GYAESAYOR, JA

The plaintiff/appellant a mining engineer by profession until 20^th September 1991 when he was declared redundant was an employee of Ashanti Goldfield Limited. He was employed on 2^nd May, 1991.

In the High Court, he claimed in paragraph 2 of his statement of claim that he was unfairly and wrongly terminated.

It is his case that whiles on duty underground on 13^th September 1995 he inhaled blasting fumes which he reported to the company clinic. As a result according to him, he developed an itching throat and headache and was subsequently diagnosed as experiencing Bells palsy and transient cerebral ischemic syndrome.

As the evidence shows, plaintiff was referred to the Korle Bu Teaching Hospital where it was found that a tumor had grown on his brain which necessitated surgery on his head to have the said tumor removed.

On his discharge from Korle Bu he was taken to the technical Department for light duties upon the recommendation of the doctor. On 20^th September 1999, his appointment was terminated on the grounds of redundancy due to the rationalization of manpower need of the company and paid all the entitlements due to him.

In the penultimate paragraph of his statement of claim, plaintiff claimed that the termination of his appointment at a time when he was receiving treatment pending the receipt of a final medical report was unlawful.

In his quest for justice, he took out the writ of summons on 30^th day of March 2004 and endorsed the following reliefs;

a. A declaration that the termination of plaintiff’s appointment on 20th September, 1999 before the defendant requested a final medical report from the neurosurgeon at Korle-Bu was wrongful.

b. Damages for the wrongful termination

c. Costs

The defendant admitted that plaintiff was their employee for the period claimed but denied that her action was unfair and unlawful. They also denied that the illness of plaintiff was work related because upon medical examination no such link was found. In short the defendant denied that her action was unfair and unlawful.

In the ensuing trial in the high court the following issues were set down for trial:

a. Whether plaintiff in 1995 whiles on duty underground inhaled blasting fumes and reported at the company’s clinic.

b. Whether plaintiff repeatedly reported at the clinic with itching throat and headaches.

c. Whether plaintiff was on several times admitted at the AGC hospital.

d. Whether plaintiff petitioned AGC Hospital authorities before he was referred to a specialist

e. Whether plaintiff was diagnosed to have a brain tumor and later operated upon.

f. Whether plaintiff after the surgery was sent from the underground operation to the technical Department on secondment.

g. Whether plaintiff’s appointment was terminated whiles still receiving treatment.

h. Whether the defendant wrote to the specialist requesting a final report on plaintiff on 22^nd November 1999 while plaintiff appointment was terminated on 20/09/99.

i. Whether plaintiff’s appointment was unfairly terminated.

j. Whether plaintiff is entitled to the reliefs endorsed on the writ of summons.

After the trial was concluded, the trial judge dismissed the claim of plaintiff as lacking merit and an afterthought calculated to vex the defendant.

The plaintiff, not satisfied filed the appeal per notice of appeal dated 10-8-2010. The notice of appeal can be found at p.188 of the record of appeal. In the appeal, the plaintiff appeals against the whole judgment of 1^st May 2010 on the sole ground that “the judgment is against the weight of evidence and that further grounds will be stated on receipt of the records of proceedings”. The plaintiff sought only one relief from the court i.e. to set aside the judgment of the High Court dated 21/5/2010.

No further grounds of appeal have been filed. This court is therefore to determine the only ground of appeal filed.

In an appeal of this nature where the sole ground is the omnibus ground as stated by plaintiff, it is the duty of the plaintiff to point out lapses in the judgment or to show that the evidence on record was not appropriately applied to his case or was done without recourse to the law. See Djin vrs Musa Baako [2007-2008] SCGLR 686 where the Supreme Court held:

“Where (as in the instant case) an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapse in the judgment being appealed against”. In this case, it is the duty of the court to examine the entire record to see if the trial judge properly applied the facts and the law to the case and arrive at its own decision since an appeal is by way of rehearing.

See Tuakwa vrs. Bosom [2001-2002] SCGLR 61

Failure to satisfy the appellate court in all these will result in the dismissal of the appeal.

Now the case before us is that the appointment of plaintiff was unfairly and wrongly terminated. At this stage I wish to point out that the incident complained of occurred before the coming into force of the present Labour Act in October, 2003. However, this action was filed in 2004 when the existing Labour Act had been repealed.

A look at the endorsement does not disclose that plaintiff was terminated because he was ill but as a matter of fact the plaintiff seems to suggest that his termination was unfair and wrong because it was done at a time he was receiving treatment. DW1 James Kenneth Aidoo from the Human Resource Department testified that the redundancy exercise was done because there was labour rationalization of the manpower needs and the exercise affected both junior and senior staff.

The appellant was not the only senior staff who was affected by the exercise. About four hundred senior staffs were affected. The plaintiff was notified about the redundancy before he was declared redundant. The plaintiff was given one month pay in addition to one month notice, paid a redundancy package of 15% of his annual salary multiplied by the number of years he had worked, provident fund and outstanding leave and also paid repatriation allowance.

The plaintiff did not deny this assertion and indeed admitted in cross-examination at page 84 that he received this package. The following cross-examination throws light on this:

Q. -At the time you were declared redundant you were in active employment of the defendant company

A. – Yes

Q. - You were paid all your benefit upon your being declared redundant

A. - Yes, but after my protest had failed

Q. - You were declared redundant along with other officers

A - Yes

This dialogue clearly demonstrates that he was not the only officer singled out for termination which amount to discrimination or unfairness. In any event unfair termination in the light of the court decisions is not one which the courts of law have jurisdiction.

In Bani vrs Maersk Ghana Ltd [2011] SCGLR, the Supreme Court said in plain language that the courts of this country have no jurisdiction to adjudicate complaints of unfair termination or employment. This is the preserve of the National Labour Commission. The High Court could therefore not entertain an action based on unfair termination. Indeed the Labour Act gives the power to the Labour Commission under Section 64(1) of the Labour Act to determine such matters. In so far as the plaintiff relies on unfair termination, this court will dismiss the appeal for want of jurisdiction.

We have taken a look at the conditions of service of senior staff of the company to which the plaintiff belongs. It provides the following as the methods by which an employee may leave the company

1. Discharge

2. Resignation

3. Retirement

4. Death

In this case the action by Defendant Company falls under discharge which is a legitimate process by which the plaintiff could exit the company. From the plaintiff’s own showing this was lawfully done and was paid all the benefits accruing to him.

It is his duty to show that the defendant did not comply with the condition of service which is the document which defines the relation between the employer and the employee.

It is unfortunate that the action was taken when he was undergoing treatment. This court will not however enter judgment for plaintiff on account of sympathy. Moreover the medical evidence on record shows that he had brain tumor which has been found not to be job related or a result of inhalation of fumes whiles at work. Since he has been paid his redundancy package in full and which he received he is estopped from making further claims. No wonder the action was brought about five years after he had ceased to work with the defendant. The learned trial judge did not go beyond her bounds when she found that the action was an afterthought and designed to vex the defendant. On the whole we find that the plaintiff had not satisfied this court that the judgment was against the weight of evidence and the appeal must fail.

We shall therefore dismiss the appeal.

The appeal is accordingly dismissed as lacking merit.

SGD

P. K. Gyaesayor

(Justice of Appeal)

                                                 SGD

Korbieh, JA    I agree                         F. G. Korbieh

                                                       (Justice of Appeal)

                                                    SGD

Welbourne, JA           I agree            M. Welbourne (Mrs)

                                                                     (Justice of Appeal)