Asaam And Another Vrs Ghana Railway Coperation (CA. 27/2003) [2004] GHACA 30 (05 February 2004);

Flynote: 

IN THE SUPERIOR COURT OF JUDICUTURE

IN THE COURT OF APPEAL

ACCRA – GHANA, A.D. 2004

 

 

                                               CA. 27/2003

              5TH FEBRUARY, 2004

 

 

CORAM  -

LARTEY, JA

ANSAH, JA

ADDO, JA

 

WILLIAM ASAAM & OR.               …    PLTS/RESPONDENTS

 

            V e r s u s

 

GHANA RAILWAY CORP.             …      DEFTS/APPELLANTS

 

                             J  U  D  G  M  E  N  T

 

ANSAH, JA.

 

This is an appeal against a decision of the High Court, Sekondi, and dated 20 February 1998. 

As per their writ of summons, the plaintiffs claimed jointly and severally against the 1st and 2nd defendants:

  1. “An order for reinstatement of the 1st plaintiff as the Financial

Controller of the 1st defendant Corporation.

  1. An order for the payment arrears of salaries and allowances

From the 24th January 1991 to date of judgment or retirement.

  1. General damages for ‘mental stress and shock’ and

Alternatively.

The enforcement of the award made by the Commissioner for Human Rights and Administrative Justice dated the 15th day of June 1995”

At the end of the trial, the court found the evidence of the plaintiffs and  their witnesses ‘overwhelming and incontroverted’ and held that they were entitled to the claims against the defendants ‘jointly and severally.’  Save relief 1 above that was dismissed, the court awarded on relief 2, (a) the sum of  was dismissed, the court awarded on relief 2, (a) the sum of ¢2,496,030.00 at the present bank rate from 22/9/93 to 20/2/98.

On relief (iv), the court made the following awards:

(a)  The sum of ¢2,496,030.00 at the present bank rate from 22/9/93 to 20/2/98.

On relief (iv), the court made the following awards:

  1. The sum of ¢10,000,000.00 to 1st plaintiff for ‘pain and suffering and

Loss of amenities of life.’

  1. The sum off ¢ 14,000,000.00 being general damage to 2nd plaintiff.
  2. The 1st and 2nd plaintiffs had their costs assessed at The 1st and 2nd plaintiffs had their costs assessed at ¢1,200,000.00 and ¢1,200,000.00 and ¢1,300,000.00 respectively.

It is against this judgment that this appeal has been brought to this court the following grounds:

  1. “The trial judge’s order for payment of interest on salaries when the

plaintiff’s did not make a claim for interest was erroneous.

  1. The trial judge erred when he made an order against the 1st and 2nd

Defendants jointly and severally when that was not the claim of the 1st and 2nd plaintiffs.

  1. The trial judge erred when he made an order of General damages for

Pain and suffering when the plaintiff did not make a claim for such.

  1. The trial judge erred when he applied the provisions of the 1992

Constitution to a matter that occurred in January 1991.

  1. The trial judge erred when he held that the 1st defendants were bound by  terms of a CHIRAJ decision to which 1st defendant was not a party.
  2. The costs awarded the plaintiff were excessive.”      /2.

In this appeal, only grounds (a), (b), (c) and (f) were argued, meaning that grounds (d) and (e) were abandoned.  This appeal would therefore be limited to these grounds.  Before any consideration is given to the grounds of appeal, it is necessary to take a brief look at the facts of the case.

They were that the plaintiffs were a married couples.  Whereas the 1st was the Financial Controller of the defendant Corporation, the second traded in children’s wares.  According to the 1st plaintiff he received a letter from the then PNDC Secretary for Transport and Communication on 24th January 1991, directing him to proceed on an indefinite leave pending

                         investigations into some transactions in the Ghana Railway Corporation

                         involving the 1st plaintiff.  He was further to receive only 30% of his

                         salary per mensem.  The letter also froze the bank accounts of the

                         plaintiffs.

                                    Subsequently, the government set up a two-man investigating

Committee into the allegations.  The Committee exonerated the 1st plaintiff of all malfeasance. A Parliamentary Public Accounts Committee also confirmed the report.  The 1st plaintiff might have thought that with those favorable reports, his plight was going to end.  He was disappointed; he still staggered under the indefinite leave, and continued to receive the diminished monthly salary.  He therefore petitioned the CHIRAJ for redress.  CHIRAJ heard his petition and ordered his re-instatement, a defreezing of heir bank account and interest paid on all monies frozen for the period.Furthermore,CHIRAJ ordered the defendants to pay ¢10,000,000.00 to the 2nd plaintiff to enable her re-start her business.  The defendant failed to carry out the recommendations of CHIRAJ, whereupon, the respondents took the action for the relief’s above-mentioned.                                                        

          When the plaintiffs closed their case, the defense merely tendered  

Vouchers signed for moneys received by the 1st plaintiff in evidence as exhibits from the bar.  Apart from cross-examining the plaintiffs and  their witnesses, they offered no other evidence, oral or documentary.  At  the end of the trial, the learned trial judge found for the plaintiffs and made the awards mentioned above.  The defendants have brought this appeal and I shall henceforth call them the appellants, and the plaintiffs, the respondents.

          The first point for our consideration is the first ground of appeal.  A perusal of the records shows that the respondents did not endorse their writ of summons with a claim for interest.  Nevertheless, the trial judge awarded the sum of.   Nevertheless, the trial judge awarded the sum of ¢2,496,030.00 with interest thereon at the present bank rate from 22/3/93 to 20/2/98.  Will this failure to claim interest invalidate the award made

in their favour?

          The appellant submitted that this being a Master-Servant relationship case, even if the 1st respondent was entitled to any salaries and allowances, it should be according to what the terms and conditions of service were. were cited in support Morgan v. Parkinson Howard Ltd. [1961] 1 GLR 58 and Ijanyi & Others v De Simone Ltd [1989-90]1 GLR 133 were cited in support; so that the respondents were not entitled to anything more than what their conditions of service gave them.

          The answer to this line of arguments by the appellant can be found from a consideration of the rationale for awarding interest on any sum of money due the victorious party in a trial, and to a large extent the law on the subject.  The Courts {Award of interest} Instrument, 1984 {LI 1295}, empowered the court to award interest on any sum of money due a victorious party. It follows then that whether or not to award interest on a sum of money that the court has found due a party, is a matter for the discretion of the court.  Besides that, the general rule is that interest is payable when the parties agree in their financial dealings that it would be paid.  The agreement may be express or implied {see Ghana Commercial Bank v. Odum {1975}2 GLR 54, CA.  Where the payment of interest by the agreement of the parties, the practice is that the claim must be endorsed  on the writ and approved by evidence:  Diab v. Quansah {1974} 1 GLR 101, Heloo v. Tettey {1992} 2 GLR 112.

          It is not wholly true therefore, that interest on the sum of money the court awarded the 1st respondent for his arrears of salaries and allowances should have been claimed or endorsed on the writ of summons before the court award it.  LI 1295 gives power to the court to make that award.  It was legally permissible for the court to make that award, whether such a claim was made or not. I think the trial judge exercised the discretion he had in the matter properly and there is no reason in law to interfere with the exercise of that discretion.  It is very much when it is considered that as a general proposition of law, interest in awarded to the plaintiff not as compensation for the damage done but for being kept out of money which ought to have been paid him, per Lord Catham and Dover Railway Company v. South Eastern Railway Company {1893} AC 437.  Locally decided cases like Ghana commercial Bank v. Binoo-Okai {1982-83} GLR 74 and Royal Dutch Airlines {KLM} v. Farmex Limited {1989-90}2 GLR 623 emphasize the power of the court to award interest on sums of money found due to a successful party

That is irrespective of whether or not he claimed it.  |That ground of appeal therefore fails.

          Another ground of appeal was that the costs of That is irrespective of whether or not he claimed it.  |That ground of appeal therefore fails.

          Another ground of appeal was that the costs of ¢1,200,000.00 and ¢1,200,000.00 and ¢1,300,000.00 awarded the respondents were excessive.  Order 65 rule 1 of the High Court {Civil Procedure} Rules, 1954, {LN 140} A, says in clear terms that ‘Subject to the provisions of these rules, the costs of and incidental to all proceedings in the Supreme (High)  Court, shall be in the discretion of the Court of Judge.’ Like all discretions, it must be exercised judicially and on fixed principles, that is, according to rules of justice and reason.  The judge may depart from the rule where the circumstances of a particular case demand it.  An appeal may lie against it.  Where a party succeeds in enforcing or establishing a legal right, then as a general rule, he is entitled to his costs, so that a winner is entitled to his costs.  In this case, having regard to all the facts and circumstances, it is difficult to agree that the costs were excessive.

          Where an appellant alleged that costs awarded against him were excessive, the onus was on him to show that the judge wrongly exercised his discretion in the particular case, see Nartey Tokoli v. Volta Aluminium Company Limited {1987-88} 2 GLR 532 CA. In Asibey v. Ayisi III Company Limited {1973} 1 GLR 102, the Court of appeal said at page 123, when an appellant complained against the award of costs against him on the ground that it was excessive, that it would only review the discretion of the judge if it was exercised on material that was illegitimate, or violated some principle of substantive right.

          An Appellate Court would interfere with the award of costs if it were proved to be excessive.  Cost would be excessive having regard to all the circumstances of the particular case, which might include the length of the trial, the number of witnesses called by both sides, the industry put in by counsel, and the complex nature       of the issues involved in the matter.  The conduct of parties and/or their counsel may also be considered; the list is by no means exhaustive.  Cases like Guardian Assurance Company Limited v. Agbematu {1972} 2 GLR 337, Bank of Ghana v. Nyarko {1973}2 GLR 265, Laryea v. Oforiwah {1984-86}2 GLR 413, buttress these points.  In this case, the respondents issued the writ of summons on 7-5-96, summons for direction settled on 17-7-96.  It was only on 13-5-97 that the first respondent gave evidence; counsel’s address was on 10-11-97, and judgment delivered on 20-2-98.  The trial lasted for a period of almost two years, and the appellant did not show to the satisfaction of this court why he thought the costs were excessive.  In matters of this nature, it is not enough for the appellant to merely allege that costs awarded were excessive.  He must, in addition, and more importantly, demonstrate why he made that allegation.  In this case, the appellant made no such effort; we ourselves have no reason under the circumstances to say that the costs awarded were so excessive as to permit us to interfere with the exercise of the discretion that the judge had in the matter.  That ground of appeal fails and is dismissed.

          The appellant also argued that the judge erred in awarding

          The appellant also argued that the judge erred in awarding ¢10,000,000.00 damages for the 1st respondent for ‘pain and suffering and loss of amenities.’  The basis for the award, according to the judge, was that contrary to the submission by counsel for the appellant, that the 1st respondent’s ‘stroke’ could not have been by the fact of his indefinite interdiction, ‘the incident was such as to be able to cause emotional stresses on the 1st plaintiff and to become bedridden with a stroke’ with other consequential effects on the plaintiff.’  Counsel for the appellant submitted that in Master-Servant relationships any awards made must be consistent with the terms and conditions of service.  Furthermore, such awards as were made by the trial judge applied where one party committed a tort against another person.  In this case there was no evidence that the 1st respondent, by his acts or omissions or both, caused any injury or damage to the life or limb of the 1st respondent, or caused his the sexual impotence for which such an award should be made in his favour.  Counsel for the respondents submitted the contrary.

          This ground of appeal raises the legal issue as to whether or not this head of damages was allowable.  The answer was provided in the old English case of Addis v. Gramophone Company Limited {1909} AC 488, HL. The brief facts were that the defendants employed the plaintiff on the term, among others, that he could be dismissed by a six months’ notice elapsed and another person had been appointed to act in his stead as a manager, the jury found for the plaintiff for breach of contract and awarded The brief facts were that the defendants employed the plaintiff on the term, among others, that he could be dismissed by a six months’ notice elapsed and another person had been appointed to act in his stead as a manager, the jury found for the plaintiff for breach of contract and awarded £600 in respect of wrongful dismissal. On appeal to the House of Lords, the issues were whether the award was intended to include salary for the six months, or merely because of the abrupt and oppressive way in which the plaintiff’s services were discontinued, and the loss he sustained from the discredit thrown upon him.  Lord Loreburn LC answered the question raised at page 491 thus:

          “If there be a dismissal without notice the employer must pay an indemnity; but that indemnity cannot include compensation either for the injured feelings of the servant, or for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment.” 

          His Lordship disallowed the award of £600 that was awarded for the injured feelings of the servant.  Concurring, Lord James of Hereford said at page 492 that “such damages cannot be recovered in an action of contract as distinguished from tort.”

          Lord Atinson said that the damages the plaintiff sustained were “(1)  the wages for the period of six months during which his formal

         would have been current;

  1. the profits or commission which would in all reasonable probability,

have been earned by him during the six months had he continued

in the employment; and possibly

  1. damages in respect of the time which might reasonably elapse

before he could obtain other employment,” see page 493.                   

          He doubted at page 494 if there was any authority for proposition

That ‘exemplary damages’ might be recovered for wrongful dismissal.

It was only Maw v. Jones 25 OBD 107 that decided that a false charge might aggravate the damages in a case of a wrongful dismissal. Addis v. Gramophone (supra) did not approve of Maw v. Jones (supra).

In Ghana, how much is die an employee for wrongful dismissal has been determined in Nartey-Tokoli v. Volta Aluminum Co. Ltd. (No. 2), SC {1989-90}2 GLR 344 where the SC said as per the head notes at page 344 that,

  1. “The measure of damages for wrongful dismissal from employment was

                      not confined to loss of wages or salary but in addition the employee

                       was to receive his entitlements under the contract of employment.  The

                        plaintiffs were therefore entitled to receive their salaries from the dates

                        they ceased to receive them to the dates of their respective de facto

                         termination, including an additional twelve months’ salary………

                         as damages for wrongful dismissal.

                        As the termination of their employment was held to be void., and of no                                  legal effect they remained employees de jure and would therefore be

entitled to earned leave allowances, bonus, long service awards, including food packages and all other benefits said to be enjoyed on a so-called gentleman agreement basis;  all of which should be converted into cash if feasible as at the respective dates of the plaintiff’s de facto dismissal.  They were to receive their entitlement under article 40 of the collective agreement…..”

Nartey-Tokoli v. Valco (supra), cited, approved and applied Hemans v. Ghana National Trading Corporation {1978} GLR 4, and Ghana Cocoa Marketing Board v. Agbettoh {1984-86} 1 GLR 122, CA.

This last case laid it down by way of emphasis that the normal remedy open to a servant who was dismissed or removed in breach of his contract of service was pecuniary damages, but that that was not an inflexible rule because besides the terms of the contract, legislation may also determine it.  I think this is the measure of damages the trial judge ought to have applied in this case.  That most certainly did not include damages for pains and suffering and or loss of amenities of life.

These were aggravating circumstances that took place after the dismissal but there was no evidence that they would not have occurred but for the dismissal.  For after all there many workers in employment who suffer from that malady.  No evidence was led to show that that was a kind of malady that afflicts those who are wrongfully dismissed from their employment either.  In my view, the first respondent should have led medical evidence to establish that he suffered from a stroke as a result of the dismissal and that in turn rendered him incapable of sexual performance.  His sexual problems or non-performance as result of his stroke were remotely connected with the dismissal in the absence of any medical proof and ought to have been disregarded in the computation of damages.  There was no proven nexus between the two.  I make bold to say that these are allowable in tort for non-pecuniary loss in personal injury cases.  But this was an action for breach of contract and not tort.  I think the award for damages under those heads in relief 3 above was wrong, as neither authority, principle, statute, nor the agreement by the parties to the contract covered it.  I dismiss it as wrongly made.  To that extent and for that reason ground (c) of appeal is allowed.

            Also, all said and done on this ground, it is clear that the plaintiff simply claimed ‘general damages for mental stress and shock’ and without any amendment being granted, it was wrong in the first place for the judge to have awarded damages for ‘pain and suffering and loss of amenities of life.’

Conceptually, the two are not or synonymous to each other.

Admittedly, as per the endorsement on the writ of summons, the respondents did sue jointly and severally.  At the trial, no objection was raised against the claim and the trial judge held that the respondents were entitled to their claims jointly and severally.  It was therefore factually incorrect for the appellant to complain that the respondents did not claim ‘jointly and severally.’ In law,

“4(1)  Subject to rule 5(1), two or more persons may be joined together in the same action as plaintiffs or as defendants with the leave of the Court or where-----

  1. if separate actions were brought by or against each of them,

as the case may be, some common question of law or fact would arise in all the actions; and

  1. all rights to relief claimed in the action (whether they

are joint, several or alternative) are in respect of or arise out

of the same transaction or series of transactions.”

A plaintiff, or two or more plaintiffs may join more than one cause of action against a defendant or more than one defendant under Order 15(1) of the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 1977, LI 1129.  That is where the plaintiff or the plaintiffs claimed and the defendant is or defendants are alleged to be liable in respect of all the causes of action.  In law, it is perfectly permissible to join causes of action and parties in one action and this was irrespective of whether or not the reliefs were claimed jointly, severally or in the

alternative.  At the trial, each plaintiff was required to prove his case against the defendants or each defendant with positive and credible evidence.  A party would be entitled to his or her claim depending on (1) whether or not he has a cause of action against a defendant, and (2)  how far he succeeded in making out a case against the defendant.  A party has a cause of action when he was able to allege all the facts or a combination of facts necessary to establish his right to sue.  Lord Esther MR in Read V. Brown)22 (1888) OBD 122 at 131, CA, defined a cause of action as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.”  In Williams v. Milotin (1957) 97 CLR 465, it was said at p. 474 that:

“When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce in an action….”

Reference must also be made to  (Spokesman) (Publication Limited v. Attorney General {1974} 1 GLR 88 at 91.

            It is always necessary to determine what the gist of the particular action is for this will in turn determine the facts the plaintiff shall have to prove to the satisfaction of the court in order to secure or win the verdict of the court.

In this case, the gist of the action from the statement of claim and the evidence was that, the first respondent complained that he was wrongfully dismissed from his employment.  The cause of action by the 2nd respondent was that even though she was not employed by the appellants, her accounts were frozen in the letter that ordered the 1st respondent to proceed on an indefinite leave pending investigations.  When the appellants denied these, it cast the duty on the respondents to prove their respective cases against the appellants. On the plain evidence in this case, the first appellant did not dismiss any of the respondents.  In fact the letter in Exhibit A emanated from the Ministry of Transport and Communications.  It was signed by the PNDC Sector Secretary and it froze his bank account and that of his wife with immediate effect. The respondents did not lead a tittle of evidence to show that it was the Ghana Railway Corporation that did any of those acts they complained of as giving them any cause of action or that the acts of the Ministry of Transport Communications and Transport were those of the first appellant Ghana Railway Corporation.  As such the respondents were not entitled to recover judgment against the first appellant for, on the facts the respondents did not show that they had any cause of action against the first appellant.  The trial judge erred in holding that the respondents were entitled to their claims against the first appellant qua, the Ghana Railway Corporation.  We reverse and set aside the holding and the finding of liability against them.

            If anything at all, the proper defendant in the circumstance of the case should be the Attorney General.  Judgment should be entered against him alone.  We affirm the judgment against the Attorney General.

            Subject to the above, we dismiss the appeal.

 

             

 

                                                                           J. ANSAH

                                                                      JUSTICE OF APPEA

 

 

 

I agree                                                                                          F.M. LARTEY

                                                                                                 JUSTICE OF APPEAL

 

 

 

I also agree                                                                                    E.A. ADDO

                                                                                                  JUSTICE OF APPEAL