DANIEL MOORE APRAKUSU V. MINERALS COMMISSION

JUDGMENT

DODOO (MRS), JA

The Complainant/Appellant (who shall in this Judgment be referred to as the Appellant) was employed by the Respondent as its internal auditor per a letter of appointment dated 6th November, 2007 to take effect from 3rd December, 2007.  On 25th July, 2016 he was invited to appear before a special fact-finding Committee set up by the Respondent in relation to the Secretariat’s accounts and accounting practices.  He appeared before the committee on 2nd August, 2016 and following on that, received a letter dated 31st August, 2016 terminating his appointment on the ground that his “conduct does not meet the highest standard of efficiency and integrity required in the Commission’s Regulations.”  After exhausting all the internal mechanisms for redress, he filed a complaint of unfair termination before the Labour Commission (The Commission).  The sole relief was for reinstatement effective from the date of his termination.



It was his complaint that the procedure used in terminating his appointment was unfair, discriminatory and did not follow any known disciplinary procedure. It was his case that no case of misconduct was alleged against him by the Respondent, no Committee was formed to investigate him and he was neither issued with a query nor given any opportunity to be heard in respect of any allegation.  It was his claim that it was only after he had honoured an invitation to appear before the Special Committee in respect of accounts and accounting practice that he was issued with a letter of termination.

The Respondent’s version of events was that the Appellant as Internal Auditor was invited by a Special Committee to “clarify issues arising from information provided to the Special Committee, including issues relating to payment of allowances of staff without due regard to the Commission’s policies and regulations, failure to perform his work with diligence and responsibility, failure to satisfactorily safeguard the financial resources of the Commission and failure to maintain integrity and independence in his work.”

It was the Respondent’s case that the Appellant admitted to his non-compliance with the regulations for management of its funds and took responsibility for any lapses in the Audit Unit.

According to the Respondent, the Special Committee made specific findings against the Appellant and submitted that its termination of his appointment was in accordance with the Conditions of Service for Staff of the Minerals Commission.

The Labour Commission found that the termination was made pursuant to Clause 66 of the Conditions of Service (Exhibit MC 3).  This stated as follows:

“the appointment of an employee may be terminated if the services of the individual prove unsatisfactory.  The appointment of an employee may also be terminated for the following reasons: i) if the conduct of the employee does not meet the highest standard of efficiency and integrity required in the Commission’s regulations.”

The Commission also found that Clause 28 B (1) of the Disciplinary Policy and Code of Conduct (Exhibit MC1) provided that no disciplinary action shall be taken against any employee until an opportunity is given to him to be heard within a reasonable time.  Clause 28 C provided that the CEO may cause an ad hoc committee to be constituted to investigate specific alleged misconduct.

The Commission found that the Appellant had neither been charged with any offences nor had he been taken through any disciplinary procedure.  He had not also been given the opportunity to comment on the Special Committee’s findings before his appointment was terminated.  Referring to Republic v. Ghana Railway Corporation Ex-parte Appiah and Anor (1981) GLR 753 the Commission posited that the principle of natural justice required a person to be given reasonable notice of the case he has to meet and ought to be given an opportunity to make his statement in explanation of any question or arguments put forth against him.  The Commission also referred to Aboagye v. Ghana Commercial Bank Ltd (2001-2002) SCGLR797 stating that all courts and adjudicating bodies were required under Article 19 of the Constitution to give a fair hearing within a reasonable time (see p. 305 ROA and expand per Bamford Addo JSC).

The Commission listed the remedies for unfair termination found at section 64 of the Labour Act, 2003 (Act 651) as follows:

(1) A worker who claims that the employment of the worker has been unfairly terminated by the worker’s employer may present a complaint to the Commission.

(2) If on investigation of the complaint the Commission finds that the termination of the employment is unfair, it may

(a) order the employer to re-instate the worker from the date of the termination of the employment;

(b) order the employer to re-employ the worker, in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or

(c) order the employer to pay compensation to the worker.”

After reviewing the facts and evidence, the Commission was of the view that the Appellant was not charged with any specific offence of misconduct to answer before the Special Committee which was investigative in nature.  He was also not charged with any offence after the Special Committee’s hearing.  In view of this, it found that the Respondent did not hear the Appellant before coming out with a finding that his “conduct did not meet the highest standard of efficiency and integrity required in the Commission’s regulations” before proceeding to terminate his appointment on that ground.

It further found that the procedure for the termination and the termination itself was flawed and unfair.  Although the Appellant had requested for reinstatement, the Commission relying on Ghana Cocoa Marketing Board v. Agbettor and Others (1984-86) 1 GLR122 where it was stated “where reinstatement is impracticable, damages going beyond the period of notice might be awarded”, made an award in damages.  It also stated the dictum in Ashun v. Accra Brewery Ltd (2009) SCGLR 81 as follows: “A contract of employment is not necessarily a contract till retirement age. In other words, a contract of employment, though it may be for an indefinite period, does not mean life employment.”

Its final orders to the Respondent were:

a. The Respondent shall make payment of twelve (12) months total basic salary exclusive of tax.

b. The Respondent shall make three (3) months basic salary in lieu of termination, if not already paid.

c. The Respondent shall pay cost of GH¢1,000.00 awarded to the Complainant on 21st November, 2019 by the Commission if not already paid.

Aggrieved by this decision, the Appellant has filed a Notice of Appeal which contains the following grounds of Appeal:

1.  The National Labour Commission erred when it failed to reinstate the Complainant/Appellant.
2. The compensation the National Labour Commission awarded to the Complainant/Appellant has no legal basis.
3. The National Labour Commission erred when it based the remedies awarded the Complainant/Appellant on the decisions in Ghana Cocoa Marketing Board v. Agbettor and Ashun v. Accra Brewery Limited.
4. The remedies the National Labour Commission awarded/gave the Complainant/Appellant are unfair in the circumstances of the case.
5. The National Labour Commission erred when it failed to award substantial cost for the Complainant/Appellant.

Further or other grounds to be filed upon receipt of the record of appeal.

The reliefs sought in the Appeal were:

1.  An order to set aside the part of the decision of the National Labour Commission complained of and to reinstate the Complainant/Appellant to the rank he would have attained were his employment not unfairly terminated.
2. An order for the payment of the Complainant/Appellant’s salary and all other entitlements from the date of the termination of his appointment to the date of judgment together with interest
3. Award of Damages to the Complainant/Appellant against the Respondent/Respondent for the unfair termination of his employment.
4. Award of costs including lawyers’ fees

Appellant’s Arguments

The Appellant proceeded to argue grounds 1,2 and 5 abandoning ground 3 and 4. The underlisted grounds were thus confined to the following:

1.  The National Labour Commission erred when it failed to reinstate the Complainant/Appellant.
2. The compensation the National Labour Commission awarded to the Complainant/Appellant has no legal basis.
3. The National Labour Commission erred when it failed to award substantial cost for the Complainant/Appellant.
4. 
   

He contended that it was the ratio in GNTC v. Baiden that where it was impractical to reinstate a person whose appointment had been unlawfully terminated, compensation could be awarded.  However, the Commission had not disclosed that there was anything which made reinstatement impracticable.  He argued that the Commission therefore erred in awarding compensation instead of reinstating him.

It was also his contention that the Commission did not explain the reason why it had made an award of compensation of 12 months salary exclusive of tax.  He argued further that the Commission should have made its award with reference to the current Conditions of Service dated 12th February, 2019 particularly in reference to clauses 69 and 70 which provided as follows:

69 (b) – the following shall be the provisions for the payment of long service awards; where an employee has done 70% of the period for the next award and leaving the service of the commission, he shall be given the cash award benefit but pro-rated in addition to the benefit in kind.

70 (c) – end of service benefit; on leaving the service of the commission, any other employee who has served for at least 5 years shall be given the option to purchase a saloon car allocated to him or her by the commission.

70 (e) After working for at least 5 years continuously, an employee shall be paid repatriation allowance of 25% of the basic annual salary.

70 (f) Golden handshake – the Commission shall pay a “golden handshake” of 3 months basic salary to an employee who works till retirement age with the Commission.

It was his case that he would have been at the rank of a Director of Audit at the time the ruling of the Commission was delivered.  Consequently, his benefits calculated in terms of the conditions of service referred to would exceed the awards the Commission made to him.  Referring to Hadley v. Baxendale (1854) 9 Ex. 341, the Appellant urged the court to put him as far as money is concerned the position, he would have been had there not been a breach in the contract he had with the Respondent.  Therefore, to do so, he should be paid his salaries, allowances and all privileges he would have enjoyed had his employment not been truncated.

His plaint was also that the costs awarded were woefully inadequate and prayed this court to award substantial costs to compensate him for engaging counsel and other sundry expenses such as transportation costs.

 The Respondent’s Submissions

The Respondent informed the Court that as at the date the Commission delivered its Ruling, the Appellant was 9 months away from retiring from public service.  It was also their contention that at the time the parties filed their written submissions in respect to this appeal, the Appellant had already attained the compulsory retirement age.

It was their case that the Appellant who until his appointment was terminated was the Head of Internal Audit of the Respondent entity.  The Respondent on 7th July, 2021 appointed a Special Committee to conduct investigations into allegations of financial irregularities and malpractices in its operations. The Appellant was invited as head to appear before the Committee to answer questions on issues relating to the payment of allowances to staff without due regard to the Respondent’s policies and regulations, failure to perform his duties with due diligence and responsibility, failure to satisfactorily safeguard the Respondent’s financial resources and failure to maintain integrity and independence in his work. It was their case that the Appellant admitted to his non-compliance with the regulations in place and further took responsibility for the lapses in his unit, such as allowing payments to staff that were contrary to laid down policies.  On the basis of this, adverse findings were made against him resulting in the termination of his appointment.  It was their case that given the circumstances of his termination, it is impracticable for an order for reinstatement.

The Respondent also argued that it was not open for the Appellant to rely on the new conditions of service which were not in existence at the time of his termination.  Introducing this in his appeal was akin to adducing fresh evidence on appeal without leave of the court and should not be countenanced. See Poku v. Poku (2007-2008) SCGLR 996.

The Respondent submitted that there was a difference between “unfair termination” and “unlawful/wrongful termination” and referred to Charles Affran and Others v. SG-SSB Civil Appeal No. J.4/71/2018).  It argued that “Unfair termination” as distinct from the common law concept of “wrongful dismissal”, is a creature of statute, currently the Labour Act, 2003 (Act 651).  The Appellant was therefore restricted to the Labour Act.  Moreover, they argued, the plaint before the Commission was for reinstatement and not for damages.

The Labour Act in Section 62 defines fair termination as:

A termination of a worker’s employment is fair if the contract of employment is terminated by the employer on any of the following grounds:

(a) that the worker is incompetent or lacks the qualification in relation to the work for which the employer is employed;

(b) the proven misconduct of the worker

(c) redundancy under section 65;

(d) due to legal restrictions imposed on the worker prohibiting the worker from performing the work for which the employer is employed.

The grounds of appeal would be considered under these headings:

1.  The National Labour Commission erred when it failed to reinstate the Complainant/Appellant.

The Appellant petitioned the Commission on 12th December, 2016.  In his petition set out below captioned UNFAIR TERMINATION OF APPOINTMENT AND APPEAL FOR REINSTATEMENT, the Appellant stated his case as follows:

Until 31st August, 2016. I was the Internal Auditor of the Minerals Commission.  My appointment was terminated under questionable circumstances.  I hereby petition your office for intervention and my reinstatement as Internal Auditor of the Minerals Commission.

The process towards this development began with the issuance of an invitation letter dated 25th July 2016 inviting me to appear before “A Special Committee of the Commission undertaking a fact-finding assignment in relation to the Secretariat’s accounts and accounting practices and assist in clarifying some issues relating to those matters.  You are to make yourself available between 10.00 am and 3.00 pm on Wednesday, 27 July, 2016 to be called by the Committee.

Though this invitation was received on the day of the meeting, I reported on the said date.  However, the meeting was postponed to the following week.  The said meeting took place on 2nd August, 2016.

Following the Committee’s meeting, I received a termination letter from the Board Chairman of the Commission purportedly based on findings of the Fact-Finding Committee.  As unconvincing as the termination letter was, with reference to my alleged offence, I appealed for reinstatement by a letter dated 7th September, 2016 here attached.  My appeal was turned down and my offence remains undefined except “your conduct does not meet the highest standard of efficiency and integrity in the Commission’s Regulations,” stated in the termination letter. I state that this particular section was captured in the Conditions of Staff purposely to cater for officers on probation. I requested for a copy of the report of the Fact-Finding Committee. This request was denied on the grounds that “documents of the Board are confidential”.

Sir, I have integrity to protect.  I am a Chartered Internal Auditor.  My 31 years of audit practice cannot be tainted.  I will fight by all appropriate means to restore and maintain my integrity as an Auditor of international repute….

I hereby appeal to you for re-instatement as a matter of urgency.

It was in response to this petition that the Commission went into the matter and made its findings.

From the Record of Appeal (ROA), the Commission on 4th January, 2017 sent a copy of the petition to the Respondent asking for its written response and requesting copies of any relevant documents. (See p. 16 of the ROA).

In a response dated 16th January, 2017, the Respondent caused its Solicitors to deliver its version of events.  It was their case that its Board established a Special Committee to evaluate its processes in relation to compliance with relevant accounting policies and regulations. Staff at the Finance and Administration Department, Audit Department and other relevant departments were invited before the Committee to assist in understanding their roles or involvement in the management of its accounts.  The Appellant was invited as head of the Internal Audit Unit to clarify issues relating to payment of allowances to staff without due regard for the Respondent’s policies and regulations.  It was the Respondent’s contention that he was found to have failed to perform his duties with diligence and responsibility and had failed to safeguard its financial resources.  It was their case that he had admitted his liability and this resulted in his termination.

In view of the complaint and response, the Commission invited the parties to submit their cases in the form of affidavits, exhibits and written addresses not later than 12th June, 2017 (see p. 26 of the ROA).  While the Appellant filed his documents and submissions, the Respondent on the other hand did not but chose to rely on its affidavit in opposition.

 The Commission set itself 2 issues for consideration:

1.  Whether or not the termination of the Appellant’s appointment by the Respondent was unfair?
2. Whether or not the Appellant was entitled to reinstatement?

The Commission findings were:

a. The Appellant was per the invitation to the Special Committee not charged with any specific offence of misconduct to answer.

b. The proceedings of the Special Committee were investigative proceedings.

c. He was not charged with any offence after the Special Committee hearing.

d. Respondent did not hear the Appellant before reaching the conclusion that his “conduct did not meet the highest standard of efficiency and integrity required in the Commission’s regulations” and terminating his appointment on that ground.

e. The procedure leading up to the termination of Appellant’s appointment was unfair.

f. The termination of Appellant’s appointment was unfair particularly under Section 63(4) of the Labour Act, 2003 (Act 651).

The Commission then made its orders now the subject matter of this Appeal.  The grounds of Appeal were:

1.  The National Labour Commission erred when it failed to reinstate the Complainant/Applicant.
2. The compensation the National Labour Commission awarded to the Complainant/Appellant has no legal basis.
3. The National Labour Commission erred when it failed to award substantial cost for the Complainant/Appellant.

The Court has a bounden duty to evaluate the entire record, oral and documentary in coming to a decision as to whether or not the judgment of the trial ccourt or adjudicating body should be maintained or interfered with. An appeal as indicated by Rule 8(1) of the Court of Appeal Rules CI 19, is by way of rehearing.  What this provision seeks to say is that the appellate court will deal with the matter as if it was hearing the matter at first instance.  See the cases of Mamudu Wangara v. Gyato Wangara (1982-83) GLR 639 @ 655 CA; Ansu-Agyei v. Fimah (1993-94) 1 GLR 299 at 305-306 SC and Praka v. Ketewa (1964) GLR 423 @ 426, SC 

In rehearing the matter, the appellate court is required to examine the whole record of appeal, taking into account all the evidence, oral and documentary, to satisfy itself that the judgment is amply supported by the evidence on record, upon the preponderance of the probabilities.  See Koglex Ltd (No. 2) v. Field (2000) SCGLR 175 @ 184; Tuakwa v. Bosom (2001-2002) SCGLR 61 @ 65 and Ackah v. Pergah Transport Ltd (2010) SCGLR 729.

In its duty to rehear the matter, an appellate court is in the same position of the trial court and can make up its own mind on the facts and also draw its own inferences from the facts as found.  Based on its evaluation of the evidence on record, the appellate court may interfere with the findings of facts made by the trial court, where good reasons exist for such interference. The authorities are however clear that findings of fact made by a trial Court can only be interfered with where such findings are not supported by the evidence on record; are perverse, or are based on wrong inferences drawn from established facts.  These principles have been established in cases such as Simmonds v. Trassaco Estate Development Company (2010-2012) 1 GLR 393 CA; at holding 7 in the headnotes; Bonney v. Bonney (1992-93) Part 2 GBR 779 @781 SC and Jass Company Ltd and Anor v. Appau and Anor (2009) SCGLR 265 @275.  In Amoah v. Lokko and Alfred Quartey (substituted) Gloria Quartey and Others (2011) 1 SCGLR 505, the court speaking through Aryeetey JSC whilst conceding that it was the exclusive duty of a trial judge to make primary findings of facts which will constitute the means by which the final outcome of the case would be arrived at, however held that, this notwithstanding, an appellate court was obliged to evaluate the evidence in coming to a decision whether the conclusions and findings of the trial court, which are being assailed, are supported by the evidence on record.  

In the Respondent’s affidavit in opposition filed with the Commission (p. 288 of the ROA) at paragraphs 10 to 15 it is stated with regards to the Appellant:

10. That in the course of its work, the Committee by a letter dated 25th July, 2016 invited the 1st Complainant as head of the Internal Audit Unit to clarify issues arising from information provided to the Special Committee including issues relating to payment of allowances to staff without due regard for the Commission’s policies and regulations, failure to perform his work with diligence and responsibility, failure to satisfactorily safeguard the financial resources of the Commission and failure to maintain integrity and independence in his work.

11. That in the meeting with the Committee, the 1st Complainant admitted to his non-compliance with the regulations in place for ensuring the proper management of the Commission’s funds and took responsibility for lapses in his Unit, such as allowing payments to staff, including himself, that were contrary to the Commission’s policies and regulations.  Attached hereto and marked as exhibit “MC1” is a copy of the Minutes of the Committee.

12. That the Committee determined that Mr. Apprakusu’s conduct as head of the Internal Audit Unit was unsatisfactory as it did not meet the highest standard of efficiency and integrity required by the Commission.

13. That in the view of the Committee the 1st Complainant had by his unsatisfactory conduct displayed incompetence and inability to discharge his responsibilities efficiently and with integrity, thus failing in his duty to exercise due care in his role as head of the Internal Audit Unit and enhance the productivity of the Commission.  Attached hereto and marked as exhibit “MC2” is a copy of the final report of the Committee dated 22nd August 2016.  Specific findings against the 1st Complainant are stated at page 15 of Exhibit “MC2”.

14. That on 31st August 2016, the Board of the Respondent terminated the appointment of Mr. Apprakusu in accordance with clauses 6 (a) and 66 of the Conditions of Service for Staff of the Commission.

15. That the appointment and termination of all staff of the Respondent is clearly stipulated in the Conditions of Service for Staff of the Respondent, which was duly complied with.  Attached hereto and marked as exhibit “MC3” is a copy of the Conditions of Service for Staff of the Minerals Commission.

At p. 3 of the ROA, is an invitation letter dated 25th July, 2016 to the Appellant to appear before the Special Committee.  It states:

A Special Committee of the Commission is undertaking a fact-finding assignment in relation to the Secretariat’s accounts and accounting practices and you are required to appear before the Committee to assist in clarifying some issues relating to these matters.

On 31st August, 2016 a letter terminating Appellant’s appointment was written.  The reason for the termination was that “Your conduct does not meet the highest standard of efficiency and integrity required in the Commission’s Regulations.”

The Commission found that the appointment of an employee may be terminated if the services of the individual prove unsatisfactory.  The appointment could also be terminated if the conduct of the employee does not meet the highest standard of efficiency and integrity required in the Commission’s regulations.  

The Commission also found that Clause 28 of the Conditions of Service provided that no disciplinary action shall be taken against any employee until an opportunity is given to him to be heard within a reasonable time.   However, the evidence before the Commission indicated that the Appellant was neither charged with any offence nor given an opportunity to be heard in his defense before the Respondent proceeded to terminate his appointment. Where an employee is alleged to have engaged in acts of misconduct, he/she must be afforded a hearing as required by the audi alteram partem rule which simply means “no man should be condemned unheard”.  A hearing may not necessarily mean that an employee should appear before a committee.  A query could be issued and a response elicited.  That would satisfy the requirements for the right to be heard. (See Aryee v. State Construction Corporation (1984-86) 1 GLR 424).

Although the Respondent avers that the Appellant’s termination was fair, there is no evidence before the court to show that he was either charged with any offence or was he given any query to respond to.  He was merely invited to assist the Special Committee in its fact-finding mission.  After responding to their inquiries, his appointment was subsequently terminated.

We agree with the National Labour Commission’s findings found at pp 306-307 of the ROA which state:

a. The Appellant was per the invitation to the Special Committee not charged with any specific offence of misconduct to answer.

b. The proceedings of the Special Committee were investigative proceedings.

c. He was not charged with any offence after the Special Committee hearing.

d. Respondent did not hear the Appellant before reaching the conclusion that his “conduct did not meet the highest standard of efficiency and integrity required in the Commission’s regulations” and terminating his appointment on that ground.

e. The procedure leading up to the termination of Appellant’s appointment was unfair.

f. The termination of Appellant’s appointment was unfair particularly under Section 63(4) of the Labour Act, 2003 (Act 651).

The Respondent failed to prove that the reason for the Appellant’s termination was fair.  A fair termination would be one made on proven misconduct. (see sections 62 and 63 of Act 651). It must be noted that the right to terminate employment does not depend on the whims of the employer.  If the employer fails to prove that the reason for terminating was fair or that it was made in accordance with a fair procedure, it would attract sanctions. (See Kobi and Others v. Ghana Manganese Company Ltd (2007-2008)2 SCGLR 771). Not having proven misconduct, the Commission was right in holding that the Appellant’s termination was unfair.   

Consequently, the Commission, referring to the case of Ghana Cocoa Marketing Board v. Agbettoh and Others (1984-86) GLR 122 declared that it was impracticable to re-instate the Appellant and made an award of 12 months salary exclusive of tax. It also made an award of 3 months salary in lieu of notice if not already paid. The Appellant deems the Commission to have erred in not reinstating him.

It is provided for in Section 64 (2) of the Labour Act, 2003 (Act 651) as follows:

2  If on investigation of the complaint the Commission finds that the termination of the employment is unfair, it may,

(a) Order the employer to re-instate the worker from the date of the termination of the employment;

(b) Order the employer to re-employ the worker, in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or 

(c) Order the employer to pay compensation to the worker.

Out of the three options provided by statute, the Commission chose option (c).  A contract of employment is not necessarily a contract till retirement.  That is, though it may be for an indefinite period, it does not mean life employment. Even if an employee’s appointment is wrongfully terminated, that does not give the aggrieved party the right to be paid salary till his retirement age. (See Ashun v. Accra Brewery Ltd (2009) SCGLR 81).  The Commission however, did not give reasons why it felt it impractical to reinstate the Appellant.  From the evidence on record, the Appellant’s appointment was terminated on 31st August 2016.  Through no fault of his own, there was a delay in the determination of his suit and it was not only until 29th January, 2020 that the Commission handed down its decision.  In its decision found at pp. 300-308 of the ROA the Commission stated in its 3rd and 4th paragraphs at p. 300 -301 thus:

Complainant being aggrieved with the termination, appealed to the Chairman of the Respondent Commission for re-instatement per his letter dated 7th September, 2016.  His appeal was refused.  Complainant made a further appeal to the Chief Executive Officer (CEO) of the Respondent Commission on 25th October, 2016.  Once again, his appeal was refused.

After having exhausted the internal grievance procedures without success, Complainant filed a complaint of unfair termination with the Commission on 12th December, 2016.  The parties after being heard by the Commission were on 19th July, 2017 ordered to file their written addresses and affidavits to facilitate summary settlement of the matter.  The Complainant complied with the Commission’s directive and filed a written address …. The Respondent was written to on 7th September, 2017 which he failed to do.  After a letter of reminder, the Respondent filed an affidavit in opposition on the 6th day of September, 2018.  A careful perusal of the case docket however reveals that there is no trace of any other written submission filed on behalf of the Respondent in this case.  However, on 15th March, 2019 both parties agreed to rely on their processes which had been filed for the Commission to summarily settle the case as provided under Regulation 33 of the National Labour Commission Regulations, 2006 (LI 1822).

The decision was handed down a period of about 4 years after the termination.  It would be impractical to order his reinstatement after such a long effluxion of time.

Where an employer commits a breach of the contract of employment with his employees, he is liable to pay damages and these damages are not limited to the period of notice.  In other words, damages beyond the period of notice should be ordered.  See Ghana Cocoa Marketing Board v. Agbettor and Others (1984-86) 1 GLR 122 and Nartey Tokoli v. VALCO (1987-88) GLR 532.  In view of the circumstances of this case, the Court shall review the damages awarded from a payment of twelve (12) to a payment of twenty-four (24) months basic salary exclusive of tax and other statutory deductions (such as SSNIT).  The Appellant’s argument that he should receive salary as a Director as he would have attained that position had it not been the termination, is untenable as this is only speculative. The amount awarded will be the current salary he would have been entitled to had he remained at the position of Head of Audit. See Ashun v. Accra Brewery Ltd (2009) SCGLR 81 where the court held that in the absence of any contrary statutory or contractual provision, the measure of damages for wrongful termination of employment under the common law of Ghana was compensation based on the employee’s current salary and other conditions of service for a reasonable period within which the aggrieved party was expected to find alternative employment.

The Appellant has complained that the costs do not reflect the circumstances of the case.  He wishes the Court to take judicial notice of engaging lawyers and other costs necessary in litigation.  Costs are at the discretion of the court. It is provided for in Order 74 of the High Court Civil Procedure Rules, 2004 (CI 47) thus:

(3) Without prejudice to the powers and discretion of the Court, an award of cost shall ordinarily be designed to

(a) compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made and 

(b) provide reasonable remuneration for the lawyer of that party in respect of work done by the lawyer.

(4) In assessing the amount of costs to be awarded to any party, the Court may have regard to 

(a) the amount of expenses, including travel expenses, reasonably incurred by that party or that party's lawyer or both in relation to the proceedings;

(b) the amount of court fees paid by that party or that party's lawyer in relation to the proceedings;

(c) the length and complexity of the proceedings; 

(d) the conduct of the parties and their lawyers during the proceedings: and

(e) any previous order as to costs made in the proceedings. 

(5) When the Court adjudges or orders any costs to be paid, the amount of the costs shall, if practicable, be summarily determined by the Court at the time of making the judgment or order, and shall be stated in the order.

What were the circumstances of the case which would have necessitated the award of costs higher than what the Commission handed down? As stated elsewhere in this judgment, the complaint was filed with the Commission on 12 December, 2016.  The Commission gave its decision on 29th January, 2020.  It took the Respondent some time to file their documents  and this was only after they had been issued with a reminder to do so.  The Appellant had filed his processes on 12th June, 2017.  After the reminder had been issued to the Respondent on 7th September, 2017, they responded on 6th September, 2018.  It took them a whole year to comply with the Commission’s directives.  In Gatco v. Pharmadex (Ghana) Ltd (1999-2000) 2 GLR 262, the court referred to the guiding principles on the award of costs listed in the case of Erskine v. Erskine (1984-86) 1 GLR 249 @ 254:

(1) The fact that a party has unduly delayed the trial by causing unnecessary adjournments: Guardian Assurance Co. Ltd v. Khayat Trading Store (1972) 2 GLR 48 CA

(2) Costs should normally bear a relationship to the trial and its incidents and not to the measure of damages awarded.  Since costs are in the discretion of the court and the law requires that such discretion should be exercised reasonably, it is wrong for a court to award costs on the basis of a so-called ten per cent of the damages awarded; Guardian Assurance Co. Ltd v. Khayat Trading Store (supra);

(3) The fact that the point which forms the main basis of the judgment or decision was raised not by counsel but by the court: Asamoah v. Koufu (1958) 3 WALR 315;

(4) Costs must neither be excessive nor ridiculously low but must be reasonable having regard to the circumstances of the case, e.g. the fact that the issues were simple and the trial took no considerable time and energy in its preparation and disposal; Bank of Ghana v. Nyarko (1973) 2 GLR 265, CA and Sasraku v. David (1959) GLR 7, CA

(5)  A party can, in the discretion of the court exercised judicially, that is to say by giving sufficient and good reasons, be deprived of his costs in exceptional cases, otherwise a successful party is always entitled to costs: London Welsh Estates Ltd v. Philip (1931) 100 LJKB 449 for instance if the court is satisfied that the conduct of the party has involved the defeated party unnecessarily in the expense of litigation;

(6) Insolvency or impecuniosity of a defeated plaintiff is not a sufficient ground upon which a court can deprive a successful defendant of his costs, nor is the insolvency or impecuniosity of a defeated defendant a good ground for depriving a successful plaintiff of his costs: Amalgamated Press Ltd v. Independent Press Ltd (1960) GLR 113; and 

(7) Where each party is only partially successful, e.g. where a plaintiff is successful on his claim and the defendant is also successful on his counterclaim, costs are apportioned proportionately in terms of the issues and incidents in each action or where appropriate each party bears his own costs: Gariba v. Ibrahimah (1951) 13 WACA 171

The court also may base its award on the industry in the preparation and conduct of the case.  In view of the above factors and in the circumstances of the case, the Court deems the Costs of GH¢1,000.00 awarded by the Commission as being woefully inadequate and hereby substitutes it with a more realistic amount of GH¢10,000.00 and awards same accordingly.

 CONCLUSION

 The appeal succeeds in part.  

1.  The Respondent shall make payment of twenty-four (24) months basic salary exclusive of tax and other statutory deductions such as SSNIT contributions as damages going beyond the period of notice for the unfair termination of appointment.  This salary should be at the current salary levels of the Head of Audit.
2. The Respondent shall make payment of three (3) months basic salary in lieu of notice of termination (if not already paid)
3. The Respondent shall pay costs of GH¢10,000.00 to the Appellant.

SGD

JENNIFER A. DODOO (MRS)

(JUSTICE OF APPEAL)

I agree 

SGD

SENYO DZAMEFE

(JUSTICE OF APPEAL)

I  also agree

SGD

P. BRIGHT MENSAH

(JUSTICE OF APPEAL)

COUNSEL

Archie Martin Danso Jnr for Complainant/Appellant

Joseph Dzakpasu for Respondent/Respondent