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JUDGMENT:
B. T. ARYEETEY, J. A.:
The claim of the
Plaintiffs/Appellants before the trial High Court,
Sunyani was for an order for recovery of the manse and
all properties therein from the Defendant/Respondent who
had been retired prematurely from the service of the
Plaintiff Church. Following his retirement, the
appellant church paid the respondent a total of ¢627,992
comprising his gratuity and transport fare after an
amount of ¢162 had been deducted from his entitlement.
The respondent also accepted the payment of monthly
pension of ¢42,482 from the date of retirement. He
however, did not move out of the manse contrary to the
expectation of the church. The respondent counterclaimed
for the following reliefs:
(a) The gross monthly
salaries of the remaining 17 years of service.
(b) The payment of
¢162,000 with interest at the current bank rate being
part of his entitlements.
(c) An order of
perpetual injunction restraining the Plaintiffs and/or
their agents from interfering in any way with the
Defendant's stay in the manse until the final
determination of the case.
The trial Court ordered
the respondent to surrender vacant possession of the
manse to the church and awarded ¢5,000,000 compensation
to be paid to the respondent in respect of his
counter-claim for gross monthly salary of the remaining
17 years of his service. He was also given judgment for
the ¢162,000 which was deducted from his entitlement
without the award of interest on that sum. The
appellants filed 6 grounds of appeal but limited
themselves to the first 3 grounds of appeal when they
filed the statement of their case. The 3 grounds are:
“(a) That the learned
judge erred in awarding to the Defendant ¢5,000,000
compensation, a relief which the Defendant never sought
for in his counterclaim. Besides; the Defendant having
agreed to accept his early retirement and having
consequently taken part in his pension and monthly
pension and having directed where the Plaintiffs should
pay his monthly pension, was not entitled to any further
monetary payments from the Plaintiff except his pension.
(b) That the learned
judge ought to have held that the Defendant was estopped
by his conduct from challenging the propriety of his
early retirement.
(c) That the Defendant
was unable to prove that the Plaintiff owed to him the
sum of ¢162,000.00”.
I propose to deal first
with ground (b) of the appeal namely the learned judge
ought to have held that the Defendant was estopped by
his conduct from challenging the propriety of his early
retirement. It must be pointed out that ground (b)
listed in the notice of appeal filed on 30th March,
1998, bears no resemblance to ground (b) listed in the
statement of the appellants’ case. In spite of my
difficulty in identifying what ground (b) of the appeal
really is, I would like to comment briefly on the two
versions as presented by the notice of appeal and the
statement of the appellants’ case.
The ground (b) listed
in the notice of appeal, speaks of failure by the trial
Court to hold that “the Defendant was estopped by his
conduct from challenging the propriety of his early
retirement”.
According to paragraph
7 of the appellants amended reply filed on 26th May,
1997, the appellants' plea of estoppel was as follows:
“The Plaintiff says
that the Defendant is estopped by conduct from denying
that he has been retired from the Presby Church of
Ghana”.
The ground (b) of the
appeal listed in the notice of appeal speaks of a very
different estoppel that was not pleaded. It is very
obvious that the Defendant did not deny that he was
prematurely retired from the service of the appellant
church. However, the record of appeal is replete with
information that the respondent, right from the onset,
challenged the propriety of his retirement. What is
listed in ground (b) of the statement of the Plaintiffs'
case is not what was pleaded in the amended reply of the
appellants and therefore, the learned trial judge did
not err in not coming to any conclusion in relation to
that.
In respect of the new
ground (b) which is listed in the Statement of the
Appellants' case, Counsel for the appellants, Dr. Seth
Twum has, sought to create the impression that although
the respondent was not given any opportunity to answer
any charge against him, there is sufficient indication
of series of misconduct on his part to justify his
premature retirement especially when he did not take
steps to improve upon his personal relations. Counsel
for the appellants expressed his criticism of the
finding of the trial judge in the following words:
“The learned trial
judge on page 77, lines 39-45 expressed the view that
the failure of the Church to give the Defendant a
hearing and thus depriving him of the chance of
defending himself was a breach of natural justice. With
respect, this approach tends to over judicialise the
proceedings of domestic bodies. There is a need for a
clear understanding of the distinction between public
law bodies and the equally important distinction between
public law issues and private issues … It is submitted
that where a party has been given an opportunity of
presenting his case in adequate form contradicting every
statement prejudicial to him, the audi alteram partem
rule does not require that the proceedings should be
conducted as a trial in a Court of law. Indeed, the rule
does not contemplate oral hearing unless some statute
expressly says so. Local Government Board v. Arlidge
(1915) AC120”
In all the fairness it
would be worthwhile to turn our attention to the written
submission of the respondent himself which is very
difficult to follow. At least, he makes reference to the
false allegations which were made against him which
formed the basis of his arbitrary suspension.
In the opening
paragraphs of the Respondent's letter to the Presbytery
Clerk dated 27th August, 1994, Exhibit 4, the following
is recorded:
“Dear Fathers and
Mothers in Christ,
REPORT FROM BRONG AHAFO
PRESBYTERY LEADING TO MY RETIREMENT
Reference A: PCG/PS
dated 16th August, 1994
B: My appeal against
Reference A dated 22nd August, 1994
C: My
appeal against Reference A dated 26th August, 1994. ,
I humbly write you this
request in the love of Christ.
Reference A states in
the opening paragraph that ‘the report from the Brong
Ahafo Presbytery’ influenced the Synod Committee to
decide to retire Reverend C. E. N. Doku prematurely.
Both your report and the Synod Committee's decision were
abnormally processed contrary to:—
(a) the scripture (John
7:51) which demands fair hearing;
(b) the RPP paragraph
319 - the charge must be judicially confessed or proved,
and
(c) the human rights
tenet—the accused must be given an opportunity to defend
himself/herself.
APPEAL:
I am humbly appealing
to you as my rights in both the respective constitutions
of the State and the Church:
(a) To be given a fair
hearing to defend myself; and
(b) To be given a copy
of your alleged report”.
Paragraphs 318 and 319
of the Regulations Practice and Procedure of the
Presbyterian Church, Exhibit 5 reads as follows:
“318—The censures of
the Church are Admonition, Rebuke, Suspension,
Deposition from office, and excommunication, and they
are administered only on confession proof of sin or
offence. Private admonition, which is not a censure, may
in certain cases meet the ends of discipline.
319—Suspension of a
person under scandal from performance of duties, or even
from the communion during the investigation of the
scandal, it is not a censure as long as the charge is
not judicially confessed or proved”.
As pointed out by the
trial judge in his judgment at page 77 of the record of
appeal, the appellants' representative Rev. Dr. Prempeh
admitted that the respondent was prematurely retired
without a hearing as required by the Regulations,
Practice and Procedure of the Church, Exhibit 5. I am
therefore of the view that ground (b) in the forms in
which it was presented has no basis and it is
accordingly dismissed.
I now turn my attention
to ground (a) of the appeal which is “that the learned
judge erred in awarding to the Defendant ¢5,000,000
compensation, a relief which the Defendant never sought
for in his counterclaim. Besides, the Defendant having
agreed to accept his early retirement and having
consequently taken part in his pension and monthly
pension and having directed where the Plaintiff should
pay his monthly pension, he is not entitled to any
further monetary payments from the Plaintiff except his
pension.” In the first place, in his Amended Statement
of Defence and Counter-claim, the respondent
counterclaimed for gross monthly salaries of the
remaining 17 years of service. The award of ¢5,000,000
by the learned trial judge came under that head of the
respondent's counterclaim after giving his reasons for
his inability to award the respondent his gross monthly
salaries for the remaining 17 years of service. It means
this is not a case of awarding compensation for what the
respondent had not asked for as submitted in the
statement of the appellants' case.
In his notice to
contend that the decision of the Court below be varied,
the respondent asked for the award of the ¢5,000,000
compensation by the High Court to be enhanced. It has
therefore become necessary for me to examine the case
law which sheds some light on how damages in similar
circumstances should be assessed. In the case of Ghana
Cocoa Marketing Board v. Agbettoh and others digested in
[1983-86] GLRD 16, it was held by the Court of Appeal in
a case of unconstitutional retirement that the Defendant
board should pay each Plaintiff an amount equal to two
years salary in addition to receiving their entitlements
under their contract of employment. That decision was
given approval by the Supreme Court in the case of
Nartey-Tokoli v. Volta Aluminium Co. Ltd digested in
[1989-90] GLRD 112. Also in the Supreme Court judgment
in the case of Ghana National Trading Corporation and
Another v. Baiden reported in [1991] GLR 567, it was
held that in case of wrongful dismissal, it was
unrealistic to pay the respondent salary as though to
the date of judgment of the High Court he was rendering
service to the appellants. He was therefore, awarded 2
years salary as damages. In this case, it would be
unrealistic to award the respondent 17 years salary as
damages. Also in the light of the case law referred to
in this judgment, an award of ¢5,000,000 compensation to
the respondent is on the higher side and without any
basis. Accordingly, I would set that judgment aside. In
its place, I would award the respondent 2 years salary
as damages in addition to his entitlements.
The appellants' third
ground of appeal was that the respondent was unable to
prove that they owed him the amount of ¢162,000. It is
the contention of Counsel for the appellants that the
burden was on the respondent to prove that the
appellants owed him the sum of ¢162,000 which he failed
to discharge. That was because the appellants in their
pleading denied the claim of the respondent. What has to
be looked at is what gave rise to the claim of the
respondent in the Court below for the payment to him of
the amount of ¢162,000 plus interest. On the appellants'
own showing, an amount of ¢162,000 was deducted from the
respondent's total entitlement before payment was made
to him. The respondent's counterclaim for ¢162,000 plus
interest constituted a challenge to the deduction of
¢162,000 from his entitlement by the appellants. The
appellants were therefore called upon to satisfy the
trial Court as to the basis of the deduction. They
failed to do that. It is therefore the finding of the
trial Court that the appellants failed to offer any
explanation for the deduction of the sum of ¢162,000
from the entitlement of the respondent. That is, the
appellants failed to discharge the burden of
establishing by evidence the basis of the deduction of
¢162,000 from the entitlement of the respondent by them.
I am therefore of the opinion that the conclusion
reached by the trial judge should not be disturbed in
any way. That means ground (c) of the appellants’
grounds of appeal fails and is accordingly dismissed.
Also, in the
respondent's notice of intention to contend that the
decision of the Court below be varied he asks for an
award of interest on the sum of ¢162,000 in respect of
which he obtained judgment in his counterclaim in the
Court below. I am of the opinion that the Court below
through inadvertence, did not make any order in respect
of the respondent's counterclaim for interest to which
he was entitled. I would therefore vary the order of the
Court below by awarding interest at prevailing bank
rate. Accordingly, I make an order for award of interest
in respect of the amount of ¢162,000, which was ordered
to be paid to the respondent, at the prevailing rate
from the date the respondent received payment of his
entitlement to the date of judgment of this Court.
B. T. ARYEETEY
JUSTICE OF APPEAL.
ESSILFIE-BONDZIE, J.A.:
I agree
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
TWUMASI, J.A.:
I also agree
TWUMASI
JUSTICE OF APPEAL |
