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REASONS
WOOD, J.A.:
We dismissed this
appeal from the decision of Her Honour Miss A.M.A.
Dzordzie, as she then was sitting at the Accra Circuit
court and reserved our reasons. We now give them. The
facts giving rise to this action are simple and devoid
of any complex legal issues. Not unsurprisingly, the
evidence led on both sides is equally straightforward
and brief. It is therefore surprising that this appeal
is based not only on five main grounds but raises also
very many issues of law, some of which were never raised
at the trial.
The facts which led to
the commencement of these proceedings are that by a
letter dated 19th June, 1992, the respondent corporation
wrote to the appellant, terminating his appointment with
the respondent. The letter indicated the grounds upon
which the termination was based. It was alleged that, in
answering a query sent to him he had “used unacceptable
language in his replace to both the Regional Manager and
Head of Personnel. Such conduct it was pointed out was
"in contravention of the laid down procedure and
regulations of the Trust" But, because the sanction
imposed on him was a termination and not a summary
dismissal, the respondent paid him all his just
entitlements made up of his:
(1) The balance of his
enhanced provident fund.
(2) Balance on Savings
account,
(3) A long service
award of ¢20.000.00
(4) Three (3) months
Salary in lieu of notice. This of course was subject to
whatever moneys he owed the trust and or other
institutions, the Social Security Bank Ltd included.
Not in the least
satisfied with this turn of events, he sued the
respondents:
(a) a declaration that
the termination was a nullity.
(b) Reinstatement or
in the alternative damages for wrongful dismissal.
By the paragraph of his
statement of claim, he complains that the termination
was not only wrongful but incompetent and a complete
nullity. The following were set out as the particulars.
First, that "as an
officer Grade I the plaintiff cannot be terminated under
Article 1 Sub-Section 7(a) of the defendants rules of
service which does not apply to him.
Secondly, that the
disciplinary Committee which investigated his conduct
was not properly constituted and was in contravention of
the laid-down procedure and regulations of the Trust in
so far as two junior members of staff were made to sit
on the committee and the termination letter was not
signed by the General Manager (Administration), the
officer authorised to do so under the regulations of the
Trust.
After a critical
examination of his claim and the evidence adduced on
both sides, the trial judge dismissed his claim. By
this appeal, he has invited us to set aside the decision
of the court below and award him such damages as we
think the circumstances justify.
Before we turn to the
substantive grounds it would be appropriate to deal with
the preliminary objection raised by the appellant
counsel in his reply. The objection is that since the
respondent filed his written reply well after three
weeks, the period limited under Court of Appeal Rules,
1997, C.I.19, rule 20 subrule 4 he must be deemed to
have
filed any answer and
consequently he must not be heard in these proceedings.
Again, it was urged this court has no discretion to
extend the time limited under the rules and therefore it
was urged that this defect was uncapable of cure.
We think that the
argument that this Court has no jurisdiction to extend
or enlarge the time within which a respondent may file a
written submission of his case in answer to the
appellants written submission is a complete fallacy. The
rules of court provides that the written answer (to
appellate submission) may be filed within three weeks of
the service" or within such time as the court may upon
terms direct. We reproduce the rule. It stipulates.
(4) A party upon whom
an appellants written submission is served, shall, if he
wishes to contest the appeal, file the written
submission of his case in answer to the appellants
submission within three weeks of the service, or within
such time as the court may upon terms direct."
We think counsels
submission stems from a misapprehension of the subrule
8, which provides:
"Where a respondent
does not file a written submission of his case and does
not agree to make a joint written submission under the
provisions of this rule he shall not be heard at the
hearing of the appeal except as to questions of costs.
The above rule is in
our humble opinion referable to a respondent who does
not take advantage of any of the steps or procedure
relating to the filling of a written answer namely that
in his own name he files a written answer or does agree
with the appellant to make a joint submission. In other
words, the rule that the respondent shall not be heard
save as to the question of costs may not properly be
invoked against a respondent who has at the time of the
hearing filed a written submission in answer, albeit out
of time. Clearly by the provisions of sub rule (4) the
offending party may succeed in having the time allowed
under the rules enlarged. The respondent in this, at
the case at the case at the date of the hearing had
filed a written submission and had at the hearing
applied to have the time enlarged for these purposes.
We now turn our
attention to the substantive grounds of appeal. By the
first ground, the appellant complains that the learned
trial judge erred in law in allowing the respondents to
amend their defence so as to allege for the first time
new facts, at a time they had opened the defence.
The argument in the
main was that the grant of leave was an improper
exercise of a discretion for it allowed them to plead
and tender the Exhibit ‘2’ the rules of service
governing senior employees, and this in effect allowed
them to set up for the first time, at that late stage a
claim that his termination was based on that document.
It was argued at the hearing that the Exhibit "2" is
fraudulent, an altogether pure fabrication calculated to
deceive the court. Also that it does not bear the common
seal of the Trust and further that it was never executed
or issued on the behalf of the Trust.
The clear position of
the law is that an appellate Court would only interfere
with and set aside an exercise of discretion by a trial
judge where the judge of first instance failed to act
judicially. What this means has been explained in
Ballmoos vrs: Mensah 1984-86 I GLR.725 as follows:
"The Court of Appeal
would not interfere with the exercise of the trial
courts discretion save in exceptional circumstances. An
appeal against the exercise of the courts discretion
might succeed on the ground that the discretion was
exercised on wrong or inadequate materials if it could
be shown that the court acted under a misapprehension of
fact in that it either gave weight to irrelevant or
unproved matters or omitted to take relevant matters
into court, but the appeal was not from the discretion
of the court to the discretion of the appellate
tribunal."
The learned justices in
Nkrumah vrs: Serwah & Ors. 1984-86 1 GLR. 190 at 198
stated the circumstances under which an appellate court
would disturb the exercise of a trial courts discretion
to grant or disallow leave to amend as follows:
"The granting or
refusal of the application for leave to amend pleadings
is discretionary and the court of appeal will not
interfere with the exercise of that discretion unless it
is satisfied that the trial judge applied a wrong
principle or it can be said that he reached a wrong
conclusion which would work manifest injustice: See
Yeboah vrs: Barfuor 1971 2 GLR. 199 CA."
We have examined the
appellants affidavit in opposition to the motion for
leave to amend. No where in his affidavit does he raise
the rather serious issues of fact which he now seeks to
raise namely the issue that the Exhibit '2' is
fraudulent, an afterthought and a fabrication,
calculated to deceive the court and further that it does
not bear the common seal of the Trust and was never
executed on behalf of the Trust. Indeed even as regards
the case of the limited facts that were set up in the
affidavit in opposition, appellant plainly at the
hearing of the motion withdrew any opposition that he
may have to the grant of leave, and consented himself
with a praise to raise technical points at the address
stage."
As assign of his good
faith in agreeing to the amendment, he filed an amended
and reply amended summons for directions. He was
allowed (1) to recall the appellant, (2) to lead
evidence in rebuttal of the fresh or uncleared matters
that arose as a result of the amendment and the evidence
led in support thereof. There was no injustice to him,
neither was he taken by surprise nor has there been a
miscarriage of justice. Frankly, he cannot now (1) raise
these issues of fact and (2) accuse the learned trial
judge of having taken the wrong facts into consideration
in allowing the amendment. In any case the S.(9) SS (4)
of the Social Security Law, 1991 PNDCL.247, does not
require that the rules of service must, in order to be
valid, bear the seal of the Trust. Finally, and even
more importantly, the issues that are now being raised
in relation to the application for leave (ought in view
of the position taken by the appellant that he would not
to oppose the application), properly to have been taken
earlier at the tendering of the document itself, or
raised during the cross-examination of the witness or
witnesses who led evidence on the Exhibit "2" and its
import, and also when the need arose to lead evidence on
his own behalf in proof or disproof of the necessary
facts. In short then we find no merit in this ground of
appeal and an appeal based on same must fail.
Next, it was submitted
with respect to the ground 2 that in so far as the
Exhibit "2" was not stamped, authenticated or executed
it was inadmissible and the learned trial judge erred in
law in admitting same into evidence.
When the Exhibit was
sought to be tendered on the 9th of May 1995, the
appellate counsel raised no objection to its tender.
Nevertheless, we think
this ground of appeal is equally meritorious. First, it
has not been demonstrated that rules of service Exhibit
"2" is liable to stamp duty. The mere fact that it has
been described by at the cover as an indenture does not
make it a deed, liable to stamp duty.
It has also been argued
that since (1) the Exhibit '2' does not bear the seal of
the Trust and also (2) that has not proved to have been
signed or executed by the person purported to have made,
it is clearly inadmissible and any decision based on it
ought properly to be set aside. We think the second
issue raised ought to touch on the cogency or the weight
to be attached to the Exhibit "2" rather than its
admissibility, which in any case was never put in issue
at the trial.
As regards the issue of
the seal of the Trust, counsel has not demonstrated that
under S.9(1) of the Social Security Law 1991, PNDCL.247,
the rules of service is included in the class of
contracts etc. in respect of which the seal of the
/Trust is required.
We on our part do not
think the law requires that the seal of the Trust ought
to applied to the Exhibit '2'.
The objects of the
Trust, as set out under S.3 are as follows:
(a) to be responsible
for the general administration of this law and any
regulation made thereunder;
(b) to provide social
protection for the making population for various
contingencies such as old age, invalidity, and such
other contingencies as may be specified by law.
(c) to be responsible
for the administration and investructure of the Scheme
within the frame work of general directives issued by
the Board referred to in section 4 of this law.
(d) to carry out such
other activities as may appear to the Trust to be
incidental or conducive to the attainment of its objects
under this law.”
We think that it is
contracts, deeds etc. which are entered into in
realisation of these objectives that must bear the
common seal. Finally, we think it is too late in the day
for the appellant counsel as he attempts to do now to
raise questions as to the authenticity or identity of
the Exhibit '2', all of which are issues of fact, or the
fact that it offends the primary evidence rule in that,
it is not an original or the duplicate or the fact that
no foundation was laid before it was tendered.
These are all matters
which ought properly to have been raised at the time the
document was tendered. Even under cross examination no
questions were asked on any of these matters, namely,
authenticity or genuineness, identity, etc. We find no
merit in the ground as well and we would dismiss it.
The ground '3’ reads:
"The learned Judge
misdirected herself in law in failing to hold that the
Defendants are estopped by the contents of Exhibit ‘C’
herein from claiming that the Terms "rules of service is
used exclusively in the Trust with respect to Senior
Staff conditions of service."
It does not appear from
the above the ground and the reliance on the case of
Social Security Bank Ltd. vrs: Agyarkwa 1991, 2 GLR.192
C.A. that we are being invited to determine whether the
issue of estoppel by conduct does arise in this action.
For indeed had he intended to rely on estoppel (by
representation or otherwise) the law requires that he
raise it in his pleadings.
Since he raised no such
plea, it would clearly to be wrong for him to criticize
the learned trial judge for failing to deal with the
issue. But as we have already pointed out it does not
seem to us that is the argument being raised by the
ground ‘3’. If we understand him correctly his
discontent lies with the trial judge’s failure to opt
for their version and hold in their favour as they had
maintained in their pleadings para, 4 (1) and their
evidence, that being a Senior Officer Grade I the
Article I subsection 7(a) of the defendants rules of
service which they have referred to in their dismissal
letter Exhibit ‘A' does not apply to him. Put in order
words, the argument of appellant counsel is that since
the respondents
by their own exhibit
'A' has asserted that the appellants dismissal is based
on Article 1 ss.7(d) of the rules of service, and
reference also is made to rules of service in his
appointment to a junior officer grade in Exhibit 'G',
the respondents ought not to be heard, and must be
estopped from asserting that "the rules of service"
referred to in the Exhibit 'A', the termination letter
is not the same as that which is referred to in Exhibit
‘C’ and which rules cover only junior officers.
Consequently, it was
urged that the learned trial judge ought not to have
found in respondent’s favour that the termination was
effected under the Exhibit ‘2’. What we are being
invited to do therefore is to reverse the finding and
hold firstly that the termination was effected under the
collective agreement Exhibit ‘F’ and secondly that it
was a nullity.
We are afraid however
that we cannot acede to this request. The learned trial
judge rightly in our view recognised the importance of
determining which contract of employment governed the
relationship between the parties at the date of the
termination of the employment. She concluded and
rightly so in our view, that it was the Exhibit ‘2’
emphasising further that the contention that it was
based on the Exhibit ‘F’ is baseless.
This finding cannot be
faulted. First while the Exhibit ‘A’ identified the
article under which the termination was effected as
Article 1 subsection 7(d) of the Rule of Service, the
Exhibit ‘2’ is nevertheless described on the cover as
“Rules of Service and conditions of the Senior Staff of
the SSNIT. Thus, even if when he was appointed as a
Junior Officer the contract that was to govern their
relationship was also whether rightly or wrongly
described in the Exhibit ‘G’ as rules of service, the
plain truth is that it was rules of service that
governed junior, not senior officers. To contend that
it is the same rules of service tendered at the hearing
as Exhibit ‘F’ that governed the relationship between
him and his employers, even in his position as a senior
officer is preposterous.
Indeed his own
confession that in 1981 he ceased to be governed by the
collective agreement and that he became a member of the
Senior Staff Association belies his contention. Since
at the trial the unchallenged testimony shows that the
senior officers are governed by the rules of service and
not the collective agreement, this ground of appeal
clearly fail.
Again, we find no merit
in the ground 4(1). It was submitted with respect to
this ground that the learned trial judges determination
of an issue which was never raised at the trial and was
not even germaine to the matters in dispute, is not
supported by the record. It was however urged upon us
that since by that determination she was in offence of
the plain rule in Dam vrs: Addo 1962 2 GLR.200 at 204 –
206, namely that a court must not proprio mutuo
substitute its own case for a party, we are bound not
only to reverse the finding but reverse the entire
decision.
But, again we find the
criticism of the learned trial judge most unjustified.
A cursory reading of her judgment shows that her
reference to S.20 of article 14 (the alleged finding
complained of) was not meant to be a substitution of the
case set up by the respondents — namely that the
termination was effected under Article 1 sub(d). Indeed
no where in her judgment did she think that the
termination falls or was effected under that rule. Her
reference to the said article was merely (1) to point
out what terminal benefits the appellant was entitled to
on the termination of his employment and (2) to
demonstrate as indeed the evidence on the record
justified that, he indeed recovered all his just
entitlements as pertains under the Article 20 sub.20.
Indeed it was this finding that, namely what benefits
accrued to him under a lawful termination that as
although as appellant counsel has rightly pointed out
was not in issue, that made her conclude finally that
indeed the whole exercise was lawful; based on the
simple reason that appellant was never denied any of his
just benefits. The appeal based on this ground fails.
The next ground of
appeal raises the question of whether or not the judge
finding that junior members of staff may participate in
disciplinary proceedings involving a Senior member of
staff is borne out by the evidence on the record.
In his evidence in
chief given on the 16th of May, 1994, the appellant
disclosed as his reasons for challenging the legality of
the two junior persons presence on the committee the
fact that it was “morally improper”. Furthermore he
attributed his failure to raise objection to their
inclusion to his ignorance that they were junior staff.
When another opportunity arose even under
cross-examination for him to explain what he meant by
the charge that the committee was improperly
constituted, he could not specify which rule of law or
procedure has by the inclusion of these two gentlemen
been violated.
When questioned on the
issue his answer was:
“I am not aware of the
capacity in which Onuma and Eshun sat on the committee
but I feel they are not qualified to sit on a committee
investigating a matter involving two senior staff
(emphasis ours:)
As against this
evidence based purely on morality and personal feelings
we have evidence from the respondents that:
The committee was
appointed by the management and (2) further that these
two sat on the committee not in their personal
capacities as junior officers but as lawfully appointed
(by their own) representatives of the two departments
they work in and which departments are legally entitled
to serve on the disciplinary committee—namely the public
relations department and the CDR. The witnesses had in
early procedures showed in his evidence in chief that
their disciplinary committee system is based on
management representatives and representatives of
identifiable bodies, the respondent reaffirmed their
position (in their answer to a question posed by the
court.) I reproduce same.
“Do I understand you to
mean that the membership is permanently represented by
departments and as and when a case arises a department
select who should represent that particular depart."
(SIC)
A. Yes, and sometimes
within a year the members are the same, but where a case
arises and a member representing that particular
department has travelled or is not around the head of
department can nominate any other body to represent the
department"
In the action before
the learned trial judge the burden of establishing that
the inclusion of the two men was in contravention of the
laid down procedures and regulations of the trust lay on
the party alleging same, the appellants. Having failed
to specify which rule have been breached, having closen
rather to rely on morality and emotions and so having
clearly failed to discharge the evidential burden that
lay on him it is totally wrong to castigate the learned
trial for opting for the respondents version on these
essential matters.
Surely with his total
failure to lead any scintilla of evidence on his
allegation. It is reprehensible for him to demand that
the respondent who did not bear the initial were bound
to call further witnesses to substantiate the evidence
of the D.W. 1 that the junior officers were lawfully
appointed by their members to represent them on the
committee. We find no merit in this ground of appeal
and dismiss same accordingly.
Ground 4(3) states:—
“There is no evidence
to support the finding of the learned judge that the
Personnel Manager was mandated to sign the Exhibit ‘A’
(the letter of termination).
The appellants
complaint, as can be seen from his pleadings and his
evidence in chief and under cross-examination is that
Mr. Glymin who signed the Exhibit ‘A’ has no power to
dismiss him and consequently has no power to sign the
Exhibit ‘A’. The trial judge investigated this
complaint and quite rightly in our view came to the
conclusion that the termination was done by the body
authorised to do so and Glymin merely signed under
mandate, but not in his position as the authority
terminating the employment. We are in complete
agreement with this finding. The evidence of the
signatory, Mr. Glymin who is the head of Administration
is on the record. We have no reason to disbelieve his
assertion. The letter Exhibit ‘A’ clearly shows, he was
not even doing the termination, but that it was
management who was ordering it. The case of Blay-Markeh
vrs: Ghana Airways Corporation 1972 2 GLR. 254 relied on
by appellant counsel does not help the appellants
cause. If anything it rather destroys his case.
In this case
Blay-Merkeh sued the corporation because, as unlike the
situation in this present case his dismissal was not
sanctioned by the body authorised to dismiss him which
at the time was the board.
In this action, where
the appellants allegation is that his appointment has
been unlawfully terminated, as was found by the trial
judge, we are satisfied that the action was carried out
by the body — authorised to do so, the management. The
administrative manager merely conveyed the decision of
management to the appellant.
In any case, the issue
raised now by this ground of appeal does not seem to be
the grievance raised by the appellant in his writ. I
reproduce the relief I sought.
“the said termination
letter was not signed by the General Manager
(Administration) in consonance with the laid down
procedures and regulations of the Trust.”
Be that as it may, we
find no merit in this ground as we think there was ample
evidence to justify the finding. The last ground of
appeal contains the omnibus ground that the judgment is
against the weight of evidence. However all the matters
raised therein, the constitution of the committee,
whether the article 1 subsection 7(d) of Exhibit ‘2’
applies to the appellant, whether the termination was
wrongful, incompetent and a nullity etc. are all matters
we have extensively dealt within the other grounds of
appeal. We have found all the findings of fact
supported by the evidence on the record. We have found
the termination was lawful, it being in accord with the
rules and Regulations of the Trust. We think the
learned trial judge – decision is sound both in law and
fact. It follows this appeal fails and the same is
accordingly dismissed.
MRS. G. T. WOOD
JUSTICE OF APPEAL
BENIN, J.A.:
I agree.
A. A. BENIN
JUSTICE OF APPEAL
AFREH, J.A.:
I also agree.
D. K. AFREH
JUSTICE OF APPEAL |
