BLAY-MORKEH v. GHANA AIRWAYS CORPORATION [1972] 2 GLR 254
HIGH COURT, ACCRA
Date: 12 FEBRUARY 1971
BEFORE: COUSSEY J.
CASES REFERRED TO
(1) Francis v. Municipal Councillors of Kuala Lumpur [1962] 1 W.L.R. 1411; 106 S.J. 833; [1962] 3
All E.R. 633, P.C.
(2) Vine v. National Dock Labour Board [1956] 1 Q.B. 658; [1956] 2 W.L.R. 311; 100 S.J. 73; [1956]
1 All E.R. 1; [1955] 2 Lloyds Rep. 531, C.A.
(3) Addis v. Gramaphone Co., Ltd. [1909] A.C. 488; 78 L.J.K.B.1122; 101 L.T. 466, H.L.
(4) Maw v. Jones (1890) 25;Q.B.D. 107; 59 L.J.Q.B. 542; 63 L.T.347; 54 J.P. 727; 38 W.R. 718
NATURE OF PROCEEDINGS
ACTION for a declaration that the dismissal of the plaintiff was wrongful and for general damages for wrongful dismissal. The facts are fully set out in the judgment.
COUNSEL
Dr. Ekow Daniels (with him Affom) for the plaintiff.
C. H. A Tetteh, Principal State Attorney. for the defendants.
JUDGMENT OF COUSSEY J.
The plaintiff’s claim in this action is for:
(1) A declaration that the purported dismissal of the plaintiff from the employment with the defendants by the personnel manager for and on behalf of the defendants on 31 August 1967 was illegal, ultra vires and void and ought to be set aside.
(2) Payment to the plaintiff of arrears of salary since September 1967 at the rate of ¢2,110 per annum
till date of judgment.
(3) ¢40,000 damages for wrongful dismissal from the defendants’ employment as senior sales
representative. The plaintiff said he was on 11 November 1958 employed by the defendants as a sales representative on a salary of £G510 per annum. Later he was promoted to the post of senior sales representative on a salary of £G725 per annum. In 1963, he received three incremental credits and his salary was increased to £G935 per annum. At the time of his dismissal he was on a salary of £G1,055 per annum. According to the plaintiff, annual incremental credits were made to his salary on satisfactory performance of duties. He said during the course of his employment confidential reports including exhibits A and B were made on him. Before his appointment was terminated, he belonged to the Ghana Airways Senior Staff Association and there was an agreement between the defendants and the association as to the procedure to be adopted for the purpose of dismissals. The terms of the agreement were that,
“when an employee has committed any act of misconduct or negligence he shall be given a written query with a copy to the Association Secretary. An employee who is so queried shall be offered the
[p.256] of [1972] 2 GLR 254 opportunity to submit a written reply explaining himself. A warning letter shall be sent if the offence warrants it, with a copy to the Association Secretary of the Union.”
The plaintiff said that on 31 August 1967 he was served with a letter (exhibit C) terminating his
appointment with the corporation. It was signed by their personnel manager, Mr. Brown. He said he was not given an opportunity of explaining his alleged unsatisfactory record which was the basis of his dismissal. He did not appear before the board of directors before he was sacked, and he has since not received any letter from the board about the termination of his contract.
The plaintiff admitted that he received £G8 from the Kumasi station in exchange for a cheque but he said the cheque was honoured when presented to the bank. He denied failing to account for the sum of £G57. He also denied that he failed to render due and proper account to cover the sum of £G360 voted in connection with an inaugural flight to Beirut. Exhibit D is the account he rendered. He denied receiving N¢8.40 in the form of a voucher in February 1967 to cover taxi expenses. He admitted that he refused to work under one W. P. Abankwa, a sales supervisor at Cocoa House, Accra, and he therefore sent a petition (exhibit F) with regard to it. He said that he submitted sales reports (exhibit G), and also reports on his junior staff and exhibit H is a copy of some of the queries sent to them. In continuation, the plaintiff said that he was not dismissed by the board of directors whose duty it was to dismiss officers on the scale of £G625. Subsequent to his dismissal, he got a letter (exhibit J) on 29 September 1967 from Mr. Brown to appear before a sub-committee of the board of directors. By that letter, he was supposed to appear before a new committee to look into the circumstances of his dismissal and he therefore appeared before the committee which questioned him. When cross-examined, the plaintiff said that he was on official duty that was why he made the claim in exhibit I, but he was not paid the amount in exhibit I because the commercial manager did not like him. The plaintiff said that he was not employed for a specific period and that up to 1965 employees of the defendants were allowed to receive cash from the defendants’ cashier in exchange of cheques. He also said he was not given any money to organise a dance at Takoradi but merely assisted by arranging for chairs. He however admitted that in July 1961, he organised the inaugural flight to Beirut and that the said flight was to touch down at Cairo, Beirut, Khartoum, Dakar, Abidjan, Conakry, Monrovia and London. He was authorised to draw any amount at any of these places to cover the expenses of the company. He arranged for and paid hotel bills for the party on the flight from the amounts he drew. The plaintiff said that he was aware of a dance organised in Accra in which he took care of the sales promotion. He was head of the committee for that dance. He gave a list of disbursements shown in exhibit I to Captain Wood. In 1963 he also applied for a loan from the defendants to pay for a bill [p.257] of [1972] 2 GLR 254 from the Housing Corporation and exhibits 2 and 3 were the application and the reply he received.
The plaintiff also admitted that he gave a loan to Mr. Gyamfi from the defendants’ funds on the authority of Mr. Krobo Edusei and that exhibit H is a query from the sales manager. The plaintiff said he was not affected by exhibit 4 and that he repaid the money he owed the defendants.
Mr. Michael Atu Wood testified on behalf of the defendants. He is the secretary for Ghana Airways. He said as corporation secretary he arranged for all board meetings. He also acted as secretary to
sub-committees of the board of directors. He said he knew the plaintiff. When the plaintiff was in the
employment of the defendants he was senior sales representative. He said at a certain board meeting held in August 1967, the managing director Mr. E. H. Boohene, who was also the chairman of the board of directors, brought a list of members of staff to the meeting with a recommendation for the termination of their services. In the case of the plaintiff, the termination of his contract was grounded on the fact that his record was very unsatisfactory. The board of directors considered the various recommendations. The reason for the plaintiff’s dismissal was contained in the minutes of 27 August 1967 (exhibit 5). In continuation Mr. Wood said that he also had a list of names of the employees who were classified as redundant. It is exhibit 6. The plaintiff’s name is in exhibit 6. The board, he said, gave reasons for the dismissal of the plaintiff. The decisions of the board were implemented by the managing director who delegated the decision to the personnel manager if it affected the staff. The board’s decision with regard to the plaintiff was implemented on 31 August 1967 when the personnel manager was instructed by the managing director to write to the plaintiff. The letter is exhibit C. The particular board of directors which gave the decision was dissolved on 13 September 1967 and a new board was appointed on that date. It had three of the former members on it. The new board of directors considered the dismissals by the former board and decided to review the question of the dismissals. A sub-committee was therefore appointed. The committee submitted a report which is exhibit 7. The recommendations by the sub-committee were accepted on 19 March 1968. The minutes of the meeting are exhibit 8. The plaintiff appeared before the sub-committee. Mr. Wood in his evidence further said that he was not aware of any agreement between the Senior Staff Association and Ghana Airways, the defendants. The Senior Staff Association was formed in 1968 or 1969. He also testified that the defendant corporation was incorporated under the Ghana Airways Corporation Instrument, 1965 (L.I. 432). Mr. Wood said that as a member of the senior staff, the plaintiff should have been given three months’ notice before his dismissal.
He said there were reports on the plaintiff about his work in general which he saw himself. Under
cross-examination Mr. Wood said that the report sent by the managing director to the board of directors was about re-organisation and that [p.258] of [1972] 2 GLR 254 there was no direct authorisation to the managing director by the board to compile a list of persons to be dismissed. The board however approved the dismissals including that of the plaintiff. He said the board did not call the plaintiff to answer any queries. A press release was made on 10 September 1968 which is exhibit 9. He said because of the plaintiff’s position on the staff he could only be dismissed by the board of directors, and that it would be wrongful for anyone to be dismissed except by the board.
The question to be decided is whether the purported dismissal of the plaintiff by a letter dated 31 August 1967 and signed by the defendants’ personnel manager was illegal, ultra vires and void; and if it was so (1) whether in the circumstances a declaration to that effect should be made and (2) whether if the plaintiff has any remedy at all, it lies in damages only. From the evidence before the court it is undisputed that the plaintiff was employed by the defendant on 11 November 1958 and that at the time of his dismissal on 31 August 1967 he was a senior sales representative. According to him, his services had been so satisfactory that he had reached the maximum of his emoluments, earning £G1,055 per annum.
The letter (exhibit C) purporting to dismiss him is headed “Re-organisation” and is in the following terms: “In pursuance of the Corporation’s policy to rid the Corporation of unsatisfactory staff, the management has been studying your record and has come to the conclusion that it can no longer sustain you in its employment due to your unsatisfactory service record.
It has consequently been decided to terminate your employment with the corporation with immediate effect.
It is realised the termination under such circumstances requires a three months’ notice and as the Corporation is unable to give you such a notice it is requesting the chief accountant by a copy of the memo to pay you three months’ salary in lieu thereof. ”The letter was signed by G. F. Brown who was personnel manager. The evidence in this case is that the plaintiff being a senior sales representative, could only be dismissed by the board; and that it would be wrongful for anyone to be dismissed except by the board. It is indeed curious why what was to be a “re-organisation” was used to terminate the appointment of the plaintiff.
According to the witness for the defence who said he was secretary to the managing director of the
defendants, there was no direct authority by the board to compile a list of persons to be dismissed. The plaintiff was not even called to answer any queries.
The plaintiff contended that by the terms of an agreement between the Ghana Airways Ltd. and the Ghana Airways Senior Staff Association it was agreed that, “when an employee had committed any act of misconduct or negligence he shall be given a written query with a copy to the association secretary. An employee who is so queried shall be offered the opportunity to submit a written reply explaining himself. [p.259] of [1972] 2 GLR 254 A warning letter shall be sent if the offence warrants it with a copy to the Association Secretary of the Union. ”The plaintiff did not satisfy the court that there was such an agreement. However, if he was dismissed without the authority of the board then it can safely be said that his dismissal or the termination of his contract was wrongful. What, therefore, were the circumstances leading to the dismissal of the plaintiff and others from the services of the defendants? According to the defence witness, Michael Atu Wood, at a certain board meeting held in August 1967, the managing director who was also the chairman of the board brought a list of the names of members of staff with a recommendation for termination of their services. Exhibit 6 was the list of those who were not to be placed with the new organisation. The minutes of that meeting are exhibit 5. It was there stated under the heading of cases of redundancy and staff with unsatisfactory record:
“Members gave approval to the proposal to terminate the appointments of the members of staff recently classified as either redundant or having unsatisfactory record.
It was suggested that the best way to deal with the problem was to organise courses of instruction for such staff and to conduct a test at the end of the course. All those who failed would then be asked to leave. The chairman undertook to report on the re-creation of the management”
It was really after the minutes contained in exhibit 5 had been recorded that the letter of dismissal exhibit C was received by the plaintiff. It is clear from exhibit 6 that there was only a proposal to terminate the appointment of members of staff classified as either redundant or having an unsatisfactory record if they failed a test after attending courses of instruction. I do not find on the evidence that the board decided that persons listed in exhibit 6, with the plaintiff heading the list, should be dismissed. It is therefore manifestly clear that the letter sent by the personnel manager to the plaintiff on 31 August 1967 was without foundation; and without mincing words I would describe it as fraudulent. It is indeed clear that the board did not give authority for the dismissal. What happened next was that the board of directors which could have perhaps terminated the plaintiff’s employment with the defendants was dissolved on 13 September 1967 and a new board of directors was appointed on that day.
What the new board of directors did about the dismissals is shown at p. 6 of exhibit 7. A sub-committee which was appointed dealt with the case of the forty persons dismissed on 31 August, 1967. This sub-committee held the view that most of the staff affected by the dismissals were in actual fact dismissed not because they were inefficient but because they were redundant. They noted also that those 40 persons were arbitrarily selected from a list of 76 originally presented to the board and that 36 persons whose names appeared on that list were still [p.260] of [1972] 2 GLR 254 working with the corporation. However, the committee recommended that: “In the interest of justice and fair play the sub-committee recommends that twenty-six of the forty dismissed persons should be recalled because the records of these twenty-six persons do not support the charge of poor and unsatisfactory service made against them. The balance of fourteen who had either very unsatisfactory records or were below average in performance should not be re-called. Those not to be recalled are shown in appendix L. The plaintiff’s name was included in appendix L.
When the board met on 19 March 1968 as shown at p. 8 of exhibit 8, they voted on the question of the re-instatement of the 26 persons. All the other recommendations of the sub-committee were accepted. It is in this vein that the defendants amended their paragraph (7) of their statement of defence to read as follows: “(7) the defendants deny that the plaintiff is entitled to any of the reliefs claimed in paragraph (5) of the statement of claim or at all. The defendants will aver that the plaintiff’s dismissal by the management on behalf of the defendants was ratified by the defendants on 19 March 1968 and as such the defendants deny that the said dismissal was illegal, ultra vires and void as alleged by the plaintiff. ” I cannot support the view held by counsel for the defendants that even if the letter exhibit C dismissing the plaintiff was wrongful it was ratified by the new board. What the new board did was to discuss the question of the dismissals by the old board. If the new board at their meeting on 19 March 1968 had listened to Mr. Victor Owusu who remarked that “it was clear that the board did not give authority for the dismissals,” a new line of action could have been taken to avert the situation. The re-constituted board then instead of considering the cases of redundancy and staff with unsatisfactory record who were dismissed as such, perhaps could have taken a completely fresh decision on the matter. I do not see how an illegal act which is void ab initio can be ratified by the subsequent act of a completely different person.
This of course would be absurd. The dismissal of the plaintiff therefore in my considered opinion was
wrongful.
The question now arises whether in the circumstances a declaration to that effect should be made by the court. By Order 25, r. 5 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A):
“No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed, or not.”
In the case of Francis v. Municipal Councillors of Kuala Lumpur [1962] 1 W.L.R. 1411, P.C. it was held as indicated in the headnote that: [p.261] of [1972] 2 GLR 254 “[W]here there had been a purported termination of a contract of service, a declaration to the effect that the contract still subsisted would rarely be made, since the general principle of law was that the courts would not grant specific performances of contracts of service unless special circumstances could be shown.”
In my view there are no special circumstances in this case which would make it either just or proper to make such a declaration. The plaintiff has in fact not been able to satisfy the court that his contract of service with the defendants gave him any status with special privileges attached thereto. He cannot, in the circumstances, be granted the declaration sought. The plaintiff’s remedy lies in damages only and as Jenkins L.J. said in Vine v. National Dock Labour Board [1956] 1 All E.R. 1 at p. 8, C.A., “In the ordinary case of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract, and a claim for damages arises. It is necessarily a claim for damages and nothing more.” The plaintiff’s employment therefore must be treated as having come to an end on 31 August 1967. Since the dismissal of the plaintiff was wrongful on the ground that the purported letter of dismissal exhibit C was unauthorised, I have refrained from considering whether it was true or not that his dismissal was due to an unsatisfactory record on his part.
Defence counsel submitted that if any damages were to be awarded at all, the quantum of damages should be limited to the time when notice should have been given. But it is stated that damages are to be measured by the amount of wages or salary which the servant has been prevented from earning by reason of his wrongful dismissal: See Halsbury’s Laws of England (3rd ed.), Vol. 25, p. 523, para. 995. See also Mayne and McGregor on Damages (12th ed.), pp. 522-523. It is unchallenged that the plaintiff was receiving N¢2,110 per annum and was at the date of trial unemployed. It is the duty of the plaintiff to make efforts in mitigation of damages to secure comparable employment elsewhere. Of course the defence did not discharge the burden of proof that he could have secured an equivalent position elsewhere. But I am quite sure that the plaintiff from the look of him cannot be said to be without sustenance from some quarters. I am quite sure he has not been living on charities since his wrongful dismissal on 31 August 1967. However, since damages are his remedy in this action, I have to take into account his normal prospects. At least he would have been in the employment of the defendants for another ten years earning the salary he was receiving at the date of his dismissal. In the case of Addis v. Gramophone Co., Ltd. [1909] A.C. 488, H.L. it was held that where a servant is wrongfully dismissed from his employment, the damages for his dismissal cannot include compensation for the manner of the dismissal, or his injured feelings or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain employment. However, there is an expression of Lord Coleridge C.J. in Maw v. Jones (1890) 25 Q.B.D. 107, as authority to the contrary.
[p.262] of [1972] 2 GLR 254 In view of the contrary views expressed on what considerations should influence the award of damages for wrongful dismissal, I hold the view that damages should be awarded up to such reasonable time that perhaps the dismissed servant can very well find alternative employment taking into consideration the employment situation in the country. It is well known these days that jobs are not easy to come by. The plaintiff has not indicated also that he has made efforts to find employment. It is so easy for some to think that the longer they stayed out of work the more would be the damages to be obtained. I think ¢4,330.00 should be an adequate award of damages for the plaintiff’s wrongful dismissal by the defendants.
The plaintiff succeeds against the defendants in his claim which is assessed at ¢4,330 for damages for wrongful dismissal. Costs to be fixed ¢400 inclusive of counsel’s fee.
DECISION
Judgment for the plaintiff.
S. O.
