RICHARD ASARE & OTHERS vs. FERRO FABRIK LIMITED [2009]DLCA5091

Date	2009-07-23
Suit No.	CIVIL APPEAL SUIT NO: HI/16/09
Citation No.	[2009]DLCA5091

GBADEGBE J.A. (PRESIDING)

BROWN J.A.

HONYENUGA J.A.

MR. RICHARD A. Y. ANAMOO FOR PLAINTIFFS/APPELLANTS

MR. EDWARD AMISSAH-NUNOO FOR DEFENDANT/RESPONDENT

[2009]DLCA5091
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													<main id="main" class="content" style="min-height: 60rem" >RICHARD ASARE &amp; OTHERS<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>FERRO FABRIK LIMITED<o:p></o:p>(DEFENDANT/RESPONDENT)<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;
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CIVIL
APPEAL SUIT NO: HI/16/09&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;JULY 23, 2009<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. RICHARD A. Y. ANAMOO FOR PLAINTIFFS/APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p>GBADEGBE J.A. (PRESIDING), BROWN J.A., HONYENUGA
J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>Gbadegbe
J.A. <o:p></o:p>On
December 14, 2004, the instant writ issued from the Circuit Court, Tema
claiming certain reliefs that are plainly based on a contract of employment
between the parties to the action. In the title to the writ, it was provided as
follows regarding the plaintiff: “Richard Asare and 54 others.” In the
indorsement to the writ of summons, the following description was provided of
the plaintiff: “The plaintiff brings this action for himself and 54 others”. The
indorsement as to the capacity in which the action was initiated by the
plaintiff was repeated in paragraph 1 of the statement of claim to the
following effect:<o:p></o:p>&nbsp;“Plaintiff brings this action for himself and
54 others (list attached herein) who were at all material times employed by the
defendant Company Ferro Fabrik (Gh) Limited and worked loyally for various periods
between 6months and ten years.”<o:p></o:p>The
action proceeded to a trial with a hearing being conducted under Order 33rule 4
of the High Court (Civil Procedure Rules), 2004 resulting in a judgment that
was pronounced by the learned Circuit judge in favour of the defendant to whom
I shall in these proceedings for convenience refer as the respondent against
the plaintiff who also is conveniently referred to as the appellant. The
appellant feeling aggrieved and dissatisfied with the decision of the court
below lodged an appeal to this court seeking a reversal of the decision of the
trial court in his favour. Subsequently, the parties submitted their respective
statements of case to us for our consideration as is required of them under the
rules of this court that are contained in the Court of Appeal Rules, CI 19.We
think that the issues that were raised on the statements submitted to us are
quite interesting and of some importance to the determination of the rights of parties
to contracts of employment in so far as the question as to who is a casual or
permanent employee is concerned having regard to the provisions of the Labour
Law, Act 651 of 2003 but unfortunately for reasons that follow shortly we are
unable to pronounce on the said question.<o:p></o:p>At
the hearing of the appeal, in the exercise of the powers conferred on us under
rule 8(8) of the rules of this court we asked counsel for the respondent to
respond to a question of law, which though not contained in the grounds of appeal
was apparent from an examination of the record. The point relates to the
capacity in which the action was brought in the court below and was carefully
formulated by us as follows.<o:p></o:p>&nbsp;“Whether or not having regard to section 42 of
the Courts Act, (Act 459 as amended by Act 620) the Circuit Court had
jurisdiction in the matter?”<o:p></o:p>The
above question was raised by us having regard to section 42 (1) (a) of the
Courts Act that provides in relation to the jurisdiction of the Circuit Court
as follows:<o:p></o:p>&nbsp;“The civil jurisdiction of a circuit Court
consists of the following-<o:p></o:p>(a)&nbsp;&nbsp;&nbsp; Original
jurisdiction in civil matters-<o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
In personal actions arising under contract or tort
or for the recovery of any liquidated sum, where the amount claimed is not more
than one hundred million cedis.”<o:p></o:p>