SAM WOOD LTD. V. LUKE BEYUO DERY

JUDGMENT

F.G. KORBIEH, J.A.

Until the 29/6/2007 the plaintiff/respondent herein was the Marketing Manager and Head of the Marketing Department of the defendant/appellant company which is Limited Liability Company. The company is registered on the Ghana Stock Exchange as a public company whose shares are traded at the Stock Exchange. On the date first mentioned above he received a letter of even date signed by the Executive Chairman of the defendant company informing him that his contract of employment with the company had been terminated. Obviously unhappy with that letter the plaintiff/respondent wrote a protest letter to the Board of Directors of the company petitioning the board against the termination of his appointment. The board, in response to this petition, rather confirmed the decision of the Executive Chairman. Subsequently there was some correspondence between the lawyers of the two parties but that failed to resolve the impasse. The plaintiff/respondent therefore sued the company alleging wrongful dismissal. Some of the averments made by him in his writ of summons were as follows: that since his appointment on the 13/5/2003, he had carried out his work satisfactorily without reprimand or query; that he had continually offered useful suggestions towards the enhancement of the objectives of the company but his suggestions had not been heeded; that the Executive Chairman had, by a letter dated 26/6/2007, blamed him for the poor sales realized by the company and given him three months within which to achieve the sales targets expected by the company; that without any basis the Executive Chairman wrote the letter terminating his appointment which amounted to wrongful dismissal and that he was instructed to vacate his official residence but he had not done so. He had prayed for the following reliefs from the High Court, Accra:

“a. A declaration that the purported termination of the Plaintiff’s appointment, subsequent to the blame that he was responsible for the poor sales realized by the Company amounted to wrongful dismissal.

b. General Damages for wrongful dismissal.

c. Declaration that the Defendant’s directive that he should vacate from the official residence is unjustified, in the circumstances.

d. Perpetual injunction restraining the Defendants, Agents, Servants, Workmen, Assigns, Privies from interfering with Plaintiff’s use of the official premises until otherwise directed by the court.

e. An order for the Plaintiff’s re-instatement.

f. An order for the payment of salaries, allowances, benefits and remuneration due him time as the time of judgment.

g. Any other order as to this court may deem fit.” Sic

In response to the plaintiff’s averments, the defendant company had denied that the termination of the plaintiff’s appointment amounted to wrongful dismissal. The defendant further averred that the termination of the appointment had been done in accordance with the terms and conditions of service regulating the appointment of the plaintiff. The defendant admitted that the Executive Chairman had written a letter to the plaintiff blaming him for poor sales and giving the plaintiff three months within which to achieve the sales target that the company expected. The defendant however averred that the Board of Directors found the plaintiff’s letter addressed to it in reaction to his letter of termination of appointment “antagonistic, abusive, vitriolic and couched in intemperate language setting the Plaintiff in direct confrontation with the Chief Executive” for which reason it decided “to confirm the decision to terminate the Plaintiff’s appointment” and further that “the decision of the Board of Directors was made with due regard to the terms and conditions of the Plaintiff’s appointment”. The defendant also averred that since it had offered all benefits due the plaintiff to him, he had lost nothing and hence his action in court was unwarranted and should be dismissed with punitive costs. The defendant then counterclaimed for (a) and order of ejectment of the plaintiff from the official residence, (b) an order that any costs incurred by the defendant in hiring alternative accommodation for the plaintiff’s replacement in the job should be deducted from the plaintiff’s terminal benefits and (c) costs.

At the close of pleadings eight issues had been set down for determination but they all bordered on the issue whether or not the termination of the plaintiff’s employment in the circumstances amounted to wrongful dismissal. During the trial the plaintiff testified and called one witness. The defendant testified through the Executive Chairman (as its representative) and one other person. I shall revert to details of their respective evidence as and when necessary. At the end of the trial the learned trial judge gave judgment in favour of the plaintiff and ordered that the plaintiff be paid his salary (as adjusted) and other emoluments calculated from the date of the unlawful termination of his appointment (29/6/2007) till 29/6/2009. The court also ordered that the plaintiff be paid his share of the provident fund and awarded costs of GH¢3.000.00 to be paid to the plaintiff. It is this judgment that the defendant has appealed against on the following grounds:

(1) The judgment was against the weight of the evidence as adduced before the trial court.

(2) The judge erred in holding that the purported termination by the defendant-company was not only unfair but wrongful.

(3) The judge erred in holding that the plaintiff is entitled to his salary which shall be the adjusted salary and other emoluments from 29/6/2007, the day of his unlawful termination till 29/6/2009.

(4) The judge erred in accepting the report on the computation of award due to the plaintiff dated 8/6/2009.

(5) Further grounds to be filed on receipt of the judgment and record of appeal.

The relief being sought by the defendant in this Court is that the judgment of the trial High Court affecting the defendant/appellant dated 29/3/2011 and the report on the computation of award due the plaintiff dated 8/6/2011 be “reserved”. I suppose the defendant meant that the judgment should be reversed. Let me say for the record that no further or additional grounds were filed and learned counsel for the appellant therefore argued only grounds (1) to (4) both inclusive.

In arguing the appeal counsel first argued ground (2) which complains that the judge erred in holding that the purported termination by the defendant-company was not only unfair but wrongful. I shall however treat this ground alongside ground (1) which says that the judgment was against the weight of the evidence as adduced before the trial court. I have taken this approach because it is obvious that whether the termination of the plaintiff’s appointment was wrongful or not depends on the evidence that was adduced at the trial. Taking that approach will also enable me to review the whole of the evidence adduced at the trial which is necessary for determining the issue of the wrongfulness or otherwise of the termination of the plaintiff’s appointment. This is the requirement of the law. It is provided in Rule 8(1) of the Court of Appeal Rules, 1997 (C.I. 19) that an appeal shall be by way of re-hearing. Several decided cases of the Supreme Court have also held that it is incumbent on the appellate court, in a civil case, where a ground of appeal is the omnibus ground that the judgment is against the weight of the evidence, to analyze 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 the preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence. (See cases such as Djin v. Musa Baako [2007-2008] 1 SCGLR 686; Bonney v. Bonney [1992-93] Part 2 GBR 779, Chou Sen Lin v. Tonado Enterprises Ltd. [2007-2008] SCGLR 135 or (2008) 13 MLRG 197 and Tuakwa v. Bosom [2001-2002] SCGLR 61.)

The combined effect of the arguments of counsel for the appellants on these two grounds may be summarized as follows: the defendant’s conditions of service for its senior staff, such as the plaintiff, had provisions for termination of appointment (under which the employee was entitled to receive all their benefits and one month’s notice or one month’s salary in lieu of notice) and for dismissal which was essentially a disciplinary action since it fell under “Discipline” (under which an employee could be dismissed for just and reasonable cause involving dishonesty, fraud, willful refusal to obey legitimate and reasonable instructions and proven gross misconduct).

It is counsel’s contention the defendant/appellant had the right to choose either of these two methods to bring to an end an employee’s contract of employment and that the defendant/appellant could not be compelled to use one as against the other. Counsel therefore contended that in choosing to use the termination of appointment method the defendant had severed its employment relationship without having to assign any reasons and that the law permitted the act.

Counsel further contended that the argument by the plaintiff that his employment had been unfairly terminated was not borne out by any evidence led by the plaintiff. Counsel then referred to section 64(1) of the Labour Act, 2003 (Act 651) which provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission and concluded that since the plaintiff never adduced any evidence that he had brought any complaint before the Labour Commission, the trial Court was wrong to have found that the termination of the defendant’s employment was unfair. Counsel also argued that the trial judge erred in holding that the termination of the plaintiff’s appointment was unfair because the concept of “unfair termination” can only be found in Act 651 and so without the plaintiff resorting to the procedure prescribed by Act 651, it could not be said that the termination of the plaintiff’s appointment was unfair. He referred to the case of Opare Yeboah and 90 Others v. Barclays Bank Ltd. [2008] 2 GMJ 52 and contended that Ofoe, J.A. had held in that case that where a collective agreement or contract of employment provided for an amicable settlement through negotiations a party was bound to resort to the procedure first before going to court. He therefore concluded that since the plaintiff had failed to attempt an amicable settlement, it was wrong for the trial court to hold that his appointment had been unfairly terminated. Lastly he argued that the trial court had reached its conclusion that the termination of the plaintiff’s appointment was not only unfair but wrongful without making any reference to conditions of service governing the plaintiff’s employment.

Learned counsel for the plaintiff/respondent responded to the submissions in relation to ground (2) first. His arguments may be summarized as follows: he referred to the evidence of the plaintiff pertaining to the work the plaintiff had being doing for the defendant company and argued in that in the light of that evidence it was unfair for the Executive Chairman to have singled out the plaintiff for blame for the poor performance of the company. He also made the point that it had been agreed at a board meeting that no one individual should be blamed for the dwindling performance of the company. He also referred to evidence that showed that indeed the company had performed better from year to year after the plaintiff became the Marketing Manager. He therefore argued that the termination of the plaintiff’s employment based on the allegation of poor performance on his part was wrongful. He referred to sections 62, 63 and 15 of Act 651 and contended that the law provides for situations when a worker’s employment may be terminated fairly; since the plaintiff’s situation did not fit into any of those situations, then the termination was unfair and therefore unlawful. He argued further that since the Board did not give the plaintiff any hearing before confirming the termination of his appointment then the termination was unlawful. He referred to the case of Aboagye v. Ghana Commercial Bank Ltd. [2001-2002] SCGLR 797 (not 79 as indicated by counsel) as authority for his proposition that the offending conduct of a worker must be proven under section 62(b) of Act 651 before the worker’s employment is terminated. He dismissed the contention of counsel for the appellant that a worker’s first point of call for grievance resolution is the Labour Commission because the provision in section 64(1) of Act 651 uses the permissive “may” and hence the plaintiff was not bound to go to the Labour Commission first before seeking redress in court. He therefore urged this Court not to disturb the decision of the trial court.

I will now proceed to examine the issues raised under these grounds and the arguments of the two sides with a view to determining whether they are the correct or proper exposition of the law as they apply to the facts of the case on hand. The first such issue is whether or not the correct procedure was used in terminating the employment of the plaintiff. There is no gainsaying that under the provisions of the conditions of service for senior staff of the defendant company, an employee’s appointment can be terminated on the condition that the employee is given one month’s notice or is paid one month’s salary in lieu of notice. (See article 18.5 of exhibit 5.) It is this provision that the defendant has based part of its case and argument on. It is however the plaintiff’s contention that his employment was wrongfully terminated because it amounted to disciplinary action taken against him without recourse to article 15 which spells out the procedure for disciplinary action. What this means is that whereas the plaintiff is relying on and using article 15 of the conditions of service for senior staff, the defendant’s case is grounded on article 18 of the same conditions of service. What I have deduced from the argument of the plaintiff and his lawyer is this: the letter (exhibit B) that the Executive Chairman wrote to the plaintiff actually indicted the plaintiff as a poor performer. This in effect meant that the plaintiff was regarded as inefficient and so disciplinary action should have been taken against him under article 15.1 of exhibit 5. Indeed the plaintiff was given three months within which to prove that he could improve on his performance. Even though no sanction was mentioned in the appraisal letter (exhibit B) it was clear that if within three months the plaintiff failed to improve on his performance, things would not remain the same. But within three days of writing exhibit B, the Executive Chairman wrote exhibit C terminating the appointment of the plaintiff. Not only that, the letter of termination of employment linked the termination to the alleged poor performance of the plaintiff. Besides, the wording of the letter seemed to suggest that the plaintiff had refused to “obey legitimate and reasonable instructions” as envisaged under article 15.3 of exhibit 5.

The opening statement of the letter says it all: “Further to my letter to you regarding your poor performance and your decision to reserve your comments until the next appraisal (i.e. in October 2007) I write to inform you that I have now decided to terminate your appointment.” It was therefore reasonable for the plaintiff to conclude that his employment was terminated due to the allegation that he had under-performed and/or decided to reserve his comments until the next appraisal. In either or both cases, the prescribed procedure under exhibit 5 was that disciplinary action should have been taken against him in accordance with the provisions of article 15 thereof. In other words, the contents of exhibits B and those C constituted one res gestae or one transaction and were tantamount to initiating disciplinary proceedings against the plaintiff since in effect the plaintiff’s employment was terminated over the allegation that he was inefficient and/or that he had refused to obey lawful instructions by failing to make any comments as required by the letter from the Executive Chairman. This is certainly a reasonable meaning to give to the effect of the combined contents of exhibits B and C. This is a more plausible explanation than the defendant’s version that the termination was made under article 18 where no reason(s) need to be given for terminating an employee’s appointment. That being the case, the plaintiff’s appointment could only have been terminated in line with the provisions of article 15 of exhibit 5. The argument by counsel for the defendant that the defendant had an option to choose whether to end the plaintiff’s employment by termination or dismissal is a valid one at the theoretical level. But given the facts of the case, the defendant had adopted a procedure that limited it to only the option of going through the disciplinary procedure process. If the Executive Chairman had simply written to terminate the plaintiff’s appointment without trying to assign any reasons for it, he would have come under article 18.5 and would therefore have satisfied the terms of the conditions of service for senior staff. But as said earlier, the Executive Chairman tried to justify his action by giving the reasons that the plaintiff’s appointment was being terminated on account of poor performance (which simply means that the plaintiff was thought to be inefficient) and/or that the plaintiff had failed to give his comments (which simply means that the plaintiff had failed to obey lawful instructions). In either case, disciplinary action was being taken and therefore, in accordance with article 15, disciplinary proceedings had to be instituted. In other words, article 15. 6 had to be complied with and the plaintiff given a hearing by Management. Indeed on a true and proper interpretation of the letter from the Board of Directors to the plaintiff confirming the purported termination of the plaintiff’s appointment, the letter terminating the plaintiff’s appointment did not end the matter even though the board had purported to confirm the termination. There is a paragraph in that letter (exhibit E) which indicated that the board might still need to contact the plaintiff in connection with the plaintiff’s own allegations against the chairman. The implication is that the plaintiff’s case clearly came under article 15, and not article 18, of exhibit 5. Thus the failure of the defendant to adhere to the provision in article 15 of the conditions of service makes the termination of the plaintiff’s appointment wrongful. If the board had given a hearing to the plaintiff, the scenario would most probably have looked like the scenario in court when the Executive Chairman tried to justify his allegation that the plaintiff was a poor performer. The evidence on record amply supports the view that the Executive Chairman failed to prove that the termination was justified on grounds of poor performance. As earlier said in this judgment, part of the reason given by the Executive Chairman in his letter of termination was that the performance of the plaintiff was poor. But one has to make an objective assessment of the Executive Chairman’s assertion that the plaintiff’s performance was really poor. This is what the board was supposed to have done if the correct procedure had been followed.

The plaintiff’s evidence in court was that when he was the Marketing Manager of the company the company achieved sales values of 1.5 billion cedis in 2003, 1.7 billion cedis in 2004 and 3.5 billion cedis in 2005. In cross-examination he said the sales figure for January to May, 2007 was 691 million cedis but he could not remember the figure for 2006. He was also asked why he failed to mention the sales targets for the periods mentioned by him and his answer was that there were no fixed figures, hence his difficulty in mentioning the sales target figures. This appeared to have satisfied counsel for the defendant and so he moved on to something else in his cross-examination. In all however the impression given by the plaintiff that the company grew from year to year whilst he was the Marketing Manager was not eroded through cross-examination. P.W. 1 (John McCarthy), who is an accountant by profession and used to be head of Finance and Administration of the defendant company at the material time, corroborated the evidence of the plaintiff that the company saw a marked increase in sales turn-over during the period the plaintiff was the Marketing Manager. In his evidence, the Executive Chairman did not point to any specific thing that indicated that the plaintiff’s performance was lower than expected. And he did not seriously contest the figures given by the plaintiff and P.W. 1 in support of their assertion that the company grew from year to year. I therefore find as a fact (as did the trial court) that an objective assessment of the defendant’s claim that the plaintiff had performed poorly is not borne out by the evidence on the record. In any case, there is evidence on record that it was agreed that no one person should be blamed for the misfortunes of the defendant company. That being the case, I hold that there was no justification in defendant’s allegation that the plaintiff had performed poorly.

It was also contended by counsel for the defendant that under section 64(1) of Act 651 the plaintiff should have taken his case to the Labour Commission, rather than resort to court action. As rightly answered by his learned friend, that argument is baseless. As pointed out by counsel for the plaintiff the use of the permissive “may” in the provision makes it very clear that resorting to the Labour Commission was only an option that the plaintiff could use and it was not a condition precedent to going to court. Counsel for the defendant tried to press into service for the benefit of the case of his client the case of Bani v. Maersk Ghana Ltd. [2011] 34 G.M.J. 65 where Dr. Date-Bah, JSC said that section 64 of Act 651 was meant for the Labour Commission and not the courts and that therefore the concept of “unfair termination” was inapplicable in the courts. But the learned justice of the Supreme Court never said anywhere that going to the Labour Commission was a condition precedent to going to court. In any case, the facts of the case in Bani v. Maersk Ghana Ltd. (supra) are not the same as the facts in this case. In that case the plaintiff/appellant/appellant had argued that the termination of his employment was unfair under sections 63 and 64 of Act 651. It was this argument that Dr. Date-Bah responded to when he stated the concept of unfair termination was inapplicable in the courts. In the case on hand, the plaintiff sued for wrongful dismissal which is obviously a common law issue and cognizable by the courts. It was the trial judge that imported the concept of unfair termination under Act 651 into his judgment. But he did not just base his whole judgment on that concept alone. He went through the evidence and found that the termination amounted to wrongful dismissal. Thus his statement that the “purported termination by the defendant is not only unfair, but wrongful.” But even if the trial judge had wrongly attributed his decision to “unfair termination” alone, there is abundant evidence on record that indeed the termination amounted to wrongful dismissal. This Court could therefore set aside the wrong reason given by the trial court and assign the right reasons for upholding the decision. This is because an appeal is by way of re-hearing. An appellate court can uphold the right decision given for the wrong reasons provided the appellate court itself assigns the right reasons for arriving at its decision. In furtherance of that fact, I can fall back on section 19 of Act 651 which provides as follows:

“The provisions in sections 15, 16, 17 and 18 are not applicable where in a collective agreement there are express provisions with respect to the terms and conditions for termination of the contract of employment which are more beneficial to the worker.”

I believe that the term “collective agreement” here is the equivalent of the conditions of senior staff in the defendant company (tendered in evidence as exhibit 5). As I have already said elsewhere, under exhibit 5 incompetence or inefficiency is a ground for terminating an employee’s appointment but it puts the matter within the context of disciplinary action. It is provided in article 15.6 that a member of staff who is a subject of disciplinary action shall be given a hearing by management. After the plaintiff received the letter of termination from the Executive Chairman (which I have demonstrated was disciplinary in nature), he wrote to the next higher authority of the company, i.e. the Board of Directors asking to be given a hearing. The Board refused to give the plaintiff a hearing and proceeded to confirm the chairman’s letter. The fact that the plaintiff’s letter may have been couched in foul, ill-tempered and abusive language did not derogate from the fact that he was exercising his right under article 15.6 to be given a hearing. So much has been said about the plaintiff calling the Executive Chairman a “tyrant”. Perhaps if the plaintiff had been afforded the opportunity to explain himself, the explanation may have taken some of the sting out of the word. The failure of the board to give the plaintiff any modicum of hearing was in clear violation of the conditions of service of the plaintiff. I therefore agree with the contention of the plaintiff that it was wrongful for the defendant to terminate his employment without recourse to any disciplinary proceedings against the plaintiff. In the case of Aboagye v. Ghana Commercial Bank Ltd. (supra) the Supreme Court held that since the disciplinary authorities of the defendant bank failed to apply the rules of natural justice, there was no fair trial and that was fatal to their decision to dismiss the plaintiff from the services of the bank. As for the case of Opare Yeboah and 90 Others v. Barclays Bank Ltd. (supra) I do not see its relevance to this case. True enough, Ofoe, J.A. extolled the benefits of the Labour Act for good industrial relations in Ghana but he was speaking obiter dictum. In any case, I do not think that he meant that the jurisdiction of the courts had been ousted because of the provision in section 64 of Act 651. Grounds (1) and (2) thus fail and hereby dismissed.

I will now go on to consider ground (3) which complains that the judge erred in holding that the plaintiff was entitled to his salary which shall be the adjusted salary and other emoluments from 29/6/2007, the day of his unlawful termination till 29/6/2009. It is the argument of counsel for the defendant under this ground that since the termination of the plaintiff’s contract of employment was right in law then the trial court erred in awarding the plaintiff the adjusted salary and other emoluments. The premise of the argument is however wrong because of the finding made by both the trial and this Court that the termination of the plaintiff’s appointment amounted to wrongful dismissal. The trial court was therefore right to have awarded the plaintiff the adjusted salary and other emoluments. I fully endorse the use of the authority of Nartey Tokoli and Ors. v. Valco [1982] GLR 341 by the trial court to ground the award of the adjusted salary and other emoluments to the plaintiff. It was held in that case as follows:

The measure of damages for wrongful dismissal from employment was not to be 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 the respective dates of the de facto termination of their employment. As the termination of their employment was held to be void and of no legal effect they remained employees de jure and would therefore, be entitled to earned leave allowances, 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 plaintiffs' 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.

I will now go to the last ground (4) which is to the effect that the judge erred in accepting the report on the computation of award due to the plaintiff dated 8/6/2009. This ground of appeal is based on events that happened after the judgment had been delivered. On page 276 of the record of appeal it is therein stated that the trial court directed the parties to meet the Registrar of the trial court for the computation of what was due the plaintiff. This meeting was to be held within 21 days of the order which was itself dated 29/3/2011. The contention of the defendant therefore that the trial court did not make a specific order or orders that the parties were to meet the Registrar to have the award computed is certainly not true. Counsel’s contention is that the directive was given in the “Summary Judgment” and so did not form part of the record of the trial court. But the simple question to ask is: how did it find its way into the record of appeal? It was for counsel or the defendant to have objected to the inclusion of that document in the record of appeal during the settlement of the record. Again the defendant and or counsel could have applied to this Court to have the record remitted to the court below for rectification and for the “Summary Judgment” to be removed from the record of appeal when they received their copy of the record of appeal and realized or thought that it was not the correct record of what transpired in the court below. Having failed to do either of those things, it does not lie in their mouth to complain that certain things in the record of appeal do not validly belong to the record of appeal. And once the record shows clearly that the trial court made the order to meet the Registrar, this Court cannot but accept that there was a directive to meet the Registrar. The law is that official functions and duties are presumed to have been performed regularly until the contrary is proved. This is the principle of the regularity of official functions and duties which applies here. The court notes (on page 277 of the record of appeal) indicate that the defendant’s side had “refused” to meet the Registrar for the exercise. The trial court therefore directed the plaintiff to meet the Registrar and give him what information was needed to do the computation of what was due the plaintiff. There is however no evidence on the record that the plaintiff met the Registrar and furnished him with the information as directed by the trial court. All we have is that the trial court claims to have received the report from the Registrar which it proceeded to use. But we are not told how the report was transmitted to the trial court by the Registrar. Was it tendered in open court as an exhibit? Or was it simply given to the trial judge in chambers? In the absence of evidence that the report was properly tendered in court through official proceedings it cannot form part of the record.

From the foregoing the defendant was right to have complained that the trial court ought not to have accepted the report of the report on the computation of award due to the plaintiff dated 8/6/2009. The report is accordingly hereby expunged from the record. I would therefore uphold this ground of appeal to the extent that registrar’s report was used in computing the money due to the plaintiff.

But expunging that report from the record does not mean that the plaintiff is not left without any remedy. As has already been said, an appeal is by way of re-hearing and an appellate court is entitled to make consequential orders based on the record of appeal. The law is also that an appellate court has the power to make any orders that the court from which the appeal emanated from has. I am therefore going to re-work whatever is due the plaintiff using the evidence and information on the record. The trial court ordered that the plaintiff be paid his salary and other emoluments from the date of his purported termination (i.e. 29/6/2007) to 29/6/2009. This comes to 24 months. Going by exhibit M (as indicated by the trial court) one month’s salary amounted to GH¢532.65. 24. This was arrived at by taking the total arrears of salary for four months and dividing it by four. (See no. 3 in exhibit M) Twenty-four months multiplied by GH¢532.65 gives you GH¢12783.60. Going by exhibit M, the plaintiff was already entitled to 6,398.22 made up of one month salary for every year served, outstanding leave commuted to cash, arrears of salary and welfare dues contribution. Part of the complaint of the defendant is also that leave allowances had been included in the computation of the plaintiff’s emoluments. It was counsel’s reasoning that since the plaintiff’s employment had been terminated, the plaintiff could not earn any leave allowance after the termination of his employment. But again this argument is premised on the wrong assumption that the termination was validly done. With the finding that the plaintiff had been wrongfully dismissed, the plaintiff continued to be a “de jure” employee of the defendant and could therefore earn leave allowances and other monetary benefits until the time decided by the court to be the end of his employment with the employer. In any case, as has just been computed, any leave allowance was approved by the defendant itself as indicated in exhibit M. This thus brings the total so far to GH¢19, 181.82. The trial judge also awarded the plaintiff general damages for wrongful dismissal. That works out to GH¢3195.90 which added to the last figure gives us GH¢22,377.72. Costs were assessed by the trial court at GH¢3000.00. The two last figures added together amounts to GH¢25,377.72. This then is the total sum due the plaintiff. It is hereby ordered that this figure be substituted for the total judgment debt in the court below.

In conclusion, I think that the appeal should fail except for the revised sums of money awarded the plaintiff adding up to the total of GH¢25,377.72. The appeal is therefore dismissed subject to the substitution of our award figure for that of the trial court.

SGD

F.G. KORBIEH J.A. (PRESIDING)

JUSTICE OF THE COURT OF APPEAL

AGNES M. A. DORDZIE, JA

FACTS

I perfectly agree with my brother Korbieh JA that the termination of the plaintiff respondent’s employment by the defendant appellant was wrongful.

I however have this to say:

On the termination of the plaintiff’s employment with the defendant company, there is sufficient evidence on record proving that the defendant breached the terms of the contract of employment between the parties.

The Terms and Conditions of Service for Management and Senior Staff of the defendant company, exhibit 5 had been the agreement that guarded the relationship of the parties.

Article 15. 1 of exhibit 5 categorized circumstances under which a disciplinary action could be taken against an employee and reads: “Disciplinary action will be applied against an employee for inefficiency or misconduct, examples: willful disregard of instructions, neglect of duty, absenteeism, drunkenness, immorality and especially for breaking one of the provision of clauses 6.1 to clause 6.9 of this agreement.”

Article 15.6 reads: “A staff who is a subject of disciplinary action shall be given a hearing by management”.

On 26th of June 2007 the chief executive of the defendant company wrote to the plaintiff complaining of poor performance at his work and gave him three months to improve on his performance and prove that he could achieve his sales goals for the year.

Three days later that was 29th of June 2007 the chief executive of the defendant company wrote to the plaintiff terminating his appointment and relied on the allegation of poor performance and the plaintiff’s failure to fill appraisal forms he asked him to fill.

Aggrieved by the decision of the chief executive the plaintiff sort redress in accordance with the provisions of the Terms and Conditions of service, exhibit 5. Article 19.1 reads “In case of any grievance, the employee should as a first step take the matter up with the chief executive of the company.

9.2 If the matter is not resolved, the aggrieved employee is free to bring the case to the attention of the Board of Directors of the company through the secretary to the Board”

The plaintiff’s grievance was with the actions of the chief executive against him; it is understandable that he skipped the first step and petitioned the board of the company for redress.

The board never gave plaintiff a hearing contrary to article 5.6 of the agreement or terms and condition of service.

The board without any investigations rather confirmed the termination of appointment initiated by the chief executive.

The defendant by its actions clearly breached the audi alteram parten rule of natural justice. One of the cardinal principles of natural justice is that no one shall be condemned unheard. The plaintiff was condemned unheard.

The termination of the plaintiff’s employment with the defendant company was therefore wrongful and he is entitled to damages for wrongful termination of his employment with the defendant. The 2nd ground of appeal, that the trial judge erred in holding that the termination by the defendant company is not only fair but wrongful fails.

One of the claims of the plaintiff endorsed on his writ of summons is an order for the payment of salaries, allowances, benefits and remunerations due him as at the time of judgment. The record does not disclose any evidence adduced by the plaintiff to prove how much salary he was earning and what his allowances and benefits were.

Though it is the correct principle to say in an action of this nature where the court had found that there is a wrongful dismissal the plaintiff is entitled to his salary and emoluments, lack of evidence from the plaintiff on how much his emoluments were with his former employers poses a problem to the calculation of same.

The trial judge tried to help the situation when after delivering the judgment on 29th of March 2011 he made an order that the parties appear before the registrar for the benefits due the plaintiff to be computed. This was done and on the 8th of May 2011 the trial judge entered judgment for the plaintiff in the sum of GH¢38, 404.91. This figure is based on the report the registrar submitted to the court.

The records have it that the registrar based his calculations on materials supplied him by the plaintiff. I think it is an error to accept extrinsic evidence after the trial of this case and use same in determining award of damages.

Whatever evidence the plaintiff has on his emoluments ought to be produced in evidence at the trial and subjected to the test of cross examination.

By article 18.5 of exhibit 5 an employee whose employment is terminated is entitled to all benefits due him. In compliance with this the defendant computed all benefits due plaintiff and this is shown in exhibit E or M.

In cross examination the plaintiff was given the opportunity to challenge the correctness or otherwise of the figures but he was evasive in his answer. The following question was put to him.

Q: In exhibit E, you were to collect a cheque of 56million cedis and over as your terminal benefit, did you lose any amount by the computation in that exhibit?

A: I disagree with the whole process as the letter in exhibit E is in complete variance with my condition of service.

It is my view that figures the registrar should rely on for the computation should be figures given in evidence, and which had been tested through cross examination. If the plaintiff has evidence on what his emoluments were he never gave any evidence on that. In my view it is wrong for him to supply any figures outside the trial to the registrar unilaterally for the computation of his benefits. The trial court erred in accepting such a report and making awards based on same.

The only evidence on record on benefits due the plaintiff is what is contained in exhibit E or M. The onus lies on him as plaintiff to prove that he is entitled to more than that. He has failed to do so, he has the choice to accept what has been offered him.

Save grounds 2 and 3 of the grounds of appeal I will allow the rest of the grounds of appeal.

This Court has the jurisdiction as an appellant court to make orders that the trial court could have made but failed to do.

I therefore agree with the computations my brother has made using the figures in Exhibit E or M to arrive at the awards the plaintiff is entitled to.

SGD

AGNES M. A. DORDZIE (MRS) J.A.

JUSTICE OF THE COURT OF APPEAL

SGD

CECILIA HANZY-SOWAH (MRS.) J.A.

JUSTICE OF THE COURT OF APPEAL

COUNSEL

MR. K. O. AMPONSAH DADZIE FOR THE DEFENDANT/APPELLANT

MR. NTOW-FIANKO FOR THE PLAINTIFF/RESPONDENT