Ofosuhene Vrs The Trustees Being Sued in Representative Capacity on Behalf Of Apostolic Church Of Ghana. (NO. H1/274/2004) [2005] GHACA 9 (04 February 2005);
IN THE SUPERIOR COURT OF JUDICATURE,
IN THE COURT OF APPEAL
ACCRA - GHANA
CORAM CRIMINAL APPEAL
AKOTO-BAMFO-BAMFO [PREDIDING] JA NO. H1/274/2004.
ASARE KORANG,JA 4TH FEB., 2005.
OSEI,JA
PASTOR W.K. OFOSUHENE … PLT/RESPONDENT
VRS.
THE TRUSTEES BEING SUED IN
REPRESENTATIVE CAPACITY
ON BEHALF OF APOSTOLIC … DEFTS/APPELLANTS
CHURCH, GHANA, ACCRA
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J U D G M E N T
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ASARE KORANG, J.A. - This is an appeal against the judgment of Amoakwa Boadu, J, sitting in the High Court, Nkawkaw, in which forum the Plaintiff/Respondent (Respondent for short) had sued the Defendants/Appellants (Appellants for short) for
“Damages and compensation for Unlawful Termination
of his appointment and Defamation of his character.”
The learned trial judge entered judgment in favour of the Respondent on his claim as follows:-
For unlawful termination of appointment ¢20 million and
as damages for defamation of character - ¢20 million
costs of ¢7 million were also awarded against the Appellants.
Against that judgment, the Appellants have appealed on the following grounds:
(a) The question of damages awarded by the trial judge to the
Plaintiff/Respondent is legally unjustified in the face of a
long line of decided cases on the award of damages for
unlawful termination of appointment.
(b) The judgment with regard to the liability of the Defendant/
Appellant to the Plaintiff/Respondent for defamation is against
the evidence adduced at the trial.
(c) The costs awarded to the Plaintiff/Respondent is excessive…”
Additional grounds of appeal were filed by the Appellants.
They read:
“ 1. The learned trial judge erred when he held that the
alleged defamatory words were published by members
of the Apostolic Church – Ghana.
- The trial judge erred when he held that ‘all and sundry the
Church had concluded that the Plaintiff’s termination was due
to promiscuity which was levelled against the Plaintiff.’
- The trial judge erred when he held that the Defendant/
Appellant by not copying the termination letter to the local
Church had created a forum for defaming the Plaintiff/
Respondent.
- The trial judge erred when he held that the words allegedly
heard by PW1 and PW2 must be attributed to the Defendant/
Appellant.
- The trial judge erred when he held the Defendant/Appellant
liable for defamation as on the evidence the Plaintiff/
Respondent did not prove that he had suffered any damage as
a result of the defamation.”
In view of the issues raised in ground (b) of the original grounds of appeal and in all the additional grounds of appeal, I think it is necessary to examine the evidence led in the court below.
By a letter dated June 16, 2000, the appointment of the Respondent as a Pastor of the Apostolic Church was terminated, the reason for the termination being the persistent absence of the wife of the Respondent from his station which according to the Appellants had adversely affected the Respondent’s performance as a Pastor.
The Respondent was first engaged by the Appellants as an “encouraged” Pastor in 1989. He was appointed as an Assistant Pastor in 1991 and served at various stations in the Eastern Region. His last station was PAKYI in the Ashanti Region where the letter terminating his appointment was handed over to him.
The Respondent insisted that inasmuch as the reason given for the termination of his appointment was that in the course of his employment with the Appellants he had not, for a considerable period been living with his wife, the termination was wrongful. This was so because according to the Respondent, if this was the custom in the Appellant’s church, then it was a custom more honoured in the breach than the observance.
The Respondent cited, as an example the former General Secretary of the appellants church who was in Europe whilst his wife was in Ghana. The former past President of the appellants church was in Canada whilst his wife remained in Ghana. Then again one Pastor Ayitey was in Europe leaving his wife behind in Ghana.
The Respondent said when the letter terminating his appointment was read in church, confusion broke out in the church and when the townsfolk heard of it, they gave it various subjective interpretations.
It appears it was the construction placed on the termination of his appointment that impelled the Respondent to sue for Defamation because he explained that he felt ashamed and disgraced and could not go out. Also he felt that as a Pastor who had been sacked everybody thought he had committed an offence of some sort. And his life became miserable and zigzag whatever that meant.
It is important to note that the Respondent did not state or disclose the nature of the offence people said he had committed to merit being considered a disgrace. It was two of his witnesses who revealed the kind of defamatory statements being made against the respondent. One of the witnesses was the respondent’s daughter-in-law who testified that she heard some boys in Pakyi and the congregation of Appellants church alleging in Pakyi town that the respondent was lecherous or in Twi “AKODIMAA.”
The respondent’s daughter-in-law narrated what she had heard to her husband as she found the allegation to be a disgrace to the respondent and his family.
The respondent’s second witness was his son’s friend. He said he went to Pakyi with respondent’s son and while in a vehicle on the way to Pakyi he heard some people carrying on a discussion about the respondent that the respondent had been dismissed as a Pastor because he was promiscuous, that is, he was flirting with women. Again at a well in the town of Pakyi where respondent had gone to fetch water, he heard the same accusation being repeated against the respondent. And the respondent’s second witness concluded that what was being said of the respondent, a man of God was bad and unhelpful.
Having heard these pieces of evidence on the subject matter of the claim for defamation, the learned trial judge concluded:
“The evidence shows that the words published were said by
members of the church.”
I have looked through all the evidence given and the pleadings and nowhere did I find a complaint that members of the Appellants church uttered any defamatory words against and in respect of the Respondent.
On the other hand in their evidence, the respondent’s witnesses stated that the words spoken of the respondent which were allegedly defamatory were uttered by some boys in Pakyi, or by members of Appellants congregation in Pakyi town, passengers on a vehicle and people near a well.
This is in contrast to paragraphs 9, 10 and 11 of the Respondent’s Statement of Claim where he pleaded:
“9. Plaintiff says the manner in which he was relieved of his
post has caused uncertainty in the mind of the local church
members who do not know the reason for the hasty decision
to dispense with the services of the Plaintiff.
- That from the foregoing, the Plight of the Plaintiff as seen by
the people of Pakyi is that he Plaintiff might have misconducted himself, hence the sudden termination of his appointment which to
all and sundry tantamounts to disgrace.
- From this position, Plaintiff says his image as a Pastor and the
respect he held in the town have become tainted and looked on
by people with counterfeited glee.”
In spite of the averment in the Respondent’s pleadings that members of the local church at Pakyi had no knowledge of the reason why the Respondent had been asked to leave their church and that it was against the people of Pakyi that the Respondents was aggrieved, the learned trial judge made the following finding:
“….all and sundry, the CHURCH had concluded that the
Plaintiff’s termination was due to promiscuity which was
levelled against the Plaintiff. In my view it was the Defendant
Who created the forum for such a thing.” (Emphasis mine).
In the letter terminating the Respondent’s appointment, the reason given was that the church could not tolerate a Pastor who lived and worked at a station without his wife and that was decisive in relieving the Respondent of his ministry. There was nothing in the letter to the effect that the Respondent had been stripped of his appointment because he was promiscuous.
The finding therefore by the trial judge that Respondent’s appointment was terminated because he was a womanizer or was promiscuous was not borne out by the evidence on record and the pleadings.
Firstly, the Respondent himself did not testify to that effect because no one told him to his face that he was promiscuous. It was the letter written to him which he says gave him cause to feel disgraced and shamed because it diminished his image as a Pastor or a man of God. But was the mere termination of his appointment as a Pastor defamatory? I would say Not.
Secondly, the argument or finding that the church had concluded that the Respondent had been compelled to leave the Appellant church’s employment because he was a womanizer, and that it was the church that created a forum for the allegation, does not find favour with me.
Even if the members of the Appellants church uttered any words defamatory of the Plaintiff or at all, where was the evidence that those defamatory words originated or emanated from the Appellants and that they encouraged or counseled or provoked members of their church to publish them?
There was no such evidence. And yet the trial judge held:
“The words published were said at the precincts of the church
or in front of the church by members of the church, and the words
were attributed to the Plaintiff which impugned his character.”
This is a finding that clearly is not based on the knowledge and comprehension of the learned trial judge because it is not founded on the evidence on record or an any portion of the proceedings.
On this conclusion arrived at by the trial judge, the question that readily comes to mind is this:
“how is it that words allegedly, defamatory uttered or published
in a vehicle on its way to Pakyi, or beside a well at Pakyi or in
the town of Pakyi itself on the evidence, be said to have been
published at the precincts of the church or in front of the
church at Pakyi by members of the church? Did the trial judge
have any record before him to show that he visited the location
where those words were published or that credible or any
witnesses said the locus of the publication was the church
precincts or in front of the church?
If I may be permitted to be a bit harsh, I think this finding by the trial judge was a figment of his own fertile imagination. If the Respondent had any sustainable cause of action in Defamation at all, then he ought to have unambiguously identified those church members who published those words he considered defamatory of him and sued them instead of the Appellants herein.
Without examining the submissions made in respect of the ingredients of the tort of defamation or the proof thereof, the relief sought by the Respondent against the Appellants for defamation is dismissed. The appeal against the finding by the trial court that the Appellant are liable in defamation to the Respondent is upheld and the damages awarded against the Appellants for defamation set aside.
Turning to the claim for damages for wrongful termination of appointment, the learned trial judge appeared to have agreed with the following legal proposition expounded in MORGAN V. PARKINSON HOWARD LTD. [1961] GLR 68 at p. 70 and which the Appellants relied on in their address submitted to the trial judge.
It reads:
“in a claim for wrongful dismissal, the Plaintiff must prove the
terms of his employment and then prove that his dismissal is in
breach of the said terms or that it contravenes some statutory
provisions for the time being regulating employment…..”[Emphasis
supplied].
Since the Respondent’s employment letter was silent on the terms and conditions of his employment, the trial judge, agreeing with the submission of counsel for the
Respondent, had recourse to and found justification in the Labour Decree 1967 {NLCD 157} in finding that the termination of Respondent’s employment by the Appellants was wrongful.
Relying on Section 33(2) and (5) of the Decree, which relate to the determination of employment from month to month
and determination where the worker has been in continuous employment for a period exceeding 3 years, the learned trial judge held that since the Respondent had worked from June 1991 to 18th June 2000 when his letter of termination was handed over to him, a period of more than nine (9) years, the Respondent was entitled to be given one month’s notice of termination of his employment. And the failure to give him such notice in his letter of termination rendered the termination of Respondent’s appointment unlawful.
If the learned judge had cared to read carefully all the provisions of the Decree {NLCD 157} he would have discovered that it was inapplicable to the facts and circumstances of the action before him because Section 76 makes it clear that the Decree shall apply to employment by the Republic.
The Appellants are therefore not bound by the terms of the Decree but by the private and internal arrangements made by them to govern the relationship between them and persons employed by them to build their capacity and to work to develop and enhance their prospects.
The finding therefore that based on the Labour Decree 1967 {NLCD157} the employment of Respondent was unlawfully terminated was itself wrong and erroneous and the appeal against the award of damages for unlawful termination of appointment is upheld. The award of damages for unlawful termination of Respondent’s appointment is set aside.
There was no legal justification for entering judgment in favour of the Respondent and the reliefs sought by him in the trial court are dismissed. The appeal against the judgment of the High Court, Nkawkaw is allowed and the damages and costs awarded set aside.
I award ¢4 million as the costs of this appeal.
- ASARE KORANG
JUSTICE OF APPEAL
I agree. V. AKOTO BAMFO [MRS]
JUSTICE OF APPEAL
I also agree. J.A. OSEI
JUSTICE OF APPEAL
COUNSEL - I.K. ANTWI FOR APPELLANTS.
E.A. ANSAH FOR RESPONDENT.
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