DESMOND OPOKU WARE vs. KWAMANMAN RURAL BANK

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- AD. 2026

CORAM: BAFFOE-BONNIE CJ (PRESIDING)

PROF. MENSA-BONSU (MRS.) JSC

KWOFIE JSC

ADJEI-FRIMPONG JSC

ACKAAH-BOAFO JSC

CIVIL APPEAL

NO. J4/20/2026

8TH JULY, 2026

DESMOND OPOKU WARE ………. PLAINTIFF/APPELLANT/APPELLANT

VRS

KWAMANMAN RURAL BANK ……… DEFENDANT/RESPONDENT/

KWAMANG-ASHANTI RESPONDENT

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JUDGMENT

_____________________________________________________________

PROF. MENSA-BONSU (MRS) JSC:

This is an appeal to the Supreme Court emanating from a judgment of the Court of Appeal dated 15th June, 2023.The Judgment of the Court of Appeal affirmed mostly the decision of the trial High Court.

FACTS AND BACKGROUND

The plaintiff/appellant/appellant (hereinafter called “appellant”) was an employee of the respondent rural bank. He had been appointed in 2008 as the sub-assistant accountant and was subsequently upgraded to the position of Head of the Micro Finance Unit until he was dismissed on 25th August, 2020.

The respondent commissioned an investigation by conducting a Credit Department audit into certain activities within that department of the bank. The Investigative Report and audit enquiry found that the appellant had misconducted himself by suppressing funds to the tune of Five Thousand Three Hundred and Eighty-eight Ghana Cedis (GHC 5,388.00), and also absenting himself from work without lawful excuse contrary to the policy of the respondent bank.

The enquiry made adverse findings against the appellant to the effect. The appellant challenged the hearing claiming that he was not invited for his side of the story to be heard during the proceedings. The respondent contended that the appellant was given ample opportunity to be heard, but same was refused. Consequently, the respondent denied the allegation of breaching the principle of natural justice. The appellant was summarily dismissed. The appellant challenged the basis of his dismissal whilst the respondent maintained that the sanction imposed was lawful.

The appellant also complained that the allegation of dishonesty made against him by the respondent in the dismissal letter constituted defamation of his person. Further, that the respondent had unjustifiably deducted an amount of GHC17,432.40 from his salaries from November, 2019 till his dismissal on 25th August, 2020.

On the basis of these claims the appellant brought an action against the respondent in the High Court and prayed for the following reliefs: –

A declaration that the dismissal of the plaintiff from work by the defendant on 25/08/20 was wrongful and unfair.

A declaration that the dismissal of the plaintiff from work by the defendant on 25/08/20 and other conducts of the defendant sinned against sections 15,17,18,62,63,69 and 70 of the Labour Act, 2003(Act 651).

A declaration that the dismissal of the plaintiff from work by the defendant on 25/08/20 breached the rules of natural justice.

An award of One Hundred Thousand Ghana Cedis (GHC 100,000.00) as damages for wrongful dismissal and breach of contract.

A declaration that paragraphs one and two of the letters authored by the defendant on the 25/05/20 entitled “Dismissal from Work” in which the defendant accused the plaintiff for alleged acts of dishonesty and suppression of Five Thousand Three Hundred and Eighty-eight Ghana Cedis (GHC 5,388.00) are defamatory.

An award of One Hundred Thousand Ghana Cedis (GHC 100,000.00) as damages for liberal particulars of which are clearly stated in paragraphs one and two of the letters dated 25/08/20.

An order compelling the defendant to pay the plaintiff a total sum of Seventeen Thousand Four Hundred and Thirty-Two Ghana Cedis Forty Pesewas (GHC 17,434.40) which the defendant has unlawfully deducted from the plaintiff’s salary and allowance between November 2019 to August 2020.

Interest at the prevailing commercial bank rate on the said GHC 17,432.40 from November 2019 till date of final payment.

General damages for the embarrassment and emotional stress the defendant has caused and inflicted on the plaintiff.

Cost including legal fees.

Any other reliefs that the Honourable Court may deem fit.

The trial High Court held that the appellant failed to prove the reliefs endorsed on his claim except the prayer for recovery of the amount of GHC 17,432.40 which the court held to have been unlawfully deducted from the salaries of the appellant.

Aggrieved and dissatisfied with the judgment of the High Court the appellant appealed to the Court of Appeal on the following grounds;

That the judgment of the learned trial judge is against the weight of evidence

The learned trial judge erred in law when he held at page 17,21 and 22 of the judgment that the Plaintiff waived his right to be heard through Exhibits “G1” and “K1” without paying due regard to the contents of Exhibits “D”, “G1” and “K1”.

The learned trial judge erred in law when he held at page 18 and 19 of the judgment that an alleged cash suppression, which is a criminal offence, levelled by the defendant bank against the plaintiff has been proved because the plaintiff was uncooperative per Exhibits “G1” and “K1” without adverting his mind to the presumption of innocence of the plaintiff and his right to fair trial.

That the learned trial judge erred in law when he stated at pages 18-21 of his judgment that the plaintiff’s failure to appear before the IMC of the defendant bank is proof of his misconduct and that he had indeed suppressed the funds

The learned trial judge erred in law when he stated at page 22 of his judgement that the paragraphs 1 and 2 in the dismissal letter of the Defendant bank dated 25th August, 2020 was a fair comment and not defamatory since the plaintiff waived his right to appear before the IMC of the bank.

Additional ground of appeal to be filed upon receipt of the Record of Appeal.

The Court of Appeal dismissed the appeal in its entirety and the appellant brought the instant appeal to this honourable Court on the following grounds:

That the judgment of the appellate court dated 15th June, 2023 is against the weight of the evidence.

The appellate court misdirected itself when it held that the summary dismissal of the Appellant by the respondent was both substantively and procedurally fair.

PARTICULARS OF MISDIRECTION

The appellate court failed to consider the appellant’s the appellant right to be furnished with the copies of the Inusah Sumaila report (Exhibit “1”) and attendance register (Exhibit “3”) to enable him respond to specific allegations contained in them.

The appellate court failed to take into consideration the non-justification of the failure of the respondent bank to furnish the appellant with information the appellant requested from it.

The appellate court at page 19 of its judgment dated 15th June 2023 misapplied the decision in Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Others [2003-2004] SCGLR 420 @ P465 in view of Exhibits ‘D’, ‘G1’,’1’ and ‘3’.

The appellate court misdirected itself by imputing knowledge of the contents of Exhibits ‘1’ and the scope of its investigation on the appellant by virtue of the previous position the appellant held in the respondent bank.

The appellate court failed to take into consideration the contents of Exhibits ‘E’ and ‘E’ in its discussions at page 28 to 29 of the judgment in terms of a duty imposed on administrative bodies to act fairly and not arbitrary nor capriciously in disciplinary process.

The appellate court failed to take into consideration in its decision at pages 28 to 29 of the judgment the statement taken from the appellant by the Abuakwa Police on 4th February 2020 in which the appellant denied the alleged cash suppression as indicated in paragraph 39 of the Witness Statement of the Appellant.

The appellate court failed to take into consideration in its decision at pages 28 to 29 of the judgment the fact that both Exhibits ‘1’ and ‘2’ did not indict the appellant of the total sum of Five Thousand Three Hundred and Eighty-Eight (GHC 5,388.00) stated in Exhibit ‘C’.

The appellate court misdirected itself when it held that the respondent had discharged the burden of proving the allegation of cash suppression against the appellant.

LEGAL ARGUMENT OF THE APPELLANT

The appellant relies on section 52 of the Evidence Act (Act 323) to argue that a trial judge has the discretion to exclude relevant evidence in compliance with the exceptions provided under section 52 of Act 323. He relies on this law to say that one Emilia Sarkodie was indicted for the offence of cash suppression, for which the appellant has been accused and dismissed from the respondent’s employ.

A memo to that effect according to the appellant was rejected by the court on the basis that it was tendered after case management conference and it would be a surprise to the other party if allowed to be tendered at that time. In the appellant’s view this document was relevant and essential to appellant’s case and same came to their attention after case management conference. According to the appellant, the rejected document shows that it was Madam Sarkodie and not the appellant who suppressed the funds. He referred to Exhibit ‘M’ in which he claims the admission by Sarkodie was captured.

The appellant further argues that the lower court held against the respondent’s position that he suppressed funds when the respondent has produced evidence (Exhibit ‘E’) to the contrary. The appellant says that no evidence of cash suppression has been admitted by him when a thorough review of the record is done particularly Exhibit ‘2’ (same as Exhibit “M’) which is the work of the Sumaila Committee (Exhibit ‘1’) on the alleged cash suppression matter.

It is the appellant’s further submission that the testimony of DW1 shows that his review work, did not focus on the account of the Genesis Group which is alleged to have suffered the suppression. Besides, it is the contention of the appellant that Exhibit ‘2’ and DW1’s testimony (ROA pp 172 and 173) shows that there was evidence that Sarkodie admitted to the cash suppression conduct prior to her exit from the respondent’s employment. The appellant says he was unjustly accused because of his supervisory role with the respondent and nothing more.

It is the contention of the appellant that Article 23 of the Constitution of Ghana, 1992 and the natural justice principles were breached as the respondent did not act fairly and reasonably in determining the case against him. The appellant denied waiving his rights to be heard when served with the queries by the respondent. He states that he only took steps to seek more information in order to answer the query, and points to Exhibits “C”, “D’, “E’, ‘E1’ and ‘F2 on the record. The appellant says that by not giving him a hearing, the respondent bank breached its own policy document on conditions of service as stated in (Exhibit “M”) and Exhibit “J” series.

The appellant further contends that the respondent refused to adhere to the directive of the police that the parties should reconcile their account as stated in the audit report which caused the police to forward the docket to the Attorney-General for advice. The said advice was not ready, neither was he charged, before his dismissal.

The appellant states further that the respondent violated his right to fair hearing under article 19 of the 1992 Constitution of Ghana more so when he was ready to avail himself to be heard. On the principle of natural justice, he cited Republic v High Court, Denu;Ex parte Agbesi Awusu II(No. 2) (Nyonyo Agboada (Sri III) Interested Party [2002-2004] SCGLR 907.

The appellant submits that he disagrees with the reasoning of the Court of Appeal that the summary dismissal of the appellant was fair substantively and procedurally since, in his view, the presumption of innocence rule was breached, Further, that the standard set for criminal liability ie proof beyond reasonable doubt under sections 13 and 17 of Act 323, was not met before his dismissal. He added that the respondent went ahead to dismiss him when the arrangement was that they were to wait for the police’s investigations (Exhibits ‘H’ and ‘E’) and the fact that a former employee had also admitted guilt on the cash suppression allegation. The appellant cited the case of In re Ashalley Botwe supra, and states that the legal burden never shifted on him to prove any allegation.

The appellant finally argues that he is a prominent public figure by his portfolio with the respondent and as such matters relating to him, including statements directed at him are of public interest. To that end, he says that any statement made at his person must not defame him. Therefore, the allegations that appellant is dishonest without same being proved has injured his reputation. Appellant submits therefore that the statements made against his person were maliciously made and not fair comments as held in the cases of Slim v Daily Telegraph Ltd [1968] 1 ALL ER 497 at 503 by Lord Denning MR and Gbadegbe JSC in Daily Dispatch and Other v Bonsu and Others (unreported) as cited by the trial judge.

RESPONDENT’S LEGAL ARGUMENTS

The respondent begun his argument by rejecting appellant’s claim that Exhibit ‘M’ labelled Sarkodie as the person who suppressed the funds of the Genesis Group Account. Rather, respondent submits that the appellant and the said Sarkodie were those managing the accounts and that Exhibit ‘M’ formed the basis for the query that was served on the appellant to which he failed to respond.

The respondent further submits that Exhibit ‘M’ which is a report on the alleged case of suppression in favour of the Genesis Traders Association did not form part of the record of appeal as it was not offered in evidence. The respondent explains that Exhibit ‘M’ was the investigative report generated based on account statements and interviews of persons of interest, including the appellant.

The respondent states that it was Exhibit ‘M’ that provided prima facie evidence against the appellant and this formed the basis of the action against him. According to the respondent, the officer who prepared Exhibit M testified during the trial that the appellant was involved in the preparation of the record. The respondent indicates that Exhibit “M” and Exhibit “1” were the foundation of the queries (Exhibit ‘C’ and Exhibit ‘G’ on his absence without permission) that were served on the appellant which he refused to answer. The appellant also declined other invitation to him to appear but rather resorted to writing to the respondent through his lawyer.

The respondent contends that a party who is accused of misconduct when given an opportunity to be heard and fails to do so, disables himself from being heard and cannot later turn around and accuse an adjudicator of breaching the rules of natural justice. In support of this principle, cases cited were: Republic v High Court (Fats Track Division) Ex parte State Housing Co. Ltd (No. 2) [2009] SCGLR 185; Laguda v Ghana Commercial Bank [2005-2006] SCGLR 388 at 401-402 and Aboagye v Ghana Commercial Bank [2001 – 2002] SCGLR 797 at pp 828-831. The respondent states that the learned trial court judge identified and indicated same that the appellant declined the opportunity to appear before the disciplinary committee to be given a hearing on the allegations of suppressing the account and being absent without leave in Exhibit “G”.

The argument of the appellant that he was dismissed when the alleged offence against him had not been proved beyond reasonable doubt was addressed by the respondent who answered that the dismissal was a disciplinary action taken against the appellant based on the evidence gathered. The respondent further indicates that it was stated clearly in appellants dismissal letter (Exhibit “L”) that the disciplinary action was without prejudice to any police investigation being undertaken.

The respondent in further argument contends that where a statement is deemed defamatory, the defence of qualified privilege would vitiate the element of publication. Again, where the claim of qualified privilege is upheld, it would be deemed there was no publication because the person who received the statement had a right to receive same. The respondent submits that Exhibit ‘L’ dismissing the appellant was drafted and sealed to the appellant by duly qualified officers of the respondent company in the performance of their jobs, and that the appellant cannot prove that other persons who were not entitled to have access to Exhibit “L” did have access. Therefore the letter was not made public for the respondent to be liable for defamation. The respondent relied on the following cases: Stuart v. Bell [1891] 2 Q.B. 341 at p. 354, (CA) and Adam v. Ward [1917] A.C. 309 at p. 334.

The respondent further challenged the non-particularization of the defamation claim as required to be done in civil proceedings.

The grounds of the appeal are discussed in the order in which they were raised.

That the judgment of the appellate court dated 15th June, 2023 is against the weight of the evidence.

It is trite law that an appeal is in the nature of a re-hearing, and therefore an appellate court comes under an obligation to re-hear the case See: Praka v. Ketewa[1964] GLR 423, per Ollenu JSC. It is also trite law that whenever this omnibus ground of appeal is pleaded, an invitation is thrown to the court to re-evaluate the entire record to ascertain whether the judgment given at trial was supported by the evidence on record. See: Tuakwa v Bosom [2001-2002]SCGLR . The authorities also enjoin the appellant in such a case to point out or demonstrate to the appellate court, the lapses complained about in the judgement being appealed. See: Djin v Musah Baako (2007-2008) SCGLR 686.

Since an appeal is an invitation to the appellate Court to re-evaluate the conclusions of the Court below and to see if the conclusions rendered are supported by the totality of the evidence, the Supreme Court can interfere even if the two lower courts made concurrent findings. The circumstances for such intervention are: where the lower court committed a fundamental error in making findings of fact but the first appellate Court did not detect the error but affirmed it, thereby perpetuating the error; where the lower courts failed to properly evaluate the evidence; or came to wrong conclusions from the accepted evidence; or where its findings are shown to be perverse. Obrasiwa II and others v. Otu and Another [1996-7] SCGLR 618, at 624 had earlier outlined these exceptional circumstances as where it

“was established with absolute clearness that some blunder or error resulting in a miscarriage of justice, was apparent in the way in which the lower tribunals had dealt with the facts. It must be established, e.g., that the lower courts had clearly erred in the face of a crucial documentary evidence, or that the principle of evidence had not been properly applied; or that the finding was so based on erroneous proposition of law that if that proposition be corrected, the finding will disappear … It must be demonstrated that the judgments of the courts below were clearly wrong.”

See also: Gregory v Tandoh [2010] SCGLR 971 at 985-986; Fosua and Adu-Poku v. Dufie (Deceased) & Adu Poku Mensah [2009] SCGLR 310 at 313. In Fynn vs Fynn (2014)77 GMJ 43 SC the Supreme Court speaking through Wood (CJ) held that this honourable court,

“has clearly set out the legal principles governing appeals against the concurrent findings of fact and conclusions of two lower Courts. The principle is that ordinarily, a second appellate Court, such as this Honourable Court, would not interfere with the findings of fact made by a trial Court and confirmed on appeal by a first appellate Court. A second appellate Court would overturn such findings and conclusions only in exceptional cases”.

However, in Kpakpo v Brown [2001-2002] SCGLR 876, the Supreme Court observed that where the findings and conclusions are supported by the record and no miscarriage of justice has resulted from the decisions; the second appellate Court would have no choice but to confirm to those findings and conclusions(See also: Musah v Musah [2011] SCGLR 819; Fabrina Ltd v Shell Ghana Ltd [2011] SCGLR 429, at 449; Obeng & Others v. Assemblies of God Church, Ghana [2010] SCGLR 300 at 409; and Mensah v Mensah [2012] 1 SCGLR 300. In Obeng v Assemblies of God Church, supra, Dotse JSC enunciated other circumstances under which a second appellate Court’s interference would be justified, thus:

“…where findings of fact have been made by a trial Court and concurred with by the first appellate Court, then the second appellate Court like this Court, must be slow in coming to different conclusions unless it was satisfied that there were strong pieces of evidence on record which made it manifestly clear that the findings by the trial court were perverse”.

From the facts and evidence led, two major issues can be identified as forming the basis for determination of this appeal. These are

Whether or not the appellant was fairly dismissed from his employment with the respondent in accordance with procedural and substantive legal principles such as due process and natural justice.

Whether or not the letter of dismissal by the respondent contained material that was defamatory of his person.

AUDI ALTERAM PARTEM

It is a cardinal principle of law that a person who is accused of misconduct must be heard in his or her defence. As the Supreme Court restated in Serbeh-Yiadom v. Stanbic Bank (Gh) [2003-2005] 1 GLR 86 ,

“it is a salutary and well-known principle of law that a person should be given the opportunity of being heard when he is accused of any wrong doing before any action is taken against him”

Ex-parte Salloum (Senyo Coker(interested party )[2011] 1 SCGLR 547 restated the same principle that,

“[I]f a party is denied the right to be heard as in this case, it should constitute a fundamental error for the proceedings to be declared a nullity. The Courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram partem rule to the extent that no matter the merits of the case, its denial is seen as a basic fundamental error which should nullify proceedings made pursuant to the denial.”

The American case of Fuentes v. Shevin 407 US 67 (1972) 80 (US) is equally instructive. In that case, the court stressed:

“For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner’.

What if the party was given an opportunity to appear and to participate in the hearing and failed to do so? The authorities are equally clear that a deliberate absence amounts to a waiver of the right to be heard. In Republic v. High Court (Fast Track Division); Ex parte State Housing Co. Ltd. (No.2) Koranteng-Amoako Interested party [2009] SCGLR 185.

The appellant terminated the employment of an officer who had instituted an action against them for persecution, discrimination and harassment. Trial court found for her because the defendant failed to appear despite service of hearing notice. The defendant corporation then applied for certiorari to quash the decision.

It was held, inter alia, at p.190 per Chief Justice Georgina Wood:

“A party who disables himself or herself from being heard in any proceedings cannot later turn round and accuse an adjudicator of having breached the rules of natural justice”.

The same point is made in Republic v. High Court (Human Rights Division), Accra; Ex parte Josephine Akita (Mancell – Egala and A-G, Interested Parties) [2010] SCGLR 374 at 384; where Brobbey JSC stated the principle as follows:-

“a person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his own decision to boycott proceedings cannot later complain that the proceedings have been proceeded without hearing him and then plead in aid the audi alteram partem rule”.

See also : Republic v. High Court, Cape Coast ; Ex Parte: John Bondzie Sey (University Of Education Winneba; Interested Party) [2019-2020] 2 SCLRG 575 at 606 per Dotse JSC

“ Where a party deliberately absents himself from court even though he had notice of the hearing, that would constitute a waiver of the right to be heard.”

The Court ruled that the failure of the applicant to attend the proceedings though he had been invited on three occasions amounted to a waiver of his right to be heard.

All the above authorities are clear on the point of deliberate absence or neglect to attend proceedings whose deliberations could affect one’s right to be heard. In the instant case, the trial Court’s decision that the appellant was given fair hearing by the respondent and that there was no breach of the rules of natural justice or legal principles is supportable on the evidence. From the record, when the respondent detected that there were financial irregularities through the various audits and internal investigations, a query was served on the appellant as he was a person of interest on the accounts on which the investigations were conducted. Without answering the query or cooperating in any way, the appellant rather engaged a lawyer to act on his behalf. The lawyer made written contacts with the respondent and demanded documents such as the audit report in order to respond to the query. The respondent further invited the appellant before a disciplinary panel to hear the allegations stated against him in Exhibit “K”. The lawyer for the appellant responded to this invitation in writing instead of showing up with the respondent to appear before the committee. The allegations against the appellant thus stood unanswered as he had spurned the opportunity to be heard.

SUMMARY DISMISSAL

The appellant was dismissed for reasons of gross misconduct and dishonesty through Exhibit “L”. In the case of Irene Tetteh Enyo v. Electricity Company of Ghana Ltd (Civil Appeal No J4/44/21 dated 29th June, 2022 (Unreported) it was held that every termination of employment or dismissal from work must comply with substantive law and due process of law. That principle had been applied earlier in Lagudah v. Ghana Commercial Bank Limited [2005-2006] SCGLR 38. In that case, the Supreme Court speaking through Baddoo JSC stressed that an employer has the right to summarily dismiss an employee whose conduct is incompatible with the due or faithful discharge of his duties. At p. 401, the learned Justice stated thus:

“I am not persuaded that, in a commercial setting, in the absence of a contractual provision to the contrary, an employer is bound to comply with the rules of natural justice. At Common Law, it is enough if the facts objectively establish cause for dismissal”

In Bani v. Maersk Ghana Limited [2011] 2 SCGLR 796, Dr. Date-Bah JSC, discussed the legal issues applicable and also took the opportunity to restate the Ghanaian common law position on the termination of contracts of employment and the extent to which these have been modified by the statutory provisions in the Labour Act 2003 (Act 651). Dr. Date-Bah JSC cited with approval the dictum of Osei-Hwere JSC in Lever Brothers Ghana Ltd v Annan (Consolidated) [1989-90] 2 GLR 385. Osei-Hwere JSC delivering the judgment of the Court of Appeal (at pp.388-9), stated that:

‘The law is that where an employee has, in fact, been guilty of misconduct so grave that it justifies instant dismissal, the employer can rely on that misconduct in defence of any action for wrongful dismissal, even if at the date of the dismissal the misconduct was not known to him: quoting from Boston Deep Sea Fishing & Ice Company v Ansell (1888) 39 ChD 339 at 363, CA’.”

Dr Date-Bah JSC therefore held that the trial judge all but found the misconduct or dishonesty of the plaintiffs proved. From the principle of law which entitles an employer to dismiss summarily an employee he considers guilty of serious misconduct, such as dishonesty, it is evident that the employer is not obliged to set up an investigative process to give the employee a fair hearing: making reference to Presbyterian Hospital, Agogo v Boateng [1984-86] 2 GLR 381, CA. What is required is that when the employee’s dismissal is brought to question in a court of law the employer’s action can be vindicated.

There is no denying the fact that the investigations and internal audits conducted by the respondent focused on the accounts supervised by the appellant. The argument made by the appellant that one Madam Sarkodie, former colleague admitted to having suppressed the funds and that he was not liable for same is neither here nor there. As the inquiry of the respondent showed, he was in charge of the said Genesis account as a supervisor, which meant that even if his subordinate had admitted to the acts, his own failure to detect the suppression of funds and other misconduct made him culpable. The conduct of the respondent before arriving at the dismissal decision against the appellant was consistent with this principle.

In further answer to appellant’s contention that the committee did not find him liable by the evidentiary standard of proof beyond reasonable doubt, it has been held by this honourable Court in Kofi Senkyire v. Abosso Goldfields Ltd., Civil Appeal No. J4/20/2005 delivered on 26th June 2006 (Unreported), that when a committee of discipline sits to go into a matter and to give a plaintiff a fair chance to explain himself, it does not sit as a criminal court, where the evidentiary standard is proof beyond reasonable doubt. The decision in Tettey-Enyo, supra, also supports the Kofi Senkyire case, supra, that committees of enquiry are administrative tribunals, and when they take decisions on rights of parties, they do not operate with the evidentiary standard of proof beyond reasonable doubt as in criminal trials.

Undoubtedly, when one applies the decision in Serbeh-Yiadom v. Stanbic Bank, supra to the fact of this instant case there is no doubt the appellant was given sufficient opportunity to put his side of the story out before the disciplinary committee for a decision to be taken on his dismissal. He was the one who spurned the opportunity and thereby waived his rights. This was echoed at page 405, by Dr Date-Bah JSC that,

“[I]n the ordinary common law of employment, unaffected by public law considerations, there is no obligations on an employer to set up a tribunal or committee of enquiry before he can dismiss an employee summarily for misconduct .Irrespective of the procedure which he adopts ,if he establishes facts justifying the dismissal, that is enough.”

It is clear that the decision of the committee of discipline that dismissed the appellant was neither substantively nor procedurally flawed.

DEFAMATION

On the ground of appeal that the respondent has defamed the appellant by the letter of dismissal, there is no merit. First, the appellant was required by procedure under the Civil Procedure (C.I 47) to particularize the alleged defamation in his pleadings, but he failed to do so in his original statement of claim. Second, the findings of the respondent concerning the appellant’s misconduct and suppression of funds are not denied, and these are what formed the basis for the dismissal of the appellant.

The law has laid out elements that must be determined in coming to a conclusion that a case of defamation has been made out. Defamation has been defined by numerous authorities and academic texts. In Winfield & Jolowicz on Tort (13th edition, 1989) W.V.H Rogers (ed) Sweet & Maxwell, London, (International Student edition) 1990, Defamation is defined at p. 294 to be,

“the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him.”

At p 295, the learned authors discuss the community of “right-thinking members of society” thus

“The words must tend to give rise to the feelings mentioned in the definition. But on the part of whom? The answer is the reasonable man. The standard must be that of the ordinary citizen who is “neither unusually suspicious nor unusually naïve and [who] does not always interpret the meaning of words as would a lawyer for he is not inhibited by a knowledge of the rules of construction. He may thus more freely read an implication into a given form of words, and, unfortunately as the law of defamation has to take into account, is especially prone to do so when it is derogatory”.

These principles have been laid out in the Ghanaian case of Owusu-Domena v. Amoah [2015-2016] 1 SCGLR 790. At pp.801-802 of that judgment, Benin JSC restated the common law principles on the definition and law of defamation. Quoting Halsbury’s Laws of England (4th ed) (Reissue) Vol 28 page 7, para 10 he defined the tort as follows:

A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling trade or business.”

He then went on to explain that

“There are two steps involved in establishing that the publication was defamatory: first, whether the publication was capable of a defamatory meaning… next the defamation complained of may be established from the prevailing facts and/or circumstances. Proof of either would suffice for the plaintiff.”

From these, he teased the principles that in establishing that a publication was defamatory the plaintiff must plead and lead evidence on the following matters in order to succeed: –

i) there was publication by the defendant

ii) the publication concerned him, the plaintiff

iii) the publication was capable of a defamatory meaning in its natural and ordinary sense;

iv) alternatively, or in addition to (iii) above, that from the facts and/or circumstances surrounding the publication, it was defamatory of him, the plaintiff and

v) if the defendant pleads the defence of qualified privilege or fair comment that the defendant had been actuated by malice, and malice in such matters would be said to exist if there was spite or ill will on the part of the defendant or if the court found indirect or improper motive against the defendant in publishing the words complained of.

To this list, by Benin, JSC, it would be necessary to add another point (v): “that the defendant has no defence.”

This addition is important because there are a number of defences to an action for defamation,

Defences to defamation

In addition to the defence of justification which the Court of Appeal accepted as having been made out, there is also qualified privilege. The defendant seemed to have relied on the defence of fair comment but as would be obvious from an analysis of the facts, this defence would be inappropriate for the fact situation. See Harry Street, The Law of Torts (6th edition) Butterworths, London 1976, chapter 16, pp.291-331.

In Buachie v Samman [1982-83] PT II GLR 797, a decision by Ampiah J. (as he then was) in the High Court, Sunyani the defendant pleaded inter alia qualified privilege. In that case, the defendant had written a letter to the Regional Director of Education, Sunyani, alleging an adulterous association between the plaintiff, an Assistant Director of Education, Sunyani and the defendant’s wife, the headmistress of a school in the district for which plaintiff had supervisory responsibility. In the letter, the defendant had complained that the plaintiff has used his official position to have sexual intercourse with the defendant’s wife, while his marriage with her was still subsisting. The same complaint had been made by defendant to the parents of his wife and other persons including the head of the women’s section of a secret society to which both of them belonged. The plaintiff took umbrage at this complaining that it had greatly damaged his reputation and chances of promotion in the Education Service, and brought the instant action. The defendant successfully pleaded, inter alia, the defence of qualified privilege. This was because that defence depended whether or not the circumstances of publication were privileged.

The defence of Fair comment exists to protect expressions of opinion based upon facts which a plaintiff may deem to be defamatory. However, the defence would be defeated if the facts on which the comment is made are not true, or the comment itself is not fair. As Lord Esher M.R pointed out in the old English case of Merrivale v Carson (1887) 20 QBD 275 at 280,

“Mere exaggeration or even gross exaggeration would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit.”

Thus in the English case of Kemsley v Foot [1952] A.C. 345; [1952] 1 All ER 501 (HL), the defence of ‘fair comment’ was in issue when the defendant described a publication whose standard of journalism he thought was low, as “Lower than Kemsley”. The plaintiff, Kemsley, owned a group of newspapers and so the defendant’s statement was, in effect, criticizing the plaintiff’s newspapers as representing the lowest standards in journalism. The defendant contended that it was a mere expression of his opinion of those newspapers. The House of Lords determined that the defence should succeed, if honest and fair-minded people would not draw the same conclusions from the circumstances, as the defendant did.

It is clear from the principles elucidated above that the resort to the defence of Fair comment in the circumstances of this case was out of place and inappropriate.

Qualified Privilege

For the defence of qualified privilege to avail a defendant, it must first be established that the publication was either in the person’s own interest; in the interest of the one who received the information; in the common interest of the maker and receiver of the information; or in the public interest. In respect of what “public interest” means, the old English case of Toogood v Spyring (1834)1 CM &R 193 at p.194 Baron Parke stated this principle that a person would be liable for a defamatory publication

“unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral or in the conduct of his own affairs, in matters where his interest is concerned. … If fairly warranted by any reasonable occasion or exigency, and honestly made, such commu-nications are protected for the common con-venience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”

See also: Harry Street, Street on Torts (6th edition), Butterworths, London, 1976, p.314. See also: Benjamin Duffour v. Bank of Ghana & Another Civil Appeal No J4/48/2021 dated 9th February, 2022 (Unreported); Owusu Domena v. Amoah, supra, held that publication must be wide and not only be to the notice of the person alleging defamation.

The two defences of ‘fair comment’ and ‘qualified privilege’ may be defeated by proof of the existence of malice. ‘Malice’ according to the learned author of Street on Torts, supra, at p.318 means either of the following:

1. The Defendant did not believe in the truth of his statement or was “recklessly careless whether the statement be true or false”.

2. Wrong motive, ill will, personal spite – abuse of privilege

In Buachie v Samman (supra), the plaintiff in his evidence tried to show unsuccessfully that the defendant was actuated by malice, and so the defence of qualified privilege succeeded. It is thus the case that in determining whether the words used in the letter of dismissal were defamatory of the appellant not only must one establish that persons who received the communication were not entitled to receive it, but also that the defendant bank was actuated by malice. This the appellant failed to do.

Damage

In addition to all of these above it would also be important to state that at common law, Libel, is actionable per se, because damage is presumed. Therefore, there need be no proof of damage. However, the damage of which the court may take cognizance may be aggravated by certain circumstances, and a court may take that into consideration.

The employer, in the instant case established a case of suppression against the appellant. The Court of Appeal was right to hold that such evidence as was available proved the truth of the allegation. Under the circumstances, the defence of Justification would avail the employer. Again, the appellant may be a family man and a man of repute in his community, but that does not make the publication of a letter dismissing him which was served personally on him sufficient to constitute defamation. In addition, the fact that the circulation of it was to his senior officers by way of copy within the same establishment was administratively proper and did not exceed the privilege allowed by law. Therefore, it did not amount to defamation. Even if the allegations were not true as the appellant insisted, those to whom the letter was copied were not strangers to the incident. They were senior officers in the establishment and were entitled to receive such information. No malice in the circulation was proved to defeat the defence of qualified privilege, and therefore it could not be dislodged.

Conclusion

The appellant failed to show that the respondent violated his right to a hearing as required by the principles of natural justice. His complaint against his summary dismissal was also not made out as his misconduct as a supervisor had been established. The claim for libel was also misplaced as the respondent had not published any information about him that was false or that had no basis in fact, and the letter of dismissal had not been circulated to a circle of persons wider than the demands of the business allowed. Those to whom the letter of dismissal was copied were all within the hierarchy of the respondent bank, and entitled to receive the information about the status of a subordinate officer who had faced disciplinary proceedings.

The appeal has no merit and is hereby dismissed.

(SGD.) PROF. H.J.A.N MENSA-BONSU (MRS)

(JUSTICE OF THE SUPREME COURT)

(SGD.) P. BAFFOE-BONNIE

(CHIEF JUSTICE)

(SGD.) H. KWOFIE

(JUSTICE OF THE SUPREME COURT)

(SGD.) R. ADJEI-FRIMPONG

(JUSTICE OF THE SUPREME COURT)

(SGD.) K. T. ACKAAH-BOAFO

(JUSTICE OF THE SUPREME COURT)

COUNSEL

PS. DR. RICHARD OBENG MENSAH ESQ. FOR THE PLAINTIFF/APPELLANT/

APPELLANT WITH ADUTWUMWAA ADARKWAH YIADOM ESQ.

JOSHUA DIIKAN ESQ. FOR THE DEFENDANT/RESPONDENT/RESPONDENT

LED BY IBRAHIM ANYARS BAWA ESQ.