GHANA TEXTILE PRINTING CO. LTD. vs. SIMON ANKUJEAH & 99 ORS [2000]DLCA7111

Date	2000-07-06
Suit No.	CIVIL APPEAL NO. 117/99
Citation No.	[2000]DLCA7111

MRS. WOOD J.A. (PRESIDING)

TWUMASI J.A.

BROBBEY J.A

[2000]DLCA7111
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													<main id="main" class="content" style="min-height: 60rem" >GHANA TEXTILE PRINTING CO. LTD.<o:p></o:p>vs.<o:p></o:p>SIMON ANKUJEAH &amp; 99
ORS<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. 117/99&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:&nbsp; 6TH JULY, 2000.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">MRS. WOOD J.A. (PRESIDING),
TWUMASI J.A., BROBBEY J.A<o:p></o:p>

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mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>MRS. WOOD, J.A.<o:p></o:p>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>2. Interest at prevailing
bank rate from 1st February, 1994 to date of payment. <o:p></o:p>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>&nbsp;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>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, &amp; 3 which
in my humble estimation is the more comprehensive of the two.<o:p></o:p>&nbsp;“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>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>&nbsp;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>&nbsp;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>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>&nbsp;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 appe</main>