MOHAMMED HAMDU AND DAM NELSON V. THE MINISTER OF MANPOWER,YOUTH & EMPLOYMENT AND THE ATTORNEY GENERAL

JUDGMENT

ASUMAN-ADU, J.

The Plaintiffs herein brought this action against the Defendants, jointly and severally on 13th November, 2008 on their own behalf and on behalf of 120 others for the following reliefs:

1. An order for the payment to the Plaintiffs the arrears of their allowances for the months of September, October, November and December, 2007.

2. An order for payment of interest at the prevailing commercial bank rate on the total amount of the arrears with effect from September, 2007 to date of final payment.

3. General damages and costs.

The Defendants entered appearance on 11th December, 2008 and filed their statement of defence on 29th December, 2008 denying the claim of the Plaintiffs. The Plaintiffs filed a reply to the statement of defence on 20th February, 2009 together with application for directions in which the following issues were raised by them:

(1) Whether or not the 1st Defendant was the employer of the Plaintiffs.

(2) Whether or not the appointment letters issued by the 1st Defendant to the Plaintiffs stated any time limit for the employment.

(3) Whether or not the 1st Defendant has served the Plaintiffs with any notice of termination of the Plaintiffs’ appointments.

(4) Whether or not the Deputy Coordinator of NYEP, Mr. Ernest Adadey, had informed the Plaintiffs that the Plaintiffs’ employment would come to an end by 31st December, 2007.

(5) Whether or not the Hospitality Coordinator for Ghana @ 50 Secretariat, Madam Bridgette Adams, had instructed the Plaintiffs not to work elsewhere but to always standby in order to render services at any shortest notice.

(6) Whether or not the Plaintiffs have not been paid their allowances for September, to December, 2007.

(7) Whether or not the 1st Defendant had held meeting with the authorized leadership of the Plaintiffs on the non-payment of Plaintiffs’ allowances.

(8) Whether or not the Plaintiffs are entitled to the reliefs sought by them.

(9) Any other issues raised by the pleadings.

No additional issues were filed by the Defendants so on 15th April, 2009 the court set down all the issues raised in the application for direction for trial.

At the trial Plaintiffs’ case was presented by Mohammed Hamdu, the 1st Plaintiff whilst one Ernest Adadey who was once the Deputy Coordinator in charge of institutional placement of the NYEP presented Defendants’ case.

The case for the Plaintiffs is that following their successes at interviews they were employed by the 1st Defendant on behalf of the Ghana Government as Interns from December, 2006 to December, 2007 under the National Youth Employment Programme (NYEP). Before being employed, the Plaintiffs were made to attend a three months Training as well as going through Medical Examination.

By their individual terms of employment Plaintiffs were entitled to monthly allowances ranging from GH¢50.00 to GH¢150.00 depending on the qualification of each Intern. It was also a firm condition of their employment to always standby during the 13-months’ period of their employment in order to render services at any shortest notice which they complied with and did faithfully and scrupulously render services whenever they were called upon.

Plaintiffs appointment letters never stated anytime limit for their appointments and that they have not received any letters terminating their said appointments. They claim that since their appointment letters instructed them to report to the Ghana at 50 for further directives their understanding was that they were employees of the Ministry of Manpower, Youth and Employment being seconded to the Ghana at 50 Secretariat. They aver that while they were on secondment to the Ghana at 50 Secretariat, the Deputy Coordinator of NYEP, Ernest Adadey acting on behalf of the 1st Defendant herein called the Plaintiffs together in groups and overtly declared to them that the Plaintiffs’ appointments were to come to an end by 31st December, 2007 in the first instance. He went on to inform them that there was the possibility of the Plaintiffs’ contracts of employment being renewed after 31st December, 2007 for another one year to cover CAN 2008 football tournaments, African Finance Minister’s Meeting and the Aid Effectiveness Meeting, all scheduled to be held in Ghana in 2008.

The Plaintiffs further state that, the Hospitality Coordinator for Ghana at 50 Secretariat Madam Bridgette Adams, who was responsible for the affairs of the Interns, also gathered them together and informed them that their engagement at Ghana at 50 was to end on 31st December, 2007 since the Ghana at 50 celebrations were to cover the whole year of 2007. She accordingly instructed the Plaintiffs not to work at any place but to standby in order to render services at any shortest call. She further warned them that any of them found working elsewhere without first resigning would be summarily dismissed.

Plaintiffs claim they believed the officers so they scrupulously stood by waiting for calls all the times since their letters of appointment did not give them any time limit for their appointments. They aver that their services were fully employed during the AGOA and AU summits in June and August, 2007 and after their services they continued to go to Ghana at 50 Secretariat until the Secretariat was dissolved in November, 2007. In October, 2007, all of them were drafted to the AU village to undertake packing of some materials for over a week after which all of them except 30, were asked to go back and continue to standby.

The Plaintiffs were paid the agreed allowances up to only August, 2007, and that the 1st Defendant has since refused or failed to pay their allowances for the last four months of their employment, that is, September, October, November, and December, 2007, despite their repeated demands for the payment.

According to the Plaintiffs the refusal of the 1st Defendant to pay them the arrears of their allowances was unlawful; and that by their behaviour the Defendants will not pay the arrears to them unless they are compelled by an order of the court. The Plaintiffs are, therefore, entitled to their claim.

Defendant’s case on the other hand is that Ghana at 50 Secretariat wrote to the NYEP requesting for 380 interns with various qualifications ranging from SSSCE to first degree holders in various disciplines like tourism, hotel, catering and institutional management. After series of meetings with the Secretariat 380 interns were posted to Ghana at 50 Secretariat and made to understand that they were to work at the Secretariat for the period of the celebration of Ghana’s jubilee and nothing more. After the Ghana at 50 celebrations in March the Plaintiffs became redundant and a decision was taken to maintain them for use during the AGOA and AU Summit in June and August. The 1st Defendant, therefore, neither gave the Plaintiffs one year contract nor promised to pay any of the Plaintiffs for a period of 12 months whether there was work for them or not. There was no agreement of a thirteen month standby period or any arrangement to call on them at a short notice.

According to the Defendants even though the Ghana at 50 celebrations ended in March 2007 and the Plaintiffs had nothing to do in their specific line of duty, the 1st Defendant continued to pay them regularly for five extra months for no work done. After the said five months, the Chief Executive Officer at Ghana at 50 Secretariat notified the 1st Defendant that he would no longer endorse their cheques as their work with the Secretariat had ended.

While steps were being taken to get the Chief Executive Officer of the Ghana at 50 Secretariat to endorse the cheque for the August, allowances to be paid to the Plaintiffs, a meeting was held between the 1st Defendant and the leadership of the Plaintiffs and it was agreed that the Plaintiffs’ names would be put on standby so that when postings resume those of the Plaintiffs who had not secured jobs would be given priority.

The Defendants aver that the 1st Defendant’s programme deals directly with the beneficiary organizations and acts directly upon the advice of the heads of those departments. Therefore, after Plaintiffs’ work came to an end with the Ghana at 50 Secretariat, a letter was sent from 1st Defendant’s office to explain that the Plaintiffs had been kept on their payroll because they were being used for both the AU and AGOA summits and, therefore, the August payments were going to be the final payments. During the period after March 2007 when the Plaintiffs completed their work with the Ghana at 50 Secretariat all the Plaintiffs had left the Secretariat except thirty of them who were sent to the AU village.

Defendants claim, Plaintiffs are not entitled to any arrears of allowances since they did not work for the period September to December, 2007. Plaintiffs’ action is, therefore, frivolous and vexatious as they have not shown that they had done any work after August, 2007 to merit their being paid any allowances. The Plaintiffs are, therefore, not entitled to their claim.

Having reviewed the respective cases of the parties, I will go on to evaluate the evidence before the court vis-à-vis the issues this court has been called upon to resolve. . However, before I go on to consider the issues I will want to look at the burden of proof in civil cases.

The burden of producing evidence and the allocation of the burden of persuasion in civil cases is governed by Section 11(1) and (4) and Sections 14 and 17 of the Evidence Act 1973 (NRCD 323) which provides as follows:

“11(1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue.

11(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.”

“14. Allocation of burden of persuasion

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

“17. Allocation of burden of producing evidence

Except otherwise provided by law,

(a) The burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;

(b) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”

In Bank of West Africa v. Ackun (1963) 1 GLR 176 it was held in holding 2 thereof with regard to the onus of proof in civil cases as follows:

“The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof ...”

With regard to the burden of producing evidence it was held inRe Ashalley Botwe Lands; Adjetey Agbosu and others v. Kotey and Others (2003-2004) SCGLR 420 as follows:

“Under the Evidence Decree 1973 (NRCD 323) the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issues asserted and/or denied”.

In the current case the Plaintiffs have brought an action against the Defendants claiming reliefs relating to issues affecting payments of their allowances for the months of September, October, November and December, 2007 which the Defendants have denied. The onus is, therefore, on the Plaintiffs to produce sufficient evidence to prove their case against the Defendants. See the case of Fosua and Adu-Poku v. Adu-Poku Mensah-Ansah [2009] SCGLR 310. See also the case ofJASS CO LTD and Another v. APPAU and Another [2009] SCGLR 265 at 270 where Dotse JSC stated as follows:

“...We wish to observe that the burden of proof is always put on the plaintiff to satisfy the court on balance of probabilities in cases like this. Thus, where in situation, the defendant has not counterclaimed; and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claim would be dismissed...”

This court must, therefore, find out from the evidence before it whether the Plaintiffs in the current case have been able to lead sufficient evidence to establish their case on a balance of probabilities as a result of which this court must rule in their favour.

Having considered the burden of proof I will now want to consider the issues set down by this court. The issues set down for determination by this court are related so they will be grouped together as follows:

a. Whether or not by the appointment letters issued to the Plaintiffs by the 1st Defendant they became employees of the 1st Defendant.

b. Whether or not by their appointment letters, their relationship with the 1st Defendant effectively ended in December, 2007.

c. Whether or not by their appointment letters they were entitled to be paid allowances for September, October, November and December, 2007.

d. Whether or not Plaintiffs are entitled to the reliefs sought by them.

The first issue is whether or not by the appointment letters issued to the Plaintiffs by the 1st Defendant they became employees of the 1st defendant. The Plaintiffs per Mohammed Hamdu told the court that they were engaged by the 1st Defendant as interns to the Ghana at 50 Secretariat. They claim they were given appointment letters by the 1st Defendant that they were going to stay for one year. Mohammed went on to explain how they were recruited by the 1st Defendant. According to him they went to the 1st Defendant premises to apply for jobs because the 1st Defendant advertised that the youth who were graduates could apply and 1st Defendant would look for places and send them there to work. They were invited for interview at state protocol. After the interview those who qualified were asked to report at specific places. He was invited to Accra Conference Centre. When he went there he met others who had also been invited. They were invited and offered training in groups. He tendered in evidence appointment letters of some of the Plaintiffs. He claims the effective date of the appointment letters was 1st December, 2006 and that they were posted to Ghana at 50 Secretariat. The letters, however, did not state when the appointments were supposed to end. It was opened.

He further avers that when they reported at the Ghana at 50 Secretariat, they were given further training. After the training they were posted to various sections of the Secretariat where they worked continuously until one Bridgette Adams at the Secretariat told them that they did not have enough work to do at that place. She went on to tell them that they should, however, standby and at any given time they could be called to come and work.

He also said that one Ernest Adadey who was the Deputy Coordinator of the National Youth Employment Programme told them that they would work at the Ghana at 50 Secretariat for twelve months after which they would re-apply for them to be re-assigned to other institutions. He said even though they were not told when the Ghana at 50 was going to end, they were told that it was going to cover twelve months, with effect from the date they started the training. That is from 1st December, 2006 to December, 2007. The Plaintiffs, therefore, remained employees of the 1st Defendant over the period. They were, however, paid up to August, 2007 leaving their allowances for September, October, November and December, 2007 unpaid by the Defendants.

The Defendants, however, deny that the Plaintiffs were employees of the 1st Defendant. According to the Defendants per Ernest Adadey the Plaintiffs were engaged as interns and that the internship programme was more all less on the job training programme. The emphasis was on training the youth to get permanent jobs. They were, therefore, paid allowances. He explained that on recruitment, they first had to register with NYEP by completing some forms. After registration the names were put on data base and as and when a request was made by an institution those who qualified in terms of the request were sent to the said institution. After that they organized an orientation for the interns. In the case of the Plaintiffs, they were posted to the Ghana at 50 Secretariat.

According to Ernest Adadey they never told the Plaintiffs not to seek any employment outside the NYEP and that they do not do that. He said their aim was to prepare them for the mainstream employment so if one got a job he left on the very day. All that they required of them was to inform them that they were leaving in order for their names to be removed from the payroll. He said even that, when people were leaving they did not inform them so they had to do routine monitoring in order to find out those who had left for their names to be removed from the payroll. The Plaintiffs were, therefore, interns posted to the Ghana at 50 Secretariat and that they were not employees of the 1st Defendant.

Apart from the names, qualifications and allowances paid to them the contents of the appointment letters issued to the Plaintiffs were the same. I will, therefore, refer to one of them, which is Exhibit A in this judgment. It states as follows:

“Dear Sir/Madam,

APPOINTMENT LETTER

I write to inform you that following your successful selection as an intern under the National Youth Employment Programme (NYEP), you are hereby required to report to the Ghana@50 for further directives. Your effective date of attachment is December 1st, 2006.

You will be paid a monthly allowance of One Million, Three Hundred Thousand Cedis (¢1,300,000) by the National Youth Employment Programme.

As part of your internship programme, you will be required to attend an orientation/training organized by the Ghana@50 and details of this will be communicated to you by the (Ghana@50) Service.

You will be required to submit a letter of acceptance of this internship to the (Ghana at 50) within ten (5) working days after which duration, this opportunity will elapse.”

From the contents of the appointment letter as stated above, there is no doubt that the Plaintiffs were sent to the Ghana at 50 as interns. The word “intern” is defined by The Black’s Law Dictionary 9th Edition at page 890 as follows:

“An advanced student or recent graduate who is apprenticing to gain practical experience before entering a specific profession.”

The Free online Legal Dictionary also defines an “intern” and “internship” respectively as follows:

Intern: “A student or a recent graduate undergoing supervised training practical”

Internship: “A type of work experience for entry level job-seekers.”

From the definitions stated above, and by their appointment letters it is very clear that the Plaintiffs could not be described as employees of the 1st Defendant. They were trainees and the purpose of engaging them as stated by Ernest Adadey was to offer them on the job training in order for them to gain experience which would prepare them for future employment. They were, therefore, paid allowances but not salaries.

The appointment letters given to the Plaintiffs, Exhibits A, A1 to A69 state in no uncertain terms that the Plaintiffs were interns undergoing training. Also the Plaintiffs themselves stated in paragraph 1 of their statement of claim that they were interns employed in December, 2006 by the 1st Defendant under the National Youth Employment Programme. Even Mohammed Hamdu in his evidence-in-chief confirms that they were interns of the National Youth Employment Programme. I will refer to that aspect of his evidence-in-chief in this judgment as follows:

“Q: In what capacity are you testifying before this court?

A: My lord, I am here in the capacity as the leader of Ghana @ Fifty Internship, of National Youth Employment. We were elected to lead them.”

From his evidence as stated above, Mohammed Hamdu gave evidence on behalf of the Plaintiffs who were interns of the National Youth Employment Programme.

So from the evidence before the court on the issue under consideration, it is clear that the Plaintiffs were not employees of the 1st Defendant but rather they were interns engaged by the 1st Defendant under the NYEP.

The next issue for consideration is whether or not by their appointment letters the Plaintiffs’ relationship with the 1st Defendant effectively ended in December, 2007. From the appointment letters even though the effective date of attachment of the Plaintiffs at the Ghana at 50 Secretariat was 1st December, 2006 there was nothing in the letter indicating when the attachment was to end. According to Mohammed Hamdu, Ernest Adadey and Bridgette Adams of the Ministry of Youth and Employment and the Ghana at 50 Secretariat respectively, told them that the appointment letters that they were to receive were going to cover a period of twelve months at the Ghana at 50 Secretariat. After the Ghana at 50 Secretariat programme they would send them to African Cup of Nations, CAN 2008 programme and the AU Summit.

Mohammed Hamdu continued to say that they worked continuously at the Ghana at 50 Secretariat until Bridgette told them that since there was not enough work for them at the Secretariat they should standby and at any given time they would call them to come and work. According to him Bridgette warned them that any one of them who made attempt to go and seek appointment elsewhere would be dealt with. They as a result stood by. Later, they were invited to work at the AU village in connection with the AU summit. He, therefore, claims that their engagement at the Ghana at 50 Secretariat was for a period of twelve months ending in December, 2007. So to the Plaintiffs since they were made to standby until December, 2007 their relationship with the 1st Defendant continued until December, 2007.

The Defendants have denied the assertion that the Plaintiffs were made to standby until December, 2007. Ernest Adadey who gave evidence for the Defendant told the court that the aim of the internship programme was to assist the Plaintiffs to gain experience for future employment so there was no way they would ask them to standby. He said as soon as any of them secured a job outside he was at liberty to leave. All that he had to do was to inform them for his name to be removed from the payroll. He said the Ghana at 50 celebrations ended in March, 2007. However, they continued to engage the Plaintiffs till August, 2007 because of the AU summit and other conferences. He said even that, it was not compulsory for the Plaintiffs to stay on. Any of them who wanted to leave was at liberty to do so. It is, therefore, not true that they asked the Plaintiffs to standby till December, 2007 and that any one of them who secured employment elsewhere would be dealt with.

In civil cases the general rule is that the party who in his pleadings or writ of summons raises issues essential to the success of his case assumes the onus of proof. In the celebrated case of Majolagbe v. Larbi [1959] GLR 190 at page 192, Ollenu J (as he then was) held as follows:

“Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.”

In the current case the Plaintiffs through their representative, Mohammed Hamdu just mounted the witness box and repeated their allegations that they were informed by Ernest Adadey and Bridgette Adams that their engagement with 1st Defendant was to end in December, 2007 without leading some corroborative evidence to prove the allegation. It is observed that in proving the allegation Plaintiffs should have invited Ernest Adadey and Bridgette Adams to give corroborative evidence but they did not. In the case of Ernest Adadey, he was rather invited by the Defendants to give evidence. In the process he denied the allegation and stated that it was not possible to ask them to standby till December, 2007 since they were interns being prepared for future employment but the Plaintiffs could not discredit his evidence through cross-examination.

From the principle on the onus of proof as provided by the Evidence Act in sections 14 and 17, since it is the Plaintiffs who have raised the issue that they were made to standby until December, 2007 and that they were not to seek employment elsewhere within the period, the onus is on them to lead sufficient evidence to prove it. From the evidence before the court on the issue of Plaintiffs being asked by the 1st Defendant to standby till December, 2007, and also not to seek employment elsewhere, the Plaintiffs have not been able to discharge the burden and standard of proof on them to prove that truly, they were asked to standby as a result of which they stood by till December, 2007 waiting to be invited by the 1st Defendant to be posted to other institutions. See the case ofZabrama v. Segbedzi [1991] 2 GLR 221 in which Kpegah JA (as he then was) stated as follows:

“... a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.”

In the current case the Plaintiffs bear the burden of proving the existence of facts which show that truly they were made to standby till December, 2007 and that they were not to seek employment elsewhere. This they have failed to do. In view of that it is, my opinion that the Plaintiffs, being interns of the 1st Defendant posted to the Ghana at 50 Secretariat were not asked by the 1st Defendant to standby as alleged by them and that their relationship with the Plaintiffs ended in August, 2007 and not in December, 2007.

The next issue for consideration is whether or not by their appointment letters they were entitled to be paid allowances for September, October, November and December, 2007.

Since the Plaintiffs’ relationship with the Defendants ended in August, 2007 if truly, they stood by till December, 2007 waiting to be invited by the 1st Defendant to be posted to any institution then they did so at their own risk. As interns, they could not be asked to standby and if even they were asked to do so they were not bound by that. They could leave at any time they got a suitable employment elsewhere. However, if in actual fact they worked for the 1st Defendant in September, October, November and December 2007, then they are entitled to be paid for those months. From the evidence before the court Plaintiffs have not been able to lead sufficient evidence to prove that indeed they worked for the 1st Defendant in September, October, November and December, 2007. The evidence rather shows that they allegedly just stood by within the period without working for the 1st Defendant. So on a balance of probabilities, the evidence adduced by the Defendants on the issue under consideration is preferred to that of the Plaintiffs. It is, therefore, the opinion of this court that the Plaintiffs did not work for the months of September, October, November and December, 2007 so they cannot be paid for those months. They are, therefore, not entitled to be paid allowances for those months.

In the light of the foregoing, it is my view that the Plaintiffs are not entitled to any of the reliefs endorsed on their writ of summons. Plaintiffs’ action against the Defendants is as a result dismissed and judgment entered for the Defendants. No order as to costs.

COUNSEL

MR. YAO YEGBE FOR THE PLAINTIFFS

MS. ROSALINE FOR THE DEFENDANTS