EBENEZER AYENSU VS MR DAVID ASAMOAH BOADI & ANOR (H1/206/2021) [2022] GHACA 160 (7 July 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA – GHANA AD 2022 CORAM: 1. SUURBAAREH, J. A (PRESIDING) 2. M. WOOD (MRS), J. A 3. BARTELS-KODWO (MRS), J. A CIVIL APPEAL NO H1/206/2021 DATE: THURSDAY, 7TH JULY, 2022 EBENEZER AYENSU == PLAINTIFF/APPELLANT VRS MR DAVID ASAMOAH BOADI MR MICHAEL EDWIN BREFO == DEFENDANTS/ RESPONDENTS ========================================================== JUDGMENT ========================================================== MERLEY WOOD, JA The Plaintiff/Appellant, an electrician, was recruited from Ghana with nine others to work in Liberia at the expense of the contractor Neutral Link Engineering (NLE) for a year from 1st August 2012 to 31st July 2013 to check illegal electrical connections on meters. The Plaintiff avers that he fractured his left femur whilst at work on 19th February 2013 and thus had surgery on it and another surgery on 3rd July 2013 at the John F. Kennedy Center (JFK) where a plate and screws were implanted in the said thigh when it broke again. Consequent upon his injury, he was unable to walk, so he was kept in the house rented for all the artisans by his employer. His monthly salary of Four Hundred Dollars ($400) was reduced to Three Hundred and Fifty Dollars ($350) by his employer when he got injured and could no longer work and he even had to employ a caregiver whom he paid One Hundred Dollars ($100) for a fortnight. The Plaintiff’s case is that the Defendants not only kept his passport but abandoned him and refused to have the implants which had to be removed within a specific time taken out. According to him, upon the outbreak of Ebola, the Defendants failed, refused or neglected to ensure his safety and repatriation to Ghana in accordance with the terms of the contract. Accordingly, the Plaintiff/Appellant by his Writ of Summons and Statement of Claim filed on 13th April 2016 claimed as follows: 1. “An order to Defendants to take care of Plaintiff’s medical treatment following his engagement by Defendants to work in Liberia in the course of which he broke his thigh which now has a metal implanted which is overdue for removal. 2. 1 Million US Dollars for injuries suffered upon his engagement by the Defendants as an artisan to work for Defendants in Liberia and other expenses incurred till his return on 3rd July 2015 which covers: (a) Pain & suffering (b) Loss of blood == USD300,000.00 == USD200,000.00 (c) Transportation and repatriation from Liberia (d) Loss of amenities == == USD100,000.00 USD400,000.00 3. 3% interest on LIBOR OR 30% on the Ghana Cedi Equivalent 4. Costs” The 2nd Defendant/Respondent in his Statement of Defence denied all the material averments. He avers that the injury sustained on 12th February 2013 is statute barred per the provisions of Limitations Act, 1972 (NRCD 54). It is his case in pleading that in February 2013, following the injury of the Plaintiff he was taken care of by the Group Life and Medical Insurance policy provided by Liberia Electricity Corporation (LEC) as stipulated in the terms of engagement. And that even though the implant was scheduled to be removed in July 2014, at the onset of the ebola virus, the JFK Hospital which was supposed to perform the surgery was closed down. However, he pleads that the Plaintiff insisted that he will have the implant removed at the 37 Military Hospital and since it was the LEC who was funding the Plaintiff’s treatment and travelling costs and considering the fact that the Plaintiff’s insistence was contrary to the doctor’s recommendation, management of NLE asked the Plaintiff to put his concerns and request in writing for the records. It is his case in pleading that the Plaintiff spurned the request even after his sister was called upon to intervene and remained obstinate and refused to put his request in writing for his referral and transportation to the 37 Military Hospital. That he received the best of care and treatment and even though the engagement was for one year, he remained on the payroll of NLE until May 2015 when all contracts with LEC had expired. He also averred that the passports of all the artisans were taken to procure residence and work permits for them. The defence of the 1st Defendant also says that the action is statute barred. He pleads amongst others that at the outbreak of ebola, the Plaintiff was insistent on travelling to Ghana for the surgery despite doctors recommendations and failing to put his request and concerns into writing. Also, he failed to put same into writing as requested by Ghana Mission in Liberia. He avers that the Plaintiff abandoned the group house and remained incommunicado with management of NLE or LEC until his lawyers wrote to the management of LEC in 2016. Henceforth, the Plaintiff/Appellant will be referred to alternately as Plaintiff or Appellant while the Defendants/Respondents will also alternately be referred to as Defendants or Respondents. After a full trial, the learned trial judge in her judgment found from pages 158 to 176 of the Record of Appeal held that the Plaintiff’s action was statute barred because the Plaintiff suffered his injury in February 2013 and further that the Defendant did not abandon the Plaintiff when he got injured but rather the Plaintiff rejected the attempts to get him treated by the removal of the metal implant in his thigh. She further held at page 176 of the Record of appeal that she was “unable to say that the Defendants abandoned the Plaintiff when he got injured. Rather the Plaintiff rejected Defendants attempts to get him treated by removal of the metal implant in the thigh…….. Having failed to corporate (sic) with the Defendants regarding his health requirements, I fail to see any legal basis or justification for making the order of the Plaintiff seeks.” The Plaintiff /Appellant who was aggrieved by and dissatisfied with the judgment of the High Court, Accra delivered on 29th March 2018 mounted this appeal as per a Notice of Appeal dated 22nd April 2015 the grounds of which are as follows: 1. “The learned Justice of the High Court misdirected herself in law when she considered every head of Plaintiff/Appellant’s claim statute barred including liability of an employer in respect of transport and repatriation of an employee on a foreign contract at the end of his service. 2. The learned judge erred in law when she declared the Plaintiff’s claims statute barred under the Limitation Act 1972 (NRCD 54) without any regard for Section 16 of the same Law which extends the right of action for disability or incapacitation of the Plaintiff/Appellant as disabled and incapacitated. 3. The learned Judge also misdirected herself and fell into an error of law as she failed to consider the claim as falling under the 1992 Constitution on Fundamental Human Rights Article 21(1) as well as the Labour Act 2003 Act 651, Section 118(1) and Labour Regulations 2007 LI.1833 Regulation 18. 4. The learned Judge erred in law resulting in miscarriage of Justice when she applied a quotation from 68 Virginia Law Review without sufficiently acknowledging the Publisher for verification but based her decision on a quotation irrelevant to instant case, where the parties had been in communication till the break in same from Defendants attitude. 5. The judgment is against the weight of evidence. 6. Other grounds of appeal may be filed by leave of the Court on receipt of the Record of Appeal.” It is noted for the record that no additional grounds of Appeal were filed. The relief sought from the Court of Appeal is to reverse the judgment/decision of the High Court and to enter a judgment for the Plaintiff/Appellant on his claims. In arguing Ground 1, Counsel for the Plaintiff/Appellant submitted that Regulation 36(1) of Labour Regulations LI 1833 provides that an employee engaged under a foreign contract and the member to the employee’s family authorized to accompany the worker to the place of employment shall be repatriated at the expense of the employer under certain circumstances. That being the legal provision, he submits that the Appellant should have been repatriated to Ghana by his employer just as the other artisans at the end of the service were repatriated home. Regarding Ground 2, it is the submission of Counsel for the Appellant that since the Plaintiff was disabled and on a foreign contract the limitation period stipulated by NRCD 54 does not apply. He further contended that by section 17 of NRCD 54, the Plaintiff’s employer was aware of his disability and thus put pressure on him to undergo surgery in Liberia. Again, with the employer having acknowledged the Plaintiff’s position and the debts he has to pay for medical treatment, the Plaintiff should be exempted from the Statute’s restriction. Pertaining to Ground 3, it is the contention of Counsel that Article 21(1) of the 1992 Constitution, and Section 118(1) of the Labour Act 2003, (Act 651) it was the duty of the employer to provide and maintain the workplace and system of work safe without risk to the employee, and that the employer never demonstrated any supervision to ensure these. Again per Regulation 18 of the Labour Regulations 2007 LI 1833, Counsel argues that the employer never established that he sought approvals from the Chief Labour Officer in this matter before he carried the staff to Liberia for work and therefore he should not benefit from his wrong action. On Ground 4, Counsel submitted that even though each of the nine artisans was given a ticket and his passport to bring them back to Ghana, the Plaintiff was told that his name was not on the list. Counsel for the Respondent on the other hand in response submits that the Plaintiff’s reliance on Regulation 36(1) of the Labour Regulations, 2007 (LI 1833) is misconceived. It is his argument that as provided under regulation 36(1) and (3) assuming without admitting that there was a failure on the part of the Defendants to repatriate the Plaintiff, it constituted an offence within the purview of the Attorney General and not a basis for a civil liability claim. Furthermore, he argues that the issue of an offence under regulation 37(1)(b) does not arise because payment of repatriation expenses is exempted where the worker voluntarily failed to exercise the right to repatriation before the expiry of three months from the date of expiry or termination of the employment. It is the submission of counsel that since the Plaintiff was not willing to put his request in writing it can be argued that he voluntarily failed or refused to exercise the right of repatriation as contemplated under the said regulation. Again, it is his view that the Plaintiff’s claim for transport and repatriation fell under special damages and the judge was right to say that the claim was statute barred in accordance with section 3 of NRCD 54. It is Counsel’s submission that since the action was for damages, it could only be sustained if there was some breach by the Defendants of a duty owed him which led to his injuries, having instituted the action on 13th April 2016, more than three years after the occurrence of the injury. He refers to the cases of Ebusuapanyin Yaw Stephens vrs Kwesi Apoh [2012]2MLRG 12 at 26; and Hilton vrs Sutton System Laundry [1946] KB 65 at 73. Counsel further argued that assuming without admitting that the Plaintiff was entitled to payment of repatriation, he should have specifically pleaded, particularise and the damages proven. He cites the case of Delmas Agency vrs Food Distributors [2007-2008] SCGLR 748; Ankomah vrs City Investment Company Ltd. [2012] 2 SCGLR 1123; and Chahin and Sons vrs Epope Printing Press [1963]1 GLR 163. Having failed to also adduce any evidence regarding the claim for transportation and repatriation, there is no justification for his claim under this ground of appeal. Pertaining to Ground 2, Counsel contends that this ground was misconstrued when Counsel on the other side referred to Sections 17 and 18 of NRCD 54 to say that the limitation period ought not to apply to him. According to his submissions the said sections extend the limitation period only where there is a disability which is defined as the person is an infant or of unsound mind. Since the Plaintiff does not fall into such, this, category of the section will not avail him. Also, section 17(1)(a) to (i) of NRCD 54 which provide for situations that relate to debt, mortgage, interest in land and liens to trigger anew the computation of the limitation period, does not cover personal injuries and therefore does not avail the Plaintiff. It is the contention of the Counsel that to be effective, an acknowledgement has to be in writing and signed by the maker but this was not the case on the part of the Plaintiff. Regarding Ground 3, it is the submission of Counsel for the Respondent that neither did the Statement of Claim disclose that the action was being brought in the enforcement of the human rights of the Plaintiff nor did he give any particulars concerning Section 118(1) of the Labour Act, 2003 (Act 651) on the duty of the employer and the breach of the said duty as he was required to do. This undermined the essence of pleading as stipulated in the cases of Accra-Tema City Council vrs Ntim [1969] CC 62 and Hammond vrs Odoi [1982] GLR 1215 at 1235. Counsel further argued that the Plaintiff offered no evidence whatsoever concerning these breaches such as the absence of competent staff, absence of adequate material and or absence of a safe system of work as held in the case of Wilson & Clyde Co. Ltd vrs English [1938] AC 57 and Issah vrs Mim Timber [1980]GLR 430. With regards to Ground 4 which is the omnibus ground, Counsel submits that the Appellant has a duty to sufficiently point out the lapses in the judgment and or the analysis thereof to demonstrate the allegations and relied on the cases of Djin vrs Musah Baako [2007-2008] SCGLR 686 and Agyenim Boateng vrs Ofori and Yeboah [2010] SCGLR 861. This he says the Plaintiff failed to do and therefore fails under this ground of appeal. Should the appeal succeed? Ground 1: The learned Justice of the High Court misdirected herself in law when she considered every head of Plaintiff/Appellant’s claim statute barred including liability of an employer in respect of transport and repatriation of an employee on a foreign contract at the end of his service. The Plaintiff claims compensation for injuries he suffered during his stay in Liberia. However such actions should be brought within three years from the date on which the cause of action accrued. Section 3 of NRCD 54 provides thus: (1) “An action claiming damages for negligence, nuisance or breach of duty (howsoever the duty exists), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued.” This means that damages for negligence, nuisance or breach of duty in respect of personal injuries shall be brought before the expiration of three years. The rationale or policy for the limitation is found in the Memorandum to the Limitation Act, 1972 (Act 54) which stipulates that “the limitation of actions is a public policy which provides for the automatic limitation of litigation after a fixed period of time. After the statutory period a person’s right of action is barred, and sometimes his title is extinguished.” In the instant case, the Plaintiff in his Reply explained that when treatment for the first injury was on going, he suffered a second injury. Exhibit 3 dated 8th March 2013 as found by the learned trial judge confirmed that while working for the Defendants, he fell and injured himself on 19th February 2013 and again on 3rd July 2013. From the Plaintiff’s own showing, he underwent two surgical operations. We agree with the learned trial judge when she held that from the facts and evidence, the wrong and the injury coincided at the same time which is the 19th February 2013. That being the case, the action should have been brought by 18th February 2016. She added at page 169 of the Record of Appeal that the Plaintiff’s action seeking damages in respect of the personal injury sustained is statute barred because it was not brought within the stipulated three years. This court is however not in agreement with her when she held at page 169 of the Record of Appeal that “Additionally, the claim for transport and repatriation from Liberia are special damages and being damages are caught by Statute of Limitation” and thus not entitled to reliefs 2, 3 and 4. We say so for the following reasons. The Plaintiff/Appellant in paragraphs 12, 22, 24 and 28 of his evidence in chief as per his witness statement found at pages 53 to 55 of the Record of Appeal states thus: Paragraph 12 “Thus the ebola disease broke out. Even in my state of health I was not repatriated though I was anxious to return to Ghana. I was abandoned to my fate. I struggled to reach Ghana with the metal implant and all the risks and inconvenience. I have not fully recovered and continue to experience the inconvenience and pain as well as the psychological or emotional feeling towards the implant now overdue for removal when I am struggling to feed myself without any work because I am virtually disabled.” Paragraph 22 “My passport was with the Defendants who would not release it to enable me to return to Ghana in the fastest mode possible. The metal implant in my thigh causes me great concern even now.” Paragraph 24 “When my colleagues were returning to Ghana on a flight I attempted to join them but was refused the opportunity because I had no ticket or passport from the Defendant.” Paragraph 28 “When Defendants were flying my colleague artisans were out of Liberia, I could not be put on the flight the Defendants kept my passport and would not give me a ticket.” Exhibit C dated 4th January 2015 (page 185 of the Record of appeal) is a letter to the Plaintiff informing him that Neutral Link Engineering wishes to refer him to 37 Military Hospital to have the implant removed. In paragraph 17 of the witness statement of the 2nd Defendant found at page 60 of the Record of Appeal he states thus: “Unfortunately sometime in May 2015, Plaintiff vacated the group house without informing anyone of his whereabouts and he could not be traced for any further action to be taken to remove the implant. Investigations revealed that he had gone to join his Liberian girlfriend somewhere in Liberia. Plaintiff after leaving the group house on his own volition remained incommunicado with the management of NLE or LEC until his lawyers wrote to the management of LEC in 2016. It is not true that the Plaintiff was sacked from the group accommodation.” The Defendants from the evidence adduced are saying that they were unable to repatriate him because he refused to put into writing his decision to have the operation for the removal of the metal in his thigh at the 37 Military Hospital in Ghana. This led to the Plaintiff leaving the group accommodation and so they lost touch with him. The Defendants are also saying that they do not know how he got to Ghana because he remained incommunicado with management of NLE and LEC after he left the group house. However, Regulation 36(1) of the Labour Regulations LI 1833 provides that subject to sub-regulation (3) of regulation 31, an employee engaged under a foreign contract and the member of the employee’s family authorized to accompany the worker to the place of employment shall be repatriated at the expense of the employer in the following circumstances: “(a). On the incapacity of the worker through sickness or accident during the journey to the place of employment. (b). On the worker being found on medical examination to be unfit for employment. (c). On the expiration of the period of employment. (d). On the termination of the employment because of the inability of the employer to fulfill the undertakings in the contract. (e). On the termination of the employment because of the inability of the worker to fulfill the undertakings of the contract owing to sickness or accident. (f). On the termination of the employment by mutual agreement between the employer and the worker unless the agreement otherwise provides. (g). On the termination of the employment by the employer or the employee where the Chief Labour Officer of a Labour Officer directs in writing or (h). Any other cause occurring in the course of the worker’s employment. (2) The family member of a worker authorised to accompany the worker to the place of employment shall be repatriated at the expense of the employee when the worker dies during the journey to the place of employment or during the course of the worker’s employment, (3) An employer who contravenes sub-regulations (1) and (2) commits an offence.” Repatriation is therefore to be at the expense of the employer. However, there are exemptions from payment of repatriation expenses. Section 37 exempts an employer when the Chief Labour Officer is satisfied that the worker has declared in writing or signified that he does not wish to exercise his right to repatriation and he has been settled at his own request or that “the worker voluntarily failed to exercise the right to repatriation before the expiry of three months from the date of expiry or termination of the employment.” In the written submission of the Respondent Counsel argues that the Plaintiff by his actions voluntarily failed to exercise the right to repatriation. He also argues that the claim for repatriation amounts to special damages and therefore it should be pleaded, particularized and proved. It is our view that the Defendants could have left the Plaintiff’s ticket and passport at the LEC office to indicate their willingness and preparedness to repatriate him to Ghana. They failed to leave his ticket and passport at the LEC office in spite the fact that the Plaintiff refused or failed to put into writing his intention of having the metal removed at 37 Military Hospital. Our view is buttressed by Section 18(1)(d) of the Labour Act, 2003 (Act 651) which provides that when a contract of employment is terminated as under section 15(e) due to sickness or accident in case of foreign contract, the expenses and necessities for the journey and repatriation expenses in respect of the worker and addition to any or all of the payments specified shall be paid to the worker. It is also our view that even though the Defendants had made arrangements to have the metal removed at the Hope for Women International Hospital INC and two cheques had been issued in their name by Accident and Casualty Insurance Company and Liberia Electricity Company and the Plaintiff failed to take advantage of it, it is the duty of the Defendants to pay for its removal. Ground 4 1. The judgment is against the weight of evidence. Per Rule 8(1) of the Court of Appeal Rules, CI 19, an appeal by this Court is by way of rehearing. A complaint that a judgment is against the weight of the evidence, empowers the court exercising an appellate jurisdiction to evaluate the evidence led, and come to its conclusions in support of, or against the trial court’s findings. See Oppong Kofi and Ors vrs Attibrukusu III [2011] 1 SCGLR 176. As stated in the case of Djin vrs Musah Baako [2007-2008] SCGLR 686 the onus is on a complainant or Appellant who invokes this omnibus ground to demonstrate to the appellate court the lapses in the judgment being appealed against. Counsel’s submission was “The Respondent gave the passport to Plaintiff at the High Court, Accra. He went to the plane that was bringing back the 9 artisans. Each got a ticket and passport. Plaintiff was told his name was not on the list. Yorke did not give in (sic) passport.” Even though Counsel did not point out the lapses under this ground, this Court is of the view that apart from the claim for transport and repatriation all the others are statute barred. Consequently, the claim for transportation and repatriation from Liberia succeeds. However, there is no evidence to indicate how the amount of One Hundred Thousand United States Dollars ($100,000.00) was computed to arrive at that figure. Considering the air fare and the failure of the Defendants to repatriate the Plaintiff, and he had to come by land and suffer all the inconvenience with his state of disability, and the fact that the metal implant has to be removed, we award the sum of Two Hundred Thousand Ghana Cedis (GHȼ200,000.00). The appeal succeeds in part. Cost of Twenty Thousand Ghana Cedis (GHȼ20,000.00) awarded in favour of the Plaintiff/Appellant against the Defendants/Respondents. (Sgd) Merley A. Wood (Mrs.) (Justice of Appeal) I Agree G. S. Suurbaareh (Justice of Appeal) (Sgd) I Also Agree Janapare A. Bartels-Kodwo (Mrs.) (Sgd) (Justice of Appeal) ➢ Joseph Aryitey for Plaintiff/Appellant ➢ Seyram Darbi for Defendants/Respondents 16