CHARLES YAW FUGAH vs. COCOA MARKETING COMPANY [2011]DLCA6684

Date	2011-01-27
Suit No.	SUIT NO.HI/188/10 A.D.
Citation No.	[2011]DLCA6684

APPAU J.A. (Presiding)

DUOSE J.A.

OFOE J.A.

MR. D. A. OTOO FOR PLAINTIFF/APPELLANT

JOHANES VERGBA FOR DEFENDANT/RESPONDENT

[2011]DLCA6684
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													<main id="main" class="content" style="min-height: 60rem" >CHARLES YAW FUGAH<o:p></o:p>vs.<o:p></o:p>COCOA MARKETING COMPANY<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

SUIT NO.HI/188/10 A.D.&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: 27TH
JANUARY 2011<o:p></o:p>

JOHANES
VERGBA FOR DEFENDANT/RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>OFOE, J.A <o:p></o:p>I
will refer to the plaintiff/appellant and defendant/respondent as plaintiff and
defendant respectively as they were in the trial court.&nbsp; The defendant Company was occasioning losses
arising out of short weight of Cocoa exported to its customers.&nbsp; Upon arrival of the Cocoa at the destination
port of the customers, the Cocoa bags were found to be short weighted.&nbsp; The buyers therefore surcharged the
defendants for these short weights.&nbsp; The
defendant decided to investigate these losses and after thorough investigation
by two committees a recommendation was made for the termination of certain
staff including the Plaintiff.&nbsp; The
recommendation was carried out and the Plaintiff's appointment was terminated.
Aggrieved at the termination the Plaintiff sued the defendant claiming <o:p></o:p>(a)
A declaration that the termination or purported termination of Plaintiff's
employment is unlawful and null and void. <o:p></o:p>(b)
An order restating the Plaintiff. <o:p></o:p>(c)
Further or in the alternative damages for wrongful termination of appointment."
<o:p></o:p>By
the pleadings of the parties the main issue for trial was whether the defendant
complied with its Collective Bargaining Agreement giving the plaintiff the
opportunity to defend himself before his appointment was terminated.&nbsp; Indeed it was the substance of the issues for
trial set by the trial Court.&nbsp; It needs
to be mentioned that the defendants counter claimed, although not set as part
of the issues for trial, and introduced the issue whether the plaintiff should
be liable to a total cost of 1075 bags of cocoa beans lost to the defendant. <o:p></o:p>The
trial judge dismissed the whole of Plaintiffs claims and dismissed the
counterclaim as well.&nbsp; It is against this
dismissal that the plaintiff is aggrieved and has appealed to this court
praying that we set aside the trial judgment and enter judgment in his
favour.&nbsp; He has two grounds of
appeal.&nbsp; That <o:p></o:p>"(a)&nbsp; The judgment is against the weight of
evidence. <o:p></o:p>(b) The learned trial judge erred in
holding that he plaintiff’s employment was terminated in accordance with this
contract of service." <o:p></o:p>In
his written submission Counsel for the plaintiff decided to argue both grounds
of appeal together.&nbsp; I think this
decision is in order.&nbsp; The substance of
his submissions was that there was no evidence proving beyond reasonable doubt,
as demanded by the Article 15(a)(i)and(ii) and (c) that the defendant had
committed the offence of dishonesty, by deliberately receiving short weighted
cocoa in stock.&nbsp; It is his case that this
same article was breached when the defendant failed to give the plaintiff the
opportunity to defend himself before the termination.&nbsp; For these submissions he relied on the
authorities of Republic Vrs. High Court, Kumasi Ex-parte Mobil Oil (Ghana)
Limited; Hagan (Interested Party) (2005-2006) SCGLR 312, Kobea V Tema Oil
Refinery (2003-2004) 2 SCGLR 1022 at 1048. <o:p></o:p>Counsel
for the defendant holds a contrary view.&nbsp;
To him the plaintiff has a wrong interpretation of these Article
15(a)(i),(ii) and (b).&nbsp; It is his
submission that there was sufficient evidence in prove of the guilt of the
plaintiff beyond reasonable doubt.&nbsp; The
plaintiff admitted that his Block B received cocoa that were short weighted and
shipped.&nbsp; Asked whether he had any
explanation to this lapse he said none.&nbsp;
Counsel submitted further that the plaintiff's admission that his team
failed to refuse or omitted to reject cocoa that was short weight is clear
evidence of the plaintiff and colleague's dishonesty, incompetence or
negligence.&nbsp; These acts are clear
violation of article 15 (c) (iii).&nbsp; This
admission, counsel submitted, was also made by six of plaintiff’s colleagues
who appeared before the committee and none had any excuse for the short weight.
<o:p></o:p>In
respect of the plaintiff's claim that he was not given the opportunity to
defend himself whether orally or in writing, it is counsels submission that to
accord the suspect full privilege of defense either orally or in writing means
nothing than to give the suspect, in this case the plaintiff, the opportunity
to defend himself either orally or in writing.&nbsp;
There isn't the need to prove that the plaintiff was heard by any
committee or even given a query.&nbsp;
Counsel's interpretation of Article 15(a) (i) bears quoting.&nbsp;&nbsp; At page 5 of his submission he stated: <o:p></o:p>1)
A critical look at Article 15(a) (ii) shows that it made provision for the
worker to be accorded full privilege of defense either orally or in
writing.&nbsp; To accord means to give an
opportunity to or to grant authority to somebody to do something.&nbsp; It does not mean you should force the person
to do what you have granted authority to the person to do.&nbsp; Therefore in discharging the burden laid on
the Defendant Company by Article 15(a) (i) the defendant need not prove that
the plaintiff was heard by any committee or even given a query.&nbsp; All the defendant company was obliged to do
was to give the plaintiff the opportunity to defend himself either orally or in
writing". <o:p></o:p>Counsel
continued on page 6 <o:p></o:p></p</main>