ISAAAC K. KOBI & 24 ORS vs. GHANA MANGANESE CO. LTD [2006]DLSC6118

Date	2006-07-19
Suit No.	CIVIL APPEAL NO. J4/27/2005
Citation No.	[2006]DLSC6118

ATUGUBA J.S.C.(PRESIDING)

PROF. OCRAN J.S.C.

MRS. WOOD J.S.C.

ANSAH J.S.C.

ASIAMAH J.S.C.

MR. G. F. GARDINER FOR PLAINTIFFS/APPELLANTS/APPELLANTS

MAJOR (RTD.) AGBENOTO FOR RESPONDENTS/RESPONDENTS/RESPONDENTS.

[2006]DLSC6118
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													<main id="main" class="content" style="min-height: 60rem" >ISAAAC K. KOBI &amp; 24
ORS<o:p></o:p>[PLAINTIFF/APPELLANTS]<o:p></o:p>vs.<o:p></o:p>GHANA MANGANESE CO. LTD<o:p></o:p>[DEFENDANT/RESPONDENT]<o:p></o:p>[SUPREME
COURT, 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. J4/27/2005&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; DATE: 19TH JULY, 2006<o:p></o:p>

MAJOR
(RTD.) AGBENOTO FOR RESPONDENTS/RESPONDENTS/RESPONDENTS.<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>ATUGUBA, J.S.C.<o:p></o:p>The
appellants were employees of the respondent company.&nbsp; Their terms of employment were, inter alia,
set out in a collective Bargaining Agreement, exhibit AA.<o:p></o:p>On
the 19th day of May 1999 some of the respondent’s workers went on a
demonstration on its premises against the apprehended termination of the
employment of the company’s resident doctor.&nbsp;
Next day the workers found per notices to that effect, that the company
had been closed down.&nbsp; Negotiations
ensued between the Ministry for Employment and Social Welfare, representatives
of the National Mineworkers Union, the workers and management of
respondent.&nbsp; Consequently the appellants
and the rest of the workers were asked to sign declarations of confidence in the
management as a precondition for “re-adminission”.&nbsp; They did so but were rather issued with
letters of rejection.&nbsp; Hence the action.<o:p></o:p>The
appellants’ claims were dismissed both by the trial High Court and the Court of
Appeal.<o:p></o:p>The
appellants contend inter alia, that the judgment of the Court of Appeal is
against the weight of evidence.&nbsp; It is
interesting to note that the Court of Appeal acknowledged that the trial
court’s judgment could not be supported on the evidence.&nbsp; What they regarded as the solid legal rock
sustaining the appellants’ dismissal is stated at p.239 of the record of appeal
per Quaye J.A, as follows:&nbsp; “Even though
the respondents did not lead sufficient or satisfactory evidence why the
appellants and not any of the other employees had their appointments
terminated, they have the legal right qua employers to dispense with any worker
and no court can challenge that decision and act once the necessary payments
had been made”,<o:p></o:p>This
statement of the law is largely right.&nbsp;
What I consider to be trite learning on this issue is that a contract of
service is not a contract of servitude.&nbsp;
That being so even if the contract of employment is silent on the
question whether it is terminable, the common law implies a right to terminate
the same by either side upon reasonable notice to the other.&nbsp; See BAUMAN V. HULTDNY PRESS LTD (1952) 2
ALLER 1121.&nbsp; Subject to this the right to
terminate a contract of service is dependent on the terms of the contract and
must be exercised in accordance there with.<o:p></o:p>Thus
in GHANA COCOA MARKETING BOARD&nbsp; V.&nbsp;
AGBETTOH (1984 – 86) 1GLR
122GA at 125 Apaloo C.J delivering the judgment of the court said:&nbsp; “The Plaintiffs were servants of the
appellant board (hereinafter referred to as the Defendant board) and had
severally entered into written contracts of personal service with it.<o:p></o:p>The
available evidence shows that save salaries, the board had a stereotype type of
letter of appointment and in it provision is made by which the board can
dispense with the Plaintiffs’ services.&nbsp;
The latter have a corresponding right.&nbsp;
For instance clause 7 of the first Plaintiff’s letter of appointment
(exhibit 6) provides that:<o:p></o:p>“The appointment may be terminated by
either party on giving three months’ notice or payment of three months’ salary
in lieu of notice.&nbsp; The Board, however,
reserves the right to dismiss you summarily on grounds of indiscipline and
inefficiency.”&nbsp; The effect of a
termination of the Plaintiffs’ employment effected in contravention of such
terms of employment was poignantly stated by Apaloo C.J at p.126 thus:&nbsp; “At the very least it can be said that the
purported termination which is, in fact, a removal from office, did not accord
with the service contract between the board and the Plaintiffs.&nbsp; They were not removed for indiscipline or
inefficiency.&nbsp; They were given no notice
of their projected removal.&nbsp; In those
circumstances, it cannot be gain said that the action of the interim management
committee was unlawful”.&nbsp;
See also ARYEE V.&nbsp; STATE CONSTRUCTION CORPORATION (1984 – 86)
1GLR 424 at 431 and KOBEA&nbsp; V.&nbsp; TEMA OIL REFINERY (2003 – 2004) SCGLR 1033.<o:p></o:p>In
this case the collective agreement provides as follows:<o:p></o:p>ARTICLE 8 – DISCIPLINARY REGULATIONS<o:p></o:p>Introduction<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; There shall be a Disciplinary Committee
comprisin</main>