LT. COL. S. B. ASHUN vs. ACCRA BREWERY LTD. [2008]DLSC2460

Date	2008-11-12
Suit No.	CIVIL APPEAL NO. J4/18/2007
Citation No.	[2008]DLSC2460

DATE-BAH J.S.C. (PRESIDING)

ANSAH J.S.C.

OWUSU J.S.C.

DOTSE J.S.C.

ANIN YEBOAH J.S.C.

COL. RTD. TSHAHEY FOR THE PLAINTIFF/RESD./APPELLANT

[2008]DLSC2460
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													<main id="main" class="content" style="min-height: 60rem" >LT. COL. S. B. ASHUN<o:p></o:p>vs.<o:p></o:p>ACCRA BREWERY LTD.<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/18/2007<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">

DATE: 12TH NOVEMBER, 2008.<o:p></o:p>

</div>COUNSEL<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">

COL.
RTD. TSHAHEY FOR THE PLAINTIFF/RESD./APPELLANT<o:p></o:p>

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

DATE-BAH
J.S.C. (PRESIDING), ANSAH J.S.C., OWUSU J.S.C., DOTSE J.S.C., ANIN YEBOAH
J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>&nbsp;DR. DATE-BAH, J.S.C:<o:p></o:p>&nbsp;This case, with respect, is based on a flawed
conception of the nature of a contract of employment.&nbsp; A contract of employment is not necessarily a
contract till the retirement age.&nbsp; As
Wuaku JSC said in Nartey-Tokoli v Volta Aluminium Company [1987-88] 2 GLR 532
at p. 545, a contract of employment, though it may be for an indefinite period,
does not mean life employment.&nbsp; Claim (d)
endorsed on the Plaintiff’s writ of summons is, however, based on the
fallacious conception that there is an expectation interest in a contract of
employment till the age of retirement.&nbsp;
The claim is in the following terms:<o:p></o:p>&nbsp;“an order for the payment to plaintiff of all
salaries, increments and all other benefits for the remaining six (6) years of
service with defendant company.”<o:p></o:p>A
contract of employment is clearly terminable.&nbsp;
Even if it is terminated wrongfully, that does not give the aggrieved
party the right to be paid salary till his retirement age.&nbsp; The Supreme Court held in Nartey-Tokoli v
Volta Aluminium Company [1987-88] 2 GLR 532 that where an employer terminates
an employee’s appointment in breach of a contract of employment, the employer
is liable to pay damages to the employee and that the damages are not limited
to salary in lieu of notice.&nbsp; Thus, for
instance, in Hemans v GNTC [1978] GLR 4 where an employee’s contract was
wrongfully terminated, the Court of Appeal awarded him four months’ salary in
damages, though the notice period under the contract was only one month.&nbsp; Nevertheless the duty of mitigation of
damages devolves on an employee.&nbsp;
Accordingly, he or she has the duty to take steps to find alternative
employment.&nbsp; In principle then, in the
absence of any contrary statutory or contractual provision, the measure of
damages in general damages for wrongful termination of employment in the common
law of Ghana is compensation, based on the employee’s current salary and other
conditions of service, for a reasonable period within which the aggrieved party
is expected to find alternative employment.&nbsp;
Put in other words, the measure of damages is the quantum of what the
aggrieved party would have earned from his employment during such reasonable
period, determined by the court, after which he or she should have found
alternative employment.&nbsp; This quantum is,
of course, subject to the duty of mitigation of damages.&nbsp; These principles outlined above, however,
hold true in relation to only contracts not affected by public law
provisions.&nbsp; Ghana Cocoa Marketing Board
v Agbettor &amp; Ors&nbsp; [1984-86] 1 GLR 122
illustrates the impact of public law provisions on contracts of
employment.&nbsp; In this case, because the
employees, as public servants, enjoyed constitutional protection from being
dismissed&nbsp; “without just cause”, the
Court of Appeal held that, where they had been dismissed in breach of the
constitutional obligation, the Court would mark its disapproval of the
employer’s unconstitutional action by ordering it to pay two years’ salary to
the employees as compensation.&nbsp; One
should hasten to add that on the facts of the present case, no public law
provision is applicable.<o:p></o:p>The
relevant facts of this case, which have given rise to this issue of law, are as
follows:&nbsp; the plaintiff was an employee
of the defendant brewery.&nbsp; He was
employed as chief of security.&nbsp; On 29th
November, 1996, the Defendant’s managing-director invited the plaintiff into
his office and handed him, in the presence of two other members of the
management, a letter informing him that his post in the company had been
declared redundant as a result of a manpower rationalization exercise by the
company.&nbsp; The letter stated that his
services would no longer be required from 2nd December 1996, but that he would
be paid up to that day and also be paid three months salary in lieu of notice.&nbsp; The letter further informed him that he would
receive a severance award of two and a half months pay for each year of
service, commencing from 1st January 1991.<o:p></o:p>At
the meeting with the managing-director, the plaintiff was given his three
months salary in lieu of notice and two days salary for December 1996.&nbsp; He was also paid monetary compensation for
his accrued leave days.&nbsp; On the 5th of
December 1996, the Plaintiff collected from the Accounts Department of the Defendant
the severance award referred to above.<o:p></o:p>&nbsp;<o:p></o:p>After
thus collecting the compensation offered in the letter of 29th November, 1996,
the Plaintiff caused his lawyer to write a letter to the defendant dated 29th
January 1997 which asserted that the Senior Staff Service Conditions of the
defendant dated 1st April 1995 contained no provision covering redundancy.&nbsp; It characterized the defendant’s action in
terminating the plaintiff’s employment as smacking of arbitrariness and
injustice.&nbsp; It expressed the view that
the defendant’s declaration of the plaintiff redundant was unlawful at law and
in breach of the Industrial Relations Act 1965, Act 299.&nbsp; It requested the holding of amicable
bilateral discussions to resolve the dispute.<o:p></o:p>In
a letter written in response, the solicitor to the defendant asserted that, in
addition to the express conditions of service for the Senior Staff, the
defendant had implied contractual terms, including working rules, corporate
practices and conventions, built over the years, which together constituted the
engagement terms of the work force, including the senior staff.&nbsp; The solicitor contended, in effect, that the
redundancy exercise was in accordance with these terms implied by practice and
usage.<o:p></o:p>When
the dispute between the parties was not resolved by the correspondence between
their solicitors, the Plaintiff issued a writ of summons against the defendant
on 19th May, 1997.&nbsp; The Plaintiff’s claim
was for:<o:p></o:p>“(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; a declaration that his being declared
redundant is unlawful and so wrongful.<o:p></o:p>