Nyarko and Others Vrs Electricity Company Of Ghana Limited [2023] GHAHC 129 (24 May 2023)

IN THE HIGH COURT HELD IN CAPE COAST ON WEDNESDAY, THE 24TH DAY OF MAY, 2023, BEFORE HER LADYSHIP MALIKE AWO WOANYAH DEY (HIGH COURT JUDGE) SUIT NO: E12/71/2020 1. FRANCIS KOBINA NYARKO ----------------- PLAINTIFFS 2. VICTOR AMNATEY KORLE 3. PATRICK JEFFERY SUING FOR AND ON BEHALF OF THE ADMINISTRATORS OF THE ESTATE OF GEORGE AMISSAH JEFFEREY 4. SAMUEL AYENSU 5. SAMUEL BENSON VS. ELECTRICITY COMPANY OF GHANA LIMITED -------------------- DEFENDANT POWER DISTRIBUTION SERVICE PLAINTIFFS PRESENT DEFENDANT PRESENT DANIEL AMOSAH HOLDING THE BREIF OF ROLAND A. K. HAMILTON FOR THE PLAINTIFFS SEYRAM DARBI HOLDING THE BRIEF OF JEMIMA IRRE ARYERE FOR DEFENDANT JUDGMENT The plaintiffs herein issued a writ on 7th May 2020 claiming the following reliefs against the defendant; 1. An order directed against the defendant to pay plaintiffs cash in lieu of all their outstanding leave entitlements which defendants denied them for lack of skilled personnel prior to their retirements. 2. Interest on the said amount from 2008 till date of final payment. 3. Damages for breach of contract. 4. Costs including solicitor’s fees. Per the accompanying statement of claim, the plaintiffs were employees of the defendant's company and are all currently on retirement, with the exception of the 3rd defendant, whose interest is being claimed by the administrators of his estate as he is now deceased. On the other hand, the defendant is a company in charge of producing electricity for Ghanaians for various purposes. According to the plaintiffs, prior to their retirement, they had annual leave days to their credit which the defendant company could not grant them due to the shortage of skilled men at the time. They claim that the defendant deferred their accumulated leave days, which they pleaded with the defendant to convert into cash. The defendant has, however, told them that since they did not take their leave as required, they were not entitled to the cash in lieu thereof. They believe that the position taken by the defendant is wholly unjust and inequitable. It is their further case that the leave administration of the defendant's employees was entirely the preserve of the defendant who controlled and took decisions affecting the leave of its workers. They claim that they have pursued the defendant since 2008 for their cash in lieu of their outstanding leave days and have even reported the matter to the Human Rights Office in Cape Coast but to no avail. They further state that after several discussions at the Commission on Human Rights and Administrative Justice, they only paid the entitlement of one Mr Acquah, leaving the others with the excuse that the floodgates would be opened. It is also their case that since their rights to cash in lieu of their outstanding leave days have materialised and that the defendant deferred and denied them their leave entitlements for lack of skilled staff at the time, then the defendant ought to pay them. They also stated that it would be unjust to allow the defendant to approbate and reprobate when the same defendant denied and deferred their leave so they could work for the defendant to provide essential services to their customers to make profit. Significantly, they claimed that their leave applications and correspondence documents are all on their various files in the defendant's custody. They claimed that they had leave days of 254, 325, 174, 210 and 310 days, respectively, which were deferred upon the defendant's request, and unless compelled by the court, they would not pay. THE CASE OF THE DEFENDANTS In its statement of defence, the defendant denied all the allegations of the plaintiffs and stated that it is rather into the distribution of electricity after the appropriate body has produced it. It put the plaintiffs to strict proof on all their allegations. It, however, admitted that the 1st, 2nd, 4th, and 5th plaintiffs are former employees of the defendant. It stated that sometime before 2009, its Collective Bargaining Agreement (CBA) with its staff permitted it to pay cash to its staff in exchange for their leave days. It stated that due to the substantial economic benefit that its staff stood to gain from the arrangement, several of its staff refused to take their annual leave resulting in several years of accumulated leave days. According to the defendant, it did not direct the plaintiffs not to take their leave, but rather, they refused to take their leave days with the hope and expectation that their leave would be commuted to cash. It found the practice injurious and unhealthy for its employees, and it also infringed Section 31 of the Labour Act, 2003 (Act 651) which forbade any agreement to relinquish one's entitlement to annual leave or to forgo the leave altogether. Therefore, it instructed all its staff through memos and circulars to take their accumulated leave, if any. Nevertheless, the plaintiffs blatantly refused to take their accumulated leave and still hoped that it would be commuted to cash; thus, the defendant refused to accede to their demands for same to be commuted to cash. The defendant also stated that at the beginning of every calendar year, each staff fills out a leave roster indicating the preferable time the said staff wishes to take his annual leave, and same is granted when it becomes due at the prompting of the Human resource office or the instance of the staff. Therefore, it allows its staff to take the leave in whole or in part; however, the same must be exhausted within one calendar year. The deferment could only be in a calendar year if a staff's leave is deferred at the defendant's instance. It stated that it is not true that it controlled the leave administration of its staff and unilaterally took decisions with regard to that. The defendant also averred that it paid Mr Acquah his accumulated leave in 2014 because, as a Senior Accounting Officer, he had applied several times to take his leave before his retirement, but it did not approve it because the Cape Coast Region at the time did not have any replacement for him and there were records to that effect. Thus his complaint was utterly different from that of the plaintiffs herein. Besides, he brought his complaint to CHRAJ in 2012, three years after retirement in 2009, whilst the plaintiffs lodged their complaints six years after retirement. One Mr Andrew Yarquah, who lodged the complaint with Mr Acquah, whose next of kin represented him at the time because he was deceased, was also not paid because, like the plaintiffs, he failed to take his leave as directed. The defendant further averred that when the plaintiffs heard of the payment to Mr Acquah, they also rushed to CHRAJ with their complaint without understanding the circumstances under which Mr Acquah was paid. It was explained to them that many of the defendant's staff had also failed to take their leave as directed and had been refused payment; thus, the defendant could not make any exception for the plaintiffs whilst others were in the same situation. The defendant insisted that the plaintiffs did not work in any position that could halt the company's activities if they proceeded on leave. It stated that it maintained the personal files of the plaintiffs, which have long been archived but denied that they had their leave documents deferring their leave on those files. The defendant further averred that the plaintiffs could not call upon the court to compel it because its jurisdiction is ousted by section 4(1) (b) of the Limitation Act 1972 NRCD 54 since it has taken the plaintiffs herein ten (10) years to commence this instant action. It stated that the plaintiffs are not entitled to the reliefs they have prayed the court to grant them. The plaintiffs filed a reply in which they averred that paying Mr Acquah and refusing to pay them amounts to discrimination from the defendant because the Labour Act referred to was in existence at the time he was paid. Thus the defendant cannot hide behind the Labour Act and use it to discriminate against them. They also insisted that the defendant deferred their leave as a result of a shortage of staff. They further replied that the period of deferred leave accrued to them prior to 2009, and hence they stood to benefit from the Collective Bargaining Agreement. They further stated that even in situations where they had indicated their preferred period to take their leave, the defendant always requested and prevailed on them to defer such leave periods, which has led to the accumulation of their leave in the years that followed as a result of the shortage of personnel. They further claim that Mr Yarquah’s leave was not commuted to cash and paid because his next of kin decided not to pursue the matter again. All the plaintiffs testified in person and did not call witnesses. The defendant testified by its representative in the person of Vivian Carrey. At the close of pleadings, the following issues were adopted for trial 1. Whether or not defendant deferred the leave of the plaintiffs 2. Whether or not plaintiffs' rights accrued to them under the collective bargaining agreement with the defendant prior to the year 2009 3. Whether or not defendant converted the leave of other employees to cash. And one additional issue Whether or not the plaintiffs action is statute-barred. Summary of Evidence The 1st plaintiff testified in person and told the court that he was employed as a labourer on 1st July 1969, rose through the ranks, and became a Principal Meter Inspector. He retired on 24th February 2009. He was first stationed at Saltpond as a labourer and transferred to Cape Coast in 1975 as a meter reader. He was transferred to Assin Fosu in 1999 as a senior Meter Inspector and then to a Principal Meter Inspector before retiring in 2009. According to him, he had since 1999 not enjoyed his annual leave despite filling the leave roaster and indicating the preferred time of the year that he wanted to take his annual leave. He testified that his inability to take his annual leave has always been at the defendant's behest, who always requested that he defers his leave due to a shortage of skilled personnel. He testified further that the defendant introduced a system of validation in the 1990s whereby the senior Meter Inspectors had to go to Takoradi every month to rectify faults detected by meter readers before bills could be printed out. Thus it became difficult to go on leave because only a few were trained to validate. He also testified that he knew the defendant had the policy of converting the leave days of its staff who could not go on leave to cash and paid to same to them, and many of its staff had benefited from it for several years. He further testified that the policy covered the defendant's retired staff. According to him, when he left the defendant's employ, he had a total of 254 working days leave after he had been granted 166 working days out of an initial 420 days. He, therefore, applied to the defendant to convert his leave days to cash, but it refused to honour same. When they went to CHRAJ, they paid only one Mr Acquah with the excuse that the floodgates would be opened, which is discriminatory. He also testified that the defendant controlled and took decisions affecting the leave of its employees, as no employee could refuse to take his leave after filing a leave roaster. He tendered Exhibit A, which is dated 30th June 2009, which is an application for his leave to be converted to cash. Under cross-examination, he told the court that he did not see any circular from the Human resource Director warning staff who had accumulated their leave days to proceed on leave. He also told the court that even when he was to retire in July because there was nobody to take over from him, he helped the company till October. He denied that he refused to heed the directives to go on leave because he wanted his leave to be commuted to cash. However, he admitted that he had no document before the court to support his assertion, but he was granted permission to proceed on 166 days' leave. 2nd plaintiff also testified in person. Victor Amanatey Korle testified that he joined the defendant as a labourer in 1970 and rose to the position of Principal meter Inspector before he retired in 2010 at Ajumako. He testified further that at the date of his retirement, he had 325 working days of leave, which he could not take due to a shortage of staff, and he complied with the defendant's policy by filling out a leave roster indicating the preferred time to proceed on leave. He attached Exhibit B series termed as a copy of Annual leave advice. He said he was also not able to go on leave because he did auxiliary assignments such as serving on committees of enquiries such as the Akomea Mensah's Committee Enquiry, C-Danso Tanadol's Committee, Pauline L Glawu's Committee of Enquiry amongst others. He further testified that he was also aware of the defendant's policy of converting leave days into cash, and both those in active service and on retirement have benefitted from same. He also tendered Exhibit C to show that after his retirement, he wrote to the defendant for his outstanding leave days to be converted into cash. The defendant replied and stated that it could not do so due to constraints imposed by law. He tendered Exhibit D, which is the defendant's response to him. He also testified that the defendant's conduct was discriminatory because one Mr Acquah had been paid under similar circumstances. Under cross-examination, he informed the court that the executive Director and Executive Director of Legal Services did not deny their liability, but all they did was quote a law the reason for which they could not pay. When asked where the application letter was, he said it was on his closed personal file with the defendant, and he also had it at home, which he could produce in court. He produced a messenger receipt book tendered as Exhibit 2, which, according to him, shows that the defendant received Exhibit C. The 3rd plaintiff testified that he is one of the administrators of the estate of his father, Mr George Amissah, and had been given a power of attorney to maintain the suit by the other administrators. He testified that his father was employed by the defendant in 1973, and he retired on 21st December 2009, stationed at Cape Coast as a foreman/motor mechanic. He further testified that per the company's policy, employees filled out a leave roster to indicate their preferred date for leave. He testified further that despite filling the leave roster, the decision and control of the leave of its employees still resided in the management of the defendant company, and it determined the appropriate time to permit an employee to go on leave or to defer same. According to him, at the time his father went on retirement, he had 316 working days of deferred leave, out of which he was granted 142 days leaving 174 days to his credit and per a memo dated 19th June 2008 attached as Exhibit G. Just like the other plaintiffs he told the court that his father could not take his leave because of shortage of skilled personnel. He testified further that with full knowledge that his father had leave days, he surreptitiously decided to write to him to take his annual leave with full knowledge that he had more days which stood to his credit. He stated that his father's rights to his leave had accrued at the time of the company's policy to commute the leave into cash, and therefore, he is entitled to the cash. Under cross-examination, he told the court that his father started the process with the other plaintiffs, and his father's files, on which he has all the approvals were with the defendant company. When asked whether he had any document to prove that the defendant asked him not to proceed on leave, he said he had it, but it was at home. The 4th plaintiff Samuel Ayensu also testified that he joined the defendant company on 1st April 1966 and retired in 2008. He also said he joined the company as a labourer in Accra and retired as a fault maintenance gang leader at Assin Fosu. He testified that he had 210 days to his credit when he retired. He also said he complied with the policy of filling the leave roster. However, he could not take his leave from 2000 to 2007 due to the exigencies of the job. He said he was also privy to the company policy of commuting their leave days into cash in return for the benefit the company derived in return for the employee not taking his leave. After retirement, he also wrote to the company to convert his leave days into cash. He testified further that he did not receive any response from the defendant. He also stated that his accumulated leave accrued to him before 2009, when the company abolished the policy of converting leave days into cash. He tendered Exhibit H to show when he joined the company and Exhibit J to support the assertion that upon his retirement, he wrote to the company for his outstanding leave days to be converted into cash. Under cross-examination, when asked whether he had any document to substantiate his averment that his leave was deferred, he answered that he had been looking for the document but could not find it. The 5th plaintiff Samuel Benson testified that he joined the company in 1970 and retired on 1st July 2009. He testified further that he started as a labourer in Cape Coast, rose through the ranks, became a foreman fault/maintenance gang leader, and retired at Ajumako. He said that he had nine years of accumulated leave of 310 days at his retirement. He stated that though he filled out the roster for leave, it was deferred at the defendant's behest because he had to be on patrol to trim bamboo and trees and mend and clear faults. The defendant also testified through its employee relations manager Vivian Carrey. She testified that the plaintiffs were all the defendant's employees and went on retirement between 200 2009 and 2010. She testified that the 1st plaintiff was employed in the company in 1969 and retired in February 2009, whilst the 2nd plaintiff was also engaged in the defendant's services in 1979 and retired in August 2010. The 3rd plaintiff was also engaged in the defendant's services in 1973 and retired in December 2009. The 4th and 5th plaintiffs were employed in 1966 and 1970, respectively, and they retired in December and June 2009, respectively. She testified that at the beginning of every year, the defendant's staff fill out leave rosters indicating their preferred dates or days they wish to enjoy his annual leave, and the Human Resources Directorate grants the same. She further testified that, indeed, staff are allowed to enjoy part or all their leave days at any time other than the chosen or preferred dates in exceptional circumstances and or at the request of the staff subject to a discussion of same with superiors of the staff to ensure the job schedule is not affected. However, each staff member is expected to enjoy and exhaust the annual leave days in the particular year. She also testified that if, for any particular reason, the staff could not exhaust their leave for a particular year, it is deferred with a justifiable reason. According to her, the leave administration of the defendant is fair and does not seek to deny staff their leave. She admitted that before 2009 their collective bargaining agreement permitted the conversion of accumulated leave days to cash, and most of its staff preferred that due to the substantial economic benefits derived from it, which resulted in several years of accumulation of leave days. The plaintiffs sought to benefit from the said practice and refused to go on leave, hoping to receive cash in lieu of same. She testified that sometime between 2008 and 2009, the defendant's attention was drawn to the practice, which was unhealthy and also breached section 31 of the Labour Act 2003, Act 651. Significantly, she testified that the defendant issued directives and circulars and memos subsequently directing its staff with outstanding accumulated leave days to take the necessary steps to exhaust the leave days with a further directive that no leave days would be commuted to cash once there is a refusal on the part of a member of staff to take his or her leave. In support, she tendered Exhibits 1 and 2. She noted that except for the 4th plaintiff, all the other plaintiffs were still at the post when the directive in the circulars was issued, but they failed to take advantage of expecting their leave days to be converted to cash. She testified that in blatant disrespect for the directives issued, the plaintiffs refused to take their leave and demanded cash in lieu of their outstanding leave days. She further testified that the complaint of Mr Acquah, who was paid, was submitted within three years of his retirement from the defendant company in 2009, unlike the plaintiffs who waited well over six years after retirement before making their initial complaint to CHRAJ. She further told the court that Mr Yarquah’s claims were denied because he could not support same. Thus, the defendant does not pay such entitlements unless there is corroborative evidence for same, and the plaintiffs cannot base their claim on the fact that the staff was successful. She further testified that if the plaintiffs had any claims regarding their leave entitlements, they would have brought the instant action long ago because they claimed they had written to the defendant several times. She finally stated that the Statute of Limitation caught the defendants' action as the action was instituted ten years after the plaintiffs retired from the defendant's employ. Under cross-examination, she admitted that the plaintiffs' rights had accrued under their previous Collective Bargaining Agreement prior to the one issued in 2009. She, however, insisted the plaintiffs had been given directives to take their accumulated leave, but they did not. She also insisted that memos were issued for those who had more than 200 days to proceed on leave within a particular time. She also insisted that the action of the plaintiffs is statute-barred. BURDEN OF PROOF Before proceeding with the evaluation of the evidence in this case vis a vis the issues set down, I wish to make some preliminary remarks about what was required by the law concerning the plaintiff and defendant’s duty. By law, the plaintiff had a burden to prove his case to the standard required in a civil case, that is, on a balance of probabilities. Section 11 of the Evidence Act, 1975(NRCD 323) states that the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. In other words, a party needs to produce sufficient evidence such that once all the evidence is before the court, a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. On page 31 of his book Essentials of the GHANA LAW OF EVIDENCE, the learned author S. A Brobbey explained this duty thus; "This means the proof lies upon him who affirms, not on him who denies since, by the nature of things, he who denies cannot produce proof.' In the case of Faibi v. State Hotels Ltd. [1968] GLR 471, the court held as follows; “Onus lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led.” On the general burden of proof, the Supreme Court held in Bank of West Africa vs Ackun [1963] 1 GLR 176 SC that the onus of proof in civil cases depends upon the pleadings. The party who, in his pleadings, raises an issue essential to the success of his case assumes the burden of proof. The burden would shift to the other party when a prima facie case had been established. The test of which party bore the burden of proof on any allegation is: Which party would fail if the allegations in question were struck out of the pleading? In the case of GIHOC Refrigeration and Household Products Ltd v. Hanna Assi [2005- 2006] 458, it was stated that "since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the Judge of the probable existence of the fact in issue." Again in his book cited supra, the learned author SA Brobbey states; "On the balance, if the existence establishes more than a 50 per cent chance of the existence of the fact, the standard of proof can be said to have been achieved. The Bench Book for U. S. District Court Judges explains the principle as follows; "the plaintiff has the burden of proving his [her] case by what is called the preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what the plaintiff claims are more likely to be true than not. To put it differently, if you were to put the plaintiff's and defendant's evidence on opposite sides of the scales, the plaintiff would have to make the scales tip somewhat on his [her] side. If the plaintiff fails to meet this burden, the verdict must be for the Defendant." Additionally, in the case of Bisi v Tabiri and Another [1987-88] 1GLR 386, it was held that; “the standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical precision as would fit a jigsaw puzzle. Preponderance of evidence became the trier’s belief in the preponderance of probability but probability denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice recognised and selected was more probable than the choice rejected.” Before I proceed I wish to comment on the complaint of the plaintiffs concerning their personal files which they insisted were with the defendant. It is pertinent to note that the complaint by the plaintiffs that their files were with the defendant baffling. If they had used the provisions on discovery under CI 47 and applied to the court for the defendant to produce their files in court I am sure same would have been made available to them. This was a tool available to them to be utilised. Though they used the said tool for the defendant to disclose the CBA, this court is at a loss as to why the same tool was not used for their files to be produced in court. I shall now proceed to discuss the issues together with the evidence and the applicable principles of law. The court shall discuss the additional issue first as that may dispose of the action. WHETHER OR NOT THE PLAINTIFF'S ACTION IS STATUTE BARRED. It must be stated that contrary to the submission of counsel for the plaintiffs, this court did not pronounce or determine this issue of Limitation in its ruling on the application filed by the defendant to dismiss the suit. The court ruled that the limitation issue could not be determined by the determination of a preliminary point but by a trial of the point. To clarify the misconception in the mind of counsel for the plaintiffs, this was what the court said in its ruling; “By the thinking of the defendant applicant the action is statute barred and by the thinking of the plaintiffs respondents it is not, thus this a question that must be tried and not dismissed under Order 11 rule 18 but rather counsel should have applied under Order 33 to have the point tried first in a separate action or as the court may direct when applied for at the application for direction stage, at the trial of the other issues raised by the pleadings. Having failed to do that this court is of the firm belief that the application is incompetent at this stage. This is especially so when directions have been taken and the plaintiffs/respondent have taken a step by filing their witness statements for a full trial. Thus it is obvious that the said issue would be tried together with the other issues raised by the pleadings and determined after taking evidence from the parties. In view of these the application filed by counsel for the defendant applicant must be discountenanced as misconceived and incompetent.” Therefore, the application is dismissed in its entirety. The defendant is hereby given one week within which to file its witness statement. Per its pleadings in paragraph 27, the defendant states as follows; “Defendant says that the plaintiffs at this point cannot call/invite the intervention of the court when the jurisdiction or power of the court to grant any such intervention is ousted by Section 4 (1)(b) of the Limitation Act, 1972 NRCD 54”. In their reply filed on their behalf, the plaintiffs averred in paragraph 11 as follows; "Plaintiffs in specific answer to paragraphs 27 and 28 of the statement of defence asseverate that their action is not an abuse of the court process and that their claim being one for specific performance of a contract is not caught by limitation as evidenced in section 6 of the Limitations Act, 1972 (NRCD 54)." Section 4 (1) (b) of the Limitations Act, 1972 NRCD 54 reads as follows; 4. Actions barred after six years (1) A person shall not bring an action after the expiration of six years from the date on which the cause of action accrued in the case of (b) an action founded on a simple contract; Whilst Section 6 (1) of the same Act being relied on by the plaintiffs reads as follows; 6. Exemption for equitable reliefs (1) Sections 2 to 5 do not apply to a claim for specific performance of a contract or for an injunction or any other equitable relief. Thus, the question that falls for determination in respect of this issue is whether the action is founded on a simple contract or is an action for a specific performance. Where it is an action based on a simple contract, then obviously, per Section 4(1) (b) of the Limitations Act, the action of the plaintiffs would be deemed barred. They filed the action after 2008, when their rights accrued under the Collective bargaining agreement, allowing outstanding leave days to be converted into cash. It is trite that employment relationships are contracts; thus, ordinarily, the relationship between the plaintiffs and the defendant was one of contract. In the case of Kobeah and Others vs Tema Oil Refinery; Boateng and Others vs Tema Oil Refinery Consolidated [2003-2005] 1GLR 485 on whether the law of contract is the foundation of employment relationships, the Supreme Court stated as follows; “Even though the Industrial Relations Act 1958 and the Industrial Relations Act 1965 (Act 299 ) have together radically changed the way collective bargaining is conducted in this country, it does not mean that the law of contract is no longer the foundation of employment relationships. There are still many situations for which the law has not legislated, and then it is up to the law of contract to fill the gaps and answer questions such as whether there is a right to receive wages during a strike action or when absent through sickness. see Mears v Safecar Ltd [I982] 2 ALL ER 865 CA. Therefore as Anderman, SD Labour Law: Management Decisions and Workers Rights 2nd Ed, 1992 page 32 has observed, a thorough understanding of the characteristics of the contract of employment is a virtual precondition to understanding the subject of Labour Law.' Furthermore, on what a Collective bargaining agreement was, the court stated as follows; The term Collective bargaining is applied to those arrangements under which the terms and conditions of employment are settled by a bargain in the form of an agreement between employers or association of employers or association of employers and workers' unions… a collective bargaining agreement by itself is not legally enforceable. At common law, it would not automatically become part of the individual contract of employment made between employers and their employees… So a collective bargaining agreement has only a normative value. In practical terms, it is a record in writing of the changes which the employer and the employees have agreed to make in the contracts of employment of workers. As a further protection of employees, until a new collective agreement is negotiated by the standing negotiating committee, the rights conferred on an employee by a previous collective agreement are rights which cannot be waived by the employee. Further, if there is any conflict between a term of a collective agreement and the terms of any contract not contained in such a collective agreement, then the collective agreement shall prevail, whether or not the contract was concluded before the collective agreement. See section 10(4) of Act 299. Hence, a collective agreement only has an effect if the requisite terms and conditions can be incorporated into an existing employment contract. From this quotation above, since the relationship between the plaintiffs and the defendant was in contract with supplemental terms embedded in the Collective Bargaining Agreement, then this court holds that the relationship between the plaintiffs and the defendants was one of contract. Their rights were, therefore, contractual and not statutory. That said, how does this court handle the averment of the plaintiffs in their reply that their action was not statute-barred because they were seeking specific performance of the contract? It ought to be noted that nowhere in the reliefs being sought by the plaintiffs did they specifically plead specific performance of any contract but for emphasis, this court would repeat the reliefs endorsed on the writ of summons as follows; 1. An order was directed against the defendant to pay the plaintiffs cash in lieu of all their outstanding leave entitlements, which the defendants denied them for lack of skilled personnel prior to their retirements. 2. Interest on the said amount from 2008 till the date of final payment. 3. Damages for breach of contract. 4. Costs, including solicitor's fees. These reliefs endorsed are totally at variance with the plaintiffs' claim that they sought an order of specific performance. This is because specific performance in itself is an equitable remedy and is not granted as of right but only granted at the discretion of the court. In the court's opinion, the first relief being claimed is like a claim for a debt due to the plaintiffs and is, therefore, ascertainable when calculated. Therefore it cannot be inferred that they are seeking specific performance of a particular contract. Besides, in law, there are well-laid principles for granting an order of specific performance. In her book the law of Contract in Ghana, the learned writer Christine Dowuona Hammond states; “An order of specific performance is a decree issued by the court which compels a contracting party to do that which he has undertaken to do under a contract. The remedy of specific performance is purely equitable in origin and it acts in personam. Specific performance is a discretionary remedy. This means that the remedy is not available as of right to the person seeking relief but is subject to the discretion of the court. As a general rule, specific performance will be granted only where damages will not adequately compensate a plaintiff. The normal remedy for breach of contract is damages.” It is obvious that the plaintiffs shot themselves in the foot when they prayed for damages for breach of contract, and at the same time, per their pleadings, they sought to suggest that their action was for specific performance. For the two cannot be granted at the same time. It is, therefore, obvious that the plaintiffs knew that their relationship with the defendant was one of contract, and if there was a breach of same, their remedy was for damages to be awarded. In any case, specific performance is granted where money cannot suffice for the breach, for example, in an action for the specific performance of a contract in relation to land. The specific performance that may be granted would relate to the defendant being ordered to convey the specific land to the plaintiff because damages would not suffice for the breach. Per the evidence on record led by the plaintiffs themselves, their rights accrued under the 2005-2006 CBA, and it is also the finding of the court that by 2009 the policy for which their leave could be converted to cash was non-existent. Thus knowing very well that their rights accrued since 2008, the last year that policy thrived, it behoved them to bring the action within six years of that date. I, therefore, agree with counsel for the defendants that their action almost ten years after they left the defendant's employ has taken each of them out of the lawfully permitted time for which an action could be commenced regarding their accrued rights. Instituting the action long beyond the statutory period lends credence to the averment and testimony of the defendant that it was when they heard that one Mr Acquah had been paid that they all rushed to CHRAJ to lodge a complaint. Equity, they say, does not aid the indolent but the vigilant. I hereby rely on Ghana Commercial Bank vs Commission on Human Rights and Administrative Justice [2003-2004] SCGLR 91 at 107 – 108 cited by counsel for the defendant in her closing remarks to the court, to say that this court being a court of law is prohibited from determining the case outside the framework of the law. In that case, the Supreme Court stated; “… the courts have been established to administer justice according to law. Administering justice according to law means according to the laws of the land, statutory and common law inclusive. No court will consciously order the enforcement of any decision that it knows to have infringed aspects of the laws of the land. That will be absurd and the thought of it would be inconceivable. It would only do so where there are express provisions in the constitution or any other statute permitting the infringement of the Limitations Decree by the Courts.” Furthermore, I also rely on the case of Bonnie vs Ghana Ports and Harbours Authority Civil Appeal No J4/39/12, in which the Supreme Court held that where the plaintiff's action is for breach of contract, it is covered by section 4 of the Limitation Act 1972 NRCD 54. That case also had to do with employer-employee relationships. It is unfortunate and sad that it has to end this way, but the court cannot help the plaintiffs as that would infringe the tenets of the very laws of this land, which this court is a custodian of. The courts are to preserve the sanctity of the laws in the country, and to go beyond this point to discuss the merits of the case would be against statute. Therefore, I hold that the plaintiffs' action against the defendants is statute- barred, and same is hereby dismissed according to law. The other issues cannot be discussed, having dismissed the plaintiffs' action as the issue above has disposed of the entire case. No order as to costs. MALIKE AWO WOANYAH DEY JUSTICE OF THE HIGH COURT CAPE COAST 21