DAN LARTEY vs. JOSEPH HYDE & CO [2005]DLCA6701

Date	2005-11-30
Suit No.	CIVIL APPEAL NO. H1/269/05
Citation No.	[2005]DLCA6701

ROSE OWUSU J.A. [PRESIDING]

ABBAN J.A.

APALOO J.A.

[2005]DLCA6701
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													<main id="main" class="content" style="min-height: 60rem" >DAN LARTEY<o:p></o:p>vs.<o:p></o:p>JOSEPH HYDE &amp; CO<o:p></o:p>[COURT
OF APPEAL, 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">

CIVIL APPEAL NO. H1/269/05&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: 30TH NOVEMBER,
2005<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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>ABBAN J.A. <o:p></o:p>This
is an appeal from a Judgment of the Circuit Court, Accra presided over by His
honour Mr. Anthony Oppong Esq. <o:p></o:p>Until
he left the employment of the Defendant/Appellant [hereinafter referred to as
Appellant], the Plaintiff/Respondent [hereinafter referred to as the
Respondent] had worked with the said Appellant for 27 years having worked with
the former from 1973 till the year 2000, He stopped working at the end of March
2000. <o:p></o:p>Appellant
is a private accounting firm doing business as chartered accountants.&nbsp; Respondent were engaged as an accounts clerk.
<o:p></o:p>Respondent
claims that at the end of his service with the Appellant, he was entitled to
End of Service Benefit which should be calculated on his salary at the end of
his service i.e. ¢600,000.00 multiplied by the number of years he had served
with the firm.&nbsp; Instead he was offered an
amount of ¢321,000.00 being his salary of ¢18,000.00 as at 31/12/90 times the
number of years that he had served as at that date i.e 17 years. <o:p></o:p>He
therefore sued for:— <o:p></o:p>[a]
A declaration that he is entitled to E.S.B. as other employees of the Company. <o:p></o:p>[b]
An order that Defendant pay the plaintiff his End of Service Benefits.” <o:p></o:p>The
trial judge entered judgment in favour of the Respondent and granted him the
reliefs he sought. Dissatisfied with the judgment, the Appellant has appealed
on the sole ground that: <o:p></o:p>“the judgment is against the weight of
the evidence”. <o:p></o:p>In
prosecuting this claim the Respondent gave evidence that he started working
with the Appellant from 1973 and stopped working with them at the end of March
2000.&nbsp; He stated that he joined the
Appellant firm on March 7, 1973 on a salary of ¢330.00 per month and retired on
a salary of ¢600,000.00 at the end of March 2000.&nbsp; The Respondent then continued that he was
"supposed to be paid his end of service benefits [ESB].&nbsp; This was to be based on the number of
terminal monthly salary times number of years served.&nbsp; I was paid the ESB but it was understated.” <o:p></o:p>That
is to say that which I was paid was not based on the right calculations.&nbsp; The respondent then tendered the document
which he claimed: “wrongly calculated my ESB as exhibit B dated April 12,
2000." <o:p></o:p>The
Respondent’s claim is that his End of Service Benefits should be based on the
consolidated salary which was introduced in 1991 January and his last salary of
¢600,000.00 per month as at the year 2000. To support his case the Respondent
called Mr. Daniel Amamoo, Executive Director of Prices and Incomes Board as his
witness.&nbsp; Under cross-examination by
counsel for the Appellant, Daniel Amamoo said in answer to a question in
respect of the conditions attached to the freezing of the End of Service
Benefits that: <o:p></o:p>“What pertained in the public and even
later in the private sector that the freezing would take effect from 31/12/90,
but accumulated ESB would be paid to officers who had earned it.&nbsp; So that there are some institutions which did
not earn anything under ESB, as part of their terminal benefits scheme, so
these officers in those institutions did not earn anything under E.S.B., but
those who had negotiated something then could have their ESB paid to them.” <o:p></o:p>Respondent’s
contention is that the formula used in calculating his retiring benefit was
wrong as two of the Appellants’ employees who left the firm in February 1992
and July 1992 had had their benefits calculated using their terminal monthly
salaries times the number of years they had served.&nbsp; He tendered the formula for the calculation
of their benefits as exhibits B, C and D. <o:p></o:p>As
stated supra, the Respondent’s witness, Mr. Amamoo [P.W.1] in his evidence in
chief had already thrown light on what ESB is and its operation.&nbsp; The witness said inter alia:— <o:p></o:p>“I
know of End of Service Benefit.&nbsp; As far
as Public Institutions are concerned it is no longer in existence.&nbsp; We do not deal with private bodies or
enterprises.&nbsp; Since 1992, it was agreed
at the National Tripartite Committee level that negotiations between private
organizations should not be handled by us. End of Service Benefit Scheme is
negotiable between the employer and the employee……….. It is a matter of
contract or agreement between the employer and the employee of any such private
organization. <o:p></o:p>To
a question:— <o:p></o:p>Q. “you could also agree with me that
those to be paid at a later date were to be paid at their salary as at
31/12/90? <o:p></o:p>A.&nbsp;
That is correct.&nbsp; However it was
further negotiated that payment made at a later date should attract the
appropriate and negotiated interest.” <o:p></o:p>The
case of the Appellant is that as an employer, the company does not have any collective
bargaining agreement with trainees and staff.&nbsp;
The employees are cont</main>