DIANA OYE AHENE VS NATIONAL HEALTH INSURANCE AUTHORITY & ANOR (H1/13/2022) [2022] GHACA 154 (14 April 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA - GHANA CORAM: SUURBAAREH, J.A (Presiding) DODOO J.A. BARTELS-KODWO, J.A SUIT NO. H1/13/2022 14TH APRIL, 2022 DIANA OYE AHENE ……………… PLAINTIFF/APPELLANT VRS. 1. NATIONAL HEALTH INSURANCE AUTHORITY DEFENDANTS/RESPONDENTS 2. THE ATTORNEY-GENERAL J U D G M E N T BARTELS-KODWO, J.A: SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 1 The Plaintiff/Appellant (hereinafter, the “Appellant”) brought this action on 28th September, 2017 before the High Court, Labour Division, seeking the following reliefs: a. A declaration that the letter from the Secretary of His Excellency, the President, dated 9th May, 2017 directing the Plaintiff to proceed on indefinite leave with effect from 15th May, 2017 is without due process or contrary to law; b. A declaration that as Plaintiff is a member of the public services of Ghana, Plaintiff’s employment cannot be terminated by Defendant without just cause; c. A further declaration that the termination of employment of Plaintiff by Defendant was without just cause, and accordingly unlawful; d. An order directing Defendant to pay Plaintiff’s salary, allowances, and other benefits from 12th June, 2017 till the date of her statutory retirement in February 2025; e. An order directing Defendant to pay Plaintiff’s pension contributions to the appropriate institutions from 12th June, 2017 till the date of her retirement in February 2025; f. Costs including solicitor’s fees; and g. Any further or other relief as this Court may deem fit. After pleadings were closed, the issues set down for trial were as follows; I. Whether or not at all material times the Plaintiff was an employee of the 1st Defendant. II. Whether or not the Plaintiff was a member of the Public Services of Ghana. III. Whether or not it is/was lawful for the Plaintiff to be directed to proceed on indefinite leave. SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 2 IV. Whether or not the termination of the employment of the Plaintiff was unlawful and/or without just cause. V. Whether or not sections 4(2) and 5(4) of the National Health Insurance Authority Act, 2012 (Act 852) justified the termination/revocation of the appointment/employment of the Plaintiff. VI. Whether or not the Plaintiff is entitled to the reliefs she seeks. VII. Whether or not the President directed the termination/ revocation of the appointment of the plaintiff. VIII. Whether or not 1st Defendant is a proper party to the suit. IX. Any other issue raised by the pleadings. The case of the Appellant is that she was employed by the 1st Respondent in July 2009 until the termination of her employment in June 2017. In May 2017, she received a letter dated 9th May, 2017 from the Secretary to His Excellency the President of the Republic of Ghana directing her to proceed on indefinite leave with effect from the 15th of May, 2017. The Appellant complied with the directive. The Appellant states that on 19th June 2017, she complained to the 1st Respondent about not having received her salary for the month of May 2017. To her surprise, she was given another letter which informed her that her appointment as a Director for the Private Health Insurance Scheme had been terminated effective 12th June, 2017. The Appellant thus brought this action, contending that her termination was unlawful and without just cause. On their parts, the Respondents case is that His Excellency the President, being the person responsible for appointing the Appellant had the power to ask her to proceed on indefinite leave and ultimately to terminate or revoke her appointment. The 1st Respondent stated that the termination was done by His Excellency the President SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 3 and was only merely communicated to the Appellant by the 1st Respondent. The 2nd Respondent on its part submitted to the Court that the termination of the Appellant’s appointment was in line with the statutory power of the 1st Respondent to terminate her appointment. The 2nd Respondent also said that the Appellant was paid three months salary in lieu of notice which was in line with the Appellant’s letter of appointment issued by the Public Services Commission on 25th March, 2014. FINDINGS OF THE HIGH COURT Relying on Section 1(1) of the National Health Insurance Act of 2012, (Act 852) the High Court ruled that despite claims to the contrary by the 1st Respondent that it was not responsible for the termination of the Appellant’s appointment it had capacity to sue and be sued and that the letter terminating the appointment of the Appellant was “the handiwork of the 1st Defendant”. The Court also ruled that the appointment of the Appellant was made by the 1st Respondent. The Court also found that the evidence before it showed that the Appellant was “for all intents and purposes”, an employee of the 1st Respondent and that even though she was appointed to the Board of the 1st Respondent by the presidency in consultation with the Public Services Commission, she was an employee of the 1st Respondent, paid by the 1st Respondent. Consequently, the 1st Respondent was a proper party to this suit. The Court then held that it was not controversial that the Appellant was an employee of the 1st Respondent, a public corporation, and therefore a member of the Public Services of Ghana. On the issue of whether or not sections 4(2) and 5(4) of the National Health Insurance Authority Act, 2012 (Act 852) justified the termination/revocation of the SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 4 appointment/employment of the Appellant, the High Court held that sections 4(2) and 5(4) have nothing to do with the Appellant’s appointment as Board Secretary to the Governing Board of the 1st Respondent, and so the 1st Respondent cannot purport to rely on those provisions to justify the termination of the Appellant’s appointment as secretary to the 1st Respondent’s Board. On the issue of whether or not it is/was lawful for the Appellant to be directed to proceed on indefinite leave, the Court stated that the directive to the Appellant to proceed on indefinite leave did not assign reasons for her to proceed on leave. The Court restated the law under Article 191 and applied that constitutional provision to the facts of this case and thus found that the directive was arbitrary, unfair and unlawful. On the issue of the lawfulness or otherwise of the termination of the Appellant or whether or not such termination was with or without just cause, the Court below, citing the Supreme Court decision in the case of John Tagoe v. Accra Brewery Ltd. [2015], held that “it is a fallacy on the part of the plaintiff to think that her appointment cannot be terminated when her contract of employment clearly makes provision for such a termination.” The Court also found that the Appellant was paid three months’ salary in lieu of notice satisfying the terms of her agreement. The Court then found that the Appellant had been unable to establish that the termination of her employment was at the instance of His Excellency the President and found that it was done by the 1st Respondent. The Court below also found that the Appellant’s termination was carried out in accordance with her contract. The Court cited the case of Theophilus Donkor v. The Attorney General (Writ no. J1/08/2017) wherein the Supreme Court held that a public servant may not be removed except in accordance with the terms and conditions of his or her contract, and that in the absence of such terms and SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 5 conditions, a public servant may be terminated for just cause. Consequently, the Court below held that the Appellant was not entitled to the reliefs she sought. GROUNDS OF APPEAL The Appellant therefore brings this Appeal on the following grounds; 1. The judgment of the High Court is against the weight of the evidence before the Court. 2. The learned High Court Judge erred in law in dismissing all the reliefs sought by the Appellant: The alleged error by the Appellant was particularized as follows; After finding that the directive of the Secretary to His Excellency the President to the Plaintiff to proceed on leave was arbitrary, unfair and unlawful, the learned trial judge was not entitled to; a. dismiss relief a endorsed on the Appellant’s writ of summons which sought a declaration that the letter from the Secretary to His Excellency the President is without due process or contrary to law; b. and award cost of GHS7000.00 against the Appellant. c. The learned High Court Judge erred in law when she held that the Appellant was unable to discharge the burden placed on her or that termination of her employment was lawful. This alleged error by the Appellant was particularized as follows; SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 6 a. The learned trial judge misapplied the decision of the Supreme Court in the case of Theophilus Donkor v. A-G when she held that pursuant to that decision, the employment of the appellant could be terminated subject to payment of salary in lieu of notice. b. As a public office holder appointed under article 195, of the Constitution, the Appellant is entitled to security of tenure and cannot be removed from office without just cause, which excludes termination on notice or termination subject to the payment of salary in lieu of notice. i. Removal from office for just cause as contained in article 191(b) of the Constitution does not warrant and permit the termination of the employment of the Appellant subject to the payment of salary in lieu of notice. ii. Article 191(b) of the Constitution prevails over any terms and conditions of employment of the Appellant that seek to deny her security of tenure as contemplated by the said Article 191(b) of the Constitution. ARGUMENTS OF THE APPELLANT The Appellant’s first ground of appeal is that the judgment of the High Court is not supported by the weight of the evidence in the matter. In support of this ground of appeal, the Appellant submits that the High Court did not give adequate consideration to vital evidence on the record, and that the judgment is inconsistent with the totality of the evidence on the record. The Appellant takes particular issue with the following findings of the Court below; 1. That there was no clear directive from the Office of His Excellency the President that the Plaintiff’s appointment was to be terminated. SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 7 2. That the Plaintiff’s appointment was terminated in accordance with the terms of her employment contract, specifically paragraph 8. 3. That after having kept a greater portion of her exit package, the Appellant “cannot turn around and claim that her appointment had been terminated unlawfully”. The Appellant avers that paragraphs 5 and 6 of the 1st Respondent’s Statement of Defence state that the termination of the appointment of the Appellant was at the instance of His Excellency the President. Further the Appellant states, the witness statement of the only witness of the 1st Respondent states that the termination of the Respondent was done at the instance of His Excellency the President. The Appellant says that this testimony went unchallenged. The Appellant also points to paragraph 6 of the 2nd Respondent’s statement of defence which says therein that, the 2nd Respondent admits that the termination was done on directions from the office of His Excellency the President in the following terms, “ 6. Save that the Plaintiff’s appointment was terminated by a letter dated 12th June, 2017 by the 1st Respondent, upon the directions of the office of the President, paragraph 5 of the Plaintiff’s Amended Statement of Claim is denied.” (emphasis the Appellant’s) The Appellant contends that the above constitutes abundant evidence that the termination of her appointment was done upon the directions from the office of the President. The Appellant also argues that the Court below relied on Exhibit 2 to find that the Appellant was terminated in accordance with the terms of her contract of employment, when Exhibit 2 relates to her terms of engagement as Board Secretary of the 1st Defendant and not her employment as Director of the Private Health Insurance Scheme. As a result, the Appellant says Exhibit 2 is not relevant and ought not to have been relied upon by the lower Court. The Appellant says that the core of her case was the termination of her employment as Director of the Private Health SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 8 Insurance Scheme and not her appointment as secretary to the Board of the 1st Respondent. The Appellant cites the case of Yovuyibor v. Attorney-General [1993-94] 2 GLR 343 and says that there are two types of public service employees, careerists, who hold permanent appointments and officials holding temporary appointments for fixed periods. The Appellant says that her appointment as Board Secretary fell into the latter category, while her appointment as a Director with the PHIS fell into the former. The Appellant citing the Presidential Transition Act of 2012, Act 845, argues that the Appellant, not holding an office listed in the schedule to that Act, was entitled to continue in office subject to the provisions of the Constitution and relevant law. ARGUMENTS OF THE RESPONDENTS The Respondents argue that the judgment of the Court of High Court is sound and ought not to be disturbed. They contend that the Appellant “labours under one main misapprehension, which is that the order from the Presidency that she proceed on leave automatically renders her termination from employment as Director (PHIS) unlawful, when in fact such is not the case at all.” Then the Respondents go on to follow the above with what could be described as the thesis statement of the their defence, “Rather, under the terms of the Plaintiff/Appellant’s employment contract, she may be terminated without reason with three month’s [sic] notice or with three month’s [sic] salary in lieu of notice.” The Respondents argue that this contractual provision is the basis for the Court below’s finding that the termination of the Appellant’s employment with the 1st Respondent was lawful. SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 9 The 1st Respondent also argues that the Appellant seems to be confused about the nature of her employment with the 1st Respondent. According to the 1st Respondent, the Appellant held one and not two contracts of employment with the 1st Respondent. The 1st Respondent is of the view that the Appellant is not some long serving public servant with security of tenure guaranteeing her employment until retirement. The 1st Respondent, citing the case of KOBEA V. TOR & AKOMEA-BOATENG (CONSOLIDATED) (2003-2004) SCGLR 1033, asserts that the relationship between the Appellant and the 1st Respondent was governed by the common law of contract, and that the parties were free to terminate that relationship at any time in accordance with the terms of the contract. Thus, according to the Respondents, the 1st Respondent is free to terminate the Appellant’s employment “whenever [it] wishes and for whatever reasons, provided only that [it] gives due notice to the employee or pay the employee in lieu of notice.” The Respondents are of the view that the 1st Respondent was under no obligation to give reasons for or justify the termination of the Appellant. The 1st Respondent is of the view that the Appellant has failed to lead enough evidence to establish that she was wrongfully terminated. The 1st Respondent asserts that this is because the Appellant, “was unable to call any witnesses in support of her case”, presented evidence which “fell short of its intended purpose to corroborate aspects of her witness testimony of any note”. The 1st Respondent also concludes that when the Appellant was cross-examined by counsel for the 1st Respondent, the testimony of the Appellant “had the effect of … discrediting her claims, … [and] also establishing and supporting the 1st/Defendant/Respondent’s case against the Plaintiff/Applicant’s.” These assertions are made in paragraph 8 of the written submission of the 1st Respondent. SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 10 The 1st Respondent says that the Appellant admitted on cross-examination that she held one job with the 1st Respondent and received one salary, and not two and as a result, she was not entitled to two distinct termination packages. The 1st Respondent argues that the Appellant cannot make a claim of unlawful termination with regards to her engagement as a board secretary. THE LAW AND ANALYSIS It is trite that an appeal is by way of rehearing. When an appellant raises the omnibus ground as a ground of appeal, an Appellate Court is duty bound to examine the entirety of the evidence before it in order to come to a declaration of the merits or otherwise of the appeal. Article 191 of the 1992 Constitution states as follows; “191. Protection of public officers A member of the public services shall not be (a) victimised or discriminated against for having discharges his duties faithfully in accordance with this constitution; or (b) dismissed or removed from office or reduced in rank or otherwise punished without just cause. In the case of Theophilus Donkor v. The Attorney-General [2019] (Unreported), the Supreme Court found as follows; “Members of governing boards of statutory boards and corporations appointed in accordance with article 70(1)(d)(iii) of the Constitution are not members of the Public Service and their tenure is not governed by articles 191 and 195 of the Constitution. SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 11 Therefore, each person may be removed at will by the President. We declare accordingly.” In that case, the Supreme Court also held as follows; “Upon a true and proper interpretation, a Public Service Officer appointed in accordance with article 195 of the Constitution and may not be removed save in accordance with the terms and conditions of his or her contract of engagement or in the absence of such, for ‘just cause’ pursuant to articles 191 and 195 of the Constitution.” The implication of the above is quite clear. The Apex Court decided in that case that when it comes to members (and secretaries) of governing boards of public institutions and corporations, these appointments do not make them public servants and they can be removed at will. The Supreme Court arrived at that position after analysing various statutes regulating different governing boards. Due to this finding and the constitutional requirement under Article 129(3), this Court is constitutionally bound to hold that with regards to her engagement as secretary to the board of the 1st Respondent Authority, the President is entitled to remove her at will from this position. The Supreme Court also held that Public Officers appointed in accordance with Article 195 may be removed in accordance with the terms of their contracts, or in the absence of such, for just cause in accordance with Articles 191 and 195. When it comes to Appellant’s employment as a director with the NHIA, the Appellant asserts that any termination of her employment must be in accordance with law and not just the contract governing the relationship between her and the 1st Respondent. The evidence before the Court is that her employment was terminated without observing the provisions of Article 191(b). The entire procedure leading to her SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 12 dismissal as an employee of the 1st Respondent was without regard to procedural propriety and constitutional requirements. The High Court rightfully found that the letter from the presidency was “arbitrary, unfair and unlawful”, yet turned around to dismiss the relief sought by the Appellant seeking a declaration to that effect and awarding costs of GH¢ 7000 against the Appellant. This is an apparent error which this Court will exercise its appellate jurisdiction to reverse. Accordingly, we grant relief (a) of the Plaintiff’s reliefs. Additionally, in spite of strong attempts to distance the office of the President, which authored the letter compelling the Appellant to proceed on leave (Exhibit J), from the Appellant’s eventual termination, the letter from the 1st Respondent terminating the appointment of the Appellant references Exhibit J. Additionally, in paragraph 6 of the 1st Respondent’s witness statement, it denies that the dismissal of the Appellant was originated by the 1st Respondent and squarely lays the blame at the feet of the presidency in the following terms; “The termination of the Plaintiff by a letter dated 12th June 2017 from the 1st Defendant company was exercised by His Excellency the President and not by the 1st Defendant who was merely directed by the Presidency to convey the Notice of the fact of the Plaintiff’s termination to her…” (emphasis added) This Court agrees with counsel for the Appellant when he says that Article 191(b) is implied into the terms and conditions of public service. Ordinary public servants should have the freedom and peace of mind to discharge their duties without fear that they would be removed without cause or explanation whenever a government changes. This is a threat to the institutional knowledge which is sorely needed in many public departments and authorities. We find that the President’s power to revoke the appointment of a board member at will as found in the case of Theophilus Donkor (supra) does not extend to careerists SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 13 who are permanent staff of the public service. These people are the people sought to be protected by Article 191. They can only be terminated for just cause or stated misbehaviour. Termination at will is a breach of the provisions of the Constitution and is for that matter, unlawful. The Appellant however, has not put before the Court any evidence which shows that that the amount of GH¢ 166,790.39 which was paid to her with the exception of GH¢ 28,478.19, which the Appellant rejected, was entirely in relation to her engagement as a secretary to the board. While the Court below found that the Appellant is not entitled to her reliefs because she kept the GH¢ 166,790.39, this Court will find the inverse. The Appellant is entitled to damages for twenty-four (24) months. This Court therefore makes an order that the Appellant to be paid her salaries and allowances for 24 months to attract interest at the prevailing bank rate from the time of judgment till the date of final payment. The appeal therefore succeeds to that extent. (Sgd.) JANAPARE A. BARTELS-KODWO (MRS.) (JUSTICE OF APPEAL) (Sgd.) Suurbaareh, (J. A.) I agree G. S. SUURBAAREH (JUSTICE OF APPEAL) SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 14 (sgd.) Dodoo, (J. A.) I also agree JENNIFER DODOO (MRS.) (JUSTICE OF APPEAL) COUNSEL: ▪ Jemla Ahmed Esq. for Plaintiff/Appellant ▪ Veronica Dossah Esq. for Defendants/Respondents SUIT NO: H1/13/2022 Nana O. Ahene vs. NHIS & Anor 15