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JUDGMENT
MRS. WOOD, J.S.C.:
The appellant, who was employed
by the respondent company as a
mine operator, was subsequently
diagnosed with a cardiac disease
and therefore retired on medical
grounds.
Contending that his illness was
occupational, in that it
developed by reason of his work
schedule as a heavy machine
operator, he sued to recover
what he thought he was entitled
to under the section (c) of
Article 11.09 of the Collective
Bargaining Agreement (CBA),
together with interest thereon.
Both the trial High Court and
the Appeal Court, to which the
respondents who, was clearly
dissatisfied with the original
decision turned to for redress,
rightly in my view, identified
only one key issue for
determination. It was this:
Whether or not the appellants
medical condition was work
related, or to put it in the
language of the CBA, an
occupational ill-health.
The trial court gave an
affirmative answer to this
question and consequently
awarded him ¢12 million as
damages. The Court of Appeal
upon a very critical examination
of the available evidence,
particularly exhibit C and E,
concluded otherwise, reversed
this critical finding and set
aside the decision and the award
made thereunder.
Obviously dissatisfied with this
reversal, the appellant has
understandably appealed to us on
a sole ground, in spite of the
clear advance notice that
further grounds would be filed
on receipt of the record of
proceedings. The ground reads
as follows:-
“The Court of Appeal erred in
the interpretation of Exhibits
“C” and “E” in holding that the
appellants condition was not
occupational”.
It follows that this appeal
turns on the same narrow,
primary and fundamental issue of
whether or not his ill-health
was occupational. The importance
of this question is not
difficult to fathom. An
affirmative answer would, under
the contract of employment,
entitle him to 20 months of his
basic salary, rather than the
relatively paltry sum of 4
months salary which was offered
him, by the respondents as his
true and just terminal benefit.
Two simple arguments were
advanced in support of this sole
ground of appeal. At the trial,
the court had found that a pre
employment medical examination
of the appellant, had disclosed
no tell tale signs of any such
malady and had therefore
inferred from the Exhibit E, the
medical report, that his
subsequent ill health was
occupational, which finding
which the appellate court
reversed. It was therefore
submitted in this court, that
the proper inference to be drawn
from the Exhibit E was that
which was made by the learned
trial judge, namely that his
condition was as a result of his
employment with GAG, in other
words that his illness is
occupational. We have therefore
been urged to revert to this
finding in view of the contents
of Exhibit E.
However, it was urged in the
alternative that we ought not to
overlook the contributory role
of the occupation in the
development of the disease and
were invited to rule positively
to that effect.
I have not the slightest
difficulty in dismissing this
later alternate argument on the
contributory role of his work
schedule i.e operating heavy
equipment.
The action was not premised on
this fact and therefore, this
case was not fought along these
lines also. The issue therefore
never arose for the courts
consideration. The following
extract from his pleadings,
discloses the lines along which
this case was fought.
By the paragraph 2 of the
accompanying statement of claim
the appellant averred:
“By reason of the nature of his
work, the plaintiff developed
some ailment which eventually
caused the defendant to retire
him on medical grounds …..”.
The respondents countered these
facts by the paragraph 2 of
their statement of defence as
follows:
“The defendant admit retiring
the plaintiff on medical grounds
but denies that the plaintiffs
ailment was occupational, that
is due to the nature of the work
assigned him by the defendant”.
Thus, both at the trial and
understandably, appellate court
levels, the case was fought on
the fundamental issue of whether
or not there was a causal link
between his medical condition
and assigned work.
The introduction of the
contributory role of his
occupation in the development of
the disease is rather a
completely new point of fact and
offends the most basic and well
settled rule that an appellant
cannot be permitted to raise on
appeal a completely new issue of
fact which if it had been raised
at the trial, the parties would
have led the necessary evidence,
and would have being
investigated by the court.
Indeed the position been adopted
by the appellant could be
likened to that of a party who
raises for the first time on
appeal the issue, of
contributory negligence.
And so to the final question.
What was wrong with the
inference drawn by the appellant
court from the Exhibit C and E?
Both courts i.e. trial and
appellate, were of the opinion
that the inference to be drawn
as to whether or not the
ill-health was occupational,
depended on the meaning to be
attached to certain expressions
contained in the Exhibit E. The
salient portion of the Exhibit E
reads:
“The above-named patient, a GAG
employee and an operator of one
of the mining heavy trucks, was
referred to us from your clinic,
with complaints of precordial
pains with dysponea occasional
spontaneous trenors of upper
limbs and presence of echopic
beats which were previously
absent but developed during the
course of work with GAG.
Based upon the fact that his
condition which developed during
his work with GAG has not
improved …”
The trial judge reasoned that:
“Exhibit E says his condition
developed during the course of
work with GAG”, and further
concluded that. “This means the
illness is occupational, because
“work” is synonymous with
occupation. It developed during
the course of work with GAG and
that is what Exhibit “E” means
or Exhibit E makes this cause
more probable than not, for the
cause of the illness”.
The appellate court, speaking
unanimously through Amoono
Monney J.A. rightly in my view,
rejected this narrow and
mechanical approach to the
interpretation of not even the
whole document, but selected
portions of it. The court first
demonstrated that it was
legitimate to interfere with the
finding, and then substitute its
own, given that it (the finding
or decision) depended “on the
interpretation of a document
without expert assistance” and
also that the disputed point has
to do with the proper inference
to be drawn from facts accepted
and acted upon by the trial
court. In this regard, the
conclusion properly reached, in
my view, by the appellate court
was that on the authority of
(1) Attorney General v. Dadey
1971 1 GLR 228;
(2) Essandoh v. The Republic
1969 CC 63;
(3) Nyame Tarian Transport & 1
Or. 1973 1 GLR 8,
It had the competence to
substitute the correct
inference. The honourable court
thus concluded that the
expressions “which were
previously absent but developed
during the course of work with
GAG” are expressions of time in
which the event of the illness
occurred and have nothing to do
with the causation. They
contextualize in a time
dimension, time frame or time
perspective, the onset of the
illness without stating what
caused it. “Previously” surely,
refers time and “developed
during the course of work with
GAG surely means the symptoms
indicating the disease developed
while the respondent was in the
employment of GAG or during the
time that he was working with
GAG and not that his illness was
caused by the type or nature of
the work he did at GAG.
… His condition developed when
he was working with GAG and at
no other time”.
The above construction does in
my view conform to the basic
rules of interpretation of
documents, namely that the
interpretation must be nearly as
close to the mind and intention
of the maker as is possible, and
the intention must be
ascertained from the document as
a whole, with the words used
being given their plain and
natural meaning and within the
context in which they are used.
Finally, the complaint that the
court wrongly interpreted the
Exhibit C is untenable Contrary
to counsel’s argument, there
were no inference to be drawn
from the Exhibit C which was on
its face, as plain as day light,
and indeed the court drew no
inferences from it. On the
contrary, as stated in the
Exhibit C, the plain finding of
the District medical Board, made
up of three doctors, makers of
Exhibit C is that it was unable
“to establish any causal
relationship between Nana’s
present condition and his
occupation as a Heavy machine
operator nor his involvement in
the work place accident in spite
of his employment medical
fitness”.
As the court rightly found, the
burden of persuasion was on the
appellant, not the respondent.
It was for him to establish that
his illness was occupational,
and he did not succeed in doing
that. Much as I sympatise with
his misfortune, (ill health) he
cannot succeed in this appeal.
His Counsel’s passionate plea
that (1) we temper justice with
mercy in view of the
recommendation by the medical
review board that a generous
retirement package over and
above what he is legally
entitled to under the CBA, be
given him (2) further that there
has been a miscarriage of
justice and that we order a
retrial are all clearly
untenable. In such legal
matters, compassion has no role
to play. The appellate court was
right in its findings and
conclusions and we would not be
justified in law, in interfering
with them. I will dismiss this
appeal.
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
G. T. WOOD (MRS)
JUSTICE OF THE SUPREME COURT
S.A. BROBBEY
JUSTICE OF THE SUPREME COURT
G.S. BADDOO
JUSTICE OF THE SUPREME COURT
COUNSEL
A. K. Dabi for the Appellant.
Samuel Dzigba for the
Defendant/Appt./Respondent.
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