Labour - Employment - Removal as a director
of the companies -Termination of
appointment as director –
Discrimination - Compensation
for sexual harassment and
victimization - order of
injunction to restrain the
defendant from further sexual
harassment - Trade secrets and
valuable commercial information
- Damages - Breach of trust and
confidence - Rule 6 (1) (f) -
Supreme Court Rules, CI 16 -
Section 11 (1) and (4) -
Evidence Act, 1975, NRCD 323 -.
section 194 (1) - Companies Act,
1963, Act 179
HEADNOTES
The facts of this case briefly
are that the appellant was an
employee of the 1st
and 2nd respondents’
companies since 1985. She was
appointed a Director of the 1st
and 2nd respondents
after the death of one of the
Directors. According to the
appellant, relationship between
her and the 3rd
respondent, who was the Managing
Director of the 1st
respondent company became
unpleasant in 2010. As a result,
she was
removed as a director of the
companies, her work schedule
was taken from her, she was
denied payment of some
allowances and was generally
discriminated against in the
work place. The appellant then
took out a writ in the High
Court The trial High Court
however entered judgment for the
appellant on all the reliefs
except reliefs (8) and (9). The
trial High Court also held that
the 3rd and 4th
respondents were jointly and
severally liable for the acts of
the 1st and 2nd
respondent companies. The
respondents’ counterclaim was
dismissed by the trial High
Court. The trial High Court
however entered judgment for the
appellant on all the reliefs
except reliefs (8) and (9). The
trial High Court also held that
the 3rd and 4th
respondents were jointly and
severally liable for the acts of
the 1st and 2nd
respondent companies. The
respondents’ counterclaim was
dismissed by the trial High
Court. The respondents who were
dissatisfied with the decision
of the High Court appealed to
the Court of Appeal, which set
aside the judgment of the High
Court. The appellant is now
before this court, urging us to
set aside the Judgment of the
Court of Appeal
HELD
The fact that appellant did not sue
for fuel allowance and did not
also produce any evidence, for
example, that she wrote to
demand payment or protested for
the non-payment of the
Director’s fees, confirms our
reasoning that the appellant was
paid the Director’s fees as
found by the Court of Appeal. On
the evidence, we think that the
Court of Appeal, did the right
thing by setting aside the award
of GHC 3,500.00 being arrears of
Director’s fees to the appellant
and we do affirm the decision.
From the evidence on record, we do
agree with the counsel for
respondents that the appellant
failed to prove this claim too.
Indeed, we think that if the
respondents were rewarding the
appellant in view of her
increased work load, at least
the appellant would have been
written to and her alleged hard
work recognised as the basis for
the alleged allowance. We are
therefore convinced in our minds
that what was paid to the
appellant were commissions, as
indicated
The appellant being a director of the
company was expected to comply
with article 14 of the
Collective Agreement and the
Court of Appeal was right in
setting aside this claim too,
since the evidence lead to prove
same was not credible and a
breach of article 14 of the
Collective Agreement, the trial
court should have rejected same.
We agree with the Court of Appeal that
the claim for monies paid for
repairs and maintenance was in
the nature of special damages
and same ought to have been
pleaded and particularized. The
trial court was thus wrong in
law when it granted the relief
without a specific amount to be
recovered by appellant. The
award was at large and we wonder
what amount the appellant was
entitled to recover from the
respondent. We think that this
claim was rightly set aside by
the Court of Appeal, as the
appeal against the setting aside
of this particular claim to this
court, just like the medical
claim had no basis in law.
Indeed, we do not find any legal
basis on which the trial court
sought to lift the corporate
veil of the 1st and 2nd
companies to hold the 3rd
and 4th respondents
jointly and severally liable to
the appellant. The Court of
Appeal rightly decided the issue
on appeal and we endorse the
decision. Consequently, the
decision of the Court of Appeal
setting aside the trial court’s
order that 3rd and 4th
respondents were jointly and
severally liable with the other
respondents is hereby affirmed.
In conclusion, we are of the
opinion that from evidence on
record the appeal has no merits
whatsoever and same will be
dismissed. The appeal is
accordingly dismissed and we
affirm the judgment of the Court
of Appeal.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, CI 16
Evidence Act, 1975, NRCD 323
Companies Act, 1963, Act 179
CASES REFERRED TO IN JUDGMENT
Dahabieh v S.A. Turqui &
Brothers [2001-2002] SCGLR 498,
Republic v. Conduah; Exparte
Aaba(Substituted by) Asmah [
2013-2014] 2 SCGLR 1032.
Abbey & Others v. Antwi V [2010]
SCGLR 17
Owusu- Domena v. Amoah
[2015-2016] 1 SCGLR 790.
Zabrama v Segbedzi [1991] 2
GLR 221
Salomon v. Salomon [1897] AC 22
Morkor v. Kuma (East Coast
Fisheries Case) [1998 – 1999]
SCGLR 620,
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
MARFUL-SAU, JSC: -
COUNSEL
ALBERT ADAARE FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
ALEX K. OSEI OWUSU FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS.
MARFUL-SAU, JSC: -
This appeal is taken against the
judgment of the Court of Appeal
sitting in Accra. By the
judgment which is dated 1st
February 2018, the decision of
the trial High Court, which
entered judgment for the
plaintiff/respondent/appellant
was set aside.
In this
appeal, the plaintiff/
respondent/appellant shall be
referred to as appellant and the
defendants/ appellants
/respondents shall be referred
simply as respondents. The
facts of this case briefly are
that the appellant was an
employee of the 1st
and 2nd respondents’
companies since 1985. She was
appointed a Director of the 1st
and 2nd respondents
after the death of one of the
Directors. According to the
appellant, relationship between
her and the 3rd
respondent, who was the Managing
Director of the 1st
respondent company became
unpleasant in 2010. As a result,
she was removed as a director of
the companies, her work schedule
was taken from her, she was
denied payment of some
allowances and was generally
discriminated against in the
work place. The appellant then
took out a writ in the High
Court claiming the following
reliefs:
‘’1. A declaration that the
purported ‘’Termination
of appointment as director’’
of the 1st defendant
company is void.
2. Declaration that the
purported ‘’Termination of
appointment as director’’ of the
2nd defendant company
is void.
3. An order that the plaintiffs’
monthly allowance of GHC 500 as
Director in the two companies be
paid.
4.The sum of GHC 3,500 being the
unpaid amount due to plaintiff
as director’s allowance for the
months of June, July and August
in the year 2010 and for the
months of September, October,
November and December, 2011.
5. The sum of US$400,000.00
6.The plaintiff’s monthly
allowance equivalent to the
Sales Manager’s monthly
commission on sales from
December 2010 to date.
7.Refund of all payments of
medical bills and monies paid
for repairs and maintenance of
vehicle used by plaintiff for
official duties.
7 a. An order directed at the
defendants to pay to the
plaintiff all other entitlement
found due to the plaintiff.
8.Compensation
for sexual harassment and
victimization by the 3rd
defendant and also
discrimination against the
plaintiff by defendants contrary
to the provisions of the 1992
Constitution.
9.An
order of injunction to restrain
the 3rd defendant from further
sexual harassment of
plaintiff.
10. An injunction to restrain
the defendants from victimizing
and discriminating against the
plaintiff.
11. Interest on all sums found
due and owing from the
defendants to the plaintiff at
the prevailing commercial bank
lending rate from the date when
those monies became due to date
of payment.
12. Costs.
The respondents denied above
claims and counterclaimed for
the following:
‘’i. order of perpetual
injunction restraining plaintiff
from using the defendants’
official business address for
her private and personal
business;
ii. order restraining plaintiff
from using and privately
benefitting from defendants’
trade
secrets and valuable commercial
information;
iii. order restraining plaintiff
from perpetrating further
unlawful acts against the
defendant companies;
iv. damages for
breach of
trust and confidence’
v. general damages;
vi. costs.
The record of appeal revealed
that the respondents rescinded
the decision to terminate the
appellant’s position as a
director thus reliefs 1 to 3
relating to the termination of
appellant’s directorship became
moot and same were dismissed.
The trial
High Court however entered
judgment for the appellant on
all the reliefs except reliefs
(8) and (9). The trial High
Court also held that the 3rd
and 4th respondents
were jointly and severally
liable for the acts of the 1st
and 2nd respondent
companies. The respondents’
counterclaim was dismissed by
the trial High Court.
The respondents who were dissatisfied
with the decision of the High
Court appealed to the Court of
Appeal, which set aside the
judgment of the High Court. The
appellant is now before this
court, urging us to set aside
the Judgment of the Court of
Appeal
on 11 grounds formulated in her
Amended Notice of Appeal. We
observed that out of the
11(eleven) grounds of appeal
formulated by the appellant,
grounds (1) to (10) all allege
error of law but no particulars
were furnished by the appellant,
contrary to the rules of this
court.
Rule 6 (1) (f) of the Supreme Court
Rules, CI 16
require an appellant who alleges error
of law as a ground of appeal to
provide the particulars of error
alleged. This court has in
several decisions expressed the
need for practitioners to
strictly comply with the rules
that regulate proceedings in the
court. Besides, it is trite that
appeals are conferred by statute
and for that matter parties who
intend to exercise their right
to appeal, must strictly satisfy
the provisions of the statute
conferring the right and rules
of procedure regulating the
appeal. In
Dahabieh
v S.A. Turqui & Brothers
{2001-2002} SCGLR 498,
this court speaking through
Adzoe, JSC reiterated why
appellants who allege error of
law as ground of appeal ought to
provide particulars thereof. At
page 504 of the report, the
learned jurist delivered as
follows:
‘’ We think that having regard
to rule 6, grounds(i) and (iii)
as set out above, do not comply
with the rules. Clearly, the
intention behind rule 6 is to
narrow the issues on appeal and
shorten the hearing by
specifying the error made by the
lower court or by disclosing
whether or not a point at issue
had earlier on been raised. By
that way, both the court and
counsel for the respondents
would be enabled to concentrate
on the relevant parts of the
evidence in the record of
proceedings and not waste time
on irrelevant parts of the
evidence. With respect to
questions of law, it is
necessary that the respondent
and his lawyer know well in
advance what points of law are
being raised so that they may
prepare their case and marshal
their authorities.
The appellant failed to
particularised the errors
alleged by the said grounds, to
enable this court effectively
address same as required by law.
The errors alleged cannot also
be inferred sufficiently from
the wording of the grounds to
enable us address same.
Accordingly, the offending
grounds (1) to (10) of the
appeal will be struck out, as
they are non-compliant with the
rules of this court.
The only competent ground of
appeal is ground (11), which is
that the judgment of the Court
of Appeal is against the
evidence adduced at the trial.
We will thus address this ground
for the determination of the
appeal. It is now trite that
when an appellant allege this
ground of appeal, the appellate
court is entitled to re-examine
the entire record to ascertain
whether the trial court or as in
this case, the first appellate
court, whose judgment is the
subject of the appeal, arrived
at its decision after a proper
evaluation of the evidence on
record. In this appeal
therefore, our primary duty is
to review the totality of
evidence adduced at the trial
and determine whether on the
balance of probabilities the
appellant was entitled to win
the contest or not.
See
Republic v. Conduah; Exparte
Aaba(Substituted by) Asmah {
2013-2014} 2 SCGLR 1032.
It is also trite that the onus
is on the appellant who alleged
this ground of appeal to
demonstrate from the record that
the court whose decision is
impugned erred in its evaluation
of the evidence on record or
that the court misapplied a law
in arriving at its judgment
occasioning substantial
injustice.
See Abbey
& Others v. Antwi V {2010} SCGLR
17
Owusu- Domena v.
Amoah {2015-2016} 1 SCGLR 790.
We have examined the record of
this appeal and the respective
statement of case submitted to
us by the parties and we are of
the considered opinion that the
appeal raises one fundamental
issue, which is, whether or not
appellant adduced credible
evidence to proof her claims
before the trial court, to
justify the ground that the
Court of Appeal failed to
properly evaluate the evidence
led by the appellant in proof of
her claims. We consider it very
crucial to address this issue,
since the appellant is urging
this court to set aside the
decision of the Court of Appeal
and judgment entered for her as
per the reliefs endorsed on her
amended writ of summons.
From the writ of summons, we
observed that all the claims
endorsed by the appellant were
capable of positive proof as
required under section 11 of the
Evidence
Act, 1975, NRCD 323. The
appellant was thus under a duty
to discharge the evidential
burden by proving that her case
was more probable.
Section
11 (1) and (4) of the Evidence
Act, provides thus: -
‘’ 11 (1). For the purposes of
this Act, the burden of
producing evidence means the
obligation of a party to
introduce sufficient evidence to
avoid a ruling on the issue
against that party.
(4). In other
circumstances the burden of
producing evidence requires a
party to produce sufficient
evidence which on the totality
of the evidence, leads a
reasonable mind to conclude that
the existence of the fact was
more probable than its non-
existent.’’
We will now examine appellant’s
reliefs and consider the
evidence led to prove same. For
the sake of clarity, we shall
examine the evidence adduced, if
any, for each of the reliefs
addressed in the judgment of the
Court of Appeal, since that
judgment is the subject of this
appeal. We will first deal with
the claim for the US$
400,000.00. The appellant case
was that she was one morning
called into a meeting and the 3rd
and 4th respondents
promised to pay her US$
50,000.00, every year as a
Director and reward for her
contribution to the growth of
the companies. The record
revealed that the appellant in
her pleadings and evidence
before the trial court could not
remember the year this promise
was made to her. She only
pleaded that the promise was
made in or about year 2004. The
appellant from the record could
not also tell the court who
between the 3rd and 4th
respondent specifically made the
promise to her.
The record is clear that apart
from repeating the pleading that
she was offered the sum of US$
50,000.00 a year, no credible
evidence was adduced by the
appellant in proof of this huge
claim. The appellant sought to
link an air ticket paid for her
vacation in Canada in 2006 as
evidence of part payment of the
sum promised her. Now, granted
that the promise was made in or
about 2004, as testified by
appellant, then as at 2006, when
the air ticket was purchased for
her, the companies owed her US$
150,000.00, representing
payments due her for 2004, 2005
and 2006. It is strange that
appellant being a Director of
the companies, would accept an
air ticket as part payment for
the sum due her and would not
even write to the Finance
Department of the companies to
demand payment for some money,
on account, out of the sum
allegedly owed her, especially
when she was travelling outside
the jurisdiction on vacation.
Besides, is the appellant
submitting to this court that
for the eight years that the
amount allegedly remained
outstanding (from 2004 to 2012,
when the writ was issued), she
never raised the issue at any of
the Directors meetings or even
demanded payment from the
Director of Finance of the
companies?
There is no dispute that the
onus was on the appellant who
alleged this promise to prove
same. The respondents having
denied the claim of the
US$400,000.00, it became the
duty of the appellant to adduce
credible evidence to prove the
claim and not to mount the
witness box to repeat her
pleadings. As we have stated
earlier in this judgment, the
claim for the US$400,000.00 was
capable of positive proof by
appellant but from the record
she failed woefully, to lead
credible evidence as required by
law to prove same. In the
circumstances, the Court of
Appeal did the right thing by
setting aside the decision of
the trial court. Indeed,
examining the record, we find it
difficult to discern the basis
for that award to the appellant
by the trial court, since there
is no evidence on record to
support the claim. We
accordingly, affirm the decision
of the Court of Appeal setting
aside the award of the US$
400,000.00 to the appellant.
See
Zabrama v Segbedzi 1991} 2
GLR 221
Finally, on this claim we are of
the considered opinion that, the
trial court was very wrong in
awarding same without evidence
from appellant in the form of an
ordinary resolution from the
companies. As rightly held by
the Court of Appeal, the claim
for US$ 400,000.00 could only
have been enforced by the court
if it was in compliance with the
then
Companies Act, 1963, Act 179. It
is provided by section 194 (1)
of the Companies Act as
follows:
‘’ Subject to this section, the
fees and other remuneration
payable to the directors in
whatever capacity, shall be
determined from time to time by
ordinary resolution of the
company, and not by a provision
in the Regulations or in an
agreement, which provision or
agreement is void.’’
Clearly, applying the above
provision in the Companies Act,
the Court of Appeal was right in
setting aside the claim as
observed above.
We will next address the claim
for GHC 3,500 as Director’ fees.
From the writ, appellant alleged
that respondents failed to pay
her director’s allowance for the
months of June, July and August
in the year 2010 and for the
months of September, October,
November and December 2011. On
this claim it was the respondent
who tendered exhibits 10 to 18,
being vouchers indicating that
appellant received payment for
fuel allowance and director’s
fees for the period. Exhibits
10,11,12,13,14,15 and 16 were
all signed by only two people,
the Cashier and a Director of
the company, obviously not the
appellant. Counsel for appellant
at the trial submitted that
appellant did not receive the
amounts stated on the vouchers,
because they were not signed by
appellant. Exhibit 17 and 18, on
the other hand, had three
signatures on them so there
seemed to be no dispute as to
whether appellant received the
amounts thereon.
The respondents however,
contended that appellant had
been paid her Director’s fees
and no arrears was owed. Indeed,
respondent called DW 6, Mr
Kamlesh Jha, the Financial
Controller of the 1st
and 2nd respondent
companies, who testified on the
15th October 2015. He
tendered exhibits 10 to 18, the
vouchers which were used to pay
appellant’s Director’s fees and
fuel allowance. Under
cross-examination, he insisted
that even though appellant
signature did not appear on some
of the vouchers, he tendered,
appellant did receive the
amounts. DW 6’s evidence is at
page 611 to 625 of the record of
appeal, volume 2. He stated at
page 615 of the record of
appeal, volume 2, that as at
September 2015, the respondents
did not owe appellant Director’s
fees. The Director’s fees for
the month of September 2015, was
paid on the 30th
September 2015 with voucher
tendered as exhibit 18.
The record of appeal showed that
the appellant did not sue for
fuel allowance, which means
respondent was paid her fuel
allowance. Indeed, the fact that
appellant was paid her fuel
allowance is clear from the
record of appeal. In her
evidence in chief at page 165 of
the record of appeal, Volume 1,
which was on the 18th
of November, 2013, the appellant
testified as follows:
‘’Q. Now, I want you to tell the
court. You described series of
treatment and acts committed by
these defendants on you which
prompted you to bring this
action. Can you tell the court
the state of affairs now? Have
these treatments ceased?
A.
My Lord, presently I am still
going through these treatments
because all my schedules have
been taken away from me; no
medical bills are paid, no fuel
allowance, I am given limited
amount for fuel allowance whilst
others are still presenting
their receipts for refund for
the fuel they purchased for
their cars, at the same time I
still don’t drive, I still don’t
have my medical bills being
paid, I still don’t have my
vehicle running expenses being
paid.’’
The appellant then confirmed
that she had been paid her fuel
allowance of GHC 250 a month at
page 173 of the record of
appeal, Volume 1. She again
testified as follows:
‘’Q. How about you? You are a
senior officer what about you?
A.
Unfortunately, when I resumed
from leave in the year 2010 my
privilege was withdrawn and I
was given a fixed amount i.e.
GHC 250 per month from 2010 till
present for my fuel allowance.’’
From the above evidence, it is
very clear that appellant was
paid her fuel allowance. Now,
exhibits 10 to 18 were tendered
by the respondents to dispute
the claim by appellant that she
was owed Director’s fee of GHC
3,500.00, for the period stated.
The said exhibits, as shown are
payment vouchers and each
narrates the payment of fuel
allowance of GHC 250 and
Director’s fee of GHC 500.00 per
month. Now, if the appellant
admits that she received the
fuel allowance, then it follows
that she received the Director’s
fees, as well, since both
amounts were paid with one
voucher.
The fact that appellant did not
sue for fuel allowance and did
not also produce any evidence,
for example, that she wrote to
demand payment or protested for
the non-payment of the
Director’s fees, confirms our
reasoning that the appellant was
paid the Director’s fees as
found by the Court of Appeal. On
the evidence, we think that the
Court of Appeal, did the right
thing by setting aside the award
of GHC 3,500.00 being arrears of
Director’s fees to the appellant
and we do affirm the decision.
We shall now consider the claim
for monthly allowance equivalent
to the monthly commission on
sales paid to the Sales Manager.
Our first observation on this
claim is that no specific amount
was claimed by appellant, on her
amended writ of summons.
Secondly, we note that the
appellant failed to led evidence
as to how much commission was
paid to the Sales Manager, the
equivalent of which was promised
her. According to appellant, her
work load increased so the
respondents agreed to pay her
monthly allowance, the
equivalent of the Sales
Manager’s monthly commission. To
prove the claim, appellant
tendered exhibit D1 to D12. The
respondents denied the claim of
monthly allowance and contended
that the payment to her as shown
in exhibits D1 to D12, were
rather commissions paid to the
appellant for introducing a good
customer from Burkina Faso to
the companies. The exhibits
tendered by appellant as
evidence of the allowance were
however described on the face as
‘’Fausty Commission’’ and not
allowance. The description on
exhibit D1 to D12, therefore
vitiates the testimony of
appellant that the payments were
monthly allowance for increased
workload.
From the evidence on record, we do
agree with the counsel for
respondents that the appellant
failed to prove this claim too.
Indeed, we think that if the
respondents were rewarding the
appellant in view of her
increased work load, at least
the appellant would have been
written to and her alleged hard
work recognised as the basis for
the alleged allowance. We are
therefore convinced in our minds
that what was paid to the
appellant per exhibits D1 to
D12, were commissions, as
indicated
on the exhibits and not
allowances as alleged by the
appellant. The Court of Appeal
was thus right in setting aside
this claim too.
Now, on the claim for the
payment of medical bills, it was
the testimony of the 3rd
respondent that, payment for
such claims must conform to the
Collective Agreement for Senior
Staff, which was tendered by the
appellant as exhibit A and is at
pages 769 to 785 of the Record
of Appeal, Volume 2.
Article 14 of the Collective
Agreement provides that the
company shall pay or refund the
cost of medical care, including
prescribed drugs only for
officers at the company’s clinic
or any medical establishment
specified by the company. The
appellant tendered exhibits K,
K1 to K3. The exhibit K is from
First International Clinic
however the appellant did not
lead any evidence to show that
this was one of the clinics
approved by the company. The
other exhibits were receipts for
drugs purchased by the appellant
from Pharmacy shops, but same
were not accompanied by
prescriptions as required by
article 14 of the Collective
Agreement. The argument by
counsel for appellant in his
statement of case that when
drugs are purchased the
prescriptions are retained by
the Pharmacy shops cannot be
true. The practise is that on
request the Pharmacy shop will
supply the prescribed drug and
cancel the prescription as
supplied and hand it over to the
customer, to enable the customer
claim the amount thereof. This
is a standard practise by most
Pharmacy shops and we take
judicial notice of same.
In this case without the
prescriptions attached to the
receipts, the respondents were
right in refusing to refund the
amount claimed by the appellant.
The
appellant being a director of
the company was expected to
comply with article 14 of the
Collective Agreement and the
Court of Appeal was right in
setting aside this claim too,
since the evidence lead to prove
same was not credible and a
breach of article 14 of the
Collective Agreement, the trial
court should have rejected same.
The claim to be addressed next
is that for Vehicle Maintenance.
We observed again from the
record that just like the claim
for medical bills the appellant
did not endorse any specific
amount on her writ of summons.
Appellants relief 7 was for
the’’ refund for all payments of
medical bills and monies paid
for the repairs and maintenance
of vehicle used by plaintiff for
official duties.’’
We agree
with the Court of Appeal that
the claim for monies paid for
repairs and maintenance was in
the nature of special damages
and same ought to have been
pleaded and particularized. The
trial court was thus wrong in
law when it granted the relief
without a specific amount to be
recovered by appellant. The
award was at large and we wonder
what amount the appellant was
entitled to recover from the
respondent. We think that this
claim was rightly set aside by
the Court of Appeal, as the
appeal against the setting aside
of this particular claim to this
court, just like the medical
claim had no basis in law.
From the record, the trial court
dismissed reliefs 8 and 9 which
were claims related to
compensation for sexual
harassment and victimization by
the 3rd respondent
and also for discrimination.
However, the trial court
proceeded to grant an injunction
against 3rd and 4th
respondents from victimizing and
discriminating against the
appellant. This was relief 10
of the appellant. The allegation
of discrimination of the
appellant was based on facts she
had failed to prove as
demonstrated in this judgment.
The fact that her schedule was
changed without more is not
enough evidence to justify a
claim for discrimination and or
victimization. There is no
evidence on record that the
appellant was a contract
employee and as such it was a
breach of service contract when
her schedule was changed. We are
of the opinion that in the
circumstances of appellant
employment, the job schedule
assigned to her was
administrative and it is not for
the court to order the
respondents to keep the
appellant on a particular job
schedule. Injuncting the
respondents, as the trial court
did under relief 10 was wrong
and the Court of Appeal did the
right thing by setting aside the
award of injunction.
The last issue we will address
in this appeal under the ground
that the judgment of the Court
of Appeal is against the
evidence adduced at the trial,
is the issue, whether or not the
trial court was wrong in holding
respondents jointly and
severally liable to appellant.
This issue is purely one of law
but same may be addressed under
this ground of appeal. See
Owusu – Domena v. Amoah,
(supra).
The records revealed that
appellant’s claims as endorsed
on her amended writ of summons
was based on her employment
relationship with the 1st
and 2nd respondent
companies. Apart from the
allegation of sexual harassment
against the 3rd
respondent, which was dismissed,
the evidence on record does not
show any cause of action against
the 3rd and 4th
respondents, since the pleadings
did not disclose any personal
liability against them. They
were joined to the suit because
they were officers of the two
companies. Now, having dismissed
the claim of sexual harassment
against the 3rd
respondent, we fail to
understand how the 3rd
and 4th respondents
were found jointly and severally
liable with 1st and 2nd
respondent companies.
The trial court however, decided
to lift the veil of
incorporation and held the 3rd
and 4th respondents
liable on appellant’s claims.
The record does not disclose any
evidence that entitled the trial
court to lift the veil of
incorporation.
A company is a juristic entity
which is separate from its
officers. The company can sue
and be sued. This is trite and
known as the principle in
Salomon v. Salomon {1897} AC 22.
This has been the law on the
subject of legal capacity of
companies and same was applied
by this court in the case of
Morkor
v. Kuma (East Coast Fisheries
Case) {1998 - 1999} SCGLR 620,
which was relied upon by the
Court of Appeal. The Court of
Appeal stated the law correctly
when it held at page 97 of the
record of appeal, Volume 3 as
follows:
‘’The Morkor v. Kuma
case numerated some of the
circumstances in which the
corporate veil may be lifted as
( i) where it is shown that the
company was established to
perpetuate fraud: See the case
of Re Darby; Ex parte Brougham
{1911} 1 QB 95; (ii) the veil
may also be lifted to prevent
deliberate evasion of
contractual obligation.’’
Indeed, we do not find any legal basis
on which the trial court sought
to lift the corporate veil of
the 1st and 2nd
companies to hold the 3rd
and 4th respondents
jointly and severally liable to
the appellant. The Court of
Appeal rightly decided the issue
on appeal and we endorse the
decision. Consequently, the
decision of the Court of Appeal
setting aside the trial court’s
order that 3rd and 4th
respondents were jointly and
severally liable with the other
respondents is hereby affirmed.
In conclusion, we are
of the opinion that from
evidence on record the appeal
has no merits whatsoever and
same will be dismissed. The
appeal is accordingly dismissed
and we affirm the judgment of
the Court of Appeal.
(SGD)
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
ANSAH JSC:-
I agree with the reasoning and conclusion of my
brother Marful-Sau JSC.
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
DOTSE JSC:-
I agree with the reasoning and conclusion of my
brother Marful-Sau JSC.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH JSC:-
I
agree with reasoning and
conclusion of my brother Marful-
Sau JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
PROF KOTEY JSC:-
I agree with the reasoning and
conclusion of my brother
Marful-Sau JSC.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ALBERT ADAARE FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
ALEX K. OSEI OWUSU FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS.
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