KWAPONG AND OTHERS V. GHANA COCOA MARKETING BOARD AND OTHERS AMOH V. GHANA COCOA MARKETING BOARD AND OTHERS (CONSOLIDATED)

OSEI-HWERE JA

At all material times the first plaintiff in suit No 556/80 was the deputy managing director of the Cocoa Marketing Co, and the second plaintiff, the principal public relations officer of the first defendants; the plaintiff in suit No 555/80 was the chief public relations officer of the first defendants; the first plaintiff in suit No 554/80 was the solicitor-secretary of the first defendants; and the second plaintiff was the director of special projects of the first defendants. They all claim, in addition, that they were public officers in the public service of Ghana. On or about 30 October 1979, the defendants issued a circular letter, exhibit B, whereby they notified each of the plaintiffs, among others, that adverse findings were reported against them by the Archer Committee of Enquiry which investigated the affairs of the Ghana Cocoa Marketing Board, and that if they so desired they should appeal against the said findings by representations to the special tribunal set up by the AFRC; exhibit B was specifically dated 30 October 1979. On the very next day, ie 31 October 1979, the defendants, through the second defendant, notified each of the plaintiffs that as a result of the acceptance of the findings and recommendations of the Archer Committee of Enquiry the board was being re-organised and that the re-organisation had rendered the services of each of the plaintiffs redundant. The plaintiffs were therefore to be retired from the services of the first defendants with immediate effect and to vacate the first defendants’ premises occupied by them by 31 December 1979. Three of the letters were admitted in evidence as exhibits E, E1 and E2.

On 14 November 1979 the second defendant, on behalf of the defendants, issued a press statement, exhibit H, which, among other matters, gave reasons for retiring the plaintiffs and others from the service of the first defendants. The said reasons were alleged to stem from the adverse findings made against them by the Archer Committee Report and the acceptance of the committee’s findings and recommendations. The alleged adverse findings were, in fact, subsequently set aside by the special tribunal see exhibits D, D1-D4. At the date of their compulsory retirement each plaintiff was below the age of 50 and, therefore, not due for retirement from the public service.

They complain that their purported removal or retirement from office by the defendants is wrongful and without just cause. They further say that the AFRC issued a white paper on the Archer Committee Report whereby the government directed that the Cocoa Marketing Board is to be replaced by a Cocoa Council and further that all senior officers of the Cocoa Marketing Board and its affiliated bodies who had not been dismissed were to be redeployed outside the cocoa industry on the formation of the council. They say that the Cocoa Council has not been formed and they cannot be redeployed prior to the formation of that council. They claim that by virtue of their offices with the first defendants they are entitled to be housed by the first defendants. The plaintiffs finally complain that the first defendants have failed to pay to each one of them their salaries and other entitlements as employees of the first defendants since specified dates in 1980. Wherefore they claim against the defendants the following reliefs:

“(a) Declaration that the retirement of each of them by the defendants is wrongful;

(b) Declaration that they are still employees of the first defendants,

(c) An order against the defendants for payment to each plaintiff his salaries and allowances as from the specified dates and at the specified rates;

(d) An order that the defendants reinstate each to his substantive post; and

(e) An injunction restraining the defendants, their servants, agents or workmen or both from ejecting the plaintiffs from the first defendants’ bungalows provided for their use.”

The first defendants were at all material times (and they still are) a public corporation and the second, third and fourth defendants were at all material times members of the interim management committee of the first defendants, with the second defendant as its chairman. Counsel for the defendants accepts the basic background of the case for the plaintiffs except that as employees of the first defendants they all became subject to the staff rules and regulations of which the latest edition was published in 1979. According to him the plaintiffs were retired (without prejudice to their redeployment) because the defendants wanted to re-organize their office. Subsequent to their retirement the plaintiffs collected their full entitlements. He says that the defendants admit all the documents put in evidence by the plaintiffs but deny that the cumulative interpretation of those documents will afford them the remedies they seek. The appraisal of the facts and the standpoint taken by each side became necessary because no formal evidence was led as it was accepted by counsel that the documents tendered by consent spoke louder than words. The court’s main task is to interprete the documents and find out whether they will make or unmake the plaintiffs case.

At the date of the notification to the plaintiffs of their “compulsory retirement” the Constitution of the Third Republic of Ghana (popularly called the Constitution, 1979) was in force. Article 155 (b) of the said Constitution provided:

“155. No member of the public services shall be-...(b) Dismissed or removed from office or reduced in rank or otherwise punished without just cause”

This, to the plaintiffs, was the apotheosis of the security of the tenure of their respective offices. For the plaintiffs to take advantage of this constitutional guarantee there must be the predetermination in their favour of two issues, namely (a) whether or not they were at the material time members of the public services and (b) whether or not they were dismissed or removed from office without just cause. To resolve issue (a) above we must resort to article 154 (1) of the Constitution, 1979 which also provided:

“154. (1) The public services of Ghana shall include the Civil Service, the Judicial Service, the Audit Service, the Education Service, the Prisons Service, the Parliamentary Service, the Health Service, the Statistical Service, the Fire Service, the Customs and Preventive Service and public corporations, other than those set up as commercial ventures, which shall constitute the Public Corporations Service and such other public services established by this Constitution or as Parliament may by law prescribe.”

Article 213 (1) interpretes “public office” to include:

“an office the emoluments attaching to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and an office in a public corporation established entirely out of public funds or moneys provided by Parliament.”

It also interpretes “public service” to include “service in any civil office of Government, the emoluments attaching to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and service with a public corporation.”

The language of article 154 (1) of the Constitution, 1979 is very clear and should not present any difficulty in interpretation. “Public service” in that article is the generic name and “civil service”, “judicial service”, “public corporation service”, for instance, which have been named form but the species of public services. Accordingly, the protection given to members of the public services in article 155 is wide enough to protect any member of the species and there is no need to mention specifically members of public corporations service, for instance, as beneficiaries of that protection. Corporations set up as commercial ventures were excluded from the public service. By virtue of articles 158 (2) and 159 and also of article 20 of the transitional provisions the first defendants were a public corporation because they had been established by the Ghana Cocoa Marketing Board Instrument, 1970 (LI 660) in exercise of the powers conferred on the President by sections 1, 2 and 6 of the Statutory Corporations Act, 1964 (Act 232). Before the promulgation of the Constitution, 1979 all officers of public corporations were members of the public service. The plaintiffs were all members of the public service during that period by virtue of section 5 of the National Redemption Council Proclamation, 1972. In Sallah v. Attorney-General, 20 April 1970, unreported; digested in (1970) CC 55 although the Supreme Court did not expressly rule on it, the majority decision of that court considered article 138 (b) of the Constitution, 1969, which was the equivalent of article 155 (b) of the Constitution, 1979, in favour of the plaintiff, a manager of the Ghana National Trading Corporation which is to all intents and purposes a commercial venture. Public corporations set up as commercial ventures was a new concept introduced by the Constitution, 1979, which failed to define “commercial venture” so as to ascertain which public corporations will fall under the rubric of public corporations set up as commercial ventures. Until Parliament passed an express enactment for the establishment or operation of a public corporation as a commercial venture under article 159, any corporation continued by article 20 of the transitional provisions must necessarily retain its old character. Indeed, section 8 (2) of the Constitution (Consequential and Transitional Provisions) Decree, 1979 (AFRCD 56) settled any doubt as to the status of public officers or public servants under the Constitution, 1979. As the plaintiffs were “public officers” or “public servants” (by definition the two terms practically and functionally mean the same and are therefore interchangeable) when the Constitution, 1979 came into force they retained their rights as such officers under the Constitution. The subsequent Ghana Cocoa Marketing Board Act, 1981 (Act 447) which was passed to supplant LI 660 and which, from the Bill on that Act, was aimed at a fundamental restructuring of the body charged with the management of the cocoa industry, Ghana’s life-blood, cannot be said to have been set up as a commercial venture. I am satisfied, for the foregoing reasons, that the plaintiffs were and remained members of the public service at the time of their compulsory retirement.

Although the letter addressed to each of the plaintiffs was elegantly headed “Compulsory Retirement of Staff” it was simply to dismiss them or remove them from office, no more no less. Even then article 213 (4) of the Constitution, 1979 provided that:

“(4). A power conferred by a law to permit a person to retire from the public services shall, in the case of a public officer who may be removed from office by some person or authority, other than a commission established by this Constitution, vest in the President acting in accordance with the advice of the appropriate authority.”

It is otherwise if the compulsory retirement is on account of the public officer having attained the age specified for compulsory retirement: see article 213 (2 (b). Accordingly, the letter to retire each plaintiff before his time was on the face of it, wanting in constitutional authority. As public officers their compulsory retiring age was 60 years: see article 162 (1).

Barring the want of authority to retire the plaintiffs prematurely it is for the defendants to satisfy the court that they had just cause to dismiss the plaintiffs. Their reasons for doing so can be no other than what they stated in their identical letters to the plaintiffs which they backed up by publicly ventilating their true motives in a press conference. It will be worthwhile, although I risk the accusation of boredom to quote the letter and a passage from the press release. The body of the letter runs as follows:

“CONFIDENTIAL COMPULSORY RETIREMENT OF STAFFAs a result of the acceptance of the findings and recommendations of the Archer Committee of Enquiry on the Cocoa Marketing Board, the Board is being re-organised to reflect the letter and spirit of the Report and recommendations. This re-organisation has rendered your services redundant and you are hereby requested to retire from the service of the Board with immediate effect. All your entitlements under the terms of your contract of employment will be met subject to any deductions due from you to the Board.2. You are further requested to hand over to the officer immediately next to you and also required to vacate any of the Board’s premises if you are occupying one, by the 31 December 1979.3 The Management Committee takes this opportunity to express our thanks and appreciation for your co-operation during the period of your office.(Sgd) M Bawumia Chairman Management Committee.”

The following passage from the press release is also instructive:

“In the difficult task of retiring 29 top officials and the massive re-organisation exercise currently being undertaken in the CMB by the committee, we have been guided solely by the Archer Committee’s Report and records at our disposal.We shall like to make it abundantly clear that in carrying out this exercise the only consideration foremost in our mind is the supreme national interest. No other factors whatever played on our minds. We effectively put away strong factors like personal attachments or other ties. This enabled us to deal equally with friends and other relations who were affected. Any criticism therefore levelled against the committee in this exercise is both unjustified and hypocritical. Some of the affected persons claim that the amounts involved were in some case less than ¢200 and that in most cases the amounts had been refunded. Others maintained that they had lodged appeal before the Special Tribunal under Justice Abban and therefore there was no justification for their retirement. The Constitution of the Third Republic disqualifies any person against whom adverse findings is made by a committee of inquiry from holding public office. It is immaterial whether the adverse findings involved one pesewa or ¢1,000 and whether the amount is refunded or not, or whether an appeal is pending or not. Unless Ghanaians put an end to subjective interpretation of facts to suit their convenience there will be no end to our woes. It will also be unfair to the farmer and the economy to expect the management committee to retain staff who are inefficient, idle, redundant or guilty of misconduct, on the pay-roll of the CMB. Where re-deployment is not possible the obvious choice in such cases is retirement with full benefits under the officers’ terms of contract of employment to enable such officers to secure their own jobs.”

Reading these two documents together it becomes clear that the real motive for the dismissal of the plaintiffs was the assumption by the defendants that adverse finding had been made against them by the Archer Committee Report. The power to dismiss or remove a person as the result of a commission (or committee) of enquiry is controlled by the Commissions of Enquiry (Implementation of Findings) Decree, 1974 (NRCD 261). By section 1 (1) of the Decree where any commission (or committee) of inquiry has submitted any report to the government, and thereafter the government has published a white paper in respect of such report and has in the white paper accepted a recommendation or recommended that any person should be dismissed or removed from any post, the Chairman of the NRC (the AFRC at the material time) or any person authorised by him may by notice published in the Gazette declare that any such person is summarily dismissed or removed from his post with effect from such date as may be specified in the notice. Similarly where the white paper accepted a recommendation or recommended that any person should refund money or restore property then the Attorney-General may order that person by notice served on him to do so in the manner and within such time as may be specified in the notice. It is clear from NRCD 261 that insofar as dismissal flowing from an inquiry is concerned it is only the Head of State or any person authorised by him who can effectuate it. No other person has the power to implement a dismissal recommended in the report or to recommend a dismissal where the report is silent. There is nothing in the white paper which either accepted a recommendation or recommended that any of the plaintiffs should be dismissed. There is not even so much as any adverse finding which was accepted against three of the plaintiffs, namely Kwapong, Gyambibi and Frimpong - Attafuah, about the refund of stated sums in respect of excess drinks contained in paragraph 23 of the white paper.

In spite of the bold effort of their counsel to wriggle out of it, it is clear from some of the documents tendered that the defendants made unwarranted fetish of paragraph 35 of the white paper as giving them an instant right to dismiss the plaintiffs. In exhibit F, for instance, the solicitor for Frimpong-Attafuah wrote to the second defendant to protest the compulsory retirement of his client and to ask for his reinstatement. The second defendant’s answer, contained in exhibit C, was sharp and peremptory management was unable to accede to the request to reinstate him. He continued.

“In this connection, we wish to add that your client falls into the category of persons in the board whose retirement or redeployment or both were recommended by the Archer Report as supported by section 35 of the white paper.”

Paragraph 35 of the white paper states:

“35. All senior officers of the Cocoa Marketing Board, the Produce Inspection Division, the Produce Buying Division and the Cocoa Marketing Co who have not been dismissed are to be redeployed outside the cocoa industry on the formation of the Cocoa Council. Those affected are all senior officers of the rank of deputy chief executive, directors, deputy directors, general managers and heads of the various departments and units. The proposed council once established may, in the national interest retain the services of any of the affected officers whose integrity and technical competence are found to be beyond reproach.”

The language of paragraph 35 is clear and unambiguous. It directs that those senior officers who have not been dismissed are to be redeployed outside the cocoa industry when the Cocoa Council is formed and that the said council when established may retain the services of those officers whose integrity and technical competence are beyond reproach. It never conferred on the defendants any power to retire the plaintiffs. Counsel for the defendants has argued that the white paper is a policy directive which has no executive force and creates no rights enforceable by the court. According to him, it may only give cause to administrative sanctions which can be directed against the executive body in accordance with the policy. It must be conceded that this white paper is a policy directive of the government with which, by virtue of section 26 of LI 660, the defendants were bound to comply. If they misapplied the directions contained in the white paper and thereby injured the legally protected rights of another person nothing stopped him from coming to court to have those rights vindicated. What the plaintiffs are simply saying is that so long as the defendants rely on the Archer Report as well as on the white paper to dismiss them they have no such justification. They must look for their “just cause” elsewhere, if they can.

The court is invited to look at and uphold their “re-organisation” and “redundancy” ruse. Counsel for the defendants cited the case of Hindle v. Percival Boats Ltd [1969] 1 All ER 836, CA to support his contention that the onus is on the plaintiffs to prove bad faith against the defendants. He relied particularly on the dicta of Sachs LJ at 842-843 that:

“... once the tribunal is satisfied that the ground put forward by the employer is genuine and is the one to which the dismissal is mainly attributable the onus is discharged and it ceases to be in point that the ground was unwise or based on a mistaken view of facts ...”

The facts in Hindle v. Percival Boats Ltd (supra) are entirely different and the law involved in that case has no application here. There the appellant sued claiming for redundancy payment under section 1 (2) (b) of the Redundancy Payments Act’ 1965 (c 62). Section 9 (2) (b) of that Act provides that “an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.” The Court of Appeal held that the employee had rebutted the presumption that the appellant was dismissed for redundancy. In this case there is no presumption of dismissal for redundancy which enures to the benefit of the defendants. Instead, using the standard test where the facts or reasons for the dismissal are peculiarly within the knowledge of the defendants, the onus lies on them to prove that the plaintiffs were redundant.

It is not the mere mouthing of “re-organisation” and “redundancy” in letters of dismissal or at a press conference that proves that the truth of those facts. Indeed, an employer cannot declare an employee redundant unless any one of these situations exists: (a) where the business ceases; (b) where the place of business is moved; and (c) where the business no longer required the same number of employees to carry out work of a particular kind. There is dearth of case law on redundancy provisions contained in collective agreements such as in clause 78 of exhibit L, flowing from our Industrial Relations Act, 1965 (Act 299). It is otherwise in England where the courts have produced a wealth of decisions on redundancy under this third head. For instance in the recent decision of the Employment Appeal Tribunal (EAT) in Cowen v. Haden [1983] 1 RLR 225 the tribunal went so far as to hold that in considering section 81 (2) of the Employee Protection (Consolidation) Act 1978 (which defines redundancy) it was not sufficient, in order to establish redundancy, to show merely that the requirements of the employers for employees to carry out work of the kind in which the applicant was actually engaged had ceased or diminished, but that it was necessary to show such diminution or cessation in relation to any work that he could have been asked to do. But even if there exists a redundancy situation an employer is not entitled to lay off or dismiss employees out of his mere whim and fancy. He must not contravene an agreed procedure or customary arrangements in his redundancy selection. Cowen v. Haden(supra) illustrates the need for care in defining the group of employees from which candidates for redundancy are sought. This group will not comprise just those who actually do the work which is ceasing or diminishing. Even if there is no other work available which they can contractually be required to undertake they may be able to argue that the selection group should include all those other employees whose work they are capable of performing and could contractually be required to perform. Greig v. McAlpine (Sir Alfred) and (Northern) [1979] 1 RLR 372 also sets out the proper approach to redundancy selection. An employer must adopt reasonable criteria for selection and apply those criteria reasonably and fairly. In particular, if an employer adopts criteria other than length of service, he must be able to show that these reasonable criteria are rationally and objectively applied, and (where larger numbers are involved) on a reasonably structured and comparable basis.

It is true that no evidence was led, but I ask myself whether the defendants’ counsel can genuinely say that the defendants did not make appointments to fill the relative positions of the dismissed plaintiffs. If their posts still subsist and they have been filled then there can be no cessation or diminution in relation to these posts to create the redundant situation. Re-organisation cannot, of course, afford a ground at all for dismissal. As pointed out by Lord Migdail in MacLaughlin v. Paterson (Alexander) [1968] ITR 251 at 256: “There is a distinction between ‘motive’ and ‘reason.’ The motive was re-organisation. The reason for his dismissal was redundancy.” The re-organisation mentioned in the letters of dismissal only points at the motive for the dismissal and their alleged redundancy points to their alleged reasons for the dismissal. I am satisfied from the foregoing that there is nothing before me to support any redundant situation which could have entitled the defendants to dismiss the plaintiffs and, even if there existed any, they failed to prove that their selection of the plaintiffs was fair. This also goes to prop the complaint of the plaintiffs that they were dismissed without just cause.

The concept of unfair dismissal which was introduced in the Constitution to protect the security of the tenure of office of public servants and the remedies based on it are purely statutory and not contractual. Article 1 (2) of the said Constitution, 1979 declared the Constitution as the supreme law of Ghana and that any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void and of no effect. A fortiori no one can contract out of the express provisions of the Constitution. In other words, if a public servant has been dismissed without just cause and contrary to his constitutional protection the fact that he was offered, what is popularly called, a golden handshake which he accepted cannot be a waiver of this protection. This point is well made out by the following passage from the judgment of the Supreme Court in Tuffour v. Attorney-General [1980] GLR 637 at 655-656, CA sitting as SC:

“Neither the Chief Justice nor any other person in authority can clothe himself with conduct which the Constitution has not mandated. To illustrate this point if the Judicial Council should write a letter of dismissal to a judge of the Superior Court of Judicature and that judge either through misinterpretation of the Constitution or indifference signifies acceptance of his dismissal, can it be said that he cannot subsequently resile from his own acceptance or that having accepted his dismissal, he is estopped by conduct or election from challenging the validity of the dismissal? This court certainly thinks not. This court does not think that any act or conduct which is contrary to the express or implied provisions of the Constitution can be validated by equitable doctrines of estoppel. No person can make lawful what the Constitution says is unlawful. No person can make unlawful what the Constitution says is lawful. The conduct must conform to due process of law as laid down in the fundamental law of the land or it is unlawful and invalid.”

The payment and acceptance of their full benefits cannot, therefore, defeat their action. Again, because of this constitutional guarantee, the terms of their contracts of service contained in the Ghana Cocoa Marketing Board Rules and Regulations (exhibit L) which conflict with article 155 (b) shall be void. For this reason the defendants cannot rely on clause 72 to terminate a permanent employment by giving three months’ notice where the employee is not guilty of any misconduct.

In their amended statement of claim the plaintiffs pleaded the following matters:

“9. The plaintiffs further say the second, third and fourth defendants who together constitute the so-called management committee of the first defendants are not a legally constituted body and have not the right, authority or the power to retire the plaintiffs from the service of the CMB, the first defendants herein. The plaintiffs further say, even if the said management committee is a legally constituted body, as senior officers of CMB it is only the board of directors of the CMB who can take decisions affecting their retirement and in accordance with the staff conditions of service, instrument of incorporation and the Constitution. Neither the chief executive alone, represented in this case by the so-called management committee, or any other body has any similar right, authority or power.”

The white paper issued on the Archer Report dissolved the board of directors of the first defendants forthwith and directed that Mr Kwame Pianim, chief executive of the first defendants, should continue to direct the affairs and operations of the board until the establishment of the proposed council which was to replace the Cocoa Marketing Board. It is not denied that Kwame Pianim resigned his appointment whilst the council had not been established. In the meantime the Constitution, 1979 was in operation. The President by exhibit M, appointed the second defendant as chairman and the third and fourth defendants as members of a committee to manage the affairs of the cocoa industry pending the formation of the Cocoa Council. Exhibit M was, ex facio, a personal appointment made by the President and it was clearly aimed at appointing the governing body of a public corporation. This appointment was in clear contravention of article 57 of the Constitution, 1979 because he could only make the appointment with the advice of the Council of State. It was conceded by the defendants’ counsel that on 9 October when the President made his appointment the Council of State had not been constituted. The appointments of the second, third and fourth defendants (which seem to have been made out of necessity) were, therefore, quite irregular. Although their appointments were irregular they constituted the de facto governing body of the first defendants and they could properly execute the lawful powers of the first defendants. What they could not do was to exercise powers not allowed them by either the Constitution or their governing enactment and they remained liable for acts ultra vires of these powers.

The upshot of it all is that as members of the public service I find their compulsory retirement wrongful and without just cause for the reasons I have stated before. In Quayson v. Attorney-General [1981] GLR 295, CA the Court of Appeal held that it would be discriminatory to refuse to restore a public officer to his former post if the recommendation of a commission of inquiry that led to his forced removal was set aside as being wrong in law and that it was precisely against such unjust dismissal or removal from office that article 155 (b) of the Constitution was enacted. The court further held that that provision would be meaningless if a public officer could not be restored to his former post where the court found that his removal was unjust and capricious. The Court of Appeal accordingly ordered the applicant’s reinstatement to his former post.

The defendants’ counsel relied on the decision of Atoong v. Bolgatanga Urban Council, Court of Appeal, 23 February 1970, unreported; digested in (1970) CC 39 as well as on Bank of Ghana v. Nyarko [1973] 2 GLR 265, CA to argue that where there is a contract of service the remedy for wrongful dismissal is damages and not reinstatement. Indeed, in Bank of Ghana v. Nyarko (supra) the court held that the plaintiffs were in no status position but that they were governed by their contracts of service which empowered the defendants to dismiss even without assigning reasons. The plaintiffs in that case were dismissed in 1967 and the court had to consider the Bank of Ghana Act, 1962 (Act 182) and the bye-laws made under that Act to decide whether their dismissal was a nullity. Insofar as both the Constitution, 1969 and the Constitution, 1979, gave protection for public officers against unjust dismissal there was a movement from contract to status, the criteria for dismissal being now firmly settled only on a “just cause.” The movement to this status position to protect the security of employment is now recognised in many other progressive societies. In England, for instance, an employee has the choice to be reinstated or re-engaged under the provisions of the Employment Protection (Consolidated) Act, 1978 for unfair dismissal. The Constitution, 1979 under which the plaintiffs seek umbrage clearly consigned cases like Atoongo v. Bolgatanga Urban Council (supra) and Bank of Ghana v. Nyarko (supra) to the lumber room. I am bound to followQuayson v. Attorney-General (supra). In the result, I give judgment for each and everyone of the plaintiffs as per the indorsements on their writs. I award to each plaintiff ¢5,000 cost inclusive of counsel’s costs.

COUNSEL

J K AGYEMAN (WITH HIM AGYEMAN-BEMPA) FOR THE PLAINTIFFS

R I QUANSAH FOR THE DEFENDANTS.