IN THE HIGH COURT OF JUSTICE, HELD IN SOGAKOPE ON MONDAY THE 31ST

DAY OF OCTOBER, 2022 BEFORE HER LADYSHIP JUSTICE DOREEN G. BOAKYE-

AGYEI (MRS.) JUSTICE OF THE HIGH COURT

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SUIT NO: E13/89/2020

GEORGE GAMELI AGOZIE = PLAINTIFF

-VRS-

ANLO RURAL BANK = DEFENDANT

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PARTIES:

PLAINTIFF PRESENT

DEFENDANT REPRESENTED BY SYLVESTER A BEDZRAH

COUNSEL:

MR. SENANU AFAGBE, ESQ., COUNSEL FOR PLAINTIFF - PRESENT

MR. GIDEON DELALI DEKLU, ESQ., COUNSEL FOR DEFENDANT -

PRESENT

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INTRODUCTION

JUDGMENT

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By a Writ of Summons and Statement of Claim filed on 27th April, 2020 the Plaintiff

commenced this action against the Defendant herein for the following reliefs:

a. "Declaration that the sanction imposed on the Plaintiff by the Defendant on 20th

May, 2019 was wrongful.

b. A declaration that the Plaintiff's summary dismissal by the Defendant is wrongful.

c. A declaration that the Defendant's decision to punish Plaintiff twice for the same

alleged offence is wrongful.

d. General damages for wrongful dismissal.

e. An order directed at the Defendant to pay all the Plaintiff's entitlements such as

salary, arrears and allowances from 20th May, 2019 till the date of final judgment.

f. An order for interest on the above-mentioned entitlements at the prevailing

commercial rate till the date of final payment.

g. General damages for the psychological pain and anguish Plaintiff suffered due to

his demotion, reduction in salary and summary dismissal.

h. Cost including legal fees."

The Defendant is a banking institution incorporated under the laws of Ghana and

regulated by the ARB Apex Bank Limited and a member of the Association of Rural

Banks Ghana. Plaintiff is a former staff of Defendant.

PLAINTIFF'S CASE

It is the case of the Plaintiff that prior to his purported summary dismissal he was the

Operations Manager and a Senior Management Staff who was later demoted to the grade

of Senior Officer 2 of the Defendant bank. The Plaintiff was employed by the Defendant

Bank in a letter dated 22nd December 2009 and claims to have diligently and faithfully

worked for the Defendant Bank for (ten) 10 years. The terms and conditions of service

with the Defendant Bank was governed by the Human Resource Policy and Procedure

Manual of the Defendant Bank and the Conditions of Service for Senior Staff of

Rural/Community Banks.
~2~
The Plaintiff’s case is again that on 16th April 2018, a customer of the Defendant Bank that

is Makolives Ventures a business run by Mr. Makafui Kofi Woanyah issued cheque

#000525 with the face value of GHC96,735.60 to Royal Energy Company Limited which

was honoured by the Defendant Bank. The Plaintiff says that on 12th July 2018, the

customer again issued another cheque #000546 with face value of GH122,032.50 to Royal

Energy Company Limited which was also honoured by the Defendant Bank. It is the case

of the Plaintiff that due to system failures and technical errors at the Defendant Bank, the

cheques were not debited to the account of the customer.

According to Plaintiff, in February 2019 the Plaintiff realized after reconciliation exercise

that cheque #000525 had not been debited to the account of the customer. In March 2019

he again discovered that the customer's second cheque #000546 which was issued and

honoured was also not debited to the customer's account. It is the case of the Plaintiff that

he quickly drew the customer's attention to the errors detected and furnished the images

of the cheques to the customer and instructed the Head of Finance to debit the customer's

account. The customer however requested to do a reconciliation on his accounts and as a

result of same the debit of cheque #000525 was reversed pending reconciliation by the

customer. The Plaintiff says that the Defendant Bank in an attempt to amicably resolve

the matter, invited the customer to a meeting, but the said meeting could not come on

thus the customer's account was subsequently debited with the two cheques numbered

#000525 and #000546. The Plaintiff says that the Defendant Bank called a Board meeting

with him in attendance and as the meeting progressed the Plaintiff was requested by

other attendees of the meeting to excuse them which he duly complied with and after

some few minutes Plaintiff was called back into the meeting.

~3~
The Plaintiff states that when he rejoined the meeting he was informed that the Board

had decided to demote him two (2) steps down from the position of Operations Manager

to Senior Officer 2 with reduced salary. The Plaintiff says that the Defendant bank

subsequently wrote a letter dated 20th May, 2019 and entitled "Disciplinary Sanctions:

Makolives Ventures Cheque Numbers 000525 & 000546" informing Plaintiff of purported

disciplinary sanctions taken against him for gross negligence leading to loss of GHC

218,786.10 to the Defendant bank. The Plaintiff says that in the letter various sanctions

were meted out to him including suspension for two weeks without salary, demotion of

two steps to the grade of Senior Officer 2 with reduced salary and removal from the

position of Operations Manager to a different role. The Plaintiff contends that he

performed his duties diligently as expected of him and was not engaged in any act(s) of

negligence and that the allegation of gross negligence levelled against him is completely

unfounded.

Plaintiff also states that he was not even indicted for the offence of gross negligence before

he was sanctioned by the Defendant Bank. The Plaintiff contends that no disciplinary

hearing was conducted by the Defendant Bank to ascertain his culpability in the cheque

matter and that Plaintiff was not even given any opportunity to defend himself before he

was sanctioned by the Defendant Bank. The Plaintiff further contends that the

disciplinary sanctions imposed on him were wrongful since same were in contravention

of the principle of fair hearing and Chapter 28 (2) and (3) of the Human Resoure Policy

and Procedure Manual of the Defendant Bank.

The Plaintiff also says that the Defendant bank later instituted an action against the

customer Mr. Makafui Kofi Woanyah at the High Court, Sogakope seeking for the

recovery of the amount the Defendant Bank claimed it had lost. The Plaintiff then says

~4~
that despite the unwarranted sanctions imposed on him, he was compelled to sign a

Witness Statement in support of the Defendant Bank's case at the High Court, Sogakope

with the threat that if he failed to cooperate with the efforts to recover the debt on the

account of the customer he shall be subject to dismissal. The Plaintiff says that on 3 rd of

March 2020 the General Manager of the Defendant Bank invited the Plaintiff in the

presence of the Risk Manager, the Internal Auditor and the Secretary/Administrator and

showed to him a copy of a cheque issued by Donewell Insurance Co. Ltd which cheque

is an insurance claim /payment for the alleged financial loss the Defendant Bank claimed

it suffered in respect of which the Defendant Bank instituted action against the customer

at the High Court, Sogakope. That this insurance claim/payment was never disclosed to

the Plaintiff.

The Plaintiff says that he asked the General Manager why he failed to inform him that

the Defendant Bank had received insurance claim/payment from Donewell Insurance

Company Limited and the General Manager said that he could not have told Plaintiff.

The Plaintiff says that the Defendant Bank alleged that the customer used the cheque

from the Donewell Insurance Company Limited as an exhibit in the proceedings at the

High Court, Sogakope.

It is the further case of the Plaintiff that the Defendant bank wrote a letter dated 23 rd

March, 2020 inviting Plaintiff to a disciplinary hearing scheduled for Tuesday, 24th March,

2020 in connection with the alleged leakage of the copy of the cheque issued to the

Defendant Bank by Donewell Insurance Co. Ltd. Plaintiff says that the meeting did not

come on because the Plaintiff received the invitation letter at a very short notice which

prompted the Defendant to re-schedule the meeting to Friday, 27th March, 2020. The

Plaintiff says that on Friday 27th March, 2020 Plaintiff and his witness met the disciplinary

committee and at the meeting a CCTV footage was shown to the Plaintiff and he was

asked to confirm whether he was the one shown in the CCTV footage and Plaintiff
~5~
confirmed he was the one shown in the CCTV footage photocopying a sticker and the

meeting ended.

The Plaintiff contends that the Defendant Bank adduced absolutely no evidence to link

the Plaintiff to the alleged leakage of the cheque issued by Donewell Insurance Company

Limited and that the said allegation remained unsubstantiated till date. It is the case of

the Plaintiff that at the disciplinary hearing/meeting there was no discussion about the

cheques #000525 and #000546 issued by the customer of the Defendant Bank since that

matter was closed and the Plaintiff was purportedly sanctioned for his alleged negligence

in same.

The Plaintiff says that surprisingly the Plaintiff was issued with a letter dated 31st March,

2020 entitled "Summary Dismissal" which purportedly summarily dismissed Plaintiff for

gross misconduct on the grounds of dishonesty and insubordination, gross negligence

and commission of acts leading to serious financial loss to the Bank (Defendant) among

others. The Plaintiff contends that the alleged offences listed in the summary dismissal

letter are unfounded since Plaintiff was not engaged in any of such offences. The Plaintiff

contends that he knew absolutely nothing about the cheque issued by Donewell

Insurance Company Limited and that he played no role in its alleged leakage until a copy

of same was shown to the Plaintiff by the General Manager of the Defendant Bank and

that he cannot be held liable for breaching the Oath of Confidentiality and the Data

Protection Act, 2012 (Act 843). Also that the Defendant Bank's reliance on Act 843 is

misconceived since same is inapplicable.

The Plaintiff contends that the Defendant Bank's erroneous reliance on Section B (2) (f) of

the Common Offences and Proposed sanctions by Bank of Ghana which deals with

suppression of cheques to summarily dismiss Plaintiff is completely untenable and

~6~
misconceived since Plaintiff was not engaged in any act(s) of suppression of cheques nor

accused of or found liable for same and that suppression of cheques was not even part of

the allegations levelled against Plaintiff. The Plaintiff again contends that his purported

summary dismissal was wrongful since he had already been sanctioned for the very

alleged offence of gross negligence and financial loss the Defendant Bank claimed it

suffered and that Plaintiff cannot be punished twice for the same alleged offence.

The Plaintiff further contends his purported summary dismissal is in contravention with

Chapter 28 (2), (3) and (4) of the HR Policy and Procedure Manual of the Defendant Bank.

The Plaintiff again contends that the Defendant Bank rather acted in bad faith since it had

already received an insurance claim/payment from Donewell Insurance Company

Limited in respect of the very alleged financial loss the Defendant claimed it suffered and

still purportedly sanctioned and summarily dismissed Plaintiff and further took action

against the customer at the High Court, Sogakope for the recovery of the said financial

loss.

The Plaintiff says that due to his diligent and faithful performance at the Defendant bank

he rose through the ranks up to the point of Operations Manager and even acted as

General Manager before he was wrongfully dismissed. Even though he was queried just

like any other employee of the Defendant's bank same was not in respect of any

fraudulent, collusive and negligent acts. The Plaintiff says that he was informed by the

General Manager that he debited the account of the customer and later reversed it. The

Plaintiff says that he fully cooperated with the Defendant bank in the recovery efforts and

even signed a witness statement in the suit between the Defendant and the customer, but

Plaintiff denies that the legal proceeding against the customer is due to any misconduct

on his part.

~7~
The Plaintiff says that he has never made photocopies of any cheque and says the

disciplinary actions taken against him were unwarranted and wrongful. The Plaintiff

says that he tendered in his resignation letter because he was demoralized and suffered

psychological anguish due to the unfair treatment meted out to him by the Defendant

bank. It is the case of the Plaintiff that he was unfairly treated, demoralized and suffered

psychological anguish for his earlier demotion, 'reduction in salary, re-assignment and

his subsequent summary dismissal without any regards to his rights and due process

hence this suit.

DEFENDANT'S CASE

In its Amended Statement of Defence filed on 11th January 2021, the Defendant denied

the Plaintiff was entitled to any of its reliefs and justified the disciplinary action against

the Plaintiff. It pleaded that although Plaintiff worked with it for 10 years, the Plaintiff on

countless occasions was involved in similar fraudulent and collusive acts and utter

negligent conducts that have resulted in losses to the Defendant and has consistently been

the subject of queries, investigations and disciplinary actions in the Bank. On the reason

for the failure to debit cheque number 000525 with the face value of GHC 96,735.60 issued

on 16th April 2018 and cheque number 000546 with face value of GHC 122,032.50 issued

on 12th July 2018, the Defendant vehemently denied that the reason was due to any

alleged system failures or technical errors and stated that the failure to debit the account

of the customer was deliberate or intentional and a suppression of the payment that was

discovered through its timely reconciliation exercise and diligence.

Defendant further stated that it was the Plaintiff's schedule to ensure that the customer's

account was debited upon payment of cheques but he deliberately concealed and

suppressed the cheques until it was unraveled through audit and upon discovery,

Plaintiff grudgingly instructed the Finance Department of the Defendant to debit the

account.
~8~
On the allegation of reversal of the debit, the Defendant pleaded that the Plaintiff had no

authority to instruct a reversal of the debits and same constituted grievous misconduct

contrary to the guidelines, directives and procedures specified in the Defendant's Human

Resource Policy and Procedure Manual as well as the Bank of Ghana directives to Rural

and Community Banks on Common Offences and Proposed Sanctions. That when the

Plaintiff clandestinely reversed the debits, he failed and or refused to subsequently report

the reversal to his immediate supervisor, the General Manager until same was again

discovered.

Defendant pleaded that apart from disciplinary sanctions, the Plaintiff was required to

fully cooperate with the Defendant in its efforts to recover the debt and emphasized that

the that misconduct of the Plaintiff is the cause of the legal proceedings against the

customer and that the Plaintiff, if he were a faithful and diligent servant, should have

eagerly and genuinely cooperated with the Defendant in its recovery efforts.

On the payment from Donewell Insurance Co Ltd, the Defendant pleaded that the

payment was in respect of a Fidelity Insurance Policy for the loss or potential loss

resulting from the fraudulent acts of its employees including the Plaintiff but not in

satisfaction of the debt owed by customer Makafui Kofi Woanyah, for which the

Defendant had instituted an action against him. Defendant contended that a fidelity

insurance policy is an indemnity policy and as such Defendant had a responsibility to

pursue and recover the loss or potential loss from the perpetrator(s) of the fraudulent act

and or the liable person(s), which it was doing.

On leakage of the Donewell Insurance Co Ltd payment to the customer Makolives to use

as an exhibit in the debt recovery action, the Defendant denied the claim of Plaintiff that

he was photocopying a sticker. Defendant averred that during the disciplinary hearings,
~9~
the Defendant flatly denied ever being on the premises on the relevant days until he was

confronted with the CCTV footages that captured him photocopying Defendant's

cheques and documents. Its investigation further found that on 19th February 2020, the

Plaintiff at very odd hours sneaked into the office of the Defendant where the cheque was

filed and in the absence of the occupants of the office hurriedly made photocopies of the

cheque. Defendant then averred that it was the Plaintiff and no other person that leaked

the Defendant's cheque from Donewell Insurance Co Ltd to the customer and ostensibly

claiming same to be the payment of the customer's debt. That shortly after leaking the

cheque, the Plaintiff tendered his resignation from Defendant employment without

stating how he was going to cooperate with the Defendant to recover the debt that he

caused.

Defendant then pleaded that the Plaintiff acted in collusion with the customer which said

collusion makes Plaintiff unfit to continue in the employment of the Defendant.

Defendant particularized the collusion to include suppression of the cheques,

unauthorized reversal of debit of cheques and failure to report, non-co-operation in

recovery suit against customer Makolives, leaking Donewell Insurance Co Ltd cheque to

customer and the tender of resignation.

ISSUES FOR TRIAL

At the close of pleadings, the Honorable Court set down the issues filed by the Plaintiff

and for which the Defendant did not file additional issues. The following issues were set

down as the issues for determination.

1. Whether or not the sanction imposed on the Plaintiff by the Defendant bank on 20th May,

2019 was wrongful.

2. Whether or not the Plaintiff's summary dismissal was wrongful.

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 3. Whether or not the Defendant's decision to punish Plaintiff twice for the same

offence is wrongful.

4. Whether or not disciplinary actions taken against Plaintiff were in accordance with

the Defendant bank's policy and procedures.

5. Whether or not the Defendant bank's inability to debit the customer Makafui Kofi

Wonyah's account was due to system failures and technical errors at the Defendant's Bank.

6. Whether or not Plaintiff has involved in any fraudulent and negligent acts that

resulted in losses to the Defendant bank.

7. Whether or not Plaintiff was involved in any acts of collusion with the Defendant bank's

customer Makafui Kofi Woanyah.

8. Whether or not Plaintiff leaked Donewell Insurance Co. Ltd. payment to Defendant Bank's

customer Makafui Kofi Woanyah.

9. Whether or not Plaintiff is entitled to his reliefs.

10. Any other issue(s) raised by the pleadings.

Despite the several issues set down for trial in this suit, the dispute revolves around the

question whether the Defendant Bank in dismissing the Plaintiff for what in their view

was his misconduct in the issues relating to Plaintiff's alleged failure to debit a customer

of the Bank after payment of cheques was wrongful or not.

BURDEN OF PROOF

Sections 10, 11(4), 12, 14 and 17 of the Evidence Act, 1975 (NRCD 323) specifies the

relevant evidential rules for civil litigation. The requirement is that the party who alleges

has the burden of proof and unless otherwise stated, the burden of producing evidence

of a fact is initially on the party alleging. The burden of persuasion means the obligation

of a party to establish a requisite degree of belief concerning a fact in the mind of the

tribunal of fact or the court per Section 10(1) of the Evidence Act, 1971 (Act 323).
~ 11 ~
The general rule on proof in law is that he who avers must prove. Where a party to a civil

suit raises issues that are essential to the success of his claim, the general rule is to the

effect that he assumes the onus of proof, whether it is the plaintiff who asserts a fact or

the defendant who makes a counterclaim. Section 11 (1) of the Evidence Act, 1971 (Act

323) provides that" ... the burden of producing evidence means the obligation of a party

to introduce sufficient evidence to avoid a ruling against him on the issue". Section 11(4)

of the Evidence Act, 1975 (Act 323) also states that “…the burden of producing evidence

requires a party to produce sufficient evidence so that on all the evidence a reasonable

mind could conclude that the existence of the fact was more probable than its non-

existence"

In the case of MAJOLAGBE V. LARBI & OTHERS (1959) GLR 190-195 at 192, Ollenu J.

quoting his earlier judgment in the unreported case of Khoury and Another v. Richter

(1958) delivered himself thus: "Proof in law is the establishment of facts by proper legal means.

Where a party makes an averment capable of proof in some positive way, e.g. by producing

documents, description of things, reference to other facts, instances, or circumstances, and his

averment is denied, he does not prove it by merely going into the witness-box and repeating that

averment on oath, or having it repeated on oath by his witness. He proves it by producing other

evidence of facts and circumstances, from which the court can be satisfied that what he avers is

true."

Kpegah J. A (as he then was) in the case of ZABRAMA vs. SEGBEDZI (1991) 2 GLR 221

at 246 states the position on proof in law to be:.... a person who makes an averment or

assertion, which is denied by his opponent, has the burden to establish that his averment or

assertion is true. And, he does not discharge this burden unless he leads admissible and credible

evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of

each averment or assertion determines the degree and nature of that burden".

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To proof a fact, there is more to it than merely rehashing an allegation either by the party

himself/herself or his/her witnesses on oath. See the case of KLAH VRS PHOENIX

INSURANCE CO LTD [2012] 2 SCGLR 1139. The party alleging an issue must produce

sufficient evidence of facts, which on the whole, leads to the reasonable inference of the

existence or non-existence of the fact alleged. This is the import of section 10(1), (2), and

section 11(1), (4) of the Evidence Act, which the Supreme Court in ACKAH VRS

PERGAH TRANSPORT LTD [2010] SCGLR 728 at 736 provided clarity to as follows: It

is a basic principle of law on evidence that a party who bears the burden of proof is to produce the

required evidence of the facts in issue that has the quality of credibility short of which his claim

may fail... It is trite law that matters that are capable of proof must be proved by producing

sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence

of the fact is more reasonable than its non-existence”.

The standard or requisite degree of proof in civil cases is on the preponderance of

probabilities and this position of the law can be found in Section12 (1) of the Evidence

Act, 1975 (Act 323) which provides that "except as otherwise provided by law, the burden

of persuasion requires proof by a preponderance of probabilities"

Section 12(2) of the Evidence Act, 1975 (Act 323) explains: "Preponderance of the

probabilities means that degree of certainty of belief in the mind of the tribunal of facts

or the court by which it is convinced that the existence of a fact is more probable than its

non-existence"

The foregoing is summed up in the Supreme Court case of GIHOC V. HANNAH ASSI

[2005-2006] SCGLR458 AT 485, where, while referencing the cases of ODAMETEY V.

CLOCUH [1989-90] 1 GLR, 14; ODONKOR V. AMARTEI [1993-94] GBR 59, TUAKWA

V. BOSOM [2001-2002] SCGLR 61, Sophia Akuffo, JSC (as she then was) in her

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judgment stated thus: "Since the enactment of NRCD 323, therefore except otherwise specified

by statute, the standard of proof (the burden of persuasion) in all civil matters is by a

preponderance of probabilities based on a determination of whether or not the party with the

burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the

probable existence of the fact in issue.... Hence, by virtue of the provisions of NRCD 323, in all

civil cases, judgment might be given in favour of a party on the preponderance of the probabilities".

The pleadings of the parties to a suit determine who bears the burden of proof. In BANK

OF WEST AFRICA LTD V. ACKUN [1963]1 GLR 176-182, the Court held that the onus

of proof in civil cases depends upon the pleadings and the party who in his pleadings

raises an issue essential to the success of his case assumes the burden of proof. Section 14

of the Evidence Act, 1975 (Act 323) provides that "..unless and until it is shifted a party

has the burden of persuasion as to each fact the existence or non- existence of which is

essential to the claim or defence he is asserting".

Also the court held in the case of FAIBI V. STATE HOTELS CORPORATION [1968]

GLR 471-480 that ".. the onus in law lay upon the party who would lose if no evidence was led

in the case; and where some evidence had been led it lay on the party who would lose if no further

evidence was led". The obligation was therefore on the party making a claim to establish a requisite

degree of belief concerning a fact contained in the pleadings in the mind of the court”.

Because this a Labour related case, reference is made to the recently decided case of ALEX

ONUMAH COLEMAN & ANOR VRS NEWMONT GHANA GOLD, CIVIL APPEAL NO.

J4/67/2019, delivered on 10 March 2021, where the Supreme Court laid down the burden

of proof in claims of wrongful termination of employment as follows: "Indeed, the issue in

this case is whether or not the termination of the appellants' appointment was wrongful and illegal

and whether or not the appellants were entitled to their claims. The law is that this action being

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an action for damages for wrongful dismissal, each appellant assumed the burden of proving the

terms of his employment that the determination was in breach of the terms of the agreement, or in

contravention of statutory provisions for the time being regulating the employment. In KOBI V

MANGANESE CO. LTD. [2007-2008] SCGLR 771 at 786, this court after citing with approval

MORGAN V PARKNSON HOWARD LTD. [1961] GLR 68 at 70, held that the action being

an action for damages for wrongful dismissal, each plaintiff assumed the burden of proving the

terms of his employment; that the determination was in breach of the terms of agreement and in

contravention of statutory provisions for the time being regulating to employment. See also

ODURO V GRAPHIC COMMUNICATIONS GROUP LTD. [2017-2018] 2 SCGLR 112

HOLDING (2). This Court further held that if a plaintiff failed to satisfy the Court on these points,

his or her claim cannot succeed."

From the above, the Plaintiff having alleged that the Defendant Bank wrongfully

terminated his employment he bore the burden of proving that his dismissal was contrary

to the Human Resources Policy and Manual of the Bank, the Conditions of Service of the

Association of Rural and Community Banks and the Common Offences and Proposed

Sanctions by the Bank of Ghana.

ANALYSIS

Issues (1): Whether or not the sanction imposed on the Plaintiff by the Defendant bank

on 20th May 2019 was wrongful. Issue (2): Whether or not the Plaintiff's summary

dismissal was wrongful. Issue (3): Whether or not the Defendant's decision to punish

Plaintiff twice for the same offence is wrongful. Issue (4): Whether or not disciplinary

actions taken against Plaintiff were in accordance with the Defendant Bank's policy and

procedures.

Issues 1 to 4 in the opinion of the Court, all relate to whether the dismissal of the Plaintiff

from the employment of the Defendant was wrongful or otherwise.

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It is the case of the Plaintiff that having been wrongly accused of negligence, which was

not attributable to him in any way and the Plaintiff like any employee in his situation will

do, who was afraid of losing his means of livelihood and as such responded to the query

by apologizing for something he did not do, same cannot be said that the Plaintiff has

admitted that he was responsible for the failure to debit the account. Plaintiff submits

that he was wrongly charged for an offence he did not commit and the fact that he

apologized for the said offence in his query does not suggest that he admits committing

the said offence. Therefore the sanctions imposed on the Plaintiff by the Defendant bank

on 20th May, 2019 was wrongful since same cannot be attributed to him in any way. That

the sanctions against the Plaintiff in the letter dated 20th May, 2019 which gave him a two

week suspension without salary, demotion to the grade of Senior Officer Grade 2 with

reduced salary and removal from the position of Operations Manager were wrongful.

On his position that his dismissal was wrongful, the Plaintiff pleaded that the allegations

of gross misconduct on grounds of dishonesty and insubordination, gross negligence and

commission of acts leading to serious financial loss to the Defendant were unfounded

and that he was not given a fair hearing before the imposition of the sanctions on him.

He specifically testified in paragraphs 16, 17, 18, 28, 31, 32, 33, 34, 35 and 37 of his Witness

Statement to the effect that he was not given an opportunity to defend himself against

the allegations of misconduct and that Defendant contravened Chapter 28 (2), (3) and (4)

of the Human Resource Policy and Manual of the Bank in summarily dismissing him as

well as erroneously relying on Section B (2) (f) of the Common Offences and Proposed

Sanctions by the Bank of Ghana.

The Court has noted that prior to being invited and attending the Board meeting of the

Defendant Bank, the Plaintiff had been issued with a Query on the matter and he duly

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responded to the Query admitting his wrongdoing and promising not to repeat his

action. During cross-examination, he admitted to this chronology as follows:

Q: The Board of Directors of the Plaintiff (sic) Bank reviewed your role in the omitted debit

to the account of Makolives and sanctioned you accordingly.

A: My Lady, I was sanctioned. The two (2) cheques in question I explained to this

Honourable Court that the day of the sanction I was not given the opportunity at the Board

meeting to talk. At the Board meeting I was asked to excuse them and then recalled back,

then the Board Chairman pronounced the sanction. So at the meeting one of the Board

members stood up and told the Chairman that the Management of the office account is the

responsibility of the Audit Department. My Lady, this Board member I am talking about

repeated these three times but the Board Chairman ignored him and went ahead to sanction

me.

Q: I am putting it to you that you were already given an opportunity by way of query to

explain yourself which explanation did not satisfy the Board as a result of which you were

sanctioned, so it is not true that you were not given the opportunity to explain yourself.

A: My Lady that is not so. The query letter asked me to explain the meeting that transpired

between me and the account holder of Makolives. Under normal circumstances my witness

would have been invited and a meeting before the sanction was pronounced but nothing of

that sort was done.

The Query which the Defendant tendered as EXHIBIT 2 on its face did not solicit any

explanation from Plaintiff as to why he met Makolives. On 16th April 2019, Defendant's

Query to the Plaintiff was to explain why the debit of cheque number 000525 was

reversed. In response to the query, Plaintiff wrote EXHIBIT 3 on 18th April 2019 to

explain the circumstances and apologized which he now says he did so out of fear of

~ 17 ~
losing his job. He also did not call the Board member whom he says was pointing out

something in his favour at the meeting to come and testify.

Plaintiff claims that he was not heard in the matter relating to the leakage of Donewell

Insurance Co Ltd's cheque payment to customer Makolives. He attended the meeting

which Defendant says was the Disciplinary Proceedings with a witness of his choice who

testified in this suit. It is noted that in paragraphs 24, 25 and 26 of the Statement of Claim,

Plaintiff’s pleading is to the effect that he was formally invited for a hearing on 24th March

2020 which said meeting was ultimately held on Friday, 27th March 2020. In the Witness

Statement of Plaintiff's witness, PW1, he testified in paragraphs 4 through 10 that he

accompanied Plaintiff to a meeting at the premises of the Defendant to meet a Committee

of the Defendant bank in connection with the leakage of the cheque issued by Donewell

Insurance Co Ltd and gave details of what transpired at the said Committee meeting. The

letters inviting Plaintiff to attend the Disciplinary meeting were tendered in the trial by

the Plaintiff and accepted as EXHIBIT E.

Defendant led evidence seeking to proof that the Plaintiff was given a hearing on the

allegation of leakage of the cheque to customer Makolives. Defendant testified in

paragraphs 11, 12 and 13 of the Witness Statement of Gideon Odei that when customer

Makolives exhibited the cheque to his witness statement in the debt recovery action, it

caused an investigation into the source of the leakage and its investigation pointed to the

Plaintiff. When the Plaintiff was confronted with the investigation findings, he flatly

denied ever being present on the premises of the Defendant until he was shown the CCTV

footage. Defendant subsequently constituted a Disciplinary Committee to look into the

issue which according to Defendant is the same Committee that the Plaintiff and his

witness admitted to having attended. Defendant contends that Plaintiff was heard and

defended himself but the Defendant employer found the allegations against the Plaintiff

to amount to misconduct warranting dismissal.

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Where the parties have formally recorded the whole of their agreement in writing, the

written document, prima facie, is taken to be the whole contract. The terms of such a

written contract are therefore said to be limited to the contents of the written document

and nothing more. Christine Dowuona-Hammond "The Law of Contract in Ghana" at

page 129.

As a general rule, where the agreement is wholly reduced into writing, extrinsic evidence

will not be admitted to add to, vary or contradict the terms of the written agreement as

per the case of MOTOR PARTS TRADING CO. V NUNOO [1962] 2 GLR 195.

In the case NKEGBE V. AFRICA MOTORS DIVISION OF UNITED AFRICA

COMPANY OF GHANA LIMITED [1978] GLR 32, the Court held that: "The fundamental

principle of contract law was that when the basis and conditions of the contractual relationship

between the parties had been reduced into writing then the liability for the breach must be

ascertained by considering the contract document"

The basis for the summary dismissal of the Plaintiff in Exhibit F according to the

Defendant Bank was for Gross Misconduct on the grounds of:

1. Dishonesty and insubordination

2. Gross Negligence and commission of acts leading to serious financial loss

of GHC233,752.87 to the Bank.

In chapter 28 of the HR Policy and Procedural Manual, the punishment for

Insubordination is clearly spelt out as:

a. First instance - Written warning

b. Second instance - final warning

c. Third instance – dismissal

Again, the penalty for the offence of negligence in the Human Resource Policy and

Procedural Manual is spelt out as a written warning.

~ 19 ~
It is the case of the Plaintiff that the punishment meted out to him by the Defendant is

not the prescribed punishment within the Human Resource Policy and Procedural

Manual which is the guiding manual for the conduct of both the employer and the

employee. That since the punishment meted out to the Plaintiff is not prescribed by the

manual, same is without basis and unfair to the Plaintiff.

During cross-examination of the Defendant Witness on 6th July, 2022 this transpired as

follows:

Q: The same Policy Manual at the same page "73" has the offence of Insubordination. Is that not

so?

A: That is so.

Q: And the punishment for Insubordination at first instance is Written Warning, second instance

is Final Warning and third instance Dismissal. Is that not so?

A: That is so My Lady.

Q: Was the Plaintiff given any prior warnings for Insubordination?

A: No, My Lady, not in this case.

Q: So you agree that summarily dismissing the Plaintiff for insubordination without any prior

warnings is wrong.

A: That is not so My Lady. In Exhibit "B" on page "81" that is the Human Resource Policy

Manual, it clarifies Insubordination to be treated as a major misconduct. On page "82" it

gives Management and the Board the right to determine appropriate punishment in all

cases and the same page prescribes summary dismissal for gross or very serious misconduct

depending on the facts involved. The sum of offences for which Plaintiff was found liable

had been detailed in the Summary Dismissal letter amounts to very serious and gross

misconduct and the facts of the matter were the basis upon which the Bank prescribed

Summary Dismissal. In addition to that, Plaintiff was aware through the letter dated 20 th
~ 20 ~
 May, 2019 that he was required to fully co-operate with Management in its efforts to

recover the debt on the account of the customer, failure of which the Plaintiff shall be subject

to dismissal.

Plaintiff’s case is that before the Plaintiff could have been dismissed, he was to be given

a written warning by the procedure of their Human Resource Policy Manual but they

failed to do so. That the Defendant went beyond the powers given to it by the Human

Resource Policy Manual and Plaintiff was wrongfully dismissed as the punishment for

insubordination did not match the offence.

Plaintiff relies on criminal law to state that the law is that a person shall not be punished

twice for the same offence per the case of ESSIEN V. THE STATE [1965] GLR 44. It is the

case of the Plaintiff that the Defendant wrote a letter dated 20th May, 2019 entitled

"Disciplinary Sanctions 'Makolives Ventures Cheque Numbers 000525 and 000546

informing him of purported disciplinary sanctions taken against him for gross negligence

leading to the loss of GHC218,786.10 to the Defendant bank to which he was sanctioned

and re-assigned in Exhibits C and C1. It is the case of the Plaintiff that he was demoted,

his salary was reduced and suspended for two weeks without salary. However, after

meting out this punishment to the Plaintiff the Defendant again in its letter dated 31 st

March, 2020 which summarily dismissed the Plaintiff stated one of the grounds for the

dismissal as the same offence which the Plaintiff has already been punished for: "a. Gross

negligence on your part, as the Operations Manager at the time, resulted in the omitted

debits to the account of Makolives Ventures (current account number

05071220000032911) in respect of cheque numbers 000525 and 000546 with face values of

GH96,735.60 (for 16/04/2018) and GH122,032.50 (for 13/07/20180 respectively".

~ 21 ~
Counsel for Plaintiff referred to the case of TURKSON V. MANKOADZE FISHERIES

LIMITED [1991] GLR 430 where the Court held that:" Whenever people were given power

by law to consider facts and to arrive at conclusions affecting the fate of human beings, they were

performing a quasi-judicial function and if the body violated the rules of natural justice the courts

had power to declare the procedure invalid, as well as the conclusions therefrom. In the instant

case, the administrative inquiry violated the two cardinal principles of natural justice, namely a

man might not to be condemned unheard, and secondly, a man must not be a judge in his own

case"

It is again the case of the Plaintiff that no disciplinary hearing was conducted by the

Defendant to ascertain his culpability in the leakage of the Donewell cheque charge

against him and that he was not even given any opportunity to defend himself before he

was sanctioned by the Defendant Bank. It is also the case of the Plaintiff that the sanctions

were in contravention of a fair hearing and chapter 28 (2) and (3) of the Human Resource

Policy and Procedure Manual of the Defendant Bank. The substance of his allegations is

thus that the sanctions imposed on him contravene Chapter 28 (2) and (3) of the Human

Resource Policy and Procedure Manual of the Defendant Bank and that the reliance on

section B (2) (f) of the Common Offences and Proposed Sanctions by the Bank of Ghana

was erroneous. In prove of his allegations, Plaintiff testified in paragraphs 30, 31, 34 and

37 of the Witness Statement on the sanctions that he did not commit those offences for

which he was dismissed and that he was punished twice for the same offence.

It is in evidence that on 26th July, 2021 the Plaintiff was cross-examined as follows:

Q: I am putting it to you that you were already given an opportunity by way of query to

explain yourself which explanation did not satisfy the Board as a result of which you were

sanctioned, so it is not true that you were not given the opportunity to explain yourself.

~ 22 ~
A: My Lady that is not so. The query letter asked me to explain the meeting that transpired

between me and the account holder of Makolives. Under normal circumstance my witness

would have been invited and a meeting before the sanction was pronounced but nothing of

that sort was done.

On 6th July, 2022 Defendant’s witness was cross-examined as follows:

Q: Do you have any copy of the proceedings or CCTV footage of the Disciplinary Proceedings

of that day as part of your evidence before the Court?

A: No My Lady.

Q: Now, the Plaintiff was dismissed for Dishonesty and Insubordination and gross negligence

and commission of acts leading to serious financial loss of GHC233,752.87.00 to the Bank.

That is so?

A: That is so My Lady.

Q: And these grounds had nothing to do with the leakage of the cheque.

A: That is not so My Lady. The leakage of the cheque is in breach of the Oath of Secrecy and

Confidentiality that Plaintiff had sworn as a staff of the Bank. Also for the fact that three

(3) different staff testified against the Plaintiff during the investigations into the leakage of

the cheque it is also proof that the Plaintiff was dishonest in his dealings with the Bank.

My Lady, all these were clearly spelt out in Exhibit "F" which is the Summary Dismissal

Letter.

Plaintiff contends that the above shows that after the investigation on the leakage of the

cheques, the Defendant did not give the Plaintiff a hearing to determine whether what

they found during their investigation was true. That even though Defendant claims that

the Plaintiff was in breach of the Oath of Secrecy however his dismissal letter had nothing

of that sort stated therein.

~ 23 ~
On the part of Defendant, it submits that the complaints of the Plaintiff stem from a

misconception that the right to a hearing should be conducted in identical terms to a court

hearing. That all that is required from the employer is to give reasonable notice of the

allegation to the employee and give the employee the opportunity to be heard which

Defendant did exactly that.

Counsel cites the case of LAGUDAH VRS GHANA COMMERCIAL BANK [2005-2006]

SCGLR 388 as providing a good impetus for this Honorable Court to dismiss the

Plaintiff's allegation of not being given the opportunity to be heard. In that case, the

appellant employee of the defendant bank argued that after having been found to have

misconducted himself, the defendant bank ought to have instituted disciplinary

proceedings and afforded him an opportunity to be heard. Baddoo JSC stated that the

written query inviting the plaintiff to submit an answer to the allegation of misconduct

and his subsequent response to the query, comprehensively complied with the audi

alterem partem rule and therefore the appellant was given a fair hearing.

Defendant submits that sanctions imposed on the Plaintiff for his misconduct were

proper as the Plaintiff has not proven that the sanctions were wrongful at all. Defendant

makes the case that the imposition of sanctions relating to the failure/refusal to debit

cheques number 000525 and 000546 and the reversal of debit were done after the Plaintiff

had been queried (EXHIBITS 2 & 3) and his meeting with the Board of the Defendant

Bank. That for his misconduct in relation to the cheques, the Defendant found the Plaintiff

to have been grossly negligent in his duties as the Operations Manager and so was

suspended, demoted and reassigned to a different role as contained in EXHIBIT 4. That

as regards the leakage of the cheque to customer Makolives, the Plaintiff was meted

sanctions after investigation and disciplinary hearing against Plaintiff. Defendant

contends that the subsequent acts of the Plaintiff including the leakage of the cheque and

Gross Insubordination were additional offences that he committed after the Bank had

~ 24 ~
prescribed lesser punishment in the letter of 20th May, 2019, Exhibit "C”. That the

sanctions that were imposed on the Plaintiff were properly situated within the parties'

agreement.

Let us examine Chapter 28.2 of EXHIBIT B, the agreement of the parties which specified

the scope of action of the Defendant in disciplining its employees. The provision states as

follows:

Matters of discipline, integrity, neglect of duty, insubordination, working in a manner

detrimental to the bank's interest, absenteeism etc shall be treated as major misconduct.

Any issue that the policy may not cover shall be deemed to be taken care of by the Conditions

of Service of the Association of Rural and Community Banks or shall be at the discretion of the

Board of Directors.

Chapter 28.3 specified that the offences of insubordination and negligence exacted the

punishment of warning and provided that besides the specified punishment, the Board

of the Defendant shall refer to Bank of Ghana prescribed sanctions for certain offences

not mentioned in the policy. In all disciplinary matters, the Defendant's Board of

Directors have a discretion, but was same properly and fairly exercised in this case?

For gross or serious misconduct, Chapter 28. 4 of EXHIBIT B specifies summary

dismissal provided the misconduct is investigated and the employee given the

opportunity to respond to the allegation of misconduct:

28.4 Gross or Serious Misconduct Policy:

● Summary dismissal for gross or very serious misconduct is (possible depending

on the facts involved). Management should seek advice taking these steps:

~ 25 ~
Procedure

a. The Manager is to investigate the alleged offence thoroughly, including talking to

witnesses, if any.

b. The Manager should ask the employee for their response to the allegation (taking notes

of this discussion) and allow them to have representation. The Manager should also have

a witness present. The Manager shall give genuine consideration to the employee's

response and circumstances.

c. It is still appropriate, following a thorough investigation, the Manager shall send the

documentation to the Board of Directors for consideration and they can

terminate/dismiss the employee.

Article 16 (v) of the Conditions of Service, EXHIBIT B1, which is to be read in Conjunction

with EXHIBIT B stipulates summary dismissal under certain circumstances:

V. SUMMARY DISMISSAL

a. Summary dismissal may be effected by the Bank for just and reasonable cause involving

dishonesty, fraud, willful refusal to obey a legitimate and reasonable instruction, negligence

involving the Bank in a substantial loss or in the event of an employee being guilty of proven

serious misconduct,

b. Where an officer has committed an offence for which he may be summarily dismissed he shall be

given written query outlining the offence committed and shall be allowed forty-eight hours to reply

in writing to such notice and defend himself.

c. Alternative penalties for the above offences which may be applied at the discretion of the Board,

depending on the circumstances and gravity of any particular case, may include the following:

1. Dismissal with/without a reduction in any benefits due to the office.

~ 26 ~
 2. Reduction in salary, that is, adjustment of salary to a point on the scale attached to

the post in question.

3. Withholding annual increment for not more than twelve (12) months.

According to the Bank of Ghana Common Offences Committed by Rural Banks and

Proposed Penalties/Sanctions, EXHIBIT G, the banks should impose sanctions of

dismissal for the suppression of cheques.

A review of the procedure and sanctions in EXHIBITS B, B1 and G shows that the

Defendant was well grounded in summarily dismissing the Plaintiff for his misconduct

in the candid and considered opinion of the Court. The Defendant was exercising its

common law right to dismiss the Plaintiff for proven misconduct. The Defendant did not

act ultra vires in the dismissal of Plaintiff. Also, the Supreme Court decision of BANI

VRS MAERSK GHANA LIMITED (2011] 2 SCGLR 796 opines that the dismissal is

justified where there are facts to show that the conduct of the Plaintiff had become

incompatible with his faithful and diligent discharge of his duties to the Defendant Bank.

The Supreme Court held in the case that even if the finding of the subcommittee was ultra

vires, it would not derogate from the defendant's common law right to dismiss the

plaintiff for proven misconduct. Once there are facts on the record justifying the

defendant/respondent dismissing the appellant for misconduct, the fact that the findings

were made by a committee that was acting, allegedly, ultra vires, is irrelevant.

Indeed, the right to dismiss the employee who has misconducted himself is a preserve of

the employer recognized at the Common Law. According to Halsbury's Laws of England,

3rd Edition at pages 485-486, the employer may dismiss the employee for misconduct as

follows: Misconduct, inconsistent with the due and faithful discharge by the servant of the duties

~ 27 ~
for which he was engaged, is good cause for his dismissal, but there is no fixed rule of law defining

the degree of misconduct which will justify dismissal.

Cases such as AWUKU-SAO VRS GHANA SUPPLY CO LTD [2009] SCGLR 710,

KOBEAH VRS TEMA OIL REFINERY; AKOMEA-BOATENG VRS TEMA OIL

REFINERY (CONSOLIDATED) [2003-2004] SCGLR 1033 AND REPUBLIC VRS

NATIONAL INVESTMENT BANK; EX PARTE CANTIL [1984-86] 1 GLR 237 espouse

the same principle.

In the candid and considered opinion of the Court, the misconduct of the Plaintiff was

not just merely alleged but was proven. He admitted to his misconduct in EXHIBIT 2 and

EXHIBIT 3 and apologized. He apologized because it was his duty as a superior officer,

to ensure that the customer was duly and timeously debited with both cheques upon

payment of the value and he had no right to reverse the debit without authority. During

Plaintiff's cross-examination, he answered questions that provided credence to the fact

that Plaintiff himself knew that he failed in his duty to the Defendant bank thus

occasioning the non-debits of the cheques and the subsequent debit and reversal of the

debit without authorization. This is what he stated during cross-examination:

Q. The reconciliation which is done under your supervision, did the reconciliation capture

the 2 transactions that is cheque number 000525 and cheque number 0546 as transactions

that were affected by the system failure you referred to?

A. No My Lady.

Q: Do you have any reason why the 2 cheques were not captured in the reconciliation done

by officers working under you at the Defendant Bank?

A: No

~ 28 ~
 Q: You again caused the said debit on the account of the customer to be reversed on 1 st

March, 2019, is that correct?

A: No My Lady. It was after I detected the cheque and showed it to the customer and the

customer said they will do their reconciliation, and after the reconciliation he will get back

to us. The day I went to the house that the man called the woman and asked her when was

the last time she reconciled the account that was the day the man said I should give them

some time to do the reconciliation. When the reconciliation was not forthcoming I called

the man but the man could not pick the call, I told the Head of Finance and Accounts

Department to debit the account. So when I realized that I could not get through to the

man I told the Head of Finance and Account to reverse the Transaction because I could not

speak to the man concerning the transaction and immediately I informed my General

Manager.

Q: In both instances that is debiting and reversal of the account, you failed to take or obtain

permission from your immediate supervisor. I am putting that to you.

A: That is so but I informed him immediately the debit was reversed.

Q: It was during your tenure as the Operations Manager that cheques number 000525 and

000546 were omitted to be debited to the account of Makolives Ventures.

A: Yes My Lady.

In the Defendant's testimony at paragraph 7 of the Witness Statement and cross-

examination, Defendant laid the responsibility to debit the two cheques upon payment

on the Plaintiff and buttressed the responsibility during cross-examination as follows:

Q: Can you tell the Court why these cheques were not allegedly debited to the Customer's

account?

~ 29 ~
 A: When the cheques were received they were not debited automatically as a result of

system challenges. The Plaintiff also did not do the required reconciliation to debit the

customer manually, and therefore left the two cheques until it was detected through Audit

Review.

Q: And the failures of these Clearing Officers cannot be visited on the Plaintiff. I put it to

you.

A: That is not so My Lady. The Plaintiff as the Operations Manager has the responsibility

of reconciling the clearing account on daily basis to ensure that all necessary entries are

correctly passed. In paragraph 7 of my Witness Statement I refer to Exhibit 3 which is the

response of the Plaintiff to a query issued to him on the matter in which the plaintiff

explained his involvement in reversing the said cheque from the customer's account, after

he himself posted the debit almost a year after the cheques were paid by the Bank. This

indicates that the Plaintiff is responsible to have ensured that the cheques were debited

when the Bank paid them in 2018.

Q: I put it to you it is the sole responsibility of Clearing Officers to make sure that cheques

are cleared and accounts properly debited every single day.

A: That is not true My Lady. Our procedures require that the Supervisor which in this

case is the Plaintiff should ensure that all clearing settlements are concluded on daily basis.

When the system failed to automatically debit the cheques, what was Plaintiff in the

position he occupied required to do? He in the opinion of the Court, had to cause the

cheques to be manually debited at the close of day and failing that through periodic

reconciliations of the clearing account. Plaintiff failed to perform this duty for close to a

year. By the Plaintiff's own statement, the bank had system failures and technical errors.

Officers of the bank were negligent having failed to manually debit the account of the
~ 30 ~
Defendant as found in the companion case, which Officers were directly headed by

Plaintiff as Operations Manager who had had an opportunity to act as General Manage.

This shows that the Plaintiff even if he had no fraudulent inclinations, did not exercise

reasonable skills and care in his dealings with the Defendant. That negligence is

attributable to the Plaintiff who was to ensure that it was promptly done. Not having

done so, Plaintiff can be said to have incompetently handled his duties. The Defendant is

a Bank which deals with monies of its customers thus its Officers have to exercise utmost

good faith and skill in their dealings. Plaintiff's testimony that he admitted his

misconduct because he felt threatened and feared losing his job does not sit well with the

Court and the Court does not accept that explanation.

For the leakage of the cheque, the Court will hasten slowly to accept that all fingers point

to the Plaintiff as the person who furnished the customer with the cheque purporting that

it was payment of the debt liability. The Plaintiff may have initially denied his presence

at the premises of the Defendant on the relevant days even though the CCTV footage

together with the testimony of DW1, DW2 and DW3 in Court showed that Plaintiff visited

the premises of the Defendant at an earlier time, entered into the office where the cheque

was filed, picked a document in a file in that office, run photocopies and returned the

document to the file in that office at a time the occupants of the office were not in. The

Plaintiff says that those witnesses were not presented at a Disciplinary Committee to

enable him cross examine them but he had the opportunity to do so in Court. His

explanation that he entered the office to pick a "church sticker" which could be true is not

however the only reasonable inference that can be drawn from his presence in a space he

no longer had free access to at a time when that cheque also leaked conveniently.

The cause of action of the Plaintiff is not brought under the statutory remedy of "Unfair

Termination" as enacted in the Labour Act, 2003 (Act 651). Even if that were the case, the
~ 31 ~
Defendant is still justified under section 15 (e) (iii) of the Act to terminate the employment

on grounds of proven misconduct against the Plaintiff as well as the incompetence of the

Plaintiff.

In the case of KOBEAH AND OTHERS V TEMA OIL REFINERY; BOATENG AND

OTHERS V TEMA OIL REFINERY (CONSOLIDATED) [2003-2005] 1 GLR 485 the

Court held as follows:...There is no fixed rule of law defining the degree of misconduct that will

justify dismissal. There is also an unbroken line of authority at common law that an employee

cannot lawfully be dismissed (as against terminated) without first telling him what is alleged

against him and hearing his defence or explanation. This is obvious. If the dismissal is lawful, the

employee loses all his entitlements. He is therefore entitled to be heard as a matter of course. For

these reasons, today, legislation and collective agreements world-wide are shifting the terminology

from "termination" and "dismissal" to "unfair dismissal." Various fact-situations are then listed

as, prima facie, constituting unfair dismissal and the onus is shifted on to the employer to show

that the dismissal was fair".

In a litany of cases including REPUBLIC VRS GHANA RAILWAY CORPORATION;

EX PARTE APPIAH [1981] GL 752, ARYEE VS STATE CONSTRUCTION

CORPORATION [1984-86] 1 GL 424 AND LAGUDAH VRS GHANA COMMERCIAL

BANK [2005-2006] SCGLR 388 it has been repeatedly stated that the right to a hearing

(where same ought to be given) does not require that there must be a formal trial of a

specific charge akin to court proceedings. It was held in Ex parte Appiah, supra, at page

759 as follows: The core idea implicit in the natural justice principle of audi alterem partem was

simply that a party ought to have reasonable notice of the case he has to meet and ought to be given

an opportunity to make his statement in explanation of any question and answer an argument put

forward against it. The principle does not require that there must be a formal trial of a specific

charge akin to court proceedings in dealing with the principles of natural justice, one has to always

~ 32 ~
bear in mind that the principles are substantive rather than procedural safeguards. Therefore the

fact that a particular formal procedure is not adopted does not itself imply that the principle has

not been applied in an appropriate case”.

Similarly, in Aryee vrs State Construction Corporation at holding 2 of the headnotes it

was held as follows: “A hearing did not necessarily, at all times, involve the physical presence

of the employee before the Board of Directors to be examined viva voce. Where a Board wrote to an

employee drawing his attention to alleged acts of misconduct and impropriety and invited a

written explanation, it would be thought that the employee would have been given an opportunity

to be heard. The audi alterem partem rule would have been complied with”.

On issues 1 to 4 therefore, the Court will have to resolve same against the Plaintiff.

Issue 5 Whether or not the Defendant bank’s inability to debit the customer Makafui

Kofi Wonyah’s account was due to system failures and technical errors at the

Defendant’s Bank.

In paragraph 7 of the Statement of Claim, the Plaintiff pleaded that the failure was due

to "system failures and technical errors". Cheque number 000525 (GHC 96,735.60) was

paid on 16th April 2018 whilst cheque number 000546 (GHC 122,032.50) was paid on 12 th

July 2018. Plaintiff claimed to have realized through reconciliation in February 2019 and

March 2019 that the respective cheques had not been debited to the account of customer

Makolives Ventures. In paragraph 8 and 9 of the Statement of Claim, he stated that upon

realization, he drew the customer's attention to the detected errors and that he instructed

the Head of Finance to debit the customer's account but again reversed the debit of the

cheques pending the customer's demand to reconcile his account. Plaintiff further stated

that he was indicted for his failures to debit the cheques and the reversal of the debit in

paragraphs 10 to15 of the Statement of Claim and that the Defendant alleged that his

gross negligence had caused the Defendant loss of GHC 218,786.10. Plaintiff claimed in

~ 33 ~
paragraph 35 of the Statement of Claim that the Defendant acted in bad faith in instituting

debt recovery actions against customer Makolives despite receipt of insurance payment

for its purported loss.

In its Amended Statement of Defence, the Defendant contended in paragraphs 6 and 7

that the failure to debit the cheques was deliberate or intentional and a suppression of

the payment which was detected during the bank's audit. Defendant further averred that

the Plaintiff having failed in his duty to debit the cheques without authorization reversed

the debits after their belated debits to the account. After the reversal of the debit to the

account, the Plaintiff further refused to report it to his immediate supervisor until the

reversal of debits were also discovered. Customer Makolives Ventures then stopped

transactions on the account resulting in a debit balance on the overdraft facility for which

reason the Defendant instituted debt recovery action against him at the High Court.

Defendant further pleaded in paragraphs 17 and 18 of the Amended Statement of Defence

that for the roles played by its employees in the non-debit of the cheques, it applied for

insurance payment of a Fidelity Insurance Policy it had with Donewell Insurance Co Ltd.

However, during the course of proceedings in the action against customer Makolives

Ventures, he amended his Statement of Defence to plead that the Bank had received

insurance payment for his liability and consequently exhibited the cheque from Donewell

Insurance Co Ltd. Defendant subsequently caused to be investigated how its cheque

payment from Donewell Insurance Co Ltd was leaked to customer Makolives Ventures

and found that it was the Plaintiff who leaked it to him. Defendant then pleaded collusion

between the Plaintiff and customer Makolives as the reason for the failure/refusal to debit

the cheques and the reversal of debits.

Plaintiff is his Witness Statement basically rehashed his pleadings as his testimony on the

above issues. Specifically, in paragraphs 8 - 10 of the Witness Statement, the Plaintiff

testified that it was due to "system failures and technical errors" at the Defendant Bank
~ 34 ~
that the cheques were not debited and that in February 2019 and March 2019 when he

realized that the cheques were not debited he drew the customer's attention to it and

instructed the debit. When the customer requested to do reconciliation on his account, he

reversed the debit pending the customer's reconciliation.

In this matter, it was the Plaintiff who asserted that the failure to debit the accounts was

due to "system failures and technical errors". As such, he bore the onus of proving these

"system failures and technical errors". It is the case of the Plaintiff that due to system

failures and technical errors at the Defendant Bank the cheques were not debited to the

account of the customer. That in February 2019 the Plaintiff realized after reconciliation

exercise that the cheque numbered 000525 had not been debited to the account of the

customer. His case is that the said system failures and technical errors were admitted by

the Defendant bank in the suit the Defendant bank instituted against Makolives and

reiterated by the Plaintiff during cross-examination on 8th June, 2021 as follows:

Q: So the fact that cheque number 000546 was also paid meant that the said cheque received

technical verification from the Defendant Bank, is that not so?

A: My Lady I would like to refer to Exhibit "D" which is a statement of claim in suit number

E2/19/2021 paragraph "g" of the statement of claim thereto of the Defendant Bank. It is clearly

stated that "Plaintiff says that due to Bank System failures and technical errors at the Bank

cheques number 000525 and 000546 were not debited to the account of the Defendant soon after

they were honoured until early February, 2019 and March, 2019 when the errors were detected

and the cheques were then duly debited to the account of the Defendant. This is the statement of

claim by the Defendant Bank presented at this very Court in another matter. This answers the

question Counsel asked on the cheque number 000546

~ 35 ~
Per Exhibit D therefore, Defendant corroborates Plaintiff’s claim of the systems failure.

Having so found, the Court also finds that in its evidence-in-chief, cross-examination and

the defence of the Defendant, it also establishes that the Plaintiff failed to diligently

perform his functions as the Operations Manager to ensure that cheques including the

disputed cheques that were not automatically debited online, (even if there was systems

failure) were manually cleared from the Suspense or Clearing Account at the end of the

day. The evidence also established that apart from the online and daily manual clearing

of cheques, the Plaintiff failed/refused to perform periodic bank reconciliations to detect

the non-debit for close to nine or ten months. Below was how he answered in his cross-

examination:

Q: Who has the responsibility and duty at the Defendant Bank to debit the two transactions

being referred to in your paragraphs 6 & 7 of your witness statement?

A: The software the bank is using that is the T24 (name of the system).

Q: Who is in charge of operating this system?

A: It was one Wise Agbohla working as a Clerk in the Accounts and Finance Department.

He is now an ex-staff.

Q: Whom does he report directly to?

A: He reports to me.

Q: If your software system failed to debit transactions, what happened to those

transactions?

A: They do what we call manual posting.

Q: So Mr George, as a diligent Operations Manager how did you treat cheques that for

some reason could not be debited or credited to the account pending investigation.

~ 36 ~
A: You leave the item in the Suspense Account until the investigation is done.

Q: When you mentioned system failure in the Defendant Bank, what do you mean by

System Failure?

A: System failure is that the system is supposed to post a transaction into a right account,

so for any reason when the system fails or the system does post a transaction, we say it is

a system failure.

Q; As an Operations Manager do you do daily reconciliation of account?

A: Yes My Lady they do.

Q: What is Reconciliation?

A: Reconciliation is simply trying to fish out items that are on transit to their proper

destination.

Q: So daily Reconciliation per your explanation is to satisfy yourself on daily basis that the

various postings in transit are properly placed in their rightful account/

A: Yes My Lady that is so.

Q: The reconciliation which is done under your supervision, did the reconciliation capture

the 2 transactions that is cheque number 000525 and cheque number 000546 as

transactions that were affected by the system failure you referred to?

A: No My Lady.

Q: So do you have any reason why the 2 cheques were not captured in the reconciliation

done by officers working under you at the Defendant Bank?

A: No.

~ 37 ~
After explaining the purpose of a reconciliation and its frequency, the Plaintiff claimed

that he realized that the system failed when the disputed cheques became an issue:

Q: So for how long did you notice that the system of debiting transactions was not

functioning properly in the Defendant Bank?

A: My Lady, it is only when this particular transaction that we are contending that the

system has failed to post,

Q: So when those two (2) cheques belonging to Makolives Ventures run by Makafui

Woanyah were not posted as a result of system failure, what did you do to the said cheques?

A: I said we have a department that is responsible for clearing this cheque. These are the

people that the Defendant Bank submitted their names to APEX Bank and they created

profiles, user names and passwords that gave them the mandate to clear cheques.

Q: What is the name of that department you are referring to?

A: Accounts and Finance Department.

Q: In the scheme of arrangement in the Bank who do they report to?

A: They report to me.

Q: So you are their immediate supervisor in the department?

A: Yes My Lady.

From the perspective of the Defendant, when the cheques were not automatically

debited, the Plaintiff had the responsibility of clearing the account that day. The

Defendant answered as follows in cross-examination:

Q: Can you tell the Court why these cheques were not allegedly debited to the Customer's

account?

~ 38 ~
A: When the cheques were received they were not debited automatically as a result of

system challenges. The Plaintiff also did not do the required reconciliation to debit the

customer manually, and therefore left the two cheques until it was detected through Audit

Review.

Q: That Bank has Clearing Officers, is that not so?

A: That is so My Lady.

Q: And it is the responsibility of these Clearing Officers to make sure that cheques issued

are cleared and account debited accordingly.

A: That is so My Lady.

Q: And the failures of these Clearing Officers cannot be visited on the Plaintiff. I put it to

you.

A: That is not so My Lady. The Plaintiff as the Operations Manager has the responsibility

of reconciling the clearing account on daily basis to ensure that all the necessary entries

are correctly passed. In paragraph 7 of my Witness Statement I refer to Exhibit 3 which is

the response of the Plaintiff to a query issued to him on the matter in which the Plaintiff

explained his involvement in reversing the said cheque from the customer's account, after

he himself posted the debit almost a year after the cheques were paid by the Bank. This

indicates that the Plaintiff is responsible to have ensured that the cheques were debited

when the Bank paid them in 2018.

Q: I put is to you that it is the sole responsibility of the Clearing Officers to make sure that

cheques are cleared and accounts properly debited every single day.

A: That is not true My Lady. Our procedures require that the Supervisor which in this

case is the Plaintiff should ensure that all clearing settlements are concluded on daily basis.

~ 39 ~
For issue 5 therefore, The Court makes a finding that whilst there was systems failure

within the Defendant bank on their own showing, the corrective stop gap manual process

to correct this, supervised by Plaintiff and the staff under him did not kick in due to

Plaintiff failing to perform his duty in the.

Issue 6 Whether or not Plaintiff has involved in any fraudulent and negligent acts that

resulted in losses to the Defendant bank.

The Defendant alleges that the Plaintiff was found liable for dishonesty and

insubordination and also liable for gross negligence and commission of acts leading to

serious financial loss to the bank. Under cross examination of Gideon Odei the

Defendants witness on 16th May, 2022 the following transpired:

Q: Can you tell the Court why these cheques were not allegedly debited to the

Customer's account?

A: When the cheques were received they were not debited automatically as a result of system

challenges. The Plaintiff also did not do the required reconciliation to debit the customer

manually, and therefore left the two cheques until it was detected through Audit Review.

Q: The Bank has Clearing Officers, is that not so?

A: That is so My Lady.

Q: And it is the responsibility of these Clearing Officers to make sure that cheques issued are

cleared and account debited accordingly.

A: That is so My Lady.

Q: And the failure of these Clearing Officers cannot be visited on the Plaintiff. I put it to you.

A: That is not so My Lady. The Plaintiff as the Operations Manager has the responsibility of

reconciling the clearing account on daily basis to ensure that all the necessary entries are

correctly passed. In paragraph "7" of my Witness Statement I refer to Exhibit "3" which

is the response of the Plaintiff to a query issued to him on the matter in which the Plaintiff

~ 40 ~
 explained his involvement in reversing the said cheque from the customer's account, after

he himself posted the debit almost a year after the cheques were paid by the Bank. This

indicates that the Plaintiff is responsible to have ensured that the cheques were debited

when the Bank paid them in 2018.

Q: I put it to you that it is the sole responsibility of the Clearing Officers to make sure that

cheques are cleared and accounts properly debited every single day.

A: My Lady our procedures require that the Supervisor which in this case is the Plaintiff

should ensure that all clearing settlements are concluded on a daily basis.

Q: The Bank also has Auditors, is that not so?

A: That is so My Lady.

Q: If there are any anomalies in the operations of the Bank, it is their duty to detect them as

early as possible.

A: That is so My Lady.

Q: And the failure of all these officers cannot be blamed on the Plaintiff. I am putting that to

you.

A: That is not so My Lady. For two reasons, first of all when there is collusion and deliberate

effort to conceal an anomaly or a transaction, it could take longer than expected to detect.

Second reason is that the Audit Reviews eventually led to the discovery of this issue.

Plaintiff per his Counsel submitted that the proceeding shows that the Clearing Agents

failed to do their job by debiting the account of the customer and the Auditors also failed

to detect the said anomaly however, the Defendant bank chose to visit the sins of the

Clearing Agents and the Auditors on the Plaintiff. That this is wrongful and should not

be encouraged.

In the opinion of the Court, the Court has found that Plaintiff was negligent in his duties

in his role as the Operations Manager but the Court stops short of making a finding of

~ 41 ~
fraudulent conduct as that requires a different and higher burden of proof per Section 13

of the Evidence Act NRCD 323.

Issue 7 Whether or not Plaintiff was involved in any acts of collusion with the

Defendant bank's customer Makafui Kofi Woanyah.

The Defendant asserts that the Plaintiff colluded with the customer and deliberately

concealed the cheques and that was the reason why it could not detect the said cheques

on time. As regards the allegation of collusion between the Plaintiff and customer

Makolives Ventures, Defendant posits that circumstantial evidence leads to the

irresistible conclusion that they were colluding in some respects. This is how Defendant

puts its case forward that first, the Plaintiff fails to diligently perform his duties to ensure

that the value of the cheques was debited immediately until after about a year. After he

posted the debit, he reverses the debit again without prior authorization until same was

detected through audit. Secondly, reconciliation under Plaintiff's supervision never

discovered these cheques for almost a year. Thirdly, when the customer is sued for the

recovery of the balance of the overdraft facility, Plaintiff complains that the recovery from

the customer is in bad faith since Donewell Insurance Co Ltd had paid for the loss.

Fourthly, the Plaintiff visits the premises of the Defendant at an unusual time to copy

some documents and denies being present at the relevant time until witnesses and CCTV

footage expose him. Fifthly, customer Makolives amends his Statement of Defence and

files his Witness Statement exhibiting a copy of the Donewell cheque shortly after

Plaintiff's unusual visit. Sixthly, Plaintiff then sought to tender his resignation from the

employment of the Defendant in the middle of the debt recovery action against the

customer and became uncooperative in the recovery efforts of the Defendant Bank

against the customer. That despite EXHIBIT 9 showing that Donewell Insurance

payment was for a fidelity guarantee for employees of the Defendant, the Plaintiff still

insist at paragraph 36 of his Witness Statement that that payment was for the loss for the

customer's overdraft facility. That therefore, the Plaintiff was collaborating with a
~ 42 ~
customer to fleece Defendant of the balance of the overdraft facility which collusion

commenced from the failure/refusal to debit the cheques on the day of payment and

extending to the period that the cheques were detected by the audit. That these cheques

were the only ones whose debits were outstanding for that long and the Plaintiff admitted

to acting on the instructions of the customer to reverse the late debit without the

authorization of the Defendant.

Did the Defendant prove this assertion as per the standard required by law? The

proceedings shows that Defendant alleges that the Plaintiff colluded with the customer

to conceal the cheques from Makolives which case they build out of coincidences.

However in the opinion of the Court since this is criminal conduct, they failed to

substantiate their claim or lead any weighty evidence in support of same. The allegation

of collusion by the Defendant is unfounded and without basis.

When Defendant’s witness was cross-examined on 16th May, 2022, the following

transpired:

Q: And the failure of all these officers cannot be blamed on the Plaintiff. I am putting that to

you.

A: That is not so My Lady. For two reasons, first of all when there is collusion and deliberate

effort to conceal an anomaly or a transaction, it could take longer than expected to detect.

Second reason is that the Audit Reviews eventually led to the discovery of this issue

Q: If you say there was collusion, who and who were in the collusion?

A: My Lady, I indicated that if there is collusion or concealment it will take longer to detect.

I did not specifically say there was a collusion in this case.

Q: So was there any collusion in this instance?

A: I cannot say conclusively that there was or there was no collusion. My Lady, in this

instance what I know for a fact is that seven (7) months after the payment of these cheques

the Plaintiff refused to debit the cheques to the customer's account and when it was detected

~ 43 ~
 and he debited one of the cheques to the customer's account, he again on his own reversed

the debit and My Lady, I refer again to Exhibit "3' which is the response of the Plaintiff

when he was queried.

Q: So it cannot be true that the Plaintiff was involved in any form of collusion with anyone

in respect of these cheques matter.

A: My Lady, I cannot say that the Plaintiff was not involved in any form of collusion in these

two cheques matter.

On issue 7 therefore, same will be resolved against Defendant.

Issue 8 Whether or not Plaintiff leaked Donewell Insurance Co. Ltd. payment to

Defendant Bank's customer Makafui Kofi Woanyah.

Whiles the Plaintiff alleges he did not leak the Donewell cheque to the customer, the

Defendant asserts that its investigations and Disciplinary Hearing against the Plaintiff

discovered that Plaintiff leaked the cheque. It is the case of the Defendant that the Plaintiff

leaked a Donewell Insurance Cheque paid to the Bank when Donewell Insurance was

satisfied that the loss incurred by the Bank as a result of the two cheques which were not

debited. DW1 testified to the Plaintiff lamenting to her around March 2020 about the

insurance payment the Defendant had received yet had sued the customer which Plaintiff

denied. In the presence of the Plaintiff she was asked about her encounter with the

Plaintiff and she repeated same. During her cross-examination, she confirmed again that

the Plaintiff had lamented about the insurance payment to her as follows:

Q: In paragraph 2 of your witness statement you said that sometime before March 2020

the Plaintiff approached you and said he had heard that the Bank had received a cheque as

insurance claim payment with respect to Makolives Ventures case. Is that so?

A: Yes.

~ 44 ~
 Q: You also claimed in paragraph 4 of your Witness Statement that you were asked by the

General Manager in the presence of Mr. Bright Aleawonor, Mr. Sylvester Atsu Bedzra

and the Plaintiff, if the Plaintiff had enquired of the receipt of the insurance payment claim

cheque.

A: That is so My Lady,

Q: The Plaintiff denied ever asking you or telling you any issue concerning the payment

of claim by insurance.

A: My Lady Plaintiff did not deny.

The Defendant's witness Grace Vormanor who claimed to have seen the Plaintiff come to

the office between 6 am and 7 am but gave evidence that she did not witness what the

Plaintiff went to do there.

Under cross examination of the Defendant Witness Felicia Deku who the Defendant

claims is an eyewitness to Plaintiff taking the said Donewell cheque the following ensued:

Q: In paragraph "3" of your Witness Statement you stated that "the Plaintiff was in the office

for a while and when I peeped to see what the Plaintiff was doing I saw that he was

searching for document on a file in the office". Is that correct?

A: Yes, My Lady it is true.

Q: The Plaintiff did not tell you that he was in the office to search for any document. Is that

not the case?

A: No My Lady.

Q: So how did you come to the conclusion that the Plaintiff was searching for a document.

A: My Lady, when the Plaintiff came to the office, he went to another office which is not his

office, because of that I hid to see what the Plaintiff was going to do so after that I saw that

he took a file and was searching for something in the file. He took something from the file

Q: And you did not see the something he took away. Did you?

~ 45 ~
A: No, I did not see what it was.

Q: So, I put it to you that the Plaintiff went to that office where he in to pick his sticker.

A: My Lady, I did not know what the Plaintiff came to take.

Per the proceedings above, there is no conclusive evidence that it was the Plaintiff who

leaked the said Donewell Insurance Cheque. None of the witness saw the Plaintiff take

the said Donewell Insurance cheque. It is the case of the Defendant that a CCTV camera

captured the Defendant photocopying a document but there is no evidence to show that

it was the Donewell Insurance cheque. During cross-examination of the Defendant

Witness on 6th July, 2022 the following transpired:

Q: Now, from the footage there is nothing to show that the Plaintiff had taken any cheque.

A: That is not so My Lady. The footage shows the Plaintiff entering the Finance and Accounts

office, coming out and to the Banking Hall and removing from his back pocket a cheque,

working around the photocopier making copies and then returning to deposit the said

cheque back in the Finance and Accounts office. When Plaintiff was confronted with the

footage he then admitted entering the Finance and Accounts Office but said he went there

to pick a sticker which he had left in that office at the time he was in charge of supervising

that department. Both he and his Witness could not provide the Committee with any

consistent information regarding the said sticker even though both of them agreed that they

belong to the same church or religious group whose sticker he had gone back to pick and

neither could the Plaintiff provide any answer as to why he would have returned the sticker

to the Finance Office nor could he justify why he had to go into that office and search

through another officer's documents in the officer's absence at a time when there was no

one in the office to give him permission. Therefore, the evidence before the Committee

proved that Plaintiff had an interest in the cheque. It is also important to note that by the

timelines between the video footage and when the customer who was a Defendant in the

case the Bank had filed at Court to retrieve the debt he owed and had used a copy of that
~ 46 ~
 cheque as an exhibit in the case. It became evident that Plaintiff had leaked that cheque to

the customer as he soon after tendered in his resignation but did not indicate how he was

going to co-operate with the Bank in its recovery effort. The Committee therefore concluded

that Plaintiff was aiding the customer and thus he was frustrating the Bank's effort to

recover the debt from the customer.

Q: Can you tell the Court what is written on the item the Plaintiff allegedly picked from that

office?

A: No My Lady.

The above proceedings goes to show that none of the witnesses of the Defendant could

say for a fact that they saw the Plaintiff photocopying a cheque. They allege that the

CCTV camera captured the Plaintiff making a photocopy but none of them saw the

Plaintiff photocopying the said cheque and the CCTV camera did not also show the

Plaintiff photocopying the said cheque. The Defendant could not give any evidence to

support the allegation that it was the Plaintiff who leaked the Donewell Insurance

Company cheque.

The Court which watched the CCTV footage in open Court will have to hold that the

Defendant's allegation that it was the Plaintiff who leaked the Donewell insurance cheque

is without basis. The Court agrees that provisions of the Evidence Act, 1975 (NRCD 323)

namely sections 13, 14 and 15 of NRCD 323 are inapplicable to the hearings before

internal disciplinary committee but when as in this case an issue is set down that borders

on fraud or criminality, the one that alleges same must prove same as per said sections,

with the higher burden but same was not done in this instance..

Whether or not Plaintiff is entitled to his reliefs.

~ 47 ~
In the case of ARKORFUL V STATE FISHING CORPORATION [1991] 2 GLR 348 the

court held as follows: "On the authorities, where a servant had been wrongfully dismissed from

his contract of employment, damages were to be measured by the amount of salary which the

servant had been prevented from earning by reason of the wrongful dismissal. The plaintiff was

therefore entitled to (i) all his salaries calculated from the date of his interdiction to the date of

judgment; (i) payment of three months' salary in lieu of proper notice; and (il) all his end of service

awards calculated from the date of his interdiction up to the date of judgment. The calculation of

his entitlements should be reckoned on the substantive post he held at his dismissal. He was also

entitled to damages for prospective loss of promotion and loss of employment. He had been kept

out of his employment for over ten years. If he had stayed in his job he would have earned his

promotion".

In this case, the issues 1 to 5 were resolved against Plaintiff whom the Court found was

negligent in his duties. Issue 6 was also partly resolved against him regarding the

negligence. Issues 7 and 8 which was the Defendant’s case was not upheld only because

regardless of the circumstantial evidence, the Court was of the opinion that the standard

set by Section 13 of NRCD 323 was not met which made the probabilities to be evenly

balanced thus. The Defendant in the opinion of the Court, exercised its right of employer

to dismiss the Plaintiff employee for his misconduct and incompetence as stated in the

plethora of authorities cited above. The Plaintiff was given an opportunity to be heard on

all allegations before he was dismissed and the audi alterem partem rule was not

breached. Before he was dismissed, the Plaintiff in any case had tendered in his

resignation. He is not entitled to any of his reliefs A to H in the candid and considered

opinion of the Court. The Court will dismiss the Plaintiff’s case accordingly in its entirety.

Cost of GHC5000 for Defendant.

[SGD]
~ 48 ~
 H/L JUSTICE DOREEN G. BOAKYE-AGYEI MRS. ESQ.

JUSTICE OF THE HIGH COURT

CASES CITED

MAJOLAGBE V. LARBI & OTHERS (1959) GLR 190-195 at 192

ZABRAMA vs. SEGBEDZI (1991) 2 GLR 221 at 246

KLAH VRS PHOENIX INSURANCE CO LTD [2012] 2 SCGLR 1139.

ACKAH VRS PERGAH TRANSPORT LTD [2010] SCGLR 728 at 736

GIHOC V. HANNAH ASSI [2005-2006] SCGLR 458 AT 485

ODAMETEY V. CLOCUH [1989-90] 1 GLR, 14;

ODONKOR V. AMARTEI [1993-94] GBR 59,

TUAKWA V. BOSOM [2001-2002] SCGLR 61

BANK OF WEST AFRICA LTD V. ACKUN [1963]1 GLR 176-182

FAIBI V. STATE HOTELS CORPORATION [1968] GLR 471-480

ALEX ONUMAH COLEMAN & ANOR VRS NEWMONT GHANA GOLD, CIVIL

APPEAL NO. J4/67/2019, delivered on 10 March 2021,

KOBI V MANGANESE CO. LTD. [2007-2008] SCGLR 771 at 786,

MORGAN V PARKNSON HOWARD LTD. [1961] GLR 68 at 70

ODURO V GRAPHIC COMMUNICATIONS GROUP LTD. [2017-2018] 2 SCGLR 112

HOLDING (2).

MOTOR PARTS TRADING CO. V NUNOO [1962] 2 GLR 195.

NKEGBE V. AFRICA MOTORS DIVISION OF UNITED AFRICA COMPANY OF

GHANA LIMITED [1978] GLR 32,

~ 49 ~
ESSIEN V. THE STATE [1965] GLR 44

TURKSON V. MANKOADZE FISHERIES LIMITED [1991] GLR 430

LAGUDAH VRS GHANA COMMERCIAL BANK [2005-2006] SCGLR 388

BANI VRS MAERSK GHANA LIMITED (2011] 2 SCGLR 796

AWUKU-SAO VRS GHANA SUPPLY CO LTD [2009] SCGLR 710,

KOBEAH VRS TEMA OIL REFINERY; AKOMEA-BOATENG VRS TEMA OIL

REFINERY (CONSOLIDATED) [2003-2004] SCGLR 1033

REPUBLIC VRS NATIONAL INVESTMENT BANK; EX PARTE CANTIL [1984-86] 1

GLR 237

KOBEAH AND OTHERS V TEMA OIL REFINERY; BOATENG AND OTHERS V

TEMA OIL REFINERY (CONSOLIDATED) [2003-2005] 1 GLR 485

REPUBLIC VRS GHANA RAILWAY CORPORATION; EX PARTE APPIAH [1981] GL

752,

ARYEE VS STATE CONSTRUCTION CORPORATION [1984-86] 1 GLR 424

388 ARKORFUL V STATE FISHING CORPORATION [1991] 2 GLR 348 t

~ 50 ~