ANANG VRS NORPALM GHANA LIMITED (MISC. 6/2021) [2023] GHAHC 424 (7 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WESTERN REGION (COMMERCIAL DIVISION), HELD IN SEKONDI ON TUESDAY, THE 7TH DAY OF NOVEMBER, 2023 CORAM: G. K. GYAN-KONTOH ‘J’ JUSTICE OF THE HIGH COURT BETWEEN: SUIT NO: MISC. 6/2021 ERIC ADJETEY ANANG SHAMA. ::: PLAINTIFF vs NORPALM GHANA LIMITED TAKORADI. ::: DEFENDANTS ======================================================================= JUDGMENT: On the 10th day of May, 2021, the Plaintiff herein caused to be issued out of the registry of this court the following reliefs against the Defendant: 1. A declaration that the purported termination of the Plaintiff’s employment is for all purposes and in effect a redundancy masked as termination. 2. An order directed at the Defendant to pay to the Plaintiff the sum representing his three (3) months basic salary for each year served as redundancy package which is the same package the Defendant has agreed to pay to its senior staff in the event of redundancy as per the Defendant’s conditions of service for senior staff effective 1st January, 2018. 3. Interest on the said sum in 2 above at the prevailing commercial lending rates from 1st October, 2020 till the date of final payment. 4. An order directed at the Defendant to pay to the Plaintiff a sum equal to 20% of all sums found due him by the Honourable Court being his agreed legal fees on a full indemnity basis. 5. Cost. SUMMARY OF FACTS: In 2001, the Plaintiff was engaged by way of appointment by the Defendant as Finance Manager and rose through the ranks to become the General Manager of the Defendant’s company in 2006. At that time, this position was the highest in the Defendant’s company and thus accountable and answerable only to the Board of Directors. The Plaintiff managed the affairs of the company in this capacity until African Tiger Holding Limited (ATHL) acquired a 31.7 per centum of the Defendant’s shares in 2019. Things then began to change in the Defendant’s company as the Board was reconstituted which affected the operations of the Defendant’s business, the business itself and particularly the organisational structure, wherein positions were changed and the Plaintiff’s role also changed with the creation of the position of Chief Executive Officer (CEO) and others in addition to the Board compelling some staff, including the Plaintiff to reduce their salaries. This was resisted by the Plaintiff, then heading the group of senior officers resisting the change/reduction in salaries and so the Plaintiff had to pay the price and was axed by the company which the Defendant called it “Termination” and the Plaintiff, also called it “a redundancy” in the circumstances. It is against this background that the Plaintiff has instituted this action claiming amongst others redundancy package. The writ of summons was accompanied with a 34 paragraphed statement of claim. The Defendant initially filed a conditional appearance on 18/5/2021 through its Solicitors; and on 1/6/2021 its statement of defence of 42 paragraphs was filed. As the matter was of a commercial nature and thus filed at the Commercial Court Registry, parties were served with Hearing Notice together with their Lawyers to attend a Pre-trial Settlement Conference on 26/7/2021. The initial conference failed. On 5/8/2021, the Plaintiff filed his memorandum of issues thus: 1. Whether or not the Defendant sought to restructure its affairs after the acquisition of some of its shares by African Tiger Holding Limited? 2. Whether or not the Defendant insisted on a reduction or in the conditions of service of its management team, then headed by the Plaintiff, as part of its restructuring exercise? 3. Whether or not the Defendant insisted on the said reduction or diminution in its then management team’s conditions of service because it claimed to be in financial crisis and could not support the existing conditions of service of the management team? 4. Whether or not the Plaintiff’s employment was terminated after he had made it clear to the Defendant that a reduction or diminution in his then conditions of service was not acceptable to him? 5. Whether or not the Plaintiff’s termination constitutes a redundancy? 6. Whether or not the Plaintiff is entitled to his claims? Equally, on 5/08/2021, the Defendant also filed its memorandum of issues thus: 1. Whether or not the Plaintiff as the General Manager of Ghana Limited was a member of the senior staff or senior management? 2. Whether or not the conditions of service for senior staff of Norpalm Ghana Limited effective from 1st January, 2018 is applicable to senior management? 3. Whether or not there was a condition of service applicable to senior management? 4. Whether or not the Plaintiff’s employment was lawfully terminated? 5. Whether or not the Plaintiff was made redundant? 6. Whether or not the Plaintiff is entitled to his claims. On 19/10/2022, parties were directed to file their respective witness statements together with any documents they intended to rely on for the trial including their witnesses’ statements. This was duly complied with and so on 18/11/2023 hearing commenced. PLAINTIFF’S CASE: The Plaintiff, a chartered Accountant was appointed by the Defendant as a Finance Officer and rose through the ranks to be the General Manager (GM) of the Defendant and at all times until the restructure of the Defendant by the reconstituted Board. Africa Tiger Holding Limited (ATHL) in October 2019 acquired a 31.7% of the issued shares of the Defendant after which came a Restructuring of the Board of Directors with Henricus Johannes, Marian Wientjes, Imoro Sulemana and Wilson Atta Krofah making up the restructured Board of Directors (See Exhibit “F”). The new board sought for financing for the Defendant and also to restructure the Defendant’s Management Team which included the Plaintiff. According to the Plaintiff, as part of the restructuring drive the Defendant executed a Technical Assistance and Advisory Services Agreement (TAASA) on 16/3/2020 with SIAT NV/SA of Belgium and Ghana Oil Palm Development Company Limited. Further, as part of the restructuring exercise, Adam Van der Westhuizen was appointed to the Board of Directors and later appointed to the role of Chief Executive Officer (CEO), a newly created role by the Defendant who purportedly terminated the appointment of the Plaintiff considering the organisational structure and the roles assigned to the General Manager (GM) or the CEO respectively as the GM accounted to the CEO and not as previously held directly to the Board. Further, the new Board of Directors sought financing for the Defendant and restructure the Defendant’s Management Team (SMT), headed by the Plaintiff. The Plaintiff states further that, the Defendant had to source for loan facility from AgDevco for capital injection into the Defendant’s operations. And as part of the conditions precedent for the grant of the said loan facility from AgDevco, the Defendant was to conclude a shareholders Agreement (SHA) with its shareholders wherein it would commit to restructuring its management. After going through all the above, the Defendant began to pressurise Senior Members (SM) to accept a reduction in their salaries, as the new Board complained that the SM’s salaries were too high for the Defendant to contain. After several discussions on the reduction of salaries, and which did not yield any positive results as the Plaintiff leading the SM, refused to accept a reduced salary, the Plaintiff was axed by being made reductant, which, according to the Plaintiff was part of the restructuring exercise. The Plaintiff concluded that his termination was discussed with Mr Imoro Sulemana on his terminal benefits including a redundancy package of 3 months’ basic salary per each year of service to be paid to Senior Staff upon redundancy per the Defendant’s agreement with senior staff. The Defendant refused to pay the redundancy package even though the terminal benefits were settled, according to the Plaintiff. According to the Plaintiff, he was made redundant by series of events that the Defendant went through which actually included the introduction of the role of CEO, and the Internal Audit Manager (IAM), the application for loan facility, the share acquisition and the execution of the TAASA and also SHA. It is upon the above that the Plaintiff claimed for his redundancy package as he was so made by the Defendant upon the above. DEFENDANT’S CASE: The Defendant generally admitted that when the Plaintiff was employed in 2001, he rose through the ranks as Finance Manager (FM) and finally became the GM and thus the head of the Senior Management. The Defendant stated that usually, as per the practice, the Plaintiff negotiated the conditions of service for senior management (sm) which by practice was led by the Plaintiff on behalf of the Senior Management Team (SMT). The Defendant stated that as per the practice, the Plaintiff led the negations for the SMT and the Board always approved same. The Defendant stated that the Plaintiff’s employment from the time that he was appointed as the GM, his conditions of service as senior management member was negotiated on an ad hoc basis between the Plaintiff representing the SM for approval by the Board. The Defendant stated that pursuant to the above practice and review of conditions of service, it proceeded to request amended conditions of service for the senior management to rationalise the finance of the company. According to the Defendant, this request to the SM followed the realisation that current costs for the SMT contributed to the exorbitant expenses of the Defendant’s. The Defendant stated that the Plaintiff’s employment was terminated in accordance with law. The termination of the Plaintiff’s employment was not based on the events cited by the Plaintiff as matters that rendered him redundant but was pursuant to the Defendant’s right to terminate an employment relationship in accordance with due process and thus the Plaintiff is not entitled to the reliefs sought in his writ of summons and statement of claim. SUBMISSION OF COUNSEL FOR THE PLAINTIFF: Counsel for the Plaintiff submitted that per the Defendant’s own pleadings and witnesses, the Defendant admitted and same corroborated the Plaintiff’s case that when ATHL acquired shares in the Defendant’s company the Board was reconstituted after which its operations were restructured by the introduction of the role of CEO to take the functions of the General Manager (GM) role as the then overall head of the company, even though the name GM existed in the organisational structure amongst others. Counsel submitted that on the authority of In re Asere Stool; Nikoi Olai Amontia IV (Substituted) by Tafo Amon II) v. Akotia Oworsika III (Substituted by Laryea Ayiku III [2005 – 2006] SCGLR 637 there was no need for the Plaintiff to lead further evidence in proof of the fact in issue as a result of the said admission. Counsel submitted that the events leading to the termination of the Plaintiff’s employment actually constituted a redundancy particularly having regard opt S. 65(1) of the Labour Act (Act 651) 2003 on redundancy. Counsel submitted that the Defendant is estopped by its past conduct and acquiescence in allowing the SMT to rely on portions of the senior staff condition of service (Exhibit “BB”) to fill in the gaps in the senior management redundancy package as has been canvassed by the Defendant to be in applicable to the Plaintiff (SMT). Thus, Counsel submitted that from the records, Exhibit “BB” provided for by their package. Counsel submitted further that upon the above, the Plaintiff’s minimum redundancy package due him ought to be based on the method specified in Clause 129 of Exhibit “BB” (Senior Staff Conditions of Service). Counsel in his submission urged the court to compute the redundancy package based on pages 26 and 27 of Exhibit “BB” on redundancy in the Defendant’s company and the computation thereof. Counsel submitted that even though the Plaintiff did receive sums of money, he was still entitled to a redundancy package in the circumstances of his termination and so the Defendant still owed him his redundancy package and more particularly so as the sums allocated to the Plaintiff that on the authorities , the Defendant not having cross-examined the Plaintiff on his evidence as to the extent of his obligation in legal fees and other expenses in relation to his claims before the court, must be taken to have admitted such evidence. SUBMISSION OF COUNSEL FOR THE DEFENDANT: Counsel submitted that on the authorities, particularly, as per those cited, and the events that took place in the Defendant’s company, the Plaintiff’s action ought to fail as he is not entitled to a redundancy package nor any reliefs endorsed on the writ of summons. Counsel submitted by emphasising that the Labour Act (Act 651) for the purposes of redundancy does not expressly provide for RESTRUCTURING as a determining factor. Counsel invited the court to distinguish S. 65(1) from S. 65(2) of Act 651 and worker in S. 65(2) as a redundancy under S. 65(1) cannot be done to affect just one (1) person BUT more than one unlike under S. 65 (2) where the lawmaker used the word worker throughout to suggest that one person can be made redundant under S. 65(2). Counsel submitted that it was never the Plaintiff’s case nor did the Plaintiff demonstrate that the Defendant had undergone any arrangement resulting in the termination of the Plaintiff’s employment which would have entitled him to redundancy pay pursuant to S. 65 (2) of Act 651. On the appointment of Board members, Counsel submitted that a reconstitution of the Board of Directors of the company does not suffice as restructuring as the Plaintiff is claiming. Counsel submitted that even though the Defendant did admit that it introduced two (2) new roles of CEO and Internal Audit Manager (IAM) in September 2020, the position of GM was not scrapped and the Plaintiff occupied same. And so, Counsel submits further that none of the events listed by the Plaintiff constitutes restructuring within the context of S. 65 and therefore the court was invited to dismiss the Plaintiff’s action on that basis. Counsel submitted that the Defendant did not unilaterally insist on the diminution of the Plaintiff’s salary but rather prepared negotiation on upward review of salary but had the intent of cutting losses. Thus, the quest by the Defendant for salary negotiation was as per the practice of the parties over the years and so the one leading to the exit of the Plaintiff was not in isolation. That it is not accurate that the Defendant insisted on reduction or diminution in the conditions of service of it SMT; then headed by the Plaintiff as part of its restructuring exercise. According to Counsel, the Defendant only offered proposals which the Plaintiff did not accept, as the Defendant only exercised its right to negotiate but which failed. Counsel submitted also that the Defendant as an employer was permitted to terminate a contract of employment without disclosing a reason as expressed in Kobi v. Ghana Manganese Co. [2007 – 2008] SCGLR 771. Counsel submitted also that there was no condition of service for Senior Management (SM) and urged the court not to consider or apply Exhibit “BB” for the senior management to include the Plaintiff as Exhibit “BB” did not envisage SM. Counsel submitted that the Plaintiff’s salary was never reviewed downwards after the changes; and that the Plaintiff was lawfully terminated under the Labour Act (Act 651) and so the Plaintiff ought not be entitled to his claim. ANALYSIS/OPINION: It has been held that a trial court is not required to make findings of fact in respect of irrelevant matters on which the parties had led evidence when findings would not assist in the determination of the issue in the case. See Domfe v. Adu [1984 – 86] 1 GLR 653, C. A. “What issue were relevant and essential was a matter of law entirely for the judge to determine - See Fidelity Investment Advisor’s v. Aboagye-Atta [2003 – 2005] 2 GLR 188, C. A. It is settled that the law allows a court not to restrict itself to the resolution of all the issues set down in the application for Directions. “Thus, a court is not bound to consider every conceivable issue arising from the pleadings and evidence. In the opinion of the court, few of the issues could legally settle the case in accordance with law” – See: Vincentia Mensah v. Numo Adjei Kwawko II [2018] 117 GMJ 76 S. C. To that effect therefore no court is tied down to the issues as raised and set down for determination. Therefore, I intend to realign the issues in such ways as to smoothen the analysis. I am more strengthened as both Counsel in their own wisdom decided to join issues in their respective submissions for their determination. Thus, I intend to treat the issues as follows: (i) (ii) Issue (1), (2), (3) and (4). Issue 5, (4 for the Defendant), and issue 5 for the Defendant. In civil matters the standard of proof required is proof on the preponderance of probabilities. This is found in S. 11(1) of the Evidence Act (NRCD 323) and S. 12(2) and (2) thereof. The above provisions have been applied in a legion of cases on the Burden of Proof, standard of proof including the cases of: a) Majolagbe v. Larbi [1959] GLR 190 b) Sumaila Bielbei (No. 3) v. Adamu Dramani, A – G [2012] SCGLR 370. ISSUE 1, 2, 3 AND 4: ON WHETHER OR NOT THE DEFENDANT SOUGHT TO RESTRUCTURE ITS AFFAIRS AFTER THE ACQUISITION OF SOME OF ITS SHARES BY AFRICA TIGER HOLDINGS LIMITED (ATHL), it has been the Plaintiff’s contention that after the African Tiger Holding Limited (ATHL) acquired 31.7% shares in the Defendant’s company, the Defendant sought to restructure its affairs. (See paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 of the statement of claim). See also paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24 of the witness statement. The Defendant denied the above claim by the Plaintiff in paragraph 10 of the statement of defence. Inadvertently however, the Defendant in paragraph 29 of its statement of defence DID ADMIT carrying out restructuring exercise. See paragraph 27 of the statement of claim thus: “27. The Plaintiff says that on 28th September, 2020, he responded to the letter of 22nd September, 2020, pointing out to the Defendant that terminating his appointment as a result of the obvious restructuring being carried out by the Defendant leading to his refusal to be forced to take a reduction in salary amounted to redundancy as a matter of Ghanaian law and demanded a redundancy package and demanded a redundancy package”. The Defendant in paragraph 29 of its statement of defence stated in response to the above thus: “29. The Defendant again admits paragraph 25, 26 and 27 but states that it neither forced the Plaintiff to take a reduction in salary nor terminated the employment of the Plaintiff as a result of any implied restructuring leading to a redundancy situation as alleged’. In the cross-examination of the Plaintiff on the acquisition of some of the Defendant’s shares by ATHL, below is what ensued: Q: From your witness statement, I see about four (4) events listed which you rely on to conclude that there was a restructuring of the Defendant’s business, namely the acquisition of 31.7% of the issued shares of the Defendant by ATHL, Reconstitution of the Defendants Board of Directors, the execution of the shareholders agreement (SHA) and the introduction of two (2) new roles viz chief executive officer (CEO) and Internal Audit Management (IAM). Is A: Q: that correct? Yes, my Lord. Do you agree that 31.7% of issued shares constitute a significant shareholding in a company? A: Yes, my Lord. Q: I put it to you that you did not lose your job after that acquisition and you remained as a G. M even beyond 2019? A: That is not correct. I disagree. This is because the acquisition of the shares issued by the new investor gave it a significant holding in the company. It therefore restructured the board. And the board made policies which guided the company and part of the policies led to my termination. Q: Do I understand you to mean that the acquisition itself did not lead to your termination but the policies made by the company led to your termination? A: I believe that the new directors were appointed by African Tiger, acted on behalf of African Tiger, and so any policy they took was in line with African Tiger’s policies. Q: I further put it to you that there is no provision in the TAASA that suggest a restructuring of the business of the Defendant? A: As stated earlier, this was a change to how the company was to be managed and therefore it could be a restructuring of the way the Defendant was going to be managed. Q: I put it to you that there is nowhere in Exhibit “K” that such commitment to restructure its management was made by the Defendant? A: That is true. But pursuant to this agreement (Exhibit “K”) the Defendant entered into discussions with AgDevco for a facility. And this led to issues in connection with the cost of the business. So, this is where the link comes. So, after the costs issue came up, the board decided to have discussions with Senior Management on salaries. So, this is where the link comes in. Q: So, when were the two roles introduced? A: The introduction of the CEO role was mentioned first in the shareholders agreement (Exhibit “K”). The Internal Auditor was employed on 3/6/2020 WITHOUT MY KNOWLEDGE BUT AT THE TIME WHEN I WAS THE GM? Q: From what you just told this court even though those two roles were introduced, the position of a G. M which you occupied still existed as part of the Senior Management team, and not scrapped. Is that not correct? A: It is correct. However, although the GM role still stayed, the responsibility changed. I was the head of the general operations of the business as the GM. Currently, the head of the business is the CEO. At the time that I was there, I had a Deputy G. M who reported to me and now reports to the C. E. O. So, the names are the same but the roles are different. Q: It is your case that your employment was terminated as a result of this supposed restructuring exercise of which rendered you redundant. Is that correct? A: It is not correct. It is a series of event leading to the redundancy. From the above, a prudent person would easily conclude that indeed, the Defendant sought to restructure the affairs of the Defendant company after the acquisition of 31.7% shares of the Defendant company by ATHL and which particularly, per the above cross- examination, Counsel for the Defendant considered it as constituting a significant shareholding in the company. When in the above cross-examination, the Plaintiff answered the question that there were series of events – at page 10 of the records of proceedings) which led a prudent person to conclude that the circumstances fulfilled the conclusion that the Defendant embarked in a restructuring exercise namely – a) Acquisition of 31/7% of issued shares by ATHL b) Restructuring of Board of Directors with the inclusion of officers of ATHL c) Execution of Share Holders Agreement (SHA) d) Introduction of two (2) new roles CEO and IAM e) AgDevco arrangement. f) The execution of TAASA g) The Deputy GM scrapped. h) The GM not anymore the head of operations but the CEO. i) The GM no more accountable to the Board but to the CEO. DW1 (Emmanuel Nagel) in cross-examination had the following to say: Q: A: Q: After the acquisition of the shares by ATHL in the Defendant Company, the Defendant’s Board was reconstituted? True. And the Defendant’s Board after that reconstitution took steps to restructure the Defendant’s business? A: I do not know but certain things happened that led to the changes that took place. Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: As part of the restructuring the Defendant brought in the role of a CEO? True. And the Defendant scrapped the role of the Deputy G. M. It no longer exists? True. The CEO is now the head of the Defendant’s company? Yes, my Lord. And even though you, the G. M, you report to the C. E. O? True. My question is previously the G. M was the Head of the Defendant? Yes, my Lord. And there was no C. E. O? Yes, my Lord. And the role of Deputy G. M has ceased to exist? Yes, my Lord. The previous board did not complain about the high cost of maintaining the SMT of which you were part at the time? True. The shareholders at the time also never complained about the cost of maintaining the SMT? A: True. Q: And the shareholders at the time also did not complain about not having A: Q: A: Q: A: Q: received dividends in certain years? True. When the reconstituted board begun putting pressure on the Plaintiff to make proposals for reduction in the salaries of SMT, the Plaintiff discussed this with the entire SMT? True. In fact, the Plaintiff shared the draft he made in response to letters or emails from the board with the SMT before sending this to the board? True. So, it will be unfair to say that the Plaintiff used his selfish interest to reject the reduction of salaries on behalf of the SMT? A: True. Because we all agreed for no salary reduction. Aside the actual admission by the Defendant as stated earlier, the law also is that when a party made an averment and the averment was not denied, no issue was joined and no evidence should even be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon it he needed not call further evidence of that fact and this is often called implied admission. See: a) Fori v. Ayirebi & ors [1966] GLR 627, SC. b) Kusi & Kusi v. Bonsu [2010] SCGLR 60 c) Danielli Construction Ltd v. Mabey & Johnson Ltd [2008 - 2007] 1 SCGLR 60. In Asante v. Bogyabi & ors [1966] GLR 232, holding 2, and specifically on corroboration, the court held thus: “Where the evidence of one party on an issue in a suit was corroborated by witness of his opponent whilst that of his opponent on the same issue stood uncorroborated evidence by his own witness, a court ought not to accept the uncorroborated evidence unless for some good reason which must appear on the face of the judgment, the court found the corroborated version incredible or impossible”. Also, in the pleadings, certain admissions were made as to some facts particularly on the part of the Defendant as stated earlier in this judgment. The parties are bound by their pleadings particularly the Defendant as in this case. (See: Takyi v. Appiah [1982 – 83] 1 GLR, C. A. I therefore do not hesitate to agree with the submission of Counsel for the Plaintiff on the above position as stated in page 7, paragraph 2 of Counsel’s submission on the Supreme Court decision that a party is bound by his/her pleadings and must not be allowed to maintain a contrary position to such pleadings on the authority of Okwei Mensah (D’d) (Action by) Adumuah Okwei v. Laryea (D’d) (action by) Ashieteye Laryea & anor [2011] 1 SCGLR 317, holding 4. The evidence is that, before the acquisition of shares of the Defendant company by ATHL, the Defendant company then being headed by the Plaintiff was performing creditably well to the effect that in 2019, some dividends were declared. See cross-examination of DW1 (Emmanuel Nagel) thus: Q: In all, how many years were you part of the SMT? A: I remember I worked with the Plaintiff for 12 years as a Senior Management member. Q: And in these 12 years, the Defendants even declared dividends? A: True. Our best performance was in 2019. Q: And that was still under the leadership of the Plaintiff? A: Yes, my Lord. On all of the above, I find that indeed the Defendant, from the evidence sought to restructure its affairs at the Directors level, Policy level, structural and organisational levels. On Issue (2), the Plaintiff pleaded in paragraphs 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 of the statement of claim and led evidence on same to the effect that the Defendant insisted and put pressure on the Senior Management Team (SMT) led by the Plaintiff for a diminution in their conditions of service by a reduction of their salaries. (See paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of the witness statement). Typical of a defence, the Defendant denied the above in paragraph 14 of its statement of defence to the effect that no pressure was brought to bear on the SMT to take a reduction in the salaries (See also paragraphs 16, 17 and 22 of the witness statement of the Defendant). I have held elsewhere in this judgment that indeed after the acquisition of shares in the Defendant’s company, by ATHL, and per its holding of 31.7% shares in the Defendant’s company, ATHL had sufficient influence on the Board of Directors and so influenced the Board to restructure the affairs of the Defendant in diverse ways. The list has been stated in this judgement from the evidence, they included the Board’s decision to seek an almost 50% (fifty per centum) reduction of the SMT and in this case the Plaintiff’s salary but which the Plaintiff did not yield. The evidence is that at that time, the Defendant company had over the past 12 years been headed by the Plaintiff wherein they even made profits by declaring dividends in 2019 (See page 42 of the record of proceedings during the cross- examination of DW1 (Emmanuel Nagel). The evidence is that when the reconstituted Board took the policy decision to seek for such diminution in salary of the SMT, it was then led and headed by the Plaintiff. Over the period, the Board could not break through the front of the SMT as they refused to accede to its pressure. Upon breaching the front of the SMT, per the evidence, where every individual member of the SMT was dealt with individually on their respective reductions, the Plaintiff was shown the exit. See the following cross-examination of DW1(Emmanuel Nagel) thus: Q: Now, in negotiating the conditions of service of Senior Management Team (SMT), it was the Plaintiff that acted on behalf of the SMT with the Board at the time? A: True. Q: When the reconstituted board begun putting pressure on the Plaintiff to make proposals for reduction in the salaries of SMT, the Plaintiff discussed this with the entire SMT? A: True. Q: In fact, the Plaintiff shared the draft he made in response to letters or emails from the Board with the SMT before sending this to the board? A: True. Q: So, it will be unfair to say that the Plaintiff used his selfish interest to reject the reduction of salaries on behalf of the SMT? A: True. Because we all agreed for no salary reduction. Q: When the Plaintiff refused to be forced to accept a reduction of his salary, he was terminated by the Defendant? A: By way of answer, I want to explain a little bit. Initially, when the issue started it was the Plaintiff who was communicating with the board on behalf of the SMT. It got to a time, the Board decided to skip with the Plaintiff and deal with individual members of the SMT. So, our first meeting was at Atlantic Hotel, Takoradi. At that time, we were called one after the other. The Plaintiff was the first to be called. I was the second to be called and the others followed. So, at that part, we were given individual letters to respond. And I can talk about what is contained in my letter out not for the others as I do not know the content of theirs. Q: Do you know what happened to the other members of the SMT at the time? A: Yes, my Lord. Q: Can you tell the court? A: After the meeting at Atlantic Hotel where we were given letters, we were given a timeline to respond to same. Subsequently, the next day, we met the Board members at the Plantation office. So, they asked us about our response to the letters given to us. So collectively we said to the Board that if there was anything to be done was to hold on to and maintain the salary levels at the time for up to two years and that was the sacrifice that we could do for the Defendant. After that, the Board did not accept this. So, we were asked to respond to the letters individually and officially. So, from there, we replied individually and I do not know of the individual responses. Q: But you have since become aware that the Plaintiff refused the reduction of his salary? A: Yes, my Lord. Q: And his termination was after this refusal? A: True. The above coming from the Defendant’s witness answers all nagging questions that any doubtful Thomas may have regarding the handling of the Plaintiff by the reconstituted Board of Directors. From the evidence, I find that aside the series of events which were embarked upon by the Defendants upon the acquisition of 31.7% shares of the Defendant issued shares by ATHL, the Directors who were taking 1000’s of Euros from their proxies could not have completed their agenda unless the business of the Defendant company then headed by the Plaintiff who steered the affairs of the Defendants as the overall head and having declared dividends in 2019 had been ‘”silenced”. And from the evidence together with the exhibits before the court, I find that the Defendant could not have completed the restructuring exercise without axing the Plaintiff, as from the evidence and in my humble view, the Plaintiff was too hard a nut to crack. From the above cross-examination of DW1, it clearly corroborates the Plaintiff’s case in diverse ways to the effect on the fact in issue that pressure was put to bear on the Plaintiff and for that matter the SMT for a reduction of salaries (conditions of service). The Supreme Court in the case of Emmanuel N. A Kotey & 173 ors v. Kwame Pianim & ors [2022] DLSC 11684, SC had this to say on corroboration. “It is trite that where a party’s evidence is corroborated of that of his opponent or his opponent’s evidence, the court cannot prefer that of his opponent without good and stated reason”. See also: a) Manu v. Nsiah [2005 – 2006] SCGLR 25 b) Yakubu v. Yakubu [2015] 55 GMJ 97. I hold therefore that indeed, and as particularly admitted by DW1 (Emmanuel Nagel) who corroborated the Plaintiff’s case, the Defendant insisted on a reduction or a diminution in the conditions of service of its management team, then headed by the Plaintiff as part of the Defendant’s arrangement. On issue 3 and 4, the Plaintiff pleaded in paragraphs 21, 22 and 23 of the statement of claim that the Defendant on 19/8/2020, as a Board, met each member of the then SMT of the Defendant individually at the Atlantic Hotel, Takoradi after which a letter was delivered to the members of the SMT personally proposing a reduction of almost 50% in the salary of the Plaintiff (in the Plaintiff’s case) stating that the Defendant faced some financial difficulties and thus lacked the capacity to pay the high salaries of the SMT. The above was confirmed in the Plaintiff’s evidence in paragraphs 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 of the witness statement. Here again, the Defendant admitted to the above position of the Plaintiff’s evidence in the pleadings in paragraph 25 of the defence. On the above admission, see the cases of a) Danielli Construction Ltd v. Mabey & Johnson Ltd [2008 - 2007] 1 SCGLR 60. b) Aryetey v. Brown [2006] 5 MLRG 160, C. A. See also the cross-examination of DW1 at pages 42, 43, 45 and 45 of the record of proceedings. I therefore do not hesitate at all in holding that from the evidence, the Defendant insisted on the said reduction or diminution on its management team’s conditions of service. Indeed, the Plaintiff pleaded same in paragraph 27 of his statement of claim thus: “27. The Plaintiff says that on 28th September, 2020, he responded to the letter of 22nd September, 2020 POINTING out to the DEFENDANT THAT TERMINATING HIS APPOINTMENT AS A RESULT OF THE OBVIOUS RESTRUCTURING BEING carried out by the Defendant leading to his refusal to be force to take a reduction in salary amounted to redundancy as a matter of Ghanaian law and demanded a redundancy package”. This pleading was affirmed in the Plaintiff’s witness statement in paragraph 29 thereof. This was admitted by the Defendant in paragraph 29 of the statement of defence. See Exhibits “Q”, “S”, “T” and “U” regarding the correspondence between the parties. On this admission, see: a) Order 11 r (13) and (14) of C. I 47. b) Appiah v. Anane [2019 – 2020] 2 SCGLR 828. ON WHETHER OR NOT THE PLAINTIFF AS THE GENERAL MANAGER OF THE DEFENDANT WAS A MEMBER OF THE SENIOR STAFF OR SENIOR MANAGEMENT, the Plaintiff pleaded in page 14 of the statement of claim that after the Defendant had executed the TAASA and SHA, the restructured board of the Defendant began to put pressure on the existing senior management of the Defendant headed by the Plaintiff to take a reduction in their salaries. The above was evidenced in paragraphs 13, 14, 15, 16, 17 and 18 of the witness statement. The Defendant was silent on this in his defence. It has been held that silence may amount to admission when it is natural to expect a reply. (See Bessaka v. Stern [1877] 37 LI. 88, EA. Moreover, no issue is joined on the above as it has, from the evidence become a notorious fact that considering the role played by the Plaintiff when he was employed and rising through the ranks to become the General Manager would naturally earn him the role of a senior manager. The above issue was resolved during the cross-examination of the Plaintiff thus: Q: Have a look at Clause 2 (on organization) on Exhibit BB at page 124. Read the second paragraph of Exhibit BB on Management. So, you then agree with me that you, being G. M at the time, you formed part of the Senior Management per Exhibit BB (page 124)? A: Yes. Per my appointment letter of 1/1/2005 as Finance Manager (FM), there was a clause, that my appointment will be subject to the conditions of service for management and senior staff of the company. There was no condition of service for Senior Management which is the grade that I belong to. However, by convention, Senior Management benefitted from sections of this Exhibit “BB” (the conditions of service for senior staff of Norpalm Ghana Ltd effective 1st January, 2018). Indeed, the honest and neutral witness of the Defendant (DW1 – Emmanuel Nagel) in his cross-examination had the following to say on the issue in point thus: Q: The SMT of the Defendant of which you were part as with the Plaintiff, some of its benefits have been calculated based on the senior staff conditions of service? A: I cannot remember. Q: Benefits such as the long service awards, debts of Dependents, out of station, entertained, hotel accommodation allowances, allowances for use of own car for business purposes, retirement benefits, financial grants, groups accident insurance and surgery were all calculated for the SMT based on the senior staff conditions of service? A: It is difficult for me to say yes or not. I have to explain. The SMT did not have written conditions of service. And so, some of the decisions were taken by the Plaintiff and the Board with regards the conditions of service for Senior Management (SM). There were some that we relied on the senior staff conditions of service (SSCS). Here again, I wish to refer to the case of Majolagbe v. Larbi [1959] GLR 190 on corroboration. I therefore find that from the evidence, both the Plaintiff and DW1 were members of the SMT and so were not technically members of the senior staff but they did enjoy some portions of Exhibit “BB”. ON WHETHER OF NOT THE CONDITIONS OF SERVICE FOR SENIOR STAFF OF NORPALM (GH) LTD EFFECTIVE FROM 1ST JANUARY, 2018 IS APPLICABLE TO SENIOR MANAGEMENT, the following cross-examination of the parties may be of help in resolving same. Cross-examination of DW1 (Emmanuel Nagel): Q: Benefits such as the long service awards, debts of Dependents, out of station, entertained, hotel accommodation allowances, allowances for use of own car for business purposes, retirement benefits, financial grants, groups accident insurance and surgery were all calculated for the SMT based on the senior staff conditions of service? A: It is difficult for me to say yes or not. I have to explain. The SMT did not have written conditions of service. And so, some of the decisions were taken by the Plaintiff and the Board with regards the conditions of service for Senior Management (SM). There were some that we relied on the senior staff conditions of service (SSCS). The conditions of service of senior staff is Exhibit “BB”. The Plaintiff had maintained in cross-examination that portions of Exhibits BB were originally relied on for the SMT. See also pages 5 and 6 of the record of proceedings on the cross-examination of the Plaintiff on Exhibit “BB” AS THIS HAS BEEN THE POSIITION FO THE Plaintiff throughout the evidence. The evidence is that the senior management did not have their own conditions of service but very often in case of any challenge, the SMT relied on provisions of the senior staff’s condition of service to harmonize the work in the Defendant’s company. See pages 5 and 6 of the cross-examination of the Plaintiff of the record of proceedings, page 41 on the cross- examination of DW1 on the subject. It is therefore my finding that even though the SMT did not have conditions of service documented as pertained to senior staff (Exhibit “BB”), the SMT most often relied on some provisions in Exhibit BB for their work in the Defendant’s company. ISSUE 5; 4 AND 5 (FOR THE DEFENDANT): ON WHETHER OR NOT THE PLAINTIFF’S TERMINATION CONSTITUTES A REDUNDANCY/ WHETHER OR NOT THE PLAINTIFF’S EMPLOYMENT WAS LAWFULLY TERMINATED/WHETHER OR NOT THE PLAINTIFF WAS MADE REDUNDANT, The Plaintiff pleaded in paragraph 26 and 27 of the statement of claim that his appointment was terminated by the Defendant with the Board Chairman announcing same to him on 24/9/2020 via a telephone call and later on same was followed up with a letter. (See paragraphs 28 and 29 of the witness statement). This was admitted by the Defendant in paragraph 29 of its statement of defence. In view of the above having been admitted, no issue is joined. See on admission the cases of: a) Foli v. Ayirebi & ors [1966] GLR 627, SC b) Hammond v. Amuah & anor [1991] 1 GLR 89 c) Adams Addy & anor v. Solomon Mintah Ackaah [2021] 172, GMJ 363, SC. Moreover, the Defendant seemed to have used the above as the trump card of its defence to the effect that the Plaintiff’s appointment was lawfully terminated and thus there was no need or use or requirement of a redundancy package. It has also been held that a contract of employment is clearly terminable. (See Ashun v. Accra Brewery Ltd [2009] 6 GMJ 24, SC. Also, S. 15 of the Labour Act (Act 651) has brought an intervention into the common law principles on termination of employment and the grounds of termination of appointment are not limited. (See: Williams Appiah v. cocoa Marketing Company [293] 62 GMJ 116, CA per Dennis Adjei J. A. See also Kobi v. Ghana Manganese Co. Ltd [2007] MLRG 52, SC per Atuguba, JSC on an employer’s right to terminate a contract of service and the terms therein stipulated. From the evidence, there does not seem to be any differences on the termination of the Plaintiff’s appointment with the Defendant. The question that is posed is; was it indeed a redundancy called termination? After all, it is trite that there is no guarantee for a worker until his retirement in contract of employment. (See: Achana v. Kasena-Nankani Local Council [1960] 1 GLR 499. The Defendant answers the above rhetorical question in the negative whereas the Plaintiff answers in the affirmative. And for this court, this is the central issue of the whole matter, as the other issues are, as I prefer to call them ancillary. The Plaintiff, upon the announcement of his termination by the Board Chairman of the Defendant and followed with a letter to that effect responded to same in paragraph 27 of his statement of claim that his termination was indeed a redundancy and that he would demand his redundancy package. “Redundancy in my view is a form of termination. Redundancy is often defined as: “Occurring when an employer contemplates the introduction of a major change in production, programme, organisation, structure or technology of an undertaking that is likely to entail termination of employment of workers in the industry.” This issue is directly linked to the others relating to whether or not the termination of the Plaintiff’s employment constitutes redundancy. That is, whether or not the Plaintiff was made redundant. As stated earlier, the parties are ad idem on the issue of “Termination”. There indeed is no need to discuss the issue any further, particularly as has been stated above in this judgment and on this issue. Black’s Law Dictionary (11th Ed.) By Bryan A. Garner @ page 1531 defines “REDUNDANCY” as follows: (i) A situation in which something is unnecessary because something else similar or the same is already present especially a word or phrase that is superfluous because its sense is already contained in the sentence or passage. English Law: (ii) A situation in which an employee is laid off from work because the employer no longer needs the employee of Downsizing. Also, “Redundancy” has a statutory meaning. The current definition is to be found in S. 65 of the Labour Act, 2003 (Act 657). “S. 65 (1) When an employer contemplates the introduction of major changes in production, programme, organisation, structure, technology of an undertaking that are likely to entail terminations of employment of workers in the undertaking, the employer shall: (2) Without prejudice to subsection (1), where an undertaking is closed down or undergoes an arrangement or amalgamation and the close down, arrangement or amalgamation causes (a) Severance of the legal relationship of worker and employer as it existed immediately before the close down, arrangement or amalgamation; and (b) As a result of and in addition to the severance that worker becomes unemployed or suffers any diminution in the terms and conditions of employment, the worker is entitled to be paid by the undertaking at which that worker was immediately employed prior to the close down, arrangement or amalgamation, compensation, in this section referred to as “redundancy pay”. “S. 65(4) The amount of redundancy pay and the terms and conditions of payment are matters which are subject to negotiation between the employer or a representative of the employer on the one hand and the worker or the trade union concerned on the other. The above provision has also been extensively discussed by Dr Twum JSC in Baiden & ors v. Graphic Corporation [2007] 11 MLRG 33 @ page 60 – 62 thereof. I therefore do not agree entirely with Counsel for the Defendant when he submitted at page 34 of his written submission on redundancy that, the Labour Act, 2003 (Act 651) does not provide definition for “Redundancy”. I think S. 65 of Act 651 provides enough meaning to redundancy. Again, I have carefully considered Counsel’s submission on Redundancy and the various foreign cases cited including even Ghanaian ones. And, I honestly think that the one that comes very close to the fore are Baiden v. Graphics Corporation (supra) on the issue of the meaning of redundancy in National Labour Commission v. First Atlantic Bank Limited [2020] Civil Appeal No. J4/62/2019 delivered on 2nd December, 2020 wherein the case of Kobi v. Ghana Manganese Co. Ltd [2007-2008] 2 SCGLR 771 was cited on the meaning of redundancy in Ghanaian jurisdiction and specifically on Act 651, S. 65 thereof. At page 37 of Counsel’s submission and in paragraph 1 thereof, Counsel for the Defendant provided thus: “From a more technical point of view, per the above laws and legal principles, it our submission that, a redundancy will only arise or will be applicable where: (a) There is a likelihood of termination of an employee’s employment as a result of an employers contemplated introduction of major change in production, programme, organisation, structure or technology of its undertaking (b) The employer-employee legal relationship existing before an employer’s undertaking undergoes an arrangement/amalgamation or is closed down is severed o the extent that it results in the employee becoming unemployed or suffers any diminution in the terms and conditions of employment. Counsel for the Defendant brilliantly undertook an academic exercise on this issue of redundancy and sought to explain various scenarios regarding same. Eventually, Counsel concluded his submission on the issue that the Plaintiff infact admitted to having maintained his position as GM even after the said restructuring took place that he maintained his role right until he was eventually terminated by the Defendant, a right the Defendant was entitled to exercise. Consequently, therefore, Counsel submitted that the Plaintiff did not lose his employment as a result of the restructuring and never also suffered any diminution in salary. Here, with due respect, much as I do applaud Counsel for his brilliance throughout his submission on the matter, his appreciation of redundancy in relation to the case in point sounds very limited as in my humble view, the above seems quite economical from the prudent man’s stand point. I am glad that by the above analysis, Counsel does admit, just as the Defendant and his witness did admit in their pleadings, evidence and in cross-examination that there was indeed a restructuring exercise of the Defendant company and the Plaintiff naturally became the victim due to his stand as a leader of the SMT and thus had to use his head for the changing Board as part of the restructuring exercise. I am quite surprised that Counsel did not factor the following in his submissions when analysing the issue which all bordered on the restructuring of the Defendant company. 1. The acquisition of 31.7% shares of the Defendant’s issued shares to ATHL resulting in the ATHL playing a unique and significant shareholding in the affairs of the Defendant’s company. (See cross-examination of Plaintiff at page 10 of the record of proceedings on the question posed by Counsel for the Defendant on the significance of the acquisition of 31.7% shares by ATHL). 2. It was admitted that upon the acquisition of shares by ATHL in the Defendant company, the Board of Directors of the Defendant company was restructured and Directors for ATHL had controlling roles in the Defendant’s company. 3. After the officers of ATHL being part of the Directors in the Defendant company as Board Members, they also restructured the policies of the Defendant in diverse ways. 4. After restructuring the Board and its policies, the officers from ATHL also sought to restructure the finances of the Defendant by sourcing for funds from other places including AgDevco which included work on TAASA and SHA. 5. As part of the restructuring exercise, the organisational structure changed which negatively affected the Plaintiff directly who had headed the Defendant as the GM. When the Board was reconstituted and the policies restructured, they sought to change the role of the Plaintiff by belittling same. The Board led by ATHL officers then introduced two (2) major roles in the Defendant Company – the CEO and the Internal Audit Manager (IAM). Plus, other important roles like the Deputy GM being scrapped, and thus rendering or maintaining the GM position in the structure just in name with its roles yielded to the CEO. 6. And as part of the restructuring exercise the overall head of the Defendant Company became the CEO (headed by an officer of ATHL) and even though the Plaintiff maintained his position, he became accountable to the CEO instead of the original situation where the GM was answerable to none but the Board. 7. As part of the restructuring exercise, the Board demanded from the SMT then led and headed by the Plaintiff as the GM to have a diminution in salary – almost equal to 50% which was admitted by the Defendant. (See paragraph 21 of the statement of claim and the admission by the Defendant in paragraph 25 of the defence and also cross-examination of DW1 (Emmanuel Nagel) Thus, it is true that the Plaintiff’s salary did not suffer any diminution but it is because he resisted same as the leader of the SMT and his termination immediately after the Board had a breakthrough in the reduction in salary of the SMT. A recount of how the events happened per the cross-examination of DW1 produces goose pimples to every neutral by stander watching events unfolding in such situation when eventually, the Plaintiff had to be side stepped because of his unyielding and unbending position as a leader of the SMT and the Board after putting pressure on the members of the SMT eventually dealt with the members individually and thus was able to push through its planned restructure of providing almost a 50% reduction of the conditions of service of the SMT on reduction of the salaries. The Plaintiff had to suffer as a result of exhibiting leadership qualities to save his people. To show the Plaintiff where power lies, the Defendant, to complete their restructuring exercise, did not need a hot headed person like the Plaintiff in its affairs. This and others I find as a redundancy. To me, this is unfair. This is unacceptable. This is disingenuous. It is indeed an action perpetuated mala fide to the extent that the party’s role/position existed just in name but in reality, his role diminished without even being able to recruit or sign sensitive documents on appointments (see the appointment of senior staff and signed by Imoro Sulemana). It is not surprising therefore that when the Board Chairman terminated the appointment of the Plaintiff, the Plaintiff in paragraph 27 of his statement of claim demanded his redundancy package as he rightly described his termination as a form of redundancy thus: “27. The Plaintiff says that on 28th September, 2020, he responded to the letter of 22nd September, 2020, pointing out to the Defendant that terminating his appointment as a result of the obvious restructuring being carried out by the Defendant leading to his refusal to be forced to take a reduction in salary Amounted to REDUNDANCY as a matter of Ghanaian law and DEMANDED A REDUNDANCY PACKAGE AND DEMANDED A REDUNDANCY PACKAGE”. I do agree with the submission of Counsel for the Plaintiff at page 11, paragraphs 22 and 23 thereof that indeed there is enough evidence including admissions in pleadings, evidence and in cross-examination of all the parties particularly the corroborative evidence of DW1 that upon the acquisition of shares by ATHL in the Defendant’s company, the Board of Directors were upon the influence of the officers/Agents/Representatives of ATHL RECONSTITUTED after which policies were effected by the Defendant with the influence of the Reconstituted Board and the operations and structures of the Defendant company were restructured which also included the role of the GM being changed fundamentally, per the evidence and also the importation of the roles of CEO and Internal Audit Manager after which came the policy of putting pressure on the SMT then led by the Plaintiff for almost a fifty per centum reduction in salary. From the evidence, and specifically from the cross-examination of DW1, after failing to lift Mount Olympus in the person of the Plaintiff standing firm as a leader of the SMT and urging the reconstituted Board to at least maintain their salary levels, the Board who had continued to put pressure not only on the SMT but specifically, targeted the Plaintiff, side stepped him and eventually achieved their aim by the reduction in salaries as per their policy, plans, organisation, structure and arrangement. See also question (5) and answer of the cross-examination of the Defendant on restructuring at page 27 of the record of proceedings, question (1) and answer of the cross- examination of the Defendant on restructuring at page 34 of the record of proceedings, question (8) and answer of the cross-examination of the Defendant on restructuring at page 35 of the record of proceedings, questions (1), (2), (3), (4), (5), (7) and (8) and answers of the cross-examination of the Defendant on restructuring at page 36 of the record of proceedings, questions (3), (4) and (5) and answers of the cross-examination of the Defendant on restructuring at page 37 of the record of proceedings all on these issues. All the above therefore, in my view, constituted a redundancy as rightly pleaded by the Plaintiff in the said paragraph 27 of his statement of claim and the various admissions made therein by the Defendant which under the rules of evidence did not even need any further proof. See: (1) S. O Ablakwah & anor v. J. O. Lamptey & ors [2013 – 2014] 1 SC GLR 16. (2) Appiah v. Anane [2019 - 2020] 2 SCGLR 828. I find that a GM who has headed and led a company for years and helped it to declare dividends in 2019 (per the cross-examination of DW1) and then accountable and answerable only to the Board of Directors cannot bona fide, be made, upon the acquisition of 31.7%with new board members from ATHL, change the constitution of the Board, change the Defendant’s policies, restructure the organisation by bringing new major roles of CEO and IAM effectively making the GM position answerable and accountable to the CEO instead of the Board amounts to a redundancy of the Plaintiff. I find also that the Defendant was only being smart to assert its right under the Labour Act (Act 651), S. 15 thereof on its right to terminate the appointment of the Plaintiff (without even assigning reasons). This also amounts to an action mala fide. And no neutral empire, no prudent person, no court of equity and fairness will ever accept this in the face of all the above, the evidence and the Exhibits particularly on this/issue Exhibits Q, S, T, V. Particular considerations ought to be given to Exhibit “H”, J series, “K”, “P”, “Y”, “Z”, AA, AA1, BB and CC series. I find that all the circumstances of the Plaintiff’s termination, examined critically and carefully by this court ought to be determined with special considerations to the Labour Act, as this actually is a Labour issue. The Defendant sought to justify his decision to terminate the Plaintiff’s appointment under S. 15 of Act 651 as a right reserved for the employer and which is conceded generally but same ought not be used in this circumstances. The Plaintiff also sought to urge this court to consider the said termination under S. 65 of the same Act. S. 65 of Act 651 is on Redundancy. And having found that the instant situation ought not to be considered under S. 15 of the Labour Act but rather S. 65 of the Act as stated earlier in this judgment, I refer to the said section thus S. 65 – Redundancy: I have held that indeed from the evidence particularly including the admissions made by the Defendant, the Defendant after the acquisition of shares by ATHL embarked on a policy direction of effecting major changes in the production, programme, ORGANISATION and STRUCTURE of the Defendant company which affected its workers and in the instant case the Plaintiff (as a worker (See S. 65(2) of Act 651). S. 65 of Act 651 deals with redundancy. S. 65(1) deals with a situation when the employer contemplates the introduction of major changes in among others the ORGANISATION, STRUCTURE. The above have been underlined for the sake of emphasis. The evidence, as admitted by the Defendant is that it actually, offloaded 31.7% of its shares to ATHL, which was a significant stake in the Defendant’s company, ATHL in turn admitted its officers joining the Board of Directors of the Defendant company and occupying the roles of CEO and others as part of the Restructuring exercise of the Board of the Defendant, restructured the policies of the Defendant company, restructured the roles of senior management team which affected the Plaintiff by about a fifty per centum reduction in salaries of SMT as a policy including the Plaintiff. For the Plaintiff withstanding the above 50% reduction of the conditions of service of the SMT as a leader of the SMT then became the victim as in this court’s view, the Plaintiff had been a target from the evidence – scraping Deputy GM, bringing CEO, other and GM existing only in a name with its major duties offloaded to the CEO by recruiting and appointment. Aside the above, S. 65(2) also provides among others thus: “2. Without prejudice to subsection (1), where an undertaking is closed down or UNDERGOES AN ARRANGEMENT or amalgamation and the close down, arrangement or amalgamation causes. (a) SEVERANCE of the legal relationship of worker and employer as it existed immediately before the close down, ARRANGEMENT or amalgamation; and (a) As a result of and in addition to the severance that worker becomes UNEMPLOYED or suffers any DIMINUTION in the terms and CONDITIONS OF EMPLOYMENT, THE WORKER IS ENTITLED TO BE PAID BY THE UNDERTAKING at which that worker was immediately employed prior to the close down, arrangement or amalgamation, compensation, in this section referred to as “Redundancy pay”. The Plaintiff’s situation perfectly fits into the above provision as stated above in the Labour Act, Act 651. The Plaintiff’s situation fits into S. 65 of the Act which deals with Redundancy. Treating the issue of Termination of the Plaintiff’s appointment in isolation will not in my view, render substantial justice, but rather due consideration has to be given to series of events, actions, of the reconstituted Board in the Defendant would provide the real and actual picture, intent, plan, arrangement of the Defendant in the circumstances. In my humble view, on the totality of the case, and the evidence before the court, the Defendant underwent an arrangement by restructuring its shareholding, with the selling of its shares to include ATHL, restructuring its Board (to include officers of ATHL), restructured it organisational structure which were major in nature and had consequential rippling effects on some of the workers with the Plaintiff drastically hit by such organisational structure/arrangement to the extent of major changes which brought in the positions of CEO which was not present before the restructuring of the Defendant’s shares to include Board chair and others for ATHL, bringing in new roles of CEO, IAM and thus reducing the role of GM to a subservient personality in the Defendant company which was until all of the said restructuring never the situation. Until the above restructure was undertaken by the Defendant, the Plaintiff, then as the GM, was the overall official leading the whole of the company and answerable only to the Board. But with the new roles of IAM and CEO, some of the restructuring affected the position of Deputy GM which became defunct, and the Plaintiff’s position as the GM became nominal as the GM position became accountable to the CEO and not the Board. (See pages 43, 44 and 45 of the record of proceedings on the cross-examination of DW1). The above having been admitted by the Defendant through DW1 in the said cross- examination at the above pages in the proceedings, and per the authorities on admission, most of which have already been listed supra), there is therefore no need for the Plaintiff to lead any evidence on that fact. What is more baffling to the court is the evidence that, as part of the “arrangement” of the Defendant, and as stated earlier in this judgment, when the IAM role was created, a recruitment drive was embarked upon. From the evidence, this recruitment drive was undertaken whilst the Plaintiff was still at post as the GM but the Defendant never involved the Plaintiff in such exercise- a role for GM’s involvement. Very sadly though, the appointment letter for the officer to fill the position of IAM was signed by Imoro Sulemana, a witness in this case who testified for the Defendant. (See pages 35, 36 and 37 of the record of proceedings. Q: See Exhibit NGL 10 on the termination of the Plaintiff dated 22/09/2020? A: Correct. Q: So, prior to this date, you were not the Acting G. M of the Defendant? A: Correct. I was a Director of the Defendant. And for that extent, I was the boss of the Plaintiff. Q: See Exhibit “EE” series on the offer of employment dated 3/09/2020 for the full-time position of Plantation Manager and addressed to Mr. Sowu Adobgedoh? A: True. Q: Turn to page 168 in the bundle, but the third page of Exhibit EE. Confirm to the court that Mr. Imoro Sulemana who signed that document as the G. M is your good self? A: True, that is my signature. I could have done that as a director of the Defendant. The Board is the ultimate decider. And as a Director, I could always assume any responsibility of the Board. Q: Confirm to the court that by 3/9/2020, the Plaintiff was still at post of the Defendant as the G. M of the Defendant? A: True. I think so. In my humble view, the above admissions coming from the witness who usurped the position of the Plaintiff even before the Plaintiff was issued his termination was an act mala fide. This confirms to me that all along, the Defendant had had a modus operandi of getting rid of the Plaintiff even before his redundancy couched in the manner of Termination was effected. The Director who represented the Defendant in this case, by the above cross- examination acted as GM when the Plaintiff was at post, and the Plaintiff was not made aware initially of the recruitment drive, the appointment and the signature to the letter of appointment were all effected at the blind side of the Plaintiff who was then the substantive manager, and by convention ought to have handled same. So, in my view, in effect, the Defendant by the arrangement in its business, did not need the Plaintiff any more. And this amounts to redundancy for which reason the Plaintiff’s redundancy package ought to be worked out for him. The question that any prudent and neutral umpire would ask is “why did the Defendant in undertaking such arrangement not involve the Plaintiff at all in such matters or the recruitment of officers and signing of letters of appointment – a role for GM? I therefore do not hesitate at all to hold that the Plaintiff’s termination was not a termination as under S.15 of Act 651, but rather a redundancy as captured under S. 65(1) and (2) of Act 651 and for which reason, the Plaintiff’s redundancy package has to be paid to him as per the S. 65 of Act 651. And, from the evidence there is a precedent that the Defendant has paid a redundancy package for its staff. I therefore direct as per S. 65 (3) and (4) of Act 651 that within thirty (30) days from the date of this judgment, the parties in this case sit down, negotiate and the Plaintiff’s redundancy paid to him. I have made the above finding very mindful of the fact that the Plaintiff did receive some monies from the Defendant as part of his entitlement. It is as a result of the above that I have directed the parties to sit down, negotiate and make a payment as required under the Labour Act, S. 65(3) and (4) thereof on redundancy. Regarding legal expenses, Counsel for the Defendant submitted that the Plaintiff is not entitled to same as his case ought to fail. Counsel for the Plaintiff had advocated a quantum befitting the Plaintiff’s action and more particularly as he failed to cross-examine the Plaintiff on it. Much as I do appreciate Counsel’s copious and forceful submission for legal costs and expenses, I wish to draw the Plaintiff’s mind to the fact that litigation is quite expensive. What matters is the delivery of justice. So, it must not be abnormal if a party gets justice and is not able to recoup all of his expenses. It is true also that from the records, when the Defendant axed the Plaintiff by that arrangement, the Plaintiff hinted the Defendant through Mr Imoro Sulmana that the action of the Defendant amounted to redundancy and so would seek to claim same from them. At that moment, the Defendant ought to have been magnanimous enough to have sat down with the Plaintiff to address the concerns of the Plaintiff. This was not done. Awarding an amount of Gh¢20,000.00 in favour of the Plaintiff as against the Defendant in my view is quite reasonable. I wish to make a comment or two about the representative of the Defendant in the case. I have been compelled to make a comment about the demeanour, credibility of the witness. I have considered S. 80(1) and (2) of the Evidence Act (NRCD 323) in this regard. In Obeng v. Bempomaa [1992 – 93] GBR 1027, per Lamptey JA in holding 1, below is what was stated: “Inconsistencies, though individually colourless may cumulatively discredit the claim of the proponent of the evidence. The conflicts in the evidence of the Plaintiff and his witness breached the merit of his case and proved fatal to his claim”. There were many times that the witness’ answer raised credibility issues. Some of his answers were quite evasive and some were even contradictory. (See the cross-examination of the witness at pages 32, 33, 36, 37 and 38 of the record of proceedings). Q: Would you remember around when Mr. Adam in 2020 became the Chief A: Q: A: Executive Officer (CEO) of the Defendant Company? It is either late 2020 or early 2021. I am not so sure of the date. Who are the owners of GOPDC? I have no idea. Q: At the time of the acquisition of the shares, how many members were on the Defendant’s Board? A: Q: A: Q: I do not know the correct number of Directors on the Defendant’s Board. By September, 2020, how many members were on the Defendant’s Board? Four (4), my Lord. Please confirm to the court that the Board of the Defendant was reconstituted after the acquisition of the shares. A: It was a replacement of Directors of PZ Cusson because we bought the shares and so we took up the seats that PZ Cusson had. At that time, there were changes in the Defendant’s Board. Their board too was changed and it was normal in every business. Q: Confirm to the court that you, Adams and Wientjes, all three, became members of the Defendant’s Board only after the acquisition of the shares. A: Q: A: Q: A: We became Directors after African Tiger Holdings took up the shares. According to you, the Plaintiff’s employment was terminated on 22/09/2020? I am not too sure but it was in September, 2020. So, prior to this date, you were not the Acting G. M of the Defendant? Correct. I was a Director of the Defendant. And for that extent, I was the boss of the Plaintiff. Q: Confirm to the court that by 3/9/2020, the Plaintiff was still at post of the A: Q: Defendant as the G. M of the Defendant? True. I think so. And as part of those terms, the Board asked the Senior Management at the time to take reduction in their salaries? A: Not hundred percent (100%) correct, because the Board, amongst other things tried facilitating the loan application for the Defendant from AgDevco, acted with the Senior Management to work with the junior and senior staff to rescind their negotiated salary increase under their collective bargaining agreement and also facilitated with the UMB bank to keep the overdraft operational line to stay afloat, negotiated long term credit line for fertilizer from Yara to the Defendant and also asked the Senior Management to propose a review of salaries. Q: It was the Plaintiff that was the head in discussing the Board’s request for Senior Management to make proposal for the reduction of Senior Management Team’s salaries on behalf of the Senior Management? A: Q: A: Q: A: Q: Correct but I think it was a review and not a reduction. Paragraph 23 of your witness statement says the Defendant … as to salary reduction of the Defendant”. Are these your words? Yes, my Lord. The senior managers’ proposal to the Board was that they remain on their salary levels and thus unwilling to take a reduction of their salaries? Not correct. The Plaintiff refused and refused to make any suggestion. The Plaintiff’s employment with the Defendant was terminated after he refused to be forced by the Board to take a reduction of his salary, I put it to you? A: Not correct. The Board can hire and fire and so the Board decided on the termination. The above cross-examination of Imoro Sulimana support the court’s observation of the witness as generally not credible, quite contradictory, and inconsistent and very much evasive in his answers to the court. For instance, the witness had used the words “reduction” in his witness statement. And yet, he sought to challenge Counsel of not using same. Again, per the Plaintiff and even DW1 (Nagel), the evidence is that the SMT counter offered to the Board of maintaining their salary levels instead of reducing same but which was rejected by the Board. (See the cross-examination of DW1 (Nagel) at pages 44 and 45 of the record of proceedings which practically contradict the evidence of Imoro Sulimana in diverse ways spreading from restructuring of the Defendant company, the policies, structures and finances and the negotiations of the reduction in salaries of the SMT, the negotiations of which were all led by the Plaintiff until the Defendant side stepped the SMT and dealt with members individually. With all of the above, I find that the witness was generally very economical with the truth thus rendering the Plaintiff’s case more probable than it is not. He was not so candid and sought during the cross-examination to justify whatever action he undertook including even usurping the powers of the Plaintiff as GM by sideling the Plaintiff and recruiting officers and signing an appointment letter without recourse or regard to the Plaintiff with the excuses that as a Director, he had the right to do so and could act in any such capacity and also had the right to hire and fire the Plaintiff. This “bossy” attitude of the witness coupled with his demeanor, lack of candour and contradictions as listed above in this judgment would be fatal to the Defendant’s case particularly when one considers the evidence and exhibits in the case. I therefore really and in all honesty, find the evidence of the Defendant on the termination as self-serving in the circumstances of this case and it is only calculated, albeit mala fide, to get rid of the Plaintiff without paying compensation by the arrangement embarked upon by the Defendant right from the acquisition of shares, restructuring the Board, Restructuring the Defendant’s policies, restructuring the Defendant’s organisational structures and finances. The court finds it quite difficult to be impressed with the assertion and claim of the Defendant that its termination of the Plaintiff’s appointment was within its right so to do. The Termination, was, in my very humble view and consideration mala fide, particularly per the evidence, the Exhibits; and pleadings and same must not be allowed to stand in the way of justice as in practice from the evidence, the Defendant actually and practically made the Plaintiff redundant whilst even at post. In my candid opinion, just as in the correspondence on the reduction of salaries of the SMT and led by the Plaintiff, with the Exhibits of W, X, Y, Z, AA, AA1, CC series, DD, EE series, 3, 4, 5, 6, 7, 8, 10, 11, 14, 16 all was effected so as to achieve a planned execution of the sole aim of getting rid of the Plaintiff from the Defendant’s company. This is in my view, is very bad. And, I find that all was effected so as to outwit the Plaintiff. I find that the Defendant, with the reconstituted Board found the Plaintiff so hard a nut to crack – hence the restructuring of the organisational structure to neutralise the Plaintiff by taking away his role and reducing his salary and making him accountable to the CEO, a position created to contain the Plaintiff. The position of the law is that he who asserts must prove same. Also, the law follows the common sense approach which means that the burden of providing all facts essential to any claim lies on the person who is making the claim. (See: a) Barkers Woode v. Nana Fita [2007 – 2008] 2 SCGLR 819 b) Abbey & ors v. Antwi [2010] SCGLR 17 c) Enekwa & ors v. KNUST [2009] 2 GLR 242. Therefore, on the issues, per the standard as set out by S. 11(1) and 12(2) of Act 323, and being further fortified by the cases of Zabrama v. Segbedzi [1991] 2 GLR 221 @ 46 per Kpegah JA, (A), Serwaah v. Kesse [1960] GLR 227 Holding 1 and Fenuku & anr v. John Tegah & anor [2001 – 2002] SCGLR 989 and the more recent case of Equity Assurance v. Palme Green Ent,. Ltd [2019] 134 GMJ, 57, CA. I am convinced that the Plaintiff has discharged the burden of proving the said evidence so as to find favour from the court. I also find from the evidence that technically and practically, the Plaintiff was made redundant even before the purported termination seeking to cover up and avoid paying redundancy package to the Plaintiff (See Exhibits EE and EH series on the work of Imoro Sulemana. In Avadzinu v. Njona [2010] MLRG 105 – 119 CA, the following is what was stated thus: “In assessing the balance of probabilities all the evidence be it that of the Plaintiff or Defendant must be considered and the party on whose favour the balance tilts is the person whose case is more probable of the rival version and is deserving of the favourable verdict.” Therefore, I hold that the Plaintiff must be given his redundancy package fairly and legally due him as under S. 65 of the Labour Act (Act 651). In sum, this court finds and holds as follows: 1. The Plaintiff as a GM of the Defendant’s company was a member of the SMT and not a member of the Senior Staff. 2. The conditions of service of the Defendant’s senior staff effective 1st January, 2018 was applicable senior staff and not senior management but portions of such document (as Exhibit BB) were always used and considered and maintained by members of the SMT by the evidence of the Plaintiff and DW1(Nagel), as the SMT did not have conditions of service. 3. The Defendant insisted and put maximum pressure on a reduction or diminution in the conditions of service (salaries) of the SMT, then headed by the Plaintiff as part of the restructuring exercise as it claimed to be in financial crisis and could not support the existing conditions of service of the SMT. 4. The Defendant embarked on an arrangement of its affairs after the acquisition of some of its shares by ATHL. 5. The termination of the Plaintiff’s appointment was effected mala fide and was therefore a redundancy and thus the Plaintiff is entitled to a redundancy package under S. 65 of Act 651. The Plaintiff therefore succeeds on his claim and I decide as follows: 1. A Declaration that the purported termination of the Plaintiff’s employment is for all purposes and in effect a redundancy masked as Termination. 2. I order the parties to as a matter of urgency and within 30 days from the date of this judgment enter into negotiations on the redundancy package, as per the precedent by the Defendant for its staff considering the benefits so far paid to the Plaintiff and pay the Plaintiff all monies due the Plaintiff per the precedent at the Defendant’s company. 3. I order interest on the redundancy package stated in (2) above from the date of this judgment until the final date of payment at the prevailing Bank rate. 4. I award costs of Gh¢40,000.00 to the Plaintiff as against the Defendant as I refuse to order the Defendant to pay the Plaintiff any other legal costs be it 20% or otherwise. SGD G. K GYAN-KONTOH (JUSTICE OF THE HIGH COURT) COUNSEL: 1. NUTIFAFA NUTSUPUI WITH JEMIMAH DEI FOR THE PLAINTIFF. 2. PRINCE BENSO MANKOTAM FOR ADELAIDE BENNE PREMPEH ESQ. FOR THE DEFENDANT. 50