Meier And Another Vrs Barnabe And Another (H1/15/2007) [2008] GHACA 20 (22 March 2008);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL - A C C R A
CORAM:- OWUSU [MS] PRESIDING]
A. ASARE KORANG, JA
DUOSE, JA
H1/15/2007
22ND MAY, 2008
1. PAUL MEIER ] … PLAINTIFFS/APPELLANTS
2. TRAPEQ LIMITED ]
V E R S U S
1. CHEDJI BARNABE ] … DEFENDANTS/RESPONDENTS
2. ZOUNON ALAIN ]
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J U D G M E N T
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A. ASARE KORANG, JA:- On the 11th day of May 2006, the High Court, Kumasi gave judgment dismissing the claim of the 2nd plaintiff – Company, 2nd appellant herein and found for the 1st and 2nd defendants, respondents herein on their counterclaim on the basis that the respondents had proved their case on the balance of probabilities and were entitled to succeed.
In favour of the 1st respondent, CHEDJI BARNABE, the learned trial judge made the following awards:
a. “The plaintiff company will pay to the 1st defendant an amount
equal to thirty six months salary as damages for wrongful
termination of the appointment of the 1st defendant.
b. The plaintiff company will also pay the sum of 500,000 US
Dollars to the 1st defendant as his end of service benefits.”
For the benefit of the 2nd respondent, ZOUNON ALAIN, the awards were in these terms:-
c. “The plaintiff Company will pay an amount equal to thirty six
months salary as damages for the appointment (sic) of the 2nd
defendant.
d. The 2nd defendant is also entitled to recover from the plaintiff
Company the sum of 125,000 US Dollars and one Nissan Terrano
vehicle No GT 7857 Q as his end of service benefit.”
The trial judge then ordered the plaintiff-company to pay costs of ¢15,000,000.00 to the defendants.
This judgment was founded upon a writ of summons first issued by the 1st plaintiff, PAUL MEIER, on 24th January 2003 against the defendants, which was endorsed for the following claims:
a. “An order to restrain the defendants………from interfering
with the management, administration or the running of
Trapeq Limited until the affairs of the company have been
investigated by the plaintiff.
b. General damages for interference resulting in serious financial
loss to the company.
On 30th January 2003, the defendants entered an appearance to the writ and that same day filed a statement of Defence and counterclaimed as follows:-
a. “10% of the cumulative value of the assets of TRAPEQ LTD.
b. 2nd defendant counterclaims for US$125,000 plus Nissan Terrano
No. GT 7857 Q.”
On 10th February 2003, Trapeq Limited was by order of the trial court joined to the suit as 2nd plaintiff and the 1st plaintiff as a necessary concomitant of the order of joinder amended his writ of summons to reflect the fact that TRAPEQ LIMITED was in the suit as 2nd plaintiff.
Thereafter the plaintiffs filed a Reply and Defence to the counterclaim on the same date and time that they filed a summons for directions. In the Reply and Defence to the counterclaim, the plaintiffs denied that the 2nd plaintiff made any promise to give 10% of the cumulative assets of Trapeq Ltd. and Roadgrip Ltd. to the Defendants. The plaintiffs averred that Roadgrip is a limited liability company and it was only that company that could give its assets to the 2nd defendant and not the 1st plaintiff who was only a shareholder of Roadgrip Ltd. and was therefore incompetent to validly dispose of
the assets of the company. The plaintiffs further denied entering into any valid agreement
with the 2nd defendant to give him US $ 125,000 and a Nissan Terrano vehicle.
Summons for directions was taken on 18th December 2003 and the issues set down for trial therein were:
1. “Whether or not the 1st plaintiff had terminated the appointment
of the defendants.
- Whether or not the defendants themselves had vacated their posts.
- Whether or not the 1st plaintiff made any valid agreement with the
defendants as to claims contained in the counterclaim.
- Whether or not the defendants mismanaged the affairs of the company
during the absence from Ghana of the 1st plaintiff in 2000.
- Whether or not the plaintiffs are entitled to their reliefs.
- Whether or not the defendants are entitled to their counterclaims.
- Any other issues raised by the pleadings.”
On the 24th January 2004, the plaintiffs opened their case and the 1st plaintiff testified for himself and on behalf of the 2nd plaintiff company.
I make reference to dates in deciding this appeal as I think subsequent events in the course of the trial in the court below make it particularly important to highlight dates.
Cross-examination of the 1st plaintiff was completed on 31st March 2004 and the suit was adjourned to 13th May 2004. Strangely, however, some evidence was heard and recorded by the court on 28th April 2004, that is before the adjourned date of 13th May 2004. (See pages 153 to 160 of the record of proceedings.)
At page 153, the record is headed “CONTINUATION OF EVIDENCE IN CHIEF” but there is no indication as to whose evidence is thereat recorded and for that matter which of the parties on that date was continuing to give evidence. This recorded evidence terminated at page 160 where after counsel for the plaintiff had asked only one decidedly benign question in cross-examination, the case was adjourned to 10th May 2004 for continuation. The case then went through a series of adjournments during which the plaintiffs changed solicitors. The next process taken by the plaintiff was a motion to “disjoin” (whatever that means) the 1st plaintiff from the action. The rationale for that application according to the affidavit accompanying it was that the 1st plaintiff had no personal interest in the suit and
so he should be “disjoined” to enable the issues in controversy to be determined between the 2nd plaintiff company and the defendants. Another relief sought in the same application was for leave to amend the first of the claims endorsed on the plaintiffs’ writ of summons. Reading through the plaintiffs’ affidavit in support, I understood the word “disjoin” to have the same meaning as “strike out.” In other words, the 1st plaintiff was inviting the court to cause his name to be deleted or expunged from the suit as a plaintiff. The defendants stoutly resisted the application which was argued on 15th December 2004. After arguments counsel for the plaintiffs for no stated reason asked for an adjournment. The trial judge obliged an adjournment and awarded costs against the plaintiffs.
It appears that no ruling was given on the application to “disjoin” the 1st plaintiff even though the plaintiffs moved the court to that effect.
However on 12th January 2005 the 1st plaintiff filed a Notice of Discontinuance wherein he wholly discontinued his action against the defendants with liberty to apply. Considering that the action in the court below was part heard, the 1st plaintiff having given evidence and been cross-examined, I think the proper step that the plaintiffs should have taken was to have applied for leave under order 26 rule 1 of LN 140 A to enable the 1st plaintiff discontinue the action against the defendants and not to have filed a Notice of Discontinuance simpliciter. Nevertheless, the trial judge on 17th January 2005 granted the 1st plaintiff leave to discontinue with liberty and awarded costs of ¢3,000,000.00 against the 1st plaintiff.
In effect, the 1st plaintiff’s cause of action against the defendants abated leaving intact the defendants counterclaim against the 1st and 2nd plaintiffs. The 2nd plaintiff therefore remained the only plaintiff in respect of the reliefs sought against the defendants and the 1st and 2nd plaintiffs became defendants to the counterclaim.
The evidence led on behalf of the 2nd plaintiff company by Paul Meier as Managing Director of the company was that he traveled to Europe in 2002 for medical treatment and left the management of the company in the hands of the defendants. Paul Meier returned to Obuasi where the 2nd plaintiff company carried on business to find that
the affairs of the company had been run down or mismanaged by the defendants. Output had slackened and there were complaints from some workers that they had been wrongly
laid off without being paid the right packages. SSNIT had taken the company to court for non payment of workers social security contributions for the year 2000 even though the company’s records showed that they had been paid. There were also ghost names on the company’s payroll. The company requested the defendants to proceed on leave to enable the Managing Director (Paul Meier) obtain unhindered access to office files and computers to facilitate an investigation of the affairs of the company.
The defendants refused to go on leave. The company wrote a dismissal letter and purported to serve it on the 1st defendant who refused to accept it. Attempts to settle the matter at the District Labour Office failed as the company insisted that the defendants must proceed on leave while the defendants stood their ground that the company and Paul Meier had terminated their appointments and should pay them their end of service benefits.
Plaintiff denied agreeing to pay the defendants anything at the end of their contract with the company and as the Labour Office was not in favour of the defendants proceeding on leave pending investigations, the dispute could not be settled and Paul Meier sued the defendants in court.
On the 23rd March 2005, counsel for the company announced in court that the company had closed its case whereupon the case was adjourned for the defendants to lead evidence on their counterclaim.
In their testimony, the defendants disclosed that Paul Meier commenced the business of the 2nd plaintiff company from scratch with them. The company first acquired two trucks on hire purchase in 1994 and by 2002 the company had grown rapidly and had expanded its operation to the extent that it owned several plant and equipment and other assets. It was the case of the 1st defendant that he entered into an oral contract with Paul Meier, who as sole active Member/Director of the company, TRAPEQ LTD. agreed to pay him US Dollars 500,000 or 10% of the value of the assets of the company to start his own business. In respect of the 2nd defendant-counterclaimant the package was negotiated in writing in French which was tendered in evidence as Exhibit 9. The English translation from French was tendered as Exhibit 9A it reads:
“Following the discussion we had on 31/12/2002, we finally
settled on $25,000.00 from Roadgrip Ltd. and $100,000 from
Trapeq in addition to Terrano.”
This agreement was signed by the 2nd defendant and countersigned by Paul Meier. The defendants therefore claimed as per their counterclaim.
It is to be noted that as defendants to the counterclaim Paul Meier and the company Trapeq Ltd., offered no evidence to nullify or deflect the reliefs sought by the defendants who procedurally became plaintiffs in the counterclaim. What Paul Meier and the company had on record was their Reply and Defence to the counterclaim.
In his judgment the learned trial judge found as a fact that an employer-employee relationship existed between the 2nd plaintiff company and the defendants and that the parties could mutually bring the contract of employment to an end but upon good grounds in the case of the plaintiff company.
The trial judge further found that when the 2nd plaintiff purported to terminate the appointments of the defendants on 31st December 2002 it did so wrongfully and therefore the defendants were entitled to recover damages from the 2nd plaintiff company for wrongful termination of their appointments. The measure of damages awarded was as indicated at the beginning of my judgment.
It is against the award of damages and the grant of the reliefs claimed by the defendants that the plaintiffs have appealed to this court.
The original grounds of appeal are as follows:-
a. “The judgment is against the weight of the evidence
b. The Honourable Court misconstrued the issues involved in the case.
c. The Honourable Court erred in evaluating the evidence.
d. The Honourable Court erred in awarding damages for wrongful
termination to the defendants when they have not asked for same.
e. The trial court erred when it awarded $500,000.00 to the 1st
defendant as end of service benefit when he had not asked for same.
f. The trial court erred in awarding $125,000.00 as end of service
benefit to the 2nd defendant.
- The trial court erred in dismissing the plaintiffs claim when same
had already been discontinued.
h. Further grounds of appeal could be filed on receipt of record of
proceedings.”
Subsequent to the grounds of appeal, the plaintiffs pursuant to leave granted them by this court on 17th January 2007 amended their Notice of Appeal and therein repeated their grounds of appeal and sought the following reliefs:
1. “That the judgment of the High court be reversed thereby
setting aside the judgment dated 11th May 2006.
2. That judgment be entered for plaintiffs on relief (2) on their
Writ of Summons.
3. That defendants/respondents be ordered to return to 2nd plaintiff/
Appellant the vehicles in their possession namely Nissan
Terrano No. GT 7857 Q and Toyota Land Cruiser with
Registration No. GR 4542 T.”
With regard to relief 3, I observe that nowhere in their evidence did the plaintiffs claim or state that a Nissan Terrano vehicle and a Toyota Land Cruiser belonging to the company, were in the custody of the defendants and that those vehicles bore the registration numbers above stated.
The items which Paul Meier alleged were in the custody of defendants were one refrigerator, a Micro Fish Reader, one car, one Nissan Pick-Up, one Computer Charger and a hand-spring telephone. (See page 119 of the record).
Relief (2) endorsed on the plaintiffs Writ of Summons in respect of which the plaintiffs ask that judgment be entered in their favour, was for general damages resulting in serious financial loss to the company. There was no evidence of any serious financial loss suffered by the 2nd plaintiff company. Indeed Exhibit 11 tendered through the 1st plaintiff was the Financial Statement of the 2nd plaintiff company which the 1st plaintiff admitted bore his signature. And on the evidence, according to the 1st plaintiff, the directors and accountants of the 2nd plaintiff company found the affairs of the company to be satisfactory.
Reliefs (2) and (3) are therefore not such as ought to be countenanced and granted in this appeal.
Of the grounds of appeal, (d) and (e) were argued together and the plaintiffs relied in their submissions on these grounds on the principle enunciated in DAM V. ADDO
[1962] 2 GLR 200 S.C which states that a court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with that which the party himself puts forward, whether he be the plaintiff or the defendant.
See also ESSO PETROLEUM V. SOUTHPORT CORPORATION [1955] 2. ALL E.R. 864 H.L.
Since it is the Writ of Summons and statement of claim that dictate the nature of a plaintiff’s or a defendant counter-claimant’s case, the plaintiff extensively relied on the decision in RE OKINE [2003-2004] SCGLR 582 at p. 618 which says:
“An order for a relief that was not claimed in the Writ of Summons
or in a counterclaim is absolutely null and void and must be
reversed and expunged.”
In Re Okine (supra) also stressed the proposition that in a judgment, the court must appropriately limit itself to what a party has indorsed (on a writ) and in the case of a counterclaim to claims enumerated in the counterclaim. As in this action the defendants at no time amended their counterclaim, I agree with the plaintiffs that the learned trial judge erred in awarding damages for wrongful termination of the defendants appointments when in their counterclaim, they had not asked for same and then again the trial judge erred in making an award of $500,000 to the 1st defendant as end of service benefit when he had not asked for same.
As it is clear that the learned judge made these awards which were at variance with the claims set out in the counterclaim, those awards ought not to be allowed to stand and they are therefore set aside.
Next to be argued were grounds (b), (c) and (f) which touched on the learned trial judge misconstruing the issues set down for trial and accepted by the court, his evaluation of the evidence and his allocation of the burden of proof.
It was contended that “wrongful termination and damages for same” were never issues borne out of the pleadings or set down for trial and that it was the learned trial judge who at page 275 of the record supplied the issue of wrongful termination by restating the issue thus:
a. “Whether or not the plaintiff company erred in terminating
the appointments of the defendants.”
As framed by the trial judge this issue was taken a step forward when at page 276 of the record the trial judge shifted the burden on the plaintiff company to prove that there was justification for terminating the appointments of the defendants particularly as the trial judge concluded that the plaintiff company erred in terminating the appointments of the defendants for which reason the defendants could recover damages for wrongful termination.
I think as the issue of wrongful termination was a concoction of the trial judge’s mind, it was incumbent upon him to determine whether there was indeed evidence to support a finding of wrongful termination. This determination could be made upon proof of the terms of the defendants’ contract of employment and further proof that the termination was in breach of the said terms.
See MORGAN V. PARKINSON HOWARD LTD. [1961] GLR 68 at p. 70.
From the evidence on record, there was no such proof of the terms of the defendant’s contract of employment.
On the date fixed for delivery of this judgment my attention was drawn to the Supreme Court decision in RE GOMOA AJUMAKO PARAMOUNT STOOL; ACQUAH V. APAA & Another [1998-99]. SCGLR 312 at p. 327 where the holding was that “in appropriate circumstances, a court of law can grant a relief not sought
for by a party. However, any such relief must first be supported by
evidence on record and, secondly, not be inconsistent with the stand
and claim of the party or parties in whose favour the relief is granted.”
The operative phrase therein is “in appropriate circumstances,” and the argument is that if there be any reliefs not set out in the counterclaim, the same may be allowed as long as evidence thereon has been led and forms part of the record and the evidence is in line with the claim of the defendants.
In that sense it was further argued the award of damages for wrongful termination by the learned trial judge was proper. I have looked at the evidence herein and I found no proper or properly cognizable or identifiable circumstances or facts to warrant the invocation of the decision in the Acquah V. Apaa case (supra).
I have already stated that the issue raised about wrongful termination of
appointment was a figment of the learned trial judge’s imagination, the issue having been framed by him and not by the parties.
The evaluation of the evidence complained of in this appeal partly related to the order made by the trial judge that the 2nd defendant was entitled to recover $125,000 plus a Nissan Terrano vehicle as end of service benefits.
It was submitted on behalf of the plaintiffs that since $125,000 payment by virtue of Exhibits 9 and 9a involved the payment of $25,000 by a company called ROADGRIP Ltd. and $100,000 by 2nd plaintiff herein (TRAPEQ Ltd.) and because Roadgrip Ltd. was not a party to the case, the award of $125,000 was wrongful.
I think the trial judge rightly found after evaluating the evidence that the plaintiffs and 2nd defendant validly negotiated an end of service package signed by 2nd defendant and 1st plaintiff. I am of the opinion that since there was in Exhibits 9 and 9a a reference to a specific payment due from Roadgrip Ltd., to wit $25,000, that payment ought to be excised from the order made by the trial judge. Except that this payment by Roadgrip Ltd. which is not a party is taken out of the package of the 2nd defendant, the payment of $100,000.00 by 2nd plaintiff company to 2nd defendant shall remain intact. Also to remain intact is the order made in respect of the Nissan Terrano No. GT 7857 Q because considering the relief sought by plaintiffs in their amended Notice of Appeal, that vehicle appears to be the property of 2nd plaintiff.
Finally the plaintiffs argued grounds (a) and (g) together to the effect that the judgment was against the weight of the evidence and the trial court erred in dismissing the plaintiffs claim. The submissions on these grounds were that since no evidence was led on what constituted 10% of the cumulative assets of the plaintiff company, no award could be made in respect of those assets. Again it was submitted as the judgment was based on new issues that were not pleaded and for reliefs not claimed in the counterclaim, the awards made by the trial judge are perverse.
I think, I have in my judgment amply demonstrated why the awards and orders made by the learned trial judge cannot be sustained, save for the claims in Exhibit 9 and 9a in favour of 2nd defendant which I have revised.
Except for that revised order, the appeal succeeds.
[SGD.] A. ASARE KORANG
JUSTICE OF APPEAL
OWUSU, J.A.:- I have already read the Judgment of my brother and I am entirely in agreement with the conclusion arrived at and the reasons assigned thereby.
[SGD.] R.C. OWUSU
JUSTICE OF APPEAL
I agree. [SGD.] I.D. DUOSE
JUSTICE OF APPEAL
COUNSEL:- MR. GYAN K. BAAFOUR FOR THE PLAINTIFFS/APPELLANTS.
MR. OBENG MANU JNR. FOR THE DEFENDANTS/RESPONDENTS.
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