MILLICOM (GH.) LTD. vs. PAUL OSEI MENSAH AND NATIONAL LABOUR COMMISSION [2010]DLHC4368

Date	2010-02-11
Suit No.	SUIT NO. INDL/04/09
Citation No.	[2010]DLHC4368

KWABENA ASUMAN-ADU

MR. NARTEY TETTEH FOR THE PLAINTIFF/RESPONDENT

MS. EFFIBA AMIHERE WITH CAROLINE DARKO FOR THE DEFENDANTS/ APPLICANTS

[2010]DLHC4368
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">MILLICOM (GH.) LTD.<o:p></o:p></a>vs.<o:p></o:p>PAUL OSEI MENSAH AND NATIONAL LABOUR
COMMISSION&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>&nbsp;[HIGH COURT (INDUSTRIAL/LABOUR DIVISION),
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">

SUIT NO. INDL/04/09&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;DATE: 11TH FEBRUARY, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR.
NARTEY TETTEH FOR THE PLAINTIFF/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MS. EFFIBA AMIHERE WITH CAROLINE DARKO FOR THE
DEFENDANTS/ APPLICANTS<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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KWABENA
ASUMAN-ADU, JUSTICE
OF THE HIGH COURT<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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RULING<o:p></o:p>

</div>This ruling is in respect of Motion on Notice filed
by Defendants/Applicants on 27th May, 2009 to set aside the Writ and
its service on the 1st Defendant.<o:p></o:p><o:p>&nbsp;</o:p>The main ground for the application as shown in the
accompanying Affidavit is that 1st Defendant/Applicant who is a
Commissioner of the 2nd Defendant/Applicant did not act in his
personal capacity but executed his duty as provided by the Labour Act, 2003
(Act 651), so he is not personally liable for decisions taken by virtue of his
position. It is, therefore, improper to sue him as 1st Defendant. <o:p></o:p><o:p>&nbsp;</o:p>In its Affidavit in Opposition filed on 1st
June, 2009 the Plaintiff/Applicant avers that a similar application was filed
by the 1st Defendant on 19th February, 2009 which is yet
to be moved so the instant application filed by 1st
Defendant/Applicant is an abuse of the Court process. It goes on to aver that 2nd
Defendant has no authority under the Labour Act, 2003 (Act 651) or any other
law to enter Conditional Appearance on behalf of the 1st Defendant
in a personal suit against the said 1st Defendant.<o:p></o:p><o:p>&nbsp;</o:p>It avers further that 1st Defendant
wrongfully assumed the statutory authority to issue a decision against the
Plaintiff/Respondent herein. The allegations leveled against 1st
Defendant/Applicant are true, so he is a necessary party for the final and
effectual determination of the dispute. He has no immunity from Court process
and ought to defend the allegations made against him.<o:p></o:p><o:p>&nbsp;</o:p>Submissions made by both counsel on behalf of the
parties flow from their respective Affidavits.<o:p></o:p>Counsel for Defendants/Applicants submitted that
the service of the Writ and the Statement of Claim on the 1st
Defendant/Applicant is not in accordance with the rule and is highly
unnecessary. This is because he was acting in his capacity as a Commissioner at
the National Labour Commission and the decision of the Commission was made by
the 1st Defendant/Applicant on behalf of the Commission. The
Plaintiff has come to Court against that decision. So if the National Labour
Commission has been sued, there is no need to sue an officer of the National
Labour Commission who was acting in his capacity as an officer of the
Commission. <o:p></o:p><o:p>&nbsp;</o:p>In his reply, counsel for the Plaintiff/Respondent
submitted that the Conditional Appearance filed by the 1st Defendant
on 10th February, 2009 was amended pursuant to ruling of this Court
on 11th May, 2009. He goes on to submit that when an amendment is
effected, it is trite learning that it goes back to the date of filing. There
was, therefore, a varied Notice of Appearance going back to the date of which
it was filed. That is 10th February, 2009. He referred the Court to
Order 9 R 8 of CI 47 and submitted that counting 14days from that date shows
that the application is time barred and cannot be heard by this Court.<o:p></o:p><o:p>&nbsp;</o:p>