FRED QUAA-AFFUL V. VRA RESSETTLEMENT TRUST FUND

JUDGMENT

The Plaintiff who was the former Executive Director of the Defendant institution by a Writ of Summons dated 10th November, 2009 instituted this action against the Defendant claiming the following reliefs:-

a. Declaration that the termination of his appointment as the Executive Director is unfair and wrongful.

b. An order for his reinstatement to his position or in the alternative an order for payment of punitive compensation for wrongful and unfair termination of appointment.

The Defendant entered appearance on 30th November, 2009 and went on to file its Statement of Defence on 17th December, 2009 denying the Plaintiff’s claim.

In an attached Statement of Claim, the Plaintiff avers that on 31st December, 2003 he saw an advert in the Ghanaian Times and responded to it. He was invited for interview at the Public Services Commission and was offered the appointment as the Executive Director with effect from 1st May, 2004. He was, therefore, offered the appointment on merit and not under any patronage. However, immediately the present government took over the reigns of administration, the Board Chairman of the Defendant company by a letter dated 2nd October, 2009 asked him to take his outstanding leave. Whilst he was on leave his appointment was terminated by a letter dated 9th October, 2009 without any reason being assigned.

The Plaintiff goes on to aver that the termination of his appointment offends the provisions of the Labour Act and also Article 191 of the Constitution of Ghana.

According to the Plaintiff he was on a monthly salary of GH¢2,360.00. In addition to that he was entitled to accommodation and the use of an official vehicle. By the termination of his appointment he has been abruptly denied of those benefits.

There was no restructuring exercise as alleged by the Board Chairman and in any case if there was the need for any restructuring he as the Executive Director could not have been affected as he would have tabled that need before the Board and also he would have been part of the decision.

The Plaintiff is fifty-five years and at this stage of his life it would be difficult to be employed as he is quite close to his retiring age. So under the provisions of both the Labour Act and the Constitution he is entitled to be reinstated and if that is not possible then he ought to be given adequate compensation for the injury and trauma that he has been made to undergo.

In its Statement of Defence, the Defendant avers that the Defendant institution is not a natural person clothed with capacity to sue or be sued so the current action is not maintainable against it at law. Even though the Defendant stated in the Statement of Defence that it would take steps to have the suit dismissed on that ground no such steps were taken so the Court assumes that the Defendant had abandoned the idea.

The Defendant admits that the Plaintiff’s appointment was made on merit it, however, avers that there is no link between the present government taking over the reigns of administration on 7th January, 2009 and the termination of Plaintiff’s appointment. It avers that the termination of Plaintiff’s appointment was done by mutual agreement by the Plaintiff and the Management of the Defendant institution. He accepted his termination without complaint and even demanded that he be paid two months’ salary in lieu of notice as spelt out in his appointment letter, having rejected the usual one (1) month as contained in the conditions of service initially proposed to him. He has since collected the two months’ salary payment in lieu of notice for the lawful termination of his appointment.

The Defendant goes on to aver that the termination of Plaintiff’s appointment was carried out in strict compliance with the relevant laws. The issue was discussed thoroughly with the Plaintiff until agreement was reached so the Plaintiff cannot turn round to describe the process as ‘unfair and wrongful’. The Plaintiff is, therefore, not entitled to his claim.

On 17th March, 2010 the Plaintiff filed application for directions in which he listed the following issues for trial:-

a. Whether or not the termination of Plaintiff’s appointment is wrongful and unfair.

b. Whether or not the termination of Plaintiff’s appointment is against the provisions of Article 191 of the 1992 Constitution and the provisions of the Labour Act,

c. Whether or not the termination of Plaintiff’s appointment was by mutual agreement between Plaintiff and the Defendant.

d. Whether or not the Plaintiff is entitled to his reliefs.

e. Any other issues raised by the pleadings.

No additional issues were filed by the Defendant so on 29th March 2010, the Court set down all the issues as listed above for trial.

At the trial Plaintiff’s case was presented by the Plaintiff himself without calling a witness. His testimony was essentially a repetition of his averments in his Statement of Claim. He told the Court that it was the Public Services Commission that placed the advertisement in the Ghanaian Times inviting suitable Ghanaians to apply for the position of the Executive Director. He tendered a copy of the Advertisement as Exhibit A.

According to him on 30th March 2004 he was invited for an interview with eleven others. Due to his performance he was later called by the Chairman of the Trust Fund and given the offer after they had done the necessary security checks. So by a letter dated 20th April, 2004 he was offered the appointment. He tendered in evidence a copy of his appointment letter as Exhibit B. So on 2nd May, 2004 he assumed duty as the Executive Director of the Defendant institution.

With the change of government in 2009 the new Minister of Energy invited all sectors under the ministry to brief him. So the Plaintiff went to the ministry to brief the Minister on the Defendant institution. The Minister asked him when his contract was going to end and the Plaintiff told him that he was not on contract and that he was a permanent staff of the Defendant institution. The Minister, therefore, asked for a copy of his appointment letter which he sent together with the results of the interview at the Public Services Commission.

Subsequently, after a board meeting on the 8th September, 2009, the Chairman of the board called him in the presence of T. K. T. Agban, the Chairman of the Projects Committee and told him that they were going to take his job from him but they did not assign reasons for that. He claims that he reacted to that by writing to the chairman. He tendered the letter in evidence as Exhibit C after counsel for the Defendant had objected to the tendering of the letter in evidence and it had been overruled by this Court.

On 2nd October, 2009 he was asked to proceed on leave. He tendered the letter on that in evidence as Exhibit D. While the Plaintiff was on leave he received another letter dated 9th October, 2009 terminating his appointment with the Defendant institution. He tendered the letter in evidence as Exhibit E.

He gave his salary at the time of the termination of his appointment as GH¢23,688.00 a month. He claims that in addition to that by estimation he had GH¢200.00 a month as rent, a car which was fuelled with about 10 gallons of fuel a week which was about GH¢50.00 per week. His utilities valued about GH¢960.00 per annum were also fully paid by the Defendant. He was also paid entertainment allowance of GH¢300.00 a month and GH¢960.00 per annum as fuel for his personal use at official functions.

He claims that the Defendant institution was registered by the Registrar General Department as a company limited by guarantee so it is a legal entity. He tendered in evidence copies of the trust document and a letter from the Registrar General Department confirming the Defendant as a company limited by guarantee as Exhibits F and G respectively.

According to the Plaintiff as a public servant his appointment cannot be terminated without being given a reason. One person could not terminate his appointment even if it was as a result of restructuring without negotiations for redundancy. The termination of his appointment was, therefore, wrongful.

The case for the Defendant on the other hand was presented by Andrew Tontoh Baffour, the Chairman of the VRA Resettlement Fund Management Trust, Samuel Breman, a security officer of the Defendant institution, Mathanlla Bonney, Finance Officer and Emmanuel Kwesi Bannuel, a member of the board.

According to Andrew Tontoh Baffour when he was appointed the Chairman of the board in about the middle of July, 2009 the Plaintiff was the Executive Director of the Defendant institution. He claims that when the Board was inaugurated in August, 2009 the Ministry of Energy directed that some changes would be made and the Board acted on it. After the initial Board meeting in middle of September, 2009, the Plaintiff was invited and they told him that it was likely his appointment would be terminated and that the decision was that he would go on leave. On that day the Plaintiff said nothing. However, a day or two after, the Plaintiff went to the witness in his office at the Ministry of Energy and expressed his unhappiness about the message they gave him. The Plaintiff expressed his intention to write a protest and the witness advised him against that. The witness went on to assure him that the Ministry wanted to offer him another appointment as Stores Manager with the Ministry. The Plaintiff, therefore, shelved the protest. The witness denied knowledge of Exhibit C.

The Plaintiff had a lot of discussions with the witness on the issue, especially on the offer made to him. Since the Plaintiff had not gone on leave for a very long time they first decided that he should proceed on leave. So on 2nd October, 2009, they wrote to him to proceed on twenty working days leave. While they were discussing where to transfer him to in the Ministry with him, the Board decided that his appointment was to be terminated so they gave him a letter to that effect. They paid him what was due him per his appointment letter. He tendered in evidence, the original of Plaintiff’s appointment letter shown to him by the Plaintiff himself as Exhibit 1. He also tendered in evidence a letter written to him by the Plaintiff on his outstanding leave as Exhibit 2 as well as a letter written by the Plaintiff for the purchase of vehicle No. GW 6331 U as Exhibit 3.

The witness concluded his evidence-in-chief by saying that the Plaintiff has been paid what is due him by his conditions of duty so he is not entitled to his claim.

Samuel Breman gave evidence to the effect that the Plaintiff went to the premises of the Defendant institution on two different occasions to sign payment vouchers and collected payment slips from him. He tendered in evidence documents on this as Exhibits 5 and 6.

The Finance Officer, Mathanlla Bonney gave evidence to confirm that the Plaintiff has been paid his entitlement made up of the two months’ salary in lieu of notice and his leave converted to cash.

Emmanuel Kwesi Bannuel told the Court that in 2009 the Board of the Defendant institution was reconstituted so there was reorganization of the Defendant institution which led to restructure of the place as a result of which the Plaintiff was affected. That is the Board decided to terminate his appointment. Before that the witness and the Chairman of the Board called him and put before him that in view of the reorganization of his department it had become necessary to terminate his appointment. He claims the Plaintiff was paid his entitlement.

From the pleadings and the evidence before the Court, the main issues for consideration will be grouped as follows:-

a. Whether or not the Defendant institution is a legal person who can sue and be sued.

b. Whether or not the Defendant institution is a public service.

c. Whether or not the termination of Plaintiff’s appointment is wrongful and unfair

d. Whether or not Plaintiff is entitled to his reliefs.

I will now proceed to evaluate the evidence before the Court as regard the issues that have been identified by this Court as being relevant for the determination of this case. I will take the issues seriatim. The first issue is whether or not the Defendant institution is a legal person who can sue and be sued.

A legal person refers to an artificial person or an entity created by law and given certain legal rights and duties of a human being. See Black’s Law Dictionary 9th Edition page 1258. Such an entity can sue and be sued. In the current case whilst the Plaintiff claims the Defendant institution is registered as a company limited by guarantee and, therefore, is a legal person, the Defendant denies that averment. No registration documents were tendered in evidence to show that the Defendant institution is a legal person. However, the Plaintiff tendered in evidence a search result from the Registrar General’s Department as Exhibit G. The said exhibit shows that VRA Resettlement Trust Fund was incorporated under the Companies Code 1963, Act 179 as a company limited by guarantee. The Defendant did not dispute the exhibit. This follows that the Defendant institution is incorporated under the Companies Act as a company limited by guarantee. This makes it a legal person that can sue and be sued and I so hold.

The next issue to consider is whether or not the Defendant institution is a public service. Whilst the Plaintiff claims the Defendant institution is a public service, the Defendant claims it is not. According to the Defendant by Article 190 (1) of the 1992 Constitution the Defendant is not a public service.

By Article 190(1) of the Constitution, the Public Services of Ghana Shall include:-

(a) the Civil Service,

the Judicial Service,

the Audit Service,

the Education Service,

the Prisons Service,

the Parliamentary Service,

the Health Service,

the Statistical Service,

the National Fire Service,

the Customs, excise and Preventive Service,

the Internal Revenue Service,

the Police Service,

the Immigration Service, and

the Legal Service.

(b) public corporations other than those set up as commercial ventures;

(c) public services established by this Constitution; and

(d) such other public services as Parliament may by law prescribe.

So by Article 190(1) as shown above the Defendant institution is not listed as a public institution. It must, however, be noted that by Exhibit F, the Defendant institution was set up as a subsidiary of the Volta River Authority (VRA) under the Ministry of Energy. Since it is set up under the Ministry of Energy it follows that it is a public service. This explains why the position of the Executive Director was advertised in the name of the Public Services Commission. By Article 196 of the 1992 Constitution the Public Services Commission makes recruitment and appointment into the public services. So being a public service it was the Public Services Commission in the performance of its constitutional duty that appointed the Defendant as the Executive Director of the Defendant institution. The position of the Defendant institution as a public service was also confirmed by both the Board Chairman and a member of the board in their testimonies in Court. It is, therefore, the opinion of this Court that even though it is not directly stated in the Constitution the Defendant institution is a public service set up under the Ministry of Energy and I so hold.

The next issue to consider is whether or not the termination of Plaintiff’s appointment is wrongful and unfair. It is the duty of the Plaintiff to prove to Court that by his terms of employment or by the terms of existing statutory provision the termination of his appointment by the Defendant institution was wrongful and unfair.

The principle on this is provided in the case of Morgan and Ors. v. Parkinson Howard Ltd. (1961) GLR 68 in which Ollenu J (as he then was) stated at page 70 as follows:

“In a claim for wrongful dismissal, it is essential that the Plaintiff should prove the terms of his employment and then prove either that the determination of the employment is in breach of the terms of his agreement, or that the determination is in contravention of the statutory provisions for the time being regulating employment. His claim cannot succeed if he fails to satisfy the Court on these points.”

In the current case the Plaintiff claims that by provisions in the Labour Act and Article 191 of the 1992 Constitution, the termination of his appointment as the Executive Director of the Defendant institution is wrongful and unfair.

The relevant provision in the Labour Act, 2003 (Act 651) is found in Section 15 which states grounds for termination of employment as follows:-

a. by mutual agreement between the employer and the worker;

b. by the worker on grounds of ill-treatment or sexual harassment;

c. by the employer on the death of the worker before the expiration of the period of employment;

d. by the employer if the worker is found on medical examination to be unfit for employment;

e. by the employer because of the inability of the worker to carry on his or her work due to

i. sickness or accident; or

ii. the incompetence of the worker; or

iii. proven misconduct.

The provisions as stated above show that for termination of one’s appointment to be lawful the employer must prove one of the grounds stated therein. Other than that the termination becomes wrongful.

It becomes unfair if the employer fails to prove that the reason for termination is fair or the termination was made in accordance with a fair procedure or the Act. See Section 63 (4) of the Labour Act.

In the current case the Defendant claims that the termination of the Plaintiff’s appointment is lawful and fair in the sense that it was by mutual agreement. The Chairman of the Board of Directors, Andrew Tontoh Baffour who gave evidence on behalf of the Defendant claims that when the Board was inaugurated in August 2009, the Ministry of Energy directed that some changes would be made. So after their initial meeting in the middle of September, 2009 the Plaintiff was invited by him, in the presence of two other management personnel and he told him that in the circumstances it is likely his appointment may be terminated.

He claims the Plaintiff was not happy about it and had wanted to send a protest but he advised him against that and assured him that he would be offered another appointment within the Ministry. The Plaintiff as a result abandoned the idea of the protest. This cannot be mutual agreement. The evidence clearly shows that he was just told that his appointment was going to be terminated. The evidence goes on to show that he agreed to the termination because he was assured that he would be offered another appointment.

According to the Board Chairman in the process of deciding where he would be transferred to they decided to terminate his appointment. So whilst he was on leave his appointment was terminated. There was, therefore, no mutual agreement between the Plaintiff and the Defendant for the termination of Plaintiff’s appointment. This contravenes Section 15 of the Labour Act.

It is observed from the evidence that the Plaintiff got his appointment on merit. The position was advertised, he applied and he was invited to an interview with eleven other applicants. Due to his performance at the interview he was offered the job and he accepted it. Then due to the reconstitution of the Board his appointment was terminated for no reasonable cause. This makes the termination of the appointment unfair. If employers can decide at will to terminate the appointments of employees then employees are not safe.

The Plaintiff further claims that the termination of his employment is against the provisions in Article 191 of the 1992 Constitution. The said provision states as follows:-

“A member of the public services shall not be:-

(a) victimized or discriminated against for having discharged his duties faithfully, in accordance with this Constitution; or

(b) dismissed or removed from office or reduced in rank or otherwise punished without just cause.”

It has been established by this Court in this judgment that the Defendant institution is a public service. It follows that the Plaintiff as the Executive Director of the Defendant institution was a public servant. In view of that the provision in Article 191 of the Constitution was applicable to his appointment. So as provided by the Constitution his appointment could not be terminated by the Defendant without just cause.

Meanwhile, the evidence before the Court shows that there was no reasonable cause for the termination of his appointment by the Defendant. The Defendant claims that the Defendant institution was being reorganized but the evidence shows that no such reorganization took place. It is even observed from the evidence that no other employee of the Defendant company apart from the Plaintiff lost his job because of the alleged reorganization. According to the Plaintiff a few days after his appointment had been terminated another person was appointed to take over his position. So what reorganization took place? Plaintiff’s appointment was terminated for reasons best known to only the Board members and this is against the provision in Article 191 of the 1992 Constitution as well as Section 15 of the Labour Act, 2003 (Act 651).

The appointment letter of the Plaintiff states in part as follows:-

“Your appointment may be terminated by giving two months’ notice in writing on either side or paying two months’ salary in lieu of notice. The fund, however, reserves the right to terminate your appointment on ground of poor performance, misconduct or indiscipline.”

This does not mean the Defendant without just cause can decide to terminate Plaintiff’s appointment by paying him two months’ salary. So the fact that the Plaintiff has been paid two months’ salary in lieu of notice by the Defendant does not mean the termination of his appointment is lawful as being alleged by the Defendant.

The Supreme Court held in the case of G.N.T.C and Anor. v. Baiden (1991) 1 GLR 567 that where a public officer was dismissed or removed from office, without a just cause his dismissal was not only wrongful but was unconstitutional and null and void. And in all such cases, reinstatement might be ordered or if that was impracticable damages going beyond the period of notice might be awarded. See also Ghana Cocoa Marketing Board v. Agbettor and Others (1984-86) 1 GLR 122.

So in the current case in view of the fact that termination of Plaintiff’s appointment is against the provisions in the Labour Act and Article 191 of the 1992 Constitution it follows that the termination of his appointment is wrongful and unfair and, therefore null and void and I so hold.

The next issue for determination is whether or not the Plaintiff is entitled to his claim. Having found that the termination of Plaintiff’s appointment was wrongful and unfair, it follows that he should be awarded such compensation as he will be entitled by law. The question is what quantum of compensation is appropriate to be paid to the Plaintiff?

Various authorities have provided different measures of damages that must be paid in cases of wrongful dismissal. Holding 5 of the case of Owusu-Afriyie v. State Hotels Corporation (1976) 1 GLR 247 states as follows:

“The entitlement of the Plaintiff to her salary as from the date of dismissal depended upon the practice of the Defendant corporation and the terms and conditions of staff, for even though the general principle was that a person was not entitled to claim money as payable under a contract unless he had earned it under the contract, this was not an absolute rule. Under the Industrial Relation Act 1965 Section 32, where an unfair practices tribunal ordered reinstatement, it could also order the employer to pay the employee a specific sum by way of compensation for any loss of earnings attributed to the unfair dismissal. Where it was shown that absence from work with the permission of the employer did not debar the employee from earning under the contract, an employee who had not worked as a result of the action of the employer could claim his salary or wages under his contract of employment. Under Article 24 of the Condition of Service, a suspended or interdicted employee was entitled to full salary if eventually exonerated by the employer. The Plaintiff had been exonerated by the Court and was therefore equally entitled to her salary.”

There is also the case of Nartey Tokoli and Ors. v. Volta Aluminum Co. Ltd. No. 2 (1989-90) 2 GLR 341 in which the Supreme Court in reviewing its own decision held in holding 2 as follows:

“The measure of damages for wrongful dismissal from employment was not confined to only loss of wages or salary, but in addition the employee was to receive his entitlements under the contract of employment. The Plaintiffs were, therefore, entitled to receive their salaries from the dates they ceased to receive them to the dates of their respective de facto termination, including an additional twelve months salary (as awarded by the High Court in the exercise of its discretion) as damages for wrongful dismissal as at respective dates of the de facto termination of their employment. As the termination of their employment was held to be void and no legal effect they remained employees de jure and would therefore be entitled to earn leave allowance, bonus, long service awards, including food packages and all other benefits said to be enjoyed on a so called gentleman agreement basis, all of which should be converted into cash if feasible as at the respective dates of the Plaintiff de facto dismissal. They were also to receive their entitlement under Article 40 of the Collective Agreement. However, in calculating their entitlements, account should be taken of any period within which any employee had obtained employment within the relevant period covered by the award.”

In the case of GNTC and Anor. v. Baiden (supra), the Supreme Court held that it would be unrealistic to pay the Plaintiff salary as though up to the date of the judgment of the High Court he was rendering services to the Defendants. He was, therefore, awarded two years salary for wrongful dismissal. The Court also held that since the dismissal was a nullity and not merely wrongful, it was proper that the Plaintiff be paid in addition all allowances he would have received during the period but excluding the salaries of servants of the corporation such as a driver or watchman, assigned to render him personal services. He was also entitled to gratuity and other retiring benefits as though he had retired from the service of the corporation at the end of the period.

There is also the case of Ankorful v. State Fishing Corporation (1991) 2 GLR 348 in which Osei Hwere J. A. (as he then was) held at holding 2 as follows:

“On the authorities where a servant had been wrongfully dismissed from his contract of employment, damages were to be measured by the amount of salary which the servant had been prevented from earning by reason of the wrongful dismissal. The Plaintiff was, therefore, entitled to:

i. all his salaries calculated from the date of his interdiction to the date of judgment,

ii. payment of three months’ salary in lieu of proper notice and

iii. all his end of service awards calculated from the date of his interdiction up to the date of judgment.

The calculation of his entitlement should be reckoned on the substantive post he held at his dismissal. He was also entitled to damages for prospective loss of promotion and loss of employment. He had been kept out of his employment for over ten years. If he had stayed in his job, he would have earned his promotion.”

Ampiah J (as he then was) also held in the case of Turkson v. Mankoadze Fisheries Ltd. (1991) 2 GLR 430 at holding 2 as follows:

“The parties having provided in Article 19 (4) of the Collective Agreement that when an employee was found to have been wrongfully dismissed he should be reinstated and his full pay restored together with any arrears, the Defendant would be ordered to do so accordingly. But should the Defendant be unable to reinstate the Plaintiff, it would be ordered to pay to the Plaintiff all his entitlements from the date of the wrongful dismissal to the date of judgment.”

Also in assessing damages for wrongful dismissal, the Court must have regard to all the circumstances of the case considered as fair and reasonable. It must consider the general unemployment problem in the country and all the circumstances of the case and also the fact that the award of damages in these matters has ranged between one year and two years. See Kobi v. Ghana Manganese Co. Ltd. (2007-2008) SCGLR 771.

So from the authorities referred to in this judgment, since the termination of Plaintiff’s appointment has been held to be wrongful and unfair he is entitled to enjoy all benefits he was enjoying as the Executive Director. The evidence shows that before the termination of Plaintiff’s appointment his total emoluments per month were as follows:-

(a) Basic salary per month - GH¢2,368.08

(b) Phone per month - GH¢ 80.00

(c) Entertainment allowance per month - GH¢ 300.00

(d) Fuel allowance per month - GH¢ 200.00

(e) Rent per month - GH¢ 300.00

(f) Utility per month - GH¢ 80.00

Total emolument per month - GH¢3,328.08

The Plaintiff told the Court in his evidence-in-chief that this was his total emolument per month but he was not challenged on it during cross examination. This implies that the Defendant admits the figure given as being the total amount earned by the Plaintiff when he was in the employment of the Defendant as the Executive Director. The Court, therefore, accepts that figure as his total emolument per a month.

It must be noted that an employer has the right to terminate the appointment of an employee he does not want to work with. However, the right to terminate such appointment is dependent on the terms of the contract and the existing statutory provisions on employment and it must be exercised in accordance therewith. If such appointment is terminated in contravention of such provisions it implies the employer is not willing to work with the employee so it will be appropriate to order payment of either damages or compensation to the employee instead of ordering his reinstatement. Even in the current case the evidence shows that a new person has been appointed as the Executive Director so this Court cannot order the reinstatement of the Plaintiff. He is, however, entitled to be paid compensation for wrongful and unfair termination of his appointment.

So in conclusion judgment is entered for the Plaintiff against the Defendant as follows:-

a. It is declared that the termination of the Plaintiff’s appointment as the Executive Director of the Defendant institution is wrongful and unfair.

b. It is ordered that the Defendant pays to the Plaintiff an amount of GH¢79,873.92 being his total monthly emoluments for 24 months as compensation for wrongful and unfair termination of his appointment.

c. The Defendant is ordered to pay costs of GH¢3,000.00 to the Plaintiff.

COUNSEL

MAJOR DARTEH FOR THE PLAINTIFF,

MR. K. T. K. AGBAN FOR THE DEFENDANT