JOYCE BAMFORD-ADDO, JSC: This is an appeal against the judgment of the Court of Appeal dated 26th November 1998 reversing a judgment of the Accra High Court dated 28th May 1997. Dissatisfied with the said judgment of the Appeal Court, Appellant filed another appeal to the Supreme Court. The grounds of appeal are:
"a) The judgment was against the weight of evidence adduced and against natural justice
b) The cost awarded was excessive.
c) Other grounds will be filed when the Record of Appeal is ready"
The facts of the case are as follows:
The appellant herein was plaintiff in the case before the High Court. The defendant was the Commercial Bank, employer of the plaintiff. The plaintiff sued the Defendant and won his case at the High Court, but the Appeal Court reversed that decision and he has now appealed to this court. He would be hereinafter be referred to as plaintiff and the bank as defendants. The plaintiff's claim against the defendant was for:
A declaration that his purported dismissal with loss of benefits from his employment with the defendant by the Board of the Defendant which was communicated to him by the General Manager on or about the 4th November, 1994 was ultra vires, null and void and ought to be set aside.
In his Statement of Claim (p.2 of the Record) plaintiff pleaded that when he was appointed by the defendant it was a condition in the defendant's offer of appointment that, on acceptance, the plaintiff would be deemed to have agreed that his employment would be governed by the Staff Service rules (Exhibit B at 77-82 of the Record). He further pleaded that:
On the 4th of November 1994, the defendant purported to summarily dismiss him the plaintiff from the said employment with consequential loss of earnings allegedly for unspecified and unproven acts of misconduct by a written Memorandum signed by the General Manager and Deputy Head of Human Resources and Development on behalf of the Board of the defendant.
Particulars of Wrongful Dismissal were that:
(1) The plaintiff was condemned by being summarily dismissed by the Board of the Defendant Bank, and in blatant violation of its own staff rules and in contravention of the rules of natural justice. That the plaintiff was not allowed to hear the evidence brought against him let alone to rebut the case against him.
(2) That the body which purported to dismiss the plaintiff was under a duty to act judiciously and fairly, yet it dismissed the plaintiff administratively.
(3) That by the provisions of the Staff rules 4.1, he should have been tried for the alleged misconduct by an unbiased disciplinary committee in the exercise of its judicial functions after he had been given notice of the charges of misconduct and the right to be heard in answer to the charges.
(4) Rule 4.2 states that after the hearing which did not take place the Disciplinary Committee should have drafted its recommendations to the Executive Committee in a logical judgment-like fashion by giving cogent reasons for its conclusions.
(5) That under Rule 4.3, the Executive Committee had power to confirm or vary the finding of the Disciplinary Committee. It also had power to give the plaintiff a hearing.
(6) That by rule 4.4, the plaintiff had a right of appeal to the Board of the Defendant Company.
(7) By Rule 7.3, the Board had jurisdiction to exercise Appellate jurisdiction. It is therefore contended that the Board did not have original jurisdiction to dismiss the plaintiff. Even if it did, which is denied, the decision of the Board was arrived at in contravention of the rules of natural justice and hence ought to be set aside. For even if the Board had original jurisdiction to discipline the plaintiff, the Board was under a duty to act judicially, which it failed to act as such. The defendant was unable to prove any act of misconduct.
The defendant denied each and every allegation of fact contained in the plaintiff's Statement of Claim.
The case was tried at the High Court Accra after which the Trial Judge gave judgment for the plaintiff on 28th May 1997. This judgment of the High Court was reversed on appeal by the Court of Appeal and dissatisfied with this the plaintiff/appellant herein has appealed to the Supreme Court on the following two grounds of appeal.
1. That the judgment was against the weight of evidence adduced and
2. That the disciplinary authorities of the defendant bank failed to observe the rules of natural justice
The rule of natural justice as defined in Osborns Concise Law Dictionary is as follows:
"The courts in the interest of fairness impose certain obligations upon those with power to take decisions affecting other people. These obligation arise from the rules of natural justice which although "sadly lacking in precision have generally been subsumed under two heads, the audi alteram partem" rule and the "nemo judex in sua" rule. By virtue of these rules decision makers must act fairly, in good faith and without bias and must afford each party the opportunity to adequately state his case."
Natural justice is actually fairplay in action and is applicable to the ordinary courts, adjudicating tribunals and administrative bodies which have the power to adjudicate in disciplinary cases, and which make decisions affecting rights of other persons. In other words, the fundamental rules of natural justice include trial and strict adherence to the rules of procedure applicable to the proceedings.
In Spackman v. Plumstead District Board of Works (1885) 10 App. Case P.299 at 240 Lord Selbournce said:
"There would be no decision within the meaning of statute if there were anything of that sort done contrary to the essence of justice."
It has long been held in many cases that a decision which offends against the principle of natural justice is outside the jurisdiction of the decision-making authority see also AG v. Ryan (1980) AC 718. The requirements that the rules of natural justice be applied by adjudicating authorities even where it is not stated in any law should be implied by those authorities. Lord Russel in Fairmount Investments Ltd. v. Sec. Of State for the Environment (1976) 1 W.L.R. 1255 at 1263 said
''...... it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that parliament does by the Act require in the particular procedures, compliance with those principles."
As stated also in Wiseman v. Bornemen (1971) AC 297 per Byles J.
"It seems to me that the board are wrong whether they acted judicially or ministerial, I conceive they acted judicially because they had to determine the offence, and they had to apportion punishment as well as the remedy. That being as a long cause of decisions beginning with Dr. Bentey's case and ending with some very recent cases establish that although there are no positive words in a statue requiring that the party shall be heard yet the justice of the Common Law will supply the omission of the legislature"
Therefore all Judicial administration decisions made in breach of the audi alteram Partem rule would be null and void. The application of the rules of natural justice is so fundamental to fair procedure and even includes the rule against bias since if only one party in a dispute is heard, the other would be seriously biased and so the final decision would be useless, that other party would have been unjustly condemned without hearing his side of the case. In such a case it cannot be said that there had been fair administration of justice when in fact in such a case there would have been no justice at all. However it is not necessary that the procedure to be followed in a hearing by administrative bodies and tribunals should be based on that of a court proceedings, the hearing need not always be an oral hearing, provided the rules of procedure which bind the administrative authority does not require "personal hearing". Where personal hearing is required as in Rule 4:3 of the Bank rules stated above, the accused official must be heard personally. Further the general notion of a fair hearing extends to the right of a person accused to have notice of the actual charge against him i.e. by serving him with charges and by giving him the opportunity to present his defence, based on evidence provided in support of the charge against him.
As said by Lord Denning of administrative bodies in the case of Abbot v. Sullivan (1952) 1 KB 189.
"These bodies, however, which exercise a monopoly in the important sphere of human activity with the power of depriving a man of his lively hood must act in accordance with the elementary rules of justice. They must not condemn a man without giving him an opportunity to be heard in his own defence and any agreement or practices to the contrary would be invalid"
In this case the administrative body trying the plaintiff, who suffered the highest and toughest sanction of dismissal, should in the cause of fair trial have been served with proper disciplinary charges and given adequate notice of the date of hearing as well as be given the opportunity to be heard. The mere fact that the rules of the Bank did not mention this does not relieve defendant of the duty to comply with the rules of natural justice and fair trial. Just as in a civil proceeding proper service of notice on a defendant is a condition precedent to a fair trial so also in this case a proper notice to plaintiff is a sine qua non to a fair hearing of the case against him. If this is neglected to be done a final decision would be declared a nullity.
See Tabiri v. Appiah (1987-88) 2 GLR p. 189 C.A..
In that case Plaintiff's failed to serve notice on the Defendant or his counsel.
The hearing of the case proceeded in their absence.
Held "The decision was null and void"
Also in criminal cases a trial should take place normally in the presence of the accused with some few exceptions.
See the constitution 1992 provides in Article 19(1) as follows
"A person charged with a criminal offence shall be given a fair hearing within reasonable time by the court."
The requirements of a fair trial are set out in Article 19. In Article 19(3)
"The trial of a person charged with a criminal offence shall take place in his presence unless
(a) He refuse to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial: or
(b) He conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the court orders him to be removed for the trial to proceed in his absence"
Article 19(3), especially deals with the duties of adjudicating authorities and provides as follows:
"Article 19(3) An adjudicating authority for the determination of the existence or extent of a civil right or obligation shall, subject to the provisions of this Constitution be established by law and shall be independent and impartial and where proceedings for determination are instituted by a person before such an adjudicating authority, the case shall be given an adjudicating fair hearing within a reasonable time"
As can be seen from Article 19(1) and (3) all courts and adjudicating authorities, are required to give a fair hearing, this requires that notice of proceedings be given to the person affected by any decision of the adjudicating authority and that he be given the opportunity to defend himself. Furthermore, Article 23 says that administrative bodies and officials shall act fairly and acting fairly implies the application of the rules of natural justice which have been elevated to constitutional rights and are binding on all adjudicating and administrative bodies as well as courts and tribunals. According to Article 23:
"Administrative bodies and administrative officials shall act fairly 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."
Consequently the Defendant Bank which took disciplinary action against the Plaintiff through procedures provided by the Banks Disciplinary procedure rules should have followed the said procedure in those rules and also bound apply the rules of natural justice.
In the case of L'iar Liquide Ghana Ltd. v. Amin and others (191) GLR p. 460 it was held by the Court of Appeal unanimously that:
"Whenever people were given power by law to consider facts and to arrive at conclusions affecting the fate of human beings, they were performing a quasi-judicial function and if the body violated the rules of natural justice the courts had power to declare the procedure invalid, as well as the conclusions there from. In the present case the administrative inquiry violated the two cardinal principles of natural justice namely a man must not be judged in his own case. Since the evidence showed that the respondents were threatened with incarceration if they did not give answers the investigators expected to hear, and they were also not given the chance to confront their accusers, nobody, given such a trial could seriously be said to have been heard. And since the members of the committee of inquiry included the same people who arrested the plaintiffs and sent them to the Police Station members who were very much interested in the subject, they were investigating, they were in the position of the accusers being made judges in their own case, consequently both the inquiry and the dismissal of the respondents were unlawful. R v. Sussex Justices; Ex parte McCarthy (1924) 1 KB 256 and dictum of Scott LJ in Cooper v. Wilson (1937) 2KB, 309 at 344 CA applied."
Since the Disciplinary authorities of the defendant bank failed to apply the rules of natural justice there was no fair trial, and this is fatal to their decision to dismiss the plaintiff with loss of benefits.
The appellant complaints that the rules of natural justice wave breached by the defendants' disciplinary authority, in that Ghana Commercial Bank Ltd. Staff Service Rules effective 16th September 1994 "Exhibit B" were not complied with by defendant, which also failed to apply the rules of natural justice in the disciplinary proceed taken against him resulting in his dismissal from the bank. Considering the facts of this case this is a legitimate complaint. The facts are that plaintiff received two queries from the Inspector/Audit Division of the bank on 25th March 1994 about the plaintiff's signature on Draft No. 177036 dated 17-7-92 for authorising the payment of £15,000.00 and also a cable authorising payment of US$13,559.60 on behalf of White Chapel in "Exhibit E" and in "Exhibit G" and was asked to give reasons why internal entries were not passed to the debit of customer's account or show the vouchers passed to give effect to the payment made on behalf of customers. Plaintiff replied to these queries in "Exhibits F and H" but was afterwards immediately suspended by letter from the Human Res. and Dev. Division. The letter was signed by the General Manager and the Deputy head of the said Division on 31st March 1994 see "Exhibit J". On 7th April 1994 the plaintiff and other officials were told by the Managing Director that they were being taken to BNI for interrogation in respect of alleged fraudulent transfers. The plaintiff was accordingly interrogated by the BNI. The findings of BNI were embodied in a 25-page report, which contained a detailed account of the investigation carried out in "Exhibit K". This report incidentally exonerated the plaintiff at p.22 of the report as follows:
"Paul Kofi Aboagye cannot also been held liable for acting his good faith and performing a duty within his competence."
After receiving the BNI report the Disciplinary Committee of the Bank initiated disciplinary proceedings under Rule 4:1 of the said Staff Service Rules in Exhibit B. Then the Disciplinary Committee without serving any charges or giving notice or affording a hearing to plaintiff, sent its recommendation to the Executive Committee see "Exhibit M" which says of the plaintiff:
"Messrs P. K. Aboagye and 3 others
The above-named four officers counter-signed some drafts/telex messages without satisfying themselves about the genuineness of the transactions. The committee noted that the drafts and telex messages were only counter-signed by the four and did not originate them. Some of the funds remitted are still outstanding."
The report continued:—
"MISCONDUCT
For being negligent and failing to take necessary precautions to protect the interest of the bank, the committee recommends that:
The plaintiff and 3 others:
i) Should be warned for negligence of duty (See Rule 3(4) of "Exhibit B"
ii) Their salaries should be reduced to the first notch of their present scale."
The above recommendations were referred to the Executive Committee in "Exhibit N". The Executive committee also recommended that "Mr P. K. Aboagye should be warned for negligence of duty and be reduced by four (4) notches of his grade". This is an increase in plaintiffs' punishment. Afterwards a report of the Executive Committee went to the Board see Exhibit L".
And in the minutes of the bank it can be seen that the Board decided as follows:
"Mr. P. K. Aboagye should be dismissed from the service of the Bank and action taken to recover all lost monies."
Consequently, on 4th November 1994 a written memorandum signed by the General Manager and the Deputy Head of Human Resources and Development Division of the Bank was addressed to the plaintiff in "Exhibit C", to the plaintiff which stated that:
"The Board at its meeting held on 27th October 1994 noted the extent of your involvement in the malpractices at our Foreign Operations Branch and decided that you should be dismissed for gross misconduct. You are accordingly dismissed from the service of the bank forthwith..."
On the 28th November 1994 the plaintiff petitioned the Board in "Exhibit D" for reconsideration of the decision but on the 15th October 1995, the plaintiff received the results of his petition, to the effect that his petition has been refused by the Board.
The plaintiff thereupon initiated action at the High Court. It is the case of the plaintiff/appellant that there had been breaches of the rules of natural justice with regard to the disciplinary proceedings against him, and the trial court held that for that reason the plaintiff's dismissal was unlawful. But on appeal by the defendant bank to the Court of Appeal, the said court reversed the trial courts decision and found for the defendant bank i.e. Ghana Commercial Bank. It was the case of the plaintiff the General Manager (Human Resources and Development Division) who suspended the plaintiff on the 31st March 1994 is the same person who was a member of the disciplinary committee established under Rule (5) 1 of the Staff Rules.
Also that the representative of Inspector/Audit Division who investigated and queried the plaintiff and received his explanation also served on the Disciplinary Committee and that in the result the same two people who investigated the conduct of the plaintiff prosecuted him also sat in judgment over him. By this submission the plaintiff was saying that there had been a breach of the maxim "nemo judex in sua" rule namely that "No man should be a judge in his own cause." This rule is designed to eliminate bias and to ensure fairness in the hearing of a case against an alleged offending persons facing a disciplinary inquiry. This is a legitimate complain as can be seen, in the case of Cooper v. Wilson (1937) 2 KB 39 where it was held that the presence of a Chief Constable with the Watch Committee during the hearing of an appeal of a Police Sergeant who had been dismissed by his chief was fatal to the validity of the Watch Committees decision.
Lord Justice Scott said:
"The risk that a respondent may influence the court is so abhorrent in English notion of justice that the possibility of it, or even the appearance of such a possibility is sufficient to deprive the decision of all judicial force and to render it a nullity. The procedure adopted by the bank breached the rule of "Nemo judex in sua" rule, a part of the rule of natural justice."
In this case also the people who charged him and suspended him and who had an interest in the case tried and convicted him. This is a breach of the rule of natural justice, that accusers cannot be judged in their own cause. For this reason the dismissal of the plaintiff is void. See L'iar Liquid Ghana v. Admin Supra. On the issue of "audi alterem partem" rule, namely: hear the other party, the plaintiff complained that:
a) After the respondent bank received the answer to his query sent to him on 30th March 1994, it was the duty of the defendants to formulate the relevant charges against him and afford him adequate opportunity to reply or to plead to them, but this was not done.
b) that also the plaintiff should have been informed and served with notice in advance of the intended hearing of any charges against him by defendant. That if this had been done then the plaintiff would have been aware of the impending disciplinary trial and may have been aware of the impending disciplinary trial and may have under the requirements of Rule 4(1) of the Ghana Commercial Bank Ltd Staff Conduct and Discipline Rules, applied or requested for a personal hearing to the Disciplinary Committee. Since the plaintiff knew nothing about any disciplinary charges being tried by the Committee against him he could have applied for a personal hearing, to his detriment. Plaintiff also did not know the contents of the BNI report which had been sent to the defendant to enable him to give any comment on it and he did not receive any other report either that of the Disciplinary Committee of the Executive Committee so he could not have defended himself until he received the letter of dismissal dated 4th November 1994 from the procedure being taken against him.
According to Rule 4(2) the disciplinary committee should have drafted its recommendation to the Executive Committee in a logical judgment like fashion by giving cogent reasons for its conclusions but there is no indication that even this was done, since no such reports and recommendations were made available for study by the plaintiff.
Rule 4(3) stipulates that:
"The executive committee should carefully consider the investigation report, the employees defence statements, the seasoned recommendations of the Disciplinary Committee and examine whether the facts have been brought out in a fair and impartial manner. Based on its assessment, the executive committee may arrive at its own conclusions and may even differ with the recommendations of the Disciplinary Committee. It may fix a reduced or enhanced penalty or may approve of the recommendations of the Disciplinary Committee. In cases where the penalty is enhanced, the Executive Committee may do so after granting a personal hearing for the employee if no such hearing was given by the Disciplinary Committee."
The Disciplinary Committee reports in Exhibit "M" concerning plaintiff is as follows:—
"Mr. P. K. Aboagye and others
The above named four officers countersigned some drafts/telex messages without satisfying themselves about the genuineness of the transactions."
Committee noted that the drafts and telex messages were counter signed by the four and did not originate from them. Some of the funds remitted are still outstanding.
They: i) should be warned for negligence of duty
ii) their salaries should be reduced to the first notch of their present scale."
But the executive committee in Exhibit "N" increased the punishment of plaintiff and said "Mr. P. K. Aboagye should be warned for negligence of duty and reduced by four (4) notches of his grade". The said committee did not give plaintiff a personal hearing before enhancing his sentence.
Also in Exhibit L the entry in respect of the Board decision is that:
"The board studied the length the special reports on the lapses at the Foreign operations branch. It expresses grave concern about the general look of supervision and non-observance of the laid down rules at the branch. It noted further that the irregularities had persisted for a long time without being detected.
The board then took the following decisions that Mr. P.K. Aboagye should be dismissed from the service of the bank and action taken to recover all lost monies."
Rules 6(1) and 6(2):—
6:1 "The Executive Committee shall be the Disciplinary authority in respect of all categories of employees up to and including the grade of Assistant Managers"
6:3 "The Board will be the Disciplinary Authority in respect of officials above the grade of Assistant Manager, but all such cases will be referred to the Board through the Managing Director."
The appellant is above the grade of Assistant Manager, he is Senior Manager and therefore the board is the disciplinary authority over him. Since he had not had the opportunity of being personally heard by the investigating committee, for the reasons he had given, he should have been given a personal hearing by the Executive Committee, which enhanced his and also by the Board which dismissed him—enhancement of punishment of the Board which is the disciplinary authority over Plaintiff. The Executive Committee in Rule 4(3) was required to give a personal hearing to an employee who had not been heard personally by the Disciplinary Committee if the sentence or punishment recommended by the disciplinary committee is to be enhanced neither but the executive committee nor the Board complied with the rule dealing with enhancement of punishment. Plaintiff was also not given a personal hearing by the Board which enhanced his penalty, to that of dismissal from the Bank. By parity of reasoning if the Executive Committee is required to give a personal hearing to an accused officer who is subject to its disciplinary authority before enhancing his sentence, then the Board which is also the disciplinary authority of the plaintiff should, by necessary implications have also personally heard him before ordering his dismissal from the Bank in compliance with Rule 4:3. The reason for this requirement when it comes to fixing the penalty or punishment, is to enable an accused and convicted official to plead in mitigation of sentence, where he was not been given an opportunity to be personally heard at the Disciplinary Committee, where he could have taken up that matter. For failure to comply with Rule 4:3 the Board breached the rules of fair play as well as its own disciplinary procedure Rules and condemned and enhanced the punishment of the Plaintiff without giving him a hearing contrary to the "audi alterem rule". As already stated above a decision given without regard to the principles of Natural Justice is void. It is my considered opinion that in this case also failure to apply the rules of natural justice and the procedure rules of the Bank renders the decision of the Board and dismissal of plaintiff void. In view of this opinion, I find that the High Court was justified in the decision that there has been a breach of the rules of natural justice and that, consequently, the plaintiffs dismissal was unlawful. For the above reasons I hold that the Court of Appeal erred in reversing the High Courts decisions. This finding I believe was a result of wrong application of the rules of fair hearing and natural justice by the majority of the court. An example of some of the errors committed is that in the opinion of Mr. Justice Ofori-Boateng J. A. "because of the knowledge and experience of Mr. Aboagye, he need not be reminded of his right". But the rules of fair trial include the audi alteram partem rule, which implies that it is the authority exercising disciplinary power ought to afford the Plaintiff the opportunity of being heard, he should be informed of the charges and date and place of trial. It is only by so doing that the plaintiff would have been enabled to present his defence. The face that he ought to have known or be presumed to know the rules, does not relieve the bank from conforming with the rules of a fair trial as referred to in above. In any case plaintiff cannot exercise his right in Rule 4 (1) of the rules, to ask for a personal hearing. When he has not been served with any charges or given notice of hearing nor given the opportunity to defend himself against these charges except when he is informed that a disciplinary hearing was going on. It is not right to merely assume that the plaintiff should have known his rights. Plaintiffs' rights cannot be wished away by a mere presumption, and furthermore a query is not the same as a disciplinary charge or notice of an on going disciplinary proceedings. The two queries in "Exhibit E" and "Exhibit G" merely asked the plaintiff to give reasons why he signed the draft No. 177036 dated 17/7/92 for £15,000 and a cable authorising payment of US$13,559.60 on behalf of White Chapel without ensuring that the customers account were debited and why internal entries were not passed to the debit of customers and to confirm whether the signature on the two transactions were that of the plaintiff which he did. Surely these queries cannot by any stretch of imagination be considered or likened to a disciplinary charge or to notice. Nor did the queries refer to any disciplinary charge against him. Another example is the interpretation put on Rule 4(3) by Justice Ofori Boateng. He said:
"However it is wrong noting that in Rule 4(3) the duty on the Executive Committee to give a personal hearing to the victim is not a mandatory one. It is discretionary. The Executive Committee may therefore, for its own reasons enhance the punishment without giving any personal hearing. In this case the Executive Committee enhanced the respondents punishment without giving him a personal hearing. This behaviour by the Executive Committee is within the rules and not in violation of them."
This interpretation was erroneous since the discretionary power of the Executive committee or by implication that of the Board to enhance punishment can only be exercised after giving a personal hearing to the plaintiff or employee under the above quoted rule. Therefore it is wrong for the said Learned Judged to hold that the behaviour of the Executive committees is within the rules, on the contrary it is a violation of Rule 4(3) says:
".........................
In cases where the penalty is enhanced the Executive Committee may do so after granting a personal hearing to the employee if no such hearing was given him by the Disciplinary Committee."
This is a mandatory provision—a prerequisite to the exercise of the discretionary power to enhance punishment. The same refers to the Board. In Kanda v. Government of Malaya (1962) AC 322 it was held in holding 2
"that the failure to supply the appellant with a copy of the report of enquiry which contained matter highly prejudicial to him and which had been sent to and read by the adjudicating officer before he sat to inquire into the charge amount to a failure to afford the appellant "a reasonable opportunity of being heard" in answer to the charge, within the meaning of Article 135(2) of the constitution and to a denial of natural justice."
The dismissal of Kanda in the above named circumstances was therefore declared invalid as made contrary to the rules of natural justice. In the same vein the failure to observe the provisions of Article 23 regarding issue of a fair hearing in the circumstances of this case, nullified the verdict of the Board of the defendant bank in respect to the dismissal of plaintiff.
Finally in considering the question whether or not in any particular case there has been a failure of natural justice, the fact that there was evidence to support the charge preferred against the plaintiff namely Negligence, is immaterial to the determination of the issue whether the plaintiff had not been given a fair trial. Lord Denning the case of Annamunthodo v. Oil Field Workers Union (1961) AC 945 on this point said,
"Mr. Lazarus did suggest that a man could not complain of failure of natural justice unless he could show that he had been prejudiced by it. Their Lordships cannot accept this suggestion. If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the courts. It is a prejudice to any man to be denied justice. He will not be entitled to damages if he suffered none. But he can always ask for the decision against him to be set aside."
I think that the Appellant has succeeded in showing that he did not receive a fair trial by the Defendant Bank in respect of the disciplinary proceedings held against him and that his conviction and the decision to dismiss him for negligence is null and void. The Court of Appeal erred in reversing the decision of the High Court. The appeal of Appellant is allowed and the decision of the trial High Court wholly restored, including the award of damages granted to the Plaintiff by the High Court.
AMPIAH, JSC: I agree
ADJABENG, JSC: I agree that the appeal be allowed. After perusing the record in this matter and considering the submissions made on both sides, and the authorities cited, I am of the view that the trial judge was right in holding that the dismissal of the appellant was null and void as he had not been given a hearing. Some of the justices of the Court of Appeal took the view that giving the appellant a query amounted to giving him a hearing. And they relied on the Court of Appeal case of Aryee v. S.C.C. [1984-863] 1 GLR 424, C.A. and the case of the Republic v. Ghana Railway Corporation, Ex Parte Appiah [1981] GLR 752. The above two cases can be distinguished from the present one as the former concerned the termination of an appointment in accordance with the terms of the contract between the parties and, in the other case, the applicants had earlier been notified to appear before a board of enquiry. Quite apart form this, some of the judges of the Court of Appeal, in the present case, lost sight of the fact that the appellant had a right of a personal hearing under Rule 4(1) of the Staff Rules, Exhibit 'B'. Rule 4(1) of Exhibit 'B' provides as follows:—
"The Disciplinary Committee may be vested with the authority to offer a personal hearing to the delinquent employee if such hearing is requested for by the employee, and the Committee by majority opinion feels the need for such hearing in order to afford a fair opportunity to the employee. The authority of the Disciplinary Committee to offer personal hearing is, however, restricted to employees up to the grade of Senior Managers. In other cases, the employee's request may be put up to the Executive Committee for consideration."
It is clear from the above rule of the defendant Bank that the appellant was entitled not only to a hearing, but a personal hearing. Giving him a query would not, by any stretch of the imagination, be the same as giving him a personal hearing. The trial judge found that the appellant was not notified of the proceedings before the Disciplinary Committee to enable him decide whether or not to request for a personal hearing. To counter this, it has been argued on behalf of the defendant/respondent that with his experience, and after his receipt of the queries and the letter of suspension, the plaintiff/appellant knew or ought to have known that investigations were going on and so he could have requested for a personal hearing if he in fact needed it. I am not impressed by this argument. There is nothing in the queries or in the suspension letter which suggested that there was going to be proceedings before any committee. In my view, it is the duty of any adjudicating authority to act fairly and with transparency. Why should the appellant's or any other person's fate be decided in secrecy? What is the point in doing that? Our 1992 Constitution in Article 23 provides that:—
"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."
I do not think that the appellant was treated fairly in this matter.
Another serious error the defendant Bank committed against the appellant was to order his dismissal, contrary to the recommendations of the Disciplinary Committee and the Executive Committee that the appellant be warned and his salary reduced, and thus an enhancement of his penalty, without giving him a personal hearing. Rule 4(3) of the Staff Rules, Exhibit 'B' provides as follows:—
"4(3) The Executive Committee should carefully consider the investigation report, the employee's defence statements, the reasoned recommendations of the Disciplinary Committee and examine whether the facts have been brought out in fair and impartial manner. Based on its assessment, the Executive Committee may arrive at its own conclusions and may even differ with the recommendations of the Disciplinary Committee. It may fix a reduced or enhanced penalty or may approve of the recommendations of the Disciplinary Committee. In cases where the penalty is enhanced, the Executive Committee may do so after granting a personal hearing to the employee if no such hearing was given by the Disciplinary Committee."
(emphasis mine)
The provision in the above rule that the Executive Committee should give a personal hearing to an employee if the committee wanted to enhance the penalty recommended by the Disciplinary Committee in case no such hearing had been given to the employee, is a commendable provision. It seeks to give a fair opportunity to the employee who finds himself or herself in such a situation. Having found the necessity for such a provision, it is my view that the application of this provision should not be restricted to the Executive Committee. It must apply to the Board as well so as to ensure that fairness that is necessary in such matters. Unfortunately, the Board failed to apply this laudable provision to itself when dismissing the appellant. In my view, the Board of the defendant Bank should have given the appellant a personal hearing when it decided to enhance the penalty recommended by both the Disciplinary and Executive Committees. They were wrong in not giving him this opportunity.
In my view, the Board was also wrong in altering the finding of the Disciplinary Committee which first sat on the matter from misconduct to gross misconduct. It is difficult to find the basis of this new and more serious finding.
On the whole, therefore, I agree that the appeal ought to succeed.
ACQUAH, JSC: I also agree.
ADZOE, JSC: This is an appeal against the judgment of the Court of Appeal which reversed the trial High Court judge's decision in favour of the appellant.
The appellant took action in an Accra High Court claiming the following reliefs:
(a) A declaration that the purported summary dismissal of the plaintiff with loss of benefits from employment with the defendant by the Board of the defendant communicated by the General Manager of Human Resources and Development division on or about the 4th November, 1994 was ultra vires, unlawful, null and void and ought to be set aside.
(b) A declaration that the suspension of the plaintiff on half salary for a period of more than six months was ultra vires the Staff Rules and hence plaintiff is entitled to the refund of his salary wrongfully withheld.
(c) A declaration that the Defendant is therefore not entitled to treat the plaintiff as if he were dismissed and hence the plaintiff is entitled to his arrears of salary.
(d) Further or in the alternative damages for wrongful dismissal and costs.
In his statement of claim the appellant stated that his appointment was premised on the condition that he would agree to be governed by the Staff Rules. He claimed that on 4th November, 1994, the defendant purported to summarily dismiss him and that the said dismissal was wrongful by reason of certain factors which I will soon draw attention to.
The trial was brief. At the end of it all the learned trial judge declared that the plaintiff's dismissal was null and void. He gave judgment "for the plaintiff against the defendants for all the claims endorsed on the writ of summons". He awarded ¢25,000,000.00 damages for wrongful dismissal with costs of ¢2,000,000.00 against the defendants.
The defendant appealed to the Court of Appeal and won. The plaintiff has now come to this court praying that the judgment of the Court of Appeal be set aside. His ground of appeal reads as follows:—
"The judgment was against the weight of the evidence adduced and against the rules of natural justice."
Let me say at the onset that the appellant's ground of appeal is an apology for professional expertise. It is the only substantive ground of appeal filed and I wish it were better framed. The appellant is appealing against the decision of the Court of Appeal. The Notice of Appeal says
"Take Notice that the Plaintiff/Respondent herein being dissatisfied with the judgment of the Court of Appeal dated 26th November, 1998 doth hereby appeal to the Supreme Court upon the grounds set out in paragraph 3 ..."
I cannot imagine what reasons he has to attack the Court of Appeal judgment as being against the rules of natural justice. The attack is clearly misconceived and misdirected. There is no justification for it. It is misdirected because counsel for the appellant did not seem to direct it at the Court of Appeal Judgment but rather at the defendant's act of dismissing the appellant. I am of the opinion that this portion of the appellant's ground discloses no reasonable ground of appeal against the judgment of the Court of Appeal. Nowhere in his submission before this court has counsel for the appellant shown what the Court of Appeal did to render its judgment against the rules of natural justice. Every submission made by counsel in respect of the rules of natural justice related to the steps taken by Respondent in dismissing the appellant. Rule 6(5) of the Supreme Court rules gives the court power suo motu to strike out any ground of appeal which discloses no reasonable ground of appeal. In the exercise of that prerogative, I would delete that portion of the ground of appeal which states that the judgment is against natural justice. In the result the ground will now read as follows:—
"The judgment was against the weight of evidence adduced."
The court will therefore deal with the appeal on the ground as amended and try to draw the right conclusions from the evidence.
The ground for the dismissal alleged in the letter dismissing the appellant was gross misconduct. The letter reads:
"The Board at its meeting held on 27th October, 1994 noted the extent of your involvement in the malpractices at our Foreign Operations Branch and decided that you should be dismissed for gross Misconduct."
The respondent bank accordingly particularised the "gross misconduct" into three acts namely (1) signing a Draft for £15,000.00 issued in favour of a customer who did not have sufficient funds in its account, (2) signing a cable authorising payment of the sum of 13,559.60 dollars on behalf of a customer without ensuring that the customer's account have been duly debited and (3) Neglecting to ensure that internal entries in respect of the said two transactions were passed to the debit of the two customers' accounts. The respondent insist that the appellant was negligent in the sense that he countersigned the documents without checking on the state of the customers' accounts and thereby aided the customers to commit fraud on the bank.
According to the defence, the financial loss caused to the bank was due to the default or wilful act of the appellant. The respondent also insist that having regard to the circumstances of the case, the summary dismissal of the appellant was just and proper, more so because, according to the respondent the appellant himself admitted that he was negligent. The appellant denies that he acted negligently. His case was that he counter-signed the documents which originated form outside his department believing that the officers of the originating department had made and passed the proper entries before signing the cheque and telex message sent to him to countersign. In his petition against the dismissal he re-affirmed his position as follows:—
"Therefore an officer signing or countersigning a cheque or telex message especially outside his department believes that the entries have been passed. This was the practice at that time. There was the reciprocal trust among the various departments. All officials were, like Julius Caeser's wife, expected to live above reproach. We worked under the legal maxim that he who comes for equity must come with clean hands. It was under this set up that I appended my signature to the two documents in questions."
When the transaction was initially discovered, and the appellant was given a query requesting him to give reasons why he signed the transactions without ensuring that the customers' account were debited, he explained the circumstances in which the documents were brought to him for signature and concluded that there was mutual trust among the officer corps to ensure the free flow of work.
"If officers were to insist on seeing entries before countersigning cheques and cables (a) work would slow down and (b) there would be delays in taking entries to the waste department."
It must be observed that the issue involved in the suit was not as to the alleged misconduct or negligence of the appellant; the issue was whether or not, misconduct or no misconduct, negligence or no negligence, the summary dismissal of the appellant was proper or wrongful. The appellant's complaint was, inter alia, that firstly the authority which purported to dismiss him lacked original jurisdiction to do so; secondly, the dismissal was in blatant violation of the defendant's own Staff Rules and the rules of natural justice because of apparent bias and because he was not given a hearing. The defendant denied that the dismissal was wrongful. From the pleadings filed, the central issue which emerged and was set down in the Summons for directions was issue (b) which reads:
"Whether or not the dismissal of the plaintiff was carried out in accordance with the staff rules and or natural justice or both."
It is clear, therefore, that we are not dealing with negligence but the course of conduct embarked upon by the defendant in dismissing the appellant. We will, I think, fall into grave error if we should give too much attention and weight to the alleged misconduct or negligence levelled against the appellant and forget what the real issue is.
The appellant's case is as follows: Before the dismissal he was given a query on 25th March, 1994 which he answered on 30th March, 1994. I have already referred to the query and reply. He was then suspended from the service pending investigations. This suspension letter was dated 31st March, 1994. The matter was referred to the Bureau of National Investigation to investigate and on 20th April, 1994, the BNI collected a statement from the appellant, and other employees of the bank who were involved in the transactions. The BNI investigations Report was tendered as Exhibit K. Thereafter the defendant caused an investigation into the disciplinary aspect of the case without notifying the appellant. The disciplinary investigation was conducted by the Disciplinary Committee established under the Staff Rules. Its report with the recommendations in respect of the appellant was tendered in evidence as Exhibit M. It was subsequently forwarded to the Executive Committee of the defendant. The Executive committee studied the report and reviewed the penalty recommended by the Disciplinary Committee. It is the case of the appellant that he was not given any notice about these proceedings before the two bodies and that he was not given any opportunity of being heard. The Executive Committee which under the Staff Rules had not the power and authority to discipline the appellant, appeared to have sent its revised recommendations to the Board of Directors which alone was competent to discipline the appellant. The Executive Committee's work is in evidence as Exhibit N. The appellant complains that the Board of Directors also did not give him notice that they were going to review the case against him. So therefore the appellant has clearly demonstrated that he was not aware of all the processes taken by the defendant in arriving at the decision to dismiss him.
But the respondent vigorously and strenuously contended that the audi alteram partem rule had not been breached. In the view of the respondent the appellant was given all the chance of being heard. In the first place the appellant was given a query which he answered, admitting his negligence. Secondly, the appellant had the right to ask for a personal hearing when the Disciplinary Committee was carrying out its investigations but the appellant did not take advantage of that opportunity and, therefore, having failed to apply to be heard before the Disciplinary Committee, the appellant cannot be heard to complain that he was not given a hearing. The primary issue is, therefore, this: Can the appellant be right in his claim that the audi alteram partem rule was breached? To find the answer, we may have to start by looking at the Staff Rules which govern all disciplinary procedures.
The Rules which are described as "Ghana Commercial Bank Ltd. Staff Conduct and Disciplinary Rules" apply to permanent Staff of the respondent Bank. Section 2.1.1 describing the scope of these rules declare that they "cover general observance of good conduct, discipline, integrity, diligence, fidelity etc". Their scope is without any express limitation. But it is clear that in the event of any employee being found guilty of any act of misconduct, he would certainly be penalised. The penalties vary according to the facts and circumstances of each particular case, as section 3.2 suggests:
"The penalties for proven acts of indiscipline/misconduct extend over a wide range, from 'summary dismissal' to 'warning'. The nature and quantum of penalty in each case will be determined by the competent authority after taking various related factors into consideration."
The appellant is a Senior Manager and so according to the rules the competent authority to determine the penalty in his case is the Board of Directors as provided in Rule 6(3): "The Board will be Disciplinary Authority in respect of officials above the grade of Assistant Manager. But all such cases will be referred to the Board through the Managing Director". The rules are not well coordinated and it does not appear very clear whether every alleged act of indiscipline or misconduct must necessarily be investigated first by the Disciplinary Committee before action is taken by the Disciplinary authority. That however, appears to be the general procedure at the respondent bank. The suspension of the appellant was imposed pending investigations. The BNI investigated the criminal aspect, and the Disciplinary Committee investigated the internal disciplinary aspect. The Staff Rules defines the procedure before the Disciplinary Committee. Rules 4(1) provides:
"The Disciplinary Committee may be vested with the authority to offer a personal hearing to the delinquent employee if such hearing is requested for by the employee and the Committee by a majority opinion feels the need for such hearing in order to afford a fair opportunity to the employee. The authority of the Disciplinary Committee to offer personal hearing is, however, restricted to employees up to the grade of Senior Managers. In other cases, the employees request may be put up to the executive Committee for consideration."
The rule appreciates the need for a fair hearing and many an employee who is facing a case as serious as that involving the appellant may wish to clear his name and maintain his integrity and keep his employment. An employee under investigation can, however, request for a personal hearing only when he is informed that an investigation is being undertaken by the Disciplinary Committee. The appellant's right to be heard demanded that he be informed of any charges against him. If the appellant was not notified about any proceedings before the Disciplinary Committee, I do not see how he could be condemned for not requesting for a personal hearing. His evidence is clear and unchallenged that he had no knowledge of the disciplinary proceedings. This is what he told the trial court in his evidence-in-chief:
"I was wrongfully dismissed by the defendants. No charge of misconduct was preferred against me. I did not appear before any disciplinary committee before I was dismissed."
When the respondent's representative Mr. Joseph Patrick Darku Wellington gave evidence, he never showed that the appellant was given notice of the proceedings before the Disciplinary Committee and under cross-examination this gentleman admitted that the appellant was not given the opportunity of being heard. He was asked, "was the plaintiff given an opportunity of being heard", and his answer was a definite "No". It stands to reason, upon the evidence, to accept the appellant's story that he had no notice of the proceedings before the Disciplinary Committee and that was why he did not apply to be given a personal hearing.
The Disciplinary Committee investigation went on behind the appellant; the committee's recommendation was that the appellant be warned and his "Salary reduced to the first notch" of his present scale. The recommendation was forwarded to the Executive Committee as required by Rule 4(2) of the Staff Rules. The Executive Committee was mandated to "carefully consider the investigation report, the employees defence statements, the reasoned recommendations of the Disciplinary Committee and examine whether the facts have brought out in a fair and impartial manner. Based on its assessment, the Executive Committee and may even differ with the recommendations of the Disciplinary Committee. It may fix a reduced or enhanced penalty or may approve of the recommendations of the Disciplinary Committee. In cases where the penalty is enhanced, the Executive Committee may do so after granting a personal hearing to the employee if no such hearing was given by the Disciplinary Committee."
It is here important to note that the Executive Committee is empowered to examine the proceedings before the Disciplinary Committee and if it thinks fit review any punishment recommended by the Disciplinary Committee. The review may take the form of enhancing the recommended penalty, subject to this proviso that if the Executive Committee intends to increase the punishment, it can do so only after granting the appellant a personal hearing in case no such hearing was given him by the Disciplinary Committee. The evidence, however, shows that the Executive Committee also reviewed the findings of the Disciplinary Committee and enhanced the punishment without giving the appellant a hearing. While accepting that the appellant should be warned, the Executive Committee recommended the reduction in grade by "four notches" which amounts to an enhancement of the Disciplinary Committee's recommended penalty. Before they could do that they were mandatorily required to give the appellant a personal hearing. But again the appellant had no notice about the review exercise before the Executive Committee. When the Executive Committee, realised that it was not within its powers to impose disciplinary sanctions on the appellant who is a senior manager, the committee referred its own recommendations to the Board of Directors, being the appropriate body, to pronounce the penalty. The Board too did not give the appellant any notice or the chance to be heard. I think the hearing requested before increasing the recommended penalty may not be intended to open up the whole inquiry but perhaps to afford the employee the chance to show cause why the penalty should not be increased. The evidence is unchallenged that no chance of a hearing was given to the appellant throughout the entire spectrum of the process leading to his dismissal. And I think the learned judges of the Court of Appeal with respect erred when they said that since the appellant did not request for a personal hearing the loss of that opportunity could not be blamed on the Disciplinary Committee. They overlooked the circumstances under which the appellant would have been enabled to exercise that right. When Justice Ofori-Boateng quoted de Smith to the effect that "The courts have held that the failure to give formal opportunity to be heard is immaterial if the person affected was in fact aware of what was proposed or knew or ought to have known that he could have made representations had he wished" he ought to have immediately realised that the statement scored a point in favour of the appellant's case because the evidence showed that the appellant was not aware that any investigation before the Disciplinary Committee was proposed and even carried out.
It is also contended on behalf of the respondent that the query served on the appellant and his reply thereto constituted sufficient hearing. I do not think this is acceptable. In my opinion the two queries served on the appellant did not form part of the investigations. The first query Exhibit "E" asked him to give reasons why he counter signed the documents. That query was issued on 25th March, 1994. The second query dated 29th March, 1994 asked him to confirm whether the signature on the two documents was his. These two queries certainly preceded the BNI investigations which were conducted between April and June 1994. And the investigation by the Disciplinary Committee also was done after the BNI investigations. Indeed if the queries and answers had satisfied the respondent, no further investigation would have been called for. The queries were precursors of the investigations and did not seek to probe the appellant's involvement in the transactions. I would hold that those queries do not constitute the hearing envisaged by the rules of natural justice or the Staff Rules. Some reliance was placed on the decision in Aryee v. State Construction Corporation (1984-86) 1 GLR 424 which was decided by the Court of Appeal. The Court of Appeal in its judgment in that case delivered by Adade JSC was quoted as saying as follows:—
"But what is a "hearing" in this context? Where a board writes to an employee drawing his attention to alleged acts of misconduct and impropriety and invites a written explanation, we would think that the employee would have been given an opportunity to be heard. And if the employee writes back answering the queries and offers explanations and justifications for his conduct or otherwise upon "sober refection" withdraws the allegations and insinuations and apologises for his conduct, then surely he would have taken advantage of the opportunity offered 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"
Lamptey, J.A.. as he then was and Mrs Wood relied on this pronouncement by Adade JSC to support their views that the queries given the appellant in the instant case were enough to constitute a hearing. I think that here too they were wrong. Very few propositions of law are of universal validity and applicable in all circumstances. In the greater number of cases statements framed by certain judges as general principles of law are indeed not so. In the Aryee case the court found that Aryee was not dismissed; the corporation merely terminated their contract with him as they were entitled to do and paid him his three months salary in lieu of notice. There was no suggestion that the corporation gave Aryee any query before terminating the contract. What happened was that on an earlier occasion Aryee had done the very thing and when he was "arraigned" before the board of directors he wrote a letter and apologised after a "sober reflection". This was before the offence for which the contract was terminated. I think that the statement of the learned Justice in the Aryee case was unfortunately too wide and misleading. The contents of every query and the answer thereto will have to be examined to see if they qualify to satisfy the requirement of a hearing.
What then is a "hearing" in the context of the Staff Rules? In trying to answer this question it is pertinent to remind ourselves that is not advisable to follow and apply principles and rules of law without a careful examination of the peculiar facts and special circumstances which impinge on the application of those rules and principles. I concede that some authorities indicate that a hearing does not necessarily involve the physical presence of the employee, or a formal trial akin to court proceedings see Halsbury's Laws of England, Vol. 14th Edition paragraph 84; Rep. v. Ghana Railway Corp. (1981) GLR 752, at 758; Aryee v. State Construction Corp. (1984-86)1 GLR 424 holding 2 at page 426; But this statement is subject to several qualifications that may become necessary having regard to each particular case. Thus the learned authors in Halsbury's Law of England in the very paragraph 4 which I have quoted above also had this to say:—
"The standard of natural justice and fairness are highly flexible. Although the two cardinal principles stated above must normally though not invariably be observed, the precise procedure to be followed in a given situation depends upon the subject matter of the decision or adjudication and upon all the circumstances of the case."
It must not be lost on us that the right to be heard, which we also call the audi alteram partem rule is an essential characteristic of the principle of natural justice. It postulates that if any evidence is taken against a man he must be informed and allowed an opportunity to correct or contradict all adverse facts given against him. Special circumstance alone will defeat this basic edict of the law. Besides, the dismissal of the appellant was carried out under specific rules governing the appellant and the respondent bank. Those rules enjoin the Disciplinary Committee and the Executive Committee to give the appellant a "personal hearing". The emphasis is on the word "personal". I am of the view that "personal hearing" requires the presence of the appellant during the proceedings. But it has been argued that the conduct of the appellant viewed in the context of the nature of the business of banking constitutes such a grave misconduct that it was lawful to dismiss him even without a hearing. The case of Lever Bros. Ghana Ltd. v. Annan (1989-90) 2 GLR 385; Presbyterian church Agogo v. Boateng (1984-86) 2 GLR 523; Edward Nasser and Co. Ltd. v. Abu Jawdi (1965) 2 GLR 523; Halsbury's Law of England, 3rd Edition at page 485, paragraph 938 were cited in support. The principle relied on is this:
"A servant whose conduct is incompatible with the faithful discharge of his duty to his master may be dismissed... Dismissal is also justified in the case of a servant... If his conduct has been such that it would be injurious to the matter's business to retain him."
I agree that this is the common law position. Bowen L.J. had expressed it in 1888 when he said that it is right for the employer to instantly dismiss the employee if the latter's conduct is not only wrongful and inconsistent with his duty towards his master but also inconsistent with the continuance of confidence between them: Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch. 339, 363. A close study of the authorities would, however, reveal that the law has not been static. Before the close of the 19th century the principle of audi alteram partem did not appear to have any general application to the case of master and servant. But by the second half of the 20th century the traditional attitude of the common law to the employer's hitherto unrestrained right to dismiss the servant was experiencing a severe erosion, with greater emphasis now being placed on the need to give some protection to the servant in a bid to promote industry. The tendency has been to discourage summary dismissals which are, in certain jurisdictions now termed "unfair dismissals" (vide the English Industrial Relations Act, 1971 and the Trade Union and Labour Relations Act, 1974) The area of dismissals in the common law of master and servant is now largely superceded by statutory provisions and express employment contractual agreements which bind the parties. In the face of statute law and contracts the common law rules and authorities become almost irrelevant, and the drift has been quite so great that I dare that say cases decided on the principle of law relied on by the Court of Appeal must be considered as thoroughly devitalised and no longer of any controlling authority.
My Lords, permit me to illustrate the point I am making. I will use three cases. The first case is the case of Sinclair v. Neighbour (1976) 2 WLR 1. It was decided by the English Court of Appeal. The facts are simple. The plaintiff was employed by the defendant as the Manager of the betting shop. He took £20 out of the till without the knowledge of the defendant because he knew that if he had asked the defendant the latter would not have allowed him to take it. When the defendant got to know what had happened, he dismissed the plaintiff summarily. The plaintiff sued for wrongful dismissal. The trial judge upheld the claim for wrongful dismissal and the defendant appealed. The Court of Appeal allowed the appeal holding that the conduct of the plaintiff was of such a grave and weighty character as to undermine the relationship of confidence which should exist between master and servant, and therefore the summary dismissal of the plaintiff was justified. The court applied the case of Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch.D already cited supra.
The second case is Earl v. Slater and Wheeler (Airlyne) Ltd. (1973) All ER 145. It was decided under the Industrial Relations Act, 1971, by the National Industrial Relations Court. The plaintiff was an employee of the defendant company. While he was absent from work due to sickness the defendants (his employers) made certain discoveries which showed that the plaintiff was not carrying out his duties satisfactorily. On his return to work the defendants dismissed him summarily without giving him any opportunity to state his case even though the letter of dismissal stated the reasons for the dismissal. An industrial tribunal dismissed the claim for unfair dismissal and the plaintiff appealed. The appellate court allowed the appeal holding that the employers at the time of the dismissal had not given the plaintiff an opportunity to explain the allegations made against him contrary to section 24(6) of the Industrial Relations Act.
The third case I have chosen because it somewhat explains why the difference in the two other cases. This third case is E. Devis and Sons Ltd. v. Aikins (1976) 1 WLR 393. The Respondent was the manager of an abattoir. The appellants were his employers. The Respondent was not taking instructions and the appellants dismissed him and offered him compensation for loss of office. Subsequently, however, the appellants withdrew the offer of compensation and claimed that they had a right to dismiss him summarily on grounds of gross misconduct during his term of employment, even though the alleged misconduct was not discovered before his dismissal. The Respondent made a complaint of unfair dismissal to the industrial tribunal, and the tribunal ruled that in determining whether or not the dismissal was unfair under the Trade Union and Labour Relations Act, 1974, it was not prepared to admit evidence of facts within the knowledge of the appellants at the time of the dismissal; and it found that the Respondent was unfairly dismissed. The appellants, his employers, appealed. The appeal was dismissed. The court held that on a complaint of unfair dismissal under the 1974 Act, the tribunal was not concerned with the contractual relationship at common law between employer and employee but only with the bare fact of the dismissal; and that under the Act the employer was under a duty to satisfy the tribunal that he acted reasonably in dismissing the employee, in which case the tribunal had to confide itself to such facts as were within the knowledge of the employer at the time he formulated his reasons for dismissing the employee. The court relied on Earl v. Slater and Wheeler (Airlyne) Ltd, supra and distinguished Deep Sea Fishing and Ice Co. v. Ansell, supra.
Philip J in his judgment at page 397 as follows:—
"Mr. Bresler, in his argument, relies strongly on the common law in relation to contracts of employment and cites Cyril Leonard and Co. v. Simo Securities Trust Ltd. (1972) 1 WLR, 80 ....That seems to me on the merits to be a very persuasive argument. The difficulty lies partly in the language of paragraph 6(8) of schedule 1 to the Act of 1974, and partly in the decided cases."
He continued at page 399:
"Naturally, in developing his submissions, Mr. Bresler has pressed me strongly with the cases of Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch.D. 3390 and Cyril Leonard and Co. v. Simo Securities Trust Ltd. (1972) 1 WLR 80. But, quite apart from the two cases under the Industrial Relations Act, 1971 which I cited, it has to be borne in mind, I think, that there is a considerable difference between the position at common law and the position under the Industrial Relations Act 1971 and, now the Trade Union and Labour Relations Act 1974. The common law is concerned merely with the contractual relationship between the parties, whereas a complaint of unfair dismissal under the Act of 1974 is concerned with the statutory right of an employee not to be unfairly dismissed."
We have the Ghana decided cases following the modern pattern that the employer-employee relationship, where there are agreed service conditions, must be governed by those conditions. In the University of Ghana v. Mensah (1984-86) 2 GLR, 622 where the termination of the employee's services were held to be wrongful, the learned High Court Judge correctly, in my view, said:
"The action in this case is that of master and servant. In this case where the relationship of the parties is governed by the United Conditions of Service for Senior Staff of the University of Ghana, Exhibit 1, effect should be given to it."
See also the cases of Presbyterian Hospital, Agogo v. Boateng (1984-86) 2 GLR 381, Akorful v. State Fishing Corp. (1991) 2 GLR 348; Turkson v. Mankoadze Fisheries (1991) 1 GLR 430, Boateng v. Aluminum Co. Ltd. (1984-86) 1 GLR 733.
In my opinion the common law approach advertised by the Court of Appeal is inapplicable in this case; the appellant's letter of appointment, exhibit "A", told the appellant "You are required to agree to be governed by the Staff Rules..." The pleadings and the evidence show that both parties recognise the Staff Rules as governing their relationship. The appellant's claim is that the procedure adopted in summarily dismissing him is "ultra vires" those rules and therefore wrongful. The respondents maintain that they acted within the parameters of the rules. It is wrong to resort to the common law right of the employer to summarily dismiss the employee for gross misconduct. I think it is only fair and right that the parties should be held strictly to the case made out by them in their pleadings, and that the respondent should not be allowed to shift its ground. I do not agree with the applicant that the Board has no authority to dismiss him. Under the Rules it is the Board which is the Disciplinary authority in cases involving Senior Managers and other employees above that rank.
But the evidence is clear that the respondent did not observe the Staff Rules in dismissing the appellant. The Disciplinary Committee did not give the appellant the opportunity to be heard as required by Rule 4(1). The Executive Committee also failed to give the appellant a hearing even though mandated to do so by Rule 4(3). The Board, in dismissing the appellant were enhancing the penalty recommended by both the Disciplinary Committee and the Executive Committee. The Executive Committee and the Board are the two disciplinary authorities. The Executive Committee in deciding to increase any penalty recommended by the Disciplinary Committee in a case involving an employee below the rank of Senior Manager must give that employee a personal hearing; and I think that the Board, acting similarly in respect of employees of Senior Manager rank and above in place of the Executive Committee must equally be bound to give such a personal hearing to the employee.
The appellant's claim that he was denied the opportunity to be heard was made out and the Court of Appeal was wrong in reversing the judgment of the trial High Court.
In the result, I agree that the appeal be allowed. The judgment of the High Court is hereby restored.