JACKSON K. ANKOMAH & ORS V. ALL NATION UNIVERSITY

  J U D G M E N T 

ADJEI, J.A:

On 24th April, 2015 the High Court Koforidua dismissed the Plaintiffs' claims which sought to declare their dismissal as unlawful and damages for wrongful dismissal, unlawful arrest and detention and false imprisonment. The Plaintiffs dissatisfied with the said decision of the trial High Court appealed against same to this Court on 17th June, 2015. The parties in this appeal will maintain their respective designations before the trial High Court. Therefore, for ease of reference the Plaintiffs/Appellants will be referred to in this appeal as Plaintiffs and the Defendant /Respondent as Defendant.

The Plaintiffs who were employees of the All Nations University were dismissed summarily on 4th June, 2010 by dismissal letters addressed to each Plaintiff and signed by the President of the University. Prior to the Plaintiffs dismissal there was a meeting held at the university in which the Plaintiffs who were employed as accounts officers were alleged to have conducted their duties and responsibilities without diligence. At the said meeting, the Plaintiffs alleged that they were falsely imprisoned in an office by the Defendant under the guard of his personal assistant known as Adriana Ion. The Plaintiffs averred that during the period of detention on the instructions of the Defendant, they were not allowed to talk, do anything including attending natures call and were there for over three hours when the Defendant brought policemen to the University premises to arrest them under a false complaint that they had misappropriated monies belonging to the University. The Plaintiffs upon their arrest were marched through the University campus to the full glare of other employees and students of the University. The police took the Plaintiffs to the Regional Police Headquarters in Koforidua and detained them in their custody until the evening of the following day before they were granted police enquiry bail. A query letter was served on each Plaintiff to respond by the Defendant but the Plaintiffs collectively replied that they would respond to the query letters at the appropriate time and not within the time limit specified in their respective query letters. The Defendant subsequently dismissed all of them summarily on grounds of impropriety. The alleged impropriety was based on the allegations levelled against the Plaintiffs by the external auditor in his report. The Plaintiffs dissatisfied with their arrest and dismissal brought this action against the Defendant claiming inter alia, that their dismissal was unlawful and are entitled to damages and damages for unlawful arrest, detention and false imprisonment. The trial High Court Judge in his judgement dismissed all the reliefs sought by the Plaintiffs. The Plaintiffs dissatisfied with the judgement of the trial High Court filed their notice of appeal and raised the following grounds of appeal.

"(i) That the judgement is against the weight of the evidence.

(ii) That the learned trial judge erred in law on the  facts when he held that" In my view when the plaintiffs refused to answer the query from their employer to put forward their version of the allegations of embezzlement, failure to properly account for money and other serious allegations of malfeasance against them, they gave their employer no option but to dismiss them from employment." And that error has occasioned a miscarriage of justice.

 (iii)That the judgement is unbalanced and totally tilted in favour of the defendant and that has resulted in a miscarriage of justice.

(iv) That the learned trial judge was wrong in holding that" in my view the police were material witnesses and ought to have been called by the plaintiffs to give evidence" and that occasioned a miscarriage of justice.

(v) The learned trial judge grievously erred in law by applying section 11(4) and 12 of the Evidence Act 1975 NRCD 323 to determine the case of the defendant who charged the plaintiffs of having embezzled his GHC 500,000 and that occasioneda grave miscarriage of justice.

(vi)  That the learned trial judge erred by failing to determine the impact of the audit had on the decision that resulted in the dismissal of the appellants and that has occasioned a miscarriage of justice."

The Plaintiffs did not file additional grounds of appeal even though they had indicated in their notice of appeal that they may file additional grounds of appeal on receipt of the record of proceedings.

We shall determine the proprietary of relief (a) of the endorsement on the writ before discussing the grounds of appeal. The relief (a) of the endorsement on the writ provides thus:

"An order of certiorari to quash the decision of the defendant and to reinstate plaintiffs as employee."

  An application for certiorari is regulated by the High Court (Civil Procedure) Rules C.I 47. Order 55 of the High Court (Civil Procedure) Rules C.I 47 provides that an application for judicial review shall be by an application. Order 55 rule 1 of C. I. 47 provides thus:

 "An application for:

1. an order in the nature of mandamus prohibition, certiorari  or quo warranto ; or
2.   (b) an injunction restraining a person from acting in any public office in which the person is not entitled to act; or
3.  (c) any other injunction shall be made by way of an application for judicial review to the High Court”.

An application for judicial review for the enforcement of administrative justice may also be brought under article 23 of the Constitution of Ghana, 1992. Article 23 makes provision for judicial review for the enforcement of administrative justice which is independent of judicial review to supervise the lower courts and lower adjudicating bodies provided by article 141 of the Constitution. 

Article 23 of the Constitution provides thus:

 ”Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decision shall have the right to seek redress before a court or other tribunal."

Where a person alleges that a provision in the Constitution with respect to a breach of fundamental human rights that relates to him, article 33 of the Constitution provides that such an applicant may apply to the High Court for redress. Order 67 of C.I.47 which regulates action brought under article 33 of the Constitution provides that such an action shall be initiated by an application. Order 67(1) of C.I.47 provides thus:

 "A person who seeks redress in respect of the enforcement of any fundamental human right in relation to the person under article 33(1) of the Constitution shall submit an application to the High Court." 

The law is that an application for certiorari is filed in the High Court by an application and not by a writ as the Plaintiffs purported to do. Certiorari may be obtainable from the High Court under either Order 55 or 67 of the High Court Rules or at Common law depending on whether or not the application for judicial review in the nature of certiorari is to be used to supervise lower courts and lower adjudicating bodies or for an enforcement of fundamental human rights in relation to the applicant. In the case of Awuni v. West African Examinations Council [2003-2004]1 SCGLR471, the courts entertained a writ for an enforcement of administrative justice because at that time the Rules of Court Committee has not come out with C.I. 47 to regulate practice in the High Court. The law is that where a specific rule has been provided for the institution of an action, it is that procedure alone that must be followed. The law was settled in the case of Boyefio v. NTHC Properties Ltd [1996-97] SCGLR 531 where it was restated that where an enactment prescribes a special procedure by which an action is to be instituted, it is that procedure alone that must be used. The effect of using a wrong procedure to initiate an action renders it void and cannot be cured as an irregularity. This is comparable to appeals and review in the sense that they are created by statute to invoke the jurisdiction of the courts and failure to file the process within the time frame provided by law or using a wrong procedure to invoke that particular jurisdiction will render the process void. Under such circumstances, no court can enlarge the time outside the one provided by the statute which created that right. Additionally, the courts would lack power or jurisdiction to save the wrong procedure that was used to invoke the jurisdiction created by that law. Such processes including the one in question are incurably bad. The wrong procedure used by the Plaintiffs goes to the root of the matter. It is the subsequent infraction of the rules after the action has been properly filed in accordance with law that may be cured under the irregularity rule which provides that non-compliance with the rules shall not render the proceedings void. This Court in case of Republic v. Perkoh 11; Ex parte Erzoah Civil Appeal No 46/2000 ( unreported ) discussed the legal effect of using wrong procedure to initiate an action thus:

 " ... Where an enactment sets out a procedure for invoking the jurisdiction of a court, a party must comply with it or be thrown out of court. The rule that non- compliance can be cured is referable to steps in the action. The rule does not confer authority to authorize disregard of rules of court. What the rules tolerate by way of infractions are the steps that are taken in the action, that is, after the appropriate originating process had been filed out at the right place and is before the right forum."

The above ratio was quoted with approval by the Supreme Court in the case of Republic v. High Court, Koforidua ; Ex parte Asare( Baba Jamal and Others Interested parties) [2009] SCGLR 460.

The above issue was raised suo motu and discussed by this Court as it is not answerable and will not serve any useful purpose to give the parties the opportunity to address on it. In the case of  Tindana (No2) v. Chief of Defence Staff and Attorney -General (No 2) [2011] 2 SCGLR 732 the Supreme Court held that a court may raise an issue on its own motion and deal with it where the issue raised is clearly unanswerable to admit any legal argument and would be an exercise in futility to invite both counsel to address on it. Relief (a) on the writ cannot have been granted on an action instituted by a writ of summons.

We shall address grounds (ii), (iii), (iv), (v) and (vi) of the appeal together under ground (1) as they have the same legal effect; that is, the judgment is against the weight of evidence on record. An appellant who alleges that a judgement is against the weight of evidence on record is required to demonstrate that there were lapses in the judgment and as a result of the lapses the judgement has been wrongly entered in favour of the person who should have lost. Put differently, the trial judge either wrongly discussed evidence which should have inured to the benefit of the appellant in favour of the respondent or the court failed to evaluate important evidence on record which should have tilted the case in favour of the appellant or both. The duty is on the appellant to demonstrate from the record of appeal the evidence which were wrongly evaluated or those which were not evaluated at all or both and if evaluated according to law should reverse the judgment. From the above, it becomes clear that it is not every evidence not evaluated or improperly evaluated that would overturn the decision but the evidence that is substantial to impact on the judgement. A person who alleges that a judgement is against the evidence on record invites the appellate court to review and rehear the entire evidence on record including viva voce and documentary evidence on record and come to the conclusion that some vital evidence on record were not evaluated and discussed in accordance with the standard burden of proof in civil matters or vital evidence was not considered at all or both and the appellate court is required to correct the mistakes committed by the court below in favour of the appellant in accordance with law. The Supreme Court in the case of Djin v. Musah Baako [2007-2008] 1 SCGLR 686 in headnote 1 at page 687 summed up the meaning of judgement is against the weight of evidence on record and burden the appellant must discharge thus :

"...an appellant complains that a judgement is against the weight of evidence , he is implying that there were certain pieces of evidence on the record which, if applied in his favour , could have changed the decision in his favour , or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgement being appealed against." 

The Plaintiffs are asserting that the trial High Court Judge misapplied the effect of the delay in replying to the query served on the Plaintiffs by the Defendant. The trial Judge held that the Defendant gave the Plaintiffs the opportunity to be heard but the Plaintiffs refused to state their version of the matter within the time specified in the query letter. Each Plaintiff was served with a query letter and were admitted without objection as exhibits" 2," "2A,"2B "and "2C". In all the exhibits, the Plaintiffs were required to respond to questions emanating from the external auditor's report. The Plaintiffs were told in the query letter to state their version and explain why disciplinary measures should not be taken against them based on the adverse findings made against them by the external auditor. 

They were to respond and submit to the Defendant within forty eight (48) hours on receipt of the query. The Plaintiffs on receipt of the query did not respond to the allegations made against them but wrote to inform the Defendant that they would not respond within the specified date but would do it at the appropriate time. The first paragraph of the Plaintiffs letter dated 3rd June, 2010 provides thus:

 "With reference to your query letters dated 27th May 2010, we write to acknowledge the receipt of the query letters and therefore state that the said letters would be responded at the appropriate time".

The above letter is self-explanatory. The Plaintiffs did not complain about the time frame within which they were to respond to the query but simply stated that they would  respond at the appropriate time. The Plaintiffs disabled themselves from stating their version to the Defendant’s query and the Defendant was right when he accepted the adverse findings made against the Plaintiffs by the external auditor. The rigid rules on examination in chief, cross examination and re-examination are required to be followed by the courts and not administrative and inquisitorial bodies except where the law regulating the body expressly states so. Administrative bodies and officials are to act reasonably and fairly and must comply with requirements imposed on them by law. The query letters served on the Plaintiffs constituted a hearing as there was no provision in their appointment letters providing otherwise. The appointment letters issued to the Plaintiffs were tendered as exhibits "C"," C1" and "C2". 

We have examined the appointment letters of the Plaintiffs and there is no provision in any of them prescribing a particular mode of trial or hearing against any of the Plaintiffs. The Defendant was therefore justified by taking their letter, exhibit "1" as a waiver of their right to be heard on the external auditor's report. The fact that the Plaintiffs were given the opportunity to be heard but decided to give their version at their own convenience constitute a waiver of right and cannot turn round to state that they were not given a hearing. The constitutional provision on administrative justice imposes a duty on administrative bodies and officials to act fairly and reasonably within the context of the law which established them. Article 23 of the Constitution of Ghana, 1992 provides thus:

 "Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal”.

 From the evidence on record, the Defendant complied with the requirements of the rule on fair hearing and this Court cannot interfere with the findings by the trial High Court which is supported by the evidence on record. The law generally is that a person shall not be condemned without a hearing but where the opportunity is offered and person fails to take advantage of it except where the law or the contract provides otherwise, he would be deemed to have been given a hearing. That is the rationale behind the principle that the standard of natural justice and fairness are fairly flexible. Halsbury's Law of England  (4th ed) Vol 1 paragraph 4 which was quoted with approval by the Supreme Court in case of Aboagye v. Ghana Commercial Bank [2001-2002] SCGLR 797 at page828 provides thus:

  "The standard of natural justice and fairness are highly flexible although the two cardinal principles stated above must normally though not invariably be observed, the precise procedure to be followed in a given situation depends upon the subject -matter of the decision or adjudication and upon all the circumstances of the case."

 Having considered all the circumstances of the case, we are satisfied that the Plaintiffs were given the opportunity to be heard but they waived their right. The Defendant cannot be condemned for denying the Plaintiffs a hearing because looking at the facts and circumstances of the case, he complied with the test of fairness and reasonableness required of administrative bodies and officials. The Plaintiffs purported to offer their explanation to the query during the trial of the substantive matter but was belated and decision had already been taken on it. There was no need for the trial High Court judge to determine the impact of the audit on the judgement as raised by the Plaintiffs as one of the grounds of appeal because it had become moot at the time of the trial. The first Plaintiff in his evidence in chief had this to say:

" My lord what I have to say about paragraph 19 being professional misconduct they stated in relation to the issuance of receipt and improper documentation of expense is that we issue receipt to any student of the University when they pay fees..."

The appropriate time the Plaintiffs should have offered their explanation was within the forty eight hours when the query was served on them and failure to respond to it within time caused their dismissal. The chapter on the query was closed for further discussion when they failed to answer to the query and were dismissed on the findings from the audit report. They were therefore properly dismissed by the University per a dismissal letter dated 4th June, 2010. Having failed to respond to the query, the only option available to the University was to take all the issues raised by the external auditor as the truth of the matter. The Defendant made reference to the query and the questions the Plaintiffs were required to answer and concluded that they had been dismissed based on the several issues of impropriety raised against them by the external auditor.

Apart from a dismissed employee complaining about breach of the rules of natural justice which is embedded in every adjudicating process; the employee must demonstrate a clause or the provision in the collective agreement or statute which the employer has acted contrary to it. This position was discussed in the case of Ijanyi and others v. De Simone Ltd [1989-90]1GLR 133 by the High Court and the principle was well stated by the Court. It held thus:

" Where in a claim for unlawful dismissal , the plaintiff did not lead evidence , as to any collective agreement existing between the plaintiff and the defendant and as to the relevant terms of the agreement and which the dismissal contravened , nor lead evidence as to provisions of any statute which the dismissal contravened, the claim will fail".

The Plaintiffs have failed to prove that the Defendant has breached any provision of their terms of contract and his conduct is in breach of that provision and therefore renders the dismissal unlawful. Having dismissed the ground on failure to give hearing to the Plaintiffs, there is no valid ground for the Plaintiffs to complain about unlawful dismissal.

  The Plaintiffs have been using the terminologies unlawful dismissal and termination interchangeably. From the evidence on record, the Plaintiffs were summarily dismissed. Exhibit "D1" is captioned “RE SUMMARY DISMISSAL".  Dismissal applies to a situation where the conduct of the employee is contrary to the code of conduct or the statute regulating the contractual relationship. In the case of dismissal, the employee must be given a hearing and a provision to the effect that the employer may dispense with hearing would be declared void. In the case of Wisemen v. Borneman [1971] AC 297, Lord Byles held that where a statute fails to make provision for hearing in the case of dismissal, the courts must supply the omission for the legislature. In the case of Spackman v. Plumstead District Board of  Works (1885)10 App Cases 299  it was held that a decision without an essence or semblance of justice is a nullity as the decision would be deemed to have been taken outside the jurisdiction of the decision-making  body. There is, however , no inflexible rule for the hearing except where it is expressly stated. A person who is dismissed forfeits almost all his benefits except a voluntary contribution made by him unless the contractual document provides otherwise. In the case of termination, none of the parties is under obligation to assign reason but it must conform to the conditions of service and where it provides that notice or payment in lieu of notice to be made, it shall be complied with else it would constitute unlawful termination and the party who has been disadvantaged may bring an action for damages. In the case of Bannerman-Menson v. Ghana Employers' Association [1996-97]SCGLR 417 the Supreme Court held that in termination of appointment there is no legal requirement imposed on a party to assign reason why he cannot work with someone anymore but equitable principles on termination with respect to notices or salary in lieu of notice demands that the contract document between the parties must be comply with. The Plaintiffs were dismissed by the Defendant and the issue of termination does not arise. We will therefore ignore the submissions made by the Plaintiffs in their written submissions on unlawful termination as being irrelevant.

The case in point is distinguished from the case of Aboagye v. Ghana Commercial Bank supra where the collective agreement provided for a particular procedure to be followed but was not complied with by the employer. 

 Another issue which is a subject matter of appeal before this Court was the finding by the trial High Court Judge that the Plaintiffs failed to prove their case on the preponderance of probabilities when they failed to call the police to testify to the lawfulness or otherwise of their arrest. The standard burden of proof in civil matters is proof by the preponderance of probabilities and sections 11(4) and 12(1) of the Evidence Act do not provide for any exception to the rule. The Supreme Court in the case of Adwubeng v. Domfeh [1996-97] SCGLR 660 settled the position of the standard burden of proof and it held that the burden of proof in civil matters is proof by the preponderance of probabilities and there is no exception to the law. The burden to prove unlawful arrest, detention and false imprisonment of the Plaintiffs must be proved by the Plaintiffs in accordance with law. The Plaintiffs' case was that they were detained and falsely imprisoned by the Defendant before the Defendant brought in the police to cause their arrest. The first Defendant testified on the false imprisonment and unlawful arrest thus:

  "My lord, we were kept in the office for about an hour and the president came back with two people in their civilian clothing and pointed at me, ' This is Jackson Ankomah , this is Duodu Bimpong , Samuel Kodua and Charlotte Amobea and they are the people who have stolen the University's money, arrest them.' Lo and behold they showed their identity cards".

Under cross examination he stated that they were detained by the Defendant's secretary on the instructions of the Defendant and could not attend natures call as they were confined to the room in which they were detained. He further stated that the Defendant drove the police from the police station to arrest them at the University campus. On a question suggested to him under cross examination, he admitted that he did not see the Defendant driving the police to the University but was optimistic that it was he who drove them. The 2nd Plaintiff also testified that they were detained in her office on the instructions of the Defendant. The Defendant called one of the Vice Presidents of the University by name Samuel Aboagye Danso. He disputed the issue of unlawful imprisonment, detention and arrest. He testified as follows:

"My lord I say it is not true that the institution confined detained and directed the police to come and arrest them because after the meeting with the president they were asked to go back to their offices. They did not even know that we were calling the police and in their office, Mr. Ankomah had a private washroom so they had every amenity available to them and there was no restriction on their movement. My lord Mr. Ankomah in his office has his own private washroom". 

 Under cross examination, he responded that he did not tell the police to arrest them but rather said these are the people to be investigated. Adriana Ion, the personal assistant to the Defendant also testified.  She denied detaining or falsely imprisoning the Plaintiffs. She said that the only role he played was that he accompanied the Plaintiffs with an I.T personnel to change the password to the computers used by the Plaintiffs to prevent them from tampering with the computer. They left soon after the I.T personnel had done the assignment. Even though the Plaintiffs claimed that the witness detained them under the instructions of the president, he was not challenged on that vital evidence when she was under cross examination. The trial High Court judge was right when he made a finding of fact that the Plaintiffs failed to prove the unlawful arrest, detention and false imprisonment. The trial judge was also right when he held that the police were material witnesses for the Plaintiffs and they should have called them to testify on their behalf. We are satisfied that the Plaintiffs failed to prove their case by the preponderance of probabilities that it was the Defendant who instructed the police to cause their arrest. We do not therefore have any justification to interfere with the findings of fact made by the trial High Court judge in accordance with law.  In the case of Agyenim-Boateng v. Ofori and Yeboah [2010] SCGLR 861 the Supreme Court held that where findings of fact made by the trial court were based on solid grounds on both facts and law, an appellate court does not have any right to interfere with those findings.

We come to the conclusion that all the grounds of appeal are without merits and same are hereby dismissed. We hereby affirm the judgement of the High Court delivered on 24th April, 2015.

  (sgd.)

DENNIS ADJEI

JUSTICE OF APPEAL

SOWAH, J.A                                                                   

I agree  

 (sgd.)

CECILIA SOWAH

JUSTICE OF APPEAL

MENSAH, J. A                                                 

I also agree      

    (sgd.)

L.L. MENSAH

JUSTICE OF APPEAL

COUNSEL

ASURE NAPARI ESQ. FOR THE PLAINTIFF/APPELLANT

K. AMOAKO ADJEI ESQ. FOR THE DEFENDANT/RESPONDENT AND WITH HIM IS SULEMANA MUSAH ESQ.