HOSAM EL-HALABI vs. SONITRA LIMITED [2011]DLCA6492

Date	2011-12-01
Suit No.	CIVIL APPEAL NO: H1/200/2010
Citation No.	[2011]DLCA6492

ASARE KORANG J.A. (Presiding)

YAW APPAU J.A.

ACQUAYE J.A

MR. EDWARD OBENG-MARFO FOR DEFT’/APPELLANT

MR. PAUL K. OPOKU FOR PLT/RESPONDENT

[2011]DLCA6492
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													<main id="main" class="content" style="min-height: 60rem" >HOSAM EL-HALABI<o:p></o:p>(PLAINTIFF/
RESPONDENT)<o:p></o:p>vs.<o:p></o:p>SONITRA LIMITED<o:p></o:p>(DEFENDANT/
APPELLANT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO: H1/200/2010&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; DATE: 1ST
DECEMBER, 2011<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL: <o:p></o:p>

MR.
EDWARD OBENG-MARFO FOR DEFT’/APPELLANT<o:p></o:p>

&nbsp;MR. PAUL K. OPOKU FOR PLT/RESPONDENT<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;
padding:0in 0in 1.0pt 0in">

ASARE KORANG J.A.
(Presiding), YAW APPAU J.A., ACQUAYE J.A.<o:p></o:p>

</div>YAW
APPAUJ.A. <o:p></o:p>The respondent in this
appeal who was the plaintiff in the trial High Court was employed by the defendant/appellant
Sonitra Limited as its Workshop Superintendant/Field Mechanic on 1st November
2003. His work schedule included supervision of the field mechanics of the
company as well as works done at the company’s site workshop at Tema plus other
assignments determined from time to time by the defendant/company. His service
duration under the contract of employment was for a period of twenty four (24)
months beginning from 1st November 2003 and ending 31st October 2005, with a
monthly salary of Three thousand United States Dollars ($3, 000).<o:p></o:p>&nbsp;Just seventeen (17) days into his employment;
precisely on 17th November 2003, he suffered injuries in the course of his
employment when he fell from a machine he was working on at the company’s main
workshop. He was rushed to the 37 Military Hospital where he was admitted for
treatment. He was discharged after being on admission for one week. Upon his
discharge he continued to work for the defendant/appellant company until his
24-month contract came to an end. During this period, he never put in any claim
for compensation to be paid to him for the injuries he sustained barely two
weeks after he had been employed on contract. He finally left the services of
the defendant/company on 31st October 2005 when his contract came to an end
without losing a pesewa of his earnings as stipulated under his contract of
employment. <o:p></o:p>However, about a year and
over after plaintiff had left the employ of the defendant/company, he went back
to the management of his former employers (i.e. the defendant /appellant) with
a medical report dated 15th December 2006 (i.e. three years after the accident
and over a year after his contract had come to an end) and complained that he
had difficulty in achieving and sustaining erection of his penis due to the
injuries he suffered three (3) years earlier so he wanted to be compensated.
From plaintiff’s own testimony, there was a new Managing Director in place who
did not know him so it was he plaintiff who briefed the new M.D. about the
accident he had when he was in the company’s employment. The then M.D. promised
to look into the matter but he did not hear from him until he caused his
lawyers to write to the company in April 2007.<o:p></o:p>&nbsp;After the defendant/company had received the
letter, they filled a compensation form and sought the assistance of the
District Labour Officer, Accra on the issue. According to the District Labour
Officer, in his testimony given on 24th June 2008, the first time plaintiff and
the defendant appeared before him on the issue was in 2007 though he was not
specific about the month. After this meeting, plaintiff decided to seek redress
in court. Plaintiff/respondent therefore caused a writ of summons to be issued
from the court below against the defendant/appellant on 7th September 2007
claiming the following reliefs:<o:p></o:p>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
An
adequate and fair compensation to the plaintiff for injuries suffered by him in
the course of his employment by the defendant as a Workshop
Superintendant/Field Mechanic in November 2003. <o:p></o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;Interest on the said compensation sum
calculated from December 2003 till date of final judgment.<o:p></o:p>iii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;General damages for pain and suffering and
for future loss of adequate earnings.<o:p></o:p>&nbsp;From the nature of the reliefs sought by the
plaintiff/respondent on his writ of summons vis-à-vis his pleadings as embodied
in his statement of claim, he appeared to have buttressed his action on PNDCL
187; i.e. the Workmen’s Compensation Act of 1987 and at the same time on
negligence. He said his accident was the result of a breach of statutory duty
of care under sections 118 and 120 of the Labour Act, 2003 [Act 651] and/or the
negligence on the part of his employer; i.e. the defendant/appellant. He gave
particulars of the alleged breach of duty and particulars of the alleged negligence
on the part of his employer and again particulars of the injuries suffered. He
then pleaded finally under paragraphs 12 to 16 as follows: —<o:p></o:p>&nbsp;“12. Plaintiff avers </main>