MUSAH ABDULAI & 21 ORS V. ASHANTI GOLDFIELDS COMPANY LTD. OBUASI

DOMAKYAAREH (MRS), J.A.

1. An employer/employee relationship went sour and this has culminated in this appeal before this court. The appeal is against the judgment of the High Court, Kumasi entered against the defendant/respondent herein dated 7th July 2014.

BACKGROUND AND FACTS OF THE CASE:

The Plaintiffs/Appellants Case:

The plaintiffs/appellants, twenty-two(22) in number averred that they were former employees of the Defendant/Respondent Gold Mining Company at Obuasi. They said:

· they were employed as underground workers sometime in April 1995.

· that on 15th December 1997, the defendant/respondent addressed letters to them to the effect that they were in casual employment for three months and that their appointments would be terminated on 24th December, 1997 and accordingly terminated their appointments on the said date.

· that contrary to the letter claiming that they had worked for three months they had actually worked for the defendant/respondent company for three years and eight months.

· That their appointments were terminated without any formal notice to that effect or any payment in lieu thereof.

2. The plaintiffs/appellants further averred that per a letter dated 20th December, 1997, they were offered three months casual employment with effect from 29thDecember 1997 as general Labourers; that on 28th March 1998, the defendant/respondent addressed letters to them terminating their appointments on 31stMarch 1998 without any payment of their entitlements even though their appointments had assumed the character of permanent workers. The plaintiffs/appellants therefore instituted an action against the defendant/respondent company on 3rd August, 1998 initially claiming five reliefs. By an amended Writ of Summons and Statement of Claim filed on 17th July 2000, the plaintiffs/appellants claimed the following reliefs namely;

1. A Declaration that the termination of the plaintiffs contract of employment with the defendant was inconsistent wit and or in contravention of the parties’ Collective bargaining Agreement.

2. General damages for wrongful termination of the plaintiff’ contract of employment by the defendant.

3. That the plaintiffs are entitled to the payment of repatriation benefits of themselves, their wives and children following their termination by the defendant.

4. The plaintiffs are entitled to their leave benefits covering their period of employment with the defendant

5. The plaintiffs are entitled to Christmas bonus covering their period of employment with the defendant.

6. That the plaintiffs are entitled to the payment of compensation after their dismissals.

7. That the plaintiffs are entitled to the payment of back pay covering the period of their employment with the defendant.

3. The Defendant/Respondent’s Case:

The Defendant/Respondent on its part averred that the plaintiffs/appellantswere engaged as temporary workers of another company called Mining and Building Construction Ltd (MBC) which was a subcontractor to the defendant/respondent company; that the plaintiffs at all material times knew their employment status, accepted same, and knew from the onset at the Labour Office where they were recruited that as temporary workers of MBC, their engagement or other use depended on the availability of work to be done on the Mines of the defendant company. In short, the defendant denied that the plaintiffs were employees of the defendant company and in any event, that the termination of their employment did not breach any provisions of the Labour Law.

The case went through a full trial and the Learned Trial Judge gave judgment in favour of the plaintiffs on 7th July, 2014. The plaintiffs/appellants however launched the instant appeal against the said judgment in their favour as they were aggrieved and dissatisfied with aspects of the judgment.

4. Per the Notice of Appeal filed on 9th July 2014 two initial grounds of appeal were filed namely that:

1. The award of six months’ salary as at 1997 as general damages for the wrongful termination of the plaintiffs/appellants contract of service/employment with the respondent was highly insignificant and extremely low and unreasonable considering the rate of inflation and the value of the cedi as at 1997/98 when the appellants were in the respondent’s employment then.

2. The trial High Court Judge erred when he failed to award interest on the one month salary in lieu of notice.

Four additional grounds of appeal were filed on 22nd October 2015 by the plaintiffs/appellants pursuant to leave granted on 19th October 2015, bringing the total grounds of appeal to six in number. The additional grounds were that:

3. The trial court judge ought to have awarded the plaintiffs/appellants salary arrears at the current level and rate from the date of termination till the date of final judgment having come into conclusion that the plaintiff/appellants employment was wrongfully terminated.

4. The trial court judge ought to have awarded plaintiffs/appellants the payment of repatriation benefits of themselves, their wives and children following their termination by the defendant having come to the conclusion that their termination was wrongful and therefore ought to have granted relief (3) as endorsed on the Writ of Summons and Statement of Claim.

5. The trial court judge ought to have awarded plaintiffs/appellants leave benefits covering their period of employment with the defendant/respondent having come to the conclusion that their termination was wrongful and therefore ought to have been granted relief (4) as endorsed on the Writ of Summons and Statement of Claim.

6. The trial court judge ought to have awarded plaintiffs/appellants their charismas bonus covering their period of employment with the defendant/respondent having come to the conclusion that the plaintiffs/appellants termination was wrongful and therefore ought to have been granted relief (5) as endorsed on the Writ of Summons and Statement of Claim.

5. Rule 8(1) of the Court of Appeal Rules, 1997 (C.I. 19) provides the legislative basis for appeals to be by way of re-hearing. The said Rule 8(1) provides as follows:

8. Notice and grounds of appeal

(i) Any appeal to the court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as “the notice of appeal”

Once the notice of appeal has been properly filed as in the instant case, this court is therefore seized with jurisdiction to re-hear the case. There are also countless judicial decisions affirming the position that appeals are by way of re-hearing. In the case of SAMUEL AWUKU (SUING BY HIS NEXT FRIEND) EMMANUEL OWUSU V. SULEMANA MUMUNI and SHAIBU SULEMANA [2014] 70 GMJ 114 the Court held per Ofoe JA at page 162 thus:

“We need to remind ourselves that an appeal, as is common legal knowledge is by way of rehearing and this casts a duty on an appellate court to review the whole evidence on record to determine whether the trial court has in any way faltered as to give cause to upholding the appeal lodged by the defendants. The powers of the appellate courts is reviewing the whole evidence and when these powers would be exercised in interfering with the trial courts findings have been expounded in several authorities.”

Also see the case of BROWN V. QUASHIGAH (2003 – 2004) 2 SCGLR 930

We now consider the grounds of appeal in the light of the statutory provisions and the relevant judicial authorities on same.

GROUND 1:

6. The award of six months’ salary as at 1997 as general damages for the wrongful termination of the plaintiffs/appellants contract of service/employment with the respondent was highly insignificant and extremely low and unreasonable considering the rate of inflation and the value of the cedi as at 1997/98 when the appellants were in the respondent’s employment then.

Having stated ground 1 of the grounds of appeal correctly, Counsel for plaintiffs/appellants immediately missed the road by basing her arguments in support of this ground of appeal on the costs of Gh¢22,000.00 awarded to the plaintiffs/applicants collectively. This is what the learned trial judge said at page 25 of his judgment which can be found at page 346 of the Record of Appeal.

“I also take note of the fact that the defendants (SIC) are 22 in number. Any costs must be awarded to reflect these facts. After a careful consideration I am of the opinion that Gh¢22,000.00 will be a reasonable amount to the plaintiffs as costs. I therefore award the said sum of Gh¢22,000.00 against the defendant in favour of the plaintiffs”.

On account of this fundamental misdirection in her line of argument, Counsel failed to establish the veracity of this ground of appeal.

It is true that the learned trial judge awarded 6 months’ salary as general damages in favour of each appellant. Even if the argument of counsel for the appellants is that this amounts to Gh¢22,000.00, yet her contention must still fail because she has not established the basis of the calculation. In any event, the 6 months salary cannot translate to the same amount for each of the appellants because as per Exhibits “E” and “E1” – E15” i.e. the pay slips of the appellants, they did not earn the same amount of salary.

The substance of this ground of appeal is that the amount of 6 months awarded as general damages as at 1997 for the wrongful termination of the appointments of the appellants was highly insignificant, extremely low and unreasonable considering the rate of inflation and the value of the cedi as at 1997/98 when the appellants were in the employment of the respondent company.

It is trite learning that general damages is such as the law would presume to flow as a natural and probable consequence of the defendant’s act and therefore need not be proved. I t is also trite knowledge that the award of general damages is a discretionary power. Nerveless the court is also duty bound to exercise its discretionary power judiciously based on the evidence before it. In the case of SAPPOR V. WIGATAP (2007 – 2008) SCGLR 676 AT 679, WOOD JSC as she then was stated emphatically as follows:

“The well-known and time honoured legal principle is that an appeal against a decision based on the exercise of the court’s discretionary jurisdiction would succeed in only those clearly exceptional cases where in sum, the judge failed to act judicially”.

Also as stated per Holding 1 of the same case at page 677,

“an appellate court would interfere with the exercise of discretion where the court below applied wrong principles or the conclusions reached would work manifest injustice or even that the discretion was exercised on wrong or in adequate material”.

Counsel for the appellants did not demonstrate where any of these applicable principles were not complied with or breached by the learned trial judge.

The evidence available on record is that the appellants were in the employment of the respondent company for a cumulative period of three years and eight months each. This court is of the considered opinion that the award of 6 months’ salary as general damages to each of the appellants is generous on the part of the trial judge. In CIVIL APPEAL NO.H1/25/2011 TITLED ALEX OPOKU and 3 ORS V. ASHANTI GOLDFIELDS LTD DATED 27THMAY 2011, the Court of Appeal, having held that the termination of the employment of the plaintiffs was wrongful awarded three months’ salary to each of the plaintiffs as damages for the wrongful termination of their employment. Incidentally, the defendant therein is the same as the defendant/respondent herein.

7. In further support of this ground 1 of appeal, Counsel canvassed three other points, namely, that:

• The plaintiffs should have been put in a position in which they would have been, had there not been a wrongful termination of their employment;
• Considering the length of the case, the trial judge should have properly considered the inflation existing between 1997–2014 when he finally gave his judgment, and
• Since the plaintiffs were not able to obtain a similar employment, the award of damages should have been substantial.

The law is patently clear that in a master/servant or employer/employee relationship where the employment of the employee is proved to have been wrongfully terminated, the employee is not entitled to restitutio in integrum as urged by counsel for the appellants on account of the fact that the employee has a duty to mitigate his/her losses or damages. This was succinctly stated in the case of ASHUN V. ACCRA BREWERY LTD (2009) SCGLR 81 AT 84 by the Supreme Court speaking through Dr. Date-Bah JSC as follows:

“..... the duty for mitigation of damages for wrongful dismissal devolves on an employee. Accordingly, he or she has the duty to take steps to find alternative employment. In principle then, in the absence of any statutory or contractual provision, the measure of damages for wrongful termination of employment under the common law of Ghana is compensation based on the employee’s current salary and other conditions of service, for a reasonable period within which the aggrieved party is expected to find alternative employment. Put in other words the measure of damages is the quantum of what the aggrieved party would have earned from his employment during such reasonable period determinable by the court after which he or she should have found alternative employment. This quantum is, of course subject to the duty of mitigation of damages.”

In the unreported case of ALEX OPOKU cited supra the damages awarded by the court of appeal for the wrongful termination of the appointments of the plaintiffs was not based on the several years that the case spanned over in court nor the spiraling inflation of the time. The trial judge awarded the general damages based on the salary placed by the appellants before the honourable trial court and the trial court could not have used any other figure other than the one in evidence.

Concerning the argument that the appellants were not able to find similar work between 1998 and 2014 when the case was in court, this court has reviewed the entire evidence in the Record of Appeal and no where did the appellants lead evidence to demonstrate that they made efforts within the 16 years to secure alternative employment but failed. In any event, the duty to mitigate damages imposed on the appellants by law and common sense prevents them from raising such an argument for consideration by the court.

On all angles, the appellants have through their counsel woefully failed to establish the legitimacy of ground one of the grounds of appeal. Ground 1 is accordingly dismissed.

Ground 2:

8. The trial High Court Judge erred when he failed to award interest on the one month salary in lieu of notice.

As canvassed by Counsel for the appellants in support of this ground of appeal the basic principle and rationale for the award of interest on sums owed can be found in the case of KAMA HEALTH SERVICES LTD V. UNILEVER GHANA LTD, CIVIL APPEAL NO. J4/24/2013 DATED 19TH JULY 2013 where it was posited by Benin JSC that:

“if a breach of contract had deprived a plaintiff of the use of a sum of money or other capital asset, the defendant must be presumed to have agreed to pay interest for the period between the date when the cause of action arose and the date of judgment”.

The learned Supreme Court Judge further went on to state that: -

“So too is interest not payable on account of the fact that the value of the principal sum has diminished as a result of factors like inflation or devaluation of the currency; interest is payable because the vender has kept the purchaser’s money under a contract which has failed as a result of the vendor’s default ..... Parties need not provide in their contract that interest shall be paid in the event of a breach. Interest payment follows failure of a contract under which payment has been made, as a form of damages for breach of contract.”

The case of KOBEAH and 39 ORS v. TEMA OIL REFINERY AND AKOMEA BOATENG and 78 ORS V. TEMA OIL REFINERY [2003 – 2005] 1 GLR 485, acknowledged the employer/employee relationship as being contractual in nature. It was stated by the Supreme Court per Dr. Twum JSC at page 496 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.”

Counsel for the appellants therefore submitted that having determined that the appellants were entitled to one month’s pay each in lieu of notice and awarded them same, and they having been deprived of the use of that money, the defendant must be presumed to have agreed to pay interest for the period between 1997 when the cause of action arose and the date of judgment 7th July 2014 the date of the judgment in their favour.

9. Counsel for the respondent resisted this ground of appeal fiercely. He submitted that for payment of interest to be invoked, the interest must be “in the contemplation of the parties”. He submitted that in a contract of employment the payment of interest in the event of termination and or wrongful dismissal is never in the contemplation of the parties at the time of entering the contractual relationship.

Counsel further submitted that if the claim for interest was based on an agreement, express or implied, the claim ought to be made in the Writ or the pleadings before it could be granted. He distinguished this from the situation where a statute gave power to the court to award interest. In this latter case, a plaintiff need not claim it in his pleadings for the Court could award interest without any claim in the pleadings. This difference was explained at holding 4 in the case of HOLLAND WEST AFRICAN and ANOTHER v. PAN AFRICAN TRADING COMPANY and ANOTHER (1976) 2 GLR 179,thus: -

“Where a statute gave power to the court to award interest, a plaintiff need not claim it in his pleadings for in such a case the court could award interest without any claim being made in the pleadings. But where the interest was claimed as a result of an agreement express or implied, then the claim must be made in the writ or pleadings.”

Counsel consequently urged the Court to dismiss this ground of appeal.

10. This Court is of the considered opinion that the ends of justice must not be frustrated by reliance on mere technicalities. Clearly the rationale for the award of interest as espoused in the case of KAMA HEALTH SERVICES LTD cited supra is a legitimate one and the law therefore imputes agreement on the part of the defendant to pay interest on amounts owed by it. In any event, the Court (Award of interest and Post-judgment interest) Rules 2005 C.I. 52 empowers the Courts to award interest. Rule 1(1) of C.I 52 provides in part as follows:

“1. If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated(a) at the bank rate prevailing at the time the order is made and(b) at simple interest”

This court is of the considered opinion that interest ought to be awarded on the one month salary in lieu of notice to each of the appellants and accordingly awards same at the prevailing bank rate and at simple interest. Ground 2 of the appeal is accordingly upheld.

Grounds 3, 4, 5 and 6 of the Additional Grounds of Appeal:

11. Counsel for the appellants argued these grounds together and contended that the trial High Court Judge having come to the conclusion that the appellants termination was wrongful, ought to have granted them salary arrears, repatriation benefits, leave benefits and charismas bonus from the date of termination till date of final judgment. She relied on the case of NARTEY TOKOLI v. VOLTA ALUMINIUM CO. LTD. (NO.2). (1989 – 1990) 2 GLR 341 where it was held per holding 2 by the Supreme Court 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. ... 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. ... 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.”

12. Counsel for the respondent resisted all the above claims and he did so as per the respective additional grounds of appeal and not lumped up as done by Counsel for the appellants.

On the claim for salary arrears at the current level and rate from the date of termination till the date of final judgment, Counsel submitted that the plaintiffs never pleaded any current level or rate of salaries to which they were entitled and also never led any evidence on same. He contended that it would be unrealistic to pay the plaintiffs/appellants salary “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.

up to the date of the judgment of the trial court, as if they were rendering services to the defendant/respondent company. This court agrees with counsel for the respondent on this point and is of the considered opinion that such an order by any court would fly in the face of the duty to mitigate damages following the wrongful termination of employment of an employee. Ground 3 of the additional grounds of appeal is dismissed.

Under the 4th additional ground of appeal the appellants claimed the payment of repatriation benefits of themselves, their wives and children following the termination of employment by the respondent company. Counsel for the respondent argued that even though this relief was endorsed on the Writ of Summons, the appellants failed to adduce any cogent evidence to establish the claim, especially when the defendant categorically denied this claim.

One of the issues set down for the determination of the trial court was whether or not the appellants were employees of the defendant company AGC or the Mining and Building Contractors MBC a subcontractor to the defendant company. The trial court after taking evidence and analyzing same held that the plaintiffs were former employees of the defendant company. (See lines 9 – 10 of page 335 of the Record of Appeal) That being the case, their entitlements would be governed by the Collective Agreement and Conditions of Service for Junior Staff as negotiated with the Ghana Mine Workers Union. Indeed the applicable Collective Agreement was tendered and admitted in evidence without objection as Exhibit “D” at the trial court. Article 11.07 of the said Collective Agreement deals with Repatriation and it provides in Article 11.07(a) as follows:-

“When an employee has completed five years’ service or more and leaves the company for reasons other than gross misconduct, he shall be repatriated to his home town within Ghana. The employee’s registered dependents and their personal effects shall also be repatriated by the company.”

The evidence on record is that the appellants worked for a cumulative period of three years and eight months each. A fortiori, they have not met the minimum threshold under the applicable Collective Agreement to be repatriated.

It is also to be noted that the NARTEY TOKOLI case cited supra relied on by Counsel for the appellants was emphatic 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 entitlement under the contact of employment as well. Therefore if the employee was not qualified under the contract of employment as evidenced by the Collective Agreement for a benefit or entitlement, the court cannot grant same. Ground 4 of the additional grounds of appeal is accordingly dismissed.

Ground 5 of the additional grounds of appeal is that the trial High Court ought to have awarded the plaintiffs/appellants leave benefits covering their period of employment with the respondent company. Counsel for the respondent also resisted this ground of appeal by arguing that the plaintiffs failed to lead any evidence to establish that claim and for which reason they were not entitled to same. On this ground of appeal both Counsel for the appellants and the respondent were obviously beating about the bush as by their line of argument they created the impression that they were not abreast with the contents of the judgment of the Learned Trial Judge nor the contents of the Record of Appeal. At pages 344 to 345 of the Record of Appeal which are also pages 23 and 24 of the judgment of the Learned Trial Judge, it is stated clearly as follows:-

“In conclusion, I enter judgment for the plaintiffs and declare as follows. ...4. The plaintiffs are entitled to their leave benefits during their period of employment with the defendant”.

We do not therefore see our way clear as to the basis of this ground of appeal to grant the appellants what they have already been granted by the trial court.

With regard to the contention of Counsel for the respondent that no cogent evidence was adduced on leave entitlements, Exhibit “D” the Collective Agreement which was tendered and admitted into evidence without objection provides in Article 8.01 in part as follows:-

“8.01 Annual leave entitlement(a) On completion of one year’s continuous service with the company, paid annual leave entitlement shall be as follows:Year of Continuous Surface UndergroundService1. 1 - 5 years 21 working days 28 working days”

There is no better evidence of the leave entitlement than this uncontroverted documentary evidence. Ground 5 of the additional grounds of appeal is summarily dismissed.

Ground 6 of the additional grounds of appeal is to the effect that the trial judge should have awarded the appellants Christmas bonus covering the period of employment with respondent company. Counsel for the appellants relied on the NARTEY TOKOLI case cited supra in claiming this relief. As the NARTEY TOKOLI case stipulated, the other entitlements must arise under the contract of employment. Counsel for the respondent rightly resisted this claim on the basis that the plaintiff/appellants failed to lead any evidence on same. Exhibit “D” the Collective Agreement has no provision on Christmas bonuses for staff. The case of MAJOLAGBE V. LARBI and ORS (1959) GLR 190 AT 192 is very clear on the position of the law as espoused by Ollenu J (as he then was) that:

“where a party makes an averment and his averment is denied, he is unlikely to have been held by the court to have sufficiently proved that averment by his merely going into the witness-box and repeating the averment on oath if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.”

Appellants have not made out their case for charismas bonus to the standard required by the law (preponderance of probabilities) and same is accordingly dismissed.

13. Save for the award of interest as indicated inground 2 of the grounds of appeal, the appeal is dismissed.

SGD

Angelina M. Domakyaareh (Mrs)

(JUSTICE OF APPEAL)

E. K. AYEBI, JA

I agree

SGD

E. K. Ayebi

(JUSTICE OF APPEAL)

TORKORNOO (MRS), JA

I agree

SGD

G. Torkornoo (Mrs.)

(JUSTICE OF APPEAL)

COUNSEL

DIANA ESSIEN FOR THE PLAINTIFFS/APPELLANTS

ANTHONY DESEWU KUJAWU FOR THE DEFENDANT/RESPONDENT