LAWRENCE Y. A. OSEI V. MECHANICAL LLOYD LTD

J U D G M E N T

 

DENNIS D. ADJEI (JA)

This appeal is against the judgment of the High Court, Accra, which on 18th December 2009, entered judgment for the Plaintiff against the defendant for all the reliefs endorsed on the plaintiff’s writ of summons.  The reliefs were as follows: -

1. A declaration that the interdiction of the Plaintiff by the defendant without pay with effect from 27th October, 1997 is unlawful.

2. A declaration that the removal of the plaintiff’s name from the defendant’s payroll with effect from 27th October, 1997 amounts to unlawful dismissal.

3. An order for the recovery of all the emoluments due and payable to the plaintiff from October 1997 to the date of judgment on the salary scale applicable to the plaintiff.

4. Interest on relief (c) with effect from October 1997 to the date of payment.

5. That the Plaintiff be paid his monthly salary at the current rate for two (2) years in general damages.

The brief facts of the case were that the Plaintiff was an employee in the defendant’s company as an accountant.  He was employed by the defendant on 1st November, 1989.  On 27th October 1997, the defendant interdicted the plaintiff on the ground that certain anomalies were uncovered in the company’s accounts and as a result of that the Police invited the plaintiff to assist in the investigation into the accounts.  The interdiction was without pay and was to take effect from 27th October 1997.  The letter of interdiction was written by one Yaw Assah – Sam, General Manager and Resource Planning Officer of the defendant company.  The Plaintiff became aggrieved and instituted an action against the defendant that his interdiction is in conflict with the Collective Agreement, which is the contract between the defendant and its senior staff of which the plaintiff was a member.  After the plaintiff had instituted this present action against the defendant, the defendant wrote a dismissal letter to take retroactive effect from the date the plaintiff was interdicted.

On 10th February, 2010, the defendant filed seven (7) grounds of appeal.  The defendant gave an indication that he may file additional grounds of appeal but did not file.  The grounds of appeal are as follows: -

1. In the face of the evidence provided by the defendant particularly in exhibits 3, 4, 5, 6 and 7 which clearly established that the plaintiff was guilty of massive fraud and embezzlement resulting in huge financial losses to his employers the learned trial judge erred in finding that the allegations made by the defendant against the Plaintiff had not been proved.

2. Given the state of the law that proven misconduct by an employee against the interest of his employer justified summary dismissal even without a hearing the learned trial judge fell into grave error when he concluded that the failure by the defendant to confront the Plaintiff with the allegations made against him rendered the dismissal unlawful.

3. The learned trial judge erred in granting the plaintiffs relief (a) i.e. “A declaration that the interdiction of the Plaintiff by the defendant without pay with effect from 27th October 1997 is unlawful” when Article 13 (A) of Exhibit ‘1’ the Defendant Company’s Senior Staff Conditions of service tendered in evidence clearly stipulated that an employee could be interdicted without pay while criminal proceedings pending against him.

4. Having found that the Plaintiff was effectively dismissed from the employment of the Defendant Company on 27th October 1997, the decision by the learned trial judge to grant the Plaintiff reliefs (c) and (d) and award him full recovery of all emoluments due him together with interest from October 1997 to the date of judgment was wrongful and untenable.

5. The Plaintiff having failed to lead any evidence whatsoever on his salary or in support of his claim for damages the decision by the learned trial judge to award the Plaintiff payment of his monthly salary at the current rate for two years in general damages was totally unjustified and without any basis in law.

6. The judgment of the Court was totally against the weight of the evidence adduced at the trial.

7. The costs awarded against the defendant was unjustified and excessive.

I will start with grounds three (iii) of the grounds of appeal.  It provided as follows:- 

The learned trial judge erred in granting the plaintiffs relief (a) i.e. “A declaration that the interdiction of the Plaintiff by the defendant without pay with effect from 27th October 1997 is unlawful” when Article 13 (A) of Exhibit ‘1’ the Defendant Company’s Senior Staff Conditions of service tendered in evidence clearly stipulated that an employee could be interdicted without pay while criminal proceedings pending against him.  The trial High Court Judge held that the Plaintiff` was not given a hearing before the findings were made against him and it is contrary to Article 13(A) of the Mechanical Lloyd Company Limited Conditions of Service for senior Staff which was tendered as Exhibit ‘1’”.  

Article 13 of the Conditions of Service provides as follows: -

“ARTICLE 13( A) – SUSPENSION/INTERDICTION

In any case where it is considered that the interest of the company requires that an employee should cease forthwith to perform the duties of his post, such employee may be suspended/interdicted from duty on half pay or without pay, while proceedings which may result in his dismissal are being taken or are about to be taken or while criminal proceedings (other than for a motor offence or an offence involving any moral turpitude fraud or dishonesty) are being instituted against him.

If the disciplinary proceedings do not result in the dismissal of the employee the whole of any salary withheld from him shall be paid to him when the final decision is made.  All internal investigations are to be conducted expeditiously.

2.   The Power of Suspending an employee shall rest in the Managing Director provided that, in exceptional circumstances where any delay might be detrimental to the interest of the Company, such Power may be exercised by the Director of Finance and Administration.  An employee shall not be suspended without having first been given a fair chance to state his case. (Emphasis mine).

3.   When an employee is suspended by the Director of Finance and Administration, a full written report of the circumstances attending the suspension shall be submitted to the Managing Director at the first opportunity”.

The trial Court held that the basis of the Plaintiff’s interdiction was wrongful.  He held as follows: - “The basis of his interdiction and eventual dismissal being erroneous, I find his interdiction and dismissal wrongful”.  The trial Court’s basis for declaring the Plaintiff’s interdiction wrongful was grounded on the fact that the defendant failed to observe the audi alteram patem rule provided by Article 13 (2) of the Conditions of service for senior staff”.  

From the evidence on record, there is nothing to show that the Plaintiff was given a hearing before he was suspended/interdicted in accordance with article 13(A)(2) of the Conditions of Service and the trial High Court Judge was right in holding so.  What constitutes hearing was discussed by Adade JSC (as he then was) in the case of Aryee v. State Construction Corporation [1984-86] 1GLR 424 at 432 – 433 as follows: -

“But what is a ‘hearing’ in this context?  Where a board writes to an employee drawing his attention to alleged acts of misconduct and impropriety and invites a written explanation, we would think that the employee would have been given an opportunity to be heard.  And if the employee writes back answering the queries, and offers explanations and justifications for his conduct or otherwise upon ‘sober reflection’ withdraws the allegations and insinuations and apologizes for his conduct, then surely he would have taken advantage of the opportunity offered and would have been heard.  The board would then be entitled to take a decision on the basis of the answers, explanations, justifications or apologies given by the employee”.

In the instant case, there is nothing on record to show that the Plaintiff was given any form of hearing before he was interdicted and I find it to be unlawful.  When Mr. Prah took up the auditing, he also did not give the Plaintiff the opportunity to be heard.  When the defendant’s representative was under cross examination, the following question and answer emerged:

“Q: But the Plaintiff was never called to appear before Mr. Prah during the whole of the auditing?

A: I should think so because I never witnessed a meeting between them”.

The law is that where there is a condition of service between the employer and the employee, the employer cannot dismiss the employee without complying with the conditions of service.  I am fortified by the case of Aboagye v. Ghana Commercial Bank [2001 – 2002] SCGLR 797.   The Supreme Court speaking through Adzoe JSC (as he then was) in that case held thus:  “But the evidence is clear that the defendant bank did not observe the staff rules in dismissing the Plaintiff.  The disciplinary committee did not give the Plaintiff the opportunity to be heard as required by Rule 4:1.  The executive committee also failed to give the plaintiff a hearing even though mandated to do so by Rule 4:3”.

I am of the opinion hat the letter of interdiction written and signed by the General Manager, Resource and Planning is a nullity as the author is not one of the officers who have been permitted by the defendant company to write letters of interdiction/suspension.  Exhibit ‘A’ dated 27th October, 1997 was neither written by the Managing Director of the defendant company nor the Director of Finance and administration and the author of that letter lacked capacity to write same and it is null and void.  In the case of Macfoy v. United Africa Company Ltd [1961] All ER 1169 at 1172, PC the Court held thus:  “If an act is void, then it is in law a nullity.  It is not only bad, but incurably bad.  There is no need for an order of the Court to set it aside.  It is automatically null and void without more ado though it is sometimes convenient to have the Court declare it to be so.  And every proceeding which is founded on it is also bad and incurably bad”.

You cannot put something on nothing and expect it to stand.  Article 13(A)(2) of the conditions of service provides that the power to suspend a senior staff is the prerogative of the managing Director and in his absence it is the Director of Finance and Administration who can exercise that power and whenever he exercises that power, he must write a full report of the circumstances of the suspension to the Managing Director at the first opportunity.

Appeal is by way of rehearing and I am satisfied that the letter of interdiction was a nullity and anything founded on it too is a nullity.   Rule 9(1) of the Court of Appeal Rules, 1997 C.I. 19, provides as follows: “Any appeal to the Court shall be by way of re-hearing and shall be brought by a Notice of Appeal ………….”.  Ground three (3) of the appeal is therefore dismissed.

The Plaintiff’s name was removed from the Defendant’s payroll from 27th October 1997, when he was interdicted.  The deletion of the Plaintiff’s name from the payroll was precipitated by the void interdiction letter and same is void.   I will also affirm the judgment of the trial High Court, which granted relief (b). 

I will discuss grounds (i), (ii) and (iv) of the appeal together.  The Plaintiff was not served with a letter of dismissal when he was allegedly dismissed.  The Plaintiff instituted the instant action against the defendant on 22nd May 1998 when the defendant had not dismissed the Plaintiff.  It was on 8th March 2001, when the Defendant dismissed the Plaintiff summarily on a charge of Embezzlement of Company Funds.

The letter of dismissal states as follows: -

“Thursday, March 08, 2001.

RE: EMBEZZLEMENT OF COMPANY FUNDS – SUMMARY DISMISSAL

Dear Sir,

Ours dated October 27, 1997, interdicting you from the services of the company with effect from 27th October, 1997 refers.

Management has decided to dismiss you summarily from the services of the company for misconduct and negligence resulting in financial loss to the company.

The dismissal takes retrospective effect from 27th October, 1997.

Yours faithfully,

For Mechanical Lloyd”

In this judgment, I will say that the defendant’s interdiction was not only wrongful, it is a nullity.  There is a difference between an act which is wrongful and an act which is a nullity.  The Plaintiff should have sued for a declaration that his interdiction was a nullity but he made it wrongful and this Court being a Court of law has the power to amend relief (a) on the endorsement to enable the Court to determine the real question in controversy.  Black’s Law Dictionary eighth Edition by Byran A. Garner defines nullity as “something that is legally void”.  Wrongful is also defined as (1) Characterized by unfairness or injustice (2) Contrary to law; unlawful or wrongful termination”.

I am fortified by Rule 31(a) of the Court of Appeal Rules C.I. 19 which provides thus: “The Court may (d) make any order necessary for determining the real question in controversy”.  Rule 31 of C.I. 19 is in parri material to Rules 31 and 32 of the Old Supreme Court Rules 1962 (L.I 218).  In the case of Chahin v. Boateng [1963] 2GLR 174, the Supreme Court invoked Rules 31 and 32 of L.I. 218 and held that it had power to make any order necessary for determining the real question in controversy in the appeal; and to give any judgment and make any order that ought to have been made.

It is trite that this power could be exercised suo motu by the Court where it will not cause injustice to the other party.  In the case of Hanna Assi (No.1) v. Gihoc Refrigeration and Household Products Ltd. (No. 2) [2007 – 2008] SCGLR 16 at page 23, the Supreme Court speaking through Atuguba JSC held thus: “Under Order 28 Rule 12 of the then applicable High Court (Civil Procedure) Rules 1954 (LN 140A): ‘The Court or a Judge may at anytime, and on such terms as to costs or otherwise as the Court or Judge may think just, amend any defect or error in any proceedings and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings’.  It is trite learning that this power can be exercised by the Court suo motu”.

In the case of Wangara v. Wangara [1982 – 83] 1GLR 638 the Supreme Court per holding 5 of the head notes held as follows: “The appellate Court, in order to avoid multiplicity of actions could amend any writ of summons where it was appropriate to do so, and where it would not cause injustice to the other party”.

To ensure that justice is done, I will amend reliefs (a) and (e) on the writ to read (a) A declaration that the interdiction of the Plaintiff by the defendant without pay with effect from 27th October 1997 is a nullity.  (e)  General damages for wrongful dismissal.

Having found that the interdiction was a nullity, the Plaintiff was as at 27th October, 1997 an employee of the defendant and the deletion or removal of the Plaintiff’s name from the defendant’s pay roll was unlawful.

The ground (iii) of the defendant’s appeal is a non starta after having come to the conclusion that the interdiction letter signed by the Defendant’s General Manager, Resource and Planning was a nullity.  It is therefore dismissed as unmeritorious.

The letter of summary dismissal as written on 8th March 2001 and was to take retroactive effect from 27th October, 1997, the date the interdiction letter was written.  The defendant put something on nothing and the letter of dismissal cannot take retroactive effect.  The defendant effectively dismissed the Plaintiff as at 8th March 2001 and not October 1997.  The trial Judge’s finding that the deletion of the Plaintiff’s name from the Defendant’s pay roll on 27th October 1997 constituted unlawful dismissal is not backed by the evidence on record and that part of the judgment is hereby set aside.  It is totally against the weight of evidence on record and must be set aside.  Appeal is by way of rehearing and where the appropriate grounds of appeal are filed, it is the duty of the Appellate Court to ensure that the lapses in the judgment are corrected.  Even though these lapses were not pointed out by the Appellant, it is the duty of the Appellate Court to ensure that Justice is done.  The lapses include evidence on record which were not considered and evidence which were wrongly considered.  The material evidence which were not considered by the trial Court includes the author of the letter of interdiction and its legal effect.  See the case of Djin v. Musa Baaku [2007 – 2008] 1SCGLR 686.  If the trial High Court Judge had considered that he would have concluded that the letter of interdiction was a nullity and the letter dismissing the Plaintiff could take effect from the date it was written and not retrospective from the date the interdiction letter was written because in the eyes of the law, the letter of interdiction was non est and could not have been used as a reference point by the defendant.  I will therefore dismiss ground (iv) of the appeal as without merits.

The Defendant by his ground (v) of the appeal is asserting that “the Plaintiff failed to lead any evidence whatsoever on his salary or in support of his claiming for damages.  The decision by the trial High Court Judge to award the Plaintiff payment of his monthly salary of the current rate for two years in general damages was totally unjustified and without any basis in law”.  The ground of appeal falls flat in the ratio enunciated by this Court in the case of Ghana Highway Authority v. Mensah [1997 – 98] GLR 693.  The Court has held thus “Although the respondent did not establish even his monthly salary for the Court to calculate the deserving damage, there was no doubt that by depriving the respondent of his job and salary as well as his end of service benefits, the appellant caused the respondent to suffer substantial injury and consequently that the Respondent was entitled to be paid substantial damages not merely nominal damages”.

I will therefore dismiss ground (v) of the appeal as without merits as the Court could award general damages without knowing the salary payable to the Plaintiff who has been unlawfully dismissed by his employer, the defendant herein.

I will discuss the ground (vi) of appeal which is the omnibus ground.  Plaintiff was dismissed under Article 13D of the conditions of service for senior staff.  The defendant dismissed the Plaintiff for misconduct and negligence resulting in financial loss to the defendant company.  I am satisfied that the defendant was not given a hearing before he was dismissed and the dismissal is unjustified or unlawful.

I am of the opinion that the Plaintiff was dismissed on 8th March 2001 and not the date he was acquitted by the Circuit Court on 21st July, 2005.  The date of dismissal has nothing to do with the date that he was acquitted.  The fact that the Plaintiff was being tried did not make him an employee of the company as he had already been served with the dismissal letter. It is my judgment that the Plaintiff was unlawfully dismissed by the defendant on 8th March 2001.  

The Common Law position is that an employee who is wrongfully dismissed is entitled to compensation and the compensation is based on the employee’s current salary and other conditions of service for a reasonable time within which the employee is expected to find an alternative employment where there is any contractual agreement or contrary statute then, the employee would be paid in accordance with the provision of the contract or statute. This legal position was well espoused by the Supreme Court in the case of Ashun v. Accra Brewery Ltd. [2009] SCGLR 81.  The Court speaking through Dr. Date-Bah JSC. At page 84 held thus: “Nevertheless, the duty of mitigation of damages for wrongful dismissal devolves on an employee.  Accordingly, he or she has the duty to take steps to find alternative employment.  In principle then, in the absence of any contrary statutory or contractual provision, the measure of damages for wrongful termination of employment under the common law of Ghana is compensation, based on the employee’s current salary and other conditions of service, for a reasonable period within which the aggrieved party is expected to find alternative employment”.

In the instant case, the Plaintiff is being awarded his salary from 27th October, 1997 to 8th March 2001 because the interdiction was a nullity; he was an employee de jure and de facto.

The Plaintiff is entitled to loss of salaries and all other entitlements and benefits from the date the void interdiction was written on 27th October, 1997, to the date the letter of dismissal was written on 8th March 2001.  He is also entitled to eighteen (18) months salary as damages for wrongful dismissal as at the date of his dismissal.

In the case of Nartey Tokoli and others v. Volta Aluminum Co. Ltd. (No. 2) [1989 - 90] 2 GLR 341 the Supreme Court in holding 2 in discussing loss of means and an award of general damages in the case of wrong dismissal held thus: “the measure of damages for wrongful dismissal from employment was not confined to only loss of wages and salary but in addition the employee was to receive his entitlements under the contract of employment.  The Plaintiff were therefore entitled to receive salaries from the dates they ceased to receive them to the dates of their respective de facto termination including an additional twelve months salary (as awarded by the High Court in the exercise of its discretion) as damages for wrongful dismissal as at the respective dates of de facto termination of their employment”.

I will set aside the reliefs granted by the trial High Court Judge because (1) the general damages for two (2) years monthly salary is excessive as it will defeat the import of general damages.  The law is that the normal function of damages for breach of contract is compensatory.  It is neither to punish the defaulting party nor to confer a windfall on the victorious party.  See Halbury’s Law of England Volume 12(1) paragraph 941.  I am of the opinion that eighteen months salary as general damages is fair in the circumstances. In the circumstances the plaintiff was then being prosecuted by the police. And it would have been difficult if not impossible for him to look for alternative employment. It was in 2005 when the prosecution ended in his favour and that justifies the award of eighteen months salary as compensation.  See the case Nartey Tokoli and Others v. Valco (Supra).

I will set aside the judgment because it was given contrary to the evidence on record and substitute same with:

1.   A declaration that the interdiction of the Plaintiff by the defendant from 27th October 1997 is a nullity.
2.   A declaration that the deletion of the Plaintiff’s name from the defendant’s payroll is unlawful.
3.   An order for the recovery of all the salaries and emoluments due and payable to the Plaintiff from 27th October 1997 to 8th March 2001 and the interest at the simple interest rate to the date of judgment .
4.   Eighteen (18) months salary as general damages. 

I will uphold ground (vi) of the appeal in part. The appeal succeeds in part.

DENNIS D. ADJEI

JUSTICE OF THE COURT OF APPEAL

MARFUL–SAU, JA: - This appeal is taken against the judgment of the High Court Accra, dated the 18th December 2009. In this appeal the plaintiff/respondent will be referred to as the respondent and the defendant company/ appellant shall be known as the appellant. By the respondent’s writ of summons filed on the 22nd May 1998 the following reliefs were sought:

1. A declaration that the interdiction of the plaintiff by the defendant without pay with effect from 29th October 1997 is unlawful.
2. A declaration that the removal of the plaintiff name from the defendant’s payroll with effect from 27th October 1997 amounts to unlawful dismissal.
3. An order for the recovery of all the emoluments due and payable to the plaintiff from October 1997 to date of judgment on the salary scale applicable to the plaintiff.
4. Interest on (c) with effect from October 1997 to date of payment. 
5. General damages for unlawful interdiction and wrongful dismissal.

At the end of the trial the High Court in its judgment at pages 186-188 of the record held that the interdiction and dismissal of the respondent were unlawful and accordingly granted the respondent all the reliefs endorsed on the writ of summons. The trial court ordered that the respondent be paid the current monthly salary for two years as general damages and awarded cost of GHC4,000.00 against the appellant. This costs according to counsel for appellant was paid as a condition for the grant of stay of execution. It is against this judgment that the appellant lodged this appeal under seven main grounds as follows:

1. In the face of the evidence provided by the defendant particularly in Exhibits 3,4,5,6 and 7 which clearly established that the Plaintiff was guilty of massive fraud and embezzlement resulting in huge financial losses to his employers the learned trial judge erred in finding that the allegations made by the defendant against the Plaintiff had not been proved.
2. Given the state of the law that proven misconduct by an employee against the interest of his employer justified summary dismissal even without a hearing the learned trial judge fell into grave error when he concluded that the failure by the defendant to confront the plaintiff with the allegations made against him rendered the dismissal unlawful.
3. The learned trial judge erred in granting the Plaintiffs relief (a) i.e. “A declaration that the interdiction of the plaintiff by the defendant without pay with effect from 27th October 1997 is unlawful” when Article 13 (A) of Exhibit 1 the Defendant Company’s Senior staff Conditions of Service tendered in evidence clearly stipulated that an employee could be interdicted without pay while criminal proceedings were pending against him.
4. Having found that the Plaintiff was effectively dismissed from the employment of the Defendant Company on 27th October 1997 the decision by the learned trial judge to award the Plaintiff payment of his monthly salary at the current rate for two years in general damages was totally unjustified and without basis in law.
5. The judgment of the court was totally against the weight of the evidence adduced at trial.
6. The cost awarded against the defendant was unjustified and excessive.
7. Further and additional grounds of appeal will be filed upon receipt of the record of proceedings.

 The brief facts of the case are that the respondent was interdicted without pay effective 27th October 1997 through a letter of same date. The interdiction according to the letter was as a result of certain anomalies uncovered in the company’s account at the appellant’s Engineering Complex. From the record it was this letter which triggered the writ in the High Court on 22nd May 1998. The interdiction letter was tendered in the trial as Exhibit A and it is at page 194 to 195 of the record. Then during the pendency of the suit the appellant issued another letter summarily dismissing the respondent for embezzlement of company funds. This letter written on 8th March 2001 was to take retrospective effect from 27th October 1997, the date the respondent was interdicted. The said dismissal letter was tendered as Exhibit D and it is at page 247 of the record of appeal.

It is trite law as held in the case of TUAKWA v. BOSOM (2001-2002) SCGLR 61, that an appeal is by way of rehearing. An appellate court is thus vested with the right to examine the record of appeal, re-evaluate the evidence and assess the soundness in law of the judgment under appeal. In this appeal both parties are ad idem that their employment relationship was regulated by the Condition of Service for Senior Staff dated August 1997. This was tendered in evidence as Exhibit 1 and is at page 244 to 263 of the record. The relevant provisions regarding this appeal is Article 13(A), which is titled ‘SUSPENSION/INTERDICTION’; and Article 13(D), titled ‘SUMMARY DISMISSAL.’

13 (A) provides thus:-

           (1)In any case where it is considered that the interest of the company requires that an employee should cease forthwith to perform the duties of his post, such employee may be suspended/ interdicted from duty on half pay or without pay, while proceedings which may result in his dismissal are being taken or about to be taken, or while criminal proceedings (other than for a motor offence or an offence not involving any moral turpitude, fraud or dishonesty) are being instituted against him.

If the disciplinary proceedings do not result in the dismissal of the employee the whole of any salary withheld from him shall be paid to him when the final decision is made. All internal investigations are to be conducted expeditiously.

        (2) The power of suspending an employee shall vest in the Managing Director provided that in exceptional circumstances where any delay might be detrimental to the interest of the company, such power may be exercised by the Director of Finance and Administration. An employee shall not be suspended without having first been given a fair chance to state his case.

The above provision makes clear the following:-

a) that an employee may be suspended with half pay or without pay.

b) that the employee before being suspended either with half pay or without pay must be given a fair chance to state his case.

c) that the interdiction or suspension ought to be under the authority of the Managing Director or in exceptional circumstances the Director of Finance and Administration. In other words the contract of employment restricted the power to interdict to two specific officers, consequently if any other officer not named interdicts that act would be a violation of the contract and same will be void and of no effect.

The record of this appeal clearly revealed that the letter that purported to interdict the respondent was issued and signed by one Yaw Assah-Sam described as the General Manager, Resource and Planning. This officer has no power under the contract to interdict. The General Manager, Resource and Planning having no such authority to interdict, whatever was done by him was a nullity. The interdiction of the respondent was thus void and on this point alone this appeal ought to be dismissed, especially so when the subsequent dismissal letter was made to take effect from the date of the void interdiction letter. Having held that the interdiction was void, what then becomes of the summary dismissal? I shall answer this question in the course of this judgment, but now I want to address the point that, the interdiction would still have been unlawful, since the respondent was not given a hearing to state his side of the case, as provided under article 13 (A) of the Conditions of Service.

 The contract between the parties in this appeal was regulated by the Condition of Service for the Senior Staff dated August 1997 and  article 13 (A) thereof, stipulates that before an employee was interdicted he must first be given an opportunity to state his case; in other words, while the  employer in this case the appellant had the right to interdict or suspend an employee, the employee, in this case the respondent was entitled to a hearing in tune with the cardinal principle of natural justice. There is no dispute about this provision in the Conditions of Service and once that was the contract the appellant was obliged to observe same. Now, was this provision observed by appellant before interdicting the respondent from its employment? The answer from the record is in the negative since appellant own evidence supported the respondent claim that he was not heard or allowed to state his case before he was issued with the void interdiction letter.

In this case the respondent was purportedly interdicted as a result of an Audit Investigations conducted against him at the instance of the appellant. At the trial the appellant was represented by one Anthony Kwame Boamah Mensah, the Branch Manager of appellant at Adenta. His evidence appears at page 126 and ends at page 139 of the record of appeal. At page 135 of the record appellant’s representative under cross- examination testified as follows:-

Q. During the period of the audit you were present with Mr.Prah?

A. Yes

Q. But the plaintiff was never called to appear before Mr. Prah during the whole of the auditing?

A. I should think so because I never witnessed a meeting between them.

Q. And to the best of your knowledge and from your records, the plaintiff was never given a written query to answer before he was bundled to the Police/

A. Yes, please.

Q.  And you will agree with me that it was only at the Police Station that he was shown a copy of Prah’s report by the Police and not by the defendant company?

A. I don’t know by what means he saw a copy because I also never saw a copy.

Q. I am putting to you that the defendant company through Prah who conducted the audit investigation never gave a copy of the audit report to the plaintiff?

A. I accept it.

Clearly, from the appellant’s own evidence the respondent was not heard by the Audit Investigation Team, neither was he furnished with a copy of the audit report for his comments before he was handed over to the Police for prosecution before the Circuit Court.  Having clearly violated the respondent’s right to be heard the interdiction, even if it was done with authority, would have been unlawful. In the case of AWUKU-SAO v. GHANA SUPPLY CO. LTD. (2009) SCGLR 710, the Supreme Court held among others that in employment dispute even where there were clearly no specific disciplinary procedures, the employer was under a duty to act fairly and to comply with the rules of natural justice; the employee must be given a proper opportunity of making out his case.

 Now, what was the effect of the dismissal letter dated the 8th 0f March 2001, which was given retrospective effect from the date of the interdiction that is 27th October 1997?  Under article 13 (D) of the conditions of service, the appellant had the right to dismiss an employee, but the appellant had no power under the said article to dismiss an employee with retrospective effect. This alone made the dismissal wrongful. Article 13 (D) provides as follows:-

‘’1. The company reserves the right to dismiss summarily, an employee for misconduct, dishonesty or neglect of duty, without notice or salary in lieu of notice.

2. For the purpose of (1) above, an act done without reasonable excuse by an employee which amounts to a failure to perform in proper manner any duty assigned to him, or which is otherwise prejudicial to the efficient conduct of the business of the Company or tends to bring the company into disrepute shall constitute misconduct.

3. Conviction in a court of law of an employee for any offence that brings the company into disrepute shall result in the summary dismissal of the employee.’’

The respondent summary dismissal letter dated the 8th March, 2001 and headed’’ Embezzlement of Company Funds- Summary Dismissal’’ is at page 243 of the record and paragraph 2 of the said letter reads as follows:-

‘'Management has decided to dismiss you summarily from the services of the company for misconduct and negligence resulting in financial loss to the company.’’

From the dismissal letter it is clear that the basis of the dismissal is the findings of the Audit Investigations Team, which also formed the basis of the respondent’s criminal prosecution. The respondent from the letter was not being dismissed simply for misconduct but for a misconduct resulting in financial loss to the company. Now having failed to secure a conviction for the offences preferred against the respondent leading to his acquittal, could it be said that the appellant had proven case of misconduct against the respondent? The question is was the summary dismissal justified in law in view of the reason stated in the letter? I find the summary dismissal unlawful especially so when the respondent was not given a hearing and also that the criminal charges against him could not be proved. The dismissal was wrongful and the consequence is that respondent is entitled to compensation.

 Having found the interdiction void and the dismissal unlawful was the measure of damages awarded by the trial court justified in law? In other words what measure of damages would the respondent be entitled? It is trite learning that when an employee is wrongfully interdicted or dismissed his remedy lies in damages for the wrong suffered. In the case of ASHUN v. ACCRA BREWERY LTD (2009) SCGLR 81, the Supreme Court in its holding (2) delivered as follows:-

‘’an employee who has been wrongfully dismissed, had the duty of mitigation of damages. Accordingly, the employee had the duty to take steps to find alternative employment. In principle, in the absence of any contrary statutory or contractual provision, the measure of damages for wrongful termination of employment under the common law of Ghana was compensation based on the employee’s current salary and other conditions of service for a reasonable period within which the aggrieved party was expected to find alternative employment. In other words the measure of damages was the quantum of what the aggrieved party would have earned from his employment during such reasonable period, determinable by the court, after which the employee should have found alternative employment. That quantum was subject to the duty of mitigation of damages.’’

See also the case of Nartey Tokoli v. Volta Aluminium Company, No. 2 (1989- 90) 2 GLR 341.

In its judgment the trial court awarded the respondent the recovery of all the emoluments due and payable to the respondent from October 1997 to date of judgment on the salary scale applicable to the respondent. This was relief(c) endorsed on the writ. In addition the trial court awarded general damages of respondent’s two years salary. The appellant in this appeal has argued that the above awards are contrary to law and must be set aside by this court. Counsel for respondent on the other hand argues that under article 13(A) of the condition of service the respondent was entitled to be paid all his emoluments at the end of the disciplinary proceedings. That part of article 13(A) relied on by the respondents reads as follows:-

‘’ ......if the disciplinary proceedings do not result in the dismissal of the employee the whole of any salary withheld from him shall be paid to him when the final decision is made.’’

 My understanding of article 13 (A) read as a whole is that when an employee is interdicted but eventually exonerated through disciplinary proceedings any salary withheld as a result of the disciplinary action ought to be restored and paid to him. In this case, however, the disciplinary proceedings against the respondent resulted in his dismissal, though unlawful, so I consider that provision in article 13(A), inapplicable in the circumstances of the case.

The principle in the case of Ashun v. Accra Brewery Ltd (supra), is thus applicable in determining the measure of damages to be awarded to the respondent for the wrongful termination of his employment as a result of the unlawful interdiction. The award in this case however would not be subject wholly to the respondent’s mitigation of the damages as held by the Supreme Court. In this case the respondent was not only interdicted and later dismissed but that he was also subjected to criminal prosecution in the Circuit Court, where he was eventually acquitted. Naturally, it would have been difficult for such an employee whose prosecution from the record of appeal was publicised to have secured an alternative employment to mitigate his damages, during the pendency of the criminal trial.

On this point, I absolutely agree with Counsel for respondent when he submitted in his statement of case as follows:-‘’ the civil proceedings were resumed in 2006. It will not be difficult for anyone to agree that while the criminal proceedings which started in 1997 pended in court the plaintiff/ respondent could hardly obtain alternative employment in the light of the wide publicity the serious charges of massive fraud and embezzlement received.’’ 

What then is the respondent entitled to as damages? The law is that once an employee’s employment is brought to an unlawful end he is to be compensated in damages but the principle is that each case ought to be considered on its own merit and circumstances. In this appeal the void interdiction purportedly took place in October 1997 and the respondent commenced this action in May 1998 obtaining judgment on the 18th December 2009. The result was that for 12 years the respondent could not work due to the unlawful conduct of the appellant. In between these 12 years the respondent was subjected to a criminal trial at the end of which he was acquitted.

I have in this judgment referred to the Supreme Court decision in Ashun v. Accra Brewery Ltd (supra) which held that the damages to be awarded to an employee whose appointment was wrongfully terminated was the quantum of what the aggrieved employee would have earned from his employment during such reasonable period, determinable by the court, after which the employee should have found alternative employment. In this case, as already observed the respondent was subjected to a criminal trial which started in 2002, but was acquitted on the 21st July 2005 by the Circuit Court. It is thus obvious that for the period up to 2005, the respondent could not have secured an alternative employment to mitigate his damages. 

Upon his acquittal however, there was no reason why the respondent could not have secured an alternative employment in order to mitigate his damages; so that between 2005 when he was acquitted in the criminal trial and year 2009 when judgment was entered by the trial High Court in this case the respondent ought to have been able to secure an alternative employment. 

In view of the circumstances and findings above, I am of the opinion that the ends of justice will be served if the respondent is awarded the following:-

(1)the salaries and all other emoluments that he would have been entitled if his employment was not brought to an unlawful end on the 27th October 1997. The respondent should be paid this entitlement from October 1997 to March 2001, when he was summarily dismissed though unlawful. The entitlement to be paid to the respondent shall include all increments that would have been due the respondent if he was at post for the period but for the void interdiction. 

(2) the respondent shall also be awarded general damages amounting to the equivalent of his basic salary for 18 months using the highest basic salary between the years 1997 to 2005. In awarding general damages of 18 months’ salary, I have observed from decided cases on the subject that normally the Supreme Court returns an award of one year’s salary as damages on grounds that the employee had the opportunity to mitigate the damages. In this case, In this case I think the award of 18 months’ salary in damages is justified, because of the reasons assigned earlier that the respondent for a stated period could not have secured an alternative employment to mitigate the damages.

(3)the entitlement awarded under (1) above shall attract simple interest at the prevailing rate as at today from the 27th October 1997 to the 18th December,2009 the date the High Court entered judgment for the respondent. 

In conclusion, the appeal succeeds in part only. 

                                  

                

      MARFUL-SAU

  (JUSTICE OF THE COURT OF APPEAL)

SENYO DZAMEFE, J.A.                                                             

I agree      

SENYO DZAMEFE

(JUSTICE OF THE COURT OF APPEAL)

COUNSEL

GAISE, ZWENNES, HUGHES&CO. FOR APPELLANT

JOE ADDAE-ABOAGYE FOR THE RESPONDENT