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JUDGMENT
ANSAH, JA :
This is an appeal
against the judgment of an Accra High Court delivered
on 15th December 1999. As per their writ of summons,
the plaintiffs claimed the following reliefs against the
defendants, namely:
(a) Declaration that
plaintiffs’ redeployment or termination of their
appointment or howsoever called, is wrongful and
unlawful, null and void of no legal effect;
(b) Order that
Defendants pay to Plaintiffs their due entitlements
under the provident fund scheme.
(c) Compensation for
wrongful termination of appointment.
(d) Order that
Defendants (sic Plaintiffs) be paid their accrued
salaries from the date of their pretended termination or
re-deployment until the final determination of their
status with the Defendant Corporation, or in the
alternative.
(e) An order
compelling Defendants to go by the laid down provisions
for the payment of End of Service Award under the
Collective Bargaining Agreement.
In his judgment after
the trial of the case, the trial judge said, in entering
judgment for the plaintiffs that:
(a) “The Defendant
Corporation was right in terminating the appointments of
Plaintiffs.
(b) Defendant
Corporation is to compute Plaintiffs’ entitlements by
reference to Section 28(4) of the Collective Bargaining
Agreement and in particular the Defendant must apply the
salary of each plaintiff at the point of re-deployment
on 20/10/93. From this should be deducted whatever has
already been paid to each plaintiff. The difference is
to attract interest.
(c) Defendant
Corporation is to provide each Plaintiff with a
statement of account of his Provident fund contribution
to determine if there has been any under-payment. Any
difference should be paid back to Plaintiffs with
interest; and
(d) The severance award
of two months’ salary and four months’ salary
respectively paid to Junior and Senior Staffs should not
be disturbed by the court. In order words the claim for
enhancement of the awards is dismissed”.
All the trial, the
plaintiffs said that they were employees of the
Defendant Corporation. It was on 28/10/92 when they
were told that their employment with the corporation had
been terminated. In fact they were 155 in all and the
plaintiffs were only some of them. Meanwhile, their
appointments were governed by a Collective Bargaining
Agreement. In a Certificate of Service issued to each
of them after the dismissals, the reason given for their
dismissals was that they were being re-deployed. The
plaintiffs complained that they worked very diligently
with the Defendant Corporation and so much without any
blemish that they did not deserve to be treated that
way. They also said that they contributed into some
funds in the hope and belief that in the event of
leaving the employ of the Defendant Corporation they
would be paid back to them. Their hopes did not
materialize for nothing was ever paid to them. To
vindicate their rights under the terms of the collective
agreement, they instituted the action that culminated in
the judgment under appeal.
The defendant on the
other hand did not agree that there were any sums of
money to be paid to the plaintiffs for they had paid all
their entitlements under the collective agreement to
them in full. In so doing, they had the full backing in
the form of a fiat of the Ministry of Labor and Social
Welfare. Originally, the Defendant Corporation filed
six grounds of appeal including the omnibus ground that
the judgment was against the weight of evidence. This
ground was later abandoned. Other grounds of appeal
were that:
“2(b) that the Learned
Trial Judge misdirected himself on the evidence when he
stated that Defendant’s conduct in freezing plaintiffs’
entitlement under Section 28.04 was not only wrongful
but also led to various diminutions in the Plaintiffs’
entitlement.
That the trial judge
failed to adequately consider that the freezing of the
Plaintiffs’ entitlement was a Government decision, which
was accepted by representatives of employees including
plaintiffs.
(a) That the learned
trial judge erred in law when he held that the freezing
of the End of Service Benefits was contrary to law even
though it was by a Government directive;
(b) The Learned Trial
Judge erred in law when he failed to consider that under
the Transitional Provisions of the 1992 Constitution
such a directive cannot be entertained by any Court of
Law;
(c) The Learned Trial
Judge erred in law when he held that Defendant was to
provide each plaintiff with a statement of Account of
his Provident Fund Contribution when the same was not
claimed even though in evidence the plaintiffs claimed
they had not been given a statement”.
This appeal is seeking
an order to set aside that part of the judgment that
dealt with Paragraph 2 set out above. Counsel for the
appellants argued 2(b), (c) and (a), (b) and (c) which
with the permission of the court now read (d), (e) and
(f), together. The submission in support of these
grounds was that one James Baiden, giving evidence for
himself and the other plaintiffs said that he was paid
¢3,326,234.94 out of which ¢2,743,356.00 was for an End
of Service Benefit (E.S.B). In so doing, the defendant
failed to comply with Section 28.04 of the collective
Bargaining Agreement. That was Exhibit B at the trial.
Counsel drew attention to the fact that as per Exhibit
G, the balance left unpaid of the E.S.B was 60% of the
total and that was ¢1,646,014.53. James Baiden however
admitted later that it had been paid to him. His
complaint was that if he had been paid under the heading
“redeployment” he would have received a higher sum of
money. Counsel pointed out that term was unknown to
Exhibit B, the collective agreement. Concerning the End
of Service Award in Exhibit B, counsel maintained that
it was the same as End of Service Benefit that was
abolished by the Government in 1990. I must pause here
and refer to the said Section 28.04 of the collective
agreement. It was what was to be paid to employees on
their leaving the service of the Corporation, other than
summary dismissal.
That the E.S.B that
inarguably was said to be the same as End of Service
Award, was frozen in 1990 by the Government was
confirmed in evidence by the Representative of the Chief
Labour Officer, Mr. Adisa Sulley. I have no reason to
doubt his veracity on this assertion, for, who and when
the E.S.B was frozen is a notorious fact of which this
court can take judicial notice. The learned trial judge
took due notice of the E.S.A or E.S.B and commented thus
on it.
“It therefore means
that whatever agreement may have been reached by the
Tripartite Committee to freeze the E.S.A would be in
direct conflict with S. 28.04 of exhibit ‘B’, since the
said E.S.A was to be paid to employees of Defendant
Corporation on death or on leaving the service of the
Corporation other than on summary dismissal”.
It was pointed out that
the Government froze all E.S.Bs itself but not by the
Tripartite Committee as the judge held. If he had
appreciated that point correctly, he would not have said
that what the Committee did was inconsistent with the
Collective Agreement and sinned against Section 10(4) of
the Industrial Relations Act 1965, Act 299, and for that
reason was wrongful and a diminution of the plaintiffs’
entitlements. By taking that line the trial judge, it
was submitted, disabled himself from considering whether
the decision by Government to freeze the E.S.B/E.S.A.
was unlawful or wrongful. It was emphasized upon that
it was the then P.N.D.C Government itself that froze the
end of service benefits in 1990. As and act by the
Government, it could not be questioned in any court of
law under Provision 34(5) of the Transitional Provisions
of the 1992 Constitution. As stated the submission on
the Transitional Provisions were marshaled in support of
grounds 2(b), (c), (d), (e) and (f) of appeal.
The reply by counsel
for the respondent was a three-fold denial of the
invocation of the said transitional provisions. It was
submitted that the appeal to those provisions was
totally misconceived. Also that the courts’ attitude to
provisions that tend to oust their jurisdiction was one
of repulsion and abhorrence and thirdly that the
conditions necessary in order to successfully invoke the
ouster clause did not obtain in this case. The argument
in support of the first point raised was that going by
what a learned author, S.Y. Bimpong-Buta wrote at page
253 in his invaluable book, “ “The Law of Interpretation
in Ghana–Exposition and Critiques” that “ to take away
the power of jurisdiction of all Courts or Tribunals to
entertain any proceedings or grant any order in respect
of any ‘matter relating to the unconstitutional and
violent overthrow of the Government of Ghana by a coup
d’etat” was the primary objection of the whole of
Section 34 of the Constitution.
What the defendant did
in this case was not for the sake of any matter covered
or envisaged under this provision, namely, the
unconstitutional and violent overthrow of the Government
of Ghana, or a coup d’ etat. Rather it was a mere
industrial dispute that cannot be equated with what had
been proscribed by the constitution. The two other
grounds canvassed in support of the opposition to the
reliance of the transitional provisions were that there
is a judicial frown against them as was exemplified by
the case of Republic v. Court of Appeal & Others; Ex
parte Agyekum [1982-83] GLR 688.
I think it is not very
necessary to continue to set out the unending arguments
on the transitional provision and their efficacy in this
judgment. I think the pivotal issues in this case must
be gleaned from the claims put before the court and the
evidence led in support thereof. It was simply put a
claim for the payment of what the plaintiffs perceived
to be their entitlements upon leaving the employment of
the defendant. The plaintiffs thought that they were
entitled to receive an end of service benefits under the
collective agreements, among others. They put in a
claim for that relief. The trial judge apparently
agreed that the plaintiffs were so entitled. He
reasoned that the freezing of the end of service
benefits was a contravention of sections of the
Industrial Relations Act and was on account of that
wrongful. It mattered very little that he erred when he
said it was the Tripartite Committee that froze the
E.S.B. It was clear that it was the act of freezing the
end of service benefit that he condemned and not because
it was frozen by the committee. The significance in the
Kwakye case lay in the fact that it lay it down that a
successful invocation of the indemnity provisions in the
Constitution was predicated upon a demonstration of the
factual situation.
Admittedly, it must be
demonstrated to the court that the P.N.D.C Government in
fact issued a circular to freeze all Ends of service
benefits. One of the surest ways to do this was to have
just produced the circular. I subscribe to the view
that this was not the only way to prove this fact in
law. A certified true copy would serve the same
purpose. Yet another mode is for the court to take
judicial notice of the existence of such a circular. It
was all too clear that the trial judge was aware of the
freeze; he only fell into the egregious error that it
was by an agreement by the Tripartite Committee. It was
manifestly an executive act of the Government of the
day. The defendant was bound to follow it.
Section 34(5) of the
Transitional Provisions has been the subject of
interpretation in the Kwakye case. I do not attempt to
further construe it, seeing also that to do so is to
wander into an area reserved for the Supreme Court. I
only quote it in full now. It reads as follows:
“5. It is not lawful
for any court or tribunal to entertain an action
instituted in respect of an act or omission against a
person acting or omitting to act on the instructions or
authority of the Provisional National Defense Council or
the Armed Forces Revolutionary Council or a member of
the Provisional National Defense Council or the Armed
Forces Revolutionary Council and alleged to be in
contravention of any law, whether substantive or
procedural, in existence before or during the
administration of the Provisional National Defense
Council or the Armed Forces Revolutionary Council.”
In this case the
defendant purported to act on the circular
aforementioned in freezing the end of service benefits.
They were acting on the instructions of the P.N.D.C. The
trial judge said that the circular sinned against the
law of the land governing workers and their employers
and regarding agreement on how much benefits was
contrary to law. The first plaintiff did not mince his
words when he said that even though he had been paid the
whole of his benefits by giving first 40% of it and
later the balance of 60%. I think all the conditions
necessary to invoke section 34(5) of the Transitional
Provisions were satisfied. It was unlawful for the
judge to have entertained the claim for an order as was
put in by claim (e). He should not have made an order to
compel the defendants to compute the awards for the
plaintiffs under the severance awards provisions of the
collective agreement. I think the trial judge
misdirected himself by not directing his attention to
the ouster clause in the transitional provisions and
Section 34(5) in particular. He erred in this wise. In
consequence the able submissions in support of grounds 2
of the appeal are upheld.
By way of a brief
observation, no matter how one look at the ouster clause
of those provisions, sight must not be lost the purpose
they tend to serve in some respects, limited though they
may seem to be. In this case in particular, the then
P.N.D.C Government took the step of freezing but not
cancelling Ends of Service Benefits indefinitely. It
may seem unpalatable and even inimical to the overall
interest of the ordinary worker but that was the policy
of the Government of the day. We are very much aware of
efforts to do away with the policy so as to give some
ray of hope to the worker especially on his retiring
from employment. It is the wish of the Ghanaian worker
that sooner than later the freeze would be lifted and
many are looking forward to that day with much
expectation. As stated earlier, the task of pronouncing
on the validity or otherwise of the transitional
provisions or any part thereof is in excusive
jurisdiction of the Supreme Court and our wings are
clipped and our mouths zipped from commenting or even
attempting to interpret them. For the meantime we allow
the appeal on grounds two.
We do not say the same
for ground three. Admittedly, nowhere in the writ of
summons was any claim put in for accounts on the
Provident Fund to be furnished the plaintiffs. But the
answer to this ground is found in Order 20r5, which
provide that:
“5. Every statement of
claim shall state specifically the relief which the
plaintiff claims either simply or in the alternative,
and it shall not be necessary to ask for general or
other relief, which may also be given, as the judge or
court may think just, to the same extent as if it had
been asked for ….”
I have looked at the
amended statement of claim and found that it did not
contain any claim for account on the Provident Fund but
the rule afore-mentioned permits the trial court to give
a relief that has not been asked for. The provision is
that the judge would use his discretion in making or
awarding that relief. The most important consideration
is whether or not there was enough evidence on the
record to support such a relief being granted. For all
that was said, nothing appeared that there was no
evidence in support of the order for accounts on the
Provident Funds. Consequently we do not find any merit
in that ground of appeal and we dismiss it.
We also do not find any
reason to vary the judgment as a whole and we refuse the
invitation to us to vary it.
J. ANSAH
JUSTICE OF APPEAL
ESSILFIE-BONDZIE, JA:
I agree.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
S. T. FARKYE, JA:
I also agree.
S.T. FARKYE
JUSTICE OF APPEAL
COUNSEL:
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