DANIEL EVANS DZAM & NICHOLAS NYANTEKYI V PENTECOAST UNIVERSITY

J U D G M E N T

Per an amended writ of summons and statement of claim filed on the 23rd of October, 2023, since one party withdrew from the action, the Plaintiffs mounted this action against the Defendant for the following reliefs:

a) A declaration that the Defendant is indebted to the 1st and 2nd Plaintiffs for book allowance to the tune of US$2000 and $1000 or its Ghana cedi equivalent respectively for their respective periods in the Defendant’s employment

(a) (i) A Further declaration that the Defendant’s termination of the 1st and 2nd Plaintiffs employment effective Thursday, 11th May 2023 is wrongful and /or unfair.

(b) An order directed at the Defendant to pay each of the 1st and 2nd Plaintiffs an amount of USD2000 and Ghc1000 or its Ghana cedi equivalent as book allowance owed by the Defendant and due the 1st and 2nd Plaintiffs respectively for their respective years of service in the Defendant’s employment

(c)  An order directed at the Defendant to pay the 1st and 2nd Plaintiff’s six month’s salary in lieu of notice for the unlawful termination of the employment relationship less the one-month payment made

(d) General damages and/or compensation for wrongful and/or unfair termination of 1st and 2nd Plaintiff’s employment contract.

(e) Interest on (b-d) from their respective dates of accrual till the date of final payment

(f)  Costs inclusive of solicitor’s fees

Plaintiffs Case

The 2nd Plaintiff was a lecturer (employee) in the faculty of law of the Defendant University effective Wednesday December 1, 2021 by virtue of an appointment letter issued sometime in November 2021 by the Defendant to the Plaintiffs who accepted same. The 1st Plaintiff was also a lecturer in the faulty of Defendant University effective Thursday 1st October, e 2020 by virtue of an employment letter issued on Thursday September, 17, 2020 which 1st Plaintiff accepted.

Defendant is a Christian-based institution engaged in tertiary level academic and professional education. According to the Plaintiffs their letters of employment, employment contracts and conditions of service for senior members defined and govern the employment relationship between the Plaintiffs and the Defendant herein. That by the aforementioned contracts each Plaintiff is entitled to be paid by the Defendant a book allowance of one thousand United States of American dollars (US$1000) or it Ghana cedi equivalent per anum as lecturers.

The 2nd Plaintiff aver that he has performed his obligations under the employment contract for one year beginning 1st December 2021 and ending 30th November, 2022 for which he is entitled to receive the said book allowance for that year.

The 1st Plaintiff aver that he has performed his obligations under the employment contract for two year ending 30th September, 2021 and 30th September, 2022 for which he is entitled to receive his accrued book allowance of USD2000 or its Ghana Cedi equivalent.

However, the Defendant failed to effect the payment, despite several reminders by the Plaintiffs to Defendant. The Plaintiffs aver that they have gone through the procedure for resolving such matters internally as stipulated by the Defendant University’s conditions of service for senior members but to no avail due to the Defendants’ uncompromising position thereby compelling the Plaintiffs to institute the instant action. That whilst the suit was pending the Defendant unilaterally and without prior notice terminated the six years employment contract in the first instance of the Plaintiffs by letters dated Thursday May 11, 2023 and effective on the same date. That the Defendants arbitrary termination f their employment contract and subsequent payment of one month salary in lieu of notice is contrary to law and the express terms governing the employee-employer relationship and same amounted to unfair and wrongful termination of employment. That considering their respective periods in the Defendant’s employment as faculty members they are entitled to be given six months prior notice of termination of appointment or payment of six months’ salary in lieu of notice as contained in the conditions of service. That the conduct of the Defendant is in bad faith and in breach of the employment agreement between the parties

Particulars of bad faith:

•       Having worked and discharged the role of lecturers the Defendant cannot deny the Plaintiffs the accrued book allowance for the relevant periods of service in the defendant’s employment.
•       The Defendant has on several occasions intimated to the Plaintiffs that the book allowance is payable at the end of each year of employment in consonance with the terms of employment and the Defendant cannot resile from same.
•       The Defendant after entering into a contractual agreement with the Plaintiffs has unilaterally introduced extraneous variables into the employment contractual agreement between the parties and totally vary same in total disregard for the law and the Plaintiffs’ consent and concurrence.
•       The Defendant having benefited from the services of the Plaintiffs as lecturers for the relevant period is estopped from denying the Plaintiffs their accrued book allowances of USD2000 and USD1000 respectively for their respective periods in the Defendant’s employment.
•       The Plaintiffs believe and acted on the express contractual terms they entered into with the Defendant for its benefits, to the Plaintiffs detriment and as such equity ought not to allow Defendant’s unjust enrichment resulting therefrom and to the Plaintiff’s detriment.
•       The arbitrary and abrupt termination of the Plaintiffs contract of employment by the Defendant during the pendency of the instant suit is not only prejudicial but also a deliberate and calculated act by the Defendant to overreach the court.

Furthermore, the Defendant’s failure to pay the outstanding book allowance due the Plaintiff has resulted in great economic hardship and inconvenience to them. That the Defendant will not honour its obligation to the Plaintiffs unless ordered by this Honourable Court.

Case of the Defendant

The Defendant filed an amended statement of defence on the 15th of January, 2024. The Defendant unless what it expressly admitted denied every material allegation of fact contained in the statement of claim. It is the case of the Defendant that a 1st appointment letter dated 17th September, 2020 was issued to the 1st Plaintiff but same became void because the faculty of law which the 1st Plaintiff was to have lectured had not been established. That the name of 1st Plaintiff was however used in the accreditation documents for the law programme and was promised an appointment when the faculty got established. That the 1st Plaintiff accompanied the Defendant’s team attending a meeting with the Ghana Tertiary Education Commission on the Defendant’s accreditation documents for the establishment of the faculty of law but this the 1st Plaintiff gratuitously did. Upon completion of the establishment of the Defendant’s faculty of law the 1st Plaintiff was given the chance to formally apply for appointment as lecturer and upon application 1st Plaintiff was duly interviewed and appointed by letter dated 4th November 2021 as lecturer. Defendant’s position is that lectures are not entitled to book allowance before the end of their first years’ service when they are on probation and no lecturer in the Defendant’s employment has ever been paid before he/she has served the probation period. That even if Plaintiffs had completed a years’ service, they would not be automatically paid the book allowance as they would have to first purchase the books and produce the receipts before payment. According to the Defendant it became necessary to provide a clear policy on book and research allowance and so a committee was formed to work on it and before the Plaintiffs completed their first year of service the Defendant had put in place its policy on book and research allowance which the Plaintiffs sought to kick against and commenced the instant suit. That the book allowance is always paid in arrears and that at the time the Plaintiff commenced this suit no lecturer including those who had served for several years had been paid, as payment had to go through the Defendant’s internal payment process and procedures. That plaintiffs simultaneously also issued resignation letters and the Defendant will contend that the Plaintiffs left the Defendants’ employment not upon termination of the Appointment but upon resignation. That the Plaintiffs are not entitled to six months’ salary for alleged unlawful termination

The Plaintiffs by their reply filed, joined issues with the Defendant on its statement of defence. Plaintiffs contended that their individual employment letters and clause 19.9 of the Defendant’s conditions of service for senior members are categorically on the payment of the book allowance annually without any exception. Therefore, they are entitled to the said book allowance for each and every year of service inclusive of the first year with the Defendant and their demands are not unreasonable.

Issues

1.    Whether or not the Defendant is indebted to the 1st and 2nd Plaintiffs for book allowance of USD2000 and USD1000 or its Ghana cedis equivalent for the respective periods in the Defendant’s employment.

2.    Whether or not the Defendant’s termination of the Plaintiffs employment effective

Thursday, 11th May 2023 is wrongful and /or unfair Additional issues

I.        Whether or not the 2nd Plaintiff’s employment commenced with appointment letter dated September17, 2020

II.        Whether or not the Plaintiffs resigned from their employment

III.        Whether or not the Plaintiffs are entitled to book allowance without any preconditions

Witness statement filed on behalf of the Plaintiffs which became their evidence in chief was not different from their pleadings except that exhibits were attached as evidence.

PW1, Kujo Elias McDave, a former Dean of the Defendant University filed a witness statement and testified on behalf of the plaintiffs. His testimony by and large corroborated the testimony of 1st Plaintiff.

Black law’s dictionary translates the maxim, “ei incumbit probation, qui dicit, non qui negat, cum per rerum naturam factum negantis probation nulla sit” which when translated means “the proof lies upon him who affirms not upon him who denies since by the nature of things, he who denies a fact cannot produce proof”, the burden of proof lies on the Plaintiff herein.

It is trite law that a party in a civil case who alleges has the burden of proof and would fail if he fails to discharge this burden. In GIHOC V. HANNA ASSI [2005- 2006] SCGLR page 458 at 485, Sophia Akuffo JSC (as she then was) held as follows;

"10. (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 establishes the existence or non- existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt....

"11. (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, (i.e. civil matters) 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.

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

"14. Except as otherwise 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."

Since the enactment of the Evidence Decree, NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue (SEE ODAMETEY V. CLOCUH [1989- 90] 1 GLR, 14; ODONKOR V. AMARTEI [1992-93] GLR 59, TUAKWA V. BOSOM [2001-

2002] SCGLR 61). Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgment might be given in favour of a party on the preponderance of the probabilities ...rather than can an archaic principle which might not accord with reason or common sense'  (See

Holding 2, Odonkor v. Amartei).

In ABABIO v AKWASI 111 [1994-95] GHANA BAR REPORT, PART 11, 74 the court stated

that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. See also RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-04] SCGLR 420 which further elucidate the burden of proof as statutorily provided.

Exhibits

1.      Exhibit “A” a copy of OFFER OF EMPLOYMENT letter issued by the Defendant dated 17th September, 2020 to the 1st Plaintiff.

2.      Exhibit “B”, a copy of Acceptance Letter of the 1st Plaintiff dated 23rd September, 2020.

3.     Exhibit “C”, a copy of the 2nd Plaintiff’s appointment letter dated Friday,

November 04, 2021, by the Defendant.

4.     Exhibit “D”, a copy of the Defendant’s Conditions of Service for Senior Members.

5.     Exhibit “E”, copy of the Defendant’s initial accreditation document.

6.     Exhibit “F”, a copy of “Deficiencies” identified by the GTEC Team and/or during the meeting on 23rd September, 2020, sub-captioned “Matters Arising”.

7.     Exhibit “G”, a copy of the Defendant’s corrected final accreditation document with the 1st Plaintiff’s name listed at page 91 as a Teaching Staff.

8.     Exhibit “H Series (H and H1)”, copies of the 1st Plaintiff’s WhatsApp communications with Defendant’s Registrar Mr. Foster Kobina Amoani and the Associate Dean/Founding Head of Department Mr. Kujo Elias McDave.

9.     Exhibit “J”, a copy of the Defendant’s purported Appointment Letter of the 1st Plaintiff dated Friday November 04, 2021.

10.  Exhibit “K”, a copy of Defendant’s purported Employment Contract.

11.    Exhibits “L”, a copy of the Acting Dean’s letter dated 24th January, 2022, for the “Assignment of Additional Roles” to the 1st Plaintiff.

12.   Exhibit “M Series” (M and M1), copies of written correspondence from the Plaintiffs to the Defendant regarding the need to pay the accrued book allowance.

13.   Exhibit “N”, a copy of the latest email meeting arrangement by the Vice Chancellor with the 1st Plaintiff which was cancelled on Friday 17 February, 2023.

14.  Exhibit “P”, copies of the “TERMINATION OF CONTRACT” letters from the Defendant to the Plaintiffs.

15.  Exhibit “Q”, a copy of Mr. Dominic Enyan’s, Esq. “NOTICE OF WITHDRAWAL BY 2ND PLAINTIFF” filed on 12/5/2023, a day after our appointments were terminated by the Defendant.

16.  Exhibit “S Series” (S and S1), copies of the Defendant’s Law Faculty’s Time Tables for 2023-2024 academic year indicating Mr. Dominic Enyan’s, Esq. lectures.

17.   Exhibit “T Series” (T, T1 and T2), copies of Plaintiffs’ appraisal and recommendation for promotion.

18.  Exhibits “U Series” (U and U1), copies of the Plaintiffs’ Resignation Letters.

19.  Exhibits “V Series” (V, V1 and V2), copies of Defendant’s letters dated Monday, 29 May, 2023, to the Plaintiffs for payment in lieu of notice and accompanied cheque.

Defendant’s exhibits

a.    Exhibit ‘’2’’ is a copy of appointment letter of 2nd Plaintiff

b.    Exhibit ‘’2A’’ is a copy of employment contract of 2nd Plaintiff

c.    Exhibit ‘’3’’ is a note from staff conditions of service

d.   Exhibit ‘’4’’ is a copy of resignation letter from 2nd Plaintiff

e.    Exhibit ‘’4A’’ is a copy of resignation letter from 1st Plaintiff

In the cases of MAJOLAGBE v LARBI [1959] GLR190; ZABRAMA v SEGBEDZI [1991]2

GLR 221; BONSU v KUSI [2010] SCGLR 60 as well as sections10, 11(1) and (4), 12 and 14 of the Evidence Act 1975, (NRCD 323) on the standard of proof cast on a party alleging the existence of a fact before a finding could be made in her favour that the fact he alleges exists. The onus is thus on the Plaintiffs to prove their case

Issue 3

Whether or not the 2nd Plaintiff’s employment commenced with appointment

letter dated September 17, 2020.

 

Even though this issue refers to the 2nd Plaintiff, there is no evidence of an employment letter dated 17th September, 2020 in respect of the 2nd Plaintiff. The employment letter exhibited as ‘A’ and dated 17th September 2020 is in respect of the 1st Plaintiff which matter has already been resolved by this court in an earlier judgment and therefore raises an issue estoppel. Where a court of competent jurisdiction has adjudicated on a matter, the same matter cannot be relitigated subsequently by the same parties or their privies. This is classified as Estoppel per rem judicatam or res judicata.

In the case of In RE SEKYEDUMASE STOOL; NYAME V. KESE @ KONTO [1998-99]

SCGLR 476, the Supreme Court in explaining the various types of estoppel res judicata stated as follows:

The plea of res judicata really encompasses three types of estoppels: cause of action estoppel, issue estoppel in the strict sense, and issue estoppel in the wider sense. In summary, cause of action estoppel should properly be confined to cases where the cause of action and the parties (or their privies) are the same in both current and previous proceedings. In contrast, issue estoppel arises where such a defence is not available because the causes of action are not the same in both proceedings. Instead, it operates where issues, whether factual or legal, have either already been determined in previous proceedings between the parties (issue estoppel in the strict sense) or where issues should have been litigated in previous proceedings but, owing to “negligence, inadvertence, or even accident”, they were not brought before the court (issue estoppel in the wider sense) otherwise known as the principle in Henderson v. Henderson (1843) 3 Hare 100. See also Andani v. Abudulai [1981] GLR 866, CA. The rationale underlying this last estoppel is to encourage parties to bring forward their whole case so as to avoid a succession of related actions.

The issue of whether or not the 1st Plaintiff’s employment commenced with appointment letter dated September 17, 2020, which is to be determined as an issue in this case has already been determined by this Honourable Court in the case of DANIEL EVANS DZAM VRS PENTECOST UNIVERSITY (SUIT NO. E2/SHC/29/2023).

In the case of DANIEL EVANS DZAM VRS PENTECOST UNIVERSITY (SUIT NO.

E2/SHC/29/2023) delivered on 22nd July 2024 by this Honourable Court, the Plaintiff therein who is the 1st Plaintiff herein commenced an action against the Defendant therein and herein for the resolution of employment issues following termination of employment contract. The issues for determination in the said case included the issue of whether or not the Plaintiff was an employee of the Defendant from 1st October 2020 to end of November 2021. This period of employment relationship commenced with the issuance of the Appointment letter dated 17th September 2020, the same letter that has generated the current issue 3 under discussion herein.

In its judgment, this Honourable held, inter alia, as follows: The court finds as a fact that it is evident that the contract of 17th September 2020 contained all the elements of a valid contract. The Letter offering Plaintiff employment as a lecturer combined with his acceptance constituted an enforceable contract between the parties.

This Honourable Court further held that the employment contract dated 17th September 2020 was valid prima facie, by the acceptance of same by the Plaintiff. However, the act of lecturing which was to be performed for the amount stated was unperformed. For the period between 12th October 2020 to November 2021, the Plaintiff did not render any lecturing services during the one-year period in question. This raises the principle of Issue estoppel in the strict sense

The Court of Appeal in the case of MANKRALO OTIBO IV V. MANKRALO OTIBO IV (2021) JELR 109062 (CA) also explained issue estoppel as follows: Issue estoppel exists when

there is a judicial pronouncement of a proposition of law or fact between parties to an earlier litigation and when the same question arises in later litigation between the same parties. In the later litigation the established proposition is treated as conclusive between the same parties. R v. Hogan [1974] 2 All ER 142.

The conditions for invoking this estoppel is as follows:

1.    The same issue must have been decided in the earlier case;

2.    The judicial decision in the earlier case must have been final; and

3.    The parties in the current case must be the same parties in the earlier case or their privies.

The issue as determined by this Honourable Court in the case of DANIEL EVANS DZAM VRS PENTECOST UNIVERSITY (SUIT NO. E2/SHC/29/2023) is the same as the current issue. Also, the case was final and between the same parties. The Plaintiff in respect of whom the current issue has been set down, i.e. Daniel Evans Dzam, was the Plaintiff in the earlier matter before this Court and against the same defendant in both cases. i.e. Pentecost University.The previous decision by this Honourable Court is therefore conclusive and still holds and this court cannot by law re-litigate same.

Issues 1 and 5

Whether or not the Defendant is indebted to the 1st and 2nd Plaintiffs for book allowance of US$2,000 and US$1,000 respectively or its cedi equivalent for their respective periods in the Defendant’s employment? Whether or not the Plaintiffs were entitled to Book allowance before without any pre-conditions.

The employment relationship between the parties was governed by the provisions of the Employment letters (Exhibits ‘’C’’ and ‘’J’’), the Conditions of Service (Exhibit ‘’D’’) and the employment contracts (Exhibits ‘’2A’’ and K’’)

Clause 19.9 of the Conditions of Service exhibit ‘’D’’ also provides for Book allowance as follows: “Book allowance: An amount of one thousand US dollars (US$1,000) payable annually to Senior Members for the purchase of books”

As already discussed supra, the Appointment letter of the 1st Plaintiff dated 17th September 2020, exhibit ‘’A’’ has been held by this Honourable Court to be valid even though it was unperformed. This letter only provided for the Salary of the 1st Plaintiff under that contract and no other allowance. Since the 1st Plaintiff did not perform under that contract he cannot be entitle to book allowance, even if same is provided for under the Conditions of Service.

However, another appointment letter was issued by the Defendant for the 1st Plaintiff on 4th November 2021 exhibit ‘’J’’ which provided for book allowance. 1st Plaintiff was given an employment contract as well.

The Appointment letters for the Plaintiffs, exhibits ‘’D’’ and ‘J’’, both dated Friday November 4, 2021 provided for book allowance in Paragraph 7 as follows: “As a lecturer, you will receive a Book allowance of $1,000 per annum and are entitled to apply to the university Research Board for consideration for internal research grant upon admission of your research proposal.”

Further to this, a provision for book allowance is made in Paragraph 5.4 of the Employment Contracts between the Defendant and each of the Plaintiffs as follows: “After a minimum of one year of continuous service in the university, the Employee will be eligible to be paid a Book Allowance of USD1000 (Cedi equivalent) per annum following the submission of relevant receipts.”

The Employment contracts therefore make clear the terms and conditions for the receipt of Book allowance by an employee of the Defendant. The Contracts provide pre-conditions for the book allowance.The court finds that the effective date for the Plaintiffs’ Employment Contract was 1st December 2021 and the termination date was 11th May 2023, which makes the employment period of the Plaintiffs more than a year. Plaintiffs are therefore eligible to receive book allowance since they had worked for over a year in the Defendant University.

However, Paragraph 5.4 of the Employment Contracts as stated above provide that receipts evidencing the purchase of books have to be submitted before the book allowance is paid to the Employees. The Plaintiffs did not provide evidence to the effect that they had submitted some purchase receipts to the Defendant for consideration for book allowance as stated in the terms of the employment contracts.

The parties to an agreement has put two different meanings to it and both sound legitimate, however, it is the duty of the court to re- examine the document in the light of the evidence adduced and arrive at a fair decision The Plaintiffs had stated at paragraph 3 of their statement of claim that their letters of employment, employment contracts and conditions of service for senior members being exhibits ‘’C’’, ‘’D’’ and ‘’K’’ defined and govern the employment relationship between the parties in in this suit.

The court notes that Exhibits ‘’C’’, ‘’D’’ ‘J’’ and ‘’2’’, the conditions of service and the appointment letters seem to be in conflict with the contents of Exhibits 'K’’ and ‘’2A’’ the contracts of employment. Whilst the conditions of service as per Exhibit 'C' and the appointment letters which are exhibits ‘’J and ‘’2A’’ mention generally about the Plaintiffs entitlement to book allowance, the exhibits ‘’K’’ and ‘’2A’’ the contracts of employment provide for the submission of receipts before the payment for book allowance by the Defendant. Since there is a conflict, it is evident that the terms of the special contract of employment would prevail (See the case of JUSTICE AWUKU SAO V. GHANA SUPPLY COMPANY CIVIL APPEAL J4/15/2008 11TH MARCH, 2009)

Also, during cross examination of 1st Plaintiff on 22nd May, 2024 at page 2 of proceedings the following ensued:

Q.       I am putting it to you that you had not purchased any books and submitted receipts in respect thereof to be paid.

A. That is not correct we purchased the books.’

This court opines that since the contract of employment provides a condition for the payment of book allowance to the Plaintiffs which is the provision of receipts, the Plaintiffs should have brought evidence of purchase of the books via receipts. Having failed to do and so the decision of Majolagbe supra will apply.

Therefore, even though the Plaintiffs were eligible to receive book allowance because they had worked for over a year with the Defendant, Plaintiffs failed to fulfill the conditions spelt out in the contract of employment they agreed and executed. Plaintiffs did not discharge their burden of providing sufficient evidence to their assertions on this issue.

Issues 2 and 4

Whether or not the Defendant’s termination of the 1st and 2nd Plaintiffs’ employment effective Thursday, 11th May 2023 is wrongful and/or unfair.

Whether or not Plaintiffs resigned from their employment.

The position of the Plaintiffs is that Defendant’s arbitrary termination of Plaintiffs’ six (6) years employment contract in the first instance between the parties and subsequent payment of one month salary in lieu of notice is contrary to law and the express terms governing the employer-employee relationship and same amounted to unfair and wrongful termination of employment.

The Law governing employment relations in Ghana is the Labour Act, 2003 (Act 651).

Section 17 of this Act provides as follows:

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

(a) in the case of a 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 the notice.

From the above provision, the court finds that the contracts of the Plaintiffs being for a term of six (6) years fall under Section 17 (1) (a). However, the parties herein agreed on the terms of a specific contract for their relationship and such terms are not to the detriment of the employee as held in the case of EDMUND DIAMOND ADDO V. DONEWELL LIFE COMPANY LTD (2016) JELR 107545 (HC) held, inter alia, as follows: “Where the employment contract appears to be inconsistent with provisions of statutes for the time being regulating employment, to the detriment of the employee, the statutory provisions prevail” (emphasis mine).

From the contracts of employment between the Defendant and each of the Plaintiffs, Clause 11 provides for termination Notice as follows:

11.1 The Employee may terminate the contract on giving the University a written notice of one (1) month of their intention to do so. Upon receipt of the notice, the University may decide that the Employee leaves before the end of the notice period, in which case, the

Employee shall be entitled to remuneration for the unexpired period in lieu of working throughout the notice.

Faculty Members. The Employee may terminate the contract on giving the University a written notice of six (6) months to take effect from the end of the academic year, i.e. 31 July, after he has marked and returned all examination results and scripts.

Similar provision is contained in Clause 12 of the Conditions of Service of the Defendant in respect of the resignation of a senior member (Administration and Faculty) as follows:

Senior Member (Administration) may resign his/her appointment by giving the Vice

Chancellor a month’s notice of his/her intention in writing.

 

A Senior Member (Faculty) may resign his/her appointment by giving the Vice Chancellor not less than six months’ notice in writing to take effect at the end of the semester within which the end of the six months’ fall.

The employer may also give similar notices to respective Senior Members in case of separation other than dismissals.

In either case failure to give notices may result in having the unexpressed notice taken from benefits due to the staff.

In case of termination by the College, the College may either give the stipulated notice period or salary in lieu of notice.

The court finds that from the Employment Contracts and the Conditions of Service, the applicable notice period in respect of the Plaintiffs who were faculty members is Six (6) months.

Having established that, the next important factor to be to be considered is whether the Plaintiffs resigned or the Defendant terminated their employment, in order to ascertain the entitlements of the Plaintiffs if any.

To determine this the following pieces of evidence are crucial:

-      Exhibit P: A letter dated Thursday 11th May 2023 and addressed to the 2nd Plaintiff

from the Defendant titled “TERMINATION OF CONTRACT”

-      Exhibits U and U1 (Exhibits 4 and 4A): Letters, both dated 8th May 2023 addressed to the Defendant from the 1st and 2nd Plaintiffs respectively and titled “RESIGNATION”

-      Exhibits V and V1: Letters, both dated 29th May 2023 addressed to the 1st and 2nd Plaintiffs respectively from the Defendant and titled “PAYMENT OF SALARY IN LIEU OF NOTICE”

The Plaintiffs received letters dated Thursday 11th May 2023, terminating their employment contract with the Defendant. The said letter was not for dismissal, as there was no statement to the effect that the Plaintiff has been found guilty of a misconduct. Clause 12 of the Conditions of Service as stated above is therefore applicable. Being Faculty member, the notice for such termination must be six (6) months.

It is however, the case of the Defendant that the Plaintiffs resigned from the University and cannot therefore demand six (6) months’ salary in lieu of notice as required under the Conditions of Service. To support this Defendant tendered into evidence Exhibits 4 and 4A, the resignation letters of the Plaintiffs.

What the court finds from these Exhibits tendered is that on the 8th of May 2024, resignation letter was written to Defendant and received at their registry on 15th of May. Meanwhile it’s on record that Defendant had also written a letter termination the contract of Plaintiff exhibit P on the 11 of May 2024. Clearly the resignation letters were received by the Defendant after the date of the Termination of Contract letters from the Defendant to the Plaintiff. Therefore, in the absence of any evidence to determine the date of receipt of the Termination letters (Exhibit P), the court can only rely on the Exhibit P and conclude that Plaintiffs’ employment with the Defendant was terminated by the Defendant.

Exhibits V and V1 dated 29th May 2023 are also very instructive and worth analyzing. For the Defendant University that have contended that the Plaintiffs resigned the court finds that in Paragraph 1 of Exhibits ‘V’ and ‘V1’ submitted to the Plaintiff two clear weeks after the Defendant delivered its termination letter to the Plaintiffs, the Defendant referred to the Termination letters dated 11th May 2023 and stated as follows: “Reference is made to our letter terminating your contract of appointment with the University dated Thursday, May 11, 2023.”

In the opinion of the court, the Defendant acknowledged by its conduct that the employment of the Plaintiffs was terminated by the Defendant, following which it became necessary to pay salary in lieu of the notice given by the Defendant. As already established, a month’s notice or salary in lieu of notice is not applicable to Faculty members. In the case of Faculty members such as the Plaintiffs, the required notice is six

(6) months, absence of which salary ought to be paid. Since the Plaintiffs were not given notice, they ought to receive the six months’ salary in lieu of the required notice. Exhibit V2 evidences the payment of a month’s salary. The Defendant is therefore liable for the payment of the remaining Five (5) months’ salary to the Plaintiffs and so the court holds

Having determined that the Plaintiffs’ employment was terminated by the Defendant, the issue to be determined next is Whether or not the Defendant’s termination of the 1st and 2nd Plaintiffs’ employment effective Thursday, 11th May 2023 is wrongful and/or unfair.

In the case of CHARLES AFRAN & ORS V SG-SSB LIMITED CIVIL APPEAL NO. J4/71/2018 (JUDGMENT DELIVERED ON 21 MARCH 2019), the Supreme Court

distinguished between unfair termination and wrongful termination. While unfair termination is a creation of statute, wrongful termination is a common law concept.

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

Section 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 restriction imposed on the worker prohibiting the worker from performing the work for which he or she is employed.

 

Section 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 a trade union;

(b) that the worker seeks office as, or is acting 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 the case of a woman worker, due to the 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 recognised 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 his or her employment; or

(i) that the worker refused or indicated an intention to refuse to do any work normally done by a worker who at the time was taking part in 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 of 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 work place.

(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 the case of ISAAAC K. KOBI & 24 ORS V. GHANA MANGANESE CO. LTD (2006)

JELR 66651 (SC), the Supreme Court held that:

Part VIII of the Act provided for fair and unfair termination of employment explained in section 63 (1). Termination of employment may be fair or unfair even if it is recognised the employer has power to terminate the employment under section 8 of the Act. Under 63 (3), a termination may be unfair if the employer fails to prove that the reason for the termination is fair; or it was made in accordance with a fair procedure under the Act. An unfair termination may attract sanctions and the fact that entitlements had [10] been paid may not make an unfair termination fair or the reverse. A fair termination on the other hand is one made upon proven misconduct of the worker: see section 62(b) of the Act.

The Supreme Court further stated that: “What I consider to be trite learning on this issue is that a contract of service is not a contract of servitude. That being so even if the contract of employment is silent on the question whether it is terminable, the common law implies a right to terminate the same by either side upon reasonable notice to the other. See BAUMAN v. HULTDNY PRESS LTD (1952) 2 ALLER 1121. Subject to this the right to terminate a contract of service is dependent on the terms of the contract and must be exercised in accordance there with.”

The right of the Defendant to terminate the employment of the Plaintiffs is therefore dependent on the terms of their contract as contained in the Contract of employment and the Conditions of service.

Clause 12.3 of the Defendant’s Conditions of Service for Senior Members (Exhibit D) which is on ‘TERMINATION’ states as follows:

12.3.1 Where an employee commits an offence which does not amount to gross misconduct, such employee will be warmed in writing. If after two such written warnings the third offence is committed by the employee, his/her service shall be terminated without notice after the disciplinary board of enquiry’s report has proven the misconduct.

12.3.2 A warning shall cease to have effect after twelve (12) months from the date of issue. However, employees who habitually or wilfully commit the same offence will be treated in accordance with their records, even though the warning letter may have been ineffective after twelve (12) months from the date of issue.

12.3.3  In the event of an employee committing an offence which, in the opinion of Management, is grievious and which may or may not have been mentioned under “Summary dismissal”, Management shall have the right to interdict and investigate the case. If proved guilty, Management shall terminate the appointment of the offender, irrespective of whether he/she has received a previous warning(s).

From the evidence on record, it is clear that the Defendant did not follow procedure in the termination of the Plaintiffs’ employment. The Defendant did not issue any warning letter, neither did it assign any reason for the termination of the Plaintiffs’ employment. In the case of such summary dismissal, the Defendant failed to investigate any issue, neither did the defendant find the Plaintiff guilty of any grievous offence.

In KOBI V GHANA MANGANESE COMPANY LIMITED (supra) the court held that the termination of plaintiff’s employment was wrongful because in terminating the employment of the Plaintiff the Defendant did not follow fully the procedure provided in the terms of the contract.

The court concludes that the termination of the Plaintiffs’ employment by the Defendant was unfair because it is contrary to the Provisions of the Labour Act. Furthermore the termination is also wrongful because it was contrary to the terms of the Plaintiffs’ employment contract as discussed.

Since it was the Defendant who terminated the appointment of the Plaintiffs the Defendant’s arguments concerning the dispute mechanism processes provided for in the staff conditions of service is moot.

The Plaintiffs are therefore entitled to compensation/damages

On the issue of general damages, the law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded. DELMAS AGENCY GHANA LTD. v. FOOD DISTRIBUTORS INT. LTD. [2007-2008] 2 SCGLR 748

@ 759. In this instance the court will award the Plaintiffs s general damages of GHC10,000.00 each against the Defendant.

Plaintiffs are entitled to the following

•       A declaration that the Defendant’s termination of the 1st and 2nd Plaintiffs employment effective Thursday, 11th May 2023 is wrongful and /or unfair.
•       An order directed at the Defendant to pay the 1st and 2nd Plaintiff’s five(5) month’s salary each in lieu of notice for the unlawful termination of the employment relationship less the one month payment made
•       General damages and/or compensation for wrongful and/or unfair termination of 1st and 2nd Plaintiff’s employment contract. to the tune of GHC10,000.00 for 1st Plaintiff and ghc10,000.00 for 2nd Plaintiff
•       Interest on five months’ salary each from date of accrual until date of final payment.
•      Costs of GHC5000

(SGD)

JUSTICE JANE HARRIET AKWELEY QUAYE (MRS)

JUSTICE OF THE HIGH COURT

COUNSEL

 EVELYN ARHINSAH WHO HELD BRIEF FOR RANDY BRAFO FOR THE PLAINTIFF.