CHARLES YAW FUGAH V. COCOA MARKETING COMPANY

JUDGMENT

OFOE, J.A.

I will refer to the plaintiff/appellant and defendant/respondent as plaintiff and defendant respectively as they were in the trial court. The defendant Company was occasioning losses arising out of short weight of Cocoa exported to its customers. Upon arrival of the Cocoa at the destination port of the customers, the Cocoa bags were found to be short weighted. The buyers therefore surcharged the defendants for these short weights. The defendant decided to investigate these losses and after thorough investigation by two committees a recommendation was made for the termination of certain staff including the Plaintiff. The recommendation was carried out and the Plaintiff's appointment was terminated. Aggrieved at the termination the Plaintiff sued the defendant claiming

(a) A declaration that the termination or purported termination of Plaintiff's employment is unlawful and null and void.

(b) An order restating the Plaintiff.

(c) Further or in the alternative damages for wrongful termination of appointment."

By the pleadings of the parties the main issue for trial was whether the defendant complied with its Collective Bargaining Agreement giving the plaintiff the opportunity to defend himself before his appointment was terminated. Indeed it was the substance of the issues for trial set by the trial Court. It needs to be mentioned that the defendants counter claimed, although not set as part of the issues for trial, and introduced the issue whether the plaintiff should be liable to a total cost of 1075 bags of cocoa beans lost to the defendant.

The trial judge dismissed the whole of Plaintiffs claims and dismissed the counterclaim as well. It is against this dismissal that the plaintiff is aggrieved and has appealed to this court praying that we set aside the trial judgment and enter judgment in his favour. He has two grounds of appeal. That

"(a) The judgment is against the weight of evidence.

(b) The learned trial judge erred in holding that he plaintiff’s employment was terminated in accordance with this contract of service."

In his written submission Counsel for the plaintiff decided to argue both grounds of appeal together. I think this decision is in order. The substance of his submissions was that there was no evidence proving beyond reasonable doubt, as demanded by the Article 15(a)(i)and(ii) and (c) that the defendant had committed the offence of dishonesty, by deliberately receiving short weighted cocoa in stock. It is his case that this same article was breached when the defendant failed to give the plaintiff the opportunity to defend himself before the termination. For these submissions he relied on the authorities of Republic V. High Court, Kumasi Ex-parte Mobil Oil (Ghana) Limited; Hagan (Interested Party) (2005-2006) SCGLR 312, Kobea v. Tema Oil Refinery (2003-2004) 2 SCGLR 1022 at 1048.

Counsel for the defendant holds a contrary view. To him the plaintiff has a wrong interpretation of these Article 15(a)(i),(ii) and (b). It is his submission that there was sufficient evidence in prove of the guilt of the plaintiff beyond reasonable doubt. The plaintiff admitted that his Block B received cocoa that were short weighted and shipped. Asked whether he had any explanation to this lapse he said none. Counsel submitted further that the plaintiff's admission that his team failed to refuse or omitted to reject cocoa that was short weight is clear evidence of the plaintiff and colleague's dishonesty, incompetence or negligence. These acts are clear violation of article 15 (c) (iii). This admission, counsel submitted, was also made by six of plaintiff’s colleagues who appeared before the committee and none had any excuse for the short weight.

In respect of the plaintiff's claim that he was not given the opportunity to defend himself whether orally or in writing, it is counsels submission that to accord the suspect full privilege of defense either orally or in writing means nothing than to give the suspect, in this case the plaintiff, the opportunity to defend himself either orally or in writing. There isn't the need to prove that the plaintiff was heard by any committee or even given a query. Counsel's interpretation of Article 15(a) (i) bears quoting. At page 5 of his submission he stated:

1) A critical look at Article 15(a) (ii) shows that it made provision for the worker to be accorded full privilege of defense either orally or in writing. To accord means to give an opportunity to or to grant authority to somebody to do something. It does not mean you should force the person to do what you have granted authority to the person to do. Therefore in discharging the burden laid on the Defendant Company by Article 15(a) (i) the defendant need not prove that the plaintiff was heard by any committee or even given a query. All the defendant company was obliged to do was to give the plaintiff the opportunity to defend himself either orally or in writing".

Counsel continued on page 6

"Even though it has a duty to hear everybody, the law as stated in the two cases above is that they are only bound to hear all available and relevant evidence. In that respect, they are expected to extend invitation to all witnesses who have relevant evidence to give. The evidence need not be written and the process of invitation need not follow any formal procedure such as inviting a person in the presence of or through his supervisor."

For these views Counsel purports to rely on the cases of Republic V. Ghana Railways Corporation Ex-parte Appiah (1981) GLR 752 at 758-759 and Darkwa V. The Republic (1981) GLR 241 at 246.

Counsel admits however that plaintiff was not heard by any of the committees but it is his submission that it was the plaintiff who failed to appear before the committee. If all the other workers in the shed appeared before the committee, for what reason did the plaintiff not appear? What would be the motivation for the committee not inviting the plaintiff alone, Counsel asked? To Counsel if the plaintiff was ready to he heard but was refused by the committee then it could be said that he was refused a hearing. Plaintiff knew about the hearings and the fact that all his colleagues had appeared before the committee but he chose not to. He can't now complain that he was not heard.

There is no dispute that the plaintiff's appointment was terminated with immediate effect by a letter dated the 6th of September, 2001. The reason for the termination was that he deliberately received short weight cocoa into stock. This act, according to the termination letter was tantamount to negligence of duty, dishonesty and incompetence. There is also no dispute that the defendant did not appear before any of the committees before the decision to terminate his appointment was meted out to him. The relevant provision governing the dispute is Article 15. It provides;

Article 15: Discipline

(a) (i) Disciplinary measures shall be taken in accordance with the gravity of an offence having been proved beyond reasonable doubt and after according the suspect full privilege of defense either orally or in writing.

(ii) The Union shall be notified in all cases of Discipline: Summary Dismissals and Termination of Appointment etc.

Article 34: TERMINATION AND REPATRIATION

(a) Except in the case 0f serious misconduct which calls for summary dismissal, the employer may terminate the appointment of an employee by giving one months notice or by paying one months salary/wages in lieu of notice

The main issue between the parties before us is whether these articles was honored when the decision was taken to terminate the appointment of the defendant. The authorities are settled that either party to the employment contract has the right to terminate the employment relationship in accordance with its terms. Unless the contract demands that reasons be given for the termination, the employer is not bound to give any reasons and indeed whatever reasons it gives is of no moment to the termination. Refer to the cases of Kobea v. Tema Oil Refinery (2003-2004) SCGLR 1033 and Nartey Tokoli v. VALCO (1987-88) 2 GLR 533 and its Supreme Court judgment reported in the (1989-90) 2 GLR 341. In determining this appeal therefore there is the need to examine the collective agreement between the parties whether the defendant breached the provisions governing termination of the employment relations and for this we have to read the Agreement in whole.

The trial High Court Judge found that this article was not breached.

He stated at page 7 of his judgment found at page 83 of the record of appeal.

"Plaintiff has vehemently argued that because he was not invited by any of the Committees charged to investigate the circumstances that led to the short-weight cocoa, the defendant breached the natural justice rule for not hearing him.

Examining Exhibits 1-3 in general and the evidence of D.W. 1 in particular, it appears that the door was widely opened to every worker to tell the various committees whatever he/she could tell regarding the subject matter under consideration.

In the first enquiry (Exhibit 1) about 36 workers appeared and were heard. In the second enquiry (Exhibit 2 about 45 workers appeared and told the Committee whatever they knew of the matter, although some of them actually did not co-operate. Plaintiff cannot feign ignorance of what was then happening. He knew all that was going on. That is he knew there was investigation going on as to the short weight cocoa. He knew a good number of his co-workers appeared before the Committee and volunteered statements and pieces of information. He knew he was an integral part of the team that was being investigated. He knew some of his colleagues (Security guards) had appeared and volunteered one information or the other. Yet, plaintiff chose not to appear. He perhaps thought that he should be formally invited. He was wrong in that thought if that was the position he took. The matter under investigation was such that all workers who wanted to say one thing or the other were given the opportunity to do so. No individual person was being investigated. It was the whole system of receiving short weight cocoa into the shed that the Committee investigated. Be it as it may plaintiff was expected to appear and volunteer any statement if he had one. Having been aware of the investigation and not bothering to appear to say anything, he cannot turn round and accuse defendant of breaching natural justice rule."

I must say that before the trial judge came to this conclusion he had examined the merits of the plaintiff's case and found his case is unsustainable. The plaintiff admitted during the trial that there was short weight cocoa at shed B where he worked as a Security with 6 others. They were to ensure that cocoa received had the weight 63.8 kg per bag. In cross examination Plaintiff was asked amongst others:

"Q: Were you aware that your Block received numerous cocoa that were Short weight and shipped?

Plaintiff answered, "Yes".

He was again asked

"Q: Do you have any explanation as to the short weight cocoa received At Block B”? And he answered

A: "No"

From these pieces of evidence the trial judge, concluded that it is reasonable to infer that the plaintiff knew of the weight required for export but he and the others did not ensure that the team discharge their duties faithfully, a conduct that smacks of misconduct, if not incompetence.

The trial Judge said

"It is therefore my considered view that to the extent that plaintiff neglected or failed to live up to his duty faithfully of ensuring the correct weight of cocoa recovered, a fact plaintiff himself acknowledges and that the short weight cocoa received was attributed to the inaction of the team of which he was an integral part, the defendant cannot be faltered for dismissing or terminating the appointment of plaintiff and for that matter the entire 7 member team".

On the evidence, can the judge be faulted at these conclusions?

The record of appeal is clear that there were three committees that investigated the short weight cocoa in the defendant company: the two man committee led by Mr Zakuu. They interviewed 36 people raising the concern that there was collaboration amongst some of the workers not to appear and testify before their committee. To use their own words "The perpetrators have further agreed not to talk about their nefarious activities and the strategy appears to have worked perfectly well". With such handicap they recommended that the matter be referred to the security agencies who have the machinery to make the perpetrators talk. A Mr. Eduam was mentioned as having assisted the committee immensely, without whose help the committee would have had total blackout on information. This committee was followed by a six man committee chaired by Mr. Gorkeh Sekyim. They interviewed 45 workers. Even though this committee found no evidence linking individuals to the short weighting of the cocoa, they found overwhelming evidence of short weight which they attributed to the take over teams having compromised their position. They recommended the termination of the appointment of the take over teams. The third committee led by Opoku Darko reviewed the work of these earlier two committees and endorsed the termination of the takeover teams. From the recommendation of the committee it is clear to us, as it was also to the judge, that general invitation was thrown to all the workers who had something to say to appear. While some appeared others in collaboration refused to appear. There is no evidence that the plaintiff was not aware of these investigations. It would be ridiculous to accept any suggestion that the plaintiff did not know of the presence of these investigations at the site, particularly when his colleagues with him at the same shed appeared voluntarily before the committees. What then could be the reason why he did not appear? He offered no reason. It is not surprising that during the trial he confessed he knew of the short weight occasioned in his shed and had no explanation for the short weighting. In a situation where monies were changing hands amongst the workers, in this short weighting of the nations cocoa, it is not surprising there were others who refused to cooperate with the committees. The only reasonable conclusion to be drawn reading the entire evidence is that the plaintiff was, more probable than not, one of those who collaborated not to cooperate and suppress evidence from the committee. Plaintiff is now complaining before the court that he was not given a hearing.

As was asked in the case of Aryee v. State Construction Corporation reported in the (1984-86) 1 GLR 424, what is a "hearing" in this context? Or to use the words in the collective agreement, what amounts to "according the suspect full priviledge of defence either orally or in writing?" Guided by the context of the case the Corut of Appeal in the Aryee case accepted that the employee had been given a hearing in so far as he has been invited to give his written explanation. His Lordship Adade said

"....if the employee writes back answering the queries and offers an explanation and justification for his conduct or otherwise.... Then surely he would have taken advantage of the opportunity offered and would have been heard"

His Lordship Adzoe in Aboagye v. Ghana Commercial Bank (2001-2002) SCGLR 797 at 827 added that the contents of every query would have to be examined whether it satisfies the hearing requirement. Indeed in Halsbury's Laws of England 3rd Edition at paragraph 4, it is stated emphasizing the need to observe natural justice and I quote

".... The precise procedure to be followed in a given situation depends upon the subject matter of the decision or adjudication and upon all the circumstances of the case"

In Presbyterian Hospital, Agogo v. Boateng (1984-86) GLR 381 the Court of Appeal decided that even though there was a collective agreement which demanded the institution of a committee of enquiry before dismissal, in so far as the plaintiff had shown gross insubordination or gross negligence and refused to answer queries, the invocation of the collective agreement to give, as it were, hearing to the plaintiff was not necessary. Agreeably then, whether there is the need for a hearing or whether an employee has been give a hearing, and what amounts to a hearing depends upon the circumstances within the context of each case.

I will agree with the trial judge and as submitted by counsel for the defendant company, relying on cases like Aryee v. SCC sup, Republic v. Ghana Railway Corporation, Ex parte Appiah (1981) GLR 752 and Darkwa v. The Republic (1981) GLR 241 that the opportunity was given all workers to defend themselves if they had any, but it was the plaintiff who refused to appear. This is not a case, in my view, that demands the plaintiff be invited personally before another committee to answer charges of short weighting of cocoa, an act admitted by his colleagues in his shed, before termination of his appointment. Whether a party was given a hearing or not should be determined in the circumstances of each case. It is my view that to give a person a hearing should not be raised to absurd levels as to create hardship for the other contracting party. During the trial the plaintiff clearly admitted the wrong and had no explanation why his shed was involved in short weighting the cocoa sacks. It may be questioned why the trial judge took into consideration the admission of the plaintiff when his allegation was that he was not given a hearing before his termination. The authorities have maintained that where there is a complaint of breach of the natural justice rule, the merits of the case does not matter. Refer to the cases of Aboagye v. Ghana Commercial Bank (supra). But it appears to me that the circumstances of the case would have to be examined carefully in the application of this principle else the court rooms be made grounds for procuring frustrating ridiculous and vexatious orders and decisions. In the case before us the trial went to the extent where the plaintiff made the admission of the malfeasance in his cross examination. What will be the justice of the case if we are to say that despite this admitted wrong the termination was wrongful for failure to give plaintiff a hearing and should therefore be paid damages? Paid damages in addition to the wrong he and his colleagues have caused the defendant company, indeed, the state of Ghana? Where there is still outstanding the decision whether the plaintiff was indeed guilty of the alleged offence or not, it is my humble view, the principle as stated by the authorities that the merits of the case is immaterial may be applied with less reluctance but not in the case before us where the plaintiff has admitted the offence during trial. I am of the view the trial judge was right in taking into consideration the plaintiff's admission in court in arriving at his judgment.

By the termination letter the defendant complied with the condition of service when they directed the payment to him of all his entitlement including a month's salary in lieu of notice. That is what he is entitled to in accordance with the conditions of service

Applying all the principles that guide the appeal court in its deliberations when exercising its powers of rehearing, noting the powers we have as an appellate court in examining findings of fact made by the trial judge we come to the conclusion that the plaintiff has failed to convince us that the trial judgment is against the weight of evidence. He has also failed in convincing us that his termination is in breach of his contract of service.

We accordingly dismiss the appeal confirming in all material the trial judges reasoning and judgment.

(SGD)

VICTOR OFOE

JUSTICE OF APPEAL

ISAAC DUOSE, J.A.

I agree

(SGD)

ISAAC DUOSE

JUSTICE OF APPEAL

YAW APPAU, J.A.

I also agree

(SGD)

YAW APPAU

JUSTICE OF APPEAL

COUNSEL

MR. D. A. OTOO FOR PLAINTIFF/APPELLANT

JOHANES VERGBA FOR DEFENDANT/RESPONDENT