NARTEY-TOKOLI AND OTHERS vs. VOLTA ALUMINIUM CO. LTD. [1988]DLCA786

Date	1988-12-20
Suit No.
Citation No.	[1988]DLCA786

WUAKU J.S.C.

AMPIAH JA

ESSIEM J.A.

KWAMI TETTEH FOR THE APPELLANT.

NII ODOI ANNAN FOR THE RESPONDENTS.

[1988]DLCA786
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													<main id="main" class="content" style="min-height: 60rem" >NARTEY-TOKOLI AND OTHERS<o:p></o:p>&nbsp;vs. <o:p></o:p>VOLTA ALUMINIUM CO. LTD. <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 532<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE
20 DECEMBER 1988<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KWAMI TETTEH FOR THE APPELLANT. <o:p></o:p>

NII ODOI ANNAN FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

WUAKU J.S.C., AMPIAH AND ESSIEM JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF WUAKU JSC.<o:p></o:p>This is
an appeal by the plaintiffs and a cross appeal by the defendants from the
judgment of the High Court, Accra presided over by Benin J. dated 12 January
1988. Throughout this judgment I will refer to the parties simply as the plaintiffs
or the defendants as the case may be. Originally the writ of summons was issued
for and on behalf of 463 plaintiffs; however by a notice dated 6 August 1987,
five of the plaintiffs withdrew from the action. By their writ of summons the
plaintiffs claim as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1)
Damages for wrongful termination of employment. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2)
Declaration that the purported termination of their employment is null and
void, is of no legal effect and ought to be vacated. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3)
Arrears of all salary, all allowances and all benefits due to the plaintiffs
from their respective dates of wrongful termination to date of judgment.”<o:p></o:p><o:p>&nbsp;</o:p>The writ
of summons was accompanied with a twenty paragraph statement of claim. I
consider it necessary to quote some paragraphs from the said statement of
claim:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) The
plaintiffs have a common grievance, and common cause of action in which they
agitate common grounds in law and in fact against the defendant-company ... (3)
Prior to 1 November 1982, 7 February 1983 and 31 December 1983, the plaintiffs
were respectively in the employment of the defendant-company in various
capacities as technicians, office workers, artisans, security men, pot- room
attendants, etc and remained in such employment until either or other of the
dates herein before referred to in this paragraph ...<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(5) The
terms and conditions of the plaintiffs’ employment with the defendants were, at
all material times, governed by a collective agreement made between the
defendant-company and the Industrial and Commercial Workers Union of the Trades
Union Congress of which all the plaintiffs are members. (6) On or about 1
November 1982, 7 February 1983 and 31 December 1983 respectively. the
defendant-company suddenly worked out a strange written programme which the
defendant-company termed ‘Leave of absence without pay/ recall programme and
served same on the plaintiffs, at the same time as they locked the plaintiffs
out of the plant- their work place. (7) To the said programmes referred to in
paragraph (6) above were attached a letter which purported that the so-called
‘Leave of absence/recall programmes’ had been worked out between the
defendant-company, the local union and the Workers Defence Committee-an organ
which had never at any time had any legal contractual relationship with any of the
parties concerned in the collective agreement which contained the terms of the
contractual relationship that existed between the plaintiffs and the
defendant-company. (8) The said letter and so-called leave of absence/recall
programme as worked out provided that the plaintiffs were each to proceed on
leave of absence without pay on either or other of the dates referred to in
paragraphs 3 and 6 herein as a result of the impending close down of a few of
the defendant-company’s potlines and that if the plaintiffs were not recalled
to the plant after a long period stretching some fourteen months from one or
other of the respective dates referred to in paragraphs 3 and 6 herein each
plaintiff was to consider himself redundant from an effective date back dated
twelve months from the respective dates referred to in paragraphs 3 and 6. (9)
The so-called leave of absence/recall programme further imposed on each and
every plaintiff, under pain of instant redundancy, an unsolicited farm loan
equivalent to the amount of money the plaintiffs would have, been paid if they
had normally to proceed on redundancy and imposed further that each plaintiff
was to consider the said farm loan as satisfying the defendant-company’s normal
redundancy obligation to each plaintiff in the event that, at long last (ie
after fourteen months) the plaintiffs were not recalled to duty from the
so-called leave without pay/recall programme by the defendant-company ... (11)
The plaintiffs, one and all, say that such spurious ‘Leave of absence/recall
programme’ were not contained anywhere in the collective agreement and that the
programmes were not contracts within the meaning of the Industrial Relations
Act, 1965, (Act 299) or otherwise in law and were in any case in conflict with
the collective agreement and in consequence void on this ground also.”<o:p></o:p>