GHANA HIGHWAY AUTHORITY vs. MENSAH [1997-1998] 2 GLR 693

CASES REFERRED TO

(1) Kwakye v Attorney-General [1981] GLR 9, SC.

(2) Dixon v Deveridge (1825) 2 C&P 109.

(3) Chaplin v Hicks [1911] 2 KB 786; 80 LJKB 1292; 27 TLR 458, CA.

(4) Biggin & Co Ltd v Pemanite Ltd [1951] 2 KB 314; [1951] 2 All ER 191; [1951] 2 TLR 159, CA. (5) Beckham v Drake (1849) 2 HLC 579.

(6) Ghana National Trading Corporation v Baiden [1991] 1 GLR 567, SC.

(7) Presbyterian Hospital, Agogo v Boateng [1984-86] 2 GLR 381, CA.

(8) Lever Brothers Ghana Ltd v Annan; Lever Brothers Ghana Ltd v Dankwa (Consolidated)

[1989-90] 2 GLR 385, CA.

(9) Aryee v State Construction Corporation [1984-86] 1 GLR 424, CA.

(10) Republic v Ghana Airways Corporation; Ex parte Appiah [1981] GLR 752.

(11) Ridge v Baldwin [1964] AC 40; [1963] 2 WLR 935; [19631 2 All ER 66, HL.; [1997-1998] 2 GLR GHA v Mensah 697 [p.697] of [1997-1998] 2 GLR 693 (12) Ghana Cocoa Marketing Board v Agbettoh [1984-86] GLR 122, CA.

(13) Hemans v Ghana National Trading Corporation [1978)] GLR 4, CA.

(14) Nartey-Tokoli v Volta Aluminmum Co Ltd (No 2) [1989-90] 2 GLR 341, SC.

(15) Heloo v Tetteh [1992] 2 GLR 112.

(16) Riches v Westminster Bank Ltd [1943] 2 All ER 725, CA.

(17) London Chatham and Dover Railway Co v South Eastern Railway Co [1983] AC 429, HL. (18) Ghana Commercial Bank v Binoo-Okai [1982-83] GLR 74.

(19) Arnmartey v Social Secuirty Bank Ltd; Social Security Bank Ltd v Robertson (Consolidated)

[1987-88] 1 GLR 497, CA.

(20) Royal Dutch Airline (KLM) v Farmex Ltd [1989-90] 2 GLR 632, SC.

APPEAL from judgment of the Circuit Court, Accra in favour of the respondent in an action for wrongful dismissal. The facts are sufficiently set out in the judgment of Ofori-Boateng JA.

Quarshie for appellant.

Odartey Lamptey (for Ayikoi Otoo) for respondent.

Ofori-Boateng JA. The appellant, Ghana Highway Authority, has appealed against the decision of the Circuit Court, Accra, presided over by His Honour Alhaji Nuhu Billa.

The facts of the case are that the appellant, in 1966, employed the respondent, Mr Peter Tetteh Mensah. He was in the appellant’s employment until 27 June 1984 when he was summarily dismiss ed, without the appellant telling him what he had done wrong. He therefore sued for wrongful dismissal. On his writ the respondent claimed as follows:

“(a) Damages for wrongful dismissal from employment of the defendant dated 27 June 1984.

(b) An order for reinstatement with consequential changes in designation and salaries in the employment of the plaintiff.

(c) Order for payment of arrears of salary from 27 June 1984 up to date of reinstatemrnent.”

[p.698] of [1997-1998] 2 GLR 693

The appellant also filed a defence that indeed it dismissed the respondent, but that the dismissal was not wrongful because the “dismissal was upon adverse findings made against him by a committee of inquiry set up by the Provisional National Defence Council (PNDC) Secretary for Roads and Highways.” That the white paper on the committee of enquiry found the respondent to be guilty of gross incompetence.

After filing its defence, the appellant never went to the court to defend the case against it. As a result, the court had to adjourn this case sixty-six times. Finally, the judge decided that the case should go on without the appellant. The respondent stated his case and judgment was given in his favour as follows: (1) ¢5 million against the appellant as general damages; (2) reinstatement of the respondent since the dismissal was wrongful; (3) that the appellant should pay the respondent arrears of his salary from the day of dismissal until the day of reinstatement. It is against this decision that the appellant has appealed.

Counsel for the appellant dealt first with ground (ii) of the additional grounds of appeal, to wit that: “The trial judge erred in law in ordering a reinstatement and consequential change in designation and salaries.” In demanding that he should be reinstated, the respondent relied heavily on article 155 (b) of the Constitution, 1979 which reads as follows: “No member of the Public Services shall be dismissed or removed from office or reduced in rank from office, or otherwise punished withOout just cause.” (The emphasis is mine.) Therefore if the respondent was a public officer, which he was, and had been dismissed unlawfully, then under article 155 (b) of the provision of Constitution, 1979 he should be reinstated.

Counsel for the appellant insisted that no question of reinstate ment exists because at the time that the respondent was dismissed, the Constitution, 1979 had been repealed by a revolutionary government, the Provisional National Defence Council (PNDC), by the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (PNDCL 42), s 66 (1). The respondent therefore has to fall back on the usual common law principle relating to unlawful dismissal, compensation, and not reinstatement. I agree with counsel for the appellant. In fact at common law the courts on thec whole are chary about imposinmg dismissed servantiia.s back on their

[p.699] of [1997-1998] 2 GLR 693 former masters. I accordingly set aside the trial court’s order of reinstating the respondent, and in its place impose a reasonable compensation which I will deal with later when considering the original grounds of appeal.

Counsel for the appellant next argued ground (1) of the additional grounds of appeal; namely: “That the trial judge erred in law in pronouncing the dismissal of the respondent wrong and awarding remedies on it.” The argument of the appellant’s counsel was that by virtue of the Constitution, 1992, the court had no power to try the Highway Authority, let alone impose any punishment on it for a wrongful doing. The provision in Part IV has retrospective effect and so it would affect the appropriate events that took place in 1984, the year in which the respondent was dismissed. The relevant portion of the Constitution, 1992 is set out in extenso in section 34 (2) of Part IV, Miscellaneous Provision as follows:

“2. It is not lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceeding instituted against the Government of Ghana or any person acting under the authority of the Government of Ghana whether before or after the coming into force of this Constitution or against any person or persons acting in concert or irnjindividually to assist or bring about the change in Government which took place on the twenty-fourth day of February 1966 and on the thirteenth day of January ,1972, on the fourth day of June 1979 and on the thirty-first day of December 1981 in respect of any act or omission relating to, or consequent upon— (a) the overthrow of the government in power before the formation of the National Liberation Council, the National Redemption Council, the Supreme Military Council, the Armed Forces

Revolutionary Council and the Provisional National Defence; or

(b) the suspension or abrogation of the Constitutions of 1960, 1969 or 1979; or

(c) the establishment of the National Liberation Council, the National Redemption Council, the Supreme Military Council which took office on the ninth day of October 1975, the Supreme Military

[p.700] of [1997-1998] 2 GLR 693

Council established on the fifth day of July 1978, the Armed Forces Revolutionary Council, or the Provisional National Defence Council; or (d) the establishment of this Constitution.

(The emphasis is mine.) In my view, that part of the Constitution referred to has no relevance to the question in issue. The appellant itself avers that the inquiry the PNDC Secretary of the Ministry of Roads and Highway, Accra ordered to be conducted was a “Committee of Inquiry into the Administration of the Ghana Highway Authority Training School, Shai Hills.” The so-called white paper which emerged from this inquiry found the respon dent to be “incompetent.” The inquiry was not ordered in connect ion with or as a consequence of any of the topics mentioned under section 34 (2) (a),(b), (c ) and (d) of the transitional provisions of the Constitution, 1992. In other words, the committee of inquiry instituted into the administration of the Ghana Highway Authority Training Centre in the Shai Hills with the resulting dismissal of the respondent was not instituted and made as the consequence of the overthrow of the government in power, or suspension, or abro gation of the Constitutions of 1960, 1969 and 1979 or the establi shment of the National Liberation Council etc or the establishment of the Constitution, 1992. This dismissal has nothing constitu tional about it regarding the various revolutionary governments and their establishments and activities. I accordingly dismiss that argument, as misleading and not accurate.

The most proper and appropriate section of Part IV of the Constitution, 1992 which I believe could be relevant to the facts of the case, but which none of the contestants referred to, is section 34 (5) of the transitional provisions of the Constitution, 1992 which provides:

“5. It is not lawful for any court or tribunal to entertain an action instituted in respect of an act or omission against a person acting or omitting to act, on the instructions or authority of the Provisional National Defence Council or the Armed Forces Revolutionary CouncilorCouncillor a member of the Provisional National Defence Council or the Armed Forces Revolutionary Council and alleged to be in contravention of any law, whether substantive or procedural, in existence before or during the administration of the Provisional

[p.701] of [1997-1998] 2 GLR 693

National Defence Council or the Armed Forces Revolutionary Council.”

I however find this provision difficult to apply, having regard to the law and the facts of the case. I hold that it is an elementary principle in pleading that anybody who wants to rely on the provisions of a statute in a litigation should plead that statute. Also, it is another elementary rule that what has not been pleaded, particularly an essential point in the case, cannot be established by evidence. It is also another rule in pleading that an unpleaded fact, if allowed in evidence, will be a surprise to the other party and so cause an unfair and serious prejudice to him. In this case, the appellant did not plead the constitutional provision and if it had pleaded it at all, it would have raised it for the first time at the appeal, a practice which the courts do not tolerate, as an appellant cannot appeal against a point he never raised at the trial court.

Another obstacle to the successful use of this provision, if it had been referred to, is that the appellant did not in any way bring itself properly under it. By paragraph (2) of exhibit A which was a letter written to the respondent by the appellant, the latter claimed that it had received instructions from the government that the respondent “should be summarily dismissed from the service of the Authority with immediate effect. This in effect, means that you are to forfeit all your terminal benefits save that of your social security contributions.” Since the appellant is claiming immunity from liability by virtue of a statute, the burden is on it to establish the immunity by proving that indeed it was acting under the authority of the State: see Kwakye v Attorney-General [1981] GLR 9 at 14, SC. The appellant should have led evidence to show that the government ordered a committee of inquiry into the administration of the training centre of the authority; and that, indeed, a white paper instructed the appellant to dismiss the respondent summarily. The appellant did not produce evidence of the government having appointed any such committee of inquiry. This could have been done by producing in evidence either an executive instrument, legislative instrument or an ordinary written instruction from the Armed Forces Revolutionary Council (AFRC) to the Ministry of Transport or from the Ministry of Transport to the authority. The proceedings of such a committee could have been exhibited showing clearly that the respondent was examined and qciuestioned at the co mmittee of inqauirvy. The white

[p.702] of [1997-1998] 2 GLR 693 paper which instructed that the respondent should be dismissed summarily, could have been exhibited, showing clearly that such a paper was written and that the dismissal was in it.

In the absence of these pieces of evidence, the question of credibility to the appellant’s self-serving assertions become extremely suspect. I really have no reason to believe that the government put any pressure on or ordered the transport authorinty to dismiss the respondent summarily. The illegality of the dismissal can therefore not be covered up by the immunity from legal action under the Constitution, 1992 as provided by Part IV, s 34 (5). Accordingly, I uphold the conclusion of the lower court that the appellant dismissed the respondent unlawfully and so is liable to pay damages to him.

I will now deal with grounds (ii) and (iii) of the original grounds of appeal together. The original grounds (ii) and (iii) read as follows:

“(i) That the trial judge erred in law in making the order for the payment of damages for dismissal.

(ii) That the trial judge erred when, by way of damages, he awarded an amount which is excessive and unwarranted in law.”

McGregor on Damages (15th ed), para 343 states the circumstan ces under which the courts award damages, nominal or substantial. It states as follows:

“A plaintiff claiming damages must prove his case. To justify an award of substantial damages he must satisfy the court both as to the fact of damage and as to the amount. If he satisfies the court on neither, his action will fail and at the most he will be awarded nominal damages where a right has been infringed. If the fact of damageisdamages shown, but no evidence is given as to its amount so that it is virtually impossible to assess the damage, this will generally permit an award of nominal damages; this situation is illustrated by Dixon v Deveridge (l825,)2 Cf. 109.”

In Dixon v Deveridge (supra), there was evidence that an amount was due from the defendant. The plaintiff however could not give any evidence as to how much was due. The court therefore gave the plaintiff nominal damages. On the other hand, where no cleatr and specific damage can be shown, but it is clear that some

[p.703] of [1997-1998] 2 GLR 693 substantial loss has been incurred by the plaintiff, the fact that this uncertainty exists will not be a reason in law for awarding no damages or mere nominal damages. Thus in Chaplin v Hicks [1911] 2 KB 786, Vaughan William LJU said “. . . the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.” Also in Biggin & Co Ltd v Pemanite [1951] 1 KB 432 at 438, Lord Devlin said that when the damages cannot be calculated precisely, rather than relieve the wrongdoer of the necessity of paying damages “the court must do the best it can.”

It would appear then that what the courts use to determine whether damages should be nominal or substantial are usually reasonableness and the circumstances of each case, and that is what I intend doing. In this appeal, after proving that he had been dismissed unlawfully, the respondent did not disclose or otherwise establish the salary he was receiving as a chargeman. The normal way of measuring damages in a case of unlawful dismissal is, pnrima facie, the amount of money that the plaintiff would have earned had the employment continued according to the contract, together with terminal benefits, minus any amount the dismissed person would earn after he had obtained another job. This is so, because as soon as a person is dismissed from his employment, he has to mitigate his loss by immediately looking for a suitable employment of the same nature or of similar salary. The necessity to find another reasonable work is illustrated by Earl J in Beckmant v Drake (1849)12 HLC 579 thus:

“The measure of damages is obtained by considering what is the usual rate of wages for the employment . . . and what time would be lost before a similar employment could be obtained. The law considers that employment in any ordinary wages for such employment can be proved, and that it is the duty of the servant to use diligence to find another employment.”

(The emphasis is mine.) Thus a person dismissed unlawfully from his work cannot wait forever, or for an unreasonable length of time, and expect to be compensated by his former employer for all that time.

Taking the facts. of this appeal, it may be noted that although the respondent did not establish even his monthly salary for the court to calculate the deserving damages, it is obvious that by depriving the respondent of his job and salary as well as his end of service [p.704] of [1997-1998] 2 GLR 693 benefits, the appellant caused the respondent to suffer substantial injury. The respondent therefore should be paid substantial damages, not merely nominal damages. The court, as Lord Devlihn said, “must do the best it can,” rather than relieve the wrongdoer.

The award of ¢5 million which the trial judge gave to the respondent as damages was clearly arbitrary. The trial judge did not indicate how he arrived at that figure without knowing the salary of the respondent at the time. He did not indicate the reasonable time within which the respondent was expected to be looking for a job of comparable nature. He did not indicate whether the respondent is now working. In my view, the damages of ¢5 million were unjustifiable and I agree with the appellant thati they were excessive.

To find a reasonable compensation for the respondent, I would like to consider the salary being earned by the respondent when he was dismissed on 27 June 1984. Also, I have calculated that iti would take him about two years to look for a comparative job, having regard to the conditions of the employment situation at the time: see Ghana National Trading Corporation v Baiden [1991] 1 GLR 567, SC. The calculation is as follows:

Annual salary due to respondent with interest;

27 July 1984 – 26 July 1985;

27 July 1985 – 26 July 1986; plus the end of employment benefits which were forfeited.

It is ordered accordingly that within fourteen days, the defendant- appellant should indicate to the registrar the annual salary the respondent would have earned between 27 July 1984 and 26th July 1986, including any increments within that period. The registrar should compute the amount, and it will be the general damages due to the respondent. Under these circumstances therce cannot be any arrears of salary as awarded by the4 trial judge. Thati award is accordingly set aside. The costs of ¢100,000 awarded by) the lower court is approved and affirmed.

In summary, the appeal is dismissed with costs and (1) the respondent is entitled to general damages yet to be calculated by registrar plus the statutory interest, bank rate at simple interest, plus all terminal benefits; (2) he will not be reinstated; and (3) there is no reason why the costs awarded should be interfered with by this court.

[p.705] of [1997-1998] 2 GLR 693

Wood JA. I agree with the opinions expressed by my brethren and have nothing useful to add to them.

Brobbey JA. The respondent was employed by the appellant as a chargeman mechanic from 1960 to 1984 when he was dismissed. The letter dismissing him exhibit A read simply as follows: “GHANA HIGHWAY AUTHORITY HEAD OFFICE PERSONNEL DIVISION PO BOX 1611, ACCRA 27 JUNE 84 GHA/CONF/SF 128/22 Dear Sir, WHITE PAPER ON THE INTERIM REPORT ON THE COMMITTEE OF ENQUIRY INTO THE

ADMINISTRATION OF THE GHA TRAINING CENTRE

AT SHAI HILLS

I write to inform you with regret, that Government has accepted the adverse findings made against you in the above report.

(2) Consequently, Government has directed that you should be summarily dismissed from the service of the Authority with immediate effect. This, in effect, means that you are to forfeit all your terminal benefits save that of your social security contributions.

(3) You are to hand over your present duties immediately.

(4) Please acknowledge receipt.

Yours faithfully (Sgd)

CHIEF EXECUTIVE (HOA QUAYNOR)

MR PETER T MENSAH CHARGEMAN THRO’ THE AG CHIEF OF TRAINING GHANA HIGHWAY AUTHORITY ACCRA.

[p.706] of [1997-1998] 2 GLR 693 cc The PNDC Secretary Minm of Roads & Highways, Accra The Chief Accountant The Chief Internal Auditor Conf “P” File Open “P” File”

Aggrieved by the dismissal, the respondent issued a writ of summons in the Circuit Court, Accra claiming:

“(a) Damages for wrongful dismissal from the employment of the defendants dated 27 June 1984.

(b) An order for reinstatement with consequential changes in designation and salaries in the former employment of the plaintiff.

(c) An order for payment of arrears of salary from 27 June 1984 up to date of reinstatement.”

The rather unfortunate attitude of the appellant’s officials towards the respondent’s claim was demonstrated from the very inception of the litigation. Appearance was filed on its behalf. For several weeks thereafter no further action was taken on its behalf. The respondent then took a summary judgment against it. The appellant’s solicitors proceeded to set it aside. A defence was then filed on its behalf. Once more, the officials of the appellant took no steps in the case, in spite of numerous service of processes on them. The case was tried in their absence and eventually a default judgment was given against the appellant. Again, the appellant went back to court and applied to set aside the judgment but that application was dismissed. It then appealed to this court against the default judgment.

Three grounds of appeal were originally filed. Two additional grounds were later filed. To my mind, the most serious ground of appeal was this: According to the appellant, the dismissal of the respondent was on the instructions of the Provisional National Defence Council (PNDC) Government. Actions of the PNDC were indemnified under section 34 of the transitional provisions of the Constitution, 1992. It was the contention of the appellant that its dismissal of the respondent was indemnified, being an act done in carrying n out the instructions of the PNDC or under its authority.

[p.707] of [1997-1998] 2 GLR 693

In its statement of defence, the appellant averred in paragraph (6) that the respondent was dismissed: “upon the acceptance by government in a white paper of findings of gross incompetence made against him. And that the findings of gross incompetence were made against him by a committee of inquiry before which he appeared and adequately stated his case.”

The appellant could never have been in any doubt that the respondent had at all material times challenged the basis of his dismissal. As soon as the defence was filed, he replied by stating that he joined issues with the appellant on its defence. Prior to the court action, he had applied in exhibit C for a copy of the report of the alleged committee of inquiry. He never received the report and the appellant confirmed this in paragraph (4) of the statement of defence in which it stated that: “The defendant was not obliged nor was it in the position to grant the requests.”

Since the only defence in favour of the appellant was what appeared in the pleadings, that defence will be considered. By stating that it was not obliged to supply the respondent with a copy of the report on the committee of inquiry and by not exhibiting a copy of the white paper, the appellant took the position that it was under no obligation to inform the respondent why he was dismissed or even give the respondent a hearing before his4 dismissal.

The view taken by the appellant that as employers they are under no obligation to give an employee a hearing before dismissing him or even to inform him of the reasons for being dismissed seems to stem from the misapplication of a number of cases in the law reports, notably Presbyterian Hospital, Agogo v Boateng [1984-86] 2 GLR 381, CA; Lever Brothers Ghana Ltd v Annan; Lever Brothers Ghana Ltd v Dankwa (Consolidated) [1989-90] 2 GLR 385, CA; Aryee v State Construction Corporation [1984-86] 1 GLR 424, CA; Republic v Ghana Airways Corporation; Ex parte Appiah [1981] GLR 752. What appears to be a direct authority on the proposition that the employee need not be heard before being dismissed is Aryee v State Construction Corporation (supra). The employee in that case was however written to by the board. He replied, offering answers, explanations and justification for his conduct; but upon “sober reflection” he withdrew the allegations and insinuations

[p.708] of [1997-1998] 2 GLR 693 and apologized. The board thereafter dismissed him without a formal hearing. On these facts, the withdrawal by the employee clearly showed that he had thrown in the towel which virtually amounted to admission of the allegations made against him.

In civil litigation, a case does not proceed to hearing if the defendant admits liability and apologises. Similarly, in criminal cases, a case does not proceed to hearing if the suspect pleads guilty. In both civil and criminal cases the action will be disposed of on the facts before the court. In that case therefore, after the withdrawal and apology, the employer was perfectly entitled to proceed and dispose of the case by taking the appropriate decision. If that decision resulted in a dismissal without a formal hearing, that procedure is justifiable by the facts of the case. That kind of dismissal cannot be cited as authority for the general proposition that an employee can be dismissed without a hearing. A hearing becomes unnecessary where the allegations are not disputed or controverted.

In Presbyterian Hospital, Agogo v Boateng (supra) a pregnant woman was admitted to the hospital to deliver a baby. While the baby was coming down, she shouted to the duty nurse for help. Instead of help, the duty nurse insulted her and slapped her twice. The baby fell on the floor. The duty nurse cut the umbilical cord and left the baby in a pool of blood. The baby was picked up by another nurse. The duty nurse then ordered the mother to clean the floor of the placenta and the blood. When the duty nurse was invited to her matron’s office the next day, she was quite rude and insulting. To cap it all, she refused to answer a query sent to her. On these facts, it was held on appeal that the hospital was justified in dismissing her without a formal hearing. Then in Lever Brothers Ghana Ltd v Annan (supra), some employees paid for and collected for themselves a large quantity of items earmarked fort the Kumasi Brewery Limited in Kumasi, a customer of the defendant company. They were dismissed without formal hearing. On appeal it was held that the coniiduct of the employees were such that the employer could justifiably dismiss them without giving them a hearing.

The principle which emerges from these cases is that where the reason for dismissal is known and the conduct of the employee is so depraved or so outrageous that no reasonable employer could be expected to continue employing him, he may be summarily dismissed without being given a hearinng. It is certainly wrong to

[p.709] of [1997-1998] 2 GLR 693 cite these cases as authorities for the blanket proposition that the authorities show that an employer can dismiss an employee without giving him a hearing or the reasons for the .dismissal, as appears to be the position taken by the appellant in the instant case. Since the respondent in this case was not given the reasons for his dismissal, it cannot be said that the facts of his dismissal were so depraved or so outrageous as to provide justification for his dismissal without being heard.

Another significant principle emerging out of these cases was that where the employer dismisses the employee without a hearing, the employer should be able to establish that the dismissal can be vindicated on the facts. That was one of the holdings in the Level Brothers case (supra) (at 289) which in turn applied Presby- terian Hospital, Agogo v Boateng (supra).

The onus is on the employer to have established the facts which would justify or vindicate the dismissal. In the instant case, no evidence was led in support of the defence of the appellant. The only justification offered in this appeal is the fact that the respondent was dismissed by a white paper issued by the Provisional National Defence Council (PNDC) Government which was itself based on the report of a committee of inquiry. Neither the proceedings of the committee nor the report of that committee were exhibited at the trial court. Even the white paper was never tendered at the trial court nor exhibited in this appeal. The blunt statement in the letter of dismissal, exhibit A, that the respondent was dismissed on the instruction of the PNDC Government in a white paper based on a committee report did not amount to any proof of a white paper, a committee of inquiry or report of any committee. This was particularly the case where the respondent stoutly challenged the basis of his dismissal by this court action.

The use of the alleged white paper as vindication for the dismissal of the respondent was therefore indefensibly flawed. There was no proof that the respondent was dismissed on the instructions of the PNDC Government in any white paper. In the absence of proof of the white paper or instructions from the PNDC Government, the indemnity clause in the Constitution, 1992 cannot be invoked to justify the actions of the appellant in dismissing the respondent. For the foregoing reasons, the indem- nity clause does not simply apply to the facts of this case. In his evidence at the trial the respondent stated that the appellant never reprimanded him while he was in its employment. No one testified

[p.710] of [1997-1998] 2 GLR 693 for the appellant to deny or even controvert that statement. He averred further that: “I1 do not know the reasons for which I was dismissed.” He added that he was invited to attend a committee of enquiry but when he did attend the secretary to this committee informed him that a different date would be given to him to attend later. The committee never sat on that day or any other day. No date was given to him again to attend any committee of inquiry. All these stood unchallenged on the record since no one testified on behalf of the appellant to controvert them.

In this appeal the appellant has accepted the position which transpired in the trial court because it is not part of its case that it should be permitted to go back to restate its case by an order for retrial. The result of all these is that on the record the appellant dismissed the respondent without showing or proving any basis or reason for the dismissal.

The dismissal was not investigated either. The trial judge was consequently right in his finding that the respondent’s dismissal was wrongful. The conclusion of the trial judge that the respondent was wrongly dismissed is further buttressed by well-established principles of natural justice as epitomised in the latin maxim of audi alteram partem.

Even if the appellant had authority to dismiss the respondent, the well-settled legal position is that: “The body with the power to decide cannot proceed to make a decision until it has afforded the person affected proper opportunity to state his case.” per Lord Reid in Ridge v Baldwin [1963] 2 WLR 935 at 953. In Ghana National Trading Corporation v Baiden [1991] 1 GLR 567, SC the Supreme court took a much stronger position on such dismissals when it applied constitutional provisions and held, as stated in the headnote, that:

“(1) . . . under both article 138 (b) of the Constitution, 1969 and article 155 (b) of the Constitution, 1979, a public officer could be dismissed or removed from office only if he misconducted himself.

Accordingly, where a public officer was dismissed or removed without a just cause, his dismissal was not only wrongful, but was unconstitutional, null and void.”

As appears in the headnote, the Baiden case (supra) was based on article 138 (b) of the Constitution, 1969 and article 155 (b) of the Constitution, 1979. There are identical provisions in the

[p.711] of [1997-1998] 2 GLR 693

Constitution, 1992 in article 19 1 (b) which read that: “A member of the public services shall not be–— . . . (b) dismissed or removed from office or reduced in rank or otherwise punished without just cause.”(The emphasis is mine.) Although the dismissal of the respondent in the instant case took place in 1984 when the then Constitution, 1979 had been suspended, the instant case was no different from the Baiden case (supra) in which the dismissal took place in 1983 and yet those constitutional provisions were applied.

In any case the appellant cannot seriously be heard to complain about the application of the provisions of the Constitution, 1992 because it was the first to invoke a similar application by its reliance on the transitional provisions of that Constitution. The Ghana Highway Authority Decree, 1974 (NRCD 298) does not indicate that the appellant is a commercial institution for it to be excluded from the definition of public service. From that Decree, it can be safely stated that the Ghana Highway Authority is part of the public service. There is no doubt therefore that the appellant is a member of the public service. He was dismissed without the cause of the dismissal being proved to enable the trial court or this court to determine whether or not the dismissal was for a just cause. His dismissal is covered by article 19 1 (b) of the Constitu tion, 1992 and the Baiden case (supra). Applying article 19 1 (b) of the Constitution, 1992 and Ghana National Trading Corporation v Baiden (supra) to the facts of the instant case, the dismissal of the respondent was similarly unconstitutional, null and void.

The consequences of such unconstitutional and void dismissal were that the dismissed employee was entitled to be reinstated or, if that were not realistic or feasible, he was entitled to be paid damages for wrongful dismissal. This was part of the decision in the Baiden case (supra) and Ghana Cocoa Marketing Board v Agbettoh [1984-86] 1 GLR 122, CA, a case on wrongful dismissal emanating from this court. It was held further in the Baiden case (supra) that since the dismissal was a nullity, the dismissed employee was entitled to be paid all allowances he would have earned if he had been permitted to work for the employer, but excluding allowances for personal services for which a watchman and a driver were specifically mentioned. The employee was also held to be entitled to gratuity and other retiring benefits as if he had retired voluntarily. Lastly, the Supreme Court affirmed an award of two years from the date of judgment as the period during which the employee was entitled to all his salaries and allowances

[p.712] of [1997-1998] 2 GLR 693 for the void dismissal. I am of the opinion that there is much wisdom in the principle adopted by the Supreme Court and the awards made in the Baiden case (supra) because if the dismissal was null and void, the employee should not in the least be made to suffer for an act which to all intents and purposes is not legally or even factually sustainable.

Following the Baiden case (supra), I would substitute for the award of the trial judge payment to the respondent of all his salaries and allowances together with corresponding increments given to employees in the same grade as respondents as well as his gratuity and other retiring benefits which he would have earned if he had retired voluntarily. The payment should cover two years from the date of his dismissal. I adopt the period of two years because of the similarities between the Baiden case and the instant case, especially the closeness of the years of dismissal to each other. In the Supreme Court case, the employee was dismissed in 1983 while the respondent in the instant case was dismissed in 1984. In terms of time and social and political circumstances, there are not many differences between the two dismissals. The difficulties in searching for alternative jobs in the two cases would be identical. What justified the two-year period in the Baiden case (supra) would very well be applied to the instant case. In the case of Ghana Cocoa Marketing Board v Agbettoh (supra) the employee was also given two years’e compensation.

I do not deem it necessary to spell out the details of these payments because they can not be subject to dispute from the records available to the appellant as the employer and in any case the respondent can always verify from similar payments to the officials on the grade equivalent to that on which he would have been if he had not been wrongfully dismissed. Further, the president of this panel has set out the details of the payments which I agree with.

In arguing his other grounds of appeal, counsel for the appellant contended that the award of ¢5 million was arbitrary since no basis was expressed for it. I entirely agree with him on this issue. The damages should have been assessed by the trial judge on the basis of the evidence adduced at the trial. If the trial judge had other basis or reasons for the award, he should have disclosed them in the judgment. These are well-settled principles which have been enunciated in several cases like Hemans v Ghana National Trading Corporation [1978] GLR 4, CA and Nartey-

[p.713] of [1997-1998] 2 GLR 693

Tokoli v Valco Alumium Co Ltd (No 2) [1989-90]12 GLR 341, SC. Counsel was also right in his attack on the order for reinstating the respondent. That order should be alternative to damages for wrongful dismissal. An employee cannot be reinstated and at the same time awarded damages for wrongful dismissal, except for actual wages and allowances. I would uphold his submissions on these awards and the other consequential orders.

On the issue of interest it has to be pointed out in the instant case the respondent did not apply for interest. The law on interest is now clearly stated in the Court (Award of Interest) Instrument, 1984 (LI 1295) which provides that:

“Where in any civil cause or matter the Court makes an order for the payment of interest on any sum due to the plaintiff other than any sum claimed by the plaintiff under Order 13, Rule 3 of the High Court (Civil Procedure) Rules, 1954 (LN 140A ) the rate at which such interest shall be payable shall be the Bank rate prevailing at the time the Order was made by the Court, but no compound interest shall be awarded.”

It is my view that under LI 1295 the court has the power to award interest once it has decided that a certain sum due to the plaintiff has been kept by the defendant. The power of the court to award interest in this country was created in the Courts Act, 1972 (Act 372), s 98 under which LI 1295 was promulgated. Where power to perform a function has been created by statute, the exercise of that power becomes a statutory duty. The power or the statute may not need to be pleaded before the power can be exercised. Incidentally, this case will not be the first time that LI 1295 is being applied where interest has not been pleaded. In at least one High Court case, Heloo v Tetteh [1992] 2 GLR 112 Acquah J3 (as he then was) held that interest can be awarded even if not pleaded. The court came to that conclusion by comparison of Act 372, s 98 with section 3 of the English Law Reform (Miscellaneous Provisions) Act, 1934 (24 and 25 Geo 5, c 41) and the case of Riches v Westminster Bank Ltd [1943] 2 All ER 725, CA.

On the basis of these authorities, this court too can award interest on the sum due to the respondent. The only pre-condition for the court to exercise the power to award interest is that it should have decided that a certain sum due to the plaintiff has been kept by the defendant. In the instant case, all the awards here

[p.714] of [1997-1998] 2 GLR 693 should have been paid to the respondent two years after his dismissal. That was the time they became due to him. They were not paid. Instead the appellant chose to ignore the respondent and his claim for the entitlements as if nothing was at stake. Having kept his money up till now, the appellant is liable to pay interesit on it.

In addition to the above, one of the well-settled basis for the award of interest on money claims is this: Money due to the plaintiff should be given to the plaintiff as “sum due to the plaintiff.” If it were paid to him, he would have worked with it ori banked it and earned some profit with it. When the court finds thati such money has been kept by the defendant he can be presumed to have used it and made profit from it. He should not be allowed toc keep the money as well as the profit which would have accrued from the use of such money. It is that profit which the defendanti will be made to pay the plaintiff by way of interest. This will be found expatiated upon in London Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429 at 437, HL; Ghanac Commercial Bank Ltd v Binoo-Okai [1982-83] GLR 74; Amartey v Social Security Bank Ltd [1987-88] 1 GLR 497, CA and Royali Dutch Airline (KLM) v Farmex Ltd [1989-90] 2 GLR 623, SC.

In the last case, Adade Ag CJ stated the legal position with regard to interest as follows at 636: “In this case, the judgment debt of £23,800 together with the interest became payable on 18 March 1987. If it had been paid then, the plaintiffs could have had the benefit of it from the said 18 March 1987 to date. But it was not paid. It is reasonable to suppose that the defendants kept the plaintiffs’ money from 18 March 1987, and used it to their advantage, to the detriment of the plaintiffs. The defendants cannot justly claim to be entitled to keep the profits they have thus made at the plaintiffs’ expense. The plaintiffs are entitled to call upon the defendants to account to them for the use of this money, which is another way of saying that the plaintiffs are entitled to interest on the said money beyond the date of the judgment of the High Court today. If the defendants had been minded to escape this consequence, their course was clear: they should have either paid the money to the plaintiffs, or paid it into court; or sought direction from the court, on an application for stay of execution. Not having done so, it follows that in

[p.715] of [1997-1998] 2 GLR 693 my view the plaintiffs are entitled to interest on the £23,800 from 1 December 1985 [when the High court judgment was given] till today, or until date of payment.”

Aikins JSC expressed similar views at 645 of the same report. It may be argued that the Farmex case (supra) concerned a liquida ted amount. It is my view however, that that should make no difference. What is significant in that case and the instant one is that the court has found that the defendant has kept a “sum of money due to the plaintiff.” In the instant case, the appellant has kept moneys which should have been paid to the respondent. That was the amount realisable from the compilation of his salaries and allowances for two years as well as his gratuity and other benefits. They were not paid to him. The appellant has kept them till today. Having kept money due to the plaintiff up till now, and thus deprived him of the profit which he would have earned if it had been paid to him on time, the appellant is liable to pay the respondent that profit by way of interest.

On a plain reading of LI 1295, the interest should be at the prevailing bank rate, on simple interest basis on the amount realised at the end of two years from the date of his dismissal. The interest rate will of course differ from day to day but the parties can verify them from the Bank of Ghana, whose figures none of the parties can dispute.

The Farmex case (supra) also decided conclusively that such interest is payable from the date the amount became due up to the date of final payment. Applying that principle to the instant case, the appellant will be liable to pay interest from two years after the dismissal when the sum awarded here was due and payable to the respondent (but was not paid) up to the date of final payment. The fact that the amount could not be certain till the trial was over is irrelevant. In the Farmex case (supra), the amount to be paid was uncertain till the appeal was concluded and yet the interest was ordered to be paid up to the date of last payment.

One could have been sympathetic to the appellant for the length of time that the case has lasted in the courts up till now which may increase the amount to be paid. On the peculiar facts of this case, however, the delay should be placed squarely on the doorsteps of the appellant. The record showed that right from the time the wrint was issued, it was the appellant which caused considerable delay in the disposal of the case. On several occasions the case had to be

[p.716] of [1997-1998] 2 GLR 693 adjourned to accommodate the appellant as had clearly been detailed out at the beginning of this judgment. Even after the trial had been concluded and judgment given in its absence, it attempted to set it aside by advancing reasons which the trial judge rightly but derisorily rejected on the ground that a legal department does not supervise road or civil works as stated on the appellant’s affidavit. To discount any period in favour of the appellant on account of the delay would amount to allowing the appellant to take advantage of its own wrong or to profit by its inaction. That is not permissible in law. In fairness, the present solicitor who conducted the appeal for the appellant may not be blamed for those delays since a different solicitor signed the pleadings. The fact still stands however that the delay was from the appellant’s outfit at the material times they occurred.

In my opinion, the appeal failed in respect of liability in so far that the entire argument of the appellant was based on the transitional provisions and that argument has flopped. The appeal succeeds in part on the order for reinstatement, the award and consequential orders of the trial judge. They are all set aside. That ground of appeal failed in part in relation to the awards on the salaries, allowances, gratuity, retiring benefits and interests.

For the avoidance of doubt, I wish to restate that I endorse the details of the awards as contained in the leading judgement of the president of the panel.

Appeal allowed in part

SA