EDWARD NASSAR & CO., LTD. v. ABU-JAWDL [1965] GLR 523

DIVISION: SUPREME COURT

DATE: 28 JUNE 1965

BEFORE: MILLS -ODOI, APALOO AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Practice Note (Loutfi v. Czarnikow Ltd.) [1952] W.N. 481; [1952] 2 All E.R. 823; [1952] 2

Lloyd’s Rep. 429.

(2) Ridgway v. Hungerford Market Co. (1835) 3 Ad. & El. 171; 111 E.R. 378.

(3) Baillie v. Kell (1838) 4 Bing (N.C.) 638; 132 E.R. 934.

NATURE OF PROCEEDINGS

APPEAL AND CROSS-APPEAL from a judgment of Annie Jiagge J. delivered in the High Court, Accra, on 5 June 1964, whereby she awarded the plaintiff £G1,800 damages for wrongful dismissal by the defendant company. The facts as summarised in the headnote are taken from the judgment of Siriboe

J.S.C.

COUNSEL

Dr. de Graft-Johnson for the appellants.

I. Amoo-Lamptey for the respondent.

JUDGMENT OF SIRIBOE J.S.C.

These cross-appeals are from the judgment of Mrs. Annie Jiagge J. then of the High Court, Accra, dated 5

June 1964, whereby she awarded the plaintiff the sum of £G1,800 and 150 guineas costs inclusive, on his total claim of £G7,590 damages and compensation against the defendants for wrongful dismissal. For brevity and convenience sake, the parties will hereafter in this judgment, be referred to as plaintiff and defendants respectively. The events which led to the institution of the action and the resultant appeals are, in substance, as follows: Some time in the year 1957, the plaintiff was brought to Ghana from the

Lebanon by a Mr. Nassar, who, at the time material to this case, was the managing director of the defendant company, to work for the latter. Both of them are related and the plaintiff describes the relationship in the following words, “His [Nassar’s] father is the son of my aunt. Yes, his father is my cousin.” The plaintiff continued to work for the defendants in the capacity of sales manager until 15

March 1963, when he received a letter from the defendants appointing him district manager for a period of three years certain with effect from 1 January 1963.

[p.525] of [1965] GLR 523 This letter of appointment which fixed his salary at £G150 a month together with other emoluments was tendered at the trial as exhibit A, and as it will be necessary to refer to certain portions of it in the course of this judgment, I consider it convenient at this stage to quote the same in extenso as follows:

“WME/TMD/2255

P.O. Box 503,

Accra,

15 March 1963.

Mr. Eid Abu-Jawdi,

District Manager,

ENC. Ltd.

Accra.

Dear Sir,

This is to confirm the agreement reached between you and the Managing Director.

You are to serve the company in Ghana for 3 consecutive years as from 1/1/63. The Company will provide you with a car. The Company will pay you a salary of £150 per calendar month. The Company will provide you with an unfurnished flat free of rent.

At the end of the 3 year period the company will provide for a single ticket for the Lebanon if you are returning there for good.

Yours faithfully,

Edward Nassar & Co. Ltd.

(Sgd.) ? ? ?

General Manager.”

While discharging his duties in that capacity without any query from any quarter, the plaintiff received another letter from the defendants on 1 September 1963 terminating his appointment as from the end of that month; even though, as he put it, “his contract of employment with the defendants has a period of two and a quarter years to run.” That letter was also tendered at the trial as exhibit B, and since it is undoubtedly of some importance to this appeal, it is also quoted hereunder in extenso.

“JYT/MKO/5533

P.O. Box 503,

Accra

1 September 1963.

Mr. Eid Abu-Jawdi,

E.N.C. Ltd.,

Accra.

[p.526]

Dear Sir,

We regret to inform you that owing to re-organisation your services will no longer be required as from the end of this month.

You are requested to please hand over to Mr. Saad, your work of only keeping records but to continue actual selling up to end of your notice at end of September, and to report daily to M.D.

Mr. Nassar is sure you will give your best for sales this month and you will help those who just took-over and no doubt, as you stated, it is for your interest that we are doing so. Mr. Nassar, in view of the relations between him and you and your brother would like to assist in any venture you may wish to enter and would be glad to discuss same with you.

Yours faithfully,

Edward Nassar & Co. Ltd.,

(Sgd.) J. Y. Tamakloe

Asst. General Manager.”

Following the receipt of exhibit B, the plaintiff instituted this action on 31 December 1963 claiming damages and compensation of £G7,590 for wrongful dismissal particularised in the manner hereinafter appearing:

(a) Loss of salary for the period of two and a quarter years at £G150 a month .. .. £G4,050

(b) For the same period, loss of emoluments consisting of free use of a car with petrol supplied, and free use of flat estimated at a £G100 a month totalling .. ..

£G2,700

(c) Earned leave of nine months for six years and one month work performed up to date of dismissal estimated at .. .. .. .. .. ..

£G840

Altogether making a total of .. .. .. .. .. .. .. .. .. £G7,590

The plaintiff’s action was resisted by the defendants whose defence was that it was the plaintiff himself who asked to be relieved of his post with the defendants in order to set up his own business and that following certain discussions which took place between him and the managing director, Mr. Nassar, the latter instructed the defendants’ second witness to write exhibit B to the plaintiff.

By the evidence of their general manager, a Mr. Elie Barbara (the defendants’ first witness), and that of the assistant general manager, a Mr. Joseph Yao Tamakloe (the defendants’ second witness), the defendants contended that prior to exhibit B being

[p.527] of [1965] GLR 523 written, the plaintiff had on several occasions given a clear indication of his intention to leave the defendants. Instances of these were given by these witnesses and, in fact, partly admitted by the plaintiff under cross-examination.

It was also the defence case that to settle the question of the plaintiff’s departure, further arrangements were made between him and Mr. Nassar whereby certain unauthorised sales made by the plaintiff amounting to £G536 7s. 2d. which the plaintiff was unable to collect were written off as the defendants’ bad debt. The car the plaintiff was using while serving the defendants was sold to him for £G50, although its market value at the time was about £G300. In addition to these, he was given, free, some furniture worth about £G30, was paid cash the sum of £G33 12s. 10d. and also given a discount of ten per cent on all biscuits that he would purchase from the defendants. These arrangements, the defence say, the plaintiff acted upon. It is to be observed at this stage, that none of these allegations which were embodied in paragraph (7) of the statement of defence was specifically denied either in the reply or in the evidence given at the trial. The learned judge however, on completion of the evidence and counsel’s addresses held that she was satisfied that the defendants wrongfully dismissed the plaintiff thereby committing a breach of his contract of employment with them.

In her judgment, she remarked as strange, the defence allegation that it was the plaintiff who asked to be relieved of his services, for if that were so, the opening words of exhibit B would have been differently couched and not as they appear in it, namely: “We regret to inform you that owing to re-organisation your services will no longer be required as from the end of September.” She accordingly rejected that plea of the defendants, for she held that the defendants were unable to offer any evidence to prove the truth of the assertions which she, of course, considered would have been a clear answer to the claim, if they had been established.

With regard to the arrangements referred to as pleaded in paragraph (7) the learned judge held that neither the pleadings nor the evidence, oral or documentary, gave particulars of the unauthorised sales. She also held that there was no evidence of the defendants’ regulation (oral or written) forbidding managers to sell on credit to customers. She described as an unreliable witness the defendants’ second witness who gave evidence about the allegations continued in paragraph (7), and ended up by holding that she rejected the allegation of misconduct on the part of the plaintiff for none was proved against him. She accordingly gave judgment against the defendants.

[p.528] of [1965] GLR 523

In considering the question of damages, however, the learned judge held that exhibit A was completely silent on the question of leave during the three year period of service agreed upon. There was likewise a complete silence on any agreement to pay money in lieu of any leave due. Accordingly, she disallowed the claim for £G840 for leave earned as set out in (c)of the particulars of claim. As to claims (a) and (b) of the particulars referred to, the learned judge held the same to be justified; nevertheless, she took into consideration an admission by the plaintiff while under cross-examination that he had secured other employment, and in the circumstances awarded him a year’s salary of £G1,800 as enough compensation together with 150 guineas costs.

It is against that judgment that the defendants have appealed to this court on the following grounds:

“(1) The learned trial judge erred in law in not considering the nature of the defence filed.

(2) In view of the plaintiff’s admission the learned trial judge erred in giving judgment for the plaintiff.

(3) The learned trial judge was wrong in not allowing the defendants’ amendment.”

Against the same judgment the plaintiff too has appealed on the following grounds:

“(a) That the damages of £G1,800 awarded in favour of the plaintiff were far too small and that the full amount of £G7,590 should have been awarded since the defendants did not lead any evidence whatsoever to reduce the damages which were claimed against them.

(b) The defendants offered no legal defence in their evidence and the plaintiff should therefore have been awarded the whole amount he claimed.”

These appeals will now be considered in the order in which they were argued, and so first of all, the defendants’ appeal dealing with ground (1) of the grounds of appeal.

Dr. de Graft-Johnson for the defendants contended that it consisted of two parts: (i) that the plaintiff asked to be relieved of his post as district manager; (ii) that when the plaintiff was about to leave, certain verbal arrangements were made between him and the managing director, which were acted upon as the basis for settlement. The arrangements in question, according to counsel, were the averments contained in paragraph (7) of the defence already referred to, which must be deemed to have been admitted. His reason for so saying, is that those averments

[p.529] of [1965] GLR 523 raised new matters in the defence, yet they were not denied specifically as required by rules of court. In support of this contention, he relied on Order 19, rr. 16, 18 and 19 of the Supreme [High] Court (Civil

Procedure) Rules, 1954,1 the provisions of which are so well known that I need not set them out in this judgment. He contended further that, as pleaded in paragraph (8) of the defence, those averments raised a plea of estoppel, and that since there was no denial either in the plaintiff’s reply or in the evidence given at the trial, the learned judge should have dismissed the plaintiff’s claim. Failure to do so, he submitted, was a clear indication that the learned judge did not fully consider the defence that there was a settlement reached between the plaintiff and the managing director.

Dealing with part (1) of the first ground of appeal, counsel referred to exhibit B, and argued that he was not given the chance to explain certain portions of the letter, more particularly the words “as you stated, it is for your interest that we are doing so,” which appear in the third paragraph of exhibit B. Counsel’s submission on this was that those words taken by themselves, alone or together with the other evidence about plaintiff’s conduct, left no room for doubt that he wanted to leave, and so asked to be relieved of his services, hence exhibit B was so worded for him.

Speaking for myself, I would say that there is considerable force in these submissions made by counsel for the defendants. By their evidence, it was clearly established that the plaintiff had on several occasions given indication of his intention to leave, but for some reason which will emerge in due course, he could not carry out his intentions or threats to leave.

The defendants’ first witness in his evidence stated that the plaintiff had on about four or five occasions told him he did not want to work for the defendants any longer, but when he suggested to him to resign, the plaintiff did not do so. Then again, sometime during the month of August and part of September 1963, while paying one of his usual visits to the managing director Mr. Nassar, who for reasons not stated in the proceedings, happened to find himself in police custody at Legon, the defendants’ witness said he met the plaintiff and Mr. Nassar discussing business. The plaintiff who was then in a temper, openly declared that he was not prepared to take instructions from any other person except Mr. Nassar himself, and that rather than do that, he would prefer to leave the defendants. Although Mr. Nassar tried to get the plaintiff to appreciate the difficult situation in which he was at the time and to carry on with the other staff, the plaintiff ignored this advice. As

[p.530] of [1965] GLR 523 further proof of the defence contention that the plaintiff showed an indication to leave, one of his weekly returns he submitted to the managing director was tendered in evidence at the trial as exhibit 1. In it the plaintiff among other things stated as follows, “I don’t like to hear from anybody that I am not entitled to manage the business otherwise I shall be forced to leave.”

Nor was that all, for in answer to one of the questions put to him by defence counsel, the plaintiff admitted that although he was brought out here by Mr. Nassar on the latter’s quota for the defendants, yet two years afterwards, the plaintiff applied for a quota of his own, while still in the employment of the defendants. All this counsel contended was a clear indication that long before exhibit B was written, the plaintiff had been making plans to leave.

That he could not do so earlier is easily understood, if one considers his own evidence which he gave under cross-examination by counsel:

“It is true that between us employees when Mr. Nassar gave us too much work we say between ourselves that we would leave the company. . . . . . Mr. Barbara [referring to the defendants’ first witness] and I also at one time ore the other when we were given too much work said we might leave the company.”

He then gave the reason, which I have said shows why he could not leave, in the following words, “There was an agreement between me and the company. I cannot choose to leave the company without breaking that agreement.” In the light of all this, I fail to appreciate any substance in Mr. Amoo-Lamptey’s submission that the plaintiff ‘s assertion that he would leave the defendants was a mere bluff, and that he was at all material times willing to work for the defendants until his appointment was determined. In my view the evidence does not in any way support that submission.

In the circumstances of this case, I do not think it unreasonable to assume that the plaintiff considered the state or predicament in which Mr. Nassar found himself with the police as an opportune moment to devise ways and means to avoid his association and thereby that of the defendants. Hence as pleaded in paragraphs (5) and (6) of the defence and also in the evidence of the defendants’ second witness, it was alleged that following certain discussions between the plaintiff and Mr. Nassar, the latter at the request of the former, instructed the defendants’ second witness to write exhibit B to the plaintiff which was done.

According to the defendants’ second witness, “the plaintiff told me after I had given him exhibit B that he was happy to leave the defendant company and that he was fed up.” It is important to observe here that although exhibit B

[p.531] of [1965] GLR 523 contains those pertinent words, to wit, “As you stated, it is for your interest that we are doing so,” there is not a shred of evidence from the plaintiff that he at any time after being handed exhibit B, questioned anybody about it, not even the defendants’ second witness who signed it, nor did he approach the managing director (Mr. Nassar) to inquire from him why such a letter should be written to him. In the second paragraph of exhibit B, the plaintiff was requested to report daily to the managing director up to the time of the expiration of the notice, i.e. the end of September 1963.

Surely in view of the relationship between him and Mr. Nassar as shown earlier in this judgment, if exhibit B was not written at his request and in the manner the defence contended, one would have expected the plaintiff to approach Mr. Nassar about it, as he was available at the time; and more so, as Mr.

Nassar was referred to in the last paragraph of exhibit B as follows, “Mr. Nassar, in view of the relations between him and you and your brother would like to assist in any venture you may wish to enter and would be glad to discuss same with you.” Failure on the part of the plaintiff to do anything of the sort clearly satisfies me that he knew all about what had happened, and that the defence plea was justified.

This view is further strengthened by the fact that, it was after exhibit B was written that the other settlement between the plaintiff and the defendants was effected and acted upon, no doubt, perhaps, in pursuance of the last paragraph of exhibit B quoted supra. In the circumstances, the learned judge, with great respect, misunderstood the real purport of exhibit B because of the narrow view she took of the opening words. That in my opinion led her astray in holding quite erroneously that the defendants failed to prove that the plaintiff himself asked to be relieved of his services with the defendants.

On the question of the unauthorised sales, the defendants’ second witness’s evidence was quite explicit, that not only were those to whom the sales were made outside the class of the accredited customers of the defendants, but also that the plaintiff was unable to collect the outstanding debts which amounted to

£G536 7s. 2d. Particulars of those to whom the credit sales were made together with the amounts were shown on exhibit 2 tendered at the trial, which shows that the defendants had written off the amount as a bad debt. This was not denied, and in the circumstances, it is difficult to appreciate the learned judge’s finding that neither the pleadings nor the evidence gave particulars of the unauthorised sales. The other view held by her that there should have been further proof of the defendants’ regulation, oral or written, forbidding managers to sell to unauthorised customers was, in my opinion,

[p.532] of [1965] GLR 523 altogether unnecessary, having regard to the defendants’ second witness’s evidence on the matter which was not seriously disputed.

With regard to the matters pleaded by the defence which counsel maintained amounted to a settlement and so estopped the plaintiff because they were not denied, it is sufficient to say that that point was clearly made out. The defendants’ second witness’s evidence given in support of these was also not challenged.

Instead, what appears on record is the following statement by counsel for the plaintiff and here I quote:

“I am not bound to reply to a defence that is bogus, an agreement must be pleaded and stated whether oral or written and the time should be pleaded specifically. I treated that defence with the contempt it deserved.”

That to me, was a most unfortunate statement to make, and a dangerous course to adopt; for there was nothing bogus about the matters in question which were pleaded and which gave all the information that was necessary to enable a reply to be given if so desired; that is, if the allegations made were denied. In this connection if counsel was of the opinion that he needed further and better particulars of the matters pleaded to enable him to reply, I think the proper course open to him under the Supreme [High] Court

(Civil Procedure) Rules, 1954, Order 19, was to ask for these but not to treat the pleading with contempt because it was in his view bogus. I am of the view that the course adopted by the plaintiff strongly supports the defence contention on ground (2) that there was an admission of the matters pleaded, and the learned judge in the circumstances should have dismissed the plaintiff’s claim.

That brings me to the third ground of appeal which complains of the learned judge’s refusal to allow the defendants’ amendment. That amendment, counsel argued, was in respect of the defendants’ second witness’s evidence that the unauthorised sales amounted to misconduct on the part of the plaintiff. It was therefore sought to amend paragraph (7) of the defence which already contained the allegation of unauthorised sale, to bring it in line with the evidence that it amounted to a misconduct which entitled the defendants to dismiss the plaintiff, and that they would have done so, but for the settlement reached between them.

The notice of amendment was filed long before the examination-in-chief and cross-examination of the defendants’ second witness were completed, but it appears it was partly argued and deferred until the completion of the defendants’ second witness’s evidence as

[p.533] of [1965] GLR 523 stated. The learned judge disallowed the amendment holding that it was a very substantial change in the issue, and that since the plaintiff had closed his case it would be embarrassing and unfair to him if it were allowed.

It cannot be denied that the power of a court to allow an amendment at the hearing is discretionary, and as it is often said, the court will not readily allow an amendment the necessity for which was abundantly apparent months ago, and not asked for. But it is equally true to say that leave to amend is allowed in certain circumstances even at the close of the case, and I think an example of such is where as in this case, the purpose of the amendment was only to bring in line with the pleadings the evidence already led: see the Practice Note in the case of Loutfi v. Czarnikow, Ltd.2 Besides, the application for the amendment as

I have stated, was filed long before the close of the case for the defendants. It is therefore my considered view that the learned judge erred in refusing to allow the amendment sought by the defence.

That did not however affect the defence put up, for they had clearly established by the incidents recounted in this judgment that the conduct of the plaintiff was not only incompatible with his duty, but was also injurious to the defendants’ business. At p. 487, para. 938 of Halsbury’s Laws of England (3rd ed.), Vol.

25 appears under the heading Conduct incompatible with duty – the following passage: “A servant, whose conduct is incompatible with the faithful discharge of his duty to his master, may be dismissed …Dismissal is also justified in the case of a servant … if his conduct has been such that it would be injurious to the master’s business to retain him.”

Hence in the case of Ridgway v. Hungerford Market Co.3 the defendants’ clerk was held rightly dismissed for having entered in the company’s minute a protest against the election of his successor; the act being “inconsistent with his service.” It might be said that the allegation of misconduct based upon the unauthorised sale was not open to the defendants because the sales were discovered after exhibit B had been handed to the plaintiff, and could not in the circumstances be a ground for dismissing the plaintiff.

In answer to that, I would once more refer to Halsbury’s Laws of England, same edition, volume and page, but at para. 939 under the heading: Grounds for dismissal discovered subsequently where it is stated as follows:

[p.534] of [1965] GLR 523

“It is not necessary that the master, dismissing a servant for good cause, should state the ground for such dismissal; and, provided good ground existed in fact, it is immaterial whether or not it was known to the employer at the time of the dismissal. Justification of dismissal can accordingly be shown by proof of facts ascertained subsequently to the dismissal (Ridgway v. Hungerford Market Co. (1835) 3 Ad. & El. 171, at p.

177), or on grounds differing from those alleged at the time.”

See also the case of Baillie v. Kell 4

The necessity for going to this extent as I have done in this judgment, is to try and justify the view I hold of the case, namely, that, with great respect to the learned judge, it appears to have been superficially considered in the court below. If it had been delved into a little deeper than it appears to have been done, I am sure a great deal would have come to light making the plaintiff’s claim not maintainable; both on the defence plea that he asked to be relieved of his services to set up on his own, or in the alternative, that grounds existed which would justify his dismissal but were not acted upon because of the settlement reached.

The fact that Mr. Nassar was not called at the trial and no reason was given for it, seemed to have been an observation made by the learned judge. It was also made use of by counsel for the plaintiff in his submissions that Mr. Nassar was a material witness but was not called by the defence. The reason for this could be, and this of course is purely a matter of conjecture, that in view of what happened to him some time in August, perhaps after his release on 14 September he might have left the country.

In any event his absence, in my opinion, did not affect the defence. Why the plaintiff never at any time, while Mr. Nassar was here, made the slightest attempt to approach him to register any protest against exhibit B but waited for about three months before bringing this action is best known to himself. The logical inference to be drawn from this in my view is that he thought the absence of Mr. Nassar would handicap the defendants in his claim made against them, but that in my view, failed to achieve its purpose.

I think I have given enough indication in this judgment that the defendants’ appeal should succeed, thereby making it unnecessary for me to deal with the plaintiff’s appeal which affected only the quantum of damages. The success of the appeal by the defendants automatically disposes of the plaintiff’s appeal, as there will be no judgment upon which that appeal can be based and argued. In the final result, I would allow the defendants’ appeal and set aside the

[p.535] of [1965] GLR 523 judgment appealed from together with any order made as to costs. In lieu thereof, I would dismiss the plaintiff’s claims and enter judgment for the defendants with costs in this court and also in the court below.

JUDGMENT OF APALOO J.S.C.

I am also of opinion that this appeal should be allowed, but as we are differing from the learned judge on what is essentially an issue of fact, I desire to add a few words of my own. The facts of this case and the rival contentions of the parties have been set out in great detail by my brother Siriboe J.S.C. and I do not repeat them. It is not in dispute that the plaintiff was employed by the defendant company on the terms which were set out in the letter of 15 March 1963 and which was tendered in evidence as exhibit A. It is equally not in dispute that the plaintiff’s association with the defendant company was brought to an end by the latter’s letter of 1 September 1963 (exhibit B). The real bone of controversy is: While the plaintiff says that his association with the defendant company was brought about by the unilateral act of the company, the latter say it was consensual and that the letter of 1 September 1963 was written to accommodate the plaintiff.

The letter (exhibit A) ex facie supports the case of the plaintiff and I respectfully agree with the learned trial judge that the defendant company were obliged to show that notwithstanding appearances to the contrary, that letter in fact was written at the plaintiff’s request and that there was a settlement which precludes the plaintiff from pursuing the present claim. The learned trial judge decided that the defendant company failed to show that there had been such a settlement. With respect I think the learned judge, in arriving at that conclusion, did not weigh the probabilities to determine which of the rival stories is the more probable. She also, it seems, did not give sufficient weight to the probative effect of other bits and pieces of evidence which cumulatively go to show that the defendant company’s account is the one likely to be the truth.

Mr. Tamakloe testified that he wrote the letter of termination on the instructions of Mr. Nassar. That, in my opinion, must be true because it is impossible to conceive that Mr. Tamakloe would, off his own bat, write to terminate the appointment of a man who is a relation of the managing director. The evidence shows that at the time the letter was written, Mr. Nassar was himself in custody. If Mr. Nassar felt that he was in trouble and that the strength of his staff should be reduced, it does not seem reasonable that of all his staff, he would wish to dispense with the services of the plaintiff who was his relation and whom he had himself brought into this country.

[p.536] of [1965] GLR 523

The letter on which the plaintiff relies itself contains a paragraph which shows that the plaintiff’s severance of ties with the company was consensual. The last line of paragraph (3) of the letter states “as you stated, it is for your interest that we are doing so.” That phraseology is not in orthodox English but I understand it to mean that “we are dispensing with your services in your own interest.” If the plaintiff had not asked to be relieved of his post, that letter would not have made sense to him. If it had not, it seems to me plain he would have taken issue with Mr. Nassar, whom, according to that letter, he was to report to daily. There is no evidence that the plaintiff expressed any surprise or felt aggrieved at the receipt of this letter. Had the letter come to the plaintiff as a surprise, he would have reacted in a way consistent with grief and disappointment at being thrown out of a job. While the plaintiff led no evidence that he felt aggrieved at what must be to him a sudden loss of his means of livelihood, Mr. Tamakloe testified that

“the plaintiff told me after I had given him exhibit B [meaning the letter of termination] that he was happy to leave the defendant company and that he was fed up.” That this must be true, is shown by the fact that the plaintiff at no time wrote to the company to point out their breach of contract with him or to advance the claim which he subsequently put up in court, namely, that he was damnified by being wrongfully dismissed by the company. On the contrary he seems to have set himself up in business almost immediately and taken advantage of a facility which the company granted him to purchase biscuits at a discount of ten per cent. I think the right inference to draw from all these facts is that both the plaintiff and the defendant company mutually parted company and as there is no evidence that the company had any particular reasons to dispense with the services of the plaintiff they must have agreed to a request from the plaintiff to be relieved of his post. In those circumstances, the letter of termination ought not to be taken on its face value and in my opinion, the learned judge ought to have lifted the veil over this letter and examined the plaintiff’s proved conduct in relation to his alleged grievances.

There is, in my opinion, other inherently credible evidence led on behalf of the company which supports the company’s case. There is, for instance, the evidence that the plaintiff had repeatedly expressed his intention of severing his association with the company and as long ago as 1959 obtained his own residential permit. That shows that the plaintiff foresaw what happened. There is also the evidence that the company let him have for only £G50, a car which was worth at least £G300. I do not believe they would have done that unless they knew that they and the plaintiff were parting as friends. Mr. Tamakloe also testified that at the time the plaintiff

[p.537] of [1965] GLR 523 was about to go, he was paid something between £G30-£36 as his entitlement from the company. This evidence was not disputed in cross-examination. I do not believe he would have accepted that paltry sum from a company that gravely wronged him by wrongfully dismissing him and from whom he considered himself entitled to the substantial sum of £G7,590 which he claimed in this action. I think the learned judge’s rejection of the defendant company’s case was due to an inadequate consideration of the probabilities inherent in this case. I agree with Siriboe J.S.C. that she arrived at the wrong conclusion. I would therefore also allow the appeal in the manner he has proposed.

JUDGMENT OF MILLS-ODOI J.S.C.

I am also of the opinion that the appeals be determined in the manner indicated by my brother Siriboe

J.S.C. and for the reasons which have been already given by him and my brother Apaloo J.S.C.

DECISION

Appeal allowed.

Cross-appeal dismissed.

S. K. D.-B.