EVANS DONKOR AND JONATHAN FAARA ALI & 113 OTHERS V. ANGLOGOLD ASHANTI (GHANA) LTD, OBUASI

JUDGMENT

POKU-ACHEAMPONG, J.A.

This is an appeal against a judgment of the High Court, Obuasi dated 11th October, 2018 in a  labour dispute involving the issue of payment of redundancy package to the Plaintiffs. 



Per their writ of summons issued on 10/04/17 the 115 Plaintiffs sought the following reliefs  against the Defendant Company: 

a. A declaration that by the acts and conducts of the Defendant, it has terminated the  appointment/employment of the Plaintiffs and as such the Plaintiffs are entitled to  their package in accordance with their Collective Bargaining Agreement with the  Defendant. 

b. A declaration that the package the Defendant paid to Plaintiffs sometime in 2013 fall  short of what the Plaintiffs are in fact entitled to as provided under the Collective  Bargaining Agreement. 

c. A declaration that the ruling of the National Labour Commission (NLC) dated 20th August 2008 in respect of a petition the Plaintiffs’ brought against the Defendant  herein did not terminate the appointment/employment of Plaintiffs.

d. An order of this Honourable Court compelling the defendant to pay to the Plaintiffs  their redundancy or severance package calculated from the date of employment to  November 2012 in accordance with their Collective Bargaining Agreement. 

e. Any other relief the court may deem fit to make. 

Case of Plaintiffs 

The Plaintiffs case is that they are all former employees of the Defendant Company – a  multinational mining company operating in Obuasi. They claim that their employment was  governed by a Collective Bargaining Agreement (CBA) between the Defendant and the  Ghana MineWorkers Union (GMWU). It is the case of the Plaintiffs that sometime in 2004  the Defendant decided to transfer them from Anglogold Ashanti Ghana’s administrative  management to the administrative management of the Mining and Building Contractors Co.  Ltd (MBC) a department of the Defendant. In response to this they requested Defendant for  payment of a redundancy package in accordance with their CBA since per that decision their  appointment was being terminated involuntarily, but the Defendant declined their request. 

They therefore petitioned the National Labour Commission (NLC) which on 20/8/2008 decided in their favour. The Defendant appealed against the decision of the NLC to the High  Court (Labour Division) in Accra and the Court affirmed the decision of the NLC and  ordered the Defendant to pay interest on the amount awarded them. The Defendant however  failed to comply with the judgment and appealed to the Court of Appeal. 

The Plaintiffs claim that the Defendant rescinded its decision to transfer them to the  administrative management of MBC so they continued to work for the Defendant under the  same conditions until sometime in November 2012, when the Defendant stopped payment  of their salaries, social security contributions and other entitlements and paid them a package  in 2013. 

Plaintiffs claim that the package paid them in 2013 falls short of what is stated in their C.B.A.  with the Defendant and all efforts to get the Defendant to pay them their due package have  been unsuccessful, hence their action. 

The Plaintiffs claim further that the decision of the NLC dated 20/8/2008 did not terminate  their employment with the Defendant. 

The Defendant Company in its defence filed on 24th May 2017 denied the claims of the  Plaintiffs. The case of the Defendant is that in 2004 it took a decision and actually transferred  the Plaintiffs “administratively” to the Mining and Building Contractors (MBC) Co. Ltd, a Limited Liability Company independent of the Defendant pursuant to a contract executed  between the Defendant and MBC. Defendant contends that MBC was at all material times  an independent contractor with a separate existence from the Defendant.  

Defendant avers that the NLC in its ruling on the Plaintiffs’ petition decided that the circumstances of the Plaintiffs’ transfer by Defendant to MBC amounted to severance of their contracts of employment and thus the Plaintiffs were entitled to a redundancy package from  the Defendant. The High Court affirmed the decision of the NLC following a challenge by  the Defendant against the NLC ruling brought at the High Court. Defendant appealed against the High Court’s decision to the Court of Appeal. Whilst the appeal was pending the  parties herein and the NLC started negotiations to amicably resolve the matter. The parties  resolved the matter and filed terms of settlement at the Court of Appeal. The Defendant then  withdrew the appeal filed at the Court of Appeal. 

In accordance with the settlement filed in December 2012 the Defendant paid the cedi  equivalent of US$4,663,198.18 to the Plaintiffs. On receipt of the said sums of money the  Plaintiffs voluntarily executed a Discharge and Release Form absolutely and unconditionally  discharging and releasing the Defendant “from all and every claim, Liability, costs or  demand that may arise out of or in connection with the said suit and/or the subject matter  of this suit”. 

According to Defendant, Plaintiffs further voluntarily undertook in writing “to waive and  not to make any claim or demand whatsoever and howsoever arising with the said suit and  or their employment with Defendant or MBC Co. Ltd.” 

In a general defence to the suit the Defendant contends that the Plaintiffs are basically  seeking to relitigate issues that have been determined by the NLC affirmed by the High  Court, an appeal against which was lodged at the Court of Appeal but withdrawn due to an  amicable settlement of the matter. Defendant finally contends that the Plaintiffs for all the  above reasons were estopped from prosecuting this suit. 

The following issues were set down for trial at the Application for Directions stage: 

1. Whether or not the litigation between the Plaintiffs and the Defendant at the High  Court and the NLC settled /terminated any further action against the Defendant by  the Plaintiffs.

2. Whether or not the Plaintiffs continued to be the employees of the Defendant  Company from 2005 to 2012. 

3. Whether or not the Plaintiffs became the employees of the Mining and Building  Contractors (MBC) after 2004. 

4. Whether or not the package paid to the Plaintiffs sometime in 2013 fell short of what  the Plaintiffs are entitled to as provided under the Collective Bargaining Agreement. 5. Any other issues as raised in the pleadings.  

The parties tendered the following documents as exhibits. On their part the Plaintiffs  tendered the following documents: 

1. Exhibits A, A1 to A90 being social security account statement confirmation of  engagement to SSNIT, labour cards etc. 

2. Exhibit B – Collective Agreement between Anglogold and GMWU dated 1st November, 2012. 

3. Exhibit C – The decision of the NLC dated 20th August, 2008 

4. Exhibit D – The judgment of the High Court, Accra (Industrial/Labour Division dated  7th April, 2011. 

5. Exhibit E – Payment packages made to the Plaintiffs by the Defendant 6. Exhibits F, F1 to F94 – pay slips of the Plaintiffs between 2005 - 2012)  7. Exhibits G, G1, G2 and G3 copies of the Plaintiffs’ pay slips before the petition to the  NLC. 

8. Exhibit H – Payment of loss of employment benefit to the administrators of the Estate  of John Asamoah by the Defendant. 

9. Exhibits J, J1, J2 – Documents including pay slip, confirmation of engagement to  SSNIT and underground certificates. 

10. Exhibit K – Labour card particulars relating to Isaac Warden 

11. Exhibit L – Long service certificate awarded to Isaac Warden 

12. Exhibit M – fixed term contract appointment to Kwadwo Okyere.

The Defendant Company through its representative also tendered the following documents: 

1. Exhibit 1 – Variation Agreement between Anglogold Ashanti (Ghana) Limited and  Mining and Building Contractors Limited dated 1st February, 2005 and attached  Schedule A being the list of MBC Employees covered by the Variation Agreement. 2. Exhibit 2 a copy of the decision of the NLC. 

3. Exhibit 3 – the decision of the High Court, Accra

4. Exhibit 4, 4A, 4B series being application for leave to withdraw appeal, affidavit of  Juliet Manteaw-Kutin (Mrs.) in support of application for leave to withdraw appeal,  notice of withdrawal of appeal terms of settlement, schedule of employee payment  list, discharge and release form, Court of Appeal notes striking out appeal as  withdrawn as a result of the terms of settlement filed. 

The Trial Judge resolved all issues in favour of the Defendant Company. 

The important findings and holdings of the Learned Trial Judge are summarized below as  follows: 

1. Exhibit B is the Collective Bargaining Agreement between Anglogold Ashanti  (Ghana) Limited and its subsidiaries in Ghana and the Ghana Mine Workers Union  of the Trade Union Congress (TUC). 

2. Exhibit B is not applicable to the Plaintiffs. 

3. Article 1.07 of the Exhibit B the CBA states that it takes effect from 1st November 2012. 4. From 1st January 2005 to November 2012 the Plaintiffs were employees of MBC where  their terms of engagement was renewable unlike that of Anglogold. 

At page 21 of his judgment found at page 582 of the Record of Appeal (ROA) the trial Judge  also stated as follows: 

“The Plaintiffs’ witness Christopher Azumah gave evidence which wholly supported the  Defendant’s case and collapsed the Plaintiffs’ case. This witness (PW1) corroborated the  evidence of Defendants representative that Exhibit F series were prepared by Defendant  because the salaries of the Plaintiffs were paid by the Defendant but charged on MBC later and  this was in pursuance of the contract between MBC and the Defendant. The witness was  emphatic that they were MBC workers but only benefitted from “AGA”. 

On the basis of these findings among others the Learned Trial Judge dismissed the Plaintiffs  claims as not proven. 

Aggrieved and dissatisfied with the judgment the Plaintiffs filed a Notice of Appeal on  12/12/18 with the following grounds of appeal: 

(a) The judgment of the High Court is against the weight of evidence.

(b) Additional grounds of appeal shall be filed upon the receipt of the Record of Appeal.

It is imperative to remark that no additional grounds of appeal were filed by the Plaintiffs  and they are therefore relying on the sole ground which is the omnibus ground of appeal in  assailing the judgment of the Trial Court. 

There is a plethora of cases on the subject of the omnibus ground of appeal. 

In Republic V. Conduah; Ex parte Aaba (Substituted by Asmah) cited by Counsel for the  Plaintiffs the Supreme Court speaking through Akamba JSC stated at page 1041 as follows: 

“This ground alleges that the judgment was against the weight of evidence. Such omnibus ground  invites this court to take another look at the facts on record to ascertain whether the conclusions  arrived at by the Court of Appeal are borne out or not; and to arrive at its own conclusion. In  Akufo-Addo v. Catheline [1992] 1 GLR 377, SC this court observed that whenever an appeal is  based on the omnibus ground that the judgment is against the weight of the evidence, the appellate  court has jurisdiction to examine the totality of the evidence before it and come to its own decision  on the admitted and undisputed facts. Thus, when an appellant complains that the judgment is  against the weight of evidence, he is implying that there are pieces of evidence on record which, if  applied properly or correctly, could have changed the decision in his favour or certain pieces of  evidence have been wrongly applied against him.” 

In Owusu Domena V. Amoah [2015-2016] SCGLR 790 the Supreme Court stated that: 

“Where the sole ground of appeal is that the judgment is against the weight of evidence, it  throws up the case for a fresh consideration of all the facts and law by the appellate court. We  are aware of this court’s decision in Tuakwa v. Bosom (2001-2002) SCGLR 61 on what  the court is expected to do when the ground of appeal is that the judgment is against the weight of evidence. It has erroneously been cited as laying down the law that when an appeal is based  on the ground that the judgment is against the weight of evidence then only matters of fact  may be addressed upon. Sometimes a decision on facts depends on what the law is on the point  or issue. And even the process of finding out whether a party has discharged the burden of  persuasion or producing evidence is a matter of law. Thus, when the appeal is based on the  omnibus ground that the judgment is against the weight of evidence, both factual and legal  arguments could be made where the legal arguments would help advance or facilitate a  determination of the factual matters.” 

See also the cases of Nortey (NO2) V. African Institute of Journalism and Communication  and Ors [2013-2014] 1 SCGLR 703 @ 711 and Oppong V. Anarfi [2011] 1 SCGLR 556 Holding 4. 

The duty cast on the Appellant is also described in the case of Djin v. Musah Baako [2007- 2008) 1 SCGLR 686 where the apex court held as follows:

“Where (as in the instant case) an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on record which, if applied  in his favour could have changed the decision in his favour or certain pieces of evidence have  been wrongly applied against him. The onus is on such an Appellant to clearly and properly  demonstrate to the appellate court the lapses in the judgment being appealed against”. 

Burden of Persuasion and Standard of Proof

In civil trials such as the instant case the Plaintiff has to meet the requisite standard of  proving his/her case in order to succeed in the trial. In line with Sections 10, 11(4), 12, and  14 of the Evidence Act, 1975, (NRCD 323) the Plaintiffs are required to lead cogent and  compellable evidence such that on the totality of the evidence on record, the court will find  the existence of the party’s version of the rival accounts to be more probable than its non  existence. These sections are reproduced below for their full effect. 

“Section 10 – Burden of Persuasion defined. 

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

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

Section 11 – Burden of Producing Evidence Defined 

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

Section 12 – Proof by a Preponderance of the Probabilities. 

(1) Except as otherwise provided by law, the burden of persuasion requires proof by a  preponderance of the probabilities.

(2) “Preponderance of the probabilities” means that degree of certainty of belief in the  mind of the tribunal of fact or the court by which it is convinced that the existence of  a fact is more probable than its non-existence. 

Section 14 – Allocation of Burden of Persuasion 

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

The principles on the burden and standard of proof in civil trials have been expounded in a  long line of decided cases such as: - Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR  882; Continental Plastics Ltd. V. IMC Industries [2009] SCGLR 298; Abbey v. Antwi [728;  Adwubeng v. Domfeh [1996-1997] SCGLR 660; and Dzaisu v. Ghana Breweries [2007-2008]  1 SCGLR 539. 

Grounds of Appeal 

We will now go on to examine the sole ground of appeal in this case which is the omnibus  ground of appeal in line with the above position of the Law and the authorities cited. 

As required by the authority in Djin v. Musah Baako counsel for Plaintiffs/Appellants in  his written submission tried to point out certain pieces of evidence which in his view, if they  had been properly considered by the Trial Judge would have turned the verdict in their  favour.  

We will discuss these pieces of evidence analyse same and determine whether indeed these pieces of evidence were discounted by the Trial Judge or totally ignored to the disadvantage  of the Plaintiffs/Appellants. 

As already indicated Plaintiffs’ contention was that by virtue of their transfer they had  suffered a diminution in their redundancy package and by virtue of their conditions of  employment they were entitled to be given a redundancy package. 

The payment of the redundancy package ordered by the NLC and affirmed by the High  Court in 2012 was made in 2013 but it covered only a period from the date when the Plaintiffs  were employed up to 2004 they contended.

Plaintiffs contend that their action was to claim the redundancy package between 2004-2012  when they were still employed by the Defendant Company. 

Is this argument of the Plaintiffs valid? This question will be answered in due course in the  judgment. 

The Plaintiffs/Appellants cited the alleged issue of the payment of Loss of employment benefit to John Asamoah’s estate, one of their members, on his death as an example that the  Defendant acknowledged that between 2004 -2012 they were still their employees and that  was why that payment was made. Counsel for Appellants contended that no reference was  made to MBC in the said payment. 

Counsel argued that to make such payment to John Asamoah and refuse to pay redundancy  package to the Plaintiffs was discriminatory and sins against Article 17 of the Constitution. 

The second piece of evidence put forward by Counsel is in respect of Christopher Azumah,  PW1 a witness in the case. Counsel contends that Azumah was treated differently by the  Defendant Company. The Defendant Company sent a letter to the Branch Manager of SSNIT  on Defendant’s letterhead asking that Azumah be paid his SSNIT benefits for working with  the Defendant Company from 19th February 1983 to 28th Feb. 2011. This was another case of  treating one of them differently and they contended that what is good for the goose is equally  good for the gander.  

The third issue relied on by the Appellant’s Counsel in support of Plaintiffs’ case was that of  Isaac Warden the 72nd Plaintiff who benefited from the redundancy package paid but was  given a Long Service Award. 

Counsel also argued that the Exhibits “F” series which were the pay slips of the Plaintiffs  between 2005 – 2012 bear the name of AGA the Defendant Company as the employer and  does not show the MBC as their employer. 

Counsel for the Plaintiffs further contended that the Defendant rescinded their decision to  transfer them to MBC after 2004 and thus they remained employees of AGA between 2004- 2012. 

This argument is made in the Plaintiffs statement of claim and their 1st Plaintiffs’ witness  statement paragraph 21 and it is fatal to their case that the averment was made but was not  proved as required by the authorities in Ackah v. Pergah Transport and Ors SCGLR 728 at  76 and Zabrama v. Segbedzi (1991) 2 GLR 221. The Plaintiffs failed to adduce any evidence at all to prove that the decision to transfer them was formally rescinded or impliedly  rescinded. 

In a riposte to these arguments Respondent’s Counsel in his written submission argued that  the salient parts of the Plaintiffs’ petition to the NLC confirmed the Plaintiffs’ action of  petitioning against their transfer to MBC. 

The Plaintiffs stated in the said petition that “the petitioners have suffered diminution in  their terms and conditions of service as the result of their involuntary transfer to MBC a  contractor of the Respondent”. The Petitioners stated that those of them currently under  MBC management are no longer entitled to the following: 

1. They are no longer entitled to AGC accommodation/housing. 

2. They are no longer entitled to apply for AGC scholarship/bursary for their wards. 

3. The AGC workers have unspecified terms of employment while MBC employees are  engaged on annual renewable contracts. 

4. That upon declaration of redundancy AGC pays 25% of annual salary multiplied by  the number of years served whilst MBC pays 15% multiplied by the number of years  served. 

Respondent Counsel argues further that the Plaintiffs in their petition never contended that  they were yet to be transferred to MBC but that they had been transferred to MBC, albeit  involuntarily, and this constituted severance of their employment with Defendant. 

One of the major issues the Trial Judge had to resolve in the case which this Honourable  Court is rehearing on appeal was whether Plaintiffs remained as employees of the Defendant  Company from 1st January 2005 to November 2012. 

Counsel for Respondent contends that the Plaintiffs ceased to be staff of the Defendant  Company from 1st January 2005 and were staff of MBC having been transferred to the latter  company by virtue of a Variation Agreement executed in February 2005 but which took effect  on 31/12/04 See pages 397 -401 of the ROA for the Variation Agreement. 

Counsel for Respondent further refers to Exhibit C the NLC decision and Exhibit D High  Court judgment as the final decision and judgment which the Plaintiffs are estopped from  reopening. 

 

Counsel for Respondent then poses the question in item 20 of his written submission as  follows:

“So the question is if the Defendant rescinded its decision to transfer the Plaintiffs to MBC,  effective 31st December 2004, why then was there the need for the petition? Why then did  Plaintiffs prosecute the petition to a successful end? Why did the Plaintiffs receive their  negotiated packages awarded them pursuant to the petition?” 

We find these questions relevant for the determination of the key issue as to whether the  Plaintiffs’ employment relationship was severed in 2004 or whether they continued as staff  of the Defendant Company between 2004 – 2012. 

Counsel contends, and we believe rightly so that there is no iota of evidence to indicate that  the Defendant informed the NLC that their decision to transfer Plaintiffs did not materialize  because the Defendant had rescinded its decision. We agree with Counsel that if the  Defendant had rescinded its decision to transfer the Plaintiffs there would have been  communication to that effect. 

Counsel argued in response to the reliance of the Plaintiffs on Exhibits A and F series  (Exhibits A, A1 to A90 – on Social Security account statement confirmation of engagement to  SSNIT, Labour cards etc. Exhibits F, F1 to F94 – pay slips of the Plaintiffs between 2005 – 2012) by which the Plaintiffs contended that between 2005 -2012 they were paid by the  Defendant and therefore they were employees of the Defendant, that Exhibits C and D the  decision of the NLC and the High Court Labour Division judgment disprove this. 

Respondent Counsel argues that the Defendant’s representative and witness Juliet Manteaw Kutin, DW1 Head of Legal’s evidence belies this assertion. The witness (DW1) explained that  pursuant to the contract between MBC and Defendant it was agreed that the Defendant  would continue to pay the salaries of the Plaintiffs including their social security  contributions and then proceed to surcharge MBC with such expenses. The arrangement was  to ensure the smooth operation of the Obuasi mine. 

Under cross examination the Defendant’s representative stated as follows: 

“Q: The amount contained in exhibit F series were paid by the Defendant Company to the  recipients namely the Plaintiffs? A: Yes, at the time there was a contractual relationship between MBC Limited and AGA Limited.  MBC was the mining contractor on site. As part of the contract management when the contract  sum was to be paid MBC Limited, AGA was to deduct expenses which included salaries of  MBC employees and paid to MBC employees and cost back charge to MBC. So if we were to  pay MBC a contract sum of $100,000 at the end of the month, we would pay the salaries out  of that and which may be $20,000 and the $80,000 paid to MBC Ltd.Q: The arrangement of the defendant company with MBC did not detract from the fact that the  plaintiffs remain the employees of the defendant? A: The plaintiffs themselves know and that took us to the LC and the pay slips show that they  were employees of MBC”. 

See page 507 of the Record of Appeal (ROA) 

In paragraph 28 – 30 of his written submission Defendant’s Counsel stated as follows: 

“Plaintiffs tendered in evidence Exhibit F series which were pay slips with the defendant’s logo  indicating that they emanated from defendant. On all these exhibits, there was the inscription “Shift  Boss-MBC Ltd”. The defendant’s representative explained that reference to the shift boss as MBC was  a way of identifying the plaintiffs as employees of MBC. The evidence of Christopher Azumah, who testified for the Plaintiffs corroborated the evidence of  defendant’s representative in all material particular. In particular, under a terse cross-examination,  Christopher Azumah stated as follows: “Q: You were a mine captain? A.: Yes. Q: Mine captain of MBC according to exhibit J. A: Yes. I was working for MBC Ltd but it was Anglogold that was doing everything for us  including payment of salaries, accommodation and SSNIT contribution. Whatever was due  Anglogold staff we were also benefitting. Q: You were benefiting from Anglogold but you worked for MBC Ltd. A: Yes” 

(See page 480 of ROA) 

In paragraph 31 of his written submission Defendant’s Counsel stated “clearly, the answers of Christopher Azumah directly corroborates the evidence of defendant’s representative that Plaintiffs  were employees of MBC Ltd but were paid their salaries, accommodation, SSNIT contributions by the  defendant. In fact, Christopher Azumah further told the Court that although they worked for MBC  Ltd, they benefitted from whatever was due staff of defendant. This piece of evidence is corroborated  by Exhibit 1 which is the Variation Agreement appearing at pages 397-401 of the ROA. According to  defendant’s representative, the defendant had to enter into this arrangement with MBC to ensure  smooth and efficient running or operation of the mine. However, defendant surcharged MBC with all  such expenses and deducted same from the contract sum due MBC Ltd.” 

At this point it would be helpful to refer to the decision of the NLC of 20/8/2008 (Exhibit C) which can be seen in the ROA pages 236-246 to settle the issue of whether the Plaintiffs were  transferred to the MBC or not. 

An excerpt from the decision below would suffice.  

“The Commission finds that the Petitioners and the 266 others who were involuntarily  transferred to MBC on 31st December 2004 were full time employees of the Respondent” The  Variation Agreement between AGA and MBC Ltd dated 1st February 2005 was made effective  31st December 2004 pursuant to which the Petitioners are working under MBC management  with the execution of the Variation Agreement the Petitioners ceased to have any employment  relationship with the Respondent. Thus entitling them to severance award or redundancy pay”  as provided in Section 65(2) and (3) of Act. Having suffered diminution in the terms and  conditions of their employment as earlier indicated due to their involuntary transfer from the  employment of the Respondent to the employment and management of MBC. Based on the preponderance of evidence both oral and documentary the commission finds the  petition meritorious and in consequence orders the Respondent to pay to the Petitioners the  amounts specified against their names in schedule “A” of the Variation Agreement as their  due gratuities or redundancy pay”. 

The Labour Act 2003, Act 651 provides for redundancy in section 65 (1) and (2) as follows: Section 65 (1) of the said Act states: 

1. When an employer contemplates the introduction of major changes in production,  programme, organization, structure or technology of an undertaking that are likely to  entail terminations of employment of workers in the undertaking, the employer shall  

a) provide in writing to the Chief Labour Officer and the trade union concerned,  not later than three months before the contemplated changes, all relevant  information including the reasons for any termination, the number and  categories of workers likely to be affected and the period within which any  termination is to be carried out; and  

b) Consult the trade union concerned on measures to be taken to avert or  minimize the termination as well as measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative  employment.  

Sub section (2) of the same section 65 of Act 651 also states: 

(2) Without prejudice to subsection (1), where an undertaking is closed down or undergoes  an arrangement or amalgamation and the close down, arrangement or amalgamation causes  – 

a) Severance of the legal relationship of worker and employer as it existed immediately  before the close down, arrangement or amalgamation; and  

b) As a result of and in addition to the severance that worker becomes unemployed or  suffers any diminution in the terms and conditions of employment, the worker is  entitled to be paid by the undertaking at which that worker was immediately  employed prior to the close down, arrangement or amalgamation, compensation, in  this section referred to as “redundancy pay”. 

Several of the scenarios envisaged by the Act have occurred in this country leading to  negotiations and the payment of redundancy packages. Redundancy situations have been  experienced in some Government departments, the mining companies and industrial giants  like Valco. 

These are facts we can take judicial notice of. Judicial notice can be defined as a court’s  acceptance for purposes of convenience and without requiring a party’s proof of a well known and indisputable fact. In the case of Rowland Kofi Dwamena v. Richard Nartey  Otoo and the Regional Lands Officer, Lands Commission, Accra [2019] DLSC 6501 at pages  5 and 6 the Supreme Court delivered itself as follows per Pwamang JSC. 

“It is trite learning that the doctrine of Judicial Notice is one of the exceptions to  formal proof of facts before a court or tribunal, which is by adduction of evidence. 

Judicial Notice may be taken only of facts which are notoriously true or are capable  of accurate determination by resort to sources whose accuracy cannot reasonably be  questioned. 

The court explained that “generally the main purpose of the doctrine of judicial notice  is to bring about judicial economy by saving time and resources proving what is  already known.”

It is also not uncommon for employees/staff who have been declared redundant and paid  their packages to thereafter have some working relationship with the companies they have  been separated from due to the redundancy exercise.  

In Human Resource practice in this country there have been several examples where for  instance staff like drivers, security officers, hospitality staff and even highly qualified  professionals, like lawyers, ICT experts, have been laid off through a redundancy exercise  and offered the opportunity to render services to the same company in an entirely new  capacity not as full time employees but contract employees or as staff of another company  which is serving as a contractor for the company that declared them redundant.  

The arrangement seen in the instant case is therefore not extraordinary based on the history of employment relations in this country.  

On the preponderance of the probabilities it is our opinion that the Plaintiffs/Appellants have failed to prove their case that they were employees of the Defendant Company between  2005 to 2012. In fact the CBA they seek to rely on does not even apply to them as it took effect from 19 November 2012. The findings/holdings of the Trial Judge have not been  assailed by the arguments put forward by the Plaintiffs as indicated below: 

1. The Plaintiffs have not successfully proved on the balance of probabilities that the  Defendant Company rescinded its decision to transfer them to MBC. 

2. The Plaintiffs have failed to satisfactorily answer the question if the defendant  rescinded its decision to transfer the Plaintiffs to MBC effective 31st December, 2004  why then was there the need for the petition. Why then did the Plaintiffs prosecute  the petition to a successful end? 

3. The Plaintiff reliance on Exhibits A and F cannot save them. The explanation of the  Defendants that this was an arrangement between Defendant and MBC for the  remuneration expenses of workers to be paid by Defendant and then MBC surcharged  for a smooth operation of the Obuasi mines appears to us to be a reasonable  explanation. It may seem clumsy or complicated but it is a plausible explanation. 

4. We further agree with the trial Judge and Counsel for Defendant/Respondent that  the Plaintiffs’ own witness Christopher Azumah under cross-examination  corroborated the Defendants case as indicated supra. 

The trial Judge cited the case of Manu v. Nsiah [2005-2006] SCGLR 25 holding 1 in support  of his decision as follows:

“It is a well-established rule that where the evidence of a party on a point in a suit is  corroborated by a witness of his opponent whilst that of his opponent on the same  issue stands uncorroborated even by his own witness the court ought not to accept  the uncorroborated version in preference to the corroborated one unless for some good  and apparent reason the court finds the corroborated version incredible, impossible  or unacceptable.” 

In the instant case we find the corroborated version not only very reasonable, but probable, credible and acceptable. 

See also the cases of; 

1. Osei Yaw v. Domfeh [1965] GLR 418 at 423 by Apaloo, JSC 

2. Agyeiwaa v. P and T Corporation [2007-2008] 25 GLR 785 at 990-991 

Issue of Discrimination – 

Counsel for Plaintiffs put forward the argument of unfair discrimination against the  Defendant Company for failing to pay his clients their package on the basis of the following  three payments the Defendant Company made to other workers: 

1. Issue of payment of loss of employment benefit to John Asamoah’s family or estate on  his death. 

2. Issue of payment to Christopher Azumah (PW1) the Plaintiffs’ own witness Azumah  was paid his SSNIT benefits for having worked with the defendant company from  19th February, 1983 to 20th February, 2011. In his witness statement at page 47 Azumah claimed that the defendant company paid a retirement package to him when he  retired in 2011. He tendered in evidence exhibits ‘J’ and ‘J2’ in respect of this. 

3. The third example is the issue of payment of Isaac Warden who was the 72nd Plaintiff.  He benefited from redundancy package but was given a long service award by the  defendant. 

Do these isolated instances constitute proof of discrimination against the defendant  company? 

Article (17), (1), (2), (3) of the 1992 Constitution provides as follows: 

“17(1) All persons shall be equal before the law (2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic  origin, religion, creed, social or economic status (3) For the purposes of this article “discriminate” means to give different treatment to  different persons attributable only or mainly to their respective descriptions by race,  place of origin, political opinions, colour, gender, occupation, religion or creed, whereby  persons of one description are subjected to disabilities or restrictions to which persons  of another description are not made subject or are granted privileges or advantages  which are not granted to persons of another description”. 

The Plaintiffs’ counsel apart from making this allegation did not offer any proof that these  payments, even if made, were done in a discriminatory fashion on the basis of gender,  religion, creed or ethnic origin etc. 

We see this as a half-hearted attempt to cling on to something to save their case. It is  interesting to note that the Respondent counsel did not provide any direct responses to these  claims and thus we do not know what their position is.  

It is however the firm opinion of this court that none of these payments are the redundancy  packages which the Plaintiffs are claiming. A long service award, payment to the estate of a  deceased employee and SSNIT contributions are not strictly speaking redundancy packages.  These payments from the look of things could have arisen out of the Variation Agreement  between AGC and MBC or some administrative errors and are not material or significant  enough to support the weighty charge of discrimination against the Defendant Company.  The argument therefore fails in our view. 

In the case of T.T. Nartey v. Godwin Gati 7/10/2010 ref. No: J6/1/2010 Date-Bah JSC (as he then  was) had this to say on Article 17 of the 1992 Constitution. 

“This reference presents a genuine issue for interpretation because the concept of equality  embodied in Article 17 is by no means self-evident. To our mind it is clear what Article 17 does  not mean. It certainly does not mean that every person within the Ghanaian jurisdiction has or  must have exactly the same rights as all other persons in the jurisdiction. Such a position is simply  not practicable, soldiers, policemen, students and judges for instance have certain rights that  other persons do not have. The fact that they have such rights does not mean that they are in  breach of Article 17. The crucial issue is whether the differentiation in their rights is justifiable  by reference to an object that is sought to be served by a particular statute, constitutional  provision or some other rule of law. In other words Article 17 (1) is not to be construed in  isolation but as part of Article 17. This implies that the equality referred to in Article 17(1) is in  effect freedom from unlawful discrimination. Article 17(2) makes it clear that not all  discrimination is unlawful. It proscribes discrimination based on certain grounds. The  implication is that discrimination based on other grounds may not be unlawful depending on  whether this court distils from Article 17(1) other grounds of illegitimate discrimination which  are not expressly specified in Article 17(2).” 

Issue of estoppel per rem judicata and estoppel by conduct 

The Defendant counsel raised these two defences in his written submission. 

The Defendant Counsel argued that “the commencement of the instant suit was an attempt to  relitigate the issue whether plaintiffs’ employment with the defendant ceased on 31st December, 2004.  The NLC has effectively ruled on the issue and the High Court had affirmed it in its entirety. An  appeal filed against the decision of the High Court to the Court of Appeal was withdrawn with the  leave of the Court. Therefore, both Exhibits ‘C’ and ‘D remain judgments or decisions and the  Plaintiffs are estopped from reopening same in this matter.” 

Further, in respect of the estoppel by conduct, defendant counsel argued that the parties  herein were bound by the terms of settlement reached, Exhibit 4 which was the basis for the  withdrawal of the appeal pursuant to leave granted by the Court of Appeal. In this regard  and also by going ahead to execute the discharge forms the plaintiffs were estopped from  reneging on the contents of the terms of the settlement between the parties.

 

Counsel for the Plaintiffs in response to the estoppel arguments contended that the  Defendant’s argument of estoppel per rem judicatam against plaintiffs was invalid due to  the payment of long service award to Isaac Warden. 

The estoppel by conduct argument will also not hold as Defendant Company had gone  ahead to deal with John Asamoah and Chris Azumah differently as if they had not signed  the discharge and release form and benefited from the redundancy package. 

We have stated our opinion on the immateriality of these payments to the 3 people referred  to in respect of the ground of discrimination. 

It is trite law that estoppel is different from res judicata. Res judicata is a judgment that is  used to oust the jurisdiction of the court because the rights of the parties and the subject  matter have previously been determined by a court of competent jurisdiction. 

The main difference between estoppel and res judicata was stated by Coussey J.A. (as he then  was) in the case of Bassil v. Honger [1954] 14 WACA 569 @ 572 as follows:

“It is well to have clearly in mind the distinction between pleas of estoppel and res  judicata. Estoppel prohibits a party from proving anything which contradicts his  previous acts or declarations to the prejudice of a party who relying upon them has  altered his position. It shuts the mouth of a party. The plea of res judicata prohibits the court from making enquiry into a matter already  adjudicated upon. It ousts the jurisdiction of the court.” 

The Evidence Act 1975 NRCD 323 Section 26 codifies estoppel by own statement or conduct  as follows

“Except as otherwise provided by law including a rule of equity when a party has by his  own statement, and or omission intentionally and deliberately caused or permitted another person to  believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively  presumed against that party or his successors in interest in any proceedings between that party or his  successors’ in interest and such relying person or his successors’ in interest.” 

It is our position that the Plaintiffs are estopped by conduct from making the claim for  another payment of a redundancy package made to them already and for which they have  issued discharge forms to the defendant company. 

In conclusion, from the preponderance of the probabilities the Defendant’s story appears  more probable than that of the Plaintiffs. In the case of Bisi v. Tabiri alias Asare [1987-88] 1  GLR 360 the court held that: 

“The standard of proof required of a plaintiff in a civil action was to lead such evidence  as would tilt in his favour the balance of probabilities on the particular issue – probability denoted an element of doubt or uncertainty and recognized that where there  were two choices it was sufficient if the choice selected was more probable than the  choice rejected.” 

The Plaintiffs have not met this standard.  

In the case of Mrs. Agnes Ahadzi and Pioneer Mal Ltd v. Boye Sowah, Nii Nartey Adjeifio  and Nuumo Adjei Kwanko II [2019] DLSC 6208 at page 8, the apex court stated that: 

“The combined effect of sections 11(1), 14 and 17 of NRCD 323 is that if a party such as  the Defendant in this case (in the instant case the Plaintiffs) fails to discharge the  burdens of producing evidence and persuasion in respect of any issues of fact which are  upon him, the Court is obligated to find against him on that issue”. 

We are convinced that the learned trial Judge has selected the more probable story and  rejected the improbable one. We agree with the learned trial Judge that:

“To contend that the plaintiffs remained the employees of the defendant from 1st January, 2005 to November, 2012 will be illogical. To claim redundancy for the second  time on the same entity would more or less be perpetuating an illegality or to use the  defendants’ words, committing fraud on both the NLC and the High Court. The Plaintiffs successfully fought the earlier case that they were no longer employees of  Anglogold by virtue of Exhibit ‘1’ and cannot therefore turn around to say that they had  always been the employees of defendant” 

See pages 15 – 16 of the judgment found at pages 576 – 577 of ROA. 

The sole ground of appeal fails as lacking merit and the appeal is therefore dismissed in its  entirety and the judgment of the High Court dated 11th October, 2018 is hereby affirmed. 

 (SGD) 

 ALEX B. POKU-ACHEAMPONG 

 (JUSTICE OF THE COURT OF APPEAL) 

 DOMAKYAAREH (MRS), J.A.

 I agree

 (SGD) 

 ANGELINA M. DOMAKYAAREH (MRS)  

(JUSTICE OF THE COURT OF APPEAL) 

ASIEDU, J.A.

I also agree

 (SGD) 

SAMUEL K. A. ASIEDU  

 (JUSTICE OF THE COURT OF APPEAL)

COUNSEL

ERIC KWARTENG FOR PLAIN TIFFS/APPELLANTS.

OSAFO BUABENG FOR DEFENDANT /RESPONDENT