IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
ALEX ONUAMAH COLEMAN AND DAVID KOOMSON vs. NEWMONT GHANA GOLD
AND EMMANUEL ATSIAFU AND 6 OTHERS VS. NEWMONT GHANA GOLD
DATE: 24TH OCT, 2017
SUIT NO: H1/23/2017
JUDGES: AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A.
TORKORNOO (MRS), J.A.
Three cases were consolidated into one suit and adjudged. On 7th December 2009, Emmanuel Atsiafu, Ernest Korang Yeboah, Fred Sarbah, Ebenezer Mills and Andrew Hayford (for the purposes of clarity in this judgment, hereinafter referred to as 1st to 5th Respondents respectively), jointly commenced an action against Newmont Ghana Gold, the Appellant. On 15th December 2009, Alex Onumah Coleman and David Koomson (hereinafter referred to as 6th and 7th Respondents) commenced a second suit against the Appellant. On 8th January 2010, Isaac Kongetey, Isaac Boadu and David Awelgiyah (Kongetey and Boadu are hereinafter referred to as 8th and 9th Respondents) started the third action against the Appellant. The trial high court heard the cases together.
The final claims that the court had to adjudicate for the nine Respondents were essentially the same. They comprised a claim for a declaration that their purported interdiction and subsequent dismissal of the Plaintiffs from the defendant’s employment is wrong in law; a claim for general damages for wrongful dismissal and costs. The final amended writ of summons and claims for the 4th Respondent Ebenezer Mills prayed for reinstatement and payment of ‘all monies due the 4th Plaintiff running from the alleged period of interdiction and summary dismissal to be paid to the 4th Plaintiff’
The averments of the Respondents in their Statements of Claim were as follows:
At the time of the suit, 1st Respondent was employed as a plant mechanic technician, 2nd Respondent as a Mechanical Technician, 3rd Respondent was a multi skilled operator, 4th Respondent as Mechanical Technician, and 5th Respondent was a mechanic/welder. The 6th and 7th Respondents were also multi skilled operators. The 8th Respondent was a grinding operator, and 9th Respondent was a control room trainee. Awelgiyah was a leading hand.
In their pleadings, the 1st to 5th Respondents contended that the 1st Respondent had developed sight problems as a result of his work schedule. The 2nd Respondent had also developed ear and heart problems. Again, on 25th August 2009, a white employee called David Dennison threw a new valve behind the 2nd Respondent which nearly injured the 2nd Respondent, and he reported this conduct to the maintenance management. It was after this incident that the five Respondents were served with a Notice of Interdiction for the following offences contrary to Appendix B and C of the Collective Bargaining Agreement between the Appellant Company and the Ghana Mine Workers Union of TUC which the Appellants belonged to:
-theft of gold bearing material and/or unauthorized removal of gold bearing material, -fraud and deliberate falsification of records;
-behaving negligently resulting in significant loss or damage to company equipment of property;
-lying to a supervisor and misuse of levels of authority.
They were later served with invitations to disciplinary committee hearing where they denied the charges leveled against them. According to the Respondents, the Appellant Company could not prove its case against them at the disciplinary hearings. They were however served with summary dismissal letters in which the Appellant stated that they were guilty of conspiring with others to steal gold bearing material and theft of gold bearing material from their process plant.
4th Respondent presented an amended statement of claim after leave was given to him. He contended that he was taken into a room by security officers on 12th September 2009 where he was interrogated by one man who identified himself as an investigator. The investigator wrote material down and recorded the interrogation. He denied involvement in theft of gold bearing material. The investigator asked him to sign what he had written on the sheet without being allowed to read through the sheet. He was ‘coerced’ by the investigator to sign it. After signing the written record, the investigator gave him an interdiction letter. He appeared before a disciplinary committee meeting where he denied the charges and the charges could not be proved. He was however served with a summary dismissal letter.
6th and 7th Respondents presented essentially the same case above without the preface of information on any pre-existing illnesses or issues with other employees. They were also given notices of interdiction with the same charge, invited to a disciplinary committee meeting where they denied the charges and alleged that the Appellant Company could not prove its case. They were given letters of termination and summary dismissal for alleged conspiracy to steal and stealing gold-bearing material from the process plant.
In their pleadings, the 8th and 9th Respondents presented essentially the same case with a variation similar to that of 4th Respondent. They contended that on 12th September 2009, they were interrogated by the officers of Appellant Company about an alleged theft of gold bearing materials which they all denied. They gave statements to that effect.
It was their case that they first received threatening phone calls, then were invited to a meeting at which they were required to give contact numbers for relatives because they were told that there was a possibility that they would not return home. At individual meetings, and surrounded by a massive number of security officers, they met a man who identified himself as an investigator who hit them with a big stick in anger when they denied being liable for the acts set out in their interdiction letters. Eventually, he narrated a story and asked them to repeat while he records in writing. The same narrations were also captured on tape. In fear of their lives, the 8th and 9th Respondents averred that they complied and repeated the narration, which was written down.
It was after this that they were invited to a disciplinary committee meeting where they denied knowledge of the alleged theft and requested for proof of the allegations. Their case is that no proof was given to them. They were then served with summary dismissal letters. The conclusion of all Respondents was that the summary dismissal was wrongly carried out because they were not guilty of the charge leveled against them.
The Appellant denied the cases set out. In its final amended Statements of Defence, it presented virtually the same defence to all the three suits. Its case was that all the Respondents were dismissed after they were charged with the offence of stealing gold bearing materials and conspiring with others to steal gold bearing materials from the defendant’s process plant. They alleged that after investigations and hearing, the veracity of the charges was established. Further, the Respondents participated in the hearings and were all given opportunities to defend themselves against the charge preferred.
At the end of the trial, it was the reasoning of the trial judge that ‘the guiding thread and trend against the Plaintiffs (Respondents) hinged on them being thiefs. The pivotal consideration was in the criminal domain’. He disagreed with the Appellants that with the primary accusation against the Respondents being in the criminal domain, the company could do the following - ‘acting by itself all alone arrested the alleged criminals, marched them from their place of work assigned them by Newmont Ghana Gold, took them away for interrogation under Newmont Ghana Gold, then before an investigator appointed by Newmont Ghana Gold who is its employee, then Newmont Ghana Gold set up its own committee (or court for that matter), consisting of its own employee as judges tried the alleged criminals, their own employees and found them guilty for stealing according to its own understanding of the criminal law of stealing and proceeded to punish the Plaintiffs as criminals all in an ugly contravention of the veritable laws of Ghana and the Constitution’.
His judgment on this reasoning was that this process ‘was wholly incompetent and rendered everything planked thereon ineffectual’ and the decision to dismiss the `Plaintiffs was void because it was illegal and or irrational’. He found that the Appellant’s witnesses who had been on the disciplinary committee had discredited themselves regarding the statements they relied on to find the Respondents liable. He held that the disciplinary committee hearing was irrational and an administrative action that is susceptible to control, and so must be made subject to judicial review.
He also found that the creation of the second set of statements in which the Respondents admitted culpability for wrong doing was marked with attacks against them so that they would sign statements ‘coined by the investigator and aimed at incriminating the Plaintiffs through false and induced confession statements’. His judgment was that the statements were unlawfully and wrongly procured, breaching statutes and rules for procuring confession statements and the human rights of the Respondents and therefore could not be relied on. He concluded by saying ‘I nullify the effect of all the confession statements placed before the administrative or disciplinary hearing committee.’
On the issue of whether there was actual proof that the Respondents had stolen gold bearing material, the trial judge held that there was not a shred of evidence leading to a finding that the Respondent had been involved in theft of gold. He referred extensively to video footage that had been made available on a locus visit during the trial and enquired whether ‘if an employer ‘videos’ an employee and his activities do not accord with the employers directions, that would make the employee a thief’.
His conclusion was that the dismissals were unfair and contrary to the Labor Act (quoted without citation, but presumably Labour Act 2003 Act 651). This is because the offences of ‘conspiring with others to steal gold’ and ‘stealing gold’ required that the Respondents were either caught with gold or gold bearing material under circumstances that lead to only one conclusion - that they had dishonestly appropriated the property of the Appellant contrary to Section 124 and 125 of the Criminal and Other Offences Act 1960 Act 29 and Section 122 (2) of the Criminal Procedure Code 1960 Act 30.
His conclusion was that the Respondents were entitled to a declaration that they in effect remain employees of the Appellant Company. At the same time, he held that the Respondents ‘were entitled to damages for losing their right to earn a living’ and were entitled to compensation for the losses sustained by them.
He awarded the Respondents
-all the salaries that have been denied them from their date of interdiction
-The salaries to be paid should be the full salary at the present level which they would have earned but for the irrational intervening act of the defendant
-One year full salary at current levels as damages for defamation, for losing the right to earn a living
-Payment of all allowances and other benefits and bills that would have come to them if they were in employment
-Costs of 15,000 GHC to the Respondents.
It is against these findings, holdings and orders that the Appellant has appealed.
The original grounds of appeal are:
1. That the judgment is against the weight of evidence adduced at the trial.
2. That statements and conclusions of the trial judge were prejudicial, without legal basis and unsupported by any evidence presented before the court or legal authority.
3. That the trial judge erred in law by applying rules of criminal procedure and standard in assessing disciplinary proceedings undertaken by the Defendant/Appellant against the Plaintiffs/Respondents and thereby coming to the conclusion that the dismissal was unlawful and unfair.
Additional grounds of appeal filed are that:
a. The learned judge erred by subjecting to judicial review the decisions of the Disciplinary Committee of the Defendant/Appellant company in respect of the Plaintiffs/Respondents and consequently declaring the same void.
b. The learned judge erred in purporting to set aside “confession” statements made by the Plaintiffs/Respondents in internal disciplinary proceedings held in respect of alleged misconduct on their part.
c. The learned judge erred in holding that the Plaintiffs/Respondents effectively remained employees of the Defendant/Appellant and consequently ordering payment of their salaries from the period for their interdiction.
d. The learned judge erred in awarding the Respondents/Appellants damages for defamation when they had neither claimed, pleaded facts relevant to, nor led evidence in support of such claim.
e. The damages awarded by the learned judge in favour of the Plaintiffs/Respondents were excessive, punitive and based on legal authorities and principles not applicable to the case.
Since each appeal is a rehearing, the duty of this court is to consider the totality of the pleadings, testimonies and documentary evidence within the tenets of applicable law. After doing so, it is not difficult for us to uphold this appeal and agree with all the arguments of Appellant counsel because of critical fault lines in the prosecution of the case and the judgment, and the weight of the evidence.
Grounds A and C of the additional grounds of appeal were argued together. It was the argument of Appellant counsel that that the learned trial judge erred by subjecting to judicial review the decisions of the disciplinary committee because it was a private enterprise whose relationship with the Respondents was governed by the law of contract and not a public or administrative body whose actions can be quashed by a court with public law remedies. She argued that the termination of employment in issue can best be held to be in breach of contract but a court cannot properly declare it null and void and purport to quash it. She cited Bani v Maersk Ghana Limited 2011 2 SCGLR 796 where the Supreme Court stated per curiam that judicial control of administrative action is part of public law and the courts have not been set up to exercise oversight over the administrative decisions of private enterprises. She also cited Lagudah v Ghana Commercial Bank 2005-2006 SCGLR 388 where the Supreme Court per Date-Bah JSC had held that it would be inappropriate to fetter a commercial bank carrying on its normal business in a commercial setting with administrative concepts and constraints, unless they are imported by contract or by statutory or constitutional provisions.
We agree with counsel in the legal tenets of the above argument. The judgment reflected a great deal of confusion regarding the concept and principles on judicial review. As such, although the trial judge could not have conducted an exercise of judicial review in this suit, the judgment nevertheless reflected the misapprehension that this was the exercise he was undertaking.
There is a distinct difference between judicial review of administrative actions and the conduct of a trial as part of the general mandate of the courts. The first is a special jurisdiction given to higher courts over the administrative and quasi-judicial decisions of public bodies, inferior tribunals, and courts below them. The second is exercised in the general judicial process of adjudicating disputes generated by any action to determine if it conforms with law.
The judicial review jurisdiction of the High Court is catered for under Order 55 of the High Court (Civil Procedure) Rules 2004 CI 47. As stated in sub rule 1(b), it consists specifically of orders of certiorari, prohibition, mandamus, quo warranto or injunction sought against persons in public office or an application for any other injunction. Order 55 is headed APPLICATION FOR JUDICIAL REVIEW; Cases appropriate for application for judicial review. Rule 1 reads
1. An application for
a. an order in the nature of mandamus, prohibition, certiorari or quo warranto or
b. an injunction restraining a person from acting in any public office in which the person is not entitled to act; or
c. any other injunction shall be made by way of an application for judicial review to the High Court.
Thus such actions can only be commenced by an ‘application for judicial review’ under Order 55 rule 1 and not by writ for the settlement of substantive issues as occurred in this case. Apart from the incapability of this action passing for an application for judicial review, the judgment reflected the misapprehension by the court that he could mix the exercise of judicial review with his general jurisdiction.
Thus while the trial Judge purported to ‘nullify’ the proceedings of the disciplinary committee and declared its decisions void – in a manner that a court would quash a decision brought to court for judicial review - he went on to grant many other reliefs that were not directed at the disciplinary committee. These included damages for defamation and unfair dismissal against the company itself.
The trial judge arrived at the finding that the work of the disciplinary committee was ‘void’ and a ‘nullity’ by purportedly relying on the authority of the Court of Appeal’s decision in Osei Kwaku & Another v Georgina Konadu Kusi (Civil Appeal No H1/11/2005 22nd April 2005.
According to the trial judge, that case settles the position that in situations where a party is accused of a crime, the investigation and determination of that offence is the preserve of the criminal justice system and not a body such as a disciplinary committee of the Appellant Company. He quoted ostensibly from page 6 of that judgment the statement per Gbadegbe JA (as he then was) that ‘since the section on which the Appellants relied created a criminal offence that is to be triad summarily, then for the court to have entertained it the matter must have come before it in compliance with the provisions contained in the Criminal Procedure Code, Act 30 on summary trials...’
From his appreciation of the decision in the Osei Kwaku case, he went on to make the finding on page 7 of the judgment that ‘Newmont Ghana does not have the capacity to try criminal offences’ and this was the preserve of the Attorney General under Article 88 (3) of the 1992 Constitution. He then held that the process that went on before the committee to try the Respondents as criminals was wholly incompetent and rendered everything planked on same as vexatious.
It does not take much to appreciate the error in this line of reasoning, finding and holding. First, as pointed out by Appellant counsel in their submissions on ground 3 of the appeal found on page 19 of the submissions, we are also of the considered view that the Judge’s consideration of the case of Osei Kwaku & Another v Georgina Konadu (cited supra) misses the ratio of the case. This is because in that case, the issue the court had to resolve required the determination of the capacity of the Applicants/Appellants therein to commence the action at all, and also whether they could commence it via the procedure used.
They had commenced their action by originating motion pursuant to the Intestate Succession Law PNDC Law 111 for an order punishing the Respondent in that action for intermeddling with the estate of a deceased person. The Respondent in that suit resisted the motion on two grounds - that the Applicants/Appellants’ alleged capacity as executor of the estate in issue was being challenged in a different and pending action, and that the section of PNDCL 111 under which the Appellants issued the processes in the high court created a criminal offence. Thus since the Appellants were not the Attorney General, they could not initiate proceedings which were in their nature criminal.
The High Court dismissed the motion on the first ground and the judgment was silent on the second ground. The court of appeal dismissed the appeal. The relevant decision concerns the second point raised both in the high court and in the appeal by the Respondents regarding the competence of a proceeding that was in nature criminal because it invoked a provision of statute that created a criminal offence. It is in this context that the court per Gbadegbe JA (as he then was) held that since the relevant section (Section 17 of PNDC Law 111) ‘on which the application is based creates a crime, I think that the Appellants could not by themselves have initiated what was in its essence criminal proceedings, the power to do so having been vested in the office of the Attorney General…..for the court to have entertained it the matter must have come before it in compliance with the provisions contained in the Criminal Procedure Code, Act 30’
The ratio of the Osei Kwaku case cited supra did not do more than affirm the position that proceedings in court for the prosecution of criminal offences can only be done as provided for by Article 88 of the Constitution and the Criminal Procedure Act 30.
But it does not articulate a general principle that any person who does not seek a criminal remedy before a court is precluded from even investigating conduct that is criminal in nature in order to take a decision regarding that conduct because only the criminal justice system can determine whether criminal conduct has occurred. If that were the case, fraud, unlawful harm and any number of acts that are actionable in both civil and criminal proceedings would only be confined to the criminal justice system and no organization could set up a committee to determine if such an offence had taken place within its ranks, neither can any civil suit be undertaken where criminal offences are in issue. But this is not so. It is trite knowledge that a party who has suffered from conduct which is criminal in nature – such as fraud, harm and misappropriation of their property, can undertake any civil action for the purpose of seeking other available remedies.
I believe Appellant counsel put the puzzling posture of the Judge in context when she said in paragraph 48 of their submissions that ‘Surely, it cannot be the case that unless a person suspected of stealing at the workplace or some other such act of misconduct with a criminal element is prosecuted by the Attorney General and tried in a court of law, he cannot be taken through disciplinary hearings by his employer and dismissed on the basis of disciplinary hearings’.
We agree that the holding of the learned trial judge that the proceedings were wrong on account of ‘illegality’ and his purported reliance on the Osei Kwaku case (cited supra) for establishing that position is wrong in law.
Second, on the particularities of this case, the court was very wrong in his fixation on the committee determining the ‘crime of theft’ because the interdiction letters directed that the Respondents were being interdicted and investigated on various charges ranging from
-theft of gold bearing material and/or unauthorized removal of gold bearing material, -fraud and deliberate falsification of records;
-behaving negligently resulting in significant loss or damage to company equipment of property;
-lying to a supervisor and misuse of levels of authority.
Only the first of these charges dealt with theft. Though the reasons for dismissal only focused on stealing, it would seem that this is the reason why the trial judge latched on only the first charge that the committee dealt with and became totally oblivious of the remaining charges. He should have appreciated that to pronounce the proceedings of the disciplinary committee void because it considered the charge of stealing – on account of it being criminal in nature - is to demand that the committee work with incomplete considerations. Such a posture can only lead to miscarriage of justice, even if the court’s demand was legally sustainable. But it is not.
In Koglex Ltd (No 2) v Field (2000) SCGLR 175, the Supreme Court reviewed extensively the range of situations where an appellate court would be justified in interfering with the findings of fact of a trial court. They include where the said findings are clearly unsupported by evidence on record: or where the reasons in support of the findings are unsatisfactory, or where the trial court has failed to draw an irresistible conclusion from the evidence, or where the findings are based on a wrong proposition of law, such that if that proposition is corrected, the finding disappears and more. I find that the four factors above apply to the case before us. The Collective Bargaining Agreement between the company and unionized workers provided for such investigation, and the range of issues investigated went beyond criminal law issues.
Attention must also be drawn to the fact that by Article 8.2 (c) of the CBA (tendered as exhibit D), the disciplinary committee’s mandate was only to ‘recommend an appropriate disciplinary action to the respective functional department head.’
Article 8.2 (d) reads:
‘the functional department head may decide to take a different disciplinary action to that recommended by the committee following discussion with the committee. The disciplinary action prescribed by the functional department head will be final’
This meant that even if the court could ‘nullify’ the disciplinary committee’s work on any ground, the court still had to be mindful of the fact that the work was only advisory and could not ‘plank’ or impact on the validity or otherwise of the final summary dismissal letter that followed. He should have appreciated that the dismissal letters came from the management of the company, and not the disciplinary committee.
To conclude on Ground C, we have to consider whether the termination was void which would allow the declaration that the Respondents remained employees of the Appellant Company, rather than persons whose employment had been validly terminated, whether fairly or wrongfully.
Appellant counsel submitted in paragraph 14 of her submissions that ‘it is only where there is a public element in a wrongful dismissal case that the dismissal can be held to be null and void and not in a case of private employment where either party can terminate the employment contract by notice to the other.’
She cited the Supreme Court decision in Ghana National Trading Corporation and Another v Baiden 1991 1 GLR 567 where the court held that the termination of the Plaintiff’s employment contravened constitutional provisions and was therefore a nullity. She also cited Nartey-Tokoli v Volta Aluminium Co Ltd 1989-90 2 GLR 341 where the court once again found that the process of dismissal of employees violated a legislative provision.
We agree with the essence of these submissions, though we must point to the scope as going beyond ‘public elements’ and draw attention to the fact that the cases cited point to the need to protect any one – public or private enterprises alike - against violations of statute and constitutional provisions, and not merely the presence of ‘public elements’. This was also essentially the reasoning of Date-Bah JSC (as he then was) in Lagudah v Ghana Commercial Bank (cited supra) as he considered the effect of the decision of the Supreme Court in Ghana Commercial Bank v CHRAJ 2003 – 2004 SCGLR 91 where the court per Brobbey JSC had directed at page 98 that to the extent that CHRAJ has a constitutional mandate to investigate violations of fundamental human rights wherever they occurred
– whether in the private or public sectors, ‘their investigations may cover violations of human rights even in private enterprises…’
Beyond agreeing with Appellant counsel, we must also point to the age old and uncontested principle that employment contracts, in general will not be specifically enforced at the suit of either party. As stated per curiam in Bani v Maersk Ghana Ltd. cited supra, ‘There is a sound policy underlay to this rule. It has to do with the courts restraining themselves from interfering with personal liberty. Just as an employee can terminate his employment at will, so can an employer.’
Thus since the employment relationship lies within the realms of contract, an evaluation of the validity of termination should consider whether the dismissal is supported by the terms of contract and the remedy available lies in damages if there has been a breach.
If the termination of the employment contract does not violate a statute in process and reason, it is at worst wrongful. The trial court’s long stretch into finding that the dismissals were void via a reasoning that the disciplinary committee did not have capacity to investigate a charge of stealing is totally without basis in law. Grounds A and C of the additional grounds of appeal are upheld.
We see that the Ground 3 of the appeal is closely related to grounds A and C and will consider it next. It complains that the trial judge erred in law by applying rules of criminal procedure and standard in assessing disciplinary proceedings undertaken by the Defendant/Appellant against the Plaintiffs/Respondents and thereby coming to the conclusion that the dismissal was unlawful and unfair.
The committee was a disciplinary committee that was set up to investigate the charges leveled against the Respondents, arrive at a conclusion and make recommendations for their punishment. This is the direction of Article 8.2 of the CBA between the parties – found on page 530 of the Record of Appeal (ROA) .
It was not an adjudicatory body or tribunal. Thus even without looking further at their work, we must agree with the Appellant counsel that the court ought not to have demanded that the records reflect that the charges against the Respondents were proved beyond reasonable doubt before the work of the committee may be accepted as valid.
Under Article 8.2 of the CBA, the Committee is to be convened by the HR department and to comprise of a representative from the HR department, two employee representatives, and two representatives from company management. A glance at the committee report tendered as exhibit 1 shows that it fulfilled this requirement.
The provision also demands that statements are obtained from the employee invited to face the disciplinary committee, that they are invited to present their case and have the opportunity to call witnesses and question persons who have made allegations against them, and the committee is to conclude on whether the offence has been committed and make a recommendation. The entire records blaze out the compliance with these requirements of a hearing. To the extent that the setting up of the committee was supported by the CBA, and its composition and work complied with the directives of Article 8.2 of the CBA, its’ composition and procedures cannot be impeached.
The only proper question for consideration where the decision in issue is concerned is whether the evidence presented to the committee that conducted the investigation for the company, are reasonably capable of supporting the decision of the company to dismiss the Respondents, and not whether two of the charges against the Respondents were proved to the standard required in criminal law. Ground 3 of the appeal is upheld.
Appellant counsel next argued ground D of the Additional Grounds of Appeal which complains that the learned judge erred in awarding the Respondents damages for defamation when they had neither claimed, pleaded facts relevant to, nor led evidence in support of such a claim.
It was the submission of Appellant counsel that not only did the Plaintiffs not indorse their writs with a claim for damages for defamation, they did not plead facts relevant to a defamation action as required by both common law and Order 57 rules 2 and 3 of the High Court (Civil Procedure) Rules 2004, CI 47. We agree with Appellant counsel.
It is difficult to appreciate how the trial judge arrived at his finding on defamation and orders for damages for defamation. First, as is well recognized as the rule in Dam v Addo 1962 2 GLR 200, and cited by Appellant counsel, it is a fundamental principle of substantial justice and fair trial that a court cannot arrive at a decision on a case that has not been presented to it for trial. She also cited Esso Petroleum Co Ltd v Southport Corporation 1956 AC 218 quoted with approval by the Supreme Court in Dam v Addo at pages 238 – 239 with these words ‘To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.’ And these are words we must echo as fundamental direction where justice delivery is concerned.
Procedurally and substantively, the claims brought to court centered on ‘wrongful dismissal’. The Respondents did not confront the Appellant with any case on defamation. The Appellant did not have an opportunity to defend itself against any claims of defamation. Thus the court did not have the mandate to arrive at a decision on whether the Appellants were liable for defamation or not.
The tort of defamation can only be recognized by the exact words published, evidence of the actual publication and distribution, and lack of justification for the publication such as truth and fair comment. And as pointed out by Appellant counsel, Order 57 rule 3 (1) of CI 47 gives this direction. In the present case, none of these elements that enable a trial around defamation was presented to court, and proved to the court. The court was therefore in flagrant violation of the rule in Dam v Addo when he made a finding of defamation and awarded damages for it. He imported findings on defamation into a case on alleged breach of contract between an employer and employee.
Then in the realm of the rules on evidence, the alleged finding of defamation arose from the Respondents’ testimony that their alleged misconduct and termination of employment was published in a mining bulletin which disenabled them from obtaining employment at other mining sites. Not a scintilla of proof of this publication was brought to court. 1st Respondent said such publications were the practice ‘’in the mining industry’ without even confirming if it was done in this case.
It is trite knowledge distilled in the celebrated case of Majolagbe v Larbi 1959 GLR 190 and countless other cases that where proof in law is required, it does not consist of a mere repetition of the matters claimed in pleadings, but of corroborating evidence. Thus the finding of defamation and award of damages for it is a grave error by the court and they are set aside. Ground D of the appeal is upheld.
Ground E of the Additional Grounds of Appeal deals with the quantum of damages. We believe that the sustainability of the judgment itself must be done prior to a consideration of the quantum of damages awarded and so we will now consider ground B of the Additional grounds of appeal which complains that the learned judge erred in purporting to set aside “confession” statements made by the Plaintiffs/Respondents in internal disciplinary proceedings held in respect of alleged misconduct on their part.
Appellant counsel pointed to the trial judge’s citation of Sections 120 (1) and (2) of the Evidence Act 1975 NRCD 323 regarding confession statements. The court had evaluated that the said provisions of the Evidence Act declared that a confession statement is not admissible against an accused person unless the statement was made voluntarily and in the presence of an independent witness. The court held that the Appellant had breached these rules on taking and using confession statements through its authorized employee who investigated the offences against the Respondent. As a result, the taking of the statements constituted a monstrous miscarriage of justice for which the court declared that it was ‘nullifying the effect of all the confession statements placed before the administrative or disciplinary committee’.
The submission of Appellant counsel is that Sections 120 (1) and (2) NRCD 323 applies only to criminal proceedings before a court of law and not to proceedings of an internal disciplinary committee of a private Limited Liability Company such as occurred in this case. Further, the evidence being adduced in a criminal action must be a hearsay statement made by an accused person. The Respondents were not under arrest or detained by the State. As such, the provisions of section 120 cannot apply to this case. Further, by the time of the judgment, the statements had already been admitted into evidence and what was left for the court was to determine the weight he would attach to it and not declare them nullified.
Once again, we must agree with Appellant counsel. Indeed, it is not clear what legal action constitutes the nullification of exhibits before a court as the trial judge purported to carry out. It is unsupported by any principles of law. Exhibits 2 to 14 contain statements made by the Respondents to their managers during investigations prior to the disciplinary hearings. They were tendered as part of the evidence before the court. If any party considered any of them to have been wrongly procured, the proper procedure was to have objected to their admissibility and have them rejected at the time of tendering. It is an unheard of procedure for a court to admit exhibits and ‘nullify’ the court exhibits after they have been tendered. Ground B of the additional grounds of appeal is upheld and order of alleged nullification is reversed.
Appellant counsel argued grounds 1 and 2 together. Ground 1 complains that the judgment is against the weight of evidence adduced at the trial, and ground 2 argues that statements and conclusions of the trial judge were prejudicial, without legal basis and unsupported by any evidence presented before the court or legal authority.
Appellant counsel submitted that the Respondents action centered on a claim for damages for wrongful dismissal. And to succeed in this action, the onus lay on each of the nine Respondents to prove that the termination of their employment was done in breach of the contract of employment or that the termination violated some statutory provision regulating their employment. Appellant counsel urged that on the evidence before the court, each of the Plaintiff/Respondents failed to prove either breach of contract or statutory provisions.
She cited the Court of Appeal decision in Lever Brothers Ghana Ltd v Annan; Lever Brothers Ghana Ltd v Dankwa (Consolidated) 1989 – 90 2GLR 385 in which the court had held that where an employer is entitled to dismiss summarily, what was required was that when the employee’s dismissal was questioned in a court of law, the employer’s action can be vindicated. We find no reason to distinguish this statement of the law and we reiterate it. Indeed, in the earlier cited case of Lagudah v GCB, Baddoo JSC citing the dictum of Lord Esher MR in Pearce v Forster 1886 1QBD 539 as a foundation also had these extremely clear words to say on page 399 ‘the law is well settled that the employer has the right to summarily dismiss an employee whose conduct is incompatible with the due or faithful discharge of his duties’. Dr. Date-Bah put it this way on page 405 ‘In the ordinary common law of employment, unaffected by public law considerations, there is no obligation on an employer to set up a tribunal or committee of inquiry before he can dismiss an employee summarily for misconduct. Irrespective of the procedure which he adopts, if he establishes facts justifying the dismissal, that is enough’
So in this situation, can the decision of the company be vindicated? Appendix B of the CBA which was tendered as exhibit D set out the grounds on which the employee could be summarily dismissed. The grounds for dismissal included the list of charges listed in the interdiction letters and ‘Any other grounds recommended by the Disciplinary committee’. Thus the invitation to face the disciplinary committee was not perverse, to the extent that the charges listed against the Respondents were covered by the grounds on which they could be invited to face a disciplinary committee.
With regard to the procedures for hearing, the record contains the letters of interdiction of all the Respondents, their statements to the committee and the detailed hearings which show that the Respondents were given a fair hearing. The report includes the recommendations of the Committee. The procedure is therefore justified by the terms of the CBA and there is no breach of law.
We have also examined the contents of the proceedings and find nothing to suggest that the outcome is perverse or there has been any miscarriage of justice. And we must now state two critical reasons for upholding this appeal on the strength of the evidence placed before the court and brought to us on appeal.
The first is what seems to be the largest elephant in the room where this appeal is concerned. Strangely, none of the parties seem to have noticed it. It is the electronic evidence from video and camera footage that was presented to the court. The records show that the disciplinary committee and the court had access to video and voice note evidence to arrive at their varied conclusions. It seems that this evidence found much credence with the disciplinary committee in arriving at the conclusion of wrong doing on the part of the Respondents. It found equal credence with the trial judge in determining that there was no proof beyond reasonable doubt that the Respondents had conspired to steal or actually stolen gold bearing material as indicated in their dismissal letters. It also featured loudly in the submissions of counsel for Respondents in this appeal.
Page 350 of the ROA reflects a statement by the trial Judge that the court had visited the locus of the alleged theft. The testimonies of the Plaintiffs were interrupted for the record of the locus visit to be presented by the Appellant’s General Manager who testified as CW1 and the Appellant’s former operation superintendent Gideon Annandale @ Deon who testified as CW2. CW1 tendered diagrams and pictures to explain how operations are conducted in the Acacia Area in issue works. These are Exhibits CW1 to CW3. We must correct the marking of these Exhibits to CE1 to CE3. He was cross examined extensively on the video footage in the court and what the parties saw without anyone compelling a tendering of the said footage. CW2 testified extensively from Page 365 on the video coverage and was cross examined on what it showed without anyone compelling a tendering of the said footage. DW1 testified and was cross examined on the video footage but was not compelled to tender same. But video footage is not ephemeral material like a sunset or other visuals of nature. It can be properly copied, documented and tendered as evidence. Strangely, when DW2 testified, the record on page 441 of the ROA indicates that exhibit 3A was recorded as voice note and he offered to tender the voice note. It is not clear if the voice note was captured in a compact disc or pen drive or other appropriate container from which the audio can be accessed by others. The court cleared the court room to listen to it and an objection on it. Thereafter, he directed copies of the video and voice notes to be served on the Plaintiffs’ lawyer. Then on page 449, the record is that the court ordered the videos to be shown. He also stated that he will hear the audios and that tendering in evidence would be done later. Without this tendering, the witness was cross-examined extensively on the videos.
At the tail end of his testimony found on pages 459 to 460, DW3 was asked:
Q. You agree that the video we watched was edited
A. Yes, under the instructions of the court
Q. This court has not ordered any such editing
A. Not correct
BY COURT - What do you mean by editing
A. It has been altered
The lawyer withdraws these questions and same expunged from the records
After a few more questions, there is no indication that this witness finished his testimony. There is no indication that these electronic pieces of evidence were tendered. The case was adjourned and on the next page numbered 461, a new witness –DW5, testified. She was not invited to tender the videos and voice notes. At the end of her testimony, the trial was stated to have ended and addresses were filed.
So all the opportunities to get these videos and voice notes into the record were lost. After travelling there to view the images, and after watching and listening to them in court, the court failed to ensure that what was observed in the locus visit was captured and tendered as exhibits. Everyone seemed to have missed the fact that before evidence can form part of the record of a case, it ought to be admitted into the records by the court.
But this is such a fundamental factor in justice delivery that we must point to it loudly and clearly. The greatest weakness of this judgment on appeal amidst a forest of weaknesses is the copious testimony on, and references to records which did not form part of the evidence in court.
In Iddrisu v. Amartey  SCGLR 670 the Supreme Court declared very succinctly, this position of the law in holding 4. I must set it out in extensor.
‘The High Court, just like all the other superior courts, was a court of record. Consequently, there must be a record of everything that was done and directed by the court, encompassing not only all processes filed before the court, but also a record of all arguments, submissions, evidence led by the parties and witnesses and the decisions or orders and judgments of the court. Whenever the record of any such process or event that was deemed to have taken place in the court was not available to be referred to, then the record of such an event could not be accepted as having taken place.’
In holding 1 of Asante v. Scanship Ghana Ltd. [2013-2014] 2 SCGLR 1296 the Supreme Court reiterated the foundational principle that an appellate court ought not to disturb the findings of fact made by the trial high court unless those findings are not supported by the evidence on record. In the same vein, we must disturb every alleged finding of fact that is not premised on evidence before this court. And we must hold that the trial court in this case had no mandate to attempt to impeach the dismissals based on alleged video evidence when this video evidence did not form part of the evidence on record.
Since the videos did not form part of the record of proceedings, we have to say that the judgment that the evidence from the videos did not prove the charges is against the weight of the record.
In addition to the above position, we have also reviewed the full record of exhibits and testimonies before the disciplinary committee and the courts, and do not find any reason to disturb the decision of the Appellant to dismiss the Respondents.
We note the ‘further’ set of statements that the 1st Respondent (Emmanuel Atsiafo) 2nd Respondent (Ernest Korang Yeboah), 5th Respondent (Andrew Hayford), 8th Respondent (Isaac Konjetey), and 9th Respondent (Isaac Boadu) gave to the disciplinary committee.
What we find striking about these ‘further statements’ is how they corroborate each other and justify the complaints of the Appellant. That of the 1st Respondent clarifies that there had been cases of the stealing of gold bearing material by one Forster who had been arrested earlier. Thus notwithstanding the vigorous cross examination of counsels for the Respondents and testimonies of Respondents which sought to give the impression that security was so tight at the Appellant’s site that the Respondents could not have executed the stealing they were accused of, this statement established the history of the ill practice in issue.
Then the further statements of Isaac Konjetey mentioned the involvement of one Isaac Ekow Mensah and David Awelgiyah. That of David Awelgiyah mentioned Solomon Jacobs and David Koomson as being complicit in the offence. Isaac Boadu mentioned the same Isaac Ekow Mensah, David Awelgiyah, David Koomson, and Isaac Konjetey. A reading of these further statements leaves one in no doubt that the preponderance of probabilities weigh heavily in favor of the occurrence of the removal of the gold bearing materials by the named employees because they mentioned the same ring of persons.
The disciplinary hearing report on the 2nd Respondent Ernest Korang Yeboah did not indicate that he complained about being coerced into signing the second statement in issue. Although he denied the second statement as being his act, he still admitted that he signed a statement after it was written for him.
Then also, as much as the Respondents sought to disclaim the voluntariness of their admission of wrong doing in their further statements, one cannot help but be struck by the tone of candor in the whole gathering of ‘statements’. Where the authors insisted that they denied wrongdoing, the statements reflected that. The question is therefore provoked – why would the amanuensis who recorded them choose particular Respondents to coerce so that they would change their statements, and how come that though they wrote the statements independently of each other, the statements corroborated each other’s presentation in the names of the persons involved in the wrong activity? Just as occurred before the disciplinary committee, the Respondents in their testimonies in court failed to provide any evidence beyond mere assertion that the statements were not willingly given and signed by them.
Since these statements were part of the record considered by the disciplinary committee, the proper evaluation is that the company’s decisions on 2nd, 5th, 7th 8th, and 9th Respondents were well and truly supported by the evidence before them.
The testimonies of the 1st Respondent in court and before the disciplinary committee were riddled with contradictions about his alleged coercion into admitting wrong doing. He also failed to testify to being beaten or threatened with beating and or provide evidence of this beating to the disciplinary committee. He admitted shoveling grease from the floor of the acacia area under consideration. According to the report of the committee admitted as exhibit 1, the investigator had told them that he had been identified by the General Foreman, Shift Supervisor, two expatriates’ process employees, other local employees. Other persons who confessed had identified him with them, and employees who were not on the same shift with him identified him.
My candid opinion is that the discrepancies and contradictions in 1st Respondent’s testimonies, his being on duty on the day the alleged video footage seen by the committee was taken with images of someone scooping material from the floor, his own confirmation of scooping material from the floor which he did not place in waste containers but on ‘a rubber’ on the floor, the testimony they were given of the range of people who identified the 1st Respondent in the alleged footage justified the recommendation for termination of his appointment. The decision to dismiss him is supported by the evidence before the company
According to the report on the 2nd Respondent, he admitted being in the Acacia area with the 6th and 4th Respondents. He was also confronted with being captured on video going into the acacia area more than once and yet in his written statement to the committee he said he had been to the acacia area only once. He identified himself in one video footage but not a second one. Although he tried to distinguish the acacia area from the bunker, he ended up admitting that the acacia area included the bunker and he was there more than once. He claimed that he had been directed by 6th Respondent to turn off a hose in the acacia area and yet by the end of his testimony, he admitted that the hose was operated automatically. The committee concluded that his responses were incoherent, suspect and evasive and I have no reason to find his dismissal as unwarranted.
The testimony of the 3rd Respondent, who was described as someone with long experience established that ‘any sand picked up in the plant can contain gold, even tails’. The record shows that he also identified himself in the video of 16th August 2009 by the vest/reflector he wore and the helmet. He recognized that someone was scooping material in the video and it was in the acacia area. We find no reason to attempt to interfere with the decision of the company on him.
The 4TH Respondent also admitted being in the acacia area with the 6th and 2nd Respondents. According to him, he was working when some bolts fell into a tank so he decided to descend to fetch them. He had the bolts in his hand at the time he interacted with the 2nd and 6th Respondents. Although he denied that the play back of a recording which was supposed to be his verbal interrogation with the investigator was his voice, one Mr. Yaw Fobil Assiamah was invited to join the hearing to confirm that he was present during the time that the investigator interviewed the 4th Respondent and he was an independent witness to his signature on his statement. He also confirmed that the statement had been read to the 4th Respondent before he signed it. This Mr. Assiamah stated that the 4th Respondent was the only person out of the persons interviewed who confessed to the offence of ‘having stolen gold-bearing material’ and he had gone further to mention the names of other employees who were his accomplices in the same act. The report also indicated that some contradictions in his statement were pointed out to him including his earlier statement that he came to the bunker area not more than once. On the strength of the above, I find no reason to find the decision of the Appellant unfounded.
The report indicated that after he was shown video footage of himself with 2nd Respondent and4th Respondent, the 6th Respondent changed his earlier testimony about a route he used through the control room to the acacia room where the gold bearing material was supposed to have been collected from. He was shown footage of himself accompanying 2nd and 4th Respondents in a dark room before he left for the control room. He was also seen in a second clip dated 1st September 2009 giving directions and inspecting the area where the gold bearing material was picked after he left. The committee was split on whether there was enough evidence of his guilt to merit summary dismissal or a Last and Final Warning. They decided to send their recommendation to the functional manager for his review. In the circumstances, I cannot fault any decision taken by the company as unsupported by the evidence available to them.
Although the 7th Respondent denied being part of any wrong doing, he confirmed his written statement and corrected portions on his further statement. The report on him was that he was shown video footage on himself and he denied being the person in that footage. His opinion was that the activity was not the normal way of taking samples and identified that the buckets being used in the video clip were the same type as what he used to collect his samples. He testified that collection of samples into ‘rubber’ was also not normal. The committee found his evidence as contradictory of earlier statements and ended with a recommendation that he be dismissed. After evaluating the contents of the hearing and conclusion, I do not find any objective parameters to arrive at an evaluation of perverseness in the decision to dismiss him
The denial of the 8th Respondent’s regarding the voluntariness of the second statement he gave admitting wrong doing was contradicted by one Charles Allotey who was present at the writing of the statement till the end of it. I find no reason to find fault with the Appellant’s decision to dismiss him.
The 9th Respondent’s testimony at the hearings was bizarre to say the least. Though he admitted to giving and signing his second statement, he claimed he gave the second statement out of frustration because the investigator had told him of the possibility of police and BNI involvement in the case, and that he had been captured on camera and so there was ample evidence in proof against him. So he gave the statement to have peace. And yet he admitted to being the one who offered to give the second statement to the investigator. He also claimed that he had believed that there was camera evidence based on which he could have been punished. He agreed that an audio recording played to him was a conversation between him and the investigator and yet denied that his voice was what was captured. Clearly, his testimony was full of contradictions and did not indicate a person convinced of his own innocence.
I found all the witnesses of the defendant cogent regarding the exercises they undertook and their testimonies coherently in line with the findings of the committee and the decision of the Appellant Company.
It is for the above reasons that I find that it is the judgment, which is not supported by the record, and not the decision of the Appellant Company. Ground 1 of the appeal is upheld. I also agree with ground 2 to the extent that statements and conclusions of the trial judge were without legal basis and unsupported by the evidence presented to the court or legal authority. Before I close this judgment, I must admit that I have not remarked on the submissions of Respondents’ counsel. This is not for want of reading or understanding them. It is only because I did not find it necessary to burden the legal and factual evaluation with the details of his submission, because I did not agree with any part of it. And considering that this judgment has been compelled to be long on account of the multitude of grounds of appeal, setting them down just so I can say that I disagree with them would not have been appropriate.
I must also say that we found very disturbing the latitude that the trial high court seemed to take with legal process and principles. This included purporting to nullify duly admitted evidence, and relying on evidence that he failed to ensure was captured as part of the records of the court. No judge remains in place forever, and every litigant has a constitutional right to appeal, as was exercised by the Appellants in this case. Therefore, it is the bounden duty of a trial judge to ensure that every piece of evidence submitted to him is tendered and secured as part of the records of the court, so that an appellate court will have the opportunity to conduct a rehearing of every material that the parties presented before it. Not to do so is a travesty of justice. The appeal is upheld in its entirety.
Cost of Nine Thousand Ghana cedis (GH¢9,000.00) award in favour of the Defendant/Appellant.
Gertrude Torkornoo (Mrs.)
(Justice of Appeal)
Ayebi I Agree E. K. Ayebi
(Justice of Appeal)
Domakyaareh I Also Agree A. M. Domakyaareh (Mrs.)
(Justice of Appeal)