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Employment – Wrongful dismissal.
– Criminal law - Conspiracy to
commit crime - Fraudulent
withdrawal of money - Causing
financial loss to the state -
Sections 23(i) and 179 A (3) (a)
- Criminal Code Act 29 of 1960
and causing Financial loss to
the State, contrary to section
179 A (3)(a) of the Criminal
Code Act 29 of 1960 – Whether
the that his dismissal from the
employment of the defendant -
Whether the dismissal was
wrongful and in contravention of
the provisions of Article 191(b)
of the Constitution 1992 –
Whether the acquittal of the
appellant did not exonerate him
from liability for the loss –
Whether or not there was gross
negligence of duty and
misconduct which led to the loss
of the amount
HEADNOTES
On the 5th of May,
2000, the appellant was
dismissed from the services of
the respondent for his alleged
involvement in a fraudulent
withdrawal of US$1, 500,000.00
from the respondent bank. Upon
his dismissal the appellant was
handed over to the Bureau of
National Investigations for
investigations into the role the
appellant played in the
withdrawal of the said amount.
After completion of the
investigations, the Bureau of
National Investigations
presented its findings to the
Attorney-General’s office and
the appellant was arraigned
before the Greater Accra
Regional Tribunal, and with
three others were charged with
the offences of: conspiracy to
commit crime; namely causing
financial loss to the state
contrary to sections 23(i) and
179 A (3) (a) of the Criminal
Code Act 29 of 1960 and causing
Financial loss to the State,
contrary to section 179 A (3)(a)
of the Criminal Code Act 29 of
1960. On the 13th of
August 2002, the appellant was
acquitted and discharged after a
lengthy trial. Soon after his
acquittal the appellant’s
solicitors wrote to the
respondent informing them of his
acquittal and made a demand for
the payment of all his salaries
and other entitlements that had
been withheld when the criminal
case was pending at the Greater
Accra Regional Tribunal. This
demand from the appellant was
met with a refusal by the
respondent and on 23/09/2002 the
appellant commenced this action,
The respondent contended that
the appellant was dismissed due
to the fact that he and others
were responsible for the serious
financial loss which was the
subject matter of the
prosecution.
HELD
As it is not in dispute that the
appellant was offered an
opportunity to explain his
involvement in the huge
financial loss to the
respondent, the Court of Appeal
felt that this requirement of
fair hearing was satisfied We
were of the view that the appeal
had no merits and we accordingly
proceeded to dismiss same on
13/11/2014 and reserved our
reasons.
STATUTES
REFERRED TO IN JUDGMENT
1992 Constitution
Criminal Code
Act 29 of 1960
Court of
Appeal Rules, C.I 19.
CASES
REFERRED TO IN JUDGMENT
BLAY v
POLLARD & MORRIS [1930] I KB
628, 634
BENNEH v THE
REPUBLIC [1974] 2 GLR 47 CA
OLOTO v
WILLIAMS [1944] 10 WACA 23,
DAM v ADDO
[1962] 2 GLR 200 SC,
ODOI v
HAMMOND [1971] GLR 132 CA
ESSO
PETROLEUM CO LTD v SOUTHPORT
CORPORATION [1956] AC 218 HL,
BONNEY v
BONNEY [1992-93] GBR 779 SC
NTIRI v ESSIEN [2001-2002] SCGLR
451
IN RE YENDI SKIN AFFAIRS II
YAKUBU II v ABDULAI [1984-86] 2
GLR 239.
AFRICAN AUTOMOBILE LTD v TEMA
OIL REFINERY [2011] 2 SCGLR 907
AMOAH v LOKKO & ALFRED QUARTEY
[substituted by) GLORIA QUARTEY
[2011] ISCGLR 505.
BANI v MAERSK
GHANA LTD [2011] 2 SCGLR
ABOAGYE v
GHANA COMMERCIAL BANK [2001-02]
SCGLR
LEVER BROS
GHANA LTD v ANNAN [1989-90] 2GLR
385,
PRESBYTERIAN
CHURCH AGOGO v BOATENG [1985-86]
2 GLR 523;
EDWARD NASSER
& CO LTD v ABU JAWDI [1965] GLR
532;
AWUKU-SAO v.
GHANA SUPPLY COMPANY LTD [2009]
SCGLR 710
LAGUDAH v
GHANA COMMERCIAL BANK LTD
[2005-06] SCGLR 388
BOOKS
REFERRED TO IN JUDGMENT
HALSBURY’S
LAWS OF ENGLAND (3rd
ed) at page 485,
DELIVERING
THE LEADING JUDGMENT
ANIN YEBOAH JSC.
COUNSEL
CHARLES
HAYIBOR ESQ. FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
NUTIFAFA
NUTSUKPUI ESQ. (WITH MISS YVONNE
AKUFO-ADDO AND JOEL ANNOR AFARI)
FOR THE DEFENDANT
/APPELLANT/RESPONDENT.
__________________________________________________________________________________
JUDGMENT
__________________________________________________________________________________
ANIN YEBOAH JSC.
On the 13/11/2014, we dismissed
the appeal in this matter and
affirmed the judgment of the
Court of Appeal, Accra. We now
proceed to offer our reasons for
the dismissal of the appeal.
The appellant herein was at the
time material to this action a
senior officer at the Bank of
Ghana as the Director of Budget
and Accounts. The facts giving
rise to this action appear not
to be in any serious
controversy. On the 5th
of May, 2000, the appellant was
dismissed from the services of
the respondent for his alleged
involvement in a
fraudulent withdrawal
of US$1,500,000.00 from the
respondent bank.
Upon his dismissal the appellant
was handed over to the Bureau of
National Investigations for
investigations into the role the
appellant played in the
withdrawal of the said amount.
After completion of the
investigations, the Bureau of
National Investigations
presented its findings to the
Attorney-General’s office and
the appellant was arraigned
before the Greater Accra
Regional Tribunal, and with
three others were charged with
the offences of: conspiracy to
commit crime; namely causing
financial loss to the state
contrary to sections 23(i) and
179 A (3) (a) of the Criminal
Code Act 29 of 1960 and causing
Financial loss to the State,
contrary to section 179 A (3)(a)
of the Criminal Code Act 29 of
1960. On the 13th of
August 2002, the appellant was
acquitted and discharged after a
lengthy trial.
Soon after his acquittal the
appellant’s solicitors wrote to
the respondent informing them of
his acquittal and made a demand
for the payment of all his
salaries and other entitlements
that had been withheld when the
criminal case was pending at the
Greater Accra Regional
Tribunal. This demand from the
appellant was met with a refusal
by the respondent and on
23/09/2002 the appellant
commenced this action against
the respondent for the reliefs
endorsed on the writ of summons
as follows:
I.
“A declaration
that his
dismissal from the employment of
the defendant was wrongful and
in contravention of the
provisions of Article 191(b) of
the Constitution 1992.
II.
An order for the payment to
plaintiff of all his salaries
from 5th May 2000, to
the date of final judgment.
III.
An order for the payment of
three month’s salary in lieu of
notice.
IV.
An order for the payment of
plaintiff’s entire end of
service benefits calculated up
to the date of final judgment.
V.
Damages for prospective loss of
promotion and loss of
employment.
VI.
General damages for
wrongful
dismissal.
VII.
Interest on (ii) and (iii)
calculated at the prevailing
bank rate from 5th
May 2000 to date of final
judgment.
VIII.
Any other order or orders as
this honourable Court may deem
fit.
The respondent in its statement
of defence in answer to the
averments in the statement of
claim denied all the material
facts supporting the reliefs
sought.
The respondent contended that
the appellant was dismissed due
to the fact that he and others
were responsible for the serious
financial loss which was the
subject matter of the
prosecution. Further, it was
contended that
the
acquittal of the appellant did
not exonerate him from liability
for the loss of the amount
of US$1,500,000.00. According to
the respondent, it constituted a
Disciplinary Committee to
conduct investigations into the
loss of the amount and there was
evidence before the committee to
support the finding that there
was, indeed,
gross
negligence of duty and
misconduct on the part of the
appellant which led to the loss
of the amount of
US$1,500,000 and his ultimate
dismissal.
From these rival averments the
issues set down in the
application for directions were
as follows:
1.
Whether or not the plaintiff’s
dismissal was unlawful
2.
Whether or not the plaintiff is
entitled to the reliefs sought
3.
Whether or not the plaintiff was
negligent
4.
Whether or not plaintiff acted
or performed or purported to
carry out functions that did not
fall within his purview
5.
Whether or not plaintiff and his
colleagues caused financial loss
to the defendant
6.
Whether or not the defendant can
hold the plaintiff and others
liable for the loss incurred by
the defendant
7.
Whether or not the defendant can
invoke Article 13(b) of the
defendant’s Officials Rules and
Conditions of Service.
We have taken the usual step as
a second appellate court to
state the issues set down at the
application for directions for
obvious reasons. It must be
pointed out that in the judgment
of the trial court, the learned
trial judge, with due respect,
took a step contrary to the
basic principles of settled
practice in civil jurisprudence
by totally ignoring the issues
set down by the parties and
resorted to setting down his own
issues on which he based his
judgment. This was what His
Lordship said in the judgment at
the High Court:
“In the view of the court,
therefore, the real issues that
arise from the pleadings and
which this court has adopted for
determination are the following;
1.
Whether or not the plaintiff was
a co-beneficiary of the
dishonoured cheque that
occasioned the withdrawal of the
$1.5 million.
2.
Whether or not the plaintiff was
notified of the constitution of
a Disciplinary Committee to
investigate the circumstances
leading to the withdrawal of the
$1.5 million, and if yes,
whether or not he was given a
fair hearing before the said
committee.
3.
Whether or not the letter
written by the plaintiff to the
Head of Banking Division of the
defendant bank dated 25th
April 2000 admitting errors of
judgment on his part operates as
estoppels against him from
challenging the basis of his
dismissal.
4.
Whether or not plaintiff’s
dismissal under Article 13(b) of
the defendant’s Official Rules
and Conditions of Service was
wrongful and therefore unlawful
under the circumstances.
5.
Whether or not plaintiff is
entitled to his claim or any of
the reliefs claimed under it.
It should be noted that all the
above issues set down by His
Lordship were clearly different
from what the parties themselves
had put forward from their
pleadings and which the learned
judge had himself adopted as
issues for determination.
This procedure is clearly
contrary to settled practice in
our adversarial system of
Justice. In the case of
BLAY
v POLLARD & MORRIS [1930]
I KB 628, 634 Scrutton L.J
condemned such practice and
said;
“Cases must be decided on the
issues on the record; and if it
is desired to raise other issues
they must be placed on the
record by amendment. In the
present case, the issue on which
the judge decided was raised by
himself without amending the
pleading, and in my opinion he
was not entitled to take such a
course”
Apaloo JA (as he then was) in
the case of
BENNEH
v THE REPUBLIC [1974] 2
GLR 47 CA [Full Bench] said
at page 94 as follows:
“For the court itself to
raise this issue and found a
conclusion on it, even in part,
would hardly conform to our
conception of the role of a
judge in our adversary system of
administering justice as an
umpire in a dispute. Such
appellate decisions as
OLOTO
v WILLIAMS [1944] 10 WACA
23, DAM v ADDO
[1962] 2 GLR 200 SC, ODOI
v HAMMOND [1971] GLR 132
CA and the English decision of
ESSO PETROLEUM CO LTD v
SOUTHPORT CORPORATION
[1956] AC 218 HL, counsel a
court against founding a
conclusion on an issue not
raised or canvassed by the
parties or pronouncing for a
party on a case inconsistent
with the one he put up”
This irregular step taken by the
learned judge was righted on
appeal when the respondent
herein complained bitterly
against the conduct of the
learned trial judge in adopting
such a course. This was what
the Court of Appeal per Justice
Richard Apaloo said:
“In my view the learned trial
judge went astray by the rulings
on those issues. The effect of
those rulings or decisions on
the two key issues by the trial
judge is that he completely
failed to deal or adequately
deal with the case of the
defendant”
The Court of Appeal, however,
proceeded to evaluate the
evidence on record and
eventually reversed the judgment
of the High Court and entered
judgment for the defendant, who
is the respondent herein. The
appellant herein appealed to
this court after the Court of
Appeal had allowed the appeal
and dismissed his cross-appeal.
Before this court, the appellant
has filed several grounds of
appeal to seek the reversal of
the judgment of the Court of
Appeal and allow his
cross-appeal, which was
dismissed by the Court of
Appeal.
The grounds of appeal on record
are as follows:
a)
The judgment is against the
weight of evidence.
b)
The Court of Appeal erred when
it failed to consider the
Appellant’s case on appeal
c)
The Court of Appeal erred when
it substituted its findings of
fact and evidence for those of
the trial judge.
d)
The Court of Appeal erred in its
interpretation of the import and
effect of exhibit 8 relied on by
the respondent.
e)
The Court of Appeal erred when
it dismissed the appellant’s
cross-appeal.
Learned counsel for the
appellant who on record put a
lot of industry into the
preparation of the statement of
case for the appellant argued
grounds (a) (b) and (c)
together. Whilst appreciating
that the law was settled that an
appellant who appeals on the
grounds that the judgment is
against the weight of evidence
assumes the burden of showing
from the evidence that it was in
fact so, he sought to urge on
this court on the authority of
BONNEY
v BONNEY [1992-93] GBR
779 SC to submit that the
Court of Appeal ought not under
any circumstances interfere with
the findings of fact made by the
trial judge save when it could
be clearly established that the
trial judge was wrong. Further
reliance was placed on
NTIRI
v ESSIEN [2001-2002]
SCGLR 451 and IN RE
YENDI SKIN AFFAIRS II YAKUBU II
v ABDULAI [1984-86] 2 GLR
239.
It appears that learned counsel
for the appellant has
over-simplified the principles
enunciated in the cases cited
above if the principle is
applied to this case. This case
was not based on the demeanour
of witnesses before the trial
court. The case before the
trial court was documentary in
nature. The mass of documentary
evidence on record out of which
the Court of Appeal drew its own
inferences and set aside the
findings of the trial judge was
not against the principle of law
that appeals are by way of
re-hearing.
Indeed the
Court of
Appeal rules, Rule 8 of CI
19 of 1997 has given statutory
backing to this principle. See
AFRICAN AUTOMOBILE LTD v
TEMA OIL REFINERY [2011] 2
SCGLR 907 and AMOAH v
LOKKO & ALFRED QUARTEY
[substituted by) GLORIA
QUARTEY [2011] ISCGLR 505.
Another serious attack on the
judgment of the Court of Appeal
was that it set aside the
findings of the trial court when
it concluded that the trial
judge had erred in holding or
finding that the appellant was
not giving any hearing and
therefore the committee set up
to investigate the matter
against the appellant flouted
the audi alteram partem rule.
Counsel’s argument in support of
this ground was that primary
findings of facts had been made
by the learned trial judge and
as the facts were amply
supported by the evidence the
Court of Appeal fell into
serious error by setting aside
these findings. He proceed to
cite several authorities to
support his contention that
basic findings of facts made by
a trial court ought not to be
disturbed by the appellate
court.
As pointed out earlier in this
delivery, the case turned on
documentary evidence which
offered the Court of Appeal to
draw its own inferences from the
facts on record. However, this
point can be disposed of by
resort to the several exhibits
on record. Exhibit “G” is the
comprehensive Report of the The
Committee Appointed by
Management to Investigate The
Fraudulent Encashment of
Us$1,500.00 from Bank of Ghana
which catalogued the events
leading to the fraud perpetuated
against the respondent herein.
Another exhibit worthy of
consideration is Exhibit 8 which
the appellant himself
voluntarily wrote to the Head of
the Banking Department of Bank
of Ghana. In Exhibit 8 the
appellant confessed his guilt
and rendered an apology for the
“serious lapse of good judgment”
when he failed to protect the
respondent from huge financial
loss. This letter was dated the
25th of April 2000.
The committee which turned out
Exhibit “G” was purely an
internal administrative one
which was set up to investigate
the allegations of the
fraudulent conduct of the
appellant and the presenter of
the cheque. It was to
investigate and make
recommendations to the Board of
Directors to unearth the
circumstances leading to the
fraud. The appellant was,
however, contacted by the
committee. His assertion that
under Article 13 (b) of Exhibit
“10” which is the Officers’
Rules and Conditions of Service
(Bank of Ghana) he was denied
hearing cannot be true. Article
13 (b) states thus:
“The Bank may without notice or
with salary in lieu of notice
dismiss an officer on any of the
following grounds;
1.
Dishonesty
2.
Fraud
3.
Willful refusal to obey
legitimate and reasonable
instructions
4.
Gross misconduct
5.
Gross negligence of duty”
If Exhibits “A”, “B” and “C” are
read together, it would become
clear that the conduct of the
appellant fell squarely within
Article 13(b) of Exhibit “10”
which empowers the respondent to
dismiss any employee whose
conduct runs counter to the
provisions of the said article.
The contention that the audi
alteram partem rule was flouted
is clearly not supported by the
evidence on record.
It must also be made plain that
the common law reserves the
right to dismiss an employee for
proven misconduct. This court
in
BANI v MAERSK GHANA LTD
[2011] 2 SCGLR per Date-Bah
JSC said at page 813 as follows:
“In
ABOAGYE v GHANA
COMMERCIAL BANK [2001-02]
SCGLR 797 at 828-831, Adzoe
JSC correctly expounds the
common law position on summary
dismissals. He said at 828-829;
But it has been argued that the
conduct of the plaintiff, 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] 2GLR 385,
PRESBYTERIAN CHURCH AGOGO v
BOATENG [1985-86] 2 GLR
523; EDWARD NASSER & CO LTD
v ABU JAWDI [1965] GLR
532;
HALSBURY’S LAWS OF ENGLAND (3rd
ed) 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
master’s business to retain him”
It therefore follows that an
employee like the appellant
herein, (a senior officer of the
nation’s central bank) to have
grossly misconducted himself
resulting in huge financial loss
of US$1,500,000.00 cannot
complain of lack of fair
hearing it he was found clearly
culpable by an investigative
committee set up to investigate
the circumstances leading to
such loss. This has been so
held in several cases in this
court and this court has always
upheld this basic common law
principle. Nothing has been
urged on us to depart from this
time-honoured principle which we
find as sound proposition of
law.
The appellant’s own confession
that there was “serious lapse of
good judgment” leading to the
loss of such a huge amount of
money is clearly condemnable.
In the case of
AWUKU-SAO
v. GHANA SUPPLY COMPANY LTD
[2009] SCGLR 710 this court
in dealing with what fair
hearing means in disciplinary
proceedings involving summary
dismissals settled the law
beyond doubt when it held as
follows:
“The court would affirm the
decision of both the High Court
and the Court of Appeal that in
the absence of any requirement
in the service contract between
the plaintiff and the governing
board of the defendant company
for the setting up of a
disciplinary proceedings, what
was essential for determination
was whether the plaintiff had
been given an opportunity to
react to the charges laid
against him. The court would
therefore hold that if the
plaintiff had been given a
chance to answer to the charges
even if not directly to the
governing board or a body set up
by it, that should satisfy the
requirements of natural justice”
As it is not in dispute that the
appellant was offered an
opportunity to explain his
involvement in the huge
financial loss to the
respondent, the Court of Appeal
felt that this requirement of
fair hearing was satisfied.
Another case worthy of
consideration is
LAGUDAH v GHANA
COMMERCIAL BANK LTD
[2005-06] SCGLR 388 which
seeks to lay down the same
principle of fair hearing in
matters of misconduct resulting
in dismissal of an employee by
an employer.
We were of the view that the
appeal had no merits and we
accordingly proceeded to dismiss
same on 13/11/2014 and reserved
our reasons.
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
W. A. ATUGUBA
JUSTICE
OF THE SUPREME COURT
(SGD)
J. ANSAH
JUSTICE
OF THE SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE
OF THE SUPREME COURT
COUNSEL
CHARLES
HAYIBOR
ESQ. FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
NUTIFAFA
NUTSUKPUI
ESQ. (WITH MISS YVONNE
AKUFO-ADDO AND JOEL ANNOR AFARI)
FOR THE DEFENDANT
/APPELLANT/RESPONDENT.
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