SG-SSB LIMITED V. MR CHARLES AFFRAN

JUDGMENT

AGYEMANG JA

In this appeal against the judgment of the High Court, (General Jurisdiction) Accra, delivered on the 15th of June 2016, the defendant/appellant (hereafter referred to as the appellant) prays for the judgment to be set aside.

The matters that have given rise to the instant appeal are sufficiently simple.

The plaintiff/respondent (hereafter referred to as the respondent) was an employee of the appellant. In July 2007, he held the post of Deputy Manager at the appellant’s Tema Fishing Harbour Branch. On 5th July 2007,while he was in charge of the said branch, two funds transfer request letters bearing signatures purporting to belong to authorised signatories of one of the bank’s customers: Emefs Construction Company Limited, were submitted to the respondent. It was the respondent’s case that he verified same and forwarded the requests to the bank’s central foreign transfers outfit: the International Business Centre of the bank, for its action upon the request. A few days later, the respondent was invited to the Sakumono Police Station where he was confronted with the allegation that he had failed to verify the signatures on the letters, and that the IBC which had acted on his purported verification, had transferred two sums of money: GBP 32,420 and GBP82,364 from the account of Emefs Construction which transactions turned out not to have been authorized by the said customer at all. The respondent’s alleged failure to verify the signatures was said to have led to loss of money by the bank which had had to refund the customer’s missing monies to it.

The respondent who was let out on Police inquiry bail, was invited to explain his actions before the in-house Disciplinary Committee of the appellant. After his appearance before the said committee, the appellant wrote to the respondent, terminating his employment with the appellant.

By letter exhibit H, the respondent appealed this decision and also lodged a complaint at the National Labour Commission. When both processes failed to yield the desired result, he commenced an action at the court below seeking the following reliefs:

a) A declaration that the plaintiff was not negligent or incompetent when he verified the signature on the transfer letter from Emefs Construction Company;

b) An order for reinstatement as deputy manager of the defendant bank or alternatively, payment of accumulated salary from the date of termination of appointment including all benefits that would have accrued to him if he was still in employment, leave allowance, and any other allowance to which he would have been entitled within the period;

c) Payment of general damages in the sum of GHC100,000 for wrongful and unlawful termination of his employment

d) Payment of adequate compensation for embarrassment, pain and loss that the plaintiff suffered as a result of the defendant’s actions and inaction;

e) Interest on all monies that will be adjudged to be due him from the day it became due;

f) Costs including solicitor’s fees.

At the close of the trial, the court below entered judgment for the respondent for relief (a), the alternative relief sought in relief (b), and relief (e) aforesaid.

It is against the said judgment of the court below that the present appeal has been brought.

We reproduce the grounds of appeal in extenso:

a) The judgment is against the weight of the evidence on record;

b) That the trial judge erred in law when he held that the plaintiff was entitled to all his accumulated salary from the date of termination of his appointment including all benefits that would have accrued to him if he was still in employment, leave allowance, and any other allowance to which he would have been entitled within the period;

c) The trial judge...erred when he held that the plaintiff’s appointment was unfairly terminated without reference to the terms of the Rules and the Conditions of Service which governed the employment relationship;

d) That the trial judge erred when he completely disregarded the findings of the defendant’s house committee which made the findings of negligence against the plaintiff/respondent.

We will consider grounds (a) and (d) together.

Was the judgment against the weight of the evidence?

A cardinal principle that guides the exercise of the appellate jurisdiction is that an appellate court must be slow to overturn findings of fact made by the trial court. Thus, unless it is demonstrated that the findings of the trial court are perverse, or cannot be supported by the evidence, same ought not, as a general rule, be disturbed on appeal, see: In Re Okine (Decd); Dodoo and Anor v. Okine and Ors [2003-2004] SCGLR 582. The reason for this is the recognition of the trial court’s exclusive right to make primary findings of fact, and furthermore, that it has in this enterprise, the advantage of determining the credibility of witnesses by observing the demeanour of the parties and their witnesses, see: Agyenim-Boateng v. Ofori and Yeboah [2010] SCGLR 861. Even so, an appeal is by way of rehearing, and a complaint that the judgment is against the weight of the evidence, invokes our jurisdiction, see: Rule 8(1) of the Court of Appeal Rules CI 19, see also: Oppong Kofi and Ors v. Attibrukusu III [2011] 1 SCGLR 176, also: Djin v. Musa Baako [2007-2008 SCGLR 686] to examine the record in its entirety evaluate the evidence led, and come to our own conclusions.

We will therefore in answering the question posed: whether the judgment was against the weight of the evidence, consider the totality of the evidence led, and come up with our own conclusions as to whether the findings of the trial court are supportable from the evidence on record.

We note that the evidence led in the trial by the plaintiff, was substantial, and that cross-examination was lengthy. We note that this came about when the evidence-in-chief which was electronically recorded could not be traced, and was therefore expunged so that the plaintiff recalled, could give fresh evidence. The order expunging the evidence however did not include cross-examination that had been conducted on the expunged evidence and when the plaintiff repeated his evidence in chief, he was further cross-examined. All of these must be taken into consideration in our present task.

To recapitulate the evidence on record: Foreign transfer transactions carried out by the defendant’s International Business Centre in alleged reliance on the verification of signatures on the transfer request letters (exhibits A and A1)by the plaintiff, led to loss of money by the defendant, a banking institution. This was because the transaction turned out not to have been authorised by the defendant’s customer Emefs Construction Company. In consequence, the defendant had to refund the monies wrongfully debited and transferred out of that customer’s account, to it. For this reason, after putting the respondent before its in-house Disciplinary Committee and receiving its report, the defendant, on 2nd October 2007, by letter exhibit D, terminated the employment of the plaintiff, giving the following as the reason for its action: that the plaintiff “did not check the signatures and the mandate in flexcube contrary to the Bank’s regulations”. This action was said to have amounted to “gross negligence which resulted in the heavy loss of (GBP)114,000 to the Bank”. The said action and its consequence, the appellant declared, entitled it to terminate the employment of the respondent in accordance with Section 12.0 of the defendant’s Rules and Conditions of Service.

This was the subject of the plaintiff’s suit and in respect of which judgment was entered for him at the court below.

Our careful consideration of the record reveals however, that in his consideration of the issues raised in the suit, the learned trial judge wrongly placed the burden of adducing evidence in support of the proof of the plaintiff’s case, upon the defendant.

In the letter of termination exhibit D, the defendant stated that the plaintiff had admitted to having failed to check the signatures and the mandate in flexcube. This is what was said to amount to negligence and incompetence, for which his employment was terminated. Although the learned trial judge held that the responsibility of verifying signatures was the plaintiff’s, he nonetheless held that the plaintiff’s pleading that he verified the signatures in flexcube, initialed, and stamped for onward transmission to the IBC, was a clear denial of negligence which placed the burden on the defendant to prove that the plaintiff had not done proper verification, or that the signatures authorised were different from the ones on the transfer request letters. In his judgment, the fact that the defendant joined issue with the plaintiff on the latter’s pleading in support of his claim for a declaration that he was not negligent or incompetent, placed the burden on the defendant to prove the plaintiff was in fact negligent.

The learned trial judge also held that the plaintiff had not in fact admitted negligence before the in-house Disciplinary Committee, for he believed the evidence of the plaintiff rather than the defendant’s because the defendant which had made such assertion of negligence in its Committee’s Report failed to call as witnesses the Committee’s members whom he held to be material witnesses to the defendant’s case.

In placing the burden of proof on the defendant, the learned trial judge further relied on paragraph 3 of the appeal letter the respondent wrote to the appellant to seek its reconsideration of the termination. Per the learned trial judge: “This clearly amounts to a total denial of the findings of the committee which resulted in the termination of the appointment of the plaintiff. I hold that the denial of the findings in exhibit H by the plaintiff imposed a duty on the defendant to have led evidence in support of the findings”.

By all these, the learned trial judge as aforesaid, placed the burden of proof and its concomitant burden of adducing evidence on the defendant. In our judgment, the learned trial judge misdirected himself on the party that bore the burden of proof in this matter.

Contrary to the assertion of the learned trial judge, the joinder of issue by the defendant did not relieve the plaintiff of his burden to establish what he had asserted: that the facts of the case negated negligence on his part. On the contrary, it rather placed on the plaintiff, the burden to establish what he averred in pleading and upon which his claims before the court were based, for in accordance with S. 10 of the Evidence Act NRCD 323,he bore the burden of proof which included the burden of persuasion being: his obligation to establish a requisite degree of belief concerning what he sought by his claim, see also: Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882, as well as the burden of producing evidence which required him to introduce sufficient evidence to avoid a ruling on the issue against him, see: Ss. 11 (1) and (4) of NRCD 323.Thus, unless he made a prima facie case of what he asserted, by establishing by cogent evidence that he in fact performed his assigned task with the requisite skill and care, the burden would not shift onto the defendant to negate the plaintiff’s case see: Lamptey alias Nkpa v. Fanyie [1989-90 ] 1 GLR 286 SC. This, the plaintiff failed to do, as we will demonstrate shortly.

Having had his employment terminated upon an allegation that he had been negligent and/or shown incompetence, the plaintiff, in accordance with S. 11(1) of the Evidence Act NRCD 323, assumed the burden of adducing evidence pertaining to matters aimed at demonstrating that the work he did for the defendant was neither negligent nor fraught with incompetence. In this enterprise, the plaintiff pleaded that he “satisfied himself that the signature on the transfer instructions were the authorised signatures of Emefs Construction Company accounts” before he “initialed the letter and sent it to the International Business Centre...” He contended also that in any case, verification of signatures was not his responsibility but the IBC’s in foreign transfers.

These matters, in respect of which the plaintiff gave evidence, were discredited during cross-examination. During cross-examination, the plaintiff who had made firm assertions in pleading and in evidence that he had used the defendant’s system: the flexcube, which was the defendant’s protocol in the verification of signatures for foreign transfers, prevaricated in no small measure. After many stout denials that he had failed to use the flexcube, he admitted that what he used in the verification of the signatures on that day was not the flexcube at all, but rather the Identification Number with which the customer’s accounts were opened. In changing his story during cross-examination, the plaintiff admitted that he had failed to use the flexcube because it was down that day. This circumstance he said, he had brought to the attention of the in-house Committee.

This admission which belied the holding of the learned trial judge that the plaintiff had made a clear denial of failure to verify the signatures in flexcube, was contained in page 127 of the record of appeal which recorded the proceedings of 24th November 2014.

We reproduce the cross-examination of that day:

“Q. “You were also invited to the Disciplinary Committee of the Bank

A. Yes

Q. In your statement you indicated that you verified the signature

A. Yes

Q. Did you indicate how you verified the signature in your statement

A I did.

Q. How did you verified [sic] it

A. I used the ID number which those two accounts were opened with.

Q. In your subsequent dealing before the Disciplinary Committee you stated the bank’s system was done [sic] so you verified using the local mandate

A. Yes I did. When the flexcube is down it doesn’t necessary [sic] mean you can’t work at your branch especially so when those two accounts were linked to an existing account at the Tema Fishing Branch.

Q. In your statement to Inspection you never mentioned the system been done[sic]

A. I did

Q. I put it to you, you never indicate in you statement to inspection that flexcube was done at the time

A. I did”

This crucial admission that the plaintiff purported to verify the signatures using a local mandate, and furthermore, that he used not the flexcube, but account identification numbers, appears to have been missed by the learned trial judge in his evaluation of the evidence. The said admission was a direct contradiction of the plaintiff’s case before the court which had been grounded on his contention that he had in fact followed the bank’s regulation which was verification of the signatures in flexcube. The importance of this admission cannot be overstated, for it was the failure to verify signatures and mandate in flexcube that in the letter of termination, was said to amount to negligence and incompetence.

Thus the learned trial judge’s lengthy foray into the evidence led regarding whether or not the respondent failed to use the flexcube as found by the Disciplinary Committee, and his holding that it was in fact not so, was irrelevant in the face of the respondent’s said admission of his neglect to use the bank’s prescribed mode of verification.

DW1 the defendant’s internal auditor testified among other things that it was a requirement for branch personnel to verify signatures in flexcube, it being that official’s responsibility and not the IBC’s. In this regard, he testified that the capability of verification of signatures rested with the Branch which at the retail level had access to the flexcube signatures. The said witness was also emphatic that in verifying signatures, it was improper to use one account’s mandate for another. Yet by the plaintiff’s own admission reproduced above, that is precisely what he did.

The plaintiff’s case: that the matter of verifying signatures did not rest with him but with the IBC was contradicted by the plaintiff’s document exhibit F the document titled ‘Operating Procedure for Handling request for Import by Direct Transfer and Payment’. That document was quite unequivocal that the verification of signatures was to be done at the branch level (Paragraph 6.4). While the IBC staff were to ensure that the signatures were correct (paragraphs 6.5 and 6.6), it did not, in the face of the clear instructions of paragraph 6.4, relieve the Branch Manager (the plaintiff who as Deputy Branch Manager was in charge of the Branch at the material time), of his responsibility to do the verification.

Having had regard to the evidence led, we are wholly in agreement with the learned trial judge that the evidence showed that it was in fact the plaintiff’s duty to verify exhibit A and A1, and not as he contended, the responsibility of IBC. We are however unable to agree with his holding that the plaintiff was not negligent in verifying the signatures of Emefs Construction Company which was to be done using the flexcube, the defendant’s protocol for such verification. Rather the evidence negated such finding.

In the circumstance, we find that the holding of the learned trial judge to the contrary, is unsupported by the evidence led.

With respect to Ground (c) the plaintiff’s suit was grounded on wrongful termination, yet the learned trial judge failed to make such a finding, but rather held that his employment was unfairly terminated in that it sinned against S. 62 of the Labour Act, 2003 Act 651. The said provision sets out what constitutes fair termination, and the circumstances include where the employment is terminated inter alia, because the employee is incompetent, or lacks the qualification in relation to the work for which he is employed, as well as proven misconduct of the employee.

This finding of unfair termination was improper, for it was made in reliance of S.62 of the Labour Act when in fact, the relations between the parties was governed by their contract of employment contained in a document titled: Rules and Conditions of Service -exhibit G.

The plaintiff/respondent did not exhibit his letter of appointment with the defendant/appellant, but it was common cause that the employment agreement between the parties was governed by exhibit G. Unlike a collective bargaining agreement which has been incorporated into the Labour Act, Act 651, the said document set out the rights and responsibilities in a private employment contract between the parties. By Clause 12.0 of the Rules and Conditions of Service, each party could terminate the employment agreement by giving one month’s notice to the other.

This was in line with the common law position by which either party to an employment contract could disengage from it without suffering any consequences. Unlike sanctions such as dismissal which being punishment, must be resorted to only for justifiable cause, termination need not be punishment, and it is brought about upon the giving of fair or prescribed notice or salary in lieu of the period of notice.

This is because as the hackneyed expression goes, an employment contract is “a contract of service, not of servitude” in that the parties are equal, and either may exercise their right to painlessly and without assigning reasons, terminate the contract, see: Kobea and Ors v. Tema Oil Refinery; Akomea-Boateng and Ors v. Tema Oil Refinery [2003-2004] SCGLR 1033.

However, because termination often follows incidents of malfeasance that would if proven, attract disciplinary sanctions including dismissal, there is a common misapprehension that there has to be wrong doing for an employer to resort to it. This could not be further from fact, for at common law, an employer may choose to terminate the employment contract for any number of reasons, including having no further need of the employee, or even that the employee has lost the confidence of the employer. The common law right to terminate without consequences is not taken away by the Labour Act which provides for such termination in S. 17 thereof. Nor is it affected by proven misconduct, incompetence or negligence in the performance of an employee’s duty, if the employer, rather than applying sanctions including dismissal, chooses to simply terminate the employment contract. This right is what is contained in Clause 12.0 of the Rules and Conditions of Service of the defendant/appellant, the provision cited by the appellant in the letter terminating the employment of the respondent.

Thus, even if the allegation of negligence and incompetence had not been established against the respondent, a termination under Clause 12.0 which attaches no wrongdoing to the act, would not have been improper. But as we have found, the respondent’s admission of failure to use the flexcube (which was the bank’s protocol in the verification of signatures), supported the allegation of negligence or incompetence in the performance of his duty contained in the letter of termination.

There does not appear to be any basis then for the learned trial judge’s finding that the termination of the respondent’s employment was done under S.62 of the Labour Act 651 or that it was unfair.

In consequence, there was no justification for the grant of the relief seeking payment of accumulated salary and allowances predicated upon the erroneous finding of unfair termination.

We hold therefore that the judgment of the learned trial judge did not find support from the evidence led. In the circumstance, we find that the appeal has merit and in consequence succeeds.

The appeal is accordingly allowed.

No order as to costs.

SGD

M. M. AGYEMANG (MRS.) JA

JUSTICE OF THE COURT OF APPEAL

SGD

V. D. OFOE JA (PRESIDING)

JUSTICE OF THE COURT OF APPEAL

SGD

S. DZAMEFE JA

JUSTICE OF THE COURT OF APPEAL

COUNSEL

MR. GORDON AKPADIE WITH R. MODEY FOR PLAINTIFF / RESPONDENT

MR. CHARLES A. TAMMA FOR DEFENDANT / APPELLANT