BENJAMIN DUFFOUR v. BANK OF GHANA

BENJAMIN DUFFOUR v. BANK OF GHANA

Citation: Civil Appeal: No: H1/254/2018 Court: Court of Appeal Judges:

• KUSI-APPIAH, J.A. - PRESIDING
• KWOFIE, J.A.
• AGBEVOR, J.A.

Nature of case: Appeal against the High Court’s dismissal of a former bank employee’s claims for wrongful dismissal, unlawful sanctions and unlawful ejectment from official accommodation, and against the judgment in favour of the Bank on its counterclaim for trespass.

Facts of the case

The Plaintiff/Appellant was employed by the Defendant/Respondent Bank as a Deputy Manager. As part of his conditions of service, he was permitted to occupy a flat owned by the Bank at East Cantonments, Accra, under a contractual licence agreement. The agreement stated that the Bank provided accommodation to certain employees “where possible” and identified circumstances in which the licence would terminate automatically. It did not expressly list every circumstance in which the Bank could terminate the licence.

In 2011, the Bank decided to redevelop its Cantonments property into a specialist hospital for its staff, their dependants and the general public. It consequently directed the twelve staff members occupying the property to relocate to alternative accommodation at Adenta or Mataheko by 31 March 2012. All the other occupants complied, but the Plaintiff refused to move. He maintained that his licence agreement remained valid and that the Bank could not require him to vacate before the agreement expired or was properly terminated.

The Bank issued repeated notices and offered the Plaintiff alternative accommodation. It contended that his continued occupation delayed the hospital project and amounted to disobedience of lawful instructions. The Bank initially imposed sanctions, including forfeiture of his annual bonus, suspension of promotion for one year and loss of his 2014 salary increment. It subsequently ejected him from the flat in February 2014 and summarily dismissed him on grounds of gross misconduct.

The Plaintiff sued the Bank at the High Court, seeking declarations that the Bank had breached his licence agreement and conditions of service, that the sanctions and dismissal were unlawful, and that his ejectment was wrongful. He also sought reinstatement, damages and an injunction. The Bank counterclaimed for a declaration that the Plaintiff was a trespasser after revocation of the licence, mesne profits and damages for trespass.

The High Court dismissed the Plaintiff’s claims and entered judgment for the Bank on its counterclaim by declaring that the Plaintiff’s occupation after revocation of the licence amounted to trespass and awarding the Bank GH¢10,000 in general damages.

Dissatisfied, the Plaintiff appealed to the Court of Appeal.

Issues for determination

The Court of Appeal distilled the appeal into two broad issues:

1. Whether the findings of fact made by the High Court were supported by the evidence on record.
2. Whether the Plaintiff’s dismissal was effected lawfully and in accordance with the applicable law and conditions of service.

These broad issues required the Court to consider the following subsidiary questions:

• Whether the Bank was entitled to revoke the Plaintiff’s contractual licence and require him to vacate the accommodation.
• Whether the Plaintiff’s continued occupation after revocation amounted to trespass.
• Whether his refusal to obey the relocation instructions constituted misconduct justifying summary dismissal.
• Whether Article 191 of the 1992 Constitution protected him against dismissal without just cause.
• Whether dismissing him without a disciplinary hearing violated the audi alteram partem rule of natural justice.
• Whether the dismissal was unlawful because it allegedly breached an interlocutory injunction restraining the Bank from inviting him before a disciplinary committee.
• Whether the Bank breached Article 17 of its Senior Staff Rules and Conditions of Service by having the Human Resource Department handle his petition instead of the Governor.

Holding and decision of the Court

The Court of Appeal dismissed the appeal and affirmed the High Court’s decision. It held, in substance, as follows:

1. The licence was revocable. The Plaintiff had only a contractual licence to occupy the Bank’s property, not a proprietary interest in the land. The Bank could revoke the licence upon giving him reasonable time to vacate.

1. The relocation instruction was lawful and reasonable. The Bank needed the property for its proposed hospital project and had given the Plaintiff sufficient notice and offered alternative accommodation.

1. The continued occupation amounted to trespass. Once the licence had been revoked and a reasonable period to vacate had elapsed, the Plaintiff had no lawful basis to remain on the premises.

1. The dismissal was justified. The Plaintiff’s persistent refusal to obey legitimate and reasonable instructions constituted misconduct under Articles 10(1) and 13(b) of the Bank’s Senior Staff Rules and Conditions of Service.

1. Article 191 of the Constitution was not violated. The Court considered the dismissal to be supported by just cause because the Plaintiff had wilfully disobeyed lawful instructions.

1. There was no breach of natural justice in the circumstances. The Court held that the applicable conditions of service permitted dismissal without notice for the misconduct established in the case and concluded that the absence of a disciplinary hearing did not render the dismissal wrongful in the circumstances.

1. The contempt finding did not establish wrongful dismissal. The earlier contempt proceedings concerned disobedience of a court order, not the substantive merits of the dismissal. The contempt finding did not confer a proprietary right on the Plaintiff or establish that his dismissal was unlawful.

1. The petition to the Governor was not a formal appeal under Article 17. The Court characterised the document as a counter-offer concerning the terms of relocation rather than an appeal under the Senior Staff Rules. It therefore found no breach of Article 17 when the Human Resource Department handled the matter.

Reasoning of the Court

A. The nature and revocability of a contractual licence

The Court began by examining the legal nature of the Plaintiff’s occupation of the flat. It held that the licence agreement gave the Plaintiff permission to occupy the property but did not transfer ownership or any other proprietary interest in the land to him.

The Court relied on section 139 of the Land Title Registration Law, 1986 (PNDCL 152), and the decision in Quagraine v Adams [1981] GLR 599 (CA), particularly the principle that a licensee is entitled to a reasonable period to remove himself and his property after revocation of the licence. It also referred to Ahenkra v Yamark [1992] 1 GLR 486.

The Court interpreted the expression “where possible” in the licence agreement as qualifying the Bank’s obligation to provide accommodation. The Bank was not required to provide the particular flat indefinitely. Since the property was required for redevelopment and alternative accommodation had been offered, the Bank was entitled to revoke the licence.

The Plaintiff’s argument that the agreement had not expired was therefore insufficient. The agreement did not need to expire by effluxion of time before the Bank could revoke it in circumstances permitted by law.

The Court also reasoned that the Plaintiff’s continued refusal to leave after revocation amounted to asserting rights inconsistent with those of the licensor. His occupation therefore became trespassory once his permission to remain had lawfully ended.

B. Evaluation of evidence and findings of fact

The Court found that the High Court’s factual conclusions were supported by the evidence. The Plaintiff had admitted that the relocation exercise affected all the occupants and that he was the only occupant who remained in the premises after the deadline.

The Bank had repeatedly instructed him to vacate, provided notice well in advance and offered alternative accommodation. The Plaintiff’s principal justification was that his licence remained in force, but the Court rejected that argument because the licence was revocable and conferred no proprietary interest.

The Court held that the Plaintiff had not demonstrated any material error in the trial judge’s assessment of the evidence. It therefore declined to interfere with the factual findings.

C. Willful disobedience as a ground for summary dismissal

The Court examined the Senior Staff Rules and Conditions of Service governing the employment relationship.

Article 10(1) required an officer to observe, comply with and obey lawful orders and directions issued by persons under whose jurisdiction, superintendence or control the officer was placed. Article 13(b) authorised the Bank to dismiss an officer without notice, or with salary in lieu of notice, for specified misconduct, including “willful refusal to obey legitimate and reasonable instructions” and gross misconduct.

The Court considered the instruction from the Bank’s Human Resource Department to vacate the accommodation to be a lawful and reasonable instruction. The Plaintiff could not escape the obligation to comply merely because he did not work in the Human Resource Department. The relocation exercise fell within the Department’s administrative responsibilities, and the Plaintiff had acknowledged that it was dealing with all the affected occupants.

His repeated refusal to comply, despite the notices and alternative accommodation offered, therefore fell within the misconduct contemplated by Article 13(b).

The Court accordingly agreed with the High Court that the Bank had established a sufficient contractual basis for dismissal.

D. Article 191 of the 1992 Constitution and the requirement of just cause Article 191 of the Constitution protects members of the Public Services against victimisation, dismissal, removal from office, reduction in rank or other punishment without just cause.

The Court acknowledged that the Plaintiff’s employment relationship had a public-law dimension because of the constitutional protection afforded to public servants. It referred to Francis Owusu-Mensah and Another v National Board for Professional and Technician Examinations (NABTEX) and Others, Civil Appeal No. H1/104/2015, judgment dated 30 July 2015, in explaining that Article 191 seeks to prevent arbitrary treatment and unjustified disciplinary measures.

However, the Court distinguished constitutional protection against arbitrary dismissal from immunity against dismissal for established misconduct. It reasoned that Article 191 does not prevent an employer from dismissing a public servant where a sufficient and lawful reason exists.

The Plaintiff’s persistent refusal to obey a legitimate and reasonable instruction constituted the just cause required by Article 191. The Court therefore held that the dismissal did not contravene the Constitution.

The Court also referred to Bani v Maersk Ghana Ltd (2011) SCGLR 796 and Kobi v Ghana Manganese Co Ltd [2007–2008] SCGLR 771 in discussing the relationship between the common-law power to terminate employment and contractual or public-law restrictions on that power. It reiterated that where an employment contract prescribes procedures or safeguards, the employer must comply with them.

E. Natural justice and the audi alteram partem rule

The Plaintiff argued that his dismissal was wrongful because the Bank had not given him an opportunity to be heard before dismissing him. He relied on Article 19 of the 1992 Constitution and the audi alteram partem rule, which ordinarily requires a person affected by a decision to have an opportunity to present his case.

The Court rejected this argument in the particular circumstances of the case. It relied on Articles 10(1) and 13(b) of the Senior Staff Rules and Conditions of Service, which required obedience to lawful instructions and permitted dismissal without notice for specified misconduct.

The Court considered the Plaintiff’s repeated refusal to comply with the relocation instruction to be established misconduct within Article 13(b). It therefore concluded that dismissal without a disciplinary hearing did not, in the circumstances before it, render the dismissal wrongful.

Important qualification: This is the Court’s conclusion on the facts and contractual provisions before it. It should not be read as establishing that every employee may be dismissed without a hearing whenever an employer alleges misconduct. Whether a hearing is required may depend on the applicable statutory framework, constitutional protections, employment terms and the nature of the decision.

F. Effect of the earlier contempt proceedings and the injunction

The Plaintiff relied on earlier proceedings in The Republic v Bank of Ghana and Others, Ex parte Benjamin Duffour, arguing that the courts had already held his dismissal unlawful because it was connected with disobedience of an injunction.

The Court rejected that interpretation. It explained that the earlier proceedings concerned whether the Bank’s conduct in dismissing and ejecting the Plaintiff amounted to contempt of court. They did not determine whether the dismissal was substantively wrongful.

The Supreme Court had expressly refrained from deciding the merits of the dismissal and indicated that the Plaintiff could institute a separate action for wrongful dismissal if he was aggrieved.

The Court further applied the principle that a court order must be obeyed until it is set aside, even if it is considered erroneous. It cited The Republic v High Court, Accra; Ex parte Afoda [2001–2002] SCGLR 768.

Although the Court considered the injunction restraining the Bank from inviting the Plaintiff before a disciplinary committee to be an improper interference with the parties’ contractual rights, it emphasised that the Bank was not entitled simply to disregard the order. The Bank’s disobedience could justify contempt proceedings, but the resulting contempt finding did not establish that the Plaintiff had a proprietary right to the flat or that his dismissal was wrongful.

The Court thus distinguished contempt of court, which protects the authority and dignity of the court, from wrongful dismissal, which concerns the legal validity of the termination of employment.

G. Freedom of contract and sanctity of contract

The Court held that the injunction granted by the High Court was an improper exercise of discretion because it interfered with the contractual rights of the parties. In its view, the order effectively introduced a new term into the employment relationship by preventing the Bank from exercising its contractual disciplinary powers pending the determination of the suit.

The Court relied on the principles of freedom of contract and sanctity of contract, citing Mireku v Tetteh [2008–2009] 2 GLR 268 (CA) and City and Country Waste Ltd v Accra Metropolitan Assembly [2007–2008] 1 SCGLR 409. It also referred to Ballmoos v Mensah [1984–86] 1 GLR 724 (CA) in relation to the proper exercise of judicial discretion.

The Court reasoned that courts should not, by interlocutory orders, rewrite the parties’ employment agreement or remove rights that the contract validly conferred. However, contractual freedom remains subject to applicable constitutional and statutory requirements; it does not permit a party to disregard a binding court order.

H. Whether Article 17 of the Senior Staff Rules was breached The Plaintiff argued that his petition concerning relocation should have been submitted to the Governor under Article 17 of the Senior Staff Rules and Conditions of Service. Article 17 provided for an officer or group of officers to appeal in writing to the Governor, who would place the appeal before the Board with a recommendation.

The Court examined the substance of the document and concluded that it was not an appeal under Article 17. Instead, it was a counter-offer containing demands relating to relocation, reimbursement of accommodation subsidies and maintenance expenses, and assistance in securing alternative properties.

Since the document was a proposal for settlement rather than a formal appeal under Article 17, the Court held that the provision did not govern its handling. The Human Resource Department was therefore not precluded from dealing with the matter.

The Court considered the Plaintiff’s argument to focus on the form of the communication rather than the substance of the dispute, which had already been resolved by the finding that the Bank’s relocation instruction was lawful and reasonable.