GOLDEN GATE SERVICES LIMITED VRS MENSAH (COF 1/2020) [2023] GHAHC 561 (31 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WESTERN REGION (COMMERCIAL DIVISION), HELD IN SEKONDI ON MONDAY THE 31ST DAY OF JULY, 2023 CORAM: G. K. GYAN-KONTOH ‘J’ JUSTICE OF THE HIGH COURT BETWEEN: SUIT NO: COF 1/2020. GOLDEN GATE SERVICES LIMITED ::: PLAINTIFFS BIT AND PIECES BUILDING, TEMA. VS YAW MENSAH TAKORADI. ::: DEFENDANT ======================================================================= JUDGMENT: The Plaintiff instituted the instant action against the Defendant herein on 28/7/2020 for the following reliefs: (a) Recovery of the sum of Gh¢231,000.00 being the sum which the Defendant withdrew from the Plaintiff’s Account without authority and mandate and converted same to his use; (b) Interest on the said sum at the prevailing Commercial Bank rate from 6th April, 2018 to date of final payment. BACKGROUND: The case involves an Employer/Employee relationship in stevedoring work with the Head office in Tema and the Defendant managing the Takoradi branch of the Plaintiff’s company. In the course of their relationship, a Bank Account at Takoradi Prudential Bank was opened for the Defendant in that capacity and as a sole signatory to same – to use cash flows generally for business purposes upon prior approval of the Plaintiff. This continued for decades until in 2018, a lodgement of Gh¢231,174.95 from Ghana Ports & Harbours Authority was made into this sole signatory Account at Prudential Bank, Takoradi for work done by the Plaintiff at Takoradi Harbour. Immediately upon a prompt of the lodgement, the Defendant cleared the amount and used same for himself and a former employee of the Plaintiff company contending that the cash had been used for his “expat arrears”, etc. Angered by this, the Plaintiff lodged the instant suit for the reliefs endorsed on the writ of summons. After pleadings stage, the Plaintiff averred that it is a company rendering stevedoring services at the Port of Ghana and the Defendant was on 1/6/2002 employed by the Plaintiff as Manager of its Takoradi Branch with his conditions of service partly contained and partly attached to the Defendant’s letter of appointment of 7/8/2002 as the Plaintiff had just set up a branch at the Takoradi port for stevedoring service. The Plaintiff averred that as part of its policy, all payments due it from Ghana Ports and Harbours Authority (GPHA), Takoradi are paid to its Ecobank Account at Tema but on 5/4/2018, the Defendant, without authority or mandate MANAGED and directed GPHA to pay the sum of Gh¢231,174.95 due to the Plaintiff into its Prudential Bank Account in Takoradi of which the Defendant was the sole signatory and thus on 6/4/2018 the Defendant withdrew Gh¢231,000.00 on the said account and has converted same to his personal use and the Defendant failed to pay over the said sum back to the Plaintiff despite repeated demands. Upon the prompt of the writ of summons, the Defendant entered appearance on 12/08/2020, and on 28/08/2022 filed his defence together with a counterclaim as follows: The Defendant generally denied the Plaintiff’s statement of claim but admitted that he was employed by the Plaintiff in 2002 but received his letter of appointment in August, 2002 and worked with the Plaintiff until March, 2018. The Defendant averred that prior to the stevedoring services to GPHA, the Plaintiff was heavily indebted to the Defendant as a result of accumulated expat salaries, accrued salaries and unpaid outstanding leave allowances which resulted in the Chief Executive Officer (CEO) of the Plaintiff company in 2015 alerting all branch managers that as a result of the accumulated Dollar arrears on expat salaries and the company’s inability to pay, he would like to devalue the official vehicles to the managers including the Defendant’s vehicle and deduct same from the arrears owed them so as to devalue the official vehicles so as to become the personal asset of the managers involved including the Defendant and so the Defendant’s vehicle, based on the said arrangement by the ECO, his official vehicle was valued at US$14,450.00 and this was deducted from what the Plaintiff at the time owed the Defendant, then standing at US$21,000.00 and the said vehicle was accordingly handed over to the Defendant as his personal vehicle leaving a remainder of US$6,555.00 payable to the Defendant as the Plaintiff’s debt to the Defendant. As at 31/5/2015, the accrued Dollar (expat salary was USD 21,000.00 plus unpaid outstanding leave allowance, according to the Defendant’s calculation. According to the Defendant, later, after releasing the official car to him, the Plaintiff again paid US$5,000.00 to the Defendant leaving a remainder of US$1,550.00 payable to the Defendant by the Plaintiff, and all the while he was still in the employ of the Plaintiff company discharging his duties as the manager without payment of salaries to him. According to the Defendant, by a memo of 29/11/2016, the Plaintiff sought to vary the Defendant’s conditions of service against the settled practice much to the chagrin of the Defendant and other branch managers. The Defendant averred that as at 20/09/2017, the Plaintiff had failed to pay the Defendant his newly accrued expat salaries then standing at US$29,550.00 and he caused his lawyers on 20/09/2017 to issue a demand notice to the CEO for the payment of USD 29,550.00 but the Plaintiff failed to pay him. And he sent another letter dated 26/02/2018 on his demand and the Plaintiff admitted their liability to him. The Plaintiff then encouraged the staff to look for jobs and to use such fess to defray its indebtedness to them. Later, the Defendant averred that the Plaintiff wrote to the Defendant unilaterally abolishing the payment of the expat salaries and he, Defendant informed the CEO that his decision to abolish the expat allowance unilaterally was unacceptable. The Defendant averred that that he operated two (2) accounts – Dollar Account and Cedi Account and he had the discretion as to which account he pays fees for service rendered into. The Defendant averred that on 13/01/2018, the CEO informed him (Defendant) at a meeting in ema that the GPHA had threatened to terminate the Plaintiff’s contract and thus wanted the Defendant to look for one ship to enable the proceeds used for payment of staff including the Defendant and this was done all through the instrumentality of the Defendant and all the proceeds were paid by GPHA into the Plaintiff’s account; and not into the Defendant’s personal account at Prudential Bank, Takoradi. The Defendant averred that being a branch manager he made several disbursements which were lawful without recourse to any approval from the CEO when such sums were indeed due and owing. The Defendant contended that as at 6/4/2018, the Plaintiff was indebted to him at US$34550.00 being expat salary arrears and Gh¢34,007.92 being unpaid outstanding leave from 2020 – 2017 (8 years) and that being a branch manager, he was equally aware of the indebtedness of Gh¢11,510.00 owed one Kweku Adjei Sarfo by the Plaintiff as well. The Defendants averred that as a result of the meeting with the CEO on 13/1/2018 and having brought in the said stevedoring service job from GPHA, he withdrew Gh¢231,000.00 lawfully to pay all the company’s debt to him and the said Kweku Adjei Sarfo as agreed to by the CEO as the Defendant was a signatory to the Plaintiff’s company’s account. The Defendant avers that on 9/4/2018 he wrote to the CEO through his Lawyers detailing the payments made thereto and further that a credit of Gh¢33,116.40 was still available and being withheld as part of payment of eh Defendant’s severance award but same was even treated with disdain. The Defendant averred that for over 16 years he was a truthful and loyal manager without a single issue of fault but he was charged at the Circuit Court for stealing but he was acquitted and maintains that as at present the Plaintiff is still indebted to him by way of unpaid severance award as has been done to others over the years, the Defendant counterclaimed for: a. A calculation of the severance award entitled to the Defendant for 16 years of his service to the Plaintiff company; b. Payment of the said severance award less the Gh¢33,116.48 being withheld by the Defendant; c. Punitive cost for wrongful prosecution of the Defendant. d. Legal costs. MEMORANDUM OF ISSUES (BY PLAINTIFF): After the parties had filed their respective memorandum of issues, the court on 13/4/2021, adopted the following as the issues for determination. 1. Whether or not the Plaintiff company requested its Branch managers to secure jobs or services and use the money earned for such job to defray the Plaintiff company’s indebtedness to them. 2. Whether or not there was an agreement between the Plaintiff company and the Defendant to the effect that monies paid by the GOHA for services rendered to it should be used to defray the Plaintiff’s indebtedness to the Defendant. 3. Whether or not the Plaintiff company is indebted to the Defendant by way of unpaid severance award for 16 years of service to the Plaintiff company. 4. Whether or not the expat allowance denominated in dollars formed part of the Defendant’s compensation at the item he was issued a contract of employment by the Plaintiff in 2002. 5. Whether or not the Defendant sought authorization from the Plaintiff before paying himself and another employee of the company the amount of Gh¢213,000.00 which he withdrew from the Prudential Bank Account of the Plaintiff in April, 2018. 6. Whether or not before these payments by the Defendant to himself and the employee, the practice was that the Plaintiff would transfer monies for salaries payments from either the Ecobank Account at Tema or from its Prudential Bank Account at Tema, into the Prudential Bank Account, Takoradi. 7. Whether with the dismissal of the Plaintiff (Defendant) for gross-misconduct from the Plaintiff company he was entitled to any compensation and/or severance package. Pursuant to the above, parties were directed to file their respective witness statements which was duly complied with. PLAINTIFF’S CASE: The Plaintiff engaged in stevedoring activities in Tema, created a Takoradi branch and engaged the Defendant as its Branch Manager although the Defendant was not a director of the company. In the course of the affairs of the Plaintiff operations, an “expat” allowance was introduced by the Plaintiff for its top managers including the Defendant. And also, a sole signatory account was created by the Plaintiff for the Defendant, for the Plaintiff’s operations and smooth running of the Takoradi Branch at the Prudential Bank, Takoradi which was operated solely by the Defendant for the Plaintiff’s work and mainly for disbursements. The Plaintiff, according to him, set up the “expat” allowance for its top managers during the Ivorian crises and it was later on suspended or withdrew the said “expat” allowance with the sufficient notice to same including the Defendant. But, according to the Plaintiff, the Defendant would not accept the suspension or withdrawal of the “expat” allowance and so continued to demand his share until he took an amount of Gh¢213,000.00 from the Plaintiff’s Takoradi Bank Account at Prudential Bank after the GPHA had lodged payments for work done by the Plaintiff at the Takoradi Harbour for GPHA. According to the Plaintiff, the Defendant influenced the lodgement of the said amount into the Takoradi Account instead of the usual Tema branch account so as to convert same with the aim of utilising same for his expat allowance and others. According to the Plaintiff, this conduct of the Defendant was unapproved and so was a conversion but the Defendant sought to justify his action. A complaint was lodged with the Police, the Defendant was apprehended, charged, tried and discharged and acquainted by the court. The Plaintiff called PW1 who sought to corroborate the Plaintiff’s case and particularly on the expat allowance, the conversion of money by the Defendant and his dismissal from the Plaintiff’s employment. DEFENDANT’S CASE: According to the Defendant, he having been employed by the Plaintiff as its branch manager of Takoradi and as part of his work and for smooth operation of the Plaintiff’s work in Takoradi, was given an unfettered authority by the Plaintiff, as a sole signatory to an account at Prudential Bank, Takoradi purposely opened for the Defendant for the said purpose. According to the Defendant, the Plaintiff, due its liability and indebtedness to the Defendant implored him to lobby the GPHA for work to enable the Plaintiff pay off its debt to the Defendant. This, the Defendant did successfully. So, when GPHA paid the Plaintiff through the Takoradi Branch Account of the Plaintiff, to which the Defendant is the sole signatory, he accordingly withdrew same (being Gh¢231,000.00) to settle all of the Plaintiff’s debt to him being the “expat” allowance and others together with the payment of the outstanding amount of workers redundancy package. The Defendant contended that he did not owe the Plaintiff any amount save a remainder of Gh¢ which he had kept to cater for his redundancy package. The Defendant called DW1 who also generally corroborated a fact of the Defendant’s effort at getting the GPHA to offer the Plaintiff job to do to have cash to settle the Plaintiff’s debt with the Defendant settled. At the end of the case of the parities, Counsel were directed to file their respective written submissions. Both Counsel complied with the court’s order. SUBMISSION BY COUNSEL FOR THE PLAINTIFF: Counsel submitted that the Plaintiff never requested the Defendant or any person to look for jobs/services to enable the Plaintiff defray any indebtedness to the Defendant and that what the Defendant did with the amount lodged in the Plaintiff’s bank account at Takoradi was purely the machinations of the Defendant to achieve his aim of converting the Plaintiff’s money. Counsel submitted that the parties never agreed that the Defendant should use any money of the Plaintiff to pay for any monies be they expat, leave or otherwise of allowances, entitlement or pay. Counsel submitted that the money that the Defendant took was not his personal money and so the Defendant ought to have respected the reporting procedure by generating memo or payment voucher to be generated in his name to enable him take the money which he converted. Counsel submitted that contrary to the Defendant’s contention on redundancy and severance package, there was no negotiations on the subject and so there can therefore not be any basis for redundancy and severance package for the Defendant. Moreover, Counsel submitted that the Defendant was summarily dismissed and so the issue of severance package or negotiation became moot. Counsel submitted that the Defendant was not entitled to his counterclaim as the Defendant could not produce any document to support his claim for “expat” allowance as same did not form part of the employment of the Defendant. SUBMISSION BY COUNSEL FOR THE DEFENDANT: Counsel submitted that as at 2018, the Plaintiff owed him US$34,550.00 in addition to other entitlements. Counsel submitted that due to the above, the Plaintiff urged him to help the Plaintiff pay off the above debt upon work of GPHA, Takoradi Branch which the Defendant executed to perfection through DW1 (an officer of GPHA). Counsel submitted that the Defendant rightfully disbursed as he claimed for his sole signatory account of the Plaintiff. OPINION OF THE COURT: In this judgment, the court will have to deal with issues of conversion in Tort, stealing, Redundancy and Severance award through negotiations, leave, dismissals, terminations, summary dismissals, allowances, set off, passing of and transfers after leave, as they are raised time and again and used either as defence or prosecution of the case by either to the parties as and when it suited each other. WHETHER OR NOT THE PLAINTIFF COMPANY REQUESTED ITS BRANCH MANAGERS TO SECURE JOBS OR SERVICE AND USE THE MONIES EARNED FROM SUCH JOBS TO DEFRAY THE PLAINTIFF COMPANY’S INDEBTEDNESS TO THEM; AND ISSUES TWO (2) TOGETHER AND WHETHER OR NOT THERE WAS AN AGREEMENT BETWEEN THE PLAINTIFF COMPANY AND THE DEFENDANT TO THE EFFECT THAT MONIES PAID BY THE PLAINTIFF FOR SERVICES RENDERED TO IT SHOULD BE USED TO DEFRAY THE PLAINTIFF’S INDEBTEDNESS TO THE DEFENDANT: The above two (2) issues have been the contention of the Defendant. This is captured in paragraph 32 of the Defendant’s witness statement and corroborated by DW1. But this contention was vehemently challenged by the Plaintiff. There is no denying the fact that the Plaintiff did some work for GPHA in Takoradi for which payment was effected through the Plaintiff’s Takoradi branch account at Prudential Bank. For this court, in so far as the case is concerned it is not much relevant if indeed the Plaintiff requested the Branch managers to secure services for the Plaintiff company. After all, the branch managers are generally employed to offer services in material particular for their employers so as to generate income for payment to its staff. Therefore, if the Defendant was specifically requested to do so, it does not change anything, as after all the Defendant is expected to be paid periodically for work done for his employer, and in this case the Plaintiff. For the past 16 or so years that the defendant was employed as branch manager specifically for Takoradi branch, as the Plaintiff had only one branch, with the Tema branch as its main office, the main fact from Exhibit ‘AA’ (appointment letter), was to manage and operate the Takoradi branch for the Plaintiff’s stevedoring services at the Harbour. This to the court, does not or must not require any special agreement whatsoever. This must form part of the Defendant’s routine work. (See Exhibit ‘AA’(letter of appointment). The issue that arises is whether or not indeed and in fact, the parties did agree to use the proceeds of any particular or specific work undertaken or service provided by the Plaintiff at the GPHA, Takoradi for the purpose of paying the Defendant his entitlement. The position of the law is that he who asserts must prove same. Also, the law follows the common sense approach which means that, the burden of providing ALL facts essential to any claim lies on the person who is making the claim. See: a) Barkers – Woode v. Nana Fita (2007-2008) 2 SGCLR 879 b) Abbey & ors v. Antwi (2010) SCGLR 17 c) Enekwa & ors v. Knust (2009) SCGLR 242. These case laws are founded on Sections 11 and 14 of the Evidence, Act, (NRCD 323). In this case, it is the Defendant who is making the claim; and asserting a fact. Thus, the burden of producing the required evidence lies on him to produce same. See In re Ashalley Botwe Lands; Adjetey Agbosu & ors v. Kotey & ors [2003 -2004] SCGLR 420 @ 444. It is the evidence that DW1 testified to corroborate the Defendant’s position on lobbying the GPHA to allocate a vessel for the Plaintiff to work. From the totality of the DW1’s evidence, it was the prompting of the Chief Executive Officer of the Plaintiff that influenced him to lobby for the Plaintiff company. The court finds it quite difficult to be impressed with the assertion and claim of the Defendant to the effect that there was an agreement with the Plaintiff company for the Defendant to procure a vessel for the Plaintiff to provide stevedoring services so as to obtain cash to pay the Defendants’ entitlements specifically. And why do I say so? The Defendant claimed by the evidence to have performed exceedingly well on his job, in his defence and in cross-examination, for which reason, he was entitled to an “expat” allowance for which he has fought up to the present. Even when the Plaintiff sought to suspend and/or cancel the “expat’ allowance, from the evidence, the Defendant, now a “Lone Ranger”, as per the records in the company of the Plaintiff has resisted same arguing that if the fortunes of the Plaintiff have gone down, his branch at Takoradi has been performing creditably well for which reason he insists on his “expat” allowance. The following are just a few to support the above. Cross-examination of Defendant. So if the Defendant touts of performing exceptionally at the Takoradi Branch, why this particular lobbying, and particularly so when the Plaintiff has been given the option to choose one of the two (2) outfits to operate and for which the Plaintiff has settled on Tema as a result of which the staff in Takoradi have had to be laid off by way of redundancy? An “agreement” to me, and in this instance, the Defendant’s claim of reaching an agreement with the C. E. O of the Plaintiff company, is a form of contract which must meet all the important ingredients of a valid contract not forgetting its sanctity, certainty, intentions, voluntary and free entry into the contract among others. See: a. Magna Terris Ltd v. Berthold Paa Joe Gadagubi (2017) 115 GMJ 268, C. A. b. R. v. High Court, Cape Coast, Ex. Ghana Cocoa Board (Apotoi II–Interested Party) [2009] SCGLR 603 @ 619 c. Koglex Ltd v. Field [2009 – 2010] 2 GLR 437, SC. d. Madina Shopping Mall Association v. Rosehill (Gh) Ltd [2012] 39 MRG 81, S. C. According to the Plaintiff’s evidence, GPHA had given the Plaintiff an opportunity to decide which of the two (2) outfits of the Plaintiff intends to use to operate its stevedoring services. And it opted for Tema. Therefore, naturally, the Plaintiff’s operations in Takoradi would have to end. That is why it laid off its Takoradi staff through redundancy. It therefore baffles my mind if any reasonable person would lobby to have work to do whilst its staff are being laid off. Even, from the evidence, and according to the Plaintiff, the volume of work at Takoradi Port reduced after the Ivorian crises, the work load at it said Port reduced which affected the Plaintiff’s operations and its attendant revenue generation power – hence the suspension of the “expat” allowance and its eventual cancellation. Therefore, in spite of all of the above, one would wonder if the Plaintiff would still agree with the Defendant, who has had to, for the best part of his 16 years of good services at the Takoradi Port for the Plaintiff be called upon, agree with him to carry out a special operation and render special service solely for the purpose of doing a job which he has been doing for over 16 years so as to use the proceeds solely to pay for the Defendant’s entitlements. This court is not convinced on this in spite of the evidence of DW1. I find the evidence of DW1 as only self-serving, in the circumstance of this case. The Plaintiff’s pleadings and evidence was to the effect that upon a meeting with the C. E. O of the Plaintiff’s “HE FURTHER TOLD ME TO LOOK FOR A VESSEL TO WORK WITH AT TAKORADI AND USE THE PROCEEDS TO PAY MY ENTITLEMENTS” (See paragraph 32 of the Defendant’s evidence). Further, in paragraph 42 thereof, the Defendant had this to say. “I shall say that as a result of the outcome of the meeting with the C. E. O on 13/01/2018, I worked tirelessly through relentless lobbying to get a vessel for the Takoradi Branch of the Plaintiff company, in order that proceeds could be used to satisfy some if not all of my outstanding entitlements due me from the Plaintiff company owing to the agreement reached at the said meeting and other assurances from the C. E. O”. In the cross-examination of the Defendant, this is what the Defendant said to questions: Q: So, I put it to you that the Ghana Ports and Harbours Authority who is still the authority that allocates ships to stevedoring companies started allocating many more ships to the stevedoring companies. And that meant more earnings as a result of which they introduced the expat allowance for the managers? A: That is not correct. GPHA allocates vessels to the private stevedoring companies according to the number of vessels that come to the port. Q: We are saying that there was a surge in the allocation of vessels to stevedoring companies including the Plaintiff and the Plaintiff found it fit to introduce the expat allowance? A: I disagree with you. After the Cote D’lvoire war, there were still vessels coming to the two (2) Ports. And each stevedoring company had a fair share. Q: In addition to GPHA between one (1) to three (3) months before a ship was allocated to the Plaintiff for the clearing of the cargo? A: It has been happening all along. If there are no vessels, there are no allocations. Q: And the overhead and current expenses of the Plaintiff company keep running? I disagree. So, because of this the Plaintiff find it difficult to pay the expat allowance, I put it to you? A: Q: A: I disagree. After the Cote D’lvoire war, Takoradi port was making $500,000.00 US dollars a year for the Plaintiff. Q: I put it to you that the $500,000.00 USD that you have mentioned is not true as monies being made at the port of Takoradi for the Plaintiff and it is an afterthought to enhance your case? A: I am telling the very truth. I have my Exhibits and my witness statement to support this. Q: And subsequently the Plaintiff paid $1,000.00 USD in fixed installments to being the total to $5,000.00 USD? Correct. The amount owed you after that payment on 1/6/2015 when the expat allowance was cancelled was $1,550.00 USD? A: Q: A: The balance is correct. It was $1,550.00 but the expat allowance was not cancelled. It was suspended. Q: I put it to you that once the main company operating you are still in the employment of the Plaintiff? A: On 13/01/2016, the CEO invited me for a meeting. And he told me that the Takoradi office will be closed down. So, I should prepare for the close down of the office. He said I should look for a vessel to work with. And he would pay me. He added that the board chair had agreed to that. The meeting was less than 30 minutes at Tema office. I have deliberately reproduced a quite comprehensive cross-examination of the Defendant for a purpose – for more informed analysis and appreciation of the matter in so far as the work of the Defendant and the operations of the Plaintiff company at Takoradi Port are concerned. Exhibit “AA” is the Letter of Appointment of the Defendant dated August, 7, 2002 where the Defendant worked for the Plaintiff in the capacity as Branch Manager for about 17 years, according to the Defendant. Exhibit “AA” also contained the salary and service conditions of the Defendant. Part of Exhibit “AA” provided as follows: “The nature of your job request that you will be on call 24 hours a day and therefore you should make yourself available at all times to respond to such calls. Your areas of responsibilities include but not limited to: • Ensure that the company is represented at the Berthing meetings of at the GPHA, Takoradi and that the company is allocated with its fair share of jobs. There is no record of the Defendant accepting the appointment of Exhibit “AA”. But subsequent to the letter of appointment (Exhibit AA), the Defendant worked for the Plaintiff for about 17 years. It therefore could be concluded that he accepted the offer. The evidence also supports same. From the above, it could be reasonably concluded that whether the Plaintiff CEO requested its Branch Managers to secure jobs or service or whether there was an agreement between the Plaintiff on the Defendant to the effect that monies paid by GPHA for services rendered to it should be used to defray the Plaintiff’s indebtedness to the Defendant is immaterial. The Defendant, by his own letter of appointment as above reproduced, required of him to ensure that the Plaintiff has its fair share of the jobs allocated to it by GPHA. From the above cross-examination also, the Defendant seemed to tout his achievement of generating so much revenue for the Plaintiff and even after the Ivorian crises, this did not affect the Plaintiff’s revenue so much so far as the Plaintiff’s Takoradi Branch’s work and workload and moreover were concerned. I therefore very respectfully disagree with the submission of Counsel for the Defendant that the Defendant was indeed authorised by the CEO of the Plaintiff company to look for vessel for the Takoradi Branch of the Plaintiff company before the proposed closure of that branch so that the proceeds from any such vessel could be used to defray the company’s outstanding indebtedness to the Defendant and other staff at the Takoradi Branch of the company. Also, perusal of the evidence before the court, I find that whatever agreement that the CEO and the Defendant had, if any at all, was just to encourage the Defendant bolster his work as it formed part of the Defendant’s core duties and responsibilities, as per Exhibit “AA” (his letter of appointment). After all, it is the duty of a leader (int his case the CEO of the Plaintiff), to always encourage his immediate supervisors to be proactive so as to be confident and boost the morale of his workforce for better results. Therefore, on the above issues and per the standard as set by Section 10(1) of the Evidence Act, 1975, (NRCD 323), Sections 11(1) and 12(1) thereof, and being further fortified by the cases of Zabrama v. Segbedzi [1991] 2 GLR 221 @ 246, per Kpegah JA (CA); Serwah v. Kesse [1960] GLR 227, Holding 1; Fennuku & anr v. John Teye & anr [2001 – 2002] SCGLR 985 and the more recent authority of Equity Assurance v. Palme Green Int. Ltd [2019] 34 GMJ 57, CA, the Defendant failed to discharge the burden on him so to do. I will therefore hold the above in favour of the Plaintiff as against the Defendant. WHETHER OR NOT THE EXPAT ALLOWANCE DENOMINATED IN DOLLARS FORMED PART OF THE DEFENDANT’S COMPENSATION AT THE TIME HE WAS ISSUED A CONTRACT OF EMPLOYMENT BY THE PLAINTIFF IN 2002: The Plaintiff’s case against the Defendant is that the Defendant being an employee of the Plaintiff, withdrew from the Plaintiff’s Bank account at Prudential Bank, Takoradi Branch without authority/mandate which, according to the Plaintiff amounts to conversion of same to his use. The defence of the Defendant is that the Plaintiff has been indebted to him and comprised of “expat” allowance denominated in dollars, accrued salaries and unpaid outstanding leave allowances as a result of which the Defendant laid claim to a part of the amount lodged in the said Account of the Plaintiff to which the Defendant was the sole signatory. The Plaintiff completely denied in his pleadings via the reply The Plaintiff, having denied that the “expat allowance” formed part of the Defendant’s compensation at the time he was issued a contract of employment by the Plaintiff in 2002, and on the authority of In re Presidential Election Petition; Akuffo Addo & ors (No. 4) v. Mahama & ors (No. 4) [2013] SCGLR 73, the burden of proof and indeed persuasion was on the Defendant to prove his claim against the Plaintiff. This was particularly so as the Defendant’s claim has been completely denied by the Plaintiff that the “expat” allowance formed part of the allowance of the Defendant. According to the Plaintiff, and from Exhibit “AA and AA1” being the letter of employment and the salary and conditions of service, it never included any “expat” allowance in the Defendant’s contract of employment. According to the Plaintiff, it introduced the expat allowance denominated in dollars following the crisis in La Cote D’lvoire when lots of ships were docking in both Tema and Takoradi Ports of Ghana, leading to increase in volume of activities at these two (2) Ports of Ghana (See Plaintiff’s evidence paragraph 9 and 10). According to the Plaintiff, following end of the crisis in La Cote D’lvoire, the expat allowance was no longer sustainable and so same was suspended and eventually cancelled. According to the Plaintiff, the expat allowance was a motivation on temporary basis and only to induce the hard work and nothing else. The Defendant admitted in paragraph 7 of his evidence (See witness statement) that, per Exhibit 11 (Exhibit “AA1”), it did not contain all the details relating to his salaries and other emoluments such as the “expat allowance” payable to the Defendant. The Defendant added that the situation of the other entitlements not captured in Exhibit 1 is so because, a lot of the benefits and other lawful entitlements managers of the Plaintiff company receive emanated from the long-held conventions and practice of the company were not so captured in Exhibit 11. Indeed, per paragraph 8 of the evidence of the Defendant, he maintained as follows: “8: I shall say that upon receipt of my Appointment letter, I worked meritoriously to the admiration of the C. E. O and the Board of the Plaintiff company and my cedi salaries in addition to all other entitlements were paid promptly without arrears except for the “expat salaries” which have been arrears from the time of my appointment up until 2014 when the company decided to take certain unilateral steps in respect of same”. “9: I shall aver that as a Branch Manager of the Plaintiff company, my salary had a cedi component and a Dollar component which for purposes of taxation, the Plaintiff company termed as “expat payment” in addition other entitlements such as Leave Allowance among others. In denial, the Plaintiff supported his position with Exhibits “AA” and “AA1” (Defendant’s Exhibit 1), further the Plaintiff gave reasons for the introduction of the “expat allowance” and its suspension and eventual cancellation. And supporting his claim for the “expat salaries” as he preferred cancelling same, the Defendant also relied partly on Exhibit “1” and also the sale of his official vehicle to him by way of settlement of the part payment of expat allowance. The Plaintiff, represented by Lawrence Atale, testified to the effect that the Defendant was not entitled to expat allowance. This is his cross-examination on the subject: Q: A: Q: A: The Defendant was entitled to expatriate allowance, is that not correct? That is not correct. And the expat allowance is denominated in dollars? That expat allowance is not in the Defendant’s condition of service. It is not stated in his employment letter. The above is the direct conflict with the evidence of the C. E. O of the Plaintiff thus: Q: The Defendant as the manager had his salary in cedi and Dollar components? A: That is not correct. He was only being paid cedis. The expats allowances, which was some kind of motivation on a temporary basis was only to induce their hard work and nothing else. Q: A: Q: A: Q: The Dollar component was known as the expat allowance? Yes, that was the name we coined. The expat allowance was paid to all management including the Defendant? Yes, at the time, a scattering of them. When was the Defendant employed by your company? A: Q: Somewhere around June 2002. And he had been enjoying the cedi and Dollar component known as expat until his exit from the company? A: That is not correct. A careful look at his letter of appointment will not reveal any Dollar component. That only arose when Cote d’lvoire had their maritime crisis and all their containers were being diverted to Tema or Takoradi and with that inundation of work, management introduced the expat to induce their hard work. Q: A: Which period are you talking about, which year? My memory is a bit hazy but maybe 2004-2005. I cannot be precise. There seems to conflicts in the Plaintiff’s case on this issue of expat and specifically when it was introduced. But one clear point is that the Defendant did benefit from the expat allowance. And the Plaintiff has been consistent that the expat allowance did not form part of the Defendant’s conditions of service. It is trite that where there is a conflict between documentary evidence as against oral evidence, the courts prefer the documentary evidence to the oral one. Exhibits “AA” and “AA1” (exhibit 1) being the employment letter and the salaries and conditions of the Defendants, I find, did not includes the expat allowance denominated in dollars and so same did not form part of the Defendant’s compensation at the time of the contract of employment by the Plaintiff in 2002, and I so find and hold. WHETHER OR NOT BEFORE THESE PAYMENTS BY THE DEFENDANT TO HIMSELF AND THE EMPLOYEE, THE PRACTICE WAS THAT THE PLAINTIFF WOULD TRANSFER MONIES FROM SALARIES PAYMENTS FROM EITHER THE ECOBANK ACCOUNT AT TEMA OR FROM ITS PRUDENTIAL BANK ACCOUNTS AT TEMA, INTO THE PRUDENTIAL BANK ACCOUNT, TAKORADI; AND WHETHER OR NOT THE DEFENDANT SOUGHT AUTHORISATION FROM THE PLAINTIFF BEFORE PAYING HIMSELF AND ANOTHER EMPLOYEE OF THE COMPANY THE AMOUNT OF GH¢213,000.00 WHICH HE WITHDREW FROM THE PRUDENTIAL BANK ACCOUNT OF THE PLAINTIFF IN APRIL, 2018: It is the Plaintiff’s case that until the transaction of Gh¢231,000.00 was paid by GPHA to the Plaintiff through its Takoradi Bank Account of Prudential Bank, the practice was that the Plaintiff would transfer monies for salaries payments from either the Ecobank Account at Tema, or from its Prudential Bank Accounts at Tema, into the Prudential Bank Account, Takoradi. These are captured in paragraphs 17, 24, 25, 26, 27 and 28 of the Plaintiff’s evince. And the Defendant did not deny the above. The following cross-examination of the defence supports the above: Q: So, when we talk about emoluments or salaries you are admitting that as far as one voucher must come from the Head office indicating what salary together with what allowance must be paid to each employee before you effect payment? A: Correct. Q: I put it to you that though you were the sole signatory to that account, every expenditure from that account will not happen until you have gotten an approval on the CEO? A: That account is an expenditure account. Any money that comes here is for me to settle the company’s debtors and send a monthly report to the head office. And that is exactly what I did. Q: A: You should have sought prior approval from the CEO of the Plaintiff? That is not correct. Further the Defendant did admit in cross-examination and as particularly captured in Exhibits AA7 (b), (b1) and (b2) being salary vouchers that the said processes have to go through an emolument of staff/employees before payment by the Defendants in the Takoradi Branch. Further, the Defendant in paragraphs 38, 39 and 40 of his evidence stated that apart from salary vouchers for staff of the Takoradi Branch, which were printed in Tema and sent to Takoradi, all expenses from Takoradi Branch were made in Takoradi and he was in charge and did not need any authorisation from the CEO with regards to disbursements and it was because he was the sole signatory after which he would prepare statement and transmit same to Tema to the Plaintiff. (See Exhibit 11 on written resolution of the Directors of the Plaintiff company authorising the Bank at Takoradi to act on any instruction so given to the account. By Exhibit 11, the Defendant seemed to have had an unfettered access to the Plaintiff’s Bank Accounts at Takoradi. Therefore, in my view, per Exhibit 11, it is immaterial whether Defendant technically, needed to seek authorisation from the Plaintiff before giving effect to transactions on the account. By extension therefore, in my view, the Defendant by Exhibit 11, could act in any way possible in so far as it related to the Plaintiff’s business. Therefore, I find that aside the practice of the Plaintiff transferring monies to the Defendant from either the Ecobank Account, Tema or the Prudential Bank Account, Tema, the Defendant per Exhibit 11, had the power and authority to transact business with the Plaintiff’s account at Takoradi as he was the sole signatory. I also find that per Exhibit 11, even though the Defendant from the evidence claims to have obtained the authorisation from the Plaintiff before paying himself and another employee of the Plaintiff company, per Exhibit 11, he did not technically need to obtain any such authorisation. Regarding the withdrawal of the amount of Gh¢231,174.93 from the Plaintiff’s Takoradi Bank Account, this court does not find any evidence that the Defendant per the above, and particularly Exhibit 11, had to seek authorisation before paying himself and another employee. This relates to the internal procedure of the parties and the lapses therein contained which resulted in such situation. I must venture to state that the fact and indeed evidence, from the records and Exhibits, particularly Exhibit 11, that the defendant did not need authorisation from the Plaintiff, per Exhibit 11 (which had technically authorised the Defendant to so do), does not in any way mean that the Defendant shall be justified in any way or manner to transact any business with the Account in issue. The account actually is for the Plaintiffs but the Defendant is only a signatory who has been duly authorised to solely transact business for the benefit and in the best interest of the Plaintiff company who is the employer of the Defendant by which virtue the Defendant is the signatory (sole). But frankly, the second part of this issue on Gh¢231,174.93 of withdrawal relates to the claim of the Plaintiff thus: (i) Recovery of the sum of Gh¢231,174.93.00 being the sum which the Defendant withdrew from the Plaintiff’s account without authority and mandate and converted same to his use. This judgment has in this issue settled the first part of the claim to the effect that, per the practice and more importantly, Exhibit 11, Exhibit 11, the Defendant had the authority and mandate to withdraw any amount including the amount in issue from the plaintiff’s said Bank in Takoradi he being the sole signatory. Regarding the said sum’s use is what this court now has to deal with ether it is conversion or not. It is not in dispute that the amount of Gh¢231,174.93 belongs to the Plaintiff for services that the Plaintiff company rendered to GPHA, Takoradi Port. It is also not in dispute that the Playoff is indebted to the Defendant at least from the evidence and as particularly admitted by the Plaintiff, to the sum of $1,550.00 USD, it does not owe the Defendant any amount. The Defendant on the other hand contends by his counterclaim that the Plaintiff is indebted to him including severance awards, leave claims and others for which reason he has unilaterally used the said amount including paying one of the redundant staff of the Plaintiff in the person of Kwaku Adjei Sarfo. And so, the action of his cannot be a conversion. Conversion is a tort of strict liability. That is, it is irrelevant to the liability of the tortfeasor whether he or she is aware of that fact or not, or is at fault. Conversion is the wrongful interference with goods of another, for example, by taking, using or destroying them, inconsistent with owner’s right of possession. In the Supreme Court case of Standard Chartered Bank v. Nelson [1998 – 99] SCGLR 810 @ 817, per; Hayfron Benjamin JSC, conversion was meant to be as follows: “Conversion, then is the wrongful possession of goods or chattel belonging to another and use thereof by that other”. Also, in T. K Serbeh & Co v. Mensah [2005 – 06] SCGLR 341 @ 352, per Dr. Date Bah, JSC, it was stated as follows: “…@354. But whenever, as in the present case, chattels, belonging to one person are appropriated to the use of another, the proper action is in conversion…”. Indeed, such is the modern situation that where in normal commercial relationships, goods or chattels are wrongfully taken possession of then the least application of the goods or chattels to any purpose whatsoever will amount to conversion. It is also the case that there can only be a conversion if there is intentional conduct resulting in an interference with the goods of the Plaintiff – See Asaby v. Tolhurst [1937] 2 K. B 242. Also, it has been held that a refusal to surrender goods upon lawful and reasonable demand is a conversion. (See Baldwin v. Cole [1704] 6 Mod. Rep. 212. The Defendant in cross-examination had this to say in respect of the sum of Gh¢231,000.00. Q: I put it to you that on the 6/4/2018 before you prepared the said expenditure, you had already withdrawn the GH¢231,174.93 from the said account? A: Correct. If I do not spend the money, I cannot prepare statement. See also: Yung Dong Industries v. Roro Services [2005 – 2006] SCGLR on the subject of conversion. As stated earlier on this issue, the evidence is that the Account into which the amount of Gh¢231,000.00 was lodged belonged not to the Defendant, but rather the Plaintiff company, and for work done not by the Defendant, but the Plaintiff company. Whether the Defendant had the right, as the sole signatory to the said Account, by virtue of Exhibit 11, or not cannot in any way change the fact that there was a conversion on the part of the Defendant. So I find, that indeed therefore, from the evidence, the Defendant converted the sum of Gh¢231,000.00 which the Defendant withdrew from the Plaintiff’s said Account. Also, the evidence, as admitted by the Plaintiff is that it is indebted to the Defendant in the sum of Gh¢1,550.00 USD. This is the remainder of the payment of “expat allowance” due the Defendant which the Plaintiff admitted in the pleadings and in evidence. The law is that if an opponent admits a fact (material) which is advantageous to a party, no new evidence is led to support same. See: a. S. O Ablakwah & anor v. J. O. Lamptey & ors [2013 – 2014] 1 SC GLR 16 b. Danielli Construction Ltd v. Mabey & Johnson Ltd [2008] 15 MLRG 54, S. C. c. Kusi & Kusi v. Bonsu [2010] SCGLR 60. “Where advisory of a party has admitted a fact advantageous to the case of that party, what better evidence does the party need to establish that fact than by relying on the admission of his opponent. This is estoppel by conduct.it is a rule whereby a party is precluded from denying the existence of some state of facts which he had formally asserted” - See In Re Asere Stool; Nikoi Olai Amontia V, etc. v. Akontia Oworsika III etc. [2205 – 2006] SCGLR 637 @ 656. The Plaintiff having admitted the cedi equivalence of $1,550.00 USD as its indebtedness to the Defendant, it naturally stands to reason that the Plaintiff shall recover the said sum of Gh¢231,000.00 from the Defendant less the said cedi equivalence of $1,550.00 USD. On WHETHER WITH THE DISMISSAL OF THE PLAINTIFF FOR GROSS MISCONDUCT FOR THE PLAINTIFF COMPANY HE WAS ENTITLED TO ANY COMPENSATION AND/OR SEVERANCE PACKAGE, the Plaintiff in his reply to the statement of Defence In paragraph 36 thereof averred thus: “Plaintiff denies paragraph 31 of the statement of defence and says the Defendant was suspended, per the letter dated 12th April, 2018 and on 17th June, 2020 was sent a letter requesting him to report at the Head office, Accra for resignation pending investigations into the subject matter of the conversion of Plaintiff’s money and following his failure or refusal to do so he was dismissed summarily for gross misconduct by a letter dated 16th July, 2020”. The above is in response to the Defendant’s defence in paragraph 31of the statement of defence thus: “ that the company suspended the Defendant per the letter dated 12th April, 2018 and on 17th June, 2020, was sent a letter requesting him to report at the Head office, Accra for reassignment pending investigations into the subject matter of the conversion of Plaintiff’s money and following his failure or refusal to do so he was dismissed summarily for gross misconduct by a letter dated 16th July, 2020”. The Plaintiff supported the above pieces of evidence with Exhibits “AA9”, AA10 and “AA11” being suspension letter and also are assignment and dismissal letters respectively During the cross-examination of the Defendant, this is what transpired: Q: I put it to you that the monies you took with respect to your leave arrears without approval was a gross misconduct on your part? A: I disagree with you. I worked with the Plaintiff company for 17 years without a single verbal warning or auditors querying me. So, I do not see why he says I acted in a misconduct. The CEO wanted me to go as a pauper. Someone stayed for 5 years. And he was paid all that he was entitled to. Q: And you decided to abrogate the said payment plan and rather pay him the rest of his entitlement without seeking approval from the CEO of the Plaintiff? A: Yes, I paid him because the Plaintiff defaulted for so many months. And the money which hit my account, I used part to pay him. The company had closed down and it is my obligation to clear all debts of the company. I had no ceiling on the expenditure of that account of which I am the sole signatory. Q: A: I put it to you that that is a gross misconduct deserving of a dismissal? That is not correct. I was not dismissed from the company. Counsel for the Plaintiff submitted on this issue that the dismissal of the Defendant was a formal confirmation of the fact that the Defendant was no longer with the Plaintiff company as it had been on record that the Defendant RESIGNED without prior notification from the Plaintiff company when the Defendant assumed duty as the CEO of the stevedoring company by name Deep Sea Maritime company on 10/12/2018. The following cross-examination may help resolve this issue in some way: Q: On 10/12/2018, you became the CEO of Deepsea Maritime Ltd (Exhibit AA8)? True. Which means in effect that on 10/12/2018 you have resigned from the Plaintiff company? A: Q: A: I was given a leave letter to start from March 2018. I received another suspension letter in April 2018. From April, 2018 up to December, I received no salary from the Plaintiff company. And I attained my compulsory retirement age in November, 2018. So, I do not see anything barring me in forming a company. This is because my name was not in the Plaintiff’s establishment. Counsel also submits that by 10/12/2028, the Defendant had severed his relation with the Plaintiff company and so cannot be asking for the payment of severance. Contesting, Counsel for the Defendant submitted that, the Takoradi Branch closed down on 30/3/2018 and this supports the Defendant’s claim that the workers at the Takoradi Branch of the Plaintiff’s company were effectively rendered redundant following the decision to close down that branch. Counsel went on to submit that the Plaintiff had at all times material intended to get rid of the Defendant through surreptitious means and thus avoid paying the Defendant any redundancy payment lawfully due the Defendant. The following cross-examination of (DW1 CEO of the Plaintiff) may help resolve this issue thus: Q: The Branch Company in Takoradi after the 13th January 2018 stopped working because you had chosen the Tema Port? A: That is not correct. All the stevedore Companies were given up to April, 2018 to leave with bag and baggage so within January and March, there was room for some work. The representative of th4e Plaintiff (Atale) also had this to say in cross-examination thus: Q: So, the Defendant and other workers here in Takoradi had no stevedoring work to carry out? A: The Company was to operate up to the end of 2018. Once again, there is some contradiction in the Plaintiff’s case on the way of its operations in Takoradi and around that time and the way the company and its executives handled the Defendant. Counsel submitted that the Plaintiff only pressed criminal charges against the Defendant on the charge of unjustifiably stealing and appropriating monies. Counsel submitted that there is no evidence of gross misconduct on the part of the Defendant to warrant his dismissal from the Plaintiff’s company. Counsel submitted that Exhibits AA10 and AA11 both on suspension and dismissal of the Defendant respectively are schemed to deny the Defendant his entitlement and what is lawfully due him. I am very much inclined into agreeing with the submissions of Counsel for the Defendant on this issue of dismissal of the Defendant for Gross Misconduct. And I am not convinced at all by the submission of Counsel for the Plaintiff on this. In the first place, the Defendant maintained in his evidence and in cross-examination that he was in the employment of the Plaintiff until his retirement in November, 2018. In his cross-examination, this is what he offered: Q: A: I put it to you that that is a gross misconduct deserving of a dis missal? That is not correct. I was not dismissed from the company. In this case, the Plaintiff did not plead that the Defendant has been dismissed in the statement of claim. It was rather the Defendant who demanded his entitlement that the Plaintiff, in his reply averred that the Defendant had been dismissed from the Plaintiff’s employment. S. 15 of the Labour Act, 2003 (Act 651) deals with forms for termination of employment. Indeed, S. 15 (e) (iii) makes provision for Grounds of termination of employment on PROVEN MISCONDUCT OF THE WORKER. That is by the employer because of the inability of the worker to carry out his or her work close to (iii) proven his misconduct of the worker. In this instance, since it is the Plaintiff who is asserting a point as cleverly denied by the Defendant, it is the Plaintiff who has to prove the point as per sections 10, 11, 12 and 14 of the Evidence Act (supra) as it is he who bears the burden of persuasion. It has been held that dismissal is to accord with the Terms of Employment and the Collective Bargaining Agreement (CBA). In the Supreme Court case of George Akpass v. Ghana Commercial Bank Ltd [2021] DCSL 10760 at page 15 - 16 per Amegatcher JSC, it was held thus: “We have no hesitation in stating that where a worker is dismissed summarily and the employer cannot justify that the dismissal conforms with the terms of the contract of employment, the dismissal would be wrongful and the courts would be clothed with power to strike down any such dismissal of a worker which is contrary to the CBA. That is how Ansah JSC explained it at pages 794 – 795 in Kobi v. Ghana Manganese Co. Ltd [2007-2008] SCGLR 771”. It was time the “Traditional rule” epitomized by Aryee v. State Construction Corporation (supra) was re-considered because it had the potential of resulting in oppression by the employer and creating docility in the employee. With the fear of losing his job at any time depending on the whims and caprice of his employer who may dismiss him at will, staring at him perpetually, the worker enjoyed no security of tenure. He would become a malleable tool in the hands of his master and do his bidding…” The said case continues, per Amegatcher JSC thus: “…However, his consolation was that a collective agreement may require that the employer could only terminate an employment; upon certain contingencies, namely, the employee being found guilty of the offence in a schedule or offences in the collective agreement; or the laws of the land or statute regulating employment in the land for the time being or declared redundant under special conditions. In the same way if the contract of employment vested the employer with the right to dismiss a worker and the employer acted on that power based on justifiable evidence, the court will uphold the dismissal as binding based on terms negotiated by the parties in their CBA under S.105 of the Act 651, unless the contract is unconsciousable, i.e. severely one-sided and unfair to one of the parties that it shocks the conscience and it is thus deemed unenforceable. This is in consonance with time-tested common law strong rule of freedom of contract”. Again, analysing the differences and similarities of Termination and Dismissal, the Supreme Court in George Akpass v. GCB (supra) per Amegatcher JSC stated thus: “…Termination may not have reason assigned while because of the sharp and corrosive nature of dismissal reasons are assigned for the disengagement. Dismissal is usually punitive in nature while termination is not…” In the case of Alex Onumah Coleman & David Koomson v. Newmont Ghana Gold [2021] DCSL at page 11 per Honyenuga, JSC on the validity of summary dismissal following hearing procedure in CBA, stated thus: “…it is trite that once an employer followed the procedures as enshrined in the contract of employment such as the CBA and follows the mandatory requirements as the hearing under the CBA it gives a summary dismissal validity. Also, in Opare Yeboah v. Barclays Bank Ltd [2011] 1 SCGLR330 @ 332, the Supreme Court stated thus: “That the case Supreme Court would affirm the time-honoured proposition that the procedures outlined in contracts of employment such as the CBA in the instant case must be followed to give a summary dismissal validity”. In the Alex Onuamah Coleman case (supra), the court held thus: “…In the instant appeal, the Respondent duly interdicted the appellants, gave them a hearing at the Disciplinary committee level and which also made their recommendations as their contract of employment, the CBA required. A dismissal of the appellants was done in accordance with the CBA and therefore we hold that heh dismissal of the Appellants is not perverse but valid”. The sum of all of the above decided cases require that for an employee to be summarily dismissed, the natural justice rule requires, whether there exists a Collective Bargaining Agreement (CBA) or not, the person is given a fair hearing before the employer proceeds to dismiss any such affected employee. This was not done in this case. I therefore agree with the submission of Counsel for the Defendant on this issue. The Plaintiff sought to rely on Exhibit AA8, AA9, AA10 and AA11 to buttress his decision on the summary dismissal. In my view, I find the above as clandestinely schemed to avoid any responsibilities towards the Defendant. I am of the view that considering the conflicting explanations in the way the defendant was handled on the expat allowance, the redundancy of all staff in the Takoradi Branch and the letter requesting the Defendant to take up his accumulated leave from 2010 – 2017, at the time the Plaintiff has started or was about to start his redundancy of the employees of the Takoradi agency seem to me to be action executed mala fide and targeted specifically the Defendant for purposes best known only to the Plaintiff. I will therefore not hesitate to find and hold indeed that, upon the above, the Defendant’s summary dismissal, as captured in Exhibit AA11 was not effected bona fide. Per the above authorities, I am fortified to hold that same was wrongful and therefore of no effect and thus same cannot hold as against the Defendant for which reason the Defendant will not be entitled to any compensation. On WHETHER OR NOT THE PLAINTIFF COMPANY IS INDEBTED TO THE DEFENDANT BY WAY OF UNPAID SEVERANCE AWARD FOR 16 YEARS OF SERVICE TO THE PLAINTIFF, this issue arises from the counterclaim of the Defendant. The position of the law is that counterclaim is deemed to be a separate action on its own. See (a) Fosuhene v. Attah Wusu [2011] 1 SCGLR 273 (b) Osei v. Korang [2013] 58 GMJ S. C. (c) Abed Nortey v. African Institute of Journalism [2014] 77 GMJ 1, S. C. As such, the Defendant assumes the burden of proof being persuading this court why he assets the said claim. The Plaintiff denies the Defendant’s claim and indeed contends that the Defendant has been summarily dismissed and so is not entitled to any compensation whatsoever. This contention has been decided upon by this court in this judgment as unfounded and baseless and indeed found that the Defendant is entitled to any compensation and so the issue on any form of dismissal cannot be a bar to any such claim. The Defendant contends that the Plaintiff CEO called him to Tema and told him that the GPHA had directed as policy, that Plaintiff chooses only one of its two Ports to provide stevedoring services to GPHA. According to the evidence, the Plaintiff chose the Tema Port. Also, by the evidence, and from the CEO, the Plaintiff had up to April, 2018 to park bag and baggage out of Takoradi Port. This is what transpired when the CEO of Plaintiff company was in the dock: Q: The Branch Company in Takoradi after the 13th January 2018 stopped working because you had chosen the Tema Port? A: That is not correct. All the stevedore Companies were given up to April, 2018 to leave with bag and baggage so within January and March, there was room for some work. Counsel for the Defendant submitted that in view of the directive from GPHA which influenced the closure of the Plaintiff’s Takoradi Port office, the staff in the office became redundant and accordingly received their severance package excluding the Defendant. The Defendant in paragraph 31 of his statement of defence stated as follows: “3. The Defendant says that even presently the Plaintiff company is still indebted to him by way unpaid severance award as has been done for others over the years.” In paragraph 32 thereof, the Defendant counterclaimed as stated earlier in this judgment including: a. A calculation of the severance award entitle to Defendant of the 16 years of his service to the Defendant for the Plaintiff company. b. Payment of the said severance award less the Gh¢33,116.46 being withheld by the Defendant. Counsel for the Plaintiff had submitted in denying the Defendant’s claim that even if the Defendant’s claim had to be considered, he had to be so declared as redundant after which the parties would go into negotiations so as to have a severance award/package. Counsel submitted that since the Defendant had not gone through the above process, he was not entitled to any severance package/award. Since it is the Defendant who bore the burden of persuasion in this circumstance, Counsel for the Defendant referred the court to the Cape Coast case of Kobi & ors v. Ghana Manganese Co. Ltd [2007 – 2008] 2 SCGLR 771 @ 789 – 790 on redundancy which generally touched on the severance of employer/employee relationship; and the stage where same would arise. Counsel also refereed the court to S. 65 of the Labour Act, 2003 (Act 651) which deals with issues relating to redundancy and related payments. Counsel submitted that the Defendant, having worked for the Plaintiff company for over 16 years since 2002, the Defendant could be described as the founder of the Takoradi Branch of the Plaintiff company, as particularly confirmed by the CEO of the Plaintiff company (PW1) and the representative of the company – Atale). Counsel submitted, in spite of the contradictions in the Plaintiff’s claim of when the Takoradi Branch officially closed down, that the fact remained that the staff of Takoradi Branch of the Plaintiff’s company were effectually rendered redundant following the decision to close down the said Branch by the Plaintiff company. Counsel submitted by illustration that the Plaintiff company had at all material time intended to get rid of the Defendant through all surreptitious means and consequently avoid paying him any redundancy benefits lawfully due the Defendant. Counsel submitted that that Plaintiff orchestrated its action after the CEO’s meeting with the Defendant by claiming that the Defendant was still considered to be in the employment of the Plaintiff just to avoid the payment of any form of compensation by way of redundancy package. Counsel submitted that since 2010 up to 2018, the Defendant was not allowed to proceed on leave. Counsel also submitted that the Defendant whom the Plaintiff had claimed was still in its employment even after the closure of the Takoradi Branch was throughout the leave period was never paid. Counsel submitted that the Plaintiff already had its practices and convections on the payment of redundancy packages to employees as confirmed by the Plaintiff’s representative Atale in cross-examination in such situations. Counsel submits that in the circumstances of the evidence before the court, upon the closure of the Takoradi office in March, 2018, the fact that the staff had their redundancy packages save the Defendant and the failure of the Plaintiff to produce a cogent and convincing evidence to the contrary together effectively severed the relationship between the Plaintiff and the Defendant on the date that his branch was closed down by the Plaintiff company. Counsel submitted that the Defendant from the evidence and per the decided cases submitted in this court on redundancy has been able to establish a case that he is entitled to the right of his severance award from the Plaintiff in accordance with law, the custom and practise of the Plaintiff and in fulfilment of the dictates of the employment law of Ghana. It has generally been the practice that issues of terminations, dismissals and redundancies are captured in the CBA’s of companies. Therefore, in situations where some of these matters arise, parties any refer to the CBA and resolve their labour disputes. It is only in the absence of such CBA’s or conditions of service of parties that a reference or resort to the labour Act is made. In this case, there is no evidence that there is a CBA in the Plaintiff’s relations with its employees. This is supported by both the representative of the Plaintiff, PW1 (the CEO) and also the submission of Counsel for the Plaintiff touching on the processes and stages of redundancy and negotiations as this is not new to the Plaintiff at best of the evidence before the court. In the Labour Act, 2003 (Act 651), S. 65 has been devoted for redundancy. and for ease of refence, the section provides as follows: “65 (1) When an employer contemplates the introduction of major changes in production, programme, organisation, structure or technology of an undertaking that are likely to entail terminations of employment of workers in the undertaking, the employer shall “(a) provide in writing to the Chief Labour Officer and the trade union concerned, not alter than three months before the contemplated changes, all relevant information including the reasons for any termination, the number and categories of workers of workers likely to be affected and the period within which any termination is to be carried out; and (b) consult the trade union concerned on measures to be taken to avert or minimize the termination as well as measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment. (2) (a) severance of the legal relationship of worker and employer as it existed immediately before the close down, arrangement or amalgamation; and (b) as a result of and in addition to the severance that worker becomes unemployed or suffers any diminution in the terms and conditions of employment. (3) In determining whether a worker has suffered any diminution in his or her terms and conditions of employment, account shall be taken of the past services and accumulated benefits, if any, of the worker in respect of the employment with the undertaking before the changes were carried out. (4) The amount of redundancy pay and the terms and conditions of payment are matters which are subject to negotiation between the employer or a representative of the employer on the one hand and the worker or the trade union concerned on the other. (5) Any dispute that concerns the redundancy pay and the terms and conditions of payment may be referred to the commission by the aggrieved party for settlement, and the decision of the Commission shall subject to any other law be final. “66. (a) workers engaged under a contract of employment for specified period of time or specified work: (b) worker serving a period of probation or qualifying period of employment of reasonable duration determined in advance; and (c) workers engaged on a causal basis.” In NATIONAL LABOUR COMMISSION v. FIRST ATALANTIC BANK LIMITED [2020] DLSC 9924 at page 11, per KULENDI, JSC on S.65 (2) of the Labour Act, it was held thus: “From the language of S. 65 (2) above, it appears that the payment of “redundancy pay” is inescapable when redundancy is occasioned by one of three things. They are; 1. redundancy occasioned by the closing down of the undertaking; 2. redundancy occasioned as a result of the undertaking undergoing an arrangement; and 3. Redundancy occasioned by the entity undergoing an amalgamation. Where the legal relationship of an employer and employee is served as a result of a closed down, arrangement or amalgamation, the express language of S.65 (2) mandates that “redundancy pay” be paid to the affected employees.” Again, under Labour Law and on types of Redundancy, KULENDI JSC continues in the NATIONAL LABOUR COMMISSION v. FIRST ATLANTIC BANK (supra) thus: “In the case of the redundancy occasioned under S. 65 (1), the undertaking continues to exist and operate. There is also no change in ownership. The only difference maybe that as a result of the major changes in production, programme, organization, structure or technology of an undertaking, the competences of the employee may no longer be relevant in the area of work for which the worker was originally employed. it is our considered opinion that in cases where after the re-structuring the employee is given alternative employment within the same undertaking, it still amounts to termination since the contractual relationship, duties and obligations in respect of which the employee was initially employed would have been altered as a result of the major changes in production, programme, organization, structure or technology of an undertaking. (See Sections 12 and 13 of the Labor Act, 2003 (Act 651). However, depending on negotiation between the employer and the employee or the employee’s Labour Union, the finding of alternative employment for the potential ex-employee may suffice to mitigate the adverse effect of the constructive termination on the employee.” And more particularly for the case in point, Kulendi JSC, holding that Redundancy pay goes beyond the occurrence of events stated when S.65 of the Labour Act, stated thus: “It would in any event be unconscionable to imagine that the law maker intended that only redundancy occasioned under S. 65 (2) would attract redundancy pay. Having examined the languages of S.65 (1) of Act 651, we have come to the view that S. 65 (1) is rather expansive in its prescription of what an employee may do to cushion the employee against the advesers effects of the termination occasioned by redundancy. The prescription in one view may be the payment of redundancy pay of the provision of alternative employment or even both, depending on the agreement reached between the Labour Union of the employee and the employer.” Yet again, the Apex court held, per Kulendi JSC in the said case of NLC v. FIRST ATLANTIC BANK (supra) thus: “WE HOLD that Redundancy pay under S.65 (2) and S. 65 and (5) of the Labour Act as applicable to a person whose employment had been terminated under circumstances not involving a close down, arrangement or amalgation is also applicable to persons who are made redundant by virtue of the introduction of major changes in production, programme, organization, structure or technology of an undertaking. I have carefully gone through the evidence even though the case actually commenced by this court differently constituted, I find that several staff of the Plaintiff Company had Redundancy packages both in Tema and Takoradi Branches of the Plaintiff company. they were all by negotiations as required by law and under Labour Act. the Takoradi branch closure, from the above authorities fell under some of the situations listed by the above Supreme court case. Moreover, the Plaintiff as a result of the closure of the Takoradi Branch made the staff in the Takoradi office redundant save the Defendant. This was not denied by the Plaintiff. the position of the law is that failure to deny a material fact in cross-examination may amount to admission. See Kusi v. Bonsu [2010] SCGLR 60. Regarding the Defendant’s special circumstances, there seems to be more to this. In the first place, there has been a tango on the issue of “expat” allowance which has dragged on for some time between the Plaintiff and the Defendant. This is from the evidence particularly the evidence of PW1 and the Plaintiff’s representative admitting same resulting in meetings and sometime involving lawyers of the parties. Then in January, 2018, the evidence is that the CEO and the Defendant met in Tema whenupon the Defendant was told that the Takoradi office had to be closed down per the directive of GHPA. see the following of PW1 (CEO): Q: There was a meeting on 13th January, 2018 at Tema between the Defendant A: Q: A: Q: A: Q: and yourself? It could have been. And at that meeting, you informed the Defendant that Ghana Ports and Harbours Authority (GPHA) had informed all stevedoring companies to choose one of the Ports for operations? That is correct. We had received such notification from the GPHA. And at that meeting, you indicated that you had chosen Tema Port? That is correct. As at the time you took that decision, the company was owing staff including the Defendant and other expenditure as well? A: I do not recall the company owing the whole or any of the workers with the exception of Kwaku Agyei who had been declared redundant and some negligible figure of an amount owing the Defendant by way of an established or agreed figure. Q: The Branch Company in Takoradi after the 13th January 2018 stopped working because you had chosen the Tema Port? A: That is not correct. All the stevedore Companies were given up to April, 2018 to leave with bag and baggage so within January and March, there was room for some work. From the above, and from the horse’s own mouth (the CEO), there had been some staff made redundant in Takoradi Branch of the Plaintiff company and some amount owing to one of the affected staff, who, according to the evidence, was paid the outstanding difference, as admitted by the CEO, by the Defendant out of the lodgement of Gh¢231,000.00. Also, from the above cross-examination, the Takoradi office ceased operations by April, Exhibit “AA4” (Exhibit 7) is a letter dated 14/2/2018 titled “Annual/proportionate leave” and signed by the CEO of the Plaintiff company and addressed to the Defendant. The content of Exhibit “AA4” (Exhibit 7) is worth noting and considering. Paragraph 1 of Exhibit AA4 provides as follows: “Available records indicate that, you have outstanding annual leave days from 2016 to 2017” “Since the Labour Act enjoins employees to take their annual leave to promote good health and efficiency, you are respectfully advised to proceed on leave with effect from Thursday, March 1, 2-018 to Tuesday, December 4, 2016” “Your leave day would be in respect of your outstanding annual leave days for 2010, 2011, 2012, 2013, 2014, 2015 and part of your annual leave days for 2016, i.e. 187 (one hundred and eighty-seven) working days pus two (2) travelling days. You will resume work on Wednesday, December 5, 2018. “However, with reference to your high-profile status in the company as our Takoradi Branch Manager, you may be called back to address crucial issues in the course of the company’s activities whenever the need arises”. Exhibit “AA4” (Exhibit 7) speaks volumes particularly taking into consideration the background of the matter in dispute. And reading Exhibit “8” which is an acceptance (response) to Exhibit “AA4”, by the Defendant, to the CEO of the Plaintiff company, it makes better appreciation of the matter and the issue between the parties. Part of Exhibit “8” reads as follows: “You intentionally refused to allow me to enjoy the nine years annual leave because you needed my services during that period” “You have on three occasions promised me that you are going to pay my entitlements and terminate my appointment” “The first occasion was on Sunday morning, when my lawyer wrote to you” “On the second occasion, you called me to Tema on a Saturday and informed me about the closure of Takoradi branch by March 2018 and that Mr. Kanty is aware and has told you to pay my entitlements” “The third instance was on phone when you promised me that you were going for a trip in the Northern Region and when you return, you will settle me and terminate my appointment” “Now that the company is closing down from March 1, 2018, it means my appointment is terminated with effect from March 1, 2018. “A clause in my condition of service states: “on the termination of your appointment you will be entitled to accrued holiday pay on pro rata basis”. “Hoping you will make my exit from GGSC very peaceful and cordial without any acrimony, since I have been a slave to you for the past sixteen years. All the promises you made to me during that period not a single one was fulfilled but I stood in and uphold GGSL when Tema was in crisis”. The court in this judgment has earlier made a determination on Exhibits AA9, AA10, AA11 and the entitlement of the Defendant. Now, reading Exhibits “7” and “8” together, one gets a clearer picture and understanding of what has gone on between the employer and the employee in this case. Reading Exhibit 7 alone, one would wonder why an employer who has refused to allow an employee handling a sensitive role as the Defendant to go on leave for over seven (7) years all of a sudden turn 360o to request such a figure in the company to take almost a year’s leave? Secondly, having already called and sat down and informed the Defendant of the closure of a sensitive office like the instant one a month earlier in January of the closing of outfit two months later wrote to “force” him to proceed on almost a year’s leave, knowing quite pretty well that his outfit is being closed in March, 2018 and yet asking him to resume work in December 2018? The appointment letter of the Defendant was quite specific. “We are pleased to offer you appointment in our company as branch manager, Takoradi effective, 1st June, 2002…” “As head of the Takoradi branch, you will be reporting to the undersigned except otherwise directed, ……….. Takoradi Branch”. In my candid opinion, and just as found on Exhibits AA9, AA10 and AA11, Exhibit AA4 too was equally written to the Defendant so as to achieve a planned execution of the actions of the Defendant; and I candidly find same as having been executed and handled mala fide with an intention to overreach and outwit the Defendant who I find as asserting his rights in the face of the situation that he finds himself against this employer. I find that the Plaintiff found the Defendant a hard nut to crack hence the preparation of execution of plans to find an exit of the Defendant from the Plaintiff’s employment that would not be detrimental to the Plaintiff and at the same time deny the Defendant what is lawfully due him,. Exhibit AA4, AA9, AA10, AA11 support my findings and also supported by the contents of Exhibit “8”. I find on the authority of S.65 of the Labour Act (supra) on redundancy and on the above cited recent authority of NLC v. First Atlantic Bank Ltd (supra) that in the circumstances of the evidence before this court, the severance of the relationship between the Plaintiff and the Defendant comes or falls under the situation as captured by S.65 and also under the above cited authority for which the Defendant ought to be entitled to redundancy pay as he has been rendered redundant. The above is supported by the fact that the Defendant’s office was permanently closed down. The CEO of the Plaintiff personally called the Defendant and told him of the need to close same down as a directive for GPHA for this reason. According to the evidence, the staff in Takoradi office were made redundant save the Defendant and their severance package paid accordingly. Such was the situation for Kweku Adjei Sarfo who was still owed a portion of his severance package as at the time the Defendant converted the Plaintiff’s money in the sum known to the parties (Gh¢11,510.00 owed). The court notes that the Defendant was to retire in November, of the year (November, 2018). And yet, the Plaintiff ignored the said date and gave him several months of leave that the Defendant had not utilised even though the Defendant had not requested to take same up. Even at that stage, if the Plaintiff were acting in good faith, he would have used the occasion when he invited the Defendant to Tema to discuss all such matters on unclaimed leave and his redundancy package and/or his entitlements. This was never done. The evidence also is that, in sending the Defendant home for his unclaimed leave from March 1, 2018 to 4/12/2018, the Defendant was not paid. This is contrary to the provisions of the Labour Act (supra). By S.20 (1) thereof, the Defendant was entitled to “paid leave”. S. 20(1) of Act 651 “In any undertaking every worker is entitled to not less than 15 working days leave with full pay in any calendar year of continuous service.” Therefore, I direct that during the period of the leave of the Defendant, the Plaintiff shall pay the Defendant his leave as per his conditions of service in Exhibit AA and AA1 for the duration of his leave from March 1, 2018 up to December, 2018 (See Exhibit AA4) and Exhibit 9. I find from the evidence that in the dealings with the Defendant, the Plaintiff acted mala fide on his allowances and the Plaintiff planned to avoid any responsibilities. One cannot fathom why the Defendant was not given any hearing before his summary dismissal. The timing of the Defendant’s leave from 2010 to 2018 spanning over 187 working days, the Defendant’s reassignment and recall, suspension and ultimate dismissal were all handled by the Plaintiff just to overreach the Defendant. I find that technically, from the evidence, the Defendant was made redundant even before the purported summary dismissal seeking to frame the Defendant up without giving him any fair hearing. This is particularly so when one carefully considers Exhibits AA1, AA9, AA10, AA11, and the Defendant Exhibits 1, 2, 3, 4, 5, 6, 7, 8 and 9 which were all specifically designed by the Plaintiff against the Defendant so as to get rid of the Defendant from the employment of the Plaintiff by any means and at any cost. From the evidence, I find that the summary dismissal came up after the Defendant had received the letter to proceed on leave (exhibit “7”) and the Defendant in turn had reacted sharply per (Exhibit 8). I therefore hold from the evidence and upon the above that the Defendant, not having been treated fairly, and having worked for the Plaintiff for 16 years and having only 8 months to go on retirement, and having had his junior colleagues made redundant and having their respective redundancy packages, and his office having been closed down permanently, the Defendant was to be given his entitlement as captured in his conditions of service (Exhibit AA and AA1 and his demand for same in (Exhibit 8) as same is fairly and legally due him, together with all other and whatever is due to him in his capacity as the senior officer of the Plaintiff’s company. And I hold therefore that whatever is due the Defendant by way of his entitlements be given him and let him go in peace as he was due for retirement only later in that year after having worked for the Plaintiff for 16 years since 2002, according to the evidence. IN CONCLUSION therefore, I grant the Plaintiff’s relief (i) to the effect that the Defendant converted the amount of Gh¢231,000.00 being the Plaintiff’s money and the Plaintiff is to recover same from the Defendant Gh¢231,000.00 to pay a part of one. Also, since it’s admitted by the Plaintiff that the Defendant used part of the sum of Gh¢231,000.00 to pay a part of one of the ex-staff of the Plaintiff, the remainder of his redundancy package, same shall be deducted from the said amount to be recovered from the Defendant by the Plaintiff. Again, since the Plaintiff admitted owing the Defendant an amount of $1,550.00 USD, the Plaintiff shall pay the cedi equivalence of the said amount to the Defendant as the remainder of the expat allowance (same being outstanding since 2015). Also, the Plaintiff shall be entitled to interest on the said amount to be outstanding to the credit of the Plaintiff at the prevailing Bank rate from the date of this judgment until the final date of payment. The Defendant’s counterclaim also succeeds but as per the above on relief (a) of the counterclaim only and not on relief (b) which has been rendered otiose as a result of the above decision. Relief (c) of the counterclaim is dismissed as the Defendant could not prove same in the evidence. Again, the summary dismissal of the Defendant is held in this judgment as wrongful, unfair, effected mala fide and therefore null, void and thus hereby set aside as same has no legal effect on the Defendant whatsoever. The Defendant shall therefore be paid ALL of his entitlement on his relief (a) of the counterclaim, that is, be paid all of his entitlement to him by the Plaintiff. Also, the Defendant shall be entitled to pay during his leave as the evidence shows that he was not paid his leave from March 1, 2018 to 4/12/2018. There shall be no order as to costs. SGD G. K GYAN-KONTOH (JUSTICE OF THE HIGH COURT) COUNSEL: 1. AMERTOWOO FOR THE PLAINTIFF 2. B. ACKAAH GYASI FOR THE DEFENDANT. 54