Ayitey Vrs Gihoc Distelleries (H1/174/2004) [2005] GHACA 20 (21 July 2005);

Flynote: 

 

IN THE SUPERIOR COURT OF JUDICATURE,

IN THE COURT OF APPEAL

 

 

CORAM  -   AKOTO-BAMFO, JA

                     ASARE KORANG, JA

                     OSEI, JA                                                                        H1/174/2004.

                                                                                                  21ST JANUARY, 2005.

 

 

SHERRY AYITEY                               …        PLT/APPELLANT

         VRS.

GIHOC DISTILLERIES CO. LTD.   …        DEFT/RESPONDENT

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                                               J U D G M E N T

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AKOTO-BAMFO, JA-  On the 13th of September 2001, the appointment of the plaintiff/appellant (who we shall hereafter call the plaintiff) was terminated after having been asked to proceed on leave in February 2001.              

         Being naturally unhappy at the turn of events, she caused a writ of summons to be issued against GIHOC Distilleries the defendant/respondent, who, for ease of reference, shall be called the defendant claiming, inter alia, for a declaration that the termination was unfair/wrongful, alternatively that the termination was in breach of her fundamental human rights and Articles 23 & 191 of the 1992 Constitution of the Republic of Ghana.

         Perpetual injunction against the defendants, their agents and servants from interfering with the performance of her functions as Managing Director and enjoyment of fringe and other benefits attached to the office as Managing Director.

        The defendant resisted the plaintiff’s claim and filed a statement of defence essentially denying that the termination was either wrongful or unfair.

        The plaintiff subsequently prayed the court to restrain the defendant, its workers and agents from interfering with the enjoyment of all the benefits or perks attached to her office as Managing Director prior to the termination until the determination of the suit.

        The thrust of her case was that while the suit was pending, the defendant had stopped according to her benefits attached to her office as Managing Director and was

 

 

threatening to eject her from the premises she occupied as M.D., that since the issues were yet to be determined, it was imperative that the status quo be maintained.

         In opposition, the defendant urged the court to refuse the application.  The gist of its case was that since the only remedy available to the plaintiff in the event of her succeeding would be damages, it would be inappropriate to grant the prayer.

         On the 14th of December 2001, the Learned Judge gave a ruling in favour of the defendant.  It is a very short ruling.  I therefore wish to reproduce same.

        “The Court is of the opinion that the plaintiffs’ motion should be dismissed on the grounds that the plaintiff is not a public servant within the meaning of the 1992 Constitution.  The only legal remedy available to her in the event of her action succeeding will be damages and not injunction.  Where remedy is available to an applicant is damages, the court will not grant an injunction.  In the circumstances, the plaintiff’s motion will be and is hereby dismissed.”

          It is obvious that the plaintiff was dissatisfied with the ruling for on that same day she lodged an appeal against same.  She mounted the attack on these fronts:

  1. The Learned High Court Judge erred in dismissing the appeal on grounds that the

appellant is not a public officer and so not entitled to her rights of employment under the Constitution.

  1. The Learned Judge erred in law in dismissing the application without regard to

her rights under the Companies Code.

  1. The Learned Judge erred in law in making a declaration that her employment

             is simply a common master-servant relation.

  1. The Learned High Court Judge misapplied the legal and factual issues involved

in the application for interlocutory injunction and erred in dismissing it.

      (5)  The judgment is against the weight of affidavit evidence placed before the Court.

          Before going into the merits of the appeal; I wish to comment briefly on the written submissions of both learned counsel.

          Under Rule 8(2)(a) of C.I. 19, an appellant is required to set out the grounds of appeal.

          Indeed sub rule (5) of Rule 8 imposed a duty on an appellant to set out concisely and under distinct heads the grounds upon which he intends to rely at the hearing and to number same consecutively.

         Upon being notified in Form 6 that the record is ready, an appellant is required under Rule 20 of C1. 19 to file with the Registrar a written submission of his case based on the grounds of appeal as set out in the Notice of Appeal.

        It is evident from the foregoing that the written submissions must follow a certain pattern  that is; each ground must be taken and arguments thereunder set out and numbered accordingly.  A look at both submissions shows that the rules were blatantly flouted.  It is pertinent to note that the rules were couched in mandatory terms and counsel therefore had no alternative but to comply with same.

          Be that as it may, we proceed to consider the issues raised.

Learned Judge Counsel for the plaintiff submitted that the Learned Judge lost sight of her duty at that stage of the proceedings, since the only factor which should have weighed upon her was whether the plaintiff’s claim was frivolous and vexatious and; that she proceeded to determine the issue as to whether or not the plaintiff is a public officer without adverting her mind to the meaning of a public officer as given under Article 295(1) of the 1992 Constitution.

          It was further submitted that the court failed to appreciate the fact that the appellant held office by virtue of the Regulations of GIHOC Distilleries and since the Board was not legally constituted, the letter of appointment was of no effect.

          In reply, learned counsel submitted since under Article 190 (1) only Public Corporations other than those set up as commercial ventures qualified as Public Services, the defendant having been set up as a Commercial Venture did not belong to the class of Public Services and therefore the remedy of injunction was not available to the Plaintiff.

         It must be emphasized that the merits of the case are yet to be gone into.

         It is a cardinal rule that a litigant who seeks a preliminary injunction must show a reasonable probability of success  on the litigation; in other words she must pass the likelihood of succession on the merits test.

        In the supporting affidavit, the plaintiff averred inter alia that she had had a long fruitful relationship with the defendant and that it would be unjust if she were denied the perks  of her office before the determination of the suit and more importantly that should she be removed from the official residence before the hearing, that she would be handed an empty victory should the judgment go in her favour.

        It is common learning that the factors which should weigh on a Court in making interim orders, aside from likelihood of success on the merits test; (i.e. that she has a prima facie case), the court must be convinced that it is just and proper to grant the application having regard of the relative convenience or inconvenience that the parties will have to put up with if the order were made.

         Ordinarily, a court of law would not grant a declaration that a dismissal of a servant even if wrongful is a nullity and void nor would it seek to restrain a threatened dismissal by the equitable remedy of an injunction in the absence of special circumstances.

         In Vine v. National dock Labour 1975 A.C. 488 H.L. Lord Keith observed,  “This is not a straightforward  relationship of master servant.  Normally and apart from the intervention of Statute, there would never be a nullity in terminating an ordinary contract of master and servant.

         Dismissal might be in breach of contract and so unlawful but could only be sound in damages.”

         It is evident that where there has been a purported termination of a contract of service a declaration to the effect that the contract still subsisted, would rarely be made and would not be made in the absence of special circumstances, since the court would not grant specific performance of a contract of service.

         The issue confronting us in this appeal is whether there are any such special circumstances.

         Whereas the plaintiff contends that she is a public officer; the defendant contends that in so far as GIHOC was set up as a commercial venture, it did not belong to the class of public services envisaged under Article 190 of the Constitution.

        In Article 190(a) of the Constitution the Public Services were set out.

        In 190(1)(b) appears the following”  Public Corporations other than these set up as Commercial Venture.

The 1st hurdle to be cleared is whether the defendant was set up as a Commercial Venture.  If the answer is in the affirmative; it follows that the principles of a master/ servant relationship ought to be called into play and therefore acts committed against the servant are not redressible by injunction.

        Undoubtedly GIHOC was set up as a public corporation, it had various subsidiaries, a common thread running though the activities of the various subsidiaries ws the commercial nature thereof. By Virtue of PNDC Law 324; which came into force on the 14th of March 1989, section (1) thereof  GIHOC ceased to exist as a holding corporation.

It is provided in  – See 3(1) of PNDCL 324 that the companies listed in the schedule thereof were to continue as limited liability companies but shall cease to be subsidiaries of the corporation.

          In the schedule, the 1st company listed was GIHOC Distilleries Company which is notably the defendant in these proceedings.  That GIHOC was set up as a Commercial Venture and indeed operated as a limited liability company by virtue of PNDC Law 324 is beyond question.  It is of significance that PNDCL 324 repealed  NLCD 207,  the Ghana Industrial Holding Corporation Decree.

          It is therefore manifest that there are no special circumstances and therefore simply a question of termination in an ordinary contract of a master servant relationship.  An injunction in the circumstances would be inappropriate for should her claim be substantiated same is redressible by pecuniary award.

          It is trite learning that one does not obtain an injunction for actionable wrongs for which damages  for  are the proper remedy.  Blackwell Ry v. Cross [1886] 1 Ch. D. 369. 

          Indeed in Texaco v. Baiden [1978] GLR 309.  It was held, inter alia, that the legal remedy provided by law for breaches of contract of service was damages and not an injunction; that a court would not ordinarily grant a declaration that the dismissal of a servant, even if wrongful, was a nullity unless there are special reasons.

        Having found that no such special  circumstances exist, we are of the view that the appeal lacks merits and we hereby dismiss same.

 

 

                                                                                         V. AKOTO BAMFO

                                                                                        JUSTICE OF APPEAL

 

 

 

 

 

 

 

I agree.                                                                            A. ASARE KORANG

                                                                                         JUSTICE OF APPEAL

 

 

 

I also agree.                                                                           J.A. OSEI

                                                                                          JUSTICE OF APPEAL

 

 

COUNSEL  -  D.O. LAMPTEY FOR APPELLANT.

                        B.W. TAMAKLOE FOR RESPONDENT.

 

   

 

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