AGNES YARBOI V. COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE PER THE DISTRICT DIRECTOR, AKIM ODA.

JUDGMENT

L. L. MENSAH, J.A.

This is an appeal launched by the Plaintiff/Appellant who will hereinafter be referred to as the Plaintiff against the judgment of the High Court, Koforidua in favour of Defendant on 29th September, 2008. Defendant/Respondent is hereinafter referred to as the Defendant.

The facts which begot this appeal are as follows:- The Plaintiff until 21st September 2001 was a typist at Akim Oda District Office of the Defendant institution which is headed by a District Director.

The case of the Plaintiff is that while at CHRAJ Akim Swedru as a worker, she went to His Honour Judge Koomson, the then Circuit Court Judge at Akim Swedru. She went to the judge to plead with him to collect an amount of money which her brother paid for a car he bought since it was not a good car. When she went she did not offer any bribe to the judge.

She was put on interdiction and later a Committee was formed to go into the matter concerning His Honour Judge Koomson. She was not asked to confront the judge.

On allegation of insubordination, habitual late coming to work etc, Plaintiff denied all this. Plaintiff said the committee’s work, her dismissal and all the procedure adopted to investigate her were wrong.

In reaction, the Defendant completely denied the claim of the Plaintiff. The Defendant alleged that the Plaintiff as a worker of its institution had been flouting the basic code of conduct with persistence. A number of queries were given to the Plaintiff at different times, but she persisted in flouting the code. Among the allegations of impropriety was an attempt by the Plaintiff to influence the then Circuit Court Judge, His Honour Judge Koomson with financial inducement in a case before the judge. The judge in open court expressed his disapproval of Plaintiff’s conduct. This brought embarrassment to the Defendant institution as alleged by Defendant.

Apart from the above, it was alleged that the Plaintiff had turned herself into a habitual late-comer to work. Inspite of series of queries to her to come to work on time, Plaintiff persisted. And despite the fact that Plaintiff’s house was few hundred metres from the District Office of the Defendant, the Plaintiff failed to report to work on time.

Further, the Defendant was alleged to be in the habit of fighting and quarelling with one staff after another. This is accompanied by invoking of supernatural forces against her perceived enemies at the office.

The Plaintiff also allegedly refused to obey simple instructions from her superior, the District Director. As a result of these series of insubordination, a disciplinary committee was set up by the Eastern Regional Director of the Defendant. This was after the Plaintiff was interdicted. By a letter dated 21st September, 2001 and signed by the Commissioner himself for the Defendant, the Plaintiff was dismissed based on the report and finding of the disciplinary committee.

Dissatisfied with the dismissal, the Plaintiff instituted action at the High Court, Koforidua. She prayed the court for the following reliefs as contained in the writ of summons:

1. A declaration that the Committee set up by the Eastern Regional Director of the Commission on Human Rights and Administrative Justice to investigate the so-called series of allegation levelled against the Plaintiff herein was biased in its work and the investigations report submitted therefrom did not give the correct picture of those perceived allegations upon which her dismissal was founded.

2. A declaration that the Committee set up by the Eastern Regional Director of the Commission on Human Rights and Administrative Justice to investigate the alleged series of allegations culminating in the dismissal of the Plaintiff by the Commission on the 21st September, 2001, acted in breach of the rules of natural justice.

3. A declaration that the Commission on Human Rights and Administrative Justice exceeded its jurisdiction in purporting to set up a Committee to conduct investigations in matters which were outside the scope and purview of the code of conduct upon which the Plaintiff’s dismissal could be laid.

4. A declaration that in as much as the Plaintiff was called upon to defend herself on the allegations the initial investigations of which she was not given a hearing, the purported dismissal of the Plaintiff on 21st September, 2001, based, as it did, the investigation report of the said committee set up by the Eastern Regional Director of the Commission on Human Rights and Administrative Justice was wrongful.

5. An order of the Honourable Court directing the Commission to produce before the court for the purpose of its cancelation the investigations report submitted by the said Committee set up by the Eastern Regional Director of the Commission on Human Rights and Administrative Justice.

6. An order of the court setting aside the said dismissal of the Plaintiff as a staff of the Commission on Human Rights and Administrative Justice.

7. An order of the court directing the Commission on Human Rights and Administrative Justice to reinstate the Plaintiff as a staff of the Commission with all necessary salaries, and emoluments and benefits shall have accrued to her as a member of staff or in the alternative.

8. Damages for wrongful dismissal.

It is against the above judgment that the Plaintiff launched her appeal to this forum to reverse the verdict of the trial judge.

The following are the grounds of appeal:

1. The judgment is against the weight of evidence.

2. That the combined effect of articles 281(a) – (e), 230, 234 and 287 of the 1992 Constitution and the Commission on Human Rights and Administrative Justice Act 1993 (Act 456), Complaint Procedure Regulations 1994 C.I. 7 as well as Article 218 (a), (b), (c), (d), (e) is that there should be an identifiable complainant before the Defendant herein can investigate under Article 218 (a), (b), (c), (d), (e) in this regard therefore the purported investigation undertaken by the Defendant on the allegation that the Plaintiff had attempted to bribe the then Circuit Judge, His Honour Judge Koomson to favour a party in the matter before the court was without jurisdiction and therefore unlawful and all consequent acts of the Defendant leading to the dismissal of the Plaintiff are equally improper.

3. That the dismissal of the Plaintiff for earlier malfeasances for which she had been queried and reprimanded was equally wrongful because they were precipitated by the equally wrongful act on the part of the Defendant in undertaking an investigation against the Plaintiff where there was no identifiable complainant.

4. The learned trial judge gave no sufficient or adequate consideration to the case for the Defendant.

5. The judgment is unreasonable and cannot be supported having regard to the evidence on record.

6. Additional ground will be filed when the record of proceedings is ready.

Although the Plaintiff said she would file additional grounds of appeal when the record of appeal is ready, no additional grounds of appeal was filed.

In an appeal such as the instant one where the losing party charges that the judgment is against the weight of evidence, it means that there are pieces of evidence on the record which were either overlooked or not adequately considered. And that if these pieces of evidence were carefully considered, the verdict would have gone in her favour.

As Sophia Akuffo, JSC puts it in the case of Tuakwa v. Bosom (2001-2002) SCGLR 61 headnote, referred to by Defendant’s counsel in his address.

An appeal is by way of re-hearing, particularly where the Appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case, although it is not the function of the Appellant court to evaluate the veracity or otherwise of any witness, it is incumbent upon an Appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonable or amply supported by the evidence.

Although it is incumbent on the appellate court to re-evaluate the entire evidence, it is equally incumbent on the Appellant on whom the onus lies to demonstrate from the judgment that the judgment is indeed against the weight of evidence.

In presentation of his argument on the grounds of the appeal, the Plaintiff’s counsel shied away from demonstrating from the evidence on record which aspects of the evidence were in favour of the Plaintiff, but which were overlooked by the trial court leading to judgment being given against the Plaintiff in favour of the Defendant.

Although in arguing the appeal, the Plaintiff’s counsel seems to abandon grounds 1 and 5, these two grounds which are similar will be considered together.

Ground one is that the judgment is against the weight of evidence and ground five is that the judgment is unreasonable and cannot be supported having regard to the evidence on record.

Although the Plaintiff’s counsel failed to point out from the Record that the judgment was unreasonable, the Defendant’s counsel in his address contended that “the findings of fact made by the trial court were amply supported by the evidence on record”.

We cannot but agree with Defendant’s counsel that both the oral evidence of the Defendant and its witnesses and the documents they have tendered are solid enough to confirm the findings of the trial court.

For instance one of the complaints of the Plaintiff as confirmed by the Record of the Appeal is that Plaintiff was accused of attempting to bribe the then Circuit Court judge at Akim Swedru. The explanation of the Plaintiff seems to be far from convincing.

Plaintiff admitted going to see the judge in the privacy of his chambers “to plead with him to collect the money which my brother paid for a car he bought since it was not a good car”. That “brother” of the Plaintiff turned out to be a co-tenant.

Whether the Plaintiff was her brother or a co-tenant, the going of Plaintiff to the judge was an unholy attempt to impress upon him to bend justice her own way. This was the conduct of Plaintiff which was condemned by the trial Judge in open court.

The fact that the judge expressed his disapproval in open court of Plaintiff’s conduct and refused to sit on the case shows how serious the judge considered her behaviour.

In his judgment, the trial court found as a fact that “it is a wrong for the Plaintiff to approach a Circuit Court Judge to solicit his assistance to correct (sic) money being claim (sic) by a relation for him. This conduct is unethical and indeed an embarrassment to her employers”.

Having proved that the Plaintiff did visit the Circuit Court Judge and same was admitted by her under cross-examination, the onus of proof now shifts to the Plaintiff to demonstrate on what basis she had to approach the judge to influence him to decide a case in her purported brother’s favour. Plaintiff failed to lead the requisite evidence in that direction.

The Record of Appeal also shows that there are several instances where Plaintiff was queried for various aspects of insubordination, quarelling in the office with colleague members of staff and habitually coming to court late. As a result, the Plaintiff was queried a number of times such as Exhibit 1 which is Plaintiff’s reply to a query of 11th April 2000. In Exhibit 3 is a query from the District Director for the Plaintiffs failure to regularly come to work. There are several other exhibits on the record which confirm that for several years, the Plaintiff has been queried for failing to come to work, or coming late to work, quarelling with his colleague employees as aforementioned. For example no self-respecting worker and duty-conscious employee in a very sensitive organization like the Defendant would break a fresh egg in the office of her director as the Plaintiff did in this instant case to the shock of the entire staff.

The Record of Appeal shows that the Plaintiff on whom the onus lies to lead the requisite evidence that his dismissal was wrongful, failed to discharge the onus of proof on her.

Indeed the law is clear that in a claim for wrongful dismissal, the Plaintiff is enjoined to lead credible evidence to prove that his employer had breached the provisions of a collective bargaining agreement or a code of conduct which exists between the employer and the employee. Or that the dismissal is in breach of a statutory provision. It is not enough for the Plaintiff to repeat parrot-fashion the statement of claim and leave the claim to the court.

In the case of Senkyire v. Abosso Goldfields Ltd. (2008) 15 MLRG 203 SC it was thus held:

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 these terms. The terms under which Defendants employ Plaintiff cover provisions for termination of employment as well as dismissal.

The Court of Appeal came to the same conclusion in the case of Yeboah and Others v. Barclays Bank (Gh) Ltd. (2010) 27 MLRG as follows:-

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.

The Plaintiff in the instant case failed to prove her terms of contract or refer to any single statutory provision which has been breached by Defendant to warrant a reverse of the trial High Court’s finding that Plaintiff’s dismissal be upheld. What this means is that grounds 1 and 5 of the appeal is hereby dismissed.

We now turn to grounds 2 and 3 of the appeal which will be taken together. The substance of these two grounds which are materially the same is that the initial and subsequent investigations conducted by the Defendant into the conduct of the Plaintiff was improper, wrong and void because there was no identifiable complainant. The said investigations was therefore a breach of several articles of the Constitution and sections of the enabling Act establishing the Defendant institution i.e. Act 456.

Arguing these two grounds of the appeal together, the Plaintiff’s counsel first quoted article 287 of the 1992 Constitution thus:

1. An allegation that a public officer has contravened or has not complied with a provision of this Chapter shall be made to the Commissioner for Human Rights and Administrative Justice, and in the case of the Commissioner for Human Rights and Administrative Justice, to the Chief Justice, who shall, unless the person concerned makes written admission of contravention or no-compliance, cause the matter to be investigated.

2. The Commissioner for Human Rights and Administrative Justice or the Chief Justice as the case may be, may take such action that he considers appropriate in respect of the results of the investigation or the admission.

Plaintiff’s counsel submitted that the above provisions of Article 287 were not complied with in the case of the Plaintiff/Appellant.

Counsel further quoted Article 230 of the Constitution thus:

Subject to the provisions of this Constitution and to any Act of Parliament made under this chapter, the Commission shall make by constitutional instrument, Regulations regarding the manner and procedure for bringing complaints before it and the investigation of such complaints.

Counsel finally contended that the dismissal of the Plaintiff/Appellant was a violation of Article 218 of the 1992 Constitution because there was no identifiable complainant.

Reacting to the argument of the Plaintiff that there was no identifiable complainant and that the dismissal of the Plaintiff was wrong, same was dismissed by the Defendant’s counsel.

Counsel for Defendant submitted that it is not true that by the combined effects of articles 281, 230, 234 and 287 of the 1992 Constitution, the Commission on Human Rights and Administrative Act, 1993 (Act 456) and the Complaint Procedure Regulation C.I. 7, as well as article 218 (a) (b) (c) (d) (e), there should be an identifiable complainant without which the Defendant could not investigate the Plaintiff for attempting to bribe the Circuit Court Judge and other aspects of her conduct.

Learned Defendant’s counsel contended that the Plaintiff’s counsel misconstrued the procedure applicable to the investigation of the Plaintiff’s misconduct. He contended that the procedure applicable to a staff of the Defendant is CHRAJ Policy and Code of Discipline, now Staff Condition of Service specifically regulation 18 of the Condition of Service.

Counsel further contended that the investigation and dismissal of the Plaintiff as a staff member, cannot involve a complaint as was the case of The Republic v. High Court, Accra; Ex parte CHRAJ (Richard Anane Interested Party) (2007-2008) SCGLR 213.

We entirely agree with the learned Defendant’s counsel that the Ex parte CHRAJ (supra) is not applicable to this instant appeal. This is because the persons whom CHRAJ is mandated to investigate do not include the Plaintiff, who, for want of a better word, is a lowly typist in the District Office of the Defendant institution.

Chapter 23 of the Constitution captioned “Commissions of Enquiry” under which Article 278 is, makes for appointment of commission of enquiry. Article 281 makes provision for Enquiry Procedure; Article 230 provides for the Defendant’s promulgation by constitutional instrument, and regulations regarding the manner and procedure for bringing complaints before it. Investigation of such complaints, do not by any stretch of the imagination apply to the case against the Plaintiff in this instant case.

Again, article 234 which provides for the independence of the National Commission for Civic Education and article 287 under Code of Conduct for Public Officers do not contemplate an internal disciplinary procedure of a very junior worker in the position of a typist in District Office of Defendant such as the Plaintiff in this instant case.

In the same vein article 218(a) (b) (c) (d) and (e) of the Constitution like the other articles under which the Plaintiff’s Counsel canvassed his argument in this appeal, have no moment at all. They are totally irrelevant. This is because these articles apply to holders of public office. It does not include any worker on government pay roll such as the Plaintiff.

It is clear that the Plaintiff’s counsel fails to make the dichotomy between the statutory and constitutional roles of the Defendant as a public institution in its investigation and adjudication roles, vis a vis its own internal disciplinary procedure used exclusively for its staff in accordance with its Code of Conduct aforesaid.

Indeed that the argument of the learned Plaintiff’s counsel that the Defendant ought to have received a formal complaint reminiscent of the scenario in the case of Ex parte CHRAJ (supra) also shows in the interpretation of “public officer” under Article 288. Under this article, “public officer” is defined as “one who holds public office”. Under Article 295 of the Constitution “public office” is defined as “an office the emoluments attached to which are paid directly from the Consolidated Fund or out of monies provided by Parliament and an office in a public corporation established entirely out of public funds or provided by Parliament”.

That articles 218, 278, 234, 231, 230 etc. do not apply to the Plaintiff is seen in how “public service” is defined in the Constitution under Article 295 as “includes service in any civil office of Government”. Thus the Plaintiff can be labeled as a civil servant and not as a public officer.

The Oxford Dictionary of Law 6th Edition, 2006 at page 427 defines a “public officer” to include such category of persons as government ministers, counselors, local government officers, judges and magistrates.

Indeed such officers in Ghana as ministers and their deputies, heads of public boards and corporations, heads of such constitutional bodies as CHRAJ and CHRAJ’s Commissioner and his deputies, the Electoral Commissioner and her deputies, etc. are public office holders within the contemplation of the article. Article 286(5) spells out categories of some of the public office holders who are mandated by the Constitution to declare their assets.

In the instant appeal, we have noted as aforementioned, that the Plaintiff’s counsel failed to demonstrate with convincing argument, in what ways his client’s dismissal falls within the category of public office holders to warrant a complaint to be formerly launched by an identifiable person before the Defendant investigate her case.

At page 143 of the Record of Appeal is a detailed breakdown of the disciplinary procedure to be followed as contained in the CHRAJ Policy and Code of Discipline under which the Plaintiff was dismissed. This was admitted Exhibit 14.

As aforementioned, the Plaintiff is not able to demonstrate at the court below and in her argument in this appeal, in what way there was a breach of the disciplinary procedure. There was sufficient evidence on record that series of queries were written to the Plaintiff. Then her explanations were examined. Because of the persistence and the Plaintiff’s commission and omission one after the other, the Regional Director of the Eastern Region branch of Defendant, set up the committee which went into the matter. After recommendation was made to have the Plaintiff dismissed, same was sent to the Commissioner himself who signed the dismissal letter.

Since the Plaintiff failed to demonstrate what provision of the Code of Conduct of her employees was breached to her disadvantage, the Plaintiff should hold forth her peace. We say so because the Defendant has backed its decision to dismiss the Plaintiff with documentary and oral evidence which speak so loud and clear that the trial judge was right to dismiss the Plaintiff’s case in its entirety.

There was also no evidence marshalled by Plaintiff that the committee which was set up to investigate the conduct of the Plaintiff worked outside the scope and purview of the code of conduct upon which the Plaintiff’s dismissal was based, as alleged by the Plaintiff in her grounds of appeal. Nor was there any breach of the rules of natural justice as alleged by the Plaintiff.

We have looked at the appeal of the Plaintiff and we have noticed that there is nothing material about the argument of the Plaintiff. Indeed, the arguments of the appeal seem with respect non-committal in the sense that the argument seems not to touch the fundamental issues raised in the grounds of appeal, but matters which are with due deference, irrelevant. In the result, the appeal is hereby dismissed.

SGD

L. L. MENSAH J.A.

(JUSCTICE OF THE COURT OF APPEAL)

SGD

DENNIS DOMINIC ADJEI J.A. (PRESIDING)

(JUSCTICE OF THE COURT OF APPEAL)

SGD

CECILIA H. SOWAH J.A.

(JUSCTICE OF THE COURT OF APPEAL)