JAMES TORGBOR TORTO v GRAPHIC COMMUNICATIONS GROUP LTD. [09/06/2004] SUIT NO. MISC.

302/2003 OS.

IN THE HIGH COURT OF JUSTICE, GHANA, HELD IN ACCRA ON

THE 9TH DAY OF JUNE, 2004 BEFORE HER LORDSHIP

MRS. CECILIA HANZZY SOWAH, J.

In assessing the damages for wrongful dismissal, I am mindful of the views expressed by Amua Sekyi JSC
in GNTC V Baiden 1991 1GLR 567 SC and Apaloo CJ in Zacca v CFAO 1969 CC 156, that it would be
unreasonable to award damages for the period extending from the date of the cause of action to the
date of judgment especially if the time lag between those dates is say 3 years.  In this instant case, the
cause of action arose on 7/12/99 when Applicant became entitled to be reinstated.  The time lag is thus
over 4 years.

To the contrary, Akorful v State Fishing Corp cited by counsel for Respondent does not support her
submission that the benefits of Applicant should be determined as at the date of his dismissal on
27/3/92.

From the above facts and analysis, in my judgment, Applicant is entitled to the following under the CBA:

1. Declaration that under the CBA there is no lawful justification for respondent refusing to pay the
Applicant his half salary from 27/3/92 to 7/12/99

2. Declaration that there is no lawful justification for the Respondent to continue to hold onto
Applicant's End of Service Benefit (ESB)

3. Restoration of full salary from the date of his interdiction 27/3/92 to the date of his acquittal 7/12/99.

4. Accrued ESB calculated up to 7/12/99.  Respondent has not indicated the alleged liabilities of
Applicant, nor has it in the 11 years notified Applicant of those liabilities.  I do not think they are entitled
to make any deductions from Applicant's accrued benefits.

5. Interest on the accrued benefits at the prevailing Bank rate calculated from 30/8/93 to the date of
judgment

6. Award of two years salary as damages in lieu of reinstatement and for wrongful dismissal.

Declaration accordingly.

I award costs of ¢10 million to the applicant.

AUGUSTINE ACKERSON & OTHERS v. TAKORADI FLOUR MILLS LIMITED. [23RD MAY 2002] CA/NO.
43/2001.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA – GHANA

I now turn to the grounds of the cross-appeal I think I have set them out already.   In support of
that ground it was submitted that “having regard to the period of their dismissal, which was February
1990, and considering the fact that as at 28th November 1991, when the plaintiffs gave evidence, the
1st and 2nd plaintiffs were unemployed …(they) described themselves as unemployed, and it was wrong
for the trial judge to state that “It would have taken each plaintiff about 5 months to look for alternative
job”.  In fact 21 months after their dismissals, some of the plaintiff, had not found any other work.  The
general trend on the labor front in the 1990s was that it was very difficult to get employment.  Counsel
invited this court to take judicial notice of this fact.  In the case of the third plaintiff, though he secured a
new employment, it was only as an administrative officer whereas he was an accountant by profession. 
The plaintiffs therefore complained that it was wrong for the trial judge to say that five months was
adequate for each of them to find another work.  I wish to express my disagreement with that
submission by counsel for the cross-appellants.  When the trial judge said that the appellants could
secure employment within 5 months what he meant was that was a reasonable time within which they
could do so.  He could not have meant that within the period they would at all cost get new employment
so that if they did not, then he was wrong.  What must be borne in mind is that in cases of this nature, as
in all torts, the principle is that the plaintiff is under a duty to mitigate his loss.  In fact when a similar
situation arose in Ghana National Trading Corporation v. Baiden [1991] 1GLR 567 SC, Francois JSC said at
page 576 that the onus lay on the plaintiff therein to show the efforts he made to mitigate his losses.
Those efforts could include the production of copies of letters he wrote to seek some gainful
employment but were turned down, and generally his personal efforts to lift himself from an economic
morass. I think that is  the principle to apply in this case. It was beyond dispute that the plaintiffs were
dismissed in February 1989. They took their action on 2nd May 1990 and judgment was delivered on
13th February 1992, a period of about 21 months. The plaintiffs, it was submitted, gave evidence on
28th November 1991. As at that time they were still unemployed and that gave rise to the criticism
against the five months period allowed by the court. Counsel referred to Ghana Cocoa Marketing Board
v. Agbettoh [1984-86] 1 GLR 122 and submitted that the plaintiffs should be awarded 24 months salary. 
Agbettoh’s case must be studied very carefully.  It has often been cited as if it ever sought to or did lay
an inflexible rule that must be applied in all cases and to the effect that in all cases of wrongful
dismissals the period of which damages should be awarded must be 24 months. That case in my view
should not be so construed for it did not lay down any such rule.  The plaintiff/respondents in that case
were dismissed from their employment on 26th November 1979.  The High Court had declared their
dismissals unlawful and also granted the defendants an order of perpetual injunction to restrain the
defendants from ejecting them from their bungalows. The Board sought a reversal of this judgment, and
the Court of Appeal said at page 131 that it saw some practical difficulties in it as well as paying them
their salaries.  These were that to affirm the order would amount to securing them bungalows they had
when they were in actual service of the board.  To also order that they were paid for the period during
which they did not work for the Board would be to set their face against realities.  The court went on to
say that the reality of the situation was that although de jure they were technically in the service of the
Board, de facto, they had ceased to be so since November 1979. Considering all the circumstances of the
case the court ordered the appellant board to compensate each respondent as compensation, two
year’s salary from November 1979. In the result the call for the workers to be paid their full salaries
would be as if they were in actual rather than constructive service of the board.  Those order where
disaffirmed and set aside. When it was considered that the Court of Appeal gave its judgment on 8th
November 1984, then it meant that the period run from the date of the dismissals, that was 26th
November 1979 and ended on 26 November 1981. It certainly did not cover the whole period between
the date of the dismissal to the date of the judgment, 8th November 1984, a period of five years.  The
reality of the case did not allow that to be done.  So that what Agbettoh’s could safely be said to have
decided was that in awarding the period for which the award should run the court must be guided by
the reality of the case, or “all the circumstances”, of each case in particular.  Once again I make bold to
say that Agbettoh did not lay it down as an inflexible rule that in all cases of wrongful dismissals a
successful plaintiff must at all cost be awarded two years salary.  Rather it is clear from that case that in
awarding damages for wrongful dismissals the court was enjoined to look at the realities of each
particular case.  More importantly, the court should be careful not to make any award that would tend
to show that the worker was being paid for work he did not do.  I therefore refuse to follow that case
and make that award.  Learned counsel for the respondent submitted that even if the dismissals were
found to be unconscionable, the workers were entitled to one month’s salary, as that would be in lieu of
notice.  A similar point was made in Hemans v. G.N.T.C. [1978] GLR 4, where it was held as per holding
(3) at page 5 that where the compensation for lawful termination of contract of employment was one
month’s pay, it would appear preposterous to award the same one month’s salary where the
termination was unlawful.  The C.A proceeded to award what was felt to be just in the case.  In this case
too I do not think it would be any less preposterous if I should accede to the submissions of counsel   for
the respondents.  I rather reject that submission.  I also wish to state that that the cross-appellants were
under an obligation to minimize their losses by seeking and obtaining alternative jobs was emphasized
upon at p131. It was therefore wrong for counsel for the appellants to submit “the defendant/appellant
did not also lead evidence that work was readily available but the cross-appellant have refused to work”.
By so saying, counsel was putting the onus of proof on the defendants and that was wrong.

Another submission by the cross/appellants that must be considered with all seriousness was the one
that went as follows:

“I will submit that the current salary assigned to positions that they were occupying should be the
proper method of compensating them.”

It is instructive to learn that a not too dissimilar claim was put up in Arkorful v. State Fishing Corporation
[1991] 2 GLR 348.  In the present case no such claim like ‘ the estimated current value (at the date of
judgment) of salaries from …’ was made.  Osei-Hwere JA (as he then was) said of this claim that he did
not think he could admit such a claim, for the fear that if entertained would open the flood gates to
embrace such an economic loss as a new head in assessing damages in breach of contract.  That per se
would not prevent this court from making that award if there was evidence to support it.  I have read
the reply to the submissions in response by the respondents and I must confess it did not appear to me
that the decision in Arkorful’s case on a claim based on the “estimated current value” at the date of
judgment was well appreciated.  I do not think counsel for the cross appellants succeeded in satisfying
me that where a court was considering the award of damages the yardstick should be the estimated
current value of the lost salaries.  Like Osei-Hwere J, I also think that invitation is still dangerous and I
reject it.  If anything at all, it is the lost salary as it was at the date of the wrongful dismissal that must be
used in the computation.  In other words, a judge who proceeds to award damages for wrongful
dismissal is to make only a fair and reasonable estimate of the period within which the plaintiff could
secure an alternative employment.  At that stage he would not, and in fact he was not expected to know
for sure how long it would take the dismissal plaintiff to do that.  The judge has no clairvoyance and has
to rely on his judicial experience, his knowledge on the general trend on the labor front with special
reference on the availability of jobs or otherwise, as a guide.  After all said and done the award of
damages is a matter entirely within the discretion of the judge and the appellate court is sloth to
interfere with its exercise except as in well laid circumstances.  I proceed at this stage to state only a few
of them as are germane to this appeal.

In Flint v. Lovell [1935] 1 K.B.354, Greer L.J. said at pages 359-360 that

“I should like to add a few words about the jurisdiction of this court in appeals where the only
contention or one of the contentions is that the damages awarded by a judge hearing a case without a
jury are excessive.  It is not possible to say that the tests, which have been laid down in cases, like Philips
v. London & South Western Railway Company (1879) 5 CPD. 280 apply to an appeal from a judge trying a
case without a jury, because an appeal is a rehearing by the court with regard to all the questions
involved in the action including what damages ought to be awarded, but though the established rules
with regard to the decisions of juries do not apply to appeals from the decision of judges trying case
without the assistance of a jury, I do not think it right to say that this court will be disinclined to reverse
the finding of a trial judge as to the amount of  damages merely because they think that if they had tried
the case in the first instance they would have given a lesser sum.  In order to justify reversing the trial
judge on the question on the amount of damages it will generally be necessary that this court should be
convinced either that the judge acted upon some wrong principle of law or that the amount awarded
was so extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous
estimate of the damage to which the plaintiff is entitled”.

Similarly, in Davies v. Powell Dufryn Associated Collieries Ltd. [1942] A.C. 601; [1942] 1 All E.R. 657, HL.
Lord Wright said at pages 616-7 that:

“Where however the award is that of the judge alone, the appeal is by way of rehearing on damages as
on all other issues, but as there is so much room for individual choice so that the assessment of damages
is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly
slow to reverse the trial judge on a question of the amount of damages.  It is difficult to lay down any
precise rule which will over all cases, but a good general guide is given by Greer L.J. in Flint v Lovell
[1935] 1K.B. 354, at 360.  In effect, the court, before it interferes with an award of damages, should be
satisfied that the judge has acted on wrong principle of law, or has misapprehended the facts or has for
these or other reasons made a wholly erroneous estimate of the damage suffered.  It is not enough that
there is a balance of opinion or preference.  The scale must go down heavily against the figure attached
if the appellate court is to interfere whether on the ground of excess or insufficiency”.

Lord Upjohn referred to this dictum with approval in Yorkshire Electricity Board v. Naylor [1968] A.C. 529
at page 539, His Lordship made an observation that was worthy of note.  He said that the award of
damages was a matter that was better and safely left to the experience and common sense of judges
who day by day had to judge of these matters. I think when they had used their experience in these
matters to make an award they had exercised a judicial discretion.  An appellate court would scarcely
interfere with the exercise of this discretion except where they fell foul of the principles stated in the
case cited above.  See also Bressaah v. Asante [1965] GLR 117, S.C.

Bearing the above principles in mind it could safely be said that the trial judge did not make an
erroneous let alone a wholly erroneous estimate of the period within which the cross-appellants could
have secured an alternative job.  All the criticism levelled against his estimate was not well founded.
That was very much so when it was considered that there was evidence that one of the plaintiffs had
obtained an employment within three months after their dismissals.  If one could do it why could the
others not do the same thing within the same period?  In the result this court has no reason to interfere
with the period awarded by the trial judge.

The major question raised by this appeal is whether or not the cross-appellants were paid all their
benefits upon their dismissals?  The law is settled that where a worker was wrongfully dismissed he is
compensated by damages. And here I find the dismissals to be wrongful. The cross-appellants led
evidence that showed conclusively that it was the practice at the company for workers to
take I.O.Us from the cashier and to repay later.  It was when management discovered that the privilege
had been abused that new measures were put in place to check it. The respondents pleaded that:

“12. Defendants further say that the unauthorized I.O.Us were taken by the plaintiffs between June
1989 and January 1990 when a new  Management with sole authority to approve all disbursement of
funds  was running the affairs of the Factory”.

This averment was denied in paragraph 2 of the plaintiff’s reply. With that the burden fell on the
defendants to prove that the cross-appellants took the I.O.Us after the date pleaded by them i.e. June
1989 and January 1990. This in my view, based on the perusal of the evidence as a whole, the
defendants failed to do. Certainly, the fact that the taking of I.O.Us was very rampant among the
workers did not justify that conduct. On the other hand, the fact that management frowned upon that
conduct after a certain point in time did not mean whoever took it at any time committed an act of
dishonesty for which he could be dismissed summarily. What was rather important was that the
defendants proved that the cross-appellants by passed the procedure laid down after June 1989 and
January 1990, in taking those loans.  That kind of evidence was not forthcoming from the defendants
and that made their dismissals of  the cross-appellants wrongful. The remedy available to a worker who
was wrongfully dismissed lay in damages. How much that should be was stated in Ghana Cocoa
Marketing Board v. Agbettoh (supra) at page 129 to be pecuniary damages. A reading of Nartey-Tokoli v.
Volta Aluminium Company Limited (No2) [1989-90] GLR 341, would show that these would include
salaries and entitlements lost over the period.  The trial judge, in all fairness to him awarded the cross-
appellants five months salary for each affected worker plus a housing allowance within the same period.
If anything at all it was against the computation that a complaint was made to the effect that it was
wrongly made. Counsel for the respondent company has conceded that point. We ourselves have also
found the criticism to be well founded. We agree that the first plaintiff earned ¢25,488 but not ¢25,000,
the 2nd earned ¢15,820 but not ¢15,000 as stated by the judge.  Multiplying this figure by the five
months period we get  ¢329,440.00 and ¢79,100.00 for the 1st and 2nd plaintiffs respectively.  We set
aside the sums awarded for these plaintiffs as salaries lost and substitute them with these.  With regard
to the figures for the third plaintiff, we find that he earned ¢20,779.00 a month and for the five-month
period he was entitled to the  ¢103,895.00 awarded by the trial judge as lost salaries.  We find no fault
with the calculation and we do affirm it.  Each plaintiff was also entitled to 25% of his monthly salary
housing allowance.  For the five months the first plaintiff would be entitled to  ¢31,860.00, the second
plaintiff, ¢19,770.00.  We make those awards for the 2 plaintiffs.  The third was earning  ¢20,799.00 a
month so that his lost salary for the three month period was ¢103,995.  It is in evidence that it took
three months for the third plaintiff to secure another job, so the judge should computed his lost salary
by using that period of time.  That would amount to ¢65,397.00. His lost housing allowance over the
period would be ¢16,449.25. This we award in favour of the third plaintiff.  It could be seen that in some
respects there were some arithmetical errors in the computations by the trial judge and this was a
ground upon which the cross-appeal would be and has been allowed.
There was this appeal to this court to order interest to run on these sums for the period running from
1990 to an unspecified time. The reply was that the plaintiffs did not put in any claim for interest and
none could be awarded in their favour.  The issue is should interest be awarded only when it has been
claimed specifically on the writ? I reckon that under the English rules interest must be endorsed on the
writ before it can be awarded, see Order 18r8 of the English Rules of the Supreme Court, 1965 and the
notes thereon in the Supreme Court Practice, 1993, paragraph 6/2/10 at page 36. Under this rule, all
claims for interest must be pleaded.  In Ghana, the practice seems to be as was stated in “Practice and
Procedure in the Trial Court & Tribunals of Ghana”, by S.A.Brobbey. The subject of ‘Interest in claims for
money’ was treated at Chapter 13 at page 355 to 370. It was stated at page 355 that interest is founded
either on an agreement between the contracting parties or on statutory provisions. In this case the claim
for interest has not been made because of any agreement by the parties.   In that situation the rule is
certain that interest must be claimed and proved before it can be awarded.  The basis of the award of
interest in the present case was that the plaintiffs have had some sums of money awarded in their
favour.  These were monies found by the court to belong to the plaintiffs. The defendants deprived the
plaintiffs of the use and enjoyment of those monies for the period stated by the trial judge, i.e. five
months.  The law on this point is as was stated by Lord Herschell L.C. in London, Chatham & Dover
Railway Co. v. South Eastern Railway Co [1893] A.C. 429 at 437, H.L.  It is that interest is a sort of
compensation or damages for the wrongful withholding of another person’s money; see also Ghana
Commercial Bank v. Binoo-Okai [1982-83] GLR 74; Royal Dutch Airlines (K.L.M) v. Farmex Ltd. [1989-90]
2 GLR 623 S.C. If interest is awarded for wrongful retention of another person’s money then it stood to
reason that the duration of the award should be the same as the wrongful retention.  In this case the
period has been put at five months. The rate of interest is statutorily put at the prevailing commercial
lending rate.

The plaintiffs claimed, as per their amended statement of claim and writ of summons “Payment of all
entitlements due the plaintiffs since February 1990”. What these were are to be gleaned from the
collective agreement.  That was exhibit D at the trial.  Article 52 was on ‘End of Service Benefits”.  They
were gratuities paid to an employee on leaving the service of the employer.  The calculation of such
entitlements were as follows:

a.  “Employees with less than 5 years’ service --- 2 months pay for each year of service.

b.  Employees with more than 5 years but less than 10 years service ---3 months pay for each year of
service.

c.  Employees with 10 years and above ---4 months pay for each year of service.”

I take judicial notice of the fact that in December 1990 the Government of Ghana froze all End of Service
Benefits by a circular.  Managements of affected organizations were made to enter into arrangements
with workers on how to compute and effect payment of these benefits.  The payment of end of service
benefits were not cancelled by the Government altogether.  But before the freeze in  December 1990,
the plaintiffs had been wrongfully dismissed in  February of the same year.  The end of service benefit
had rather been earned but not paid.  They remained unpaid even when the plaintiffs were dismissed. I
am of the view that when they were dismissed and they were leaving the service of the defendants,
they should have computed and paid the end of service benefits to them in accordance with the agreed
terms of service.  In fairness to the trial judge he made orders for the payment of end of service benefits
for the plaintiffs but then using the wrong figures.  I disturb his awards in the following manner:
‘For the end of service benefits for the 1st plaintiff, he would have been paid under Article 52, four
months pay for each service.’

The 1st plaintiff worked for 14½ years.  If for each year he took 4, months’ pay, that would be 14½ x 4 x
25,488.00 that is  ¢1,478,304.

I award that sum of money for the 1st plaintiff by way of E.S.B i.e. ¢1,478,304.00.

For 2nd plaintiff, he was found to have worked for 5 years. He is entitled for 3 months pay for each year
for service.  His entitlement by way of E.S.B is 5 x 3 x 20,779.00 and that would be ¢311,685.00.

For the 3rd plaintiff, he was found to have worked for 10 years.

He is also entitled for 4 months per for year of service.  His pay was ¢15,820.00.

I allow the cross-appeal and substitute the following awards for the plaintiffs

                1ST PLAINTIFF    2ND PLAINTIFF 3RD PLAINTIFF 

ESB                                                        

Lost bal                 ¢1,478,304.00    ¢311,985.00        ¢632,800.00      

Lost salary               329,440.00           79,100.00         ¢103,895.00      

25% Housing Allowance:

                31,860.00                 19,770.00             16,449.25        

TOTAL:  ¢1,839,604.00   ¢410,855.00        ¢753,144.25       

As is already stated interest is to run on these sums of money at the prevailing bank rate from the dates
of dismissals to the date of judgment.

To this extent I allow the cross-appeal.

J. ANSAH

JUSTICE OF APPEAL

P. K. TWUMASI,  JA