KUMASI - A.D 2017
MR. CHRISTOPHER DANSO AND 7 OTHERS - (Plaintiffs/Appellants)
THE ATTORNEY GENERAL & 4 ORS - (Defendants / Respondents)

DATE:  28TH JUNE, 2017
SUIT NO:  H1/39/2016


 The Plaintiffs/Appellants are teachers employed by the Ghana Education Service. They were stationed at Akumfi Ameyaw Senior High Secondary School at Aworowa as at April 2011 when this suit was commenced by them. According to their Amended Statement of Claim, on 24th January 2010, the students of the school embarked on an ‘agitation’ which resulted in destruction of properties. A committee was set up chaired by one Mr. Amanor Kyeremeh, a retired educator which ‘made adverse findings against’ the Appellants in its report on the ‘student agitations’ and its cause. According to their Statement of Claim, though they applied for a copy of the report, the committee failed to give it to them. However, ‘by the work of providence, they happened to get some extracts’ from the said report and it is these extracts which informed them of the said adverse findings. The committee also made recommendations in their report. It is their case that they were completely innocent of the findings and recommendations against them in the Amanor Kyeremeh report.


However, the Appellants were given letters dated 7th February 2011 transferring them to other senior high schools on the strength of the report. The Appellants alleged fraud in the manner of communication of the transfer letters, the content of the alleged ‘adverse findings’, and the procedure for transferring them. They also alleged that they were not given opportunity to appear before the Amanor Kyeremeh committee and as such, the findings and recommendations against them were done in flagrant breach of the rules of natural justice.


It was finally their case that through the findings and recommendations, the Defendants had published defamatory statements about them throughout the country. They said the publication of the recommendations ‘tend to expose them to public ridicule and openly disgrace and humiliate them before the students of of Akumfi Ameyaw Senior High Schools’ and the transfer letters portrayed them as persons given to ‘viciousness, proclivity, tendency, penchant to incite, stimulate students to revolt’. They claimed that they had suffered a great deal of pain, humiliation, expenses as a result of the release/publication of the said report which had won for them a national certificate of shame, dishonor and indignity such that they feel debased among their peers. Their reputations had been greatly injured in the eyes of right thinking men within the community that they live in, and their chances of higher promotions were ‘perpetually doomed because the Defendants had imputed criminality and viciousness to them


They claimed against the Defendants jointly and severally for:


Declaration that the transfer of the Plaintiffs or the purported transfer of the Plaintiffs on the grounds of an alleged involvement in an act bordering on criminal activity and instigation of students agitation is a breach of the natural justice, unreasonable, unfair, unjust, null and void and also breach of the Plaintiffs in alienable rights.


An order or the Honorable Court, setting aside and declaring as null and void, the transfer or the purported transfer of the Plaintiffs on the grounds of same being unjust, nullity, breach or violation of the Teachers Code of Conduct (Rule for Professional Conduct for Teachers in Ghana).


Declaration that, the failure and/or refusal of the Amanor Kyeremeh Committee, to invite the Plaintiffs to appear before the said Committee to present their side of the case and to have the opportunity of confronting other witnesses who appeared before the said Committee in order to have a fair opportunity to present their side of the case has resulted in substantial miscarriage of justice.


An order of the Honourable Court setting aside as null and void, the recommendations of Amanor Kyeremeh Committee which said recommendations has been admitted/accepted by the Ghana Education Service, against the Plaintiffs on the grounds of procedural irregularity, abuse of the natural justice rule, bias, unfairness, etc.


Ten Million Ghana Cedis (One Hundred Billion old Ghana Cedis) as General damages for defamation, inconvenience, etc.


An order of the Honourable Court compelling the Defendants to retract and render an unqualified apology to the Plaintiffs for publishing defamatory words concerning the Plaintiffs.


An order of perpetual injunction.


Further orders.


After listening to the parties and their witnesses, the court dismissed their action. First, the court held that the Amanor Kyeremeh Committee was a fact finding body which had no judicial character and therefore if it had called the Appellants to hear ‘their side’ of whatever information was brought to their attention, or for them to cross examine witnesses who testified about the cause of the ‘agitation’, that call would have been an action in excess of their mandate.


Second, he held that from the terms of reference of the Committee, the Plaintiffs were not the subjects of the committee’s work and therefore the committee had ‘no obligation, legal or otherwise….to call any particular teacher to appear before it.’ It was his evaluation that though the committee captured a recommendation in paragraph 3.15 of its report that the Plaintiffs ‘be reprimanded for their role in generating the staff-management conflict and their unguarded statements which led to the demonstration’, the committee was entitled to make such a recommendation if certain facts were brought to their notice.


Further, he noted that the report was a ‘comprehensive report covering many aspects of the school’s administration, problems and offering solutions to them’. As such, the portion affecting the Appellants could not be set aside as null and void. He declined the first claim to set aside the committee’s report.


Regarding the case of defamation it was his reasoning that ‘the report was an official document whose content the Plaintiffs illegally obtained from some source after their request for copies had been ignored by the Ghana Education Service’. He held that it is the Appellants who fished for it, published same by issuing a writ of summons and making available the portions they deemed offensive and defamatory of themselves to the public. It was his holding that the report is privileged, it was not defamatory, and its publication had been done by the Appellants and not the committee.


He closed his judgment by roundly rebuking the court action as wilful and indisciplined disobedience of lawful order because the transfer was an administrative action of the Ghana Education Service (GES) and the reason for the transfer was immaterial. He also held that there was no cause of action against the 3rd, 4th and 5th Defendants because the 3rd and 4th Defendants had no legal identities and no case had been presented against the 5th Defendant. He held that the action against the three bodies was incompetent and their names should have been struck out as Defendants. He dismissed the action and awarded costs of GH¢3,500 against the Appellants.


Dissatisfied with this judgment, the Appellants appealed on the following grounds:


Grounds of appeal


a. The learned judge erred in law when he dismissed the Plaintiffs/Appellants’ claim.


Particulars of error

Considering the fact that the Plaintiffs/Appellants were able to prove their case as required under the Evidence Act, the learned trial judge ought to have upheld the Plaintiffs claim.

b. The judgment was against the weight of evidence adduced in Court.

c. The learned judge failed to consider the evidence of DW1 which said evidence confirmed the Plaintiffs’ case.

d. The learned judge failed to consider the ingredients which constituted defamation in his judgment.

e. The learned judge was wrong when he held that, because the Plaintiffs are workers of the GES, they cannot institute legal action against same.

f. The learned judge was wrong when he held that because the Plaintiffs’ names were not mentioned as those under investigation, the committee had no reason to invite them.

g. Additional grounds of appeal shall be filed upon the receipt of the Certified True Copy of the judgment.


Before considering the submissions of Appellant counsel in support of this appeal, we must first dismiss the grounds (a), (c) and (d) of appeal as not qualifying for consideration as grounds of appeal.


Rules 8(6) and 8(7)of the Court of Appeal Rules 1997 CI 19 direct that

(6) A ground which is vague or general in terms or which does not disclose a reasonable ground of appeal is not permitted, except the general ground that the judgment is against the weight of the evidence

(7) A ground of appeal or a part of the appeal which is not permitted under sub rule (6) may be struck out by the court of its own motion or on application by the Respondent


The first ground of appeal is vague and discloses no ground of appeal. The particulars of error are also vague and argumentative. The ground of appeal does not clarify which case of the Appellants had been proved and which law the court erred against by failing to consider the case proved. It seemed oblivious of the fact that Appellants presented several cases for resolution to the court – ranging from alleged nullity of the Amanor Kyeremeh Committee report on grounds of violation of the rules of natural justice, nullity of the transfer complained about, defamation of the persons of the Plaintiff, and entitlement to damages and apologies. In these circumstances, a court ought to strike out the ground (a) of appeal under the direction of Rule 8(6) of CI 19 and we so do.


The ground (c) of appeal is like unto the first. It does not clarify which part of the evidence of DW1 confirmed which part of the Plaintiffs’ case to merit being a ground of appeal against the judgment. It is struck out.


Now it is not clear what purpose the Appellant soughts to achieve by complaining about the alleged failure of the judge to consider the ingredients which constituted defamation in his judgment in the ground (d) of the appeal. Because for the complaints against any part of a judgment to ground an appeal, it must show whether a particular part of the judge’s work constituted an error of law, or whether a finding of fact was against the weight of evidence. In its present form, the ground (d) of appeal merely narrates a position and does not point to a particular error of law and the alleged effect of that error. It is also struck out. There is ample case law supporting the orders we have just made.


In Zabrama v Segbedzi [1991] 2 GLR 221, the Court of Appeal applied inter alia the rule against grounds of appeal which are vague or in general terms. Ground 2 of the Appellant’s grounds of appeal stated that “the trial judge misdirected himself and gave an erroneous decision” On page 226, the court per Kpegah J.A (as he was then) described this ground of appeal as objectionable and inadmissible. The court stated that grounds of appeal must clearly and concisely indicate in what manner the trial judge misdirected himself on the law or on the facts to enable the Respondent understand the ground the decision obtained is being impugned.


In Nunoofio v Farmers Services Co. Ltd [2007-2008] 2 SCGLR 926, the Plaintiff/Appellant obtained judgment against the Defendant/Respondent for a declaration that the termination of his employment was unlawful. On appeal, the Court of Appeal overturned the trial High Court’s decision that the termination had been unlawful. The Plaintiff appealed to the Supreme Court on the ground that “the Court of Appeal was wrong in holding that the termination of the Plaintiff’s contract was not wrongful”. The Supreme Court speaking through Georgina Wood JSC (as she was then) on page 931 held that the ground of appeal as formulated offended Rule 6(5) of Supreme Court Rules 1996 CI 16 ought to be struck down for vagueness or generality because no particulars of the errors of law had been provided. The court however exercised its discretion in this case not to strike out the ground because that was the Appellant’s only ground of appeal and striking it out would have terminated the entire appeal.


In the present case, we choose to strike out grounds (a), (c) and (d). We do this especially because ground (b) suffices to cover the submissions raised in support of grounds (a) and (c) of the appeal. Ground (b) of the appeal is the proper articulation against any judgment where the Appellant submit that the conclusion of the judgment is not supported by the evidence available to the court.


Ground (b) - The judgment was against the weight of evidence adduced in Court.


In his written submissions, Appellant counsel urged that the evidence before the court supported the finding that the Appellants were not invited to appear before the Amanor Kyeremeh Committee which had made adverse findings against them and yet the court dismissed the Appellants case that their right to be heard had been violated by the committee. Counsel argued that the holding that that the Appellants were not the subject matter of enquiry and the committee was therefore not obliged to listen to them, went counter to the position of our jurisprudence as stated in Awuni v WAEC 2003 -2004 SCGLR (full citation not supplied by Appellant counsel).


He said that the dictum in this case pointed out that ‘to act fairly and reasonably…imports a duty to observe the common law maxim of audi alteram and other principles of natural justice which is very much part of our justice....jurisprudence and implicit in Article 23 of the 1992 Constitution’. He ended these arguments by presenting that there was no testimony as to who appeared before the committee and mentioned the Appellant’s names. And this made wrong the decision of the trial judge dismissing the Appellant’s case.


In response, counsel for Respondent also submitted that the evidence before the court through DW1, Mr. Amanor Kyeremeh who chaired the committee, was that the Appellants, as staff members, met the committee as a group and refused to appear individually before the committee. There was therefore no violation of the rules of natural justice because it was the Appellants who had refused to appear individually before the committee. He submitted that the case of Awuni (also referred to without citation) was distinguishable because in the Awuni case, the Plaintiffs therein had not been given a hearing, and there was no evidence led to establish that the WAEC had actually invited the Plaintiffs and they had refused or failed to attend the hearing, as occurred in the case on hand.


The second set of arguments against the conclusions of the trial judge on the evidence before it were in relation to the case of defamation, and were captured under the ground ( c) which has been struck out, but can easily be considered underground (b) and we hereby do so. Appellant counsel complained that the evidence of DW1, Mr. Amanor Kyeremeh, confirmed the case of the Appellants that they had been defamed by the finding that they had instigated the agitations in the report and transferred as a result of that alleged instigation.


He pointed to the testimony of DW1 that he ‘was not comfortable’ with the first set of transfer letters (tendered as exhibit E series) because he thought the content of the second paragraph ‘could disturb the future’ of the Appellants by ‘hampering their promotions or other opportunities’. As such, he DW1 wanted to ‘correct the liability he inherited’ in that letter and that is why he issued new transfer letters tendered as exhibits F series. Appellant counsel submitted that with this testimony on the effect of the transfer letters by the Respondents’ own witness, the court ought to have held that the Appellants were defamed as claimed. He said ‘the learned judge failed to consider the DW1’s expression ‘liability’’. Appellant counsel went on to cite various cases which were all wrongly cited and so will not be repeated here. He cited also Oworsika 11 v Nii Koi Okai Amoatia IV 2005-2006 SCGLR 637, properly reported as In Re Asere Stool; Nikoi Olai Amontia IV (Substituted by Tafo Amon II) v Akotia Oworsika III (Substituted by) Laryea Ayiku III on the effect of corroboration of one’s case by the opponent. He set out the statement of Dr. Twum JSC in Oworsika 11 v Nii Koi Okai Amoatia IV (properly, In Re Asere Stool) on page 651 that:


‘...this type of proof is salutary rule and expedience, where your adversary has admitted a fact advantageous to your cause what better evidence do you need to establish a fact than relying on his own admission


The response of Respondent counsel to these submissions was short and did not provide any light on the legal import of his position. He said that DW1’s testimony about the ‘liability’ in the transfer letter ought not to be taken out of context, and that he had expressed his opinion that as an individual, he did not like the contents of the exhibit ‘E’ series. And against this background, he had withdrawn the exhibit ‘E’ series and written exhibit ‘F’ series.


We will first deal with the issue whether the judgement was against the weight of evidence when it came to the Appellant’s case that they had been defamed and entitled to damages for defamation and an unqualified apology for such defamation.


The Appellants identified the alleged defamatory content in the Amanor Kyeremeh report in paragraph 13 of the Statement of Claim. The words were ‘The committee noted with interest the role played by the Plaintiffs (Messrs Tom Bawo JK, Owusu Brempong Gordon, Aku-Kna Robert, Kupour Hilary, Agyenim Boateng Forster, Akanyaa George, Opoku Agyei S, and Danso Robert) whose unguarded

statements and uncompromising stand contributed in no small measure to the aggression of the students’.


In their recommendation 3.15 on Staff Involvement, the Report also said:


“The committee recommends that the following teachers should be reprimanded for their role in generating the staff-management conflict and their unguarded statements which led to the demonstration. The teachers are Messrs Tom Bawo JK, Owusu Brempong Gordon, Aku-Kna Robert, Kupour Hilary, Agyenim Boateng Forster, Akanyaa George, Opoku Agyei S, and Danso Robert”.


We must say that we agree with the judgment of the trial judge on the issue of defamation. It is trite law that for the tort of defamation to be made out, certain major factors must identified. Winfield and Jolowicz on Tort (13th Edition) Sweet and Maxwell, 1989 set out these factors in their definition found on page 294 as follows : “Defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. (underlining mine)


It is the combination of the presence of these factors that amount to defamation, and not any statement that is not flattering. The jurisprudence around these factors expand what these factors mean in different situations.


In Professor Kofi Kumado’s Introduction to the Law of Torts in Ghana, Black Mask 2009 the learned author sets out a four pronged test which publications ought to pass before being held to be capable of a defamatory meaning.


The first test is the presence of a publication without justification or lawful excuse, calculated to injure the reputation of another by exposing him to hatred, ridicule or contempt (citing Parmiter v Couplands (1840) 6 M. & W at 108). It is this very first test which answers the difficulty with a finding of defamation in the suit before us.


The mere creation of a report – oral or written – does not constitute publication. In Winfield and Jolowicz on Torts, the learned authors state on page 332 that there are occasions on which the freedom of communication without fear of an action for defamation is more important than the protection of a person’s reputation. These occasions are said to be privileged. They go on to say “absolute privilege covers cases in which complete freedom of communication is regarded as of such paramount importance that actions for defamation cannot be entertained at all: a person defamed on such an occasion has no legal redress, however outrageous the untrue statement which has been made about him and however malicious the motive of the maker of it. Qualified privilege, on the other hand, though it also protects the maker of an untrue defamatory statement, does so only if the maker of the statement acted honestly and without malice. If the Plaintiff can prove express malice the privilege is displaced and he may recover damages, but it is for him to prove malice, once the privilege has been made out, not for the Defendant to disprove it.”


Thus where a publication is done as in the present case, as a result of official duty and in the course of work, there is a presumption of privilege to begin with.


The record is clear that in the present case, the Amanor Kyeremeh report was commissioned by the Ghana Education Service and was not published beyond the walls of those who commissioned it and those who wrote it. In this regard, it was a privileged document, compelled by official duty. Indeed, the Appellants pleaded and also testified convincingly that they struggled and could not get a copy of the report. They had to use subterfuge to get the one page they used to support their case.


The terms of reference of the Committee inter alia, required it to investigate the causes of the demonstration, find out the linkage between the staff and student, and identify the leaders among the staff and students who championed the demonstration. The full report dated 24th May 2010 was tendered as Exhibit 1 and run from pages 238 to 277 of the Record of Appeal. Out of this 39 page report, only four lines (two of which covered their names) on one page stated the findings regarding the Appellants. This is page 9 found in exhibit A on pages 213 to 216. Another 3 lines at the bottom of page 14 stated the recommendations for the findings. And the words of the Report were consistent and within a very small ambit – that it had come to the notice of the Committee that the Appellants had made ‘unguarded statements’ and had an ‘uncompromising stand’ with regard to the wearing of red arm bands prior to the conflict, and this had helped to trigger the agitations. This shows the absence of malice through any excessive reference to the Appellants in the report.


A reading of the report shows that the Committee found a whole range of causes for the disturbances. There were seven underlying causes and four immediate causes. The immediate causes included the distribution of staff incentive packages, a decision of the Board of Governors to stop a General Science program, teachers’ wearing red bands and refusing to teach in solidarity with the science teachers whose program had been scrapped, and jubilation at Ghana winning football which turned violent.


It is within the context of findings on staff involvement in the demonstration, that committee noted that the refusal to teach for one week and continuous wearing of red bands triggered off the demonstration, and the Committee noted with interest the role of the Appellants as teachers who made ‘unguarded statements’ and had an ‘uncompromising stand’ which ‘contributed in no small measure to the aggression of the students’. So now was it true that teachers wore red bands and refused to teach prior to the disturbance? This was the pleading of the Defendant Respondents in paragraph 28 of their Amended Statement of Defence

28. Defendants say that events leading to the uprising were as such that some members of staff were wearing red bands demanding the removal of the Headmaster...


The uncontested testimony of Mr. Amanor Kyeremeh found on pages 148 and 149 of the ROA touching the different causes of the disturbance was also that

Prior to November 2009, the school enjoyed considerable peace and harmony. But in early November 2009, the staff complained about the ratio used by management to share staff incentive package for staff……On the re-opening of the school about 8th January, 2010, the Plaintiffs herein and other teachers started wearing red bands and refusing to teach the students. The acting Principal Director of Education, Mr. Owiredu Kusi met the staff and requested them to go back to the classroom where their concerns were addressed. We sat for three weeks and we took evidence from witnesses…’


Since the Appellants could not displace the testimony and pleading that they did indeed wear red arm bands, which the committee found to have affected the aggression level of the students, then the identifying of these actions was a statement of truth, relevant to the exercise being carried out, and was properly set out as part of the report. The report was a commissioned exercise required to bring out the truth and it could not be described as a publication without justification or lawful excuse. The comment could not have been done simply to injure the reputation of the Appellants, but as a necessary part of the committee’s investigation. The makers of the report were covered by privilege as found by the trial judge. It is necessary to point that apart from several vituperative words against the report including expressions such as ‘porous’, the Appellants could not prove any express malice against them on the part of the authors of the report.


Amoako v. Takoradi Timbers Limited [1982-83] GLR 69, adds to the authorities for the proposition of law that a communication between two persons defamatory of another is not actionable if the person making the communication has an interest in the matter so communicated or has either a legal, moral or social duty to make the communication and that the person receiving it has a corresponding interest or duty to receive it. Such a communication is deemed to be privileged and therefore in order to succeed in a claim under such circumstances, the Plaintiff has to prove that the Defendant was actuated by malice.


In Mosi v. Mobil Oil Ghana Ltd [1964] GLR 23 it was held that the terms of libel which are evidence of malice are such as are beyond the necessities of the occasion, and utterly beyond and disproportionate to the facts.


Another aspect of the tort of defamation where privilege is established, is that the publication should have been wider than necessary. Thus, in Sidi v. Issah [1991] 1 GLR 599 the Defendant wrote a letter to the Secretary of Roads and Highways with complaints about the Plaintiff’s conduct which was also copied to the Plaintiff. This letter was allegedly intercepted and read by some office holders, who the Plaintiff called as witnesses in proof of an alleged defamation. The trial court held that defamation had occurred because the words in the document were defamatory in meaning, they referred to the Plaintiff and that because persons other than the Plaintiff had read the letter, it had been published to those persons. However, the Court of Appeal at page 601 of the report stated that it was necessary to consider if the defamatory matter was published to the witnesses. It was the Plaintiff who had the onus of proving publication by the Defendant to the witnesses because a Defendant cannot be held responsible for a publication which is the wrongful act of a third person. At page 603 of the report, the court held that in order to prove that there had been a publication to the witnesses, the Plaintiff had to establish through evidence that the Defendant knew the letters addressed to the Plaintiff would be intercepted, opened and read by the witnesses, that the witnesses had lawful authority to intercept, open and read letters addressed to the Plaintiff; and that it was in the usual course of business for the witnesses to intercept and read letters addressed to the Plaintiff. In the absence of this evidence, it was held that publication of the defamatory letter had not been proven.


Applying these principles to the instant case, the protection this report was given from falling into the hands of persons outside those who commissioned it, is striking. The learned trial judge clarified this issue by saying that if there was any publication of the Amanor Kyeremeh report, it was done by the Appellants themselves who struggled to get one page, and brought it to court. We agree with the learned trial judge in dismissing the case of defamation against the report.


How about the alleged defamation in the letters of transfer? Although they mentioned the letters of transfer under the Particulars of Defamatory Statements in Paragraph 35 of their Amended Statement of Claim, Appellants failed in their pleadings to point to the alleged defamatory statements in these letters of transfer. It was in the testimony of the 2nd Plaintiff/Appellant, who testified for all the Appellants, that the alleged defamatory words were presented.


In his evidence found from pages 116 to 134 of the ROA, the 2nd Plaintiff/Appellant who testified for the Appellants only seemed to home in on a statement he disagreed with within these letters in his testimony recorded on page 119. He said ‘these letters of transfers contained a most dispersing (sic) statement that we were being transferred for our ‘serious involvement in the disturbances’ this occurred at the Akumfi Ameyaw Senior High Technical School. This is because we were not involved in those riots. The compression (sic) that we had to vacate the campus to ensure that peace reigned on the campus and not true (sic) we were not instigation (sic) or inciting, any students to riots neither did we exhibit any unprofessional conduct as such’’.


It is not clear what ‘dispersing statement’ means. But we will focus on what he quoted from the letter. These were the words ‘This has become necessary because of your serious involvement in the disturbances in the school last year’ written in explanation of why the Appellants were being transferred.


Just like the learned trial judge, we do not find these words defamatory. Several factors lead us to say so. First, as the learned trial judge found, transfers are the prerogative of school managers, such as the Regional Director of Ghana Education Service who authored the letters. Second, as an official executing an official duty, the author of the letter had the prerogative of setting out the reason for the transfer. Thus, if it was his opinion that the transfers were necessary as a result of the alleged ‘serious involvement of the teachers’, it was his prerogative to state so. In this situation, if the Appellants were unhappy with the reasons for the transfer, it was their duty in law to exhaust internal administrative mechanism within the Ghana Education Service regarding such events before seeking interference by the courts in what was an administrative situation. This is especially so when the transfer letters were not sent to any person but persons in leadership within the Ghana Education Service.


Though Appellants pleaded, and their representative testified that the distribution was wider than was warranted, no evidence was led to establish that this distribution was unlawful. He said on page 119 of the record

‘…Professionally the mode of transfer was irregular. Copies of transfer letters are not given to the Ghana Education Service Council or all headmasters across the country through the Heads of Assisted Secondary Schools (CHASS). They are not supposed to be served on all headmasters in the region through CHASS. Copies should properly be sent to the district that one is transferred, to the school to which one is transferred and to the District from which one is transferred and the school


The failure to lead corroborative evidence in support of the proposition that such persons were not entitled to notice of transfers defeats the legal condition for defamation being the publication of defamatory statements outside of a privileged circle. In any event, it is important that prior to a statement being found to be defamatory – if it is a statement that presents the one on the receiving end in a negative light, the element of malice should first be established. This was the reason why the Appellants had a duty to go through whatever administrative mechanisms were available to protest this transfer, rather than running to court in order to stultify the administrative management of an important institution such as a school.


Further, it is Mr Amanor Kyeremeh himself, the person on whose evidence the Appellants were relying as proof of the alleged defamatory effect of the transfer letters, who had testified that prior to the riots, the Appellants were wearing red arm bands around the school and this was part of the causes of the disturbance. We dismiss the submission that the judgment dismissing the claims for defamation through the transfer letters was against the weight of evidence.



The next complaint of the Appellants was that the Report and letters of transfer were issued in breach of the rules of natural justice and so the Report and transfers should be declared null and void. The evidence before the court from the Report was that the Committee met a whole range of people, and some of them were represented as groups. Page 2 of the report found on page 241 of the ROA sets out nine groups that were interviewed through representatives. The first of these groups was the Staff of the school.


Interestingly, the uncontroverted testimony of Mr. Amanor Kyeremeh, was that the 2nd Appellant was the person who appeared before the Committee as the representative of the staff. He is also the same person who testified for all the Appellants in court. Appendix 11 to the report is a position paper from the Staff to the Committee with the names of the authors blanked out. This shows that the Committee heard the staff extensively – orally and in documentary form – before arriving at their findings and recommendations on staff involvement in the disturbances.


In Awuku-Sao v. Ghana Supply Co. Ltd [2009] SCGLR 710, the Appellant was dismissed on the basis of adverse findings made against him in an audit report. He contended that the audit exercise breached the audi alteram partem rule because no questions or explanations had been sought from him in the conduct of the audit. The Respondents however denied this claim, arguing that the Appellant had been furnished with a draft audit report which he made comments on, and that these were incorporated into a final report, based on which the decision to dismiss him was taken. The court held that the comments made by the Appellant on the draft forensic report amounted to a hearing and that the Appellant had been given an opportunity to be heard through the process of “comments by management.


We find that the ample evidence before the court belies the position that the Appellants, as staff, were not heard before the finding on staff involvement in the disturbances was set down. And it is to be noted that it is within the context of staff involvement that the report mentioned their individual contributions to the agitation. We agree with the learned trial judge that in view of the fact that the Appellants were not singled out for investigation, a duty in law did not lie on the committee to interview them as individuals.


We also agree with the Appellants that the case of Awuni v. WAEC [2003-2004] 471, is particularly instructive in resolving the issue of the duty that administrative bodies have in listening to parties to whom punitive measures are dealt out to after a hearing.


In addition to what the Appellants’ counsel quoted and which is set out earlier, the Supreme Court said in its holding 2 on page 477 that: “ …the scope of article 23 is such that, there is no distinction made between acts done in exercise of ordinary administrative functions and quasi-judicial administrative functions. Where a body or officer has an administrative function to perform, the activity must be conducted with, and reflect the qualities of fairness, reasonableness and legal compliance…. At the very least however, it includes probity, transparency, objectivity, opportunity to be heard, legal competence and absence of bias, caprice or ill-will. In particular, where, as in this case, the likely outcome of an administrative activity is of a penal nature, no matter how strong the suspicion of the commission of the offence, it is imperative that all affected persons be given reasonable notice of the allegation against them and reasonable opportunity to be heard, if the objective of article 23 is to be achieved.”(emphasis mine)


Where we depart from the Appellants is the proper evaluation that in the current case, the Terms of Reference found on page 240 did not mandate the Committee to make any recommendations of any form – especially recommendations of a penal nature. The key words in the Terms of Reference were ‘investigate, find out, identify, determine, interview and submit a preliminary report.’ Thus, their recommendations of reprimand carried no legal weight. The administrative authority that could execute authority of a penal nature based on their findings was the one required to hear the Appellants as distinct individuals before penalizing them for whatever acts they were supposed to have done that breached rules. And this is why it was imperative that the Appellants responded to their letters of transfer with whatever legal edicts guided the administrative duties of transfer on the grounds that their transfer letter expressed, instead of running to court citing their Code of Conduct and failing or refusing to tender such Code of Conduct. We believe that our reasoning above resolves these claims of the Appellants on alleged violations of the rules of natural justice as well as ground (f) of the appeal. They are without merit.


But it is also important to add that the evidence before this court is that in August 2011, new letters of transfer were issued, and the first set of letters lost their legal validity. Black’s Law Dictionary (6th Edition), defines validity as “legal sufficiency, in contradistinction to mere regularity. ““ having legal strength or force, executed with proper formalities, incapable of being rightfully overthrown or set aside... founded on truth of fact; capable of being justified; supported, or defended; not weak or defective.... of binding force; legally sufficient or efficacious; authorized by law. Good or sufficient in point of law; efficacious; executed with the proper formalities; incapable of being overthrown or set aside; sustainable and effective in law, as distinguished from that which exists or took place in fact or appearance, but has not the requisites to enable it to be recognised and enforced by law. “


Since the transfer letters being complained against lost legal validity, the claims of the Appellants seeking orders to declare them null and void were rendered otiose and moot as far back as August 2011. We hold that the judgment was not against the weight of evidence when it dismissed the claims (a) and (b) of the Appellants.


The next ground of appeal is (e) which complained that the learned judge was wrong when he held that, because the Plaintiffs are workers of the GES, they cannot institute legal action against same. We fail to see the point of this ground of appeal because this was a comment of the court and did not at all feed into the judgment or ratio of the case. It is dismissed.


Before we close with this judgment, we must agree with the learned trial judge on his evaluation regarding what seems to be confusion in the identities of the actors in the drama before the court. As he rightly pointed out, the Amanor Kyeremeh committee and school Board of Governors/directors have no legal personality and the names ought not to remain on this record as parties. It is only persons with legal personalities who may be sued in a court, and the fact that a group works as a definable body does not give them legal personality and the names of the alleged 3rd, and 5th bodies as Defendants and now Respondents are struck out.


Legal personality is created by statute. Thus if the school also has no legal personality backed by statute, its name ought also to be removed from this suit. In Bilson v. Apaloo [1981] GLR 24, the Court had to consider the issue of the legal personality of the Court of Appeal. Kpegah J (as he then was) applied this principle to hold that since neither the 1979 Constitution or any other law conferred the status of legal personality on the Court of Appeal such as right of action, capacity to sue or be sued, power to hold property or ability to enter into contractual relations, it had merely been personified but lacked legal personality. At page 48 he quoted the work of the learned author Salmond on Jurisprudence where it espouses the difference between personification and a legal person. Legal personality involves personification but the converse is not always true because legal personality is not reached until the law recognizes over and above the associated individual members, a fictitious being which represents them but is not identical with them.


Personifying a group that has no legal personality and suing it creates unnecessary logistical issues in the administration of justice such as the creation of records for these non-existent personalities and serving representatives even though a judgment cannot be executed for or against them. Courts have to take steps to stop such inefficiencies. The Registrar has to note this order. The appeal is dismissed with costs of GH¢3,000 against each Appellant. We believe that the time has come for the Respondents to be properly compensated for those unnecessary violations of disciplined and orderly conduct of affairs in schools.



Gertrude Torkornoo (Mrs.)

(Justice of Appeal)



Ayebi  I Agree            E. K. Ayebi

(Justice of Appeal)



Domakyaareh            I Also Agree   A. M. Domakyaareh (Mrs.)

(Justice of Appeal)