|
JUDGMENT
OWUSU-ANSAH, JA:
The plaintiff/Appellant
was employed by the Defendant in June 1997 as a
Cameraman. He became Executive Cameraman and Chairman of
the Local Branch of the Public Service Workers’ Union (PSWU)
On the 3rd of February
2000, the Plaintiff was summarily dismissed from the
employment of the Defendant. His salary at that time was
¢485,881.00 per month or ¢5,830,572.00 per annum.
The Plaintiff was
aggrieved by the said dismissal. He therefore caused a
Writ of Summons to be issued against the Defendant for
the following reliefs:-
(a) “A declaration
that his dismissal by the Defendant is unlawful;
(b) Damages for
unlawful dismissal
(c) Costs.”
At the hearing of the
Summons for Directions the following issues were agreed
for trial.
(i) “Whether or not
the Defendant has the power to dismiss the Plaintiff for
failure to work after 5.00pm;
(ii) Whether or not
overtime is compulsory;
(iii) Whether or not
the Plaintiff was informed far in advance that the
production of “ASANKA DELIGHT” had been shifted.
(iv) When the said
information was given;
(v) How the
information was communicated to the Plaintiff.”
The Plaintiff’s
evidence was that on the 14th December 1999 he consulted
the Notice Board where assignments are published. On the
Board he had been assigned to a Programme “ASANKA
DELIGHT” – a programme on how to prepare local dishes.
The next day (15th
December 1999) he went to work to shoot the “ASANKA
DELIGHT” Programme.
According to the
Plaintiff he sat through from 8.00 am to 5.15 pm. No
production took place. He therefore went and told his
immediate boss that he was going to his house. He was
then told that the time for the programme had changed,
and therefore, he had to wait.
The Plaintiff said
further that he told his boss that staying after 5.00 pm
meant doing compulsory overtime. However, by the
Collective Agreement overtime was not compulsory, and
that, in any event he should have been given prior
notice. He said he could not do overtime and went home.
It is surprising that
the Plaintiff did not offer any tangible reason why he
did not want to comply with the employer’s request,
other than the fact that overtime was not compulsory,
thereby demonstrating a total lack of understanding and
co-operation between the two economic partners. Was this
because the Plaintiff was a Senior Union Official? The
Plaintiff continued: “I came the following morning to
work and I was asked to meet a panel. It was to find out
why I did not take part in the production. I told them
what I have told the Court. A report came out. In the
report they stated that my failure to do the Programme
was insubordination.”
It came out also that
the guest who was to appear on the programme was an
eminent Moslem (Maulvi Wahab Adam) who could not partake
of the meal until after 6.00pm by virtue of Ramadan
Fasting.
“I petitioned
Management to review the punishment. They did nothing.”
In cross-examination,
the Plaintiff was asked: “Are you aware that you could
be asked to work after normal hours in the interest of
the Company?” Answer: “Yes”
A representative of the
Defendant Company Mr. Daniel Kofi Adu who gave evidence
also said the Group Corporate Manager asked him to cause
an investigation into a case made against the plaintiff
based on information received from the technical
production that the Plaintiff had refused to honour an
assignment given to him.
The head of the
engineering Department gave him a query to explain his
refusal. He replied to the query and explained his
refusal.
The matter was referred
to the Group Corporate Manager. He referred the matter
to the Witness Daniel Kofi Adu, the Head of Personnel
and Administration to investigate the case.
Whereupon he set up a
Committee of three (3) persons as specified under the
Agreement, who carried out the investigation.
Based on the
Committee’s Report, recommendations were made to the
Chief Executive. The Plaintiff was summarily dismissed
by the Chief Executive. His petition for a review of the
punishment was turned down.
The judgment of the
High Court Accra, presided over by His Lordship Mr.
Justice Victor Ofoe was delivered on the 23rd April 2001
against the Plaintiff. It is against this judgment that
the Plaintiff has now appealed to this Court.
The
Plaintiff/Appellant’s main grounds of appeal are :—
(i) The High Court
erred by finding that the production of the “ASANKA
DELIGHT” Programme started at 4.00 pm with the Plaintiff
Appellant as part of the Production Team;
(ii) The High Court
erred by holding that the Plaintiff/Appellant was
informed of the need to stay on after normal working
hours for the purpose of completing the production of
“ASANKA DELIGHT”
(iii) The High Court
erred by not making a finding as to when the Plaintiff
was informed about the change in the time of the
production of “ASANKA DELIGHT”
(iv) The judgment is
not supported by the evidence.
(v) The High Court
erred by holding that the Plaintiff can be charged under
Article 19 (of Exhibit “B”);
(vi) The high Court
erred by not considering and not applying Article 20 of
Exhibit “B”;
(vii) The High Court
erred by not making a finding as to whether or not the
Plaintiff/Appellant was charged;
(viii) The High Court
erred in misdirecting itself in the application of
Article 24 of exhibit “B”;
Particulars
Failure by the trial
Court to make a finding as to whether or not there was
an agreement between the Plaintiff and the Defendant
Company in connection with the said overtime;
(ix) The High Court
erred by not considering the address filed on behalf of
the Plaintiff;
(x) The High Court
erred by dismissing the Plaintiff’s claim against the
Defendant.
In his written
submission Counsel for the Plaintiff/Appellant indicated
his proclivity to tackle together Ground “(v) the High
Court erred by not considering and not applying article
20 of Exit “B” and Ground (vii) “The High Court erred by
not making a finding as to whether or not the
Plaintiff/Appellant was “charged”.
It was submitted on
behalf of the Plaintiff/Appellant that the requirements
of Exhibit “B” the Collective Bargaining Agreement
between the Defendant company and the employees of the
Defendant Company including the Plaintiff; were not
complied with.
In other words the
procedure for disciplinary action against an employee as
laid down in Exhibit “B” was not followed. Counsel
refers to Article 20 of Exhibit “B”, Section 1 and
argues, therefore, that the dismissal of the Plaintiff
should have been started with a charge or charge(s)
being preferred against him. A charge sheet should have
been drawn up and the Plaintiff made to give a written
reply to the preferred charges.
It is quite clear from
the evidence that the only steps taken by the Defendant
in connection with this matter are:
1. The Plaintiff was
queried as a result of the conduct exhibited on that day
when the company was in dire need of his services;
2. The Plaintiff did
reply to the query. The query and the response thereto
could have formed the basis of the charge against the
Plaintiff but they are not in evidence. I can find no
document or writing relating to either the query or the
reply thereto;
3. The matter was
referred to the Group Corporate Manager. It is not clear
what were the terms of reference or whether any specific
written charges were served on the Plaintiff to answer
and what happened thereafter.
4. The Group Corporate
Manager put together a committee of three persons; i.e.
the Domestic Inquiry Panel to investigate the matter.
Again were any charges preferred against the Plaintiff;
if so what were they?
5. Plaintiff’s
summary dismissal based on the recommendations of the
Committee.
It seems to me that
there is prima facie evidence of gross insubordination
or gross dereliction of duty or willful disobedience to
lawful order as stipulated in Article 19 “Discipline”(c)
(xii)
This becomes very
evident in the light of the provisions of Article 24
Overtime. Article 24 (c) states:
“An employee may be
called upon to work outside normal working hours in the
interest of the company”.
In my view this
provision must have been intended to envisage or
contemplate or anticipate the eventualities, the facts
and the circumstances of this case. But the hours so
worked must be paid for at the prevailing overtime rate.
Hence the provisions in Section 50 of the Labour
regulation L.I 632 which provides that if a worker in
any undertaking, public or private, works after the
hours fixed by the Rules of that undertaking, the
additional hours done shall be deemed to be over time
work.”
This last preceeding
section must be clearly distinguished from the next
provision in Article 24(d) which provides:
“(d) Overtime shall not
be compulsory but will be worked when necessary by
agreement between management and the employee…”
The Plaintiff appears
to have placed excessive reliance on this provision
which in my view is inapplicable to the facts and the
circumstances of this case.
The evidence by DW1 is
quite significant: He said “We were told at 2.30 pm that
there was a shift of the recording. The recording
started at 4.00 pm. The Plaintiff was part of the
crew. At 5.00 pm Plaintiff said he won’t do overtime
and left. This evidence was not seriously or directly
challenged. That kind of conduct would be covered by
Article 24 (c) and not 24 (d). It could have the effect
of jeopardizing the entire project. That attitude to
work leaves a lot to be desired. A charge could
accordingly have been brought against him under Article
20. But it was not. In my view the procedure adopted was
erroneous, however, that is not the end of the matter.
No matter how blatant
the conduct of an employee may be, the correct
DISCIPLINARY PROCEDURE must be followed in dealing with
the matter. Unless exceptionally the employee’s conduct
be so serious that in the circumstances instant
dismissal can be justified as the only realistic option.
In this case the
procedure can be found under Article 20 (a) of Exhibit
“B”
20 (a) PROCEDURE
“(i) Whenever a
disciplinary authority considers that a disciplinary
action should be instituted against an employee, the
Management shall draw up a charge(s) which the accused
employee. Shall be called upon to answer in writing
within three days of receiving it. Failure to reply by
the date specified will constitute the assumption that
the accused does not wish to make any statement and the
disciplinary authority may then proceed to impose any
punishment as it may deem appropriate.
(ii) If a reply is
received, the immediate superior shall either
investigate himself or delegate this responsibility to
an officer of a higher rank than the accused employee
and the officer shall submit a report for the
consideration of the disciplinary authority.
(iii) If the
disciplinary authority is satisfied that the charge(s)
have been proved, he shall advise the employee concerned
in writing of the penalty to be imposed.
Reference may be made
to the case of The Republic vs. Central Disciplinary
Board, Ex parte Tsawodzi 1973 2 GLR 299 wherein s.19 (3)
and (5) of the Police Service Act 1970 (Act 350) (and
also Police Service (Disciplinary Proceedings)
regulations, 1971 (L.I. 688 ref. 6 (1) (a) provided that
“ a written charge shall be preferred in all
disciplinary proceedings, and a copy thereof be served
upon the Defendant. It was held that since a written
charge was not preferred against the applicant, his
dismissal did not comply with statutory requirement and
was there ultra vires, illegal and null and void, and a
breach of natural justice”
Furthermore the
Defendant appears to have lost sight of Article 20 (b)
which deals with interdiction.
It states:
If an employee is
suspected of being guilty of any offence which would
justify summary dismissal management may interdict from
duty the employee on half pay pending further
investigations into the matter. If he is found not
guilty of the offence, the employee shall be reinstated
in his employment and shall be paid full salary for the
period of the interdiction. It was pointed out that as
the Defendant had had a disciplinary problem with the
company before this incident resulting in his suspension
from duty for 14 days.
It must be added that a
“charge” and an Inquiry are not exactly the same.
Obviously a “charge” is an accusation whereas a Query is
derived from the Latin word “quare re” which means to
inquire or to question or to ask.
“Interdiction” in this
context is discretionary. And the Plaintiff does not
appear to have suffered any loss by virtue of the
Defendant’s failure to interdict the Plaintiff during
the period of the Inquiry.
The Plaintiff/Appellant
went on to deal with the remaining grounds of appeal
(i) That the High Court
erred by finding that the production of the “ASANKA
DELIGHT” programme started at 4.00 pm with the
Plaintiff/Appellant as part of the Production Team.”
I find myself
regretfully unable to see any convincing argument in
support of this ground of appeal
The learned judge made
a finding: “I will accept Mr. Clottey’s evidence that
the Plaintiff was with the team but left at 5.00 pm
because he was not ready to work overtime”
The evidence of Mr.
Benjamin Clottey, DW1 is clear on this point. He said:
“………….if we are not able to finish the production we
make sure we finish before we close”
“We were told at 2.30pm
that there was a shift of the recording. The recording
started at 4.00pm. The Plaintiff was part of the crew.
At 4.00 pm the Plaintiff said he won’t do overtime and
he left. I am the head of the Production Team.”
In cross-examination
the witness was asked: You said in Exhibit “C” that the
fasting of the guest could not have made you meet the
programme?”
Answer: “Yes, we
started at 4.00 pm so that by 6.00 pm the guest could
taste the food”.
This is a clear case of
a finding of fact supported by the evidence on record –
largely unchallenged.’
The well-established
Rule is that an appellate Court is not entitled to
interfere with the findings of fact made by a trial
judge unless those findings are not supported by the
evidence on record, or that the judge did not take all
the circumstances into account or that he misapprehended
the evidence or drew inferences where there was no
evidence in support thereof.
There is a plethora of
authorities in support of these principles. See for
example:
Dankwa vs. Denteh
(1972) 2 GLR 305 CA. In re Yendi Skin Affairs Yakubu II
vrs. Abudulai (No. 2) 1984-86 2 GLR 239 S/C. Log and
Lumber Limited vs. Oppong 1977 2 GLR 263 CA. Praka vrs.
Ketewa 1964 GLR 423 SC
Kyiafi vs. Wono 1967
GLR 463 CA
In the instant case, it
has not been demonstrated to me that there was any error
in the factual findings made by the learned trial judge.
For the above reasons I
find no merit in this ground of appeal and the same is
dismissed.
Other Grounds of appeal
are as follows:—
(ii) The High Court
erred by holding that the Plaintiff/Appellant was
informed of the need to stay on after normal working
hours for the purpose of completing production of Asanka
Delight”
There is hardly any
distinction in substance between this ground of appeal
and the next which is
(iii) The High Court
erred by not making a finding as to when the
Plaintiff/Appellant was informed about the change in the
time of the production of ASANKA DELIGHT and
(iv) The High Court
erred by misdirecting itself in the application of
Article 24 Exhibit “B”
Again the
Plaintiff/Appellant makes very strong and elaborate
submissions in support of these grounds.
However, in the
ultimate analysis, the judge has to decide which version
of the evidence is acceptable on the balance of
probabilities. The stark fact here is that the evidence
of DW1 was clearly preferred.
In this connection DW1
again stated in his evidence in chief
“The Plaintiff is also
a Cameraman at TV3. He is my junior. Plaintiff was part
of the programme of Asanka Delight. The Producer of the
Programme told us the recording will start in the
afternoon 2.30. By “us”, it includes the Plaintiff.”
On the face of it it
looks as the Plaintiff decided to abandon the work he
had started with his colleagues, on the ground that it
was not compulsory for him to do overtime;” relying on
Article 24. Is this not a case of abandoning ship mid
stream!
In my view, it is wrong
to starve the hen that lays the golden egg or even to
slap a man when you have your fingers in his mouth!
As already indicated
elsewhere in this judgment the effect of Article 24 (c)
is significantly different from that of 24 (d). The
former can only mean that even though overtime is not
compulsory an employee may quite legitimately be called
upon to work outside normal working hours in the
interest of the company especially in cases of
emergency. The latter provision (d) obviously deals with
a more formal request normally” by agreement between the
Management and the employee concerned.”
For these reasons the
four other grounds must also fail and are hereby
dismissed, notwithstanding learned Counsel’s ingenuous
arguments in support thereof.
I also hold that there
has been no breach of the principles of natural justice.
In the Plaintiff’s evidence in chief he said: “I came
the following day to work and I was asked to meet a
panel. It was to find out why I did not take part in the
programme.”
Exhibit “C” is also
further evidence that the Plaintiff was given ample
opportunity to answer the allegation against him, albeit
not in the form prescribed under Article 20 of the
Collective Agreement.
My own conclusion
therefore is that the only ground that must succeed is
ground one on the basis of the Defendant Company’s
strict non-compliance with the provisions relating to
DISCIPLINARY PROCEDURE as enshrined in Article 20 of the
Collective Agreement between the Defendant company and
the employees.
The appeal is
accordingly allowed on this ground and judgment is
entered in favour of the Plaintiff.
The Plaintiff’s claim
as endorsed on the Writ of Summons is for:
(i) Declaration that
the dismissal of the Plaintiff was unlawful.
(ii) Damages for
unlawful dismissal
(iii) Cost.
In view of the
Defendant’s non-compliance with laid down procedures it
is hereby declared that the dismissal was unlawful. The
Defendant Company had some prima facie evidence upon
which the Plaintiff could have been properly dealt with
yet it never availed itself of the opportunity to do so.
As far as the issue of
damages is concerned the only evidence led by the
Plaintiff was that he was on salary of ¢485,881.00 per
month when he was terminated i.e. ¢5,830,572.00 p.a.
At the tail end of his
evidence in chief the Plaintiff stated: “Since my
dismissal I have tried searching for a job to no avail.
I went to Metro TV also to no avail. I do casual jobs”
There is no evidence of
special loss or damage suffered by the Plaintiff; nor is
there any evidence as to how much the Plaintiff has been
earning, if anything, by doing the so called “casual
jobs” and for how long.
In the case of Morgan &
others vs. Parkinson Howard Ltd. 1968 1 GLR 68, the
Court presided over by Ollennu J, as he then was held:
(1) In a claim for
wrongful dismissal the Plaintiff must prove the terms of
his employment and then prove that his dismissal is a
breach of the said terms, or that it contravenes some
statutory provisions for the time being regulating his
employment.
(2) Conduct
inconsistent with the Plaintiff’s due and faithful
discharge of his duties to his employers is a complete
justification for his dismissal without notice.
(3) The quantum of
damages for wrongful dismissal is the amount which the
Plaintiff should have been paid in lieu of notice of
termination of his employment.
In the last paragraph
of the Appellant’s written submission, he said: “I also
respectfully pray that the Defendant is made to pay the
Plaintiff all salaries and all entitlement due him from
time of his dismissal on the 3rd February, 2002, to the
date the case is finally determined as damages. This
accords with the Spirit of Article 20 (b) of Exhibit “B”
which provides that:
“where an interdicted
employee is found not guilty of the offence he shall be
reinstated and paid his full salary for the period of
his interdiction.”
It is noteworthy that
in this case the Plaintiff was not interdicted. At
least there is no evidence to that effect. The
Plaintiff apparently continued to receive his full pay
until his dismissal.
There is also no
evidence on record to show that the Plaintiff was in
receipt of other emoluments or entitlements which he
lost. Nor is there any claim for special damages.
In Dixon vs. GCA Mines
1911 Renners 615, Miners engaged in South Africa were
brought to the Gold Coast Colony by the Defendants who
wrongfully dismissed them.
The Court, following
Addis vs. Gramophone Co. 1909 A.C. 888 disallowed the
claim for special damages in the circumstances.
And in Bisset vs.
Prestea Block A 1913, a Miner having refused to obey a
reasonable order, it was held that he was rightly
dismissed and was thus not entitled to damages.
Under
cross-examination, the Plaintiff admitted that he had a
disciplinary problem before with the company, in respect
of which the investigating Panel found him guilty. As
his punishment the Plaintiff was suspended from work for
14 days because it constituted a major offence under the
Collective Agreement Article 19(c). As chief justice
Coke of England once pointed out:
Be you ever so high the
law is above you!
In the instant case the
dismissal or at least termination of the Plaintiff would
have been justified had the proper procedure been
followed.
In my view, having
regard to the facts of the case and all the
circumstances the Plaintiff would not be entitled to
substantial general damages.
I would award the
Plaintiff the sum of ¢1,457,643.00 as compensation for
his wrongful dismissal. This representing three months
salary at ¢485,881.00 per month. There is no other
evidence before the Court on which the assessment or
measure of damages may be based.
The appeal is therefore
allowed in part only.
P.K. OWUSU-ANSAH,
JUSTICE OF APPEAL
ADINYIRA, JA:
I agree that the appeal
be allowed on the sole ground that the disciplining
procedure under Article 20 of the Collective Agreement
between the parties was not followed.
S.O. ADINYIRA (MRS.)
JUSTICE OF APPEAL
ADDO, JA :
I also agree.
E.A. ADDO
JUSTICE OF APPEAL
COUNSEL
KWAME DADZOE FOR
APPELLANT
ABLA MASOPERH FOR
RESPONDENT
Jrah Bede Akorige (born
on 22/10/82. Aged 19 years)
7. Atiah Albor (born
on 01/10/80. Aged 20 years)
8. Atuguba Harold
Tivah (born on 19/06/80. Aged 21 years)
9. Awundre Jerome
Anongseam (born on 03/11/82. Aged 18 years)
10. Aye-Anine
Guggisberg (born on 15/08/80. Aged 21 years)
11. Ayibellow Isaac
Bakite (born on 20/09/82. Aged 18 years)
12. Ayidiga Eric (born
on 28/09/78. Aged 22 years)
The reliefs sought were
as follows:
(a) Declarations
(i) A declaration that
the decision of the Final Awards Committee of the
Respondents (The West African Examination Council)
communicated in a letter No. EC/SSS/RS/Vol. IV/173 dated
the 30th April 2001, to the Headmaster/ Rector of Notre
Dame Seminary/Secondary School, Navrongo, cancelling the
entire results of the applicant together with those of
the twelve (12) students, named (supra) of Notre Dame
Secondary School, in the SSSCE for the year 2000 is
unlawful, null, void and of no effect.
(ii) A further
declaration that the barring of the applicant together
with the twelve (12) other students by the Respondents
for three (3) years from taking any examination
conducted by the Respondents is unlawful, null, void and
of no effect.
(iii) The refusal or
neglect of the Respondents to release the entire results
of the applicant together with that of the twelve (12)
other students in the SSSCE 2000 is unlawful, null, void
and of no effect.
(b) Such directions or
orders as this Honourable Court may consider necessary
and appropriate to remedy the infringement or violation
of the fundamental human rights and freedoms of the
applicant and the twelve (12) other students.
The Applicant came to
Court by way of Originating Motion on Notice Supported
by Affidavit. The substance of the application was that
the applicant and the 12 others were registered for, and
sat, the Senior Secondary School Certificate
Examinations for the year 2000 which were organized and
conducted by the Respondents.
The applicant insisted
that they never had any foreknowledge of any of the
question papers set, either before or during the
examination, and also that they never acted in collusion
with any one in the said examinations.
Another point raised by
the applicant is that none of the affected students was
ever questioned, cautioned, reprimanded, or interrogated
by any agents of the Respondents either before, during
or after writing the said examinations in respect of any
of them having had foreknowledge of the examination
question, or as having acted in collusion with any
person(s), in writing the said examination. A gross
violation of the principles of natural justice was also
alleged.
In brief the case for
the Respondents/Appellants is that the
Respondents/Appellants as an international Examining
Body set up by convention and law to conduct examination
in the English Speaking West African sub-Region has
evolved Rules and Regulations to ensure the sanctity of
the examinations, and also to ensure fairness to
candidates. The enforcement of the said Regulations is
to stem out examination malpractice in the public
interest.
The applicants relied
heavily on Exhibit C which states as follows:
“During the conduct of
the 2000 SSSCE there were allegations of foreknowledge
of some of the question papers. The only means by which
the Appellant Council could verify the allegations was
the scrutinizing of the scripts of the candidates. As a
result all scripts of all subjects were scrutinized.
From the scrutiny it was established that there was
foreknowledge and collusion among the 13 candidates (out
of 76) from Notre Dome Secondary School-Navrongo in
Mathematics (core) paper 2. The Council therefore,
applied the prescribed sanctions”.
The learned trial judge
carefully scrutinized the evidence and made some
important and relevant findings of fact which formed the
basis of his decision relying on a number of statutory
provisions particularly Articles 19, 23, 24 and 33(1) of
the 1992 constitution of the Republic of Ghana as well
as some statutory and case law including PNDCL 225, and
the leading cases of L’ Air Liquide (Ghana) Ltd vs.
Anning and others 1991 1 GLR 460 at 463, on the issue of
natural justice; C.B. Kelly’s dictum in Wood v Wood 1
Stra 557 on the principle of audi alteram partem, was
cited. Reference was also made to Ridge vs Baldwin 1964
AC 40 at 132 on the features of natural justice. Also
cited was R v. University of Cambridge 1723 1 st 537
wherein a judicial dictum is recorded that “Even God
himself did not pass sanction on Adam before he was
called upon to make his defence. “Adam” says God, “
where art thou” Has thou not eaten of the tree whereof I
commanded that thou shalt not eat?” And the same
question was put to Eve also.
The learned trial judge
found in favour of the applicant and made some
consequential orders, namely,
1. “The Respondents are
hereby ordered to publish the results of the applicants
in all the papers they wrote in the 2000 SSSCE and
communicate same to the Headmaster of the applicant's
school forthwith.
2. “The ban imposed on
the applicants from writing any examinations for the
council for the next three (3) years is hereby lifted”.
It is against this
decision of the Fast Track High Court that the applicant
has appealed to this Court. The grounds of appeal
include:
1. His Lordship failed
to note that the Rules and Regulations that govern the
examinations constitute a contract between the
candidates and the Respondents/Applicant and that
candidates accept these conditions before writing the
examination.
2. In summarizing, His
Lordship omitted to note that the Respondent/Appellant
herein had pleaded in paragraph 11 of the Affidavit in
Opposition and had also argued that the practice of
Examining Bodies evolving their Rules is universal. If
His Lordship had applied the principle he would have
held that the decision to cancel the result was fair”.
3. In summarizing the
Respondent/Appellant’s defence, His Lordship omitted to
note that the Respondent had pleaded public interest
under Article 12 of the 1992 Republican Constitution of
Ghana.
4. Other grounds of
Appeal will be filed upon receipt of copy of the record
of proceedings.
However, the
Respondent/Appellant’s Counsel appeared to have
abandoned all the above grounds of appeal, and rather
sought to argue the additional ground which states: “The
learned Judge erred in not setting aside the originating
Motion on Notice as not warranted by any rule of law or
procedure”. I shall therefore confine myself to this
ground of appeal only, if it is enough to dispose of the
matter.
Counsel for the
appellant pointed out that the original Motion was filed
on the 10th August 2001 without a return date, but on
the 19th September 2001, the applicants filed another
application when arguments had closed for those
declarations, but on the 1st October 2001 when the
applicants would move the court for “mandatory
Injunction compelling the registration of the applicant
and 12 other Respondents of Notre Dame Secondary School,
Navrongo, in respect of the Senior Secondary School
Certificate Examinations, upon grounds which were set
out in the accompanying Affidavit.”
The appellants
contended therefore that the entire proceeding was
faulted in procedure. In the result, says the
Appellants, the jurisdiction of the Court was never
properly invoked.
The appellant contended
further that since by the provisions of Order 2 R1 of
the High Court (Civil Procedure) Rules 1954 LN 140A”.
Every action shall be commenced by a Writ, “ the
proceeding in this case by originating Motion on Notice
for the declaration sought must be struck out unless
the applicants can point to a rule that specifically
permits such procedure.”
On behalf of the
Respondents it was submitted that the appellant’s
contention was erroneous in law and misconceived and
that the procedure adopted was proper and unimpeachable.
It was an application, submits Counsel, for the
enforcement of constitutionally guaranteed fundamental
human rights under Article 33(1) of the 1992
Constitution.
“33(1) provides that:
“Where a person alleges that a provision of this
constitution on fundamental human rights and freedoms
has been, is being, or is likely to be contravened in
relation to him then, without prejudice to any action
that is lawfully available, that person may apply to the
High Court for redress”.
That provision, in my
opinion, postulates that, in this case the fundamental
human right under the constitution of the 1992 has been
contravened in relation to the aggrieved party; this
must be a condition precedent to the invocation of Art
33(1).
What constitutes
“Fundamental Human Rights and Freedoms” has been clearly
and unequivocally spelt out in Articles 12-33 Chapter
Five (Pages 12-34) of the Constitution of the Republic
of Ghana, 1992. It includes such rights as Protection of
Right to life, Protection of Right to Personal Liberty,
Respect for Human Dignity, Protection from slavery and
forced labour; Equality and Freedom from Discrimination;
Protection of Privacy of Home and other property; fair
trial of criminal offences; Protection from deprivation
of property; Property rights of spouses; Economic
Rights; Children’s Rights; Right of the Disabled and the
sick etc.
It is not very clear
which “fundamental human right” under the constitution
has been breached or contravened so as to justify the
invocation of Article 33(1) quoted verbatim above-by
means of an Originating Motion on Notice or Originating
summons.
Order 54A for instance
provides: that “Any person claiming to be interested
under a deed, a will or other written instrument may
apply by Originating Summons for the determination of
any question of construction arising under the
instrument and for a declaration of the rights of the
persons interest”.
Rule 2 of Order 54A
also states:
“Any person claiming
legal or equitable right in a case where the
determination of the question whether he is entitled to
the right depends upon a question of construction of a
statute, may apply by originating summons for the
determination of such question of construction and for a
declaration as to the right claimed”.
In my view the
procedure adopted in this case, that is Originating
Motion on Notice, is inappropriate and flawed, since, as
has already been pointed out, the Respondents were
seeking a number of Declarations, including but not
limited to a declaration that: -
- the cancellation
of the Results was unlawful;
- the barring of
the applicants was void and of no effect.
- the council’s
refusal to release the results was unlawful.
Indeed there is
abundant evidence on record that the Court below was
mindful of, and actually adverted its mind to, this
irregularity and pointed it out, but allowed itself to
be swayed from that straight course into a path of
tortuosity strewn with debris.
It is my considered
view that the jurisdiction of the High Court could and
should have been more appropriately invoked.
In L’Air Liquide v.
Anning 1991 1 GLR page 460 at 463, it was clearly
decided that when people are given power by law to
consider facts and to arrive at conclusions that affect
the fate of human beings they are performing a
quasi-judicial function.
At page 5 of the
Respondent’s written submission, he catalogues a list of
statutory provisions allegedly contravened by the
appellant Council, in many cases without any indication
as to how. However, these alleged rights can only be
asserted by means of the proper procedures in order to
invoke the jurisdiction of the Court.
Thus at a very early
stage of the hearing the learned judge had this to say:
“ I am not very sure whether having regard to the
reliefs you have prayed for an originating Summons is
the best way to reach the reliefs … You have only an
Affidavit and I would not mind if you would possibly
take a day or two to reconsider that aspect because as
soon as the gate is shut on you that is your end. We
shall not re-open. You will not get another chance to
re-open to put in material which you would otherwise
have wanted to put in.” Elsewhere the learned judge went
on “…if instead of coming by originating summons you
come by a writ and then you say that the Defendant has
breached your rights, then evidence will be led. The
advantage there is that those who actually handled the
scripts can “ come and testify and you have the chance
of cross-examining them”.
Nevertheless, Counsel
for the Applicant/Respondent insisted: “we have
considered the possibility of going by writ as was
suggested (by the judge) but we have realized that by
the time we go through the processes of a writ and
evidence the ban on the applicants might have been
served in which case the judgment would not be of any
practical significance”.
Yet another Counsel for
the Applicants argued that “ we have painfully come to
the conclusion that we would move the motion as it
stands, in spite of all the limitations the procedure we
are adopting places on us. My Lord that is the
conclusion we have come to”.
The Rules of Court are
meant to be obeyed to guide litigants and cannot be
sacrificed on the altar of convenience. In my view,
unless the jurisdiction of the court is properly invoked
in accordance with the relevant Rules any argument,
however meritorious, cannot be entertained.
And further it has been
held that whether a trial judge is justified to dispose
of the matter summarily is a question of law, not of
fact see Kwaggane v. Adjei 1992 1 GLR 189 CA.
Again it is a well
established rule of law that where facts are not capable
of being determined on affidavit (Garcia v. Torrejoh
1992 1 GLR 143 refers,) then and in that event it will
be necessary to take evidence.
The Court cannot
condone the perpetuation of such a glaring error as
occurred in this case.
Although the evidence
predominantly favoured the Respondent, the issue of
jurisdiction has to be settled first.
The jurisdiction of the
Court is the power to hear and determine the subject
matter in controversy between the parties to the suit,
the power or authority to adjudicate.
Where it is lacking as
in the case of Kumipah v. Ayirebi 1987 1 GLR 625, any
judgment or order emanating from the Court or judge is a
nullity and the person adversely affected by it is
entitled to ignore it. Jurisdiction can be properly
invoked under order 2 rule 1 of the High Court (Civil
Procedure) Rules (LN 140A) a subordinate legislation,
which provides that “ Every action in the High Court
shall be commenced by a Writ of Summons” subject of
course to a few exception, such as a Petition in a
divorce case under order 55 Rule 3(1), or in an
appropriate case, a Summons, an Originating motion or
Originating Summons.
I find myself
regretfully unable to gloss over this fundamental
procedural error or irregularity; not even order 70 can
save it as it is obviously incurably bad. The rules are
the only means by which substantive rights can be
enforced or defended. There can be no room for short
cuts to litigation.
The Respondent appears
to have placed a high premium on the provision of
Article 33(1) of the constitution and submits:
“Our application was
not an ordinary application before the High Court. It
was an application for the enforcement of “ a
constitutionally guaranteed fundamental human rights
under Article 33(1) of the 1992 constitution” and
proceeds to quote the article.
It will be presumptuous
of this court, indeed wrong, to attempt to interprete
any provision of the constitution, or in any other way
try to encroach upon, or usurp, powers that properly
belong to the Supreme Court.
Be that as it may, it
is perfectly obvious that the Respondent refers to this
article in an effort to buttress his submission on the
question of the relevant procedure. That presupposes
some kind of interference with the Respondent’s
constitutionally guaranteed fundamental human rights so
as to give rise to the procedure under Art 33. What that
is, I must confess I cannot fathom.
In Heward-Mills v.
Heward-Mills 1992-93 GLR 239 at 246 the Court made an
interesting observation vis a vis the issue of
jurisdiction. The court said:
“Where a statutory
condition must be complied with before a Court can have
jurisdiction to make an order, failure to comply with
such a condition will leave the Court with no discretion
to make any order or orders in the matter “.
It is true that no
rules had been made by the Rules of Court Committee in
pursuance of Article 28 (4) of the constitution. That,
however, is immaterial until it has been clearly and
amply demonstrated that a constitutionally guaranteed
fundamental human right has been breached or contravened
giving rise to the invocation of Article 33(1). In such
an eventuality, no one can legitimately quarrel with
such an application being made by an originating Motion
on Notice. Thus in my respectful view the decision in
Peoples Popular Party v. Attorney General 1971 1 GLR 138
cited with approval in subsequent cases is hardly
applicable to the instant case.
Similarly the principle
enunciated by the Privy Council in Juandoo v. A-G of
Guyana 1971 3 WLR 13 at 114 is inapplicable to this case
for obvious reasons.
A careful perusal of
the available affidavit evidence, the facts of the case,
and all the surrounding circumstances would seem to
confirm the need to take some evidence to resolve the
crucial, pertinent issues of fact in order to do
substantial justice.
For example, it was
being alleged by the WAEC, the appellants herein, that
the candidates concerned had foreknowledge of the
Mathematics (core2) examination paper. This was
emphatically denied by the Respondents.
Collusion was another
allegation which was vehemently denied. The issue could
only be resolved by taking evidence and testing the
veracity through cross-examination.
There were further
allegations of breaches of Article 19 of the
Constitution of 1992. That Article, covering some four
pages, deals almost exclusively with criminal
proceedings. Needless to say the Respondent in this case
was neither charged with nor convicted of any criminal
offence(s).
The Respondents also
alleged a breach of Article 23 of the Constitution which
deals with Administrative justice. It states:
“Administrative bodies and administrative officers 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.”
It seems to me that the
Council were exercising an administrative function
rather than a judicial function when it came to a
conclusion and decided to impose the penalties
complained of. Under S3 (3) of PNDCL 255 “ the penalties
contained in this section shall be in addition to any
other penalties that may be imposed by a court or a
Tribunal”. That is if the Appellant, in its wisdom, had
decided to prosecute the Respondents. It goes without
saying that whether the Council had “ acted fairly and
reasonably and complied with the law” under Article 23
of the Constitution must be issues of fact to be
established by evidence. Hence the Procedure adopted by
the Respondents is inapplicable in asserting a right
under Article 23. West African Examination Council law,
PNDCL 255 is, by virtue of the provisions of the 1992
Constitution, part of the laws of Ghana.
Section 10 of that law
provides:
“10 where in any
investigation or trial a candidate is found to have had
access to an examination paper or to have had
foreknowledge of the contents of an examination paper or
cheated in any way during an examination, a Report shall
be made to the Council which shall take such action,
including the cancellation of examination results and
any certificate issued in respect thereof to the
candidate.”
This Section 10 does
not necessarily imply or even envisage a Court action or
proceedings. The Council had been invested with power
to investigate and take action. No legal enquiry was
contemplated.
It is common knowledge
that the Council in the fullness of its wisdom and in
order to preserve its integrity and reputation cancelled
the entire results.
I hold that the action
taken by the Council was neither ultra vines nor
arbitrary but in accordance with the provisions of PNDCL
255.
In any event, as
already indicated the procedure adopted by the
applicants/Respondents in invoking the jurisdiction of
the Court cannot be sanctioned by this Court, thereby
perpetuating the undesirable practice.
In paragraph 4 of the
Appellant’s Affidavit in Opposition, the Appellant’s
Counsel insisted that “the Council is an Examining Body
established by Law, Convention and PNDC Law 255 to
conduct examination in the English Speaking West Africa
and further that in the exercise of the powers conferred
on it, the council has evolved Rules and Regulations to
ensure the sanctity of examinations and also to ensure
fairness to all candidates.
This responsibility
enjoins the Appellant/Council to stem out examination
malpractices for the public good (or probono).
The Appellant had made
allegations of foreknowledge and collusion (Paragraph
8), the procedure adopted by the applicant did not give
room for evidence which is very vital in this case.
In the result, I hold
that, in all the circumstances, the appeal ought to
succeed, and is accordingly allowed.
The consequential
orders of the Court below are hereby set aside.
In relation to the
penalty of three years ban imposed on the Respondent, by
the Appellant/Council, I think one has to balance the
interest of the public as against the interests of the
young Respondents and their future.
In my view the ban
imposed on the applicants from writing any examinations
for the Council for the next 3 years is rather harsh in
all the circumstances.
I would substitute the
minimum period of 2 years as provided by Act 255.
There shall be no order
as to costs.
P.K. OWUSU-ANSAH
JUSTICE OF APPEAL
ESSILFIE-BONDZIE:
I agree.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
ARYEETEY, JA:
I also agree.
B.T. ARYEETEY
JUSTICE OF APPEAL
COUNSEL:
VDM |
