IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF
JUSTICE KUMASI, GHANA HELD ON MONDAY THE 7th DAY OF JULY
2025, BEFORE HIS LORDSHIP JUSTICE DR. POKU ADUSEI COURT OF
APPEAL JUDGE, SITTING AS AN ADDITIONAL HIGH COURT JUDGE
SUIT NO. C12/63/23
PLAINTIFFS
DEFENDANTS
PETER ESHUN & 499 OTHERS V. ANGLOGOLD ASHANTI (GHANA) LI D
JUDGMENT
Dr. Poku Adusei, J.A.
The plaintiffs, as former employees of the defendant, took out an amended writ of summons/statement of claim against the defendant on 11th June 2024 seeking the following reliefs:
a. Declaration that the negotiated agreement collectively entered into between the defendant and the plaintiffs’ Labour Union that had 30th September 2013 as the date for commencement of the said retrenchment is valid, binding etc.
b. Declaration that the defendant is bound by the agreement collectively negotiated and executed from September 2013 to November 2014.
c. Declaration that plaintiffs arc entitled to their full redundancy and/or retrenchment packages declared by the defendant.
d. An order directing the defendant to pay to the plaintiffs the full entitled redundancy and/or retrenchment packages declared by the company in the negotiated agreement having 30th September 2013 as the date to commence the retrenchment exercise.
e. Interest on the said amount from the date due to the date of final payment.
f. Legal fees for prosecuting the suit.
g. Any other relief(s) this Honorable Court may deem it. OR IN THE ALTERNATIVE
a. A declaration that the redundancy exercise undertaken by the defendant was null and void and not in accordance with law.
b. A declaration that the plaintiffs by law are still validly employed by the defendant.
c. An order directed at the defendant to pay all outstanding salaries accrued to the plaintiffs
On the background facts, the dispute between the parties arose from retrenchment exercises undertaken by the defendant from September 2013 to November 2014. By the provisions of section 65(1) of the Labour Act, 2003 (Act 651), such redundancies and terminations of employment may occur when an employer contemplates the introduction of major changes in the production, programme, organisation, structure or technology of an undertaking. In such situations, the amount of redundancy payments and the terms and conditions of payment are matters which are subject to negotiations between the employer on the one hand and the worker or trade union concerned on the other. Sec section 65(4) of Act 651; Amoako v. Standard Chartered Bank [2013-2015 ] 2 GLR 377; Baiden & Ors v. Graphic Corporation [2007] 11 MLRG 33 SC; Agyabeng v. SSB Bank (Ghana) Ltd [2011] 40 GMJ 40 CA
According to the plaintiffs, the impugned retrenchment exercises resulted in the termination of their employment contracts, for which they were entitled to be paid rcdundancy/scverance packages by the defendant. Even though the plaintiffs have admitted receiving some termination-payments from the defendant, they contended that their claims for ‘special compensation package’ from the defendant have fallen on deaf cars, hence the instant action.
The defendant entered appearance to the plaintiffs’ suit through their lawyers, and filed a statement of defence to the action. For the defendant, it undertook re-structuring operations which required the retrenchment of the plaintiffs from its employment. The defendant averred that it engaged both the Labour Department and the workers’ representative, namely, Ghana Mineworkers Union (GMWU), on the modalities for the retrenchment exercises it undertook. It asserted that all the entitlements due the plaintiffs have been settled and that the plaintiffs were estopped from further litigating the matter. The defendant further averred that the plaintiffs cause of action, which accrued between September 2013 and November 2014, was barred by statute of limitation.
The plaintiffs joined issues with the defendants, and at the directions stage, the following issues were set down for determination by the court:
(a) Whether or not the plaintiffs are entitled to the reliefs which they are seeking.
(b) Whether or not the present action is an abuse of the legal process.
(c) Whether or not several attempts were made to iron out the differences between the plaintiff and the defendants and all those attempts proved unsuccessful.
(d) Whether or not it was the recalcitrance of the plaintiffs or the defendant which made such several attempts unsuccessful.
(e) Whether or not Lawyer Kwame Amankwah-Twum has ever on the instructions of the defendant written a letter to the National Labour Commission.
(f) Whether or not the retrenchment of the plainti ff was in line with law and labour regulations.
(g) Whether or not by operation of law there was a laid down procedure for the termination of plaintiffs’ employment.
(h) Any other issues arising out of the pleadings.
The defendant filed the following additional issue for determination in the case:
1. Whether or not the plaintiffs ’ action is statute barred.
2. Whether or not the plaintiffs are estopped from commencing and maintaining the instant action.
3. Whether the instant action was commenced with the consent and authority of the 4th to 500th plaintiffs.
Determining preliminary matters of limitation of action and abuse of court process
From the pleadings and the issued set down for trial in this case, the contentions about limitation of action and abuse of the court process raised by the parties must be considered first before proceeding to a merit consideration of the other issues raised in the suit. The plaintiffs’ issue (b) raised the question of abuse of the court process, whereas the defendant’s additional issue (1) raised the defence of limitation of action, which matters would be determined first.
It is trite learning that in litigations before the courts, when matters such as limitation of action and abuse of the court process are raised in the pleadings against the sustainability of any legal action, the courts owe it a duty to determine such matters first. This is especially so when such objections are clearly pleaded and the objections arc supported by evidence before the court.
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In the ease of Anglogold Ashanti Ghana Ltd v AGA 2006 Early Retirees Association [J4/16/2022]; [2022] 177 GMJ 41, the Supreme Court, speaking through Torkornoo JSC (as she then was), held that:
“It is firm principle of law that where a fundamental legal issue such as jurisdiction, capacity or application of limitations has been raised against the sustainability of any legal action, a court is bound to resolve that issue first. A finding that a fundamental legal bar to prosecution exists will disenable the court from considering the merits of the substantive dispute.”
The broad public policy rationale for the courts to prevent abuse of its processes was articulated in the case of Osei-Ansong & Passion International School v. Ghana Airport Co. Ltd [2013-2014] 1 SCGLR 25. Here, the Supreme Court, speaking through Adinyira JSC, held as follows:
“The doctrine of abuse of process commonly referred to as the rule in Henderson v. Henderson (1843) Hare 100 required the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject to any appeal) once and for all. In the absence of special circumstances, the parties could not return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule was not based on the doctrine of res judicata in a narrow sense, or even on any strict doctrine of issue or cause of action estoppel. It was a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do.”
Sec also Naos Holding Inc v. Commercial Bank Ltd [2011] 1 SCGLR 492; Sasu v. Amua-Sekyi and Anor [2003-2004] SCGLR 742
In the instant case, the full trial of the case commenced on 3 rd April 2025 and concluded on 4th April 2025. The evidence led by the parties have illuminated their respective positions on the matters in dispute. Consequently, this Court, being armed with ample evidence by the parties, would ascertain whether the instant action was barred by statute and/or whether the court should summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. See Ghana Telecom Co. Ltd (Vodafone Ghana Telecom) v. Kabalink Ltd [2013-2015] 2 GLR 567 holding 4; Republic v. High Court (Land Division), Accra; Ex parte Lands Commission (Nungua Stool and Others – Interested Parties) [2013-2014] 2 SCGLR 1215.
GHANA JUDICIA
JIUS
GHANA Jilt
Claims of limitation of action
The first objection raised in the pleadings was whether the instant action filed nine (9) years after the defendant concluded the impugned retrenchment exercises should be countenanced by the court. For the defendant, the crux of the instant action by the plaintiffs was to challenge its retrenchment exercises concluded between September 2013 and November 2014, for which the employment contracts of the plaintiffs were terminated. In the opinion of the defendant, the instant action originally commenced by the Plaintiffs on 6th April 2023, and for which leave was granted for an amended writ of summons filed on 11th June 2024, was barred by statute of limitation.
The substance of the reliefs being sought by the plaintiffs were to enforce “the agreement collectively negotiated and executed from September 2013 to November 2014.” This claim was supported by paragraph 18 of the plaintiffs’ amended statement of claim which stated that:
“18. The plaintiffs aver that, at all times material to the present suit, the plaintiffs’ termination agreement with defendant was religiously guided and delimited by the agreement collectively negotiated and concluded having 30th September 2013 as the date for commencement of the retrenchment referred to in paragraph 17 (supra), which was assented to by both parties.”
In its statement of defence, the defendant averred that:
“18. Defendant contends that the instant claim of the plaintiffs having accrued in 2013 or even 2014, same is statute barred vide the provisions of the Limitation Act, NRCD 54.”
At the trial of the case, the plaintiffs’ witness – Alex Frimpong – testified thus:
“2. The defendant purportedly retrenched us from September 2013 to November 2014. This means that some of the members were informally retrenched in 2013 and others in 2014.1 wish to tender in evidence my retrenchment letter dated May 21, 2014, Exhibit A.”
“4. However, it is our contention that the defendant did not comply with the laid down rules for the workers that were purportedly retrenched from 30th September 2013 to the end of November 2014. There was no agreement between the defendant and the plaintiffs before undertaking the retrenchment exercise.”
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“15. Therefore, I sought to know how the MOU signed on 15/9/2014 be used to retrench me who had been retrenched as far back as 21st May 2014.1 received no response from the defendant and the session abruptly came to an end.”
“17. The whole impasse between the defendant and us solely boils down on the fact that it commenced the supposed retrenchment on 30th September 2013 and that agreement is what we are contending should be made known to us but it has failed and/or refused to do so”
“19. However, Sam Ilayford, Amadu Banda, Emmanuel Amankwah, Isaac Essuman, Stephen Nyame and Samuel Adjei were all retrenched from the period of 30lh September 2013 to December 2013 and I wish to tender and mark their retrenchment letters as exhibits Ml, M2, M3, M4, M5 and M6 respectively.”
In cross-examination of the plaintiffs’ witness on 3rd April 2025 by counsel for the defendant, the following ensued:
“Q: The collective agreement was signed by both the defendant and the Ghana Mine Workers Union. Is that correct?
A: My lord that is correct. The CBA was used to regulate the affairs of the
defendant and its staff.
Q: This CBA had express provision on redundancy. Is that correct?
A: My lord that is correct. But when the management issued our redundancy
letters to us, they told us that they were going to put the mine on a snooze mode for care and maintenance; that is shutting the mine partially for care and maintenance within 24 months. So they said the provisions in the CBA would be given to us to go home and that when they resume full operations they will recall us to come back to work. They issued redundancy letters to us and they commenced the retrenchment from 30/09/2013. Now the defendant is saying that they started the retrenchment exercise on 28/08/2013.”
In further cross-examination of the plaintiffs’ witness on 4lh April 2025, he testified as follows:
“Q: Arc you aware that all the retrenchment exercises from September 2013 to November 2014 were regulated by both the collective agreement and Memorandum of Understanding (MOU)?
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My lord I am aware of the CBA and the MOU dated 15/09/2014.
A:
Q: I am putting it to you that the retrenchment exercises carried out from
September 2013 to November 2014, were all regulated by both the CBA and the various MOUs.
A: My lord that is incorrect. We are saying that the retrenchment exercises
started from 30/09/2013. And the defendant is saying that it started on 28/08/2013.
Q: The redundancy exercise from September 2013 covered a period of three months: September, October and November of 2013.
A: My lord that is incorrect. The defendant’s former Senior HR Vice President
in the person of Steve Rickman admitted at the Obuasi Circuit Court in exhibit Q that they retrenched 430 workers from 30/09/2013 to the end of December 2013.”
The defendant’s witness – Percy Baidoo – also testified on 4th April 2025 in support of their defence on limitation of action thus:
“2. I know the plaintiffs in this matter. They are all ex-employees of the defendant whose appointments were terminated pursuant to the retrenchment exercise carried out by the defendant sometime between the years 2013-2014.”
“3. In view of peculiar operational challenges that were being experienced by the defendant, and the need to restructure the operations of the defendant, it was decided initially that some employees of the defendant would be retrenched and/or declared redundant. This redundancy exercise was to be carried out or executed in phases and was so done between 2013-2014 until in September 2014, when the remaining entire workforce of the defendant were affected by the said redundancy exercise.”
When the plaintiffs’ counsel took his turn to cross-examine the defendant’s witness on 4lh April 2025, the parties showed unison about the period of the impugned retrenchment exercises:
“Q: Can you tell this court when the retrenchment of the plaintiffs began?
A: My lord the retrenchment of the plaintiffs began in September 2013.
Q: When was the MOU preceding the retrenchment in September 2013 signed?
A: My lord it was signed on 28/08/2013.
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Q: So you will agree with me that the records of the defendant will show that
the retrenchment commenced on 30/09/2013
A: That is not correct my lord.
Q: How many workers have been retrenched per your records in the exercise
between September 2013 and November 2014?
A: My lord the number is 4385
Q: Are you aware that the former HR Vice President of the Defendant at the
time of the trial of PW1 at the Circuit Court, Obuasi stated that 6500 people had been retrenched?
A: My lord I am not aware.
Q: I am finally putting it to you that 6500 people were retrenched in September
2013 to November 2014 period, and that your 4385 number is not accurate.
A: My lord that is not correct.”
From the pleadings and the evidence reproduced supra, there was no dispute about the timelines within which the impugned retrenchment exercises were undertaken by the defendant. The retrenchment exercises took places from September 2013 to November 2014. Indeed, the plaintiffs’ retrenchment letters/severance pay-slips (i.e., exhibit ‘A’, exhibits ‘B2’ – ‘B10’, and exhibits ‘Ml’ – ‘MlO’) confirmed that the retrenchment of the plaintiffs were undertaken between the period of September 2013 and November 2014, such that all the plaintiffs herein had their employment contracts terminated by the defendant on or before November 2014. The plaintiffs’ exhibit ‘N’ also confirmed beyond doubt that that the plaintiffs fully knew the date for the commencement and conclusion of their employment terminations. The logical sequel to this was that the plaintiffs’ cause of action accrued from September 2013 to November 2014 ceteris paribus.
In support of its objection, counsel for the defendant invoked the provisions of section 4(l)(b)(e) of the Limitation Act, 1972 (NRCD 54) and contended that the plaintiffs’ action commenced after six years must be dismissed. The said section 4(l)(b)(c) of NRCD 54 provides that:
“a person shall not bring an action after the expiration of six years from the date on which the cause of action accrued, in the case of…an action founded on a simple contract; or an action founded on a quasi-contract.”
Counsel for the defendant further submitted that the only instances for which the six-year limitation period could be extended under the law on limitation of action were:
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where the cause of action was concealed by fraud or mistake perpetrated by the defendant or its agent on the plaintiffs, by virtue of section 22 of NRCD 54. Other mentioned instances for which the limitation period may not run against a claimant included situations where that claimant was under a disability such as infancy or of unsound mind (section 16 of NRCD 54), or where the limitation period was extended by the acknowledgment of liability in writing by the defendant (sections 17-18 of NRCD 54), or where there was fresh accrual of cause of action by virtue of part payment or payment made by the defendant (section 19-20 of NRCD 54).
The above submission on limitation of action was resisted by the plaintiffs. Their counsel contended that the plaintiffs first commenced an action in 2017 at the Labour Commission, and upon their dissatisfaction, resorted to the law court in 2023. The rendition by counsel for the plaintiffs at page 5 of his written address was that:
“It is our view that the plaintiffs’ action is not statute-barred. The plaintiffs commenced their action on the 18th August 2017, exactly 2 years and 9 months after the purported retrenchment that the defendant carried out, which ended in November 2014. Exhibits E, G, H, J and K3 bear credence to the fact that the plaintiffs resorted to the Labour Commission as a first instance and, upon their dissatisfaction, resorted to the law courts. Section 138 of the Labour Act, 2003 sets up the Labour Commission and empowers it to hear and attempt settlement of dispute relative to labour. It is therefore untenable that the action is statute-barred. It was not until the plaintiffs were dissatisfied with the outcome of the matter at the Labour Commission that the present action was instituted.”
For the plaintiffs’ counsel, the period of five years that the plaintiffs expended in seeking resolution to their grievances at the Labour Commission should not count against them in reckoning the limitation period under the law.
It should be underscored that efforts made by the plaintiffs at the Labour Commission could not operate as part of the exceptions created under NRCD 54 for which the limitation period could be extended. Put succinctly, the limitation period in the law for the plaintiffs to enforce any breach of their employment contracts could not be suspended by resort to another dispute resolution forum provided for under the Labour Act, 2003 (Act 651). It was for that reason that the Labour Commission in the conduct of its proceedings have been given the same powers and enjoy the same privileges and immunities as the High Court. Therefore, a challenge to a decision, order or direction of the Labour Commission invariably ends up at the Court of Appeal. See sections 133(4), 134, 139(3) and 167(2) of Act 651; Labour Commission v. Crocodile Matchct [2011] 38 GMJ 16 SC.
In pari, materia with the streams of the common law and equity, the judicial processes at the Labour Commission and that of High Court do not mix; they run side by side to each other, save in situations where the supervisory jurisdiction of the High Court was
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invoked by way of judicial review application. The instant case, being a fresh action in the High Court commenced nine (9) years after the retrenchment exercises, for which the plaintiffs’ employment contracts were terminated, was amenable to the provisions in the statute of limitation, subject to the express exceptions in the law. See Messrs Van Kirksey & Associates v. Adjeso & Others [2013-2015] 1 GLR 24 holding 1; Shittu Wabi & Others v. Inspector General of Police & Another [2013-2015] 2 GLR 484
Allegations of fraud as exception
In the pleadings, the plaintiffs levelled allegations of fraud against the defendant in the latter’s handling of its retrenchment exercises which culminated in the termination of their appointments. The pith of the allegations as captured in the amended statement of claim of the plaintiffs was that:
“25. The plaintiff say that the defendant has perpetuated fraud on them and also being dishonest with them with the tacit and staunch support of the Labour Commission.
PARTICULARS OF FRAUD
“i. agreeing to pay severance award or packages fully for the plaintiffs but later conniving with the Labour Commission to indulge in double standards by refusing to honour their undertakings.
ii. The letters written to the plaintiffs dated 17th August 2017, 9th August 2018, 2nd January 2019 and 14th January 2019 clearly and intentionally indicated that the said retrenchment was fraudulent, deceptive and dishonestly tricky.
iii. The defendant, the then Chief Labour Officer Mr. Eugene Narh Korletey and GMWU collectively and jointly declared on 30lh May 2019 at the National Labour Department that they could only recall signing an MOU dated 15th September 2014 at a hotel in Akosombo to cover the entire major retrenchment exercise carried out in 2013 and 2014 respectively by the defendant.
iv. The defendant was represented by her former Senior HR Vice President in the person of Mr. Steve Rickman on the 4th October 2021 at the Obuasi Circuit Court where he admitted 430 workers were retrenched from September to December 2013, April and May 2014: 400 workers and June to August: 1932 workers were retrenched. He concluded that the total number the defendant retrenched was 6500 but none of these mentioned was found in any of the three MOUs tendered by the defendant before the Obuasi Circuit Court.”
These allegations of fraud made by the plaintiffs were denied by the defendants. By section 13(1) of the Evidence Act, 1975 (NRCD 323) the plaintiffs assumed the onus probandi to establish that the defendant or its agents perpetuated fraud on them for
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OF GHAN
HAMA JUDICIAL SERVICE OF GHANA JUDICIAL SERV
GHANA
which the statutory period of limitation could not run until they discovered the fraud. Since fraud connotes the imputation of crime on the part of the defendant, the law required the plaintiffs to establish their allegations clearly and convincingly and beyond reasonable doubt. Sec Nana Asumadu II (Substituted by Nana Darku Ampem) & Another v. Agya Ameyaw [2019-2020] 1 SCLRG 681 at 695; Akutuye & 2 Ors v. Nyakoah & 2 Ors [2017-18] 2 SCLRG 1007; Fenuku v. John Teye [2001-2002] SCGLR 985 985.
The jurisprudence from our court have established time and again, that allegations of fraud was a serious matter because it implied dishonesty and criminal conduct. In S.A. Turqui & Bros v. Dahabich [1987-88] 2 GLR 486 at 502 – 503, the Court of Appeal, speaking through Taylor JSC, explained the ingredients of a charge of fraud thus:
“In my opinion, a charge of fraud in law can be taken to be properly made against a party who knowingly or recklessly whether by conduct or words uses unfair, wrongful, or unlawful means to obtain a material advantage to the detriment of another party. It is an insidious form of corruption and it is therefore a charge involving moral obloquy. Bluntly put without equivocation, it is a species of dishonest conduct. In law, it involves a false representation whether exhibited by words or conduct or otherwise which in the well-known words of Lord Herschcll in the locus classicus, Derry v. Peek (1889) 14 App. Cas. 337 at 374, ‘…made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.’”
Another nuanced exposition on the concept of fraud is provided by the learned editors of the Halsbury’s Laws of England (5th ed.) vol. 47 at page 17 as follows:
“A person is guilty of fraud if: (1) he dishonestly makes a false representation, and intends, by making the representation, to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss; (2) he dishonestly fails to disclose to another person information which he is under a legal duty to disclose and intends, by failing to disclose the information, to make a gain for himself or another or to cause loss to another or to expose another to a risk of loss; or (3) he occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, dishonestly abuses that position, and intends, by means of the abuse of that position, to make a gain for himself or another, or to cause loss to another or expose another to a risk of loss.”
See also Poku & Others v. Poku & Ors [2008-2009] 1 GLR 501 SC.
The question then is what were the contents of the letters dated 17th August 2017, 9th August 2018, 2nd January 2019 and 14th January 2019, that were alluded to by the
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plaintiffs in their pleadings? Did those letters evince fraud on the part of the defendant or its agents? Or did those letters constitute acknowledgment of indebtedness by the defendant for which the cause of action in the plaintiffs could be resuscitated?
Per the plaintiffs’ exhibit CF’ dated 29/09/2017, exbibit ‘J’ dated 09/08/2018, exhibit ‘M’ dated 02/01/2019, and exhibit ‘N3’ dated 14/01/2019: the position of the defendant, in disclaiming further liability to the plaintiffs in respect of its retrenchment exercises undertaken from September 2013 to November 2014 to the Labour Commission and the Labour Department, was unequivocal. The defendant was emphatic in communicating its position that it had complied with all the requirements of the law and Lilly paid outstanding severance packages to the plaintiffs as far back as 2014. There was therefore no question of subterfuge in the correspondences alluded to by the plaintiffs to ground their allegations of fraud against the defendant.
Moreover, I have scrutinised the entire twenty-seven-paragraphed evidence-in-chief of the plaintiffs’ witness; nowhere in Alex Frimpong’s testimony did he speak to matters of fraud on the part of the defendant. The plaintiffs were dead silent on their allegations of fraud made against the defendant when their witness mounted the box to testify under oath. In the result, I hold that the plaintiffs’ allegations of fraud made against the defendant were downrightly misconceived; the plaintiffs’ allegations of fraud were a ruse intended to resuscitate a cause of action which was otherwise barred by statute due to the effluxion of time. The plaintiffs therefore could not benefit from the provisions of section 22 of NRCD 54 under which an exception had been created to prevent time from running in situations where fraud had been perpetrated on the claimant by the defendant or its agent.
In terms of the plaintiffs’ grievances against the proceedings at the Labour Commission, their statutory route was to have proceeded to the Court of Appeal, and not to mount a fresh action at the High Court against the defendant. Such a fresh action, as in the instant case, which seeks to relitigate matters concluded on its merit at the Labour Commission, could amount to abuse of the court process.
Claims of abuse of court process
From the issues set down for trial, an objection has been raised to a merit-based consideration of the claims in this suit on grounds of abuse of the court process. In the normal scheme of things, a determination that the action was barred by statute should suffice to terminate the whole action, for which no further analyses of the other outstanding issues would be needed. Nevertheless, the use of the proceedings at the Labour Commission by the plaintiffs as justification for their inability to mount the instant action in time necessitated the need for this Court to ascertain whether or not the instant action amounted to abuse of the process.
The phrase ‘abuse of the process’ is defined as a term of art that encapsulates the inordinate and mischievous use of the processes of court not for the purpose of seeking real justice or any legal or equitable remedy but for some collateral end. In Antwi v. Appiahen [J4/10/2023], the Supreme Court in propounding the above definition cited with approval the definition of the ‘abuse of the process’ in The Black’s Law Dictionary (8th edition) at p. 11, as connoting the improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’ scope.
So conceived, this Court is given powers under Order rule 11(18)(d) of High Court (Civil Procedure) Rules, 2004 (Cl 47) to strike out pleadings to prevent its processes from being used as a means of vexation and oppression in the process of litigation. The said Order 11 rule 18(1 )(d) of Cl 47 provides that:
“The Court may at any stage of the proceedings order any pleadings or anything
in any pleadings to be struck out on the grounds that -(d) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or a judgment to be entered accordingly.
In the instant case, the pleadings and the evidence confirmed that the parties were before the Labour Commission over the retrenchment exercises embarked upon by the defendant from September 2013 to November 2014. In the evidence-in-chief of the plaintiffs’ witness, he testified that:
“8. We lodged a complaint of incomplete severance package and non-binding retrenchment agreement with the National Labour Commission on 18th August 2017. I wish to tender the NLC Executive Secretary Hon. Ofosu Asamoah’s letter written to the defendant dated 1 llh September 2017 about our complaint and the reply from Lawyer Kwame Amankwah-Twum, who was defendant’s lawycr/solicitor at the time and mark them as exhibit E and F respectively.”
In cross-examination of the plaintiffs’ witness on 3rd April 2025, he admitted that:
“Q: When you went to the Labour Commission, your sole complaint was in respect of what you call ‘special compensation pay’. Is that not so?
A: My lord it is perfectly so.
Q: This purported claim at the Labour Commission arose from a document you have titled unprecedented negotiations, which you have exhibited as Exhibit Q1. Is that not so?
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A: My lord that is so.
Counsel for the plaintiffs at page 5 of his written address further submitted thus:
“Exhibits E, G, H, J and K3 bear credence to the fact that the plaintiffs resorted to the Labour Commission as a first instance and, upon their dissatisfaction, resorted to the law courts. Section 138 of the Labour Act, 2003 sets up the Labour Commission and empowers it to hear and attempt settlement of dispute relative to labour. It is therefore untenable that the action is statute-barred. It was not until the plaintiffs were dissatisfied with the outcome of the matter at the Labour Commission that the present action was instituted.”
The defendant through its witness also asseverated that:
“16. The plaintiffs commenced an action against the defendant before the National Labour Commission (NLC) seeking virtually the same reliefs herein. After hearing the matter on its merits, the NLC dismissed the claims of the plaintiffs. The plaintiffs have already attached a copy of the proceedings of the NLC to their witness statement and for the sake of avoidance of repetition, I have not sought to tender same.”
This crucial evidence that the claims of the plaintiffs, in respect of the 2013/2014 retrenchment exercises undertaken by the defendant, were heard on the merit and dismissed by the Labour Commission was not contradicted by the plaintiffs. I am therefore persuaded by the sound proposition of the law that where the evidence led by a party is not challenged by his opponent in cross-examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court. Sec Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 applied; Hammond
v. Amuah & Another [1991] 1 GLR 89.
Assuming arguendo that the instant action was not barred by statute, the admission by the plaintiffs that they resorted to the High Court for the same reliefs after their case had been dismissed on its merit by Labour Commission should be deprecated by this Court. The position of the law was that an aggrieved party was at liberty to resort to any of the two fora in vindicating their labour related rights. The jurisdiction of the High Court was not pro tanto ousted because a party had resorted to the processes of the Labour Commission. The High Court has concurrent jurisdiction with the Labour Commission in granting the reliefs set out under Act 651. Sec Republic v. High Court, Accra; Ex parte Sangber-Dery (ADD Bank Ltd Interested Party) [2016-2017] 1 GLR 65
KUMASI
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However, when a party opts for the processes of the Labour Commission and their industrial dispute is determined on its merits, the aggrieved person could seek further redress at the Court of Appeal, and not at the High Court, unless for a judicial review remedy. With the evidence that the Labour Commission’s proceedings terminated on its merit, and taking into account the provisions of the Labour Act, it would amount to egregious abuse of the litigation process for the defendants to defend the same cause of action arising from its September 2013 to November 2014 retrenchment exercises in this Court.
As earlier adumbrated, the Labour Commission in the performance of its judicial function has the powers of the High Court. The statutory route to challenging a decision, order or direction of the Labour Commission is by way of an appeal to the Court of Appeal. In the hierarchies of the labour dispute resolution fora, the principle that there must be an end to litigation, as expressed in the Latin maxim interest rei publicae nt. sit finis litium is dominant and must be applied rigorously. In the instant case, therefore, it would be untenable for the plaintiffs to relitigate matters concluded on its merit between the parties at the Labour Commission at the High Court, instead of the aggrieved party exercising the right of appeal therefrom. See Poku v. Poku [2007-2008] SCGLR 996 @ 999 Ansah JSC
Conclusion
On the bases of the determinations of the two preliminary issues of limitation of action and abuse of the court process in favour of the defendant, the remaining issues on the merits of the retrenchment exercises undertaken by the defendant from September 2013 to November 2014 do not have to be investigated and determined by this Court. The instant action by the plaintiffs against the defendant is barred by statute and is further declared to be abuse of the court process. In the result, the instant action by the plaintiffs against the defendant is dismissed in its entirety. No orders as to costs.
(SGD)
DR. POKU ADUSEI, JA
(JUSTICE OF APPEAL)
COUNSEL:
ASAMOAH BAFFOUR OKYERE ESQ FOR NANA OBIRI BOAHEN ESQ, COUNSEL FOR TFIE PLAINTIFFS – PRESENT
APPIAIIENE OSEI AICOTO ESQ FOR O.K. OSAFO-BUABENG ESQ, COUNSEL FOR THE DEFENDANT – PRESENT
SERVH
KVMAS1
JUDICIAL SERVICE OF GHANA JU
IOAL SERVICE OF GHANA JUDICIAL SERVICE O!
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