BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176

DIVISION: IN THE SUPREME COURT

DATE: 25TH FEBRUARY, 1963

BEFORE: SARKODEE-ADOO, CRABBE AND AKUFO-ADDO JJ.S.C

 

CASES REFERRED TO

(1) Gilbert v. Endean (1878) 9 Ch.D. 259; 39 L.T. 404, C.A.

(2) Bradshaw v. Widdrington [1902] 2 Ch. 430; 71 L.J.Ch. 627; 86 L.T. 726, C.A.

(3) Abowaba v. Adeshina (1946) 12 W.A.C.A. 18

(4) Huyton-with-Roby U.D.C. v. Hunter [1955] 1 W.L.R. 603; [1955] 2 All E.R. 398; 119 J.P. 407, C.A.

NATURE OF PROCEEDINGS

APPEAL against the judgment of Ollennu J. (as he then was) in an action to recover gratuity after 25 years’ service with a bank.

COUNSEL

Victor Owusu for the defendants-appellants.

No appearance for the plaintiff-respondent.

JUDGMENT OF SARKODEE-ADOO J.S.C.

The two main questions raised in this appeal are, firstly, whether or not the learned trial judge erred in law in rejecting the secondary evidence of the defendants in the course of his judgment, such evidence having been admitted without objection whereas similar evidence of the plaintiff was considered and the judgment for the plaintiff based himself regarding the onus of proof placed on the defendants in respect thereon; and secondly, whether or not the learned trial judge misdirected of the additional or separate issue raised by them.

The trial was before Ollennu J. as he then was, and this appeal is against his judgment delivered on the 20th November, 1961, in the High Court at Accra.

The plaintiff’s claim was for the sum of £G600 being six months’ salary due to him as gratuity for services rendered as an employee of the of defendants. The particulars of claim as amended at the trial were as follows:

“(1) The plaintiff was employed on the clerical staff of the defendants for 25 years until his retirement in

August, 1960.

(2) By an agreement between the defendant bank and its employees in 1947 and as reviewed in 1948 it was agreed that an employee on the clerical staff wihing to retire after 20 years’ service was to be given a gratuity equal to six months’ salary.

(3) Plaintiff at the time of his retirement had served more than 20 years and was receiving a salary of

£G100 per month.”

The defendants by way of defence to the plaintiffs particulars of claim averred that although the plaintiff entered their service as a clerical officer, at the time he left in 1960, he had attained acting managerial position; they denied that the plaintiff retired from their service but said he rather left unceremoniously and joined the Ghana Commercial Bank; that an agreement was reached in 1947 with their employees that the gratuity to be given to a clerical officer upon his retirement is the equivalent of three months’ salary; and that in 1948 it was further agreed with staff representatives by way of amendment that six months’ salary was to be paid to a clerical officer retiring with their approval or permission. The [p.178] of [1963] 1 GLR 176 defendants therefore denied that the plaintiff was entitled to a gratuity of £G600 or to any gratuity at all since he did not retire with their approval or permission but rather left their service unceremoniously to join the Ghana Commercial Bank.

By consent the issue set down for trial was, “Whether the plaintiff was entitled to retire after twenty years’ service and receive gratuity equal to six months’ salary or any gratuity at all.” There was no dispute as to the terms of the agreement of 1947 (exhibit A) which provided, inter alia, in the following clause:

“Retirement Allowances—Clerical Staff.

Three months’ salary to be paid on retirement after a minimum of twenty years’ service; earlier retirement through ill-health to receive special consideration.”

That this clause was amended in 1948 there is no doubt, but what arose at the trial was the full import of the amendment, particularly with reference to the condition relating to the “defendants’ approval or permission” averred in the statement of defence.

On this matter the plaintiff in his evidence-in-chief said:

“The said clause was amended in 1948, the amendment was communicated to me, it was in writing. I have not got a copy of it. We have applied to the defendant bank for a copy but they say they have not got it. By the said amendment the three months’ salary was changed to six months’ salary upon retirement.” Under cross-examination he said:

“It is not correct that the agreement of 1947 was varied to the extent that a person who has done twenty years’ service could retire at the age of 55, but if he has not attained the age of 55 then he can only do with the permission of the bank. I was 46 years old at the time I left the service of the bank.” Mr. Douglas Herbert Medcalf, the executive director of the defendants in his evidence-in-chief, said: “The terms of exhibit A were reviewed on several occasions the first was in 1948; the gratuity on retirement was increased to six months’ salary, and the further words ‘with the bank’s approval were included. A record of it would have been kept.”

Under cross-examination, he said:

“It is not correct that the only change made as to retirement as appears in exhibit A is to change three months to six months. I can’t find all my records for 1948.”

Re-examined, he said:

“We have made efforts to find out something about this amendment I have spoken of but I have not succeeded in getting copies of the correspondence between myself and the Union on the subject.” It is significant to observe that the secondary or oral evidence adduced by the parties on this particular matter was admitted without objection.

[p.179] of [1963] 1 GLR 176

The learned trial judge resolved the matter in favour of the plaintiff whose version of the amendment of 1948 he accepted and entered judgment in the plaintiff’s favour for his claim with costs in the terms following:

“The plaintiff’s claim is for £G600 representing six months’ salary payable to him by the defendant bank as gratuity upon his retirement from the service of the bank after 25 years’ service. He based his said claim upon an amendment to a memorandum of agreement of 1947, between the bank and representatives of the Bank Employees’ Union. That original agreement of 1947 is exhibit A. It provided that ‘Three months’ salary was to be paid on retirement after a minimum of twenty years’ service; earlier retirement through ill-health to receive special consideration.”

Both parties agreed that the provision for payment of gratuity as set out in exhibit A was amended in 1948, and that the said amendment provided for payment of six months’ salary as gratuity instead of three months’ salary. But whilst the plaintiff says that the amendment was only in respect of the quantum of the amount of gratuity payable and nothing more, the bank on the other hand say that the said amendment further provided that the retirement could only be with the permission of the bank. The only difference therefore between the plaintiff’s version and the defendants’ version is the allegation of the defendants that leave of the bank is required to qualify an employee who wishes to leave the employment of the bank after twenty years’ service to receive the said gratuity.

It means that the defendants are alleging precisely the same facts which the plaintiff alleges and in addition, they are alleging leave of the bank as condition for retirement. In those circumstances the onus lies upon the defendants to establish that additional fact otherwise they would fail. The law is that a person who would lose if no evidence or no further evidence is led, is the person upon whom the onus lies to prove the facts he alleges.

Now the defendants alleged that the amendment of 1948 upon which they rely was made in writing; and the evidence is that if it is in writing, then a copy of it must be with the bank and a copy with the union. The bank has not produced their copy of that amendment, they say they could not find it, and they have not called the secretary of the Employees’ Union to produce the union’s copy of it. No reason has been given for this failure to produce the union’s copy.

The witnesses called for the defence created the impression that it is an unwritten law regulating retirement from the service of the bank that the minimum age of retirement is 55 years except in the case of ill-health or with the leave of the bank, but that up to 1947 no gratuity of any sort was payable no matter what the length of service was, and that the purpose of the agreement of 1947, amended by that of 1948, was to fix firstly the minimum length of service that an employee must do to enable him to retire at 55 or thereafter, and secondly to fix the quantum of gratuity payable upon such retirement. If that were the case, one would not expect the minimum age for retirement to be expressly stated in the agreement, nor would one expect the phrase ‘with the leave of the bank’ to appear therein, because it would be implied. But that is not the case which was put up by the defendants. They relied upon a written agreement, and the law requires that they must prove that allegation by proper evidence. [p.180] of [1963] 1 GLR 176

The defendants have not led sufficient evidence which warrants the reception of secondary evidence of the contents of the alleged document, and I must therefore disregard any such evidence which appears on the record.

I accept the plaintiff’s version of the amendment, and since his version is identical with part of the defendants’ version, and since the defence has been unable to satisfy the court of that part of their version denied by the plaintiff it means that what the plaintiff alleged has not been refuted and the plaintiff is therefore entitled to judgment.

There will be judgment for the plaintiff against the defendants for £G600 gratuity payable to him by the bank upon his retirement after 25 years’ service.

The plaintiff will have his costs fixed at 60 guineas inclusive.”

In support of this appeal, the following grounds were argued:

“(1) The learned judge was wrong in law in rejecting the secondary evidence tendered on behalf of the defendant bank, the same not having been objected to by the plaintiff and when adequate and good reasons have been given for the non-production of primary evidence.

(2) The learned judge was wrong in law in accepting secondary evidence adduced by plaintiff concerning the agreement of 1948 when no reason had been given for its non-production and when the versions given by the plaintiff and defendants differed in a material particular.

(3) That the defendants led sufficient evidence to warrant the reception of secondary evidence.

(4) That the learned trial judge misdirected himself as to the onus of proof which he erroneously placed on the defendants.

(5) That the judgment is against the weight of evidence.”

In the present case, upon perusal of the record of the proceedings and giving full weight to the materials before the learned trial judge with such other materials as he may have decided to admit at the trial, no conclusion is possible except that the learned trial judge in the course of his judgment erred in law by rejecting the secondary evidence adduced by the defendant bank and by his failure to consider such evidence.

As already indicated, no objection was taken at the trial to the secondary evidence led by the defendant bank and none was taken before this court, the respondent not having appeared nor having been represented by counsel. And even if there had been appearance before this court, an objection would not have been entertained as it is too well established now to be shaken that if inadmissible evidence has been received without objection, a party may, by his conduct at the trial, be precluded from objecting thereafter to such evidence: see Phipson on Evidence (9th ed.), chapter 50 at p. 711; Gilbert v. Endean,1 Bradshaw v. Widdrington,2 and Abowaba v. Adeshina.3

[p.181] of [1963] 1 GLR 176

Learned counsel’s argument in support of the ground, “that the learned trial judge misdirected himself as to the onus of proof which he erroneously placed on the defendants,” was further urged by his submission that upon the additional or separate issue pleaded and proved by the defendants that the 1948 amendment had the further words “with the bank’s approval” included, the circumstances of the issue raised and the state of the evidence placed the ultimate burden on the plaintiff to prove the negative, that the approval of the bank was not a condition as contended.

The case of Huyton-with-Roby U.D.C. v. Hunter4 was cited as an authority for this principle of law upon which learned counsel relied for his submission.

A careful study of that case clearly shows that the plaintiff there undertook the burden of proving a negative averment which was an essential part of his case and being the party on whom the legal burden rested he must discharge it.

In the instant case, the defendants accepted substantially the plaintiff’s case but alleged an additional or separate issue. It therefore became the duty of the defendants to prove the said issue because the onus lay on them as a rule of law to prove all the facts pleaded.

In Powell’s Principles and Practice of the Law of Evidence (10th ed.) at p. 135-136 the learned author in discussing the burden of proof, inter alia, states:

“As a rule, the onus of proof lies upon the party who has in his pleading maintained the affirmative of the issue; for a negative is usually incapable of proof. The affirmative is generally, but not necessarily, maintained by the party who first raises the issue . . . But the burden frequently shifts, as the case proceeds, from the person on whom it rested at first to his opponent. This occurs whenever a prima facie case has been established on any issue of fact or whenever a rebuttable presumption of law has arisen. . . . In a civil case, the question on whom does the burden of proof rest? depends upon the pleadings. At the beginning of the case the test is this: Which party would be unsuccessful if no evidence were given on either side? (Amos v. Huges, 1 M. & Rob. 464; Cockle 125). And if at any stage of the action a question arises as to the party on whom should rest the burden of proving any particular allegation, the test is, Which party would fail if the allegation in question were struck out of the pleading? (Mills v. Barber, 1 M. & W. 427).

The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form.”

Applying these principles to the additional or separate issue pleaded by the defendants, I have no doubt in my mind that the onus was rightly placed on the defendants.

In all the circumstances, however, this court cannot conjecture what the result might have been if the learned trial judge had considered the whole of the evidence admitted at the trial.

[p.182] of [1963] 1 GLR 176

In the light of the foregoing, I am of the opinion that the trial was unsatisfactory and therefore the judgment cannot stand. I would allow the appeal and set aside the judgment together with the order as to costs; and remit the case to the court below for re-hearing.

JUDGMENT OF CRABBE J.S.C.

I agree and do not wish to add anything.

JUDGEMENT OF AKUFO-ADDO J.S.C.

I also agree.