Adzimah and Another v Antrak Air Ghana Limited (IL/0051/2022) [2025] GHAHC 84 (20 March 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, INDUSTRIAL AND LABOUR DIVISION 2 HELD IN ACCRA ON THURSDAY THE 20TH DAY OF MARCH 2025 BEFORE HER LADYSHIP JUSTICE ANANDA J. AIKINS (MRS) JUSTICE OF THE HIGH COURT. SUIT NO. IL/0051/2022 PLAINTIFF 1. STEPHEN A. ADZIMAH H/NO. GL-066-6421 TSE-ADDO, ACCRA 2. SELASSIE M. K ANYOMITSE H/NO. 9 ENGAA STREET LAPAZ, ACCRA VRS ANTRAK AIR GHANA LIMITED CT693 SECHI STREETS AIRPORT RESIDENTIAL AREA, ACCRA DEFENDANT COUNSEL FOR THE PLAINTIFFS: WAYOE GHANAMANNTI ESQ. COUNSEL FOR THE DEFENDANTS: JUDGMENT INTRODUCTION The forty-eight plaintiffs in an original suit filed in March, 2022 sued three defendants for certain reliefs endorsed on their writ. They later amended the writ of summons and statement of claim on the 28th October, 2022 and sought the following reliefs against the said defendants: a) An order compelling defendants to pay each plaintiff’s outstanding salaries and T and T allowances as presented in paragraph 15 of the statement of claim, summing up to GH¢2,065,933.62 b) Interest on the above outstanding grand total of GH¢2,065,933.62 from June, 2015 until date of final payment. c) Cost including lawyer’s fees. d) Any other relief(s) this honourable court may deem fit. The defendants entered conditional appearance on 27th May,2022 after which there were a number of intervening applications which culminated in an order of the court disjoining the 2nd an 3rd defendants from the suit on the 21st of July, 2023 for the reason that the said and 3rd defendants were not the employers of the plaintiffs. The court did not make any order for the further amendment of the amendment of the misjoinder of the 2nd and 3rd defendants and the counsel for the plaintiffs also did not see the need to further amend the amended writ of summons and amended statement of claim. ISSUES FOR TRIAL On the 20th of May, 2024, the plaintiffs filed their issues for trial which were adopted by the court for determination. The issues were as follows:- a) Whether or not on 10th June, 2015 the defendant company sent an official memo to all staff indicating a three month suspension for operations, and of which office work will resume after the said period? b) Whether or not the defendant company disengaged the plaintiffs for their employment after the said three month suspension period in paragraph (a) above? c) Whether or not plaintiffs are still employees of Defendant Company until they are lawfully disengaged from their employment, and are thus entitled to their lawful salaries and company benefits till date? d) Any other matter arising at the hearing of the application. CASE OF PLAINTIFFS The case of the plaintiffs as can be gleaned from their pleadings in their amended statement of claim filed on 28th October, 2022 and witness statement is that all plaintiffs are employees of the 1st defendant company which they described as a domestic airline operating in Ghana’s aviation industry. They claimed they were employed at various times by the first defendant. They also claimed that they worked for the 1st defendant as staff in its various sections or departments till the 10th of June, 2015, when the 1st defendant circulated an official memo to the staff, notifying them of a three month suspension of the operations of the 1st defendant. The plaintiffs further claimed that the said circular also indicated or hinted of a re-organisation of the 1st defendant’s operations after the resumption of work. It was also the plaintiffs’ case that the 1st defendant never resumed its operations as indicated in its notice (exhibit A) which was attached to the witness statement of the 2nd plaintiff and that the salaries off the plaintiffs were also never paid. The plaintiffs also stated that they lodged a complaint with the National Labour Commission (NLC) but all to no avail hence their resort to this court for the reliefs endorsed on their writ of summons and statement of claim. It was their position that they had not being paid their salaries and other related entitlements from the 10th of June, 2015 till date and therefore requested the court for an order directing he defendant to pay same with interest and cost. CASE OF DEFENDANT The case of the defendant as can be gleamed from its statement of defence filed on 25th August, 2023, is that the plaintiffs are its former employees. The defendant described itself as a defunct company and stated that it had long ceased operations in the aviation industry since the year 2015. The defendant described the plaintiffs’ demands for salaries and allowances for a period of 78 months as shocking because it had ceased operations since June, 2015 and that none of the plaintiffs stepped into the offices of the defendant since the said June, 2015 when the company ceased operations. The defendant was of the view that the plaintiffs were not entitled to the reliefs they sought and that the claims made by the plaintiffs should be dismissed by the court. The defendant did not file a witness statement in this matter, neither did it appear in court for the trial even though hearing notices were served on it. It also failed to appear in court to conduct cross examination on the evidence led by the plaintiffs. It should be placed on record that the counsel for the defendant withdrew from the matter before the hearing begun and the defendant did not engage any other counsel thereafter. In fact the defendant, after the withdrawal of its counsel, did not appear in court for the trial despite the service of hearing notices on it. DETERMINATION OF ISSUES The evidence as led by the plaintiffs show per the exhibit A, that the defendant suspended its operations on 10th June, 2015 with a promise to restructure its business after the 3 months suspension period to meet the demands of a rapidly changing and competitive environment. It appears that the defendant never resumed its business operations again because the plaintiffs, have never been recalled to work and it appears they have also not been paid any salaries since the suspension of the operations of the defendant in the year 2015. Indeed a careful read of exhibit A reveals that the intention of the defendant company was to restructure its business after the three month suspension of its operations, however the evidence on record is clear that there has never been a resumption of the defendant’s business and the plaintiffs have, as a result, not worked for the defendant since the suspension of its business operations in June, 2015. The plaintiffs claimed they lodged a complaint with the Labour Commission about the conduct of the defendant company but nothing came out of that complaint because they were still not paid their lawful salaries and benefits. This court is thus inclined to believe that the inability of the defendant company to resume its operations could most likely be attributed to lack of funds to run its business. The pleadings and evidence of the plaintiffs show that they are each demanding a payment of salaries for 78 months or six and a half years. They acknowledged that the defendant company had not been in operations for the said period therefore it would be imprudent for this court to make any order directing the defendant to make payment of salaries to plaintiffs for no work done. However since by virtue of the fact that the defendant never resumed operations after the 10th of June 2015, when it suspended its operations, it can be said or inferred that the defendant had brought the employment contract between it and the plaintiffs (its employees) to an abrupt end without recourse to the law. Section 17 (1) of the Labour Act of 2003, (Act 651) provides for the termination of employment. In the case of a contract of employment of three years or more, one month’s notice or one month pay in lieu of notice is prescribed. In respect of a contract of less than three years, two weeks notice or two weeks pay in lieu of notice will suffice and with regard to a contract which is from week to week, seven days notice or seven days pay in lieu of notice is sufficient. The subsection 3 of the same section 17 also provides that a notice of termination ought to be in writing. This provision of the law was not followed by the defendant. The defendant failed to recall the plaintiffs to work and it also did not resume operations. At least there is no evidence or record that the defendant company has resumed its business. It is thus the opinion of this court that the defendant ought to have taken steps to bring the employment contract between it and the plaintiffs to an end in the proper manner by serving them the requisite notice as provided for by law or paying them the requisite amount in lieu of notice. The plaintiffs are therefore entitled to be paid a month’s salary in lieu of notice for the abrupt termination of their employment contract by the defendant. They are also entitled to be paid their salaries for the three months period that the defendant’s business was under suspension. The court therefore enters judgment in favour of the plaintiffs against the defendant as follows: 1) Each plaintiff is entitled to his/her 3 months pay and allowances for the period of suspension if same was not paid by the defendant. This three month period is from 10th June, 2015 to 10th September, 2015. Each plaintiff is also to be paid a month’s salary in lieu of notice for the abrupt termination of their contract of employment. Interest at the applicable BOG rate is to be calculated on these sums from 2) 3) September 2015 till December 2015 4) The court also awards cost of three thousand Ghana Cedis (GH¢3,000) each in favour of each plaintiff. (SGD.) JUSTICE ANANDA J. AIKINS (MRS.) JUSTICE OF THE HIGH COURT *c.a.a* 7