JAMES BAIDEN & OTHERS vs. GRAPHIC CORPORATION [2005]DLSC6413

Date	2005-07-13
Suit No.	CIVIL APPEAL NO. CA J4/36/2004
Citation No.	[2005]DLSC6413

ATUGUBA J.S.C. (PRESIDING)

AKUFFO (MS) J.S.C.

DR. TWUM J.S.C.

LARTEY J.S.C.

ANINAKWA J.S.C..

MR. KWAKU PANTSIL FOR PLAINTIFFS/RESPONDENTS/APPELLANTS.

MR J.K. AGYEMANG FOR RESPONDENTS

[2005]DLSC6413
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													<main id="main" class="content" style="min-height: 60rem" >JAMES BAIDEN &amp; OTHERS<o:p></o:p>&nbsp;vs.<o:p></o:p>GRAPHIC CORPORATION<o:p></o:p><o:p>&nbsp;</o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL NO. CA
J4/36/2004&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: 13TH JULY, 2005<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. KWAKU PANTSIL FOR
PLAINTIFFS/RESPONDENTS/APPELLANTS. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR J.K. AGYEMANG FOR RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <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">

ATUGUBA J.S.C. (PRESIDING), AKUFFO
(MS) J.S.C., DR. TWUM J.S.C., LARTEY J.S.C., ANINAKWA J.S.C..<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>ATUGUBA
J.S.C. <o:p></o:p>The
appellants were the employees of the respondent Graphic Corporation. Their
relationship was governed, inter alia, by a collective agreement (exhibit B).
Section 28.03 thereof provided for long service awards to the employees, while
section 28.04 provided for end of service awards. <o:p></o:p>However,
in December 1990, the government of the Provisional National Defence Council
(PNDC), directed all public corporations and the state organisations having end
of service benefits to freeze them and to arrange with the unions regarding
payments to their employees entitled to such benefits up to the end of December
1990. Pursuant to this directive and following talks on the matter between the
Ministry of Mobilization and Social Welfare, the Trade Union Congress and management
of the respondent, the end of year benefits were calculated and 40 per cent
thereof was paid out to the plaintiffs, leaving 60 per cent thereof on hold,
which was paid to them upon the termination of their employment in 1993 (see
pages 43, 44. 48-49 of the record of appeal). <o:p></o:p>On
29 October 1993 the plaintiffs and others totalling 155 in number, were served
with letters, in identical terms, of termination of their employment with the
respondent. On their own evidence, in addition to the end of service benefits
as they stood at the end of December 1990 they were paid severance awards and
their provident fund contributions after the necessary deductions. <o:p></o:p>The
appellants' however, contend that they were entitled to their end of service
awards from their time of employment up to the date of the termination of the
same on 29 October 1993 based on the provisions of section 28.04 of their
collective agreement. This claim was upheld by the trial judge on the ground
that the aforementioned directive of the PNDC was contrary to the provisions of
the Industrial Relations Act, 1965 (Act 299), as it violated section 28.04 of
the said collective agreement. This holding was reversed by the Court of Appeal
on the ground that the said directive of the PNDC has been accorded
constitutional immunity by section 34(3) of the Transitional Provisions of the
1992 Constitution. Counsel on both sides, Kwaku Paintsil for the appellants and
J K Agyemang for the respondent, have put forward very stiff and learned
arguments on this matter and I am much indebted to them. <o:p></o:p>Mr.
Paintsil first contended that the said PNDC directive was multi-faceted and
could not be judicially noticed in the absence of evidence as to its specifics
with regard to its scope of applicability in terms of categories of employees
to be affected, its duration, contingent conditions to be complied with either
by employers or employees, etc. Mr J K Agyemang's reply to this is that such
specifics were irrelevant to the claims sought by the plaintiffs. <o:p></o:p>In
my view, the answer to the propriety of judicial notice of the said PNDC
directive lies in the provisions of section 9(2)(a) and (b) of the Evidence
Decree, 1975 (NRCD 323), which are as follows: <o:p></o:p>"9(2)
Judicial notice can be taken only of facts which are either: <o:p></o:p>(a)
so generally known within the territorial jurisdiction of the court; or <o:p></o:p>(b)
so capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned that the fact is not subject to
reasonable dispute." (The emphasis is mine). <o:p></o:p>It
is clear that, if as contended by counsel for the appellants, only the general
or bald fact of the freezing of end of service awards was in the terms of
section 9(2)(a), " so generally known within the territorial jurisdiction
of the court" as to be suitable for judicial notice, yet any details that
such a directive entailed, having been issued by a public body like the
Ministry of Mobilization and Social Welfare would be "so capable of
accurate and ready determination " by resort to, the relevant records of
that Ministry that "their accuracy cannot reasonably be questioned."
Indeed, this court directed counsel on either side of this case to have that
directive made available to us. This has been done and it confirms the facts of
the directive as judicially noticed by the courts below. In a press release
dated 10 December 1990 jointly signed by Mr. D. S. Boateng, the then secretary
for Mobilization and Social Welfare and Mr A K. Yankey, the then
Secretary-General of the Trades Union Congress, it is stated: <o:p></o:p>"Governmental
TUC Joint Standing Committee has met in Accra to discuss the End-of-Service
Benefits scheme and other related matters. The meeting followed the
misinterpretation of the directives issued earlier by the government to Chief
Executives of State-owned Enterprises in respect of End of Service benefits.
The Standing Committee discussed a number of issues bearing directly on the
end-of-service benefits, including the magnitude of the total amount involved,
its payment and overall effects on the National Economy. The meeting also
discussed the natio</main>