ANGLOGOLD ASHANTI (GH) LTD VS JOB KINGSTON BOAKYE-MENSAH (H1/29/2021) [2022] GHACA 81 (24 February 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL KUMASI AD 2022 CORAM: A. M. DOMAKYAAREH (MRS) J. A. PRESIDING A. B. POKU-ACHEAMPONG, J. A. ERIC BAAH, J. A. SUIT NO.: H1/29/2021 DATE: 24TH FEBRUARY, 2022 ANGLOGOLD ASHANTI (GH) LTD : DEFENDANT /APPELLANT OBUASI - ASHANTI VRS JOB KINGSTON BOAKYE-MENSAH : PLAINTIFF / RESPONDENT H/NO: O. C. 265, OBUASI-ASHANTI J U D G M E N T POKU-ACHEAMPONG, J. A.: This is a Labour/employment matter involving a claim for wrongful dismissal. The appeal is against a judgment of the Obuasi High Court dated 11th December 2018. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 Background: On 27/2/15 the Plaintiff/Respondent, hereinafter referred to as the Respondent, issued a writ of summons and a statement of claim against the Defendant/Appellant Company, (hereinafter referred to as Appellant) for the following reliefs: a. A declaration that the Plaintiff’s dismissal was wrongful and unfair. b. Special and General Damages for wrongful dismissal including: (i) Salaries and other benefits associated with his post including actual increments, Social Security Contribution and Provident Fund Contribution with effect from the date of interdiction to the date of final judgment. (ii) End of service benefit as per the condition of service of the Defendant, Bank(sic) (iii) Compensation of two (2) years’ salary including Social Security Contribution and Provident Fund Contribution as the Plaintiff searches for an equivalent job. (iv) Accumulated leave commuted to cash. c. Cost as this Honourable court may deem fit. The Appellant in a defence filed on 17/4/2015 denied almost all the averments of the Respondent in his Statement of Claim. Respondent’s Case – The Respondent averred that prior to his dismissal by the Appellant he was a Winding Engine Driver, a regular employee with Badge Number ZC6634. He was engaged on 23rd August 1982 and had worked for a little over 30 years for the Appellant at the time of the incident on 21/12/12 that led to his wrongful dismissal. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 On 25/12/2012 Respondent avers that he was interdicted by the Appellant Company for investigations to be conducted into an alleged offence of conniving with illegal miners to steal gold products. As part of the investigations he appeared before a Security Investigation Committee and a Disciplinary Committee. The allegation against him was that a CCTV footage had disclosed his involvement in an alleged offence of conniving with illegal miners to steal quartz. He was found guilty despite his vehement denials and dismissed, on 25/3/13 for connivance with illegal miners to steal gold and misuse of company property. The Respondent petitioned the then Ghana MinesWorkers Union (GMWU) to intervene on his behalf. The said petition was forwarded to the Appellant for consideration but was declined by the Appellant. Appellant’s Case:- The Appellant’s case was that the dismissal of the Respondent was not wrongful and that the disciplinary procedures outlined in the Collective Bargaining Agreement (CBA) that regulate the employment of the Respondent was followed completely. They tendered the relevant CBA as Exhibit AGA 1. The Appellant gave evidence through its representative Percy Baidoo an Industrial Relations Officer. He stated that it came to the attention of the Management of Appellant Company that some bags of quartz belonging to the Appellant had been stolen by some galamseyers (illegal miners) on 21/12/21 and that this was done in connivance with some workers of the Appellant Company. The Appellant put in place its disciplinary procedures to investigate the matter. The Respondent among others, was called upon to respond to the charge of conniving with SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 illegal miners to steal gold. The statement of the Respondent was tendered and marked as Exhibit AGA 2. The Security Department after its investigations recommended the interdiction of Appellant and other workers for further investigations to be conducted. The Security Department’s report was presented to the court and marked as Exhibit AGA 3. The matter was further handled by the Disciplinary Committee (DC) of the Appellant Company which committee’ report was tendered and marked as Exhibit AGA 4 The Appellant stated that on the findings of the D. C against the Respondent and the DC’s recommendation that the Respondent be dismissed the Respondent was dismissed and was paid all the entitlements due him under the CBA. Exhibit AGA 7 is proof of due payment of Respondent’s entitlements. Judgment of the High Court: The Learned Trial Judge decided in his judgment that “the Plaintiff’s claim for declaration that his dismissal was wrongful and unfair is upheld”. The Trial Judge stated that even though the Appellant followed due process in dismissing the Respondent, the charge of stealing against him was not proved beyond reasonable doubt, hence the dismissal was wrongful and unfair. The Trial Judge made the following awards in favour of the Respondent: 1. He is to be paid his salaries including actual increment from the date of dismissal which is 25th March 2013 to date of judgment 11th December, 2018. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 2. The Plaintiff’s Social Security as well as his Provident Fund contribution is to be paid from the date of dismissal to the date of judgment. 3. End of Service benefits as contained in the CBA including repatriation allowance and golden handshake etc, long service award for 30 years which is determined by management. 4. Accumulated leave commuted to cash and other bonus due him were he to be at post. 5. Damages of twelve months salary at the current wage of an employee of the Plaintiff’s status before dismissal as compensation for wrongful dismissal. Grounds of Appeal Aggrieved and dissatisfied with the judgment of the Court below the Appellant Company on 8/3/19 filed a Notice of Appeal with the following as the grounds of appeal. 1. The judgment is against the weight of the evidence. 2. The Learned judge erred in law in his allocation of the burden of proof in the determination of the matter. Particulars of Error a. Finding that the burden of proof of the Respondent’s claim was on the Appellant. b. Finding that the Appellant had the burden to prove that the dismissal was in accordance with the terms of the Respondent’s employment. 3. The Learned Judge erred in finding that the Respondent’s dismissal was wrongful and unfair after making a finding that the Appellant followed due process in the Respondent’s dismissal. Particulars of Error SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 a. Upholding the assertion that Respondent’s dismissal was wrongful and unfair even though due process was followed, b. Overruling the findings of the duly constituted disciplinary committee as not in consonance with the Law. c. Applying the wrong standard of proof in assessing the conclusions and recommendations of the disciplinary committee against the Respondent. 4. The Learned Judge erred in Law in granting the Respondent’s reliefs 1, 2, 3, and 4. Particulars of Error Granting Respondent what amounted to special damages without any particulars. Granting the reliefs from the date of dismissal until the date of final judgment contrary to the Law. The relief the Appellant is seeking from this Honourable Court is a reversal of the decision of 11th December 2018 and the consequential orders made thereon by the Learned Trial Judge. The Evidential Burden We will like to deal first with the issue of the evidential burden in this appeal. It is trite learning that the Evidence Act, 1975 (NRCD 323) places the burden on a party that is asserting a claim to prove it by a preponderance of probabilities. Section 10 of the Evidence Act provides as follows: (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 (2) The burden of persuasion may require a party. a. To raise a reasonable doubt concerning the existence or non-existence of a fact or b. To establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 of the Evidence Act 1975, (NRCD 323) provides as follows: (1) For the purposes of this Act the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence. Section 12 also provides as follows: (1) “Except as otherwise provided by Law the burden of persuasion requires proof by a preponderance of the probabilities”. (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. In the Supreme Court case of Re Ashalley Botwe Lands: Adjetey Agbosu & Ors Vrs Kotey & Ors [2003-2004] SCGLR 420 Brobbey JSC at page 425 holding 5 explained the above- mentioned sections of the Evidence Decree as follows: “the effect of sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a Defendant in a civil case does not SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 need to prove anything. The Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time, if the court has to make a determination of a fact or of an issue and that determination depends on evaluation of facts and evidence, the Defendant must realise that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour”. Burden of Proof in a Wrongful Dismissal case: In the case of wrongful dismissal or termination the following authorities state the position of the law on the subject of the Burden of proof: In Alex Onumah Coleman & 8 others Vrs Newmont Ghana Gold (Consolidated) Civil Appeal No J4/67/2019 the Supreme Court delivering itself through Honyenuga JSC stated as follows: “The Law is that this action being an action for damages for wrongful dismissal each Appellant assumed the burden of proving the terms of his employment that their determination was in breach of the terms of the agreement or in contravention of statutory provisions for the time being regulating employment”. Also in the case of Sarfo Vrs A Lang Ltd (1978) 1 GLR 143 the Court stated as follows on the subject: “In a claim for wrongful dismissal it is essential that the Plaintiff should prove the terms of his employment and prove either that the determination of the employment is in breach of the terms of his agreement, or that the determination is SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 in contravention of the statutory provisions for the time being regulating employment. His claim cannot succeed if he fails to satisfy the court on these points.” Again in the case of Kobi Vrs Ghana Manganese Co. Ltd (2007-2008) 2 SCGLR 771 the apex Court held: “This being an action for damages for wrongful dismissal each Plaintiff assumed the burden of proving the terms of his employment that the determination was in breach of the terms of the agreement or in contravention of the statutory provision for the time being regulating employment”. In Opare Yeboah Vrs Barclays Bank Ltd (2011) ISCGLR 330 at 332 the Supreme Court posited as follows: “that the Supreme Court would affirm the time honoured proposition that the procedures outlined in contracts of employment such as the CBA in the instant case must be followed to give a summary dismissal validity”. All these cases are referred to by Appellant’s Counsel in his written submission. On this point of whom the burden of proof falls Counsel for Respondent also cited the case of Faustina Asantewaa & 7 Ors Vrs The Registered Trustees of the Catholic Church, Koforidua Diocese Suit No H1/03/2014 dated 11th March 2015 CA in which Dennis Adjei JA stated as follows: “Plaintiff must establish in the preponderance of probabilities that his dismissal was in breach of either Natural Justice or Collective Bargaining Agreement or a SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 Statute after which the Defendant must justify the ground One (1) of the dismissal beyond reasonable doubt and ground Two (2) on preponderance of probabilities.” The recent judgment of the Supreme Court in Tagoe Vrs Accra Brewery Limited (2017- 2020) 1 SCGLR 820 delivered by Benin JSC, as he then was also indicates that it is a shared burden. The apex court stated that after the Plaintiff has undertaken the task of proving that his appointment has been terminated contrary to the terms of his employment agreement the burden shifts on the Respondent to prove otherwise. Having outlined the position of the Law on the burden of proof and how it is to be discharged we will now go on to the grounds of appeal. Ground 1 The judgment is against the weight of evidence. There is a plethora of cases on the subject of the omnibus ground of appeal. In Republic Vrs Conduah; Ex parte Aaba (Substituted by Asmah) [2013-2014] 2 SCGLR 1032 Supreme Court speaking through Akamba JSC stated at page 1041 as follows: “This ground alleges that the judgment was against the weight of evidence. Such omnibus ground invites this court to take another look at the facts on record to ascertain whether the conclusions arrived at by the Court of Appeal are borne out or not; and to arrive at its own conclusion. In Akufo-Addo vrs Catheline [1992] 1 GLR 377, SC this court observed that whenever an appeal is based on the omnibus ground that the judgment is against the weight of the evidence, the appellate court has jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts. Thus, when an Appellant complains SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 that the judgment is against the weight of evidence, he is implying that there are pieces of evidence on record which, if applied properly or correctly, could have changed the decision in his favour or certain pieces of evidence have been wrongly applied against him.” In Owusu Domena Vrs Amoah [2015-2016] SCGLR 790 the Supreme Court stated 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 vrs 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.” See also the cases of Nortey (NO2) Vrs African Institute of Journalism and Communication & Ors [2013-2014] 1 SCGLR 703 @ 711 & Oppong Vrs Anarfi [2011] 1 SCGLR 556 Holding 4. The duty cast on the Appellant is also described in the case of Djin vrs Musah Baako [2007-2008) 1 SCGLR 686 where the apex court held as follows: SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 “Where (as in the instant case) an Appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on record which, if applied in his favour could have changed the decision in his favour or certain pieces of evidence have been 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 arguing this ground Counsel for the Appellant contended that in an action for damages for wrongful dismissal the onus lies on the Appellant to prove the terms of his employment and prove that the dismissal was contrary to his terms of employment or in contravention of the employment laws. He argued that in the entire case, from the time the writ was issued to the date of judgment the Respondent failed to plead or lead evidence on any employment laws that the Appellant has violated. Respondent also failed to prove that Appellant had breached his contract of employment that is the Collective Bargaining Agreement (CBA) which was tendered and marked as Exhibit AGA 1. According to Counsel for the Appellant there was no breach of any of the disciplinary procedures contained in the CBA and that the Appellant Company acted in accordance with the recommendations of Disciplinary Committee. He added further that this position is accepted by both the Respondent and the trial Judge. With particular reference to the Learned Trial Judge Counsel contends that the Judge stated twice at page 17 of his judgment (page 391 of the Record of Appeal, ROA) as follows: SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 “From the totality of the evidence on record, there is every justification to conclude that the Defendant followed every procedure set out in the CBA in dealing with the Plaintiff. His interest was protected and well represented.” Further at page 18 of the judgment the Judge said this: “In conclusion, I say that the Defendant Company followed the procedures which were in accordance with the terms and conditions of the Plaintiff’s employment.” Counsel further argued that the Appellant Company’s strict compliance with the CBA gave validity to Respondent’s dismissal. He concluded that in the absence of any beach of the CBA and existing employment laws the Respondent did not deserve the judgment that was given him on the basis of the authorities in Kobi Vrs Ghana Manganese Co Ltd [2007-2008] 2SCGLR 771 and Sarfo Vrs A Lang Ltd [1998] GLR 142 – 143. Counsel then refers to the following statement of the Trial Judge in the Judgment. “Once the Plaintiff was accused of an offence criminal in nature then the law enjoined the Defendant Company to have proved the involvement of the Plaintiff beyond reasonable doubt. This principle of the law is what the Defendant failed to follow.” Counsel states his disagreement with the above statement because of the Judge’s own positive finding that the Appellant Company complied with the CBA to the letter in its dismissal of the Respondent. He argued that the Respondent was well represented during the proceedings and the Disciplinary Committee’s report was not challenged in any way by the Respondent. Counsel further argued that the Learned Judge in another case involving another SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 employee who was dismissed together with the Respondent in the matter had stated at page 13 of his Judgment as follows: “Once the Defendant followed due process the dismissal cannot be termed as wrongful or unfair. On this issue my conclusion is that same should be resolved in favour of the defendant that the plaintiff was dismissed in accordance with the terms and conditions of his employment”. Counsel expressed his disagreement with the finding of the trial Judge that the Disciplinary Committee failed to prove the case beyond reasonable doubt. Reviewing the evidence Counsel stated that the Record of Appeal shows that following a report received by management of the Appellant that ten bags of quartz belonging to the company had been stolen by illegal miners on 21/12/12 through one of their mine shaft the Adansi mine shaft, with the connivance of the night shift staff of the Company the Appellant started its disciplinary investigation process in line with the CBA. The investigations showed that the illegal miners could only get access to the point with the help of the cage and the Winder drivers at that shaft which included the Respondent. According to Counsel the fact that the Winder drivers took the cage to the skipping point on those days and the fact that the Respondent in particular took the cage there on 12/12/12 was highly questionable. Respondent’s explanation that the presence of the cage at the skipping point on the 12/12/12 was a mistake was not convincing and could not raise the reasonable doubt required. Touching on the issue of the misuse of company property together with other employees Counsel argued that the Trial Judge erred when he held at page 19 of his judgment that SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 “an investigation into a matter where the Plaintiff was charged with three other offences could not lead to their dismissal on the grounds of misuse of company property”. Counsel argues that the decision to dismiss the Respondent on the charge of misuse of company property was made after the Disciplinary Committee hearings. Thus it cannot be said that the Respondent was not given a hearing or an opportunity to defend himself on that charge. Counsel cited the case of Aboagye Vrs Ghana Commercial Bank Ltd [2001-2002] SCGLR 797 where Adzoe JSC stated that “A servant whose conduct is incompatible with the faithful discharge of his duty to his master may be dismissed … Dismissal is also justified in the case of a servant … if his conduct has been such that it would be injurious to the master’s business to retain him”. Counsel then deals with the issue of whether a disciplinary committee handling the case of an employee charged with a criminal offence should prove the charge beyond reasonable doubt or on a balance of probabilities. Counsel referred to a decision of this court on the matter in another wrongful dismissal appeal in which the court clearly stated that: “Thus when a statute law of Ghana viz section 13 of the Evidence Act says that in a civil action an allegation of criminal offence must be proved beyond reasonable doubt, the CBA cannot override that by saying the guilt of an employee when charged with a conduct which amounts to a criminal offence will be determined on the balance of probabilities.” (See Charles Kwadwo Gyasi Vrs Mining Building Contractors Ltd suit No H1/79/2018 dated 29/10/2020.) This court’s position on this issue remains the same and we must state SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 categorically that Counsel’s valiant attempts to persuade us to have a different standard for Disciplinary Committees when handling such criminal charges in a civil mater are unconvincing. The Counsel for the Respondent in his written submissions strongly defended the judgment of the Learned Trial. Counsel argued that the Respondent discharged the burden of producing evidence to satisfy the court that his dismissal was contrary to Section 13 of the Evidence Act 1975 NRCD 323. After doing so the burden of proof shifted on to the Appellant to produce evidence that the Respondent had connived with illegal miners to steal 10 bags of quartz. Counsel cited the case of Fenuku vrs John Teye (2001-2022) SCGLR page 985 Holding 5 in support of his as follows: “The Law regarding proof of forgery or any allegation of a criminal act in civil trial was governed by section 13(1) of the Evidence Decree 1975 (NRCD 323) which provided that the burden of persuasion required proof beyond reasonable doubt”. See also the cases of Aryeh Akakpo vrs Yaa Iddirisu (2010) SCGLR 891 and Tagoe vrs Accra Brewery Ltd [2017-2020] 1SCGLR 820 cited supra. Counsel contended further that nowhere in the Appellant’s evidence was it able to prove that the Respondent connived with illegal miners. At the Security Department’s Investigations and the Disciplinary Committee proceedings, the Appellant was unable to prove that the Respondent connived with illegal miners to steal gold products. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 Counsel contended that the following excerpts from cross – examination of the Appellant representative, Mr. Percy Baidoo at the Trial Court debunk any allegation of the Respondent’s connivance with illegal miners to steal gold products. The excerpts are captured at pages 337 to 338 of the Records of Appeal as follows:- “Q: On 12th December, 2012 the CCTV Camera did not capture any galamsey booty in the case? A: The footage revealed that something was picked out of the cage and there were unusual movement as well. Q: That thing which was picked was picked by a cage boy who has a name? A: The report did not indicate the name. Q: The item that was picked was not defined by the report? A: That is correct. Q: Look at paragraph 2 of Exhibit “D” the first ground of Plaintiff’s dismissal is that he connived with illegal miners to steal gold products? A: That is correct Q: The CCTV footage and the investigation by the Security did not establish that he connived with illegal miners? A: He did. Q: The CCTV camera did not capture the Plaintiff with illegal miners both in the cage and around the Adansi shaft? A: That is so because the Winder engine house is different and away from the shaft. Q: The Security guards detailed at the shaft did not testify that they saw the Plaintiff with illegal miners? A: That is correct. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 Q: The Plaintiff did not admit in his statement and at the hearing that he connived with illegal miners? A: That is correct. Counsel contends that in his witness statement Percy Baidoo the Appellant’s representative at paragraph 4 stated as follows (see page 107 of the ROA). “It came to the attention of management that on the night of Friday, December 21, 2012, some bags of quartz were surfaced through the cage and taken away by galamseyers. This act was done with the aid of some of the workers of the defendant’s company who were on the night shift.” Counsel for Respondent argues, that if any connivance to steal gold product occurred in the mine and in that cage specifically, then it took place on 21st December, 2012, however the Respondent was dismissed based on the events of 12th December, 2012. The Exhibit ‘D’ which appears at page 90 of the ROA, states connivance with illegal miners to steal gold products on 12th December, 2012. The trial Judge according to Counsel for Respondent therefore concluded rightly in his judgment at page 12 (see page 386 for the Record of Appeal) as follows: “In conclusion all that can be deduced from the totality of the evidence on this issue is that the plaintiff did not commit any criminal offence and the defendant could not on the face of the evidence available on record justify or prove the charge against the plaintiff that he connived with illegal miners to steal gold products.” Touching on the second charge of misuse of the company property on 12th December, 2012, Counsel contends that the interdiction letter Exhibit ‘B’ issued to the Respondent shows that he was being investigated for an alleged offence of conniving with illegal miners to steal gold product contrary to Section 1 of the Disciplinary Code. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 The CBA (Exhibit ‘AGA 1’) at Article 8.01 b provides that “Discipline is the company’s responsibility and will be applied fairly. Every employee is entitled to know the reason for any action against him.” Article 8.02 (a) also provides that: “Where an employee commits an offence, he shall be disciplined in accordance with the schedule of offences. The offence shall be stated in writing.” The Appellant should therefore have informed the Respondent in writing prior to the investigation when the company decided to charge Respondent with the offence of misuse of company property. Counsel for the Respondent points out that under schedule 3 of the CBA with the subheading WARNING OFFENCES item 12, misuse of company property, attracts a warning (see page 158 of the ROA). However, under schedule 1 of the same CBA with the subheading DISMISSABLE OFFENCES item 26, classifies misuse of company property as a dismissable offence. (See page 157 of the ROA). Counsel argued that the rules of natural justice required that the Appellant should have informed the Respondent of the exact charge against him and cited the cases of Kofi Aboagye vs. Ghana Commercial Bank Limited [2001-2002] and Abbot vs. Suleman [1952] 1 KB in support of his contention. Counsel contended that Respondent was neither charged nor investigated for misuse of the Appellant Company’s property and it was wrong to dismiss him for that offence. Counsel argued further that the property misused and the extent of the misuse or damage caused to it was not disclosed by the Appellant. The evidence available does not according to Counsel establish a misuse of the cage. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 The evidence he contends shows that the Respondent was the Winder Engine Driver only on 12th December, 2012 and that in the course of his work on that day the cage moved beyond normal level on only one occasion. If the cage moved only once beyond the required level, then the explanation by the Respondent under cross-examination that it was a mistake was a reasonable one and misuse cannot be reasonably considered to have occurred. Thus Counsel contends that the trial Judge’s decision on the matter cannot be faulted and that the Judge was right when he held at pages 18 – 19 of his judgment that: “Where this court has made a finding that the charge of connivance to steal gold product could not hold then the plaintiff cannot be said to have misused the company’s property.” At the disciplinary hearing, the defendant could not lead any evidence against the plaintiff and was not asked any question by way of evidence-in-chief or on cross-examination. The other suspected accused persons all had their turns to testify and asked questions. What showed in the records are the investigation statements given by the plaintiff in which statement he denied any wrong doing. The accusations against the plaintiff were therefore not proved and therefore should not have been dismissed.” Counsel for Respondent concluded by urging this court to affirm the judgment of the trial court and dismiss the omnibus ground of appeal. Analysis of Evidence We have carefully analyzed the evidence in the ROA as we are required to do as an appellate court in compliance with rule 8 (1) of C. I. 19 which states that an appeal is by way of rehearing. We are of the considered view that the evidence adduced by the Appellant Company in this case does not meet the threshold to prove the criminal charge of stealing in a civil case SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 beyond reasonable doubt as they are required to do under Section 13 (1) of the Evidence Act NRCD 323. The said section provides that: “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” In the instant case the charge is that of conniving with illegal miners to steal quartz. The evidence adduced has not proved this charge against the Respondent beyond reasonable doubt. The Appellant’s case as outlined in the Security Investigation and Disciplinary Committee reports is based so much on suspicion and it is trite law that a multitude of suspicions does not ground a charge. It is understandable and quite in order that an industry engaged in the business of gold mining should be overly concerned with issues of safety and security and the protection of the precious mineral but that laudable and legitimate objective should be achieved within the confines of the law. As indicated supra, the provision in the CBA that a criminal offence against an employee should be proved on the balance of probabilities is clearly offensive to the statute i.e. Section 13 of the Evidence Act as quoted above. This court clearly stated its position on this in the case of Charles Kwadwo Gyasi vs. Mining Building Contractors Ltd. Obuasi, Ashanti Civil Appeal No. H1/79/2018 dated 24th October, 2020. Appellant company claims in its Security Investigations and Disciplinary Committee reports that its evidence is not direct but circumstantial. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 In the Security Department report found at page 166 of the ROA, it states as follows under the sub-heading Findings in Item 7 (1) that “Information received indicated that on the night of Friday 21st December, 2012, ten head loads of galamsey booty (quartz) were surfaced from underground through the cage system and taken away through Wawasi by a group of galamseyers. Even though security investigations could neither lead to the retrieval of the quartz nor the arrest of the illegal miners, circumstantial evidences gathered during investigation confirm the information.” Counsel for Appellant refers us to the case of Gligah & Atiso vrs the Republic (2010) SCGLR 870 on circumstantial evidence as “pieces of evidence which if put together made a very strong case against the accused person”. “… It was generally accepted that when direct evidence was unavailable but there were bits and pieces of circumstantial evidence available (as in the instant case) and when these were put together they would make stronger, corroborative and more convincing evidence than direct evidence”. Unfortunately the evidence put together against the Respondent in this matter does not make a strong case against the Respondent. Thus Appellant was unable to meet the standard required in the case he himself has cited for our consideration. The Respondent’s explanation throughout the proceedings has been consistent and we find it reasonable. At the Security Department investigation (page 72 of the Record of Appeal item 4:17) in response to a question Respondent explained why the cage was hoisted to the skipping level that he was not in the cabin and did not drive the Winder on 21/12/12 and so could not tell exactly. He denied any wrongdoing on 9th, 11th and 12th December 2012. When the Committee pressed him further to explain what could account SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 for the Winder machine going beyond the normal level he explained that this could be due to a mistake or that the driver may have been sleeping. In his witness statement he stated in paragraphs 19 & 20 that he had a similar experience of the Winder machine going beyond the normal level on 12/12/12 when operating the machine. The Appellant then proceeds to use this incident of 12/12/12 which Respondent cited to conclude that he had connived to steal. We think this is far-fetched and does not satisfy the test of proof beyond reasonable doubt required for a criminal charge in a civil case. It is trite law that circumstantial evidence must lead irresistibly to the conclusion of an accused’s guilt but in the instant case the evidence does not lead irresistibly to the Respondent’s guilt and thus cannot satisfy the test. The main representative and the main witness of the Appellant Percy Baidoo in his witness statement filed on 19th June, 2017 indicates that on receiving information on the alleged stealing of quartz by some galamseyers and its own workers, Management began investigations which revealed major irregularities in its operating system. The Respondent was interrogated among others and he indicated that there had been prior occurrence of such irregularities but Respondent failed to report same to Management in accordance with company procedure. The irregularities had occurred on the 9th, 11th and 12th of December, 2012. The Respondent was a driver in charge of the cage on 12th December, 2012, one of the days on which an irregularity in the movement of the cage occurred. The Respondent explained that this might have been due to the winder being faulty. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 The Appellant representative said Respondent failed to log down the faults and anomalies that occurred in the machine or equipment. Paragraphs 16 – 18 of the witness statement of Appellant’s Representative (on page 108 of the ROA) are very relevant information which disclose why Respondent was dismissed and we quote same in extenso: “16. The plaintiff owed a duty to the defendant company to undertake his duties in accordance with his terms of employment and his actions amounted to a breach of that duty. 17. The plaintiff was dismissed on the basis that he did not follow the protocol laid down by the defendant company. 18. It is the contention of the defendant company that the plaintiff was not wrongfully dismissed but was dismissed on evidence of wrong doing which occurred on 12th December, 2012 found by the Committee through its investigations.” At common law, no one can question an employer for terminating the employment of a worker who is inefficient and has flouted laid down rules and in whom the employer no longer has trust. The problem is the Appellant’s attempt to turn this breach of protocol or error into a charge of conniving with illegal miners to steal quartz and misuse of property against the Respondent. We agree wholly with the trial Judge that the so called circumstantial evidence adduced could not support these charges and thus the dismissal on these grounds was wrongful. We agree with the Trial Judge in his observation as follows: “The evidence against the Plaintiff in the proceedings from investigations to the findings should not have led to the recommendation of a dismissal. The Plaintiff was not investigated SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 for misuse of the Defendant’s property. He was investigated for connivance with illegal miners to steal gold.” We agree further with the Trial Judge that the Respondent in his evidence reasonably explained the causes of the irregularities and should be given the benefit of the doubt. Thus in our view the first ground of appeal has not been made out and lacks merit. Second Ground The second ground of appeal is that the Learned Judge erred in Law in his allocation of the burden of proof in the determination of the matter. The particulars of the error are: a. Finding that the burden of proof of the Respondent’s claim was on the Appellant. b. Finding that the Appellant had the burden to prove that the dismissal was, in accordance with the terms of the Respondent’s employment. Counsel for the Appellant’s main contention is that the trial Judge put the obligation on the Appellant to prove the case the Respondent brought to court. Counsel argued that based on the Law on the allocation of the burden of proof the trial judge did not have any basis for putting the burden on the Appellant in the matter. Counsel for the Respondent on the other hand contends that the Trial Judge did not wrongly allocate the burden of proof on the Appellant. We agree with Counsel for the Respondent that the Trial Judge did not wrongly place the burden of proof on the Appellant. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 At page 4 of the judgment the Trial Judge stated as follows: (See page 378 of the ROA). “This means that in all civil cases the Plaintiff or the party who alleges must lead the credible and admissible evidence so as to have a ruling in his/her favour. The Defendant only bears a burden where the Plaintiff had led credible and admissible evidence to establish his claim that the Defendant is expected to lead evidence to rebut same fairly when a ruling is made against him. With this exposition what comes to mind is that the obligation to lead evidence in civil trial is not static but that same move from party to party depending on what is asserted or alleged and by which of the contesting parties.” We think the above is an accurate statement of the Law in respect of the burden of proof. We are emboldened in this view by the dicta in the case of Tagoe vrs Accra Brewery Ltd cited supra. This is a case which has some similarities with the instant case. It involved a reputable manufacturing company that terminated the appointment of one of its employee. A Disciplinary Committee’s report and the issue of proof of a criminal charge in a civil matter came up for consideration in the case as in the instant case. The apex court delivering itself through Benin JSC as he then was stated as follows in Holding 1 “In a claim founded on wrongful termination of employment contract the Plaintiff assumed the initial burden of producing evidence to satisfy the court about his terms of employment and also that the termination of his employment was contrary to the terms of his employment or existing law. The defendant would then be obliged to produce evidence to justify the termination. Thus in the instant case despite the Respondent Company’s plea of assault as justification for the termination of his appointment, the burden of proof did not shift on to the Respondent Company before the Appellant had made a case”. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 At page 826 the apex court stated as follows: “The High Court Judge also held, and rightly so, that assault was a criminal offence and thus the standard of proof was that beyond reasonable doubt, although in a civil trial. The court held that since it was the Respondent which was alleging assault against the Appellant, the burden of producing evidence and of persuasion rested with it and was required to prove same beyond reasonable doubt. In the court’s view whilst the Appellant had succeeded in proving that he did not commit the offence for which his appointment was terminated, the Respondent Company did not meet the required standard of proof; indeed it failed to lead any direct evidence of the alleged assault”. The above accurately represents the situation in the instant case. The Trial Judge’s finding, which we endorse, was that the Respondent had explained reasonably that he did not commit the offence of conniving to steal quartz with illegal miners for which his appointment was terminated. On the other hand the Appellant Company did not meet the required standard of proof in the case i.e. proof beyond reasonable doubt that the Respondent had connived to steal. It failed to lead any direct evidence of the alleged stealing. The circumstantial evidence put forward was not strong enough to meet the threshold. Thus in our view the second ground of appeal has no merit and fails. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 Third Ground:- The Learned Judge erred in finding that the Respondent’s dismissal was wrongful and unfair after making a finding that the Appellant followed due process in the Respondent’s dismissal. Particulars of a. Upholding the assertion that Respondent’s dismissal was wrongful and unfair even though due process was followed. b. Overruling the findings of the duly constituted disciplinary Committee as not in consonance with the law. c. Applying the wrong standard of proof in assessing the conclusions and recommendations of the disciplinary committee against the Respondent. As rightly remarked by Counsel for the Appellant in his written submission all the three issues listed above have been dealt with under ground one, the omnibus ground. Our position therefore remains the same. The ground has not been made out. It is a fact that the Trial Judge stated that the Appellant Company had followed due process in the Respondent’s dismissal. He however made it abundantly clear that notwithstanding, that the Appellant had not been able to prove the charge of conniving with illegal miners to steal and misusing company property against the Respondent. It was on the basis of this that the Trial Judge, rightly in our view, adjudged the dismissal as wrongful. This ground is therefore dismissed as unmeritorious. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 Ground Four The Learned Judge erred in law in the granting of the Respondent’s reliefs 1, 2, 3 and 4. Particulars of a. Granting Respondent what amounted to special damages without any particulars. b. Granting the reliefs from the date of dismissal until the date of final judgment contrary to law. Appellant’s Counsel in his submission contends that the Respondent tendered no evidence in support of why he was entitled to the reliefs he was claiming. He argues that special damages must be specifically proved as it is aimed at compensating the affected person for actual loss suffered. Counsel cited the cases of Bisi Vrs Tabiri (alias) Asare (1984-86) 2GLR 282 and Tema Oil Refinery Vrs African Automobile Ltd H1/213/2009 (unreported) dated 11th March 2010 in support of this position. He argues that the dismissal letter Exhibit AA3 listed all the benefits due the Respondent and same have accordingly been paid him. Counsel for the Respondent on the other hand argues that the Trial Judge awarded damages not special damages against the Appellant which is in accordance with the law. Counsel states that the Respondent in his evidence i.e. witness statement, (see page 83 of the ROA) indicated that he worked from 23rd August 1982 to 25th March 2013 with the Appellant Company. At the time of his dismissal Respondent was 50 years old and, other SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 things being equal, would have retired in 2023. Counsel argues that following the wrongful dismissal of the Respondent he was considered a de jure employee from the year 2013 to 2018 when judgment was delivered. The Respondent was therefore entitled to be paid for that period. Counsel relied on the authority of Tagoe Vrs Accra Brewery Ltd cited supra in support of his position. This calls for a review of the position of the law on what damages are to be paid when a determination has been made by a court that there has been a wrongful dismissal or termination and we proceed to do so. We believe the opening paragraph of Dr. S. K. Date-Bah in his article in the Review of Ghana Law 1976 titled Remedying Wrongful Dismissal: The way of the Iconoclast [1976] Vol. III No. 3 RGL 211 – 223 would be a good starting point. He stated therein as follows: “In an economy such as the Ghanaian one, with widespread unemployment and underemployment, those in employment have a vital interest in holding what they have. Wrongful dismissal in such an economy is thus a graver wrong than say, in England with its near full employment. Dismissal in an economy with full or near full employment, often merely means a change of job for the person dismissed, whereas in an economy such as the Ghanaian one, it may entail a long period of idleness and unemployment.” This is a statement made about 45 years ago, and times have changed, Britain and for that matter no country may at this moment have full employment but it is still true that wrongful dismissal in Ghana and in our part of the world has more serious effects than in a country like Britain. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 MacGregor in Damages, 18th Edition 1043 at 28 – 002 states as follows: “The measure of damages for wrongful dismissal is prima facie the amount that the claimant would have earned had the employment continued according to the contract subject to a deduction in respect of any amount accruing from any other employment which the claimant in minimizing damages either had obtained or shall reasonably have obtained... the onus here is on the Defendant to show that the claimant has or should have obtained an alternative employment.” In the case of Societe Generale De Compensation Vrs Moshie Ackerman [1972] 1 GLR 413 CA the court held that: “The measure of damages for wrongful dismissal is the loss thereby incurred, and subject to the duty of a Plaintiff to mitigate his loss, it will normally be the amount of wages due and payable for the agreed period of service inclusive of any other benefit to which he is entitled by virtue of the contract.” In Hemans Vrs G. N. T. C. [1978] GLR 4 C. A. The court held as follows: “Where the compensation for lawful termination of a contract of employment was one month’s pay it would appear preposterous to award the same one month’s salary where the termination was unlawful. In the instant case a just award was four months’ salary”. In Akorful Vrs State Fishing Corporation [1991] 2 GLR 348 “Where the Plaintiff was summarily dismissed for allegedly allowing himself to be influenced by monetary gains in the discharge of his duties based on the findings of the disciplinary committee set up to investigate the theft of 50 cartons of fish. The Plaintiff sued inter alia for Declaration that the dismissal was wrongful, SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 The court held that “summary dismissal on the supposed ground of dishonesty rooted on his past record was wrongful. The Plaintiff by this dismissal had been kept out of job for over ten years. The court believed he would have earned his promotion if he had stayed on the job and therefore made the following awards. a. All his lost salary calculated from the date of interdiction to the date of judgment. b. Payment of three months’ salary in lieu of proper notice: c. All his end of service awards calculated form date of judgment. d. ¢400,000 damages for prospective loss of promotion or loss or employment. e. Interest on a and b. In the case of Klah Vrs Phoenix Insurance Co. Ltd (2012) 2 SCGLR 1139 where the Plaintiff was summarily dismissed from employment of the Defendant company for alleged “refractory and unprofessional behavior in the company’, the court held that where an employee was wrongfully dismissed by an employer, the measure of damages would be calculated largely on the basis of the applicable principle, namely, to place the injured party, as far as money could do so, in the position he would have been but for the breach. The case of Tagoe Vrs Accra Brewery Ltd cited supra is very apposite as it explains further the principle in Nartey Tokoli The apex court per Benin JSC delivered itself as follows on the issue. “In the case of Nartey Tokoli Vrs Volta Aluminum Co Ltd No 2 (1989-90) 2GLR 341, SC the court held that employees who were wrongfully and illegally dismissed were entitled to all the benefits under their CBA and any statutory benefits. It was because their termination infringed existing legislation that the court held it to be SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 illegal null and void thereby entitling them to be treated as de jure employees and therefore entitled to all benefits including even those founded on what was described as a gentleman’s agreement …” The Trial Judge cited the Nartey Tokoli and Tagoe cases and relied on the principle therein in arriving at his decision. On the basis of the authorities referred to we are of the view that the Learned Trial Judge did not err in granting the reliefs claimed by the Respondent and we accordingly endorse same. Counsel for the Appellant refers to the decision of this Honourable Court in the case of Anglogold Ashanti Ghana Ltd vrs Alhassan Sinare Suit no H1/60/2020 (date 29th October 2020) unreported in which this court relying on the case of Lt Col. S. B. Ashun Vrs Accra Brewery (2009) SCGLR 81 which affirmed the decision in Nartey Tokoli Vrs Valco (1987- 88) 2GLR at stated as follows: “Contract of employment is not necessarily a contract till the retirement age”… A contract of employment, though it may be for a indefinite period does not mean life employment. Claim (d) endorsed on the Plaintiff’s writ of summons is however based on the fallacious conception that there is an expectation interest in a contract of employment till the age of retirement.” There appears to be a conflict in the two positions adopted by the Supreme Court and it may be necessary for the apex court to resolve this apparent conflict as to whether a wrongful dismissal should lead to the payment of salaries to the affected employee till his retirement age or not. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 In the instant case we take the position that the Tagoe case further explains the Nartey Tokoli (2) principle and applying the principle to the facts, of this case we endorse the decision of the trial Judge to grant all the reliefs of the Respondent. Accordingly we find and hold that the fourth ground has not been made out and is not meritorious. In conclusion the appeal is dismissed in its entirety and the judgment of the Trial Judge dated 11th December 2018 is hereby affirmed. ALEX B. POKU-ACHEAMPONG (sgd) (JUSTICE OF THE COURT OF APPEAL) I agree, ANGELINA M. DOMAKYAAREH (MRS) (JUSTICE OF THE COURT OF APPEAL) (sgd) I also agree, ERIC BAAH (sgd) (JUSTICE OF THE COURT OF APPEAL) SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 COUNSEL: 1. Esther Koomson for Defendant / Appellant 2. Osei Boateng for Plaintiff /Respondent. SUIT NO: H1/29/2021, ANGLOGOLD ASHANTI (GH) LTD VRS JOB KINGSTON BOAKYE-MENSAH 24 /2/2022 35