GYIMAH VRS. WENOR (A2/57/23) [2024] GHADC 496 (24 July 2024)

IN THE DISTRICT COURT B SITTING AT AMASAMAN WEDNESDAY THE 24TH DAY OF JULY, 2024 BEFORE H/W ANNETTE SOPHIA ESSEL (MRS.) – MAGISTRATE SUIT NO. A2/57/23 MARTIN YAW GYIMAH PLAINTIFF VRS: MR. AGARDA ASAMPANA WENOR DEFENDANT INTRODUCTION: JUDGEMENT The wise words of Denning LJ. (as he then was) in the case of Combe v Combe [1951] 2 KB 215: “Where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. He must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration but only by his word.” The plaintiff by Writ of Summons filed in the Registry of the Court on 2nd November, 2022 hauled the defendant before the Court for the undermentioned reliefs: (i.) Recovery of Eighteen Thousand Cedis (GH¢18,000.00) only being two months’ salary Defendant failed to pay to the Plaintiff despite persistent demands. Page 1 of 16 (ii.) Interest on the total sum since September, 2015 till final payment and cost. (iii.) General Damages. Parties in this suit are employee and employer respectively. CASE OF THE PLAINTIFF: Plaintiff is a construction foreman resident at Achiaman in the Ga-West District of the Greater Accra Region of the Republic of Ghana. Defendant is a contractor resident at Amasaman. It is the case of the Plaintiff that somewhere in June 2015, the Defendant engaged his services as a construction site foreman for a project at Tatale in the northern region of Ghana. It was agreed between parties that Defendant would pay Plaintiff an amount of One Thousand Two Hundred Cedis (GH¢1,200.00) only per month as salary. Plaintiff avers that he worked for four (4) months that is June to September 2015 yet was paid only Two Thousand Four Hundred Cedis (GH¢ 2,400.00) only by Defendant being salary for two (2) months of work. Plaintiff stated that Two Thousand Four Hundred Cedis (GH¢ 2,400.00) remained outstanding being his salary for the remaining two months of work. According to the Plaintiff his demand for salary in arrears was met with an explanation from Defendant that same would be paid upon Defendant’s receipt of money from the Government of Ghana; project owner. Plaintiff avers that after a continued period of mounting pressure on Defendant, he was introduced by Defendant to his director who paid Plaintiff an additional Six Hundred Cedis (GH¢ 600.00) only out of the Two Thousand Four Hundred (GH¢2,400.00) only owed him by Defendant. Plaintiff concluded that the project is now completed. Defendant has received the money due for the contract and has proceeded to pay all other workers he engaged for the contract yet withheld the One Thousand Eight Hundred Cedis (GH¢1,800) only owed Plaintiff hence the commencement of this suit. Page 2 of 16 It is the response of the defendant that he is not indebted in any way to the plaintiff. He claims that indeed he engaged the services of Plaintiff on a daily wage basis. In this regard he was paying Plaintiff Forty Cedis (GH¢ 40.00) only per day for every day of the week worked. Defendant contended that it later came to his notice that Plaintiff had failed to report to duty on weekends yet received wages for same. These absences impacted negatively on the project till plaintiff walked away from work to return to Accra without informing him. Defendant thus concluded that for any indebtedness if so claimed by Plaintiff, same can be set off with the monies paid Plaintiff for no work done on weekends. PROCEDURE OF TRIAL: At the close of pleadings, parties were referred to Court-Connected Alternative Dispute Resolution (C.C.A.D.R) to attempt settlement. Though this matter seemed simple, the parties failed to settle their differences and returned to court to inform the court that settlement broke down. Parties were self-represented in this case. During trial, they testified by themselves and called no witnesses. At the close of Hearing, the suit was adjourned for judgment. During trial, Defendant waived Cross-examination of Plaintiff. ISSUE FOR DETERMINATION BY THE COURT: In view of the pleadings, evidence led and cross-examination of defendant herein, the court set down one issue for determination, i.e.: whether or not Defendant owes the Plaintiff One Thousand Eight Hundred Cedis (GH¢1,800) only. In the view of the Court, the determination of this issue will obviously answer whether or not the Plaintiff is entitled to his claims/reliefs. Page 3 of 16 EVIDENCE ADDUCED BY PLAINTIFF: Plaintiff testified that he is a construction foreman resident at Achiaman. He claimed that in June 2015 the defendant engaged his services as a foreman on a construction project at Tatale in the Northern Region. Plaintiff claimed that they both agreed on a monthly salary of One Thousand Two Hundred Cedis (GH¢1,200.00) only per month. Plaintiff asserted that he worked from June to September, 2015 thus totaling four months. He was thus entitled to a payment of Four Thousand Eight Hundred Cedis (GH¢ 4,800.00) only. Plaintiff testified that plaintiff paid him only half this amount that is One Thousand Two Hundred (GH¢1,200.00) only. Following persistent demands for the outstanding amount, the project director of defendant; Mr. Ansah Obiri Sampson paid to the plaintiff Six Hundred Cedis (GH¢ 600.00) only leaving an amount of One Thousand Eight Hundred (GH¢1,800.00) only which defendant refused to pay plaintiff. The plaintiff avers that following a non-payment of his outstanding salary, he consequently abandoned post and retuned to Accra to commence his Suit for the reliefs prayed supra. EVIDENCE ADDUCED BY DEFENDANT: The defendant testified that indeed he engaged the services of defendant in June, 2015 for supervision of a project at a monthly salary of One Thousand Two Hundred Cedis (GH¢1,200) only. The defendant contented that in this contract, he observed that plaintiff did not work on weekends when he visited the site unannounced. According to the defendant due to plaintiff’s failure to report for duty on weekends, the project stalled. Defendant testified that he realized this delinquent conduct of plaintiff after defendant had paid plaintiff his salary for three (3) months of work. Page 4 of 16 Defendant testified that plaintiff walked away from post after three months of work to Accra. He therefore consequently declined plaintiff his salary and told plaintiff not to report at the site any longer. Defendant contended that in total plaintiff worked for three months and two weeks over which period he paid plaintiff Three Thousand Six Hundred Cedis (GH¢3,600) only in the following instalments One Thousand Two Hundred Cedis (GH¢1,200) only upon assumption of duty and again One Thousand Eight Hundred Cedis (GH¢1,800) only plus Six Hundred Cedis (GH¢600) only thus he owed plaintiff no money whatsoever. Defendant mentioned that plaintiff worked only seventy-seven days for the three and half month’s period out of which he should have been paid Forty Ghana Cedis (GH¢40) only for each working day out of the one hundred and five (105) days. Defendant concluded that the plaintiff had rather been overpaid, leading to great losses for him. So, he owed the plaintiff no money whatsoever. BURDEN OF PROOF: As in all civil suits, the legal burden of proof is placed on the party who asserts the existence of a fact in issue or any relevant fact. Depending on the admissions made, the party on whom the burden of proof lies is enjoined by the provisions of Sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead cogent evidence such that on the totality of the evidence on record, the court will find that party's version in relation to the rival accounts to be more probable than its non-existence. Sections 10, 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323) provide as follows: “Section 10—Burden of Persuasion Defined. (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. Page 5 of 16 (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11—Burden of Producing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. Section 12—Proof by a Preponderance of the Probabilities. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. Section 14 - Allocation of Burden of Persuasion. Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” This basic principle of proof in civil suits, is expounded in the case of Zambrama v Segbedzie (1991) 2 GLR 221 and the same has been applied in numerous cases including Takoradi Floor Page 6 of 16 Mills v Samir Faris (2005/06) SCGLR 882; Continental Plastics Ltd v IMC Industries (2009) SCGLR 298 at pages 306 to 307; Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2); and Ackah v. Pergah Transport Limited and Others [2010] SCGLR 728. In the case of Ackah v. Pergah Transport Limited and Others (supra), Adinyira, JSC succinctly summed up the law, at page 736: “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than it’s non-existence. This is the requirement of the law on evidence under section 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975 (NRCD 323).” There is, indeed, a clear distinction between the legal burden of proof and evidential burden of proof. Whilst the legal burden of proof is mostly borne by the plaintiff or whoever makes an assertion, evidential burden exists to produce evidence in support of an assertion or exists in the form of tactical onus to contradict or weaken the evidence that has been led by an adversary. Thus, at the trial the plaintiffs bore the burden of producing evidence and the burden of persuasion on the issues set down for trial. All the parties were required to lead evidence to establish their claims on the preponderance of probabilities and if one fails the court ought to enter judgment against him. The defendant is also at liberty to introduce evidence to contradict the assertions of the plaintiffs. ANALYSIS: It is the case of the plaintiff that the defendant owed him One Thousand Eight Hundred Cedis (GH¢1,800) only for services rendered to him in his position as a foreman. To support his Page 7 of 16 averment, the plaintiff testified to his engagement on the defendant’s construction site. He additionally testified to their negotiations in respect of the job description and salary. Same is not disputed by the defendant. Plaintiff further testified that the amount owed him proceeded out of non-payment for services rendered to defendant. In support of his averment, he further added that defendant’s agent being the project manager in settling this amount paid him Six Hundred Cedis (GH¢600) only which is not disputed by the defendant. In the case of Quagraine v Adams [1981] G.L.R 599, CA., it was held that: “Where a party makes an averment and his opponent fails to cross-examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by the failure to cross-examine.” In the case of Barima Gyamfi and Another v Ama Badu (1963) 2GLR at 597 the Supreme Court per Sarkodee- Addo, Ollenu and Blay J.S.C stated among others that; “In a civil case, the decision must be upon the balance of probabilities established by preponderance of the evidence. Where the preponderance of the evidence is in favour of the plaintiff, a judge is fully justified in granting the plaintiff’s relief sought”. In the matter of Rep v Ghana Railway Corp; Exparte Appiah & Another [1981] GLR 752 at 758 Twumasi J. had this to say: “The core idea implicit in the principle of natural justice; “no one ought to be condemned unheard” in simply that a must have reasonable notice of the case he has to meet and be given the opportunity to make his statement in explanation of any questions and answers any arguments put forward against it.” When called upon for his response to the claim of the plaintiff, the defendant stated that indeed a valid contract existed between himself and defendant for which the amount claimed by plaintiff is outstanding however he refuses to pay same for reasons best suited to him. In enlisting his reasons defendant contended that firstly the plaintiff was not onsite throughout the Page 8 of 16 pendency of the contract that is the plaintiff did not work on weekends. The defendant claims that by his absence onsite on weekends, the contract stalled thus his non-payment of the amount claimed by plaintiff. Again, he claimed that he had overpaid the plaintiff for no work done. A contract as per Heward Mills J. (as he then was) in the case of Kobaku Associate v Owusu [2006] 2 MLRG 228 at 247: “It is an agreement constituted by offer and acceptance with the mutual intention that it should be binding and enforceable at law. Where the transaction involves commercial concerns as opposed to domestic arrangements there is a presumption in favour of a mutually binding legal relationship. The heavy burden of rebuttal lies on the party seeking to deny this. Under Section 11 of the Contracts Act, 1960 (Act 25) with a few exceptions, a contract is not void simply because it is not written. The existence or not of a binding agreement whether oral or not is a matter of evidence which may be established in many ways inducting the actual conduct of parties. Inducting an oral contract not reduced into writing is binding nevertheless so long as there is clear evidence as to essential terms and the actual intention of the parties”. In the case of Sega Exports Ltd v Dart Hills Ltd [2013] 62 GMJ 186 at 202 Dennis Adjei, JA. opined that: “There is an important distinction between the claims for payment of a debt and a claim for charges. A debt is a definite sum of money fixed by the agreement of the parties as payable by one party in return for the performance of a specified obligation by the other party or on the occurrence of some specified event or condition; whereas damages may be claimed from a party who has broken his primary contractual in some way other than by failure to pay such debt.” More so, in the case of Soft Sheen Carson v William Fugar [2014] 79 GMJ 162 Kusi-Appiah J.A. stated that: Page 9 of 16 “The doctrine of sanctity of contract directs that a court cannot intervene and substitute any other interpretation of the contractual intentions of the parties, but must clinically give effect to only what the parties have themselves contracted to do.” The nagging questions begging for an answer from the defendant by the court is that when he observed that plaintiff was not at post on weekends during the pendency of the contract, what disciplinary measures did he put in place to forestall a repetition of such conduct on the part of plaintiff? There is no evidence of any query or disciplinary measure taken by the defendant. It is therefore apparent that he was not vigilant on his contract but indolent. It is therefore rather late in the day for him to be rely on this ground to delay plaintiff his salary due him for work done. It is the respectful opinion of the court that the defendant by his conduct is estopped from not paying plaintiff for Equity favours the vigilant and not the indolent. Defendant has slept on his rights for a long period and cannot rather late in the day leave the plaintiff worse off. The conduct of the Defendant that has led to this dispute was in bad faith, and that conduct is rightly caught by Section 26 of the Evidence Act, 1975 (NRCD 323). It is clear from the proceedings on record that, because of the representations made by the defendant, the plaintiffs had acted. In the respectful view of the Court, the conduct of the Defendant amounted to deceit and as indicated earlier, is caught under Section 26 of NRCD 323 on estoppel by conduct or statement. As stated earlier, the law is trite that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission which is an example of estoppel by conduct [See the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by Fatao Amoni 11 ) V Akotia Oworsika 111 (Substituted By Laryea Ayiku 111) [2005 -2006] SCGLR 637 @ 656]. The principle of estoppel by conduct has been provided for in Section 26 (1) and (2) of the Evidence Act, [1975] NRCD 323 as follows: “Estoppel by own statement or conduct. Page 10 of 16 Section 26. “Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief the truth of the thing shall be conclusively presumed against that party or the successors in interest of the party in proceedings between”. This estoppel by conduct also known as estoppel in pais is a well-known principle of law. In the case of Moorgate Mercantile Co Ltd V Twitching (1975) 3 ALL ER 314, at page 323 CA Lord Denning MR. explained it thus; “Estoppel…. is a principle of justice and equity? It comes to this. When a man by his words and conduct has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.” Also, in the Ghanaian case of Sasu v Nyaduala [1973] 1 GLR 221 at 225 Apaloo JA. (as he then was), had this principle in mind when he stated as follows; “A party should be held to any act or statement which it would be unconscionable to permit him to deny”. From the above, I hold the respectful view that, what the defendant did by representing to the plaintiff that he would pay him for work done, and the plaintiff by believing that the defendant would pay him his salary, which the Defendant has himself admitted to the plaintiff going on site to work, is estopped by his conduct and statement from denying the plaintiff his salary as he had sought to do in the trial. Page 11 of 16 The defendant further averred that the repeated absences of plaintiff onsite stalled works thus leading to a late delivery. In respect of this averment, there is no evidence before the court. It is trite learning that mere averments in the witness box without any proof of same amounts to nothing. In the case of Majolagbe v Larbi and Others [1959] GLR 190 at page 192 per Ollennu J. (as he then was) stated as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances, circumstances, and its averment is denied, he does not prove it by merely going into the witness box and repeating the averment on oath, or having it repeated on oath by its witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” There is evidence on record to show that the project manager on sit took steps to settle defendant’s indebtedness which same, the defendant did not deny. This further goes to buttress the case of plaintiff that indeed the defendant does owe him. It is the respectful opinion of the court that by the Labor Act, 2003 [Act 651] the standard workweek in Ghana is capped at forty (40) hours, spread over five (5) days. Generally, workers can legally work as many hours in a day as they choose to or as their employer requires. There are no limits to how many hours a week you can schedule your employees however any work that goes beyond eight (8) hours a day or forty (40) hours per week the employer needs his worker overtime. It is not the case defendant that plaintiff was working a predictive scheduling regime. Rest again is mandatory for every Ghanaian worker. Temporal workers although not usually given written contracts are still entitled to of Act 651. This includes paid public holidays, sick leave, overtime pay and rest although a casual worker. The defendant within two (2) months of engaging plaintiff had a duty to provide a written statement of the main terms of the contract which should have included details such as job tittle, working hours and remuneration. This is not before the court. I have scratched my head to no end to find this in the testimony of defendant and same is absent. It is Page 12 of 16 imperative on every employer to keep god records on every worker. If defendant had done so he wouldn’t be before the court making bare assertions. Based on the above cited laws and authorities, and on the Defendant’s own admission as well as the principle of estoppel by conduct, I find that, there is overwhelming evidence that the Defendant owes the plaintiff the amount claimed as per his statement of claim. I therefore have no hesitation in holding that, the plaintiffs did work for four months and is entitled to his outstanding salary in the sum of One Thousand Eight Hundred Ghana Cedis (GH¢ 1,800.00) only and the Defendant is estopped by the principle of estoppel by conduct to deny same. I therefore enter judgment for the Plaintiffs as follows; a) Recovery of cash, the sum of One Thousand Eight Hundred Ghana Cedis (GH¢ 1,800.00) only. b) Interest at the prevailing commercial bank rate on the amount in relief (a) supra from August, 2015 till date of full and final payment. In evaluating the evidence adduced before the court by both parties on the issues in contention, I have considered, the caution issued by Georgina Wood JSC. (Mrs.) (as she then was) in the case of Effisah v Ansah (2005 -2006) SCGLR 943 at 948 where she opened that: “In evaluating led at a trial, a court ought not to rely on minor, immaterial and insignificant non- critical” inconsistences to deny justice to a party who has clearly discharged her burden of proof, especially where the inconsistencies were clearly reconcilable” Having held that Plaintiff is entitled to his reliefs (a) and (b), I shall now consider the issue of damages. I hold the view that, Plaintiff is entitled to Damages. I note that, the Plaintiffs did not specifically state any amount in damages. In my respectful opinion, the fact that no figure was stated by Plaintiff does not mean that he is not entitled to any damages at all. Plaintiff asserted Page 13 of 16 that, the amount claimed had greatly devalued over time so that whatever plans he had made for this money had been derailed. I can also envisage the frustration, anxiety and uncertainty surrounding this suit that Plaintiffs might have been subjected to when this matter could have been easily resolved at the pretrial stage. So, Plaintiff is right in asking for damages. In assessing damages for Plaintiff, it is important to state that, there are a plethora of authorities that have stated the rule in awarding damages. The Court ought to take into consideration some factors which include physical and psychological pain suffered, loss of amenities, mental agonies and suffering, and the inflationary effect on the purchasing power of the Cedi to name a few, though the list is not exhaustive, it depends on the circumstances of each case as held by Wiredu J. (as he then was) in the case of Opoku Darkwa v Akyea (1974) 1 GLR 272. In the circumstances, I shall award general damages of Three Thousand Cedis (GH¢ 3,000.00) only against the defendant in favour of the plaintiff for the stress, loss of amenities and anxiety of waiting all these years to see that justice is done in this case that has spanned a period of about nine (9) years when the Defendant made the representation to Plaintiff in June, 2015. The court is also not oblivious of the inflationary effect on the purchasing power of the Cedi. Cost is assessed at Two Thousand Cedis (GH¢ 2,000.00) only against the defendant in favour of the plaintiff. H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE Page 14 of 16 Page 15 of 16 The Plaintiffs as part of their reliefs have asked for any other order as this Court thinks fit. For all the while that the case was instituted in Court, the Defendant, knowing that the Plaintiffs had indeed paid the monies to him, but taking everyone on a wild goose chase all these years and for waiting for the Plaintiffs to hire the services of a Lawyer both at the Duayaw Nkwanta Circuit Court and also at the High Court, Sunyani, I shall order the Defendant to pay the cost incurred by Plaintiffs in instituting this action in Court which will be included in the cost to be awarded by Court. I shall award cost of this litigation in the sum of Fifteen Thousand Ghana Cedis GH¢15,000.00 against the Defendant in favour of the Plaintiffs. Page 16 of 16