A.G.A. 2006 EARLY RETIREES ASSOCIATION SUING PER SAMUEL BOADU AND 85 ORS V. ANGLOGOLD ASHANTI GHANA

ANTHONY OPPONG, JA

On or about 18 March, 2015, the Plaintiff/Respondent (to be referred to simply as Plaintiff in this delivery) caused a writ of summons together with a statement of claim to issue against the Defendant/Appellant (also to be simply referred to as Defendant hereafter). I must say in parenthesis that I will soon refer to Plaintiff as Plaintiffs for reasons that will soon be unfolded in this delivery. The reliefs Plaintiff sought against Defendant were:

(a) Payment of redundancy award as earlier on agreed between the members of the plaintiff association and the defendant company acting per its Industrial Relations Manager

(b) Payment of interest on any amount payable by the defendant company under redundancy from December 2006 to the date of final payment

(c) Damages for breach of agreement

(d) Costs as the court may deem fit.

In paragraph one of the statement of claim, Plaintiff disclosed its capacity, namely that it is an incorporated association limited by guarantee with members having the common interest of pursuing their end of service benefits from their former employer, the Defendant. Plaintiff being a voluntary association disclosed that they have eighty six members and the names of these members were attached to the writ of summons. I can therefore confidently say that 86 persons mounted this action to vindicate their common interest against their employer.

The very first relief Plaintiff sought was quite expressive of the contention of Plaintiff that there was an agreement reached between members of plaintiff association and defendant whereby the latter had agreed to pay the members of plaintiff association redundancy award but, according to Plaintiff, contrary to the said agreement, members of plaintiff association were issued with early retirement letters with the aim of reducing the end of service benefits due the members of plaintiff.

In other words, it was the contention of plaintiff that the redundancy exit agreement was unilaterally changed by the defendant to what was termed “early retirement scheme”, thereby depriving the members of plaintiff association the full financial benefit they would otherwise have received.

In fact, it was the members’ efforts to address this alleged short change the defendant perpetuated to the detriment of the members of plaintiff that culminated in the formation of plaintiff to deal with the problem with one voice.

The members of plaintiff resorted to petitions and subsequently sought the intervention of the National Labour Commission but no succor was forth coming and so they were constrained to turn to the court of law.

The plaintiff contends further that prior to their exit from the defendant’s employment, the defendant had been served with an approval to carry out redundancy as part of its labour rationalization exercise and therefore members of plaintiff could not be compelled to leave the employment on “early retirement scheme” which said scheme was alien to the Collective Bargaining Agreement that existed between the parties herein.

The defendant did not admit nor deny the capacity in which the plaintiff sued but attempted to impugn the capacity by saying that a search conducted at the Registrar General’s Department revealed that the list of persons named as members of the plaintiff association are not registered.

The substance of the defence canvassed by the defendant disputing the claim of plaintiff was that it never entered into any agreement with members of plaintiff association to severe their employment relationship on redundancy package but rather the members of plaintiff willingly opted for early retirement and that those who did not opt for early retirement stayed on the job till retirement.

Furthermore, defendant pleaded limitation against the plaintiffs, contending that the cause of action of plaintiff accrued to it in 2006 and having failed to pursue same over the years, plaintiff’s instant action is barred from now being asserted under section 4(1)(b) of the Limitation Act, 1972 (NRCD 54).

After the trial, the learned High Court judge entered judgment in favour of plaintiff and granted members of plaintiff reliefs (a) and (b). Plaintiff’s claim for damages was dismissed.

Dissatisfied with the entire judgment of the trial court and seeking to reverse the decision dated 5 November 2018 and all consequential orders thereon, the defendant filed a notice of appeal on the 30 January, 2019 (found at pages 282-284 of the record of appeal). The grounds of appeal were:

 (1)The judgment is against the weight of evidence

(2) The learned judge erred in law by finding that the commencement of the action after the limitation period was justified by defendant’s conduct

Particulars of error

a. Finding that limitation was waived by defendant’s conduct

b. Finding that limitation period did not run in the absence of any of the statutory exceptions

(3) The learned judge erred in holding the plaintiff had capacity to commence the action on behalf of the 86 annexed former employees without amending the writ of summons

Particulars of error

a. Upholding the capacity of the plaintiff to sue on behalf of 86 employees contrary to the endorsement on the writ of summons

b. Upholding the capacity of the plaintiff to sue on behalf of 86 employees without any legal basis

c. Upholding the capacity of a guaranteed compony to sue in the name and on behalf of non-members

(4) The finding of an agreement to declare the representatives of the plaintiff redundant was not supported by the conflicting oral evidence of the first plaintiff witness and the 2 plaintiff witness and in the face of two documentary pieces of evidence on record

(5) The finding of an agreement to declare the representatives of the plaintiff redundant is not supported by statute and conditions of service

(6) The learned judge erred in ordering the payment of redundancy in the absence of clear evidence of declaration of redundancy in respect of the plaintiff

Particulars of error

Ordering the payment of redundancy pay in the absence of a valid declaration of redundancy in accordance with statute and conditions of service.

I would crave indulgence to tackle grounds two and three relating to capacity and limitation and then tackle grounds one, four, five and six together as grounds four, five and six can be subsumed under ground one, namely that the judgment is against the weight of evidence.

It is evident on record that the defendant attacked the competency of the action mounted by plaintiff herein by way of motion filed under Order 11 Rule 18(a) and (b). The trial court then constituted by a judge other than the one who delivered the judgment in this case identified two issues for determination at that stage. Those issues had to do with first the capacity of the plaintiff to institute the action and second the statute of limitation. The trial court ruled on the issue of capacity thus:

“The capacity in which the plaintiff brings the present action is well stated in the title of the case and only further explained in the statement of claim. The title of the plaintiffs as stated in the writ of summons reads: AGA 2006 Early Retirees Association suing per Samuel Boadu and 85 Others as per the attached schedule”. The attached schedule consists of 86 named persons. These are the persons who have instituted the action”

The learned judge on the capacity issue continued his ruling thus:

“All the 86 persons named as plaintiffs have a common interest in the case. I think therefore that it is a matter of convenience for them to come together as an association. Even if I am wrong in my final conclusion, I think the title of the case can be amended in the course of the proceedings”

At the end of the trial, the trial court did not see any justification to depart from this view and in fact at page 268 of the record, the position stated by His Lordship Adzagli J was adopted by His Lordship Gyamfi Dankwa J.

The appellant, even though, did not exercise its right of appealing against this ruling if it were dissatisfied, it has argued strenuously in this appeal that the position taken by the trial court on this issue of capacity is wrong in law.

As remarked earlier, the capacity in which plaintiff sued the defendant was disclosed in paragraph one of the statement of claim and it was that it is an incorporated association limited by guarantee with the members having a common interest of pursuing their end of service benefits from their former employers (the defendant herein), quite apart from the fact that on the endorsement of the writ of summons plaintiff indicated that it was suing per Samuel Boadu and 85 others. Essentially paragraph one of the statement of claim was neither specifically denied nor admitted. What the defendant stated in paragraph two of the statement of defence was that:

“2. The defendant is not in a position to admit paragraphs 1 and 2 save to say that all the named plaintiffs were former employers of the defendant company who voluntarily retired in December 2006” (Emphasis mine)

It may be observed therefore that, on the pleadings, no issue was joined by the parties on the issue of capacity of plaintiff to sue. Plaintiff in the circumstance was not required to prove capacity. No wonder, capacity was not set down as a preliminary issue for determination nor was it even set down as one of the issues for trial.

Nevertheless, to the extent that the action was actually instituted by Samuel Boadu and 85 others whom defendant admit are former employees who voluntarily retired which retirement had become the main bone of contention in this case regarding its propriety or otherwise, coupled with the fact that all the 86 names were listed and attached to the writ of summons, this court is enabled to  suo motu amend the name of the plaintiff on the writ by deleting the name “AGA 2006 Early Retirees Association” and substitute therefor “Samuel Boadu and 85 others”

This step is in accord with Order 4 Rule 11 of the High Court (Civil Procedure) Rules, 2004 (C.I.47) which provides:

“Where numerous persons have the same interest (such as in this case) in any proceedings, other than proceedings mentioned in rule 13 of this Order, the proceedings may be commenced, unless the court otherwise orders, continued by or against any one or more of them as representing all or as representing some of them”

Ground three relating to the capacity of plaintiffs to sue and the particulars stated therein will be dismissed as having no merits. 

It has already been mentioned that defendant in an application seeking to remove the plaintiff in limine from the judgment seat, attacked plaintiff’s action on the basis that the action was caught by limitation.

On this issue, the court below took the position that:

“I find from the plaintiff’s statement of claim that the plaintiffs were allegedly retired sometime between October and December, 2006. The plaintiffs took up the matter and attempted to use internal grievance procedures without success. It was when the internal grievance resolution measures failed that they resorted to court action. In such a case, time will not run whiles the grievance procedures were being pursued”

The trial court concluded that in the circumstances of this case, plaintiffs were not caught by the provisions as contained in the Limitation Act, 1972 (NRCD 54).

The objective of NRCD 54 is to bar actions where a plaintiff to whom a cause of action has accrued does nothing for a certain period of time. In other words, it is a statute that crystalizes public policy whereby provision is made for the automatic termination of a litigation after a fixed period of time. Essentially, it is a statutory restatement of the position of the common law and equity that the law helps the vigilant and not the indolent. Evidence abounds in this case to show that plaintiffs were not indolent and to a very large extent defendant’s representations to plaintiff to wait makes it unconscionable for the same defendant to plead limitation against plaintiffs.

It is undisputed that the plaintiffs were retired in December 2006. While the plaintiffs were within the statutory period to sue, they petitioned the defendant for redress of their grievance. In response to the said petition, the defendant  urged the plaintiffs to be patient and wait till the determination of a law suit involving the defendant and AGA 2007 Early Retirees Association. The relevant portion of the letter (Exhibit AGA2) defendant wrote in response to the petition of plaintiffs found at page 31 of the record reads:

“Without such move, however, I regret to inform you that I am unable to attend to your petition. I advise that you wait patiently for the final determination of the law suit” (Emphasis mine)

I therefore tend to agree with the trial court that in the circumstance of this case, the court would be supporting  fraud if the court were to hold that the plea of limitation avails the defendant as fraud vitiates every thing even including the most solemn judgments of courts of competent jurisdictions.

Accordingly, ground two relating to limitation will also be dismissed.

An appellant who alleges that a judgment is wrong because it is against the weight of evidence assumes the duty of clearly and properly demonstrating from the record the lapses in the judgment.

The gravamen of appellant’s case was that there was no agreement between the parties to sever their employment relation through redundancy while the plaintiffs contended that there was such an agreement. It was the appellant’s case that the agreement that was reached rather was to severe relationship through early retirement.

On the evidence as a whole, it appears that it is the position of the plaintiffs that is supported by the preponderance of the probabilities.

Exhibit AGA 5A appearing at page 137 of the record of appeal shows clearly that in 2006, plaintiffs secured approval from the Chief Labour Officer for the implementation of the labour rationalization/severance exercise whereby 850 employees of the appellant were to be declared redundant. This AGA 5A followed the agreement the appellant reached between management and the Ghana Mine Workers Union.

Besides this significant documentary evidence very supportive of plaintiffs’ case relating to the agreement to severe working with appellant through redundancy whereby the severance pay of plaintiffs was stated as 25% of annual basic for each completed year of service and pro-rata for a fraction of a year’s service, golden handshake, provident fund, accrued annual leave, repatriation allowance and one month pay in lieu, (See Exhibit AGA 5A), both Samuel Kojo Boadu and Abdul Zachari Mumuni who testified for themselves and for plaintiffs emphasized that the Industrial Relationship Officer met the plaintiffs individually and agreed that their relationship with the appellant would be severed on redundancy.

The appellant per Percy Baidoo in his evidence appearing at pages 75 to 77 of the record of appeal wanted the trial court to believe that it was the plaintiffs who opted for early retirement and they were accordingly served with letters. That evidence appears unsupported vis a vis the evidence that plaintiffs were declared redundant.

As rightly pointed out by the learned trial judge, Exhibit AGA 5A which commands much weight being documentary evidence as against oral evidence, did not mention early retirement. Any rate why would plaintiffs exit their employment through early retirement as against redundancy when the card was so clear that they would receive better pay package with respect to the latter than the former?

It must also be mentioned that the exit through redundancy accorded with what is contained in the Collective Bargaining Agreement (CBA), Exhibit 2 appearing at pages 79 to 126 of the record of appeal, which legally binds the parties. For the binding effect of CBA one may refer to section 105(4) of the Labour Act, 2003 (Act 651) which states:

“The rights conferred on a worker by a Collective Agreement shall not be waived by the worker and if there is  conflict between the terms of a Collective Agreement and the terms of a Contract not included in the Collective Agreement, the Collective Agreement shall prevail unless the terms of the Contract are more favourable to the worker; and it is immaterial whether or not the Contract was concluded before the Collective Agreement”

As rightly pointed out by the learned trial judge, the modes by which an employee may leave the service of the appellant as provided for in Exhibit 2 at page 270 of the record of appeal did not include early retirement. However, it includes voluntary retirement but even here it is further provided that “an employee who wishes to retire voluntarily shall give the company (the appellant) three months notice”

The learned trial judge then rightly reasoned thus:

“As earlier stated there is no such mode of retirement as early retirement. What the condition state in the CA (CBA) is voluntary retirement and since this mode of exiting must be at the instance of the employee, he/she is to serve a three months notice on the employer that he/she wanted to exit through voluntary retirement. The question then is, if the plaintiff association members (plaintiffs) took the decision to exit through voluntary retirement, where is the three months notice served on the company by the plaintiff’s association members?”

Indeed, looking at the CBA, Exhibit 2, it becomes clear that early retirement is alien. And one cannot consider early retirement as synonymous with voluntary retirement in this context when the condition precedent, the employee applying is totally absent. That is to say if we are talking of early retirement, at least there should be evidence pointing out clearly that plaintiffs gave written notice to retire before their retiring age.

In conclusion, I am of the view that the appellant failed to demonstrate where the trial judge erred both on the facts and the law. The appeal therefore fails in its entirety and same is dismissed.

SGD

JUSTICE ANTHONY OPPONG

 (JUSTICE OF THE COURT OF APPEAL)

I agree

SGD

JUSTICE I. O. AMADU TANKO

(JUSTICE OF THE SUPREME COURT SITTING AS ADDITIONAL JUSTICE OF THE COURT OF APPEAL)

I also agree

SGD

JUSTICE HENRY A. KWOFIE

(JUSTICE OF THE COURT OF APPEAL)    

COUNSEL

EYRAM AKYAA ANSAH FOR THE APPELLANTS

WILLIAM KUSI FOR THE RESPONDENTS