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- IN THE SUPERIOR COURT OF JUDICATURE
SUPREME COURT OF GHANA
ACCRA
CORAM: ATUGUBA, JSC. (PRESIDING)
ANSAH, JSC
OWUSU (MS), JSC
GBADEGBE, JSC
AKOTO-BAMFO (MRS), JSC
CIVIL APPEAL
NO. J 4 /52 / 2011
22 ND^ JUNE, 2011
LABOUR COMMISSION - - - PLAINTIFF
VRS
CROCODILE MATCHET - - - DEFENDANT
J U D G M E N T.
ANSAH, JSC;
This action was commenced under the Labour Act of 2003, Act 651, when on 18 August 2006, the National Labour Commission filed a motion for an order to compel Crocodile Matchets Ghana Ltd. to comply with its orders made on 20th^ April 2006. The action was founded on section 172 of the Labour Act of 2003, (Act 651)
The facts which have ended in this appeal and which are deduced from and formed the case of the appellant Commission were that one James Agyemang Badu and five others, who until 19- 12 - 2005 were employees of the Crocodile Matchets Factory, complained to the National Labour Commission of unfair and unlawful termination of their employment. They proceeded under section 64 (1) of the Act. The section read: 64 Remedies for unfair termination. (1) A worker who claims that the employment of the worker has been unfairly terminated by the workers employer may present a complaint to the Commission.” The Commission sent copies of the petition to ‘Crocodile Matchets’ for their comments, after which the parties were summoned to the Commission for a hearing. Two persons namely, Mr. Danso-Acheampong the deputy or vice-chairperson of the Commission and Opanin Obeng Fosu both representing the Commission, sat to hear the petition, after which they found the termination of appointments of the five employees to have been unfair and wrongful and made some consequential orders against the Company. The Company refused to comply with them thus prompting the National Labor Commission, acting under Section 172 of the Labor Act,
Matchets (GH) Ltd under Section 141 (1) and (2) of Act 651 could not have represented the Appellant Commission because the two did not form a quorum of 5 as mandated under Section 140 (3) of Act 651. 2 That the Court of Appeal erred when it doubted the competency of the Appellant to delegate its judicial function notwithstanding the express provision for delegation under Section 141 (2) of Act 651. 3 That the Court of Appeal erred when it held that even if the Appellant could delegate its judicial function, there was nothing in the record showing that the Appellant commission formed a committee to determine the petition against the Respondent. 4 The Court of Appeal erred by holding that the hearing proceedings which was captioned minutes by the recorder was of no legal effect because it was neither signed nor certified notwithstanding the fact that the Respondent never filed an affidavit in the trial High Court to dispute the content of the hearing proceedings dated 10th^ April 2006.” In its statement of case, the appellant argued grounds 1 and 2 of appeal together. These grounds complained against firstly, the conclusion by the Court of Appeal that there was no proper quorum for the Commission
which sat to perform its function and secondly the competence of the Commission to delegate its functions. An appeal against a decision of the Court of Appeal to this court is as is well known, by way of a rehearing both on the facts and the law and this court is obliged to thoroughly sift the record to see whether or not the facts and conclusions are well supported by the evidence on record and construction put on documents are proper and maintainable. The second ground of appeal deserves an early treatment as it concerns the jurisdiction of the Committee to hear the petition. The issue was about the Appellant’s competence to delegate its functions to the committee which made the orders sought to be enforced at the High Court and which gave rise to these proceedings. The first ground of appeal brought Sections 140 (1) and (2) of Act 651 into focus. I am of the opinion that the first and second grounds of appeal quoted above call for a study of the Labour Act, 1993, (Act 651) (herein after called the Act). The basic principle in construing a statute is that it shall be read as a whole to discover its meaning. Its provisions are to be purposively construed to
Section 135 of the Act established the National Labor Commission (hereinafter called the Commission), whereas Section 138 of the Act assigned specific functions to the commission. The section was as follows: “138 Functions and independence of the Commission (1) The functions of the Commission are,
(a) to facilitate the settlement of industrial disputes;
(b) to settle industrial dispute;
(c) to investigate labour related complaints, in particular unfair labor practices, and take such steps as it considers necessary to prevent labor disputes; (d) to maintain a data base of qualified persons to serve as mediators and administrators (e) to promote effective cooperation between labor and management and (f) to perform any other function conferred on it under this Act or any other enactment” (emphasis supplied) Section 140 (1) said specifically that:
“ 140 Meetings of the Commission
(1)The Commission shall meet to settle industrial dispute, but shall meet at least once in every two months to consider matters affecting its administration and the performance of its functions. (3) The quorum at a meeting of the Commission shall consist of the chairperson and four other members of the Commission at least one person each representing Government, employees’ organization, and organized labour.” ‘Industrial dispute’ was also defined in clear terms in the interpretation section of the Act, (section 175), as follows: “ industrial dispute” means a dispute between an employee and one or more workers or between workers and workers which relates to the terms and conditions of employment, the physical condition in which workers are required to work, the employment and non-employment or termination or suspension or termination or suspension of employment of one or more workers and the social and economic interests, of the workers but does not include a matter concerning the interpretation of this Act, a collective agreement or a matter which by agreement between the parties to a collective agreement or contract of employment or contract
(a) a standing committee consisting of members of the Commission, or, (b) an ad hoc committee consisting of non-members or both members and non-members of the Commission, as the Commission considers necessary for the efficient performance of its functions.
(2) The Commission shall assign to any of its committees any of its
functions that it may determine.”
Thus under the Act, Committees may be appointed to which the Commission may assign or delegate its functions to perform in the interest of the efficient performance of its functions. The composition of the Commission qua commission at a meeting to settle an industrial dispute, as stated above, is five (5). “144 Regional and district committees of the Commission The Commission has committees at the Regional and District levels. The composition of each of these committees was also provided in section 144 of the Act; thus section 144 (1) and (2) provided that: (1) Despite section 141, the Commission may establish as it considers necessary regional and district labour committees.
“(2) The composition of a regional or district labor committee shall be determined by the Commission except that there shall be equal representation of Government, organized labor and employers’ organizations”. Inferentially, the composition (number) was tripartite and equally represented; they perform such functions in the Region or district as are assigned to it in writing by the Commission, under Section 145. The combined effect of sections 141 (1) and (2) is that the commission has the power to appoint standing or ad hoc committees and assign any of its functions to it. The commission also has regional and district labour committees and the power to assign any of its functions to them.
164. Compulsory references to arbitration.
Under the Act, the mode of settlement of industrial disputes was covered by Sections 153 and 154 and is by Negotiation and Mediation respectively while Arbitration as a mode was provided for by sections 164 to 167 of the Act. Section 160 (2) and 162 generally mentioned that where an industrial dispute has resulted in a strike and lock out which was unresolved within
function assigned to it by the Commission if it was ever so assigned to them? The answer was emphatically in the negative. Reading the Act as a whole nowhere was any provision made to ordain or sanction the composition of a two-member committee to exercise the functions for and on behalf of the Commission. The provisions on the quorum representing as it were the Government, employers organization, and organized labor, need not be questioned, for the policy rationale is not far to see – to make sure that all possible areas of controversy are covered and all interests or stakeholders adequately represented so that an eventual solution is accepted as having been made by all but not by a selected few; no one side can complain it was excluded. That in my considered opinion is why when it came to the functions the provisions of sections 140 to 143 (supra) apply to the Commission, a regional or district labour committees mutatis mutandi. The construction of provisions of an Act like Act 651 enacted to amend and consolidate the laws relating to labour and industrial relations and establish a National Labor Commission must be done purposively as the labor front is volatile and a veritable powder keg; a tiny spark of error in applying any
of the provisions is enough to explode or implode the front, resulting in an inferno. The two-man committee that sat to settle the industrial dispute was like a three or five legged object with some legs missing; it is next to an impossibility that it can stand; it will certainly collapse. The composition of the two-man panel that sat to hear the petition was not well founded; it was not justified either under Section 140 (3) of the Act, it required a quorum of the chairperson, and four (4) other members of the Commission to sit and hear the petition, or any of the quorum specifically provided for in the Act. Upon this analysis of the relevant provisions of the Act, the Court of Appeal stated in its judgment that “the quorum at a meeting of members of the respondent commission in the performance of their judicial administrative and other functions is as stated in section 140 (3) of Act 651, five persons representing government, employers and organized labor including either the chairperson or deputy chairperson of the respondent commission.” I think the Court of Appeal came to the right conclusion and its conclusion and reasoning are affirmed. The first ground of appeal is therefore dismissed.
the worker and to decide whether or not to deprive him of his employment and livelihood. That of course is judicial in nature.
In the Barnard case (supra), Denning LJ said at 40 that: “While an
administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication.” These decisions though not binding on this court, nevertheless, are persuasive that a body to which powers are delegated to exercise must keep within the scope allotted to them by the enabling legislation; if they do not do so, whatever would come out of their actions may be labeled ultra vires. In this case, the appellant commission sat to settle an industrial dispute statutorily defined; in doing so the appellant was clothed with the powers of a High Court; enforce the attendance of witnesses, and examine them on oath, affirmation or otherwise, compelling the production of documents, and in respect of its proceedings enjoy the same privileges and immunities pertaining to proceedings in the High Court: see the powers of the commission under section 139 (1), (2) and (3) of the Act.
In exercising these powers in settling industrial disputes by any of the modes of settlement recognized by the Act, be it negotiation, mediation or compulsory arbitration, the commission may receive complaints from affected workers, exercise the powers entrusted to it by statute, take viva voce evidence or documents, make a determination one way or the other, publish an award in favor of the victorious party; the commission will be performing a judicial function. In such situations where a judicial function has to be performed, Parliament must be presumed not to have contemplated delegation or assignment of the power to any other person or group of persons. But this is not an inflexible rule and it admits of exceptions. It lies within the powers of Parliament to allow the body entrusted with the exercise of judicial power to assign or delegate those powers to be exercised by any other body (other than the one to which it has been created, permitted or named to perform it), judicial or otherwise. But then, where that is so Parliament must confer the judicial power in express and mandatory terms. That must also be found or be discernible within the four corners of the enabling statute.
///Thus, the Commission has the express Statutory power to assign such of its functions to a committee as it may determine, standing or ad hoc. Therefore it was wrong for the Court of Appeal to hold that “there was nothing to show that the respondent-Commission formed a committee of whatever nature or scope to deal with the complaint made against the appellant.” The Court of Appeal did not think it necessary to determine whether the respondent Commission might competently delegate its judicial function or not. The Court was satisfied to hold that there was no evidence any committee was formed to deal with the complaint. In the result it abandoned its duty to determine the salient issue of whether or not the commission could competently delegate its judicial duty to any committee. I think I have said enough to show my disapproval of the stand taken by the Court and that under the relevant provisions of the Act, the commission was competent to delegate its judicial functions to the committee as it did. The respondent appeared before the committee, took part in the proceedings without ever raising any questions about its formation. If the respondent had any doubts about the formation of the committee it should have raised it timeously, that was before, during or at the hearing or on appeal to the highest court as it was all a matter of
jurisdiction. As that was not done a rebuttable presumption in section 37 of
the Evidence Decree 1975, NRCD 323 would be raised for: ‘ Omnia
praesumuntur rite et solemniter esse acta’ , that was to say, all things are
presumed to be done in proper and regularly with the due formality until the contrary is proved. The crux of this opinion is that it is important to hold that where statute had provided for the quorum needed to perform a function, a strict compliance with the terms of the provision was required. That was decisive of the present appeal. The fourth ground of appeal does not merit any lengthy consideration; it has to be dismissed as counsel for the appellant submitted that the Court of Appeal did not make any definitive pronouncement on the issue that the minutes by the recorder was of no legal effect for it was not signed. Counsel readily apologized for inadvertently raising an issue of that point. At any rate the criticism was wrongly made for it was crystal clear from the record that the minutes for the hearing in the matter between James Agyemang Badu, Norbert Amediku and Phidelis Kodzie and Crocodile Matchets (GH) Ltd held on 10th^ April 2006, was duly signed by Kwasi Danso-Acheampong.
