KENNETH DEGBOR V. ATLANTIC PORT SERVICES

JUDGMENT

DEKYEM, J.

Plaintiff was an employee of Defendant, the latter being a company registered  under the laws of Ghana. Plaintiff’s case is that following an allegation of wrong  doing leveled against him, he was interdicted for about four (4) years without pay.  Plaintiff contends that he lodged a petition at the National Labour Commission;  which petition compelled Defendant to recall him from interdiction and reinstate  him on grounds that the allegations leveled against him were unfounded. Plaintiff  averred that by letter dated 11th September, 2012, he gave formal notice of his  decision to Defendant to proceed on voluntary retirement effective 24th December, 2012. Plaintiff contended that by letter dated 26th November, 2012, Defendant purported to offer him retirement package which bore no relationship  to his entitlements under the conditions of service. Plaintiff contended he was  entitled to GHS120,994.77, however, Defendant paid him GHS42,524.19 leaving a  balance of GHS78,470.68. Wherefore Plaintiff claims as per the Writ of Summons the following reliefs: 

i. An order for the payment of the sum of GHS327,486.47 being the  computed balance outstanding as Plaintiff’s arrears of unpaid salaries  and allowances/voluntary retirement packages during the period of  Plaintiff’s wrongful interdiction. 

ii. Interest on the said GHS327,486.47 from the date of Plaintiff’s  unconditional reinstatement i.e. the 26th day of September, 2011  until the date of final payment at the current commercial bank  lending rate. 

iii. Damages for wrongful interdiction. 

iv. An order setting aside the purported re-imposition of Plaintiff’s  earlier wrongful interdiction. 

v. A declaration that the Plaintiff lawfully and effectively retired from  Defendant’s employment upon attainment of age 55 on the 24th day  of December, 2012. 

vi. An order for the payment forthwith of all retirement benefits and  entitlements whatsoever due to the Plaintiff as at the date of his  retirement pursuant to the Service Conditions of Management.

vii. Interest on the said entitlements at the current commercial bank  lending rate from the date of retirement i.e. 24th December, 2012 to  the date of final payment. 

viii. Costs. 

ix. Any other relief found due. 

Defendant denies Plaintiff’s claim and contends that, following the allegation  leveled against Plaintiff, the latter was interdicted. Subsequently, a panel was  constituted by the Board of Directors of Defendants to investigate the matter but  Plaintiff failed upon several invitations to appear before the panel. Defendant  contends that, it never recalled Plaintiff for reinstatement and the purported  letter of recall was written by Plaintiff himself. Defendant however, concedes that  an amount of money was paid Plaintiff to alleviate him from certain financial  constraints. Defendant also averred that, it wrote to Plaintiff informing him that,  Defendant Company had never reinstated him as he had not appeared before the  constituted committee to exonerate himself. At the directions stage the following  issues were settled for trial: 

i. Whether the Defendant wrongfully interdicted the Plaintiff for 4 years. 

ii. Whether the Defendant, per its managing director, subsequently wrote  unconditionally reinstating Plaintiff. 

iii. Whether the Plaintiff’s entitlements for the period of interdiction totaled  GHS120,994.77 out of which only GHS42,524.19 was paid. 

iv. Whether the Defendant validated its acceptance of Plaintiff’s notice of  intention to go on voluntary retirement by entering into negotiation  with him and his lawyer over the said entitlements.

v. Whether the Defendant’s subsequent attempt to reinstate the  investigations into Plaintiff’s alleged malfeasance is an afterthought. 

vi. Whether the Plaintiff is entitled to any of the reliefs claimed. vii.Any other issue(s) arising from the pleadings. 

It is the position of law that, a party in a civil case has the burden of proof and  would fail if he fails to discharge this burden. This principle of law as captured in  sections 10, 11, 12 and 14 of the Evience Act, 1975 (NRCD 323) was applied by the  Supreme Court in GIHOC v. Hanna Assi [2005-2006] SCGLR 458 at 485, where  Sophia Akuffo JSC held as follows: 

“10. (1) For the purposes of this Decree, the burden of persuasion means  the obligation of a party to establish a requisite degree of belief concerning  a fact in the mind of the tribunal of fact or the court. 

(2) The burden of persuasion may require a party to raise a reasonable  doubt concerning the existence or non-existence of a fact or that he  establish the existence or non-existence of a fact by a preponderance of the  probabilities or by proof beyond a reasonable doubt. 

11. (1) For the purposes of this Decree, the burden of producing evidence  means the obligation of a party to introduce sufficient evidence to avoid a  ruling against him on the issue. 

(4) In other circumstances [i.e. civil matters] the burden of producing  evidence requires a party to produce sufficient evidence so that on all the  evidence a reasonable mind could conclude that the existence of the fact  was more probable than its non-existence. 

12. (1) Except as otherwise provided by law, the burden of persuasion  requires proof by a preponderance of probabilities  

(2) ‘Preponderance of the probabilities’ means that degree of certainty of  belief in the mind of the tribunal of fact or the court by which it is convinced  that the existence of a fact is more probable than its non-existence. 

14. Except as otherwise provided by law, unless and until it is shifted a  party has the burden of persuasion as to each fact the existence or non existence of which is essential to the claim or defence he is asserting. 

“……. Since the enactment of NRCD 323, therefore, except otherwise  specified by statute, the standard of proof (the burden of persuasion) in all  civil matters is by a preponderance of the probabilities based on a  determination of whether or not the party with the burden of producing  evience on the issue has, on all the evidence, satisfied the judge of the  probable existence of the fact in issue: see Odametey v. Clocuh [1989-90] 1  GLR 14, SC; Odonkor v. Amartei [1992-93] GBR 59 and Tuakwa v. Bosom  [2001-2002] SCGLR 62. Hence, by virtue of the provisions of NRCD 323, in all  civil cases, judgment might be given in favour of a party on the  preponderance of the probabilities ……” 

Parties herein adopted their witness statements as their evidence in chief and  were cross examined. Plaintiff alleged that on 14th January, 2008, whilst on annual  leave, he was wrongfully interdicted by Defendant on a totally false allegation of  malfeasance which was spurious and wholly unfounded. The reasons for Plaintiff’s  assertion is that, per letter dated 14th November, 2007, Defendant indicated to him that, there was an anomaly in his salary hence he was going to be paid fifty  per centum (50%) of his salary until the matter was fully investigated. It is  Plaintiff’s case that he was subsequently paid the 50% salary for October and  November, 2007 and no more till date of Plaintiff’s witness statement dated 15th July, 2015. The issue whether the Defendant wrongfully interdicted the Plaintiff  for 4 years thus falls for determination. 

In the absence of any other terms of employment placed before the court, the  Service Conditions of Management Staff of Atlantic Port Services Limited (APS),  (exhibit A) subject to any statutory provisions for the time being regulating  employment, governs the employment relationship of parties herein. Clause  17.10 of exhibit A provides for suspension during investigation as follows: 

i. When a staff is suspected of having committed an offence which might  justify termination or summary dismissal, the Company shall suspend the  staff from duty while further investigations are carried out by a 4-man  committee represented by the Management and the Directors with the  Chairman appointed by the Directors, shall be given the opportunity to  appear before the committee to defend himself. Copies of the report of the  committee’s findings together with the Board of Directors’ decision shall be  forwarded to the Management prior to any action being taken by the Board  of Directors. 

ii. During the period of suspension from duty, the staff shall be entitled to full  pay for one (1) month and given reason for suspension within seven (7)  working days. Thereafter if the suspension continues, he/she shall be paid  two-thirds (2/3) of his/her pay monthly until the matter is finally disposed. 

Per the conditions of service, an employee is suspended upon suspicion of having  committed an offence justifying termination or summary dismissal to enable the 4-man committee to investigate the matter. As part of the investigation, the  suspected employee is required to be given the opportunity to defend  him/herself. During this period of suspension pending the investigation, the  suspected employee shall be entitled to an initial one month salary and thereafter  two thirds of his/her salary until the disposal of the matter. The cooperation of  both parties is therefore envisaged in the provision on suspension in the condition  of service. Per documentary evidence placed before the court, Plaintiff had by  letter dated 5th November, 2007 been granted annual leave ending 23rd  December, 2007. During this period, Defendant wrote exhibit E as follows: 

“November 14, 2007 

RE: OCTOBER 2007 SALARY 

I have noticed an anomaly in your salary which is being investigated. 

In view of this, 50% of your salary would be paid to you and the other  portion paid pending the outcome of the investigation. 

G. K. A. Biney 

Managing Director” 

The content of exhibit E did not show that Plaintiff was being suspected of any  wrongdoing. It simply stated that an anomaly had been detected and same was  being investigated. In the interim, Plaintiff was advised of half salary payment  pending the outcome of the investigation. The letter did not require Plaintiff to  proceed on suspension whilst Defendant investigates the matter. Plaintiff being  dissatisfied with Defendant’s conduct of nonpayment of bonus and salary for  December, 2007 and 50% balance of salaries for the months of October and November, 2007, petitioned the National Labour Commission. Whilst the petition  was pending without evidence that Defendant had been served the petition, Defendant subsequent to exhibit E, wrote exhibit F, to interdict Plaintiff as  follows: 

“January 14, 2008…. 

LETTER OF INTERDICTION 

Reference to your letter dated December 31, 2007 reminding us of your  October 2007 salary, you are hereby interdicted pending further  investigation. 

Your interdiction is based on the following: 

1. Unauthorized and improper salary increments 

2. Unlawful and improper manipulation of the refund of expenses  process for personal benefit  

3. Unlawful and improper manipulation of leave benefits procedures for  personal benefit and the benefit of other members of staff 

4. Unlawful and improper manipulation of the Protocol/Public Relation  procedures 

5. Unauthorized and unlawful amendment of Management Staffs  Conditions of Service for personal benefit. 

6. Unlawful utilization of company resources and property for personal  benefits. 

You will be given opportunity to defend yourself against the charges leveled.  You are to hand over all company’s property in your possession to the MD  by January 18, 2008. 

G. K. A. Biney

Managing Director” 

Exhibit F, interdicting Plaintiff for offences stated therein, triggers clause 17.10 of  the conditions of service which required that Plaintiff is paid his full salary for the  first month and two thirds subsequently pending the outcome of the  investigation. Exhibit F was silent on whether it was to comply with the provisions  of clause 17.10 of the conditions of service or not. By interdicting Plaintiff and in  accordance with clause 17.10 of the conditions of service, Plaintiff was entitled to  his full salary in the first month of the interdiction and subsequently to two thirds  of his salary until the matter was disposed of. 

By letter dated 24th January, 2008, exhibit G, Plaintiff’s lawyer wrote to Defendant  demanding full compliance with clause 17.10 of exhibit A. The basis of the 50%  salaries for October and November, 2007 is not supported by the employment  contract, exhibit A. Probably following exhibit G and Defendant’s own letter dated  11th December, 2007 from E. K Biney (Director) to Chairman of Defendant,  demanding compliance with clause 17.10 of the conditions of service, Defendant writes exhibit J2, stating that: “In the interim, you will remain on 2/3 of your salary  as per your terms and conditions of employment. Any deficits in salary for the last  three (3) months will be rectified pending your hearing and subject to the return of  company property in your possession.” By exhibit J2, therefore, Defendant sought  to and rectified the breach by compliance with clause 17.10. By exhibit J2  therefore, Plaintiff was to be on two thirds of his salary whilst on interdiction in  accordance with the employment contract. Having so rectified the breach, it  cannot be said that the interdiction was unlawful. 

The next issue is whether the Defendant, per its managing director, subsequently  wrote unconditionally reinstating Plaintiff. Plaintiff averred that Defendant  reinstated him. Although per letter dated 26th September, 2011, the content of  which suggests that the allegations made against Plaintiff were found to be  without substance, hence a recall of Plaintiff to duty with immediate effect,  Defendant denied that it reinstated Plaintiff. The said recall letter, exhibit K reads  in part as follows: 

“26th September, 2011 

MR KEN DEGBOR 

RECALL TO DUTY 

We refer to Management letter dated 14th January, 2008 which you were  interdicted. 

We are happy to inform you that, the said allegations of wrong doings have  been found to be without substance. 

You are therefore being recalled to resume duty as the Administrative and  Human Resources Manager with immediate effect. 

By copy of this letter, the Accounts Department is to compute and pay you  all salaries, allowances due you in accordance with the Conditions of Service  for Management staff 

(sgd) Modesto E. K. Biney (Managing Director" 

DW testified that “there has not been any meeting by the defendant’s Board of  Directors where minutes were taken to reinstate the plaintiff…..whoever is  purported to have written a letter recalling the Plaintiff to work unconditionally  did so without the consent and approval of the Board of Directors of the  defendant company and for that matter had no capacity to have written that  alleged letter recalling the plaintiff to work with the defendant company.” The  issue of capacity thus falls for determination. Did the author of exhibit K, Modesto  Biney described as the Managing Director have capacity to recall Plaintiff in the  manner in which he did and did exhibit K bind Defendant? 

Plaintiff’s Counsel argued that by the combined effect of sections 137, 138 and  139 of Companies Code, 1963 (Act 179), the Managing Director of a company is  deemed or presumed to have all the powers of its board and as its agent, his acts,  where they are in excess of his actual authority will be binding on the company,  unless there is evidence that the party dealing with the Managing Director knew  as a matter of fact that the Managing Director did not have the actual authority. That it is the correct position of the law. The relevant provisions of Act 179 are  stated below: 

Section 139—Acts of the Company. 

Any act of the members in general meeting, the board of directors, or a  managing director while carrying on in the usual way the business of the  company shall be treated as the act of the company itself; and accordingly  the company shall be criminally and civilly liable therefor to the same extent  as if it were a natural person: 

Provided that, 

(a) the company shall not incur civil liability to any person if that person  had actual knowledge at the time of the transaction in question that the general meeting, board of directors, or managing director, as the case may  be, had no power to act in the matter or had acted in an irregular manner or if, having regard to his position with, or relationship to, the company,  he ought to have known of the absence of power or of the irregularity; 

(b) if in fact a business is being carried on by the company, the company  shall not escape liability for acts undertaken in connection therewith merely  because the business in question was not among the businesses authorised  by the company's Regulations. 

Section 140—Acts of Officers or Agents. 

(1) Except as provided in section 139 of this Code, the acts of any officer or  agent of a company shall not be deemed to be acts of the company, unless, 

(a) the company, acting through its members in general meeting, board of  directors, or managing director, shall have expressly or impliedly authorised  such officer or agent to act in the matter; or 

(b) the company, acting as aforesaid, shall have represented the officer or  agent as having its authority to act in the matter, in which event the  company shall be civilly liable to any person who has entered into the  transaction in reliance on such representation, unless such person had  actual knowledge that the officer or agent had no authority or unless,  having regard to his position with, or relationship to, the company, he  ought to have known of such absence of authority. 

(2) The authority of an officer or agent of the company may be conferred  prior to action by him or by subsequent ratification; and knowledge of  action by such officer or agent and acquiescence therein by all the members  for the time being entitled to attend general meetings of the company or by  the directors for the time being or by the managing director for the time  being, shall be equivalent to ratification by the members in general  meeting, board of directors, or managing director, as the case may be. 

(3) Nothing in this section shall derogate from the vicarious liability of a  company for the acts of its employees. (emphasis added).

The general principle is that, the principal in this case Defendant is bound by the  acts of its agent being the Managing Director unless it is shown that by virtue of  Plaintiff’s relationship with Defendant, he ought to have known such absence of  authority in respect of exhibit K. The evidence shows that at the date of Plaintiff’s  interdiction, he was the Administrative and Human Resource Manager and  expected to be conversant with the conditions of service being the employment  contract between parties herein. For ease of reference I will reproduce clause  7.10 (i) of the conditions of service: 

i. When a staff is suspected of having committed an offence which might  justify termination or summary dismissal, the Company shall suspend the  staff from duty while further investigations are carried out by a 4-man  committee represented by the Management and the Directors with the  Chairman appointed by the Directors, shall be given the opportunity to  appear before the committee to defend himself. Copies of the report of the  committee’s findings together with the Board of Directors’ decision shall be  forwarded to the Management prior to any action being taken by the Board  of Directors. (emphasis added). 

From the above, it is the Board of Directors who takes decisions following  disciplinary procedures and not the Managing Director. This Plaintiff ought to  know as it is not only a term of his contract with Defendant but also by virtue of  his position as Administrative and Human Resource Manager, he is better placed to know. The directors of a company may entrust to and confer upon a managing  director any of the powers exercisable by them upon such terms and with such  restrictions as they think fit, and either collaterally with, or to the exclusion of  their own powers and, subject to the terms of any agreement entered into in any  particular case, may from time to time revoke or vary all or any of such powers.

The mandate granted the Managing Director is therefore not absolute but with restrictions. Exhibit K, did not indicate that, the decision to recall Plaintiff was  pursuant to a decision taken by the Board of Directors in compliance with clause  17.10(i) of the conditions of service. It is therefore, in line when the Executive  Chairman wrote to the Managing Director of Defendant in exhibit 5 as follows: 

“6th November, 2012 

THE MANAGING DIRECTOR 

REINSTATEMENT OF MR. KENNETH DEGBOR 

A letter dated 26th September, 2011 and signed by you, re-instating Mr Ken  Degbor without recourse to the Board, has come to my notice. 

The Board finds this inappropriate, as a Committee of the Board charged  with investigating the case leading to the interdiction of Mr Ken DEGBOR  had not even commenced its work. 

Therefore you are to, kindly, rectify this anomaly immediately, by revoking  the re-instatement letter. 

Please be advised that if after the completion of the work of the Committee  of the Board, Mr Ken DEGBOR is exonerated, he would be re-instated. 

Please treat with utmost dispatch and kindly revert to the Board. Thank you. 

Yours faithfully, 

[sgd] 

VICTORIA M. E. HAJAR (MRS.) 

EXECUTIVE CHAIRMAN”

Exhibit 5 shows that the disciplinary committee had not even commenced its  work in accordance with the conditions of service to have reached a decision  grounding a recall.  

By letter dated 18th March, 2008, (exhibit J2), Plaintiff was informed that his  suspension would continue and also that he would remain on two thirds of his  salary per the conditions of service. By letter dated 18th April, 2008, (exhibit J1)  Plaintiff was given notice to appear before the disciplinary committee but he  failed to, on the ground as stated on his behalf by his Counsel in exhibit J3 that, he  had lodged a petition at the National Labour Commission on the same subject  matter and others, which in his opinion would be better resolved at the National  Labour Commission. Clause 17.10 of the conditions of service and indeed the  rules of natural justice required that, Plaintiff is heard in his defence before a  decision is taken to either exonerate him or apply the appropriate sanction. The  evidence placed before the court does not indicate that, Plaintiff availed himself  of the opportunity to defend himself in accordance with the employment  contract, by appearing before the 4-man disciplinary committee or by another  means. It is therefore not plain as to the basis of exhibit K exonerating Plaintiff  and the consequent recall to duty. The court will find and hold that exhibit K was  without basis and same was made without the requisite authority. 

Per exhibit 5, the Executive Chairman advised the Managing Director to take steps  to rectify the anomaly of the recall of Plaintiff. Prior to this advice, the Managing  Director had requested of Plaintiff to furnish him with all correspondence  between Plaintiff and the previous management of Defendant regarding his  interdiction. These requests were by letters dated 26th January, 2012 and 24th August, 2012. It was not clear why the Managing Director made the requests.  Plaintiff responded by letter dated 2nd February, 2012 that: “I have not been able  to trace the documents being requested for. I have misplaced those documents  and other vital ones when the family moved from our previous residence about 2  years ago….” Plaintiff again in response to the second request by letter dated 5th September, 2012 stated that: “As indicated in my previous response to you dated  2nd February, 2012, I have still not been able to trace the documents…” Yet in  another letter on the same subject matter, Plaintiff stated in letter dated 7th September, 2012 that: “As the Admin./HR Manager, I have also tried to look for  the documents from the company’s files but I have not been able to sight them. I  will continue searching for them and when found, I will make them available.” The  evidence does not suggest that Plaintiff ever furnished the Managing Director  with the said documents.  

The Managing Director found Plaintiff’s excuse for not providing the documents  requested untenable. The Managing Director claimed to have found Plaintiff had  lodged a complaint against Defendant at the National Labour Commission. The  court observed that, the Managing Director who interdicted Plaintiff is different  from the Managing Director who purported to recall him and requested of him to  produce the documents. The Managing Director thus wrote letter dated 8th November, 2012 (exhibit T), revoking Plaintiff’s recall to duty. Exhibit T reads in  part as follows: 

“RE: INTERDICTION 

I acknowledge your letter dated 07th September, 2012 in response to our  letter dated 24th August, 2012. However, I find the response untenable.

I have recently received information about some legal action you took  against the Company during your interdiction. 

You have however failed to disclose this critical information to me as the  Managing Director of the Company and this under the circumstances does  not show good faith. 

I regrettably have to, and with immediate effect, I do hereby revert to the  status quo of your interdiction effected by the previous handlers of the  Company until all the issues surrounding your interdiction have been  cleared. 

Thank you 

Yours faithfully 

MODESTO E. K. BINEY [SGD] 

MANAGING DIRECTOR” 

From the above, the court finds that, the Managing Director revoked the recall and placed Plaintiff in the status quo ante of interdiction to enable all issues  surrounding the interdiction to be cleared. It appears the reason for the  revocation of the recall of Plaintiff was his failure to disclose to the Managing  Director of a legal action he took against Defendant. The court is of the opinion  that the legal action being referred to is the petition Plaintiff lodged at the  National Labour Commission which remained unresolved at the date of the  purported recall. The petition pending without a decision meant the issues between parties had not been resolved fully, the reasons for the interdiction thus  existed and a recall couldn’t have been due.

Having revoked the recall of Plaintiff and the intention of Defendant to clear all  issues surrounding the interdiction, the issue whether the Defendant’s  subsequent attempt to reinstate the investigations into Plaintiff’s alleged  malfeasance is an afterthought, falls for determination. Plaintiff averred that, per  letter dated 11th September, 2012 (exhibit S), he notified Defendant that, pursuant to the provisions of the conditions of service, he would retire voluntarily  at age fifty-five (55) effective 24th December, 2012. In line therewith, Plaintiff  contended that, he called for his retirement benefits to be worked out and same  paid to him before the effective date of his retirement but as if in a cynical bid to  avoid payment of the balance of his remuneration for the period of his wrongful  interdiction without pay; his retirement benefits and other allowances, Defendant  suddenly wrote exhibit T, purporting to revoke his recall to duty. 

The law has always been that a person who makes an assertion which is denied by  his opponent has the burden to establish that his assertion is true. He does not  discharge this burden unless he leads admissible and credible evidence from  which the fact he asserts can properly and safely be inferred. The evidence by  way of chronology of events show that following the recall of Plaintiff, Defendant  by letters dated 26th January, 2012 (exhibit M) and 24th August, 2012 (exhibit R1)  requested of Plaintiff to provide all correspondence between him and the former  management of Defendant regarding his interdiction. These requests were not  honoured as Plaintiff stated he had misplaced them in the process of moving  house. An excuse Defendant found untenable. In between exhibits M and R1, by  letter dated 26th June, 2012 (exhibit 4), Defendant invited Plaintiff to appear  before a Committee of the Board of Directors in respect of circumstances leading to the purchase of a new used engine for Defendant’s Sorento vehicle which was  being used by Plaintiff. Plaintiff was also to answer for certain discrepancies in the  receipts of fuel purchase for which Plaintiff was asking for reimbursement.  

Exhibits M, R1 and 4 preceded Plaintiff’s letter informing of his voluntary  retirement thus Defendant’s attempt to resolve all issues surrounding Plaintiff’s  interdiction was not an afterthought. It is to be noted that, the alleged offences in  the initial interdiction letter of exhibit F differs from the allegations made in  exhibit 4 inviting Plaintiff to appear before a disciplinary panel. An employer is  entitled to initiate disciplinary investigation when it has reasons to believe that an  employee has misconducted him or herself. The court finds that all issues  regarding Plaintiff’s interdiction and the subsequent invitation to appear before a  disciplinary panel had not been resolved before Plaintiff informed of his voluntary  retirement. The conduct of Defendant in this regard, in my humble view cannot  be an afterthought. 

Plaintiff averred that by its conduct, Defendant accepted his notice of intention to  proceed on voluntary retirement and began negotiations with him and his lawyer,  Mr. Seddoh, over his retirement benefits. It is his case that, negotiations only  broke down when Plaintiff discovered that, the Defendant had surreptitiously  compromised his lawyer by offering him consultancy service at the same time as  he was supposed to be negotiating his end of service entitlements with the  Defendant on his behalf. Thus the issue whether the Defendant validated its  acceptance of Plaintiff’s notice of intention to go on voluntary retirement by  entering into negotiation with him and his lawyer over the said entitlements. Exhibit U is instructive and states as follows:

“26th November, 2012 

MR KEN DEGBOR 

TEMA 

Dear Sir, 

In furtherance of the letter to you dated 8th November, 2012, I am of the  opinion that an amicable solution be brought to all the issues raised in  respect of your interdiction by the previous handlers of the Company. 

To this end, I have decided to offer you this solution which to all intents  and purposes, will bring a humane way out for you. 

The Company is to pay you your entitlements up to the time of your  interdiction in 2007. Please find attached the calculations of your  entitlements up to that date. 

A cheque No. 001087 of 18/12/2012 in the sum of GHS12,524.19 as part  payment of the entitlement is also attached. The balance to be paid you will  be determined when the Company vehicle you are using is valued and set  off against it. This option is only available if you so choose. If not, then on  the return of the vehicle in good working condition, your balance  outstanding will be paid at an agreed date. 

Barclays Bank Ghana Limited has informed the Company about the loan you  owe the Bank, and by a letter as attached dated 16/11/12, their instruction  to us is to deduct and pay same directly to the Bank the said sum from your  entitlements. As a result the Company is under obligation to comply.  Whatever the net is will be paid thereafter. 

Kindly acknowledge within ONE WEEK of the receipt of this letter and the  attached cheque. 

MODESTO E. K. BINEY

(MANAGING DIRECTOR) 

Cc: Board of Directors” (emphasis added). 

The contents of exhibit U is more of an invitation to enter into a compromise  agreement to end the employment contract mutually. It does not in any way  amount to acceptance of Plaintiff’s notice of his intention to retire voluntarily. 

Exhibit 6, is a letter dated 15th July, 2013 from Plaintiff’s lawyer, Mr Seddoh proposing a computation of Plaintiff’s end-of-service benefits to Defendant for  the latter’s consideration and necessary action. DW testified that after several  meetings between parties with Plaintiff’s lawyer in attendance, the parties agreed  on GHS92,000.00 less GHS42,542.19 already paid to Plaintiff. DW stated at  paragraph 24 of his witness statement that: “…Plaintiff verbally agreed in the  presence of his counsel in respect of the agreed sum of GHS50,000.00 as the final  sum of the severance.” Plaintiff also testified that, when Defendant failed to  respond to his notice of decision to voluntarily retire, he was compelled to engage  a lawyer, Mr Seddoh who advised that parties enter into mediation and by exhibit  6, the court can safely infer that the parties agreed to end the employment  contract mutually. Generally, a mutual agreement to bring to an end a contract of  employment without duress to an end for good consideration after the employee  had received proper legal advice is effective. This was the case in Logan Salton v. Durham County Council [1989] IRLR 99, EAT. The claimant in the Durham case was  due to attend a disciplinary hearing but a mutual agreement was made to end the  employment contract on terms thus a subsequent claim for unfair dismissal failed. Exhibit 6 is not conclusive of the terms in respect of the mutual agreement to end the employment contract as same was being forwarded to Defendant for its  consideration and necessary action. No evidence was placed before the court to  demonstrate that, parties settled on the terms. The court will hold that, an  attempt to end the employment contract mutually did not amount to acceptance  of Plaintiff’s decision to end the employment relationship by voluntary  retirement. 

Another issue is whether the Plaintiff’s entitlements for the period of interdiction  totaled GHS120,994.77 out of which only GHS42,524.19 was paid. This is  Plaintiff’s contention which is denied by Defendant. I t was held in Majolagbe v. Larbie [1959] GLR 190 that: ‘Proof, in law, is the establishment of fact by proper  legal means; …..Where a party makes an averment, ………, he is unlikely to be held  by the Court to have sufficiently proved that averment ……., if he does not adduce  that corroborative evidence which (if his averment be true) is certain to exist.’ The  onus is on Plaintiff to prove to the court his entitlement to the GHS120,994.77  less GHS42,524.19 he is claiming. Plaintiff testified that: “For the four (4) years  that the Plaintiff was on interdiction without pay, his salaries, allowances and  other entitlements stood at GHS120,994.77. However, only GHS42,524.19 was  paid leaving a balance of GHS78,470.68 outstanding up to this day.” In support of  this claim, Plaintiff tendered exhibits M, N, P and Q. Exhibit M, dated 26th January,  2012 is correspondence from Defendant’s Managing Director, requesting Plaintiff  to provide him with all correspondence between him and the previous  management. Exhibit N, dated 2nd February, 2012 is response to exhibit M, in  which among others, Plaintiff reminds Defendant that, based on his recall, he had  been paid salaries for three months and also part payment of his accrued entitlements. Exhibit P is a Payment Voucher dated 7th March, 2012 indicating  payment of GHS20,000.00 to Plaintiff as “part refund of outstanding liabilities”.  Exhibit Q is Plaintiff’s letter to Defendant dated 23rd April, 2012 titled “PAYMENT  PLAN – OUTSTANDING REMUNERATION.” Exhibit Q further stated that: “I would  be very grateful if a further payment of GHS30,000.00 would be paid to me and  the rest spread over four months……The other time I receive(d) an amount of  GHS30,000.00…..Please find attached the breakdown of the total benefits due  me…” There was no attachment to exhibit Q as stated therein. These exhibits  Plaintiff sought to rely on do not support Plaintiff’s assertion that he is entitled to  GHS120,994.77 out of which only GHS42,524.19 was paid. Exhibits P and Q,  without more show that, Plaintiff had been paid an amount of GHS50,000.00 and  not GHS42,524.19. Plaintiff has thus been unable to prove with credible evidence  that, he is entitled to the amount he is claiming and same must fail. 

Is Plaintiff entitled to his claim? Plaintiff is also seeking an order for the payment  of the sum of GHS327,486.47 with interest being the computed balance  outstanding as Plaintiff’s arrears of unpaid salaries and allowances/voluntary  retirement packages during the period of Plaintiff’s wrongful interdiction. In this  regard, Plaintiff stated at paragraph 25 of his witness statement thus: “I aver that  at the date of my retirement, I became entitled to an amount of GH327,486.47 as  calculated by me. My calculation titled “STATEMENT OF ACCOUNT – KEN DEGBOR” is annexed and marked as Exhibit “V”. I also claim interest on the said  total sum of GHS327,486.47 from the date of my voluntary retirement, 24th December, 2012 to the date of final payment.” This statement of Plaintiff, exhibit  V, was denied outright by Defendant thus the onus is on Plaintiff to prove his claim. It is not in dispute that the amounts being claimed by Plaintiff are premised  on his stance that he was recalled unconditionally and retired voluntarily. As has  been ruled elsewhere, Plaintiff’s recall was subsequently revoked and no evidence  has been placed before the court that, his voluntary retirement had been  accepted by Defendant to warrant entitlements under the conditions of service. Generally, disciplinary procedures form part of the employment contract and  parties are bound by the terms thereby. It is therefore obligatory on the part of  the employee to comply with disciplinary proceedings where allegations have  been leveled against him or her. To therefore, terminate the employment  relationship by way of retirement during the pendency of disciplinary action will  be subject to the acceptance of the employer to be effective in order to avail  oneself of benefits flowing from the severance. 

In the instant suit, Plaintiff was interdicted on 14th January, 2008 and by a further  letter dated 18th April, 2008 was given notice to appear before disciplinary  committee. Plaintiff failed and or refused to appear before the disciplinary  committee with the excuse that the issues raised, the subject of the disciplinary  action would be better resolved at the National Labour Commission. The petition  to the NLC is by letter dated 10th January, 2008 regarding nonpayment of  Plaintiff’s October to December, 2007 salaries. It is noted that the subject of his  petition do not cover all the allegations made in the interdiction and notice to  appear before the disciplinary committee (exhibits F and J1). Plaintiff states at  paragraph 12 of his witness statement that, whilst his petition was pending at the  National Labour Commission, he was recalled. The recall letter is dated is dated  26th September, 2011, meaning his petition had been pending at the National Labour Commission from 10th January, 2008 to 26th September, 2011, a period of  some three years and eight months without closure. 

The court also notes that, when the recall was revoked and subsequently another  invitation to appear before a committee of the board of directors was extended  to Plaintiff by letter dated 26th June, 2012 (exhibit 4), there was no evidence  placed before the court to suggest that, he honoured the invitation. Instead by  letter dated 11th September, 2012, he informs of his decision to take voluntary  retirement pursuant to the provisions of the employment contract, the very terms  he had flouted by failing to appear before the disciplinary committees set up by Defendant. One cannot approbate and reprobate. In the circumstance, Defendant  is entitled not to accept the decision of Plaintiff’s voluntary retirement to afford  him the benefits that go with it, the basis of his claim. In the circumstances,  Plaintiff’s claim for GHS327,486.47 fails and indeed his claim in its entirety. Plaintiff is hereby ordered to return properties of Defendant in his possession as  requested of him but he failed so to do. There will be no order as to costs. 

Justice Gifty Dekyem (Mrs) 

(Justice of the High Court, Labour Court 1, Accra)

COUNSEL

DICK ANYADI ESQ FOR THE PLAINTIFF

AFFUM AGYEPONG ESQ FOR THE DEFENDANT (ABSENT)