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Labour -
Contract of employment -
Industrial dispute - Unfair and
unlawful termination of their
employment – Non-compliance with
statute - Enforcement of orders
of the Labour Commission -
Whether or not the Labour
Commission can delegate its
quasi-judicial functions with
regard to the adjudication of
disputes to its committees,
standing or ad hoc. - Section
64 (1), Section 172 of the
Labour Act of 2003, (Act 651) –
HEADNOTES
The
Commission sent copies of the
petition to ‘Crocodile Matchets’
for their comments, after which
the parties were summoned to the
Commission for a hearing. Two
persons namely, Mr.
Danso-Acheampong the deputy or
vice-chairperson of the
Commission and Opanin Obeng Fosu
both representing the
Commission, sat to hear the
petition, after which they found
the termination of appointments
of the five employees to have
been unfair and wrongful and
made some consequential orders
against the Company. The Company
refused to comply with them thus
prompting the National Labour
Commission, acting under Section
172 of the Labor Act, 2003 (Act
651) to file an application
before the High Court, Tema, for
the Company to enforce its
orders, The High Court, granted
the application and proceeded to
order the Company to comply with
the orders made by the
Commission, whereupon the
Company appealed to the Court of
Appeal which set aside the
decision by the High Court. The
Commission was dissatisfied with
the judgment of the Court of
Appeal and appealed to this
court seeking an order for the
Company to comply with its
decision
HELD
Upon this
analysis of the relevant
provisions of the Act, the Court
of Appeal stated in its judgment
that “the quorum at a meeting of
members of the respondent
commission in the performance of
their judicial administrative
and other functions is as stated
in section 140 (3) of Act 651,
five persons representing
government, employers and
organized labour including
either the chairperson or deputy
chairperson of the respondent
commission.” I think the Court
of Appeal came to the right
conclusion and its conclusion
and reasoning are affirmed. The
first ground of appeal is
therefore dismissed.
The Court was
satisfied to hold that there was
no evidence any committee was
formed to deal with the
complaint. In the result it
abandoned its duty to determine
the salient issue of whether or
not the commission could
competently delegate its
judicial duty to any committee.
I think I have said enough to
show my disapproval of the stand
taken by the Court and that
under the relevant provisions of
the Act, the commission was
competent to delegate its
judicial functions to the
committee as it did. The
respondent appeared before the
committee, took part in the
proceedings without ever raising
any questions about its
formation. If the respondent had
any doubts about the formation
of the committee it should have
raised it timeously, that was
before, during or at the hearing
or on appeal to the highest
court as it was all a matter of
jurisdiction. As that was not
done a rebuttable presumption in
section 37 of the Evidence
Decree 1975, NRCD 323 would be
raised for: ‘Omnia praesumuntur
rite et solemniter esse acta’ ,
that was to say, all things are
presumed to be done in proper
and regularly with the due
formality until the contrary is
proved.
It follows
that the delegation in this case
to a committee of only 2 persons
is contrary to s.141 (a) and (b)
and therefore invalid. I could
not lay hands on the memorandum
accompanying the Bill leading to
the enactment of Act 651 but I
am convinced that the
interpretation that I have given
of it here should accord with
it.This holding removes the
platform upon which the other
contentions of the parties rest,
e.g. that there was no evidence
of the delegation, etc and
therefore need no consideration.
these reasons I do also dismiss
the appeal.
STATUTES
REFERRED TO IN JUDGMENT
Labour Act of
2003, Act 651
Evidence
Decree 1975
CASES
REFERRED TO IN JUDGMENT
Boateng v
Volta Aluminium Co. Ltd
[1984-86] 1GLR 733
Boyefio v
NTHC Properties Ltd. [1996-97]
SCGLR 531.
Barnard v The
National Dockworkers Labor Board
[1953] 2 QBD 18
Vine v
National Dock Labor Board [1957]
A.C. 488
Republic v.
Inspector-General of Police; Ex
parte Aniagyei II(1976)IGLR 394
R. V. Burnley
Justices (1916) 85 L.J.K.B.
1565, D.C.
Ellis v
Dubowski [1921] 3 K.B.
621
Customs and
Excise Comrs v Cure and Deeley
Ltd [1962] I QB 340, [1961]3 All
ER 641
R v Liverpool
City Council, ex p Professional
Association of Teachers (1984)
82 LGR 648)
Ratnagopal v
A-G [1970] AC 974, PC
Mungoni v A-G
of Northern Rhodesia [1960] I
All ER 446, PC
Metcalfe v.
Cox (1895) AC 328
Twum v.
Attorney-General & Akwetey
[2005-2006] SC GLR 732
Appiah-Ofori
v Attorney-General (2010)SC GLR
484
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England, Fourth,
Edition, Reissue30-31
DELIVERING
THE LEADING JUDGMENT
ANSAH, JSC;
COUNSEL
KWESI
DANSO-ACHEAMPONG FOR THE
APPELLANT.
OSAFO-BUABENG
FOR THE RESPONDENT.
J U D G M E N
T.
_____________________________________________________________________________________
ANSAH,
JSC;
This action
was commenced under the
Labour
Act of 2003, Act 651, when
on 18 August 2006, the National
Labour Commission filed a motion
for an order to compel Crocodile
Matchets Ghana Ltd. to comply
with its orders made on 20th
April 2006. The action was
founded on
section
172 of the Labour Act of 2003,
(Act 651)
The facts
which have ended in this appeal
and which are deduced from and
formed the case of the appellant
Commission were that one James
Agyemang Badu and five others,
who until 19-12-2005 were
employees of the Crocodile
Matchets Factory, complained to
the National Labour Commission
of unfair
and unlawful termination of
their employment. They
proceeded under
section
64 (1) of the Act. The
section read:
64
Remedies for unfair termination.
(1) A worker
who claims that the employment
of the worker has been unfairly
terminated by the workers
employer may present a complaint
to the Commission.”
The
Commission sent copies of the
petition to ‘Crocodile Matchets’
for their comments, after which
the parties were summoned to the
Commission for a hearing. Two
persons namely, Mr.
Danso-Acheampong the deputy or
vice-chairperson of the
Commission and Opanin Obeng Fosu
both representing the
Commission, sat to hear the
petition, after which they found
the termination of appointments
of the five employees to have
been unfair and wrongful and
made some consequential orders
against the Company. The Company
refused to comply with them thus
prompting the National Labor
Commission, acting under Section
172 of the Labor Act, 2003 (Act
651) to file an application
before the High Court, Tema, for
the Company to enforce its
orders. The said section
provided that:
“172.
Enforcement of orders of the
Commission.
Where a
person fails or refuses to
comply with a direction or an
order issued by the Commission
under this Act, the Commission
shall make an application to the
High Court for an order to
compel that person to comply
with the direction or order.”
The High
Court, Tema, coram Nana Gyamera
Tawia, granted the application
and proceeded to order the
Company to comply with the
orders made by the Commission,
whereupon the Company appealed
to the Court of Appeal which set
aside the decision by the High
Court
founded as it were on the
proceedings and decision of the
Commission on 9th
July 2009.
The
Commission was dissatisfied with
the judgment of the Court of
Appeal and appealed to this
court seeking an order for the
Company to comply with its
decision.
The National Labour Commission
is hereafter called the
appellant and Crocodile
Matchets, the respondent.
The grounds
of Appeal before us were that:
“1 The Court
of Appeal erred when it held
that a committee of two
Commissioners that determined
the petition brought against
Crocodile Matchets (GH) Ltd
under Section 141 (1) and (2) of
Act 651 could not have
represented the Appellant
Commission because the two did
not form a quorum of 5 as
mandated under Section 140 (3)
of Act 651.
2 That the
Court of Appeal erred when it
doubted the competency of the
Appellant to delegate its
judicial function
notwithstanding the express
provision for delegation under
Section 141 (2) of Act 651.
3 That the
Court of Appeal erred when it
held that even if the Appellant
could delegate its judicial
function, there was nothing in
the record showing that the
Appellant commission formed a
committee to determine the
petition against the Respondent.
4 The Court
of Appeal erred by holding that
the hearing proceedings which
was captioned minutes by the
recorder was of no legal effect
because it was neither signed
nor certified notwithstanding
the fact that the Respondent
never filed an affidavit in the
trial High Court to dispute the
content of the hearing
proceedings dated 10th
April 2006.”
In its
statement of case, the appellant
argued grounds 1 and 2 of appeal
together. These grounds
complained against firstly, the
conclusion by the Court of
Appeal that there was no proper
quorum for the Commission which
sat to perform its function and
secondly the competence of the
Commission to delegate its
functions.
An appeal
against a decision of the Court
of Appeal to this court is as is
well known, by way of a
rehearing both on the facts and
the law and this court is
obliged to thoroughly sift the
record to see whether or not the
facts and conclusions are well
supported by the evidence on
record and construction put on
documents are proper and
maintainable.
The second
ground of appeal deserves an
early treatment as it concerns
the jurisdiction of the
Committee to hear the petition.
The issue was about the
Appellant’s competence to
delegate its functions to the
committee which made the orders
sought to be enforced at the
High Court and which gave rise
to these proceedings.
The first
ground of appeal brought
Sections 140 (1) and (2) of Act
651 into focus.
I am of the
opinion that the first and
second grounds of appeal quoted
above call for a study of the
Labour Act, 1993, (Act 651)
(herein after called the Act).
The basic
principle in construing a
statute is that it shall be read
as a whole to discover its
meaning. Its provisions are to
be purposively construed to
discover their real meaning. In
Boateng v
Volta Aluminium Co. Ltd
[1984-86] 1GLR 733 at 738,
the Court of Appeal held that in
attempting to construe the
termination clauses in a
conditions of service, all the
clauses have to be looked at as
a whole and every clause must be
compared with each other in
order to discover the true
meaning and intention of the
parties to the
contract.
I am of the view that this
approach applies to construing a
statute like Act 651. Where
there are provisions in a
statute covering the same thing
as the quorum to settle an
industrial dispute in the
relevant sections of the Act,
they are in pari materia and as
such they are to be interpreted
in accordance with the rule that
they are to be taken together as
forming one system and
interpreting and enforcing each
other; see
Brefor v
The Republic [1980] GLR 679
per Taylor J (as he then was)
Therefore section 140 (3) and
144 (2) of the Act dealing with
the quorum ought to be read
together and interpreted in pari
materia with each interpreting
and reinforcing the other; they
are not in opposition to or
contradicting each other.
Section 135
of the Act established the
National Labor Commission
(hereinafter called the
Commission), whereas Section 138
of the Act assigned specific
functions to the commission. The
section was as follows:
“138
Functions and independence of
the Commission
(1) The
functions of the Commission are,
(a)
to
facilitate the settlement of
industrial disputes;
(b)
to
settle industrial dispute;
(c)
to
investigate labour related
complaints, in particular unfair
labor practices, and take such
steps as it considers necessary
to prevent labor disputes;
(d)
to
maintain a data base of
qualified persons to serve as
mediators and administrators
(e)
to
promote effective cooperation
between labor and management and
(f)
to
perform any other function
conferred on it under this Act
or any other enactment”
(emphasis supplied)
Section 140
(1) said specifically that:
“140 Meetings
of the Commission
(1)The
Commission shall meet to settle
industrial dispute, but shall
meet at least once in every two
months to consider matters
affecting its administration and
the performance of its
functions.
(3) The
quorum at a meeting of the
Commission shall consist of the
chairperson and four other
members of the Commission at
least one person each
representing Government,
employees’ organization, and
organized labour.”
‘Industrial
dispute’ was also defined in
clear terms in the
interpretation section of the
Act, (section 175), as follows:
“industrial
dispute” means a dispute between
an employee and one or more
workers or between workers and
workers which relates to the
terms and conditions of
employment, the physical
condition in which workers are
required to work, the employment
and non-employment or
termination or suspension or
termination or suspension of
employment of one or more
workers and the social and
economic interests, of the
workers but does not include a
matter concerning the
interpretation of this Act, a
collective agreement or a matter
which by agreement between the
parties to a collective
agreement or contract of
employment or contract of
employment does not give cause
for industrial action or lock
out.”
It is clear
under section 140 (3) (supra),
that the quorum for performing
the function of settling
industrial disputes under the
Act is five. There was no
provision made for when the
Commission sits to settle
disputes, but it was mandated to
sit bi-monthly to consider
administrative matters and how
it performs its functions.
It is
observed that where the
Legislature has in its wisdom
provided in mandatory terms the
numerical composition and
designation of persons to form a
quorum and also entrusted a
specific function to it, then
these provisions must
necessarily be honored in their
observance strictly in other to
give validity to whatever they
were alleged to have done;
furthermore any
non-compliance will have the
maximum debilitating effect on
what they did: see
Boyefio v
NTHC Properties Ltd. [1996-97]
SCGLR 531.
Another
provision of much relevance in
the statute was Section 141
which
provided
that:
“141
Committees of the Commission
(1) The
Commission may appoint
(a)
a
standing committee consisting of
members of the Commission, or,
(b)
an ad
hoc committee consisting of
non-members or both members and
non-members of the Commission,
as the
Commission considers necessary
for the efficient performance of
its functions.
(2) The
Commission shall assign to any
of its committees any of its
functions that it may
determine.”
Thus under
the Act, Committees may be
appointed to which the
Commission may assign or
delegate its functions to
perform in the interest of the
efficient performance of its
functions.
The
composition of the Commission
qua commission at a meeting to
settle an industrial dispute, as
stated above, is five (5).
“144
Regional and district committees
of the Commission
The
Commission has committees at the
Regional and District levels.
The composition of each of these
committees was also provided in
section 144 of the Act; thus
section 144 (1) and (2) provided
that:
(1) Despite
section 141, the Commission may
establish as it considers
necessary regional and district
labour committees.
“(2) The
composition of a regional or
district labor committee shall
be determined by the Commission
except that there shall be equal
representation of Government,
organized labor and employers’
organizations”.
Inferentially, the composition
(number) was tripartite and
equally represented; they
perform such functions in the
Region or district as are
assigned to it in writing by the
Commission, under Section 145.
The combined effect of sections
141 (1) and (2) is that the
commission has the power to
appoint standing or ad hoc
committees and assign any of its
functions to it. The commission
also has regional and district
labour committees and the power
to assign any of its functions
to them.
164.
Compulsory references to
arbitration.
Under the
Act, the mode of settlement of
industrial disputes was covered
by Sections 153 and 154 and is
by Negotiation and Mediation
respectively while Arbitration
as a mode was provided for by
sections 164 to 167 of the Act.
Section 160
(2) and 162 generally mentioned
that where an industrial dispute
has resulted in a strike and
lock out which was unresolved
within seven days after
commencement, then it shall have
to be resolved or settled by
compulsory arbitration under
section 164.
Reference to
compulsory arbitration was thus
consequent upon failure to
resolve an industrial dispute by
either negotiation or mediation.
A similar
provision was made for essential
services under Section 162.
The
composition of a compulsory
arbitration was provided for by
section 164 (3) thus:
“A compulsory
arbitration shall be composed of
three members of the
Commission, one member each
representing Government,
organized labor, and an
employers organization” By
necessary inference a panel for
compulsory arbitration comprised
three members of the Commission
specifically designated just
like a meeting of a regional or
district labor committee under
section 144 (2).
There was
nothing on the record to show in
the least that anything was
referred for a compulsory
arbitration or that Mr Kwasi
Danso Acheampong and Opanin
Obeng Fosu compulsorily
arbitrated on the petition
because the conditions precedent
for that contingency had arisen
or materialized.
The question
was when these two persons sat
to hear the industrial dispute
did it have the quorum to
transact business or to
discharge any function assigned
to it by the Commission if it
was ever so assigned to them?
The answer was emphatically in
the negative.
Reading the
Act as a whole nowhere was any
provision made to ordain or
sanction the composition of a
two-member committee to exercise
the functions for and on behalf
of the Commission.
The
provisions on the quorum
representing as it were the
Government, employers
organization, and organized
labor, need not be questioned,
for the policy rationale is not
far to see – to make sure that
all possible areas of
controversy are covered and all
interests or stakeholders
adequately represented so that
an eventual solution is accepted
as having been made by all but
not by a selected few; no one
side can complain it was
excluded. That in my considered
opinion is why when it came to
the functions the provisions of
sections 140 to 143 (supra)
apply to the Commission, a
regional or district labour
committees mutatis mutandi.
The
construction of provisions of an
Act like Act 651 enacted to
amend and consolidate the laws
relating to labour and
industrial relations and
establish a National Labor
Commission must be done
purposively as the labor front
is volatile and a veritable
powder keg; a tiny spark of
error in applying any of the
provisions is enough to explode
or implode the front, resulting
in an inferno.
The two-man
committee that sat to settle the
industrial dispute was like a
three or five legged object with
some legs missing; it is next to
an impossibility that it can
stand; it will certainly
collapse. The composition of the
two-man panel that sat to hear
the petition was not well
founded; it was not justified
either under Section 140 (3) of
the Act, it required a quorum of
the chairperson, and four (4)
other members of the Commission
to sit and hear the petition, or
any of the quorum specifically
provided for in the Act.
Upon this
analysis of the relevant
provisions of the Act, the Court
of Appeal stated in its judgment
that “the quorum at a meeting of
members of the respondent
commission in the performance of
their judicial administrative
and other functions is as stated
in section 140 (3) of Act 651,
five persons representing
government, employers and
organized labor including either
the chairperson or deputy
chairperson of the respondent
commission.” I think the Court
of Appeal came to the right
conclusion and its conclusion
and reasoning are affirmed. The
first ground of appeal is
therefore dismissed.
In
Barnard v
The National Dockworkers Labor
Board [1953] 2 QBD 18, some
registered Dock workers were
suspended after a strike action;
it was found that the power to
suspend dockers lay under the
statutory dock labour schemes
vested in the local Dock Labour
Board. The suspensions were
purported to have been made by
the port manager to whom the
board had purported to have
delegated its disciplinary
powers.
The dockers
succeeded in obtaining a
declaration that their purported
suspensions were invalid for the
reason that the Board had no
power to delegate its functions
and should have made the
decision itself.
In Barnard v
National Dock Labor Board [1953]
2 Q.B. 18, Denning LJ said at
that
judicial power cannot be
delegated and the board
cannot even ratify those acts;
it was administrative acts which
can be so delegated.
Similarly, in
Vine v
National Dock Labor Board [1957]
A.C. 488, where a registered
dock worker was dismissed the
House of Lords granted a
declaration that the dismissal
was invalid because the Board
instead of deciding itself had
entrusted the whole matter to a
disciplinary committee. The
House of Lords emphasized the
judicial nature of the nature of
the function that was to be
performed – to hear and
determine charges against the
worker and to decide whether or
not to deprive him of his
employment and livelihood. That
of course is judicial in nature.
In the
Barnard case (supra), Denning LJ
said at 40 that: “While an
administrative function can
often be delegated, a judicial
function rarely can be. No
judicial tribunal can delegate
its functions unless it is
enabled to do so expressly or by
necessary implication.”
These
decisions though not binding on
this court, nevertheless, are
persuasive that a body to which
powers are delegated to exercise
must keep within the scope
allotted to them by the enabling
legislation; if they do not do
so, whatever would come out of
their actions may be labeled
ultra vires.
In this case,
the appellant commission sat to
settle an industrial dispute
statutorily defined; in doing so
the appellant was clothed with
the powers of a High Court;
enforce the attendance of
witnesses, and examine them on
oath, affirmation or otherwise,
compelling the production of
documents, and in respect of its
proceedings enjoy the same
privileges and immunities
pertaining to proceedings in the
High Court: see the powers of
the commission under section 139
(1), (2) and (3) of the Act.
In exercising
these powers in settling
industrial disputes by any of
the modes of settlement
recognized by the Act, be it
negotiation, mediation or
compulsory arbitration, the
commission may receive
complaints from affected
workers, exercise the powers
entrusted to it by statute, take
viva voce evidence or documents,
make a determination one way or
the other, publish an award in
favor of the victorious party;
the commission will be
performing a judicial function.
In such
situations where a judicial
function has to be performed,
Parliament must be presumed not
to have contemplated delegation
or assignment of the power to
any other person or group of
persons.
But this is
not an inflexible rule and it
admits of exceptions. It lies
within the powers of Parliament
to allow the body entrusted with
the exercise of judicial power
to assign or delegate those
powers to be exercised by any
other body (other than the one
to which it has been created,
permitted or named to perform
it), judicial or otherwise.
But then,
where that is so Parliament must
confer the judicial power in
express and mandatory terms.
That must also be found or be
discernible within the four
corners of the enabling
statute.
In this case
the statute, (Act 651),
entrusted the judicial function
to the Commission itself in
Section 138 and also provided
for who to exercise or perform
it. Parliament in its wisdom
provided also that the
Commission may assign the
performance or exercise of the
functions to any of its
committees; more importantly,
the Act specified the quorum
needed to exercise the function.
As a general
rule, the courts are vigilant to
preventing the exercise of
judicial function(s) by any
person other than the person to
whom it is entrusted by
Parliament and further judicial
functions cannot be delegated.
///In this
case, the statute itself
entrusted the duty or function
of settling industrial disputes
to the Commission in Section 140
and prescribed the quorum needed
to settle them: see Section 140
(3) above.
Statute also
expressly stated that the
Commission may appoint a
Standing Committee and an ad hoc
committee for the efficient
discharge of its functions: see
section 141 (2) of the Act. The
statute did not classify the
functions to be assigned and
they presumably comprised
judicial and/or administrative
functions.
///Thus, the
Commission has the express
Statutory power to assign such
of its functions to a committee
as it may determine, standing or
ad hoc.
Therefore it
was wrong for the Court of
Appeal to hold that “there was
nothing to show that the
respondent-Commission formed a
committee of whatever nature or
scope to deal with the complaint
made against the appellant.” The
Court of Appeal did not think it
necessary to determine whether
the respondent Commission might
competently delegate its
judicial function or not.
The Court
was satisfied to hold that there
was no evidence any committee
was formed to deal with the
complaint. In the result it
abandoned its duty to determine
the salient issue of whether or
not the commission could
competently delegate its
judicial duty to any committee.
I think I have said enough to
show my disapproval of the stand
taken by the Court and that
under the relevant provisions of
the Act, the commission was
competent to delegate its
judicial functions to the
committee as it did. The
respondent appeared before the
committee, took part in the
proceedings without ever raising
any questions about its
formation. If the respondent had
any doubts about the formation
of the committee it should have
raised it timeously, that was
before, during or at the hearing
or on appeal to the highest
court as it was all a matter of
jurisdiction. As that was not
done a rebuttable presumption in
section 37 of the Evidence
Decree 1975, NRCD 323 would be
raised for: ‘Omnia praesumuntur
rite et solemniter esse acta’ ,
that was to say, all things are
presumed to be done in proper
and regularly with the due
formality until the contrary is
proved.
The crux of
this opinion is that it is
important to hold that where
statute had provided for the
quorum needed to perform a
function, a strict compliance
with the terms of the provision
was required. That was decisive
of the present appeal.
The fourth
ground of appeal does not merit
any lengthy consideration; it
has to be dismissed as counsel
for the appellant submitted that
the Court of Appeal did not make
any definitive pronouncement on
the issue that the minutes by
the recorder was of no legal
effect for it was not signed.
Counsel readily apologized for
inadvertently raising an issue
of that point.
At any rate
the criticism was wrongly made
for it was crystal clear from
the record that the minutes for
the hearing in the matter
between James Agyemang Badu,
Norbert Amediku and Phidelis
Kodzie and Crocodile Matchets
(GH) Ltd held on 10th
April 2006, was duly signed by
Kwasi Danso-Acheampong.
Whilst it is
felt ready to accept the
apology, this court also thinks
it was necessary to remark that
such inadvertence must be
avoided for it shows counsel did
not take his time to read and
digest the record as thoroughly
as was expected of a
practitioner in the highest
court of the land; such excuses
are limited, with the greatest
respect, to the practice in the
lower courts where they may be
tolerated.
The fourth
ground of appeal is dismissed.
For all the
foregoing, I agree with the
respected President Atuguba JSC
that the appeal is
dismissed.
[SGD] J. ANSAH
JUSTICE OF THE SUPREME COURT
ATUGUBA,
J.S.C:
The facts of
this case have been related by
my brother Ansah JSC and I will
not repeat them except where
necessary.
The two legal
issues arising are (1) whether
the 2 officers who determined
this matter could be delegated
by the Labour Commission so to
do and (2) whether the appellant
was adequately heard.
The Court of
Appeal held that this matter
ought to have been determined by
the full complement of the
quorum of the Labour Commission
under s.140(3) of the Labour
Act, 2003(Act 651).
This case
raises the question of
delegatus non potest delegare.
The principle, though notorious,
has not always been harmoniously
stated. In the celebrated case
of Vine v National Dock Labour
Board (1957) A.C. 488 H.L. most
of their lordships took the view
that the power to delegate
depends on the character of the
function to be discharged and
that judicial or quasi-judicial
functions as opposed to
administrative functions cannot
be delegated.
But
notwithstanding the hierarchical
and awesome status of the
English House of Lords (now
Supreme Court) it appears that
the maxim delegatus non
potest delegare is a general
one. Thus in
Republic
v. Inspector-General of Police;
Ex parte Aniagyei II(1976)IGLR
394 at 401 Taylor J stoutly
said:
“If I am to
give effect to the words used in
N.R.C.D. 236, it becomes clear
that if the Regional
Commissioner is satisfied that
his action is in the public
interest, the Regional
Commissioner may himself arrest
or order a member of the Armed
Forces to arrest any person who
is involved in any of the
matters in paragraphs (a) (b)
(c) or (d) of section 3(1) of
N.R.C.D. 236. Furthermore such
arrested person ought as a
mandatory provision to be
detained in military custody.
If this is the language of the
section, the detention of the
applicant must be tested against
it. The Regional Commissioner
ordered the police not a member
of the Armed Forces to effect
the arrest. This is clearly
contrary to the provision of
section 3(1) of N.R.C.D. 236 and
it follows that the arrest was
not done in accordance with the
Decree. To ask the police to
arrest the applicant in exercise
of the powers given to him under
section 3(1) of N.R.C.D. 236 is
in effect to delegate the
exercise of the power to
another. A close reading of
section 3(1) of N.R.C.D. 236
shows clearly that the
legislature did not intend to
authorise the Regional
Commissioner to delegate his
power of arrest to any other
person or authority. There is
in effect no power to pass on to
others: see
R. V.
Burnley Justices (1916) 85
L.J.K.B. 1565, D.C. and Ellis v
Dubowski [1921] 3 K.B. 621,
D.C. The purported delegation is
therefore incompetent and in my
view its exercise by the police
is unlawful, and the arrest was
consequently illegal.”
Similarly, in
Halsbury’s Laws of England,
Fourth, Edition, Reissue it
is stated at
30-31,
as follows:
“31.
Sub-delegation of power. In
accordance with the maxim
delegatus non postest delegare,
a statutory power must be
exercised only by the body or
officer on whom it has been
conferred, unless sub-delegation
of the power is authorised by
express words or necessary
implication. There is a strong
presumption against construing a
grant of legislative, judicial,
or disciplinary power as
impliedly authorising
sub-delegation; and the same may
be said of any power to the
exercise of which the designated
body should address its own
mind. Even where a power to
make decisions is exercisable
only by the delegate itself,
however, considerations of
practical convenience may
justify entrusting powers to a
committee or officers to conduct
an investigation and to make
recommendations as to the
decisions to be taken.
A civil
servant is his minister’s alter
ego, and a decision taken by a
civil servant in the name of the
minister or the department is
not open to objection as a form
of unauthorised sub-delegation,
provided at least that the
servant has actual or implied
authority so to act. The courts
will not seek to distinguish
between those matters which are
and those which are not so
important as to demand the
minister’s personal attention.
The powers of other public
bodies are, in general,
exercisable by their servants or
agents. Local authority
functions may be delegated
either to officers or to
committees or sub-committees of
the authority.
In general a
delegation of power does not
imply a parting with authority.
The delegating body will retain
not only power to revoke the
grant, but also power to act
concurrently on matters within
the area of delegated authority
except in so far as it may
already have become bound by an
act of its delegate. It would
appear that an invalid act of
the delegate encroaching on
individual rights cannot be
validated with retrospective
effect by ratification.”
The footnote
(2) as to the exercise of a
power to delegate is also useful
and I set it out as follows:
“ x
x x
The
sub-delegation must be in the
prescribed manner and form (cf
Customs
and Excise Comrs v Cure and
Deeley Ltd [1962] I QB 340,
[1961]3 All ER 641), and
there must have been a formal
delegation of the power to the
person or body which purports to
exercise it (see eg
R v
Liverpool City Council, ex p
Professional Association of
Teachers (1984) 82 LGR 648).
The primary delegate must not
purport to vest in the
sub-delegate powers properly
exercisable only by himself:
Ratnagopal v A-G [1970] AC 974,
PC. Authority to delegate
powers does not imply authority
to delegate duties unless the
two are inseparably
interconnected:
Mungoni v
A-G of Northern Rhodesia [1960]
I All ER 446, PC.”
I must not be
taken, however as endorsing
hook, line and sinker all that
this edition of Halsbury’s Laws
of England has stated on this
subject. It is notorious that
judges often overrule the law as
it is stated by text writers.
Nonetheless the thrust of the
legal position as therein
stated, namely that the question
whether a statutory power can be
delegated depends on the
provisions of the statute,
bearing in mind a presumption
against the delegation of
certain particular powers,
inclusive of judicial powers or
functions, appears acceptable.
In this case
does the Labour Act, 2003 (Act
651) authorise delegation of
judicial or quasi-judicial
functions? The appellant
contends that it does not. To
my mind the answer to this
question depends on sections 135
– 141 of the Act. As far as
relevant, they are as follows:
“135. Establishment of
Commission
There is
established by this Act a
National Labour Commission.
136.
Composition of the Commission
(1) The
Commission consists of:
(a) the
chairperson who shall be
nominated by the employers’
organisation and organised
labour except that where there
is failure to nominated to
chairperson within sixty days as
provided, the employers’
organisation in consultation
with organised labour shall
submit the matter to a mediator
agreed on by them, and
(b) six
representatives, two each
nominated by the Government,
employers organisation and
organised labour.
(2) The
chairperson and the other
members of the Commission shall
be appointed by the President
acting in consultation with the
Council of State.
137.
Qualifications of chairperson
and other members of the
Commission
A person is
qualified to be appointed a
member of the Commission if that
person
(a)
does not hold office in a
political party, and
(b)
has knowledge and expertise in
labour relations and management,
except that in the case of the
chairperson, that person is also
knowledgeable in industrial law.
138.
Functions and independence of
the Commission
(1)
The functions of the Commission
are,
(a)
to facilitate the settlement of
industrial disputes
(b)
to settle industrial disputes;
(c)
to investigate labour related
complaints, in particular unfair
labour practices, and take such
steps as it considers necessary
to prevent labour disputes;
(d)
to maintain a data base of
qualified persons to serve as
mediators and arbitrators;
(e)
to promote effective labour
co-operation between labour and
management; and
(f)
to perform any other function
conferred on it under this Act
or any other enactment.
(2)
In the exercise of its
adjudicating and dispute
settlement function,
the Commission is not subject to
the control of any person or
authority.
x x x
140
Meetings of the Commission
(1) The
Commission shall meet to settle
industrial disputes, but shall
meet at least
once in every two months to
consider matters affecting its
administration and the
performance of its functions.
(2) The
Commission shall at its first
meeting nominate one of its
members as deputy chairperson.
(3) The
quorum at a meeting of the
Commission shall consist of the
chairperson
or, in the absence of the
chairperson, the deputy
chairperson and four other
members of the Commission at
least one person each
representing Government,
employers’ organisation and
organised Labour.
(4) The
Commission may co-opt a person
to attend meetings of the
Commission as an adviser or a
consultant.
(5) A
person co-opted to attend a
meeting of the Commission does
not have the right to vote on a
matter for determination or
decision by the Commission.
(6) The
Commission may permit to be in
attendance at its meetings any
other persons that the
Commission may determine.
(7)
Subject to subsection (2), the
Commission shall regulate its
own proceedings.
141.
Committees of the Commission
(1) The
Commission may appoint
(a) a
standing committee consisting of
members of the Commission, or
(b) an
ad hoc committee consisting of
non-members or both members and
non-members of the Commission.
as the Commission considers
necessary for the efficient
performance of its functions.
(2) The
Commission shall assign to any
of its committees any of its
functions that it may determine.
x x x
144. Regional and district
committees of the Commission
(1)
Despite section 141, the
Commission may establish as it
considers necessary, regional
and district labour committees.
(2) The
composition of a regional or
district labour committee shall
be determined by the Commission
except that there shall be equal
representation of Government,
organised labour and employers’
organisations.
(3) The
members of a regional or
district labour committee shall
be persons with knowledge in
industrial relations.
(4) A
regional or district labour
committee shall elect from among
its membership, a chairperson
and a deputy chairperson.
145. Functions of a
regional or district labour
committee
A regional or
district labour committee shall
perform in the respective Region
or district any of the functions
of the Commission assigned to it
in writing by the Commission.
146. Meetings of a
regional or district labour
committee
The
provisions under sections 140 to
143 in respect of the Commission
shall apply with the
modifications that are necessary
to the regional and district
labour committees provided for
under this Act.”
The problem
areas of these provisions are
said to center around sections
136 (1), 140(1), (3) and 141,
supra. It is particularly aid
that s.140(1) and (3) are
decisive as to who is competent
to determine a labour dispute.
That contention involves a
wastage of s.141, which the
rules of construction of
statutes disallow. It is quite
clear that s.141 is a
qualification or proviso to
s.140. Accordingly the question
is
whether the Labour Commission
can delegate its quasi-judicial
functions with regard to the
adjudication of disputes to its
committees, standing or ad hoc.
There is no doubt that the
answer must be in the
affirmative.
The power of
delegation under s.141(2) is in
terms of the ability of the
commission to “assign to any of
its committees such of its
functions as it may determine”
Under s.
138(1) those functions of the
Commission include “(a) to
facilitate the settlement of
industrial disputes; (b) to
settle industrial disputes;”
Thus there is statutory
authority to delegate those
functions including the
quasi-judicial functions covered
by s. 138 1(a) and (b)
aforesaid. If this were not so
it would be impossible to
understand how the Regional and
District Committees of the
Commission can exercise any of
these functions conferred on
them by practically the same
phraseology under s. 145 which
provides as follows:
“Functions
of a Regional or District Labour
Committee
145. A
Regional or District Labour
Committee shall perform in the
respective region or district
such of the functions of the
Commission as shall be assigned
to it in writing by the
Commission.”
The real
question is whether such
delegation can be made to two
persons.
In Vine v.
National Dock Labour Board,
supra at 506 Lord Cohen said:
“I would add
that the constitution of the
local board which was so devised
as to secure equal
representation for employer and
employed seems to support the
view that the power conferred by
clause 16 cannot be delegated.
For if delegation were
permissible there is nothing to
control the selection of the
persons to whom the power is to
be delegated.”(e.s)
In other
words the power to delegate is a
free rein. However the context
of Act 651 herein is different.
Lord Cohen
did not address in any explicit
terms, the question of the
numerical strength of a
delegated committee. However
in the context of Act 651 the
problem as to the balance in the
type of personnel and the number
thereof has been inferentially
addressed. Section 144(2)
requires in respect of a
regional or district labour
commission, at all cost, “equal
representation of Government,
organised labour and employers’
organisation” and as by reason
of s.146 the provisions of
sections 140 to 143 apply
mutatis mutandis to regional
and district labour committees,
a quorum of any of them must, in
that manner, comply with
s.140(3) which provides as
follows:
“140
(3) The quorum at a
meeting of the Commission shall
consist of the chairperson or in
the absence of the chairperson
the deputy chairperson and four
other members of the Commission
at least one person each
representing Government,
employers’ organisation and
organised Labour.”
Again
s.164(3) preserves both the
numerical strength and balanced
composition of membership of a
compulsory arbitration body as
follows:
“164. (3) A
compulsory arbitration shall be
composed of three members of the
Commission, one member each
representing Government,
organized labour and employers’
organiszation.”(e.s)
Clearly then
it will be quite absurd and out
of tune with the purpose, design
and structure of Act 651 to hold
that any committee envisaged
under s.141(a) and (b) can be
an erratic one and can fall
short of three persons, each
representing Government,
organised labour and employers’
organisation; the only
difference in respect of
s.141(b) is that such persons
need not be members of the
National Labour Commission.
Thus in
Metcalfe v. Cox (1895) AC 328
at 344-345 H.L Lord Watson
said in relation to powers of
university affiliation conferred
on Commissioners but with
special mention and some
variation respecting two
particular universities:
“It appears
to me that, not only the terms
of sect. 16, but the whole
context of the statute, so far
as it may have a bearing on that
clause, tend to the inference
that so important a change in
the constitution of the
university, necessarily
affecting the status and
interests of many members of the
university, and, it may be, of
the college also, whose
collective or individual
interests were not represented
by the University Council, or by
the council of the college, was
not meant to be effected, unless
by an ordinance which was not to
become operative until approved
by Her Majesty, after those
members had full opportunity of
submitting their objections to
the Commissioners, to
Parliament, and to the Queen in
Council.
Sects. 15 and
16 are, in my opinion, cognate
clauses, and they are classed
together under the statutory
title, “Extension of
Universities.” Sect. 15
provides that the Commissioners
may, if they think fit, “make
ordinances to extend any of the
universities by affiliating new
colleges to them,” subject to
certain conditions specified in
five sub-sections, which it is
unnecessary to notice in
detail. The powers conferred by
the clause are limited to
affiliation, which, as
interpreted by sect. 3, means
nothing more than the
establishment of such a
connection between the
university and the college as
will not interfere with the
separate and independent
constitution of either body, and
does not include their
incorporation so as to make them
form one body.
The
provisions of sect. 16 are not
general; they apply to one
university and one college
only. They empower the
Commissioners, in dealing with
the University of St. Andrews
and the University College of
Dundee, to go beyond
affiliation, and to make the
college “form part of the said
university.” The clause is not
a wholly independent enactment,
but is connected with sect.15 by
its introductory words, which
appear to me to have a material
bearing upon the present
question. It commences thus:
“Without prejudice to any of the
powers hereinbefore conferred,
the Commissioners shall, with
respect to the University of St.
Andres and the University
College of Dundee, have power”:
then follows an enumeration of
the specific things which the
Commissioners are authorized to
do for the purpose of
incorporating the college with
the university. It is clear
that the powers thus conferred
were meant, not to supersede,
but to be supplementary to, the
powers already given to the
Commissioners of dealing with
the university and college under
sect. 15. In my opinion the
introductory reference to “the
powers hereinbefore conferred”
has exclusive relation to those
changes in the university system
which, by sect. 15, the
Commissioners are authorized to
make, and does not extend to the
manner in which those changes
are to be accomplished. If that
be so, it necessarily follows
that the machinery provided for
carrying into effect the powers
added by sect. 16 must be the
same with that provided in sect.
15.”
In this case
the connection of s.141(1) (a)
and (b) with sections 140(3),
144(2), 146 and 164(3) is
obvious since the emphasis of
those provisions on a balanced
representation of Government,
organised labour and employers’
organisations and knowledge in
industrial relations is so
consistent that s.141(1)(a) and
(b) cannot be free from the
spirit of those other
provisions. Especially it
should be noted that the
Regional and district branches
of the Commission are also
committees of the Commission
just like those under s.141(1)
(a) and (b) and the expression
“Despite section 141” in
s.144(1) is only for the
avoidance of doubt as to the
power of the National Labour
Commission to establish such
committees to operate at
particular Regional and District
levels and not that they should
constitutively be radically
different from those under
s.141(1)(a) and (b). If there
be any casus omissus
regarding the intendment of the
Legislature as to the character
of the committees in s.141(1)(a)
and (b) I would on the authority
of Agyei
Twum v. Attorney-General &
Akwetey [2005-2006] SC GLR 732
and Appiah-Ofori v
Attorney-General (2010)SC GLR
484 hold that this is a fit
and proper case to fill it in
the terms I have indicated,
supra. Otherwise it would be
most illogical that the
committees in s.140(1)(a) and
(b) and 144 of one and the same
National Labour Commission and
designed to perform the same
functions should not be governed
by the same statutory spirit,
admired by the English House of
Lords in the Vine v. National
Dock Labour Board, with regard
to balanced employer and
employee representation (with
governmental addition in the
Ghanaian context). It would
certainly be strange that a
Regional or District level
committee or a compulsory
arbitration body should be
better composed than their
counterparts at the national
level.
However,
looking at the statutory
framework of Act 651 it should
be clear that as one descends
from the full complement of the
National Labour Commission to a
quorum thereof and then to
committee level, there is
entailed a condensation or
shrinking of numerical dynamics
and therefore a body of at least
3 persons reflective of
Government, organised labour and
employers’ organisations will
satisfy both sections 141(1)(a)
and (b) as well as 146. This is
the significance also of the
words “shall apply with the
modifications that are
necessary” with regard to
sections 140 to 143 in s.146.
The inclusion of s.141(1)(a) and
(b) in sections 140-143 which
are applied by s.146 to the
Regional and District committees
shows that they are all to share
essentially of the same
character with regard to their
composition and functioning.
It follows
that the delegation in this case
to a committee of only 2 persons
is contrary to s.141 (a) and (b)
and therefore invalid. I could
not lay hands on the memorandum
accompanying the Bill leading to
the enactment of Act 651 but I
am convinced that the
interpretation that I have given
of it here should accord with
it.
This holding
removes the platform upon which
the other contentions of the
parties rest, e.g. that there
was no evidence of the
delegation, etc and therefore
need no consideration.
For these
reasons I do also dismiss the
appeal.
[SGD] W. A. ATUGUBA
[JUSTICE OF THE SUPREME
COURT]
GBADEGBE, J.S.C.;
I have had
the advantage of reading the
judgments circulated in draft by
my brethren. Atuguba JSC,
(Presiding) and Ansah JSC and I
am in agreement with the
decision about to be delivered
in open court.
[SGD]
N. S. GBADEGBE
[JUSTICE OF
THE SUPREME COURT}
[SGD] R. C. OWUSU [MS.]
JUSTICE
OF THE SUPREME
COURT
[SGD] V. AKOTO-BAMFO [MRS]
JUSTICE OF THE SUPREME COURT
COUNSEL;
KWESI
DANSO-ACHEAMPONG FOR THE
APPELLANT.
OSAFO-BUABENG
FOR THE RESPONDENT.
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