|
_______________________________________________________________________________
JOYCE BAMFORD-ADDO, J.S.C.:
This is an appeal against the
judgment of the Court of Appeal
dated 26th November 1998
reversing a judgment of the
Accra High Court dated 28th May
1997. Dissatisfied with the said
judgment of the Appeal Court,
Appellant filed another appeal
to the Supreme Court. The
grounds of appeal are:
"a) The judgment was against
the weight of evidence adduced
and against natural justice
b) The cost awarded was
excessive.
c) Other grounds will be filed
when the Record of Appeal is
ready"
The facts of the case are as
follows:
The appellant herein was
plaintiff in the case before the
High Court. The defendant was
the Commercial Bank, employer of
the plaintiff. The plaintiff
sued the Defendant and won his
case at the High Court, but the
Appeal Court reversed that
decision and he has now appealed
to this court. He would be
hereinafter be referred to as
plaintiff and the bank as
defendants. The plaintiff's
claim against the defendant was
for:
A declaration that his purported
dismissal with loss of benefits
from his employment with the
defendant by the Board of the
Defendant which was communicated
to him by the General Manager on
or about the 4th November, 1994
was ultra vires, null and void
and ought to be set aside.
In his Statement of Claim (p.2
of the Record) plaintiff pleaded
that when he was appointed by
the defendant it was a condition
in the defendant's offer of
appointment that, on acceptance,
the plaintiff would be deemed to
have agreed that his employment
would be governed by the Staff
Service rules (Exhibit B at
77-82 of the Record). He further
pleaded that:
On the 4th of November 1994, the
defendant purported to summarily
dismiss him the plaintiff from
the said employment with
consequential loss of earnings
allegedly for unspecified and
unproven acts of misconduct by a
written Memorandum signed by the
General Manager and Deputy Head
of Human Resources and
Development on behalf of the
Board of the defendant.
Particulars of Wrongful
Dismissal were that:
(1) The plaintiff was condemned
by being summarily dismissed by
the Board of the Defendant Bank,
and in blatant violation of its
own staff rules and in
contravention of the rules of
natural justice. That the
plaintiff was not allowed to
hear the evidence brought
against him let alone to rebut
the case against him.
(2) That the body which
purported to dismiss the
plaintiff was under a duty to
act judiciously and fairly, yet
it dismissed the plaintiff
administratively.
(3) That by the provisions of
the Staff rules 4.1, he should
have been tried for the alleged
misconduct by an unbiased
disciplinary committee in the
exercise of its judicial
functions after he had been
given notice of the charges of
misconduct and the right to be
heard in answer to the charges.
(4) Rule 4.2 states that after
the hearing which did not take
place the Disciplinary Committee
should have drafted its
recommendations to the Executive
Committee in a logical
judgment-like fashion by giving
cogent reasons for its
conclusions.
(5) That under Rule 4.3, the
Executive Committee had power to
confirm or vary the finding of
the Disciplinary Committee. It
also had power to give the
plaintiff a hearing.
(6) That by rule 4.4, the
plaintiff had a right of appeal
to the Board of the Defendant
Company.
(7) By Rule 7.3, the Board had
jurisdiction to exercise
Appellate jurisdiction. It is
therefore contended that the
Board did not have original
jurisdiction to dismiss the
plaintiff. Even if it did, which
is denied, the decision of the
Board was arrived at in
contravention of the rules of
natural justice and hence ought
to be set aside. For even if the
Board had original jurisdiction
to discipline the plaintiff, the
Board was under a duty to act
judicially, which it failed to
act as such. The defendant was
unable to prove any act of
misconduct.
The defendant denied each and
every allegation of fact
contained in the plaintiff's
Statement of Claim.
The case was tried at the High
Court Accra after which the
Trial Judge gave judgment for
the plaintiff on 28th May 1997.
This judgment of the High Court
was reversed on appeal by the
Court of Appeal and dissatisfied
with this the
plaintiff/appellant herein has
appealed to the Supreme Court on
the following two grounds of
appeal.
1. That the judgment was
against the weight of evidence
adduced and
2. That the disciplinary
authorities of the defendant
bank failed to observe the rules
of natural justice
The rule of natural justice as
defined in Osborns Concise Law
Dictionary is as follows:
"The courts in the interest of
fairness impose certain
obligations upon those with
power to take decisions
affecting other people. These
obligation arise from the rules
of natural justice which
although "sadly lacking in
precision have generally been
subsumed under two heads, the
audi alteram partem" rule and
the "nemo judex in sua" rule. By
virtue of these rules decision
makers must act fairly, in good
faith and without bias and must
afford each party the
opportunity to adequately state
his case".
Natural justice is actually
fairplay in action and is
applicable to the ordinary
courts, adjudicating tribunals
and administrative bodies which
have the power to adjudicate in
disciplinary cases, and which
make decisions affecting rights
of other persons. In other
words, the fundamental rules of
natural justice include trial
and strict adherence to the
rules of procedure applicable to
the proceedings.
In Spackman v. Plumstead
District Board of Works (1885)
10 App. Case P.299 at 240 Lord
Selbournce said:
"There would be no decision
within the meaning of statute if
there were anything of that sort
done contrary to the essence of
justice".
It has long been held in many
cases that a decision which
offends against the principle of
natural justice is outside the
jurisdiction of the
decision-making authority see
also AG vr. Ryan (1980) AC 718.
The requirements that the rules
of natural justice be applied by
adjudicating authorities even
where it is not stated in any
law should be implied by those
authorities. Lord Russel in
Fairmount Investments Ltd. v.
Sec. Of State for the
Environment (1976) 1 W.L.R. 1255
at 1263 said
''...... it is to be implied,
unless the contrary appears,
that Parliament does not
authorise by the Act the
exercise of powers in breach of
the principles of natural
justice, and that parliament
does by the Act require in the
particular procedures,
compliance with those
principles."
As stated also in Wiseman v.
Bornemen (1971) AC 297 per Byles
J.
"It seems to me that the board
are wrong whether they acted
judicially or ministerial, I
conceive they acted judicially
because they had to determine
the offence, and they had to
apportion punishment as well as
the remedy. That being as a long
cause of decisions beginning
with Dr. Bentey's case and
ending with some very recent
cases establish that although
there are no positive words in a
statue requiring that the party
shall be heard yet the justice
of the Common Law will supply
the omission of the legislature"
Therefore all Judicial
administration decisions made in
breach of the audi alteram
Partem rule would be null and
void. The application of the
rules of natural justice is so
fundamental to fair procedure
and even includes the rule
against bias since if only one
party in a dispute is heard, the
other would be seriously biased
and so the final decision would
be useless, that other party
would have been unjustly
condemned without hearing his
side of the case. In such a case
it cannot be said that there had
been fair administration of
justice when in fact in such a
case there would have been no
justice at all. However it is
not necessary that the procedure
to be followed in a hearing by
administrative bodies and
tribunals should be based on
that of a court proceedings, the
hearing need not always be an
oral hearing, provided the rules
of procedure which bind the
administrative authority does
not require "personal hearing".
Where personal hearing is
required as in Rule 4:3 of the
Bank rules stated above, the
accused official must be heard
personally. Further the general
notion of a fair hearing extends
to the right of a person accused
to have notice of the actual
charge against him i.e. by
serving him with charges and by
giving him the opportunity to
present his defence, based on
evidence provided in support of
the charge against him.
As said by Lord Denning of
administrative bodies in the
case of Abbot v. Sullivan (1952)
1KB 189.
"These bodies, however, which
exercise a monopoly in the
important sphere of human
activity with the power of
depriving a man of his lively
hood must act in accordance with
the elementary rules of justice.
They must not condemn a man
without giving him an
opportunity to be heard in his
own defence and any agreement or
practices to the contrary would
be invalid"
In this case the administrative
body trying the plaintiff, who
suffered the highest and
toughest sanction of dismissal,
should in the cause of fair
trial have been served with
proper disciplinary charges and
given adequate notice of the
date of hearing as well as be
given the opportunity to be
heard. The mere fact that the
rules of the Bank did not
mention this does not relieve
defendant of the duty to comply
with the rules of natural
justice and fair trial. Just as
in a civil proceeding proper
service of notice on a defendant
is a condition precedent to a
fair trial so also in this case
a proper notice to plaintiff is
a sine qua non to a fair hearing
of the case against him. If this
is neglected to be done a final
decision would be declared a
nullity.
See Tabiri v. Appiah (1987-88) 2
GLR p. 189 C.A..
In that case Plaintiff's failed
to serve notice on the Defendant
or his counsel.
The hearing of the case
proceeded in their absence.
Held "The decision was null and
void"
Also in criminal cases a trial
should take place normally in
the presence of the accused with
some few exceptions.
See the constitution 1992
provides in Article 19(1) as
follows
"A person charged with a
criminal offence shall be given
a fair hearing within reasonable
time by the court."
The requirements of a fair trial
are set out in Article 19. In
Article 19(3)
"The trial of a person charged
with a criminal offence shall
take place in his presence
unless
(a) He refuse to appear before
the court for the trial to be
conducted in his presence after
he has been duly notified of the
trial: or
(b) He conducts himself in such
a manner as to render the
continuation of the proceedings
in his presence impracticable
and the court orders him to be
removed for the trial to proceed
in his absence"
Article 19(3), especially deals
with the duties of adjudicating
authorities and provides as
follows:
"Article 19(3) An adjudicating
authority for the determination
of the existence or extent of a
civil right or obligation shall,
subject to the provisions of
this Constitution be established
by law and shall be independent
and impartial and where
proceedings for determination
are instituted by a person
before such an adjudicating
authority, the case shall be
given an adjudicating fair
hearing within a reasonable
time"
As can be seen from Article
19(1) and (3) all courts and
adjudicating authorities, are
required to give a fair hearing,
this requires that notice of
proceedings be given to the
person affected by any decision
of the adjudicating authority
and that he be given the
opportunity to defend himself.
Furthermore, Article 23 says
that administrative bodies and
officials shall act fairly and
acting fairly implies the
application of the rules of
natural justice which have been
elevated to constitutional
rights and are binding on all
adjudicating and administrative
bodies as well as courts and
tribunals. According to Article
23:
"Administrative bodies and
administrative officials shall
act fairly and comply with the
requirements imposed on them by
law and persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal".
Consequently the Defendant Bank
which took disciplinary action
against the Plaintiff through
procedures provided by the Banks
Disciplinary procedure rules
should have followed the said
procedure in those rules and
also bound apply the rules of
natural justice.
In the case of L'iar Liquide
Ghana Ltd. v. Amin and others
(191) GLR p. 460 it was held by
the Court of Appeal unanimously
that:
"Whenever people were given
power by law to consider facts
and to arrive at conclusions
affecting the fate of human
beings, they were performing a
quasi-judicial function and if
the body violated the rules of
natural justice the courts had
power to declare the procedure
invalid, as well as the
conclusions there from. In the
present case the administrative
inquiry violated the two
cardinal principles of natural
justice namely a man must not be
judged in his own case. Since
the evidence showed that the
respondents were threatened with
incarceration if they did not
give answers the investigators
expected to hear, and they were
also not given the chance to
confront their accusers, nobody,
given such a trial could
seriously be said to have been
heard. And since the members of
the committee of inquiry
included the same people who
arrested the plaintiffs and sent
them to the Police Station
members who were very much
interested in the subject, they
were investigating, they were in
the position of the accusers
being made judges in their own
case, consequently both the
inquiry and the dismissal of the
respondents were unlawful. R v.
Sussex Justices; Ex parte
McCarthy (1024) 1KB 256 and
dictum of Scott LJ in Cooper v.
Wilson (1937) 2KB, 309 at 344 CA
applied".
Since the Disciplinary
authorities of the defendant
bank failed to apply the rules
of natural justice there was no
fair trial, and this is fatal to
their decision to dismiss the
plaintiff with loss of benefits.
The appellant complaints that
the rules of natural justice
wave breached by the defendants'
disciplinary authority, in that
Ghana Commercial Bank Ltd. Staff
Service Rules effective 16th
September 1994 "Exhibit B" were
not complied with by defendant,
which also failed to apply the
rules of natural justice in the
disciplinary proceed taken
against him resulting in his
dismissal from the bank.
Considering the facts of this
case this is a legitimate
complaint. The facts are that
plaintiff received two queries
from the Inspector/Audit
Division of the bank on 25th
March 1994 about the plaintiff's
signature on Draft No. 177036
dated 17-7-92 for authorising
the payment of £15,000.00 and
also a cable authorising payment
of US$13,559.60 on behalf of
White Chapel in "Exhibit E" and
in "Exhibit G" and was asked to
give reasons why internal
entries were not passed to the
debit of customer's account or
show the vouchers passed to give
effect to the payment made on
behalf of customers. Plaintiff
replied to these queries in
"Exhibits F and H" but was
afterwards immediately suspended
by letter from the Human Res. &
Dev. Division. The letter was
signed by the General Manager
and the Deputy head of the said
Division on 31st March 1994 see
"Exhibit J". On 7th April 1994
the plaintiff and other
officials were told by the
Managing Director that they were
being taken to BNI for
interrogation in respect of
alleged fraudulent transfers.
The plaintiff was accordingly
interrogated by the BNI. The
findings of BNI were embodied in
a 25-page report, which
contained a detailed account of
the investigation carried out in
"Exhibit K". This report
incidentally exonerated the
plaintiff at p.22 of the report
as follows:
"Paul Kofi Aboagye cannot also
been held liable for acting his
good faith and performing a duty
within his competence."
After receiving the BNI report
the Disciplinary Committee of
the Bank initiated disciplinary
proceedings under Rule 4:1 of
the said Staff Service Rules in
Exhibit B. Then the Disciplinary
Committee without serving any
charges or giving notice or
affording a hearing to
plaintiff, sent its
recommendation to the Executive
Committee see "Exhibit M" which
says of the plaintiff:
"Messrs P. K. Aboagye and 3
others
The above-named four officers
counter-signed some drafts/telex
messages without satisfying
themselves about the genuineness
of the transactions. The
committee noted that the drafts
and telex messages were only
counter-signed by the four and
did not originate them. Some of
the funds remitted are still
outstanding".
The report continued:—
"MISCONDUCT
For being negligent and failing
to take necessary precautions to
protect the interest of the
bank, the committee recommends
that:
The plaintiff and 3 others:
i) Should be warned for
negligence of duty (See Rule
3(4) of "Exhibit B"
ii) Their salaries should be
reduced to the first notch of
their present scale".
The above recommendations were
referred to the Executive
Committee in "Exhibit N". The
Executive committee also
recommended that "Mr P. K.
Aboagye should be warned for
negligence of duty and be
reduced by four (4) notches of
his grade". This is an increase
in plaintiffs' punishment.
Afterwards a report of the
Executive Committee went to the
Board see Exhibit L".
And in the minutes of the bank
it can be seen that the Board
decided as follows:
"Mr. P. K. Aboagye should be
dismissed from the service of
the Bank and action taken to
recover all lost monies".
Consequently, on 4th November
1994 a written memorandum signed
by the General Manager and the
Deputy Head of Human Resources
and Development Division of the
Bank was addressed to the
plaintiff in "Exhibit C", to the
plaintiff which stated that:
"The Board at its meeting held
on 27th October 1994 noted the
extent of your involvement in
the malpractices at our Foreign
Operations Branch and decided
that you should be dismissed for
gross misconduct. You are
accordingly dismissed from the
service of the bank
forthwith..."
On the 28th November 1994 the
plaintiff petitioned the Board
in "Exhibit D" for
reconsideration of the decision
but on the 15th October 1995,
the plaintiff received the
results of his petition, to the
effect that his petition has
been refused by the Board.
The plaintiff thereupon
initiated action at the High
Court. It is the case of the
plaintiff/appellant that there
had been breaches of the rules
of natural justice with regard
to the disciplinary proceedings
against him, and the trial court
held that for that reason the
plaintiff's dismissal was
unlawful. But on appeal by the
defendant bank to the Court of
Appeal, the said court reversed
the trial courts decision and
found for the defendant bank
i.e. Ghana Commercial Bank. It
was the case of the plaintiff
the General Manager (Human
Resources and Development
Division) who suspended the
plaintiff on the 31st March 1994
is the same person who was a
member of the disciplinary
committee established under Rule
(5) 1 of the Staff Rules.
Also that the representative of
Inspector/Audit Division who
investigated and queried the
plaintiff and received his
explanation also served on the
Disciplinary Committee and that
in the result the same two
people who investigated the
conduct of the plaintiff
prosecuted him also sat in
judgment over him. By this
submission the plaintiff was
saying that there had been a
breach of the maxim "nemo Judex
in Sua" rule namely that "No man
should be a judge in his own
cause. This rule is designed to
eliminate bias and to ensure
fairness in the hearing of a
case against an alleged
offending persons facing a
disciplinary inquiry. This is a
legitimate complain as can be
seen, in the case of Cooper v.
Wilson (1937) 2 KB 39 where it
was held that the presence of a
Chief Constable with the Watch
Committee during the hearing of
an appeal of a Police Sergeant
who had been dismissed by his
chief was fatal to the validity
of the Watch Committees
decision.
Lord Justice Scott said:
"The risk that a respondent may
influence the court is so
abhorrent in English notion of
justice that the possibility of
it, or even the appearance of
such a possibility is sufficient
to deprive the decision of all
judicial force and to render it
a nullity. The procedure adopted
by the bank breached the rule of
"Nemo judex in sua" rule, a part
of the rule of natural justice".
In this case also the people who
charged him and suspended him
and who had an interest in the
case tried and convicted him.
This is a breach of the rule of
natural justice, that accusers
cannot be judged in their own
cause. For this reason the
dismissal of the plaintiff is
void. See L'iar Liquid Ghana v.
Admin Supra. On the issue of
"audi alterem partem" rule,
namely: hear the other party,
the plaintiff complained that:
a) After the respondent bank
received the answer to his query
sent to him on 30th March 1994,
it was the duty of the
defendants to formulate the
relevant charges against him and
afford him adequate opportunity
to reply or to plead to them,
but this was not done.
b) that also the plaintiff
should have been informed and
served with notice in advance of
the intended hearing of any
charges against him by
defendant. That if this had been
done then the plaintiff would
have been aware of the impending
disciplinary trial and may have
been aware of the impending
disciplinary trial and may have
under the requirements of Rule 4
(1) of the Ghana Commercial Bank
Ltd Staff Conduct and Discipline
Rules, applied or requested for
a personal hearing to the
Disciplinary Committee. Since
the plaintiff knew nothing about
any disciplinary charges being
tried by the Committee against
him he could have applied for a
personal hearing, to his
detriment. Plaintiff also did
not know the contents of the BNI
report which had been sent to
the defendant to enable him to
give any comment on it and he
did not receive any other report
either that of the Disciplinary
Committee of the Executive
Committee so he could not have
defended himself until he
received the letter of dismissal
dated 4th November 1994 from the
procedure being taken against
him.
According to Rule 4(2) the
disciplinary committee should
have drafted its recommendation
to the Executive Committee in a
logical judgment like fashion by
giving cogent reasons for its
conclusions but there is no
indication that even this was
done, since no such reports and
recommendations were made
available for study by the
plaintiff.
Rule (4) 3 stipulates that:
"The executive committee should
carefully consider the
investigation report, the
employees defence statements,
the seasoned recommendations of
the Disciplinary Committee and
examine whether the facts have
been brought out in a fair and
impartial manner. Based on its
assessment, the executive
committee may arrive at its own
conclusions and may even differ
with the recommendations of the
Disciplinary Committee. It may
fix a reduced or enhanced
penalty or may approve of the
recommendations of the
Disciplinary Committee. In cases
where the penalty is enhanced,
the Executive Committee may do
so after granting a personal
hearing for the employee if no
such hearing was given by the
Disciplinary Committee".
The Disciplinary Committee
reports in Exhibit "M"
concerning plaintiff is as
follows:—
"Mr. P. K. Aboagye and others
The above named four officers
countersigned some drafts/telex
messages without satisfying
themselves about the genuineness
of the transactions."
Committee noted that the drafts
and telex messages were counter
signed by the four and did not
originate from them. Some of the
funds remitted are still
outstanding.
They: i) should be warned for
negligence of duty
ii) their salaries
should be reduced to the first
notch of their present scale".
But the executive committee in
Exhibit "N" increased the
punishment of plaintiff and said
"Mr. P. K. Aboagye should be
warned for negligence of duty
and reduced by four (4) notches
of his grade". The said
committee did not give plaintiff
a personal hearing before
enhancing his sentence.
Also in Exhibit L the entry in
respect of the Board decision is
that: "The board studied the
length the special reports on
the lapses at the Foreign
operations branch. It expresses
grave concern about the general
look of supervision and
non-observance of the laid down
rules at the branch. It noted
further that the irregularities
had persisted for a long time
without being detected.
The board then took the
following decisions that Mr. P.
K. Aboagye should be dismissed
from the service of the bank and
action taken to recover all lost
monies".
Rules 6(1) and 6(2):—
6:1 "The Executive Committee
shall be the Disciplinary
authority in respect of all
categories of employees up to
and including the grade of
Assistant Managers"
6:3 "The Board will be the
Disciplinary Authority in
respect of officials above the
grade of Assistant Manager, but
all such cases will be referred
to the Board through the
Managing Director".
The appellant is above the grade
of Assistant Manager, he is
Senior Manager and therefore the
board is the disciplinary
authority over him. Since he had
not had the opportunity of being
personally heard by the
investigating committee, for the
reasons he had given, he should
have been given a personal
hearing by the Executive
Committee, which enhanced his
and also by the Board which
dismissed him—enhancement of
punishment of the Board which is
the disciplinary authority over
Plaintiff. The Executive
Committee in Rule 4(3) was
required to give a personal
hearing to an employee who had
not been heard personally by the
Disciplinary Committee if the
sentence or punishment
recommended by the disciplinary
committee is to be enhanced
neither but the executive
committee nor the Board complied
with the rule dealing with
enhancement of punishment.
Plaintiff was also not given a
personal hearing by the Board
which enhanced his penalty, to
that of dismissal from the Bank.
By parity of reasoning if the
Executive Committee is required
to give a personal hearing to an
accused officer who is subject
to its disciplinary authority
before enhancing his sentence,
then the Board which is also the
disciplinary authority of the
plaintiff should, by necessary
implications have also
personally heard him before
ordering his dismissal from the
Bank in compliance with Rule
4:3. The reason for this
requirement when it comes to
fixing the penalty or
punishment, is to enable an
accused and convicted official
to plead in mitigation of
sentence, where he was not been
given an opportunity to be
personally heard at the
Disciplinary Committee, where he
could have taken up that matter.
For failure to comply with Rule
4:3 the Board breached the rules
of fair play as well as its own
disciplinary procedure Rules and
condemned and enhanced the
punishment of the Plaintiff
without giving him a hearing
contrary to the "audi alterem
Rule". As already stated above a
decision given without regard to
the principles of Natural
Justice is void. It is my
considered opinion that in this
case also failure to apply the
rules of natural justice and the
procedure rules of the Bank
renders the decision of the
Board and dismissal of plaintiff
void. In view of this opinion, I
find that the High Court was
justified in the decision that
there has been a breach of the
rules of natural justice and
that, consequently, the
plaintiffs dismissal was
unlawful. For the above reasons
I hold that the Court of Appeal
erred in reversing the High
Courts decisions. This finding I
believe was a result of wrong
application of the rules of fair
hearing and natural justice by
the majority of the court. An
example of some of the errors
committed is that in the opinion
of Mr. Justice Ofori-Boateng J.
A. "because of the knowledge and
experience of Mr. Aboagye, he
need not be reminded of his
right". But the rules of fair
trial include the audi alteram
partem rule, which implies that
it is the authority exercising
disciplinary power ought to
afford the Plaintiff the
opportunity of being heard, he
should be informed of the
charges and date and place of
trial. It is only by so doing
that the plaintiff would have
been enabled to present his
defence. The face that he ought
to have known or be presumed to
know the rules, does not relieve
the bank from conforming with
the rules of a fair trial as
referred to in above. In any
case plaintiff cannot exercise
his right in Rule 4 (1) of the
rules, to ask for a personal
hearing. When he has not been
served with any charges or given
notice of hearing nor given the
opportunity to defend himself
against these charges except
when he is informed that a
disciplinary hearing was going
on. It is not right to merely
assume that the plaintiff should
have known his rights.
Plaintiffs' rights cannot be
wished away by a mere
presumption, and furthermore a
query is not the same as a
disciplinary charge or notice of
an on going disciplinary
proceedings. The two queries in
"Exhibit E" and "Exhibit G"
merely asked the plaintiff to
give reasons why he signed the
draft No. 177036 dated 17/7/92
for £15,000 and a cable
authorising payment of
US$13,559.60 on behalf of White
Chapel without ensuring that the
customers account were debited
and why internal entries were
not passed to the debit of
customers and to confirm whether
the signature on the two
transactions were that of the
plaintiff which he did. Surely
these queries cannot by any
stretch of imagination be
considered or likened to a
disciplinary charge or to
notice. Nor did the queries
refer to any disciplinary charge
against him. Another example is
the interpretation put on Rule
4(3) by Justice Ofori Boateng.
He said:
"However it is wrong noting that
in Rule 4(3) the duty on the
Executive Committee to give a
personal hearing to the victim
is not a mandatory one. It is
discretionary. The Executive
Committee may therefore, for its
own reasons enhance the
punishment without giving any
personal hearing. In this case
the Executive Committee enhanced
the respondents punishment
without giving him a personal
hearing. This behaviour by the
Executive Committee is within
the rules and not in violation
of them".
This interpretation was
erroneous since the
discretionary power of the
Executive committee or by
implication that of the Board to
enhance punishment can only be
exercised after giving a
personal hearing to the
plaintiff or employee under the
above quoted rule. Therefore it
is wrong for the said Learned
Judged to hold that the
behaviour of the Executive
committees is within the rules,
on the contrary it is a
violation of Rule 4(3) says:
".........................
In cases where the penalty is
enhanced the Executive Committee
may do so after granting a
personal hearing to the employee
if no such hearing was given him
by the Disciplinary Committee."
This is a mandatory provision—a
prerequisite to the exercise of
the discretionary power to
enhance punishment. The same
refers to the Board. In Kauda v.
Government of Malaya (1962) AC
322 it was held in holding 2
"that the failure to supply the
appellant with a copy of the
report of enquiry which
contained matter highly
prejudicial to him and which had
been sent to and read by the
adjudicating officer before he
sat to inquire into the charge
amount to a failure to afford
the appellant "a reasonable
opportunity of being heard" in
answer to the charge, within the
meaning of Article 135(2) of the
constitution and to a denial of
natural justice".
The dismissal of Kauda in the
above named circumstances was
therefore declared invalid as
made contrary to the rules of
natural justice. In the same
vein the failure to observe the
provisions of Article 23
regarding issue of a fair
hearing in the circumstances of
this case, nullified the verdict
of the Board of the defendant
bank in respect to the dismissal
of plaintiff.
Finally in considering the
question whether or not in any
particular case there has been a
failure of natural justice, the
fact that there was evidence to
support the charge preferred
against the plaintiff namely
Negligence, is immaterial to the
determination of the issue
whether the plaintiff had not
been given a fair trial. Lord
Denning the case of Annamunthodo
v. Oil Field Workers Union
(1961) AC 945 on this point
said,
"Mr. Lazarus did suggest that a
man could not complain of
failure of natural justice
unless he could show that he had
been prejudiced by it. Their
Lordships cannot accept this
suggestion. If a domestic
tribunal fails to act in
accordance with natural justice,
the person affected by their
decision can always seek redress
in the courts. It is a prejudice
to any man to be denied justice.
He will not be entitled to
damages if he suffered none. But
he can always ask for the
decision against him to be set
aside."
I think that the Appellant has
succeeded in showing that he did
not receive a fair trial by the
Defendant Bank in respect of the
disciplinary proceedings held
against him and that his
conviction and the decision to
dismiss him for negligence is
null and void. The Court of
Appeal erred in reversing the
decision of the High Court. The
appeal of Appellant is allowed
and the decision of the trial
High Court wholly restored,
including the award of damages
granted to the Plaintiff by the
High Court.
AMPIAH, J.S.C.:
I agree
ADJABENG, J.S.C.:
I agree that the appeal be
allowed. After perusing the
record in this matter and
considering the submissions made
on both sides, and the
authorities cited, I am of the
view that the trial judge was
right in holding that the
dismissal of the appellant was
null and void as he had not been
given a hearing. Some of the
justices of the Court of Appeal
took the view that giving the
appellant a query amounted to
giving him a hearing. And they
relied on the Court of Appeal
case of Aryee Vrs. S.C.C.
[1984-863] 1 GLR 424, C.A. and
the case of the Republic Vrs.
Ghana Railway Corporation, Ex
Parte Appiah [1981] GLR 752. The
above two cases can be
distinguished from the present
one as the former concerned the
termination of an appointment in
accordance with the terms of the
contract between the parties
and, in the other case, the
applicants had earlier been
notified to appear before a
board of enquiry. Quite apart
form this, some of the judges of
the Court of Appeal, in the
present case, lost sight of the
fact that the appellant had a
right of a personal hearing
under Rule 4(1) of the Staff
Rules, Exhibit 'B'. Rule 4(1) of
Exhibit 'B' provides as
follows:—
"The Disciplinary Committee may
be vested with the authority to
offer a personal hearing to the
delinquent employee if such
hearing is requested for by the
employee, and the Committee by
majority opinion feels the need
for such hearing in order to
afford a fair opportunity to the
employee. The authority of the
Disciplinary Committee to offer
personal hearing is, however,
restricted to employees up to
the grade of Senior Managers. In
other cases, the employee's
request may be put up to the
Executive Committee for
consideration".
It is clear from the above rule
of the defendant Bank that the
appellant was entitled not only
to a hearing, but a personal
hearing. Giving him a query
would not, by any stretch of the
imagination, be the same as
giving him a personal hearing.
The trial judge found that the
appellant was not notified of
the proceedings before the
Disciplinary Committee to enable
him decide whether or not to
request for a personal hearing.
To counter this, it has been
argued on behalf of the
defendant/respondent that with
his experience, and after his
receipt of the queries and the
letter of suspension, the
plaintiff/appellant knew or
ought to have known that
investigations were going on and
so he could have requested for a
personal hearing if he in fact
needed it. I am not impressed by
this argument. There is nothing
in the queries or in the
suspension letter which
suggested that there was going
to be proceedings before any
committee. In my view, it is the
duty of any adjudicating
authority to act fairly and with
transparency. Why should the
appellant's or any other
person's fate be decided in
secrecy? What is the point in
doing that? Our 1992
Constitution in Article 23
provides that:—
Administrative bodies and
administrative officials shall
act fairly and reasonably and
comply with the requirements
imposed on them by law and
persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a Court
or other Tribunal."
I do not think that the
appellant was treated fairly in
this matter.
Another serious error the
defendant Bank committed against
the appellant was to order his
dismissal, contrary to the
recommendations of the
Disciplinary Committee and the
Executive Committee that the
appellant be warned and his
salary reduced, and thus an
enhancement of his penalty,
without giving him a personal
hearing. Rule 4(3) of the Staff
Rules, Exhibit 'B' provides as
follows:—
"4(3) The Executive Committee
should carefully consider the
investigation report, the
employee's defence statements,
the reasoned recommendations of
the Disciplinary Committee and
examine whether the facts have
been brought out in fair and
impartial manner. Based on its
assessment, the Executive
Committee may arrive at its own
conclusions and may even differ
with the recommendations of the
Disciplinary Committee. It may
fix a reduced or enhanced
penalty or may approve of the
recommendations of the
Disciplinary Committee. In cases
where the penalty is enhanced,
the Executive Committee may do
so after granting a personal
hearing to the employee if no
such hearing was given by the
Disciplinary Committee."
(emphasis mine)
The provision in the above rule
that the Executive Committee
should give a personal hearing
to an employee if the committee
wanted to enhance the penalty
recommended by the Disciplinary
Committee in case no such
hearing had been given to the
employee, is a commendable
provision. It seeks to give a
fair opportunity to the employee
who finds himself or herself in
such a situation. Having found
the necessity for such a
provision, it is my view that
the application of this
provision should not be
restricted to the Executive
Committee. It must apply to the
Board as well so as to ensure
that fairness that is necessary
in such matters. Unfortunately,
the Board failed to apply this
laudable provision to itself
when dismissing the appellant.
In my view, the Board of the
defendant Bank should have given
the appellant a personal hearing
when it decided to enhance the
penalty recommended by both the
Disciplinary and Executive
Committees. They were wrong in
not giving him this opportunity.
In my view, the Board was also
wrong in altering the finding of
the Disciplinary Committee which
first sat on the matter from
misconduct to gross misconduct.
It is difficult to find the
basis of this new and more
serious finding.
On the whole, therefore, I agree
that the appeal ought to
succeed.
ACQUAH, J.S.C.:
I also agree.
ADZOE, J.S.C.:
This is an appeal against the
judgment of the Court of Appeal
which reversed the trial High
Court judge's decision in favour
of the appellant.
The appellant took action in an
Accra High Court claiming the
following reliefs:
(a) A declaration that the
purported summary dismissal of
the plaintiff with loss of
benefits from employment with
the defendant by the Board of
the defendant communicated by
the General Manager of Human
Resources and Development
division on or about the 4th
November, 1994 was ultra vires,
unlawful, null and void and
ought to be set aside.
(b) A declaration that the
suspension of the plaintiff on
half salary for a period of more
than six months was ultra vires
the Staff Rules and hence
plaintiff is entitled to the
refund of his salary wrongfully
withheld.
(c) A declaration that the
Defendant is therefore not
entitled to treat the plaintiff
as if he were dismissed and
hence the plaintiff is entitled
to his arrears of salary.
(d) Further or in the
alternative damages for wrongful
dismissal and costs.
In his statement of claim the
appellant stated that his
appointment was premised on the
condition that he would agree to
be governed by the Staff Rules.
He claimed that on 4th November,
1994, the defendant purported to
summarily dismiss him and that
the said dismissal was wrongful
by reason of certain factors
which I will soon draw attention
to.
The trial was brief. At the end
of it all the learned trial
judge declared that the
plaintiff's dismissal was null
and void. He gave judgment "for
the plaintiff against the
defendants for all the claims
endorsed on the writ of
summons". He awarded
¢25,000,000.00 damages for
wrongful dismissal with costs of
¢2,000,000.00 against the
defendants.
The defendant appealed to the
Court of Appeal and won. The
plaintiff has now come to this
court praying that the judgment
of the Court of Appeal be set
aside. His ground of appeal
reads as follows:—
"The judgment was against the
weight of the evidence adduced
and against the rules of natural
justice".
Let me say at the onset that the
appellant's ground of appeal is
an apology for professional
expertise. It is the only
substantive ground of appeal
filed and I wish it were better
framed. The appellant is
appealing against the decision
of the Court of Appeal. The
Notice of Appeal says "Take
Notice that the
Plaintiff/Respondent herein
being dissatisfied with the
judgment of the Court of Appeal
dated 26th November, 1998 doth
hereby appeal to the Supreme
Court upon the grounds set out
in paragraph 3 ..." I cannot
imagine what reasons he has to
attack the Court of Appeal
judgment as being against the
rules of natural justice. The
attack is clearly misconceived
and misdirected. There is no
justification for it. It is
misdirected because counsel for
the appellant did not seem to
direct it at the Court of Appeal
Judgment but rather at the
defendant's act of dismissing
the appellant. I am of the
opinion that this portion of the
appellant's ground discloses no
reasonable ground of appeal
against the judgment of the
Court of Appeal. Nowhere in his
submission before this court has
counsel for the appellant shown
what the Court of Appeal did to
render its judgment against the
rules of natural justice. Every
submission made by counsel in
respect of the rules of natural
justice related to the steps
taken by Respondent in
dismissing the appellant. Rule
6(5) of the Supreme Court rules
gives the court power suo motu
to strike out any ground of
appeal which discloses no
reasonable ground of appeal. In
the exercise of that
prerogative, I would delete that
portion of the ground of appeal
which states that the judgment
is against natural justice. In
the result the ground will now
read as follows:—
"The judgment was against the
weight of evidence adduced".
The court will therefore deal
with the appeal on the ground as
amended and try to draw the
right conclusions from the
evidence.
The ground for the dismissal
alleged in the letter dismissing
the appellant was gross
misconduct. The letter reads:
"The Board at its meeting held
on 27th October, 1994 noted the
extent of your involvement in
the malpractices at our Foreign
Operations Branch and decided
that you should be dismissed for
gross Misconduct". The
respondent bank accordingly
particularised the "gross
misconduct" into three acts
namely (1) signing a Draft for
£15,000.00 issued in favour of a
customer who did not have
sufficient funds in its account,
(2) signing a cable authorising
payment of the sum of 13,559.60
dollars on behalf of a customer
without ensuring that the
customer's account have been
duly debited and (3) Neglecting
to ensure that internal entries
in respect of the said two
transactions were passed to the
debit of the two customers'
accounts. The respondent insist
that the appellant was negligent
in the sense that he
countersigned the documents
without checking on the state of
the customers' accounts and
thereby aided the customers to
commit fraud on the bank.
According to the defence, the
financial loss caused to the
bank was due to the default or
wilful act of the appellant. The
respondent also insist that
having regard to the
circumstances of the case, the
summary dismissal of the
appellant was just and proper,
more so because, according to
the respondent the appellant
himself admitted that he was
negligent. The appellant denies
that he acted negligently. His
case was that he counter-signed
the documents which originated
form outside his department
believing that the officers of
the originating department had
made and passed the proper
entries before signing the
cheque and telex message sent to
him to countersign. In his
petition against the dismissal
he re-affirmed his position as
follows:—
"Therefore an officer signing or
countersigning a cheque or telex
message especially outside his
department believes that the
entries have been passed. This
was the practice at that time.
There was the reciprocal trust
among the various departments.
All officials were, like Julius
Caeser's wife, expected to live
above reproach. We worked under
the legal maxim that he who
comes for equity must come with
clean hands. It was under this
set up that I appended my
signature to the two documents
in questions".
When the transaction was
initially discovered, and the
appellant was given a query
requesting him to give reasons
why he signed the transactions
without ensuring that the
customers' account were debited,
he explained the circumstances
in which the documents were
brought to him for signature and
concluded that there was mutual
trust among the officer corps to
ensure the free flow of work.
"If officers were to insist on
seeing entries before
countersigning cheques and
cables (a) work would slow down
and (b) there would be delays in
taking entries to the waste
department".
It must be observed that the
issue involved in the suit was
not as to the alleged misconduct
or negligence of the appellant;
the issue was whether or not,
misconduct or no misconduct,
negligence or no negligence, the
summary dismissal of the
appellant was proper or
wrongful. The appellant's
complaint was, inter alia, that
firstly the authority which
purported to dismiss him lacked
original jurisdiction to do so;
secondly, the dismissal was in
blatant violation of the
defendant's own Staff Rules and
the rules of natural justice
because of apparent bias and
because he was not given a
hearing. The defendant denied
that the dismissal was wrongful.
From the pleadings filed, the
central issue which emerged and
was set down in the Summons for
directions was issue (b) which
reads: "Whether or not the
dismissal of the plaintiff was
carried out in accordance with
the staff rules and or natural
justice or both".
It is clear, therefore, that we
are not dealing with negligence
but the course of conduct
embarked upon by the defendant
in dismissing the appellant. We
will, I think, fall into grave
error if we should give too much
attention and weight to the
alleged misconduct or negligence
levelled against the appellant
and forget what the real issue
is.
The appellant's case is as
follows: Before the dismissal he
was given a query on 25th March,
1994 which he answered on 30th
March, 1994. I have already
referred to the query and reply.
He was then suspended from the
service pending investigations.
This suspension letter was dated
31st March, 1994. The matter was
referred to the Bureau of
National Investigation to
investigate and on 20th April,
1994, the BNI collected a
statement from the appellant,
and other employees of the bank
who were involved in the
transactions. The BNI
investigations Report was
tendered as Exhibit K.
Thereafter the defendant caused
an investigation into the
disciplinary aspect of the case
without notifying the appellant.
The disciplinary investigation
was conducted by the
Disciplinary Committee
established under the Staff
Rules. Its report with the
recommendations in respect of
the appellant was tendered in
evidence as Exhibit M. It was
subsequently forwarded to the
Executive Committee of the
defendant. The Executive
committee studied the report and
reviewed the penalty recommended
by the Disciplinary Committee.
It is the case of the appellant
that he was not given any notice
about these proceedings before
the two bodies and that he was
not given any opportunity of
being heard. The Executive
Committee which under the Staff
Rules had not the power and
authority to discipline the
appellant, appeared to have sent
its revised recommendations to
the Board of Directors which
alone was competent to
discipline the appellant. The
Executive Committee's work is in
evidence as Exhibit N. The
appellant complains that the
Board of Directors also did not
give him notice that they were
going to review the case against
him. So therefore the appellant
has clearly demonstrated that he
was not aware of all the
processes taken by the defendant
in arriving at the decision to
dismiss him.
But the respondent vigorously
and strenuously contended that
the audi alteram partem rule had
not been breached. In the view
of the respondent the appellant
was given all the chance of
being heard. In the first place
the appellant was given a query
which he answered, admitting his
negligence. Secondly, the
appellant had the right to ask
for a personal hearing when the
Disciplinary Committee was
carrying out its investigations
but the appellant did not take
advantage of that opportunity
and, therefore, having failed to
apply to be heard before the
Disciplinary Committee, the
appellant cannot be heard to
complain that he was not given a
hearing. The primary issue is,
therefore, this: Can the
appellant be right in his claim
that the audi alteram partem
rule was breached? To find the
answer, we may have to start by
looking at the Staff Rules which
govern all disciplinary
procedures.
The Rules which are described as
"Ghana Commercial Bank Ltd.
Staff Conduct and Disciplinary
Rules" apply to permanent Staff
of the respondent Bank. Section
2.1.1 describing the scope of
these rules declare that they
"cover general observance of
good conduct, discipline,
integrity, diligence, fidelity
etc". Their scope is without any
express limitation. But it is
clear that in the event of any
employee being found guilty of
any act of misconduct, he would
certainly be penalised. The
penalties vary according to the
facts and circumstances of each
particular case, as section 3.2
suggests:
"The penalties for proven acts
of indiscipline/misconduct
extend over a wide range, from
'summary dismissal' to
'warning'. The nature and
quantum of penalty in each case
will be determined by the
competent authority after taking
various related factors into
consideration".
The appellant is a Senior
Manager and so according to the
rules the competent authority to
determine the penalty in his
case is the Board of Directors
as provided in Rule 6(3): "The
Board will be Disciplinary
Authority in respect of
officials above the grade of
Assistant Manager. But all such
cases will be referred to the
Board through the Managing
Director". The rules are not
well coordinated and it does not
appear very clear whether every
alleged act of indiscipline or
misconduct must necessarily be
investigated first by the
Disciplinary Committee before
action is taken by the
Disciplinary authority. That
however, appears to be the
general procedure at the
respondent bank. The suspension
of the appellant was imposed
pending investigations. The BNI
investigated the criminal
aspect, and the Disciplinary
Committee investigated the
internal disciplinary aspect.
The Staff Rules defines the
procedure before the
Disciplinary Committee. Rules
4(1) provides:
"The Disciplinary Committee may
be vested with the authority to
offer a personal hearing to the
delinquent employee if such
hearing is requested for by the
employee and the Committee by a
majority opinion feels the need
for such hearing in order to
afford a fair opportunity to the
employee. The authority of the
Disciplinary Committee to offer
personal hearing is, however,
restricted to employees up to
the grade of Senior Managers. In
other cases, the employees
request may be put up to the
executive Committee for
consideration".
The rule appreciates the need
for a fair hearing and many an
employee who is facing a case as
serious as that involving the
appellant may wish to clear his
name and maintain his integrity
and keep his employment. An
employee under investigation
can, however, request for a
personal hearing only when he is
informed that an investigation
is being undertaken by the
Disciplinary Committee. The
appellant's right to be heard
demanded that he be informed of
any charges against him. If the
appellant was not notified about
any proceedings before the
Disciplinary Committee, I do not
see how he could be condemned
for not requesting for a
personal hearing. His evidence
is clear and unchallenged that
he had no knowledge of the
disciplinary proceedings. This
is what he told the trial court
in his evidence-in-chief:
"I was wrongfully dismissed by
the defendants. No charge of
misconduct was preferred against
me. I did not appear before any
disciplinary committee before I
was dismissed.
When the respondent's
representative Mr. Joseph
Patrick Darku Wellington gave
evidence, he never showed that
the appellant was given notice
of the proceedings before the
Disciplinary Committee and under
cross-examination this gentleman
admitted that the appellant was
not given the opportunity of
being heard. He was asked, "was
the plaintiff given an
opportunity of being heard", and
his answer was a definite "No".
It stands to reason, upon the
evidence, to accept the
appellant's story that he had no
notice of the proceedings before
the Disciplinary Committee and
that was why he did not apply to
be given a personal hearing.
The Disciplinary Committee
investigation went on behind the
appellant; the committee's
recommendation was that the
appellant be warned and his
"Salary reduced to the first
notch" of his present scale. The
recommendation was forwarded to
the Executive Committee as
required by Rule 4(2) of the
Staff Rules. The Executive
Committee was mandated to
"carefully consider the
investigation report, the
employees defence statements,
the reasoned recommendations of
the Disciplinary Committee and
examine whether the facts have
brought out in a fair and
impartial manner. Based on its
assessment, the Executive
Committee and may even differ
with the recommendations of the
Disciplinary Committee. It may
fix a reduced or enhanced
penalty or may approve of the
recommendations of the
Disciplinary Committee. In cases
where the penalty is enhanced,
the Executive Committee may do
so after granting a personal
hearing to the employee if no
such hearing was given by the
Disciplinary Committee".
It is here important to note
that the Executive Committee is
empowered to examine the
proceedings before the
Disciplinary Committee and if it
thinks fit review any punishment
recommended by the Disciplinary
Committee. The review may take
the form of enhancing the
recommended penalty, subject to
this proviso that if the
Executive Committee intends to
increase the punishment, it can
do so only after granting the
appellant a personal hearing in
case no such hearing was given
him by the Disciplinary
Committee. The evidence,
however, shows that the
Executive Committee also
reviewed the findings of the
Disciplinary Committee and
enhanced the punishment without
giving the appellant a hearing.
While accepting that the
appellant should be warned, the
Executive Committee recommended
the reduction in grade by "four
notches" which amounts to an
enhancement of the Disciplinary
Committee's recommended penalty.
Before they could do that they
were mandatorily required to
give the appellant a personal
hearing. But again the appellant
had no notice about the review
exercise before the Executive
Committee. When the Executive
Committee, realised that it was
not within its powers to impose
disciplinary sanctions on the
appellant who is a senior
manager, the committee referred
its own recommendations to the
Board of Directors, being the
appropriate body, to pronounce
the penalty. The Board too did
not give the appellant any
notice or the chance to be
heard. I think the hearing
requested before increasing the
recommended penalty may not be
intended to open up the whole
inquiry but perhaps to afford
the employee the chance to show
cause why the penalty should not
be increased. The evidence is
unchallenged that no chance of a
hearing was given to the
appellant throughout the entire
spectrum of the process leading
to his dismissal. And I think
the learned judges of the Court
of Appeal with respect erred
when they said that since the
appellant did not request for a
personal hearing the loss of
that opportunity could not be
blamed on the Disciplinary
Committee. They overlooked the
circumstances under which the
appellant would have been
enabled to exercise that right.
When Justice Ofori-Boateng
quoted de Smith to the effect
that "The courts have held that
the failure to give formal
opportunity to be heard is
immaterial if the person
affected was in fact aware of
what was proposed or knew or
ought to have known that he
could have made representations
had he wished" he ought to have
immediately realised that the
statement scored a point in
favour of the appellant's case
because the evidence showed that
the appellant was not aware that
any investigation before the
Disciplinary Committee was
proposed and even carried out.
It is also contended on behalf
of the respondent that the query
served on the appellant and his
reply thereto constituted
sufficient hearing. I do not
think this is acceptable. In my
opinion the two queries served
on the appellant did not form
part of the investigations. The
first query Exhibit "E" asked
him to give reasons why he
counter signed the documents.
That query was issued on 25th
March, 1994. The second query
dated 29th March, 1994 asked him
to confirm whether the signature
on the two documents was his.
These two queries certainly
preceded the BNI investigations
which were conducted between
April and June 1994. And the
investigation by the
Disciplinary Committee also was
done after the BNI
investigations. Indeed if the
queries and answers had
satisfied the respondent, no
further investigation would have
been called for. The queries
were precursors of the
investigations and did not seek
to probe the appellant's
involvement in the transactions.
I would hold that those queries
do not constitute the hearing
envisaged by the rules of
natural justice or the Staff
Rules. Some reliance was placed
on the decision in Aryee v.
State Construction Corporation
(1984-86)1 GLR 424 which was
decided by the Court of Appeal.
The Court of Appeal in its
judgment in that case delivered
by Adade JSC was quoted as
saying as follows:—
"But what is a "hearing" in this
context? Where a board writes to
an employee drawing his
attention to alleged acts of
misconduct and impropriety and
invites a written explanation,
we would think that the employee
would have been given an
opportunity to be heard. And if
the employee writes back
answering the queries and offers
explanations and justifications
for his conduct or otherwise
upon "sober refection" withdraws
the allegations and insinuations
and apologises for his conduct,
then surely he would have taken
advantage of the opportunity
offered and would have been
heard. The board would then be
entitled to take a decision on
the basis of the answers,
explanations, justifications or
apologies given by the employee"
Lamptey, J.A.. as he then was
and Mrs Wood relied on this
pronouncement by Adade JSC to
support their views that the
queries given the appellant in
the instant case were enough to
constitute a hearing. I think
that here too they were wrong.
Very few propositions of law are
of universal validity and
applicable in all circumstances.
In the greater number of cases
statements framed by certain
judges as general principles of
law are indeed not so. In the
Aryee case the court found that
Aryee was not dismissed; the
corporation merely terminated
their contract with him as they
were entitled to do and paid him
his three months salary in lieu
of notice. There was no
suggestion that the corporation
gave Aryee any query before
terminating the contract. What
happened was that on an earlier
occasion Aryee had done the very
thing and when he was
"arraigned" before the board of
directors he wrote a letter and
apologised after a "sober
reflection". This was before the
offence for which the contract
was terminated. I think that the
statement of the learned Justice
in the Aryee case was
unfortunately too wide and
misleading. The contents of
every query and the answer
thereto will have to be examined
to see if they qualify to
satisfy the requirement of a
hearing.
What then is a "hearing" in the
context of the Staff Rules? In
trying to answer this question
it is pertinent to remind
ourselves that is not advisable
to follow and apply principles
and rules of law without a
careful examination of the
peculiar facts and special
circumstances which impinge on
the application of those rules
and principles. I concede that
some authorities indicate that a
hearing does not necessarily
involve the physical presence of
the employee, or a formal trial
akin to court proceedings see
Halsbury's Laws of England, Vol.
14th Edition paragraph 84; Rep.
V. Ghana Railway Corp. (1981)
GLR 752, at 758; Aryee v. State
Construction Corp. (1984-86)1
GLR 424 holding 2 at page 426;
But this statement is subject to
several qualifications that may
become necessary having regard
to each particular case. Thus
the learned authors in
Halsbury's Law of England in the
very paragraph 4 which I have
quoted above also had this to
say:—
"The standard of natural justice
and fairness are highly
flexible. Although the two
cardinal principles stated above
must normally though not
invariably be observed, the
precise procedure to be followed
in a given situation depends
upon the subject matter of the
decision or adjudication and
upon all the circumstances of
the case''.
It must not be lost on us that
the right to be heard, which we
also call the audi alteram
partem rule is an essential
characteristic of the principle
of natural justice. It
postulates that if any evidence
is taken against a man he must
be informed and allowed an
opportunity to correct or
contradict all adverse facts
given against him. Special
circumstance alone will defeat
this basic edict of the law.
Besides, the dismissal of the
appellant was carried out under
specific rules governing the
appellant and the respondent
bank. Those rules enjoin the
Disciplinary Committee and the
Executive Committee to give the
appellant a "personal hearing".
The emphasis is on the word
"personal". I am of the view
that "personal hearing" requires
the presence of the appellant
during the proceedings. But it
has been argued that the conduct
of the appellant viewed in the
context of the nature of the
business of banking constitutes
such a grave misconduct that it
was lawful to dismiss him even
without a hearing. The case of
Lever Bros. Ghana Ltd. v. Annan
(1989-'90)2 GLR 385;
Presbyterian church Agogo v.
Boateng (984-86)2 GLR 523;
Edward Nasser & Co. Ltd. v. Abu
Jawdi (1965)2 GLR 523;
Halsbury's Law of England, 3rd
Edition at page 485, paragraph
938 were cited in support. The
principle relied on is this:
"A servant whose conduct is
incompatible with the faithful
discharge of his duty to his
master may be dismissed...
Dismissal is also justified in
the case of a servant... If his
conduct has been such that it
would be injurious to the
matter's business to retain
him".
I agree that this is the common
law position. Bowen L.J. had
expressed it in 1888 when he
said that it is right for the
employer to instantly dismiss
the employee if the latter's
conduct is not only wrongful and
inconsistent with his duty
towards his master but also
inconsistent with the
continuance of confidence
between them: Boston Deep Sea
Fishing & Ice Co. v. Ansell
(1888) 39 Ch. 339, 363. A close
study of the authorities would,
however, reveal that the law has
not been static. Before the
close of the 19th century the
principle of audi alteram partem
did not appear to have any
general application to the case
of master and servant. But by
the second half of the 20th
century the traditional attitude
of the common law to the
employer's hitherto unrestrained
right to dismiss the servant was
experiencing a severe erosion,
with greater emphasis now being
placed on the need to give some
protection to the servant in a
bid to promote industry. The
tendency has been to discourage
summary dismissals which are, in
certain jurisdictions now termed
"unfair dismissals" (vide the
English Industrial Relations
Act, 1971 and the Trade Union
and Labour Relations Act, 1974)
The area of dismissals in the
common law of master and servant
is now largely superceded by
statutory provisions and express
employment contractual
agreements which bind the
parties. In the face of statute
law and contracts the common law
rules and authorities become
almost irrelevant, and the drift
has been quite so great that I
dare that say cases decided on
the principle of law relied on
by the Court of Appeal must be
considered as thoroughly
devitalised and no longer of any
controlling authority.
My Lords, permit me to
illustrate the point I am
making. I will use three cases.
The first case is the case of
Sinclair v. Neighbour (1976) 2
WLR 1. It was decided by the
English court of Appeal. The
facts are simple. The plaintiff
was employed by the defendant as
the Manager of the betting shop.
He took £20 out of the till
without the knowledge of the
defendant because he knew that
if he had asked the defendant
the latter would not have
allowed him to take it. When the
defendant got to know what had
happened, he dismissed the
plaintiff summarily. The
plaintiff sued for wrongful
dismissal. The trial judge
upheld the claim for wrongful
dismissal and the defendant
appealed. The Court of Appeal
allowed the appeal holding that
the conduct of the plaintiff was
of such a grave and weighty
character as to undermine the
relationship of confidence which
should exist between master and
servant, and therefore the
summary dismissal of the
plaintiff was justified. The
court applied the case of Boston
Deep Sea Fishing and Ice Co. v.
Ansell (1888) 39 Ch. D already
cited supra.
The second case is Earl v.
Slater & Wheeler (Airlyne) Ltd.
(1973) All ER 145. It was
decided under the Industrial
Relations Act, 1971, by the
National Industrial Relations
Court. The plaintiff was an
employee of the defendant
company. While he was absent
from work due to sickness the
defendants (his employers) made
certain discoveries which showed
that the plaintiff was not
carrying out his duties
satisfactorily. On his return to
work the defendants dismissed
him summarily without giving him
any opportunity to state his
case even though the letter of
dismissal stated the reasons for
the dismissal. An industrial
tribunal dismissed the claim for
unfair dismissal and the
plaintiff appealed. The
appellate court allowed the
appeal holding that the
employers at the time of the
dismissal had not given the
plaintiff an opportunity to
explain the allegations made
against him contrary to section
24(6) of the Industrial
Relations Act.
The third case I have chosen
because it somewhat explains why
the difference in the two other
cases. This third case is E.
Devis and Sons Ltd. v. Aikins
(1976)1 WLR 393. The Respondent
was the manager of an abattoir.
The appellants were his
employers. The Respondent was
not taking instructions and the
appellants dismissed him and
offered him compensation for
loss of office. Subsequently,
however, the appellants withdrew
the offer of compensation and
claimed that they had a right to
dismiss him summarily on grounds
of gross misconduct during his
term of employment, even though
the alleged misconduct was not
discovered before his dismissal.
The Respondent made a complaint
of unfair dismissal to the
industrial tribunal, and the
tribunal ruled that in
determining whether or not the
dismissal was unfair under the
Trade Union and Labour Relations
Act, 1974, it was not prepared
to admit evidence of facts
within the knowledge of the
appellants at the time of the
dismissal; and it found that the
Respondent was unfairly
dismissed. The appellants, his
employers, appealed. The appeal
was dismissed. The court held
that on a complaint of unfair
dismissal under the 1974 Act,
the tribunal was not concerned
with the contractual
relationship at common law
between employer and employee
but only with the bare fact of
the dismissal; and that under
the Act the employer was under a
duty to satisfy the tribunal
that he acted reasonably in
dismissing the employee, in
which case the tribunal had to
confide itself to such facts as
were within the knowledge of the
employer at the time he
formulated his reasons for
dismissing the employee. The
court relied on Earl v. Slater &
Wheeler (Airlyne) Ltd, supra and
distinguished Deep Sea Fishing &
Ice Co. v. Ansell, supra.
Philip J in his judgment at page
397 as follows:—
"Mr. Bresler, in his argument,
relies strongly on the common
law in relation to contracts of
employment and cites Cyril
Leonard & Co. Vrs. Simo
Securities Trust Ltd. (1972) 1
WLR, 80 ....That seems to me on
the merits to be a very
persuasive argument. The
difficulty lies partly in the
language of paragraph 6(8) of
schedule 1 to the Act of 1974,
and partly in the decided
cases."
He continued at page 399:
"Naturally, in developing his
submissions, Mr. Bresler has
pressed me strongly with the
cases of Boston Deep Sea Fishing
and Ice Co. vrs. Ansell (1888)
39 Ch.D. 3390 and Cyril Leonard
& Co. vrs. Simo Securities Trust
Ltd. (1972) 1 WLR 80. But, quite
apart from the two cases under
the Industrial Relations Act,
1971 which I cited, it has to be
borne in mind, I think, that
there is a considerable
difference between the position
at common law and the position
under the Industrial Relations
Act 1971 and, now the Trade
Union and Labour Relations Act
1974. The common law is
concerned merely with the
contractual relationship between
the parties, whereas a complaint
of unfair dismissal under the
Act of 1974 is concerned with
the statutory right of an
employee not to be unfairly
dismissed."
We have the Ghana decided cases
following the modern pattern
that the employer-employee
relationship, where there are
agreed service conditions, must
be governed by those conditions.
In the University of Ghana v.
Mensah (1984-86) 2 GLR, 622
where the termination of the
employee's services were held to
be wrongful, the learned High
Court Judge correctly, in my
view, said: "The action in this
case is that of master and
servant. In this case where the
relationship of the parties is
governed by the United
Conditions of Service for Senior
Staff of the University of
Ghana, Exhibit 1, effect should
be given to it". See also the
cases of Presbyterian Hospital,
Agogo v. Boateng (1984-86)2 GLR
381 Akorful v. State Fishing
Corp. (1991)2 GLR 348; Turkson
v. Mankoadze Fisheries (1991)1
GLR 430' Boateng v. Aluminum Co.
Ltd. (1984-86)1 GLR 733.
In my opinion the common law
approach advertised by the Court
of Appeal is inapplicable in
this case; the appellant's
letter of appointment, exhibit
"A", told the appellant "You are
required to agree to be governed
by the Staff Rules..." The
pleadings and the evidence show
that both parties recognise the
Staff Rules as governing their
relationship. The appellant's
claim is that the procedure
adopted in summarily dismissing
him is "ultra vires" those rules
and therefore wrongful. The
respondents maintain that they
acted within the parameters of
the rules. It is wrong to resort
to the common law right of the
employer to summarily dismiss
the employee for gross
misconduct. I think it is only
fair and right that the parties
should be held strictly to the
case made out by them in their
pleadings, and that the
respondent should not be allowed
to shift its ground. I do not
agree with the applicant that
the Board has no authority to
dismiss him. Under the Rules it
is the Board which is the
Disciplinary authority in cases
involving Senior Managers and
other employees above that rank.
But the evidence is clear that
the respondent did not observe
the Staff Rules in dismissing
the appellant. The Disciplinary
Committee did not give the
appellant the opportunity to be
heard as required by Rule 4(1).
The Executive Committee also
failed to give the appellant a
hearing even though mandated to
do so by Rule 4(3). The Board,
in dismissing the appellant were
enhancing the penalty
recommended by both the
Disciplinary Committee and the
Executive Committee. The
Executive Committee and the
Board are the two disciplinary
authorities. The Executive
Committee in deciding to
increase any penalty
recommended by the Disciplinary
Committee in a case involving an
employee below the rank of
Senior Manager must give that
employee a personal hearing; and
I think that the Board, acting
similarly in respect of
employees of Senior Manager rank
and above in place of the
Executive Committee must equally
be bound to give such a personal
hearing to the employee.
The appellant's claim that he
was denied the opportunity to be
heard was made out and the Court
of Appeal was wrong in reversing
the judgment of the trial High
Court.
In the result, I agree that the
appeal be allowed. The judgment
of the High Court is hereby
restored.
COUNSEL
Dr. Ekow Daniels for Appellant.
Mr. Agyeman Bempah for the
Respondent. |
