|
JUDGMENT
ANSAH, JA:
This is appeal against
the judgment of the High Court, Sekondi, given on 13th
January 1992. The plaintiffs has sued the defendant for
a. "Declaration that
the plaintiffs’ dismissal from the defendant's
employment is unlawful and contrary to natural justice,
equity and good conscience.
b. Payment of all
entitlements due the plaintiffs.
c. Damages for
wrongful dismissal."
The trial judge, after
taking evidence from both sides, entered judgment for
the plaintiffs upon their claims and proceeded to make
certain awards for them. The defendant was aggrieved by
these and brought an appeal against them. I must observe
that the appeal was struck out for non-compliance with
the requirements of Rule 20 (1) of C.I. 19 in pursuance
of Rule 20(2) of the Court of Appeal Rules, 1997 C.I.
19. I am unaware of any effort to relist the defendant’s
appeal or any order relisting it. The position as I
understand it then is that there is no appeal against
the judgment.
However, the plaintiffs
also brought a cross-appeal against that part of the
judgment that dealt with the dismissal on the grounds
that the management acted as judges in their own cause
and also the award of damages. The grounds were that:
a. “The awards of
damages made were too low, having regard to the numerous
salary increases and the difficulty in securing new
employment.
b. The computation of
the awards made by the trial judge was wrong.
c. Additional grounds
shall be filed when the record of proceedings is
received”.
I am unaware of any
additional issues having been filed as yet. Therefore,
this cross-appeal will be limited to only these two
grounds. Before I resolve the issues raised I would like
to state the facts of this case. It was that the
Defendant Company formerly employed the plaintiffs in
‘various capacities’. In February 1990, they were
dismissed from their employment. It was the case of the
plaintiffs that at the time of their dismissal they were
receiving a basic salary of ¢25,488.00, ¢15,820.00 and
¢20,779.00 respectively, every month. Each of them also
received a basic allowance, free meal and medical
treatment. After their dismissals the other workers
were made to enjoy salary increments. They were
excluded from enjoying the same facilities. In a letter
sent later on to the affected plaintiffs it was
explained to them that the basis of their dismissals was
that they had collected some I.O.Us from the company.
The plaintiffs said that they explained their conduct
and even refunded all sums of monies they collected, but
they were nevertheless dismissed summarily. Other
workers who had similarly taken I.O.Us were not
dismissed even though they had not refunded what they
took from the company. The plaintiffs contended that
their dismissals were wrongful and amounted to
victimization. For a remedy they took this action
against the defendant for the reliefs stated above.
The defendant did not
deny dismissing the plaintiffs from their employment.
They explained that this was because the plaintiffs
admitted collecting I.O.Us without any authority, which
act they said amounted to dishonesty. The reason was
that a new management had been instituted in the
Defendant Company between June 1989 and January 1990
charged with the sole responsibility of disbursing
funds. In view of this arrangement a cashier had no
authority to expend any money without approval of either
the Resident Director or Management. For not passing
through the procedure, the dismissals of the plaintiffs
were said to be in accordance with the collective
agreement and they were not therefore entitled to their
claims. As stated already, the trial judge found favour
with the case of the plaintiffs more than with that of
the defendant and entered the judgment under appeal in
favour of the plaintiffs.
This appeal raises some
interesting point of procedure that must be settled at
this stage. It is that as I have said already, the
Defendant Company (which I henceforth refer to simply as
the respondent) had their appeal struck out for reasons
already given. This means what is left is the
plaintiffs' cross-appeal. ( I now refer to them simply
as the cross-appellants). The issue is, in resolving
the cross-appeal should the court proceed with only the
matters therein raised or should it determine the
rightness or otherwise of the judgment as a whole. The
danger in looking at how right the judgment was is that
it may give the appellant, whose appeal has been struck
out by operation of law, another chance to argue the
appeal through the backdoor. On the other hand too is
the point that before a court of justice and law
determines the cross-appeal on its merits it must
satisfy itself that the judgment itself is in the first
place right both on the law and the facts upon which it
is based.
It must be recognized
that the court has the power under Order 32 of C.I. 19
to give judgment and make an order or orders. Under
rule (2) of this order, “ these powers may be exercised
notwithstanding that the appellant may have asked that
part only of a decision be reversed or varied, and may
also be exercised in favour of all or any of the
respondents or parties, although the respondents or
parties may not have appealed from or complained of the
decision”. The point being made is that this court has
the power to give that kind of judgment that it thinks
fit provided the evidence on record supports it. This
is so even where there is no appeal against the
decision. More directly in connection with this case may
it be stated that where the appeal itself has been
struck out for non-compliance with the rules, that would
ordinarily have ended the proceedings. The party who
lost the suit in the court below would be required to
obtain an order re-instating the appeal. If he did not
do that he would lose the chance of ventilating any
grievance or grievances against the judgment. The
position is different where the party who won the action
in the court below decides to cross-appeal against the
judgment. An example is this case where the plaintiffs
decided to complain against the quantum of damages
awarded in their favour only. It is perfectly within
their rights to ask for an upward adjustment of the
awards for reasons made clear to the court. That is the
essence of this cross-appeal. When the cross-appeal
comes on for hearing, it is open to the respondent to
satisfy this court why it should not be allowed. In
doing this he is entitled to posit before the court that
the judgment was after all not sound in law or on the
facts or on any other grounds. Therefore it is by
virtue of the cross-appeal that the defendant in this
case got the chance to challenge the soundness of the
judgment after their appeal had been struck out for
non-compliance with the rules and was no longer
pending. A note of caution must be sounded here,
namely, that the appellate court should be careful in
dealing with a case in similar circumstances. The
appellate court should be mindful of the grounds of the
cross-appeal. So that where they do not impinge on the
validity of the judgment, the respondent to the
cross-appeal does not import that into the appeal
through the ‘backdoor’.
I now turn to the
grounds of the cross-appeal I think I have set them out
already. In support of that ground it was submitted
that “having regard to the period of their dismissal,
which was February 1990, and considering the fact that
as at 28th November 1991, when the plaintiffs gave
evidence, the 1st and 2nd plaintiffs were unemployed
…(they) described themselves as unemployed, and it was
wrong for the trial judge to state that “It would have
taken each plaintiff about 5 months to look for
alternative job”. In fact 21 months after their
dismissals, some of the plaintiff, had not found any
other work. The general trend on the labor front in the
1990s was that it was very difficult to get employment.
Counsel invited this court to take judicial notice of
this fact. In the case of the third plaintiff, though
he secured a new employment, it was only as an
administrative officer whereas he was an accountant by
profession. The plaintiffs therefore complained that it
was wrong for the trial judge to say that five months
was adequate for each of them to find another work. I
wish to express my disagreement with that submission by
counsel for the cross-appellants. When the trial judge
said that the appellants could secure employment within
5 months what he meant was that was a reasonable time
within which they could do so. He could not have meant
that within the period they would at all cost get new
employment so that if they did not, then he was wrong.
What must be borne in mind is that in cases of this
nature, as in all torts, the principle is that the
plaintiff is under a duty to mitigate his loss. In fact
when a similar situation arose in Ghana National Trading
Corporation v. Baiden [1991] 1GLR 567 SC, Francois JSC
said at page 576 that the onus lay on the plaintiff
therein to show the efforts he made to mitigate his
losses. Those efforts could include the production of
copies of letters he wrote to seek some gainful
employment but were turned down, and generally his
personal efforts to lift himself from an economic
morass. I think that is the principle to apply in this
case. It was beyond dispute that the plaintiffs were
dismissed in February 1989. They took their action on
2nd May 1990 and judgment was delivered on 13th February
1992, a period of about 21 months. The plaintiffs, it
was submitted, gave evidence on 28th November 1991. As
at that time they were still unemployed and that gave
rise to the criticism against the five months period
allowed by the court. Counsel referred to Ghana Cocoa
Marketing Board v. Agbettoh [1984-86] 1 GLR 122 and
submitted that the plaintiffs should be awarded 24
months salary. Agbettoh’s case must be studied very
carefully. It has often been cited as if it ever sought
to or did lay an inflexible rule that must be applied in
all cases and to the effect that in all cases of
wrongful dismissals the period of which damages should
be awarded must be 24 months. That case in my view
should not be so construed for it did not lay down any
such rule. The plaintiff/respondents in that case were
dismissed from their employment on 26th November 1979.
The High Court had declared their dismissals unlawful
and also granted the defendants an order of perpetual
injunction to restrain the defendants from ejecting them
from their bungalows. The Board sought a reversal of
this judgment, and the Court of Appeal said at page 131
that it saw some practical difficulties in it as well as
paying them their salaries. These were that to affirm
the order would amount to securing them bungalows they
had when they were in actual service of the board. To
also order that they were paid for the period during
which they did not work for the Board would be to set
their face against realities. The court went on to say
that the reality of the situation was that although de
jure they were technically in the service of the Board,
de facto, they had ceased to be so since November 1979.
Considering all the circumstances of the case the court
ordered the appellant board to compensate each
respondent as compensation, two year’s salary from
November 1979. In the result the call for the workers to
be paid their full salaries would be as if they were in
actual rather than constructive service of the board.
Those order where disaffirmed and set aside. When it was
considered that the Court of Appeal gave its judgment on
8th November 1984, then it meant that the period run
from the date of the dismissals, that was 26th November
1979 and ended on 26 November 1981. It certainly did not
cover the whole period between the date of the dismissal
to the date of the judgment, 8th November 1984, a period
of five years. The reality of the case did not allow
that to be done. So that what Agbettoh’s could safely
be said to have decided was that in awarding the period
for which the award should run the court must be guided
by the reality of the case, or “all the circumstances”,
of each case in particular. Once again I make bold to
say that Agbettoh did not lay it down as an inflexible
rule that in all cases of wrongful dismissals a
successful plaintiff must at all cost be awarded two
years salary. Rather it is clear from that case that in
awarding damages for wrongful dismissals the court was
enjoined to look at the realities of each particular
case. More importantly, the court should be careful not
to make any award that would tend to show that the
worker was being paid for work he did not do. I
therefore refuse to follow that case and make that
award. Learned counsel for the respondent submitted
that even if the dismissals were found to be
unconscionable, the workers were entitled to one month’s
salary, as that would be in lieu of notice. A similar
point was made in Hemans v. G.N.T.C. [1978] GLR 4, where
it was held as per holding (3) at page 5 that where the
compensation for lawful termination of contract of
employment was one month’s pay, it would appear
preposterous to award the same one month’s salary where
the termination was unlawful. The C.A proceeded to
award what was felt to be just in the case. In this
case too I do not think it would be any less
preposterous if I should accede to the submissions of
counsel for the respondents. I rather reject that
submission. I also wish to state that that the
cross-appellants were under an obligation to minimize
their losses by seeking and obtaining alternative jobs
was emphasized upon at p131. It was therefore wrong for
counsel for the appellants to submit “the
defendant/appellant did not also lead evidence that work
was readily available but the cross-appellant have
refused to work”. By so saying, counsel was putting the
onus of proof on the defendants and that was wrong.
Another submission by
the cross/appellants that must be considered with all
seriousness was the one that went as follows:
“I will submit that the
current salary assigned to positions that they were
occupying should be the proper method of compensating
them.”
It is instructive to
learn that a not too dissimilar claim was put up in
Arkorful v. State Fishing Corporation [1991] 2 GLR 348.
In the present case no such claim like ‘ the estimated
current value (at the date of judgment) of salaries from
…’ was made. Osei-Hwere JA (as he then was) said of
this claim that he did not think he could admit such a
claim, for the fear that if entertained would open the
flood gates to embrace such an economic loss as a new
head in assessing damages in breach of contract. That
per se would not prevent this court from making that
award if there was evidence to support it. I have read
the reply to the submissions in response by the
respondents and I must confess it did not appear to me
that the decision in Arkorful’s case on a claim based on
the “estimated current value” at the date of judgment
was well appreciated. I do not think counsel for the
cross appellants succeeded in satisfying me that where a
court was considering the award of damages the yardstick
should be the estimated current value of the lost
salaries. Like Osei-Hwere J, I also think that
invitation is still dangerous and I reject it. If
anything at all, it is the lost salary as it was at the
date of the wrongful dismissal that must be used in the
computation. In other words, a judge who proceeds to
award damages for wrongful dismissal is to make only a
fair and reasonable estimate of the period within which
the plaintiff could secure an alternative employment.
At that stage he would not, and in fact he was not
expected to know for sure how long it would take the
dismissal plaintiff to do that. The judge has no
clairvoyance and has to rely on his judicial experience,
his knowledge on the general trend on the labor front
with special reference on the availability of jobs or
otherwise, as a guide. After all said and done the
award of damages is a matter entirely within the
discretion of the judge and the appellate court is sloth
to interfere with its exercise except as in well laid
circumstances. I proceed at this stage to state only a
few of them as are germane to this appeal.
In Flint v. Lovell
[1935] 1 K.B.354, Greer L.J. said at pages 359-360 that
“I should like to add a
few words about the jurisdiction of this court in
appeals where the only contention or one of the
contentions is that the damages awarded by a judge
hearing a case without a jury are excessive. It is not
possible to say that the tests, which have been laid
down in cases, like Philips v. London & South Western
Railway Company (1879) 5 CPD. 280 apply to an appeal
from a judge trying a case without a jury, because an
appeal is a rehearing by the court with regard to all
the questions involved in the action including what
damages ought to be awarded, but though the established
rules with regard to the decisions of juries do not
apply to appeals from the decision of judges trying case
without the assistance of a jury, I do not think it
right to say that this court will be disinclined to
reverse the finding of a trial judge as to the amount
of damages merely because they think that if they had
tried the case in the first instance they would have
given a lesser sum. In order to justify reversing the
trial judge on the question on the amount of damages it
will generally be necessary that this court should be
convinced either that the judge acted upon some wrong
principle of law or that the amount awarded was so
extremely high or so very small as to make it, in the
judgment of this court, an entirely erroneous estimate
of the damage to which the plaintiff is entitled”.
Similarly, in Davies v.
Powell Dufryn Associated Collieries Ltd. [1942] A.C.
601; [1942] 1 All E.R. 657, HL. Lord Wright said at
pages 616-7 that:
“Where however the
award is that of the judge alone, the appeal is by way
of rehearing on damages as on all other issues, but as
there is so much room for individual choice so that the
assessment of damages is more like an exercise of
discretion than an ordinary act of decision, the
appellate court is particularly slow to reverse the
trial judge on a question of the amount of damages. It
is difficult to lay down any precise rule which will
over all cases, but a good general guide is given by
Greer L.J. in Flint v Lovell [1935] 1K.B. 354, at 360.
In effect, the court, before it interferes with an award
of damages, should be satisfied that the judge has acted
on wrong principle of law, or has misapprehended the
facts or has for these or other reasons made a wholly
erroneous estimate of the damage suffered. It is not
enough that there is a balance of opinion or
preference. The scale must go down heavily against the
figure attached if the appellate court is to interfere
whether on the ground of excess or insufficiency”.
Lord Upjohn referred to
this dictum with approval in Yorkshire Electricity Board
v. Naylor [1968] A.C. 529 at page 539, His Lordship made
an observation that was worthy of note. He said that
the award of damages was a matter that was better and
safely left to the experience and common sense of judges
who day by day had to judge of these matters. I think
when they had used their experience in these matters to
make an award they had exercised a judicial discretion.
An appellate court would scarcely interfere with the
exercise of this discretion except where they fell foul
of the principles stated in the case cited above. See
also Bressaah v. Asante [1965] GLR 117, S.C.
Bearing the above
principles in mind it could safely be said that the
trial judge did not make an erroneous let alone a wholly
erroneous estimate of the period within which the
cross-appellants could have secured an alternative job.
All the criticism levelled against his estimate was not
well founded. That was very much so when it was
considered that there was evidence that one of the
plaintiffs had obtained an employment within three
months after their dismissals. If one could do it why
could the others not do the same thing within the same
period? In the result this court has no reason to
interfere with the period awarded by the trial judge.
The major question
raised by this appeal is whether or not the
cross-appellants were paid all their benefits upon their
dismissals? The law is settled that where a worker was
wrongfully dismissed he is compensated by damages. And
here I find the dismissals to be wrongful. The
cross-appellants led evidence that showed conclusively
that it was the practice at the company for workers to
take I.O.Us from the cashier and to repay later. It was
when management discovered that the privilege had been
abused that new measures were put in place to check it.
The respondents pleaded that:
“12. Defendants further
say that the unauthorized I.O.Us were taken by the
plaintiffs between June 1989 and January 1990 when a
new Management with sole authority to approve all
disbursement of funds was running the affairs of the
Factory”.
This averment was
denied in paragraph 2 of the plaintiff’s reply. With
that the burden fell on the defendants to prove that the
cross-appellants took the I.O.Us after the date pleaded
by them i.e. June 1989 and January 1990. This in my
view, based on the perusal of the evidence as a whole,
the defendants failed to do. Certainly, the fact that
the taking of I.O.Us was very rampant among the workers
did not justify that conduct. On the other hand, the
fact that management frowned upon that conduct after a
certain point in time did not mean whoever took it at
any time committed an act of dishonesty for which he
could be dismissed summarily. What was rather important
was that the defendants proved that the cross-appellants
by passed the procedure laid down after June 1989 and
January 1990, in taking those loans. That kind of
evidence was not forthcoming from the defendants and
that made their dismissals of the cross-appellants
wrongful. The remedy available to a worker who was
wrongfully dismissed lay in damages. How much that
should be was stated in Ghana Cocoa Marketing Board v.
Agbettoh (supra) at page 129 to be pecuniary damages. A
reading of Nartey-Tokoli v. Volta Aluminium Company
Limited (No2) [1989-90] GLR 341, would show that these
would include salaries and entitlements lost over the
period. The trial judge, in all fairness to him awarded
the cross-appellants five months salary for each
affected worker plus a housing allowance within the same
period. If anything at all it was against the
computation that a complaint was made to the effect that
it was wrongly made. Counsel for the respondent company
has conceded that point. We ourselves have also found
the criticism to be well founded. We agree that the
first plaintiff earned ¢25,488 but not ¢25,000, the 2nd
earned ¢15,820 but not ¢15,000 as stated by the judge.
Multiplying this figure by the five months period we
get ¢329,440.00 and ¢79,100.00 for the 1st and 2nd
plaintiffs respectively. We set aside the sums awarded
for these plaintiffs as salaries lost and substitute
them with these. With regard to the figures for the
third plaintiff, we find that he earned ¢20,779.00 a
month and for the five-month period he was entitled to
the ¢103,895.00 awarded by the trial judge as lost
salaries. We find no fault with the calculation and we
do affirm it. Each plaintiff was also entitled to 25%
of his monthly salary housing allowance. For the five
months the first plaintiff would be entitled to
¢31,860.00, the second plaintiff, ¢19,770.00. We make
those awards for the 2 plaintiffs. The third was
earning ¢20,799.00 a month so that his lost salary for
the three month period was ¢103,995. It is in evidence
that it took three months for the third plaintiff to
secure another job, so the judge should computed his
lost salary by using that period of time. That would
amount to ¢65,397.00. His lost housing allowance over
the period would be ¢16,449.25. This we award in favour
of the third plaintiff. It could be seen that in some
respects there were some arithmetical errors in the
computations by the trial judge and this was a ground
upon which the cross-appeal would be and has been
allowed.
There was this appeal
to this court to order interest to run on these sums for
the period running from 1990 to an unspecified time. The
reply was that the plaintiffs did not put in any claim
for interest and none could be awarded in their favour.
The issue is should interest be awarded only when it has
been claimed specifically on the writ? I reckon that
under the English rules interest must be endorsed on the
writ before it can be awarded, see Order 18r8 of the
English Rules of the Supreme Court, 1965 and the notes
thereon in the Supreme Court Practice, 1993, paragraph
6/2/10 at page 36. Under this rule, all claims for
interest must be pleaded. In Ghana, the practice seems
to be as was stated in “Practice and Procedure in the
Trial Court & Tribunals of Ghana”, by S.A.Brobbey. The
subject of ‘Interest in claims for money’ was treated at
Chapter 13 at page 355 to 370. It was stated at page 355
that interest is founded either on an agreement between
the contracting parties or on statutory provisions. In
this case the claim for interest has not been made
because of any agreement by the parties. In that
situation the rule is certain that interest must be
claimed and proved before it can be awarded. The basis
of the award of interest in the present case was that
the plaintiffs have had some sums of money awarded in
their favour. These were monies found by the court to
belong to the plaintiffs. The defendants deprived the
plaintiffs of the use and enjoyment of those monies for
the period stated by the trial judge, i.e. five months.
The law on this point is as was stated by Lord Herschell
L.C. in London, Chatham & Dover Railway Co. v. South
Eastern Railway Co [1893] A.C. 429 at 437, H.L. It is
that interest is a sort of compensation or damages for
the wrongful withholding of another person’s money; see
also Ghana Commercial Bank v. Binoo-Okai [1982-83] GLR
74; Royal Dutch Airlines (K.L.M) v. Farmex Ltd.
[1989-90] 2 GLR 623 S.C. If interest is awarded for
wrongful retention of another person’s money then it
stood to reason that the duration of the award should be
the same as the wrongful retention. In this case the
period has been put at five months. The rate of interest
is statutorily put at the prevailing commercial lending
rate.
The plaintiffs claimed,
as per their amended statement of claim and writ of
summons “Payment of all entitlements due the plaintiffs
since February 1990”. What these were are to be gleaned
from the collective agreement. That was exhibit D at
the trial. Article 52 was on ‘End of Service
Benefits”. They were gratuities paid to an employee on
leaving the service of the employer. The calculation of
such entitlements were as follows:
a. “Employees with
less than 5 years’ service --- 2 months pay for each
year of service.
b. Employees with more
than 5 years but less than 10 years service ---3 months
pay for each year of service.
c. Employees with 10
years and above ---4 months pay for each year of
service.”
I take judicial notice
of the fact that in December 1990 the Government of
Ghana froze all End of Service Benefits by a circular.
Managements of affected organizations were made to enter
into arrangements with workers on how to compute and
effect payment of these benefits. The payment of end of
service benefits were not cancelled by the Government
altogether. But before the freeze in December 1990,
the plaintiffs had been wrongfully dismissed in
February of the same year. The end of service benefit
had rather been earned but not paid. They remained
unpaid even when the plaintiffs were dismissed. I am of
the view that when they were dismissed and they were
leaving the service of the defendants, they should have
computed and paid the end of service benefits to them in
accordance with the agreed terms of service. In
fairness to the trial judge he made orders for the
payment of end of service benefits for the plaintiffs
but then using the wrong figures. I disturb his awards
in the following manner:
‘For the end of service
benefits for the 1st plaintiff, he would have been paid
under Article 52, four months pay for each service.’
The 1st plaintiff
worked for 14½ years. If for each year he took 4,
months’ pay, that would be 14½ x 4 x 25,488.00 that is
¢1,478,304.
I award that sum of
money for the 1st plaintiff by way of E.S.B i.e.
¢1,478,304.00.
For 2nd plaintiff, he
was found to have worked for 5 years. He is entitled for
3 months pay for each year for service. His entitlement
by way of E.S.B is 5 x 3 x 20,779.00 and that would be
¢311,685.00.
For the 3rd plaintiff,
he was found to have worked for 10 years.
He is also entitled for
4 months per for year of service. His pay was
¢15,820.00.
I allow the
cross-appeal and substitute the following awards for the
plaintiffs
1ST
PLAINTIFF 2ND PLAINTIFF 3RD
PLAINTIFF
ESB
Lost
bal ¢1,478,304.00
¢311,985.00 ¢632,800.00
Lost salary
329,440.00 79,100.00 ¢103,895.00
25% Housing Allowance:
31,860.00 19,770.00 16,449.25
TOTAL:
¢1,839,604.00 ¢410,855.00 ¢753,144.25
As is already stated
interest is to run on these sums of money at the
prevailing bank rate from the dates of dismissals to the
date of judgment.
To this extent I allow
the cross-appeal.
J. ANSAH
JUSTICE OF APPEAL
P. K. TWUMASI, JA:
I agree.
K. OMARI-SASU, JA:
I also agree.
COUNSEL:
*vdm* |
