SHAFAWU MUSAH V. AVIATION HANDLING SERVICES (GH) LTD.

B. ACKAH-YENSU, JA

INTRODUCTION

In this appeal against the judgment of the High Court (Labour Division) dated 27th March, 2018, the Applicant/Appellant (hereinafter to be referred to simply as the “Appellant”) prays that the decision of the Court below be set aside and judgment entered in her favour. 

BACKGROUND FACTS

Appellant’s Case

The Appellant’s claim at the trial Court was that she was accused of extorting money from an Arik Air passenger who had excess luggage. Her employer, the Respondent/Respondent (also to be referred to simply as the “Respondent”), claimed that she was induced by the payment of the money to check in the said passenger and her friend together with the excess luggage, contrary to laid down procedures of the Airline and Airport regulations.

The Appellant denied extorting any money as alleged by her employer, the Respondent. It is her case that based on the allegations against her, she was queried, subsequently charged and put before a Disciplinary Committee as required by her contract of employment. At the hearing however, Appellant’s attempt to be represented by her lawyer was rejected, even though she insisted that she had the right under law to be so represented. The Respondent called off the hearing, contending that the Appellant could not attend the disciplinary hearing with her lawyer. Appellant was subsequently invited to appear before the Disciplinary Committee for a second time but the hearing was again called off because she attended with her lawyer. Appellant’s appointment was consequently terminated. She is therefore claiming that the termination of her contract of employment was unlawful and in breach of her constitutional rights.

Respondent’s Case

Respondent, on the other hand, contended that the Appellant was engaged in an unlawful act of extortion and also carried out her duties in a manner that breached their rules of operation and Airport regulations. They therefore had no option but to subject the Appellant to disciplinary proceedings as required by her contract of employment.

When there was disagreement as to whether the Appellant could appear before the Disciplinary Committee with her lawyer or to be represented by a Union member, the Appellant chose to appear before the Committee with her lawyer. Not happy with the stance of the Appellant, the Respondent called off the disciplinary proceedings and terminated the employment of the Appellant.

GROUNDS OF APPEAL

As aforesaid, at the close of hearing the learned trial Judge entered judgment for the Respondent and dismissed Appellant’s case in its entirety. It is against the said judgment that the instant appeal has been brought. The Appellant set out the grounds of appeal as follows:

“a. The judgment against the weight of the evidence.

 b. That the learned trial judge misdirected herself on the nature, effect and scope of Article 19(2)(f) of the 1992 Constitution when she held that the provision only applies to judicial proceedings in Court and does not apply to an accused employee appearing before a disciplinary Committee.

c. The court below erred in law when it interpreted Article 19(2)(f) of the 1992 Constitution.

Particulars of error of law

That the parties placed rival interpretation on the nature, scope and effect of Article 19(2) (f) of the 1992 Constitution, the learned judge erred in law when she interpreted the said provisions by holding that Article 19(2) (f) of the 1992 Constitution applies only to proceedings before a court of law instead of referring same to the Supreme Court under Article 130(2) for interpretation.

d. That the learned trial judge erred in fact and in law when she held that the Defendant/Respondent provided a hearing and proved the misconduct of the Plaintiff/Appellant before terminating her employment.

Particulars of error of fact

(i) The Defendant/Appellant witness confirmed under cross-examination that they did not have the opportunity to prove the misconduct of the Plaintiff/Appellant because she insisted on her right of legal representation and was thus terminated without hearing and therefore the learned trial judge should not have ignored all these facts and find that the Plaintiff/Appellant’s alleged misconduct was proven in the absence of a hearing

Particulars of error of law

(ii) The trial judge failed to take into consideration that the burden was at all material times on the Defendant/Respondent to prove the guilt of the Plaintiff/Appellant before the Disciplinary Committee before terminating or dismissing her as required by her contract of employment, and therefore could not have concluded that by merely insisting on her right to legal representation that burden was lifted off the Defendant/Respondent.

DETERMINATION OF APPEAL

In our consideration of the matters on appeal we will determine grounds (b) and (c) together, first. 

The trial Judge opined as follows:

“Article 19 of the 1992 Constitution is on fair trial relating to trials before a Court and not before disciplinary committees such as the instant one in a workplace. Article 19 of the 1992 Constitution is thus not applicable to Plaintiff’s case thus cannot rely on same to fault Defendant”. 

Article 19(2) (f) reads as follows:

“19 (2) A person charged with a criminal offence shall—

(f) be permitted to defend himself before the court in person or by a lawyer of his choice”.

The submission of Counsel for the Appellant is that the parties herein had taken different views regarding the nature and effect of Articles 19(2)(f) and 1(2) of the 1992 Constitution, and given rival interpretations to same vis-a-vis the Collective Bargaining Agreement. For that matter, it was the duty of the trial court to have referred the matter to the Supreme Court for interpretation under Article 130(2) of the Constitution.

Counsel for the Appellant submitted that “the principles of natural justice and fair hearing has been exalted and inserted into a Constitutional right under the 1992 Republican Constitution. Article 19 (2) (f) therefore allows a person charged with a criminal offence to at least defend his/herself by a lawyer or in person”. He submitted further that the fair hearing principle contained in Article 19 of the Constitution entails the principles of natural justice. These principles include the right to legal representative whether before public or private institutions. 

There is absolutely no doubt that the 1992 Constitution has exclusively reserved for the Supreme Court the jurisdiction of interpreting and/or enforcing the Constitution as is provided for in Articles 2(1)(a) and (b) and (2) and 130(1) and (2) of the Constitution. The exclusivity of this interpretative and enforcement jurisdiction of the Constitution to the Supreme Court is so special that except for the Enforcement of Fundamental Human Rights and Freedoms which has been ceded to the High Court, reference Article 130(1), all other courts in Ghana below the Supreme Court, are enjoined to stay proceedings in any matter whenever an issue of constitutional interpretation arises before them, and refer such a matter to the Supreme Court for interpretation. 

Article 130 of the 1992 Constitution stipulates thus:

130 ORIGINAL JURISDICTION OF SUPREME COURT

(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in

(a) all matters relating to the enforcement or interpretation of this Constitution; and

(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.

2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.

Thus by virtue of Article 130(2) of the 1992 Constitution, as soon as the issue of constitutional interpretation arises in any proceedings, in any court other than the Supreme Court, that court should stay further proceedings in the case and refer the question of interpretation to the Supreme Court. The referral court should finally dispose of the case in terms of the interpretation that the Supreme Court would give in the matter. 

There are a legion of cases which state this position of the law. See (i) Oppong v. Attorney-General [2003-2004] 1 SCGLR 376; (ii) Republic v. Special Tribunal; Ex parte Akosah [1980] GLR 592; (iii) Republic v. High Court (Commercial Division), Accra; Ex parte Attorney-General (Balkan Energy Ghana Ltd. and Others Interested Parties [2012] 2 SCGLR 1183; (iv) Agyekum v. Boadi [2000] SCGLR 282, and (v) Republic v. Maikankan [1971] 2 GLR 473 SC.

It is nonetheless a well-established principle that where the constitutional provisions that call for interpretation are plain, precise, clear and no real or genuine issue of interpretation arises, the lower court can apply the provisions as they are: or where those provisions have already been interpreted by the Supreme Court, then the lower court must take guidance from the interpretation which is binding on them anyway. Thus, it is only in cases where there are real and genuine issues of constitutional interpretation that the Supreme Court would be requested to perform its role. See Banousin v. The Republic [2015-2016] 2 SCGLR 1232.

The Supreme Court speaking through Adinyirah JSC in Bomfeh v. Attorney General (Unreported: Supreme Court, Writ No. J1/14/2017, dated January 2019), stated:

“A constitutional issue is not raised on account of a Plaintiff’s absurd, strained and far-fetched understanding of clear provisions in the Constitution. For a person to assert a manifestly absurd meaning, contrary to the very explicit meaning and effect of clear words in the Constitution, does not mean that a genuine issue of interpretation of some relevant constitutional provision has arisen ……….

The real test is whether the words in the Constitutional provision sought to be interpreted are ambiguous, imprecise and unclear and cannot be applied unless interpreted. If it were otherwise, every conceivable case may originate in the Supreme Court by the stretch of human ingenuity and the manipulation of language to raise a tangible constitutional question. Practically, every justifiable issue can be spun in such a way as to embrace some tangible constitutional interpretation. The Constitution may be the foundation of the right asserted by a Plaintiff, but that does not necessarily provide the jurisdictional predicate for action in the Supreme Court”.

We note with interest that while Counsel for Appellant is accusing the trial Judge of flouting the provisions of the 1992 Constitution by attempting to interpret provisions of the said Constitution, Counsel himself is entreating this Court to give the said provision a purposive approach to its interpretation rather than a literal interpretation. In our view, the words in Article 19 of the Constitution are so clear and unambiguous that they need no interpretation; be it purposive or literal. The learned trial Judge therefore did not interpret the provisions of Article 19(2) (f) of the Constitution. She applied the said provisions to the facts of this matter as they were clear and unambiguous, and arrived at the conclusion that Article 19 of the Constitution is on Fair Trial relating to trials before a court and not before a disciplinary committee.

It is also Counsel’s submission that the charge of extortion is a criminal offence and therefore the proceedings before the Disciplinary Committee was quasi-criminal in nature. Contrary to the Counsel for Appellant’s argument, it is clear that the Appellant was not charged with a criminal offence under the Criminal and Other Offences Act, 1960 (Act 29) but rather charged with extortion under the contract of employment. It is interesting to note that under Act 29 a person convicted of a criminal offence is liable to a term of imprisonment not exceeding twenty-five years.

Article 19 of the Constitution provides for a court to give a person accused of a criminal offence under the laws of Ghana a fair hearing. The Disciplinary Committee set up in the instant case is neither a criminal trial nor a court set up in accordance with the Constitution. See Article 19(1), and 19(21), and 295 of the Constitution and section 117 of the Courts Act, 1993 (Act 459).

We do not find that the learned trial Judge erred per se. What we will however examine is whether or not the trial Judge was right in coming to the conclusion that the Appellant’s insistence on the presence of her lawyer made it impossible to commence the hearing and thus the Respondent could not be faulted.

This will take us to the determination of Grounds (a) and (d). We note that Grounds (a) and (d) are essentially the same. They both complain about the evaluation of the evidence by the trial Judge which allegedly led to a judgment that was against the weight of evidence adduced. For this reason we will subsume Ground (d) under Ground (a); the judgment is against the weight of evidence.

We are by this omnibus ground being invited, being in much the same position as the trial court regarding the evidence led, to evaluate same and arrive at our own conclusions regarding whether or not the findings of the trial court are supportable from the evidence adduced. This is in line with our jurisdiction under Rule 8(1) of the Court of Appeal Rules C.I. 19. See also Agyenim-Boateng v. Ofori and Yeboah [2010] SCGLR 861.

To assist the Court in this endeavor, the Appellant has a duty to point out pieces of evidence which, had they been properly evaluated by the trial court, ought to have led the Court to a conclusion different from what was arrived at. We will be guided by the statement of the Supreme Court per Benin JSC in the case of Owusu-Domena v. Amoah [2015-2016] 1 SCGLR 790 at 799, where His Lordship expanded application of the scope of Tuakwa v. Bosom [2001-2002] SCGLR 61 as follows:

“The sole ground of appeal that the judgment is against the weight of evidence, throws up the case for a fresh consideration of all the facts and law by the Appellate Court. We are aware of this court’s decision in Tuakwa v. Bosom …….on what the court is expected to do when the ground of appeal is that the judgment is against the weight of evidence. The decision in Tuakwa v. Bosom, has erroneously been cited as laying down the law that, when an appeal is based on the ground that the judgment is against the weight of evidence only matters of fact may be addressed upon. Sometimes, a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate matters.”

So, what was the evidence placed before the trial Court? The Appellant’s employment, from the evidence adduced at the trial, was governed by two contracts; her employment contract (Exhibit K) and the Collective Bargaining Agreement (Exhibit 12). Under Exhibit K, either party could terminate the agreement with two months’ written notice or payment of a month’s salary in lieu of notice. Exhibit K simply provides for termination with notice without reason while Exhibit 12 provides for termination for stated reasons with notice. Section 13.1 of Exhibit K, and Article 12 of Exhibit 12. However, both termination clauses are in accordance with section 17 of the Labour Act, 2003 (Act 651) which provides that an employer can terminate the appointment of an employee at any time provided only that the employer gives due notice to the employee or pays the employee salary in lieu of the notice.

Contrary to Counsel for Appellant’s submission that Appellant was not bound by Exhibit 12, the Appellant’s testimony at the trial revealed that she was aware at all material times that she was bound by the terms of Exhibit 12. In fact, by Appellant’s own letter (Exhibit F) she demanded to be reinstated on grounds of procedural impropriety, stating that she was not invited to appear before the Disciplinary Committee which was a requirement under Article 11 of Exhibit 12. The Appellant was interdicted in accordance with Article 11 of Exhibit 12 and a Disciplinary Committee was constituted to hear the allegations leveled against her, in accordance with Exhibit 12. Furthermore, the Appellant complained that she was not given an opportunity to provide her defence to the allegations within the requisite time provided by her contract of employment which procedure was set out in Article 11 of Exhibit 12. As a matter of fact, Appellant’s contention is that Article 11(4) of Exhibit 12 contravened the provisions of the Constitution and not that the terms and conditions of her employment were not governed by Exhibit 12.

It is trite law that whenever there is a written agreement between parties, the duties and responsibilities of each party is to be sought for within that agreement. Exhibit 12 provided for the Appellant to attend the hearing with a member of the Union or her colleague worker and not a lawyer. The Appellant however insisted on the presence of her lawyer, arguing that Exhibit 12 infringed on her constitutional right to representation.

As aforesaid, Counsel for the Appellant submitted that the fair hearing principles contained in Article 19 of the Constitution entails the principles of natural justice. These principles, he further submits, include the right to legal representation, whether before public or private institutions.

There are two cardinal principles of natural justice; the rule against bias (nemo iudex in causa sua), and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general “duty to act fairly”. The basis for the rule against bias is the need to maintain public confidence in the legal system. The essence of the need for impartiality was observed by Lord Denning in Metropolitan Properties Co. (FGC) Ltd. v. Lannon [1969] 1 QB 577 “Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking the Judge was biased”. The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their case.

A fundamental aspect of natural justice is that before a decision is made, all parties should be heard on the matter. Besides promoting an individual’s liberties, the right to a fair hearing has also been used by courts as a base on which to build up fair administrative procedures. It is now well established that it is not the character of the public authority that matters but the character of the power exercised.

In the case of Awuni v. West African Examinations Council [2003-2004] SCGLR 471, Kpegah JSC stated thus:

“The phrase “to act fairly and reasonably’ in my opinion necessarily imports a duty to observe the common law maxim of audi alteram partem and other principles of natural justice which is very much part of our jurisprudence and are implicit in the constitutional provisions in article 23.” 

Sophia Akuffo JSC, also opined in the same case as follows:

“ ‘Article 23 of the Constitution provides that:

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

Thus, by this article, the right to administrative justice is given constitutional force, the objective being the assurance to all persons the due observance and application of the principles of natural justice which foster due process and the stated qualities, in the performance of administrative activities that affect them ………..

Where a body or officer has an administrative function to perform, the activity must be conducted with, and reflect the qualities of fairness, reasonableness and legal compliance. I will not venture to give a comprehensive definition of what is fair and reasonable, since these qualities are dictated by the circumstances in which the administrative function is performed. At the very least however, it includes probity, transparency, objectivity, opportunity to be heard, legal competence and absence of bias, caprice or ill-will. In particular, where …… the likely outcome of an administrative activity is of a penal nature, no matter how strong the suspicion of the commission of the offence, it is imperative that all affected persons be given reasonable notice of the allegations against them against them and reasonable opportunity to be heard, if the objective of article 23 is to be achieved.  This is in line with current trends in administrative law in general as pointed out in Halsbury’s Laws of England (4th Ed.) (Reissue) Vol. 1(1) paragraph 84”.

So, was Respondent’s alleged misconduct against Appellant proved in spite of the fact that Appellant did not appear before the Disciplinary Committee to defend herself. The trial Judge delivered herself as follows:

“In the light of the above, was the termination of Plaintiff lawful? On the ground that Plaintiff was not heard, a termination flowing therefrom cannot be said to be unlawful as Plaintiff did not take the opportunity to defend herself. On the ground of proven misconduct, Defendant in the Termination Letter, exhibit L stated that:

In other words, it is the opinion of the Defendant that, Plaintiff had no defence hence her conduct to frustrate the disciplinary proceedings with the presence of her lawyer when the provisions of the Collective Agreement to the contrary had been explained to her and the lawyer. At this point Plaintiff’s response to the alleged misconduct was with Defendant and the latter was entitled based on the evidence before it without further to the contrary to conclude that Plaintiff was guilty of the charges leveled against her”.

The position of the law on proof is trite. The relevant statutory provisions are sections 10 – 17 of the Evidence Act, 1976 (NRCD 323). There is abundant case law interpreting these provisions. The preposition of the law is that a person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred.

It is also a well-known rule of evidence that although proof in civil cases rest on the plaintiff, that burden is discharged once the plaintiff has introduced sufficient evidence of the probability of his case. It will then rest on the defendant to rebut the plaintiff’s evidence.

In pleading, the Appellant stated that the termination of her appointment was unlawful since it violated the contract of employment between her and the Respondent Company, and also violated her constitutional right to representation. The Respondent denied this assertion and contended that Appellant’s appointment was terminated in accordance with the Collective Bargaining Agreement which provided for an employee’s appointment to be terminated on grounds of misconduct, and that the Appellant was given every opportunity to be heard. The burden was therefore on the Appellant to prove that the termination of her appointment was indeed unlawful, and that it violated her contract of employment.

It is a fact from the record that the Appellant was given the opportunity to be heard by the Disciplinary Committee on two occasions. Appellant’s contention however is that she was refused her request to appear before the Committee with a lawyer and hence did not have the opportunity to physically appear before the Committee.

It is trite learning that every person has the right to have a hearing and be allowed to present his or her own case. However, this requirement does not necessarily mean the decision-maker has to meet the complainant face to face – “Natural justice does not generally demand orality”. See R (Morgan Grenfell and Co. Ltd.) v. Special Commissioner of Income Tax [2000] 2 WLR 255 at 286. It has been suggested that an oral hearing will almost be as good as useless if the affected person has no prior knowledge of the case. In the case of Lloyd v. McMahon [1987] 1 AC 625, House of Lords, Lord Justice Harry Woolf held that an oral hearing may not always be the “very pith of the administration of natural justice”. It has also been suggested that an oral hearing is only required if issues concerning deprivations of legal rights or legally protected interests arise.

The Supreme Court of Ghana has held that once there is sufficient evidence on record to justify the conclusion that a party’s behaviour amounted to misconduct, the trial court did not have to concern itself with whether or not there had been compliance with the rules of natural justice in the absence of a contractual provision. Date Bah JSC, in the case of Felix Yaw Bani v. Mearsk Ghana Limited [2011] 2 SCGLR 796, held as follows:

“… once there was evidence on record sufficient to justify the conclusion that the Plaintiff’s behaviour amounted to misconduct, the learned trial Judge did not have to concern himself with whether there had been compliance with the rules of natural justice, unless there was a contractual provision to the contrary”.

 And what was the contractual provision, if any, in the instant case?

 Article 11 of the Collective Bargaining Agreement (Exhibit 12) deals with the disciplinary procedure states inter alia thus:

“4. Right to be accompanied

At all stages of the formal disciplinary procedure, you are entitled to be accompanied by either a work colleague or your choice (which should normally be someone employed at the same location as you); a union representative; or a full-time official employed by a Trade Union. For the avoidance of doubt this does not include solicitors or (except in the case of Trade Union representatives) any persons not employed by the Company”.

There is no inherent common right to legal representation before an administrative body such as a disciplinary committee. The common law principle is that a person does not have an absolute right to be legally represented before tribunals other than courts of law and a disciplinary hearing is not a court of law, it is a civil internal process.

There is a school of thought expressed in the South African case of MEC Department of Finance, Economic Affairs and Tourism: Northern Province and Another v. Mahuani [2005] 2 All SA 479, that even though in terms of common law a person does not have an absolute right to be legally represented before tribunals other than courts of law, it does require disciplinary proceedings to be fair and if “in order to achieve such fairness in a particular case legal representation may be necessary, a disciplinary body must be taken to have been intended to have the power to allow it in the exercise of its discretion unless, of course, it has plainly and unambiguously been deprived at any such discretion”.

The question as to whether an employee has the right to legal representation in a disciplinary hearing has, over the last number of years, plagued the minds of employment lawyers. The High Court decision in Lyons v. Longford Westmeath ETB [2018] 29 ELR 35 caused huge concern amongst practitioners. The decision was that given the complexity of the case, the employee should be allowed to retain legal representation should he wish to do so. The High Court made reference to the case of Burns and Hartigan v. Governor of Caslerea Prison (2009) 20 E.L.R. 109 in which the Court held that the following factors should be considered by an employer in determining whether an individual’s right to legal representation arises:

· the seriousness of the charge and of the potential penalty;

· whether any points of law are likely to arise;

· the capacity of a particular individual to present his or her own case;

· procedural difficulty;

· the need for reasonable speed in making the adjudication, that being an important consideration; and

· the need for fairness as between individuals in different roles in the process.

On appeal, the Court of Appeal found that a disciplinary hearing would not be considered unfair, or in breach of natural justice, simply because the person against whom the misconduct was alleged did not have legal representation. It also noted that the allegation of misconduct in this case was a “straightforward one”, and one regularly faced by many employees in similar circumstances.

In the instant case, the Appellant was charged with extortion and in accordance with Exhibit 12, a disciplinary enquiry was instituted to go into the allegations leveled against her. The Committee insisted on the Appellant abiding by the terms of her contract as a result of which she did not take the opportunity offered here to appear before the Committee to defend herself.

In our view, once the subject matter was raised at the Disciplinary Committee hearing, an opportunity was availed Appellant to defend herself, if she so wished. What is important is being aware of the offence and being given the opportunity to react to same in defence, if any. The import of the rules of natural justice is that “------the accused should not be condemned without being first given a fair chance of exculpation”. See General Medical Council v. Spackman [1043] 2 All ER 337. The principle is substantive rather than procedural. As long as a person against whom an allegation is made is afforded the opportunity to defend himself, then that duty would have been discharged by the person or body handling the matter.

So, was the sufficient evidence before the tribunal to support the termination of the Appellant’s appointment? From exhibit 2, the Respondent queried the Appellant based on the complaint from a passenger and set out the allegations leveled against the Appellant as follows:

1. Breach of all safety and security procedures.

2. Extortion of money from a guest without receipt.

3. Throwing back to passenger of an initial amount of GH¢50.00 saying it was not enough.

4. Disrespecting and humiliating the passenger at the boarding gate even though she had said she did not have money.

5. Misconducting herself at the boarding gate.

6. Dragging the name of ARIK AIR as well as the Company in disrepute.

In her response to the query (Exhibit 3), the Appellant admitted to breaching safety and security procedures and taking money from a passenger without a receipt. Under cross-examination, the Appellant admitted that she checked in the luggage of two different passengers in the name of one passenger contrary to the Respondent’s regulations as well as the Airport regulations, and that the passenger gave her money. She further admitted that she did not report the security breach to her supervisor, neither did she lodge the breach in the Respondent’s system as required, which was also contrary to the Respondent’s regulations, and constituted acts of misconduct. The Appellant also admitted that her employment contract provided for her to follow instructions and failure to do so was an act of misconduct. That, her employment contract provided that her employment be terminated by a month’s notice in writing or the payment of a month’s salary in lieu of notice on grounds of misconduct.

In our view, the Respondent herein complied with the requirements of section 13.1 of Exhibit K and Article 13 of Exhibit 12 when it exercised its right to terminate the Appellant’s contract of employment by paying her a month’s salary in lieu of notice together with all her benefits. In our opinion, there is sufficient evidence before the trial Court to support the decision of the court. The judgment is therefore not against the weight of evidence.

Contrary to the Appellant’s assertion that the trial Judge erred in holding that the Respondent provided a hearing and proved the misconduct of the Appellant, the trial Judge held in her judgment that the Appellant failed to prove her innocence before the Disciplinary Committee after being given the opportunity on two occasions, and based on that the Respondent was entitled to conclude that the Appellant was guilty of the charges leveled against her.

We find the learned trial Judge’s reasoning to be sound and supportable from the evidence. The trial Judge’s conclusion was therefore not erroneous.

CONCLUSION

In summation, we are of the view that the Appellant has failed to prove that the judgment of the trial Court is against the weight of evidence placed before the court for this appeal to succeed. We have also made a determination that the trial Judge did not misdirect herself on the matter, effect and scope of Article 19(2) (f) of the 1992 Constitution, neither did she err when she held that the Respondent provided a hearing and that the alleged misconduct was proved albeit that she did not appear before the disciplinary committee to defend herself further.

In the circumstances, this appeal fails and it is hereby dismissed.

I. O. TANKO-AMADU, J. A. I agree       

AMA GAISIE, J. A. I also agree  

B. F. ACKAH-YENSU, JA (PRESIDING).

JUSTICE OF THE COURT OF APPEAL

I. O. TANKO AMADU, JA.

JUSTICE OF THE COURT OF APPEAL

AMMA GAISIE, JA

JUSTICE OF THE COURT OF APPEAL

COUNSEL

FORTUNATE K. B. FIU FOR APPELLANT

LOIS NTERFUL FOR DEFENDANT/RESPT/RESPT