Dordzie, J. A:

 Facts:

The plaintiff/respondent herein was an employee of the 2^nddefendant /appellant, Agricultural Development Bank. At the time of the incident leading to the suit, his position was an assistant store keeper stationed at the bank’s warehouse at Adenta; he worked with one Sayibu Abdulai who held the position of stores supervisor. Between February and July 2004 the bank imported 1,755 units of outboard motors, the respondent and his colleague Sayibu Abdulai took delivery of the items and they were kept in the warehouse at Adenta. There was one unit of the outboard motors already in stock, the new import of 1,755 units were added making a total of 1,756 in storage as at the time of the incident in question. I will hereinafter refer to the parties as plaintiff and defendants.

In December 2004 auditors of the 2^nd defendant bank did stocktaking in the warehouse and discovered that 162 units of the outboard motors were missing; the plaintiff and his colleague could not account for same. A report was made to the police. The appellants conducted their own investigations into the conduct of their employees, consequently the plaintiff and others were suspended and later dismissed summarily from the employment of the 2^nd defendant bank.

The plaintiff felt his dismissal was wrongful, he therefore instituted an action in the High Court, Accra praying for the reliefs stated below:

“An order declaring Defendants’ summary dismissal of Plaintiff dated the 7^th day of September, 2006, as illegal and wrongful and therefore, null and void.

An order commanding the Defendants to release to the Plaintiff forthwith the sum total of his Provident Fund contribution which is wrongly being withheld with intent to use same to defray the cost of the missing 162 Yamaha 40HP outboard motor engines.

An order directed at Defendants to pay to the Plaintiff all salary arrears dating back to 7^th September, 2006, along with all inherent incremental jumps and promotions as well as allowances and bonuses to which Plaintiff is entitled with interest thereon to be calculated at the prevailing commercial rate from the 7^th day of September, 2006 to date of final payment.

Damages to the tune of eighty thousand Ghana cedis (GH¢80,000.00) be paid to plaintiff to compensate for the trauma, social disgrace, inertia and all other disabilities mentioned here above in paragraph 17 of the Statement of Claim all occasioned by Defendants causing his arrest, detention and criminal prosecution and for muffling his career at no mean institution than a bank.

Cost.”

The averment of facts made by the plaintiff in his statement of claim in support of the above claims are that:

He was wrongfully dismissed over the disappearance of 162 units of outboard motors from the 2^nddefendant’s warehouse where he worked as assistant store keeper.

He further averred that the unit price of the specification of the outboard motors in question at that time was GH¢ 2,320.00; the total cost of the 162 units therefore was GH¢37,581.00 (It is obvious that this calculation is not accurate, 2,320 multiplied by 162 is 375,840).

Plaintiff averred that when the loss was reported to management of the 2^nddefendant he was immediately interdicted; however the bank made no efficient internal investigations in respect of the missing outboard motors and he was not given the opportunity to ever put up his defence. Thus the 2^nd defendant bank’s act of dismissing him summarily was wrongful.

In his dismissal letter the defendants informed him that his providence fund contributions were being withheld to defray the cost of the missing outboard motors, this is also a wrongful decision of the defendants.

It is further averred by the plaintiff that he was subjected to false arrest by the police; his prosecution at the court yielded no results and the defendant should have reinstated him.

It is the plaintiff’s case that the acts of the defendants have damaged his career, and damaged his social status he is therefore entitled to be compensated in damages.

The defendants resisted the claims and averred to the following facts in an amended statement of defence filed on the 5^th of December 2012:

The 2^nd defendant imported 1,755 units of Yamaha outboard motors through Japan Motors between February and July 2004 and kept same in its warehouse at Adenta.

Though defendants admit that Westec Security Services protected the warehouse, they however maintain it was the plaintiff and his colleague Sayibu Abdulai who received the stock into the warehouse and they were charged with the primary responsibility of protecting and accounting for the stock.

An internal audit investigation by the 2^nd defendant revealed that as at 1^st August 2006 plaintiff and his colleague could not account for 162 units of the outboard motors.

The defendants made proper and efficient investigations into the loss of the outboard motors; plaintiff and the colleague were given a hearing. The defendants followed the required procedure in dismissing the plaintiff. His dismissal therefore was not wrongful.

The defendants made a report of the loss of the items to the police, police investigations led to the arrest of the plaintiff. That the criminal court struck out the case did not exonerate the plaintiff.

The defendants therefore counter-claimed for:

The sum of GH¢ 285,985.00 being the cost of the 162 outboard motors plaintiff could not account for, plus interest at the prevailing bank rate from August 2006 till date of final payment.

The sum of GH¢ 4,123.87 being debt owed by the plaintiff to the defendants plus interest at the prevailing bank rate till the date of final payment.

In a judgment delivered by Patience Mills -Tetteh J on 24^th of June 2015, the High Court granted plaintiff’s prayers. The court declared the plaintiff’s dismissal unlawful and ordered that he should be paid his providence fund deductions, all salaries, allowances and bonuses due him with interest from

7^th September 2006. The court further awarded the plaintiff GH¢ 50,000 as general damages for false arrest and detention with its resultant trauma. Plaintiff was further awarded cost of GH¢ 10,000.

The appellants aggrieved by the said judgment brought this appeal praying this court to set aside the judgment of the High Court and enter judgment for the appellants.

Grounds of Appeal

The appellants per their amended notice of appeal canvassed 10 grounds of appeal which are:

The judgment is against the weight of evidence.

The learned Judge failed to consider the counter-claim of the defendants even though the plaintiff admitted being indebted to the 2^nd defendant to the tune of GH¢4,123.87.

The learned Judge failed to give adequate weight to the evidence adduced by the defendant resulting in a miscarriage of justice to the defendant.

The learned Judge erred in holding that “in a criminal offence like stealing there must be proof beyond reasonable doubt in order not to punish an innocent person and such proof was not available” when the 2^nd defendant did not dismiss the plaintiff for stealing.

The learned Judge erred in holding that there was no accuracy in the numbers of the missing outboard motors and therefore the plaintiff could not be punished for missing outboard motors when the plaintiff admitted that 161 outboard motors could not be accounted for.

The Learned Judge erred in holding that the Plaintiff has been punished twice by being suspended and later on dismissed when the suspension letter indicated that he was suspended pending the outcome of ongoing investigation into the loss.

The learned Judge erred in seeing the internal administrative investigations by the 2^nd defendant into the missing outboard motors as a criminal trial of plaintiff and therefore failed to appreciate the evidence adduced by the 2^nd defendant.

The learned Judge erred in her application of legal principles in evaluating the evidence adduced at the trial.

The damages and costs awarded the plaintiff were excessive.

The learned Judge erred in rejecting exhibits R1 and R2 tendered by the defendants/ appellants to help their case without regards to order 21(14) 1(C) of C.I.47.

In our opinion ground one, which is that the judgment is against the weight of evidence can incorporate grounds 3-7. The submissions of counsel for the appellant in support of ground 8 is not any different from the arguments for the 7^th ground. We will therefore consider grounds 3-8 as incorporated into the first ground and determine those grounds together.

Submissions:

At the hearing of the appeal both counsel argued the above grounds and their respective submissions can be found in the written submissions filed before this court. I will briefly recap the arguments made on behalf of the parties.

In support of the ground that the judgment is against the weight of evidence the appellants maintain that the plaintiff made certain admissions of fact both in his pleadings and oral evidence, there was therefore no controversy on those facts. Above all those facts weigh heavily in favour of the defendants and if the trial judge had given adequate considerations to those facts her verdict would have been different, the defendants would have been the victors at the end of the trial. The uncontroverted facts counsel numerated as follows:

The plaintiff and his colleague took delivery of 1,755 units of outboard motors into the 2^nd defendant’s ware house at Adenta.

The plaintiff and his colleague could not account for a shortage of 162 units of the outboard motors they received.

There was no forceful breaking in to the warehouse

Contrary to lay down security instructions of the 2^nd defendant bank the plaintiff and his colleague kept keys to the warehouse in a drawer in an office instead of leaving it with the security personnel.

The plaintiff was arrested by BNI in the course of their investigations of the loss of the outboard motors.

Plaintiff was given a hearing by a disciplinary committee which found him liable for misconduct and negligence.

Counsel’s further submission in respect of the ground that the judgment is against the weight of evidence is that the plaintiff’s action before the court is that of wrongful dismissal and the evidence placed before the court is in respect of that claim. The action is a civil action not a criminal action. The plaintiff was not charged with stealing in this action; the dismissal letter which is part of the evidence shows that a sanction of summary dismissal was applied against plaintiff when he was found culpable of misconduct and negligence. The trial court’s holding that the 2^nd defendant failed to prove stealing beyond reasonable doubt is therefore erroneous. What is more, the documentary evidence put before the court far outweigh the oral evidence given by the plaintiff which in some areas contradicted the documentary evidence. If the court had given adequate consideration to the documentary evidence the conclusion drawn by the court would have been different.

On the second ground of appeal which is that the trial court failed to consider the counter claim of the defendant, counsel submitted that the plaintiff in his evidence admitted he owes the 2^nd defendant an amount of GH¢4, 123.87, this amount is what the defendants are claiming from the plaintiff in their counter claim. The judgment was silent on this claim.

In arguing ground 9 counsel submitted that the trial court’s award of general damages of GH¢50,000 for false arrest and detention ‘and its resultant trauma’ is wrong in law because in an action for wrongful dismissal the quantum of damages is calculated largely on the basis of principles applicable to actions for breach of contract. False arrest and detention are actions in tort. No evidence was adduced at the trial to prove that the defendants falsely arrested and detained the plaintiff.

Counsel made reference to decided cases that have laid down principles that govern the award of damages in wrongful dismissal cases and emphasized that it is expected that plaintiff mitigates his losses. The award of salary arrears for over a period of 8years counsel argued is wrong in law and should be set aside.

On ground 10 it was submitted that the court erred in rejecting two documents marked R1 and R2. These documents according to counsel are relevant to the issues and they are documents known to the plaintiff, though they were not discovered, they are admissible under Order 21 Rule 14 (1) (c) of C. I. 47. The rejection of these documents led to the court coming to wrong conclusions on certain facts.

In reply to the above submissions counsel for the plaintiff argued that the defendants’ witnesses contradicted each other therefore their evidence before the trial court has no evidential value.

Counsel maintained that the first ground of appeal, that the evidence on record does not support the judgment is based on the fact that the plaintiff did not call any evidence to collaborate his evidence.

A further submission made by counsel is that the salary arrears awarded the plaintiff for a period of 8 years are monies due the plaintiff, anyone who had use of that money for 8 years has to pay damages to plaintiff. Moreover, counsel argued, the defendant did not rely on the Limitation Decree in contesting the action therefore the award of salary arrears to cover 8 years is in place.

On the last ground of appeal counsel argued that admitting the two rejected documents would have amounted to allowing the defendants to take advantage of the plaintiff. He urged the court to dismiss the appeal.

To adequately consider the ground that the judgment is against the weight of evidence, this court is required to re-examine the entire evidence placed before the trial court, oral and documentary, identify the established facts, draw its own inferences and come to its own conclusions. See the case of

Oppong Kofi & Others v Attibrukusu III [2011]1SCGLR 176

A summary of the oral evidence adduced at the trial court is as follows:

Plaintiff’s Evidence:

The plaintiff in proof of the facts he averred to in his statement of claim stated supra, gave evidence to this effect: He was employed by the 2^nddefendant bank in 1998 and he worked with the bank till 2006. In 2004 he was posted to the defendant’s stores (or warehouse) at Adenta as an assistant store keeper. There was a substantive store keeper whom he worked with. Westec Security Company a private security company was engaged by the 2^nd defendant to protect the store. The stores took delivery of Yamaha outboard motors in June 2004; In December the same year, it was detected during stock taking that 161 units of the outboard motors were missing. Contrary to his averment in his pleadings that he was not given a hearing, plaintiff testified that he was invited by an investigation committee who asked him to explain how the outboard motors disappeared from the stores. He told the committee that he knew nothing about the disappearance of the outboard motors and that Westec Security Company was responsible for ‘manning’ the warehouse. On the 7^th of September 2006 the 2^nd defendant served him with a letter suspending him from work and to draw half of his salary. Irrespective of the letter he continued to work full time. In January 2007 he was handed over to the police and was kept in police cells for one week. In February 2007 he was arraigned before the Circuit Court Accra on a charge of stealing the 161 missing outboard motors.

In July 2007 the 2^nd defendant served him with a query, his lawyer advised him not to reply because of the criminal matter pending in the Circuit Court. The query was repeated three weeks after the first, he replied the second query.

While the criminal case was still pending the 2^nd defendant summarily dismissed him per a letter dated 20^th August 2008. The dismissal letter stated that he would lose all his benefits and forfeit his Providence Fund contributions as well; for his contributions to the Providence Fund would be used to defray the cost of the missing 161 outboard motors.

In March 2009 the criminal case was struck out for want of prosecution and he was set free. He petitioned the 2^nd defendant to be reinstated but they did not. Plaintiff denied that the outboard motors were lost due to his negligence and misconduct. He also denied that his dismissal was in accordance with the Collective Agreement exhibit 4

In respect of the defendant’s counter claim, plaintiff admitted he owes the 2^nd defendant GH¢ 4,123.89 he had been served with a demand notice for that. He however denied he is liable for the cost of the missing outboard motors.

Defendants’ Evidence:

The Relations Manager of the defendant bank, Adwoa Kesewa Aboagye gave evidence on behalf of the bank and said the plaintiff and his supervisor Sayibu took into their custody 1,755 pieces of outboard motors. There was one unit of the outboard motor in store prior to taking the 1,755. The total outboard motors in stock were therefore 1,756 pieces.

In December 2005 the Audit Department of the bank took stock of the items in the store and found that 162 units of the outboard motors were missing from the warehouse. The Audit Department was tasked to conduct an investigation. They did and submitted a report to the managing Director. The Managing Director then appointed a three member committee to investigate the irregularities in the importation, clearance and sale of the outboard motors. The said committee recommended the setting up of a disciplinary committee for further investigations. Subsequently the plaintiff was issued with a query. After he gave a reply to the query he was invited to appear before the disciplinary committee.

The disciplinary committee submitted a report to management. The witness tendered this report.

By the recommendations of the disciplinary committee the plaintiff was dismissed summarily.

Another employee of the bank, the manager in charge of Investigations, Audit and Assurance Department gave evidence as DW1.

He said he was involved in the audit investigations into the missing outboard motors.

According to him the plaintiff’s contribution to the Providence Fund was not used to defray the cost of the missing outboard motors. The cost of the outboard motors was above GH¢200,000. The plaintiff’s emolument so far as Providence Fund was concerned amounted to GH¢10,000. He said it is a policy of the bank that where a staff is dismissed summarily he/she is not entitled to her/his Providence Fund contributions. The plaintiff was summarily dismissed therefore he was not entitled to be paid any emoluments.

The collective agreement which regulates the plaintiff’s employment relationship with the 2^nd defendant forms part of the defendant’s evidence before the trial court as exhibit 4.

By page 12 of the record the plaintiff filed an application for directions on the 6^th of July 2011 the application has Thursday 21^st July 2011 as the return date. The issues raised in the application for direction are:

Whether or not plaintiff has been tried and found guilty by a duly constituted court of law to have either stolen or caused the loss of 162 units of 40HP Yamaha outboard motors from the defendants’ warehouse

Whether or not the summary dismissal of plaintiff by the defendants dated the 7^th of August 2006 was arbitrary, wrongful and illegal.

Whether there is any agreement between plaintiff and defendants that the plaintiff’s providence fund contribution be used to offset any debt he might incur during his tenure as employee of the 2^nd defendant bank.

Whether or not any punishment by way of suspension was meted out to plaintiff before investigations were launched into the loss of the 162 Yamaha outboard motors from and defendants warehouse at Adenta.

Whether or not plaintiff is entitled to his claim

Any other issues raised by the plaintiff in this suit.

The purpose of pleadings is to narrow down issues and identify such issues on which the parties are seeking a judicial decision. Odgers on Civil Court Action Twenty-fourth Edition at paragraph 6.14 puts it this way: “The function of pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus to arrive at certain clear issues on which both parties desire a judicial decision.”

For this reason, procedural rules of court require that at the close of pleadings the issues joined between the parties are identified and upon application to the court the court directs on what the relevant issues are and how the case should be conducted to determine those issues.

Order 32 of the High Court (Civil procedure) Rules, 2004 C. I. 47 particularly made provision for this procedure.

The record before us does not show that the trial court heard the application for directions and set down any particular issues as the issues to be determined by the court. That this was not done is further confirmed by the judgment. The judgment which forms the subject matter of this appeal has not identified issues that needed to be determined; particularly on allegations by the plaintiff that he was not given a hearing before his dismissal, this fact to my mind is very crucial to the determination of the claim of wrongful dismissal and more so when plaintiff in his oral evidence contradicts his averment. Identifying the relevant issues helps the judge in making primary findings of fact.

Issue (a) of the issues filed by the plaintiff for example is not an issue joined between the parties. In the pleadings both parties admit that there was no trial of the criminal charges against the plaintiff. The case was struck out for want of prosecution by the criminal court. Such matters would have been taken care of at the application for direction stage and should have saved time and facilitate a quick disposal of the case.

The trial court in coming to its conclusions in the judgment made the following findings which in my view, a) did not address the issues at stake and b) were not based on the evidence before the court. I quote verbatim the first two findings the trial court made at page 276 of the record:

“There is no evidence of dishonest appropriation of the missing outboard motors by the plaintiff. Exhibit E the proceedings of the criminal trial against the plaintiff indicated that he was discharged for want of prosecution……..He was not found guilty by the bank or any court of competent jurisdiction. The fact also remains that he was not the only person responsible for the upkeep of the outboard motors. There were several persons to be held responsible for the missing outboard motors including the security company whose responsibility it was to protect the outboard motors after working hours of the bank till the following morning, and the substantive store keeper from whom plaintiff took instructions. The defendants were not certain on the official who might have mentioned the name of the plaintiff as an accomplice. In a criminal offence like stealing there must be proof beyond reasonable doubt in order not to punish an innocent person and such proof was not available.

There were shortcomings in the management of bank stocks. Reconciliation of accounts and management of the numbers in the units of outboard motors was poor. While the defendants claim there were 162 missing outboard motors the plaintiff claim 161 were missing. When there are no accuracy in the numbers no one could be punished for missing outboard motors………….”

The just quoted reasoning and findings are related to a criminal charge of stealing which is not the case in this action. If the learned judge had addressed the claims and counter claims of the parties in the action, the issues put before her, and had examined the evidence both documentary and oral before her carefully she would not have made such findings.

Exhibit 3 the disciplinary committee’s report for example states clearly the disciplinary procedure followed by the defendants and the reasons for the plaintiff’s summary dismissal. The role played by the plaintiff as an assistant store keeper in relation to the outboard motors is also clearly spelt out in exhibit 3. It is not part of the evidence that the plaintiff only took instructions from the substantive store keeper. Exhibit 3 also clearly shows the two were investigated and the sanction of dismissal was recommended for both for misconduct and negligence leading to the loss of the outboard motors. This clearly demonstrates that the findings of fact of the court below are inconsistent with the totality of the evidence on record, the findings of fact are also not consistent with crucial documentary evidence which form part of the record. This court under such circumstances can disturb the findings of the trial court. See the case of Gregory v Tandoh IV & Hanson [2010] SCGLR 971.

Furthermore, the issue of the number of outboard motors that were missing was never disputed therefore no issues were joined between the parties on that; That 162 outboard motors were missing was an established fact on which no evidence was required. The inference drawn by the court in its judgment on the number of missing outboard motors was that the defendants were not sure of the number of outboard motors that were missing so no one could be punished for missing outboard motors.

The plaintiff in his oral evidence deviated from his consistent averments in his pleading that the number of the missing outboard motors was 162; in his evidence he insisted the number was 161. Plaintiff never amended his statement of claim to correct this figure if he truly believed that is his case. This deviation from his pleadings in his oral evidence casts doubts on his credibility as a witness. The trial court therefore ought not to have attached any weight to the plaintiff’s evidence on this fact.

The plaintiff in fact averred in paragraphs 5, 6 and 7 of his statement of claim that 162 units of the outboard motors were missing. The defendants made admission of this fact in paragraph 8 of their statement of defence and affirmed throughout the pleadings and their evidence that 162 units of the outboard motors were missing. The plaintiff reaffirmed this number in paragraphs 6 and 7 of his reply.

Another issue that was not contended by the parties at the trial is the issue of the plaintiff’s indebtedness to the 2^nd defendant. The plaintiff admitted in his evidence that he is indebted to the 2^nd defendant in the sum of GH¢4,123.87 and that he received demand notice from the defendants for payment of same. This is the first of the two liquidated amounts the defendants claim in their counter claim, the trial court however did not consider the defendants’ counter claim at all. The 2^nd defendant, I find is entitled to judgment on this claim of GH¢4, 123.87

From the pleadings and evidence on record the following in my view are the crucial issues the trial court ought to have resolved:

Whether or not the plaintiff’s dismissal was wrongful.

Whether the plaintiff’s arrest and detention was unlawful and whether defendants are liable for the alleged wrongful arrest and detention.

Whether plaintiff is entitled to payment of his Providence Fund contributions and any salary arrears upon being dismissed summarily.

Though the plaintiff in his pleadings maintained he was not given a hearing before his dismissal, he abandoned that position in his evidence. Exhibit 3 is the report of the disciplinary committee that investigated the plaintiff’s alleged misconduct and negligence that led to his dismissal. Exhibit 3 disclosed that the plaintiff appeared before a three member disciplinary committee on the 11^th& 12^th of October 2007 and 14^th of December 2007 and was given a hearing. He was not investigated alone but Sayibu Abdulai his colleague was investigated as well.

They both narrated the role they played in receiving the outboard motors into the store they were in charge of. Their evidence before the committee confirm the defendant’s evidence that they both took the outboard motors in to their custody and are accountable for their safe keeping. Relevant findings the committee made from their investigation are that:

The bank imported 1,755 units of outboard motors through Japan motors between 10^th February and

5^th July 2004. There was an opening balance of 1 unit at the warehouse thus bringing the total balance to 1,756. The plaintiff and his colleague Sayibu admitted they took custody of all the 1,756 units.

As at August 2006, 1,591 units have been sold. The book balance then stood at 165units but only 3 units were physically available, thus revealing a shortage of 162 units.

With this documentary evidence confirming the undisputed facts averred to in the respective pleadings of the parties on the number of outboard motors found missing, the trial court’s finding that the defendants were not certain of the number of outboard motors they allege was missing is not based on the evidence before her on the issue; such a finding cannot be sustained.

Other findings made by the disciplinary committee are:

Gross misconduct on their part.

In the course of both store keepers i.e. the plaintiff Asamani and Saibu admitted that there had not been any break-in; that notwithstanding 162 outboard motors got missing from the warehouse.

The keys to the office where the warehouse keys were kept were personally kept by Sayibu and Asamani the plaintiff. They took them home and brought them to the office as and when they desired. This violates the dual control policy of the bank; the practice plaintiff and Sayibu adopted made the warehouse accessible to either of them as and when they desired.

The two storekeepers, that is, the plaintiff and Sayibu through their omission or commission allowed others to have access to the warehouse and succeeded in removing some of the outboard motors. This amounts to investigation into the incident by the police one of the security personnel engaged at the warehouse was arrested by the police and arraigned before the Circuit Court, Accra. Asamani confirmed to the disciplinary committee that the said security officer mentioned him as an accomplice therefore he had also been charged and arraigned before the Circuit Court.

The disciplinary committee recommended that the appointments of Sayibu and Asamani with the bank should be terminated in accordance with Clause 15.6 (c) of the Collective Agreement between the Union of Industry Commerce And Finance Workers and the Bank.

Subsequent to the submission of the Disciplinary Committee’s report to the 1^st defendant, plaintiff was issued with a summary dismissal letter, exhibit D. The relevant portions of exhibit D read “At its meeting held on 5^th August, 2008, the Board of Directors considered the report and the findings of the Disciplinary Committee involving the loss of 162 units outboard motors at the Adenta warehouse. The loss was as a result of your negligence and inability to take proper charge of goods put in your custody as the assistant to the Store Supervisor.

Your negligence resulted in financial loss to the bank.

The Board of directors therefore decided to apply the sanction of summary dismissal in accordance with section 15.3 (a) of the Collective Agreement between the Union of Industry, Commerce and

Finance Workers and the Bank with retrospective effect from 7^th September, 2006 with loss of all benefits.

Your Providence Fund contributions are also forfeited to defray the loss caused the bank as a result of your misconduct.”

The Collective Agreement between the Union of Industry, Commerce and Finance Workers and the 2^nd defendant Bank, which is the agreement that regulates the contractual relationship between the parties has section 15.4 (a) dealing with summary dismissal.

Section 15.3 the dismissal letter referred to has provisions dealing with suspensions / interdictions. By the dismissal letter the Board of directors decided to apply the sanction of summary dismissal. Obviously there is a mistake in quoting clause 15.3. The defendant’s representative admitted it was a typographical error and corrected same in her evidence in cross examination. (See page 220 of the record.)

Clause 15.4(a) reads: “The Managing Director for just and reasonable cause involving dishonesty, fraud, willful and gross misconduct and any of the provisions of Clause 10-15 hereof may effect summary dismissal.”

Thus though the Disciplinary Committee’s recommendation as contained in their report is to terminate the appointment of the plaintiff in accordance with Clause 16.6 (c), Clause 15.4(a) gives him the discretion to apply the sanction of summary dismissal if he has just and reasonable cause to do so.

In cross examination plaintiff admitted almost all the findings the disciplinary committee made, though plaintiff denied that both of them, he and Sayibu kept the keys contrary to the lay down dual security procedure of the bank, and insisted it was Sayibu, he admitted that in the absence of Sayibu he opened the store ‘because work must go on.’

Plaintiff further admitted that he was given a query and he later testified before the disciplinary committee and he had the chance to exonerate himself.

The question of the missing outboard motors was admitted by the plaintiff. He admitted further that he and his supervisor took custody of the outboard motors and were responsible for their upkeep and sales.

From the totality of the evidence on record the defendants followed the appropriate procedure as contained in the collective agreement in investigating the alleged misconduct of plaintiff and applied the appropriate sanction which is summary dismissal.

In a contract of employment there are some fundamental implied duties expected of the employee, breach of which justifies a summary dismissal at Common Law. One of such duties is to obey reasonable and lawful orders of the employer. The text book writer Gwyneth Pitt in his book

Employment Law (Third Edition) puts it this way at page 97 “The most fundamental duty of the employee is to obey the employer’s orders: working as instructed is the employee’s basic consideration under the contract as providing remuneration is the basic consideration of the employer. Breach of this duty is invariably regarded as a fundamental breach of contract which at common law entitles the employer to dismiss the employee without notice.”

Thus Lord Evershed M. R. in the case of Laws v London Chronicle (Indication Newspaper) [1959]2 All E.R. 353 held: “Willful disobedience of a lawful and reasonable order shows a disregard – a complete disregard – of a condition essential to the contract of service, namely the condition that the servant must obey the proper orders of the master, and that unless he does so the relationship is, so to speak, struck at fundamentally.”

Coming home, there is a statutory duty placed on the employee to obey the instructions of the employer and to further take proper care of the employer’s property placed under his control Section 11 of the Labour Act, 2003 Act 651 reads: “Without prejudice to the provisions of this Act, the duties of a worker in a contract of employment or collective agreement, include the duty to……. (e) obey lawful instructions regarding the organization and the execution of the worker’s work…. (h) take proper care of the property of the employer entrusted to the worker or under the immediate control of the worker.”

It is a finding of the disciplinary committee that the plaintiff and his supervisor disobeyed the bank’s lay down procedure in keeping keys to the warehouse they were in charge of. They were negligent in the taking care of the outboard motors placed under their immediate control. Their acts led to the loss the 2^nddefendant bank incurred. There is therefore justification for dismissing the plaintiff summarily.

It is my view that plaintiff’s dismissal was not wrongful.

The trial judge failed to consider all the evidence put before her on this issue and erroneously relied on the question as to whether a criminal charge of stealing was successfully proved against the plaintiff to hold that his dismissal was wrongful.

The next issue is whether the plaintiff’s arrest and detention was unlawful and whether defendants are liable for the alleged wrongful arrest and detention.

From the evidence on record the defendants made a report of the missing outboard motors to Bureau of National Investigation (BNI). In the cause of their investigations the plaintiff was arrested.

The defendants having suspected theft in their warehouse were obliged to make a report to the police. They owe the civil duty to report crime. The police may arrest any suspect depending on the information they have in the course of their investigations. Section 10 (2) (a) of the Criminal and Other Offences (procedure) Act provides “A police officer may arrest without warrant a person whom the police officer suspects on reasonable grounds (a) for having committed an offence….” The evidence placed before the court in respect of plaintiff’s arrest and detention is that he was arrested by police because one of the security officers at the warehouse where the outboard motors were kept implicated him in the course of investigations into the theft of the outboard motors. He was charged with stealing and arraigned before the Circuit Court but was discharged for want of prosecution. His arrest and detention therefore was not unlawful in any way. The court before which he was arraigned on the charge of stealing discharged him for want of prosecution. This does not mean he had been acquitted and discharged of the crime he was charged with. The prosecution can always re-arrest him and have him prosecuted.

Until he is tried and acquitted and discharged the cause of action on wrongful arrest and detention does not arise. The defendants therefore cannot be held liable for wrongful arrest and detention.

On the issue as to whether plaintiff is entitled to payment of his Providence Fund contributions and any salary arrears upon being dismissed summarily,

Plaintiff would be entitled to salary arrears if we have found his dismissal to be wrongful. Our finding is that the dismissal was not wrongful the question of paying him salary arrears therefore do not arise. As regards his providence fund contributions, Clause 6.1 of the Collective agreement exhibit 4 provides: “Every permanent employee of the bank shall upon engagement become a member of the bank’s Provident Fund Scheme and shall at the end of each month, by the check-off system contribute 15% of his / her monthly salary or wages towards the fund. The bank shall also contribute 25% of the employee’s monthly salary or wages towards the fund. The bank’s contribution has been increased from 15% to 20%. However the 5% increase in the bank’s contribution shall be retained and become payable upon discharge of the member or resignation or retirement.”

The plaintiff as a member of the fund had part of his salary kept in the fund and should be entitled to same. In fact from the wording of the dismissal letter exhibit D the defendants have not stated that he is not entitled to be paid his contributions but the letter stated it has been forfeited to defray the cost of the missing outboard motors. To my mind the plaintiff is entitled to be paid what has accrued to him in the fund.

Having partially considered ground two of the appeal above it would be convenient to conclude consideration of the said ground at this stage. Ground two says the trial judge failed to consider the counter claim of the defendants. The plaintiff having admitted his indebtedness to the 1^st defendant bank, I have found is liable to pay his just debts to the 2^nd defendant.

The second leg of the counter claim is whether the plaintiff is liable to refund the cost of the missing outboard motors.

Having found that the plaintiff was responsible for the safe keeping of the stock in the stores and having also found that his misconduct with his supervisor led to the loss to their employer it follows that both of them are liable to make good the loss they caused their employer to incur. According to the defendants’ evidence the estimated cost of the 162 outboard motors is GH¢285, 985.

The plaintiff I find liable to refund half the cost of the 162 missing outboard motors which is GH¢ 142,992.5. The defendants counter claim succeeds.

For the above stated reasons grounds 1-8 of the grounds of appeal succeed.

Ground 9 is that the damages and cost awarded the plaintiff were too excessive. Having found that the summary dismissal of the plaintiff was not wrongful, his arrest and detention is also not wrong, it follows that he is not entitled to any damages. It is however worth commenting that the damages awarded by the trial court were done rather arbitrarily. There are a good number of decisions of the Supreme Court that spell out the guiding principles in awarding damages or compensation in wrongful dismissal cases. In the case of Ashun v Accra Brewery Ltd [2009]SCGLR 81 for example the court, per Date-Bah JSC at page 84 held:..“the duty of damages for wrongful dismissal devolves on an employee. Accordingly he or she has the duty to take steps to find alternative employment. In principle then, in the absence of any contrary statutory or contractual provision, the measure of damages for wrongful termination of employment under the common law of Ghana is compensation, based on the employee’s current salary and other conditions of service. For a reasonable period within which the aggrieved party is expected to find alternative employment. Put in other words the measure of damages is the quantum of what the aggrieved party would have earned from his employment during such reasonable period determined by the court, after which he or she should have found alternative employment.”

In the case of Kobi and Others v Ghana Manganese Co Ltd. the Supreme Court considered between one to two years a reasonable period. The trial court obviously did not consider all these decisions which are binding on it when it decided to grant the plaintiff’s 3^rd claim. In fact from the totality of evidence on record the plaintiff has not discharged the burden of proving that his dismissal was wrongful. He is not entitled to any award of damages.

The trial court has not indicated the factors it took into consideration in awarding cost of GH¢10, 000 to the plaintiff, the GH¢10, 000 is excessive. I consider GH¢2, 000.00appropriate in the circumstances. See the case of Baiden v Odoi [1963]1GLR 488 SC.

The appellant’s grievance in ground 10 is that the trial court erred in rejecting exhibits marked R1 and R2 the appellants admit that these documents were not discovered but are relevant documents and the plaintiff was aware of them therefore Order 21 rule 14 (1) (c) of C. I 47 allows the documents to be admitted. The said Order reads:

(1) “If any party who is required by any of these Rules, or any order made under them, to make discovery of documents or records, or to produce any documents or records for the purpose of inspection or any other purpose, fails to comply with any provision of that rule or with that order, then without prejudice to rule 9 (1), the Court may make such order as it considers just including, in particular, an order that

(a) the action be dismissed;

(b) the defence be struck out and judgment entered accordingly:

(c) where the document is favourable to the party's case, the party may not use the document at the trial, except with leave of the Court; or

(d) where the document is not favourable to the party’s case, the party may be committed for contempt.”

Exhibit R1 is indeed addressed to plaintiff he in cross examination admitted he received same and agreed he owes the defendants GH¢ 4,123.87 Plaintiff’s indebtedness to the bank is not in issue and the fact that it is a document plaintiff admitted he had received, the court should have granted leave to the defence to tender same. Nevertheless the rejection has not harmed the defendant’s case in view of the plaintiff’s admissions. Similarly R2 could have only confirmed the plaintiff’s own pleadings about the number of outboard motors missing, a fact the defendants admit. Admitting same could have only confirmed admitted facts. I find both documents admissible under Order 21 rule 14 (1) (c).

The appeal succeeds on all the grounds. Costs of GH¢2,000.00 in favour of the Appellants.