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JUDGMENT.
J.B. AKAMBA, J.A
On 15th November 2002,
Mrs. I.M. Heward-Mills, J. sitting at the High Court
Tema, entered judgment against the defendant/appellant
(hereinafter referred as the defendant) upon a writ of
summons laid before her. The defendant, who is
dissatisfied with the judgment, filed the present appeal
in this court.
The facts of this case
as gleaned from the record of proceedings are that the
defendant company employed the twenty-two
plaintiffs/respondents (hereinafter simply referred as
the plaintiffs) as non-permanent (casual) labourers on
various dates before their appointments were terminated
on 29th February 2000. The plaintiffs' employment was
covered by collective agreement, which spelt out their
conditions of service. The collective agreement, exhibit
A, is governed by the Industrial Relations Act 1965, Act
229, since it was negotiated on their behalf by the
Trade Union. It is the case of the plaintiffs that upon
the termination of their employment, the defendant
failed to pay them duly as provided under the agreement
resulting in loss to each plaintiff. The plaintiffs also
contend that prior to tile termination of their
respective employments, tile defendant had failed to
convert their casual status to permanent, in accordance
with the collective agreement despite the fact that they
had qualified for such conversion. This was also done to
their detriment.
The defendant on the
other hand, admits that even though there were no formal
notifications to the plaintiffs either individually or
collectively, defendants appropriate had treated the
plaintiffs as permanent employees. They accordingly paid
the plaintiffs appropriate benefits except for those
benefits that required individual formal applications.
In these latter instances those who applied were granted
the facility.
The plaintiffs issued
their writ of summons on 28th April 2000 claiming
against the defendant the following:
"(1) Damages for breach
of contract in failing to engage PLAINTIFFS in the
permanent establishment of DEFENDANT company according
to their employment contract resulting in monetary loss
to PLAINTIFFS.
(2) Payment of
differences between payment made upon PLAINTIFFS
redundancy and PLAINTIFFS’ rightful entitlements as
would be entitled to a permanent employee.
(3) Special damages.
The trial judge after
hearing evidence from both parties entered judgment for
the plaintiffs granting all the reliefs stated supra.
The defendant who is aggrieved by the decision filed the
following grounds of appeal.
(1) The judgment is
against the weight of evidence.
(2) The trial judge
erred in law and in fact in awarding general damages and
interest and worse still excessive general damages and
interest in favour of plaintiffs.
(3) The trial judge
erred in law and in fact in awarding extremely excessive
cost to the plaintiff.
(4) The trial judge
erred in law and intact by failing to apply the
Limitation Decree, 1972 (NRCD 54) in favour of the
Defendant.
(5) The trial judge
erred in Law and in fact by failing to apply the common
law principle of estoppel in favour of the defendant but
applied it in favour of the plaintiffs.
(6) Further grounds to
be filed upon receipt of the record of proceedings.
I propose to dispose of
this appeal in the same sequence adopted by the
appellant counsel in his submission of case, starting
with grounds one (1) and two (2) together. The complaint
in these two grounds together is that the judgment is
against the weight of evidence in the award of excessive
general damages and interest in favour of the
plaintiffs.
Before dealing with the
ground of appeal (supra), let me quickly determine the
preliminary point raised by the plaintiffs in their
answer to the submissions of the appellant, alleging
that the statement of case was filed out of time thereby
infringing rule 20(1) of CI 19 as amended by C.I. 25.
The plaintiff's counsel attached a search—exhibit A—made
at the registry of this court to prove that civil form 6
was served on the defendant on 14th January 2004 but as
at 1st April 2004, the defendant had not filed his
written submission. The defendant however filed the
statement of case on 11th March 2004, twenty-six days
after the time limited for filling. Under rule 20 (1) of
C.1 19, as amended by CI 25, an appellant, shall within
21 days of being notified in form 6 that the record is
ready, or within such time as the court may upon terms
direct, file his written submission of case with the
registrar. There is also no indication that leave of
court was sought and obtained.
In response, the
defendant submitted that his written submission was
filed within 21 days, calculating from 25th February
2004 when they found the civil form 6 abandoned on their
table. According to the defendants' counsel, the bailiff
did not serve form 6 on him. The defendant company was
also not served, and could not have been served since
the company ceased operating on 30th May 2003 and all
the employees and officers made redundant. The company's
offices have since 1st June 2003 remained unoccupied.
The defendants for their part, also attached the results
of a search undertaken in the registry of this court, to
prove that the form 6 was served on one Mr. Ohene Asante
whose designation or post was not indicated. There is no
person by the name Ohene Asante in the employment of
defendant. This kind of service is improper and could
not be relied upon to determine the fate of the
statement of case filed. There was also no indication as
to who signed on behalf of the defendant as having
received the form 6.
There are sufficient
lapses in the service and the certificate of service to
render it unreliable. I am left with no choice than
accept that the defendants indeed found form 6 abandoned
on a table in their office on 25th February 2004.
Reckoning that the defendant found the form 6 on 25th
February 2004 and they filed their statement of case on
11th March 2004, they were within the stipulated time
provided by the rules. In the result I find no merit
whatsoever in the preliminary objection and dismiss it.
The defendant impugns
the trial judges finding that all the twenty-two
plaintiffs have been in employment for more than ten
years for which they were entitled to the benefits
equally. Counsel refers to exhibit 4 from pages 110 to
130 of the record as indicative of the respective dates
of appointment of each plaintiff. Exhibit 3 and 4 are
pay slips in respect of each of the plaintiffs,
tendered in evidence by the defendant. Whilst it is true
that the date of appointment of each plaintiff is
clearly written on the pay slip relevant to him, I find
two different dates of appointment given in respect of
the same persons on the two exhibits. This discrepancy
notwithstanding, it is still possible to determine those
who have worked for ten years and above or below
because, by and large, the difference relates to the
months in which they were appointed. It is certainly
important to know the dates of appointment in order that
injustices will not be done to any party on account of a
wrong date. A close look at both exhibits 3 and 4
reveals that only eight of the plaintiffs had worked for
ten years and above at the time of the determination.
These are the 1st plaintiff J. K. Nyarko, 2nd plaintiff
Joseph Dari Fulo, the 3rd plaintiff John Kofie, the 6th
plaintiff Dayiriga Lobi, the plaintiff Kwame Oduro, the
11th plaintiff Bribe Sey, the 14th plaintiff Yakubu
Kusasi and the 17th plaintiff S.K. Ampomah.
Article 4 (vi) of the
collective agreement, exhibit A, provides that any non
permanent employee who has been working satisfactorily
on a casual or regular basis for a period of 132 working
days or 1056 hours, whichever is less, shall be
confirmed in the permanent establishment of the company.
There is no evidence that the defendant ever wrote
confirming any of the eight aforementioned plaintiffs,
during their ten years of employment, in any permanent
establishment of the company. However by virtue of
Article 4 (iii) of exhibit A, the said plaintiffs should
be deemed confirmed in permanent establishment. The
failure to specifically confirm the aforesaid plaintiffs
in permanent status worked to the detriment of the said
plaintiffs since there was nothing such as enhanced take
home pay and benefits to show but the mere presumption.
It is not true to suggest that the salaries of both
permanent and non-permanent employees are the same or
remained the same over the years. Had they been put on
salaries commensurate with confirmation some would have
progressed along the salary scale to appropriate
heights.
The defendant next
questions the fifteen (15) million cedis damages made in
favour of each of the plaintiffs thus totaling three
hundred and thirty million (330 million) cedis. His
complaint about fourteen of the plaintiffs in particular
is that they had been engaged for periods far shorter
than ten years to warrant that collosal award. Since
this ground raises questions about the damages awarded
in favour of all the plaintiffs, the award would be
scrutinized to ascertain whether it conformed to the
rules. Damages are awarded as financial compensation for
actual loss provided it is not too remote. They are not
intended to punish the defendant either. The case of
Hadley v Baxendale (1854) 9 Exch. 342 @ 354 which blazed
the trail for the award of damages states that damage is
too remote if the damage is not the natural consequence
of the breach. Also, it is too remote where the
defendant could not have foreseen it (the damage) when
making the contract. In the words of Alderson B in the
Hadley v Baxendale case (supra): "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 either arising
naturally i.e. according to the usual course of things,
front 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.”
In the light of the
evidence on record and the authorities cited, the
defendants are justified in decrying the award of
fifteen million cedis damages across board for all the
twenty two plaintiffs for the simple reason that it is
unreasonable in some instances whilst for some it might
be acceptable. It is unjustifiable and unacceptable to
treat the entire plaintiffs equally for the purposes of
imposing damages whereas they were appointed on
different dates and served different tenures. The
defendants claim that the plaintiffs had enjoyed
benefits ordinarily accorded permanent employees but
this does not discharge them from the consequences of
their failure to officially write to declare them
(plaintiffs) as permanent workers with permanent salary
structures and benefits. The plaintiffs are certainly
entitled to damages but these should be commensurate
with their years of employment with the defendant and
bearing in mind the treatment generally accorded them by
the defendant. Accordingly I hereby set aside the
fifteen million cedis awarded in favour of each of the
plaintiffs. I enter the following damages in respect of
the plaintiffs, namely: fourteen (14) million cedis for
those who worked for ten (10) years and above; ten (10)
million cedis for those who worked for five (5) years
and above but less than ten (10) years; five (5) million
cedis for those who worked for one (1) year and above
but less than five years, and two (2) million cedis for
those who worked for one hundred and thirty-two (132)
days to less than (5) years. We allow interest on the
respective sums at prevailing bank rates from 28th June
2000 to 15th November 2002 and then after to run at the
statutory rate of interest till same is liquidated.
The defendant has also
raised for determination that the plaintiffs action in
the court below was statute barred relying upon the
Limitations Decree NRCD 54. Whilst it does appear that
the cause of action for some of the plaintiffs was
extinguished at the time they instituted their action,
the defendant could not wait till the close of evidence
to pull a surprise at plaintiffs. A statute of
limitation seeks to regulate the time within which a
party's rights would be invoked within the law. The
essence of limitations is to set a time limit within
which to articulate a person's right of action in order
that litigation will be minimized or brought within
limits. This being the case, limitations operate within
rules, one of which is the requirement for pleading.
Pleading will ensure that the other party is adequately
informed to enable him prepare to answer. The defendant
had urged that NRCD 54 being a statute and a decree as
such, pleading is no longer necessary in order to invoke
its provisions. This to my mind is at best a self
serving argument and not backed by any authority. The
decree did not do away with the rule of practice, which
requires that the other party be alerted in the event
that limitation will be made an issue.
Limitation being an
issue of law, the defendant is required under Order 19,
r 16 of the High Court (Civil Procedure) Rules, 1954 (LN
140A) to specifically plead it in order to obviate any
surprises to the plaintiffs. Order 19, r 16 enacts: "
16. The defendant or plaintiff (as the case may be) must
raise by his pleading all matters which show the action
or counterclaim not to be maintainable, or that the
transaction is either void or voidable in point of law,
and all such grounds of defence or reply, as the case
may be, as if not raise would be likely to take the
opposite party by surprise, or would raise issues of
fact not arising out of the preceding pleadings, as, for
instance, fraud, statute of Limitations, release,
payment, performance, facts showing illegality either by
statute or common law, or Statute of Frauds."
(Underlined for emphasis). I also find support for my
view in the case of Dolphyne (No 3) v Speedline
Stevedoring Co. Ltd. and Anor (1996-97) SCGLR 514, of
which I am bound. In any case, the defendant has not
given me any good reason not to follow the authority
cited supra. In the above-cited case, Charles Hayfron
Benjamin, JSC put the issue beyond doubt when he said on
page 521 thus:
"Suffice it to say that
that Limitation Decree, 1972 (NRCD 54) adverted to is
essentially a special plea and must be pleaded: see
Order 19, r 15 of the High Court (Civil Procedure)
Rules, 1984 (LN 140A). It must he borne in mind that if
this special plea is not pleaded, it cannot be adverted
to in submissions to the court. The court on its part
will not also of its own motion take notice that the
action is out of time."
In the result, it is my
finding that the defendant has not demonstrated that he
is entitled to this relief having simply failed to plead
the issue of limitation in the court below. This ground
of appeal accordingly fails.
There now remains the
issue of costs, which the defendant decries as being
fantastic and excessive. In her judgment the trial judge
dealt with the issue of cost at the close of her
determination of damages. This is what she said: "
However in recognition of the loss to the plaintiffs
resulting from the defendants breach of their statutory
obligations under the governing collective agreement,
the court awarded general damages of 15 million cedis
together with interest at prevailing bank rate from June
2000 to date, to each of the plaintiffs. Cost of five
(5) million cedis is also awarded to each of the
plaintiffs.
It is trite to observe
that a successful party is usually entitled to costs but
this is a matter of discretion for the trail judge who
is required to exercise his/her discretion judicially,
that is to say, according to reason and justice and not
according to sentiments or sensibility. A party who is
aggrieved by an award of costs may upset it if he can
show that the judge wrongly exercised his/her discretion
in the particular case. See Nartey-Tokoli vs Volta
Aluminium Co. Ltd (1987-88) 2 GLR 532; Guardian
Assurance CO. Ltd vs Khayat Trading Store (1972) 2 GLR
48; Boullion Industries vs Dizenyoff Gh. Ltd, CA, HI/
8512004 of 30th April 2004 (unreported). As can be seen
from the quotation supra, the trial court awarded five
million cedis costs in favour of each of the plaintiffs.
It is not clear what the reasons were for the award of
that amount across board to the plaintiffs. What is
obvious however is that the plaintiffs mounted their
action jointly. The same counsel represented them. At
the trial, the 1st plaintiff testified for all the
plaintiffs and they called only one witness. The
defendants for their part called only one witness.
Besides all these, there is nothing complicated about
this case. In the light of the above, I find the
defendants’ complaint justified especially when no
reasons were assigned for the onerous award. I find
support for this position in the dictum of Lord
Sterndale M. R. in Ritter v. Godfrey (1920) 2 K.B. 47 @
pp. 52-53, C.A. which was followed by this court in Musa
v. Limo-Wulana (1975) 2 G.L.R. 290 @ 300 pp Azu Crabbe,
C.J. as follows:
"there is such a
settled practice of the courts that in the absence of
special circumstances a successful litigant should
receive his costs; that it is necessary to show some
ground for exercising a discretion by refusing an order
which would give them to him. The discretion must be
judicially exercised, and therefore there must be some
grounds for its exercise, for a discretion exercised on
no grounds cannot be judicial."
Consequently I set
aside the costs of five million cedis awarded to each
plaintiff. I enter the defendant is entitled to his
costs in this court.
J. B. Akamba.
Justice of Appeal.
S.T. FARKYE, J.A
I agree
S.T. Farkye
Justice of Appeal
Jones Dotse, J.A.
I also agree
Jones Dotse
Justice of Appeal
COUNSEL
K.N. Baffoe, Esq. for
the Defendant/Appellant.
E. Avernogboe, Esq. for
E.K. Jones-Mensah & Associates for
Plaintiffs/Respondents
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