DANIEL ARMOOH V. HFC BANK GHANA LIMITED

JUDGMENT

i. Introduction:

[1] The Defendant Bank, HFC Bank Ghana Limited now known and called “The Republic Bank” published a disclaimer on Thursday October 22, 2009 in the Ghanaian Times and repeated same in the Daily Graphic on Thursday October 28, 2009 with the photograph of the Plaintiff Daniel Kwame A. Armooh to the effect that he had ceased to work for them and therefore “anyone who transacts business with him in the name of the Bank does so at his or her own risk”. At that time the Plaintiff had been charged following a complaint of forgery lodged by the Defendant with the Police and was been tried for conspiracy to commit fraud and forgery at the Circuit Court. The Plaintiff had also been notified by the Defendant that he had been dismissed. In this suit which is for wrongful dismissal, malicious prosecution etc., Mr. Armoph contends that the publication was actuated by malice because the publication caused him emotional distress and also prevented him from gaining employment with any banking institution in the last nine years. He has therefore called on this Court to award damages against the Defendant for its actions.

[2] The Plaintiff’s case is that whilst working with the Defendant Company on or about 30th July 2009, upon the instructions of the Defendant Bank’s employee he boarded a vehicle and was driven by the said employee to the Adabraka Police Station in Accra. According to him after waiting for a very long time he was questioned by a Police Officer on an allegation of an attempt to defraud the Bank of huge sums of money. He pleaded that despite his vehement denial he was charged by the police and in September 2009 he together with another person were arraigned before the Circuit Court Accra on charges of conspiracy and attempt to commit fraud and he was charged alone with the offence of forgery. According to the Plaintiff prior to the trial in August 2009 he was placed on interdiction by the Defendant pending investigation into the allegations against him.

[3] Plaintiff avers while the trial was pending, the Defendant on two consecutive occasions published his photograph in both the Ghanaian Times and Daily Graphic newspapers accompanied with words to the effect that the general public should refrain from transacting business with him on behalf of the Bank and that anyone who did business with him did so at his own risk. The Plaintiff further averred that even though the Defendant Bank was convicted for Contempt and ordered to retract the said publication it refused to comply with the order. Meanwhile, according to the Plaintiff the Defendant in the course of the trial in breach of its own disciplinary procedures outlined in the Defendant’s terms and conditions of service purported to dismiss him from the employment of the Defendant Bank. The Plaintiff further averred that he was acquitted and discharged of all the charges levelled against him. The Plaintiff averred that there was no reasonable or probable cause for his arrest and false imprisonment by Defendant, hence the claim.

[4] The reliefs endorsed on the Writ of Summons originally sealed in the Court’s registry on July 15, 2015 by the Plaintiff claimed the Defendant for General Damages are as follows:-

a) Unlawful Arrest;

b) False Imprisonment;

c) Malicious Prosecution and

d) Wrongful dismissal.

[5] The claim of the Plaintiff was met with a statement of defence filed by the Defendant on October 16, 2015 in which the Plaintiff’s claim was vehemently denied. The Defendant avers that the Plaintiff grossly violated the Defendant Company’s Operation Manual on account opening and as a result there was an attempt to defraud the Defendant Company. The Defendant averred that the police conducted their own investigation and therefore chose to arrest and charge the Plaintiff and therefore it cannot be responsible for the arrest. According to the Defendant as part of the investigation into the Forged Settlement Advice, a Forensic Report was issued by the Police CID Forensic Unit and the report identified “the Plaintiff as the only probable person who could have the details of the forged Branch Settlement Advice”. All the other allegations of the Plaintiff were denied by the Defendant. The Defendant also Counter-claimed against the Plaintiff for the following:

i) The Sum of GH¢823.10 being the outstanding indebtedness of the Plaintiff as at 31st August 2012.

ii) Interest on the aforementioned sum from 31st August 2012 till date of final payment.

iii) Cost

[6] By an Amended Statement of Claim pursuant to the leave of the Court granted on July 31, 2017 and filed on August 3, 2017 the Plaintiff added as reliefs 5 and 6 claim for Emotional distress and Loss of Economic/Professional Opportunity.

Issues for Trial

[7] At the close of the pleadings the issues contained in the Application for Directions filed by the Plaintiff on June 6, 2017 and the Additional Issues filed by the Defendant on June 19, 2017 and adopted by the court for trial were:-

a) Whether or not the Defendant is liable for wrongful dismissal of Plaintiff?

b) Whether or not in refusing to retract the injurious publication in the newspapers although ordered by the Court so to do, Defendant has caused the Plaintiff deep emotional distress and irreparable damage.

c) Whether or not the arrest and imprisonment of Plaintiff by the Defendant was unlawful.

d) Whether or not Defendant is liable for malicious prosecution of Plaintiff.

e) Whether or not the Plaintiff is entitled to his claims.

f) Any other issues arising out of the pleadings.

The Additional Issues

[8] The Additional Issues agreed upon to form part of the issues for trial were:

i) Whether or not the refusal by the Defendant to retract the publication after it had been convicted by a Court for Contempt has exposed the Plaintiff to ridicule, contempt and odium.

ii) Whether or not the conduct of the Defendant has caused the Plaintiff a lot of emotional distress.

iii) Whether or not Defendant is entitled to its Counter Claim.

Determination of the Issues by the Court

[9] The issues set down for determination in this suit will no doubt effectively determine the dispute between the parties. The law is trite that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by virtue of sections 10,11 and 12 of the Evidence Act 1975 [NRCD 323). The stated provisions have received judicial blessing as the Supreme Court has pronounced on them in the past to be the nature and standard of proof in civil cases.

[10] One of such decision is the case of ABABIO V. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:

“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.

[11] By the above statement of the law Aikins JSC reiterated the position of Kpegah JA. (as he then was) in ZABRAMA V. SEGBEDZI. [1991] 2GLR 221. Further, the Supreme Court reiterated the principle that the party who asserts has the burden of proof in the case of ACKAH V. PERGAH TRANSPORT LTD and ORS [2010] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held inter alia as follows:

“It is a basic principle of the 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. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).”

In this case the Defendant herein having set up a counterclaim, it carries the same burden as the Plaintiff carries in proof of its claim as if it were a Plaintiff for the purposes of proving its counterclaim.

The Plaintiff’s Evidence:

[12] The Plaintiff’s case consisted of his own testimony in court and the documentary evidence he submitted in support of his claim, marked in the record as Exhibits “A” to “J1”. Mr. Armooh testified based on the witness statement adopted at trial that he holds a first degree in Banking and Finance and was on 27th February 2008 employed by the Defendant as Clerk with its Ridge Branch in Accra. He has since commencing the instant action obtained a Master’s Degree in Business Administration at the University of Ghana. According to him his duty as a clerk involved assisting customers of the Bank, especially first-time customers to enable them open accounts with the Bank.

[13] According to Mr. Armooh he at all times nurtured the ambition of making a career in the banking industry and had high hopes of rising steadily to the top ranks of the Banks but that ambition was dashed when at the instruction of the Defendant Company he was arrested by the Adabraka police on or about 30th July 2009 who questioned him on an allegation of an attempt to defraud the Bank of huge sums of money. Mr. Armooh testified that despite the denial he was later charged and arraigned before the Circuit Court for trial but was acquitted and discharged after trial. A copy of the Police Charge Sheet was tendered at trial as Exhibit “B”.

[14] Mr. Armooh further testified that on 4tt August 2009, “I was placed on interdiction by the Defendant, pending investigation into the allegation levelled against me (Exhibit ‘A’ is letter of interdiction)”. The further case of the Plaintiff is that on 30th September 2009 while he was still standing trial at the Circuit Court, he was dismissed from the employment of the Defendant Bank in breach of the Defendant’s own conditions of service. He tendered as Exhibit “C” a copy of the letter of dismissal.

[15] Mr. Armooh further testified that “while my trial was pending, Defendant on two consecutive occasions published my picture in the Daily Graphic and Ghanaian Times respectively, accompanied with words to the effect that the general public should refrain from transacting business with me on behalf of the Bank as anyone who did so, did so at his own risk. (Exhibit ‘D1’ Ghanaian Times and ‘D2’ Daily Graphic)”. According to Mr. Armooh even though officers of the Defendant Bank were convicted by a court of competent jurisdiction for contempt for the publication and ordered them to retract the said publications, the Defendant Bank has refused to do so. It is his case that the publication has exposed him to ridicule, contempt and odium. A copy of the Court proceedings of November 4, 2012 was tendered as Exhibit “G” at trial. Copies of the Circuit Court proceedings were also tendered as Exhibits ‘H” and “J1” at trial.

[16] Mr. Armooh further testified that the Circuit Court later acquitted and discharged him of all the charges levelled against him. He tendered as Exhibit “F” the judgment of the Circuit Court. It is the case of the Plaintiff that there was no reasonable or probable cause for his arrest and false imprisonment by the Defendant Bank and that “my prosecution was at the instance of Defendant and was actuated by malice and meant to truncate my ambition to be a banker, indeed my ambition of making a career in the Banking industry has been completely shattered”. He also testified that the conduct of the Defendant has caused him a lot of emotional distress.

[17] The Plaintiff conceded at trial that he had not paid off the whole loan he took from the Defendant Company whilst in its employ when he was cross-examined. It is however noted that, the Plaintiff paid off the entire loan before the trial was over. Under cross examination by the Defendant’s counsel, the Plaintiff stood by his testimony that the Defendant without genuine cause caused his arrest and prosecution. He also again reiterated that the Defendant’s publication of his photograph in both the Daily Graphic and the Ghanaian Times has caused him serious distress and affected his employment prospects and opportunities. He denied working with Devtraco Limited but admitted that “it is true that I have gained employment with the National Service Secretariat as well as the Jospong Group of Companies” but stated that those “have not been the sort of employment as I nurtured growing up as a young man”.

[18] In further cross examination, the following evidence was elicited between Defendant’s Counsel and the Plaintiff.

“Q: And you will agree with me that your failure to adhere to the bank’s laid down procedures regarding opening of accounts led to fraud being perpetrated on it by one Dodico Company Ltd.

A: It is not true.

Q: I am putting it to you that all your colleagues in the banking operation department of the bank’s Ridge Branch were invited to the Adabraka Police Station, not so?

A: I am not aware.

Q: I am also putting it to you that the bank’s security officer did not accost you as you want this Court to believe.

A: My Lord I was not accosted by the security officer but rather it was done by the internal controller of the bank at that time by name Benjamin Dzoboku

Q: You will agree with me that you were not hand cuffed by the said Benjamin Dzodoku, no so?

A: Yes my Lord.

Q: At the police station it was the police that questioned you and not the Defendant, is that not so?

A: Yes my Lord. Before I was sent to the Adabraka Police Station Mr. Dzoboku invited me to his office and questioned me about the said account in the name of Dodico Co Ltd after which he asked me to write a statement for the records. It was after this that he drove me to the Adabraka Police Station to be locked up...

Q: I am also putting it to you that your prosecution by the Ghana Police was not instigated by the Defendant.

A: My Lord the Ghana Police took over the case after HFC Bank had handed me over to them and brought a case of fraud against me”.

[19] It should be noted that the Plaintiff denied in totality all the allegations of the Defendant to the effect that he secured employment shortly after his dismissal from the Defendant Bank despite the publications made. In yet another snippet of Cross Examination this is what happened:

“Q: I am putting to you that since you mitigated your losses by getting employment with Devtraco almost a month after working with HFC and subsequently working for over two years with the Ghana National Service Secretariat and finally with the Jospong Group where you have worked for six years.

A: My Lord I want to put it on record that I have never worked with Devtraco Ltd since my employment was terminated because of the publication of me in the two dailies...

Q: I am putting it to you that what you just said is not true and not backed by any evidence.

A: My Lord I stand by what I have said here in Court. Due to the publication in the newspaper nine years ago till date my dream of becoming an investment banker has not been achieved.

Q: I am putting it to you that the disclaimer published by the bank did not in any way cause you emotional distress and suffering that you want this Court to believe.

A: The publication has caused me a lot of suffering, for the past nine years and even attaining a Master’s degree in Finance at the University of Ghana all my attempt to get back into the banking sector has failed.

Q: I am putting to you that there is nothing before this Court showing that you have written to any of the 34 Commercial Banks as well as over 100 Microfinance Institutions and not been offered employment.

A: My Lord nothing of that sort is before the Court but there is enough evidence before this Court that upon my acquittal and discharge the offence brought against me HFC Bank now Republic Bank themselves have refused to re-engage me. What is more traumatising than this?”

[20] The Plaintiff in support of his case called his mother, Diana Armooh. She filed a witness statement which was adopted by the Court as her evidence in chief. The witness confirmed that the Plaintiff is her son. According to her the Plaintiff at a young age nurtured the ambition of becoming a banker and therefore she told the Court that “I encouraged him to study hard and he did so by obtaining a Degree in Banking from Central University in Accra and he currently has a Master’s Degree in Business Administration from University of Ghana”. Madam Armooh further testified that the Plaintiff secured a job with Defendant Bank upon graduation and he was working happily there until problems started. She further testified that “I am aware of his arrest, prosecution and subsequent acquittal and discharge by Court which showed his innocence”.

[21] The further evidence of Madam Diana Armooh was that when the trial was in progress the Plaintiff was suspended from work but sometime later he was dismissed from his employment even though the trial had not ended. The witness further testified that the Defendant Bank has so far failed to reinstate Plaintiff or retract the offensive publications made against him while the case was pending despite an order by the Court to do so. According to her the Bank “quickly paid a fine of GH¢3,000 to avoid their directors from going to jail for contempt” but refused to retract the publication.

[22] Madam Armooh further testified that “the conduct of the Defendant has caused Plaintiff and the family a lot of pain and emotional distress and did affect his chances of gaining employment as a young graduate generally. A company which offered him employment expressed no further interest upon seeing the publications”. She tendered as Exhibit K a letter of employment from Devtraco Limited dated October 22, 2009. Madam Armooh ended her testimony by saying that the Plaintiff’s “ambition of becoming a Banker has been completely shattered as no bank will engage his services or employ him”. She also testified under cross-examination that the instant action was instituted after the Defendant refused to reinstate him after his acquittal at the Circuit Court at the end of the criminal trial. She also said the publication has caused the family a lot of pain because the Plaintiff as a son of a former Diplomat who schooled in the UK he felt humiliated.

[23] Under cross-examination by the Defendant’s counsel, Madam Armooh said she stood by her testimony that the publication has damaged the Plaintiff because it has prevented him from securing jobs of his choice and preference. In further testimony the witness answered under cross-examination by Defendant’s counsel as follows:

“Q: You claim Devtraco which offered him employment expressed no further interest upon seeing the publication, is that not so?

A: Yes my Lord.

Q: I am putting it to you that there is nothing before this Court buttressing that claim.

A: Well I do not know what to say but he did not get the job. I went to look for the employment for him as the Devtraco man is my colleague...

Q: I am further putting it to you that your son did not suffer odium, ridicule and contempt as he claims because two days after the termination of his employment he gained full time employment with Devtraco Ltd and also worked with the National Service Secretariat as well as his current job with the Jospong Group of Companies.

A: As I said earlier he did not gain employment at Devtraco after they saw the publication in the newspapers. So then I made him go and do his national service as he had not done it. After his national service he gained employment at the National Service Secretariat, Then from National Service I helped him again employment at Jospong”.

[24] At the conclusion of the testimonies of PW1 and the Plaintiff himself, Mr. Armooh closed his case. At that stage, I made the following findings. They are that:

(a) Plaintiff’s evidence adduced through himself and his mother Diana Armooh is consistent with the pleadings filed.

(b) The testimonies of the Plaintiff and the witness are admissible, credible and relevant to the claim of the Plaintiff and the defence it set up to the Defendant’s counterclaim.

[25] How then did the Defendant Bank contest the Plaintiff’s claim and to what extent did Defendant establish on the balance of probabilities its case for the counterclaim it set up against the Plaintiff?

[26] In ADJETEY AGBOSE and ORS V. KOTEY and ORS [2003-2004] SCGLR 420 Brobbey JSC described the position of the Defendant in defence to a claim as follows:

“A litigant who is a Defendant in a civil case does not need to prove anything. The Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time, if the Court has to make a determination of a fact or of an issue and that determination depends on evaluation of facts and evidence, the Defendant must realise that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour”

Defendant’s Evidence

[27] The evidence of the Defendant was adduced through its employee Marie-Ann Ocansey, the Manager for Compensation and Benefits of the Defendant’s bank. She testified that he has worked with the bank for about eighteen years. She relied entirely on the 48 paragraph witness statement filed based on the pleadings to the effect that the Defendant’s relationship with the Plaintiff began on 28th May, 2007 when the Bank “received a letter from Central University College, Accra requesting that Daniel Armooh does an internship with HFC Bank as part of its requirements for an award of a Bachelor of Science Degree on Banking and Finance”. A copy of the letter was tendered at trial as Exhibit “1”.

[28] According to the witness by a letter dated 31st May 2007, Defendant Bank acceded to the request from Central University College and offered the Plaintiff a vacation internship with its Legon Branch, Accra from 16th July 2007 to 31st October 2007, which offer according to the witness the Plaintiff accepted. A copy of the offer letter was tendered as Exhibit “2” at trial. It is the further case of the Defendant that after graduating from the Central University College, the Plaintiff applied to the Bank for employment. According to Ms. Ocansey by letters dated 27th February 2008 and 13th March 2008, the Bank offered the Plaintiff employment as a clerk assigned to its Ridge branch in Accra with a gross per annum of GH¢3,572.00 and the Plaintiff accepted the offer of employment. Copies of the letters were tendered at trial as Exhibits “3” and “4’.

[29] According to the witness the ”the terms of Daniel Armooh’s employment with HFC Bank Ghana Limited were governed at all material times by the provisions of the Labour Act, 2003 (Act 651), HFC Bank’s Rules and Conditions of Service dated 21st February 2007 as well as directives from HFC Bank’s Board of Directors”. A copy of the Bank’s Rules and Conditions of Service dated 21st February 2007 was tendered as Exhibit “5”. Ms. Ocansey further said Exhibit 5 was given to the Plaintiff to ensure that he was well versed in its Branch operations. It is also the case of the Defendant that the Bank paid for the Plaintiff to attend other programmes such as Counterfeit Detection, Basic Banking and Cashiering, knowledge in core values, code of conduct, standards of excellence and corporate governance issues among others. Exhibits 6, 7 and 8 were tendered to support the testimony.

[30] It is the further case of the Defendant that “despite the training and the practical experience gained by Daniel Armooh on the job, on 8th July 2009, Daniel Armooh opened an account-004094781012 for a new customer of HFC Bank Ghana limited by name Dodico Limited in clear violation of the provisions of HFC Bank Ghana Limited’s Operations Manuel on the requirements for opening an account for a new customer”. According to Ms. Ocansey the breach was that:

“in clear violation of the provisions of HFC Bank Ghana Limited’s Operations Manuel on opening a current account for a new customer, opened an account for Dodico Limited when the resident permit of the Managing Director of the Company had expired, there was no introductory letter for the Company and the Company’s letter to the Bank requesting that an account he opened for it did not bear the official seal of the Company.

[31] The Defendant’s witness said the gross violation by the Plaintiff of the provisions of HFC Bank Ghana Limited’s Operations Manuel on account opening requirements paved the way for fraud to be perpetrated on the Bank. The witness said “On 24th July 2009 the Operations Manager of the Ridge Branch of HFC Bank Ghana Limited received two Branch Settlement Advise through fax purporting to originate from HFC Bank Ghana Limited’s Accounts Department located within its head office at Ridge”. According to Ms. Ocansey “I am informed that the purported fax instructed the Ridge Branch of HFC Bank Ghana Limited to credit the account of Dodico Limited with the sums of GH¢246,719.32 and GH GH¢174,002.10 which the Ridge Branch did. The witness said it was later discovered that the Branch Settlement Advise was forged and had not originated from HFC Bank Ghana Limited’s Account’s Department”.

[32] The Defendant’s witness further testified that upon the discovery of the attempt to defraud the Bank of the total sum of GH¢420,721.42, same was immediately reversed from the Dodico Limited account upon the advice of Management of the Bank at the Ridge Branch. Ms. Ocansey further testified that the Bank lodged a formal complaint at the Adabraka Station of the Ghana Police Service since the incident occurred within its jurisdiction. She also said a similar complaint was lodged with the Bureau of National Investigations, Accra (BNI) because of the gravity of the offence. The witness further testified that “I am informed that on 30th July 2009, a Forensic Report issued by the Forensic Unit of the CID identified Daniel Armooh as the only probable person who could have written the details on the Branch Settlement Advice”.

[33] Ms. Ocansey confirmed that based on the complaint the Adabraka Police invited the Plaintiff to the Station for questioning on 30th July 2015. But she said “I cannot testify on what transpired between Daniel Armooh and the Police at the Adabraka Police Station since no officer of HFC Bank Ghana Limited was present when he was questioned by the Police”.

[34] According to the witness the Plaintiff was interdicted based on the Company’s Staff Rules and Conditions of Service because the Bank was conducting its internal investigation into the attempt to defraud it by Dodico Limited. A copy of the Interdiction letter dated August 4, 2009 was tendered as Exhibit “11”. The witness said the interdiction was done to prevent the Plaintiff from interfering with both internal and external investigations.

[35] The witness further told the Court that “I am informed that the Ghana Police Service after their investigations into the matter established a prima facie case against Daniel Armooh and the Managing Director of Dodico Limited and subsequently arraigned them before the Circuit, Accra on various charges”. She also confirmed that based on the Report from the BNI and the prima facie case that had been established by the Ghana Police Service against the Plaintiff, Management terminated his employment by a letter dated 30th September 2009. A copy of the termination letter was tendered as Exhibit “12”. Ms. Ocansey further testified that the Bank paid the Plaintiff “the entitlement due him upon termination by the letter dated 20th October 2009. A copy of the letter confirming the payment dated 20th October, 2009 was tendered as Exhibit “13”.

[36] The witness also confirmed that the publications complained of by the Plaintiff were made by the Plaintiff Company. According to her the publications were made with “the sole intention of repudiating any claim or loss that may be suffered by HFC Bank (Ghana) Limited or any of its customers should Daniel Armooh continue to hold himself out as an employee of HFC Bank (Ghana) Limited after his dismissal”. Ms. Ocansey further confirmed that upon an application made by the Plaintiff the Bank’s officers were convicted of contempt by this Court differently constituted. The witness’ further testimony was that “I am informed that the only reason why HFC Bank (Ghana) Limited has till date not been able to comply with whatever orders that may have been made by the High Court, Accra is because till date HFC Bank (Ghana) Limited has not been able to obtain a copy of the ruling delivered by the Court from its Registry”.

[37] The Defendant’s witness denied that the Plaintiff has been exposed to ridicule, contempt and odium. This is because according to the witness the Plaintiff has since secured a permanent job “with the Public Service – through the National Service Secretariat during the pendency of the criminal case against him and another permanent employment with the Private Sector – Zoomlion Ghana Limited immediately the Criminal Suit against him ended”. She also told the Court that “I deny that Daniel Armooh has been exposed to ridicule, contempt and odium based on various postings from him on social media”. It is the case of the Defendant that the instant action was instituted because the Bank declined a request by the Plaintiff through his lawyer to restore him to his former position after he was discharged by the Circuit Court. A copy of the letter was attached as Exhibit “15”.

[38] The other evidence of the Defendant’s witness are contained in the witness statement filed together with the exhibits marked in the record as Exhibits “16 to 20. Finally, Ms. Ocansey testified that “I am informed that on 31st August 2012 Daniel Armooh paid (GH¢400.00) Four Hundred Cedis out of his indebtedness and the sum of GH¢823.10 (Eight Hundred and Twenty Three Cedis and Ten Pesewas) remains outstanding from 31st August 2012 till date”. Based on all of the above testimony the Defendant urged on the Court to dismiss the Plaintiff’s suit and grant the Defendant’s Counterclaim.

Findings of Fact and Evaluation of Evidence:

[39] From the pleadings filed by the parties and after having heard the testimony of the witnesses at trial and the exhibits filed, and also having read the written submissions filed by Counsel, I make the following findings of fact having subjected all the evidence on record to critical evaluation and analysis. It is my finding that:

i) The Plaintiff was arrested on or about July 24, 2009 by the police as a result of a complaint lodged by the Defendant Bank. After the arrest, the Plaintiff was charged and later arraigned before the Circuit Court. After the trial he was acquitted and discharged by the Court on June 20, 2012.

ii) The Plaintiff was interdicted on August 4, 2009 and later terminated by a letter dated September 30, 2009 based on the incidents which led to his arrest, charge and prosecution. I also find as a fact that the Plaintiff was paid the sum of GH¢846.60 as provident fund refund and other entitlement by the Defendant Bank;

iii) I also find as a fact that the Defendant made two public disclaimers on October 22, 2009 and October 28, 2009 in the Ghanaian Times and Daily Graphic respectively when the criminal trial was still ongoing.

iv) I further find as a fact that on November 4, 2009 the High Court presided over by Ofosu-Quartey J (as he then was) convicted the Managing Director, Mr. Asare Akuffo and another person of Contempt of Court. The Court adjourned to November 5, 2009 to give its reasons. See Exhibit “G”

v) I also find as a fact that the Defendant Company through its lawyers filed an appeal against the conviction at the Court of Appeal on November 5, 2009 as per Exhibit “E”. but there is no evidence as to what happened after the filing of the Notice of Appeal,

vi) I find as a fact that the Plaintiff paid off the debt he owed the Defendant which was the basis for the Counterclaim by a cheque deposited on June 4, 2018 and cleared on June 6, 2018. The Defendant’s witness confirmed same when she was cross-examined on June 11, 2018.

[40] I now proceed to consider the issues set down but I wish to re-state them because in my view, all the issues can be resolved under the following main issues:

1. Whether or not the Plaintiff’s arrest, charge and prosecution was instigated by the Defendant Company?

2. Whether or not the termination of the Plaintiff’s employment based on the September 30, 2009 incident was wrongful?

3. Whether or not the publication of the disclaimers by the Defendant has caused the Plaintiff emotional distress and loss of economic/professional opportunity?

4. Whether or not the Plaintiff is entitled to his claim?

To my mind, the resolution of the above main issues shall dispose of all the issues raised and in particular the additional issues filed. I intend to resolve the issues raised in the manner set out above in accordance with the law and the evidence adduced at trial.

Issue 1

[41] It is trite knowledge that the police prosecute all criminal offences at the various courts in the name of the Attorney General. In this case, I will hold that a complaint was lodged with the police by the Defendant Bank and the police performed their lawful duty by charging and prosecuting the Plaintiff at the Circuit Court after their investigations. The prosecution however ended in the complete acquittal and discharge of the Plaintiff. Based on the law that does not make the Defendant Bank liable for the arrest and prosecution of the Plaintiff. The Defendant Bank did no more than request an investigation into the matter of the attempted fraud. See the case of MUSA and ANOTHER v. LIMO WULANYA and ANOTHER (1975) 2 GLR 290 C.A and also ONOGEN v. LEVANTIS and CO. LTD (1959) GLR 105 at holding 2 where Adumoah Bossman J held that:

“a person reporting a theft to the police does not become answerable for malicious prosecution as himself the prosecutor unless he has authorized or requested the prosecution on the particular charge brought”.

[42] The same principle was followed in the case of WAGBA v. DZOGBETSI (1992-93) GBR 398. The Court applied the principle enunciated in the Onogen v. Levantis and Co. Ltd Supra and further stated and directed that in an action for false imprisonment actual direction and authorization must be proved. In this case, Plaintiff in his evidence did not lead any evidence on how the Defendant Bank instigated and directed his arrest, imprisonment and prosecution except the fact that a complaint was lodged and according to him he was “accosted and asked to accompany an employee of the Bank” who put him in a car and drove him to the police station. In fact there is no evidence before the Court as to the role the Defendant Bank Officers played if at all in the prosecution apart from some officers who testified as prosecution witnesses. In my opinion, based on the law the failure to lead evidence on the role of the Defendant Bank’s officers is fatal because testifying as prosecution witnesses only is not good enough to establish the claim for unlawful arrest, malicious prosecution as alleged and claimed by the Plaintiff. Consequently the Plaintiff’s claim for damages for unlawful arrest, false imprisonment and malicious prosecution is dismissed.

I now turn to the second issue set down above:

[43] Wrongful dismissal and unlawful termination of a contract of employment are two separate and distinct legal terms with different consequences and implications. Even though they both result in the termination of the employee’s contract of service, the conditions and circumstances that may trigger a dismissal or termination are always different. Each of them is unique and creates its own cause of action. I cannot envisage a situation where an employee would be wrongfully dismissed and at the same time have his contract of employment unlawfully terminated. That being said, in the instant case, based on the evidence it seems to me that the two legal terms are used interchangeably by the Defendant. Be that as it may, in this case the Plaintiff who is no longer in the employment of the Defendant Bank contends that his dismissal was wrongful. He is therefore in Court with the Defendant Bank for their dispute to be settled according to law.

[44] That there was a contract of employment between the parties before it was terminated by the Defendant cannot be put in doubt. However, it should be noted that as a result of the events of July 30, 2009 the Plaintiff was first interdicted on August 4, 2009 and later terminated on September 30, 2009. Both letters are in evidence as Exhibits “A” and “C”.

The content of Exhibit “A” is as follows:

“Re: INTERDICTION

Pending the investigations into the on-going case within the Ridge Branch and, in line with the provisions of the Staff Rules and Conditions of Service, Management has decided to interdict you with immediate effect and until further notice.

Management would also like to inform you in accordance with Paragraphs 4.2 b (v) that, you should not leave the area of your duty station without authorization of the Managing Director.

By a copy of this letter and in line with the Bank’s policy on interdiction, the office of the Financial Controller is informed that you shall be entitled to only half of your basic salary for the period of interdiction.

Thank you

Yours sincerely,

(SGD.) Akwete Akita

(Executive Director (F&I)”

The Content of Exhibit “C” is also as follows:

“Re: DISMISSAL

Reference is made to our letter on “Interdiction” dated August 4, 2009

In line with paragraph 4.10.2 of the Bank’s Staff Rules and Regulations on Termination of appointment, Management has decided to dismiss you with immediate effect.

Your dismissal is without prejudice to legal measures the Bank may resort to in connection with the above or any other acts that may be discovered.

You are requested to settle your loan indebtedness (if any) to the Bank within one month, from the date of this letter failing which, appropriate action would be taken by the bank.

Kindly ensure that you prepare and submit a comprehensive handing over notes to your supervisor with a copy to HR by close of work Friday, October 2, 2009. You are also requested to hand over your staff ID card, complimentary cards; and any other Bank property in your possession to the HR Department.

The Office of the Financial Controller is requested to effect payment of any entitlement due you less any monies you owe the Bank,

We wish you well in your future endeavours

Yours sincerely,

(SGD AKWETE AKITA

(EXECUTIVE DIRECTOR)”

[45] Indeed, on this ground the issue in dispute between the parties is whether the Plaintiff’s employment with the Defendant Bank was lawfully terminated. As I understand it, the Plaintiff’s contention is simply that his appointment was terminated wrongfully because the termination was without justifiable cause and not in accordance with the terms of his employment and therefore unlawful. Lawfulness in this context means whether the termination is in accordance with the terms of the contract of employment or in accordance with any statute regulating employment in the country.

[46] It is important at this juncture, to look at the contract of employment which has now become contentious. It is the Letter of Appointment dated February 27, 2008, Exhibit “3”. To leave no one in doubt, I hereby state at Clause 11 titled “Termination”.

“Either yourself or HFC BANK (GHANA) LIMITED may terminate your employment at any time by giving the required notice in line with the labour law”.

[47] It is noticeable from the terms of the contract of employment quoted above, that either the Plaintiff and or the Defendant Bank could terminate the appointment by giving notice. No specific reason was required and or created by which the Plaintiff was to be terminated. There is common ground that the Plaintiff was charged with forgery and conspiracy to commit fraud but was acquitted by a Court of Competent Jurisdiction after trial. The question the Plaintiff is therefore asking and urging the court to answer is: why was his appointment terminated if he was not found guilty of any corporate offence.

[48] At Common Law an employer in terminating an employee’s contract of employment is not required to give reasons but give notice. The Common Law position has received judicial blessing in our jurisdiction. In the case of KOBI AND OTHERS v. GHANA MANGANESE COMPANY LIMITED [2007 – 2008] 2SCGLR 771, it was held by the Supreme Court in holding 3 that the traditional rule in employer-employee relationship ... is that in dispensing with the services of an employee, an employer is at perfect liberty to either give or refuse to give reasons.”

[49] It is also important to note, that the Labour Act, Act 651, section 17 did not alter the Common Law rule. Section 17 of Act 651 does not impose an obligation on either the employer or the employee to give reasons when any of them decide to bring their contractual relationship to an end. The only condition is the service of the requisite notice or payment of money in lieu.

[50] In the instant case, even though the Defendant Bank was not required to give reasons for the termination, it chose to give one to justify it. Reference was made to paragraph 4.10.2 of the Bank’s Staff Rules and Regulations – Titled Termination. The Staff Rules was tendered as Exhibit 5 by the Defendant. I have reviewed the said section. Subsection (a) states among others that:

“The employment of an employee of the Bank may be terminated for a number of reasons including (ii) – summary dismissal”

I note that based on the facts of this case and in particular reference to the Interdiction Letter of August 4, 2009 the other grounds stated under the clause are clearly not applicable.

[51] At Sub-section 4.4.1 of Exhibit 5, Summary Dismissible Offences are stated. It includes misrepresentation of Company information or confidential records; Dishonesty, deception, fraud or falsification of Bank records; Convicted of a serious criminal offence; Embezzlement of monies etc. To my mind, based on the facts of this case and the offences stated under Subsection 4.4.1, it is not difficult for one to look beyond at best fraud or falsification of Bank records and/or convicted of a serious criminal offence as the offences the Defendant may have had in mind when it terminated the Plaintiff’s employment. Again, it is important to note and reiterate that the Defendant did not specifically state so. This is what transpired though when the Defendant’s sole witness was cross-examined on June 11, 2018:

“Q: Exhibit “12” does not assign any reason for the dismissal, not so?

A: My Lord in paragraph 2 of Exhibit 2, it says “in line with paragraph 4.10.2...”

Q: So the reason for the dismissal is that management has decided to dismiss him, is that what you are saying?

A: Yes my Lord

Q: Now, I will refer you to Exhibit “5” that is the Conditions of Service. First let’s go to paragraph 4.4.1. Look at E, what does it say about conviction of a serious criminal offence, have you seen that?

A: Yes

Q: Go to 4.10.2 (VI) it says employee has been convicted of a criminal offence... not so?

A: Yes my Lord

Q: By your Terms and Conditions of Service you have disciplinary procedure, no so?

A: Yes my Lord.

Q: And that is outlined at page paragraph 4.4.3, headed penalties, it says “the following penalties may be...” have you seen that?

A: Yes my Lord

Q: Now, before the Plaintiff was dismissed he was put on interdiction, is that right?

A: Yes my Lord.

Q: Now, before the Plaintiff was dismissed he was put on interdiction, is that right?

A: Yes my Lord

Q: And after that he was sent to court on charges of fraud and others.

A: Yes my Lord

Q: Now before the trial terminated or concluded you decided to dismiss him, true or false?

A: True

The above exchange clearly confirm that the Management of the Defendant Company decided to dismiss the Plaintiff based on the Staff Rules and Conditions, The witness Ms. Ocansey also admitted that the dismissal was before the conclusion of the trial for fraud and forgery.

[52] In the written submission to the Court, the Defendant Counsel, Mr. Awude stated that the list for which the Defendant can be terminated under Section 4.10.2 of Exhibit 5 is not exhaustive hence the use of the phrase “may be terminated for a number of reasons including the following”. According to Counsel because banking is based on trust “where specimen handwritings of employees of the Defendant have been sent to a handwriting expert who has identified the Plaintiff as the one who authored the advise slips that were used in the attempt to defraud the Defendant Bank, the Defendant had no option than to terminate the employment” pursuant to Section 4.10.2.

[53] According to learned Counsel it was within the Defendant’s right to terminate the appointment based on the Police CID Forensic report. But what and where is the so-called “forensic report relied on by the Defendant Bank against the Plaintiff”? The Court finds that even though the Defendant pleaded that a Police CID Forensic Report indicated that the Plaintiff was the likely culprit no such report was tendered at trial and or disclosed to the Plaintiff. The witness repeated same and Counsel has also relied on same for hi submission but the Court was left in a quandary as to what it is all about. The Court has no idea what this so-called forensic report is about. More importantly, the termination does not mention the forensic report at all. It stands to reason that the termination was not founded on any such report. Consequently, it is my holding that the Defendant’s continuous reliance on the so-called forensic report is undermined by the acquittal and discharge by a court of competent jurisdiction after hearing the evidence.

[54] In any case, the general rule is that where a party in a civil suit raises an issue which is essential to the success of his claim, he assumes the onus of proof, whether it is the Plaintiff who asserts a fact or the Defendant. Discharging this burden requires that a party goes beyond merely repeating the averments in his pleadings on oath and produce evidence of other facts and circumstances from which the Court can ascertain that what he claims is true. See MAJOLAGBE V. LARBI [1959] GLR 190, and also ZABRAMA V. SEGBEDZI [1991] 2 GLR 221. Section 12(1) of the Evidence Act, NRCD 323 gives a different dimension to the above rule. It states that in a civil suit, the burden of persuasion requires proof by a “preponderance of probabilities” as defined in Section 12(2) 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 evidence of a fact is more probable than its non-existence”.

[55] The Supreme Court has also explained in the case of OKUDZETO ABLAKWA (No. 2) v. ATTORNEY GENERAL and ANOTHER [2012] 2 SCGLR 845 at 867 that

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence...”

See also BANK OF WEST AFRICA LTD V. ACKUN [1963] 1 GLR 176.

[56] In the instant case, it is clear that for the Defendant to succeed in justifying the reason given for terminating the Plaintiff’s appointment without notice, it assumes the onus of proving the assertions that the Plaintiff misconducted himself. From the record even though the Defendant’s witness conceded that there is a disciplinary procedure to follow; in this case it was not followed. Therefore in my opinion, the Defendant had the duty to establish the requisite degree of belief in the mind of the Court by adducing cogent evidence to prove that what was alleged in the pleadings with regards to the said forensic report which established that the Plaintiff attempted to defraud the Bank. The Defendant woefully failed to prove the existence of the forensic report.

[57] Indeed, even if there exists a forensic report which indicted the Plaintiff and therefore suggested misconduct, the question is was the said misconduct proved against him? It is trite that whilst termination, dismissal and suspension are the remedies available to any employer in case there is misconduct on the part of an employee, only proven misconduct can be said to be the ground of termination of employment.

[58] As noted from the record and the Defendant’s evidence and the letter of termination, the Defendant contends that the Plaintiff was terminated based on Section 4.10.1 of Exhibit 5. To that extent and on the evidence it is the events of July 24 and/or July 30, 2009 which led to the Plaintiff’s arrest only that can be the basis for the termination. In my opinion the evidence of the Defendant regarding the Plaintiff’s role and guilt in the incident that led to his arrest and prosecution flies in the face of the principle of natural justice and the statute regulating employment currently in force in the Country. I am talking about the Labour Act, 2003 (Act 651). This is because there is no evidence as to how the Plaintiff’s alleged role was investigated and proved by the Defendant Bank.

[59] Section 15 of Act 651 titled —Grounds for Termination of Employment provides:

A contract of employment may be terminated,

(e) by the employer because of the inability of the worker to carry out his or her work due to ...

(iii) proven misconduct of the worker.

Further under PART VIII— titled Fair and Unfair Termination of Employment provides at Section 62— sub-titled Fair Termination that:

“A termination of a worker's employment is fair if the contract of employment is terminated by the employer on any of the following grounds:

(b) the proven misconduct of the worker”.

[60] I must admit that I have strained myself without success in a bid to come to terms with how the Defendant Bank concluded that the Plaintiff is guilty of the allegation of forgery and attempt to defraud made against him. From the record apart from the report to the police and the subsequent charge against the Plaintiff, there is no scintilla of evidence adduced by the Defendant as to how it investigated the incident and concluded that the Plaintiff forged the slips of the Bank. Assuming that the Defendant depended on the Police investigation to terminate the Plaintiff, the criminal trial resulted in an acquittal which to my mind undermined the validity of the results of the said investigation. The courts function in the criminal justice system as the laboratory in which investigation results are tested. Without the imprimatur of a court of competent jurisdiction, law enforcement conclusions cannot be necessarily said to be valid. Our jurisprudential history is replete with cases (even more serious than what obtains in the case at bar) in which law enforcement expressed confidence in the certainty of investigative results only to have these results unravel in court. The investigations therefore would not be adequate to support a termination on the grounds of criminality.

[61] Regarding the foregoing, it is imperative to note that from the record the only evidence with regards to any investigation regarding the incident is the Circuit Court trial. But, it is refreshing to observe that the learned Judge made a definitive statement regarding the Plaintiff’s (2nd accused) role as follows at pages 13 - 14 of the judgment. Her Honour stated:

“PW6, the investigator testified that he was charged with investigating a case of fraud. He was presented with two advice slips the first one with a face of 246,719.32 Ghana Cedis, The said value was written both in words and in figures. It was dated 24/7/2009. The second slip was dated as the former. But it had a face value of 174,002.10 Ghana Cedis. Both were to be paid into Dodico account owned by A1.

According to him “there I detected that there was a deal within the account office”. It was based upon this that I obtained hand writing and signature of some officers at the Bank for forensic examination. According to him, upon receipt of the report “it came to light that 2nd accused was the one who wrote the pay advice slips i.e. Exhibit “B and B1”.

I can’t stop wondering by which logic he could have inferred that the report was certain A2 wrote the slips. The report which he refers to is Exhibit “C”, the contents does not establish unequivocally that A2 was the originator of the pay slips in issue. It states in the first of its three observations in conclusion that “it is highly probable that only the producer of the hand writings on the Exhibits marked ‘D1 to D18” could have authored the handwritings on the two HFC Inter Branch Advise Slips marked “A1 and A2”. ..

He says the decision to charge A2 with the offences was based solely on the handwriting forensic examination report”.

The learned Judge went on with her analysis and stated that the decision to charge the Plaintiff herein as a front desk clerk was not justified. She stated at page 23 thus:

“I rule to acquit and discharge the second accused person on all counts of offences preferred against him, as prosecution has not been able to make a prima facie case against him on any of the counts”. [Emphasis Mine].

[62] Further, in the opinion of this Court it is important to state that in proving the alleged misconduct against the Plaintiff; it is imperative that the Defendant ought to have investigated and given the Plaintiff the opportunity to be heard. It should be noted that persons (in this case an employer) unto whom power is given to take decisions affecting life, rights and liberties of others must comply with the basic rules of adjudication. That is, the rule of natural justice has to be observed. It is a rule of natural justice that a person must be heard before he/she is condemned. In ABOAGYE v. GHANA COMMERCIAL BANK [2001-2002] SCGLR 797, Bamford-Addo JSC, had this to say:

“Natural justice is actually fair play in action and is applicable to the ordinary courts, adjudication tribunals and administrative bodies which have the power to adjudicate in disciplinary cases, and which make decisions affecting rights of other persons. In other words, the fundamental rules of natural justice include trial and strict adherence to the rules of procedure applicable to the proceedings”.

In this case, there is no evidence that the Plaintiff was heard before he was condemned, that is terminated. It is therefore my finding that the alleged misconduct was not proven against him and therefore the termination of his employment was wrongful.

[63] In the case of MORGAN AND OTHERS v. PARKINSON HOWARD LTD [1961] 1GLR 68, it was held in Holding 1 at page 69 that:

“in a claim for wrongful dismissal the plaintiff must prove the terms of his employment and then prove that his dismissal is in breach of the said terms, or that it contravenes some statutory provisions for the time being regulating employment.”

See also SARFO v. A LANG LTD (1978) GLR 142. Based on the facts I do hold that the Plaintiff has discharged the burden cast upon him.

[64] The last issue to deal with is the disclaimer publication published by the Defendant in the dailies and the effect or otherwise on the Plaintiff. In my opinion, it is important and desirable to set out in extenso the entire disclaimer published with the Plaintiff’s Photograph to give the context of the words complained of in this suit. It is as follows:

“The Management of the HFC Bank informs the General Public especially our esteemed customers that MR. DANIEL KWAME A. ARMOOH whose photograph is shown above has ceased to be in the employment of the Bank. Anyone who transacts business with him in the name of the Bank does so at his or her own risk”

[65] The publication was made in the course of the criminal trial in October 2009. As I understand it and from the record the Plaintiff herein took a serious objection to same and cited two officers of the Bank for Contempt. They were convicted by the Court and until that decision is overturned, they stand convicted.

[66] In this trial Ms. Ocansey who testified for the Defendant stated the main reason for the publication to be “the sole intention of repudiating any claim or loss that may be suffered by HFC Bank (Ghana) Limited or any of its customers should Daniel Armooh continue to hold himself out as an employee of HFC Bank (Ghana) Limited after his dismissal”. From the totality of the evidence on record and having reviewed the facts of the case and the timing of the publication it is my holding that clearly from the wording of the disclaimer and from the Defendant witness’ testimony the decision to publish the disclaimer was strategic, with the goal of undermining the reputation and integrity of the Plaintiff to the public. It is to be noted that at the time the Plaintiff was standing trial at the Circuit Court where the Defendant was the complainant. In my opinion and with due deference to the Defendant Bank and Counsel based on the facts of this case there was no justification for the publication.

[67] I say so because the first publication was made three weeks after the termination letter was written and delivered to the Plaintiff. There is no evidence that the Plaintiff who was only a front desk clerk was misrepresenting himself to the public vis-à-vis his relationship with the Defendant, to necessitate the publication in the manner it was made. Though the fact that the Plaintiff was not in the employment of the Defendant at the time is not disputed and therefore factual in substance, in the opinion of the court, the wording of the impugned disclaimer was ambiguous. The Defendant Bank placed the Plaintiff in a position where he had to explain to his friends and loved one the reasons for his termination in the employment of the Defendant even though the exact reason was not specifically stated in the termination letter given to him. I am startled by the Defendant’s witness’s insistence that the Plaintiff could not have been exposed to ridicule, contempt and odium simply because he secured employment elsewhere following the publication of the disclaimers. To my mind that cannot be the only variable for analyzing the consequences of the disclaimers on the Plaintiff and I doubt that the witness or any of the decision-makers at the Defendant Bank would appreciate having to explain themselves to loved ones under those circumstances.

[68] In my view whilst in some situations the publication of such a disclaimer may be justifiable, based on the facts of this case I hold the respectful opinion that it was not justified. In this case it is even worse that the Defendant concede that its officers were convicted for Contempt and also concede that some orders including the retraction of the publication was made but they did not comply on the grounds that they have not obtained the full reasons. The Court notes that it has been over six years since the conviction and the appeal filed. They clearly have refused to show the same sense of urgency with which they published the disclaimers and exhibited a clear disregard for the rule of law.

[69] The above finding notwithstanding, the Court is of the opinion on the other hand that the Plaintiff failed to establish on the balance of probabilities that the disclaimer has caused him economic and professional opportunities. The Plaintiff ought to be reminded that the basic rule in Court is evidence, it is not enough to state that due to the publications he was not hired by Devtraco and that his prospects in the Banking industry is affected. No scintilla of evidence was put before the Court to support the assertion. To that extent, he is only entitled to nominal damages for emotional distress because to my mind no citizen of this Republic’s biodata and photograph ought to be published in the dailies under those circumstances, especially when it is not done with the aim of apprehending a fugitive by law enforcement. In this case I have found and reiterates that the publication was done strategically to undermine the Plaintiff’s integrity and reputation and that is not acceptable.

Conclusion and Disposition:

[70] I do not think that I need to repeat it all over again that based on the evidence on record and the above analysis that the Plaintiff has been able to prove to the satisfaction of the Court that the Defendant did breach both the terms of his employment and the Labour Act. The reason for his termination being his alleged misconduct has not been proved by the Defendant to the satisfaction of the Court and therefore it is my conclusion that the Plaintiff’s termination was wrongful. That being the case I hold that the Plaintiff is entitled to some general damages.

[71] In awarding damages, I want to adopt the ratio decidendi and the approach adopted by Coussey J. (as he then was) in the old case of BLAY-MORKEH v. GHANA AIRWAYS CORPORATION (1972) 2 GLR 254 that damages should be awarded up to such reasonable time perhaps the dismissed party, the Plaintiff can very well find alternative employment. But it should be noted that the damages must be assessed as compensation to the Plaintiff for the loss he has may have sustained and not as punishment of the Defendant’s wrong in terminating the employment. In this case Counsel for the Plaintiff in his submission said “Plaintiff chances of obtaining employment in the banking or financial sector are simply none existent. Indeed the door has been shut. The Court must adequately compensate him”. In my view the submission is speculative because it is not based on the facts and the evidence. Though it is a notorious fact that gainful employment is difficult to come by in contemporary times in this country, the evidence is that the Plaintiff secured a job shortly after the termination by the Defendant Bank has been working with the Jospong Group for about six years now even though he says it is not his dream job.

[72] This being a contract of employment and having found that the Defendant wrongfully terminated the Plaintiff’s employment and violated the Labour Act because the allegation of misconduct was not proven, in awarding damages, the principle is to place the Plaintiff as far as money could do so in the position he would have been but for the breach. See ROYAL DUTCH AIRLINES (KLM) v. FARMEX LTD [1989-90] 2GLR 623, SC. In this case it should be noted that the Defendant could have terminated the Plaintiff without giving reasons but with notice.

[73] From the evidence the Plaintiff was paid his entitlements under the Defendant’s Provident Fund and other entitlements and he only paid the debt he owed only in June of 2018 when the trial was just about completing. Taking all that together therefore, in my view, the circumstance of this case demands that general damages in the amount of, GH¢15,000.00 should be an adequate award for the Plaintiff's wrongful termination/dismissal by the Defendant Company. I shall also award Plaintiff damages of GH¢15,000.00 for the publication and in particular the Defendant’s refusal to retract same though ordered by a Court of Competent Jurisdiction to do so. My decision is not based on the rightness or otherwise of the conviction but I am of the view that Court orders are to be obeyed and complied with even if one does not agree with same. Plaintiff’s cost shall be assessed at GH¢12,000.00

[74] With regards to the Counter claim I hold that the Defendant’s evidence was consistent with its pleadings on the point and the Plaintiff also conceded same and went ahead to pay the loan in the course of the trial. The Counterclaim is therefore GRANTED though the payment of the principal sum is moot. That notwithstanding, I think the Defendant is entitled to interest based on the law since the money was not paid until the demand was made. I shall therefore award interest to the Defendant on the principal amount endorsed on the Writ of Summons from the date of filing of the statement of defence and counterclaim until the date of final payment – being June 6, 2018.

[75] I cannot conclude this judgment without expressing my admiration for both Counsel in the way they comported themselves and the civil manner the trial was conducted. Both Counsel deserve my commendation.

SGD

KWEKU T. ACKAAH-BOAFO

JUSTICE OF THE HIGH COURT

COUNSEL

KOBINA FOSU FOR THE PLAINTIFF

HANS AWUDE THE DEFENDANT