SAMUEL KWABENA OPOKU V CARANA CORPORATION

JUDGMENT

EMMANUEL ANKAMAH, JA:

INTRODUCTION:

The Defendant/Appellant by a Notice of Appeal is praying this Court to set aside the judgment of the High Court, Accra (Industrial & Labour Division) dated 7th October 2020 on the following grounds:

a.    The learned trial Judge erred when he held that a score of 3.75 amounted to above average.

b.    The learned trial Judge erred when he held that the Respondent/Respondent did not underperform under his fixed-term contract.

c.    The learned trial Judge erred when he awarded Respondent special damages when no evidence was adduced in support of this.

d.   The    quantum    of     general    damages           awarded     in     favour      of                 the Respondent/respondent was excessive and harsh.

e.    The judgment is against the weight of the evidence.

f.     Additional grounds shall be filed upon the receipt of the judgment.

In this opinion, the Plaintiff/Respondent shall be referred to as the Respondent and the Defendant/Appellant shall be referred to as the Appellant.

FACTS THAT CULMINATED IN THIS APPEAL:

The Appellant was an American-based corporate entity registered in Ghana as an external company undertaking a project in Ghana known as the USAID-Financing Ghanaian Agricultural Project (“FINGAP”). The Respondent was employed by the Appellant as a Finance Sector Support Unit Manager in 2014. The employment engagement was based on a contract of employment dated 8th September 2014 and was to last till 31st July 2018. The Appellant terminated the Respondent’s contract of employment by a letter dated 5th September 2016 just after two years of engagement stating “deliverables not met following a performance improvement plan”. This was prior to the Appellant conducting a mandatory Performance Appraisal on the Respondent which resulted in a score of 3.75 out of 5. Subsequent to the Performance Appraisal, the Appellant proceeded to subject the Respondent to a Performance Improvement Plan as a tool to improve on the Respondent’s lagging areas on the job.

The Respondent disputed the reasons given in his termination letter and caused his lawyers to write a letter to the Appellant highlighting the erroneous termination. According to the Respondent, his employment contract was governed by the terms set out in the contract therein and the employee handbook. There was no mention of subjecting the Respondent to any Performance Improvement Plan (P.I.P) after undergoing the mandatory annual Performance Appraisal and therefore it was not justified to terminate his employment on that basis.

However, the Appellant in response contended that it was within its right to terminate the Respondent’s employment without providing any reasons and further its reasons given were justified. Moreover, the Appellant had paid an amount of GHS 56,065.52 into the Respondent’s account in lieu of the termination notice.

Aggrieved by the Appellant’s resolve to affirm the termination, the Respondent commenced this action in the High Court (Industrial and Labour Division) against the Appellant for the under-listed reliefs:

a.    A declaration that the letter of termination written by the Defendants (sic) to the Plaintiff was unlawful and sins against the terms of engagement or the employment contract.

b.    An order of the Court pronouncing the termination as wrongful and unlawful

c.    An order that the Defendant be compelled to pay all the salary and allowances due to the Plaintiff for the rest of the contract duration from 1st October 2016 to the expiry of his contract on 31st July 2018 at a monthly salary of US$8,116.24.

d.    A further order of general damages for unlawful termination and breach of contract.

e.     Special damages of US$150,000.0 for loss of reputation and professional integrity.

The Appellant in its statement of defence essentially reaffirmed its justification for terminating the Respondent’s employment. Eventually, the suit proceeded to trial whereupon the trial Judge found in favour of the Respondent on his claims and entered judgment in the following terms:

“In the circumstance and taking the totality of evidence adduced (sic) this court declares

(a) that the letter of termination written by the Defendant’s to the Plaintiff was unlawful and sins against the terms of the engagement or the employment contract (b) that the termination is wrongful and unlawful (c) that relief (c) is dismissed (d) that this court awards general damages of GHc100,000.00 for unlawful termination and breach of contract and (e) this court awards special damages of $150,000.00 for loss of reputation and personal integrity.”

The trial Court proceeded to award costs of Ghc30,000.00 against the Appellant. It was against this background that the Appellant filed the Notice of Appeal stated earlier in this opinion.

A cursory revision of the duty of this Court in exercising its appellate jurisdiction emphasizes that an appeal is by way of rehearing and rehearing means having a look at and taking into consideration all the relevant evidence on record. The appellate court, so far as appeals are concerned, is virtually in the same position as if the rehearing were the original hearing and may review the whole case and not merely the points as to which the appeal was brought. Tuakwa v Bosom [2001-2002] SCGLR 61

The authorities are replete in describing the powers of an appellate Court of first instance. An appellate court is required to review the whole evidence on the record of appeal and come to its own conclusion whether the findings both of law and facts by the court below were properly made. Where the appellate court concludes that findings of fact by the court below are not supported by the evidence on the record or where the findings are perverse, then it may set those findings aside. Another ground on which an appellate court will set aside findings and conclusions arrived at by a lower court is where the findings and conclusions are based on a wrong proposition of law. See the cases of Achoro and anor V. Akanfela [1996-97] SCGLR 209

The Appellants argued grounds (a) and (b) together under the omnibus ground (e). These grounds are:

a.    The learned trial Judge erred when he held that a score of 3.75 amounted to above average.

b.    The learned trial Judge erred when he held that the Respondent/Respondent did not underperform under his fixed-term contract.

c.    The judgment is against the weight of the evidence.

These grounds impeach factual findings made by the trial judge and in our opinion, it is proper to consider grounds (a) and (b) together with ground (e) that the “judgment is against the weight of the evidence”. This ground of appeal raises a presumption that the judgment of the court below on the facts is correct. The appellant in such a case assumes the burden of showing from the evidence on record that the judgment is indeed against the weight of the evidence. The appeal on that ground must fail if that burden is not discharged.

The Appellant contends that it was erroneous for the trial Judge to make a finding of fact that the Respondent’s score of 3.75 amounted to ‘above average’ as it was not supported by the evidence on record. Moreover, the trial Judge upon evaluating the evidence did highlight that the Respondent’s score of 3.75 was between Average and Above Average. The Judge posited as follows (see page 115 of Vol III the Record of Appeal):

“It would be observed that the score is form 1 through to 5, with 5 being outstanding, 4 being Above Average, 3 being Average, 2 being below Average and 1 being Unsatisfactory. The score of 3.75 therefore falls between Average and Above Average. During cross-examination of Plaintiff, this was not disputed. It is therefore settled that the score of 3.75 was between Average and Above Average.”

The Appellant thus submitted that the trial Judge upon highlighting that it was “settled” the score of 3.75 was between Average and Above Average erred in subsequently making a finding of fact that the Respondent’s score of 3.75 was “Above Average”.

The case of the Respondent is that the first ground of appeal is irrelevant because the Appellant witness, Gareth Rhys Morris stated that 3.75 was “better than average”. Counsel for the Respondent postulated that:

“Something ‘being better than average’ simply means that that thing is above average. Better than average cannot mean ‘average’ or below average’ it simply means ‘above average’.

Counsel for the Respondent further relied on Exhibit 2 which was the Report on the Annual Performance Review of the Respondent as executed by Rick Dvorin, the Appellant’s Project’s Chief of Party on 20th March 2016 (see page 124 of Volume 2 of the RoA). It was submitted on behalf of the Respondent that there was no ambiguity in the document (Exhibit 2) as to the specific assessment provided by Rick Dvorin and therefore this Court must not be called to give a different interpretation to it. Counsel relied on Ansong Vrs Gorman and Another (J4 37 of 2011 [2011] GHASC 37 (30 December, 2011) on the principle that words written in a private document or contract by parties are presumed to be the intentions of the parties unless otherwise proven hence the Courts must not substitute its intentions for that of the parties.

It is indeed a sound legal principle of law that written document must be given its literal interpretation within the context of the entire document if such an interpretation accords with the intention of the authors of the affected document see Boateng v. Volta Aluminum Co. Ltd [1984-6] 1 GLR 733. Again, in interpreting deeds and contractual documents between parties, the law enjoins the court to have regard, generally speaking, to the intentions of the parties expressed in the contractual document and thus, external matters not stated by the parties as part of the contract need not be imported therein to form part of the contract unless otherwise permitted by law, see Section 177 of the Evidence Act, 1975 (NRCD 323) and PY Atta & Sons Ltd v. Kingsman Enterprises Ltd [2007-2008] 2 SCGLR 946 at 964-965

In this appeal, the Annual Performance Review details the ratings each employee may be subjected to after assessment. These ratings are neatly provided in page 124 of the RoA as:

1 – unsatisfactory (requires significant improvement)

2 – Below Average (Failed to meet minimum job requirements/goals

3 – Average – (Meets minimum job requirements/per performance goals)

4 – Above Average – (Exceeded minimums – meritorious results)

5 – Outstanding (Exceptional performance – a leader in meeting goals)

It is undisputed that the Respondent was rated 3.75 and this score was given an explanation by Rick Dvorin that, “I rate same O as a 3.75 which is better than ‘average’, yet less than showing ‘meritorious results”

It is worthy to note the specified ratings and the corresponding remarks admit of no ambiguity. Thus, to hold that the Respondent is ‘Above Average’ directly suggests the Respondent scored ‘4’ and that the Respondent earned meritorious results and exceeded minimums. However, from the facts that was not the obvious case, for the Respondent scored 3.75. This score was supported by a consistent reason that it was less than showing meritorious results which is a clear ‘4’ but also better than a standard ‘3’ which translates to minimum performance goals. This was not contested by the parties and the trial Judge on settling the triable issue (7) of whether or not in the performance appraisal of the year 2015, the plaintiff was rated 3.75 out of a maximum of 5 points which converts to “better than average” by the terms of the contract? correctly stated that:

“The score of 3.75 therefore falls between Average and Above Average. During cross-examination of Plaintiff, this was not disputed. It is therefore settled that the score of 3.75 was between Average and Above Average.”

This Court does not agree with the submissions of the Appellant that the judge erred on page 136 of Vol III of the RoA by holding that the Respondent ‘did not underperform by scoring 3.75 out of 5 which was above average’, the use of ‘above average’ by the Learned trial Judge was not within the context of ‘Above Average’ per Exhibit 2. Throughout the judgment which is on appeal reference to ‘Above Average’ with the two initials in capital letters relates to the stated ratings or metric, however, the use of ‘above average’ is an ordinary expression suggesting that the score of 3.75 is ordinarily above average. In any event, this Court has held that the Judge correctly resolved the specific triable issue (7) upon analysing the evidence adduced and we find no reason to disturb it. There is no merit in this ground of appeal and the same is dismissed.

The Appellant further contends that the holding by the trial Judge that the Respondent did not underperform under his employment contract cannot be supported by the evidence on record. According to Counsel for the Appellant, any evaluation on whether the Respondent had “underperformed” or not under the contract should be done having regard to the terms of the Employment Contract and that any evaluation outside the Employment Contract was wrong.

As expected, Counsel for the Respondent disagreed with the submission of the Appellant’s Counsel. It was contended on behalf of the Respondent that he did not underperform during his employment but rather exceeded expectations in performance.

This Court has considered the entire submissions of both parties and is of the opinion that there is no merit in the arguments submitted on behalf of the Appellant. The evidence on record does not indicate that the Respondent underperformed in his work.

The 2015 assessment of the Respondent on his work output was done by the Appellant through Rick Dvorin in the Annual Performance Review per Exhibit 2. All the parameters set out therein are based on the terms of the Contract of Employment. In Exhibit 2, the Respondent was assessed under the heading Performance Review and the result indicated that he was “Very Good” considering his scope of work plan activities and deliverables. In the same Exhibit 2, on the extent to which results/indicator targets were met: it was provided by the Appellant that the Respondent’s results “were far in excess of targets with only two indicators below the 50% mark of achievement”. One would have expected the Respondent to have been given an overall score of either 1 or 2 if indeed he was underperforming on his job yet he was assessed to be “better than average” by the Appellant.

There is evidence on record that the Respondent upon joining the Appellant’s team was able to achieve US$ 101 million value growth within 2 years when the Appellant had initially projected such a growth to occur in 4 years.

We are of the opinion that the Respondent did not underperform on his job and the trial judge was right when he held that:

“However, it has been proven per the evidence adduced that the Respondent did not underperform by scoring an annual performance score of 3.75 out of 5 which was above average and was also able to move the value of the project from US$1.8 million to US$ 101 million at the time of termination”

Therefore, on grounds (a), (b) and (e) we hold that the findings made by the trial judge were supported by the evidence on record.

We shall now consider grounds (c) and (d).

They are:

a.    The learned trial Judge erred when he awarded Respondent special damages when no evidence was adduced in support of this.

b.    The    quantum    of     general    damages           awarded     in     favour      of                 the Respondent/respondent was excessive and harsh

The above grounds bother on questions of law and it is the opinion of this Court that the vexed question is whether the Respondent was entitled to claim both special damages and general damages in the sum of US$150,000.00 and Ghc100,000 respectively, upon the unlawful termination of his employment by the Appellant?

In Ghana, the awarding of special damages for wrongful termination of employment is not common, unlike the award of general damages. In the case of Barclays Bank Limited v. Godson Awortwi Dadzie and Philip Nyatuame Civil Appeal NO: J4/41/2017 dated 16th May, 2018 it was held that general damages for prospective loss of employment violated the principle of freedom of contract and the duty of the employee to mitigate their losses. However, in the case of Eastern Alloys Company Ltd v. Chirano Gold Mines (J4 48 of 2016) [2017] GHASC 5 (26th January,2017) the court awarded general damages for severance of labour in the amount of $50,000.00.

In the case of Ashun v. Accra Brewery Limited (J4 18 of 2007) [2008] GHASC 21 (12 November, 2008) it was held that a contract of employment, though for an indefinite period, was not a contract for life and was clearly terminable. Hence it did not give the plaintiff the right to be paid a salary till his retirement age. It was also held in the same case that an employee whose appointment had been wrongfully terminated had a duty to mitigate his losses by looking for alternative employment. Coupled with that is the statutory provision, as contained in section 17 of Act 651 that a contract of employment may be terminated at any time by either party giving to the other party notice of his intention to do so.

In this present appeal, there was no basis for the trial judge to award special damages as it violated the principle that the respondents had a duty to mitigate their losses. Secondly, there was no proof on the balance of probabilities the claims made by the Respondent on his reputation in the banking industry, besides this was not a case of defamation but of wrongful termination of an employment contract. We hereby set aside the award of US$150,000.00 as special damages as being without merit.

On the other hand, we are of the opinion that to the extent that the termination was wrongful, the trial Judge was right in awarding general damages.

In conclusion, save that there was no basis or merit by the High Court in the award of US$150,000.00 as special damages, the appeal succeeds in part. Grounds a, b, d and e are dismissed.

[SGD.]

JUSTICE E. ANKAMAH, JA

(Justice of the Court of Appeal)

I agree          

[SGD.]                                          

JUSTICE M. WELBOURNE, JA

(Justice of the Court of Appeal)

I also agree

[SGD.]

JUSTICE A. OPPONG JA

(Justice of the Court of Appeal)

Counsel: Ankomah Mensah for Plaintiff/Respondent

Adlaide Asiedu with Womoakor Jennifer for Defendant/ Appellant