ANGLOGOLD ASHANTI V. EDWARD ARHIN AND RICHARD DANKWA

JUDGMENT

ASIEDU, JA. 

My lords, this appeal is brought against the judgment of the High Court, Obuasi  delivered on the 12th day of February 2019. The Plaintiffs/Respondents had, on the 13th day of October 2015, filed a writ of summons against the Defendant/Appellant before  the High Court for: 

a. A declaration that the dismissal of the Plaintiffs from their lawful employment  with the 1st Defendant Company was unlawful, illegal, unfair, wrongful and/or  null and void. 

b. An Order of the Honourable Court directed at the 1st Defendant Company to  reinstate the Plaintiffs and pay them their salaries from January, 2012 to date of  final judgment. 

c. An Order of the Honourable Court directed at the 1st Defendant Company to pay the Plaintiffs the remainder of their two months’ salary which they received only  half of the amounts involved after the investigation into their cases took more than  the stipulated one month. 

d. A further Order of the Honourable Court directed at the 1st Defendant Company  to treat the Plaintiffs as their employees and deal with them in the same manner it  has dealt with its employees after the judgment.

e. A further Order of the Honourable Court directed at the 1st Defendant Company to adequately compensate the Plaintiffs for unlawfully, illegally, unfairly and  wrongfully dismissing them. 

f. A further Order of the Honourable Court to pay them their  retrenchment/redeployment benefits as the 1st Defendant-Company has done to  some of its employees. 

g. Costs including Counsel’s fees. 

h. Any other relief(s) that the Honourable court may deem fit. 

After hearing the case, the High Court found for the Plaintiffs/Respondents and entered judgment for most of the reliefs sought by the Plaintiffs against the Defendant/Appellant.  Aggrieved, the Defendant/Appellant filed the instant appeal against the said judgment  on the grounds that: 

a. The learned trial judge erred when he held that the termination of the  Plaintiffs/Respondents’ employment was unlawful. 

b. The learned trial judge erred when he granted the Plaintiffs/Respondents seven  (7) years salaries each, an additional six (6) months’ salary for the 1st Plaintiff/Respondent and twelve (12) months’ salary for the 2nd Plaintiff/Respondent as benefits, including long service and reparation. 

c. The learned trial judge erred in awarding costs of GH₵8,000 to each of the  Plaintiffs. 

d. Additional grounds of appeal may be filed upon receiving the record of appeal. 

On the basis of the grounds of appeal, the Defendant/Appellant prays this court “to set  aside the judgment of the trial judge and enter judgment for the Appellant.” 

It must be placed on record that notwithstanding the service of the Written Submissions  of the Defendant/Appellant on the Plaintiffs/Respondents, the Respondents failed to file  their Written Submissions as required by rule 20 (4) of the Court of Appeal Rules, 1997,  CI.19 which provides that: 

“(4) A party on whom an appellant’s written submission is served shall, if that party  wishes to contest the appeal, file the written submission in answer to the appellant’s  written submission within twenty-one days of the service, or within the time that the Court  may on terms direct.” 

Consequently, it is provided in sub-rule 8 of Rule 20 of CI.19 that: 

“(8) Where a respondent does not file a written submission and does not agree to make a  joint written submission under this rule, the respondent shall not be heard at the hearing  of the appeal except as to the question of costs.” 

By their failure to file their Written Submissions therefore coupled with their absence  from court on the date of the hearing of the appeal, the Plaintiffs/Respondents disabled  themselves from being heard on the matter. 

It is also important to state that notwithstanding its statement in the grounds of appeal  that “additional grounds of appeal may be filed upon receiving the record of appeal”, no  additional ground was filed by the Defendant/Appellant, the appeal was therefore heard  in respect of only the grounds of appeal stated in the notice of appeal. We have decided  to discuss the appeal in the order in which the grounds of appeal have been stated.  

The first ground of appeal is that “the learned trial judge erred when he held that the  termination of the Plaintiffs/Respondents’ employment was unlawful.” On this ground  of appeal, it has been submitted on behalf of the Defendant/Appellant that: 

“The learned trial judge erred in holding that on account of the doubts as  expressed by the CDC, it should not have reached the conclusions that (1) the 1st Respondent concealed the gold bearing material on his body which was retrieved  by DW1 and (2) consequently, the 2nd Respondent was not negligent in his search  of the 1st Respondent. Respectfully, the CDC reached the conclusions it did based  on the entirety of the contemporaneous evidence before it and the trial Judge ought  to have upheld those findings. My Lords, we further submit that the trial Judge  again erred in finding that the Appellant failed to comply with the provisions of  its Disciplinary Code (Exhibit D) and the Collective Agreement (Exhibit E) and fell into grave error in holding that the Respondents’ dismissal was unlawful.” 

The Plaintiffs were both staff of the Defendant/Appellant. After close of work on the 26th February 2011, the 1st Plaintiff/Respondent was searched by the 2nd Plaintiff/Respondent  at the entrance of the work place. Immediately after the search, the 2nd Plaintiff received  a call from one Collins Afriyie who was monitoring the search on a CCTV camera. The  said Collins Afriyie instructed the 2nd Plaintiff to re-search the 1st Plaintiff/Respondent  but the 2nd Plaintiff/Respondent replied that he had searched the 1st Plaintiff and that the  1st Plaintiff has left the premises. As a result, Collins Afriyie went after the 1st Plaintiff  and met him at the STP bus stop where the 1st Plaintiff/Respondent and other workers including security employees were waiting for a bus to come and take them to where  they were going. Collins Afriyie invited the 1st Plaintiff to come with him to the office for  some questioning. On their way, according to the 1st Plaintiff, Collins Afriyie, picked  something from the ground; later, one of the security vehicles of the Appellant company  came along and they both boarded the said vehicle which took them to the STP main  office. All this while, Collins Afriyie had not conducted any search on the body of the 1st Plaintiff/Respondent. It was later that the 1st Plaintiff/Respondent was informed that he  has been arrested for having on his person a gold bearing material. A hearing was  conducted by the Central Disciplinary Committee (CDC) upon whose recommendation, the Plaintiffs/Respondents were dismissed from the employment of the  Defendant/Appellant. 

The trial Judge found in his judgment at page 12 thereof which is page 608 of the record  of appeal (ROA) that Collins Afriyie, who gave evidence as DW1, failed to search the 1st Plaintiff at the STP car park where there were so many people including other security  officers of the Defendant/Appellant company in addition to CCTV cameras. The trial  Judge also found that the CDC Report established that the handling of the incident by  Collins Afriyie, DW1, gave room for doubt as to the authenticity of his allegation that he  retrieved gold bearing materials from the body of the 1st Plaintiff/Respondent. 

It has been submitted on behalf of the Defendant/Appellant at page 9 of the Written  Submissions of the Appellant that: 

“The CDC reached the conclusions it did based on the contemporaneous evidence before it  and the learned trial Judge erred in applying a standard of proof for courts of competent  jurisdiction to the CDC Hearing. The learned trial Judge further erred in ignoring that the  CDC’s findings were based on evidence before it. From that evidence it was respectively  more likely that DW1 obtained the gold bearing material from he 1st respondent rather than  that DW1 randomly picked up the gold exhibit from the ground to frame the 1st Respondent.”  

Before the learned trial Judge, the evidence was that, the 1st Plaintiff/Respondent was  searched after close of work by the 2nd Plaintiff/Respondent and that the search was  monitored on a CCTV camera by DW1 from a room. Further, there is evidence to the  effect that when DW1 became suspicious of the manner that 1st Plaintiff/Respondent was  searched by the 2nd Plaintiff/Respondent, one Gabriel Danso, also a staff in the security  room, instructed DW1 to follow-up to the STP yard and search the 1st Plaintiff/Respondent there. All this while 1st Plaintiff was being monitored on CCTV  camera. However, upon reaching the STP yard, DW1 failed to search the 1st Plaintiff  according to the instructions given him. Instead, the evidence shows that he decided to  walk 1st Plaintiff/Respondent to the office. DW1 admitted, during cross examination that  he did not search the 1st Plaintiff at the STP yard when he met him there. There is evidence  on record before the trial Judge, as shown at page 501 of the ROA, that none of those who  gave statements to the Investigation Team, stated that they saw DW1 retrieve gold  concentrate from the 1st Respondent. These persons include Emmanuel Dartey whose  statement is recorded as exhibit 7, George Dzaka who gave exhibit 8, Gabriel Danso who  gave exhibit 9, Richard Enchill exhibit 10 and six others. So, when counsel says in her  submission that the CDC considered the contemporaneous evidence given before it, the  said evidence includes the evidence of these persons who did not state that they saw DW1  retrieve gold concentrate from the body of the 1st Plaintiff/Respondent. It is only Collins  Afriyie, DW1 herein, who gave statement, found at page 55 of the ROA, to the effect that  the 1st plaintiff brought out concentrate tied in a socks and gave it to him.  

The learned trial Judge found that even the CDC doubted the evidence given by DW1 in  respect of how he, allegedly, retrieved the said concentrate from the body of the 1st Plaintiff. It must also be pointed out that in his statement to the Investigation Team dated  the 25th February 2011, which can be found at page 55 of the ROA, DW1 stated that when  he confronted the 1st Plaintiff, he started begging and then “brought out concentrate in a  socks from his jeans trousers”. This statement was made by DW1 on the very day of the  incident, that is the 25th February 2011. Before the CDC however, DW1 stated that “it was  when the security vehicle light threw on us that I pulled it from him”. As a result of the  lack of consistency on the part of DW1, the CDC found that DW1’s “handling of the  suspect gave room for doubt”. See page 107 of the ROA. Clearly, the evidence on record  shows that DW1 was not truthful with his evidence to the CDC as well as the way he  handled the whole incident. The learned trial Judge then rhetorically questioned the  wisdom behind the actions of DW1 in his handling of the whole affair. It must be placed  on record that it is for the purpose of transparency that CCTV cameras have been installed  at the points where the workers are searched. It is to prevent a situation where a security  officer may allege that he had found a prohibited article on a worker whiles the worker  denies the allegation and there will be no independent source to use as a witness. Hence,  being a security officer himself, one would have expected that having caught up with 1st Plaintiff at the STP yard, where there were other security officers, DW1 would have  searched the 1st Plaintiff there for all present to bear witness to whatever that transpired  and not walk the 1st Plaintiff to a point where there was no eye witness only for him to  give inconsistent statement of retrieving concentrate from the 1st Plaintiff.

The learned  trial Judge therefore stated at page 612 of the ROA that:

“I therefore conclude that this issue should be resolved in favour of the 1st Plaintiff because  doubts in every matter especially ones bearing on crime inured to the benefit of the suspect  or the accused. The doubts as found by the Committee should not have led to the conclusion  reached by the Committee. The Committee’s findings were erroneous and not borne out by  the evidence on record. The evidence on record should not have led to the conclusion that  gold bearing material was retrieved from the 1st Plaintiff. According to the evidence on  record, when the 2nd Plaintiff was called to conduct a further search on the 1st Plaintiff he  had left the cubicle and was still within the company’s premises. The 2nd Plaintiff indicated  that he did a proper search and the 1st Plaintiff left and so if they entertain any doubt about his search then they could conduct another search on the 1st Plaintiff. I have drawn the  conclusion that the exhibit was not retrieved from the 1st Plaintiff and the 2nd Plaintiff  could not be said to have been negligent on his search of the 1st Plaintiff. It would have been  vice versa where it was established that the gold concentrate was retrieved from the 1st Plaintiff and that would only lead to the conclusion that the 2nd Plaintiff was negligent” 

Counsel for the Defendant/Appellant has criticised the above finding and holding of the  trial Judge and has argued in her Written Submissions that “the Judge erred in applying  a standard of proof for courts of competent jurisdiction to the CDC hearing. Counsel  referred to Frederick Waribankaara v. Notre Dame Seminary Secondary School  (Unreported) Suit No. H1/06/204 dated 13th April 2016 and submitted that  Administrative Bodies are not required to apply and or satisfy any standard of proof and  that theirs is to find facts and that the learned trial Judge “wrongly applied the standard  of proof in criminal trials to the CDC’s hearing”. 

It ought to be pointed out that the Defendant/Appellant went to the High Court on an  allegation that the 1st Plaintiff was guilty of stealing. In paragraph 55 of its statement of  defence, the Defendant pleaded that: 

“55. The 1st Defendant denies paragraph 53 of the statement of claim and adds that  mitigation factors do not inure to the benefit of any person found guilty of stealing gold  bearing material and negligence of duty” 

The issues placed before the High Court, did not call upon the court to rubber-stamp the  findings of the CDC. The High Court was, by virtue of the reliefs sought by the Plaintiffs,  called upon, to establish the lawfulness, the legality, the fairness or otherwise of the  dismissal of the Plaintiffs from the employment of the Defendant. Therefore, by  positively asserting in its statement of defence that the 1st Plaintiff was found guilty of  stealing, it does not lie within the rights of the Defendant to complain that a different and  a lower measuring rod should be applied in assessing the basis for its assertion contained  in paragraph 55 of its statement of defence which has been quoted above. It has always  been the position of the law that where an allegation is made, of the commission of a  crime, in a civil matter, the standard of proof is beyond reasonable doubt. Hence, section  13(1) of NRCD 323 states that: 

“13. Proof of crime (1) In a civil or criminal action, the burden of persuasion as to the commission by a party  of a crime which is directly in issue requires proof beyond a reasonable doubt.” 

Commenting on section 13(1) of the Evidence Act, the Supreme Court ruled in Aryeh and   Akakpo v. Ayaa Iddrisu [2010] SCGLR 891 that: 

“This rule emphasizes that where in a civil case crime is pleaded or alleged, the standard of  proof changes from the civil one of the balance of probabilities to the criminal one of proof  beyond reasonable doubt.” 

However, in civil cases a proponent of a fact in issue is required to establish the fact on  the preponderance of probabilities. Hence section 12 of the Evidence Act provides that: 

“12. Proof by a preponderance of the probabilities (1) Except as otherwise provided by law, the burden of persuasion requires proof by a  preponderance of the probabilities. (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind  of the tribunal of fact or the Court by which it is convinced that the existence of a fact is  more probable than its non-existence.” 

Thus, in Adwubeng v. Domfeh [1997-98] 1 GLR 282, the Supreme Court, once again,  explained the position of the law thus: 

“Section 11(2) of NRCD 323 required proof beyond reasonable doubt only on the  prosecution in criminal actions and in proof of a commission of a crime in any civil or  criminal action. And sections 11(4) and 12 of NRCD 323 clearly provided that the  standard of proof in all civil actions, without exception, was proof by a preponderance of  probabilities. Accordingly, the cases which had held that proof in title to land required proof  beyond reasonable doubt no longer represented the present state of the law.” 

It follows that even if the Commission was not expected to exact strict proof of allegations  of criminality against members of staff, once the Defendant/Appellant appeared before  the High Court and insisted, through its pleading, that the 1st Plaintiff was found guilty  of stealing, the trial Judge was entitled to exact proof of that crime beyond reasonable  doubt as required by law. We hold therefore that the learned trial Judge committed no  error in his holding that it was not proved that the 1st Plaintiff was guilty of stealing. 

At any rate the CDC being an administrative body was bound to act fairly and reasonably  in accordance with Article 23 of the Constitution, 1992 which provides that: 

“23. Administrative justice Administrative bodies and administrative officials shall act fairly and reasonably and  comply with the requirements imposed on them by law and persons aggrieved by the  exercise of such acts and decisions shall have the right to seek redress before a court or other  tribunal.” 

In our opinion, it is not right for it to be submitted that because the CDC set up by the  Defendant/Appellant was a fact-finding body, it could act any how and the courts are  disabled from questioning how it arrived at its conclusions when the searchlight was  thrown at it. Commenting on the ambit of Article 23 of the Constitution in Awuni v. West African Examinations Council [2003-2004] SCGLR 471, Sophia Akuffo JSC (as she  then was) stated, among others, at page 514 of the report that: 

“Thus, by this article, the right to administrative justice is given constitutional force, the  objective being the assurance to all persons the due observance and application of the  principles of natural justice which foster due process and the stated qualities, in the  performance of administrative activities which affect them. In my view, the scope of article  23 is such that, there is no distinction made between acts done in exercise of ordinary  administrative functions and quasi-judicial administrative functions. Where a body or  officer has an administrative function to perform, the activity must be conducted with, and  reflect the qualities of fairness, reasonableness and legal compliance. I will not venture to  give a comprehensive definition of what is fair and reasonable, since these qualities are  dictated by the circumstances in which the administrative function is performed. At the  very least however, it includes probity, transparency, objectivity, opportunity to be heard,  legal competence and absence of bias, caprice or ill-will. In particular, where, as in the  instant case, the likely outcome of an administrative activity is of a penal nature, no matter  how strong the suspicion of the commission of the offence, it is imperative that all affected  persons be given reasonable notice of the allegations against them and reasonable  opportunity to be heard, if the objective of article 23 is to be achieved.” 

In the present case, can it be reasonably said that Collins Afriyie behaved with the  required transparency when he refused to search the 1st Plaintiff before the eyes of the  workers including the security officers present at the STP yard but rather gave conflicting  statement that the 1st Plaintiff brought out a socks with concentrate and gave it to him  whiles on the same issue he told the CDC that he retrieved the said socks from the body  of the 1st Plaintiff when he DW1 spotted the lights of a security vehicle approaching? Was  there absence of bias and caprice in the conduct of Collins Afriyie? And can it be said that  the CDC in, allegedly, adopting the evidence of Collins Afriyie and recommending the  dismissal of the 1st Plaintiff, when it had previously found that there was doubt as to  whether or not the concentrate was retrieved from the 1st Plaintiff, acted with fairness  and reasonableness as is required of administrative bodies? Natural justice does not mean  the granting of opportunity to a person to talk and testify in his defence on an allegation  made against him without taking the substance of his testimony into consideration before  coming to a decision. Natural justice is not just the observance of a mathematical equation  in order just to satisfy a formula. It is about being transparently truthful to oneself and  giving meaning to legal compliance in substance and not in form.  

The learned trial Judge also found as a fact that the CDC and by extension the  Defendant/Appellant failed to comply with the provisions of the Disciplinary Code and  the Collective Agreement. The judge ruled at pages 615 to 616 of the ROA which is page  20 of the judgment that: 

“There is no proof that the Defendant Company advised the Plaintiffs to nominate a Union  Representative to assist them if they so wish. The Defendant Representative’s evidence that  there were two Union Representative on the panel does not answer the question. The Code  of Disciplinary (sic) is that the Company will in advance advise the employee who wish to  nominate a Union member to assist him to do so. The rules were formulated in such a way  that an employee facing disciplinary proceedings will not be disadvantaged. So those who  formulated the Disciplinary Code had their reasons for inserting such a provision. Then  there is the issue of the panel. The Plaintiffs’ claim was that the panel was not properly  constituted. A head of department or his representative from the employee’s department  shall be a member of the Committee… So were it the case that same was properly  constituted the Defendant upon whom the burden shifted was to prove that all the panel  members were in line with article 6.9 of the Disciplinary Code. This the Defendant failed  to do. There is also the issue of inviting mitigating factors. This was to be done by the  Chairman. The records of the proceedings did not show that this assignment was carried  out by the Chairman of the Committee … The point is that the rules in the Disciplinary  Code do not state that where the employees are facing the charges of theft of gold bearing  material or negligent conduct, the Chairman of the Disciplinary Committee shall refrain  from inviting mitigating or aggravating factors. From the totality of the lapses on the part of the Defendant Company as far as Disciplinary  proceedings are concerned my findings are that the Defendant Company did not follow the  provisions as contained in the Disciplinary Code and therefore rule this issue in favour of  the Plaintiffs.” 

These findings made by the learned trial Judge are borne out of the evidence on record and can be found from paragraph 6.0 to 6.21 of the Disciplinary Procedures and Code of  Conduct of the Defendant Company. The conduct of the Defendant Company found by  the learned trial Judge run contrary to the provision in paragraph 4.14 of the Disciplinary  Procedures and Code of Conduct of the Defendant Company found in page 227 of the  ROA to the effect that: 

“4.14 In all matters of disciplinary action meted out to employees, the Company would  take full recognition of the Collective Agreement.” 

Indeed, where the contract of employment is regulated also by a Collective Agreement  as is the case in this matter then the termination of the employment must be made in  accordance with the terms of the Collective Agreement. This is so because by section 105  (1), (2) and (4) of the Labour Act, 2003, Act 651: 

“105. Effect of collective agreement (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. (2) The provisions of a collective agreement, concerning the terms of employment and  termination of employment, and personal obligations imposed on, and rights granted to, a  worker or employer, shall be regarded as terms of a contract of employment between each  worker to whom the provisions apply and the employer. (4) The rights conferred on a worker by a collective agreement shall not be waived by the  worker and, if there is a conflict between the terms of a collective agreement and the terms  of a contract not contained in the collective agreement, the collective agreement shall  prevail unless the terms of the contract are more favourable to the worker; and it is  immaterial whether or not the contract was concluded before the collective agreement.”  

In Kobi v. Ghana Manganese Co. Ltd [2007-2008] SCGLR 771, the court per Ansah JSC  stated at page 791 of the report that: 

When the parties have provided for certain eventualities and procedures in a  collective agreement, they ought to apply fully so as to justify any action by the  parties to the agreement.

In Opare Yeboah and Others v. Barclays Bank Ghana Limited [2010-2012] 2 GLR 411,  it was again held that: 

“It was a time honoured proposition that procedures outlined in contracts of employment,  such as the CBA must be followed to give summary dismissal validity.”  

This same point was made in Abena Ackah v. Agricultural Development Bank [2017- 2018] 2 SCLRG 1. 

The law has been poignantly stated in Fofie v. Zanyo [1992] 2 GLR 475, by the apex  Court that: 

“Although an appellate tribunal in appropriate circumstances had the right to interfere  with the findings of fact of a trial court, that right was subject to the exclusive preserve of  a trial tribunal to make primary findings of fact where such findings of fact were supported  by evidence on the record and were based on the credibility of witnesses when the trial  tribunal had had the opportunity and advantage of seeing and observing their demeanour  and had become satisfied of the truthfulness of their testimonies touching on any particular  matter in issue. Where such findings could not be said to be wrong because the tribunal  had taken into account matters which were irrelevant in law, or had excluded matters  which were crucially necessary for consideration, or had come to a conclusion which no  court properly instructing itself on the law would have reached and the findings were not  inferences drawn from specific facts, it was incompetent for an appeal court to interfere.” 

Similarly, in Re Okine (Decd); Dodoo and Another v. Okine and Others [2003-2004]  SCGLR 582 the court held, among others, that:  

“An appellate court must not disturb the findings of fact made by a trial court, even if the  appellate court would have come to a different conclusion, unless the findings of fact made  by the trial Judge were wholly unsupportable by the evidence. Therefore, where the evidence  was conflicting, the decision of the trial court as to which version of the facts to accept was  to be preferred, and the appellate court might substitute its own view only in the most  glaring of cases. That was primarily because the trial Judge had the advantage of listening  to the entire evidence and watching the reactions and demeanor of the parties and their  witnesses.”  

We are satisfied that the findings of fact made by the learned trial Judge are amply and  substantially supported by the evidence on record and in line with the authorities we  have no reason to disturb the findings of fact made by the learned trial Judge. We  therefore do not find any merit in the first ground of appeal which we therefore proceed  to dismiss.

The second ground of appeal is that “the learned trial judge erred when he granted the  Plaintiffs/Respondents seven (7) years salaries each, an additional six (6) months’ salary  for the 1st Plaintiff/Respondent and twelve (12) months’ salary for the 2nd  Plaintiff/Respondent as benefits, including long service and reparation.” 

In making the award, the learned trial High Court Judge referred to the case of Nartey Tokoli and Others v. Volta Aluminium Co. Ltd (No.2) [1989-1990] 2 GLR 341 where the  Court stated, among others, that: 

“The measure of damages for wrongful dismissal from employment was not to be confined  to only loss of wages or salary but in addition the employee was to receive his entitlements  under the contract of employment. The plaintiffs were therefore entitled to receive their  salaries from the dates they ceased to receive them to the dates of their respective de facto  termination, including an additional twelve months’ salary (as awarded by the High Court  in the exercise of its discretion) as damages for wrongful dismissal as at the respective dates  of the de facto termination of their employment. As the termination of their employment  was held to be void and of no legal effect, they remained employees de jure and would  therefore, be entitled to earned leave allowances, bonus, long service awards, including food  packages and all other benefits said to be enjoyed on a so-called gentleman agreement basis;  all of which should be converted into cash if feasible as at the respective dates of the  plaintiffs’ de facto dismissal. They were also to receive their entitlement under article 40 of  the collective agreement. However, in calculating their entitlements, account should be  taken of any period within which any employee had obtained employment within the  relevant period covered by the award.” 

In awarding damages to the Respondents herein, the learned trial Judge delivered  himself as follows: 

Applying the principles laid down in the legal authorities, I award the Plaintiffs the  following compensation for wrongful dismissal: 1. The 1st and 2nd Plaintiffs are to be paid their salaries including actual increment  from the date of their dismissal which is 20th January 2012 to 31st December 2018  i.e. a period of 7 years. 2. In addition, the 1st Plaintiff is awarded 6 months’ salary as compensation to cater  for his golden handshake, reparation allowance and other bonus were he to be at  post at the current rate. 3. The 2nd Plaintiff who worked for 23 years is awarded twelve months’ salary as  compensation to cater for long service award, golden handshake and bonus and  reparation allowance at the current salary of an employee of the 2nd Plaintiff (sic)  status when he was at post. 

Counsel for the Defendant/Appellant has submitted at page 28 of her Written  Submissions that: 

“Assuming without admitting that the Respondents’ dismissal was unlawful, the trial  Judge following Agbettoh and Nartey-Tokoli only ought to have awarded the Respondents  their salaries from the date they ceased to receive salaries to the date they were dismissed,  which in this case was 20th January 2012.” 

From the ROA, the 1st Plaintiff/Respondent was dismissed from the employment of the  Defendant/Appellant with effect from Friday 20th January 2012 as shown by exhibit A  which can be found at page 51 of the ROA. Although there is no exhibit indicating the  date that the 2nd Respondent was also dismissed from the employment of the  Defendant/Appellant, a combined reading of paragraph 45 of the statement of claim and  paragraph 40 of the statement of defence shows without doubt that the 2nd Respondent  was also dismissed on the 20th January 2012. The Plaintiffs/Respondents issued the  instant writ of summons on the 13th October 2013. The judgment, subject matter of this  appeal, was delivered by the trial Court on the 19th February 2019. Clearly, the judgment  was delivered about seven (7) years and one (1) month after the dismissal of the Plaintiffs from the employment of the Defendant/Appellant. 

It seems clear from the order made by the learned trial Judge that he misunderstood and  misapplied the formula laid down by the Supreme Court in the Nartey-Tokoli v. Volta  Aluminium Company Ltd case. Hence, the trial Judge rather awarded damages to the  Respondents herein from the date of their de facto dismissal to almost the date of their  dismissal de jure; which is the date that the court pronounced judgment in favour of the  Respondents. The award made to the Respondents therefore is premised upon a misappreciation of the law as laid down in the Nartey-Tokoli case. Thus, although the  learned trial Judge in his judgment at page 620 had expressed the view that: “an employee  cannot be awarded an order for his re-instatement into a job from which he has been  removed unlawfully, unless there is a public law element which requires otherwise”, the  Judge ended up awarding damages to the Respondents as if they were public servants  whose employment was regulated by public law. The award made by the learned trial  Judge therefore sinned against the advice of the court in Ghana Cocoa Marketing Board v. Agbettoh and Others [1984-1986] 1 GLR 122 where Apaloo CJ stated at page 131 that: 

“To affirm today an order which secures them bungalows which they only had when they  were in the actual service of the board or to order that salaries be paid to them for those  years when they did not work for the board, albeit through no fault of their own, would be  to set our face against realities. The reality of the situation is that although de jure they are  still technically in the service of the board, de facto they have ceased to be so since  November, 1979.” 

Similarly, in the instant matter, the Respondents, in fact were dismissed from the  employment of the Defendant/Appellant company on the Friday 20th January 2012 and  so from Friday 20th January 2012 to the 31st December 2018 in respect of which the trial  Judge made an order that the Respondents shall be paid “their salaries including actual  increment”, the Respondents had in fact not worked for the Appellant company and for  that matter the order failed to take into account the reality of the situation. The order  meant that the Respondents are to be paid for no work done. The order made by the  learned trial Judge has the effect of foistering the services of the Plaintiffs/Respondents  upon the Defendant/Appellant as though it was a contract of servitude or as if the  Respondents were of public servant status whose employment was regulated by statute. The position of the law with regards to contract of employment was explained in Kobea  and Others v. Tema Oil Refinery; Akomea-Boateng and Others v. Tema Oil Refinery  (Consolidated) [2003-2004] SCGLR 1033 where it was held that: 

“At common law, an employer and his employee are free and equal parties to the contract  of employment. Hence, either party has the right to bring the contract to an end in  accordance with its terms. Thus, an employer is legally entitled to terminate an employee’s  contract of employment whenever he wishes and for whatever reasons, provided only that  he gives due notice to the employee or pay him his wages in lieu of the notice. He does not  even have to reveal his reasons much less to justify the termination.” 

And, in Kojo Hodare Okai v. Attorney General and 2 Others [2003-2005] 2 GLR 22, the  court held that: 

“The remedy of re-instatement is merely another name for the specific performance of a  contract of employment of whose breach the Plaintiff herein is complaining. In Cheshire  and Fifoot at page 608 it was said: ‘Since it is undesirable and indeed in most cases impossible to compel an unwilling party  to maintain continuous personal relations with another, it is well established that a contract for personal services is not specifically enforceable at the suit of either party’ …Simply put, the rule of mutuality in contract performance or enforcement is that both  parties must have equal right or chance to enforce it against the other. If only one person  has the right or chance to enforce, then there is the absence of mutuality. It is this orthodox  position that is usually touted by offending employers that since an unwilling employee  cannot be forced into the employ of an employer, then it will be unfair to insist on an  employer working with a particular employee. To this school of thought, therefore, the  remedy for wrongful dismissal, if so found, is not an order for re-instatement that will be  specific performance but rather damages.”  

As regard public officers, the court held at page 35 of the report that: 

“The cumulative effect of articles 191 and 199 of the Constitution, 1992 is that unlike an  ordinary employee’s contract of employment, a public officer has a security of tenure and  is insulated from arbitrary dismissal or reduction in rank at the whims and caprice of any  body except for just cause. And where any individual or the State seeks to dismiss any  public official without just cause, any citizen or for that matter the court, pursuant to  article 3(4)(a) of the Constitution, 1992 can step in to stop this unconstitutional act.” 

In Quayson v. Attorney General [1981] GLR 295, the court pointed out at page 299 of  the report that: 

“It would be discriminatory to refuse to restore a public officer to his former post if the  recommendation of the commission of inquiry that led to his forced removal was set aside  as being wrong in law. It was also precisely against such unjust dismissal or removal like  that of the appellant from office that article 155 (b) of the Constitution, 1979, provided that  “No member of the public services shall be dismissed or removed from office or reduced in  rank or otherwise punished without just cause.” That provision would be meaningless if a  public officer could not be restored to his former post where the court found that his removal  was unjust and capricious. The court would therefore order reinstatement of the appellant  to his former post.” 

Counsel for the Defendant/Appellant submitted and, in our view, correctly that “it is  only in cases where the employer is a State agency that the court can award a wrongfully  dismissed employee his ‘lost salary’. And we wish to add that the reason is because the  employee working with the agency of the State has a constitutional right to be re-instated  after it has been proved that his dismissal was unlawful or was wrongful. 

In the instant matter, as already stated, the Defendant/Appellant is a private company  and not an agency of the State and for that reason the Plaintiffs/Respondents’ terms of  employment is purely regulated by the common law and the Collective Agreement which  does not make room for re-instatement and that being so, it will be wrong for damages  to be awarded them as if they have a right to be re-instated, after a finding that their  dismissal was wrong. The learned Judge therefore erred in awarding damages for them “to be paid their salaries including actual increment from the date of their dismissal  which is 20th January 2012 to 31st December 2018 i.e. a period of 7 years.” It was also  wrong for the trial Judge to make an order that: “In addition, the 1st Plaintiff is awarded  6 months’ salary as compensation to cater for his golden handshake, reparation allowance  and other bonus were he to be at post at the current rate” and that “the 2nd Plaintiff who  worked for 23 years is awarded twelve months’ salary as compensation to cater for long  service award, golden handshake and bonus and reparation allowance at the current  salary of an employee of the 2nd Plaintiff (sic) status when he was at post.” 

As stated in the Nartey-Tokoli and Others v. Volta Aluminium Co. Ltd (No.2) (supra),  “the measure of damages for wrongful dismissal from employment was not to be  confined to only loss of wages or salary but in addition the employee was to receive his  entitlements under the contract of employment. The plaintiffs were therefore entitled to  receive their salaries from the dates they ceased to receive them to the dates of their  respective de facto termination, including an additional twelve months’ salary (as  awarded by the High Court in the exercise of its discretion) as damages for wrongful  dismissal as at the respective dates of the de facto termination of their employment” 

Applying the above principle to the facts of the instant matter, if there is evidence that  the Plaintiffs/Respondents, as a result of the incident, were not paid their respective  salaries from the date of the incident which is 26th February 2011 to the date of their  respective de facto termination or dismissal which is the 20th January 2012, then, they are  entitled to be paid their salaries for that period.  

In the Nartey-Tokoli case, the parties were awarded an additional twelve months’ salary  as damages for wrongful dismissal as at the date they were factually dismissed, which in  this case will be the 20th January 2012. There is evidence on record as shown by their  Payroll, exhibits 21 series, found at page 392 to page 414, in addition to admission made  by the 1st Plaintiff/Respondent at page 448 during cross examination, to the effect that  right from the date of their interdiction, that is, the 26th February 2011 to the date that  they were actually dismissed, that is, the 20th January 2012, the Defendant/Appellant  paid the salaries of the Respondents to them. It implies therefore that; the Respondents  cannot be paid a second tranche of salaries for the period stated.  

In assessing damages for unlawful dismissal one factor that ought to be taken into  consideration is the need for the dismissed employee to mitigate his losses and this is  assessed by considering the efforts made by the employee at securing an alternative  employment. Thus, in Klah v. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, it was  held that: 

“Where an employer has wrongly dismissed an employee, the measure of damages would  be calculated largely, on the basis of the applicable principle, namely, to place the injured  party, as far as money could do so, in the position he would have been but for the breach.  Over the years, the courts had enhanced the awards beyond the notice period under the  contract. However, generally, the employee would be entitled to such damages as would  have been suffered by a party acting reasonably after the breach. Therefore, in the case of  an employee wrongfully dismissed, he was required to make a reasonable effort to secure a  comparative job”. 

Further, we find that the award made by the trial Judge for the Respondents to be paid  salaries for some months as damages for “golden handshake, reparation allowance and  other bonuses” is not borne out of the evidence on record for the reason that the  Respondents are not qualified, under the Collective Agreement as shown at page 220 of  the record, to receive such awards. For instance, under paragraph 19.03 which provides  for long service award, it is to be given to ‘deserving employees annually to recognise  outstanding performance, safety and other meritorious achievements.’ Thus, it is not  automatic that an employee who has served for a certain number of years will be given  that award. Long service award is made or given at the discretion of the Defendant  company. Under paragraph 19.10 ‘(a) an employee shall be paid a parting handshake in  recognition of long service (b) to qualify for a handshake, an employee must be leaving  the company on any one of the following: (i) retirement on superannuation, (ii) mine  closure for ore depletion, (iii) retirement on medical grounds and (iv)  redundancy/severance. 

For all the reasons stated above, we hold that the Defendant/Appellant succeeds on the  second ground of appeal. We hold further that, the awards made by the learned trial  Judge have no basis in law and we therefore proceed to set the awards aside and  substitute in their place an order that the Respondents shall be paid, as damages for  unlawful dismissal, their salaries for a period of one (1) year within which, in our opinion,  they should have been able to find alternative employment for themselves. 

The third and final ground of appeal is that: “the learned trial judge erred in awarding  costs of GH₵8,000 to each of the Plaintiffs.” On this ground, the Defendant/Appellant  submitted at page 37 of their Written Submissions that the dismissal of the Respondents  from the employment of the Appellant was not unlawful and for that matter they are not  entitled to the award of costs. Given our view that the dismissal was unlawful, this  ground of appeal immediately collapses.  

Costs, it is said, follows the event. That is, a successful party is entitled to his costs unless  the court has strong reasons, which ought to be indicated on the record, for denying costs  to the successful party.

Order 74 of the High Court (Civil Procedure) Rules, 2004, CI 47 has provided a number  of factors to be taken into consideration by trial Judges in awarding costs. Sub-rules 3 and  4 of rule 2 of Order 74 provides that: 

“(3) Without prejudice to the powers and discretion of the Court, an award of costs shall  ordinarily be designed to:(a) compensate for expenses reasonably incurred and court fees  paid by the party in whose favour the award is made; and(b) provide reasonable  remuneration for the lawyer of that party in respect of work done by the lawyer. (4) In assessing the amount of costs to be awarded to any party, the Court may have regard  to:(a) the amount of expenses, including travel expenses, reasonably incurred by that party  or that party’s lawyer or both in relation to the proceedings;(b) the amount of court fees  paid by that party or that party’s lawyer in relation to the proceedings;(c) the length and  complexity of the proceedings;(d) the conduct of the parties and their lawyers during the  proceedings; and(e) any previous order as to costs made in the proceedings.” 

See Juxon-Smith v. KLM Royal Dutch Airline [2005-2006] SCGLR 438. 

At the end of it all cost is said to be at the discretion of the Judge. That is, how much costs,  a trial Judge should award, is purely at the discretion of the trial Judge taking into  consideration the factors enumerated in Order 74. Hence, an appeal against the award of  costs by a trial Judge is an appeal against the exercise of discretion by the trial Judge. It  has been held in the English case of Blunt v. Blunt [1943] AC 517 at 518, HL that: 

“An appeal against the exercise of the court’s discretion may succeed on the ground that  the discretion was exercised on wrong or inadequate materials if it can be shown that the  court acted under a misapprehension of fact in that it either gave weight to irrelevant or  unproved matters or omitted to take relevant matters into account, but the appeal is not  from the discretion of the court to the discretion of the appellate tribunal.” 

The Supreme Court has held in Crentsil v. Crentsil [1962] 2 GLR 171 at 175 that: 

“As to appeals from the exercise of the court’s discretion, it is a rule of law deep rooted and  well established that the Court of Appeal will not interfere with the exercise of the court’s  discretion save in exceptional circumstances.” 

And in Poku v. Frimpong [1972] 1 GLR 230 at 241, CA it was also held that: 

“The award of costs in any proceedings in the High Court is in the discretion of the court  or Judge, and where this is done judicially, its exercise will not be interfered with by an  appellate court . . . this court. . . will only review the discretion, if it is exercised on material  that is illegitimate, or violates some principle of substantive right. The onus is on the  applicant to show that the discretion had been wrongly exercised. . .”

In our candid opinion, given the fact that the suit was commenced on the 13th October  2015, lasting for a period of well over three (3) years and taking into account the fact that  the Plaintiffs/Respondents engaged the services of counsel to prosecute the matter, the  award of GH₵8,000.00 as costs to the Plaintiffs/Respondents is neither harsh nor  excessive taking into consideration the factors enumerated under Order 74 of the rules of  the High Court (Civil Procedure) Rules, 2004, CI.47. It follows therefore that we find no  merit in this ground of appeal also which is therefore dismissed. 

In conclusion, we state that the appeal succeeds in part only in respect of the variation  which we have made in the damages awarded by the trial Judge. 

 (SGD)

SAMUEL K. A. ASIEDU 

 (JUSTICE OF APPEAL) 

DOMAKYAAREH (MRS), J.A.

I agree

(SGD) 

ANGELINA M. DOMAKYAAREH (MRS)

(JUSTICE OF APPEAL) 

POKU-ACHEAMPONG, J.A.

I also agree

(SGD)

A.B. POKU-ACHEAMPONG

(JUSTICE OF APPEAL)

COUNSEL

DAAD AKWASI FOR THE DEFENDANT/APPELLANT.

NANA YAW OSEI FOR THE PLAINTIFFS/RESPONDENTS.