IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2019
FEDERATED COMMODITIES LIMITED - (Plaintiff)
CHRISTIAN OWUSU - (Defendant)
DATE: 17 TH JULY, 2018
SUIT NO: OCC/37/17
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
AKUA POKUAA KWARTENG PLAINTIFF
STEPHEN KOOMSON FOR FRANCIS OWUSU ASARE FOR DEFENDANT
By a Writ of Summons and Statement of Claim issued from the Registry of this court on 14/12/2016, the Plaintiff which described itself as a Registered Licensed Cocoa Buying Company, claimed the following reliefs from the Defendant who was employed as a District Marketing Officer (DMO) in the Plaintiff Company:
a) Recovery of the sum of One Hundred and Forty- Two Thousand, One Hundred and Thirty- One Ghana Cedis (GHC 142,131.00) being the sum of money advanced to the Defendant by the Plaintiff for purchase of 424 and 437.73 bags of cocoa beans and fertilizers respectively but has failed to do so and the cost of Plaintiff’s fertilizers sold by the Defendant which he has refused to account for despite repeated demands on him by Plaintiff.
b) Interest on the said sum mentioned in relief (i) at the prevailing bank lending rate from 28th May, 2012 up to the date of full and final payment.
c) Cost on full indemnity basis.
According to the Plaintiff, the Defendant was the District Marketing Officer (DMO) in charge of the Plaintiff’s Konongo District in the Ashanti Region. Per the practice of the Plaintiff’s business, money was advanced to the Defendant at the beginning of every cocoa season to enable him purchase cocoa beans for the Plaintiff Company. In the 2011/2012 and 2012/2013 cocoa seasons, the Defendant could not deliver all the cocoa beans for which monies had been paid to him. At the beginning of each cocoa season, it was also the practice of the Defendant that fertilizer will be delivered to the Defendant for onward sale to the farmers. It is alleged that in the 2011/2012 and 2012/2013 cocoa seasons, the Defendant failed to pay for the 437.73 bags of fertilizer which he sold to farmers. On or about 28th May, 2013, the Defendant in writing undertook to settle the sum of GHC 142,131.00 but refused to pay. Rather, he tendered his resignation letter in July 2013, but the Defendant rejected the same and interdicted him.
These allegations have been denied by the Defendant on the bases that in the 2011-2012 cocoa season, monies advanced to him for the purchase of cocoa were all accounted for to the satisfaction of the Plaintiff including Purchasing Clerks Recovery of 130 bags, 411 bags of cocoa lost on account of being rotten due to bad weather and therefore unfit for export and 58 bags which were lost. In 2012/2013 season, the Defendant claimed that monies advanced to him for the same purpose were accounted for and there was purchasing clerk recovery of GHC 12,042.80. He also put up a defence that part of the monies advanced to him were used to renovate the Konongo Depot, and for payment of handling charges, which the Plaintiff failed to reimburse him. He further alleged that he accounted for all the 700 bags of fertilizer given to him to sell on credit to farmers. With regards to the undertaking, the Defendant claimed he was made to do so under undue influence, he gave particulars to that effect in paragraph 11 of his statement of defence. It is also alleged by the Defendant that the Plaintiff levelled charges of stealing against him but the case was struck out for want of prosecution, when he tendered in his resignation letter, the same was rejected by the Plaintiff, but has not received any salary, emoluments and earned leave from the Plaintiff after the court had discharged him. He therefore counterclaimed against the Plaintiff for the reliefs as set out below:
i. A declaration that the dismissal and or constructive discharge by the Plaintiff as employee of the Defendant is wrong.
ii. Damages for breach of contract of employment effective from 26th June, 2013.
iii. An order for payment of the Defendant’s salary from July, 2013 together with accrued interest to date of payment.
iv. Payment of severance award.
v. An order for the payment of earned leave not approved to be taken between October, 2004 and July, 2013.
vi. Payment of all salaries, allowances and benefits due to the Defendant in his position as District Manager.
vii. An order for such accounts, inquiries, directions or relief as may be just.
viii. An order for payment of provident fund contribution with accrued interest from October 2004 to June, 2013.
ix. An order for reimbursement of GHC 6,600.00 being the transportation cost for 440 bags of fertilizer.
By way of Reply, the Plaintiff denied the Defendant’s allegations, and contended that it was the duty of the Defendant and all DMOs of the Plaintiff to purchase only ‘good and quality’ cocoa. And, any losses arising from cocoa that is not fit for export, or unrecovered was to be deducted from the Defendant’s commission. It is the case of the Plaintiff that the Defendant undertook to pay for the 424 bags of cocoa after the reconciliation so there is no basis for the Defendant’s assertions that no reconciliation was made. The plaintiff also alleged that the Defendant was not cleared of the criminal charges; the three months given him to settle his indebtedness elapsed long before the case was struck out and per the practice of the company, the Defendant was not entitled to any salary or other entitlements after his misconduct as stated in the Plaintiff’s conditions of service; he was also not entitled to severance pay or any payment in lieu of leave.
ISSUES FOR TRIAL
· Whether or not the Defendant fully accounted for monies that were advanced to him for the purchase of cocoa during the 2011/2012 and 2012/2013 cocoa seasons?
· Whether or not the 700 bags of fertilizer supplied to the Defendant for sale to the farmers in the 2011/2012 and 2012/2013 cocoa seasons were satisfactorily accounted for by the Defendant?
· Whether or not the undertaking made by the Defendant on or about 28th May 2013 to settle his indebtedness to the Plaintiff to the tune of One Hundred and Forty-two Thousand, One Hundred and Thirty-one cedis (GHC 142,131.00), was made under duress?
· Whether or not the Plaintiff is entitled to his claim?
· Whether or not the Defendant is entitled to his counterclaim?
EVIDENCE OF THE PLAINTIFF AT THE TRIAL
The Plaintiff sought to prove its case through its debt recovery officer by name Franklin Owusu, he gave oral and documentary evidence. He tendered the Plaintiff’s appointment letter as a District Marketing Officer as exhibit ‘A’. According to him, during the 2011/2012 and 2012/2013 cocoa seasons, the Plaintiff advanced a total of Two Million, Seven Hundred and Forty Four Thousand, Six Hundred and Forty-four Ghana Cedis, Sixty-six pesewas (GHC 2,744,644.66) to the Defendant by way of transfer of funds through the Konongo branches of Ghana Commercial Bank Account No. 6051130001252 and Merchant Bank (GH) Limited (Now UMB) Account No. 000040100026184, for the purchase of cocoa beans. In support of these facts, copies of telegraphic transfers were tendered as exhibits B, to B30. However, the Defendant failed to deliver cocoa beans worth GHC 127,686 for the two seasons. He also tendered some weekly reports, described as ‘Sectorial weekly Cocoa Stock Summary’, as the exhibit C series. He explained that the difference between the cumulative cash transfers and actual purchase shows the number of bags of cocoa that the Defendant did not deliver.
By the end of May, 2013 when the Defendant seized working for the Plaintiff, the total bags of cocoa expected to be delivered to the Plaintiff and for which money was sent to the District was 29,795 bags, but the actual purchases made by the Defendant amounted to 28,929 bags, leaving a difference of 866 bags. Out of this number monies meant for the purchase of 229 bags remained at the Bank, thus the undelivered bags of cocoa further reduced to 637.Out of this number, the commissions due the Defendant and other entitlements were used to offset his indebtedness and thereby reduced his total indebtedness to 573 bags. The Plaintiff’s representative tendered copies of the Crop Season Operational Statements for 2011/2012 and 2012/2013 cocoa seasons to buttress this oral evidence, these documents are exhibits D and D1. He explained that the Defendant agreed to the Plaintiff using part of his commissions to offset part of his indebtedness, and further admitted that there were some cocoa beans which had been paid for but remained undelivered by purchasing clerks, that is, ‘society stock’. Subsequently, a reconciliation was done. The Defendant, a well- educated man, voluntarily undertook in his own hand writing to pay the monetary value of the unaccounted 242 bags of cocoa to the Plaintiff within a period of three months in the presence of witnesses. (See exhibits E and F).
With regards to the fertilizers, the Plaintiff’s representative testified that during the period under reference, the Defendant failed to account for bags of fertilizers sold by him and the monetary value is GHC 11,210.00 as evidenced by exhibit D1. Reacting to the Defendant’s claim that the Plaintiff owes him the cost of transporting fertilizers from the Depot to Purchasing Clerks, the Plaintiff’s representative’s testimony was that the claim is false, because the practice at all times material has been to keep the fertilizers at the Depot where the Purchasing Clerks were to purchase, pick up and then sell to farmers. Thus, if the Defendant ever transported any fertilizers to Purchasing Clerks, he did so in violation of the practice and at his own expense.
Prior to the cocoa seasons under reference, the Plaintiff’s representative said in evidence that the Defendant had short falls in cocoa beans which he was to have purchased with monies advanced to him by the Plaintiff, and he wrote a letter to the Plaintiff that these shortfalls be deducted from his salaries, this was done by the Plaintiff as in exhibits H, J, to J15. On the allegation that the Defendant used part of the monies advanced to him by the Plaintiff to renovate the Konongo Depot, the Plaintiff’s representative’s reaction was that monies advanced for the purchase of cocoa cannot under any circumstances be used for any other purpose, and that the rehabilitation that was sanctioned and approved by Plaintiff was separately paid for in the following manner: GHC 13,000.00 by payment vouchers and cheques; and GHC 5,000.00 by cash as evidenced by exhibits K, K1 and L to L3. It is also the testimony of the Plaintiff’s representative that all handling charges were duly settled at the Defendant’s District, and so the Plaintiff does not owe the Defendant or anybody else for handling charges. When it became obvious that the Defendant was not making any effort to settle his indebtedness, the Plaintiff’s representative said the Plaintiff caused his arrest and further rejected the resignation letter he presented.
However, three days after his arrest, the Defendant reported to his office and handed over his tools of trade and never returned to the office. These are evidenced by exhibits M, N, N1 and P. The representative of the Plaintiff added that per the conditions of service of the Defendant, he was not entitled to salaries or any other benefits during a period of interdiction, and it is also not the practice of the Plaintiff Company to pay its employees in lieu of leave. Therefore, the Defendant, who did not even have any outstanding leave, cannot claim any entitlement or compensation for leave not taken between 2004 and 2013. Concluding, the Plaintiff’s representative told the court that as at May, 2013, the Defendant owed the Plaintiff the sum of GHC 138,898.00. He invited the court to dismiss the Defendant’s counterclaims as baseless.
EVIDENCE OF THE DEFENDANT AT THE TRIAL
The Defendant admitted the facts of his employment as well as the Plaintiff Company’s procedure for transferring cash to its Districts and withdrawal of the same through Akuafo cheque jointly signed by either the Sector Manager or District Marketing Officer; and one Purchasing Clerk. According to the Defendant, the Purchasing Clerks are the Plaintiff’s representatives in dealing with the farmers and Plaintiff held monthly meetings with these Purchasing Clerks. The society stocks are verified and validated each week after which the Sector Manager draws a delivery of stocks plan for the Purchasing Clerk involved. At the time of his employment, the Defendant said there were already some Purchasing Clerks at post who were purchasing cocoa directly from the farmers. He also gave evidence to the effect that he complained about the wrongful deduction of port charges from his salaries because the Purchasing Clerks who caused the shortages are also employees of the Plaintiff Company. He tendered an operational statement of account at the end of the 2010/2011 main crop season as exhibit 2, and according to him, there were no outstanding stocks against his District. For the 2011/2012 and 2012/2013 cocoa seasons, the Defendant admitted that the total amount of monies advanced to his District was GHC 2,700,005.00 and not GHC 2,744,644.66. He gave the price per bag of cocoa for the 2011/2012 and 2012/2013 cocoa seasons as GHC 205.00 and GHC 212.00 respectively, but denied that he failed to purchase 424 bags of cocoa worth GHC 127,686.00.
In paragraph 19 of his witness statement, the Defendant created a table detailing the operations at his District for the period under reference. He indicated therein deductions such as PC Commissions, port surcharges, funds spent on renovation, among others. Further, he explained that his exhibit ‘3’ matches with the outstanding society stocks and that the actual undelivered stocks stood at 139 bags. Out of the 139 bags, he explained that 58 bags were the balance brought forward/ outstanding from 2004/5 main crop season, which had been prosecuted in court as per his exhibit ‘4’; a further 56.8 bags were recovered from the Purchasing Clerks. He tendered a copy of Purchasing Clerks’ payment and commission statement as exhibit 5 series. The Defendant went on to testify about some cocoa which got rotten because of the Warehouse which was in a state of disrepair, consequent to which the District Quality Control Officer directed that the Warehouse be renovated without delay. In due course, the Defendant said the Plaintiff was notified about shortages arising from the bad weather and poor state of the depot.
On the renovation of the warehouse, the Defendant said the Plaintiff approved of the renovation and released a total sum of GHC 18,000.00 for that purpose, but the actual cost of the renovation was GHC 26,214.00.
Concerning the fertilizer in issue, the Defendant admitted that the Plaintiff sent 700 bags of fertilizer worth GHC 23,100 to his District for onward transfer to the Purchasing Clerks at the expense of the Plaintiff Company. He tendered copies of the fertilizer supply agreement and Ministry of Food & Agriculture payment voucher indicating that the cost of transportation of the fertilizer was the responsibility of the supplier, in this case, the Plaintiff, as exhibits 12 and 13. Yet, the Plaintiff failed to pay for transportation cost and handling of the fertilizers to the tune of GHC 8,360.00. As at the time of reconciliation, the Defendant said 437.73 bags of fertilizers worth GHC 14,445.00 was outstanding with the Purchasing Clerks. Between 2004/2005 to 2012/2013 cocoa seasons, the Defendant said the Plaintiff failed to pay handling charges totaling GHC 155,383.593 despite repeated demands, an example being the reminder letter sent to the Plaintiff, exhibit 9. On 26/05/2013, the Defendant said when he reported to work, the Plaintiff’s MD came to his District depot and demanded for certain documents covering the renovation, port deliveries, fertilizers and weekly stock returns summary.
About two hours later, the Defendant said the Operations Manager came to the depot to perform a reconciliation exercise on fertilizers with him. Thereafter, the Operations Manager led him to the Police Station where he was arrested, detained and later released on bail.
With regards to the admission of shortages and undertaking given by the Defendant, he told the Court that on 28/05/2013, the Plaintiff’s Managing Director (MD), invited him together with his guarantors to a meeting. At the meeting, he was made to give a brief report of the activities at his District so he talked about the poor state of the Warehouse & its renovation, the rotten cocoa and society stocks. The MD became agitated and demanded that he accept responsibility for the loss. After about two hours of arguments and counter-arguments, coupled with threat of job loss, police arrest and the like, the Defendant said his mother (now deceased), who was one of his guarantors, advised that he complies with the demands made by the MD. The Defendant said the MD gave him a document to peruse, and a blank paper to reproduce the content in his own handwriting. He stressed that due to the posture of the six men who were at the meeting and the threat of job loss, he complied. The document he wrote is his exhibit 14.
On 15/07/2013, the Defendant said he tendered in his resignation letter but same was rejected by the Plaintiff on the basis that since he was under police criminal investigation, he ‘was still under the umbrella of the Company until investigations were over’. On the same day, the Defendant said he was handed a letter of interdiction. Eventually, the Defendant said he was arraigned before the Juaso Circuit Court and after various adjournments spanning almost two years, the Plaintiff was unable to produce any witness so the court struck out the case for want of prosecution on 10/03/2015 as evidenced by exhibit 18. Throughout the two- year period, the Defendant said he was not allowed entry to the workplace and could not prepare any comprehensive reconciliation with the Plaintiff. Concluding, the Defendant told the Court that his Provident Fund since the year 2004 has not been paid to him. The Defendant called two witnesses. His wife who was present at the meeting with the Plaintiff’s MD testified as DW1; she corroborated his evidence that he was coerced into admitting responsibility for the losses and made to sign the undertaking under duress. DW2 who described himself as a Deputy Depot Head Porter, testified about the state of the Warehouse, just as the Defendant did, adding that from September 2011 to February, 2012, the volume of cocoa received at the District depot shot up and so they had to resort to stacking the cocoa to create more space, as opposed to the normal sealing packing.
And, when the rains set in, the leakages in the Warehouse affected the contents in the depot, eventually, most of the cocoa beans got rotten. DW1 also introduced evidence to the effect that towards the end of July, 2013, the Plaintiff’s MD invited him to the Plaintiff’s operation office at Amakom, made certain promises to him, and also inquired from him whether he knew the location of the assets allegedly acquired by the Defendant, notably, a fuel filing station, but he indicted to the MD that he had no idea of any assets of the Defendant. In order to effectively determine the issues set down for trial, the court must determine whether the Purchasing Clerks (PCs) who purchased cocoa directly from the various societies were employees of the Plaintiff Company. On the one hand, the evidence of the Plaintiff’s representative as well as the submissions by counsel for the Plaintiff are that the District Marketing Officers (DMO), engage the PCs and /or have the right to choose the PCs to work with at any given time as independent contractors. So, the Plaintiff does not issue out any employment letters to the PCs and the PCs are accountable to the DMO. On the other hand, the evidence of the Defendant and his counsel’s submissions are that the PCs are also employees of the Plaintiff Company just as the DMOs. Therefore, the liabilities of one employee, in this case the PCs, cannot be imposed on another employee, in this case, the Defendant as a DMO. Per the Defendant’s exhibit ‘5’ series, he dealt with so many PCs at the society level. Yet, he was unable to call even one out of the whole lot to demonstrate his point that the PCs are indeed employees of the Plaintiff Company. That apart, he also failed to tender any appointment letter or any such document as proof of his assertion, which has been vehemently denied by the Plaintiff.
But, the Defendant made some admissions under cross-examination that shows the nexus between him as a DMO, and the PCs. On 06/02/2018 whilst under cross-examination, the Defendant admitted that as a DMO, monies withdrawn from the designated accounts for cocoa purchases is handed over to him and that he was accountable to the Plaintiff for the cocoa that was purchased by the PCs for the Plaintiff, so he sent weekly reports to the Sector Manager with regards to stocks which his District is able to purchase and any stocks outstanding. Further, during cross-examination on 15/02/2018, the Defendant admitted that before the 2011/2012 cocoa season, his District recorded shortages and he was surcharged, even though he claimed the shortages were caused by the PCs. From the admissions made, the evidence of both parties, the submissions made by the respective counsel and the general operational practice in the private cocoa purchasing industry which this court takes judicial notice of, there is no doubt at all that PCs are independent contractors who purchase cocoa for the cocoa buying companies. However, the PCs have direct contact with the cocoa farmers who are grouped into societies. Monies are advanced to the DMOs by the Cocoa Purchasing Company, the DMO in turn advances money to his PCs to do the actual purchasing and to hand over the stock so purchased to the District Depot. So, there is no direct contractual or employer/employee relationship between the Plaintiff as a cocoa buying Company, and the PCs. But, there is a principal/agent relationship between the DMOs and the PCs as the facts and the evidence of this case shows. It is prudent that the DMOs put in structures to ensure that the PCs deliver on their promise because the DMO bears the ultimate liability for losses incurred by the PC. For instance, since the DMOs are bonded, it will not be out of place for them to require each PC to provide a guarantor or guarantors in respect of the monies advanced to the PCs for purchases. In effect, a DMO is to act proactively as far as these monetary advancements are concerned. Better still, if a person is not comfortable with such arrangements, then it will be better that person does not accept to work as a DMO.
Having cleared that hurdle, the court will proceed to resolve the issues set down for trial. In determining the issues, the court will be guided by the principles of proof in civil suits as espoused by Kpegah JA (as he then was) in the case of Zabrama v Segbedzie (1991) 2 GLR 221, and as codified in sections 10, 11(4) and 12 of the Evidence Act, 1975, NRCD 323, that is, a party bears the burden of proof of his or her assertions which have been denied by that party’s opponent, and that party is required to adduce cogent evidence so that on the preponderance of all the evidence on record, the court will find that party’s assertions as more probable than not. Both parties will be held up to this standard of proof in civil suits.
WHETHER OR NOT THE DEFENDANT FULLY ACCOUNTED FOR MONIES THAT WERE ADVANCED TO HIM FOR THE PURCHASE OF COCOA DURING THE 2011/2012 AND 2012/2013 COCOA SEASONS.
WHETHER THE UNDERTAKING MADE BY THE DEFENDANT ON OR ABOUT 28TH MAY 2013 TO SETTLE HIS INDEBTEDNESS TO THE PLAINTIFF WAS MADE UNDER DURESS.
Based on the evidence of the Plaintiff’s representative as captured above, it was submitted by Counsel for the Plaintiff that during the period under reference, the total cocoa purchase cash transferred to the Defendant’s District was GHC 2,744,644.66. She argued that the Defendant’s contention that the total sum was GHC 2,700,005.02 is unsubstantiated. For the Defendant, counsel argued that the exhibits B series on which the Plaintiff based its total figure of GHC 2, 744,644.66, proves the contrary. His point was that given the Plaintiff’s admission that the producer price of cocoa for the seasons under reference was GHC 205.00 and GHC 212.00 respectively, the figure quoted by the Plaintiff does not correspond to the bags of cocoa which the Plaintiff expected to receive from the Defendant’s District as per its operational statement of account, exhibit D. Upon a perusal of the record, the Court notes that the Defendant admitted during cross-examination on 06/02/2018 that monies for cocoa purchase were sent to his District through Telegraphic Transfers (exhibits B series), and through inter-district transfers. With this admission, there is no basis for the argument that the telegraphic transfers done through the exhibits B series do not add up to the GHC 2, 744,644.66 quoted by the Plaintiff.
The Defendant has been silent on the quantum of inter-district transfers which he admittedly received. The Court has no reason to doubt the contents of the Plaintiff’s exhibit D, dated 24/01/2013, that is, the operational statement of account for 2011/2012 crop season which was duly signed by the Defendant as accurate. Per that document, 479 bags of cocoa were outstanding by the close of the season. On the face of the document, this figure was arrived at after various ‘Head Office Deductions’ had been made under these headings: PC Commission, Primary evacuation Top-Up, Port Surcharges paid by DMO, Credit from previous years and Provident fund. Per exhibit D, the Defendant was notified to pay all the outstanding stocks by the end of the 2012/2013 cocoa season. In the subsequent 2012/2013 Cocoa Season, the Defendant does not dispute that he in fact received various cash transfers from the Plaintiff for cocoa purchase, payment of PC Commission, among others which have reflected in the exhibit B series. This is irrespective of the fact that the Defendant refused to sign the operational statement of account for that year, exhibit D1. Since exhibit D1 has not been verified and signed by the Defendant, the court cannot hold him to the content of that document as counsel for the Plaintiff has prayed for. But, the question that remains unanswered is whether the Defendant was able to settle the 2011/2012 outstanding stocks, and whether he duly accounted for the 2012/2013 cocoa cash monies? This is where exhibit ‘F’ comes in. Exhibit ‘F’ is an acknowledgment by the Defendant of the outstanding stocks for the years under reference and his commitment to settle the same. Whereas the Plaintiff contends that exhibit ‘F’ was executed voluntarily, the Defendant maintains that he was made to sign under duress, that is amid intense pressure from the MD at the time who threatened him with job loss.
The court has closely reviewed the testimonies of the Defendant and his wife/guarantor, DW1 on the events leading to the execution of exhibit ‘F’, and finds that the Defendant executed the same after the reconciliation done at the 28/05/2013 meeting at the Plaintiff’s operation office. The Court does not find any cogent evidence of duress or undue influence against the Plaintiff Company. There is no showing that the Defendant, his wife and mother were made to sign exhibit ‘F’ at gun point, their lives were not in danger and if the content was not a true reflection of the reconciliation that was carried out at the said meeting, then, just like exhibit D1, they could have elected not to sign the document, and thereafter, seek redress in the appropriate forum. After all, considering the salary level of the Defendant, he would have been better off with a job loss than to admit owing a gargantuan amount if he truly believed he did not owe. Obviously, even if there was a threat of job loss, that alone would be insufficient proof of coercion or undue influence under the circumstances of this case. In the circumstance, the Court holds that exhibit ‘F’ was executed by the Defendant voluntarily and it is therefore binding on him. Per that document, the outstanding stocks for the 2011/2012 and 2012/2013 Cocoa Seasons, which the Defendant admitted are 317 bags and 107 bags respectively. Since monies had been advanced to the Defendant for these stocks and he was unable to deliver the stocks, the only irresistible conclusion is that the Defendant failed to fully account for the monies advanced to him for the 2011/2012 and 2012/2013 cocoa seasons. Further, the court finds that the monetary value of the stocks referred to in exhibits ‘F’ is GHC 87,669.00 and not GHC 142,131.00 in view of the credible evidence on record that the producer price of cocoa for the 2011/2012 and 2012/2013 cocoa seasons was GHC 205.00 & GHC 212.00 per bag respectively. The court concludes that it is the sum of GHC 87,669.00 which the Defendant undertook to pay per exhibit ‘F’, and not GHC 142, 131.00.
WHETHER OR NOT THE 700 BAGS OF FERTILIZER SUPPLIED TO THE DEFENDANT FOR SALE TO THE FARMERS IN THE 2011/2012 AND 2012/2013 COCOA SEASONS WERE SATISFACTORILY ACCOUNTED FOR BY THE DEFENDANT.
Counsel for the Plaintiff upon realizing an obvious error pointed out in her closing submissions that the fertilizers in issue were given to the Defendant during the 2012/2013 Cocoa Season. The fact of delivery of 700 bags of fertilizer to the Defendant to be supplied on credit to the cocoa farmers through the Defendant has not been disputed by him. In his evidence-in-chief before this court, the Defendant maintained that as at the time of reconciliation, 437.73 bags of fertilizer worth GHC 14,445.00 was outstanding, but the Defendant had failed to pay the associated expenses such as transportation which amounted to GHC 8,360.00. But, whilst under cross-examination, the Defendant admitted that under the Fertilizer supply agreement, he was the Supplier DMO, which meant that he was to supply the PCs and collect payment. Thus, he was accountable to the Plaintiff for the outstanding balance of 437.73 bags of fertilizer even though he had indicated the names of the PCs and their outstandings. Despite this admission, his counsel argued in his closing addresses that the fertilizers were supplied in September 2012, and the farmers were to complete payment by September 2013; but the Defendant was arrested on 26/06/2013 and was constructively discharged on the same day.
This argument by counsel for the Defendant does not find favour with the court because a period of eight (8) months from the date of supply of the fertilizer was sufficient for the Defendant to have recovered payments from the farmers. He has also failed to adduce any convincing evidence to the effect that he made reasonable demands for payment of the outstanding bags of fertilizer but the payments were not forthcoming. Exhibit D1 being the Plaintiff’s own document, the content can be construed against the Plaintiff. Per that document, there was a set off of GHC 5,685 against the unrecovered fertilizer money, bringing the total outstanding to GHC 11,210.00. As far as the fertilizer supply is concerned, the Defendant’s liability to the Plaintiff stands at GHC 11,210.00 and not GHC 14,445.00. The Defendant’s exhibit 12, the Fertilizer Supply agreement will not avail him. This is because the agreement was made on 21/05/2010 and it was valid for one year, specifically, the 2009/2010 crop year. So, it was the duty of the Defendant to have pursued the PCs for the monies to be recovered from the individual beneficiary farmers.
In respect of the renovation sanctioned by the Plaintiff, the evidence shows that a total amount of GHC 18,000.00 was advanced to the Defendant in three tranches. He was expected to operate within the approved budget. He authored exhibit K1, titled “Further Anticipated Expenditure”. This document was submitted on 23/01/2013, it is even full of alterations and unreliable. In any case, it was submitted before exhibit ‘F’ was made, therefore, any figure quoted therein, which is doubtful anyway, cannot be set off against his indebtedness as indicated in exhibit ‘F’.
WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO ITS CLAIMS.
With the findings made, and conclusions reached above, the Defendant is liable to pay to the Plaintiff the sum of GHC 87,669.00 for the unrecovered society stocks and GHC 11, 210.00 for the unpaid fertilizer given to him as the supplying DMO.
WHETHER OR NOT THE DEFENDANT IS ENTITLED TO HIS COUNTERCLAIM.
The first counterclaim is for a declaration that the dismissal and /or constructive discharge of the Defendant as an employee of the Plaintiff is wrong. The basis of this counterclaim is that the Plaintiff did not follow the laid down disciplinary procedure of the Company’s conditions of service. The Plaintiff’s representative gave evidence to the fact that the Defendant was invited for a hearing after his interdiction but he failed to attend the said hearing, but turned round to deny that he was ever invited. From July 2013 when the Defendant attempted to resign and was interdicted, it is the argument of the Plaintiff that the Defendant never took steps to demand and know from the Plaintiff the status of his employment contract.
Exhibit 17 dated 18/07/2013 is evidence of the Defendant’s interdiction, and the contents are well known to him, his salary was to be withheld until the issue of huge losses caused to the company was resolved in the court of law. This letter was written after his resignation letter was rejected. The evidence before this court also shows that on 29/06/2013, the Defendant handed over his tools of trade, exhibit P. The Court finds that the Defendant’s interdiction was in consonance with section 26 of the Plaintiff’s Conditions of Service, exhibit Q. Per exhibit Q1, the Defendant was given a copy upon his employment by the Plaintiff. He cannot feign ignorance of the contents therein. The Court accepts as credible the Plaintiff’s representative’s evidence that the Defendant refused to attend a hearing subsequent to his arrest. By the preponderance of the evidence before this Court, the Defendant abandoned his post by the end of June, 2013 at a time when he had incurred huge losses and had reneged on his promise to re-pay the monies involved. Such “gross Misconduct” is even a ground for summary dismissal. On the evidence before this Court, the Plaintiff cannot be said to have constructively dismissed the Defendant. Therefore, the Defendant is not entitled to any damages for breach of his contract of employment. As the evidence stands, the Defendant has not worked from July, 2013 to date.
He has not earned any salary which the Plaintiff can be compelled to pay. By signing exhibit D, the Defendant had invariably agreed that his provident fund, primary evacuation top up, port charges paid by him, credit from previous years and PC commission be set off against his indebtedness. All these happened before exhibit ‘F’ was made. Thus, the Defendant is not entitled to be paid any such monies. Again, his claim for reimbursement of GHC 6,600.00 being transportation cost for 440 bags of fertilizer is unsubstantiated and the same cannot be granted. It is the Defendant’s own misconduct which caused him to walk away from his job after the interdiction, if the Plaintiff had not sued to recover the monies owed by the Defendant , that would have probably been the end of the story. The Plaintiff did not, either expressly or indirectly cause the Defendant to lose his job, he simply walked away when he could not refund monies he had failed to account for and had been interdicted. In the circumstances of this case, the Defendant is not entitled to any severance award.
Finally, the parties went into accounts before exhibit ‘F’ was made, therefore, this court will not order the parties to go into account. The Defendant is not entitled to any of the reliefs in his counterclaim. Judgment is accordingly entered against the Defendant and in favour of the Plaintiff in the sum of GHC 87,669.00 representing the undelivered bags of cocoa for the 2011/2012 and 2012/2013 cocoa seasons and which were outstanding as at 28/05/2013; and GHC 11,210.00 being the unrecovered value of the fertilizers given to the Defendant to supply for the 2012/2013 cocoa season. The Court awards interest on the sum of GHC 87,669.00 and GHC 11,210.00 at the prevailing bank rate and at simple interest from 28/05/2013 till date of final payment. For the avoidance of doubt, the current Bank of Ghana 91-day Treasury Bill Rate is to be used as the prevailing bank rate.
Costs of GHC 8,000.00 is warded against the defendant in favour of the Plaintiff.