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The bone of contention in the
instant suit is whether the
plaintiff, Jerry J. Obodai-Sai
is qualified for pension under
the Social Security and National
Insurance Trust Scheme.
With the exception of a few
areas, the facts of this case
are not in dispute. The
plaintiff started his employment
with the Ghana Commercial Bank
from July, 1967 which employment
came to an end in May, 1981.
Social security contributions
were paid for and by the
plaintiff to the defendant
pension scheme for all this
period which is a total of 167
months. From July 1996 to
December 2001, the plaintiff was
in the employment of Paramount
Distilleries Limited where again
contributions were made for and
by him to the defendant pension
scheme covering a period of 66
months. This brings the total
undisputed contributions of the
plaintiff to 233 months.
The parties, however, join
issues on two factual matters.
The first is that while the
plaintiff contends that at the
time he severed his relationship
with Ghana Commercial Bank the
latter paid him 3 months salary
in lieu of notice and 4 months
salary for his outstanding
earned leave and in which social
security contributions were duly
paid. The defendant flatly
denies any such payment.
The second dispute is that the
plaintiff alleged that he worked
with Opayesco Wood Processing
Limited from February, 1995 to
December, 1995 and social
security contributions were paid
for his benefit covering a
period of 11 months. The
defendant denies this and
averred on the contrary that the
said company was defunct within
the period plaintiff alleges
that he was in their employment.
Before addressing the legal
issue involved which in any case
is not in dispute, I would
proceed to deal with these two
factual issues which are in
dispute.
The first factual issue as
already indicated above is
whether social security
contributions were paid in
favour of the plaintiff by Ghana
Commercial Bank for three months
salary in lieu of notice and
four months salary for earned
leave.
The plaintiff, in his evidence
in support that he contributed
174 months in his employment
with the Ghana Commercial Bank
relied on his contribution
statement from the defendant
(Exhibit C series). The
plaintiff draws inference from
the statements that
contributions were made from the
3 months salary in lieu of
notice and 4 months salary for
earned leave because he worked
with the Ghana Commercial Bank
for 167 months. By simple
arithmetic calculation, if the 3
months salary and 4 months
salary is added to the 167
months you get 174 months. This
informs the 174 months recorded
by the defendant statements of
the plaintiff’s contribution in
the employment of the Ghana
Commercial Bank. There is no
dispute that the plaintiff
worked with Paramount
Distilleries Limited for 66
months. This thus brings the
total contributions of the
plaintiff to 240 months as
evidenced by the defendant’s own
statements (Exhibit C series).
The case of the defendant is
that social security
contributions are not paid in
respect of payment in lieu of
notice and earned leave. As such
it could not be true that Ghana
Commercial Bank paid 7 months
social security contributions to
the defendant in favour of the
plaintiff. Since the plaintiff
worked for Ghana Commercial Bank
for 167 months, the 174 months
stated in the defendant’s
statements of the plaintiff’s
contributions is a mistake.
However, the defendant tendered
in evidence a statement of the
plaintiff’s employment and
contributions history from Ghana
Commercial Bank (Exhibit 2). In
Exhibit 2, Ghana Commercial Bank
confirmed that it paid social
security contributions to the
defendant for the said 7 months.
Exhibit 2 was issued on
13-08-2007. The 7 months
contribution added to the 167
months becomes 174 months. The
174 months contribution is also
reflected in the defendant’s own
statements of the plaintiff’s
contribution (Exhibit C series).
However, the defendant led
further evidence that it later
wrote to Ghana Commercial Bank
on the issue of the 7 months
contributions and the latter
replied that social security
deductions are not made from
salaries paid in lieu of notice
and on outstanding leave
commuted to cash (Exhibit 6).
The defendant, therefore, relies
on this to deny the 7 months
contributions of the plaintiff.
It is employers and the
defendant who keep the official
records of the contributions of
workers. It is, therefore,
legitimate for any worker to
rely on these records for his
claims. The plaintiff duly
relied on the defendant and
Ghana Commercial Bank for
records on his contributions.
So, the plaintiff applied to the
defendant for his statement of
contributions and same was
supplied. He also applied to the
Ghana Commercial Bank for the
same statement and the latter
obliged. The two statements
corroborate each other to the
effect that he contributed a
total of 174 months. Indeed the
statement from the Ghana
Commercial Bank gave details as
to how it arrived at the 174
months. The details support the
plaintiff’s case that 7 months
contributions arose from 3
months salary in lieu of notice
and 4 months salary for
outstanding earned leave.
Section 37(1) of the Evidence
Act, 1975 (NRCD 323) provides as
follows:
“It is presumed that
official duty has been regularly
performed.”
The above is a rebuttable
presumption. In other words, the
presumption is that the
statements of contributions
issued by the defendant and the
Ghana Commercial Bank reflect
the truth unless the defendant
provides evidence to the
contrary. The only evidence the
defendant has provided to the
contrary is Exhibit 6 which is a
letter dated 18th
May, 2010 from the Ag. General
Manager of the Ghana Commercial
Bank to the effect that social
security contributions are not
deducted from salary paid in
lieu of notice and outstanding
leave commuted to cash.
In my view, the probative value
of Exhibit 6 is suspect. Exhibit
6 was written as a reply to the
defendant’s letter dated 15th
April, 2010 to Ghana Commercial
Bank complaining about the 7
months contributions (Exhibit
5). The defendant in Exhibit 5
stated that the said payment
does not reflect in its records.
If the said payment does not
reflect in their records, that
is a problem between the
defendant and Ghana Commercial
Bank to sort out. The solution
is not for Ghana Commercial Bank
to deny its own statement of
contribution the plaintiff made
when he was in their employment
(Exhibit 2). Exhibit 6, in my
view, is, therefore, an
afterthought and cannot be true.
Furthermore, if Exhibit 6 is
true, it would be contrary to
law. Section 22(i) of the Social
Security Act 1991 (PNDCL 247)
which is the relevant law in
respect of this case states as
follows:
“An employer of an establishment
shall deduct from the pay of
every employee in that
establishment immediately at the
end of the month, the employee’s
contribution of an amount of 5%
of the employee’s pay for that
period, irrespective of whether
or not the pay is actually paid
to the employee.”
“Pay” is defined in section 45
of PNDCL 247 as follows:
“… includes emoluments which are
earned by an employee while on
duty in accordance with the
express or implied terms of the
contract of employment … and
which are paid or payable in
cash at fixed or determinable
intervals of time. …
and the emolument which are
earned by the employee on leave
…”
From the provision of section 45
of PNDCL 247, salaries paid in
lieu of notice and payments for
earned leave constitute “pay”
for which deductions are bound
to be made by the employer in
accordance with section 22 of
PNDCL 247.
Accordingly, Ghana Commercial
Bank was bound to deduct and pay
plaintiff’s contributions to the
defendant for the 3 months
salary in lieu of notice and the
4 months salary for the
outstanding earned leave.
Exhibit 2 clearly complied with
the law. And this is reflected
in the Exhibit C series and
other statements from the
defendant. In other words, it is
in the records of the defendant
that the 7 months contributions
of the plaintiff were paid to
the defendant by Ghana
Commercial Bank.
Moreover, the defendant is
conclusively presumed to have
admitted that the plaintiff
contributed 174 months from his
employment from Ghana Commercial
Bank from its statements of the
plaintiff’s contributions by
virtue of section 26 of NRCD 323
which states as follows:
“Except as otherwise provided by
law, including a rule of equity,
when a party has, by his own
statement, act or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest in any
proceedings between that party
or his successors in interest
and such relying person or his
successors in interest.”
Thus, by issuing statements of
the plaintiff’s contributions
which reflect that the plaintiff
contributed 174 months from his
employment with Ghana Commercial
Bank, and which plaintiff relied
upon to put in his claim for
pension, the defendant cannot at
the last hour say that what it
has stated in those statements
and which is still in its
records is untrue.
Accordingly, I find as a fact
that the plaintiff contributed 7
months from his 3 months salary
in lieu of notice and 4 months
salary for outstanding earned
leave. This brings the total
contribution of the plaintiff
from Ghana Commercial Bank to
174 months which is reflected in
the defendant’s own statements
(Exhibit C series).
The second factual dispute is
the plaintiff’s 11 months
contribution from Opayesco Wood
Processing Limited. As the rules
of evidence provides, it is the
plaintiff who asserts this so
the onus is on him to persuade
the court to accept same (viz
Section 14 of NRCD 323). The
evidence of the plaintiff in
support of his assertion is
contained in Exhibits D, E, F
and G. All these exhibits only
show that the plaintiff was in
the employment of Opayesco Wood
Processing Limited from
February, 1995 to December,
1995. Nowhere in these exhibits
is it stated that the plaintiff
paid social security
contributions to the defendant.
It is also not reflected in any
of the defendant’s records. So,
there is no evidence at all to
support the plaintiff’s
assertion that he contributed 11
months social security to the
defendant. I, therefore, find as
a fact that the plaintiff did
not contribute any social
security to the defendant while
he was in the employment of
Opayesco Wood Processing
Limited.
From the facts found, therefore,
the plaintiff contributed 174
months social security from his
employment with Ghana Commercial
Bank and 66 months from
Paramount Distilleries Limited
to the defendant. This brings
the total contribution of the
plaintiff to defendant to 240
months.
The qualifying conditions for
pension are stated in section 35
of PNDCL 247. The section states
thus:
“35. (1) A person
who
(a)
has satisfied the minimum
contribution period of not less
than two hundred and forty
months,
(b)
has attained the age of sixty
years
…
(c)
has filed an application for
superannuation benefit,
is entitled to a pension payment
for each month beginning with
the first month in which that
person becomes so entitled to
the payment.
…”
In this case, there is no
dispute that the plaintiff
turned sixty years in 2003.
There is also no dispute that
the plaintiff in March 2006
applied for his pension. What
has been disputed by the
defendant is whether the
plaintiff contributed at least
240 months. By my finding
hereinbefore, he contributed 240
months. The plaintiff, thus,
qualifies for pension.
The plaintiff is, therefore,
entitled to the reliefs he seeks
from this court namely:
1.
A declaration that the plaintiff
is qualified to receive pension
from the Social Security and
National Insurance Trust.
2.
An order for the payment of
plaintiff’s pension and all
outstanding arrears.
3.
Interest on any outstanding
amount found due.
4.
GH¢5,000.00 general damages.
The plaintiff is also awarded
cost of GH¢5,000.00.
COUNSEL:
1. Mr. L. S. N. Akuetteh for the
Plaintiff
2. Mr. Baffour Akoto for the
Defendant.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
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