RAZAK ABDUL SADDIQUE ALHASSAN V. SSNIT

JUDGEMENT 

Defendant is a statutory body established to operate and manage pension  scheme for workers of the Republic of Ghana and Plaintiff was its employee until  he was dismissed by a memo dated 23rd July, 2008 for alleged extortion of money  from pensioners. Aggrieved by the dismissal which has resulted in the present  suit, Plaintiff averred per his statement of claim among others that the alleged  dismissal was illegal as the officer, “Ag. Head of Human Resource Mgt”, who  signed the dismissal memorandum, is not the competent person to dismiss him.

Plaintiff contended that Defendant did not hear him before arriving at the various  conclusions captured in the memorandum dated 04/02/08. Plaintiff averred that  he worked on a pension claim for one Abu Seidu who came to “thank” him with  GHS160 in an envelope which he refused to accept and only discovered the  envelope on his desk the next day. Plaintiff averred that he traced the said Abu  Seidu’s house from the address he had provided Defendant but he was not at  home. Plaintiff stated that on his return to the office he found Abu Seidu with his  colleague where he handed the envelope unopened to Abu Seidu. Plaintiff  averred that he was queried by memo dated 04/02/2008 regarding extortion of  money from two persons including Abu Seidu but did not know about the second  incident cited in the query. Plaintiff contends that the letter dismissing him did  not make any reference to any findings based on which the conclusion that “your  gross misconduct is an act that seriously tarnishes the image of the Trust” was  arrived at. Plaintiff averred that following his dismissal he has appealed to  Defendant to rescind its decision to dismiss him to no avail wherefore he claims  the following reliefs: 

i) Declaration that the authority that allegedly dismissed the plaintiff was not  the competent authority to do that; 

ii) Further or in the alternative to i) 

a) Declaration that the dismissal of the plaintiff was wrong as it  infringed against the law. 

b) Declaration that the alleged facts on which the dismissal was based  were not established. 

c) A declaration that the facts of the giving and receipt, if established,  could not found the findings of extortion. 

d) Declaration that the dismissal was otherwise harsh. 

III. An order reinstating the plaintiff into the employment of the defendant. 

IV. An order requiring the defendant to pay all salaries and allowances due the  plaintiff from 26th February, 2008 to date. 

V. Interest on the said amount in relief iv) from 26th February, 2008 to date of  final payment. 

VI. General damages for breach of contract. 

VII. Cost. 

VIII. Any other reliefs the Honourable Court may deem fit to make. 

Defendant generally denied Plaintiff’s claim and contended that the officer who  signed the dismissal letter was competent to do and that that plaintiff was given a hearing and an opportunity to appear before a disciplinary Committee set up by  Defendant to investigate the allegations leveled against plaintiff, including, but  not limited to, the plaintiff’s objection to the inclusion of the then Area Manager  for Tamale- Mr. Felix Adams in the disciplinary committee. It is Defendant’s case  that reference was made to the disciplinary committee report in the dismissal  letter and asserts that , it was the plaintiff who told the pensioner to show  appreciation to the office for the services rendered to him and demanded GH¢  150 and additional GH¢10.00. The following issues were settled for trial: 

1. Whether or not the letter dismissing the plaintiff and signed by officer of  the defendant is competent to effect the dismissal of the plaintiff. 

2. Whether or not the defendant heard the plaintiff before arriving at the  conclusions it reached.

3. Whether or not the plaintiff extorted money from the pensioners.

4. Whether or not the dismissal was otherwise harsh. 

5. Whether or not the plaintiff is entitled to the reliefs endorsed. 

The provisions of the Evidence Decree, 1975 (NRCD 323) regarding burden of  proof in civil cases are as follows: 

Section 10—Burden of Persuasion Defined. 

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

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

Section 11—Burden of Producing Evidence Defined. 

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

(4) In other circumstances the burden of producing evidence requires a  party to produce sufficient evidence so that on all the evidence a  reasonable mind could conclude that the existence of the fact was more  probable than its non-existence. 

Section 12—Proof by a Preponderance of the Probabilities. 

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

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

Section 14—Allocation of Burden of Persuasion. 

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. 

Section 17—Allocation of Burden of Producing Evidence. 

(1) Except as otherwise provided by law, the burden of producing  evidence of a particular fact is on the party against whom a finding on  that fact would be required in the absence of further proof. 

(2) Except as otherwise provided by law, the burden of producing  evidence of a particular fact is initially on the party with the burden of  persuasion as to that fact. 

It was held in Bisi and Others v. Tabiri alias Asare [1987-88] 1 GLR 360-413 SC that  the standard of proof required of a plaintiff in a civil action was to lead such  evidence as would tilt in his favour the balance of probabilities on the particular issue. Plaintiff contended that his dismissal was illegal as the officer who signed  the letter dismissing him was not competent to do so hence the issue whether or  not the letter dismissing plaintiff and signed by the officer of Defendant is  competent to effect the dismissal of the Plaintiff. In plaintiff’s witness statement  which was adopted as his evidence in chief in the trial, no allusions were made to  the illegality of the dismissal letter having been signed by the person who did. The  dismissal letter tendered as exhibit H, was signed by “Ms Helena Vardon, Ag.  Head of Human Resource Mgt”. Plaintiff’s contention is gathered from the cross  examination of DW in reference to section 10 (3) of the Social Security Act, 1999  as follows: 

Q Sub section 3 (of section 10 of Social Security Act 1999) says that the  President may delegate his power of appointing of staff of SSNIT to either  the board or to the director general, is that not the case? 

A Yes that is the case 

Q Am saying that the provision, that is sub section 3 of section 10 is  empowering the president to delegate his power of appointment of staff of  SSNIT other than the director general and deputy to board of SSNIT or the  director general of SSNIT or to any other officer. 

A Yes my Lord 

Q If your claim is right that the President has delegated his power of  appointment to other staff members the letter or memo as per exhibit H did  not have the authority of the director general. 

There is no clear provision in any Act establishing Defendant identifying who may  dismiss an employee of Defendant but section 44 of the National Pensions Act,  2008 (Act 766) provides that the Director-General is responsible for the day-to-day administration of the affairs of the Trust and may delegate a function to an  officer of the Trust but shall not be relieved of the ultimate responsibility for the  performance of the delegated function. The Director-General clearly has the  statutory mandate for the day-to-day administration of the affairs of Defendant,  functions of which he may delegate to an officer of Defendant. Exhibit H shows  that the letter was authored by the Ag. Head of Human Resource Mgt. It is trite  that Human Resource departments of establishments are vested with the  personnel issues such as recruitment and disciplinary actions culminating in  dismissals among others of the establishments they represent. It is therefore not out of place in terms of lacking authority to have a dismissal letter signed by staff  of the Human Resource department of an establishment. 

Plaintiff Counsel argued that the President pursuant to article 297 (a) of the 1992  Constitution has power under article 195 of the Constitution to “exercise  disciplinary control over persons” to act in an office and it is only when the  President has delegated such powers in writing to any of the officers named in  subsection 3 of section 10 that the said officer will be in a position to exercise the  residuary powers of article 297 (a) of the Constitution. It is Plaintiff Counsel’s  submission that as Defendant failed to provide evidence that the President now  or any of the Presidents in the past delegated his authority to either the Board of  Defendant, its Director General or any officer to appoint officers below the rank  of Deputy Manager. 

That notwithstanding; the position of the law has been made clear in Felix Yaw  Bani v Maersk Ghana Limited Civil Appeal No. J4/48/2010 that “Once there are  facts on the record justifying the defendant/respondent dismissing the appellant for misconduct, the fact that the findings were made by a committee that was  acting, allegedly, ultra vires, is irrelevant.” 

The fact that the Director-General did not author the dismissal letter is irrelevant  in the determination of whether or not a dismissal is wrongful. What is pertinent  is whether the alleged misconduct was proven to justify the dismissal. Plaintiff’s  contention in this regard cannot be upheld. 

Whether or not the defendant heard the plaintiff before arriving at the  conclusions it reached. At paragraph 7 of his amended statement of claim,  Plaintiff averred that Defendant did not hear him before arriving at the various  conclusions captured in the memorandum dated 04/02/08. The said  memorandum dated 04/02/08 was tendered as exhibit B. Exhibit B reads in part  as follows: 

SUBJECT: QUERY 

I recount the following unfortunate incidences which you perpetrated against  some of our esteemed claimants. 

1. ABU SEIDU 

You extorted an amount of GHS160.00 out of the total benefits of GHS1,646.96  from the above mentioned Pensioner who made a report to the Office on 30th November 2007. 

2. YAKUBU IMORO 

You again extorted from the above Pensioner an amount of GHS80.00 out of his  total benefits of GHS1,064.51 which was reported to the Office on 4th December  2007.

As you are aware, this behaviour which you have confessed perpetrating by even  refunding the said Sums amounts to extortion of cash which is a gross misconduct  and unacceptable by the Trust. 

Could you therefore explain why maximum disciplinary action should not be taken  against you for this gross misconduct? 

Your reply should reach the undersigned within forty-eight (48) hours of receipt of  this query. 

The heading and contents of exhibit B shows that it is a query in which the  allegations are made clear to Plaintiff for his response. The records show  thereafter that he responded by exhibits C and E before he was interdicted and  appeared before a committee of enquiry. The letter dismissing Plaintiff, exhibit H  stated that “The investigations of the Disciplinary Committee revealed that your  gross misconduct is an act that seriously tarnishes the image of the Trust.” This  shows that the findings of the Disciplinary Committee formed the basis of  Plaintiff’s dismissal, the latter having been heard and findings of gross misconduct  made. Exhibit B states categorically that Plaintiff had confessed to perpetrating  the alleged offences. That notwithstanding the allegation of extortion in exhibit B  remained an allegation and of no consequence as there was no demonstration  that same formed the basis for the dismissal without further hearing to establish  the alleged misconducts. Counsel for Plaintiff submitted that Plaintiff was not  heard before the conclusions in exhibits B and D were reached. Exhibit D, a  memorandum from Defendant’s Branch Manager to Plaintiff dated 06/02/2008 reads in part as follows: 

SUBJECT: RE-QUERY

Reference is made to your response dated 5/2/2008 to query Ref:  BMT/Plaintiff.85308 and comment as below: 

In the case of Mr Abu Seidu, your explanation is difficult to believe because  if a parcel was left on your table , for you to find out later that it was cash,  why did you not draw the attention of the Branch Manager or for that  matter, your other colleague Claim Staff if indeed you had genuine  intentions. 

The question that comes up is that , is it normal for one to willingly give a so  called “gift” to a person in appreciation later to come back to report to the  Office of extortion and subsequent demand for a refund? 

Why is it that no other Claim Staff receives this so called “gift” from  numerous Claimants beside you? Are you the only claim staff who handles  claim files? What of your other colleague Investigator? Are you the last  claim staff who handles Claimants after they have been paid? These are  questions that would easily be asked by all concerned. 

Indeed you really confessed receiving the said cash from the two Claimants  when you were initially confronted by the Branch Manager, and you stated,  “Receiving the monies was my mistake”. To therefore state in your reaction  (copy attached) in respect of Mr Yakubu Imoro that you rejected and  returned the cash to him is a contradiction to your initial response which  can be proven if need be. 

Your reaction is therefore considered as nothing but trying to distort facts  and as such unacceptable. 

The claim of extortion of cash stated in the query therefore still stands….” 

In respect of exhibit D, Plaintiff stated at paragraph 16 of his witness statement  that “the manager sent a second memorandum to me by letter dated 6/2/2008  and stated that he has rejected my explanation. I wish to tender his second memorandum as exhibit D.” Exhibit D is titled “SUBJECT: RE-QUERY” and a reply  to Plaintiff’s response to exhibit B denying the allegations leveled against him in  exhibit B. The contents of exhibit D indicates that his manager was not convinced  with the explanation he offered in response to exhibit B. In fact the essence of a  query gives the receiving party the opportunity to respond to same in accordance  with the rules of natural justice. Further to exhibits B, C (reproduced below) and  D, Defendant afforded Plaintiff another opportunity to defend himself by  appearing before the committee of enquiry. Therefore Plaintiff’s assertion that he  was not heard before Defendant made the conclusions in exhibit B cannot be  upheld as exhibit B was a query and not a report of findings upon which  Defendant grounded its act of terminating Plaintiff’s appointment. 

Whether or not Plaintiff extorted money from pensioners, in other words  whether or not the alleged misconduct of extortion of money from pensioners  was proved before Plaintiff was dismissed. The allegations are as contained in  exhibit B above. In response to exhibit B, Plaintiff responded by exhibit C dated 5th February 2008 as follows: 

1. Abu Seidu 

The claimant applied for Old Age Pension and was duly paid in November  2007. An amount of GHS160.00 was presented to me as a gift apparently  for the role I played in the processing of the claim. I refused the gift initially explaining that I had only performed my duty as an employee of SSNIT. The  claimant persisted and left an envelope containing the amount quoted  above on my table. This was detected some time after the claimant left the  office. 

It is worth mentioning that all attempts at tracing the claimant after  noticing the contents of the envelope proved futile. Consequently, I kept the  money safely waiting for the day I will set eyes on him. 

It was during this period that the issue under reference cropped up. Indeed,  immediately the complaint came up as you are well aware, I readily gave  out the envelope containing the amount. Therefore the claim of extortion is  not the case. 

2. Yakubu Imoro 

The member was an Old Age Pension claimant who made an attempt to  give me a gift which I rejected and returned it to him. The claim of extortion  is again not the case. 

Being dissatisfied with Plaintiff’s response, Defendant set up a disciplinary  committee which heard Plaintiff and took evidence from six other staff members and three pensioners (victims/claimants) in the presence of Plaintiff who also  cross examined the witnesses unless he chose not to. The disciplinary committee  was made of DW the Area Manager of Defendant for Sunyani as the Chairman,  Wa Branch Manager as Management representative, Senior Staff Association  representative, Local Union representative and Public Affairs representative as  member/secretary. The committee’s report was tendered as exhibit 1 (same as  exhibit N). The committee made findings regarding Yakubu Imoro that it failed to  establish a case of extortion against accused for the reason that the act of giving/taking was not witnessed by anybody. On the other hand in the case of Abu  Seidu, the committee found that other staff members witnessed the complaint by  Abu Seidu and refund of the money by Plaintiff. A third victim by name Sarah  Gariba who was not named in the query exhbit B, testified that Plaintiff extorted  GHS50 from her following the processing of her old age lump sum of GHS500.  Sarah Gariba made a complaint to Defendant’s staff Ms Anaba who retrieved the  money from Plaintiff for her. This story was corroborated by Ms Anaba. The  committee therefore found Plaintiff culpable of extortion in the case of Abu Seidu  and Ms Gariba. In his witness statement, Plaintiff testified that exhibit N  contained a lot of inconsistencies and that over the years he had pursued  Defendant for the report to no avail until the court ordered Defendant to make  available the report to Plaintiff’s Counsel. It seems to me that what Plaintiff wants  to urge on the court is that the inconsistencies came to his attention when the  court ordered the production of exhibit N whilst the matter was in court but no  evidence on the part of Plaintiff was adduced by way of letter demanding the  report or otherwise to substantiate his assertion. The court is therefore not  convinced that Plaintiff made any such effort to obtain copy of the report. That  notwithstanding the inconsistencies being alluded to concern details such as  whether or not a receipt was prepared for Plaintiff to sign when he refunded the  money and whether the money was collected from Seidu in an unused office.  These details do not distract from the main issues of giving money and refunding  same which led to the establishment that Plaintiff had taken money from Seidu  and Gariba as found by the committee based on the testimonies of Plaintiff’s  colleagues and the victims. 

Plaintiff’s Counsel submitted that the act of extortion on the part of Plaintiff was  not established both in fact and in law. He argued that by virtue of section 151  and 239 of the Criminal and Other Offences Act, 1960 (Act 29) Defendant did not  have the capacity to pronounce whether or not a person’s conduct was extortion and what the committee ought to have done was to refer its findings to a  competent body for prosecution after which if Plaintiff is found guilty can he be  dismissed on grounds of extortion. It is pertinent to distinguish the work of a  committee of enquiry and that of a trial court. What is required of a committee of  enquiry is to be fair and reasonable; in that regard it is crucial that persons against  whom allegations are made are given notice of the alleged misconducts and and  be afforded a reasonable opportunity to be heard. A committee of enquiry is not  a court properly so called before which trials are conducted in accordance with  the law and rules of court. What the committee was investigating was an alleged  misconduct of demanding and or receiving money from Defendant’s clients for  services rendered by Plaintiff. Extortion per the Wordweb dictionary has three  definitions as follows: (i) An exorbitant charge (ii) Unjust exaction (as by the  misuse of authority) for example "the extortion by dishonest officials of fees for  performing their sworn duty" and (iii) The felonious act of extorting money (as by  threats of violence). I would think it is the unjust exaction of money by Plaintiff as  Defendant’s official in the performance of his duties that was under consideration  and not the criminal offence of extortion by way of threats. Plaintiff Counsel’s line  of argument cannot therefore be upheld. The court finds that the alleged  misconduct was proven against Plaintiff for the extortion of money from Abu  Seidu and Ms Gariba by Plaintiff before his employment was terminated. 

Whether or not Plaintiff is entitled to the reliefs endorsed on his writ. Plaintiff is  claiming among others that his dismissal was wrongful. The principle in Morgan and   Others v Parkinson Howard Limited [1961] GLR 68 is that in a claim for wrongful  dismissal the plaintiff must prove the terms of his employment and then prove  that his dismissal is in breach of the said terms, or that it contravenes some  statutory provisions for the time being regulating employment. (see also Sarfo v  A. Lang Ltd.[1978] I GLR 142). The same principle was adopted in Kobi v Ghana  Manganese Co. Ltd [2007-2008] SCGLR 771 as follows: “The issues agreed upon  for trial, were whether or not the termination of the Plaintiff’s appointment was  wrongful and illegal and whether or not the Plaintiffs were entitled to their claims.  This being an action for damages for wrongful dismissal, each Plaintiff assumed  the burden of proving the terms of his employment; that the determination was in  breach of the terms of the agreement , or in contravention of statutory provisions  for the time being regulating employment. If a Plaintiff failed to satisfy the court  on these points, his or her claim cannot succeed.” Plaintiff’s contention is that his  dismissal is wrongful as it infringed against the law. Plaintiff did not specify which  law had been infringed. Section 15 of the Labour Act, 2003 (Act 651) stipulates  grounds for termination of employment as follows:  

A contract of employment may be terminated, 

(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 out his or her  work due to 

(i) sickness or accident; or 

(ii) the incompetence of the worker; or 

(iii) proven misconduct of the worker. 

It is therefore the case that where the act of termination is called into question,  the employer must show that the alleged misconduct was proven. In exhibit 1, it  was stated that Seidu’s s story was not different from what other witnesses had  said so far about his case. He testified in the presence of Plaintiff that when his  Payment Advice was handed him, Plaintiff told him on such occasions it was  customary in the office for claimants to show appreciation to staff for help given.  Against this backdrop Seidu parted with the money to Plaintiff and stood his  grounds when cross examined by Plaintiff before the committee. Plaintiff wrote in  exhibit C that all attempts to trace Abu Seidu after noticing the contents of the  envelope proved futile yet what other attempt(s) Plaintiff made in this regard  apart from his testimony that he went to the Seidu’s house the day after the  latter had left the envelope on his desk and met his absence was not disclosed.  Plaintiff testified that on his return from Seidu’s house he met Seidu with his  colleagues where he refunded the money to Seidu. There was therefore no space  of time to accommodate Plaintiff’s assertion that when all attempts to trace Seidu  proved futile, “I kept the money safely waiting for the day I will set eyes on him.” Plaintiff again writes in exhibit E that “the whole issue cropped up the following day after a colleague led claimant to the supervisor for the retrieval of the  envelope.” The question that one may ask is why would someone willingly give  money and seek the assistance of other officers to retrieve same from Plaintiff.  These cast doubts on Plaintiff’s story as expressed in exhibit D, letter from  Plaintiff’s branch manager in reaction to Plaintiff’s response to exhibit C.  

Events leading up to the refund of the money and evidence led before the  committee do not lend credence to Plaintiff’s story. The court is not convinced  that Plaintiff’s story is more probable than the other witnesses who testified  before the committee. The committee also made a profound finding that the  behaviour of Plaintiff seriously tarnished the image of Defendant and staff of its  Tamale Office. The committee was thus entitled to come to the conclusion that  they did having made definite findings against Plaintiff; for it is a basic principle of  law that “a servant whose conduct is incompatible with the faithful discharge of  his duty to his master may be dismissed … Dismissal is also justified in the case of  a servant …If his conduct has been such that it would be injurious to the master’s  business to retain him” (see Laguda v. Ghana Commercial Bank [2005-2006]  SCGLR 388, Felix Yaw Bani v Maersk Ghana Limited Civil Appeal No. J4/48/2010). The conduct of dismissal was justified as the alleged misconduct was proved.  Exhibit 1, stated in its conclusion under “committee’s findings and  recommendations” that in accordance with the Human Resource Manual,  Plaintiff’s misconduct constituted a major offence which is punishable by  Termination of Appointment and therefore must suffer the consequences. The  Human Resource Manual was not exhibited before the court which provided that  such major offence was punishable by termination of appointment. 

Plaintiff’s Counsel in his address raised the issue whether or not Defendant  discriminated against Plaintiff? Counsel submitted on behalf of Plaintiff that he  could not have envisaged this issue because he did not have exhibit 1. Plaintiff  Counsel made reference to page 21, second paragraph of exhibit 1 which states as  follows: 

“When witness and his son were asked whether they had ever visited Zulfata in  her house, they responded in the negative. However, when they were told that  Zulfata had told the Committee that they had been there, they confirmed it.  Witness’ son explained that he was sent by his father to present some guinea  fowls to her to show appreciation for the help given him.”  

It is in respect of this revelation of Mr Abu Seidu having given a gift of unspecified  number of guinea fowls to Zulfata, Plaintiff’s colleague that Plaintiff’s Counsel  argued in his address that the committee failed to take any action and or  recommend any punishment against Zulfata thereby infringing article17(1) of the  1992 Constitution and therefore makes the treatment of Plaintiff unlawful on  grounds of inequality of treatment. Plaintiff did not seek relief for damages on  grounds of discrimination and neither was same suggested during the trial to  afford Defendant the opportunity to defend itself fully. DW1 was cross examined  thus: 

Q Please take a look at page 21 of exhibit 1, please read the second paragraph  of page 21  

A read as reproduced above

Q Did you believe the story of the pensioner that he gave guinea fowl to  Zulfata 

A Yes My Lord 

Q Was Zulfata asked about this allegation by the committee

A My Lord the committee was investigating the allegation of cash extortion 

Q Did you ask Zulfata to confirm this allegation that she received guinea fowl  from the pensioner 

A No My Lord  

Q Please open to page 4 of exhibit 1, item 3; read to the court what your  terms of condition was. 

A Reads as follows: 3.0 TERMS OF REFERENCE 

∙ To find out whether there was any wrong doing on the part of the staff  involved in the case. 

∙ To investigate any other related issues 

∙ To recommend appropriate disciplinary action (if any). 

∙ To recommend appropriate measures to be taken to forestall future  occurrences. 

Q You don’t think especially you have stated that it is against the policy of the  defendant for pensioner giving gifts to member of staff 

A My Lord the committee focused on the cash extortion allegation by Plaintiff 

Q I am putting it to you that you did not investigate that matter because the  committee has come with their minds made from day one to victimize the  Plaintiff 

A My Lord that was not so, I was meeting the Plaintiff for the first time,  besides management was very fair to Plaintiff; when he objected to the  chairmanship of the first committee constituted by management; besides  out of the three cases that were investigated the committee did not find  plaintiff guilty in the case of one of them because there was no witness to  the alleged act of giving and refund; these show that the committee was  fair minded. 

From the foregoing it was never apparent that Plaintiff intended to prove  discrimination against him because Plaintiff Counsel’s suggestion was that “I am  putting it to you that you did not investigate that matter because the committee  has come with their minds made from day one to victimize the Plaintiff “. What  can be gathered from this line of cross examination in the light of the suggestion  by Plaintiff’s Counsel was that he sought to prove victimization and not  discrimination. The issue of discrimination has thus come up for the first time in  Plaintiff Counsel’s address as same was not pleaded nor stated during the trial.  The position of the law is that the trial court is not entitled to consider a matter  that is raised for the first time in a party’s final address such as in the instant case.  It was held in CFAO v Archibold [1964] GLR 718, SC that “…the trial court is not  entitled to consider a matter raised in the final address for the first time.” The court is therefore unable to consider the issue of discrimination same having been  raised for the first time in the final address of Plaintiff’s Counsel. 

Another issue raised by Plaintiff was whether a witness can testify without an  oath. Plaintiff’s Counsel submitted that pursuant to section 61 of Evidence  Decree, 1975 (NRCD 323) failure by the witnesses to testify under oath before the  committee rendered the proceedings before the committee void as well as the  termination of Plaintiff’s employment which was founded on it. The section 61  states that “(S)ubject to any enactment or rule of law to the contrary, every  witness before testifying shall take an oath or affirmation that he will testify  truthfully, and any statement made by a witness without such oath or affirmation  shall not be considered as evidence.” However, section 178 of the Evidence  Decree stipulates that the Evidence Decree applies to civil and criminal actions  except as to privileges does it apply to all matters both in a court setting or non  court setting. Therefore whether or not witnesses before the committee testified  without oath is of no consequence to the validity of the committee’s work and  consequent actions including the termination of Plaintiff’s employment. 

Plaintiff is seeking a declaration that his dismissal was otherwise harsh and should  be reinstated. There is no fixed rule of law defining the degree of misconduct that  would justify dismissal. (see Kobea and others v Tema Oil Refinery; Akomea Boateng and others v Tema Oil Refinery (Consolidated) [2003-2004] SCGLR 1033). 

The dismissal of Plaintiff in the circumstance is justified and cannot be said to be  harsh. Plaintiff’s claim fails in its entirety and same is dismissed. Cost of  GHS1,000.00 awarded in favour of Defendant.

(SGD) 

Justice Gifty Dekyem (Mrs) 

Justice of the High Court, Industrial Court 1, Accra 

COUNSEL

Ali Gomdah Abdul-Samad Esq for Plaintiff

Henry Orraca-Tetteh Esq for Defendant