IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
LANDMARK SECURITY LTD. - (Plaintiff)
ANGLOGOLD ASHANTI GHANA LTD. - (Defendant)
DATE: 7TH JUNE, 2016
SUIT NO: RPC/84/2015
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Plaintiff claims the following reliefs endorsed on its amended writ as follows:
i. An order directed at the defendant to pay the amount of One Hundred and Thirty Thousand, One Hundred and Seventy Nine Ghana Cedis, Eleven Pesewas (Ghc130.179.11) as compensation for the termination of the contract to the agreement governing the contract.
ii. Interest on the said amount indicated in (i) above at the prevailing bank rate from 1st September, 2014 till date of final payment.
iii. An order directed at the defendant to pay the plaintiff’s monthly contract rate terminating the contract in lieu of notice to the plaintiff.
iv. Interest on the said monthly contract rate at the prevailing bank rate from the date of termination of the contract till date of final payment.
v. Damages for breach of contract.
vi. Cost including legal fees.
vii. Any other just/equitable order that the court may deem fit
In the amended statement of claim plaintiff avers that it entered into a contract with the defendant for the provision of private security services at defendant’s offices at Gold house, Kotoka International Airport, PHU Tema, Odorkor Guest House and Windilands Guest house on November 1, 2013 for a duration of two years even though each party had the option to terminate the contract by giving seven days notice.
Plaintiff then contends that despite the fulfillment of its bargain the defendant without any notice and stated reason, called an officer of the plaintiff’s company on 29th August, 2014 to pull all plaintiff’s security guards on duty out of the premises of the defendant’s properties. Defendant followed it up with a letter on 31st August, 2014 to terminate the contract with effect from 1st of September, 2014. Plaintiff upon receipt wrote to the defendant demanding a compensation of Ghc130.179.11 in what plaintiff claims to be in line with the contract between the two and also industry and business rates at the time of the termination. To plaintiff the defendant has failed to pay the compensation for the termination of the contract. And following the termination the defendant also failed to pay plaintiff the monthly contract rate of USD$12.047.00 in lieu of notice. Hence the reliefs that plaintiff seeks before the court.
Defendant has denied the claims of the plaintiff and joined issues with the plaintiff on the averments made in the statement of defence. Defendant then proceeded to set out the basis of its action of termination of the contract between the two. To defendant it came to light that one of its employees Frank Parker Amoyaw was a director of Plaintiff’s company and this was a conflict of interest situation. And the said director of Plaintiff’s company failed to disclose this conflict of interest situation to defendant. Besides as the termination was in accordance with the notification of award document as well as the condition of the Tender it had breached no contract. To defendant as far as a breach of conflict of interest is concerned it may terminate without notice and hence plaintiff was not entitled to its claim before the court.
As the pretrial conference failed to settle the matter between the parties, the following were agreed upon as the issues for trial:
1. Whether or not the plaintiff was duly awarded a contract
2. Whether or not the defendant breached the contract between the parties
3. Whether or not plaintiff is entitled to its claim
ANALYSIS OF THE EVIDENCE AND APPLICATION OF THE LAW
A reading of the pleadings and the evidence of the Plaintiff appears to me that he claims damages or what he terms as “compensation” for what plaintiff alleges to be unlawful termination of a two year contract it had with the defendant for the provision of security services at certain properties of the defendant in Accra. It is a notorious and settled principle of evidence that a party making a claim bears both the burden of producing evidence and burden of persuasion, the two being components of the burden of proof. The burden of persuasion is defined in section 10 of the Evidence Act to mean:
“For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of tribunal of fact or the court
(2) the burden of persuasion may require a party
(a) to raise a reasonable doubt concerning the existence of a fact or
(b) to establish the existence or non existence of a fact by a preponderance of the probabilities or proof beyond reasonable doubt”
The burden of producing evidence on the other hand is defined in section 11 as follows:
“(1)For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.
(4) In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of a fact was more probable than its non-existence.
Per section 14 of the Decree, a party has the burden of persuasion as to each fact the existence or non existence of which is essential to the claim or defence that party is asserting whiles section 17 governs the allocation of the burden of producing evidence. It notes that the burden of producing evidence of a particular fact is on the party against whom a finding on the fact would be required in the absence of further proof and that the burden of producing evidence is initially on the party with the burden of persuasion as to the fact.
In this regard Dr. S. Twum, JSC noted in the case of BAKER-WOODE v NANA FITZ [2007-2008]
SCGLR 879 that:
‘the common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim’
The Supreme Court had earlier reiterated this principle in the case of ABABIO v AKWASI III [1994-95] GBR 774 where the court noted as follows:
“a party whose pleadings raised an issue essential to the success of his case assumed the burden of proving such issue. The burden only shifted to the defendant when the plaintiff has adduced evidence to establish the claim”
The plaintiff having made a number of allegations and praying for remedies, how did he go about discharging its obligations under the law? And how did the defendant rebut any claim made by the plaintiff?
Plaintiff gave evidence through its representative and Chief Operation Officer Nene Narteh Wayo III in line with plaintiff’s pleadings. Plaintiff in pursuance of its objective of proving its claim tendered the following documents at the Case Management Conference: Ex ‘A’ being the notification of award of contract letter, Ex ‘B’ an executive evaluation of the bidders of the contract and the decision to award the contract to the plaintiff. Ex ‘C’ is a letter from defendant’s manager with its attachment. The Ex ‘D’ is the termination of contract letter, Ex ‘E’ are series of email exchanges between officials of the parties whiles Ex ‘F’ is plaintiff’s response to Ex ‘D’ which terminated the contract. Ex ‘G’ is an invoice by plaintiff for what he deems to be compensation for the termination of the contract whiles ‘H’ and ‘J’ constitutes defendants response and plaintiff’s calculation for arriving at the figure it seeks respectively.
Defendant on the other hand tendered through its Administrative Manager, Edward Jonah Aggrey-Fynn; Ex ‘1’, a conflict of interest declaration form signed by Frank Parker Amoyaw, the majority shareholder of plaintiff company who also happened to have been an employee of defendant at the time the contract was awarded to plaintiff company, Ex ‘B’ being a search results from the Registrar General’s department on Plaintiff’s company and finally the letter of defendant that purported to terminate the contract with the plaintiff.
Ex ‘A’ tendered by the Plaintiff’s representative, which is the notification of award of contract seems to form the basis for the resolution of much of the conflict in this case. Defendant’s counsel in cross examining the representative of the plaintiff appears to concur in the significance of Ex ‘A’ in the following:
Q. Take a look at Ex ‘A’. Apart from Ex ‘A’ which notified you of the award of this contract to you and signed by the defendant, there is no other agreement executed between you and the defendant company in respect of the contract
A: Yes, my Lord this is the document that authorized us to mobilize and take over the contract”
Implicit in the question was an admission by the defendant that per Ex ‘A’ there was an agreement between the parties. Defendant’s representative, Edward Aggrey-Fynn in his witness statement at paragraph 5 notes that “on the 1st of October, 2013 the defendant by a notification of award of contract informed the plaintiff of the award of a contract to provide security services …”
It is therefore clear that both parties were ad idem that a contract came into being by virtue of Ex ‘A’. And the rule is that where a party makes an averment and that averment is admitted or is not denied then no issue is joined on that matter for determination. See Brobbey J. (as he then was) in HAMMOND v AMUAH  1 GLR 89. I was therefore surprise to see the first issue for determination being whether or not plaintiff was duly awarded a contract. There seems to be no controversy at all regarding that as no issue was joined either in the pleadings or during trial for that to have been slated as an issue for determination. As both parties were on the same page of the existence of a contract between them I will proceed to determine the crucial issue as to whether plaintiff proved a breach of the contract by the defendant when it terminated same. As a corollary to this issue will also be a determination as to the claim of an amount of Ghc130.179.11 and $US12.047 being claimed by the plaintiff as compensation and monies that ought to be paid in lieu of notice for termination of contract respectively.
Nene Narteh Wayo III in his witness statement gives a glimpse of the claim of a breach of contract by the defendant first in paragraph 6 of the statement that the contract spelt out the mode of termination by each party giving a seven days notice to the other. To Nene Nartey Wayo III the defendant’s Human Resource Manager just called the plaintiff on the 28th of August, 2014 to pull out plaintiff’s security guards from defendant’s offices without having provided the seven days notice. And it was not until three days later that defendant wrote purporting to give the seven days notice when orders had previously been given to the Plaintiff to vacate the premises of the defendant.
Defendant contest the need to give any notice at all to the plaintiff in view of what it claims to be serious breaches of its ethical issues regarding non disclosure of conflict of interest situation for the 75% majority shareholder of plaintiff’s company in the person of Frank Parker Amoyaw. Plaintiff does not dispute that the said Frank Amoyaw is the majority shareholder and was an employee of the defendant’s company at the time that it won the bid to perform the security services for the defendant. From Ex ‘C’ which was part of the tender package delivered to the bidders, specifically under section C 14 it states as follows:
“In acceptance of the contract the contractor undertakes to act only on the basis of utmost good faith and trust in the execution thereof. Should the contractor commit an act which may compromise the ethical relationship between the contractor and the company or which is contrary to the company’s ethics, with which the contractor declares itself fully familiar, then the company shall have the power at its discretion to terminate the contract forthwith”
Exhibit “1” tendered by the defendant is the declaration of conflict of interest form signed by the majority shareholder of the plaintiff. Frank Amoyaw ticked “no” to questions that asked whether he expected any financial reward or interest in a company that is doing or has expressed interest in doing business with the defendant, any company which he has a working relationship with or is a director or is a member or a director or a beneficiary of a company that has expressed interest in doing business with defendant etc. It is true that Frank Amoyaw signed this form on 9th March, 2011 and the contract was awarded on 1st October, 2013 and he could not at the time of signing the conflict of interest form have foreseen that his company was going to bid for a contract two years later. Nonetheless, when the situation arose when his company was bidding for the contract the said Frank Amoyaw was bound to have declared his interest in plaintiff’s company and his failure to do so was not accidental but deliberate as there is evidence on record that Frank Amoyaw had access to confidential information in defendant’s company to assist plaintiff to make its bid successful. One such information is Ex ‘B’ which is executive adjudication and relates to confidential information from the defendant concerning the bidders and how defendant went about choosing plaintiff. How did plaintiff get this information? The answers of Plaintiff’s representative in cross examination show how he was economical with the truth in the following exchanges:
“Q: Take a look at Ex ‘B’ it was not addressed to you, was it?
A: No it wasn’t, My Lord
Q. In fact it is an internal document of the defendant company. Isn’t it
A. Yes My Lord
Q. I am putting it you that such an internal document could only have come to your knowledge with the assistance of an employee of defendant
A: Yes My Lord
Q. I am further putting it to you that defendant company will not send such confidential document with information about your fellow bidders to you
A: My Lord this document was sent to us through our email
Q. I am further putting it to you that you are privy to such internal document because your majority shareholder Frank Amoyaw was at the time an employee of the defendant company.
A. Frank Amoyaw is my younger brother and at the time an employee of AGA but never part of the tender committee. Besides he was stationed at Obuasi”
The plaintiff never produced the email that had Ex ‘B’ as the attachment and the inference drawn by counsel for the defendant cannot be far from the truth that Ex ‘B’ got into the custody of plaintiff through the instrumentality of the majority shareholder of plaintiff. As a matter of law defendant as an employer of plaintiff was not even bound to give any reasons at all for the termination of the contract provided it complied with the procedure set out by the parties through their terms of engagement. See the cases of BANNERMAN-MENSON v GHANA EMPLOYERS ASSOCIATION [1996-97] SCGLR 417; WILLIAM AMPIAH v GHANA COCOA MARKETING COMPANY
(Unreported) H1/43/12 dated 21st March, 2013.
From the evidence on record as reflected in the analysis above I find as a fact that save for the number of days notice, defendant did not breach a term of the agreement when it terminated the contract. The only matter worth considering will be whether the defendant complied with the requisite days notice that ought to be provided in Ex ‘A’.
When defendant caused plaintiff to withdraw all his workmen from defendant’s sites and its attention was drawn to the lack of notice not given, defendant purported to provide the notice on 31st August, 2013 per Ex ‘D’. This was a clear admission that defendant was bound to provide the necessary notice of termination and the contention of counsel for defendant that it had the right to terminate without notice when it has to do with conflict of interest cannot be right. Ex ‘D’ was written to plaintiff three clear days after it had stopped plaintiff from carrying on with the work. The plaintiff had provided services for virtually the entire month of August, 2014 and I think was entitled to be paid for the month in lieu of the requisite days notice not having been adequately provided. The court can find guidance in termination of such nature under sections 15 and 17 of the Labour Act, Act 651, even though this is not a labour issue before the court. Those sections set out matters of notices of termination of employment and the requisite payments that ought to be made.
Taking some guidance also from sections of the Labour Act, Act 651 I find that for failing to give the seven days notice to the plaintiff and as the contract was payable on monthly basis the defendant is liable to pay to the plaintiff an amount of $US 12,047 being the monthly payment payable to the plaintiff for the provision of security services to the defendant.
What then of the claim of Ghc130.179.11 being claimed by the plaintiff. Having found that there was nothing unlawful about the termination of the two year contract save the non-provision of adequate notice of seven days for the termination of the contract, the claim for Ghc130.179.11 as compensation should ipso facto be dismissed. Nonetheless, I cannot simply dismiss it without touching on some fundamental legal issues that this claim of plaintiff raises for the consideration of the court. The basis of the claim of this amount according to Nene Wayoe III is as a result of non-provision of notice for termination and a payment that is in line with industry practice.
Plaintiff admits that the only document that defines the terms of the parties was Exhibit ‘A’ and yet plaintiff proceeds to make the demand for Ghc130.179.11 as if Ex A’ makes provision for such payment. Counsel for defendant rightly exposed this as misconceived in the following:
“Q: You have told this court that the only document defendant executed for you was the award of contract notification
A: Yes My Lord
Q. Does this Award of Contract Notification entitle you to submit such an invoice
A. Yes My Lord
Q. Take a look at Ex ‘A’ which is the award of Notification. Can you please point to the part that entitles you to send that invoice.
A. My Lord there is no point in this letter indicating that but we believe we had a running contract with the defendant company and that it was wrongfully terminated and that is why we put in those claims
Q. I put it to you that the agreement between the parties did not entitle you to make to any compensation
A. My Lord we believe we are entitled to compensation”.
It is trite learning regarding parol evidence rule that generally once parties to an agreement have reduced their contract into a written form, the parties will be debarred from adducing extrinsic evidence to contradict what they have written. Going through Ex ‘A’, I am unable to find anywhere that makes plaintiff entitled to the whooping amount that he demands. Indeed plaintiff’s representative could not find anything from the document except to resort to his own beliefs and views of what he fantasizes to be entitled to from the defendant. The exceptions to the parol evidence rule is 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.
Which of the exception did plaintiff found his claim? I find none as he advanced none before the court. And it is not the duty of the court to embark upon any journey of discovery into uncharted waters. After all the court is not Christopher Columbus or better still Don Diego D’zambuja to set sail on a mission to discover furthermost territories of evidence and law to bolster the floundering claims of a party. The claim for the Ghc130,179.11 had never been part of the terms of the contract. The express terms of the contract does not admit of the claim of the plaintiff. Neither are there any implied terms by virtue of a statute or custom or common law.
And even if it had been by virtue of the tender documents as plaintiff sought to convey, plaintiff would still not be entitled to any such an amount as it is founded upon a termination of the contract that constitutes a breach or flies in the face of the agreement. And I find none of such here.
Plaintiff has also mounted a strong claim that the termination was unlawful due to the fact that the letter in the form of Ex ‘3’ was signed by a person not authorized by the express terms of the agreement between them to sign such letter of termination. Ex ‘3’ was signed by Anthony Adetse,
Human Resource and Administration Manager of defendant. It is true that Ex ‘C’ the tender document which was provided plaintiff at the time of bidding for the contract demands that such letter be signed under clause 15: 5 by the Senior Vice President of defendant. Comparing this Ex ‘C’ with ‘A’ which awarded the contract to the plaintiff, Ex ‘A’ did not restrict the persons that were entitled to sign the termination letter. In any event the court has found that Ex ‘3’ sent to the plaintiff three days after the termination was procedurally flawed and is on that basis that the court finds the claim for $US12,047 well made out. That will not in any way lead to the establishment of the claim of Ghc130,179.11.
From the above, the court will dismiss the claim of the plaintiff in its relief (i) as unproven. So also is relief (ii) as there cannot be an interest on an unproven claim.
The relief (iii) would be granted for the payment of $US 12,047 or its cedi by the defendant to the plaintiff. I am however unable to grant relief (iv) for the payment of interest on the said amount for the following reasons:
Per Ex ‘3’ written on 31st December, 2013 the defendant indicated that a cheque will be made available for collection by plaintiff. Edward Aggrey – Fynn under cross examination again noted that defendant made a cheque available for payment to plaintiff for lack of notice but plaintiff failed to collect the cheque. This claim was not contradicted by the plaintiff and I find as a fact. Interest in law is paid as a price for the use of one’s money. Interest payment may arise by agreement between the parties, by the usage of the trade as developed by the lex mercatoria in Europe in the middle ages, damages awarded by the court or by the provisions of a statute. However, in this instance where the defendant had made available a cheque for collection and plaintiff refused to collect it believing that it was entitled to a greater amount, then defendant cannot be asked or be called upon by the court to pay a price in the form of interest for monies it had made available for collection. That relief sought for interest on the $12,047 is hereby refused
The claim for damages is also dismissed. In the exercise of the discretion of the court in the award of cost; I am not unmindful that save for the award of $US12,047or its cedi equivalent in favour of plaintiff, his entire claim has been dismissed by the court, I will award cost of Ghc 4.000.00 in favour of the plaintiff.