DR. AKWASI AMPOFO TWUMASI V GHANA REVENUE AUTHORITY

J U D G M E N T

NOVISI ARYENE JA:

Events culminating in the instant appeal are that, the Petitioner/Respondent (hereinafter referred to as the Respondent), was an employee of Ghana Revenue Authority, (hereinafter referred to as the Appellant). On 8th January 2008, Respondent applied for accumulated leave of 184 days, but was granted 100 days. On 24th of July 2008, Respondent applied for leave arrears of 84 days, ostensibly to complete prescribed medication. It is the case of Appellant that investigations revealed that the Medical Report attached to the application was not genuine and that all the while Respondent claimed to be receiving medical treatment, he was in full time employment at Regent University.

Appellant contends that Regent University also terminated Respondent’s appointment when they discovered that he was a full time employee of Appellant. And that Respondent’s employment was terminated on 12th January 2009 for following offences:

I.        That Respondent took up full-time employment as a Lecturer with the Regent University whilst in full-time employment of Appellant.

II.        That he submitted hospital prescription forms from unknown or unauthorized medics with the intention to deceive the Appellant to grant him outstanding 84 days leave to continue working at Regent University.

Aggrieved about the termination of his appointment, Respondent instituted an action against the Appellant at the National Labour Commission (NLC) under Section 17 of the National Labour Commission Regulation L.I 1822, claiming compensation for the wrongful termination of his employment. The matter was referred for alternative dispute resolution under the Alternative Dispute Resolution Act, Act 798.

The Sole Arbitrator delivered his Ruling on 18th May 2012. The award which was partly in favour of the Respondent was as follows:

I.        Calculation and payment of the Petitioner’s personal savings account with the Staff Savings Scheme together with any accrued interest payable to any other subscriber as at the date of payment.

II.        Calculation and payment of the contributions made by the Petitioner with the Management Welfare Scheme together with any accrued interest payable to any other contributor at the date of payment.

III.        Calculation and payment of outstanding 84 days leave with interest at the Bank of Ghana 2 years fixed rate note at the date of payment considering the fact that this amount should have been paid at the time of termination of the employment.

IV.        Calculation and payment of one month’s salary in lieu of notice together with interest

at the Bank of Ghana 2 years fixed rate note at day of payment.

V.        General and compensatory damages of GH¢5,000.00 inclusive of Petitioner’s

litigation and other allied expenses.

VI.        Payment of any outstanding payable medical expenses incurred by the petitioner during the period of his re-employment.

According to Appellant, a cheque representing the Arbitral Award was prepared for payment to Respondent but he never turned up to collect the cheque.

On 18th of October 2018, seven years after the Sole Arbitrator’s Award, Respondent applied to the High Court for extension of time to enforce the Award. Granting the application for extension of time within which to enforce the Arbitral Award, the Court concluded in its Ruling dated 8th January 2020, at page 67 of the ROA thus;

“After a careful consideration of all the processes filed and with regards to the law, the court will grant the application but on conditions that the starting place will be the award of 2012 and both counsel of parties herein and the accounting department of the respondent will re-work the computation for the court to have sight of same. Further directives will be given with timelines. Application granted as prayed.”

The records show that although the parties met as directed by the Court, they were unable to agree on the amount due and payable, and the court (differently constituted) was duly informed. Subsequently, Respondent filed a motion for payment of the Arbitral Award in the sum of GH¢218,711.92, inclusive of interest. Appellant opposed the motion on grounds that the computations were erroneous and that Respondent has nothing to do with the fund which was established under the defunct Internal Revenue Service (IRS).

On hearing the parties, the court gave the following terse Ruling dated 23rd July 2021:

“I have listened to both counsel on this application and have read through the motion paper its supporting affidavit and attachments as well as that in opposition and its supplementary and would state that this matter has travelled a long way and as the saying goes, litigation must end at some point. Indeed this court differently constituted gave its ruling on the 8th of January 2020, and was quite clear to what was to be paid. In the circumstance, this court is minded and persuaded by the submissions so made by counsel for applicant and would grant same. The motion on notice for an order for the payment of the arbitral award and interest in the tune of GH¢218, 711.92 is hereby granted as prayed.”

It is this ruling which has triggered the instant appeal.

GROUNDS OF APPEAL

I.        The Ruling is against the affidavit evidence adduced before the court.

II.        The learned judge erred in ordering the payment of the Arbitral Award and interest to the tune of GH¢218,711.92 to the Petitioner/Respondent.

III.        The learned High Court Judge erred when he refused to consider the depositions and attachments contained in the affidavit in opposition.

IV.        The Ruling of the court is without basis and is in conflict with the earlier Ruling of the court dated 8th January 2021.

GROUND 1

THE RULING IS AGAINST THE WEIGHT OF EVIDENCE

In addressing the omnibus ground of appeal, we are mindful that the application which led to the Ruling under attack in the instant appeal, is not an interlocutory application. The Ruling of 8th January 2021, being a final decision which settled the rights between the parties, the principle distilled from Asamoah v Marfo [2011] 2 SCGLR 832, Zikpuitor Sino Africa Development Co Ltd v. Royal Bell Investments Limited & Kwame Blay, Civil Appeal No. J4/02/2023, 14th June 2023, SC (Unreported) do not apply to the omnibus ground of appeal in the instance of this appeal. Considering the disputed factual matters presented by the parties in their respective affidavits and exhibits attached thereto, we rule that the application called for findings of fact to be made by the Trial Court.

SUBMISSIONS BY COUNSEL FOR APPELLANT

Arguing the omnibus ground of appeal, counsel relied on the case of Oppong v Anerfi [2011] 1 SCGLR 552 holding 4 thereof, and also Tema Oil Refinery v African Automobile ltd [2011] 2 SCGLR 709 and submitted that where a Trial Court fails to properly apply relevant principles of law in evidence in assessing evidence before it, an Appellate court may properly apply the principle and depart from that finding of fact. And that having resisted the amount claimed by the Respondent, the Trial Court ought to have ascertained whether there was evidence on record in support of the amount claimed by Respondent. And that the trial court also failed to address the overwhelming evidence on record showing that in 2012, Respondent was paid the sum of GH¢44,615.69.

SUBMISSIONS IN RESPONSE

In response, counsel for Respondent argued grounds (a) and (b) together. He submitted that Appellant failed to prove that it was not responsible for payment of Management Welfare Fund of the erstwhile Internal Revenue Service and the outstanding medical bills, general and compensatory damages under the Arbitral Award. It was submitted further that the grounds under which a party to an Arbitral Award can initiate an action to set aside an Arbitral Award is provided for under section 58 of Act 798. And that Appellant never challenged the Arbitral Award, and is accordingly estopped from disputing same. Neither can Appellant hide behind an alleged miscomputation to challenge the Award.

ANALYSIS BY THE COURT

We are mindful of the principle of law that an Appellate Court must be slow in setting aside findings of the lower court. See Amoah v Lokko & Alfred Quartey, 32 GMJ page 27, SC [2011] where the Supreme Court outlined four instances where an Appellate Court may interfere with the findings of the lower court: Where the Trial Court has taken into account matters which were irrelevant in law; when the Trial Court had excluded matters which were critically necessary for consideration; when the trial court had come to a conclusion which no court properly instructing itself would have reached; and when the Trial Court’s findings were not proper inferences drawn from the facts. See also Nsiah vrs Atuahene [1992-93] 2 GBR 898 and Bonney v Bonney [1992-93] GBR 779.

We have carefully perused the Ruling of the Trial Court dated 8th January 2020, and observe that contrary to the Ruling under attack in this appeal, nowhere did the Trial Court accept the amount claimed by Respondent as representing the Arbitral Award. On the contrary, the court did not accept Respondent’s computation and accordingly directed the parties to re-work same in consultation with Appellant’s Accounting Department. In other words, the Respondent who was claiming the exactitude of the sum of GH¢218,711.92 as representing the outstanding amount of the arbitral award, failed to satisfy the court on a balance of probabilities that he was so entitled.

We have read the record of appeal and in our respectful opinion, the Trial Court was justified in not granting the claim. It would be observed that Respondent deposed in paragraph 11 of the supporting affidavit to the application for an order for payment of Arbitral Award and interest, at page 97 of the ROA, that the amount due and payable to him was GH¢263.327.61. Exhibit E was attached to the opposing affidavit to indicate that Appellant paid GH¢44,615.69, leaving a balance of GH¢218,711.92. However, a careful examination of exhibit E, (see page 126 of the ROA) shows a balance of GH¢218,711.92 as the total amount outstanding. The exhibit does not reflect payment of the sum of GH¢44,615.69.

We also note that although Respondent is claiming GH¢218,711.92 per exhibit E, the sum of GH¢422,361.00 is endorsed in the Entry of Judgment dated 12th May 2012, (attached to the application for extension of time to enforce the arbitral award filed on 18th July 2017 as exhibit C). See page 25 of the ROA. We cannot also gloss over the amount of GH¢420,000.00 described by Respondent in exhibit A, (attached to the same application at page 14 of the ROA), as a summary of his claims.

We observe that Respondent failed to explain the inconsistencies in the claims presented to the Court at various stages and also failed to explain to the court below how it arrived at the amount of GH¢218,711.92 claimed. Little wonder the trial court in its Ruling of 8th January 2020, directed the parties to re-work the amount due to the Respondent in consultation with Accounting Department of the Appellant.

It is clear from the Court Notes on record that after several adjournments, the Court (differently constituted) was informed on 4th March 2021, (see page 93 of the ROA), about the disagreement of the parties on the final amount payable to respondent.

In the circumstances, it is our considered opinion that there are no legally justifiable reasons for the Court (differently constituted) in its Ruling of 23rd July 2021, to have granted the application as prayed; more so since the Ruling of 8th January 2020, which it sought to rely on, never accepted the amount claimed. On that score, we hold that the Ruling of 23rd July 2021, (the subject of the instant appeal), is contrary to the terms of the Ruling of 8th January 2020, which the learned judge purported to adopt.

We also rule on authority of Amoah v Lokko & Alfred Quartey (supra) that having excluded from its consideration, critical matters such as the computation of the amount payable, for the final and complete determination of the matters before the court, the finding and conclusion of the Court are not sustainable and are hereby set aside as not supported by the record.

It has been strenuously argued in this court, (and also in the court below), that Appellant cannot be held liable for payment of the Arbitral Award on Medical Bills, general and Compensatory Damages and Management Welfare Fund, because Appellant is not responsible for actions of the erstwhile Internal Revenue Service.

These submissions are untenable on three grounds. In the first place, Appellant never challenged the Arbitral Award. It would be noted that Appellant deposed in paragraphs 13 and 14 of its affidavit in opposition to the motion for an order for payment of Arbitral Award, that all payments awarded by the Sole Arbitrator had been paid. Secondly, by virtue of sections 52 and 58 of the Alternative Dispute Resolution Act, 2010. (Act 798), Appellant is estopped from challenging the Arbitral Award under grounds argued in this appeal.

Section 52 provides thus;

“Subject to the right of a party to set aside an award under section 58 of this Act, an arbitration award is final and binding as between the parties and any person claiming through or under them.”

Indeed, not only is Appellant bound by the terms of the Arbitral Award, but section 58 of the Act also stipulates grounds under which an aggrieved party may initiate an appeal against the Award.

We reproduce below section 58(1) of Act 798 as follows:

(1)   An arbitral award may subject to this Act be set aside on an application by a party to the arbitration.

(2)   The application shall be made to the High Court and the award may be set aside by the court only where the applicant satisfies the court that:

a)    a party to the arbitration was under some disability or incapacity;

b)    the law applicable to the arbitration agreement is not valid;

c)    the applicant as not given notice of the appointment of the arbitrator or of the

proceedings or was unable to present the applicant’s case;

d)   the award deals with a dispute not within the scope of the arbitration agreement or outside the agreement except that the court shall not set aside any part of the award that falls within the agreement;

e)    there has been failure to conform to the agreed procedure by the parties;

f)     the arbitrator has an interest in the subject matter of arbitration which the arbitrator failed to disclose.

From all indications, Appellant failed to bring its claims within the ambit of the law, and cannot be heard to be challenging the Arbitral Award.

Finally, with respect to the submission that Appellant cannot be held liable for the actions of the erstwhile Internal Revenue Service, we uphold the submissions by learned counsel for Respondent grounded on Essilfie v Ghana Ports Authority [1980] GLR 469 and Ghana Ports and Harbours Authority v Issoufou [1993-94] 1 GLR 24, that the liability for the payment of the arbitral award by Respondent’s former employers, transferred to the Appellant by virtue of section 34(1) of the Interpretations Act 2009, Act 792.

Section 34 (1) of the Act provides:

“Where an enactment repeals or revokes an enactment, the repeal or revocation shall not, except as in this section otherwise provided,

a)    revive an enactment or a thing not in force or existing at the time which the repeal or revocation takes effect;

b)    affect the previous operation of the enactment that is repealed or revoked, or anything duly done or suffered under the enactment;

c)    affect a right, a privilege, an obligation or a liability acquired, accrued or incurred under the enactment that is repealed or revoked;

f) affect an investigation, a legal proceeding or a remedy in respect of a right, a privilege, an obligation, a liability, a penalty, a forfeiture or a punishment and the investigation, legal proceedings or remedy may be instituted, continued or enforced and the penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.”

Our conclusions are further fortified by the following Ruling in Ghana Ports and Harbours Authority v Issoufou (supra) where it was held thus;

“The liability for the loss of the rice was incurred by the erstwhile Ghana Ports and Harbours Authority and Ghana Cargo Handling Company ltd in 1980 which was sued in 1981, long before the passage of PNDCL 160 in 1986. Therefore by virtue of section 8(1) (b),(c) and (e) of CA 4 any liabilities which attach to the said companies would be transferred to the new Authority created by PNDCL 160 ie Ghana Ports and Harbours Authority in accordance with section 8 of CA1 4. The fact that PNDCL 160 subsections 6 and 7 made no mention of transfer of liabilities does not affect the operation of CA 4 to all legislations in Ghana including PNDCL

160. This is rather a clear indication that rights and liabilities are to be preserved and pending legal proceedings to be continued in accordance with section 8 of CA

4. If the legislature had intended to exclude the operation of section 8 of CA 4, to

PNDCL 160 this would have been specifically stated in PNDCL 160.”

The combined effect of section 34(1) of the Interpretations Act 2009, (Act 792), and sections 54 and 58 of Alternative Dispute Resolution Act 798, is that, Appellant is liable for payment of the Arbitral Award as per the decision of the Sole Arbitrator. However, as earlier discussed in this judgment, the thorny issue is the quantum of the award.

CONCLUSION

The appeal succeeds. Though Respondent failed to satisfy the lower court and this Court that he is entitled to the exactitude of the amount claimed, we are satisfied on the record that he is entitled to some payment as per the terms of the Arbitral Award.

The suit is remitted to the trial High Court for the purpose of computing the amount due and payable to Respondent. Costs of GH¢10,000.00 for Defendant/Appellant.

SGD

JUSTICE NOVISI ARYENE

(JUSTICE OF THE COURT OF APPEAL)

ADJEI-FRIMPONG JSC

I AGREE                                 

SGD

JUSTICE RICHARD ADJEI-FRIMPONG

(JUSTICE OF THE SUPREME COURT SITTING AS ADDITIONAL COURT OF APPEAL JUDGE)

MENSAH JA

I ALSO AGREE 

SGD                       

JUSTICE BRIGHT MENSAH

(JUSTICE OF THE COURT OF APPEAL)

COUNSEL

JAMES OWURA-MENSAH WITH TIMOTHY AIDOO FOR PLAINTIFF/RESPONDENT

JOYCE AMPAH FOR DEFENDANT/APPELLANT