NANA AGYENIM BOATENG V. PRODUCE BUYING COMPANY LTD, THE MANAGING DIRECTOR (PBC), THE SOLICITOR SECRETARY (PBC) AND THE HUMAN RESOURCE MANAGER (PBC)

JUDGMENT

ASUMAN-ADU, J.

The Defendants wrote to the Plaintiff on 8th day of October, 2008, informing him that he should prepare himself for compulsory retirement from the service of the Produce Buying Company Limited with effect from the 9th day of October, 2009 when he would be deemed to have reached the age of sixty (60) years. The Plaintiff realizing that he had not reached the compulsory retirement age of sixty (60) years instituted the current action against the Defendants on 30th September, 2009 for the following reliefs:-

i. An order compelling the Defendants to withdraw the letter ordering the Plaintiff to proceed on compulsory retirement.

ii. An order compelling the Defendants to reinstate the Plaintiff until he attains compulsory retirement age of 60 years.

iii. An order for the Defendants to restore all salaries and benefits due the Plaintiff until he attains the compulsory retirement age of 60 years.

iv. General damages for the suffering and distress caused the Plaintiff by the actions of the Defendants.

v. Costs of this suit including legal fees.

The Defendants entered appearance on 5th October, 2009 and went on to file a joint statement of defence on 28th October, 2009 in which they denied the Plaintiff’s claim.

On 19th January, 2010 the Plaintiff filed a motion to amend the title of the suit by including Produce Buying Company Ltd. as first Defendant which was granted on 11th February, 2009 and the Plaintiff given seven days from that date to amend the title of the suit but the Plaintiff did not file the amended writ pursuant to the order of the Court. In spite of this subsequent processes filed by the parties had the Produce Buying Company Limited as 1st Defendant. It is as a result deemed that even though the amended writ was not filed, the title of the suit had been amended to include Produce Buying Company Limited as 1st Defendant.

The Plaintiff filed an application for directions on 24th February, 2010 but the Defendants did not file additional issues so on 3rd March, 2010 all the issues listed in the application for directions were set down for trial by this Court. The issues set down for trial were as follows:-

i. Whether or not the Plaintiff gave conflicting dates as his date of birth.

ii. Whether or not the Plaintiff wrote to the Defendants explaining the circumstances surrounding the conflicting dates;

iii. Whether or not the Plaintiff provided documentary proof of his real date of birth.

iv. Whether or not the Plaintiff submitted a Statutory Declaration in support of his real date of birth to the Defendants.

v. Whether or not a statutory declaration is a binding legal document.

vi. Whether or not the Defendant ignored the Statutory Declaration which is a legal document, submitted by the Plaintiff and went ahead to request the Plaintiff to proceed on retirement even though Plaintiff had not attained the statutory legal age of sixty (60) years.

vii. Whether or not the Defendants can forcefully retire the Plaintiff in these circumstances.

viii. Whether or not the Plaintiff is entitled to the endorsements on his writ of summons and statement of claim.

ix. Any other issues arising from the pleadings.

The case for the Plaintiff which was presented by the Plaintiff himself is that he was in the employment of the first Defendant company which is a limited liability company and the other Defendants were all officers of the first Defendant company. In or about 4th August, 2009 a letter was written to him by the Defendants that he should proceed on compulsory retirement on 9th October, 2009. He tendered the letter in evidence as Exhibit A. The Plaintiff, however, told the Defendants that he was not yet 60 years and that as at that time he was 55 years. He claims his employers based on his SSNIT records to conclude that he was sixty years old in the sense that the records showed that he was born on 9th October, 1949. According to him the said date of birth was not correct. He says at the time he applied to work with the Geological Survey Department, he did not know his date of birth since his parents had died. It was rather his illiterate grandmother with whom he was living who gave his date of birth as 9th October, 1949.

The Plaintiff claims that later while looking for something from his late mother’s documents he found his baptismal cirtificate which showed that he was born on 10th September, 1954. He says he swore to a Statutory Declaration confirming his actual date of birth and informed the Defendants accordingly. The Plaintiff tendered in evidence the Statutory Declaration as Exhibit B. The Plaintiff went on to tender in evidence a copy of the baptismal certificate in evidence as Exhibit C. The Plaintiff sent copies of the Statutory Declaration and the baptismal certificate to the Defendants and asked them to amend their records to reflect his actual date of birth but still they insisted he should go on compulsory retirement.

The Plaintiff is aggrieved and scandalized by the actions of the Defendants because:

a. That by 9th October, 2009 he would be only 55 years old;

b. That by the constitution of this country the compulsory retirement age is 60 years and not 55 years;

c. That the Defendants are in breach of the constitution and in violation of the human rights of the Plaintiff by compelling him to proceed on compulsory retirement ahead of him attaining the age of 60 years.

The Defendants are by their actions showing gross disregard for the very life of the Plaintiff and are in effect pushing him towards an early death. It does not lie in the power of the Defendants to change the constitutionally mandated retirement age in the country.

The Plaintiff concludes his averment by contending that if the Defendants are not stopped from the flagrant abuse of the Plaintiff’s rights, they would create a dangerous precedent which would affect the industrial harmony prevailing in the country.

One David Rockson Ansah, a catechist of the Evangelical Presbyterian Church of Nsuta-Buem in the Volta Region gave evidence on behalf of the Plaintiff as PW1. He confirmed that Exhibit C was issued by the Presbyterian Evangelical Church which is now known as Evangelical Presbyterian Church. He went on to explain the circumstances under which Presbyterian Evangelical Church was changed to Evangelical Presbyterian Church.

The case for the Defendants is that the Plaintiff had given three various dates as his date of birth to the 1st Defendant company at different times. These were 10th September, 1960, 10th September, 1962 and 10th September 1954. They also realized from his application letter which was written on 3rd January, 1996 that he gave his age as 34 years at that time. He also stated that he completed middle school in 1976 and he obtained his professional driving license in 1977 which shows that at the time he obtained his driving license he was a minor. Further checks by the Defendants revealed that when the Plaintiff was being interviewed he gave his date of birth as 10th September 1960.These different dates of birth given by the Plaintiff prompted Defendants to check on Plaintiff’s date of birth on his SSNIT records where they found a fourth date of birth which was 9th October, 1949. On the basis of the date on the SSNIT records, the Defendants notified the Plaintiff that he was due for retirement

The Defendants per one Ernest Yaw Asare, the Human Resource Manager of the 1st Defendant company tendered in evidence the application letter written by the Plaintiff to the first Defendant company as Exhibit 1 and the interview appraisal forms of the Plaintiff as Exhibit 2. On the interview appraisal form the Plaintiff gave his date of birth as 10th September 1960 and at that time he gave his age as 35 years. Also tendered in evidence as Exhibit 3, was the employee record card of the Plaintiff which gives the date of birth of the Plaintiff as 10th September, 1962. The witness went on to tender in evidence the SSNIT record of the Plaintiff as Exhibit 4. The Plaintiff’s date of birth on it is stated as 10th September, 1949. According to the Defendants by this record the Plaintiff was 60 years on 10th September, 2009. They were, therefore, right in asking him to proceed on compulsory retirement on that day. The Defendants also tendered in evidence extracts of his birth certificate as Exhibit 5. They claim that Exhibit 5 contains information different from the one on Exhibit C, the baptismal certificate. By Exhibit 5, the Plaintiff was born at H/No. VE 83 Vakpo in the Volta Region while Exhibit C gives his place of birth as Nsuta. Also Exhibit 5 gives Plaintiff’s name as Nana Agyenim Boateng while Exhibit C gives it as Felix Kofi Boateng. Meanwhile, Plaintiff has submitted no evidence of change of name. Defendants, therefore, concludes that the Plaintiff is not entitled to his claim.

From the pleadings before the Court the main issues for determination in this case will be grouped as follows:-

a. Whether or not the Defendants were right in adopting the date of birth stated on Plaintiff’s SSNIT records as his actual date of birth in the face of conflicting dates of birth submitted to the Defendant by the Plaintiff.

b. Whether or not the Plaintiff is entitled to his claim.

From the evidence before the Court, the fact that the Plaintiff gave his age as 34 years at the time he was applying to the 1st Defendant company for employment is not in doubt. This is stated in Exhibit 1, his application letter for employment. The said letter was written on 3rd January, 1996. If the Plaintiff was 34 years at that time then it implies that he was born in 1962. The letter goes on to show that he completed the then middle school in the year 1976. This shows that by calculation if he was born in 1962, then he was 14 years old when he completed middle school. He states in the letter that he obtained his professional driving license in the year 1976, a year after he had completed middle school which implies that at that time he was 15 years old. This shows that by the calculation in the letter he was a minor at the time he obtained his professional driving license. Exhibit 3, his employment record confirms that he was born in 1962. It gives his date of birth as 10th September, 1962. Meanwhile, Exhibit 2, the interview appraisal forms of the Plaintiff gave his date of birth as 10th September, 1960. According to the witness for the Defendants this date of birth was provided by the Plaintiff himself. So from the evidence as given by the Defendants there were question marks on Plaintiff’s dates of birth submitted to his employers. The Defendants were, therefore, right when they decided to check from his SSNIT records to ascertain his actual date of birth.

From Exhibit 4, Plaintiff’s SSNIT record, the date of birth of the Plaintiff was given as 10th September, 1949. So from the evidence before the Court there is no doubt that there were conflicting dates of birth on Plaintiff’s official record. These were, 10th September, 1960, 1962 and 1949. The Defendants, therefore, adopted the date of birth provided on his SSNIT records and wrote to the Plaintiff in 2008 that he was due for retirement on 10th September, 2009 so he should prepare himself for retirement on that day. On receipt of that letter, the Plaintiff claims in going through his late mother’s documents, he saw his baptismal certificate which shows that his date of birth was 10th September, 1954 and that at the time the Defendants wrote to him asking him to prepare himself for retirement he was 55 years old. He as a result swore to a statutory declaration confirming his date of birth as 10th September, 1954 and denouncing the other dates of birth provided by him. Until the Defendants got the date of birth on Plaintiff’s SSNIT records the dates of birth provided by the Plaintiff to them were 10th September 1960 and 10th September, 1962. None of those dates shows that he was due for compulsory retirement. So when Defendants obtained another conflicting date of birth which shows that the Plaintiff was due for retirement, they should have given him the opportunity to explain why he had conflicting dates of birth but not to unilaterally adopt the date on his SSNIT records. The evidence before the Court does not show the basis for Defendants adopting the 10th September, 1949 as Plaintiff’s date of birth except that it was from his SSNIT record. Just like the others being a mistake that could also be a mistake. There is, therefore, no basis for Defendants adopting the date of birth stated on Plaintiff’s SSNIT record as his date of birth. This explains why he should have been given the opportunity to explain himself.

It is trite law and a cardinal principle of justice that no man shall be condemned unless he has been given prior notice of the allegation against him and a fair opportunity to be heard. See Halsbury’s Laws of England 4th Edition Vol. 1 pg 76. It is also a settled law that in taking decisions affecting employees, employers are under a duty to act fairly and comply with the rules of natural justice. That is in the current case the Defendants were under a duty to give the Plaintiff a proper opportunity of making out his case on his date of birth when they observed that he had conflicting dates of birth on his official records. See the case of the Republic v. Ghana Railway Corporation; Ex-parte Appiah and Anor. [1981] GLR 753 in which Twumasi J (as he then was) held that the core idea implicit in the natural justice principle of audi alteram partem was simply that a party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his statement in explanation of any question or to answer any arguments put forward against it.

In the case of Awuni v. West African Examinations Council [2003 – 2004] SCGLR 471, the Supreme Court was confronted with a similar submission, albeit in a converse form. The WAEC had cancelled the results of some candidates without giving them a hearing, based on their internal investigations. It was argued on their behalf that WAEC did not have to give them a hearing. The Supreme Court was not enthused about this submission at all and said so in no uncertain terms.

The brief facts of this case were that the entire results of 13 students were cancelled and a 3-year ban imposed on them. Their offence was that;

1. All thirteen candidates had been involved in some examination malpractices or irregularities in Core Mathematics Paper and

2. Judging from a scrutiny of the answer scripts of the candidates, the council had concluded that the candidates had foreknowledge of the questions and had colluded among themselves in solving the questions.

The petitions by their headmaster and their solicitor were ignored. So they brought an action at the High Court. They denied the collusion charge against them and said their not being asked to make representation infringed their fundamental human rights and that the council failed to act fairly and reasonably as required by Article 23 of the Constitution.

It was argued on behalf of the council that the evidence in the scripts was so manifest that by its rules it was unnecessary for the council to invite the appellants to make any representation and that “the cancellation of examination result on good grounds does not constitute an infringement of human rights”.

The High Court upheld their claim, the Court of Appeal reversed it and they appealed to the Supreme Court. The Supreme Court held in holding 1 as follows:-

“By failing to observe the rules of natural justice, i.e. the AUDI ALTERAM PATEM rule, the respondent council had contravened the appellants right to administrative justice under Article 23 of the 1992 Constitution. Furthermore, the process by which the council sought to establish the allegations made against the appellants was neither fair nor reasonable and therefore made in contravention of Article 23 ...”

Kpegah J.S.C. in his opinion said at page 489 that:

“The phrase to act fairly and reasonably in my opinion necessarily imports a duty to observe the common law maxim of AUDI ALTERAM PARTEM and other principles of natural justice which is very much part of our jurisprudence and are implicit in the constitutional provisions in Article 23. Because I cannot contemplate how a person could be said to have acted fairly and reasonably if he did not give either notice or hearing to another who was entitled to such notice or hearing before taking a decision which adversely affects his rights; neither can I contemplate a situation where a person could be said to have acted fairly and reasonably if he acted as a judge in his own cause, or gave a biased and pervasive decision!”

On her part Her Ladyship Justice Sophia Akuffo said at pg. 514 that:

“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...At the very least, however, it includes probity, objectivity, opportunity to be heard, legal competence and absence of bias caprice or ill-will. In particular, where as in this 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 opportunity to be heard, if the objective of article 23 is to be achieved”.

From the authorities referred to administrative bodies and officials are required to give a fair hearing to their staff before taking decisions affecting them. That is the basic rules of natural justice must always be observed.

In the current case as has been stated in the judgment, the Defendants observed that the Plaintiff had giving conflicting dates of birth so they went to check the date of birth of the Plaintiff on his SSNIT records. They realized that his date of birth was 10th September, 1949. Without giving the Plaintiff the opportunity to explain the conflicting dates of birth they unilaterally adopted the date of birth on his SSNIT records as a result of which they asked him to proceed on compulsory retirement.

The evidence goes on to show that before attaining the said compulsory retirement age as per the date of birth on his SSNIT record the Plaintiff obtained his baptismal certificate which gives his date of birth as 10th September, 1954. This implies that he has not yet reached the retirement age. He, therefore, swore to a statutory declaration confirming that date of birth as his date of birth and denouncing all other dates of birth. He submitted both documents to the Defendants but they ignored them and still adopted the date of birth on the SSNIT records so they insisted he has reached compulsory retirement age so he should proceed on compulsory retirement. At the trial the catechist at Nsuta Buem where the Plaintiff was baptized gave evidence confirming the authenticity of Exhibit C, the baptismal certificate.

In my opinion since by the dates provided to the Defendants by the Plaintiff he has not attained compulsory retirement age it was wrong for the Defendants to adopt the date of birth on the SSNIT records without giving the Plaintiff the opportunity to explain the conflicting dates of birth provided by him. According to the Plaintiff those conflicting dates of birth were given to him by his illiterate grandparents. There is, therefore no documentary proof in support of those dates of birth. In the case of that of 10th September 1954, there is documentary proof in support of it. Even though the Defendants attempted to discredit it they could not succeed. The evidence given on it clearly shows that the baptismal certificate is authentic.

The case of Agyei Osae and Others v. Adjeifio and Others [2007-2008] 1 SCGLR 499 makes it clear that where there is authentic documentary evidence it is more reliable than conflicting evidence. It states in holding 1 as follows:-

“Whenever there was in existence a written document and conflicting oral evidence, the practice of the Court was to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence was conflicting”.

So from the evidence before the Court since the 10th September 1954 has a documentary proof which is Exhibit C the Court considers that date of birth as being more authentic than the other dates of birth which have no documentary proof. It is, therefore, my opinion that the date of birth of the Plaintiff is 10th September, 1954 so as at 10th September, 2009 when the Plaintiff was asked to proceed on compulsory retirement by the Defendants he was 55 years old and not 60 years. It was, therefore, wrong for the Defendants to adopt 10th September, 1949 as Plaintiff’s date of birth, as a result of which he was asked to proceed on compulsory retirement on 10th September, 2009. The decision of the Defendants to retire the Plaintiff when he has not attained the compulsory retirement age, therefore, has no legal effect and I so hold.

The next issue for consideration is whether or not the Plaintiff is entitled to his claim.

As has been stated elsewhere in this judgment the Plaintiff had the following reliefs on his writ of summons:-

1. An order compelling the Defendants to withdraw the letter ordering the Plaintiff to proceed on compulsory retirement.

2. An order compelling the Defendants to reinstate the Plaintiff until he attains the compulsory retirement age of 60 years.

3. An order for the Defendants to restore all salaries and benefits due the Plaintiff until he attains the compulsory retirement age of 60 years.

4. General damages for the suffering and distress caused the Plaintiff by the actions of the Defendants.

5. Cost of this suit including legal fees.

On the issue as to whether or not the Plaintiff is entitled to his claim, since it has been held by this Court that the Plaintiff has not attained compulsory retirement age and that it was wrong for the Defendants to compel him to proceed on compulsory retirement on 10th September, 2009 the Plaintiff is entitled to his first relief. It is, therefore, ordered that the Defendants should withdraw the letter ordering the Plaintiff to proceed on compulsory retirement forthwith. Consequently, the Defendants are ordered to restore all salaries and benefits due the Plaintiff until he attains the compulsory retirement age of 60 years.

On general damages for the suffering and distress caused the Plaintiff by the actions of the Defendants I refer to the case of Yungdong Industries Ltd v. Roro Services (2005-2006) SCGLR 816 at 839 in which it was held that:-

“Generally, damages in tort are awarded by way of monetary compensation for a loss or losses which a Plaintiff has actually sustained, and the measure of damages awarded on this basis may vary infinitely according to the individual circumstances of any particular case. It is for a Plaintiff to prove what loss, if any, it has suffered by reason of a tort, and when, ... the effect of the tort is potentially adverse interference with the course of its business operations, it is for it to establish by evidence that there was, in fact, such adverse interference and that it suffered a properly quantifiable loss by reason of it.”

It was also held in the case of Delmas Agency Ghana Ltd v. Food Distributors International Ltd (2007-2008) SCGLR 748 that where the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not he is not entitled to anything.

In the current case, even though the Plaintiff pleaded general damages on his writ of summons he never led evidence on it to prove the nature and the extent of damages suffered by him. This Court, therefore, has no basis to assess damages suffered by him. More so, the Plaintiff created his own problem by giving conflicting dates of birth to the Defendants. He cannot, therefore, benefit from his own mistake. The Defendant is as a result not entitled to be awarded general damages so that relief is dismissed.

In conclusion, Judgment is entered for the Plaintiff as follows:-

a. That the Defendants are ordered to withdraw the letter ordering the Plaintiff to proceed on compulsory retirement forthwith.

b. That the Defendants are ordered to reinstate the Plaintiff forthwith until he attains the compulsory retirement age of 60 years.

c. That the Defendants are ordered to restore all salaries and benefits due the Plaintiff forthwith until he attains the compulsory retirement age of 60 years.

Plaintiff costs are assessed as GH¢3,000.00.

SGD

KWABENA ASUMAN-ADU J

JUSTICE OF THE HIGH COURT

COUNSEL

MR. SETH MENSAH DUMOGAH FOR THE PLAINTIFF

MR. G. O. AGGREY FOR THE DEFENDANTS.