MICHAEL TETTEH ACHIM V LINCOLN COMMUNITY SCHOOL

JUDGMENT

 

 

1.            INTRODUCTION

In this action bordering on unfair termination against the Defendant, the Plaintiff claims the following     reliefs:

(a)          A declaration that the Defendant Company

knowingly and maliciously terminated the                                                                                          Plaintiff from its employ on the basis of false       accusations and                                                                 unsubstantiated allegations.

(b)          The payment of compensation for the unfair                       termination of the Plaintiff.

(c)          Interest on the sum awarded as compensation from                       October 2017 till date of final payment.

(d)         The payment of the sum of One Hundred and Sixty-                      Two Thousand, Three Hundred and Sixty-Three United           States

Dollars and Seventy-Four Cents                          (US$ 162,363.74) as damages for damage to the          Plaintiff’s                                   professional reputation.

(e)          Costs.

(f)           Any other relief(s) the Court may deem fit.

The Plaintiff is an accountant and former employee                                          of the Defendant school, Lincoln Community School,                                                           where he served as Director of Finance and Business from 14 July 2014 to 6 October 2017. Over the course      of this period, a frosty

relationship developed      between the Plaintiff and the Board of Directors                                           of the Defendant school. This emerged in the                       aftermath of a tax assessment that incurred a cost         of 8 million US dollars (and later reduced to 3.8                                                          million US dollars) for the school, based on an               audit from the 2009/2010 academic year to the                       2014/2015 academic year, after the Defendant’s Board recommended an application for a tax                              exemption letter from the Ghana Revenue Authority, on the advice of its auditor, Ernst & Young. The                Plaintiff         claims                        to               have jointly opposed this request to the Ghana Revenue Authority, alongside                  the then Head of School.

Dissatisfied with the tax assessment, the Board requested explanations from the Plaintiff in his capacity as Director of Finance, who also declined to offer any explanations on grounds that the assessment covered a period when he was not in the employ of the school, and also due to the Board’s  refusal to permit him to put his response in writing and record the proceedings. This, the Board

found uncooperative.

The Board then recommended the dismissal of the                                                                Plaintiff                                                                       to                                                                                the        new Head of School, Sheena Nabolz, who   rather  opted   for   a                                                                    mutual                                                                      termination arrangement with the Plaintiff. In the negotiation                                                                      process,                                                                       the                                                                      Plaintiff

rejected an initial offer       of 6-weeks salary and additional entitlements under       his contract, amounting to $16,341.00, and rather                       demanded 2 years salary and benefits package.       Following this, the Defendant terminated his                                         contract on grounds of ‘blackmail amounting to    gross   misconduct’,                        claiming        that     the                 Plaintiff     had

manifested behaviour that made it impossible for                                                     him to cooperate with the board, and had threatened                                       to violate the confidentiality agreement between

them.

2.            CASE OF THE PLAINTIFF

The Plaintiff’s case largely mirrors the above                        sequence of events, with claims of abuse and intimidation against the Defendant. Plaintiff                            avers                                                                                 that                                         the Defendant’s Board accused him of          colluding                       with                           others to                       defraud                     the Defendant,                       hence the eventual sum imposed on the Defendant as tax                                                                                    liability. Plaintiff’s case to this effect is                       that he was not an employee of the institution for the greater part of the period in question within                                                which                                                the                          tax         audit

covered.

Moreover, Plaintiff asserts that his request to                                                           have                                                           the                                                           proceedings recorded (specifically those           where he was asked for responses by the

Board on       the tax liability) were not unreasonable, as the Defendant                                                   institution had in the past employed such               means during their Board meetings.      He                                                      further avers that the Defendant did not offer him an                       appropriate              opportunity                         to

respond to the claims   of blackmail levelled against him by  Sheena

Nabolz, and insists that he found the first                                                                                         offer unworthy of his work and contribution to the Institution, hence the counter offer he made to the Defendant through Sheena Nabolz.

Furthermore, the     Plaintiff argues that the entire                                   process

contravenes the core tenets of natural     justice, as                                           Sheena                      Nabolz      (the Head of School) was           the person against whom the alleged abusive words were used, she was the one who instituted his termination,                                                             then               made

determinations on his   response and eventually effected the termination.

3.            CASE OF THE DEFENDANT

 

 

The Defendant’s case is that the Plaintiff had                                               assumed an ungovernable and uncooperative position          with the Board, which had greatly compromised their working relationship with him. According to the    Defendant,                                             the Plaintiff’s use of words such as                 ‘evil’ and ‘racist’ against the Defendant’s Head of School, Sheena Nabolz, including his defensive      posturing throughout meetings with the Board, evinced   an                                               unwillingness to                                               cooperate with the

Defendant.

Additionally, it is the Defendant’s position                       that the Plaintiff ‘issued threats which                       bordered on blackmail’ and ‘threatened to put confidential information about the school in the                 public domain’. To the Defendant, this jeopardized their working relationship with the Plaintiff and amounted                             to ‘gross misconduct’, for which reason                 his termination was justified.

4.            ISSUES FOR TRIAL

Based on the pleadings of both Plaintiff and Defendant, the following issues were laid down                                    for trial:

(1)          Whether or not Plaintiff’s comments to the Head of School on the

Defendant’s proposed       termination package amounted to blackmail?

(2)          Whether or not Plaintiff’s termination was    initiated by the Defendant?

(3)          Whether or not the Plaintiff’s counter-offer                                                                                  in response to the

Defendant’s offered           package amounted to extortion?

(4)          Whether or not the reasons for termination                                                                             cited by the Defendant

in the Plaintiff’s      termination letter were justified?

(5)          Whether or not the Plaintiff is entitled to                                                                                 his claims?

5.            BURDEN OF PROOF

 

 

On the burden of proof in civil cases, the Supreme Court in POKU v. POKU [2007 - 2008] 2 SCGLR 996 at 1022 per Georgina Wood CJ stated the statutory duty  on a party in a civil suit to discharge the burden  of proof when it held as follows:

“It raises the legal question of who bears the burden of persuasion in such civil matters, …. Who has the onus of proof and what is the degree or standard of proof? Generally speaking this depends largely on…. the facts averred and therefore the facts in issue… Generally, the burden of proof is therefore on the party asserting the facts with the evidential burden shifting as the justice of the case demands. The standard or degree of proof must also necessarily be proof on the preponderance of the probabilities within the meaning of Section 12(2) of the Evidence Act, 1975 (NRCD 323).”

 

 

Sections 10, 11, 12, and 14 of the EVIDENCE ACT 1975 (NRCD 323), set out the standard of proof in any civil action or matter. Sections 10 (1) and (2) of the EVIDENCE ACT, 1975 defines the burden of persuasion thus:

(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

(2)   The burden of persuasion may require a party      to raise a reasonable doubt concerning the      existence or non-existence of a fact or that      he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.

See: NANA HEITEY III v. NEENYI GHARTEY VII (SUIT NO. E4/001/2021)

 

 

Also, Section 11(1) and (4) of NRCD 323 deals with the burden of producing evidence and defines same thus:

(1)  For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

(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.

Furthermore, the standard is one that requires proof by a preponderance of probabilities, as is seen in SECTION 12 of the EVIDENCE ACT, 1975 (NRCD 323):

(1)   Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

(2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.

SEE: SARKODIE v FKA COMPANY LTD [2009] SCGLR 65; ZABRAMA v. SEGBEDZI [1991] 2 GLR 221 - 247 and MAJOLAGBE v. LARBI AND ORS [1959]

2 GLR 190 – 195.

 

 

Accordingly, Kpegah J.A. (as he then was) in the case of ZABRAMA v. SEGBEDZI

stated as follows:

“….a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden.”

It must be noted however, that where in a civil case, matters of a criminal nature are introduced, an extra layer of the burden of proof is introduced, which is proof beyond reasonable doubt. See the case of FENUKU & ANOR. v JOHN TEYE & ANOR. [2001-2002] SCGLR 985.

Section 11(2) of the Evidence Act, 1975 (NRCD 323) states that

“In a criminal action, the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond reasonable doubt.”

 

6.            ANALYSIS OF ISSUES

An examination of the issues laid down for trial                                                   reveals                                  a closeness between Issues 1 and 3, for           which reason I shall proceed to consolidate both

issues and address them together.

-      Whether or not Plaintiff’s comments to the Head of School on the

Defendant’s proposed termination package amounted to blackmail?

 

 

-      Whether or not the Plaintiff’s counter-offer in response to the

Defendant’s offered package amounted to extortion?

 

 

 

Within Ghana’s legal framework, there is no                                                                                          express provision on blackmail in our primary criminal legislation. The closest our legislation comes to is the provision on extortion. Extortion is criminalized in Section 151 of Criminal

Offences Act, 1960, and it provides as follows:

(1)          A person who extorts property from any           person by means of threats commits a second-                                                           degree felony.

 

(2)          When used with reference to extortion,           “threat’’ does not include a threat of           criminal assault or harm to the person

threatened.

 

 

Threat is defined under Section 17(1) as:

●    a threat of criminal force or harm, or

 

●    a threat of criminal damage to property, or

●    a threat of libel or of slander, or

●    a threat that a person shall be prosecuted on a charge of having committed an offence

●    A threat that a person shall be detained.

 

 

The case of FUSEINI v. REPUBLIC (SUIT NO.: CR/0394/2022) illustrates the position of the

law on what constitutes extortion, with reliance on the discourse of Sir Dennis D. Adjei in Contemporary Criminal Law in Ghana (p. 329) and the case of ILLIASU v. THE REPUBLIC [1968] GLR 742. The High Court per my sister Comfort K. Tasiame J. at p.15 of the judgment stated as follows:

“In the case of extortion, the prosecution is required to prove that the threat used or the words used were such that it would naturally and reasonably operate on the mind of a reasonable man and not a mere threat or words which could not operate on the mind of a reasonable person to part with his/her property. The test is whether the threat or the words used are capable of having an effect on the victim to the extent that it would deprive the victim of his free volition and compel him to act in a way that he would not otherwise have done.”

See also: R. VS. BOYLE AND MERCHANT [1914] 3 K.B. [P.747] 339, C.C.

 

Within the parameters of the above on what amounts to threat, the closest leg on which the defendant’s claims can be mounted is that of threat of libel or slander, as this case involves allegations of the plaintiff threatening to disclose matters pertaining to the defendant, within the public domain. On 4th September 2017 (Exhibit U), Sheena Nabolz wrote to the plaintiff stating that he issued ‘threats which bordered on blackmail’. She further said to him, ‘in particular, you threatened to put confidential information about the school in the public domain. That your words would destroy the school community’. The Plaintiff writes back to Sheena Nabolz on 26 September 2017 (Exhibit V) clarifying that his words have been misconstrued by the Defendant, and that he was making a counter offer, following an initial offer by the Defendant. He states that the new terms he demands are based on his contributions to the growth of the school’s financial standing during his time as Director of Finance and that he was choosing not to resign, in which case he would seek redress in court upon termination by the Defendant. It is based on this that the Defendant claims the Plaintiff

was attempting to use the negotiation process as one of extortion and blackmail.

I find this assertion by the Defendant to be unsupported by law or by the logic of the surrounding events. The evidence on record shows that the Plaintiff and the Defendant, represented here by Sheena Nabolz, were engaged in a mutual termination process, which the Defendant sought as a means to part ways with the Plaintiff. Having made an offer to the Plaintiff, the Plaintiff was at complete liberty to comment on this offer and propose his own terms for consideration by the Defendant. The Defendant was not bound to accept these terms of the Plaintiff. More so, it is pertinent to take into cognizance the status of both parties herein. While the Plaintiff is an individual employee of the Defendant, the Defendant is an organisation, with the resources to defend itself as it has demonstrated in this very suit. It is thus difficult to see how the Plaintiff’s words could be ‘capable of having an effect on the victim to the extent that it would deprive the victim of his free volition and compel him to act in a way that he would not otherwise have done’.

Defendant counsel relies on the case of EDMUND SIAW AKUGBEY vs. CARE INTERNATIONAL GHANA SUIT NO: INDL/22/09 as the basis for deeming the conduct of the Plaintiff as gross misconduct, based on the following elements of blackmail:

a.    That the accused made a threat to the victim

b.    The threat must be to reveal information that is damaging, embarrassing or harmful to the victim

c.    The accused must have made the threat with the intention of obtaining something of value from the victim or made with the intention of causing the victim to do something they would not otherwise do or refrain from doing something they would otherwise do.

The argument of the Defendant to this end is that the Plaintiff threatened to violate confidentiality arrangements which may jeopardize its status. The seeming basis for this is the Plaintiff’s intention to seek legal action against the Defendant, should they proceed with termination against him. No other factual basis is provided as reason for the claim of blackmail besides this. Again, this is not a position that can be supported by the law. The Plaintiff, like all employees, has a fundamental right to seek legal action against his employers for unfair termination, as much as his employers also have the right to terminate employment per the provisions of the LABOUR ACT 2003 (ACT 651). That such action would make public the matters relating to the Defendant cannot be deemed to be blackmail, as this would indirectly impugn the Plaintiff’s right to assert his constitutional rights to the courts. No agreement or arrangement of confidentiality can purport to oust the court’s jurisdiction. As such, it cannot be said that the Plaintiff’s words amounted to blackmail or extortion of the Defendant.

With respect to the issues on termination as listed in Issues 2 and 4, I will also consolidate these and address them accordingly.

-      Whether or not Plaintiff’s termination was initiated by the Defendant?

-      Whether or not the reasons for termination cited by the Defendant in

the Plaintiff’s termination letter were justified?

 

Section 63 (4) of the Labour Act provides:

(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.

In FAUSTINA ASANTEWAA & ORS. V THE REGISTERED TRUSTEES OF THE CATHOLIC CHURCH, KOFORIDUA DIOCESE 2016 92 GMJ 176 CA,

the Court of

Appeal said the following on Section 63(4) of the Labour Act:

Unfair termination is where a party assigns a reason for the termination (even though he is not bound to give) and if he gives and is proved to be false, damages may be awarded. The burden of proof would be on the person who offered the reason and has proved it to be false.

BENIN JSC IN THE REPUBLIC V. HIGH COURT, ACCRA (INDUSTRIAL AND LABOUR DIVISION COURT 2); EX PARTE PETER SANGBAH-DERY (CIVIL

MOTION NO. JS/53/2017) held thus;

“Upon a close look at Section 63 of the Act, it will be noticed that the grounds stated therein as grounds for unfair termination of employment are largely taken from the Human Rights provisions of the 1992 Constitution particularly articles 24, 26 and 29 and it appears the legislature was merely seeking to give effect to those provisions.”

I do not believe that it is in much dispute who initiated the termination process. In Exhibit U, Sheena Nabolz states to the Plaintiff, ‘I write in reference to the meeting held between you and I… on Monday September 4, 2017 to discuss matters related to the proposed mutual termination of your employment from the school’. This was stated by the plaintiff in his witness statement and in testimony under cross examination, and not disproved by the Defendant. The key question then, is whether the termination, per the letter dated 6th October 2017 (Exhibit W) amounts to unfair termination?

It must be noted that the Defendant makes references to a number of happenings in

their written address, particularly on the past misbehavior of the Plaintiff as reasons for his eventual removal. These must however be distinguished from the actual reasons provided in the letter of termination dated 6 October 2017. That letter stated, ‘your actions of blackmail amounted to gross misconduct’. Per the sequence of events and the first letter detailing such gross misconduct of the Plaintiff, the conduct in question was the supposed blackmail of the Defendant by the Plaintiff, and not any other extraneous matters from the past.

The determination of whether a termination is wrongful or unlawful is primarily an exercise of contractual rights. As a result, the court i s not concerned with the reasons or motives behind the termination. Thus, in AKUFO & ORS V VOLTA ALUMINIUM CO LTD, Afreh JA noted:

“The company is not bound to give reasons or show grounds to justify the termination. It may even be unfair as for instance where it is caused by a quarrel or clash of personalities. But if notice requirements or other contractual terms are complied with, it is lawful.”

In exhibit E, which is the Plaintiff’s Letter of Appointment, the final clause states:

Termination by the School

 

 

This appointment is subject to the continuing availability of school funds and your satisfactory performance and good conduct as determined by the Head of School. In the event of your termination by the Head of School, you shall receive 90 days notice or three months’ salary in lieu of such notice.

This seems to fall on all fours with the actions adopted by the Defendant per Exhibit

W. The letter states: ‘Accordingly, the amount equivalent to three months’ notice will be transferred to your bank account’. This is after acknowledgement of the contractual

provisions in the appointment letter, on the mode of termination.

However, the assessment of unfair termination requires a regard to the provisions of Section 63 of the Labour Act, which is the basis on which the Plaintiff’s case is grounded.

In EDEM VRS KWARLEYZ GROUP AND ANOTHER SUIT NO: GJ/0301/2022, the

court stated:

“My understanding of the law as espoused by the decisional authorities is that any claim for unfair termination must arise from the statute, in this instance the Labour Act 2003, Act 651 and must be based on any or a combination of the circumstances set out in section 63.”

 

 

In this instant case, the determination of fairness or otherwise calls into question the very process adopted by the Defendant in the termination. The Court finds that Sheena Nabolz, acts as the sole initiator, assessor and adjudicator in a matter involving claims of abusive language used by the Plaintiff against her very self. This fact is corroborated by the Defendant’s witness on 28 March 2024, who affirms in testimony that indeed Sheena Nabolz is the subject of all these actions. In fact, she affirms that Ms. Nabolz had already formed an intention to pursue this course of action, even before the initiation of the discussions for termination.

Q: Sheena Nabolz intended to terminate the contract of employment of the Plaintiff as contained in paragraph 34 and 37 of your witness statement, is that not so?

A: Yes my lady. On the basis that she had been kept fully abreast of how the Plaintiff had conducted himself at the school and hence she considered termination but recognized that the Plaintiff was a professional and hence gave him the opportunity to leave the school on mutual termination.

From the above excerpt of the cross examination, and the facts presented in evidence

which are not disproved by the Defendant, it appears Ms. Nabolz acted as a judge in her own cause, as the further claims of abusive words such as ‘evil’ and ‘racist’ as the Defendant claims were used by the plaintiff, were also against Ms. Nabolz. Furthermore, no clear independent assessment was made on the allegations of gross misconduct by the plaintiff, besides his response to the Defendant’s query. The sequence of events in this case contravene the requirements against administrative arbitrariness contained in Article 23 of the Constitution, and adopted in cases such as AWUNI v WAEC [2003- 2004] 1 SCGLR 471; ABOAGYE v GHANA COMMERCIAL BANK (2001-

2002)SCGLR 797, among others.

The conclusion I draw from these events does not support a claim of justified termination. It is thus my finding of fact that the reasons given by the defendant for the termination of the plaintiff were not justified.

7.             REPUTATIONAL DAMAGE

 

 

As to the Plaintiff’s entitlement to damages for damage to his reputation, I however do not find that the Plaintiff has successfully discharged this burden, because besides a vague reference to reputational damage and inability to find alternative employment, due to the vast network and influence of the Defendant, the Plaintiff really led no convincing evidence in respect of any damage to his reputation done by the defendant. Were this vague reference to reputational damage to be the standard or yardstick, any entity of influence in Ghana could suffer extremely onerous pecuniary consequences, should they be in the same shoes as the defendant today.

The onus was on the Plaintiff to specifically show such loss suffered, to substantiate the relief sought but he failed to do so. However, in view of my holding on the plaintiff’s claim for unfair termination, I believe an award of general damages amounting to GHC 300,000 in favour of the Plaintiff should be adequate compensation to the Plaintiff.

8.            CONCLUSION

 

 

In conclusion, the Court states that it is of the opinion, having carefully considered the evidence on the record, that the Plaintiff has been able to establish his case on the balance of probabilities and he is therefore entitled to judgment against the defendant in respect of some of his reliefs. The court awards judgment in his favour as follows;

(1)          The Court declares that the defendant Company knowingly and maliciously terminated the employment of the plaintiff on the basis of false accusations and unsubstantiated accusations.

(2)          The Court awards general damages of Three Hundred Thousand Ghana Cedis (GHC300,000.00) against the defendant in favour of the plaintiff for unfair termination.

(3)          The Court also awards final cost in cause of Thirty Thousand (GHC 30,000.00) against the defendant in favour of the plaintiff.

(4)          Any other reliefs not granted by the court are dismissed.

(SGD.)

H/L ANANDA JULIANA AIKINS (MRS.)

JUSTICE OF THE HIGH COURT