DENNISLAW [2019]DLSC6496

JAMES DAVID BROWN

(PETITIONER/APPELLANT/APPELLANT)

vs.

THE NATIONAL LABOUR COMMISSION (1

RESPONDENT/RESPONDENT/RESPONDENT) AND AHANTAMAN RURAL
BANK LTD. (2 RESPONDENT/RESPONDENT/RESPONDENT)

[SUPREME COURT, ACCRA]

CIVIL APPEALNO. J4/74/2018

DATE: 19 JUNE, 2019

COUNSEL:

PETITIONER/APPELLANT/APPELLANT IN PERSON.

DAVID OWUSU TACHIE FOR THE 2

RESPONDENT/RESPONDENT/RESPONDENT
CORAM:

DOTSE JSC (PRESIDING), BENIN JSC, PWAMANG JSC, DORDZIE

(MRS.) JSC, AMEGATCHER JSC

JUDGMENT

AMEGATCHER, JSC:-

It is not usual for labour petitions determined by the National Labour

Commission (hereafter referred to as NLC) in favour of a petitioner to end up
at the instance of the victorious party, first on appeal to the Court of Appeal
and then to the apex court of the land. The sudden awakening and
consciousness of Ghanaians in the fight for their rights appears to have
propelled the Appellant, who is a junior officer in one of the rural banks in
the Western Region of the country, in spite of all odds, to challenge the
decision of his management, the National Labour Commission and the Court
of Appeal all the way to the apex court of the land. What makes the
appellant’s steps even more intriguing is the fact that he acted throughout the

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 various stages of this fight in the Court of Appeal and now the Supreme
Court as a litigant in person. We commend the appellant for his bravery and
perseverance but also wish to caution that in highly technical matters that
require expert advice, a balance of self-help with professional advice is
necessary to avoid a gamble, sometimes with its attendant repercussions.

THE FACTS

The appellant, until 29 June 2016, was a chief clerk in the Audit and
Compliance department of Ahantaman Rural Bank Ltd (hereafter referred to
as the Respondent). On 16 June 2016, the appellant abandoned midway and
without permission, a bus carrying the bank’s staff to Achiase for a boot
camp/bonding training. The bank held a disciplinary enquiry to investigate
his conduct. The result of the enquiry was the termination of his appointment
for gross misconduct. He was paid one (1)-month’s salary in lieu of notice in
accordance with the respondent’s Collective Bargaining Agreement.

Dissatisfied with the decision of the management of the bank terminating his
appointment, the appellant on 1 July 2016 petitioned the NLC for redress.
The Commission has for some whimsical reasons been added as a party in the
appeal to the Court of Appeal and then to this Court and described as 1
respondent. We shall address the propriety of adding the NLC as a party in
due course.

After hearings spanning between 16 August 2017 and 20 September 2017,

the NLC found that the respondent had unfairly terminated the appointment
of the appellant in breach of sections 62 and 63 of the Labour Act, 2003 (Act
651). The NLC awarded the appellant compensation of three (3)-months’
salary devoid of tax. The appellant was dissatisfied with the compensation
awarded by the NLC and filed an appeal to the Court of Appeal. The actual
date for filing the appeal is not evident from the Record. The filing date is
illegible on the Notice of Appeal. However, page two of the Notice of Appeal
gave the only hint of the filing of the Notice. The hint is that the Notice was
prepared on 9 October 2017 indicating the appeal could only have been filed
after 9 October 2017. The appellant, in his Statement of Case to this Court,
did not dispute this date after the Court of Appeal relied on the same date to
calculate when the appeal was filed.

PROCEEDINGS AT THE COURT OF APPEAL

The appellant argued two grounds of appeal in the Court of Appeal, i.e., that
the NLC erred in law when it held that the bank had already paid all his
entitlements and, secondly, that the decision was against the weight of
evidence. The Court of Appeal delivered its judgment on 1 March 2018. It
dismissed the appellant’s appeal not on the merits of the grounds of appeal
filed before it but on two technical grounds. The Court of Appeal, at pages
178-179 of the Record found in the first place as follows:

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 “We have examined the jurisdiction of this Court to entertain an
appeal from a decision of the Labour Commission in respect of unfair
termination and the consequential orders made under it. Jurisdiction
of a court means the power of the Court to adjudicate. Every
jurisdiction is created by either the Constitution or Statute and,
therefore, where jurisdiction has not been created by the Constitution
or Statute, a court of law cannot assume it… From section 134 of the
Labour Act (Act 651) (sic), the only appellate jurisdiction conferred
on the Court of Appeal against the decision of the Labour
Commission is in respect of order, direction or decision made in
respect of unfair labour practices. The appeal to this Court is against
the decision of the Labour Commission in respect of unfair
termination which jurisdiction has not been conferred on the Court.”

On the second technical ground, the Court of Appeal held at page 180 of the
Record as follows:

“The appeal before this Court was not in respect of unfair labour
practices and if it were so, it would still have been a nullity. An appeal
against a decision, order or direction of the Labour Commission shall
be filed within fourteen days from the date of the making of the order,
direction or decision. The Labour Commission delivered its judgment
on 20 September, 2017 and the appellant prepared his Notice of
Appeal on 9 October, 2017. There is no indication as to the time
within which the Notice of Appeal was filed but there is evidence that
it was prepared on 9 October, 2017, that is 19 days after the decision
was rendered by the Commission and would have been void even
where the appeal was against unfair labour practices which the Court
of Appeal is seised with appellate jurisdiction… The Notice of Appeal
filed by the Appellant and all the subsequent processes founded on
them are nullity.”

Based on the conclusion reached above, the Court of Appeal determined the
appeal against appellant.

APPEAL TO THE SUPREME COURT

The appellant on 19 April 2018 lodged the current appeal against the
judgment of the Court of Appeal to this court on two grounds namely:

1. The sitting judges misconstrued section 63(4) of the unfair termination of the
Labour Act with or to be the same as sections 127, 133 and 134 of the unfair
labour practices of the Labour Act (sic).

2. The sitting judges erred in law when they held that the Appeal Court has no
jurisdiction on unfair termination.

PROPRIETY OF ADDING NATIONAL LABOUR COMMISSION AS

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 A PARTY

Before proceeding to deal with this appeal, we would question the propriety
of adding the NLC as a party in these proceedings. The genesis of this case
was a petition submitted to the NLC by the appellant dated 1 July 2016. The
petition requested the NLC to intervene in the appellant’s unlawful
termination and grant him appropriate redress. From the Record, the appellant
appeared at the hearing of his petition as the complainant and Ahantaman
Rural Bank Limited as the respondent. The NLC acted as the tribunal, which
heard the petition and delivered its decision on 20 September 2017. It was the
Notice of Appeal, which the appellant filed at the Court of Appeal, dated 9
October 2017 appearing at page 50 of the Record, which named the NLC as 1
respondent and Ahantaman Rural Bank Ltd as 2 respondent. This description
of the parties appeared subsequently in all the proceedings filed by the parties
before the Court of Appeal. It also appeared on the Notice of Appeal to this
court and on all the submissions filed by the parties in this court.

We have examined the proceedings and the law. We do not think there was
any legal justification for adding the NLC as a party and describing it as 1
respondent in these proceedings. We have therefore, exercised the powers
vested in this court under Article 129(4) of the Constitution and the rules of
court to make the appropriate orders. Article 129(4) allows us to exercise all
the powers, authority and jurisdiction vested in any court established by the
Constitution or any other law. The power under the rules of court permits us
to exercise all the powers vested in any court at any stage of the proceedings
either suo motu or on application, to order any person who has been
improperly or unnecessarily made a party to cease to be a party. In our
opinion, the NLC has been improperly added as a party in this appeal. We,
therefore, strike out the name of the NLC from this appeal and shall,
hereafter, refer to the parties simpliciter as appellant and respondent.

PROCEEDINGS IN THE SUPREME COURT

At the hearing of the appeal on 12 February 2019, the panel on its own
motion ordered the parties to file further submissions addressing it on one
preliminary matter. This is the relevancy of Article 131(1)(b) and (2) of the
1992 Constitution and section 4(1) & (2) of the Courts Act, 1993 (Act 459) to
the determination of the appeal. The court exercised the powers vested in it
under rule 6(7) & (8) of the Supreme Court Rules, 1996, C.I. 16, which
provides as follows:

“(7) Notwithstanding sub rules (1) to (6) of this rule the

Court-

(a) may grant an appellant leave to amend the ground

of appeal upon such terms as the Court may think fit; and

(b) shall not, in deciding the appeal, confine itself to

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 the grounds set forth by the appellant or be precluded from
resting its decision on a ground not set forth by the appellant.

(8) Where the Court intends to rest a decision on a

ground not set by the appellant in his notice of appeal or on any
matter not argued before it, the Court shall afford the parties
reasonable opportunity to be heard on the ground or matter without
re-opening the whole appeal.”

The parties complied with the order and filed their additional Statements of
Case as directed by the court. We have considered the fact that the appellant
is a litigant in person, and as part of his rights under the Constitution, is
entitled to have the proceedings in this case and the judgment of this court
explained to him fully and in as simple a language as possible. This, we
believe, will remove any anxiety on the part of the appellant about the
workings of the justice delivery system. It would also assist him to appreciate
fully the laws that Ghanaians have voted to govern their affairs. We have,
therefore, after a careful review of all the documents placed at our disposal,
decided to deal with ground two in the Notice of Appeal, the holding by the
Court of Appeal that the appellant was out of time when he filed his appeal
and the preliminary matter. We do not consider the first ground to be proper
since the Court of Appeal did not go into the merits of the appeal lodged
before it to be faulted by the appellant on that ground.

APPEAL TO THE COURT OF APPEAL FROM THE

DETERMINATION OF THE NLC ON UNFAIR TERMINATION

The appellant petitioned the NLC under section 64 of the Labour Act, which
provides that a worker who claims that his employment has been unfairly
terminated under section 63 of the Act may present a complaint to the NLC.
After investigations, the NLC may, among other remedies order re-
instatement, order re-employment in the same or similar position, or payment
of compensation.

In the case of unfair labour practice, the Labour Act mandates the NLC to
investigate and determine complaints of unfair labour practice and make
appropriate orders. Sections 127, 128, 129, 130, 131, 132 and 133 of the
Labour Act defines unfair labour practices as discrimination, intimidation,
dismissal or threatened dismissal of any worker because of his membership or
holding of office of a trade union; or any act calculated to prevent a worker
from joining, continuing his membership or holding office of a trade union.
Thus, an employer who, by use of threats, intimidates his or her workers
during negotiations for collective bargaining agreement is guilty of unfair
labour practice. Further, an employer who takes part in the formation of a
trade union, or with the intention of adversely influencing a trade union,
contributes, in money or money's worth, to that trade union, is guilty of unfair
labour practice. If an employer, after not less than twenty-four hours’ notice,
fails to allow any officer of a trade union whose members include any of his

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 or her workers reasonable facilities and time to confer with the employer or
its workers on matters affecting the members of the trade union, it is guilty of
unfair labour practice. The guilt does not end only on the side of the
employer.

On the part of the workers, a worker or group of workers who intimidates an

employer during negotiations for collective bargaining is guilty of unfair
labour practices. Any activity carried on by a worker intended to cause
serious interference with the business of his or her employer that may result
in financial loss, constitutes unfair labour practice. Any attempt by an officer
of a trade union to persuade, induce or confer with a worker not covered by
collective agreement, during normal working hours and without the consent
of the employer, to become a member or an officer of a trade union
constitutes a breach. Equally so, a worker who confers on trade union matters
while the worker is on the premises of his or her employer commits an unfair
labour practice.

The NLC performs administrative and executive functions, in addition to its

function to settle industrial disputes. It is neither chaired nor composed of
judges. Yet it adjudicates cases. Adjudication is simply the legal process of
resolving disputes. One, therefore, could describe the NLC as a court. This
description fits into Article 295 of the Constitution, which defines a “court"
to mean a court of competent jurisdiction established by or under the
authority of this Constitution and includes a tribunal. This makes the NLC’s
work of adjudicating disputes a quasi-judicial one. Thus, in exercise of its
quasi-judicial functions, the Labour Commission is not only a commission
established by law, but also a tribunal or an adjudicatory body.

One of the orders the NLC is required to make as a tribunal is relevant for the
purposes of this appeal. It is in section 133(2) and (4) of the Act, which
provides as follows:

133 (2) Where the Commission finds that a person has engaged in an unfair
labour practice under section 127 which involves the termination of
employment of a worker, the alteration of his or her employment or of the
conditions of his or her employment, the Commission may, if it considers fit,
make an order requiring the worker's employer

(a) to take such steps as may be specified in the order to restore the position
of the worker; and

(b) to pay to the worker a sum specified in the order as compensation for any
loss of earnings attributed to the contravention.

(4) For the purposes of enforcing an order of the Commission under this
section, the order shall have effect as if it were made by the High Court.

The concept of unfair termination as provided for in section 63 of the Act is

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 very different from unfair labour practice in sections 127-133 of the same
Act. Admittedly, penalising a worker in the form of terminating his
employment because of his involvement in trade union activities constitutes
an offence of unfair termination as well as unfair labour practice. However,
the scope of unfair termination is much broader than mere union activities.

Unfair termination covers complaints against employers for breaches of the

terms and conditions of employment in relation to the worker specifically
where the employer had acted unreasonably or cannot show any justifiable
reasons for the termination. Examples are termination on grounds of
pregnancy and maternity leave, disability, gender, religion, political
persuasion and the like. However, unfair labour practice is limited to issues
such as discrimination, threats and dismissal among others arising from
labour union activities and no more. The remedy open to an aggrieved person
dissatisfied with a determination by the NLC in unfair labour practice is to
appeal to the Court of Appeal. Regrettably, in the case of unfair termination
under section 63, no remedy was provided for a dissatisfied party. It is the
failure on the part of the lawmaker to provide a remedy for a party
dissatisfied with the decision of the NLC in petitions for unfair termination,
which created the confusion. Out of this uncertainty, the Court of Appeal in
its judgment held that it had no jurisdiction to deal with the appeal lodged by
the appellant.

We have reviewed the entire provisions of the Labour Act, especially the
remedies available to dissatisfied parties after a determination by the NLC.
Under sections 134 and 167(2) of the Act, the Court of Appeal is given power
to hear appeals from determination of the NLC in unfair labour practice cases
and compulsory arbitration awards. For some unexplained reasons, in other
provisions of the same Act where the NLC is required to make a
determination, no remedy is provided for a dissatisfied party. The
presumption then would be that the NLC’s decision in those provisions is
either final or one could appeal to the High Court. However, the NLC, being
a lower adjudicating body, cannot have its decisions clothed with finality. Its
decisions are and would continue to be subject to the supervisory jurisdiction
of the High Court in cases falling within the purview of Judicial Review. It
would also be subject to the appellate jurisdiction of the courts in final
decisions determined on merit. Even in those provisions such as section 65(5)
where the NLC’s decision is stated to be final, this court in the case of
Republic v High Court Accra (Industrial Labour Division) Ex-parte
Peter Sangber-Dery & ADB Bank Ltd, Civil Motion N J5/53/2017 dated
26 July, 2017 (unreported) cited with approval Viscount Simmons dictum in
the English case of Pyx Granite Co Ltd v Ministry of Housing & Local
Government [1960] AC 260 at 286-287 and held that a statutory remedy
cannot clothe a lower adjudicatory body with finality in its decisions and
thus, whittle down the citizen’s right to have recourse to the courts. In the Pyx
Granite’s case, under the Town and Country Planning Act, 1947 a quarry
company was granted permission to mine only a portion of the local
authority’s freehold land but placed restrictions on its operations in respect of

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 other portions. A party required the permission of the local authority before
he can carry out mining activities. Section 17 of the Act provided that where
there was a dispute if a permit was required in any particular case, an
aggrieved person may apply to the Minister of Housing and Local
Government for determination which "shall be final". The plaintiff contended
that since its agreement had been incorporated into the Act, it did not require
permission before mining in the agreed portion of its freehold land. It sued in
the High Court for a declaration to that effect and the defendant took
objection to the jurisdiction of the High Court on the ground that since the
Act provided that any such dispute be determined by the Minister and whose
determination shall be final, the jurisdiction of the High Court was excluded.
The House of Lords per Viscount Simmons at pages 286-287 held as follows:

"The question is whether the statutory remedy is the only remedy and
the right of the subject to have recourse to the courts of law is
excluded... It is a principle not by any means to be whittled down that
the subject's recourse to Her Majesty's courts for the determination of
his rights is not to be excluded except by clear words.

In determining the court to exercise appellate jurisdiction over NLC decisions

where no provision is made in the Labour Act the general rule is that the High
Court of Justice exercises original jurisdiction in all matters including appeals
from lower courts and adjudicating bodies as was in the Pyx Granite’s case
(supra). However, sometimes, in the wisdom of Parliament, the appellate
jurisdiction over determinations of a lower adjudicating body is exercised by
some other court other than the High Court. In such situations, clear and
specific provision is made in the law. A few examples would suffice for our
purposes. In the Legal Profession Act, 1960 (Act 32), decisions of the
Disciplinary Committee of the General Legal Council imposing disciplinary
sanctions on a lawyer is made appealable to the Court of Appeal. Again, in
the Medical and Dental Act, 1972 (NRCD 91), a medical practitioner against
whom a disciplinary measure determined by the Disciplinary Committee of
the Medical and Dental Council is to be applied could appeal to the Court of
Appeal against the determination. Another express provision is found in the
Professional Bodies Act, 1973 (NRCD 143) where decisions of the Registrar
in applications for registration as a Professional Body were made appealable
to the Court of Appeal.

The question is why should Parliament in the Labour Act provide remedies
for some determinations by the NLC and fail to provide for others? Are there
provisions which are more important than others are? We do not think that it
was the intention of the lawmaker to grade some determinations as more
important than others or downplay some sections of the Act as insignificant.
In our opinion, in formulating the appellate remedies in the Labour Act,
Parliament inadvertently omitted to make provisions for the court a
dissatisfied party should appeal to after a determination by the NLC in other
labour issues in the law. Examples of sections affected by the omission are
sections 55(3), 56(3), 64, 65(5), 70(4), 77(6) and 170(3) of the Labour Act.

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 Accordingly, while considering our role not to overstep the functions of
Parliament as the lawmaker, we must state emphatically that where in a
legislation a gap left by the lawmaker will work manifest injustice to a party,
the courts would not gloss over that error in the name of the supremacy or the
sovereignty of Parliament to make laws. After all, the lawmakers are also
human beings subject to all the frailties and failings of man. Finding
ourselves at this crossroads, it would be the responsibility of this court to
construe the legislation purposively and in a way that will address the
omission, avert a denial of justice and enhance the realisation of a
constitutional right. No citizen should suffer for the mistakes of Parliament.

Thus, in the case of Quartson v Quartson [2010-2012] 2 GLR 481, the

1992 Constitution provided that Parliament shall, as soon as practicable after
the coming into force of the Constitution, enact legislation regulating the
property rights of spouses so that spouses shall have equal access to property
jointly acquired during marriage on dissolution of the marriage. Fifteen years
after the promulgation of the Constitution, Parliament had not passed the
legislation. The appellant, whose right having accrued in the divorce matter
between her and her husband, argued in the Court of Appeal that the sins of
Parliament in failing to pass the legislation should not be visited on her. The
Court of Appeal held that because Parliament had failed to enact a law to
regulate the distribution of jointly acquired property as mandated by the
Constitution, 1992, the appellant should bear the brunt of the inaction of
Parliament. On further appeal to the Supreme Court, the court unanimously
held at page 492 that:

“[A] country’s democratic development and the realization of the

rights of the citizenry cannot be stunted by the inaction of Parliament.
We do not think that this court is usurping the role of Parliament,
especially in cases where the inaction of Parliament results in the
denial of justice and delay in the realization of constitutional rights.”

With the manifest intentions of Parliament clearly expressed in other

legislations such as the Legal Profession Act, the Medical and Dental Act and
the Professional Bodies Act where the Court of Appeal is given appellate
jurisdiction to determine appeals from all decisions of those adjudicatory
bodies, we find it odd for the lawmaker to have intended different courts in
the same piece of legislation to assume appellate jurisdiction over NLC
determinations in different sections of the Labour Act. It would accord more
with the mode of operation of the Legislature and common sense to assign the
appellate jurisdiction in all determinations by the NLC in the Labour Act to
one court. Accordingly, based on the provisions already made by Parliament
that the Court of Appeal shall determine appeals from determinations of the
NLC in unfair labour practice matters and awards in compulsory arbitration
cases, we formulate our opinion as follows: wherever in the Labour Act, the
NLC is required to make a determination and no remedy is provided for the
aggrieved party, a dissatisfied party shall be entitled to appeal within 14 days
of the making or giving of the order, direction or decision to the Court of

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 Appeal. This is in consonance with similar provisions made by the lawmaker.
The implications of this opinion is that ground two of the appellant’s appeal is
allowed.

TIME LIMIT FOR APPEALING FROM THE DETERMINATION OF

THE NLC TO THE COURT OF APPEAL

Apart from appeals from interlocutory decisions where the time limit
prescribed by the Rules is 21 days, generally, appeals from final decisions of
the Circuit Court and High Court to the Court of Appeal is as of right and
must be filed within three months from the date of the decision. After the
expiration of the first three months, a party has another window of three
months within which to appeal but with leave of the Court. Parliament, in its
wisdom, decided to limit the time in specific legislation where a right of
appeal to the Court of Appeal is given. In the Legal Profession Act, section
21 provided a time limit of 21 days from the date of the decision. In the
Professional Bodies Act, a time limit of one month and 21 days is provided
for appeals to the Court of Appeal from different determinations of the
Registrar. It is not surprising that the lawmaker again in providing the time
limit for appeals from the determination of the NLC limited the time to 14
days in the case of appeals from a determination on unfair labour practice and
7 days in the case of arbitration awards from compulsory arbitration.

The Court of Appeal held that even if the appellant’s appeal was properly
lodged before it, the appellant was caught by the 14 days’ limitation period
prescribed by the statute for filing an appeal. The basis for the Court of
Appeal’s conclusion was that the appellant’s appeal was prepared 19 days
after the NLC’s determination and filed subsequent to that date. The law is
clear on the matter. Where Parliament has provided a time limit within which
an act should be performed, the time must be strictly adhered to unless in the
same legislation, a window is provided for extension. In our opinion, the
construction given to section 134 of the Labour Act by the Court of Appeal
and the findings that the appeal lodged by the appellant to it was outside the
14 days limitation prescribed is sound in law and unassailable. Accordingly, it
is our opinion that the appeal filed by the appellant to the Court of Appeal
from the determination of the NLC is incompetent and, therefore, a nullity.
The Court of Appeal was right in dismissing the appeal on that ground.

WHETHER APPEAL FROM A DETERMINATION BY THE NLC TO

THE COURT OF APPEAL REQUIRES LEAVE OR COULD BE
FILED AS OF RIGHT.

We now come to the preliminary matter raised suo motu by the court. The
fundamental issue to the determination of this appeal is the relevance of
Article 131(1) (b) and (2) of the 1992 Constitution and section 4(1) & (2) of
the Courts Act, 1993 (Act 459). The appellate jurisdiction of this court is
triggered when a party before it satisfies the stringent requirements of Article
131 of the Constitution. The same constitutional provision is replicated

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 almost verbatim in section 4 of the Courts Act, 1993 (Act 459). For the sake
of brevity, we shall limit ourselves in this judgment to the provisions of the
Constitution.

Article 131(1) and (2) is reproduced in full below:

(1) An appeal shall lie from a judgement of the Court of Appeal to the
Supreme Court-
(a) as of right in a civil or criminal cause or matter in respect
of which an appeal has been brought to the Court of Appeal
from a judgment of the High Court or a Regional Tribunal in
the exercise of its original jurisdiction; or
(b) with the leave of the Court of Appeal, in any other cause or
matter, where the case was commenced in a court lower than
the High Court or a Regional Tribunal and where the Court of
Appeal is satisfied that the case involves a substantial question
of law or is in the public interest.
(2) Notwithstanding clause (1) of this article, the Supreme Court may
entertain application for special leave to appeal to the Supreme Court
in any cause or matter, civil or criminal, and may grant leave
accordingly.

The framers of the Constitution have provided three different ways to lodge
an appeal to the Supreme Court. These are appeal as of right, appeal with
leave of the Court of Appeal and special leave to appeal obtained from the
Supreme Court.

Appeal as of Right

Under Article 131(1)(a), a party can file an appeal as of right from the Court
of Appeal to the Supreme Court if he can satisfy the following requirements:

i. The appeal is in respect of a civil or criminal cause or matter.

ii. The appeal has been brought to the Court of Appeal from the
judgment of the High Court or a Regional Tribunal.

iii. The High Court was exercising its original jurisdiction.

The current appeal clearly does not satisfy the requirements above because it
did not emanate from the High Court to the Court of Appeal in the exercise of
its original jurisdiction. An appeal, therefore, could not be filed as of right in
this case as the appellant purported to do. Our understanding of the
appellant’s submission is that because the NLC under sections 133(4) and
139(2) & (3) of the Labour Act has the powers of the High Court in respect of
enforcing the attendance and examining witnesses, compelling the production
of documents and privileges and immunities pertaining to proceedings in the
High Court, the NLC should be equated to a High Court.

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 As already discussed above, the lawmaker for very good reasons made
appeals from decisions of certain tribunals and adjudicatory bodies directly to
the Court of Appeal and not the High Court. The implications of that line of
reasoning by the appellant would mean that any tribunal or adjudicatory body
which is vested with the power of the High Court to summon witnesses and
the production of documents or whose decision is appealable to the Court of
Appeal automatically assumes the status and power of a High Court. In our
opinion, this reasoning is not only absurd but would defeat the manifest
intentions of the legislature. To illustrate this point, a reference to clause 2 of
Article 280 of the 1992 Constitution is apt. It provides that:

“Where a commission of inquiry makes an adverse finding against

any person, the report of the commission of inquiry shall, for the
purposes of this Constitution, be deemed to be the judgment of the
High Court; and accordingly, an appeal shall lie as of right from the
finding of the commission to the Court of Appeal.”

Evidently, the intention expressed by the framers of the Constitution in

formulating this provision is to make a report of a commission of enquiry to
“be deemed” to be a judgment of the High Court, and thus have the effect and
consequences of it, more particularly for a subsequent appeal to lie as of right
to the Court of Appeal. In other words, it is not the fact of an appeal to the
Court of Appeal from an adverse finding of a commission of enquiry under
Article 280 of the Constitution, which makes the report a High Court
judgment. It is the specific provisions added to the Article that the report shall
be deemed to be a judgment of the High Court. Interestingly, this phrase
“shall be deemed to be a judgment of the High Court” was omitted by the
legislature in section 134 of the Labour Act, the Legal Profession Act, the
Professional Bodies Decree and the Medical and Dental Act already referred
to above.

It is clear that if the lawmaker had intended to equate adjudicatory bodies like
the Labour Commission to the High Court in the exercise of its functions for
an appeal to lie as of right to the Court of Appeal and then the Supreme
Court, it would have expressly stated so. In the absence of any such clear
provision, the NLC could not be deemed to be a High Court for its decisions
to lie as of right from the Court of Appeal to this Court.

Appeal with the Leave of the Court of Appeal

Another way to trigger the appellate jurisdiction of the Supreme Court is by

seeking leave of the Court of Appeal. In ordinary parlance, leave implies
praying to the court to grant permission to file the appeal. The issue for
determination boils down to this: does a further appeal to the Supreme Court
from the Court of Appeal with respect to a matter emanating from the Labour
Commission require leave of the court or is it an appeal as of right?

The answer is in Article 131(1)(b). Leave of the Court of Appeal arises in

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 circumstances where a civil or criminal cause or matter started in a court
lower than the High Court and the Court of Appeal is satisfied that the case
involves a substantial question of law or is in the public interest. The
decisions of the NLC in this matter is a civil matter and, therefore, satisfies
the first precondition. Since our opinion above is conclusive that the NLC is
not a High Court, but an adjudicatory body lower than the High Court, the
second requirement would also have been satisfied.

In this court’s decision in Nii Kojo Danso II v. The Executive Secretary,

Lands Commission; The Executive Secretary, Land Valuation Board,
The Attorney-General and Joshua Attoh Quarshie; Civil Appeal No.
J4/35/2017, dated 28 November 2018, (unreported) this court in a dictum
recognised that appeals which emanated from the Labour Commission
require the leave of the Court of Appeal. In the words of Pwamang JSC:
“Category (ii) cases would include the determination of an appeal by the
Court of Appeal against a decision of the Labour Commission under
section 167(2) of the Labour Act, 2003 (Act 651). Here, the appeal to the
Court of Appeal is not in respect of a judgement delivered by the High
Court so though it may be a final decision, leave would be required.”

We accept the conclusion reached in the Nii Kojo Danso’s case supra and
adopt it as our own to support our conclusion in this matter.

Special Leave

This judgment would be incomplete without exploring an exceptional

provision the law has made concerning appeals to the Supreme Court, which
is the special leave. Clause 2 of Article 131 provides that notwithstanding the
previous clause the Supreme Court may entertain an application for special
leave to appeal to it. This means that the mandate of granting leave to appeal
to the Supreme Court does not lie solely with the Court of Appeal. The
Supreme Court also can grant leave for a person to bring his appeal - see the
case of Dolphyne v. Speedline Stevedoring Co. Ltd. and another [1995-
96] 1 GLR 532 where the court held that the word ‘notwithstanding’ meant
that without being affected by the provisions of clause (1) of article 131 of the
1992 Constitution, the Supreme Court may entertain an application for
special leave to appeal.

In the case of Sarkwa v. Ahunaku [1966] GLR 244, SC this court laid
down the principle that where the rules prescribe for special leave before an
appeal can be lodged, unless the special leave to appeal is granted, no appeal
can be filed and if an appeal purports to have been filed against a judgment
without special leave, the court should not have jurisdiction to entertain it.

Conclusion

The present appeal falls within the boundaries imposed by Article 131(1)(b)
and thus, the leave of the Court of Appeal should have been sought by the

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 appellant before it was brought. Failing to have applied for the leave of the
Court of Appeal, nothing prevented the appellant from bringing an
application seeking the special leave of the Supreme Court. At the end of the
day, since neither the leave of the Court of Appeal nor the Supreme Court
was sought before the appeal was lodged, the appellant’s appeal under
consideration is a nullity.

In delivering this opinion, we are mindful of the admonition placed on us by

Parliament in section 10(4) of the Interpretation Act, 2009 (Act 792) that:

“A Court shall construe or interpret a provision of the Constitution or

any other law in a manner

(d) that avoids technicalities and recourse to niceties of form and

language which defeat the purpose and spirit of the Constitution and
of the laws of Ghana.

However, this court in the past has differentiated between mere technicalities
and mandatory provisions of the law expressed in clear language. Thus, in the
case of Sandema-Nab v. Asangalisa and Others [1996-97] SCGLR 302
this court deliberated over the legal effect of rights provided in Statute and
the Constitution in the same way as the rights we have been called upon to
construe in this case. We reiterate the opinion of this court at page 306 as
follows:

Now it must be appreciated that an appeal is a creature of statute and

therefore no one has an inherent right to it. Where a statute does not
provide for right of appeal, no court has jurisdiction to confer that
right in a dispute determined under that statute. Similarly, where a
right of appeal is conferred as of right or with leave or with special
leave, the right is to be exercised within the four corners of that
statute and relevant procedural regulations, as a court will not have
jurisdiction to grant deviations outside the parameters of that statute.

It is instructive to note that the right to appeal is a creature of statute, and not
inherent. It must be conferred on a party by law. See the case of Nye v. Nye
[1967] GLR 76. Since this court does not have jurisdiction to grant
deviations outside the parameters of statute, our opinion is the appellant’s
appeal is incompetent, since it was filed without following due process.
Appellant failed to seek the leave of the Court of Appeal or the special leave
of this court. Except on the point that the Court of Appeal does have
jurisdiction to determine appeals from the NLC in determinations in unfair
termination, the appeal fails and is hereby dismissed

N. A.
AMEGATCHER

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 (JUSTICE OF THE
SUPREME COURT)

DOTSE, JSC:-

I agree with the conclusion and reasoning of my brother Amegatcher, JSC

J. V. M. DOTSE
(JUSTICE OF THE
SUPREME COURT)

BENIN, JSC:-

I agree with the conclusion and reasoning of my brother Amegatcher, JSC

A. A. BENIN
(JUSTICE OF THE
SUPREME COURT)

PWAMANG, JSC:-

I agree with the conclusion and reasoning of my brother Amegatcher, JSC

G. PWAMANG
(JUSTICE OF THE
SUPREME COURT)

DORDZIE (MRS.), JSC:-

I agree with the conclusion and reasoning of my brother Amegatcher, JSC

A. M. A. DORDZIE
(MRS.)
(JUSTICE OF THE
SUPREME COURT)

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