THEOPHILUS ADDO & 9 ORS V STANDARD CHARTERED BANK & UNION OF INDUSTRY, COMMERCE & FINANCE OF T.U.C OF GHANA

JUDGMENT

BRIGHT MENSAH JA: 

The plaintiffs/appellants herein, on 28th day of January 2016 caused to be issued in the registry of the High Court, Accra (Labour Division), a writ of summons claiming against the defendants/respondents, the reliefs stated hereunder:

i.              A declaration that the memorandum of understanding reached between the 1st and 2nd defendants on 22/1/2016 is not binding on the plaintiff [sic] as they were never consulted by the defendants before, during or after the meeting that culminated in the signing of the said MOU.

ii.            An order setting aside the said MOU signed on 22/1/2016.

iii.           A further order for the parties to go back and renegotiate the redundancy package before the redundancy exercise is carried out.

iv.           An interlocutory injunction restraining the 1st defendant from carrying out the intended redundancy exercise or terminating the appointment of the plaintiffs pending the determination of the suit.

Having been served with the plaintiffs/appellants’ writ that was accompanied by a statement of claim, the 1st defendant/respondent entered an appearance within the statutory period and subsequently filed its defence to the claim. On record, the 2nd defendant/respondent was tardy in filing its processes on time, the result of which was that the plaintiffs/appellants obtained an interlocutory judgment against the 2nd defendant/respondent. However, the 2nd defendant/respondent successfully applied to set aside the interlocutory judgment but in pain of Ghc2,000.00 costs awarded against it. An appearance was entered as well as a defence filed on its behalf.

It is noteworthy that the plaintiffs/appellants pursuant to leave of the lower court granted them, amended the endorsements on their writ to read:

1.    A declaration that the memorandum of understanding reached between the 1st and 2nd defendants on 22/1/2016 is not binding on the plaintiff [sic] as they were never consulted by the defend- ants before during or after the meeting that culminated in the signing of the said MOU.

2.    An order setting aside the said MOU signed on 22/1/2016.

3.    A further order for the parties to go back and renegotiate the redundancy package before the redundancy exercise is carried out.

4.    An interlocutory injunction restraining the 1st defendant from carrying out the intended redundancy exercise or terminating the appointment of the plaintiffs pending the determination of the suit.

5.    A further declaration that the 1st defendant has discriminated against the plaintiffs by placing a Cap of 17½ years in working the redundancy pay due each of them whilst others who were also laid off at the same time received the full package, having worked for 17½ years or less with the same employer (1st defendant).

6.    Special damages as set out in the schedule below (Appendix 1) Representing the difference between what each Plaintiff is entitled to having regard to the number of years served as staff of 1st defendant and what the 1st defendant has proposed to pay under the memorandum of understanding signed on 22/01/2016. [Full detail of Appendix 1 is set out on p.117 roa]

 

7.    General damages for wrongful termination of appointment.

8.    Costs.

It is instructive that both defendants/respondents denied substantially the claim of the plaintiffs/respondents. Issues having been joined between the parties, the matter went to trial accordingly and terminated in favour of the defendants/respondents. The judgment of the lower court was delivered on 30/10/2019. Being aggrieved with the said judgment, the plaintiffs/appellants have appealed against it on a number of grounds as contained in the Notice of Appeal filed 01/03/2019, namely that:

1.    The learned judge erred in law when she held that the im- position of the cap of Seventeen and half (17½) years by

the defendants in the computation of the redundancy pack- age was not discriminatory against those who had served for more than Seventeen (17) years.

2.    The learned judge erred when she held that the imposition of the cap of Seventeen and half years (17½) by the defend- ant is constitutional.

3.    The learned judge erred in law when she held that the termination of plaintiffs’ employment due to the redundancy exercise was a fair termination of their employment.

4.    The learned judge erred in law when she held that the memo- randum of understanding (MOU) signed on 22nd January 2016 was binding on the plaintiffs.

5.    The judgment is against the weight of evidence on record.

6.    Additional grounds shall of filed upon receipt of the record of proceedings.

See: pp 392-393 of the record of appeal [roa]

  

The judgment of the lower court complained of, appears on pp 379 – 391 of roa. So far as the records go, no additional grounds of appeal were ever filed.

In this appeal, I shall simply refer to the plaintiffs/appellants as the appellants, and the defendants/respondents, respondents.

Appeal is by way of rehearing the case:

An appeal is by way of rehearing the case. The settled rule is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it was the trial court. Where the court below comes to the right conclusion based on the evidence and the law, its judgment is not disturbed. On the other hand, it attracts being upset on appeal where the judgment is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A.

The appellant in the instant appeal contends in ground (b) of his notice of appeal that the Ruling of the lower court is against the weight of the affidavit evidence. In law, the contention that a judgment is against the weight of evidence throws up the whole case for a fresh consideration of all the facts and law by the appellate court. See: Owusu- Domena v Amoah (2015-2016) 1 SCGLR 790.

Where an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which if applied in his favour could have changed the decision of the trial court, or that certain pieces of evidence have been wrongly applied against him. The onus is however on such an appellant to clearly and properly demonstrate to the appellate court, the lapses in the judgment being appealed against. See: Djin v Musah Baako (2007-08) SCGLR 686.

 

On the authorities, where there is the contention that the judgment was against the weight of evidence this appellate court, like the trial court, has the duty to evaluate and asses the evidence led at the trial court, as well as the pleadings filed therein, in order to come to come its own conclusion.

In considering the appeal, I notice that the grounds of appeal Counsel for the appellant filed did not comply with the mandatory rules of this court. The grounds as housed in notice of appeal are narrative and argumentative, and in particular, Counsel did not specifically give particulars of the alleged errors. That clearly sin against the Court of Appeal Rules, CI 19, rule 8. Significantly, Rules 8(4) of CI 19 provide:

“(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.

Insofar it is relevant, I also reproduce for purpose of our discourse, Rule 8(6) of CI 19 that enacts as follows:

“(6) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.”

 

[emphasis supplied]

 

It bears emphasis that the courts have always frowned upon non-compliant with mandatory rules of procedure. In FKA Co. v Nii Tackie Amoah VI & ors (Civil Appeal No. J4/1/2016 dated 13/02/2016 (unreported) the Supreme Court speaking through Akamba JSC ruled, inter alia, as follows:

“............... it is important to stress that the adjudication process thrives upon law which defines the scope of operation. It is trite to state for instance that nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appropriate relevant provision, be it substantive law or procedural

law. As courts if we fail to enforce compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths to uphold.”

The Supreme Court in Ayikai v Okaidja III (2011) SC GLR 205 re-echoed the rule that non-compliance with the rules of court result in fatal consequences as they not only constitute an irregularity but raise issues of a jurisdictional nature as to whether or not the jurisdiction of the court has by the irregularity been properly invoked.

This court speaking through Kpegah JA (as he then was) stating the principle in Zabrama v Segbedzi (1991) 2 GLR 221 ruled:

“To state in a notice of appeal, as did the appellant's counsel, that "the trial judge misdirected himself and gave an erroneous decision" without specifying how he misdirected himself, was against the rules and rendered such a ground of appeal inadmissible. The implications of rule 8 (2) and (4) of the Court of Appeal Rules, 1962 (L.I. 218) was that an appellant after specifying the part of a judgment or order complained of, must state what he alleged ought to have been found by the trial judge, or what error he had made in point of law. It did not meet the requirement of those rules to simply allege "misdirection" on the part of the trial judge. The requirement was that the ground stated in the notice of appeal must clearly and concisely indicate in what manner the trial judge misdirected himself either on the law or on the facts. The rationale was that a person who was brought to an appellate forum to maintain or defend a verdict or decision which he had got in his favour should understand on what ground it was being impugned. Therefore, as the ground of appeal alleging the misdirection failed to meet the required standard, it was clearly inadmissible.”

The principle was re-echoed in Animwaah Yeboah v Amponsah (2010-2012) 1 GLR 1 wherein the Court of Appeal stated that the law was well settled that any person who alleged an error of law in his grounds of appeal was enjoined by rule 8(4) of the Court of Appeal Rules, 1997 (CI 19) to give particulars of the error or misdirection.

In our present appeal, I do think that the appellants having stated that the learned trial judge erred in law without giving full particulars as regards the law that she is accused of having violated, is not sufficient to ground the claim that the trial judge erred.

Now, having regard to the law as enshrined in Article 136(5) of the 1992 Constitution, that is to say, that this court is bound by its own decisions, I strike down as improper, the grounds (1) to (4) of appeal. However, in order not to dismiss the appeal on a technical ground by reason of the striking out of those grounds, and to do justice in the matter, I hereby apply the practical approach the Supreme Court adopted in Vodafone Gh Ltd v International Rom Ltd (2015-2016) 2 SCGLR 1389.

 

In Vodafone case (supra) the Supreme Court had struck down substantially, all the grounds of appeal formulated for having violated Rule 6(4) & (5) of CI 16. However, the apex court speaking through Akamba JSC stated:

“In order not to yield overly to legal technicalities to defeat the cries of an otherwise sincere litigant, we would and hereby substitute them with what actually emerged as the core com- plaint and general ground which is that the judgment is against the weight of evidence.”

In our present case, the appellants added that omnibus ground that the judgment of the lower court was against the weight of evidence. As stated elsewhere in this judgment, the omnibus ground throws up the whole case for real assessment and analysis, and for this court to come to its own conclusion as to where the balance of probabilities tilts.

Now, it is the case of the case of the appellants that sometime in August, 2014 the respondents went into negotiations that resulted in the signing of a memorandum of understanding (MOU), Exhibit C [found on pp 167-168 of roa] that was applicable to employees of the 1st respondent bank. Per Exhibit C, all employees of the 1st respondent affected by redundancy exercise shall be entitled to two (2) months basic pay for each completed year of service.

The memorandum of understanding Exhibit C, according to the appellants, was subsequently amended by an addendum the respondents made to it on 12th September 2014 that culminated in Exhibit D [appearing on p. 160 of roa]. It was provided in Exhibit D that employees who were affected by redundancy exercise and had worked for a period above twenty two and half (22½) years up to twenty-nine (29) years shall receive forty-seven (47) months’ salary as redundancy pay whereas those who had served above twenty-nine (29) years up to thirty-seven and half (37 1/2) years shall be entitled to forty- nine (49) months’ salary.

The appellants say further, that on 22/01/2016, the respondents agreed on another redundancy package reviewing the previous memoranda. That was tendered in evidence as Exhibit B [found on pp 165-166 of roa]. The appellants claim that Exhibit B substantially reduced the existing redundancy package. Accordingly, it has been seriously touted on behalf of the appellants as contained in the written submissions of Counsel for the appellants if the 1st respondent bank was going to renegotiate the terms of redundancy package that impacted the appellants, the 2nd respondent ought to have given them notice, and consulted them. They claim that that was not done. The appellants therefore contend that by failing to consult them, the 2nd respondent lacked they express consent or their mandate to make any concessions or accept any offer at the table of negotiations. It is their case, therefore, that the implementation of Exhibit B that sought to reduce the redundancy package substantially was discriminatory and unconstitutional.

Now, in marshalling arguments in support of that contention that the reviewed packaged was discriminatory and unconstitutional, learned Counsel for the appellant has referred us to Article 17(2) of the 1992 Constitution and advocated that the learned trial judge erred in law in finding that the redundancy package was as a matter of fact, not discriminatory. To Counsel, the trial judge ought to have resorted to the provisions of the 1992 Constitution to hold that the package was discriminatory rather than making a finding of fact that it was not discriminatory and therefore, unconstitutional.

It was equally argued on behalf of the appellants that Article 24 of 1992 Constitution provides that every person has the right to work under satisfactory, sage and healthy conditions, and shall receive equal pay. Therefore, the appellants being employees of 1st respondent who are subjected to the same redundancy exercise must be treated equally, Counsel stressed. He also argues that Exhibit B was arrived without appellants being consulted. Exhibit B does not promote and protect the economic interest of the appellants and therefore contrary to Article 24(3) of the 1992 Constitution.

Furthermore, learned Counsel for the appellants in his written submissions has pressed on this court that discrimination is a matter of law as enshrined in the 1992 Constitution therefore the learned trial judge was required to apply the law to the facts of the case instead of making a finding of fact that the cap of Seventeen and a half (17½) years was neither discriminatory nor unconstitutional.

Per contra, it was submitted on behalf of the 1st respondent bank that the claim by the appellants that they were discriminated against was untenable. Learned Counsel for the respondent in his written submissions stated clearly that the conditions under which the 2014 redundancy exercise [Exhibit C] were negotiated were materially different from the 2016 exercise [Exhibit B] that affected the appellants herein. He added that Exhibit B was negotiated and agreed upon between the respondents, having taken into consideration the exigencies at the time. Therefore, the differences in the terms of Exhibit B and Exhibit C did not make the latter void or unacceptable. Learned Counsel in support, did refer us to Volta Aluminium Co. Ltd v Tetteh-Akuffo & ors (Civ. App. No. 10/2001 dated 29/04/2004 in which it was stated that S.10(4) of the Industrial Relations Act, 1965 (Act 299) did not deny to a trade union which had negotiated a collective agreement the authority to modify it or waive rights under it.

Learned Counsel did emphasize that the appellants have been unable to show or prove that the respondents in negotiating and signing Exhibit B on their behalf, either violated or misapplied the law; that the terms of Exhibit C as amended by Exhibit D were different from Exhibit B that applied to the appellants.

Counsel then invited this court to be slow in interfering with the judgment of the lower court. In support, he referred us to Boya v Mohammed (subst’d) (2017-2018) 1 SCGLR 136.

Legal analysis & findings of this court: 

It is common ground that the appellants are members the 2nd respondent union. In her judgment as appearing on p. 385 of roa, the learned trial judge made a finding of fact that the 2nd respondent union holds the collective bargaining certificate to enter into any negotiations with the 1st respondent bank on behalf of the appellants.

Relying on the ratios established in Nartey-Topkoli & ors v Volta Aluminium Co. Ltd (1989-90) GLR 341, and Mrs Janet Doe v Social Security & National Insurance Trust and the Trust Hospital Ltd (Civil Appeal No. J4/13/2016 (unreported) the learned trial judge in our view, rightly held that Exhibit B containing the agreement on the negotiated redundancy package was binding on the appellants. The lower court explained that being members of the 2nd respondent union, the appellants had agreed that all issues of employment between them and the respondent were handled by the 2nd respondent on their behalf.

At p.9 of her judgment as reproduced on p. 387 roa the learned trial judge made a finding of fact that based on the evidence led on record did not in any way suggested that the appellants were discriminated against. She further finding that the cap of seventeen and a half (17½) was neither discriminatory nor unconstitutional.

We cannot agree more with the lower court on its analysis and conclusion reached supra, on account that once by law it was the 2nd respondent that has to negotiate any conditions of service and or redundancy package on behalf of the appellants, the appellants ceded the power of negotiations to the 2nd respondent union. Needless to emphasize, the individual worker typically lacks meaningful bargaining power to negotiate favourable employment terms with his employer. That gives credence to the formation of workers’ union to represent a group of workers and to give the workers a meaningful seat at the bargaining table.

In Ghana, the Labour Act, 2013 (Act 651) governs labour issues; the determination of conditions of service and redundancy exercise, etc. Indeed, it is that statute that grants workers the right to join a workplace labour union and to engage in collective bargaining that improves their conditions of employment and their exit.

S. 96 of Act 651 setting out the perimeters of collective bargaining power provides that a collective agreement relating to the terms and conditions of employment of workers, may be concluded between one or more trade unions on one hand and representatives of one or more employers or employers’ organizations on the other hand.

As a matter of fact and law, negotiations are conducted through negotiating committees or joint negotiating committee. This is provided for in S. 102 of Act 651 that stipulates:

“(1) Negotiations on the matters connected with the employment or non-employment or with the terms of employment or with

the conditions of employment of any of the workers of the class specified in a certificate issued under section 99, shall be conducted through the standing negotiating committee or the joint standing negotiating committee.

(2) Either party represented on the committee may give notice to the other party requiring them to enter into negotiations on the matters which may properly be dealt with by the committee.

(3) An agreement concluded between the parties shall be in writing and signed by a duly authorised member of the committee representing each party and two copies of the agreement shall be deposited with the Commission and the Chief Labour Officer.”

Now, the process by which an employer may declare and or embark on redundancy exercise is spelt out in S. 65 of the Labour Act, 2013 (Act 651) that enacts:

(1) When an employer contemplates the introduction of major changes in production, programme, organisation, structure or technology of

an undertaking that are likely to entail terminations of employment of workers in the undertaking, the employer shall

 

 

(a)  provide in writing to the Chief Labour Officer and the trade union concerned, not later than three months before the contemplated changes, the relevant information including the reasons for the termination, the number and categories

of workers likely to be affected and the period within which the termination is to be carried out; and

 

(b)  consult the trade union concerned on measures to be taken to avert or minimize the termination as well as measures to mitigate the adverse effects of the terminations on the workers concerned, such as finding alternative employment.”

Needless to emphasize, the evidence of John Senanu Amegashie, General Secretary of the 2nd respondent union that the 1st respondent bank before it embarked on the redundancy exercise it complied with the provisions of the Labour Act, 2003 (Act 651) by notifying the Chief Labour Officer and subsequently, the 2nd respondent union engaged in negotiations with the 1st respondent bank, on behalf of the appellants were never challenged or rebutted in any way. See: pp 261-262 roa.

It bears stressing, the appellants never contended that the 2nd respondent ever sidestepped the rule of negotiation with 1st respondent on their behalf that culminated in Exhibit B. The effect of Exhibit B reached between the 1st respondent bank and the 2nd respondent union on behalf of the workers affected by the redundancy exercise, the appellants is that the negotiations were lawful in terms of S.105 of Act and, therefore binding on the parties as well as the appellants. That provision of the law runs as follows:

“(1) An agreement concluded by a trade union through a standing negotiating committee or a joint standing negotiating committee shall, so far as the terms of the agreement permit, apply to the workers of the class specified in the certificate.”

 

But it has been touted most vociferously that the appellants were discriminated against insofar as the redundancy package was far less than the one signed in 2014, Exhibit C as amended.

Significantly, Article 17(2) of the 1992 Constitution provides: “(2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.”

As regards what constitutes “discrimination”, clause 3 of Article 127 stipulates:

“(3) For the purposes of this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to dis- abilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.”

Without attempting to interpreting the provisions of the 1992 Constitution stated supra because that it is the sole preserve of the Supreme Court, whilst this court’s limited jurisdiction is to apply those provisions, in applying those provisions to the instant appeal we venture to say that the appellants would have made a case of discrimination if some preferential treatments were accorded to some of the affected workers under the 2016 memorandum of agreement that culminated in Exhibit B. Put differently, if some of the affected workers who were entitled to same conditions and package were given less whilst the rest were given more, that undoubtedly would have been discriminatory.

Now, having regard to the reasoning stated supra, I do roundly agree with the learned trial judge’s finding that the termination of the employment of the appellants due to redundancy exercise was fair termination of employment. That is in accordance with S. 62 of Act 651 that runs as follows:

“A termination of a worker’s employment is fair if the contract of employment is terminated by the employer on any of the following grounds:

 

(a) that the worker is incompetent or lacks the qualification in relation to the work for which the worker is employed;

(b) the proven misconduct of the worker;

 

(c) redundancy under section 65.”

 

In the circumstance, I uphold the submissions of learned Counsel for the 1st respondent that the Labour Act, 2003 (Act 651) grants parties to negotiating table to enter into agreements within the confines of the law and that the courts should be slow in interfering with such negotiated agreements.

We think that the learned trial judge reached the right conclusions and the conclusions ought not be disturbed. The settled principle is that primary findings of fact are the preserve of the trial judge and where such findings are supported by the evidence on record as we find in the instant case, those findings are not disturbed. They are sparingly disturbed only in exceptional circumstances, grounded in law. See: Quaye v Mariamu (1961) GLR 93 SC.

Conclusion:

Weighing the considerations as best as I can, it is obvious that on the balance the case strongly weighs heavily in favour of the respondent. In view of the compelling evidence on record, I do agree with the learned trial judge’s conclusion that the respondent is entitled to its claim. The learned trial judge having carefully reviewed the evidence in whole, rightly applied the law to the facts of the case. I have no good cause whatsoever to disturb the judgment of the trial court and do hereby affirm it.

Consequently, the appeal is dismissed in its entirety. Costs of Ghc5000. Awarded in favour of the 1st defendant/respondent.

SGD

P. BRIGHT MENSAH

(JUSTICE OF APPEAL)

DZAMEFE JA

I agree      

SGD                                                                             

SENYO DZAMEFE

(JUSTICE OF APPEAL)

 

AGBEVOR JA

I also agree   

SGD                                                           

 N. C. AGBEVOR

(JUSTICE OF APPEAL)

 

 

Counsel

Opoku Boateng for Plaintiffs/Appellants

Noor-Deen Saeed for 1st Defendant/Respondent with Jessica Amoabeng, Maame Adjoa Ofosu Antwi & Osiarfo Acquaah