BR. PETER MATE SIAKWA V. UNIVERSITY FOR DEVELOPMENT STUDIES (UDS) TAMALE

JUDGMENT

IRENE C DANQUAH J A

By a letter dated 3rd January, 1997, the plaintiff (appellant), a Clinical Microbiologist, was offered employment as a lecturer in the Department of Microbiology, School of Medicine and Health Sciences, University for Development Studies (Respondent) in Tamale.

The appointment was for an initial period of two years from the date of assumption of duty within which period the appellant would be on probation. On satisfactory completion of the probation, the appointment was to continue to September 30, 2003 and thereafter renewable one academic year before the expiration of the tenure.

The appellant could terminate the appointment by giving the Vice-Chancellor notice on or before the end of December to take effect at the end of September of the following year. In the letter under reference, it was stated that the appointment was full time and any additional occupation or employment might be accepted only with the prior written permission of the Vice-Chancellor.

On 18th January, 2005, the appellant, as the Head of Department of Anatomy (HOD Anatomy) wrote an Internal Memorandum to the Vice-Chancellor through the Acting Dean. The subject matter of the memorandum was “Annual Leave.” Attached to the memorandum was a Leave Application form for Senior Members of the respondent, in which the appellant indicated that the Leave being applied for would commence on 1st March, 2005 and end on 30th May, 2005. The Leave Application form was signed by the appellant on 12th January, 2005.

Then on 29th April, 2005, the respondent wrote to the appellant that his name had been deleted from the payroll because its attention had been drawn to the fact that the appellant had taken an appointment elsewhere. On the same day, the appellant wrote his response.

Thereafter, there were series of exchanges of correspondence between the appellant and the respondent.

Eventually on 11th October, 2005, the respondent wrote to the appellant terminating his appointment. After further exchanges of correspondence between the appellant and the respondent, the appellant, not happy with the stance taken by the respondent, issued a Writ of Summons against the respondent claiming the following reliefs:

“1. General Damages for unlawful termination of appointment.

2. Recovery of a sum of two hundred and fifty-four million, one hundred and thirteen thousand eight hundred and twelve cedis seventy-three pesewas (¢254,113,812.73) being salaries, allowances, and other benefits and entitlements due to plaintiffs as at the time of termination of his appointment on the 11-10-2005.

(a) Interest on this amount from the date due to date of payment.

3. Recovery of accrued and prospective benefits of plaintiffs under the Ghana University Staff Superannuation Scheme (GUSSS).

4. Any further or other reliefs deemed fair and just under the circumstances.”

The facts gathered from the appellant’s statement of claim are that although the appellant was entitled to enjoy 62 consecutive days off duty as leave in every year, he was persuaded to defer his leave for 7 years by the respondent. Some of the reasons for the deferment were due to lack of competent replacement of staff and the peculiar nature of the Department headed by the appellant. The appellant contended that under the conditions of service, he was entitled to receive full payment for his annual leave. He proceeded on leave for 62 days having applied on 18th January 2005 to commence his leave from 1st March 2005 and end on 30th May 2005 and same having been granted by the respondent. It was whilst on his leave that the respondent through the Acting Registrar wrote a letter informing him that his name had been deleted form the payroll because the respondent alleged that its attention had been drawn to the fact that he had taken on appointment elsewhere and requested him to confirm the allegation. On receipt of the said letter, he expressed his surprise at the conduct of the respondent in his reply and demanded payment for his 7 years accumulated leave from 1997 to 2004 amounting to 434 days. The appellant contended that the conduct of the respondent in deleting his name from the payroll upon unconfirmed allegation without giving him the opportunity to respond was wrongful, unfair, unjust and against natural justice and rule of law. The appellant contended further that without admitting but even if he had taken up an appointment elsewhere during his leave period that per se was no grounds for deleting his name from the payroll as such an action in the respondent’s conditions of service and practices was not forbidden.

The respondent, in its Statement of Defence, pleaded that the appellant without any approval unilaterally proceeded on leave.

The respondent averred that when the appellant absented himself from post, he took up employment with University of Cape Coast which employment was outside the scope of the terms of his employment with the respondent. The respondent contended that the appellant being a Senior Member in the academic grade was entitled to Sabbatical Leave and not annual leave since he enjoyed breaks after each semester. In respect of the appellant’s salary, the respondent averred that the appellant was remunerated by University of Cape Coast during the period and as such the action of the respondent to delete his name from the payroll was in accordance with the agreement he entered with the respondent.

After issues were joined, the parties proceeded to trial. The appellant after adducing his evidence did not call any witness. However, the respondent led evidence through the following persons: the Registrar (DW1), the Finance Officer (DW2) and the Vice-Chancellor (DW3) of the respondent University and the Deputy Registrar of University of Cape Coast (DW4) who was subpoenaed by the respondent.

On 6th July, 2007, the trial court delivered its judgment and concluded that the action taken by the respondent to terminate the appellant’s appointment was in accordance with the rules of the respondent’s statute. The trial court therefore refused all the claims of the appellant except the recovery of his benefits under the Ghana University Superannuation Scheme and entered judgment in favour of the respondent.

The trial court also awarded cost of ¢10,000,000.00 (GH¢1,000.00) against the appellant.

The appellant, aggrieved by the said judgment mounted this appeal on two main grounds in addition to the omnibus ground to file additional grounds on receipt of the record of proceedings. Subsequently, the appellant filed eight additional grounds pursuant to leave granted him by this court on 26th February, 2008.

In the written submissions of counsel for the appellant, grounds 1 and 2 of the original grounds were taken together. They read as follows:

“Ground 1: The judgment is against the weight of evidence.

Ground 2: The Honourable Court erred in failing to apply existing Law to the evidence.”

In the unanimous decision of the Supreme Court in Tuakwa v. Bosom reported in [2001-2002] SC GLR, 61, the head note reads as follows:

“An appeal is by way of rehearing particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on the preponderance of the probabilities the conclusion of the trial judge are reasonable and amply supported by the evidence.”

See also DJIN v. MUSA BAAKO [2007-2008] SCGLR 686 AKUFO-ADDO v. CATHERINE [1992] 1GLR 377 S.C head note 3.

I am therefore bound by these decisions to scrutinize the entire record before me before arriving at any decision in this appeal. Since the first original ground is that the judgment was against the weight of evidence.

Proceeding on grounds 1 and 2, counsel for the appellant submitted that the learned trial judge should have been guided by the Labour Act, 2003 (Act 651) which amended and consolidated the laws relating to labour, employers, Trade Unions and industrial relations and which were applicable as at 2005 when the judgment was delivered. Counsel referred to Exhibit 3, the Statutes of the respondent especially Statute 40 (1) the relevant portion of which states as follows:

“These Statutes shall not be interpreted in such a manner as to conflict with the existing laws of the land. ...”

Counsel contended that if the learned trial judge had applied S. 176 of Act 651 and Statute 40 (1) to the evidence adduced by the parties, he would have arrived at an irresistible conclusion that the plaintiff was entitled to damages for unlawful and wrongful termination of his appointment under relief (1) of the endorsement on the Writ. Counsel for the appellant referred again to section 63 (4) of Act 651 and contended that the law made it clear that a termination may be unfair if the employer failed to prove that the reason for the termination was fair or made in accordance with a fair procedure of the Act. He therefore submitted that the respondent ought to have complied with the mandatory provisions under Statute 39, Rule 7 of Schedule E (Disciplinary Rules) which is an Addendum to Exhibit 3 since the penalty the respondent imposed on the appellant was a major penalty. Counsel further submitted that the respondent failed to comply with the Disciplinary Rules by not serving the appellant with written charges and the opportunity to be heard before applying the sanction on him.

In response to the submissions of counsel for the appellant on grounds 1 and 2, counsel for the respondent however was in disagreement with him. Counsel for the respondent argued that since the appellant did not indorse his writ for a declaration that the termination of his appointment was wrongful in law, the trial court’s attention was not drawn to that issue and therefore the trial judge could not be faulted for not granting him damages. He was also of the view that Act 651 was not applicable to the appellant since S 66 (a) of the Act supra excepted workers engaged under a contract of employment for a specific period of time or for specific work. He contended therefore that since the appellant was under a contract for a fixed period of time he cannot avail himself of the provisions under S. 63 (4) of Act 651.

In respect of the issue on damages, the appellant’s relief as indorsed on the Writ reads as follows:

“General damages for unlawful and wrongful termination of appointment.”

To buttress his claim for general damages, I find it pertinent to reproduce paragraphs 11, 13 and 15 of the Statement of Claim:

“11. The plaintiff will contend that the way and manner the defendant has treated him and the ultimate termination of his appointment under the circumstances and manner aforesaid is unlawful, unfair and wrongful.

(a) The plaintiff has been denied opportunity to be heard at any and every stage which is contrary to natural justice.

13. The plaintiff will say that he has by unlawful termination of his appointment suffered monetary and other losses including his present and prospective salaries, allowances and entitlements like superannuation, sabbatical leave and others.

15. The plaintiff will say that he is entitled to recovery (of) general damages from the defendant for losses incurred as a result of the termination of his appointment.”

It is clear from the pleadings referred to supra that the appellant laid sufficient foundation for seeking the relief in damages viz for the “unlawful, unfair and wrongful” termination of his appointment and also for the breach of the common law maxim of audi alteram partem. I will therefore not accept the argument of counsel for the respondent that the trial court’s attention was not drawn to any loss suffered by the appellant because he did not specifically indorsed his claim for a declaration that the termination of his appointment was unlawful and wrongful. In order to decide whether S 63(4) of Act 651 is applicable to the appellant, I will have to consider the type of employment that was offered to and accepted by the appellant.

The appellant was employed by the respondent by Exhibit 1, that is, the appellant’s appointment letter. In the said letter, the terms and contractual relationship of the appellant were clearly stated. The appellant was offered employment as a lecturer. Paragraph 2 of the said Exhibit 1 stated inter alia that “on satisfactory completion of the probation, the appointment will continue until September 30, 2003.” The initial term was subject to renewal. The employment of the appellant was obviously found to be satisfactory because he renewed the employment of the respondent after the probation period. It is therefore clear that the appellant was not one of the employees who could take advantage of S. 63 (4) of Act 651 as his contract was for a fixed period to end at September 2003 and for a specific work as a lecturer. I am therefore of the view that the learned trial judge was under the circumstances not obliged to invoke S. 63 (4) as applicable.

The last complaint under discussion of the first two grounds by counsel for the appellant was that the respondent did not follow the disciplinary procedures in Schedule E and also breached the audi alteram partem Common Law maxim by not giving the appellant a hearing before applying the sanction under Exhibit 3.

It is provided by article 23 of the Constitution, 1992, that:

“Administrative bodies and administrative officials shall act fairly and reasonably and comply with requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.”

It is provided under Statute 39 of Schedule E, Rule 7 and 7 (c) of the Disciplinary Rules of the University for Development Studies [Exhibit 3] as follows:

“7 “Where in the opinion of the Vice-Chancellor, a major penalty should be imposed in any disciplinary proceedings, he shall appoint official (s) within the University above the rank of the person to be disciplined, to conduct an enquiry into the charges and make appropriate recommendations to him;”

“ c) in the case of Senior Members, he shall refer the matter to a Disciplinary Board established under Rule 8, to conduct an enquiry into charges and make appropriate recommendation to the Vice-Chancellor.”

Rules 8 and 9 of the Disciplinary Rules state as follows:

“8. There shall be established a Disciplinary Board composed of the Pro-Vice Chancellor as Chairman and four members elected by the Council of Convocation, two of whom shall be Deans of Faculties and two shall be of the rank of Head of Department. The Registrar shall serve as Secretary to the Board and the quorum for transaction of business shall be three. The Board may, at its discretion, invite any other person to be in attendance.

9. a) In every case where a disciplinary enquiry is to be conducted under Rule 7, the person concerned shall be served with charges and be given the opportunity to state the grounds on which he proposes to exculpate himself. He shall also be entitled to be accompanied to the inquiry by a friend and to call witnesses on his behalf and to hear the evidence of any witnesses against him.

b) If no reply is received within the time specified in the notice, the Disciplinary Board Committee will proceed against him, in his presence or absence.

c) The provision will apply in every case against any offender whether he is within or outside the country.”

On 19th April, 2005, the Acting Dean of the respondent wrote an Internal Memo (Exhibit 6) to the Pro-Vice-Chancellor as follows:

“Sir,

I wish to inform you that Dr. Mate Siakwa is absent from his duty post. He has since not returned since duties resumed after Easter break.”

Prior to the writing of Exhibit 6, the appellant had on 18th January, 2005 applied for his Annual Leave from 1st March, 2005 to 30th May, 2005 and attached a duly filled and signed Leave Application form to it. See Exhibit A1 and A. These exhibits were sent to the Vice-Chancellor through the Acting Dean.

The Acting Dean on receipt of Exhibit A and A1 minuted on the face of Exhibit A1 that the appellant should elaborate on the mechanisms he (appellant) had put in place to complete his lectures and examinations. The appellant complied and stated he would complete his lectures. The appellant in his evidence at the trial said he received a phone call from the Vice-Chancellor thereafter on 26th January, 2005 and so proceeded to his office. The discussion centered on his leave application form and the mechanisms the appellant had put in place prior to proceeding on leave. After the appellant had told him that he would finish his teaching before doing so, the Vice-Chancellor told him he could proceed on his leave. The appellant said these discussions took place in the presence of the Pro-Vice-Chancellor.

In his evidence on oath, the Vice-Chancellor at pages 99 to 100 of the record stated that the appellant went to him to discuss several issues including his desire to proceed on leave but he advised him to apply through his Dean and copy to the Pro-Vice-Chancellor that way, his application was sure to reach him. He said he did not approve of the leave and therefore did not sign it.

Although, the Vice-Chancellor in evidence stated that there were no provisions in the conditions of service of the respondent that entitled him for leave, in cross-examination of the Registrar (DW1) on 1st March 2007 at page 126 this is what he said:

“Q: So as you normally do in relation to your forms the areas that were not filled are for official of the University and not plaintiff.

A: Yes, my Lord.

Q: You on occasions granted annual leave to some Members in the course of your administration.

A: Yes, my Lord.

Q: So, how many days do you grant to qualified applicants.

A: My Lord, qualified Senior Members who are permitted to go on leave take a maximum of 62 consecutive days or part thereof.

Q: In the course of your administration at the defendant’s University, has any Senior Member taken an accumulated leave for may be two years, three years or four years.

A: Yes, my Lord.”

At the time the appellant applied for his annual leave on 18th January, 2005, he had worked consistently from 10th February, 1997 without any leave and therefore from the answer of DW1, it is clear that the appellant was over qualified to be granted an accumulated leave not to mention an annual leave by the respondent. The fact that the respondent had printed application forms for leave for Senior Members gave away the fact that leave was allowed in the respondent’s work place contrary to the evidence of the Vice-Chancellor.

Therefore, all things being equal, there was no reason why the appellant’s leave application should have been refused.

However, unknown to the appellant and as gathered from the evidence of D.W.1, THE Vice-Chancellor of the University of Cape Coast had informed his colleague of the respondent university that the appellant was on his staff as a lecturer. That information might have prompted the respondent to write a letter dated 25th October, 2004 to the University of Cape Coast to formally enquire whether the appellant had assumed duty with them. Although that letter is not an exhibit before us, reference is made to it in the response to that enquiry by the University of Cape Coast in exhibit 14 dated 7th February, 2005. The relevant portion reads:

“In response to your letter No. P/Conf. 11266, dated 25th October, 2004 on the above subject matter, I write to inform you that Dr. Peter Mate Siakwa assumed duty on 1st February, 2005.”

Therefore at the time that the appellant applied for his leave, the respondent was privy to information between the appellant and U.C.C. in respect of his new appointment.

Nevertheless, the respondent kept quiet and pretended it did not know about this very important issue. It accepted the leave Application Form and the “Memorandum of the Applicant” from the appellant and wanted more clarification on what “mechanisms” the appellant had put in place prior to proceeding on leave. The Vice-Chancellor in the presence of the Pro-Vice-Chancellor met with him on 26th January, 2005 but did not raise nor confront the appellant with the information received by the respondent and which necessitated the writing of the letter dated 25th October, 2004 to enquire form U.C.C. The Vice-Chancellor in his own evidence said he did not approve the leave application. Yet on the face of Exhibit A, the Leave Application form for Senior Members which the appellant caused to be sent to him, the Vice-Chancellor did not indicate his ”leave approved” or “not approved” decision as was required of him. He also failed to sign the form and so did the Head of Department.

I may be wrong but it follows to reason that if the appellant alleged that the Vice-Chancellor told him he could proceed on leave in the presence of the Pro-Vice-Chancellor then it was the more probable evidence to be accepted since the Vice-Chancellor failed to communicate categorically his refusal of the appellant’s application for leave.

Then on 29th April, 2005, about two months after the appellant had proceeded on leave believing that he had been permitted to do so, the respondent caused Exhibit B to be written to the appellant.

For its full effects, I will reproduce the contents in its entirety.

“Dear Mr. Siakwa,

RE: ANNUAL LEAVE

Our attention has been drawn to the fact that you have taken an appointment elsewhere. Please confirm the information. Meanwhile your name has been deleted from the payroll. (Emphasis mine)”

In Statute 39 (c) [Exhibit 3] of the respondent, it is stated as follows:

“(c) The following are the penalties that may be imposed for breaches of discipline:

i. Dismissal.

ii. Termination of appointment.

iii. Suspension.

iv. Reduction.

v. Deferment of increment i.e. a postponement of date on which the next increment is due, with corresponding postponement in subsequent year.

vi. Stoppage of pay for stated period.

vii. Forfeiture of pay for stated period.

viii. Withholding of increment.

ix. Reprimand

x. Warning

xi. Rustication.

For the purpose of this Statute, i, ii, iii, iv, v, vii, and xi shall be treated as major penalties which shall be imposed by the Vice-Chancellor the other penalties shall be treated as minor ones.”

It is clear from the above that there is no sanction as deletion of name from payroll included in the penalties for breaches of discipline in Statute 39. I had recourse to Concise Oxford English Dictionary, 10th Edition and “payroll” is defined as:

“a list of a company’s employees and the amount of money they are to be paid.”

From the evidence on record, on 29th April, 2005 when Exhibit B was written by the respondent, no charges had been proffered against the appellant, no Board had been set up in pursuance of the Disciplinary Rules of the respondent to investigate the appellant for any indiscipline on his part and neither was the appellant given the opportunity to be heard.

Irrespective of these serious omissions, the respondent deleted the name of the appellant from the list of employees of the respondent and by so doing denied him his entitlement to be paid a salary. The deletion of the name of the appellant from the payroll, in my view amounted to constructive termination of appointment if not dismissal of the appellant and since it is of such a serious nature the rules of natural justice should have been observed.

In the instant case, it is obvious that the respondent because of their fore knowledge that the appellant was about to take employment or has taken employment at University of Cape Coast had concluded that the appellant was guilty of a breach of his contract of employment and therefore should be sanctioned. I am strengthened in this view because in Exhibit B, the respondent requested the appellant to “confirm” that he had taken employment else where. In essence, the respondent had already concluded that the appellant was culpable and had no defence save to admit it. In fact, from, the payment Advice at page 163 of the record, the salary of the appellant was actually stopped at the end of March 2005 even before the respondent wrote Exhibit B in April 2005 informing the appellant of the deletion of his name from the payroll.

In Lagudah v. Ghana Commercial Bank [2005-2006] SC GLR 388, Dr. Date-Bah JSC was of the view that where there is a contractual provision in the conditions of service, an employer is bound to observe the audi alteram partem rule before dismissing an employee. In the instant case, the parties were bound by Statute 39 of Exhibit 3 and Schedule E which is an addendum to Statute 39 and were therefore bound by the disciplinary rules there under.

I am very mindful that on 11th October, 2005, the respondent after exchanges of correspondence with the appellant wrote Exhibit G to “formally” terminate the appellant’s employment. In my humble view, those exchanges merely gave the impression that between April, 2005 and October, 2005 the respondent was giving a hearing to the appellant. But as stated earlier in this judgment, the actual termination of the appellant’s employment can be gathered from Exhibit B and Exhibit A. Between 29th April, 2005 and 11th October, 2005 when Exhibit G was eventually written, the name of the appellant was never restored to the payroll. Therefore how could the respondent terminate the appellant’s appointment in October, 2005 when the appellant had since April, 2005 ceased to be recognized as an employee of the respondent’s and further when his salary was actually stopped at the end of March 2005 as per Exhibit A.

In AWUNI v. WEST AFRICA EXAMINATION COUNCIL [2003-2004] SC GLR 471, the plaintiff and twelve other students at the Notre Dame Minor Seminary Senior Secondary School at Navrongo while waiting for their results in the 2000 Senior Secondary School Certificate Examination were informed through the headmaster of their school that the entire results had been cancelled by the Final Awards and Examiners’ Appointment Committee of West African Examination Council. The reason given was that the thirteen students had been involved in some malpractices or irregularities in respect of Mathematics (Core) Paper 2 and had colluded among themselves in solving the question. The council, in addition to the cancellation of their results, placed a three-year ban on them from taking any examination conducted by the council.

Sophia Akuffo, JSC, elucidated herself at page 514 of the report as follows:

“Where a body or officer has an administrative function to perform, the activity must be conducted with, and reflect the qualities of fairness, reasonableness and legal compliance. I will not venture to give a comprehensive definition of what is fair and reasonable, since these qualities are dictated by the circumstances in which the administrative function is performed. At the very least however, it includes probity, transparency, objectivity, opportunity to be heard, legal competence and absence of bias, caprice or ill-will. In particular, where as in this case, the likely outcome of an administrative activity is of a serious nature, no matter how strong the suspicion of the commission of the offence, it is imperative that all affected persons be given a reasonable notice of the allegations against them and reasonable opportunity to be heard, if the object of article 23 is to be achieved.” (Emphasis mine)

In the instant case, the respondent did not give a fair hearing to the appellant when it removed or cancelled or deleted his name from the payroll without first giving him a hearing. It acted arbitrarily, capriciously and with an open bias against the appellant when it acted on a fore-knowledge information which had not been investigated as mandated by the Statutes of the respondent.

In view of my earlier reasons, strengthened by the decisions in the Lagudah and Awuni cases supra, I will allow grounds 1 and 2 of the appeal.

I will now consider the additional grounds of appeal starting with the first ground namely:

“ The Honourable judge failed to appreciate and for that matter evaluate the evidence of the plaintiff/appellant particularly in relation to the claim for damages.”

Counsel for the appellant in arguing this ground, submitted that the appellant led sufficient evidence to support his claim for damages. In particular, he referred to Exhibit 10 where it is stated that a member of Ghana University Staff Superannuation Scheme (GUSS) show that a member whose appointment was terminated was entitled to full benefits of the scheme. Counsel argued that the appellant led evidence that the entitlements that he was paid was less than what he was entitled to. He further submitted that because the learned trial judge erroneously concluded that the termination of the appellant was in accordance with the rules of the Statute of the respondent, he failed to appreciate the evidence and thereby deprived the appellant the award of damages.

Counsel for the respondent, in response, argued that the management of GUSS contribution of its members is completely detached from the University administration. He argued, further, that in paragraph 6(11) of Exhibit 10, “full benefits” had not been defined but it is stated under clause 6(ii) that:

“where a member cannot qualify for the benefit under the scheme because he could not attain the minimum pensionable age or serve the minimum contribution period, he shall be paid his total contribution (both employers and personal) plus interest at a rate to be determined by the Management Board.”

Under clause 6(i) a member becomes qualified to benefit under the scheme on compulsory retirement or voluntary retirement. The minimum retirement age is fixed at fifty (50) years. In both situations, the member should have contributed to the scheme for a maximum period of fifteen (15) years. In a situation where a member, who as at 1st April. 1999, would not be able to contribute for fifteen years should qualify for benefits after a minimum of 10 years contribution. But in the case of the appellant, it is clear that in 2005 he had not reached the 15 years or 10 years and therefore came under clause 6(ii).

In Exhibit 9, the Notice of Payment Into Court, it is stated that the ¢32,286,631.65 (Thirty-two million, two hundred and eighty-six thousand, six hundred and thirty-one cedis sixty-five pesewas) was in respect of the total University Superannuation Scheme Contribution plus 20% interest from February, 1998 (7) to March, 2005.

Prior to the payment into court, the respondent advised the appellant in Exhibit A as to the quantum he was entitled to under the GUSS contributions from February, 1998(7) to March, 2005. In Exhibit L, which is a copy of the pay slip of the appellant, it is indicated that the appellant contributed ¢323,797.33 a month from his salary for SSF/GUSS. The onus under the circumstances was on the appellant to demonstrate how much he was entitled to be paid under the scheme in order for the trial court to determine whether he was under paid since he assumed the burden of proof and persuasion in his case on a balance of probabilities. I have earlier on considered the issue of damages which I am of the view that sufficient grounds were laid by the pleadings of the appellant and evidence and the trial court should have considered same. In principle general damages is given by the court to compensate an injured party including a party whose legal rights are denied him.

Additional ground 2 reads as follows:

“The Honourable judge having found the plaintiff was entitled to his claim under relief “C” on the writ erred in disregarding that issue and entering judgment in favour of the defendant respondent who in any case did not make a Counter claim, and also in awarding cost in defendant’s favour.”

Counsel for the appellant’s main argument under this ground is that in the course of the trial, the respondent conceded that the appellant was entitled to his benefits under the GUSS contributions scheme. Counsel for the appellant, therefore, submitted that the trial judge, having at least granted one of the appellant’s reliefs, ought not to have entered judgment in favour of the respondent and awarded cost against him.

Counsel for the respondent did not address the issues raised under Additional ground 2. Be that as it may, I have looked at the record and it is clear that the respondent did not put in a counter-claim and the concluding statement in the judgment that “In this case judgment is therefore entered in favour of the Defendant” has no factual or legal basis.

In respect of the award of cost in favour of the respondent, it is trite law that cost is awarded at the discretion of the court when it considers it fit to do so. Order 74 of C.I. 47 had set down the considerations that should guide the court in assessing cost. Therefore, if at the end of the trial the court decided to award cost, it is my view that it was in order unless the defeating party could justify that the award is excessive, or made arbitrarily and without regard to the guiding principles in all the circumstances of the case. The award of cost follows as a matter of course in every litigation and at the discretion of the court against the losing party and that was what was done in the instant case by the trial court.

Additional grounds 3 and 4 were argued together and I will consider them as such. They read:

“3. The Honourable judge was wrong in substituting his personal opinions and assumptions for the hard evidence and thereby making conclusions not borne out by the record.”

And

“4. The Honourable court judge erred in accepting and relying on a purported “vacation of post” given by the defendant/respondent in evidence as the termination of the appointment of the plaintiff/appellant, which basis is contrary to the one given in writing to the plaintiff and also in the defendant’s pleadings.”

Counsel for the appellant on these grounds argued that the trial judge expressed an opinion based upon the assumption he made at page 231 of the record that, the appellant “maybe was in a hurry to take up his new appointment at UCC” and by so doing arrived at the wrong conclusion that the respondent took a firm decision to delete appellant’s name form the respondent’s payroll for “vacation of duty post”. He further submitted that the conclusion of the trial judge was at variance with the pleadings of both parties and a deviation on the part of the respondents and ought to have been held against them.

In response, counsel for the respondent submitted that the appellant absented himself for more than 10 consecutive days because he proceeded on leave without approval and was thereby caught by rule 14 (a) and (b) of Schedule E of Statute 39 of the respondent. He continued that the respondent therefore took the view that the appellant had resigned from his employment more so when he did not disclose his address during that period.

I will straight away say that it is not correct that the appellant’s address was not known. In the Leave Application Form, the appellant provided his address during leave as “Tamale Teaching Hospital, Box 16, Tamale” and his telephone number was also provided.

When the respondent wrote Exhibit B on 29th April, 2005 using the address of School of Medicine and Health Sciences, University for Development Studies, it reached the appellant the same day and he responded the same day through the address the respondent used.

In Exhibit B, the reason given for the deletion of the name of the appellant from the payroll was because he had taken an appointment elsewhere. In Exhibit G, the reason given was that the respondent had confirmation that the appellant was in a full time employment of another public sister university in Ghana. The pleadings of both the appellant and respondent centered around the issue of the appellant having taken up employment with another university without leave being granted to him. At page 70 of the record which counsel for the appellant referred to, the following is an excerpt of the cross-examination of DW1, the registrar of the respondent.

“Q: When you wrote Exhibit “B” and got the plaintiff’s name deleted from your payroll, what was his offence?

A: It was vacation of post or absence from duty.

Q: So the reason was not what, you stated that he has taken appointment elsewhere?

A: That is part of vacation of post.”

Statute 39 Schedule E rules 3 (a) and (e) state as follows:

“3. It shall be a misconduct for an employee of the University:

(a) to be absent from duty without leave or reasonable excuse.

(e) to engage in any gainful occupation outside the University without the consent of the Vice-Chancellor.”

The answers solicited from DW1 through the cross-examination formed part of the evidence adduced in the case. As can be seen from the answers, DW1 was basing the reasons for the deletion of the name of the appellant on both Rule 3(a) and (e) of Schedule E of the Statute supra. DW1 used them not interchangeably but to him, the appellant, by engaging in a gainful employment at University of Cape Coast full time, was in effect, absent from his duty at the respondent University and that was regarded as vacation of post more so when the respondent alleged that the appellant’s absence was without approval. I will therefore not fault the learned trial judge when he relied on the solicited information by counsel for the appellant in cross-examination in his decision. The statement to the effect that the appellant was perhaps in a hurry to take up his new appointment with UCC is however, not borne out by any evidence and therefore unfortunate.

Ground 5 of the appeal reads that:

“The Honourable judge misinterpreted and misapplied the provisions of the Statute of the defendant University particularly Schedule ‘E’ of Exhibit 3, and therefore made erroneous deductions and conclusions against the plaintiff/appellant.”

In arguing this ground, counsel for the appellant submitted that instead of applying the clear provisions under Statute 39 rules 7, 8, and 9 of Schedule E, the learned trial judge misapplied rules 14 (a) and (b) thereof which were not applicable to the appellant. Rule 14(a) and (b) read as follows:

“14 a) Notwithstanding the provisions of paragraph 13 of these Rules, any member of staff who absents himself form duty without leave or a reasonable cause shall not be entitled to his salary for the period that he stays away from duty. The non-payment of salary shall be without prejudice to any disciplinary action which may be taken against him. (Emphasis mine)”

b) Without prejudice to the taking of disciplinary proceedings in respect of any absence from duty without leave or reasonable cause for more than 10 days, he may be regarded as having resigned from his employment without notice. If his whereabouts are known he must be informed in writing that his absence from duty has been thus regarded.”

I therefore agree with the submission of counsel for the respondent that the appellant as a Senior Member was caught by Rule 14(a) which did not make any exemption to any category of members.

However, as observed earlier in this judgment, the respondent under Rule 14(b) of schedule E was obliged to notify the member before applying the sanction where the whereabout of the member is known. Again as was observed earlier in this judgment, since the penalty was a major one, the respondent was obligated under Rule 7 to refer the matter to the Disciplinary Board set up under Rule 8 to conduct the enquiry in accordance with Rule 9 of Schedule E whether the offender was within or outside the country. To that extent I will allow this ground of appeal.

Ground 6 reads:

“The Honourable judge having found that the plaintiff’s appointment was terminated in October 2005 was wrong in refusing to award to him (plaintiff) his salaries for the period between March and October, 2005.”

The argument of the appellant’s counsel under this ground in essence is that, upon the pleadings and the evidence, the defendant admitted deleting the plaintiff’s name from the payroll on 29th April, 2005 before terminating his appointment on the 11th October, 2005 as borne out by Exhibit B and G respectively. He submitted that, that being the case, the learned trial judge should have granted the plaintiff his salaries and entitlements between the unlawful deletion of his name from the payroll in April 2005 and the date of the equally unlawful termination of his appointment in October.

Counsel for the respondent conceded to the above argument but he contended that there were sufficient reasons canvassed or put up by the respondent in its defence to sway the court not to order the payment of the salaries of the appellant for that period.

In the judgment, the learned trial judge, in refusing the appellant’s relief for salaries, based his reason on the fact that even before the Acting Dean first reported to the Registrar that the appellant had not returned to his duty post after the Easter break, the appellant had already taken up an appointment with a sister University (UCC) with effect from 1st February, 2005. He continued that “this meant that the plaintiff would have received another monthly salary from UCC by the end of February 2005”. The learned judge expressed the view that it would have been different if the appellant had received a salary during that period from a company not subvented. In the instant case, there is ample undisputed evidence that the appellant was placed on a salary by University of Cape Coast from February, 2005 as evidenced by Exhibit 15 and 16. It is also not disputed that both the respondent and University of Cape Coast are subvented tertiary institutions.

But the most important issue is that the appellant did not loose any salary and allowances for the period in contention. I will therefore refuse this ground as well because aside from the reason given by the learned trial judge, it will be against public policy to allow a person to receive double salary from a subverted institution at the cost of the tax payer.

I will therefore refuse this ground for that reason.

Ground 7 reads as follows:

“The Honourable judge misapprehended and therefore misapplied the meaning and impact of the “audi alteram partem” rule of natural justice to the circumstances of the plaintiff case”.

I think no useful purpose would be served by going over the submissions of counsel for the appellant and respondent since in my consideration of grounds 1 and 2 of the original grounds of appeal much consideration was given to the application of the Common Law Maxim of “audi alteram parterm” before arriving at my decision.

Finally, I will consider the last ground of appeal: Ground 8:

“The Honourable judge below was wrong in resorting to equitable consideration in the face of the evidence which was quite clear on the law and procedure applicable.”

Counsel for the appellant contended that both parties to the dispute were clear and definite as to the basis of their action which was based on documentary and oral evidence. Counsel further contended therefore that the case did not admit equitable consideration because there was ample statutory and common law provisions and principles to resolve the issue. Learned counsel for the respondent did not address this issue at all. Nevertheless, under Article 11 (2) of the 1992 Constitution, the laws of this country include the Common Law which comprises “the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior court of Judicature.”

In Equitable Remedies’ 6th Edition, by I.C.F. Spry, at page 6, this is what the learned author expressed concerning equity:

“Nonetheless the maxims of equity are of significance, for they reflect the ethical quality of the body of principles that has tended not so much to the formation of fixed and immutable rules, as rather to a determination of the conscionability or justice of the behavior of parties according to recognized moral principles. This ethical quality remains, and its presence explains to a large extent the adoption by courts of equity of broad principles that may be applied with flexibility to new situations as they arise.”

I will reproduce, verbatim, the relevant portion of the judgment which gave rise to this ground:

“The principles of equity may be invoked here in our solution or quest for fairness and justice in this case as far as the plaintiff is concerned. It is said that he who goes to equity must do so with clean hands. For example, whilst in the process of applying for his annual leave, early in 2005, he took up an appointment with effect from 1st February, 2005 at the same time he was entitled to his normal emoluments at UDS- the defendant university. It meant that he received salaries from the two universities at the same time.”

Undoubtedly, the trial court refused claim 2 of the appellant based on the above reasoning.

It is not in dispute that the appellant was on the payroll of University of Cape Coast from February, 2005 and therefore did not suffer any monetary losses in terms of salaries and allowances. I cannot therefore fault the learned trial judge on this ground since I had in my consideration of ground 6 of the additional grounds commented that to allow him double salary from two subverted tertiary institution would be against public policy and extra cost at the expense of the taxpayer, I will equally refuse this ground of appeal.

For all these reasons, I will allow the appeal in part because as stated earlier in this judgment, the termination of the appointment of the appellant by the deletion of his name from the respondent’s payroll when no charges had been preferred against him and no opportunity granted him to explain himself was unlawful. Under the circumstances an award of GH¢5,000.00 as general damages in favour of the appellant against the respondent will be fair and same is awarded accordingly.

The judgment entered in favour of the respondent by the High Court is hereby set aside to the extent that this appeal is allowed. The costs of GH¢1,000.00 awarded in the respondent’s favour is also hereby set aside.

The appeal is accordingly allowed in part.

(SGD.)

IRENE C. DANQUAH

JUSTICE OF APPEAL

I agree.

(SGD.)

MARIAMA OWUSU

JUSTICE OF APPEAL

I also agree

(SGD)

FRANCIS K. KORBIEH

JUSTICE OF APPEAL