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BY
COURT:
JUDGMENT
The Plaintiff claims against the
Defendant the recovery of the
sum of GH¢133,820.00 being
salary arrears owed him from
October 2004 to April 2008 when
he served as the Executive
Chairman of the Ghana School
Feeding Programme. He also
claims damages for wrongful
dismissal and interest on the
above sums.
The Writ of Summons was served
together with a statement of
claim. The Defendant filed a
statement of defence wherein the
material averments in the
statement of claim were denied.
The Plaintiff filed a reply and
at the close of pleadings issues
were agreed and adopted for
determination at the trial.
It was only the Plaintiff who
testified in this case. He did
not call any witnesses. The
Defendant did not testify at
all. The law is that under the
Evidence Act 1975 NRCD 323, the
burden of producing evidence in
any given case was not fixed but
shifted from party to party at
various stages of the trial
depending on the issue(s)
asserted and/or denied: See Re
Ashalley Botwe Lands; Adjetey
Agbosu & Ors Kotey & Ors
[2003-2004] SCGLR 420 at 425.
Having neglected to avail
himself of the opportunity of
leading evidence on the
allegations made in its defence,
I am left with the evaluation
and assessment of the evidence
led by the Plaintiff alone in
this case. The rationale for
the principles above is that
averments in pleadings do not
themselves constitute evidence.
Therefore, failure to lead
evidence on facts pleaded means
an abandonment of those
averments.
Furthermore, failure to lead
evidence on facts pleaded also
amounts to an admission of the
claim of the adversary: Enumuo V
Dim [2002] 25 Weekly Report of
Nigeria 93 at page 111 (Court of
Appeal). In the Ashalley Botwe
case supra, Brobbey JSC
comprehensively stated the law
on the situation I am faced with
in the following words at pp
364-365:
“The effect of Sections 11(1)
and 14 and similar Sections in
the Evidence Decree………may be
described as follows: A
litigant who is a Defendant in a
civil case does not need to
prove anything; the Plaintiff
who took the Defendant to Court
has to prove what he claims he
is entitled to from the
Defendant. At the same time if
the Court has to make a
determination of a fact or of an
issue and that determination
depends on an evaluation of
facts and evidence the Defendant
must realize that the
determination cannot be made on
nothing. If the Defendant
desires the determination to be
made in his favour, then he has
the duty to help his own cause
or case by adducing…….such facts
or evidence that will induce the
determination to be made in his
favour. The logical sequel to
this is that if he leads no such
facts or evidence, the Court
will be left with no choice but
to evaluate the entire case on
the basis of the evidence before
the Court which may turn out to
be only the evidence of the
Plaintiff. If the Court chooses
to believe the only evidence on
record, the Plaintiff may win
and the Defendant may lose.
Such loss may be brought about
by default on the part of the
Defendant………..”
From the statement of the legal
principles above, it would be a
very serious gamble for a
defendant to neglect to lead
evidence in a case under our
law. I shall apply the above
principles in evaluating and
assessing the facts and evidence
on record.
The first issue is whether or
not the Plaintiff was appointed
the Executive Chairman of the
Ghana School Feeding Programme
(GSFP). In paragraph 1 of the
statement of claim it was
averred that the Plaintiff was
the Executive Chairman of the
GSFP from October 2004 to April
2008. In his examination in
chief, the Plaintiff said he was
officially employed by the GSFP
in October 2004. He said it was
he who brought the programme
into the country and before 2004
he had gone all over the country
and had set up all the necessary
structures for the take-off of
the programme. He explained
that he was not given any letter
of appointment. This according
to him was because there were a
lot of political shuffles. The
programme was first under the
Ministry of Nepad and Regional
Cooperation; then the Ministry
of Education and finally the
Ministry of Local Government.
In the end therefore, he said he
did not know who was to give him
the letter of appointment. The
fact that the Plaintiff was
employed as the Executive
Chairman of the GSFP was not
denied in cross-examination.
The exchanges went thus:
“Q. ……….In your last
evidence you said you were
appointed by the President.
A. Yes through the various
ministers……..
Q. Can you tell this Court
how old you were when you were
appointed by the Government?
A. I was in my sixties.
Q. Now………you were not
given any appointment letter.
A. No, I was not but I
knew the Ministries were working
according to some instructions
and structure.
Q. I am suggesting to you
that the President appointed you
without any formal letter.
A. I believe the
appointment was well established
between the Ministry of Finance
by the President and the
Ministry of Local Government and
Nepad.”
From the evidence above, I am
satisfied that the Plaintiff was
appointed the Executive Chairman
of the GSFP. It was however
without any formal letter to
that effect.
The next issue is whether or not
the Ministry of Local Government
and Rural Development determined
the Plaintiff’s remuneration to
be GH¢3,834.00 per month.
The Plaintiff testified that
initially he was placed on an
allowance of GH¢1,000.00 a
month. He said in-chief that
when he started the pilot
programme there were ten schools
for the whole country, that is,
one school per region. It was
in October 2004 that he was
given an allowance of
GH¢1,000.00 per month. He said
he was told that at the
appropriate time a consultant
would be engaged to establish
his just salary and he would be
paid. He said the communication
about his allowance and salary
was by letter which he tendered
in evidence as Exhibit ‘C’. The
exhibit is dated 7th
February 2008. It was written
by the then Minister for Local
Government and Rural Development
(MLGRD) to his colleague
Minister of Finance and Economic
Planning (MF&EP). By the letter
the MLGRD was forwarding the
proposed remuneration for the
staff of GSFP including the
Plaintiff to the Minister of
Finance for his approval. The
Ministry had stated that it had
no objection to the Proposals.
The proposed salary structure
for staff of GSFP was attached
to the letter. It is entitled
“Ghana School Feeding Programme
Proposed Salaries.” The
positions listed included that
of the Plaintiff and his monthly
salary was stated to be
GH¢3,834.00 and an annual salary
of GH¢46,080.00.
I think the proposed salaries
were those determined by the
consultant referred to above.
And the Ministry responsible for
the Programme had no objection
thereto.
The Plaintiff continued that the
Ministry of Finance had as at
April 2008 when his appointment
was terminated not been paid the
salary as determined by the
consultant. He also said the
Minister of Finance did not
write indicating his rejection
of the proposals in Exhibit
‘C’. The exhibit was written on
7th February 2008.
As at the time his appointment
was terminated in April 2008 he
had not been paid the salary as
stated in Schedule three (the
proposed remuneration) attached
to Exhibit ‘C’.
By not objecting to the salary
as proposed in the schedule, I
conclude that for the
responsible ministry the
remuneration of the Plaintiff
had been fixed at GH¢3,834.00.
The Plaintiff’s appointment was
terminated in April 2008. A
report of an audit into the
accounts of the GSFP National
Secretariat for the period 1st
April 2006 to December 2007 was
tendered in evidence as Exhibit
‘E’.
With all the evidence available
to the auditors, the report on
‘outstanding salary’ at
paragraph 133 page 33 of the
exhibit states:
“Outstanding Salary
133….. Our review disclosed that
for the 43 months (October 2004
to April 2008) that the former
Executive Chairman……worked as
head of GSFP, he was not paid
any salary even though the
Ministry of Local Government,
Rural Development and
Environment fixed his Salary at
GH¢3,840.00 per month……..”
From the evidence available, I
conclude that the salary fixed
for the Plaintiff was
GH¢3,840.00 a month.
The Plaintiff said
his appointment as the Executive
Chairman of the GSFP was
terminated by letter dated 22nd
April 2008. It was to take
immediate effect. The Plaintiff
tendered it in evidence as
Exhibit ‘A’. He said as at the
time of his termination he had
not been paid the salary as
contained in Exhibits ‘C’ and
‘E’.
It is the case of the
Plaintiff that since his
termination all efforts to get
his outstanding remuneration for
the period he worked have been
unsuccessful. He said he
complained to the Commission on
Human Rights and Administrative
Justice and the Fair Wages and
Salaries Commission but the
issue could not be resolved.
It appears that CHRAJ
wrote to the Ministry of Local
Government for its reaction to
the complaint by the Plaintiff.
The Ministry responded thereto
by letter dated 9th
March 2010 tendered by the
Plaintiff as Exhibit ‘F’. It
was signed by the Chief Director
on behalf of the Minister. The
exhibit raised issues about the
appointment of the Plaintiff;
the non approval of the
allowance of GH¢1,000.00 a month
and the fact that the Ministry
of Finance did not approve the
remuneration as recommended by
the then Ministry of Local
Government and Rural
Development. The Chief Director
finally suggested that since the
Plaintiff’s immediate successor
was paid a monthly salary of
GH¢2,000.00 per month he
(Plaintiff) should be paid the
same amount.
In his reaction to
the suggestion by the Chief
Director the Plaintiff said his
immediate predecessor was a
Coordinator and not an Executive
Chairman. Further, it was he,
Plaintiff who started the
programme by travelling around
the country to set up the
structures. It seems to me also
that the experience of the
Plaintiff was not considered by
the Director in making the
suggestion. In any case, given
the determination by the
consultant and the suggestion by
the Director, I would prefer the
former’s figures as they look
more scientific than the
latter’s. In any case, there is
no evidence before me that the
sum of GH¢2,000.00 was arrived
at the any consultant.
Exhibit ‘F’ was
written to the Commissioner of
CHRAJ. By another letter dated
18th May 2010 and
signed by the same Chief
Director of the Ministry of
Local Government and Rural
Development he conveyed to the
Commissioner of CHRAJ that the
Ministry had decided that the
Plaintiff be paid additional
GH¢500.00 per month for the
period February 2006 to April
2008. Thus for no reason the
offer of GH¢2,000.00 in Exhibit
‘F’ had been withdrawn. The
Defendant could not offer any
reason for the offer of five
hundred Ghana cedis. Thus in
all the Plaintiff would be paid
One thousand five hundred cedis
a month if the allowance of
GH¢1,000.00 per month is taken
into account. The Defendant as
noted above did not testify and
could therefore not offer any
justification for the payment of
GH¢500.00 instead of GH¢2,000.00
as earlier suggested.
Subsequently, a
cheque for the sum of GH¢13,500.00
was paid to the Plaintiff
through CHRAJ. The amount was
stated to be the “total salary
due Dr. Amoako Tuffour.” There
is no evidence on record that
this amount was agreed between
the parties. For his part the
Plaintiff said he accepted the
money:
“to prove that they as
government workers cannot just
pay…………any money. It was to
prove that I was indeed employed
and that I deserve whatever the
Auditor-General had said.”
In this case the Defendant did
not lead any evidence that the
GH¢500.00 per month was the
total salary due the Plaintiff.
From Exhibit ‘G’ it was the
“total salary”. The Plaintiff
denied same and said he accepted
the sum just to confirm that he
was in fact employed by the
government. The issue then is
whether or not the payment of
the GH¢500.00 per month not as
his total salary for the period
he worked as the Executive
Chairman of the GSFP but just to
show that he was indeed employed
by the Government.
In fact to demonstrate that he
was not satisfied with the
payment at CHRAJ the Plaintiff
headed for the Fair Wages and
Salaries Commission in August
2010. He tendered in evidence
Exhibit ‘H’, a letter to the
Chief Executive of the
Commission wherein all the
necessary details of his case
were stated. He prayed the
Commission to study his case and
use its mandate to ensure that
he was treated fairly by the
payment of the amount claimed to
him. It appears the Plaintiff
could not wait for a
determination of his case by the
Commission as on 11th
February 2011 filed the Writ
herein.
On the totality of the evidence
on record, I conclude that the
Plaintiff has led sufficient
evidence in proof of his
claims. Accordingly, if it
adjudged that the Plaintiff doth
recover the sum of GH¢133,862.00
being salary arrears owed the
Plaintiff from October 2004 to
April 2008 when he served as the
Executive Chairman of the Ghana
School Feeding Programme. It is
ordered that the said sum be
paid with interest at the
statutory rate from 1st
May 2008 till the date of final
payment.
The Plaintiff also claims
damages for wrongful dismissal.
The law is that in a claim for
wrongful dismissal the Plaintiff
must prove the terms of his
employment and then prove that
his dismissal was in breach of
those terms or that it
contravened some statutory
provisions for the time being
regulating employment: See
Morgan and Ors Vrs. Parkinson
Howard Ltd [1961] GLR 68. In
the instant case the Plaintiff
on his own showing was not given
any formal letter appointing him
to his office as the Executive
Chairman of the GSFP. He could
therefore not prove the terms of
his employment.
I accordingly find that the
Plaintiff was unable to prove
that his termination was
wrongful. Even in the absence
of proving the terms of his
employment the Plaintiff could
still have gone ahead to prove
that his termination was not in
accord with statutory provisions
for the time being regulating
employment, for example, the
Labour Act. The Plaintiff led
no such evidence. I accordingly
conclude that the Plaintiff has
not been able to prove that his
termination was wrongful and for
which he was entitled to
damages. The claim for damages
for wrongful dismissal is
dismissed.
I award Plaintiff costs of Six
Thousand Ghana Cedis (GH¢6,000.00).
(sgd.)
K. A. OFORI ATTA
JUSTICE
OF THE HIGH COURT
fk@
29/5/2012 12:57:05 PM
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