EMMANUEL FOSU BOATENG V. E.B ACCION SAVINGS AND LOANS COMPANY LTD

JUDGMENT

TETTEH-CHARWAY (MRS) J.

The plaintiff, Emmanuel Fosu Boateng, was until 16th February 2012, the Head of  Credit and Operations Department of the Defendant Company. Before his  promotion to the position of Head of Credit and Operations Department, the  plaintiff was the Deputy Branch Operations and Credit Manager. The Defendant,  on the other hand, is a limited liability Company registered under the laws of  Ghana and working in partnership with the International Monetary Fund (IMF). 



The plaintiff’s case is that sometime in December 2011, he was asked to proceed  on leave to allow for thorough investigations to be conducted into allegations  received against him. Thereafter, on 29th December 2011 he received a letter  from the Head of Human Resource and Administration suspending him from his  job for a period of one month without salary. On 9th February 2012, the plaintiff  was invited to appear before a committee that had been set up to inquire into  allegations made against him. These allegations included blackmail, fraud,  bribery, abuse of power and sexual harassment.  

According to the plaintiff, he was never shown a copy of the report of the  investigative committee and neither was he confronted by anyone who had been  at the receiving end of his alleged misdemeanors contrary to paragraph 3 of section 4.5 of the Defendant’s Human Resource Manual. He claimed that on 17th February 2012, he received a letter from the defendant terminating his  appointment. On 18th February 2012, he wrote formally to demand a copy of the  findings of the investigative committee but to date has not received any  response. 

The plaintiff maintained that the purported termination of his appointment by the  defendant was in contravention of the defendant’s Human Resource Manual that  tended to promote enhanced punishment for repetitive acts. He therefore contended it was improper for the defendant to have terminated his appointment  at first instance in the absence of proof of repetitive behaviour. Furthermore the  plaintiff complained that the termination of his appointment was without basis as  the defendant failed to prove any of the allegations made against him. 

In respect of the allegations made against him, the plaintiff claimed firstly that he  was accused of colluding with other employees to grant loan facilities to two  customers, Randies Enterprise and Kofi Attuahene Asante who had defaulted in  repayment. He claimed that he denied the allegations of collusion and explained  that he did not exercise control over the loan evaluation process as this was the  function of committees whose composition depended on the size of the loan  requested. 

In response to the Randies Enterprise loan issue, the plaintiff claimed that the  committee that handled this loan application was chaired by the then Credit  Manager, Philip Takyie. He denied having any upper hand in the decision to  grant the loan. He further stated that at his appearance before the Investigative  Committee a call was placed to the guarantor of the Randies Enterprise loan to  confirm whether or not the plaintiff had forced her to guarantee the said loan. He  claimed that the guarantor, to the hearing of the committee, denied the allegation  that plaintiff forced her to guarantee the loan and stated that she had agreed to  guarantee the loan after visiting the client’s business premises. With regard to the loan given to Kofi Attuahene Asante, the plaintiff again denied any  wrongdoing. He admitted that he chaired the committee that evaluated this loan  application but explained that the decision to approve the loan was a collective  one. 

In addition to the allegations of corrupting the loan process, the plaintiff claimed  that he was also accused of fraud, blackmail, extortion, bribery, abuse of power  and sexual harassment, all of which he denied. He maintained that at his  appearance before the investigative committee he was not asked any questions  pertaining to the allegations of fraud, blackmail, bribery, abuse of power and  sexual harassment and thus he was not given any opportunity to be heard  regarding those charges in breach of the audi alteram partem rule.  

The plaintiff further contended that paragraphs 9 and 10 of section 4.5 of the  Defendant’s Human Resource Policy clearly spelt out the kinds of punishment to  be meted out to officers proved to have engaged in any major misconduct. He  asserted that since defendant had not proved that he had committed any major  misconduct the termination of his appointment was unjust and wrongful in law.  He therefore prayed for the following reliefs; 

1. General damages for wrongful dismissal 

2. Payment of salary during period of suspension 

3. Payment of salary from date of wrongful termination of appointment

4. Interest on salary due plaintiff from time of suspension to date of final  decision of the court 

5. Order for reinstatement as Head of Credit and operations 

6. Retraction of publication made by defendant concerning plaintiff in 23/2/12  issue of Daily Graphic. 

The defendant, in its statement of defence, admitted that the plaintiff was indeed  suspended from its employment, by a letter dated 21st December 2012, to make way for investigations to be conducted into allegations received against him. The  defendant further contended that the plaintiff, in his capacity as the supervising  officer of the members of the loan evaluation committee, exercised undue  influence over the members of the committees with the aim of corrupting the  process for his personal gain. The defendant further maintained, in respect of the  Randies Enterprise Loan issue, that the plaintiff prevailed upon one Joyce Antwi  to guarantee the loan for Randies Enterprise even though the said Joyce Antwi  did not know the client. The defendant claimed that the plaintiff achieved his aim  by reassuring Joyce Antwi that he would use part of his salary to pay off the loan  in the event that Randies Enterprise defaulted. In respect of the loan given to Kofi  Attuahene Asante, the Defendant alleged that the plaintiff abused his position by  influencing the members of the committee to approve the loan against their better  judgment. 

The defendant further alleged that the plaintiff brought the company into  disrepute by borrowing money from a rival financial institution and defaulting in  payment; a situation that led the officers of that company to pursue the plaintiff to  his workplace for the recovery of the loan facility much to the extreme  embarrassment of the defendant. 

The defendant further insisted that the findings of the investigative committee  were made known to the plaintiff when he appeared before the said committee  and that he was afforded every opportunity to respond to the allegations made  against him. Again, the defendant maintained that the plaintiff’s conduct, given  the position he occupied as Head of Credit and Operations was so grave that it  warranted summary dismissal, the provisions in its Human Resource Policy  notwithstanding. And finally, the defendant counterclaimed for the balance due  on a staff loan facility granted to the plaintiff during his employment with the  defendant company.

In his reply to the statement of defence and counterclaim, the plaintiff maintained that he had not been given a copy of the investigative report and that his  dismissal was wrongful. He further stated that the defendant did not prove the  allegations of fraud and other crimes leveled against him. He further claimed that  his failure to repay the loan borrowed from defendant was attributable to his  wrongful dismissal since the repayments were deducted directly from his salary.  He therefore asserted that he was entitled to renegotiate the terms of repayment  of the loan with the defendant. 

In their reply to the defence to the counterclaim, the defendants maintained that  the plaintiff was not entitled to renegotiate the terms of repayment since the loans  became due and owing upon termination of his employment contract. 

After the close of pleadings the following issues were set down for trial;

a. Whether or not plaintiff’s employment was wrongfully terminated by the  defendant in all the circumstances of this case and same was in breach  of defendant’s Human Resource Policy 

b. Whether or not the serious criminal charges leveled against plaintiff were  proved beyond reasonable doubt by credible evidence as required by law c. Whether or not plaintiff was given a fair hearing to defend himself against  the said charges 

d. Whether or not plaintiff was entitled to be paid some salary during the  period of suspension 

e. Whether or not plaintiff was ever furnished with a copy of the  investigative report 

f. Whether or not plaintiff during his tenure as Head of Credit and  Operations of defendant Company acted in a manner compatible with his  position? 

g. Whether or not plaintiff was ever queried by defendant during his tenure  as Head of Credit and Operations of defendant company? 

h. Whether or not plaintiff exercised undue influence and pressure on his  subordinates and members of the Credit Committee of the defendant Company to pervert and corrupt the work of the committee for his  personal gain 

In the closing address filed by Counsel for the defendant, it was submitted that  the crucial issue for determination by the court was whether or not the plaintiff’s  dismissal was wrongful. I am inclined to agree with this assertion as this is the  main complaint that triggered the present action. Thus put, the burden falls on  the plaintiff to adduce credible evidence to prove his claim that the termination of  his appointment was wrongful, on a balance of probabilities. In the case of Ackah  v. Pergah Transport Ltd and Others (2010) SCGLR, 728 at 736, Adinyira JSC  succinctly explained the nature of the duty imposed on a party who bears the  burden of proof in a civil case in the following manner; 

“it is a basic principle of the law on evidence that a party who bears the  burden of proof is to produce the required evidence of the facts in issue  that has the quality of credibility short of which his claim may fail. The  method of producing evidence is varied and it includes the testimonies of  the party, material witnesses, admissible hearsay, documentary and things)  often described as real evidence), without which the party might not  succeed to establish the requisite degree of credibility concerning a fact in  the mind of the court or tribunal of fact such as a jury. It is trite law that  matters that are capable of proof must be proved by producing sufficient  evidence so that on all the evidence a reasonable mind could conclude that  the existence of the fact is more probable than its non-existence. This is a  requirement of law on evidence under sections 10(1) and (2) and 11(1) and  (4) of the Evidence Act, 1975 (NRCD 323)”  

The plaintiff testified but called no witnesses. In his evidence in chief, he tendered his letter of appointment to the position of Deputy Branch Operations  Manager and his promotion letter to the position of Head of Credit and  Operations respectively, see exhibits A and B. He also tendered in evidence the  suspension letter and letter terminating his employment contract, see exhibits C  and D respectively. The plaintiff maintained that the termination of his appointment was wrongful because no evidence was adduced in support of the  charges leveled against him. 

Firstly, he testified that at the disciplinary hearing, the allegation that he forced  the guarantor of the Randies Enterprise Loan to guarantee was disproved when  a phone call was placed to the guarantor who denied that he had exerted any  influence over her. He also claimed that the allegation that he benefited from the  Randies Enterprise loan was also not proved. 

Secondly, the plaintiff claimed that his role in the loan evaluation process for a  client called Kofi Attuahene Asante was questioned. He explained that although  he had chaired the committee that approved that loan, the decision to approve  the loan was a collective one. He further stated that committees whose  composition depended on the amount requested handled the loan evaluation  process.  

Thirdly, the plaintiff claimed that no witnesses were presented at his appearance  before the investigative committee to testify against him. He claimed that the only  person who appeared before the committee was an officer from Oak Financial  Services, a company from which he had borrowed money and her evidence had  nothing to do with the charges leveled against him. 

The plaintiff testified that he was surprised when he received the letter  terminating his appointment in view of the unsubstantiated allegations made  against him. He stated that he wrote to the defendant for the reasons behind the  termination of his appointment but received no response. Meanwhile the  defendant proceeded to publish a notice of disclaimer in the Daily Graphic  Newspaper. Aggrieved by this conduct, he caused his solicitor to file the present  suit.

Under cross examination the plaintiff admitted that he took a loan from Oak  Financial Services and defaulted in repaying same as evidenced by the demand  letters, exhibit 1 and exhibit 2, tendered through him by Counsel for the  defendant. He further stated that he only became aware that three of the four  cheques he issued in repayment of the said loan were returned on the day he  appeared before the investigative committee. Photocopies of the cheques issued  by the plaintiff were tendered in evidence through him as exhibit 3. Although the  plaintiff admitted that he owed Oak Financial Services, he denied that an officer  from Oak Financial Services came to his office to demand repayment of the loan  and stated further that he was not aware that the said officer had reported the  matter of his indebtedness to his employer. 

In respect of the Randies Enterprise Loan, the plaintiff, under cross-examination, denied that he was the beneficiary of the loan that was approved for Randies  Enterprise. He further denied prevailing upon Joyce Antwi, a former employee of  the defendant company to guarantee the said loan. He claimed that he sold a car  for GHS 25,000.00 and received payment in two installments, one of which was  the amount of GHS14,000 deposited in his account.  

He further denied prevailing upon one Samuel Nyarko to approve a loan for Kofi  Attuahene Asante in spite of the red flags raised by the loan officer. He  maintained that the decision to extend the facility to the client for a period of  fifteen instead of twelve months was a collective one. 

Furthermore, the plaintiff admitted taking a loan facility from the defendant that had not been retired. Copies of demand letters from the defendant were tendered  through the plaintiff in evidence as exhibits 4 and 5. 

The Defendant, on the other hand, called three witnesses after its representative,  the internal auditor had testified. In his evidence in chief, the defendant’s representative testified that he was charged with the investigation of complaints received against the plaintiff. He testified that in respect of the Randies Enterprise Loan issue, he interviewed staff members, as well as the guarantor  and reviewed the client loan file. His investigations revealed that the plaintiff  introduced the client to the branch. He further interviewed the guarantor who  happened to be a former employee of the defendant. According to him, the  guarantor claimed that the plaintiff had prevailed upon her to guarantee the loan. He tendered in evidence the report that he submitted to management after  conducting this investigation as exhibit 6. He further testified that in respect of the  Kofi Attuahene Asante loan, upon reviewing the client loan file and interviewing  the loan officer he found that the plaintiff had used his authority to influence the  approval of the loan for Kofi Attuahene Asante. He tendered in evidence, exhibit  7, the report he presented to management after conducting the investigations. 

He further testified that upon presentation of the report to management, a  disciplinary committee was constituted before which the plaintiff was invited to  appear. He stated that during the hearing, his findings contained in the report  were presented to the plaintiff. Furthermore, the guarantor of the Randies  Enterprise loan was also called on phone. He stated that she denied that the  plaintiff had prevailed upon her to guarantee the loan. He stated that when  questioned about whether he had taken loans from other companies the plaintiff  admitted that he had done so but denied that he was indebted to any company.  He stated that Patience Adjei, an officer of Oak Financial Services produced  documents to show that the plaintiff was indeed indebted to her company. 

He maintained that the plaintiff was given a hearing and tendered the report of  the disciplinary committee in evidence as exhibit 8. He further tendered a query  issued to the plaintiff in evidence as exhibit 9 and a copy of sections 1-4 of the  defendant’s Human Resource Policy in evidence as exhibit 10. He maintained  that the plaintiff’s conduct not only bordered on integrity but also brought the  defendant into disrepute. He stated that the plaintiff’s conduct amounted to gross  misconduct that warranted his summary dismissal. He further stated that the plaintiff was obliged to repay the loan that was given to him during his  employment with the defendant company. 

Under cross-examination, he maintained that although a copy of the audit report  was not served on the plaintiff he was given the opportunity to respond to the  findings during the disciplinary committee hearing. He further stated that the  plaintiff did nothing wrong by taking a loan from a financial institution but the  manner in which the officers of the company pursued the plaintiff to his office for  repayment brought the company into disrepute. 

He further explained that in the Randies Enterprise loan issue the loan amount  was paid directly to the guarantor who deposited it in the plaintiff’s bank account  at Ecobank. He further maintained that the plaintiff corrupted the loan process by  using a different person’s name to obtain a loan for himself. He further stated that  the plaintiff knew that the business locations of the loan applicants had been  earmarked for demolition at the time the loans were approved.  

The defendant’s second witness was Joyce Antwi, the guarantor of the Randies  Enterprise Loan. She testified that the plaintiff was a childhood acquaintance whom she had met again when she was employed at the defendant company.  She claimed that in 2010, the plaintiff approached her at her shop and asked her  to guarantee a loan for his cousin operating under the name Randies Enterprise.  She claimed that although she did not know the client, she agreed to guarantee  the loan because the plaintiff was a childhood friend. She claimed that in order to  have some control over the loan she told the plaintiff to use his position to make  the teller pay the money to her after Randies Enterprise had signed for it. She  claimed that the loan amount was paid to her and she in turn paid it into the  plaintiff’s bank account at Ecobank. She denied that the deposit she paid into  plaintiff’s bank account was in respect of payment for a car she bought from him.  She claimed that two months after the loan had been disbursed, no repayment  had been made and this prompted her to call Randies Enterprise. She claimed that Randies Enterprise told her that he had never received any money. She thus  called the plaintiff who reassured her that he would take care of everything. 

Under cross-examination, Joyce Antwi admitted that she had lied when she told the disciplinary committee that the plaintiff did not influence her decision to guarantee the loan for Randies Enterprise. She claimed that before his  appearance at the disciplinary committee the plaintiff came to her house and  pleaded with her not to disclose his involvement in her decision to guarantee the  loan. He told her he was about to sell a car he had cleared from the harbour to  settle the loan. She claimed that she advised him to take a loan from his brother  who was CEO of SINAPI ABA, a financial institution, so that the case would  disappear. She claimed the plaintiff reassured her that he would repay the loan; as a result, she agreed not to tell the truth in order to save him from trouble. She  stated that she had decided to tell the truth now because she realized that the  plaintiff was not prepared to repay the loan and she was not in a position to do so  in the event that the defendant went after her for repayment. She stressed that  she deposited the loan amount into plaintiff’s account and that the money she  deposited was not proceeds from the sale of any car. She maintained that  anytime the loan recovery team approached her for repayment, she referred  them to the plaintiff. 

The second witness called by the defendant was an officer of Ecobank who was subpoenaed ostensibly to tender a pay-in slip, exhibit CW1 in evidence. Exhibit  CW1 was evidence of the deposit of an amount of GHS14,690 into the plaintiff’s  Ecobank account on 12th November 2010. The name of the depositor was Joyce  Antwi. 

Finally, the defendant called a third witness, Patience Adjei, who was an officer  of Oak Financial Services. She testified that the plaintiff accessed a loan facility  from her company and issued post-dated cheques for repayment. She claimed  that three of the postdated cheques issued by the plaintiff were returned and the plaintiff was notified of the returned cheques. She claimed that in spite of the  several demands made on the plaintiff to liquidate the amount the plaintiff failed  to repay the loan. Thus the Company made a formal demand on the plaintiff to  repay the loan and finally instituted legal action against him. She claimed that  before instituting legal action, officers of Oak Financial Services visited the  plaintiff at his office on a number of occasions. On one such occasion, they were  told at the gate that the plaintiff was in his office but when they entered the  premises, they were told that he had gone out. On another occasion, the plaintiff  followed up after their departure to pay GHS1,000. She stated that to date the  plaintiff was still indebted to Oak Financial Services to the tune of GHS7.117.  Under cross-examination, she insisted that Oak Financial Services had obtained  judgment against the plaintiff but did not tender a copy of this judgment. She  further stated that her company had reported the name to the Credit Reference  Bureau. 

Before proceeding to evaluate the evidence led by both sides it is important to  note, as rightly pointed out by Counsel for the defendant in his closing address,  that it is the duty of the plaintiff in an action for wrongful termination of the  employment contract to produce the terms of employment and indicate in which  way they have been breached. In the case of John Tagoe v. Accra Brewery Ltd  (2015) 1. G.N.S.C.L.R 580 cited by Counsel for the defendant in his address, Benin JSC of the Supreme Court of Ghana made the following statement at page  583; 

“However, in a claim founded on wrongful termination of employment  contract, the plaintiff assumes the initial burden of producing evidence to  satisfy the court about his terms of employment and also that the  termination of his appointment was contrary to the terms of his  appointment or existing law. The defendant would then be obliged to  produce evidence to justify the termination.”

In the said case the plaintiff had complained that his appointment was wrongfully  terminated because the allegation of assault made against him was not proven  during the disciplinary hearing that led to his dismissal. 

Counsel for the defendant also cited the case of Bukar Modu Aji v. Chad Basin  Development Authority Federal Ministry of Water Resources and Rural  Development (2015) I G.N.S.C.L.R 519 in which the same principle was  reinforced by the Supreme Court of Nigeria. At page 525, of the report, John  Iyanga Okoro J.S.C stated as follows; 

“it is trite law that when an employee complains that his employment has  been wrongfully terminated, he has the onus, first to place before the court  the terms of the contract of employment and, second, to prove in what  manner the said terms were breached by the employer. It is not in  principle for the employer who is a defendant to an action brought by the  employee to prove any of these issues.” 

It was thus central to the success of the plaintiff’s case that he produced evidence of the terms governing his employment with the defendant and  established in what manner the defendant breached those terms. A careful  examination of the pleadings and evidence led by the plaintiff revealed that he  did not fulfill this initial requirement. Although the plaintiff pleaded in paragraphs  17, 22, and 24 of his statement of claim that the termination of his appointment  was in contravention of the Human Resource Manual of the defendant, he did not  tender this document in evidence to establish his claim but focused inordinately on the issues that arose during the disciplinary hearing.  

Again, it is evident from the totality of the evidence led that the plaintiff’s conduct,  particularly in respect of the Randies Enterprise Loan affair, not only raised  issues of lack of transparency and conflict of interest but also compromised the  integrity of the loan evaluation process. This is because the evidence established that Joyce Antwi did deposit the loan amount into the plaintiff’s Ecobank account,  his denials notwithstanding. Furthermore, the evidence showed that the plaintiff  did prevail upon Joyce Antwi to guarantee the loan for Randies Enterprise although she did not know the client. It was evident from the demeanor of Joyce  Antwi during the trial and her admission that she lied to the disciplinary  committee to shield the plaintiff from trouble that she had taken the opportunity of  this trial to reflect upon her actions and to make a clean breast of matters. The  plaintiff, on the other hand, persistently denied any complicity in the Randies  Enterprise loan affair in spite of the weight of the evidence to the contrary. He  thus proved himself to be excessively deficient in the virtue of candour. It was  therefore not surprising that the defendant found it intolerable to continue to keep  him in its employment considering the position of trust he occupied as Head of  Credit and Operations Department. 

Furthermore, in respect of the loan contract between the plaintiff and Oak  Financial Services, although the fact of the plaintiff having borrowed money from  a rival company perse was not problematic, it did not reflect well on the  defendant that its Head of Credit and Operations was pursued by a rival  Company for recovery of a loan that he had borrowed and defaulted in repaying.  Indeed the fact that this information was eventually brought to the attention of the  defendant by an officer of the rival company, after visits to the office had failed to  yield results, made it all the more embarrassing given the prominent position that  the plaintiff occupied in the defendant Company. It is thus not surprising that the  defendant let the plaintiff go in order to redeem its image. Although the other  allegations of fraud, blackmail, sexual harassment etc were not proved, it is my  view that the allegations that were actually proved were grave enough to warrant  the dismissal of the plaintiff.  

I therefore find on the totality of the evidence led that the plaintiff firstly, did not  lead evidence of the terms of his employment contract and demonstrate in what  manner the defendant had breached same, which is a requirement to succeed in an action for wrongful termination of employment contract and secondly, that the  defendant was justified based on the allegations that were actually proved in  terminating the plaintiff’s contract of employment. I therefore dismiss the  plaintiff’s case. 

In respect of the defendant’s counterclaim, the plaintiff admitted that he took a  staff loan while in the employment of the defendant. The plaintiff further admitted  that he had not retired the loan. He did not point to any clause in the loan  agreement that relieved him from the obligation of repayment of the loan upon  ceasing to be in the defendant’s employment. I therefore hold that the defendant  is entitled to recover the outstanding loan amount with interest from the plaintiff. I  enter judgment for the defendant on its counterclaim. 

Having regard to the length of the trial, witnesses called by the defendant and  fact that defendant was represented by Counsel I shall award costs of GHC5,000  against the plaintiff in favour of the defendant.

COUNSEL

EDWARD OPPONG FOR PLAINTIFF;

NOORDEEN SAEED FOR DEFENDANT (WITH HIM EVA ANGELINA BENTIL DANIELS) FOR DEFENDANT.