PRESBYTERIAN CHURCH OF GHANA vs. REV. C. E. N. DOKU [1999]DLCA7468

Date	1999-12-16
Suit No.	CIVIL APPEAL NO.: CA 1/99
Citation No.	[1999]DLCA7468

ESSILFIE-BONDZIE J.A. (PRESIDING)

TWUMASI J.A.

ARYEETEY J.A.

[1999]DLCA7468
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													<main id="main" class="content" style="min-height: 60rem" >PRESBYTERIAN CHURCH OF GHANA<o:p></o:p>vs.<o:p></o:p>REV. C. E. N. DOKU<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.: CA 1/99 &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 16TH DECEMBER, 1999<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
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J.A. (PRESIDING), TWUMASI J.A., ARYEETEY J.A.<o:p></o:p>

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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>B.
T. ARYEETEY, J. A.:<o:p></o:p>The
claim of the Plaintiffs/Appellants before the trial High Court, Sunyani was for
an order for recovery of the manse and all properties therein from the Defendant/Respondent
who had been retired prematurely from the service of the Plaintiff Church.
Following his retirement, the appellant church paid the respondent a total of
¢627,992 comprising his gratuity and transport fare after an amount of ¢162 had
been deducted from his entitlement. The respondent also accepted the payment of
monthly pension of ¢42,482 from the date of retirement. He however, did not
move out of the manse contrary to the expectation of the church. The respondent
counterclaimed for the following reliefs:<o:p></o:p>&nbsp;(a) The gross
monthly salaries of the remaining 17 years of service. <o:p></o:p>(b) The payment of ¢162,000 with interest at the current
bank rate being part of his entitlements.<o:p></o:p>&nbsp;(c) An order of
perpetual injunction restraining the Plaintiffs and/or their agents from
interfering in any way with the Defendant's stay in the manse until the final
determination of the case. <o:p></o:p>The
trial Court ordered the respondent to surrender vacant possession of the manse
to the church and awarded ¢5,000,000 compensation to be paid to the respondent
in respect of his counter-claim for gross monthly salary of the remaining 17
years of his service. He was also given judgment for the ¢162,000 which was
deducted from his entitlement without the award of interest on that sum. The
appellants filed 6 grounds of appeal but limited themselves to the first 3
grounds of appeal when they filed the statement of their case. The 3 grounds
are:<o:p></o:p>&nbsp;“(a) That the
learned judge erred in awarding to the Defendant ¢5,000,000 compensation, a
relief which the Defendant never sought for in his counterclaim. Besides; the
Defendant having agreed to accept his early retirement and having consequently
taken part in his pension and monthly pension and having directed where the
Plaintiffs should pay his monthly pension, was not entitled to any further
monetary payments from the Plaintiff except his pension. <o:p></o:p>(b) That the learned judge ought to have held that the
Defendant was estopped by his conduct from challenging the propriety of his
early retirement.<o:p></o:p>&nbsp;(c) That the
Defendant was unable to prove that the Plaintiff owed to him the sum of
¢162,000.00”. <o:p></o:p>I
propose to deal first with ground (b) of the appeal namely the learned judge
ought to have held that the Defendant was estopped by his conduct from
challenging the propriety of his early retirement. It must be pointed out that
ground (b) listed in the notice of appeal filed on 30th March, 1998, bears no
resemblance to ground (b) listed in the statement of the appellants’ case. In
spite of my difficulty in identifying what ground (b) of the appeal really is,
I would like to comment briefly on the two versions as presented by the notice
of appeal and the statement of the appellants’ case. <o:p></o:p>The
ground (b) listed in the notice of appeal, speaks of failure by the trial Court
to hold that “the Defendant was estopped by his conduct from challenging the
propriety of his early retirement”. <o:p></o:p>According
to paragraph 7 of the appellants amended reply filed on 26th May, 1997, the
appellants' plea of estoppel was as follows:<o:p></o:p>&nbsp;“The Plaintiff
says that the Defendant is estopped by conduct from denying that he has been
retired from the Presby Church of Ghana”.<o:p></o:p>&nbsp;The ground (b) of the appeal listed in the
notice of appeal speaks of a very different estoppel that was not pleaded. It
is very obvious that the Defendant did not deny that he was prematurely retired
from the service of the appellant church. However, the record of appeal is
replete with information that the respondent, right from the onset, challenged
the propriety of his retirement. What is listed in ground (b) of the statement
of the Plaintiffs' case is not what was pleaded in the amended reply of the
appellants and therefore, the learned trial judge did not err in not coming to
any conclusion in relation to that. <o:p></o:p>In
respect of the new ground (b) which is listed in the Statement of the
Appellants' case, Counsel for the appellants, Dr. Seth Twum has, sought to
create the impression that although the respondent was not given any
opportunity to answer any charge against him, there is sufficient indication of
series of misconduct on his part to justify his premature retirement especially
when he did not take steps to improve upon his personal relations. Counsel for
the appellants expressed his criticism of the finding of the trial judge in the
following words: <o:p></o:p>“The learned trial judge on page 77, lines 39-45
expressed the view that the failure of the Church to give the Defendant a
hearing and thus depriving him of the chance of defending himself was a breach
of natural justice. With respect, this app</main>