IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
EBENEZER GOLBERT ASARE - (Plaintiff)
MR. WANG & 3 ORS. - (Defendant)
DATE: 19TH OCTOBER, 2016
SUIT NO: OCC/48/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
IBRAHIM ADAMS FOR DEFENDANTS
WILLIAM KUSI FOR PLAINTIFF
The Plaintiff instituted the instant action against the 1st to 3rd Defendants herein on 27/10/14 and on 03/09/15, he applied to join 365 Daily Business Limited as the 4th Defendant. He sought four reliefs against the Defendants, namely:
The recovery of an amount of Forty Thousand Ghana Cedis ((GH¢ 40,000.00) being the amount of money the Defendants promised to pay the Plaintiff for which they have failed to pay in spite of repeated demands for same.
An order for the Defendants to pay damages for unlawful dismissal.
A further order for the Defendants to pay the Plaintiff all his outstanding salaries.
An order for the Plaintiff to pay Defendant 5% of the total gold that the Defendant conveyed from the mining site which is 730 grams.
After entry of appearance, the Defendants caused their solicitor to file a statement of defence on
11/11/14, but their defence was amended on 30/10/15 after the 4th Defendant had been joined to the suit.
THE PLAINTIFF'S CASE.
The Plaintiff described the 1st and 2nd Defendants as a married couple who manage the 4th Defendant company; and the 3rd Defendant as a translator for the 1st and 2nd Defendants. As gathered from his amended statement of claim, the Plaintiff's case is that he was employed by the owner of the 4th Defendant company, Mr. Wu, 'to drive him around' and to operate excavator machines. At a point in time, the Plaintiff alleged that Mr. Wu left the jurisdiction and in his absence, he was instructed to drive the 1st and 2nd Defendants which he did until the time of his alleged unlawful dismissal. His main grievance is that per his terms of employment with the 4th Defendant, he was to be paid a monthly salary of GH¢ 650.00 plus 5% of every gold he conveyed from the mining site. In all, the Plaintiff claimed that for the eighteen months he worked for the 4th Defendant, he conveyed 14,600 grams of gold. His other contention is that in the course of his employment, the 2nd and 3rd Defendants engaged him to assist them to acquire an excavator from proceeds of gold mined with a promise of giving him a vehicle worth GH¢ 40,000.00 but the promise was never fulfilled.
THE DEFENDANTS' CASE
The 1st, 2nd and 3rd Defendants denied the Plaintiff's claims apart from the fact that he was an employee of the 4th Defendant company just like them. They stated that they could not have promised him any gold or a vehicle worth GH¢ 40,000.00 in view of the fact that none of the Defendants is engaged in direct gold mining but provide mining support services. They also contend that the Plaintiff was engaged to drive the owner of the 4th Defendant company and not to operate any excavator. Their position is that the Plaintiff was paid all salaries and allowances due him by the 4th Defendant but the Plaintiff walked out unceremoniously after an argument over extra allowances and even threatened to teach them a lesson; after three days, the 1st , 2nd and 3rd Defendants together with other Chinese workers were attacked and robbed of about GH¢ 270,000.00.
ISSUES FOR TRIAL.
After a failed attempt at settlement, the pre-trial judge set down three issues for trial as follows:
Whether or not the Defendants promised the Plaintiff the sum of GH¢ 40,000.00?
Whether or not the Plaintiff was in the employment of the Defendants?
Whether or not the Plaintiff is entitled to his claim?
WHETHER OR NOT THE PLAINTIFF WAS IN THE EMPLOYMENT OF THE DEFENDANTS
By the nature of the pleadings, it will be expedient to first resolve the issue of whether or not the Plaintiff was in the employment of the Defendants. As rightly observed by both counsel in their respective closing submissions, both the evidential and burden of persuasion of this issue rests on the Plaintiff. The Plaintiff made factual assertions in paragraphs 2 to 5 of his amended statement of claim which are critical to the determination of this issue. The paragraphs just referred to read as follows:
2. The 1st and 2nd Defendants are married couples and the managers of Daily Business Limited who are in charge of running the affairs of the 4th Defendant company.
3. The 3rd Defendant is an employee of the 4th Defendant and translator of the 1st and 2nd Defendants.
4. The 4th Defendant herein was the employer of the Plaintiff from 2013 until 2014 when he was unlawfully dismissed.
5. The Plaintiff says that he was employed by the owner of the 4th Defendant known as Mr. Wu to be a driver of the 4th Defendant company.
When the Plaintiff mounted the witness box, he led evidence to show that he was indeed employed by the 4th Defendant. This is what he said:
... I am a driver. I know the 1st Defendant. The 1st Defendant is a manager at my work place. The 2nd Defendant is the wife of the 1st Defendant. The 3rd Defendant is a translator in the Daily Work Company Limited. I was an employee of the 4th Defendant... I was a driver to the owner of the company by name Mr. Wu. I was also an excavator operator in the business. Mr. Wu introduced me to the 1st, 2nd and 3rd Defendants when he was about to travel. Mr. Wu told me to drive them to wherever they wanted to go. I used to drive Mr. Wang to and from the site to enable him to convey gold..."
The 3rd Defendant who gave evidence for himself and on behalf of the other Defendants conceded that the Plaintiff was an employee of the 4th Defendant. The plaintiff also admitted during cross-examination that he was employed before the 1st and 2nd Defendants came to work in the 4th Defendant company. On the totality of the evidence before me, I find that whereas the Plaintiff was in the employment of the 4th Defendant, the 1st, 2nd and 3rd Defendants cannot be said to be the employers of the Plaintiff. These are officers of the 4th Defendant who played diverse roles in managing and conducting the affairs of the company.
The fact that the 1st Defendant is said to be responsible for payment of salaries of employees per se does not make him an employer in his personal capacity. By the Plaintiff's own showing, the 4th Defendant is a Limited Liability Company. It is trite law that an incorporated company has a separate legal existence. Hence, the acts or omissions of its officers in the normal course of business are to be considered as the acts of the company and not the personal acts of such officers. This principle of separate legal existence which dates back to the over a century old case of Salomon v Salomon (1897) AC 22 HL has been approved and relied on in Ghanaian cases such as Morkor v Kuma (East Coast Fisheries case) (1998-99) SCGLR 620 and Quartson v Quartson (2012) 2 SCGLR 1077.
So the argument by counsel for the Plaintiff which seem to make the 1st Defendant jointly liable for acts of the 4th Defendant will not hold; especially so when there is no cause to pierce the corporate veil. It will be also be absurd to say that whilst acting as a translator for the 1st and 2nd Defendants, the 3rd Defendant metamorphosed into an employer of the Plaintiff. From the record, Mr. Wu who employed the Plaintiff is a Chinese; so are the 1st and 2nd Defendants who run the company in his absence. From the evidence, these are persons who are not literate in the English language, thereby necessitating the engagement of the 3rd Defendant as their translator. It may well be that for communication purposes, the 3rd Defendant was usually present when employment related issues are being discussed with employees or prospective employees of the 4th Defendant; but his role in the company was limited to the translation that he did. The 2nd Defendant is also on record as a cashier of the 4th Defendant and could not have been the Plaintiff's employer by any stretch of imagination. Looking at the evidence before me in its entirety, the only plausible conclusion which can be reached is that at all times material, the Plaintiff was in the employment of the 4th Defendant company and not in the employment of all the Defendants. Put differently, the 1st, 2nd and 3rd Defendants did not employ the Plaintiff to work in the 4th Defendant company.
WHETHER OR NOT THE DEFENDANTS PROMISED THE PLAINTIFF THE SUM OF GH¢ 40,000.00
By paragraphs 18 and 19 of the Plaintiff's amended statement of claim, he averred that the 2nd and 3rd Defendants engaged him to assist them acquire an excavator machine from the proceeds of the gold mined by the 4th Defendant company and promised to give him a vehicle worth GH¢ 40,000.00. These assertions were denied by the Defendants and thereby placing the onerous burden of proof on the Plaintiff. Whilst on oath, the Plaintiff sought to proof the above assertions by oral evidence in this manner:
... The 1st and 2nd Defendants convened a meeting with me and said they wanted to use part of the proceeds to buy an excavator. They told me to assist them after which they will buy a car worth GH¢ 40,000.00 for me. I assisted them to purchase the excavator but they refused to buy the car for me."
Going by the principle of proof in civil suits as stated in the case of Majolagbe v Larbi (1959) GLR 190 at 192 which was further explained by Kpegah JA ( as he then was) in Zambrama v Segbedzie (1991) 2 GLR 221; and subsequently applied in a host of authorities such as Yaa Kwesi v Arhin Davis(2007/08) SCGLR 580;Barkers-Woode v Nana Fitz (2007-2008) SCGLR 879; Sarkodie v FKA Co. Ltd (2009) SCGLR 65 holding 1; and Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2), it is not sufficient for the Plaintiff to merely mount the witness box and recount bare facts contained in his statement of claim when those assertions are capable of positive proof. As explained by their Lordships in the above cited cases, it is the duty of the person on whom the evidential and burden of persuasion rest to produce such credible and cogent evidence from which the fact or facts he asserts can be reasonably inferred.
In the case before me, the Plaintiff's claim for GH¢ 40,000.00 was premised on the alleged purchase of an excavator. His own evidence contradicts this claim. Whereas he asserted that the Defendants promised to give him a car worth GH¢ 40,000.00, he is in court not asking for the fulfillment of that promise. Instead, he is asking to be paid an amount of GH¢ 40,000.00 from the Defendants. His evidence on the person(s) who made that promise is also not convincing as will be demonstrated shortly. Could the parties be the 2nd and 3rd Defendants as pleaded by the Plaintiff, or the 1st and 2nd Defendants as mentioned in his testimony? Clearly, these two scenario are irreconcilable and create a real doubt as to the existence of any such promise, arrangement, agreement or howsoever described.
More importantly, the following vital part of the Defendants' evidence given through the 3rd Defendant was not discredited by the Plaintiff during cross-examination and from every indication, he is deemed to have admitted it. The 3rd Defendant had this to say:
It is already on record that the 4th Defendant does not produce gold let alone to have a proceed out of the production of gold. Secondly, the expert in buying is in the hands of the owner of the company, Mr. Wu, who is in China at the moment. Again, this is a managerial affair of which myself and the Plaintiff are not involved. We are not good experts in acquiring the best excavator for the company. Again, there is no agreement whatsoever between myself and the Plaintiff and or the three of use. The 2nd Defendant is only a cashier in the 4th Defendant company employed in March, 2014. There was no promise to the effect of buying an excavator and to the extent of paying the Plaintiff the amount of GH¢ 40,000.00.If there was an agreement, then the refusal and negligence could be against us. He had not assisted us in acquiring an excavator machine of any type of which he would be entitled to benefit thereof...".
The evidential burden on this issue remains on the Plaintiff. In any case, the purchase of an excavator in a legal way is not as easy as the purchase of a unit of, let us say, sachet water, whereby the purchaser hands over the money and takes away the item purchased. With regards to a motorized equipment such as an excavator, there is the need for ownership to be transferred from the original owner/importer into the name of the purchaser, after which the equipment will have to be duly registered at the Driver, Vehicle and Licensing Division (DVLA) and legal title passed on to the purchaser. All these processes require proper documentation. In other words, they cannot be done orally as there is always a paper trail! Therefore, for the Plaintiff to convince the court that he assisted the 4th Defendant, or any of the Defendants ,as the case may be, to legally purchase an excavator, he must be able to at least give the details and or actual description of the said excavator-details which can easily be verified from public records; he must also prove the actual role he played in the acquisition of the excavator - was he the one who found a seller? Did he do any financial engineering which resulted in the alleged purchase of the said excavator? What was the cost of the excavator? Did he suffer any detriment - financial or otherwise? Last but not the least, the plaintiff must show by credible evidence that the 4th Defendant is in possession of the excavator so purchased, or the company has also transferred ownership to another person or entity. Where is the excavator allegedly purchased?
I have read the evidence adduced by the Plaintiff over and over again but could not find the slightest clue to any of the questions posed in the foregoing paragraph. That leaves me wondering as to whether any excavator was purchased at all with or without the involvement of the Plaintiff.
Again, if indeed the Plaintiff was promised a vehicle worth GHS 40,000.00, why is he not seeking an order compelling whoever gave that assurance or promise to fulfill that promise instead of demanding payment of GHS 40,000.00?
By the preponderance of the evidence before me, I do not find the plaintiff's account in respect of his role in the purchase of an 'unidentifiable' excavator and the promise made in return for his 'services' as worthy of credit and will reject the same.
In short, no agreement by the Defendants to give the Plaintiff the sum of GH¢ 40,000.00 can be inferred from the evidence before me. Since the foundation for the claim of GH¢ 40,000.00 by the Plaintiff has crumbled, I am unable to manufacture evidence in this court in support of that claim. Based on the evidence before me, I conclude that there was no promise by any of the Defendants to give the plaintiff an amount of GH¢ 40,000.00.
WHETHER THE PLAINTIFF IS ENTITLED TO HIS CLAIMS
Per the endorsement on his amended writ of summons and statement of claim, the Plaintiff sought four reliefs which I have already set out in this judgment. The first of these is the recovery of an amount of GH¢ 40,000.00 from the defendants. Having demonstrated the non-existence of any such agreement between the Plaintiff and any of the Defendants,that relief cannot be granted by this court.
The second relief is damages for unlawful dismissal and the third is payment of outstanding salaries. These will be considered together. The plaintiff denied in his evidence-in-chief that his initial salary was GH¢ 500.00 which was later increased to GH¢ 550.00. He then invited the court to order the defendants to pay his salaries without indicating any specific period.
The following portion of the plaintiff's cross-examination casts a gloomy picture on his claim for unpaid salaries:
Q. Prior to the 1st and 2ndDefendants being employed, you were being paid your salary by Mr. Wu, the owner of the Company?
A. It is true
Q. You were being paid GH¢ 500.00 a month?
A. Not correct.
Despite this denial, the Plaintiff turned round to admit that in August ,2014, he received the sum of GH¢ 650.00 and after consultations with Mr, Wu, he was given a further GH¢ 300.00 in September, 2014. When confronted with a document which he signed and received GH¢ 500.00, the plaintiff said it was "overtime" payment. He suppressed evidence on the exact monthly salary paid to him by Mr. Wu and the duration, forgetting that the onus of proof of any unpaid salaries rest on him!
The 3rd Defendant gave a much more clearer picture of the structured payments received by the plaintiff up to September, 2014 i.e. GH¢ 550.00 basic salary; GH¢ 100.00 as allowance for working on Sundays and a further GH¢ 300.00 onetime payment pending the arrival of Mr. Wu the following month for any salary increment issues to be resolved. The Plaintiff failed to demonstrate either in his pleadings or testimony in court that the company he worked for failed to pay the agreed salary to him at any given time before August, 2014. It can be reasonably inferred from the Plaintiff's own answers during cross-examination that he was paid the salary due him up to August, 2014. His contention that he received only "overtime" payments is untenable because there is credible evidence on record to show that he was paid salaries. I do not see the basis for the Plaintiff's claim for the alleged unpaid salaries. That claim has no leg to stand on looking at the evidence before me and it accordingly fails.
Since the 4th Defendant company was the Plaintiff's employer, any claim for unlawful dismissal will lie against the 4th Defendant only, but not its officers in their private capacities as the Plaintiff seeks to do. Now, there are two rival stories as to how the Plaintiff left the employment of the 4th Defendant-one is that he was subjected to inhumane treatment and sacked unjustly by the 4th Defendant, acting through the 1st Defendant; the other is that dissatisfied with whatever pay raise given him, the Plaintiff walked out unceremoniously, he was never dismissed and his position is still available if he wants it.
In deciding which of these accounts to accept, I will first assess the credibility of the parties who testified. In so doing, I have adverted my mind to the fact that none of the parties called any witness of fact. In terms of section 80 (2) of the Evidence Act, 1975 N.R.C.D. 323, I would say that the Plaintiff is not worthy of credit. Why do I say so? He was not candid to this court when he emphatically said that the Defendants failed to pay his salaries even though he was fully aware that Mr. Wu and the 1st Defendant acting for the 4th Defendant made the said payments together with "overtime" allowances to him. How credible can the Plaintiff be in this scheme of affairs- not in the least credible! I have weighed all the evidence on record and between the two accounts in respect of Plaintiff's exit from the 4th Defendant company, I accept the Defendants' version that it was the plaintiff himself who walked out after receiving the last payment of GH¢ 300.00 in September, 2014. After abandoning his job which put money in his pocket, the Plaintiff cannot turn round to claim any damages for unlawful dismissal.
Let me take a few minutes to comment on the written submissions of counsel for the plaintiff in respect of the alleged unlawful dismissal. Counsel made reference to sections 10 and 11 of the Labour Act, 2003, Act 651 which provide for the rights and duties of a worker. From the evidence before me, the Plaintiff faithfully performed his task as a driver, having been so employed by the 4th Defendant company. That notwithstanding, he kept making demands for higher remuneration until the time he decided to walk out. It is not the case that he was not paid his salaries at all, but like the proverbial Oliver Twist, he wanted more. Irrespective of the rights and duties of a worker, that person is at liberty to terminate his or her contract of employment at any time, with or without notice, depending on the contract type. In the case at hand, the plaintiff 's contract was not reduced into writing as no such written contract was brought to the notice of this court; he was paid a monthly salary so in terms of section 16(a) of Act 651, his contract is a contract from month to month which could be terminated by either party by giving the requisite notice. Here again, the plaintiff was required to give the 4th Defendant notice of the termination of his employment which he failed to do. From the evidence on record, the Plaintiff has not worked for the 4th Defendant company since September, 2014 when he unilaterally walked out. He walked out of the company because of his insatiable desire for money which his employer could not meet. After an extensive look at the provisions contained in the Labour Act, Act 651, I would say that the Plaintiff's situation will neither pass for unlawful nor constructive dismissal. He left because he was not satisfied with his conditions of service and could not restrain himself for his grievances to be resolved amicably. How does this entitle him to general damages ? Obviously, that claim will also fail.
The final claim is for 5% of the total gold that the defendant conveyed from the mining site which he alleges is 730 grams. In his testimony before this court, the Plaintiff said he was entitled to 5% of the 14,600 grams of gold mined by the 4th Defendant which translates into the 730 grams. When the 3rd Defendant took his turn to testify for the Defendants, he told the court that the 4th Defendant does not engage in direct mining and so the plaintiff could not have conveyed any quantity of gold for the 4th Defendant to entitle him to the alleged percentage.
The evidential burden then shifted back to the plaintiff to prove that the 4th defendant was engaged in direct mining and that he was to be given 5% of the gold mined. The best form of proof would have been the production of the 4th Defendant Company's Regulations from which its core business could be inferred. The plaintiff could have subpoenaed the Registrar General or his representative to tender the said Regulation for evidential purpose. He also had the option of requesting the 4th Defendant to furnish him with the said Regulations by way of a 'notice to produce' which could also be put in evidence.
In addition, the Plaintiff ought to have given credible evidence to show that indeed the 4th Defendant has been issued with any form of license under the Minerals and Mining Act 2006, Act 703 as amended by the Minerals and Mining Act 2015 which authorizes the company to engage in direct mining.
Short of these, this court is not in a position to rely on the Plaintiff's bare assertion that the 4th Defendant is into direct mining when the same has been denied. It is not the duty of this court to go on a voyage of discovery in search of cogent evidence to support a party's case. The Plaintiff has failed to satisfy the mind of this court that the 4th Defendant company at any point in time was engaged in direct mining which would have formed the basis of any agreement to give him a percentage of gold mined.
Even if the Plaintiff had been able to prove that the 4th Defendant company was engaged in direct mining rather than the provision of mining support services, how did he, as a driver, arrive at the total quantity mined over the 18 month period? How did he weigh the gold? Or, was the gold weighed in his presence? And if so, did he keep a log book or any written record of the quantities as and when the gold was extracted? If he had any such documentation, why was it not brought to the notice of this court? It is highly probable than not, that the Plaintiff's claim for 5% of the gold allegedly mined by the 4th Defendant company is a figment of his own imagination. That claim will also fail.
From the foregoing, the plaintiff is not entitled to any of his claims against any of the Defendants. Judgment is accordingly entered against him. Obviously, the plaintiff ought not have sued the 1st, 2nd and 3rd Defendants in their personal capacities because he had no cause of action against them and they also had no personal obligations towards him. This will be considered in the award of costs.
I chose not to comment on the pendency of the alleged robbery case against the Plaintiff at the circuit court. It is the duty of the Attorney General to prosecute such cases and if it turns out at the end of the day that the Plaintiff was persecuted in any way, he will not be left without redress- that is an issue between him and the Republic!
I award cost of GH¢10,000.00 against the Plaintiff in favour of the Defendants.