IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2017
LUIGI MARTINIS -(Plaintiff)
OUMAROU KANAZOE - (Defendant)
DATE: 12 TH JULY, 2017
SUIT NO: CM/TOCC/0003/17
JUDGES: ERIC K. BAFFOUR, ESQ. JUSTICE OF THE HIGH COURT
PLAINTIFF REPRESENTED BY ALEXANDER ACKON
DR. KWAKU ADDEAH WITH NANA AFIA MISAA AMOH, MISS FOR PLAINTIFF
AMA OPOKU AMPONSAH, MRS. WITH GEORGINA ARTHUR, MISS FOR DEFENDANT
Plaintiff claims the following reliefs in its amended writ filed at the Registry of the court:
a) A declaration that the defendant (Oumarou) Kanazoe owes the plaintiff unpaid salaries, allowances and other benefits totaling €468,589.72 under his employment contract made on 30th April, 2012 as amended and whose total breakdown is found in the statement of claim.
b) Interest on the said amount and on previous delayed payments at the prevailing market rate of interest from the date of default to date of final payment.
c) A further declaration that in acting as stated in the above pleadings, the Defendant has breached the said employment contract.
d) General damages for breach of contract.
e) An order of the Court compelling the 2nd Defendant to pay to the Plaintiff his 10% share of the profit as agreed.
f) Cost, including legal fees incurred before and after filing this suit.
g) An order compelling the Defendant to deliver to the Plaintiff his tax clearance certificate covering the period 2012, 2013, 2014 and 2015, failing which they must be ordered to pay to Plaintiff 38% of all payments made to Plaintiff and those yet to be paid to satisfy his tax obligation in Italy.
h) Any other relief.
Defendant did not only deny the claim of plaintiff but has counterclaimed in his amended statement of defence seeking the following reliefs:
a) An order directed at the plaintiff to pay to the defendant, an amount of three Thousand, Seven Hundred and Sixteen Euros and Thirty One Cents €3,716.31 being the overpaid funds from the defendant.
b) Interest on the said €3,716.31.
c) Costs including litigation costs.
d) Any other reliefs that this honourable court deems just and equitable.
The substance of the case of the plaintiff as gleaned from his amended statement of claim is as follows: Defendant, a road construction company, headquartered in Burkina Faso, won a bid to rehabilitate the Dodo Pepesu – Nkwanta road usually referred to as the eastern corridor road (and hereinafter called as such) in a contract signed between the defendant and the government of Ghana. Defendant acting through its instrumentality of Kanazoe Frere engaged him as a project manager under a fixed term contract of two years from 30th of April, 2012 to 1st April, 2014. However, he claim that the contract had to be extended by an oral agreement when the work could not be completed as scheduled. As a corollary to his contract, plaintiff contends that defendant impressed with the high level of his professionalism, agreed to offer him 10% of the profit as his share of the contract from the eastern corridor road project. Plaintiff avers that in course of the execution of the project, defendant showed reluctance in the payment of his salaries, as well as the staff under him, contrary to the terms of the agreement and his terms of engagement, as its managing director did not show much concern about his welfare. This compelled him as well as the supervisor of the project, Louis Berger SAS/Transtech Consult to write a number of letters to the Managing Director of defendant and the stakeholders of the project. Defendant to counter this wrote a letter, according to plaintiff, misrepresenting to Ghana Highways Authority that it had made good its obligations to plaintiff. Defendant proceeded on the strength of the misrepresentation to write to him to terminate his appointment from the 10th of May, 2015 and followed this up by seizing his vehicle and evicted him from the Eastern corridor project site thus compelling him to find alternative accommodation at Accra.
This plaintiff asseverates, was not all the subterfuge defendant adopted against him as immigration service was also notified to revoke his visa. To him even though an amount of €111,974 had been paid him, it falls far below his full entitlements as it did not include allowances outstanding for over a year, salaries accrued after 29th April, 2015. He then proceeds to particularize his entitlements to be:
Unpaid salary of €5.307.30
.Unpaid allowances for April, 2012 to August, 2012 €7.500.00
One month salary in lieu of notice of termination €7,116.00.
Unpaid air fare to and from Italy €18.532.50.
Unpaid allowance for work done on Sundays and public holidays for 2012-2014 as €72.278.56.
10% of profit of €2.4 million made up to August 2014 on the contract as €240.000.00.
. Unspent leave days but worked for 4 days as €1,815.36.
Unpaid taxes on €308,000.00 i.e 38% being €117.040. this then brings it to a grand total figure of €468,589.72
To Plaintiff as Defendant has breached the fundamental clauses in the contract he is entitled to the claims tabulated supra and prays for an order for defendant to furnish him with his tax clearance certificates for the years worked to enable him have access to the whole payment made to him in Italy as without it he stands to lose 38% of the monies paid him so far and hence his claim before the court.
Defendant has traversed the essential factual basis of the claim of plaintiff on many aspects. First defendant contends that defendant is the same as Enterprise Oumarou Kanazoe with Djibril Kanazoe as the Managing Director. And that Plaintiff was employed by Kanazoe Frere, which is a separate legal entity from Defendant. Defendant claim further that the conditions that trigger clauses such as article 11 of the contract in respect of delays in the payment of salaries and wages, had not arisen. Defendant refuted the claim that it was not paying the wages and salaries of his workers on the Eastern corridor project. And if there were any delays in the payment of the salaries of plaintiff it was mainly due to plaintiff’s request that he made to defendant for his salaries to be withheld to enable him resolve his tax obligations in his native Italy. And besides, the few occasions that there were delays they were due mainly to the fact that the release of funds from the contracting party for the project also delayed. That in any case by 29th of April, 2015, the plaintiff had been fully paid an amount of €111,974 in full satisfaction of all amounts due and owed to plaintiff. And it was after the receipt of this amount that plaintiff caused his solicitors to demand a further amount of €21,423.30. However, upon reconciliation, plaintiff admitted that he had instead been overpaid and agreed to refund an amount of €3,716.39 to defendant as overpayments made to him. Defendant deny owing plaintiff in terms of air fares as plaintiff was only entitled to 45 days leave per year to be taken at four different times and the liability of defendant was limited to holidays taken within the 45 day leave period and not convertible into cash for the employee nor does defendant pay any additional money if the employee takes all the leave period at a go. Again, defendant deny any monies due to plaintiff in respect of unpaid allowances for Sundays and public holidays as it is within the computation of €1.500.00 paid as overtime allowance. The 10% share of profit to plaintiff is also denied as unfounded. And regarding the procurement of tax clearance certificate, defendant claim that it is for plaintiff to make the necessary application before the relevant tax authorities as it had complied with its tax obligations to its employees.
ISSUES FOR TRIAL
With the pleadings closed the following were the issues that were admitted for trial:
Whether or not the defendant acted through Kanazoe Frere in engaging the plaintiff as a project manager under a written contract for a fixed period during the rehabilitation of the Dodo-Pepesu – Nkwanta road.
Whether or not upon the expiry of the said written contract, it was renewed by defendant’s managing director, Djibril Kanazoe.
Whether or not the defendant Oumarou Kanazoe, Enterprise Kanazoe and Kanazoe Frere are separate legal entities that performed aspects of works under the contract awarded to the defendant by the government of Ghana under the management of Djibril Kanazoe.
Whether or not Kanazoe Freres was a sub-contractor to the defendant under the terms of the project executed by the defendant and the government of Ghana.
Whether or not as part of the said oral agreement the managing director agreed to pay to the plaintiff 10% of the profits made because of the professionalism shown by the plaintiff in the discharge of his functions.
Whether or not after the second quarter of 2012 the defendants showed reluctance and or delay in paying salaries and allowances to the plaintiff and other staff and also misrepresented to the Ghana Highways authority that it had fully paid all plaintiff’s emoluments to him.
Whether or not on the date of the termination of the plaintiff’s appointment, the defendant owed plaintiff any salary and allowances, arrears as well a 10% of the profit, all totaling €351.549.20.
Whether or not the defendant paid the plaintiff’s taxes amounting to €17,040.00.
Whether or not the defendant breached the terms of the employment contract which entitles the plaintiff to the reliefs.
Any other issues raised on the pleadings.
Four additional issues were filed by the defendant and they were:
Whether or not the initial delays in payment of the Plaintiff’s salaries was at the behest of the Plaintiff who made oral request for his salaries to be withheld to enable him resolve his tax obligations in his country.
Whether or not the Plaintiff has been paid an amount of €111,975.00 by his employer in full and final satisfaction of all amounts due the Plaintiff.
Whether or not after a reconciliation of accounts between the Plaintiff and Defendant the Plaintiff is indebted to defendant in the sum of €3.716.39 which is yet to be paid.
Whether or not the defendant is entitled to its counterclaim
THE EVIDENCE AND BURDEN OF PROOF
Plaintiff testified in person and had as many as over thirty exhibits admitted on his behalf ranging from Ex ‘A’ through ‘Z’ to ‘DD’. Among some of the critical documents admitted on behalf of the plaintiff, include the following:
The contract between the government of Ghana acting through the Ministry of Roads and Highways and the defendant company Oumarou Kanazoe admitted as Ex ‘A’. An extract of article 13 of the project contract as Ex ‘B. An expatriate fixed period contract project as Ex ‘E; A letter of temporary employment as Ex ‘J’ An email correspondence between plaintiff and Djibril Kanazoe as Ex ‘K’ Further email exchanges between the parties as Ex ‘L’ series. A tabulation of what plaintiff deems to be his entitlements as Ex ‘M’ Letter from Enterprise Oumarou Kanazoe terminating the employment of plaintiff as Ex ‘T’. What plaintiff states to be the arrears owed him admitted as Ex ’X’. Defendant on the other hand testified through its Managing Director, Djibril Kanazoe and two other persons, namely, Joseph Tosure, defendant’s accountant and Robert Quansah, the eastern corridor project concrete works supervisor. Some of the critical exhibits worth mentioning are:
Change of directorship form of Enterprise Oumarou Kanazoe as Exhibit ‘1’ series. A version of Exhibit ‘E’ admitted on behalf of plaintiff admitted as Ex ‘3’ series. A table summarizing the salary and allowances of plaintiff as Ex ‘5’ Invoices and tickets of plaintiff as Ex ‘6’ series. Documents showing payment of taxes in Burkina Faso as Ex ‘7’ series. Documents showing payments made to plaintiff as Ex ‘8’ series. It is hackneyed in a civil case such as this as to the party that bears the burden of proof as well as the burden of producing evidence. I find it apt to cite the dictum of Brobbey JSC on the burden of proof and the burden of producing evidence in the well-known case of AGBOSU v KOTEY; IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 in terms of the following that:
“The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour...”
See also TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 ACKAH v PERGAH TRANSPORT LTD  SCGLR 728 HENRY DOE SAMLAFO V. GREDA &ANOR.  26 GMJ 94, CA EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW Examining the issues for determination set down at the close of pleadings at the General Jurisdiction before the transfer of the suit by an order of the Chief Justice in exercise of her powers under section 104 of the Courts Act, Act 459, it appears that the issues could conveniently be tacked in the following:
ISSUES 1, 3 AND 4 REGARDING THE ENTITY THAT ENGAGED PLAINTIFF ON THE EASTERN CORRIDOR ROAD PROJECT
Plaintiff claims in his amended witness statement that upon winning the Eastern corridor road project, the defendant, a Burkina Faso based company, acting through its instrumentality of Kanazoe Freres engaged him as a project manager. He however states in paragraph 11 of the witness statement that he was employed by defendant and yet defendant claim that it was rather Kanazoe Freres that employed him Indeed in paragraph 4 of the witness statement of defendant he states emphatically that plaintiff was employed by Kanazoe Freres but made to work on the Nkwanta project. In cross examination, plaintiff maintained his stand that he was employed by defendant in the following:
Q: Were you associated with any other Kanazoe company apart from Kanazoe Freres and Enterprise Kanazoe
A: I was never employed by Kanazoe Freres but was employed by Oumarou Kanazoe and executed a work for Enterprise Oumarou Kanazoe
In resolving the issues as to who employed plaintiff and whether Oumarou Kanazoe is the same as Enterprise Oumarou Kanazoe, a critical examination would have to be taken of relevant documents such as Ex ‘B’, ‘C’, ‘D’, ‘E’, ‘3’, ‘H’, ‘AA’ and ‘CC’. The contract for the rehabilitation of the Eastern corridor road was between the Ministry of Roads and Highways of the one part and Oumarou Kanazoe from Ex ‘A’. Exhibit ‘B’ per its clause 13:1 stated that the contractor was to superintend the work and if it were to appoint a representative, then such representative ought to be approved by the supervisor of the project. It stands to reason, therefore, that it is only the defendant that could hire and fire employees to be engaged in the project and no other company no matter how such a company may be related to the contractor. During trial there was a sharp division between the parties as to whether Ex ‘E’ or ‘3’ was the true document of engagement of plaintiff. The contents of the two exhibits are the same. However, whiles Ex ‘E’ is embossed with the stamp of Enterprise Oumarou Kanazoe that of Ex ‘3’ has the stamp of Kanazoe Freres. Plaintiff admitted that his signature appears on both documents. He further notes that his Ex ‘E’ was not handed over to him on the date of 1st April, 2012 when his engagement contract was executed but rather ten months later. In both documents the contracting parties at page 1 are the plaintiff and Kanazoe Freres. Defendant through its Managing Director, Djibril Kanazoe, during cross examination admitted putting the stamp of Enterprise Oumarou Kanazoe on Ex ‘1’. Djibril Kanazoe appears to be the alter ego of not only the defendant company but its sister company of Kanazoe Frere, putting stamps of these sister companies on contracts not specifically meant for one was a common practice. Plaintiff’s counsel therefore pin pointed the use of stamps for different sister companies of Kanazoe in the following:
Q: I put it to you that just as you sued Enterprise Oumarou Kanazoe stamp on the project contract which was inconsistent with the party on that contract, you have also used the Kanazoe Frere stamp later to mislead the plaintiff and to further promote your defence agenda in this matter
A: No My Lord. It was Kanazoe Frere that employed plaintiff...”
Plaintiff demonstrated more candour and forthrightness in the box on this issue than Djibril Kanazoe, on the disparity between Ex E’ and ‘3’. Besides, learned counsel for plaintiff in his address is correct to point out that notwithstanding the claim in Ex ‘3’ that plaintiff was engaged by Kanazoe Freres, there is overwhelming evidence on record that it was defendant that throughout the period of engagement paid his salaries, allowances, bought his flight and provided him with every facility that he was entitled to. Kanazoe Frere was unknown to the stakeholders and had no part to play at all in the execution of eastern corridor road and could not have employed plaintiff to work on the project work. Further evidence that contrary to Ex 3, that it was defendant that engaged plaintiff can be gleaned from paragraphs 18 and 19 of the amended statement of defence where defendant admit that it terminated the contract of plaintiff. It is only the entity that engaged a party as an employee that has the mandate of terminating the contract and defendant making the admission of terminating plaintiff’s employment, I make a finding that it was defendant that engaged plaintiff and is a proper party before the court. I further hold and find that Ex ‘E’ was the one delivered to plaintiff and not Ex ‘3’. As to whether Oumarou Kanazoe and Enterprise Oumarou Kanazoe are different companies or same was adequately answered by Djibril Kanazoe when he came under cross examination in the following:
“Q: I put it to you that in Ex ‘1’ there is no evidence that Oumarou Kanazoe as a company had its name to Enterprise Oumarou Kanazoe
A: The name of the company has always been Enterprise Oumarou Kanazoe, it is people who call it Oumarou Kanazoe, but the name in all the documents is Enterprise Oumarou Kanazoe, it was changed from Oumarou Kanazoe to Enterprise Oumarou Kanazoe.
Q: At the time you were executing the contract with the government of Ghana did Oumarou Kanazoe exist as a legal entity or a company.
A: Yes My Lord, Oumarou Kanazoe exist, also known as Enterprise Oumarou Kanazoe, it is the same entity.
Q: Why is it that the description of the parties of the contract, Oumarou Kanazoe is not described as otherwise called Enterprise Oumarou Kanazoe.
A: It is very common in the French speaking world for companies who does construction to be called enterprise. Our company name is Enterprise Oumarou Kanazoe. People just shortened it to be called Oumarou Kanazoe but it is the same entity...”
I will accordingly find as a fact that on this sub issue, Oumarou Kanazoe and Enterprise Oumarou Kanazoe are one and the same company as the defendant has been using the name interchangeably. Having made a determination of the competence of the parties before the court and the correct terms of engagement of plaintiff by defendant, I now find it necessary to delve into a determination of the substantial matters before the court, starting not in order of the issues set down at the application for directions but rather what I deem to be weightier in terms of the claims.
CLAIM OF BREACH OF CONTRACT
Among the reliefs plaintiff seeks from the court is damages for breach of contract. Issue 9 slates whether defendant breached the terms of the employment contract that would entitle plaintiff to the many reliefs he prays for in court. The contract signed between the parties provides for one month one notice by either party. It is part of the claim of plaintiff that without prior notice of termination of his appointment, Ex ‘U’ was delivered to him on 10th of May, 2015. That one month salary in lieu of notice has also not been paid him together with other allowances and benefits that I would be dealing with one after the other. As a prelude to tackling the issue of non-payment of the one month salary in lieu of notice I find it necessary to deal with the termination first. Plaintiff has not made much issue with the termination of his appointment itself but rather his entitlement due him. This I think is so because the right to terminate a contract of employment flows from the general principle of law that contracts of employment are not contracts of servitude from which parties cannot pull out. The position of the law on termination of contract of employment has been this: that the employer is not under duty or any obligation imposed by law to proffer reasons for termination of the contract of an employee. And that it is enough if the contract is terminated in accordance with the procedural requirements and terms of the contract.
See the case of WILLIAM AMPIAH v COCOA MARKETING COMPANY (Unreported) H1/43/12 dated 21st March, 2013 COA. A termination was said to be wrongful where one of the parties terminates the contract of employment contrary to the terms stated therein.
Unlike summary dismissal where an employer was duty bound to proffer reasons for the dismissal, on the contrary in termination the employer was not bound to give reasons as long as the correct procedure for the termination had been followed. And this is the point that the Supreme Court made in the case of ISAAC KOBI & 24 ORS v
GHANA MANGANESE COMPANY LTD HI/70/2004 held that:
“Clearly their severance of employment was not a summary dismissal but a termination of appointment. Without the need to quote any legal authorities, it is common knowledge that clear distinctions exist between the two. I will only attempt to note the commonest. While in summary dismissals the employer may state reasons for their action, the employer is not equally bound to give any reason for termination of appointment. Besides this, an employee whose service was to be terminated was entitled to notice or payment in lieu thereof, and also payment of all his entitlements.”
It is my duty therefore, to find out if the claim of plaintiff that he was not paid the one month salary in lieu of notice is true. If it was not paid him then the termination becomes unfair and unlawful.
PAYMENT IN LIEU OF NOTICE
Plaintiff has alleged in paragraph 11 of his amended statement of claim and in paragraphs 22 and 23 of his witness statement states that his appointment was terminated without notice and without payment of one month salary in lieu of notice. He indeed puts the figure of €7,116.00 as his monthly salary due him. Djibril Kanazoe in his evidence at paragraph 23 deny this claim of plaintiff insisting that defendant paid plaintiff one month salary in lieu of notice. Defendant backs his evidence of payment of the one month salary in lieu of notice with Ex ‘5’. There is also Ex ‘W’ produced by plaintiff that shows an amount of €111,960 that was paid into the account of plaintiff on the 29/4/2015. This payment was made for monies due plaintiff almost weeks before the termination of the appointment of plaintiff on the 10th of May, 2015. This amount paid on 29th of April, 2015 happened to be the last payment made by defendant to plaintiff. As to whether defendant paid plaintiff one month salary in lieu of notice as part of the payment made before the termination of his appointment, this is what was elicited when Djibril Kanazoe was cross examined on the 27th of April, 2017:
Q: Before terminating the appointment of plaintiff did you give him any written notice
A: Yes My Lord
Q: Where is the evidence in support?
A: My lord, we have sent the termination letter to the plaintiff and we have paid a one month notice in lieu
Q: In your Exhibit 5 can you pin point the payment you made in lieu of notice
A: My Lord, in the Exhibit 5 in the year 2015, the last column of the table shows notice in lieu [sic], 7,116 Euros
Q: You only put this figure on paper but never paid him
A: We have paid, My Lord
Q: Where is the evidence as you had earlier testified that Exhibit 5 represents amount owed
A: My Lord, Ex 5 shows all the month worked by the plaintiff and the total amount owe to him including payment in lieu of notice that all come to 38,221.91 Euros and it is showing also the payment paid of a total of 3,736 Euros, the balance 485.92 to the plaintiff and in our proof of payment you can see that all the Bank swift copies show that we have paid 376.000 Euros. Therefore, there is no more payment due according to the contract
Q: Will you agree with me that Ex ‘5’ does not represent evidence of payment to the plaintiff
A: Yes Ex ‘5’ is not evidence of payment to the plaintiff”
Indeed as the witness concedes, Ex ‘5’ is a sheet that tabulates what in defendant’s reckoning is supposed to be all payments made to plaintiff and that clearly cannot be the evidence of payment. DW1, Joseph Tosure, the accountant for defendant’s company also claimed that one month payment in lieu of notice was paid plaintiff. However, under cross examination this claim of payment in lieu of notice proved unconvincing to the court in the following exchanges:
“Q: And you went on to say that the defendant paid the plaintiff’s salary in lieu of notice, where is the evidence for that payment
A: My Lord, the payment advise had been submitted to the court, but in the tabulation you could see in 2015 the last bit of it indicates notice in lieu, 7, 116 Euros
Q: So that is all the evidence you have about payment in lieu of notice
A: Yes My Lord including the payment slip tendered
Q: Can you show to the court the specific payment slips relating to the payment in lieu of notice
A: Yes My Lord, it is included in the amount paid in April, 2015. The total sum 111,975 Euros. This was also the last payment made to Mr. Luigi Martinis
Q: And that payment of 111,975 Euros represent the accumulated payments, is that not so?
A: Yes My Lord, including the notice in lieu”
As the Accountant agrees that the 29th April, 2015 payment was the last payment ever made to plaintiff. That payment represented accumulated monies due and owed to the plaintiff at the time. Plaintiff was still in the employment of defendant and it is inconceivable that whiles at that time that plaintiff’s employment had not been terminated, defendant would proceed to pay plaintiff in lieu of any anticipated termination of plaintiff’s employment in future together with salaries and allowances that had been due and outstanding for so long. Again it is clear from the evidence and as conceded that Ex ‘5’ is not evidence of payment made to plaintiff in lieu of notice of one month of termination of his employment. I am satisfied and I find as a fact that the payments made to plaintiff on the 29th of April, 2015 did not and could not have included the one month salary in lieu of notice of termination of his employment on the 10th of May, 2015. And an amount of €7,116 is due and owed the plaintiff as one month salary in lieu of notice of termination as required by law
SALARY FROM 29TH APRIL – 10TH MAY, 2015
It was not only salary in lieu of notice that plaintiff demanded in his pleadings and paragraph 34 of his evidence in chief. He also sought what he claims to be salaries due him from 29th of April, 2015 to 10th of May, 2015 that he worked. From the logic and finding of fact from the preceding issue that the last payment made to plaintiff was on 29th April, 2015 and as it is trite that an employer would not pay an employee for days that an employee is yet to work unless there is a specific agreement that an employee was being paid salary advance, I am safe to assume and find as a fact that for eleven days plaintiff worked after the receipt of his last salary, he was due salary for those days worked. As his daily wages at the time of termination worked up to €29.69 an hour. This figure multiplied by a conservative eight hours a day multiplied by eleven should give a figure of €2,612.72 due plaintiff for those period he worked but was not paid subject to the necessary withholding of income tax for payment. This figure would be less than the amount of €5,307.30 that plaintiff is claiming under this heading.
UNCLAIMED ALLOWANCES FROM APRIL, 2012 TO AUGUST, 2012
Again plaintiff claim that he was due allowances from April, 2012 to August, 2012 that defendant had not paid him and prays for an order compelling the payment of such monies totaling €7,500.00. Plaintiff backs his claim Ex ‘M’ which is a document he has prepared tabulating his salary for each month and what he thinks has been paid him and those not paid. Defendant countered Ex ‘M’ with Ex 8 series showing the various payments in terms of allowances made to the plaintiff. It was obvious from the evidence that there were two categories of allowances. The first was a flat overtime allowance of €1,500 per month which was paid in addition to salary. Then there was site allowance which was paid in cash to plaintiff. A look at the contract document of clauses 4 and 5 will show these two allowances payable. The site allowance per the contract was CFA 1,000.00 payable in advance.
As this money was not paid into the bank account of plaintiff how did he prove that some of the allowances were still due and owed him beyond Ex ‘M’. Little evidence was adduced on this claim. On the other hand defendant’s evidence of Ex ‘8’ series appears to be a good answer to the allegation of an allowance of €7,500.00 due and owing to the plaintiff. DW1 under cross examination further threw light on this in the following:
Q: Look at Ex ‘X’, the Plaintiff is saying that between April, 2012 and August, 2012, the defendant did not pay him an amount of €7,500.00 the amount in column two
A: No My Lord
Q: Do you have reason of saying no?
A: All site allowance was paid each month to the Plaintiff at the site
Q: And the monthly site allowance was €1,500.00, is that correct
A: My Lord, I do not remember the amount unless I check. My Lord, the site allowance was One Million
Q: So you are were paying the plaintiff CFA in Ghana, is that not so
A: No My Lord. He was given the equivalent of that amount in cedis”
I did not find any concrete evidence adduced by plaintiff to back his claim that an amount of €7,500 was owed and due him for allowances for April – August, 2012.
This claim of plaintiff is dismissed as unproved.
10% CLAIM OF THE PROFIT FROM THE CONTRACT
Plaintiff in his amended statement of claim notes that he accepted an offer made by defendant to give him 10% of the profit from the Eastern corridor road project after its completion. An in his witness statement he states at paragraph 12 as follows:
“Being very satisfied with the professionalism shown by me in discharging my duties, the defendant acting through its Managing Director offered and I accepted that I would be given 10% share of the profits made from then project”.
Per Ex ‘A’ the total contract sum for the Eastern corridor road project was €25,909,484.67. The 10% of the total profit made as at August, 2014 as estimated by plaintiff was Two Million Four Hundred Thousand Euros and in plaintiff’s reckoning he was entitled to an amount of €240,000.00 from defendant. Defendant on the other hand in his amended witness statement at paragraphs 28, 29 and 30 categorically deny any offer of 10% profit to plaintiff from the contract. Exhibits K, and L series are material in resolving this issue as to whether plaintiff is entitled to an amount of €240.000.00. Exhibit K is an email from plaintiff to Djibril Kanazoe dated June 4, 2014 which states as follows:
“I understand your problems perfectly but the reason of my correspondence, memos, notes emails is to try my best for appearance of organization [sic], I believe after two years I could not succeed in my intention. I think very good organization must have one vision, which is what I wanted to establish. Djibril, what I learnt in life in my infancy to date: I believe the only two institutions/organisations which are strong would never collapse are the military and Religion just because hierarchy chain of command works [sic]”
I have quoted virtually the whole of Ex ‘K’ and it clearly shows that there is nothing either directly or indirectly in Ex ‘K’ about the share of profit of the Eastern corridor road project on 10% profit to plaintiff.
It seems it is Ex ‘L1’ where in an email from Djibril Kanazoe he notes in paragraph 6 of Ex ‘L1’ that:
“For the 2.4 million you are talking about its better we talk when we meet. I want to tell you again that I am very sorry that our relation is finishing in that manner you have helped my company a lot and it was not my wish that you live the site unhappy I have try my best to supplier [sic] the site correctly in order to make things easy for you but even with my best its[sic]was not enough”
A look at Ex ‘E’ which I have found to be the contract that engaged plaintiff on the Eastern corridor road project, there is absolutely nothing about 10% profit to plaintiff and therefore the burden was on the plaintiff to produce the corroborative evidence in support of this claim. When plaintiff came under cross examination on the 13th of February, 2017 regarding his claim of entitlement to 10% share of the profit this is what transpired:
“Q: Can you tell the court when ... Djibril promised you 10% of the profit.
A: My Lord yes. Djibril promised me the amount after signing the contract, saying that if I did very good work he will give me the money in question
Q: Which contract are you talking about here?
A: My Lord I am talking about the contract in question. The one and same contract that Djibril offered me and none other.
Q: I am suggesting to you that Djibril never promised you 10% of the profits at the time you alleged he executed your employment contract.
A: I insist that Djibril himself promised me 10% of the profit of the project if everything went well.
Q: I am suggesting to you that there is nothing in Ex ‘K’ which confirms the 10% as you are alleging
A: My Lord yes. There is nothing in Ex ‘K’ indicating my claim but there is evidence in Ex L1’ supporting my claim.
Q: I am suggesting to you that there is nothing in Ex ‘L1’ that supports your claim that Djibril promised you 10% profit’
A: My Lord it is not correct. The part of Ex ‘L1’ says that ‘for the 2.4 million you are talking about its better we talk when we meet’.
In his written address, learned counsel for plaintiff, Dr. Kwaku Addeah, claim that Exhibit ‘L1’ is one of the oral agreements made between the parties. To make a finding of fact as to whether plaintiff was entitled to 10% of the profit of defendant from the Eastern corridor road project would necessitate resolution of two legal matters. The first is in respect of the terms agreed to in a contract and as a corollary whether parties who have embodied their agreement in a written form could be deemed to have varied or added to the written contract by an oral agreement and if possible under what circumstances can a written agreement be changed by oral agreement.
The first of the legal issues arises here as plaintiff claim that defendant made an offer to him of 10% of the profit and he accepted it as quoted in paragraph 12 of the witness statement of plaintiff supra. If there is an offer in law it must be definite and final. There must be a clear indication that the offer was accepted and acted upon by the offeree. For in the case of NTHC v YAA ANTWI  SCGLR 117 at 125 Date- Bah JSC notes that an offer indicates by words or conduct by the offeror that he is prepared to be bound by the contract in the terms expressed in the offer if only the offeree communicates his acceptance to those terms. From the Exhibits ‘K’, ‘L1’, ‘E’ and ‘AA’ there seems to be no clear evidence that defendant made any such offer of profit sharing with plaintiff. If even there was an offer, the question is how was it accepted by the plaintiff? And the fact that in Ex ‘L1’ defendant’s representative, Djibril Kanazoe only states that there was the need to talk about the profit sharing does not lead to the irresistible conclusion that there had been an agreement. What was the outcome of the talk between the parties, if there was one at all is unknown to the court. And the fact that defendant kept silent about the claim of plaintiff for 10% does not mean that there was any such agreement.
Acceptance must be a final and unqualified expression of assent to the terms provided in a contract. And such unqualified acceptance must as a matter law be communicated to the offeror. See the cases of FOFIE v ZANYO  2 GLR 475; ENTORES LTD v MILES FAR EAST CORPORATION  2 Q.B 327. The only exception to this rule is unilateral contracts where a person may accept an offer by performance. It is trite that silence cannot constitute acceptance. For acceptance must be deliberate and willed act and silence alone may have occurred for variant reasons. Such as in the case of FELTHOUSE v BINDLEY  11CB (NS); 142 ER 1037 where the plaintiff wrote to his nephew, John on February 2, 1861 offering to buy his horse for 30 pounds 15s and added “if I hear no more about him, I consider the horse mine at the price” the nephew did not reply. The horse was auctioned and the plaintiff sued. It was held that the offer had not been accepted as the silence was not enough to constitute acceptance. With a claim for entitlement to 10% and defendant replying that there was the need to talk about it does not bring a contract into being, I so find and hold. If there is nothing in the written contract that vindicates the position of plaintiff, can one then have recourse to an alleged oral contract as plaintiff is claiming? Where there is an allegation of an oral agreement beyond a written contract it situates the issue within the parol evidence rule. The parol evidence rule is to the effect that once parties to an agreement have reduced their contract into a written form, the parties will be debarred from adducing extrinsic evidence to add to, vary or contradict what they have written.
The document of the agreement becomes the sole repository of the terms of the contract. This rule is to promote certainty to ensure that a party does not allege with impunity that there were other terms that were not included. See JACOBS v BATAVIA & GENERAL PLANTATIONS TRUST LTD  I CH 287; WILSON v BROBBEY  1 GLR 250. Going through all the exhibits including Ex ‘L1’ there is nothing there to show that there was any such agreement of profit sharing. There are exceptions to the parol evidence rule and they are one where the written document was not intended to contain the whole of the agreement between the parties as seen in the case of ALLEN v PINK  4 M&W 140; two circumstance where oral evidence may be adduced to prove the existence of a custom as it was in the case of GILLESPIE BROTHERS v CHENEY EGGAR & CO  2 QBD 59; three where there is evidence to show that a contract is invalid due to misrepresentation, mistake, fraud or non est factum as it was in the case of CAMPBELL DISCOUNT v GALL  QBD 431and four where a party is calling for rectification of the written document as in the case of MANN v NUNN  30 LT 526.
Does the claim of 10% profit by an oral agreement to the written contract fall in any of the exceptions enumerated? Plaintiff has not called for rectification, nor has he claimed that there was a mistake, misrepresentation, fraud or any vitiating factor in the contract, nor has plaintiff adduced any evidence that there is a custom within the construction industry where project managers are awarded 10% of the profit as a reward or ex gratia. Plaintiff has proved none of these I am safe to hold on this issue that plaintiff’s claim to 10% of the profit remained unproved. I find that defendant through Djibril Kanazoe did not promise any 10% profit of the eastern corridor project to the plaintiff and this claim of plaintiff is dismissed in its entirety.
The claim of defendant’s nonpayment of taxes is covered by the issue 8 of the application for directions. Plaintiff’s claim tax clearance certificate from defendant or otherwise an order for payment by defendant of an amount of €117,040 being 38% of his cumulative entitlements of €308.000.00. Plaintiff has pleaded that his income tax has not been paid making it impossible for him to procure tax clearance certificate which is needed to enable him have access to the €111,974 paid him by defendant failing which he would be made to forfeit 38% to the Italian authorities as tax. Defendant answer that it had paid all the relevant taxes that plaintiff is supposed to pay in Burkina Faso. He backs that with Exhibit 7 series that shows payments made to plaintiff and taxes withheld and paid to the tax collector in Ouagadougou. He further ask plaintiff to proceed to Ouagadougou to chase his tax clearance certificate if he needed it. As to which country were taxes to be paid on behalf of plaintiff became the subject of intense cross examination of Djibril Kanazoe in the following discourse:
Q: The plaintiff was expected to pay income tax, was that not so?
A: My Lord we have paid all the plaintiff’s employment taxes and we have exhibited all the payment papers.
Q: You will agree with me that the plaintiff is subject to payment of income tax but it was your duty to pay on his behalf.
A: No, My Lord, what I know is that when we hire an expatriate staff we pay some taxes in Burkina Faso for that contract and we have done that.
Q: In what country did the plaintiff work?
A: My Lord in Ghana.
Q: In which country did the plaintiff generate income?
A: My lord the plaintiff worked in Ghana
Q: Since the plaintiff worked in Ghana where was he expected to pay tax?
A: where he was employed.
Q: What you have just stated, is it contained in any of the employment contract you have with the plaintiff.
A: No My Lord, but anybody you employ in Burkina Faso will sign the contract in Burkina Faso and pay him in Burkina Faso you have to pay the tax in Burkina Faso”
It is not disputed that plaintiff’s contract was signed in Burkina Faso but the work was performed in Ghana. By defendant’s insistence that he was to pay the income tax of plaintiff in Burkina Faso appears that he is making a case that it is the place where the contract was signed that a person must pay his tax. To know where taxes of plaintiff is supposed to be paid recourse would be had to one the governing law of the contract and more importantly two the relevant tax laws of Ghana. Ex ‘C’ makes the law of the contract to be the law of the State of the contracting Authority, that is Ghana and further notes that the law of Ghana shall apply to all terms and conditions of the Eastern corridor road project contract flowing from which the contract between the parties was derived. The applicable law of Ghana is the Internal Revenue Act, Act 592 as amended by Ghana Income Tax Act, Act 896. The law makes all income arising within the territorial area of Ghana subject to the payment of income tax regardless of the nationality or residence of the recipient of the income. So the tax jurisdiction of Ghana is the source basis as opposed to the global basis. That is an income is taxable as long as the income was generated or made in Ghana. For section 6 of Act 592 as amended states as follows:
“1) Subject to this Act, the assessable income of a person for a year of assessment from any business, employment, or investment is,
(a) in the case of a resident person, the full amount of the person's income from the business, employment, or investment accruing in, derived from, brought into, or received in Ghana during any basis period of the person ending within the year of assessment;
(b) in the case of a non-resident person, the full amount of the person's income from the business, employment, or investment accruing in or derived from Ghana during any basis period of the person ending within the year of assessment”
For the purposes of the law even if an expatriate hold an employment in Ghana for a period of more than six months or 183 days, he would be deemed to be a resident person for the purposes of taxation, even where the income is paid into an account in the expatriate country of origin. See the cases of THE REPUBLIC v COMMISIONER OF INCOME TAX; EX PARTE MAATSCHAPPIJ DE FIJNHOUTHAN DEL N.V (FYNHOUT)  GLR 213; COMMISSIONER OF INCOME TAX v KIRK  E.A. L. R 127. All the income of plaintiff was generated in Ghana as Djibril Kanazoe concedes in the cross examination supra and Ghana then becomes the source of all his earnings and such is subject to tax and payment in Ghana but not Burkina Faso. Source of income has been defined in the case of COMMISSIONER OF INLAND REVENUE v LIVER BROTHERS &UNILEVER  S.A.T.C 441 @ 499 as:
“quarter whence they came, but the originating cause is the work which the taxpayer does to earn them, the quid pro quo which he gives in return”.
I find therefore that defendant was supposed to have withheld income tax for payment on behalf of plaintiff for 2012, 2013, 2014 and 2015 to Ghana Revenue Authority. By claiming that he has paid the taxes in Burkina Faso is completely wrong and the non- payment of the taxes on behalf of plaintiff may be an offence under Ghanaian law. Sections 148 to 154 of Act 592 creates a number of tax offences including failure to pay tax. Plaintiff ask for an order compelling defendant to pay the taxes and produce to him his tax clearance certificate. Under section 118 of Act 592, tax clearance certificate is one sure means to advert tax evasion as it is issued by the Commissioner General to a tax payer that no tax is due for the period under certification or that satisfactory arrangements had been made to pay the necessary taxes. It is also a mechanism to ensure that an alien that has earned income in Ghana does not leave with his income without payment of the taxes. Defendant would be ordered to pay all the income tax to Ghana Revenue Authority for plaintiff to apply for his clearance certificate within one month from today. The Registrar of the court is to take note and notify the Commissioner to assess the necessary taxes that defendant must pay on behalf of plaintiff. Plaintiff accordingly succeeds in relief g in part in so far as defendant is not ordered to pay monies to plaintiff to pay to the Italian authorities. Rather the taxes should be paid in Ghana for plaintiff to apply for the tax clearance certificate.
ALLOWANCES FOR WORK DONE ON SUNDAYS AND PUBLIC HOLIDAYS
Plaintiff contends that the payment made to him on the 29th of April, 2015 of an amount of €111,974 did not include an amount of €72,278.56 due him as allowances for work done on Sundays and public holidays for 2012-2014. Plaintiff pleaded that he worked for 136 Sundays and 30 public holidays making a total of 166 days, and the amount of €72,278.56 due him was calculated based on an hourly rate of €25.48 due him for 2012 and 2013 and claim that such overtime attracts double pay and therefore €25.48 x 2 would make the hourly rate for such overtime €50.96. This amount multiplied by 8 hours a day and multiplied by 97 days would provide a figure of €39,544.96. Plaintiff proceeds further by claim that between 2014 and 2015 his hourly wages increased to €29.65 and as he noted that he was entitled to double pay for such days would make his hourly rate €59.30 which is multiplied by two multiplied by 69 days produce a figure of €32,733.60. This would produce a total of €72.278.58 for the 166 Sundays and public holidays. Defendant ardently deny owing the plaintiff any monies for work done on Sundays and public holidays. It is defendant’s opinion that per clause 5 of the contract, Ex ‘E’, plaintiff was required to work a minimum of six days per week of eight hours per day making 48 hours for a week. And if plaintiff was to work beyond these hours he was entitled to a flat rate of €1.500.00 per month, to defendant such flat rate of overtime was calculated and paid to plaintiff. When plaintiff came under cross examination regarding the overtime payment covering public holidays and Sundays the following is what transpired:
Q: In the year 2015 before your employment was terminated, your salary an insurance for a month was €7,116, right
A: Yes My Lord
Q: And then your overtime allowance was €1,500.00
A: My Lord that is not right. The €1,500. Was for overtime done over a week not a month. So the €1.500 covered overtime done for Monday to Saturday, excluding Sundays and holidays
Q: I am suggesting to you that €1,500.00 was for overtime done in a month, Saturdays, Sundays, holidays inclusive
A: My Lord it is not true
Q: I am suggesting to you that the €307,411 paid to you represent all salaries, insurance, overtime allowances for the period that you worked on the project, including the pro-rated amount for the ten days worked in May, insurance for that ten days as well and allowance for that ten days as well ...
A: My Lord that is not right. My salary was made up of €6.000 plus €1500 including overtime hours of Mondays to Saturdays...
Q: I am suggesting to you that a flat overtime fee of €1,500.00 a month is inclusive of a public holiday or a Sunday
A: No My Lord it is not correct.
As the disagreement of whether Sundays and public holidays worked was included in the flat overtime payment of €1.500, it is necessary that I quote clause 5 of Ex ‘5’ that deals with overtime allowance. It states as follows:
“the employee is required to work a minimum (over a 6 day week) of 48 hours. As a senior staff member, you will be required to work such additional hours as may from time to time be reasonable and necessary for the efficient performance of your duties. For the overtime, the company shall pay to the employee a monthly lump sum of €1,500.00”.
It is this clause that counsel for plaintiff submits that the flat payment covers extra work done within the six days (that is Monday to Saturday) and does not include work done on Sundays and public holidays. From the clause I ask what were the ‘additional hours’ that plaintiff as a senior staff was required to work from time to time? I am not unaware that in other jurisdictions and in some establishments in Ghana when a worker works for Sundays and public holidays, the worker is entitled to double payment. And as Dr Addeah correctly points out that under section 72 of the Labour Act, a worker is supposed to be remunerated for work done on public holidays.
However, as to how much payment is due an employee for working on public holidays and Sundays is always a matter of negotiation between the parties but not a general rule that in every contract a worker having worked on Sunday or public holiday is entitled to double pay. Payment for hours done on Sundays and public holidays as not specified, it is my view, that Sundays and public holidays would not come within the contemplation of additional hours done for six days period per week for which a flat rate of €1.500 covers it. The clause is intended to cover, only extra hours done beyond the 48 hour period per week from Monday to Saturday and does not include Sundays and public holidays, I so find and hold. With the parties not having agreed on the rate of payment for Sundays and public holidays, as a contract is one of agreement between the parties, I think it fair to fix the remuneration of the plaintiff for those period worked to be the normal rate applicable for the working hours of Monday to Saturday. And as defendant did not contest the number of Sundays and public holidays worked over the period the figure that I would award to plaintiff would not be €72,278.58 but rather half of it being €36,089.29. This is because in the absence of clear agreement as to the rate to be applied, plaintiff cannot unilaterally apply a double figure.
Plaintiff claim per his amended statement of claim that he was entitled to an amount of €18,532.50 from 2012-2015 as unpaid air fares to and from Italy. He supports this claim with Ex ‘E’, the contract document and Exhibit ‘X2’. Ex ‘X2’ is a calculation done by plaintiff of the number of holidays taken and notes that there were seven trips still outstanding which when converted from CFA to Euros would give the figure of €18,532.50. The relevant provision of clause 6 of Ex ‘E’ is worth quoting:
“The employee is entitled to a global net (excluding the travel days) annual leave of 45 days fractioned into four periods. The relevant premium AF class air-tickets will be paid by the company. The departure dates have to be agreed by the Project Manager according to the requirements”.
It is the commitment of defendant to pay for AF class air tickets that plaintiff demands that for the leave days he did not undertake because he was working and therefore no air ticket bought must be paid to him in cash. I think learned counsel for defendant in cross examination of plaintiff exposed the untenable nature of this claim by plaintiff in the following cross examination:
Q: And by clause 6 of their Exhibit ‘E’ or ‘3’ you were entitled to an annual leave of 45 calendar days per annum, right?
A: Yes My Lord it is true
Q: And could take these holidays four different times in a year provided they sum up to 45 days in a year, right?
A: Yes My Lord
Q: You will agree with me that if on one holiday trip you spend the entire 45 days, you would have utilized all your leave days and would not be entitled to any other holidays
A: My Lord that is false. I have never taken 45 days in the whole year just one vacation. I spend 20 days apart from another 20 days when I was sick.
Q: I am suggesting to you that if you spend 45 days in a trip you will not be entitled to the three other tickets for the three trips that you did not embark on.
A: My Lord this is not true. I have already said that I never had vacation covering a period of 45 days, Djibril has all the tickets concerning all the trips that I have made, so you can verify this from Djibril”.
From my understanding of clause 6 of Ex ‘E’, defendant was only under obligation to provide air ticket of a maximum of four when plaintiff was due to travel for holidays.
Where plaintiff did not travel either out of his own volition or because he was working would not make those trips not taken convertible in cash for collection. And I think Joseph Tosure when he came under cross examination rightly explained that plaintiff was not entitled to cash in lieu of trips not taken in a year in the following:
“Q: So now going by Ex ‘X’, plaintiff is saying that the defendant owed him 18,532.50 Euros in respect of unpaid airfare to and from Italy
A: No, My Lord all airfare tickets was given to the Plaintiff by us the company so each time the plaintiff needed to go for a holiday; the company was buying the ticket and give to him, he was entitled to four tickets each year. So it does not mean that if he did not go for the holiday we have to pay him back the ticket amount
Q: Your local employees, anytime they did not go on leave because you requested them to work you paid them double salary, is that correct
A: No My Lord”.
Exhibit ‘6’ series is evidence of tickets purchased for plaintiff anytime he was travelling to Europe. I find and hold that from the evidence on record and per the agreement between the parties the plaintiff was entitled to four tickets from defendant per each year but the failure of plaintiff to undertake a holiday would not make the ticket to be purchased by defendant convertible in cash. The claim of plaintiff for payment of an amount of €18,532.50 as cash in lieu of ticket not purchased for trips not embarked upon would be accordingly dismissed.
COUNTER CLAIM OF DEFENDANT
Having virtually exhausted dealing with the claim of plaintiff, I am now duty bound to consider the counter claim of defendant. And as part of the issues for determination of the counter claim by the court, not less than two issues had been set down and adopted the court. They are Whether or not after reconciliation of accounts between the plaintiff and defendant, the plaintiff is indebted to defendant in the sum of Three Thousand Seven Hundred and Sixty Euros and Thirty-Nine Cents (€3,716.39) which is yet to be paid and And Whether or not defendant is entitled to its counterclaim.
In respect of the counter claim it is to be viewed with the same scale of measurement as if defendant was the plaintiff. As far back as the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that:
“a counter claim is to be viewed and to be treated for all purposes for which justice requires it to be so treated as an independent action”.
Dotse JSC came to the same conclusion on counter claim actions in the case of JASS CO. LTD v APPAU  SCGLR 269 at 271 that:
‘whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant’
See also the following cases: NII ODOI KWAO ASUMANG & 2 ORS. v. WILLIAM SOWAH
CHARWAY & 14 ORS.  75 GMJ 108, CA at p. 135; J.K.KPOGO v. F.K. FIADZORGBE, Civil Appeal No. J4/9/2012, dated 6thMay, 2015, FOSUHENE v. OWUSU  32 GMJ 163.
Djibril Kanazoe notes in his evidence in chief which was consistent with his pleadings that after payment of an amount of €111,975 to plaintiff in full satisfaction of the monies due him, he further demanded the payment of an amount of €21,423.30. This prompted the defendant to sit to reconcile accounts with plaintiff. That after the reconciliation it became bare that it was rather the plaintiff who had been overpaid by an amount of €3,716.39.
That plaintiff subsequently admitted unequivocally the overpayment made to him and an undertaking that the overpayment would be struck against future payments to plaintiff. The document that defendant refers to is plaintiff’s own Ex ‘X1’. It states, inter alia, as follows:
“NB: Below is the amount which needed to be deducted from the final calculation. The allowances paid to me during these holidays must be paid back to the company [emphasis mine]. 182 holidays spent ÷26 working days per month = 7 months. Therefore 7 months x €1,500 received =10.500 Euros which must be refunded to the company (Kanazoe). But unpaid allowances from April, 2012 to August, 2012 = €1,500 x 5 months = €7,500. Therefore €10,500 received - €7,500 unpaid = €3.000 possible refund”.
It is this note written by Luigi Martinis and signed by both plaintiff and Djibril that defendant relies on that it is due an amount of €3.000.00. However, plaintiff when offered the opportunity explained that the figure is in respect of only allowances paid him as site allowance whilst on vacation in Italy. That defendant after termination of his employment had written to stakeholders of the project that he had been overpaid by an amount of €9,263.31. And this called for reconciliation. It was after that they reached an agreement over payment of allowances in the sum of €3.000. And to plaintiff that is not an overpayment when defendant still owes him.
It appears that plaintiff concedes that some monies were due defendant because he was overpaid some monies. Counsel in cross examining Joseph Tosure seems to have admitted this fact in the following:
“Q: I put it to you that document [X1] simply shows that whilst on vacation and whilst not on site, the plaintiff was paid some allowances, and being an honest person, he voluntarily said that money should be refunded to the company and deducted from his huge outstanding non-payment balance. And Djibril agreed and signed and even wrote calculation ok
A: That is not correct. The last payment was made to Mr. Luigi in April and this calculation was made on 26th May, so in acknowledging receipt of payment made to him, he then realize that the total amount here as in his whole working period by the actual work that he had done. So upon receipt of the tabulation which is Ex ‘5’ that he was supposed to refund about €10.000 he then came up with his calculation, that is why we see this as in payment outstanding as that time...”
A look at Ex ‘5’ produced by defendant would show that the two columns provided, one dealt with allowances and the other with salaries. A look at Ex ‘X1’ as quoted demonstrates that the references plaintiff was making was in relation to allowances paid. And that is where he concludes that he has been overpaid. I therefore find that one ‘X1’ refers to allowances. And two that as far as allowances were concerned, plaintiff was overpaid by defendant. There is no evidence that this overpayment of €3.000 has been paid back or refunded by plaintiff. As the understanding was that it was to be struck against future payments to be made to plaintiff by defendant. I further hold accordingly that defendant succeeds in part in his counterclaim for the refund of allowances overpaid plaintiff to the tune of €3000.00 but not €3,716.31 as defendant seeks from plaintiff together with its interest.
As defendant finds much comfort in Ex X1, it is also instructive to note that in that same Ex ‘X1’ plaintiff stated besides the allowances he concedes must be refunded that he also had four more leave days that had not been taken and for which defendant through Djibril agreed to refund same to him. The four days leave period would amount to €815.00 and I hold that this money is also due plaintiff.
In conclusion the court take pains to summarize its decision as follows:
Plaintiff succeeds in part in relief a. for the declaration that defendant owes him monies. However, it does not total the grand figure of €468,589.72. The amount found by the court as payment due plaintiff from defendant would be:
a. Unpaid salary of eleven days from 29th April, 2015 to 10th May, 2015 which is €29.69 x 8 x 11 days which gives an approximate figure of €2,612.72.
b. One month salary in lieu of notice in the figure of €7,116.
c. Unpaid allowances for work done on Sundays and public holidays for 2012- 2015 which is found to be a figure of €36,139.28 instead of the figure of €72,278.50 that plaintiff sought.
d. Unspent four leave days being a figure of €815.36.
Interest on these amounts at the prevailing commercial bank rate is also granted in favour of plaintiff.
Plaintiff however, fails in his claim for unpaid allowances for April 2012 to August 2012 and that claim is dismissed.
Plaintiff’s claim for unpaid air fare to and from Italy from 2012-2015 is dismissed in its entirety.
Plaintiff’s claim for 10% of the profit of the contract is dismissed in its entirety.
Plaintiff’s claim for an amount of €117,040 to be paid to him for the Italian tax authorities fails. Instead, defendant is ordered to fulfil all tax obligations regarding plaintiff in Ghana and not Burkina Faso within one month to enable plaintiff procure the necessary tax clearance certificate. Defendant succeeds in part in its counterclaim against plaintiff in the sum of €3.000.00 together with its interest. This amount may be off-set against the monies due plaintiff and for which the court has found defendant liable to pay. As Plaintiff’s appointment was terminated without notice and without the payment of monies in lieu of notice, I think plaintiff may be entitled to general damages which is nominal in its nature. I award an amount of GH¢8,000.00 as general damages in favour of Plaintiff.
In all I find it just and fair to award cost considering the relative success of Plaintiff over Defendant in this case an amount of GH¢15,000.00. I place on record my profound gratitude for the industry exhibited by both legal teams in this case. Great commitment was exhibited during trial. And enormous scholarship went into the filing of addresses. I doff off my hat to both teams for the gallant defence of their respective parties.