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This application is triggered by
a letter dated 15th
August, 2011, under the hand of
the 1st respondent
herein, acting for the Ghana
Education Service (GES),
interdicting the applicant over
an allegation of rape. While on
interdiction, the applicant is
entitled to half of his salary
and is barred from enjoying any
increment in emolument. The
instant application, basically,
seeks to set aside the said
interdiction on grounds of
procedural defect and
illegality.
The applicant undoubtedly is
apprehensive about his tenure of
office in view of his
interdiction and its
ramifications and has run to
this court, challenging the
legality of the suspension. The
letter of interdiction (Exhibit
LKK1) is as follows:
“INTERDICTION
MR. LAWRENCE
KWASI KORLEY-1124/SDU/84/89
ASSISTANT
HEADMASTER
ODORGONNO SENIOR HIGH SCHOOL –
ACCRA
STAFF ID NO. 242403
I refer to the allegation
against you as having raped an
US Volunteer by name Ms. Artisi
Cross which is currently before
the court.
In line with the Ghana Education
Service Conditions of Service
you are hereby interdicted with
immediate effect.
You are to remain on
interdiction until the final
determination of the matter.
Kindly hand over all school
property in your care to the
Headmistress, Mrs. Mary Amankwa
on or before Friday, August 19,
2011 under the supervision of
the Municipal Director of
Education, Ga South-Weija
Regional Chief Internal Auditor
and the Board Chairman.
Thank you.”
The applicant denies the reason
for his interdiction. He avers
in paragraph 11 of his affidavit
thus:
“Till date, I have not been
tried, nor charged with any
crime, be it rape contrary to
sect 97 of the Criminal Offences
Act, Act 29 or under any other
laws of the Republic of Ghana.”
The applicant is aggrieved by
his interdiction and claims
against the respondents the
following reliefs:
“a. Declaration that the
purported letter dated August
15, 2011 from the Ghana
Education Service in the
character of Exhibit LKK 1 is
void and of no legal moment.
b.
Declaration that my purported
interdiction communicated via
Exhibit LKK1 is void and
unlawful.
c.
An order restraining the
Respondents from interfering
howsoever, whatsoever in any
way, manner or form, with the
lawful employment of the
Applicant.
d.
The payment of the amount of
GH˘5,000,000.00 (Five Million
Ghana Cedis) as general damages
and for violation of the
Applicant’s Constitutional
rights both severally and
jointly.
e.
The payment of the amount of
GH˘5,000,000.00 (Five Million
Ghana Cedis) as punitive damages
both severally and jointly.
f.
Any order or orders that this
Honourable Court may deem fit.”
The allegation of rape leveled
against the applicant was a
topical issue widely published
along the length and breath of
this country and beyond courtesy
the print and electronic media.
The author of the allegation is
Ms. Artisi Cross, the victim of
the alleged act. Ms. Artisi
Cross, a United State of
American volunteer was attached
to the Odorgonno Senior High
School. I do not intend to dwell
on the allegation. It is not in
issue here. It suffices to say,
however, that it is one incident
that has the potential of
putting the Ghana Education
Service and the Country in a
very bad light in the
international arena. It also
cast a slur on the integrity of
teachers generally. On the flip
side, parents would be concerned
about the safety of their female
wards who have been entrusted to
the care of male teachers. The
social and political
implications of the allegation
could be immense. On this score,
I think, every responsible
organization or employee will
take steps to unravel the truth
or otherwise of the allegation
with the view to exposing the
bad nuts within its
establishment and to redeem its
own image.
In its quest to get to the
bottom of the matter, and in
line with its administrative
procedures, the employers of the
applicant wrote exhibit LKK 1 to
interdict him. The employers of
the applicant were emboldened to
write exhibit LKK 1 because they
thought that the decision to
interdict is well within their
power and grounded in law. In
paragraphs 10 and 11 of their
affidavit in opposition, they
aver as follows:
“10. That the conditions of
service and code of professional
conduct for teachers of the
Ghana Education Service provide
for interdiction of officers
whenever the Disciplinary
Authority thinks so to allow for
investigations.
11. The relevant Labour Laws of
the Country provide for
interdiction of employees
whenever necessary.”
Elaborating further on these
averments, the respondents, in
paragraph 22 of their affidavit,
said:
“22. That pages 108, 109 and 110
of the conditions of service and
the code of professional conduct
for teachers in the Ghana
Education Service and Section 8
of the Labour Regulations, 2007
(L. I. 1833) expressly provide
for the interdiction of
employees.”
The respondents are saying, in
effect, that the interdiction of
the applicant is justified by
virtue of the relevant
provisions of the code of
professional conduct for
teachers in the Ghana Education
Service; and section 8 of the
Labour Regulations, 2007 (L. I.
1833).
The applicant is not opposed to
the holding of investigations
into his alleged conduct. He
denies the reason offered for
his interdiction. According to
him, he has neither been charged
with a criminal offence nor is
he facing trial for a criminal
offence. I find the interdiction
letter (Exhibit LKK 1)
remarkable for one reason. It
sufficiently informed the
applicant the reason for his
interdiction. At least, the
constitutional requirement of
informing a person suspected of
having committed a crime of the
reason why an action has been
taken against him was met.
By its tenor, the interdiction
letter exhibit LKK 1 was
authored pursuant to Part 8 of
the code of professional conduct
which binds all teachers within
the Ghana Educational Service
including the applicant. Section
3 thereof deals specifically
with interdiction. The section
provides:
“Notwithstanding the preceding
paragraph, a member of the GES
charged or facing trial for a
criminal offence, except a motor
offence is liable to be
interdicted unless the GES
council upon the advice of the
Director-General decides
otherwise.”
The section, without any
controversy, envisages the
existence of two situations
either of which may entitle the
Ghana Education Service to
interdict a member. The two
conditions are:
1.
Where the member is charged with
a criminal offence; or
2.
Where the member is facing a
criminal trial.
The criminal offence must not be
a motor offence. Thus members
who are charged with a motor
offence or tried for motor
offences are exempt from
interdiction.
Thus, the jurisdiction of GES to
invoke and apply its
administrative and or
disciplinary powers under
section 3 of Part 8 of the code
of professional conduct depends
on the occurrence of any of the
pre-condition set out therein.
The section does not give the
respondents or the Ghana
Education Service general powers
to interdict on flimsy grounds
or for some other reason
howsoever plausible it might
appear.
In this case, the opening
paragraph of the interdiction
letter (Exhibit LKK 1) was
premised on one of the
conditions set out in section 3
of Part 8 of the code of conduct
to wit: the applicant is facing
a criminal charge for rape. The
statement was rendered with a
degree of certainty and
unequivocally thus: “I refer to
the allegation against you as
having raped an US Volunteer by
name Ms. Artisi Cross
which is currently before the
court” (emphasis mine).
The applicant denies facing
trial for an alleged rape. He
also denies having been charged
for rape or for some other
criminal offence. He challenged
the respondents to substantiate
the assertion. Since the
applicant asserts the negative
of this issue, the burden is on
the respondents who assert the
positive to prove the assertion.
It is trite law that a negative
averment throws the burden of
proof on the person who asserts
the positive. (See section 11(1)
of the Evidence Act, 1975, NRCD
323.)
Quite unexpectedly, the
respondents were unable to put
forward any scintilla of
evidence to sustain the ground
upon which the suspension or
interdiction is based. The
falsity of the reason proffered
for the interdiction renders the
same impotent, ineffectual,
baseless and invalid.
Procedurally, the respondents
goofed in rushing to interdict
the applicant when the event
they relied upon had not
occurred.
Learned counsel for respondents
tried to divert the court’s
attention from the main issue at
stake, by adverting to some
other reasons, to justify the
interdiction. I appreciate
counsel’s shrewdness. The mark
of a good lawyer is to try and
steal the show even when the
odds are heavily against him. In
so doing, he may, if the judge
is not smart, succeed in scoring
undeserved points. But before I
look at the grounds canvassed by
counsel, let me reiterate that
the interdiction cannot be
justified on any ground, save
what has been stated in the
letter of interdiction (Exhibit
LKK 1). I will, at this
juncture, liken the interdiction
letter to a charge sheet. As a
charge sheet, per the
particulars of offence, informs
an accused of what is alleged
against him, so is the reason
assigned in an interdiction
letter. Respondents cannot
abandon the reason offered in
exhibit LKK 1 and substitute
some other reasons for it. The
respondents are estopped by the
interdiction letter (exhibit LKK
1) from assigning new reasons
for the interdiction of the
applicant. (See section 25(1) of
the Evidence Act, 1975, NRCD
323.)
I should have rested my decision
here but I will take an
excursion into the arguments
canvassed by counsel for
respondents which, as I have
said, flies in the face of
exhibit LKK 1. As a public
institution, the Ghana Education
Service felt that its image was
dented by the allegation of
rape. It did not want to create
the impression that it was
condoning crime. It wanted to
demonstrate to the world at
large that it has the capacity
to cleanse its house of garbage.
To this end, the respondents
averred in paragraphs 7 to 9, 14
and 19 of their affidavit filed
on 09-09-2011 thus:
“7. That the Applicant is
administratively and for
disciplinary purposes
responsible to the 2nd
Respondent through the 1st
Respondent.
8. That the 1st
Respondent with the consent of
the 2nd Respondent
has only interdicted the
Applicant to allow for full
scale administrative
investigations into the matter
as per Exhibit LKK 1 annexed to
the application of the
Applicant.
9. That the said interdiction is
not a sanction and therefore the
perception by the Applicant that
he has been sanctioned is
misconceived and based on wrong
counsel.
…
14. That Exhibit LKK 1 is not an
imposition of sanction on the
Applicant but only to ask him to
step aside to allow for
administrative investigations
into the allegation.
…
19. That rather if the matter is
not fully investigated and
allowed to hang on, it will
bring the Ghana Education
Service into disrepute and that
is where the Applicant should
complain about loss of
reputation.”
From the above, the reasons
behind the interdiction of the
applicant are obvious. It seems
to me that, if these reasons
were communicated to the
applicant and all the necessary
pre-requisite conditions were
satisfied, the instant
application may not have been
necessary. Sadly, respondents
chose to proceed on a wrong
footing.
I concede the fact that the
respondents or for that matter
the employers of the applicant
have the prerogative to
discipline its employees and to
impose appropriate disciplinary
sanctions on employees who do
not fall in line with rules and
regulations. However, the
employer does not have an
unbridled latitude to do as it
wishes. It has to act in
conformity with its rules and
regulations. In the instant
case, the code of professional
conduct for teachers (Exh LKK 1)
is a contract document
regulating the affairs and
conduct of the contracting
parties. Each of the parties
agreed expressly, by necessary
implication to be bound by its
terms and conditions. The
conducts of employees are to be
measured according to the
stipulations contained therein.
Aside section 3 of Part 8 of the
code which I have already
discussed, the other provision
which has a bearing on this
application is Section 2 (ii) of
Part 8. It provides:
“Where a preliminary
investigation or inquiry
discloses that a criminal
offence may have been committed
by an officer of the Education
Service, the Disciplinary
Authority is entitled to report
the matter to the Police or to
the Attorney-General’s office
for appropriate action and
advice. This however shall be
without prejudice to the power
of the Disciplinary Authority to
take such further or other
action in accordance with the
disciplinary procedures in this
code as are justified by
the results of the
investigations or inquiry
against the officer.”
(emphasis mine).
The allegation of rape is
already pending before the
police for investigations so the
first part of the section has
been satisfied albeit without
the holding of a preliminary
investigations or inquiry by the
respondents. It is the
application of the second part
that has become contentious. It
is the case of the applicant
that the respondents could only
apply the provisions of the
second limb of section 2(ii) of
Part 8 if, and only if, it
conducted a preliminary
investigation into his conduct
and he was giving a hearing.
Counsel for respondents opposes
the applicant’s contention and
submits that the section is
inapplicable because an
interdiction is not a sanction
and since the section talks
about the imposition of a
sanction, it cannot be applied
to this case. Counsel is of the
view that ‘sanction’ means the
infliction of a punishment on a
wrong doer; and, since the
applicant has not been found
guilty of the allegation, he
cannot be sanctioned.
A careful reading of the section
shows that the imposition of a
sanction is supposed to be a
prelude to the holding of a full
scale disciplinary action into
the alleged conduct of the
suspected employee after an
initial preliminary
investigation. The preliminary
investigation is intended to
establish whether or not there
exist a prima facie
case against the suspected
employee and it is sufficient
enough to warrant disciplinary
proceedings to be initiated
against him. The word
‘sanction’, as used in the
section, therefore, bears no
mark of finality in respect of
the punishment to be suffered by
the suspected worker for having
been found guilty or liable for
the commission of a wrongful act
or a crime.
I do not think the word
‘sanction’, as used in the
section, admits of a stereotype
interpretation. The word must be
liberally interpreted to give
the section its true meaning.
Normally, words bear their
meaning from the context in
which it is used. The word
‘sanction’ is a word of art and
it could be used in various
contexts. Its meaning could be
gleaned from reading the whole
of Part 8 of the code of
conduct, reflecting on its
effect and what it is intended
to achieve.
Interdiction or suspension,
without any shred of doubt,
impinges on the rights and
expectations of the affected
employee. It has social,
economic and psychological
implications on the affected
employee and that of his family.
The applicant herein is worse of
as he is receiving half-salary.
He has to adjust his budget and
re-align his priorities and
preferences. He may have to do
certain things in order to keep
himself together. His problems
are compounded because, as a
full time public servant, he is
not expected to do any work to
augment his diminished income.
He is deemed in law and, by the
terms of his contract, to be in
the employ of his employers yet
he is denied his basic benefits
including increments in his
emoluments. The common law
position on the class of
workers, the applicant finds
himself in, strikes me that he
is being unfairly treated. The
common law position was lucidly
stated in the case of
Norton v. Mosenthal Co. 1920 EDL
at page 118 thus:
“Where the master is prepared to
hold the servant to his contract
and according to the contract
the servant may be called upon
to come forward and do his work,
and when the contract prevents
him from being free to earn
wages in some other capacity,
then the master cannot claim
abdication of wages for the time
services were not actually
performed.”
The rationale of this rule is
founded in common sense. As a
full time employee, it is
expected that his rights would
be respected. The object of the
common law rule is to prevent
the infliction of pain and
suffering on the affected
employee.
In addition to his plight, he
cannot travel outside Ghana
without seeking permission from
the Director-General. An
interdicted employee cannot
perform the functions of his
office. He cannot, therefore,
derive satisfaction from his
chosen career. He is virtually
rendered redundant. The
perception people have about him
may change. He may loose respect
and self esteem. Indeed, all
sorts of meanings may be put on
his suspension. What Howie J
said in the case of Muller
& 5 Other v. Chairman of the
Ministries [1991] 12 ILJ 761 at
773-776 is very
appropriate. He said:
“The implications of being
barred from going to work and
pursuing one’s chosen calling,
and of being seen by the
community round one to be so
barred, are not so immediately
realized by the outside observer
and appear, with respect,
perhaps to have been
underestimated in Swart and
Jacobs cases. There are indeed
substantial social and personal
implications inherent in that
aspect of suspension. These
considerations weigh as heavily
on South Africa as they do in
other countries.”
Suspension may be imposed in
deserving cases and in
accordance with laid down
regulations. Even where the
suspension of an employee
becomes imperative and it ought
to be done without first giving
the employee a hearing, the
current legal thinking is that
the employee must be giving his
full pay. In Lewis v.
Heffer & Others [1978]-3 ALL ER
354 (CA), Lord Denning
MR said:
“Very often irregularities are
disclosed in government
department or in a business
house; and a man may be
suspended on full pay pending
enquiries. Suspicion may rest on
him; and he is suspended until
he is cleared of it. No one, as
far as I know, has ever
questioned such a suspension on
the ground that it could not be
done unless he is given notice
of the charge and an opportunity
of defending himself and so
forth. The suspension in such a
case is merely done by way of
good administration. A situation
has arisen in which something
must be done at once. The work
of the department or office is
being affected by rumours or
suspicions. The others will not
trust the man. In order to get
back to proper work, the man is
suspended. At that stage, the
rules of natural justice do not
apply.”
Lord Denning insists on the
payment of full pay. This is the
common law position. The payment
of full pay is to keep the
affected worker in the position
he was, financial wise, before
his suspension.
The many negative effects
suspension brings, especially
where the worker has to earn
diminished earnings, to the life
of the affected worker makes
suspension punitive. In the
light of this, it is suggested
that employers should not be too
ready to impose suspension in
flagrant breach of laid down
rules or when that cause of
action has not accrued. In the
case of Sapo v. Jansen Van
vuuren No & Others [2008] 8 BLLR
798 (LC), Molahlehi J
stated:
“There is, however, a need to
send a message to employers that
they should refrain from hastily
resorting to suspending
employees when there are no
valid reasons to do so.
Suspensions have a detrimental
impact on the affected employee
and may prejudice his or her
reputation, advancement, job
security and fulfillment. It is
therefore necessary that
suspensions are based on
substantive reasons and fair
procedures are followed prior to
suspending an employee. In other
words, unless circumstances
dictate otherwise, the employer
should offer an employee an
opportunity to be heard before
placing him or her on
suspension.”
Consequent upon his suspension,
the applicant is receiving half
of his salary at the end of the
month in clear breach of his
common right to be paid his full
salary. The payment of half of
his salary also infringes
section 9 (b) of the Labour Act,
2003, Act 651 and Article 24 (1)
of the 1992 Constitution both of
which guarantees his salary
while he remains a full time
employee of the Ghana Education
Service. Another dimension to
his predicament is that, during
the period of interdiction, he
is not required to enjoy any
increment on his earnings. This
means that while his colleagues
of the same rank might enjoy
enhanced salaries, he will be
denied such privilege. It is
mind boggling that in these days
of constitutional democracy
where the rule of law reigns
supreme and the fundamental
human rights of the individual
is to be respected, the
enforcement of which is an index
of good governance, such
discriminatory and offensive
provisions which are in clear
breach of the fundamental human
rights clauses in the
Constitution should be
entertained. It is sad that the
Ghana Education Service is
refusing to see that these
provisions are punitive,
unconstitutional and
anachronistic.
For me, it is hypocritical to
suppress the rights of a worker
in the manner the applicant has
been treated and say it is not a
sanction. Has the respondents
thought of how the applicant is
going to manage his life and
that of his family when his
finances have been curtailed?
Are the respondents saying that
the applicant is well off with
this arrangement? In the Lesotho
case of John Molai
Ramoholi v. Principal Secretary
for the Ministry of Education
and Attorney-General, CIV/APN/105/95,
Justice W. C. M. Maqutu made
this remarkable statement:
“It seems to me that to the
suspected official, suspension
without pay is definitely
punishment. The reason being
that its consequences are often
irreversible. The whole style of
living of a modern public
servant is planned around his
monthly salary. It is not
unusual that the school fees of
his children are paid
periodically, goods are taken on
hire-purchase, house mortgages
are periodic payments and all
these payments are scheduled and
paid out of the monthly salary.
To suddenly stop a public
servants salary might sometime
lead to the immediate exclusion
of his children form school,
repossession of his car and
other goods under high-purchase,
the calling of the bound and
loss of his house. Even if the
suspect is cleared and he gets
all his suspended emoluments, he
could not always be able to get
back what he lost. The court is
obliged to take judicial notice
of this reality. Taking away the
emoluments of an official
suspected of misconduct and
suggesting that is not
punishment, strikes me as hair
splitting and using language in
the most abstract fashion.”
By parity of reasoning, it is a
punishment to suspend an
employee and pay him a
diminished salary and then
freeze his prospects of earning
increments on his emoluments. A
person’s remuneration is his/her
property. To withhold it either
wholly or partially is an
infringement on his/her right to
own that property. It must be
clear to any doubting Thomas,
now that suspension in the
manner, it was imposed on the
applicant is a sanction. It
could be rendered thus: The
applicant was sanctioned with an
interdiction over an allegation
of rape.
In deciding to interdict the
applicant, the respondent or for
that matter GES confused and
misled themselves and thereby
took a wrong decision. They
failed to adhere to the
specifics and pre-requisites
enshrined in their code of
conduct. The provisions of
section 2 (ii) of Part 8 of the
code cannot avail them, firstly,
because they did not plead it in
exhibit LKK 1 and, secondly,
because they side stepped the
basic conditions prescribed
therein. There were no
preliminary investigations to
establish a prima facie case
against the applicant. Under the
code of professional conduct for
teachers, the respondents have
no power to interdict an
employee on a mere allegation
without first giving the
affected employee an opportunity
to make a statement in
exculpation of the allegation.
Applying the provisions of
section 2(ii) of Part 8 of the
code to the facts in this case,
I must say that the suspension
of the applicant is illegal. It
was done without jurisdiction.
The applicant has claimed for
damages in terms of reliefs (d)
and (e)., that is damages for
the violation of his
constitutional rights; and
punitive damages. I really do
not see the difference between
the two reliefs. I shall treat
them as a single relief for
damages for the violation of his
constitutional rights. Damages
under this head are not
actionable per se. He has to
prove actual damage and he must
prove the following:
(a)
The actual loss suffered
(b)
That the loss was occasioned by
the violation of his right or
the interdiction.
(c)
The loss must be foreseeable
i.e. it must not be remote.
The applicant did not lead any
evidence whatsoever on any loss
suffered by him. The court will
not speculate that because he
was wrongly interdicted, he
thereby incurred losses. The
only loss that he suffered is
the unpaid one-half of his
monthly salary.
I will conclude this judgement
with this statement: Section
2(ii) of Part 8 of the code of
professional conduct for
teachers in the GES is a
progressive provision. It
incorporates the audi
alterem partem rule. By
implication, employees, like the
applicant, who are suspected of
misconduct have legitimate
expectations that they will be
given the platform to state
their case so as to enable the
employer take a decision whether
or not to impose a suspension
than to act upon a mere and bare
allegation which prima
facie does not implicate
the suspected employee in the
real sense of the word.
Unfortunately, the respondents
failed or refused to apply this
section to the case of the
applicant and rather chose to
rely on a cause of action that
had not accrued to them. The
result of their action is quite
obvious.
In the result, I enter judgement
for the applicant against the
respondent as follows:
(a)
That the letter dated 15th
August, 2011 interdicting the
applicant is wrongful and of no
legal effect and the same is
hereby set aside.
(b)
That the interdiction of the
applicant is declared unlawful
and the same is set aside.
(c)
That the applicant resumes his
position forthwith.
(d)
That the respondents do pay to
the applicant all of his
withheld emoluments.
(e)
That the respondents pay to the
applicant the cost of this
application assessed as GH˘4000.00.
Counsel:
1. Kay Amoah Jnr. for Applicant.
2. Anthony Boateng for 1st
and 2nd Respondent.
3. No appearance for the
Republic.
(SGD.) KOFI ESSEL MENSAH
JUSTICE OF THE HIGH COURT.
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