ARKHURST V. GHANA MUSEUM AND MONUMENTS BOARD

ABBAN J.

The plaintiff in this action claims general damages for wrongful dismissal and the recovery of certain benefits to which he is entitled under the pension scheme established by the defendants. The writ of summons reads as follows:

“Recovery of liquidated amounts of benefits under Staff Pension Scheme Policy No. A/2/97466/7/8 and Policy No. G/97466/8 under Assurance Society all totalling N¢1,303.82 and general damages for wrongful dismissal of the plaintiff by the defendants.”

The plaintiff in his evidence averred that by a letter dated 26 June 1957, the defendants employed him as a museum assistant with effect from 1 July 1957. By virtue of this appointment the plaintiff joined the staff pension scheme established by the defendants. He said as an employee of the defendants, he came to know which objects are classified as relics and that relics have been defined in the Ghana Museum and Monuments Board Ordinance, 1957 (No. 20 of 1957). According to the plaintiff while in the defendants’ employment, he exported wood carvings, wooden dolls and adinkra stamps, but he denied that these were relics as defined in section 2 of the Ordinance No. 20 of 1957.

That definition reads:

“ ‘relic’ means- (a) any fossil of any kind; (b) any ancient drawing, engraving or painting on stone or petroglyph of archaeological, ethnographical or historic interest; (c) any ancient implement, article or ornament of archaeological, ethnographical or historic interest; and (d) any archaeological or ethnographical contents of any ancient monument or ancient working.”

The plaintiff averred further that before the defendants terminated his appointment he was interdicted for having exported African antiques and for absenting himself from duty and drawing a salary for that period of absence. These allegations were gone into by Mr. Asiedu Akrofi as an inquiry officer appointed by the defendants and the plaintiff was completely exonerated. The plaintiff said the police were also called in to investigate the alleged exportation of the African antiques and again nothing was found against him. But thereafter, without any cause, he received from the defendants a letter dated 30 December 1966, terminating his appointment by giving him one month’s salary in lieu of notice. He stated that the defendants have also unjustifiably withheld the payment of his pension benefits under the staff pension scheme. Hence this action.

The plaintiff’s witness, Mr. Asiedu Akrofi, said his inquiry did not relate to the alleged exportation of relics or African antiques by the plaintiff; and so he never made any findings in that regard. Mr. Akrofi further stated that his terms of reference covered two matters, namely, (a) whether the plaintiff unreasonably absented himself from duty; and (b) knowing that he was absent he, nevertheless, without excuse, drew salaries for the period during which he was absent. He said he found in favour of the plaintiff and submitted his findings (exhibit F) to the defendants.

The plaintiff’s last witness was one Osrah, a police officer. This witness stated that in or about 1965, certain museum objects belonging to the defendants were missing from the museum and the Criminal Investigation Department was called in to investigate. He said the plaintiff was suspected as having removed those objects, and after he had conducted his investigation, he submitted his report to the Commissioner of Police (C.I.D.). But he later learnt that the docket had been closed. Mr. Osrah stated that in the course of his investigation the plaintiff made a statement revealing that he (the plaintiff) had been exporting certain objects from this country without licence. This statement was tendered by the defendants through Mr. Osrah as exhibit 1.

The defendants in their defence denied liability to the plaintiff’s claim. Mr. Nunoo, who has been the director of the defendants since 1961, testified on behalf of the defendants. He said the objects in the museum are normally donated to the defendants. But some of them are also collected and others excavated. He said when the objects are acquired, they are classified by the museum officers; and the plaintiff, while he was in the service of the defendants as a museum assistant grade 1, assisted in collecting and classifying museum pieces. According to Mr. Nunoo, the plaintiff was very experienced in this job and before he was even employed by the defendants, the plaintiff had been working as a museum assistant in the National Museum in the then University College of the Gold Coast. This witness said it is true that museum objects were un-lawfully removed from the defendants’ museum and the board (the defendants) referred the matter to the police for investigation. He averred that as a result of that investigation the defendants got to know that the plaintiff had been exporting museum pieces without licence, and without the consent and knowledge of the defendants. Consequently, the defendants at a meeting held on 9 September 1966, decided that the plaintiff should be dismissed on grounds of grave misconduct, because by privately engaging in the exportation of those objects of cultural and historic interest without licence and without the defendants’ knowledge and consent, the plaintiff had allowed his private interest to conflict with that of the board (the defendants); and in those circumstances his “continued employment in the Ghana Museum and Monuments would not be in the best interest of the Board.”

This decision was later approved by the National Liberation Council member responsible for education. Mr. Nunoo stated that following this decision, a letter dated 30 December 1966 (exhibit C), was written to the plaintiff terminating his appointment with effect from 1 February 1967. In the said letter (exhibit C) the defendants enclosed a cheque for one month’s salary in lieu of notice; and on 31 July 1967, the defendants resolved not to pay to the plaintiff any benefits under their pension scheme.

Mr. Nunoo averred that the objects exported by the plaintiff were never shown to the defendants. Mr. Nunoo himself did not see those objects so he could not say positively whether they were African antiques or relics. But he insisted that modern representations of objects which are relics could also be termed relics, and that the objects exported by the plaintiff could be classified as objects of cultural and historic interest.

Counsel for the plaintiff contended that since there is no proof that the objects exported by the plaintiff were relics within the meaning of Ordinance No. 20 of 1957, there was no justification in dismissing the plaintiff on grounds of misconduct and that the dismissal in the circumstances was wrongful. Counsel for the defendants, on the other hand, contended that the defendant had every right according to the letter of appointment (exhibit A) to terminate the plaintiff’s appointment, even in the absence of misconduct, after giving him one month’s notice; and since the plaintiff was given one month’s salary in lieu of notice which salary the plaintiff accepted without reservation, the defendants cannot be held to have unlawfully terminated the plaintiff’s services. Counsel submitted that once the plaintiff’s services have been lawfully terminated the motive or reasons which compelled the defendants to terminate the services are irrelevant when deciding whether the dismissal was wrongful or not.

Before considering the evidence, it is important that I should first examine the conditions of service offered by the defendants and accepted by the plaintiff. The plaintiff’s letter of appointment (exhibit A) stated, inter alia, the salary attached to the post, the general duties the plaintiff was expected to perform, the benefits he was entitled to and the circumstances under which his employment could be terminated. Paragraphs (3) to (6) of this letter are significant and I will quote the same in extenso:

(3) It is the intention of the Board to introduce a superannuation scheme for its staff similar to that adopted by the Ghana Library Board, as soon as arrangements can be completed. Such a scheme would be non-contributory.

(4) Subject to conditions prescribed for government officers in General Orders, free medical attention would be provided for yourself, wife and children.

(5) The Director would have power to terminate your appointment subject to the overriding approval of the Board, and in case of grave misconduct or a proved criminal offence you would be subject to instant dismissal. For purposes of disciplinary control, you would be subject to the instructions of the Director and any other administrative directives which might be issued by the Board from time to time.

(6) You would not be allowed to resign without obtaining permission of the Board and you would be required to give at least one month’s notice of your intention to retire before the date on which you wish to cease work. Were you to resign without receiving permission of the Board to do so or without giving the required notice you would normally be regarded as having severed your connection with the Board on the date on which you ceased to attend duty and would not be granted leave or any assistance towards the cost of your passage or transport expenses.”

On a close look at the contents of this letter of appointment, with particular reference to the fact that some of these conditions were made subject to the General Orders prescribed for government officers, I think the fair conclusion to be drawn is that the defendants offered and the plaintiff accepted employment on terms as secure as are in fact enjoyed by any civil servant. The plaintiff was certainly secure in his employment till he reached the retiring age. This does not, of course, mean to say that because an employee is offered a pensionable post, the employer thereby necessarily undertakes to retain the employee in the services of the employer long enough to enable the employee to earn a pension. But when considering the express condition relating to his dismissal, the fact that the employment is a permanent and pensionable one does assist in the construction to be put on that condition. On the true construction of the letter of appointment the plaintiff had a right to terminate his services after giving the defendants one month’s notice; but the defendants deprived themselves of the right to determine the plaintiff’s employment on one month’s notice. If it was intended that the defendants should have a similar right as given to the plaintiff, the letter of appointment would have provided what notice was to be given. The defendants cannot therefore, with due respect to learned counsel for the defendants, argue that they are entitled, even in absence of misconduct or proved criminal offence, to terminate the plaintiff’s employment after giving him one month’s notice or one month’s salary in lieu of notice. The defendants can lawfully terminate the plaintiff’s engagement only on grounds of grave misconduct or proved criminal offence and not by giving him one month’s notice or one month’s salary in lieu of notice.

It seems the defendants accept that the plaintiff was dismissed for misconduct and so the question which must be determined is whether the plaintiff was guilty of misconduct and whether the said misconduct was so grave as to justify the dismissal. There is no rule of law which defines the degree of misconduct which will justify dismissal from service. Thus the degree of misconduct which is inconsistent with the fulfillment of the express or implied conditions of service so as to justify dismissal is a question to be decided on the facts of each particular case. See the opinion of the Privy Council delivered by Lord James in Clouston and Co., Ltd. v. Corry [1906] A.C. 122 at p. 129, P.C.

After a careful examination of the evidence in the present case, I find that the plaintiff, while in the service of the defendants, indulged in the practice of buying and exporting to America objects which could be classified as objects of cultural and historical interest. In 1960, the plaintiff bought from one Anokye of Accra goldweights which he exported to a Mr. Newman who appeared to be very much interested in museum objects. This Mr. Newman in fact was working in a museum in America. In 1963, the plaintiff exported to America small beaten brass vessels. During the same period he exported adinkra patterns and wooden dolls. He also exported wood carvings to one Mr. W. W. Brill living in New York. He received payments for these exports, sometimes through Barclays Bank (D.C.O.), Ghana. All the objects were exported without export licence and without the consent or permission of the defendants.

It is true that the objects exported by the plaintiff had not been seen and had not been classified relics as such by the museum authorities. But I think they were, at least, of some cultural and historic interest. To the knowledge of the plaintiff, goldweights, brass bowls and adinkra patterns are some of the objects collected and preserved in the defendants’ museum as relics or as objects of cultural and historic interest. Mr. Nunoo, in re-examination, said, “The objects which the plaintiff sent out of the country consisted of wood carvings, brass bowls, called forowa, goldweights and adinkra stamps. I have types of these objects in the museum.”

Counsel for the plaintiff contended that since the plaintiff was not prosecuted under section 18 of Ordinance No. 20 of 1957, the plaintiff could not be held to have acted in any way inconsistent with his duty. I think there is a deceptive simplicity in looking at the matter from that point of view. I believe that the objects the plaintiff exported were objects of cultural and historic interest and the fact that he was not prosecuted under the Ordinance No. 20 of 1957 is neither here nor there. There is no doubt whatsoever that the plaintiff, unknown to the defendants, went about engaging people to make for him modern representations of the very objects which he was employed to assist in collecting for the defendants’ museum. He exported them without licence to persons working in a museum in America and made private financial gains in respect thereof. In other words, the plaintiff was vitally interested in dealing secretly in modern representations of the very museum objects he was employed to collect and classify for the defendants. I consider this to be a clear case of infidelity on the part of the plaintiff. Obviously he must have known the exact result of what he was doing and must have realised that what he was doing, if not legally wrong, was morally reprehensible. To my mind, the plaintiff’s conduct was such as to be clearly inconsistent with his duties to the defendants, and was highly prejudicial to the interests of the defendants. An employee owes a duty of fidelity to his employers. If therefore the employee does any act incompatible with due and faithful discharge of his duty to his employers the employers have every right to dispense with his services. See Pearce v. Foster (1886) 17 Q.B.D. 536, C.A.

The defendants in that case were general merchants. Among other things, they received orders to purchase various things in England for shipment to places abroad. They also issued foreign loans, and held very large amounts of foreign stocks represented by bonds payable to bearer. Some of these stocks were purchased by the defendants and kept on account of foreigners residing abroad. The defendants employed Pearce as a clerk for many years. Later the defendants entered into an agreement in writing whereby Pearce was to serve the defendants as their principal clerk for ten years from 1 January 1882 at a salary of £2,000. No provision was contained in the agreement as to dismissal. The duty of Pearce was to conduct the foreign correspondence of the defendants. He was not engaged in the financial or business aspect of the defendants’ enterprise. However before the expiration of the ten years, the defendants discovered that Pearce had for many years previously been engaged in speculative transactions in “differences” or time bargains upon the stock exchange to an enormous amount. These transactions had been entered into by Pearce without the knowledge of the defendants. When the defendants became aware of Pearce’s speculations, they dismissed him from their service. It was held by the Court of Appeal in England that the dismissal was justifiable. In reading his judgment, Lord Esher M.R. said at pp. 539-540:

“The rule of law is, that where a person has entered into the position of servant, if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him. The relation of master and servant implies necessarily that the servant shall be in a position to perform his duty duly and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him.... But if a servant is guilty of such a crime outside his service as to make it unsafe for a master to keep him in his employ, the servant may be dismissed by his master; and if the servant’s conduct is so grossly immoral that all reasonable men would say that he cannot be trusted, the master may dismiss him.”

A dictum of Lopes L.J. in the same case is also worthy of citation. He said at p. 542:

“If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.”

The plaintiff in the present case might have used his spare time or his off duty hours in collecting those modern representations or in going around to find persons to make for him those objects, which he exported. But I think it is irrelevant whether or not he used working hours for these transactions. The obligation on the servant to observe good faith towards his master exists even during the servant’s spare time, so long as the servant continues in the service of the master. In the case of Hivac Ltd. v. Park Royal Scientific Instruments Ltd. [1946] Ch. 169, C.A. the Court of Appeal according to the headnote held:

“that the extent of the duty of fidelity owed to an employer by an employee may vary according to the nature of the employment, but while the court would be reluctant to impose on workers restrictions which would hamper them in increasing their earnings in their spare time, in the present case the employees had knowingly, deliberately and secretly set themselves to do in their spare time something which would inflict great harm on their employers’ business; and that the plaintiff company were entitled to an interlocutory injunction to restrain the employment by the defendant company of the plaintiff company’s employees.”

In reading his judgment Lord Greene M.R. had this to say at p. 178:

“On the other hand, it would be deplorable if it were laid down that a workman could, consistently with his duty to his employer, knowingly, deliberately and secretly set himself to do in his spare time something which would inflict great harm on his employer’s business.”

The servant’s obligation to discharge his duty towards his employer with good faith and fidelity was also discussed in Robb v. Green [1895] 2 Q.B. 315, C.A. where A. L. Smith L.J. in the course of delivering his judgment observed at p. 320:

“I think that it is a necessary implication which must be engrafted on such a contract that the servant undertakes to serve his master with good faith and fidelity. That is what was said in the case of Lamb v. Evans ([1893] 1 Ch. 218), and I entirely agree with it.”

The dictum of A. L. Smith L.J. was referred to with approval by Maugham L.J.in a later case of Wessex Dairies Ltd v. Smith [1935] 2 K.B.80 at p.88, C.A. Furthermore, I am also of the opinion that the plaintiff’s conduct was what any person of ordinary honesty would look upon not only as incompatible with the faithful discharge of his duty to the defendants but also as dishonest conduct towards the defendants. His trustworthiness was therefore in doubt and it was unsafe for the defendants to keep him in their establishment. As I have already said, all these objects were sent out of this country without export licence and in contravention of the customs laws and regulations. The plaintiff always handed over the objects to friends, usually diplomats, travelling abroad who eventually delivered them in New York or who posted them in London or in Rome, on the plaintiff’s instructions, to New York. This clandestine system adopted by the plaintiff in exporting those objects gives the impression that the plaintiff knew perfectly well all along that he was engaged in an illegal transaction. Certainly, his conscience was not free. Exporting objects, and for that matter goods without export licence and without payment of export duty, or at any rate, without conforming to the customs laws and regulations, is highly prejudicial to the economy of the country. Such conduct in my view is most unpatriotic and offends against public policy; and this alone is sufficient ground for the immediate dismissal of the plaintiff.

In Graggs v. Neoteric Building Co. [1962] 1 G.L.R. 287 at p. 288 Ollennu J. (as he then was) said:

“In other words, the plaintiff requested the defendant-company to aid and abet him to evade financial restrictions which the stability of the Ghana nation might necessitate. In my opinion the plaintiff by that letter, exhibit 1, proved himself insincere and dishonest in the business of his employers, and towards the management of the company, not to mention the state generally. In those circumstances I think that the defendant-company were justified in terminating the employment of the plaintiff in order to frustrate his unpatriotic plans.”

I therefore hold that on the evidence the plaintiff committed a breach of his obligation to serve the defendants with good faith and fidelity which was an implied term in his contract of service and this is grave misconduct and the defendants were justified in dismissing him.

It must now be considered whether the plaintiff is entitled to his benefits under the superannuation scheme. It is to be observed that the employees participating in this scheme did not contribute towards the cost of providing the benefits under the scheme. All the required premiums were paid by the defendants alone for and on behalf of the employees and the Assurance Society had to pay any benefits under the insurance policies so taken, to the defendants. Consequently, the participating employees did not derive their rights under the scheme directly from the Assurance Society. A booklet dealing with how the scheme was operated, was tendered in evidence by the plaintiff as exhibit B. Section 8 of this booklet laid down the circumstances under which the benefits under the scheme were to be paid out to the participating members or employees. It appears, however, that where a member was dismissed on grounds of misconduct or fraud, the defendants had a right either to retain or to surrender “the benefits effected on the life” of that member. But the defendants “may waive the right to retain at their discretion.” The minutes of the meeting of the defendants held on 31 July 1967 (exhibit 5) clearly show that the defendants on the said 31 July 1967 decided not to pay any benefits under the scheme to the plaintiff. The following are the relevant portion of the said minute:

“All the members felt that since,

(i) the board’s staff pension scheme is non-contributing as obtains in the civil service;

(ii) Payment therefore of benefits to any officer who left the service of the museum prematurely depended upon whether or not such officer’s service and conduct had been satisfactory to warrant his benefiting from the scheme in circumstances similar to the civil service where an officer is allowed pension only if he left the service in pensionable circumstances;

(iii) Mr. Arkhurst’s whole career with the museum and the circumstances in which he left the board’s service could not be regarded as satisfactory, no payment of any superannuation award should be made to Mr. Arkhurst; They unanimously decided accordingly.”

Since the plaintiff was dismissed on grounds of misconduct, the defendants had an absolute discretion either to pay to the plaintiff his benefits under the said pension scheme or to withhold payment. In my opinion the defendants properly exercised their discretion when they decided on the said 31 July 1967, not to pay any superannuation award to the plaintiff. I will not therefore interfere with that decision.

In all the circumstances, the plaintiff’s claim must fail. The action is therefore dismissed and judgment is entered for the defendants with costs fixed at N¢55.00 inclusive.

COUNSEL

K. A. MENSAH FOR THE PLAINTIFF

BRUCE FOR AGBETTO FOR THE DEFENDANTS.