NARTEY VRS GHANA MUSEUMS & MONUMENT BOARD- (H1/87/2023) [2023] GHACA 181 (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 - PLAINTIFF/APPELLANT FREDERICK DJUKU NARTEY H/NO. P/183 ACCRA-NEWTOWN VRS GHANA MUSEUMS & MONUMENT BOARD- BARNES ROAD, ADABRAKA, ACCRA DEFENDANT/RESPONDENT J U D G M E N T __________________________________________________________________ SOPHIA R. BERNASKO ESSAH (MRS) JA: This is an appeal at the instance of the Plaintiff/Appellant, against the ruling of the High Court refusing to grant an Order of Mandamus against the Defendant /Respondent. The grounds are as follows: a. The High Court did not adequately consider the application for mandamus filed by the Plaintiff/Appellant and that occasioned a grave miscarriage of justice. b. The ruling is against the weight of evidence. Although the Appellant indicated that further grounds may be filed upon receipt of the rulings, this was not to be. In this delivery the Plaintiff/Appellant will be referred to as the Appellant whilst the Defendant/Respondent, the Respondent. The background to this appeal is that on account of various acts of misconduct found to be in contravention of Section V1 (a) of the Conditions of Service of the Respondent’s Organization, the appointment of Appellant, a Principal Accounting Assistant, was terminated on 31st March, 2011. Reference page 69 of the ROA. Upon his petition to the National Labour Commission (NLC), Respondent, was directed by NLC in a letter dated 7th April, 2012, to reinstate the Appellant with effect from 5th December, 2011, Reference Page 80 of ROA. Appellant was accordingly recalled to work per Respondent’s letter of 30th January, 2012. On 15th of April, 2013, the Appellant’s appointment was again terminated by the Respondent, on grounds of absenteeism and misconduct, Reference page 87 of ROA. Aggrieved by the termination, Appellant, filed a writ and statement of claim against the Respondent on 29th January, 2014, seeking certain reliefs. Reference page 104 of ROA. During the pendency of the suit, Appellant then petitioned the Minister of Tourism, Arts and Culture against his termination, whereupon the Minister on 7th June, 2018, wrote to the Board Chairman attention one Mr. Kwame Sowu, referencing the NLC letter of 7th August, 2012 and recommending the reinstatement of the Appellant. She also advised the board to act in accordance with the Conditions of Service of the Respondent. Reference page 5 of ROA. The trial was in progress when on the 21st of December, 2018, the Appellant herein filed a Motion on Notice for an order of Mandamus against the Executive director of the Respondent directing him to comply with the letter from the Minister of Tourism dated 7th June, 2018. The Respondent through the Attorney General’s office opposed the application. In its ruling which is the impugned ruling, the Court having recited the antecedents to the application for mandamus ruled that the application was unmeritorious and refused to grant it. It also stated that the substantive matter is already in progress and same will be continued to enable the Court determine the issues in controversy completely and effectively. Dissatisfied with this ruling the instant appeal has been mounted. Appellant’s counsel’s main contention is that the Court failed to consider any of the grounds for the grant or refusal of a mandamus application. That the Court failed to analyze or provide any reasoning to back her refusal of the application. That Appellant was within his right to apply for such a remedy since Respondent is a public body that is mandated by law to comply with orders and directions issued by the governmental body which is the Minister having oversight responsibility over the Respondent. He contended further that the Judge will have come to a different conclusion if she had firstly considered that the Respondent is a public body subject to the control and direction of the Minister in charge of the sector, the Ministry of Tourism, Arts and Culture; and secondly that by Section 10 of the Subvented Agencies Act, 2006, Act 706 sub section (c ) & (f), the Minister of Tourism had direct control over the Respondent, a subvented agency, and is empowered to give direction to staff of a subvented agency such as the Respondent. That 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 surprising that the Trial Judge failed to consider same. He contended that the omission of the Trial Judge meant she had not given full consideration to the mandamus application. He submitted further that sometime in July, 2018, Appellant received notice of the Minister’s dated 7th July, 2018. However, several oral demands on the Respondent to comply with the directive, went unheeded hence, the commencement of action before the High Court. Respondent’s wilful refusal to yield to demands of the Appellant to be reinstated in accordance with the Minister’s directive, left him with no other remedy to obtain justice than to seek an order from the Court for mandamus, he submitted. The Respondent failed to file written submissions. The Appellant argued grounds 1 and 2 together. Ground 2 being a ground dealing with the judgment against the weight of evidence, the legal position is that the case is open for fresh consideration of all the facts and related law submitted by the parties to the Appellate Court. We are, therefore, invited to re-examine certain pieces of evidence allegedly misapplied against the appellant or which if considered properly will change the decision of the lower courts in appellant’s favour. Tuakwa vs Bosom (2001-2002) SCGLR 61 refers. Counsel for the Appellant’s main complaint is that, the Trial Court delivered a “terse ruling” on the application for Mandamus and could not have taken into consideration matters which if considered would have changed the decision in his favour. We can agree that the judgment did not set out in detail, the basis for the refusal of the mandamus application. Though brief rulings are permissible and the Judge did not have to provide detailed reasons for her conclusion there is advantage in giving reasons since it benefits the general public and helps develop the law. The Supreme Court of Canada eloquently put it as follows in its seminal decision in R v. Sheppard, 2002 SCC 26 at paragraph 22; “There is a general sense in which a duty to give reasons may be said to be owed to the public rather than to the parties to a specific proceeding. Through reasoned decisions, members of the general public become aware of rules of conduct applicable to their future activities. An awareness of the reasons for a rule often helps define its scope for those trying to comply with it. The development of the common law proceeds largely by reasoned analogy from established precedents to new situations”. [Emphasis Mine]. That notwithstanding, we are in no doubt that the Court below was cognizant of the fact that it was a mandamus application which was before it. It acknowledged that it had “carefully considered the affidavits of both parties, their statements of case and all their annexures and had also considered the oral submissions of both counsel.” Reference Page 107 of ROA. Having done that it was of the opinion that the application for mandamus was unmeritorious. This does not suggest that the court did not consider any grounds for the grant of mandamus or was oblivious of them. The fact then that the Court did not set out what constitutes mandamus and grounds for grant or otherwise cannot be sufficient reason for the allegation that it neglected and omitted to consider any grounds for mandamus, and thus set aside its ruling on appeal. Even though in the exercise of our function as a rehearing Court, we will evaluate the application of the Appellant for mandamus before the Court below, we will say from the outset that the conclusion will not change. As rightly stated by Counsel for the Appellant, Blacks Law Dictionary, 9th Edition, defines Mandamus as “a writ issued by a Court to compel performance of a particular act by a lower court or a governmental officer or body, usually to correct a prior action or failure to act” In Brobbey JSC’s Chieftaincy in Ghana (2008) at page 634, the learned Judge sets out the purpose of mandamus as follows: “Mandamus is used to order action to be taken by a body authorized by statute to perform that action”. And in Republic vs Central Regional Minister; Ex Parte Action Congress Party (1981) GLR 527 the circumstances when mandamus is used were stated as follows: “Where any public authority or official was under an absolute and not a discretionary duty to perform a certain function, and he refused to do so, any person who had a demonstrable interest in its performance could compel the fulfillment of the duty by mandamus.” The order of mandamus lies against public officials in the performance of their public or quasi-public legal duty, to require them to carry out their duty. The order of mandamus commands any person to whom it is directed to carry out a public duty imposed by law. Also, an order of mandamus would lie to compel performance of the duty at the instance of a person aggrieved by the refusal to perform that duty unless another remedy was indicated by the statute. In the Republic v. Chieftaincy Secretariat, ex-parte Adansi Traditional Council (1968) GLR 736, the Court identified conditions that an Applicant for an order of mandamus must satisfy, as follows: 1. That there was a duty imposed by the statute upon which he relied; 2. That the duty was of a public nature; 3. That there had been a demand; 4. That there was refusal to perform that public duty enjoined by statute. So in this case, was there a duty imposed on the Respondent by statute to re-engage the applicant? Did respondent have a statutory duty of a public nature towards the Appellant to re-engage him? Appellant contends that since the Respondent is a statutory body and relies on government subvention then, Respondent is subject to the direction and control of the sector Minister in charge which is the Minister of Tourism, Arts and Culture, who is empowered by Section 10 of the Subvented Agencies Act 2006, Act 706 to give directions to the Respondent. The said section reads as follows: Responsibility of sector Minister for category II subvented agency. 10. The Minister responsible for the subvented agency shall discharge the following duties in respect of a wholly sub vented agency; (c) Ensure that the subvented agency institutes and implements technical, operational, managerial and professional training for staff members, (f) Any other duty that is incidental to the provision of this section. Counsel for Appellant emphasizes the portions highlighted and underlined to emphasize his point. Applying the Ejusdem generic rule which is that, where in a statute general words follow particular and specific words, the general words must be confined to things of the same kind as those specifically mentioned, we are of the view that the Section of Act 706 relied on by the appellant is absolutely irrelevant in defining the powers of the Minister in matters relating to disciplinary actions taken by a subvented organization in respect of its employees. The letter written by the Minister to the Respondent which the Appellant relies on as an order to the Respondent, for which this Court is being asked to issue a writ of mandamus is found on page 5 of the ROA. For its full force and effect I will reproduce the letter: 7th June 2018 The Board Chairman Ghana Museums and Monuments Board Accra. Attention: Mr. Kwame Sowu RE: INSTATEMENT –MR. NARTEY FREDRICK We refer to your petition dated 5th May 2018. The ministry has reviewed your petition for re- instatement to Ghana Museums and Monuments Board It was observed that his termination was without the approval of the Board of Directors. Subsequently the board directed his re-instatement with immediate effect from 5th December 2011 as per letter number GMMB/P.1810/431 dated 30th January, 2012. Furthermore, the national labour commission also directed that he should be reinstated per letter number NLC/C-355/011/012/6 dated 7th August, 2012. In view of the above evidence, I wish to recommend to the Ghana Museums and Monuments board to re-instatement him with immediate effect. The Board is advised to act in accordance with the Conditions of Service of the Ghana Museums and Monuments Board. I count on your cooperation. Hon. Catherine Abelema Afeku (MP) Minister This letter of the Minister of Tourism, cannot by any stretch of the wording be interpreted to amount to a statutory duty imposed on the Respondent. The letter to the Respondent by the Minister was appropriately worded in that the Minister was mindful of the relationship between the Appellant and the Respondent which is governed by the Conditions of Service of the Respondent and obviously accepted by the Appellant to be bound by. So she merely recommended that the Applicant be re-instated. And advised the Board to act in accordance with the Conditions of Service of the Respondent. We are resolute in our opinion that the letter to the Respondent cannot be constituted as a duty imposed by statute as contended by Counsel for the Applicant, merely by the fact that the Respondent is a department under the Ministry of Tourism, and the Respondent is a subvented institution. In effect, the recommendation of the Minister, or if even it was an instruction, which in our view was not, did not cast a duty of a public nature on the Respondent. In order to obtain an order of mandamus the Applicant must satisfy the court that he has a legal right to be enforced. Reference Republic vrs Chief lands officer; Ex Parte Allotey and others (1982-83) GLR 971. No such legal right has been demonstrated by the appellant in this application for Mandamus. In the case of Republic v. Gbi Traditional Council; Ex parte Abaka VII (1995-96) 1 GLR 702 it was held that “A recourse to mandamus when the Appellant's status had not been judicially settled or statutorily recognised was a clearly misconceived strategy and the High Court was therefore right in refusing the remedy of an order of mandamus which was a discretionary remedy given when an Applicant's entitlement was unquestionable and the only way in the circumstance of doing justice to him.” Further since an application for an order of mandamus seeks the court’s discretion the pendency of a substantive suit on the matter is a factor to consider. This is so because where there is an alternative remedy or avenue for redress, mandamus will not lie. The appellant is pursuing another remedy to vindicate his cause which is the suit he has filed in the High Court, for which the trial is in progress. He is clearly not entitled to the benefit of an order of mandamus. We note that on Page 5 of his written submissions, Counsel for Appellant contended that they commenced the action after the receipt of the letter from the Minister, and when upon oral demands that the Respondent comply with the directive of the Minister, they received no response. But that is a misrepresentation of the facts because the said letter was dated 7th June, 2018, but from the ROA, specifically, the affidavit in opposition to the Motion for mandamus at Page 104, the writ was filed on 29th January, 2014. The above apart, it bears saying that the letters relied on by the Minister, in her correspondence to Respondent, had already been acted upon by the Respondent. From the ROA, the appellant had been reinstated pursuant to the directive of the NLC. On page 82 of the ROA, Respondent wrote to the NLC under the hand of the Chairman of the Board, informing them per letter dated 30th January, 2012, that the Applicant had been recalled back to work, as of 5th December, 2011. The said letter was copied to the Appellant. A similar letter was written by the board dated same 30th January, 2012 to the solicitors of the appellant, informing them of the recall to work of the Applicant. Again the Applicant was copied. Additionally, there are letters written by the Respondent to the Controller and Accountant General informing them of the re-instatement of the applicant, and receipt of same was acknowledged by the Controller and Accountant General’s Office. Reference page 86. To the extent that the letter of the Minister to the Respondent referred to the earlier termination, it had been superseded by events. The appellant had been reinstated pursuant to those letters the minister referred to. The letter of the Minister was clearly incapable of being obeyed. After being reinstated though, the Appellant’s appointment was ones again terminated effective 15th April, 2013. This was pursuant to a hearing granted him in the presence of the Management, and the representative of the local TEWU. The hearing, per the letter, was to ascertain reports from the Appellant’s station, the Volta Regional Museum Ho, and management of GMMB, Accra on his absenteeism, disrespect of authority and misconduct since his recall to duty effective 5th December, 2011. The said letter stated that after granting him a hearing and examining his personal records resolved that his appointment with the Respondent should be terminated with immediate effect. Therefore in accordance with the Conditions of Service of the Board on absenteeism and misconduct his appointment had been terminated. There is no order for the reinstatement of the Appellant after his termination of appointment on 15th April, 2013. From the ROA on the 29th of January, 2014, the Appellant sued the Respondent for certain reliefs in Court. The trial is ongoing as stated by the Trial Court in its ruling refusing the application and same is confirmed by the Respondent in its affidavit in opposition at page 104, paragraph 15 of ROA. Mandamus being a discretionary remedy the Court ought to grant same cautiously, particularly seeing that it involves decisions of an administrative nature taken by the Respondent. Guided by all the principles that direct an Appeals Court in its deliberations when exercising its powers of rehearing, and having reviewed the ROA and read the submissions of the applicant, we are of the view that there is no merit in this appeal and dismiss same. The ruling of the Court below refusing to exercise its discretion in favour of granting the Applicant’s application is affirmed. Costs of GH¢10,000.00 awarded in favour of Respondent. SGD …………………………………………………… JUSTICE SOPHIA ROSETTA BERNASKO ESSAH (MRS) (JUSTICE OF THE COURT OF APPEAL) I AGREE SGD …………………………… JUSTICE HENRY KWOFIE (JUSTICE OF THE COURT OF APPEAL) ___________________________________________________________________ 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) (b) 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. 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”: [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 1 Publisher – London: Stevens [1959, 1955]. 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. 2 https://www.merriam-webster.com/dictionary/mandamus [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. 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. SGD …..…………………………………………… JUSTICE KWEKU T. ACKAAH-BOAFO (JUSTICE OF THE COURT OF APPEAL) COUNSEL: KOREWA AHWOI (ASA) FOR THE DEFENDANT/RESPONDENT GEORGE ANKOMAH MENSAH FOR THE PLAINTIFF/APPELLANT 21