WEST AFRICAN EXPRESS (GHANA) LTD. v. CRAIG [1963] 2 GLR 231

DIVISION: IN THE SUPREME COURT

DATE: 2ND JULY, 1963

BEFORE: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from a decision of Apaloo J. (as he then was) unreported, delivered in the High Court, Kumasi, wherein he gave judgment in favour of the plaintiff who brought an action against the defendant company claiming the sum of £G889 8s. 3d. as the amount due to her for services rendered under a contract of employment.

COUNSEL

W. Ofori-Atta for the appellants.

Puplampu for the respondent.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

The appeal is from a decision of Apaloo J. delivered in the High Court, Kumasi, whereby the plaintiff-respondent’s claim for the sum of £G889 8s. 3d. as amount due for services rendered under a contract of employment by the appellant company was upheld. The parties are hereinafter referred to simply as the plaintiff and the company respectively.

[p.232] of [1963] 2 GLR 231

The learned trial judge in his usual graphic style has outlined the material facts and I do not think I can do better than adopt his statement of the facts, as follows:

“The plaintiff a married woman appearing to have considerable knowledge of running travel agencies was employed some time in 1957 by the defendant-company as manageress of their agency in Kumasi. It seems she was to do pioneering work, and there is no properly documented contract. She herself described the relationship as an association and in the nature of things it was a loose one. It was however agreed that she was to have for her services 50 per cent. of the commission income earned by the establishment after deduction of expenses. It seems that although she put in a lot of work, as can be gleaned from the pile of correspondence in evidence, by October 1959 she had received nothing by way of remuneration. While in a state of dissatisfaction with her service conditions, she received an offer of employment from another travel agency. By a letter dated the 22nd October, 1959, addressed to the Accra manager (exhibit A) she communicated the fact of this offer of employment from another company and threatened to terminate her association with the defendant-company unless by the 14th November, 1959, the company shall have offered her a new and more satisfactory agreement. There was no reply to that letter. Meanwhile, in the Accra office of the company, Mr. Indge, the managing director, proceeded on leave to England, whereupon Mr Nasar acted in his place. On the 9th November, 1959, the plaintiff addressed another letter to Mr. Nasar wherein she referred to her letter of the 22nd October and warned that if by the 14th November she does not receive a letter from the company offering to retain her services on better and more satisfactory terms, she would accept the offer of the other agency. It seems plain from subsequent events that she made no empty threat, for she closed the office on the morning of the 14th November, 1959.

About 11.30 that morning her husband (who gave evidence as her only witness at the trial) spoke on the phone to Malek the only one of the three directors of the company who remained in Accra while the others were away on leave. He explained to him the background of his wife’s work and her dissatisfaction with the terms of service, and notified him that on the following Monday, the 16th November, (the 14th being a Saturday) the Kumasi office would be closed for certain. On the Monday morning Mr. Nasar, the acting managing director, spoke on the phone to the plaintiff and asked her to keep the office open till his arrival in Kumasi, and followed up by arriving on the 18th November, 1959. After a considerable discussion by the plaintiff and her husband with Mr. Nasar, an agreement was reached which was embodied in a memorandum signed by Mr. Nasar on behalf of the company and the plaintiff. This was tendered in evidence as exhibit C. On the basis of this agreement and in the belief that it was a valid contract, the plaintiff continued to work for the company, and the present claim is based on that agreement. The case for the company is that Mr. Nasar had no authority to enter into the agreement.”

The learned judge turned at this stage to examine and consider the circumstances, including the undoubted fact that Mr. Nasar was the acting managing director at the material time, although his substantive office was that of manager only of the Accra branch, and also the probabilities of the case. In the end he resolved the issue whether or not Mr. Nasar had any [p.233] of [1963] 2 GLR 231 authority, in favour of the plaintiff and proceeded to hold that, “exhibit C is binding on the defendant-company and is enforceable against.”

That decision and the consequential award of the amount claimed as due under the agreement, are challenged on two grounds of appeal:

“(a) that the judgment was manifestly against the weight of the evidence; and (b) that the learned judge was wrong in holding that the alleged memorandum of agreement dated the 19th November, 1959, was binding on the defendant-company, when it was abundantly clear that the plaintiff knew that Mr. Nasar who purported to enter into the contract on behalf of the company had no authority (either real or apparent) to enter into such agreement.”

Learned counsel argued the two grounds together and posed two questions “(i) what was Nasar’s position; and (ii) did the defendant-company ever hold out Nasar as agent to make the agreement?” He answered the first question by reference to the evidence on record from both the plaintiff and the company’s representative at the trial that Nasar’s substantive appointment was that of the manager of the Accra Office; with regard to the second question, he contended that it cannot be answered in the affirmative because of the answer to the first question, namely, that Mr. Nasar was only the Accra branch manager and no express authority was given to him by the company to negotiate the contract embodied in exhibit C.

It seems to me, however, that this argument of learned counsel stems from a disregard consciously or unconsciously, of the indisputable fact that at the material time because of the absence of Mr. Indge on leave in England, Mr. Nasar was acting in his stead as acting managing director. That being the position it is difficult to appreciate learned counsel’s contention that Mr. Nasar had no authority express or implied (or “either real or apparent” as it was put in the second ground of appeal) to enter into the agreement, or to concede any force or substance to the contention.

The learned judge dwelt a great deal on the available evidence which pointed irresistibly to the fact that Mr. Nasar acted with the knowledge of Mr. Malek the remaining director in Accra at the material time and held that he found it, “impossible to believe that these two directors did not then agree on the line of action which Mr. Nasar took.” But it seems to me that even if there was no such evidence about Mr. Nasar’s consultation with Mr. Malek before he proceeded to Kumasi to take steps to prevent the company’s branch office in Kumasi being closed down indefinitely, in so far as Mr. Nasar was admittedly the pro tem acting managing director, his general authority to act in the best interest of the company to prevent part of the company’s business from being closed down, appears to me to be beyond question. In my opinion there was abundant and ample evidence to justify the learned judge’s finding that Mr. Nasar as acting managing director for the time being had authority to enter into the agreement exhibit C and that the same was binding in the company, and I am therefore unable to accept learned counsel’s arguments and contentions to the contrary.

[p.234] of [1963] 2 GLR 231

There is next the question of the amount claimed. It is to be observed that by the terms of exhibit C, although made in November 1959; “Mrs. Pamela Craig will be paid three and a half per cent. of passage money on all international bookings and two and a half per cent. of all domestic bookings made in the office . . .at Kumasi, from the commencement of the employment with them.” That meant an entitlement from 1957 when she commenced work for the company up to the end of 1959, before a new agreement was made through Mr. Abdo on 1st January, 1960. Her husband and only witness at the trial testified that he, “computed his wife’s entitlement on the basis that exhibit C was valid. Exhibit L is the account prepared by the Chartered-Accountant.” As the learned trial pointed out, “The defendant-company did not dispute the accuracy of this computation.” Nevertheless the computation shown in exhibit L seems a little difficult to understand, especially as counsel for the plaintiff has been unable to explain to us how and on what basis the amounts (i.e., £G937 17s. 3d., £G70 11s. 10d. and £G222 13s. 0d.) shown as “Mrs. Graig’s share” on the dates stated in exhibit L were arrived at or calculated.

I think therefore that the ends of justice may be better served by confirming the learned judge’s finding that the agreement exhibit C entered into by Mr. Nasar, on behalf of the company is valid and binding on the defendants; but setting aside the final order for payment of £G889 8s. 3d. and remitting the proceedings back to the learned judge with he direction that he should make a formal order allowing the defendants a limited time within which they should challenge or falsify the statement shown in exhibit L, if they so desire, and thereafter to determine the question of the balance of account properly due to the plaintiff in respect of her employment for the whole period with the defendants. I would therefore allow the appeal to the limited extent above indicated, remit the proceedings back to the learned trial judge to determine, in the manner indicated, the amount properly due the plaintiff. I would make an order that each party bears his own costs of this appeal, but that the order for payment of costs made by the trial judge should remain undisturbed, and that the costs of the further inquiry into the accounts should be in the discretion of the court.

JUDGMENT OF OLLENNU J.S.C.

I agree.

JUDGMENT OF BLAY J.S.C.

I also agree.

DECISION

Appeal allowed in part.

Case remitted to court below for the determination of the proper amount due to the plaintiff. K. T.