CLEMENT AGBESI & 4 ORS. V. GHANA PORTS AND HABOUR AUTHORITY

JUDGMENT

AKAMBA J.A.

On 11th July 2003 a writ was issued in the High Court Tema by the plaintiffs/respondents (hereinafter referred as plaintiffs) against the Defendant/Appellant, Ghana Ports and Harbours Authority by five named plaintiffs and 'others'. The writ was accompanied by an 'addendum to writ' filed that same 11th July 2003. The addendum stated that 'a full and comprehensive, detailed list of all the plaintiffs will be supplied to the court subsequently'. The claims against the defendant were for:

"(a) Damages for the breach of the provisions of the Collective Bargaining Agreement between the parties© sic. An award of compensation by the Court to the Plaintiffs to be paid by the defendant for its illegal/unlawful conduct in keeping the Plaintiffs as casual workers and breaching Plaintiffs economic rights under the 1992 Constitution and also discriminating against the Plaintiffs contrary to the provisions of the 1992 Constitution.(c) An order that the same compensation package given to various categories of permanent employees as compensation for the severance of employment resulting from the same re-organization of the defendant, be made applicable to the plaintiffs OR in the alternative an order that the defendant negotiates with the plaintiffs the appropriate compensation payable to the plaintiffs.(f) Interest on all sums found due and owing from the defendant to the plaintiffs at the Commercial Bank rate from 1st October 2002 to date of judgment.(g) Costs

The Defendant entered appearance to the writ as it stood on 22nd July 2003. The High Court Tema after hearing evidence on the claim entered judgment on 18th January 2006 in favour of the five named original plaintiffs together with 4195 others as follows:

"(i) Five million cedis (¢5,000,000) to each plaintiff as damages for breach of the Collective Bargaining Agreement {CBA};(ii) Ten million cedis (¢10,000,000) to each plaintiff for each year of service 'after the expiration of 154 days continuous working' by the plaintiffs in the defendant's employment as compensation for the illegal conduct of the defendant in keeping the plaintiffs as casual workers, violation of the plaintiffs' economic rights and discriminating against them contrary to the 1992 Constitution;(iii) Severance Award comprising:(a) Three months salary for each year of service;(b) ¢3,000,000 in lieu of rent;(c) ¢2,000,000 for medicals;(d) Two (2) bags of rice;(e) Two (2) gallons of oil;(f) Year 2001 bonus for those who qualify;(g) ¢1,500,000 'as conveyance fees';(h) Five (5) months salary as handshake;(i) 'Others' including long service award whose value the court has not known but which the Parties to the suit consider and know to be appropriate.; (j) Interest on all sums due to each plaintiff at current commercial bank rate from 1st October 2002 to the date of judgment.(k) Ten million cedis (¢10,000,000) costs."

The Defendant/Appellant (hereinafter simply the defendant) against whom the judgment was awarded being aggrieved by the aforementioned decision appealed to this court on seventeen grounds listed in their notice of appeal filed on 2nd February 2006. By far the most important ground raised by the appellants is the omnibus ground which alleges that the judgment is against the weight of evidence since the remaining grounds particularize the misdirections complained of. For ease of reckoning I propose to deal with the grounds of appeal in the same sequence adopted by the appellant.

Grounds (i), (ii) and Additional Ground A

The defendant impugns the trial judge's judgment entered for three thousand eight hundred and thirty nine (3839) persons plus a further three hundred and fifty six (356) others as plaintiffs, as unsupportable under the rules of Court, particularly CI 47 as well as the record of proceedings. It is evident from the submissions of counsel in this appeal that both are under the impression that CI 47 is the appropriate rules of court that governed the proceedings before the lower court. That position appears contrary to the state of the law hence I propose to address same. The writ of summons which initiated the action in the High Court was indorsed on 11th July 2003. The applicable rules of court that governed the action at the material time was LN140A which was only repealed by the adoption of the new civil procedure rules on 3rd January 2005. The Interpretations Act CA 4 provides on the effects of repeal as follows:

"Section 8—Effect of Repeal, Revocation or Cesser.(1) The repeal or revocation of an enactment shall not—(a) revive anything not in force or existing at the time when the repeal or revocation takes effect; or(b) affect the previous operation of the enactment or anything duly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed thereunder; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked."

The High Court Sunyani inKramo v. Afriyie (1973)1 GLR 95 per Osei-Hwere J. (as he then was) was called upon to interpret s. 8 (1) (b) of CA 4, the Interpretation Act as it affected the appeal before the court. In that case the District Court had summarily dismissed the plaintiff's land suit claiming lack of jurisdiction. The plaintiff filed his notice of appeal on 21st September 1971 when the governing legislation was the Courts Decree 1966 (NLCD 84) which had no laid down procedure for appeals from the decisions of District Courts. On 22nd September 1971 being the next day after the plaintiff had filed his appeal a new Courts Act (Act 372) 1971 was passed which repealed NLCD 84. The new Act 372 provided that special leave be obtained from the court below or the appellate court for appeals from interlocutory orders. When the appeal came up for hearing, the governing legislation was Act 372 but the Plaintiff had not obtained leave to appeal from the ruling of the trial Magistrate, a prior requirement under the new Act. The defendant's counsel in opposition to the appeal urged that the ruling of the trial Magistrate was an interlocutory decision and since the plaintiff had not sought special leave to appeal there from he had no right of appeal to the High Court. The defendant's counsel also raised jurisdictional objections to the trial Magistrate's hearing the dispute.

The High Court held, rightly in my view, that although the new Court's Act 1971 (Act 372) was a procedural enactment and therefore retrospective in effect and as such applied to all actions whether commenced before or after it had been passed nevertheless it did not apply to the plaintiff's appeal filed under the Court's Decree 1966 (NLCD 84) prior to the enactment of the Court's Act 1971, in view of the provisions of section 8 (1) (b) of the Interpretations Act 1960 (C.A. 4) which provided that the repeal or revocation of an enactment would not affect the previous operation of the enactment or anything duly done or suffered thereunder.

It is obviously trite to state that the appropriate legislation governing the procedure for determining the present suit at the time it was filed was LN 140A and not CI 47 as erroneously canvassed by both counsel.

A plaintiff is defined in order 1 of LN 140A as "including every person asking any relief (otherwise than by way of counterclaim as a defendant) against any other person by any form of proceeding, whether the proceeding is by action, suit, petition, motion, summons or otherwise" The writ in the present suit was sealed in the court below in the name of five clearly stated persons and "ors" which latter stands for others as plaintiffs as against a named defendant. There was no indication as to the number of the others to guide the defendant or the court. There was equally no indication of any special capacity than in their individual rights. Besides, on the issue of representative capacity our law just as English law, does not provide for the safeguarding of property and affairs of absent persons save where leave to swear death and the grant of probate or administration has been obtained. See Kamouh v. Associated Electrical Industries Int. Ltd (1980) Q.B. 199; (1979) 2 WLR 795. Be that as it may, counsel for the defendant thinks that paragraphs 1 to 3 of the statement of claim provides succuor since it specifies the suit as a class action in which each member of the class was suing the defendant. If this argument is worth buying, then what is disclosed is a 'class' to which only the five named plaintiffs belong and no more. If on the other hand the five named plaintiffs instituted a class action as contended by their counsel, they were obliged to conduct their action in accordance with the rules of court to show the status or capacity by which they so embarked on their action. My understanding of a class action is that in which there are numerous persons having the same interest in a cause or matter and for which a few are elected or authorized to ventilate the claim on behalf of themselves and the other members of the class. Order 16 rule 9 of LN 140A provides support for this position. It enacts:

'where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorized by the court or a judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested.'

Furthermore order 3 rule 4 states that

'if the plaintiff sues, or the defendant or any of the defendants is sued in a representative capacity, the indorsement shall show, in manner appearing by such of the forms in Appendix A, Part III as shall be applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued.'

In the instant appeal, the five plaintiffs had omitted to disclose their representative capacity (that they claim to have sued in) in the endorsement of their claim and pleading in compliance with the rules. The mere endorsement of their five names as plaintiffs and 'ors' does not disclose any representative capacity in them to sue. The five named plaintiffs can only be deemed to have sued by themselves especially in the light of the subsequent filing of the 3839 names in apparent fulfillment of their reference to 'ors' or 'others'. It seems to me that if the five named plaintiffs had indeed set out to sue in a representative capacity the mere filing of the so called comprehensive list without any "explanation would not regularize the situation. Were they actually suing in a representative capacity it would have sufficed for the five to state their names with the addition that they were 'suing by themselves and for the 3839 others'. If the others were rather 4195 the same would be stated clearly on the writ or statement of claim whichever is appropriate. They could also have sued individually and on behalf of others similarly situated. (See Hussey v. Edah (1992-93) GBR 1703 per Hayfron-Benjamin, JSC at 1705).

When the five named plaintiffs and the 'others' filed their writ of summons on 11th July 2003 it was not until 8th April 2004 that the so called full list of plaintiffs was filed. The full list incorporated or introduced some three thousand eight hundred and thirty-nine (3839) names together with five (5) other names designated as 'group leaders', thus bringing the total number to three thousand eight hundred and forty four (3844) persons. Put in another way, the last five names on the full list were designated as 'group leaders'. Let me first comment on the 'group leaders' before dealing with the rest of the list whether the same complies with the rules. The first observation is the lack of consistency. In the original list there was no mention or reference to 'group leaders'. The five original plaintiffs appeared in their own right and not as leaders or any such thing. The other significant observation about the writ is the inclusion of the words 'ors'. The next is that the names of the five on the original writ cannot be said to be the same as those given as 'group leaders'. The five original names were: Clement Agbesi, Albert Agboado, Emmanuel Okrah, Iddrisu Inusah and Baba Tunde Marichi as 1st to 5th Plaintiff respectively. The names of the 'group leaders' filed on 8/04/2004 were: Clement Agbesi, Mohammed Okrah, Tondi Zabrama, Iddrisa Inusa and Albert Agboado. It is not clear what counsel for the plaintiff sought to achieve by filing the names of the so called 'group leaders' which names apart from those of Clement Agbesi and Albert Agboado which two are common to both lists introduces different persons as leaders. Was it intended to replace the original five or what? Why were the names of the five group leaders filed together with the 3839 other names if they were not intended to be players in the suit? The mere filing of the so called comprehensive list of plaintiffs referred supra certainly derogates from the rules on 'parties' which require that the statement of claim and the writ should correspond "in the names of the parties, in the number of the parties and in the characters in which they sue and are sued; a mere misnomer may be corrected in the statement of claim, but the writ should be amended before judgment." See The Annual Practice 1956 page 455.

The defendant entered appearance to the writ on 22nd July 2003 and proceeded to file their statement of defence on 30th October 2003. Since the so called full list of plaintiffs had not been filed by the time the defendants filed their defence within the times permitted by the rules it stands to reason that they should have applied to set the list aside or amend their defence which they failed to do. This does not render the plaintiffs' steps right. The filing of the so called full list of plaintiffs together with the group leaders to me constituted an amendment to the writ which should be carried out in conformity with the rules. Under the rules if a writ is defective owing to an omission, but not void ab initio such defect is cured by filing a proper statement of claim. See Hill v. Luton Corporation (1951) 2 K.B. 387, CA. It is trite to state that after service, a writ can only be amended in accordance with the rules. Order 28 rule 2 of LN 140A provides that the plaintiff may without any leave, amend his statement of claim, whether indorsed on the writ or not, once at any time before the expiration of the time limited for reply and before replying, or where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared. It is therefore clear that at the time the plaintiffs' counsel filed their so called full list of plaintiffs thereby amending the 'party or parties' they were obliged to obtain the leave of the court because the appellants had long filed their appearance to the writ, but this they failed to do. As it stands, in so far as no leave was granted by the court to add the 3839 names on the list plus the five group leaders or some of them as plaintiffs, the words 'ors' on the writ remains a meaningless addition to the writ. The 3839 names are therefore total strangers to the writ. The 3839 applicants have enmeshed themselves in a comedy of errors which cannot easily be brushed off in view of the serious implications they have on the other party. The right steps must be taken. They were obliged to follow the rules and not reel in wishing off their mistakes. This court in its desire to do justice is guided by the rules of court.

In the case of Gihoc Distilleries Co. Ltd v. Ms Sherry Ayittey H1/196/2004 delivered on 24th March CA (unreported) this court in determining the scope of order 28 of LN 140A stated that: " ... the rule even permits amendments no matter how negligent or careless the first omission was and however late the proposed amendment provided it can be done without injustice to the other side. This is captured in the case of Clarapede v. Commercial Union Association (1883) 32 WR 262 at 263...... Yet another reason that makes the grant of amendments imperative is so that the real substantial question can be raised between the parties to avoid a multiplicity of legal proceedings. Cotton L.J stated the principle forcefully in Kurtz v. Spence (1887) 36 Ch. D. 774 thus:

"When by an amendment the real substantial question can be raised between the parties, ought we to refuse to allow the amendment, having regard to the rule, and to the direction in the Judicature Act that as far as possible in any proceeding all questions between the parties shall be decided so as to prevent a multiplicity of actions? I have come to the conclusion, and Lord Justice Bowen agrees with me, that it would be better (if we can do it without injustice to the defendants) to allow that amendment to be introduced, rather than to leave the plaintiffs to the liberty which we gave them on the application for leave to appeal, of having the action dismissed without prejudice to their right to bring another action".

[Underlined for emphasis.]

The peculiar nature of the present presentation is the lack of clarity about who are what about the names on the record. If the writ were to be amended suo motu by the court, would it be to substitute the new leaders on the 8/4/2004 list in the place of the original five named plaintiffs or what, and what would inform the choice of the court? What about those listed names that do not bear any staff numbers and/or periods of service or amounts collected? A quick count from the attached list indicates that sixty four (64) persons did not provide their periods of service; two hundred and eighteen (218) provided no staff numbers while five hundred and forty-two (542) did not indicate the amounts collected. Certainly in a situation like this in which the respondents have not even in this court prayed for an amendment, any consideration for an amendment at this stage, given the circumstances narrated supra will work injustice to the appellants hence no amendment will be made to incorporate the 3839 names as plaintiffs. Besides, I find the case of Konadu v. Ntoah (1971) 1 GLR 318 apposite as I find the defect occasioned by the plaintiffs' failure to serve a notice of motion or file any motion at all for the capacity of the plaintiffs to be changed and for the 3839 or so persons to be joined as plaintiffs to be so fatal that it will not be fair exercise of this court's discretion under order 70 rule 1 to waive the irregularity especially as defendant is entitled to be served with such a motion to appear and raise such objections as may be open to them. See also the case of Wadad Haddad Fisheries v. S.I.C (1973) GLR 501. Consequently I find the steps taken in filing the 3839 names for the purpose of joining same in the suit as plaintiffs unwarranted by the rules and also not worthy of the exercise this court's discretion under order 70 rule 1. The purported joinder is hereby set aside.

On 3rd June 2005 the respondents repeated an application earlier withdrawn, praying that an additional three hundred and fifty six (356) persons be joined as plaintiffs in the suit. The application was supported by an affidavit deposed by Clement Agbesi which states the following:

"1. I am the deponent herein and one of the five named plaintiffs on the writ in this action and I have the authority and consent of my other named colleagues to depose to this affidavit on our joint behalf.2. That in this suit what was said to be the full list of plaintiffs was filed on 8/4/2004.3. That unfortunately, what was said to be the full list of plaintiffs omitted the names of some of our colleagues who were also cheated and exploited by the defendant and these persons have a similar interested cause of action as the plaintiffs in this case.4. That in all, the names of 356 persons were inadvertently omitted and not added to the list.5. That it is the prayer that these persons be joined as plaintiffs in this suit.

The affidavit supra is quite revealing. It recognized that at the time material [sic] the writ was by the five named plaintiff of which the deponent was one. This affidavit was filed on 3rd June 2006 two clear years after the purported joinder of the 3839 plaintiffs whose list was filed on 8th April 2004. That being so why did Clement Agbesi limit his consent to depose to that affidavit to only the five named plaintiffs? What had become of the 3839 others? Was their consent not equally needed? Be that as it may, the court on 22nd June 2005 granted the application in the following words:

"Application granted. Consequently the Court orders the applicants whose names appear on the documents captioned RESOLUTION and Exhibited as CA1 and numbering 356 be joined to this suit as Plaintiffs. By this order the title of the suit should now include the names of the new applicants as Plaintiffs. The court further orders that each applicant be served with copies of the processes filed so far. Let the suit be adjourned to the 24th June, 2005.”

In spite of the clear directives of the court the applicants failed to take the necessary steps to comply with the requirements of the rules of court and thereby join the 356 as plaintiffs. By this order of the court, the writ ought to be amended accordingly and if any pleadings have already been served they would also probably also need amendment to show title in the new plaintiffs. SeeKonadu v. Ntoah (1971) 1 GLR 318. This is necessitated by the fact that the amended writ becomes essentially a fresh writ thus giving the defendant (appellant) the opportunity to amend its defence. See The Supreme Court Practice 1995 page 222 to 223 paragraph 15/8/7. The failure to comply with this essential procedural requirement deprived the 356 persons the opportunity of being plaintiffs as such. It was therefore wrong for the trial judge to grant them a status they had not properly acquired. Consequently the judgment entered for the 356 persons as plaintiffs is unsupportable and the same is set aside.

In my view, quite apart from the failure of the five plaintiffs to have formally applied to the trial court for the 3839 persons to be joined as plaintiffs and their subsequent failure to take the necessary steps to comply with the orders of the trial court and thereby join the 356 also as plaintiffs, the cumulative effect of all these irregularities is to make the trial with the 3839 and 356 persons also as plaintiffs wholly unsatisfactory and thereby entitle the appellant herein ex debito justitiae to have the purported joinders set aside as void under the provisions of order 70 r. 1 of LN 140A contrary to the submission of counsel for respondents that order 81 of CI 47 can be prayed in aid to validate their floundered steps.

In the interest of justice the 3839 and 356 must be returned to the positions they held or occupied prior to the commencement of the action with liberty to institute fresh action against the other for whatever reliefs they may deem proper.

Grounds (iii), (viii), (x) and (xvii).

Under these grounds the appellant denounces the trial judge's decision that the appellant acted illegally and unlawfully in treating the plaintiffs as non permanent employees "for all the periods of plaintiffs employment with the defendant' as being erroneous in view of the lack of evidence on record of the period of employment of each plaintiff. For my part given the issues thrown up by the the first set of grounds dealt supra and the conclusions therein reached, I find it unnecessary to determine the merits of the present grounds especially pertaining to the 3839 and 356 persons sought to be joined in this matter.

I will therefore consider the import of these grounds in relation to the five named plaintiffs (respondents) in the light of my foregoing conclusions that they were deemed to have sued in their own right. The five plaintiffs elected one Mohammed Okrah to testify on their behalf. This representative of the plaintiffs claims to be a co-plaintiff in the suit. This of course is not borne out by the writ hence it presents some difficulty. None of the five plaintiffs bears the name Mohammed Okrah. The names of the five plaintiffs on the writ of summons, the addendum to the writ and the statement of claim are found on pages 1, 2 and 4 respectively of the record of appeal and bear the following names: "1. Clement Agbesi. 2. Albert Agboado. 3. Emmanuel Okrah. 4. Iddrisu Inusah 5. Saba Tunde Marichi and ors." There having been no amendment nor correction of any of the names endorsed on the writ, I find myself unable to accept Emmanuel Okrah in the endorsement as being one and the same as the Mohammed Okrah who testified in court. Even though the surnames are the same the fact of a difference in the first names is quite significant. Historically Emmanuel is to the bible as Mohammed is to the Koran which two are not the same. I do however concede that the plaintiffs are at liberty to be represented in court by anybody provided this fact is shown to the court. None of these seems to be the case here. It is therefore not correct that the plaintiffs' representative was the same as the 3rd plaintiff in this case as he claimed. These comments and observations would certainly have been unnecessary were it the case that the plaintiffs were not legally represented in the court below. Unfortunately this witness did not testify to the precise periods of service of each plaintiff he sought to represent as the basis for determining whether or not the defendant was in breach of the terms of the CBA on the issue in contention that after 154 days of continuous engagement a casual worker should be deemed a permanent worker. Sadly enough the information accompanying the so called full list of plaintiffs bears no evidential value for the consideration of the court, the same not having been filed pursuant to an order or leave of the court. It is also a sad commentary that of the five plaintiffs only the 1st plaintiff testifying as PW1 Clement Agbesi for himself stated that he once worked for the defendant as a casual worker for six (6) years without any break which work he stopped doing in September 2002. There was no denial of the witness's testimony in cross-examination hence I have no hesitation in arriving at the conclusion that the 1st plaintiff having worked in excess of the 154 days stipulated in the CBA qualified to be converted from the casual worker status to that of a permanent worker and the defendant ought to have conferred this on him. The 1st plaintiff is accordingly entitled to damages for breach of the provision of the CBA which required that his services be converted from casual into permanent after 154 continuous working days in a year (See article 19 (2) (ii) of exhibit B (page 368 of appeal record). By the failure of the defendant (appellant) to comply with this provision they had clearly violated the agreement they entered with the union of which the 1st plaintiff was a member. It is my view that under these circumstances the 1st plaintiff is entitled to damages which award should make it unnecessary for a separate award of any compensation since the damages would take care of the breaches of the plaintiff's rights. I therefore enter judgment for the 1st plaintiff as follows:

(i) I order that the 1st plaintiff be paid the salary, allowances and benefits or the equivalent in cash, paid to permanent staff of his grade to be calculated from immediately after the 154th working day of the date of his first engagement with the defendant/appellant until he stopped work in September 2002. The full sum arrived at to be paid less the sum already paid to him.

(ii) As regards what other benefits and/or payments are due the 1st plaintiff on his stoppage of work in September 2002, the 1st plaintiff did not lead any evidence on his age which is an essential requirement that would enable this court to determine his placement under exhibit G and to direct accordingly. In the circumstance I order that the defendant/appellant ascertains from the 1st plaintiff's personal file and pay what is due him under exhibit G.

(iii) The 1st plaintiff is also entitled to general damages of five million cedis for breach of the CBA.

(iv) I allow interest on all sums due the 1st plaintiff at current bank rate from 1st September 2002 to 18th January 2006, i.e. the date of the judgment.

The four remaining plaintiffs, to wit, the 2nd, 3rd, 4th and 5th plaintiffs failed to discharge their evidential burden by their failure to lead sufficient evidence to avoid a ruling against each of them As plaintiffs in a civil action, the burden of persuasion was on each of them to prove that the defendant had breached the CBA in respect to each of them for which reason they were entitled to judgment. See s. 10 and 12 of NRCD 323. It is trite to state that in civil cases the burden of persuasion usually lies on the party with the right to begin; that is to say the person who has an issue to present to the court and for whom there would be no remedy unless he tells the court what his claim is about. That was the position of each of the 2nd, 3rd, 4th and 5th plaintiffs but they failed to discharge their respective burdens hence they are not entitled to judgment. Consequently I find no justification whatsoever for the judgment entered in favour of the 2nd, 3rd, 4th and 5th plaintiffs against the defendant and hereby set same aside.

Grounds (ii), (iii), (x), (xi) and (xvii)

In view of my conclusions arrived supra nothing useful will be served in dealing with these grounds as the crux of what they raise has already been dealt with.

There will be no order as to cost.

J.B. AKAMBA.

(JUSTICE OF THE COURT OF APPEAL)

QUAYE, J .A

I agree.

G. M. QUAYE

(JUSTICE OF THE COURT OF APPEAL)

ADDO, J.A. (DISSENTING)

This is an appeal against the decision of the High Court; Tema presided over by G. K. Mensah J. The judgment was delivered on the 18th Day of January, 2006. The trial Judge gave judgment in favour of Plaintiffs/Respondents and the Defendant/Appellant not satisfied with this turn of events, has appealed to this honourable Court asking that the judgment be set aside.

The judgment given in favour of the Plaintiffs/Respondents ordered the following:—

"1. ¢5,000,000.00 to each Plaintiff as damages for breach of the Collective Bargaining Agreement.2 ¢10,000,000.00 to each Plaintiff for each year of service after the expiration of 154 days continuous working by the Plaintiffs in the employment of Defendant as compensation for Defendant's illegal conduct in keeping Plaintiffs as casual workers and breach of Plaintiffs' economic rights under the 1992 Constitution and discrimination against the plaintiffs contrary to the 1992 Constitution.3. Severance awards consisting of:—Three (3) months salary for each year of service. ¢3,000,000.00 payment in lieu of rent. ¢2,000,000.00 as medical allowance. ¢1,500,000 for transport to convey belonging. Five (5 months salary as handshake. Two bags rice. Two gallons of oil. Year 2001 bonus for those who qualify. Long Service allowance to those who qualify. Interest on all the sums due to each Plaintiffs at current commercial Bank rate from 1st October, 2002 to date of Judgment. 10 million Cedis as costs."

Dissatisfied with this decision the Appellant has appealed to this Honourable Court against the said decision on several grounds.

It is about seventeen (17) grounds of Appeal. The grounds of Appeal are set down as follows:

1. The judgment in favour of 3839 plaintiffs was in error as only five names appear in the writ of summons as plaintiffs.

2. The findings that 3,839 Plaintiffs instituted the action herein, and that 356 were joined subsequently is not supported by the record.

3. The finding that the defendant acted illegally in treating the Plaintiffs as non-permanent employees "for all the periods of Plaintiffs' employment with the defendant was in error, there being no evidence on record of the period of employment of each plaintiff.

4. The trial judge wrongfully equated a non-permanent worker with a permanent worker under the Collective Bargaining Agreement wherein the tenure of employment of the former is casual and determinable at the close of each day.

5. The trial judge misconstrued and misapplied the Collective Bargaining Agreement in its entirety to the plaintiffs' whose tenure of employment was temporary, casual and determinable at the close of each day.

6. The trial judge erred that the plaintiffs, as non-permanent workers were entitled to severance pay although the plaintiffs as non-permanent workers suffered no severance on account of the casual nature of their employment.

7. The findings that the severance package paid to the plaintiffs was not negotiated is against the weight of evidence.

8. The finding that the defendant had breached the Collective Bargaining Agreement was erroneous, there being no evidence on record that any of the Plaintiffs had worked satisfactorily for 154 days in any year so as to qualify for upgrading as a permanent employee.

9. The trial judge misinterpreted the Collective Bargaining Agreement in holding that the defendant was obliged to engage on a regular basis a casual employee who had worked for 154 days.

10. The trial judge's finding that the plaintiffs had qualified for employment as permanent employees was against the weight of evidence on record.

11. The finding that all the plaintiffs had continuously worked for "periods between one (1) year and ten (10) years" is against the weight of evidence.

12. The finding that the defendant had discriminated against the plaintiffs was against the weight of evidence on record.

13. The finding that the defendant had violated the provisions of 1992 constitutions or the Collective Bargaining Agreement is erroneous and unsupportable under the constitution or the agreement.

14. The Judgment is uncertain and leaves various matters yet for determination.

15. The award of damages is baseless in law.

16. The interest awarded is not supportable in law.

17. The judgment is against the weight of evidence.

The Plaintiffs/Respondents by their writ of summons accompanied by a Statement of Claim filed on 11/7/2003 claimed against the Defendant/Appellant the following reliefs:—

1. Damages for the breach of the provision of the Collective Bargaining Agreement between the Parties.

2. An award of compensation by the Court to the Plaintiffs to be paid by the Defendant for its illegal conduct in keeping the Plaintiffs as casual workers and breaching Plaintiffs' economic rights under the 1992 Constitution and also discrimination against the Plaintiffs contrary to the provisions of the 1992 Constitution.

3. An order that the same compensation packages given to the various categories of permanent employees as compensation for the severance of employment resulting from the same re-organization of the Defendant, be made applicable to the Plaintiffs OR in the alternative that the Defendant negotiates with the Plaintiffs the appropriate compensation payable to the Plaintiffs.

4. Interest on all sums found due the Plaintiff at the Commercial Bank Rate from 1st October, 2002 to date of judgment.

5. Costs.

I now recapitulate briefly the facts of this case which have given rise to this Appeal. The Plaintiffs were employed at various dates by the Defendant and worked, they claimed for various periods ranging from one year to ten years. Upon their appointment they were said to be casuals or non-permanent staff. And they continued to be viewed and treated as casual or non-permanent staff until sometime in September, 2002, when as a result of "re-organization" by the Defendant, the employee-employer relationship between the parties was broken and all the plaintiffs were laid off.

The plaintiffs were all given staff numbers by the Defendant and Social Security contributions were deducted from the pay at source. The Plaintiffs said they were paid leave allowance and annual bonuses payable to the permanent workers but although they did same kind of work as the permanent workers in the various departments of the Defendant, the Plaintiffs were paid lower remuneration than the permanent staff because they were supposed to be casuals according to the Defendant. The Plaintiffs were at all material times members of the Maritime and Dock Workers' Union and the relationship between the Plaintiffs and Defendant's was governed by Collective Bargaining Agreements negotiated at various times between the Maritime and Dock Workers' Union and the Defendant.

Sometime in September, 2002, as a result of the Defendant's re-organization, the Defendant terminated the services of the Plaintiffs without paying them any pay in lieu of notice or serving then any notice. The Plaintiffs allege that they were not paid any severance pay but were paid something meagre as a result of the termination which the Defendant described as golden handshake. The Defendant took the position that the Plaintiffs were not entitled to any severance pay. The Defendant however paid detailed severance packages to each of the permanent employees running into several millions of Cedis.

The Plaintiffs took the position that by the provision of the various Collective Bargaining Agreements negotiated on their behalf at various times during the course of their employment, they ought to have been made permanent employees after working continuously for the Defendant for periods of 154 days in a calendar year and if the Defendant could not absorb them as permanent employees they ought to have been placed on guaranteed wages equivalent to the monthly wages of the Plaintiffs' classified jobs. The plaintiffs/Respondents also insisted that the Defendant/Appellant paid them the same packages that were paid out to the permanent employees as severance awards since the Collective Bargaining Agreements were applicable to all employees without distinction. The Plaintiff's position is that by the provisions of the various Collective Bargaining Agreements, the Defendant/Appellant ought to have made them permanent employees or at least pay them the same salaries the permanent workers who were doing the same jobs as the Plaintiffs/Respondents in accordance with article 24(1) of the 1992 Constitution.

The Defendant/Appellant on the other hand insisted that the Plaintiffs were non-permanent employees or casuals and that the defendant/Appellant had no contract with them. Even the said golden handshake paid to the plaintiffs, the Defendant/Appellant maintained, was out of the largeness of the heart of the defendant/Appellant and that the Plaintiffs/Respondents deserved nothing. According to the Plaintiffs/Respondents, they made several representations to the Defendant/Appellant demanding to be paid the same severance packages as were paid out to their permanent colleagues who were doing the same jobs as Plaintiffs, all to no avail. The Defendant/Appellant remained adamant and this triggered off the action. The Court gave judgment in favour of the Plaintiff/Respondents and the Defendant/Appellant dissatisfied with the decision has appealed to this Court to set aside the decision.

The Appellant argued first ground (i), (ii), and Additional ground A. Under these grounds, the appellant argued that the trial judge erred in giving judgment for 3839 Plaintiffs plus 356 Plaintiffs as if they were parties in the action.

The Appellant submitted that the Plaintiffs/Respondents are not parties to the action. The Appellant argues that at the close of the respective cases of the parties, only five persons were on record as Plaintiffs in the action. The Appellant argues therefore that the list of persons filed by the Plaintiffs/Respondents after the issue of the writ of summons does not represent the parties in the action, and invites this Court to hold that they were never parties. Regarding the 356 persons added by the joinder, the Appellant argues they never became parties since they neglected to satisfy the procedural requirement that would make them parties. The Appellant cites rule 7 of Order 4 of C.I.47 and says until the writ is amended, a person joined as a Plaintiff would not become a party. The Appellant concluded its argument by saying that since the writ was never amended, the case proceeded without those persons in the full list as well as those 356 names in the misfired joinder proceedings. That being the case, the Appellant argued that it is not open to the learned judge to give judgment to those in the full list of Plaintiffs or those 356 names in the misfired joinder proceedings. The Appellant, therefore, invites the Court to set aside the proceedings in so far as it relates to those persons.

When the writ of summons was issued it was clear that five persons and other persons of the same group were suing. It was clearly indicated in the writ that others not on the writ were yet to come. So in point of fact when the Defendant entered appearance to the writ he knew or ought to know that it was confronted with not only five persons as Plaintiffs but more than five persons and they were all in the same group as former workers. These group of workers are according to paragraph 1 of the Statement of Claim are all former employees of the Defendant whose services were terminated without the service of any due notice as required by law by the Defendant/Appellant in September, 2002 as a result of a reorganizatien of the Defendant. The plaintiffs had been described as having a common cause of action grounded in the same facts and points of law.

This group of Plaintiffs is clearly ascertainable so the Defendant/Appellant cannot say they are net identifiable. The Defendant/Appellant indeed knew the sort of Plaintiffs it was facing. The Defendant/Appellant itself admits paragraphs 3 and 4 of the Statement of Claim which say that all Plaintiffs were employed at various times by the Defendant/Appellant and described as casuals or non-permanent employees. That the relationship between all the Plaintiffs and the Defendant/Appellant was governed by the various Collective Bargaining Agreements negotiated from time to time on behalf of the Plaintiffs/Respondents by the Maritime and Dock Workers Union. The writ which was issued emanated from all the Plaintiffs in a group not just the five whose names appeared on the writ.

As explained by counsel for the Plaintiffs/Respondents, only five names could be typed on the writ and the other Plaintiffs who were referred to as "others" were to be issued out in an addendum. The addendum to the writ clearly notified the Court and the Defendant/Appellant that full particulars of all the members of the group suing would be supplied to the court and this was duly done before the trial started and the defendant/Appellant did net see anything wrong with this procedure and fully participated in the proceedings to the end without raising an objection whatsoever. It is my respectful view that whatever was irregular with the issuance of the writ the defendant cannot now raise this matter in this court. Participating fully in the trial without raising any objection shows that the Defendant/Appellant has waived whatever right it has. I therefore agree with the trial Judge for coming to the conclusion that 3839 persons initiated the action on 11th July, 2003 and not five persons as the appellant seems to maintain. It is a group action where each member of the group was a party to the suit as a plaintiff.

I affirm the trial Judge's position that 3839 persons initiated the action as plaintiff as the right one. The appeal therefore fails on this ground. The Defendant/Appellant next raised the issue of the joinder of the 356 persons to the action and argues that although the order was made, the writ of summons was never amended therefore the 356 persons never became parties to the suit. Surely the Plaintiffs/Respondents erred here. Order 4 rule 7 says thus:

"A person ordered under this rule to be added as a party shall not become a party until the writ is amended in relation to the person under this rule and if the person is a defendant, the writ has been served on the person."

The plaintiffs filed no amendment to reflect the change in the title of the suit as demanded by order 4 rule 7. But according to order 81 of the High Court (civil procedure) Rules 2004 (C.I.A7) and the failure to amend the suit to reflect the joinder would not render the proceedings a nullity with respect to the 356 persons. This Court has the power to amend to make the 356 persons part of the plaintiffs and by the same token of amendment change the title of the suit. (see Ghana Ports and Harbours Authority v. Issoufou (1993 - 1994) I GLR 24, the Delta case (1998 - 1999) SCGLR 595 and article 137(3) of the constitution). I consequently use the power under the authorities cited above to effect the amendment to include the 356 persons as plaintiffs and to change the title toClement Agbesi and 4194 others, Plaintiffs/Respondents v. Ghana Ports and Harbours Authority Defendant/Appellant. This takes care of the said procedural errors of the Plaintiffs. The Appeal as regards grounds (i) (ii) and additional ground A therefore fails. I go now to the substance of the case. Arguing grounds (ii), (vii), (x), (xi) and (xvii) the appellant contends in respect of these grounds that there was no evidence on record to support the findings of the learned trial Judge that the Plaintiffs had worked for periods ranging from one year to ten years for the Defendant/Appellant and that the Plaintiffs/Respondents failed to give evidence to support the particulars of the employment with the defendant/appellant. The appellant also argued on behalf of the defendant/appellant that there was no evidence on record to show that each of the plaintiffs had worked satisfactorily for over 154 days continuously in a calendar year. The Appellant argued that the trial Judge misinterpreted the collective bargaining agreement in holding that the defendant/appellant was obliged to engage on a regular basis casual employees who had worked for 154 days. A close look at the pleadings will show that the Defendant/Appellant treated all the plaintiffs as casual employees for the whole period of their employment. The plaintiffs/respondents pleaded in paragraph 3 of their statement of claim in these terms: "(3) the plaintiffs were employed at various times by the defendant and described as casual or non-permanent employees and continued to work as such until the date of severance of plaintiffs' employment" and to this pleading the defendant/appellant responded in paragraph 2 of the statement of defence as follows: “the defendant admits paragraph 3 and 4 of the statement of claim. By this clear admission by the defendant/appellant, the plaintiffs/respondents need not lead any further evidence to prove that they had worked continuously for the defendant for the dates specified of their employment to the date of severance of their employment. At pages 201 and 202 of the record of appeal the defendants own representative admitted under cross examination that the plaintiffs/respondents had worked continuously for the defendant/appellant for the whole period of their employments. This is what took place in the court below:

"Q. These plaintiffs were not terminated after working for GPHA for one year?A. yesQ From the date of their employment none of them was terminated after working for six months for the defendant?A. Yes, that is correctQ. From their employment none of them was terminated until their severance with the defendant.A. Yes that is correct.Q. Plaintiff in their course of employment these sometimes worked more than twelve hours.A. Some of them."

It is obvious that none of the plaintiffs was terminated after six months and indeed none of them was terminated from the date of their employment until severance with the defendant. This piece of evidence shows clearly that all the plaintiffs/respondents worked continuously for the defendant/appellant for more that [sic] 154 days stipulated under the Collective Bargaining Agreement. The fact that none of the plaintiffs were terminated after six months as evidence on record showed that the plaintiffs worked satisfactorily for the defendant/appellant. So the requirement that the plaintiffs work satisfactorily for 154 days before conversion to permanent status was duly fulfilled by the plaintiffs therefore the defendant/appellant's failure to upgrade them to the permanent status was in breach of the C.B.A. Regarding this discrimination the plaintiffs suffered, the plaintiff's contention was that the defendant had discriminated against them in refusing to upgrade them to permanent employee status. There is also evidence on record to show that the plaintiffs did the same work as their colleagues who were permanent employees and paid less than their permanent status colleagues. At page 197 of the record of appeal, the defendant/appellant's own representative made the following admissions under cross examination:

"Q. Some of these plaintiffs worked as secretaries at GPHA?A. That may be correct.Q. Some worked as clerks and others as messengers?A. That may be correct.Q. These plaintiffs were paid monies less than those you said were permanent.A. Yes."

Further at page 198 of the records, this is what happened.

"Q. The plaintiffs worked for the same hours in a day as those you described as permanent staff.A. Yes.Q. At GPHA, there was so much work that sometimes they had to do overtime work.A. Yes.Q. The permanent employees also worked overtime.A. YesQ. For the overtime period, the permanent staffs were paid more than that of the non-permanent staff.A. Yes the reason is that the permanent staffs were paid monthly and the casual's day to day basis."

This in my view is clearly discriminatory and violates article 24 (i) of the constitution. So the complaint of the defendant/appellant that the findings of the learned trial Judge were not supported by the record is not correct.

I cannot fault the award of general damages by the trial judge. The defendant/appellant breached the Collective Bargaining Agreement and was liable to pay general damages for the breach. The award of damages was purely discretionary and has not been shown by the defendant/appellant that the discretion was wrongly exercised. On these grounds also the appeal fails and it is dismissed. The Appellant next argues grounds iv, v, xii, and ix. Under these grounds my view is that the plaintiffs became permanent employees and not casual employees upon the expiration of 154 days of continuous work for the defendant/appellant in one calendar year. The appeal on these grounds also fails and is dismissed. The next ground of appeal is ground viii. On this ground I cannot impeach the trial Judge in any way. Lastly, the appellant argues grounds xiv, xv and xvi. Regarding these grounds, the Appellant argues that the award of damages for the breach of the CBA appears to have no basis in law. The Appellant argues further that the learned judge did not show the basis of the quantum. The 5,000,000 cedis award to each Plaintiff was general damages for the Appellant's breach of the CBA. So the legal basis for the award seems to be grounded in the breach of the CBA. The Appellant next argues that there was over compensation; that once the Court had awarded damages for the Appellant's breach of the Collective Bargaining Agreement, there was no basis for all other awards. A look at the indorsement on the writ shows that Respondents first asked the Court to award damages against Appellant for breaching the Collective Bargaining Agreement. The second claim was to award compensation for the Appellant's breach of the Respondents' economic rights under the Constitution. The third claim was for the Court to order the Appellant to pay to the Respondents the same severance award the Appellant paid to those employees termed as permanent employees. The award of severance to the Respondents by the Court below was therefore proper and correct both in law and in equity. Regarding the argument that the awards were made across board, this cannot be correct. For each Plaintiff/Respondent’s payment will be determined by the number of years that each Respondent had worked in the employment of the Appellant. The trial judge’s award of severance to the Respondents cannot be faulted. Here too the appeal fails. The judgment in the Court below should not cover those who did not give their consent to be plaintiff. In this Appeal my approach has been to look more to the substance and the merits of the Appeal than to technicalities of procedure. It has been well said that they very first charge of a judge should be the discovery of truth and justice “not legalism, formalism and technical perfectionism”, what Lord Denning has described as “costly nonsense". On the whole I would dismiss the Appeal and affirm the decision of the court below.

E. A. ADDO

(JUSTICE OF THE COURT OF APPEAL)

COUNSEL

S. KWAMI TETTEH AND NARTEY-TETTEH FOR APPELLANT

A. ADAARE FOR RESPONDENT.