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MORGAN AND OTHERS v. PARKINSON HOWARD LTD


  • New
  • 1961-01-23
  • HIGH COURT
  • GLR 68-72
  • Print

OLLENNU J.


Summary

Master and Servant?-Wrongful dismissal?-Quantum of damages False imprisonment?- Burden of proof on plaintiff. [p.69]

Headnotes

Judgement

ACTION by plaintiffs for damages for wrongful dismissal and false imprisonment. The facts are set out in the judgment of Ollennu, J.

The claim made by the eight plaintiffs against the defendant- company is in two parts. Firstly, they claim together the sum of G1,400 damages for loss of income arising from wrongful dismissal; and secondly they claim G600 damages for false imprisonment.

Although it is not expressly stated, it would appear that the amount of G1,400 is claimed as special damages, and the yardstick by which the court is being asked to assess those damages is the wages which the plaintiffs would have earned had their employment with the defendant company not been terminated. But the plaintiffs must first satisfy the court that they have been wrongfully dismissed before they will be entitled to damages.

The facts pleaded by the plaintiffs, upon which the claim for wrongful dismissal is based, are contained in paragraphs 1 and 2 of their statement of claim and are as follows:

"1. The defendants, Parkinson Howard and Company Ltd., are engineers carrying on operations at Tema, in Ghana, and the plaintiffs were the former employees of the said company.

2. For no lawful justification the plaintiffs were called off their normal duties on 13th April, 1960, wrongfully dismissed and then turned over to the police for questioning."

[p.70]

In a claim for wrongful dismissal it is essential that the plaintiff should prove the terms of his employment and then prove either that the determination of the employment is in breach of the terms of his agreement, or that the determination is in contravention of the statutory provisions for the time being regulating employment. His claim cannot succeed if he fails to satisfy the court on these points.

No evidence was led on behalf of the plaintiffs to prove the terms of their employment; all the evidence they tendered is that they were employed by the defendant's company, two of them for about four years, one for about two years, the rest for a period which was not stated, and that each of them was dismissed without notice, or payment of wages in lieu of notice.

The statute which governed employment at all times material to the case is the Labour Ordinance1 Counsel referred to the evidence that some of the plaintiffs had served the company for about four years, and the evidence that all the plaintiffs were dismissed without notice or payment of wages in lieu of notice, and submitted that the dismissal contravened section 45 of the said Labour Ordinance, and is therefore wrongful.

This submission may apply only to the first and second plaintiffs who say that they have served the company for about four years, because since there is no evidence as to the term of their employment it might well be that the employment of the plaintiffs was upon a contract at will governed by section 45(1) (c) which says:

"45(1) (c) in cases where the agreement is to pay wages at any rate other than monthly or weekly, [the agreement shall] be deemed to be a contract at will, determinable by either party at the close of any day without notice."

If the plaintiffs are on hourly wages, which they might well be as appears from exhibit F, then their dismissal excepting that of the first and second plaintiffs without notice will not contravene the Ordinance, and will not constitute wrongful dismissal; consequently their claim based on wrongful dismissal will not require further consideration.

In the case of the first and second plaintiffs who are proved to have been in the employment of the company for a period exceeding three years, section 45(4) of the Labour Ordinance2, provides that they are entitled to one month's notice, and under section 46 of the Ordinance they would have been entitled to one month's wages in lieu of notice. Therefore if their dismissal is wrongful the amount of damages they would have been entitled in law to recover would be one month's wages which should have been paid to them in lieu of notice: see Hartley v. Harman3 That takes me to the crucial question in this first part of the claim, namely: was the dismissal of the plaintiffs wrongful? The defence is that the plaintiffs were dismissed for good cause; that they were guilty of gross misconduct, which under the rules of the company warranted their dismissal [p.71] instanter without notice and without payment of wages in lieu of notice. In support of that defence the defendants produced documentary evidence which left no room for doubt that the plaintiffs did certain acts in the course of their employment with the defendant-company which would have caused the company to be defrauded to the tune of about G6,000.

The relevant facts in relation to that part of the claim and the defendants' defence to it are as follows: Some of the plaintiffs were posted at a quarry at Mampong, Shai Hills, about twenty-one miles away from Tema harbour; as part of their duties they dispatched trucks loaded with rocks from the quarry to Tema harbour giving the drivers of the vehicles waybills on which they recorded the time of the vehicles' departure from the quarry. The other plaintiffs were posted at Tema harbour to check the vehicles arrive in with their loads of rock, and to record the time of arrival on the waybills. The vehicles which were employed to convey the rocks belonged to sub-contractors to the defendants and were paid according to the number of trips the vehicles did in a month. During the month of March, 1960, it was discovered from the times recorded on the waybills, that the vehicles of a sub-contractor could not have done the number of trips they were recorded to have done. For example, vehicle No. AF.8761 is shown on exhibit A1 to have left the quarry at 11.40 a.m. on the 13th of March, 1960, arriving at Tema harbour at 1.52 p.m.; while on exhibit A2 the same vehicle is recorded as having left the quarry at 1.40 p.m on the same date, the 13th of March, 1960, arriving at Tema harbour at 2.25 p.m., which of course was physically impossible. There are a large number of such apparent irregularities. Glaring discrepancies such as these are incompatible with the due and faithful discharge of the duties which the plaintiffs were employed to discharge to their employers, and in my opinion justified the defendants in dismissing the plaintiffs forthwith without notice or wages in lieu of notice, see Clouston Co. Ltd. v. Corry4 and Tomlinson v. L.M.S. Rly5. Upon this very strong prima facie case of infidelity proved by the defendants on the part of the plaintiffs, an onus fell upon the plaintiffs to prove their innocence, see Federal Supply Etc. Co. v. Angehrn6. All the answer the plaintiffs made to this clear case of infidelity is that they had no watch and had to look at the position of the sun to guess the times which they wrote down on the waybills. The second plaintiff, however, came to court wearing a wrist-watch; he had to admit that he used his time-piece for performing his duties. I reject the explanation as preposterous.

In my opinion the defendants had every justification in dismissing the plaintiffs.

And now to the second part of the claim; damages for false imprisonment. The law as I understand it is that where a plaintiff sues for false imprisonment, and the person he sued is not the officer who made the [p.72] arrest, he, the plaintiff takes upon himself the onus of proving that the defendant authorised or procured the arrest: see McCloughan v. Clayton7 cited by counsel for the plaintiffs. If the evidence showed that the defendants merely gave information and the constable thereupon acted according to his own judgment, the defendant incurs no responsibility in the tort of false imprisonment: Grinham v. Willey8. That is the principle I have to apply in this case.

The only facts pleaded by the plaintiffs to connect the company with their arrest is that after the company had dismissed the plaintiffs, they, the defendant-company turned the plaintiffs over to police for questioning. The police were not called to say how they came to arrest, if indeed they did arrest the plaintiffs, and there is no evidence to prove that in making the arrest, they, i.e. police acted upon a request made to them by the defendant-company and not upon their own judgment. Therefore this second limb of the plaintiffs' claim must also fail.

The claim of the plaintiffs is dismissed and judgment entered thereon for the defendant-company with costs.

Decision

<P>Action dismissed.</P> <P>Judgment for defendants.

Plaintiff / Appellant

M.T. Afutu-Nartey

Defendant / Respondent

Attorney-General

Referals

(1) Hartley v. Harman (1840) 11 Ad. & E. 798;113 E.R.617

(2) Clouston & Co. Ltd. v. Corry [1906] A.C. 122; [1904-7] All  E.R. Rep. 685.

(3) Tomlinson v. L.M.S. Rly [1944] 1 A11 E.R. 537.C.A.

(4) Federal Supply, Etc, Co. v. Angehrn (1910) 103 L.T. 150; 26 T.L.R. 626, P.C.

(5) M'Cloughan v. Clayton (1816) Holt. 478; 171 E.R. 311

(6) Grinham v. Willey (1859) 4 H.& N. 496; 157 E.R. 934.

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