GHANA TEXTILE PRINTING CO LTD vs. ANKUJEAH AND OTHERS [1999-2000] 2 GLR 473

CASES REFERRED TO

(1) Sam v Comptroller of Customs and Excise [1971] 1 GLR 289.

(2) Becke v Smith (1836) 2 M&W 191; 6 LJEx 54; 150 ER 724.

(3) Warburton v Loveland (1828) Hud & Bro 623; 5 ER 499.

(4) Kuenyehia v Archer [1993-94] 2 GLR 525, SC.

(5) Ali-Jiagge v Inspector-General of Police, Supreme Court, 26 March 1990, unreported.

(6) Tema Food Complex Corporation v Deku [1997-98] 2 GLR 934, CA.

(7) R v Barnet London Borough Council; Ex parte Nilish Shah [1982] QB 688; [1980] 3 All ER 679;

[1981] 2 WLR 86; reversed sub nom Shah v Barnet London Borough Council [1983] 2 AC 309.

(8) Western Bank Ltd v Schindler [1977] Ch 1.

(9) Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505; [1974] 2 All ER 97; 59 Cr App R 131,HL.

(10) Guardian Assurance Co Ltd v Khayat Trading Store [1972] 2 GLR 48. CA.

(11) Guardian Assurance Co Ltd v Agbematu [1972] 2 GLR 337, CA.

(12) Government of United States of America v Jennings [1983] 1 AC 624; [1982] 3 WLR 450; 75 Cr App R367.

(13) Yorkshire Fire and Life Insurance Co v Clayton (1881) 8 QBD 421; 51 LJQB 82; 45 LT 697; 45 JP 569, CA.

(14) Curtis v Stovin [1889] 22 QBD 513; 58 LJQB 174; 60 LT 772, CA.

(15) Whitney v IRC [1926] AC 37; 10 TC 88; 95 LJKB 165, HL.

(16) Brockelbank, Re Ex parte Dunn & Raeburn (1889) 23 QBD 461; 58 LJQB 375; 61 LT 543, CA. (17) Lysons v Knowles (Andrews) & Sons Ltd; Stuart v Nixon [1901] AC 79; 70 LJQB 170; 84 LT 65. (18) Grey v Pearson (1957) HLC 61; 26 LJ Ch 473; 3 Jur NS 823.

(19) Asamoah v The Republic [1972] 1 GLR 117.

(20) Ababio v The Republic [1972] 1 GLR 347.

(21) Canada Sugar Refining Co Ltd v R [1898] AC 735.

[p.478] of [1999-2000] 2 GLR 473 (22) Ghana Muslims Representative Council v Salifu [1975] 2 GLR 246, CA.

(23) Essilfie v Anafo [1922] 2 GLR 654, SC.

(24) Quaynor v Quarshie, Court of Appeal, 3 February 2000, unreported.

(25) Artemiou v Procopiou [1966] 1 QB 878; [1965] 3 WLR 1011; [1961] 3 All ER 539, CA. APPEAL against decision of High Court, Tema declaring clause in collective agreement between respondents and appellant company void as being inconsistent with the provision of section 34(2) of the Labour Decree, 1967 (NLCD 152) as amended by the Labour (Amendment) Decree, 1969 (NLCD 342). The facts are fully set out in the judgment of Wood JA.

J K Agyemang (with him Ayitey) for the appellant.

E K Jones-Mensah (with him Agbenuvor) for the respondent.

Wood JA. Following the restructuring of the defendant appellant company (hereinafter referred to as the appellants) in 1994, the plaintiff-respondents (hereinafter referred to as the respondents) were declared redundant and paid severance benefits in accordance with the prevailing collective agreement (exhibit A). Each respondent therefore became entitled to: “Two months consolidated basic pay for each year of service, effective 1 January 1991 to the date of redundancy.” However, contending that the awards were void, unlawful and of no legal effect in that they violated the clear, mandatory provisions of the Labour (Amendment) Decree, 1969 (NLCD 342), the respondents filed suit in the High Court, Tema claiming the following reliefs:

“(1) Payment of each plaintiff’s severance compensation with effect from the date each plaintiff commenced work with the defendant company as employed up to 31 December 1990.

(2) Interest at prevailing bank rate from 1 February 1994 to date of payment.

(3) An order directing the defendants to immediately negotiate the severance compensation with the plaintiffs for the period of service of each plaintiff before 1 [p.479] of [1999-2000] 2 GLR 473

January 1991, failing which the Honourable Court could itself determine a fair and just compensation for the period concerned.”

The appellants raised two matters in defence to the substantive claim. These are contained in their original and unamended statement of defence. Firstly, that the quantum of severance award is not fixed by statute, but was a matter of negotiation. And consequently, as the respondent were all duly paid in accordance with the negotiated provisions of the existing, valid collective agreement, they are estopped from any further claims secondly, that claim was statute-barred.

The learned trial judge however, found the claims proved and entered judgment in favour of all the respondents on all the claims sought, together with costs of ¢10 million. In this appeal, as many as ten grounds were urged upon us, six of which (original grounds (A), (B) and (C) and additional grounds (1), (2) and (3)) were argued together. My own view is that the latter, ie the additional grounds are a duplication of the original grounds of appeal. Therefore, rather than reproduce all six grounds of appeal, I would under the circumstances quote in extenso only the additional grounds (1), (2), (3) which in my humble estimation is the more comprehensive of the two:

“(1) The trial court erred when it held that paragraph 34(2) of the Labour Decree, 1967 (NLCD 157) as substituted by NLCD 342 provided a mandatory statutory formula which employers and employees were bound to take into account when negotiating in respect of the time period that was to form the basis of the computation of severance payments.

(2) The trial High Court erred when it held that article 36 of Exhibit A was void as being inconsistent with the provision of section 34(2) of NLCD 157 as amended.

(3) The trial High Court erred when it upheld the plaintiffs’ claim for the payment by the defendant company to each of them of severance pay from the date each plaintiff commenced work with the defendant company as employee to 31 December 1990.”

Before proceeding to determine the questions raised by these grounds of appeal, we must address an important preliminary issue

[p.480] of [1999-2000] 2 GLR 473 raised by the respondent to the hearing of this appeal. The issue is, would the appellants’ failure to file a written submission of his case within the time stipulated under the rules mean the said appeal is deemed to have been struck out and there is therefore no appeal pending with respect to this matter?

The Court of Appeal Rules, 1997 (CI 19) has been amended by the Court of Appeal (Amendment) Rules, 1999 (CI 25) by the substitution of subrules (1) and (2) of rule 20 with the following:

“20. (1) An appellant shall within 21 days of being notified in Form 6 set out in Part 1 of the Schedule that the record is ready, or within such time as the Court may upon terms direct, file with the Registrar a written submission of his case based on the grounds of appeal set out in the notice of appeal and such other grounds of appeal as he may file.

(2) Where the appellant does not file the statement of his case in accordance with subrule (1), the Registrar shall certify the failure to the court by a certificate as in Form 11A in Part 1 of the

Schedule and the Court may upon that order the appeal to be struck out.”

From the above amended rules, I do not think there is an automatic striking out or loss of an appeal, even in the event of a noncompliance with the rule 20(1) of CI 19 as amended by CI 25. The subrule (2) enjoins the registrar as a first step to certify the non-compliance to the court, whereupon the court may (not shall) exercise the striking out option. Therefore, even in cases where there has been due notification of the non-compliance to the court (and that is not the position in this instant case), the power conferred is permissive, not mandatory. However, on the facts of this case, the registrar has not certified the non-compliance and this court has made no order striking out the appeal. Since the appeal has not been struck out, it must be deemed to be pending. In any event, even if the invitation to strike out is now being extended to us, I am not minded, in the exercise of my discretion, to apply this extreme sanction. I think this penalty of striking out an appeal for non-compliance under rule 20(1) of CI 25 and not hearing it on the merits must be exercised with caution. It must be employed in plain and obvious cases where in all the circumstances, it would be unjust to do otherwise; circumstances, I believe, like the period of delay, the nature of the questions raised by the appeal in question, its importance or otherwise etc.

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There are ways by which a respondent who has suffered as a result of a delay on the appellant’s part may be compensated and the hearing expedited. In this instant case however, the following factors—the length of time this appeal has been pending, but notably the serious and substantial questions of law raised by it, not to mention the crucial fact that the respondents themselves upon being served with the record complained about its incompleteness and called for its rectification, have constrained me from striking out the appeal. In any case, it seems to me that it is implicit in the rule that the 21-days limit under the rule, would begin to run only where the record of appeal is complete and faultless. To my mind then, where a party, particularly a respondent, as happened in this instant case, complains to the registrar or the court about omissions or inaccuracies in the record and demands that those be rectified, then time ought not to run until either those anomalies have been corrected, or the party withdraws his complaint or the court subsequently rules that the omissions are not fatal to the hearing of the appeal. The point I would wish to emphasise is that, until the question of the incompleteness or otherwise of the record is settled, it lies ill in the mouth of that same complainant to turn round and argue about his opponent’s non-compliance with the 21-days rule, I find no merit in the preliminary point raised and I dismiss it accordingly.

Two critical questions, which same questions confronted the learned trial judge, are raised by grounds (A), (B), and (C) and additional grounds (1), (2), and (3). The principal question is whether article 36 of the collective agreement, exhibit A, under which the respondents were paid their severance benefits, is inconsistent with paragraph 34(2) of NLCD 157 as substituted by NLCD 342. Related to this question is this other vital issue: whether or not the said provisions prescribe a mandatory formula to be used in determining the period in respect of which a severance award is to be paid. Put in simpler terms, does paragraph 34(2) of NLCD 342 prescribe a formula for assessing a severance award?

Two arguments were advanced in support of the criticism that the learned trial judge erred: (1) in her interpretation of the said provision; and (2) her final conclusion that article 36 of exhibit A is inconsistent with paragraph 34(2) of NLCD 342. It was submitted that the said provisions do not lay down any formula, let alone a mandatory formula for fixing the quantum of severance

[p.482] of [1999-2000] 2 GLR 473 award. It was urged that on the contrary that, it only prescribes a factor to be taken into account in determining whether a person has suffered a diminution in his or her terms and conditions of employment such as would make him or her eligible for a severance award.

Not unexpectedly, the contrary argument advanced by the other side is that that provision is a “determinant” provision in that it lays down factors to be taken into consideration in assessing the quantum of severance award. The argument further was that opting for this construction, would lead to the conclusion that article 36 of exhibit A is inconsistent with the express mandatory provisions of the law and is consequently null and void.

What then is the proper construction to be placed on the law in question, ie paragraph 34(2) of NLCD 342? Paragraph 34 of NLCD 342 stipulates:

“34. (1) Where an organisation is closed down or where an organisation undergoes an arrangement or amalgamation and the close down, arrangement or amalgamation causes a severance of the legal relationship between employee and employer between any person and the organisation as it existed immediately before the close down, arrangement or amalgamation, then, if as a result of and in addition to such severance that person becomes unemployed or suffers any diminution in his terms and conditions of employment, he shall be entitled to be paid by the organisation in whose employment he was immediately prior to the close down, arrangement or amalgamation, compensation in this Decree, referred to as “severance pay.”

(2) In determining whether a person has suffered any diminution in his terms and conditions of employment under sub-paragraph (1) of this paragraph account shall be taken of the past services and accumulated benefits (if any) of such person or in respect of his employment with the organisation before it was closed down or before the occurance of the arrangement or the amalgamation.”

It is trite learning that to obtain the true meaning of any enactment, or indeed any document, it must be read as a whole. The learned Ghanaian author, SY Bimpong-Buta in his invaluable text book. The Law of Interpretation in Ghana (Exposition and Critique) (1995) has carefully spelt out the rules that govern

[p.483] of [1999-2000] 2 GLR 473 statutory interpretation in our jurisdiction. Indeed, his exposition of the rules are no different from those expounded by other well-known English writers on the subject. Writing under the heading “Construction or Interpretation of Statutes”, the learned author states at page 36: “The traditional common law view is that there are three basic rules of statutory interpretation: the literal or plain meaning rule, the golden rule and the mischief rule.” He expounds the first primary rule further as follows at page 38: “The salient features of this basic rule (as stated) are: the need to resort to the ordinary, literal or dictionary meaning or where necessary the technical meaning, in relation to the context in which the words or phrases have been used.”

The settled law is this: the primary rule of construction of statutes, to which the others, namely the golden rule and the mischief rule, are subordinate is that the words must be given their natural, literal, ordinary or dictionary meaning or where necessary their technical meaning in the context in which they have been used and the plain meaning of the enactment given effect to even though the result may be found to be unpalatable. It is only where an application of the plain or ordinary meaning rule leads to an absurdity, inconsistency or repugnancy that the secondary construction rule, described also as the “golden rule” would be invoked.

Two local cases would settle this matter beyond controversy. In Sam v Comptroller of Customs and Excise [1971] 1 GLR 289 Taylor J (as he then was), sitting on an appeal from the district court and relying on the dicta of Parke B in Becke v Smith (1836) 2 M&W 191 at 195), quoting Burton J in Warburton v Loveland (1828) Hud & Bro 623, held, as stated in the headnote, holding (1) as follows:

“(1) it is the duty of a court, in interpreting an enactment, to give effect to the intention of the legislature.

Therefore, where words in an enactment are clear and unambiguous no question of interpretation arises; but where the ordinary meaning of the words used leads to a manifest absurdity or repugnance a court may alter the words of the enactment, but only to the extent of avoiding the absurdity or repugnance.”

Again, in Kuenyehia v Archer [1993-94] 2 GLR 525 at 606, SC Bamford-Addo JSC, supporting the majority decision, stated that:

[p.484] of [1999-2000] 2 GLR 473

“Broadly the general method of interpreting statutes or constitutions is to give words their ordinary meaning and if the ordinary meaning makes sense of the passage then the intention as deduced there from, must be given effect. It is only when the construction leads to absurdity or is ambiguous, that one is required to look elsewhere or to resort to the application of certain other principles of interpretation in order to ascertain the true meaning and intention of the legislature.”

In applying the first primary rule to the law in question, I find the meaning so plain and obvious it does not admit of any other construction. To my mind, this law does not lay down the factors to be taken into account in assessing or determining the quantum of severance award. On the contrary, what it does, in my view, is to emunerate factors to be taken into account in determining the question of who has suffered a diminution in terms and conditions of service in terms of the preceding paragraph, paragraph 34(1) of NLCD 342, and is therefore eligible for severance award or the in language of the act, severance pay.

Indeed, an examination of the preceding paragraph 34(1) of NLCD 342 would remove any doubts about the meaning of paragraph 34(2). Among its principal object, as the enactment itself states, is to identify persons who are entitled to severance award or severance pay.

The enactment identifies two such categories of persons, one of them being the person who suffers a dimunition in his terms and conditions of employment. Thus, under paragraph 34(1) of NLCD 342; when an organisation in which employees work is closed down or undergoes an arrangement or amalgamation and the restructuring causes a severance of the employment relationship and further as a result an employee additionally suffers a reduction in his terms and conditions of employment, he is by the clear provisions of paragraph 34(1) of NLCD 342 entitled to “severance pay.” This is to be paid by the organisation in whose employment he was prior to the restructuring. The question of who has or has not suffered a diminution in his terms and conditions of service therefore becomes a critical one. And. paragraph 34(2) provides the answer to this all important question. It lays down the factors to be taken into account in resolving this issue. I am of the opinion that the sub-paragraph (1) is so plain it does not call for any

[p.485] of [1999-2000] 2 GLR 473 secondary construction, that is to say an application of either the “golden” or “mischief” rules as has been advocated by the respondent counsel. I find that this clear meaning does not lead to any absurdity, repugnancy, unreasonableness, hardship or manifest injustice or the like such as would attract or admit of any other construction. Indeed, the next provision, ie paragraph 35 of the enactment, reinforces the point that sub-paragraph 34(1) does not lay down the formula for assessing the quantum of severance award at all but it rather deals with the question of whether a person has suffered a reduction diminution in terms and conditions of employment and consequently is eligible for severance award. Let me reproduce paragraph 35 of NLCD 342. It stipulates:

“35. The amount of any severance pay to be paid under paragraph 34 of this Decree as well as the terms under which payment is to be made shall be matters for negotiation between the employer or his representative and the employee or his representative.”

(The emphasis is mine.) Plainly, in my view, paragraph 35 of NLCD 347 clearly stipulates that the quantum or the severance award payable is entirely a matter for negotiation between the parties or their representatives. The law has not enumerated one single statutory factor to be taken into account in this assessment.

At this hearing, we have been urged by counsel for the appellant company to additionally resort to a study of the pre-enacting history of the legislation to arrive at a true and proper construction of the law in question, in this instant case the previous law which is paragraph 35 of NLCD 157. I concede that in our jurisdiction, legislative history may also be used in interpreting statutes. But it is a guide only, that is an aid as stated by his lordship, Francois JSC in his opinion in Ali-Jiagge v Inspector-General of Police, Supreme Court, 26 March 1990, unreported, namely: “A cardinal aid to the ascertainment of legislative intent is through the study of the history of the particular enactment.” However, it is plain from the legal text writers that these aids and guides, which are clearly distinguishable from the primary or basic rules of interpretation, are merely guides. They are therefore truly our handmaids not our masters. Thus, Bennion rationalises in his Statutory Interpretation (2nd ed) at p 438 that:

[p.486] of [1999-2000] 2 GLR 473

“Subject to relevant legal rules, a court considering an enactment is master of its own procedure and therefore has the power, indeed the duty, to consider such aspects of legislative history of the enactment as may be necessary to arrive at its legal meaning.”

(The emphasis is mine.)

Again, Bimpong-Buta cautions at page 77 of his Law of Interpretation in Ghana (1995), and understandably so, that:

“. . . these aids and guides are not to be applied automatically; they merely help the courts in determining the true meaning to be placed on the statutory words or expressions. They are therefore our servants not our masters. In other words, if resort to theses guides or aids may in themselves create absurdities or unreasonableness the courts are to avoid them altogether.”

It seems to me then that these aids or guides, described by Bennion as “interpretative criteria” become useful when for example, the application of the meaning of the enactment is somewhat obscure and the legislative history would help unravel it. The converse then is that when the meaning is plain and obvious or certain, indeed when an application of the first primary rule of construction leads to a just interpretation, no need arises to resort to these guides. In much the same way that reading glasses are not meant for those whose eyesight is good, but for those with weak or impaired eyesight, legislative or pre-enactment history becomes useful when the meaning of the enactment is shrouded in obscurity. In the instant case therefore, while I concede that the preenacting history has a rightful place in the construction of statutes, I find the meaning of paragraph 34(2) of NLCD 342 so clear, I cannot justify the use of it. In conclusion, I would agree with the appellant’s counsel that the learned trial judge erred in her construction of paragraph 34(2) of NLCD 342.

The additional ground (5) states that:

“(5) The Trial High Court judge erred when he held that there was an omission in paragraph 34(2) of NLCD 157 as amended for the alleged reason that the provision failed to take account of workers who suffer total loss of employment as opposed to those who only suffer diminution in terms and conditions of employment and the

[p.487] of [1999-2000] 2 GLR 473 court was in duty bound to rectify the omission in order to avoid unjust or absurd consequences.”

The main argument in support of this ground is that the learned trial judge’s primary finding that an omission exists in the legislation is fundamentally wrong for the law actually does provide for these persons complained of, ie those people who became totally unemployed, following a restructuring exercise. The argument therefore was that the court had no factual or legal basis for rectifying the law by the insertion of such words as would in the judge’s estimation lead to the desired result, which was the removal of absurdity and injustice. The contrary submission by the respondent counsel is that the learned trial judge rightly found an omission in the law and was perfectly justified in the step she took.

My views are these. First, I think that the argument that paragraph 34(2) of NLCD 342 does not provide for severance pay for employees who suffer total unemployment as a result of or following the closure, rearrangement, or amalgamation of the organisation in which he works is inaccurate. A careful reading of the law in quest-ion proves the contrary. Such an employee is also by paragraph 35 of NLCD 342 empowered to negotiate his severance award. Contrary to the contention of learned counsel for the respondent there-ore, I find no absurdity, injustice, or contradiction of the legislative intent, or hardship or injustice such as would justify our reading words into the enactment. I had occasion to examine the scope of paragraph 34(2) of NLCD 342 in Deku v Tema Food Complex Corporation [1997-98] 2 GLR 934, CA. My pronouncement on the issue of whether or not paragraph 34(2) does provide for the payment of severance award to those who suffer a total loss of employment as a result of a restructuring exercise is to say the least of persuasive authority and has helped me answer this question in the affirmative. This is what I said in the Deku case (supra) at 939-940:

“Employees in any organisation which is closed down or which undergoes any arrangement or amalgamation, may be affected by the exercise in three different ways. There may be those whose terms and conditions remain unaffected by the exercise. Indeed, it may well be that the same may profit by the new arrangement, as for example when the employee begins to enjoy an increase in salary and better conditions of

[p.488] of [1999-2000] 2 GLR 473 service. We are not in this appeal concerned with such group of employees. What we are concerned with, and indeed those employees NLCD 342 seeks to protect, are those who as a result of the severance of the employment relationship: (1) become altogether unemployed, or (2) those who escape this misfortune and remain employed, but yet suffer a diminition in terms and conditions of employment. Upon a plain reading of the section 34(1) of NLCD, 342 such persons shall be entitled to severance pay. However, as rightly argued by both counsel, paragraph 35 of the NLCD 342 stipulates that for both group of persons, the quantum as well as the terms under which such payment shall be group of persons, the quantum as well as the terms under which such payment shall be made, shall be matters for negotiation between the employer and employee or their representatives.”

But even so, assuming there was a clear omission on the part of the legislature, and the law did not make provision for these who suffer total loss of employment, I nevertheless do not think it was right for the learned trial judge to supply all such necessary words in order to bring them into its ambit. What the learned trial judge did, in my view, amounted to a clear usurpation of legislative power. The legal position is that at common law, courts are empowered to:

“alter or effect an emendation of words in a statute by adding to those express words, other words which they consider as necessarily implied or even to ignore the express words altogether with a view to avoiding unintelligibility, unreasonableness or absurdity.”

See Bimpong-Buta, The Law of Interpretation in Ghana (Exposition and Critique) (1995) at p 57.

But this power, as the legal authorities, especially the legal text-writers who have written extensively on the subject, show, is very limited in scope. So, as pointed out by Bimpong-Buta, the purpose is to avoid “unintelligibility, unreasonableness or absurdity.” Cross, another celebrated author, thinks likewise. In his book Statutory Interpretation (3rd ed) at p 93, he deals with the subject under the heading: “Reading words in and out of a statute.” He also states:

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“The judge may read in words which he considers necessarily implied by words which are already in the statute; and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally unreasonable with the rest of the statute.

Words may be said to be necessarily implied by other words when their express statement merely clarifies a secondary meaning of those other words.”

Further at p 99, the learned author delimits the power as such:

“The power to add to, alter or ignore statutory words is an extremely limited one. Generally speaking, it can only be exercised where there has been a demonstrable mistake on the part of the drafter or where the consequence of applying the words in their ordinary, or discernible secondary meaning would be utterly unreasonable.

Again, Maxwell on Interpretation of Statutes (12th ed), the very text writer upon whom the respondent counsel relies on in support of his argument, confirms the limited scope of the rule. The learned author, inter alia, indicates that an omission which the context shows with reasonable certainty to have been unintended may be supplied at least in enactments which are construed beneficially, as distinguished from strictly. We learn from him that the modification may be done only where the enactment itself had, in the first place, received a beneficial and not a strict construction, as have been done in this instant case. Useful decided cases on the point include: R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309; Western Bank Ltd v Schindler [1977] Ch 1 and Federal Steam Navigation Co Ltd. v Department of Trade and Industry [1974] 2 All ER 97. Lord Reid spells out at some instances in which the rule applies in the Federal Steam case (supra) at 100. He opined:

“Cases where it has properly been held that a word can be struck out of a deed or statute and another substituted can as far as I am aware be grouped under three heads: where without such substitution the provision is unintelligible or absurd or totally unreasonable; where it is unworkable; and where it is totally irreconcilable with the plain intention shewn by the rest of the deed or statute.”

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I therefore think that in the construction of statutes, we need to draw a clear distinction between cases where a law has clearly and deliberately not provided for any given situation or set of circumstances and those other cases where an unintended omission results in the situation indentified by the authorities-namely unintelligibility, absurdity, unworkability or unreasonableness and the like or, in the case of an enactment which has been beneficially construed, a reasonable certainty exists from the context that the omission was unintentional. I think that in the latter class of cases, alterations or emendations of the statute either by the addition of or the taking out of words may be allowed. But, I do not think the same would be permitted in the former class of cases. My thinking is that it is not the duty of the courts to supply words in order to rectify such anomalies. This simple illustration would clarify the point I have made. Suppose an enactment under which different categories of persons are tried expressly makes provision for the right of appeal to only some and not all those who could be tried under that law. I do not think we would be right in saying “what a wicked and unjust law, we would fill in all the necessary missing words in order to extend that right of appeal to these also who have not been mentioned.” My view is that so long as the ordinary meaning of that enactment is plain on the face and can be ascertained, the best a court can do in the circumstances is to draw attention to the injustice in the hope that it would be corrected by the lawmakers. In my opinion, the alleged omission by the learned trial judge in the instant case is not the type that justifies a court’s intervention. I would reiterate that it was thus not open to the learned trial judge to insert any words in the enactment. The respondents are not entitled to judgment, when the undisputed evidence also is that they have in accordance with the law, negotiated for and have been paid their severance award. I think these grounds of appeal I have dealt with are so fundamental they do resolve this appeal in the appellants’ favour, and consequently no useful purpose would be served by dealing with the additional ground (4).

Original ground (5), and the complaint which I am uninclined to agree with, is that “the costs awarded were excessive.” The following decisions of this court: (1) Guardian Assurance Co Ltd v Khayat Trading Store [1972] 2 GLR 48, CA and (2) Guardian Assurance Co Ltd v Agbematu [1972] 2 GLR 337 CA identify the circumstances under which this court, or indeed, an appellate

[p.491] of [1999-2000] 2 GLR 473 court, would interfere with a trial court’s award of costs. The appellate courts are always slow to interfere with costs awarded by the court of first instance, principally because it involves the exercise of a discretion. The well-settled rule however is that, like all judicial discretions, it must be exercised judicially; that is according to reason and justice and not according to sentiment and sensibility: Guardian Assurance Co Ltd. v Agbematu (supra). It seems to me the costs of ¢10 million awarded in this case was excessive seeing that although there are over hundred plaintiffs involved, it was a group action in which only one set of uncomplicated pleadings was filed on behalf of all of them.

Evidence was not lengthy, neither was the trial which was conducted by the same counsel for all of them protracted. I think the appeal on this ground must also succeed.

In the result I allow the appeal in this case. The decision of the court below together with the costs awarded is hereby set aside. I would in its stead order a dismissal of the respondents’ case.

Brobbey JA. My judgment restates the same reasoning and conclusions as those contained in the judgment read by the president of this panel. I do not need to repeat them by reading what I have written. Suffice it to say that I indorse the reasons given in her judgment and her conclusions as well.

The only points I wish to repeat for the sake of emphasis are these: Article 36 of the collective agreement, exhibit A, states simply that severance payment for unionized employees shall be calculated as follows: “Two months consolidated basic pay for each year of service effective 1 January 1991.” The entire case revolves around this clause. What is to be noted carefully about this clause is that it has no precondition, proviso or requirement to be satisfied before it will be implemented. It is a categorical statement which sets out the number of months to be used to calculate the amount to be paid, ie two months. Secondly, it links the compensation to two months of “the consolidated basic pay for each year of service.” In other words, for every year that an employee has worked for the appellant company, two months’ salary for that year will be set aside and added together to make up what has to be paid as severance compensation. These create no particular problems.

The real bone of contention is the phrase “Effective 1 January 1991.” Within article 36 of exhibit A, what is the meaning to be

[p.492] of [1999-2000] 2 GLR 473 given to this phrase? To my mind, all it means is that whatever amount is to be paid is to be calculated from 1 January 1991. It is the phrase which limits the period of payment to be worked out from 1 January 1991. I do not believe that the clause lends itself to any other interpretation.

The respondents’ case is based on the interpretation which assumes that the phrase “Effective 1 January 1991” was not part of the clause. In fact if there were no such limiting time phrase, they would have been right. However, so long as the phrase remained part of the clause, payment of the severance compensation should be limited to the period starting from 1 January 1991. If the period is limited to January 1991, then there is no basis for the claim to be paid from the day each employee started working with the appellant company. The reason is simply that that is what the parties bargained for and that is what they are entitled to.

That takes me to the next point. Exhibit A, like all collective agreements in this country, is the end product of negotiations between the employers, ie the appellant company and the unionised workers represented by their trade union officials; in the instant case, the Industrial and Commercial Workers Union (IUC) of the Trades Union Congress (TUC). It was in the course of the negotiations that the parties agreed on the period of 1 January 1991. The parties appended their signatures to the agreement, fully cognisant of the fact that the severance pay was to be calculated from 1 January 1991. That agreement is binding on all the parties to exhibit A. On the face of clause 36 of exhibit A, there is no basis for asking that payment should be extended to the period when each employee started working for the company. If that was what the workers desired but was not inserted in the agreement, then they have their representatives to blame for not ensuring that their intentions were duly reproduced in the agreement. A collective agreement is a form of contract and the sanctity of contracts is a principle which must be honoured by all parties who freely and voluntarily enter into any contract, like the instant exhibit A.

Another obvious point raised in this appeal relates to the issue of the application of the collective agreement to senior staff members. At the beginning of the case in the High Court and in this court, the respondents argued that exhibit A applied equally to both senior and junior staff members. That was obviously not correct. Collective agreements are negotiated on behalf of union-

[p.493] of [1999-2000] 2 GLR 473 ised members of staff. That is why the TUC officials represent the workers. Senior staff members are not union members. They therefore cannot be represented by those officials. The judgment of the trial court was defective in so far that it treated senior members of staff on the same basis as junior staff on the application of the collective agreement. It was not surprising that later, at the end of the trial and in a motion to adduce fresh evidence, the same respondents and the applicant therein argued that exhibit A no longer applied to senior officers. That point was made while their earlier arguments on the application to senior staff still remained on the record before this court.

In commenting on this point, I am not unmindful of the fact that the respondents attempted to link article 36 of exhibit A with paragraph 34(2) of NRCD 342. I hold the view that the two articles cannot correctly be linked together and I adopt all the reasons given in the judgment of the president on this issue. Paragraph 34(2) of NRCD 342 deals with eligibility, ie who qualifies to be paid severance compensation. It does not deal with the basis for calculating severance pay. It is rather article 36 which deals with the basis for calculating payment of severance compensation. The two provisions are not the same.

The last point which I wish to comment upon is on the issue of costs. The costs awarded at the trial court are extremely on the high side, even if all the work involved and the time taken to try the case are considered. There is no need to belabour the point at this juncture because the respondents in this court have lost the case by the unanimous decision of this panel. They are entitled to nothing. Costs cannot be awarded to parties who lose the case; like the respondents herein. The appeal succeeds and should be allowed.

Twumasi JA. The thrust of this appeal is the true meaning of the provisions of the Labour (Amendment) Decree, 1969 (NLCD 342). The High Court, Tema preferred the construction placed upon the statute by the respondents and rejected the view of the appellant company as to the true meaning and import of the statute. The court therefore gave judgment for the respondents.

Against that judgment, the appellant has filed a number of grounds of appeal. The facts of the case could be briefly stated for the purpose of shedding some light on the issues of law involved. Sometime in June 1994 the appellant company embarked upon a

[p.494] of [1999-2000] 2 GLR 473 restructuring exercise which affected a sizeable number of the labour force in terms of job losses. The respondents were among those workers who lost their jobs on grounds of redundancy. Under and by virtue of the collective agreement then in force, all those declared redundant were paid compensation referred to in the said agreement as “severance pay” in accordance with article 36 of the said agreement. The latter article had provided that each worker who had lost his job was entitled to be paid two (2) months consolidated basic pay for each year of service. The collective agreement, however, had limited the period for severance pay for the purposes of its computation, to a specific date which was 1 January 1991, irrespective of the date and year a particular worker commenced work with the appellant company prior to 1 January 1991. In real terms, therefore, if for example worker X commenced his services for the appellant on 31 December 1990 he was not given severance pay from that date and year to 1 January 1991.

This collective agreement was negotiated and concluded by two parties, namely the appellant company as employer for the one part and the, junior staff or junior workers through their accredited representatives, namely, the Industrial and Commercial Workers Union (ICU) of the Trades Union Congress (TUC) of Ghana for the other part. The record of appeal reveals however that the beneficiaries of the severance pay made by the appellant company included the senior staff workers who were affected by the exercise. Sometime after payment of the severance pay to them, the respondents raised a fresh issue. Their claim was that great injustice had been meted out to them by their employers, the appellant company. They contended that the terms of the collective agreement which deprived them of severance pay for the period of service prior to the 1 January 1991, was unlawful. They therefore instituted an action in the High Court, Tema claiming the following reliefs:

“(1) Payment of each plaintiff’s severance compensation with effect from the date each plaintiff commenced work with Defendant company as employee up to 31 December 1990,

(2) Interest at prevailing bank rate from 1 February 1994 to date.

(3) An order directing the defendants to immediately negotiate severance compensation with the plaintiff for the

[p.495] of [1999-2000] 2 GLR 473 period of service of each plaintiff before 1 January 1991 failing which the court should itself determine a fair and just compensation for the period concerned.”

In their statement of claim the respondents averred in paragraphs (8) and (9) thereof the following:

“(8) Plaintiffs say that even though they were entitled to severance compensation upon the event of the restructuring arrangement referred to in paragraph (7), they were each paid severance pay only with effect from 1 January 1991 and the previous service of each plaintiff before 1 January 1991 was unlawfully ignored.

(9) Plaintiffs say that severance pay is statutorily imposed under NLCD 342 and could therefore not lawfully have been restricted to 1 January 1991.”

Since NLCD 342 is the focal point of all the disputes or questions of law that need to be canvassed, it is necessary to identify its provisions by reproducing the entire statute. It is provided under paragraph 34 and 35 of the labour (Amendment) Decree, 1969 (NLCD 342) that:

“34. (1) Where an organisation is closed down or where an organisation undergoes an arrangement or amalgamation and the close down, arrangement or amalgamation causes a severance of the legal relationship of employee and employer between any person and the organisation as it existed immediately before the close down, arrangement or amalgamation, then, if as a result of or in addition to such severance that person becomes unemployed or sufferes any dimunition in his terms and conditions of employment, he shall be entitled to be paid by the organisation in whose employment he was immediately before the close down, arrangement or amalgamation, compensation, in this Decree referred to as ‘severance pay.’

(2) In determining whether a person has suffered any diminution in his terms and conditions of employment under sub-paragraph (1) of this paragraph account shall be taken of the past services and accumulated benefits (if any) of such person in or in respect of his employment with the organisation before it was closed down or before the occurrence of the arrangement or amalgamation.

[p.496] of [1999-2000] 2 GLR 473

(35) The amount of any severance pay to be paid under paragraph 34 of this Decree as well as the terms under which payment is to be made shall be matters for negotiation between the employer or his representative and the employee or his representative.”

The legal submissions made by counsel for the respondents on the true or proper construction of the provisions of this Decree found favour with the learned trial High Court Judge. The following excerpts from the judgment appear at page 52 of the record of appeal:

“Under and by virtue of the Labour (Amendment) Decree, 1969 (NLCD 342), para 34(2), in determining the amount of any severance pay to be paid as severance award, account shall be taken of the past services and accumulated benefits (if any) of such person in or in respect of his employment with the organisation before it was closed down or before the occurrence of the arrangement or the amalgamation. Even though paragraph 35 of NLCD 342 makes the quantum of any severance award and the terms thereof to be subject of negotiation, the negotiation should be conducted bearing in mind the mandatory provisions of paragraph 34(2) of NLCD 342. Paragraph 34(2) of NLCD 342 makes no direct reference to employees who suffer total loss of employment like plaintiff in this case. Did the lawmakers intend to omit this class from benefiting or was it an inadvertent omission? Mr Jones Mensah submitted that it was an omission and that employees who suffer total loss were intended to benefit. He urged the court to so hold. I am persuaded that this is a fitting case to so hold.”

Counsel for the appellant company in his written statement of case argued together or simultaneously original grounds (A), (B) and (C) and additional grounds (1), (2) and (3). The first of the submissions was that the learned trial judge erred by holding that article 36 of the collective, agreement (exhibit A) was void as being inconsistent with the provisions of paragraphs 34 and 35 of the Labour Decree, 1967 (NLCD 157) as amended by the Labour (Amendment) Decree, 1969 (NLCD 342). This Decree has been reproduced above and it is clear that the sticking point or, to put it more robustly, the centrifugal point is paragraph 34(2) thereof.

[p.497] of [1999-2000] 2 GLR 473

Counsel for the appellant company argued that, upon a proper construction, the provision was clearly intended to prescribe a number of factors to be taken into account in determining whether a person who works in an organisation that has been closed down or has undergone reorganisation or amalgamation has suffered any dimunition in his terms and conditions of employment immediately before such closure or reorganisation or amalgamation. I wish to quote his submission as follows:

“Paragraph 34(2) as provided under NLCD 342 only preserves in simple terms the point of the proviso in the old paragraph 34, namely that in determining whether a person has suffered diminution in his terms or conditions of employment on account of an arrangement, amalgamation etc, account is to be taken of his past services and accumulated benefits (if any). The provision of paragraph 34(2), to repeat, is then to help determine who has suffered dimunition in his terms and conditions of employment such that he qualifies for severance pay.”

On the relevance of pre-enacting history as an aid to interpretation, he cited the case of United States of America Government v Jennings [1983] 1 AC 624 at 641 and Bennion on Statutory Interpretation (2nd ed) at pp 438-445. Arguing contrariwise, counsel for the respondents submitted in his statement of case the following:

“Thus, in the context of the phrase: ‘In determining whether a person has suffered any diminition in his terms and conditions of employment under subparagraph (1) of this paragraph,’ it makes sense if the word ‘whether’ is understood to read and mean ‘how much’ or the extent to which past service related to suffering. A meaningful rephrasing of the phrase in question in order to achieve the lawmaker’s intention will read as follows: ‘In determining to what extent or how much a person has suffered any diminution in his condition of employment, account shall be taken of past service.’”

In support of this submission, counsel referred the court to a number of legal authorities including Yorkshire Fire and Life Insurance Co v Clayton (1881) 8 QBD 421, CA; Curtis v Stovin (1889) 22 QBD 513; and Whitney v IRC [1926] AC 37. All these cases dealt with one fact or the other of the golden rule of [p.498] of [1999-2000] 2 GLR 473 statutory interpretation, with particular reference to the power of the court to modify a statute to achieve the apparent legislative intention. He cited other cases to the same effect, namely, Re Brockelbank; Ex parte Dunn & Raeburn (1889) 23 QBD 461; Lysom v Knowles (Andrews) & Sons Ltd; Stuart v Nixon [1901] AC 79 and last but not the least counsel referred to the learned commentary by Bimpong-Buta at page 36-42 of The Law of Interpretation in Ghana (1995) on the topic “Construction or Interpretation of Statutes.” The learned author quoted with approval a passage from the case Grey v Pearson (1957) HLC 61 at 106 where Lord Wensleydale stated that:

“In construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered, to unless that would lead to some absurdity, or some repugance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but to no farther.”

It could no doubt be appreciated that here Lord Wensleydale was virtually re-echoing the golden rule as enunciated by Parke B in Becke v Smith (1836) 2 M&W 191 at 195. Counsel for the appellant rejects the tendency to insert words into the Decree and cautions against it by a quotation from Cross’ Statutory Interpretation (3rd ed), p 99 that:

“The power to add to, alter or ignore statutory words is an extremely limited one. Generally speaking, it can only be exercised where there has been demonstrable mistake on the part of the drafter or where the consequence of applying the words in their ordinary, or discernible secondary, meaning would be utterly unreasonable.”

The contribution which counsel in this appeal have endeavoured to make to assist this court in finding the proper intention or object of the lawmaker in enacting paragraph 34(2) of NLCD 342 could be stated in a few words or statements. Counsel for the appellant contends that the sub-paragraph means exactly what the words used say and nothing else. He elaborates that all that the words mean is that they are intended as a factor or criterion for determining whether a particular worker has suffered a dimunition in his terms of employment. He says that once that issue is

[p.499] of [1999-2000] 2 GLR 473 determined, then that worker qualifies to be paid compensation or severance, otherwise he is not entitled. Where the worker passes that test, his right to demand his compensation accrues to him under paragraph 35 which provides that the amount of compensation shall be determined through negotiation by the accredited representatives of the workers on the one part and the employer on the other. Counsel for the respondents for his part contends that the sub-paragraph is a formula for determining “the extent to which or how much a person has suffered any diminution in his conditions of employment.” He argues that if the Decree says that past services should be taken into account in this determination, then it is the duty of the court to grant severance payment for past services to workers who lost their employment. By this argument he questions the legality of article 36 of the collective agreement, exhibit A, forcutting off the years prior to January 1991 and thereby depriving the job-losers their due compensation for their past services. In short, he contends that there is some injustice which cries for remedy and he implores this court to provide the remedy through the mechanism of statutory construction.

As is customary of me, I go back to basics, and my starting point is the principle or rule of statutory interpretation which insists that statutes must be looked at as a whole. This is the holistic approach. It requires that every paragraph or sub-paragraph of a statute is to be construed with reference to the other parts or paragraphs of the statute in order to make a consistent and homogenous enactment of the whole statute. This option requires that individual words or phrases or sentences which may occur in the statute must not be construed in isolation. Also, the meaning of one paragraph may have interaction with another and care must be taken to avoid ignoring such relationships if a true and correct meaning of the statute as a whole is to be achieved: see Asamoah v The Republic [1972] 1 GLR 117; Ababio v The Republic [1972] 1 GLR 347 and the English cases of Canada Sugar Refining Co Ltd v R [1898] AC 735 at 741, per Lord Derby. Fortunately, the brevity of the NLCD 342 has made it possible for me to reproduce all its parts. The next phase is the golden rule of interpretation, what I term the pious approach. In the celebrated English case of Becke v Smith (1836) 2 M&W 191 at 195 Parke B said:

“It is a very useful rule in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the

[p.500] of [1999-2000] 2 GLR 473 grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience but to no further.”

The golden rule was applied by our Court of Appeal in the case of Ghana Muslims Representative Council v Salifu [1975] 2 GLR 246, CA in the construction of the legislative object of the Trustees (Incorporation) Act, 1962 (Act 106). The Supreme Court used the rule in Essilfie v Anafo [1992] 2 GLR 654, SC to interpret the word “action” and whether “action” included an “appeal” within the purview of the Supreme Court Rules 1970 (CI 13), rr 13(1) and (2) and 66(1). The issue was whether a party whose appeal had been struck out for failure to file a statement of case within time could be granted extension of time to file the statement. Lastly, in another recent case, Quaynor v Quarshie, Court of Appeal, 3 February 2000, unreported, the Court of Appeal, construed the meaning of a child under eighteen years of age under section 13(1) of the Wills Act, 1971 (Act 360) to include a physically and mentally incapacitated child above the age of eighteen years to enable him benefit from a judicially-apportioned reasonable provision out of the estate of his deceased father who had disinherited him by his will. On the question as to the power of the court to incorporate into the body of an enactment words or phrases of its own for the purpose of advancing the perceived legislative intention so as to avoid injustice, let us examine and benefit from a statement by Taylor JSC (as he then was) in Sam v Comptroller of Customs and Excise [1971] 1 GLR 289 at 309 that:

“Apparently one can alter the words of a statute but this is a serious matter and it must be for only very cogent and limited reasons indeed. As Bramwell B said in Fredericks v Payne (1862) 1 H & C 584 at 589 (my emphasis): ‘The introduction of words into an Act of Parliament is open to serious objections, and should only be resorted to for the most cogent reasons, so as to avoid a repugnancy of construction’ or something which is opposed to good sense.”

The policy rationale behind this statutory judicial restraint is the acceptance of the presumption that the parliamentary draftsman has obsequiously reduced into writing exactly what the lawmaker

[p.501] of [1999-2000] 2 GLR 473 intended to convey by the statute and, further and more importantly, that Parliament will not intend what is unjust or inconvenient: see Artemiou v Procopiou [1966] 1 QB 878 at 888, per Danckwerts LJ and Maxwell on Interpretation of Statutes (12th ed) at p 199.

It follows therefore that where a party alleges that there is an omission or some other provision of a statute causes any ambiguity warranting alteration of a word, phrase or a sentence in the statute, the onus rests upon him to establish what in his view the true intention of the legislature is and to prove to the satisfaction of the court that such word, phrase or sentence used in the statute, is in conflict with the legislative intention and consequently repugnant to good sense and justice unless it is altered by the court. In my understanding of interpretation of statutes, it is a corollary to the liberal construction approach to restrict the interpreter to the meaning of the words and phrases used by the draftsman and to reject facile suggestions for insertions of extraneous matters; so it is a corollary to the general rule of liberal interpretation that there should be a degree of permissiveness to alter statutes, but the bottom line or the upshot of it all, in my view, must be not to arrive at a conclusion which would stultify the efficiency of legislation.

Armed with this background learning of the fundamental principles and rules of statutory interpretation and after due cogitation over the issues in this case, I would proceed to express my candid opinion on NLCD 342. The legislature of this country in its wisdom and with obvious interest in the welfare of the labour sector of the economy, identified two categories of workers and invested them with the right to compensation called “severance pay” under 34(1) of the NLCD 342. These two categories were: (1) those who lost their employment (ie job-losers) and (2) those who suffered any dimunition in their terms and conditions of employment as a result of any restructuring. To lose a job is to leave your office because your name is automatically deleted from the payroll. In short, you pack bag and baggage and go out to look for another employment or employ yourself somewhere or else starve to death. This is always the lot of a job-loser. These workers then have to get in touch with the appropriate authorities for the payment of their severance pay and if settled they go in peace. All they need to is to show the authorities that they were among those declared redundant as a result of the restructuring exercise. But the

[p.502] of [1999-2000] 2 GLR 473 position is not so simple and straightforward with the second category of workers.

Some preliminary and crucial exercise would have to be made before those persons are identified. On what basis or criterion can it be concluded that worker X or worker Y who has been retained in the new organisation has suffered any dimunition in his terms and conditions of service as a result of the new change? The most sensible approach is to compare the terms and conditions in his employment before the change with those of the new set up and to ascertain whether he has been worse off in any terms and conditions in the latter. If the answer is Yes, then he would have to be compensated by severance pay. This must be within the competence of experts in labour, industrial and employer-employee matters. In short, it is an administrative function for such experts either within or engaged externally by the new organisation. In my view, this is the task with which paragraph 34(2) of the NLCD 342 is concerned. The sub-paragraph, however, makes it mandatory that in determining whether a worker who has been retained has suffered a dimunition in his terms and conditions of service or employment in the new organisation are worse than they were before, account shall be taken of his past services and accumulated benefits. This is to say that account shall be taken of his past services and accumulated benefits along with the main considerations to be adopted for the determination of that issue of whether the particular worker has suffered any dimunition. I have never understood the sub-paragraph to be bearing a legislative object of determining the amount of compensation payable to persons who have suffered dimunition. The determination of the amount of such compensation squarely falls within the purview of paragraph 35 of the NLCD 342. Clearly, the learned trial judge made a detour and therefore erred grievously when she construed the subsection to be concerned with the determination of the amount of severance pay.

With this misconception of the law imperceptibly at the back of her mind, the learned trial judge’s misapprehension deepened into another error of thinking that there had been grave injustice meted out to those workers who had lost their jobs by the legislature, by omitting to enact a provision that the past services of such workers should also be taken into account. If some financial or other benefit had been given to those who suffered diminution but the total job losers had been denied a similar deal then of course one

[p.503] of [1999-2000] 2 GLR 473 could say that the legislature had omitted something crucial; but this is not the position with regard to paragraph 34(2) of NLCD 342. A recourse to the old law, that is the law as it was before the amendment, now subject of interpretation, would doubtlessly shed enormous light on the true interpretation of the amendment and to that end I reproduce the old paragraph 34 and 35 of NLCD 157 as follows:

“(34) (1) Where an organisation is closed down, or reorganised or amalgamated with another organisation under a new name or on a change of ownership, the workers in such organisation shall be entitled to severance pay for loss of employment:

Provided that no severance pay shall be payable to any worker in the case of a reorganisation or amalgamation where the new body arising out of the reorganisation or amalgamation undertakes to employ the worker on terms and conditions which are the same as, or more favourable to the worker than, the terms and conditions upon which the worker was employed immediately before the reorganisation or amalgamation, so, however, that account shall be taken of his past service and other accumulated benefits.

(35) The conditions under which severance pay, and the amount of such pay that, shall be payable, shall be matters for negotiation between the-employer or his representative and the worker or representative.”

It is crystal clear that the pre-amended law provided an answer for workers who had been retained in the new establishment but whose terms and conditions of employment had not suffered any dimunition. The answer was unambiguous, namely that they were not entitled to compensation. That was the proviso to paragraph 34 of NLCD 157. The converse of that provision was simple logic. It was that those who suffered diminution in their terms and conditions of employment as a result of the restructuring exercise qualified for payment of compensation. In the amended enactment or Decree the focus of attention was drawn to those of the latter category of workers because the case of those who would suffer no dimunition did not pose any problem requiring a procedure for its solution or determination. Accordingly, the proviso was redrafted in paragraph 34(2) of NLCD 342 in a simpler, clearer and comprehensive manner. The sub-paragraph was therefore intended

[p.504] of [1999-2000] 2 GLR 473 to serve as a mechanism whereby the status of those who would suffer diminution could be determined and their identity certified. It was not designed to serve as a measure for assessing the amount of compensation to be paid. This is because paragraph 35 of the old and the new law had been assigned that function. It would be, in my view, preposterous to impute to the legislature ignorance of the existence of paragraph 35 so as to say that it would create another mechanism for assessing the amount of compensation and still retain that paragraph 35 to which that function had already been assigned. To interpret sub-paragraph (2) of the NLCD 342 the way being canvassed by the respondents would result in a total truncation of the whole Decree because there would be two separate enactments, namely sub-paragraph (2) of paragraph 34 and paragraph 35 both invested with power to assess amount of compensation, one for those who suffer diminition as well as those who lose their employment. In my judgment, arrived at by a very careful and meticulous study of the words in the two Decrees, NLCD 157 and NLCD 342, this would be tantamount to creating artificial and needles duplications on the enactments which could be a recipe for disaster of epoch-making dimension in the task of statutory construction in our courts.

On this vexed question of past services and accumulated benefits being taken into account, I may per force venture some suggested illustrations. In her judgment (vide page 48 of the record of appeal), the learned trial stated as follows:

“The plaintiffs admitted that they received their end-of-service benefits under cross-examination. Evidence was also led to show that the bargains were done on behalf of the parties by their accredited representatives.”

Touching on end of-service benefits, the position would be that those who lost their jobs got these benefits, paid to them. Those who were retained would not be given these benefits because the period for payment would not be due. It is precisely these benefits yet unpaid but which might have accumulated which the paragraph 34(2) of the NLCD 342 has in contemplation. They would have to be taken into account in determining whether a particular worker has suffered any diminution in his terms and conditions of employment and the approach would be to compare these figures to the new ones to be carried forward in the new establishment. Also in my view, the phrase “past services” does not necessarily

[p.505] of [1999-2000] 2 GLR 473 refer to the number of years that the worker has served the organisation. It refers to the nature of his past service and the capacities in which he performed those services as well as the remuneration or other advantages in cash or in kind that those services attracted. All these would be assessed vis-a-vis the worker’s new terms and conditions to determine whether he has been worse off by the new changes, before he qualifies to be given compensation for the set back.

The grievance which the respondents harboured in their sleeves may not be unreasonable and they cannot be blamed for taking steps to vent their complaint; but it seems to me that the target to which these grievances ought to be directed are the representatives who negotiated the amount of severance pay and who in the process deprived them of benefit for the period prior to January 1991. That matter is not an issue before this court and I should for the moment hold my peace in that regard.

What the learned trial judge lost sight of in my view was that those workers, if any, who might have suffered any dimunition in their terms and conditions of service were equally to be affected by the reduction of the period for which severance pay was to be paid in terms of article 36 of the collective agreement, exhibit A. It would therefore be wrong for the learned trial judge to interpret section 34(2) to give the impression that those who suffered a dimunition were exempted from the application of article 36 and that they had an advantage over total job losers. In my view therefore in much as the learned trial judge held that the agreement reached by the negotiation team representing both employer and employers was inconsistent with paragraph 34(2) of the NLCD 342, she erred.

In view of the conclusion that I have come to in respect of the true meaning of paragraph 34(2) of the NLCD 342 which was the basis of the whole action, the other grounds of appeal are rendered nugatory. In the result the appeal is allowed and the judgment of the court below is hereby set aside.

Appeal allowed.

LSNA