ROBERT K. NARTEY (PLAINTIFF/RESPONDENT) vs. HSBC EQUATOR BANK P/C & ANOR. (DEFENDANTS/APPLTS.) [2005]DLCA7509

ROBERT K. NARTEY (PLAINTIFF/RESPONDENT) vs. HSBC EQUATOR BANK P/C & ANOR. (DEFEN... [2005]DLCA7509

Date	2005-06-10
Suit No.	CIVIL APPEAL NO. H1/138/2005.
Citation No.	[2005]DLCA7509

AKAMBA J.A. (PRESIDING)

DOTSE J.A.

APALOO J.A.

[2005]DLCA7509
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ROBERT K.
NARTEY<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>HSBC EQUATOR
BANK P/C &amp; ANOR.<o:p></o:p>(DEFENDANTS/APPLTS.)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL APPEAL NO.
H1/138/2005.&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: 10TH JUNE,
2005<o:p></o: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 0cm 1.0pt 0cm">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">CORAM:<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">AKAMBA
J.A. (PRESIDING), DOTSE J.A., APALOO J.A.<o:p></o:p>

</div><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>APALOO
J.A. <o:p></o:p>This
is an appeal from the ruling of the High Court, Accra dated 8th July, 2004 the
ruling which formed the basis of this appeal emanated from an application for
judgment under Order 25 rule 4 of L.N. 140A. <o:p></o:p>In a
writ of summons accompanied by a statement of claim the Plaintiff/Respondent
sued for the following reliefs:<o:p></o:p>&nbsp;(a) 1. An order compelling the Defendants
jointly and severally to negotiate with the Plaintiff a redundancy payment
acceptable to the Plaintiff or<o:p></o:p>&nbsp;2. Alternatively, the Court determining a
redundancy payment appropriate for Plaintiff's status and for the number of 6
years served.<o:p></o:p>&nbsp;(b) An order compelling the Defendant jointly
and severally to pay to Plaintiff any amount decided or determined by the Court
as reasonable redundancy payment commensurate with Plaintiffs' status and
period served. <o:p></o:p>(c)
An order restraining the Defendants from selling any of their assets or
assigning or entering into any novation agreements with any Ghanaian debtors or
transferring monies from its bank accounts in Ghana or taking any steps to
wind-up its operations in Ghana pending the hearing determination and payment
of a redundancy payment to the Plaintiff.<o:p></o:p>&nbsp;Both Defendants appeared to the writ and filed
their defences refuting and contesting Plaintiff's claim. <o:p></o:p>The
simple facts upon which this action was mounted in the court below are not in
dispute. The Plaintiff who had worked with the 1st Defendant Company as Asst.
Vice President and its country Manager for 6 years became aware that the 1st
Defendant in early 2003 began the transfer of its facilities and all other
assets and liabilities to the HSBC Banking Company in South Africa. Indeed the
1st and 2nd Defendants are a U.K. and a US incorporated companies respectively.
While the 1st Defendant has registered in Ghana as an external company, the 2nd
Defendant provided support service for the former. The Judgments of the
Superior Courts 11571 Copyright © DataCenta Ltd. recruitment and appointment of
the Plaintiff as Assistant Vice President was made by 2nd defendant in 1997. He
was to work as employee of the 1st Defendant and he did so from 5th January
1998 till 27th January 2004.<o:p></o:p>&nbsp;When the 1st Defendant commenced restructuring
of its business it became necessary for the 1st Defendant to shut down its
Accra Office thus rendering its employees redundant. The 1st Defendant
negotiated and concluded with its employees a redundancy package in accordance
with Ghanaian law as no provision was made for its application in the
employment contracts. The 1st Defendant pleaded that all the terms between it
and the Plaintiff had been agreed and concluded, including a flat payment of
$1,500 in lieu of an outplacement programme that the Plaintiff was demanding,
which was unavailable in Ghana. It is the case of the 1st Defendant further,
that when the agreed terms were reduced into writing the Plaintiff simply
refused to sign the agreement. He reasoned at that time that whilst the
agreement provided that Ghana law governed the agreement between the parties,
he would prefer United States law to be the governing contract, and that if the
law of Ghana was to be the governing law, then he would demand six months
salary for every year served in the employment of the 1st Defendant, as his
severance pay. <o:p></o:p>The
action then took a certain twist when the plaintiff by a motion under Order 25
rule 4 and the inherent jurisdiction of the trial court sought to strike out
the statements of defence as disclosing no reasonable defence to the claim and
prayed for judgment for the Plaintiff. The Defendants resisted this application
by their affidavit filed in opposition to the motion. Before the motion could
be heard the 2nd defendant also applied by a motion to dismiss the action
against it on the ground that the Plaintiff had no reasonable cause of action against
it. Both motions were argued before the trial court which determined the
applications as follows:—<o:p></o:p>&nbsp;1. In respect of 2nd Defendant's motion to
dismiss Plaintiff action against it, the court held that the inclusion of the
2nd Defendant as a party was necessary to enable the court properly and
effectually determine the rights of the parties. <o:p></o:p>2.
With regard to the Plaintiff's application to strike out the statements of
defence the court held that in its opinion the only issue in dispute was the
period to be used in calculating Plaintiff's severance pay and the
determination of that, the Judge maintained did not require evidence. The Judge
stated that the Plaintiff as a senior officer was entitled to more months in a
year than his subordinates and therefore awarded four months salary for each
year of service accordingly. The award came to $127,296.00.<o:p></o:p>&nbsp;In their Notice of Appeal the Defendants
canvassed the following grounds of appeal being errors on the part of the trial
judge. <o:p></o:p>1.
The learned trial judge erred in striking out the defence of the Defendants as
disclosing no reasonable defence and in entering judgment for the Plaintiff
when the pleadings fi</main>