ARKORFUL V. STATE FISHING CORPORATION

JUDGMENT

OSEI-HWERE J.A.

Until the defendants wrote to dismiss the plaintiff summarily, retrospective to 30 September 1976, the plaintiff was employed as the deputy chief security officer (investigations) of the defendant-corporation. His letter of dismissal alleged that he had allowed himself to be influenced by monetary gains when he was assigned to investigate a fish deal involving the theft of 50 cartons of fish by both a customer and an employee of the corporation. Aggrieved by his dismissal, the plaintiff brought this action and, by his amended writ, he claims for:

1. a declaration that his purported dismissal is wrongful; and

2. ¢2,000,000 (two million cedis) as (a) damages for wrongful dismissal; (b) the estimated current value (at the date of judgment) of salaries from 1 October 1976 to date of judgment; (c) damages for loss of employment; and (d) exemplary damages.

It all began this way: In the afternoon of 24 March 1976 the defendants’ marketing manager alerted security of fish selling activities on the premises of Ocean Fisheries. The plaintiff dashed to the scene with his assistant (the first plaintiff witness) to investigate. At the scene, they discovered a stack of 115 cartons of fish which one of the corporation’s customers, a Mary Boateng, came to claim. The plaintiff asked for the covering vouchers and she produced three of which one for 50 cartons bore her name and the two for 50 cartons and fifteen cartons each bore other names. At the scene also were the two security officers who supervised the supply of the fish. They pleaded with him that as she was not found selling the fish, he should not impound them. He gave the vouchers to his assistant with instructions to release the fish if satisfied with the vouchers. No suspicion was raised at that moment about the vouchers and they released the fish to Mary Boateng.

Then on the next day, 25 March 1976, something dramatic happened. The plaintiff’s assistant, Kenneth Ashong, the second plaintiff witness, was about to submit his report on the fish impounded and released when he found that the name on one of the vouchers was not clear. He went to the sales section to check on the name. It was there that he detected that that particular voucher had been used twice to collect fish. The plaintiff summoned Mary Boateng to his office and inquired whether she owned a retail shop and she said she did. As part of his investigations he went away with her to verify. Just before they entered Teshie she confessed that she owned no retail shop but smoking kilns. She then played some tricks with him and attempted to bribe him and he warned her off. They ended at Mary Boateng’s house where he reported her unlawful deals at the corporation to her husband. When he was leaving them Mary Boateng joined her husband to say good-bye to him and on reaching home he found a ¢20 note on the floor of his car where she had sat. When he got to work the following day he handed the ¢20 note to the second plaintiff witness and told him that Mary Boateng might have dropped it in his car and so it should be returned to her when she called. Mary Boateng called at the office that morning and, in his presence, the second plaintiff witness handed the ¢20 to her which she collected without a word.

Meanwhile, the plaintiff and his assistant continued their investigation and on 12 April 1976 they concluded that the fish (50 cartons) was stolen by Mary Boateng. He made a written report to their managing director through the chief security officer. He later confronted Mary Boateng who confessed that she conspired with two others, security assistant Asare and tally clerk Kyeremateng, to steal the 50 cartons of fish. She promised to pay for the stolen fish and his assistant wrote down ¢816 as the value of the fish which she signed and gave an undertaking to pay the amount.

Following the plaintiff’s report, a disciplinary committee was set up to investigate the theft of the 50 cartons of fish. The committee sat for the first time on 24 June 1976 and present, among others, were Mary Boateng and her two accomplices, Asare and Kyeremateng. The committee sat again on 28 June 1976 when, according to the plaintiff, only one of the three members of the committee was present. That day the unexpected happened. He became the accuser-accused; for instead of “prosecuting” before the committee, he found that he had been made an accused upon the allegation that he had extorted ¢60 from the now notorious Mary Boateng. He denied her allegation and, from then on, hell was let loose as everybody at the meeting, except a Col Ashun, accused him of taking the bribe. The meeting came to an abrupt end. On 2 July 1976 he petitioned to the defendants’ managing director to reconstitute the membership of the committee. He complained that the committee’s chairman was hostile to him. Meanwhile the defendants wrote to interdict him effective from 7 July 1976. As a result of his interdiction he kept away from duty and he was not invited to the sitting of the committee. Ultimately, as noted before, the defendants wrote to dismiss him upon their acceptance of the report submitted by the committee. The plaintiff’s main grievance, articulated by paragraph (3) of his statement of claim is that he got to know of the basis of his dismissal only after he had been served with the dismissal letter and that he was never permitted to confront Mary Boateng or to defend himself generally.

The defendants gave evidence by their deputy managing director who, at the time he testified, had been with the defendant-corporation for only two years. He relied heavily on the report of the committee to justify the plaintiff’s summary dismissal. The report was tendered as exhibit 2. According to him, it came to light during the sitting of the committee that the plaintiff had once been interdicted for extorting ¢40 as per exhibit 1 dated 9 October 1975. Again he was warned as a result of unfavourable report dated 28 October 1975. He further alleged that when the plaintiff applied for employment by the defendants he filled a form in which he stated that he did not wish the defendants to make any reference to his present or previous employers. He contended that the plaintiff appeared before both the original and the reconstituted committee.

It is a sad commentary that even though they maintain the services of a solicitor, the defendants’ board saw it fit to accept and act on the committee’s report which I can describe in the least as “bogus.” Reading through exhibit 2, it becomes quite clear that the committee gave the plaintiff a very raw deal and abused the ordinary norms of natural justice. The decision to investigate the plaintiff, as admitted in exhibit 2, came at a later stage. As explained in the report, this became necessary in view of the plaintiff’s complaint contained in his letters of 2 and 7 July 1976. Before then (again from the report), Mary Boateng had been called before the committee on 25 June when she made her allegation against the plaintiff that he had taken ¢60 from her. The plaintiff said that she rather appeared before them on 28 June. The correct date of her appearance is immaterial but it was certainly before the plaintiff’s petition complaining about the lack of quorum and other matters.

The plaintiff’s petition of 7 July 1976 (which has been inked to read 5) tells its own jeremiad. The lack of quorum complained of when Mary Boateng appeared was confirmed by the first plaintiff witness, Kenneth Ashong, and by the report (exhibit 2) which states that the committee was reconstituted for lack of quorum. The accusation of the plaintiff by Mary Boateng before the committee could itself not pass muster. She was double-tongued and conflicting in explaining why she parted with the ¢60. She corroborated both the plaintiff and the first plaintiff witness that the ¢20 (which she obviously planted in the plaintiff’s car to allure him) was returned to her with the same explanation the plaintiff had asked the first plaintiff witness to convey. It is true Mary Boateng allegedly told the committee that she took back the ¢20 suspecting that it was the first plaintiff witness’ share he had returned out of fear. In spite of the diaphanous stories told to the committee by Mary Boateng, which no impartial committee of inquiry could accept, and also of the fact that the plaintiff had pursued his investigation against her to its conclusion, the defendants decided to put the plaintiff in the rack by extending the committee’s terms of reference to investigate him.

The stated terms of reference, as quoted in exhibit 2, are: “To investigate an allegation against Mr Arkorful, Deputy Chief Security Officer (Investigations), that he extorted money from one Madam Mary Boateng in connection with the case under investigation.” In carrying out this duty the committee violated the simplest rule of natural justice, namely the right of the plaintiff to face and challenge his accusers or, simply put, the right to be heard. It is not difficult to discern from the report that after his initial confrontation of Mary Boateng, the plaintiff was absent when his other accusers paraded before the committee. One of these was a Mary Apenteng, another woman customer, who was invited by the committee to appear before it. The report said that during the altercation between Mary Boateng and the plaintiff she threatened to call the names of other women from whom he had extorted moneys. This led to the committee’s invitation of Mary Apenteng who said she gave ¢30 to the plaintiff that same day for his petrol after he had gone with her to inspect her smoking kilns. Her evidence before the committee indicates that she voluntarily offered this ¢30 and that she was not guilty of any remissness when she made the offer. Nothing is heard of the plaintiff’s defence in the report to Mary Apenteng’s allegation. On the contrary it was the committee which undertook her cross-examination.

The other accuser was one Mr Marful, a former assistant marketing officer in charge of Asamankese depot who had then been demoted and transferred to the head office as the result of diverting fish. The plaintiff was actively involved in investigating this man on his fish deal. A hint was thrown to the committee by the defendants’ marketing manager that the plaintiff took some money from Marful when he investigated his case and that sent the committee sniffing. The committee invited Marful who appeared and testified that the plaintiff extorted ¢60 from him during his investigation. Here again the report shows that the plaintiff was not brought face to face with Marful. The committee purported to invite Marful under its term of reference “to deal with any other matter the committee considers relevant.” This so-called “security vetting” which the committee undertook did not rest with the calling of Marful alone. Unashamedly, the committee took some steps further which it tried to justify this way:

“In its desire to find out whether the tendency to extort was acquired with Mr Arkorful’s appointment in the State Fishing Corporation and if so what conditions, if any, have helped to nurture this propensity, or whether it is ingrained, the committee made inquiries from the State Housing Corporation where Mr Arkorful had worked as investigations officer before joining the State Fishing Corporation.”

The committee then set down the information of certain misdeeds, like the extortion of a live goat, false overtime claims and unauthorised repair claims revealed by its private investigations.

The law, in its wisdom, does not subscribe to the prosaic and common-place concept that our misdeeds follow us from afar so that what we have been makes us what we are. It is for this reason that the law proscribes the proof of an offence against a person by proving that he has committed similar offences and that he was thereby likely to have committed the offence in question. The committee’s findings against the plaintiff flows from this very premise which is unacceptable in law, quite apart from the fact that the plaintiff was given no opportunity to be heard in his defence. I totally reject the report as not worth the paper on which it was written. As I have indicated before, Mary Boateng herself could not prove her charge against the plaintiff and it was a total miscarriage of justice for the committee to find that her accusation was established. It is clear from the foregoing that the acceptance of the findings of the committee by the defendants’ board as the basis for dismissing the plaintiff was also wrongful.

After the plaintiff had received his shocking and unjustifiable letter of dismissal, he left no stone unturned to secure his reinstatement by the defendants. To this end he petitioned the Chairman of the AFRC who, quick to the eye, saw the injustice done to the plaintiff and recommended his reinstatement: see exhibits B and B1. But, instead of complying with the recommendation, the defendants wrote back to the Chairman of the AFRC making all sorts of scandalous accusations against the plaintiff to justify their refusal to reinstate him: see exhibit B2. The plaintiff complains that since his dismissal he has applied to several institutions for employment but that, in each case, he was interviewed and when they got to know the circumstances in which he was dismissed by the defendants each refused to employ him. I have no doubt that until his name was cleared in court, the plaintiff had to wear his disgrace from office round his neck like an albatross and he stood to be shunned in the labour market.

The defendants, at the trial, pinned their defence as noted on the mast of their committee’s report. They took the plaintiff through cross-examination to demonstrate that he had committed certain previous offences. It is not being suggested that the defendants had no right to dispense with the services of the plaintiff if they were displeased with his past record. They could have terminated the plaintiff’s appointment with impunity by giving the three months’ notice stipulated in the existing conditions of service: see exhibit E. What is being said here is that his summary dismissal on the suppose ground of dishonesty rooted on his past record was wrongful and also that the inquiry the defendants set in motion to establish the dishonesty flouted the time honoured rules of natural justice. In the result, I declare that the purported dismissal of the plaintiff was wrongful.

The plaintiff’s action is founded on his contract of employment. As explained by Jenkins LJ in Vine v. National Dock Labour Board [1956] 1 All ER 1 at 8, PC: “In the ordinary case of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract, and a claim for damages arises.” But what are the damages exigible? Our decided authorities are all at one that where a servant has been wrongfully dismissed from his contract of employment damages are to be measured by the amount of salary which the servant has been prevented from earning by reason of the wrongful dismissal: see Nyarko v. Bank of Ghana [1973] 1 GLR 70; Blay-Morkeh v. Ghana Airways Corporation [1972] 2 GLR 254 and Owusu-Afriyie v. State Hotels Corporation [1976] 1 GLR 247. Accordingly the plaintiff must be entitled to all his salaries thrown away, calculated from the date of his interdiction up to the date of judgment.

The effect of the declaration given in the plaintiff’s favour postulates that his employment still subsists as at the date of judgment. This means that the court has a discretion to order his reinstatement. The plaintiff has not asked for his relief, and, if he did, it will be invidious to order it since the defendant will be free to terminate his appointment by giving him the required notice. The court must do nothing in vain and must always endeavour to preserve the sanctity of contracts. For these reasons, his contract of service must now be properly brought to an end under clause 6(d) of exhibit E. To this end, I order that the defendants do pay to the plaintiff three months’ salary in lieu of notice to effectively bring his contract of service to an end.

In Addis v. Gramophone Co Ltd [1909] AC 488, HL it was held that where a servant was wrongfully dismissed from his employment, the damages for his dismissal cannot include compensation for the manner of the dismissal, or his injured feeling or for the loss he may sustain from the fact that the dismissal itself makes it more difficult for him to obtain employment. In Hemans v. GNTC [1978] GLR 4, CA an invitation was made to the court not to follow Addis (supra) and award damages for injured feelings but the court firmly rejected the invitation. Accordingly, even though the manner of the plaintiff’s dismissal tends to defame him, I do not think that he is entitled to any damages in that regard.

In spite of the damages to his pocket which the plaintiff is claiming, his counsel, with much industry, argues that he is entitled, in addition, to the “estimated current value” of the salaries he has lost. His argument, as far as I could understand him, proceeded on the premises that if say in 1976 the plaintiff’s salary of ¢10 per month could buy say ten bottles of whisky then if there should be a refund to him today of the said salary then that lost salary must be reckoned by the value of ten bottles of whisky today. To advance this claim, he tried to call a government statistician whose evidence, unfortunately, threw no light on this novel proposition. I do not think that this court can admit such a claim which, if entertained, will open the floodgates to embrace such an economic loss as a new head in assessing damages in breach of contract. I think that the invitation is dangerous and I reject it.

By his wrongful dismissal the plaintiff has been kept out of his employment for over ten years. If he had stayed in his job, I have no doubt that he would have earned his promotion. The calculation of his entitlements will, naturally, be reckoned on the substantive post he held at the date of his dismissal. In my view, the plaintiff should be entitled to damages for the prospective loss of this promotion which can conveniently be cushioned by his claim for “damages for loss of employment.” The result is that the plaintiff shall have judgment to cover the following:

(a). all his lost salary calculated from the date of his interdiction to date of judgment;

(b). payment of three month’s salary in lieu of proper notice;

(c). all his end of service awards calculated from date of judgment;

(d).¢400,000 damages for prospective loss of promotion or loss of employment; and

(e). interest on (a) and (b) calculated at the prevailing bank rate from the date of his interdiction to the date of judgment.

The plaintiff, shall in addition, be entitled to ¢100,000 costs. I award the costs on the upward side having regard to the conduct of the defendants which smacked of victimisation and plunged the plaintiff into fighting this suit. A word about procedure. The plaintiff’s counsel brought an application to correct the record of proceedings which I allowed. On looking back I am satisfied that the corrected passages have no bearing on the result of the judgment. I order that the defendants should make available to the plaintiff all the figures he requires to enable him enter this judgment.

COUNSEL

B B AMOO-GOTTFRIED FOR THE PLAINTIFF.

AYISI FOR THE DEFENDANTS.