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Contract of employment -
Compensation - Ex-gratia award
- Section
174 of the Companies Code, 1963
(Act 179) - Section 2(1) of the
Bodies Corporate (Official
Liquidation) Act, 1963 (Act 180
- Whether or not plaintiffs are entitle to
compensation for loss of
employment arising from the
official liquidation - Whether
or not
plaintiffs are entitle to
a form of ex-gratia award and/or
end-of service benefits, and/or
work entitlements - Whether or
not
plaintiffs claims was
statute-barred - Whether the
plaintiffs were not employees of
the BSL
HEADNOTES
The case pleaded by the
plaintiffs was that they served
in various capacities whilst in
the employment of the BSL. That
the BSL having been divested,
they as ex-employees were
entitled to be compensated in
line with existing practice
notwithstanding all their
efforts to be paid their due
entitlements. All appeals to the
Government yielded no results,
despite assurances given to them
by some state officials, The 1st defendant
averred that the BSL passed a
special resolution under section
174 of the Companies Code, 1963
(Act 179) to wind up the company
by way of an official
liquidation in accordance with
Part 1, section 2(1) of the
Bodies Corporate (Official
Liquidation) Act, 1963 (Act
180). They further averred that
the Government could not be sued
as it was just a shareholder of
BSL and once official
liquidation was commenced it was
only the 2nd defendant
that could be sued. That it was
the duty of the liquidator to
ensure that the creditors of the
company were paid when the
assets of the company had been
realized. That the plaintiffs’
petitions were responded to out
of courtesy and these have no
binding effect , the plaintiffs
testified that they were
employed in the service of the
defunct BSL; that they enjoyed
all benefits as employees
including promotions and social
security contributions -
HELD -
To recap, the evidence confirmed
that the BSL only engaged their
services as and when needed.
After each engagement they were
discharged and paid off. That
explains why for more than ten
years before the BSL was
liquidated the 1st
and 2nd plaintiffs,
for instance, did no work for
the BSL and got no remuneration
or benefits as a result. The 1st
plaintiff’s last engagement was
on 04 November 1985 and was
discharged on 30 September 1986,
whilst the 2nd
plaintiff was last engaged on 21
July 1982 and was discharged on
05 September 1984, eleven and
thirteen years respectively
prior to the liquidation of the
BSL. If they were employees one
would ask: why were they not
paid any emoluments whilst they
remained disengaged from their
employers? That explains why
they were entitled to work with
other shipping lines, without
attracting any form of reprimand
from BSL. The 1st
plaintiff admitted he worked
with another shipping line even
whilst he claimed he was in the
employment of the BSL. The truth
of the matter was that these
seamen were available for any
shipping line that needed their
services to fall upon. That
explains why some of the
plaintiffs were able to work for
other shipping lines at a time
they claimed to be in the full
employment of the BSL. The only
logical conclusion to be drawn
from all these is that they were
not under any bond or obligation
to work for only the BSL, they
were at liberty to sail with
other vessels. In these
circumstances the court below
was justified in rejecting the
plaintiffs’ claim to be
employees.
In the result we find no merit
in the appeal which we
accordingly dismiss.
STATUTES REFERRED TO IN JUDGMENT
Companies Code, 1963 (Act 179)
The Bodies Corporate (Official
Liquidation) Act, 1963 (Act 180
Ghana Shipping Act, 2003, (Act
645)
Labour Act, 2003 (Act 651).
Labour Decree, 1967 (N.L.C.D.
157),
Merchant Shipping Act, 1963 (Act
183),
Labour Ordinance, Cap 89
Contracts Act, 1960 (Act 25),
CASES REFERRED TO IN JUDGMENT
BUOR v. KOJO (1962) 2 GLR 30;
B.B.C.
TRADING CO., LTD v. BASSIL
(1963) 1 GLR 209;
AKWEI v. AGYAPONG (1962) 1 GLR
277,
ADDO v. GHANA CO-OPERATIVE
MARKETING ASSOCIATION, LTD.
(1962) 1 GLR 418.
BRACEGIRDLE v. HEALD (1818), 1
B. & Ald 722; 106 E.R. 266
SNELLING v. HUNTINGFIELD (LORD)
(1834) 1 Cr. M. & R. 20; 149 E.R.
976
BRETT v. PHILIPS (1858), 1 F. &
F. 398.
JAMES v THOMAS H. KENT & CO,
LTD., (1950) 2 All E.R. 1099;
(1951) 1 K.B. 551
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL
K. N. ADUAMAKO ACHEAPONG
ESQ. FOR THE PLAINTIFFS
/RESPONDENTS/APPELLANTS.
E. S. GOKA ESQ. FOR THE 2ND
DEFENDANT/APPELLANT/ RESPONDENT.
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JUDGMENT
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BENIN, JSC:-
The
plaintiffs/respondents/appellants,
hereafter called the plaintiffs
who claimed to be ex-employees
of the defunct Black Star Line (BSL),
brought an action against the 1st
defendant/appellant/respondent,
hereafter called the 1st
defendant, and the Divestiture
Implementation Committee, later
substituted by the Official
Liquidator as the 2nd
defendant/appellant/respondent,
hereafter called the 2nd
defendant, claiming compensation
for loss of employment arising
from the official liquidation of
their employer, the BSL. The
endorsement on the writ of
summons reads: ‘The plaintiffs
claim against the defendants
jointly and severally is for
uniform adequate compensation in
the form of ex-gratia award
and/or end-of service benefits,
and/or work entitlements’.
The case pleaded by the
plaintiffs was that they served
in various capacities whilst in
the employment of the BSL. That
the BSL having been divested,
they as ex-employees were
entitled to be compensated in
line with existing practice.
However, nothing was paid to the
plaintiffs, notwithstanding all
their efforts to be paid their
due entitlements. All appeals to
the Government yielded no
results, despite assurances
given to them by some state
officials.
The 2nd defendant
whilst denying that the
plaintiffs have any case against
it, pleaded that any such claim
was statute-barred. The 2nd
defendant averred that payment
of compensation is a matter of
law or deducible from a
collective bargaining agreement
or contract but the statement of
claim has not provided any basis
for the claim and it’s thus
unmaintainable.
The 1st defendant
averred that the BSL passed a
special resolution under section
174 of the Companies Code, 1963
(Act 179) to wind up the company
by way of an official
liquidation in accordance with
Part 1, section 2(1) of the
Bodies Corporate (Official
Liquidation) Act, 1963 (Act
180). They further averred that
the Government could not be sued
as it was just a shareholder of
BSL and once official
liquidation was commenced it was
only the 2nd
defendant that could be sued.
That it was the duty of the
liquidator to ensure that the
creditors of the company were
paid when the assets of the
company had been realized. That
the plaintiffs’ petitions were
responded to out of courtesy and
these have no binding effect.
Evidence was led at the hearing.
In a terse statement, the trial
High Court judge entered what he
described as judgment for the
plaintiffs on 10th
March 2009. This is the entire
record of the judgment at page
163 of the record of appeal,
called the record:
“BY
COURT: Judgment was entered in
this case as follows:
(a)
Plaintiffs herein
have been found to be
ex-employees of the defunct
Black Star Line Limited.
(b)
Plaintiffs herein are to be paid
adequate compensation in the
form of ex-gratia award by 2nd
defendant herein i.e. the
Official Liquidator of Black
Star Line Limited.
(c)
Plaintiffs together
with their Lawyer are to sit
down with the Official
Liquidator to determine how much
is to be paid to each plaintiff
in respect of the ex-gratia
award as to the number of years
each worker have (sic) served.
This is to be done within (30)
thirty days. I award plaintiffs
cost of GH₵2000.00.”
Clearly this could not pass for
a judgment of a court which has
taken evidence from witnesses.
There was no evaluation of the
facts, let alone for the court
to make findings of fact. There
was not a single reason given
for the decision. In these
circumstances one would have
expected the first appellate
court to have sent the record
back to the trial High Court to
make the appropriate findings of
fact and give reason/s for its
decision/s. The Court of Appeal
rightly condemned this but
decided to do what the trial
court failed to do. It is
believed the trial court which
presents this kind of incomplete
judgment would be called upon to
complete what it is required by
law to do: to make findings of
fact and enter judgment for a
party on a balance of
probabilities, and give reasons
for the choices it makes. The
findings of fact as well as the
reasons given for the decision
enable the party aggrieved or
affected by the judgment to
decide to appeal and on what
grounds.
Nonetheless the 2nd
defendant was able to appeal
against the trial court’s
decision to the Court of Appeal
on three grounds including the
omnibus one that the judgment
was against the weight of
evidence. The Court of Appeal
took the appeal and reviewed the
entire evidence on record and
allowed same in a well-reasoned
judgment dated 15th
November 2012, and set aside the
decision of the High Court.
At
the hearing before the trial
court, the plaintiffs testified
that they were employed in the
service of the defunct BSL; that
they enjoyed all benefits as
employees including promotions
and social security
contributions. They normally set
to sea voyage on BSL registered
vessels. On each voyage they
would report to the captain and
upon their return they would be
discharged and paid their
entitlements. They would then
have to wait until they were
called to duty again; the period
of waiting was indeterminate in
each case. There was evidence
that apart from the BSL some of
the plaintiffs were able to work
with other shipping lines or
vessels that required their
services. After reviewing all
the evidence, oral as well as
documentary, the Court of Appeal
concluded, inter alia, that the
plaintiffs were not employees of
the BSL and that the documents
they put in evidence did not
constitute a contract of
employment.
Dissatisfied with the judgment
of the Court of Appeal, the
plaintiffs have appealed to this
court on the following grounds:
i.
The judgment of the Court
of Appeal was against the weight
of evidence and the court erred
in failing to consider the
surrounding circumstances which
impelled the
plaintiffs/respondents to come
to court with only Exhibit ‘A’
and nothing further to prove
their contract of employment
with the erstwhile Black Star
Line.
ii.
The Court of Appeal
misdirected itself and ignored
the fact that non-employees or
casual workers are not promoted
to higher rank as evidenced by
the case of 1st
plaintiff/respondent/appellant,
Alexander Yaw Aboagye.
iii.
The Court of Appeal
misdirected itself and ignored
the fact that non-employees or
casual workers are not migrated
into the Social Security
Contribution by their employers
in the teeth of the evidence of
the 2nd
plaintiff/respondent/appellant,
Moses Essien’s Certificate of
Membership, Exhibit J.
iv.
The Court of Appeal
misdirected itself in holding
that neither exhibit C and C1 as
well as the previous exhibits
discussed, i.e. exhibits A, B
and H mature into a contract of
employment of any of the
plaintiffs with the defendant
since against the backdrop of
liquidation of their erstwhile
company the plaintiffs could
only come to court with what
they could lay their hands on.
It
appears all the grounds of
appeal could be taken under the
omnibus ground that the judgment
was against the weight of
evidence. Counsel for the
plaintiffs said the nature of a
seaman’s contract was different
from other forms of contract. He
referred to section 108 of the
Ghana Shipping Act, 2003, (Act
645) and said the owner or
master of every ship shall enter
into an agreement with every
Ghanaian seaman. The operative
word, according to Counsel, is
‘agreement’, which in this
context means a contract of
employment. He went on to refer
to section 112(1) of the Act and
said the employer was not
entitled to be given a copy of
the agreement. He cited other
provisions where the master was
enjoined to post a copy of the
agreement on the ship and also
the employee was literally
supposed to memorise the
contents of an agreement. It was
thus clear that the plaintiffs
were not in a position to
produce a copy of the agreements
since they were not entitled to
be given copies. Counsel
submitted that on the strength
of the available evidence, oral
as well as documentary, the
plaintiffs were permanent
employees of the BSL and not
contract or casual workers as
submitted by the defendants.
Besides Act 645, Counsel for the
plaintiffs also cited the Labour
Act, 2003 (Act 651).
It
is worthy of note that at the
High Court as well as before the
Court of Appeal, and even before
this court, the plaintiffs
relied on these two enactments,
namely Act 645 and Act 651. The
defendants reacted to the
arguments founded on these two
enactments without raising any
question as to their
applicability. The Court of
Appeal equally relied on these
enactments without question. If
an Act of Parliament is not
expressed to have retroactive
effect, parties and the court
have no right to apply it to the
facts of a case when the events
giving rise to the cause of
action arose before the coming
into force of the Act in
question. In the instant case,
the parties claimed to have been
employed sometime in the 1980’s;
the BSL was liquidated in or
about the year 1997. The
enactments that the parties and
the courts below relied upon
were passed into law in 2003,
long after the company had
ceased to exist. By what legal
principle were the provisions of
these enactments applied to the
facts of this case when the
contracts they relied upon were
allegedly entered into in the
1980’s? How could these laws
apply to a company which had
ceased to exist when the
enactments did not say so? These
enactments clearly do not apply
to this case. The result is that
the courts below relied upon
inapplicable laws. However, as
an appellate court, this court
has the opportunity to correct
the errors committed by the
courts below, as a result of
misdirection by Counsel in the
case.
Let us then set out the relevant
laws before proceeding any
further. It is noted that
Counsel for the plaintiffs has
consistently relied upon Act 645
and Act 651 because the
plaintiffs, apart from being
seafarers, were also regular
employees of the BSL. In this
dual capacity, their employment
would primarily be regulated by
the labour laws applicable to
all workmen in the country. And
then in their capacity as
seafarers their employment would
also be regulated by the
appropriate shipping laws
peculiar to the kind of job that
they were doing. Thus the Labour
Decree, 1967 (N.L.C.D. 157),
since repealed by Act 651 and
the Merchant Shipping Act, 1963
(Act 183), since repealed by Act
645 were the applicable laws at
all times material to this case.
It is noted that at the time the
BSL was set up in the early
1960’s the Labour Ordinance, Cap
89, (1951 Rev. Vol III) as well
as section 4 of the Statute of
Frauds, 1677 were the applicable
laws in force. But as at the
date the plaintiffs were
employed, the Labour Ordinance,
Cap 89 and the Statute of
Frauds, in so far as it related
to contract of employment, were
no longer the laws in force.
Hence we would rely on NLCD 157
and Act 183 to determine the
arguments and the facts in
evidence, this being a
rehearing.
The Merchant Shipping Act, Act
183 has these relevant
provisions:
81 (1) The master of every ship
except a ship of less than one
hundred tons gross tonnage
engaged exclusively on the
coasts of Ghana, shall enter
into an agreement in accordance
with this Act with every seaman
whom he carries to sea as just
part of his crew from any port
in Ghana.
81 (2) Any master of a ship who
carries any seaman to sea
without entering into an
agreement with him in accordance
with this Act commits an offence
and shall be liable to a fine
not exceeding five pounds.
82 (1) An agreement with a crew
shall be in a form approved by
the Minister and shall be dated
at the time of the first
signature thereof and shall be
signed by the master before a
seaman signs the same.
82 (2) The agreement shall
contain as terms thereof the
following particulars, that is
to say,
(a)
either,
(i)
the nature and, as far as
practicable, the duration of the
intended voyage of engagement;
or
(ii)
the maximum period of the voyage
or engagement and the places or
parts of the world, if any, to
which the voyage or engagement
is not to extend;
(b)
the number and
description of the crew;
(c)
the time each seaman
is to be on board or to begin
work;
(d)
the capacity in which
each seaman is to serve;
(e)
the amount of wages
to be paid to each seaman;
(f)
a scale of provisions
which are to be furnished to
each seaman;
(g)
any regulations as
conduct on board and as to
fines, or other lawful
punishment which have been
approved by the Minister as
regulations proper to be
adopted, and which the parties
agree to adopt.
83. The following provisions
shall apply to agreements
executed in Ghana with a crew in
the case of Ghanaian or
Commonwealth foreign going ships
and in the case of home trade
ships of two hundred tons gross
tonnage or more, that is to say,
(a) the shipping master shall
cause the agreement to be read
over and explained to each
seaman or otherwise ascertain
that each seaman understands the
same before he signs it and
shall attest each signature;
(b) when the crew is first
engaged the agreement shall be
signed in duplicate; one part
shall be retained by the
shipping master and the other
shall be delivered to the master
and shall contain places for the
description and signatures of
substitutes or persons engaged
subsequently to the first
engagement of the crew;
(d) an agreement may be made for
a voyage or if the voyages of
the ship average less than six
months, may be made to extend
over two or more voyages.
84 (1) A master shall, at the
commencement of every voyage or
engagement, cause a legible copy
of the agreement with the crew,
omitting the signatures, to be
posted up in some conspicuous
part of the ship which is
accessible to the crew.
90. In any legal or other
proceedings a seaman may bring
forward evidence to prove the
contents of any agreement with
the crew or otherwise to support
his case, without producing or
giving notice to produce the
agreement or any copy thereof.
And the Labour Decree has these
relevant provisions in section
11:
(1)
Where a contract
between an employer and a
worker-
(a)
is made for the
employment of the worker for a
period of not less than six
months or for a number of
working days equivalent to six
months or upwards, or
(b)
stipulates conditions
of employment which differ
materially from those customary
in the district of employment
for similar work, the contract
shall be made in writing.
(2)
Any contract made in
contravention of sub-paragraph
(1) of this paragraph, shall not
be enforceable except during the
maximum period permissible for
contracts not made in writing,
but each of the parties shall be
entitled to have it drawn up in
writing at any time prior to the
expiry of the period for which
it was made.
In
a case where the plaintiffs
claim to be entitled to some
benefits as ex-employees of a
liquidated company, they should
spell out clearly their terms of
employment as contained in their
contract of employment and
proceed to prove their
entitlements under those terms
of the contract, or under an
existing statute. Thus the
starting point of any discussion
is whether or not the plaintiffs
succeeded in proving the terms
of their employment. They
claimed to be permanent
employees of the BSL, thus one
would expect the terms of their
employment to be embodied in a
written contract. It is clear
there was no such contract. So
the plaintiffs resorted to
various pieces of evidence from
which they expected to conclude
there was a contract of
employment. As earlier pointed
out, the trial court made no
findings of fact; it was the
Court of Appeal which did. We
therefore have to refer to the
Court of Appeal’s findings and
decision on this critical
question. The Court of Appeal
evaluated all the evidence
adduced, particularly the
exhibits and concluded that they
did not establish any
contractual relationship between
the parties.
The plaintiffs assume the burden
of persuasion and of producing
evidence in this case, as was
rightly held by the Court of
Appeal. From the record the
plaintiffs were at various times
engaged by the BSL on voyages
with their ships. At the end of
each voyage the plaintiffs were
paid off and discharged. There
was evidence that when not
engaged in the service of the
BSL, the plaintiffs worked with
other shipping lines, as found
by the court below. The court
below concluded that the
aggregation of the exhibits
tendered did not constitute a
contract whose terms could be
identified with any degree of
certainty. As permanent
employees that the plaintiffs
claimed they were, they were
bound by law to produce a
written agreement that spells
out their terms of employment.
This was the requirement in
section 11 of the Labour Decree,
supra, since repealed by Act
651. That provision was that any
contract of employment for more
than six months was to be in
writing. Indeed that was the
position of the common law,
section 4 of the Statute of
Frauds, 1677, 29 Chas, 2, c.3
which was applicable to this
country as a statute of general
application. Section 4 of the
Statute of Frauds 1677 was made
inapplicable by the Contracts
Act, 1960 (Act 25), except in so
far as it relates to a contract
or sale of land, meaning that
contracts of employment were
still required to be made in
writing by virtue of section 4
of the Statute of Frauds. The
courts in this country have
decided cases coming under
various subjects under section 4
of the Statute of Frauds, but
none that was found dealt with
employment contract. But where
applicable, the courts did not
hesitate to rule that the
contract was not enforceable for
lack of writing. See these
cases: BUOR v. KOJO (1962) 2 GLR
30; B.B.C. TRADING CO., LTD v.
BASSIL (1963) 1 GLR 209; AKWEI
v. AGYAPONG (1962) 1 GLR 277,
ADDO v. GHANA CO-OPERATIVE
MARKETING ASSOCIATION, LTD.
(1962) 1 GLR 418.
Section 4 of the Statute of
Frauds as pointed out earlier
was kept alive by the Contracts
Act, Act 25 in so far as it
related to contracts and sale of
land. And in relation to
contract of employment it was
re-enacted by paragraph 11 of
the Labour Decree, NLCD 157. We
found no case in which paragraph
11 of NLCD 157 was applied. It
is thus legitimate to consider
cases decided in England under
section 4 of the Statute of
Frauds on contract of
employment, albeit for their
persuasiveness.
In
the case of BRACEGIRDLE v. HEALD
(1818), 1 B. & Ald 722; 106
E.R. 266, a contract for a
year’s service which was not in
writing was held to be caught by
section 4 of the Statute of
Frauds. It was held therefore
that no action could be
maintained on the agreement
which was only verbal. In
SNELLING v. HUNTINGFIELD (LORD)
(1834) 1 Cr. M. & R. 20; 149
E.R. 976; parties entered into a
year’s contract and the
plaintiff actually rendered the
service. Nonetheless the court
held that as the contract was
for a year it was caught by the
Statute. Another relevant case
is BRETT v. PHILIPS (1858), 1 F.
& F. 398. There a contract was
made for a year’s service, to
commence from a future day and
then so long as the parties
should please, until three
months’ notice should be given
on either side. The salary was
yearly, but there was evidence
that it had been paid at less,
though uncertain, intervals. It
was held that the contract was
within the Statute and thus
invalid for not being in
writing. There is also the case
of JAMES v THOMAS H. KENT & CO,
LTD., (1950) 2 All E.R. 1099;
(1951) 1 K.B. 551. In that case
a company was incorporated on 4
June 1946, and in the minutes of
a meeting of the company held on
17 June 1946, it was stated:
“First directors. The
appointments of Messrs Kent &
James as first directors of the
company were approved subject to
a three year contract with the
company at salaries of £1020 and
£420 per annum
respectively.” At a directors’
meeting the same day it was
resolved to request the
company’s solicitor to prepare
service agreements for a minimum
period of three years for the
first named directors, Kent and
James. The agreements were never
in fact prepared. Two years
later on 22 December 1948 James
was summarily dismissed, and he
claimed the amount of his salary
for the remainder of his three
years term of office. The
company pleaded the Statute of
Frauds for lack of any writing
to support the agreement. It was
held that:
(1)
If there was an oral contract of
employment for three years the
minute of 17 June 1946 did not
constitute a sufficient
memorandum of it for the
purposes of section 4 of the
Statute of Frauds, because there
was no indication in the minute
of the general nature of the
duties which James had to
perform and therefore the
contract was unenforceable.
(2)
On the construction of the
minutes, the parties had agreed
subject to a formal contract,
and as the formal contract was
not drawn up, there was no
contract for three years, there
was only a contract of
employment for an unspecified
period.
Thus any contract of employment
for more than six months which
was not in writing was
unenforceable. The 2nd
plaintiff said in
cross-examination that the
seamen were not given letters of
appointment, only the office
staff had such letters. In the
absence of any such letter of
appointment it was difficult for
the plaintiffs to prove that
they were permanent employees of
the BSL, which in the context of
section 11 of NLCD 157 meant
employment of more than six
months.
It
appears the plaintiffs construed
their role as seamen on BSL
ships to mean permanent
employment with the BSL. That is
clearly fallacious. The 1st
plaintiff admitted under
cross-examination that each
engagement terminated with a
discharge upon a return from
voyage to sea. The plaintiffs
could have made a case if they
had complied with existing law
and obtained a written contract
of employment, which paragraph
11(2) of NLCD 157 permitted them
to secure at any time during the
period that the contract lasted.
Thus those who claimed to have
been employed for twelve years
had that length of time to
secure a written contract. The
fact that they could not get one
was evidence that they were not
entitled to that. Why would the
BSL issue written letters of
appointment to some staff and
not to others? The only
reasonable explanation was that
the BSL gave letters of
appointment to their employees
on their pay roll, but not
others like the plaintiffs who
were employed on contract from
time to time. It is hard to
explain why the plaintiffs never
got letters of appointment for
the over ten years that they
worked for the BSL if they were
truly employees. It is harder
still to accept that they would
work for that length of time
without appointment letters when
they belonged to the National
Union of Seamen, an affiliate of
the Trades Union Congress which
is there to support and fight
for the rights of its members.
It is unbelievable to think that
the Trades Union Congress of
Ghana would look on unconcerned
whilst their members were denied
a basic right like an
appointment letter for persons
who had worked for over ten
years.
On
their own showing, the
plaintiffs were only engaged as
seamen on specific voyages and
after that they were discharged.
The pieces of documents they had
were the discharge book, ID
card, promotion letters and
social security cards. All these
put together do not constitute a
valid employment contract which
must necessarily contain the
parties, the duration of the
contract, wages or salaries,
terms of cessation and other
related matters. The evidence
points conclusively that they
were not permanent employees.
Indeed they became employees
only for the duration that they
were engaged on a particular
voyage. And for the purpose of a
voyage the employer would decide
to give positions to the seamen
to ensure appropriate
hierarchical order. The law
requires the owner to state the
capacity of the crew men and
clearly spell out their
respective jobs. Thus for this
purpose it was normal to upgrade
a crew man who had performed
well on previous voyage to take
a greater responsibility in
future voyages. Notwithstanding
any such promotion, it did not
entitle the plaintiffs to
regular employee status because
they still had to wait to be
contracted for a voyage before
they would enter into the
service of the BSL again. An
agreement would be signed under
Act 183 limited to specific
voyage or series of voyages
only. None of these agreements
or series of them under Act 183
could ripen into a permanent
employment. The Act is very
clear in its language that is
why an agreement was executable
in respect of every voyage
regardless of who the ship owner
might be. Hence what the 1st
plaintiff spoke of as a
promotion letter exhibit C was
in fact a recommendation made by
the BSL to the The Executive
Secretary of G.S.E.W.B., Accra
to approve of it following his
service on board BSL vessel Tano
River. The BSL was an autonomous
body which could hire and
promote staff without recourse
to any other external body. Why
would the BSL make a
recommendation to another body
to approve the promotion of its
staff if indeed they were in
their full-time employment. The
reasonable inference was that as
seafarers could work for any
other ship owner as they were
regulated by an external body,
presently the Ghana Maritime
Authority. The Registrar of
Seafarers has a responsibility
to register all seafarers. So as
counsel for the plaintiffs
rightly submitted the nature of
contracts for seafarers was
different from other contracts.
The promotion, if approved,
would then be applied on the
next voyage if he was lucky to
be called up to duty again.
The plaintiffs also relied on ID
card issued to each of them by
the BSL, a copy of which was
tendered in evidence by the 1st
plaintiff. He is described as a
deep sea farer. Certainly as a
person employed to work on their
vessel it was normal for the BSL
to issue him with an ID card,
for how else would the port
security identify him and allow
him to enter the port let alone
the vessel? A seafarer has his
contract ingrained in Act 183
which is a contract from to time
as the need arose. The ID card
was not evidence of permanent
employment.
Let us explain the discharge
card. That was the card which
the law enjoins the master to
issue to a every seafarer upon
his return from his first
voyage, and after that to make
the appropriate entries therein
following every voyage. It’s a
kind of record that shows how
many voyages a seaman has
undertaken and on what vessels,
which route and for what
duration. It does not state the
status of the seaman with any
particular company or ship
owner. Every voyage attracts
just one entry regardless of
which vessel you sailed on or
which ship owner you sailed for.
The discharge book is the
closest indication yet of what
the terms of agreement were as
detailed in section 82(2) of Act
183. The most significant
omission is the amount of wages
that the seafarer earned or
would earn on each voyage. Thus
in all other respects the terms
of the agreement could be found
in a discharge book copies of
which were tendered as exhibits
A and H. Counsel for the
plaintiffs bemoaned the fact
that the employees were not
given copies of the agreement
and were required in any
proceedings to recount the terms
of the agreement from memory.
Much as we share in counsel’s
grief, there is nothing we can
do to salvage their case. They
placed themselves in this state
of helplessness, for at least
they could have used their trade
union to fight their cause if
indeed they were employees who
had been denied letters of
appointment, knowing full well
that the contracts they entered
into with the ship masters on
each voyage did not constitute
permanent employment contract.
Rather unfortunate to recall,
similar provisions have been
re-enacted in Act 645 such that
even now seafarers are not
entitled to be given copies of
agreement they sign with
shipmasters. The lawmakers may
take another look at these
provisions which clearly work
injustice where one contracting
party is denied the right to a
copy of an agreement he has
executed and is required by law
to recount its terms from
memory. Such a party is placed
at a disadvantage in the event
of a dispute.
The last document they relied on
to prove their status as
employees was the social
security card. The 2nd
plaintiff tendered his social
security Certificate of
Membership, exhibit J. In
respect of the provision of
social security, this is a
requirement of the law that once
an employer engages an employee
for a period exceeding one
month, the latter must be
registered with the SSNIT else
the employer would be penalized.
Thus even if the plaintiffs were
engaged for three months to go
to sea, the BSL was obliged by
law to register them with the
Trust. The evidence does not
show that the BSL paid their
social security contributions
for the entire period that they
claimed to have worked for them.
The probative value of the
social security card was
negative in the absence of
evidence that the BSL was paying
the monthly contributions of
each of the plaintiffs for all
these years. The Court of Appeal
was therefore justified when it
concluded that these exhibits
did not constitute a contract of
employment. For when read as a
whole you do not get the terms
of employment as permanent
employees, for vital elements of
such a contract are missing
including duration, wages or
salaries, termination et cetera.
In the absence of written
contract, the best evidence
available to the plaintiffs, if
indeed there was such evidence,
was for them to have produced
records of monthly salaries that
they were receiving from the
BSL, either pay slips or bank
deposits. Or they were working
without being paid!
To
recap, the evidence confirmed
that the BSL only engaged their
services as and when needed.
After each engagement they were
discharged and paid off. That
explains why for more than ten
years before the BSL was
liquidated the 1st
and 2nd plaintiffs,
for instance, did no work for
the BSL and got no remuneration
or benefits as a result. The 1st
plaintiff’s last engagement was
on 04 November 1985 and was
discharged on 30 September 1986,
whilst the 2nd
plaintiff was last engaged on 21
July 1982 and was discharged on
05 September 1984, eleven and
thirteen years respectively
prior to the liquidation of the
BSL. If they were employees one
would ask: why were they not
paid any emoluments whilst they
remained disengaged from their
employers? That explains why
they were entitled to work with
other shipping lines, without
attracting any form of reprimand
from BSL. The 1st
plaintiff admitted he worked
with another shipping line even
whilst he claimed he was in the
employment of the BSL. The truth
of the matter was that these
seamen were available for any
shipping line that needed their
services to fall upon. That
explains why some of the
plaintiffs were able to work for
other shipping lines at a time
they claimed to be in the full
employment of the BSL. The only
logical conclusion to be drawn
from all these is that they were
not under any bond or obligation
to work for only the BSL, they
were at liberty to sail with
other vessels. In these
circumstances the court below
was justified in rejecting the
plaintiffs’ claim to be
employees.
In
the result we find no merit in
the appeal which we accordingly
dismiss.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME
COURT
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE - BONNIE
JUSTICE OF THE SUPREM
COURT
(SGD)
G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL:
K. N. ADUAMAKO ACHEAPONG
ESQ. FOR THE PLAINTIFFS
/RESPONDENTS/APPELLANTS.
E. S. GOKA ESQ. FOR THE 2ND
DEFENDANT/APPELLANT/ RESPONDENT.
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