IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
BERNARD MENSAH-QUARM - (Plff/Appellant/Resp)
GHANA REVENUE AUTHORITY - (Def/Resp/Appellant)
DATE: 1ST NOVEMBER, 2018
CIVIL APPEAL NO: H1/110/2018
JUDGES: P. K. GYAESAYOR JA (PRESIDING), E. K. AYEBI JA, TANKO AMADU JA
MR. ALI GOMDA ABDUL-SAMAD FOR APPELLANT
MR. MAXWELL OWUSU BUADI FOR RESPONDENT
1. This is an appeal and cross-appeal against the judgment and a ruling of the Human Right, Divorce, Labour and Financial Division of a High Court, Accra. The judgment was delivered on 28th April 2017 while the ruling was delivered on 5th July 2017.
2. Reliefs sought by plaintiff at the Trial Court
By his amended writ of summons, the plaintiff/appellant/respondent (hereinafter referred to as plaintiff), claimed against the defendant/respondent/appellant (hereinafter referred to as defendant), the following reliefs:
(i) An order against the defendant to restore the plaintiff to the employment of the defendant.
(ii) A further order requiring the defendant to pay all the plaintiff’s entitlements including his full salary from August 1998 to date.
(iii) Interest on relief (ii) above
(iv) General damages for wrongful termination of the plaintiff’s half salary since in or around June 2005.
(v) Further or in the alternative an order compelling the defendant to pay to the plaintiff damages for wrongful arrest and/or malicious prosecution.
(vi) Costs including costs incidental to this suit and any other relief(s) the court may deem fit to give.
3. Plaintiff’s Case
In November 1989, the plaintiff was employed by the predecessor of the defendant, the Customs Excise and Preventive Service (CEPS). In 1998, plaintiff rose to the rank of Collecting Assistant grade I and his duty post was at the James Town Office. In September the same year, plaintiff was accused of aiding and abetting the smuggling of six (6) containers of frozen chicken from the Tema Port and was asked to report to the Bureau of National Investigations (BNI). In course of the investigations, the BNI detained him. He was later charged and arraigned before the Regional Tribunal in Accra.
4. Pursuant to the 1998 Conditions of Service of Staff of CEPS, then in force, plaintiff’s employer interdicted him and placed him on half salary pending the determination of the case against him. However in 2003, the judge hearing the case was transferred and since then to date, the hearing of the case has stalled. And pursuant to new Conditions of Service for Staff of CEPS which came into force in 2003, the plaintiff’s employer, CEPS, stopped the payment of the half salary although the interdiction was still in force.
5. In November 2005 and February 2010 respectively, the plaintiff petitioned the Judicial Service about his plight, since according to him the Regional Tribunal has been abolished. On 5th December 2011, the Judicial Service informed the plaintiff to request his lawyer to “take appropriate steps to have the matter pending in court concluded in one way or the other, in view of the fact that the docket cannot be traced”.
6. It is the case of the plaintiff that as he has always contended, the defendant had no basis to cause his arrest and prosecution, hence defendant’s lack of interest in the matter. It is plaintiff’s view that the defendant has since abandoned the case against him, hence the reliefs as endorsed on the writ of summons.
7. Defendant’s Case
The defendant’s case was presented by a Human Resource Officer of the erstwhile CEPS who is still an officer in the same department of the defendant. He stated that on account of having been arraigned before the Regional Tribunal charged with a felonious offence, the defendant (CEPS) interdicted the plaintiff and placed him on half monthly salary in accordance with section 16.1 of the 1998 Conditions of Service for Staff of CEPS (Exhibit 2). But in 2003 a new Conditions of Service for Staff came into force. Pursuant to section 17(a) of the new Conditions of Service, the payment of half monthly salary to an interdicted staff shall not exceed one year from the date of interdiction (Exhibit 3). And since the plaintiff was still a staff of the defendant on interdiction, the new Conditions of Service applied to him, defendant contended. So in August 2005, one year after the new Conditions of Service became operational, the defendant stopped the payment of half monthly salary to the plaintiff.
8. It should be added that the further provision in section 17 is that should the plaintiff be discharged or acquitted and discharged by the Tribunal, the interdiction would be lifted and he would be reinstated with the payment of full entitlements due him during the period of interdiction by the Commissioner. In 2005, the plaintiff alleging that he had been discharged by the Tribunal, wrote to the defendant to lift the interdiction and reinstate him.
9. The defendant refused to accede to plaintiff’s request because information available to the defendant from court proceedings showed that three other officers of the defendant minus the plaintiff were discharged. And in compliance with the Conditions of Service, those three officers were re-instated and paid their full entitlements.
10. It is the contention of the defendant that the relationship between the plaintiff and defendant is anchored on a contract of employment. The plaintiff’s cause of action arose in 2005, when the defendant refused to accede to his request to be recalled and reinstated. This action having been brought ten (10) years when the defendant turned down the plaintiff’s request, the action is statute-barred and should not be countenanced by the court. Secondly, since the case against the plaintiff has remained unresolved in his favour, plaintiff cannot be entitled to the reliefs he sought against the defendant.
11. Judgment and Orders of Trial Court
The trial judge after evaluating the evidence of the parties, on 28th April 2017, held as follows:
(a) The court has found as a fact that the plaintiff failed to establish that he has been acquitted and discharged of the alleged felonious offence. In view of this his relief (i) fails and is hereby dismissed.
(b) Again, the plaintiff’s relief (ii) fails. He is however entitled to the arrears of his monthly half salary from June 2005 to date because Exhibit 2 (sic) (2003 Conditions of Service for Staff) did not apply to him. The defendant is hereby ordered to pay the plaintiff’s salary arrears.
(c) I again order that interest at the prevailing bank rate on the arrears of his half salary be paid to him.
(d) The court is of the view that the plaintiff is not entitled to general damages for the wrongful termination of his half salary. Plaintiff’s relief (iv) is thus dismissed.
(e) The plaintiff is again not entitled to his relief (v) in view of my finding above. Same is hereby dismissed.
(f) I hereby award costs of Two Thousand Ghana Cedis (GH¢2,000.00) in favour of the plaintiff.
12. Objection to Entry of Judgment and Ruling
The plaintiff on 22nd May, 2017 filed an Entry of Judgment purportedly based on the orders of the court in the judgment. But on 30th May 2017, defendant filed a motion praying the court to set aside the Entry of Judgment because it did not accurately reflect the orders of the court. On 5th July 2017, the court in a short ruling set aside the Entry of Judgment and ordered the parties, with the assistance of the Registrar to go into accounts to determine the correct amount due the plaintiff as arrears of half monthly salary from 2005 to 2017.
13. Notice of Appeal by the Plaintiff
The plaintiff, dissatisfied with both the judgment and the ruling which set aside his Entry of
Judgment, filed this appeal on 19th July 2017. The grounds of appeal are:
(a) The learned trial judge erred in not re-instating the plaintiff in the employment of the defendant as no case is pending against him.
Particulars of error
(i) The non-existence of the Regional Tribunals is known to the court.
(ii) The plaintiff does not control or determine the course of his prosecution if the case is still pending.
(iii) The trial judge has authority to determine that in the circumstance of the trial of the plaintiff that the trial has been abandoned and/or terminated and the plaintiff deemed discharged.
(b) The learned trial judge erred in not re-instating the plaintiff on the payroll of the defendant on his half salary.
Particulars of error
(i) The defendant admitted that the plaintiff is still an employee of the defendant on interdiction.
(ii) The trial judge found that the cessation of the half salary of the plaintiff whilst on interdiction by the defendant was wrong.
(c) The learned trial judge erred in setting aside the entry of judgment or portions of it.
Particulars of error
(i) The defendant admitted that the plaintiff is still an employee of the defendant on interdiction.
(ii) The effect of ordering the withheld half salary to be paid from June 2005 to date in the judgment meant the re-instatement of the plaintiff on the payroll of defendant on the half salary pending the discharge of the plaintiff.
(iii) The trial judge found that the cessation of the half salary of the plaintiff whilst on interdiction by the defendant was wrong.
(iv) The current salary of the plaintiff’s grade, Revenue Assistant I (notch 3) should be the basis of calculating the salary withheld over the years.
(d) The judgment and ruling are both against the weight of evidence before the learned trial judge.
14. Notice of Appeal by the Defendant
Perhaps unknown to the defendant that the plaintiff has appealed against the judgment and the ruling, defendant also filed an appeal against the judgment on 26th July 2017. Defendant’s grounds of complaint are that:
(a) The judgment is against the weight of evidence.
(b) The trial judge erred in holding that the action of the plaintiff is not statute barred.
(c) The trial judge erred in holding that recruitments and dismissal (or for that matter employees of the erstwhile CEPS) is not subject to the Limitation Act.
15. Law on Cross-appeal by a Respondent and Objection Raised by Plaintiff
It is noticed from the record of appeal that only seven days separated the two notices of appeal filed by the plaintiff and then the defendant. In the Rules of Court, C.I. 19, there is no room for a respondent who has been served with the appellant’s notice of appeal to also file another notice of appeal as an appellant.
16. What the Rules of Court provide for is a “Notice for variation of Judgment”. Thus at the hearing of the appeal the plaintiff in accordance with the Rules contended that the notice of appeal filed by the defendant on 26/07/17 is incompetent. This is because in Rule 15 of C.I. 19, it is directed that it is not necessary for a respondent who intends at the hearing of the appeal to contend that the decision of the trial court should be varied, to give notice by way of cross-appeal.
17. Rather, what rule 15 requires of a respondent who intends to contend that the judgment be varied is to, within one month after service of the notice of appeal, give a written notice in the Form 7 set out in Part One of the Schedule. In the said notice, the respondent must specify the grounds of his contention and the precise form of the variation he seeks. The defendants notice of appeal having been filed after the plaintiff’s notice of appeal, on the face of it was filed in violation of this rule 15 of C.I. 19.
18. But then the plaintiff did not argue the objection so raised as a preliminary issue at the hearing of the appeal. Plaintiff did not profer any submission on the issue in his written submission either. From the record of appeal, we found no evidence that the defendant had notice of plaintiff’s notice of appeal filed on 19/07/17 when she filed her notice of appeal on 27/07/17. So although the defendant’s notice of appeal appears to have been filed contrary to the Rules of Court, we do not find that the non-compliance was a deliberate act. Accordingly, pursuant to Rule 63 of C.I. 19, we waive the non-compliance and amend and deal with the notice appeal of the defendant filed on 26/07/17 as “Notice for variation of judgment”.
19. The plaintiff also raised in the same notice of preliminary objection, the competence of grounds (ii) and (iii) in the defendant’s notice of appeal. The counsel for plaintiff argued in the written submission that contrary to rule 8(4) of C.I. 19 which required that if a ground alleged misdirection or error in law, particulars of the misdirection or error shall be clearly stated, defendant failed to specify in grounds (ii) and (iii), the particulars of misdirection or error in law alleged – see Dehabieh vrs S. A. Turqui & Bros [2001/02] SCGLR 498, which held that in such a case the non-compliant ground of appeal is inadmissible.
20. The counsel for the plaintiff observed that the defendant’s counsel concealed the defect in grounds (ii) and (iii) by arguing all the three grounds of appeal together as if the only ground of appeal is the omnibus ground that the judgment is against the weight of evidence. The submission relied on the dictum of Dr. Twum JSC in Brown vrs Quarshigah [2003/04] 2 SCGLR 930 that an appellant who alleges only that the judgment is against the weight of evidence should not be allowed to argue points of law in the appeal.
21. That statement of law is not an inflexible one, especially so where the issues involved mixed fact and law. So the authority of that dictum in Brown vrs Quarshigah (supra) has been eroded/denuded in the recent case of Owusu-Domena vrs Amoah [2015/16] 1 SCGLR 790 at holding (2), where the court cited with approval the dictum of Georgina Wood JSC (as she then was) in Attorney-General vrs Faroe Atlantic Co. Ltd. [2005/06] SCGLR 271 at 306 and held that:
“Where the appeal was based on the omnibus ground that the judgment was against the weight of evidence, both factual and legal arguments would help advance or facilitate a determination of the factual matters”
22. In this case however, apart from the omnibus ground one, grounds (ii) and (iii) alleged error in law. In that case, it is within the remiss of law when the defendant argued points of law as well. The issue however is whether grounds (ii) and (iii) as they were couched are competent to be admitted. The central defence of the defendant to plaintiff’s claim is that the action is statute-barred. It is that defence which grounds (ii) and (iii) seek to vindicate. In one way or the other ground (iii) in my view amplifies ground (ii) on the same defence of violation of the Limitation Act. In the circumstances, in order to do justice to the case of the defendant, we will consider grounds (ii) and (iii) as competent for the determination of defendant’s contention to vary the judgment in her favour.
23. In the circumstance, we well determine the merits or otherwise of the appeal on the basis of the four grounds of appeal filed by the plaintiff in addition to the defendant’s ground (ii) specified in the defendant’s notice to contend that the judgment be varied. I single out ground (ii) in the notice because all the submissions of the defendant centered on the issue of limitation of plaintiff’s claim.
24. Ground (ii) of Defendant’s Appeal
Accordingly, we think it proper to determine defendant’s ground (ii) which contends that the plaintiff’s action is statute-barred first. This is because this plea of limitation is a statutory defendant which strikes at the root of plaintiff’s writ of summons and if found tenable will deny the trial court jurisdiction. The ground of appeal arose from the finding of the trial judge that the plaintiff’s action is not statute-barred because the statute which set up the defendant regulates the recruitments and dismissals of defendant’s officers and is not subject to the Limitation Act.
25. The counsel for the defendant however submitted that the relationship between the plaintiff and defendant is a contractual one governed by the Conditions of Service of Staff of the erstwhile CEPS. The plaintiff’s claim in this action is therefore a contractual right. The plaintiff’s action therefore is subject to the Limitation Act, 1972 (Act 54), specifically section 4 (1)(b). It is provided therein that:
Section 4: Actions barred after six years:-
(1) A person shall not bring an action after the expiration of six years from the date on which the cause of action accrued, in the case of.
(b) An action founded on simple contract.
26. It is counsel’s submission that the relationship between plaintiff and defendant is founded on simple contract which according to the text-writer Cheshire, Fifoot and Furmston’s Law of Contract (12th Edition) is “agreement made either by word of mouth or in writing” as distinct from contracts under seal or specialty contracts. He observed that the trial judge relied on the definition of a simple contract in Black’s Law Dictionary which although recognized simple contracts as agreements made orally or in writing, held otherwise erroneously.
27. Being a simple contract counsel argued, plaintiff’s cause of action arose in 2005 when the defendant turned down the plaintiff’s request that his interdiction be lifted and he re-instated because he has been discharged by the Regional Tribunal (Exhibits 5 and 6 at pages 135 and 137 of the record of appeal). According to counsel in 2005, plaintiff became aware that his contract of employment has been terminated by the defendant. Despite that knowledge, the plaintiff waited until eleven (11) years after 2005 to launch this action. The action was thus launched contrary to section 4 (1)(b) of Act 54.
28. In opposing the submission of counsel for the defendant, counsel for the plaintiff submitted that the employment relationship between the parties was not based only on contract but also on the Constitution and Statute. But counsel was however not certain/sure that was reason why the trial judge held that it was not a simple contract. Continuing, counsel referred to Article 190 of the Constitution which recognized the erstwhile CEPS and Internal Revenue Authority as part of the public service. He also referred to Article 191, which says that a public officer shall not be removed from office without just cause. Counsel also referred to the case of Tuffour vrs Attorney-General  GLR 637 which held that an act or conduct which is contrary to the express or implied provisions of the Constitution cannot be validated by the equitable doctrine of estoppel. Relying on that principle, counsel submitted that the enforcement of the constitutional right of the plaintiff cannot be time bound.
29. I need to pause and analyse plaintiff’s counsel’s submission so far on the issue of limitation of plaintiff’s claim. It is noted that the plaintiff by his claim is not challenging the lawfulness of his interdiction. The plaintiff’s action did not seek any declaratory relief, neither did he seek the enforcement of a constitutional right. The plaintiff’s action/claim must be determined on the basis of the reliefs endorsed on the writ of summons and his pleaded case.
30. If the plaintiff’s action is for the enforcement of a constitutional right as argued by counsel, then clearly, the High Court is not the forum to go to seek redress. Like any other public service institution, the erstwhile CEPS was established by the Constitution as such. But the plaintiff’s employment was pursuant to the contract he entered into with CEPS. The issue in contention is whether pursuant to the Conditions of Service of the defendant pursuant to the contract of employment, the plaintiff’s interdiction should be lifted and he be re-instated. The Tuffour case (supra) has no relevance or application in this matter. Clearly, counsel for plaintiff’s determination not to admit the obvious fact that the employment relationship between the parties is governed by a simple contract has led him to stray into the area of enforcement of a constitutional right under article 2, a remedy which the Supreme Court alone can provide. We find and hold that the employment relationship between the plaintiff and defendant is governed by a simple contract. The trial judge therefore erred in holding otherwise
31. Again the contention of plaintiff’s counsel suggests that once the plaintiff’s employment is not based on simple contract, the instant action cannot be statute-barred. That contention cannot hold any water because a statute of Limitation is enacted for a purpose. It is to require diligent prosecution of known claims thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh. Stated differently, statutes of limitation are designed to promote justice by preventing surprise through revival of claims that have been allowed to slumber until evidence has been lost, memories have faded and witnesses have disappeared. Indeed counsel for the plaintiff vindicated this purpose of statute of limitation when submitted that in view of the fact that the prosecution of the criminal case against the plaintiff has stalled or has been abandoned since 2003, justice will not be seen to be done should the case be listed for continuation now.
32. So is the plaintiff’s action arising out of a simple contract as I have determined statute-barred? Counsel for the defendant had made his submission loud and clear. In paragraph 2.7 of the plaintiff’s unnumbered written submission, he considered it unconscionable and unlawful for the employer (defendant) who has interdicted him without any time duration to turn around to say that his action is statute-barred. Further in paragraph 2.10, the plaintiff observed that the refusal of the defendant to reinstate him in 2005 according to defendant is because he could not prove that he had been discharged by the Regional Tribunal. That meant that the defendant still had basis to maintain the interdiction. That being so, the stoppage of the half monthly salary in 2005 cannot be the basis of an accrual of a cause of action. These submissions in my view are unassailable.
33. As I stated earlier, the plaintiff’s case will be determined on the facts as pleaded. The plaintiff was interdicted in 1999 and placed on half-salary. In the same year he was arraigned before the Regional Tribunal. In 2003, the prosecution of the case stalled when the trial judge was transferred.
Based on the new Conditions of Service which came into force in 2003, (Exhibit 3), defendant stopped the payment of the half monthly salary in 2005. In the same year, plaintiff wrote to the defendant to reinstate him. Defendant turned down the request because he failed to prove that he had been discharged by the Regional Tribunal.
34. Since then, the plaintiff had continued to be on interdiction without even the half monthly salary. The basis of the plaintiff's claim in this suit as pleaded and stated variously is that his prosecution on the criminal charge has not only stalled but has been abandoned all these years. Further, according to the Judicial Secretary, the docket on the case cannot be traced.
35. Defendant does not dispute or deny these facts. Defendant unequivocally acknowledged them. It is noted that the plaintiff has not based his claim in this suit on his demand to be reinstated and refusal by the defendant in 2005, which is the basis of defendant’s submission that the action is statute-barred. Rather, plaintiff’s claim is based on the fact that he is still on interdiction and yet the prosecution of the criminal charge against him had not only stalled but had indeed been abandoned.
36. How then can the defendant be heard to rely on the statute of limitation conscientiously when the matters alleged by the plaintiff have been acknowledged by the defendant and they are still in existence without any hope and sign of abatement? We are on the facts of this case persuaded to reject the contention of the defendant that the action is statute-barred and it is so rejected.
37. Cessation of Half Monthly Salary Based on Article 17 of Exhibit 3
Now in 1999 when plaintiff was interdicted and placed on half monthly salary, the Conditions of Service of Staff, Exhibit 2 was in force. That Exhibit 2 was replaced by a new Conditions of Service, Exhibit 3 in 2003. The trial judge held that Exhibit 3 should not be applicable to the plaintiff’s situation. I believe the trial judge held so because of the new provision in Article 17 of Exhibit 3 which limits the payment of half salary to an interdicted officer to one year because that provision is unfavourable to the plaintiff. But I disagree with the trial judge because as stated by the defendant, despite being on interdiction, the plaintiff was and is still regarded as a staff. Article 17 of Exhibit 3 is headed “Interdiction” and it says:
“(a) If an officer is involved in a case of misconduct and is under investigation by the Service, the said officer shall be interdicted and may be paid one half of his monthly salary during the period of interdiction as may be determined by Management. Such period shall not exceed one year from the date of interdiction.
(b) Where an officer is charged by the State for any criminal offence, he shall for all purposes be deemed to be an officer under investigation by the Service for misconduct and shall be treated as provided under Article 17(a)
(c) Where an officer is acquitted and discharged of a felonious offence his salary and other entitlements due him during the period of interdiction or prosecution shall be paid to him.
(d) Where an interdicted officer is acquitted of a felonious offence his interdiction shall be lifted by the Commissioner”.
38. Article 17(b) need to be interpreted and applied within the context of Article 17(a). In Article 17(a), Management may place an interdicted staff under investigation for a misconduct on half monthly salary for a determinable period but which period shall not exceed one year from the date of interdiction. Similarly, Article 17(b) says that an officer who has been charged by the State for a criminal offence shall be deemed to be an officer under investigation by the Service. Since the arraignment before the court or prosecution is equated to an investigation by the Service, the officer will naturally be interdicted and may be placed on half monthly salary for a period determined by Management but which period shall not exceed one year.
39. The phrase “shall be deemed to be” means to treat or consider, or think or judge something or situation as something else. It is used to give a legal fiction or outlook to a situation when in fact it is not so. The investigation of an officer under clause (a) and prosecution under (b) are in fact not the same. But clause (b) has provided that prosecution should be treated or considered as an investigation – see Tuffour vrs Attorney-General  GLR 637 at holdings (5) & (6).
40. The investigation of an officer for a misconduct is triggered by complaint by defendant. Although plaintiff’s evidence that it was defendant who asked him to report to the BNI for investigation is not contradicted, defendant is denying that she is the complainant in this matter. But once the investigation of the complaint has been referred to or taken over by an external body, all that defendant as well as plaintiff can do is to co-operate with the investigative body. The defendant in particular cannot in such a situation expedite the investigation so that the period of interdiction of an officer shall not exceed one year. It is the same scenario which is experienced when it comes to the prosecution of the officer by the office of the Attorney-General as in the instant case.
41. It is my candid opinion and I hold that the provision that the payment of half monthly salary to an officer on interdiction under investigation should not exceed one year should apply to investigations being carried out internally and controlled by the defendant herself. Where as in the instant case, the prosecution of the plaintiff is in the domain of the Attorney-General and the prosecution has stalled since 2003 through no fault of the plaintiff, the stoppage of plaintiff’s half monthly salary by defendant since 2005 amounts to literal application of the law resulting in a denial of justice.
42. Pursuant to clauses (c) and (d) in Article 17, until the plaintiff is either discharged or acquitted and discharged, his interdiction cannot be lifted and he be reinstated by the Commissioner. On the other hand, unless the plaintiff is convicted by the court of competent jurisdiction, the Commissioner cannot terminate his contract of employment and dismiss him. That is why the defendant in 2005 refused the request of plaintiff to reinstate him. Since then nothing has changed. The question is for how long should plaintiff continue to live in abeyance or in this limbo?
43. In clause (a) of Article 17 of Exhibit 3, Management of the defendant is given the discretion to order payment of half monthly salary to the plaintiff while on interdiction. Management also has the discretion to determine the period of payment of the half monthly salary. According to Article 296 of the 1992 Constitution, the exercise of discretionary power implies a duty to be fair and candid. The defendant’s Management as an administrative body is enjoined by Article 23 to act fairly and reasonably. Admittedly, laws are made to regulate and control the conduct of human affairs. But the laws must be applied to ensure justice but not injustice. On the particular facts of this case, we are unable to hold that defendant exercised its discretion fairly and reasonably when she stopped the payment of half monthly salary to the plaintiff in 2005 because regulation or law so provides.
44. Equity it is said follows the law but not slavishly. Hence equity will not suffer a wrong to be without a remedy in a court of law. Therefore no wrong brought before a court must go unredressed if it is capable of being remedied. The right of the plaintiff to work and earn income in dignity has been hanging/suspended all these years because of either lack of interest, inaction, negligence or shear insensitivity to his plight by both the complainant and the prosecution of the criminal case. Our Registry cannot escape blame either when the docket on the case cannot be traced.
45. In the circumstances, the least which a court of law which is also a court of equity can do for the plaintiff is to restore the payment of the half monthly salary to him as he is still interdiction. We therefore affirm the trial judge’s order that arrears of the half monthly salary with interest be paid to him.
46. Ground One of Plaintiff’s Appeal
The above conclusion naturally herald our view on ground one of plaintiff’s appeal. In 2005, plaintiff asked that he be re-instated by the defendant. The defendant refused the request because the condition precedent stipulated in Exhibit 2 which is the same as in Exhibit 3 had not occurred or been satisfied. At the time the plaintiff launched this suit in 2014, the condition had not changed, that is to say the plaintiff was neither discharged nor acquitted and discharged of the criminal offence against him by a court. Therefore the refusal of the trial court to reinstate the plaintiff as prayed for in relief (i) is amply supported by the evidence before the court.
47. But the plaintiff argued that although Tribunal as court of law still exists in the Constitution, it does not in fact exist. And the trial court should have taken judicial notice of this fact and give effect to it in favour of the plaintiff. To say that the Tribunals do not exist when they still have a place in the Constitution cannot be accepted in law. The situation on the ground now is that, although the Tribunals exist de jure they are de facto non-functional. As stated in the Constitution, and repeated in the Courts Act, 1993 (Act 459) as amended, the High Court can exercise all the jurisdiction of a Regional Tribunal.
48. So by the powers conferred on the Chief Justice, the Tribunal could be activated by the nomination of any High Court Judge to sit as Chairman to hear plaintiff’s case. On the other hand, the case could be transferred from the Tribunal to any High Court for determination. It will therefore be hasty for us to agree to plaintiff’s submission that the criminal case against the plaintiff has been abandoned because the Regional Tribunals have ceased to exist.
49. Recounting the powers conferred on the High Court by Article 140 of the Constitution, counsel submitted that the trial High Court could have legitimately pronounced on the pendency or otherwise of the criminal case. Indeed the jurisdiction of the High Court is available to all aggrieved parties who properly invoked it. In Exhibit D, the Judicial Service advised the plaintiff to take appropriate legal steps to have the matter in court concluded in one way or the other in view of the fact that the docket cannot be traced. Despite this advice, the plaintiff neither asked that the criminal case be struck out for want of prosecution nor prayed for an order declaring that the case has been abandoned. Rather, all the substantive reliefs the plaintiff prayed for suggest that the criminal case has been determined one way or the other, which is not the case. Accordingly, we dismiss this ground of appeal.
50. Ground Two of Plaintiff’s Appeal
In ground two, the trial judge is faulted for not re-instating the plaintiff on the payroll of the defendant on his half monthly salary. I have already determined this issue in favour of the plaintiff. It is however argued for the defendant that the trial judge having held that the cessation of the half salary to the plaintiff amounted to constructive dismissal and it was a wrongful act, it would have been inconsistent to order that the plaintiff’s half salary be reinstated. But if it is agreed that until the criminal case against the plaintiff is determined one way or the other, the plaintiff could not be reinstated to his job and defendant could not lawfully dismiss him, then the constructive dismissal as determined by the trial judge was wrong in law.
51. And but for the pendency of the criminal case, the trial judge could have awarded damages in favour of the plaintiff. The defendant had stated severally that although plaintiff is on interdiction, he is still a staff. The only evidence to show that plaintiff is a staff on interdiction is the payment of the half monthly salary to him. That is why I have held earlier on that the cessation of the half salary under clause (a) of Article 17 of Exhibit 3 was not a proper exercise of the discretion by defendant on the particular facts of this case. As at today, the plaintiff is still on interdiction. He is therefore entitled to the half monthly salary until the criminal case pending against him is determined. The complaint in ground two is justified and we uphold it.
52. Ground Three of Plaintiff’s Appeal
Ground three of appeal relates to ruling of the trial judge which set aside the Entry of Judgment filed by the plaintiff. The trial judge disallowed Entry Number 5 which stated “An order directed at the defendant to reinstate the plaintiff’s half salary”. In our view the Entry No. 5 should not have been disallowed because it is implied in the order of payment of arrears of half monthly salary from 2005 to date of judgment with interest. The said order is not in the character of an award of special damages. Since the circumstances which led to cessation of payment of the half salary have not abated and plaintiff is still on interdiction and to avoid another action in the future to claim the half salary, the Entry No. 5 is in order and it is allowed.
53. We however reject the contention of the plaintiff that the calculation of arrears of half monthly salary from 2005 to 2014 should be based on the 2014 salary of staff of equivalent rank of the plaintiff. It is ridiculous for plaintiff to contend that 2003 Conditions of Service which provided for stoppage of his half salary after one year do not apply to him but now turned round to claim arrears based on 2014 salary only and with interest.
54. Over the years, salaries have been reviewed upwards. The salary of a staff of defendant of the rank of plaintiff in 2008, 2010 or 2012 is not the same as in 2014. The claim of the plaintiff if acceded to will amount to unjust enrichment at the expense of defendant, a public institution. We also note that the formula used in the calculation of end of service benefits or pension of a retired worker has no application in the calculation of the arrears of plaintiff’s half monthly salary. That contention in our view is misplaced and to that extent, we dismiss this ground of appeal.
55. The Ground That the Judgment is Against the Weight of Evidence
The last ground of appeal is that the judgment is against the weight of evidence. This is a common ground in plaintiff’s appeal and defendant’s cross-appeal. Where an appellant alleged that the judgment of the court below is against the weight of evidence, there is a presumption that the judgment on the facts is correct. In that case the burden lies on the appellant to show from the evidence on record that the judgment was indeed against the weight of evidence. It is also trite learning that an appellate court is a rehearing court. The appellant, by demonstrating to the appellate court in what way the judgment is against the weight of evidence, the appellate court is duty bound to comprehensively review the whole case by analyzing the entire record of appeal, taking into account the testimonies and all documentary evidence adduced at the trial as a guide upon which to satisfy itself that on the preponderance of probabilities, the judgment appealed against is reasonably or amply supported by the evidence on record.
56. This is the duty we discharged when we determined the grounds of appeal on each issue raised. Flowing from that review of the record of appeal, except for ground (2) of plaintiff’s appeal, we find and hold that the judgment is not against the weight of evidence. Similarly, having dismissed the defendant’s ground of cross-appeal that the claim or action of the plaintiff is statute-barred, we hold that the judgment is not against the weight of evidence in that regard. In conclusion, the plaintiff’s appeal is allowed in part and defendant’s cross-appeal is dismissed.
E. K. AYEBI
(JUSTICE OF APPEAL)
P. K. GYAESAYOR I agree P. K. GYAESAYOR
(JUSTICE OF APPEAL)
TANKO AMADU I also agree TANKO AMADU
(JUSTICE OF APPEAL)