Seddoh Vrs Standard Chartered Bank (H1/302/2005.) [2008] GHACA 23 (07 February 2008);
IN THE SUPERIOR COURT OF JUDICATURE,
IN THE COURT OF APPEAL,
ACCRA – GHANA.
Coram: Akamba, J.A. Presiding
Anim, Justice of Appeal,
F. Kusi Appiah, J.A
-------------------------------------------------------------------------------- H1/302/2005.
7th February 2008.
Richard Awuku Seddoh Plaintiff/Appellant.
vs.
Standard Chartered Bank Defendants/Respondents.
JUDGMENT
………………………………………………………………………
AKAMBA, J.A: In this appeal, the plaintiff/appellant (hereinafter referred as plaintiff) was until 1992 an employee of the defendant/respondent bank (hereinafter simply referred as the defendant) wherein he held the position of Supervisor in the Customer Services section of the foreign department. In or about 1992 an internal fraud was uncovered in the aforesaid foreign department of the defendant involving the secret siphoning of the bank’s money into two foreign currency accounts known as the Ishmael Lamptey account and the Paul Davies account. Following internal investigations by the defendant bank involving the use of both its internal and international investigative team, a report was made to the Police and the plaintiff and two others were arrested and detained by the police. They were detained in police cells from 30th January to 3rd February 1992 and then at James Fort Prison from 26th May 1992 to 6th June 1992. The plaintiff was subsequently charged and prosecuted before the Public Tribunal Accra for causing monetary loss to the defendant bank as well as for gross negligence from May 1992. The trial was almost at its conclusion when the Public Tribunals were abolished or ceased to function. This however was not the end of the matter for fresh charges were proffered against the plaintiff on the same facts, this time before the High Court Accra. After a full trial, the plaintiff was acquitted and discharged on 28th February 2003.
Meanwhile the defendant bank had by its letter dated 16th April 1992 terminated plaintiff’s employment. They cited two grounds for the termination namely irregularities at the Foreign Business Centre and payments allegedly authorized by the plaintiff into the account of one Ishmael Lamptey based upon a photocopy of a forged National Westminster Bank Plc letter and thereby failing to protect the bank’s interest by not demanding and seeing the original letter to establish the authenticity of the transaction.
Following his acquittal on the criminal charges, the plaintiff formally applied to be reinstated into the bank relying on a collective agreement between the bank and its unionized staff, which according to plaintiff is the basis of the contract of his employment with the defendant. The defendant bank simply refused to reinstate the plaintiff. The bank proceeded further and converted an outstanding housing loan the plaintiff had obtained as an employee at an exceptionally low rate of interest payable over a long period, into a commercial loan attracting commercial rate of interest and demanded immediate repayment. Faced with the foregoing challenges, the plaintiff filed a suit at the High Court (Fast Track) claiming against the defendant the following reliefs:
- A declaration that the defendant’s suspension of plaintiff in or about 4th February, 1992 without any pay or allowances whatsoever was in breach of Article 14 of the Collective Bargaining Agreement applicable to plaintiff at the time.
- A declaration that terminating the plaintiff’s employment and failing or refusing to reinstate him despite being proven innocent of the crime alleged and or charged against him is tantamount to wrongfully dismissing him contrary to the terms of his employment with the defendants.
- Damages for wrongful dismissal.
- Damages for unlawful arrest and detention.
- Damages for malicious prosecution.
- An order that the defendant shall pay to the plaintiff all arrears of salaries, allowances, entitlements and benefits inclusive of all incremental jumps, promotions etc. accorded staff of similar rank at the date of suspension of plaintiff up to date of judgment or payment.
- An order that plaintiff shall be entitled to enjoy the same conditions under which his staff loan was granted as if he had never been suspended or dismissed.
- Any other relief found due.
The trial High Court after hearing evidence entered judgment for the plaintiff for unlawful termination of his employment. The court ordered that the plaintiff be paid his half salary and all other entitlements for the period of his interdiction pursuant to article 14 of the Collective agreement, together with interest thereon at the prevailing bank rate from the date of his interdiction to the date of judgment. The court however declined the claims for damages for unlawful arrest and detention and for malicious prosecution for lack of sufficient evidence in proof thereof.
The plaintiff/appellant argued three grounds of appeal in this court formulated as follows:
- The judgment is against the weight of evidence.
- Having found as a fact that the use of photocopies of documents was the practice then obtaining at the plaintiff/appellant’s department, the foreign department, the learned trial judge erred in holding nevertheless that the defendant/respondent was justified in terminating the appellant’s employment for using photocopy of the relevant document.
- The damages awarded in favour of plaintiff/appellant are unreasonable (sic) low and tantamount to an erroneous exercise of the trial judge’s discretion in the circumstances.
I will deal with ground one (1), which to me is a proper ground of appeal in conformity with rule 8 (6) of CI 19 together with ground two (2) which merely provides particulars in support of ground one. The remaining ground would then be considered separately.
JUDGMENT AGAINST THE WEIGHT OF EVIDENCE.
This ground raises issues primarily with the findings of fact made by the trial court. In such an instance, an appellate court such as this is obliged to carefully and independently examine the record of proceedings in order to satisfy itself whether the evidence on record supports the findings so made. The appellate court is entitled to draw inferences from specific findings of fact as was the case before the trial court. Thus the appellate court is in the same position as the trial court to draw such inferences from specific findings of fact. (See Domfeh vs Adu (1984-86) 1 GLR 655). The appellate court’s power to draw inferences of fact is derived from the rule that an appeal to the Court of Appeal is by way of re-hearing as provided in rule 8 (1) Part II of C.I. 19 of the Court of Appeal Rules 1997. Lord Loreburn L.C. stated the extent of this power in a similar enactment in the case of Pagquin, Ltd vs. Beauclerk (1906) A.C. 148 p. 161 that ‘though the Court of Appeal is not at liberty to usurp the province of a jury, yet if the evidence be such that only one conclusion can properly be drawn the court may enter judgment.’ In the case of Mechanical and General Inventions Co. Ltd vs. Austin (1935) A.C. 347 it was held that the same rule applies ‘if the verdict is one which reasonable men could not have come.’ In such a case a distinction should be made between facts deposed to by witnesses and found by the court and inferences of fact drawn there from by the court. The Court of Appeal is always reluctant to reject a finding by a judge of such specific or primary facts especially when founded on the credibility or bearing of a witness, but is willing to form an independent opinion upon the proper inference of fact to be drawn from it. (See the Supreme Court Practice 1997, pages 1004/5). The Supreme Court in the case of Tuakwa vs Bosom (2001 – 2002) SCGLR 61 has put the matter beyond doubt when it decided that “an appeal is by way of rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on a preponderance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.”
The trial judge had only the evidence of the plaintiff and possibly the cross-examination of the defendant from which to evaluate and determine whether or not the plaintiff’s reliefs ought to be granted. Within this limited scope of evidence the trial court was required to determine whether or not the plaintiff was negligent in his job with the defendant bank in his dealings with the Ishmael Lamptey and Paul Davies accounts.
The court had no difficulty in determining that the plaintiff was not involved and knew nothing about the Paul Davies account because the account in question was opened and fraudulently operated at a time the plaintiff was on transfer to Takoradi. The bone of contention in this appeal is the finding by the trial court on the issue pertaining to the Ishmael Lamptey account. This is how the trial judge captured his findings (See page 123 of appeal record):
“On Ishmael Tetteh accounts as contained in the termination letter exhibit L, plaintiff was accused of authorizing payment into this account on the strength of a photocopy of a forged National Westminster Bank plc letter. From the evidence I will accept that usage of photocopy of such letters has been the practice in the bank. Plaintiff maintained that he had no authorization powers. But from the evidence he had the schedule of verifying, checking the documentation before forwarding same to his boss for final checking and approval. In his evidence in chief he told the court he explains the modality of opening new accounts and checks them to ascertain the accuracy in the figures and the message that must be carried to the voucher before passing them on to his immediate boss. As already stated in respect of this Ismael Lamptey account plaintiff was positive in his evidence that he had nothing to do with the processing and documentation on the opening of the account. Mr Gyampoh after approving it passed it out to the clerks without involving him the plaintiff. The normal procedure where the clerks prepare the vouchers and bring to him to check and ascertain the accuracy of the information of the documentation, sign it before passing it on to Mr Gyampoh was not followed. But further in his evidence in chief he was asked:
Q. Did the vouchers ever come to you?
A. No, they did not come to me.
Q. Did you play any role in the processing of the particular request and the crediting of the particular account?
A. The role I played was to check.
Q. I think you need to bring your mind to what is happening here……You have told this court what you did in the particular case after the clerks have prepared the vouchers, did they bring it to you for you to check.
A. Yes.
Q. So in this case your role that you played in particular was when the vouchers were prepared by the clerks it was brought to you and you checked.
A. Yes.
Q. Were the figures in the request and the vouchers accurate?
A. Yes My Lord.
……………….
The results of this cross-examination also show (sic) clearly that the plaintiff was involved in clearing the documentation on Ishmael Tetteh’s account as valid. It cannot be doubted that plaintiff, as a “B Signatory” was an important peg in the processing of documentation for opening and operating these foreign accounts.”
The inference the trial judge drew from the above cross-examination was that the plaintiff was involved in the clearing and validation of documentation on Ismael Lamptey’s account. In determining whether or not the plaintiff had fallen foul in his duties, the trial court as well as this court would be guided by the evidence led by the parties in accordance with their pleadings. The plaintiff stated in his statement of claim, among others, the following:
“1. The plaintiff was until the events herein-complained of an employee holding the rank of supervisor (B-Signatory) in the Foreign Department of the defendant bank.
2. As supervisor, the plaintiff’s work scheduled (sic) involved assisting customers wishing to open foreign currency accounts by explaining the relevant modalities to them; checking vouchers prepared by clerks; and assisting his immediate superior officer, the Assistant Manager, in executing specific duties assigned.
4. Even though the defendant’s own thorough internal investigations failed to establish the existence of any conspiracy or collusion between the perpetrator of the fraud and the plaintiff and even though the perpetrator persistently told the defendants and the police that he acted alone and that he had not conspired or colluded with anyone in the perpetration of the offence, the defendants, nevertheless caused the plaintiff to be arrested and detained at the police headquarters cells from 30th January to 3rd February, 1992 and at the James Fort Prison from May 26, 1992 to June 6, 1992.”
(Underlined for emphsis)
The defendant’s reaction to the above paragraphs in their statement of defence runs as follows:
“1. Paragraph 1 of the statement of claim is admitted.
2. Save that, as part of his work schedule, the plaintiff was in charge of opening accounts in his department, which involved verification and authorization responsibilities, paragraph 2 of the statement of claim is admitted
4. Paragraph 4 of the statement of claim is as false as it is malicious. The internal investigations at the defendant bank positively fixed the plaintiff with negligence that facilitated the said fraud, and the plaintiff blameworthiness is not based on any collaboration or conspiracy with anybody whatsoever, but based on his own acts and omissions.”
As a result of the claims and counter claims recorded supra, the reply (see page 10 of record) set the tone for trial as follows:
“1. The plaintiff joins issue generally with the defendant on its statement of defence.
2. In reply to paragraph 2 the plaintiff denies that he was in charge of opening accounts in his department or that his duties involved verification and authorization responsibilities.
3. Paragraphs 4, 5, 6, 8 and 9 are denied and defendant will be put to strict proof thereof.”
It does appear to me that, at the close of pleadings there was not much disagreement between the parties except the shift onto the defendant to highlight the extent of the plaintiff’s verification and authorization responsibilities which he exercised in addition to those of opening accounts in his department. This is so because this appears to be a new element pertaining to the duties of the plaintiff that the defendant was introducing for the first time into the matters in contention. The plaintiff’s position especially that emerging from paragraph 2 of the reply supra was one of pre-varification, being now a complete shift in position to that of a total denial of being in charge of opening accounts in his department or that his duties involved any verification and authorization. Section 15 of NRCD 323 deals with the issue as to who has the burden in respect of an allegation of wrong doing and non exercise of a requisite degree of care. It states as follows:
“15. (1). Unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue.
2. Unless and until it is shifted, the party claiming that a person did not exercise a requisite degree of care has the burden of persuasion on that issue.”
No doubt the plaintiff has the initial burden to show that his removal from office was wrongful. In the same vein the defendant has the burden to show that the plaintiff was guilty of wrongdoing and/or did not exercise a requisite degree of care in the discharge of his duty. It is important to point out that the plaintiff must fall by his own action or inaction and not for another’s shortcomings. In the instant appeal the evidence before the trial court was that the plaintiff was not privy to the opening of the Ismael Lamptey account since the perpetrators succeeded in jumping over him to obtain the approval of Mr Gyampoh. However events did not end with the mere opening of the Ismael Lamptey account. For, having thus obtained the approval, the stage was set for the operation of the account by way of deposits and withdrawals. Obviously from this moment, any untoward role played by the plaintiff can begin to assume a measure of significance as far as the plaintiff is concerned. For, barring the conclusion that plaintiff had no hand in the opening of the account in question, how can he (plaintiff) be held responsible in the absence of lapses attributed to him beyond the opening of the Ismael Lamptey account? The answer to this question can be gleaned from the record of appeal and more particularly from the pleadings (if there were any admissions), the evidence led by the plaintiff and the cross examination of the plaintiff. The obvious stance of the defendant from the cross-examination of the plaintiff was that after the opening of the Ismael Lamptey account, the plaintiff authorized and processed vouchers for payments into the said account relying on photocopies of documents presented and this resulted in financial losses to the defendant. For his part, the plaintiff simply denied any knowledge about any untoward practice
There is no doubt as correctly found by the trial judge that the plaintiff as a ‘B Signatory’ was an important peg under normal circumstances in the processing of documents for the opening and operation of foreign accounts with the defendant bank. This is how the plaintiff himself described his duties (See page 24 of record):
“My schedule of work was, to explain modality of opening new account because it was a new thing introduce (sic) in the country so many customers were called to know how it was operated. And also to check vouchers that were prepared by the check(sic)…I check them to ascertain the accuracy in figures and the message that must be carried to the voucher before I passed them on to my immediate boss for final approval.” At page 26 of the record the plaintiff states further that when Mr. Gyampoh approves the opening of an account the documents are sent straight to the clerks after which plaintiff plays no further role according to his schedule.
The plaintiff by the testimony quoted supra was admitting that his duties also required that he checked vouchers prepared by the clerks to ascertain the veracity of the figures and the message. This to me is an admission that the plaintiff’s duties included, at least for the moment, verification responsibilities. No doubt, this job of checking documentation such as vouchers was meant to serve as part of the checks and balances in the processing and was supplemental to the final authorization by the boss Mr Gyampoh.
There is further evidence at pages 63 to 64 as well as 38 (anon) of the record which show the lie in the plaintiff’s further claim that he played no further role after Mr Gyampoh had given approval for the opening of an account and that the documents are sent straight to the clerks.
This is what the plaintiff stated under cross examination recorded at page 63 to 64 of the appeal record:
“Q. Your termination letter referred to interactions you had with the Chief Internal Control and the court investigator from London?
A. Yes My Lord.
Q. This (sic) interactions were part of the internal investigation.
A. Yes My Lord.
Q And the letter claimed that during investigation you were found to have authorized payment to the Ishmael Lamptey account on the strength of the photocopy?
A. Yes My Lord.
Q. I put it to you that by authorizing and processing of vouchers based on photocopy of such letters, is not, was not, and had never been of Standard Chartered Bank?
A. That had been the practice. Money sent to the bank figures vary in Ghana are received through Standard Chartered account in London or they intent send messages to Ghana for us to credit the beneficiary. In case the beneficiary complaints for non receiving of the money the remitting bank sends letter saying that they have provided cover and put the money into your account we should investigate and pay the customer. This letter comes to the Forensic Centre and reconciliation department then they will give a copy of the customer services section that comes to my boss then we will then check from the account. The money in the account when he is satisfied.
Q. I suggest to you that you know little too much of the Ishmael Lamptey account?
A. I do not know anything about it.”
(Underlined and emboldened for emphasis)
Obviously the plaintiff was ambivalent on the role he played after the opening of the Ismael Lamptey account. In one breadth he denied knowledge about the payments into the account and in another he admits checking the vouchers prepared by the clerks relying on photocopies attached. That it was undoubtedly a part of the plaintiff’s duties to check the vouchers to ascertain the accuracy of the figures is borne by the plaintiff’s own testimony at page 24 of the record of appeal referred supra.
In the light of the above stated duties, the trial judge rightly in my mind reasoned in his judgment at page 126 of the record of appeal that ‘If the documents went through him for checking and fairing, as was in the case of Ismael Lamptey’s accounts, and these documents were found later to be fictitious documents was the defendant bank not entitled to find unfavorable plaintiff’s job with the bank? Were they not entitled to adjudge him not suitable, negligent in the performance of his duties, he together with his boss?’
The next point of disagreement between the parties is the use to which photocopies were allowed in the chain of conduct of verification in the bank. Even though the plaintiff claimed that his reliance on the photocopies was in accordance with standard practice of the bank, which is denied by the latter, the bank nevertheless saw this to amount to gross negligence warranting the termination of plaintiff’s appointment. The plaintiff did not lead any evidence to establish this so called standard practice of reliance on photocopies in the bank. From the perspective of the reaction of the bank to the use of the photocopies to incur the liability, it is obvious that the practice was not in accord with official policy of the bank. The practice which appears convenient and time saving to the employees of the branch and founded on mutual trust at best was a risk assumed by those employees which if breached has dire consequences. Such was the case when the plaintiff relied on the photocopies to certify the vouchers presented to him as correct. In this context, there is no justification for the trial judge’s conclusion that the usage of photocopies was standard practice since there was no basis for such finding. Hear the plaintiff (See page 38 of appeal record)
“Q. Did the vouchers ever comes (sic) to you?
- No they did not come to me.
Q. Did you play any role in the processing of the particular request and the crediting of the particular account?
A. The role I played was to check.
Q. I think you need to bring your mind to what is happening here….You have told this court what you did in the particular case after the clerks had prepared the vouchers, did they bring it to you to check?
A. Yes.
Q. So in this case your role that you played in particular was when the vouchers were prepared by the clerks it was brought to you and you checked?
A. Yes My Lord.
Q. Were the figures in the request and the voucher accurate?
A. Yes My Lord.
Q. So what did you do?
A. I passed it on to my boss for a final approval.
Q. How did he give his approval finally?
A. He also signs.
Q. Now after signing the voucher, did this process involve you again?
A. No My Lord.
Q. Now in checking the accuracy of the figures in the application and in the vouchers did you have any authority or discussion whether to approval (sic) the crediting of the account or not?
A. No My Lord.”
It is obvious from the foregoing that the plaintiff played a role in the processing of the vouchers after the opening of the account. He had cleared those documents for the final authorization to be given by Mr Gyampoh for payments into Ishmael Lamptey’s account based on the photocopies presented to him. Since the plaintiff’s duty was to check the accuracy of the figures presented to him, which he did relying on photocopies, it follows that if the figures turned out not to be borne out by the original documents, then what he verified was untrue and false. However minimal this role might appear to the uninitiated, it did have dire consequences for a financial institution such as the defendant which lost a lot of money simply because the plaintiff and other employees whose duty was to verify, did not compare the photocopies with the originals to ascertain the former’s authenticity and veracity. The duty to verify documents was not a mere formality but to ensure that what was being passed was true and accurate. The plaintiff attempts in his evidence in chief at pages 42 to 43 of the record of appeal to down play his duty to verify the accuracy of the documents when he suggested that when the reconciliation department received the original of a document they would proceed to make photocopies thereof which are duly stamped and passed to the plaintiff’s department for processing and that the only person who could call for the original was Mr Gyampoh. That proposition is ridiculous and puerile in view of the fact that it was the duty of the plaintiff to verify those vouchers and certify them to Mr Gyampoh for the latter’s approval for payments to be effected which duty placed upon the plaintiff the responsibility to be sure of what he was passing and thus obliged him to call for the original, if need be. I cannot in these circumstances help but agree with the trial judge that the plaintiff was under a duty to use reasonable care and skill in the discharge of his duty which he failed to exhibit in this case. The defendant bank which was equally dissatisfied with the plaintiff’s conduct in the handling of the Ishmael Lamptey account was entitled to terminate his appointment forthwith. There is ample support for this position in this court’s decision in S.C.O.A Motors vs Koranteng (1967) GLR 263 at 270 wherein Azu Crabbe J.A, (as he then was) stated the following:
“The position is that a servant is deemed to possess the skill which he profess to have by entering into the engagement or contract of service and he is liable to be dismissed if he fails in that skill. By accepting employment with the defendant company, the plaintiff made them judges of his competence, and if they were genuinely dissatisfied with him they could dismiss him summarily.”
The defendant bank therefore wrote exhibit L dismissing the plaintiff. Even though the defendant bank stated therein that it relied on section 1, paragraph 7 (a) and (b) of the terms and conditions of appointment with the bank to dismiss the plaintiff, the plaintiff tendered exhibit N in the trial court and referred to different articles which the trial court relied upon. Unfortunately the originals of both exhibits L and N were not before this court hence we can only rely on the photocopies filed on pages 533 to 535 of the record of appeal and which shall be compared with the same provisions quoted by the judge in his judgment at pages 130 to 132 of the same record to ascertain consistency. In order not to fall foul of the very question we seek to resolve, that is to say, the failure of the plaintiff to compare the photocopy with the original document, our own assumption here is that the trial judge relied on the originals of both exhibits L and N when quoting the said documents, more so that he stood to gain nothing personally in the presentation of the two documents but this could not be said of the documents presented for operating the Ismael Lamptey account.
In a claim for damages for wrongful dismissal, a plaintiff will only succeed if he is able to prove the terms of his employment and then prove either that the determination of the employment is in breach of the terms of agreement or that the determination was in contravention of the statutory provisions for the time being regulating the employment. In essence, in a claim such as this for damages for wrongful dismissal, the plaintiff assumes the burden to begin and that of persuasion. In the Ghana Law of Evidence 1993 edition at page 260 the learned author, J. Ofori Boateng elaborated on the burden on parties thus: “In civil cases the burden of persuasion usually lies on the party with the right to begin, that is, the person who has an issue to present to the court, and will get no remedy unless he tells the court what his claim is about.” Sections 10 (1) and (2) and 11 (1) and (4) 0f NRCD 323 affirm the position stated by the learned author supra.
In this appeal, the plaintiff failed to bring his action under the first requirement, for even though the defendant relied on section 1 paragraph 7 (a) and (b) of the terms and conditions of plaintiff’s appointment to the bank in terminating the appointment(see exhibit L), the plaintiff failed to produce the said letter of appointment in court. As plaintiff, qua plaintiff, it is appropriate to produce his letter of appointment with the bank to prove the terms and conditions of his appointment and then to proceed to show if there is breach thereof. Ordinarily this requirement is not difficult to meet since the plaintiff as an employee of the bank would have been issued with the original of the letter of his appointment embodying the terms and conditions of employment whilst the defendant bank retained an official copy. The plaintiff rather focused his claim on the second requirement, to wit, that the determination was in breach of statutory provisions for the time being regulating his employment which in this case refers to a breach of the collective agreement between the workers union and the defendant company for which reason he tendered exhibit N
This court therefore can only refer to relevant articles quoted by the trial judge from exhibit N to ascertain whether they bear any relevance in resolving the matters in contention. (See pages 533 - 535 of the record). Articles 13, 14 and 15 of exhibit N which were relied upon by the trial court provide as follows:
“ARTICLE 13 – WRITTEN QUERIES:
- Where the services of an employee have not proved satisfactory or where an employee commits an offence, which does not in the opinion of the Bank merit summary dismissal, he shall be given a written warning and such warning shall be recorded in his record of service.
- Before a warning letter is given, the employee shall be permitted to state to his Manager his answers to the offences or shortcomings, which have been alleged against him.
- Upon receipt of the warning letter the employee shall also be permitted to reply in writing to the letter and copies of such warning letters and the employee’s reply shall be made available to the Union, provided this would not involve disclosure of confidential details of customer’s or the Bank’s affairs. In the latter case the Union shall be provided with an outline of the offence or misdemeanor.
(4) After two written warnings have been given, the third offence or continued unsatisfactory service within a period of twelve consecutive months’ service shall give the Bank the right to terminate the employment of the employee concerned. (See Article 40-Grievance procedure)
For the purpose of this Article, a warning letter shall cease to have effect after a period of twelve months and the employee concerned shall be informed of this in writing unless another warning letter has been issued within that twelve month period.
ARTICLE 14- INTERDICTION:
- If an employee is suspected of committing any offence, which could justify summary dismissal, the Bank may interdict the employee from duty while further investigations are carried out. A copy of the Letter of Interdiction is to be delivered to the Union.
(2) While on interdiction the affected employee shall be entitled to half of his basic salary. If the employee is proven innocent and re-instated in his employment he shall be paid his full salary for the period during which he was interdicted.
(3) No employee shall be made to remain on interdiction for a period exceeding six (6) months.
ARTICLE 15 - RESIGNATION/TERMINATION/SUMMARY DISMISSAL:
- An employee may resign by giving one (1) month notice to the bank or by paying one (1) month salary to the Bank in lieu of notice. Where the employment of a confirmed employee is terminated by the Bank, other than in the case of summary dismissal, the bank shall give one (1) month notice in writing to the employee or shall pay him one (1) month salary in lieu of notice.
(2) Summary dismissal may be effected by the bank at any time in the event of an employee being guilty of proven serious misconduct. A copy of the dismissal letter shall be addressed to the Union. If an event is considered by the Bank to merit summary dismissal of an employee, that employee shall be given notice of it in writing, outlining the nature of the offence.
The employee may, if he so chooses reply in writing, but if no reply is received by the bank within one month from the time notice is served on him or if after a reply from the employee, the bank considers Summary Dismissal still necessary, the employee shall be advised in writing that he has been dismissed as from the date of the notice originally serviced on him.”
It is a sad commentary that what was tendered in evidence and exhibited as exhibit N and numbered from pages 8 to 17 is a part of a larger document, which does not reveal who the parties are and to whom they apply. It seems to me that the earlier portions of the document which could have highlighted the parties to whom it applies and would have helped to determine the actual relevance of this document, were the once strangely left out. This conclusion becomes inevitable in view of the fact that the defendant specifically quoted reliance on the terms and conditions of appointment to dismiss the plaintiff. There is abundant evidence to show that the defendant was justified in the conclusion that the plaintiff was guilty of wrongdoing in that he failed to exercise a reasonable degree of care in the discharge of his duties when he verified a document based upon an attached photocopy which transaction turned out to be fictitious. The plaintiff on the other hand has failed to demonstrate what relevance exhibit N has to do with him since he failed to show how the same applies to him. He failed to show by what article he could invoke the said agreement to his case. On the other hand the defendant having demonstrated to this court that the plaintiff was guilty of misconduct as grave as to justify instant dismissal can rely on that misconduct in defence of his action to dismiss. This position is buttressed by the decision of the Supreme Court in Lever Brothers Ghana Ltd. vs Dankwa (1989/90) 2 GLR 385 at 388 thus:
“The law is that where an employee has, in fact, been guilty of misconduct so grave that it justifies instant dismissal, the employer can rely on that misconduct in defence of any action for wrongful dismissal, even if at the date of the dismissal the misconduct was not known to him.”
Thus the defendant acted properly within the operative agreement when it summarily dismissed the plaintiff. It is unfortunate that the plaintiff did not assist his own cause when he failed to produce his letter of appointment with the bank and to demonstrate what relevance the exhibit N is to his case. Assuming even that exhibit N properly governed the present situation, the defendants resort to summary dismissal is properly covered under article 15 (2) thereof. In view of this, the trial court’s orders for the payment of half salary from 4th February 1992 to 16th April 1992 cannot stand for lack of proof. The order to pay the half salary for the above stated period to the plaintiff is accordingly set aside. This position has been aggravated by the fact that the defendant in paragraph 16 of the statement of defence denied the averments in paragraph 12 of the plaintiff’s statement of claim thereby putting the plaintiff to proof thereof which he failed to discharge either by showing by what terms and conditions or regulations he was entitled thereto.
The next segment of this ground of appeal deals with the two findings by the trial judge dismissing the plaintiff’s claims for damages for unlawful arrest and detention and that for malicious prosecution. Nothing has been urged on this court to overturn the clear finding of fact made by the trial judge on these reliefs. The clear evidence before the trial court was that the defendant reported
the fraud to the police and handed the plaintiff to them. The police conducted their own investigations after which they preferred charged against him before the Tribunal and later in the regular courts. I agree with the trial judge that there is no evidence in the record suggestive that the defendant went beyond referring the matter to the police for investigations and action. The prosecution was initiated after the police investigations and at their discretion and not that of the defendant. I equally find no merit in these reliefs and dismiss same.
The final determination made by the trial judge was on the claim by the plaintiff that he was entitled to enjoy the same conditions under which his staff loan was granted as if he had never been suspended or dismissed. This claim appears to me to be rather preposterous. The question was rightly posed by the trial judge as to whether a staff who has been terminated for unsatisfactory service should continue to benefit from a special staff loan with especially low rate of interest. I agree entirely with the trial judge’s observation that the preferential or special loan was more of an encouragement to the staff to motivate them and to protect them from economic hardship and is thus subject to good conduct and behaviour in the defendant institution. The plaintiff has not shown to this court why the trial court’s finding on this relief should be disturbed. On the contrary we find adequate support for the judge’s conclusions. Having been dismissed in the circumstances discussed in this appeal it does not lie in the mouth of the plaintiff to say that he was entitled to the preferential loan terms applicable to serving beneficiaries. The special facility extinguishes with his dismissal and the defendant was right in applying the commercial rate of interest from the date of such dismissal. The trial court therefore rightly refused the plaintiff’s claim that he is entitled to enjoy the same conditions under which his staff loan was granted him as if he had never been suspended or dismissed. We affirm the trial judge’s refusal of same.
The last ground of appeal canvassed before us contends that the damages awarded in favour of the plaintiff are unreasonably low and tantamount to an erroneous exercise of the trial judge’s discretion in the circumstances. Considering the failure of the appeal on the foregoing grounds, the plaintiff is not entitled to any damages at all. The damages awarded by the trial court cannot be justified and are accordingly set aside.
We therefore find no merit in this appeal in its entirety and the same is hereby dismissed. We allow cost of five hundred Ghana cedis [GH¢500] in favour of Defendant/Respondent.
J.B.Akamba.
Justice of Appeal.
ANIM, J.A.:- I agree. S. Y. Anim
Justice of Appeal
KUSI APPIAH, J.A:- I also agree. F. Kusi Appiah
Justice of appeal
Counsel.
Dick K Anyadi for Plaintiff/Appellant.
Mr. Joseph Akyeampong of Zoe Akyea and Co. for Defendant/Respondent.
