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RULING
SOPHIA ADINYIRA(MRS.) JSC
(PRESIDING):-
This application for a review of
the judgment of the ordinary
bench of 21 May 2014 is brought
by 10 out of the 511 former
employees of Ghana Commercial
Bank (GCB) in the consolidated
cases, commenced on 28 October
2006 and 18 November 2006
respectively. The reliefs sought
by the Plaintiffs from their
former employer were mainly for
a declaration that they were
entitled to participate in and
enjoy the benefits of the
Special Pension Scheme set up by
the Defendant for the benefit of
its employees; and an
order for specific performance
directed at the Defendant to
compute and pay to the
Plaintiffs their pension
benefits under the said scheme
with interest thereon to date of
final payment. The Defendant
resisted the claim on the
grounds that the pension scheme
was abrogated in December 1990
and since the Plaintiffs alleged
rights accrued upon their
respective dates of retirement
their action was statute barred.
The High Court held that the
abrogation of the pension scheme
in December 1990 was null and
void and of no legal effect as
it was done without the
permission of the Commissioner
as required by section 24 of the
Social Security Act, NRCD 127;
[repealed] and consequently the
pension scheme continued to be
in existence. The High Court
entered judgment for the
Plaintiffs. And the Court of
Appeal affirmed this judgment.
On appeal before the ordinary
bench of the Supreme Court, the
main issue was whether the
Defendant had the power to
terminate the private pension
scheme without reference to the
Commissioner. On 21 May 2014,
the ordinary bench of the
Supreme Court reversed the
finding of the High Court by
holding that Section 24 (5) of
the Social Security Act, NRCD
127 was inapplicable to the
situation where an employer
voluntarily decided to wind up
its own private scheme.
Accordingly the Court held that
the winding up of the Scheme by
the Defendant was not in
contravention of NRCD 127. The
Court however held the
abrogation of the pension scheme
by the Defendant was a breach of
a term of contract of
employment.
On the liability of GCB the
ordinary panel held that it is
only the category of staff
members who were on retirement
before the abrogation of the
scheme on 31 December 1990 (and
satisfied the conditions set in
rule 3 of the regulations of the
Special Pension Scheme) that
were entitled or competent to a
claim for specific performance.
Further, by virtue of section 24
of the Limitation Decree such
claim is not statute barred.
From the foregoing, the ordinary
bench non-suited the Plaintiffs
on the grounds that at the time
the pension scheme was abrogated
on 31 December 1990, they were
still in the employment of the
Defendant and were not entitled
to pension and therefore could
not mount a claim for specific
performance against the
Defendant.
The application for review
before us is made under the
first ground specified in rule
54 (a) of the Supreme Court
Rules, 1996 CI 16, namely the
existence of “exceptional
circumstances which have
resulted in a miscarriage of
justice.”
The applicants submit that they
retired from service before the
abrogation of the pension scheme
on 31 December 1990 and had
accrued pension rights therein.
They contend this fact was
overlooked by the ordinary panel
of the Supreme Court and as a
result their case was dismissed
along with the other 511
Plaintiffs who did not meet the
criteria set under the rules of
the pension scheme. The
applicants submit further that
the said omission or slip had
occasioned a serious miscarriage
of justice which if not
corrected will deny them their
pension rights. Attached to
their affidavit in support of
their application was a list
marked Exhibit A; which
contained their names; date
engaged by Defendant; date of
leaving Defendant’s employment,
total period of engagement; and
age at the time of leaving the
Defendant’s employment. This
list was extracted from
paragraph 1 the statements of
claim in the consolidated cases.
The Respondent opposed the
application and submits that
contrary to the Plaintiff’s
assertion that they fell in a
different category the
applicants and the rest of the
Plaintiffs conducted their case
on the basis of a common action
in fact and in law against the
Defendant and no evidence was
led of their peculiar
circumstances. They further
argue that the list from which
the names of the 10 applicants
were extracted was not an
exhibit but a list attached to
the statement of claim and on
which no evidence was led and so
should be disregarded. Counsel
urged on this Court that no
exceptional circumstances have
been established resulting in a
miscarriage of justice to
warrant a review by this Court.
The review jurisdiction of the
Supreme Court is a special
jurisdiction and is not intended
to provide an opportunity for
further appeal. It is a
jurisdiction which is to be
exercised sparingly and where
the applicant succeeds in
persuading the court that there
have been some exceptional
circumstances such as a
fundamental or basic error which
the court inadvertently
committed in the course of
delivering its judgment and
which error has resulted in a
miscarriage of justice.
There is a long line of case law
on how the review jurisdiction
of this Court has been
exercised; such as Mechanical
Lloyd Assembly Plant v Nartey
[1987-1988] 2 GLR 598, SC;
Bisi v. Kwayie [1987-88] 2
GLR 295, SC; Nasali v. Addy
[1987-88] 2 GLR 286, SC;
Ababio v. Mensah (No.2)
[1989-90] 1 GLR 573, SC;
Quartey v. Central Services Co.
Ltd [1997-97] SCGLR 398;
Pianim (No.3) v. Ekwam
[1996-97] SCGLR 431; Koglex (Gh)
Ltd v. Attieh [2001-2002]
SCGLR 947; Attorney-General
(No.2) v. Tsatsu Tsikata (No.2)
[2001-2002] SCGLR 620, Hanna
Assi (No. 2) v GIHOC
Refrigeration& Household
Products Ltd (No.2)
[2007-2008] SCGLR 15 v NTHC
Ltd v Antwi [2009] SCGLR
175; and Martin Alamisi
Amidu v Attorney General and
Others, Suit No. J7/10/2013,
SC, unreported dated 29
July 2014.
The applicants before us do not
seek to reargue their appeal
which was fought purely on legal
issues. They claim they retired
before 31 December 1990 the date
the special pension scheme was
abrogated and by the judgment of
the ordinary bench they were
entitled to their pensions under
the said scheme. They submit
this Court inadvertently
overlooked this fact, and this
amount to exceptional
circumstances resulting in a
miscarriage of justice.
There are several categories of
exceptional circumstances. One
instance is where the court has
overlooked very material and
practically decisive matters
that would constitute
exceptional circumstances. By
the nature of the submissions by
the parties herein, it seems the
record of appeal and not just
the bare judgment delivered will
be required for the
determination of the review
application. See Tamakloe v
The Republic [2011] SCGLR
29, Holding 3:
The Supreme Court has
consistently held that
categories of exceptional
circumstances could not be
comprehensively exhausted. In
that regard, it was incumbent on
the applicant to show that his
substantial rights in the matter
that had come before the
ordinary bench of the Supreme
Court had been prejudiced by
some fundamental or basic error
made by the court. Whatever
factor was relied on by the
applicant must be such that the
exercise of the Supreme Court’s
power of review would become
extremely necessary to avert
irreparable harm to him.
Therefore, a mere re-arguing of
the original application would
not suffice. However the review
jurisdiction would be
emasculated if too much emphasis
were put on the question whether
the matter had been previously
argued. Thus where despite
argument on a matter, the court
arrived at a decision that was
so palpably unsustainable as to
be described as perverse, that
would constitute an exceptional
circumstance. Also where a
decision was the product of a
very serious inadequate
consideration of the case
presented i.e. where the court
had overlooked very material and
practically decisive matters
that would constitute an
exceptional circumstance. In
such cases the record of appeal
and not just the bare judgment
delivered would be required for
the determination of the review
application. In re Effiduase
Stool Affairs (No3), Republic v.
Numapau, President of the
National House of Chiefs; Ex
parte Ameyaw II (No. 3)
[2000] SCGLR] 59; Adji & Co v
Kwamang [1982-83]2 GLR 1382
at 1394, CA; Brutuw v Aferiba
[1984-86] 1GLR 25 at 30, CA;
Gyamerah v Brefo
[1984-86] 1GLR 110 at 115, CA;
Kambey v The Republic
[1989-9-] 1GLR 213 a 20. CA,
Akyea-Djamson v Duagbor
[1989-90] 1GLR 223 at 259, SC;
Benneh v The Republic
[1974[ 2 GLR 47 at 59, CA;
A/S Norway Cement Export Ltd v
Addison [1974]2 GLR 177, CA;
Swaniker v Adotei Twi II
[1966] GLR 151 at 162-163, SC;
In re Gomoa Ajumako Paramount
Stool (No 2); Application for
substitution, Acquah Applicant;
Kwa Nana v Apau [2000] SCGLR
394 at 397; Republic v High
Court, Kumasi; Ex parte
Abubakar(No 3) [2000] SCGLR
45; NTHC V Antwi
[2009]SCGLR 117; and Koglex
Ltd (No2) v Field [2000]
SCGLR 175 cited.
In Paragraph 1 of the amended
Statement of Claim in Suit No
AHR10/2007, filed on 2 December
2009 the Plaintiffs averred:
The Plaintiffs were at all
material times employees of the
Defendant, having been employed
and worked for the Defendant at
various intervals between 1961
and 2002. The Plaintiffs agitate
a common ground of action in
fact and in law against the
Defendant. The Plaintiffs
attached hereto a scheme showing
the particulars of each
Plaintiff’s name; date engaged
by Defendant; date of leaving
Defendant’s employment, total
period of engagement; and age at
the time of leaving the
Defendant’s employment.
The ‘scheme ‘ consist of
details of the employment
particulars of each Plaintiff in
a form of a table, instead of
setting each fact in a separate
paragraph as was done in the
initial statements of claim
filed by the parties consisting
of 131 and 290 paragraphs
respectively.
In Paragraph 1 of the amended
statement of defence filed on 9
December 2009, the Defendant
averred:
The Defendant admits paragraph 1
of the amended statement of
claim that says the Plaintiffs
were employees of the defendant
bank between 1961 and 2002 but
denies that they agitate a
common ground of action in fact
and in law against the Defendant
in view of the varied sets of
facts of employment that pertain
to each individual as an
employee.
The Defendant by the averments
in paragraph 1 of the Statement
of defence did not deny the
employment history of the
Plaintiffs. What was put in
issue by the pleading above was
whether the Plaintiffs were
agitating a common ground of
action “in view of the varied
set of facts of employment that
pertain to each individual as an
employee”; which was contained
in the scheme or list.
Furthermore the defence that the
Plaintiffs action was statute
barred was made in reference to
their respective date of
retirement as specified in the
statement of claim. This is
contained in Paragraph 7 of the
Statement of defence. It reads:
“ Defendant says since the
Plaintiffs’ alleged rights
accrued upon their retirement as
specified in the statement of
claim, the claims put forward
are statute barred under the
Limitation Decree 1972(NRCD 54)”
The amended statement of claim
and statement of defence filed
by the parties in Suit No
AHR/3/2007 filed on 21/01/08 and
30/01/08 respectively are
literally the same as in the
other consolidated suit.
Since the respective dates of
retirement were not in issue,
the evidence given on behalf of
all the Plaintiffs by Emmanuel
Christian Plange was on their
common efforts to get the
management to pay them their
pension benefits; in the belief
that the scheme was still in
existence and applicable to all
category of staff leaving the
employment of the Defendant.
There was also evidence that the
Defendant was willing to pay the
pension benefits of staff
members who retired before the
abrogation of the pension
scheme.
The High Court in its judgment
did not make a distinction
between the two categories of
staff in its judgment as it was
of the view that the pension
scheme was in existence and
applicable to all retired staff
members and thus gave judgment
for those who met the criteria
in Rule 3 (a) of the pension
regulations. He dismissed the
case of 137 staff members who
did not meet the criteria. He
used the lists attached to the
statements of claim to make
these decisions.
We note that Counsel for the
Respondent did not raise any
objection to the use of the
lists by the High Court in the
grounds of appeal at both the
Court of Appeal and the ordinary
bench of the Supreme Court.
Counsel is therefore precluded
from raising this objection now.
At this point the issue we have
to consider is whether the
applicants have established any
exceptional circumstance to
warrant the exercise of our
review jurisdiction.
The ordinary bench made a
finding that all the Plaintiffs
left the employment of the
Defendant in the year 2000 or
thereabout. This finding was
based on the evidence put before
the Court by the Defendant that
the Plaintiffs were retrenched
in the year 2000. Both Counsels
failed to bring to the attention
of the ordinary bench the fact
that the applicants before us
retired before 31 December 1990
and were therefore in a
different category from the rest
of the Plaintiffs although they
were pursuing a common ground of
action.
The ordinary bench, in its
judgment held that staff members
who had retired before the
abrogation of the scheme on 31
December 1990 were legally
entitled or competent to mount a
claim for specific performance
after the termination of the
scheme. And that by section 6
(1) of the Limitation Act, such
a claim is not statute barred.
Nine of the applicants have made
a case that the ordinary bench
glossed over the fact that they
had retired before the
abrogation of the scheme. By
this omission, the court
inadvertently treated them in
the same manner as the other
staff members who were still in
active service at the time the
scheme was abrogated and
dismissed their case as well.
In our opinion exceptional
circumstances exist for a
review. Failure to correct the
decision of the ordinary bench
would be to brush aside a
legitimate case of exceptional
circumstance that would result
in a miscarriage of justice.
Ordinary fairness requires that
this Court should make good its
omission; otherwise the
applicants would be missing out
on their accrued pension
benefits.
We will accordingly grant the
review of the judgment of 21 May
2014 in respect of 9 of the
Plaintiffs in the consolidated
suits namely:
1.
No. 81/1.Kuto Thomas Komla
2.
No.158/1 Samuel Alex Kofi Mensah
3.
No.195/1 Stephen Owusu-Boahene
4.
No.238/1 Lawrence Amankwah
5.
No.266/1James Kwame Danso
6.
No.279/1 Braimah Busanga
7.
No.318/1 Busanga Abdulai
8.
No.67/3 David Bampoe
9.
No.71/3 J W, Cudjoe
From the foregoing,we enter
judgment for the above 9
Plaintiffs/Applicants and hereby
make a declaration that the 9
Plaintiffs/Applicants are
eligible to enjoy their accrued
pension benefits under the
Special Pension Scheme before it
was abrogated. The Defendant is
ordered to compute and pay to
the 9 Plaintiffs/Applicants
their special pension benefits
with interest at the Bank of
Ghana rate. The interest is to
be calculated from the date of
the High Court Judgment to date
of final payment.
We however dismiss the review
application in respect of
Plaintiff/Applicant 230/1;
Dennis Nii Lassey who according
to the list attached to the
Statement of claim retired on
31/12/ 1999 and therefore fell
outside the category of the
other applicants.
(SGD)
S. O. A. ADINYIRA
(MRS)
JUSTICE OF THE SUPREME COURT
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
KWEKU PAINTSIL ESQ. FOR THE
PLAINTIFFS/RESPONDENTS/
RESPONDENTS/APPLICANTS.
THADEUS SORY ESQ. WITH HIM NANA
SEKYIWAA FOR THE DEFENDANT
/APPELLANT/APPELLANT/RESPONDENT.
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