ASHANTI GOLDFIELDS COMPANY vs. ALEX OPOKU AND OTHERS [2011]DLCA3068

Date	2011-05-27
Suit No.	HI/25/2011
Citation No.	[2011]DLCA3068

JUSTICE MARIAMA OWUSU JA [PRESIDING]

JUSTICE FRANCIS G KORBIEH JA

JUSTICE IRENE C DANQUAH JA

ANTHONY DETSEWU ESQR FOR DEFENDANT/APPELLANT

NENE KORDA FOR KOFI ADDO FOR PLAINTIFF/RESPONDENT.

[2011]DLCA3068
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													<main id="main" class="content" style="min-height: 60rem" >ASHANTI GOLDFIELDS COMPANY<o:p></o:p>vs.<o:p></o:p>ALEX OPOKU AND OTHERS<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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">

HI/25/2011&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; &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, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ANTHONY
DETSEWU ESQR FOR DEFENDANT/APPELLANT<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">

NENE KORDA FOR KOFI ADDO FOR
PLAINTIFF/RESPONDENT.<o:p></o:p>

JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>IN
THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:double windowtext 2.25pt;
padding:0in 0in 1.0pt 0in">

KUMASI, ASHANTI REGION-GHANA A D 2011<o:p></o:p>

</div>IRENE
C DANQUAH JA<o:p></o:p>The Defendant is a Mining
Company operating in Obuasi and other places.&nbsp;
Opoku, the 1st Plaintiff and three others until 12th
December 1997 when they received letters terminating their appointment, worked
in various capacities in the Defendant’s Mines at Obuasi.&nbsp; The 1st, 2nd and 3rd
Plaintiffs were Machine (Wagner) Drivers whilst the 4th Plaintiff
was a Blastman. The termination of the plaintiffs took retrospective effect
from 14th November 1997.&nbsp; The
contractual relationship between the Plaintiffs and the Defendant is governed
by the Collective Bargaining Agreement [CBA] &amp; Conditions of Service for
Junior Staff as associated with the Ghana Mine Workers Union. <o:p></o:p>The facts antecedent to
the commencement of the instant action are that on 5th September
1997, one Abraham Adjei, a Senior Blastman working with the same gang as the
Plaintiff died underground.&nbsp; The
Defendant promptly reported the incident to the Inspector of Mines in compliance
with the Mining Regulations who caused a pathologist to examine the
deceased.&nbsp; The Mines Inspector further
instituted investigations into the incidence after the pathologist’s report
showed that the injuries sustained by the deceased could not have been caused
by the Wagner Train as alleged by the Plaintiffs.&nbsp; After the investigations, the Mines Inspector
wrote to the Defendant on 10th November 2007 directing inter alia
that the Plaintiffs be relieved of all duties of the Defendant, effective 9th
September 1997.&nbsp; Subsequently the
Defendant wrote to each of the Plaintiffs terminating their appointment with
effect from 14-11-97.&nbsp; The Defendant paid
the entitlements of the plaintiffs including pay in lieu of notice and leave
entitlement in accordance with the CBA.&nbsp;
The Plaintiffs after collecting the entitlements but dissatisfied with
the termination of their appointments by their amended Writ of Summons sought
the following reliefs against the Company as 1st Defendant and the
Mines Inspector as 2nd Defendant jointly and severally:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “
A declaration that the purported termination by 1st Defendant of
Plaintiffs appointment with the 1st Defendant Company with effect
from 12th November 1997 upon the alleged advice or direction by 2nd
Defendant was wrongful, illegal, null and void and of no effect.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A
declaration that the 2nd Defendant reached the wrong conclusion when
he suggested that Plaintiffs could not offer any explanation for injury and
death of their colleague and therefore they were culpable and deserved to be
sacked from 1st Defendants employment.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Payment
of Plaintiffs by 1st Defendant of all arrears of salary and accrued
benefit from October 1997 till date of final judgment.<o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; General
damages against 1st and 2nd Defendants for wrongful
dismissal.<o:p></o:p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Any
further orders per Order 63 Rule 6 of the High Court (Civil Procedures) Rules.”<o:p></o:p>On
27th February 2009 the High Court Kumasi which tried the case
delivered its judgment in favour of the Plaintiffs and held that the
termination of the Plaintiff’s employment amounted to a dismissal and it was
wrongful.&nbsp; The court further held that
since the 1st Defendant could not positively prove that the Plaintiffs
were involved in Abraham Agyei’s death, it was illegal for the 1st
Defendant to use it as the basis for their dismissals.&nbsp; The trial court therefore entered judgment in
favour of the Plaintiffs for all the reliefs sought and ordered the 1st
Defendant to pay all the Plaintiffs salary arrears from October 1997 till the
date of judgment together with interest at the current bank rate.&nbsp; It was further ordered that the Plaintiffs be
entitled to be paid all other entitlements like leave allowances, bonuses as
well as salary increments from October, 1997 to the date of judgment.&nbsp; In the alternative the court awarded each of
the Plaintiffs Ten Thousand GH Cedis (GH¢10,000.00) as
general damages for wrongful dismissal whichever was higher.&nbsp; Finally the trial court</main>