NARTEY VRS GHANA MUSEUMS (H1/87/2023) [2023] GHACA 189 (8 June 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA A. D. 2023 CORAM: JUSTICE HENRY KWOFIE (MR.) J. A (PRESIDING) JUSTICE SOPHIA ROSETTA BERNASKO ESSAH (MRS.) J. A. JUSTICE KWEKU ACKAAH-BOAFO (MR.) J. A CIVIL APPEAL NO.:H1/87/2023 DATE: 8TH JUNE, 2023 FREDERICK DJUKU NARTEY - PLAINTIFF/APPELLANT H/NO. P/183 ACCRA-NEWTOWN VRS GHANA MUSEUMS & MONUMENT BOARD- DEFENDANT/RESPONDENT BARNES ROAD, ADABRAKA, ACCRA CONCURRING OPINION __________________________________________________________________ Ackaah-Boafo, JA i. Overview: [1] I have had the privilege to read the opinion of my sister Sophia R. Bernasko-Essah (Mrs) JA. Even though I agree with her narration of facts, exposition of the law, reasoning and conclusions reached in this matter, I wish to add a brief contribution and comments. [2] As indicated above, the background facts to this appeal have been set out in detail by my sister in her lead opinion, consequently it is not necessary to rehash same in this opinion. A perusal of the Notice of Appeal clearly shows that the issue for our determination is in a narrow compass. The Appellant prays this court to set aside the ruling of the High Court dismissing his application for Mandamus on two main grounds set down in the notice of appeal. The grounds of appeal are that: (a) The High Court Judge did not adequately consider the application for mandamus filed by the Plaintiff/Appellant and that occasioned a grave miscarriage of justice. (b) That the ruling of the High Court labour division, Accra is against the weight of evidence. Even though the Appellant indicated in the notice of appeal that he will file further grounds of appeal upon receipt of the ruling, no additional/further ground(s) of appeal was filed. ii. The Grounds of Appeal & Submission: [3] From the nature of the grounds of appeal, it is clear that the Appellant is contending that the court below failed to consider the elements for an application for mandamus. To the Appellant, the trial judge was wrong with her analysis of the facts and application of the law. He contends that the conclusion reached by the court has caused him a miscarriage of justice. [4] Reading through the written submission filed by the Appellant’s Counsel it is clear that he argued both grounds of appeal together. Therefore, I have also decided to consider the two grounds of appeal together because the net effect of the grounds of appeal and as argued by Counsel is that the trial judge failed to consider the facts and the law presented and therefore the ruling is against the weight of evidence. [5] Decisional law on this ground of appeal are many. They include such cases as Republic v. Conduah; Ex parte Aaba (substituted by) Asmah [2013-2014] 2 SCGLR 1032, and Owusu Domena v. Amoah [2015-2016] SCGLR 790 by which the Supreme Court pointed out that: “Where the sole ground of appeal is that the judgment is against the weight of evidence, it throws up the case for a fresh consideration of all the facts and law by the appellate court. We are aware of this court’s decision in Tuakwa v. Bosom (2001-2002) SCGLR 61 on what the court is expected to do when the ground of appeal is that the judgment is against the weight of evidence. It has erroneously been cited as laying down the law that when an appeal is based on the ground that the judgment is against the weight of evidence then only matters of fact may be addressed upon. Sometimes a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters.” [6] The law is that having raised the omnibus ground of appeal, it is the duty of the Appellant to point out in a very clear and succinct manner to the appellate court, the pieces of evidence on record which were ignored or overlooked by the trial court and which, if applied correctly, would have caused judgment to be entered in his favour. This position was clarified by the Supreme Court when it stated in Olivia Anim v. William Dzandzi (Unreported) Suit Number Civil Appeal No. J4/10/2018 delivered on the 6th June 2019 that: “Where an appeal is based on the ground that the judgment is against the weight of evidence, the Appellant implies that there were certain pieces of evidence on record which if applied in his favour could have changed the decision in his favour or pieces of evidence were wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.” In effect, from the authorities, this Court, being an Appellate Court, is duty bound, by virtue of the main ground of appeal herein stated, to examine the record as a whole in order to establish whether or not the conclusion reached by the trial Judge is correct having regard to the evidence adduced by the parties. iii. The Decision of the Court below: [6] The mainstay of the argument of the learned counsel for the Appellant is that the court below neglected and omitted to consider the grounds for grant of mandamus. Also, Counsel submitted that the ruling was terse and without any reason because the learned trial judge simply recounted the submissions of both counsel and did no analysis. Now, is counsel’s submission justifiable? I note that the ruling is at pages 107 to 108 of the Record of Appeal (ROA). The judge recounted the submissions of Counsel and thereafter stated as follows: “This court has carefully considered the affidavits of both parties, their statements of case and all their annexures and has also considered the oral submissions of both counsel and it is of the opinion that the present application is unmeritorious and should not be granted. Since the trial in the substantive matter is already in progress, same will be continued to enable the Court determine the issues in controversy completely and effectively. The present application is thus dismissed. No cost awarded against the Plaintiff/Applicant”. [Emphasis Mine]. Based on the above, at page 4, paragraph 2.8 of the submissions filed, counsel submitted that “It is amply evident from the above, that the learned trial judge did no analysis or provide any reasoning to back her decision”. iv. Analysis and Evaluation: [7] Considering the above as the ruling, it is clear that indeed, the learned trial judge did not do any analysis of the evidence and therefore I agree with Appellant’s counsel’s submission. In my respectful opinion and with due deference to the trial judge, her decision does not reveal, even obliquely, how she applied the principles for mandamus and why she came to the conclusion that the application is unmeritorious. As noted by Counsel for the Appellant, the greater part of the one and a half page ruling contain a recounting of the facts based on the affidavit evidence presented by the parties. After recounting the affidavit depositions, the judge went directly to her conclusion, without setting out a bridge of analysis to link the affidavit evidence to her conclusion. In my view, it is not possible to discern from the conclusion how the judge applied the law as required in an application for mandamus. Indeed, without the benefit of the record which was before the judge, it is not possible for a reader to appreciate how the assessment was performed by the judge. It is also not possible to appreciate why the judge came to the conclusion that the application is unmeritorious because the judge stated what her conclusion is, but she did not state “the why” and “how” she came to that conclusion. [8] In my opinion, though the judge did not have to provide detailed reasons for her conclusion, she was required to demonstrate the process of connecting her factual findings to the conclusions reached to enable the parties to grasp how she came to her ultimate conclusion. In my thinking, to the extent that the ruling does not reveal the critical connection between the facts and the conclusion, there is an inherent ambiguity to the ruling delivered. While brief rulings are permitted, in my respectful opinion it is important that judges provide reasons in rulings delivered even if very brief and succinct for conclusions reached because the duty to give reasons is a salutary one and tell parties who are before the court and affected by the decision made as to why the decision was made. [9] Giving reasons are also fundamental means of developing the law uniformly, by providing guidance to future courts in accordance with the principle of stare decisis. The desirability of giving reasons was elucidated by the venerable and celebrated Lord Denning when he observed in “The Road to Justice (1955) 1, at page 29, that “by so doing, [the judge] gives proof that he has heard and considered the evidence and arguments that have been adduced before him on each side: and also, that he has not taken extraneous considerations into account”: 1 Publisher – London: Stevens [1959, 1955]. [10] The Court of Appeal of Ontario in Canada in the case of R. v. Morrissey 22 O. R. (3d) 514 also reported in [1995] O. J. No. 639, a decision which predates the Supreme Court of Canada’s decision in R v. Sheppard, 2002 SCC 26, referred to by my sister in the lead judgment, established the object for giving reasons by a trial judge. Doherty J. A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (Emphasis Mine). In effect, what is required is a logical connection between the “what” — the decision — and the “why” — the reasons/basis for the decision. In my respectful opinion, the premise or the underpinning of a judge’s decision must be discernible, when one considers the context of the evidence proffered and the submissions of counsel. With that in mind, in my view the learned judge’s decision failed to meet the required criteria. [11] The above opinion notwithstanding, I hereby wish to comment on the substance of the appeal. Based on the grounds of appeal stated supra, which is that the ruling is against the weight of evidence, the Appellant has opened the case up for rehearing in accordance with Rule 8 of the Court of Appeal Rules, 1997 (C. I. 19) and we are required to consider the entire evidence, both oral and documentary so as to ascertain for ourselves whether the refusal of the application is supportable having regard to the preponderance of probabilities of the whole evidence on record. [12] By Order 55 rule 1(a) the High Court Civil Procedure Rules, 2004 C. I. 47, an application for an order in the nature of Mandamus shall be made by way of an application for judicial review to the High Court. Mandamus, according to the Black’s Law Dictionary, 9th edition is “A writ issued by a court to compel performance of a particular act by a lower court or a government officer or body, to correct a prior action or failure to act.” Mandamus is further defined as an order from a court to an inferior government official ordering the government official to properly fulfil their official duties or correct an abuse of discretion2. [13] In the case of R v Chieftaincy Secretariat; Ex Parte Adansi Traditional Council [1968] GLR 736 which, I think, is the locus classicus on mandamus application, Annan J, (as he then was) gave an apt summary of the law and the grounds upon which a party may seek the redress of Mandamus. He stated: “…It must therefore be shown by the applicant who requests the court to compel the performance by mandamus of a duty that there is such a duty imposed by the statute upon which he relies, that the duty is of a public nature and that there is a right in the applicant to enforce the performance of the duty. These conditions precedent to the grant of the order will be strictly enforced where the respondents, as in this case, are either a Department of State or a Minister of State”. [Emphasis Mine]. [14] It means that before a court would make an order of mandamus to compel a public officer to perform a public duty imposed by statute or the Constitution on the said Officer, the aggrieved Applicant must satisfy four main conditions, namely: a) that there was a duty imposed by the statute upon which he relied; b) that the duty was of a public nature; c) that there had been a demand; and (d) refusal to perform that public duty enjoined by statute. 2 https://www.merriam-webster.com/dictionary/mandamus See also the Supreme Court case of Republic v. National House of Chiefs, Ex Parte Akrofa Krukoko II (Enimil VI Interested Party (NO. 2) [2010] SCGLR 134. It should however, be noted that the current position per decisional law is that the demand and refusal rule is only applicable to statutes and not the Constitution. See Larbie Mensah IV Alias Aryee Addoquaye v. National House of Chiefs and Another [2011] 2 SCGLR 883. [15] From the ROA, the Appellant’s prayer was anchored in the letter dated June 7, 2018 by the then Minister of Tourism, Arts and Culture (see page 5 of ROA) to the Chairman of the Board of the Respondent. Counsel for the Appellant stated at page 4 of his submission that: “The Respondent is the Ghana Museum and Monuments Board which is a department under the Ministry of Tourism and Arts and Culture. The Respondent is a statutory body established by the National Museum Act, 1967 NLCD 387” Section 13 of NLCD 387 provides that: Section 13 Establishment of Board (1) There shall continue to be the Museum and Monuments Board consisting of not more than ten members appointed by the President acting in consultation with the Council of State in accordance with article 70 of the Constitution. (2) The Board Shall continue as a body corporate with perpetual succession and a common seal and subject to this Act may require and hold movable and immovable property” Based on the above, Counsel submitted that “the Respondent being a statutory body relies on the subvention of government and is thus subject to the directions and control of the Minister in charge. In the case of Ghana Museums and Monuments Board, they are directly answerable to the Minister of Tourism, Arts and Culture”. [16] In the view of learned Counsel, the refusal of the Respondent to obey the direct orders of the Minister to reinstate the Appellant with immediate effect is “so glaring and it is indeed surprising why the learned judge failed to consider same. I do not think that the criticism levelled by Counsel against the learned Judge has any basis. Counsel seems to suggest that because the Honourable Minister wrote the June 7, 2018 letter (at page 5 of the ROA) the Respondent ought to have complied with the order. Respectfully, the argument is strange because, it is not supportable by the provision of the Act referred to by Counsel himself. The law is that the Appellant ought to have established that the Executive Director of the Respondent named in the application has a public legal duty to act, the duty must be owed to the Appellant and the duty is imposed by a statute. From the ROA, the letter was addressed to the Chairman of the Board, which has the legal duty to reinstate the Appellant and not the Executive Director. It is also instructive to note that the letter referred to the 2011 termination of the Appellant based on which the National Labour Commission directed that he be reinstated, which was complied with. Further, it is also clear that the letter did not refer to the April 15, 2013 letter of termination (at page 87 of the ROA), because that termination was by the board and same was based on the Agreement between the Respondent and its employees. (See Section IV of the agreement at page 53 of the ROA). [17] While it is true that the Executive Director of the Respondent occupies a public position created by statute and performs a public function, he had no statutory duty to comply with the orders of the Minister of Tourism, Arts and Culture contained in the letter of June 7, 2018 to reinstate the Appellant when the Board of the Respondent had complied with same previously. He also, has no statutory duty to override the Board of Directors exercising their duty as the Board to terminate the Appellant based on the Minister’s letter as erroneously submitted by Counsel because the Respondent relies on “government subvention”. In my respectful opinion, there is no violation of any statute by the Respondent to warrant the grant of the order of mandamus. The decision not to comply with the Minister’s letter of June 7, 2018 was right because same was not backed by any law or legal authority. Consequently, the court below cannot be faulted for refusing to grant the application. I am therefore of the opinion that, the criticism of the court by Appellant’s Counsel is misconceived. v. Conclusion: [18] Apart from the letter of June 7, 2018, the Appellant’s counsel did not refer to any part of the record which the Court below failed to consider, and which if considered would have resulted in a different outcome for the Appellant. To be blunt, the ruling was never against the weight of evidence at all because no justifiable legal argument was submitted to support the contention. Consequently, having considered all of the arguments, I take the view that the court below was right in refusing the application because the Appellant failed to meet the conditions for the grant of mandamus. It is for this and the other reasons contained in the lead judgment that I also agree that the appeal be dismissed as unmeritorious and the ruling of the court below dated March 5, 2019 be affirmed. …..…………………………………………… (JUSTICE OF THE COURT OF APPEAL) JUSTICE KWEKU T. ACKAAH-BOAFO