ISAAC K. KOBI & 24 OTHERS v GHANA MANGANESE COMPANY LTD.

JUDGMENT

QUAYE, J.A.

Before the 19th May,1999, the plaintiffs/appellants herein enjoyed the rights and privileges and performed the obligations that attached to their respective positions as employees of the defendant/respondent company.

The said date however witnessed a monumental shift in their relationship and drastically plunged them into an uncertain and shaken future with their employers.

The significant event of 19th May, 1999 was a demonstration or strike action embarked upon by the workers. The actual event has been variously described and qualified. While the workers of the defendant company described it as peaceful, the defendant company in official terms classified it as violent. In the wake of the demonstration, the respondent company took two significant steps. In the first place they closed down the mines; and then after a space of three and a half weeks or there about caused the workers, or in any event, those of them who were disposed to continue to be in the employment of the respondent company to execute a "declaration of renewal of confidence and loyalty to GMC/MANAGEMENT" as a condition for re-opening of the mine. The said declaration form which was dated on 31st May, 1999 was tendered in evidence in the trial court as exhibit 'D'. On the same date, a circular notice had been issued, once again emanating from the respondent company, and judging by its contents, a deduction can be made that it preceded or was meant to forerun exhibit 'D'. For ease of reference and effect, exhibit 'C' is hereby reproduced in extract only.

"CIRCULAR. 31st May, 1999. Following the meeting held between the Ghana Mines Workers Union, the Senior Staff Association Executives and Management of the Ghana Manganese Company Limited, at the request of the Ministry of Employment and Social Welfare, on 31st May, 1999, Management wishes to inform all workers that it has rescinded its decision to close down the company and dismiss all the workers.

Consequently, workers who wish to continue their employment with the Ghana Manganese Company Limited and are prepared to abide by the Rules and Regulations of the company are advised to collect declaration forms between 10.00 hours and 17.00 hours each day from the District Labour Office at Tarkwa, whose office is temporarily located at the Nsuta Police Station.

All such completed declaration forms should be returned through the District Labour Office for consideration not later than 10.00 hours on Thursday, 3rd June 1999."

Exhibit 'C' was signed by the resident Director of the respondent company. Evidence led before the trial Court by the Resident Director on 13th December 2001 showed emphatically that all but two of the entire workers of the respondent company collected the forms and duly affirmed their confidence in management and loyalty to the respondent company. One is open to conjecture that those who did not follow the procedure for the re-opening of the mines automatically ended their service therein, and that those who completed and returned the forms were to continue in employment. This fact notwithstanding, the employments of about twenty-eight of the workers, including all the plaintiffs/appellants herein were terminated. Each of them was served with a rejection letter, and a certificate of service. The latter provided the reason for leaving the service of the respondents as "Not re-admitted after closure of the mine in May 1999."

The twenty-five plaintiffs/appellants felt they had a common grievance against their former employer, the respondent herein; hence they filed an action in the High Court Registry at Tarkwa to contest the rightfulness of the termination of their appointments with the defendants/respondents. The issues that went before the trial court were:

(a) Whether or not termination of Plaintiffs' appointment was wrongful and/or illegal.

(b) Whether or not Plaintiffs are entitled to their reliefs."

The plaintiffs/appellants, it should be pointed out, prosecuted their claims severally albeit they all joined together on one writ of summons as plaintiffs. This is known to and in accordance with the procedure in the courts in Ghana by virtue of Order 16 rule 1 of L.N. 140A. In such a situation, the rule provides for, and actually enjoins the trial judge, to consider the individual claims of each of the Plaintiffs and give judgment "for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to."

At the trial the 1st, 22nd, 24th, 25, 6th, 4th, 11th, 15th and 16th plaintiffs gave evidence on respect of their individual claims while the 9th Plaintiff spoke for himself and on behalf of the 2nd, 3rd, 4th, 5th, 7th, 8th, 10th, 12th, 13th, 14th, 17th, 18th, 19th and 20th, plaintiffs. None of the plaintiff/appellants called any independent evidence from a witness to support his or their case. Evidence for the defendant/respondent was articulated through the Respondent Director and two other witnesses.

At the end of the trial, the Court dismissed the claims of the plaintiffs because, as the judge found, the action was cognisable under the provisions of the Industrial Relations Act 1965 (Act 299) and that the said provisions rendered the strike action illegal.

The plaintiffs/applicants were obviously aggrieved by and dissatisfied with the judgment and have hereby translated their grievance into the herein appeal.

As many as eight grounds of appeal were filed. Counsel for the appellants however compressed the grounds and concentrated on the first two grounds only. These are:—

(1)  The judgment is against the weight of the evidence adduced.

(2) The learned Trial Judge wrongly dismissed the claim for damages for defamation in the light of the evidence on record, hence the suit should be remitted to the High Court for consideration of the plaintiffs' claims on an individual basis."

The thrust of the appeal on the first ground, alleging that the judgment was not supported by the evidence adduced at the trial, is the statement of the trial judge dismissing the action and attaching legality to termination of the plaintiffs' employment by the defendants/respondents. Counsel submitted that it was wrong for the trial court to hold that all the employees became liable even though not all of them took part in the demonstration. Indeed it is on record, and the trial court found as a fact, that some of the employees did not take part in the demonstration. The evidence does not attribute any role, whether as instigators, participants or the like to any of them. The evidence shows that the 1st appellant was on annual vacation leave; the 22nd appellant was heavily pregnant and was preparing to proceed on maternity leave. The 23rd appellant was on night shift and had closed from work and gone home at the end of the shift in the morning of 19th May, 1999. The 24th appellant denied any involvement in the demonstration; for his part the 6th appellant's evidence established that he was not at the work premises at the time of the disturbances because he was on afternoon duty and appeared on the scene after the demonstration. The 4th appellant was not present. He reported for work in the afternoon.

The 11th appellant was on leave of absence from 17th May, 1999 to 16th June, 1999. The 15th appellant had reported sick on the 19th May 1999 and was in no good condition of health to join in the demonstration. The 16th appellant who was a nurse in the respondent's service had worked in the night and closed and left the premises of the respondent in the morning of the 19th May, 1999. Counsel for the appellants after referring to the above facts in evidence submitted that the evidence on record shows that the afore mentioned plaintiffs/appellants had-committed none of the acts set out in section 23 of Act.299 and to that extent cannot come under its purview. Section 23 of Act 299 defines the word "strike" to mean" the act of any number of employees who are not or have been in the employment of the same employer or of different employers of—

(a) discontinuing that employment whether wholly or partially;

(b) breaking their contract of service;

(c) refusing or failing after any such discontinuance to resume or return to their employment;

(d) refusing or failing to accept engagement for any work in which they were or are usually employed; or

(e) reducing their normal output or their normal rate of work"

I have deemed it relevant to reproduce the section above because the parties relied on it depending on their interpretation, and indeed the same section informed the judgment of the trial court. Essentially, it is my view that this appeal does not call for a determination of whether or not the industrial action embarked upon was legal or illegal or whether it was violent or peaceful. I should point out without equivocation at this stage that the workers did not have any prerogative of deciding whom the employer should employ. This appeal, in my mind turns on whether or not the appellants committed the acts for which they have been jeopardised with a termination of appointment, and whether the respondents had the power to terminate their appointments as they did. It is my intention therefore to consider the principal elements as contained in the evidence. In the first place, none of the appellants identified above, namely the 1st, 4th, 6th, 11th, 15th, 16th, 22nd, 23rd, 24th and 25th appellants was challenged during their respective cross examination by counsel for the respondents on their specific denial of involvement in the strike action. The law is quite succinct that where a party leads evidence and his opponent fails to take him on, shake or puncture the claims or allegations of fact he has made, then there is a presumption in law that the opponent who has failed to cross examine on the fact, has conceded that the correctness of the fact alleged. On the other hand where questions are asked during cross examination which are not weighty enough to shake the evidence, or where the answers to questions put during cross examination show that the facts in issues are more probable than not, then the court was bound to accept the facts as true. In this case, I should reiterate that the failure by the respondents to take the named appellants on, in respect of their denial of participation in the strike action for one reason or the other, is injurious to the stand taken by the respondents and renders their action in terminating the appointments of the said appellants very worrying. The trial court rightly accepted that not all of the workers took part in the strike action.

The second feature in my analysis of the evidence and the basis of the respondent's action against the appellants is in respect of the testimony given by the Respondent Director of the respondents in the trial court. He gave a bird's eye view account of the events because he was an eye witness and was positioned at a vantage point where he could clearly see developments as they unfolded. Indeed luck seemed to smile on him albeit in a daring manner when some of the demonstrators marched to the Resident Director's office and had exchanges with him. His evidence was that the workers hid their identity by wearing masks. The essential fact is, however, that the Resident Director failed to identify any one of the appellants as being among those who confronted him in the office, neither did he attribute any specific act or deed to any of them.

Further to this, none of those alleged by the Resident Director to have been assaulted, or threatened, that is to say, the secretary or the Human Resources Manager gave evidence to support what the Resident director had alleged. The evidence of the Secretary and/or the Human resources Manger was necessary to show that the demonstration was violent.

More importantly, either, if not both, of the witnesses might be in a position to identify any or some of the plaintiffs as having taken part in the demonstration. Such evidence would expose and probably deflate the cloak of alibi worn by the plaintiffs. Their evidence would be relevant in the circumstances of this case since it cannot be said that they were coming to merely repeat what the Resident Director had said and would therefore be otiose, neither derogating from nor advancing the evidence already on record any further. See ASARE vrs. DONKOR and SERWAH II (1962) 2 GLR. 176 Conversely, there 'is no suggestion in this appeal turning on knowledge on the part of the respondents that the interests of the said witnesses were at variance with those of the respondents and were therefore not likely to testify on their behalf—See ABADOO vrs. AWOTWI [1973] 1 GLR.393. I am nevertheless mindful that the uncorroborated evidence of the Resident Director, if it meets other legal requirements for the discharge of the burden, can be relied upon as sufficient to base a finding of fact upon. In this case however, the evidence of the Resident Director in issue falls short of the legal requirements, and as it stands, is too porous and dangerous to justify any allegation of ill- conduct by the appellants.

Lastly, I intend to consider the minutes of the meeting held under the auspices of the DWI who, at the material time was Deputy Minister for Employment and Social Welfare. It is essential, to also analyse exhibit 'C' (supra) and, may be, the steps taken in to effectuate the termination of the appointment of the appellants.

The final agreement at the meeting held in the Ministry of Employment and Social Welfare as recorded in exhibit '2' was . . . . . . . . . . . that Management would come out with a form on which the conditions of the re-entry to the company would be spelt out  ....... 'The Respondent Company subsequently issued exhibit 'C' (supra) wherein they assured the workers that as a fall out from the meeting evidenced by exhibit 2 (supra) Management had "rescinded its decision to close down the company and dismiss all the workers". This raises a presumption that none of the workers including those who planned and those who actually took part in the demonstration was going to be penalised or victimised. Management was then seen to be exercising a prerogative of pardon across board and unconditionally. If therefore it was still deemed necessary to penalise any or some of the employees for their part in the industrial action then the law requires that such action on the part of the Respondents must be founded on reasonably justifiable ground and not arbitrary. The question that comes up therefore is, whether the Respondents' termination of the appellants can pass the test of substantial evidence. Were the appellants made escape goats merely to tell the world at large that the Respondents can bite and really bite hard. Where the termination of the appellants cannot be reasonably justified under the substantial evidence test, then that conduct cannot be held in law to be legal. The substantial evidence rule was stated in MARSHALL vrs. CONSUMERS POWER CO. 65 Mich. App.237 as such evidence that a reasonable mind might accept as adequate to support a conclusion. It is that quality of evidence necessary for a court to affirm a decision of an administrative board. Under the "substantial evidence rule" reviewing courts would defer to an agency determination so long as, upon an examination of the whole record there is substantial evidence upon which the agency could reasonably base its decision." Have the respondents herein made any reasonable ground on which their termination of the appointments of the appellants, can be justified. Relying upon the facts alone I do not think so.

Before I am accused of not dealing with the individual cases of the appellants, I must hasten to add that the 22nd, 23rd, 24th and 25th appellants were senior staff and were deemed not to be part of a demonstration that had been called and executed by the unionised staff. It would appear, and I shudder to mention the irony of circumstance in this case. It is patent upon the evidence that the executive members of both the Senior Staff Association and the Local Mine Workers Union assisted the Management immensely in all the meetings and deliberations leading to the reopening of the mines. It appears however that the axe rather fell on them.

From the above reappraisal of the evidence I firmly agree with Counsel for appellants' contention that the trial court's judgment is against the weight of the evidence led.

The above consideration, so far relates to the facts and evidence led No firm decision can however be made on this one sided consideration. The other equally relevant issue in this appeal is to find and establish the nature of the action that was taken by the respondents. It is beyond dispute that the appointments of the appellant were terminated. The severance of the appointments of the appellants needs to be put into a strait jacket. Cleary their severance of employment was not a summary dismissal but a termination of appointment. Without the need to quote any legal authorities, it is common knowledge that clear distinctions exist between the two. I will only attempt to note the commonest. While in summary dismissals the employer may state reasons for their action, the employer is not equally bound to give any reason for termination of appointment. Besides this, an employee whose service was to be terminated was entitled to notice or payment in lieu thereof, and also payment of all his entitlements.

This was the position taken by this court inARYEE vrs STATE CONSTRUCTION CORPORATION [1984-86] 1 GLR.424. In that case the appellant's appointment was terminated on grounds of his misconduct in conspiring with another person to discredit the corporation in a local newspaper, and after he had apologised to his employers after a sober reflection, he subsequently wrote to the President of the Ghana with copies to some of the Ministers, and in that letter he virtually repeated the allegations and insinuations which he had earlier withdrawn and apologised for.

When his appointment was terminated, he was given physical payment in lieu of notice together with other entitlements. The Court held inter alia.

"(1) a contract of service was not a contract of serutude. To say, as we are wont to do, that it gave rise to a master-servant relationship was to distort reality . . . . . . . . . . . The contract was framed in such a way that either party might bring it to an end and free himself from the relationship painlessly. In this case, the appellant could, at anytime, give the relevant three months' notice or forfeit an equivalent in salary and leave the corporation without justifying his action to the corporation. In the same way the corporation need not assign away reason for choosing to terminate their contract with the defendant. The contract merely required the corporation to give three months' notice or its equivalent in salary and their conduct be perfectly in order. On the evidence, the corporation discharged that obligation by giving the appellant three months' pay in lie of notice. In the event, the termination was perfectly in accordance with the contract of service and could not be wrongful. The corporation misled the appellant, and perhaps the court below, by seeking to state the reasons for its action. It did not need to do that. The fact that it did, however, did not detract in anyway from the general Validity of their action, expressly stated to have been taken under Paragraph 56 (c) of the contract of employment."

Article 10'02 of the Collective Agreement Between Ghana Manganese Company Limited and the Ghana Mine workers Union of the TUC (Ghana) of 8th June, 1996, confers power on the employer to terminate the employment of any worker by giving due notice or payment in lieu thereof. Once the required length of notice or its equivalence in money has been paid to the affected employee, termination is deemed legal and complete, irrespective of the fact that no reason, or wrong or unsatisfactory reason has been given. In this appeal therefore, the unsatisfactory reason for the termination of the appointments of the plaintiffs severally, would in the final analysis not make the termination wrongful or illegal. The respective letters of rejection given to each of the plaintiffs/appellants and tendered into evidence clearly show that all their entitlements were duly paid to them. The respondents cannot be faulted, neither is there any good reason to disturb the conclusions of the trial court, since in this case none of the appellants has questions the basis of the calculation of the monetary entitlements paid to them. Even though the respondents did not lead sufficient or satisfactory evidence why the appellants and not any of the other employees had their appointments terminated, they have the legal right qua employers to dispense with any worker whenever they felt his service were no longer required, and no court can challenge that decision and act once the necessary payments had been made.

Upon the evidence, not much moment was placed on the claim for damages for defamation by the appellants. Indeed apart from the 1st plaintiff/appellant who asserted before the trial Court that his office as Assembly man had been ridiculed, none of the rest of the appellants touched on that leg of claim. There being no evidence to support defamation, it is my view that the trial judge was right in not pronouncing on it. Counsel for the appellants did not substantially address the issue of defamation in his argument and submissions before us.

The words "Not re-admitted after closure of the mine in May, 1999" per se are more factual than defamatory. Upon the evidence that phrase only shows that the grantee of the certificate was, and had ceased being, in the employment after a certain date and occurrence.

On the face of the above the appeals fail and are accordingly dismissed.

G. M. QUAYE

(JUSTICE OF APPEAL)

TWUMASI, J.A.

I agree.

P. K. TWUMASI

(JUSTICE OF APPEAL)

ANINAKWA J.A.

I also agree.

R. T. ANINAKWA

(JUSTICE OF APPEAL)

COUNSEL

G. F. Gardiner for Appellants.

R.S. Agbenoto for Respondents.