|
Labour – Employment -
Quantum meruit - Salaries –
deletion of names - Restoration
of names - Workers’ pay roll –
General damages - Whether or not
Appellants were not its
employees of the Respondent -
Whether or not their appointment
was irregular and not fraudulent
- Whether or not there was an
existence of a contract between
the parties - Section 75(1) of
the Labour Act, 2003 Act 651 -
rule 15 (6) (b) of the Supreme
Court Rules, 1996 (CI 16).
HEADNOTES
The gist of the plaintiff’s case
at the high court was that
having been employed by the
respondents on 9th April 2012,
they received their salaries
from that date till May 2014
when these
salaries were stopped. All
efforts for this situation to be
rectified were unsuccessful.
They stated that they suffered
hardship and inconvenience as a
result of this state of affairs.
It was the high court’s
refusal of their claim and the
grant of the respondent’s
counterclaim which led to the
appellant’s appeal to the court
of appeal. Still dissatisfied
with the outcome at that forum,
they have launched the present
appeal
HELD
STATUTES REFERRED TO IN JUDGMENT
Labour Act, 2003 Act 651
Supreme Court Rules, 1996 (CI
16)
Evidence Act
1975 (NRCD 323)
Court (Award of Interest and
Post Judgement Interest) rules,
2005 (C.I 52)
CASES REFERRED TO IN JUDGMENT
Samuel Bonney & Ors vs Ghana
Ports and Habours Authority.
Civil Appeal No J4/39/2012
City & Country Waste Limited v
Accra Metropolitan Assembly
[2007-2008] 1 SCGLR 409
Scarisbrick v Parkinson (1869)
20 L.T 175
Craven-Ellis v Canons Ltd [1936]
2 KLB 403
Hammond v Ainooson [1974] 1 GLR
176
Skanska Jensen International v
Klimatechnik Engineering Ltd
[2003-2004] 2 SCGLR 698
Mabsout v Fara Bros (Ghana) Ltd
[1964] GLR 164
BOOKS REFERRED TO IN JUDGMENT
(Black’s Law Dictionary 8th
Edition)
DELIVERING THE LEADING JUDGMENT
LOVELACE-JOHNSON (MS), JSC:
COUNSEL
MOHAMMED ALHASSAN FOR THE
PLAINTIFFS/APPELLANTS/APPELLANTS.
STEPHEN OBENG DARKO LED BY
ANNETTE OHENEWAA ADUTWUM FOR THE
DEFENDANTS/RESPONDENTS/RESPONDENTS.
J
U D G M E N T
LOVELACE-JOHNSON (MS), JSC: -
This is an appeal against the
judgment of the Court of Appeal
dated 11th May 2018 by which the
said court upheld the appeal of
the appellants in part and made
an order granting them their
earnings from October 2012 to
April 2014.
At the high court, the
appellants had sought an order
directing that their names be
restored to the respondent’s
payroll, recovery of their
unpaid salaries for a stated
period, interest on these
salaries up to the date of the
said restoration and general
damages.
The respondents had denied their
claim and also counterclaimed
for certain reliefs.
The gist of the plaintiff’s case
at the high court was that
having been employed by the
respondents on 9th April 2012,
they received their salaries
from that date till May 2014
when these salaries were
stopped. All efforts for this
situation to be rectified were
unsuccessful. They stated that
they suffered hardship and
inconvenience as a result of
this state of affairs.
It was the high court’s refusal
of their claim and the grant of
the respondent’s counterclaim
which led to the appellant’s
appeal to the court of appeal.
Still dissatisfied with the
outcome at that forum, they have
launched the present appeal
on the following grounds
(a) The court of appeal
erred in law and occasioned a
miscarriage of justice when it
dismissed the Appellants claim
for the
restoration of their names unto
the Respondents’ workers’ pay
roll having found that the
Respondent was estopped by its
conduct from asserting that
Appellants were not its
employees.
(b) The court of appeal
erred in law and occasioned a
miscarriage of justice when it
dismissed the Appellants’ claims
to their unpaid salaries and
interest thereof from the 1st
May 2014 to date of judgment of
the trial court having regard to
the evidence on record that
Respondent benefitted from
services rendered to it by the
Appellants for the period
(c) The court of appeal
erred and occasioned a
miscarriage of justice when it
declined to award general
damages to the Appellants for
hardship and inconvenience they
suffered due to the non-payment
of their salaries.
(d) Additional grounds to
be filed upon receipt of the
record of proceedings
No such additional grounds were
indeed filed.
They seek from this court a
reversal of the judgment of the
court of appeal and a grant of
their reliefs claimed at the
high court
The designation of the parties
at the trial court will be
maintained in this appeal.
A summary of the submissions of
counsel for the plaintiffs in
support of his grounds of appeal
is that having held that the
respondents were estopped by
conduct from denying that the
plaintiffs were their employees,
that
their appointment was not
fraudulent, that they had
rendered services to the
respondent and that
section
75(1) of the Labour Act, 2003
Act 651 qualified them as
permanent workers, the court of
appeal should have ordered a
restoration of their names to
the payroll ‘to enable them
receive salaries for the work
they do with dedication and
punctuality’. See page 4 of
counsel’s statement of case.
Further, counsel contends that
having found that even after
their names were
deleted
from the payroll, the
plaintiffs continued working for
the defendants right up till
judgment in the present matter
in December 2016, they were
entitled to be paid for that
period to prevent unjust
enrichment on the part of the
defendants.
Finally, counsel submits that
the hardship caused the
plaintiffs as a result of the
failure of the respondents to
pay them for almost four years
was a natural and probable
consequence of this failure so
the court of appeal should not
have dismissed their claim for
general
damages.
In response, the Defendants
contend that their conduct
cannot be used as an estoppel
against them since the
appointments of the plaintiffs
was
irregular. Further that a
claim for salaries and interest
cannot be claimed from the time
this irregular appointment was
discovered. Regarding the claim
for general damages, counsel
submits that since this was
based on
the existence of a contract
between
the parties and there was
none here the plaintiffs are not
entitled to such damages.
Finally, counsel attempts to
raise an alleged participation
in the forgery of the
appointment letters by the
plaintiffs as a point of law
which she raises for the first
time on appeal.
The Defendant also seeks a
variation of the judgment as
they are at liberty to do under
rule 15
(6) (b) of the Supreme Court
Rules, 1996 (CI 16). The
said rule provides as follows
The statement of case of each
party to the appeal
(a)
(b) ….in the case of a
respondent may include a
contention that the
judgment of the court below be
varied
Defendants pray that the
judgment be varied by denying
the plaintiffs all the reliefs
sought because the basis of
their claim ie the appointment
letters were tainted with fraud
and they had failed to call
Rashid Tanko, a witness most
material to their case.
The court of appeal identified
the following three issues as
those to be determined.
1. Whether the
plaintiff/appellants obtained
employment from the respondent
through fraud
2. Whether the defendant
by their conduct can deny that
the plaintiffs have been their
employees
3. Whether the
plaintiffs are entitled to the
salaries they earned
It is our considered opinion
that the issues at the heart of
this appeal are
a. Whether there was a
valid contract of employment
between the parties
b. Whether the
plaintiffs are entitled to any
remuneration from 1st of May
2014 to the date of judgment
with interest.
c. Whether the
plaintiffs are entitled to a
restoration of their names to
the Defendants payroll
d. Whether the
plaintiffs are entitled to
general damages
As rightly stated by the trial
judge at page 4 of his judgment,
the resolution of the first
issue could resolve all other
issues set down for trial. The
learned judge after an analysis
of the law and evidence led came
to a conclusion at page 283 of
the Record of Appeal (ROA) that
the 1st plaintiff was not an
employee of the defendant. In
similar vein, the court made a
finding at page 286 that 2nd
plaintiff was also not an
employee of the defendants.
The evidence on record and the
analysis by the trial court
shows that although the
plaintiffs applied for and were
offered employment which they
accepted, the process was most
irregular. The record clearly
shows that the application
letters, acceptance letters and
appointment letters of the
plaintiffs were fraught with
disturbing contradictions. The
trial court did a lengthy
analysis and came to the
conclusion that these documents
which form the basis of the
relationship between the parties
were tainted with fraud.
The court of appeal took the
position that fraud was not
proved beyond reasonable doubt
as required by law and so the
trial court’s finding on that
issue was not supported by the
evidence on record and held that
the defendants were
‘estopped by the provisions of
the
Evidence Act from denying
that the appellants were their
staff’. See page 341 of the
Record of Appeal.
The plaintiffs sought to prove
their position that they were
employees of the defendants by
tendering their applications for
employment dated 25th September
2012 and 10th March 2012
respectively.1st plaintiff’s
appointment letter was dated 2nd
April 2012, he confirmed his
acceptance of the said
appointment by a letter dated
5th April 2012. The said
appointment was to take effect
from 9th April 2012. 2nd
plaintiff’s appointment letter
was also dated 2nd April 2012,
he accepted the appointment by
letter dated 4th April 2012 and
the appointment was to take
effect on 9th April 2012. The
plaintiffs’ evidence is that in
actuality, they received their
appointment letters on 3rd
October 2012 and backdated their
acceptance letters to the above
stated dates upon instruction
from one Rashid Tanko, the
defendants Regional Manager who
told them to ignore the back
dating of their appointment
letters since they would receive
their salary from the date they
assumed duty. See the Witness
Statement of 1st plaintiff at
page 53 of the ROA.
The tenor of the said statement
is that they had no hand in any
fraud perpetrated by this
official, if any. The court of
appeal appeared to agree with
this stand. At page 339 this is
what the court said
“Rashid Tanko, who is not a
party to this suit had his own
undisclosed intentions when he
backdated the appointment letter
to the plaintiffs. The
plaintiffs obeyed his directives
to accept the appointment within
a specified period. They
backdated their acceptance
letters too and were instructed
to ignore the backdating since
their appointment will only take
effect in October”
Nothing on record supports the
court of appeal’s position that
the said Rashid Tanko had his
own undisclosed intentions. In
any case he was not a party to
the suit and was not called as a
witness. His undisclosed
intentions cannot be treated as
supportive of the plaintiffs’
case.
The crucial question to be
answered is whether the earlier
mentioned correspondences
between the parties amount to a
contract of employment between
them.
As stated earlier, according to
1st plaintiff, he actually
received his appointment letter
on 3rd October 2012. The letter
required that he accept the
offer on or before 6th April
2012. Surely then, at the time
he actually accepted the offer
on or after 3rd October, the
offer of employment had lapsed.
It does not matter who
instigated his actions and what
undisclosed reasons informed
this instigation. Neither back
dating the acceptance letter nor
a failure to strictly prove
fraud by the defendant changes
this fact.
The situation is the same with
the 2nd plaintiff on whose
behalf 1st plaintiff testified.
He also in actuality received
his appointment letter in
October 2012 which asked him to
confirm his acceptance by a date
which had clearly passed.
The court of appeal took the
position that the defendants are
estopped by virtue of section 26
of the evidence Act
1975
NRCD 323 because
‘they have made them believe
that they had been regularly
engaged as employees of the
defendant institution, and that
the issue of non-payment of
their salaries would be
resolved.’ See page 341 of
the ROA.
The said section 26 with the
side note ‘Estoppel by own
statement or conduct’ provides
as follows:
Except as otherwise provided by
law, including a rule of equity,
when a party has, by his own
statement, act or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest in any
proceedings between that party
or his successors in interest
and such relying person or his
successors in interest
The Labour Act 2003 (Act 651)
regulates employer-employee
relationships in this
jurisdiction. It is stated in
its scope of application that it
‘ applies to all workers and to
all employees except the Armed
Forces, the Police Service, the
Prison Service and the Security
and Intelligence Agencies
specified under the Security and
Intelligence Agencies Act 1996
(Act 526).
By virtue of the maxim ‘
Generalia specialabus non
derogant’ it is the provisions
of the Labour Act which will
prevail over the provisions of
the Evidence Act.
This maxim has been explained as
‘where two provisions or
enactments are in conflict and
one of them deals specifically
with the matter in in question
and the other is of general
application, the conflict may be
avoided by applying the specific
provision to the exclusion of
the general one, that is, the
special provision prevails over
the general one’ See
Samuel
Bonney & Ors vs Ghana Ports and
Habours Authority. Civil Appeal
No J4/39/2012
Section 12 of Act 651, provides
as follows
1. The employment of a
worker by an employer for a
period of six months or more or
for a number of working days
equivalent to six months or more
within a year shall be secured
by a written contract of
employment.
2. A contract of
employment shall express in
clear terms the rights and
obligations of the parties
Section 13 sub titled
Written statement of particulars
of contract of employment
further provides as follows
Subject to the terms and
conditions of a contract of
employment between an employer
and a worker, the employer shall
within two months after the
commencement of the employment
furnish the worker with a
written statement of the
particulars of the main terms of
the contract of employment in
the form set out in the schedule
to this Act signed by the
employer and the worker.
As rightly stated by the court
of appeal, the temporary
appointment of the plaintiffs,
if regular was to be treated as
a permanent one by virtue of
section 75 (1) of Act 651 since
they were in the employ of the
defendants for almost one and
half years before their salaries
were stopped. This section
states as follows
A temporary worker who is
employed by the same employer
for a continuous period of six
months and more shall be treated
under this part as a permanent
worker
The record does not show whether
the plaintiffs after assuming
duty ever signed any contracts
of employment as required by
law. At best the correspondence
between the parties relating to
their employment was an
agreement and one riddled with
so many irregularities as to
make it unenforceable if it came
to that.
On the basis of this, we resolve
this issue in the negative and
confirm the trial judge’s
findings, but for different
reasons, that the plaintiffs
(wrongly described as defendants
at pages 283 and 286) are not
employees of the defendants.
Issue c deals with the
plaintiffs claim for a
restoration to the payroll of
the defendants.
Both the trial court (page 289
of the ROA) and the court of
appeal (page 342) refused to
order the restoration of the
names of the plaintiffs to the
payroll. The court of appeal
appeared to accept the
defendant’s position that the
procedure of their employment
was irregular. We confirm these
refusals but base our refusal to
order a restoration on our
earlier finding that the
plaintiffs had no contract of
employment with the defendants.
The evidence shows that the
plaintiffs were paid from
October 2012 when they actually
resumed work till the end of
April 2014 after which their
salaries ceased. They claimed
salaries and interest thereon
from 1st May 2014 till the time
their names would be restored to
the payroll.
The high court at page 289 of
the ROA made a finding that
salaries paid to plaintiffs from
October 2012 to April 2014 when
they ceased were unlawfully paid
and were to be refunded to the
defendant but refused to award
interest on these due to the
‘peculiar facts’ of the case.
The Court of appeal made a
finding that, the plaintiffs,
having rendered services to the
defendants for the period above
were entitled to the salaries
received for the period because
a failure to make this award
would amount to unjust
enrichment on the part of the
defendants.
The plaintiffs’ state and the
record confirms that even after
their salaries ceased, they
continued to render services to
the defendants. Exhibits AU 14
and 15, found at pages 76 and 78
of the ROA are letters from
counsel for the plaintiffs
confirming this. They stated
same in paragraph 19 of their
witness statement found at page
55 of the ROA. At no point was
this seriously challenged during
proceedings except for the last
question during cross
examination of the 1st plaintiff
where it was put to him that he
was not a staff of the defendant
and he replied that he was.
Quantum meruit, literally
meaning ‘as much as he has
deserved’
(Black’s Law Dictionary 8th
Edition) is used as an
equitable remedy where unjust
enrichment has occurred to
enable a plaintiff to recover
even if a contract is
unenforceable for one reason or
other. Although usually pleaded
as an alternative remedy, where
this has not been done as in the
instant case, the courts have
not hesitated in the interest of
justice to make restitution for
the plaintiff by reversing
‘…the unjust enrichment of the
defendant through its retention
of the benefit of the
plaintiff’s services without any
payment for them….’ See
City & Country Waste Limited v
Accra Metropolitan Assembly
[2007-2008] 1 SCGLR 409
@ 435 and 436
Reference is also made to the
cases of
Scarisbrick v Parkinson (1869)
20 L.T 175 and Craven-Ellis v
Canons Ltd [1936] 2 KLB 403
cited in the Ghanaian cases of
Hammond v
Ainooson [1974] 1 GLR 176@ 183 &
184 and Skanska Jensen
International v Klimatechnik
Engineering Ltd [2003-2004] 2
SCGLR 698 @ 716
In the first case, it was held
that a clerk was entitled to
recover fees for his services on
quantum meruit even though the
contract under which he had
performed them was unenforceable
by reason of the Statute of
Frauds. In the second case the
court held that an agreement was
void because the directors of a
company had had no authority to
act and so could not bind the
company so the claim in contract
must fail but a claim in
quantum
meruit would succeed because
the plaintiff had indeed done
work for the company for which
he was entitled to remuneration.
In the Supreme court case of
Mabsout v
Fara Bros (Ghana) Ltd [1964] GLR
164 the court stated at page
441 as follows
‘The acceptance of services
rendered by the appellant at the
request of the company, raises
an inference of a promise to pay
on a quantum meruit basis. This
is not an inference of fact, but
is a rule of law imposed on the
parties where work has been done
under what purports to be a
binding contract, but is not
so in fact’ Emphasis mine.
The above statement is clearly
applicable in the circumstances
of this case. The plaintiffs
provided services to the
defendant under what they
thought was a contract of
employment, which was indeed
not. They were paid for a part
of the period when these
services were rendered. Although
their salaries were stopped from
May 2014, they continued
rendering services to the
defendant who also accepted
these services even after
plaintiffs issued a writ against
them.
We find that the plaintiffs are
entitled to the salaries paid
them from October 2012 when they
assumed duty till April 2014, as
held by the court of appeal.
Further, on the equitable
doctrine of quantum meruit, they
are also entitled to salaries
from May 2014 to 12th August
2015 when the defendants filed
their statement of defence. We
fix this date as the end point
because by the statement of
defence and counterclaim, the
defendants clearly disputed the
legality of plaintiffs’
appointment letters and sought a
declaration in their
counterclaim that plaintiffs
were not their employees.
This should have put the
plaintiffs on notice that they
were not considered employees.
By this we enhance the order of
the court of appeal regarding
the period for which the
plaintiffs are to be paid. The
plaintiffs claim for interest is
also granted in the following
terms. The defendants are to pay
interest at the
statutory
rate of interest (C.I 52) on
these amounts from 1st May 2014
to 12th August 2015.
We are also satisfied that an
award of general damages is not
appropriate in the circumstances
of this case because there was
no contract of employment and
refuse to award same. The
contention of the defendants
that the judgment be varied on
the basis of proven fraud and
the failure to call a material
witness is also dismissed.
The appeal of the
plaintiff/appellant succeeds in
part.
AVRIL
LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
MOHAMMED ALHASSAN FOR THE
PLAINTIFFS/APPELLANTS/APPELLANTS.
STEPHEN OBENG DARKO LED BY
ANNETTE OHENEWAA ADUTWUM FOR THE
DEFENDANTS/RESPONDENTS/RESPONDENTS.
|
