• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL (CIVIL DIVISION)
  ACCRA - A.D 2018
  

GHANA INSTITUTE OF MANAGEMENT AND PUBLIC ADMINISTRATION - (Defendant/Appellant)

vs.

YEKSON EMMANUEL KUGBLENU - (Plaintiff/Respondent)

JUDGMENT

---

AGYEMANG JA:

In this appeal the defendant/appellant (hereafter referred to as the defendant, or the appellant), prays this court for an order setting aside the judgment of the High Court (Financial Division) Accra, delivered on 6th June, 2016.

 

These are the antecedents of the instant appeal:

 

Until 10^th June 2013, the plaintiff/respondent (referred to hereafter as the plaintiff, or the respondent) was enrolled in the two-year Master’s programme at the defendant/appellant’s School of Governance and Leadership. He was dismissed on the said date for misconduct. The plaintiff commenced an action against the defendant at the court below seeking a declaration from that court that his dismissal was unconstitutional and wrongful, as well as damages of GH¢ 200,000 and costs. At the end of a full trial, the learned trial judge entered judgment for the plaintiff, granting the declaration sought, as well as damages of GH¢ 120,000 and costs of GH¢1,000. This is the subject of the instant appeal.

 

The matters leading to the dismissal of the plaintiff which in turn led to the institution of the suit the subject of this appeal, are as follows:

 

The plaintiff having been enrolled as a student of the defendant institution in the 2012/2013 academic year, was required to pay fees in the sum of USD8,650 for the two years. The fees were to be paid in two instalments of at least half of the sum in the first year, and the balance outstanding, during the second year.

 

On the 3^rd of August 2012, the plaintiff personally handed over a Unibank cash deposit slip evidencing the payment of the sum of GH¢4050 (Four Thousand and Fifty Cedis) being part payment of the required fees, to the defendant’s cash office.

 

The defendant’s Finance Office shortly thereafter, discovered that the said cash deposit slip had been tampered with in this manner: the original payment record of GH¢ 50 had inserted in front of the amount, the numbers Four and Zero. Thus the cash deposit slip read GH¢4050 instead of the original record of GH¢50. This curious matter was reported of the defendant’s Academic Board which referred the matter to the Students Affairs Committee (SAC) a procedure that was said to be in line with the defendant’s disciplinary procedure. The terms of reference of the SAC, was to investigate the matter, and report its findings to the Academic Board. On 6^thof December 2012, the SAC wrote to the plaintiff requesting for an explanation by close of 14^th December 2012 of “the inconsistencies and anomalies in the banking transaction”.

 

The said “inconsistencies and anomalies…” were: that on August 3, 2012, the plaintiff made a cash deposit of GH¢ 50 at UniBank’s Rajkumar Branch in Techiman; that on August 6 2012, he presented the deposit slip tampered to read GH¢ 4050 and obtained a receipt from the defendant’s cash office for that sum (Four Thousand and fifty Ghana Cedis).

 

It was the case of the plaintiff that he responded to this communication by doing three things:

 

First, the plaintiff wrote to the defendant to deny the charge that he had attempted to defraud the defendant, and furthermore, informed the defendant that he was the victim of fraud. In his letter, of 10^th December 2012, the plaintiff expatiated on the said fraud allegedly perpetrated on him thus: he recounted that to pay part of his fees to the defendant, he entered into an agreement with an organization called AGDII (sometimes written as AGBII) Tertiary Education Opportunity based in Sunyani, with offices in Kumasi, and in the business of giving credit facilities to tertiary students. The agreement was for the said organisation to pay the sum of GH¢4050 into the defendant’s bank account in favour of the plaintiff. He alleged that the organisation was introduced to him by a friend (whose name and contact details he supplied in that letter to the SAC). Giving further details of the transaction, the plaintiff alleged that to access the credit facility from that organisation, he was asked to register with the organisation by paying GH¢50 into a named account and to furnish security for the transaction. After this, he was to collect a cash deposit slip, being the evidence of the transaction, and present same to the defendant in part-payment of the school fees he owed.

 

The plaintiff alleged that after furnishing security of title deeds to his house and documents on his Mercedes Benz car as well as a copy of his admission letter to the said organisation AGDII (or AGBII), he was made to pay the sum of GH¢ 50 to a Ghana Commercial Bank account at Techiman in the name of Ibrahim Issifu as processing fee. Following this, he received information to collect the cash deposit slip evidencing payment of his school fees to the defendant, at the OA bus, Accra-Circle bus terminal at Accra. Having allegedly duly received the cash deposit slip, on 4^th August 2012, the plaintiff presented same to the defendant on 6^th August 2012.

 

The plaintiff proffered this explanation to the defendant regarding the discrepancy in the banking transaction and attached to his letter of explanation, a photocopy of the deposit slip indicating his payment of the GH¢50 processing fee, his application letter, and land document sent to the said AGDII (or AGBII).

 

The plaintiff’s second course of action was to report the matter to the Madina Police and then to the Police Criminal Investigations Department (CID), Headquarters, alleging that he was the victim of fraud. Following that report, he assisted the Police to track down and apprehend the culprit. He added that he kept the defendant informed about the progress made by the Police to apprehend the culprit in the fraudulent scheme by submitting a Police Report. The plaintiff alleged that in this effort, he was at one time, accompanied by the Police investigator and a team to see the defendant’s Registrar. He then gave hearsay evidence that on the said occasion, the Police investigator, one Inspector Samuel Agyakwa allegedly informed the said official that they were close to making an arrest in the saga and requested of the Registrar, that the defendant hold off disciplinary action against the plaintiff in the circumstance.

 

Lastly, the plaintiff stated that he paid the sum of GH¢5,000 being the school fees that ought to have been paid in the previous transaction.

 

The plaintiff alleged that the defendant, unmoved by his efforts and entreaties, as supported by information regarding on-going Police investigative efforts, the defendant dismissed the plaintiff per letter dated 10^th June 2013.

 

The charge upon which the dismissal was based was that the plaintiff falsified the bank deposit slip and defrauded the defendant.

 

It was the plaintiff’s case that shortly after he was dismissed, the pending police investigation resulted in the arrest and prosecution of the culprit: one Issifu Razak. The culprit was convicted on his guilty plea, and was sentenced to a term of imprisonment on 28^thSeptember 2013.

 

The plaintiff aggrieved, by the defendant’s conduct and action in the face of his pleas, the subsequent payment of the school fees, the arrest, prosecution and arraignment of the culprit which resulted in a conviction and sentence, and alleging that the SAC neglected to give him a fair hearing, wrote a petition to the Rector of the defendant.

 

The petition was widely copied, and its distribution included the President of Ghana. When no response was forthcoming from the defendant, the plaintiff brought suit at the court below.

 

It was the defendant’s case that the SAC, was competent under its statute to conduct investigations and make findings, and that the defendant applied the sanction of dismissal following the SAC’s findings. The defendant alleged that even so, the plaintiff was informed when he was dismissed that he could seek a review if he could present new evidence. Furthermore, the defendant stated that the plaintiff had a right to appeal the findings of SAC to the Rector of the defendant. Thus the defendant contended that not having done either of these, the plaintiff had not exhausted the grievance procedure laid down by statute, making the suit premature.

 

As aforesaid the court having heard the parties entered judgment for the plaintiff and this is the subject of the present appeal.

 

The defendant as appellant set out four substantive grounds of appeal which we reproduce in extenso:

 

The judgment is against the weight of the evidence;

 

That the learned trial judge erred in law and occasioned a grave miscarriage of justice when she held that the defendant did not give plaintiff a hearing;

 

That he learned trial judge erred in law and caused a grave miscarriage of justice when she held that the defendant had infringed Article 23 of 1992 Constitution of Ghana;

 

That the learned trial judge’s award of GHS 120,000 as general damages is contrary to the principles on award of damages and is excessive, having regard to the evidence on record.

 

We will first consider grounds a and c which complain that the learned trial judge erred when she held that the defendant did not give the plaintiff a hearing and furthermore, that its conduct was in breach of Article 23 of the 1992 Constitution.

Was the plaintiff given a fair hearing?

 

A fundamental principle underpinning our jurisprudence is that any tribunal whose determination or orders affects the rights of others must observe the rules of natural justice, including ensuring the protection of the right to a fair hearing.

 

The duty of such a body is succinctly described by the erudite authors of Halsbury’s Laws of England 4^th Ed. 93 at pp.76:

“A person or body determining a justiciable controversy between parties must give each party a fair opportunity to put his on case and to correct or contradict any relevant statement prejudicial to his view”.

 

 This includes the right of the party to be informed of the allegation against him and the grounds of such allegation as well as the evidence against him, and to permit him to respond to these.

 

Although this may take the form of an oral hearing, such is not a sine qua non where the party is able in written form to adequately put forward his case, see: Aryee v. State Construction Corporation

 

[1984-86 1 GLR 424]:

“A hearing did not necessarily, at all times, involve the physical presence of the employee before the board of directors to be examined viva voce. Where a board wrote to an employee drawing his attention to alleged acts of misconduct and impropriety, and invited a written explanation, it would be thought that the employee would have been given an opportunity to be heard. If the employee wrote back answering the queries, and offered explanations and justifications for his conduct, or otherwise upon "sober reflection" withdrew the allegations and insinuations and apologised for his conduct, then surely he would have taken advantage of the opportunity offered him and would have been heard. The board would then be entitled to take a decision on the basis of the answers, explanations, justifications or apologies given by the employee. The audi alteram partem rule would have been complied with;” see also: Awuku-Sao v Ghana Supply Company Ltd [2009] SCGLR 710 in which the learned Justices of the Supreme Court agreed with the trial judge’s finding as echoed by the Court if Appeal that: “The court is satisfied that the plaintiff was able to tell his side of the story through the document styled “Comments by Management” and by this process he was heard. The defendant did not breach the audi alteram partem rule.”

 

In casu, it is the case of the plaintiff that although he was given the opportunity to give a written response in his defence, it was not adequate; thus he was denied a fair hearing.

 

The defendant’s assertion that the plaintiff’s written response to the allegation set out in the SAC’s letter of 6^th December 2012, sufficed, was discountenanced by the learned trial judge who held that in face of exhibits B and E, the written explanation of the plaintiff did not constitute a fair hearing.

 

To recount the evidence led: it is common cause that the plaintiff was in fact invited telephonically on 6th December, 2012 to appear before the SAC but failed to show up when the committee sat. The plaintiff’s explanation was that he received the call on his mobile phone while he was driving from the Volta Region to Accra. He alleged - and this was not challenged in cross-examination, that he asked the caller the reason for the invitation but all he received was a brusque response that he was to present himself at 2.00pm of that day at the GIMPA Campus (UN Block down). According to the plaintiff, when he arrived at the Academic Registry which was the place of the scheduled meeting, there was no such meeting, and he was informed that he would be written to. Indeed as promised, on the 8^th of December 2012, the plaintiff received the letter from the SAC in which the allegation of malpractice was made against him complete with details regarding the alteration of the cash deposit slip. The plaintiff was asked to explain the inconsistencies and anomalies” in the banking transaction. In the plaintiff’s reply (exhibit B), he not only denied the allegation of tampering with the deposit slip, but he set out the circumstances under which such tampering became possible: that it was the act of a third party, (an NGO AGDII Tertiary Opportunity) to which he had entrusted the payment of his school fees to the defendant in the amount of GH¢ 4000. After the plaintiff gave his response in exhibit B, he procured a Police Report exhibit E, which set out his complaint to the Police and the commencement of investigations by the Police.

 

No doubt the manner in which the plaintiff was invited to the SAC meeting was inappropriate, in that he was not informed of the allegation against him, nor did the Committee wait for him to show up when he eventually did. It is however our view, that the letter of 6^th December 2012 which followed the aborted meeting of the SAC, adequately informed the plaintiff of the allegation of wrongdoing. By that letter also, the plaintiff was given up to eight days: 14^th December 2012 to give his response. The plaintiff chose to do so on the 10th of December 2012. In the said response the plaintiff raised the issue of the aborted meeting, but while he indicated his availability to ‘assist the committee of the school for any further investigation relating to (the) issue’, he did not indicate his desire for an opportunity to present fuller details orally, and there does not appear to be anything in the plaintiff’s response that suggested that there was more to his explanation than what he had set out.

 

In our view, that the SAC considered the plaintiff’s letter of 10^th December 2012 to be the plaintiff’s full and final explanation for the situation, and that they could rely on it to make their findings, was not unreasonable, and ought not to be faulted.

 

The learned trial judge found otherwise, stating simply that exhibits B and E, had persuaded her view. Exhibit B was the plaintiff’s aforesaid response of 10^th December 2012. Exhibit E was a Police Report authored not by the plaintiff, but by the Police indicating the complaint made by the plaintiff to them, and the fact that investigations had commenced. The learned trial judge failed to demonstrate how these documents persuaded her that the plaintiff was entitled to an oral hearing. Thus, she failed to adequately explain why she arrived at her conclusion in the face of the plaintiff’s comprehensive response contained in exhibit B, and the weight of authority that a viva voce hearing was not a sine qua non to a fair hearing.

 

The learned trial judge furthermore held that the defendant’s act was in breach of a constitutional provision: Article 23 of the 1992 Constitution. In the learned judge’s words: “As already established, the defendant did not act fairly by dismissing the plaintiff from the institution. The Defendant’s witness at page 5 of the proceedings for 22nd February admitted that the plaintiff together with the Police team were in his office to plead with him yet still they went ahead to dismiss the plaintiff as per exhibit F. It is in the light of this that the court finds as a fact that the Plaintiff was not given a hearing prior to his dismissal and in dismissing the plaintiff, infringed on Article 23 of the 1992 Constitution of Ghana”.

 

In our view, the said finding that the plaintiff did not receive a fair hearing does not find support from the evidence.

 

Although it is trite learning that we as an appellate court must be slow to set aside the primary findings of the trial judge, we are empowered to do so in certain circumstances among which is where the reasons given in support thereof are not satisfactory, see: Efissan v Ansah [2005-2006] SCGLR 943.

 

Did the defendants breach Article 23 of the 1992 Constitution?

 

Article 23 of the 1992 Constitution reads:

“Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.”

 

While we uphold the submission of the defendant that the plaintiff’s relationship with the defendant was one of contract which is in the area of private law, we disagree that the act of the defendant in terminating that contract and dismissing the plaintiff upon the proceedings of the SAC, was not an administrative act. The defendant by S. 2(1) of its enabling Act, Act 676 is a public tertiary institution, rendering a public service, inter alia, the promotion of education, training and services in the fields of leadership, business management and administration; the provision of professional, unbiased and dedicated advisory support services to various areas of Government to enhance their capacity for sustainable development and management; the promotion of the development of managerial skills for persons employed in the public and private sectors and non-governmental organisations and create awareness of the need for education, training and the provision of services in the fields of leadership, management and administration…

 

Like the West African Examinations Council whose act relating to examination candidates was said to be an administrative act in Awuni v West African Examinations Council [2003-2004] SCGLR 471, the committee set up under the defendant’s Academic Board to investigate and make findings on the conduct of the plaintiff was an administrative body which falls squarely within the ambit of Article 23 of the Constitution. The duty imposed by Article 23 of the Constitution on administrative officials to act fairly and reasonably, includes the duty to observe the rules of natural justice which includes the duty give a party a fair hearing, see per Kpegah JSC in Awuni’s case(supra).

 

As noted, the learned trial judge criticized the defendant’s action of carrying out its investigations independent of Police action, and thereby, held that the defendant breached the said constitutional provision. It is our view that she erred when she so held. This is because in the chronology of events leading to the plaintiff’s dismissal, the defendant which had the right to determine its procedure for the disciplining of its students having received communication from the plaintiff setting out with detail his side of the story, was not obliged, in the absence of information regarding the arrest, arraignment, conviction, and sentencing of a third party, to have regard to the verbal entreaties of Policemen on behalf of the plaintiff to the Academic Registrar, (not the SAC) to wait for the results of Police investigation.

 

The SAC, after hearing the plaintiff per exhibit B, established that the plaintiff personally presented a falsified cash deposit slip. The defendant’s decision to act on that finding of a duly constituted body that carried out investigations rather than to wait for the result of police investigations was not, in our judgment, fatal to the defendant’s decision-making as it did not breach its duty to act fairly and reasonably. This was so especially as the decision to dismiss was arrived at not hastily, but a year after the discovery of the falsification, and following investigations by the SAC tasked to make findings. Doubtless, in the face of the plaintiff’s explanation of the involvement of a third party, the defendant could have chosen to wait for Police investigations to conclude. Even so, we daresay that the commencement of Police investigation following the plaintiff’s complaint, did not rob the defendant of its right to follow its own procedures to effect the disciplining of students. It is not certain when the plaintiff furnished the defendant with exhibit E which was authored on 1^st February 2013. In his witness statement, the plaintiff asserted that he made this document available to the defendant’s Registrar, not to the SAC which was charged to make findings for report to the Academic Board. As aforesaid, exhibit E contained a record of the report made to the Police by the plaintiff and Police action which was said to be underway. The subsequent arrest, conviction, and sentence of Issifu Razak contained in a report authored on 26^th June 2013, sixteen days after the defendant had dismissed the plaintiff,(exhibits H and H1), may not be made to relate back to the act of the defendant which was done after the SAC presented its findings.

 

In the circumstance we find no evidence to back up the learned trial judge’s finding that the defendant failed to act fairly or reasonably as provided Article 23 of the 1992 Constitution (supra).

 

We uphold this ground of appeal also.

 

Beyond her holding that the dismissal of the plaintiff was unconstitutional and wrongful in that the plaintiff was not given a fair hearing, the learned trial judge further held that having paid up the school fees after the snafu, the punishment ought to have been mitigated. The learned trial judge also, in answer to the defendant’s claim that the instant matter was premature, held that the plaintiff had in fact exhausted all remedies and that the petition the plaintiff wrote to the Rector and circulated widely was the appeal that was provided for under the defendant’s regulations. Flowing from the finding of unconstitutionality and wrongfulness, the learned trial judge held that the plaintiff was entitled to damages in the sum of GH¢120,000 and costs.

 

The appellant complains that all these findings were against the weight of the evidence led. Was the said judgment supportable from the evidence led?

 

The first ground of appeal which complains that the judgment is against the weight of the evidence invites this court to rehear the matter. This is in line with Rule 8(1) of the Court of Appeal Rules CI19 and also in line with a plethora of authority, that we are empowered to evaluate the evidence led in its entirety, and come to our own conclusions in support of, or against the trial court’s findings, see: Tuakwa v Bosom [2001-2002] SCGLR 61.

 

In carrying out our duty, we are mindful of the presumption of the correctness of the judgment, and the caveat that we must be slow to set aside findings of the trial court which has the duty to make primary findings of fact, except where we find same to be perverse or otherwise incapable of support from the evidence, see: Oppong Kofi and Anor. v. Fofie [1964] GLR 174.

 

We will also have regard to both the facts as well as legal arguments that “help advance or facilitate a determination of the factual matters”, see: per Benin JSC in Eric Kwame Amoah v. Owusu Domena Civ. App. No. J4/13/2014.

 

In this case, the issues are narrow because many of the facts are not in dispute. It is common ground that the plaintiff presented a falsified bank deposit slip which, altered from GH¢50 to read GH¢4050, was an attempt to defraud the defendants, the provider of educational services, of the amount of GH¢ 4000.

 

There is no controversy about the fact that the plaintiff, a student who had contracted to pay school fees for the program he had been enrolled in, personally presented the falsified deposit slip to the defendant and received a receipt for the falsified amount of GH¢ 4050. The area of departure is the plaintiff’s complaint that the fraudulent act was not his at all, but that of a third party he had contracted with to pay his school fees, and that he had been prevented from adequately telling his side of the story when the defendant failed to invite him for an oral examination. It was also the plaintiff’s case that he had brought to the attention of the defendant the efforts he was making with the Police to apprehend the culprit and that in spite of these, the defendant went ahead and dismissed him. The issues before the court were inter alia, whether or not the plaintiff falsified the cash deposit slip; whether or not he was given a fair hearing; whether the payment of the school fees albeit belatedly, ought to have mitigated the punishment. A sub-issue relating to the entitlement of the plaintiff to his claim was introduced by the defendant, and it was: whether or not the plaintiff’s suit was premature, in that he had not exhausted the available remedy of an appeal to the Rector.

 

This last the learned trial judge answered in the negative thus: “What constitutes a proper appeal? The defendant has failed to provide what form such an appeal must take. Although exhibit H is headed LETTER OF PETITION it is copied to the Rector and the tone of exhibit H is an appeal to the Rector ‘to open opportunity into this matter for a full hearing of my case and readdress it accordingly’…I find as a fact that Plaintiff lodged an appeal”. We could not agree with the learned trial judge more. In this, we find no fault with either the reasoning or the conclusion of the learned trial judge.

 

Yet while we agree with the learned trial judge that the plaintiff could maintain the suit, as it was not premature (an appeal having been duly lodged before the Rector), we are unable to agree with the learned trial judge’s findings that supported the judgment in favour of the plaintiff.

 

We reiterate that the defendant’s reaction to the discovery of the fraud was not improper, for the defendant called for an explanation from the plaintiff and that although the meeting scheduled for 6^th December 2012 was aborted, the defendant gave the plaintiff an opportunity to tell his side of the story by requesting from him in writing, his comments on the banking transaction that had produced the falsified cash deposit slip. After the plaintiff gave his explanation, he followed up with a Police Report dated 1st February 2013 which simply recounted the complaint laid by the plaintiff to the Police and the investigations that had commenced. DW1 the Academic Registrar admitted that the plaintiff paid him a visit accompanied by Police officers, and stated that their mission was to plead verbally for the plaintiff and that he advised them to put their plea in writing to the Academic Board.

 

Thus apart from these, at the point that the defendant having received the report of the SAC sat to consider the plaintiff’s case, there was nothing regarding the arrest of the culprit Issifu Razak, his prosecution, conviction and sentencing. This circumstance is contrary to what the learned trial judge held, but is discoverable from a reading of in exhibit H dated June 2013.It seems to us that if the learned trial judge had not mixed up the chronology of events, and had rightly stated that the arrest, conviction and sentence of Issifu Razak came after the dismissal of the plaintiff rather than before, she may have reached a different conclusion.

 

The right of the defendant to discipline its students is without question, as the plaintiff noted in his submission before us. Even so, the respondent has canvassed the fact that the appellant’s failure to tender the statutes it relied on to discipline the plaintiff was a failure of its case. It seems to us however, that apart from a cursory mention of the failure of the defendant to furnish the court with the statutes, the learned trial judge went ahead to determine the matter, assuming the correctness of the secondary evidence given by the defendant’s witness regarding the contents and import of its disciplinary procedures. We do not fault her for this and have no reason to do differently. In any case, the defendant being a creature of statute, the court could take judicial notice of the enabling statute of the defendant which provided that the Academic Board controlled the procedure for disciplining students, see S. 9(2)(b) of the Evidence Act NRCD 323; S. 14(1) of Act 676.

 

Having found no evidence that the plaintiff was denied a fair hearing, the question we pose is whether or not the learned trial judge was right to hold that the payment by the plaintiff of the school fees ought to have mitigated the punishment.

 

Whether or not same ought to have influenced the defendant’s decision was an exercise of discretion.

 

Article 296 of the 1992 Constitution cited by the learned trial judge, in this regard provides that “discretionary power shall be deemed to imply a duty to be fair and candid” and furthermore, that “the exercise of the discretionary power shall not be arbitrary, capricious or biased whether by resentment, prejudice or personal dislike and shall be in accordance with due process of law…”

 

The learned trial judge who quoted the said provision failed to demonstrate that in the face of the payment of school fees, the defendant’s failure to consider that circumstance in its decision to dismiss, was a failure to be “fair and candid” or that it was “arbitrary, capricious or biased whether by resentment, prejudice or personal dislike” and was not “in accordance with due process of law”, thus a wrongful exercise of discretion. We recapitulate that the offence committed against the defendant was two-pronged: falsification of a document with intent to defraud, and actually defrauding the defendant of the sum of GH¢4000 after the issuance of the receipt for the sum of GH¢4050. In our judgment, by reason of these offences, the payment of school fees by the defendant, especially at the time when the falsified deposit slip was the subject of the inquiry in February 2013, was not a sine qua non for the mitigation of sanctions. It was for the defendant to exercise its discretion, and not having justified why the said exercise was wrongful, and the learned trial judge erred when she held it to be so.

 

Should the plaintiff’s explanation that the fraud was that of a third party although he had personally presented the cash deposit slip to the defendant, have exonerated him from culpability?

 

In considering this under the omnibus ground, we do so with regard to the legal arguments that “help advance or facilitate a determination of the factual matters”, see: per Benin JSC in Eric Kwame Amoah v. Owusu Domena (supra).

 

The defendant has submitted, relying on the holding of Francois J (as he then was), in Akortsu v SIC [1972]2 GLR 22, that the plaintiff, a principal, must as a matter of law, be held for the fraud of the said AGDII Tertiary Opportunity. We will not go so far as to hold that to be blanket authority in such circumstances as there is differing opinion on whether a principal may be held liable for the criminal conduct of his agent operating within the scope of his authority, or under delegated duty; (contrast Goddard LJ’s dictum in Barker v Levinson [1950] 2 All ER 825 at 827:“the master is responsible for a criminal act of the servant if the act is done within the general scope of the servant’s employment” with Denning LJ’s contrary view expressed in Navarro v Moregrand Ltd [1951] 2 TLR 674 at 681: ‘if that were correct, it would equate the master’s criminal responsibility with his civil responsibility which would be an innovation against which I would issue a caveat’).Yet in spite of the difference of legal opinion on the subject, one thing is settled, and it is that the principal of an agent engaged in criminal enterprise,“… will (only) be liable if he is a party to the criminal conduct, by personal participation, instruction, …connivance at what the agent did, or standing by while it is committed,” see: The Law of Agency Butterworths 4th Ed. 256.

 

Without a doubt, the plaintiff constituted the said NGO: AGDII Tertiary Opportunity, his agent with authority to pay part of the plaintiff’s school fees to the tune of GH¢4000 to the defendant. The evidence is that the plaintiff personally presented the falsified cash deposit slip, and received a receipt therefor. The plaintiff is literate (he was enrolled in the defendant’s Masters Program). He also described himself as a Director of a microfinance company, a circumstance that should make him au fait with the diligence required in the carrying out of monetary transactions. The responsibility for paying fees was the plaintiff’s and the burden of ensuring that it was duly paid was his. Thus, (going by his story), his assumption of risk in committing the payment of his school fees owed to the defendant to another microfinance outfit, without bothering to read what had actually been done in his name and on his behalf before tendering the purported evidence thereof (which was his story), and taking a receipt in the falsified sum, was his decision to take, and the consequences thereof, his to carry.

 

Thus although a principal is, as aforesaid, generally not liable for crimes committed by an agent, in the instant case, by reason of the major role played by the plaintiff in the fraud perpetrated on the defendant when he personally presented the falsified cash deposit slip and took a receipt in that falsified sum, he will be fixed with the liability for the fraud he alleged was committed by the AGDII Tertiary Opportunity (or AGBII as the case may be), along with the latter.

 

For this reason, having had regard to the entire record of appeal, and having considered the arguments of the parties, we cannot but uphold the contention that the decision of the defendant to dismiss the plaintiff was not unreasonable or unfair. Thus we are satisfied that the judgment which found otherwise was indeed against the weight of the evidence led.

 

Having found that the findings in support of the plaintiff’s claim are not supportable from the evidence, no useful purpose will be served by our making foray into the award of damages, for a setting aside of the finding of unconstitutionality and wrongfulness effectively does away with the award of damages consequent upon it.

 

By reason of the matters aforesaid, we find merit in the appeal and it succeeds in consequence.

 

The appeal is accordingly allowed, and the judgment of the court below is hereby set aside.

 

No order as to costs.

 

SGD

 

MABEL M. AGYEMANG (MRS)

 

(JUSTICE OF THE APPEAL)

 

 

 

SGD

 

V. OFOE, J. A.           I agree                            VICTOR OFOE

 

(JUSTICE OF THE APPEAL)

 

 

 

SGD

 

S. DZAMEFE, J. A.S.            I also agree             SENYO  DZAMEFE

 

(JUSTICE OF THE APEPAL)