DAVID MAWUSI AGBELI vs. MERCHANT BANK GHANA LTD. [2014]DLCA6714

Date	2014-07-31
Suit No.	CIVIL APPEAL NO. H1/70/2014
Citation No.	[2014]DLCA6714

S.E. KANYOKE J.A. (PRESIDING)

F.G. KORBIEH J.A.

SAEED K. GYAN J.A.

MR. GEORGE ANKOMA MENSAH FOR PLAINTIFF/APPELLANT

MR. DOMINIC BRENYA OTCHERE FOR DEFENDANT/RESPONDENT

[2014]DLCA6714
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >DAVID MAWUSI AGBELI<o:p></o:p>vs.<o:p></o:p>MERCHANT BANK GHANA LTD.<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">

CIVIL APPEAL NO. H1/70/2014&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: 31ST JULY, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
GEORGE ANKOMA MENSAH FOR PLAINTIFF/APPELLANT <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">

MR.
DOMINIC BRENYA OTCHERE FOR DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;
<o:p></o:p>S.E.
KANYOKE J.A. (PRESIDING), F.G. KORBIEH J.A., SAEED K. GYAN J.A. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<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>F.G.
KORBIEH, J.A. <o:p></o:p>In
order to put this appeal in proper perspective, it is necessary for me to
recapitulate the facts leading to it. The plaintiff/appellant (whom I shall
hereinafter refer to only as the plaintiff) sued the defendant/respondent
(hereinafter referred to only as the defendant or defendant bank or just the
bank) claiming against the latter four reliefs, to wit (a) a declaration that
his dismissal from the bank was unlawful, (b) an order that the bank paid the
whole of his salary and other entitlements due him&nbsp; from January, 2008 to the date of final
payment, (c) general damages for wrongful dismissal and (d) special damages
amounting to GHC80,187.03 per year or GHC6,682.25 per month being loss of
income in alternative employment as a result of the pendency of the allegation
of financial impropriety leveled by the defendants. The plaintiff’s case before
the trial court was that he had been employed by the bank on the 15/8/2005 and
“worked diligently and efficiently till 6th February, 2008, [when] the
Defendant wrote a letter dismissing Plaintiff from its employment.” His case
was that even where he had granted loans in excess of his authority, he had
always sought clearance first from his “next higher authority” or had the act
ratified by his superiors. He further contended that whatever he did accorded
with long standing practice in the bank which had developed into convention. He
therefore contended that it was wrong for the defendant to dismiss him on the
basis of the allegations made against him by the defendant. He was thus
entitled to the reliefs he was claiming against the defendant. The defendant
denied any liability towards the plaintiff and contended in the trial court
that the plaintiff had breached the bank’s rules and regulations which had led
the bank to take action against him “in line with its policy”. It argued that
despite the credit policy of the bank, the plaintiff had, on numerous occasions
granted loans in excess of his limitation and thus contributed to the bank’s
liquidity problems. According to the bank, this amounted to misconduct on the
part of the plaintiff hence his dismissal from the employment of the bank. <o:p></o:p>After
a full trial the trial court gave judgment against the plaintiff and threw out
all his claims. The learned trial judge found as an uncontested fact that the
plaintiff granted loans in excess of his authority. He again found as a fact
that the plaintiff’s actions in seeking the approval of the managing director
before granting these excess loans did not accord with the defendant’s credit
policy since the managing director qua managing director was not an approving
authority. He therefore held that the plaintiff’s actions amounted to
misconduct. He thus held that the plaintiff had not been dismissed wrongfully.
He also held that given the circumstances of the situation the signing of the
plaintiff’s dismissal by persons other than the managing director, was not
unlawful hence the dismissal letter was not invalid. It is this judgment that
the plaintiff has appealed against on the following grounds: <o:p></o:p>(a)
The trial judge erred when he held that the office of the managing director was
not an approving authority under the credit policy and therefore the evidence
of the plaintiff’s approvals for disbursement by the managing director was
wrongful; <o:p></o:p>(b)
The trial judge’s holding that the excess loans approved by the plaintiff were
not applied exceptionally or sparingly was wrongful since there was no
statistical evidence on record showing the frequency of excess loans over
plaintiff’s limit; <o:p></o:p>(c)
The judgment was against the weight of the evidence adduced at the trial; <o:p></o:p>(d)
The trial court erred when, after finding that most of the loans had been
ratified either by the credit committee or the board, it still held that those
loans were still approved without authority; <o:p></o:p>(e)
The trial court misapplied and misunderstood the concept of ratification
thereby leading to a mistaken conclusion that even loans that had been ratified
amounted to misconduct on the part of the plaintiff and were still unlawful
and/or against the credit policy and practice of the defendant bank;<o:p></o:p>(f)
The court misconstrued the evidence of PW1 when it concluded that PW1 admitted
that the plaintiff’s actions brought liquidity problems to the bank; <o:p></o:p>(g)
The trial court’s failure to treat the granting of loans above the policy limit
as a discretion created the false impression that the plaintiff’s conduct was
mischievous and amounted to misconduct; <o:p></o:p>(h)
The trial court ignored the many incidents of loans granted above the limits
before, during and even after the dismissal of the plaintiff and therefore
could not make a valid finding on the practice as a convention in the bank; <o:p></o:p>(i)
The court’s misinterpretation of section 40 of the Rules and Conditions of
Service&nbsp; which exclusively empowered the
managing director’s office as the only office competent to dismiss the
plaintiff led to the trial judge’s wrongful conclusion that the plaintiff’s
dismissal was justified; <o:p></o:p>(j)
The conclusion of the trial court on excess loans without finding out whether
or not strong business rational behind the grant was a misinterpretation of the
discretionary clause 2.3.1 and 2.3.2 of the </main>