JOHN ETSIBAH V. AFRICAN MINING SERVICES GH. LTD.

JUDGMENT

HONYENUGA, J.A.

This is an appeal filed by the defendant/appellant, (hereinafter called the appellant), against the judgment of the Circuit Court, Takoradi dated the 31st day of July 2014. The said Court entered judgment for the plaintiff/respondent (hereinafter called the respondent) on his relief claimed.

The facts of this appeal were that the respondent was an auto electrician of the appellant and earned US$477.28 a month. The respondent was said to have been involved in an illegal strike with other employees on duty, as a result, the respondent was interdicted and paid half his salary. The respondent was subsequently invited to appear before a Disciplinary Committee set up by the appellant having been accused of having “called emergency on the radio and also activated siren to gather workforce to hold on operation”. The respondent vehemently denied the accusation. Without following the disciplinary procedure in accordance with the Collective Bargaining Agreement, the appellant terminated the employment of the respondent. Aggrieved by his dismissal, the appellant caused the instant writ of summons to be issued against the respondent claiming as follows:-

“General damages for wrongful termination of employment”.

The writ was accompanied by a statement of claim in which the respondent averred that he was an Auto Electrician with the respondent since 6th December 2007, on a salary of US$477.28 per month. He was interdicted on 18th November, 2011 and subsequently invited to a disciplinary hearing on the 24th November 2011. At the disciplinary committee he was said to have “called emergency on Radio and also activated siren to gather workforce to hold on operations” which he vehemently denied. The respondent further averred that without following disciplinary procedure in accordance with the Collective Agreement, his employment was terminated on the 24th November 2011 without establishing any wrong doing against him. He averred that the committee siting was unfair, bias and inequitable. The respondent also averred that he had since remained unemployed and that his termination is wrongful.

The appellant entered appearance and also filed a statement of defence and denied the allegations made by the respondent and contended that the respondent was involved in an illegal strike together with other employees and the entire lot had their employment terminated. The appellant averred that the respondent was not entitled to his relief as claimed.

The respondent filed a Reply and subsequently filed an Application for Directions which was adopted with its issues for the trial of the action as follows:-

“i. Whether or not the defendant company followed the disciplinary procedure in the Collective Agreement of January 2010 in terminating plaintiff’s appointment?

ii. Whether or not the National Ghana Mineworkers Union of Trade Union Congress and the Local branch of the Union wrote to the defendant complaining about plaintiff’s dismissal.

iii. Whether or not plaintiff’s account at Merchant Bank was temporarily frozen?

iv. Whether or not the plaintiff appeared before the disciplinary committee on emergency call on Radio and activation of siren to gather workforce at the emergency assembly point?

v. Whether or not the plaintiff’s termination was wrongful?

vi. Whether or not plaintiff is entitled to his claim?

Any other issue arising from the pleadings”.

At the end of the trial, the learned trial judge on the 15th July 2014 found that the appellant’s termination of the employment of the respondent was a nullity and therefore wrongful. She accordingly entered judgment for the respondent as against the appellant. The appellant, being dissatisfied with the decision of the trial judge filed the instant appeal based on the following grounds:-

“(a) The judgment given in favour of the plaintiff was against the weight of the evidence.

(b) Additional grounds of appeal shall be filed upon receipt of record of proceedings”

On the 13th January 2015, the appellant filed additional grounds of appeal as follows:-

“1. The trial judge erred in law when she applied public law principles to a private law suit relative to fair hearing.

2. The trial judge erred in law when she failed to consider the evidence of the defendant relating to plaintiff’s involvement in a strike action.

3. The trial judge erred in law when she failed to consider the evidence of the defendant in court relating to the misconduct of the plaintiff.

4. Further grounds of appeal shall be filed upon receipt of the record of appeal”.

I must state that the Additional grounds 2 and 3 are a repetition of the omnibus ground of appeal that the judgment is against the weight of evidence and therefore otiose. I would only consider Additional ground one (1) in this judgment.

Learned counsel for the appellant referred to paragraph 7 of the statement of claim and stated that there were two separate bases for the hearing before the disciplinary committee, namely: (i) ‘called emergency on Radio’ and (ii) ‘activated siren to gather workforce to hold on operations’. Counsel stated that by the conduct of the respondent, it was a workers strike pure and simple. Counsel referred to paragraph 5 of the Statement of Defence in support of his statement. Counsel referred to page 23 of the record of appeal on the petition of the Ghana Mineworkers Union (TUC) against the termination of the respondent was founded on procedural unfairness and not on substantive grounds. Learned counsel referred to Exhibit D at pages 166-167 of the record of appeal and concluded that there were pieces of evidence which link the respondent to the unlawful act which resulted in all employees of the night shift on 10th November, 2011 to stop work. Counsel stated that it is interesting that the siren is located at the workshop and that is what was set off, stopped all the rest of the workers from working and to be assembled at the emergency assembly point for apparently no reason. Counsel referred to page 192 of the record of appeal to the effect that the respondent testified that the siren is at the workshop and he was present then. She also referred to page 195 of the record of appeal to a question whereby the respondent admitted being alone at the workshop when the siren was heard. Counsel contended that the respondent was economical with the truth about the occurrences of the night of 10th November, 2011 because upon hearing the sound of the siren for safety reasons he should have sped out of the container but he said he had to stay on for one minute looking for something. Counsel stated that this was clearly not the response of a responsible person in the circumstances. Counsel also referred to the dialogue on pages 168 and 169 and contended that the normal procedure for emergency meeting was not followed and nobody including the respondent seemed to be interested in following the safety procedure when employees assembled on an emergency call. Counsel referred to page 195 of the record of appeal and concluded that the respondent contradicted his previous evidence on oath that there was a demonstration and yet at page 176 of the record of appeal he denied saying that there was a demonstration. Counsel also referred to page 179 of the record of appeal and contended that the respondent contradicted himself by denying that he spoke to DW2 after the sounding of the siren while admitting at page 168 of the record of appeal that DW2 spoke to him. Counsel referred to Exhibit I at page 182 of the record of appeal, pages 207 and 209, and 210 of the evidence of PW1 under cross-examination which indicated that there was a strike action in which the respondent was involved with others who were dismissed. Counsel referred to pages 214 and 228 of the record of appeal that the respondent’s appointment was terminated and that the respondent after the workers gathered said they were waiting for the Union Chairman to come before they said anything despite all efforts to get them back to work. Counsel contended that the respondent did not challenge these pieces of evidence by DW2 concerning wrongful use of a two-way radio by the respondent.

Counsel argued that the evidence of DW2 contradicted himself when he stated that the respondent did not blow the siren but rather called ‘emergency’ three times on a land radio (used for communication) during the court hearing. Counsel contended that despite the contradiction of DW2’s evidence there is overwhelming evidence that the respondent had misconducted himself and therefore the appellant was justified in terminating his employment. Counsel submitted that this court reverse the miscarriage of justice by holding that the respondent’s conduct was inconsistent with his obligation to the appellant to faithfully discharge his role as an employee.

On the other hand, learned counsel for the respondent submitted on the original ground that the trial judge duly and succinctly considered the pleadings and the evidence before her and came to the right conclusion. Counsel referred to Majolagbe v. Larbi [1959] GLR 190 and Zabrama v. Segbedzi [1991] 1 GLR 221 CA, and contended that the appellant’s submissions were all based on suspicions and could not meet the fine tenets and demands of the principle and therefore the findings of the learned trial judge could not be faulted. Counsel averred that since the respondent denied having been involved in the illegal act, the burden shifted to the appellant as required under NRCD 323 to discharge that burden placed on it. Counsel stated that counsel for the appellant tried hard to establish any involvement of the respondent but failed because Exhibit I at page 182 of the record of appeal did not mention the respondent’s name as part of the alleged workers who went on strike. Counsel stated that the evidence of the respondent was that he heard the siren and so stopped work and proceeded to the Emergency Assembly Point. He contended that the appellant woefully failed to lead any credible evidence against the evidence of the respondent that he was the only one who was dismissed as against the appellant’s assertion that all workers who were on the night shift on 10/11/11 were dismissed. Counsel supported his assertion by quoting to page 85 of the record of appeal which is an aspect of the committee proceeding which involved the cross-examination of Richard Odoom a Supervisor of the appellant. Counsel therefore contended that the cross-examination show that the respondent was not around the workshop when the Ag PM was at the workshop but met the said Richard Odoom when all workers were supposed to move to the Assembly point as asserted by the respondent in line with the Company’s policies. Counsel stated that the committee’s finding at page 86 of the record of appeal was borne out of suspicion. Counsel also referred to the evidence of PW1 on page 204 of the record of appeal and contended that it was established at the trial that only Supervisors had access to hand radio but the respondent was not a Supervisor. Counsel stated that the reliance on Bani v. Maersk Ghana Limited [2011] 2 SCGLR 796 at 814 by counsel for the appellant was to oust the jurisdiction of the court in relation to the issue at stake. Counsel referred to Aboagye v. Ghana Commercial Bank [2001-2002] SCGLR 797; 814 and submitted that the Supreme Court frowns on the attitude of private institutions infringing on procedures set out in their relationship with their employees, and that what is important is that the inquiry must expose a misconduct by the plaintiff. Counsel submitted that the overloaded committee did not expose any misconduct by the respondent when DW2 was talking to him (Richard Odoom). On “fair hearing” counsel submitted that the trial judge rightly pronounced that PW1 and DW2 both corroborated the evidence of the respondent.

Counsel further relied on Aboagye v. Ghana Commercial Bank (supra) at page 806 and quoted the dictum of Bamford Addo JSC on Article 23 of the 1992 Constitution and the application of and need of Natural Justice. Counsel contended that the procedure in the Collective Bargaining Agreement by the appellant and the Ghana Mine Workers Union of which the respondent is a member were not followed. Counsel therefore submitted that the appellant’s committee neither at the committee level nor in court could not prove the allegation against the respondent. Counsel cited Tagoe v. Accra Brewery [2016] 93 GMJ 103SC and Kobi and Ors. v. Ghana Manganese Co. Ltd. [2007-2008] 2 SCGLR 771; 784 and 786, as to the burden of producing evidence and the burden of persuasion in cases of wrongful dismissal. Counsel also referred to Lagudah v. Ghana Commercial Bank [2005-2006] SCGLR 388 which decided that in the absence of a contractual provision to the contrary, an employer is not bound to comply with the rules of natural justice could be distinguished. Counsel contended that in the instant appeal there is a contractual agreement between the respondent as a member of the Ghana Workers Union and the Employer which contract is supported by the Labour Act, 2003, Act 65 (Section 105(2)) which recognized a collective agreement as terms of a contract of employment between each worker and his or her employer. Counsel submits that the appeal must fail.

Now, the omnibus ground of appeal to be considered is that “the judgment given in favour of the plaintiff was against the weight of evidence”. The general principle in determining the omnibus ground of appeal that the judgment is against the weight of evidence, which is by way of re-hearing is that the onus was on an appellant who complains about the omnibus ground to properly demonstrate to the appellate court the lapses in the judgment appealed against before the appellate court assumed its duty. In Amponsah v. VRA [1998-90] 2 GLR 28, it was held that:

“Where (as in the instant case) an appellant charged that the judgment of the court below was against the weight of evidence, there was a presumption that the judgment of the court below was correct. The appellant in such a case therefore assumed the burden of showing from the evidence on record that the judgment was indeed against the weight of evidence”.

Further, the role of the appellate court in such omnibus ground having been filed was considered in Abbey and Anor v. Antwi [2010] SCGLR 17 Holding (4), the Supreme court stated as follows:-

“It was well established that where an appellant has alleged that the judgment of the trial court was against the weight of evidence, the appellate court would be under the obligation to go through the entire record of appeal to satisfy itself that the party’s case was more probable than not. Further, the appellant has to properly demonstrate what lapses he was complaining about”.

See Tuakwa v. Bosom [2001-2002] SCGLR 61, Akuffo Addo v. Catheline [1992] 1 GLR 377 CA, Ayeh and Akakpo v. Ayaa Iddrisu [2010] 1 SCGLR 891; Oppong v. Anarfi [2011] 1 SCGLR 556 Holding (4); Djin v. Musa Baako [2007-2008] SCGLR 686 Holding (1); In re Asamoah (Decd) Agyeiwaa and Ors. v. Manu [2013-2014] 2 SCGLR 909 Holding (2) and Others.

In the instant appeal, I would look at any lapses complained of by the appellant, go through the entire record of appeal to satisfy myself whether the appellant’s case is more probable or not. The common law of Ghana is that, the remedy available to an employee who had been wrongfully dismissed or whose employment had been wrongfully terminated, was an action for damages. See Bani v. Maersk Ghana Ltd. [2013-2014] 2 SCGLR 796 Holding (1). In the instant appeal, the respondent was right in seeking the remedy of wrongful termination of employment in the trial court.

The respondent in paragraphs 6, 7, 8 and 9 of the statement of claim stated the gravamen of his complaint as follows:-

“6. The plaintiff avers that prior to the purported termination of his appointment he was served with notice of interdiction on 18th November and subsequently invited by the defendant to a disciplinary hearing on 24th November 2011.

7. The plaintiff before the disciplinary hearing was said to have “called emergency on the Radio and also activated siren to gather workforce to hold on operations”. An accusation the plaintiff vehemently denied.

8. The plaintiff contends that without following disciplinary procedure in accordance with the Collective Agreement of January 2010 the defendant terminated plaintiff’s appointment.

9. The plaintiff further contends that the defendant’s disciplinary committee set up could not establish any wrong doing on plaintiff’s part to warrant such termination”.

The appellant in paragraph 5 of the statement of defence stated that:-

“5. The defendant avers that plaintiff was involved in an illegal strike action together with other employees and the entire lot had their employment terminated”.

The respondent testified and called one witness (PW1). The appellant also testified through DW1 and called one witness (DW2). Sections 11(4) and (12 of the Evidence Act; 1975, NRCD 323 required that the standard of proof in all civil actions is by proof of the preponderance of the probabilities. The plaintiff therefore had the burden of proving his case by the preponderance of the probabilities to avoid a ruling against him and if the plaintiff fails to discharge this burden, judgment must be for the appellant.

In the instant appeal therefore, the respondent’s action being one for wrong termination of employment, assumed the burden of proving the terms of his employment and that the termination was in breach of the terms of the agreement or contravene statutory provisions regulating employment. The learned trial judge had concluded that:

“I therefore hold that the defendant company’s purported termination of plaintiff’s employment was a nullity and therefore wrongful”.

Could the finding and holding of the learned trial judge be supported in the light of the evidence in the record of appeal? A perusal of the proceedings of the Disciplinary Committee, Exhibit “D” indicate that the siren was at the workshop and the respondent was also at the same workshop and this is contained in his evidence-in-chief at the trial court at page 192 of the record of appeal. In cross-examination at the trial court at page 195 of the record of appeal, respondent stated as follows:-

“Q. You said you were at the workshop when you heard the siren, was any other worker there with you?

A. I was alone”.

The inference to be drawn from this piece of evidence is that it was the respondent who switched on the siren because the siren and the workshop are at the same place and he was alone while the siren sounded. In any case, there is further evidence from DW2 Paul Badu, the Acting Project Manager at page 228 of the record of appeal in his evidence-in-chief that:-

“As plaintiff was leaving the workshop he was holding his hand radio and he said three times, ‘Emergency, Emergency, Emergency”.

At page 230 of the record of appeal, DW2 under cross-examination repeated as follows:-

“Q. Plaintiff did not blow the siren as you told the disciplinary committee hearing.

A. I did not say so. I saw him speaking on the hand radio”.

Furthermore, the cross-examination of the respondent in Exhibit “D” the proceedings of the disciplinary committee at page 167 to 168 of the record of appeal speaks volumes thus:-

“Francis: did you see anyone at the workshop

A: I did not see anyone at the workshop.

Mal: why did you refuse to answer Ag. PM?

John: Moments like this when the siren has been sounded ‘safety must rule the day’.

Mal: How come you refused to answer PM?

John: This is an issue with safety and it supersedes everything at incidents like November 10th, 2011.

Ray: You mentioned that safety is paramount, why then did you keep yourself in the container for about 1 minute?

John: I was searching for something in the room.

Ray: Why then did you refuse to answer Ag. PM?

John: I feel uncomfortable and frighten talking to my bosses.

Thompson: You spent 1 minute coming out from the container, you were not frightened but answering your boss you became frightened, why?

John: Yes, I spent 60 seconds in the encounter with the Ag. PM got me frightened because I am not use (sic) to talking to my boss.

Thompson: Are you saying you did not see Richard Odoom but you saw PM?

John: Yes, because PM spoke to me”.

The inference to be drawn from these pieces of evidence is that the respondent had something to hide by his answers. It is inconceivable for someone who was fleeing for his life to stop for a minute looking for something.

Moreover, at the same page 168 of the record of appeal, the respondent was further cross-examined as follows:-

“Henry: Are you telling us that you did not see anyone at the place, were you the only person at the workshop at the time of sounding of the siren?

John: I cannot tell.

Henry: I put it to you that nobody than you sounded the siren, since there was nobody at the workshop at the time of the sounding of the siren?

John: It was not i.

Edmond: Did you find out who might have sounded the siren?

John: No.

Edmond: Why?

John: I ran out for my safety.

Emmanuel: Whose car was close to the switch of the siren?

John: I did not find out”.

Furthermore, the respondent’s refusal to speak the truth was exposed on page 169 of the record of appeal – Exhibit “D” as follows:-

“France: Have you been taken through emergency simulation processes?

John: No.

Francis: At least you have been through safety inductions at the point of employment and after annual leaves. At emergency assembly point workers are counted, commands are issued and those whom cannot be found are mentioned, look for. Was any of the above done, were you counted?

John: No, but I only heard PM asking us what had happened.

Francis: Who spoke?

John: People spoke including myself.

Francis: What did you yourself answer?

John: I answered ‘unless we see our Union Executives’.

Eshun: Why did you say ‘unless we see our Union’?

John: Because it was demonstration.

It can be deduced from the above statements that the respondent is an organizer of the demonstration of workers for that shift as he called it. However in the trial court, the respondent contradicted himself and denied his previous evidence given on oath. At page 195 of the record of appeal, he stated thus:-

“Q. On 10/11/11 was there any demonstration involving your colleagues of defendant Company at mine site?

A. No”.

A reference to page 176 of the record of appeal in the trial court being the respondent under cross-examination exposed his untruthfulness as he denied having said there was a demonstration earlier as follows:-

“Q. You were part of the shift that worked on the defendant company premises on 10/11/11.

A. Yes.

Q. You admitted before the disciplinary committee that there was a demonstration by the workers of the defendant company including you.

A. No. I did not say that”

On page 178 of the record of appeal, the respondent further stated thus:

“Q. On 10/11/11 there was stoppage of work without prior authorization from the Project Manager under which you worked.

A. Yes, we stopped work. We heard a siren so I stopped work. We have been instructed any time we hear the siren to run to the Emergency Assembly point.

Q. Are you saying that he (PM) did not talk to you at all after the blowing of the siren?

A. Yes. He did not”

From all these pieces of evidence it cannot be said that the respondent was a truthful witness and not contradictory. These constitute misconduct. The evidence of PW1 is clear when he stated that there was an illegal strike and that the respondent blew the siren for the strike action. DW1 who testified on behalf of the appellant stated that there was an illegal strike and that all those who were involved had their appointment terminated including the respondent. Exhibit “2” confirmed the illegal strike and Exhibit “3” is a Memorandum of Understanding between of Ghana Mine Workers Union and the Appellant Company on the illegal strike. DW1 clearly recounted the role played by the respondent in the strike action, especially at page 228 of the record of appeal, where he met the workers who had gathered and the respondent boldly told him that they were waiting for their Union Chairman and Secretary to come before they said anything. DW1 tried to talk the workers to go back to work to no avail. It is thus clear that if the learned trial judge had considered all these pieces of evidence she would have come to the conclusion that the respondent misconducted himself. This ground of appeal therefore succeeds.

I now tackle the first additional ground of appeal that “THE TRIAL JUDGE ERRED IN LAW WHEN SHE APPLIED PUBLIC LAW PRINCIPLES TO A PRIVATE LAW SUIT RELATIVE TO FAIR HEARING”. The learned trial judge had faulted the appellant’s Disciplinary Committee regulations exhibit “C” that they had breached the mandatory procedures as follows:-

“In the instant case, article 8 of exhibit “C” specifies some mandatory procedures to be complied with in the event of an employee who is suspected of having committed an offence or misconduct warranting a disciplinary hearing.

As can be gleaned from the evidence, the members of the disciplinary committee that looked into plaintiff’s case were 10 even though as per the provision in article 8(c) of exhibit “C”, they should have been 5.

In the absence of any tangible number of committee members, I hold that the defendant company did not follow the procedure in the Collective Agreement of January 2010 (Exhibit “C”) in terminating plaintiff’s employment”.

I think that the learned trial judge fell into abysmal error with regard to the law on public law as against delegated decision-making in the private sector, which is not a court of law, quasi court or a creature of statute. In Bani v. Maersk Ghana Limited [2011] 2 SCGLR 796 at p.814, the Supreme Court stated the distinction in the law as follows:-

“It is a paramount principle of public law that public or administrative bodies are supervised by way of judicial review to ensure that they keep within the bounds of their jurisdiction or area of allocated authority. This is an important incident of constitutionalism. A similar policy rationale does not exist for the courts supervising delegated decision-making in the private sector. Indeed, it would be against public policy to subject private sector business units to the same judicial control over their administrative decisions as public bodies. The private sector needs more flexibility and is not expected to operate under the same rules of the game, so to speak, as government and public bodies ....... What is important is that the inquiry, whatever its terms of reference, did in fact expose misconduct by the plaintiff. Lever Brothers Ghana Ltd. v. Annan [1989-90] 2 GLR 385 is authority for this proposition”.

From the authority, it is clear that there is no need to delve into whether the disciplinary committee exceeded its mandate by constituting ten (10) members instead of five but what matters was whether the respondent’s act constituted misconduct. Since the appellant company is a private sector company, public law involving the Court’s Supervisory Jurisdiction by way of judicial review of administrative bodies did not apply. Therefore the appellant’s disciplinary committee exceeding its number cannot be questioned as ultra vires since the appellant has a common law right to dismiss the respondent if misconduct was proved.

On further fair hearing, the learned trial judge made a finding at page 251 of the record of appeal that the respondent was not given an opportunity to cross-examine the witnesses at the disciplinary committee did not constitute a fair hearing thus:

“Plaintiff admitted that he was invited to the hearing and was questioned on his alleged action which he consistently denied committing. This is a situation where the one who reported his alleged misconduct to management, DW2 testified before the disciplinary committee that plaintiff was not given the opportunity to question (cross-examine) him, and yet he is deemed to have had a fair hearing at the said committee sitting! ... this court is of the opinion that plaintiff should have been given opportunity to at least question DW2 given the fact that he had denied committing any offence”.

The law was stated by Osei Hwere JSC while delivering the judgment of the Court of Appeal in Lever Brother Ghana Ltd. v. Annan; Lever Brothers Ghana Ltd. v. Dankwa (Consolidated) [1989-90] 2 GLR 388-389 that:-

“The learned trial judge in our view stated the correct principle of law when he said:

“The law is that where an employee has, infact been guilty of misconduct so grave that it justifies instant dismissal, the employer can rely on that misconduct in defence of any action for wrongful dismissal, even if at the date of the dismissal the misconduct was not known to him. See Boston Deep Sea Fishing and Ice Company v. Ansell [1888] 39 ChD. 339 at 363 CA ...”

Moreover, in Bani v. Maersk (supra) at page 815, the Supreme Court delivered itself thus:-

“It will be noted from the above quotation that the trial judge all but found the misconduct or dishonesty of the plaintiffs proved. His reluctance in saying to seems to stem from his motion that they were not given the accusers. From the principle of law also quoted above which entitles an employer to dismiss summarily an employee he considers guilty of serious misconduct, such as dishonesty, it is evident that the employer is not obliged to set up an investigative process to give the employee a fair hearing. See Presbyterian Hospital, Agogo v. Boateng [1984-86] 2 GLR 381 CA. What is required is that when the employee’s dismissal is brought to question in a court of law, the employer’s action can be vindicated”.

See also Laguda v. Ghana Commercial Bank [2005-2006] SCGLR 388 at 401-402; Aboagye v. Ghana Commercial Bank [2001-2002] SCGLR 797 at 828-831. It is noted that the instant case is one for a claim of general damages for wrongful termination of his employment and it required that the learned trial judge ought to have considered all the pieces of evidence adduced including that of the appellant to arrive at a just and acceptable conclusion to determine whether the conduct of the employer could be vindicated. The conclusion reached by the trial judge is unsupportable in law. The principle of natural justice required that a party ought to have reasonable notice of his case he has to meet and be given an opportunity to make his statement in explanation of any question and answer any arguments put forward against it. In Laguda v. Ghana Commercial Bank (supra), the Supreme Court held that:-

“The core idea implicit in the natural justice principle of audi alteram partem was simply that a party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his statement in explanation of any question and answer any arguments put forward against it. The principle does not require that there must be a formal trial of a specific charge akin to court proceedings. Thus in dealing with the principles of natural justice, one has always to bear in mind that the principles are substantive rather than procedural safeguards. Therefore the fact that a particular formal procedure is not adopted, does not itself imply that the principle has not been applied in an appropriate case”.

In the instant appeal, although the principle of natural justice was not stated in exhibit “C”, the Collective Bargaining Agreement, there is sufficient evidence on record that the respondent was interdicted, he was given an opportunity to state his case on a statement form provided him and he did appear to answer and defend himself of the charges against him before the disciplinary committee. The only snag was that he was not present to listen and cross-examine the witnesses called. The fact that the respondent was given the opportunity to answer and defend himself is sufficient. In any case, PW1 who was a Union Executive member of the appellant and had served on several disciplinary committees before he got his sack testified that it is not the procedure for those ‘accused’ to be present to cross-examine witnesses who testify against them. This was corroborated by DW1 who testified on behalf of the appellant company at page 220 of the record of appeal when he was under cross-examination as follows:-

“Q. At the disciplinary committee, plaintiff was not given opportunity to cross-examine the witnesses called to testify against him.

A. Yes. It is not the procedure for an employee to be allowed to cross-examine a witness and plaintiff did not ask for that opportunity”.

As a matter of fact, there is no contractual provision for accusers’ to cross-examine witnesses. The fact that the respondent was not given the chance to cross-examine witnesses did not matter, for the respondent’s conduct was not compatible with the faithful discharge of his duties to the appellant company. Further, the law is that what was essential for determination was whether the plaintiff had been given an opportunity to react to the charges laid against him – see Awuku Sao v. Ghana Supply Co. Ltd. [2009] SCGLR 710. In the instant case, I am satisfied that the respondent was given adequate opportunity to react to the charges laid against him.

Finally, on the recommendations made by the disciplinary committee in their report, Exhibit “E”, I think that recommendation one (1) and five (5) had a nexus to the evidence on record. The appellant therefore was justified in terminating the appointment of the respondent for misconduct.

The general rule is that an appellate court should be slow in interfering with the findings of fact made by a trial court. However, an appellate court could disturb the findings of a trial judge where the findings of act were wholly unsupportable. See In Re Okine (Decd) and Another v. Okine and Others [2003-2004] SCGLR 582 holding (1):-

“An appellate court must not disturb the findings of fact made by a trial court, even if the appellate court would have come to a different conclusion, unless the findings of fact made by the trial judge were wholly unsupportable”.

In this instant appeal, the findings of fact made by the trial judge were wholly unsupportable and are hereby set aside. This ground of appeal succeeds.

In conclusion, the appeal is allowed and the judgment of the Circuit Court, Takoradi, dated the 31st day of July, 2014 is hereby set aside.

SGD

HONYENUGA JA (PRESIDING)

JUSTICE OF COURT OF APPEAL

SGD

GYAN JA

JUSTICE OF COURT OF APPEAL

SGD

SUURBAAREH JA

JUSTICE OF COURT OF APPEAL

COUNSEL

MISS PANDA ARNOH MENSAH FOR THE DEFENDANT/APPELLANT

MR. PHILIP BUCKMAN FOR THE PLAINTIFF/RESPONDENT