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JUDGMENT
BROBBEY, J.S.C.:
The facts that gave rise to this
appeal are as follows; the
appellant, the Ghana Commercial
Bank, employed the complainant
for some twenty-one years. In
1984, his appointment was
terminated at a time when he was
a manager of the bank. The
reason for the termination was
that he had contravened the
regulations of the bank by
granting a loan facility of six
million and seven hundred
thousand Cedis to a customer of
the bank without prior approval
from its head office. In
addition to terminating the
appointment, the appellant
withheld the entitlements of the
complainant until such time that
the customer would pay the loan.
According to the complainant, he
granted the facility in the
normal course of business and
after he had satisfied himself
of the customer’s assets, the
purpose for the loan and the
viability of the customer’s
business; the loan was also
secured with assets of the
customer worth twenty -five
million Cedis.
Dissatisfied with the action
taken against him, the
complainant petitioned the
Commissioner for Human Rights
and Administrative Justice for
redress.
After investigating the
petition, the Commission decided
in favour of the complainant by
recommending that the appellant
paid the complainant some sums
of money. The appellant failed
to comply with the
recommendations of the
Commission. To enforce its
decision and recommendations,
the Commission then applied to
the High Court in the terms of
the 1992 Constitution, art. 216
and the Commission for Human
Rights and Administrative
Justice Act, 1993 (Act 456).
The application was made by
originating summons or
originating motion on notice and
was supported by an affidavit
together with the decision of
the Commission. The appellant
resisted the application by
filing an affidavit in
opposition. The court heard
arguments from the Commission
and the appellant, after which
it endorsed the decision of the
Commission. An order of
enforcement was then issued. The
appellant promptly appealed to
the Court of Appeal against the
decision of the High Court. The
Court of Appeal upheld the
decision of the High Court,
subject to some variations.
Dissatisfied with that decision,
the appellant appealed to this
court on the following four
grounds;
1. The judgment was not
supported by law and the
evidence adduced at the hearing.
2. The damages awarded by the
court cannot be justified in
law.
3. The trial court not having
seen and examined the evidence
adduced before the Commission,
erred in seeking to enforce a
ruling based on the evidence;
and lastly
4. The petition was statute
barred and the respondent should
not have entertained it.
In its submissions, the
appellant made a number of
points in support of the first
ground of appeal. One of the
points was that it was wrong for
the respondent, the High Court
and the Court of Appeal to have
concluded that the termination
of the respondent’s employment
was wrong because the reasons
for the termination were harsh,
unjust, unfair and
discriminatory. That point was
premised on the principle that
the appellant had no obligation
to have provided any reason for
terminating the appointment so
long as the procedure agreed by
the contract of employment was
complied with. Therefore the
reason for terminating the
employment was irrelevant and
could not be used for describing
it as harsh, unjust, unfair and
discriminatory. In support of
this principle, counsel for the
appellant cited Bannerman-Menson
v. Ghana Employers Association
[1996-97] SGLR 417, Bank of
Ghana v. Nyarko 1973 2 GLR 275,
CA and Aryee v. State
Construction Corporation 1984 1
GLR 424, CA.
There is no doubt that the
decisions in these cases were as
stated by counsel for the
appellant. Those decisions
however have to be considered in
the light of the statutory
powers given to CHRAJ. That
Commission was created by the
1992 Constitution, article 216.
The functions of the Commission
were set out in article 218 of
that Constitution and they
include the following;
“(a) to investigate complaints
of violations of fundamental
human rights and freedoms,
injustice, corruption, abuse of
power and unfair treatment of
any person by a public officer
in the exercise of his official
duties.
(b) ….
(c) to investigate complaints
concerning practices and actions
by persons, private enterprises
and other institutions where
those complaints allege
violations of fundamental human
rights and freedoms under this
Constitution.
(d) to take appropriate action
to call for the remedying,
correction and reversal of
instances specified in
paragraphs (a), (b) and (c) of
this clause through such means
as are fair, proper and
effective …”
The import of these provisions
is quite clear; It is simply
that the CHRAJ was set up to
investigate complaints of
particular types, namely
complaints on violations of
fundamental human rights. The
scope of the violations that it
can investigate has been
elaborated in Chapter five of
the Constitution. Their
investigations may cover
violations of human rights even
in private enterprises, such as
the Ghana Commercial Bank, the
appellant herein.
What has to be examined
critically is whether or not the
complaint that the complainant
made to the Commission was one
covered by the constitutional
provisions referred to, namely,
whether or not the complaint
raised violations of fundamental
human rights and freedoms. There
is no doubt that the complaint
raised issues on violation of
fundamental human rights in
relation to the complainant’s
right to work or his right to
fair pay for the work he had
done.
In the instant case, the
Commission approached the issues
raised by the complaint from the
point of view of violation of
fundamental human rights. On the
other hand, the appellant
approached solution to the
problems raised by the complaint
from the point of view of common
law and naturally relied on
common law principles enunciated
in previously decided cases.
The well-established principle
is that where the common law
conflicts with the terms of a
statute, the statute should
prevail. In the instant case, it
would appear that common law
principles enunciated in those
cases referred to by counsel
conflict with the specific
provisions in the Constitution
establishing the Commission and
giving it specific functions to
perform. It is obvious that the
provisions in the Constitution
should prevail over the common
law principles.
Considering the appeal on those
lines, the submissions of
counsel for the appellant did
not answer the basic issue posed
before the Commission, namely,
whether or not the complaint
raised violations of fundamental
human rights.
It was part of the case of the
complainant that he granted a
loan facility of six million,
seven hundred thousand Cedis.
That led to the appellant
terminating his appointment and
withholding his entitlements.
According to the complainant,
other managers had granted
similar facilities far in excess
of the amount he granted. Some
of the amounts granted were as
much as 36, 41, 57, 92, 180, 230
million Cedis. Nothing was done
to the managers who granted
those facilities. They were
allowed to continue working or
did not have their appointments
terminated. The complainant
contended that the termination
of his appointment for a much
smaller amount of six million
seven hundred thousand Cedis was
discriminatory. In its decision,
the Commission accepted that
argument. The High Court and the
Court of Appeal endorsed the
decision on that point. The
appellant forcefully argued that
the decision and the
endorsements were wrong; the
bases of that argument were that
the appellant bank had clear
rules to the effect that its
managers had a ceiling in
respect of the amount that could
be granted as loan facility.
Beyond the ceiling, no manager
was allowed to grant any
facility without express
authorization from its head
office. Any manager who breached
the regulations did so at his
own risk and was subject to
sanctions including the type
meted out to the complainant. To
the appellant, the breach of the
regulations by the complainant
was sufficient ground to
terminate his appointment.
It is apparent from the record
of appeal that the appellant did
not dispute the facts that those
heavier amounts were granted by
other managers and further that
the appointments of those
managers were not terminated. By
its silence on the two facts, it
became apparent that the
complainant had been treated
differently but more harshly
from other managers for much
less breach of the rules of the
appellant. By definition, a
person is said to have been
discriminated against where he
is treated differently on
grounds of race, color or
religion. Granting that there
are clear rules on the granting
of loans, the appellant should
have been able to explain to the
Commission or the High Court
why, in spite of the existence
of those clear rules, those
other managers who had committed
what prima facie amounted to
worse breaches of the rules were
not merely left off the hook but
were also allowed to continue
working as if what they did was
nothing at all. In the absence
of any explanation, the
Commission, the High Court and
the Court of Appeal were
obviously right in concluding
that the termination of the
appointment of the complainant
was indeed discriminatory.
If for any reason the appellant
was not sure whether or not the
termination amounted to
discrimination, the Constitution
contains provisions that clarify
the issue of discrimination. .
Article 17 reads as follows;
“ (1) All persons shall be
equal before the law.
(2) A person shall not be
discriminated against on grounds
of gender, race, color, ethnic
origin, religion, creed or
social or economic status.
For the purposes of this
article, “discriminate” means to
give different treatment to
different persons attributable
only or mainly to their
respective descriptions by race,
place of origin, political
opinion, color, gender,
occupation, religion or creed,
whereby persons of one
description are subjected to
disabilities or restrictions to
which persons of another
description are not made subject
or are granted privileges or
advantages which are not granted
to persons of another
description.”
When the fundamental law of the
land mandates that everyone is
equal before the law, the
appellant cannot operate a
system by which its employees
are not equal before the law. A
system by which there appears to
be different laws for different
employees or by which the laws
in the bank are applied
differently to different
employees is surely
discriminatory. It is no defense
to ague that the reason for the
different treatment has not been
proved. It is equally no defense
to argue that the rules of the
bank must be obeyed but the
complainant had not obeyed them
and therefore there was
justification in terminating his
appointment.
Where laws in an institution
like the appellant bank are
applied differently and
inconsistently, it is probable
that that inconsistency may lead
some employees to believe that
the laws may not always be
invoked or that the employee’s
actions may be exempted. That in
itself may be an inducement for
some employees not to strive to
obey the laws. When that
happens, the employer, like the
appellant herein, would have
created a situation for which it
has itself to blame.
The most fallacious argument was
the contention by counsel for
the appellant to the effect that
no matter how beneficial an
action may be, if it does not
comply with the rules or laid
done procedure, the action will
still be wrong. In support of
that counsel cited the case of
Tsatsu Tsikata v. The Attorney
General. That argument was based
on the wrong application of the
ratio decidendi of the case.
The principle relied upon came
out of the first decision that
was a five – four majority. When
the case went on review, the
argument was debunked in the six
five decision which reversed the
original decision. The authority
in that case did not support the
argument made on behalf of the
appellant.
The basic question at stake is
why the rules of the bank should
be applied differently from one
manager to another or why the
breach of the rules of the bank
should result in the termination
of one manager but the breach of
the same rule in worse
circumstances should attract
consequences totally different
from the termination meted out
to another manager. For that
different treatment, no answer
was given by the appellant.
The different treatment meted
given to the complainant for the
lesser breach of the appellant’s
rules constituted the essence of
the allegation of
discrimination.
On those facts, the termination
of the appointment of the
employment of the complainant
was discriminatory. Article 17
that deals with discrimination
is one of the provisions on
fundamental human rights under
the Constitution. The action of
the appellant in terminating the
appointment of the complainant
was in clear violation of that
article.
Since the Commission’s
jurisdiction over the complaint
is grounded on violations of
fundamental human rights, it is
only fair for it to seek
solution to the complaint upon
considerations of human rights
principles. This explains why
the Commission considered the
complaint on the bases of
violation of human rights and
not on common law principles.
Having found that that the
termination of the complainant’s
employment was unjust,
discriminatory and unfair, it
was right in concluding that
there had been violation of
fundamental human rights.
The decision of the Commission
on the complaint of
discrimination and its
endorsement by the High Court
and the Court of Appeal were
supported by the fundamental law
of the land, namely, the
Constitution, and the evidence
on the record. The attempt by
counsel for the appellant to
impugn that decision failed.
There was no merit in the first
ground of appeal and it should
therefore be dismissed.
In his submissions before this
court, counsel for the appellant
contended that where parties
have freely entered into a
contract in which they have
spelt out their rights and
liabilities, and one party
exercises his rights under the
contract by complying with a
term of the contract, that
compliance or exercise cannot be
described as unreasonable,
unfair or oppressive. The short
answer to this point is that if
the same act which amounts to an
exercise of contractual rights
gives rise to violation of
fundamental human rights, an
institution like the Commission
granted statutory authority to
investigate the violation or
otherwise of the act, may assume
jurisdiction to investigate the
violation as well.
The establishment of the
Commission therefore creates a
serious situation in Ghana and
seems effectively to affect
common law principles on
contracts, employments and many
other issues.
The second ground of appeal was
that
“The trial court not having seen
nor examined the evidence
adduced before the Commission,
erred in seeking to enforce a
ruling based on that evidence.”
When the recommendations made
after the investigations were
not enforced by the appellant
one year from the day they were
made, the Commission instituted
action in the High Court under
Act 456, s. 18(2) for the
enforcement of those
recommendations.
There are no special rules under
the Constitution or Act 456
specifying the method to be
adopted when the Commission
seeks to enforce its
recommendations. The Commission
took the action by originating
motion. As the Court of Appeal
concluded by reference to
People’s Popular Party v.
Attorney-General [1971] 1 GLR
138
“When a statute, in this case
the Constitution, provides for
an application to court without
specifying the form in which it
is to be made and the normal
rules of court do not expressly
provide any special procedure
such an application may be made
by originating motion”
On this authority, the use of
originating motion by the
Commission could not be faulted.
When the Commission went to
court on originating motion, it
was supported by affidavit and
the decision. The appellant
contested it by filing affidavit
in opposition.
Since originating motion is
determined by affidavit
evidence, if the judge to
determine it is satisfied with
that kind of evidence before him
or her, judgment may be given on
the basis of that evidence.
There are only two conditions
under which the investigation
proceedings may have to be laid
before the judge. The first is
where the judge herself
considers it necessary that the
investigation proceedings should
be produced before her.
The court does not need to order
the re-investigation of the
decision. This is because of the
proceedings are produced and it
is found that the decision on
recommendation is not supported
by the proceedings, the
application to enforce the
decision or recommendation will
fail and just has to be
dismissed. The onus is on the
commission seeking the
enforcement to ensure that what
is sought to be enforced is
supported by the investigation
proceedings. That is subject to
the discretion of the judge and
how the judge sees the issues in
the case. This may be considered
as subjective, but of course it
is subject to reasonable
assessment and evaluation of the
evidence before the judge. That
discretion may be exercised to
call for the proceedings only
where such course is, in the
opinion of the judge, necessary
in order to do substantial
justice to the parties. The
occasion when this criterion may
be said to exist to warrant such
action from the judge will
depend on the facts of each case
and will differ from case to
case.
The second occasion is where one
party, usually the defendant,
raises issues that can only be
resolved by re-examination of
the evidence before the
investigating body or by
production of the record of
proceedings before the
investigating body.
In effect, there can be no
categorical rule that whenever
the Commission seeks to enforce
its recommendation by
originating motion, the court
where the motion has been filed
has to call for the record of
proceedings of the
investigations culminating in
the recommendations. It all
depends on the circumstances of
the case, how the judge
considers the evidence before
him/her and the nature of
affidavit in opposition filed by
the defendant or respondent. The
onus is on the party who wishes
the production of the record to
file the relevant affidavit
which will raise such issues as
will convince the judge that the
only way that the judge can do
justice to the parties would be
to call for the investigation
proceedings.
In the instant case, the
Commission supported its action
before the High Court with a
copy of its decision following
the investigations as well as an
affidavit. In its defense, the
appellant was also enjoined to
file an affidavit in opposition
and that too was done. In the
latter affidavit, the appellant
did not raise any issue that
called for re-opening of the
investigations or production of
the investigation proceedings.
If any such issue was raised in
the affidavit in opposition that
would have called for a ruling
from the High Court Judge. It
was rather in the affidavit in
support of the summons that the
Commission deposed to the fact
that the complaint was
investigated by both written and
oral evidence from the parties.
That decision sent to the High
Court for enforcement was
obviously based on those
investigations. The appellant
must have been satisfied with
the deposition. That was why in
its affidavit in opposition and
in its arguments before the High
Court, it never raised any issue
requiring the production of the
investigation proceedings before
by the High Court.
If the appellant desired that
the proceedings should have been
laid before the High Court, it
should have raised that before
the High Court, and not after
the proceedings in the High
Court had been concluded.
Since the issue was not raised
in the High Court, if the judge
was satisfied with the summons,
the affidavits and arguments
before her, she was entitled to
deliver her judgment on them.
That was precisely what she did
and the appellant could not
complain much later that the
investigation proceedings should
have been laid before the judge
before making the enforcement
order. There was nothing in the
record to indicate that the
judge had difficulty in arriving
at her decision to order the
enforcement merely because the
investigating proceedings were
not before her.
The first time that the
appellant raised the issue of
production of the proceedings
was in the submissions filed on
its behalf. That was wrong
procedure because it was done
without seeking to file any
motion to adduce fresh evidence.
The point on re-opening the
investigations or production of
the proceedings before the trial
judge was consequently
untenable. There was no merit in
the third ground of appeal and
that too should be dismissed.
By far the most fundamental
ground of appeal was ground four
by which the appellant contended
that the entire claim of the
complainant before the
Commission was statute-barred.
The appellant’s argument in
support of that ground was based
on the provisions of the
Limitations Decree, 1973 (NRCD
54) and Act 456.
NRCD 54, s. 4 provides that no
action founded on tort or simple
contract shall be brought after
the expiration of six years.
In the instant case, the
complainant was dismissed in
1984. He lodged his complaint
with the Commission in 1993,
nine years later. It was argued
on behalf of the appellant that
in the terms of NRCD 54, the
action was barred after 1990 and
therefore the Commission should
not have acceded to investigate
the complaint.
On the other hand, the
Commissioner contended that the
Limitations Decree was not
applicable to investigations by
the Commission. The case of
CHRAJ v. Attorney General
[1998-99] SCGLR 871 was cited to
support that contention. That
case decided that the
Limitations Decree did not apply
to investigations by the
Commission because the
Commission is not a court.
A careful reading of that case
will reveal that the judgment
distinguished between the powers
and functions of the Commission
and the enforcement of its
decisions or recommendations.
From pages 882 to 885 of the
report on the case, the powers
and functions of the Commission
were discussed. The objects and
functions of the Commission were
rightly described as
investigative and educational.
As was stated at the beginning
of this opinion, the Commission
has been set up to investigate
violations of fundamental human
rights and freedoms, as per
Article 218 of the Constitution
and section 7 of Act 456. The
scope of the matters that the
Commission may investigate are
dilated in Chapter five of the
Constitution and the long title
of Act 456.
Those two provisions merely
confine the matters that the
Commission may investigate to
violations of fundamental human
rights. It is rare to talk of
violations in the future. In
this country, violations of
human rights occur before they
become an issue. History or the
timing of the violation is
therefore of significance. The
Constitution did not specify the
time within which the violations
may be started or concluded. It
would appear that the omission
was deliberate. Subject to the
provisions of the Constitution
there is no limit in terms of
time on how far the Commission
can go in respect of its
investigations. That means that
subject to the 1992 Constitution
the Commission can investigate
any matter that concerns
violations of human rights
irrespective of when the
violation took place. To that
extent, it can correctly be
stated that the functions of the
Commission, in so far that they
are investigative of violations
of fundamental human rights, are
not subject to the Limitations
Decree.
It is significant to emphasize
on the peculiar nature of the
particular investigative power
of the Commission, i.e. into
fundamental human rights. That
is the justification for taking
the powers and functions out of
the Decree. It is not the mere
fact of the general
investigative powers
simpliciter.
Another strong reason that
supports the non-applicability
of Decree to the investigative
functions of the Commission is
the fact that it is possible
that its investigations may
unearth the commission of a
criminal offence that may be
recommended for prosecution. It
is settled law that any criminal
offence can be prosecuted at any
time. Excepting express
provisions in a statute barring
prosecution, public policy
mandates that criminals be
prosecuted and punished whenever
they can be laid hands on but
should not be allowed to get
away with crimes by mere
effluxion of time. Public policy
therefore supports the view that
the Limitations Decree should
not apply to the investigative
functions of the Commission.
It has to be pointed out that
these arguments concern the
application of the Limitations
Decree only. As was stated in
Chraj v. Attorney-General
referred to above, Act 456, s.
13(2) contains built-in
limitations that constrain time
in respect of matters that the
Commission may investigate and
that provision is obviously
binding on the Commission.
Investigating violations of
fundamental human rights is one
thing, and enforcing the
decisions or recommendations of
the Commission is another matter
altogether. The Constitution
envisages that judicial powers
are essential in order to
enforce the decisions or
recommendations of the
Commission. That is why care has
been taken to ensure that
enforcement of the decision or
recommendation of the Commission
should be referred to the
courts. By article 125(3) of the
Constitution, judicial power in
the country has been vested in
the Judiciary. The Commission is
not part of the judiciary. Just
like the provisions in the
Constitution and those in Act
456, the case referred to
rightly makes it clear that the
Commission has no judicial
powers. For the purpose of
performing its functions, it has
some powers similar to those
exercised in the courts,
especially in article 219 of the
Constitution. Those powers
however do not constitute the
Commission into a court.
After making recommendations
based on its investigations,
what the Commission has been
empowered to do as stated in
article 229 is to
“ bring an action before any
court in Ghana and may seek any
remedy which may be available
from that court.”
There are similar provisions in
Act 456, section 18(2), save
that the section states that the
Commission
“ may seek such remedy as may be
appropriate for the enforcement
of the recommendations of the
Commission.”
When the Commission has made its
recommendation or taken its
decision that is not complied
with, the law requires the
Commission to refer the decision
or recommendation to the courts
for enforcement. When reference
is made to the court for
enforcement, the court is to
order the enforcement of the
decision within the framework of
laws it was set up to operate.
If nothing at all, this will
seem to be emphasized by the
Constitutional provision that
the Commissioner “may seek any
remedy available in that court.”
The remedy available in that
court must be remedy permissible
by the law, including statutory
law. If the remedy to be granted
goes contrary to law, it will
surely not be remedy available
in a court of law like the High
Court.
In the instant case, the cause
of action accrued in 1984. Under
section 4 of the Limitations
Decree, the complainant had six
years to institute action to
enforce his rights. He took
action by lodging the complaint
with the Commission in 1993,
nine clear years later.
Therefore, by the time he took
action on his complaint at the
Commission and the Commission
made its decision or
recommendation and referred it
to the High Court for
enforcement, section 4 of the
Decree had barred the
enforcement by the High Court.
The remedy barred by law could
not by any stretch of the
imagination or strength of
argument be described as remedy
available in a High Court of
Justice, like the High Court in
the instant case. The
enforcement of the instant
decision was not available in
any High Court. The High Court
therefore erred in ordering the
enforcement of the decision of
the Commission.
The courts have been established
to administer justice according
to law. Administering justice
according to law means according
to the laws of the land,
statutory and common law
inclusive. No court will
consciously order the
enforcement of any decision that
it knows to have infringed
aspects of the laws of the land.
That will be absurd and the
thought of it would be
inconceivable. It would only do
so where there are express
provisions of the law permitting
the infringement. In the instant
case, there are no express
provisions in the Constitution
or any other statute permitting
the infringement of the
Limitations Decree by the
courts.
It has already been explained
that when the decision of the
Commission was referred to the
court for enforcement, the
reference may not give rise to
automatic re-opening of the
decision or re-investigation. At
the same time, the reference
does not compel the court to
rubber stamp the enforcement. It
will at best call for the record
of the proceedings giving rise
to the decision only if it can
be demonstrated that that is
necessary to do justice to the
parties in the case. After
calling for the record, it is
not impossible for the court in
the interest of justice to
consider whether any aspect of
the decision was supported by
the investigation proceedings of
the case.
The possibility that the case
may be re-opened underscores the
fact that the court has no
obligation to blind itself to
flaws or legal infringements in
the decision or the
investigation that gave rise to
the decision. To argue that even
if the decision of the
Commission infringes the
Limitations Decree it should
nevertheless be enforced by the
court would not be different
from arguing that if the
decision of the Commission
amounts to a nullity or
illegality, it should
nevertheless be enforced because
it came from the Commission.
That argument cannot be right
and should not be countenanced.
One serious observation apparent
in this appeal is the language
that counsel for the appellant
used in conducting his case. On
some occasions, he referred to
the decision of the Commission
and its use of some authorities
as “fraudulent”. Fraud connotes
a crime and has very serious but
pejorative connotations. Counsel
should not have used that word
to describe what the Commission
did when all that he was trying
to put across was the fact that
he did not agree with the
actions or application of the
principle by the Commission. The
Commissioner protested in his
reply and there was every
justification for the protest.
The words chosen by counsel for
the appellant were not merely
inappropriate but were wrongly
used in those circumstances.
Nobody is perfect. Counsels make
one mistake or the other at
various times but if the mistake
does not import crime, it should
not be described as such. For
instance, counsel for the
appellant contended in his
submissions before this court
that the appellant in the High
Court challenged the findings of
the Commissioner. That was
totally wrong because the
affidavit filed on behalf of the
appellant to oppose the
originating summons never
deposed any where that the
appellant was challenging the
facts relied on in arriving at
the decision of the Commission.
Would the appellant’s counsel be
happy for his submissions to
have been described as
fraudulent merely because he
stated facts that were
inaccurate?
This legal profession is a noble
one and members should be more
discreet and circumspect in the
choice of words used to describe
actions of its members without
necessarily labeling ourselves
as criminals or frauds where
there is no justification for
that description.
In conclusion, the legal
position is that the Limitations
Decree, 1973 (NRCD 54) does not
apply to investigations
conducted by CHRAJ. Subject to
its built-in limitation in
section 13(2) of Act 456 that I
leave to my sister Wood JSC to
elaborate upon in her opinion,
and the provisions of the 1992
Constitution the Commission may
investigate any violation of
fundamental human rights
irrespective of when the
violation took place.
Where the decision or
recommendation following the
investigation is to be enforced,
the enforcement is to be taken
out of the Commission into the
court. The court is bound to
give effect to all the laws of
the land in seeking to order the
enforcement. If the enforcement
breaches any existing law, it
will not have to be ordered.
Since the trial judge had no
jurisdiction to have ordered the
enforcement of the decision
arising out of the
investigations that were barred
by the Limitations Decree, it
will serve no useful purpose to
consider the validity or
otherwise of the damages
awarded. In the light of the
decision on limitation, the
issue of the damages awarded
became otiose.
To the extent that the appellant
did not challenge the factual
basis of the Commission’s
decision and the High Court
judge was satisfied with the
evidence before her when the
case went to the High Court, the
judge had no obligation to have
ordered the production of the
proceedings leading to that
decision before considering her
judgment. Ground three of the
grounds of appeal consequently
failed and should be dismissed.
To the extent that the award
cannot be enforced in a court of
law because the Limitations
Decree barred it, ground four of
the grounds of appeal succeeds
and should be allowed.
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
S.A. BROBBEY
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C.:
I have had the privilege of
reading before hand the
judgments of my learned sister
Wood J.S.C. and my learned
brother Brobbey J.S.C. I agree
with their conclusions that this
appeal be allowed. I however
wish to add a few views of my
own.
The respondent was dismissed in
1984 by the appellant. His cause
of action therefore accrued as
at the year 1984. It was
governed by the law as it then
stood. The 1992 Constitution
came into force on the 7th day
of January, 1993.
It has constantly been held that
the Constitution of Ghana is not
retrospective. See
AWOONOR-WILLIAMS V. GBEDEMAH
(1969) 2 G & G 403 C.A., BENNEH
V. THE REPUBLIC (1974) 2 GLR 47
C.A. (Full Bench), SAM V.
ATTORNEY GENERAL 2000 SCGLR 305,
ELLIS V. ATTORNEY-GENERAL 2000
SCGLR 24.
In this case the most relevant
provisions to the respondent’s
case are those, in identical
terms, under article 218 [c] of
the Constitution and Section 7
[1] [c] of the CHRAJ Act, 1993
(Act 456), as follows: “to
investigate complaints
concerning practices and actions
by persons, private enterprises
and other institutions where
those complaints allege
violations of fundamental rights
and freedoms under this
Constitution”. (e.s.) As the
1992 Constitution was not in
existence in 1984 when the
respondent was dismissed, its
provisions could not have been
violated, so as to found a cause
of action in the appellant,
thereunder. The instances in
which CHRAJ can act
retrospectively have been
specified in the Constitution
itself. See CHRAJ V. ATTORNEY
GENERAL (1998-99) SCGLR 871.
This is not one of such
instances.
It is true that article 219 (2)
of the Constitution states
matters which CHRAJ cannot
investigate, namely:
(a) a matter which is pending
before a court or judicial
tribunal; or
(b) a matter involving the
relations or dealings between
the Government and any other
Government or an international
organization; or
(c) a matter relating to the
exercise of the prerogative of
mercy.
But these provisions themselves
are not free from the principle
of prospectivity of statutes and
are not by themselves expressly
or by necessary implication
allowing for retrospectivity in
respect of the other functions
of CHRAJ. See by analogy FATTAL
V. MINISTER FOR INTERNAL AFFAIRS
(1981) GLR 104 S.C.
I would also state that the
provisions of section 13(2)(a)
of the CHRAJ Act 1993 (Act 456)
and of the Limitation Decree,
1973 (NRCD 54) cannot open the
door to retrospectivity. Those
periods of limitation apply to
causes and matters as they arise
prospectively under common law
or statute, unless otherwise
expressly or by necessary
implication provided by statute.
Though the Limitation Decree,
1973 (NRCD 54) does apply to an
action brought to enforce a
CHRAJ decision, since limitation
periods start to run as from the
date of the accrual of the cause
of action involved, CHRAJ’s
cause of action, would accrue
from the date of its decision
and not otherwise; and it is a
new cause of action, different
from that vested in the parties
themselves. By analogy, I refer
to E.F. PHILLIPS & SONS LTD. V.
CLARKE (1969) 3 ALLER 710 where
Goff J quoted Danckwerts L.J in
MCCALLAMY COUNTRY RESIDENCES LTD
(1965) 2 ALL ER 264 as saying:
“A compromise may result in a
fresh cause of action which, if
it has to be enforced, will
require a writ and fresh
proceedings”. (e.s.)
I however agree that where a
complaint is within the scope of
article 218 of the Constitution
and section 7 of Act 456, then
reliance on common law
principles about sanctity of
contracts and the like cannot
avail a party if the relevant
provisions of the Constitution
have been infringed. I did,
myself, in KOGLEX LTD V. FIELD
2000 SCGLR 175 recognize the
parties’ constitutional right to
make their own contract, but I
never said that right could be
exercised contrary to the
Constitution. Common law
principles, such as estoppel and
locus standi, have been struck
down by this court as being
contrary to the Constitution.
See TUFFUOR V. ATTORNEY GENERAL
(1980) GLR 637 S.C., NEW
PATRIOTIC PARTY V. ELECTORAL
COMMISSION (1993-94) 1 GLR 124
S.C. and SAM V. ATTORNEY-GENERAL
2000 SCGLR 305. Certainly, such
existing laws must be construed
with the necessary
modifications, exceptions, etc
as directed by article 11(6) of
the Constitution, so as to
harmonise with its provisions.
I also agree that when CHRAJ
seeks to enforce its decisions
through court action the court
cannot give effect to them, if
they are, without or in excess
of jurisdiction, perverse or
procured by fraud or manifestly
wrong. The Constitution or
Parliament cannot have intended
otherwise.
Such proceedings are however not
an appeal, and therefore a
rehearing, and in the absence of
the exceptions I have
endeavoured to state, and others
ejusdem generis with them, the
court cannot take over the
functions of CHRAJ and
re-investigate the matters
before it for enforcement.
If a party is otherwise
dissatisfied with CHRAJ’s
decision, he can, for example,
seek redress under the
supervisory jurisdiction of the
High Court or Supreme Court,
otherwise the decision binds
him. It is CHRAJ which is
entrusted with its functions
under the Constitution and the
CHRAJ Act; and its jurisdiction,
cannot, subject to the
exceptions I have endeavoured to
state, be subverted by any other
authority.
However, for the reasons earlier
stated, I would also allow the
appeal.
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
WOOD (MRS) J.S.C.:
In exercise of its
constitutional and statutory
powers, the respondent
commission conducted an
investigative hearing into a
petition brought by an
ex-employee – one R.S.A. Kwaku,
against the appellant Bank. The
respondent followed it with an
originating notice of motion,
for an order to compel the
appellant to comply with orders
it made that they pay to the
petitioner, all benefits due him
since 1984, and at levels
prevailing at the date of
recommendation.
Aggrieved with the decision of
the Court of Appeal, which
substantially affirmed the
decision of the trial High
Court, they have appealed to us
on the following grounds:
“1. Judgment is not supported by
the law and evidence adduced at
the hearing.
2. The trial court, not having
seen and examined the evidence
adduced at the hearing before
the commission, erred in sealing
to enforce a ruling allegedly
based on the evidence.
3. The action is
statute-barred”.
I think that it is prudent to
deal with grounds 2 and 3 first.
In my opinion, they raise
substantial and fundamental
legal and procedural matters. If
the arguments in respect of the
ground 2 were upheld it would
set out in unambiguous terms,
one of the duties of trial
courts in actions brought by the
commission for the enforcement
of recommendations or decisions,
arising from investigative
hearings brought under the
relevant provisions of Article
218 of the 1992 Constitution and
Section 7 of the Commission on
Human Rights and Administrative
Justice Act, 1993, Act 456.
Again, if the ground 3 succeeds,
it would dispose of the entire
appeal.
Undoubtedly, the functions of
the commission as provided for
under Articles 218(a), (b), (c),
(e) and by the section 7(1)(a),
(b), (c), (e) and (f) are all
purely investigative. Since the
commission has no self
enforcement powers, it has been
mandated under Articles 218(d),
(iii) and (iv) of the 1992
Constitution as well as section
18(2) of Act 456, to institute
proceedings before any court and
seek the appropriate remedies
for the enforcement of its
recommendations.
The main question raised by the
self-explanatory ground 2, and
the extensive arguments made in
support thereof, is whether the
court before which actions under
Articles 218(d) (iii) and
section 18(2) are instituted,
are without exception,
constitutionally and statutorily
bound, to reopen the matter
brought before it by
scrutinizing the ruling in the
light of the evidence adduced at
the investigative hearing, and
granting the remedies sought
only, upon being satisfied with
the validity of the findings and
recommendations made, viz a viz
the evidence led at the hearing.
Stated differently, would the
commission’s action therefore
automatically fail, whenever it
did not make the relevant
evidence available for the court
to “rehear” the matter and make
its own independent assessment
of the matter complained of.
I do not think so. I would
endorse the Court of Appeal’s
position on this issue namely
that; our High Courts are not
clothed with any such
jurisdiction. Indeed, the court
speaking with one voice
concluded that: “The High Court
had no jurisdiction to usurp the
functions of CHRAJ or to re-open
the matter de no vo”.
Its duty in relation to the
originating notice of motion was
simply to grant the order
compelling the respondent herein
to implement the decision of the
commission unless it was clearly
in breach of the principles of
natural justice or otherwise
unjustified in law under in
fact”
The substantive point made by
the court, and which I agree
with is that it is not in all
cases that a reopening or a
rehearing of the complaint is
required. In typical common law
fashion, I dare not attempt an
exhaustive listing of these
cases in which the commission,
either suo noto or on the courts
orders ought to make the
evidence available, for the
necessary rehearing to be
conducted. Suffice it to say
however that, quite apart from
those instances cited by the
honourable Court of Appeal,
where the production of the
evidence is imperitative, and
even so I believe for purposes
which may not necessarily even
demand or require an actual
judicial review of the findings
and the commendations made, I do
forsee a situation where the
opposing party may have
rigorously denied the fact that
any such hearing were conducted
or that evidence was collected
from him. Under such
circumstances, a production of
the evidence becomes a sine qua
non, as it would undoubtedly
assist the court in making a
proper determination of the
issue raised, namely, as to
whether or not the investigation
hearing ever took place. Even
so, from the issue joined, the
court would not need to review
findings and recommendations
made. In any case, where an
issue is even raised on the face
of the affidavits, and it is one
which can be conveniently
determined on the strength of
the affidavits and annexures, a
production of the evidence
adduced at the hearing may not
be called for.
It is therefore clear that in
all these cases, where the
production of the evidence so
collected is required for
purposes including the
re-opening and rehearing of the
complaint lodged, it must be
apparent on the face of the
affidavits. It is only in such
plain instances, that the
production of the recorded
evidence, whether written or
mechanical is so vital, that the
non production would damage the
commission’s case. But
certainly, if the main facts
upon which the order sought
remains largely undisputed, no
duty rests on the commission to
produce the evidence, and none
rests on the court either to
call for it and review the
findings and recommendations
made. We would create a legal
oddity, if we ruled that without
exception, there ought to be a
rehearing of matters which have
undeniably been investigated by
the constitutionally and
mandated authority commission in
accordance with the rules of the
natural justice and the law.
So perhaps to do justice in this
case, we should ask this
question: what was the
appellants response to the
originating motion? Did he raise
any issues which called for the
production and examination of
the evidence, for an independent
assessment of the case by the
learned trial judge?
The answer to this question
naturally calls for an
examination of the affidavits
filed on both sides. The
respondents deposed to the
following essential facts in
their accompanying affidavit:
“(1) In order to resolve the
issues that came up, the
applicant invited the parties to
a hearing at which both oral and
documentary evidence was taken.
(2) That evidence adduced before
this commission showed that
there was an acceptable practice
at the Bank where the manager of
a branch could give loan
facility of the kind that the
petitioner made.
(3) That there was evidence of
other managers giving loans
which were higher than what the
petitioner gave and the bank did
not complain”.
The appellants response was
that:
“4. The respondent has noted
that the applicant in paragraph
8 of its affidavit admits that
the petitioner has acted without
authority.
5. The respondent says in
response to paragraphs 11, 12
and 13 that managers give
unsecured loans without
authorization at their own risk
and cases where the loans are
not refund they are held
accountable.
6. The respondent says that it
is merely following its laid
down rules and regulations in
insisting that the petitioner
benefit be withheld until the
customer liquidates the debt.
7. The respondent finds
paragraphs 14 and 15 of the
applicants affidavit
unacceptable in that they
suggest that managers should at
liberty to grant loans to
friends/customers without any
authorisation and go unpunished
when the loans cannot be
recovered.
8. The respondent maintains that
should the applicants argument
be upheld by the court, branch
managers will be encouraged to
give loans to themselves, refuse
to pay and yet retire with their
benefits.
9. The respondent says its
failure or refusal to comply
with the applicants ruling is
because it is dissatisfied with
and believes the entire ruling
to be wrong and misconceived”.
Unfortunately, no particulars of
the alleged error and
misconception were supplied by
the appellant and the respondent
did not exercise the option of
asking for them either.
It is clear however that he did
not attack the basic depositions
that both sides were heard and
also that the facts as deposed
were all elicited from the
evidence adduced on both sides.
His main complaint was that,
given those set of facts or
circumstances, the final
conclusions reached and
recommendations made were
clearly out of order. Under
which circumstances, the
production of the recorded
evidence was not in the least
vital to the respondents case.
And, the court had no
jurisdiction to call for the
evidence and or “reopen” and
“rehear” the complaint, and make
its own findings on the issues
joined.
In any case, the respondent’s
case as argued at the actual
hearing of the motion, was not
such as required a production of
the evidence. Indeed it is from
his arguments that we do catch a
glimpse of what allegedly was
wrong with the ruling. Their
argument was that the petitioner
gave an unsecured loan which the
bank has been unable to
retrieve. But this fact about
the loan being unsecured, was
vehemently denied by the
respondent. And the denial was
clearly corroborated by the
unchallenged paragraph 9 of the
affidavit in support of the
originating motion. I reproduce
it.
“9. The petitioner stated that
he granted the loan in the
normal course of his duties
after he had satisfied himself
of the viability of the
customers business. He did so on
the strength of the value of the
customers assets of ø25 million
used as collateral for a loan of
ø6.7m”.
This issue of the collateral was
never challenged by the
appellants in their opposing
affidavit. Indeed the only
paragraphs they made reference
to and gave specific answers to
are the paragraphs 6, 8, 11, 12,
13, 14 and 15.
It follows that no issue was
joined between the parties on
the question of whether or not
he gave an unsecured loan. The
respondent cannot therefore be
blamed for failing to produce
the evidence led, if any, in
proof of this fact. No blame
attaches to the learned trial
judge either for failing to
enquire into this issue either.
Indeed, given the state of the
affidavits, she was most
benevolent to have allowed
appellant to raise this matter
of the absence of a collateral
when they have not disputed the
fact in the opposing affidavit.
Be that as it may, in any case,
on the strength of the available
affidavit evidence, that issue
resolved in favour of the
respondent. Clearly where the
issue raised in the motion can
be determined from the available
affidavit, would there be any
need for the production of the
evidence collected at
investigation hearing? And would
the non-production do damage to
the commissions case? Certainly
not. I find no merit in this
ground of appeal.
The Ground 3.
The central argument in support
of this ground is simply that
the respondent commission ought
not to have entertained the
petition, since it was clearly
statute-barred both in terms of
the section 3 and section 4 of
the limitation Decree. NRCD 54
and section 13 of the Commission
on Human Rights and
Administrative Justice Act 1993,
Act 456.
Although this ground of appeal
raised the issue of statute bar,
the appellant counsel advanced
as many as three reasons in
support of the argument that the
commission was barred under
section 13 of Act 456 from
investigating the matter. Two of
them are in my respectful view,
misconceived, as they have no
bearing to the plea of statute
or time bar as provided for
under section 13 of Act 456.
These were that:
First, that there has always
been remedies both at common law
and under the statute,
specifically section 36 of the
Labour Decree 1967, NLCD 157 for
wrongful termination of
employment and other allied
matters.
Second, the overwhelming
evidence is that the petitioner
case had been thoroughly
investigated by several bodies.
Third, the petitioner waited for
some nine long years before
laying his complaint before the
commission, in spite of the fact
that he had full knowledge of
the alleged wrongful act. The
contention therefore was that,
having clearly slept on his
rights, he was out of time and
the respondent ought not to have
entertained his claim.
One of the most crucial answers
raised in response to the plea
of time bar is that it was not
raised before the Court of
Appeal, it never became an issue
for trial and cannot therefore
be raised at this hearing.
The general and undoubtedly
salutary rule that where a point
of law is relied on in an
appeal, it ought to have been
one which was canvassed at the
court below – trial or appellant
- and which was however wrongly
pronounced upon, admits of very
clear exceptions. This court
had had occasion to determine
the issue of whether or not it
is permissible in an appeal
hearing to raise a legal point
for the first time only, in this
court, in the case of Kwame v.
Serwah 1993 –94 1 GLR 4298.
Reliance was placed on;
(1) Kwanteng v. Amassah 1962 1
GLR 241, 250
(2) Stool of Abinabina v.
Enyimedu 1953 12 WACA 171, at
173 to inform the decision
reached that:
“Points of law arising on the
record may be raised in this
court for the first time, if
they involve substantial points
of law, substantive or
procedural and it is clear,
understandably so, that no
further evidence could have been
adduced which would affect the
decision on that point of law”.
I think this case, falls into
those category of cases. The
legal point advanced is
substantive and not at all
frivolous. Also the facts on
which the point is predicated,
are all clear on the face of the
affidavit and ruling in respect
of which the enforcement order
is sought. In other words, this
court would not need any further
evidence in order to reach a
just conclusion in the matter.
On the contrary, it is in a good
position to determine the issue
one way or the other on the
facts available and the
respondent would suffer no
miscarriage of justice if the
point were dealt with at this
state of the litigation process.
And so what is my answer to the
plea of statute bar, under NRCD
54? It is contained in the case
of CHRAJ v. AG 1998-99 SCGLR. On
the issue of the statute of
Limitation to the commission,
this court, unanimously speaking
through Hayfron-Benjamin, J.S.C.
ably put it this way.
“The provisions of the
Limitation Decree, 1972, NRCD
54, did not apply to the
commission investigation
functions under Act 456, because
the commission in the exercise
of its functions, did not
constitute a court”.
It does follow that the argument
that the petition was caught by
the Limitation Decree is clearly
untenable and must fail.
Although the appellant did base
the second limb of his argument
that the petition was statute
barred on the whole of the
section 13 of Act 456, in
reality only section 13(2) has
any reference to the plea of
time bar. I reproduce the
section 13 of the Act 456.
“13(1) where in the course of
investigation of any complaint
it appears to the commission –
(a) Under the law or existing
administrative practice there is
adequate remedy for the
complaint; whether or not the
complainant has availed himself
of it; or
(b) that having regard to all
the circumstances of the case,
any further investigation is
unnecessary, it may refuse to
investigate the matter further.
(2) The commission may refuse to
investigate, cease to
investigate or complaint –
(a) If the complaint relates to
a decision, recommendation, act
or omission of which the
complaint has had knowledge for
use than twelve months before
the complaint is received by the
commission or
(b) if the commission considers
that –
(I) the subject matter of the
complaint is trivial;
(II) the complainant if
frivolous or vexation or is not
made in good faith; or
(III) the complainant does not
have sufficient personal
interest in the subject matter
of the complaint.
(3) Not withstanding subsection
(2) of this section, if within
six months after the commissions
refusal or ceasing to
investigate any complaint under
this section, fresh evidence in
favour of the complainant
becomes available, the
commission shall, at the request
of the complaint re-open the
case.
From a bare reading of the
section 13 of Act 456 that there
are different fact situations
envisaged under the section
13(1) (a), (b), 2(a) (b), and
upon which ground the commission
may refuse to investigate the
complaint brought before it, so
for example under (1)(a) it
could decline jurisdiction where
under the law or existing
administrative practice there is
adequate remedy for the
complaint whether or not the
petitioner has availed
himself/herself of it, whereas
the ground for refusing to
investigate under 2(b) is
entirely different. Under that
ambit the considerations that
would apply are the following:
(i) The triviality of the
subject matter of the complaint;
(ii) The frivolity,
vexatiousness or bad faith of
the complaint;
(i) The lack of sufficient
personal interest by the
complaint in the subject matter
of the complaint.
The specific provision which
deals with the plea of statute
bar is therefore the section
2(a) of the Act.
Undoubtedly, the power conferred
under this section appears to be
discretionary, given that in the
interpretation of statutes, the
standard rule is that such words
as “may” in a statute is to be
given as permissive, this
creating the impression that the
power granted is unlimited.
But in CHRAJ V. AG (supra) this
court construed it otherwise and
held that this discretionary is
not an unfettered power and must
be utilized to the benefit of
the vigilant and not the
slothful, and more particularly
refused in cases where the
complaint had previously been
investigated by some other
credible authority. So in that
case, the unimpeachable
conclusion reached by this court
on the issue of whether the
commission in the exercise of
its investigative functions and
having regard to section 13(2)
(a) of Act 456 was caught by any
limitation of time was that:
“Even though the commission had
a discretion under section 13(2)
(a) of Act 456 to investigate
any complaint, there was a
built-in-time limit of twelve
months where such was the case,
it was not the duty of the
commission, out of compassion or
a desire to address human rights
issue, to exercise its
discretion in a such a manner as
would have the effect of opening
a andora box of matters upon
which save other committee or
commission had made definite
conclusions”
The age old principle that it is
in the interest of the public
that there is an end to
litigation must apply to state
claims for redress. The
discretionary power vested in
the plaintiff must be exercised
in aid of the vigilant and not
to succour the claims of the
indolent”.
On the particular facts of this
case namely that:
The petition was submitted nine
long years after the petitioner
became seized of it, the
commissioner is caught by the
built in time limit of twelve
months as stipulated under
section 13(2) (1) of Act 469.
In any event on the respondents
own showing, the complaint has
been dealt with by two other
credible bodies, namely the
Committee of Interdicted and
Suspended Public officers, as
well as the Regional Labour
office, both of whom, from the
Exhibit A, drew their own
conclusions.
The commission ought not to have
entertained the petition and we
in this court cannot therefore
give effect to the
recommendations made, by the
grant of the prayer sought.
I find that this sufficiently
disposes of the appeal and I
would not think that any purpose
would be served by dealing with
the other grounds.
G.T. WOOD (MRS)
JUSTICE OF THE SUPREME COURT
BADDOO, J.S.C.:
I agree.
S.G. BADDOO
JUSTICE OF THE SUPREME COURT
COUNSEL
A.T. Tamakloe for Ghana
Commercial Bank with William
Chumbui
E.K. Ofosu Quartey for the
Respondent. |
