FRANK ODURO vs. GRAPHIC COMMUNICATIONS GROUP LIMITED [2015]DLCA8296

Date	2015-11-03
Suit No.	SUIT NO: H3/593/2015
Citation No.	[2015]DLCA8296

CORAM: M. AGYEMANG (MRS) JA

ANTHONY NONOO FOR APPLICANT

DR. POKU ADUSEI FOR RESPONDENT

[2015]DLCA8296
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													<main id="main" class="content" style="min-height: 60rem" >FRANK ODURO<o:p></o:p>(PLAINTIFF
/ RESPONDENT / RESPONDENT)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p>GRAPHIC COMMUNICATIONS GROUP LIMITED<o:p></o:p>(DEFENDANT
/ APPELLANT / APPLICANT)<o:p></o:p><o:p>&nbsp;</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;
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SUIT NO: H3/593/2015&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; &nbsp; &nbsp; &nbsp;DATE: 3RD NOV, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ANTHONY NONOO FOR APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

DR. POKU ADUSEI FOR
RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>M.
AGYEMANG (MRS) J.A.:-<o:p></o:p>This is a ruling in respect of an application to
stay execution of the judgment of the High Court delivered on 11th
June 2015. The application is supported by an eighteen-paragraph affidavit
sworn to by counsel for the defendant/appellant/applicant (applicant) who
deposed that he had the consent of the applicant to depose to matters within
his knowledge and belief as counsel. <o:p></o:p>The application follows the grant upon terms of a
similar application at the court below. The terms of the said grant were the
following: that fifty percent of the sum due the respondent per the judgment be
paid by the applicant to the respondent and that the remaining fifty percent be
(paid into court and) invested in Government bonds.<o:p></o:p>Dissatisfied with this ruling which per the
applicant amounts to a refusal of their prayer, the present repeat application
has been brought.<o:p></o:p>The matters on which the application is grounded
are the following:<o:p></o:p>The respondent was an employee of the applicant who
held the position of General Manager, Marketing and Public Affairs (now
Director of Marketing) of the applicant. <o:p></o:p>In an investigation involving an alleged breach of
duty following an alleged fraudulent transaction, the respondent was invited to
a disciplinary hearing. Following the findings of the committee set up for this
purpose, the Board of the applicant dismissed the respondent. The respondent as
plaintiff, sued out a writ of summons seeking inter alia, damages for wrongful
dismissal. The trial high court having heard the parties, entered judgment for
the respondent for the recovery of the sum of GHC23,507.27 with interest at the
prevailing bank rate as well as the payment of two years’ net salary in
damages, salaries, allowances, bonuses and other entitlements.<o:p></o:p>It is contended on behalf of the applicant that
there are contentious legal issues that remain to be determined in the appeal
before this court which speak to the success of the appeal. Some of these
issues relate to the fact that although the learned trial judge found that the
respondent was negligent and dishonest, she nevertheless found for respondent
after proclaiming that providence had come to his rescue. Taking issue with this,
learned counsel contends that a judgment of a court must be based on law as supported
by facts and not on ecclesiastical considerations suggested by the use of the
word “providence”.<o:p></o:p>Another such legal issue is the contention that the
judgment of the court below was delivered per
incuriam. In this regard, learned counsel submits that the learned trial
judge did not take into consideration the provisions of Ss. 138 and 200 of the
Companies’ Act, Act 179 when she held that the dismissal of the respondent was
unlawful as it had been done by the Board acting on the findings of a committee
set up by it, rather than its own findings. It is contended further that the
learned trial judge failed to read the entire provisions of Clause 17 of the
applicant’s Management Service Conditions when she purported to apply same to
determine whether the dismissal of the respondent was wrongful, but limited
herself to a portion thereof -17(5).This apparently led her to hold
erroneously, that the respondent’s dismissal had not followed due process which
in turn led to a finding of wrongful dismissal.<o:p></o:p>It has been urged upon this court that the alleged
errors of law led to a judgment so flawed that same constitutes an exceptional
circumstance that should move the hand of the court to grant the present
application.<o:p></o:p>Learned</main>