MAWULI ERIC V. WILKADO CONSTRUCTION WORKS LTD

JUDGMENT

DEKYEM, J.

Plaintiff per his pleadings averred that he is a carpenter and was a permanent employee of Defendant Company having been employed in 2007. He averred that  on or about 26th July 2012 at age 60 and during the course of employment, he sustained injury following an accident which injury was reported to the  Metropolitan Labour Officer who ordered a lump sum compensation of GHS23,053.00 to be paid to Plaintiff by the Defendant. It is Plaintiff’s contention that  unless compelled by the court, Defendant will not pay the compensation amount  wherefore Plaintiff claims the following reliefs per his writ of summons:

a) Recovery of GHS23,053.00 being lump sum ordered by the Metro Labour  Office to be paid on the 18th day of December 2012 by the Defendant on  grounds of injury at Defendant’s workplace.  

b) Interest on the said amount at the current bank rate to date of final  payment. 

c) Cost inclusive of legal cost or fees. 

Defendant per its statement of defence denied that Plaintiff was ever its  employee and contended that Plaintiff was an independent contractor at the time  of the accident wherefore Plaintiff is not entitled to his claim. Following case  management, the following issues were settled for trial: 

a) Whether or not the Plaintiff is a permanent worker of the Defendant  company 

b) Whether or not the Plaintiff suffered severe injuries as a result of the  accident. 

c) Whether or not the Plaintiff has been paid compensation by the Defendant.

d) Whether or not Plaintiff is entitled to the reliefs sought. 

The provisions of the Evidence Decree, 1975 (NRCD 323) regarding burden of  proof in civil cases are as follows: 

Section 10—Burden of Persuasion Defined. 

(1) For the purposes of this Decree, the burden of persuasion means the  obligation of a party to establish a requisite degree of belief concerning  a fact in the mind of the tribunal of fact or the court. 

(2) The burden of persuasion may require a party to raise a reasonable  doubt concerning the existence or non-existence of a fact or that he  establish the existence or non-existence of a fact by a preponderance of  the probabilities or by proof beyond a reasonable doubt. 

Section 11—Burden of Producing Evidence Defined. 

(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid  a ruling against him on the issue. 

(4) In other circumstances the burden of producing evidence requires a  party to produce sufficient evidence so that on all the evidence a  reasonable mind could conclude that the existence of the fact was more  probable than its non-existence. 

Section 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. 

Section 14—Allocation of Burden of Persuasion. 

Except as otherwise provided by law, unless and until it is shifted a  party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is  asserting.

Section 17—Allocation of Burden of Producing Evidence. 

(1) Except as otherwise provided by law, the burden of producing  evidence of a particular fact is on the party against whom a finding on  that fact would be required in the absence of further proof. 

(2) Except as otherwise provided by law, the burden of producing  evidence of a particular fact is initially on the party with the burden of  persuasion as to that fact. 

The records show that Defendant was duly served hearing notice of the trial but it  failed to attend and participate in the trial. The principle is that where an action  is called for trial and the plaintiff attends but the defendant fails to attend, the  court will allow the plaintiff to prove his or her claim. It was held in Republic v. Court of Appeal, Ex Parte Eastern Alloys Co. Ltd [2007-2008] 1 SCGLR 371 that ‘a  party that was aware of a hearing date and yet absented itself could not say  there was a breach of natural justice if the case was held in his absence.’ See also  In re West Coast Dyeing Industry Limited; Adams v. Tandoh [1984-86] 2 GLR 561  CA, Walata v. Ghana Primewood Products Ltd [1973] 2 GLR 126. In the  circumstances the court proceeded to hear Plaintiff. 

Whether or not the Plaintiff is a permanent worker of the Defendant company?  Plaintiff relied on his witness statement as his evidence in chief. He stated at  paragraph 4 thereof that: “I was employed by the company as far back as 2007 and doing my work faithfully until the incident. I was being paid on weekly basis.” The assertion that Plaintiff was an employee of Defendant was denied by the  latter. In Ackah v. Pergah Transport Limited and Others [2010] SCGLR 728 it was  held that it is a basic principle of the law on evidence that a party who bears the  burden of proof is to produce the required evidence of the facts in issue that has  the quality of credibility short of which his claim may fail. The method of  producing evidence is varied and it includes the testimonies of the party and  material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the  requisite degree of credibility concerning a fact in the mind of the court or  tribunal of fact such as a jury. It is trite law that matters that are capable of proof  must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under  sections 10 and 11 of the Evidence Decree. 

A workman who is entitled to workmen’s compensation under the Workmen’s  Compensation Law, 1987 (PNDCL 187) is one who has entered into or is working  under a contract of service or apprenticeship with an employer, whether skilled  or unskilled, and whether the contract is expressed or implied, oral or in writing. 

Plaintiff did not exhibit any contract of employment but in the Employer’s report  of occupational injury pursuant to section 120 of the Labour Act, 2003 (Act 651) to the Metro Labour Officer, Plaintiff’s monthly earnings made up of wages and  other benefits was stated as being GHS552 consistently from January to July and  signed on behalf of the employer being Defendant. Part B of the section 120 of Act 651 form on “Employer’s Report on Incapacity” signed on behalf of Defendant  by the same signature indicated Plaintiff’s incapacitation and nowhere on the  entire form did Defendant indicate that Plaintiff was not Defendant’s employee. It was held in Bisi and Others v. Tabiri alias Asare [1987-88] 1 GLR 360-413 SC that “the standard of proof required of a plaintiff in a civil action was to lead such  evidence as would tilt in his favour the balance of probabilities on the particular  issue. The demand for strict proof of pleadings had however never been taken to  call for an inflexible proof either beyond reasonable doubt or with mathematical  exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of  evidence became the trier's belief in the preponderance of probability. But  "probability" denoted an element of doubt or uncertainty and recognized that  where there were two choices it was sufficient if the choice selected was more  probable than the choice rejected..” In the instant case the court finds Plaintiff’s  assertion that he was a worker or employee of Defendant more probable and will  hold that Plaintiff was Defendant’s employee thus entitled under PNDCL 187. 

Whether or not the Plaintiff suffered severe injuries as a result of the accident.  Plaintiff testified that in the course of his work, he was involved in an accident  when using Defendant’s machinery and as a result suffered serious injury to his  body where he was rushed to the hospital for treatment. In proof of this, Plaintiff  exhibited a medical report dated 20th November 2012 which states as follows: 

“MEDICAL REPORT 

MAWULI ERIC

The above named was involved in an industrial accident whilst at work. 

He sustained deep laceration of the left forearm involving the flexor muscles of the  forearm and ulna nerve. 

There was a mid shaft fracture on the left ulna bone. 

The fractured bone was fixed and ulna nerve and muscle repaired. Currently the wound is healed but there is stiffness of the fractured hand. Estimated permanent deformity and functional incapacity is estimated at 60%. Yours faithfully 

SGD: DR CHRISTIAN K. AMENUVEVE 

DIRECTOR  

UNIVERSITY HEALTH SERVICES” 

From the medical report the court finds that Plaintiff sustained injury which  permanent deformity and functional incapacity is estimated at 60%. Is Plaintiff  thus entitled to his claim? Following the report of the accident to the Metro  Labour Office, the latter computed compensation due Plaintiff as GHS23,053.00 and same served on Defendant by correspondence dated 18th December 2012. 

There is no evidence placed before the court contrary to Plaintiff’s assertion that  Defendant has failed to pay the compensation and will hold that the compensation has not been paid by Defendant to Plaintiff. In conclusion  judgment is entered in favour of Plaintiff as follows: 

a) Plaintiff to recover from Defendant GHS23,053.00 being lump sum ordered  by the Metro Labour Office to be paid to Plaintiff by the Defendant on  grounds of injury at Defendant’s workplace. 

b) Interest on the said amount at the current bank rate from date of judgment to date of final payment at simple interest 

c) Cost of GHS2,000.00 

(SGD) 

Justice Gifty Dekyem 

Justice of the High Court

Labour Division 1, Accra

COUNSEL

OSCAR VULOR ESQ for Plaintiff

FRED DOTSE ESQ for Defendant.