ANGLOGOLD ASHANTI LTD vs GEORGE SIAW YEBOAH [2010]DLCA4564

Date	2010-05-27
Suit No.	H1/162/2010
Citation No.	[2010]DLCA4564

J. B. AKAMBA J.A. PRESIDING

K. A. ACQUAYE J.A

C. J. HONYENUGA J.A

MR. NARTEY TETTEY FOR APPELLANTS

MR. JAMES AGBEDOR FOR RESPONDENTS

[2010]DLCA4564
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													<main id="main" class="content" style="min-height: 60rem" >ANGLOGOLD ASHANTI LTD<o:p></o:p>(DEFENDANT /APPELLANT)<o:p></o:p>vs<o:p></o:p>GEORGE SIAW YEBOAH<o:p></o:p>(PLAINTIFF/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;
padding:0in 0in 1.0pt 0in">

H1/162/2010&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: 27th MAY 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
NARTEY TETTEY FOR APPELLANTS<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">

MR.
JAMES AGBEDOR FOR RESPONDENTS<o:p></o:p>

</div>CORAM:&nbsp;&nbsp; <o:p></o:p>J.
B. AKAMBA J.A. PRESIDING, K. A. ACQUAYE J.A, C. J. 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="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>AKAMBA,
J.A: <o:p></o:p>The
appellant, a mining company in Obuasi, Ghana has a subsidiary company at Sugri
in the Republic of Guinea. On 10th November 1994 the respondent was employed by
the erstwhile Cluff Mining Company which was later acquired by the appellant
and described as its Ayanfuri mine near Obuasi Ghana. In 1996 the appellant
transferred the respondent to its Sugri mine in Guinea. Respondent was recalled
to Ghana in 2005 to continue his employment in Obuasi and remained as such
employee till November 2006 when he together with other workers was declared
redundant. His terminal benefits were calculated and paid to him. The
respondent however disputed the basis for calculating his terminal benefit as
the same failed to take into account the period he worked as an expatriate in
the Republic of Guinea. The respondent drew the attention of the appellant to
the apparent miscalculation of his entitlements but this view was not shared by
the appellant. Following the stalemate the respondent initiated an action at
the Automated High Court Accra to claim what he perceived as due him. The High
court entered judgment in favour of the respondent hence this appeal.<o:p></o:p>In
this appeal three grounds were formulated for determination by this court.
These are that:<o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred in holding
that the calculation of the plaintiff’s entitlements must include an amount for
the period while he was engaged abroad.<o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The trial judge erred in holding that the
plaintiff who was re-engaged on his return from abroad qualified as a category
A or B employee.<o:p></o:p>(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge misconstrued the
legal clauses 4.2.1, 4.2.2 or 4.2.4, as applying to the plaintiff.<o:p></o:p>The
resolution of this appeal just as the initial action before the trial High
court hinges upon the true or proper interpretation of the scope of operation
of exhibit A. In doing so it is important to state that exhibit A should be
considered as a whole to be appreciated. This conforms to a basic rule of
construction of documents that a document must be read as a whole in order to
ascertain the intentions of the maker and thus give effect to and effectuate
the true intentions. This court in the case of Boateng v Volta Aluminium Co.
Ltd (1984-86) GLRD 85 approved the indelible dictum of Huddleston B in Wigsell
v Corporation of School for Indigent Blind (1880) 43 LT 218 in the following
words: <o:p></o:p>“ In construing covenants, the
fulfillment of the evident intention and meaning of the parties to them must be
looked at, not confining oneself within the narrow limits of a literal
interpretation; but taking more liberal and extended view,&nbsp; and contemplating at once the whole scope and
object of the deed in which they are contained.” <o:p></o:p>&nbsp;In that case the employment of the appellant,
a production supervisor was terminated on being given a month’s salary in lieu
of notice. He claimed that the termination was unlawful as it contravened
clause 3 of the conditions of his service which required that termination be
subject only to the giving of ‘a notice of one month.’ Termination in lieu of
notice was not provided for. He therefore by an originating summons sought an
interpretation of the clause which provided that “involuntary termination of
employment for cause shall require a month’s notice to the terminated
supervisor.” The High Court ruled that clause 3 of the conditions of service
implied that the employment could be terminated on payment of salary in lieu of
notice and therefore the termination of the employment consequent upon payment
of salary was not unlawful. On appeal against that interpretation, this Court
in dismissing the appeal held that in construing clause 3 regard should be
given to all four clauses in the agreement dealing with termination, the
language used and all the provisions in the termination clauses should be
looked at as a whole and every clause must be compared with the other and an
entire sense made out of them with a view to discovering the true meaning and
intentions of the parties. <o:p></o:p>This
basic approach was also rightly adopted by Abban J (as he then was) in the case
of Manu vs Emeruwa (1971) 1 GLR 442 for which I endorse and approve. In that
case the plaintiff borrowed money from the defendant for three weeks for which
he deposited his car together with all the documents on the car with the
defendant as security. The terms of the transaction were embodied in a written
document signed by both parties who were illiterates. The car was subsequently
damaged by the defendant’s son when he was learning to drive with it. The
plaintiff sued for damages for the use or misuse of his car. The issue turned
on whether the transaction as embodied in the written agreement was a pledge or
a mortgage. The court in determining that issue held that the written document
must be read as a whole, that is to say that it must consider certain
apparently ambiguous words such as “absolute assignment”, “covenant” and
“absolutely” as well as clause 2 of the document which sta</main>