GHANA COMMERCIAL BANK vs. ABOAGYE [1997-1998] 2 GLR 463

CASES REFERRED TO

(1) Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67, PC.

[p.467] of [1997-1998] 2 GLR 463

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

(3) Republic v State Hotels Corporation; Ex parte Yeboah [1980] GLR 875, CA.

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

(5) Lever Brothers Ghana Ltd v Annan; Lever Brothers Ltd v Dankwa (Consolidated) [1989-90] 2 GLR 385, CA.

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

(7) Edward Nassar & Co Ltd v Abu-Jawdi [1965] GLR 523, SC.

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

(9) Attorney-General v Hooper (1893) 3 Ch 483; 63 LJCh 18; 69 LT 340.

(10) Robinson v Sunderland (1899)1 QB 751; 68 LJQB 340; 80 OLT 262.

(11) Cooper v Wilson [1937] 2 KB 309; [1937] 2 All ER 726; 53 TLR 623.

(12) Ridge v Baldwin [1963] 1 QB 539; [1962] 2 WLR 716; [1962] 1 All ER 834, CA.

(13) Mosi v Bagyina [1963] 1 GLR 337, SC.

APPEAL and cross-appeal from decision of the High Court, Accra, declaring the summary dismissal of the respondent from the employee of the appellant bank as unlawful. The facts are sufficiently set out in the judgment of Lamptey JA.

Agyemang-Bempah (with him W A Boateng) for the appellant.

Dr E Daniels (with him Bruce-Thompson) for the respondent.

Lamptey JA. On 10 May 1971 the Ghana Commercial Bankl< (hereinafter called the bank) offered employment to P K Aboagyce (hereinafter called Aboagye) as sub-assistant accountant (bilingual interpreter) and advised him to commence work on 1 July 1971 at 7 00 am at the Foreign Branch, Accra. Needless for me to state, Aboagye accepted the offer on the terms and conditions and commenced to work for the bank. After several years of work with the bank, Aboagye was by a letter dated 25 June 1986 promoted to the post of senior manager with effect from 1 July 1986. This letter was pnut in evidence as exhibit 2. On 24 May 1989 the bank

[p.468] of [1997-1998] 2 GLR 463 wrote a letter to Aboagye on the subject matter dealing with: “Two together to sign all bank documents including authorisation of payment of cheques and withdrawals from deposit and savings bank accounts.” This letter was put in evidence as exhibit 3. In the course of his duties, Aboagye countersigned two documents, namely, a telex message and a cheque on 17 July 1992 and 8 October 1997, respectvelyrespectively. This conduct resulted in financial loss to the bank. Investigation into irregularities arising out of and directly connected with the couniitersigning by Aboagye of the two documents established that Aboagye was guilty of gross miscon duct. Aboagye was summarily dismissed by the bank.

Aboagye sued the bank for wrongful dismissal and claimed other reliefs. The bank stoutly resisted the claim. The case was heard on the merits. The trial judge entered judgment for Aboagye against the bank and granted him the reliefs he sought. The bank was aggrieved by the judgment and appealed to this court. Aboagye was aggrieved by the question of damages awarded him and also cross-appealed to this court.

The ground of appeal dealt with first by counsel for the bank reads thus:

“That the trial judge erred in law when he held that the plaintiff was not negligent when he signed as a second signatory to the documents which caused sums of US Dollars and pounds sterling to be transferred to organisations abroad and which said transfers caused the defendant-appellant to suffer loss and/or damage.”

Counsel for Aboagye deliberately avoided making any comments or observations on the facts before the court to support his complaint. He was content to deal with the issue of fraudulent conduct on the part of other officials of the bank that was investigated by the Bureau of National Investigation (BNI). He wrote as follows:

“In his (Aboagye) replies he denied resposibilityresponsibility for the loss of moneys to his employers. His (Aboagye) denials were further accepted by the reports of the BNI, the disciplinary committee and the executive committee.”

In reply, counsel for the bank submitted that the finding of the trinal judge is not supported by the evidence before him. He drew attention to evidence from Aboagye which showed that Aboagye

[p.469] of [1997-1998] 2 GLR 463 admitted that he countersigned the two documents. There was evidence he pointed out to establish that Aboagye failed and omitted to verify whether or not relevant entries relating to the two transactions had been made. He submitted that the evidence established that Aboagye failed to discharge his duty to the bank and he was rightly summarily dismissed.

I must observe that counsel for Aboagye did not advert to the issues whether or not when Aboagye countersigned the class of documents in question he observed and obeyed the laid down rules, procedure and instruction of the bank. The undisputed evidence was that Aboagye did not. I have no doubt in my mind that Aboagye knew or ought reasonably to have known that he was not summarily dismissed for fraud he committed on the bank.

I reproduce his evidence-in-chief on this issue as follows: “. . . I was accused of fraudulent dealing because entries were not passed to debit customer’s account before I countersigned the telex message.” (The emphasis is mine.) Aboagye from his own statement admitted that he failed to verify and satisfy himself that customer’s account had been debited. He was cross examined on this same issue as follows:

“Q Before countersigning the telex message and the cheque for f15,000 did you verify that the proper thing had been done?

A The entries had been passed by the originating department before I countersigned. The person counter-signing is not expected to go to verify at the originating department.”

(The emphasis is mine.)

I find that this answer cannot be the truth and it is not true. In an earlier written statement (exhibit F) Aboagye made in answer to a query by the bank, he wrote as follows: “A common practice was that the first signatory signed a cheque (or telex) and all accompanying entries . . . so once a cheque (for telex) bore a first signature a reasonable assumption was that the necessary entries had been passed.” (The emphasis is mine.) It will be seen from the statement that there was both an obligation and duty on Aboagye to verify the entries in connection with the transactions in question. He was not pnermitted to assume anyvthintg. He was

[p.470] of [1997-1998] 2 GLR 463 enjoined and obliged to verify the entries. He unequivocally admitted this in exhibit F, when he wrote as follows:

“. . . … because of my own schedule of work at the Cables Department it would have been too much for me to go down to the first floor where foreign/forex accounts were domiciled to verify whether entries had been passed for every cheque brought for counter-signature. This was just not practicable.”

(The emphasis is mine.) The above statements voluntarily made by him clearly showed and demonstrated he breached the duty of care he owed to the bank. Indeed, he did not appear to show any remorse, nor did he regret the financial loss the bank incurred through his deliberate failure to verify the relevant entries. He concluded exhibit F as follows: “If it has turned out that no internal entries were passed at the foreign/forex department on the first floor to debit the customers, it is too bad.”

At this point, I must turn to exhibit 2 the letter which advised Aboagye that he had been promoted to the position of senior manager. This letter reads in part as follows:

“This promotion imposes on you higher supervisory responsibility in the discharge of your duties with the application of requisite knowledge and skills, remembering at all times that you take personal responsibility for any work that you sign, initial or delegate. Above all you will be expected to demonstrate the utmost sense of duty and untainted loyalty to the bank.”

Apart from the obligations imposed on him by the promotion, he was written to on the subject of “Two together signing all bank documents including authorisation of payment of cheques and withdrawals from deposit and savings bank accounts.” This letter was put in evidence as exhibit 3 and reads in part as follows:

“In accordance with the duties and responsibilities attached to signing powers, each signatory shall be expected to act independently of the other (signatory) in ensuring compliance with laid down policies and procedures. Please be guided accordingly.”

(The emphasis is mine.)

I find that Aboagye did not act in accordance with the laid down rules and instructions. Counsel for the bank stated the law

[p.471] of [1997-1998] 2 GLR 463 correctly on this issue, namely that the conduct of an employee must be compatible with the faithful discharge of his duty and further that his conduct must not be injurious to his employer’s business. For the proposition of law she cited the English, case of Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67, PC. Aboagye can only succeed against the bank if he adduced credible evidence to prove and establish that his conduct in the two transactions measured up to his duty and responsibility as a senior manager. On the evidence before the trial court, he woefully fai’led to discharge the burden of proof as plaintiff. On the crucial issue whether or not he failed in his duty of care to the bank, the following passage from his cross-examination provides a clear and unequivocal answer:

“Q Why did the bank ask for signatories?

A To avoid collusion.

Q I suggest to you that as senior manager you were negligent in signing these documents without looking at the supporting data.

A Yes.”

With great respect, the trial judge failed or omitted to direct his attention to this passage which in my view is the real issue in dispute between the parties. I note that the trial judge was content to consider the following passage from Aboagye’s cross-examination and arrived at his conclusion:

“Q Before countersigning the telex message and the cheque . . . did you verify that the proper thing had been done.

A The entries had been passed by the originating department before I countersigned. The person counter -signing is not expected to go and verify at the originating department.”

This answer raised a number of questions wihichwhich in my opinion the trial judge failed to consider: for instance, how did Aboagyec inform himself that the entries had been passed in the originating department? Did the trial judge not observe that Aboagye told a lihec when he added the further statement that the second signatory was not expected to go and verify at the originating department? In any case, this answer is in sharp conflict with and contradicted his earlier answer I adverted to earlier in this judgment.

[p.472] of [1997-1998] 2 GLR 463

There was further evidence on record which showed that Aboagye failed to discharge his duty as a senior manager when he countersigned the two documents. This crucial and condemning evidence is contained in the petition he wrote, signed and sent to the bank. Aboagye put this document in evidence as exhibit F. Part of the petition reads: “The entries were taken to the waste department. The cheque was then taken to another office to countersign. So once a cheque bore a first signature a reasonable assumption was that the necessary entries had been made.” Clearly and plainly, Aboagye’s statement proved and established that he failed and omitted to verify the facts before he countersigned the two documents. Indeed, he explained further in exhibit F the true position in which he found himself when he stated as follows: “. . . … because of my own schedule of work at the Cables Department it would have been too much for me to go down to the first floor . . . to verify whether entries had been passed for every cheque brought for countersignature. This was not just practicable . . .”

By this piece of evidence, Aboagye unequivocally admitted that he knowingly and willfullywilfully breached his duty to the bank to verify that entries had been made. Even though he became aware in due course that the bank lost financially as a result of his counter -signing the two documents, he did not show any remorse or regret in his petition. He observed thus in exhibit F as follows: “If it turned out that no internal entries were passed at the Forex/Foreign Departments . . . to debit the customers, it is too bad.” It is clear that he was insensitive to the financial loss to the bank, which loss was occasioned because he failed in his duty to verify and satisfy himself that all relevant entries had been made in the records of the customers.

I must observe that the trial judge misdirected himself on the real issue for determination by him when he expressed himself as follows:

“The plaintiff would not have been blamed for causing loss to the defendant (bank) as Mr Daniel Gyasi was the person who caused the fraud leading to the loss of $13,000 and £15,000 to the defendant (bank).”

In the first place, the bank did not summarily dismiss Aboagye because he comm itted fraud on the bank. The bank gave the

[p.473] of [1997-1998] 2 GLR 463 reason for the action it took against him. I have thoroughly dealt with that issue. In the second place, Aboagye did not tell the court that Daniel Gyasi was the person who signed as the first signatory and therefore he Aboagye assumed that Gyasi had verified the entries. Thirdly, there is no evidence from Aboagye to show the part (if any) that Gyasi played in the two transactions. I therefore fail to appreciate the relevance of any evidence to show and prove the part played by Gyasi, especially when Aboagye’s case is that he countersigned the documents freely and voluntarily and without duress or undue influence from Daniel Gyasi. Finally, I must point out that none of the questions sent to Aboagye accused him of fraudulent conduct. Consequently he did not defend himself in his replies to the bank on allegation of fraud. The evidence contained in the BNI report that Aboagye was not involved in fraudulent deals at the bank is of no consequence in this matter.

Ground (3) (c) on the notice of appeal reads as follows:

“That the trial judge erred in law when he held that the defendant failed to give a hearing to the plaintiff before dismissing him contrary to the terms of his employment which was governed by the senior staff rules . . .…”

Counsel for the bank submitted that under the senior staff rules the bank was not enjoined to mandatorily give Aboagye a personal hearing in the matter. He submitted that rule 4 of the said senior staff rules was permissive. He contended that in the instant case all the information needed to enable the bank reach a decision were contained in the queries and replies thereto, hence there was no need for an oral hearing. He cited the cases of Republic v Ghana Railway Corporation; Ex parte Appiah [1981] GLR 752; and Republic v State Hotels Corporation; Ex parte Yeboah [1980] GLR 875 at 877, CA in support of his submission. On thec contrary, counsel for Aboagye submitted that the bank was enjoined by the said senior staff rules to give Aboagye a hearing. He submitted further that the “audi alteram partem rule made it imperative and mandatory for the bank to give Aboagye a hearing.” Counsel stated the position as follows:

“When a person is given a query and he replies it, that cannot amount to a hearing as envisaged by the principle of audi alteram partem. That will amount to an investigation by wnriting and reading . . . … Any argument that the queries and

[p.474] of [1997-1998] 2 GLR 463 replies in the instant case amounted to a hearing within the concept of audi alteram partem rule is totally erroneous and misleading and should be roundly rejected.”

The trial judge expressed a similar opinion in his judgment when he wrote as follows: “I must say without mincing words that giving the plaintiff a query did not amount to investigating the negligence of the plaintiff. At any rate the plaintiff was not even warned and yet the board dismissed the plaintiff after the board had breached the rule of natural justice as the plaintiff was not given a hearing.”

In support of the submission, this court was referred to the following cases: Presbyterian Church, Agogo v Boateng [1984-1986] 2 GLR 381, CA; Lever Brothers Ghana Ltd v Annan, Lever Brothers Ghana Ltd v Dankwa (Consolidated) [1989-1990] 2 GLR 385, CA; and Aryee v State Construction Corporation [1984-1986] 1 GLR 424, CA.

I start with the case of Republic v Ghana Railway Corporation (supra). In that case Twumasi J (as he then was) in his judgment expressed his opinion on the rule of law on natural justice at 758 as follows: “Counsel for the applicants submitted that the corporation flouted the elementary rules of natural justice in that no notice of specific charges were served on the applicants and that no opportunity was given to them to conduct their defence or to reply thereto. But the facts of the case show clearly that the applicants and others were notified to appear before a board of inquiry and that they knew what matter was going to be investigated. It cannot therefore be said justifiably that the applicants were condemned unheard . . . The principle does not, in my view, require that there must be a formal trial of a specifiIic charge akin to court proceedings.”

(The emphasis is mine.) The opinion of Twumasi J (as he then was) was applied by the Court of Appeal in the case of Aryee v State Construction Corporation (supra) as stated in the headnote at holding (2) as follows:

“(2) A hearing did not necessarily, at all times, involve the physical presence of the employee before the board of

[p.475] of [1997-1998] 2 GLR 463 directors to be examined viva vioce. Where a board wrote to an employee drawing his attention to alleged acts of mis conduct and impropriety, and invited a written explanation, it would be thought that the employee would have been given an opportunity to be heard. If the employee wrote back answering the queries, and offered explanations and justifica. . tion for his conduct . . . then surely he would have taken advantage of the opportunity offered him and would have . . been heard . . . The audi alteram partem rule would have been complied with.”

(The emphasis is mine.) Commenting specifically on the case before the court, Adade JSC wrote at 433-434:

“On the basis of correspondence on file, exhibits G–L, it cannot be said that the defendant was denied a hearing, even if this was a pre-requisite which, as stated earlier, it was not . . . … In this connection it is pertinent to observe that the conduct of an employee, particualrlyparticularly a senior officer such as the defendant, is as important as, if not more so than, his performance as an officer.”

The short answer to the complaint based and founded on non- compliance with the senior staff rules and non-observance of the audi alteram partem rule is provided in the above case and as well as in others. Indeed, there is respectable legal authority that an employee who is guilty of gross misconduct may be summarily dismissed by his employer. I refer to the case of Edward Nasser & Co Ltd v Abu-Jawdi [1965] GLR 523. At 533 of the report appears the statement of the law thus:

“A servant, whose conduct is incompatible with the faithful discharge of his duty to his master, may be dismissed . . . .… Dismissal is also justified in the case of a servant . . . if his conduct has been such that it would be injurious to the master’s business to retain him.”

This opinion was further repeated at 534 as follows:

“It is not necessary that the master, dismissing a servant for good cause, should state the ground for such dismissal; and, provided good ground existed in fact, it is immaterial whether or not it was known to the employer at the time of the dismissal . . .…”

[p.476] of [1997-1998] 2 GLR 463

There can be no doubt that the trial judge took an erroneous view of the complaint made by the bank against Aboagye. In my view, Aboagye undertook the burden of proving and satisfying the trial court that on the two occasions that he countersigned (a) the telex message and (b) the cheque, he verified and therefore satisfied himself that all the relevant entries had been made in the books and records of the bank; and further, that he complied fully and absolutely with the instructions to senior managers contained and spelt out, in extenso, in exhibit 1 and 2. Aboagye did not adduce that evidence and therefore did not prove his claim as he was required to do by the rules and the law.

In my opinion, the evidence adduced by Aboagye did not prove and establish that in countersigning (a) the telex message, and (b) the cheque, he followed and religiously observed the procedure and steps spelt out, in extenso, in exhibit 1 and 2. There was therefore no case made out by Aboagye for the bank to answer. Be that as it may, the case of the bank that Aboagye as senior manager negligently and without reasonable excuse failed to dis charge the duties of his high office as senior manager provided a water-tight defence to the bank. I have sought to show and demon strate the conclusion reached by the trial judge cannot be support ed having regard to all the matters to which I have made reference. His decision that the dismissal of Aboagye was wrongful and unlawful cannot be supported. Again the finding by the trial judge that the bank breached the principle of audi alteram partem in the circumstances of this case cannot be supported in law.

In the light of the conclusion I have reached, I find that the claims of Aboagye for damages for wrongful dismissal under head (f), and arrears of salary under head (c) had not been proved and established. I will set aside the award made under head (f). I must observe that the award of damages under head (f) cannot be supported in law. The trial judge did not purport to follow and observe the well-established principles of law governing the award of damages. I do not intend examining these principles in this judgment, since I have found that Aboagye failed to prove and establish that he was wrongfully dismissed.

Counsel for Aboagye cross-appealed on the grounds, namely: “(1) The award of damages was too low; and (2) It is proper that the damages should carry interest as laid down by the Courts (Award of Interests) Instrument, 1984 (LI 1295).” In arguing garound (ft1), counsel submitted that the damages awarded were

[p.477] of [1997-1998] 2 GLR 463 inadequate and too low. He cited the case of Ghana National Trading Corporation v Baiden [1991] 1 GLR 567, SC. I have found the Baiden case instructive and useful. I cannot do better than reproduce part of the concurring opinion of Francois JSC at 576 –577:

“The law has been stated a number of times that actions for damages can only be successful if the plaintiff proves his claim. In the well known case of Bonham-Carter v Hyde Park Hotel Ltd [1984] 64 LTR 177, Lord Goddard rejected the practice of merely asking for damages without the necessary exertion of proving them . . . . .There is no suggestion anywhere on the record of any effort made by the plaintiff to mitigate his losses . . . Moreover, the requirement that damages must be proved appeared the least of the plaintiffs worries.”

When the evidence of Aboagye is tested against these established prinnciples, there can be no doubt that he woefully failed to discharge the burden of proving the damages he claimed. The cross-appeal on this ground fails.

I do not feel called upon to consider ground (2) of the cross-appeal. In the result, I dismiss the cross-appeal of Aboagye. I allow the appeal by the bank. I set aside the judgment of the High Court in favour of Aboagye. I enter judgment for the bank against Aboagye.

Ofori-Boateng JA. In my judgment, I have relied strictly on the rules of the bank under which the respondent was employed and the rules of natural justice.

The facts of this appeal from the High Court, Accra are as follows: The appellant employed the respondent on 1 July 1971 for 23 years, during which time he rose to the rank of senior manager. On 17 July 1992 the respondent signed a cheque authorising the withdrawal of £15,000 while in fact the drawer had only £6,987.64 in his account on the 17 July 1992. Again on 8 October 1997 he countersigned a cable without making sure that the money being authorised to be paid had been entered in the necessary books. The bank thought these practices were improper and even fraudulent. As a result, the respondent was eventually dismissed and ordered to pay back to the bank whatever money it had lost.

[p.478] of [1997-1998] 2 GLR 463 The respondent sued on his dismissal as being unlawful. The High Court decided that his dismissal was indeed unlawful, and awarded him damages of ¢25 million against the appellants. It is against this decision that the appellant has appealed to this court.

I intend dealing with this appeal under two questions: (1) Did the conduct of the respondent, senior bank manager, amount to an offence under the staff service rules and in law? (2) If it did, was the method used for investigating his offence and awarding the punishment in accordance with the rules of the bank and natural justice?

I will deal with the questions separately. Rule 2. 1.2 of the staff service rules provides: “Every employee shall conform to, and abide by the provisions of these rules which govern his/her service in the bank and shall observe, comply with and obey all orders and directions which in the interest of the bank may, from time to time be given to him/her by any person or persons under whose jurisdiction, superintendence or control he/she may for the time being be placed.”

In his statement of claim, the respondent stated in the second and third paragraphs as follows:

“(2) It was a condition in the defendant’s written offer of appointment that the plaintiff would be required to agree to be governed by the staff rules.

(3) The plaintiff accepted the offer of appointment on the tennrms and conditions stated in the said letter of appointment.”

In my view, both the appellant and the respondent are equally bound by the rules of the bank, and whoever breaks them is liable for violating the contract, and could be dealt with strictly under the rules. It goes without mention therefore that if the respondent faihls to comply with these rules or any circulars prepared by the appellant in furtherance of, or supplementary to the rules, he has violated the terms of his contract and could be dealt with under the disciplinary rules under the staff service rules.

In August 16 1983, the appellant issued a circular No DMD/GG/l/83 entitled “What a Signature Means” (exhibit 1). I quote exhibit 1 verbatim:

[p.479] of [1997-1998] 2 GLR 463

“We appear to attach very little importance to our responsibilities as signing officials of the bank and tend to sign vouchers and other bank documents, either as first or second signatories, without making efforts to ensure ourselves of the accuracy of the relevant supporting data.

It is common practice for many of us to sign vouchers crediting, for instance, proceeds of cheques for collection to drawee’s accounts without reference to cheques for collection registers to satisfy ourselves that details of the collection proceeds are genuine.

Our lack of concern to sign vouchers without ensuring their genuiness has contributed to many frauds costing the bank large sums of money. In other cases, other bank documents, particularly guarantees has either been signed or endorsed without proper care, unknowingly exposing the bank to huge liabilities concealed in the system. Management views these lapses with concern and takes liberty to remind all staff that one takes personal responsibility for eveiry voucher of any document that one signs, either as a first or second signatory, and that a signature may be, withdrawn where it is used without proper care. Please be guided.”

On June 23 1986, the respondent was promoted to the rank of senior manager. Paragraph (2) of this letter of promotion (exhibit 2) stated:

“This promotion imposes on you higher supervisory responsibility in the discharge of your duties with the application of requisite knowledge and skills, remembering at all times that you take personal responsibility for any work that you sign, initial or delegate.”

(The emphasis is mine.) Again on 24 May 1989 a personal letter was directed to the respondent from the deputy managing director, (exhibit 3). Paragraph 3 of this letter states:

“In accordance with the duties and responsibilities attached to signing powers, each signatory shall be expected to act independently of the other (signatory) in ensuring compliance with laid down policies and procedure. Please be guided accordingly.”

(The emphasis is mine)

[p.480] of [1997-1998] 2 GLR 463

The facts of the complaint against the behaviour of the respondent, as he himsel1f has agreed, are taken from his answer to the queries sent to him by the appellant. The respondent agreed that on 17 July 1992 he countersigned a cheque for the transfer of a cheque for £15,000 without checking to see whether the drawer had E15,000 in his account on that date. In fact, he had a little over £6,000 at the date of withdrawal. Again the respondent agreed that on 8 October 1991, he countersigned a cable from the foreign account department authorising the payment of US$13,559.60 without ensuring that these amounts had been entered in the appropriate books, as a record of such a transaction. In Halsbuiry ‘’s Laws of England (3rd ed), Vol 25, para 938, it is stated:

“A servant, whose conduct is incompatible with the faithful discharge of his duty to his master, may be dismissed . . ..… Dismissal is also justified in the case of a servant . . . if his conduct has been such that it would be injurious to the master’s business to retain him.”

See also Edward Nasser & Co Ltd v Abu-Jawdi [1965] GLR 523, SC. In the face of the facts of this case therefore, I am of the view that the respondent was in breach of the rules and the circulars of the appellant bank and deserves to be investigated for purposes of discipline.

The next question to be looked at is the procedure whereby the case against the respondent was investigated and proved. The investigation into the matter was conducted in two stages. The first stage was conducted under rule 4.1 of the staff service rules. There, the disciplinary committee investigates the matter and makes its recommendation to the executive committee or the board. Under rule 4.1, the disciplinary committee has the power to give the employee under• investigation, the right of being heard personally, ie orally, in addition to, or, in lieu of written answers to queries if he is of the rank of senior manager or above, as in this case. But this privilege of a personal hearing is given only on two conditions. First, the employee must request for it, and secondly the majority of the disciplinary committee must be of the opinion that there is a need for such a personal hearing to afford a fair hearing opportunity.

The respondent has complained that he was not given a personal hearing. In this appnneal there is no evidence that the respondent

[p.481] of [1997-1998] 2 GLR 463 made any request for a personal hearing. Therefore according to rule 4.1, that opportunity could not be considered at all by the disciplinary committee.

It has further been argued by the respondent that the committee itself should have brought the respondent’s attention to his right to the personal hearing. In administrative law, where the right to be heard personally exists, the law is as stated in de Smith’s Judicizald Review of Administrative Action (4th ed), p 192:

“The courts have held that failure to give formal opportunity to be heard is immaterial if the person affected was in fact aware of what was proposed or knew or ought to have known that he could have made representations had he wished.”

See Attorney-General v Hooper (1893) 3 Ch 483; Robinson v Sunderland Corportion (1899) 1 QB 751 at 757-75 8.

In this present case, the respondent was a senior manager of the bank who was familiar with the rules of the bank or should have been, and was expected to know the procedure of the bank in disciplinary matters. Indeed, in exhibit D, the respondent himself said that he was in Kumasi once as an administrative officer of the bank, responsible for investigating fraud complaints, no doubt according to the disciplinary procedures of the bank. In my opinion, because of the knowledge and experience of the respondent as a senior manager of the bank, he need not be reminded of his rights within the disciplinary rules of the bank, particularly his special right of being heard in person, which is a privilege reserved for only senior officers like himself.

The disciplinary committee again has been accused of violating the rules of natural justice for playing simultaneously the triple roles of investigator, prosecutor and adjudicator in this case. This situation came about because the General Manager (Human Resources and Development Division) who suspended the respon dent was also a member of the disciplinary committee which was to investigate him and recommend punishment, if necessary. The situation in which the disciplinary committee found itself, accord ing to counsel for the respondent, has been condemned in the cases of Copper v Wilson [1937] 2 KB 309 and Ridge v Baldwnin [1963] 1 QB 539 at 578. In my opinion, however, these cases car be distinguished from the case before this court. In Cooper v Wilson (supra) and Ridge v Baldwin (supra), it may be noticed thati the decisions were both decisions of arbiters and authonrities whose

[p.482] of [1997-1998] 2 GLR 463 decisions were of binding effect. In the present case, however, the disciplinary committee is not a final arbiter. It has no power to make any binding decision. In accordance with rule 4.2 it can only make recommendation which could be accepted, modified, or rejected by the executive committee or the board. And so in de Smith’s Judicial Review of Administrative Action (4th ed), p 236, the law is put thus: “. . . an investigating body is under no duty to act judicially if it cannot do more than recommend or advise an action which another body may take on its own discretion.” In my opinion the disciplinary committee, not being an adjudicating body and not being able to make any binding decisions, cannot be affected by this rule of natural justice.

It may also be noted that the reason why the disciplinary committee had to include the general manager was that rule 5.1 mandatorily demands so. Rule 5. 1 is one of the rules of the bank under which the respondent accepted his appointment and his promotion as senior manager; he therefore cannot be heard to repudiate the terms of his contract, now that he is caught wanting by the very terms. Equity, common sense and logic do not countenance approbation and reprobation from the same person simultaneously. In my view, the disciplinary committee carried out its investigating duties within the law and the rules of the bank.

The disciplinary committee rightly passed on its recommendations to the executive committee or the board. Did the board carry out its examination of the recommendations properly and award the punishment according to law and the bank rules? The answer could be found under rule 4. 3. It provides as follows:

“4.3 The executive committee should carefully consider the investigation report, the employee’s defence statements, the reasoned recommendations of the disciplinary committee and examine whether the facts have been out in fair and impartial manner. Based on its assessment the executive committee may arrive at its own conclusion, and may even differ with the recommendations of the disciplinary committee. In cases where the penalty is enhanced, the executive committee may do so after granting a personal hearing to the employee if no such hearing was given by the discziplinariy committee.”

[p.483] of [1997-1998] 2 GLR 463

(The emphasis is mine.) I believe that in the context of this case and the bank rules, “a personal hearing” should be distinguished from answers to a query.

Counsel for the respondent complains that the executive committee violated the provision of rule 4. 3 by not giving the respondent a personal hearing, although the disciplinary committee did not give him such a hearing. The answer of the appellant was that the respondent had admitted that he did all the things he was charged of having done contrary to his terms of his contract, and so no personal hearing was necessary under the circumstances. I am of the view that if indeed the rules of the bank demand mandatorily that the executive committee should give a personal hearing if it wants to enhance the punishment suggested by the disciplinary committee, then it has to give that personal hearing. It cannot substitute its own procedure for the procedure laid down by the rules; and any enhanced punishment given contrary to the laid down rule will be unlawful; and if that punishment is a dismissal it will be an unlawful dismissal: see Mosi Bagyina [1963] 1 GLR 337, SC. In such a situation, I believe the only legitimate punishment will be the one lawfully suggested by the disciplinary committee.

However, it is worth noting that in rule 4. 3 the duty on the executive committee to give a personal hearing to the victim is not a mandatory one. It is discretionary. The executive committee may therefore, for its own reasons, enhance the punishment without giving any personal hearing. In this case the executive committee enhanced the respondent’s punishment without giving him a personal hearing. This behaviour by the executive committee 15is within the rules, and not in violation of them.

If the respondent challenges the decision of the executive committee for not having given a personal hearing, as a wrongful use of a discretionary power, then he ought to have shown where the committee went wrong in its exercise of that discretionary power. For example he should have shown that the committee used extraneous factors to make up the mind or absolutely wrong considerations. The court, otherwise, has no power to substitute it own descretiondiscretion for that of the executive committee.

In my opinion, the executive committee did not violate any olf the bank’s rules or those of natural justice. I would therefore allowyv the appeal and set aside the damages awarded the respondent.

[p.484] of [1997-1998] 2 GLR 463

Wood JA. I agree that the appeal be allowed. I wish however to add a few words of my own to the well-reasoned judgment of my brothers on the two important matters argued before us namely: (a) whether or not the plaintiff (hereinafter called the respondent was not negligent and so was dismissed without just cause; and (b) whether or not before his dismissal he was given a hearing.

In the court below, the main ground upon which the respondent based his principal claims for: (a) A declaration that his purported summary dismissal was unlawful and (b) damages for wrongful dismissal is contained in paragraph 5 (3) of the statement of claim. By it he contended that “by the provisions of the staff rule 4.1 he should have been tried for the alleged misconduct by an unbiased disciplinary committee in the exercise of its judicial functions after he had been given notice of the charge of misconduct and the ringht to be heard in answer to the charges.” ‘The learned trial judge concluded among other things that: “The plaintiff’s dismissal was not for good cause as the plaintiff had not done anything wrong or did not do anything negligently which led to the fraud which caused the loss to the defendant.” Not satisfied with this finding, the defendant (hereinafter called the appellant) complains by the ground 3 (a) and (b) of his grounds of appeal that:

“3. (a) The trial judge erred in law when he held that the plaintiff was not negligent when he signed as second signatory to the document.

(b) That the trial judge erred in law when he held that because the BNI which investigated the matter for fraud reported that the plaintiff signed those documents innocently in the normal course of his duties, the plaintiff was not therefore negligent.”

I agree with appellant counsel that the evidence on the record does not justify the finding that he was not negligent in the discharge of his functions.

It is not disputed that the respondent signed the draft, No 177036, for the sum of £15,000 as well as the cable authorising the payment of US$13,559.60, without first ensuring that all the correct steps had been taken by the department from which the documents originated. It is also plain that the bank did incur financial loss as a result of his conduct. The following extract shows clearly that but for his signature the two sums would not have been transferred:

[p.485] of [1997-1998] 2 GLR 463

“Q Do you agree with me that if you had not appended your signature the telex transferring the US Dollars could not have gone?

A It could not have been transferred.

Q Similarly the draft for £15,000 could not have gone if you had not appended your signature.

A This is correct.”

What was disputed was whether the respondent owed his employers any duty to check the genuineness or accuracy of the relevant documents? The appellant alleged (and particularised as misconduct and a valid ground for his dismissal) that he neglected to ensure that internal entries in respect of the said two transactions were passed to the debit of the said two customers accounts, in breach of his responsibilities as a signing official of the bank.

First, we have his own confession under cross-examination that he was negligent in the discharge of his duties. I reproduce below this all important evidence: “Q I suggest to you that as a senior manager you were negligent in signing these documents without looking at the supporting data. A Yes.” Secondly, his own confession under cross-examination that the reason why the bank demands two signatories in such transactions belies his earlier assertion that there was no obligation on him, in the discharge of his duties, to ensure that the proper steps have been taken before appending his signature. Thirdly, both the exhibits 2 and 3 imposed serious supervisory responsibilities on him in the discharge of his functions–—which functions included signing the two documents as a second signatory. By exhibit 3 in particular, he was required to “act independently of the other in ensuring compliance with laid down policies and procedures” which policies and procedures these authorised in exhibit 1, an official document which was addressed to all staff. Finally, we have it on the record that the evidence of the first defence witness that before appending his signature the respondent was under a duty to (1) check the vouchers supporting the transfer in sterling (2) ensure that the other customer has had his account debited was not in anyway challenged by the respondent.

Again, the learned trial judge based his conclusion that the respondent was not negligent also on the report of the Bureau of

[p.486] of [1997-1998] 2 GLR 463

‘National Investigation (BNI) that he could not be held liable. Thus he opined:

“In my candid opinion, the countersigning of the telex and the cheque was done in the normal course of the plaintiff’s official duty. The plaintiff should not have been blamed for causing loss to the defendants as Mr Gyasi was the person who caused the fraud leading to the loss of 13,000 US dollars and 15,000 pounds to the defendants. No wonder the BNI in exhibit R at page 22 stated that the plaintiff P K Aboagye could not be held liable for acting in good faith and performing a duty within his competence.”

I however agree with appellant counsel that there is no basis for inferrning from the Bureau of National Investigation (BNI) report that respondent was not negligent.

As the report clearly shows, the duty of the BNI was to investigate and determine who were involved with the “fraudulent use of bank drafts and telegraphic transfers.” The heading of the exhibit R clearly shows they dealt with a purely criminal matter, namely “fraudulent foreign exchange transfers.” The answer given by the BNI official, the second plaintiff witness, to a question would confirm the role played by his outfit. They were to determine who were the perpetrators of the crime of fraud: “Q You investigated to find out whether certain people had defrauded the defendants? A Yes.” Their line of action was definitely different from the position taken by the appellants in these proceedings.

The appellants complained of negligence on the part of the respondent while the latter took the position that he was not at all negligent. Negligence is not the same as fraud. The fact that respondents were never found liable for fraud is no proof that he was not negligent. Indeed the elements that must be proved in achargea charge of fraud whether criminal or even civil–—not to mention even the degree of proof is not at all those that must be proved in an action founded on negligence. So that one of the crucial issues which arose for determination in the court below and which must also engage our attention is whether the respondents owed the appellants any duty of care–—the duty to ensure that the transactions were genuine before appending his signature.

This question of negligence never engaged the attention of the BNI and they never addressed the issue of negligence in their renortreport. I would nevertheless venture to say that, even if they did,

[p.487] of [1997-1998] 2 GLR 463 and they did in fact in their report pronounce on his innocence, that would be no conclusive proof that he was not liable. The question that must be answered is whether in the present proceedings they led sufficient evidence in proof of negligence. And, the answer must be in the affirmative.

By their ground (c) the appellants complain that the trial judge erred when he held that the defendants failed to give the respondent a hearing before dismissing him. Indeed, one most damaging finding made against the appellants was that they “failed to give the plaintiff a hearing chance of being heard.” The learned trial judge based this conclusion on the finding that by rule 4 (1) of the staff rules the respondent was entitled to a personal hearing. That is to say, he was entitled to appear before the board in person to be heard orally.

The arguments of counsel for the appellants in support of this ground are firstly, that personal hearing was not at all imperative under the rules and that in any case it is reserved for those who request for such hearings. Secondly, it is his contention that as the respondent was given a fair opportunity to answer the allegations of misconduct through his written explanations (to the queries) he cannot complain of a breach of this rule of natural justice. The argument on the other side is that the issuing of queries, together with the written explanations given in answer to them, do not in the absence of oral hearing amount to a hearing within the audi alteram partem rule.

The question raised therefore is this: in disciplinary proceedings in particular, is it mandatory for the person affected to appear either physically (or possibly through his representative) before the body, to be orally heard either in proof or disproof of the charges of misconduct levelled against him; where he is not given this opportunity, can it be said that the audi alteram partem rule has not been complied with?

In my view, English authorities–—legal textwriterstext writers and the decided cases as well as a long line of decisions of this court, favour the view that in circumstances such as I have described, the absence of an oral hearing does not amount to a breach of the rule. First, the learned authors in Halsburiy’ ‘s Laws of England (4th ed), (Reissue) Vol 1 (1), para 84 has this to say about the rule:

“The standards of natural justice and fairness are highly flexible. Although the two cardinal principles stated above

[p.488] of [1997-1998] 2 GLR 463 must normally, though not invariably, be observed, the precise procedure to be followed in a given situation depends upon the subject matter of the decision or adjudication and upon all the circumstances of the case.”

PFurthermore, at paragraph 97 under the heading “Conduct of the hiearing” the learned authors write: “The existence of an express or implied obligation to conduct a hearing of some kind does not necessarily imply that there must be an oral hearing. If there is an oral hearing, the parties will normally be entitled to make submissions and call evidence on all relevant issues. Natural justice does not impose on administrative and domestic tribunals a duty to observe all the technical rules of evidence applicable to the proceedings before the courts of law. In judicial proceedings, the parties will usually also be entitled to cross-examine the witnesses of the other parties, but this is not necessarily the case in other types of hearing.”

But even more authoritatively, this court has had occasion in the case of Aryee v State Construction Corporation [1984-86] 1 GLR 424, CA to determine the scope of this rule in circumstances somewhat similar to this present case. In that case, Mr Aryee had complained that the termination of his employment with the corporation contravened the audi alteram partem audi alteram partem rule, in that without being given an oral hearing the termination by the board was based purely on correspondence on file. The Court of Appeal speaking through Adade JSC held at 433 that: “A hearing does not necessarily, at all times, involve the physical presence of the employee before the board of directors to be examined viva voce.” In answer to the critical question posed by the court: “But what is a hearing in this context?” The learned justice said at 432-433:

“Where a board writes to an employee drawing his attention to alleged acts of misconduct and impropriety and invites a written explanation, we would think that the employee would have been given an opportunity to be heard. And if the employee writes back answering the queries, and offers explanations and justifications for his conduct or otherwise upon ‘sober reflection’ withdraws the allegations and insinuations and apologises for his conduct, then surely he

[p.489] of [1997-1998] 2 GLR 463 would have taken advantage of the opportunity offered and he would have been heard.”

Indeed the weight of judicial authority—–and these are all decisions of this honourable court–—would support the view that in appropriate cases, such as this particular case, relying purely on written representations or on documentary evidence only and not giving an employee a personal hearing would not amount to a violation of the audi alteram partem audi alteram partem rule. I have in mind a number of cases. The first is PresbyteriamPresbyterian Church, Agogo v Boateng [1984-1986] 2 GLR 381, CA. In that case, the respondent had complained that her summary dismissal was null and void in so for the appellants failed to comply with the mandatory procedures laid down under the conditions of service. The court, after reviewing the facts leading to her dismissal, held, as stated in the headnote: “[T]he plaintiff stood condemned for instant dismissal . . . It did not require the setting up of a committee to determine her gross insubordination when the plaintiff by insults posed a defiant attitude before the authorities . . .”

I would also refer to Lever Brothers Ghana Litd v Annan; Lever Brothers Ghana Ltd v Dankwa (Consolidated) [1989-90] 2 GLR 385, CA. In this case the respondents were summarily dismissed from the appellants’ employment. Complaining that their dismissal was wrongful because they were not given a fair hearing (they had no oppotunityopportunity to meet their accusers face to face) they sued for damages for the wrongful dismissal. The High Court found in the respondents favour holding among other things that they were not given a fair hearing since they had no opportunity to face their accusers. On appeal, this court, relying on the Presbyterian Hospital case (supra), stated the principle of law at 388-389 as that where an employee had been guilty of mis conduct so grave that it justified instant dismissal, the employer was not obliged to set up an investigative process to give the employer a fair hearing.

It thus seems to me that in wrongful dismissal actions, whether or not a dismissal must be invalidated purely on the grounds that there had been a breach of the audi alteram partem audi alteram partem rule, for the simple reason that the party complaining had not been given an oral hearinng, is dependent on the particular facts of the case. In

[p.490] of [1997-1998] 2 GLR 463 typical common law fashion, I would not enumerate all the factors which a court must take into account in arriving at the conclusion that there has been a hearing. But I think an important criteria would be the nature of the matters in controversy. If the conflict turns on the question of the credibility of the parties and, or their witnesses, then obviously an oral hearing, especially if it is provided for under the contract of employment, is necessary.

In this particular case, the respondent had been served with a query in which he clearly was able to identify the wrongs he is alleged to have committed. He was specifically, among other things, asked to explain why he signed the two transactions without ensuring that the customers accounts were debited.

He had opportunity to state his reasons in writing. His explanation was not that he did not know of the existence of any such rules but that given the nature and volume of his work, it was impracticable for him to comply with the banks orders or regulations. His reply, exhibit F, is so self-explanatory it left no questions of fact for further determination. He did not show that there was something new that he wanted to tell the board orally. It is also plain from his explanation that not only had he violated the bank’s regulations governing counter-signatures, but he showed neither remorse for his conduct nor sympathy for his employers for the large losses they have incurred. Instead of being apologetic, and demonstrating even at that late stage some degree of loyalty, he unashamedly wrote: “If it has turned out that no internal entries were passed at the first floor to debit the customers, it is too bad.”

Bearing in mind that there remained no further questions— particularly of fact—–to be resolved, I think the executive committee had given him an opportunity to be heard and was justified in depending on the written representations to dismiss him, when on the facts before it, he was indeed negligent.

Appeal allowed

Plaintijff’s cross-appeal dismissed

LSNA