YEKSON EMMANUEL KUGBLENU V. GHANA INSTITUTE OF MANAGEMENT AND PUBLIC ADMINISTRATION

JUDGMENT

OWUSU, J.

Plaintiff herein on the 3rd of June 2014 issued out a Writ of Summons against the Defendant for the following reliefs: 

a. A declaration that his dismissal on June 10, 2013 was unconstitutional and wrongful.

b. GH₵200,000.00 in damages. 

c. Cost. 

SUMMARY OF CASE 

THE PLAINTIFF’S CASE 

The Plaintiff sets out his case by an accompanying Statement of Claim to the Writ of Summons, his Reply to the Statement of Defence filed on the 11th of May 2015 and his Evidence in Chief contained in his Witness Statement filed on the 19th of October 2015.

In his written submissions to the Court, counsel for the Defendant stated that Plaintiff had filed a Reply out of time without leave of the Court. Contrary to this assertion, this Court differently constituted on the 4th of May, 2015 granted leave to the Plaintiff to file his Reply out of time.  

Plaintiff’s case is that he was a post graduate student of the Defendant Institution. On the 6th of December, 2012 he was invited to a meeting by the Registrar of the Defendant. The meeting did not take place but rather he was handed a letter titled ‘Student Malpractice’ in which he was accused of falsifying a deposit slip he had presented to the Defendant and was asked to respond to same in writing. 

According to the Plaintiff after receiving the letter accusing him of falsification, he first reported the matter to the Police and subsequently submitted his response to the Defendant as requested in which he denied the allegations and insisted that payment was made on his behalf by an NGO called AGDII TERTIARY EDUCATION OPPORTUNITY. Plaintiff claimed that in the course of events and in spite of a Police Report suggesting that the suspect was to be prosecuted and a Police team actually coming to the Defendant to plead with them, they went ahead to dismiss him from the Institution by a letter dated June 10, 2013. 

Thereafter, the actual person who falsified the deposit slip admitted to the offence, was convicted and sentenced and Plaintiff proceeded to write to the Rector of the Defendant Institution requesting them to grant him a hearing considering the turnout of events but the Defendant failed to heed to his plea. Plaintiff maintained that he did not falsify the deposit slip and his dismissal was wrongful.

THE DEFENDANT’S CASE 

The Defendant sets out its case in its amended Statement of Defence and Evidence in Chief contained in the Witness Statement of Philip Duku Osei filed on the 2nd of December, 2015 and the Witness Statement of Julius Atikpui filed on the 6th of January, 2016. 

The general rule is that hearsay evidence is inadmissible although there are certain exceptions. By virtue of ORDER 38 RULE 3 E (5) of the HIGH COURT (CIVIL PROCEDURE) (AMENDMENT) RULES, 2014 C.I 87, the Evidence in Chief of witness Philip Duku Osei was put in as hearsay evidence. The declarant was not in court to be tested on his evidence by cross examination. No weight whatsoever will be placed on this evidence.

Essentially, the Defendant’s case is that the dismissal of the Plaintiff from their Institution is justified as the processing fee was personally and knowingly paid in by the Plaintiff and not AGDII TERTIARY EDUCATION OPPORTUNITY and it was the Plaintiff who presented the falsified deposit slip to them. According to them it set up a competent committee to go into Plaintiff’s case and all laid down procedures were duly followed leading to the dismissal of the Plaintiff.  

The case of the Defendant further was that its statutes provide that where a student is dissatisfied by a decision of the Student Affairs Committee he may appeal the decision to the Rector but the Plaintiff failed to exhaust this grievance procedure before rushing to Court.  

Defendant insisted that Plaintiff was given a fair hearing and is thus not entitled to his claims.

ISSUES SET DOWN FOR TRIAL 

At the close of pleadings, the following issues were set down for trial: 

a. Whether or not the Plaintiff did falsify the deposit slip and defrauded the Defendant to the tune of GH₵4,000.00. 

b. Whether or not the Defendant’s Academic Board gave the Plaintiff a hearing prior to his dismissal. 

c. Whether or not the Defendant in dismissing the Plaintiff infringed on Article 23 of the 1992 Constitution of Ghana. 

d. Whether or not the payment of the subject fees should have mitigated the ultimate punishment of dismissal. 

e. Whether or not the Plaintiff is entitled to his reliefs. 

f. Any other issues as the court may deem fit.  

ANALYSIS OF THE ISSUES 

I shall now proceed to address the issues 

∙ Whether or not the Plaintiff did falsify the deposit slip and defrauded the Defendant to the tune of GH₵4,000.00. 

It is not in dispute that EXHIBIT 1, the cash deposit slip for an amount of Four Thousand and Fifty Ghana Cedis (GH₵4,050.00) was falsified. 

It is also not in dispute that EXHIBIT 1A, the cash deposit slip from the Rajkumar branch of Unibank indicates the Plaintiff as the payee.  

Yet again it is not in dispute that it was the Plaintiff who presented the falsified deposit slip at the Defendant’s cash office as evidence of part payment of his school fees. The issue however is whether or not the Plaintiff defrauded the Defendant to the tune of Four Thousand Ghana Cedis (GH₵4,000.00) by falsifying EXHIBIT 1A. 

The Plaintiff asserted that he never paid cash or made any deposit of Fifty Ghana Cedis (GH₵50.00) into the Defendant’s account through Unibank and also did not attempt to falsify the said deposit slip. Plaintiff relies on EXHIBIT E1 and EXHIBIT G in support of his stance that he never defrauded the Defendant.  

Indeed, Plaintiff reported the incident to the Police after he received EXHIBIT A, the letter from the Defendant accusing him of the offence. One Issifu Razak admitted that he paid the lesser amount of Fifty Ghana Cedis (GH₵50.00) into the Defendant’s account with Unibank Rajkumar Branch in Techiman on behalf of the Plaintiff and then altered the pay in slip to read Four Thousand and Fifty Ghana Cedis (GH₵4,050.00). On the basis of this, the said Issifu Razak was convicted and sentenced.  

This conviction notwithstanding however, the Defendant insisted that since the deposit slip had the Plaintiff’s name as the payee and since the Plaintiff personally submitted the falsified deposit slip at the Defendant’s cash office and was issued with a receipt to that effect, he should be held responsible. 

Firstly, nowhere in EXHIBIT 3 is it stated categorically that it was the Plaintiff who falsified the slip to defraud the Defendant. 

Secondly, although EXHIBIT 1 indicates the Plaintiff as the payee and EXHIBIT 1A was presented by the Plaintiff, in the light of evidence adduced, the Court cannot say as a fact that the Plaintiff did falsify the deposit slip and defrauded the Defendant to the tune of Four Thousand Ghana Cedis (GH₵4,000.00). 

I shall next propose to discuss issues (b) and (c) together. 

∙ Whether or not the Defendant’s Academic Board gave the Plaintiff a hearing prior to his dismissal. 

∙ Whether or not the Defendant in dismissing the Plaintiff infringed on Article 23 of the 1992 Constitution of Ghana.

The need to give a person a hearing and the opportunity to defend himself is so fundamental to our law that a breach of it has never been taken lightly by the Courts. Indeed, it is a fundamental requirement that before a party is condemned that party must first be given an opportunity to defend himself. I refer to the case of ABOAGYE v. GHANA COMMERCIAL BANK [2001- 2002] SCGLR 797 @ pages 804-807. 

The Plaintiff was dismissed by the Defendant Institution. A dismissal connotes a wrongdoing or misconduct and a person accused of any such misconduct has to be taken through any available internal disciplinary processes which must include the observance of the rules of natural justice to establish the guilt or otherwise of the person before action is taken. Indeed, Defendant’s decisions are without recourse to any investigation by the Police but a right to procedural fairness exists when an authority’s decision is significant and has an important impact on the individual.  

What are the laid down internal disciplinary processes or procedures of the Defendant Institution? Is it a condition precedent that Plaintiff should have been taken through a formal hearing before he was dismissed? Every institution is expected to have disciplinary procedures in place and to follow them. Disciplinary procedures set out the stages and processes to follow in relation to alleged misconduct or malfeasance. The Defendant failed to furnish the Court with their disciplinary procedures. The onus was on them to exhibit same to guide the Court but surprisingly they failed to do so. I refer to the case of ENEKWA v. KWAME NKRUMAH UNIVERSITY OF SCIENCE and TECHNOLOGY (KNUST) [2009] SCGLR @ 242. 

Under the common law, the rules of natural justice ought to be observed and Plaintiff given an opportunity to be heard. Defendant was enjoined by basic principles of administrative fairness and reasonableness to have observed the rules of natural justice especially when Plaintiff denied the allegation and made attempts to apprehend the real culprit. Fairness required that he be given a platform to state his side of the case, be given an opportunity to call witnesses if any and be given an opportunity to cross examine witnesses if any. The Plaintiff denies he was accorded a hearing. 

At pages 2 and 3 of the record of proceedings for the 22nd day of February, 2016 the following exchanges took place between counsel for the Plaintiff and the Defendant’s witness: 

“Q. Now the explanation that was required of the student is EXHIBIT B, so the Plaintiff was not given the opportunity to appear before the committee at all.

A. My lord I indicated earlier that Plaintiff was invited and was communicating with the secretary to the committee that he was on his way but because the committee could not wait endless for Plaintiff the committee rose and decided to request a written explanation from Plaintiff, where he gave a detailed explanation of his side of the story” 

At page 4 of the record dated 17th February and page 2 of that dated 22nd February the Defendant’s witness under cross-examination stated that Plaintiff was invited for a hearing but he failed to avail himself as such the Defendant went ahead to rely on EXHIBIT B, the Plaintiff’s response to take an informed decision. He had this to say: 

“Q. A student committee was tasked to investigate the matter. How many sittings did they have and how many times did the Plaintiff appear before them? 

A. My lord, the affairs committee met thrice. The Plaintiff was invited but did not show up. 

Q. What mode was used to invite the Plaintiff to appear before the committee? 

A. A written request for him to appear before the committee which was followed up with telephone calls. 

Q. Can you be kind enough to give us a copy of the written invitation?

A. My lord, I cannot readily give you the written notice.” 

“Q. Have you per chance read the GIMPA statutes? 

A. I have read the statutes and I am aware of the internal Disciplinary Committee Procedures as much as the students are concerned. 

Q. You heard that in respect of student malpractices, a provision is made for hearing of the accused person? 

A. My lord yes but when a student is invited and he is unable to appear but presented a comprehensive response detailing all that happened, the committee may not necessarily meet the student again. The committee may rely on that document to take an informed decision.” 

It is trite that when a party is given an opportunity to lead evidence in support of his stand or in defence of allegations against him but deliberately declines to avail himself of that opportunity, the Court and in this case the quasi-judicial Committee would be entitled to proceed with the trial to conclusion and make findings on the basis of the evidence adduced at the trial. This was the holding in IN RE WEST COAST DYEING INDUSTRY LTD, ADAMS V. TANDOH [1984-86] 2 GLR at page 56. I also refer to the case of REPUBLIC v. HIGH COURT (FAST TRACK DIVISION) ACCRA; EXPARTE STATE HOUSING CO LTD (NO 2) (KORANTEN- AMOAKO INTERESTED PARTY [2009] SCGLR at page 185. 

Once the Defendant succeeds in establishing that Plaintiff was invited for a hearing but failed to avail himself then Defendant had every right to proceed with the investigation to conclusion. Remarkably however, there is no evidence on record to support the assertion that Plaintiff was invited for a hearing and chose not to appear before the Disciplinary Committee. 

The law requires that each party who makes an assertion or assertions which are denied by his opponent, must lead convincing evidence to prove the assertions therein. By the provisions of Section 12(1) and (2) of the EVIDENCE ACT 1975 NRCD 323, the standard required is proof by the preponderance of the probabilities. Indeed, from the earlier authorities such as the often cited case of MAJOLAGBE v. LARBI AND OTHERS (supra)and ZABRAMA v. SEGBEDZI [1991] 2 GLR @ 221 to recent authorities such as YAA KWESI v. ARHIN DAVIES [2007-2008] SCGLR @ 580, SARKODIE v. FKA CO. LTD [2009] 1 SCGLR @ 65 (holding 1), ABBEY v. ANTWI [2010] SCGLR 17 @ 19(holding 2) and ACKAH v. PERGAH TRANSPORT [2010] SCGLR 728 @ 730 this standard of proof was applied. 

In expounding this principle of proof in civil suits, Kpegah JA (as he then was) had this to say in ZABRAMA v. SEGBEDZI (supra) @ page 246 as follows: 

“…The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.”

Despite the fact that the Defendant, as far as discharging this legal burden of proof was unsuccessful, they contended that in any case, the non-appearance of the Plaintiff for an oral hearing does not derogate from the audi alteram partem principle of natural justice. To them, the determination of the matter based on EXHIBIT B, the detailed written response by the Plaintiff suffices.  

In his written address to the Court, counsel for the Defendant referred to Halsbury’s Laws of England 4th Edition at Para. 76 page 93 and submitted that natural justice does not invariably require that the parties be entitled to an oral hearing. That it would sometimes be fair to determine an issue on the basis of written representations but the parties concerned must still be apprised of and given a proper opportunity of replying to any allegations against them and this the Plaintiff did as per EXHIBIT B.  

To this end counsel again referred to the case of AWUKU SAO v. GHANA SUPPLY CO LTD [2009] SCGLR @ 710 and the case of REPUBLIC v. GHANA RAILWAY CORPORATION EXPARTE APPIAH and ANO THER [1981] GLR @ 753. 

The Court however takes the view that whether or not written responses would suffice and a formal hearing not required depends on the peculiar circumstances of each case. In the light of EXHIBITS B and E, the Defendant did not act fairly and reasonably. 

In the case of KNIGHT INDIAN HEAD SCHOOL DIVISION [1990] 138 SCR CANLII @ 653 the court held that authorities that carry out acts of an administrative and specific nature do have a duty to act fairly. 

In the Ghanaian case of AWUNI v. WEST AFRICAN EXAMINATIONS COUNCIL [2003- 2004] SCGLR @ 471 the phrase “to act fairly and reasonably” was explained by Kpegah JSC at page 489 thus: 

“The phrase ‘to act fairly and reasonably’ in my opinion necessarily imports a duty to observe the common law maxim of audi alteram partem and other principles of natural justice which is very much part of our jurisprudence and are implicit in the constitutional provisions in article 23…”

The said ARTICLE 23 of the 1992 CONSTITUTION OF GHANA provides: 

“Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law…” 

Again ARTICLE 296 OF THE CONSTITUTION provides: 

“Where in this Constitution or any other law discretionary power is vested in any person or authority 

a) That discretionary power shall be deemed to imply a duty to be fair and candid;

b) The exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and 

c) Where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power”. 

As already established, the Defendant did not act fairly by dismissing the Plaintiff from the Institution. The Defendant’s witness at page 5 of the proceedings for 22nd February admitted that the Plaintiff together with the Police team were in his office to plead with him yet still they went ahead to dismiss the Plaintiff as per EXHIBIT F. It is in the light of this that the court finds as a fact that the Plaintiff was not given a hearing prior to his dismissal and the Defendant in dismissing the Plaintiff infringed on Article 23 of the 1992 Constitution of Ghana. 

I shall now consider 

∙ Whether or not the payment of the subject fees should have mitigated the ultimate punishment of dismissal. 

∙ Whether or not the Plaintiff is entitled to his reliefs. 

∙ Any other issues as the court may deem fit. 

The Defendant claims that their statute provides that where a student is dissatisfied by a decision of the Student Affairs Committee (SAC) he may appeal the decision to the Rector of the Defendant however the Plaintiff failed to lodge any such appeal as such has not exhausted the grievance procedure available to him under the Defendant’s statute. 

What constitutes a proper appeal? The Defendant has failed to provide what form such an appeal must take. Although EXHIBIT H is headed ‘LETTER OF PETITION’, it is copied to the Rector alone and the tone of EXHIBIT H is an appeal to the Rector ‘to open opportunity into this matter for a full hearing of my case and readdress it accordingly’. The office of the Defendant admits it received EXHIBIT H1 and EXHIBIT H1was copied to others apart from the Rector but this does not take away the fact that same was received by the Rector who failed to act on it. I find as a fact that Plaintiff lodged an appeal. 

On the basis of the above findings of fact, the payment of the subject fees should have mitigated the ultimate punishment of dismissal. The Plaintiff is entitled to his claims. 

The Court hereby declares that the dismissal of the Plaintiff on the 10th of June, 2013 was unconstitutional and wrongful.

The usual remedy for wrongful dismissal is damages or compensation. The Plaintiff is entitled to substantial or compensatory damages. 

In assessing damages for the wrongful dismissal of the Plaintiff, the court must have regard to all the circumstances of the case. The Plaintiff’s desire to acquire higher learning has been cut short by the Defendant who did not act fairly and reasonably, not to mention his tarnished reputation. 

∙ The Court hereby awards the Plaintiff general damages or compensation in the sum of One Hundred and Twenty Thousand Ghana Cedis (GH₵120,000.00) which the Court deems fair and proper. 

∙ The Court awards costs of One Thousand Ghana Cedis (GH₵1,000.00) in favour of the Plaintiff. 

(SGD) 

JUSTICE LAURENDA OWUSU 

JUSTICE OF THE HIGH COURT

COUNSEL

JERRY DEI FOR VICTORIA BARTH FOR THE DEFENDANT