IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2017
LAWRENCIA ADAMS - (Plaintiff/Appellant)
COFFEY INTERNATIONAL DEV. LTD. - (Defendant/Respondent)
DATE: 23RD FEBRUARY, 2017
CIVIL APPEAL NO: H1/171/16
JUDGES: MARIAMA OWUSU J.A. (PRESIDING), A. DORDZIE J.A, LOVELACE - JOHNSON JA
NICOLE-MARIE POKU FOR PLAINTIFF/APPELLANT
MARTIN AGYEN-ASAMPONG FOR DEFENDANT /RESPONDENT
Coffey International Development Ltd, the respondent in this appeal is a United Kingdom based company. In 2010 Coffey International won a bid for a project known as Ghana Accountability and Responsiveness Initiative Programme; later known as Strengthening Transparency AndResponsiveness in Ghana (STAR-GHANA).
To execute the project the company engaged a number of consultants including the appellant herein Lawrencia Adams.
The relationship between the parties was regulated by two contracts. Exhibit “N” was an inception contract that lasted for the first 6 months of the project. Thereafter the parties executed exhibit “S”a contract that particularly regulated the respondent’s working relationship with the appellant.
In the course of working together some misunderstanding arose which led to the appellant tendering her resignation but later withdrew same.
At the end of the term of the contract the respondent terminated the appointment of the appellant. The appellant considered the termination unfair and therefore instituted an action at the High Court (Industrial Division Accra) for the following reliefs;
1. A declaration that the termination of Plaintiff’s employment with the defendant is unfair.
2. A declaration that plaintiff is entitled to be paid all her remuneration from March 2012 when Plaintiff’s employment was unfairly terminated up to April 2015.
3. An order that the defendant pays the plaintiff all her remuneration from March 2012 to April 2015 immediately.
4. An order that the defendant pays interest at the prevailing bank rate on all sums of money due her up to the date of final payment.
5. An order that the defendant pays the cost of the suit on a full indemnity basis.
The High Court dismissed plaintiff’s claims. Dissatisfied with the decision of the High Court, the plaintiff filed this appeal praying this court to reverse the decision of the High Court and enter judgment for the plaintiff in terms of the reliefs sought by her writ.
GROUNDS OF APPEAL:
Per the notice of appeal the appellant canvassed 7 grounds of appeal and indicated she would file further grounds of appeal but did not do so. The grounds of appeal disclosed in the notice of appeal are as follows:
The court below erred when it held that the evidence adduced by the plaintiff/appellant did not support plaintiff/appellant’s case that defendant/respondent represented to plaintiff/appellant that plaintiff/appellant would be employed as program Manager for the project that the defendant/respondent bid for.
The court below erred when itheld that the combined effect of exhibits L and M or on their own did not support plaintiff/appellant’s assertion that defendant/respondent assured plaintiff/appellant of employment for a minimum period of five years.
The court below erred when it held that the negotiations and discussions between plaintiff/appellant and defendant/respondent prior to the execution of exhibit S were in conflict with the contents of exhibit S.
The court below erred when it held that taking into account the negotiations and discussions that went on between plaintiff/appellant and defendant/respondent before the execution of exhibit S would amount to re-writing the contract between the parties.
The court below erred when it held that plaintiff/appellant was not employed by the defendant/respondent as an employee.
The court below erred when it held that the contract between plaintiff/appellant and defendant/respondent was terminated by the expiration of the contract.
The judgment is against the weight of the evidence led at the trial court
Rule 8 of the Court of Appeal Rules, 1997 C. I. 19 gives guidance as to how grounds of appeal should be formulated; sub rules 4 and 5 state as follows:
“(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.
(5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
It can be observed from the grounds of appeal stated above that grounds one to six (1-6) of the grounds of appeal clearly flout Rule 8 sub rules 4 & 5 of the Court of Appeal Rules, 1997 CI 19.
This Court, in its decision in the case of Zabrama v Segbedzi 2GLR 221 clearly defined how the procedural rules on the formulation of grounds of appeal must be applied. In respect of the requirement of rule 4,the court per Kpegah JA as he then was,held as follows: “The implication of these rules is that an appellant, after specifying the part of the judgment or order complained of, must state what he alleged ought to have been found by the trial judge, or what error he had made in point of law. I do not think it meets the requirements of these rules to simply allege "misdirection" on the part of the trial judge. The requirement is that the grounds stated in the notice of appeal must clearly and concisely indicate in what manner the trial judge misdirected himself either on the law or on the facts. To state in a notice of appeal that "the trial judge misdirected himself and gave an erroneous decision" without specifying how he misdirected himself is against the rules and renders such a ground of appeal inadmissible. The rationale is that a person who is brought to an appellate forum to maintain or defend a verdict or decision which he has got in his favour shall understand on what ground it is impugned”
The Supreme Court Rules, 1996 C. I. 16 rule 6 has similar provisions as Rule 8 of C. I. 19 and in the case of Dahebieh v S A Turqui& Brothers[2001-2002]SCGLR 498the Supreme Court re-emphasized the position of the law as stated in the Zabrama v Segbedzi case quoted above.
Grounds 1-6 of the grounds of appeal before us have failed to clearly state the particulars of error alleged by the appellant. Apart from this, these grounds are not concise, they are rather argumentative and more or less analyze ground seven (7) which is that the judgment is against the weight of evidence led at the trial.In fact this last ground, ground (7) incorporates all the arguments& analysis found in the first 6 grounds.
The 7th ground of appeal saves the situation and allows us to consider the submissions made by counsel in arguing the appeal; for the arguments he presents in support of grounds 1-6 are the same arguments canvassedin support of the ground that the decision of the lower court is against the weight of evidence. It is therefore not surprising that counsel for the appellant stated at the end of his submissions that he had no further arguments to offer in respect of ground 7.
Grounds 1-6 of the grounds of appeal we do not find to be good grounds of appeal, having flouted the procedural rules of this court. The said grounds are hereby struck out.
The sole ground of appeal we will consider in this appeal is ground 7,‘The judgment is against the weight of the evidence led at the trial court’. In arguing the appeal therefore, the appellant has the duty to properly demonstrate to this court that there arelapses in the judgment she is complaining about; in effect the appellant must prove thatshe adduced sufficient evidence to support her claims but the trial court failed to take into consideration the evidence that could have tilted the scale of justice in her favour. See the cases of Djin v Mussah Baako [2007-2008]1SCGLR andAbbeyvAntwi  SCGLR 17.
Before I consider the submissions made on behalf of the appellant to discharge that duty, there is a fundamental technical issue that I need to address.
The redress the appellant basically sought in the trial High Court was a declaration that the termination of her employment with the respondent was unfair. The first claim on her writ of summons reads: “A declaration that the termination of Plaintiff’s employment with the defendant is unfair.” All her other claims are consequential to the success of this claim.
The appellant’s stand all along is that she was an employee of the respondent company and not an independent consultant. In fact in the written submissions filed in this court, counsel for the appellant painstakingly emphasized this position of the appellant and made an exposition of the law on who an employee is as against an independent contractor. Counsel at page 32 of his written submission argued that in employment law the question as to whether a person is an employee or independent contractor is determined by the actual relationship that exists between the employer and the employee and not the words used to describe the person.
He went on to set out the criteria that classifies one as an employee and concluded that the appellant was a full blown employee of the respondent by the terms of exhibit S the contract between the parties.
If this is the case then in seeking redress for unfair termination of her appointment with the respondent she ought to be guided by the provisions of the Labour Act 2003, Act 651.
By her averments in the statement of claim the appellant’s complaints of unfair termination fall under S63 (3) (a) of the Labour Act. Section 63 of the Act numerates the circumstances where a termination or dismissal is deemed to be unfair and sub section 3 (a) reads: “Without limiting the provisions of subsection (2), a worker’s employment is deemed to be unfairly terminated if with or without notice to the employer, the worker terminates the contract of employment.
(a) Because of ill-treatment of the worker by the employer, having regard to the circumstances of the case,….”
In this case it is not the appellant who terminated the contract but the facts of the circumstances of the termination is that she was compelled to resign, she withdrew her resignation; even then someone else was appointed by the respondent who took her position. These circumstances clearly put her claim under S63 (3) (a) of the Labour Act.
S64 of the Labour Act 2003, Act 651 provides remedies for unfair termination and specifies the Labour Commission as the appropriate forum for such remedies.
S64 of the Labour Act reads:
(1) “A worker who claims that the employment of the worker has been unfairly terminated by the worker’s employer may present a complaint to the Commission.
(2) If upon investigation of the complaint the Commission finds that the termination of the employment is unfair, it may
(a) order the employer to re-instate the worker from the date of the termination of employment;
(b) order the employer to re-employ the worker, either in the work for which the worker was employed before the termination or in other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or
(c) order the employer to pay compensation to the worker.”
The issue as to whether these specific provisions of the Labour Act took away the jurisdiction of the courts in unfair termination cases was decided by the Supreme Court in the case of Felix Yaw Bani v Maersk Ltd. (2011)34 Ghana Monthly Judgments 65. The Supreme Court held that the concept of unfair termination as a cause of action is not a Common Law principle, it is not known to Ghanaian Common Law therefore the provisions under the LabourAct on unfair termination are to be construed as not directed at the courts. The Supreme Court further held that the courts can address issues on wrongful termination of appointment arising under S15 of the Labour Act.
This court, following the Supreme Court decision in the Bani case as stated above, held in the case of
Monica Woanya v Data Link University College Civil Appeal No. H1/33/2013 (unreported) dated 12/12/13 that the Labour Act took away the jurisdiction of the courts in deciding claims on unfair termination/dismissal. In cases where a plaintiff alleges unfair termination of appointment or unfair dismissal, the appropriate forum to seek redress is the Labour Commission and not the courts.
With this present position of the law,it is wrong to institute an action for unfair termination of employment in the High Court. The appellant went to the wrong forum to seek redress for her allegations of unfair termination of her appointment; theLabour Commission is the appropriate venue to institute the action in a form of complaint and not the High Court. The High Court was wrong to entertain the action, it had no jurisdiction to do so and it should have dismissed the action on that ground.
Technically therefore this appeal has no leg to stand on.
Be it as it may, I will go ahead and consider the merits of the appeal to make sure all issues are properly disposed of and substantial justice is done to the parties.
Counsel for the appellant’s submission:
A summary of the rest of the argument in the appellant’s written submission is that the appellant had produced sufficient evidence to establish that the respondent gave her the impression and the guarantee that she would be engaged for a total period of five years, which is the entire duration period of the project. The trial court was wrong when it found that the appellant did not adduce sufficient evidence to prove these facts. Counsel maintained in his argument that prior to the signing of exhibit S, there were discussions and impressions that implied that the parties intended the relationship between them to last for the whole period of the project which is five years and not ten months as stated in exhibit S. According to counsel the contents of exhibits P, Q, M, J and MM support the fact that the parties intended the relationship to be an employer / employee relationship and was to last for five years. The trial court failed to take in to consideration these exhibits when it came to its conclusion.
Counsel for respondent’s submissions
In reply to the submissions in support of the appeal counsel for the respondent argued that the appellant, at the trial, failed to adduce any evidence to support her claim that the respondent engaged her for a five year period which is the duration of the entire project.
The appellant, counsel argued was a member of a 20 member team of professionals whom the respondent engaged as independent consultants and not employees to carry out the project in question. The contents of the various exhibits tendered by the appellant to allege guarantee of a longterm of employment cannot be justified in the face of Exhibit S which specifically gives a term which the parties agreed to.
Counsel further submitted that appellant’s agreement was not unfairly terminated. She was not an employee; her engagement as an independent contractor was terminated in accordance with the terms of the consultancy agreement. Counsel further submitted that the parties reduced all their negations, discussions, email and all forms of pre contract documents into a written contract document – ExhibitS.The trial court ought to be guided by that sole document and the trial court was so guided by the terms of exhibit S; the trial court therefore committed no errors in coming to the conclusions it came to. The trial court could not have substituted the intentionsof the parties as specified in Exhibit
Counsel further submitted, the documents exhibits L, M, and N the appellant relied on to support her claim that the respondent engaged her for a longer period of five yearsare extrinsic evidence to Exhibit S. Relying on the cases of Allan SugarProducts Ltd. [1982-83]GLR 922 and AkimAkroso Stool& others v Asona Building Company Ltd[1989-90]2 GLR100, counsel argued that extrinsic evidence of subsequent or antecedent negotiations are inadmissible to vary, add to, contradict or alter a contract.
In determining the ground of Appeal that the judgment is against the weight of evidence, the obligation is placed on this court to re-evaluate the evidence and be satisfied that on the preponderance of the probabilities the conclusions of the trial judge are reasonably or amply supported by the evidence adduced at the trial. A number of decisions of the Supreme Court emphasize this obligation, the latest of those cases reported being In Re Asamoah(deceased) Agyeiwa& others v Manu [2013-2014] 2SCGLR 909 where the court held in holding 2 that:“The general principle in determining the omnibus ground of appeal that the judgment is against the weight of evidence, which is by way of re-hearing, is that the appellate court is placed in the same position as if the exercise was the original re-hearing. The court may, in exceptional circumstances, receive evidence in addition and may review the whole case and not merely the points as to which the appeal is brought.”
In pursuit of a proper discharge of the duty of re-evaluation placed on this court, I will recap the evidence led by the parties in the trial court.
The evidence adduced by the appellant at the trial to support her claims in brief is that, the respondent bid for and won a project known as Ghana Accountability and Responsiveness Initiative (GHARI). According to her she played a vital role in the team that negotiated for the programme. It was the role she played in defending the bid that helped the respondent to win the bid.Thereafter the respondent recruited her to work with them on the programme as the programme manager.
The appellant explained that for the type of project the respondent was to undertake, there is an initial period of 6 months known as inception phase; the respondent is expected to deliver some predetermined results at this stage. If that is achieved then the rest of the programme is awarded. The respondent requested her to fill a form indicating that she would be available for the programme’s entire period of five years, she did; the said form is exhibit M. This exhibit is a reply to an email requesting the appellant to fill in a template indicating her availability for the programme. It is worth reproducing the contents of exhibit M “I confirm that I have agreed to my inclusion in the proposal being submitted by Coffey International Development for the Department for International Development and other donor financed Ghana Accountability and Responsiveness Initiative (GHARI). My availability is exclusive to Coffey International Development Limited and I am not involved in any other competing proposal. In the event that the contract is awarded to Coffey International Development Ltd, I confirm that I will carry out the services allocated to me in accordance with the terms of reference, subject to agreement on timing and the details of any contract between Coffey International Development and myself.
I further confirm that I will maintain my availability to carry out this work for six months after the deadline for the submission of tender, in accordance with the Invitation to Submit a Proposal Package.
I declare that I have agreed to a fee rate of GBP 310 per day worked (inclusive of all taxes and any other charges), based on a 22 day month for 1,120 days.”
The appellant further testified that for the inception phase of the programme the respondent gave her a contract Exhibit N. She led her team as the programme manager to successfully complete the inception phase of the contract. As a result the respondent was awarded the rest of the contract to last 41/2years.
The appellant maintained that the impression she had from the emails that were exchanged between her and the respondent and the letter of availabilityexhibit M, quoted above is that the respondent meant to keep her as the program manager for the full period of the programme which was five years.
After the successful execution of the inception phase of the programme she entered a contract with the respondent. This regulated her working relationship with the respondent. This contract is Exhibit S. Before exhibit S was executed she raised issues on three points in the proposals made in the contract documentthese are:
a.) The currency of payment
b.) Restrictions not to engage in any other business
c.) Omission of renewal clause.
The appellant tendered exhibit Q in which the respondent addressed the issues raised by the appellant.ExhibitQ is an email from one Sabine Nguini of Coffey International Development Ltd, the respondent herein to the appellant and it states in part: “Attached is your amended monthly contract for your consultancy services for STAR-Ghana. Following your initial feedback, there are changes that have been implemented in this contract:
“1. as requested, the payment currency has been changed from Dollars to pounds ……………….
3) we cannot include a renewal clause to the contract, otherwise the consultants become full time employees.”(Emphasis ours)
This piece of evidence from the appellant is very crucial in deciding the issue of whether she was engaged by the respondent as an independent consultant or an employee. It had been argued forcefully that the appellant was a full time employee of the respondent and the expression ‘consultant’ is only a description or a tag given her. The contents of exhibit Q as quoted above however made it crystal clear at the negotiation stage of the contract that the respondent did not intend to engage the appellant as an employee.
The appellant it is obvious, understood this position and signed the contract Exhibit S. It is therefore very strange that in the face of such clear evidence that shewas engaged as a consultant, the appellant insists this court holds that she was an employee of Coffey International, the respondent.
The appellant further admitted in her evidence that the contract was for a period of 10months.According to the appellant a few months before the end of her contract she was compelled to resign from her engagement with the respondent. She put in a resignation letter but later withdrew same. The respondent terminated her appointment at the end of the 10months contract as stipulated in Exhibit S.
It is a further contention of the appellant that she had a long term agreement with the respondent and her understanding was that her contract with the respondent would end in May 2015 and not 30thApril 2012, hence her claims.
Evidence of the respondent.
The Respondent in its evidence to the trial courtmaintained it engaged the appellant as a consultant for a fixed period. The witness who represented the respondent explained the process the company goes through to engage consultants for their projects. First of all, suitable candidates are identified. They form the team that will work on the project. They ought to include this information in their proposal as they bid for the project. It is a requirement that they assure DFID the owners of the project that the consultants they have identified would be available to work on the project. They therefore ask the consultants to indicate their availability through the letter of availability tendered by the appellant as exhibit M.
For the STAR-Ghana project Coffey engaged the appellant as a consultant. The appellant requested in an email dated 20/5/2011 to Coffey’s project principal Jeremy Swainson that she as well as her team be contracted on an annual and renewable basis.
Coffey International executed a consultancy contract with the appellant on 5/11/2010, this is exhibit N. This was for the inception period of the project which was for 6 months.
Thereafter Coffey won the bid for the STAR-Ghana project, Coffey therefore entered contracts with its consultants for the execution of the project. Exhibit S is the contract Coffey signed with the appellant appointing her as programme manager/Team leader for a period of ten months commencing 1/7/2011.
Prior to executing the contracts, Coffey drafted and sent same to the consultants; negotiations and discussions were held by the parties particularly on terms of reference, terms of engagement, the exact nature of the contract and the task involved.
As between Coffey and the appellant, an agreement was reached before exhibit S was signed by both parties.
According to the respondent a few months before the end of the appellant’s contract with Coffey International, there was a misunderstanding and the appellant was asked to resign, she did, but later withdrew her resignation. They made attempts to resolve the issue amicably but this failed. At this stage the contract term had three months to end. Coffey offered to pay appellant one month remuneration in lieu of notice to sever the relationship and pay her 2 months remuneration upon submission of invoices.
The one month remuneration in lieu of notice was actually paid to the appellant though she rejected the amicable settlement. Coffey asked her to submit invoices for payment of the rest of the two months remuneration but she did not.
The contract term ended in March 2012, and Coffey terminated the relationship with the appellant.
Coffey International therefore does not owe the appellant any money.
The respondent maintains it did not terminate the appellant’s contract unfairly. She was engaged as a consultant, and not an employee. By The contract terms her contractual relationship with the respondent ended in March 2012.
The sole ground of appeal under consideration in this judgment is that the decision of the trial court is not supported by the evidence adduced before the trial court.The main issues that have arisen from this ground therefore are:
(a) Whether or not the appellant adduced sufficient evidence to support her claims at the trial and (b) whether or not the trial court was wrong in dismissing her claims.
On the first issue, though there is no dispute that exhibit S is the contract that outlined the working relationship of the parties, it has been urged upon this court by counsel for the appellant to hold that though the general rule with regard to construction of contractual documents is that the court must give effect to the intention of the parties as found in the document, that rule is not absolute, there are exceptions to it and that exception is applicable in this case. In other words the circumstances of this case demand that the court admits extrinsic evidence to give effect to the intentions of the parties in the contract exhibit S; he relied on the Supreme Court decision in the case ofGorman & Gorman V Ansong  I SCGLR 174 to support his view.
The general common law principlefollowed by the courts in construing written documents is stated
by Phipson in his book Phipson on Evidence 15th Edition paragraph 43-1 as follows:“Where the language of a document is clear and applies without difficulty to the facts of the case, extrinsic evidence is not admissible to affect its interpretation; but where the language is peculiar, or its application to the facts is ambiguous or in accurate, extrinsic evidence may subject to the qualifications…..be given in explanation”
This court in applying this principle in theAllan Sugar (products) Ltd case cited supra held as follows:“Although the matrix of facts, events, surrounding circumstances and nuances should be taken into account in ascertaining the real intentions of parties to an agreement and in construing it, where parties had reduced into writing their intentions they were bound by their written word and the use of extraneous material as aids to interpretation could only be resorted to in extreme cases of genuine doubt. Thus where, as in the instant case, a formal document had been executed showing the terms of the contract, no antecedent or subsequent negotiations were admissible to construe such a contract.”
In a subsequent decision of this same court in the Akim Akroso Stool case, the court held that: “What the words in a document meant could only be derived from the document itself. The intention of the parties had to be gathered from the written instruments. The function of the court was to ascertain what the parties meant by the words which they had used. The court was to declare the meaning of what was written in the instrument and not what was intended to have been written so as to give effect to the intention expressed; for it was not permissible to guess at the intention of the parties and substitute the presumed intention for the intention.”
In construing contractual documents the English Court of Appeal sounded a caution and said the construction of contracts must be considered within the material circumstances of the parties in view of which the contract was made. The text writer Phipson quoting Lord Wright in the case of Luxor v Cooper  Ac 108 wrote at paragraph 43-09 of his book Phipson on Evidence 15thEdition: “In using decisions as to the interpretation of contracts, it must be borne in mind that what is in question is the interpretation of a particular contract. Any attempt to enunciate decisions on the construction of agreements as if they embodied rules of law is to be deprecated. To some extent decisions on one contract may help by way of analogy and illustration in the decision of another contract, but however similar the contracts may appear, the decision on each must depend on the consideration of the language of the particular contract, read in the light of the material circumstances of the parties in view of which the contract is made.”
It is in light of this caution that I disagree with counsel for the appellant’s submission urging this court to rely on the decision in the Gorman & Gorman case and depart from the general principle and admit extrinsic evidence in this case. The facts and circumstances of the parties in the Gorman & Gorman agreement are very different from the facts and circumstances before us in this case.
In the Gorman & Gorman case, a husband and wife sold their property to the respondent; the terms of the sale were reduced into writing in the form of a receipt, the respondent made a part payment and the receipt was issued and signed by the husband only. When the respondent attempted to make final payment of the purchase price the appellants rejected same and said they were no longer interested in the sale of the property and tried to refund the part payment the respondent had made. The respondent successfully sued the couple for specific performance. They appealed to the court of appeal and lost; theyfurther appealed to the Supreme Court and contended that the High Court and the Court of Appeal failed to construe the contract of sale strictly,if they did, they would have found that the contract was not a valid contract because the wife who jointly owns the house was not party to the contract. The court rejected this argument because it found that the wife was part of the transaction. It was both husband and wife who entered the sale agreement with the respondent though the receipt was signed by the husbandonly.The Supreme Court treating this case in its peculiar circumstance departed from the general ruleand admitted extrinsic evidence. This is what the court, per AnsahJSC saidat page 184 of the report.
“Putting all the circumstances together, a reasonable man would come to the conclusion that the first defendant signed the contract with the blessing of the seconddefendant. It would therefore not lie in the second defendant’s mouth to allege that the sale was concluded without her prior knowledge. She would be estopped by her own conduct from making such a claim. This parole evidence does not contradict the written intention of the parties. It rather goes to show the real identity of the parties to the sale.Therefore, even though on the face of the document, the first defendant was the only signatory to the contract, the surrounding circumstances and the conduct of the second defendant showed that the first and second defendants were acting in concert” (emphasis mine)
In the present case, the question that arises is whether the various exhibits tendered by the appellant as prior negotiations to signing exhibit S suggest that a special circumstance exists and therefore the court must go outside the general rule and admit extrinsic evidence in construing exhibit S?I deem it necessary to reproduce some relevant portions of exhibit S which are as follows:
“Re: Letter of Appointment as Programme Manager/Team Leader.
The purpose of this letter is to offer you the consultancy position of Programme Manager and to set out the terms and conditions of your contract with Coffey International Development limited (“the Company”) or another subsidiary of Coffey International Limited (“The company”)
Term:You will commence your contract with the Company with effect from 1 July 2011 for the period of 10 months, unless otherwise terminated, ending 30 April 2012.
Payment to the Consultant:On production of an invoice by the Consultant in accordance with the provisions of this Section, the Company shall pay to the Consultant the fees in respect of the services.
Termination:You may terminate your engagement by providing the Company with four weeks’ notice in writing of your intention to terminate.The Company may terminate your engagement by providing you with four weeks’ notice in writing of its intention to terminate.
In the case of notice of termination by the Company being given, the Company may satisfy its obligations by payment in lieu of notice. In the event that payment in lieu of notice is made the payment will be based on your TRP as set out in this agreement as it may be varied from time to time and will exclude any other payments or benefits to which you may be entitled under this agreement.
Despite the preceding paragraphs the Company may terminate your engagement without notice in circumstances where you have engaged in misconduct which seriously prejudices the Company’s business or is such that it would be unreasonable for the Company to continue your engagement during the period of notice.
Except as provided herein, this Contract is not intended to be for the benefit of and shall not be enforceable by any person who is not namedat the date of this Contract as a party to.
The Contract and the documents and Appendices referred to herein constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of this Contract.
Nothing in this Contract constitutes any relationship of employer and employee, principal and agent or partnership between the parties.” (Emphasis added)
The contents of exhibit S as quoted aboveis explicit in its wording as to the duration of the contract and has categorically stated that the relationship is not that of an employer and employee.
The language of this contract document is clear on the duration or term and also clear on the fact that the appellant had been engaged as a consultant and not an employee. In such a circumstance the court cannot go outside the document to admit extrinsic evidence to construe the document.
At the negotiation stage of this contract the appellant requested among other things the inclusion of a renewal clause in the contract; this request is found in exhibit M which I have earlier quoted in this judgment. The respondent’s reaction to that request is contained in exhibit Q, the relevant portions of exhibit Q I have also quoted earlier. Exhibit Q provides written evidence of the understanding between both parties before the signing of exhibit S, that the appellant would be engaged as a consultant, it is not intended that she becomes a permanent staff of Coffey International.
Exhibit M is one of the documents the appellant relies on to argue that the relationship she had with the respondent was to last for five years. Exhibit M is the template the respondent requested the appellant to fill indicating that she will be available for the project yet to be awarded to Coffey International.Exhibit M is dated May 2010, and the last paragraph indicates how the appellant’s fee would be calculated. It states: “I declare that I have agreed to a fee rate of GBP 310 per day worked (inclusive of all taxes and any other charges), based on a 22 day month for 1,120 days.” This I believe was only an indication of how the appellant’s fee would be calculated. What is more, at the time of writing exhibit M the main contract for which the appellant was to be engaged had not yet been awarded to Coffey; it would therefore be absurd to conclude from this document that Coffey intended to employ the appellant for a lengthy period. It must be noted that the appellant in exhibit M made a declaration as follows: “I confirm that I will carry out the services allocated to me in accordance with the terms of reference, subject to agreement on timing and the details of any contract between Coffey International Development and myself”(Emphasis ours)
It is clear from the quotation above that the undertakings in exhibit M are subject to the terms of contract the parties will enter in the future. That future contract is exhibit S.
Exhibit S further made it clear by the clause “The Contract and the documents and Appendices referred to herein constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of this Contract” (Emphasis added)
The language of this document and its application to the facts totally rule out the need to rely on any extrinsic evidence to establish the true intention of the parties.
Exhibit S is a fixed-term contract. The section on ‘Terms’ fixed the term of the contract as commencing on 1 July 2011 for a period of 10 months and ending 30 April 2012.
Chitty on Contract defines a fixed-term contract as contract of employment that has a prior agreement on termination. The learned author further describes the termination of a fixed-term contract as ‘termination by influxion of time’ or by the expiry of the fixed term.’ (See Chitty on Contract Twenty-eighth Edition Vol. 2 paragraph 39-151)
The appellant’s contract ended by termination of the term specified.
There is nothing unfair about such termination for which the respondent could be held liable.
Other documents the appellant relied on to contend that the respondent intended to engage her as an employee and not a consultant and for five years and not 10months are exhibits P and MM but the contents of these disclose no such intention.Exhibit MM is an email from one Sabine Nguini circulatingminutes of a meeting on employment contracts. The appellant was one of the recipients of the email. The appellant replied thus: “I have a small note in red below, otherwise everything is ok.”
Sabine wrote in exhibit MM:
“Dear all, you will find below the minutes of our telecomemployment contracts for STAR-Ghana. Feel free to add/amend if I have forgotten or misunderstood something.
The aim of this telecom was to address STAR’s staff concerns with employment contracts and find a resolution that would satisfy the team while meeting Coffey’s Corporate responsibilities.
STAR’s staff doesn’t mind being on monthly contracts, but wants to do so on …… (Blurred)
Ghanaian legislation on long term vs. short term contracts
· The Ghanaian law stipulates that for long term employment, the employer (i.e. Coffey) must pay the PAYE.
· If you hire consultants for 12 months and beyond, you need to hire them as full-time staff. However, if it is less than a year, they can be hired on consultancy contracts that are renewable.
· If we adopt the consultancy contracts scheme, Coffey will pay the withholding tax, while contract holder is responsible for other taxes
· There seems to be a consensus among the STAR’s staff, that they prefer this option.”
Exhibit P is an email from Jeremy Swaison to the appellant forwarding a message to all the team members urging them to sign the contract quickly.
The findings of the court below are based on established documentary facts. We have carefully considered these facts as contained in the record. We find no reason to interfere with those findings.
The judgment we find to be amply supported by the evidence on record.
The appeal has no merit, it is hereby dismissed.
Cost of GH¢ 5,000.00 in favour of Defendant/Respondent.