ANDREW A. AMOAH vs. NEWMONT GHANA GOLD LIMITED [2016]DLCA4559

Date	2016-07-14
Suit No.	CIVIL APPEAL NO: H1/119/2016
Citation No.	[2016]DLCA4559

OFOE JA (PRESIDING)

LARBI (MRS) JA

AGYEMANG (MRS.) JA

AHUMAH OCANSEY FOR PLAINTIFF APPELLANT

DOE TSIKATA FOR DEFENDANT /RESPONDENT

[2016]DLCA4559
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													<main id="main" class="content" style="min-height: 60rem" >ANDREW A. AMOAH<o:p></o:p>(PLAINTIFF / APPELLANT)<o:p></o:p>vs.<o:p></o:p>NEWMONT GHANA GOLD
LIMITED<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL (CIVIL 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">

CIVIL APPEAL NO: H1/119/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
14TH JULY, 2016<o:p></o:p>

DOE
TSIKATA FOR DEFENDANT /RESPONDENT<o:p></o:p>

</div>AGYEMANG, JA:<o:p></o:p>In
this appeal against the decision of the High Court (Industrial and Labour
Division) Accra, delivered on the 10th of December, 2013, the
plaintiff/appellant (hereafter described alternately as the appellant or the
plaintiff), seeks the setting aside the judgment (described by the court as its
ruling), and the grant of the relief sought by the appellant at the court
below. <o:p></o:p>These
are the antecedents of the appeal. <o:p></o:p>The
plaintiff was employed in 2009 as a Business Excellence Black Belt by the
defendant/respondent (referred to alternately as the respondent, or the
defendant). on the 11th of March 2010, he was given new employment by way of
promotion to the position of Mine Manager for Ahafo. <o:p></o:p>The
new employment was governed by a letter of appointment dated 11th of March
2010, as well as a document described as the Newmont Ghana Senior Management
Staff Manual (hereafter referred to as the “manual”), attached to, and recited
in the said letter as forming part of the conditions of the employment.<o:p></o:p>The
plaintiff remained in that employment from the 11th of March 2010 until the
13th of May 2011 when the respondent by letter to the appellant, terminated his
services. The appellant at the court below pleaded that before this, he had in
fact been informed by the respondent per its General Manager that his services
were no longer required, and he was asked to resign or be relieved of his
employment. No reasons were given to him for that request. He averred that it
was when he failed to resign that his employment was terminated by letter of
13th May 2011. <o:p></o:p>The
plaintiff commenced suit at the court below seeking reliefs: inter alia, a
declaration that the termination of his employment by the respondent was
unlawful, offending both statutory law, and his conditions of service, as well
as damages for the wrongful termination, loss of reputation, embarrassment,
diminished prospect of employment in the mining industry and a medical state
induced by the wrongful termination.<o:p></o:p>At
the close of the pleadings, the parties at the application for directions, set
out the issues to be determined and the defendant set out two additional issues
as preliminary issues to be determined by legal arguments. The latter issues
were:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether or not it was a term of the
plaintiff’s contract of employment that his employment was determinable at will
or upon notice;<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether or not the plaintiff’s contract
of employment was determinable by the defendant without assigning any reason
therefor.<o:p></o:p>Upon
hearing the arguments of counsel, the learned trial judge ruled that the
contract of employment that governed the relationship of the parties was
determinable at will, and furthermore, that by the provisions of S. 17(1) and
(2) of the Labour Act 2003 Act 651, it was determinable by either party at the
close of day without notice. Thus he dismissed the plaintiff’s claim. <o:p></o:p>It
is against this ruling of the learned trial judge that the present appeal has
been brought on this sole ground:<o:p></o:p>“That the ruling failed to show
understanding of (the) “Contract of employment” of the appellant’s engagement
by the respondent and thereby occasioned a miscarriage of justice.”<o:p></o:p>Our
understanding of the said ground of appeal is that the learned trial judge
erred in law by his failure to apply the incidents of a contract of employment
in relation to the employment relationship between the plaintiff and the
defendant, which failure led to a miscarriage of justice.<o:p></o:p>We
have felt the need to distil the complaint before us from the ground set out,
because the ground of appeal was clumsily crafted, and did not directly
indicate the error of law or fact or misdirection complained of in accordance
with Rule 8 (4) of the Court of Appeal Rules CI 19, nor did the appellant give
particulars of such error. We have therefore (since the alternative course
would be to strike out the ground and thus dismiss the entire appeal), been
constrained to glean the error complained of from the general complaint made
regarding an alleged misapprehension of the significance of the contract of employment
by the learned trial judge. <o:p></o:p>