DILYS HOBENU vs. ABSA BANK GHANA LTD. [2023]DLCA17144

Date	2023-02-08
Suit No.	SUIT NO: H3/161/2023
Citation No.	[2023]DLCA17144

SOWAH JA. (PRESIDING)

OPPONG J.A

ACKAAH-BOAFO J.A.

GODLOVE KOTEI FOR PLAINTIFF/RESPONDENT/RESPONDENT

EVANS DZIKUNU FOR DEFENDANT/APPELLANT/APPLICANT

[2023]DLCA17144
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													<main id="main" class="content" style="min-height: 60rem" ><a name="_Hlk152849823">DILYS HOBENU</a> <o:p></o:p>(PLAINTIFF/RESPONDENT/RESPODNENT)<o:p></o:p>vs.<o:p></o:p>ABSA BANK GHANA LTD. <o:p></o:p>(DEFENDANT/APPELLANT/APPLICANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT NO: H3/161/2023&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 8TH&nbsp;FEBRUARY 2023<o:p></o:p>

</div>COUNSEL<o:p></o:p>GODLOVE
KOTEI FOR PLAINTIFF/RESPONDENT/RESPONDENT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

EVANS
DZIKUNU FOR DEFENDANT/APPELLANT/APPLICANT<o:p></o:p>

</div>CORAM<o:p></o:p>SOWAH JA.
(PRESIDING), OPPONG J.A, ACKAAH-BOAFO J.A.<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;SOWAH,
J.A.:<o:p></o:p>&nbsp;The application before us is a repeat application for
stay of execution pending the determination of an Interlocutory appeal filed on
17th March, 2022 against an Order of interlocutory injunction made on 25th
February 2022 by the High Court, Labour Division.<o:p></o:p>&nbsp;The Court below granted an interlocutory injunction
restraining the defendant/applicant Bank [hereafter “Applicant”] from reviewing
downwards the remuneration of the plaintiff/respondent. The
plaintiff/respondent [hereafter the “respondent”] had been on sick leave for
many months due to what she contends is a spinal injury linked to her long
hours of sitting while working for the Applicant Bank.<o:p></o:p>&nbsp;Counsel for the Applicant submitted that at the time the
application was filed on 31st August 2021, the Respondent was receiving half of
her salary in accordance with the Collective Bargaining Agreement (CBA) after
she had been paid full salary for one year. According to Counsel, at the time
the application was heard and granted on 25th February 2022, the period for the
payment of the half-salary had elapsed, and therefore a legal objection was
raised but same was overruled. It is the Applicant’s case that if the ruling is
not stayed the payment made would be in breach of the CBA (Article 11 B (iv)
and would also mean the Court has re-written a new contract for the parties.<o:p></o:p>&nbsp;It is contended that the order made is ambiguous and in
contravention of the Collective Bargaining Agreement (CBA) signed between the
Bank and the Plaintiff as an employee. The ambiguity argument is based on the
fact that though the court below restrained the Applicant from reviewing the
remuneration of the Respondent downwards, it at the same time ordered that
payment of half salary/remuneration to the Plaintiff continues pending the
final determination of the case.<o:p></o:p>&nbsp;Counsel further submitted that the Bank will suffer
hardship as it could pay the respondents' salary for an indefinite period and
she may not be in a position to refund if she is to lose the case after trial
or the award made is less than payments she had received.<o:p></o:p>&nbsp;It is also the argument of Counsel that directors of the
Bank stand the risk of being cited for contempt should they fail to comply with
the order. Counsel submits that these are exceptional circumstances that
warrant the grant of the application.<o:p></o:p>&nbsp;Responding to the arguments of Counsel for the Applicant,
Counsel for the Respondent submitted that the instant application is a ploy by
the Applicant to delay the suit. According to Counsel granting the instant
application and thus stopping any payment to the Respondent would have serious
effects on the respondent because she would not have any money to support
herself as she undergoes treatment for the injury sustained while working for
the Applicant Bank. Respondents' Counsel further submitted that Articles 35 and
36 of the CBA are applicable as the combined reading of both show that the Bank
ought to have continued with the full payment of the salary because the
Plaintiff is on sick leave based on medical advice and documents submitted to
the Bank. Counsel submitted that the Plaintiff agreed to accept the half salary
based on the Court order and not on Section 36 of the CBA. He therefore prayed
the Court to dismiss the application.<o:p></o:p>&nbsp;Now, it is worth recalling that this is an application
for Stay of execution, and the Order sought to be stayed is about the payment
of money. The principles upon which an application of such nature are granted
are well defined. The underlying principles include the fact that the Applicant
must demonstrate that there are exceptional circumstances to warrant a stay.
The court ought also to consider whether the grant or refusal of the
application will work greater hardship on either party and also, whether a
successful appeal would be rendered nugatory among others.<o:p></o:p>&nbsp;See Joseph vs
Jebeille[1963] 1 GLR 387 SC., Djokoto &amp; Amissah vs. BBC Industrial Co
(Ghana) Ltd. &amp; City Express Bus Services Ltd [2011] 2 SCGLR 825.<o:p></o:p>&nbsp;Based on the law and the facts presented, we are
satisfied that the grounds upon which this application is brought rai</main>