PETER BOACHIE V. PRECIOUS MINERALS MARKETING CO.

JUDGMENT

ASUMAN-ADU, J.

The Plaintiff was until 29th July, 2009 the Managing Director of the Defendant Company. According to him his terms and conditions of service of employment was governed by Senior Staff Conditions of Service which adopted the 1992 Constitution on retirement and removal from office and same is particularly contained in Article 2.15 of the said Senior Staff Conditions of Service. The Board of Directors of the Defendant Company was reconstituted in 2009. The new Board had its maiden meeting on 9th July, 2009 and scheduled its next meeting for the middle of August, 2009. However, three weeks after the first meeting and for no stated reason, the Chairman of the Board by a letter dated 29th July, 2009 wrote to the Plaintiff terminating his appointment with effect from 4th August, 2009.

The Plaintiff contends that the termination of his appointment offends against the provisions of the Conditions of Service, the provisions of the Labour Act, Act 651 and the provisions of the 1992 Constitution. The termination of his appointment is, therefore, wrongful so he commenced the instant action against the Defendant on 13th February, 2013 for the following reliefs:

a. Declaration that the termination of his appointment as Managing Director of the Defendant Company is unfair and wrongful.

b. General damages for unfair and wrongful termination of his appointment.

The Defendant entered appearance on 21st February, 2012 and went on to file its statement of defence on 13th June, 2012 denying Plaintiff’s claim. It contends that the Plaintiff’s appointment as Managing Director was terminated on 25th August, 2006 by the previous Board on the basis of unsatisfactory service, managerial incompetence and insubordination and was paid three months’ salary in lieu of notice. The Plaintiff sent that matter to court and he was found back at post as Managing Director. However, by a letter dated 3rd April. 2008 the Minister for Land, Forestry and Mines ratified the decision of the then Board terminating Plaintiff’s appointment. The Defendant, therefore, complied with the Conditions of Service regarding termination of appointment of senior personnel by paying to the Plaintiff three months’ salary in lieu of notice. The Defendant was further directed to discuss ancillary issues with the Board but had failed to do so.

The Defendant avers that the Plaintiff was given a VW Passat saloon car at GH¢5,500.00. He was also given up to March 2010 to vacate his official residence in excess of the three months allowed without charging him economic rent for the period. In view of that the Board’s termination of Plaintiff’s appointment was fair and proper so the Plaintiff is not entitled to his claim.

At close of pleadings the following issues were set down for trial by this court:

a. Whether or not the termination of appointment of the Plaintiff was wrongful and unfair.

b. Whether or not the former Chairman and the purported Managing Director were convicted of contempt.

c. Whether or not the Plaintiff is entitled to his reliefs.

d. Any other issues raised by the pleadings.

The instant action being a civil case the standard of proof lies on the Plaintiff who has come to court requesting the court to determine in his favour that the termination of his appointment is wrongful to discharge the evidential burden in order for him to convince this court as required by law. See Sections 10, 11(1) and (4) and 12(1) and (2) of the Evidence Act, 1975 (NRCD 323).

Section 10(1) of the Act defines the burden of persuasion to mean the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court;

Section 10(2) of the Act goes on to provide that the burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt;

Section 11(1) defines burden of producing evidence to mean the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party; and

Section 11(4) provides that in other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence;

By Section 12(1) of the Act, the burden of persuasion requires proof by a preponderance of the probabilities and Section 12(2) of the Act defines “preponderance of the probabilities” as that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.

So by the provisions in Sections 10, 11 and 12 of the Act as shown above, the obligation of a plaintiff in a civil case to prove his case on a balance of probabilities and on a preponderance of evidence is now statutory. See Agyenim Boateng and Ors v. S.K. Boateng [2009] 5 G.M.J 58 at page 71 in which the Court of Appeal stated as follows:

“It needs not be emphasized that in a civil case such as the instant one the plaintiff has the duty and or obligation to prove his case on a balance of probabilities and that no weakness in the defendant’s case can avail him. In simple and unambiguous language the rule is that the plaintiff has the burden of proof and persuasion in the civil case.”

The rule is, therefore, that the burden of persuasion which a party is required to establish to prevent a ruling being made against him on an issue is by preponderance of probabilities. See the dictum of Ansah JSC in the case of Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at page 900 where he stated concerning the burden of proof in civil matters as follows:

“It is sufficient to say that this being a civil suit, the rules of evidence requires that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Decree, 1975 (NRCD 323). Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it the plaintiff, or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict”.

The law is, therefore, settled that the party who bears the burden of proof must produce the required evidence of the facts in issue that has the quality of credibility for his claim to succeed. This law is succinctly summed up by Her Ladyship Mrs. Sophia Adinyira in the case ofAckah v. Pergah Transport Limited and Others [2010] SCGLR 728 as follows:

“It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail ... It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”.

In the instant case the Plaintiff contends that the termination of his appointment by the Defendant for no cause offends against the provisions of the Conditions of Service, the provisions of the Labour Act, Act 651, and the provisions of the 1992 Constitution of Ghana which have been adopted by the said Conditions of Service. The termination of his appointment is, therefore, wrongful and this court must so hold. The Defendant, however, contends that the Plaintiff’s appointment was terminated by the previous Board on the basis of unsatisfactory service, managerial incompetence and insubordination and was paid three months’ salary in lieu of notice. The Defendant, therefore, complied with the Conditions of Service in terminating Plaintiff’s appointment. The termination is as a result proper and fair so it is not wrongful and this court must so hold. Since the Defendant has denied Plaintiff’s claim the onus is on the Plaintiff to lead sufficient evidence to prove his claim on a balance of probabilities as a result of which this court must rule in his favour. See the case of JASS CO LTD and Another v. APPAU and Another [2009] SCGLR 265 at 270 where Dotse JSC stated as follows:

“...We wish to observe that the burden of proof is always put on the plaintiff to satisfy the court on balance of probabilities in cases like this. Thus, where in situation, the defendant has not counterclaimed; and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claim would be dismissed...”

See also the case ofFosua and Adu-Poku v. Adu-Poku Mensah-Ansah [2009] SCGLR 310 in which the Supreme Court held that where the Plaintiff is able to produce sufficient evidence to prove his case then the onus shifts to the Defendant to lead evidence that would tilt the balance of probabilities in his favour. This principle is found in Section 14 of the Evidence Act (Supra) which provides as follows:

“Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact, the existence or non-existence of which is essential to the claim or defence that party is asserting.”

So in the instant case this court will have to find out from the evidence before it, whether the Plaintiff has been able to discharge the burden on him by producing sufficient evidence to prove his case as a result of which this court must rule in his favour. In doing so, the court will have to consider the issues that were settled by this court for determination. From the evidence before the court the issues before the court will be narrowed down to only two which are:

a. Whether or not the termination of the appointment of the Plaintiff was wrongful, and

b. Whether or not Plaintiff is entitled to his reliefs.

The first issue for consideration is whether or not the termination of the appointment of the Plaintiff was wrongful and unfair. I will address this issue by first considering the issue of unfair termination.

Sections 62 and 63 of the Labour Act, 2003, (Act 651), deal with factors that lead to fair and unfair termination of employment respectively. Section 64 provides remedies for unfair termination of employment. By Section 64(1) a worker who claims that his employment has been unfairly terminated by his employer may present a complaint to the Labour Commission. Section 64(2) goes on to state that if upon investigation of the complaint the Commission finds that the termination of the employment was unfair, it may decide on one of the following:

a. Order the employer to re-instate the worker from the date of the termination of employment,

b. Order the employer to re-employ the worker, either in the work for which the worker was employed before the termination or in other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination. Or

c. Order the employer to pay compensation to the worker.

So as provided by the Labour Act where an employee considers the termination of his employment to be unfair then the appropriate forum is the Labour Commission and not the courts. See the case of Bani v. Maersk Ghana Limited (2011) 2 SCGLR 796. In that case, the plaintiff, Felix Yaw Bani and two others were found guilty in a report of a sub-committee set up by the defendant to investigate them for an alleged offence committed by them. Whilst plaintiff’s appointment was terminated by the defendant, the other two colleagues were only served with warning letters. The plaintiff being dissatisfied with the defendant’s action against him, sued the defendant company for, inter alia, a declaration that the termination of plaintiff’s appointment by the defendant was unlawful, unfair and without any basis whatsoever; and an order for the immediate re-instatement of the plaintiff. On the issue of unfair termination the Supreme Court held that the original jurisdiction has been reserved for the Labour Commission to the exclusion of the courts. Dr. Date-Bah JSC delivering the lead judgment of the Court stated at page 809 as follows:

“Section 64 of the Act provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission established under the Act. If the Commission finds that the termination of the worker is unfair, it may give him or her one of three remedies specified in the Act: an order to the employer to re-instate the worker from the date of termination of employment; an order to the employer to re-employ the worker in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or order the employer to pay compensation to the worker. These statutory remedies are made available to the Commission but not, at least expressly, to the courts.”

On the authority of Bani v. Maersk Ghana Ltd(supra) as stated above, the Plaintiff in the instant case cannot come to this court seeking remedy for unfair termination. As has been stated elsewhere in this judgment it is the Labour Commission that has original jurisdiction to adjudicate complaints of unfair termination of appointment. So by coming to this court for unfair termination the Plaintiff has come to the wrong forum so he cannot obtain his relief on that from this court. He would have to go to the Labour Commission if that had been the main relief he is seeking from this court. It is, however, observed that in addition to unfair termination the Plaintiff is seeking a relief for wrongful termination of his appointment. This court will, therefore, have to find out from the available evidence whether or not the termination of Plaintiff’s appointment by the Defendant Company is wrongful.

In an action for wrongful termination of appointment, it is the duty of the Plaintiff to prove to the court that by the terms of his employment or by the terms of existing statutory provision the termination of his appointment by the Defendant is wrongful. The principle on this is provided in the case of Morgan and Ors. v. Parkinson Howard Ltd. (1961) GLR 68 in which Ollenu J (as he then was) stated at page 70 as follows:

“In a claim for wrongful dismissal it is essential that the Plaintiff should prove the terms of his employment and then prove either that the determination of the employment is in breach of the terms of his agreement, or that the determination is in contravention of the statutory provisions for the time being regulating employment. His claim cannot succeed if he fails to satisfy the court on these points.”

This position of the law was adopted by the Supreme Court in the case ofKobi v. Ghana Manganese Co. Ltd. [2007-2008] SCGLR 771 at Page 786 in which Ansah JSC stated as follows:

“The issues agreed upon for trial, were whether or not the termination of the Plaintiffs’ appointment was wrongful and illegal and whether or not the Plaintiffs were entitled to their claims. This being an action for damages for wrongful dismissal, each Plaintiff assumed the burden of proving the terms of his employment; that the determination was in breach of the terms of the agreement, or in contravention of statutory provisions for the time being regulating employment. If a Plaintiff failed to satisfy the Court on these points, his or her claim cannot succeed.”

In applying the principles in the authorities referred to above to the instant case, it is my view that the instant action being an action for wrongful termination of appointment, the Plaintiff herein assumes the burden of proving to the Court the terms of his employment and that the termination of his appointment by the Defendant is in breach of the terms of his employment, or it is in contravention of statutory provisions for the time being regulating employment. This court will, therefore, have to find out from the evidence before it whether the Plaintiff has been able to satisfy those principles in the instant case.

In proving his case the Plaintiff gave evidence in court. His evidence was that he was employed by the Defendant Company in 1993 as the Director of Audit. At that time the Defendant was called Precious Minerals Marketing Cooperation. He tendered his appointment letter in evidence as Exhibit A. in 1997 he was appointed as Director of Finance and Administration. He held that position until the year 2000 when he was appointed as Acting Managing Director. In the year 2002, a new Board was put in place and he was confirmed by the Board as the Managing Director. He tendered the confirmation letter in evidence as Exhibit B. His appointment was governed by the Senior Staff Conditions of Service and by that his appointment could be terminated upon proving offence or misconduct. He tendered the letter terminating his appointment as Exhibit C.

On receipt of his termination letter, the Plaintiff caused his lawyer to write to the Defendant for the letter to be withdrawn and it reacted to that letter by requesting the Plaintiff to make himself available for a discussion on ancillary matters and his lawyer contacted the Defendant but to no avail. The Plaintiff considered the termination as being unlawful so he took the instant action against the Defendant.

The Plaintiff tendered in evidence the Senior Staff Conditions of Service through the Defendant’s representative as Exhibit J. The said document provides at Article 2.17 (a) that the appointment of management/senior staff may be terminated for unsatisfactory service or on grounds of ill health by the Company by giving three (3) months’ notice in writing or by the payment of three (3) months’ salary in lieu of notice.

Exhibit J goes on to provide for Disciplinary Procedures at Article 5.6 (b) as follows:

“b.0) Disciplinary Procedures

b.1) An employee whose work and conduct are found unsatisfactory shall be given the opportunity to respond verbally to the charges leveled against him/her by the supervisor in the presence of a witness.

b.2) Where the offence warrants, a written notice shall be served to the staff outlining the offence committed and the staff shall be given the fullest chance to defend himself/herself. Where necessary, a disciplinary board shall be constituted to internally investigate the facts of the matter and make appropriate recommendations for consideration by management.

b.3) Where a disciplinary committee is constituted, there shall be a representation from the relevant staff group to which the accused staff belongs i.e. Union, Senior Staff Association, Management.

From the provisions as stated above, the Defendant Company in the instant action could not terminate the Plaintiff’s appointment without giving him a hearing. The Defendant states at paragraph 9 of its statement of defence that Plaintiff’s appointment as Managing Director was terminated on 25th August, 2006 by the previous Board on the basis of unsatisfactory service, managerial incompetence and insubordination. It goes on to state that it complied with the conditions of service by paying the Plaintiff three months’ salary in lieu of notice so the termination of his appointment is not wrongful.

In the first place if the Plaintiff’s appointment was terminated on the basis of unsatisfactory service, managerial incompetence and insubordination, then the question is how was those allegations proved? There is no evidence before the court that in terminating Plaintiff’s appointment, the Defendant complied with Article 5.6 (b) which provides for the disciplinary procedure that the Defendant should have followed.

Secondly, the fact that the Plaintiff was given three months’ salary in lieu of notice does not mean the Defendant complied with the disciplinary procedure. Even though Article 2.17 (a) provides that the appointment could be terminated by giving three months’ notice or three months’ salary in lieu of notice reading the whole document it is made clear that an appointment of an employee could only be terminated after giving the employee the opportunity to defend himself. By Article 2.17(a) of Exhibit J, before giving notice or salary in lieu of notice for termination of the appointment of an employee, it must be established that the appointment of the employee concerned is being terminated for either unsatisfactory conduct or ill health. The Plaintiff’s appointment was terminated per Exhibit C. It states in part as follows:

“The Board has decided to terminate your appointment as Managing Director of Precious Minerals Marketing Company (PMMC) with effect from 4th August, 2009.

You will be paid three (3) months’ salary in lieu of notice.”

There is nothing in that letter indicating that the Plaintiff’s appointment was terminated for either unsatisfactory conduct or ill health. That is he was not giving a hearing before his appointment was terminated. It must be noted that at common law an employer could terminate the appointment of an employee without justifying it provided he gives the employee, the required notice or the required salary in lieu of notice. He is not even bound to give reasons for terminating the appointment of the employee. However, where, the conditions of service provide for a disciplinary procedure to follow in such cases then the employer is bound by it. In that case the employer is expected to justify termination of appointment.

In the case of Kobi v. Ghana Manganese Co. Ltd. (supra), the Supreme Court per Ansah JSC held that the right of an employer to terminate the employment of the employee is dependent on the terms of the contract and must be exercised in accordance with the terms therewith. He goes on to state that in looking for justification for the action of the company, where a collective agreement existed between the employer and the employees, that must be the yardstick or the acid test to apply in terminating the employment of an employee. That is when the parties have provided for certain eventualities and procedures in a collective agreement, they ought to apply fully so as to justify any action by the parties to the agreement. In that case the court held that the termination of plaintiff’s employment was wrongful because in terminating the employment of the plaintiff the defendant did not follow fully the procedure provided in the terms of the contract.

See also the case of Bani v. Maersk Ghana Ltd, (supra) in which Dr. Date-Bah JSC quoted Ofoe JA with approval his dictum in the same case at the Court of Appeal stage as follows:

“It was the choice of the respondent whether to dismiss or terminate the employment. But immediately it decides on one, then the procedures under the collective agreement to effectuate the choice should be complied with. The company is in clear violation of the collective agreement and it is such violation that the Supreme Court in the case of Kobi v. Ghana Manganese Co. Ltd...castigated.”

In the instant case the evidence before the court as stated elsewhere in this judgment shows that the Plaintiff did not comply with Article 5.6 (b) of the Senior Staff Conditions of Service of the Defendant Company in terminating the appointment of the Plaintiff. It implies that the Plaintiff was not given the opportunity to react to the allegations leveled against him by the Defendant in the statement of defence before his appointment was terminated.

The court also takes notice of the fact that by Article 190 (b) of the 1992 Constitution of Ghana, the Defendant institution is a public service so in terminating the appointment of the Plaintiff the Defendant should have taken into consideration Article 191 (b) of the 1992 Constitution which states as follows:

“A member of the public services shall not be dismissed or removed from office or reduced in rank or otherwise punished without just cause”

As has been stated elsewhere in this judgment, the appointment of the Plaintiff was terminated by the Defendant without just cause which amounts to a breach of the Constitution. This implies that the termination of Plaintiff’s appointment, breached the Senior staff Conditions of Service and at the same time the 1992 Constitution of Ghana, therefore, making the termination of Plaintiff’s appointment wrongful and I so hold.

Having held that the termination of Plaintiff’s appointment by the Defendant was wrongful he is entitled to be paid damages for wrongful termination of his appointment. The reason being that for terminating Plaintiff’s appointment without recourse to his conditions of service and the 1992 Constitution of Ghana, he has suffered damages and ought to be awarded compensation as he would be entitled by law. The principle on this is stated in the case of Ridge v. Baldwin (1962) A.C. 40 at 65 as follows:

“The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence. It depends on whether the facts emerging at the trial prove breach of contract”

In the instant case it has already been established by this court that the termination of Plaintiff’s appointment by the Defendant is wrongful. So by the decision in Ridge v. Baldwin (supra) the Plaintiff is entitled to be paid compensation as damages for wrongful termination of his appointment since the Defendant has breached the contract between them by terminating his appointment without giving him a hearing. The question then is what quantum of damages is appropriate to be paid to the Plaintiff? In deciding on the appropriate damages to be paid to the Plaintiff, the court will take into consideration compensation or damages paid in some decided cases.

In Nartey Tokoli and Ors. v. Volta Aluminum Co. Ltd. No. 2 (1989-90) 2 GLR 341 the Supreme Court in reviewing its own decision held in holding 2 as follows:

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

Also in the case ofGNTC and Anor. v. Baiden (1991) 1 GLR 567, the Supreme Court held that it would be unrealistic to pay the Plaintiff salary as though up to the date of the judgment of the High Court he was rendering services to the Defendants. He was, therefore, awarded two years’ salary for wrongful dismissal. The Court also held that since the dismissal was a nullity and not merely wrongful, it was proper that the Plaintiff be paid in addition all allowances he would have received during the period but excluding the salaries of servants of the corporation such as a driver or watchman, assigned to render him personal services. He was also entitled to gratuity and other retiring benefits as though he had retired from the service of the corporation at the end of the period.

There is also the case of Ankorful v. State Fishing Corporation (1991) 2 GLR 348 in which Osei Hwere J. A. (as he then was) held at holding 2 as follows:

“On the authorities where a servant had been wrongfully dismissed from his contract of employment, damages were to be measured by the amount of salary which the servant had been prevented from earning by reason of the wrongful dismissal. The Plaintiff was, therefore, entitled to:

i. all his salaries calculated from the date of his interdiction to the date of judgment,

ii. payment of three months’ salary in lieu of proper notice and

iii. all his end of service awards calculated from the date of his interdiction up to the date of judgment.

The calculation of his entitlement should be reckoned on the substantive post he held at his dismissal. He was also entitled to damages for prospective loss of promotion and loss of employment. He had been kept out of his employment for over ten years. If he had stayed in his job, he would have earned his promotion.”

Also in assessing damages for wrongful dismissal, the Court must have regard to all the circumstances of the case considered as fair and reasonable. It must consider the general unemployment problem in the country and all the circumstances of the case and also the fact that the award of damages in these matters has ranged between one year and two years. See Kobi v. Ghana Manganese Co. Ltd. (supra)

So from the authorities referred to in this judgment, since the termination of the Plaintiff’s appointment by the Defendant has been held to be wrongful, he is entitled to be paid damages for wrongful termination of appointment. Considering damages awarded in the authorities referred to above and the circumstances in the instant case, it is my view that Plaintiff ought to be paid 24 months’ gross salary as general damages for wrongful termination of his appointment.

In conclusion I enter judgment for the Plaintiff as follows:

a. I hereby declare that the termination of Plaintiff’s appointment as Managing Director of the Defendant Company is wrongful.

b. It is hereby ordered that Defendant pays to the Plaintiff 24 months’ gross salary as general damages for wrongful termination of his appointment.

Plaintiff’s costs are assessed as GH¢5,000.00

COUNSEL

MAJOR T. A. DATEH FOR THE PLAINTIFF;

MS. GERTRUDE ACHIREM HOLDING ACHI DANSO’S BRIEF FOR THE DEFENDANT.