CASINO REVENUE TAX DECREE
Year: 1973
This law (Casino Revenue Tax (Amendmenet) Law, 1985) shall be deemed to have come into effect on the 1st day of January, 1985. [Inserted and to be cited as Casino Revenue Tax (Amendment) Law, 1985 (PNDCL 133), s. 2] COLONEL I. K. ACHEAMPONG Chairman of the National Redemption Council Date of Gazette Notification: 30th August, 1973. amended by CASINO REVENUE TAX (AMENDMENT) DECREE, 1976 (SMCD 45)1 CASINO REVENUE TAX (AMENDMENT) LAW, 1985 (PNDCL 133)2
Mary Larley Nunoo v Manase Ataglo
Dotse, JSC [Presiding], Baffoe-Bonnie, JSC, Marful-Sau, JSC, Dordzie (Mrs), JSC, Amegatcher, JSC.
The Plaintiff sought declaration of title, perpetual injunction, cancellation of the Defendant’s provisional land certificate, recovery of possession, and damages for trespass in respect of land at West Akweteman, Accra. The High Court entered judgment for the Plaintiff but the Court of Appeal reversed the decision. On further appeal, the Supreme Court restored the judgment of the High Court, holding that the Plaintiff had established her root of title and acts of possession while the Defendant’s provisional land certificate had been issued by mistake and conferred no valid title.
Mrs Vincentia Mensah (Suing Per Her Attorneys Boniface Lumor & John Allen, Substituted by Beatrice Tsotso Adjetey) v Numo Adjei Kwanko II
Akuffo (Ms), JSC [Presiding], Ansah, JSC, Adinyira (Mrs), JSC, Dotse, JSC, Yeboah, JSC.
The Appellant sought declaration of title to land at Baatsonaa Station, North of Teshie, relying on a conveyance executed by the Mankralo of Teshie in 1959. The Respondent contended that the land formed part of Kle-Musum Quarter lands and that the Mankralo lacked authority under Teshie customary law to alienate quarter lands. The Court of Appeal reversed the High Court judgment in favour of the Appellant and granted the Respondent’s counterclaim. On further appeal, the Supreme Court affirmed the Court of Appeal’s decision and held that the conveyance relied upon by the Appellant was void for want of title.
Kolog Duun of Kolog’s House, Datuku v Boar Dok, Didome Boar, Danzi Teng & Tindana of Datuku
His Worship Mawukoenya Nutekpor
The Plaintiff sought declaration of title, vacant possession, and perpetual injunction in respect of farmland at Datuku. The Defendants denied the Plaintiff’s title and counterclaimed that the disputed land formed part of their ancestral family lands under the authority of the Tindana of Datuku. The Court dismissed the Plaintiff’s claims and upheld the Defendants’ counterclaim after finding that the Defendants’ traditional history and acts of possession were more probable and credible than those of the Plaintiff.
Agnes Amma Gyimah v Benjamin Asamoah & Another
Her Worship Bianca Gyamera-Beeko
The Plaintiff sought declaration of title, recovery of possession, and perpetual injunction in respect of four acres of land at Osaeso-Bomkpo, Larteh-Akuapim North District. The Plaintiff relied principally on an arbitration decision allegedly confirming her family’s ownership of the land. The Defendants denied liability and contended that the land did not belong to the Plaintiff. The Court dismissed the Plaintiff’s claims after finding that she failed to prove acquisition, identity, and possession of the land in dispute.
Mrs Vivian Aku-Brown Danquah v Samuel Lanquaye Odartey
Ansah, JSC [Presiding], Anin Yeboah, JSC, Baffoe-Bonnie, JSC, Benin, JSC, Pwamang, JSC.
The Plaintiff and Defendant each claimed ownership of land near Abokobi on behalf of their respective families, relying on conflicting traditional histories of acquisition by settlement. The High Court dismissed the Plaintiff’s claim and granted the Defendant’s counterclaim without giving detailed reasons. The Court of Appeal reversed the decision and entered judgment for the Plaintiff. On further appeal, the Supreme Court affirmed the Court of Appeal’s judgment, holding that the Plaintiff had sufficiently identified the land and proved acts of ownership and possession within living memory, while the Defendant failed to establish adverse possession or superior title.
Christian M.K. Kpatsi, Prince Amoah Ampofo, Gabriel Kwesi Acheampong & Reindorf Nii Okai v Abass & 3 Others
Bianca Gyamera-Beeko
The Plaintiffs sought declaration of title, recovery of possession, perpetual injunction, damages for trespass, special damages for destroyed boundary pillars, and costs in respect of land situated at Aburi behind Little Acre Hotel. The Court dismissed the claims on grounds that the Plaintiffs failed to sufficiently prove acquisition and ownership of the land through credible evidence.
MOVELLE COMPANY LTD. VRS GHANA REVENUE AUTHORITY
(SGD.) SHEILA MINTA, J.
Ghana Revenue Authority auctioned forty one containers of frozen chicken and chicken parts imported by Movelle Company Ltd after the goods remained uncleared at the ports beyond the statutory period prescribed under PNDCL 330. Movelle Company Ltd claimed that the delay in clearing the goods was caused by a new government policy requiring import permits for poultry products before clearance from the ports. The company argued that the permits were introduced after purchase arrangements had already been made and that the permit process delayed clearance despite the goods remaining preserved in refrigerated containers. The Plaintiff contended that the Defendant unlawfully seized and auctioned the goods without complying with mandatory statutory and administrative customs procedures. It further claimed that the Defendant failed to account for the proceeds from the auction and thereby breached the Plaintiff’s property rights under Article 20 of the Constitution. The Plaintiff sought declarations, damages, refund of the value of the containers, and an order compelling the Defendant to account for the auction proceeds. The Defendant admitted seizing and auctioning the containers but argued that the goods were perishable and had overstayed at the ports beyond the legal four day clearance period. The Defendant maintained that under Sections 116 and 117 of PNDCL 330, it was entitled to auction perishable goods immediately without notice. It also argued that the Plaintiff failed to apply within 180 days for any balance from the auction proceeds and was therefore estopped from making such claims. The Court held that the seizure and auction of the goods were lawful because the Plaintiff failed to comply with customs clearance requirements and did not obtain the required permits before importation. However, the Court found that the Defendant failed to comply with its statutory duty to properly account for the auction proceeds as required under Section 117(3) of PNDCL 330. The Court noted that the Defendant produced no evidence showing how the proceeds were applied toward duties, charges, expenses, or whether any balance had been paid into the Consolidated Fund. The Court also found that the Defendant’s witness lacked personal knowledge of the auction process and could not state when the goods were auctioned or whether the sale was by public auction or allocation. The Court ruled that the Plaintiff was entitled to an account of the proceeds from the auction sale. Claims for damages and refund of the full value of the containers were dismissed because the Plaintiff’s own failure to comply with import permit requirements contributed to the situation. The Court ordered the Commissioner-General of the Defendant to account for the proceeds of the auction within one month. If the Defendant failed to do so, the Plaintiff would become entitled to the assessed value of the forty one containers, calculated at US$1,442,072.50 less statutory deductions. Costs of GH¢30,000 were awarded against the Defendant.
FELIX YAW BANI V. MAERSK GHANA LIMITED
DATE-BAH JSC (PRESIDING), DOTSE JSC , YEBOAH JSC ,ARYEETEY JSC ,AKOTO-BAMFO (MRS) JSC
Labour Law — Termination of Employment — Wrongful Dismissal — Reinstatement — Ultra Vires — Judicial Control of Private Employment Decisions The appellant, an Inland Container Depot Supervisor of the respondent company, had his employment terminated following the findings of an internal investigative subcommittee which concluded that he failed to exercise adequate supervision, thereby exposing the company to security risks. The High Court dismissed his claim. The Court of Appeal affirmed the dismissal but awarded compensation for non‑compliance with the notice period under a collective bargaining agreement. Dissatisfied, the appellant appealed to the Supreme Court. Held: The appeal was dismissed in its entirety. 1. Raising Fresh Issues on Appeal: An issue of law arising from the record may be raised for the first time on appeal. However, assuming an internal investigative committee of a private company acted outside its mandate, such ultra vires conduct does not invalidate an employer’s common law right to dismiss an employee for proven misconduct. 2. Ultra Vires Doctrine Inapplicable to Private Employment Discipline: The doctrine of ultra vires and judicial oversight of administrative action apply to public bodies and not to private sector employers. Courts will not supervise internal disciplinary or administrative decisions of private enterprises unless a public law element exists. 3. Termination vs. Unfair Termination: Under Ghanaian common law, there is no standalone cause of action for “unfair termination” before the courts. The proper remedy for wrongful termination is damages, not reinstatement, except where statute expressly provides otherwise through the Labour Commission. 4. Reinstatement and Specific Performance: Reinstatement amounts to specific performance of a contract of employment, which is not permissible at common law. The statutory power to order reinstatement under the Labour Act, 2003 (Act 651) is vested in the Labour Commission, not the courts. 5. Disparity in Disciplinary Sanctions: The fact that other employees involved in the incident received lesser sanctions does not render the appellant’s termination unlawful or unfair where misconduct sufficient to justify dismissal is established. 6. Effect of Procedural Non‑Compliance: Failure to strictly comply with termination procedures under a collective bargaining agreement may justify limited compensation (e.g., pay in lieu of notice) but does not invalidate a termination justified by proven misconduct.
NATIONAL LABOUR COMMISSION V. HEALTH FACILITIES AND REGULATORY AGENCY
JUSTICE GIFTY DEKYEM
Labour Law – Unfair termination – Probation – Status of employee at end of probation – Powers of the National Labour Commission – Enforcement of NLC directives – Burden of proof – Absence of defendant The National Labour Commission (NLC) applied to the High Court under section 172 of the Labour Act, 2003 (Act 651) for the enforcement of its directives following a complaint of unfair termination by an employee whose appointment was subject to a one‑year probation. The employer failed to confirm or formally terminate the employee’s appointment at the end of probation, yet prevented him from continuing at post. Held: (1) Upon the expiration of a stipulated probation period, an employee ceases to be on probation and becomes a permanent employee unless the employment is lawfully terminated or the probation expressly extended in accordance with the contract and the Labour Act. (2) Where an employer alleges termination during or after probation, the burden shifts to the employer to justify the termination once the employee establishes a prima facie case of unfair termination. (3) The NLC is empowered under section 64 of Act 651 to order reinstatement, re‑employment, or compensation where termination is found to be unfair, and such directives are enforceable by the High Court. (4) In an application to enforce an NLC decision, the court will not automatically re‑open the merits of the decision but may satisfy itself that the directives are consistent with the law before ordering enforcement. (5) Where a respondent, duly served, fails to oppose an enforcement application, the court may proceed to grant the application provided the claim is supported by law and evidence. Accordingly, the court granted the application and ordered the enforcement of the NLC’s directives, including reinstatement of the employee and payment of all accrued entitlements.
EBENEZER ADJAIDOO V. NOVOTEL HOTEL
JUSTICE GIFTY DEKYEM
Labour Law – Termination of Employment – Misconduct – Fair Hearing – Burden of Proof– Allegation of discrimination – Age Discrimination – Labour Act, 2003 (Act 651). FACTS The plaintiff, a Laundry Attendant employed by the defendant hotel, had his appointment terminated following an incident in which he rendered laundry services to a guest without ensuring completion of the prescribed laundry request and billing form, prepared the bill only after a query had been raised, made billing errors and failed to charge for express service despite completing the laundry within the applicable express‑service timeframe. The plaintiff contended that the termination was wrongful, unfair and discriminatory on grounds of age, and that he had not been granted a fair hearing. The defendant maintained that the plaintiff breached laid‑down procedures, was queried, given an opportunity to be heard before a disciplinary committee and lawfully dismissed for misconduct. Held 1. On the evidence, the plaintiff breached established laundry procedures by rendering services without a properly completed guest request form and by preparing the bill only after being queried. 2. The plaintiff was accorded a fair hearing, having been issued with a query, allowed to respond and invited to appear before a disciplinary panel prior to termination. 3. The defendant was entitled under sections 15(e)(iii) and 62(b) of the Labour Act, 2003 (Act 651) to terminate the plaintiff’s employment for proven misconduct. 4. The allegation of age discrimination was not established, the plaintiff having led no credible evidence in support of the claim. 5. Accordingly, the termination was fair and lawful. The plaintiff’s claims were dismissed.
BUMI AMARDA GHANA LTD VRS THE COMMISSIONER-GENERAL
JUSTICE CONSTANT K. HOMETOWU
BUMI AMARDA GHANA LTD VRS THE COMMISSIONER-GENERAL CASE SUMMARY The Appellant (Bumi Armada) sought relief from the High Court, Commercial Division to appeal an assessment made by the Respondent (Commissioner-General of the Ghana Revenue Authority). The Court granted most of the reliefs sought by Bumi Armada. FACTUAL BACKGROUND Bumi Armada (Appellant) is a limited liability company incorporated in Ghana as a wholly owned subsidiary of Bumi Armada Offshore Holding Limited, which is also wholly owned by Bumi Armada Berhad, whose business is operating as a subcontractor under a Petroleum Agreement between Eni Ghana Exploration and Production Limited and the Government of Ghana. The Commissioner-General of the Ghana Revenue Authority, (GRA) an entity established by the laws of Ghana to collect public revenue, including the conduct of an audit on taxpayers. On 30th March 2021, Bumi Armada appealed against the Commissioner-General’s tax decision dated 31st August 2020. A reviewed tax liability of $3,750,011.19 was conceived from the initial tax decision which was $4,451,653.32 after a tax audit by the Respondent. Bumi Armada dissatisfied with the reviewed tax liability of $3,750,011.19 filed an appeal to the High Court for determination. ISSUES 1. Whether the Commissioner-General erred in law by interpreting the scope of the Eni Ghana Exploration and Production Limited’s Petroleum Agreement to exclude contracts for the supply of services between the Appellant and its sub-subcontractors. 2. Whether the Commissioner-General erred in law by classifying payments made by Bumi Armada to its sub-subcontractors for the services, including manpower services as subject to withholding tax and/or pay as you earn (PAYE) payments. 3. Whether the Commissioner-General misdirected itself in the assessment of withholding tax for the 2015-2019 years of assessment. 4. Whether the Ruling of the Commissioner-General is against the weight of evidence. CASE OF BUMI ARMADA Bumi Armada signed a Charter Party dated 21st July 2015 with Eni Ghana for the provision of patrol vessels. Eni Ghana, by a letter dated 17th June 2014 requested a private ruling from the Commissioner-General on the cascading effect of withholding tax as it related to payments made by a subcontractor under its Petroleum Agreement to the subcontractor’s affiliates or third-party subcontractors. The Commissioner-General’s response dated 1st October 2014, stated, among others, that the subcontractor had no obligations under Section 27 of the then Petroleum Income Tax law, 1987 (PNDC Law 188) to withhold tax from any payments to such a person in respect of Eni’s Petroleum Agreement. The Commissioner-General, in the said response letter, stated that where a subcontractor enters into a contract with a non-resident person to provide any works or services in connection with Eni’s Petroleum Agreement which contract gives rise to income accruing in or derived in Ghana, the subcontractor should notify the Commissioner-General in writing within 30 days of entering into the contract to determine the tax treatment of the income of the non-resident person from such a contract. Bumi Armada wrote again to the Commissioner-General on 12th January 2017 with a reminder two years later on 22nd January 2019 on the issue of the tax treatment as directed, yet the Commissioner-General failed to respond to the request. The Commissioner-General finally responded to Bumi Armada’s letters on 10th January 2020, stating that a contract for the supply of services between Bumi Armada and a non-resident company does not fall within the scope of Eni Ghana’s Petroleum Agreement. The letter also stated that the tax law revoked the Cascading Ruling Bumi Armada had been given, with effect from 2016 hence Bumi Armada was required to withhold tax when making payments to the non-resident sub-subcontractors for the supply of services and works and pay the same to the GRA. Bumi Armada appealed against the Commissioner-General’s letter on 18th June 2020 on the ground that the revocation or amendment of the Cascading Ruling cannot have a retrospective effect but rather will have a prospective effect. RELIEFS SOUGHT BY BUMI ARMADA 1. A declaration that the law applicable to the contracts between the Appellant and its sub-subcontractors is the Petroleum Income Tax Act, (PNDCL 188) and the Respondent’s Ruling dated 1st October 2014 on the application of PNDCL 188 as it relates to the cascading effect of withholding tax. 2. A declaration that the payments made by the Appellant to its sub-subcontractors are not subject to withholding tax. 3. A declaration that the payments made by the Appellant to its sub-subcontractor for manning services are not subject to withholding tax or PAYE. 4. An order directing the Appellant and the Respondent to reconcile accounts to ascertain the correct withholding tax liability of the Appellant as it relates to services not connected with the Petroleum Agreement. 5. An order directing that the Respondent to refund all monies collected from the Appellant in respect of the disputed tax assessment. 6. An order directing the Respondent to pay interests at the commercial bank lending rate on the remainder of the 30% deposit already paid to the Respondent after the deduction of the undisputed withholding tax claims. 7. Costs, including Attorney’s fees. 8. Any other order(s) that the Honourable Court may deem fit. CASE OF THE COMMISSIONER-GENERAL The Commissioner-General held that, by the authority or power conferred on him under section 36 of the Revenue Administration Act, 2016 (Act 915), it issued an introductory letter dated 28th February 2020 to Bumi Armada stating that its Tax Returns had been selected for audit and detailing, amongst others, the tax types to be audited, the records to be made available to the audit team for a tax audit. The audit resulted in a tax liability of $4,451,653.32 which was communicated to Bumi Armada. Bumi Armada, not satisfied with the decision of the Commissioner-General, then objected to the tax decision. The Commissioner-General went further to make the case that Bumi Armada had relied on a Private Ruling by the Commissioner-General specifically issued to Eni Ghana Exploration and Production Limited, even though the said ruling had been revoked ostensibly to avoid payment of certain taxes, the unmasking of which resulted in the bulk of Bumi Armada’s tax liability. The Commissioner-General stated that following several correspondences, and Bumi Armada satisfying the requirement for tax objection, the Commissioner-General reviewed the initial tax liability of $4,451,653.32 downwards to $3,750,011.19. Bumi Armada still dissatisfied with the Objection Decision of the Commissioner-General appealed to the High Court for the determination of the matter. DECISION OF THE COURT 1. The Court upheld the appeal that the Commissioner-General erred in law by interpreting the scope of the Eni Ghana Exploration and Production Limited’s Petroleum Agreement to exclude contract for the supply of services between Bumi Armada and its sub-subcontractors. The Court mentioned that the law governing the tax implications of contracts entered into under a Petroleum Agreement is the Petroleum Income Tax Act, 1987 (PNDCL 188, Section 27 (1) of the PNDCL 188), which emphasized that, ……… the person liable under that contract to make payment to the subcontractor shall withhold from the aggregate amount due to the subcontractor the percentage of the aggregate amount due that may be specified in the petroleum agreement and the amount so withheld shall be paid to the Commissioner and payment shall have the effect provided for in subsection (3). The Court also noted that at the time of the tax audit, the applicable laws were the Revenue Administration Act, 2016 (Act 915), the Income Tax Act, 2015 (Act 896), and the Income Tax Regulation, 2016 (L.I. 2244). With the coming into force of the Income Tax Act, 2015 (Act 896) and the Income Tax Regulations, 2016 (L.I. 2244) the above ruling on the Withholding Tax Cascading provides that the subcontractor should not deduct withholding tax from amounts payable to the sub-subcontractor is revoked as provided under Paragraph 5(3) of the Seventh Schedule of the Income Tax Act, 2015 (Act 896) and subsequently under section 106(3) of the Revenue Administration Act, 2016 (Act 915). The Court in clarifying the issue stated section 27(2) of the PNDCL 188, that the Withholding Tax Cascading Ruling of Bumi Armada dated 1st October 2014 provided in part as follows; Where the Subcontractor engages any person to assist in the performance of its obligations in connection with Eni’s petroleum agreement, the Subcontractor has no obligation under section 27 of PNDC Law 188 to withhold tax from any payments to such a person in respect of the same contract, The Subcontractor is, however, required to file returns on all transactions with the person who assisted it in the performance of its obligations with the Ghana Revenue Authority. To further buttress the decision of the Court, the Court cited section 106(5)(b) of the Revenue Administration Act, 2016 (Act 915) which clearly emphasized that the amended or revoked part of a private or class ruling applies to arrangements commenced after the amendment or revocation. 2. The Court decided that the Commissioner-General erred in law by classifying payments made by Bumi Armada to its sub-subcontractors for the services, including manpower services as subject to withholding tax and/or pay as you earn (PAYE) payments. Background: Bumi Armada had erroneously posted manpower services rendered by BAB as “staff costs” in 2015. Since these expenses for manpower services were incurred during the pre-joint venture stage, BAOHL and Cypress agreed that these expenses should be for the sole account of BAOHL. Accordingly, these expenses were reversed out of Bumi Armada’s books in 2018. The Commissioner-General’s assessment of the PAYE tax liability for Bumi Armada failed to take the reversal into account, making the assessment inaccurate. The Court held that the contract Bumi Armada had with its sub-subcontractors was one for the provision of services by way of the provision for manpower services. The sub-subcontractors provided their own staff for the execution of the contract and thus were the ones to pay the taxes (PAYE) on its employees. 3. The Court also upheld the appeal that the Commissioner-General misdirected itself in the assessment of withholding tax for the 2015-2019 years of assessment. The Court further emphasized that the Commissioner-General has to be sure in assessing withholding tax on any figures in the trial balance, those figures tally with those in the financial statements, to take account of any adjustments that may have been effected to the figures. The Court directed that Bumi Armada and the Commissioner-General agree on the appointment of an independent auditor to reconcile this issue and report back to the Court on the final determination. 4. The invocation of the Court’s jurisdiction on the omnibus ground of appeal was declined. The appeal failed as the provisions of Order 54 on Tax Appeals do not provide modifications to the rules to admit omnibus grounds of appeal. IMPLICATIONS AND KEY TAKEAWAYS 1. Petroleum Agreements entered into before the passing of the Revenue Administration Act, 2016 (Act 915), the Income Tax Act, 2015 (Act 896), and the Income Tax Regulation, 2016 (L.I 2244) will continue to use the Petroleum Income Tax Act, 1987 (PNDCL 188). This will avoid any Cascading Effect on the parties to the agreement. 2. The provisions in the Revenue Administration Act 2016, (Act 915) section 106(5)(a) and (b) is in line with the 1992 Constitution which prevents imposing any limitations on, or adversely affecting the personal rights and liberties of any person nor imposing a burden, obligation or liability on any person. 3. Under a contract for service the party providing his own staff is responsible for PAYE payments. 4. The audited financial statements are the best source for the computation of withholding tax. It will be wrong to compute withholding taxes on figures in the trial balance since it is prone to wrong adjustments. If the trial balance is to be used, then the GRA must check to see if it correlates with the financial statements and take notice of any adjustments. CONCLUSION Bumi Armada was able to prove that the Commissioner-General erred in law in misinterpreting the scope of the Eni Ghana Exploration and Production Limited’s Petroleum Agreement. Bumi Armada’s appeal on the wrong classification of payments made to its sub-subcontractor as subject to PAYE payments was upheld by the Court. With the issue of errors and discrepancies, the Court held that an independent auditor should be appointed to reconcile the issue and later report to the Court. The last ground of appeal failed as the provisions of Order 54 on Tax Appeals do not provide modifications to the rules to admit of omnibus grounds of appeal.
BENJAMIN OSEI AKOTO V. GHANA AIRPORT CO. LTD.
KWABENA ASUMAN-ADU J
Labour Law – Employment – Termination of Employment – Wrongful Dismissal – Fair Hearing – Natural Justice – Contract of Service – Dereliction of Duty The plaintiff, an aviation security guard employed by the defendant company, challenged the termination of his employment as unlawful and unfair, contending that he was denied fair hearing and that due process under the applicable Collective Agreement was not followed. The termination arose from the plaintiff’s failure to report an incident involving an unauthorised passenger who attempted to gain access to a restricted airport area in order to board an aircraft. Held, dismissing the action, that the plaintiff breached his duty as a security officer by failing to report an attempt by an unauthorised person, escorted by another officer, to use a restricted arrival terminal as a boarding gate. Such failure constituted a serious security breach and amounted to gross dereliction of duty. The court further held that the defendant complied with the disciplinary procedure stipulated under the Collective Agreement. The plaintiff was interdicted, informed of the allegations against him, invited to appear before a duly constituted disciplinary committee, given the opportunity to submit a written statement and be heard, and subsequently paid salary in lieu of notice. Accordingly, the rules of natural justice were observed. It was reaffirmed that a contract of service is not one of servitude and that an employer is entitled to terminate the employment of an employee, provided the termination is carried out in accordance with the terms of the contract or applicable regulations. The termination of the plaintiff’s employment was therefore lawful, fair, and not wrongful. Claim dismissed. Judgment entered for the defendant.
MUSAH ABDULAI & 21 ORS V. ASHANTI GOLDFIELDS COMPANY LTD. OBUASI
E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A, A. M. DOMAKYAAREH (MRS) J.A
Labour Law – Employment – Wrongful Termination – Damages – Interest – Appeal Former employees of a mining company whose appointments were wrongfully terminated without notice appealed against aspects of a High Court judgment granting damages. The issues included whether the quantum of general damages awarded was inadequate, whether interest ought to have been awarded on salary in lieu of notice, and whether the appellants were entitled to salary arrears, repatriation benefits, leave benefits, and Christmas bonuses following their wrongful termination. Held, (dismissing the appeal in part and allowing it in part) that: 1. An employer–employee relationship is contractual in nature, and unless otherwise provided by statute or contract, wrongful termination does not entitle an employee to restitutio in integrum or salary up to the date of judgment; the employee bears a duty to mitigate losses. 2. General damages for wrongful termination are awarded at the discretion of the trial court and an appellate court will not interfere unless the discretion was exercised on wrong principles or resulted in manifest injustice. The award of six months’ salary as general damages was reasonable and not excessive or inadequate. 3. Interest is awardable on sums wrongfully withheld, including salary in lieu of notice, even where not expressly pleaded, where the law imputes an obligation to pay interest and where empowered by statute, particularly under the Court (Award of Interest and Post‑Judgment Interest) Rules, 2005 (C.I. 52). 4. Claims for additional entitlements such as repatriation benefits, Christmas bonus, and salary arrears must be founded on the contract of employment or applicable collective agreement and supported by evidence. Where the conditions precedent under the collective agreement were not met or no evidence was led, such claims must fail. 5. An appeal is by way of rehearing, but the appellate court will not substitute its discretion for that of the trial court merely because it would have reached a different conclusion
ANGLOGOLD ASHANTI (GH) LTD V. JOB KINGSTON BOAKYE-MENSAH
A. M. DOMAKYAAREH (MRS) J. A. PRESIDING, A. B. POKU-ACHEAMPONG J. A., ERIC BAAH J. A.
Labour Law – Wrongful Dismissal – Criminal Allegations Against Employee – Standard of Proof – Burden of Proof – Collective Bargaining Agreement (CBA) – Remedies The respondent, a winding engine driver employed by the appellant company for over thirty years, was dismissed following disciplinary proceedings for allegedly conniving with illegal miners (galamseyers) to steal quartz and for misuse of company property. The trial High Court held that although the employer complied with the disciplinary procedures under the applicable Collective Bargaining Agreement (CBA), the allegations against the respondent, being criminal in nature, were not proved beyond reasonable doubt as required by section 13 of the Evidence Act, 1975 (NRCD 323). The dismissal was therefore held to be wrongful and unfair, and substantial damages were awarded in favour of the respondent. The appellant appealed against the decision, contending inter alia that the trial judge misallocated the burden of proof, erred in applying the criminal standard of proof to disciplinary proceedings, wrongly interfered with the findings of the disciplinary committee, and improperly granted the reliefs awarded. Held: The appeal was dismissed in its entirety. The Court of Appeal held that in an action for wrongful dismissal, the employee bears the initial burden of proving the terms of his employment and that the termination was unlawful or in breach thereof. Once this burden is discharged, the evidential burden shifts to the employer to justify the dismissal. Where the employer relies on allegations amounting to criminal conduct, such allegations must be proved beyond reasonable doubt notwithstanding that the proceedings are civil in nature. The court further held that compliance with internal disciplinary procedures or a Collective Bargaining Agreement does not, by itself, render a dismissal lawful where the substantive grounds for dismissal—being criminal allegations—are not proved to the requisite standard. Circumstantial evidence relied upon by the employer must be compelling and must irresistibly point to the guilt of the employee; mere suspicion, however strong, is insufficient. On remedies, the court affirmed that an employee wrongfully dismissed on criminal allegations is entitled to damages aimed at placing him, as far as money can do so, in the position he would have been had the wrongful dismissal not occurred. The trial judge therefore did not err in awarding salaries, benefits, and compensation for wrongful dismissal.
FRANCIS OSEI-ANSAH V. NATIONAL VOCATIONAL TRAINING
JUSTICE LAURENDA OWUSU
Employment Law – Termination of Employment – Restructuring – Public Service Facts The plaintiff was employed by the defendant institute in 1980 and served for twenty‑eight years. He was promoted to the rank of Deputy Chief Internal Auditor and later acted as Chief Accountant. Following allegations of impropriety, the defendant undertook a restructuring exercise and introduced a new scheme of service. Acting positions were advertised and the plaintiff was not shortlisted for the advertised post of Head of Accounts. The plaintiff subsequently went on six months’ leave without pay. Upon his return, he was offered appointment as Principal Accountant, which he rejected on the ground that it constituted a demotion contrary to articles 190 and 191 of the 1992 Constitution. The defendant treated his refusal as severance of the employment relationship and confirmed the termination of his appointment. The plaintiff commenced an action seeking declarations that the termination was unconstitutional and wrongful, together with damages and unpaid entitlements. Held 1. The plaintiff was promoted to the rank of Deputy Chief Internal Auditor. 2. The offer of appointment as Principal Accountant did not amount to a demotion or reduction in rank. 3. The termination of the plaintiff’s appointment was neither unconstitutional nor wrongful.
ALFRED TETTEH ANNAN V. GOLD ROYAL ENTERTAINMENT CO. LTD.
JUSTICE LAURENDA OWUSU
Labour Law – Contract of Employment – Wrongful Termination – Damages Facts The plaintiff was employed by the defendant as a Dealer Inspector and claimed that he was subsequently promoted to the position of Pit Boss. Following allegations of theft involving another employee, the plaintiff was demoted and later issued with a letter terminating his employment with immediate effect. The plaintiff contended that both the demotion and termination were unlawful and sought declarations, outstanding salary, compensation for wrongful termination, legal fees, and costs. The defendant denied that the plaintiff was ever substantively promoted to Pit Boss and maintained that the termination was lawful and in accordance with the conditions of service. Issues Whether the plaintiff was, at the time of termination, a Pit Boss or a Dealer Inspector. Whether the termination of the plaintiff’s employment was wrongful. Whether the plaintiff was entitled to the reliefs claimed. Holding 1. The plaintiff was a Dealer Inspector at the time of termination, no credible evidence having been adduced to prove a substantive promotion to Pit Boss. 2. The termination of the plaintiff’s employment was wrongful and unlawful, as it was effected without notice and on allegations imputing criminal conduct without due disciplinary process. 3. The plaintiff was entitled to damages for wrongful termination and part of his monetary claims, but not to legal fees.
THEODOSIA ANTWI V. EPROCESS INTERNATIONAL
JUSTICE LAURENDA OWUSU
Headnote Employment Law — Redundancy — Statutory procedure — Failure to notify Chief Labour Officer — Effect — Labour Act, 2003 (Act 651), ss. 62, 65 The plaintiff was employed by the defendant as a Management Information Systems Officer. Her employment was terminated on grounds of redundancy following a restructuring exercise. She challenged the termination, alleging that the redundancy was unlawful for failure to comply with the Labour Act, 2003 (Act 651), particularly the obligation to give prior notice to the Chief Labour Officer and to negotiate redundancy benefits. Held: although termination on grounds of redundancy constitutes a permissible and fair termination under section 62(c) of the Labour Act, compliance with the procedures under section 65 of the Act is mandatory. Failure to give at least three months’ prior written notice to the Chief Labour Officer rendered the redundancy unlawful, notwithstanding payment of salary in lieu of notice to the employee. However, where an employer has complied with the contractual notice requirement, the employee is not entitled to additional notice benefits beyond the terms of the contract. The plaintiff was therefore entitled to redundancy pay, gratuity, and damages for unlawful termination, but not to salary for the period after termination nor to three months’ salary in lieu of notice.
DR. WALTER AFFO V. UNIVERSITY OF GHANA
JUSTICE GIFTY AGYEI ADDO
Labour Law – Employment – Fixed-term contracts – Renewal of contract – Unlawful termination – Academic employment – Defamation (employment context) Facts The plaintiff, a lecturer in the Chemistry Department of the University of Ghana, was employed on a fixed-term contract which expired on 31 July 2013. Upon invitation, he applied for renewal of his contract. The University refused to renew the contract, citing “serious financial impropriety that had dragged the University’s name into disrepute,” and communicated this reason in a letter dated 28 August 2013. The plaintiff contended that by custom and practice within the University, renewal of lecturers’ contracts was a mere formality, except in cases of grave professional incompetence or misconduct. He alleged that the refusal to renew his contract amounted to unlawful termination, that the reasons given injured his reputation, and that the University failed to follow due process. He accordingly sought declarations, reinstatement, unpaid salary, damages, and injunctive reliefs. The University argued that the plaintiff’s contract expired naturally, that renewal was not automatic, and that it was not obliged to assign reasons for non-renewal. It further alleged misconduct relating to unauthorized financial dealings, though disciplinary proceedings were not concluded before the expiration of the contract. Holding 1. The plaintiff’s contract ended naturally upon its expiration on 31 July 2013 and was not terminated by the defendant. 2. Renewal of a lecturer’s contract at the University of Ghana is not automatic nor a mere formality, but subject to laid-down statutory procedures. 3. An employer is not legally obliged to renew or re-employ an employee whose fixed-term contract has expired. 4. Although the defendant failed to prove the alleged financial impropriety against the plaintiff, such failure does not convert a non-renewal into unlawful termination. 5.Claims for unlawful termination, reinstatement, unpaid salary beyond contract expiry, damages, and injunction were dismissed.
DANIEL ARMOOH V. HFC BANK GHANA LIMITED
JUSTICE KWEKU T. ACKAAH-BOAFO
Headnote Employment Law – Wrongful Dismissal – Natural Justice – Proven Misconduct – Termination of Employment – Employer’s Duty – Burden of Proof – Disclaimer Publication – Emotional Distress – Malicious Prosecution – Labour Act, 2003 (Act 651). The plaintiff, an employee of the defendant bank, was arrested and prosecuted for forgery and conspiracy to commit fraud following a complaint made by the defendant. While the criminal trial was pending, the defendant interdicted and subsequently dismissed the plaintiff and published disclaimers in national newspapers warning the public against transacting business with him. The plaintiff was later acquitted and discharged by the criminal court. He commenced an action claiming damages for wrongful dismissal, unlawful arrest, false imprisonment, malicious prosecution, emotional distress, and loss of economic and professional opportunity. Held: 1. Malicious Prosecution / Unlawful Arrest: A person who merely reports a suspected crime to the police does not become liable for malicious prosecution unless it is shown that the person instigated or directed the prosecution. On the evidence, the defendant only lodged a complaint, and the police independently investigated and prosecuted the case. The claims for unlawful arrest, false imprisonment, and malicious prosecution therefore failed. 2. Wrongful Dismissal: Although an employer at common law and under section 17 of the Labour Act, 2003 (Act 651) is not obliged to give reasons for terminating a contract of employment, where dismissal is justified on grounds of misconduct, such misconduct must be proven. The defendant failed to establish, by credible evidence, that the plaintiff engaged in any proven misconduct. The alleged forensic report relied upon was neither produced nor substantiated, and the plaintiff was acquitted of all criminal charges. The dismissal was carried out without observance of due disciplinary procedures and in breach of the rules of natural justice. The termination was therefore wrongful. 3. Natural Justice and Fair Termination: Under sections 15 and 62 of Act 651, termination based on misconduct must rest on proven misconduct and compliance with fair procedure. An employee must be afforded an opportunity to be heard before adverse disciplinary action is taken. The defendant violated these principles. 4. Disclaimer Publication and Emotional Distress: The publication of disclaimers featuring the plaintiff’s photograph during the pendency of his criminal trial was unjustified and calculated to undermine his reputation. The refusal of the defendant to retract the publications despite a court order aggravated the plaintiff’s emotional distress. However, the plaintiff failed to adduce sufficient evidence to prove actual loss of economic or professional opportunities flowing from the publication. 5. Damages: The plaintiff was entitled to general damages for wrongful dismissal and emotional distress, but not for malicious prosecution or loss of professional opportunity.