ABUKARI UMAR & MOHAMMED HAFIZ vs NATIONAL HEALTH INSURANCE AUTHORITY (NHIA)
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    TAMALE - A.D 2018
ABUKARI UMAR AND MOHAMMED HAFIZ - (Plaintiffs/Appellants)
NATIONAL HEALTH INSURANCE AUTHORITY (NHIA) - (Defendant /Respondent)

DATE:  11 TH MAY, 2018
CIVIL APPEAL NO:  E12/70/2015
JUDGES:  V. D. OFOE JA (PRESIDING), A.M. DORDZIE JA, G. TORKORNOO JA
LAWYERS:  MOHAMMED ALHASSAN ESQ. FOR PLAINTIFFS / APPELLANTS
STEPHEN AZANTILOW ESQ. FOR DEFENDANT / RESPONDENT
JUDGMENT

 

A.M.DORDZIE J. A.:

 FACTS:

 By a writ dated 15th June 2015 issued at the Tamale High Court, the appellants herein Abukari Umar and Mohammed Hafiz commenced an action against the respondent, National Health Insurance Authority (NHIA) for the following reliefs:

a)    An order directing the defendant to restore the names of the plaintiffs unto its workers’ payroll to enable them receive their monthly salaries.

b)    Recovery of unpaid salaries from 1st May, 2014 to the date when plaintiffs’ names would have been restored unto the payroll.

c)    Interest on the unpaid salaries from 1st May 2014 to the date of restoration of plaintiffs’ names to the defendant’s payroll.

d)    General damages.

 

By their statement of claim setting out the facts backing their claim, the plaintiffs maintain that:

 

They are employees of NHIA who were employed on the 2nd of April 2012 as Assistant Claim officers and posted to Savelugu / Nanton District office. Their appointments took effect from 9th of April 2012.

 

They were transferred from Savelugu to Tamale in February 20 14 and in March 2014 their transfer was reviewed and they were sent back to Tamale. As employees they received salaries and allowances until April 2014 when their salaries were stopped.

 

They drew the defendant’s attention to the non-payment of their salaries and received several promises of steps being taken to rectify the situation. The plaintiffs suffered hardship and inconvenience due to the non-payment of their salaries hence their claims as indorsed on the writ of summons.

 

The defendant resisted these claims and made the following averments in their statement of defence:

i) The plaintiffs have never been employees of the defendant institution

ii) By a directive dated 18th of October 2012 the defendant had directed all regions and districts to halt all recruitments and payment of salaries of staff in the districts.

iii) The former Regional manager of the defendant Rashid Tanko issued appointment letters to the plaintiffs in breach of this directive. He backdated the appointment letters of the plaintiffs from October 2012 to April 2014 with the purpose of overreaching the system.

iv) Moreover the plaintiffs took the appointment while they were national service personnel and drew salaries between April 2012 and April 2014

v) The plaintiffs’ appointments are fraudulent and any actions the plaintiffs took in respect of the said appointments is void.

 

The defendant particularized the alleged fraud as follows:

 

Plaintiffs were fraudulently issued with appointment letters by defendant’s former Regional Manager, Rashid Tanko notwithstanding defendant’s directive dated 18/12/12 to all regional and district offices in Ghana upon the passage of its new Act (National Health Insurance Act, 2012 Act 852) to halt all recruitments and payments of salaries of staff in the districts

Defendant’s records indicate that 1st plaintiff applied for employment six months after he had received his appointment letter dated 2nd April, 2012 from the defendant’s former Regional Manager Rashid Tanko.

On or about April, 2012 1st and 2nd plaintiffs fraudulently obtained a temporary appointment letter dated 02/04/2012 from defendant’s former Regional Manager, Rashid Tanko whist they were national service personnel.

1st and 2nd plaintiffs drew salaries in the sum of GHC16, 119.52 each between April 2012 and April 2014 from the defendant even though they had full knowledge that they were not employees of the defendant.

 

The defendant therefore put up the following counter claims:

a)    A declaration that plaintiffs are not employees of the defendant.

b)    A declaration that all salaries drawn by plaintiffs from April 2012 to April 2014 were unlawful

c)    An order directed at 1st and 2nd plaintiffs to refund the sum of Sixteen thousand, One hundred and nineteen cedis fifty-two pesewas (GH¢16,119.52) each being salaries fraudulently drawn from April 2012 to April, 2014 to defendant.

d)    Interest on the aforesaid sum in (3) at the prevailing commercial bank rate.

e)    Cost on full indemnity basis.

 

In reply and defence to the counter-claim the plaintiffs made the following further averments:

The 1st plaintiff’s application for the job is dated 25th September 2012 the 2nd plaintiff applied for the job on 10th March 2012.

 

Though their appointment letters were back-dated they commenced work on the 4th and 5th of October respectively. More over at the time of their engagement and commencement of work the directive to halt recruitment had not been issued.

 

The plaintiffs admit that their appointment letters were back-dated but maintain that it was not their doing. When they received the letters and observed the back-dating they drew the then Regional Manager Rashid Tanko’s attention to it. He asked them to overlook the back-dating since the effective date of their appointment will be the date they assume duty.

 

They were indeed paid from the month they commenced work, that was October 2012. They did not take up the employment with the defendant whiles they were doing national service. They did not receive salaries from April 2012 therefore they are not liable to refund any.

 

They denied any fraud on their part and maintain that if the defendant’s officer indulged in any fraud in engaging them they are innocent of any such act.

 

Plaintiffs further pleaded that the defendants are estopped by conduct from recognizing them as their employees.

 

The trial judge, found that the plaintiffs obtained employment from the defendant fraudulently and therefore not entitled to any of their claims. The trial court granted the defendant’s counterclaims, and ordered the plaintiffs to pay salaries they took from the defendant for the period running from October 20 12 to April 2014 without interest.

 

The plaintiffs dissatisfied with the said decision of the High Court, brought this appeal praying this court to set aside the judgment of the court below and enter judgment in favour of the plaintiff / appellants.

 

Grounds of Appeal:

The appellants initially canvassed only one ground of appeal which is the omnibus ground that the judgment is against the weight of evidence adduced at the trial. Subsequently they filed additional grounds which are:

 

The trial judge erred in law when he held that the Appellants were not employees of the Respondent in spite of respondent’s representations that they were its employees.

 

The trial judge erred in law when he held that salaries paid to the Appellants from October 2012 to April 2014 were wrongly and illegally paid when the Appellants worked for the Defendant for the said period.

 

The trial judge erred in law when he held that the principle of estoppel could not be invoked to defeat the claim of Respondent that Appellants’ appointments were fraudulent, notwithstanding Respondent’s conduct amounting to a waiver of any fraudulent conduct of Appellants if any, by allowing appellants to continue to work for it in spite of its knowledge of the alleged fraud.

 

The trial judge erred when he held that the Respondent is not liable to pay salaries to the Appellants from April 2014 to the date of judgment in spite of the evidence that the Appellants worked for the period.

 

The trial judge erred when he held that the Appellants were appointed while they were service personnel contrary to the National Service Scheme Act 1980 (Act 426).

 

The trial judge erred when he held that the Appellants ought to have called Rashid Tanko as material witness to confirm the regularity of their appointments.

 

Apart from additional grounds (c) and (f) I believe the rest of the additional grounds could be considered under the omnibus ground; additional grounds (a), (b), and (e) therefore will be considered with the 1st ground of appeal.

 

Submissions

A summary of submissions of counsel for and against the appeal are as follows:

Learned counsel for the appellant relying on the principle laid down in the case of Djin v Musah Baako [2007-2008] SCGLR argued that the trial judge failed to consider certain material evidence on record which if he had considered, would have tilted the scale of justice in favour of the appellants. For example the trial judge failed to consider the explanation the appellants offered on the backdated offer of appointment letters exhibits AU4 and AU5, which is that when they noticed that their appointment letters were back dated they drew the attention of the Regional Manager to the anomaly but were told by him to ignore it for they will be paid effective from the day of their assumption of duty. Counsel’s submission is that this statement by the appellants was never challenged in cross examination the implied position is that the defendants have accepted it as the true state of affairs. The appellants therefore had no duty to prove the un-challenged statement by calling Rashid Tanko whom the trial judge described as a material witness.

 

It is a correct statement of the law to submit that failure of a party to cross-examine an opponent on a material fact means the said fact is not challenged see the case of Fori v Ayirebi [1966] GLR 627 where the Supreme Court held that “when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact”

 

However the evidence of 1st plaintiff on cross-examination as shown in pages 234 to 235 of the record of proceeding demonstrates that it is not very accurate to say that the plaintiffs were not cross-examined on the statement they alleged Rashid Tanko made in respect of the advice Rashid Tanko gave them; though it was not categorically put to the witness (that is the first plaintiff) that Rashid never gave that advise, there was a form of cross-examination on that fact on the record. Nevertheless the factual situation on record concerning the effective date of plaintiff’s employment with the defendant confirms the advice Rashid Tanko gave upon issuing the plaintiffs’ appointment letters. The more probable situation in the circumstances is that Rashid Tanko the then Regional Manager who engaged the plaintiffs gave the advice.

 

Other pieces of evidence the trial court failed to consider which led him to come to wrong conclusions in his judgement according to counsel, are the evidence of the defendant’s relationship with the plaintiffs as employees even after the detection of the alleged fraud. Counsel argued that for about five years after the discovery of the alleged fraud the defendant never disclosed to the plaintiffs any misconduct on their part but continued to accept their services as their employees. The representations made to the plaintiffs by the defendant fall within the ambit of S26 of the Evidence Act 1975 (NRCD323). The defendant cannot in the circumstance deny that the plaintiffs are their employees

 

A further submission counsel for the plaintiff/ appellants made is that the defendant failed to prove fraudulent misrepresentation against the plaintiffs. He relied on the case of Kisi v Kisi [1968] GLR 1120 holding (1)

 

He further urged us to hold that the plaintiffs having rendered services to the defendant institution are entitled to be paid for the work they had done. Counsel supported this argument with S10 of the Labour Act which made provision for the rights of a worker and the case of City & Country Waste Management Ltd v Accra Metropolitan Assembly [2007-2008] SCGLR 440

 

Counsel for the respondent in reply emphasized that the evidence on record established fraud against the plaintiffs therefore the judgment of the trial court cannot be disturbed.

 

The Evidence

The parties filed witness statements which they relied on as their evidence in chief. The 1st plaintiff testified for himself and on behalf of the 2nd plaintiff. According to him, the issuance of appointments are the prerogative of the Regional manager. The plaintiffs did not participate in issuing same, therefore are not part of fraud if any. The direction to halt recruitment came into effect on the 18th of October 2012. They had commenced duty on the 4th and 5th of October respectively and therefore were not caught by the directive of 18th October.

 

Plaintiffs further testified that if the defendant’s officer Rashid Tanko committed any offence in giving them appointment, their appointments were subject to approval by the defendants. The approval was given hence they were paid salaries from the date of commencement of work.

 

The defendant did not offer any reason for the non-payment of their salaries since May 2014. They rather gave them assurances that steps were being taken to correct the situation. Evidence of these assurances are in exhibits AU9, AU10 and AU13 which the plaintiffs exhibited with their witness statement.

 

Despite the fact that the defendant stopped paying them salaries they still worked for the defendant; they have been made Vetting Officers which involve vetting and reviewing claims as well as writing reports.

 

In further proof that the defendant still recognize them as their employees though they are not paid for the work they do, the plaintiffs testify that they applied for and got approval for their annual leave for 2014/2015 like any other employee of the defendant.

 

One George Yaw Amfo gave evidence as a representative of the defendant and said he was the Acting Recruitment Manager of the defendant from 2011 to 2013. According to the witness when the National Health Insurance Act, 2012 was passed to replace the old Act under which District Mutual Health Insurance Schemes were operated, All District Mutual Insurance Schemes were dissolved. As a result the District Mutual Insurance Schemes were directed to submit a list of their existing staff to the defendant to be incorporated in its pay roll. All Regional Managers were also directed as at 18th October 2012 not to recruit new staff. Names submitted by the managers were included in the defendant’s payroll.

 

The list submitted by the Northern Regional and District officers did not include the name of the plaintiffs. The defendant embarked on a nation-wide payroll verification exercise to authenticate the validity of the employment of all its staff.

 

In the course of the exercise it was revealed that the plaintiffs were fraudulently employed by the then Northern Regional Manager Rashid Tanko. According to the witness the defendant concluded there was fraud on the part of Rashid Tanko in recruiting the plaintiffs because the defendant’s employment records revealed that the plaintiffs were never employed by the defendant.

 

The witness further testified that though the plaintiffs were aware fully that they are not employees of the defendant, they have drawn salaries to the tune of Ghc16, 119.52 each from October 2012 to April 2014

 

Frederic Osei testified for the defendant as DW2 and said he is an audit officer in the internal audit directorate of the defendant. He was part of the team that carried out payroll verification exercise for the defendant institution; in the course of the exercise they found that: a) the plaintiffs’ appointment letters were issued contrary to the defendant’s directive restricting Regional Officers from recruiting new staff. b) The names of the plaintiffs were not included in the name of staff submitted by the manager of the scheme and the scheme’s pay voucher do not have their name from April 2012 to September 2012. c) At the time of his employment the 2nd plaintiff was still a national service personnel. d) The 1st plaintiff’s appointment letter preceded his application for employment and the 2nd plaintiff assumed duty 6 months after he was given the appointment.

 

According to this witness the conclusion the audit team came to in their report was that the plaintiffs were fraudulently engaged as employees of the defendant by the then Northern Regional Manager Rashid Tanko. They have also found that the plaintiffs unjustly and fraudulently drew salaries from the defendant institution to the tune of GHc16, 119.52 from October 2012 to April 2014.

 

Findings of the trial court

The findings made by the trial court upon examining the evidence as narrated above with the supporting documents is that the plaintiffs have obtained employment from the defendants through fraud. And therefore not entitled to their claims. The trial court granted the defendant’s counter-claim and ordered the plaintiffs to refund the salaries they earned from October 2012 to April 2014.

 

Issues

a)    The issues I identified to be determined in this appeal are:

b)    Whether the plaintiff / appellants obtained employment from the defendant respondent through fraud.

c)    Whether the defendant by their conduct can deny that the plaintiffs have been their employee. Whether the plaintiffs are entitled to the salaries they earned

d)    The trial court’s decision to dismiss the plaintiff / appellants claims is based on his findings that the plaintiffs committed fraud.

 

By Rule 8 (1) of the Court of Appeal Rules, C.I. 19 every appeal is by way of rehearing and this court is enjoined to re-examine the appeal record before it in totality and make up its own mind from the evidence on record. In so doing this court may interfere with the findings of the trial court. It is trite learning that an appellate court would be slow in interfering with the findings of a trial court; However in circumstances where the findings do not support the evidence on record the appellate court may step in to avoid miscarriage of justice. Thus the Supreme Court, in the case of Ackah v Kpegah [2010] SCGLR 728 held “Even if the findings of the trial court were based solely on the demeanor and credibility of the witnesses, it was still the primary duty of an appellate court in respect of a judgment based on findings of fact, to examine the record of proceedings in order to be satisfied that the said findings were supported by the evidence on the record. The appellate court in so doing is in the same position as a trial court to make its own inferences from the established facts as an appeal is by way of rehearing.”

 

In the instant case could it be said from the established facts that the defendant who alleged fraud against the plaintiffs had succeeded in proving same? In my view the defendant had failed in proving fraud against the plaintiffs. Upon examining the record of appeal, it would be observed that paragraphs (iii) (iv) and (v) of the respondent’s pleadings are at variance with the established facts. Not only that the defendant per the evidence of DW2 maintain the allegation of fraud against the appellants is based on an internal payroll verification exercise. The premise upon which the audit findings were made is also not consistent with the established facts. DW2 for example testified that the plaintiffs’ appointment letters were issued contrary to the defendant’s directive restricting Regional Officers from recruiting new staff. The names of the plaintiffs were not included in the name of staff submitted by the manager of the scheme and the scheme’s pay voucher do not have their names from April 2012 to September 2012. The established facts per the record are that the plaintiff’s employment was not in breach of the directive by the defendant to Regional Managers not to recruit new staff because the plaintiffs were engaged before the directive was given. This means Rashid Tanko’s act of back dating the appointment letters were not made to over reach the said directives. The appellants applied for the job in September 2012, Tanko in issuing them the appointment letters back dated same to April 2012. The effective date the appellants were recognized as employees and therefore paid salaries was October 2012. The directive to cease recruitment was given on the 18th of October 2012. By the witnesse’s own statement the appellant’s names were not on the pay roll between April 2012 and September 2012. There is therefore no basis for the defendant to make a claim to recover salaries earned for that period. That the plaintiffs’ recognized date of employment by the defendant was October makes their explanation that Rashid Tanko asked them to ignore the back dating of their appointments and that the appointments will only take effect on the day they assumed duty a more probable situation.

 

The 2nd appellant completed his national service in August 2012 and took up the appointment in October 2012. From the established facts therefore he did not take the appointment when he was still a national service personnel.

 

The trite legal position is that where fraud is alleged it must be pleaded and the details of the alleged fraud must be particularized clearly in the pleadings. In this case the particulars of the alleged fraud in the defendant’s pleadings is at variance with the established facts on the record. The position of the particulars of fraud are in a similar condition as what I have narrated above, they are not consistent with the established facts.

 

To make this point clearer I would reproduce the particulars of the alleged fraud as contained in the statement of defence. I may appear repetitive in so doing but I find it necessary to do so. The particulars are given as follows:

 

Plaintiffs were fraudulently issued with appointment letters by defendant’s former Regional Manager, Rashid Tanko notwithstanding defendant’s directive dated 18/12/12 to all regional and district offices in Ghana upon the passage of its new Act (National Health Insurance Act, 2012 Act 852) to halt all recruitments and payments of salaries of staff in the districts

 

Defendant’s records indicate that 1st plaintiff applied for employment six months after he had received his appointment letter dated 2nd April, 2012 from the defendant’s former Regional Manager Rashid Tanko.

 

On or about April, 2012 1st and 2nd plaintiffs fraudulently obtained a temporary appointment letter dated 02/04/2012 from defendant’s former Regional Manager, Rashid Tanko whist they were national service personnel.

 

1st and 2nd plaintiffs drew salaries in the sum of GHC16,119.52 each between April 2012 and April 2014 from the defendant even though they had full knowledge that they were not employees of the defendant

 

In respect of (a) above, the evidence has clearly established it that at the time the plaintiffs received their appointment letters the directives to the regions to stop recruitment had not been issued. Similarly at the time the plaintiffs assumed duty, dates officially recognized as the effective date of their engagement, which was 3rd and 4th of October, the directive to stop recruitment had not been issued. The directive was given on the 18th of October.

 

Number (c) of the particulars of fraud is also not totally true. Exhibit AU2, the first plaintiff’s National Service certificate proves that he did his national service in the year 2010/2011, the appointment was given to him in 2012 so it is not the case that the 1st plaintiff took an appointment while doing national service. In respect of the 2nd plaintiff he completed his national service in August 2012, he started work with the defendant in October 2012. The plaintiffs did not draw salaries from April 2012 as alleged in number (d) of the particulars of fraud.

 

Fraud is a crime, and statute clearly defines the degree of proof of same in both civil and criminal matters. Section 13 (1) of the Evidence Act, 1975 NRCD 323 provides “In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.”

 

The trial judge to my mind did not advert his mind to this requirement of the law when he came to the conclusions he came to in the judgment on appeal.

 

Rashid Tanko, who is not a party in this suit had his own undisclosed intentions when he backdated the appointment letters to the plaintiffs. The plaintiffs obeyed his directives to accept the appointment within a specified period. They backdated their acceptance letters too and were instructed to ignore the back dating since their appointment will only take effect in October. The defendant indeed only placed their names on the pay roll in October, the time they assumed duty, and they took salaries only from October 2012. The mens rea which is an essential ingredient in the proof of a crime is lacking in this situation. There is no evidence from which one can infer that when the plaintiffs backdated their acceptance letters they had any intention of defrauding the defendant or obtaining the employment through deceit.

 

With the evidence on record, I do not find that fraud has been proved beyond reasonable doubt against the plaintiffs. The conclusions the trial judge came to in the judgment the subject matter of this appeal I find not to be supported by the evidence on record.

 

The next issue is whether the defendant by their conduct can deny that the plaintiffs have been their employees.

 

Though the appointment letters offered the appellants a temporary positions they had worked with the defendant for more than six months and therefore could be regarded as permanent workers. Section 75(1) of the Labour Act, 2003 Act 651 provides: “A temporary worker who is employed by the same employer for a continuous period of six months and more shall be treated as a permanent worker.”

 

It is part of the evidence that the appellants as at the time of the judgment in the court below which was December 2016 were still working with the defendant.

 

From the various communications between the parties even at the time the plaintiffs’ names were deleted from the defendant’s pay roll, one can safely say that the defendant at all times regarded the plaintiffs as their employees. The immediate supervisors of the plaintiffs made efforts to have the problem of non-payment of their salaries resolved.

 

By exhibits AU9 and AU11 the plaintiffs wrote in July 2014 to their superiors seeking redress for the non-payment of their salaries. In response one Baba Sadique Zankawah wrote to one Baba Selby (exhibit AU10) which reads “I forward to you a memo written by two assistant officers at CPC Tamale concerning their unpaid May and June salaries. You recall the matter came up during your visit to CPC. I had also earlier discussed it with Director HR and Bennet and there seems to be some challenges. I would be grateful if we resolve the issue as soon as possible especially because the two officers have been punctual at work and very dedicated. More so, they commute to work from Savelugu each day.”

 

In response to this Baba Selby who obviously is the overall boss wrote exhibit AU12 dated 29th October 2014, which reads: “My attention has been drawn to the fact that you have not been paid your salaries again despite numerous interventions. I have spoken to Mr. Nartey. I am to send him a memo with everyone’s details and he will personally speak to Mr. Nunoo to get this resolved…………….. I apologise that this problem has dragged on for so long.”

 

It cannot be denied that the plaintiffs at all material times, (and even after the payroll auditing DW2 testified revealed the anomaly in their engagement), were given the impression that they were staff of the defendant institution. The evidence has it that the auditing was done in 2013. In these circumstances the defendant is estopped by the provisions of the Evidence Act from denying that the appellants were their staff; for they have made them believe that they had been regularly engaged as employees of the defendant institution, and that the issue of non-payment of their salaries would be resolved.

 

S26 of the Evidence Act, 1975 NRCD 323 reads: Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between “

 

The final issue I have set down to resolve in this appeal is whether the plaintiffs are entitled to the salaries they earned. The defendant benefitted from the services the plaintiffs rendered to the institution from October 2012 until April 2014 when their names were deleted from the payroll of the defendant upon the allegations of irregularity in their engagement. The plaintiffs I find are entitled to receive payment for the services they rendered the defendant. I base this finding on the decision of the Supreme Court in the case of City & Country Waste Ltd. v Accra Metropolitan Assembly [2007 – 2008] SCGLR 410. The court in that case held among other things that it is an unjust enrichment for a party who had benefited from the services of another to retain the benefits. The plaintiffs are entitled to the salaries they received from the services they rendered to the defendant from October 2012 to April 2014.

 

We have no basis to order that their names should be restored to the payroll if their employers found the procedure of their engagement to be irregular.

 

The appeal succeeds in part, the judgment of the court below is hereby set aside in part. What the plaintiffs are entitled to is their earning from October 2012 to April 2014. All other claims of the plaintiffs and the claim of the defendant are hereby dismissed.