AKWASI OSEI & ANOR VRS AKROMA MINING CO. LTD (C2/23/23) [2024] GHACC 321 (11 October 2024)

IN THE CIRCUIT COURT MPRAESO, EASTERN REGION, BEFORE HER HONOUR MRS ADWOA AKYAAMAA OFOSU, CIRCUIT COURT JUDGE ON FRIDAY 11TH OCTOBER, 2024 __________________________________________________________________ C2/23/23 1. AKWASI OSEI - PLAINTIFF 2. CHARLES OBENG VRS AKROMA MINING CO LTD - DEFENDANT ……………………………………………………………………………………………………… ………………………. TIME: 8:55 PARTIES: PLAINTIFFS PRESENT DEFENDANT REPRESENTED BY GODFRED PAPA ARTHUR PRESENT COUNSEL: J. K. BOAKYE MENSAH ESQ FOR THE PLAINTIFFS PRESENT SHEIDATU HAILEY H/B USTARZ JIBREEL SA-AD ESQ FOR THE DEFENDANT PRESENT JUDGMENT In the year 2016, specifically in July, the defendant company herein engaged the plaintiffs in its company and confirmed their appointments in September and October of the same year. In June, 2020, a stealing incident occurred at the defendant company’s premises in P a g e 1 | 12 which the plaintiffs were implicated. Subsequently, the defendant caused the arrest of the plaintiffs and others and a criminal action was initiated against them for stealing. The plaintiffs have brought the instant action on grounds that the prosecution was not able to prove the charge of stealing against them and the court acquitted and discharged them but the defendant has failed to call them back to work and also failed to pay their salaries. The plaintiffs thus seek the following reliefs: 1. Declaration that the plaintiffs are entitled to be paid their salaries for 35 months totaling GH₵42,000.00 2. Payment of all allowances due to the plaintiff 3. Damages 4. Costs The case of the plaintiffs is that they are employees of Akromah Company Limited, the defendant company which is a mining company at Esaase. That the defendant gave them appointment letters and confirmed them after they had finished their probation. Plaintiffs aver that in June, 2020, the defendant company arraigned them before the circuit court on a charge of stealing however at end of the trial, the prosecution could not prove the charge and therefore the plaintiffs were set free and the entry of judgment has been served on the defendant. According to the plaintiffs, their counsel has written to the management of the defendant company to allow them to report for work since the company has not terminated, sacked or dismissed the plaintiffs from the company and that all efforts to report to work have yielded no results. The plaintiffs say that the company has refused to pay their salaries to them from June 2020 to April 2023 even though they are still employees of the company hence their claim for the reliefs endorsed on their writ of summons. P a g e 2 | 12 On the defendant’s part, apart from paragraph two of the statement of claim which is to the effect that the defendant is a mining company at Esaase, it denies all the averments contained in the plaintiffs statement of claim. The defendant avers that the plaintiffs were previously in their employment until they were caught on camera stealing gold belonging to the company. That the plaintiffs were interrogated in accordance with the standard of industry practice and labour laws of the country after which they were summarily dismissed In further averment, the defendant says that the plaintiffs’ conduct amounted to both an offence to the company as well as the offence of stealing under the laws of the Republic of Ghana and so pursuant to that, the defendant handed over the plaintiffs to the police for criminal prosecution. The defendant says that the criminal prosecution is distinct from the procedure of the defendant’s company and the outcome of the said criminal prosecution is immaterial and inconsequential to the decision adopted by the company. By an order of the court, the parties filed their pleadings. The plaintiffs testified by themselves and did not call any witnesses. The defendant testified through Godfred Papa Arthur, an Administrative and Human Resource Assistant of the company. The plaintiffs set out the following issues in their application for directions 1. Whether or not the plaintiffs are still employees of the defendant company 2. Whether or not the plaintiffs have received any dismissal letter from the defendant 3. Whether or not the plaintiffs stole anything at all from the defendant company 4. Whether or not the suspicions attributed to the plaintiffs were proved to be true or false by the police P a g e 3 | 12 5. Whether or not the plaintiffs have been paid their salaries and allowances by the defendant 6. Whether or not the defendant has refused to allow them to report to work even when defendant could not prove its case at the court 7. Whether or not the plaintiffs were proved innocent in the court case 8. Whether or not an employee called George Antwi sought the assistance of plaintiffs with official vehicle to the department of plaintiffs to collect sample stones to the laboratory where George Antwi works to steal any property of the defendant 9. Whether or not there was a previous agreement with George Antwi and the plaintiffs to steal any property of the defendant 10. Any other issues that may arise out of the pleadings The defendant did not file any additional issues. I must remark that most of the issues that were set out in the application for directions are non- issues having regard to the reliefs being sought by the plaintiffs and the pleadings of the parties. The settled law is that what issues are germane and central to the determination of controversy or dispute between parties lies with the trial judge. In this light the Supreme Court in the case of Fatal v. Wolley [2013-2014] 2 SCGLR 1070 speaking through wood JSC held that: “...indeed it is sound basic learning that courts are not tied down to only the issues agreed upon by the parties at pre-trial. Thus, if in the course of the hearing an issue is found to be irrelevant, moot or even not germane to the action under trial, there is no duty on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on the grounds that it is not included in the agreed issue” P a g e 4 | 12 See: • Kariyavouolas v. Osei [1982-83] GLR 658 • Fidelity & Investment Advisors v. Aboagye Atta [2003-2005] 2 GLR 118 • Lumor Bortey Borquaye v. Alhadji Abdul Aziz & Anor suit number H1/31/2020 Court of Appeal (unreported) dated 5th April, 2023. This court is mindful of the Circuit Court’s lack of jurisdiction in labour issues properly so called. Since the plaintiffs’ claim is not about wrongful dismissal or wrongful termination but are only seeking a declaration that they are entitled to their salaries and being guided by the above authorities, it is my view that the relevant issues to be determined in this case are: 1. Whether or not the plaintiffs are still employees of the defendant 2. Whether or not the plaintiffs are entitled to be paid their salaries and allowances for 35 months 3. Whether or not the plaintiffs are entitled to damages It is trite learning that in civil cases, he who asserts must prove and the standard of proof is on a balance of probabilities only. In the case of Okudzeto Ablakwa (No.2) v. Attorney- General & Obetsebi Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in pronouncing on the burden of proof held at page 867 that: “…the established rule, which is that he who asserts, assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act 1975(NRCD 323), s 17(a) … What this rule literally means is that if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, P a g e 5 | 12 a party cannot win a case in court if the case is based on an allegation, which he fails to prove or establish.” Issue 1 Whether or not the plaintiffs are still employees of the defendant The plaintiffs assert that they were employed by the defendant and their appointments were subsequently confirmed by the defendant company. In support of this assertion the plaintiffs tendered in evidence Exhibits A, B D and E. Exhibit A and B respectively are the appointment and confirmation letters of the 1st plaintiff indicating that he was appointed by the defendant company on the 27th of July, 2016 and his appointment was confirmed after serving his probation on the 19th of September, 2016. Exhibit D and E respectively are also the appointment and confirmation letters of the 2nd plaintiff indicating that he was appointed on the 27th of July, 2016 but his appointment was confirmed on the 17th of October, 2016. These assertions by the plaintiffs were not denied by the defendant. It is therefore not in doubt that the plaintiffs were appointed by the defendant and their appointments were confirmed by the defendants subsequently. It is the case of the plaintiffs that an employee of the company at the laboratory section requested for assistance from them to convey some stones in the company vehicle to the laboratory. That the assistance they gave to the said employee was sacrificial but they were accused of stealing and the defendant did not investigate the matter but rather handed them over to the police of having stolen the company’s stones worth over GH₵90,000.00. According to the plaintiffs, they were arraigned before this court but they were set free at the end of the trial. That their lawyer has written to the management of P a g e 6 | 12 the company to allow the two of them to come and work and for the defendant to pay their salaries but the company has failed to reply the letter or pay their salaries to them. The position of the law is that a litigant who is a defendant has no burden to prove anything however if the defendant wishes a determination to be made in his favour then on an issue then he has to help his cause by leading evidence. Thus in In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors [2003-2004] SCGLR 420 at 465, it was held that “ A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant . At the same time, if the court has to make a determination of a fact or an issue, and that determination depends on evaluation of facts and evidence, the defendant must realise that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour.” The defendant through its witness Godfred Papa Arthur testified that the plaintiffs were employed by the defendant in 2016 and throughout their period of employment, the defendant company reposed its trust in the plaintiffs as employees of the company until somewhere in June, 2020 when the plaintiffs breached that trust and together with three other company employees stole the defendant company’s gold which theft was captured on camera. To buttress this, the defendant tendered in evidence a footage of the said incident as Exhibit 1. According to the defendant’s witness, the plaintiffs were interrogated by the company and when they could not provide any satisfactory explanation to the footage, the company summarily dismissed them to their knowledge. The defendant’s witness tendered in evidence Exhibits 2 and 3 dated 7th July, 2020 and P a g e 7 | 12 captioned “Summary Dismissal”. The defendant therefore insists that since July 2020, the plaintiffs have ceased to be its employees. From the evidence, the plaintiffs’ were summarily dismissed as per Exhibits 2 and 3 and they were handed over to the police. The plaintiffs contend that nobody informed them about any dismissal. The following ensued during cross examination of the 1st plaintiff: Q: You have rightly admitted of your involvement in the incident at paragraph 4 of your witness statement A: Yes, that is so Q: I put it to you that the company itself conducted an investigation into the matter A: I can’t tell Q: And I put it to you again that you were duly informed of the evidence of your involvement in the incident A: No body informed me of anything. Had it not been a letter that my lawyer asked me to send to them, I had never stepped there and nobody told me anything Q: I put it to you that having been notified of your involvement you failed to explain to the company who sanctioned the said conduct A: When they arrested us, I never went there and the company never invited me From the 1st plaintiff’s showing, after they were arrested, he never stepped the defendant’s premises until their lawyer gave him a letter to be sent to the defendant’s company. The question then is, if there was no communication to the plaintiffs that they had been interdicted or dismissed, why did the plaintiffs stop going to work and why did they cause their lawyer to write to the defendant to recall them to work because there P a g e 8 | 12 is no evidence that the plaintiffs went to work and they were sacked or prevented from working. The settled rule of law of evidence is that where oral evidence conflicts with and is inconsistent with documentary evidence that has not been impeached on legal grounds or through cross examination, then a court must prefer the documentary evidence to oral testimony. See: • Nana Asiamah Aboagye v. Abusuapanyin Kwaku Apau Asiam [2019] 128 GMJ 254 SC • Duah v. Yorkwa [1993-94] 1GLR 217 In the instant case, the plaintiffs’ conduct of not going back to the defendant’s premises after their arrest clearly show that their dismissal had been communicated to them as per Exhibits 2 and 3 and so when the criminal prosecution allegedly went into their favour, they felt it was a good ground for them to be recalled by the defendant hence causing their lawyer to write to the defendant for them to be recalled. Short of this, I cannot think of any other reason and indeed the plaintiffs have not given any reason why they never went back to work after the defendant caused their arrest. On the totality of the evidence and being fortified by the authorities cited above, I find that the plaintiffs were summarily dismissed by the defendant as per Exhibits 2 and 3 after the said stealing incident and the plaintiffs have therefore since 7th July, 2020 ceased to be employees of the defendant company. I hold so. Issue 2 Whether or not the plaintiffs are entitled to their salaries for 35 months P a g e 9 | 12 The plaintiffs’ claim that in June, 2020 the defendant arraigned them before court on a charge of stealing but the prosecution could not prove its case and so they were set free and since then, all efforts to report to work have proved futile. That from June 2020 to April, 2023, no salary has been paid to them hence their claim for thirty five (35) months’ salary. First of all, this suit was filed on the 27th of March, 2023 and therefore there is no basis for claiming salary for April, 2023 assuming the plaintiffs are entitled to be paid any salaries. The evidence shows that the incident which culminated in the criminal prosecution occurred in June, 2020. The specific date in June, 2020 was not stated and therefore it is unclear whether the plaintiff had worked the full month in June, 2020 and were entitled to their June, 2020 salaries before the incident occurred. Assuming the incident occurred after their salary had accrued to be paid, the plaintiff had the burden to prove that they did not receive their salary for June by providing their statements of account from their respective banks since per Exhibits A and C the presumption is that the plaintiffs were to be paid through their banks. In Klah v Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139 the court held that: “Where a party makes an averment capable of proof in some positive way example by producing documents, description of things, reference to other facts instances and his averment is denied he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true” The plaintiffs in the instant case did not provide any proof that they were not paid in June, 2020. P a g e 10 | 12 As has been established, the plaintiffs were summarily dismissed on the 7th of July, 2020 after the alleged stealing incident and there is no evidence that the plaintiffs were reinstated by the defendant after the said criminal prosecution which allegedly went in favour of the plaintiffs. The plaintiffs have since 7th July, 2020 therefore ceased to be employees of the defendant company and there is therefore absolutely no basis for the claim of salaries for thirty five (35) months or any other period following the plaintiffs’ summary dismissal from the defendant company since they have not earned any such salary. I therefore hold that the plaintiffs are not entitled to salaries for 35 months as claimed. Issue 3 Whether or not the plaintiffs are entitled to damages The plaintiffs claim as one of their reliefs, damages but have not led any evidence to establish any breach of employment contract or any tortious act against them by the defendant to entitle them to damages. I therefore do not find any basis for the plaintiffs’ claim for damages. CONCLUSION On the whole of the evidence, it is my view that the plaintiffs are not entitled to any of the reliefs indorsed on their writ of summons. The plaintiffs’ claim is dismissed in its entirety. Parties to bear their costs. H/H ADWOA AKYAAMAA OFOSU (MRS) P a g e 11 | 12 CIRCUIT COURT JUDGE P a g e 12 | 12