JUSTICE AWUKU-SAO vs. GHANA SUPPLY COMPANY LTD [2009]DLSC2498

Date	2009-03-11
Suit No.	CIVIL APPEAL J4/15/2008
Citation No.	[2009]DLSC2498

BROBBEY J.S.C. (PRESIDING

ANSAH J.S.C

ADINYIRA J.S.C

DOTSE J.S.C.

ANIN YEBOAH J.S.C.

PETER ZWENES FOR THE APPELLANT.

S. K. AMOAH FOR THE RESPONDENT.

[2009]DLSC2498
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													<main id="main" class="content" style="min-height: 60rem" >JUSTICE AWUKU-SAO<o:p></o:p>vs.<o:p></o:p>GHANA SUPPLY COMPANY
LTD<o:p></o:p>[SUPREME
COURT]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL J4/15/2008&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 11TH MARCH,2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>PETER ZWENES FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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S. K. AMOAH FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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BROBBEY, J.S.C.
(PRESIDING), ANSAH, J.S.C., ADINYIRA, J.S.C., DOTSE, J.S.C., ANIN YEBOAH,
J.S.C.<o:p></o:p>

</div>JUDGMENT<o:p></o:p>ADINYIRA (MRS), J.S.C:-<o:p></o:p>This is an appeal against
the judgment of the Court of Appeal dated 4 February 2005 affirming an earlier
judgment of the High Court Accra dated 1 March 2004 dismissing the action of
the plaintiff/appellant ( hereinafter plaintiff.) The grounds of appeal are:<o:p></o:p>1. The Court of Appeal erred in
upholding the finding made by the learned trial judge that the comments
submitted by the Plaintiff on the Interim Audit Report constituted a hearing
and an opportunity to present his side of the case. The failure by the Court of
Appeal to set aside that wrongful finding has occasioned the Plaintiff a grave
miscarriage of justice.<o:p></o:p>2. The Court of Appeal fell into grave
error in upholding the judgment of the trial court which judgment was totally
against the weight of the evidence adduced at the trial having regard
particularly to the unproven allegations of misconduct levelled against the
Plaintiff and the trial courts own finding amongst others that the Final Audit
Report on the basis of which the Plaintiff was summarily dismissed itself
contained several errors. <o:p></o:p>3. The Court of Appeal erred when it
reached the wrongful and untenable conclusion that having regard to the
conflict between Exhibit 'F' the Conditions of Service for Senior Staff and
Exhibit' A' the Plaintiffs Letter of Appointment it was not envisaged that the
Plaintiff could be covered by the disciplinary procedures set out in Exhibit
'F'. On the contrary the Court of Appeal ought to have held that the mere
absence of any disciplinary procedures in the plaintiff’s letter of appointment
did not in any way relieve the defendant Board Of Directors which exercised
final disciplinary authority over the plaintiff of their duty to comply with
the very procedures the defendant had itself spelt out in Exhibit ‘F’ for its
employees in conformity with the rules of natural justice.<o:p></o:p>4. The Court of Appeal erred in
upholding the finding of the learned trial judge that the defendant was not
liable for damages for defamation.”<o:p></o:p>FACTS OF THE CASE<o:p></o:p>The plaintiff has been in
the service of the Defendant/respondent (hereinafter defendant) for 13 years
prior to his appointment as the Managing Director on 1 September 2001 for a
term of 5 years.&nbsp; He was asked to proceed
on his accrued leave in December2002.&nbsp;
While on his extended leave, the Board of Directors requested, the
Auditor General to undertake a forensic audit and management review of the operations
of the company. According to the plaintiff the audit exercise was carried on
without any questions or explanation sought from him by the auditors.&nbsp; He was summarily dismissed by a letter dated
17 June 2003 for stated misconduct based on adverse findings against him in the
Audit Report. Additionally the defendant circulated the Audit Report to the
media which published same and made adverse comments which were defamatory and
thereby injured his reputation. He therefore instituted this action at the High
Court Accra claiming:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp; A declaration that in all the
circumstances of the case the plaintiff’s dismissal was wrongful and unlawful;<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp; An order that the plaintiff be paid all
entitlements and earnings for the unexpired two and one-half years of the
contract term of five years<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp; A declaration that in all general damages
for defamation following the publication of the alleged findings in the
electronic and print media; <o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp; An order to the Defendant Company to
retract the defamatory publications in the electronic and print media; <o:p></o:p>5.&nbsp;&nbsp;&nbsp;&nbsp; Punitive and exemplary costs.<o:p></o:p><o:p>&nbsp;</o:p>PARTICULARS OF WRONGFUL
DISMISSAL<o:p></o:p>&nbsp;“Paragraph 18 of statement of claim:<o:p></o:p>“The Plaintiff says that
the Defendant Company did not follow proper procedure in dismissing the
Plaintiff in that the Defendant Company as employer of the Plaintiff did not
raise any query on the alleged misconduct of the Plaintiff to allow the
Plaintiff to be heard in his defence on the alleged misconduct by the Forensic
Audit team for the reasons given below: <o:p></o:p>(a)&nbsp;&nbsp;&nbsp;&nbsp;
The Plaintiff was only asked by the Defendant Company to comment on a
report, which had been finalised without any input by the Plaintiff; <o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;
The Plaintiff only carried out approval policies, plans and programs of
the Board of Directors in respect of the Home Ownership Scheme, and related
matters in accordance with the schedule of duties given him by the Defendant
Company at the time of his employment; <o:p></o:p>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Defendant Company had not by itself
on its own at anytime prior to the issuance of the letter of 17th June 2003
conducted any disciplinary proceedings which resulted in the decision to
dismiss the Plaintiff summarily<o:p></o:p></main>