COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE vs. NORVOR [2001-2002] 1 GLR 78

CASES REFERRED TO:

(1) Janzen v Platy Enterprise Ltd [1989] 15 CR 1252.

(2) British Telecommunications Plc v Williams [1997] 1 RR 668.

(3) Salomon v Salomon & Co Ltd [1897] AC 22, HL.

(4) Lee v Lee’s Air Farming Ltd [1961] AC 12.

(5) Olarte v Commodore Business Machines [1983] 4 CHRRD 1705.

(6) Republic v Special Tribunal; Ex parte Forson [1980] GLR 529.

(7) Republic v Maikankan [1971] 2 GLR 473, SC.

(8) Republic v Asiamah [1971] 2 GLR 479, SC.

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(9) Awoonor-Williams v Gbedemah (1970) CC 18.

(10) Tait v Ghana Airways Corporation 2 G & G 527.

(11) Aduamoa II v Adu Twum II [2000] SCGLR 165.

APPLICATION by CHRAJ under section 18(2) of the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456) for an order to enforce its decision in which it had found the complaint of sexual harassment suffered by the complainant in her workplace justified and had awarded in her favour, inter alia, ¢5 million as damages for injury to her dignity and self-respect. The facts are sufficiently set out in the ruling.

Yonny Kulendi for CHRAJ.

W O Boafo for the respondent.

Ansah JA. The respondent in this case, Professor Frank Awuku Norvor, is the owner and managing director of Fan Airways Ltd that operates domestic flights in this country. In November 1996 the respondent employed Miss Augustina Salome Tettey as a ticketing and reservations officer. She also became a flight and cabin attendant in March 1997. On 2 January 1998 the respondent dismissed Miss Tettey. On 20 January 1998 she filed a complaint with the Commission on Human Rights and Administrative Justice (CHRAJ). I shall hereinafter call Miss Tettey, the complainant and Professor Norvor, the respondent and CHRAJ as the applicant.

The complaint put before CHRAJ was that the respondent sexually harassed the complainant and when she rebuffed his attempts, he dismissed her from the company. The respondent, on the other hand, wrote on 10 February 1998 to deny the allegations made against him, asserting that the complainant was dismissed on grounds that differed with what the complainant alleged. Her work performance was unsatisfactory. More particularly, it was stated that she was engaged in the following unsatisfactory conduct, namely:

(a) making unwarranted use of the telephone in the company’s reservations office for long periods, thereby disrupting the business of the company;

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(b) refusing to tidy up the office and quarrelling with her co-workers who resented her lazy attitude; and

(c) refusing to carry her own service bags (containing snacks and related supplies) from the operations office to the aircraft on which she was working.

The respondent also stated that when questioned about her refusal to carry her own bags the complainant was alleged to have retorted in reply that she was not hired as a “kaya kaya” (porter). The respondent furthermore stated that the supervisors who flew with all other air hostesses to observe their performance on flight came back with adverse reports on her. Besides all these allegations, there was another to the effect that the complainant was dismissed because of her flirtatious conduct towards several of the captains and male customers of the company which had the potential of destroying the image of the company as well as affecting the morale of the staff negatively.

On receipt of the response, CHRAJ decided to conduct a formal hearing into the complaint, which actually began on 14 April 1998. The complainant stated her version and called witnesses to testify on her behalf. Despite several adjournments granted the respondent or his counsel to appear before CHRAJ to give evidence and call witnesses to testify for him, he refused to utilise the opportunities given him fully. I must state that from the records of proceedings put before this court, there were times when even though the respondent himself was not before CHRAJ in person, he was fully represented by his counsel who duly cross-examined witnesses called by the complainant. In the course of proceedings counsel had to write to CHRAJ to withdraw his representation for the reason that he had lost contact with his client. In those circumstances, CHRAJ felt it was left with no option than to proceed to consider the available evidence before it and deliver a decision based on it and as they deemed fit under the circumstances.

Accordingly, on 15 January 1999 CHRAJ, having found the complaint to be justified, in that the respondent discriminated against the complainant on the basis of her sex, ordered the respondent to cease all acts of sexual harassment or similar violations towards the complainant A further award of ¢56,000 was made for

[p.85] of [2001-2002] 1 GLR 78 legal fees and hearing related expenses in favour of the complainant. ¢5 million was awarded for injury to her dignity and self-respect, and the humiliation she suffered; ¢3,240,000 for nine months of lost wages occasioned by the dismissal with interest thereon. The respondent’s application to review this decision failed for reasons given.

It was when the respondent failed to comply with the decision by CHRAJ that it invoked its powers under section 18(2) of the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456) to seek an order of this court to enforce its decision. The respondent rather vehemently opposed the application on three main grounds, namely that CHRAJ lacked the jurisdiction to hear the complaints because whatever the respondent was alleged to have done to the complainant was at its highest a tort or the invasion of the privacy of the complainant and did not amount to a violation of her human rights. It did not amount to discrimination as defined in article 17 of the Constitution, 1992. Secondly, even if it was a human rights issue, the enabling Act of CHRAJ dictated that the respondent was entitled to a fair hearing. The respondent did not get any. The point was also made that it was Fan Airways that dismissed the complainant and therefore the respondent could not in law be made responsible for those acts.

Before the various issues raised are resolved, it was vital that the facts are examined to find out whether or not the complainant suffered any acts of sexual harassment meted out on her by the respondent. Before CHRAJ, the complainant said that she had done just about a month at Fan Airways when the respondent started making amorous proposals to her. He also made complimentary remarks about her bodily features and appearance. He was said to have told the complainant “You are beautiful, you are the most beautiful girl in the office. . .” and that this occurred on a weekly or fortnight intervals. The respondent was said to have invited a kiss from the complainant as well. The respondent was also said to have translated this verbal onslaught into action when on several occasions he attempted to force a kiss on the complainant, hug her, hold her hand or go round and hold her from behind. There were times when the respondent actually fondled her round. The

[p.86] of [2001-2002] 1 GLR 78 complainant said that when she resisted all those attempts and advances from the respondent, he reacted by telling her that if she would not yield to his requests then she should not let it be anyone else. Thus it was that when one day she saw the complainant in the car of one Captain Larkai, he became angry, made some uncomplimentary remarks about her and threatened to carry out reprisals against her. The respondent carried out his threats by first grounding her and finally on 2 January 1998 dismissing her. In the view of the complainant, jealousy over her relationship with other men caused her dismissal and not any other ground as was given by the respondent.

The respondent did not appear at the hearing. CHRAJ then felt that the complainant was a credible witness for her evidence was devoid of any significant inconsistencies or contradictions and she was corroborated by the testimonies of other witnesses, like Miss Manso and Captain Larkai. It was in those circumstances that CHRAJ made the decision and those awards which they want to obtain an order of this court to enforce.

The respondent opposed the application on the grounds that CHRAJ did not have jurisdiction to hear the complaint. The reason was that what the respondent was alleged to have done to the complainant was at its highest a violation of or an interference with her privacy and amounted in law to a tort. As a tort, therefore, it fell well outside the scope of cases that could properly be handled by CHRAJ.

I must state that this argument must fail in law. The reason is that it is clear that many of what are decidedly fundamental human rights as known or spelt out in our Constitution (like those provided for under chapter 5 of the Constitution, 1992 of Ghana) were also protected by the criminal laws of the land or by private law, such as the law of torts. An aggrieved person was entitled to proceed under either the constitutional provisions or under any other law. The choice is for the aggrieved person to take. Once he or she exercises that option opened to him or her under the law she could not be faulted for that. The two options are not mutually exclusive of each other, though they may not be pursued simultaneously.

It was submitted before this court that even if what the res-

[p.87] of [2001-2002] 1 GLR 78 pondent was alleged to have done were true it amounted only to sexual harassment. That could not be heard by CHRAJ for that was a far- cry from amounting to discrimination or a human rights issue. The matter was not to be equated with “discriminated” as defined under the Constitution, 1992. Reference was made to article 17 of the Constitution, 1992 and this I respectfully wish to quote now:

“17. (1) All persons shall be equal before the law.

(2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.

(3) For the purposes of this article, ‘discriminate’ means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.”

The issue raised by this submission is whether or not cases of sexual harassment are to be equated with discrimination as defined under the Constitution, 1992. I must confess that there is no reported case let alone cases on sexual harassment on our local front. Notwithstanding that, cases from other countries, notably commonwealth countries with the same common law tradition or system of jurisprudence, would offer useful guidance. I must state that even though those authorities would not normally be of any binding effect on our courts, they could not be denied the weight of force they carry. The first issue to consider is what amounts to sexual harassment? Once again I must state that the term has not been given any judicial definition locally as yet and I shall have to fall on how it has been defined in other jurisdictions.

It was in the Canadian case of Janzen v Platy Enterprise Ltd [1989] ISCR 1252 where Chief Justice Dickson defined sexual harassment as: “. . . unwelcome conduct of a sexual nature that detrimentally affect the work environment or leads to adverse cones-

[p.88] of [2001-2002] 1 GLR 78 quences for the victims of the harassment.” The widely acknowledged authority on the subject, Dr Arjun P Aggarwal also said in his book Sexual Harassment in the Workplace (1987, Butterworths Canada Ltd) at p 1 that:

“Sexual harassment is any sexually-oriented practice that endangers an individual’s continued employment, negatively affects his or her work performance, or undermines his/her sense of personal dignity.”

Similarly, the Alberta Human Rights Commission defined it as follows:

“Sexual harassment is an unwanted sexual solicitation or advance made by a person who knows or ought to know that it is unwelcome. A reprisal or threat by someone in a position of authority, after a sexual advance is rejected constitutes sexual harassment.”

Dr Aggarwal listed several examples of unacceptable verbal behaviours that may constitute sexual harassment at page 11 of his book referred to above. Among them are:

(1) comments of a sexual nature about weight, body shape, size or figure;

(2) comments about person’s looks, dress, appearance or sexual habits; and

(3) remarks about a woman’s breasts, buttocks and her overall figure.

The author went on to refer to unwanted physical contact with the victim and said some of them may be explicitly sexual in nature while others, may be only accidental. He cited the following, among others, as examples: Hugging, attempted or actual kissing or fondling. Among what he called “Psychological Sexual Harassment” were the following examples: Relentless proposal of physical intimacy beginning with subtle hints which may lead to overt request for dates and/or sexual intercourse; sexual favours and propositioning.

Generally then, to constitute sexual harassment a given conduct must be unwelcome and of a sexual nature detrimentally affecting

[p.89] of [2001-2002] 1 GLR 78 the work environment. To meet the second requirement, it is not necessary that the conduct be overtly sexual; as long as it is gender related such that it would not be directed at members of the other sex, it may fall within this definition, Finally, the unwanted conduct must be shown to be sufficiently severe and persistent to create a hostile environment. I have referred to these various examples cited by Dr Aggarwal to show not only what amounts to sexual harassment but to show that in this case in particular there was evidence from the complainant, on whom the burden lay to prove what the respondent did that made her level those allegations against him, that the respondent from his verbal and physical behaviour did harass the complainant sexually. There was also evidence of psychological sexual harassment meted on to the complainant by the respondent. I shall come back to consider a view expressed by counsel for the respondent on how this matter was heard by CHRAJ later.

For the meantime, I wish to consider another ground of objection raised by counsel in opposition to this application. The gravamen of the objection was that even if there was a case of sexual harassment made against the respondent, it did not amount to discrimination as defined in article 17 of the Constitution, 1992 referred to above. In the said definition, the word “sex” or its derivatives was not used. Rather the word used was “gender.” I do not think this should present any difficulty at all. This is because the two words are synonymous with each other and may therefore be used interchangeably.

Dr Aggarwal wrote in his invaluable book that prior to 1981 sexual harassment on the job was not specifically prohibited by any human rights statute in Canada. In fact it was even doubted if sexual harassment necessarily involved discrimination. That meant, much as sexual harassment in the workplace was recognised and acknowledged, it could not be equated with discrimination. In recent years, however, according to Dr Aggarwal, the human rights commissions have taken an about turn in their thinking on the issue with the result that now sexual harassment issues are firmly equated with discrimination and has found a place in human rights legislation. That is the current thinking on this hitherto vexed question,

[p.90] of [2001-2002] 1 GLR 78 notably in countries like Canada and the United States of America. In both countries, it is now accepted that sexual harassment is a form of sex discrimination. Admittedly, there are specific legislations to give backing to this standing in those countries. This is not the situation in this country as yet. In other words, that sex discrimination is equal to sexual harassment or vice versa has not been put in a legislative form as yet. At this stage, one can only express the hope that sooner than later, the necessary law would be passed so as to bring the state of our human rights laws in step with what obtains in other jurisdictions.

The question that comes to mind is, does the definition of discrimination not cover sexual harassment? Discrimination on grounds of gender is outlawed under article 17(2) of the Constitution, 1992. To subject a person of a particular gender or sex to any practice or behaviour that would not be normally meted out to another for the reason only that those persons are not of the same gender or sex, in my view, smacks of discrimination on grounds of sex or gender. In other words, where one could reasonably say that a woman had been treated in a way far different from how a man would be treated, this is a gender-related discrimination. Where the treatment was sexual in nature, or sexual responses and favours are the desired objects of those practices and behaviors, then this is discrimination enough under article 17 of the Constitution, 1992, the fundamental law of the land. I think the article is wide enough to lead one to meaningfully say that it equates sexual harassment with discrimination.

Under the same article 17 of the Constitution, 1992, freedom from discrimination is a fundamental freedom or right enshrined in chapter 5 of the Constitution, 1992 and which must be respected by the executive, legislature and judiciary, all other organs of government and their agencies, and then all natural and legal persons in Ghana. Every person in Ghana, irrespective of his or her gender, to say the least is entitled to the fundamental human rights and freedoms in chapter 5 of the Constitution, 1992. This entitlement knows no bounds but is to be enjoyed by every person in Ghana wherever he or she finds himself or herself. The person’s workplace is not excluded. In British Telecommunications Plc v William

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[1997] 1 IRR 668 it was held that:

“. . . sexual discrimination is a particular form of discrimination on the grounds of sex which can best be defined as unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work.”

Besides article 17 of the Constitution, 1992, there is the 1948 Universal Declaration of Human Rights which binds Ghana, a member of the United Nations. This declaration prohibits all forms of gender discrimination. That is not all; Ghana is also a signatory to the United Nations International Convention on the Elimination of all forms of Discrimination Against Women, as well as The African Charter on Human and Peoples’ Rights. By its enabling Act, that is Act 456, CHRAJ is given the jurisdiction to investigate complaints alleging sex discrimination or violations of fundamental human rights or both.

I have endeavoured to say that sexual harassment constitutes a violation of fundamental human rights. When carried out in the workplace, it creates a hostile and offensive environment for members of one sex. It makes the working place demeaning, disconcertingly harsh, for a female employee has to contend with sexual demands. Nothing is more worrisome than for a woman to always go to work with the fear of having to contend with importunate sexual demands from a person she has no liking or love for hanging around her neck. It creates unnecessary fear, tension, anxiety, embarrassment, humiliation and the lowering of the person’s self-esteem. The combined effect of all this is that the person’s fundamental right to work in a conducive atmosphere is violated. It is a consideration of all these factors as well as article 17 of the Constitution, 1992 and the international treaties and declarations to which Ghana is a signatory that has compelled me to hold that CHRAJ has jurisdiction to hear the complaint made to it. What the respondent did to the complainant could well be termed a tort, it may even be construed to be criminal but in all probability was a violation of her human rights. In such a situation the complainant had the option to choose the best avenue for redress available to her. I hold then that CHRAJ had jurisdiction to hear the

[p.92] of [2001-2002] 1 GLR 78 complaint put before it. Section 7(1) of Act 456 provided that one of the functions of CHRAJ is to investigate violations of fundamental human rights and freedoms. I have said enough to show that sexual harassment is a violation of the human rights of the victim and as such is a case in respect of which CHRAJ has jurisdiction to investigate, I therefore reject the submissions by counsel for the respondent to the contrary.

Counsel for the respondent touched on another point that was of crucial importance in this application. Its importance lay in the fact that if made out, it would have a telling effect on what was done at CHRAJ. It was said that CHRAJ did not give a proper hearing in the case in that the respondent was not given an opportunity to be present at the hearing. I must say that proceedings before CHRAJ must be done in a judicial manner. Every party appearing before CHRAJ must be given a fair hearing (see regulations 5 of the Commission on Human Rights and Administrative Justice Complaints Procedure Regulations, 1994 (C 17)). What go into a fair hearing are many but at least it means the rules of natural justice must be observed most strictly throughout the entire proceedings. This is especially so in the case of the rule which says that: “audi alteram partem” or hear the other side. That no one is to be condemned unheard is one of the firm cornerstones upon which our system of resolving disputes hinges. It means in effect that not only must a party be heard, he must be made fully aware of the proceedings against him and when his adversary testifies against him, he must be given an opportunity to cross-examine him either by himself or through his counsel. At every stage he must be made aware of the proceedings.

If this is what goes into hearing the other side, then CHRAJ more than passed the litmus test. I have had the benefit of reading the record as well as the various affidavits filed in this case, supported as they were by documents. One striking feature about it is that the respondent was fully made aware of the proceedings against him and the stage it had reached. In fact he was not denied the benefit of the services of counsel of his choice, and when the hearing began he was fully represented. If anything at all, it was the respondent himself who for reasons made known to this court by

[p.93] of [2001-2002] 1 GLR 78 his counsel, chose to stay away from the proceedings. Despite being served with one hearing notice after the other, he did not attend the hearings before CHRAJ. Things got to their crescendo when counsel appearing for the respondent wrote to withdraw his representation for the respondent on no ground other than that counsel had lost contact with the respondent, It is remarkable to note that even then CHRAJ suffered the respondent one more adjournment, repeating the cycle of having the respondent served with a hearing notice. And true to his track record, the respondent did not obey the notice. It has now been made known that the respondent rather chose to go round pursuing his business in arranging some necessary rights in the air transport business in neighbouring countries. Much as the state stood to benefit in the long run in what the respondent was doing, that per se did not entitle him to stay away from the proceedings which he did at any rate at the risk of the proceedings going on without him which CHRAJ was perfectly entitled to do. Where a party after having been served with a hearing notice and made aware of the proceedings for a particular day nevertheless stays away from the hearing without obtaining from the adjudicating body an excuse to be absent, he can hardly complain that he was not given a fair hearing. It is rather the opposite. He was given an opportunity to defend himself but he chose not to avail himself of it. In such a situation he is the architect of whatever fate that would befall him. I, therefore, come to the conclusion that in the light of the facts of this case, the respondent was not denied the opportunity of being fully heard in this matter.

It must also be stated that to grant an adjournment or refuse it is always within the sole discretion of the adjudicating body which if exercised one way or the other cannot be interfered with except where there is reasonable cause to do so, which I do not find any at this stage. I also do not agree that in circumstances such as obtained in this case, the respondent should have been allowed to give his evidence after CHRAJ had closed the hearing and come out with its decision. Once again it lay within their discretion to give or refuse the respondent that benefit and I am not prepared to interfere with the exercise of that discretion. I conclude then that CHRAJ granted a full and proper hearing to the complaint. As the respondent did

[p.94] of [2001-2002] 1 GLR 78 not give evidence at the hearing, it means that he did not substantiate his claim that the complainant was dismissed on grounds other than that she refused the proposition of love to her by the respondent. CHRAJ was therefore left with no choice than to find as it did for the reasons why the complainant was dismissed and that the respondent did harass the complainant with request for sexual favours which she refused.

I now come to a very important matter raised by counsel for the respondent. It relates to who is to answer for what the respondent allegedly did. Was it the respondent himself or his employers? The argument put up was that the dismissal of the complainant was effected by Fan Air itself and the respondent being only the managing director was legally distinct from the company so that the company should be held liable for the acts of its employees. The case of Salomon v Salomon & Co Ltd [1897] AC 22, HL and then Lee v Lee’s Air Farming Ltd [1961] AC 12 were referred to. The reply was that in certain circumstances the veil of incorporation would be pierced for the realities to be seen, in which case the employee would be held liable for his personal acts. Once again I have had to take recourse to Dr Aggarwal’s invaluable book cited above where this issue was fully discussed in chapter 4 under the heading “Employer’s Liability for Sexual Harassment of Employees.” At p 189 the point was made that:

“The courts and tribunals, thus, are not confined to one single legal theory in determining whether or not the employer is responsible to its employees for the sexual harassment caused by it supervisory and non-supervisory personnel. The courts and tribunals have found the employer responsible for the acts of its employees, depending upon the circumstances in each case, on the basis of vicarious liability, law of agency, organic theory (or controlling mind), and doctrine of strict liability.”

At page 188 the organic theory of corporate responsibility is stated to mean that:

“Where the employer is a corporate entity and an employee is in contravention of the Code and that employee is part of the ‘directing mind’ of the corporation, then the employer

[p.95] of [2001-2002] 1 GLR 78 corporation is itself personally in contravention. The act of the employee becomes the act of the corporate entity itself, in accordance with the organic theory of corporate responsibility.”

Here it would not be difficult to say that a managing director in the person of the respondent in this case was a directing mind of Fan Airways in which case by the organic theory of corporate responsibility, Fan Airways should be held responsible for the acts of its managing director. But then as seen already, the courts do not and are not obliged or limited and pinned to any particular yardstick or theory in fixing liability in sexual harassment cases. Rather, the courts would look at the hard facts of each case in particular and do justice in the case. Accordingly, in Olarte v Commodore Business Machines [1983] 4 CHRRD 1705 Professor Cummings stated the situations in which an employer may be personally in breach of the Human Rights Code. He named three other instances as:

(i) where the employer himself, directly or indirectly, intentionally infringes a protected right;

(ii) where the employer is in a constructive discrimination; and

(iii) where the employer himself does not take part in the discrimination but authorises, condones, adopts, or ratifies an employee’s discrimination. . . or where the employer knew or should have known of the discrimination, and did not take reasonable steps to put an end or at least minimise the discrimination, abuse or practise.

In each of the above instances the company would be responsible for the acts of the employer, the respondent in this case. In determining liability in sexual harassment cases then one need not limit oneself exclusively to only one theory. It could be seen from the situations so ably stated by Professor Cummings that where situations (i), (ii) and (iii) do not obviously apply such as in this case, it would be unfair to single out only the organic theory for application. I rather think that where the respondent went out of his way to seek his pleasures by propositioning so profusely to an employee, he alone should shoulder all responsibility. At any rate, if the respondent feels that someone else or together with him

[p.96] of [2001-2002] 1 GLR 78 should suffer for his deeds nothing stops him from roping that other person in to face the music. There are well-known procedures for doing that and he should exploit them. Also non-joinder or mis-joinder of a party does not defeat an action and an action would be determined on its merits. This action would not therefore fail because the company has not been sued but the respondent has been.

Lastly, I come to another point raised for the respondent. It was that the issue as to whether or not what was alleged to have been done to the complainant fell within the jurisdiction of CHRAJ should have been referred to the superior court for interpretation. There can only be a short answer to this submission. It is to be found in what Taylor J (as he then was) said in Republic v Special Tribunal; Ex parte Forson [1980] GLR 529 at 531 in the headnote, namely that:

“. . . it was not every question of an interpretation of an article of the Constitution, 1979, that should be referred to the Supreme Court under article 118(2) of the Constitution. Where no difficulty of interpretation existed, there was no need for the High Court to refer an article or any other matter contained in the Constitution to the Supreme Court for interpretation.”

His Lordship applied the dictum of Bannerman CJ in Republic v Maikankan [1971] 2 GLR 473 at 478, SC. See also Republic v Asiamah [1971] 2 GLR 479, SC; Awoonor-Williams v Gbedemah, Supreme Court, 8 December 1969, unreported; digested in (1970) CC 18; Tait v Ghana Airways Corporation 2 G & G 527 and Aduamoa II v Adu Twurn II [2000] SCGLR 165.

Accordingly, I hold that there was nothing difficult in understanding the meaning of discrimination as internally defined in the Constitution, 1992 itself so as to call for any reference to the Supreme Court. There was no need for CHRAJ or this court to have referred any matter to the Supreme Court for interpretation or any purpose.

When CHRAJ comes to court under sections 9 and 18(2) of Act 456 to seek a remedy as may be appropriate for the enforcement of

[p.97] of [2001-2002] 1 GLR 78 its recommendations, it is not open to the court before which the application was made to reopen the matter as it were, by calling evidence afresh. The court, it must be stated, is not sitting on appeal on the case either. It is when the court finds that in hearing the complaint CHRAJ did not observe the rules of natural justice, or exceeded its jurisdiction or investigated a case where it had no jurisdiction to do so, or for any other reason, the decision was legally unenforceable that the application must fail. I have not been satisfied that CHRAJ is not entitled to the relief it seeks from this court.

In the main, CHRAJ ordered the respondent to pay some sums of money to the complainant. He was also ordered to cease and desist from further harassing her sexually. The money aspect of the judgment should be enforced by the usual methods in enforcing such judgments. It must be mentioned that it was only in respect of the award for lost wages that interest was to run on the amount awarded. In other words, no interest was to run on any other award.

I think the application should succeed and an order is hereby made for CHRAJ to use the normal ways known to the law to enforce its decision against the respondent.

Costs are in the discretion of the court and this discretion must be exercised judicially. I think on the whole this case has served a useful purpose of delimiting what amounts to sexual harassment in our law. I shall not punish the respondent now for what he did by muting him with heavy costs. The ¢7 million asked by counsel for CHRAJ is by all standards astronomically high. I award ¢2 million costs for CHRAJ.

Application granted.

FGA