IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA
Coram: J. B. Akamba, JA Presiding
K. A. Acquaye Justice of Appeal
C. J. Honyenuga Justice of Appeal
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27th MAY 2010
ANGLOGOLD ASHANTI LTD
DEFENDANT /APPELLANT
VS
GEORGE SIAW YEBOAH
PLAINTIFF/RESPONDENT
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JUDGMENT
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AKAMBA, J.A: The appellant, a mining company in Obuasi, Ghana has a subsidiary
company at Sugri in the Republic of Guinea. On 10th November 1994 the
respondent was employed by the erstwhile Cluff Mining Company which was later
acquired by the appellant and described as its Ayanfuri mine near Obuasi Ghana.
In 1996 the appellant transferred the respondent to its Sugri mine in Guinea.
Respondent was recalled to Ghana in 2005 to continue his employment in Obuasi
and remained as such employee till November 2006 when he together with other
workers was declared redundant. His terminal benefits were calculated and paid
to him. The respondent however disputed the basis for calculating his terminal
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benefit as the same failed to take into account the period he worked as an
expatriate in the Republic of Guinea. The respondent drew the attention of the
appellant to the apparent miscalculation of his entitlements but this view was not
shared by the appellant. Following the stalemate the respondent initiated an
action at the Automated High Court Accra to claim what he perceived as due him.
The High court entered judgment in favour of the respondent hence this appeal.
In this appeal three grounds were formulated for determination by this court.
These are that:
(i)
(ii)
(iii)
The learned trial judge erred in holding that the calculation of the
plaintiff’s entitlements must include an amount for the period while he
was engaged abroad.
The trial judge erred in holding that the plaintiff who was re-engaged on
his return from abroad qualified as a category A or B employee.
The learned trial judge misconstrued the legal clauses 4.2.1, 4.2.2 or
4.2.4, as applying to the plaintiff.
The resolution of this appeal just as the initial action before the trial High court
hinges upon the true or proper interpretation of the scope of operation of exhibit
A. In doing so it is important to state that exhibit A should be considered as a
whole to be appreciated. This conforms to a basic rule of construction of
documents that a document must be read as a whole in order to ascertain the
intentions of the maker and thus give effect to and effectuate the true intentions.
This court in the case of Boateng v Volta Aluminium Co. Ltd (1984-86) GLRD 85
approved the indelible dictum of Huddleston B in Wigsell v Corporation of School
for Indigent Blind (1880) 43 LT 218 in the following words:
“ In construing covenants, the fulfillment of the evident intention and meaning of
the parties to them must be looked at, not confining oneself within the narrow
limits of a literal interpretation; but taking more liberal and extended view, and
contemplating at once the whole scope and object of the deed in which they are
contained.”
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In that case the employment of the appellant, a production supervisor was
terminated on being given a month’s salary in lieu of notice. He claimed that the
termination was unlawful as it contravened clause 3 of the conditions of his
service which required that termination be subject only to the giving of ‘a notice
of one month.’ Termination in lieu of notice was not provided for. He therefore by
an originating summons sought an interpretation of the clause which provided
that “involuntary termination of employment for cause shall require a month’s
notice to the terminated supervisor.” The High Court ruled that clause 3 of the
conditions of service implied that the employment could be terminated on
payment of salary in lieu of notice and therefore the termination of the
employment consequent upon payment of salary was not unlawful. On appeal
against that interpretation, this Court in dismissing the appeal held that in
construing clause 3 regard should be given to all four clauses in the agreement
dealing with termination, the language used and all the provisions in the
termination clauses should be looked at as a whole and every clause must be
compared with the other and an entire sense made out of them with a view to
discovering the true meaning and intentions of the parties.
This basic approach was also rightly adopted by Abban J (as he then was) in the
case of Manu vs Emeruwa (1971) 1 GLR 442 for which I endorse and approve. In
that case the plaintiff borrowed money from the defendant for three weeks for
which he deposited his car together with all the documents on the car with the
defendant as security. The terms of the transaction were embodied in a written
document signed by both parties who were illiterates. The car was subsequently
damaged by the defendant’s son when he was learning to drive with it. The
plaintiff sued for damages for the use or misuse of his car. The issue turned on
whether the transaction as embodied in the written agreement was a pledge or a
mortgage. The court in determining that issue held that the written document
must be read as a whole, that is to say that it must consider certain apparently
ambiguous words such as “absolute assignment”, “covenant” and “absolutely” as
well as clause 2 of the document which stated that the defendant was to keep the
vehicle but to return it to the plaintiff on repayment of the loan. The court per
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Abban J (as he then was) held that the transaction in the circumstances of the
case constituted a pledge. This is what he said:
“In cases of this kind, all the terms of the document must be looked at and
whatever may be the phraseology adopted or used in some particular part of the
document, if on the consideration of the whole document there are grounds
appearing on the face of the document affording proof of the real intention of the
parties, then that intention ought to prevail against the obvious and ordinary
meaning of those words.”
The court at page 446 also relied on the following dictum of Lord Willes C.J. in the
case of Smith v Packhurst (1714) 26 ER 881 at 881-882: “Another maxim is, that
such a construction should be made of the words of a deed, as is most agreeable
to the intention of the grantor, the words are not the principal things in a deed,
but the intent and design of the grantor; we have no power indeed to alter the
words or to insert words which are not in the deed, but we may and ought to
construe the words in a manner the most agreeable to the meaning of the
grantor, and may reject any words that are merely insensible…the art of
construing words in such a manner as shall destroy the intent may shew the
ingenuity of counsel, but is very ill becoming a judge.”
Bearing the above cited decisions in mind I will deal with the three grounds of
appeal together to ascertain the extent of coverage of the exhibit A which is at
the centre of this dispute. Exhibit A begins by stating what it is: a “Corporate
Policy on transfer/secondment”. It then states its purpose which is to the effect
that: “This policy sets out the principles governing the transfer and /or
secondment of employees from one location to another on either permanent or
temporary basis.” It is not in dispute that the policy (exhibit A) covered the
respondent since he was at the time a senior staff. It is also not disputed that
whilst the respondent was on transfer to the Sugri mines in Guinea he was
accorded an expatriate status for which he drew the appropriate foreign incentive
and hardship allowances for the period together with the others stated in exhibit
A such as his basic salary in his home country (Ghana) after deductions of
provident fund and social security contributions. The crucial question is what
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provisions are available upon the determination of an employee’s employment? It
is clear to me that when Exhibit A is read as a whole that it covers the period,
among others, when employees are on transfer or on secondment from their
parent mine to other mines or locations and also those who while on such
transfer or secondment their contractual relationship with the appellants
terminates or comes to an end. For instance item 4.2.2 of exhibit A provides for
category A employees who are those employees who while on transfer will
continue to be paid their basic salary in their home country and in addition
receive foreign incentive and hardship allowances. Other terms and conditions of
this category employees on transfer include (g) which provides for what happens
when “for any reason, for e.g. closure of mine, downsizing etc., the services of an
employee who has been transferred for developmental purposes are not required
at the end of the transfer period, the employee will be paid his Provident Fund and
the relevant Redundancy package and also be given his social security
contribution statement.” It is obvious that this category of employees are those
who were transferred or seconded to other locations with the obvious impression
that they would return to their home company to continue to work but for such
unforeseen circumstances such as the closure of the mine, downsizing etc. In
other words this category of employees would ordinarily return to continue work
in their home mine but for some unforeseen circumstances. Such employees
were those provided under g supra.
Item 4.2.3 deals with Category B employees who are those employees transferred
to other countries with the understanding that they would not be required to
return to work in their home country at the end of the contract.
Obviously for the respondent to qualify as a Category A employee his contract
should have ended after taking his last leave in Guinea. This not being the case
and with him agreeing to transfer back to Ghana to continue to work for the
appellant he cannot claim reliance on provision 4.2.2. The respondent did not
demonstrate that he was a category B employee who was made aware from the
onset that he would not be required to return to Ghana after his tour on
secondment. That aside, there is nothing also in exhibit A to suggest that this
policy would continue to govern an employee who having once been governed by
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it would continue to be so governed even on his return to work in his home
country (Ghana).
It would be noted that it was the respondent who as plaintiff asserted that by the
provisions of exhibit A, calculations of his end of term benefits were governed by
same. He failed to show that exhibit A operated beyond his period of work in
Guinea. Section 14 of the Evidence Act 323 places the burden of persuasion on
the party asserting the existence of a fact essential to the claim or defence.
Section 17 of the Act (Act 323) explains the burden further thus:
“17. Except as otherwise provided by law,
a) The burden of producing evidence of a particular fact is on the party against
whom a finding on that fact would be required in the absence of further
proof;
b) The burden of producing evidence of a particular fact is initially on the party
with the burden of persuasion as to that fact.”
In the suit at the trial court this burden was squarely placed on the respondent as
plaintiff but he failed to discharge it.
The respondent worked for a total period of twelve years from November 1994 to
2006. As per exhibit 2 his redundancy package was calculated to cover the 12 year
period. The package also included what is termed a golden handshake to which
he was entitled. As plaintiff in the lower court the respondent did not show as he
asserted, by what criterion he desired his end of term or redundancy package
ought to be calculated other than what the appellants have meticulously set out
for him. He placed heavy premium on exhibit A which ended when he rejoined his
parent company in Ghana. The appellants have amply demonstrated that the trial
judge’s heavy reliance on exhibit A to order a new calculation was not warranted.
The evidence rather supports the conclusion that the calculation of the
respondent’s terminal benefits as shown in exhibit 2 was justified. I will allow the
appeal and set aside the judgment of the court below which I hereby do. Cost of
GH¢500.00 for the Appellants
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J.B.Akamba
Justice of Appeal
I agree.
K.A. Acquaye
Justice of Appeal.
I also agree.
C.J Honyenuga.
Justice of Appeal
COUNSEL
1. Mr. Nartey Tettey for Appellants
2. Mr. James Agbedor for Respondents
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