MAVIS FIAGBOR V. MAERSK LINE TEMA
Jurisdiction
High Court
Judge
N/A
Catalog Type
Case
Judgement Date
Oct 25, 2012
Summary
Labour law — Workmen’s compensation — Computation of compensation — Whether compensation properly assessed — Role of District Labour Officer — Failure to call material witness — Evidence — Burden of proof — Civil cases — Plaintiff’s duty to establish claim — Shifting burden — Failure to adduce material evidence — Practice and procedure — Fraud — Requirement that fraud be specifically pleaded and particularised — Whether delay in payment amounts to fraud — Interest — Claim for interest on delayed compensation — Whether payable in absence of proof of cause of delay — Jurisdiction — High Court — Whether jurisdiction ousted under Workmen’s Compensation Act, 1987 (PNDCL 187) Headnote The plaintiff, widow of a deceased employee of the defendant company, sued for recovery of an alleged shortfall in compensation payable under the Workmen’s Compensation Act, 1987 (PNDCL 187) following her husband’s death in a work-related accident. The defendant had paid compensation in two instalments based on assessments by the District Labour Officer. The plaintiff contended that the compensation was underpaid, that the defendant acted fraudulently in withholding part of it, and that she was entitled to interest due to delay in payment. The defendant argued that it paid all sums as directed by the District Labour Officer and denied any fraud. It also challenged the competence of the action and the jurisdiction of the High Court. Held Dismissing the claim: 1. On burden of proof The burden of proof in civil cases lies on the party asserting a claim. The plaintiff failed to adduce sufficient evidence to establish that there was any outstanding balance due her. 2. On failure to call a material witness The District Labour Officer, who computed the compensation and directed payments, was a material witness. The plaintiff’s failure to call him to testify was fatal to her claim of underpayment. 3. On fraud Fraud must be specifically pleaded with particulars and proved by evidence of dishonest misrepresentation. Mere delay in payment or reliance on official computation does not amount to fraud. The plaintiff failed to establish fraud. 4. On jurisdiction The Workmen’s Compensation Act did not expressly oust the jurisdiction of the High Court; therefore, by virtue of Article 140(1) of the 1992 Constitution, the High Court had jurisdiction to entertain the action. 5. On claim for interest Interest is not awardable where there is no clear evidence establishing when the money became due or who caused the delay in payment.
Full Content
JUDGMENT
KWABENA ASUMAN-ADU J
The Plaintiff was the wife of one Paul Fiagbor (deceased) who until his death was an employee of the Defendant Company. In the course of his duty as a driver of the Defendant Company he died in a motor accident on the Accra to Kumasi motor road on 12th April, 2006. On his death the Defendant paid out GH¢10,767.06 on 7th March, 2008 to dependants of the deceased, including the Plaintiff herein, workmen’s compensation. Nothing more was paid them until a year later, after Counsel for the Plaintiff had intervened by writing to the Defendant.
Upon Counsel’s intervention, the Defendant paid additional amount of GH¢12,166.20 on 25th February, 2009 to the Plaintiff. However, using the deceased’s April, 2006 salary statement of GH¢398.32, Plaintiff computed the compensation due her per section 3(1)(a) of the Workmen’s Compensation Act, 1987, (PNDCL 187) and obtained GH¢23,899.20.
The Plaintiff observed from the above calculation that in spite of the payments made to her by the Defendant, there had still been miscalculation of her benefits and also it had allegedly acted fraudulently. So on 14th January, 2009, the Plaintiff took action against the Defendant.
On 14th June 2011, pursuant to leave granted by this Court the Plaintiff filed amended writ and statement of claim against the Defendant claiming as follows:
i. Payment of the sum of GH¢965.94 to Plaintiff.
ii. Commercial interest on the sum of GH¢23,899.20 at prevailing rate effective from October, 2006, six months after the death of her husband, till 25th February, 2009 when the last installment of money was paid.
iii. Damages for fraudulent conduct by deliberately breaching PNDCL 187.
iv. Cost
The Defendant has denied the claim of the Plaintiff.
A brief background of the case is that one Paul Fiagbor who was a driver in the Defendant Company and a husband of the Plaintiff died in a motor accident on 12th April, 2006 on the Accra to Kumasi road.
On 7th March, 2008, the Defendant paid an amount of GH¢10,767.06 to the dependants of the deceased including the Plaintiff as compensation under the Workmen’s Compensation Act, 1987 (PNDCL 187). Later, from the discussion the Plaintiff allegedly had with some ex-union members of the Defendant Company, she got to know that the amount due her and the other dependants was more than what was paid by the Defendant as compensation.
The Plaintiff as a result engaged Counsel to intervene on her behalf and using the April 2006 pay slip of the deceased which had GH¢398.32 as his monthly salary and multiplying it by 60 months as provided in Section 3(1) of the PNDCL 187, it was observed that the compensation due to the dependants of the deceased was allegedly GH¢23,899.20 and not GH¢10,767.06 which was earlier on paid by the Defendant. Counsel, therefore, wrote to the Defendant on the shortfall in Plaintiff’s compensation. The Defendant as a result paid additional amount of GH¢12,166.20 on 25th February, 2009 as further compensation.
The Plaintiff alleged that notwithstanding the payments made by the Defendant to the Plaintiff, there is still a shortfall of GH¢965.94 being the difference between what is calculated as compensation under PNDCL 187 and what Defendant paid her. By this act of the Defendant, it has withheld payments due Plaintiff for over three years. The Defendant has, therefore, committed fraud on the Plaintiff.
The Plaintiff contends that by operation of PNDCL 187, the compensation due to Plaintiff should have been paid out within a total of six months after the death of her husband. So the sum of GH¢23,899.20 due Plaintiff should have been paid to her by 12th April 2006 and not 25th February, 2009 when the last tranche was paid to her. In view of that the Plaintiff is entitled to be paid interest on the amount paid from October, 2006 till 25th February, 2009 when the last tranche was paid.
The Defendant has denied the claim of the Plaintiff. It further denies that Paul Fiagber’s wife or any other beneficiary of Paul Fiagber’s estate has authorized the institution of this action.
It contends that the payment of GH¢10,767.06 was made to the dependants of the deceased only after Plaintiff and the Tema District Labour Officer had determined what was due.
According to the Defendant the Plaintiff and the District Chief Labour Officer made an application to the Circuit Court for payment of the money they had agreed on and the Court duly ordered the District Labour Officer to make the payment in full satisfaction of all heads of claim. So the error in computation was not the making of the Defendant. It was the amount the Labour Officer requested it to pay that it paid to the Plaintiff.
On the issue of interest the Defendant alleges that the Plaintiff is not entitled to interest on a sum that is not claim before this court it also avers that the Plaintiff’s mode of calculating interest is wrong in law. The Plaintiff is, therefore, not entitled to any of the reliefs she seeks.
Having reviewed the evidence before the court I will now go on to analyze the issues this court has been called upon to determine. On 11th March, 2009 this court differently constituted set down the following issues for trial:
1.Whether or not the Defendant paid Plaintiff Workmen’s Compensation according to section 3(1) of PNDCL 187.
2.Any other issue arising from the suit.
Before going on to evaluate the evidence vis-à-vis the issues that this court has been called upon to determine I will consider the principle of burden of proof in civil cases.
The burden of producing evidence and the allocation of the burden of persuasion in civil cases is governed by Section 11(1) and (4) and Section 14 of the Evidence Act 1973 (NRCD 323) which provides as follows:
“11 (1) for the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue.
11 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.
14 Except as otherwise provided by law, unless 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”.
Thus in Bank of West Africa v. Ackun (1963) 1 GLR 176 it was held in holding 2 thereof with regard to the onus of proof in civil cases as follows:
“The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof ...”
With regard to the burden of producing evidence it was held in Re Ashalley Botwe Lands; Adjetey Agbosu and others v. Kotey and Others (2003-2004) SCGLR 420 as follows:
“Under the Evidence Decree 1973 (NRCD 323) the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issues asserted and/or denied”.
As has been stated elsewhere in this judgment, the Plaintiff claims that the Defendant withheld some payments from her thereby committing fraud on her. Also the compensation paid to her by the Defendant was short paid. She is, therefore, demanding payment of the difference, damages for fraud and interest on the amount due her. The Defendant has, however, denied the claim of the Plaintiff and states that it has paid all amount due to the Plaintiff so she is not entitled to any further payment.
The onus is, therefore, on the Plaintiff to produce sufficient evidence to prove her case against the Defendant. See the case of Fosua and Adu-Poku v. Adu-Poku Mensah-Ansah [2009] SCGLR 310. See also the case of JASS CO LTD and Another v. APPAU and Another [2009] SCGLR 265 at 270 where Dotse JSC stated as follows:
“...We wish to observe that the burden of proof is always put on the plaintiff to satisfy the court on balance of probabilities in cases like this. Thus, where in situation, the defendant has not counterclaimed; and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claim would be dismissed...”
So in the instant case the court must find out from the evidence before it, whether the Plaintiff has been able to lead sufficient evidence to establish her case on a balance of probabilities as a result of which this court must rule in her favour. In doing that, I will go on to consider the issues that this court has been called upon to determine. However, before going on to consider the issues I will consider some preliminary issues raised by Counsel for the Defendant in his address. In his address Counsel for the Defendant submitted that under the Workmen’s Compensation Act, the questions to be investigated or determined were vested in the Circuit or District Court with the High Court having supervisory or appellate jurisdiction and not an original jurisdiction. He goes on to submit that the High Court, therefore, has no original jurisdiction in the current case.
The Workmen’s Compensation Act, 1987 (PNDCL 187) provides at Section 38 that Court in the Act is interpreted to mean a District or Circuit Court or any other Court declared by the Chief Justice to be the Court to which in an area or for a case or class proceedings under this Act may be brought.
From the said provision unless the Chief Justice so directs, it is true that jurisdiction in such cases is given to the District or Circuit Court. However, the Act does not specifically oust the jurisdiction of the High Court. If the intention of the Act was to oust the jurisdiction of the High Court it would have been specifically stated in the Act. Also by Article 140 (1) of the 1992 Constitution the High Court has original Jurisdiction in all matters except where the jurisdiction of the High Court is specifically ousted. Since there is no provision in the Act ousting the jurisdiction of the High Court in matters pertaining to the Act, by Article 140 (1) of the 1992 Constitution the High Court could preside on such matters. More so if the Defendant had wanted to raise the issue of jurisdiction then it should have raised it timeously, but not to wait till the end of the case before raising it. Since it did not raise it at the initial stages of the trial and has waited up to the end of the case before raising it, it is the view of the court that the Defendant has submitted to the jurisdiction of this court so the case will not be struck out on grounds that this court has no jurisdiction.
The Defendant also raised the issue that the Plaintiff brings this action in her capacity as Administrator of the estate of the late Paul Fiagbor and not as a dependant. It claims the Plaintiff even did not say in her evidence in court that she was suing on behalf of other dependants although by Exhibit C there are other dependants.
Counsel for the Defendant goes on to submit that beneficiaries covered by Letters of Administration may not necessarily be the same as dependants under the Workmen’s Compensation Act. Thus, the holder of Letters of Administration does not necessarily act for all dependants. He also submits that the Letters of Administration was granted to the Plaintiff herein and one other person so as trustees, they should have brought this action together.
Counsel goes on to contend that since the Administrators declared the value of the estate of the deceased as GH¢300.00 and took an oath to administer assets to the value faithfully, they cannot be given judgment in action for claim of GH¢965.94. The action is, therefore, incompetent and must be struck on that ground.
The Plaintiff clearly identified herself as the wife of the deceased both in her amended statement of claim and in her evidence in court. He went on to tender in evidence a certificate of marriage to support the fact that she was the wife of the deceased. Her capacity as the wife of the deceased was not challenged by the defendant. It is also not in doubt that she was one of the beneficiaries of the estate of the deceased. The Plaintiff tendered in evidence the Letters of Administration to prove that she has capacity to deal with the estate of the deceased. It is, therefore, my opinion that even though it would have been more appropriate for the two holders of the Letters of Administration to have sued, any of them could have taken action. In that case the Court will have to ensure that if there should be any payment to be made in respect of the estate of the deceased it will be paid to the two administrators. Also at the time she applied for the letters of administration the amount to be paid as Workmen’s Compensation was not known so definitely it could not have been stated as part of the estate of the deceased. So that in case the court grants that relief it could order an amendment to be made to the value of the estate on the Letters of Administration to reflect the amount to be paid in order for the Administrators to pay the relevant tax on it. I, therefore, do not agree with the Defendant that the action is incompetent.
The Plaintiff also alleged fraud against the Defendant in respect of compensation to the Plaintiff so I will consider that issue as well.
According to Counsel for the Plaintiff when the Defendant made the initial payment of GH¢10,767.06 to the Plaintiff it did not make it known to the Plaintiff that, that was not the final payment. Rather counsel for the Defendant stated in Exhibit F that, the payment made to the Plaintiff was in full satisfaction of the award under the Workmen’s Compensation Act. It was through conversation with some ex-employees of Defendant that, the Plaintiff got to know that the amount paid to her was not what was due her. The Plaintiff claims that by this act of the Defendant it had misrepresented the facts to the Plaintiff and concealed the rest of the compensation from her. So by this the Defendant had acted fraudulently.
In her statement of claim the Plaintiff stated in paragraph 9 that Defendant practiced fraud on her by withholding payments due her in law for over three years till they were compelled to do so by Counsel.
Counsel for the Plaintiff supported his submission with a lot of decided cases on fraud. So the question is can it be said that the Defendant has actually committed fraud on the Plaintiff?
In the case of Adumuah Okwei v. Ashieteye Laryea [2011] 1 SCGLR 317 the Supreme Court held at holding 1 as follows:
“Fraud qua fraud was such a serious allegation in legal proceedings. It should not be lightly made. The courts would look with disfavor on a party who made it and was unable to substantiate it and would, sometimes, dismiss his action with heavy penalties. Consequently, fraud should not be pleaded when counsel could not, from available instructions, form a strong opinion in favour of it. Thus when fraud was intended to be charged, it must be distinctively charged and its details specified. General allegations, however, strong were insufficient to amount to an averment of fraud of which any court might take notice. And a representation must be a matter of fact and not of law. If there was a misrepresentation of matter of law as to the legal consequences of admitted facts, in the absence of actual fraud, no court would grant any relief based on fraud...”
The same case goes on to state the legal position in allegation of fraud at page 324 from Odger;s Principles of Pleading and Practice, (18th ed. at page 202) as follows:
“Where fraud is intended to be charged, it must be distinctively charged, and in details specified. General allegations, however, strong, are insufficient to amount to an averment of fraud of which any court ought to take notice...Counsel must insist on being fully instructed before placing a plea of fraud on the record.”
In Re Agyekum (Decd); Agyekum and Others v. Tackie and Brown (substituted by) Adjindah and Others [2005-2006] SCGLR 851 at 855 Dr. Seth Twum JSC delivering Judgment of the Court said as follows:
“Where fraud is alleged, it is a different matter; for fraud vitiates every act or deed put forward as supporting a transaction or even a judgment of a court. But where fraud is alleged (we may include duress and undue influence) they must be pleaded with the requisite particularity. Vague allegations of uncommon, unusual, or even unconscionable dispositions of his own property by a testator, induced by logic rather than facts properly pleaded, should be firmly ignored.”
The principle of giving particulars of fraud in pleading is also emphasized by the High Court Civil Procedure Rules CI 47 which states at Order 11 Rule 12 (1) (a) that every pleading shall contain the necessary particulars of any misrepresentation, fraud, breach of trust, willful default, or undue influence on which the party pleading relies.
From the authorities referred to above, in pleading fraud, counsel must be certain that by the act complained of, the party concerned has made a false representation by means of a statement or conduct made knowingly or recklessly in order to gain a material advantage. That is a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. So in alleging fraud pleading particulars of fraud is mandatory. It requires that the party pleading fraud gives particulars of it at the time of pleading
In the current case the evidence shows that on the death of the deceased and upon a request made by the District Labour Officer, the Defendant paid to the Plaintiff an amount of GH¢10,767.06 on 7th March, 2008. The evidence goes on to show that no further payment was made to the Plaintiff until Counsel for the Plaintiff intervened as a result of which an amount of GH¢12,166.20 was paid to her on 25th February, 2009 as additional compensation. The Plaintiff contends that by this the Defendant has committed fraud on her.
The Defendant, however, per Jenny Enyo Akar contends that it committed no fraud on the Plaintiff in the sense that it paid to the Plaintiff what the District Labour Officer instructed it to pay. This assertion has not been denied by the Plaintiff. Even Exhibits 1 and 2 make it clear that the Defendant made payment to the Plaintiff based on request made by the District Labour Officer. The evidence, therefore, shows that the Defendant always relied entirely on the District Labour Officer for the assessment of the compensation payable and as soon as the request was made the Defendant promptly paid to the Plaintiff. In this case, it was not pleaded by the Plaintiff that the Defendant had made a misrepresentation to the Plaintiff by suppressing any facts with the intention of making the Plaintiff to rely on those facts to her detriment. There is also no evidence before this court that the Defendant made any false representation to the Plaintiff knowingly or without belief in its truth or recklessly, careless whether it was true or false. A representation must be a matter of fact. If there is a misrepresentation of a matter of law as to the legal consequences of admitted facts, in the absence of actual fraud, no court will grant any relief based on fraud.
In his address Counsel for the Plaintiff referred to the definition of fraud in Sutton and Shannon on Contract, 7th ed. at page 190 which states that:
“A statement is made fraudulently if it is made dishonestly.”
Fraud in civil law is also discussed in Chitty on Contracts 29th Edition Chapter 6 Paragraph 043. It states as follows:
“...In order for fraud to be established, it is necessary to prove the absence of an honest belief in the truth of that which has been stated; in the words of Lord Herschell, “fraud is proved when it is shown that a false representation has been made: (1) knowingly; or (2) without belief in the truth; or (3) recklessly, careless whether it be true or false.” The converse of this is that however negligent a person may be, he cannot be liable for fraud, provided that his belief is honest; mere carelessness is not sufficient, although gross carelessness may justify an inference that he was not honest,”
In the instant case the Plaintiff did not plead that the Defendant had made any misrepresentation to the Plaintiff by suppressing any facts with the intention of making the Plaintiff to rely on those facts to her detriment. There is also no evidence before this court that the Defendant made any false representation to the Plaintiff knowingly or without belief in its truth or recklessly, careless whether it is true or false. A representation must be a matter of fact. If there is a misrepresentation of a matter of law as to the legal consequences of admitted facts, in the absence of actual fraud, no court will grant any relief based on fraud. The evidence before the court does not show that the Defendant dishonestly withheld the amount of GH¢12,166.20 from the Plaintiff. It is, therefore, my opinion that withholding payments for over three years until counsel intervened as stated in paragraph 9 of the amended statement of claim does not amount to fraud. So from the evidence before the Court, there is nothing to show that the Defendant has committed fraud on the Plaintiff. Allegation of fraud is as a result not maintainable.
The main issue set down for determination is whether or not the Defendant paid Plaintiff’s workmen’s compensation according to section 3 (1) of PNDCL 187. By the said section of the Act, the dependants of the deceased were to be paid compensation of a sum of money equal to sixty months earnings.
The evidence before the court as stated above shows that on the death of the deceased the Defendant paid an amount of GH¢10,767.0 to the Plaintiff based on directive from the District Labour Officer as per Exhibit 1. Upon the intervention of counsel for the Plaintiff the District Labour Officer further directed the Defendant per Exhibit 3 to pay an amount of GH¢12,166.20 to the Plaintiff as additional compensation which it complied and paid it to the Plaintiff. So in all, the Defendant paid a total amount of GH¢22,942.20 to the Plaintiff as compensation in respect of the death of the deceased. So according to the Defendant this represents the amount due the Plaintiff. However, the Plaintiff claims the Defendant still owes her an amount of GH¢965.94 which is the difference between what is calculated as compensation by PNDCL 187 and the amount paid to the Plaintiff by the Defendant. This figure is disputed by the Defendant. The Defendant claims that the figure used by the Plaintiff to make her calculation included trip allowance which is not classified as earnings. It claims that trip allowance is only paid when a driver makes a trip outside his base. So that if no trip is made outside his base he is not paid trip allowance. It cannot, therefore, form part of a driver’s normal earnings. So it is wrong to include that in the headings when calculating average earnings of a driver.
It is observed from the evidence that all the payments made to the Plaintiff by the Defendant were made upon calculation made by the District Labour Officer. That is it was the District Labour Officer who calculated the amount due and requested the Defendant to pay. So that if for any reason the Plaintiff thinks that she has been short paid then she should have asked the District Labour Officer to re-calculate it and if he finds that there should be more payment then he directs the Defendant to pay. On the other hand the District Labour Officer should have been invited by the Plaintiff to give evidence for the court to know the method used to calculate it and also find out whether or not the Plaintiff had been short paid. It is, therefore, not surprising when counsel for the Plaintiff recognized the District labour officer as a material witness in his address.
In his address counsel for the Plaintiff stated that it is regrettable that the Labour officer was not invited to give evidence on his documents as what Defendant said was so unsatisfactory, speculative and nugatory. He goes on to state that he was hoping the Labour Officer would be called as a witness to be cross-examined on the documents tendered in evidence. He goes on to state as follows:
“So critical was the role of the labour officer in this suit that his evidence was materially significant in clarifying the murkiness surrounding the various sums paid to plaintiff, and on the dates they were paid. However, defendant failed to call him.”
Counsel for Plaintiff states in the address:
“It is not for plaintiff to state how defendant should conduct his case, though we very much wished the labour officer had been present to assist the court.”
Counsel for the Plaintiff refers the court to the case of Barima Gyamfi and Anorther v. Ama Badu (1963) 2 GLR 596 in that case the Supreme Court states at holding 1 as follows:
“In a claim made by a plaintiff, there is no onus on the defendant to disprove the claim so that however unsatisfactory or conflicting the defendant's evidence may be, it cannot avail the plaintiff. The evidence of the defence only becomes important if it can upset the balance of probabilities which the plaintiffs evidence might have created in the plaintiff's favour or if it tends to corroborate the plaintiff's evidence or tends to show that evidence led on behalf of the plaintiff was true.”
So from the submission made by counsel for the Plaintiff in his address, the Labour Officer was a material witness in this case. Since it is the Plaintiff who is alleging that she has been short paid, the onus is on her to lead sufficient evidence to prove her case and since she has recognized the District Labour Officer as a material witness then she should have invited him to give evidence but not to assume that he would be called by the Defendant so that she would have the opportunity to cross examine him.
In civil proceedings, the consequences of a party’s failure to call a material witness depend on the onus of proof placed on him by the facts of the case. If a party has to establish his case and, therefore, assumes the onus of proof, he must call witnesses material to establish that case. In that event his failure to call a material witness may result in a ruling being given against him for the reason that he has failed to establish that case. See Section 11(1) of the Evidence Act, 1975 (NRCD 323) which states as follows:
“For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.”
In Owusu v. Tabiri and Another [1987-88] 1 GLR 287, the defendant contended that the issue before the court was res judicata as it had been resolved by a chief at a valid arbitration. The plaintiff on the other hand argued that what took place before the chief was a negotiated settlement. The chief who alone could have established that there was a valid arbitration was not called to testify. The court held that since the onus of proof was on the defendant who asserted that there was a valid arbitration, his failure to call the chief was fatal to his allegation that there was a valid arbitration.
In the current case the evidence shows that it is the District Labour Officer who could have given evidence to prove whether or not the Plaintiff had been short paid and no other person could have done that. His evidence would have also helped the court to determine whether or not to include trip allowance in the calculation. He was, therefore a material witness who should have been invited by the Plaintiff to give evidence on the issue. So failure to invite him to give evidence is fatal to plaintiff’s case on the issue. It is, therefore, my opinion that since the Labour Officer did not give evidence on the issue the Plaintiff has failed to lead sufficient evidence to prove that the Plaintiff still owes her an amount of GH¢965.94. This court cannot, therefore, base on Plaintiff’s evidence to declare that the Defendant still owes the Plaintiff that amount. The Plaintiff is as a result not entitled to be paid that amount.
The last issue to consider is whether or not the Plaintiff is entitled to be paid interest on the amount due her.
In her relief (ii) the Plaintiff is claiming commercial interest on the sum of GH¢23,899.20 at prevailing rate due her with effect from March, 2004 till 18th February, 2009 when the last installment of money was paid to her.
In the first place it is not clear from the evidence how the Plaintiff arrived at the sum GH¢23,899.20 since the evidence before the court clearly shows the amount that was due to the Plaintiff and which was paid to her was GH¢22,942.20. It is also not clear why the Plaintiff fixes October 2006 as the date on which the money became due. By the Act an application for the payment of the compensation should have been made by the dependants of the deceased within six months of his death. There is no evidence on record to show that the said application was made. Even in her evidence-in-chief Jenni Enyo Ackah stated that the Plaintiff made no such claim within the stipulated period. The said evidence was not denied by the Plaintiff. This amounts to admission of that averment.
In Quagraine v. Adams [1981] GLR 599, it was held by the Court of Appeal that where a party makes an averment and his opponent fails to cross examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by the failure to cross examine. The Court, therefore, agrees with the Defendant that no claim was made on it by the Plaintiff for the payment of the compensation as provided in the Workmen’s Compensation Act. It is, therefore, wrong for the Plaintiff to claim interest on the amount due from October 2006. As it stands now it is not clear from the evidence when the amount actually became due for payment. To declare that the Defendant is liable to pay interest on the amount due, the evidence before the court must prove that the delay in payment of the compensation was caused by the Defendant.
It is not clear from the evidence before the court in the current case, the person who actually caused the delay in the payment of the compensation to the Plaintiff. This is because per section 35 of the Act, the Labour Officer is expected to notify the Defendant of the amount of compensation to pay. The evidence shows that per Exhibits 1 and 2 dated 16th November, 2007 and 12th December, 2008 respectively the District Labour Officer directed the Defendant to pay GH¢10,767.06 and GH¢12,166.20 respectively to the dependants of the deceased which it paid. It is, however, not clear from the evidence why it took over one year for the first notification to be made to the Defendant. There is, therefore, nothing in evidence to show who actually caused the delay in the payment of the compensation to the Plaintiff.
In the current case, as stated above, the evidence clearly shows that even though the notification was made on 16th November, 2007 and 12th December, 2008 it is not clear from the evidence why it took over one year for the first notification to be made to the Defendant. If the Labour Officer had been invited to give evidence as stated in this judgment, this issue would have been resolved and the court would have known who to be faulted for the delay in the payment.
As it stands now the evidence before the court is not sufficient to determine who actually caused the delay in the payment of the compensation to the Plaintiff. In view of that the Defendant could not be faulted based on the evidence before the Court. It is, therefore, my opinion that the Defendant could not be called upon to pay interest on the amount paid to the Plaintiff. So from the evidence this court cannot order the Defendant to pay interest on the amount.
The Plaintiff is, therefore, not entitled to any of the reliefs, endorsed on her writ of summons. Her action is as a result dismissed.
In conclusion I enter judgment in favour of the Defendant. No order as to costs.
SGD
KWABENA ASUMAN-ADU J
JUSTICE OF THE HIGH COURT
COUNSEL
MR. AHUMAH OCANSEY FOR THE PLAINTIFF,MR. GEORGE THOMPSON FOR THE DEFENDANT