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Employment
- Wrongfully dismissal - Damages
- Whether
the variation of the
judgment of the trial court to
the disadvantage of plaintiff
was unfair since it was
defendant who deliberately
delayed the trial -
Whether or not plaintiff did not
mitigate his losses by finding
an alternative means of
employment - Whether or
not the courts would
award damages that are remote to
the breach.
HEADNOTES
The facts in brief are that the
Appellant was an employee of the
Respondent for a period of
thirteen (13) years. He was
employed somewhere in 1986. On
the 6th day of April
1999, the Respondent summarily
dismissed him from its
employment. Appellant took the
matter up in the High Court for
a declaration that his dismissal
was wrongful and for damages for
wrongful dismissal. He succeeded
in the High Court with the
following awards made in his
favour, The Respondent appealed
against the decision of the
trial High Court on seven
grounds. However, in its written
submissions, Respondent
abandoned all the grounds of
appeal with the exception of
ground (f) on damages. The
ground read: “The Damages
awarded by the learned trial
judge was unduly excessive”
HELD
We find reasonable the award to
Appellant by the Court of Appeal
his salary and allowances for a
period of fifteen months,
beginning from the date of his
dismissal; The Court of Appeal
also ordered that Appellant’s
SSNIT contributions and
Provident Fund for fifteen
months his SSNIT contributions
for the fifteen months following
his dismissal must be deducted
and paid to SSNIT as his
contributions towards his
retirement benefits, which he
could access after the
attainment of sixty (60) years.
Aside from this, we are of the
view that it was not fair for
the Court of Appeal to limit the
payment of other entitlements to
the provident fund alone the
affected worker is to receive
his entitlements under the
contract of employment due or
earned but unpaid by the
employer These would include
leave allowance, bonus, long
service awards and all other
benefits the worker enjoyed
during his tenure of employment.
So long as the trial judge
exercised his discretion within
the law in arriving at the 3
months’ salary in lieu of
notice, that decision should not
have been disturbed. The payment
of three months’ salary in lieu
of notice as ordered by the
trial High Court is hereby
restored. Taking into
consideration the instability of
the cedi and the erosion of its
real value over time, it is not
out of place to order the
Respondent to pay interest on
the fifteen months accrued
salaries and allowances from the
date of the High Court Judgment
The award of interest by the
trial High Court is hereby
restored but varied as above.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
STANDARD CHARTERED BANK LTD v
NELSON [1998-99] SCGLR 810.
Zik’s Press Ltd vrs Ikoku [1951]
13 WACA.
TUAKWA v BOSOM [2001-2002] SCGLR
65.
KLAH v PHOENIX INSURANCE LTD
[2012] 2 SCGLR 1139
HARDLEY v BAXENDALE [1854] 9 EX
341
ARKORFUL v STATE FISHING
CORPORATION [1991] 2 GLR 348.
NARKO v BANK OF GHANA [1973] 1
GLR 70;
BLAY-MORKEH v GHANA AIRWAYS
CORP. [1972] 2 GLR 254
OWUSU-AFRIYIE v STATE HOTELS
CORPORATION [1976] 1 GLR 247
BOOKS REFERRED TO IN
JUDGMENT
DELIVERING THE LEADING JUDGMENT
YAW APPAU, JSC:
COUNSEL
WILLIAM ORLEANS ODURO ESQ.FOR
THE PLAINTIFF/ RESPONDENT/
APPELLANT
JACOB ARYEE ESQ, FOR THE 1ST
DEFENDANT/APPELLANT/RESPONDENT
------------------------------------------------------------------------------------------------------------------------
JUDGMENT
-------------------------------------------------------------------------------------------------------------------------
YAW APPAU,
JSC:
The
bone of contention in this
appeal is basically on damages.
How much is the Appellant
entitled to as damages for
having been wrongfully dismissed
from his employment? The trial
High Court made an assessment
which was varied by the Court of
Appeal on appeal by the
Respondent. The Appellant is
here praying for a further
intervention from us and the
relief sought in his notice of
appeal, filed on 24/04/2013, is
as follows:
“To vary the judgment or
decision of the Court of Appeal
dated 25/01/2013 to reflect the
current and prevailing salary
and allowances of similar
employees of
defendant/appellant/respondent
in the light of the deliberate
delay strategy of
defendant/appellant/respondent
to have the suit travel for more
than ten (10) years in the High
Court and about 2 years 6 months
in the Court of Appeal”.
The facts in brief are that the
Appellant was an employee of the
Respondent for a period of
thirteen (13) years. He was
employed somewhere in 1986. On
the 6th day of April
1999, the Respondent summarily
dismissed him from its
employment. Appellant took the
matter up in the High Court for
a declaration that his dismissal
was wrongful and for damages for
wrongful dismissal. He succeeded
in the High Court with the
following awards made in his
favour:
(a)
Loss of salary and
allowances calculated from the
date of his dismissal which took
effect from 6th April
1999 including his lunch
allowances, fuel and kids
allowances;
(b)
Payment of three
month’s salary in lieu of proper
notice;
(c)
All plaintiff’s end
of service benefits calculated
from the date of his dismissal;
(d)
SSNIT arrears and
provident fund of which he is a
contributor;
(e)
GHc30,000.00 for
prospective loss of promotion or
loss of employment;
(f)
Interest on all the amounts
above at the prevailing bank
rate from the date of dismissal
to date of judgment;
(g)
Costs of GHc5,000.00.
The Respondent appealed against
the decision of the trial High
Court on seven grounds. However,
in its written submissions,
Respondent abandoned all the
grounds of appeal with the
exception of ground (f)
on damages. The ground read:
“The Damages awarded by the
learned trial judge was unduly
excessive”
The Court of Appeal on 25th
January 2013 allowed the appeal
and varied the award made in
favour of the Appellant by the
trial High Court, with reference
to the decision of this Court in
STANDARD CHARTERED BANK LTD v
NELSON [1998-99] SCGLR 810. The
Court of Appeal in arriving at
the varied awards spoke in the
following words:
“In the instant case,
it is unfortunate that although
the trial judge appreciated the
principles that should govern
the award of damages in such a
case, i.e. that the plaintiff is
duty bound to mitigate his loss,
nevertheless allowed himself to
be swayed by extraneous matters.
For example, the judge took into
consideration the number of
children that the plaintiff had
and the criminal charges which
were preferred against him
culminating in a trial which was
struck out for want of
prosecution when there was no
claim for damages for wrongful
prosecution. The trial judge had
the discretion as to the
estimate of the damages but
which discretion must be
exercised judicially. Clearly,
the award of damages in the
instant case is extremely high.
Thus in Standard Charted Bank
vrs Nelson [1998-99] SCGLR 810,
the Supreme Court cited with
approval the reasoning and
decision in Zik’s Press Ltd vrs
Ikoku [1951] 13 WACA. Especially
relevant is the portion at page
823 of the report which quotes
Greer LJ in FLINT vrs LOVELL as
follows: ‘in order to justify
reversing the trial judge on the
question of the amount of
damages it will generally be
necessary that this court should
be convinced (either) that the
judge acted upon some wrong
principle of law or that the
amount awarded was so extremely
high or so very small as to make
it, in the judgment of this
Court an entirely erroneous
estimate of the damage to which
the plaintiff is entitled. ’Under
the circumstances, I deem it
proper that this Court
interferes with the damages by
varying same as follows:
(1) the plaintiff be
entitled to his salary and
allowances for fifteen (15)
months from 6th April
1999 when he was summarily
dismissed.
(2) his contribution
for SSNIT and provident fund for
fifteen (15) months from 6th
April 1999 including any
outstanding arrears.
(3) one month salary
in lieu of notice instead of
three (3) months’ salary awarded
by the trial court to the
plaintiff.
I would however
maintain the cost of GHc5,000.00
awarded in favour of the
plaintiff by the trial court.
The award of
GHc30,000.00 for prospective
loss of employment is set aside
as the plaintiff has been
adequately awarded for 15 months
entitlements etc. and also the
fact that no evidence was led to
prove that he lost an equal
opportunity employment as a
result of his dismissal…”
The Court of Appeal was of the
view that the assessment was
based on extraneous matters that
are too remote, making the final
award too high or excessive.
This was what the trial judge
said in arriving at the heads of
damages awarded:
“Although the
plaintiff seemed not to mitigate
his loss, there is no doubt that
he should be given reasonable
and substantial damages for his
sufferings for the past 11 years
or so. I hereby make the
following orders taking into
consideration the fact that the
plaintiff has four children as
per his evidence. Plaintiff is
entitled to the following: - ……”
From the above, it is quite
clear that the trial judge was
influenced by the fact that
Appellant had four children in
deciding on how much to award as
damages for wrongful dismissal
when the number of children a
worker has, has nothing to do
with the computation of what he
is legitimately entitled to as
damages when found to have been
wrongfully dismissed.
The grounds of appeal Appellant
relied on in the appeal before
us were:
a.
The judgment is against the
weight of evidence;
b.
The variation of the judgment of
the trial court to the
disadvantage of plaintiff was
unfair since it was defendant
who deliberately delayed the
trial ;
c.
The Court of Appeal erred when
it said plaintiff did not
mitigate his losses by finding
an alternative means of
employment when plaintiff was
emphatic in his evidence that he
was a trader.
Submissions on
grounds of appeal; (a), (b) and
(c)
On the first ground; i.e. (a),
Appellant’s concern was that the
Court of Appeal did not analyse
the entire record of appeal in
arriving at the damages it
awarded after varying that of
the trial High Court. For this
reason, the judgment of the
Court of Appeal was against the
weight of evidence adduced at
the trial; citing the case of
TUAKWA v BOSOM [2001-2002] SCGLR
65.
Instances Appellant gave as
factors that influenced the
trial court’s award but which
the Court of Appeal ignored
were; his arrest and failed
prosecution at the instance of
the Respondent, the failure of
the Respondent to attend court
regularly and unnecessary
applications for trial de novo
and stay of execution which
delayed the trial for eleven
years.
As the Respondent rightly
answered in its written
submissions, the appeal before
us does not call for such a
ground since the Court of Appeal
did not wade into the findings
of fact made by the trial court.
The Court of Appeal did not vary
the judgment of the trial High
Court which said that the
dismissal of the Appellant was
wrongful. This was because the
Respondent abandoned its grounds
of appeal against the judgment
and only challenged the award of
damages. The Court of Appeal
only dealt with the issue of
quantum of damages to be
awarded, which is a question of
law and did not arrive at any
judgment different from that of
the trial High Court on the
substantive claim.
Again, it was wrong for the
trial High Court to take into
consideration the family size of
the Appellant and the fact of
his arrest and failed
prosecution in enhancing the
damages awarded him for wrongful
dismissal. As the Court of
Appeal rightly asserted, if the
Appellant thought his arrest and
prosecution was wrongful, he
should have sued for or asked
for a separate relief of damages
for malicious prosecution which
is a tort that stands on its
own. One can only earn damages
on this tort if one establishes
that one’s prosecution was
malicious. Malicious prosecution
was not a claim before the trial
court and the mere fact that
Appellant’s prosecution was
truncated midstream is no proof
that it was malicious. Ground
(a) is therefore of no
substance. It is accordingly
dismissed.
Appellant’s arguments in support
of ground (b) which he
marked as ground (c)
follow the same pattern as in
ground (a). The gravamen
of that argument was that while
the trial High Court took into
consideration his arrest,
harassment and failed
prosecution by the Respondent
plus the delay caused by the
Respondent in the completion of
the trial in arriving at the
damages awarded in his favour,
the Court of Appeal ignored all
these and reduced the damages
earned in the trial court.
It must be emphasized that a
claim for damages for wrongful
dismissal is a relief that falls
basically under contract of
employment. It is not a tort. As
this Court rightly held in KLAH
v PHOENIX INSURANCE LTD [2012] 2
SCGLR 1139; “Where an
employer wrongfully dismisses an
employee…, the measure of
damages is calculated largely on
the basis of the principles
applicable to action for breach
of contract as enunciated in
HARDLEY v BAXENDALE [1854] 9 EX
341 @ 354-355;
‘where two parties have made a
contract which one of them has
broken, the damages which the
other party ought to receive in
respect of such breach of
contract should be such as may
fairly and reasonably be
considered as either arising
naturally, i.e. in the usual
course of things from such
breach of contract itself, or
such as may reasonably be
supposed to have been in the
contemplation of both parties at
the time they made the contract,
as the probable result of the
breach of it’.
The principle is to
place the injured party as far
as money could do so in the
position he would have been but
for the breach”.
This is the principle known by
the Latin maxim; restitutio
in integrum. The purpose of
damages in law is to put the
party who has suffered as a
result of the breach in nearly
the same position that he would
have been had the other party
not broken the contract. In
assessing damages for breach of
contract therefore, the court
considers two main factors:
(i) the measure of damages;
i.e. the quantum or the amount
of money or lump sum that must
be awarded and (ii)
remoteness of damages; i.e. the
proximate cause of the breach.
By remoteness is meant; the
courts would not award damages
that are remote to the breach.
The number of children Appellant
had at the time of his dismissal
has nothing to do with his
earnings. Again, the fact that
he was arrested but could not be
prosecuted to finality also has
nothing to do with his loss of
earnings arising from the
breach; i.e. his wrongful
dismissal. That is a tort
standing on its own, as
explained earlier. These two
issues are therefore too remote
to be factored into the
computation of damages for
Respondent’s breach of the
contract it had with the
Appellant.
On the alleged delay by the
Respondent in the early
prosecution of the civil action,
we wish to stress that every
court of law is supposed to be
managed by the presiding judge
or magistrate. Parties and their
lawyers do not control the
courts. It has not been
established that the delay in
the trial High Court and the
Court of Appeal was attributed
to the delay tactics of the
Respondent for which damages
against it must be enhanced out
of proportion. The record
before us shows clearly that
this case passed through the
hands of about seven (7) trial
judges before completion as a
result of frequent transfers of
the judges by the authorities of
the Service. This could have
contributed immensely to the
delay in the trial and the
Respondent cannot be blamed for
that.
It is the duty of every judge or
magistrate to manage his/her
court to ensure speedy trial
and/or disposal of cases. If a
trial is delayed because of the
ineffective management of the
court by the trial judge, it
cannot be blamed on one party.
If a party is fond of absenting
himself, herself or itself from
court and the trial judge
condones such practice without
applying the rules of court as
required, the absenting party
cannot be blamed for the delay.
A court cannot therefore enhance
what is legitimately due to a
party on the principle of
restitutio in integrum just
because the trial was delayed
due to the trial courts inertia
in properly applying the rules
of court. In this case for
instance, the trial court
awarded costs in favour of the
Appellant on several of the
occasions when Respondent
absented itself from court, to
compensate the Appellant.
Looking at some of the awards
made by the trial court, it
appears that the trial court was
not specific on what the
Appellant was actually entitled
to. On the first award, the
trial court granted Appellant
loss of salary and allowances
calculated from the date of his
dismissal (i.e. 6th
April 1999) including his lunch,
fuel and kids allowances. In the
first place, throughout his
evidence, Appellant never said
anywhere that he was enjoying
lunch, kids and fuel allowances
when he was a junior staff in
the employment of the Respondent
Bank for the court to make such
an award.
Again, the trial court did not
indicate a terminating point for
the calculation of his salary
and allowances. This means that
Appellant was to be paid all his
salaries and allowances from the
date of his dismissal to the
date of the trial court’s
judgment; i.e. from 6th
April 1999 to 6th May
2010; a period of eleven (11)
years. It appears the trial
judge was overwhelmed by the
decision of the High Court per
Osei-Hwere, JA (sitting as an
Additional High Court Judge) in
ARKORFUL v STATE FISHING
CORPORATION [1991] 2 GLR 348. In
fact, almost all the awards the
trial court made were influenced
by Osei-Hwere’s decision in the
said case.
In deciding to award Appellant
all his salaries calculated from
the date of his interdiction to
the date of judgment, the trial
judge in the Arkorful case
(supra) said he was relying on
decided authorities and
mentioned the cases of NARKO v
BANK OF GHANA [1973] 1 GLR 70;
BLAY-MORKEH v GHANA AIRWAYS
CORP. [1972] 2 GLR 254 and
OWUSU-AFRIYIE v STATE HOTELS
CORPORATION [1976] 1 GLR 247.
This was what the judge said in
his judgment before making the
award in the Arkorful case
(supra):
“Our decided
authorities are all at one that
where a servant has been
wrongfully dismissed from his
contract of employment damages
are to be measured by the amount
of salary which the servant has
been prevented from earning by
reason of the wrongful
dismissal; see Narko v Bank of
Ghana [1973] 1 GLR 70;
Blay-Morkeh v Ghana Airways
Corporation [1972] 2 GLR 254 and
Owusu-Afriyie v State Hotels
Corporation [1976] 1 GLR 247.
Accordingly the plaintiff must
be entitled to all his salaries
thrown away, calculated from the
date of his interdiction up to
the date of judgment”.
It must be noted that the
decision of the High Court in
the Narko case cited
(supra) was set aside by the
Court of Appeal on 9th
July 1973 in BANK OF GHANA v
NARKO & Another [1973] 2 GLR
265. I have also read the cases
of Blay-Morkeh v Ghana
Airways Corp (supra)
and Owusu-Afriyie v State
Hotels Corp (supra) several
times and nowhere in those two
cases was it laid down that in
wrongful dismissal cases, a
plaintiff is entitled to all his
salaries calculated from the
date of his dismissal to the
date of judgment.
In the Blay-Morkeh case, it was
counsel for the plaintiff who
prayed the trial court to grant
his client his salaries for ten
years calculated from the date
of his wrongful termination
since he could have been in the
employment of the Ghana Airways
Corporation for ten years had it
not been his wrongful dismissal.
But Coussey, J. who delivered
the judgment had this to say:
“In view of the
contrary views expressed on what
considerations should influence
the award of damages for
wrongful dismissal, I hold the
view that damages should be
awarded up to such reasonable
time that perhaps the dismissed
servant can very well find
alternative employment
taking into consideration the
employment situation in the
country. It is well-known these
days that jobs are not easy to
come by. The plaintiff has not
indicated also that he made
efforts to find employment.
It is so easy for some to think
that the longer they stayed out
of work the more would be the
damages to be obtained”.
{Emphasis added}
In the Owusu-Afriyie case
also relied on by Osei-Hwere,
JA, the case was fought on the
then Industrial Relations Act of
1965, where there was a
provision to the effect that an
industrial tribunal could order
for the re-instatement of an
employee whose employment had
been wrongfully terminated with
full benefits.
It is therefore not the case
that in wrongful dismissal
cases, a plaintiff is entitled
to all his salaries from the
date of the wrongful dismissal
to the date of judgment. The
Blay-Morkeh case which
Osei-Hwere, JA relied on in the
Arkorful case and which
influenced the trial judge in
the instant case, even frowned
upon that when the judge stated;
“it is easy for some to
think that the longer they
stayed out of work the more
would be the damages to be
obtained”. The criteria
is that, damages should be
awarded up to such reasonable
time that perhaps the dismissed
servant can very well find
alternative employment.
This Court, speaking with one
voice through Date-Bah, JSC, in
the recent case of ASHUN v
ACCRA BREWERY LTD [2009] SCGLR
81 @ 82, with reference to
its own decision in
NARTEY-TOKOLI v VALCO [1987-88]
2 GLR 532, stated clearly
the principles that govern the
award of damages in cases of
wrongful dismissal. The Court
said: -
“In principle, in the
absence of any statutory or
contractual provision, the
measure of damages for wrongful
termination of employment,
(which includes wrongful
dismissal) under the common law
of Ghana, was compensation based
on the employee’s current salary
and other conditions of service
for a reasonable period within
which the aggrieved party was
expected to find alternative
employment. In other words, the
measure of damages was the
quantum of what the aggrieved
party would have earned from his
employment during such
reasonable period, determinable
by the court, after which the
employee should have found
alternative employment”.
This was the same principle
enunciated in the Blay-Morkeh
case (supra).
In the earlier case of KOBI v
GHANA MANGANESE CO. LTD
[2007-2008] SCGLR 771 @ 772,
this Court reiterated the point
that the award of damages for
loss of salary in such cases has
ranged between one year and two
years accumulated salaries. This
Court held in holding 2 as
follows:
“In assessing damages
for wrongful dismissal, the
court must have regard to all
the circumstances of the case
considered as fair and
reasonable. In the instant case,
considering the specialised
nature of the plaintiff’s
employment, which would make it
difficult to obtain alternative
employment; the general
unemployment problem in the
country and the abrupt end of
their careers and all the
circumstances of the case; and
bearing in mind that judicial
discretion should not be out of
joint with the general trend on
the matter and the fact that the
award of damages in these
matters has ranged between
two years to one year, the
court would award the plaintiffs
damages based on fifteen months’
salary as at the date of their
wrongful dismissal”.
In the instant case, Appellant
was a junior officer in the
Respondent Bank. He did not hold
any specialised position that
required endurance in obtaining
alternative means of employment.
In his own evidence, he said he
mitigated his losses when he
secured for himself an
alternative job as a trader when
he was dismissed. According to
him, when he initiated this
action for damages for wrongful
dismissal in January 2000, he
was arrested at his work place
and put before court on a
criminal charge with the
intention of coercing him to
curtail his action but he failed
to budge.
This means that at the time of
his arrest, he had secured an
alternative employment as a
trader, which from the record,
was less than a year after his
dismissal. It was therefore
wrong for the trial court to
assert that; “Although the
plaintiff seemed not to mitigate
his loss, there is no doubt that
he should be given reasonable
and substantial damages for
his suffering for the past
eleven (11) years or so…”
{Emphasis mine}
Appellant did not state anywhere
in his evidence that he suffered
financially for the whole period
of eleven (11) years that the
trial was going on. According to
him, he resorted to trading. So
if Appellant mitigated his
losses by finding alternative
means of employment in less than
a year of his dismissal, why
should he be paid salaries he
would have earned had he not
been dismissed from the date of
dismissal to the date of
judgment, which is about eleven
years? Such a calculation or
computation by the trial judge
was not justified in law. The
Court of Appeal was therefore
right when it interfered with
the award on the ground that the
quantum was extremely high as it
was based on extraneous matters.
Standard Chartered Bank v
Nelson (supra) applies.
The relief Appellant is seeking
from us is; “to vary the
decision of the Court of Appeal
to reflect the current and
prevailing salary and allowances
of similar employees of
defendant in the light of the
deliberate delay strategy of
defendant to have the suit
travel for more than 10 years in
the High Court and about 2 years
6 months in the Court of
Appeal”.
We do not understand what
Appellant meant by; “to vary
the decision of the Court of
Appeal to reflect the current
and prevailing salary and
allowances of similar employees
of defendant.” Is Appellant
saying that the computation of
the 15 months’ salary and
allowances should be based on
the current salaries and
allowances earned by employees
of the Respondent bank holding
the same position Appellant was
holding at the time of his
dismissal?
This relief being sought is
reminiscent of a similar claim
advanced by counsel for the
plaintiff in the Arkorful
case (supra) which the trial
court rejected in the following
words: “In spite of the
damages to his pocket which the
plaintiff is claiming, his
counsel, with much industry,
argues that he is entitled, in
addition, to the estimated
current value of the salaries
lost. His argument, as far as I
could understand him, proceeded
on the premises that if say in
1976 the plaintiff’s salary of
c10 per month could buy say ten
bottles of whisky then if there
should be a refund to him today
of the said salary then that
lost salary must be reckoned by
the value of ten bottles of
whisky today…I do not think that
this court can admit such a
claim which, if entertained,
will open the floodgates to
embrace such an economic loss as
a new head in assessing damages
in breach of contract. I think
that the invitation is dangerous
and I reject it”.
Just like the position
Osei-Hwere, JA took as recounted
above; this Court finds
dangerous and unwelcome
Appellant’s invitation to use
the current salaries being
earned by employees of
Respondent bank in the same
position Appellant held in 1999,
to compute the 15 months
salaries awarded by the Court of
Appeal. This is contrary to the
restitutio in integrum
principle, which guides the
courts in determining the
quantum or measure of damages in
breach of contract cases.
We find reasonable the award to
Appellant by the Court of Appeal
his salary and allowances for a
period of fifteen months,
beginning from the date of his
dismissal; i.e. 6th
April 1999 as adequate damages
for his wrongful dismissal. This
should be computed on the basis
of salaries and allowances he
would have earned in the fifteen
(15) months following the month
of dismissal; i.e. from 6th
April 1999 to 5th
July 2000.
The Court of Appeal also ordered
that Appellant’s SSNIT
contributions and Provident Fund
for fifteen months from 6th
April 1999, including any
outstanding arrears be paid. We
do not think the order meant
that the SSNIT contributions be
paid to him personally since
that is not done. By that order,
his SSNIT contributions for the
fifteen months following his
dismissal must be deducted and
paid to SSNIT as his
contributions towards his
retirement benefits, which he
could access after the
attainment of sixty (60) years.
This includes the employer’s;
(i.e. Respondent’s) portion for
the same period, which must
similarly be paid to SSNIT.
Aside from this, we are of the
view that it was not fair for
the Court of Appeal to limit the
payment of other entitlements to
the provident fund alone. As was
held by this Court in the
Nartey-Tokoli and Kobi
cases (supra), the measure
of damages for wrongful
dismissal from employment is not
confined to loss of wages or
salary only. In addition, the
affected worker is to receive
his entitlements under the
contract of employment due or
earned but unpaid by the
employer. These would include
leave allowance, bonus, long
service awards (if any) and all
other benefits the worker
enjoyed during his tenure of
employment. Appellant is
therefore to be paid all other
earnings, entitlements or
remuneration he was entitled to
for the period of fifteen (15)
months after his wrongful
dismissal, including his accrued
provident fund.
We are also of the view that the
Court of Appeal should not have
substituted the award of three
(3) months’ salary in lieu of
notice with one (1) month’s
salary without assigning any
reason for such interference.
The Court of Appeal did not
assign any reason for doing so.
In interfering with the award
made by a trial court, the
criterion is not what the
appellate court would have
awarded if the case had been
tried by it. So long as the
trial judge exercised his
discretion within the law in
arriving at the 3 months’ salary
in lieu of notice, that decision
should not have been disturbed.
The payment of three months’
salary in lieu of notice as
ordered by the trial High Court
is hereby restored.
Taking into consideration the
instability of the cedi and the
erosion of its real value over
time, it is not out of place to
order the Respondent to pay
interest on the fifteen months
accrued salaries and allowances
from the date of the High Court
Judgment (i.e. 6th
May 2010) to this date of
judgment on the basis of the
Court (Award of Interest) Law,
C. I. 52/2005. The award of
interest by the trial High Court
is hereby restored but varied as
above.
Other awards and variations made
by the Court of Appeal but not
mentioned herein (including
costs) remain undisturbed. The
appeal is therefore, allowed in
part.
(SGD) YAW APPAU
JUSTICE OF THE SUPREME COURT
(SGD)
S. A. B. AKUFFO
(MS)
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE-
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO -
BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL
WILLIAM ORLEANS ODURO ESQ.FOR
THE PLAINTIFF/ RESPONDENT/
APPELLANT
JACOB ARYEE ESQ, FOR THE 1ST
DEFENDANT/APPELLANT/RESPONDENT.
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