FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471

DIVISION: HIGH COURT, ACCRA

DATE: 26 APRIL 1968

BEFORE: OLLENNU J.A.

NATURE OF PROCEEDINGS

ACTION by the plaintiff at the High Court, Accra, for wrongful dismissal. The facts are sufficiently set out in the judgment of Ollennu J.A. sitting as an additional judge of the High Court.

COUNSEL

I. Amissah-Aidoo for the plaintiff.

Anson for the defendants.

[p.473] of [1968] GLR 471

JUDGMENT OF OLLENNU J.A.

The plaintiff’s claim is for damages, special and general, for breach of contract and loss of career. He pleaded that he was an employee of the defendant corporation, and in paragraph (5) of his statement of claim he pleaded that “the defendant corporation unlawfully dismissed the plaintiff from its employment summarily.” The impression which that endorsement on the writ of summons and the statement of claim created is that the defendants dismissed the plaintiff without showing any cause. In their statement of defence, the defendant corporation averred that they dismissed the plaintiff because he purchased “contraband goods in contravention of the rules and directives of the defendant.” In reply to that defence, the plaintiff denied purchasing contraband goods, or in any way contravening the rules of the corporation. At the commencement of the trial, learned counsel for the plaintiff invited the court to rule that by the averment in the statement of defence that the plaintiff was dismissed for good cause, the defendants admitted the dismissal, and thereupon took upon themselves the onus of proving that the dismissal was lawful; he submitted therefore, that the onus was upon the defendants to begin. Onus in law always lies upon the party who would lose if no evidence is led in the case: see Wakelin v. London & South Western Railway Co. (1886) 56 L.J.Q.B. 229, H.L.; Jefferson v. Paskell [1916] 1 K.B. 57, C.A.; and where some evidence has been led, it lies upon the party who would lose if no further evidence was led: see Abrath v. North Eastern Rly. Co. (1883) 11 Q.B.D. 440, C.A. In the present case the plaintiff maintains that he has been dismissed, and that his dismissal is wrongful; and the defendants too maintain that he has been dismissed and that the dismissal is not wrongful. The issue, therefore, is whether the dismissal of the plaintiff is wrongful. Quite clearly the person who would lose if no evidence is led in the case would be the plaintiff. Upon that principle I ruled that the onus is upon the plaintiff to prove that he has been wrongfully dismissed. The defendant corporation are owners of some hotels in Ghana including the Star Hotel; they employed the plaintiff as manager of the Star Hotel. The terms of employment are set out in a document entitled”Conditions of Service State Enterprises “which was admitted in evidence on behalf of the plaintiff as exhibit E. Chapter 1, Part 1 of it deals with discipline and provides as follows: “1. Any act of misconduct or negligence on the part of an employee of a corporation is an offence which may render him liable to disciplinary action, particularly the contravention of, or failure to observe an instruction.

[p.474] of [1968] GLR 471

(2) In the event of an employee found guilty of serious misconduct such as dishonesty, insubordination, drunkenness dereliction of duty he or she shall be dismissed summarily.

(3) An employee who commits an offence which does not amount to serious or gross misconduct or whose work or conduct is not considered satisfactory shall be warned in writing.

(4) No employee, except in a case of serious or gross misconduct shall be dismissed without being given the opportunity of defending himself against the charge brought against him.

(5) All employees are prohibited from giving or receiving valuable presents (other than ordinary gifts from personal friends) with a view to securing an advantage with the enterprises whether in the form of money, goods or other personal benefits.”

And chapter 5 which deals with termination and leaving employment provides that:

“36. Employees are entitled to notices in the event of termination other than dismissal for gross misconduct. Such notice will be one month in the case of employees earning £G680 per annum and three months in the case of employees earning £G680 per annum and above. Payments may be made in lieu of notice. Employees will be required to give this period of notice on resignation.

37. The appointment of an employee earning £G680 per annum and above shall not be terminated without the prior approval of the Board of Directors.”

It is common ground between the parties that the defendants have by oral as well as by written directives prohibited managers and manageresses of their hotels from purchasing contraband goods. A copy of the first documentary directive which was given on 24 December 1965 was admitted in evidence on behalf of the defence and marked exhibit 1, and it reads as follows: “To: All Hotel Managers/Manageresses And Accountants.

CONTRABAND GOODS

With immediate effect. no manager/manageress should under any circumstances purchase contraband goods of any kind.

[p.475] of [1968] GLR 471

If any manager/manageress is held involved in this exercise and subsequently prosecuted, the person will be dealt with personally with no concern of the corporation.

(Sgd.) J. F. Ackah

MANAGING DIRECTOR cc: The Chief Accountant,

State Hotels Corporation.”

On 2 April 1966, the defendants sent out copies of that circular letter to all the managers and manageresses, and asked each to acknowledge receipt. The plaintiff accordingly acknowledged receipt by a letter dated 5 April 1966, exhibit 3, in which he stated as follows:

“Dear Sir,

CONTRABAND GOODS

This is to acknowledge the receipt of your letter SHC.6/SF. 1/165 of 2 April 1966 drawing my attention to the circular letter passed in connection with the above subject.

2. Since the circular letter was received, I have not indulged myself in that transaction. It has amounted to an acute shortage of certain moving goods but as far as the Head Office circular letter and my peace of mind are concerned, I have not taken any steps contrary to your orders. Yours faithfully, for: STAR. HOTEL

(Sgd.) J. C. Faibi

MANAGER.”

Some time in August 1966, the Star Hotel premises were searched by the Border Guard Police on two occasions and a quantity of drinkables and Rothman’s cigarettes were seized upon an allegation that they were contraband goods. Part of these were returned to the plaintiff when the Border Guards were satisfied that those were not contraband goods. Upon the matter coming to their notice the management committee of the corporation summoned the plaintiff to a meeting to explain himself, and by their letter dated 11 August 1966, exhibit G, called upon the plaintiff for a written report on the circumstances surrounding the allegation of purchase of contraband goods. The plaintiff’s reply to that letter is exhibit 4 dated 23 August 1966. In it he listed all the goods which were seized at the first search, and [p.476] of [1968] GLR 471 also attached a list of those seized on the second occasion, and said inter alia:

“4. With the exception of 1 carton x 50 packets Rothman’s cigarettes, 22 bottles White Horse whisky and 3 bottles Henkes Schnapps, the goods they collected from the hotel were the remains of goods ordered by the Head Office before the O.A.U. conference and supplied to the hotels, some of which were drawn from Ambassador Hotel as arranged . . .

6. On 22 August 1966 the same police corporal and a team of Border Guards conducted a second search in the hotel in the evening from 5.30 p.m. to 9.00 p.m. They carried away quite a number of drinkables which we genuinely purchased from the local stores. There was nothing contraband in this second batch of goods carried away.

7. The second day, 23 August 1966, I produced all the invoices covering them and they have been released to me.

8. I attach herewith a copy of the list of the drinks which were taken away on the second search but have been returned.”

Action was instituted by the Comptroller of Customs and Excise against the plaintiff under section 197 (e) of the Customs Ordinance, Cap. 167 (1951 Rev.), in respect of the 26 bottles of whisky,, “White Horse,” three bottles of Schnapps and 58 bottles of Dubonnet wine and 104 8/10 cartons of Rothman’s cigarettes. But the action was dismissed, the district magistrate holding among other things: (1) that the Star Hotel were the proper persons to be sued, and (2) that “the defendant [plaintiff herein] acting if at all for the Star Hotel, has produced evidence oral and documentary to show that the confiscated goods are not contraband.” Learned counsel for the plaintiff impliedly contended that the status of the goods as not contraband had already been decided by one court of justice and therefore it could not be reopened by this court. It is enough to say that the judgment of the district court tendered as exhibit B is irrelevant to these proceedings because the defendants were not parties to it, and therefore it does not operate as res judicata; and in so far as it is an expression of opinion on the law, it is not binding upon this court. To succeed in this case the plaintiff must either prove that he did not contravene the orders of his employers, or if he did, that the orders are unlawful and unreasonable. He agrees that the order prohibiting the purchase is lawful and reasonable. He also admits that he purchased some of the goods in question, particularly the [p.477] of [1968] GLR 471

Rothman’s cigarettes, after the corporation had issued the prohibition order. Therefore his main task is to satisfy the court by preponderance of evidence that the goods are not contraband.

Again, the plaintiff deposed that the purchases of the goods in question were made not from any shop or trading organisations, but from some individuals, but that he did not bother to find out how those individuals came by those goods. For example, in the case of the Rothman’s cigarettes he knew quite well that no licence has been issued by the government for the importation of that brand of cigarettes since 1964 at least, and that that most popular brand was therefore not obtainable in this country. Nevertheless he purchased these goods from a certain individual who showed him what purported to be a numbered licence, without finding out from the vendor how he obtained the licence. Whether or not the plaintiff purchased contraband goods is a question of fact. At an early part of his evidence-in-chief, the plaintiff testified as follows:

“No, I am no longer in the employment of the defendant corporation.

I was accused of purchasing contraband goods and dismissed. It is correct that I purchased contraband goods; but I did so with the consent of the defendants.”

But immediately thereafter he changed and said: “I now say that I purchased some goods but not contraband goods.”

Again, the impression which the letters, exhibits 4, 5 and 6 create is that the plaintiff purchased contraband goods. Asked why he said the goods are not contraband goods, he replied: “The reason why I said that those goods are not contraband goods is because they were drinks I purchased for the hotel.” When faced with the statements he made in exhibit 4 and exhibit 5 and his evidence that he purchased the goods in question not from the shops but from some individuals, and his further evidence that he did not bother to find out how those individuals came by those goods, the plaintiff immediately took refuge in a pretence of ignorance of what contraband goods are. In re-examination we have the following questions and answers:

“Q. How would you know whether the Rothman’s cigarettes are contraband goods at the time you purchased them?

A. There is nothing by which I could tell.

Q. Did you know as a manager of the hotel that the government had prohibited the importation of Rothman’s cigarettes?

A. Yes, I know, I got to know this because people were not being issued with import licence for them. I know they have not

[p.478] of [1968] GLR 471 been available for many years. I purchased the Rothman’s cigarettes late 1966 after the issue of the circular letter.

Yes, those are the Rothman’s referred to in the summons served upon me by the Customs.”

And in reply to the court, the plaintiff said, inter alia:

“No, although I say I do not know what contraband goods are, yet I did not at any time ask the corporation to show and teach me how to know and detect them in order not to infringe their orders.

No, I did not take any steps after the warning by the corporation against contraband goods, and even after the circular to ensure that I do not purchase contraband goods.

When I said I know that the government was not issuing licences for the importation of Rothman’s cigarettes, I mean I know that since 1964 no licences have been issued.

Although it is to my knowledge that licences were not being issued for Rothman’s cigarettes, yet the man who sold them to me produced an unnumbered import licence, and I believed him.”

Surely, if to his knowledge no licence has been issued by the government since 1964 for the importation of Rothman’s cigarettes, it should have occurred to the plaintiff when he purchased those goods, that he was purchasing goods which had not been imported lawfully.

It was open to the plaintiff to have called the gentlemen from whom he said he purchased those drinkables and the cigarettes to prove that the goods they sold to him are not contraband. But he did not call them. The inference is that their evidence which is available to him is not favourable to his case. Again, the plaintiff could have produced those invoices, vouchers and receipts which he is alleged to have produced in the case before the district magistrate, but he did not. Having regard to the evidence which emerged in cross-examination of the only witness for the defendants as to the discovery made, as to how the plaintiff paid for those goods, one can understand why the plaintiff would not produce the alleged invoices, etc. If evidence is peculiarly within the knowledge of a party and that party would not produce it, the inference of law is that evidence is against him. I do not believe the plaintiff when he says that he did not know what contraband goods are. I find that he purchased the goods in question with full knowledge that they are contraband, and that he did so in reckless contravention of the orders of the defendant corporation, his employers. The conclusion I have come to upon the facts is that the plaintiff was lawfully dismissed, and his claim therefore fails. [p.479] of [1968] GLR 471

But in case I am wrong in the findings of fact I have made and the consequent legal conclusion, I would deal with the question of damages very briefly.

I agree with the submissions of learned counsel for the plaintiff that if the dismissal had been wrongful the principles laid down in Lavarack v. Woods of Colchester Ltd. [1966] 3 All E.R. 683, C.A. provide a guide as to the basis of assessment of damages. Applying those principles to this case, I would say that the plaintiff would have been entitled to his full salary up to the date of his dismissal, three months’ salary in lieu of notice: Morgan v. Parkinson Howard Ltd. [1961] G.L.R. 68; and in addition, all commissions, bonuses, rent allowances and all other benefits which might have accrued to him during the period of three months, i.e., for the duration of a lawful notice: see Lando v. Angelo [1961] G.L.R. 210. I cannot accept the proposition that even when the contract of employment has provided duration of notice, a wrongful dismissal would nevertheless entitle the servant to all salaries and allowances he would have received from the employment up to the date he might have retired from the service of his employer. In my opinion where the duration of notice necessary for lawful dismissal is provided by statute, regulation or by practice of a trade, the intention is to limit all entitlements of the employee within the period of the notice; in other words, damages for wrongful dismissal would be based upon all that he might have earned if the proper notice had been given to him: see discussions on the subject in Halsbury’s Laws of England (3rd ed.), Vol. 25, p. 523, para. 995. I therefore reject the contention of learned counsel for the plaintiff that since by chapter 16, para. 90 of the service agreement, exhibit E, the retiring age is fixed at 60 years, damages upon wrongful dismissal should be based upon salary and all allowances he might have earned up to the date when he attains that age, and also gratuity and pension he might have got upon retirement. Taken to its logical conclusion the submission will mean that once a person is employed he becomes vested with a right to remain in the employment until the date of retirement, therefore even when he is lawfully dismissed, he cannot be divested of that right. This will make nonsense of the provision in employment agreement-for termination of the employment on notice. No evidence was led as to bonus or other allowances which the plaintiff is entitled to. Therefore if the dismissal had been proved to be wrongful, assessment of the quantum of damages would be based upon (a) salary due to the plaintiff up to the date of his dismissal, (b) three months’ salary in lieu of notice, and (c) salary in lieu of leave earned. [p.480] of [1968] GLR 471

But as I have already held, the plaintiff has failed to prove that his dismissal is wrongful.

The plaintiff’s claim is therefore dismissed, and judgment entered thereon for the defendant corporation with costs fixed at N¢50.00.

DECISION

Action dismissed.

S. K. T.