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R U L I N G:
On 17th October,
2008, the Fast Track High Court
delivered its judgment in the
instant suit. The court was
presided over by Her Ladyship
Iris May Brown, J.A, sitting as
Additional High Court Judge.
The judgment was in favour of
the Plaintiffs and the following
orders were made:
“The court orders the parties
herein to proceed in accordance
with the orders issued by the
Supreme Court to appear before
the High Court for that Court to
calculate how much is due to the
Plaintiffs as follows:
(a)
Their salaries from the dates
they ceased to receive salaries
to the dates of their respective
de fact termination.
(b)
For all the Plaintiffs
additional twelve (12) months’
salary as damages for wrongful
dismissal as at the respective
dates of de facto termination.
(c)
They will be entitled to earned
leave allowances, bonuses, long
service awards, including food
packages and all other benefits,
all these are to be converted if
feasible into cash as at the
respective dates of their de
facto termination.
(d)
Their entitlement under article
40 of the Collective Agreement.
In calculating, account should
be taken of any period within
which an employee had obtained
employment within the relevant
period covered by that award and
any loans obtained from the
Company.
(e)
Interest is to be paid on amount
awarded from the dates of de
facto termination of their
contract to date of payment.”
Before I proceed any
further, I wish to give a brief
background of the events that
have culminated into this
ruling. All the Plaintiffs
herein were employees in
various departments of the
defendant Company. As a result
of the droughts in 1982/83, the
volume of water in the Volta Dam
fell to very dangerous levels.
Consequently, production or
generation of electric power was
adversely affected. Supply of
electricity to the Defendant
Company was drastically
reduced. This compelled the
Defendant Company to reduce its
operations. Discussions were
held between the Defendants and
the relevant representatives of
the workers. The Defendants
suggested a programme whereby
workers were made to proceed on
leave of absence without pay to
be recalled after a period or be
declared redundant. The leave
of absence without pay package
was referred to as Valco leave
of absence without pay/recall
Programme (L.O.A.). The Leave
of Absence (L.O.A.) programme
found favour with the workers as
against the redundancy provision
found in the Collective
Agreement.
Following the
signing of the Leave of Absence
(L.O.A.) Agreements the
employees were made to proceed
on leave in batches.
Unfortunately, the period of
recall came and went with no
improvement in the water level
at Akosombo. Consequently each
batch was declared redundant.
On or about 19th
June 1987 a group of the
employees who were so declared
redundant took out a Writ of
Summons against the Defendants.
They claimed inter alia damages
for wrongful dismissal. That
case travelled through to the
Supreme Court. The said case is
reported as Abrahim Tokoli & Ors
vrs VALCO [1989-90] 2 G.L.R.
349. The Supreme Court upheld
the claims of the then
Plaintiffs and directed the
parties to the High Court for
the various entitlements of the
individual Plaintiffs to be
calculated.
After taking
evidence the High Court,
presided over by Afreh J.A. (as
he then was) sitting as an
additional High Court Judge
delivered his judgment on 16th
May 1997. The Defendants were
not satisfied with his decision
and therefore appealed to the
Court of Appeal. On 27th
January 2005, the Court of
Appeal presided over by Lartey
(J.S.C.) delivered its judgment
dismissing the appeal. It would
appear that the Abraham Tokoli
group were paid their
entitlements based upon the
computations made by Afreh J.A.
which orders were confirmed by
the Court of Appeal.
The Plaintiffs herein who
were also employees of the
Defendant Company and who
suffered the same faith as the
Plaintiffs in the Abraham Tokoli
suit mounted their action after
the Supreme Court had delivered
its judgment in the said Tokoli
suit. It would appear that at
the hearing of this case the
Plaintiffs successfully raised
the doctrine or principle of
estoppel res judicata against
the Defendants. The Defendant
based upon the Supreme Court’s
decision in the Tokoli case,
was estopped from mounting a
defence to the Plaintiffs’
action.
The learned trial
Judge then held that the
Defendants cannot re-litigate
the same issues that had been
ruled upon by the Supreme
Court. Like the Supreme Court
in the Tokoli case she also
directed the parties to proceed
to the High Court for the
computation of what was due to
the Plaintiffs.
The parties on their
own have mutually tried to do
the computation but to no
avail. Indeed they had gone
very far. In fact they have
mutually agreed on all the heads
under which payments were to be
made to the Plaintiffs. What is
in issue now is the basis or
salary that should be used for
the computation.
I must state very
emphatically that going by the
tenor of the judgment delivered
by Her Ladyship on 17th
October 2008 this court cannot
be said to be functus officio as
the defence lawyers seem to be
contending. This is because her
Ladyship clearly and
unambiguously directed that the
parties should come to this
court for the computation of
Plaintiffs’ entitlements to be
done. It was with this
understanding that this court
directed the parties to file
submissions upon which a
decision could be made following
their failure to mutually agree
despite years of negotiations
and extensive show of goodwill.
Now in their
submissions the Plaintiffs are
inviting this court to use what
they described as “indices
of money depreciation”
in the determination of what
they were to be paid by way of
salaries. On the contrary the
Defendant finds the Plaintiffs’
submission very strange and
untenable. According to the
Defendant, the judgment is very
clear and leads itself to
no controversy at all.
Defendant argued further that
the judgment is based on the
salaries payable to the
Plaintiffs at the time of their
respective de facto termination
and did not require the use of
any other basis.
As indicated earlier
this judgment is based entirely
on the decision of the Supreme
Court in the Tokoli case. The
Tokoli case was also the basis
of Afreh J.A.’s (as he then was)
decision. The Plaintiffs in the
Tokoli case were all paid
pursuant to the decision of
Afreh J.A. (as he then was).
The salaries used to compute the
entitlements of the Plaintiffs
in the Tokoli case was the
salaries at the time of their
respective de facto
termination. No indices of any
sort were employed or used. In
the instant case the order that
has to do with salary was very
clear. It stated that the
Plaintiffs were entitled to
their salaries from the dates
they ceased to receive salaries
to the dates of their respect de
facto termination. The order
made no room of the use of any “indices
of money depreciation.”
The order is also in consonance
with the decision of Afreh J.A.
(as he then was).
Since Afreh J.A. has
already led the way, this court
can only follow in his path but
not stray into the use of some
indices of money depreciation
whose formulae have not even
been provided. With the
greatest respect, I do think
very strongly that this court
cannot hold or do otherwise as
that would amount to deviating
from the express words or terms
and antecedents of the
judgment. For me, if the
Plaintiffs wanted the use of
indices of money depreciation
they should have promptly
applied for the review of the
order or contested the order on
appeal. As things stand now, I
do not think this court has the
power or jurisdiction to vary
the express orders made by
introducing any form of indices
into the computation of the
Plaintiffs’ entitlements.
It is from all the
above that I hold that the
applicable salary is the
salaries of the Plaintiffs at
the time of their respective de
facto termination.
(sgd.) M.H. LOGOH
JUSTICE OF THE HIGH COURT.
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