Ghana Commercial Bank Ltd v Commission on Human Rights and Administrative Justice
Supreme Court, 29 January 2003
For the judgment of Brobbey JSC, see (2003) AHRLR 163 (GhSC 2003)
Ampiah, J. S. C. I agree.
Wood, J. S. C.
In exercise of its constitutional and statutory powers, the respondent, the Commission for Human Rights and Administrative Justice, conducted an investigative hearing into a petition brought by an ex-employee – one R S A Kwaku, against the appellant, Ghana Commercial Bank Ltd. The Respondent followed it with an originating notice of motion, for an order to compel the appellant to comply with orders it made that it pays to the petitioner, all benefits due him since 1984, and at levels prevailing at the date of the recommendation.
Aggrieved with the decision of the Court of Appeal, which substantially affirmed the decision of the trial High Court, the appellant has appealed to use on the following four grounds:
“(1) judgment is not supported by the law and evidence adduced at the hearing;
(2) the trial court, not having seen and examined the evidence adduced at the hearing before the commission, erred in seeking to enforce a ruling allegedly based on the evidence;
(3) the action is statute-barred; and
(4) the damages awarded by the court cannot be justified in law.”
I think that it is prudent to deal with grounds (2) and (3) first. In my opinion, they raise substantial and fundamental legal and procedural matters. If the arguments in respect of the ground (2) were upheld, it would set out in unambiguous terms, one of the duties of trial courts in actions brought by the commission for the enforcement of recommendations or decisions, arising from investigative hearings brought under the relevant provisions of article 218 of the 1992 Constitution and section 7 of the Commission for Human Rights and Administrative Justice Act, 1993 (Act 456). Again, if ground (3) succeeds, it would entirely dispose of the appeal.
Undoubtedly, the functions of the commission as provided for under articles 218(a), (b), (c) and (e) and by section 7(1)(a), (b), (c), (e) and (f) are all purely investigative. Since the commission has no self-enforcement powers, it has been mandated under articles 218(d)(iii) and (iv) and 229 of the 1992 Constitution as well as section 18(2) of Act 456, to institute proceedings before any court and seek the appropriate remedies for the enforcement of its recommendations.
The main question raised by the self-explanatory ground (2), and the extensive argument made in support thereof, is whether the court before which actions under articles 218(d)(iii) and section 18(2) are instituted, are without exception, constitutionally and by statute bound, to re-open the matter brought before it by scrutinizing the ruling in the light of the evidence adduced at the investigative hearing and granting the remedies sought only upon being satisfied with the validity of the findings and recommendations mad, vis-à-vis the evidence led at the hearing. Stated differently, would the commission’s action therefore automatically fail, whenever it did not make the relevant evidence available for the court to “re-hear” the matter and make its own independent assessment of the matter complained of.
I do not think so. I would endorse the Court of Appeal’s position in this issue, namely, that our High Courts are not clothed with any such jurisdiction. Indeed, the Court of Appeal speaking with one voice concluded that: “The High Court had no jurisdiction to usurp the functions of CHRAJ or to re-open the matter de novo.” The duty of the High Court in relation to the originating notice of motion was simply to grant the order compelling the Ghana Commercial Bank Ltd, the respondent in the proceedings before the High Court, to implement the decision of the commission unless it was clearly in breach of the principles of natural justice or otherwise unjustified in law or in fact.
The substantive point made by the Court of Appeal, and which I agree with, is that it is not in all cases that a re-opening or a re-hearing of the complaint is required. In typical common law fashion, I dare not attempt an exhaustive listing of those cases in which the commission, either suo motu or on the court’s orders, ought to make the evidence available for the necessary re-hearing to be conducted. Suffice it to say, however that, quite apart from those instances cited by the honourable Court of Appeal, where the production of the evidence is imperative, (and even so I believe for purposes which may not necessarily even demand o require an actual judicial review of the findings and the recommendations made) I do foresee a situation where the opposing may have rigorously denied the fact that any such hearing were conducted or that evidence was collected from it. Under such circumstances, a production of the evidence becomes a sine qua non, as it would undoubtedly assist the court in making a proper determination of the issue raised, namely, as to whether or not the investigation hearing ever took place. Even so, from the issues joined, the court would not need to review findings and recommendations made. In any case, where an issue is even raised on the face of the affidavits, and it is one which can be conveniently determined on the strength of the affidavits and annexes, a production of the evidence adduced at the hearing may not be called for.
It is therefore clear that in all these cases where the production of the evidence so collected is required for purposes including the re-opening and re-hearing of the complaint lodged, it must be apparent on the fact of the affidavits. It is only in such plain instances that the production of the recorded evidence, whether written or mechanical, is so vital that the non-production would damage the commission’s case. But certainly, if the main facts upon which the order sought remains largely undisputed, no duty rests on the commission to produce the evidence, and none rests on the court either to call for it and review the findings and recommendations made. We would create a legal oddity, if we ruled that without exception, there ought to be a re-hearing of matters which have undeniably been investigated by the constitutionally and mandated authority commission in accordance with the rules of natural justice and the law.
So perhaps to do justice in this case, we should ask this question: What was the appellant’s response to the originating motion on notice? Did it raise any issues which called for the production and examination of the evidence, for an independent assessment of the case by the learned trial judge?
The answer to this question naturally calls for an examination of the affidavits filed on both sides. The respondent Commission for Human Rights and Administrative Justice deposed to the following essential facts in its accompanying affidavit:
“(1) In order to resolve the issues that came up, the applicant, i.e. the commission, invited the parties to a hearing at which both oral and documentary evidence was taken.
(2) That evidence adduced before this commission showed that there was an acceptable practice at the bank where the manager of a branch could give loan facility of the kind that the petitioner made.
(3) That there was evidence of other managers giving loans which were higher than what the petitioner gave and the bank did not complain.”
The appellant Ghana Commercial Bank Ltd’s response was that:
“(4) The respondent bank has noted that the applicant in paragraph (8) of its affidavit admits that the petitioner has acted without authority.
(5) The respondent bank says in response to paragraphs (11), (12) and (13) that managers give unsecured loans without authorization at their own risk and cases where the loans are not refunded they are held accountable.
(6) The respondent bank says that it is merely following its laid down rules and regulations in insisting that the petitioner’s benefits be withheld until the customer liquidates the debt.
(7) The respondent bank finds paragraphs (14) and (15) of the applicant’s affidavit unacceptable in that they suggest that managers should be at liberty to grant loans to friends/customers without any authorisation and go unpunished when the loans cannot be recovered.
(8) The respondent bank maintains that should the applicant’s argument be upheld by the court, branch managers will be encouraged to give loans to themselves, refuse to pay and yet retire with their benefits.
(9) The respondent bank says it failure or refusal to comply with the applicant’s ruling is because it is dissatisfied with it and believes the entire ruling to be wrong and misconceived.”
Unfortunately, no particulars of the alleged error and misconception were supplied by the appellant bank and the respondent commission did not exercise the option of asking for them either.
It is clear, however, that counsel for the appellant did not attack the basic depositions that both sides were heard and also that the facts as deposed were all elicited from the evidence adduced on both sides. His main complaint was that, given those sets of facts or circumstances, the final conclusions reached and recommendations made were clearly out of order. Under which circumstances, the production of the recorded evidence was vital to the commission’s case. And, the court had jurisdiction to call for the evidence and or “re-open” and “re-hear” the complaint, and make its own findings on the issues joined.
In any case, the bank’s case as argued at the actual hearing of the originating motion on notice, was not such as required production of the evidence. Indeed, it is from the arguments of counsel for the bank that we do catch a glimpse of what allegedly was wrong with the ruling of the High Court. The argument of counsel for the bank was that the petitioner gave an unsecured loan which the bank has been unable to retrieve. But this fact about the loan being unsecured, was vehemently denied by the commission. And the denial was clearly corroborated by the unchallenged paragraph (9) of the affidavit in support of the originating motion on notice. I would reproduce it:
“(9) The petitioner stated that he granted the loan in the normal course of his duties after he had satisfied himself of the validity of the customer’s business. He did so on the strength of the value of the customer’s assets of ¢6.7m.”
This issue of the collateral was never challenged by the appellant bank in its opposing affidavit. Indeed, the only paragraph it made reference to and gave specific answers to are paragraphs (6), (8) and (11)-(15). It follows that no issue was joined between the parties on the question of whether or not the petitioner gave an unsecured loan. The respondent commission cannot therefore be blamed for failing to produce the evidence led, if any, in proof of this fact. No blame attaches to the learned trial judge either for failing to inquire into this issue either.
Indeed, given the state of the affidavits, the trial judge was most benevolent to have allowed the appellant bank to raise this matter of the absence of a collateral when it failed to dispute that fact in the opposing affidavit. Be that as it may, in any case, on the strength of the available affidavit evidence, that issue was resolved in favour of the respondent commission. Clearly, where the issue raised in the originating motion on notice could be determined from the available affidavit, would there be any need for the production of the evidence collected a investigation hearing? And would the non-production do damage to the commission’s case? Certainly not. I find no merit in this ground of appeal.
The central argument in support of the third ground of appeal is simply that the respondent commission ought not to have entertained the petition since it was clearly statute-barred both in terms of sections 3 and 4 of the Limitation Decree, 1972 (NRCD 54), and section 13 of the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456).
Although this ground of appeal raised the issue of statute bare, counsel for the appellant bank advanced as many as three reasons in support of the argument that the commission was barred under section 13 of Act 456 from investigating the matter. Two of them are, in my respectful view, misconceived, as they have no bearing to the plea of statute or time bar as provided for under section 13 of Act 456.
These were that: first, that there has always been remedies both at common law and under the statute, specifically section 36 of the Labour Decree, 1967 (NLCD 157), for wrongful termination of employment and other allied matters. Second, the overwhelming evidence is that the petitioner’s case had been thoroughly investigated by several bodies. Third, the petitioner waited for some nine long years before laying his complaint before the commission in spite of the fact that he had full knowledge of the alleged wrongful act. The contention therefore was that, having clearly slept on his rights, he was out of time and the respondent commission ought not to have entertained his claim.
One of the most crucial answers raised in response to the plea of time bar is that it was not raised before the Court of Appeal. Consequently, it never became an issue for trial and cannot therefore be raised at this hearing. The general and undoubtedly salutary rule that where a point of law is relied on in an appeal, it ought to have been one which was canvassed at the court below – trial or appellate – and which was, however, wrongly pronounced upon, admits of very clear exceptions. This court had had occasions to determine the issue of whether or not it is permissible in an appeal hearing, to raise a legal point for the first time only, in this court, in the case of Kwame v Serwah [1993-94] 1 GLR 429. In this case, it was held that: