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UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2019

 

 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2019

                                   

 

THEOPHILUS DONKOR VRS THE ATTORNEY GENERAL WRIT NO.  J1/08/2017 12TH JUNE, 2019

 

CORAM

AKUFFO (MS), CJ (PRESIDING) DOTSE, JSC GBADEGBE, JSC BENIN, JSC MARFUL-SAU, JSC AMEGATCHER, JSC KOTEY, JSC

 

 

 

Constitutional law – Interpretation -  Supreme Court - Invoking the original jurisdiction of the court - Articles 70(1)(d)(iii), 190 and/or 191(b) , Articles 2 (1) and 130 – 1992 constitution - section 14 of the Presidential (Transition) Act 2012 (Act 845) – Whether or not the President of the Republic of Ghana in line with Article 297(a) of the 1992 Constitution has the legal authority to remove from office members of the governing boards of public corporations appointed pursuant to Articles 70(1)(d)(iii), 190(1)(b) and 190(3) of the 1992 Constitution without assigning any just cause. - Whether or not section 14 of the Presidential (Transition) Act 2012 (Act 845) is inconsistent with articles 70(1)(d)(iii), 190 and/or 191(b) of the Constitution, 1992 - Whether or not article 19(b) of the Constitution, 1992, also applies to the category of officers mentioned in section 14 of Act 845.

 

HEADNOTES

By a writ of summons issued on 4th January 2017, the Plaintiff invoked the original jurisdiction of this court pursuant to Articles 2 (1) and 130 seeking certain reliefs. The said writ was amended pursuant to leave of this court granted on the 8th March 2017. The Plaintiff therefore filed an amended writ and statement of case on 10th March 2017. The Defendant filed an amended Statement of case on 23rd March 2019. The following reliefs are indorsed on the amended writ that  the removal from office of such Chief Executives, Chief Executive Officers, Director-Generals (howsoever called) and members of governing boards of public corporations merely on account of the assumption of office of the person elected as President of the Republic of Ghana does not amount to a just cause and is accordingly unconstitutional and that section 14 of the Presidential (Transition) Act 2012 (Act 845) requires all Chief Executives, Chief Executive Officers, Director-Generals (howsoever called) and members of governing boards of public corporations to cease to hold office merely on account of the assumption of office of the person elected as President of the Republic of Ghana, the said section 14 is unconstitutional as being inconsistent with the letter and spirit of the Constitution, particularly Articles 70(1)(d)(iii), 190 and/or 191(b) of the Constitution and an order of perpetual injunction restraining any person or authority from removing from office such Chief Executives, Chief Executive Officers, Director-Generals (howsoever called) and members of governing boards of public corporations merely on account of the assumption of office of the person elected as President of the Republic of Ghana

HELD

Members of governing boards of statutory boards and corporations appointed in accordance with article 70(1)(d)(iii) of the Constitution are not members of the Public Service and their tenure is not governed by articles 191 and 195 of the Constitution. Therefore, each person may be removed at will by the President. We declare accordingly.

Upon a true and proper interpretation, a Public Service Officer appointed in accordance with article 195 of the Constitution and may not be removed save in accordance with the terms and conditions of his or her contract of engagement or in the absence of such, for just cause pursuant to articles 191 and 195 of the Constitution.

To the extent that section 14 of the Presidential (Transition) Act 2012, (Act 845) requires Chief Executives or Directors-General (howsoever described) of public boards or corporations to cease to hold office upon the assumption of office by a person elected as President of the Republic of Ghana, the same is hereby declared to be unconstitutional and void for being in contravention of articles 190 and 191 of the Constitution.

STATUTES REFERRED TO IN JUDGMENT

1992 constitution

Presidential (Transition) Act 2012 (Act 845)

Presidential Office Act 1993 (Act 463).

Interpretation Act 2009 (Act 792)

National Petroleum Authority Act, 2005 (Act 691)

Securities Industry Act, 2016(Act 929)

University of Ghana Act 2010 (Act 806)

National Pensions Act, 2008 (Act 766),

CASES REFERRED TO IN JUDGMENT

Adjei-Twum v. Attorney General and Akwetey [2005-2006] SCGLR 732;

Republic v. High Court (Fast Track Division), Ex parte; CHRAJ (Richard Anane, Interested Party) [2007-2008] 213 

Asare v. Attorney General [2003-2004] 2 SCGLR 823

BOOKS REFERRED TO IN JUDGMENT

DELIVERING THE LEADING JUDGMENT

KOTEY, JSC:-

COUNSEL

SYLVESTER WILLIAMS, CHIEF STATE ATTORNEY FOR DEFENDANT WITH HIM AURIEL ASARE BOATENG, ASSISTANT STATE ATTORNEY, AKAWARI ATINDEM, ASSISTANT STATE ATTORNEY AND VIVIAN OPOKU AGYAKWA, SENIOR STATE ATTORNEY FOR THE DEFENDANT.

GODWIN TAMEKLO FOR THE PLAINTIFF.

 

 

JUDGMENT

 

KOTEY, JSC:-

1.0 Introduction

By a writ of summons issued on 4th January 2017, the Plaintiff invoked the original jurisdiction of this court pursuant to Articles 2 (1) and 130 seeking certain reliefs. The said writ was amended pursuant to leave of this court granted on the 8th March 2017. The Plaintiff therefore filed an amended writ and statement of case on 10th March 2017. The Defendant filed an amended Statement of case on 23rd March 2019. The following reliefs are indorsed on the amended writ.

           

1.    A declaration that the removal from office of such Chief Executives, Chief Executive Officers, Director-Generals (howsoever called) and members of governing boards of public corporations merely on account of the assumption of office of the person elected as President of the Republic of Ghana does not amount to a just cause and is accordingly unconstitutional;

           

2.    A declaration that to the extent that section 14 of the Presidential (Transition) Act 2012 (Act 845) requires all Chief Executives, Chief Executive Officers, Director-Generals (howsoever called) and members of governing boards of public corporations to cease to hold office merely on account of the assumption of office of the person elected as President of the Republic of Ghana, the said section 14 is unconstitutional as being inconsistent with the letter and spirit of the Constitution, particularly Articles 70(1)(d)(iii), 190 and/or 191(b) of the Constitution;

           

3.    An order of perpetual injunction restraining any person or authority from removing from office such Chief Executives, Chief Executive Officers, Director-Generals (howsoever called) and members of governing boards of public corporations merely on account of the assumption of office of the person elected as President of the Republic of Ghana.

 

1.1 Memorandum of Agreed Issues

The parties filed the following joint memorandum of agreed issues on the 9th May 2017.

1.    Whether and to what extent the public services of Ghana as defined under Article 190 of the 1992 Constitution are separate from and/or independent of the executive authority of Ghana.

                       

2.    Whether or not the expression “a member of the public services” as used in Article 191 of the 1992 Constitution affects members of the governing boards of public corporations appointed pursuant to Articles 70(1)(d)(iii), 190(1)(b) and 190(3) of the 1992 Constitution.

 

3.    Whether or not the President of the Republic of Ghana in line with Article 297(a) of the 1992 Constitution has the legal authority to remove from office members of the governing boards of public corporations appointed pursuant to Articles 70(1)(d)(iii), 190(1)(b) and 190(3) of the 1992 Constitution without assigning any just cause.

           

4.    Whether or not a turnover in power (that is, the assumption of office of the person elected as President of the Republic of Ghana) constitutes a just cause for the removal from office of members of the governing boards of public corporations appointed pursuant to Articles 70(1)(d)(iii), 190(1)(b) and 190(3) of the Constitution.

           

5.    Whether or not section 14 of the Presidential (Transition) Act 2012 (Act 845) is inconsistent with articles 70(1)(d)(iii), 190 and/or 191(b) of the Constitution, 1992; and

 

6.    Whether or not article 191(b) of the Constitution, 1992, also applies to the category of officers mentioned in section 14 of Act 845.

 

1.2 Issues for Trial

When the instant matter came up for hearing on 19th February 2019, this Court ordered the parties to file legal arguments on issues 3, 5, and 6 of the joint memorandums of issues on or before 12th March 2019.

 

 

The three issues set down for trial are:

1.    Whether or not the President of the Republic of Ghana in line with Article 297(a) of the 1992 Constitution has the legal authority to remove from office members of the governing boards of public corporations appointed pursuant to Articles 70(1)(d)(iii), 190(1)(b) and 190(3) of the 1992 Constitution without assigning any just cause.

           

2.    Whether or not section 14 of the Presidential (Transition) Act 2012 (Act 845) is inconsistent with articles 70(1)(d)(iii), 190 and/or 191(b) of the Constitution, 1992; and

           

3.    Whether or not article 19(b) of the Constitution, 1992, also applies to the category of officers mentioned in section 14 of Act 845.

           

2.0 Removal of Members of Boards of Public Corporations Without Just Cause

 

The first issue set down for trial is;

            “Whether or not the President of the Republic of Ghana in line with Article            297(a) of the 1992 Constitution has the legal authority to remove from office members of the governing boards of public corporations appointed pursuant to Articles 70(1)(d)(iii), 190(1)(b) and 190(3) of the 1992 Constitution without assigning any just cause.”

 

The relevant provisions of the Constitution in relation to this issue are articles 297(a), 70(1)(d)(iii), 190(1)(b) and 190(3). They provide as follows.

 

 

Article 297(a)

“In this Constitution and in any other law - (a) the power to appoint a person to hold or to act in an office in the public service shall include the power to confirm appointments, to exercise disciplinary control over persons holding or acting in any such office and to remove the persons from office”

           

 

Article 70(1)(d)(iii)

“70-1. The President shall, acting in consultation with the Council of State, appoint - (d) the Chairman and other members of - (iii) the governing bodies of public corporations.”

 

Article 190(1)(b)

“190. (1) The Public Services of Ghana shall include - (b) Public Corporations other than those set up as commercial ventures…”

           

Article 190(3)

“Subject to the provisions of this Constitution, an act of Parliament enacted by clause (1) of this Article shall provide for - (a) the governing council for the public service to which it relates; (b) the functions of that service; and (c) the membership of that service.”

                       

The main point of contention between the Plaintiff and the Defendant is whether the express requirement for a “just cause” contained in article 191(b) of the Constitution as a basis for the removal of members of the public services of Ghana applies to both public officers appointed under Article 195 and those appointed under article 70 of the Constitution.

           

2.1 Members of the Governing Boards of Public Corporations

The Plaintiff argues that it is obvious from the provisions of the Constitution, 1992, that there are different categories of public officers, ranging from pubic officers who serve in the public services of Ghana, public officers who are agents of the President and serve at his will and pleasure, public officers who occupy elective positions, to public officers who perform judicial functions. Moreover, the Plaintiff argues that article 297(a) of the Constitution only applies within the context of a public officer who can be removed from office by his appointing authority where there is no requirement for the assignment of reasons for such removal.

           

Consequently, the Plaintiff asserts that article 297(a) of the Constitution cannot be invoked to remove a public officer from office where the Constitution or some other law imposes a just cause requirement for the removal of such public officer. In sum, the Plaintiff argues that article 297(a) of the Constitution is wholly and totally irrelevant to the question whether the heads and members of the governing boards of public corporations set up under article 190 of the Constitution are members of the public services of Ghana, and therefore cannot be “removed from office without just cause.”

 

The Defendant contends that article 295 defines a public corporation as: “a corporation or any other body of persons established by an Act of Parliament or set up out of funds provided by Parliament or other public funds.” Unlike the definition provided in Article 190(4), this definition does include public corporations established for commercial purposes. This definition is broad and encompasses all types of public corporations including those set up for commercial ventures. The definition in Article 190(4) is more specific to article 190 and relates to the public service. Additionally, the President having the power to appoint chairmen and other members of such public corporations would have the power of removal of such officers in appropriate cases. It must be noted that the President’s authority for appointment/removal from office of public officers does not extend to the entire staffing population of the public service but only to the chairmen and the governing members as indicated in article 70(1)(d)(iii) of the Constitution.

 

It is the Defendant’s contention that the President has the power to remove public officers from office if the same is warranted by law, this is either by constitutional provisions or by provisions in an Act of Parliament establishing the public corporation.

 

After a thorough review and consideration of this issue and the relevant constitutional provisions we hold that members of the governing bodies of statutory boards, corporations, authorities (howsoever described) are not members of the public services, and not public officers by virtue of their membership of the governing body of a statutory board or corporation. They are therefore not governed by article 191(b) of the Constitution.

 

Members of governing bodies are appointed by the President in consultation with the Council of State. Such members of governing bodies, appointed pursuant to article 70 are not members of the service in respect of which they serve on the governing body. So, for example a person who serves on the Council of the University of Ghana as a representative of the alumni association, or Conference of Heads of Assisted Secondary Schools (CHASS) or by appointment of the President does not become a public officer or a member of the public service by virtue of his or her membership of the governing council. But the issues raised are much more complex and therefore our conclusions much more nuanced than the above Public corporations, authorities (howsoever) described that fall under article 190 of the Constitution have staff and officials employed by the corporation or authority.

 

2.2 Staff of Public Corporations

The overwhelming majority of staff of public corporations and authorities would be members of the public service as described by article 190 of the Constitution. Such staff must, in accordance with article 195 of the Constitution, be appointed by the President acting in accordance with the advice of the governing board of the corporation given in consultation with the Public Services Commission. Such persons are public officers and therefore governed by article 191(b).

3.0 The Constitutionality or Otherwise of Paragraph 6 of the Schedule to section 14(1) of Act 845

 

The second issue set down for trial is;

            “Whether or not section 14 of the Presidential (Transition) Act, 2012 (Act 845)       is inconsistent with articles 70(1)(d)(iii), 190 and/or 191(b) of the Constitution, 1992.”

           

3.1 Relevant Constitutional and Statutory Provisions

The relevant provisions of the Constitution in relation to this issue are articles 70(1)(d)(iii), 190 and 191(b). They provide as follows.

 

Article 70(1)(d)(iii)

“The President shall, acting in consultation with the Council of State, appoint - (d) the Chairman and other members of - (iii) the governing bodies of public corporations.”

 

Article 190

1.    The Public Services of Ghana shall include –

a.    the Civil Service,

            the Judicial Service,

            the Audit Service,

            the Education Service,

            the Prisons Service,

            the Parliamentary Service,

            the Health Service,

            the Statistical Service,

            the National Fire Service,

            the Customs, Excise and Preventive Service,

            the Internal Revenue Service,

            the Police Service,

            the Immigration Service; and

            the Legal Service;

 

b.    public corporations other than those set up as commercial ventures;

c.    public services established by this Constitution; and

d.    such other public services as Parliament may by law prescribe.

 

2.    The Civil Service shall, until provision is otherwise made by Parliament, comprise service in both central and local government.

 

3.    Subject to the provisions of this Constitution, an Act of Parliament enacted by virtue of clause (1) of this article shall provide for –

a.    the governing council for the public service to which it relates;

b.    the functions of that service; and

c.    the membership of that service.

           

4.    For the purposes of this article “public corporation” means a public corporation established in accordance with article 192 of this Constitution other than one set up as a commercial venture.

 

Article 191(1)(b)

A member of the public services shall not be – (b) dismissed or removed from office or reduced in rank or otherwise punished without just cause. 

 

Section 14 of Act 845 provides as follows.

1. On the assumption of office of the person elected as President, a person holding any of the offices specified in the Schedule shall cease to hold that office, and shall be paid the relevant retirement benefits and enjoyment of facilities as provided by law.

 

2. The functions of office of a person who ceases to hold office under subsection (1) shall be performed by a person so appointed by the President for the period specified in writing by the President.

           

3. A public officer, whose office is not specified in the Schedule, continues to hold office on the assumption of office by the person elected as President, subject to the provisions of the Constitution and of the relevant law applicable to that public officer.

 

The schedule to section 14 provides that;

1.    The persons holding office under the Presidential Office Act 1993 (Act 463).

2.    Ministers and Deputy Ministers of State.

3.    Regional and Deputy Regional Ministers of State.

4.    Special Assistants, Special Aides to the President, to the Vice-President and to the Ministers of State, Deputy Ministers, Regional Ministers, and Deputy Regional Ministers.

5.    Non-career Ambassadors and High Commissioners.

6.    Persons appointed by the President or a Minister of State as members of Statutory Boards and Corporations.

 

3.2 Intepretation of the Provisions

The Plaintiff submitted that the categories of persons specified in paragraph 6 of the schedule qualify as members of the public services of Ghana pursuant to article 190(b), and as such, cannot be removed from office without just cause. He contends ‘Just cause’ is not satisfied by a change of President. Furthermore, the Plaintiff argued that heads and members of governing boards of public corporations possess constitutional and legal protection, which includes tenure, and cannot be removed solely due to a transition in government. The Plaintiff asserted that public corporations enjoy operational autonomy and independence, and do not operate at the whim of the President.

 

The Defendant on the other hand, submitted that section 14 of Act 845 satisfies the “just cause” requirement of articles 190(1)(b) and 191(b), and is consistent with the Constitution. The Defendant contended that the purpose of Act 845 is to provide for a smooth transition of power from one democratically elected government to another and that to allow Article 191(b) of the Constitution to thwart section 14 of Act 845, would create confusion and defeat the purpose of the Act. The Defendant further urged the Court to employ a purposive approach in interpreting Article 70(1)(d)(iii), 190 and/or 191(b) and section 14 of Act 845 to achieve the objective of Act 845.

 

After a careful consideration of the relevant constitutional provisions we are firmly of the view that section 14 of Act 845 is prima facie not unconstitutional. The constitutional and legislative provisions need to be analysed and teased out very carefully in order to delineate the full scope and application of section 14.

 

The key provision is Paragraph 6 of the of the schedule to section 14. Section 14 provides that on the assumption of office of the person elected as President, a person holding any of the offices specified in the scheduled shall cease to hold that office. Paragraph 6 of the category of persons specified in the schedule are “Persons appointed by the President or the Minister of state as members of Statutory Boards and Corporations.”

 

The key question is; what category of persons is affected by paragraph 6. A purposive interpretation must be adopted in intepreting section 14 and the relevant constitutional provisions?

 

The interpretation Act 2009 (Act 792) enjoins us to adopt a purposive approach in the interpretation of legislation. This Court has also held in a long line of cases that a purposive approach must be taken in the interpretation of the Constitution. Reference is made Adjei-Twum v. Attorney General and Akwetey [2005-2006] SCGLR 732; Republic v. High Court (Fast Track Division), Ex parte; CHRAJ (Richard Anane, Interested Party) [2007-2008] 213 and Asare v. Attorney General [2003-2004] 2 SCGLR 823. In Asare v. Attorney General, (supra) Date- Bah JSC encapsulated this approach in the following words:

            “What interpretation is to be given to the words should depend upon the    court’s perception of the purpose of the provision and the context of the words, rather than on their dictionary meaning.”

           

Kludze J.SC expressed it thus;

             “I agree that we must adopt a purposive construction of the constitutional             provisions. That means that we do not construe words in the abstract but           within the context in which they were used…. the fundamental rule is for the     court to construe every enactment with the purpose of effectuating the true       intent of the framers of the 1992 Constitution.”

 

What then is the purpose of Act 845? The objective of Act 845 is captured in the preamble to the Act. It is; “An Act to establish arrangements for the political transfer of administration from one democratically elected President, to another democratically elected President, to provide for the regulation of political transfer of power and for related matters.”

 

3.3 Scope and Effect of Section 14 of Act 845

Having established the purpose of Act 845 we now proceed to interpret section 14 in order to determine its true scope and effect.

           

Section 14(1) of Act 845 provides that on the election and assumption of office of a new President, persons including those appointed by the former President or a former Minister of State as members of statutory boards and corporations shall cease to hold office.

 

We will begin our examination of the scope and effect of section 14 by purposively interpreting the phrase “Persons appointed by the President or Minister of State”.

Article 70(1) of the Constitution provides that;

The President shall, acting in consultation with the Council of State, appoint

(d) the Chairman and other members of

(i) the Public Services Commission

(iii) the governing bodies of public corporations

 

Article 195 (1) of the Constitution on the other hand, provides that;

            “Subject to the provisions of this Constitution, the power to appoint persons to hold or to act in an office in the public services shall vest in the President acting in accordance with advice of the governing Council of the Service concerned given in consultation with the Public Services Commission.”

 

Members of governing bodies of public corporations are appointed by the President, acting in Consultation with the Council of State pursuant to article 70 (1) (d) (iii) and the constitutive Act of a particular corporation. The permanent staff of public corporations, on the other hand, are public officers appointed by the President, acting in accordance with the advice of the governing board of the corporation concerned given in consultation with the Public Services Commission, pursuant to article 195(1) and the constitutive Act of the public corporation concerned.

 

Our first conclusion is therefore that paragraph 6 of the schedule to section 14 of Act 845 only applies to members of the governing bodies of statutory boards and corporations appointed by the President or a Minister of State and not to the permanent Staff of these public corporations who are public officers and not affected by Act 845. This is reiterated by section 14(3) of Act 845 which excludes public officers from the operation of the section.

 

The Composition, appointment, tenure and removal of the members of the governing bodies of Statutory Boards and Corporations is determined by the constitutive Acts of particular institutions and no generalization can be made. The provisions of a random selection of constitutive Acts will be examined to buttress this conclusion.

 

3.3.1 Appointment of Members of Governing Bodies

Section 11 of the University of Ghana Act provides that;

11.“The governing body of the University is a Council consisting of

(a) the Chancellor;

(b) a chairperson;

(c) the Vice-Chancellor;

(d) four persons appointed by the President taking into account

            (i) the need for gender balance,

            (ii) expertise in finance,

            (iii) expertise in management;

(e) one representative of the alumni of the University;

(f) two representatives of Convocation, one of whom is from the non-teaching staff;

(g) one representative of the National Council for Tertiary Education nominated by the Council for Tertiary Education;

(h) a Vice-Chancellor of an African University appointed by Council;

(i) an elected representative of the heads of second cycle institutions in Ghana;

(j) four other persons appointed by Council for outside the University two of whom are women;

(k) one representative of the University Teachers Association;

(l) one representative of undergraduate students of the University elected by the Students Representative Council;

(m) one representative of post-graduate students of the University branch of the Graduate Students Association; and

(n) one representative of the Teachers and Education Workers Union.”

 

It is quite clear that apart from the Chairperson and four other persons appointed by the President, members of the University Council are not appointed by the President.

           

On the other hand, section 3 of the National Petroleum Authority Act, 2005 (Act 691) provides that;

 

3.(1) “The governing body of the Authority is a Board consisting of

(a) the chairperson,

(b) the Chief Executive

(c) one representative of the consuming public other than a person specified in paragraphs (d)and (e),

(d) one representative of the petroleum workers union,

(e) one representative of

(i) the Ghana National Chamber of Commerce, or

(ii) the Ghana Chamber of Mines, and

(f) three persons, at least one of whom is a woman and each of whom has specialised knowledge and experience in matters relevant to the functions of the Authority.

(2) The members of the Board shall be appointed by the President in accordance with article 70 of theConstitution.”

 

The members of the governing board of the National Petroleum Authority are therefore appointed by the President in consultation with the Council of State.

           

Section 4 of the Forestry Commission Act, 1999 (Act 571) also provides for the appointment of members of the board by the President acting in consultation with the Council of State;

           

4.(1) The governing body of the Commission is a Board consisting of

(a) the chairman,

(b) the Chief Executive of the Commission,

(c) one representative of the National House of Chiefs,

(d) one representative of the timber trade and industry,

(e) one representative of the wildlife trade and industry,

(f) one representative of the Ghana Institute of Professional Foresters,

(g) one representative of non-governmental organisations involved in forest and wildlifemanagement,

(h) one representative of the Lands Commission, and

(i) three other persons with financial, commercial or managerial experience nominated by theMinister, at least one of whom is woman.

(2) The members of the Board shall be appointed by the President in accordance with article 70 of theConstitution.

 

Section 4(1) and (2) of the Securities Industry Act, 2016(Act 929) provides for the governing board of the Securities and Exchange Commission as follows;

 

4.(1) The governing body of the Commission is a Board consisting of

(a) a chairperson;

(b) the Director-General;

(c) the two Deputy Directors- General;

(d) one representative each from the following:

            (i) Bank of Ghana not below the rank of a Director;

            and

            (ii) Ministry of Finance not below the rank of a Director;

(e) the Registrar-General or the representation of the Registrar-General; and

(f) four other persons comprising

(i) a lawyer qualified to be appointed a Justice of the Superior Court of Judicature nominated by the General Legal Council;

(ii) a chartered accountant nominated by the Institute of Chartered Accountants, Ghana;

(iii) an academic researcher in a relevant field; and

(iv) a woman

(2) The members of the Board shall be appointed by the President in accordance with article 70 of the Constitution.

 

Section 8(1) and (2) of the National Pensions Act, 2008 (Act 776) provides for the appointment of members of the Governing board as follows;

8.(1) The governing body of the Authority is a Board consisting of

(a) a chairperson,

(b) the Chief Executive of the Authority,

(c) one person nominated by the President,

(d) a representative of the Ministry responsible for pensions, not below the rank of a director,

(e) a representative of Bank of Ghana,

(f) a representative of the Securities and Exchange Commission,

(g) two representatives of OrganisedLabour,

(h) one representative of the Ghana Employers’ Association,

(i) one representative of the National Pensioners Association, and

(j) a representative of the Attorney-General and Minister for Justice not below the rank of a Principal State Attorney.

(2) The chairperson and the other members of the Board shall be appointed by the President in accordance with article 70 of the Constitution.

 

3.3.2 Tenure of Members of Governing Bodies

Section 13 of the University of Ghana Act 2010 (Act 806) provides that;

13.       (1) A member of the University other than the Vice-Chancellor who is a member of the Council shall hold office for a period of two years and eligible for re-appointment for a second term.

            (2) A member of the Council who is not a member of the University shall hold      office for a period of three years and is eligible for re-appointment for a second term.

            (3) A member of the Council is not entitled to remuneration for membership of the Council but the member is entitled to allowances that the Council may determine.

            Section 5 (1) of the Forestry Commission Act 1999 (Act 571) provides that;

5(1). A member of the Board, other than the chief executive and the representative of the Lands Commission, shall hold office for a period not exceeding four years and is eligible for re-appointment.

 

Section 5 (1) of the National Petroleum Authority Act, 2005(Act 691) provides that;

5(1).    A member of the Board other than the Chief Executive shall hold office for a period not exceeding four years and is eligible for re-appointment but a member shall not be appointed for more than two terms in succession.

           

3.3.3 Removal of Members of Governing Bodies

The University of Ghana Act does not expressly provide for the removal of a member of Council. Section 14 of the Act specifies a member of circumstances in which the office of a member of Council shall become vacant.

 

Section 5(4) of the Forestry Commission Act 1999 (Act 571), on the other hand expressly provides that;

 

5.(4) The chairman or any other member of the Board may be removed from office by the President for inability to perform the functions of office or for a stated misbehaviour or for any other just cause.

 

 

 

 

Section 5(5) of the National Petroleum Authority Act, 2005 (Act 691) provides that;

5.(5) The President may by letter addressed to a member revoke the appointment of that member for just cause and in consultation with the nominating body.

 

The just cause requirement for the removal of members of the governing bodies of statutory boards and corporations is not provided for by some constitutive Acts of statutory boards and corporations. For example, section 9 of the National Pensions Act, 2008 (Act 766), which establishes the National Pensions Regulatory Authority, provides that;

 

9.         (1) A member of the Board shall hold office for a period not exceeding three years and is eligible for re-appointment but a member shall not be appointed for more than two terms.

            (2) Subsection (1) does not apply to the Chief Executive.

            (3) A member of the Board may at any time resign from office in writing

            addressed to the President through the Minister.

            (4) A member of the Board, who is absent from three consecutive meetings of

            the Board without reasonable excuse ceases to be a member of the Board.

            (5) The President may by letter addressed to a member revoke the   appointment of that member.

 

Similarly, section 9 of the Securities Industry Act, 2016 (Act 929), which establishes the securities and Exchange Commission does not require just cause for the removal of a member of the Board of the Commission. Section of Act 929 provides that;

           

9. Members of the Board and members of the committee of the Board shall be paid allowances approved by the Minister.

 

3.4 Effect of Section 14 on Members of Governing Bodies of Statutory Boards and Corporations

 

What then is the effect of section 14 of Act 845 on the tenure of members of the governing bodies of statutory boards and corporations of persons appointed by the President or a Minister of State? The intendment of Section 14 is clear. It is to ensure that a new President is not saddled with non-career office holders appointed by a previous President. And yet section 14 conflicts with the tenure provisions of the constitutive Acts of many statutory boards and corporations. Act 845 is later in point of time than many of the constitutive Acts. Act 845 is also specific, in that it applies only to Presidential transitions. The respective constitutive Acts are also specific in the sense that they apply to particular Statutory Boards and Corporations. On balance, and applying a purposive approach to the interpretation to the Constitution and all the relevant legislation, we hold that the effect of Section 14 of Act 845 is to automatically remove from office all persons appointed by a previous President or Minister of State as a representative of the President or Minister on the assumption of office of a new President, irrespective of the tenure provisions of the Act establishing the Statutory Board or Corporation. However, section 14 of Act 845 does not affect representatives of constituent bodies and interests on the governing body who can only be removed by the body or interest that they represent, and in accordance with the tenure and removal provisions of the Act establishing the statutory board or corporation.

 

3.5 Chief Executives of Statutory Boards and Corporations

This brings us to a consideration of the position of the executive heads (howsoever described) of statutory boards and corporations. Executive heads of statutory boards and corporations are usually members of the governing body of their institution but they are members of the governing body by virtue of their position as executive head. Are they affected by section 14 of Act 845 or not? In our considered opinion the answer to the above question lies in the mode of appointment of the executive head concerned and the terms and conditions of his appointment.

           

Article 195 (3) of the Constitution provides that; “The power to appoint persons to hold or act in an office in a body of higher education research or professional training shall vest in the council or other governing body of that institution or body”.

In accordance with article 195(3), the University of Ghana Act, 2010 (Act 806), for example, provides in section 9 as follows:

            9.         (1) The University Council shall appoint the Vice-Chancellor who is                                   answerable to the Council and is the academic and administrative head                and chief disciplinary officer of the University.

                        (2) The Vice-Chancellor shall hold office on terms and conditions                           specified in the letter of appointment.

                        (3) The Vice-Chancellor shall hold office for a period of up to four years                 and is eligible for re-appointment for another term only.

 

Vice Chancellors and heads of institutions of higher education are appointed by their councils and not the President or Minister of State. They are also public officers under article 190 and therefore not within the ambit of section 14 of Act 845.

 

Other executive heads are provided by article 195(1) and the relevant provisions of the constitutive Acts of particular statutory boards or corporations. Article 195(1) provides that public officers shall be appointed by the President in accordance with the advice of governing council of the service concerned given in consultation with the Public Services Commission.

           

Section 48(1) to (3) of the National Petroleum Authority Act, 2005 (Act 691) provides for the appointment, tenure and conditions of service of the Chief Executive as follows;

            48.       (1) The President shall in accordance with article 195 of the                                      Constitution, appoint the Chief Executive for the Authority.

                        (2) The Chief Executive shall hold office on the terms and conditions                     specified in the letter of appointment.

                        (3) The Chief Executive shall be a member of the Board

 

Section 12 of the Forestry Commission Act, 1999 (Act 571) provides for the appointment and tenure of the chief Executive as follows:

            12.       (1) There shall be a chief executive of the Commission who shall be the                executive and administrative head of the Commission.

                        (2) The chief executive shall be appointed by the President in                                              accordance with article 195 of the Constitution and shall hold office for                 the period and on the other terms and conditions specified in the letter of appointment.

 

Section 16 of the National Pensions Act, 2008 (Act 766) provides for the appointment and tenure of the Chief Executive of the National Pensions Regulatory Authority as follows;

            16.       (1) The President shall, in accordance with article 195 of the                                                 Constitution, appoint a person with expertise in pensions, actuarial                                    science, insurance or related field as the Chief Executive Officer of the                 Authority.

                        (2) The Chief Executive Officer shall hold office on the terms and                            conditions specified in the letter of appointment.

 

And lastly, section 11 (1) and (2) of the Securities Industry Act, 2016 (Act 929) provides for the appointment and tenure of the Director-General of the Securities and Exchange Commission as follows;

            11.       (1) The President shall in accordance with article 195 of the                                      Constitution appoint a Director-General of the Commission who shall be the chief executive of the Commission.

                        (2) The Director-General is shall hold office on the terms and conditions                specified in the letter of appointment.

 

It can be deduced from article 195(1) and the sample legislation we have examined that the Executive heads of Statutory Boards and Corporations are appointed by the President acting in accordance with the advice of the governing board concerned given in consultation with the Public Services Commission.

 

Their tenure and terms and conditions are specified in their letters of appointment.

Are executive heads of Statutory Boards and Corporations affected by section 14 of Act 845? Upon a careful consideration and a purposive interpretation of relevant constitutional and legislative provisions, it is our considered view that executive heads of statutory boards and corporations are not affected by section 14 of Act 845. They are public officers under article 190 of the Constitution. They hold office under terms and conditions stated in their letters of appointment and may only be removed in accordance with those terms.

 

3.6 Act 845 and the Dissolution of Boards

A purposive interpretation of section 14 of Act 845 leads us to the conclusion that the provision must be interpreted restrictively. Thus interpreted, we hold that the section does not have the effect of dissolving all governing bodies of Statutory Boards and Corporations on the election and assumption of office of a new President. In fact, there is no reference to governing bodies in section 14. The section refers to “a person holding any of the offices specified in the schedule shall cease to hold that office.” The Schedule then lists the persons holding specified offices. By no stretch of the imagination can this be interpreted to mean the automatic dissolution of governing bodies. If Section 14 intended to automatically dissolve the governing bodies of Statutory Boards and Corporations, it would have said so. All that section 14 does is that certain specified persons shall cease to hold office. The precise effect on the viability of a governing body following the ceasure of persons appointed by a President or Minister of State to hold office will depend on the composition of the governing body and the provisions of the constitutive Act of the Statutory Board of Corporation.

 

3.7 State Companies

The Republic of Ghana is the sole, majority or significant shareholder in a number of companies. These include Ghana Airports Company Ltd, GCB Bank Ltd, Goil Ltd, State Housing Company Ltd and National Investment Bank Ltd. These are not Statutory Boards or Corporations. They are limited liability companies incorporated under the Companies Act, 1963 (Act 179). Some are listed on the Ghana Stock Exchange. Upon purposive interpretation of section 14 of Act 845, we hold that members of the governing boards of these companies and chief executives are not affected by section 14 of Act 845. Members of the boards and Chief executives of such companies shall only be removed in accordance with the articles of incorporation of the company and the Companies Act, 1963 (Act 179).

 

3.8 Section 14 and Constitutional Governing Bodies

The Constitution establishes a number of governing bodies for public services. These include the Judicial Council, the Police Council and the Public Services Commission. These governing bodies are established by the Constitution, not legislation and the public services they govern are not Statutory Boards and Corporations. A purposive interpretation of the section 14 of Act 845 therefore leads us to the inexorable conclusion that the section does not apply to such constitutional governing bodies and such governing bodies are not automatically dissolved upon the assumption of office of a new President. We are not unmindful of the fact that some of the members of such constitutional governing bodies would have been appointed by a previous President and that the purpose and intendment of Act 845 is not to saddle a new President with the appointees of a previous President. We are, however of the considered view that the dissolution of such constitutional governing bodies is not required for the purpose and intendment of Act 845 to be realized. A new President must make his appointments unto such bodies as soon as possible upon his assumption of office. It is important that the work and functioning of these bodies are not unduly paralysed following the assumption of the office of the new President. The situation where such bodies are incapacitated, sometimes for upwards of six months, following the assumption of office of a new President is not mandated by the Constitution and Act 845, and should not continue.

 

4.0 Are Members of the Governing Bodies of Statutory Boards and Corporations Covered by the “Just Cause” Requirements of Article 191(1)(b) ?

 

The third issue set down for trial is whether or not article 191(b) of the Constitution, 1992, also applies to the category of officers mentioned in section 14 of Act 845.

           

Article 191(b) of the Constitution provides that a member of the public services shall not be “dismissed or removed from office or reduced in rank or otherwise punished without just cause”. A member of the public services shall not be – (b) dismissed or removed from office or reduced in rank or otherwise punished without just cause.  

 

The Plaintiff maintained that article 191(b) applies to members of the public service of Ghana only. He contended that this includes the heads and members of the governing boards of public corporations as well as the “permanent staff” of the public services of Ghana. He further argued that the categories of persons specified in paragraphs 1, 2, 3, 4 and 5 of the schedule to section 14 serve at the pleasure of the President, and can therefore be removed from office at any time for any reason or no reason at all. But he submitted that those specified in paragraph 6 are members of the public service and cannot be removed on the assumption of office of a new President as this would violate article 191(b) of the Constitution.

 

The Defendant on the other hand asserted that a purposive approach reveals that the objective of Act 845 is to allow the new President to select the people who believe in his policies and programs, as opposed to those who may frustrate his intentions. He therefore maintained that the “just cause” requirement of Article 191(b) is satisfied by Act 845.

 

We have carefully examined the submissions of the parties and analysed the relevant constitutional and statutory provisions and it is our considered opinion that the contention of the plaintiff is misconceived. The category of officers mentioned in section 14 of Act 845, with the exception of public officers appointed in accordance with article 195(1), are not members of the public service and therefore not governed by article 191(b). 

 

5.0 Conclusion

From the foregoing we conclude as follows:

 

1.    Members of governing boards of statutory boards and corporations appointed in accordance with article 70(1)(d)(iii) of the Constitution are not members of the Public Service and their tenure is not governed by articles 191 and 195 of the Constitution. Therefore, each person may be removed at will by the President. We declare accordingly.

 

2.    Upon a true and proper interpretation, a Public Service Officer appointed in accordance with article 195 of the Constitution and may not be removed save in accordance with the terms and conditions of his or her contract of engagement or in the absence of such, for just cause pursuant to articles 191 and 195 of the Constitution.

 

 

3.    To the extent that section 14 of the Presidential (Transition) Act 2012, (Act 845) requires Chief Executives or Directors-General (howsoever described) of public boards or corporations to cease to hold office upon the assumption of office by a person elected as President of the Republic of Ghana, the same is hereby declared to be unconstitutional and void for being in contravention of articles 190 and 191 of the Constitution.

 

    PROF. N. A. KOTEY

(JUSTICE OF THE SUPREME COURT)

 

AKUFFO (MS), CJ:-

I agree with the conclusion and reasoning of my brother Kotey, JSC.

                                                                         

                

 

                                                            S. A. B. AKUFFO (MS)

   (CHIEF JUSTICE)

 

DOTSE, JSC:-

I agree with the conclusion and reasoning of my brother Kotey, JSC.

                                                                         

     

J. V. M. DOTSE

(JUSTICE OF THE SUPREME COURT)

 

GBADEGBE, JSC:-

I agree with the conclusion and reasoning of my brother Kotey, JSC.

                                                                         

     

N. S. GBADEGBE

(JUSTICE OF THE SUPREME COURT)

 

BENIN, JSC:-

I agree with the conclusion and reasoning of my brother Kotey, JSC.

                                                                         

     

  A. A. BENIN

(JUSTICE OF THE SUPREME COURT)

 

MARFUL-SAU, JSC:-

I agree with the conclusion and reasoning of my brother Kotey, JSC.

                                                                         

                

S. K. MARFUL-SAU

(JUSTICE OF THE SUPREME COURT)

 

AMEGATCHER, JSC:-

I agree with the conclusion and reasoning of my brother Kotey, JSC.

                                                                         

                

            N. A. AMEGATCHER

(JUSTICE OF THE SUPREME COURT)

 

 

COUNSEL

 

SYLVESTER WILLIAMS, CHIEF STATE ATTORNEY FOR DEFENDANT WITH HIM AURIEL ASARE BOATENG, ASSISTANT STATE ATTORNEY, AKAWARI ATINDEM, ASSISTANT STATE ATTORNEY AND VIVIAN OPOKU AGYAKWA, SENIOR STATE ATTORNEY FOR THE DEFENDANT.

GODWIN TAMEKLO FOR THE PLAINTIFF.

 

 

JUDGMENT

 

KOTEY, JSC:-

This appeal is taken against the judgement of the Court of Appeal, which judgment reversed a judgment of the trial High Court.

By a unanimous decision, the Court of Appeal allowed in part an appeal filed by the Defendant/Appellant/Respondent (hereinafter the Defendant) against the decision of the High Court entered in favour of the Plaintiff/Respondent/Appellant (hereinafter the Plaintiff).

 

Facts

A brief background of the events leading to these proceedings would be necessary for a better appreciation of the issues raised in this appeal.

The Plaintiff was the Deputy Branch Manager of the Defendant bank’s Tema Fishing Harbour Branch. The Plaintiff was presented with two transfer request letters from Emefs Construction Limited, a customer of the Defendant, for the transfer of £32,400 and £82,364 to a customer of Emefs Construction Limited. The Plaintiff signed against the signatures on the transfer request letters and forwarded them to the International Business Centre (IBC) of the Defendant bank which deals with foreign transfers. After the IBC had completed its processes, it approved the request and duly transferred the said sums of £32,400 and £82,364 to the named beneficiary.

It subsequently transpired that the signature on the transfer request letters was a forgery and the Defendant bank was unable to recover the amounts transferred and thereby lost the £114,764.

The Defendant bank then charged the plaintiff with negligence in the verification of the signature on the transfer request letters. It contended that it was the responsibility of the Plaintiff to verify the signatures on the transfer request letters with the signatures and mandates in the Defendant Bank’s Core Banking System (Flexcube), that the Defendant failed to do this diligently, and that this set in motion the sequence of events that led to the wrong transfer and loss of the sum of £114,764.

The Defendant denied it was his sole responsibility, as Acting Branch Manager, to verify the signatures on the transfer request letters. He further contended that he had in fact verified the signatures on the transfer request letter before stamping and signing the transfer request letters.

After an internal (house) process, the Defendant bank terminated the employment of the Plaintiff. The Plaintiff sued the Defendant for wrongful and unlawful termination of unemployment.

The Plaintiff per his Writ of Summons and accompanying Statement of Claim, claimed against the Defendant as follows:

(a)  A declaration that the Plaintiff was not negligent or incompetent when he verified the signature on the transfer letter from Emefs Construction Limited.

(b)  An order for reinstatement as a Deputy Manager of the Defendant Bank or alternatively payment of accumulated salary from the date of termination of appointment including all the benefits that would have accrued to him if he was still in employment, leave allowance, clothing allowance and any other allowance that would have been entitled to within the period.

(c)  Payment of general damages in the sum of One Hundred Thousand Ghana Cedis (GHS 100,000) for wrongful and unlawful termination of employment.

(d)  Payment of adequate compensation for embarrassment, pain and loss that the Plaintiff suffered as a result of defendant’s actions and inactions.

(e)  Interest on all monies that will be adjudged to be due him from the day it became due.

(f)    Cost including Solicitors fees.

 

At the conclusion of the trial, the High Court entered judgement for the Plaintiff. The Court held that the Defendant had wrongfully and unlawfully terminated the employment of the Plaintiff and awarded damages against the Defendant.

The trial High Court held that it was not satisfied that the Plaintiff had been negligent in the verification of the signatures on the transfer request letters and that it was the IBC that had approved and authorized payment.

The Defendant being dissatisfied with the judgement of the trial High Court appealed to the Court of Appeal. The Court of Appeal allowed the Defendant’s appeal and set aside the judgement of the High Court.

The Court of Appeal held that on the evidence adduced at the trial it was satisfied that it was the responsibility of the Defendant to verify the signature on the transfer request letters. The Court also held that the Defendant had been negligent in his verification of the signatures on the transfer request letters. The Court further held that the employment of the Plaintiff had not been terminated unlawfully or wrongfully as he had been negligent in the performance of his duty and the termination was in accordance with the terms of his contract of employment and the Labour Act, 2003 (Act 651).

 

Grounds of Appeal

Aggrieved by the decision of the Court of Appeal the Defendant lodged an appeal to this Court on the following grounds;

a. The decision of the Court dated 14/12/17 was against the weight of the evidence before the Court.

b. The Court of Appeal failed to analyze and evaluate the entire evidence placed before it particularly the established internal procedures for transfer of money and exhibit ‘P’.

c. The Court of Appeal erred when it held that the termination was not wrongful.

 

Decision of Court of Appeal Against Weight of Evidence and Failed to Analyze and Evaluate the Entire Evidence.

Grounds (a) and (b) were argued together. They claim that the decision of the Court of Appeal was against the weight of the evidence adduced at the trial and failed to analyze and evaluate the entire evidence.

These grounds of appeal therefore raise two issues relating to:

i. Verification of the signatures on the transfer request letters, and;

ii. Authorization and approval for payment by the IBC.

 

 Verification of Signature

This issue may be divided into two;

a. Who is responsible for the verification of the signatures on the transfer request letters, Exhibit ‘A’ and ‘A1’?

b. Were the signatures on the transfer request letters Exhibit ‘A’ and ‘A1’ properly verified in accordance with existing protocol?

 

Responsibility for Verification of signature

The Plaintiff admitted receipt of the transfer request. He also admitted stamping and signing the transfer request letters. He, however, sought to down play his role in the verification of the signatures. He described his role as “only a mere acceptance procedure”.

This was contradicted by the Defendant who contended that the Plaintiff, as Branch Manager, was responsible for the verification of the signatures on the transfer request letters.

The Plaintiff sought to shift responsibility for the verification of the signature on the transfer request letters from himself to the IBC. This was disingenuous. The Plaintiff failed to indicate what the responsibility of the Branch Manager is when a transfer letter is lodged at his branch. He also failed to indicate what his signature and stamp on the transfer request letters was attesting to. The better evidence from Exhibit ‘F’, “Operating Procedure For Handling Request For Import By Direct Transfer and Payment” is that the branch manager is responsible for verification of the signature. If the manager is satisfied that the signature on the letter tallies with what is the in Flexcube he then signs and stamps the transfer request letter and forwards it to the IBC for further action. Verification of the signature is therefore the responsibility of the Plaintiff.

Where, as in this case, the Plaintiff as Branch Manager has verified the signatures on the transfer request letters, the IBC does no further verification of the signature, but proceeds with other approval requirements. The role of the IBC is, by paragraph 6.4 of Exhibit ‘F’ to “ensure that the signature has been verified by the Branch”. In fact, the evidence is that the Flexcube system available at the IBC did not contain the signatures of account holders. It is where a branch manager, does not or is unable to verify a signature, that the IBC will take further action in relation to verification of the signature as per paragraph 6.5 of Exhibit F.

Having regard to the evidence led, we are wholly in agreement with the learned trial judge that the evidence showed that it was in fact the plaintiff’s duty to verify exhibits ‘A’ and ‘A1’ and not, as he contended, the responsibility of the IBC.

The Court of Appeal found on this matter, at page 14 that;

“The Plaintiff’s case that the matter of verifying signatures did not rest with him but with the IBC was contradicted by Plaintiff’s document exhibit ‘F’ the document titled ‘Operating Procedure for Handling request for import by Direct Transfer and Payment’. That document was quite unequivocal that the verification of signatures was to be done at the level (Paragraph 6.4). While the IBC staff were to ensure that signatures were correct (Paragraph 6.5 and 6.6), it did not, in the face of clear instructions of paragraph 6.4, relieve the Branch Manager (the plaintiff who was a Deputy Manager was in charge of the Branch at the material time), of his responsibility to do the verification”.

On the preponderance of the evidence adduced at the trial, it is our considered view that the trial High Court and the Court of Appeal were right in finding that responsibility for the verification of the signatures on the transfer letters lay with the Plaintiff and not the IBC.

Did the Plaintiff Verify the Signatures on the Transfer Request Letters according to existing Protocol?

The plaintiff gave evidence before the House Committee that Emefs Construction Limited had three signatures in the system when in fact it had only one. The evidence is to the effect that the Plaintiff did not verify the signatures on the transfer letters with the signature in the Flexcube system. The Plaintiff conceded that he used signatures on other letters from  Emefs Construction Limited to verify the signatures on the transfer letters, Exhibits ‘A’ and ‘A1’. This was contrary to existing protocol and wrongful.

On the preponderance of the evidence, the Court of Appeal was right in holding that the Plaintiff did not verify the signatures on the transfer request letter according to established protocol.

We therefore dismiss grounds (a) and (b) of the appeal and affirm the decision of the Court of Appeal that it was the responsibility of the Plaintiff to verify the signatures on Exhibits ‘A’ and ‘A1’ and that the Plaintiff failed to do so in accordance with existing protocol.

 

“Wrongful Dismissal” and /or “Unlawful Termination”

 Ground C of the grounds of appeal is that “the Court of Appeal erred when it held that the termination was not wrongful. This raises the question of whether the termination of the Plaintiff’s employment was “wrongful” and/or “unfair”.

Wrongful Dismissal 

The trial High Court had held that the Plaintiff’s employment was unfairly terminated as it was in contravention of section 62 of the Labour Act, 2003 (Act 651).

The Court of Appeal reversed this finding and held that the termination of the Plaintiff’s employment was not wrongful or unlawful but was in accordance with his contract of employment. The Rules and Conditions of Service, Exhibit ‘G’ provide in Section 12.0 that; “Either party i.e. the employee or the bank may terminate the Contract of Employment by giving the other party a month’s salary in lieu of notice”. The Court further held that the termination of the employment of the Plaintiff was not in violation of Act 651.

The termination of the Plaintiff’s employment was by a letter, Exhibit ‘D’. It stated that the Plaintiff’s actions amounted to gross negligence and that his employment was being terminated in accordance with section 12 of Exhibit ‘G’.

We agree with the Court of Appeal that “the respondent’s admission of failure to use the Flexcube , which was the Defendant bank’s protocol for the verification of signatures, supported the claim of negligence or incompetence in the performance of his duty as contained in this letter of termination.”

We have already held that the Plaintiff was negligent in the performance of his duty to verify the signatures on the transfer request letters. Section 11.4 of Exhibit G, titled “Rules and Conditions of Service” provides that the Bank shall dismiss an employee after the appropriate procedure has been followed. The dismissed shall be as a result of violation and breach of these Rules and Conditions, the Code of Conduct and for just and reasonable cause involving dishonesty, willful refusal to obey legitimate and reasonable instructions, negligence of duty and gross misconduct.

But an employer is not really required to give any reasons for the termination. Once the employer complied with section 12 of the Rules and Conditions of Service by giving either one month’s notice in writing or one month’s salary as lieu thereof, then the termination is not wrongful. In Kobea & Ors v. Tema Oil Refinery [2003-2004] SCGLR 1033, per Dr Twum JSC at 1039 stated;

“At common law, an employer and employee are free and equal parties to the contract of employment. Hence either party has the right to bring the contract to an end in accordance with his terms. Thus an employer is legally entitled to terminate an employee’s contract of employment whenever he wishes and for whatever reasons, provided only that he gives due notice to the employee or pay him his wages in lieu of the notice. He does not even have to reveal his reasons much less to justify the termination.”

The termination of the Plaintiff’s employment also complies with the general provisions of the Labour Act, 2003 (Act 651) governing the termination of employment. Sections 15 and 17 of Act 651 provide that;

15. Grounds for termination of employment

A contract of employment may be terminated,

(a)  by mutual agreement between the employer and the worker;

(b) by the worker on grounds of ill-treatment or sexual harassment;

(c) by the employer on the death of the worker before the expiration of the period of employment;

(d) by the employer if the worker is found on medical examination to be unfit for employment;

(e) by the employer because of the inability of the worker to carry out work due to

i. Sickness or accident; or

ii. the incompetence of the worker; or

iii. the proven misconduct of the worker.

 

17. Notice of termination of employment

(1) A contract of employment may be terminated at anytime by either party giving to the other party,

(a)  in the case of the contract of three years or more, one month’s notice or one month’s pay in lieu of notice.

(b)   In the case of a contract of less than three years, two weeks’ notice or two weeks’ pay in lieu of notice; or

(c)  In the case of contract from week to week, seven days’ notice.

(2) A contract of employment determinable at will by either party may be terminated at the close of any day without notice.

(3) A notice required to be given under this section shall be in writing.

(4) The day on which the notice is given shall be included in the period of notice.

The letter of termination, Exhibit ‘D’ stated that the action of the Plaintiff amounted to gross negligence and that he was being terminated pursuant to section 12 of Exhibit ‘G’ which provided that “Either party i.e the employee or the Bank may terminate the contract of employment by giving the other a month’s notice or a month’s salary in lieu of notice”. The termination of the employment of the Plaintiff therefore complied sections 15 and 17 of Act 651.

We therefore affirm the decision of the Court of Appeal that the Plaintiff’s employment was not wrongfully terminated.

 

Unfair termination

The provisions relating to “fair” and “unfair” termination of employment are contained in sections 62 and 63 of Act 651 which provide that;

 

62. Fair termination

A termination of a worker’s employment is fair if the contract of employment is terminated by the employer on any of the following grounds:

(a)    that the worker is incompetent or lacks the qualification in relation to the work for which the worker is employed;

(b)    the proven misconduct of the worker;

(c)    redundancy under section 65;

(d)    due to legal restrictions imposed on the worker prohibiting the worker from the performing the work for which the worker is employed.

 

63. Unfair termination of employment

(1)  The employment of a worker shall not be unfairly terminated by the worker’s employer.

(2)  A worker’s employment is terminated unfairly if the only reason for the termination is

(a)  that the worker has joined, intends to join or has ceased to be a member of a trade union or intends to take part in the activities of the trade union;

(b)  that the worker seeks office as, or has acted in the capacity of, a workers’ representative;

(c)  that the worker has filed a complaint or participated in proceedings against the employer involving alleged violation of this Act or any other enactment;

(d)  the worker’s gender, race, colour, ethnicity, origin, religion, creed, social, political or economic status;

(e)  in case of a woman worker, due to pregnancy of the worker or the absence of the worker from work during maternity leave;

(f)  in the case of a worker with a disability, due to the worker’s disability;

(g)  that the worker is temporarily ill or injured and this is certified by a recognized medical practitioner;

(h)  that the worker does not possess the current level of qualification required in relation to the work for which the worker was employed which is different from the level of qualification required at the commencement of the employment; or

(i)  that the worker refused or indicated an intention to refuse to do work normally done by a worker who at a time was taking part in a lawful strike unless the work is necessary to prevent actual danger to life, personal safety or health or the maintenance of plant and equipment.

(3)  Without limiting the provisions of subsection (2), a worker’s employment is deemed to be unfairly terminated if with or without notice to the employer, the worker terminates the contract of employment

 (a). because the ill-treatment of the worker by the employer, having regard to the circumstances of the case, or

(b). because the employer has failed to take action on repeated complaints of sexual harassment of the worker at the workplace.

(4)  A termination may be unfair if the employer fails to prove that,

(a). the reason for the termination is fair, or

(b). the termination was made in accordance with a fair procedure or this Act.

 

Section 64 then provides that;

64. Remedies for unfair termination

(1) A worker who claims that the employment of the worker has been unfairly terminated by the worker’s employer may be present a complaint of the commission.

(2) If on investigation of the complaint the Commission finds that the termination of the employment is unfair, it may

(a) order the employer to re-instate the worker from the date of the termination of employment;

(b) order the employer to re-employ the worker, in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or

(c) order the employer to pay compensation to the worker.

 

“Unfair termination”, as distinct from the common law concept of “wrongful dismissal”, is therefore a creature of statute, currently the Labour Act, 2003 ( Act 651).;

The Plaintiff in this case did not sue for “unfair termination” but “wrongful dismissal”. As the Court of Appeal noted, “the plaintiff’s suit was grounded on wrongful termination yet the learned trial judge failed to make such a finding, but rather held that his employment was unfairly terminated in that it sinned against S.62 of the Labour Act, 2003 (Act 651)”.

We hold that the trial Court erred when it failed to consider whether the Plaintiff’s employment had been wrongfully terminated under the terms of his contract of employment. This was required of the trial High Court as an initial first step. This failure was a grievous error. There was no basis for the trial High Court’s holding that; “I believe that the Plaintiff’s appointment was terminated under section 62”.

As we have noted, the letter of termination Exhibit D stated quite clearly that the Plaintiff’s employment was being terminated under his contract of employment and pursuant to section 12 of the Rules and Conditions of service, Exhibit G.

The trial High Court’s holding that the termination of the Plaintiff’s employment was in violation of the Labour Act, 2003 (Act 651) is therefore untenable as this is not an action for “unfair termination”.

Furthermore, under section 62 the termination of a worker’s employment is fair if the contract of employment is terminated by the employer because the worker is incompetent. We therefore hold that the termination of the Plaintiff’s employment was not “unfair” in terms of Act 651 as the Plaintiff was incompetent in the performance of his duty.

Conclusion

In the result, we would dismiss all the Plaintiff’s grounds of appeal. The appeal is accordingly dismissed in its entirety as being without any merit.

 

             PROF. N. A. KOTEY

(JUSTICE OF THE SUPREME COURT)

BAFFOE-BONNIE, JSC:-

I agree with the conclusion and reasoning of my brother Prof. Kotey, JSC.

 

                                                                         

                                                                     P. BAFFOE-BONNIE

(JUSTICE OF THE SUPREME COURT)

GBADEGBE, JSC:-

I agree with the conclusion and reasoning of my brother Prof. Kotey, JSC.

 

                                                                         

                                                                       N. S. GBADEGBE

(JUSTICE OF THE SUPREME COURT)

 

PWAMANG, JSC:-

I agree with the conclusion and reasoning of my brother Prof. Kotey, JSC.

 

                                                                         

                 G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

DORDZIE (MRS.), JSC:-

I agree with the conclusion and reasoning of my brother Prof. Kotey, JSC.

 

                                                                         

A.   M. A. DORDZIE (MRS.)

(JUSTICE OF THE SUPREME COURT)

 

COUNSEL

GORDON C. AKPADIE FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

NII ARDAY WONTUMI FOR THE DEFENDANT/APPELLANT/RESPONDENT.

 

 

 
 

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