Thompson v Total Ghana Ltd Civil Appeal NO. J4/3/2010

Material Facts:

Some employees of Total Ghana Ltd. were arrested, and investigated. Subsequently, the plaintiff-respondent, who was the Retail Network Development Manager of Total Ghana Ltd., was informed through a letter that he had been implicated in the investigations and was suspended. Through a letter, he contended that he was not charged by the police of any offence, and was not invited to respond to the allegations of impropriety before he was suspended. When his contention was rejected, he instituted an action in the High Court for a declaration that his suspension was null and void.

Procedural History:

At the trial court, the defendant-appellant did not call the persons whose statements were alleged to have implicated the respondent, nor did they call the police officers in charge of the investigations. Judgement was given in favour of the respondent, and the appellant appealed to the Court of Appeal, where the appeal was dismissed. The case is now at the Supreme Court.

Issue (For the Purpose of Law of Evidence):

Whether the appellant proved the allegation on which it suspended the respondent.

Holding:

The appellant did not prove the allegation on which it suspended the respondent.

Ratio Decidendi:

The appellant was the author of the letter, which alleged that the respondent was being suspended for being implicated by the statements of the arrested employees. It was therefore incumbent on it to prove that the allegation on which the suspension was based was true. Per Yeboah JSC, there was:

an obligation on the part of the appellant to provide credible evidence to the trial court that would render the allegation on which its suspension of the appellant was based more probable than the version of a denial which was the pivot of the appellant’s case. By the operation of the relevant rules of the Evidence Act the burden of leading evidence and in particular sections 11(4) and 14 the appellant left the trial court with no option than coming to the conclusion that the allegation made against the appellant that had informed his suspension was untrue. We refer to the said sections as follows:

“11 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

14 Except as provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact, the existence or non-existence of which is essential to the claim or defence he is asserting.”

The records show that the appellant did not have the evidence to support its allegation. In the absence of such evidence, the allegation made against the appellant was untrue, and his suspension was without foundation.

Principle in Case:

He who alleges has the burden of leading evidence to show that the existence of the fact he is alleging was more probable than its non-existence.