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Labour –
Contract of employment –
Suspension - Whether the letter
of suspension earlier on
referred to in the course of
this judgment was justified
under the contract between the
parties -
HEADNOTES
The
respondent herein, who commenced
the action as plaintiff at the
High Court, Accra was at the
time material to the action The
Retail Network Development
Manager of the appellant’s
company. He had been in this
official position for sixteen
years and was a Senior officer.
In November of 2005, the Acting
Manager Director of the
appellant’s company, informed
him that some employees of the
company had been arrested and
that the respondent should go to
the Police Station at Legon to
give a statement to the Police.
It turned out that two mechanics
who were employees of the
company at East Legon filling
Station had been arrested. The
respondent gave a statement to
the Police and reported later to
the Police Station on subsequent
days. On the 1st
of November 2005, the respondent
was at work when the Acting
Managing Director of the
appellant company handed a
letter to him which sought to
suspend him as an Officer of the
company The reason canvassed for
the respondent’s suspension was
that he had been implicated in
the ongoing police
investigations. The respondent
contended that the Police did
not make any adverse findings
against him and did not charge
him with any offence. It was
further contended by the
respondent at no point in time
did the appellant company invite
him to confront him with any
allegations of impropriety
before he was suspended. The
respondent’s Solicitor wrote to
the appellant company to
reconsider the decision to
suspend the respondent as
according to the Solicitor, the
decision sinned against the
basic rules of natural justice.
The appellant justified the
decision to suspend the
respondent. Following the
response from the appellant
company, the respondent caused
the action herein to be
commenced against the appellant
seeking among other reliefs a
declaration that his suspension
from the employment was null and
void and of no effect.
The matter
proceeded to a full scale trial
at the end of which the learned
trial Judge of the High Court,
Accra made a determination in
favour of the respondent. The
appellant, claiming to have been
aggrieved by and dissatisfied
with the judgment of the trial
court lodged an appeal there
from to the Court of Appeal. In
its judgment, the Court of
Appeal held that the appeal was
without merit and consequently
dismissed same
HELD
Since the
allegation on which the
respondent’s suspension was
based was not proved, the effect
is that the appellant acted
rashly and unfairly towards the
respondent and renders anything
founded on it without
justification and unlawful.
We think that the
reasonable inference to make
from the failure of the
appellant to provide the crucial
evidence that was needed to
sustain it suspension of the
respondent is that the
allegation never existed and
consequently the suspension was
without foundation. This being
so, we do not think it is
necessary to inquire into the
other issues raised in the
appeal such as the issue of
fairness and or the denial of
the respondent the right to be
heard before suspending him. In
our view, no useful purpose
would be served by a
consideration of those points as
there is no foundation in the
allegation.
For the above
reasons, we dismiss the appeal
herein and proceed to affirm the
decision of the Court of Appeal.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act
323
Evidence Act,
1975 NRCD 323
CASES
REFERRED TO IN JUDGMENT
Brown v Rolls
Royce Limited [1960] 1 ALL ER
577.
Tormekpey v
Ahiable [1975] 2 GLR 432
Bonsu v The
Republic [1999-2000] 1 GLR 199.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
YEBOAH, JSC:-
COUNSEL
PEASAH-BOADU
FOR THE
DEFENDANT/APPELLANT/APPELLANT.
ROCKSON
NELSON DEFEAMEKPOR FOR THE
PLAINTIFF/ RESPONDENT/
RESPONDENT.
_____________________________________________________________________
J U D G M E N
T
_____________________________________________________________________
YEBOAH, JSC:-
This an
appeal from the judgment of the
Court of Appeal dated 31 July
2008, which affirmed the
previous decision of the trial
High Court, Accra.
The
respondent herein, who commenced
the action as plaintiff at the
High Court, Accra was at the
time material to the action The
Retail Network Development
Manager of the appellant’s
company. He had been in this
official position for sixteen
years and was a Senior officer.
In November of 2005, the Acting
Manager Director of the
appellant’s company, informed
him that some employees of the
company had been arrested and
that the respondent should go to
the Police Station at Legon to
give a statement to the Police.
It turned out that two mechanics
who were employees of the
company at East Legon filling
Station had been arrested. The
respondent gave a statement to
the Police and reported later to
the Police Station on subsequent
days.
On the 1st
of November 2005, the respondent
was at work when the Acting
Managing Director of the
appellant company handed a
letter to him which sought to
suspend him as an Officer of the
company. In the course of the
trial, this letter was tendered
in evidence as Exhibit ‘B’.
The
reason canvassed in Exhibit ‘B’
for the respondent’s suspension
was that he had been implicated
in the ongoing police
investigations. The respondent
contended that the Police did
not make any adverse findings
against him and did not charge
him with any offence. It was
further contended by the
respondent at no point in time
did the appellant company invite
him to confront him with any
allegations of impropriety
before he was suspended. The
respondent’s Solicitor wrote to
the appellant company to
reconsider the decision to
suspend the respondent as
according to the Solicitor, the
decision sinned against the
basic rules of natural justice.
The appellant justified the
decision to suspend the
respondent.
Following the
response from the appellant
company, the respondent caused
the action herein to be
commenced against the appellant
seeking among other reliefs a
declaration that his suspension
from the employment was null and
void and of no effect.
The matter
proceeded to a full scale trial
at the end of which the learned
trial Judge of the High Court,
Accra made a determination in
favour of the respondent. The
appellant, claiming to have been
aggrieved by and dissatisfied
with the judgment of the trial
court lodged an appeal there
from to the Court of Appeal. In
its judgment, the Court of
Appeal held that the appeal was
without merit and consequently
dismissed same. The instant
proceedings are as a result of
the exercise by the appellant of
its statutory right to appeal to
this court from the decision of
the Court of Appeal. In its
appeal, the appellant quite
naturally seeks a reversal of
the decision of the Court of
Appeal in its favour and in
particular, an order dismissing
the claims of the appellant as
formulated in the writ of
summons herein.
Before us,
the appellant has challenged the
decision that is on appeal on
several grounds. In our view,
since the action arises from a
contract
of employment, the
fundamental issue to be decided
in the matter herein is
whether
the letter of suspension earlier
on referred to in the course of
this judgment was justified
under the contract between the
parties herein? This
requires us to examine the
reasons contained in the said
letter of 1 November 2005. Since
the appellant was the author of
the said letter, it was
incumbent upon it to prove that
the allegation on which the
suspension was based was true.
Unfortunately, at the trial
before the High Court, the
appellant relied only on bare
allegations to sustain a charge
which was in its nature
criminal. The appellant neither
called the police who were
alleged to be investigating the
complaint, nor the persons who
had according to them, made
statements that implicated the
respondent. The proceedings held
in the course of the trial on 26
January 2007 that appears at
page 136 of the record of appeal
has the following entry that we
consider decisive against the
appellant on the burden of proof
that it assumed having regard to
its defence to the action
herein.
“BOADU: We have subpoenaed
the IGP and served Hearing
Notice on them but they
have not come to help us. We
cannot ask that they be arrested
so we are closing our
case.
BY COURT: Defendant having
announced the closure of their
case counsel should
file addresses on or before 8th
February 2007 and plaintiffs
counsel his address on or before
19th February 2007.
Adjourned to 22nd
February for mention.”
We think that
by its conduct, the appellant
may be said to have admitted the
respondent’s claim that the
allegations made against him
were untrue. In the peculiar
context of this case, there was,
in or thinking, an obligation on
the part of the appellant to
provide credible evidence to the
trial court that would render
the allegation on which its
suspension of the appellant was
based more probable than the
version of a denial which was
the pivot of the appellant’s
case. By the operation of the
relevant rules of the
Evidence
Act the burden of leading
evidence and in particular
sections 11 (4) and 14 the
appellant left the trial court
with no option than coming to
the conclusion that the
allegation made against the
appellant that had informed his
suspension was untrue. We refer
to the said sections as follows:
“11 (4) In other
circumstances the burden of
producing evidence requires a
party to produce
sufficient evidence so that on
all the evidence a reasonable
mind could conclude
that the existence of the fact
was more probable than its
non-existence.
14 Except as provided by law,
unless and until it is shifted a
party has the burden of
persuasion as to each fact the
existence or
non-existence of which is
essential to the claim or
defence he is asserting.”
See
Brown v
Rolls Royce Limited
[1960] 1 ALL ER 577.
The above
conduct of the appellant can
only be construed to mean that
it did not have the evidence to
support the allegation. It being
so, we are surprised that the
appellant invites us to come to
a different conclusion on the
matter than that which was
reached on the admitted evidence
by the Court of Appeal and
indeed the trial Court. It is
interesting to note that in its
bid to prove the allegation
against the respondent, the
appellant introduced in Evidence
Exhibit 1, a report by the Legon
Police that is headed:
“Re-Malpractices at the A & C
Shopping Mall Total Filling
Station at East Legon”.
The said
document that was admitted in
evidence, despite objections
from counsel for the appellant,
in our view not only offends
against the hearsay rule
contained in section 118 of the
Evidence
Act, 1975 NRCD 323 but was
prejudicial to the case of the
appellant within the intendment
of section 52 of the same
legislation and ought not to
have been received in evidence
at all. Consequently, we proceed
to expunge from the evidence
although we observe that neither
the trial court nor the Court of
Appeal acted upon it in reaching
their verdict in the matter
herein.
See Tormekpey v Ahiable
[1975] 2 GLR 432.
Delivering the opinion of the
Court, Anin JA quoting with
approval from Phipson on
Evidence (10th
Edition) at page 855, paragraph
2053 said at page 434 thus:
“If inadmissible evidence has
been received (whether with or
without objection), it
is the duty of the Judge to
reject it when giving judgment,
and if he has not done so, it
will be rejected on appeal, as
it is the duty of courts to
arrive at their
decision upon legal evidence
only.”
See also the
case of
Bonsu v The Republic
[1999-2000] 1 GLR 199.
Since the
allegation on which the
respondent’s suspension was
based was not proved, the effect
is that the appellant acted
rashly and unfairly towards the
respondent and renders anything
founded on it without
justification and unlawful.
We think that
the reasonable inference to make
from the failure of the
appellant to provide the crucial
evidence that was needed to
sustain it suspension of the
respondent is that the
allegation never existed and
consequently the suspension was
without foundation. This being
so, we do not think it is
necessary to inquire into the
other issues raised in the
appeal such as the issue of
fairness and or the denial of
the respondent the right to be
heard before suspending him. In
our view, no useful purpose
would be served by a
consideration of those points as
there is no foundation in the
allegation.
For the above
reasons, we dismiss the appeal
herein and proceed to affirm the
decision of the Court of Appeal.
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
G. T. WOOD (MRS)
CHIEF JUSTICE
S.A. BROBBEY
JUSTICE OF
THE SUPREME COURT
J. V. M.
DOTSE
JUSTICE OF
THE SUPREME COURT
N. S.
GBADEGBE
JUSTICE
OF THE SUPREME COURT
COUNSEL:
PEASAH-BOADU
FOR THE
DEFENDANT/APPELLANT/APPELLANT.
ROCKSON
NELSON DEFEAMEKPOR FOR THE
PLAINTIFF/RESPONDENT/
RESPONDENT. |
