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Labour – Employment – Contract
of employment
- Conditions of service - Breach
of rules of the bank’s credit
policy - Summarily dismissing -
Wrongful dismissal - Breach of
contract of employment -
Whether or not the facilities
which were granted to the named
customers were all done by the
Plaintiff after proper and
reasoned memos have been
prepared by the Corporate
Department of the Bank with
approval of the Managing
Director - Whether or not the
approval of a loan or credit
facility above the credit limit
of a relevant officer did not
amount to misconduct punishable
by dismissal
HEADNOTES
Until 6th February
2008, the Appellant herein was
in the employment of Merchant
Bank Ghana Ltd, the respondent,
(the bank) as the acting head of
the Credit Risk Management
Department. He was employed in
August 2005 and worked as next
in command in the said
department until his elevation
to the acting position of the
head of the said department. In
or about October 2007, the
respondent found cause to
complain about the manner the
appellant was performing his
role as head of the Credit Risk
Management Department of the
Bank. Therefore, wrote to the
appellant, (a query) to explain
his actions which was found to
have breached the rules of the
bank’s credit policy The
appellant wrote a response to
the query. The bank found
appellant’s explanations
unsatisfactory, it therefore
wrote, summarily dismissing him.
Following the bank’s required
proceedings in such matters, the
appellant petitioned the Board
of Directors of the bank. He did
not find favour with the board
and the petition was turned
down. The appellant turned to
the court for remedy and
instituted an action against the
bank in the High Court Accra.
The appellant lost the action in
the High Court. He appealed to
the Court of Appeal and lost as
well. The appellant is in this
court praying that this court
sets aside the judgment of the
first appellate
HELD
The appellant in his evidence
gave the account of how he built
up his carrier as a banker; he
holds a professional certificate
in banking and had worked in the
banking industry for over twenty
years. Exhibit F demonstrates he
has lost credibility in the
banking industry and may not be
able to ever get any employment
in the banking industry. What he
has lost as a result of his
termination by Guaranty Trust
bank is specifically quantified
in exhibit E. We however hold
the view that the appellant is
entitled to general damages in
the circumstances. We would take
the package he lost in the
alternative employment into
consideration and award him
three months salary in his
previous employment as at the
time of his dismissal as general
damages. The appeal succeeds;
the judgment of the Court of
Appeal is hereby set aside.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
King v Gyan [2017-2020] 1 SCGLR
912
Koglex Ltd. (N0 2) v Field
[2000] SCGLR 175
Tuakwa v Bosom [2001-2002] SCGLR
6
Gregory v Tandoh IV & Hanson
[2010] SCGLR 971
Sule v Nigerian Cotton Board
(1985) 2 N.W.L.R
Royal Dutch Airlines (KLM) and
Another v Farmex Ltd. [1989 -90]
2 GLR 632
Nartey-Tokoli & Others v Volta
Aluminum Co Ltd. (N0 2)
[1989-90] 2 GLR 341
Ashun v Accra Brewery
Ltd.[2009]SCGLR 81
Okrah v Agricultural Development
Bank [2016-2017] GLR
Delmas Agency Ghana Ltd v Food
Distributors International Ltd.
[2007-2008] SCGLR 748
Yugdong Industries Ltd v Ro Ro
Services [2005-2006] SCGLR 816)
Blaise Ofoe Mankwa v Merchant
Bank Suit No. AHR 39/2009 (GH)
Ltd.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DORDZIE (MRS.) JSC:
COUNSEL
GEORGE ANKOMA MENSAH FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
DOMINIC BRENYA OTCHERE FOR THE
DEFENDANT/RESPONDENT/
RESPONDENT.
DORDZIE (MRS.) JSC:-
Facts:
Until 6th February
2008, the Appellant herein was
in the employment of Merchant
Bank Ghana Ltd, the respondent,
(the bank) as the acting head of
the Credit Risk Management
Department. He was employed in
August 2005 and worked as next
in command in the said
department until his elevation
to the acting position of the
head of the said department.
In or about October 2007, the
respondent found cause to
complain about the manner the
appellant was performing his
role as head of the Credit Risk
Management Department of the
Bank. Therefore on 6/10/2007 it
wrote to the appellant, (a
query) to explain his actions
which was found to have breached
the rules of the bank’s credit
policy;
details of the breach were
particularized in the said
letter, (exhibit C). On
9/10/2007, the bank wrote the
appellant to proceed on leave
while it investigated matters.
The appellant wrote a response
to the query dated 13/10/2007.
The bank found appellant’s
explanations unsatisfactory, it
therefore wrote, summarily
dismissing him on 6/02/2008.
Following
the bank’s required proceedings
in such matters, the appellant
petitioned the Board of
Directors of the bank. He did
not find favour with the board
and the petition was turned
down.
The appellant turned to the
court for remedy and on
24/07/2008, he instituted an
action against the bank in the
High Court Accra.
The averments in the amended
statement of claim give the
facts upon which the appellant
instituted this action and they
are reproduced as follows:
1.
Plaintiff was until the 6th
of February 2008, an employee of
the Defendant Bank occupying the
position of acting Head, Credit
Risk Management Department.
2.
Defendant is a commercial bank
registered in Ghana and doing
business in the country
3.
Plaintiff was employed by the
Defendant bank sometime on 15th
August 2005 and worked
diligently and efficiently till
6th February 2008,
when the Defendant wrote a
letter dismissing Plaintiff from
its employment.
4.
Prior to the letter of dismissal
dated 6th February,
2008, the Defendant wrote a
letter dated 6th
December 2007, to the Plaintiff
leveling charges of
non-compliance of the Plaintiff
with approval limits of the
Defendant’s bank.
5.
Plaintiff will show that he
provided explanation to show
that the
facilities which were granted to
the named customers were all
done by the Plaintiff after
proper and reasoned memos have
been prepared by the Corporate
Department of the Bank with
approval of the Managing
Director who was entitled
under the Group Credit Policy of
the Bank to exercise discretion
to approve facilities above his
approval limit where the overall
interest of the bank will be
properly served.
6.
Plaintiff will show that the
mere
approval of a loan or credit
facility above the credit limit
of a relevant officer did not
amount to misconduct punishable
by dismissal. In fact, this
practice abound in the Defendant
bank and in the banking industry
as a means of facilitating
business among loyal customers
in the custom of the bank.
7.
The Plaintiff will further show
that under the rules, the only
thing the officer approving the
excess facility has to do is to
bring the excess approval to the
attention of the “next higher
authority” and to explain the
rational. The approval itself
did not amount to unacceptable
conduct. These are recognized as
“Policy Exceptions” under
paragraph 2:3:1 of the
Defendant’s Bank’s Group Policy.
8.
Plaintiff will show that he
never on his own personally
approved any excess facility for
any customer of the bank without
reference to the next higher
authority to himself (i.e. the
Managing Director) of the
Defendant bank who approved and
or ratified in accordance with
paragraph 2:3:5 of the “Merchant
Bank Group Credit Policy”
Regulations which is the
regulator manual for all Credit
and Risk Administration of the
Bank.
9.
Additionally, plaintiff will
aver that there were strong
business rationale supporting
the proposals to grant those
facilities with proposed
tangible benefit accruals to the
defendant bank since all the
excess approvals were supported
by reasoned and convincing memos
from the Corporate Department of
the bank giving reasons for the
grant of the loans or facility.
This is evidenced by Defendant’s
letter of 6th
December 2007 titled “Re Leave”
leveling the allegations of
approval excess facilities
without authority which made
copious references to the memos
initiating the various
transactions involving the
Plaintiff.
10.
Plaintiff will show that so long
as the rationale or reasons are
properly and convincingly laid
in reasoned memos from the
Corporate Department and
approved by both the Plaintiff
and Plaintiff’s ‘next higher
authority’ (i.e. the Managing
Director) the actions of
Plaintiff was perfectly within
the regulatory limits of the
Defendants bank and in
accordance with the Defendant
Bank’s Group Credit Policy.
11.
Plaintiff will also lead
evidence to establish that
between July 2007 and September
2007 the Board of Directors at
their meetings agreed and asked
that those facilities belonging
to these customers be brought to
the board for ratification. The
minutes of the Board on or
around this period will show
this fact.
12.
By reason of the lawful
authority of the Plaintiff
within the credit policy, the
excess grant to the following
customers of the bank namely:
(i)
Volta River Authority
(ii)
Exton cubic
(iii)
Holman Brothers
(iv)
MBG Limited
(v)
Western Steel
(vi)
Myroc
(vii)
B.5 Plus
(viii)
Broadband Home
(ix)
BCM Ghana Limited
(x)
Crystal Homes
(xi)
Mustek Engineering Limited
(xii)
Lancaster Plant Hire Limited
(xiii)
Plamers Green International
Limited
(xiv)
Umadi Company Limited
(xv)
Foto-X Limited
(xvi)
Bamson Company Limited
(xvii)
TV Afrcia
(xviii)
JFK Limited
(xix)
Letap Pharmacy
were all within the Plaintiff’s
authority as acting Head, Credit
Risk Management Department.
13.
All grants of loans and
facilities in monthly and
quarterly reporting compiled by
the bank and deliberated upon by
management of the Bank and every
month’s or quarter’s report was
assiduously sent for management
approval. It is therefore
surprising that the alleged
misconduct charges preferred
against the Plaintiff included
some facilities which had been
granted as far back as 2005,
against which no query have been
raised by management.
14.
Plaintiff says that in the case
of the customer PSG
International, which was cited
by the Defendant in a letter
dated 6th December
2007, the Plaintiff had nothing
to do with any transfer of any
amount in respect of the Advance
Payment by Ministry of Education
and the said allegation is a
veiled attempt to implicate him.
15.
Plaintiff sought to resign after
the allegation had been made
against him without prejudice
but same was refused by the
Defendant Bank and instead
dismissed.
16.
Procedurally Plaintiff will
challenge the steps taken before
and during the investigation to
dismiss him and will say that
Managing Director was the sole
person competent to sign his
dismissal letter.
17.
Plaintiff will show at the trial
that he has not misconducted
himself in any way since his 2
years employment with the
Defendant Bank and that rather
he had had favourable yearly
recommendations by the bank’s
management since he joined.
18.
Plaintiff was also compelled by
the Bank to pay back all loans
owed upon his dismissal.
19.
(a) Plaintiff aver that
(b) By reason of the perceived
label in the banking and
financial sectors, he was
labelled as a dishonest and
incompetent financial sector
worker and has suffered
severally both financially and
in terms of his reputation.
20.
Wherefore the Plaintiff is
aggrieved and has suffered
damage and claims as follows:
(i)
A declaration that Plaintiff’s
dismissal from the employment of
the Defendant bank by a letter
dated 6th February
2006 is unlawful.
(ii)
An order that Defendant Bank
pays all Plaintiff’s salary and
other entitlements due him from
the date of his suspension on
January 22nd to date
of final payment.
(iii)
General damages for
wrongful
dismissal
(iv)
Special damages amounting to
GHȼ80,187.03 per year or
GHȼ6,682.25 per month being loss
of income in alternative
employment as a result of the
pendency of the allegations of
financial impropriety leveled by
the Defendants.
(v)
Special damages amounting to
GHȼ80,187.03 per year or GH
ȼ6,682.25 per month being loss
of income in alternative
employment as a result of the
pendency of the allegation of
financial impropriety leveled by
the Defendants.
The appellant lost the action in
the High Court. He appealed to
the Court of Appeal and lost as
well. The appellant is in this
court praying that this court
sets aside the judgment of the
first appellate
court plus the cost awarded by
the said court.
Initially he canvassed the sole
ground that the judgment is
against the weight of evidence;
subsequently the appellant filed
as many as 15 additional
grounds. The said additional
grounds of appeal are as
follows:
1.
The Court of Appeal erred and
misconceived the meaning of the
word ratify when it held that
the various ratifications of
board did not absolve the
Appellant from the alleged
liability for excess loans.
2.
That the Court whilst dismissing
the ground which gave the
managing director the exclusive
mandate to sign the dismissal
letter, ruled that the credit
loan committee was the highest
specialized body for credit
approval and therefore could
take any management decision
whilst in the same breath
holding that the ratification by
same credit loan committee and
the board of Directors was not
effective to validate
“unauthorized loans” perpetrated
grave injustice on the
Appellant.
3.
The appellate Court failed to
appreciate the discretionary
clause 2.3.1 and 2.3.2 of the
credit policy (Exhibit “D”)
which gave the Appellant and
management the discretion where
there is a strong business
rational to grant excess loans.
4.
It was wrong for the appellate
Court to classify the exercise
of discretion in granting excess
loans as “misconduct” when there
is no evidence on record of
misconduct under the contract
policy of the Defendant’s bank.
5.
With the overwhelming evidence
of improvement in the bank’s net
worth, it was wrong for the
Appellate Court to uphold the
trial Court’s finding that the
actions of the Appellant brought
financial distress to the bank
6.
The appellate Court fell in the
same error of the trial High
Court, when it failed to
appreciate that ratification of
any excess loan by the Credit
Committee, Managing Director and
the board amounted to
regularizing same and therefore
absolved the Appellant from
blame.
7.
The Court of Appeal having found
out that the Appellant as head
of the credit risk Department
could grant excess loan above
his limit “where there was a
strong business rationale under
the policy” was wrong in holding
further that the Appellant has
misconducted himself in the
exercise of that discretion,.
8.
The Court of Appeal’s conclusion
that Plaintiff/Appellant
neglected his duties to show
that there was “a strong
business rationale” was wrong in
Law and was not borne out by the
evidence and therefore led to a
wrongful dismissal of ground ‘j’
before it.
9.
The Court’s decision to dismiss
ground (a) based on a conclusion
that, even though the trial
Court erred by holding that the
Managing Director has no
approved authority disabled the
Court from properly considering
the fact the Appellant was
instructed by the Managing
Director to grant excess loans.
10.
The Court misunderstood and
misapplied the concept of
ratification of excess loans
thereby leading to a mistaken
conclusion that even excess
loans which had been ratified
amounted to misconduct.
11.
The appellate Court’s holding
that the trial Court did not
find any evidence of
ratification to enable it to
absolve the Appellant of
wrongdoing is itself a clear
indication of injustice in the
face of multiple evidence of
ratification of excess loans on
the record.
12.
The Court of Appeal’s conclusion
that the Appellant’s defence is
the Managing Director’s
directives to Appellant to grant
excess loans could not stand
because the Managing Director
himself had been dismissed
should have been reversed, when
Appellant produced evidence of
the Managing Director being
cleared by a High Court decision
in suit
No. AHR 39/2009 intituled;
BLAISE OFOE MANKWA VRS MERCHANT
BANK (GH) LTD.
13
. The Court’s conclusion that
Appellant’s conduct led to the
Respondent’s Bank running into
liquidity problems with the Bank
of Ghana was unsupported by the
evidence on record.
14
. Both the Appellate Court and
the trial Court ignored the many
incidents of loans granted above
limits before, during and even
after the dismissal of the
Plaintiff/Appellant and
therefore could not make a valid
finding on the practice as a
convention in the Respondent’s
bank.
15
. The Court of Appeal
misinterpreted s.40 of the rules
and the conditions of service
which exclusively empowered the
Managing Director’s office as
the only office competent to
dismiss the Plaintiff/Appellant
led to a wrongful conclusion
that the Appellant’s dismissal
was
lawful.
Most of these additional grounds
are repetitive, this observation
reflects in the trend counsel
for appellant followed in
arguing the grounds. Apart from
additional grounds 3, 4 and 15 I
deem it appropriate to subsume
the rest of the additional
grounds under the initial ground
and consider them together. To
make this position clear I will
set down the grounds of appeal
we will consider in this appeal.
They are -
1. The judgment is against the
weight of evidence
2. The appellate Court failed to
appreciate the discretionary
clause 2.3.1 and 2.3.2 of the
credit policy (Exhibit “D”)
which gave the Appellant and
management the discretion where
there is a strong business
rational to grant excess loans.
3. It was wrong for the
appellate Court to classify the
exercise of discretion in
granting excess loans as
“misconduct” when there is no
evidence on record of misconduct
under the contract policy of the
Defendant’s bank
4. The Court of Appeal
misinterpreted S.40 of the rules
and Conditions of Service of the
bank, which exclusively
empowered the Managing Directors
office as the only office
competent to dismiss the
Plaintiff/Appellant, led to a
wrongful conclusion that the
Appellant’s dismissal was lawful
The Trial Court
At the trial the appellant apart
from the oral evidence by
himself and one witness, his
former managing director, he
produced numerous documentary
evidence in proof of his case.
In relation to the accusation
leveled against him that he
breached the bank’s group credit
policy by granting loans above
his credit authority, he
tendered the bank’s Group Credit
Policy’ as exhibit D. The
appellant stated that the bank’s
Group Credit Policy gives
guidelines for credit approvals.
He also tendered exhibit C the
letter written to him by the
respondent bank (a query) which
gives a list of the bank’s
customers he is accused of
entering unauthorized
transactions with. The appellant
maintained that he complied with
the policy guidelines, and he
did not breach the guidelines in
approving credits in excess of
his limit in the list of
transactions presented by his
employers in which he is accused
of misconduct. He made
particular reference to
paragraphs 2.3, 2.3.1, 2.3.2,
2.3.5, 2.5 and 2.6 (iv) to
demonstrate that he complied
with the policy guidelines in
granting the credit to the
various customers of the bank
listed in exhibit C, the letter
alleging his misconduct.
According to the appellant, by
the credit policy of the bank he
had the authority to approve
credit up to USD 300,000.
However, there are exceptions
where the policy allows him to
exceed this limit provided he
got the approval from his next
in authority he referred to
paragraph 2.3.5 of the Credit
Policy. He further stated that
all the transactions on which
the charges against him are
based were given approval by his
next in command of the hierarchy
of approving authorities which
was the Managing Director.
He maintains that it is the
practice of the Bank that where
a business is beneficial to the
bank and where there is
competitive pressure and the
bank stands the chance of losing
the business, the exception
clause in the credit policy of
the bank, that is clause 2.3.5
could be relied on to grant a
credit and later steps are taken
to ratify the transaction. He
tendered exhibit B and K series,
which are reports of the credit
committees meeting ratifying
credit approvals that were done
under the exception or emergency
clause and which include
companies whose transaction he
was accused of. He maintained he
excised the discretion given him
under the particular clauses
properly. His actions did not
amount to misbehavior warranting
summary dismissal
He denied that the approvals he
was accused of caused financial
loss to the bank, rather he said
the bank made a lot of profit
and he was commended for his
hard work throughout his work
period with the bank. He
tendered exhibit G his
performance appraisal to support
this. He said it was a big
surprise to him that he was
suddenly accused and asked to go
on leave. He offered to resign
his position but the management
of the bank refused and
summarily dismissed him.
Moreover, the transactions he
was accused of, which did not
have the Credit Committee’s
approval before he was asked to
go on leave were in the process
of being approved.
According to him the bank’s
liquidity problems that the
Central Bank’s report complained
of, had been a situation the
bank had faced for a long time.
His actions did not contribute
to that.
The appellant’s former Managing
Director gave evidence as PW2
confirming plaintiff’s evidence.
He was the plaintiff’s next in
command from whom he took
authority to give approvals
under the emergency clause of
the credit policy.
According to PW2 he joined the
bank in 2003 at that time the
bank was in total insolvency.
Its capital was in the negative,
as at 31st March
2003, the bank’s capital was
minus 6.9 billion. He joined the
bank in April 2003 and was given
the responsibility to
restructure the bank. He worked
with a team that included the
appellant and by June 2007, they
had accumulated a profit of over
400 billion cedis for the bank
to build its capital. Between
2003 and 2007 the bank’s capital
steadily increased. The central
bank’s examination reports
exhibit L series confirm this
evidence.
PW2 who was the appellant’s
immediate boss confirmed that
the appellant was appraised as a
strong performer at the bank
(Exhibit G, 2006 end of year
appraisal on appellant.)
The witness confirmed that the
charges leveled against the
appellant in exhibit C have no
substance. The excesses
complained of were normal
practice of the bank. The bank
raised more than 200 excesses in
a day and his team generated a
lot of profit for the bank. It
is not true for example that the
VRA transaction with the bank
was outside the bank’s normal
practice with VRA, who was one
of the bank’s prime customers
for a long period of time. That
the appellant granted
4,600,000.00 credit and that was
above 25% of the bank’s net
worth was false. The bank’s net
worth at the time was
40,000,000.00 and 25% of that is
10,000,000.00. It is also false
that the credit was not
syndicated. Various banks, e.g.
GT Bank, Fidelity Bank took part
in the syndication, exhibit H
pages 434 and 444 of the record
confirm this. The witness
maintained that all the
customers listed in the charges
against the appellant had their
authorization put through for
ratification. The credit
committee and the board ratified
most of them so the appellant
could not be accused of any
infractions. Apart from that,
the excesses did not pose any
problems to the bank; the bank
was making a lot of profit from
those transactions with the
named customers. Applications
were processed for approval
starting with the relationship
managers. They make sure that
the business conforms to the
bank’s regulations. They then
prepare appraisal report, which
is approved by the head of that
department. It goes to the
appellant for review then to the
credit committee for approval or
ratification depending on
whether the business had been
done already or not.
According to the witness, the
appellant had never been
reckless in handling these
transactions.
The witness admitted in
cross-examination that the
respondent bank dismissed him
(PW2) on the same charges as
those levelled against the
appellant therefore, he sued the
respondent bank. The writ and
pleadings in that suit were
tendered through the witness by
the defendant as Exhibits 1 and
2.
According to the witness, he
resigned from the bank in
October 2007 however; in
January/February 2008, he
received a letter that he had
been dismissed so he sued the
bank for wrongful dismissal.
It was confirmed through
cross-examination that the
companies from whose
transactions the appellant was
charged were the same as those
the witness was accused of.
The appellant subpoenaed an
officer of the bank who
testified as PW1 and tendered
some documents in custody of the
bank, which could not be
produced by the bank upon
application by counsel. These
are Bank of Ghana Examination
Reports exhibit L series,
Minutes of the Credit Committee
meetings, exhibit K series and
extracts from minutes of
Merchant Bank Board of Directors
meetings.
Defendant’s Case
The defendant bank in their
statement of defence simply
denied all the claims of the
plaintiff.
The executive director of
finance of the respondent bank
gave evidence on behalf of the
bank. He tendered the conditions
of service of the senior staff
of the bank as Exhibit 3.
He maintained the group credit
policy that guides the bank’s
credit transactions at the time
of the transactions the
appellant was accused of was not
Exhibit D, which is dated 2006,
but one dated July 2005. He
tendered this as Exhibit 4. What
is peculiar about these two
documents is that the contents
are the same except paragraph
2.5. Paragraph 2.5 of exhibit 4
omits the Managing Director as a
credit granting authority.
According to the witness, the
internal audit of the bank
investigated certain credits
granted by the bank. Their
report was submitted to a
committee for review; he chaired
that committee. Investigations
revealed that the appellant
granted some credits that were
above his credit limit. He was
given a query and he responded
to same, he tendered these in
evidence as Exhibits 5 and 6.
The committee gave a hearing to
the appellant on the charges
leveled against him. Thereafter
the committee issued a report,
which is Exhibit 7. The
committee recommended that the
appointment of appellant should
be terminated but the board
decided to dismiss him.
According to the witness, the
appellant breached the bank’s
credit policy and granted
credits beyond his limit. The
then Managing Director of the
bank according to him had no
credit authority therefore the
appellant’s position that he
took authority from the Managing
Director is not in place.
It is significant to note that
apart from a few of the
transactions in exhibit C which
have no stated dates, the
majority have dates on which the
appellant was alleged to have
approved the loans in excess of
his authority, the dates are
between 2006 and 2007. Exhibit C
is the defendant’s making, if in
the face of the dates on exhibit
C the defendant wants to rely on
exhibit 4 as the Group Credit
Policy that guided those
transaction, it has to provide
the evidence justifying that
assertion. Regrettably, the
defence failed to provide the
necessary evidence. It is
therefore not the right
statement of the facts, looking
at the contents of exhibit C to
say generally that exhibit 4 was
the Group Credit Policy that
guided the alleged transactions.
In any case, the trial court
relied on exhibit D as the
applicable group credit policy;
in our view, it rightly did so.
The trial court however
committed some blunders in its
findings of fact; details of
that will soon be demonstrated.
Findings of the Trial High Court
The trial judge made the
following findings of fact from
the evidence presented to him:
a)
The Managing Director is not an
approving authority under the
group credit policy; the policy
excludes the office of the
Managing Director as an
approving authority. The
Managing Director was dismissed
for approving the same
transactions that formed the
basis of plaintiff’s dismissal.
This finding is in error; he
referred to Exhibit D as the
group credit policy he was
basing his findings on (see page
60 of the record); which is the
correct credit policy covering
the transaction in question.
However, he quoted paragraph 2.5
of Exhibit 4, giving the list of
the various levels of approval
authority, which excludes the
office of the Managing Director.
Exhibit D has the Managing
Director as number 4 in the
level of approving authorities
(see page 46 of the record). The
evidence provided by the defence
on the question of PW2, the
former MD’s dismissal is
exhibits 1 and 2. These are the
pleadings in a pending case in
the High Court on the MD’s
dismissal. No evidence was
before the trial court that the
case had been decided and it
went in favour of the defendant.
To hold that the MD was
dismissed on the same charges
levelled against the plaintiff
therefore the alleged approvals
he gave to the plaintiff were
wrong is the trial court’s own
speculative view; there is no
evidence supporting such a
finding.
b)
The trial court further found as
a fact that plaintiff could not
produce any document to support
the alleged practice of the bank
he followed to grant approvals
in excess, This finding is
contrary to exhibit H, exhibit M
series and exhibit B series,
therefore erroneous.
c)
PW1 was subpoenaed by the
plaintiff to tender various
documents in the custody of the
bank, which the bank failed to
produce upon application. The
trial court made a finding that
the evidence of PW1 in
cross-examination admitted the
suggestion that plaintiff’s
approval of credits in excess of
his authority caused liquidity
challenges to the bank. That
admission according to the trial
court corroborates the
defendant’s case therefore the
plaintiff’s acts amounted to
misconduct. It is important to
note that PW1 tendered various
documents; that was the purpose
for which she was subpoenaed. In
analyzing the evidence of PW1
the trial court did not
identified any of those
documents that demonstrate that
the actions of the plaintiff
caused liquidity problems to the
defendant. That is the assertion
of the defendant but there is no
evidence from answers of PW1 in
cross-examination that
establishes that fact. The
premise on which the trial court
based this finding in our view
is erroneous.
The Court of Appeal
Though the Court of Appeal held
that the trial judge erred in
its findings that the Managing
Director under the Group Credit
Policy of the bank had no
approving authority, it upheld
the conclusions the trial court
drew that the appellant breached
the policy therefore his
dismissal was not wrongful. The
court rightly stated that an
appeal is by way of rehearing
but failed to do what is
required in the re-hearing
process. This court re-stated
the principle of re-hearing in
the appeal process in a recent
decision in the case of
King v
Gyan [2017-2020] 1 SCGLR 912,
at 918. The court
made reference to earlier
decisions in the cases of
Koglex
Ltd. (N0 2) v Field [2000] SCGLR
175; Tuakwa v Bosom
[2001-2002] SCGLR 61
and held that ….…..‘ an
appeal at whatever stage is by
way of rehearing as every
appellate court has a duty to
examine the record of
proceedings by scrutinizing
pieces of evidence on record and
ascertain whether the judgment
is supported by the evidence. In
that respect the appellate court
can draw its own inferences from
the established facts and in
arriving at its judgment, the
appellate court can affirm the
judgment for different reasons
or vary it.”
As
at the time the Court of Appeal
gave its judgment the case
before the High Court against
the former Managing Director on
the same charges had been
delivered. It is significant to
note that the said judgment was
delivered on 20th
March 2014. The Court of Appeal
judgment is dated 31 July 2014.
The appellant has stated in
paragraph 12 of his additional
grounds of appeal that he drew
the attention of the Court of
Appeal to the outcome of that
case which was pleaded by the
defendant but the court gave no
consideration to the outcome of
that case; rather, it endorsed
the trial court’s finding based
on the premise that the Managing
Director who gave the approval
to plaintiff to approve credits
in excess was also dismissed on
the same charges. The lack of
proper scrutiny of the record by
the Court of Appeal led to it
overlooking relevant documentary
evidence to enable it draw an
independent conclusion on the
established facts. In this
appeal, the appellant is
essentially attacking the
findings of fact made by the
trial court and concurred in by
the lower appellate court.
The law on the circumstances in
which the second appellate court
like the Supreme Court may
interfere with concurrent
findings of fact of the two
lower courts have been firmly
established in many often-cited
decisions of this court. In the
case of
Gregory v Tandoh IV & Hanson
[2010]SCGLR 971 this
court per Dotse JSC at page 896
-897 of the report re-stated the
circumstances and held as
follows: “It is therefore
clear that, a second appellate
court, like the Supreme Court,
can and is entitled to depart
from findings of fact made by
the trial court and concurred in
by the first appellate court
under the following
circumstances: First, where from
the record of appeal, the
findings of fact by the trial
court are clearly not supported
by the evidence on record and
the reasons in support of the
findings are unsatisfactory;
second, where the findings of
the trial court can be seen from
the record of appeal to be
either perverse or inconsistent
with the totality of evidence
led by the witnesses and the
surrounding circumstances of the
entire evidence on record;
third, where the findings of
fact made by the trial court are
consistently inconsistent with
important documentary evidence
on record; fourth, where the
first appellate court had
wrongly applied the principles
of law…..the second appellate
court must feel free to
interfere with the findings of
fact in order to ensure that
absolute justice is done in the
case”
From our analysis of the
findings made by the trial
court, partly affirmed by the
first appellate court, important
documentary evidence were
overlooked or ignored by both
lower courts. To do total
justice therefore, it is lawful
for this court to review the
evidence anew and draw its own
conclusions both on the facts
and on the law.
Submissions of counsel for the
appellant
In arguing the appeal, counsel
for the appellant made the
following submissions:
The court of Appeal disregarded
the evidence of the defence
admitting plaintiff’s assertion
that the credits he granted in
excess were subsequently
approved by the Credit
Committee, a higher approval
authority; therefore, the
responsibility of those
approvals had been taken from
the plaintiff and should not be
held liable for those excesses.
Though the defendant qualified
this admission by saying that
the bank was compelled to
regularize those excesses to
protect the bank’s assets, the
defence did not provide any
evidence on how plaintiff’s acts
exposed the bank’s assets to
danger.
Though the Court of Appeal held
that the trial court erred in
its fact finding that the
Managing Director of the
defendant had no approval
authority, it failed to set
aside the conclusions of the
trial court based on the said
finding (that the plaintiff
breached the bank’s credit
policy by taking instructions
from the Managing Director who
had no approval authority).
That the trial court and the
Court of Appeal totally ignored
clause 2.6 (iv) of the Credit
Policy Exhibit D. This accounts
for the Court of Appeal’s
failure to consider all the
evidence (documentary inclusive)
before coming to its conclusions
as required of the Appellate
court.
It is a further submission by
counsel for appellant that the
plaintiff tendered documentary
evidence supporting his
assertion that the bank’s
fortunes increased during his
tenure of office as the head of
the Credit Risk Management
between 2005 and 2007. He
referred to Exhibit L series.
According to counsel, the two
lower courts ignored these
documentary evidence and based
their decision on Exhibit J.
Exhibit J however does not give
any satisfactory support to the
conclusions of the two lower
courts that the bank faced
liquidity problems and this was
due to the acts of the
plaintiff. He further argued,
that the appellant tendered a
number of documentary evidence
to demonstrate that it is the
bank’s normal practice that the
Managing Director and the Credit
Risk Manager approve credits
that are in excess of their
authority when that becomes
necessary; such approvals are
ratified later by the Credit
Committee. These pieces of
evidence show that even before
the Plaintiff was employed and
after his dismissal, the
practice continued. It was
therefore wrong for the two
lower courts to conclude that
the plaintiff’s acts amounted to
misconduct.
Submission by defendant
In reply to the above
submissions counsel for the
respondent bank argued that the
appellant failed to follow due
process in approving credits
that were beyond his authority.
The defendant bank was therefore
justified in dismissing him
summarily. Counsel urged this
court not to disturb the
conclusions reached by the two
lower courts because those
conclusions are supported by the
evidence on record. It is the
defence’s argument that the
ratification the appellant
relied on to defend his actions
are ratifications of PW2, the
managing director at the time
and not the Credit Committee.
This argument is contrary to the
documentary evidence on record.
Exhibit K series has reports of
the Credit Committee’s
ratification of the appellant’s
approvals.
Counsel further argued that an
illegal act could not be
validated by subsequent
ratification. It is a further
argument of Counsel that Exhibit
J particularly page 805 of the
record, the Bank of Ghana
Examination report laid the
liquidity problems the bank had
at the feet of the appellant,
PW2 and one other staff who were
dismissed from the bank.
Unfortunately, page 805 of the
record does not reflect the
above submission; page 805 of
the record is the first page of
the 2006 bank of Ghana
Examination report exhibit L4.
Moreover, the entire report does
not specifically attribute any
of its findings to the
appellant’s mismanagement. This
submission therefore is
misleading.
It is a further submission by
Counsel that our courts have
followed the Common Law
principle that an employer is
justified in summarily
dismissing an employee where the
employee’s actions are injurious
to the business of the employer.
Counsel’s argument on the
question of the signing of the
dismissal letter is that the
Board of Directors was
responsible for the
administrative running of the
bank at the time there was no
Managing Director in office.
They authorizing the writing of
the dismissal letter cannot be
faulted.
Issues
Upon considering the evidence on
record and the submissions made
for and against the appeal, we
identify the following as issues
for determination by this court:
a)
Whether the appellant’s acts
breached the Credit Policy of
the defendant bank.
b)
Whether the appellant’s acts
amounted to misconduct
c)
Whether his summary dismissal is
justified.
d)
Whether the dismissal letter
breached S 40 of the bank’s
Rules and Conditions of Service
The resolution of issues a), b)
and c) would determine grounds
1, 2, and 3 of the grounds of
appeal as set out in the earlier
part of this judgment.
Analysis of the evidence
From the appellant’s evidence
clause 2.3 of the bank’s
credit policy gave him the
discretion to grant approval to
the transactions his employers
accused him of. Paragraph 2.3
provides exceptions to the
credit policy guidelines. The
relevant portions of the credit
policy to the issues are
reproduced below
“2.3 Policy exceptions
2.3.1 It is recognized that in
any dynamic business
environment, there are changing
customer needs, competitive
pressures and certain economic
variables such that certain
propositions may fall outside
this policy. Where there is a
strong business rationale for
supporting proposals that fall
outside this Policy, credit
applications must clearly state
and if possible, quantify the
tangible benefits that will
accrue if the proposition is
approved.
2.3.5 If the exception is done
it must be reported for
subsequent approval/ratification
by the next higher authority.”
It is clear from the wording of
the paragraphs of the policy
quoted above that the policy
recognizes circumstances where
the bank may stand to gain from
a particular transaction, but
the policy may not have made any
provision for the situation;
therefore an approving officer
may exercise his discretion in
the interest of the bank’s
business. In the exercise of
such discretion, the guiding
principles however must be:
i)
The proposal that falls outside
the policy must have a strong
business rational
ii)
ii) The application must state a
tangible quantification of the
benefits that will accrue to the
bank if the credit is approved.
iii)
iii) Upon approving an
application in these
circumstances a report of the
transaction must be made ‘for
subsequent approval/ratification
by the next higher authority.’
In the case of the appellant,
the next higher authority in the
hierarchy of authorities is the
Managing Director.
Clause 2.5 of the credit policy
exhibit D provides the levels of
authority and the amounts
permitted at every level, it
reads as follows:
“2.5 Limits and Credit Policy
Credit decisions will only be
made within authority levels
formally delegated through
credit authority letters. For
the time being, the following
subsists:
Approving Authority
Limit*
Board of Directors
Above 20% of the bank’s net
worth
Finance Sub
Committee Up to 20% of the
bank’s net worth
Credit
Committee Up to
15% of the bank’s net worth
Managing
Director
Up to 2.5 of the Bank’s net
worth
Head, CRM
Up to 0.3 M
M/CRM
Up to 0.1m
*Or Cedi equivalent of
USD
The bank’s net worth refers to
the net worth as at the end of
the last quarter. In all levels
of approving authority, the due
process must be followed.
Periodic reports on approvals
made will be advised to the
Credit Committee on approved
formats. Authority levels can be
curtailed as well as extended in
line with performance. Credit
authority is personal to the
approver and must not be
delegated to other persons who
may even be relieving incumbent”
The appellant produced evidence
to establish that he followed
the procedure laid down as
stated above in granting the
credits his employers are
complaining of. He provided
further evidence to confirm that
the approvals he made did not
stop at the managing director,
his next in command but went to
a further approval authority,
the Credit Committee for
ratification. Exhibits B, K and
M series the Credit Committee
reports confirm that some of the
credit committee’s approvals
were ratifications. He cited
transactions with VRA under the
emergency clause, which he said
always brought a lot of profit
to the bank. The first charge
against the appellant in exhibit
C is that he approved an
overdraft of Ghc 4.6 million to
VRA without syndication contrary
to Bank of Ghana requirement.
The Bank of Ghana examination
report exhibit L series have it
that the loans were syndicated
by other banks. The problem
however was that the booking of
the loans was wrong. The
syndicated loan was put solely
in Merchant Bank’s loan books.
The charge against the appellant
in respect the VRA transaction
therefore has proved to be
false.
The appellant’s evidence further
established that none of the
transactions complained of
brought any injury to the
respondent’s business. In proof
of this assertion, he tendered
his performance appraisal report
exhibit G that highly commended
him as a diligent worker. The
central bank rated the yearly
performance of the defendant
bank as satisfactory. The report
Exhibit L series covers
2005/2006 and 2006/2007 periods
these are the periods the
appellant worked with the bank.
The liquidity of the bank was
rated satisfactory for those
periods. The respondent
admitted, confirming PW2’s
evidence, that during the tenure
of the appellant as the head of
the credit risk unit of the bank
the solvency situation of the
bank improved year by year. The
respondent alleged the loss the
bank incurred through penalties
were as the result of the acts
of the appellant. The respondent
maintain the appellant’s actions
brought liquidity problems to
the bank and caused the bank to
pay penalties. The Bank of Ghana
Examination reports, exhibits L,
L1, L2, L3 and L4, from 2003 to
2007 all commented on the
respondent banks liquidity
problems and blame it on poor
management, particularly poor
treasury management. The court
of appeal missed it when it
quoted the Bank of Ghana
Examination comments on the
liquidity problems the
respondent bank faced from
exhibit L4 and said it was
exhibit J and that is
documentary proof that linked
the appellant’s act to the
respondent’s liquidity problems.
The Bank of Ghana examination
reports comments on the
respondent’s default in
liquidity requirements show that
the respondent’s liquidity
problems had been long standing
before the appellant was
employed. The reports exhibit L1
dated 31st March 2004
and L2 dated 31st
March 2005 testify to this. In
exhibit L4 dated 30th
June 2007 the report made this
general comment on the
respondent bank’s performance.
“MBG’s management has exhibited
weakness in the management of
credit and liquidity risks which
undermine good corporate
governance practices”
If it is the respondent’s case
that the poor corporate
management practices can be laid
at the feet of the appellant, it
bears the onus to prove it.
Unfortunately, the respondent
failed to produce any convincing
evidence to establish that the
appellant’s acts led to its
liquidity requirement defaults
that existed since 2003.
From our analysis of the
evidence, the respondent’s
allegation that the appellant
breached the bank’s credit
policy cannot be true. He had
the discretion to grant credits
beyond his limit under clause
2.3.1 provided he met the
conditions set out in 2.3.5, he
met those conditions. The
contrary finding made by the
lower court on these facts do
not support the evidence on
record.
The document regulating the
relationship between the parties
is Merchant Bank Rules and
Conditions of Service exhibit 3.
The respondent followed the
required disciplinary procedure
and gave the appellant a hearing
by constituting a committee that
investigated the charges leveled
against him. The committee’s
report is exhibit 7, and the
recommendations of the committee
are that:
“Mr. Agbeli’s conduct
constitutes a breach of rules
and regulations of service,
unsatisfactory service and
causing substantial loss to the
bank. It is recommended that his
appointment be terminated.”
Based on the above
recommendations the respondent
wrote exhibit A dismissing the
appellant summarily. The
relevant paragraphs of the
dismissal letter are paragraphs
1 & 2 and they read, “We refer
to the queries in our letter to
you dated 6th
December, 2007, your response
dated 7th December,
2007 and your subsequent meeting
with a Committee on Thursday, 24th
January, 2008.
We are instructed to inform you
that the Board has considered
your explanations carefully and
found your conduct
unacceptable. You are hereby
dismissed from the services of
Merchant Bank (Ghana) Limited
with immediate effect.”
Section 7 (41) & (42) of the
conditions of service of the
bank gives a list of what
consists a misconduct of an
employee warranting summary
dismissal and penalties the
subsections read:
“Summary Dismissal and Other
Penalties
It is misconduct for an
employee:
(i)
To be consistently absent from
duty without leave or reasonable
excuse;
(ii)
To be insubordinate or refuse to
obey a legitimate and reasonable
instruction;
(iii)
Without reasonable excuse to
refuse or fail to proceed on
transfer or leave when directed
to do so;
(iv)
To use without the consent of
the appropriate authority, any
property or facilities provided
for the purpose of the Bank’s
business for any purpose not
connected with his official
duties;
(v)
To engage in any activity
outside his official duties
which is likely to involve him
in conduct likely to bring the
Bank into disrepute or to lead
to his taking improper advantage
of his position with the bank.
42.
(i)
An employee aiding and abetting
another employee to infringe any
Rule or Condition of Service,
shall render himself liable to
dismissal from the service of
the Bank or to such other
disciplinary action as the Bank
may decide to take against him.
(ii)
The following are the penalties
that may be imposed in
disciplinary proceedings in
respect of the misconduct,
breach of rules and regulations
of service or unsatisfactory
service of an employee:
(a)
Issue of a warning letter;
b)
Suspension without pay
c)
Withholding annual increment;
d)
Reduction in salary, that is
immediate adjustment of salary
to a lower point on the salary
scale attached to the post in
question;
e)
Reduction in rank; that is
removal to another grade with an
immediate reduction in salary;
f)
Dismissal/termination of
appointment with or without a
reduction in end-of-service
benefits;
g)
Summary dismissal (that is
termination of an appointment
with forfeiture of all
end-of-service benefits) for
just and proper cause involving
dishonesty, fraud, negligence
involving the Bank in a
substantial loss and gross
misconduct.”
From our analysis of the
evidence on record, the two
lower courts failed to take into
consideration the contents of
the numerous important
documentary evidence the
appellant tendered in proof of
his case therefore erred in the
conclusions they came to. The
established facts are clear that
the appellant exercised his
discretion under paragraphs
2.3.1 and 2.3.5 of the bank’s
credit policy therefore did not
breach the credit policy of the
bank. That aside the credit
approvals he made were
subsequently ratified by the
Credit Committee. There is no
evidence on record proving that
the bank’s liquidity requirement
breaches, which led to penalties
imposed on the respondent by the
Central Bank, were caused by the
appellant. The appellant in the
circumstance cannot be accused
of any misconduct warranting
summary dismissal
Black’s Law Dictionary 5th
Edition defines misconduct as “a
transgression of some
established and definite rule of
action, a forbidden act, a
dereliction from duty, unlawful
behavior….”
In the case of
Sule v Nigerian Cotton Board
(1985) 2 N.W.L.R
(pt5)17 The Supreme Court of
Nigeria held: “to warrant a
summary dismissal, it is enough…
that the conduct of the servant
is one of such a grave and
weighty character that
undermines the relationship of
confidence which should exist
between master and servant.”
The appellant’s conduct in the
employment of the respondents
did not fall into the above
definition. We hold that his
dismissal was wrongful.
On the final ground of appeal
that S. 7 (40) of the
respondent’s Rules and
Conditions of Service was
breached in the signing of the
dismissal letter, the
appellant’s argument is that the
trial judge erred when he
admitted that the signing of the
letter of dismissal by the head
of human resources contravenes
S. 40 of the Rules and
Conditions of service of the
bank and yet held that the
practice was right. The Court of
Appeal’s approach to the issue
is that he who appoints has the
power to dismiss, the Credit
Risk Manager is appointed by the
Board of Directors, therefore
the board has the power to
delegate signing of the
dismissal letter. It is indeed
the Board of Directors who
appoints a credit risk manager.
Section 1 (4) (iii) of the
Rules and Conditions of Service
provides: “The divisions of
the Bank are as follows:
a)
Credit Risk Management
b)
Operations
c)
Finance
d)
Merchant Banking
e)
Corporate Relations and Research
& Product Development.
They shall be headed by General
Managers who shall be appointed
by the Board of Directors from
the Management staff of the
Bank”
Per the provisions of the Rules
and Conditions of Service of the
Bank, the Board of Directors is
the authority that appointed the
appellant, in the absence of the
Managing Director it is in place
if the Board delegates it
authority to the officers who
signed the dismissal letter.
This ground of appeal fails. All
other grounds succeeds. We hold
that the appellant’s dismissal
by the respondent was wrongful
Having declared the appellant’s
dismissal wrongful, we will next
consider his claims in damages.
We will re-state the said claims
(i)
An order that Defendant Bank
pays all Plaintiff’s salary and
other entitlements due him from
the date of his suspension on
January 22nd 2008 to
date of final payment.
(ii)
General damages for wrongful
dismissal
(iii)
Special damages amounting to
GHȼ80,187.03 per year or
GHȼ6,682.25 per month being loss
of income in alternative
employment as a result of the
pendency of the allegations of
financial impropriety leveled by
the Defendants.
Wrongful dismissal is a
breach of
contract of employment, the
usual remedy for wrongful
dismissal is award of damages.
The general principle for
calculating damages or loss is
that the damages should put the
claimant in the position that he
would have been had the contract
been properly performed, to the
extent that money can achieve
this. This principle has been
the guideline in considering
measure of damages in issues
related to breach of contract.
Thus in the case of
Royal Dutch Airlines (KLM) and
Another v Farmex Ltd. [1989 -90]
2 GLR 632 this
court held that “On
the measure of damages for
breach of contract, the
principle adopted by the courts
in many cases is that of
restitutio in integrum, i.e. if
the plaintiff has suffered
damage that is not too remote,
he must, as far as money can do
it, be restored to the position
he would have been in had that
particular damage not occurred”
As to the measure of damages the
appellant is entitled to, we
would be guided by the previous
decisions of this court on the
issue. In the case of
Nartey-Tokoli
& Others v Volta Aluminum Co
Ltd. (N0 2) [1989-90] 2 GLR 341
held that “The
measure of damages for wrongful
dismissal from employment was
not to be confined to only loss
of wages or salary but in
addition the employee was to
receive his entitlements under
the
contract of employment”
In a subsequent decision in the
case of
Ashun v Accra Brewery
Ltd.[2009]SCGLR 81
this court followed its previous
decision in the Narte-Tokoli
case and held that “In
principle, in the absence of any
contrary statutory or
contractual provision, the
measure of damages for wrongful
termination of employment under
the common law of Ghana was
compensation based on the
employee’s current salary and
other conditions of service for
a reasonable period within which
the aggrieved party was expected
to find alternative employment.
In other words the measure of
damages was the quantum of what
the aggrieved party would have
earned from his employment
during such reasonable period,
determinable by the court after
which the employee should have
found alternative employment.”
See also
Okrah v Agricultural Development
Bank [2016-2017] GLR
where Appau JSC made a
brilliant exposition of the law
on measure of damages discussing
the various previous decisions
of this court.
Per section 7 (42) (g) of the
respondent’s Rules and
Conditions of Service, summary
dismissal connotes ‘termination
of appointment with forfeiture
of all end of service benefits.’
This means the appellant lost
all end of service benefits. To
put him back in the position he
would have been had the breach
not occurred. We hold that the
appellant is entitled to his
salary and allowances for a
reasonable period within which
the appellant could have secured
an alternative employment. We
consider fifteen months a
reasonable period; we therefore
order that the appellant be paid
his salaries and allowances as
at the time of his dismissal for
fifteen months. In addition, he
should be paid his retirement
benefits; that ought to be
whatever package ‘retirement
benefits’ as captured in the
Rules and Conditions of service
of the respondent bank entails
for the position he held in the
bank before his dismissal.
The appellant took steps to
mitigate his loss, he looked for
employment in other institutions
and got one with Guaranty Trust
Bank he tendered exhibit E, his
appointment letter from that
bank. This letter sets out the
terms of his engagement and the
emolument due him as follows:
“Dear David,
APPLICATION FOR EMPLOYMENT
Further to your application and
interview, we are pleased to
offer you the position of a
senior manager in our bank.
Your primary responsibility and
professional loyalty will be to
Guaranty Trust Bank (Ghana)
Limited. You will be prepared to
serve the bank anywhere within
and outside Ghana and in
whatever capacity the Managing
Director deems appropriate from
time to time.
A schedule of your duties and
responsibilities will be given
to you on your resumption of
duty. Your employment is also
subject to the terms contained
in the Staff handbook and other
rules of employment.
The current annual compensation
package attached to your
position is as follows:
Basic
salary
- 28,980.00
Lunch subsidy
- 875.00
utility allowance
- 4069.03
entertainment allowance -3150.00
housing allowance -
11,550.00
Clothing allowance -
4200.00
furniture allowance - 4200.00
passeges -
12,600.00
education subsidy - 5250.00
13th month pay -
2415.00”
On 8th of February
2008 Guaranty Trust Bank
terminated his appointment per
exhibit F which reads:
“TERMINATION OF EMPLOYMENT
In view of the circumstances
surrounding the exit of your
previous employment with
Merchant Bank limited we have no
choice than to void the offer
you accepted.
Thank you for your interest in
Guaranty Trust Bank and we wish
you great success in your future
endeavours yours faithfully.”
For this loss the appellant
claims special damages in the
sum of Ghc 80, 187.03 being his
earnings per annum with Guaranty
Trust Bank had his appointment
not been terminated due to
respondent’s acts. Special
damages is quantifiable loss
suffered by a claimant, the law
requires that it is specifically
pleaded and strictly proved.
This court, in a number of cases
had drawn distinction between
general damages and special
damages and explained the
rationale behind the award of
compensation under these
headings.
In Delmas Agency Ghana Ltd
v Food Distributors
International Ltd. [2007-2008]
SCGLR 748 at
760 the court per Dr.
Twum JSC drew the distinction in
the following words:
General damages is such as the
law will presume to be the
natural or probable consequences
of the defendant’s acts. It
arises by inference of the law
and therefore need not be proved
by evidence. The law implies
general damage in every
infrigment of an absolute right.
The catch is that only nominal
damages are awarded. Where the
plaintiff has suffered a
properly quantifiable loss, he
must plead specifically his loss
and prove it strictly.” (see
also
Yugdong Industries Ltd v Ro Ro
Services [2005-2006] SCGLR 816)
The appellant in his evidence
gave the account of how he built
up his carrier as a banker; he
holds a professional certificate
in banking and had worked in the
banking industry for over twenty
years. Exhibit F demonstrates he
has lost credibility in the
banking industry and may not be
able to ever get any employment
in the banking industry. What he
has lost as a result of his
termination by Guaranty Trust
bank is specifically quantified
in exhibit E.
We however hold the view that
the appellant is entitled to
general damages in the
circumstances. We would take the
package he lost in the
alternative employment into
consideration and award him
three months salary in his
previous employment as at the
time of his dismissal as general
damages.
The appeal succeeds; the
judgment of the Court of Appeal
is hereby set aside.
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
PROF.
N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
I. O. TANKO AMADU
(JUSTICE OF THE SUPREME
COURT)
PROF. H. J. A. N.
MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
GEORGE ANKOMA MENSAH FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
DOMINIC BRENYA OTCHERE FOR THE
DEFENDANT/ RESPONDENT/
RESPONDENT. |
