JAMES BAIDEN & OTHERS V. GRAPHIC CORPORATION

JUDGMENT

ATUGUBA J.S.C.

The appellants were the employees of the respondent Graphic Corporation. Their relationship was governed, inter alia, by a collective agreement (exhibit B). Section 28.03 thereof provided for long service awards to the employees, while section 28.04 provided for end of service awards.

However, in December 1990, the government of the Provisional National Defence Council (PNDC), directed all public corporations and the state organisations having end of service benefits to freeze them and to arrange with the unions regarding payments to their employees entitled to such benefits up to the end of December 1990. Pursuant to this directive and following talks on the matter between the Ministry of Mobilization and Social Welfare, the Trade Union Congress and management of the respondent, the end of year benefits were calculated and 40 per cent thereof was paid out to the plaintiffs, leaving 60 per cent thereof on hold, which was paid to them upon the termination of their employment in 1993 (see pages 43, 44. 48-49 of the record of appeal).

On 29 October 1993 the plaintiffs and others totalling 155 in number, were served with letters, in identical terms, of termination of their employment with the respondent. On their own evidence, in addition to the end of service benefits as they stood at the end of December 1990 they were paid severance awards and their provident fund contributions after the necessary deductions.

The appellants' however, contend that they were entitled to their end of service awards from their time of employment up to the date of the termination of the same on 29 October 1993 based on the provisions of section 28.04 of their collective agreement. This claim was upheld by the trial judge on the ground that the aforementioned directive of the PNDC was contrary to the provisions of the Industrial Relations Act, 1965 (Act 299), as it violated section 28.04 of the said collective agreement. This holding was reversed by the Court of Appeal on the ground that the said directive of the PNDC has been accorded constitutional immunity by section 34(3) of the Transitional Provisions of the 1992 Constitution. Counsel on both sides, Kwaku Paintsil for the appellants and J K Agyemang for the respondent, have put forward very stiff and learned arguments on this matter and I am much indebted to them.

Mr. Paintsil first contended that the said PNDC directive was multi-faceted and could not be judicially noticed in the absence of evidence as to its specifics with regard to its scope of applicability in terms of categories of employees to be affected, its duration, contingent conditions to be complied with either by employers or employees, etc. Mr J K Agyemang's reply to this is that such specifics were irrelevant to the claims sought by the plaintiffs.

In my view, the answer to the propriety of judicial notice of the said PNDC directive lies in the provisions of section 9(2)(a) and (b) of the Evidence Decree, 1975 (NRCD 323), which are as follows:

"9(2) Judicial notice can be taken only of facts which are either:(a) so generally known within the territorial jurisdiction of the court; or(b) so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned that the fact is not subject to reasonable dispute." (The emphasis is mine).

It is clear that, if as contended by counsel for the appellants, only the general or bald fact of the freezing of end of service awards was in the terms of section 9(2)(a), "so generally known within the territorial jurisdiction of the court" as to be suitable for judicial notice, yet any details that such a directive entailed, having been issued by a public body like the Ministry of Mobilization and Social Welfare would be "so capable of accurate and ready determination" by resort to, the relevant records of that Ministry that "their accuracy cannot reasonably be questioned." Indeed, this court directed counsel on either side of this case to have that directive made available to us. This has been done and it confirms the facts of the directive as judicially noticed by the courts below. In a press release dated 10 December 1990 jointly signed by Mr. D. S. Boateng, the then secretary for Mobilization and Social Welfare and Mr A K. Yankey, the then Secretary-General of the Trades Union Congress, it is stated:

"Governmental TUC Joint Standing Committee has met in Accra to discuss the End-of-Service Benefits scheme and other related matters. The meeting followed the misinterpretation of the directives issued earlier by the government to Chief Executives of State-owned Enterprises in respect of End of Service benefits. The Standing Committee discussed a number of issues bearing directly on the end-of-service benefits, including the magnitude of the total amount involved, its payment and overall effects on the National Economy. The meeting also discussed the national pension scheme and the cost of living allowance to workers. The Standing Committee agreed that managements and trade unions should meet to negotiate on the end-of-service scheme with a view to freezing the accumulated benefits with effect from 31 December 1990. It was further decided that these negotiations should also agree on a framework for settlement of the accumulated benefits." (The emphasis is mine).

The appellants contend that the PNDC directive concerned end of service benefits but not End of Service Awards under section 28.04 of the collective agreement. This contention is misconceived. No rational basis has been shown why the PNDC would aim at freezing end of service benefits but not end of service awards. The discernible objective of the directive is to avoid (though temporarily) the heavy economic strain entailed by the continued payment of end of service packages, having regard to the huge lump sums that fall to be paid from such packages. That being so, the expression "end of service award", should be construed as the same as "end of service benefit", ut res magis valeat quam pereat. It is evident from the afore-mentioned joint press release that the directive related to "accumulated benefits" from "end of service scheme." It certainly cannot be contended that the end of service awards covered by section 28.04 of the collective agreement on which the appellants rely, do not constitute "accumulated benefits" from an "end of service scheme." That being so, the directive prima facie covered monetary sums resulting from an "end of service scheme" whether they be characterized as end of service awards or end of service benefits or otherwise.

The attack on the said directive as being contrary to the Industrial Relations Act, 1965 (Act 299), which gives statutory force to employees' rights under a collective agreement is misconceived. There is no doubt that the said PNDC directive was an executive act of the PNDC and is validated by section 34(3), (4) and (5) of the Transitional Provisions of the 1992 Constitution which provides as follows:

"3. For the avoidance of doubt, it is declared that no executive, legislative or judicial action taken or purported to have been taken by the Provisional National Defence Council or the Armed Forces Revolutionary Council or a member of the Provisional National Defence Council or the Armed Forces Revolutionary Council or by any person appointed by the Provisional National Defence Council or the Armed Forces Revolutionary Council in the name of either the Provisional National Defence Council or the Armed Forces Revolutionary Council shall be questioned in any proceedings whatsoever and, accordingly, it shall not be lawful for any court or other tribunal to make any order or grant any remedy or relief in respect of any such act.4. The provisions of subsection (3) of this section shall have effect notwithstanding that any such action as is referred to in that subsection was not taken in accordance with any procedure prescribed by law.5. It is not lawful for any court or tribunal to entertain an action instituted in respect of an act or omission against a person acting or omitting to act, on the instructions or authority of the Provisional National Defence Council or the Armed Forces Revolutionary Council and alleged to be in contravention of any law whether substantive or procedural, in existence before or during the administration of the Provisional National Defence Council or the Armed Forces Revolutionary Council." (The emphasis is mine)."

It is trite law that in Kwakye v. Attorney-General [1981] GLR 944 the Supreme Court held that these provisions constitute a total ouster clause and therefore cannot be questioned in any court. See also Edusei v. Attorney-General [1996-97] SCGLR 1.

The PNDC directive in this case, effecting as it did, the freezing of end of service benefits, was a completed act within the era of the PNDC and is not a fresh act that falls to be done after the coming into force of the 1992 Constitution. Were it an act that fell repeatedly to be done, as for example, the annual celebration of the 31st December Revolution from public funding, which was nullified for unconstitutionality in New Patriotic Party v. Attorney-General [1993-951 SCGLR 1 or the continued invocation of the jurisdiction of the courts as inSam (No 2) v. Attorney-General [2000] SCGLR 305 and Adofo v. The Attorney-General [2005] SCGLR 000sic, the situation would have been different. As the present case relates to a past and completed act within the PNDC era, the principle of prospectivety of statutes and the transitional provisions of section 34(3), (4) and (5) of the 1992 Constitution, prevail as was held in similar circumstances inBenneh v. The Republic [1974] 2 GLR 47, CA (full bench), Fatal v. Minister for Internal Affairs [1981] GLR 104, SC and Ellis v. Attorney-General [2000] SCGLR 24.

The appellants' claim for redeployment benefits against the respondent is misconceived since the redeployment programme together with all its benefits, on the evidence of the appellants (see pp 42 and 49 of the record of appeal), and their own exhibit H which deals extensively with that programme is administered by the Government of Ghana itself under a Redeployment Management Committee set up by the Ministry of Mobilization and Social Welfare.

My brother Dr Twum, J.S.C. has held that the severance awards paid to the plaintiffs should be disallowed because they also constitute end of service awards, made, if I understand him aright, beyond the frozen period of end of service benefits.

I, however, with respect, differ from him on this issue. In Volta Aluminium Company Limited v. Tetteh Akuffo [2003-2004] SCGLR 1158 there are dicta which indicate that severance awards made consequent upon a redundancy exercise are also end of service benefits. That may be so on the special facts of a particular case. However in this case, the end of service benefits are clearly set out in section 28.04 of the collective agreement. These do not include severance awards.

I pause here to clarify the obvious that the mass lay off of the plaintiffs is clearly, on the evidence, a redundancy exercise for which the synonym in this case (see exhibits 2, 3 and 5 and pages 63, 67-71 of the record of appeal), is redeployment. The severance awards of two months' salary for junior staff and four months' salary for senior staff cannot, in my view be termed as benefits. The expression "benefits" in this employment context must mean benefits flowing from services rendered. The severance awards in this case were, however, paid not as benefits but as compensation or atonement for the disruption of the plaintiffs' employment or service, by reason of their being laid off, as redundant. In the similar case ofGerard Parkes Heywood v. Comptroller General of Inland Revenue [1975] AC 229 PC, ex gratia payment had been made to the appellant under a scheme drawn up by the employers to compensate their employees for loss of future employment in consequence of amalgamations and the Comptroller-General of Inland Revenue assessed that payment to income tax under the Income Tax Act, 1967 as being a gratuity in respect of having or exercising the employment. At page 236 of the Report, the Privy Council said:

"This scheme made in their Lordships, opinion, provision for payment of compensation for loss of future employment and their Lordships are unable to accept the special commissioners' conclusion that the payment made to the appellant was a gratuity for past services."

But there is another ground for holding that the severance awards are not end of service benefits within the purview of the PNDC's policy statement with regard to end of service benefits. In construing a statute or any document, it is now settled, as was stated by Francois JA (as he then was) inRepublic v. Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame [1978] GLR 467 at 474, CA (full bench):

"One may ... be excused ... for foreging afar and borrowing the wise words uttered by Lord Wilberforce in Prenn v. Simmonds [1971] 3 All ER 237, HL (albeit a commercial case, but whose principles apply with equal force to this matter.) There the noble Lord said at pages 239-240"The time has long passed when agreements, even those under seal, were isolated from the matrix of facts in which they were set and interpreted purely on internal linguistic considerations. There is no need to appeal here to any modern, anti-literal, tendencies, for Lord Blackburn's well-known judgment in River Wear Comrs v. Adamson ([1877] 2 App Cas 743 at 763) provides ample warrant for a liberal approach. We must, as he said, enquire beyond the language and see what the circumstances were with reference to which the words were used, and the object, appearing from those circumstances, which the person using them had in view. Moreover, at any rate, since 1859 (Macdonald v. Longbottom [1843-60] All ER Rep 1050) it has been clear enough that evidence of mutually known facts may be admitted to identify the meaning of a descriptive term."' (The emphasis is mine.)

Similarly, in Kulamma v. Manadan [1968] AC 1062 PC at 1070-1071 their Lordships stated:

"Their Lordships accept that the Ordinance contemplates, as matters over which the board is to retain control, transactions which pass a lesser interest in the land than Leases, and that the term 'licences' is used... But it does not follow from this that merely because an agreement can, in certain of its aspects, be described as, or as comprising a licence, it is to be classified with the type of licence referred to in these sections or (which is the ultimate question) described as a dealing with the land... the question is where, on the scale, the rights conferred by the agreement are to be found. (The emphasis is mine.)

This principle, of construing language to suit only the true object intended by it, is put in the most blunt manner by Ralph Gibson, LJ in Chief Adjudication Officer v. Brunt [1988] 1 All ER 466 at 476, CA thus:

"If we could identify the mischief at which reg 6(1)(e) of the 1948 regulations was directed, or the purpose intended by Parliament to be achieved by that regulation, with sufficient certainty, then we should in construing the regulation try to give it a meaning which deals with that mischief and which does not go beyond the purposes of Parliament." (The emphasis is mine.)

As I earlier stated (supra) the purview of the PNDC's policy statement on end of service benefits envisages the huge lump sums that fell to be paid to employees from the end of service schemes, which were a big stress on the country's economic stamina. On the other hand the two to four months' severance awards were not of such a nature; they are comparatively small. In my view, therefore, the severance awards fall outside the purview of the mischief aimed at in the PNDC's policy statement concerning end of service benefits and should therefore be retained by the plaintiffs/appellants.

I am fortified in this view by the fact that at page 10 of exhibit H, the PNDC itself, acting through the Redeployment Management Committee, provides under the heading "COMPENSATION PACKAGE" for:

"(i) a severance payment equivalent to four months of gross terminal salary;

(ii) an end of service payment equivalent to two months of gross salary at the time of termination for each year of uninterrupted service."

Furthermore, by exhibit 3 dated 28 October 1993 the Ministry of Employment and Social Welfare directed that the defendant/respondent should pay. "Two months' severance pay ... to the junior staff and four months' salary for the senior staff," in addition to the outstanding balance of 60 per cent of the end of service benefits."

Under section 23 of exhibit A, the collective agreement, it is clearly provided as follows:

"Section 23—Redundancy(a) Where for one reason or another the corporation is compelled to declare any number of employees redundant, the employer shall give the union two (2) calendar months notice in advance of final action being taken.(b) The principle of 'first in, last out' shall apply, all things being equal.(c) Should the Corporation find it necessary to fill vacancies in particular grades within eighteen (18) months of discharging employees of similar grades on grounds of redundancy, the Corporation will fill such vacancies with redundant employees in accordance with the principle of first in last out."'(e.s.)

It is quite clear on the evidence that the defendant/respondent did not comply with the requirement of section 23(a) by giving "the union two (2) calendar months' notice in advance of final action being taken" as to the redundancy exercise. In Nartey-Tokoli v. Volta Aluminium Co Ltd (No 2) [1989-90] 2 GLR 341 at 363-364, SC when similar provisions as contained in section 23 of the collective bargaining agreement herein were breached, Taylor JSC (Francois and Osei-Hwere, JJSC and Ofori-Boateng JA concurring) forcefully said:

"Under article 14(a), clearly the ICU should have been notified of the intended redundancy exercise which Valco had, a few weeks before 18 October 1982, decided to mount. The ICU as a representative body will have the obligation to pass the information to the affected employees on whose behalf it has been given statutory responsibility to act. In my well-considered opinion, in the interest of fair industrial relations, notification must involve submitting to the union as far in advance as possible the names of the employees to be affected. That way the employee to be declared redundant is enabled to take advantage of the beneficial provisions of articles 14(b) and 11(a) if he considers that they have been breached or are likely to be breached in his case. It is a serious matter certainly not conducive to industrial peace, where the machinery which the legislature has carefully devised to give fair hearing to employees and to promote harmony between the employee and the employer is unilaterally ignored by the employer.It seems to me that all the plaintiffs herein were so suddenly locked out of their place of employment that they had no opportunity to avail themselves of the protection given to them under articles 14(b) and 11(d) of the collective agreement. Furthermore, the right reserved to the union to be informed under article 14(a) was crudely disregarded, thus disabling the union from carrying out its obligations under the collective agreement... In my view,... on the evidence Valco was in breach of the provisions of the collective agreement and had acted contrary to the provisions of Act 299. In my view, the specific provisions of Act 299 breached are sections 5, 6, 7and 10.”

Taylor JSC had earlier held at page 359 that the power of the ICU to negotiate for Valco employees "... is enshrined in sections 3, 5, 6 and 7 of Act 299." All this is the same as in this case and is reinforced by the decision of this court with regard to the effect of statutory provisions on executive powers inTema Development Corporation v. Atta Baffuor J41, Civil Appeal 241200 dated 22 June 2005 to be also reported in [2005] SCGLR 000 post.

In this case the defendant/respondent/respondent did comply with the requisite condition for terminating the employment of the plaintiffs/appellants laid down under section 20 of the collective bargaining agreement by paying up the equivalent salaries in lieu of notice. But as pointed out (supra), this was a redundancy exercise and with respect to that there is the additional requirement as to notice of two months prior to final implementation of the same, which the defendant/respondent/respondent did not comply with. In Kobea v. Tema Oil Refinery [2003-2004] 2 SCGLR 1033 at 10481sic said:

"The appellants' claim arises ex contractu, and pacta sunt servanda is a key principle of the law of contract. That being so, like statutory power, the contractual power of termination or dismissal must be exercised within the four corners of the terms of the contract. It cannot therefore be properly contended that even though one could properly have confined one's action to some grounds in effecting a termination or dismissal, reference can be made to other grounds for termination or dismissal, merely as it were, ex gratia."

Furthermore the statutory sanctity accorded to the employment terms of a collective bargaining agreement under section 10(4) of the Industrial Relations Act, 1965 (Act 299), as expounded fully in Hemans v. Ghana National Trading Corporation [1978] GLR 4, CA and Nartey-Tokoli v. Volta Aluminium Co Ltd (supra), operates to vitiate the termination of the plaintiffs/appellants/appellants' employment and I declare the same to be a nullity.

The question of damages to be awarded the plaintiffs is not an easy one. Various principles in this respect have been stated both here and in England. Many of them have been considered by Taylor J.S.C. inNartey Tokoli v. Volta Aluminium Co. Ltd. (supra) at 369-371. It appears, therefrom, however, that an award which is supported "by adequate reasons in the exercise of .... discretion” is unobjectionable. One general principle in assessing damages is the duty of the plaintiff to mitigate his damages. The onus on this issue lies on the respondent: see Societe General de Compensation v. Ackerman [1972] GLR 413, CA. In this case, to enhance the employment opportunities of the plaintiffs, the respondent stated in their certificates of service, "redeployment", as the "reason for Leaving" the respondent's service. At the time of their lay off, the redeployment scheme referred to earlier, (supra), was in full operation with several monetary and training packages, of which the plaintiffs could have availed themselves. I consider that had they done so they could have considerably mitigated their damages.

However, on the evidence, they not unreasonably thought that it was their employer who was to implement the redeployment scheme. The plaintiffs are therefore not to blame. In all the circumstances, I would, following the award made in Nartey-Tokoli v. Volta Aluminium Co. Ltd, (supra), award them twelve months' salary as damages.

It is also established that shortly after the lay off of the plaintiffs, the respondent advertised, at page 8 of the March 7 1974 Issue of the Daily Graphic, for applications in respect of the posts of management accountant, credit controller, payroll supervisor, accountants, clerks and cashiers. As this was manifestly within eighteen months' of the discharge of the plaintiffs, section 23(c) of the collective agreement, set out (supra) is applicable. Unfortunately, the plaintiffs have not led evidence to show that they are "employees of similar grades" within that provision, so as to benefit therefrom.

As regards the statements of account in respect of the provident fund contributions, that fund, as exhibit F, the Staff Provident Fund Regulations, shows is to be administered by a board of trustees, and it is that body which ought to issue out the statements of accounts of the plaintiffs. Their claim against the respondent is therefore misconceived.

The computation of the end of service benefits remains unclear as to whether the correct percentage of annual salaries as at 31st December 1990 has been multiplied over the number of years of service of each employee up to 31st December 1990. As this is purely a ministerial, mathematical exercise, and with the parties' consent, we order that the parties with their counsel should together work out the computation involved and any resultant unpaid difference should be paid over to the appellants together with interest at the prevailing bank rate as at today, sic from the 29 October 1993 to this day. The parties can apply to this court, in case of any irresolvable difficulties, for further directions.

AKUFFO (MS), J.S.C.

I agree with the conclusion that this appeal succeeds in part. The Appellants are entitled to receive End of Service payments calculated in accordance with Section 28.04 of the Collective Agreement (exhibit B). These entitlements must be calculated up to 31st December 1990, the date when the government-ordered freeze on End of Service schemes within the public sector came into force. They are also entitled to severance pay in accordance with the agreement reached between Management and the Union, as a result of the Applicants having been declared redundant.

Regarding the claim for the Respondent to render to the Appellants detailed statements of account of their Provident Fund contributions and their respective entitlements thereunder, I agree with my learned brother Atuguba JSC., that since this is a fund managed by a body of trustees, it is those trustees who may owe the Appellants an accounting.

DR. SETH TWUM. J.S.C.

This is an appeal from the unanimous judgment of the Court of Appeal dated 23rd May 2002. In this Judgment I will use the expression "Plaintiffs" to describe the Appellants before this court. I will also described the Respondent herein as "The Defendant". The Plaintiffs were, of course, the affected employees who started the original suit in the High Court and "The Defendant", the Graphic Corporation, was the Defendant.

The Dispute

As a result of recommendations by the Ministry of Information and the State Enterprises Commission, Deloitte and Touche, a firm of Management Consultants, was contracted to look into the operations of the Graphic Corporation. They recommended, inter alia, that the Corporation should reduce its staff. Initially the percentage recommended by the Consultants was 30. This would have meant that 230 employees of the Corporation would be laid off. After a series of discussions held between management, the employees' Union, (I.C.U) and the Senior Staff Association, the percentage was reduced to 22, bringing the number of workers to be laid off to 155. The Ministry of Labour issued its Fiat to the Corporation to enable Management carry out the exercise. A copy of the Fiat was tendered in evidence as Exhibit 3. Exhibit 3 purported to set out what the Corporation was to pay to the affected workers. I will discuss its contents and effect later in this Judgment. Suffice it to say at this stage that Exhibit 3 made it clear that the exercise was a REDUNDANCY EXERCISE. Further, according to Exhibit 4 the redundancy exercise had been necessitated by changes in the production processes of the Corporation brought about by the computerization of certain areas of production, such as Editorial. Additionally, the Letterpress section had been closed down but the workers in that section were still hanging on.

According to the Defendant's representative, "all benefits were paid outright as directed in Exhibit 3" (see page 65 lines 39-41). He said the workers were paid and they went home. (Page 66). So why this litigation? According to the 1st Plaintiff, Mr. Baiden, the total amount paid to him when his "appointment was terminated was ¢3,326,234.94; out of this, End of Service Benefit was ¢2,743,256.00. The rest were four months severance award was ¢33,373.68; three months' pay in lieu of notice—was ¢249,805.26. Under the Collective Agreement I would have been entitled to ¢13,376,627.87. By section 28.04 of the Collective Agreement a worker who has worked for Fifteen years and above has to be paid 47.5% of his annual basic salary multiplied by the number of years served. So that if Defendant Company had gone by section 28.04 of the Collective Agreement the amount of ¢13,376,627.87 is what I would have received as End of Service Benefit". Obviously this complaint by the workers of having been paid less provoked the litigation. It deserves very careful consideration.

Pleadings

On or about the 6th of December 1995, the first Plaintiff, James Baiden and others, numbering thirty-seven issued a Writ of Summons in the High Court, Accra, against the Defendant claiming the reliefs indorsed thereon. The Writ was accompanied by a Statement of Claim. The Defendant filed its Statement of Defence on 26th February 1996. Before I proceed any further, let me say something about the way the Plaintiffs pleaded particulars of their claim. They claimed that the Defendant purported to redeploy them. They further pleaded that "by the said purported redeployment, the Defendant was understood to mean and the Plaintiffs in fact understood them so, that the Defendant would offer new training opportunities and or equip the Plaintiffs and re-assign them to other units/departments of the Defendant or else make them self supporting outside the Corporation". The Plaintiffs further pleaded in paragraph 8 of their Statement of Claim "that the Defendant would further apply and pay to the Plaintiffs the Ghana Government approved compensation package for redeployed workers, as is the case with other Corporations where redeployment exercise had been properly carried out". Again, in paragraph 3 of their Reply the Plaintiffs pleaded as follows:— "In answer to paragraphs 6, 7, 8, 9 and 11 of the Statement of Defence, Plaintiffs maintain the averments in paragraphs 7 and 8 of the Statement of Claim and say further that the Labour Redeployment Programme under which Plaintiffs' appointments were terminated (my emphasis) was initiated by the Ghana Government as an option to support other measures of the Economic Recovery Programme".

At the Summons for Directions, the Plaintiffs inter alias, submitted the following issues for trial:

(1) Whether or not Plaintiffs' were redeployed under the Ghana Government's Redeployment Programme.

(2) Whether or not redeployment under the Government's redeployment Programme is different from redundancy and termination under the Collective Bargaining Agreement.

On 14th January 1997, the Plaintiffs amended paragraph 18(vi) of their Statement of Claim with leave to read: "An order compelling Defendants to go by the laid down provisions for the payment of End of Service Award under the Collective Bargaining Agreement". This was a complete about-turn. There was obvious confusion or indecision in the Plaintiffs' mind about what reliefs they were entitled to. Curiously, in paragraph 7 of their Reply the Plaintiffs rather pleaded that "the Defendants are misconceived in their comprehension of redundancy under the Collective Bargaining Agreement as distinct from redeployment under the Government's Programme".

Government Redeployment Programme

The Plaintiffs tendered Exhibit H. This contained the Ghana Government's Redeployment Programme. The objectives of the Government's Redeployment Programme as set out in Exhibit H are as follows:—

(a) to remove surplus labour from the public/civil service and keep the size of the service at economically justifiable levels.

(b) to enable the Government pay improved compensation to public servants (from saving to be derived from staff reductions) and thereby boost up morale.

(c) re-allocate the available labour force rationally within the civil/public services and private sectors; and

(d) afford public servants to be redeployed, the opportunity to discover their potential and develop this to the optimum through training/retraining and resettlement process.

What is "redeployment"? This word really is not a term of art. Indeed, the words redeployment and redundancy are sometimes used interchangeably in labour disputes and even in Collective Bargaining Agreements as though they mean the same thing. In fact, in his judgment, the Learned Trial Judge used the word "redeployment" when he obviously meant "redundancy". In practice, by redeployment it is understood that excess labour is moved from one establishment to another associated establishment with or without some form of retraining. The new jobs need not necessarily be alternative suitable employment, but there may be some incentive that would make the new jobs acceptable.

Redundancy has a statutory meaning. The first definition was contained in section 34 of the Labour Decree 1967, (NLCD 157). This was amended by section 1 of the Labour Amendment Decree 1969, (NLCD 342). The current definition is to be found in section 65 of the Labour Act 2003 (Act 651). Section 65(1), explains that 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 that undertaking redundancy may result. Section 65(2) complements this thus:

"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 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".

Finally section 65 (4) states that "the amount of redundancy pay and the terms and conditions of payment are matters which are subject to negotiation between the employer or a representative of the employer on the one hand and the worker or the trade union concerned on the other. (similar provision existed under section 35 of the Labour (Amendment) Decree 1969, (NLCD 342).

In my view, and in the light of what had been discussed above, there was no evidence whatsoever that the termination of the Plaintiffs was on account of any Government of Ghana policy of redeployment. The totality of the evidence, particularly, exhibits 3 and 6 made it abundantly clear that the termination was as a result of redundancy. The Plaintiffs did not help their case by drawing in what I regard as a red herring. It merely obfuscated the real issues in controversy between the parties.

High Court Judgement

After a full trial, the Learned Trial Judge gave judgment on 15th December 1999 as follows:

(a) The Defendant corporation was right in terminating the appointments of the Plaintiffs.

(b) Defendant Corporation is to compute Plaintiffs' entitlements by reference to section 28 (4) of the Collective Bargaining Agreement and in particular the Defendant must apply the salary of each Plaintiff at the point of redeployment on 29th October 1993. From this should be deducted whatever has already been paid to each Plaintiff, the difference is to attract interest.

(c) Defendant Corporation is to provide each Plaintiff with a statement of his provident fund contribution to determine if there has been any under payment. Any difference should be paid back to Plaintiff with interest.

(d) The severance award of two months' salary and four months' salary respectively paid to junior and senior staff should not be disturbed by the court. In other words the claim for enhancement of the award is dismissed.

The Court of Appeal

Aggrieved and dissatisfied with points (b) and (c) of this judgment, the Defendant filed an appeal in the Court of Appeal on 12th February 2001 against those parts. The Court of Appeal extended the time within which to appeal to enable the Defendant to do so. The Defendant filed the following grounds of appeal:—

(a) That the judgment was against the weight of evidence.

(b) That the Learned Trial Judge misdirected himself on the evidence when he stated that Defendant's conduct in freezing Plaintiffs entitlements under section 28.04 was not only wrongful but also led to various diminution in the Plaintiffs' entitlements.

(c) The Learned Trial Judge failed adequately to consider that the freezing of Plaintiffs entitlement was a Government decision which was accepted by representatives of employees including Plaintiffs.

(d) That the Learned Trial Judge erred in law when he held that the freezing of the End of Service Benefits was contrary to law even though it was by a Government directive.

(e) The Learned Trial Judge erred in law when he failed to consider that under the Transitional Provisions of the 1992 Constitution such a directive cannot be questioned by any Court of Law.

(f) The Learned Trial Judge erred in law when he held that the Defendant was to provide each Plaintiff with a Statement of Account of his Provident Fund Contribution when the same was not claimed even though in evidence the Plaintiff claimed they had not been given a Statement.

After considering the respective Statement of Case filed by the Defendant and the Plaintiffs, the Court of Appeal gave its judgment on 23rd May 2002. In their said judgment their Lordships set aside the order of the High Court that the Defendant should compile the Plaintiffs' entitlements by reference to section 28.04 of the Collective Bargaining Agreement, etc, but dismissed the appeal against the order that the Defendant should provide each of the Plaintiffs with a statement of account of his Provident Fund Contribution.

The Final Appeal

The Plaintiffs too were dissatisfied with this judgment and filed an appeal against it on 12th June 2002 to Your Lordships court. Not unnaturally, the complaint was principally against that part of the decision of the Court of Appeal which upheld the Defendant's contention that the freezing of the Plaintiffs' End-of-Service Award was done upon a (PNDC) government directive and was accordingly not questionable in any court of law under the Transitional Provisions of the 1992 Constitution. Only one ground of appeal was given in the Notice of Appeal: viz: That the judgment was against the weight of evidence.

My Lords, it is quite clear to me that the controversy separating the parties has very grave implications for labour relations in this country. The Plaintiffs are inviting Your Lordships to review the entire evidence and then decide whether the Court of Appeal were right in upholding the Defendant's defence based on government directive freezing the Plaintiffs' End-of-Service Benefits and also the Defendant's submission that the freeze was an act or decision of the PNDC Government and so was caught by Section 34 (5) of the Transitional Provisions of the Constitution, 1992.

My Lords, I must remind myself that the judicial function is to find the facts in issue and the facts relevant to the facts in issue and then apply the law. The Court of Appeal summed up the position admirably when it pointed out that "the pivotal issues in this case must be gleaned from the claims put before the court and the evidence led in support thereof.

The facts in issue are fairly straight-forward. The Plaintiffs claimed payment of what they perceived to be their entitlements upon their being declared redundant by the Defendant. In particular, they thought that they were entitled to receive an End-of-Service Benefit under their Collective Agreement. They put in a claim for this. The learned judge agreed that the Plaintiffs were so entitled. The Defendant disagreed. Rather it claimed that it had paid all entitlements due to the Plaintiffs under the Collective Agreement. Alternatively, if some money was not paid, this was because the PNDC government had imposed a freeze on end-of-service payments. In sum, these are the rival positions.

Plaintiffs' entitlements under their Collective Agreement

My Lords, I have demonstrated above that the events that culminated in the termination of the Plaintiffs' employment with the Defendant constituted redundancy, rather than redeployment. Now, let us assume that there was no section 34 (5) of the Transitional Provision of the 1992 Constitution. How would the rival positions stand? In other words what, if any, would have been paid to the Plaintiffs on their being declared redundant? The Plaintiffs tendered in evidence the Collective Bargaining Agreement between the Plaintiffs' union—(I.C.U) and the Defendant, Exhibit B. Section 20 of Exhibit B dealt with Termination of Service, section 23—Redundancy, Section 28.03—Long Service Award and section 28.04—End of Service Award.

Section 10 of the Industrial Relations Act 1965 (Act 299) provides:

“10 (1) An agreement concluded by a trade union through a standing negotiating committee shall, so far as the terms of the agreement permit, apply to(a) all employees of the class specified in the certificate; and(b) all their employers.(2) The provisions of a collective agreement under this Act concerning terms of employment and termination of employment, and personal obligations imposed on, and rights granted to, an employee or employer shall be regarded as terms of a contract of employment between each employee to whom the provision applies and his employer.(3) Any provisions having effect as terms of a contract of employment under subsection (2) shall continue to have effect so long as they have not been varied by agreement of the parties or in pursuance of this Act.4) The rights conferred on an employee by a collective agreement under this Act shall be rights which cannot be waived by the employee and, if there is any conflict between a term of a collective agreement under this Act and the terms of any contract not contained in such a collective agreement, then the collective agreement shall prevail, whether or not the contract was concluded before the collective agreement".

Apart from this provision in the Industrial Relations Act 1965 (Act 299) there was also in existence in 1990 when this dispute surfaced, the Labour (Amendment) Decree 1969, (NLCD 342). Section 35 of this Decree provided that the amount of any severance pay to be paid under paragraph 34 of this Decree as well as the terms under which payment is to be made shall be matters for negotiation between the employer or his representative and the employee or his representative. This provision has been repealed and re-enacted with some minor modification in section 65 (4) of the Labour Act 2003 (Act 651). In practice, if a Collective Agreement already has provision on redundancy payment then that provision applies and there is no need to resort to section 65(4) of the Labour Act 2003. This is particularly so since under section 10(4) of the Industrial Relations Act 1965 (or section 105 (4) of the Labour Act 2003), the rights conferred on a worker by a Collective Agreement shall not be waived by the worker.

At this juncture, we can pose and answer two questions:—

Did Exhibit B provide for the payment of compensation for redundancy to the Plaintiffs? If so, how was it to be computed?

It is a basic rule of construction that a document must be read as a whole with a view to ascertaining the intention of the maker and thus give effect to and effectuate his true intentions. See Boateng v. Volta Aluminium Co. Ltd. (1984-86) GLRD 85sic. As I have pointed out above sections 20, 23, 28.03 and 28.04 of Exhibit B have some relevance in answering the questions posed above.

Section 20 (a) Termination of Service

An employee whose services are terminated or who is asked to resign as a result of committing a breach of any other provision warranting (termination?) in this Agreement shall be given one month notice or paid a sum equivalent to his salary for one month.

Section 23—Redundancy

Where for one reason or another, the Corporation is compelled to declare any number of employees redundant, the employer shall give the Union two (2) calendar months notice in advance of final action being taken.

Section 28.03—Long Service Award

Employees who have served the corporation for more than seven (7) years shall be entitled to the following as Long Service Award in addition to a Certificate.

Seven (7) years continuous service ¢2,000.00

Ten (10) years continuous service One month salary plus Wrist Watch

Fifteen (I5) years continuous service One and a half month's salary plus Wall clock

Twenty (20) years continuous service Two months salary plus Table Fan

Twenty Five (25) years continuous service Two and a half months salary plus Standing Fan

Thirty (30) years continuous service Three months salary plus Table Top Fridge

Section 28.04—End of Service Award

The following shall be the provision of End-of-Service Award to employees who are covered by this Agreement on death or on leaving the service of the Corporation other than summary dismissal. 5 - 10 years service - 25% of employee's basic annual salary for each completed year of service. 11 - 15 years service - 35% of employee's basic annual salary for each completed year of service. 15 years and above - 47.5% of employee's basic annual salary for each completed year of service.

Even though section 23 was headed "Redundancy" it may be argued that it made no specific provision for the computation of the quantum of payments. That is true, but it dealt with notice of impending redundancy to the union.

Section 28.04 as we have noted above, provides End-of-Service Award to employees who are covered by Exhibit B., on death or on leaving the service of the Corporation other than summary dismissal (my emphasis).

The Labour (Amendment) Decree, 1969, (NLCD 342) described payment for redundancy as payment for loss of employment. The new Labour Act refers to it as compensation for the severance of worker-employer relationship. There is no doubt that both statutory provisions envisage loss of employment by the worker. In this case, the Plaintiffs were terminated. In my view, they are entitled to be paid compensation for loss of employment. The controversy whether End-of-Service Award is the same as End-of- Service Benefit is sheer sophistry. I hold that they are one and the same thing.

In his evidence-in-chief the 1st Plaintiff, Mr. James Baiden said:

"I have no idea as to the computation of the figure against my Statement of Account for End-of-Service Benefit. Our Collective Agreement covers End of Service Award. It is in Exhibit B. I have my final Statement of Account and I want to tender it in evidence".

It was tendered without objection as Exhibit G. (Page 173) Item 3 in Exhibit G shows "'End-of-Service Benefit (Balance of 60%) was ¢1,646,014.53". During the hearing of this appeal, this Court invited Learned Counsel to submit any paper or information which their clients had in their possession or custody concerning the "freeze" which might assist the Court come to a just and fair decision. Pursuant to this invitation, Learned Counsel for the Defendant submitted to the Registry of this court a sheath of papers, the top one of which was headed PRESS RELEASE dated 19th December 1990. I will discuss this document later in this judgment. Immediately below the "Press Release" were 7 other papers, the first of which was entitled GRAPHIC CORPORATION—REDEPLOYED STAFF. The name of the 1st Plaintiff, Mr. James Baiden is the second on that list of names. This paper obviously contains the particulars of payments made to the employees declared redundant by the Defendant. The second column is headed "End of Service" and the amount apparently paid to Mr. Baiden is ¢1,646,014.53. It tallies exactly with the figure stated in Exhibit G.

In his Address to the High Court, Learned Counsel for the Plaintiffs annexed schedules. (see pages 119-121). These Schedules explained what the 1st Plaintiff considered as the right computation of payments to be made to him. On schedule 1, his "End-of-Service" Award is computed at ¢13,376,65.31. Schedule 2 contains explanatory notes and schedule 3 shows the amount claimed by the 1st Plaintiff as being outstanding and payable to him.

I have considered the two computations submitted by the Defendant and the Plaintiff (Baiden), respectively, and I have come to the firm conclusion that the computations in the schedules 1, 2 and 3 accord with sections 20 and 28.04 of the Collective Agreement, Exhibit B. In the circumstances, and subject to what I will say soon on the whole issue of the freezing of End of Service Benefit by the P.N.D.C directive and the effect of section 34(5) of the Transitional Provisions of the 1992 Constitution thereon, the Defendant's contention that they had paid all that was due to the Plaintiffs had not been made out. For example, I am persuaded that the sum of ¢1,646,014.53 paid the 1st Plaintiff by the Defendant as 60% of his End of Service Benefit cannot be correct. It appears it was based on a statement in Exhibit 3 — ie "two months severance pay shall be paid to the junior staff and four months salary for senior staff". That is without legal basis. Under section 10 (2) and 10 (4) of the Industrial Relations Act 1965 (Act 299) it ought to have been based on section 28.04 of Exhibit B. In my view, whether a person resigns or is declared redundant, he is leaving the service of the Corporation. It will be clearly a traverstysic of justice if a worker who resigns can expect to be paid under section 28.04 of Exhibit B, but if the same worker is declared redundant by his employer, he can only get four months salary. In my view, neither the Ministry of Labour nor the Tripartite Committee, nor even a meeting of the Unions and Management could provide new rules on termination of employment as long as rules property negotiated by the joint standing negotiating committee set up under section 5(1) of the Industrial Relations Act 1965 (Act 299) exist. As I have explained above, section 28.04 of Exhibit B had become a term of contract of each affected employee by section 10(2) of Act 299 and the right conferred by the said section 28.04 in the Collective Agreement could not be waived by an employee even if he went through the motions of a waiver. See Nartey-Tokoli v. Valco. Per Justice Taylor J.S.C. at (1989—90) 2 GLR 341 at 361.

The "Freeze" and Section 34 (5) of Transitional Provisions

Section 34 (5) of the Transitional Provision of the 1992 Constitution states:

"It is not lawful for any court or tribunal to entertain an action instituted in respect an act or omission against a person acting or omitting to act, on the instructions or authority of the Provisional National Defence Council or the Armed Forces Revolutionary Council or a member of the Provisional National Defence Council or the Armed Forces Revolutionary Council and alleged to be in contravention of any law, whether substantive or procedural, in existence before or during the administration of the Provisional National Defence Council or the Armed Forces Revolutionary Council"

The substantive claim in the Plaintiffs' action was for a declaration that "their redeployment or termination of their appointment or howsoever called is wrongful, unlawful, null and void and of no legal effect.

The Plaintiffs additionally made subsidiary claims aimed at securing appropriate benefits or payments to themselves as a result of their redeployment or termination. There was not the slightest allegation that their action sought to challenge anything done or omitted to be done by or on the authority or instructions of the PNDC or the AFRC.

The Plaintiffs' case was that there were provisions in their collective agreement, Exhibit B, which governed these benefits or payments they claimed. They prayed that if those provisions were used, they would have received considerably higher sums than were actually paid to them.

The Learned High Court Judge rightly held in my opinion that the Defendant was right in terminating the Plaintiffs' employment, meaning that it was not wrongful to terminate the Plaintiff's employment. I have stated earlier in this judgment that Learned Counsel for the Plaintiffs did not focus his attack on the real controversy in dispute. According to the Plaintiffs' subsidiary claims the major issue was the quantum of compensation payable to the Plaintiffs in the events that happened. To determine it let us keep in mind one fundamental principle of employment law.

The ordinary employer is free to act in breach of his contract of employment and if he does so his employee will acquire certain "private law" rights and remedies in damages for wrongful dismissal, compensation for unfair dismissal, an order for reinstatement, etc. The reason for this proposition is that the court will not order specific performance of an ordinary contract of employment!

There is confusion in this area of the law because, counsel have ignored this fundamental principle of common law. Let me hasten to add that parliament can underpin the position of public authority employees by directly restricting the freedom of the public authority to dismiss, thus giving the employee "public law" rights. It is when this condition exists that a dismissal in breach of that parliamentary intervention, can make the termination null and void. A reading of authorities such as R. v. East Berkshire Health Authority, ex parte Walsh (1958) 1 QB 152, Ridge v. Baldwin (1964) AC 40, Malloch v. Aberdeen Corporation (1971) 1 WLR 1578, Bank of Ghana v. Nyarko (1973) 2 GLR 265 makes the position absolutely clear. In Ridge v. Baldwin (supra) Lord Reid explained that the House of Lords upheld the claim of Ridge for breach of natural justice on account of two things.

(1) Ridge was not an employee of the Watch Committee

(2) Section 191(4) of the Metropolitan Corporations, Act (1882), limited the authority of the Watch Committee to remove him except for statutory cause shown. And that could not be shown unless he was heard!

The dichotomy is not between private and public employees. It is between those employees of public authorities who have Parliamentary intervention in their employment contracts and those who do not.

My Lords, in the case before you, there was no public law element in the Plaintiffs' contract of employment. The Industrial Relations Act 1965 (Act 299) was an Act of general application. It applied to all employees who were covered by a collective bargaining certificate. In sum, the Defendant was a private employer like many others in the country. A dismissal of any of its employees will be valid, subject to the payment of damages, etc, as explained above. The Court of Appeal decision in Bank of Ghana v. Nyarko (supra) is sound authority and I fully indorse it.

Whatever may be the correct interpretation of the sections in Exhibit 3, quoted above, the Defendant's position was that there was a circular issued by the PNDC Government which froze all end of service benefits of civil and public servants up to and including 31st December 1990. The argument continued that by virtue of section 34 (5) of the Transitional Provisions of the 1992 Constitution, the jurisdiction of the courts to adjudicate on the Plaintiffs' claim, was ousted. Learned Counsel for the Plaintiffs argued that this was not correct. In my view, he had a good case but his argument was not focused and his analysis was rather shaky and even clumsy. That, notwithstanding, his ground of appeal in this court was the omnibus ground—ie, the judgment was against the weight of evidence. This enables this court to consider the appeal in the true context of are-hearing.

Mr. Justice Julius Ansah, JA. (as he then was) writing the judgment of the Court of Appeal said "that the End of Service Benefit that unarguably was said to be the same as End of Service Award, was frozen in 1990 by the Government was confirmed in evidence by the Representative of the Chief Labour Officer, Mr. Adisa Sulley. I have no reason to doubt his veracity on this assertion, for, who and when the End of Service Benefit was frozen is a notorious fact of which this court can take judicial notice". With all respect to the Learned Judge, I cannot reconcile the position he took with the actual evidence available to him. Mr. Sulley's evidence touched on two matters:—

(1) The fiat, which was permission from the Ministry to declare redundancies. As he rightly conceded, the fiat was not a legal requirement. It was purely an informal supervision of redundancy procedures by the Ministry of Employment and Social Welfare to ensure that employees got a fair deal.

(2) The Freeze. On this his evidence was that "the Government in December 1990 came out that all Corporations, State Organizations having End of Service Benefits should be frozen, and then arrange with the unions about payment to these people who are contributories. So from then on it became the arrangement for each organization, some paid, other rescheduled payment So from January 1991 it was assumed that no corporation, etc was to have an End of Service Benefit in the Collective Agreement” (emphasis supplied)

In his written submissions filed on behalf of the Defendant/Appellant/Respondent Learned Counsel wrote at pages 1 and 2: "In December 1990, however, the Government of the Provisional National Defence Council (PNDC)' directed all public Corporations and State Organizations having End of Service Benefits (ESB) to freeze same and to arrange with the Unions about payments to their employees entitled to such benefits up to the end of December 1990 (emphasis supplied). Pursuant to this directive, the Respondent froze the End of Service Benefit's payable to its employees, including the Appellants, and computed the benefits due to each employee as at the end of December 1990. Arrangements were then made to pay the monies due to each employee subsequently".

If that is the position of the Respondent, then where does section 34(5) of the Transitional Provisional of the 1992 Constitution come in?

I have earlier referred to the PRESS RELEASE dated 19th December 1990. It was signed by Mr. D.S. Boateng, then PNDC Secretary for Mobilization and Social Welfare and Mr. A. K. Yankey, Secretary-General of the Trade Union Congress.

The Press Release emphasized that there was misinterpretation (my emphasis) of the directives issued earlier by the Government to Chief Executives of State-owned Enterprises in respect of End of Service Benefits. It went on to explain that Management and Trade Unions were asked to meet to negotiate on the End-of-Service-Scheme with a view to freezing the accumulated benefits with effect from 31st December 1990. It was also decided that these negotiations should agree on a framework for settlement of the accumulated benefits.

In my view, this document shows that perhaps the only matter that was notorious in the country was the idea that there was a circular that End of Service Benefits were frozen. What other facts were in the public domain? Do members of the public remember that the key word then was "consolidation" of money benefits rather than a freeze? It is amazing that during the entire trial including our invitation to the parties, the Defendant could not produce a single copy of the Daily Graphic (or the "People's Daily Graphic" as it was probably then called) in which the freeze was reported. So how was the Public informed of the details of the so-called "freeze"? Fortunately, we have the Press Release. Nowhere does it suggest that a new formula was imposed on management and affected workers by which the End of Service Benefits were to be determined.

What was meant by the freeze then? Mr. Adisa Baba Sulley, D.W.2 provided the answer. At p. 84 lines 18-25 of the record he said: "The Government in December 1990 came out that corporations, state organizations having End of Service Benefits should be frozen and then arrange with the unions about payment to these people who are contributors. So from then on it became the arrangement for each organization. Some paid, others rescheduled payment". He continued at line 28 thus: "So, from 1991 it was assumed that no Corporation, etc was to have an End of Service Benefit in the Collective Agreement". That was the rationale behind the directive. It was not to deprive any worker of his accumulated benefits.

It was to stop the practice of paying End of Service Benefits after the backlog of accumulated benefits had been cleared. The word "freeze" was used, in my opinion, to denote that no further additions were to be made to the amounts already accumulated. The Press Release said the Standing Committee discussed a number of issues bearing directly on the End of Service Benefits including the magnitude of the total amount involved, its payment and over-all effect on the National Economy. But the PNDC never directed that End of Service Benefits were to be forfeited. It was to be paid if possible, in bulk; otherwise over a period of time. What the directive insisted upon, (even though it was not said in so many words) was that the practice of aggregating End of Service Benefits was to cease with effect from 31st December 1990. So when an employee who has been declared redundant complains that what the Defendant has paid to him as End of Service Benefit is less than what he is entitled to, section 34(5) of the Transitional Provisions has relevance only if he computes his claim beyond 31st December 1990. He is not challenging the directive. He is entitled to say the calculation of the "accumulated benefits " due to him is wrong. By so doing he is in fact admitting the force of the directive.

My Lords, permit me to remind you that there was an earlier "draconian freeze" with workers of Ghana Cocoa Board. That was so severe that the PNDC Government passed the Ghana Cocoa Board (Re-Organization and Indemnity) Law, 1985. (PNDC Law 125). It conferred power on the Board to terminate the employment of any employee of the Board on ground of redundancy. It empowered the Board to pay such severance award to an employee as the Board might determine subject to such terms and conditions as the PNDC might direct. In particular, section 3 of the Law provided that notwithstanding anything to the contrary in his contract of employment or any Collective Agreement applicable to him no redundancy award (my emphasis) shall be granted to an employee of the Board whose employment is terminated under section 1 of this law. Section 5 ousted the jurisdiction of the court to entertain any actions arising out of the redundancy exercise. Further, section 6 abated all actions pending against the Board before the commencement of the Law in respect of claims consequent upon the redundancy exercise.

I think, for those of us who remember, this Law was most unpopular even for the PNDC. Little wonder that this time around when the directive was to all state-owned enterprises, etc, there was no attempt to wipe out accumulated benefits. My own view is that the trauma left by the 1985 exercise may have cautioned the PNDC to tread cautiously in the 1990 redundancy exercise. One important lesson is that courts should be wary of taking judicial notice of a fact that may not be so notorious, after all!

In the result I hold that the Court of Appeal erred in holding that the Plaintiffs' action was barred by section 34 (5) of the Transitional Provisions of the 1992 Constitution. Quite frankly, it was not relevant to the issues raised at all. The Learned High Court judge gave the right decision by holding that the Plaintiffs' End of Service Benefits should be calculated by reference to section 28.04 of the Collective Agreement, Exhibit B, but seriously erred when he based himself on the illegality of the directive because it contravened Act 299 of 1965. Further, he ordered the Defendant must apply the salary of each Plaintiff at the point of retirement on 29th October 1993. That was wrong. The freeze was to take effect as from 31st December 1990. That is the cut-off date. No aggregations beyond that date were permissible; otherwise the directive would be infringed. Consequently I will amend that order by substituting 31st December 1990 for 29th October 1993. I will also delete the End of Service Award or Severance Award made to each employee. It is unarguably the same as End of Service Benefit. If a worker's payment of End of Service Benefit is calculated by reference to section 28.04 of Exhibit B he cannot also keep the End of Service Award paid to him. Subject to these amendments I will set aside the order of the Court of Appeal and re-instate the judgment of the High Court as amended by this judgment. In other words, point (d) of the judgment at page 123 of the record is dismissed; point (b) as amended, is sustained and points (a) and (c) are maintained.

COUNSEL

MR. KWAKU PANTSIL FOR PLAINTIFFS/RESPONDENTS/APPELLANTS

MR J.K. AGYEMANG FOR RESPONDENTS.