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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.

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