DR. WALTER AFFO V. UNIVERSITY OF GHANA

JUDGMENT 

INTRODUCTION 

Per the writ of summons dated 1st October 2013, the Plaintiff claimed against the Defendant as follows:  

1. A declaration that the Defendant‟s purported termination of the Plaintiff‟s job as a lecturer is unlawful and contrary to due process of law. 

2. A declaration that the Defendant‟s reasons for the purported termination of Plaintiff‟s job and circulating the same to the members of the University community  have caused injury to Plaintiff‟s reputation and image. 

3. An Order that the Defendant pays Plaintiff his unpaid salary together with all  entitlements due him from August, 2013 to date of final judgment. 

4. General damages for unlawful termination and injury to Plaintiff‟s reputation. 

5. An Order that the Defendant should unconditionally restore the Plaintiff‟s status quo ante as a lecturer. 

6. Perpetual injunction restraining the Defendant from terminating the Plaintiff in like  manner.  

On 8th October, 2013, the Defendant entered appearance, through its Counsel, to the  writ and on 22nd October, 2013 filed its statement of defence. This triggered a reply  being filed by the Plaintiff on 6th of November, 2013. The Plaintiff on the 17th July 2014, filed an amended statement of claim with the leave of the Court. This also triggered an  amended statement of defence from the Defendant on the 2nd of September 2014. A  further amended statement of defence was filed on behalf of the Defendant on the 31st of May 2018.

 

THE CASE OF THE PLAINTIFF 

In his amended statement of claim, the Plaintiff describes himself as a lecturer among  other tasks and assignments in the Chemistry Department of the Defendant University.  According to the Plaintiff, by custom and practice of the Defendant University, particularly as regards the scarcity of full-time lecturers for the physical sciences, the  appointment of lecturers is renewed except on grounds of grave professional  incompetence or professional misconduct. The Plaintiff continues that he discharged his  duties at all times of his lectureship at the Defendant's institution with due competence and professionalism and avers further that as part of his work as a lecturer, he, together other lecturers, solicited for funds and resources for the Department since the  Defendant required faculty members to pursue rigorous research in their areas of  expertise and which also is a ground for promotion. 

The Plaintiff states also that upon being engaged as a lecturer in the Defendant's  institution in its Chemistry Department, the Department was under resourced in that it did not have equipment and sufficient funds for critical research in the physical  sciences.  

It is the case of the Plaintiff that despite the absence of procedure from the Defendant to  solicit for funds to conduct his research, he successfully used his own initiatives,  resources and facilities to secure three projects for the Department worth several  thousands of Ghana Cedis, including creating two laboratories, purchasing and  installing science instrumentation and training two post-graduate students in  specialised fields. The Plaintiff further contends that the Defendant did appreciate the  funds which he attracted to the institution. That as a sign of its appreciation, the  Defendant paid him honorarium and allowances from the funds received from  Kasapreko Limited, Export Development and Investment Fund for research initiatives  and Bio-Tropical Products.  

According to the Plaintiff, on or about the 15th of January, 2013, he submitted his  application for the renewal of his contract as a lecturer with the Defendant, following a  request to do so by the Defendant. To the Plaintiff, this is as a mere formality. The Plaintiff contends however that the Defendant in a letter dated 28th August 2013, refused to renew his appointment upon the ground that the Plaintiff had engaged in  financial impropriety that had dragged the Defendant's name into disrepute contrary to  the Defendant's policy and renewal of contracts approved in February, 2013, but  circulated in August 2013.

The Plaintiff contends further that he caused his lawyers to deny the allegations and  demanded further that he be restored to his status quo ante, but the Defendant refused  same contending further that it was within its right to do so even without giving any  reason. It is the case of the Plaintiff that when an employer decides to terminate an  employee's contract with a reason, the reason must be in tune with law and must  accord with due process, which the Defendant failed to observe. 

The Plaintiff continues that the reason for the Defendant terminating his contract, which same was circulated, caused his colleagues in both private and public institutions and  other associations, to which he is a member, to look at him with scorn and suspicion as  a dubious character. Plaintiff contends further that his said termination by the  Defendant undermines the Defendant's own object to recruit adequate and competent lecturers and researchers to build the needed manpower in the sciences contrary to the  Code of Conduct for Academic Senior Members dated March 2011and the Statutes of  the University dated March 2004 as well as Papers for the recruitment of competent and  adequate researchers for the Defendant dated 2011. 

It is Plaintiff‟s case further that the termination was informed in part by a vicious and unconscionable belief and vile propaganda that he is a political activist for which he  referred to a suit in which he challenged the validity of the 2013 UTAG elections to elect  UTAG executives in Suit No. AC11/01/14. According to the Plaintiff, the Defendant  impressed upon him to withdraw same but he remained adamant.  

The Plaintiff narrated further that the Defendant had unjustly held on to his salary and  other entitlements since the month of August, 2013 to date for the reasons aforementioned. He contends that the Defendant's action has caused him to suffer  substantial financial loss as well as injury to his image, reputation and health. It is therefore the case of the Plaintiff that Defendant‟s conduct sins against Articles 12 (2), 17 (2) and 17(3) of the Constitution of the Republic of Ghana, 1992, hence the reliefs  he claims as endorsed on the writ of summons. 

THE CASE OF THE DEFENDANT  

The Defendant denies the material allegations contained in the Plaintiff‟s amended  statement of claim in its amended statement of defence. According to the Defendant, the  Plaintiff was appointed a lecturer in its Department of Chemistry effective 15th August 2007 and the appointment naturally ended on the 31st of July 2013. The Defendant denied that it is its custom for it to renew the appointments of lecturers except on  grounds of grave professional incompetence or professional misconduct as contended  by the Plaintiff. The Defendant again denied that the Plaintiff at all times material  discharged his duties with it with professionalism and competence. 

The Defendant continues that on at least one occasion, the Plaintiff misconducted  himself in the discharge of his work and in February 2013, the head of Department of  Chemistry, after holding an emergency departmental meeting, set up a committee to  investigate the Plaintiff's behavior. According to the Defendant, in March 2013, the head  of the Department of Chemistry of its institution wrote a letter to the Vice-Dean of the  Faculty about the Plaintiff's unauthorised activities in the Department and when same  got to the attention of the Vice-Chancellor and the school's management, they directed  the Dean to set up a committee to investigate the matter. That a committee was duly set  up which submitted its report. The Defendants adds that in July 2013, disciplinary proceedings were to be held in relation to the Plaintiff's misconduct. However, the  proceedings did not commence as the Plaintiff's contract expired at the end of July 2013.  According to the Defendant, even though the head of the Chemistry Department  recommended the renewal of the Plaintiff's appointment, same as before, the Defendant  became aware of the Plaintiff's activities in February 2013 and that did not imply that the Defendant had approved that the Plaintiff's appointment be renewed. The  Defendant also denied that it has at any time sanctioned any fund-sourcing activity undertaken by the Plaintiff and contends that it had laid down procedures regarding  the sourcing of funds for research and therefore, the Plaintiff misconducted himself for  independently sourcing for the funds without authorisation from it. 

The Defendant further contends that the funds received from Kasapreko was an initiative of the former Dean of the Faculty of Science, Prof Rodriquez and Dr. I. v. Oppong, who happened to be a personal friend of the Managing Director of Kasapreko  and not through any initiative or preliminary work or otherwise of the Plaintiff.  

Although the Defendant admits receiving the Plaintiff's application for renewal of his  contract and even though the grounds referred to by the Plaintiff were stated in its  response to the Plaintiff's letter for renewal, they were not germane to and were of no  consequence to the Defendant's decision not to renew the Plaintiff's contract which had  naturally ended on 31st July, 2013.  

It is the position of the Defendant that the Plaintiff was not entitled to any emoluments from it. The Defendant further states that its procedures for renewal of contracts of  employment are based on dedicated procedures and that the renewal of contract was  not a mere formality. 

The Defendant contends further that the Plaintiff without any authority or sanction,  forged letterheads of the Department of Chemistry where he worked and engaged in surreptitious contracts with third parties for his personal gain, resulting in exposure of the Defendant to possible contractual obligations it was not part of.  To the Defendant, the Plaintiff's employment with it naturally came to an end and that  at all times, it complied with the dictates of the Constitution of the Republic of Ghana,  1992. 

The Defendant finally states that it cannot be liable for whatever losses or injury that  has occasioned the Plaintiff. That the Plaintiff is not entitled to any of the reliefs sought. 

ISSUES FOR TRIAL 

At the application for directions stage, this Court differently constituted set down the  following issues for trial:  

1. Whether or not Plaintiff has been a lecturer in the Chemistry Department of the  Defendant since August, 2007. 

2. Whether or not by custom and practice the appointments of lecturers are renewed except on grounds of grave professional incompetence or professional misconduct. 

3. Whether or not Plaintiff at all material times discharged his work with due  competence and professionalism to the benefit of the Defendant  

4. Whether or not Plaintiff as a lecturer, was required to solicit for resources for its under resourced Department for rigorous research in his area of expertise. 

5. Whether or not the Defendant gave Plaintiff any procedures for soliciting for funds for research. 

6. Whether or not Plaintiff used his own initiatives, resources and facility to secure  projects and facilities for the Department of Chemistry of the Defendant.  

7. Whether or not the Defendant sanctioned Plaintiff‟s preliminary work, processes  and procedures for soliciting for funds  

8. Whether or not Plaintiff's submission of his application for the renewal of his contract was a mere formality by the practice and custom of the Defendant. 

9. Whether or not Defendant's sole grounds for refusing to renew Plaintiff's contract, it  being that Plaintiff had engaged in financial impropriety that has dragged the  Defendant's name into disrepute was true.  

10. Whether or not Plaintiff's image and reputation was injured when the Defendant  circulated notices for the alleged reason for Plaintiff's purported termination to  other members of the University Community. 

11. Whether or not the Defendant's purported termination of Plaintiff's contract is  unlawful and made mala fide contrary to law and procedure.

12. Whether or not the Defendant's refusal to grant Plaintiff his salary and other  entitlements since the month of August, 2013 has caused him hardship. 

13. Whether or not the contract of the Plaintiff was terminated by the Defendant or the  contract ended naturally. 

14. Whether or not the Defendant by its own regulations ought to give a notice of 6  months before terminating the Plaintiff's appointment. 

15. Whether or not the Plaintiff was invited by the Defendant's Disciplinary Committee  for Senior Members for a hearing on a contract entered into on behalf of the  Defendant's Department of Chemistry by the Plaintiff without the consent of the  Defendant. 

16. Whether or not the Defendant's Disciplinary Committee for Senior Members made  adverse findings and recommendations against the Plaintiff. 

17. Whether or not the Plaintiff was authorised to source for funds for the running of  the Defendant‟s Department of Chemistry. 

18. Whether or not the Defendant had approved any continuum of appointments spanning 15 years before any appointment can be terminated. 

19. Whether or not the Defendant received any grants from Kasapreko Company  Limited and the Export Development and Investment Fund (ED1F) through the  efforts of the Plaintiff.  

20. Whether or not Plaintiff misconducted himself during his tenure as a lecturer at the  Defendant‟s Department of Chemistry. 

21. Any other issues arising from the Pleadings  

ANALYSIS  

In the Supreme cases of FATTAL VRS: WOLLEY[2013-2014] 2 SCGLR 1070 and MRS. VINCENTIA MENSAH and ANOR VRS: NUMO ADJEI KWANKO II [2017] DLSC  2601, the Supreme Court has held that a court is not to be confined to the issues set  down for trial but can set any relevant issues that it deems germane as arising out of the  pleadings, although the Court should not discard any relevant issue as set down for  trial. About twenty (20) issues have been set down for trial by this Court differently  constituted. Some of these issues are repetitive in character and so I do not intend to  take each of them in turn. I shall analyse such repetitive issues together.  

Hence, I shall proceed first to interrogate issue 11 which I find to be the pivot of the  instant suit:  

WHETHER OR NOT THE DEFENDANT’S PURPORTED TERMINATION OF THE PLAINTIFF’S CONTRACT IS UNLAWFUL AND MADE MALA FIDE CONTRARY  TO LAW AND PROCEDURE. 

In this suit, is it the case that the Plaintiff's contract naturally came to an end on the 13th of July 2013, as contended by the Defendant, or that there was a subsisting contract of  employment which was cut short in the course of time by the Defendant? An affirmative answer in support of the former question will render wholly  inconsequential the effect of "Exhibit T", the letter authored by the Defendant's then  Vice-Chancellor refusing to renew Plaintiff's contract on grounds of "serious financial  impropriety‟ This is because the right to renew a contract which has come to an end lies  solely within the discretion of the employer for which the latter cannot be compelled to  do so.  

It is the case of the Plaintiff, that the Defendant ordinarily ought to have renewed his  contract with it and it is only upon proven professional misconduct that the Defendant  can refuse any such renewal. According to the Plaintiff, it has never been guilty of any  professional misconduct that will warrant the failure of the Defendant to renew his  contract. It is therefore the case of the Plaintiff that the Defendant terminated his  employment contract, for which same is unlawful and not in line with due process of  law.  

In defense, the Defendant contends that the Plaintiff‟s contract naturally ended. Hence,  same cannot even amount to a termination. According to the Defendant, it was not even  obliged to assign reasons for the failure to renew the Plaintiff‟s contract. It is the view of  the Defendant that in any event, the Plaintiff indeed was guilty of „serious financial  misconduct. Hence, it was justified in not renewing his contract with it.  

I have decided to interrogate this issue first, for same will ease the resolution of some of  the other issues and or render yet others otiose. 

In resolving this issue, I need to point out at the onset that one can only talk about  termination of an employer-employee relationship when the relationship subsists. Upon the expiration of the employment contract when the contract has automatically come to  an end, one cannot talk about unlawful termination of the contract. At pages 30 and 31 of the Defendant‟s Address, the Defendant relied on cases such as TEACHERS’  PENSIONS AGENCY VRS: HILL (1998) 4 ALL ER 865, WILSHIRE COUNTY COUNCIL VRS: NATIONAL ASSOCIATION OF TEACHERS IN FURTHER  EDUCATION VRS: GUY (1980) ICR 455 as well as ROBERT ANSAH VRS:  CHIRANO GOLD MINES LTD. (CONSOLIDATED) UNREPORTED SUIT  NO.H1/27/08 DATED 17/07/08) and l cannot but agree with the principles therein.  Indeed as per the decision in ROBERT ANSAH VRS: CHIRANO GOLD MINES LTD.  (CONSOLIDATED) supra, "The Respondents employment automatically terminated  on the expiry of the fixed contract and they could not have sued on the contract of  employment that did not exist‟. It is from this logic that I appreciate the contention of  the defence that the Plaintiff‟s contract naturally came to an end and hence same cannot  amount to termination."  

From Exhibit „A‟, The Plaintiff‟s appointment letter dated 17th of April, 2008, the  Plaintiff‟s probative period commenced 15th August, 2007 and same was for a period of  two years subsequent to which the appointment was to continue till 31st July. 2013.  Further, per paragraph 4 of Exhibit „A‟, it was the Plaintiff‟s ‘responsibility to ensure  that, at all times, you have a valid contract of employment with the University. (My  emphasis). 

The overwhelming and uncontroverted evidence before the Court is that the Plaintiff‟s  contract with the Defendant came to an end on 31st July 2013 and that same was not  renewed. On 5th April, 2017, at page 1 of the record of proceedings, the Plaintiff under cross examination testified as follows: 

 Q: Exhibit A, your appointment letter indicated that you will be on probation for 2   years. Not so? 

 A. Yes. 

 Q. And that if you are confirmed, your appointment will continue until 31st July,   2013. Not so? 

 A. Yes. 

 Q. So then your appointment was for a specific period? 

 A. Yes. 

The fact that the Plaintiff‟s contract had come to an end as at 31st July, 2013, is also  buttressed by Exhibit „E‟, the letter from the Defendant notifying it to renew its contract  and the response of the Plaintiff and all his efforts to get his contract renewed. From all  indications therefore, at the time the Defendant served the Plaintiff with Exhibit „T‟ dated 28th August 2013, refusing to renew his contract, there was no subsisting  employment contract between the parties herein. It goes without saying that in the  absence of a subsisting contract, the Plaintiff cannot talk of termination of his  appointment and the unlawfulness thereof.  

Accordingly, the Plaintiff‟s prayer for a declaration that the Defendant‟s purported  termination of his position as a lecturer is unlawful and contrary to due process of law  is dismissed as same is factually unfounded and legally untenable. Per the record, what  actually transpired was the refusal of the Defendant to renew the Plaintiff‟s expired  contract and not a termination of his employment. Besides, I cannot see the basis for the  Plaintiff to seek to have his contract renewed if there was a subsisting contract. I shall continue with my analysis of the issues with an interrogation of the third and  eighth issues together:  

WHETHER OR NOT BY CUSTOM AND PRACTICE THE APPOINTMENTS OF LECTURERS ARE RENEWED EXCEPT ON GROUNDS OF GRAVE  PROFESSIONAL INCOMPETENCE OR PROFESSIONAL MISCONDUCT. 

AND 

WHETHER OR NOT PLAINTIFF’S SUBMISSION OF HIS APPLICATION FOR  THE RENEWAL OF HIS CONTRACT WAS A MERE FORMALITY BY THE  PRACTICE AND CUSTOM OF THE DEFENDANT. 

To reword this issue is to interrogate whether or not the Plaintiff‟s submission of his  application for the renewal of his contract was a mere formality by the practice and  custom of the Defendant. A resolution of these issues also would show whether the  Defendant‟s refusal to renew the Plaintiff‟s contract had any justification or that same  was actuated by malice. 

Although the Plaintiff recognises that the Defendant engages in renewal of contracts to  sanction a lecturer‟s employee‟s status with it, the Plaintiff contends that the said  renewal of contract is a mere formality. I understand the Plaintiff to mean that the  renewal is most likely to be effected by the Defendant except on what he contends as  grave professional incompetence or professional misconduct. To the Defendant  however, the renewal is not a mere formality and same is in accord with the internal  procedures of the University.  

In his evidence-in-chief on the 3rd day of April, 2015, the Plaintiff testified on this issue  as follows:  

Q: Kindly tell this Court the grounds for the renewal of your contract.

A: Yes my Lord. Your competence should not be in doubt and you should have  discharged your duties satisfactorily.  Again, on 30th March, 2017, the Plaintiff testified as follows:  

Q: The Defendant also says that the process for renewal of contract is not a mere   formality but it is based on dedicated procedure. What do you say to that?  

A: Yes, the renewal of my application is a mere formality. I had done my job   satisfactorily and my competence was not in doubt.  

During the evidence-in-chief of the representative of the Defendant on the 23rd day of  October 2018, this is what ensued:  

Q: The Plaintiff has stated in paragraph 3 of his amended statement of claim that   by the custom and practice of the Defendant and because they do not have   enough lecturers, the appointment of lecturers are renewed except on   grounds of grave incompetence or misconduct. What do you say to this? 

A: That is not true. The Defendant allowed its lecturers to go through a rigorous   process of renewal and it is not a case of shortage of lecturers. 

The Plaintiff tendered in evidence, the Basic Laws of the University of Ghana, which is  marked as Exhibit „U‟. The Plaintiff testified that the procedure for the renewal of  contract is provided for under Schedule F paragraph 30 of the Statute of the University  of Ghana. Indeed, the procedure that governs the renewal of contracts of Senior  Members of the University is provided for under paragraph 30 of Schedule F.  Considering the gravamen of the instant suit which l have found to be anchored on the  failure of the Defendant to renew the Plaintiff‟s contract, it is worthwhile to reproduce  the whole of Paragraph 30 of Schedule F:  

(1) An employee whose contract is coming to an end shall be notified in writing  by the Registrar through the Head of Department a year in advance to provide  an updated curriculum vitae to the Dean through the Head of Department. It is  equally incumbent on a member of staff to take steps to have his /her contract  renewed. For renewal of contract, the following other documents shall be  required: 

(a) Letter expressing desire to have contract renewed; 

(b) Head of Department‟s assessment report; 

(c) Annual reports on staff member since last renewal; 

(d) Summary report of classroom evaluations of staff member by students;

(2) Information from the employee obtained under sub-section (1) and comments  by the Head of Department shall be reviewed by the Faculty or Registry  Appointments Review Committee which may recommend renewal, indicating  the duration. 

(3) Excepting renewal of contract beyond the compulsory retiring age which shall  require the approval of Council, renewal of other contracts shall devolve on the  Faculty Appointments and Promotions Review committee or the Registry  Appointments and Review Committee. 

(4) The Faculty Appointments and Promotions Review Committee shall submit  summary reports to the University Appointments Board on each renewal  application approved. 

(5) The Faculty Appointments and Promotions Review Committee shall refer to  all unsuccessful applications for renewal of contract to the University  Appointments Board for final determination. 

Clearly, from the University‟s Statute regarding renewal of contracts, the Statute is  silent on the factors that are taken into account to renew such contracts. The absence  thereof however, in my respectful view, does not render the renewal an automatic right.  In fact and indeed, the rigorous procedures that are laid down in the Statute including  comments by the Head of Department in relation to the lecturer, summary reports of  classroom evaluations of staff member by students, a second look into unsuccessful  renewals by the University Appointments Board for final determination, put beyond  doubt, that the intendment of these procedures is to ensure that the University at all  times engages persons with the requisite standard and professionalism to continue their  engagement with it. No doubt, the procedures enumerated do not make room for  automatic renewal of contract but that there are hurdles that an Applicant for renewal of contract would have to jump. As a public institution, it would be most unfortunate if  this was otherwise. I therefore find against the Plaintiff, per Paragraph 30 of Schedule F,  that the renewal of contracts of the University is not a mere formality. That same may  be influenced by the students‟ evaluation of the lecturer, the assessment report of the  Head of Department and a review by the management of the University. It follows that  where the students‟ evaluation report and the assessment of the Head of Department  are all ill against the lecturer concerned, it will be against the public interest that such a  lecturer notwithstanding, continues to be engaged in the institution.  

Flowing from this, it does stand to good reasoning that grave professional  incompetence and professional misconduct can clearly be influencing factors  precluding the renewal of a lecturer‟s contract in the Defendant University. 

It is trite, that an employer is not obliged by law to assign reasons for terminating a contract of employment. Where however, the employer seeks to justify the  determination of the contract of employment, the reasons must be founded in law.  Stated differently, an employer‟s reasons for bringing to an end an employee‟s contract  must conform to the principles of fairness and justice. Any termination which is  anchored on personal resentment and or arbitrariness is unlawful and illegal.  

Whilst this position of the law relates to a subsisting contract of employment, it is the  Court‟s view that same cannot be said of an employer‟s right to renew or reemploy an  ex-employee. I say this because there is no legal compulsion on a person as an employer  to engage the services of another person. Although the refusal to employ or re-employ a  person may be unjustifiable in that the reasons assigned for same may have no basis, an  unfounded justification for non-renewal an employment contract (such as an unfounded allegation of financial misconduct) may permit the aggrieved party to  mount an action in defamation against the employer and not an action founded on 

unlawful termination. 

In other words, unreasonable justification for failing to renew a contract cannot compel  the Court to foist an ex-employee on an ex-employer. I note also that the Plaintiff herein  is not seeking a declaration in relation to the failure to renew his ended contract but  rather the termination of same. For the latter, this Court has found to have no factual or  legal basis. However, l shall proceed to interrogate whether the Defendant was justified  in refusing to renew the Plaintiff‟s contract. 

Now the critical document to be interrogated in this respect vis-à-vis the evidence on  record is Exhibit „T‟ dated 28th August, 2013 and signed by the then Vice-Chancellor of  the Defendant University, Professor Ernest Aryeetey, and addressed to the Plaintiff.  It reads:  

 Dear Dr. Affo,  

Re: Application for Renewal of Contract 

I have considered your application for a renewal of contract dated 15th January 2013. 

I am unable to renew your contract which ended on 31st July 2013 for reasons of  serious financial impropriety that has dragged the University’s name into disrepute. 

I wish you well in your future endeavours. (My emphasis). 

Exhibit „T‟ speaks for itself. What I understand from the Exhibit is that but for the  alleged „serious financial impropriety that has dragged the University‟s name into disrepute‟, the Plaintiff‟s contract with the University would have been renewed. It is  telling to note that the Exhibit does not state that the said serious financial impropriety  was committed by the Plaintiff. However, I have no difficulty in attributing the said  allegation to the Plaintiff considering the defence mounted against the Plaintiff in that  regard. 

What I need, therefore to interrogate further is whether indeed, the Plaintiff is guilty of  serious financial impropriety which has dragged the Defendant‟s name into disrepute.  Regarding this issue, the Plaintiff denies flatly of ever engaging in any such conduct.  The Defendant however contends that the refusal to renew his contract with it is  justified. 

At this juncture, I remind myself of discharge of the burden on this issue. It is the  Defendant, and not the Plaintiff who claims that the Plaintiff is guilty of „serious  financial impropriety‟ that bears the onus of proving the said impropriety against the  Plaintiff. The Defendant will thus be under the evidential duty to prove that the  Plaintiff indeed, committed serious financial impropriety that has brought its name  into disrepute. In so holding, I remind myself of the test of proof, laid down by Justice  Ollennu noted in MAJOLAGBE VRS: LARBI and OTHERS [1959] GLR 190 that:  

"Proof in law is the establishment of facts by proper legal means. Where a party  makes an averment capable of proof in some positive way, e.g. by producing  documents, description of things, reference to other facts, instances, or  circumstances, and his averment is denied, he does not prove it by merely going  into the witness-box and repeating that averment on oath, or having it repeated  on oath by his witness. He proves it by producing other evidence of facts and  circumstances, from which the Court can be satisfied that what he avers is true."  

See Sections 11 (1), 12, 13 (1), 14 and 17 of the Evidence Act, 1973 (NRCD 323). 

In his evidence-in-chief, the Defendant speaking through Professor Robert Kingsford  Adaboh, testified as follows on the 17th of May, 2018:  

Q: Tell us how the Plaintiff conducted himself when he was with the   Defendant. 

A: Not very well. A case in point is what took place in February, 2012. I  was in my office in a meeting when my secretary told me that two men  were in her office looking for me. They came to see me. I could not meet  them because I was busy but they left a letter for me. The letter purports  to be a contract between the Plaintiff who was representing himself as the  representative of the Department of Chemistry and the purpose was that there was an agreement between the Plaintiff and one Clement to supply  large quantities of sodium cyanide and I also observed on the document  that he had embossed the document with the stamp of the department of  chemistry. That stamp is used by the head of department, or anyone  authorised by the head of department in official correspondence. I also  observed that the letterhead used was also similar to that of the  department, except that in this case, they had two logos instead of one put  at the top left and right of the document, which someone might think that  it is our official document. I also saw that the transaction also involved  large quantities of money in dollars. It looked as if some monies had also  exchanged hands. I did not know anything about it as a head of  department. So I invited the plaintiff to my office to explain what that  document was all about. His responses were not satisfactory. So I sent the  document to my immediate boss, that was the Dean of Faculty of Science.  

It appears that this testimony of the Defendant is the whole of its case against the  Plaintiff, which is that the Plaintiff was guilty of serious financial impropriety that had brought the Defendant‟s name into disrepute. According to the Defendant, the Dean of  the Faculty of Science then requested that a disciplinary investigation be set up into the  conduct of the Plaintiff. A three-member Committee was indeed set up. The finding of  the said Committee after their investigations was tendered in evidence as Exhibit „3‟.  According to the Committee, the Plaintiff breached the code of conduct of the  University of Ghana. The Committee recommended that since it is only the Vice-Chancellor who could sanction such behavior, same should be forwarded to him. Also,  according to the testimony of the Defendant‟s representative, there was a departmental  Committee that investigated the Plaintiff upon invitation and its report submitted to the  Vice-Chancellor as well as the school management. The report of the Committee was  tendered in evidence as Exhibit „5‟. 

On 23rd October, 2018, when asked to tell the Court the findings of the Committee, this  is what the witness said:  

A: Amongst some of the findings were that the plaintiff had a contract  with Aurrum Services that the Unviersity was not party to. The Plaintiff  also misrepresented himself as a representative of the department. Checks  showed that Aurrum does not exist. Also, some amounts of money, about  120,000 USD, had been received by the Plaintiff showing there had been  some transaction which the University was not part to for which the  University was put into disrepute and embarrassment.  

The Defendant‟s representative also testified on 23rd October, 2018, as follows:  

Q: Tell the Court the conduct of the Plaintiff around March, 2013.

A: After the investigations, the Plaintiff‟s behaviour gave the University concern  to worry. There were some white men we saw taking items out of the  department without my consent as head of department, on the Plaintiff‟s  authority. Investigations led to the fact that the Plaintiff was behind the strange people going in and out of the department. When the technician of the faculty  asked the Plaintiff, he did not have a reasonable explanation. I went to the  laboratories where those white people were working to see for myself. I  interrogated them and they said it was the Plaintiff who brought them there. I  interrogated the Plaintiff on phone and he said he would come to me to explain  which he never did. I wrote a letter on this behavior to the vice dean of the  faculty of science and I was instructed to take it up.  

It appears however that although the Defendant made these allegations against the  Plaintiff, the Plaintiff was never invited by the Disciplinary Committee members or the  said Committee did not meet. In his testimony on the 30th day of October, 2018, the  Defendant‟s representative testified as follows:  

Q: The plaintiff has also stated in paragraph 6 of his reply that although  the Defendant made an allegation against him, its disciplinary committee  for superior members never met or invited him. What do you say to that?  

A: It is true he received a letter to that effect around the period, but in  July, his contract expired so the Defendant found no reason to further  invite him. (My emphasis). 

Further, on 30th of October, 2018, the Defendant through its representative testified as  follows:  

Q: The Plaintiff also states in paragraph 10 of the reply that the committee  that was set up to investigate the matter concluded that he did not forge the department's letter head. What do you say to this claim?  

A: It is true that the committee mentioned came out that he did not forge the department‟s letterhead. The committee however found him culpable for using the department‟s stamp, which is used only by the head of department. Also at the bottom of the letter he represented himself as the head of department and I cannot recall having elected him to represent me in dealing with any third party on the aforementioned contract. The committee also found he had breached the code of ethics of the University,  bringing the name of the University into disrepute.

Even before considering the cross-examination of the Defendant‟s representative,  I do not find it difficult at all in dismissing the allegations of forgery against the  Plaintiff by the Defendant since it is glaring, from the Defendant‟s own testimony  before the Court, it admits that the Committee did not find the Plaintiff culpable  in that respect. The Defendant has thus failed to prove the allegation of forgery  against the Plaintiff.  

The sub-issue to be unraveled is the alleged financial misappropriation of the  Plaintiff which the Defendant hinges or relies on as a justification for the refusal  to renew the Plaintiff‟s contract. The Defendant makes a monument on some  alleged transaction in the sum of 12,000 USD which according to it, though was  paid, same was not received by the University and seeks to suggest that the  Plaintiff directed same to his personal advantage. 

During cross-examination on this issue on the same day, this is what transpired  between the Defendant and Counsel for the Plaintiff:  

Q: You said the committee found that the Plaintiff had taken some   amount of money that the Defendant had not had the benefit  of? 

A: Yes. The transaction of 12,000 USD did not benefit the Defendant   because it was not aware of it.  

Q: I am putting it to you that there is nowhere that any of the   committee set up stated that the Plaintiff had obtained such an   amount of money. 

A: Yes, there was nowhere that it was found he obtained that   amount. However there was a transaction of about 12,000 USD   that the University is unaware of. (My emphasis). 

I pause, at this juncture, and ask myself, what is the exact financial impropriety levelled  against the Plaintiff? In one breadth, the Defendant contends that the Plaintiff has  concealed the said 12,000 USD to his personal gain without the benefit of the Defendant and sought to justify same on certain findings of the Committee set up to investigate the  Plaintiff in that regard. Yet when confronted with the issue during cross-examination, the witness admits that nowhere in the findings of the Committee did it come out that  the Plaintiff did obtain the said amount. From the Defendant‟s own testimony therefore,  I find that the Defendant failed to prove the burden on it as regards its allegation of  financial misappropriation by the Plaintiff. This thus crumbles the reason, given by the  Vice-Chancellor for the Defendant‟s failure to renew the Plaintiff‟s appointment on  grounds of „serious financial impropriety‟. 

Besides, during further cross-examination of the Defendant‟s witness on 18th February  2019, this is what ensued:  

Q: Exhibit “T” referred to serious financial impropriety what exactly was   being referred to?  

A: A lot of the ongoing things the Plaintiff had gone through such as the   12,000 USD. 

It is important to note that, the Defendant states emphatically that the disciplinary proceedings instituted against the Plaintiff terminated naturally failing the refusal of the  Defendant to renew the Plaintiff‟s contract. In that vein, I can hardly encumber with any  shred of merit the testimony of the Defendant that Plaintiff is guilty of serious financial  impropriety. This is because the procedure for arriving at a final and fair conclusion  from such disciplinary hearings was abated. During cross-examination on this point,  this is what transpired between the Defendant and Counsel for the Plaintiff:  

Q: You will agree with me that an allegation of financial impropriety is a  serious one bordering on criminality 

A: Yes 

Q: You will also agree with me that the university has such specific  guidelines in dealing with such disciplinary issues. Not so?  

A: I agree, hence the committees, which were set up as sanctioned by the  Defendant. 

Q: this disciplinary procedure that is what is contained in Exhibit „J‟  specifically page 11 clause 14 not so?  

A: Yes 

Q: You will also agree with me that Exhibit „W‟ dated 16th July, 2013 was  written specifically pursuant to the procedure laid down in Exhibit „V‟ not  so?  

A: Yes. The Exhibit states a series of committees sanctioned by the Vice Chancellor from the Department to the Science Committee.  

 Q: What became of the allegation made to the Plaintiff by Exhibit ‘W’

A: The renewal of his contract lapsed naturally hence there was no need  to pursue further the said invitation  

Q: So in other words the letter from the vice-chancellor Exhibit ‘T’  effectively terminated the proceedings envisaged under Exhibit ‘W’, not  so?  

A: Yes 

Q: You will agree with me that the procedure that was begun by your  letter titled suspicious looking contract (Exhibit ‘v’) did not arrive at any  firm conclusion as envisaged by the code of ethics of the Defendant’s  Exhibit ‘J’ 

A: I cannot tell (My emphasis). 

The Defendant, in my respectful opinion, has failed woefully to prove that the Plaintiff  was guilty of „serious financial impropriety‟. It follows that, the reason for the refusal to  renew Plaintiff‟s contract was unfounded. However and as earlier stated, the Plaintiff  herein is not seeking for a declaration as to an unfounded justification of the Defendant to renew his contract but rather an unlawful termination of his contract, for which the  failure of the Defendant to renew his contract, albeit on an unfounded allegation, is of  no moment.  

Following my conclusion that the Plaintiff‟s contract of employment naturally came to  an end, no useful purpose will be served for the resolution of issues 4, 5, 6, 7, 14, 15,16, 17,18,19, 20, same having been rendered otiose. 

ISSUE 9 

WHETHER OR NOT THE DEFENDANT’S SOLE GROUNDS FOR REFUSING TO RENEW PLAINTIFF’S CONTRACT, IS THAT PLAINTIFF HAD ENGAGED IN FINANCIAL IMPROPRIETY THAT HAS DRAGGED THE DEFENDANT’S NAME  INTO DISREPUTE WAS TRUE. 

I do not face any difficulty in answering this issue in the affirmative. Exhibit “T” speaks  for itself. The Exhibit states that the Plaintiff‟s contract will not be renewed on the  grounds that the Plaintiff had brought the Defendant‟s name into disrepute. I find that,  this is the sole ground for the refusal of the Defendant to renew the Plaintiff‟s contract.  Although the Defendant‟s representative sought to allege that there existed other grounds in his testimony, the Defendant, as in the alleged „serious financial  impropriety‟ failed to prove those other grounds. The evidence before the Court  however does not prove that the Plaintiff‟s conducted himself in a manner that dragged  the name of the Defendant in the mud.

ISSUE 10: WHETHER OR NOT PLAINTIFF’S IMAGE AND REPUTATION WAS INJURED WHEN THE DEFENDANT CIRCULATED NOTICES FOR THE  ALLEGED REASON FOR PLAINTIFF’S PURPORTED TERMINATION TO OTHER  MEMBERS OF THE UNIVERSITY COMMUNITY. 

Despite the extensive and detailed pleadings on this issue, there is missing the evidence  in support or against this issue. Hence, the said allegation stands unproved. 

CONCLUSION 

By way of conclusion, I am satisfied, from the evidence adduced, that the Plaintiff‟s  contract with the Defendant naturally came to end, with the Defendant failing to renew  same. That in spite of the fact that the justification proffered by the Defendant for failing to renew the Plaintiff‟s ended contract was unfounded, there was no subsisting contract  that was curtailed by the Defendant as alleged by the Plaintiff. For this reason, Relief 1 of the Plaintiff for unlawful termination of his employment contract is dismissed. 

Relief 2 for a declaration that the Defendant‟s reasons for the purported termination of  Plaintiff‟s job and circulating the same to the members of the University community  have caused injury to Plaintiff‟s reputation is also dismissed. Flowing from Relief 1, that  there was no such termination, it is wondered how same could have been circulated. In  any event, the Plaintiff failed to prove any form of circulation that injured his  reputation. 

Relief 3 for an order that the Defendant pays the Plaintiff his unpaid salary together  with all entitlements due him from August, 2013, to date of final judgment cannot be  granted by reason of the finding of this Court that the Plaintiff‟s employment was not  terminated but that same came to a natural end on 31st July, 2013. 

Relief 4 for general damages for unlawful termination and injury to Plaintiff‟s  reputation is also dismissed. In the case of DELMAS AGENCY GHANA LIMITED  VRS: FOOD DISTRIBUTOR INTERNATIONAL LIMITED [2007-2008] SCGLR 748 at  page 760, the Supreme Court expatiated on the principle relating to general damages as  follows: 

General damages are as the law will presume to be the natural or probable  consequence of the Defendant‟s act. It arises by inference of the law and therefore  need not be proved by evidence. The law implies general damages in every  infringement of an absolute right. The catch, it was further stated, is that only nominal damages are awarded. Where the Plaintiff has suffered a properly  quantifiable loss; he must specifically plead his loss and prove it strictly. If he does  not, he is not entitled to anything unless general damages are also appropriate. 

See also the case of YUNGDONG INDUSTRIES LIMITED VRS: RORO  SERVICES [2005-2006] SCGLR 819 at page 839. 

Having found that the Defendant did not breach any agreement of the parties by failing  to renew the Plaintiff‟s contract, the Plaintiff is not entitled to this relief. 

Relief 5 for an Order that the Defendant should unconditionally restore the Plaintiff‟s  status quo ante as a lecturer is also dismissed since the Plaintiff cannot foist himself on  the Defendant as its employee, his contract having naturally come to an end. 

Relief 6 for perpetual injunction restraining the Defendant from terminating the  Plaintiff‟s employment in like manner is also dismissed as having no legal basis.  

Costs of GHC8,000.00 in favour of the Defendant against the Plaintiff.

SGD

GIFTY AGYEI ADDO J

JUSTICE OF THE HIGH COURT

COUNSEL

KWEKU OSEI ASARE FOR THE PLAINTIFF.

GOLDA DENYO FOR THE DEFENDANT.