[2000]DLCA6473 Login to Read Full Case <span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="text-align:center"><b><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"; color:#00B0F0">GHANA TEXTILE PRINTING CO. LTD.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center"><b><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"; color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center"><b><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"; color:#00B0F0">SIMON ANKUJEAH & 99 ORS<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center"><span style="font-size:10.0pt;line-height:107%;font-family:"Book Antiqua","serif"">[COURT OF APPEAL, ACCRA]<o:p></o:p></span></p><p class="MsoNormal" align="center" style="text-align:center"><span style="font-size:10.0pt;line-height:107%;font-family:"Book Antiqua","serif"">CIVIL APPEAL NO. 117/99 DATE: 6TH JULY, 2000.<o:p></o:p></span></p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt; border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none; padding:1.0pt 0in 1.0pt 0in"> <p class="MsoNormal" style="text-align:justify;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"><b><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"">CORAM:</span> <o:p></o:p></b></p> <p class="MsoNormal" style="text-align:justify;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"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">MRS. WOOD J.A. (PRESIDING), TWUMASI J.A., BROBBEY J.A<o:p></o:p></span></p> </div><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" align="center" style="text-align:center;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in; mso-border-between:1.5pt solid windowtext;mso-padding-between:1.0pt"><b><span style="font-size:12.0pt;line-height: 107%;font-family:"Book Antiqua","serif"">JUDGMENT<o:p></o:p></span></b></p> </div><p class="MsoNormal" style="text-align:justify"><b><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"">MRS. WOOD, J.A.<o:p></o:p></span></b></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif""> Following the restructuring of the defendant appellant Company in 1994, the plaintiff respondents were declared redundant and paid severance benefits in accordance with the prevailing collective agreement. Each respondent therefore became entitled to “Two months consolidated basic pay for each year of service, effective 1st January, 1961 to the date of redundancy”, However, contending that the awards were void, unlawful and of no legal effect, in that they violated the clear, mandatory provisions of the Labour (Amendment) Decree, 1969 NLCD.342, the respondents, severance compensation with effect from the date each plaintiff commenced work with the defendant company as employed up to 31st December, 1990. <o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">2. Interest at prevailing bank rate from 1st February, 1994 to date of payment. <o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">3. An order directing defendants to immediately negotiate the severance compensation with the plaintiffs for the period of service of each plaintiff before 1st January, 1991, failing which the Honourable Court could itself determine a fair and just compensation for the period concerned.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif""> The appellants raised two matters in defence to the substantive claim. These are contained in their original and unamended statement of defence. Firstly, that the quantum of severance award is not fixed by statute, but was a matter of negotiation. And consequently, as the respondent were all duly paid in accordance with the negotiated provisions of the existing, valid, collective agreement, they are estopped from any further claims. <o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">Secondly, that the claim was statute barred. The learned trial judge however found the claims proved and entered judgment in favour of all the respondents on all the claims sought, together with costs of ¢10 million. In this appeal, as many as ten grounds were urged upon six of which original grounds A, B and C and additional grounds (1), (2) and (3) were argued together. My own view is that the latter, i.e. the additional grounds are a duplication of the original grounds of appeal. Therefore, rather than reproduce all six grounds of appeal, I would under the circumstances quote in extense only the additional grounds 1, 2, & 3 which in my humble estimation is the more comprehensive of the two.<o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify"><i><span style="font-size:12.0pt;line-height: 107%;font-family:"Book Antiqua","serif""> “1. The trial court erred when it held that section 34(2) of the NLCD.157 as substituted by NLCD.342 provided a mandatory statutory formula which employers and employees were bound to take into account when negotiating in respect of the time period that was to form the basis of the computation of severance payments. <o:p></o:p></span></i></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify"><i><span style="font-size:12.0pt;line-height: 107%;font-family:"Book Antiqua","serif"">2. The trial High Court erred when it held that article 36 of Exhibit ‘A’ was void as being inconsistent with the provision of section 34(2) of NLCD.257 as amended.<o:p></o:p></span></i></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify"><i><span style="font-size:12.0pt;line-height: 107%;font-family:"Book Antiqua","serif""> 3. The trial High Court erred when it upheld the plaintiffs claim for the payment by the defendant company to each of them of severance pay from the date each plaintiff commenced work with the defendant company as employee to 31st December, 1990.”<o:p></o:p></span></i></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif""> Before proceeding to determine the questions raised by these grounds of appeal, we must, I think address an important preliminary issue raised by the respondent to the hearing of this appeal. The issue is would the appellant failure to file a written submission of his case within the time stipulated under the rules mean the said appeal is deemed to have been struck out and there is therefore no appeal pending with respect to this matter? <o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">The Court of Appeal Rules, 1997, C.119 has been amended by C.125, by the substitution for subrules (1), (2) and 19 of rule 20 with the following: “120(1). An appellant shall within 21 days of being notified in form 6 set out in part 1 of the Schedule that the record is ready or within such time as the court may upon terms direct, file with the Registrar, a written submission of his case based on the grounds of appeal set out in the notice of appeal and such other grounds of appeal as he may file. Where the appellant does not file the statement of his case in accordance with subrule (1), the registrar shall certify the failure to the court by a certificate as in Form 11A in part 1 of the schedule and the court may upon that order the appeal to be struck out.”<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif""> From the above amended rules, I do not think there is an automatic “striking out” or loss of an appeal, even in event of a non-compliance with the rule 20(1) of C.I.19 as amended by C.125. The subrule (2) enjoins the registrar as a first step to certify the non-compliance to the court, whereupon the court may (not shall) exercise the striking out option. Therefore, even in cases where there has been due notification of the non- compliance to the court, (and that is not the position in this instant case), the power conferred is permissive not mandatory. However, on the facts of this case, the registrar has not certified the non-compliance and this court has made no order striking out the appeal. Since the appeal has not been struck out, it must be deemed to be pending. In any event, even if the invitation to strike out is now being extended to us, I am not minded, in the exercise of my discretion to apply this extreme sanction. I think this penalty of stricking out an appeal for non-compliance under rule 20(1) of C, 125 and not hearing it on the merits must be exercised with caution. It must be employed in plain and obvious cases where in all the circumstances, it would be unjust to do otherwise, circumstances I believe, like the period of delay, the nature of the questions raised by the appeal in question—its importance or otherwise etc. There are ways by which a respondent who has suffered as a result of a delay on the appellants part may be compensated and the hearing expedited. In this instant case however the following factors—the length of time this appeal has been pending, but notably the serious and substitutial questions of law raised by it, not to mention the crucial fact that the respondents themselves upon being served with the record complained about its incompleteness and called for its rectification, have constrained me from striking out the appeal. In any case, it seems to me that it is implicit (in the rules) that the 21 day limit under the rule, would begin to run only where record of appeal is complete and faultless. To my mind then, where a party, particularly respondent, as happened in this instant case, complains to the registrar or the court about ommissions or inaccuracies in the record and demands that those be rectified, then time ought not to run until either those anomalies have been corrected, or the party wit