GEORGE AHELE V. GHANA WATER COMPANY LTD.

JUDGMENT

 ASUMAN-ADU, J.

The plaintiff, who was a Senior Revenue Assistant with the defendant company and had worked as an employee of the company for 19yrs, was summarily dismissed on 16th July, 1998. He as a result caused this Writ to be issued against the defendant on 9th May, 2005. By the Writ, the plaintiff’s claim against the defendant was as follows:

“1. A declaration that plaintiff’s dismissal on the 16th of July, 1998 was wrongful.

2. Payment of all unpaid salary arrears and all entitlements due plaintiff.

3. Interest on the computed salary and all entitlements from the 1st of June 1998 to date of Judgment

4. Re-instatement and or long service award commensurate with the 27yrs service in defendant’s employment.”

The plaintiff accompanied his Writ with a Statement of Claim in which he explained the cause of his dismissal and the rational for his action.

The defendant company disputed the claim of the plaintiff by filing a Statement of Defence on 19th July, 2005. It counterclaimed against the plaintiff for the following reliefs:

a. the refund of all sums of monies belonging to the defendant which plaintiff through his dubious actions have embezzled between 1997 and 1998 and which monies are still outstanding and

b. interest on the said sum form 1997 and 1998 to the time of payment.

Application for Direction was taken in the case on 9th November, 2005 and the issues settled for trial were as follows:

a) Whether or not the dismissal of the plaintiff on the 16th of July, 1998 was wrongful.

b) Whether or not the plaintiff is entitled to all entitlements and unpaid salaries due him after working for 27yrs in defendant’s company.

c) Whether or not plaintiff’s dismissal was based on Management’s acceptance of the recommendations of the Disciplinary Committee’s Report of defendant’s company.

d) Whether or not plaintiff’s dismissal was based on his conviction at the criminal court

e) Whether or not the plaintiff is entitled to his claim.

f) Whether or not the defendant is entitled to its counterclaim.

The plaintiff gave evidence but called no witness in support of his claim. In his evidence, the plaintiff told the court that he worked with the defendant for nineteen (19) years and his last position was Senior Revenue Assistant and Acting District Commercial Officer. He was working together with twenty-seven (27) other revenue officers. His responsibility was to collect cheques and cash from some of their customers. After that, he handed them over to the House Collection Cashier of the district who would enter them in a cash book, prepare the pay-in-slip and record the day’s collection in a foolscap notebook before paying them at the bank. At the end of the month, the plaintiff, as the District Commercial Officer, would collect information from the House Collection Cashier and the Customer Relations Officer to prepare his monthly report.

According to the plaintiff, in January 1998, four auditors from the Regional Audit Section headed by one George Atta-Poku went to the office of the plaintiff to conduct their first quarterly audit. He was then relieved of his post. He went on to tender in evidence his letter of dismissal as Exhibit “A”.

The plaintiff denied the allegation that he was responsible for the loss of the cash books. According to him, the cash books were kept in a drawer under lock and the key kept by the House Collection Cashier, Stella A. Hammond.

The plaintiff also denied that he misappropriated the amount of GH¢11.50 stated in paragraph 5 of Exhibit “A”. He told the court that before he was dismissed, he was interdicted. He tendered in evidence the letter of interdiction as Exhibit “B”.

The plaintiff went on to say that he was charged before the Circuit Tribunal in 1998 for allegedly embezzling ¢40.3million. After three years of trial, the plaintiff was convicted and sentenced to four and half years’ imprisonment. The Tribunal, however, reserved its reasons for the next adjourned date. For three years, the Tribunal did not give its reasons, so the plaintiff appealed to the High Court against the decision. On 23rd July, 2004 the High Court acquitted and discharged the plaintiff. He tendered in evidence the record of proceedings at the High Court as Exhibit “C”.

The plaintiff, thereafter, caused his counsel to write to the defendant company for the payment of his entitlement. He tendered in evidence the letter written by his counsel as Exhibit “D”. The defendant explained in a letter which was tendered in evidence as Exhibit “E” that, his dismissal was based on a disciplinary committee’s report and not on an audit report. It therefore denied his claim.

The plaintiff denied that he was invited before a committee. He also insists that his dismissal was as a result of his conviction at the Circuit Tribunal. He also denied the counterclaim of the defendant.

The plaintiff told the court under cross-examination that as a Senior Revenue Collector, he was governed by Ghana Water and Sewerage Corporation Bargaining Agreement of 1996. He, however, did not tender it in evidence.

Three persons gave evidence on behalf of the defendant. They were Eva Ankrah, Emmanuel Korsah and Gertrude Naa Manko Akwei.

According to Eva Ankrah, a Human Resource Manager in the Eastern Region of Ghana, in 1998, she was working at Accra-Tema Metropolitan Area Office near the 37 Military Hospital as an Assistant Administrative Officer. In that year, she was appointed to serve on a Committee of Enquiry as a member/secretary to investigate concealment of cash books involving twelve members of staff including George Ahele, the plaintiff herein. According to her, they met each of them and interviewed them in relation to the cash books that could not be traced. After the committee’s work, they submitted their report in which they had made some recommendations to Management. She tendered in evidence a copy of the report as Exhibit “2”. She insisted that the plaintiff appeared before the committee and she gave the days on which he appeared as 26th March, 1998, 1st April, 1998 and 15th April, 1998 on which he appeared before the committee on two different occasions.

The witness told the court under cross-examination that they invited the plaintiff through administrative channel. According to her, ten of the twelve people involved were at post with the plaintiff and one other being on interdiction. She explained that since they were on interdiction, they were not supposed to leave their station without permission from the then Area Director. So when they needed the said workers, they would inform the Area Administrative Officer who would invite the workers. On their first appearance, they were given subsequent dates to appear.

Emmanuel Korsah, the Industrial Relations Officer and the Acting Head of Training at the Ghana Water Company Limited told the court that he did not know the plaintiff personally. However, available records at the office show that the plaintiff was employed in December 1979 by the then Ghana Water and Sewerage Corporation as a Revenue Assistant Grade Three and he ceased to be an employee in July 1998. At the time of his dismissal, the plaintiff was working at the Accra North West District as a Senior Revenue Assistant.

The witness explained to court the circumstances that led to the dismissal of the plaintiff. According to him, the Regional Manager of the Accra-Tema Metropolitan Area received information of some misappropriation at the place, so he sent an audit team to go and investigate the books at the place. It then came out that some value books made up of receipt and cash books could not be traced. The auditors submitted their report and based upon that the matter was reported to the police. Also, a Committee of Enquiry was set up internally to investigate the concealment of the books. Whilst investigations were going on, the plaintiff was interdicted. Based upon the committee’s report, the plaintiff was dismissed. According to him, all the four members who sat on the committee are no longer with the company, except Eva Ankrah who was a member/secretary. The witness insists that the plaintiff appeared before the committee.

He went on to explain the disciplinary procedures in the defendant company. He said that if a case that may lead to the dismissal of a staff is brought before the attention of Management, a query is issued to the staff and he is given fifteen days to reply. Based on the response, a disciplinary committee is set up to investigate the matter. The Union is represented on the committee. After their work, they send a report to Management who would take a decision based on the recommendations. He went on to tender in evidence the letter of interdiction of the plaintiff as Exhibit “3”. The witness told the court that in the case of the plaintiff herein, the defendant company followed the laid down procedure. He was queried and he answered it. He tendered in evidence the Collective Bargaining Agreement as Exhibit “4”.

Mrs. Gertrude Naa Manko Akwei, a Revenue Assistant of the defendant company, told the court that in 1987/88, she worked at the Accra North-West District and that the plaintiff was her co-worker. She confirmed that around 1998, Management of the defendant company set up a Committee of Enquiry to investigate missing cash books and unaccounted amount. She told the court that she was invited to appear before the Committee. According to her, she was invited through her boss. The boss told her that he had had a telephone call that she was to appear before the Committee and she went.

She appeared before the Committee for the first time on 1st April, 1998 and the second one was on15th April, 1998. On that day she, the plaintiff, one Joana and one Ofori Atta appeared before the Committee. She was interviewed first, followed by Joana, then the plaintiff and the last one was the said Ofori Atta. Later, she, Joana and the plaintiff together met the Committee at the same time.

Having summarized the evidence of the parties and the witnesses for the defendant company, I will narrow down the issues before the court as follows:

a) Whether or not the dismissal of the plaintiff on the 16th July, 1998 was wrongful.

b) Whether or not plaintiff is entitled to his claim.

c) Whether or not the defendant is entitled to its counterclaim.

On the first issue, it is the duty of the plaintiff to prove to court that by his terms of employment or by the terms of existing statutory provision, his dismissal by the defendant company was wrongful.

The principle on this is provided in the case of Morgan and 2 Ors. v. Parkinson Howard Ltd. (1961) GLR 68 in which Ollenu J (as he then was) stated at page 70 as follows:

“In a claim for wrongful dismissal, it is essential that the plaintiff should prove the terms of his employment and then prove either that the determination is in contravention of the statutory provisions for the time being regulating employment. His claim cannot succeed if he fails to satisfy the court on these points.”

See also the case of Sarfo v. A. Lang (1978) GLR 147.

Going by this decision, for the plaintiff in the instant case to succeed, he has a duty to prove to court the terms of his employment and also demonstrate that his dismissal is in breach of the terms of his employment.

No evidence was led by the plaintiff to prove the terms of his employment. His testimony was that he worked with the defendant company for nineteen years. Then based upon an audit report, he was handed over to the police. He was convicted and sentenced to four and half years’ imprisonment. Also based on the audit report, he was dismissed by the defendant company. The plaintiff did not tender in evidence his letter of appointment and or the Collective Bargaining Agreement which would have helped the court to know about his terms of employment. He also never gave evidence on his terms of employment. The court was, therefore, in the dark as far as his terms of employment were concerned. He also did not give evidence to prove to court that his dismissal is in breach of any existing statutory provisions.

The statute which governs employment at all times material in the country is the Labour Act 2003 (Act 651). He never referred the court to any provision of the said Act to prove to the court that his dismissal had breached. It is even unfortunate that counsel for the plaintiff never referred to any such provision in his address. By the decision in Morgan v. Parkinson Howard Ltd. (supra), the failure to prove to court that plaintiff’s dismissal was in breach of the Collective Bargaining Agreement or any existing statutory provision, is fatal to plaintiff’s case. However, the defendant tendered in evidence the Collective Bargaining Agreement as Exhibit “4”. The court will, therefore, make reference to relevant portions of it in this judgment in order to determine whether or not the plaintiff’s dismissal was wrongful.

Article 5.9 of the Collective Bargaining Agreement (Exhibit) 4, deals with disciplinary action and procedures.

5.9(a) states that disciplinary action will be taken against a member of staff in respect of inefficiency or misconduct, example;

· Willful disregard of lawful instructions

· Neglect of duty

· Absenteeism

· Stealing

· Drunkenness which is proved by a medical officer or any offence which may be adjudged to bring the corporation into disrepute.

Exhibit “4” states summary dismissal as one of the punishment that may be imposed against a member of staff for any of the offences listed in Article 5.9(a) depending on the gravity of the offence.

Exhibit “4” goes on to state at Article 5.9(d) that whenever a disciplinary action should be instituted against an employee, he shall be charged and be called upon to answer in writing within a period not exceeding fifteen days. If the staff fails to reply by the date specified, it shall be assumed that he has no defence to the charges and the disciplinary authority shall proceed to award any punishment as he may think fit. If a reply is received, the disciplinary authority shall either investigate the charge(s) himself or delegate this responsibility to an officer of a higher rank than the employee involved for consideration of the disciplinary authority. If the disciplinary authority is satisfied that the charge(s) have been proved, he shall advise the employee in writing of the penalty imposed.

Article 5.9(e) provides that an employee who is charged by the corporation with an offence which if proved, may result in his removal, reduction in rank or dismissal, shall be invited to state in writing the grounds upon which he relies to exculpate himself. If the disciplinary authority is not satisfied with the grounds, he shall appoint a Disciplinary Committee on which the Union shall be represented for the investigation of the matter and shall take a decision on the matter using the findings of the Committee as a guide.

Article 5.9(f) also states that an employee against whom an official charge likely to lead to his dismissal is pending or who has been arrested and is placed in custody by the Police on a charge involving stealing corporation property or released on bail, may be interdicted from duty and given two-thirds (2/3) of his net salary. If the disciplinary proceedings result in the exoneration of the employee, then one-third (1/3) of the salary withheld from him shall be restored to him.

In the instant case, the evidence before the court as presented by the plaintiff says nothing about the Collective Bargaining Agreement. So as to whether or not his dismissal breaches the Collective Bargaining Agreement, it is not clear from his evidence. However, in the evidence presented by the defendant, it is observed that the dismissal did not breach the Collective Bargaining Agreement. The evidence shows that the plaintiff was queried. He responded to the query. Based upon the response, a Committee of Enquiry was set up to investigate the allegation of missing cash books. Meanwhile, at that time the defendant had handed over the plaintiff to the police. So based upon the Collective Bargaining Agreement, he was interdicted. From the evidence, the panel members of the Committee included a Union member. After the work of the Committee, a report was submitted to Management. Based on the recommendations of the Committee, the plaintiff was dismissed. This clearly shows that the defendant did not breach any of the provisions in the Collective Bargaining Agreement in dismissing the plaintiff.

In spite of this, the plaintiff insists that his dismissal was wrongful. This was because he was never made aware of a Committee of Enquiry and he never appeared before it. Also, his dismissal was due to his conviction at the Circuit Tribunal and because the conviction has been quashed, it follows that his dismissal was wrongful.

The plaintiff has denied ever appearing before the Disciplinary Committee. He claims he was never invited to appear before the Committee.

According to counsel for the plaintiff, DW2, who gave evidence for the defendant company failed woefully in his answers to questions relating to the specific procedure adopted in inviting plaintiff to the hearing of the Disciplinary Committee. So from the cross-examination of DW2, it has been established that plaintiff was never invited to the hearing of the Disciplinary Committee and that whatever was said in the report was cooked evidence. He therefore, submitted that the plaintiff was never given a hearing by the Disciplinary Committee that was set up to look into his alleged embezzlement of funds and missing cash books. According to him this is against the audi alteram parterm principle. In view of that, all portions of Exhibit “2” that affect the plaintiff should be discounted.

The question then is was the plaintiff actually given a hearing before the Committee of Enquiry?

The evidence before the court as given by the defendant shows that a Committee of Enquiry was set up by the Management of the defendant company on 18th March, 1998 to investigate alleged concealment of cash books involving the plaintiff and two others. The members of the Committee were as follows:

1. Colonel Nuworgah - Chairman

2. Mrs. A. Bosompim - Member

3. Mr. A. Adjei-Bota - Member

4. Mrs. Eva Ankrah - Member/Secretary

All the panel members, except Mrs. Eva Ankrah, are no longer working with the defendant company. Mrs. Eva Ankrah gave evidence as DW1 in this court and she confirmed that the plaintiff actually appeared before the Committee on four different occasions.

DW1 told the court under cross-examination that the plaintiff was invited through the Administrative channel. She went on to say that when given the opportunity, she would be able to produce documentary evidence on how the plaintiff was invited. On the next adjourned date when the witness came to court he could not produce the said evidence. She, however, explained that during the Committee’s sitting, all those invited were at post except the plaintiff and one other, who were on interdiction. She went on to explain that since they were on interdiction, they were not supposed to leave their station without permission from the Area Director. So all that they did was to inform the Area Administrative Officer of the staff they would want to meet and he would communicate it to the staff concerned. After the first appearance, the staff is informed of the next date to appear. She, therefore, insists that the plaintiff was invited and he appeared before the Committee and testified.

The evidence of DW1 was corroborated by Mrs. Gertrude Naa Manko Akwei who gave evidence as DW3. According to her, she was also invited to appear before the Committee together with the plaintiff and one other. She told the court that on her first appearance, her boss told her that there was a telephone call that she should appear before the Committee. So on 1st April, 1998 she appeared before the Committee. She also appeared on 15th April, 1998 for the second time and on the same day she, Joana Ameyaw and the plaintiff together met the panel at the same time. She even went ahead to give the sitting arrangement when they appeared before the committee together. She said she was in the middle, with Joana on her left-hand side and the plaintiff on her right-hand side. She, therefore, insists that the plaintiff appeared before the Committee.

From the evidence before the court, can it be said that the plaintiff never appeared before the Committee? Even though no documentary evidence on the attendance of the plaintiff at the Committee meeting was tendered in evidence, there is overwhelming evidence that he appeared before it. He has, however, decided to lie before this court that he was not aware of the existence of the Committee and he never appeared before it. What the plaintiff is saying is not true. He has rather come to court to tell lies.

According to counsel for the plaintiff, whatever is said about the plaintiff in Exhibit “2” was cooked. This is not possible. If the plaintiff had not appeared before the Committee, they would not have been able to produce detailed evidence on what he himself said at the Committee. DW1 was a panel member and DW3 appeared before the Committee. Their evidence that the plaintiff appeared before the Committee was very consistent and could not be contradicted in any way by the plaintiff. It is, therefore, very unfortunate for counsel for the plaintiff to make a submission that the evidence on the plaintiff in Exhibit “2” was cooked.

It is worth noting that the first paragraph of Exhibit “A”, the letter of dismissal of plaintiff made mention of the Committee. I will want to refer to that in this judgment.

“The Committee appointed to investigate the alleged concealment of cash books involving you has completed its work and submitted its report to Management.”

This clearly shows that the letter made reference to a Committee which was set up to investigate the alleged concealment of cash books which involved the plaintiff. So that if he never appeared before the committee and was not even aware of its existence which he wants the court to believe, what did he do when he received such a letter?

The collective Bargaining Agreement (Exhibit “4”), provides that an employee may appeal against a decision by a disciplinary authority made in relation to him within four weeks after the receipt of the decision of the Disciplinary Authority. Since the plaintiff claims he was not aware of the existence of the Disciplinary Committee and that he was never invited to appear before it, when he received the dismissal letter and it made reference to the Committee, he should have immediately appealed against it.

When a question on this was put to him during cross-examination, he claims he took the letter to the police. Why the police? The police case was pending and he was dismissed. So if he has been dismissed based on a report of a Committee that he claims he was not aware of then he should have appealed in accordance with the Collective Bargaining Agreement and not to send the letter to the Police. For not doing that, I find it difficult to accept his position that he was not aware of the existence of the Committee and that, he never appeared before it.

In civil trials the principle is that he who asserts must prove his case and if he fails to prove it he must lose. See the case of Duagbor v. Akyea-Djamson (1984-86) 1 GLR 697. In the instant case the plaintiff is alleging that he was not aware of the existence of the Committee and that he never appeared before it. However, the evidence on that assertion as given by the plaintiff and the defendant shows that the evidence of the defendant is more consistent than that of the plaintiff and that the plaintiff has just decided to come to court to tell lies which puts his credibility into question. I, therefore, hold the view that the plaintiff was aware of the existence of the Committee and that he testified before the Committee as stated in Exhibit “2”.

From the evidence given by the plaintiff, his dismissal was based on an audit report which led to his conviction at the Circuit Tribunal. As has already been stated elsewhere in this judgment, the first paragraph of the dismissal letter clearly shows that the plaintiff was dismissed based on the Disciplinary Committee’s report.

The second paragraph also confirms that, in the sense that it states that

“After a thorough steady of the report, however, Management have come to the strong conclusion that you were responsible for the loss of the cash books and as a result you intended to defraud the corporation.”

What report was studied thoroughly? Obviously, it was the Disciplinary Committee’s report and no other report. This is inferred from paragraph 1 of the said letter. The dismissal letter is, therefore, not based on an audit report which was not even tendered in evidence for this court to know what that report says.

It is also observed that the plaintiff was dismissed on 16th July, 1998. The evidence before the court also shows that he was convicted and sentenced on 13th June, 2001. This clearly shows that his dismissal preceded his conviction and sentence at the Circuit Tribunal so it cannot be the basis on which he was dismissed by the defendant company which he wants the court to believe. Since his dismissal was not based on the conviction at the Circuit Tribunal, it follows that the quashing of the plaintiff’s conviction and sentence cannot be the basis upon which his dismissal could be declared wrongful.

The next question that I will want to pose in order to determine whether or not plaintiff’s dismissal was wrongful is whether from the contents of Exhibit 2, he could be held liable for the concealment of the cash books?

There is sufficient evidence from the Committee’s Report that plaintiff admitted that he should be held responsible for some of the problems that went on at the office. I will want to refer to those aspects of the report in this judgment. This is found at page 30 of the report which states:

“Q: In the report, most of the cash received were not entered in the cash book, where do you think the ¢2million is and whom would you put the blame?

A: Administratively, I should be held responsible because she (Joana) should have counter signed and she did not do so.”

The evidence of the plaintiff at the Committee given on 26th March, 1998 shows that he was supposed to have given some cash totaling about ¢2million (GH¢200.00) to the said Joana but there was no record of it so he accepted responsibility and made part payment of the amount.

The plaintiff has denied that he ever acted as the Customer Relations Officer (CRO). Meanwhile, in Exhibit “2”, the plaintiff admitted that he at times acted as the Customer Relations Officer. When he appeared before the Committee the second time on 1st April, 1998 as shown at page 40 of the report, this was the dialogue that took place between him and the Committee members:

“Q: Do you occasionally relieve the CRO in his/her duties?

A: Yes, I relieve the CRO occasionally. Maybe for a day or two

Q: What sort of duties do you perform for the CRO when he/she is not in?

A: When he/she is indisposed for a day, I take over the key and when she comes back, I hand it over. When I am not in, she leaves it with Mrs. Ameyaw.

Q: Does your extra duty involve handling cash?

A: I handle cash when the House Collection Cashier is not around.”

The plaintiff went on to state in the report that he at times made entries in the cash book on behalf of the House Collection Cashier. The plaintiff goes on to state that they had two cupboards at the office where they kept new cash books and completed cash books. When a cash book was completed the CRO would ask the staff concerned to send the completed one to the cupboard and take a new one. There was, therefore, no supervision. They were, therefore, not keeping track of the completed and new cash books. The cupboard keeping the completed ones had a key but the one in which they kept the new ones did not have a key. When he acted as CRO, he did nothing about it. He, therefore, said that all those who had been in charge of the cupboard including him, should be held responsible for the missing cash books.

From Exhibit “2”, the Committee made a finding of fact that the plaintiff and Mrs. Ameyaw who had interest in the cash books, were responsible for the missing cash books.

From the evidence before the court, the plaintiff has proved to court that he is not a credible witness. This is because, even though he was aware of the existing of the Disciplinary Committee and did appear before it, he told the court that he is not aware of its existence and never appeared before it. Also from the report, he at times acted as the Customer Relations Officer and House Collection Officer but he denied that he acted in those positions in his evidence in court. Also whilst he stated in Exhibit “2” that the cupboard in which the new cash books were kept had no key and that every staff at the office had access to it the plaintiff testified in court that the cash books were kept in a drawer under lock and the key kept by the House Collection Officer.

Another area that put the credibility of the plaintiff into question is on the issue of query. On 15th December, 2008 the plaintiff categorically denied that he was queried on the cash books during cross examination. I will refer to the said aspect of the cross-examination in this judgment:

“Q: Are you seriously telling the court that in July 1998 when you were dismissed on alleged concealment of cash books involving you, you had not been queried on this topic?

A: I had not been queried on this issue

Q: I am suggesting to you that in accordance with rules governing your employment, Management had sent you a query as to the cash books?

A: That is not true

Q: And that you had sent a reply to the query?

A: I have not been queried.

Q: It was after this query that a Committee of Enquiry was set up to probe you and others?

A: That is not true.”

From the answers given by the plaintiff in the said cross-examination, he was never queried. However, on 13th February, 2009 when we met for further cross-examination, he admitted being queried. I will want to refer to this aspect of the cross-examination in this judgment:

“Q: You remember that your Management queried you on missing cash books. Is that correct?

A: Yes

Q: You did reply to the query?

A: Yes.”

The said cross-examination clearly shows that he was queried. The defendant went ahead to tender in evidence the reply he submitted in answer to the query through him which confirms that he was actually. Meanwhile, he had earlier on denied being queried. So, the question is, why did he earlier on deny that he was queried?

The contradiction in the evidence of the plaintiff as stated in Exhibit “2” and his evidence given in court as compared to the inconsistency in his evidence on the query given in court, clearly shows that he is not a credible witness who can be believed by this court. See the case of Dotwaah v. Afriyie (1965) GLR 252.

The question then is whether from the evidence before the court, the dismissal of the plaintiff by the defendant company was wrongful?

The plaintiff has a duty to prove to court that the grounds given for his dismissal is in breach of the terms of his employment as provided in Exhibit 4. This is because in civil cases, the general rule is that the party who in his pleadings or Writ of Summons raises issues essential to the success of his case assumes the onus of proof. See the case of Faibi v. State Hotels Corporation (1968) GLR 471. See also the case of Bank of West Africa Ltd v. Ackun (1963) 1 GLR 176. See also Section 13(1) and 14 of the Evidence Act, 1975 (NRCD 323).

In the celebrated case of Majolagbe v. Larbi (1959) GLR 190, it was held that when a party makes an averment which is capable of proof in a positive way and the averment is denied, that averment cannot be sufficiently proved by just mounting the witness-box and reciting the averment on oath without adducing some corroborative evidence.

From the totality of the evidence before the court, the plaintiff never explained to court that the grounds given by the defendants company for being dismissed from his employment was in breach of his terms of employment. According to him, he was dismissed because of his conviction at the Circuit Tribunal. Meanwhile, he was dismissed in 1998 and was convicted in 2001. This clearly shows that there was no link between the two.

The plaintiff also states that he was not aware of the existence of the Disciplinary Committee and also he never appeared before it. However, as has been stated elsewhere in this judgment that has been found to be false. This is because the evidence before the court shows that he appeared and testified before the Committee.

The defendant has, however, proved to court that it followed the procedures laid down in the Collective Bargaining Agreement in dismissing the plaintiff. It is, therefore, clear that the defendant exercised its right under Article 5.9 of the Collective Bargaining Agreement.

The Disciplinary Committee Report tendered in evidence as Exhibit “4” clearly confirmed the grounds given for plaintiff’s dismissal. The evidence before the court also shows that the plaintiff could not contradict the witnesses who testified for the defendant in any way on the grounds given for the dismissal. The only point he made was that they could not produce any documentary evidence of how the plaintiff was invited to the Committee. The witnesses for the defendant, however, explained that the plaintiff was invited through the administrative channel. This was because he was not supposed to leave his station without permission. This is clearly stated in his letter of interdiction. So when he was needed, that was done through his Area Administrative Officer. He was, therefore, invited to the Committee and he attended and testified.

It was held in the case of Morgan and 2 Ors. v. Parkinson Howard Ltd (supra) that conduct inconsistent with the plaintiff’s due and faithful discharge of his duties to his employers is a complete justification for his dismissal without notice. From the evidence before the court in the instant case, the court observes that the plaintiff’s conduct was inconsistent with the due and faithful discharge of his duties to the defendant company. The court as a result accepts the reason given by the defendant for dismissing the plaintiff. It is, therefore, the view of this court that the dismissal of the plaintiff was done in accordance with Article 5.9 of the Collective Bargaining Agreement. I, as a result, hold that plaintiff’s dismissal was not wrongful because the defendant had cause to dismiss him from the defendant company.

The next issue to consider is whether or not the plaintiff is entitled to his claim. The plaintiff will only be entitled to his claim only where it is established that his dismissal was wrongful. It has been established in this judgment by this court that the defendant had cause to dismiss the plaintiff from its employment. It follows that he is not entitled to any of his reliefs endorsed on his Writ of Summons and I so hold.

The last issue to consider is whether or not the defendant is entitled to its counterclaim.

The defendant counterclaimed from the plaintiff as follows:

“a. the refund of all sums of monies belonging to the defendant which plaintiff through his dubious actions has embezzled between 1997 and 1998 and which monies are still outstanding.

b. interest on the said sum from 1997 and 1998 to the time of payment.”

I agree with counsel for the defendant that the Disciplinary Committee made a finding of fact that the plaintiff, Mr. George Ahele, misappropriated an amount of ¢2,136,950.00 (GH¢214.70) and has refunded through Darkuman Police an amount of ¢2,025,450.00 (GH¢202.55) leaving a balance of ¢115,500.00 (GH¢11.55). The Committee recommended that the plaintiff should pay the balance to the defendant company.

In his letter of dismissal, the plaintiff was asked to pay the amount. However, no evidence was led on it to show whether or not the plaintiff has paid that amount and that the court should order him to pay. The defendant therefore, did not testify on its counterclaim which shows that it has abandoned that claim so this court cannot order the plaintiff to pay that amount to the plaintiff. The counterclaim of the defendant is as a result dismissed.

In conclusion, the action of the plaintiff and the counterclaim of the defendant are dismissed and judgment entered for the defendant against the plaintiff on his claim.

No order as to costs.

COUNSEL

MR. D. K. SOKPOR FOR THE PLAINTIFF

MR. ANTHONY KWAKYE FOR THE DEFENDANT.