ADADE JSC
The defendant-appellant (hereinafter referred to simply as the defendant) was an employee of the State Construction Corporation, the plaintiffs (referred to hereafter as the corporation). He was engaged by the said corporation in June 1974 as a senior technical officer and by the date of his purported dismissal in August 1980, had risen to the post of principal training officer within the corporation. The position is inferior to that of a general manager or manager, but is nonetheless a senior post.
By a letter dated 4 August 1980 (exhibit A) written over the signature of the managing director, the board terminated the defendant’s appointment with effect from 11 August 1980. Paragraphs 4, 5 and 6 of the said letter read:
“4. You are to give the corporation, within three months, vacant possession of the bungalow allocated to you by reason of your employment.
5. By a copy of this letter the financial controller is requested to arrange for the payment to you of all your entitlements under article 56 (c) and (d) (i) of the said conditions of service, ie ... three months’ pay in lieu of notice in addition to service award of two weeks’ pay for each year of service for officers who have served the Corporation for between eight and ten years.
6. The financial controller is further requested to ensure that deductions are made against rent for the three months you are allowed to live in the SCC bungalow and to recover any debt you owe the corporation. If you vacate the bungalow before the period of three months expires, a refund of the unexpended part of the rent shall be made to you.”
The evidence shows that the said three months’ pay in lieu of notice, and other entitlements were worked out and a cheque, exhibit D, dated 14 August 1980 to the value of ¢1,370 issued to the defendant. The defendant refused to accept the money. He returned the cheque to the corporation. The defendant however kept possession of the bungalow beyond the three months’ deadline given in paragraph 4 of exhibit A. He refused to quit even though he paid no rent. Accordingly on 21 September 1981 the corporation instituted the present action for:
“(a) Recovery of possession [of the house occupied by the defendant]; and
(b) Mesne profits from 12 November 1980 to the time of judgment.”
The defendant countered that his purported dismissal was null and void and of no effect and that he was still an employee of the corporation. As for the mesne profits, “the accounts will be adjusted” when he is permitted to resume duty since rents were deductible at source from his salary. To press home his point the defendant counter-claimed for a declaration that the purported termination of his contract of employment is void ab initio, and for an order that he be reinstated “with full benefits.”
The learned judge found for the plaintiffs on both claims, ie recovery of possession and mesne profits. She dismissed the defendant’s claim for reinstatement, but made an ambiguous finding on the dismissal. In the body of the judgment she pronounced herself clearly as follows: “I would thus say [that] the purported dismissal of the defendant was void and wrongful.” (The emphasis is mine). At the conclusion, however, she gave judgment for the defendant “for relief (a), ie the dismissal was wrongful.” She did not then pronounce the dismissal as void. It is this ambivalence which has given rise to the present appeal by the defendant. The defendant says that as the judge had earlier found that the dismissal was void, the order for reinstatement should have followed automatically. The corporation on the other hand says that the last pronouncement expresses what the judge had always had in mind, viz: that the dismissal was merely wrongful and not void, and that in those circumstances the defendant is not entitled to be reinstated; at best, he only gets damages for the wrongful dismissal.
Curiously enough both the corporation and the defendant rely on the same authorities to support their rival contentions particularly Ghana Cocoa Marketing Board v. Agbettoh [1984-86] 1 GLR 122, CA and the cases there cited. The Agbettoh case is not much helpful to us. There the Cocoa Marketing Board dismissed the plaintiffs in purported implementation of a paragraph in a government white paper on the report of a commission of inquiry. It turned out that the board badly misread and therefore misunderstood the said paragraph, which in reality, conferred no authority on the board to take the action it did. The court accordingly pronounced the dismissals void. Even so, the plaintiffs were not reinstated. Instead, taking account of the “realities of the situation” (ie the plaintiffs had de facto, if not de jure, ceased to be with the board for about five years), the court awarded each plaintiff two years’ salary by way of compensation. It must be noted that in the Agbettoh case (supra), the board, apart from misinterpreting the government’s white paper, failed to give the plaintiffs “notice of their projected removal” (nor, it seems, appropriate salary in lieu of notice) in compliance with their contract of service, which fact additionally puts the Agbettoh case (supra) on a plane different from this one.
Let us remind ourselves that an appeal is by way of a rehearing. Having appealed on the dismissal, the defendant has reopened that issue in its entirety for a reconsideration by this court. The court is therefore entitled to come to its own conclusions not only on whether, as the appellant contended, on the finding of wrongful dismissal, the defendant ought to have been reinstated, but more importantly on whether that finding itself, ie that the dismissal was wrongful, is justified having regard to the evidence.
The defendant argued his case of wrongful dismissal on two legs: that it contravened the terms of his contract of employment (exhibit C) in which case he says it would be merely wrongful; and that it contravened some provisions of the Constitutions, 1969 and 1979, and was therefore null and void; in which case the dismissal should be deemed never to have taken place; he is still an employee of the corporation and the court should so decree.
It is proposed to deal with these two legs in turn. As has already been observed the defendant was until 11 August 1980 a senior officer of the State Construction Corporation. He was the principal training officer. He had not yet reached the managerial status. In his evidence he tried to bring himself within the “manager” class so as to take advantage of certain clauses in exhibit C. But his attempt clearly fails in the light of his own statements in exhibit H.
In exhibit H, a letter to the managing director dated 11 April 1979, he complains that: “when the substantive training manager resigned ... I requested to be appointed to act as training manager. I received a reply to the effect that if management found me capable of holding the office of training manager I would be appointed accordingly. The post has remained vacant whilst others have been created and filled with uncommon alacrity.”
He made the same point at page 4 of exhibit J, a petition dated 12 December 1979 to His Excellency Dr Hilla Limann, President of the Republic of Ghana. In his evidence under cross-examination, he concedes that he had “no written or verbal instruction to act” as a manager. We are satisfied that the defendant was on the eve of his dismissal not the training manager, nor was he acting as such. He was the principal training officer, a senior post, below the managerial status.
In exhibit C, the defendant, as a senior officer, could be dismissed from the employment of the corporation on being given three months’ notice, or else being paid three months’ salary in lieu of notice. On the evidence, the defendant was not given the notice, but he was given three months’ pay in lieu: see exhibit D. The defendant rejected the cheque and returned it to the corporation, not on the grounds that the amount was insufficient or wrongly calculated, but on his belief that he had not been dismissed. In these circumstances, the rejection is of no consequence. We find that as far as notice is concerned the corporation fully complied with the terms of the contract of service (exhibit C) by offering three months’ pay in lieu of notice. The learned judge, however adjudged the dismissal wrongful because, she said:
“under the conditions of service [exhibit C] the defendant ought to have been given a hearing before [being dismissed] The failure to do this when the board [of directors] found his conduct unsatisfactory in that he repeated a conduct for which they had reprimanded him before, constitutes a breach of one of the cardinal principles of natural justice. I would thus say that the purported dismissal €. was void and wrongful.”
It should be noted that a contract of service is not a contract of servitude. To say, as we are wont to do, that it gives rise to a master-servant relationship is to distort reality. The employee is not the servant; in the popular sense, of the employer. He is merely his employee. The contract is framed in such a way that either party may bring it to an end and free himself from the relationship painlessly. In this case, the defendant could at any time give the relevant three months’ notice (or forfeit an equivalent in salary) and leave the corporation, without justifying his action to the corporation. He need not give any reason for his action nor is the corporation entitled, if he should give one, to satisfy itself that the reason is true or false, sufficient or insufficient, justified or unjustified. In the same way it would seem to us that the corporation need not assign any reason for choosing to terminate their contract with the defendant. The contract merely requires that the corporation gives three months’ notice (or its equivalent in salary), and their conduct will be perfectly in order.
In this connection, however, and in the light of the defendant’s claim that he was not given a fair hearing, it is necessary to distinguish between two sets of provisions in exhibit C governing the severance of the employer-employee relationship by the corporation. These are: (a) termination of contract; and (b) summary dismissal. The end result of either action by the corporation is the same, ie that the employee ceases to be an employee. But there are different methods of bringing about the same result, and carry different incidents. We cannot share the view that in the context in which the terms are used in exhibit C they are synonymous and interchangeable terms.
Article 49 is headed “Disciplinary Action” and the two terms are used to denote different forms of punishments. Article 49 is part of chapter VII, titled- “Discipline.” Termination and summary dismissal are two out of six kinds of punishments which may be meted out to erring officers. The other four are:
(a) Warning or reprimand;
(b) Deferring increment;
(c) Suspension from duty without pay not exceeding two weeks; and
(d) Reduction in rank and pay.
But there is yet another form of termination which is not necessarily a punishment, but which also results in the severance of the employer-employee relationship. This comes under chapter X of exhibit C, headed: “Termination of Contract of Service.” Under this, either employer or employee may bring the contract of service to an end, upon fulfilling certain conditions. It cannot be said that when the employee terminates the contract he is taking a disciplinary action. If so, against whom? In the same vein the corporation can terminate the contract without necessarily taking a disciplinary action against the employee.
In the instant case, the corporation purported to act under chapter X [article 56 (c)], and not under chapter VII (article 49). Accordingly the only yardstick by which to guage the propriety of the corporation’s action is whether the provisions of article 56 were complied with. If they were not, the termination will contravene the said article, and will be wrongful; if they were, the termination will be proper and lawful, being in accordance with the contract. The corporation’s only obligation under article 56 (c) is to give the defendant three months’ notice, or three months’ pay in lieu. This reciprocates a similar obligation cast on the defendant by article 56 (a), in case he takes the initiative to bring the contract to an end. On the evidence the corporation discharged the obligation by giving the defendant three months’ pay in lieu of notice. In the event, the termination was perfectly in accordance with the terms of the contract of service and could not be wrongful.
In pronouncing the termination wrongful, the learned judge in the court below observed that the conditions of service (exhibit C) required that the defendant be given a hearing before being terminated. In this, with the greatest respect, the learned judge confused the “disciplinary” termination under chapter VII with termination of contract under chapter X, which need not be disciplinary. And the letter (exhibit A) expressly stated that the action was taken under article 56 (c), ie chapter X.
The corporation, of course, misled the defendant, and perhaps the court below too, by seeking to state in paragraph (2) of exhibit A, reasons for its action. It did not need to do this. The fact that it did, however, does not detract in any way from the general validity of their action, expressly stated in paragraph (1) to be taken under article 56 (c) of exhibit C. In the circumstances it seems to us that the very learned arguments in the court below and in this court advanced by counsel for the defendant, based as they are on article 49 of exhibit C would appear, respectfully, to be misdirected.
But what is a “hearing” in this context? 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 would have taken advantage of the opportunity offered and would have been heard. The board would then be entitled to take a decision on the basis of the answers, explanations, justifications or apologies given by the employee. The audi alteram partem rule would have been complied with. 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. This is exactly what happened in this case. On the basis of correspondence on file, exhibits G to L, it cannot be said that the defendant was denied a hearing, even if this was a prerequisite which, as stated earlier, it was not.
In exhibit H dated 11 April 1979, the defendant himself says that he was “arraigned before the corporation’s board of directors for allegedly conspiring with another person to discredit the corporation in a local newspaper”. It is difficult to imagine that the defendant would have left this meeting without putting his side of the case. In any case he does not allege this much. Then there is exhibit L dated 23 August 1979. The defendant here says that after “sober reflections” he realised that he might be wrong as regards “any or all of” certain matters contained in an earlier letter of his dated 13 June 1979. He was accordingly withdrawing the said letter and apologizing to the managing director.
Again, after the board had had the opportunity to deliberate on the issue and on the conduct of the defendant, its reaction was communicated to the defendant by the chairman, in writing. Following on that the defendant again wrote another letter of apology, exhibit K, to the Managing Director, dated 24 October 1979, expressing regret and sorrow “for all the embarrassment and inconvenience caused.” All this meant that the defendant was never denied the opportunity of putting his case.
The above notwithstanding, the defendant, in December 1979, returned to his former ways and addressed a ten-page letter, this time to the President of the Republic of Ghana, Dr Hilla Limann, with copies to the then Minister of Works, and to the member of Parliament for Tema constituency, repeating virtually the same charges and making the same allegations, casting the same insinuation which he had earlier seen fit, upon “sober reflections”, to withdraw and apologise for: see exhibit J dated 12 December 1979. It is interesting to observe that the board did not take a final position in the matter until about six months later, ie in July 1980 (item five exhibit B).
We find that there is sufficient material on the record to justify a dismissal of the defendant. His conduct and behaviour, as portrayed in the several letters written by him and exhibited in the proceedings, are enough to make any board dissatisfied with him and to wish to terminate his contract and dispense with him. In this connection it is pertinent to observe that the conduct of an employee, particularly a senior officer such as the defendant, is as important as, if not more so than, his performance as an officer. The board rightly took both into consideration in deciding to act under article 56 (c) of exhibit C.
The defendant, however, says that the termination was contrary to the Constitution, 1979. The particular article of the Constitution, 1979 relied upon by the defendant is article 155 which provides that:
“155. No member of the public services shall be.
(b) Dismissed or removed from office or reduce[d] in rank or otherwise punished without just cause.”
(The emphasis is mine).
Furthermore, the defendant says that by article 162 (1) of the same Constitution, he is entitled to stay on in the public service until he is 60 years. What is the bearing of these provisions on the instant case? Article 155 is framed to benefit only members of the public services. The term public services is defined in article 154 (1) to include:
“the Civil Service, the Judicial Service, the Audit Service, the Education Service, the Prisons Service, the Parliamentary Service, the Health Service, the Statistical Service, the Fire Service, the Customs and Preventive Service and public corporations, other than those set up as commercial ventures, which shall constitute the Public Corporations Service....”
(The emphasis is mine).
The phrase commercial venture is not defined anywhere in the Constitution, but we know from general principles that a venture or an undertaking which buys and sells with a view to profit is carrying on a commercial activity, and qualifies as a commercial venture. In this connection it does not matter what the venture buys and sells. Generally this will be movable and immovable items, like commodities and real estates. But it may very well be the buying and selling of services (e.g. insurance companies and travel agencies), or of labour-cum-materials or labour alone (e.g. building and construction organizations), or even the buying and selling of money (e.g. the banks). The State Construction Corporation, as its name goes, is a construction organisation set up by the Ghana National Construction Corporation (Amendment) Instrument, 1966 (LI 521) which amended the Ghana National Construction Corporation Instrument, 1965 (LI 396). Its objects set out in Part II of the instrument, include all forms and kinds of building and construction workshouses, road, railways, harbours, land reclamation - etc “both in Ghana and elsewhere”, and “charge fees” for any works so undertaken. The objects are enough to convince anyone that the SCC was set up as a profit oriented Organisation. The matter is put beyond doubt by section 6 of Part III of the said Instrument which requires that at the end of every financial year, the corporation, after it has made provision for bad debts, depreciation and other financial appropriations from its surplus revenue, should pay “any part of the profits ... remaining ... into the Consolidated Fund.” (The emphasis is mine).
In other words, the State Construction Corporation is a public commercial venture, set up entirely out of public funds (section 2, Part III) and expected to make profits for the State, which profits must be paid regularly into the State’s coffers via the Consolidated Fund. A reading of the Instrument shows that the State Construction Corporation is expected to operate in every respect as a sound commercial venture, with an authorised capital, board of directors, etc and to prepare annual accounts as though it were an ordinary company registered under the Companies Code, 1963 (Act 179) (see section 1, Part X of LI 521). It is therefore one of the corporations exempted from article 154 (1) of the Constitution, 1979. In this connection it does not matter that the corporation was set up before or after the Constitution. Article 154 (1) draws no such distinction between pre-and post-Constitution corporations. Indeed, that the constitutional provisions are intended to apply to pre-1979 corporations is amply demonstrated by section 20 of the transitional provisions which recognised pre-1979 corporations, and authorised them: “to continue [their] operations under the enactment[s] under which [they were] established.
So that if a corporation, no matter when established, was set up as a commercial venture, it comes within the exception created by article 154 (1); it will be outside the public services, and be part instead of the public corporation service. Accordingly its employees, no matter when engaged, whether before or after 1979, will not be members of the public services. This is as it should be - for how can it be reasonably and logically maintained that the corporation itself is not within the public services, but its employees, engaged and paid by the corporation, are within the public service?
In GCMB v. Agbettoh (supra) the impression was created that employees of “commercial venture” corporations appointed prior to the Constitution, 1979 enjoy the immunity provided by article 155, but that those appointed after the Constitution do not. We think this distinction is unfortunate.
In the result, we hold that the defendant in this case cannot take advantage, whatever it is, of article 155. He is not a member of the public service. This is not to say that the defendant was “punished without just cause.” It is only to emphasise the fact that article 155 of the Constitution does not apply to him, and complaints of unconstitutionality based on that article do not arise and are misconceived.
In view of the opinion we have formed of this case, it follows that the judgment in favour of the defendant for wrongful dismissal cannot stand; it is hereby set aside. We confirm the finding in favour of the plaintiffs for possession and for mesne profits. The defendant has more than overstayed in the corporation’s premises, and we order that the plaintiffs do recover possession immediately. The defendant is hereby ordered to vacate the premises and yield vacant possession to the plaintiffs forthwith.
With regard to mesne profits, the High Court ordered the plaintiffs to recover, and the defendant to pay, mesne profits from 12 November 1980 till the date of judgment, which was 28 July 1983, a period of 32 months seventeen days. The court however, did not quantify the said mesne profits, but left it to the Tema Development Corporation to assess the rent. We understand that because of the appeal filed by the defendant this exercise was never performed.
Whilst his appeal was pending, the defendant continued to live in the house, risking paying more rents should the appeal fail. The appeal has failed, and he must bear the consequences. Accordingly we extend the period for the payment of the mesne profits to cover, at least the date when arguments in the appeal terminated, ie 16 May 1985. The defendant will therefore pay mesne profits from 12 November 1980 till 16 May 1985, a period of 54 months (ignoring the “days” to facilitate computation). As indicated above, the Tema Development Corporation could not assess the rent payable. We are aware however that whilst he was in the plaintiff’s employment, the defendant paid rent at the rate of ¢56.40 per month (ie, ten per cent of his salary), deductible at source.
In the nature of this case, and in order to minimise the hardship on the defendant, we accept this figure for computing the quantum of the mesne profits, yielding ¢3,045.60 for the whole period (ie. ¢56.40 x 54).
It is hereby ordered that the plaintiffs recover from the defendant mesne profits for the period 12 November 1980 till 16 May 1985 amounting to ¢3,045.60.
If the defendant has still not collected his terminal award of ¢1,370.30 this should be set-off against the ¢3,045.60 and the balance of ¢1,675.30 recovered from him as a judgment debt. Should the defendant continue to hold out, the plaintiffs are to take steps to recover from him rent at an economic rate from the date of this judgment till the date he yields possession or is otherwise ejected. Subject as above the appeal is dismissed.
The plaintiff will have the costs of this appeal fixed at ¢3,000.