EMMANUEL LARBI vs. AFRICAN MINING SERVICES [2010]DLCA6997

Date	2010-12-16
Suit No.	CIVIL APPEAL NO: H1/108/09
Citation No.	[2010]DLCA6997

S K MARFUL-SAU JA [PRESIDING]

K A ACQUAYE JA

DENNIS D ADJEI JA

MR. D A OTOO FOR PLAINTIFF/RESPONDENT

MR SAMUEL DZIGBA FOR DEFENDANTS/APPELLANTS

[2010]DLCA6997
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													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL LARBI<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AFRICAN MINING SERVICES<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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO: H1/108/09 &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; DATE: 16TH
DECEMBER, 2010<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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S K MARFUL-SAU JA [PRESIDING], K A
ACQUAYE JA, DENNIS D ADJEI JA<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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</div>DENNIS D ADJEI JA <o:p></o:p>The
Plaintiff Respondent herein (hereinafter referred to as the Plaintiff) joined
the Defendant Appellant Company (Also hereinafter referred to as the Defendant)
in 1997 as Lube Bay Attendant and was promoted to the rank of Aid Service
Mechanic within two years. On 26th October 1999, the Defendant served a letter
of interdiction on the Plaintiff. <o:p></o:p>According
to the letter of interdiction, the Plaintiff’s interdiction was to take effect
from 26th October 1999. The letter of interdiction was served on the Plaintiff
on that same day. The reason for the interdiction was that there was an alleged
fraud and theft of the Defendants lubricants, and the Plaintiff was suspected
to be one of the people involved in the crime. The interdiction letter was
signed by the Project Manager of the Defendant one Geof F Stock. <o:p></o:p>On
1st September, 1999 the Plaintiff was asked by the Defendant to give a
statement in connection with the alleged crime. The Plaintiff denied knowledge
of the crime in the written statement he gave to the Defendant on 1st September
1999. On 25th November 1999 when the Plaintiff was still on interdiction,. the
Defendant terminated his appointment by a letter captioned RE: TERMINATION OF
APPOINTMENT. The Plaintiff was paid one month salary in lieu of notice and was
to receive any entitlement due and payable to him. The letter for termination
of the Plaintiff’s appointment was signed by one John Watkins, who was the
General Manager of the Defendant Company.<o:p></o:p>&nbsp;The Plaintiff felt aggrieved and petitioned to
the Defendant per a letter dated 1st December 1999 to rescind its decision. The
Defendant did not rescind its decision and as a result of that the Plaintiff
took an action against the Defendant in the High Court Tarkwa. The reliefs
sought by the Plaintiff on his writ of summons were: "damages for unfair
dismissal or reinstatement of the Plaintiff or both". <o:p></o:p>The
Defendant resisted the Plaintiff’s claim and averred that it could have
dismissed the Plaintiff on justifiable grounds but decided to deal with him
magnanimously by terminating his employment by paying him one month salary in
lieu of notice together with all his benefits. <o:p></o:p>Four
issues were set down for trial namely: <o:p></o:p>1.
Whether or not the Plaintiff was wrongfully or unfairly dismissed by the
Defendant. <o:p></o:p>2.
Whether or not there were lawful, fair or proper enquiries into the allegations
of theft or fraud.<o:p></o:p>&nbsp;3. Whether or not theft in fact took place.<o:p></o:p>&nbsp;4. Whether or not the Plaintiff has suffered
loss and damage.<o:p></o:p>&nbsp;The Plaintiff gave evidence without calling
any witness. The Human Resource Superintendent of the Defendant gave evidence
without calling any witness. At the close of the case the trial Court gave
judgment in favour of the Plaintiff on 10th April 2003. <o:p></o:p>The
Defendant being dissatisfied with the ruling of the trial court filed Notice of
Appeal against the judgment. There were five grounds of appeal against the
judgment namely:<o:p></o:p>&nbsp;1. The trial judge erred gravely when he
referred to a Collective Bargaining Agreement [CBA] which was not in evidence
throughout the trial.<o:p></o:p>