ANDREW DAGARTI v. STATE GOLD MINING CORPORATION [1968] GLR 541

DIVISION: HIGH COURT, SEKONDI

DATE: 28 JUNE 1968

BEFORE: ARCHER J.

NATURE OF PROCEEDINGS

APPLICATION by the defendants to dismiss the plaintiff’s claim for damages under the Workmen’s Compensation Act, 1963 (Act 174). The facts are sufficiently stated in the ruling.

COUNSEL

J. Mercer for the plaintiff.

S. Baddoe, Assistant State Attorney, for the defendants.

JUDGMENT OF ARCHER J.

The plaintiff issued a writ of summons claiming N¢10,000.00 damages for injury to his right leg which was subsequently amputated as a result of the negligence of the defendants on 15 November 1965.

The defendants denied liability in their statement of defence and applied to the court under Order 25, rr. 2 and 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), to dismiss the plaintiffs’ action on the ground that the plaintiff had been paid compensation amounting to N¢807.77 under the agreement between the parties made on 23 March 1967 and that as the plaintiff did not take steps within three months as provided in section 15 (4) of the Workmen’s Compensation Act, 1963 (Act 174), to cancel the said agreement, he could not maintain the present action which is statute-barred. The defendants in support of their application, exhibited the agreement signed by the parties marked A at the bottom of which appears a certificate issued with the designation “District Labour Officer” on it to the effect that section 15 (3) of the Workmen’s Compensation Act, 1963 (Act 174), has been complied with.

The plaintiff in opposition to the defendants’ motion under Order 25 rr. 2 and 3, filed an affidavit in which he denied that he entered into an agreement on 23 March 1967 as alleged by the defendants. He maintained that on the day in question he was paid a sum of ¢807.77 when he was called to the labour officer at Tarkwa. He was given the money and was asked to put his thumbprint on a certain paper by a clerk. Before he made his thumbprint nobody [p.544] of [1968] GLR 541 had told him what the paper contained. He further swore that even it the contents were revealed to him, he did not understand because he did not understand Twi or English which the officers in the labour office spoke. He is a Dagarti and speaks that language but he was not accompanied by any Dagarti man who speaks Twi or English to the labour office when the money was paid. The plaintiff in his affidavit finally averred that when he made his thumbprint he was under an impression that he was giving a receipt for the amount paid to him and therefore the agreement dated 23 March 1967 cannot be his act and deed. After hearing the parties, I demanded further affidavits from the defendants. Three affidavits were filed subsequently. One of these additional affidavits was sworn to by one Awuni Frafra, a headman in charge of the gang to which the plaintiff belonged in the mining pit. Awuni Frafra disclosed that the plaintiff spoke and understood Twi thoroughly because as headman, Awuni Frafra gave the gangmen instructions in Twi owing to the different tribes to which the gangmen belonged, some being Fantes, and others Dagartis. However, this deponent was not present when the agreement was signed. The second additional affidavit was sworn to by the assistant labour officer of Tarkwa who furnished the certificates required by section 15 (3) of Act 174 and the third additional affidavit was sworn to by a clerical officer at the labour office who stated that he was present when the contents of the agreement were explained and the legal consequence made clear to the plaintiff. There was also filed another affidavit by a representative of the trades union to which the plaintiff belonged. On 1 April 1968, the plaintiff, through his solicitor, filed further submissions which were brought to my notice and which I have since read and considered before taking a decision in this application. I shall now consider the relevant statutory provisions of Act 174.

Section 15 (1)-(3) of the Workmen’s Compensation Act, 1963 (Act 174), as amended by the Workmen’s Compensation (Amendment) Act, 1965 (Act 295), s. 1 reads as follows:

“15. (1) The employer and workman may after the injury in respect of which the claim to compensation has arisen agree in writing as to the compensation to be paid by the employer. The agreement shall be in duplicate, one copy to be kept by the employer and one copy to be kept by the workman.

(2) The compensation agreed upon shall not be less than the amount payable under this Act.

(3) Where the workman is illiterate or is unable to read and understand writing in the language in which the agreement is expressed, the agreement—

[p.545] of [1968] GLR 541

(a) shall not be binding against him unless it is endorsed by a certificate of a Labour Officer to the effect that such Officer read over and explained to the workman the terms thereof and that the workman appeared fully to understand and approve of the agreement, and

(b) shall not operate to preclude the workman from instituting proceedings independently of this Act to recover damages in respect of the injury to which the agreement relates unless the certificate of the Labour Officer contains a statement to the effect that he explained to the workman that the making of the agreement would preclude him from instituting any such proceedings and that the workman appeared fully to understand and accept the legal position in that regard.” On the strength of the affidavits filed on behalf of the defendants and the certificate which appears below the agreement, my inclination would be towards a rejection of the plaintiff’s contention that the contents of the agreement were not interpreted to him in the Twi language. Nevertheless, it was submitted on behalf of the plaintiff that the officer who signed the statutory certificate and swore the affidavit was an assistant labour officer and not a labour officer as required by section 15 of the Act. For the defendants, it was brought to my notice that under section 10 (2) of the Interpretation Act, 1960 (C.A. 4), “Where an enactment confers power to do any act or thing all such powers shall be deemed to be also given as are reasonably necessary to enable that act or thing to be done or are incidental to the doing thereof.” Therefore, the assistant labour officer has power to issue the statutory certificate. With great respect I do not think that section 10 (2) of the Interpretation Act, 1960 (C.A. 4), assists the defendants. What I understand section 10 (2) to mean is that where power has been conferred on a person, then that person shall have powers to do all that is reasonably necessary to enable the primary or original power to be exercised. In my view, it does not mean that that person shall have power to delegate his power to another without express provision. He may solicit or rely on assistance in the discharge of his duties, [p.546] of [1968] GLR 541 but the power remains primarily with him. I have therefore decided to restrict myself to the definition laid down in the Workmen’s Compensation Act, 1963 (Act 174). Section 35 of that Act defines “Labour Officer” to mean “a person who is a labour officer for the purposes of the Labour Ordinance.” Section 2 of the Labour Ordinance, Cap. 89 (1951 Rev.), also defines “Labour Officer” to mean “any person appointed … to be Labour Officer, and includes the Commissioner of Labour, the Assistant

Commissioner of Labour and any officer authorised in writing by the Commissioner of Labour to exercise any of the duties or powers imposed or conferred by this Ordinance upon a Labour Officer.”

From the above definitions, it follows that before an assistant labour officer provides the statutory certificate under section 15 (3) of the Workmen’s Compensation Act, 1963 (Act 174), he must have been authorised in writing by the Commissioner of Labour to exercise the powers of a labour officer. So far no such written authority has been produced by the assistant labour officer. I am therefore most unwilling to apply the maxim omnia praesumuntur rite et solemniter esse acta. In any case the judgment of Lord Ellenborough in R. v. Verelst (1813) 3 Camp. 432 is a strong authority for treating this maxim as a rebuttable presumption of law. There is a difference between the designations “Labour Officer” and “Assistant Labour Officer”; and if an assistant labour officer purports to exercise powers expressly conferred on a labour officer by statute then he must prove that he has authority for exercising those powers. Unfortunately, section 2 of the Labour Ordinance, Cap. 89 (1951 Rev.), makes it clear that apart from a labour officer which expression includes the Commissioner of Labour and an Assistant Commissioner of Labour, any other person must be authorised in writing before he can exercise the powers of a labour officer. The definition stipulates that the authority must be in writing which means not oral or otherwise.

I have observed that “Labour Officer” is now defined in paragraph 74 of the Labour Decree, 1967 (N.L.C.D. 157), to mean “the Deputy Chief Labour Officer or any other Officer authorised in writing by the Chief Labour Officer to exercise any functions under this Decree.” The Labour Decree, 1967 (N.L.C.D. 157), has repealed the Labour Ordinance but the Labour Decree, 1967 (N.L.C.D. 157), did not come into force until 14 April 1967. The agreement, exhibit A, was executed on the 23 March 1967, that is before the Labour Decree came into force. The agreement is therefore to be considered in the [p.547] of [1968] GLR 541 light of the definition of labour officer as existed at the time, that is the Labour Ordinance, Cap. 89 (1951 Rev.).

I gave the defendants every opportunity to prove that the assistant labour officer had power to sign the certificate but the evidence they adduced was not satisfactory. An affidavit sworn to by the assistant labour officer himself to the effect that it is his duty to explain to injured workmen their legal rights is not sufficient evidence. The certificate required under section 15 (3) of the Workmen’s Compensation Act, 1963 (Act 174), is a statutory certificate and the statutory formalities to be observed to render the certificate valid must be stringently complied with. There was in this case no written authority produced to the court or even an affidavit by the chief labour officer to show that the assistant labour officer has been authorised to sign this statutory certificate. In the absence of such strict proof, I must reject the certificate. As the defendants have failed to establish that the certificate was signed by a labour officer, I rule that the agreement purported to have been thumbprinted by the plaintiff is not binding on him under section 15 (3) (a) and also the agreement cannot operate to preclude him from instituting the present proceedings by virtue of section 15 (3) (b) of the Workmen’s Compensation Act, 1963 (Act 174). The defendants’ motion under Order 25, rr. 2 and 3 is therefore dismissed. I have not found it necessary to consider section 15 (4) as to whether or not the plaintiff can cancel the agreement after the statutory period of three months because I have ruled that there is no valid statutory agreement as required by section 15 (3) before this court.

The plaintiff’s action will therefore proceed to trial.

DECISION

Application dismissed.

Action to proceed.

L. F. A.