IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
BENNETT ACQUAH IMPRAIM & 204 OTHERS - (Plaintiffs/Respondents)
UNIVERSITY OF GHANA - (Defendant/Appellant)
DATE: 12 TH APRIL, 2018
CIVIL APPEAL NO: H1/184/2016
JUDGES: FRANCIS KUSI-APPIAH J.A. (PRESIDING), AVRIL LOVELACE-JOHNSON J.A., HENRY A. KWOFIE J.A.
JOSEPH N. NKRUMAH FOR THE PLAINTIFFS/RESPONDENTS
NANIA OWUSU-ANKOMAH FOR THE DEFENDANT/APPELLANT
HENRY KWOFIE J.A.
The defendant/appellant (hereinafter referred to as the defendant) being dissatisfied with the judgment of the High Court, Accra Financial and Economic Crime Division) dated the 7th of December 2015 lodged an appeal against the judgment.
The notice of appeal dated 19th February 2016 is at pages 666-671 of the Record of appeal. The grounds of appeal set out in the Notice of Appeal were:
a) The Judgment is against the weight of evidence before the trial judge.
b) The learned judge erred by failing to hold that the conditions of service for unionised staff of Public Universities does not provide for ex-gratia payments to take retrospective effect.
c) The learned judge erred when she held that the new Single Spine salary which was implemented after the respondents retired from the appellant was their salary at the date of their retirement.
d) The learned judge erred when she held for the respondents on the basis that the appellant did not prove that ex-gratia are paid from internally generated funds.
e) The learned judge erred where she held for the respondents on the basis that the appellant paid salary arrears to the Respondent after they had retired and therefore the respondents are also entitled to the difference in their ex-gratia payment.
f) The learned judge erred when she held that the 2nd, 3rd, 4th, 5th, 6th, 7th and 198th Respondents had made a proper case for review.
The judgment appealed against is at pages 476-488 of the Record of Appeal.
The reliefs sought from the Court of Appeal were that part of the judgment of the trial judge complained of and the costs be set aside; that the entire ruling of the trial judge be set aside and judgment entered for the defendant.
Before dealing with the arguments advanced in support and against the appeal, I will give a brief background of the case.
All the 205 plaintiffs were former employees of the defendant who had retired from the services of the defendant between the period July 2010 and July 2011. They had each served the defendant institution in various capacities for over 10 years before retiring. By an amended writ of summons the plaintiffs claimed against the defendant the following reliefs:
1. Arrears of Ex-Gratia awards based on the Single Spine Salary Structure Policy (SSSSP) upon which salary arrears were paid to plaintiffs by defendant.
2. Interest on all monies due each plaintiff from September 2011, the date plaintiffs were migrated unto the SSSSP until the final date of payment at the prevailing Commercial Bank lending rate.
3. An order directing the defendant to transfer all SSNIT Contributions deducted from plaintiff salaries which have not yet been paid including defendants own statutory contribution that ought to be added for SSNIT to work out any arrears due plaintiffs.
4. Cost of 10% on the principal amount to be paid to each plaintiff as legal fees.
5. Any other reliefs as the Court may deem fit.
According to the plaintiffs, by the conditions of service of the defendant any employee who had served in the defendant institution for more than then (10) years shall on retirement be paid an ex-gratia award of one month’s salary for every successful year of service. It is their case that employees of the defendant were migrated to the Single Spine Salary Structure Policy (SSSSP) in January 2010 but the commencement or implementation of the policy took effect from September 2011. They contend that even though they had all then retired, the defendant deemed it fit to pay them their salary arrears with the explanation that they should have been given or paid higher salaries effective January 2010 but for the delay in implementing the new salary structure. It is their case that before their salary arrears were paid to them, they had been paid their ex-gratia based on the old salary and that the calculation of their ex-gratia should be based on their new post SSSS salary in January 2010 upon which they were paid their salary arrears. They further state that their Social Security Contributions were deducted from the salary arrears paid to them but same was not paid to the Social Security and National Insurance Trust (SSNIT) to be used in calculating their pensions with the result that SSNIT used their old salaries in calculating their pensions.
The defendant denied the plaintiffs claim. The defendant admits that ex gratia award is based on the salary of the employee at the time of retirement. They contend that they received a letter from the government to migrate its employees to the Single Spine Salary Structure in September 2011 to take retrospective effect from January 2010. It is their case that when the SSSSP was implemented, the government made funds available for the payment of arrears to the plaintiffs. Further, that ex-gratia awards which are part of the conditions of service for its unionised staff who have served for a minimum of ten (10) years at the time of retirement is generated from the defendant’s internally generated funds and are calculated based on the employee’s salary at the time of retirement. It is the defendant’s case that the payment of ex-gratia does not take retrospective effect and it informed the plaintiffs that it is unable to pay any additional ex-gratia awards to them because when the SSSSP came into effect they (the plaintiffs) had already retired and that unlike the salary arrears paid to the plaintiffs which the government provided funds for, the ex-gratia awards are paid from the defendant’s internally generated funds.
At the trial, the plaintiff testified through the 1st plaintiff Benneth Acquah Impraim whilst the defendant also testified through Anaab Anaamoatulim, a salaries Accountant at the defendant institution. At the end of the trial, the trial judge entered judgment for the plaintiffs for reliefs 1 and 2 as endorsed on their amended writ of summons.
The trial judge however excluded seven plaintiffs from benefitting from the judgment on the grounds that they had not worked for more than 10 years at the time of retirement and were therefore not entitled to their claims. Subsequent to the judgment, these seven plaintiffs applied for a review of the judgment on the grounds that the decision of the trial judge to exclude them because they had not worked for 10 years at the time of their retirement was a mistake and therefore amounted to an error on the face of the record. In a ruling delivered on 29th January 2016, the trial judge granted the application for Review of the 7 plaintiffs and accordingly entered final judgment in terms of relief (1) and (2) of the amended writ of summons for the 7 plaintiffs as well.
Counsel for the defendant argued grounds (b) (c) (d) and (e) of the grounds of appeal separately but having regard to the view I have taken of the issue raised in this appeal, I will take the arguments in all the 4 grounds of appeal together and thereafter deal with ground (f) separately.
In arguing the appeal, counsel for the defendant submitted that the trial judge erred by failing to hold that the provisions on the payment of ex-gratia in Exhibit AA3 do not take retrospective effect and thereby misdirected herself in her conclusion that the respondents are entitled to further ex-gratia payment. He submitted that although the respondents salaries were determined and paid by the government, ex-gratia awards were paid from the appellant’s internally generated funds.
It was argued that the appellant calculated and paid the ex-gratia awards to the respondents when they retired based on what their salary was at the time. Counsel further asserted that the trial judge erred when she held that the respondents salary at the date of their retirements for the purpose of calculating their ex-gratia payment was their post-SSSSP salary and not their pre-SSSSP salary. He continued that the respondent’s salary at the time of their retirement was the pre-SSSSP salary since the migration of the appellants’ employees unto the SSSSP did not occur until late September to October 2011 when all the respondents had retired. Counsel further asserted that the trial judge further erred where she held for the plaintiffs on the basis that the defendant did not prove that ex-gratia awards are paid from internally generated funds and added that the case of the appellants which was supported by the evidence was that the respondents salaries were determined and paid by the government, whilst ex-gratia awards were paid from the appellants internally generated funds. Finally, counsel submitted that the trial judge erred when she held that the appellant had paid salary arrears to the plaintiff after they had retired and therefore the plaintiffs were also entitled to the difference in their ex-gratia payments.
In response to the arguments canvassed in support of the appeal, counsel for the plaintiffs submitted that ex-gratia payments are made based on the salary at a particular point in time and the salaries of the plaintiffs as at January 2010 was the salary upon which they were paid their salary arrears and their ex-gratia awards should be based on those salaries.
He continued that the trial judge did not err in holding that the new Single Spine Salary upon which the plaintiffs were paid their salary arrears was indeed their salaries at the time of their retirement. Counsel stated that when the appellant was asked by the government to submit the list of its employees who qualify to be paid salary arrears effective 1st January 2010, the appellant deemed it fit to include the names of the respondents upon which they were all paid salary arrears effective 1st January 2010 and the appellant was thus under an obligation to pay the difference in the ex-gratia award. Finally, he submitted that the trial judge was perfectly right based on the evidence on record to hold that the plaintiffs were entitled to the difference in their ex-gratia payment.
It is well established by Rule 8(1) of the Court of Appeal Rules 1997 (C.I. 19) that an appeal is by way of re-hearing. The duty of an appellate Court was summarised succinctly in the case of Klimatechnik Engineering Ltd Vs Skanska Jensen International (2005-2006) SCGLR 913 where the Supreme Court per Wood J.SC. (as she then was) said at page 933:
“…………..the appellate jurisdiction of this Court (an appellate Court) involves an examination of the evidence adduced as a whole with a view to determining whether the conclusions of the lower tribunal is supported by the evidence adduced”
Also in the case of BISI Vs TABIRI alias ASARE (1984-86) GLR 282 Adade JSC delivered himself thus as follows:
“As a judge of fact, it is his peculiar province listening to the evidence before him to weigh the several statements on each issue and to decide which to believe and which to reject. So long as his conclusions can find support from the evidence on record, it is not open to an appellate tribunal, except for just and compelling reasons to dismiss the findings made and the conclusions arrived at by the trial Court”.
Accordingly, it is the duty of this Court to go through the oral and copious documentary evidence to determine whether indeed the findings of fact and the conclusions arrived at by the trial Court is supported by the evidence adduced at the trial.
Although the first ground of appeal set out in the Notice of appeal was the omnibus ground that the judgment is against the weight of evidence, counsel for the appellant failed to make any submissions in respect of this ground. Accordingly, that ground of appeal is deemed to have been abandoned.
Having perused the record of appeal and having read the written submissions of both counsels, it is clear that the fundamental issues to be considered in this appeal are, firstly, what was the real salary of the plaintiffs at the time of their retirement and whether or not the plaintiffs were entitled to the payment of arrears of ex-gratia
The pleadings and the evidence shows that by the provisions of the conditions of service of the defendant, any employee who had served for more than ten (10) years in the organisation shall be paid an ex-gratia award of one (1) month salary for every successful year of service on retirement. There was no dispute about this. In paragraph 4 of the statement of claim, the plaintiffs pleaded as follows:
“4 Plaintiffs state that by the provisions of the conditions of services of the Defendant, any employee who has served for more than ten(10) years in the organization shall be paid an Ex-Gratia award of one (1) month’s salary for every successful year of service on retirement”.
The defendant in their statement of defence pleaded in paragraph 4 thereof as follows:
“4 The Defendant admits paragraphs 4 of the Statement of Claim and states that the Ex-Gratia award is calculated based on the salary of the employee at the time of retirement”.
The evidence also shows that the 1st to 114th plaintiffs retired in July 2010 whilst the 115th to 194th plaintiffs also retired in July 2011. The trial judge found as a fact at the end of the trial that most of the plaintiffs had served at various capacities within the defendant institution for over ten (10) years before retiring.
It is also not disputed and the trial judge found as a fact that all the plaintiffs were paid their respective ex-gratia awards on retirement in 2010 and 2011 based on their respective salary at the time. But as already indicated, the issue that has provoked this litigation and hence this appeal is whether the salary of the plaintiffs that was used in computing their ex-gratia awards was the correct one. Whereas the plaintiffs contend that the correct and real salary was not used in the calculation, the defendant assert the contrary and contend that the correct salary of the plaintiffs at the time of the retirement was what was used for the calculations.
It is not disputed from the record and the evidence that the ex-gratia awards paid to the plaintiffs were based on the salary they were taking at the time of retirement in 2010 and 2011 respectively.
The evidence on record shows that sometime in October 2011 the Minister of Finance wrote to the Executive Secretary, National Council for Tertiary Education (NCTE) copied to all the Vice chancellors of the Public Universities informing them of the placement of the Junior and Senior Staff of Public Universities on the Single Spine Salary Structure (SSSS); See Exhibit AA7 tendered by the defendant at pages 625 and 626 of the Record. Per Exhibit AA7 “the effective date of implementation is 1st January 2010”. The records show that by another letter dated 25th November 2011 (Exhibit AA8) at page 629 of the Record of Appeal, the Minister of Finance authorised the Controller and Accountant General to pay the salary Arrears for 2010 and 2011 on the Single Spine Salary Structure. Again the records shows that by another letter dated 10th January 2012 Exhibit AA9 at pages 630 and 631 the Minister of Finance gave approval for the placement of Academic Senior Members of Public Universities on the Single Spine Salary Structure (SSSS) with the effective date of implementation being 1st January 2010.
The evidence also shows that the new Salary Scale based on the Single Spine Salary Structure was higher than the Salary existing before the implementation of the SSSP. Consequently, all employees of the defendants including the plaintiffs who had then retired were paid their salary arrears based on the new and higher SSSP.
After receiving their salary arrears for 2010 and 2011 based on the new SSSP, the plaintiffs requested for the payment of the arrears of their ex-gratia award based on the new SSSS. The record shows that the defendant refused to pay the arrears of the ex-gratia on the grounds that the ex-gratia awards are paid from the defendants internally generated funds and unlike salary arrears which the government made funds available for, the ex-gratia awards do not take retrospective effect.
Under cross-examination, the defendant’s representative Anaab Anaamoatulim was asked as follows at page 441 of the Record of Appeal:
Q. When was the University migrated to the Single Spine Salary Policy?
A. My lord I have to refer but we received the letter on 1st January 2010 but the implementation was in September.
Q. Now you will agree with me that all employees at the University were paid salary arrears effective 1st January 2010.
Q. Were the plaintiffs in employment when salary arrears were being paid?
A. They were not.
Q. Were the plaintiffs paid salary arrears effective 1st January 2010
A. My lord it is true.
Q. Those who retired in 2011 were given over one-year salary arrears.
A. Yes my lord.
Q. Those who retired in 2010 were given 6 months salary arrears
A. Yes my lord
Q. Why did you decide to pay their salary arrears when they were not your employees?
A. My lord I think the arrears was paid for the period they worked in the University.
Q. And you will agree with me that the ex-gratia is computed on salaries as at the time of their employment with the defendant?
A. My lord it is true.
Q. You paid their salary arrears effective January 2010 because that should have been their salary?
A. Yes my lord.
Q. And the computation of ex-gratia is based on the salary as at the time you retire?
A. Yes that is what we do.
Further on the defendant representative was asked at page 443 of
The Record of Appeal:
Q. So the arrears which were paid to the plaintiffs was based on the real salary that they should have earned effective January 2010 is that not true.
A. That is true.
Q. So when they were retiring in July 2010 and 2011 respectively they were entitled to those salaries?
A. My lord that is why they were paid.
Clearly, on the defendant’s own showing, the real or correct salary of the plaintiffs as at January 2010 was the new SSSS implemented on 1st January 2010 and based on which the plaintiffs were paid their salary arrears even though they had retired.
It follows that the calculation of their ex-gratia awards should also be based on the new Single Spine Salary As the trial judge rightly found, the plaintiffs were entitled to be paid arrears of the ex-gratia awards based on the new Single Spine Salary. The contention of the defendant that ex-gratia awards are paid from the defendant institution’s internally generated funds and therefore does not take retrospective effect is untenable. In my view, the source of funding for the payment of ex-gratia award is irrelevant or immaterial to the determination of the issue of whether or not the plaintiffs were entitled to the arrears. i.e. whether the payment of ex-gratia award is to take retrospective effect.
Grounds (b) (c) (d) and (e) have no merit and are accordingly dismissed.
In respect of ground F, counsel for the defendant contended that the trial judge erred when she held that the 2nd, 3rd, 4th, 5th, 6th, 7th and 198th plaintiffs had made a proper case for a review of the judgement. Counsel referred to Order 42 rule (1) of the High Court (Civil Procedure) Rules 2004 (C.I. and submitted that the review application is only to be exercised in exceptional circumstances and that no such exceptional circumstances were advanced by the respondents in their application for review. He further submitted that the reasons advanced by the respondents were not sufficient enough to warrant a review of the Court’s judgment.
On the other hand counsel for the respondent submitted that there were some errors and mistakes apparent on the face of the record. The names of the plaintiffs, the department under which they worked and their various designations or positions as well as their length of service had been clearly stated in Exhibit AA1 and AA15. These were the defendant’s own exhibits and they could not turn around and complain when information in their own exhibits were used for the purpose of the review application.
In her judgment, the trial judge had stated that not all the plaintiffs had worked with the defendant for more than (10) years and those plaintiffs were not entitled to be paid ex-gratia awards. Specifically at page 484 of the Record of Appeal the trial judge stated as follows:
“Exhibits AA1 and AA15 states names of those who retired in 2010 and 2011 and also the number of years each employee worked before retiring. Augustine Osei, Albert Akongo Agelategye, Henry Ahiawor, George Kumehia, Kumi O. Larbi, Beatrice Quarshie, Paul K. Amoo, William Botchway, Professor C.C. Mate-Kole, Daniel Ntiamoah, Atenia Joachim Victor, Micheal Atarli, Veronica Agyenfra, Nichodemus Abaya and Anothny Danso worked at the defendant’s institution for less than ten (10) years before their retirement. By reason of the above, I find as a fact that not all the plaintiffs had worked with the defendant for over ten (10) years and the above named plaintiffs who had not served for a minimum of ten years before retiring are not entitled to be paid ex-gratia and not entitled to their claims”.
Subsequent to the judgment, the plaintiffs filed a motion for review of the judgment pursuant to Order 42 of C.I 47 on the grounds that there has been a fundamental error on the face of the record which had occasioned a miscarriage of justice.
The basis of the application was that the trial judge’s finding that some of the named employees per Exhibit AA1 and AA15 had not worked for a minimum of ten (10) years and therefore not entitled to the payment of ex-gratia awards was an error.
Order 42 rule 1of the High Court (Civil Procedure) Rules 2004 (C.I.47) provides:
“42 (1) A person who is aggrieved
(a) By a judgment or order from which an appeal is allowed but from which no appeal has been preferred or
(b) By a judgment or order from which no appeal is allowed,
may upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within that person’s knowledge or could not be produced by that person at the time when the judgment was given or the order made or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, apply for a review of the judgment or order”.
In the case of Afranie Vs Quaicoo (1992) 2 GLR 561 at 609 S.C. the Supreme Court per Aikins JSC stated with regard to the review jurisdiction as follows:
“It is essential that this Court accommodates a re-examination of the judges’ previous thinking…….. with a view to correcting a fundamental mistake that has occurred. If this is not done, the exercise of the review power would end in futility and would only serve to rubber stamp or confirm a previous stance of the Court which may result in a miscarriage of justice”.
See also Mechanical Lloyd Assembly Plant Ltd Vs Nartey (1987-88) 2 GLR 598 at 603
There is no doubt that the trial judge made a fundamental mistake when she stated in her judgment that Exhibits AA1 and AA15 showed that the 6 named employee had not worked for a minimum of ten (10) years and were therefore not entitled to the payment of ex-gratia awards and were thus not entitled to their claims. The record shows that Exhibit AA1 and AA15 were tendered in evidence by the defendant.
Exhibit AA1 and AA15 are at pages 315 and 317 of the Record of Appeal. Contrary to the trial judge’s assertion, Exhibit AA1 and AA15 shows the names and length of Service of the 2nd, 3rd, 4th, 5th, 6th, and 7th plaintiffs who had all worked for more than 10 years as follows:
Length of Service
1. Augustine Osei (2nd plaintiff) 24 years 8 months
2. Albert A Ayeletegyo (3rd plaintiff) 24 years 9 months
3. Henry K. Ahiawor (4th) - 34 years 5 months
4. George Kumahia (5th) - 35 years 1 month
5. K.O. Larbi (6th) - 27 years 8 months
6. Beatrice Quarshie - (7th) 28 years 7 months
The exhibits tendered by the defendant and which were part of the evidence before the trial judge clearly showed that the trial judge made a fundamental error in dismissing the claim of the 2nd to 7th plaintiffs on the ground that they had not worked for the minimum of 10 years which findings flies in the face of the defendant’s own Exhibits AA1 and AA15.
In my view the trial judge was therefore right in granting the application for review to correct an obvious error which had occasioned a gross miscarriage of justice.
With respect to the 198th plaintiff, Exhibit H series which on the evidence could not be produced from the custody of the defendant showed that the said 198th plaintiff Nicodemus Abaya had worked with the defendant for Twelve years 6 months and had been paid his ex-gratia award as well as the arrears on the Single Spine Salary Structure. The trial judge clearly sought to correct an error which had occasioned a gross miscarriage of justice and rightly granted the review application in respect of the 198th plaintiff.
Ground F has no merit and is accordingly dismissed. On the whole, the appeal has no merit and is accordingly dismissed.
The judgment of the trial Court is accordingly affirmed.
HENRY A. KWOFIE
(JUSTICE OF THE COURT OF APPEAL)
I AGREE FRANCIS KUSI-APPIAH
(JUSTICE OF THE COURT OF APPEAL)
I ALSO AGREE AVRIL LOVELACE-JOHNSON
(JUSTICE OF THE COURT OF APPEAL)