BERNARD KOJO MENSAH & ANOR V. BILTON BOGOSO GOLD LIMITED

JUDGMENT

WOOD, JA

The plaintiff/Respondents were working as night duty watchmen at Chujah crossing on the defendant/appellant company’s gold concession, when one of the company’s truck and a hired mini bus were involved in a collision. The company alleged the accident was as a result of their negligence and so declared them off-site. In practical terms, their services were dispensed with forthwith. Claiming that they were employees, they sued them for a declaration that their dismissal was wrongful, prayed the court for the sum of ¢10 million as compensation for the said act and for any other appropriate orders. Clearly dissatisfied with the decision of the trial court, which gave to each respondent ¢4,470,00 as damages for wrongful dismissal, the appellants have appealed to us in this court on the following grounds:

a) “That the judgment is against the weight of evidence adduced at the trial.b) That the High Court against the weight of evidence adduced at the trial erred in holding that the Plaintiffs were employees of the Defendant company.c) That the High Court in the absence of a contract of employment or any other relevant evidence erred in holding that the defendant had wrongfully dismissed the Plaintiffs.d) That the High Court erred in awarding damages for wrongful dismissal on the basis of the evidence before it.”

At the hearing, Appellants stoutly denied the respondents contention that they were at all material times in their employment. They denied the existence of any legal bond between the two of them and described them as employees of Emanet Services (Emanet), independent contractors, engaged by them (appellants) to provide security services. The distinction between the two different relationships is of basic legal importance. The relationship asserted by the respondent is a contract of service. As a result, a fundamental and thorny issue which arose for determination in the court below, and which indeed also arises for our consideration in this appeal, is whether or not the appellant company employed the respondents under a contract of service. The learned trial judge found they were, basing his decision on the following: Exhibit G, a testimonial given them by the appellant company, the fact that following a letter written by the appellants headed Bilton Bogoso Gold Ltd., they handed over company kit, which was in their custody, Exhibit E, an investigative report prepared by the company following the accident that led to their dismissal.

It is this finding which has come under attack as being against the weight of evidence. It was submitted that at common law, the test for determining whether a person is an employee is dependent on whether there exists a contract of service or one of services. The test laid down in Ready Mixed Concrete v. Minister of Pensions and National Insurance (1968) 2 Q.B. 515 and in which Mac Kenna J, analysed a contract of service in some detail and concluded that to qualify as one, three necessary conditions must be met.

Counsel argued that since the 1st respondent corroborated the appellants’ assertion that Emanet was contracted to provide security services, and they were unable to produce their appointment letters at the trial, nor clearly state the terms and conditions of their employment, the finding was clearly erroneous.

The undisputed facts are that at all material times; the respondents worked on the appellants company’s premises as security watchmen. The question of whether an employment relationship is a contract of service or of services is a question of mixed fact and law and is dealt with on a case by case basis. No one single test is decisive, as was emphasised in Argent v. Minister of Social Security (1968) 3 ALL E.R. 208. Halsburys Laws of England, Third Edition, Volume 25, defines contract of service as “one in which a person undertakes to service another and to obey his reasonable orders within the scope of the duty undertaken.” Many factors are therefore taken into account in determining the question, the acid test being that which was advocated in the Ready Mixed Contract case. His Lordship’s most instructive speech at page 513 is as follows:

“A contract of service exists if these three conditions are fulfilled.

(i) The servant agrees that in consideration of a wage or other remuneration, he will provide his own work and skill the performance of some service for his master.

(ii) He agrees, expressly or impliedly that in the performance of that service subject to the other’s control in a sufficient degree to make that other master.

(iii) The other provisions are consistent with its being a contract of service”.

I intend to be guided by this basic test, which was accepted by Lord Widgery, C.J, in Global Plant, Ltd. v. Secretary of State for Health and Social Security (1972) 1Q.B 139, as well as the undoubtedly sound counsel of Cooke J, when dealing with the vexed question of the appropriate test in Construction Training Board v. Labour Force, Ltd., (1973) 3 All E.R. 220. He reasoned that,

“First, that no list of test which has been formulated is exhaustive, and that the weight to be attached to particular criteria varies from case to case. Secondly, although the extent of the control which the alleged employer is entitled to exercise over the work is by no means a decisive criterion of universal application, it is likely in many cases to be a factor of importance”.

On the particular facts of this case, the trial judge was right in concluding that the respondents were employees of the appellant company. True they were unable to produce their appointment letters. Their production might have made their case easier to deal with. But there are other pieces of documentary evidence clearly pointing to the existence of that contractual relationship.

Both respondents were emphatic that they were employed and dismissed by the appellants. For the 1st, the unchallenged evidence shows that he was employed in 1991, at which point in time Emanet had not been established, and dismissed at a time it had ceased to exist. The contract document on which the appellants rely, exhibit I came into effect in October 1992. Emanet may well have entered into an agreement with the appellants to provide the services stated therein, but, there being no evidence from the appellants that there was a mutual agreement between them and the 1st respondent at the inception of Emanet that he transfers to them, it would clearly be in error to hold that he is their employee. Again, he swore that in his employment with the company he was being paid ¢298,000.00. The Exh. A, his payroll for June 1996, headed BILTON BOGOSO GOLD LIMITED WATCHMAN DETAILED PAYROLL JUNE 1996. Clearly corroborate his assertion that he was indeed in their employment. Also the Exh. B, the appellants letter which declared him off site. Finally, the Exh. B, a testimonial issued by the company to him and whose opening paragraph I believe must be reproduced, for it confirms their stated position. It reads:

“This is to certify that MR. BERNARD KOJO MENSAH, was employed and worked as a security Watchman at Bogoso Gold Limited, from JANUARY 1991-JUNE 1996.”

In fairness to the respondents, Mr. Sam Crabbe, the author of the exhibit attempted to explain the circumstances under which he came to write it. He explained that although he did not know the applicant, and he also did not have a clue about his employment history, he was nevertheless moved on humanitarian grounds to write it, after two officials have confirmed he worked as a watchman, with one actually volunteering information that he worked with Emanet, a company on contract with Bogoso. That being the case, why did he write the testimonial in the first place? If he were on compassionate grounds minded to, as he would have us believe, why did he not state the facts as were narrated to him, namely, that he was employed by Emanet to provide the service, but wrote that, he was employed by Bogoso. Frankly, I find it a bit hard to believe that his highly placed security officer, who confesses he did not know the applicant conducted the exercise without calling for his personal file. I find his explanation threadbare. The circumstances under which under the principle of prior self contradiction, a witnesses credibility may not be impeached has been outlined in Asia v. VA Yeduvor and Another (1987-88) 1GLR 175. This court, unanimously speaking, held that:

“...a prior inconsistent statement, if not satisfactorily explained as to the circumstances under which it was made (e.g. duress or a mistake), would go to impeach credit on a particular fact.”

I find Mr. Crabbe’s explanation neither credible nor satisfactory. I find all three conditions set out in the Ready Mixed Concrete case present in the 1st respondent’s case. The appellants remunerated him as he provided the necessary work and skill. They superintended the work and controlled the manner in which it was to be done—where it was to be done, he was at first posted at the bungalows, but subsequently shifted to Chujah. Again, they provided necessary tools for doing it, not to mention that he was subject to the mines safety regulation. The order to the finance department directing them to withhold his salary for the months of May and June 96, until he has returned all of the company’s property in his custody supports the view that he is directly on their payroll and also that they control him. Otherwise, the respondents would surely have dealt directly with Emanet, the independent-contractor who in any event were, surprisingly not produced by the appellants to corroborate their assertion that respondents were indeed their employees.

Were there any other terms of the contract consistent with a contract of service? Yes. The Exh. A shows he obtained meals allowance, while tax and social security contributions were deducted at source, in clear contradistinction to the rule that applies to casual workers under Exh. 1

Much the same inferences and conclusions could be drawn in favour of the 2nd respondent who led similar evidence. He was emphatic that he was in the employment of the respondent during which period he received salary for work done as evidenced by the Exh. D and I. Further that they not only supplied him with working tools, but also controlled the manner in which the work was to be done. The absence of an employment letter notwithstanding, he re-affirmed his stated position under cross-examination as the following would show.

Q. Are you aware that Mr. Anthony is now officer of Emanet Services

A. I can’t tell

Q. Were you employed by Anthony

A. No

Q. Who employed you

A. Mr. Ayalipar of Bilton Bogoso Ltd. He was Chief Security.

Q. Were you given number as an employee

A. Yes

Q. Are you aware that Exhibit A makes no mention of the employee number.

A. It is up to them.

While it is true that the initial burden of proving that they are appellants lay on them, I am satisfied that they discharged that burden satisfactorily. On the contrary, I think the appellants woefully failed to discharge the evidentiary burden which then shifted to them. All they did, contrary to the well known principle in Majo lagbe v. Larbi, fully explained and digested inZabrama v. Segbezi (1991) 2 GLR 221 was to mount the witness box, deny the assertion and point to the Exh I as the evidence of a contract of Services between them and Emanet. That may well be so, but the critical question is this: at the crucial date of the accident in whose employment were the respondents? I cannot imagine that for this well reputed and highly organized mining company, they could not produce one single documentary evidence from Emanet showing that respondents were their employees but who were being assigned to them for security services. Are we being made to believe that Emanet simply dumped them on to the company without formally introducing them? The terms of the 2nd respondents contract is in my view consistent with a contract of service.

Did the appellants’ action amount to a dismissal? Certainly yes. Two arguments were advanced in support of the proposition that what happened cannot amount to a dismissal- what weak arguments. The first, namely that they were declared off site in accordance with Exh. I can be easily dismissed on the grounds that I have already found they are not employees of Emanet and so the terms are inapplicable to them. The second is that the letter was not written or signed by the General Manager or any duly mandated officer of the appellant. The least said about the letter which came from the chief security officer of the company the better.

It was never the company’s position that the Exhibit was written by an unauthorized person. In any case that assertion runs counter to what appellants own senior Investigative Officer deposed to on 30th November 1999 viz that “their appointments” were “terminated” forthwith, the clear meaning being “that Bilton Bogoso Gold Ltd no longer needs their services and therefore should not come to the concession.”

Obviously, their own views that they were clearly negligent is very much more consistent with a dismissal that is, a summary determination of the contract of service. It is difficult to faction why the appellants are running away from this simple truth.

Was the dismissal justified? Again the evidence is overwhelming. The appellants on whom lay the burden of proving lawful justification failed totally to justify their action.

In their statement of defence, they have clearly accused them of negligence. (see paragraphs 6, 8 and 9). The 8 is particularly so serious, I am forced to reproduce it.

“The defendant in further denial of paragraph 9 of the statement of the plaintiffs statement of claim avers that the second plaintiff at the time of the said collision was not at this designated duty post but was sleeping elsewhere”.

In spite of these serious allegations, not once were these acts of gross negligence suggested to them while they were in the witness box to enable them deny or accept them. I am not unmindful of this courts decision in Nartey v. Botwe (1989-90) 1 GLR 479 which lays out the exceptions to the rule on failure to cross-examine. The appellants do not fall under any of the exceptions and their failure to put their case across through cross-examination cannot be justified in any way in the circumstances. Worse still, they failed to lead a shred of credible evidence in proof (legal proof) of their allegation that the accident occurred as a result of the respondent’s negligence and in circumstances that justify their instant dismissal. In any case the charges of negligence is clearly inconsistent with the Exhs. C and G, which described the respondents in glowing terms—hardworking and obedient workmen.

The respondents may well have been watchmen, but clearly theirs was a contract indefinite as to duration. In the absence of agreement or custom (that was not the appellants case) their contracts are terminable by reasonable notice, as is the positions generally for all contracts of service. Lord Alverstone CJ inRe African Association, Ltd and Aden, 1910 1KB 396 summed up the law as follows:

“The general principle applicable to contract of service is that, in the absence of misconduct or of grounds specified in the contract, the engagement can only be terminated after reasonable notice”.

We think a month’s notice reasonable for a night watchman. This is because what constitutes reasonable notice is a question determinable on the facts of each given case. In one case, twelve months was reasonable. He was a chief engineer of an ocean liner (Savage v. British India Steam Navigation Co Ltd 1930, 46T LR 294), while in the case of a hairdresser assistant, one week was held to be reasonable (Mambens v. Leon) 1919 KB 208. There is everything to show from the self evident Exh B that it was a dismissal retrospective at that, not a termination on reasonable notice. The respondents are therefore entitled to damages. At this rehearing however, we do agree that the trial judge failed to state the factors which he relied on in arriving at the period of 15 months this makes the damages awarded arbitrary. We will reduce it to 5 months on the basis that probabilities of his obtaining employment elsewhere as a security/watchman is not as low as if they were not in possession of such favourable testimonials and they had happened to mining Engineers. They have not proved that they are entitled to any other benefit. The measure of damages would therefore be assessed at ¢298000.00 x 6 months (1 month reasonable + 5 months period within which they could secure alternative employment. Thus works out at ¢1,788000.00 with costs assessed at ¢2,00m in favour of each respondent.

SGD

G. T. WOOD (MRS.)

JUSTICE OF APPEAL

OMARI-SASU, JA

I agree.

SGD

K. OMARI-SASU

JUSTICE OF APPEAL

OWUSU, JA

I also agree.

SGD

R. C. OWUSU (MISS)

JUSTICE OF APPEAL