NARTEY TOKOLI AND OTHERS vs. VOLTA ALUMINIUM CO. LTD. (NO. 2) [1990]DLSC6117

Date	1990-03-08
Suit No.	[1989-90] 2 GLR 341
Citation No.	[1990]DLSC6117

TAYLOR JSC

FRANCOIS JSC

AMUA-SEKYI JSC

OSEI-HWERE J.S.C.

OFORI-BOATENG J.A.

JONES-MENSAH (WITH HIM D. K. LETSA) FOR THE APPELLANTS.

H. E. BANNERMAN (WITH HIM GEORGE THOMPSON) FOR THE RESPONDENTS.

[1990]DLSC6117
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													<main id="main" class="content" style="min-height: 60rem" >NARTEY TOKOLI AND OTHERS<o:p></o:p>vs.<o:p></o:p>VOLTA ALUMINIUM CO. LTD. (NO. 2)<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1989-90]
2 GLR 341&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 8th MARCH 1990<o:p></o:p>

H.
E. BANNERMAN (WITH HIM GEORGE THOMPSON) FOR THE RESPONDENTS.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>TAYLOR
J.S.C <o:p></o:p>I wish to preface this
judgment by making some remarks, even if it is considered to be unnecessary,
about the rational foundation of our system of justice. The beauty of the
judicial system which we have operated in this country for over 100 years, even
before our Supreme Court Ordinance of 1876 came into force, is that we do not
cause parties before us to suffer in their person or pocket without assigning
what in our honest view are adequate and convincing reasons why they should be
so damnified. And in order to ensure that we do this properly a system of
appeals to courts in ascending order of authority has been devised so that,
seeing that to err is human, mistakes made by our courts are corrected. <o:p></o:p>So ingrained, indeed, is
this desire to do justice and eliminate human error that as recently as 26
November 1987, in a landmark decision in Fosuhene v. Pomaa [1987-88] 2 G.L.R.
105, S.C. which is considered in some quarters as revolutionary, we spelled out
the circumstances under which we in the very top hierarchy of our judiciary
were willing to review even our own errors. I have adverted to this matter
because the judgment of the High Court in the case before us was neither fully
confirmed by the Court of Appeal nor unanimously rejected by that court. And the
eternal search for justice which brings the case now before us as a final
appellate court is best vindicated no matter our decision if the consideration
which animates our task and dominates our reasoning is fully appreciated by all
who appear before us. Justice in our system is best administered when the
considered decisions of judges which are challenged, are exposed to the
scrutiny of other judicial minds equally conversant with the legal principles
at stake. <o:p></o:p>The case before us now is
a dispute involving the duties, liabilities and obligations attaching by law to
the master-servant relationship. Its regrettable feature is that through no
fault of the master or the servant, a situation has arisen which has generated
grievances and led the master and the servant to the law courts.<o:p></o:p>Without a deep
appreciation of the law on the matter and a firm grasp of the facts in issue,
it is difficult to imagine, given the arguments of the parties, in what manner
the judicial process can operate to do substantial justice to all the parties. <o:p></o:p>This is a hard case, and
it leads me to reflect on what the great American judge and jurist, Holmes J.,
must have had in mind when in his dissenting opinion in Northern Securities
Company v. United States 193 U.S. 197 at 400, he observed that “hard cases make
bad law.” The case is intriguingly simple and yet paradoxically it is
intrinsically complex, for this reason it appears to me that, the first step in
a rational resolution of the matters in controversy between the parties demands
a narration in appropriate details of the facts and circumstances which are at
the centre of the dispute. In that exercise, I propose to refer to the servants
as plaintiffs and the master as the defendant or defendants. <o:p></o:p>And so I proceed now to
what I consider the relevant facts. The defendants herein, the Volta Aluminium
Co. are a limited liability company operating in Tema and relying extensively
on electricity generated by the Volta River Authority for smelting alumina into
aluminium. The plaintiffs are employees of the defendants who are popularly
referred to as Valco. Their conditions of employment are spelt out in a
collective agreement with Valco entered into on their behalf by their mother
union, the Industrial and Commercial Workers Union (I.C.U.), in accordance with
the provisions of the Industrial Relations Act, 1965 (Act 299). The proximate
facts leading to the instant litigation arose because the low level of water in
the Volta lake following the severe droughts in the country in 1982 led to a fall
in the electricity supply in the whole country. In the circumstances the
defendants averred that the electricity suppliers, the Volta River Authority,
by reducing their supply in order to conserve electricity compelled them in or
about the first week of October 1982 to close down two out of their five
pot-lines by 1 November 1982. This meant a 40 per cent loss of income to the
defendants and a reduction in their aluminium production. The situation saddled
the defendant-company with an excess labour force and compelled them in the
last few weeks before 18 October 1982 to deliberate on ways and means of
shedding their excess labour force if the company were to survive. Under the
pressure of these events, the company apparently requested a meeting with the local
union and representatives of the Valco Workers Defence Committee at their
conference room on 18 October 1982 and put forward before them a six-point
proposal to solve the problem of, as the company put it, “the excess employees
that the company would not have jobs for as a result of . . . the 40 per cent
cut back in production capacity.” The company’s six-point proposals are as
follows:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>“1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Valco agrees to loan to these employees
an amount of money equal to 200 per cent of their monthly base pay for each
completed year of service.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Place each of these employees on leave
of absence from 1 November 1982.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; During the period, these employees
will be encouraged to use the loan for farming or other profitable ventures in
the national interest.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>