|
Labour – Master and servant -
Employment -
Unpaid salaries and allowances -
Wrongful interdiction -
Voluntary retirement package -
Interest on the said sum -
National Labour Commission -
Conditions of Service of
Management Staff - Whether or
not plaintiff was ever
re-instated with full benefits
after his interdiction by the
defendant - Whether or not the
said re-instatement was lawful
Whether or not plaintiff did
voluntarily retire from the
services of the defendant -
Whether or not plaintiff is
entitled to the payment of
retirement benefits and arrears
of salary and allowances upon
his re-instatement after his
interdiction - particularly
sections 137 to 143 and section
193 - Companies Act, 1963 [Act
179] - Court’s (Award of
Interest and Post Judgment
Interest) Rules, 2005 [C.I. 52]
HEADNOTES
Plaintiff’s case was that he was
employed by the defendant until
he voluntarily retired as a
senior management staff in
December 2012. Somewhere in the
year 2007, whilst on leave, he
received a letter informing him
that an anomaly had been
detected in his salary so he was
going to be paid fifty per
centum (50%) of his salary
pending investigations into the
alleged finding. He received
this half salary for only two
months;. He didn’t receive any
salary again until January 2008
when he received a letter that
he had been interdicted. He
fought his interdiction and sent
a petition to the National
Labour Commission against the
defendant. September, 2011,
whilst his petition before the
National Labour Commission was
pending, he received a letter
from the defendant signed by the
Managing Director, re-instating
him on the ground that the
allegation against him which led
to his interdiction, had been
found to be without substance.
The letter stated further that
all his arrears of salary and
other allowances from the time
of his interdiction to the date
of re-instatement must be worked
out and paid to him without any
objection from the defendant
when his arrears of salary
and other allowances during the
period of his interdiction was
worked out, it came to one
hundred and twenty thousand,
nine hundred and ninety-four
Ghana cedis, seventy-seven
pesewas,out of this sum,
forty-two thousand, five hundred
and twenty-four Ghana cedis and
nineteen pesewas was paid to him
but the balance of seventy-eight
thousand, four hundred and
seventy Ghana cedis, sixty-eight
pesewas had remained unpaid.
After his re-instatement, he
worked for over a year with the
defendant with full benefits. On
11th September 2012,
he gave formal notice to the
defendant of his intention or
decision to retire from his
employment on 24th
December 2012 by which time he
would have reached the voluntary
retiring age of fifty-five (55)
years. He therefore requested
for the payment of the balance
which was outstanding and his
retirement benefits for the
period of his employment, The
defendant agreed to pay him
something so they commenced
negotiations on the figure.
However, in the course of
negotiations, he noticed that
his lawyer who was representing
him at the negotiations was also
acting for the defendant in
other cases. As a result of this
conflict of interest position of
his lawyer, he was not getting a
good deal from his lawyer so he
withdrew from the negotiations
and dispensed with the services
of his lawyer. Not long after,
he received a letter November
2012 from the defendant
purporting to revoke his
unconditional re-instatement
that took place more than a year
ago .He was again requested to
meet a Disciplinary Committee of
the defendant to be investigated
over charges leading to his
interdiction in 2008. Whilst all
these developments were taking
place, the defendant wrote to
the plaintiff in a letter
November 2012 offering to pay
some amount to him as his
entitlement package upon his
voluntary retirement in December
2012. Plaintiff said this offer
did not bear any relationship
with his lawfully earned
entitlements under the
Conditions of Service of
Management Staff of the
defendant, which was applicable
to him. He therefore took this
action to claim what
legitimately belonged to him.
The trial High Court, dismissed
plaintiff’s action in its
entirety. The trial court was of
the view that plaintiff was not
entitled to the sum, The Court
of Appeal held, contrary and
allowed plaintiff’s appeal
HELD
we cannot agree more with the
expositions made by the Court of
Appeal and the conclusions it
arrived at with regard to those
provisions and their application
to the case in point. We also do
agree with the Court of Appeal
that plaintiff actually retired
voluntarily from the employment
of the defendant, having duly
notified it in a letter to that
effect, which decision defendant
impliedly accepted or approved
of, judging from the steps
defendant took to broker
amicable retirement benefits for
plaintiff. With regard to the
sum of, which plaintiff said was
the total of his accumulated
arrears of salary and retirement
benefits/emoluments, defendant
did not challenge in any way
plaintiff’s testimony as to how
he arrived at this figure in
conformity with the conditions
of service of defendant’s senior
management personnel. Having
failed to challenge this figure
in positive terms, the law did
not require plaintiff to offer
any further proof. We therefore
endorse the Court of Appeal’s
finding that plaintiff was
entitled to this amount as the
sum total of his arrears of
salary after his reinstatement
and retirement benefits from the
date of his employment in 1999
to the date of his voluntary
retirement in December 2012. We
order that interest on this
amount in accordance with the
Court’s
(Award of Interest and Post
Judgment Interest) Rules, 2005
[C.I. 52] be calculated
beginning 24th
December 2012 to date of
payment. We accordingly dismiss
the appeal.
STATUTES REFERRED TO IN JUDGMENT
Companies Act, 1963 Act 179
Court’s (Award of Interest and
Post Judgment Interest) Rules,
2005 [C.I. 52]
CASES REFERRED TO IN JUDGMENT
Tuakwa v Bosom [2001-2001] SCGLR
61;
Djin v Musah Baako [2007-2008]
SCGLR 686;
Abbey v Antwi [2010] SCGLR 17
Oppong Kofi & Ors v Attibrukusu
III [2011] 1 SCGLR 176
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
APPAU, JSC:-
COUNSEL
YAW D. OPPONG FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
O. K. OSAFO-BUABENG WITH
BENEDICTA ANTWI FOR THE
DEFENDANT/ RESPONDENT/
APPELLANT.
APPAU, JSC:-
The respondent herein was the
plaintiff in the trial High
Court. He sued the appellant
herein who was his employer as
defendant, claiming three (3)
major reliefs plus other
ancillary ones. The major
reliefs were: i.
a claim for the liquidated sum
of GHc327,486.47, which he
described as outstanding balance
of arrears
of unpaid
salaries and allowances during
the period of plaintiff’s
wrongful interdiction and
voluntary retirement package;
ii.
interest on the said sum
from 26th
September 2011 till date of
payment and; iii.
damages for wrongful
interdiction. The ancillary
reliefs were: iv. An
order to set aside a purported
re-imposition of plaintiff’s
earlier wrongful interdiction
and; v. a
declaration that plaintiff
lawfully and effectively retired
from defendant’s employment upon
the attainment of fifty-five
(55) years on 24/12/2012.
Plaintiff lost in the trial High
Court but on appeal, the Court
of Appeal reversed the decision
of the trial High Court and
entered judgment in his favour
in respect of some of his
reliefs. His employer the
defendant is now before us
praying us to also reverse the
Court of Appeal and restore the
judgment of the trial High
Court. The parties (i.e.
appellant and respondent) shall
hereinafter, maintain their
titles as pertained in the trial
High Court; i.e. defendant and
plaintiff respectively.
Facts of the case:
(a)
Plaintiff’s case
The gravamen of
plaintiff’s case was that he was
employed by the defendant on 1st
December 1999 until he
voluntarily retired as a senior
management staff on 23rd
December 2012. Somewhere in the
year 2007, whilst on leave, he
received a letter on 14th
November 2007 informing him that
an anomaly had been detected in
his salary so he was going to be
paid fifty per centum (50%) of
his salary pending
investigations into the alleged
finding. He received this half
salary for only two months; i.e.
October and November 2007. He
didn’t receive any salary again
until 14th January
2008 when he received a letter
that he had been interdicted. He
fought his interdiction and sent
a petition to the National
Labour Commission against the
defendant. On 26th
September, 2011, whilst his
petition before the National
Labour Commission was pending,
he received a letter from the
defendant signed by the Managing
Director, re-instating him on
the ground that the allegation
against him which led to his
interdiction, had been found to
be without substance. The letter
stated further that all his
arrears of salary and other
allowances from the time of his
interdiction to the date of
re-instatement must be worked
out and paid to him. Plaintiff
tendered in evidence this letter
of re-instatement during the
trial without any objection from
the defendant.
According to plaintiff, when his
arrears of salary and other
allowances during the period of
his interdiction was worked out,
it came to one hundred and
twenty thousand, nine hundred
and ninety-four Ghana cedis,
seventy-seven pesewas (GHc120,994.77).
Out of this sum, forty-two
thousand, five hundred and
twenty-four Ghana cedis and
nineteen pesewas (GHc42,
524.19) was paid to him but
the balance of seventy-eight
thousand, four hundred and
seventy Ghana cedis, sixty-eight
pesewas (GHc78,470.68)
had remained unpaid. After his
re-instatement, he worked for
over a year with the defendant
with full benefits. On 11th
September 2012, he gave formal
notice to the defendant of his
intention or decision to retire
from his employment on 24th
December 2012 by which time he
would have reached the voluntary
retiring age of fifty-five (55)
years. He therefore requested
for the payment of the balance
of GHc78, 470.68, which
was outstanding and his
retirement benefits for the
period of his employment, all of
which he calculated as amounting
to GHc327,486.47. The
defendant agreed to pay him
something so they commenced
negotiations on the figure.
However, in the course of
negotiations, he noticed that
his lawyer who was representing
him at the negotiations was also
acting for the defendant in
other cases. As a result of this
conflict of interest position of
his lawyer, he was not getting a
good deal from his lawyer so he
withdrew from the negotiations
and dispensed with the services
of his lawyer. Not long after,
he received a letter dated 8th
November 2012 from the defendant
purporting to revoke his
unconditional re-instatement
that took place more than a year
ago on the 26th of
September 2011. He was again
requested to meet a Disciplinary
Committee of the defendant to be
investigated over charges
leading to his interdiction in
2008. Whilst all these
developments were taking place,
the defendant wrote to the
plaintiff in a letter dated 26th
November 2012 offering to pay
some amount to him as his
entitlement package upon his
voluntary retirement on 24th
December 2012. Plaintiff said
this offer did not bear any
relationship with his lawfully
earned entitlements under the
Conditions of Service of
Management Staff of the
defendant, which was applicable
to him. He therefore took this
action to claim what
legitimately belonged to him.
(b)
Defendant’s case
Defendant admitted that
plaintiff was its employee who
held the positions he alleged to
have occupied in the defendant
company. Though defendant
admitted that plaintiff was
interdicted in 2008, it denied
that plaintiff received no
salary during the period of his
interdiction. Defendant’s
evidence on record did not
however show that plaintiff did
receive any salary during the
period of his interdiction.
Defendant again denied ever
re-instating the plaintiff after
the interdiction. Defendant’s
contention was that the Managing
Director who signed the
re-instatement letter did not do
so with the approval of the
Board of Directors of the
defendant. They even accused the
plaintiff for being the author
of the re-instatement letter
because of his closeness with
the then Managing Director of
the defendant. However,
defendant did not lead any
evidence whatsoever to support
this allegation of plaintiff’s
authorship of his re-instatement
letter. According to defendant,
when plaintiff was interdicted,
the defendant’s Board of
Directors constituted a
committee to investigate the
allegations against plaintiff
but plaintiff ignored their
invitations to appear before the
Committee. Contrary to its
evidence, defendant admitted
paying plaintiff the sum of
GHc42, 524.19 but denied
that it was part of his
entitlements or arrears of
salary. Defendant explained that
it paid that amount to plaintiff
to alleviate him from certain
financial constraints.
Notwithstanding its claim that
it never accepted plaintiff’s
voluntary retirement, defendant
admitted that it met with
plaintiff to negotiate some
retirement settlement for him
but before they could append
their signatures to the
agreement, plaintiff withdrew
from same and thereafter served
them with the writ of summons.
Defendant concluded that it
never approved of plaintiff’s
voluntary retirement so
plaintiff was not entitled to
any retirement benefits.
The decision of the trial High
Court
The trial High Court, on 15th
July 2016, dismissed plaintiff’s
action in its entirety. The
trial court was of the view that
plaintiff was not entitled to
the sum
claimed because:
1. He could not prove that he
was lawfully re-instated by the
defendant after his interdiction
on 14/1/2008;
(2) His voluntary retirement was
not duly accepted by the
defendant since he was never
re-instated after his
interdiction so he did not
qualify to be paid retirement
benefits;
(3) He did not establish or
prove that he was entitled to
the sum claimed as arrears of
salary and end-of-service
benefits.
Appeal before the Court of
Appeal
The plaintiff appealed against
the trial court’s decision to
the Court of Appeal in a notice
of appeal filed on 21/07/2016.
The notice contained five (5)
grounds of appeal. The Court of
Appeal, however, determined the
appeal on the omnibus ground
that the judgment of the trial
court was against the weight of
evidence on record, which was
the first ground of appeal in
the notice of appeal. This was
because the plaintiff centred
his arguments on this general
ground, which invariably,
encapsulates all the other
grounds of appeal. Guided by the
notorious principle of
procedural law which has been
fortified by case law in
authoritative decisions like
Tuakwa
v Bosom [2001-2001] SCGLR 61;
Djin v Musah Baako [2007-2008]
SCGLR 686; Abbey v Antwi [2010]
SCGLR 17 and Oppong Kofi
& Ors v Attibrukusu III [2011] 1
SCGLR 176 that; an
appeal is by way of re-hearing,
particularly when the omnibus
ground is one of the grounds of
appeal, the Court of Appeal
fully considered the totality of
the evidence on record as if it
was hearing the case afresh and
came to the conclusion that the
decision of the trial High Court
was not supported by the
evidence on record.
The Court of Appeal held,
contrary
to the decision of the trial
High Court that, plaintiff’s
re-instatement was lawful since
the act of the Managing Director
of the defendant was sanctioned
by the provisions of the
Companies
Act, 1963 Act 179. Also, his
voluntary retirement was
accepted by the defendant that
was why the defendant started
negotiations for the payment of
retirement benefits to him. The
Court of Appeal held further
that plaintiff was able to
establish that he was entitled
to the sum claimed since the
defendant, apart from a bare
denial in its statement of
defence, neither challenged
plaintiff during
cross-examination on the said
amount, nor led any evidence to
controvert that claim as made in
plaintiff’s witness statement to
the trial court. The Court of
Appeal therefore
allowed
plaintiff’s appeal and
granted him all the reliefs
claimed with the exception of
damages and impliedly relief 6,
which is embodied in relief 1.
Appeal before the Supreme Court
The defendant is praying us to
reverse the Court of Appeal and
restore the trial court’s
judgment in a notice of appeal
filed on 27/04/2017. Though the
notice of appeal contained seven
(7) grounds of appeal, the
defendant chose to argue only
four of the grounds; i.e. 1, 2,
3 and 4 in its statement of case
filed on 21/11/2018. The
defendant argued ground 3
separately and thereafter,
lumped grounds 1, 2 and 4
together and argued them as one
ground. These grounds are:
1.
The judgment is against the
weight of evidence adduced at
the trial;
2.
The learned justices erred
having found and held that the
ultra vires action of the
defendant/appellant managing
director by having written a
letter to recall
plaintiff/respondent without the
consent and knowledge of the
board of directors of the
defendant is binding on the
defendant/appellant;
3.
The learned justices with
respect erred having accepted
the calculation of the
plaintiff/respondent without any
cogent proof thereof even with
the calculation having been
challenged by the
defendant/appellant in its
pleadings, evidence as well as
in the address filed on record
and;
4.
The learned justices fell in
error having failed to avert
their mind on the failure of the
plaintiff/respondent to appear
before a 4-man committee
appointed to investigate
malfeasance leveled against the
plaintiff/respondent
Issues for determination by the
Supreme Court
The key issues raised in this
appeal, judging from the
submissions made by the parties
in their statements of claim,
have been the same issues raised
all along in the pleadings of
the parties. These fundamental
issues are:
i.
Whether or not plaintiff was
ever re-instated with full
benefits after his interdiction
by the defendant
on 14/01/2008;
ii.
If the answer is yes; whether or
not the said re-instatement was
lawful;
iii.
Whether or not plaintiff did
voluntarily retire from the
services of the defendant
on 24/12/2012;
iv.
Whether or not plaintiff is
entitled to the payment of
retirement benefits and arrears
of salary and allowances upon
his re-instatement after his
interdiction
and;
v.
Whether or not plaintiff was
able to prove that he was
entitled to the sum of GHc327,
486.47 as claimed.
On ground 3, defendant’s
contention was that plaintiff
did not lead any evidence to
prove that he was entitled to
the sum of GHc327, 486.47
so the Court of Appeal erred in
granting him that relief. With
regard to grounds 1, 2 and 4
which defendant argued together,
its main contention was that the
Court of Appeal erred in
concluding that plaintiff’s
re-instatement was lawful when
it was not sanctioned by the
Board of Directors of defendant.
Therefore, having failed to
establish that he was lawfully
re-instated, plaintiff was not
entitled to any end of service
benefits or entitlements and
therefore not entitled to the
sum claimed. The above is the
epitomized version of the case
argued by the defendant before
us. It has been the same game
all along as the plaintiff
disagreed with the defendant and
has prayed for the dismissal of
the appeal.
The views of the Supreme Court
We wish to state on record that
both parties called no witness.
Plaintiff testified alone and
supported his testimony with
documents. Defendant also
testified through its director
by name Peter Biney whose
testimony, invariably, supported
plaintiff’s case to a large
extent. Whilst he admitted that
the defendant’s Managing
Director did write to the
plaintiff to reinstate him
almost four years after his
interdiction and that plaintiff
did in fact work as staff of the
defendant after his said
reinstatement, his contention
was that the Managing Director
did so without the Board’s
approval. We have seriously
considered the submissions made
by both parties in the appeal
and we do not think this case
has opened any new pages in the
law, which require a lengthy
discussion in this judgment. In
fact, the defendant has not been
able to demonstrate to our
satisfaction that the Court of
Appeal erred in reversing the
decision of the trial High
Court. We agree totally with the
Court of Appeal that plaintiff’s
claim that he was reinstated
after his interdiction in 2008,
is amply supported by the
evidence on record. Defendant
did not lead any evidence to
support its contention and the
finding by the trial court that
plaintiff’s reinstatement was
not sanctioned by the Board of
Directors of the defendant. The
Court of Appeal took pains to
digest the provisions of the
Companies
Act, 1963 [Act 179];
particularly sections 137 to 143
and section 193 and
we cannot
agree more with the expositions
made by the Court of Appeal and
the conclusions it arrived at
with regard to those provisions
and their application to the
case in point. We also do agree
with the Court of Appeal that
plaintiff actually retired
voluntarily from the employment
of the defendant, having duly
notified it in a letter to that
effect, which decision defendant
impliedly accepted or approved
of, judging from the steps
defendant took to broker
amicable retirement benefits for
plaintiff. With regard to the
sum of GHc327, 486.47,
which plaintiff said was the
total of his accumulated arrears
of salary and retirement
benefits/emoluments, defendant
did not challenge in any way
plaintiff’s testimony as to how
he arrived at this figure in
conformity with the conditions
of service of defendant’s senior
management personnel. Having
failed to challenge this figure
in positive terms, the law did
not require plaintiff to offer
any further proof. We therefore
endorse the Court of Appeal’s
finding that plaintiff was
entitled to this amount as the
sum total of his arrears of
salary after his reinstatement
and retirement benefits from the
date of his employment in 1999
to the date of his voluntary
retirement in December 2012. We
order that interest on this
amount in accordance with the
Court’s (Award of Interest and
Post Judgment Interest) Rules,
2005 [C.I. 52] be
calculated beginning 24th
December 2012 to date of
payment. We accordingly dismiss
the appeal.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:-
I agree with the conclusion and
reasoning of my brother Appau,
JSC.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my brother Appau,
JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the conclusion and
reasoning of my brother Appau,
JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the conclusion and
reasoning of my brother Appau,
JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
YAW D. OPPONG FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
O. K. OSAFO-BUABENG WITH
BENEDICTA ANTWI FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
|
