ANDOH v. AMANSIE LOCAL COUNCIL AND OTHERS [1966] GLR 321

Division: HIGH COURT, KUMASI

Date: 20 APRIL 1966

Before: ATTOH J.

CASES REFERRED TO

(1) Andoh v. Commissioner of Police [1963] 2 G.L.R. 306, S.C.

(2) Hadley v. Baxendale (1854) 9 Ex. 341; 23 L.J.Ex. 197; 23 L.T. (o.s) 69; 18 Jur. 358; 2 W.R. 302.

(3) Beckham v. Drake (1849) 2 H.L.Cas. 579; 13 Jur. 921.

(4) Maw v. Jones (1890) 63 L.T. 347.

(5) De Stempel v. Dunkels [1938] 1 All E.R. 238; 158 L.T. 90; 55 T.L.R. 655, C.A.

NATURE OF PROCEEDINGS

ACTION for damages for wrongful dismissal and arrears of salary. The facts are sufficiently set out in the judgment.

COUNSEL

A. Mmieh for the plaintiff.

Defendants in person.

JUDGMENT OF ATTOH J.

This is a case in which the plaintiff claims against the defendants jointly and severally (1) £G800 damages for wrongful dismissal from the defendants’ employment as market clerk; and (ii) £G519 11s. 8d. being arrears of salary for the period of 29 months from May 1962 to September 1964 at the rate of £G17 18s. 4d.

When pleadings were closed the issues for trial were settled as those in the summons for directions. The plaintiff in evidence said that he was employed as a market clerk by the defendants at a monthly salary of £G17 18s. 4d. Some time in 1962 he said he was charged with embezzling the sum of about £G1,000 before a circuit court at Kumasi. He was tried, convicted and sentenced to two years’ imprisonment with hard labour. During the trial he was interdicted with effect from 1 May 1962. He appealed to the Supreme Court against his conviction and sentence and the appeal was allowed and the conviction and sentence were quashed, a verdict of not

[p.323] of [1966] GLR 321 guilty entered, and he was acquitted and discharged by the Supreme Court on 15 July 1963 (reported sub nom. Andoh v. Commissioner of Police1). Fifteen months after the appeal he received (from the defendants) exhibit B, dated 8 September 1964, dismissing him with retrospective effect from 1 May 1962, the date of interdiction. The plaintiff therefore claims as in his writ of summons and statement of claim. The defence filed admitted dismissing the plaintiff but alleged that the defendants were not obliged to pay the plaintiff’s salary or to re-instate him. They deny wrongful dismissal of the plaintiff and relied on section 124 of the Local Government Act, 1961.2

In evidence the representative of the defendants said the plaintiff was surcharged with the sum of £G1064 18s. 10d. and was notified of this but he replied to say he would not pay. This was never pleaded and there is no counterclaim before the court for this amount. It appears from the evidence that although the defendants stated in exhibit B that the plaintiff was dismissed “for gross negligence of duty,” this has not been proved by the defendants. The burden is on the defendants to justify the dismissal and to prove the gross negligence alleged in exhibit B. The representative of the defendants does not seem to know much about the case. All the allegations of the defendants in their statement of defence have not been proved or substantiated before this court.

Reading the judgment of the Supreme Court, exhibit A, it does not appear anywhere in that judgment that the Supreme Court found any conclusive evidence against the accused (the plaintiff in this case). Indeed the Supreme Court found that other people were involved especially the fourth and fifth prosecution witnesses and that someone was “facing a charge concerning” the missing receipt books of the council. Indeed if the defendants have a claim after the disposal of the criminal case, they could have counterclaimed when the plaintiff brought this action instead of merely stating that he was surcharged with £G1064 18s. 10d. which has not even been pleaded.

The plaintiff has been found not guilty by the highest court in Ghana, the Supreme Court. His innocence has been established. The defendants have failed to prove gross negligence alleged in exhibit B. They have not established any other excuse for dismissing the plaintiff. I am satisfied that the plaintiff was wrongfully dismissed by the defendants.

[p.324] of [1966] GLR 321

I now come to consider whether the defendants are bound to pay the plaintiff his salary as claimed by the plaintiff. There is no evidence as to any written terms of employment between the plaintiff and the defendants except that the plaintiff was employed as a market collector at a monthly salary of £G17 18s. 4d. The Local Government (Local and Urban Council Staff) Regulations, 1962,3 has been referred to in issue (16) of the summons for directions. I can therefore safely presume, and I am right in presuming, that these regulations constitute the terms of employment of local and urban council staff, including the plaintiff, and form the basis of the contractual relationship between the plaintiff and the defendants. The plaintiff was interdicted on 22 May 1962. I have no evidence as to the terms of the letter of interdiction. I have the evidence of the plaintiff that from the date of interdiction he was not paid any salary up to 1 May 1964, the effective date of his dismissal. He received exhibit B dated 8 September 1964 telling him of the termination of his appointment. Exhibit B did not call on him to draw any salary due from 22 May 1962 to 1 May 1964. There is no evidence that he was allowed to work as from 22 May 1962 to the date of judgment, i.e. 15 July 1963. Regulation 7 (1) of L.I. 175 states that if criminal proceedings are being instituted the officer might be interdicted by the disciplinary authority (the defendants in this case). This is a discretionary power given to the defendants under regulation 7 (1) which they in fact exercised on 22 May 1962. Regulation 7 (2) states that “An officer who is interdicted shall receive half pay.” This is a mandatory regulation and it follows that on the interdiction of the plaintiff by the defendants on 22 May 1962 the plaintiff should have been paid half his monthly salary of £G17 18s. 4d. as from May 1962.

Regulation 7 (3) and (4) state that if the disciplinary proceedings did not end in the officer’s dismissal, the whole of his salary withheld from him should be restored to him on taking a final decision and if the officer were to be acquitted of a criminal charge he should be re-instated and the whole of his pay withheld from him should be restored to him. According to exhibit A dated 15 July 1963 the plaintiff was acquitted and discharged by the Supreme Court. At that time he had not been receiving half his monthly salary under regulation 7 (2). Under regulation 7 (3) he was not given the whole of his withheld salary. Under regulation 7 (4) the plaintiff was not re-instated and the whole of his withheld salary was not paid to him. On 8 September 1964, exhibit B instead, terminated his appointment in breach of regulation 7 (4). [p.325] of [1966] GLR 321 Regulation 8 also states that on acquittal of an officer who faced a criminal charge he should not be dismissed or otherwise punished on the charges for which he had been acquitted unless the charges in substance raised an issue upon which he had been acquitted. Regulation 8 goes on to state that “but nothing in this regulation shall prevent his being dismissed or otherwise punished on any other charges arising out of his conduct in the matter.” There is nothing in regulations 7 and 8 which authorises the defendants to forfeit the salary earned by the plaintiff from May 1962 to July 1963 after his acquittal. The plaintiff therefore is entitled to his full monthly salary of £G17 18s. 4d. from May 1962 to July 1963, amounting to £G447 18s. 4d. which should have been restored to him.

Now, what happened to the plaintiff after he had been acquitted by the Supreme Court? He was not re-instated in accordance with regulation 7 (4). He was dismissed without proper notice although under regulation 8 he should not have been dismissed. In exhibit B, paragraph 2 it was stated that, “On the charge of stealing, sufficient documentary evidence has shown that gross negligence on the part of your duty greatly contributed to the loss of this huge amount.” Even if the plaintiff could be dismissed by the defendants, which they could not under regulation 8, under regulation 10 (1) the plaintiff was entitled to a month’s notice in writing. There was no such notice of termination of the plaintiff’s appointment after 15 July 1963 until 8 September 1964 when the plaintiff was notified of his dismissal effective from 1 May 1962.

As I have already held the dismissal of the plaintiff is wrongful, this brings me to the question of £G800 general damages. Throughout the criminal trial and the appeal the plaintiff had not been dismissed and also not paid by the defendants. The plaintiff had been led to believe that after 15 July 1963 on his acquittal by the Supreme Court he would be re-instated in accordance with regulation 7 (4) but he was rather dismissed again contrary to regulation 8. In an action for wrongful dismissal the servant must sue for a sum representing the loss he sustained by the master’s breach. Such a claim is frequently joined with a claim for wages as in this case. The measure of damages for wrongful dismissal is usually the pecuniary loss sustained by the servant provided such loss flows naturally from the breach. I refer to the famous leading authority of Hadley v. Baxendale.4 It appears from this case that the plaintiff will be entitled to what he has lost from his wrongful dismissal. What has he lost by this wrongful dismissal? It is his salary which he would have earned from July 1963 to 8 September 1964 if he had [p.326] of [1966] GLR 321 been re-instated in terms of regulations 7 (4) and 8 of L.I. 175. Erle C.J. stated in Beckham v. Drake5 that, “The measure of damages . . . is obtained by considering what is the usual rate of wages of the employment contracted for, and what time would be lost before similar employment could be obtained.” In the case of Maw v. Jones6 it was submitted that a jury was entitled to take into consideration the difficulty of getting employment and, upon proper evidence, could award considerably more than the servant’s lost salary. I refer also to De Stempel v. Dunkels.7 In this case the plaintiff has been treated shabbily by the defendants. He waited after his acquittal on 15 July 1963 by the Supreme Court hoping that he would be re-instated in accordance with regulation 7 (4); instead he was dismissed wrongfully by exhibit B dated 8 September 1964. It has been said by some authorities that it is the duty of the servant to minimise the damage. I do not think this principle can be applied in this particular case where the defendants have acted abominably and waited up to 8 September 1964 to send the plaintiff notice of termination of his employment contrary to regulations 7 (4), 8 and 10

(1) of L.I. 175. I think it is reasonable and equitable to assess damages for wrongful dismissal of the plaintiff at £G447 18s. 4d. representing his lost salary from July 1963 to September 1964. There will therefore be judgment for the plaintiff against the defendants jointly and severally for £G895 16s. 8d. being as to £G447 18s. 4d. arrears of salary and £G447 18s. 4d. general damages for wrongful dismissal. Costs in this action are assessed at ¢240.00 inclusive.

DECISION

Judgment for the plaintiff.

S. K. T.