APPIAH AND OTHERS v. AKERS TRADING COMPANY [1972] 1 GLR 28
HIGH COURT, ACCRA
Date: 30 JULY 1971
BEFORE: ABBAN J.
CASES REFERRED TO
(1) Dam v. Addo [1962] 2 GLR 200, S.C.
(2) Malm v. Lutterodt [1963] 1 GLR 1, S.C.
(3) Dove v. Ayila, High Court, 13 May 1971, unreported.
(4) Hiscox v. Batchellor (1867) 15 L.T. 543, N.P.
(5) Payzu Ltd. v. Hannaford [1918] 2 K.B. 348; [1918-19] All E.R. Rep. 961; 87 L.J.K.B. 1017; 119
L.T. 282; 82 J.P. 216; 34 T.L.R. 442, D.C.
(6) Re African Association Ltd. and Allen [1910] 1 K.B.396; 79 L.J.K.B. 259; 102 L.T. 129; 26 T.L.R.
234, D.C.
(7) Savage v. British India Steam Navigation Co., Ltd. (1930) 46 T.L.R. 294.
(8) Morgan v. Parkinson Howard Ltd. [1961] GLR 68.
NATURE OF PROCEEDINGS
ACTION for damages for wrongful dismissal. The facts are fully set out in the judgment.
COUNSEL
J. F. S. Hanson for the plaintiffs.
Yeboa Amoa for Miss Tachie-Menson for the defendants.
[p.30] of [1972] 1 GLR 28
JUDGMENT OF ABBAN J.
The plaintiffs in this action claim from the defendants various sums of money as damages for wrongful dismissal. The endorsement on the writ of summons reads as follows:
“The first, second and third plaintiffs jointly claim from the defendants the sum of seven thousand two hundred and seventy new cedis eighty-eight new pesewas (N›7,270.88) for wrongful dismissal from the defendants’ employment; being as to N›2,590.61 each for the first and second plaintiffs, and N›2,090.27 for the third plaintiff, these amounts representing general and special damages.”
In his evidence the first plaintiff stated that he was originally employed by the State Fishing Corporation on 20 February 1963 as a refrigerator mechanic. He was put on one of the fishing vessels of the corporation, called the M.T.A. Ada. In February 1969 the defendants took over the management of about seven fishing vessels of the State Fishing Corporation including the M.T.A. Ada as a result of an agreement entered into by the defendants with the Government of Ghana. The plaintiffs and the other members of the crew, who were then manning the M.T.A. Ada, came under the direct control of the defendants in consequence of this change of management. The first plaintiff further averred that the taking over of the said vessel, the M.T.A. Ada, by the defendants did not affect his conditions of service. He continued to receive the same monthly pay or wages as if there had been no change of management. However, in July 1969, the M.T.A. Ada went to sea with the plaintiffs and after its normal fishing rounds, the vessel made an emergency call at the port of Dakar in order to repair the radar of the vessel and also to send three of the members of the crew, who needed medical attention, to the hospital. According to the first plaintiff, the vessel docked at the harbour at about midnight on 11 July 1969 and those sick persons on board were immediately sent to the hospital. They were treated and brought back to the vessel. But the next morning, 12 July 1969 at about 11.30 a.m., a doctor came on board to visit the sick men. After the doctor had left the vessel the first plaintiff approached the captain for permission to go ashore “to stretch his legs” by walking around the harbour area. The captain granted him the said permission. So the first plaintiff went off the vessel to the shore. He stated that apart from himself, the second and the third plaintiffs and two other persons, namely, Forson and Otoo, were also granted permission by the captain to go ashore. The first plaintiff said after he had roamed for some few minutes, he started to walk back to the vessel, but when he got to a turning along the harbour street, to his surprise, he found that the
vessel had left the habour and was in mid-stream,. He then noticed that the second and third plaintiffs as well as the said Forson and Otoo had also been left behind. Unsuccessful attempts were made in the pilot’s office to contact the vessel; they could not also get in touch with the Ghana Embassy in Dakar as the office had then closed for the day. The shipping agents of the defendants in Dakar gave accommodation to the plaintiffs and the other two persons. They spent about one week in Dakar before [p.31] of [1972] 1 GLR 28 they were repatriated to Ghana by air. The first plaintiff said on the day after their arrival in Ghana, that was 22 July 1969, they went to the office of the defendants. In the office letters of dismissal were handed over to them. The defendants never asked the plaintiffs to explain their conduct. No opportunity was given to them to explain why they were not on the vessels at the time the vessel left the port of Dakar. The evidence of the second plaintiff was mainly a repetition of that of the first plaintiff. In his evidence the second plaintiff stated that he also obtained permission from the captain before he went ashore. The second plaintiff obtained his said permission just about the time the first plaintiff obtained his. The plaintiffs seemed to have approached the captain individually for the permission and not in a group. The third plaintiff did not appear in court to prosecute his claim and the same was struck out at the request of his counsel.
The defendants’ representative, who gave evidence for and on behalf of the defendants, confirmed that the vessel, the M.T.A. Ada, was one of the vessels whose management the defendants took over from the State Fishing Corporation under an agreement which he tendered as exhibit 2. This witness said the dismissal of the plaintiff was not wrongful because they wilfully disobeyed the orders of the captain and went ashore without permission. He tendered exhibit 3, extracts from the log book of the vessel, the M.T.A. Ada, to prove that the plaintiffs left the vessel without permission. The representative of the defendants further told the court that since the defendants were to operate those fishing vessels profitably, the defendants had a discretion to dispense with the services of any of the members of the crew at any time and after a trip at sea. He contended that no conditions of service were agreed upon between the crew and the defendants, and that the circular letter, exhibit 1, which was posted on the notice board on the vessel, was the only document which dealt, somehow, with the plaintiffs’ conditions of service. The defendants called their chief steward, the defendants’ first witness, who testified that at the time the vessel made the emergency call at the port of Dakar, he was in charge of the kitchen in that vessel. He said when the vessel arrived at the harbour the captain called him and told him the defendants’ first witness, that no one should leave the vessel. But when the boat left Dakar, on the afternoon of 12 July 1969, he discovered that one of his mess boys, called Otoo, who was directly working under him was missing. It is apparent from the pleadings and from the evidence, that the plaintiffs were dismissed summarily because they went ashore against the orders of the captain. The first question which must, therefore, be answered is whether the plaintiffs asked permission from the captain to go ashore and whether the captain granted the plaintiffs the permission. It must be noted that Mr. Innvaer, the defendants’ representative, was not on the vessel at the time the incident took place. In fact at that time he was not in the service of the defendant at all. His evidence therefore consisted, mainly, of what he could gather from the documents, exhibits 2 and 3, [p.32] of [1972] 1 GLR 28 and also of his own knowledge about the generally accepted practice of seamanship. Under cross-examination he said, “I arrived in Ghana in October 1969. I was then the office manager and chief accountant of the defendant company in Ghana. I joined the defendant company when I arrived in Ghana.” Consequently, apart from exhibit 3, the log book, I do not think Mr. Innvaer’s evidence should carry any weight. The evidence of the chief steward, the defendants’ first witness, is also of very little assistance. He, the defendants’ first witness, said as a sectional head, when the vessel docked at the Dakar harbour, he was called by the captain who told him that nobody should leave the vessel. Whether that is true or not, the evidence does not show that other sectional heads were also called and given the same orders. The plaintiffs were not working under the defendants’ first witness and so the plaintiffs’ movements on the vessel could not be controlled by the defendants’ first witness, and there is no evidence that the defendants’ first witness passed on these orders of the captain to the plaintiffs. At any rate, whether or not the captain gave general orders that no one should leave the vessel, the fact still remains that the captain, as the person in charge of the vessel, had every right to entertain applications to go ashore from any member of the crew, and he could in his discretion grant such applications. The defendants’ first witness admitted that he was never with the captain for all the time the vessel was at the harbour and, naturally, he cannot profess to know whether or not the plaintiffs were granted permission by the captain to go ashore.
It appears that exhibit 3 is the only important piece of evidence offered by the defendants. However, I attach very little weight to its contents, especially because the recording was not made by the captain himself. The defendants’ representative made this quite clear in his evidence under cross-examination. He said, “The exhibit 3 is an extract from the log book not made by the captain but by the senior officer on the watch at that particular time.” The evidence of the captain himself would have gone a long way in this matter. In the particular circumstance of this case, the captain is the only person who could, on behalf of the defendants, have given an accurate account concerning this question of permission. Unfortunately, for reasons unknown to the court, the defendants did not call the captain but sought to rely on statements alleged to have been recorded by an officer on the vessel and which officer was also not called to testify.
It is trite learning that facts must in general be proved by the testimony of the witnesses who actually
perceived them, and not by the reported statements of unsworn persons. Learned counsel for the defendants submitted that in view of certain conflicts in the evidence of the plaintiffs, the court should hold that the permission was not granted to the plaintiffs to go ashore. I have examined the evidence of the plaintiffs carefully, and I am of the view that there are no material conflicts in that evidence, and considering the evidence as a whole, I believe that the plaintiffs sought permission from the captain before they went ashore and that the captain did in fact grant them the said permission. The defendants acted hastily [p.33] of [1972] 1 GLR 28 in dismissing the plaintiffs, and without first making any inquiries. The evidence shows that the defendants were not even prepared to hear the plaintiff’s side of the story and they acted without waiting for a full report from the captain. In paragraph (2) of their statement of defence the defendants averred that, (the emphasis is mine) “The plaintiffs were employed on a `trip to trip’ basis and as a term under the contract of employment the defendant company could dismiss them summarily at the end of a trip if the company was not satisfied with either their work and/or conduct.” It seems to me that exhibit 1 clearly supports this plea of the defendants just referred to and apart from exhibit 1 there is no other reliable evidence, oral or documentary, that deals with the plaintiffs’ conditions of service. I therefore accept the contention of the defendants that exhibit 1, the contents of which the plaintiffs admitted to have had full knowledge, embodied all the plaintiffs’ conditions of service. In the circumstances, if the defendants’ interpretation of exhibit 1, as appearing in paragraph (2) of their statement of defence quoted above is accepted, it will mean that the defendants can only terminate the plaintiffs’ contract summarily, on grounds of inefficiency or misconduct at the end of a trip and not during a voyage when the plaintiffs were still in a foreign country. Thus, for the purpose of argument, if it is assumed that the plaintiffs were guilty of some misconduct or of wilful disobedience, the defendants could not exercise their right of summary dismissal while the plaintiffs were still at sea or in a foreign country. From the evidence and from the dates of exhibits A and B, (the letters of dismissal) the plaintiffs were in fact dismissed summarily at a time when the trip or the voyage had not been completed. Exhibits A and B show that the effective date of the plaintiffs’ dismissal was 12 July 1969. Paragraph (2) of these exhibits stated that “you are hereby summarily dismissed with effect from 12 July 1969.” It will be recalled that on 12 July 1969 the vessel left Dakar for Ghana and it took some days before it arrived at Tema harbour. In other words, at the time the defendants summarily dismissed the plaintiffs, the trip had not come to an end. That particular trip came to an end on the day the vessel docked at Tema harbour. So that even if the plaintiffs had committed any act of misconduct, then according to the defendants’ own interpretation of exhibit 1, the plaintiffs could only have been dismissed on the day the vessel arrived at Tema Harbour or on any other date thereafter, but certainly not before. I therefore hold that even on the plaintiffs’ own showing, they wrongfully and unlawfully exercised their right of summary dismissal.
Learned counsel for the defendants further contended that the plaintiffs were employed by the State
Fishing Corporation and not by the defendants. Learned counsel submitted that if this contention is
accepted then the plaintiffs have sued the wrong person because there was no evidence that the defendants were sued as the agents or representatives of the State Fishing Corporation, and for that reason the action is misconceived. In the first place, this defence was not pleaded and it was therefore not put in issue. In the circumstance, I will not countenance the [p.34] of [1972] 1 GLR 28
submission. A party is bound by his pleadings and cannot at the trial set up a case different from that
which he has pleaded. See Dam v. Addo [1962] 2 GLR 200, S.C. and Malm v. Lutterodt [1963] 1 GLR 1.In the later case, Azu Crabbe J.S.C. reading the judgment of the court at pp. 14-15 said:
“To my mind to raise an issue of abandonment is to allege estoppel by conduct which was not pleaded by the plaintiff and in support of which he led no evidence whatsoever: see Young v. Star Omnibus Co., Ltd. per Farwell, J. ((1902) 86 L.T. 41 at p.43). In my view, therefore, the learned trial judge erred in basing his judgment on a point which was not a triable issue on the pleadings: see Oloto v. Williams ((1944) 10 W.A.C.A. 23). I venture to say, with all respect, that the pronouncement on abandonment is of no effect because the court went beyond the rights which were really in issue between the parties. In Robinson v. Duleep Singh, James L.J. said (1879) 11 Ch.D. 798 at p.813): `… if the court had gone beyond the rights which were properly in issue between the parties the decree of the court would be absolutely null and void’.”Reference may also be made to the case of Dove v. Ayila, High Court, 13 May 1971, unreported. Having found that the plaintiffs were granted permission to go ashore it follows that there was no legal justification for the defendants to act in that high-handed manner. As I have already held, even if the conduct of the plaintiffs amounted to misconduct, it was still wrongful on the part of the defendants to dismiss the plaintiffs summarily while they were supposed to be at sea or at a foreign port. The fact that the defendants had a right to dismiss any of the members of the crew summarily did not mean that they, the defendants, were also entitled to exercise that lawful right in a wrongful manner. I therefore hold that the defendants are liable to the plaintiffs in damages for unlawful dismissal. I will now consider the question of damages. So far as the general damages are concerned the quantum depends on the length of notice to which the plaintiffs were entitled before their services could lawfully be terminated by the plaintiffs. Exhibit 1 (the circular letter) is silent as to the notice which had to be given to terminate the services of the plaintiffs lawfully. The only indication as to the termination of the plaintiffs’ services, apart from summary dismissal, is paragraph 6 of exhibit 1. It says, “The manning
position will be reviewed at the end of each trip.” I take it that at the end of each trip the defendants could terminate the services of any of the members of the crew either on grounds of misconduct, inefficiency or redundancy. But it does seem to me that where the services of the plaintiffs were to be terminated on grounds other than that of misconduct, and since exhibit 1 is silent as to notice which should be given in those circumstances, a term must be implied that reasonable notice would be given: See Hiscox v. Batchellor (1867) 15 L.T. 543; Payzu Ltd. v. Hannaford [1918] 2 K.B. 348; Re African Association Ltd. and Allen (1910) 1 K.B. 396 and Savage v. British India Steam Navigation Co., Ltd. (1930) 46 T.L.R. [p.35] of [1972] 1 GLR 28 294. The question then is, what notice was necessary or reasonable in this particular case? From the evidence, the plaintiffs were paid monthly and in this respect paragraph 33 (2) of the Labour Decree, 1967 (NLCD 157), is relevant. The paragraph provides that employees in the position of the plaintiffs are entitled to fourteen days’ notice. It reads as follows: “Where the agreement is to pay remuneration at a monthly rate it shall be deemed to be a contract from month to month determinable at any time by either party by giving to the other party at least fourteen days’ notice to expire not earlier than the last day of the current month.” I am therefore of the view that the plaintiffs were entitled to be given fourteen days’ notice whenever the defendants intended to terminate their services on grounds other than that of misconduct. Consequently the plaintiffs are entitled to be paid, as general damages, an amount equal to their wages for a fourteen-day period, the length of time which would have constituted a reasonable period of notice in the circumstances. See Morgan v. Parkinson Howard Ltd. [1961] GLR 68, where it was held that the quantum of damages for wrongful dismissal is the amount which the plaintiff should have been paid in lieu of notice of termination of his employment. Ollennu J. (as he then was) in that case at p. 70 said: “In the case of the first and second plaintiffs who are proved to have been in the employment of the company for a period exceeding three years, section 45 (4) of the Labour Ordinance (Cap 89 (1951 Rev.)), provides that they are entitled to one month’s notice, and under section 46 of the Ordinance they would have been entitled to one month’s wages in lieu of notice. Therefore if their dismissal is wrongful the amount of damages they would have been entitled in law to recover would be one month’s wages which should have been paid to them in lieu of notice: see Hartley v. Harman ((1840) 11 Ad. and E. 798). ”The plaintiffs were dismissed on 12 July 1969. By that date, the defendants were owing the plaintiffs arrears of wages for one-and-a-half months, that is, wages for June and for a period of about twelve days in July. Furthermore, the plaintiffs had then not gone on their annual leave of 28 days. According to the evidence, for the annual leave, the plaintiffs were entitled to leave allowance of N¢14.00 and I think having worked for the defendants for over six months in 1969, they were entitled to be paid half of the N¢14.00 as leave allowance, in addition to fourteen days’ pay, in lieu of the earned annual leave of the six months. The plaintiffs contended that they were also entitled to severance pay. The evidence in support of this claim, I consider to be unreliable and the claim cannot therefore be accepted. The plaintiffs further claimed that for some time before 1969, they had not gone on leave. Hitherto, the evidence in respect of
that claim is so vague that I am inclined to reject it. However, the plaintiffs ought to be paid N¢0.17
commission on every ton of fish caught by the defendants. By 12 July 1971, 535 tons of fish had been
caught and so [p.36] of [1972] 1 GLR 28 the amount of commission that was due to each of the plaintiffs at that time was N¢90.95. I should remark that the defendants did not seriously dispute these entitlements. In fact the defendants seemed to have admitted the plaintiffs’ right to these benefits. But they contended, as appearing in paragraph (6) of the statement of defence, that the plaintiffs having been repatriated from Dakar to Ghana by air at the expense of defendants’, the expenses involved in the said repatriation had been deducted from the plaintiffs’ said entitlements. Since this defence cannot avail the defendants, in view of my findings, the first plaintiff will be entitled to one-and-half months’ pay of N¢117.49 plus another N¢78.33 made up of fourteen days’ leave allowance and fourteen days’ pay in lieu of leave. In addition, the first plaintiff must recover N¢90.95 being the commission on the 535 tons of fish caught by the defendants. He will also be entitled to N¢39.16 being wages for fourteen days’ in lieu of notice. Altogether the first plaintiff must recover the sum of N¢325.93. Similarly, the second plaintiff is entitled to recover his one-and-a-half-months’ salary of N¢107.83 together with N¢71.89 being his leave allowance and fourteen days’ pay in lieu of leave. He will recover a further N¢90.95, which was the commission on the 535 tons of fish; and, lastly, he is entitled to N¢35.94 (wages for fourteen days) in lieu of notice. In all the second plaintiff should recover N¢306.61. Accordingly, judgment is entered against the defendants and in favour (a) of the first plaintiff for N¢325.93 and (b) of the second plaintiff for the sum of N¢306.61. Each of the plaintiffs is awarded costs fixed at N¢200.00 inclusive.
DECISION
Judgment for the plaintiffs.
J. D.
