BARCLAYS BANK LIMITED vs. GODSON AWORTWI DADZIE AND PHILIP NYATUAME
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
BARCLAYS BANK LIMITED - (Defendant/ Appellant)
GODSON AWORTWI DADZIE AND PHILIP NYATUAME - (Plaintiffs/ Respondent)

DATE:  14TH JULY, 2016
CIVIL APPEAL NO:  H1/39/2016
JUDGES:  S. MARFUL-SAU J.A. (PRESIDING), F.G. KORBIEH J.A., I.O. TANKO AMADU J.A.
LAWYERS:  SIKA AGGREY FOR THE DEFENDANT /APPELLANT
NII KWEI AMASAH FOR THE PLAINTIFFS /RESPONDENTS
JUDGEMENT

 

F.G. KORBIEH, J.A.

The brief facts of this appeal, as narrated in the plaintiffs/respondents’ writ of summons and statement of claim are as follows: the plaintiffs/respondents are former employees of the defendant bank who rose to the position of retail manager and customer team manager respectively. They were both stationed at the Koforidua branch of the bank. On the 3/1/2008, a customer of the bank, by name “No One Can Know” (NOCK) went to the bank to withdraw a total of GH¢12.3 million by four separate cheques. The said customer’s representative, one Mr. Aikins, had been introduced to the Koforidua branch by the Okim Oda branch manager of the bank who had explained that the Akim Oda branch had cash problems and requested the Koforidua branch to assist the customer withdraw the money; thereafter the customer had been doing business with the Koforidua branch in accordance with the bank’s procedure for withdrawal of cash. So on the 3/1/2008, when Mr. Aikins called to say that he was going to withdraw GH¢3,600,000.00, the 2nd plaintiff/respondent checked the account of NOCK and saw that it had GH¢4,200,000.00 in it. As he was wont to  do,  the  2nd  plaintiff/respondent  called  one  Miss  Joyce  Bekoe  of  the  Treasury Department at the head office of the bank for authorization and she confirmed and approved the withdrawal. After the 2nd plaintiff/respondent had completed filling the forms for the withdrawal of the GH¢3,600,000.00, Mr. Aikins called again to say that he was also going to withdraw GH¢8,700,000.00. The 2nd plaintiff/respondent however declined to handle that transaction because of the quantum of the money involved. But through the instrumentality of Mr. Aikins, the 2nd plaintiff/respondent got a call from Miss Bekoe instructing him to process and effect payment of the second cheque as well.

The 2nd plaintiff/respondent had checked the customer’s account and found that by then it then had sufficient funds to accommodate the two cheques. He therefore proceeded to process the second cheque as well and eventually went with Mr. Aikins’ son, Bright AsieduAikins, to the Bank of Ghana agency in Koforidua where, after completing the final processes, he left Bright Asiedu Aikins to be paid the cash. On the 31/1/2008, the plaintiffs/respondents each received a letter suspending them from work pending investigations into the unauthorized cedi overdraft withdrawal on NOCK’s account. The plaintiffs/respondents were subsequently summoned before a committee set up by the defendant to investigate their involvement in the withdrawal and loss of GH¢12.3 million to the defendant bank. Afterwards the plaintiffs/respondents were summarily dismissed from the employment of the bank for alleged gross misconduct. The plaintiffs/respondents averred that in view of all the circumstances of the case, their summary dismissal was unwarranted, unjustified, wrongful and unfair. They therefore sued the defendant/appellant claiming the following reliefs:

i) A declaration that the purported dismissal of the plaintiffs/respondents was wrongful and unwarranted.

ii) An order for the defendant/appellant to pay to the plaintiffs/respondents all their end of service and accumulated entitlements.

iii) An order for the defendant/appellant to pay to the plaintiffs/respondents damages for wrongful dismissal.

iv) Any other or further reliefs as the honourable court deemed fit.

 

The defendant, whilst admitting that the plaintiffs were its former employees, denied most of the other material allegations of fact averred by the plaintiffs. It averred that the plaintiffs were guilty of “gross misconduct resulting in substantial financial loss to the Defendant Bank”. It further averred that “the Plaintiffs clear wrongdoing was their neglect and failure to follow procedure expressly laid out in the Branch Operations Manual with respect to the cheque withdrawals made on the 3rd January 2008 by Bright Aikins, and in following wrong procedure in the withdrawal of the GH¢12,300,00.00 from the Bank of Ghana”. (sic). The defendant therefore denied that the plaintiffs were entitled to the reliefs asked for.

 

At the ensuing trial, the two plaintiffs both testified. The defendant bank called Joyce Bekoe as its representative and two other witnesses, George Nkansah Asante and Owusu Appiah-Kubi. In his judgment, the learned trial judge found that the plaintiffs had been wrongfully dismissed from their employment. He therefore proceeded to awarded them the following: to each plaintiff: a) all his salary calculated from the date of his interdiction i.e. 31/1/2008 to the date of judgment; b) all his end of service awards calculated from the date of interdiction till date of judgment and c) payment of three months’ salary in lieu of proper notice. In addition, the 1st plaintiff was awarded GH¢20,000.00 general damages for prospective loss of promotion and loss of employment. The 2nd plaintiff was awarded GH¢15,000.00 as general damages.

 

It is against this judgment that the defendant has appealed on the following grounds:

(a) “That upon a fair and balanced evaluation of the pleadings, issues set down for trial, the testimonies received at the trial, the documents tendered by the parties and the law, the learned judge’s conclusion that the dismissal of the plaintiff/respondents dismissal was wrongful is erroneous and unsupportable in law.” sic

(b) “The learned trial judge’s order that the Plaintiff/Respondents be paid all salaries from the date of interdiction to the date of judgment is wrong in law and perverted in the face of the admitted and undisputed evidence at the trial that the Plaintiff/Respondents were paid their full salaries from the date of their suspension (termed as interdiction by the learned trial judge) to the date of their dismissal.” (sic)

(c) “The learned trial judge’s decision awarding the Plaintiff/Respondent their salaries from the date of their interdiction to the date of their dismissal (i.e. salaries for a period of over 7 years) as compensation for wrongful dismissal is wrongful in law and per incuriam binding decisions on the measure of compensated to be awarded in such instant cases of Nartey-Tokoli v. Valco [1987-88] 2 GLR 532; Civil Appeal No. 14/18/2008 entitled Co. S.B. Ashun v. Accra Brewery Limited dated 12th November, 2008 &Kobi v. Ghana Manganese Co. Limited [2007-2008] 773; all of which limits the period of salaries to be awarded as damages for wrongful dismissal to between one year to two years.” sic

(d) “The award of the sums of GH¢20,000.00 and GH¢15,000.00 to the 1st and 2nd plaintiff/respondents respectively by the learned trial judge as general damages for prospective loss of employment is a head of damages alien and unknown to our law and therefore erroneous and should be set aside as is the cost of GH¢5,000.00.” sic.

 

The relief sought was that the judgment appealed against should be set aside and judgment entered for the defendant/appellant.

 

The wording of these grounds of appeal do not conform to the provisions of Rule 8 sub-rules (4) and (5) of the Court of Appeal Rules, 1997 (C.I. 19). It is provided in sub-rule (4) as follows:

 

“Where the grounds of appeal allege a misdirection or error of law, particulars of the misdirection or error shall be clearly stated.”

 

It is again provided in sub-rule (5) as follows:

 

“The grounds of appeal shall set out concisely and under distinct heads on which the appellant intends to rely at the hearing of the appeal without an argument or a narrative and shall be numbered consecutively.”

 

 

Under sub-rule (7) these grounds of appeal could have been struck out. I shall however not allow these infractions to detain me any further for the reason that justice should not be sacrificed on the altar of technicalities. It is provided in section 10(4)(d) of the Interpretation Act, 2009 (Act 792) as follows:

 

“Without prejudice to any other provision to this section, a Court shall construe or interpret a provision of the Constitution or any other law in a manner

(a)…….

(b)…….

(c)…….

(d) that avoids technicalities and recourse to niceties of form and language which defeats the purpose and spirit of the Constitution and of the laws of Ghana.”

 

In the recent case of Ashanti Goldfields Co. Ltd. v. Westchester Resources Ltd. and

Ashanti Goldfields Co. Ltd. v. Africore (Gh) Ltd. (Consolidated) (Unreported) Civil Appeal No. J4/63/2013 dated 11th November, 2015, Atuguba, JSC said at page 5 as follows:

 

“Technical justice is not favoured in the modern judicial process.”

 

So I shall proceed to consider the arguments of respective counsel for the two sides. Learned counsel for the appellant tackled his appeal by arguing ground 2 first. This ground (as already indicated above) is enumerated as ground (b) and is couched as follows:

 

“The learned trial judge’s order that the Plaintiff/Respondents be paid all salaries from the date of interdiction to the date of judgment is wrong in law and perverted in the face of the admitted and undisputed evidence at the trial that the Plaintiff/Respondents were paid their full salaries from the date of their suspension (termed as interdiction by the learned trial judge) to the date of their dismissal.”

 

Counsel’s argument on ground 2 can be summarized as follows: the trial judge’s order that the respondents be paid their salaries from the date of their suspension to the date of judgment is wrong as that relief was neither claimed nor proved at the trial. Counsel therefore contended that the trial judge had substituted a case proprio motu in place of the case of the respondents, citing the case of Esso Petroleum Co. Ltd. v. Southport Corporation [1953] 3 All ER 864, HL (as endorsed by the Ghanaian case of Dam v. Addo [1962] 2 GLR 200) in support of his argument. Counsel therefore urged us to overturn the order of the trial court. There was no direct response to these submissions from learned counsel for the respondents. All that he said was that damages were a natural consequence of injury or harm and once injury or harm was proved then damages flowed as a matter of course. I do not find this to be an adequate answer to the argument that the learned trial judge substituted a case propriomotu for the case of the respondent. Nowhere in their pleadings did the respondents ask for a refund of their salaries or prove that they were denied their salaries even during the period of their suspension. As pointed out by counsel for the appellant and confirmed by exhibits D (on page 88) and V (on page 153) of the record of appeal, both appellants were suspended on full salary. There was therefore neither evidentiary nor other legal basis for the trial court to have ordered that the respondents be paid all salaries from the date of interdiction to the date of judgment. Indeed, since a refund of their salaries was not part of the case of the respondents, that relief was neither pleaded nor claimed and the appellant could not be expected to lead any evidence in that regard. As was explained in holding (3) in the case of Dam v. Addo (supra) the function of pleadings is to give fair notice of a case which has to be met, so that the opposing party may direct his evidence to the issue disclosed by them. To condemn a person 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. Accordingly this ground of appeal is hereby allowed.

 

Ground 3 was argued next. It was enumerated as ground (c) and couched as follows:

 

“The learned trial judge’s decision awarding the Plaintiff/Respondent their salaries from the date of their interdiction to the date of their dismissal (i.e. salaries for a period of over 7 years) as compensation for wrongful dismissal is wrongful in law and per incuriam binding decisions on the measure of compensated to be awarded in such instant cases of Nartey-Tokoli v. Valco [1987-88] 2 GLR 532; Civil Appeal No. 14/18/2008 entitled Co. S.B.Ashun v. Accra Brewery Limited dated 12th November, 2008 & Kobi v. Ghana Manganese Co. Limited [2007-2008] 773; all of which limits the period of salaries to be awarded as damages for wrongful dismissal to between one year to two years.”

 

 

 

Counsel’s arguments pertaining to ground 3, as would be expected, were mainly legal. He contended that awarding damages in excess of a period of two years was wrong in law as there were a number of decided cases that limited the period to not more than two years, citing cases such as Nartey-Tokoli and Others v. Valco [1978-88] 2 GLR 532; Civil Appeal No. 14/18/2008 entitled Lt. Col. S.B.Ashun v. Accra Brewery Limited dated 12th November, 2008 & Kobi v. Ghana Manganese Co. Limited [2007-2008] 773. In his judgment, the learned trial judge had relied on the authority of the case of Akorkul v. State Housing Corporation [1991] 2 GLR 348where Osei-Hwere, J.A. (as he then was) had held that where a servant was wrongfully dismissed from his contract of employment, damages were to be measured by the amount of salary the servant had been prevented from earning from the date of interdiction to the date of judgment as well as damages for prospective loss of promotion and loss of employment. We cannot help but agree that the trial judge was obviously wrong as that case had long been overtaken by more superior authorities. In the case of Nartey-Tokoli and Others v. Valco [1978-88] 2 GLR 532it was held that where an employer terminated an employee’s appointment in breach of the contract of employment, he was liable to pay damages to the employee for up to fifteen months only. In the case of Ashun v. Accra Brewery Limited [2009] SCGLR 81 the Supreme Court (per Date-Bah, JSC) emphasized the point that an employee who had been wrongfully dismissed had a duty to mitigate his losses by taking steps to find alternative employment and that the measure of damages was the quantum of what the aggrieved party would have earned from his employment during such reasonable period, determined by the court. In the case of Kobi v. Ghana Manganese Co. Ltd. [2007-2008] 2 SCGLR 773 the Supreme Court held that fifteen months’ pay was adequate compensation for wrongful dismissal. In the case of Akuffo v. Issaka [1966] 1 GLR 476 the Supreme Court held that:

 

For an appellate court to set aside an award of a trial court it must be shown that the judge left some relevant matter out of account or that he took some irrelevant matters into account in assessing damages.

 

In the case on hand the trial judge failed to take stet the current law and practice. Taking the applicable law and all of these cases into account, we are of the view that the trial judge misapplied the law when he used the case of Akorkul v. State Housing Corporation (supra) rather than more binding authorities in arriving at his decision which, we hold, was decided, per incuriam. We therefore think that this ground of appeal ought to succeed. We accordingly uphold it. We hereby set aside the trial judge’s award of salary to each plaintiff/respondent and in lieu thereof award two years’ salary to each plaintiff/respondent.

 

Ground 4 is enumerated as ground (d) and couched as follows:

 

“The award of the sums of GH¢20,000.00 and GH¢15,000.00 to the 1st and 2nd plaintiff/respondents respectively by the learned trial judge as general damages for prospective loss of employment is a head of damages alien and unknown to our law and therefore erroneous and should be set aside as is the cost of GH¢5,000.00.”

 

It is the contention of counsel for the appellant that this head of award had the effect of treating the contract of employment in perpetuity, ignoring the fact that either party could give notice of his intention to terminate it and duly bring the contract to an end. Besides, the award now contravenes section 17 of the Labour Act, 2003 (Act 651) which provides that:

 

“A contract of employment may be terminated at any time by either party giving to the other party,

(a)  In the case of a contract of three years or more, one month’s notice or one month’s pay in lieu of notice.”

(b)   

We think these are valid arguments. In the case of Ashun v. Accra Brewery Limited (supra) it was held that a contract of employment, though for an indefinite period, was not a contract for life and was clearly terminable. Hence it did not give the plaintiff the right to be paid a salary till his retirement age. As has already been said, it was also held in the same case that an employee whose appointment had been wrongfully terminated had a duty to mitigate his losses by looking for alternative employment. Coupled with that is the statutory provision, as contained in section 17 of Act 651 that a contract of employment may be terminated at any time by either party giving to the other party notice of his intention to do so. The trial judge acted in violation of the law by awarding GH¢20,000.00 and GH¢15,000.00 respectively to the 1st and 2nd respondents as general damages for prospective loss of employment. In the first place the awards violated the principle that the respondents had a duty to mitigate their losses. Secondly it violated the principle of freedom of contract as enshrined in section 17 of Act 651. This ground of appeal is therefore upheld in part and the said awards are hereby set aside. Part of this ground of appeal refers to the award of costs. The principle in relation to costs is well known; it is within the discretion of the trial court to award costs. Nothing was urged on us to convince us that any wrong discretion was used in arriving at the costs. See the case of Nartey-Tokoli v. Valco (supra).We will therefore not disturb the costs awarded by the trial judge.

 

To all intents and purposes, ground 1 or (a) was abandoned and we shall treat it as such.

 

In conclusion, save for the costs, the appeal succeeds. It is therefore ordered that the respondents be paid the equivalent of two years’ salary of their pay as at the date of their dismissal.

 

The respondents shall also be entitled to all benefits or entitlements due them as employees as at the date of dismissal.