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JUDGMENT:
The facts as shown by the
statement of claim filed on 23rd
November 2009 are that plaintiff
since 1974 had worked for the 1st
defendant – Ghana Education
Service [G.E.S], as a teacher
and from 1986 as an Accountant
until his appointment was
terminated in December 2006.
He has alleged that, he has been
a diligent and efficient worker
and in 20th October,
2000, he was posted to Odumase –
Krobo District, Education office
as the substantive Accountant
and that he worked under MR M.
K. Otiboe, who was the District
Director of Education.
Furthermore, he
alleged whiles there a team of
Internal Auditors headed by one
Victor Owusu, conducted an audit
inspection for the period 2001
to May 2003, and a shortfall of
¢30million was found unaccounted
for, and that the District
Director admitted he had
instructed that the payments
leading to the shortfall be
made.
Plaintiff further alleged that,
donations, honorarium to
officers who visited the
District on official assignment,
form the amount which was found
as the shortfall, and that he
had recorded these in a small
note-book and on a sheet of
paper.
He averred that one Victor Owusu
who led the audit team is aware
of what had transpired in
respect of the amount in
question.
In continuation,
plaintiff averred also that, the
audit report was not released
until 16th December,
2006, by which time MR M. K.
Otiboe, had retired, and that he
had not seen a copy of the
report till date as well as the
comments of MR Otiboe on it.
And that he suspected MR Otiboe
and Victor Owusu of complicity
and connivance to implicate him.
In addition he
averred that he was interdicted
by the Regional Director of
Education, and requested to
refund the shortfall, but he was
neither invited to appear before
any disciplinary committee or
committee of enquiry. He stated
he was not written to by way of
a query to enable him answer the
charges of misappropriation of
funds.
On these facts, it
is plaintiff’s case that, his
interdiction was unlawful as it
contravenes, ART 23 G (iv) of
the Scheme and Conditions of
Service of non – teaching staff
of Ghana Education Service
[G.E.S] and that he made a
refund of the money under
duress.
Allegations of recall to duty
and posting to Regional
Education office, Koforidua,
were made and that, he had
worked for two (2) years at the
Regional office then, one day he
received a letter dated 15th
November, 2006, with reference
No. DG 051/11/84, signed by the
Acting Director General, of
Ghana Education Service [G.E.S],
terminating his appointment for
misappropriation of funds.
He alleged his termination is
unlawful because ART 23, E (i)
and (ii) of the Scheme and
Conditions of service of
non-teaching staff of Ghana
Education Service [G.E.S] has
not been followed, and that his
termination constitute a breach
of the rules of natural justice.
In paragraph 26 this
is what he averred:
“Plaintiff on the account of the
foregoing will contend that
having failed to give him any
query to reply to, nor call him
before any committee of enquiry
to answer to any charges in
accordance with the terms and
conditions of 1st
defendant’s service, the conduct
of 1st defendant is
wrongful, unfair and same in
unlawful.”
Besides, the above,
plaintiff in a reply joined
issues with the defence in the
statement of defence filed and
averments that plaintiff will
produce the sheet of paper on
which he made the records at the
trial; and the averment that the
note-book has been taken away
from him by MR Otiboe have all
been made.
It is based on these
facts that, plaintiff is seeking
a declaration that his
termination is wrongful, unfair
and unlawful, that it constitute
a breach of the rules of natural
justice and the constitution of
Ghana.
An order of payment of arrears
of salary, allowances and
interest on it, as well as
re-instatement.
On the other hand,
the defendants denied almost
every material assertion made by
plaintiff. It was averred that
plaintiff admitted
responsibility for the shortfall
of ¢30 million during the
discussion of the Interim Audit
report and pledged to settle it,
and that whether M. K. Otiboe,
the then district Director was
on retirement before the final
report was submitted, made no
difference.
It was also averred
that plaintiff cannot claim
ignorance of any report as he
was informed of issues relating
to both the interim and final
report. And that the final
Audit Report was not addressed
to M. K. Otiboe, who was on
retirement. It was averred that
the final report has in it
definite findings in respect of
issues on which questions were
already raised and resolved,
during the discussion of the
Interim Report.
Furthermore, in
respect of recall of plaintiff
and disciplinary procedures
which plaintiff alleged were not
followed, in paragraph 16, 17,
18, 19 20 and 21, averments in
denial of what plaintiff has
stated were made, it was said
that, the repayment of
¢30million was not the end of
the issue raised against
plaintiff by Ghana Education
Service [G.E.S] and that his
interdiction was to ensure that
investigation is done, and that
it does not amount to
punishment. It was alleged
Disciplinary Committee hearing
is only done after interdiction,
and that,
“…….officers who were ordered to
go on interdiction were not
obliged to be invited to appear
before any disciplinary
committee.”
In paragraphs 22, 23, 24, 25, 26
and 27, it was averred plaintiff
had ample opportunity to
confront his accusers, the audit
exercise itself was cited, the
Exit Conference was mentioned,
as well as what was termed the
discussion of the interim report
stage or level, were all given
as the opportunities to
plaintiff.
In addition the
averment in paragraphs 28, 29
and 30 are relevant. In
paragraph 28 the defendant
averred:
“The defendants admit
paragraph 22 of the statement of
claim and says that his recall
was only in conformity with a
departmental regulation that
interdiction should not go
beyond 6 months at any
instance. The recall did not
mean that disciplinary action
could not be taken against him.”
In paragraph 22 of the statement
of claim, this is what plaintiff
said, which has been admitted:
“Having worked for 2 two years
after his recall, plaintiff was
served with a termination letter
dated 15th November,
2006, Ref: DG 051/11/84 signed
by the Acting Director General
ostensibly on the advice of the
Ghana Education Council
purportedly terminating his
appointment for misappropriating
¢30.175.739.00 which amount he
was made to refund without
offering plaintiff an
opportunity of submitting
representations through his
immediate Head of the Acting
Director General for
consideration as stipulated
particularly in ARTICLE 23 E (i)
and (ii) of the Scheme of
Conditions of service for
non-teaching staff of Ghana
Education Service [G.E.S]”
The above is what
the defence has admitted as
shown by paragraph 28 quoted
supra.
In paragraph 29 of the defence
continued to emphasis the fact
that they have admitted
paragraph 22 of the statement of
claim, just like paragraph 28,
this is what the defence
averred:
“Still in further admission of
paragraph 22 the defendant say
that Ghana Education Service
[G.E.S] Council, the highest
disciplinary body in the Ghana
Education Service [G.E.S] after
reviewing the case of the
plaintiff in relation to how he
could not account for the money
entrusted to his care instructed
the Director General to
terminate his appointment.”
Paragraph 30 of the
defence also contain the
admission that the defendants
made of paragraph 22 of the
statement of claim, it reads:
“And still further admission of
paragraph 22 the defendants say
the plaintiff was summarily
dismissed, because of his
self –confession since after
self – confession there was no
need requesting him to submit
the same representation through
his head of Department, the
District Director, before whom
he had already confessed or
putting him before a
disciplinary committee again.”
The concluding parts
of the statement of defence
showed averments to the effect
that, plaintiff was fairly
treated and that his recall from
interdiction was purely
administrative, and also that
his dismissal was just, fair and
proper.
The under listed are
the triable issues when
Direction was taken:
1 (a) Whether or not the
termination of the plaintiff’s
appointment was fair, lawful or
wrongful.
(b) Whether or not the
plaintiff made any confession
before the inspection team in
respect of the shortfall.
(c) Whether or not the
inspection team made any adverse
findings against plaintiff.
(d) Whether or not the
plaintiff was confronted with
the said findings, if any
(e) Whether or not the
plaintiff was offered an
opportunity to respond to issues
raised by the inspection team.
(f) Whether or not the
plaintiff was given a hearing.
(g) Whether or not
disciplinary action was taken
against plaintiff after his
reinstatement and or recall from
interdiction.
(h) Whether or not the
Ghana Education Service [G.E.S]
Counsel can purport to take
another disciplinary action
against plaintiff two years
after his recall from
interdiction.
Issues 1 (b) – (h)
on the Direction touched on the
work of the audit team, its
findings, the opportunity to be
heard and the nature of
disciplinary procedures that
were followed, leading to the
termination of plaintiff’s
appointment, these are matters
that must be examined before a
decision is made.
Therefore, Issue 1 (a) on the
Direction, dealing with whether
or not the termination of
plaintiff’s appointment was
fair, lawful or wrongful, is so
fundamental and must be
considered first.
Plaintiff’s evidence showed that
he was appointed into Ghana
Education Service [G.E.S] in
1974 as a teacher, and converted
to a non-teaching staff in 1986,
and having worked at various
stations he was posted to
Odumase – Krobo District
Education office as an
Accountant in October 2000. And
EXHIBIT “C” and “D” confirm
these in material particular.
He testified to the
effect that, Madam Afo Blay and
MR M. K. Otiboe were Regional
and District Directors
respectively, when he was
working at Odumase. He also
mentioned MR Victor Owusu, (DW1)
as the head of the audit team
that came on audit inspection at
the District Directorate.
It could be gleaned
from the record that, plaintiff
spoke about ¢30,400,000.00
shortfall, which he explained
went into the payment of
transportation and other
allowances.
He also asserted he was ordered
or instructed by the Regional
Director to organize some
get–together for staff to boost
their moral, and acting in
conjunction with the Internal
Auditor Eric Amuzu the
party was organized.
His evidence showed that, there
was no subvention for the
purpose, but the expenditure was
made, he complained proper
handing over was not made when
M. K. Otiboe took over, as the
expenditure remained on the
books. The repairs of broken
down vehicles for the
Directorate was cited by him as
one of the headings of
expenditure made.
Furthermore, he
stated under Otiboe more
expenditure was made. This is
what he said:
“Again the time the District
Director, MR Otiboe took over he
ordered me to make some payments
at the office. Those payments
were at times, I will say they
were not official payments at
the office ….”
He even said funeral donations
were made, when a Director
General lost his father. These
and more he stated were recorded
in a note-book and payment
vouchers were not raised to
cover them.
Still of the
¢30million shortfall having
enumerated the items or headings
of expenditure that constitute
the amount, he alleged M. K.
Otiboe accepted responsibility
for it, when all these were
detected by the Auditors, and a
discussion was held on the
issue. Then later on M. K.
Otoboe retired.
Further still, he
said in December 2003, he was
served with an interdiction
letter, by MR D. O. Tetteh. He
said the interdiction letter is
unavailable now, because it is
lost, but he has not been given
the opportunity to read and
know, what was in the audit
report.
It is his case that from
December 2003 till April 2004,
he was on interdiction and when
he was told if he refunded the
money a decision will be taken
on his case he did exactly that,
by refunding or paying the
¢30million in August 2004.
Plaintiff also
testified about the
circumstances leading to his
re-call from interdiction. He
tendered EXHIBIT “A” dated 1st
October, 2004, and signed by,
Ewura Abena Ahwo (MRS), then
Regional Director, Eastern
Region.
The exhibit reads in part as
follows:
“Following the settlement of the
issues that led to your
interdiction, you are being
recalled to resume duty with
effect from September 1, 2004.”
The next line of
accounts given by plaintiff is
how his appointment was
terminated. He followed that
with assertions and exhibits,
which plaintiff claimed, point
to the fact that the termination
of his appointment is unlawful.
In detail, the record showed
that from October, 2003, to
December 2006, plaintiff had
been recalled, and he had worked
at the Regional office as an
Accountant.
He tendered EXHIBIT “B”, dated
12th December, 2006
and entitled: Termination of
Appointment MR E. OFORI ADU.
There is also EXHIBIT “B” dated
15th November, 2004,
entitled: “TERMINATION OF
APPOINTMENT” it has been
signed by MR M. K. NSOWAH the
Acting, Director General. The
opening paragraph of EXHIBIT
“B”, is crucial and it is
reproduced:
“A special audit of financial
transactions at the Manya Krobo
District Office disclosed a
number of irregularities. You
misappropriated ¢30,175,739,
which amount you were made to
refund.”
It is plaintiff’s
case he was not given the
opportunity to state his side of
the case, and he wrote a
petition in that regard but it
was not considered, and
therefore he has not been
treated fairly.
He also tendered EXHIBIT “E”,
which is part of, the Scheme and
Conditions of service, showing
ART 23 on DISCIPLINARY ACTION.
The exhibit –
EXHIBIT “E” stated supra, and
ART 23 on disciplinary action,
which plaintiff has asserted
that defendant has violated, is
the very averment in paragraph
22 of the statement of claim,
the defence has admitted as
demonstrated in paragraphs 28,
29 and 30 of the statement of
defence quoted supra.
The consequences of this of this
unequivocal admission, shall be
stated in the assessment of the
whole evidence on issue 1 (a) on
the Direction.
There are about
eight or so material assertions
raised by the defence, in them,
one could find the line of
defence of the defendant.
Firstly, it was denied that the
District Director – MR M. K.
Otiboe, accepted responsibility
for the ¢30million shortfall as
alleged by plaintiff.
It follows that plaintiff must
adduce sufficient evidence so
that the court can hold that,
that was the case. His
assertion has been denied.
Plaintiff neither tendered the
sheet of paper nor the
note-book. In respect of the
note-book, the record showed
that plaintiff alleged M. K.
Otiboe had collected it from him
sometime after the shortfall was
discovered by the auditors. His
reason for giving the note-book
to him, he said is that he is
the spending officer, and so at
the discussion held, he
requested for it and he gave it
to him.
When it was put to plaintiff
that he failed to produce the
note-book and by that, has
failed to establish his
assertion in that regard, his
response was that, the note-book
was their official recording
book at the time.
Secondly, it is the
case of the defence that if,
plaintiff has alleged he was not
given a hearing at various
levels, that cannot be correct,
because the EXIT CONFERENCE,
held after the audit constitute
a hearing of his version of what
had transpired.
On this, the record
showed that, plaintiff has
accepted the fact that there was
a discussion which was
preliminary where finding were
revealed and another discussion
took place on 6th May
2003.
Thirdly, it is the
case of the defence that, the
refund that plaintiff made, was
not a punishment meted out to
him because, he had refunded
what was not his.
The defence from the above,
sought to show that, plaintiff’s
conduct was punishable and the
refund was not the sanction, and
therefore, the refund cannot be
good reason for plaintiff to
assert that he has not been
treated fairly.
The response from
the plaintiff is to the effect
that, he made the refund because
of circumstances he had
described. These circumstances
from the record are the
accusations he made against the
Regional Director – Afo-Blay and
his District Director M. K.
Otiboe, as captured above
already.
Plaintiff is required to show
that he carried out instructions
and orders, which by his
training and experience can
legitimately be done by Ghana
Education Service [G.E.S] –
Accountant, given the
regulations that govern his
work.
I must observe that
no public servant is under an
obligation to obey illegal
instructions from his superiors
and colleagues.
The fourth material
contention, which the defence
has raised, and which is offered
to show that he has been dealt
with fairly, is that, the
termination of his appointment
is the appropriate punishment
for his conduct, and therefore,
it does not constitute, double
jeopardy.
Furthermore, it was
asserted that the interdiction
was administrative measure only,
and on that G.E.S is not bound
to give him a hearing at that
level. And the recall does not
mean, no disciplinary action
could follow.
The responses of
plaintiff are that, firstly, the
refund to him was punishment,
and the procedure to follow
after his interdiction was not
followed, and that by the rules,
he is entitled to a hearing.
He also insisted that, by
EXHIBIT “B” and “B1”, the issue
over the shortfall had been
settled, and that he had been
re-instated and for two (2)
years he had worked for the
defendant.
This question and
answer that relate to the reason
and justification for
termination of his appointment
was also put:
Q: And as clearly stated
by the termination letter,
EXHIBIT “B1” expressly stated
the reason for the termination
of your appointment not the
refund you made.
A: My Lord, I do not
agree.
This EXHIBIT “B1”,
has been quoted in part already,
but for purposes of emphasis and
clarity, the result of the
special audit, Ghana Education
Service [G.E.S]– Headquarters
conducted and the discovery of
¢30,175,739.00 shortfall, was
cited in the termination letter
as the reason for the decision
taken by Ghana Education Service
[G.E.S].
When the defence had
the chance to state its case, by
way of evidence-in-chief, these
are the essential and relevant
parts of what was said by DW1,
Henry Victor Owusu.
He testified to the
effect that he led the audit
team of Odumase – Krobo
District, and that they
commenced their task with an
initial conference with key
personnel at the District
Directorate. He mentioned M. K.
Otiboe, the District Director,
District Accountant, MR Emmanuel
Ofori Adu (plaintiff), the
District Finance Officer, Store
Keeper, and some activity
coordinators at the District.
His evidence showed this
conference was to announce their
reason for the audit and to seek
co-operation of all key
personnel.
The record showed
that on completion of the audit,
some findings were made, and
these were made known in an EXIT
conference.
On the finding his testimony
showed that ¢30,175,739.00, old
Ghana cedis was unaccounted for,
which comprises Duty allowances,
which should have been paid to
teachers deserving of it, but
which were not paid.
Medical bill refund were not
paid, as the names of deserving
teachers were seen but they did
not sign for the amount
allocated for the purpose.
He also delivered himself as
follows:
“… then after balancing the card
we have cash on hand in various
accounts which the Accountant
should declare for verification
and that he could also not
declare that. Some activity
co-ordinators performed some
activities, and refunded some
money to him. He receipted the
money in the receipt book but
the money could not be accounted
for. So we totalled all of
them, it amounted to
¢30,175,739.00 old Ghana cedis.
At the EXIT conference we said
this to the management team
there.”
In addition, he
testified to the effect that, at
the EXIT conference the District
Director – MR Otiboe expressed
surprise at the findings. And
that at the conference,
plaintiff could not explain
issues raised. And so a report
was issued on the findings to
the District Director who was
the spending officer.
He also stated categorically
that, plaintiff accepted
responsibility for the
shortfall.
Besides, he asserted that,
payments made, did not follow
Ghana Education Service [G.E.S]
procedures, and that plaintiff
whose rank was Deputy Chief
Accountant knew it, or ought to
have known.
His evidence showed that some
payments were not supported by
payment vouchers and these types
of payments are not recognized
as legitimate payment in Ghana
Education Service [G.E.S] i.e. L
I 18/02 Financial Regulation.
Furthermore, it is
the case of the defence that,
plaintiff was interdicted
through his District Director,
as required by Ghana Education
Service [G.E.S] procedures, but
he neither tendered the
interdiction letter nor the
audit report. As will be seen
later, plaintiff was at pains to
show that to date he has not
seen the audit report.
Victor Owusu
tendered EXHIBIT “1” which is
Financial and Accounting
Instructions for Secondary
Schools, Training Colleges and
Educational units.
The court has perused the rules
contained therein, and they are
relevant and support in material
particular the assertion the
witness made that, plaintiff
acted in ways not in conformity
with the rules of engagement of
his office, and in Ghana
Education Service [G.E.S].
Apart from his work
as the leader of the audit team
that investigated and found the
discrepancies at that Odumase –
Krobo District Directorate, his
testimony included the work of a
Special Audit team, that
Headquarters sent to Odumase
Krobo and selected Districts
nationwide.
He alleged the Special Audit
team found the discrepancies,
they had discovered earlier and
at a time when refund had not
been made.
In continuation this
is what he said about, what
followed the Special Audit:
“So when it went to the Director
General it was there and then
that he wrote this termination
letter. Because they wrote to
all those people who were
involved in the embezzlement to
appear before the Education
Council and Mr. Ofori Adu did
not turn up to explain himself
and therefore after that the
Director General wrote this
termination letter to Ofori
Adu.”
Before examining
how, DW1’s testimony was tested
in cross-examination what is
incontrovertible about his
evidence is that, there was a
Special Audit carried out on the
direction of the Director
General.
Henry Victor Owusu –
DW1, was taken on, on the work
of the audit team he led. It
was put to him that, instead of
a month within which the final
audit report should have been
released it to took him (7)
seven months to do so, because
of a contrivance hatched between
him and M. K. Otiboe to conceal
the report to implicate him.
However, DW1, denied this,
indeed, he said he could not
state precisely when the report
was released even though,
plaintiff stated it was in
December 2003, whiles the audit
had been completed May 2003.
Apart from the accusation of
concealment of the report, it
was said it was done such that
M. K. Otiboe had retired before
it was released. DW1 could not
state clearly when Otiboe
retired nor when a response was
given to the audit report from
the District Directorate in
Odumase Krobo.
These answers and
others on the release of the
audit report and steps taken to
get plaintiff’s reaction to it,
were not convincing enough.
When he was
confronted with the fact that
the District Director (or
Directorate) never gave a copy
of the audit or query that were
raised against plaintiff, so
that he could respond, DW1,
stated he wouldn’t know as he
does not work at the District.
But when it was put further to
him that plaintiff did not see
the report and any query raised
on it, DW1 stated that was not
true, he could not tell when M.
K. Otiboe – the District
Director, retired, he explained
that, those issues are
managerial issues.
On the bigger
issue of the interdiction itself,
when it was put to DW1, that it
was not fairly done as plaintiff
was never given a hearing or an
opportunity to explain what
happened, DW1, stated it is a
managerial issue and that they
will not allow plaintiff to
write any letter to explain his
interdiction.
But DW1, admitted that, with
what is contained EXHIBIT “A”,
which is a letter recalling
plaintiff to work, the issues
that led to his interdiction has
been resolved.
The defence called
no other witness in addition to
DW1 – Victor Owusu, he has
admitted, as in page 9 of
cross-examination of him on 18th
January, 2011, that, with
EXHIBIT “A” from the Regional
Directorate, the issue of his
interdiction has been resolved.
In the case:
In Re
Asere Stool Affairs (2005 –
2006) SCGLR 637, it was stated
where an adversary has admitted
a fact advantageous to the cause
of a party, the party does not
need any better evidence to
establish that fact than by
relying on such admission.
Following from
above, this case will be won or
lost on the work of the Special
Audit team and how its findings
were treated.
In other words, the procedures
followed after the audit
findings, leading to the
decision to terminate
plaintiff’s appointment, are the
relevant matters.
Firstly, the Special
Audit as further investigation
was not questioned by plaintiff,
and I hold that, Ghana Education
Service [G.E.S].– Headquarters
has power, given the complaints,
it has received to order
investigation or further
investigation into activities of
any officer(s), Unit, Department
or Directorate of the service.
Plaintiff’s
contention and the assertion
that he was not treated fairly
is based on the fact that, he
was never invited to the Ghana
Education Service [G.E.S] –
Council hearing which allegedly
followed the Special Audit.
These are a few
questions on this primary fact:
Q: I am suggesting to you
that plaintiff never received
any invitation to appear before
the Ghana Education Council.
A: My Lord, if they want
people to appear before Ghana
Education Service [G.E.S]
Council, they will write to the
person individually to appear
that is what the system is so if
he never appeared I cannot say
anything about it now.
Q: What I said was that
he did not receive invitation.
A: I would not know My
Lord.
Furthermore, EXHIBIT
“H” was tendered through, DW1,
this exhibit is a petition
written by plaintiff dated 22nd
January, 2007.
In paragraph 4, plaintiff wrote:
“It should be put on record that
when some Ghana Education
Service [G.E.S] officials were
called to appear before the
Special Audit Task Force in
Accra as a result of the Special
Audit Task Force Report, I was
not invited……”
It was therefore put to DW1,
that plaintiff had not been
invited to appear in Accra and
he refused and as a result his
appointment was terminated as he
had asserted.
The response in
rebuttal is that EXHIBIT “H” is
self serving – i.e. plaintiff
wrote those words on the sheet
of paper, but he also added that
he cannot tell the reason why
plaintiff’s appointment was
terminated.
He was questioned
further as a result:
Q: Therefore the reason
that you gave to the court that
it was a result of the Special
Audit Report and the subsequent
invitation that occasioned his
termination can never be true.
A: No, My Lord. The
Special Audit Task Force was
conducted at Manya Krobo and
then they wrote the report to
the Director General confirming
our findings and then they wrote
to all of them to appear before
Education Council. When they
appeared before the Education
Council, we went there but the
plaintiff was not there and the
Acting Director was on the panel
and then because the plaintiff
was not there, after the
exercise, a report came to the
Director General that the
plaintiff did not come to defend
himself and therefore, the
termination of the appointment.”
DW1, insisted plaintiff was not
seen and the Education Council
hearing hence his appointment
was terminated.
Thus DW1’s testimony was on the
procedures or steps that will
normally follow a special task
force from Headquarter, then he
stated he didn’t know why
plaintiff’s appointment was
terminated. And when probed
further, he gave answers part of
which have been reproduced to
the effect that he was at the
hearing in Accra, but plaintiff
did not show up, so his
appointment was terminated.
The burden of proof on this
primary fact of an invitation
having been sent to plaintiff to
appear before Ghana Education
Service [G.E.S] Council hearing,
which is the highest
disciplinary organ, but he
refused is a fact, which is
capable of positive proof. And
it is an assertion being made by
the defence as an integral part
of the reason for terminating
plaintiff’s appointment. This
fact when established will
bolster defendant’s reason for
the decision made to terminate
plaintiff’s appointment.
Thus the burden of
pursuasion has shifted on this
fact of invitation extended to
plaintiff, to the defendant to
prove same.
Plaintiff got his termination
letter in December 2006, and
wrote in January 2007
complaining that he has not been
given a hearing.
That letter – EXHIBIT “H” and
his denial of the invitation
ever being extended to him, has
created sufficient ground to
hold that the burden of
pursuasion has shifted to the
defence.
However, all that
the defence, had said on this is
as seen in the details of
answers DW1 gave whiles under
cross-examination.
The defence has to go further
than the contradictory answers
and subsequent assertions of
plaintiff not showing up, by
producing evidence of the
invitation, which has been
communicated to plaintiff.
When one party has
asserted that the other had
notice of a process or in this
case an invitation, it is proof
service, or evidence from which
it could be established that the
other party somehow got notice
of the invitation, process or
the information meant for him,
that will suffice.
The case of, COMMET CONSTRUCTION
VRS.
GCB
1971 GLR refers
The concluding part
of examination of defendants’
sole witness focused on matters
when proven, will not only
affect the credibility of DW1,
but also damage the case for
plaintiff as well.
Some of these issues were the
allegation that DW1 took
allowances from plaintiff when
it was underserved, solicited
and accepted financial
inducement to influence factors
that will make Manya Krobo
District quality to be ranked as
a READY DISTRICT, which will
facilitate higher allocations of
resources to it.
The amount of money
given, the date, time, how it
was given, for instance whether
it was signed for these details
were lacking.
If really somehow these monies
were given, then, it shows that
plaintiff has the penchant for
disregarding financial
regulations and has the
proclavity of applying or
misapplying Government
subvention and resources in
cohort with others, and turning
round to raise excuses which are
unbecoming of a professional in
the public service.
In EXHIBIT “D”, on
the conversion of plaintiff from
a teaching staff to a
non-teaching staff is found, in
paragraph 4, this provision.
“He is to note that his
progression hereafter shall be
in accordance with the Terms and
conditions laid down in the
Scheme of Service for Non –
Teaching personnel in the Ghana
Education Service.”
This letter is dated 1988, and
had been duly signed by the
Director General of Ghana
Education Service [G.E.S] at the
time.
Thus EXHIBIT “D” is as good as
an appointment letter of
plaintiff, making him an
employee of Ghana Education
Service [G.E.S]/defendant.
Then in EXHIBIT “E” and in
ARTICLE 23 “E” on termination of
Appointment, the Scheme and
Conditions of Service, of Ghana
Education Service [G.E.S]
provides:
“23 “E” (i) and (ii): An
employee may have his
appointment terminated provided
that he had been given one
calendar month’s notice or one
month’s pay in lieu of notice in
addition to any leave
entitlement due him.”
And (ii)
“The appointment of a confirmed
employee shall not be terminated
until he had been given an
opportunity of submitting
representations through his
immediate Head to the
Director General for
consideration.”
These provisions are
at the core of the employment
contract between the defendants
and the plaintiff, and the full
range of the provisions provides
for rights and duties which are
mutually obligatory and
enforceable.
Besides, the Labour
Act, Act 651/03, has made
provisions for the rights duties
and obligations of the employer
and the employee, sections 8, 9,
10 and 11 are particularly
relevant.
Furthermore, in sections 15, 16,
62 and 63 provisions have been
made on what may constitute FAIR
or UNFAIR TERMINATION, and the
appropriate remedies.
The findings of the
Special Task Force and
allegations of plaintiff’s
refusal to appear before the
Ghana Education Service [G.E.S]
Council, have been offered as
justification for the decision
to terminate his appointment as
in EXHIBIT “B” and “B1”.
The assertion that
plaintiff failed to account for
over ¢30million has been
proven. The two audit
investigations found that this
was the case. The explanations
given to the effect that, the
shortfall went into T.T
payment, funeral donations,
parties to boost moral and
honorarium, which payments were
authorized by Afo-Blay Regional
Director at the time and
District Director at the time,
M. K. Otiboe, have not been
proved by plaintiff.
He failed to produce either the
sheets he wrote on, or the
Note-Book, and laid the
unavailability of these, at the
door-step of a dead person (M.
K. Otiboe). He failed to call
Mr. Eric Azuma the District
Finance officer at Manya Krobo
at the time to confirm his
claims. That is a failure to
call a material witness.
If he had produced these records
in evidence, plaintiff will
still have to go over the hurdle
of the legal basis for not
recording disbursement of
Government funds on payment
vouchers, and for applying them
to activities which are
illegitimate.
In addition,
plaintiff will still have to go
through the hoops of the
legitimacy of disbursing
Government funds to influence
Government officials to give a
favourable categorization to
Manya Krobo District, and those
other purposes he applied the
monies to. Instead of paying
teachers whose names were on
payment vouchers their medical
bill refund and other
allowances.
On the preponderance
of the probabilities, the
defence has proved that
plaintiff failed to account for
the money in question.
Contrary to
averments in the pleading and
cross-examination to the effect
that he was dismissed,
plaintiff’s appointment was
rather terminated, as found in
EXHIBIT “B” and “B1”. It
follows that, the finding made,
do not constitute an infraction
for which an employee of Ghana
Education Service [G.E.S], could
be dismissed.
This being the case
has the defendant followed the
appropriate procedure in
terminating plaintiff’s
appointment?
Before stating the court’s
position on whether he had been
invited to the Ghana Education
Service [G.E.S] Council, hearing
below, is also what the Labour
Act provides in sections cited
supra, on termination of
employment contracts.
In section 15 of the
law, and under the heading
grounds for termination of
employment the law provides:
“A contract of employment may be
terminated:
(a)
by mutual agreement between
employer and the worker,
And subsection “E”, provides:
By the employer because of the
inability of the worker to carry
out his or her duty due to
(i)
sickness or accident; or
(ii)
the incompetence of the worker;
or
(iii)
proven misconduct of the
worker.”
On the aggregate of all the
testimony on the conduct of
plaintiff as the
Accountant in charge of Manya
Krobo District with the rank of
Deputy Accountant, plaintiff had
misconducted himself in respect
of the shortfall of ¢30million
found, even in the absence of
the relevant audit report.
The audit report is not a
material evidence, as
plaintiff’s case contain
assertions, and admission of how
this money was disbursed in
violation of the financial
Regulation of G.E.S, EXHIBIT “1”
refers.
The Labour law in sections 62
and 63 imposes a duty on the
courts to apply section 15,
along side the two sections
above, and to determine whether,
an employee who has committed
infractions of his contract of
employment has been treated
fairly after the wrong doing has
been established. That is the
concept of FAIR and UNFAIR
TERMINATION.
Section 63 subsection 4, which
is the relevant part provides:
“a termination may be unfair if
the employer fails to prove
that:
(a)
the reason for the termination
is FAIR, or, the termination WAS
MADE IN ACCORDANCE WITH A FAIR
PROCEDURE OR THIS ACT.”
And to surmise, in looking at
the contract of employment,
whether for a permanent employee
or an employee engaged for
specified period, an employer
who has terminated the contract,
must offer reasons and
explanations which are grounded
in the agreement that engaged
the employee and the law – i.e.
Act 651, and ensure that both
substantive and procedural
fairness has been observed.
I am aware, that the common law
right of the employer to fire an
employee for whatever reason is
still very much part of our
laws. But having taken the
decision, when sued in court,
the employer, is enjoined to
prove that substantive and
procedural fairness have been
observed.
In this case under examination,
the defendants Ghana Education
Service [G.E.S] and the Attorney
General, are under an obligation
to justify the termination of
plaintiff’s appointment. And
this they can only do by
offering evidence that showed
that, terms and conditions in
his letter of engagement or
appointment or his conversion
from a teaching staff to non –
teaching staff have been
observed.
That his conditions of service
as provided for in the, SCHEME
AND CONDITIONS OF SERVICE, as in
EXHIBIT “E” and especially
ARTICLE 23 “E” (i) and (ii) have
been followed.
That is how substantive and
procedural fairness can be
established.
The defendants, who
carried the burden of proof on
whether plaintiff has been
invited to the Ghana Education
Service [G.E.S] Council hearing
failed to prove that he was
invited and he REFUSED, to
attend.
It is not difficult to arrive at
this because of the way
pleadings were settled or
rendered on behalf of the
defendants. The defence in so
many paragraphs made admissions
of paragraph 22 of the statement
of claim. As pointed out
already, this paragraph 22 of
the pliant, contain reference to
ART 23 “E” (i) and (ii) on the
produce to follow, when a
decision to terminate is to be
made.
The defence in paragraphs 28,
29, and 30 have admitted in an
amazing fashion that they have
flouted ART 23 “E” (i) and (ii).
I have found and
hold that plaintiff was not
invited to the Ghana Education
Service [G.E.S] Council hearing,
and so he did not attend, and
that, he did not refuse to
appear as alleged by DW1.
I have also found that, there
has resulted, procedural
impropriety, that has affected
the decision taken by the
defence to terminate plaintiff’s
appointment.
On the preponderance of the
probabilities plaintiff has
established that in terms of
procedure, the termination of
his employment was unfair,
because EXHIBIT “E” and the law,
the Labour law, Act 651/03, were
flouted.
The findings made on issue 1 (a)
on the Direction has determined
also issue 1 “b” to “h”.
BY COURT:
1. The
defence flouted the contract of
employment of plaintiff, and
the
Labour law, in respect of the
procedure it followed when it
terminated plaintiff’s
appointment. Hence the
termination is
unlawful within the context of
the procedural impropriety
committed. Thus relief “a” is
upheld in part.
2. Reliefs
“b”, “c” and “d” are dismissed.
3. Plaintiff
is not entitled to
reinstatement.
4. This
court will award:
(a) Nominal compensation
as damages in favour of
plaintiff.
Plaintiff is awarded
one (1) year salary of a Deputy
Chief
Accountant in Ghana Education
Service (GES) to plaintiff.
That salary shall be the current
salary for the grade
stated above.
(b) The defence shall
co-operate with the plaintiff
and the
Registrar for the
computation to be done.
5. Cost of
GH¢2,000.00 is also awarded in
favour of plaintiff.
(SGD.) N. M. C. ABODAKPI
JUSTICE OF THE HIGH COURT
DENNIS OSEI HWERE FOR PLAINTIFF
– PRESENT
CLARENCE KUWORNU FOR DEFENDANTS
– ABSENT
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