|
Labour - Employment contact -
Conditions of service of the
employees - Long service award.
- Consolidation of salary -
Whether the defendant was
entitled to five month salary as
long service award. - Whether
or not there were anomalies in
his calculated benefits -
HEADNOTES
The Plaintiff is a former
employee of the Defendant
church.
While the defendant is a
registered church in Ghana with
its headquarters at La.
Plaintiff claims as follows:-
Defendant be ordered to use
Ghana Health Service Salary
Scheme which Plaintiff was
enjoying at the time before his
retirement to compute all
benefits due him including long
service award in 2006 Annual
Bonus from 2007 to 2008, Annual
Leave allowance from 2007 to
2008 transfer grant and end of
service benefit to be paid to
Plaintiff as arrears that have
been occasioned by the use of
wrong salary scale to compute
Plaintiff’s benefit,. Interest
at the current bank rate or the
sum from the date due to the day
of final payment. Order for
award of retiring benefit of
Deep freezer and provision of
transport for the Plaintiff, his
family and luggage to
Dunkwa-On-Offin. The
trust of the answer of
defendant/appellant/appellant,
hereafter to be referred to as
the “defendant”, to plaintiff’s
claim was that the salary
plaintiff enjoyed from the Ghana
Health Services was consolidated
and included all his allowances
so he was not entitled to any of
the benefits contained in the
condition of service. Further,
it denied plaintiff’s claim that
he was entitled to have his
allowances calculated on the
basis of his GHS salary.
According to defendant the
amount paid to plaintiff was
gratuitous and not based on any
legal right of plaintiff so it
counterclaimed against plaintiff
for refund of those payments the
High Court gave judgment in
favour of plaintiff. Being
aggrieved, defendant appealed
but the Court of Appeal affirmed
the decision of the High Court
HELD
From plaintiff’s own pleadings
and evidence, starting 2006
defendant refused to use his GHS
salary to calculate any
allowances due him under the
conditions of service so we are
unable to find any legal basis
in plaintiff’s case as pleaded
for his position that basic
salary ought to mean GHS salary
If the interpretation placed on
basic salary by the trial court
were allowed to stand it would
mean that those workers of
defendant who are on their
payroll will be treated less
favourably than plaintiff and
his group. It will be absurd and
unreasonable to presume, through
an exercise of what the trial
judge called literalist rule of
interpretation, that the parties
intended such an inequitable
outcome. A court of law ought
not to interpret a deed so as to
result in such absurdity. It is
settled law that where the
application of the literalist
rule of interpretation leads to
absurdity and unreasonableness
it ought not to be applied. For
the reasons explained above,
save for the order dismissing
defendant’s counterclaim, we set
aside the judgments of the High
Court and of the Court of
Appeal. Appeal allowed in part.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
Gregory V Tandoh & Anor [2010]
SCGLR 971.
Boateng v Volta Aluminum Co. Ltd
[1984-6] 1 GLR 733,
Wigsell v Corporation of School
of Indigent Blind (1880) 43 LT
21
Osei v Ghanaian Australian
Goldfields Ltd [2003-2004] SCGLR
69,
BOOKS REFERRED TO IN JUDGMENT
Modern Approach to the Law of
Interpretation; Sir
Dennis Adjei’s
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC.
COUNSEL
J. A. LARKAI FOR THE
DEFENDANT/APPELLANT/APPELLANT.
ERIC ESUMAN-ADU FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------------
PWAMANG, JSC.
The facts of this case have been
coherently set out in the
statement of claim filed on 24th
January, 2011 by
plaintiff/respondent/respondent,
hereinafter to be referred to as
the “plaintiff” so we shall
reproduce it in extensor.
1.
The Plaintiff is a former
employee of the Defendant
church.
2.
While the defendant is a
registered church in Ghana with
its headquarters at La.
3.
The Defendant at all material
times has its primary mission to
propagate the gospel and to win
souls into the Lord’s vineyard.
It also undertakes social
responsibilities such as
establishment of schools and
hospitals to meet the
educational and medical needs of
the communities that operates.
4.
In view of Defendant’s social
responsibilities it has many
employees whose conditions of
service are negotiated by the
employees and also are almost
invariably in conformity with
the labour law of Ghana.
5.
Plaintiff avers that he was
first appointed by Defendant
Church as Medical Assistant on
the 2nd January 1991
and worked continuously for 18
years 4 months before retiring
voluntarily on the 30th
April 2009.
6.
Plaintiff contends that even
though all the staff of the
clinics of the church are all
employees of the church some are
on the Ghana Health Service pay
roll whilst others are on the
pay roll of the church.
7.
According to the Plaintiff
before year 2006 the salary
scale of the clinical staff on
the pay roll of the church was
higher than that of the staff on
the Ghana Health Service pay
roll and the church
provided the necessary top ups
to march their colleagues on
the pay roll on the church.
8.
Plaintiff says, however, the
tide changed in 2006 when the
government increased the salary
of Ghana Health Service (GHS)
employees and consequently
affected Pentecost workers on
GHS Scale.
9.
It is the contention of the
plaintiff that the church
refused to use the new salary
scale to work all benefits that
were due employees amidst
protestation of the staff.
10.
It is the case of the Plaintiff
that he attained 15 years in
2006 and in accordance with the
conditions of service of the
employees of the Defendant he
was entitled to five month
salary as long service award.
11.
Plaintiff avers further that the
Defendant unilaterally used year
2005 basic salary of ˘3,087,122
or GH˘308.71 to pay his long
service award instead of using
the 2006 basic salary of
˘11,815,682.00 orGH˘1,181.57.
12.
It is the contention of the
plaintiff that the church by
using the 2005 salary scale to
calculate his long service award
he was cheated by GH˘4,364.28
13.
Plaintiff further contends that
at the time of his retirement in
2009 his rank was Chief Medical
Assistant on the salary scale of
GH˘19,221.00 per annum or
GH˘1,601.75.
14.
Plaintiff further says that
instead of his end of service
benefit being calculated based
on his prevailing salary in
accordance with Article 2.19 (c)
of the church of Pentecost
(General Headquarters) Condition
of Service for senior staff
employees (COP Snr. Staff
Condition of Service) the church
used its own revised salary
scheme to calculate retiring or
end of service benefit thus
underpaying him by whooping
amount of GH˘26,917.32 that is
instead of paying him
GH˘58,720.14 he was paid
GH˘31,802.92
15.
Plaintiff further states that
the church used its own rate in
calculating his leave benefits
from 2007 to 2008 to his
detriment.
16.
It is the contention of the
plaintiff that varying his
salary to his disadvantage
permeated all other benefits due
him which included annual
bonuses and transfer grant thus
depriving him of thousands of
Ghana cedis legitimately due
him.
17.
It is the case of the plaintiff
that on the whole he has been
deprived of an amount of
GH˘45,220.14 comprising
anomalies in the computation of
long service award annual
bonuses, annual leave allowance
for two years, transfer grant
and end of service benefit.
18.
Plaintiff says in all these
anomalies he brought to the
attention of management but the
Defendant refused even to
acknowledge receipt of his
petitions.
19.
It is the case of Plaintiff that
when he retired he further wrote
to the church but as usual he
was not acknowledged by the
church.
20.
According to the plaintiff as a
result of the Defendant’s
intransigence to correct or
rectify the anomalies he asked
this counsel to write two
letters to the defendant to draw
its attention to the anomalies
but as usual the defendant did
not have the slightest courtesy
of affording his lawyer a reply.
21.
The plaintiff further states
that he was refused the golden
hand shake of a deep freezer
which is given to all retiring
employees.
22.
It is the contention of my
client that the Defendant should
bear the cost of his
transportation to his home base
at Dunkwa-On-Offin.
23.
Plaintiff further avers that the
Defendant will never rectify the
anomalies that have been brought
about as a result of the
Defendant varying the salary
structure of the plaintiff to
his detriment unless he is
compelled to do so by this
Honourable Court.
24.
WHEREFORE the Plaintiff claims
as follows:-
(a)
Defendant be ordered to use
Ghana Health Service Salary
Scheme which Plaintiff was
enjoying at the time before his
retirement to compute all
benefits due him including long
service award in 2006 Annual
Bonus from 2007 to 2008, Annual
Leave allowance from 2007 to
2008 transfer grant and end of
service benefit i.e. a total sum
of GH˘39,855.86 be paid to
Plaintiff as arrears that have
been occasioned by the use of
wrong salary scale to compute
Plaintiff’s benefit.
(b)
Interest at the current bank
rate or the sum from the date
due to the day of final payment.
(c)
Order for award of retiring
benefit of Deep freezer and
provision of transport for the
Plaintiff, his family and
luggage to Dunkwa-On-Offin.
The trust of the answer of
defendant/appellant/appellant,
hereafter to be referred to as
the “defendant”, to plaintiff’s
claim was that the salary
plaintiff enjoyed from the Ghana
Health Services was consolidated
and included all his allowances
so he was not entitled to any of
the benefits contained in the
condition of service. Further,
it denied plaintiff’s claim that
he was entitled to have his
allowances calculated on the
basis of his GHS salary.
According to defendant the
amount paid to plaintiff was
gratuitous and not based on any
legal right of plaintiff so it
counterclaimed against plaintiff
for refund of those payments.
After a brief trial where
plaintiff testified and tendered
documents without calling any
witness and a manager of
defendant testified on its
behalf and called only one
witness, the High Court gave
judgment in favour of plaintiff.
Being aggrieved, defendant
appealed but the Court of Appeal
affirmed the decision of the
High Court. Defendant has
further appealed to this court
as the final appellate court on
seven grounds.
An appeal is by way of rehearing
and the duty of an appellate
court is to peruse the whole
record of appeal and satisfy
itself that the findings and
conclusion of the court below
are justified having regard to
the evidence adduced at the
trial and the law applicable.
Where an appeal is made against
concurrent findings, as in this
case, the second appellate court
is slow to overturn those
findings unless there are
compelling reasons. A second
appellate court will however
overturn concurrent findings
where it finds that the finding
are not supported by the
evidence led at the trial or
where it is proved that the
court below misapplied the law
to evidence on record.
See Gregory V Tandoh & Anor
[2010] SCGLR 971.
We shall consider all the
grounds of appeal together. We
have carefully reviewed the
evidence on record and find that
the finding of the trial court
and the Court of Appeal that
plaintiff as an employee of
defendant was entitled to
benefits under the conditions of
service for senior staff is
supported by the evidence on the
record. The evidence shows that,
despite the fact that plaintiff
and similarly placed staff were
drawing their salaries from the
Ghana Health Service (GHS),
defendant related to them as
their employer with benefits
under the conditions of service
for senior staff. We accordingly
affirm the dismissal of
defendant’s counterclaim.
We however think that the
finding of the trial court,
which was confirmed by the Court
of Appeal, that plaintiff is
entitled to allowances and
benefits calculated on the
salary scale of the Ghana Health
Service requires to be
critically examined.
Paragraph 14 of the statement of
claim reproduced above shows
clearly that the plaintiff
hinged his case on the
conditions of service which was
tendered in evidence as Exhibit
“B”. Consequently, the main
issue for determination in this
case was issue (iii) set out in
the issues for trial by
plaintiff in the following
terms; “Whether or not the
plaintiff was entitled to the
payment of End of service
benefits and other allowances
based on his prevailing annual
salary”. This called for
interpretation of the Conditions
of Service to, among other
things; determine the meaning
and scope of the words “basic
salary” stated therein to be
used in the calculation of the
benefits and allowances.
The trial High Court rightly
identified this issue but held
that “basic salary” in Exhibit
“B” can only mean the GHS salary
plaintiff was drawing at the
material times. Unfortunately
the Court of Appeal did not give
consideration to the meaning and
effect of “basic salary” in the
conditions of service which is
at the core of the dispute
between the parties which ranged
from 2006 to 2011 when this suit
was filed. The trial judge
stated that she was applying the
literalist rule of
interpretation to construe
“basic salary” in exhibit “B”.
She delivered herself as
follows;
“The rules and principles of
interpretation per the literal
rule requires that words that
are reasonably capable of only
one meaning must be given that
meaning no matter the result.
Defendant’s argument that if it
used Defendant’s basic salary
scale it would have paid
plaintiff had the latter on its
payroll cannot be sustained.
The provision in the conditions
of service is clear and
unambiguous. What needs to be
used in the computation of the
leave allowance and all other
allowances which have reference
to the employee’s salary must be
the salary that plaintiff is
paid. What then is the
Plaintiff’s salary? It is the
salary he received at the
relevant times paid by the GHS
and that ought to be used in the
computation of his
entitlements. Plaintiff thus
entitled to the payment of end
of service benefit and other
allowances based on his
prevailing annual salary at the
relevant time.”
We are unable to comprehend what
the trial judge meant by her
position that the words “basic
salary” in Exhibit “B” were
capable of only one meaning. The
evidence on record shows that
the parties placed different
meanings on the term with
plaintiff contending that it
meant the GHS salary he was
drawing and defendant said the
GHS salary was Consolidated
salary and not basic salary as
contemplated by the conditions
of service. For instance during
cross examination of plaintiff
by defendant’s lawyer the
following ensued;
“Q. Mr Essuman can you check
the last page 12 of the
conditions of service. We have
B, C, D before we come to the 2
1 (6) d, my Lord with your
permission I will read (he
reads), I am putting it to you,
basic salary here means COP
(Church of Pentecost) basic
salary.
A. My lord that is not correct,
because I never enjoyed COP
basic salary, I only enjoyed
that of GHS salary they
themselves put on me.”
In the face of these contesting
positions it was wrong for the
trial judge to fail to consider
the interpretation placed on the
words by defendant and assumed
plaintiff’s was right without
properly construing the words.
When two parties place different
and conflicting meanings on
words in a deed, the court has a
duty to construe the words using
the tools of interpretation of
deeds and justify why one
meaning is right and the other
faulty.
It certainly is useful to point
out that in dealing with the
interpretation of deeds the
literal and plain meaning rule
must always be applied within
the context of the deed being
construed and not standing by
itself alone as the trial judge
did in this case.
In Boateng v Volta Aluminum
Co. Ltd [1984-6] 1 GLR 733,
the Court of Appeal was faced
with the construction of an
employment contract, as we have
in this case, and the court
adopted the approach applied by
Huddleton B in Wigsell v
Corporation of School of
Indigent Blind (1880) 43 LT 218
where he said as follows;
‘In construing covenants, the
fulfillment of the evident
intention and meaning of the
parties to them must be looked
at not confining oneself within
the narrow limits of a literal
interpretation; but taking more
liberal and extended view; and
contemplating at once the whole
scope and object of the deed in
which they are contained.’
Again in the case of Osei v
Ghanaian Australian Goldfields
Ltd [2003-2004] SCGLR 69, at
page 73 of the report,
Wood JSC (as she then was) said
as follows in respect of the
proper approach to
interpretation of deeds:
“….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.”
The trial judge did not consider
Exhibit “B” as a whole neither
did she take its context into
account in interpreting it so as
to ascertain the intention of
the parties. This being an
employment contract, the proper
approach of interpretation is to
construe the words “basic
salary” within the context of
the whole document having in
mind the scope and object of the
document.
The plaintiff in his statement
of case has referred us to the
following passage appearing at
page 49 of Sir Dennis Adjei’s
Book; Modern Approach to the
Law of Interpretation;
“Interpretation must always have
in mind the age-old ratio in
construction of documents and
deeds which was re-echoed in the
case of Osei v Ghanaian
Australian Gold Field Ltd.
[2003-2004] SCGLR 69. The law
governing rules of construction
of documents and deeds are that
interpretation must be nearly as
close to the mind and intention
of the maker. Any construction
of a document or deed which will
render the meaning absurd,
incongruous, unreasonable or
unintelligible, or that will
create hardship or inconvenience
and will not be nearly as close
to the mind and intention of the
maker should be rejected in the
modern day. Judges must examine
the document as a whole in order
to ascertain the purpose and the
mischief the parties sought to
cure.”
That reference is apt in the
circumstances of this case. In
our considered opinion, “basic
salary” in Exhibit “B” could not
have been intended to include
the consolidated salary on the
GHS salary scheme. When the
document is read as a whole it
will be realised that no
differentiation was made between
senior staff who were on the GHS
salary scheme and those on
defendant’s salary scheme and it
would be unreasonable and absurd
to conclude that the intention
was to bind defendant to a
salary scheme that it had no
control over. It accords with
equity to conclude that since
commitment was being made by the
defendant to its employees, some
of whom were not on the GHS
salary scheme, the reference of
“basic salary” meant basic
salary as fixed by the defendant
in accordance with provisions of
Exhibit “B”.
Plaintiff in his statement of
case stated that Exhibit “B”
came into effect on 7th
January, 2007 so it can be
presumed that it was a reviewed
version of earlier conditions of
service. From the record, by
2007 the astronomical level of
salaries paid on the GHS salary
scheme had hit defendant hard
and it refused to use those
salaries to calculate allowances
that were paid to plaintiff in
2006. It will therefore result
in hardship to construe “basic
salary” as referring to the
consolidated salaries on the GHS
salary scheme.
We therefore hold that the
proper interpretation to be
given to “basic salary” in
Exhibit “B” is basic salary
determined by defendant for the
different levels of senior staff
on its payroll.
We could have rested our
decision here but, in his
statement of case, plaintiff
referred to some promotion
letters (Exhibit E series)
defendant gave him that made
reference to the GHS salary
scheme as his salary and has
argued that that is what the
parties intended by basic salary
in Exhibit “B”. It is Exhibit E2
dated 20th September,
2007 and E3 dated 7th
January 2008, that make
reference to GHS salary scheme.
Exhibits “E” dated 1st
November 2000 and “E1” dated 30th
November, 2004 use the term
“basic salary”. The dates are
significant because, from the
evidence, the salary levels
became an issue between the
parties from 2006 when the
government raised the GHS
salaries very high. To our
understanding, what the
two sets of letters portray is
rather that the parties always
understood “basic salary” to be
different from GHS salary hence
the change in the term used in
communications between them
after 2006. If they intended
basic salary to be the same as
GHS Salary, there would have
been no need to change the
wording of the letters of
promotion from basic salary to
GHS salary scheme.
From plaintiff’s own pleadings
and evidence, starting 2006
defendant refused to use his GHS
salary to calculate any
allowances due him under the
conditions of service so we are
unable to find any legal basis
in plaintiff’s case as pleaded
for his position that basic
salary ought to mean GHS salary.
In the protest letter written by
defendant dated 22nd
February, 2006, no legal ground
was canvassed for petitioning
for the GHS salaries to be used
in calculating his allowances.
If the interpretation placed on
basic salary by the trial court
were allowed to stand it would
mean that those workers of
defendant who are on their
payroll will be treated less
favourably than plaintiff and
his group. It will be absurd and
unreasonable to presume, through
an exercise of what the trial
judge called literalist rule of
interpretation, that the parties
intended such an inequitable
outcome. A court of law ought
not to interpret a deed so as to
result in such absurdity. It is
settled law that where the
application of the literalist
rule of interpretation leads to
absurdity and unreasonableness
it ought not to be applied.
For the reasons explained above,
save for the order dismissing
defendant’s counterclaim, we set
aside the judgments of the High
Court dated 28th
March, 2011 and of the Court of
Appeal dated 24th
June, 2015. Appeal allowed in
part.
(SGD)
G. PWAMANG
JUSTICE OF THE
SUPREME COURT
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD) Y. APPAU
JUSTICE OF THE SUPREME COURT
COUNSEL
J. A. LARKAI FOR THE
DEFENDANT/APPELLANT/APPELLANT.
ERIC ESUMAN-ADU FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
|
