FRANCIS OSEI-ANSAH V. NATIONAL VOCATIONAL TRAINING

JUDGMENT

OWUSU, J.

By an amended Writ of Summons issued out at the registry of this Court on the  26th of February 2016, the Plaintiff claims against the Defendant as follows:

“1. A declaration that the termination of the Plaintiff’s appointment is  unconstitutional and or wrongful. 

2. General damages for wrongful termination of appointment. 

3. An order for payment of all unpaid salaries and other emoluments.

IN THE ALTERNATIVE 

1. An order for payment of any entitlements that are found due the Plaintiff. 2. Interest on any such entitlements calculated at the current bank rate from  1st March, 2008 to date of final payment.” 

SUMMARY OF CASE 

THE PLAINTIFF’S CASE 

The Plaintiff sets out his case by an accompanying Statement of Claim to the amended Writ of  Summons, amended Reply dated 21st January, 2016, his Evidence in Chief contained in his Witness Statement filed on the 26th of October 2015 and further Witness Statement filed on the  22nd of January, 2016.

His case is that he was employed by the Defendant on 7th January, 1980 and worked for twenty eight (28) years until his appointment was terminated by the Defendant by a letter dated 17th June, 2008. According to him, during his tenure of employment he was promoted to the rank  of Deputy Chief Internal Auditor in 2003 and later in August 2003 he was made the Acting  Chief Accountant.  

Thereafter, the Defendant under the pretext of undergoing a restructuring exercise published  some vacancies and made certain postings. Plaintiff claimed that in pursuance of this reshuffle  and postings, he received a letter dated 20th February 2008 offering him appointment as  Principal Accountant in charge of the Defendant’s Training Centre at Kokomlemle, Accra with  effect from 5th February, 2008. 

Plaintiff’s case further is that he considered the offer of Principal Accountant a demotion and  by a letter dated 28th February, 2008 rejected the offer whereupon in reaction to his rejection  letter, Defendant wrote to him stating that he had vacated his post and as a result his  appointment with them had been terminated. 

Plaintiff maintained that his employment with the Defendant made him a Public Officer as such  his employment was safe guarded by Article 190 of the 1992 Constitution of Ghana and the  offer of Principal Accountant which was a demotion contravened Article 190 of the 1992  Constitution.

THE DEFENDANT’S CASE 

The Defendant sets out its case in its amended Statement of Defence and Evidence in Chief  contained in the Amended Witness Statement of Enoch Lamptey Addison filed on the  22nd of January, 2016. 

The case of the Defendant is that Plaintiff was only acting as the Chief Accountant based on  Exhibit 1, a directive from the Ministry of Manpower and Employment. According to the Defendant, its Board resolved to restructure its institute and a new scheme of  service was introduced after the restructuring. All acting positions were advertised in the Daily  Graphic and staff acting in those advertised positions were advised to apply. Plaintiff  applied for the position of Head of Accounts but he was not short-listed and then he  subsequently applied to be declared redundant but his request was turned down. Defendant  claimed that Plaintiff then applied for and proceeded on a six (6) months leave without pay  effective 2nd July 2007. Pursuant to Article 23(q)(i)(b) of the Collective Bargaining  Agreement (CBA) governing parties which provides that a staff who has been granted leave  without pay “may only be hired back into his or her role if the position remains vacant on his or her return” and based on Plaintiff’s letter dated 4th February 2008, Plaintiff was offered an  appointment to the position of Principal Accountant which he rejected. 

Defendant maintained that the position of Principal Accountant offered the Plaintiff was in no  way a demotion as it came with better salary and allowances. 

Defendant asserted that Plaintiff has not accounted for certain IOU’s and whiles in the process  of calculating Plaintiff’s entitlements and deducting the said amount, Plaintiff issued this Writ. 

ISSUES SET DOWN FOR TRIAL 

i. Whether or not the Plaintiff was promoted to the rank of Deputy Internal Auditor.

ii. Whether or not the Defendant’s subsequent offer of appointment to the Plaintiff as  a Principal Accountant was a demotion or a reduction in rank. 

iii. Whether or not the termination of the Plaintiff’s appointment was unconstitutional  and or wrongful

ANALYSIS OF THE ISSUES 

I shall proceed to address issue (i) 

∙ Whether or not the Plaintiff was promoted to the rank of Deputy Internal Auditor. 

The Defendant in its amended Statement of Claim and Witness Statement has not denied that  the Plaintiff was promoted to the rank of Deputy Chief Internal Auditor. There is no duty on  the Plaintiff to prove this. I refer to the case of FORI v. AYIRIBI [1966] GLR 627 @  647(holding 6) where the Supreme Court stated as follows: 

“When a party had made an averment and that averment was not denied, no issue was joined  and no evidence need be led on that averment. Similarly, when a party had given evidence of a  material fact and was not cross-examined upon, he need not call further evidence of that fact.” Again in the case of WEST AFRICAN ENTERPRISES LTD v. WESTERN HARDWOOD  ENTERPRISE LTD [1995-1996] 1 GLR @ 153 the Court held that no principle of law  required a party to prove an admitted fact. 

The Court finds as a fact that Plaintiff was promoted to the rank of Deputy Internal Auditor. I shall next proceed to discuss issue (ii) 

∙ Whether or not the Defendant’s subsequent offer of appointment to the Plaintiff as a  Principal Accountant was a demotion or a reduction in rank.

Defendant is claiming that the Board resolved to restructure the Defendant Institute and after  the restructuring a new scheme was introduced whereby all acting positions were advertised in  the Daily Graphic and persons who were acting in advertised positions were advised to apply.  Restructuring is the corporate management term for the act of reorganizing the legal,  ownership, operational, or other structures of a company for the purpose of making it more  profitable, or better organized for its present needs, or a response to a crisis. It is generally to  re-organize and to reduce operations  

A company restructures its operations or structure by cutting costs, such as payroll, or reducing  its size through the sale of assets. This is often seen as necessary when the current situation of  a company necessitates such a measure. 

At page 2 of the record of proceedings for the 11th of February, 2016, the Plaintiff under cross examination does not deny that the Defendant underwent a restructuring after the scandal. The  Defendant had the right to restructure its operations whichever way to respond to the crisis and  by Exhibit D, the vacancy announcement, it chose to advertise acting positions as vacant in the  newspapers. 

Plaintiff duly applied for the position of Head of Accounts but he was not short listed and he  subsequently applied to be declared redundant as per Exhibit 3 but this was rejected. He then  applied for six (6) months leave without pay. Same was granted and then he proceeded on  leave.  

There is evidence that when Plaintiff came back from leave he was invited to discuss his  placement on the new system. This suggests that his position which he held before the  restructuring was not guaranteed especially when there is no evidence that this position was  advertised after the restructuring. I refer to Exhibit 6, the letter inviting Plaintiff for a discussion  on his placement in the new system and page three of the record of proceedings for the 28th of  January, 2016. This is what ensued: 

“Q. When you wrote the letter to assume duty management wrote back to you  inviting you to discuss your placement on the new system. Is that correct? 

A. Yes, my lord. 

Q. So that took place did it not? 

 A. Yes.” 

Yet again in line with Article 23(q)(i)(b) of Exhibit J, the CBA the Plaintiff could only be hired  back if his position remained vacant.  

Plaintiff claims that his position was vacant and he got to know this because when he was on study leave without pay, the Defendant invited him to the Institute on several occasions to assist  the internal auditors. Defendant denies that Plaintiff’s position as Deputy Chief Internal Auditor  was vacant. Plaintiff failed to lead further evidence in prove of this assertion. In the case of  MAJOLAGBE v. LARBI AND OTHERS [1959] GLR @ 192 the Court held 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”. 

The Court cannot say as a fact that Plaintiff’s position as Deputy Chief Internal Auditor was  vacant when he returned. The Defendant’s representative under cross-examination and at page  5 of the record of proceedings for 19th February 2016 stated that the old position of Deputy  Chief Internal Auditor or Acting Chief Accountant had all been done away with. The Defendant  could therefore be offered another position as my understanding of Article 23(q)(i)(b) is that  such an employee does not cease to be an employee of the Defendant Institution but could be  offered another position if available. Therefore, under both Article 23 (q)(i)(b) and under the  new scheme of service, Plaintiff could be offered another position. 

Plaintiff was thus offered the position of a Principal Accountant in charge of the Pilot Training  Centre at Kokomlemle. It is this position that Plaintiff claims is a demotion in rank. The  Plaintiff is alleging that his offer of appointment as a Principal Accountant was a demotion  which contravened Article 190 of the 1992 Constitution as such the subsequent termination of  his appointment was unconstitutional and wrongful. This the Defendant has denied.  

The law requires that each party who makes an assertion or assertions which are denied by his  opponent, must lead convincing evidence to prove the assertions therein. By the provisions of  Section 12(1) and (2) of the EVIDENCE ACT 1975 NRCD 323, the standard required is proof  by the preponderance of the probabilities. Indeed, from the earlier authorities such as  MAJOLAGBE v. LARBI AND OTHERS (supra) and ZABRAMA v. SEGBEDZI [1991]  2 GLR @ 221 to recent authorities such as YAA KWESI v. ARHIN DAVIES [2007-2008]  SCGLR @ 580, SARKODIE v. FKA CO. LTD [2009] 1 SCGLR @ 65(holding 1), ABBEY  v. ANTWI [2010] SCGLR 17 @ 19(holding 2) and ACKAH v. PERGAH TRANSPORT  [2010] SCGLR 728 @ 730 this standard of proof was applied. 

In expounding this principle of proof in civil suits, Kpegah JA (as he then was) had this to say in ZABRAMA v. SEGBEDZI (supra) @ page 246 as follows: 

“…The correct proposition is that, a person who makes an averment or assertion, which is  denied by his opponent, has the burden to establish that his averment or assertion is true. And  he does not discharge this burden unless he leads admissible and credible evidence from which  the fact or facts he asserts can properly and safely be inferred. The nature of each averment or  assertion determines the degree and nature of that burden.” 

To ‘demote’ is to lower. Plaintiff thus bears the burden to produce evidence to support his claim  that by offering him a position as a Principal Accountant his rank or position had been lowered. In paragraph 12 of the Statement of Claim Plaintiff averred that he had not resigned his previous  position which was higher than the position of Principal Accountant offered to him. In  paragraph 17 he stated that prior to the termination he was receiving monthly salary of Five  Hundred Ghana Cedis (GH₵500.00), fuel allowance of Twenty-Five Ghana Cedis(GH₵25.00),  was entitled to an official bungalow and One Hundred Ghana Cedis (GH₵100.00) as  responsibility allowance which is 20% of his basic salary. 

The Plaintiff was promoted to Deputy Chief Internal Auditor in April, 2003 and later in 2003  made to act as the Chief Accountant. Exhibits C series are payment vouchers, payroll registers  and salary structures for the years 2003, 2005 and 2006 which show how much Plaintiff was  being paid as Deputy Chief Internal Auditor and Acting Chief Accountant. Exhibit 9, a payroll  register which is dated March 2007 is quite current considering when Plaintiff applied and  proceeded on his six (6) months leave as per Exhibit 4. Exhibit 9 shows that Plaintiff was  receiving a monthly salary of ₵3, 195,574 (old cedis) then. This does not support Plaintiff’s  assertion made at paragraph 17 of his Statement of Claim and again does not support Plaintiff’s  assertion that the Position of Principal Accountant was a demotion in rank. 

Plaintiff’s Exhibits K and K1 dated 2008 are supposed to buttress Plaintiff’s salary increase  to a new salary scale of level 15 step 5 in support of his monthly salary of Five Hundred  Ghana Cedis(GH₵500.00). At paragraphs 3 and 4 of Plaintiff’s Further Witness Statement  Plaintiff stated that staff of the Defendant were granted a new salary structure and increase on  9th June, 2008 which took effect from 1st January, 2008. Indeed, Exhibit K shows that in June  2008 there was an increase in salaries with effective date of implementation being 1st January,  2008 however on the face of Exhibit K1, there is nothing to show that Plaintiff was placed on  level 15 step 5 and before the termination was receiving a monthly salary of Five Hundred  Ghana Cedis (GH₵500.00) as portrayed in answers given by the Plaintiff at page 2 of the record of proceedings of 11th day of February, 2016. This is what ensued:

“Q. Could you please tell this court what your salary was as a Deputy Internal  Auditor? 

 A. My lord, I was placed on level 15. 

Q. What about a Principal Trainee Officer? 

A. My lord, if I could remember it was level 13. 

Q. That is to say you are not sure. 

A. It has been a long time. 

Q. What about Principal Accountant? 

A. My lord, I think they were all placed on level 13. 

Q. Is that also to say you are not sure? 

A. It has been a long time I think they were placed at level 13.” 

In any case, in June 2008 when Exhibit K was written, Plaintiff had ceased to be an employee  of Defendant Institution. The court cannot say as a fact that Plaintiff at the time of the  termination of his appointment was on level 15 and was receiving an amount of Five Hundred  Ghana Cedis(GH₵500.00) which said amount was more than the Three Thousand, Two  Hundred and Sixty-Five Cedis, Seventy Pesewas (₵3, 265.70) salary he was to receive as  Principal Accountant. 

Plaintiff was acting as the Chief Accountant. There is no evidence suggesting that Plaintiff was  confirmed the Chief Accountant. He was the Deputy Chief Internal Auditor at the time of the  termination of appointment and the position of Head of Accounts which was advertised was  higher than the position of Deputy Chief Internal Auditor. Although at page 6 of the record of  proceedings for the 11th of February, 2016 the Defendant’s representative admitted that the  position of Deputy Chief Internal Auditor is equivalent to that of Deputy Chief Accountant,  their case is that after the restructuring this position was scrapped and the equivalent of  Plaintiff’s position at the time was Principal Accountant. At page 2 of proceedings of 11th February Plaintiff admits that the position of Deputy Internal Auditor was not advertised. This  was his answer to a question asked: 

“Q. Was the position of Deputy Internal Auditor ever advertised that you were aware of

A. No, my lord.” 

The Plaintiff has failed to establish that the Defendant’s subsequent offer to him as a Principal  Accountant was a demotion. I find as a fact that Plaintiff’s subsequent offer was not a demotion  or a reduction in rank.

∙ Whether or not the termination of the Plaintiff’s appointment was unconstitutional  and or wrongful  

As already stated, my understanding of Article 23(q)(i)(b) is that a staff granted study leave  without pay may not be hired back into his role because the role may not be vacant but may be  hired back in another role. The hiring back is in respect of the particular role and not the service  contrary to the case of the Defence that once a staff goes on study leave then technically he is  no longer a staff of the Defendant and only becomes an employee if the position he occupied  remained vacant. The tone of Exhibit 6, indicating that Defendant was pleased to have Plaintiff  back when Plaintiff by Exhibit 5 informed the Plaintiff he was ready to assume duty seems to  suggest that Plaintiff was still in the employment of the Defendant at the time. However, he  ceased to be when he his role as Deputy Chief Internal Officer was not available due to the  restructuring and he rejected the role of Principal Accountant. It was when he rejected the offer  that he ended his employment with the Defendant. 

An employer, just like the employee could terminate the contract of employment “at any time”. In the case of ASHUN v. ACCRA BREWERY LTD [2009] SCGLR 81 cited by counsel for  the Defendant, the court held that:  

“a contract of employment is not necessarily a contract till retirement age. In other words,  a contract of employment, though it may be for an indefinite period, does not mean life  employment.”  

In the case of CHATLANI v. HAROUTUNIAN [1974] 2 GLR 263, the court held that the  employer, like the employee, could indeed terminate the contract of employment at any time  provided only that the due notice is given. I again refer to the case of KOBEAH AND  OTHERS v. TEMA OIL REFINERY; AKOMEA-BOATENG v. TEMA OIL REFINERY  (CONSOLIDATED) 2003-2004 SCGLR 1033 @ 1039. 

The Plaintiff’s employment was governed by the Contract of Employment, Exhibit A and the  COLLECTIVE BARGAINING AGREEMENT. Paragraph 6 of Exhibit A states that the  appointment may be terminated by either party by giving one-month notice in writing or on  payment of one-month salary in lieu of notice. 

After the Plaintiff received Exhibit 7, dated 20th February 2008, the letter offering him the  position of a Principal Accountant, he by Exhibit H, dated 28th February 2008 rejected the offer.  Indeed, the 1992 Constitution guarantees every person in Ghana the right to work freely and  willingly without any compulsion. This means that employees have the freedom to work when  they wish to and to stop any work they may be doing when they feel like.  

Plaintiff rejected the offer he was made after the restructuring of the Defendant Institution and  by so doing severed his relationship with the Defendant. By Exhibit 8, the Defendant thanked  Plaintiff for declining the offer and wished him all the best in his future endeavours. If Plaintiff  did not intend Exhibit H, as a termination letter, he would have responded to Exhibit 8.  Defendant waited until June when Exhibit B, the letter confirming the termination of Plaintiff’s appointment was written on 17th June 2008. The position of Deputy Internal Auditor was no  longer available and Plaintiff had an option to accept or reject the offer. 

This to me is a form of termination by mutual agreement without signs of compulsion from  either side. The court finds as a fact that the termination of the Plaintiff’s appointment was not  wrongful. 

It is provided under ARTICLE 191 (b) of the 1992 CONSTITUTION that

“A member of the public services shall not be- 

(b) dismissed or removed from office or reduced in rank or otherwise punished without just  cause.” 

There is no doubt that the Plaintiff is a public servant but the Court has found as a fact that the  subsequent offer of appointment to the Plaintiff was not a demotion. Accordingly, the Court  further finds as a fact that the termination of the Plaintiff’s appointment was not  unconstitutional.  

The Plaintiff in his amended Writ is claiming alternative reliefs. Under cross-examination, the  Defendant’s representative presented the package or entitlements due Plaintiff. The Plaintiff was not declared redundant as such is not entitled to severance pay.  As a follow up to Exhibit 11, which is a response to the Defendant on the issue of unpaid IOU’s,  the Defendant wrote Exhibit 12 to the Plaintiff. Exhibit 11 suggests that the issue on the IOU’s  was still hanging as Plaintiff had been asked to ‘have another look at your response, failing  which it will have no option than to surcharge you with the amount in accordance with section  7 of the conditions of service for management personnel. 

Please treat this letter as a demonstration of management’s magnanimity to you in finding a  solution to this problem’. 

There is no evidence on record that Plaintiff settled these issues with the Defendant to bring  this matter to a conclusion. I find as a fact that some IOU’s remain unaccounted for by the  Plaintiff. 

Defendant sought to say that the Plaintiff’s terminal benefits have not been paid because of the issue regarding the unauthorized IOU’s. I tend to side with the Defendant as there has not  been a firm closure on same. Plaintiff has failed to convince the Court that he is entitled to  interest on his entitlements. He is not entitled to his relief (j). 

Judgment is however hereby entered for the Plaintiff on his relief (i) in accordance with the  Collective Bargaining Agreement.  

(SGD) 

JUSTICE LAURENDA OWUSU 

JUSTICE OF THE HIGH COURT

COUNSEL

S. K. AMOAH FOR THE PLAINTIFF

AKAWARI ATINDEM FOR THE DEFENDANT.