AARON DZOTSE V. UBI PETROLEUM LTD

JUDGEMENT

OWUSU, J.

The Plaintiff issued out this Writ of Summons against the Defendant for the following reliefs:

1. A declaration that the Plaintiff’s  employment was wrongfully terminated. 

2. His salary from September 2013 to the date of final judgment.

3. Damages for the wrongful termination of his employment. 

4. Damages for his unlawful arrest and detention caused by the Defendant.

5. Costs. 



By an accompanying Statement of Claim the Plaintiff averred that until September 2013 he  was employed as the manager of the Defendant’s oil filling station at Kasoa. According to  the Plaintiff on the 13th of September 2013 he was invited by Defendant’s retail manager,  one Mr. Kangah to submit his sales book the following day for discussions. He was told the  following day that his accounts was not clear and without being informed of any wrongdoing  on his part the retail manager invited the police already in the premises to arrest him and he  was kept in custody for two days. He claims that upon his release he reported to the office  but was told a new manager has taken over his position and his personal and private  properties in his office had been burnt. He maintains that the action of the Defendant through  Mr. Kangah was to terminate his appointment without giving him due notice or reasons for the termination and also without giving him an opportunity to defend himself or explain the  contents of his sales book. Plaintiff contends that the Defendant’s actions have caused him  much pain and Defendant has failed and refused to compensate him for the pain,  embarrassment and emotional distress he has suffered as a result of their actions. He contends  that his employment with the Defendant has been wrongfully terminated. 

Interlocutory judgment was entered in favour of the Plaintiff but later set aside for the matter  to take its normal course. 

In its Defence and Counterclaim filed on the 28th of July 2015 it averred that on the 12th of  September, 2013, a day before Plaintiff was invited to their head office, Defendant’s sales  executives discovered that the actual stock of oil products at the Kasoa Filling Station, where  the Plaintiff was manager, fell short of the stock the Plaintiff had reported to the company.  According to them, Plaintiff was invited to account for the difference which he failed to do  and when it became clear that Plaintiff had defrauded the Defendant he was reported to the  Police. The Defendant further averred that the Plaintiff has defrauded the Company and  provides for the particulars of fraud in paragraph 3 of their Statement of Defence. Defendant  Counterclaims for the following: 

1. The current market value of 21,210 liters of oil products. 

2. Interest on the said value until the date of final payment. 

3. Damages for fraud. 

The following issues and additional issues were set down as the issues for the trial:

a. Whether or not the plaintiff was wrongfully dismissed from the employ of the  defendant. 

b. Whether or not the defendant caused the wrongful arrest and detention of plaintiff.

c. Whether or not the plaintiff is entitled to his claim. 

d. Whether or not plaintiff committed fraud on the defendants and was reported to the  police. 

e. Whether or not the defendants are entitled to their counterclaim.

On the principle as to whom the evidential burden must fall, the Supreme Court in the case of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-2006] SCGLR 882 Holding 2, enunciates the law that a Plaintiff in a civil case is required to produce sufficient evidence to  make out his claim on a preponderance of probabilities.

This understanding is further reinforced in Holding 5 of the above case as follows: 

“It is sufficient to state that this being a civil suit, the rules of evidence require that the  plaintiff produces sufficient evidence to make out his claim on a preponderance of  probabilities, as defined in section 12(2) of the Evidence Decree, 1975(NRCD 323). In  assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the  defendant, must be considered and the party in whose favour the balance tilts is the  person whose case is the more probable of the rival versions and is deserving of a  favourable verdict.” 

It is trite that the legal burden of proof will generally lie on a party asserting the affirmative  of an issue and it is the duty of such a party to establish a requisite degree of belief concerning  a fact in the mind of the tribunal of fact or the Court. I refer to Section 11 and Section 14 of the EVIDENCE ACT 1975 [NRCD 323] and the case of GIHOC REFRIGERATION and HOUSEHOLD v. JEAN HANNA ASSI [2005-2006] SCGLR 458 @ page 485. 

I shall proceed to address issues (a) and (d) together. 

a. Whether or not the plaintiff was wrongfully dismissed from the employ of the  defendant. 

d. Whether or not plaintiff committed fraud on the defendants and was reported to the  police. 

Wrongful dismissal is the discharge of the contract of employment by the employer without  notice at all, with insufficient notice where this is required or without justification.  The Plaintiff is seeking a declaration that his employment was wrongfully terminated. Issue  (a) as set out in the application for directions filed by the Plaintiff is whether or not the  plaintiff was wrongfully dismissed from the employ of the defendant. In law there is a  difference between “dismissal” of an employee and “termination” of employment. Sophia  Adinyira JSC in the case of NUNOOFIO v. FARMERS SERVICES CO LTD [2007-2008]  SCGLR 926 at 940 stated that: 

“……'dismissal' and 'termination' though both have the same effect of bringing to an  end a contract of employment, yet they may not be synonymous as the legal  consequences are different in terms of a contract of employment. A dismissed employee stands to lose all his entitlements; whereas an employee whose contract of employment  is terminated takes away all his entitlements.” 

These two terms have been used interchangeably. In his book LABOUR LAW at page 304,  the learned author James Odartey Mills draws a distinction between the two. A dismissal is  a discharge of the contract of employment by the employer with justification, and which  justification often imputes or connotes an element of misconduct on the part of the employee  as alleged against the Plaintiff in this case. This is against a termination which is simply an  expression of the terminating party’s unwillingness to continue with the employment  relationship with the other party. Whereas a termination requires specific periods of notice  to be given to the other party, in a dismissal there are no such specific requirements in law  and therefore it may or may not be given depending on the circumstances. In terminations  the periods of notice are paid for where the party terminating prefers not to give any notice  and this payment can be enforced, in a dismissal the notice that is not given may not be paid  for and is also generally not enforceable against the employer. 

It is the Defendant’s case that Plaintiff had allegedly inflated figures and could not account  for sales amounting to GH₵45, 000.00. This connotes some act of wrongdoing on the part  of the Plaintiff. Now was the Plaintiff's dismissal wrongful? Was the dismissal in breach of  any terms of the Plaintiff's employment? Was the dismissal without justification? 

Defendant’s representative was unable to state categorically whether or not there were any  terms of employment governing the parties. These were his answers to questions asked in  proceedings of the 22nd and 26th of January 2016 at pages 3 and 2 respectively:

Q: You know do you not know that the Plaintiff was never given any written  contract of employment. 

A: I will have to check that. 

Q: But you said you have been fully briefed of this matter 

A: Yes 

Q: I put it to you that the Plaintiff was never given any contract of employment.

A: Okay, my lord. 

Q: I suggest to you that you never gave the Plaintiff any contract of employment.

A: I am yet to find out.

Section 12(1) and (2) of the LABOUR ACT, 2003 [ACT 651]. The section provides that  the employment of a worker by an employer for a period of six months or more or for  a number of working days equivalent to six months or more within a year shall be  secured by a written contract of employment and the contract of employment shall  express in clear terms the rights and obligations of the parties. 

There is no evidence suggesting that parties were governed by any written contract. I find as  a fact that the Plaintiff was never given any written contract of employment. In the absence  of a written contract of employment between the parties it is only fair and equitable that the  relationship between the parties is governed by the LABOUR ACT, 2003, ACT 651. 

It is the case of the Defendant that the Plaintiff was not dismissed but he abandoned his post.  Does evidence adduced suggest that Plaintiff abandoned his post? I do not think so. It is the  Plaintiff's case that upon his release from Police custody he reported to his office only to be  told that a new manager had been appointed. PW2, in the person of Ben Dzah told the court  under cross examination that he went together with the Plaintiff to his office and this was  either on the 15th or 16th of September, 2013. In fact in cross examination of the Defendant's  representative on the 26th of January 2016 he admitted that Plaintiff was replaced just a day  after he was arrested by the police. The following transpired: 

"Q: You are aware that you caused the arrest of the Plaintiff on a Friday the 13th of   September, 2013. 

A: Yes my Lord. 

Q: And on Saturday 14th September you replaced him. Not so?

A: Yes I am. 

Q: And since then the Plaintiff has not had access to his office. Not so?

A: That is so because he did not come to work." 

Just a day after Plaintiff was arrested he was replaced. According to Plaintiff when he went  to his office, his personal properties kept in his office had been burnt and this piece of  evidence was corroborated by PW1. If this act of the Defendant is not constructive dismissal  then I do not know what it is. Under the Labour Act, constructive dismissal is not expressly  mentioned and no statutory definition is also proffered however SECTION 63(3) of the  Labour Act covers instances where an employer makes it impossible for an employee to work. At page 322 of the book LABOUR ACT, constructive dismissal is defined by Lord  Denning in the case of WESTERN EXCAVATIONS (ECC) LTD v. SHARP thus: 

"If the employer is guilty of conduct which is a significant breach going to the root of  the contract of employment; or which shows that the employer no longer intends to be  bound by one or more of the essential terms of the contract; then the employee is  entitled to treat himself as discharged from any further performance. If he does so, then  he terminates the contract by reason of the employer's conduct. He is constructively  dismissed." 

Where there is no contract of employment as in this case, the court would be right in holding  that the conduct and actions of the Defendant may be construed as constructive dismissal. 

Defendant's case is that the Plaintiff has defrauded it. According to the Defendant, it  discovered on the 12th of September, 2013 that the actual stock of oil products at the Kasoa  Filling Station, where the Plaintiff was manager, fell short of the stock the Plaintiff had  reported to them. Defendant relied on Exhibits 1, 2 and 3 with exhibits 2 and 3 duly signed  by the Plaintiff to buttress their assertion that Plaintiff misrepresented the stock of oil  products to be over twenty one thousand liters (21,000 liters) in excess of the actual stock,  knowing same was not true with the view to converting and indeed converting the value of  the over twenty one thousand liters (21,000 liters) in excess of oil products. The signature of  Plaintiff suggests that indeed that was a true reflection of the state of affairs at the Kasoa  branch where he was the head but from the evidence adduced can the court conclude or say  as a fact that Plaintiff has been fraudulent in his dealings with the Defendant? In S.A.  TURQUI and BROS. v. DAHABIEH [1987-88] 2 GLR @ 486, it was held that: 

“…………a charge of fraud in law can be taken to be properly made against a party  who knowingly or recklessly whether by conduct or words uses unfair, wrongful or  unlawful means to obtain a material advantage to the detriment of another  party………”

In law, it involves a false representation. In the case of DERRY v. PEEK (1889) 14 APP.  CAS 337 @ 374 the court per Lord Herschell defined fraud thus:

“Fraud is proved when it is shown that a false representation has been made: (1)  knowingly, (2) without belief in its truth or (3) recklessly, careless whether it be true or  false. To prevent a false statement being fraudulent, there must I think, always to be, an  honest belief in truth and this probably covers the whole ground, for one who knowingly  alleges that which is false has obviously no such honest belief”. 

Fraud must not only be specifically pleaded and particulars of same given but it must also be  specifically proven. In the case of ADUMUAH OKWEI v. ASHIETEYE LARYEA [2011] 1 SCGLR @ 319 the court held: 

“…fraud qua fraud was such a serious allegation in legal proceedings. It should not be  lightly made. The courts would look with disfavor on a party who made it and was  unable to substantiate it……And a misrepresentation must be a matter of fact……” 

Has the Defendant been successful at proving fraud perpetrated by the Plaintiff? Was the  misrepresentation made knowingly to defraud the Defendant? Has actual fraud been  established? The Supreme Court in the case of BOATENG (NO.2) v. MANU (NO.2) and   Another [2007-2008] 2 SCGLR @ 1117 noted that fraud must be established to a fraudulent  degree. He who asserts must prove. The Plaintiff's case is that even though he signed against  the stock as is usual the Defendant failed to call for reconciliation. That he was not given an  opportunity to explain the circumstances leading to the shortage. Although the Defendant  admits that there was no audit report it is their case that the signed stock sheet and daily sheet  have comprehensive information to address all enquires such as information with respect to  sales, orders, banking and stocks and the Plaintiff was handed over to the police because he  failed to give satisfactory responses. 

It must be noted that since dismissal connotes a wrongdoing, unlike the case of termination,  the guilt or otherwise of the employee must be established before an action is taken. Fraud  must be proved strictly and I do not think that the Defendant has successfully proved that  Plaintiff knowingly made the false representation. There is no proof that Plaintiff was given  an opportunity to explain the circumstances leading to the shortage. I find as a fact that the  Plaintiff was wrongfully dismissed from the employ of the Defendant. I shall next proceed  to address issue (b).

b. Whether or not the defendant caused the wrongful arrest and detention of plaintiff.

Based on the above findings, it was wrong for the Defendant to have caused the arrest of  Plaintiff and the court finds as a fact that Plaintiff's arrest and detention was wrongful. I will  now discuss issue (e). 

e. Whether or not the defendants are entitled to their counterclaim. 

The Defendant has counterclaimed as follows: 

1. The current market value of 21,210 liters of oil products. 

2. Interest on the said value until the date of final payment. 

3. Damages for fraud. 

Whenever a defendant files a counterclaim, the same standard or burden of proof would be  used in evaluating and assessing the case of the defendant. The Defendant thus assumes this  same burden of proof. 

In the case of JASS CO. LTD v. APPAU [2009] SCGLR 269 @ 271 Dotse JSC noted thus: 

“…whenever a defendant also files a counterclaim, then the same standard or burden of  proof would be used to 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” 

In the absence of sufficient evidence such is required in proof of allegation of fraud against  the Plaintiff the court finds as a fact that Defendant has failed to prove its case and is not  entitled to its counterclaim. 

The burden of proof in civil cases is on a balance of probabilities. In SARKODIE v. FKA  CO LTD 2009 SCGLR 65 the Supreme Court held that the Plaintiff’s evidence should on  the preponderance of the probabilities be more probable than not. The balance tilts in favour  of the Plaintiff. So is the Plaintiff entitled to his claim? 

c. Whether or not the plaintiff is entitled to his claim. 

From the totality of the evidence before the court the Plaintiff is entitled to his claim  accordingly I enter judgment for the Plaintiff. 

1. The court hereby declares that the Plaintiff's employment was wrongfully terminated.

2. The court hereby orders that his salary from September 2013 to the date of final judgment be paid to him. 

Damages are generally measured by looking at how much the employee who has been  dismissed wrongly or unlawfully has lost as a result of the dismissal. The purpose is to put  the dismissed person in much the same position as he would have been in financially if the  wrong had not been committed. I refer to the case of ARKORFUL v. STATE FISHING  CORPORATION [1991] 2 GLR 348. 

3. I hereby award GH₵4, 000.00 as general damages for wrongful termination of  Plaintiff's employment. 

4. I again award GH₵2, 000.00 as damages for unlawful arrest and detention caused by  the Defendant. 

5. Cost of GH₵1, 000.00. 

SGD

JUSTICE LAURENDA OWUSU 

JUSTICE OF THE HIGH COURT

COUNSEL

SEM IROKO FOR THE PLAINTIFF;

KWAKU OSEI ASARE FOR THE DEFENDANT.