Baako [2007-2008] 1
SCGLR 686, Holding
(1);
Akufo-Addo v Catheline [1992] 1
GLR 377 and other
authorities.
On this ground, learned Counsel
for the appellants in his
original ground of appeal
submitted that the Appellants
satisfied the burden of proof
required by law and succeeded in
establishing that their
dismissal was unfair and or
wrongful as the Respondent could
not with any positive evidence
establish their guilt. Learned
Counsel also contended that no
gold bearing material was ever
found on any of the appellants
nor was the quantum of gold
stolen established. Learned
Counsel further submitted that
the purported investigation into
the alleged misconduct were on
mere suspicion or conjecture and
therefore the conclusions drawn
by the disciplinary committee as
well as the dismissal of the
appellants were perverse and
wrongful.
Learned Counsel for the
respondent submitted that to
enable the appellants succeed,
each appellant was required to
prove that they had been
wrongfully dismissed by the
Respondent but on the evidence
on record, they failed.
Indeed, the issue in this case
is whether or not the
termination of the appellants’
appointment was wrongful and
illegal and whether or not the
appellants were entitled to
their claims. The law is that
this action being an action for
damages for wrongful dismissal,
each appellant assumed the
burden of proving the terms of
his employment that the
determination was in breach of
the terms of the agreement, or
in contravention of statutory
provisions for the time being
regulating the employment. In
Kobi v
Manganese Co. Ltd. [2007-2008]
SCGLR 771 at 786,
this court after citing with
approval
Morgan v Parknson Howard Ltd.
[1961] GLR 68 at 70,
held that the action being an
action for damages for wrongful
dismissal, each plaintiff
assumed the burden of proving
the terms of his employment;
that the determination was in
breach of the terms of agreement
and in contravention of
statutory provisions for the
time being regulating to
employment. See also
Oduro
v Graphic Communications Group
Ltd. [2017-2018] 2 SCGLR 112
Holding (2). This
Court further held that if a
plaintiff failed to satisfy the
Court on these points, his or
her claim cannot succeed. The
learned Justices of the Court of
Appeal in their judgment at page
1020 of the record of appeal,
reviewed the judgment of the
trial Court and the record of
appeal and came to the
conclusion that the decision of
the respondent herein to dismiss
the appellants from their
employment must not be
disturbed. Their Lordships and
Ladyships stated at the said
page (supra) thus:-
“We have also reviewed the full
record of exhibits and
testimonies before the
disciplinary committee and the
Courts, and do not find any
reason to disturb the decision
of the Appellant to dismiss the
respondents”.
A perusal of the record of
appeal indicate that the Court
of Appeal reviewed the evidence
and the statement of each
appellant before the
disciplinary committee from
pages 1020 to 1024 of the record
of appeal and made findings that
considering the contradictions
and discrepancies in the
testimony of each appellant, the
respondent’s witnesses were
cogent regarding the exercises
they undertook and their
testimonies coherently in line
with the findings of the
committee and the decision of
the respondent Company. The
learned Justices further made
findings at page 1024 of the
record of appeal thus:-
“It is for the above reason that
I find that it is the judgment,
which is not supported by the
record, and not the decision of
the Appellant Company”.
The learned Justices of the
Court of Appeal also agreed that
the statements and conclusions
of the trial judge were without
legal basis and unsupported by
the evidence presented by the
Court.
In this appeal, the High Court
Judge upon hearing the evidence
before him, gave judgment to the
appellants but on appeal to the
Court of Appeal, the learned
Justices upon a revaluation of
the entire record of appeal
before them, made their own
findings and came to the
conclusion that the appellants
failed to discharge the burden
of proof cast upon them.
It is trite that an appellate
Court would disturb the findings
and conclusions by a lower Court
if the evidence did not amply
support the evidence on record
or were perverse.
After a thorough perusal of the
record of appeal, we have no
reason to doubt the findings and
conclusions of the Court of
Appeal and we therefore adopt
their findings since these
findings and conclusions are
wholly supported by the evidence
on record.
This Court in
Unilever Ghana Ltd. v Kama
Health Services Ltd. [2013-2014]
2 SCGLR 861,
speaking through Benin JSC at
page 885 of the Report said as
follows:-
“Much as an appellate court
should refrain from disturbing
findings of fact made by a trial
court, it will not shirk its
responsibility of setting aside
these findings of fact which are
not borne out of the evidence on
record”.
See also
Fosua & Adu-Poku v Dufie
(Decd) & Adu Poku Mensah [2009]
SCGLR 310 at 313
and other respectable
decisions.
From the evaluation of the
evidence on record, the
appellants failed to prove that
the respondent breached the
agreement, the CBA or
contravened any statutory
provisions regulating the
employment. It is not in doubt
that the appellants contract of
employment in the collective
agreement Exhibit D on page 550
of Volume two of the record of
appeal contains the grounds for
summary dismissal. These
includes theft, behaving
negligently resulting in
significant loss or damage to
Company equipment or property,
and other grounds recommended by
the Disciplinary Committee.
(See Exhibit B). The grounds
for termination for misconduct
are set out in Appendix C of
Exhibit D and includes lying to
a Supervisor, Misuse of level of
authority, Negligence resulting
in Potential damage or loss to
Company equipment or property
and others. A perusal and
evaluation of the evidence in
the record of appeal reveals
that the disciplinary committee
was constituted in terms of
Exhibit D, the CBA and the rules
of natural justice was observed
and opportunity was provided to
the appellants to be heard.
Learned Counsel for the
appellants submitted that no
positive evidence established
the guilt of the appellants and
that no gold bearing material
was found on them. Counsel also
submitted that no quantum of any
gold-bearing material was stolen
and that the respondent could
not prove same. Learned Counsel
for the appellants also contend
that the respondent could not
prove the guilt of the appellant
beyond reasonable doubt pursuant
to
section 13 of NRCD 323.
Learned Counsel also submitted
that on the preponderance of the
probabilities, the respondent
did not prove that the
appellants removed gold-bearing
materials or put same into their
interdiction letters, Exhibits
A, G, L, Q, W, EE, KK, TT and
WW. A perusal of the record of
appeal indicate that the
submissions of Counsel for the
appellants is not supported by
the evidence on record. There
is abundant evidence on record
which established both civil and
criminal wrongdoing on the part
of the appellants and that it is
our candid opinion that the
respondent proved the requisite
standard of proof on which basis
the appellants were entitled to
be dismissed as in the case of
Alex Onumah Coleman to
terminate his employment. We
have found cogent and compelling
evidence on the record of the
stealing and unauthorized
removal of gold by four
appellants namely Ernest Korang
Yeboah, Isaac Kongetey, Isaac
Boadu and Ebenezer Mills who
admitted stealing and indicated
whom they did it with. In his
further statement on pages 649
to 672 of the record of appeal,
Volume 2, dated 21st
September, 2009, Ernest Yeboah
admitted the stealing and
mentioned others he did it with.
“On the night of 1st
September 2009, myself, Ebenezer
Mills, and Alex Coleman did
collect gold bearing materials
from under the acacia basement
and tried to see if we could get
gold nugget from the tail. I
state that it was Alex Coleman
who said others have been
getting gold nuggets from the
tails. I plead for leniency”.
A perusal of the record of
appeal reveals that apart from
those appellants stated supra,
other appellants on the totality
of the evidence specifically
including Exhibits 10 and 8,
David Awelgiyah statement on
page 661 of Volume 2 of the
record of appeal implicates
David Koomson. Exhibit 1 the
report of the disciplinary
committee established on the
preponderance of the
probabilities that they were
involved in the removal of gold
bearing material. It is trite
that where the trust worthiness
of the employee is in doubt as a
result of suspicion, the
employer will find it unsafe to
keep the employee in his
establishment. In
Kofi
Sekyire v Abosso Goldfields Ltd.
(Unreported), Civil Appeal No.
J4/20/2015, also in
[2008] 15 MLR 207, the
Supreme Court at page 6 of the
judgment said:
“In the gold mining industry, it
is common knowledge that the raw
materials are gold bearing rocks
from which the gold is
extracted. It stands to reason,
therefore, to conclude that
bearing rocks on the premises of
the Defendant/Company must be
valuable and precious
commodities which the company
would do its utter most to
protect. My handling of the
gold bearing rocks or
concentrate sample in any
unusual manner … is bound to
create suspicion. And where the
trustworthiness of the employee
is in doubt as a result of this
suspicion the employer would
find it unsafe to keep the
employer (sic) in his
establishment. The employer
would be justified to dispense
with the services of the
employee”.
Further in
Kobea
and Others v Tema Oil Refinery &
Ors. [2003-2004] 2 SCGLR 1033,
this Court further
acknowledge the
employee/employer relationship
as being contractual in nature
that:
“… at common law, an employer
may dismiss an employee for many
reasons such as misconduct,
substantial negligence,
dishonesty, etc. these acts may
be said to constitute such a
breach of duty by the employee
as to preclude satisfactory
continuance of the contract of
employment as repudiated by the
employee”
See also Awuku-Sao v Ghana
Supply Co. Ltd. [2009] SCGLR 710
Holding (3).
The conduct of the appellants
created a doubt in their
trustworthiness and the
respondent, their employer found
it unsafe to keep them in his
employment. See also
Arkhurst v Ghana Museum and
Monuments Board [1971] 2 GLR 7.
Learned Counsel for the
appellants also complained that
the Court of Appeal erred in the
face of the ample evidence on
record when it held that the
trial Judge had no mandate to
attempt to impeach the dismissal
of Appellants based on video
evidence which did not form part
of the evidence on record. We
think that this is misplaced or
that the criticism of the
judgment of the Court of Appeal
is unfair. It is crystal clear
that at page 1019 of the record
of appeal, the Court of Appeal
after citing
Asante
v Scanship Ghana Ltd.
[2013-2014] 2 SCGLR 1296
which gave power to an
appellate Court not to disturb
the findings made by the trial
High Court unless those findings
were not supported by the
evidence on record, the lower
appellate Court went on to hold
on the video evidence as
follows:-
“And we must hold that the trial
court in this case had no
mandate to attempt to impeach
the dismissals based on alleged
video evidence when this video
evidence did not form part of
the evidence on record.
Since the videos did not form
part of the record of the
proceedings, we have to say that
the judgment that the evidence
from the videos did not prove
the charges as against the
weight of the record.
In addition to the above
position, we have also reviewed
the full record of exhibits and
testimonies before the
disciplinary committee and the
courts, and do not find any
reason to disturb the decision
of the Appellant to dismiss the
Respondents”.
Indeed, it is on record that the
trial judge had the benefit of
watching the video evidence but
same was not tendered into
evidence to form part of the
record of proceedings. We would
rely on a decision of this Court
in
Iddrisu v Amartey [2009] SCGLR
670, Holding 4,
which stated the law clearly
thus:
“The High Court, just like all
other superior courts, was a
court of record. Consequently,
there must be a record of
everything that was done and
directed by the Court,
encompassing not only all
processes filed before the
court, but also a record of all
arguments, submissions, evidence
led by the parties and witnesses
and the decisions or orders and
judgments of the court.
Whenever the record of any such
process or event that was deemed
to have taken place in the court
was not available to be referred
to, then the record of such an
event could not be accepted as
having taken place”.
It is thus obvious that since
the video evidence was not
tendered into evidence, it could
never form part of the record of
proceedings to enable it be
considered as part of the
evidence on record. We
therefore agree with the finding
of the Court of Appeal that the
videos did not form part of the
record. The submission of
Counsel for the appellants is
not supported by the evidence on
record as same is found
untenable.
As rightly stated by the Court
of Appeal, even without the
video evidence, the respondent
was justified in dismissing the
appellants since there is
sufficient evidence on record.
Moreover, it is trite that once
an employer followed the
procedures as enshrined in the
contract of employment such as
the CBA and followed the
mandatory requirements as the
hearing under the CBA it gives a
summary dismissal a validity.
In
Opare Yeboah v Barclays Bank
Ltd. [2011] 1 SCGLR 330
at 332, this Court stated
as follows:-
“That the Supreme Court would
affirm the time honoured
proposition that the procedures
outlined in contracts of
employment such as the CBA in
the instant case must be
followed to give a summary
dismissal validity”.
See also
Lever Brothers Ltd. v Annan;
Lever Brothers Ghana Ltd. v
Dankwa (Consolidated) [1989-99]
2 GLR 385.
In the instant appeal, the
respondent duly interdicted the
appellants gave them a hearing
at the disciplinary committee
level and which also made their
recommendations as their
contract of employment, the CBA
required. A dismissal of the
appellants was done in
accordance with the CBA and
therefore we hold that the
dismissal of the appellants is
not perverse but valid.
We would now consider whether
the trial judge was right in
awarding damages for defamation
and whether the Court of Appeal
was also right in dismissing the
said damages. In his judgment
at page 507 of the record of
appeal (volume 1), the learned
trial judge made a finding of
fact and held as follows:-
“The Defendant thereby
humiliated the plaintiffs and
the Court takes the view that
same is defamatory act against
the plaintiffs for such the
Plaintiffs must be entitled to
damages as compensation”.
The learned trial judge then at
page 508 of the record of appeal
awarded damages for defamation
as follows:-
“3. I award one year full
salary at current levels as
damages for Defamation and for
losing the right to earn a
living”.
The Court of Appeal dismissed
the findings and conclusions of
the trial judge thus:-
“…. Statements and conclusions
of the trial judge were without
legal basis and unsupported by
the evidence presented to the
court or legal authority”.
We agree with the conclusions
reached by the Court of Appeal
since they are supported by the
evidence on record. Order 57
rules 2 and 3(1) of the High
Court (Civil Procedure) Rules,
2004 (C.I. 47) provides:-
“2. Before a writ is
issued in an action for libel it
shall be indorsed with a
statement giving sufficient
particulars of the publication
in respect of which the action
is brought to enable them to be
identified.
3(1) Where in an action for
libel or slander the plaintiff
alleges that the words or
matters complained of have been
used in a defamatory sense other
than their ordinary meaning, he
shall give particulars of the
facts and matters on which he
relies in support of the sense
alleged”.
It is trite learning that a writ
in a libel claim must contain
indorsements giving sufficient
particulars of the publication
in respect of which the action
is brought to enable them to be
identified – see Order 57 rule 2
of C.I. 47. Further, where
words or matters complained of
have been used in a defamatory
sense other than their ordinary
meaning, particulars of the
facts and matters on which a
plaintiff relies in support of
the case must be pleaded. See
Order 57 rule 3(1) of C.I. 47.
In the case of Slander, the
exact words allegedly used must
be set out verbatim in the
statement of claim and in direct
speech. See
Bullen
& Leake & Jacobs, Precedents and
Pleading (13th Ed.)
page 623 and Gatley on Libel and
Slander (5th Edition)
paragraph 809, at p. 446)
rightly cited by learned counsel
for the respondent. The case
law, in support is clearly
stated in
Owusu-Domena v Amoah
[2015-2016] 1 SCGLR 790
Holding (3) thus:-
“(3) In establishing that a
publication was defamatory, the
Plaintiff must plead and lead
evidence on the following
matters in order to succeed:
(i)
There was publication by the
defendant;
(ii)
The publication concerned him,
the plaintiff;
(iii)
The publication was capable of a
defamatory meaning in its nature
and ordinary sense;
(iv)
Alternatively or in addition to
(iii) above, that from the facts
and/or circumstances surrounding
the publication, it was
defamatory of him, the plaintiff
…”
See also,
Ackah v ADB [2016-2017] 1 GLR
552.
Defamation by the relevant rules
in C.I. 47 is a distinct head
under the law of tort. In the
instant appeal, the appellants
failed to indorse their writs
with a claim for damages for
defamation, did not plead facts
relevant to a defamation action
nor did they provide any
particulars of any defamatory
matter in their pleadings during
the trial. It is therefore
ridiculous that the trial High
Court awarded the appellant
damages for defamation and “for
losing the right to earn a
living”. Indeed, the Court of
Appeal speaking through
Torkornoo JA (as she then was)
rightly at pages 1013 to 1014 of
the record of appeal (volume 2)
succinctly stated as follows:-
“It is difficult to appreciate
how the trial judge arrived at
his finding on defamation and
orders for damages for
defamation. First, as is well
recognized as the rule in
Dam v
Addo [1962] 2 GLR 200,
and cited by Appellant Counsel,
it is a fundamental principle of
substantial justice that a court
cannot arrive at a decision on a
case that has not been presented
to it for trial. She (sic) also
cited
Esso Petroleum Co. Ltd. v
Southport Corporation [1956] AC
218 quoted with approval
by the Supreme Court in Dam v
Addo at pages 238 – 239 with
these words ‘To condemn a party
on a ground of which no fair
notice has been given may be as
a great denial of justice as to
condemn him on a ground on which
his evidence has been improperly
excluded ….
Procedurally and substantially,
the claims brought to court,
centered on ‘wrongful
dismissal’. The Respondents did
not confront the Appellant with
any case on defamation. The
Appellant did not have an
opportunity to defend itself
against any claims of
defamation. Thus the court did
not have the mandate to arrive
at a decision on whether the
Appellants were liable for
defamation or not”.
A perusal of the writ, the
pleadings and the evidence on
record did not disclose that the
appellants endorsed their writs,
with any damages for defamation,
nor pleaded same in their
pleadings and provided any
particulars. The appellants
only led evidence to indicate
that because of the publication
by the respondent to other
mining companies not to employ
them and because they were found
culpable of theft, they should
not be employed. The respondent
denied this in its evidence but
the appellants on whom the onus
shifted could not provide any
corroborative evidence in
support of their statements.
The appellants therefore failed
to prove their claim.
We therefore adopt the findings
and conclusion of the Court of
Appeal as stated supra. The
trial Judge’s findings and
conclusions are outrageous and
unknown to law.
In any case, the law is patently
clear that in an employer and
employee relationship where the
employment of the employee is
proved to be wrongfully
terminated, the employee is
entitled to restitution in
integrum on account of the fact
that the employee has a duty to
mitigate his/her losses or
damages. In
Ashun
v Accra Brewery Ltd. [2009]
SCGLR 81, the
Supreme Court per Dr. Date-Bah,
JSC stated the law as follows:-
“…. The duty to mitigation of
damages for wrongful dismissal
devolves on an employee.
Accordingly, he or she has a
duty to take steps to find
alternative employment. In
principle then, in the absence
of any statutory or contractual
provision, the measure of
damages for wrongful termination
of employment under the common
law of Ghana is compensation
based on the employee current
salary and other conditions of
service, for a reasonable period
within which the aggrieved party
is expected to find alternative
employment. Put in other words
the measure of damages is the
quantum of what the aggrieved
party would have earned from his
employment during such
reasonable period determinable
by the court after which he or
she should have find alternative
employment. This quantum is, of
course, subject to the duty of
mitigation of damages”.
In the instant appeal, the trial
judge was wrong in awarding
damages for defamation. It is
our respectful view that the
learned judge failed in his
judgment by awarding damages for
defamation. It was the duty of
the appellants to mitigate their
damages instead of relying on
unpleaded and unproven matters.
Furthermore, another issue which
arose from the record of appeal
is the gravamen of their
complaint that the findings of
the Disciplinary committee did
not reasonably establish
misconduct against the
appellants. The appellants’
dismissal hinged on the theft of
gold bearing materials and
conspiracy to steal. Indeed,
the appellants’ dismissal was
based on a report of the
findings of a Disciplinary
Committee constituted by the
respondent to investigate the
alleged offences for which the
appellants were dismissed.
A perusal of Exhibit D, the
Collective Bargaining Agreement
(CBA) between the Respondent and
the Ghana Mine Workers’ Union of
TUC at its page 61 listed the
grounds for summary dismissal to
include:
“(1) Theft,
fraud and deliberate
falsification of records ….”
Further at page 62 of the
Collective Bargaining Agreement
(CBA) stated the grounds for
termination to include:-
“(5) Lying
to a Supervisor
(6) Misuse of
level of authority
(7) Negligence resulting
in potential damage or loss to
Company equipment or property”.
It is thus clear that the
appellants’ charges before the
disciplinary committee were
based on the CBA under which
they were employed. These
provision cover both termination
of employment as well as summary
dismissal. It is trite law that
when the disciplinary procedure
is resorted to like the instant
case, the employer must, when
challenged, establish that good
grounds existed for his action.
What were the findings of the
Disciplinary Committee for which
the appellants were dismissed?
We must state that the
appellants were summoned to the
Disciplinary Committee where
they were given a fair hearing.
At the end of its deliberation
the disciplinary committee made
findings at pages 643 to 644 of
the Record of Appeal. While the
Disciplinary Committee
recommended that the appellants
be summarily dismissed, the
committee on a split decision
recommended that Mr. Onumah
Coleman be referred to the
functional Manager for review,
it is noted that the functional
Manager later dismissed Mr.
Onumah one of the appellants in
this consolidated appeal. Was
the disciplinary committee
required to prove the
Appellants’ misconduct beyond
reasonable doubt? Learned
counsel for the appellants
argued that the disciplinary
proceedings was an internal
matter but the Respondent was
enjoined to prove the
Appellant’s guilt beyond
reasonable doubt with regard to
sections 13, 14 and 15(1) of the
Evidence Act, 1975 (Act 323)
which provides:-
Section 13 –
Proof of Crime
(1)
In any civil or criminal action
the burden of persuasion as to
the commission by a party of a
crime which is directly in issue
requires proof beyond a
reasonable doubt.
(2)
Except as provided in section
15(3), in a criminal action the
burden of persuasion, when it is
on the accused as to any fact
the converse of which is
essential to guilt, requires
only that the accused raise a
reasonable doubt as to guilt.
14. Allocation of Burden of
Persuasion Except as otherwise
provided by law, unless and
until it is shifted a party has
the burden of persuasion as to
each fact the existence or
non-existence of which is
essential to the claim or
defence he is asserting.
Section 15 – Burden of
Persuasion in Particular cases
(1)
Unless and until it is shifted,
the party claiming that a person
is guilty of crime or wrongdoing
has the burden of persuasion on
that issue.
It is to be noted that under
section 15 of Act 323, the
burden on the prosecution never
shifts to the accused. The
accused has a different burden
of persuasion which requires him
to establish his defence by
reasonable doubt. Learned
Counsel has contended that the
stealing and conspiracy to steal
being criminal offences, the
Respondent was required to prove
beyond reasonable doubt or that
guilt must be the irresistible
conclusion from its
proceedings. The question of
the burden of proof applicable
to an employer’s internal
disciplinary committee conducts
hearing into allegations of
misconduct against an employee
was determined by this Court as
rightly cited by learned Counsel
for the Respondent in
Kofi
Senkyire v Abosso Goldfields
Ltd., Civil Appeal No.
J4/20/2005 delivered on 26th
June 2006. The
facts of this case are similar
to the instant case. It held
that the committee of inquiry
set up by the
defendant/appellant mining
company to inquire into the
plaintiff/respondent’s conduct
of being found with gold bearing
rocks at a place at which he
should not have been cannot be
proved beyond reasonable doubt.
At page 4 of the judgment,
Ahinakwa JSC succinctly stated
the law as follows:-
“The three man committee set to
go into the matter and to give
the plaintiff a fair chance to
explain himself. They did not
sit in panel as a criminal court
whose decision was to be beyond
reasonable doubt, or to get a
conviction”.
We therefore adopt the
submission of learned Counsel
for the respondent that the
provisions of the Evidence Act,
1975 (NRCD 323) namely sections
13, 14 and 15 of NRCD 323 cited
by the Counsel for the
appellants are inapplicable to
the hearings before the
Respondent’s internal
disciplinary committee.
It is our candid opinion that
the Court of Appeal was right
when it held that the
disciplinary committee was not
required to prove the charges
against the appellants beyond
reasonable doubt and that the
High Court was totally wrong.
Indeed, the proceedings before
the disciplinary committee is
not tantamount to a court of
competent jurisdiction.
Learned Counsel for the
appellants has submitted that
from the evidence, the conduct
of the disciplinary committee
was not only in breach of the
terms of the agreement but that
it also fell short of
Article
23 of the Constitution, 1992
provides:-
“Administrative bodies and
administrative officials shall
act fairly and reasonably and
comply with the requirements
imposed on them by law and
persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal”.
Indeed, the disciplinary
committee of a private limited
liability company such as the
respondent is neither an
administrative body, nor its
members, administrative
officials within the context of
Article 23 of the Constitution,
1992. We agree with learned
Counsel for the respondent that
the relationship between the
appellants and the respondent
was purely a contractual one
governed by their employment
contracts. This Court has held
in numerous cases that private
enterprise units are not subject
to public law remedies to which
administrative bodies and
officials are subject. In
Bani v
Mearsk Ghana Ltd. [2011] 2 SCGLR
796, Date-Bah JSC
in his lead opinion at page 814
of the report stated per curiam
as follows:-
“It is a paramount principle of
public law that public or
administrative bodies are
supervised by way of judicial
review to ensure that they keep
within the bounds of their
jurisdiction or area of
allocated authority. This is an
important incident of
constitutionalism. A similar
policy rational does not exist
for the courts supervising
delegated decision-making in the
private sector. Indeed, it
would be against public policy
to subject private sector
business units to the same
judicial control over the
administrative decisions as
public bodies. The public
sector needs more flexibility
and is not expected to operate
under the same rules of the
game, so to speak, as government
and public bodies”
In
Lagudah v Ghana Commercial Bank
[2005-2006] SCGLR 388
at 401-402, this Court
emphasized the principle of
public law doctrine of audi
alteram partem as follows:-
“I am not persuaded that, in a
commercial setting, in the
absence of a contractual
provision to the contrary, an
employer is bound to comply with
the rules of natural justice
before dismissing an employee
for misconduct. At common law,
it is enough if the facts
objectively establish cause for
dismissal”.
See also
Aboagye v Ghana Commercial
Bank [2001-2002] SCGLR 797
at 828-831.
We would therefore dismiss the
submission of Counsel for the
appellants that the learned
justices of the Court of Appeal
failed to comply with Article 23
of the Constitution, 1992 as
same is untenable. We must also
state that a disciplinary
committee is not an Adjudicatory
body or Tribunal. It is only a
disciplinary committee set up to
investigate the charges levelled
against the appellants, arrive
at a conclusion and make
recommendations to the
appropriate authority for
sanctions to be imposed. As
stated supra, Article 8.2 of the
CBA (Exhibit I) supports this
position. It is therefore
untenable for the learned trial
judge and Counsel for the
appellants to state that the
charges against the appellants
ought to be proved beyond
reasonable doubts as required in
criminal trials.
We agree with the finding of the
learned Justices of the Court of
Appeal and adopt same at page
1013 of the record of appeal
that:-
“The only question for
consideration where the decision
in issue is concerned is whether
the evidence presented to the
committee that conducted the
investigation of the company,
are reasonably capable of
supporting the decision of the
company to dismiss the
Respondents (appellants
herein), and not whether two
of the charges against the
Respondents were proved to the
standard required in Criminal
law”.
The ground of appeal fails and
it is hereby dismissed as the
Court of Appeal ably reevaluated
the evidence on record.
CONCLUSION
On the whole, the Appeal is
dismissed as without merit and
the judgment of the Court of
Appeal is hereby affirmed.
C. J HONYENUGA
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
I. O.
TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
EMMANUEL BRIGHT OTOKOH FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
MATILDA IDUN-DONKOR FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
|
