|
Labour –
Contract of employment
-
Breach of - Summarily dismissal
– Wrongful termination of
appointment - Refractory and
unprofessional behaviour – Loss
of benefits –
Defamation -
General Damages -
Compensation for trauma –
Evidence - Perpetual
Injunction
restrain the defendants, their
Agents and Servants from
publishing the said defamatory
words –
Pleadings -
Whether or not
the Court of Appeal abandoned
its primary and important duty
to do substantial Justice by
allowing technicalities to hold
sway over substance -
Whether or
not
the Court of Appeal erred when
it reversed the findings of the
High Court on severance award
since that issue was neither set
down for determination and was
not challenged -
Whether or
not
the appellant failed to
discharge the burden laid on him
to produce evidence to establish
the requisite degree of belief
in the mind of the Court -
Section II of the Evidence Act
1975 - Order 11 (7)(1) of
High Court (Civil Procedure)
Rules, 2004
C1.47 -
Whether or
not did plaintiff
make a reasonable effort to
secure a comparable job
HEADNOTES
The appellant was the Chief
Accountant of the Phoenix
Insurance Company, the
respondent in the present
appeal. He was employed in 1996
and assigned the post of a Chief
Accountant, a position he held
until he received the letter of
the 5th of March informing him
of the decision of management to
dismiss him summarily from the
employment of the company with
immediate effect. In the letter
of dismissal, he was said to
have done various acts which
management claimed constituted
the appellant’s "refractory and
unprofessional behavior in the
company." left the appellant in
no doubt that flowing directly
from the dismissal was the loss
of all benefits due him.
Naturally unhappy at this turn
of events, the appellant took
out a writ of summons in the
High Court claiming against the
respondent and two of its
executive directors After a full
trial, the learned Judge found
that the dismissal was wrongful
and proceeded to make these
pronouncements and orders. The
respondent company registered
its protest against the decision
by lodging an appeal at the
Court of Appeal. The court
unanimously dismissed the appeal
on all the grounds with the
exception of the reversal of the
findings of the learned trial
Judge on the severance award and
accordingly quashed the orders
made on it. Not surprisingly,
the appellant lodged an appeal
against the decision of the
Court of Appeal by filing the
Notice of Appeal
HELD
Pleadings
are the nucleus around which the
case- the whole case-revolves.
Their very nature and character
thus demonstrate their
importance in actions, as for
the benefit of the court as well
as for the parties. A trial
judge can only consider the
evidence of the parties in the
light of their pleadings. The
pleadings form the basis of the
respective case of each of the
contestants. The pleadings bind
and circumscribe the parties and
place fetters on the evidence
that they would lead. Amendment
is the course to free them from
such fetters. The pleadings thus
manifest the true and
substantive merits of the case.
And the reply is very much a
part of the pleadings
In principle then, in the
absence of any contrary
statutory or contractual
provision, the measure of
damages for wrongful termination
of employment under the common
law of Ghana is compensation,
based on the employee's current
salary and other conditions of
service, for a reasonable period
within which the aggrieved party
is expected to find alternative
employment. Put in other words,
the measure of damages is the
quantum of what the aggrieved
party would have earned from his
employment during such
reasonable period, determinable
by the court, after which he or
she should have found
alternative employment. This
quantum is, of course, subject
to the duty of mitigation of
damages”. In the main, we find
no merit in the Appeal. We would
accordingly dismiss same
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act 1975
High Court (Civil Procedure)
Rules, 2004
C1.47
CASES
REFERRED TO IN JUDGMENT
Hammond v Odoi 1982-83 GLR 1215
Accra-Tema City Council v Ntim
1969 CC 62
Whittaker V. Nanka Bruce 1994-95
GLR 784
Majolagbe v Larbi 1959 GLR 190
Chahin and sons v. Epope
Printing Press 1963 1 GLR
163-173
Hadley v Baxendale 1854 9 Ex
.341
Royal Dutch Airways v Farmex
1989-9 2GLR 623
Hemans V. Ghana National Trading
Company 1978 1GLR 4.
Nkegbe V. African Motors
Division of the United Africa
Company of Ghana Ltd. 1978 1GLR
32.
Ghana Cocoa Marketing Board V.
Agbettor 1984-86 1GLR 122.
Ashun v Accra Brewery Ltd 2009
Sc.GLR 81
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
AKOTO-BAMFO (MRS) JSC:
COUNSEL
AURELLIUS
AWUKU FOR THE APELLANT.
AHUMAH
OCANSEY FOR THE REPONDENT.
______________________________________________________________________
J
U D G M E N T
______________________________________________________________________
AKOTO-BAMFO (MRS) JSC:
It is important to stress that
the efficient conduct of a case
includes the drafting of correct
pleadings, the marshaling and
adducing of the relevant
evidence during the trial and
the invocation of the correct
principles of law. These are
well-known basics. If counsel
falls short in any of these
areas, it may lead to failure of
the action he or she has
initiated or, correspondingly,
success of an action he or she
is defending. In such a
situation, it is no use for
counsel to turn around and blame
the court for allowing
technicalities to frustrate its
primary and important function
of justice. Courts do justice
according to law. Accordingly,
counsel cannot afford to take
their eyes off the details of
the law. This case is a classic
example of counsel paying
insufficient attention to detail
resulting in the inevitable loss
of the claim which is the
subject of this inattention.
On the 30th of June
2009, the appellant herein,
Ambrose Dotse Klah, filed a
Notice of Appeal in the Registry
of this court by which process
he served notice that he was
dissatisfied with the Judgment
of the court of Appeal dated the
18th of December
2008.According to him the
object of his dissatisfaction
was:
“The part of the judgment which
set aside the award of
“severance and other awards”
These were his grounds of
appeal:
The Court of Appeal erred in
setting aside the award of
severance award and other
benefits having confirmed that
the appeal was wrongfully
dismissed.
The Court of Appeal failed in
its duty to do justice to the
applicant when it failed to
invoke its general powers
to protect the applicant.
The Court of Appeal should have
exercised the discretion to
order the payment of
Severance awards having
found that the
Defendant/Appellant/Respondent
severed
the employment
relationship.
The Court of Appeal erred in
requiring the
Plaintiff/Respondent/Appellant
to lead
exhaustive and elaborate
evidence on his “severance and
other
awards [benefits]”
when what he claimed to
be due him was not challenged.
Additional grounds of appeal may
be filed upon receipt of the
record of proceedings.
Even though there was an
indication that additional
grounds would be filed; no such
grounds were filed.
In order to appreciate the
issues raised, it is necessary
to set out briefly the events
culminating in to the present
appeal.
BACKGROUND
Until the 5th day of
March 2005, the appellant was
the Chief Accountant of the
Phoenix Insurance Company, the
respondent in the present
appeal. He was employed in 1996
and assigned the post of a Chief
Accountant, a position he held
until he received the letter of
the 5th of March informing him
of the decision of management to
dismiss him summarily from the
employment of the company with
immediate effect.
In the ensuing paragraphs of the
letter of dismissal, which was
marked as exhibit A in the Court
of first instance, were set out
various acts which management
claimed constituted the
appellant’s "refractory and
unprofessional behavior in the
company."
Exhibit A
left the appellant in no doubt
that flowing directly from the
dismissal was the loss of all
benefits due him.
Naturally unhappy at this turn
of events, the appellant took
out a writ of summons in the
High Court claiming against the
respondent and two of its
executive directors
jointly and severally these
reliefs:
Declaration that the dismissal
of the Plaintiff is unlawful.
GH¢1,000,000,000
General
Damages for
DEFAMATION and personally
disparaging the Plaintiff.
GH¢3,731,353,000 special Damages
for DEFAMATION rendering his
employment opportunities as a
Chartered Accountant negligible
up to and including his
Retirement age.
GH¢701,128,000 SEVERANCE AND
OTHER BENEFITS as the
Plaintiff’s normal Entitlements.
Perpetual Injunction
to
restrain the Defendants, their
Agents and Servants from
publishing the said defamatory
words or any similar words
against the Plaintiff.
6) Legal Cost.
After a full trial, the learned
Judge found that the dismissal
was wrongful and proceeded to
make these pronouncements and
orders:
“In the case the Plaintiff is
asking for the payment of normal
benefits which he fixed at
GH¢701,128,000 being severance
award and other benefits. There
is no evidence challenging this
piece of evidence on record." He
then continued later:
“Since the amount found is what
he is to earn by virtue of his
employment, he needs to be
compensated for the trauma
that he encountered.
The Court in addition awards
GH¢200 million as general
damages. I also award costs of
GH¢50 million to the plaintiff.”
The respondent company
registered its protest against
the decision by lodging an
appeal at the Court of Appeal.
The court unanimously dismissed
the appeal on all the grounds
with the exception of the 3rd
ground. It reversed the findings
of the learned trial Judge on
the severance award and
accordingly quashed the orders
made.
Not surprisingly, the appellant
lodged an appeal against the
decision of the Court of Appeal
by filing the Notice of Appeal referred
to earlier in this judgment.
Even though five (5) Grounds of
Appeal were filed, learned
Counsel for the appellant argued
all the grounds together with an
explanation that they were
interrelated.
It is evident that the central
issue raised in this appeal was
the reversal of the order for a
severance award in the sum of
GH¢701,128,000 in favour of the
appellant by the Court of
Appeal.
In his Submissions contained in
the Appellant’s Statement of
Case, learned Counsel argued
that, the
Court of Appeal abandoned its
primary and important duty to do
substantial Justice by allowing
technicalities to hold sway over
substance.
In the view of learned Counsel,
since the issue of the
GH¢701,128,000
was
neither set down as an issue for
determination in the High
Court, nor were the pieces of
evidence by the appellant on the
issue
challenged,
the Court
of Appeal erred when it reversed
the findings of the High Court
on the issue. He
additionally contended that
since there was no dispute,
owing to the fact that the
severance
award was not an issue set
down for determination, the
appellant was relieved of his
duty to call further evidence on
the issue. There being no cross
examination on the issue, he
contended (and the trial Court
thus having admitted same) the
Court of Appeal erred in
reversing same.
In reply, learned counsel for
the respondent submitted that
since the
appellant failed to discharge
the burden laid on him to
produce evidence to establish
the requisite degree of belief
in the mind of the Court, as
set out under
section
II of the Evidence Act 1975,
the attack mounted by the
appellant was bound to fail.
In paragraph 38 of the Statement
of Claim filed on 30/7/2005, the
appellant claimed as follows;
“38; Plaintiff further says that
by reason of Defendant’s action
he is not likely to get any job
befitting his qualification and
status as a chartered
Accountant, and thus at his age
with nine years more to reach
his retiring age, the following
are his expected losses, i.e.3,
731,353,000 in expected income.
WHEREOF: Plaintiff's claim is
against the Defendants jointly
and severally as per Writ of
Summons as follows:
Declaration that the dismissal
of the Plaintiff is unlawful.
GH¢1,000,000,000 General Damages
for DEFAMATION and personally
disparaging the Plaintiff
GH¢3,731,353,000 Damages for
DEFAMATION rendering his
employment opportunities as a
Charted Accountant negligible up
to and including his Retirement
age.
GH¢7001, 128,000 SEVERANCE AND
OTHER BENEFITS as Plaintiff’s
normal Entitlements.
Perpetual Injunction to restrain
the Defendants, their Agents and
Servants from publishing the
said defamatory words or any
similar words against the
Plaintiff.
Legal Cost.
Subsequent to this, the
respondents filed a Statement of
Defence consisting of 41
paragraphs. In paragraphs 39 to
41 appear the following:
“39. Defendants say that in
response to paragraph 38, they
are not responsible in any way
whatsoever for the conduct of
Plaintiff's profession, and he
is put to the strictest proof to
justify how GH¢3.731,353,000.00
could be his expected income as
Chief Accountant.
40. Except as otherwise admitted
in this Defence, Defendants deny
every material allegation in
Plaintiff's Statement of Claim.
41. Defendants finally state
that Plaintiff is not entitled
at all to the reliefs he seeks,
as being avaricious,
unmeritorious and founded on
falsehoods.”
What is the effect of the above?
It is common learning that
pleadings are written statements
of the parties setting out in
summary form the material facts
on which each relies in support
of his claim or defence; thereby
enabling each party to state and
frame the issues in dispute
between them.
In
Hammond v Odoi 1982-83 GLR 1215
at 1235, Crabbe JSC
pronounced on the functions of
pleadings thus:
“Pleadings
are the nucleus around which the
case- the whole case-revolves.
Their very nature and character
thus demonstrate their
importance in actions, as for
the benefit of the court as well
as for the parties. A trial
judge can only consider the
evidence of the parties in the
light of their pleadings. The
pleadings form the basis of the
respective case of each of the
contestants. The pleadings bind
and circumscribe the parties and
place fetters on the evidence
that they would lead. Amendment
is the course to free them from
such fetters. The pleadings thus
manifest the true and
substantive merits of the case.
And the reply is very much a
part of the pleadings.”
The Plaintiff is required to
formulate the factual grounds
upon which he bases his claim or
relief and thus define his cause
of the action against the
defendant. In
Accra-Tema City Council v Ntim
1969 CC 62, the crucial role
of pleadings was stated in these
terms:
“It is the purpose of such
pleadings that they should help
to define the issues and to
indicate to the party who asks
for them how much of the range
of possible evidence will be
relevant and how much irrelevant
to those issues. But if an
appellate court is to treat
reliance on them a pedantry or
mere formality I do not see what
part they have to play in our
trial system.”
Traditionally, the Plaintiff is
required to conclude the
Statement of Claim with a relief
or the remedy claimed.
The Statement of Defence, on the
other hand, informs the
Plaintiff precisely how much of
the Statement of claim the
defendant admits or denies.
It is obvious that the
respondent positively denied the
averments in paragraphs 38 of
the Statement of Claim as per
paragraphs 39, 40 and 41 of the
Statement of Defence.
Since a party's pleadings
constitute allegations, as
opposed to evidence; where an
averment is positively denied as
in the matter under
consideration, it is incumbent
upon the party asserting to
substantiate those averments by
leading evidence thereon; a
cardinal rule of pleadings is
that the material facts on which
the party pleading relies for
his claim, but not the evidence
by which those facts are to be
proved, should be contained in
the Statement of Claim.
Order 11
(7)(1) of C1.47 provides
“Subject to this rule, and rules
10 to 12, every pleading shall
contain only a Statement in
summary form of the material
facts on which the party
pleading relies for the Claim of
Defence, but not the evidence by
which those facts are to be
proved, and the Statement shall
be as brief as the nature of the
case admits”.
Whittaker
V. Nanka Bruce 1994-95 GLR 784.
We are of the view that the
appellant, having pleaded and
endorsed his claim for the sum
of GH¢701,128,000 and same
having been denied; he was under
an obligation to lead evidence
in proof of those allegations.
It was not sufficient for him to
have pleaded without more; he
failed to prove the avements
contained in the Statement of
Claim. Therefore the assertions
of learned Counsel that the
issues raised in paragraph 38 of
the Statement of Claim
metamorphosed into admitted
pieces of evidence have no basis
in law. The appellant failed to
discharge the burden placed upon
him by virtue of sections 10 and
11 of the Evidence Act, 1975.
Indeed what constitutes proof
has been laid down in the
celebrated case of
Majolagbe
v Larbi 1959 GLR 190 at Page
192 relying on Khoury V. Ritcher
“Where a party makes an averment
capable of proof in some
positive way e.g. by producing
documents, description of
things, reference to other
facts, instances and his
averment is denied, he does not
prove it by merely going into
the witness box and repeating
that averment on oath or having
it repeated on oath by his
witness. He proves it by
producing other evidence of
facts and circumstances from
which the Court can be satisfied
that what he avers is true.”
Additionally learned Counsel
contended that the appellant's
evidence on the GH¢701,128,000
was not challenged and therefore
constituted admitted facts which
the High Court rightly
considered but which findings
were wrongly reversed by the
Court of Appeal.
We take note of the fact that
the Court of Appeal adequately
dealt with this issue; and
rightly concluded that no
evidence was led on same. This
is what Aduamah Osei J A at
page 467 of the Record said on
the issue;" In considering the
respondent's claim for the said
sum, the trial Court stated as
follows:
‘’ In this case plaintiff is
asking for the payment of his
normal benefits which he fixed
at GH¢701,128,000 being
severance award and other
benefits. This represents monies
he earned for working for the
company. There is also no
evidence challenging this piece
of evidence on record”. On the
above findings of the learned
trial Judge, Aduamah Osei JA
delivered himself thus:
“I have gone over the
evidence several times and I
find nothing on record in
support of the trial court’s
statement that the said sum
represents monies the respondent
‘’earned for working for the
company’’. There was no such
evidence which the appellant was
enjoined to challenge. All the
respondent did was to endorse on
his writ of summons, as one of
the reliefs claimed by him, a
claim for “GH¢701,128,000
SEVERANCE AND OTHER BENEFITS, as
Plaintiff’s normal Entitlement”,
and to repeat the endorsement at
the end of his Statement of
Claim.
The repeat of the indorsement at
the end of the Statement of
claim is prefixed with the
words,”WHEREOF; Plaintiff’s
claim is against the Defendants
jointly and severally as per his
writ of Summons as follows;
“This is obviously intended to
suggest that the reliefs that
follow flow from the preceding
averments. There is however
nothing in the preceding
averments on which the claim for
the said sum can be based. And
even if there were any such
averments, there is no evidence
on record which establishes,
supports, or even explains the
claim.”
Having perused the Record of
Appeal, we cannot but agree with
those findings.
It is therefore our considered
view that since the appellant
made no attempt at
substantiating the allegations
contained in the Statement of
Claim, they remained allegations
and not proof. The case of the
appellants crumbles and we
accordingly dismiss same.
Significantly the learned trial
Judge simply stated at page 467
of the Record “ In this case
Plaintiff is asking for the
payment of his normal benefits
which he fixed at GH¢701,128,000
being severance award and other
benefits. This represents monies
he earned for working for the
company. There is no evidence
challenging this piece of
evidence on record”.
What was the nature of the
award? Was it within the scope
of the exercise of its
jurisdiction to award general
damages or special damages as
and when appropriate? If the
former; what was the award of
GH¢200,000.00? Was it in respect
of his Salary for the period in
lieu of notice and therefore
represented the amount of wages
he was prevented from earning as
a result of the wrongful act?
If the latter; was it pleaded,
particularized and proved?
A distinction exists between
general and special damages; for
whereas general damages arise by
inference of law and therefore
does not need to be proved by
evidence, special damages, a
loss which the law will not
presume to be the consequence of
the defendant's act but which
depends in part, on the special
circumstances, must therefore be
claimed on the pleading and
particularized. to show the
nature and extent of the damages
claimed. The plaintiff must go
further to prove by evidence
that the loss alleged was
incurred and that it was the
direct result of the defendant's
conduct.
Chahin and sons v. Epope
Printing Press 1963 1 GLR
163-173.
This undoubtedly was a
contract
of employment. The
respondent committed a
breach
thereof.
Where an employer wrongfully
dismisses an employee as in the
instant case, which was the
finding made by the trial Judge
and rightly affirmed by the
Court of Appeal; the measure of
damages is calculated largely
on the basis of the principles
applicable to actions of breach
of contract as enunciated in
Hadley v
Baxendale 1854 9 Ex .341
and 354-355. "Where two parties
have made a contract which one
of them has broken, the damages
which the other party ought to
receive in respect of such of
breach of contract should be
such as may fairly and
reasonably be considered as
either arising naturally i.e.,
in the usual course of things
from such breach of contract
itself, or such as may
reasonably be supposed to have
been in the contemplation of
both parties at the time they
made the contract, as the
probable result of a breach of
it. "
The principle is to place the
injured party as far as money
could do so in the position he
would have been but for the
breach.
Royal
Dutch Airways v Farmex 1989-9
2GLR 623.
Over the years, our courts have
enhanced the awards beyond the
notice period under the
contract.
Hemans V. Ghana National Trading
Company 1978 1GLR 4.
Nkegbe V. African Motors
Division of the United Africa
Company of Ghana Ltd. 1978 1GLR
32.
This development does not
detract from the essential
nature of a contract of
employment which is clearly
determinable and does not
therefore give the wronged party
the right to be paid salary
until his retirement, the
exception being contracts
affected by Public Law
Provisions as demonstrated by
the Ghana
Cocoa Marketing Board V.
Agbettor line of cases.
([1984-86] 1GLR 122.)
We take note of the fact that
there was an award of
GH¢200,000,000 which was
affirmed by the Court of Appeal.
Since that issue is not on
appeal, we refrain from
commenting on same, Suffice it
to say that generally a
plaintiff is entitled to such
damages as would have been
suffered by a party acting
reasonably after the breach.
Therefore in the case of an
employee wrongfully dismissed,
he is required
to make a
reasonable effort to secure a
comparable job.
Ashun
v Accra Brewery Ltd 2009 Sc.GLR
81
At page 84, the Supreme Court
speaking through Prof. Date-Bah
JSC stated “the duty of
mitigation of damages for
wrongful dismissal devolves on
the employee. Accordingly, he or
she has the duty to take steps
to find alternative employment.
In
principle then, in the absence
of any contrary statutory or
contractual provision, the
measure of damages for wrongful
termination of employment under
the common law of Ghana is
compensation, based on the
employee's current salary and
other conditions of service, for
a reasonable period within which
the aggrieved party is expected
to find alternative employment.
Put in other words, the measure
of damages is the quantum of
what the aggrieved party would
have earned from his employment
during such reasonable period,
determinable by the court, after
which he or she should have
found alternative employment.
This quantum is, of course,
subject to the duty of
mitigation of damages”.
In the main, we find no merit in
the Appeal. We would accordingly
dismiss same.
[SGD] V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
[SGD] DR. S. K.
DATE- BAH
JUSTICE OF THE SUPREME COURT
[SGD]
J. ANSAH
JUSTICE OF THE SUPREME COURT
[SGD] J. V. M.
DOTSE
JUSTICE OF THE SUPREME COURT
[SGD] P.
BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL;
AURELLIUS
AWUKU FOR THE APELLANT.
AHUMAH
OCANSEY FOR THE REPONDENT.
|
