SETH APPIAH SARFO V. THE CHIEF FIRE OFFICER GHANA NATIONAL FIRE SERVICE ACCRA

KUSI-APPIAH, J.A.:

This is an appeal from the decision of the High Court, Cape Coast, delivered on 9th March 2005. It is mainly an action for wrongful dismissal of the plaintiff by the defendant. The defendant denied that their dismissal of the plaintiff was wrongful and they have sought to justify it. What then are the facts of this case?

The plaintiff, Appiah Sarfo, joined the Ghana National Fire Service in 1992 as a recruit fireman. He was first stationed at Cape Coast. On 19th August 2002, he was transferred to Kintampo in the Brong Ahafo Region. The transfer took effect from 16th September 2002. According to the plaintiff, he reported at Kintampo only to realize that no accommodation had been provided for him in accordance with the Fire Service Regulations. He claimed that after sleeping on the bare floor at the Kintampo Fire Service Station for three days, he sought permission from the District Fire Officer to come back to Cape Coast were he reported to the Regional Fire Officer. He then initiated some moves including petitions and personal contacts to his employers (i.e. the chief fire officer) and Commission on Human Rights and Administrative Justice (CHRAJ) to provide him with a service transfer vehicle or the decision to transfer him rescinded. On 15th April 2003, the plaintiff was dismissed from the Fire Service for vacating his post.

Dissatisfied with his dismissal, the plaintiff took action against the defendant in the Cape Coast High Court, claiming:—

" (a) A declaration that his dismissal from the Ghana National Fire Service was wrongful.

(b) An order for his re-instatement into the Ghana National Fire Service together with his promotion and all-entitlements OR IN THE ALTERNATIVE

(c) Damages for wrongful dismissal."

I will refer to the parties in the manner they appeared at the court below.

The defendant resisted the claim. After hearing evidence from the parties, the trial Judge held that there was no merit in the plaintiffs case and therefore dismissed his claim.

It is against this judgment that the plaintiff has appealed to this court. Three grounds of appeal were filed and argued. They are as follows:—

(1) The Learned trial Judge erred in law by holding that the plaintiff did not deserve to be given hearing as stipulated in the Legislative Instrument L.I. 461 which governs the rules of service of the Ghana National Fire Service.

(2) The judgment is against the weight of evidence led at the trial.

(3) The judgment and findings made have no basis in law.

Arguing grounds (1) and (3) together Learned Counsel for the plaintiff submitted that it was wrong for the High Court to have concluded that the dismissal of the plaintiff from the employment of the defendant was in accordance with the Fire Service Regulations, 1965, L.I. 461. He contended that the dismissal of the plaintiff from the employment of Ghana National Fire Service by the defendant is unlawful and wrongful because the defendant had not observed the laid down disciplinary procedures. He maintained that the combined effect of Regulations 19(b) and 20 of (Fire Services Regulations 1965) L.I. 461, the erring employee must be given a fair hearing before a Disciplinary Tribunal before a penalty is imposed on him when found guilty of the charge. The plaintiff contended further that his dismissal without a hearing before the Disciplinary Tribunal as spelt out in Regulation 20 of L.I. 461 is not only unlawful, but also sinned against the natural justice rule. He therefore concluded that the learned Judge erred in law when he held that the plaintiff did not deserve to be given a hearing which is contrary to Regulations 20 of L.I. 461 which governs the Ghana National Fire Service.

The defendants stated otherwise. They contended that the plaintiff's transfer to Kintampo took effect from 16th September 2002. However, he reported for duty on 22nd January 2003 and left on 25th January 2003. In effect, the plaintiff had been absent from duty without permission for (128) one hundred and twenty-eight days before he reported at his new post at Kintampo. According to the defendants, from 26th January to 13th April 2003, that is when he left his new station till his dismissal, the plaintiff was again absent from duty without permission for (78) seventy-eight days. The result is that the plaintiff has been absent from duty for a total of two hundred and six (206) days. The defendants argued that by vacating his post for two hundred and six days, the plaintiff has removed himself from the ambit of Regulations 19(b) and 20 of L.I. 461 of 1965. And such long absence from duty, may give the employer the right to terminate the employee's appointment summarily. They cited the case of OWUSU AFRIYIE V. STATE HOTELS CORPORATION [1965] 1 GLR 255 to support their stand. The defendants maintained that the plaintiff refused to comply with the orders of the defendants after repeated warnings including the 25th November 2002 warning and the ten-day mandatory notice dated 4th December 2002 to the plaintiff to return to his duty post within ten days (from the date of the letter) or have his position declared vacant.

The main issue in this appeal is whether or not the dismissal of the plaintiff was wrongful. In other words, whether or not the Plaintiff was dismissed in accordance with the Statutory Regulations of the Fire Service. And here one may ask, what are the statutory regulations? The Statutory Regulations is the Fire Services Regulations 1965 (L.I. 461) and by virtue of Regulations 27 of L.I. 461, the provisions of Civil Service (Interim) Regulations, 1960 L.I. 47 becomes applicable to matters in issue here members of Fire Service). This means by virtue of Regulations 27 of L.I. 461, members of Fire Service are also subject to the L.I. 47 of 1960. Therefore the Plaintiff contract of employment is also regulated by L.I. 47.

The relevant part of regulation 19 of Fire Service Regulation, 1965 L.I. 461, which is applicable to the plaintiff, reads as follows.

"19. A member of the service commits an offence under these Regulations if he or she:—

(a) Without lawful excuse, disobeys or is insubordinate to a senior officer in the execution of his duties.

(b) Is careless or negligent in the execution of his/her duties or is absent from or late for duty or any parade or drill ... "

(Emphasis mine).

Regulation 20 of the same L.I. 461 provides:—

"A member of the Service charged with an offence under Regulation 19 shall be liable to appear before a disciplinary tribunal consisting of one or more Officers not below the rank of Assistant Divisional officer appointed by the Chief Fire Officer. (Emphasis mine).

And regulation 25 of L.I. 461 provides the punishment that may be melted out against a member of the Service against whom the charge has been proved.

The cumulative effect of regulations 19, 20 and 25 of L.I. 461 is that an offending employee of the defendant is to be given a fair hearing before a Disciplinary Tribunal/Committee to face his accuser(s). And that before an employee of the defendant could be dismissed for any offence, proper proceedings should have been conducted by convening a disciplinary committee to prove the guilt of the employee.

However, regulation 27 of L.I. 461 provides:—

"Except where otherwise in these Regulations provided the provisions of the Civil Service (Interim) Regulations, 1960 (L.I. 47) shall apply to the Service as they apply to the Civil Service"

In this case, the Plaintiff who until his dismissal was an Assistant Station Officer may fall under Regulations 56 (1) of L.I. 47 which states:—

"Without prejudice to the taking of disciplinary proceedings in respect of any absence from duty Judgments of the Superior Courts 11792 Copyright © DataCenta Ltd. without leave or reasonable cause, where a Civil Servant who is the holder of a post in Categories B, C, or D(1) is absent from duty without leave or reasonable cause for a period exceeding 10 days, and the Civil Servant cannot be traced within a period of 20 days of commencement of such absent, or, if traced, no reply to a charge of absence from duty without leave is received from him within 10 days after the dispatch of the charge to him, then the disciplinary authority empowered to dismiss him may summarily dismiss him"

The essential elements of Regulations 56(1) of L.I. 47 are as follows:

1. If you are absent for a period not exceeding 10 days without leave or reasonable cause, you will be taken to have absented yourself from duty for those number of days.

2. If you have absented yourself for a period of 20 days, without leave or a reasonable cause you will be deemed to have vacated your post.

3. If however, you appear before the 20 days expires then a charge may be leveled against you to answer.

4. And if you fail to reply within 10 days after the dispatch of the charge to you, then you will be dismissed summarily.

In all these, the import is that if one absents himself for more than 20 days, he will be deemed to have vacated his post, thus giving the Disciplinary Authority the power to dismiss him summarily. And here the Disciplinary Authority has been provided by Regulations 46 (4) of L.I. 47 as the Head of Department who is the Chief Fire Officer. I must say that the Disciplinary Authority cannot dismiss summarily if one has been absent from duty less than 10 days.

In this case, the evidence on record (Exhibit K) shows that the Plaintiff was dismissed summarily for vacating his post by the Chief Fire Officer. The plaintiff takes issue with the defendant on his vacation of post. His counsel, Mr. Amua-Sekyi submitted that the plaintiff was not given the transfer vehicle as stated in the Fire Service Regulation to convey his family and personal effects to Kintampo. Neither was he provided with accommodation. The result is that the plaintiff was perpetually traveling to Accra to see the Chief Fire Officer about it. The defendants contended otherwise.

The first question here is.: what does the evidence say? From 16th September 2002 to 21st January 2003 (i.e. 128 days) the plaintiff did not report for duty at his new station. He reported for duty on 22nd January 2003 and left on 25 January, 2003 without permission. (See The Brong Ahafo Regional Fire Officer's letter dated 29th January 2003 to the Chief Fire Officer, exhibit 4 which states inter alia that the Plaintiff reported for duty on 22nd January 2003 and left the Station on 25th January 2003 without the District Fire Officer's permission). The question to be answered is what was the plaintiff doing between 16th September 2002 and 21st January 2003? and between 26th January 2003 to 14th April 2003 when he was dismissed? He claimed to have petitioned the Chief Fire Officer, the Commission on Human Rights and Administrative Justice (CHRAJ) and others for redress on his transfer.

I must say that the mere fact that he had petitioned the Minister for Interior, the chief fire officer and CHRAJ on his transfer and was awaiting a reply was no justification for absenting himself from duty. Besides, on 4th December 2002 the defendant wrote to the plaintiff by way of Administrative Instruction giving him ten-day mandatory notice to return to his duty post or his position will be declared vacant. There is further evidence that prior to the 4th December 2002 letter, the defendant had warned the plaintiff in a letter dated 25th November 2002 to report at his new station to avoid [sic]been sanctioned.

In any case, the issue that no accommodation was provided the plaintiff at his new station is taken care by Regulation 17 of L.I. 461, which provides:

"Every member of the service of or below the rank of station officer shall be provided with rent —free living quarters without furniture or shall be entitled to a housing allowance as specified in the sixth schedule hereto where no quarters are available or provided" (Emphasis mine).

Similarly where the Fire Service is unable to provide service vehicle to a transfer officer(s), they make an alternative provision for transportation to affected officer(s).

In an action for wrongful dismissal; the onus lies on the employee to prove that the dismissal was wrong and the defendant would then prove that it was justified. See CAMPELL J. in OVERSEAS BREWERIES V. AGAH [1968] GLR. 192.

In this appeal, it is not in dispute that the plaintiff absented himself from duty for two hundred and six days without lawful excuse when he was transferred from Cape Coast to Kintampo. What it means is that the plaintiff by absenting himself from work for that long had repudiated the contract of his employment and the defendants by writing to him on 15th April 2003 had accepted the repudiation. By his continuous absence from duty without permission, the plaintiff has relinquished his right thereto and ceases to be an employee of the defendant and he is no longer entitled to any further remuneration. In such situation, the employer is at liberty to appoint someone else to fill the vacancy.

Quite apart, there was clear evidence that the plaintiff refused to comply with the lawful orders of the defendant to report for duty at his new station, Kintampo after repeated warnings. The plaintiff therefore stood condemned for instant dismissal for vacating his post for 206 days.

In the case of LEVER BROTHERS V. ANNAN (consolidated) [1989-90] 2 GLR 385,389 C.A. holding 1, it was held inter alias that:

"Where an employee has in fact been guilty of misconduct so grave that it justifies instant dismissal, the employer can rely on that misconduct in defence of any action for wrongful dismissal, even if at the date of the dismissal the misconduct was not known to him"

Flowing from this case, the position of the law is that an employer is entitled to dismiss summarily an employee he considers guilty of serious misconduct such as absent from duty for a long time (i.e. 206 days) without permission, disobedience of a lawful order, insubordination etc and in such situation the employer is not obliged to set up an investigative process to give the employee a fair hearing. See PRESBYTERIAN HOSPITAL AGOGO V. BOATENG [1984-86] 2 GLR 381 C.A.

In this case, the plaintiff having disabled himself from being heard by vacating his post (when he absented himself from duty for that long without lawful excuse), he cannot complain of breach of natural justice i.e. that he was not given a fair hearing. The question is; if you are not at post or you make yourself unavailable, how can you be given hearing?

To me, vacation of post or absenting himself from duty for that long (206 days) without permission is inconsistent with the due discharge of the duty that the plaintiff owes to his employers and that alone is a ground for terminating his employment or even dismissing him summarily. An[sic] in pursuance to this, the Chief Fire Officer who is the Disciplinary Authority and Head of Ghana National Fire Service is empowered by Regulations 56(1) of L.I. 47 to dismiss the Plaintiff summarily, which he did on 15th April 2003.

Consequently, I hold that the trial High Court Judge was right when he held that the plaintiff by his conduct disabled himself from being heard as he vacated his post.

The last ground of appeal is that the judgment is against the weight of evidence. In the case of BOATENG and OTHERS V. BOATENG [1987-88] 2 GLR 81 C.A. this court stated rightly the legal position that "where the appellant contended that a judgment was against the weight of evidence, he assumed the burden of showing from the evidence that that was so". In the instant case I am of the opinion that the Defendant has failed to discharge that burden and as in the BOATENG case, the evidence on record as well as submission of counsel show that the findings of fact made by the trial court were amply supported by the evidence on record. There is therefore no basis for interfering with the trial court finding. I find no merit whatsoever in this ground of appeal and the same is dismissed.

For these reasons, I find that the dismissal of the plaintiff by the defendant was not wrongful.

I would therefore dismiss the appeal as totally devoid of any merit.

OWUSU J.A.

I have had the benefit of reading the judgment of my brothers and I also agree that the appeal be dismissed for reasons assigned by them.

However I have an observation to make. From the record of proceedings, one cannot tell the category of officers into which the appellant, an Assistant fire officer fell.

My brothers referred to Regulations 56[1] and 57 of the Civil SERVICE [INTERIM] REGULATIONS of 1960, L.I. 47 which deal with absence from duty by civil Servants. Regulation 56 [1] deals with absence from duty by holders of posts in categories B, C, or D.[1]. Under this regulation, where a holder of post in any of those categories absents himself from duty without leave or reasonable cause for a period exceeding 10 days and cannot be traced within a period of 20 days of commencement of such absence, or if traced, no reply to a charge of absence from duty without leave is received from him within 10 days after the dispatch of the charge to him, then the disciplinary authority empowered to dismiss him may summarily dismiss him.

Under Regulation 57 "where the holder of a category D[2] post is absent from duty without leave or reasonable cause for more than ten consecutive working days, he may be regarded as having resigned from his employment without notice and steps may be taken to fill his post.

If his where abouts are known, he must be informed in writing that his absence from duty has been thus regarded."

In his letter of Dismissal, he was told that having failed to comply with letter No. PS 3/12/6907/29 dated 4th December, 2002 giving him ten [10] days within which to report for duty, effective the 4th December i.e. the date of the letter, he was deemed to have vacated his post.

The same letter also informed him that if he failed to report for duty as ordered his position will be declared vacant. This is more in accord with Regulation 57.

Before this letter of 4th December, by a letter dated 25th November, 2002, he had been warned to report at his new station or he would be sanctioned.

Counsel for the Appellant did not advert his mind to the Civil Service [interim] Regulations, L.E. 47 in this appeal. If he had, he would not have dwelt solely on Regulations of 1965 L.I. 461 which are not applicable in the circumstances.

I am inclined to believe that regrettably counsel allowed himself to be misinformed when under cross-examination, the Respondent's Representative told the court that L.I. 47 was not in existence at the time the plaintiff was dismissed. To a question by counsel to the Respondent's Representative, "Can you confirm or deny whether at the time plaintiff was dismissed, L.I. 47 was still in existence?, the answer is "NO. It was not in existence" The position is that L.I. 47 was and it is still in existence.

Counsel for the Appellant referred to Art. 190 [1], of the 1992 Constitution under which the national Fire Service is included in the list of the public service.

He submitted that under Article 191[b] of the 1992 constitution — "A member of the public services shall not be dismissed, or removed from office or reduced in rank or otherwise punished without just cause".

The Appellant's dismissal from office cannot be said to be without just cause in the light of the evidence before the court.

It is for this reason and the others that I am also of the view that the appeal be dismissed.

KANYOKE J.A.

I have had the benefit of reading before hand the judgment of my brother Mr. Justice Kusi-Appiah and I agree with him that the appeal in this case should be dismissed. I wish however to add a few words of my own on the merits of the appeal.

The facts of the case culminating in this appeal have been amply set out in the judgment of my brother and so I need not repeat them herein.

The plaintiff/appellant [hereinafter called the plaintiff for short] complains against he judgment of the High Court, Cape Coast on the following grounds of appeal namely that:—

"[1] The learned trial judge erred in law by holding that the plaintiff did not deserve to be given a hearing as stipulated in the legislative instrument L.I. 461 which governs the rules of service of the Ghana National Fire Service

[2] The judgment is against the weight of evidence led at the trial.

[3] The judgment and findings made have no basis in law."

I think the gist or the main thrust of this appeal is ground [1] of the grounds of appeal. The contention of learned counsel for the plaintiff on this ground is that regulation 19[b] of L.I. 461 under which the plaintiff was purportedly dismissed is not penalty creation regulation. In other words reg. 19[b] of L.I. 461 does not say that any member of the service can be summarily dismissed under it, it simply states that a member of the service commits an offence if he does any of the acts specified in that regulation.

Besides regulation 20 of L.I. 461 goes on to state that any member of the service who commits an offence under reg. 19[b] shall be liable to appear before a Disciplinary Tribunal to be appointed by the Chief Fire Officer. Learned Counsel for the Plaintiff therefore submitted that since the evidence does not show that the plaintiff appeared before the Disciplinary Tribunal and was proved to have committed the offence of vacation of post, his summary dismissal was wrongful I must admit that the submission of learned counsel for the plaintiff, looked at first blush sounds attractive but a close scrutiny of the record of proceedings will show that both learned counsel for the plaintiff and the defendant respondent [also herein after referred to simply as the defendant] went astray and unfortunately missed the real question in controversy in the case.

A careful examination of the record of proceedings inclusive of the provisions of L.I. 461 shows that the plaintiff was not dismissed under the direct and stated provisions of L.I. 461 even though he purportedly committed the offence of vacation of post under reg. 19[b] of L.I. 461.

Regulation 19[b] of L.I. 461 provides: "A member of the Service commits an offence under these Regulations if he [b] is careless or negligent in the execution of his or her duties or is absent from or late for duty or any parade or drill."

And regulation 20 of L.I. 461 provides the procedure for initiating internal disciplinary proceedings against a member of the service who commits and is charged with an offence under regulation 19[b].

Reg. 20 provides:

"A member of the Service charged with an offence under regulation 19[b] shall be liable to appear before the Disciplinary Tribunal consisting of one or more Officers not below the rank of Assistant Divisional officer appointed by the Chief Fire Officer".

A further close look and examination of the entire L.I. 461 shows that the penalty of summary dismissal of a member of the Service who commits an offence under reg. 19[b] is not provided for expressly in that legislative instrument. Thus regulation 25[1] of L.I. 461 which provides penalties under L.I. 461 states.

"A member of the Service against whom any charge has been proved at a hearing under these Regulations may be punished by:—

[a] dismissal from the service

[b] being ordered to resign as an alternative to dismissal forthwith or at a specified date.

[c] reduction in rank

[d] stoppage of pay or increment

[e] reprimand

[f] caution

[g] extra drill."

[my emphasis]

The cumulative effect of regulations, 19[b] 20 and 25[1] of L.I. 461 is that any member of the Service who commits any of the offences listed under reg. 19[b] must first of all be charged with that offence, [2] must be made to appear before an internal Disciplinary Tribunal and [3] must be proved at a hearing to have committed the offence alleged against him or her and when that is proved he or she can then be punished under regulation 25 [1]. Therefore the punishment of summary dismissal, that is, instant dismissal without a charge and a hearing is non-existent in L.I. 461. That is, the punishment of summary dismissal is not provided for in L.I. 461.

But the record of proceedings in this case shows that even though the plaintiff was alleged to have committed the offence of vacation of post, apparently under reg. 19[b] of L.I. 461 he was not made to appear before the Disciplinary Tribunal and he was also not punished under reg. 25 [1] of L.I. 461, since he was not given a hearing. It is clear therefore that the internal disciplinary procedure provided under reg. 20 of L.I. 461 was not invoked against the plaintiff.

The evidence in the record of proceedings is that it was the Chief Fire Officer who summarily dismissed the plaintiff for vacation of post. In my opinion the phrase" absent from duty" as stated in reg. 19[b] of L.I. 461 can be widely interpreted to include vacation of post for obviously when you vacate your post you have in effect absented yourself from duty even though vacation of post connotes a more permanent or prolonged absence of duty than a mere absence from duty. I accordingly agree with and support the learned trial judges findings that on the evidence the plaintiff had committed the offence of absence from duty by vacating his post for the prolonged period of 206 days. The gist of this case is therefore whether the plaintiff's summary dismissal was wrongful. At the trial the law put the onus on the plaintiff to prove that his summary dismissal was wrongful. See the case of Overseas Breweries vs: Agah [1968] G.L.R. 192 where it was held as appear in the head note that "In an action for wrongful dismissal the plaintiff must allege and prove that his dismissal was wrongful and without lawful cause or excuse ........"

See also the case of Lush v. Russell [1849] 4 Exh. 637 and Horton v. Maemurbry [1860] 5 H and N. 667. It does not appear to me that the plaintiff was able to discharge that burden at the Court below in this case

I appreciate the fact that learned counsel for the plaintiff had to prosecute the case of the plaintiff the way he did because of the regrettable and unfortunate way learned counsel for the defendant conducted the defence of the defendant. But I think both counsel are to blame for the prosecution and the defence of the suit within only the narrow compass and perspective of reg. 19[b] of L.I. 461. If they had been a bit circumspect and industrious in their conduct of the case they would have realised that the plaintiff's summary dismissal was not done under regulations 19[b] and 20 of L.I. 461. Both counsel should have been a bit exploratory in their work. If they had adopted a more exploratory attitude to the conduct of this case, they would have noticed that L.I. 461 is not the only legislation that governs the service conditions of members of the National Fire Service as far as discipline is concerned. In fact paragraph 3 of the plaintiff's letter of appointment [exhibit 1] stated in explicit terms that: "3. You would be subject to the National Fire Service Act and any other statutory instrument made thereunder and departmental instructions in force."

L.I. 461 is obviously a statuary[sic] instrument made under the National Fire Service Act Consequently having come to the conclusion that regulation 19[b] did not create the penalty of summary dismissal learned counsel for the plaintiff should have explored further to see whether the plaintiff's punishment could be justified under any other provision of L.I. 461 since it was the plaintiff who had the burden to prove that his dismissal was wrongful. If learned counsel for the plaintiff had been more exploratory he would have discovered that regulation 27 of L.I. 461 also provides that:

"Except where otherwise in these Regulations provided the provisions of the Civil Service [Interim] Regulations, 1960 [L.I. 47] shall apply to the Service as they apply to the Civil Service".

As I stated earlier on in this judgment L.I. 461 has not provided for the penalty of summary dismissal of errant members of the Service who commit offences under reg. 19[b] of L.I. 461. Therefore since the plaintiff was summarily dismissed it must have been done under L.I. 47 which has by virtue of reg. 27 of L.I. 461 been incorporated into and forms part of L.I. 461. Furthermore the evidence on record shows that the plaintiff was not dismissed by the Chief Fire officer on the recommendation or decision of the Internal Disciplinary Tribunal of the Service as provided under reg. 23 of L.I. 461 which states: "A decision by a Disciplinary Tribunal shall, before taking effect be confirmed by the Chief Fire Officer who shall have the right to reverse any or confirm any decision of a Disciplinary Tribunal" By virtue of the incorporation of L.I. 47 into L.I. 461 it is clear that reg. 19[b] of L.I. 461 which provides offences punishable against members of the Fire Service is not exclusive of offences punishable against Fire Service personnel under L.I. 47. In other words in addition to offences under reg. 19[b] of L.I. 461 which if committed by members of the Fire Service, are punishable under reg. 25[1] of L.I. 461, Fire Service personnel may also be punished for offences committed by them under L.I. 47 by virtue of reg. 27 of L.I. 461. Regulation 56[1] of the Civil Service [Interim] Regulations 1960, [L.I. 47] provides:

"Without prejudice to the taking of disciplinary proceedings in respect of any absence from duty without leave or reasonable cause for a period exceeding 10 days and the civil servant cannot be traced within a period of 20 days commencing of such absence or if traced, no reply to a charge of absence from duty without leave received from him within 10 days after the dispatch of the charge to him, then the disciplinary authority empowered to dismiss him may summarily dismiss him". .

Regulation 40[4] of L.I. 47 defines a disciplinary Authority for the purposes of regulation 56[1] as follows:

"40[4] The disciplinary authority for holders of all other category C and all other category D post shall be the Head of Department"

The plaintiff's appointment letter [exhibit 1] does not indicate whether he was the equivalent of a category A, B, C or D officer in the Civil Service but in my opinion the manner in which the plaintiff was dealt with solely by the Chief Fire officer [i.e. Head of the Department or organization] as disclosed by the record of proceedings shows clearly that the plaintiff was holding the equivalent post of either a category C or D [1] office.

Thus, for example before his dismissal the Chief Fire officer by exhibit 3 gave the plaintiff ten [10] days to report for duty at his new station or consider his post declared vacant. Exhibit 3 stated inter alia, as follows:

"2. As at 13th November, 2002 you have failed to report for duty since your transfer on 16th September, 2002 form [sic] Cape Coast to Kintampo.

3. You have ten [10] days from the date of this letter to report for duty else your position will be declared vacant.

4. By a copy of this letter the Regional Fire Officer [Brong Ahafo] is to give us feed back after the ten [10]days"

To me the fact that the offence of "absence from duty" was leveled against the plaintiff in exhibit 3 is evidence that he had been charged with that offence by exhibit 3. And in accordance with regulation 56[1] of L.I. 47 the plaintiff was given ten [10] days to report for duty or consider his post vacant. The plaintiff had 20 days from the date of the commencement of the absence of duty i.e. from the date of the expiration of the ten [10] days to reply to that charge. The evidence on the record is that the plaintiff did not comply with regulation 56[1] of L.I. 47. Consequently by a letter dated 29th January 2003 [exhibit 4] the Regional Fire officer [Brong Ahafo] wrote to the Chief Fire Officer inter alia, as follows:

"Re: Transfer . . . Seth Appiah-Sarfo [9200517 K]

Sir, I refer to the above subject and wish to inform you that the above named officer reported for duty on the 22nd January 2003 and left the station on Saturday 25th January 2003 without the District Fire Officer's permission........."

By exhibit 3 dated 4/12/2002 the plaintiff ought to have reported for duty at his new station-Kintampo on 24/12/06 but he did not do so. His whereabouts were unknown from the 4/12/02 until he reported on 22/1/03 beyond the period of 20 days.

It is in evidence on the record of proceedings that the plaintiff claimed not to have received exhibit 3 i.e. the letter giving him ten [10] days to report for duty at his new station. The question whether the plaintiff received that letter or not was a question of fact for the trial judge to resolve. It was a question of the credibility of the plaintiff for the trial judge to decide. The evidence on the record is that the trial judge found as a fact that the plaintiff absented himself from duty for a period of 206 days i.e. from the 16th September, 2002 to the date of his dismissal on 14th April, 2003, thereby disbelieving the denial of the plaintiff that exhibit 3 reached him. We sit here as an appellate Court. We are in disadvantaged position because we did not see the demeanor of the plaintiff nor heard his evidence. The trial judge based his finding on the demeanor and credibility of the plaintiff as well as the witness for the defendant. The law is that where findings of fact are based on the demeanor and credibility of witnesses the appellate court being in disadvantaged position of not having seen and heard those witnesses should be extremely slow in reversing such findings of fact made by the trial court or judge. The Supreme Court in the case of Koglex Ltd. [No.2] v. Field [2000] SCGLR 175 stated this principle of law at page 176 as follows:

"Where the findings of the trial court were based on the demeanor and credibility of the witnesses then the trial court which had the opportunity of seeing and hearing the witnesses was in a decidedly better position than an appellate Court. The appellate court should therefore be extremely show in interfering with such findings . . . . ."

In the instant case the learned trial judge found that the plaintiff absented himself from duty for a period of 206 days and accordingly concluded that he had vacated his post thereby disbelieving the plaintiff that he did not receive exhibit 3. This appellate court will not therefore interfere with that finding which is amply supported by the evidence on the record. In my view, by virtue of reg. 27 of L.I. 461 which had incorporated L.I. 47 into its provisions, the plaintiff was by necessary implication dismissed under L.I. 461 and more particularly under reg. 56 [1] of L.I. 47. The Chief Fire officer had, in my opinion the discretion and the option to either invoke the Internal Disciplinary procedure against the plaintiff under regulations 20 and 25 [1] of L.I. 461 or under the regulation 56[1] of L.I. 47 against the plaintiff. The manner in which the plaintiff was summarily dismissed by the Chief Fire officer without a recommendation or decision by the Disciplinary Tribunal of the Service as provided under reg. 20 of L.I. 461 is a clear indication that the chief Fire Officer opted for the procedure under reg. 56[1] of L.I. 47 in summarily dismissing the plaintiff. Learned counsel for the plaintiff took a swipe at the trial judge's holding that the plaintiff did not deserve to behead. I will endorse that holding that the plaintiff did not deserve a hearing. The reason is simple. The trial judge found that the plaintiff was not only absent from duty but that he had infact vacated his post. The evidence on the record shows that the whereabouts of the plaintiff were unknown from the 26th January 2003 to the date of his dismissal on 14th April, 2003. The plaintiff had in effect by that vacation of post removed himself from the opportunity of being heard. In those circumstances it was impossible and impracticable to give the plaintiff the opportunity of being heard. The rules of natural justice, particularly the audi alteram pactem rule postulates that the person or party who should be heard is available and ready to be heard. Consequently, where that person or party has by his own default made it impossible and impracticable to be heard, then he cannot justifiably complain of not being heard. In the instant case the plaintiff having himself vacated his post and made his whereabouts unknown to the Chief Fire Officer, cannot now complain that he was not given a hearing before his summary dismissal.

In conclusion I will affirm the trial judge's finding and decision that the plaintiff was justifiably and lawfully dismissed. In other words his summary dismissal was not wrongful. I will dismiss the appeal and it is accordingly dismissed