Carr v. Sierra Fishing Company (No. CC 695/95 1995 C. NO.40)  SLHC 33 (10 July 2007);
SIERRA LEONE No. CC 695/95 1995 C. NO.40
IN THE HIGH COURT OF SIERRA LEONE
MR. EMILE C. CARR - PLAINTIFF
6 OFF ROAD
SIERRA FISHING COMPANY - DEFENDANT
BERTHAN MACAULAY Jnr. - For The Plaintiff
VIVIAN M SOLOMON - For The Defendant
JUDGMENT DELIVERED THIS 10th DAY OF July 2007.
In this case the plaintiff's claim against the defendant company is for the following:
1. Fuel allowance from 1.10.94 to 10.2.95 - Le1, 197,000.00
2. Salary for the period 1.12.94 to 10.2.95
inclusive at Le 660,669.00 per month - Lel,321,338.00
3. Arrears of leave allowance for 155 days
at U.S. $450 Per day - $69,750; or
4. Alternatively per diem for 155 at U.S. $450
per day - $69,750
5. Terminal benefit amounting to - Le10,564.097.32
6. Refund of cost of type writer ribbons - Le 48,000.00
7. Refund of cost of wash hand basin - Le 32,000.00
8. Damages for breach of contract
9. Interest on the total sum due to the Plaintiff from 10th February 1995 until Judgment.
The defendant defended the action and filed a defence and a counterclaim. The plaintiff gave evidence in the matter but called no witnesses. The defendant company called one witness in the person of the Company Secretary Mr. Arnold Jonathan Cole. From the facts of this case and as evinced from the witnesses, the plaintiff was offered appointed by the defendant company on the 5th of January 1989 as an Accountant under specific terms and conditions as stated in exhibit A. Later that same month, the plaintiff received another letter of appointment dated 20th January 1989 along the same lines. On the 28th of April 1990 he was designated Internal Auditor and Head of Department, a designation which meant more emoluments for him. Thereafter the plaintiff received further enhancements in his position and salary; firstly, as Acting Company Secretary from the 18th of August 1990, a position he occupied until July 1994. Meanwhile, in April 1991, he was appointed Chief Accountant, a position he occupied until his resignation on the 10th of February 1995. Thus as between April 1991 -July 1994 he was both Acting Company Secretary and Chief Accountant in the defendant Company. These salient facts are not disputed by the defendants. In fact in their defence and counterclaim filed the defendant never denied the plaintiff's several appointments and enhancements in post and salary. They however disputed the emoluments claimed in terms of allowances not specifically state in the various appointment letters saying that they were not part of his conditions of service and the actual quantum to be paid out as part of the plaintiff's entitlement in this respect were also contested. Following his resignation, the plaintiff has been expecting the defendant company to pay him such allowances which he claimed were outstanding prior to his resignation, and also his terminal final benefits after resignation, the same which remained unpaid hence this action for breach of contract and the several claims.
I have considered all the evidence before this court and the arguments raised by the plaintiff and defendant solicitor in their separate addresses to this court. This case raises several issues for consideration and in the main they could be summarized as follows: Whether there was a breach of contract of service? Whether the plaintiff was entitled to annual vacation leave and per diem allowance for his leave period especially so when leave allowances are not usually paid with reference to per diem allowances; if the same
were true whether the same could be applied where he did not spend the leave but had it accumulated? If not whether he would in the circumstances be entitled to leave pay? Whether the plaintiff was entitled to terminal benefits and if so how much? .Whether the plaintiff was entitled to salary for the period 1.12.94 to 10.2.95 which was the period following the plaintiff's resignation leading up to the effective date of his resignation, the 10th of February 1995; If so, how much salary and finally whether the plaintiff was entitled to fuel allowance from 1st of October 1994- 10th February 1995 and at what cost. I propose to deal with each of these issues Seriatim
1. Whether there was a breach of Contract of Service ?
From the evidence before this court, the plaintiff was offered appointed by the defendant company on the 5th of January 1989 as an Accountant under specific terms and conditions as stated in exhibit A. Later that same month the plaintiff received another letter of appointment dated 20th January 1989 along the same lines. On the 28th of April 1990 he was designated Internal Auditor and Head of Department, a designation which meant more emoluments for him as stated above see exhibit C.
A contract of service was created when the defendant offered the plaintiff employment in the defendant company and the plaintiff accepted this appointed. The plaintiff was required to complete and sign an enclosed copy letter and return it to the defendant . While there is no written evidence of this, it was never in dispute that the plaintiff took up the appointment. As a matter of fact the said letters i.e. exhibits A and B constitute the formal written contract of service setting out the terms and conditions of service governing the plaintiff's employment. Of particular importance is Exhibit B where in the penultimate paragraph is found these words:
"On confirmation , termination of this appointment is subject to a month's notice or a months salary in licu of notice on While I am unable to see a singular letter which is the letter of confirmation of the plaintiff's employment with the defendant company, I am compelled to come to the
conclusion that as a result of the continuous enhancements in positions and salaries indeed the plaintiff was confirmed in his appointed and in fact this was never in dispute . In my considered opinion while termination could be by either side, it has to, in the case of the defendant be by termination of the plaintiff's service, but in the case of the plaintiff by resignation of his services .Thus this contract of service was brought to an end when the plaintiff resigned his services from the defendant company. The plaintiff, however, before resigning gave sufficient notice of his resignation by giving notice of his resignation which the defendant accepted. See exhibits J and K respectively, which are the resignation notice and the reply thereof .The resignation Notice is dated the 30th of November 1994 and the resignation did not take effect until the 10th of February 1995. At the end of the resignation, the defendant was obligated to pay the plaintiff his salary up to his resignation & terminal benefits which they failed to do . In a contract of service it is a fundamental term of the agreement for the employee to give notice of his ermination/resignation or pay salary in lieu of Notice of termination / resignation and this is exactly what was envisaged in the contract of service between the plaintiff and the defendant herein.
The plaintiff having complied with the terms and conditions of service, the defendant was obligated to pay him until the resignation took effect, as where the employee gives notice, the employer is bound to pay him until the resignation takes effect . It would appear to me that from the date the plaintiff in this action gave notice to the defendant i.e. 30th November 1994, the defendant ceased to pay him any salary. I am of the view that if payment is not made to the plaintiff in such situations there is a breach of contract. Further more it is the law that that when an employee is terminated he is entitled to terminal benefits lawfully accruing to him during the prevalence of his contract of service and where same is refused it is indeed breach of the contract of service . The defendants in this action did accept that the plaintiff was due benefits, see exhibit K but failed to pay same to him up to the point of commencing this action and even up to now. This clearly constitutes a breach of the contract of service . The breach is as a result of the defendant hot paying the plaintiff salary for the period from the 1st of December 1994 -10th February 1995 and his terminal benefits and indeed all that was due him before, at or
contemporaneously thereafter the effective date of his resignation i.e. 10th February 1995 to take the case of STRONG VS BREWERY SUPREME DECISION CIV APP 7/79 UNREPRORTED into context. While I agree that damages could not be assessed in the same way as in the wrongful dismissal cases Viz as argued by the defendant's solicitor there cannot be any doubt that by reason of the delay in making requisite payment the defendant has suffered loss or damage. Consequently damages ought be assessed reference to the use to which the money could have been put and the loss the plaintiff is to suffer for not putting it to such use and /or for borrowing money as result of the lack of it .I would therefore award damages for breach of contract.
2. Whether the plaintiff was entitled to annual vacation leave and per diem allowance for his leave period especially so when leave allowances are not usually paid with reference to per diem allowances: if the same were true whether the same could be applied where he did not spend the leave but had it accumulated? If not whether he would in the circumstances be entitled to leave pay?
These are all multi issues emanating from need to find out what the plaintiff was entitled to in terms of vacation leave There is sufficient proof that the plaintiff was entitled to vacation leave. Exhibit F, for instance, did state that at a particular time during his employment in the defendant company as acting company secretary the plaintiff was entitled to 35 days per annum. However, what is more, is that by exhibit K, the letter dated 23rd January 1995, the defendant acknowledged that the plaintiff was due 145days and directed the plaintiff to take only 30 days vacation leave up to the 10th of February 1995 when his resignation took effect . If he was given permission to spend all his accumulated leave, his resignation would only have come into effect on the 26th June 1995. This court is bound to take judicial notice of the fact that when you are due leave and unable to spend it you should be paid money instead called leave pay. The defendant by the said letter of 23rd January 1995 exhibit K seem to acknowledge this and accepted to pay the plaintiff for the remainder of the accumulated leave estimated as 85 days. Since the Plaintiff did not spend the 85 days leave , it is the opinion of this court that he could not be entitled to leave allowance for that period as leave allowance always is for
spent leave and not unspent leave . This nonetheless, it is clear that he did proceed on 30 days vacation leave and for this he must be entitled to leave allowance which has also not been paid . I take support for this from the evidence of DW1 who in examination in chief said
"Employees get per diem from the company when they travel on company business or go on leave overseas. Our senior management are entitled to per diem. Local leave allowance is paid to senior management staff who do not travel"
There is no evidence before this court that during his 30 days vacation leave spent between the 30th of November 1994 and the effective date of his resignation 10th February 1995, the plaintiff traveled abroad, rather on the contrary, this court believes he did not travel abroad. The plaintiff has claimed arrears of leave Allowance for 155 days at US$450 per day. The defendant has challenged payment of per diem at US $ 450 per day . They claim in their pleadings that the Plaintiff was never entitled to per diem of $450.00 per day as claimed and that the Defendant only gave per diem to certain members of staff when they travel out of the jurisdiction of Sierra Leone and further that it was never part of the terms and conditions of the plaintiff's letter of appointment. On this issue this court is of the opinion firstly that apart from the specific terms and conditions of service, exhibit F does make provision it abundantly clear that as senior management being Acting company secretary the plaintiff was entitled to other fringe benefits; secondly, that indeed the plaintiff had an arrears of leave of only 85 days and thirdly that there is no evidence that he traveled abroad on leave to warrant him receiving the allowance at the rate of US$ 450. Having said that, there is however a case for the plaintiff to be paid leave pay for the 85 working days or for the period 11th February 1994 - 26th June 1995, a period spanning 4 months and thirteen days . That apart , I note from exhibit H that as at 1993 the plaintiff had an outstanding leave Allowance of Le1 1,846,250 based on the per diem rate as per nominal ledger . Since the evidence of both PW1 and DW1 confirms that indeed per diem Allowance was a fringe benefit which senior officers traveling abroad on leave did receive, I do confirm that such amount was a fringe benefit as indicated and / or referred to in exhibit F . Noting further that exhibit H even though prepared by the plaintiff as accountant was a document of the defendant company, I would hold that the plaintiff is
entitled to per diem allowance in the sum of Le Le11,846,250 as arrears of leave allowance up to the 31st of December 1993. The plaintiff qualified as a senior management staff since 1990 when he acted as acting company secretary.
3. Whether the Plaintiff was entitled to Fuel allowance ?
In paragraph 7 of the particulars of claim the plaintiff averred as follows "The Plaintiff was entitled to fuel allowance of 3 gallons of petrol and 3 gallons of diesel per day but has not been paid the said allowance or any part thereof for the period 1st October 1994 up to 10th of February 1995. The cost of petrol during the period was Le1650.00 per gallon and diesel was Le1, 400.00. In answer to paragraph 7 of the Statement of Claim the Defendant stated that the Plaintiff was not entitled to fuel allowance as that was just an inducement given to certain members of Staff and by a Senior Management meeting it was decided that this inducement given to certain members of Staff be discontinued forthwith. Further, the Defendants stated that the Plaintiff was at the said Senior Management meeting when the said decision was taken and that he did receive transport allowance of Le250,000.00. The purport of the allegations made by the defendant goes beyond a mere denial of what the plaintiff has claimed and introduces very serious and new averments which must be proved by the defendant's . This they have failed to do . They have failed to show that it was an inducement given to certain members of staff and that by a senior management meeting it was decided that it be discontinued and that the Plaintiff was at the said Senior Management meeting when the said decision was taken and that the Plaintiff had transport allowance of Le250,000.00 which meant that he will not receive fuel allowance. On the other hand, however, I find that while Ex A, B & C make no reference to fuel allowance it was a fact that fuel allowance was given during the time when the plaintiff was Company Secretary and this was against a background where exhibit F which was the letter appointing him to such a high position on the 18th of August 1991 made reference as to him being entitled to fringe benefits. It is an uncontroverted evidence that Mr. Thorlu Bangura was the Managing Director during this period and that WU27426 was the plaintiff's car. Under examination in chief DW1 the only witness called for the defence stated
"I can see exhibit E which I am only receiving for the first time . I was not the company secretary when Mr Thorlu Bangura was Managing Director"
The effect of this is that 1) the only person who can speak authoritatively on exhibit E was the plaintiff 2) Exhibit E is uncontroverted 2)whereas in ex E there is no mention of Chief Accountant the evidence of DW1 that "as Company Secretary I was part of senior management so was the chief accountant" puts the chief accountant in the same cadre with the Company Secretary entitling him in the absence of any contrary evidence to fuel allowance of 3 gallons of petrol and 3 gallons of diesel per day despite no mention in the said exhibit E or any of the letters of appointment. Furthermore there is no evidence before this court that such a facility accorded to senior management staff had been slopped, rather on the contrary I should think the evidence of PW1 when he stated in chief:
"I was not given fuel for the period 1st October - 30th November 1994 but was paid in cash in lieu of the fuel."
makes it abundantly clear that up to his letter of resignation as chief accountant and from the defendant company he did receive that as his fuel allowance and not that it had been stopped when he stopped to be the acting company secretary in July 1994. The only conclusion one is compelled to make in such circumstances is that for his extended months of service after he had served his notice of resignation he was bound to receive the same fuel package. The defendant has similarly not denied the cost of the fuel .That apart I believed the plaintiff witness. In the circumstances I will hold that the claim for fuel should succeed.
4. Whether the plaintiff is entitled to Salary for the period 1.12.94 to 10.2.95?
The plaintiff resigned on the 30th of November 1994 but his resignation never took effect until the 10th of February 1995 . Until his resignation takes effect he is entitled to salary and this has not been paid in full. Even the defendant knows that, as after much consideration, the sum of Le 410,000 was what they paid the plaintiff as half salary see exhibit O. The plaintiff has rightly contested this in saying that he was entitled to Le 410,000 plus Le 250,000.i.e Le 660,000,00 as rent per month . To date however the full
amount has not yet been paid even at the plaintiff's rate or the defendant's rate. The defendant claimed that because the plaintiff stayed in the defendant's premises he was not entitled to rent allowance. Under cross examination by the plaintiff's solicitor I get the impression from DW1 that he was unaware that members of the defendant's company staff were accustomed to receiving rent allowance despite their occupation of the defendant's premises. In the circumstances, I would hold that the plaintiff is due salary for the period 1st December 1994-10th February 1995which from the evidence before this court has not been paid in full.
5. Whether the plaintiff was entitled to terminal benefits?
The evidence before this court is that the plaintiff worked for 5 years 4 months and for this he is definitely due terminal benefits . Even the defendant acknowledges same as by exhibit K they promised to pay the plaintiff the final benefits. Final benefits are synonymous with terminal benefits and may include more. In exhibit N after a longish delay in paying the final benefits the plaintiff wrote the defendant asking for his final benefits in the sum of Le 10,395.000. The defendant replied to the said letter, see Exhibit 0 . Exhibit O is important in that it was a reply to exhibits M & N and it contested the salary as claimed by the plaintiff. It states thus "On the matter of your unpaid salary we have already paid you half of what we owe you and shall endeavour to pay you the balance based on our own calculation." This letter went onto state that "Regarding your other claims , these will be presented to the board of directors at its next meeting for consideration and approval or other wise" .
There is no evidence before this court that the Board disapproved of the amounts or if at all, it was presented. The defendants in their statement of claim did not stop short of denying that the plaintiff was due the amount of Le 10,564,097.31 as final benefits but went on to aver that "the plaintiff is not entitled to terminal benefits of Le 10,564,097.31 as alleged" but fails to adduce any evidence to show that he is not entitled, like for instance, the fact that the Board did contest the amount or failed to approve the amount. In the circumstances this court believes the plaintiff and will hold that he is entitled to this amount as terminal benefits .
With regard to the claims for the Type writer ribbons and the wash hand basin, in the light of the evidence of PW1 and DWI when he said I am aware that the plaintiff bought type writer ribbons and a wash hand basin for the company quarters which he was occupying a I should hold that these claims should succeed. The Defendant has counter claimed :
a) For an amount of £405 which they claimed the defendant company paid on behalf of the plaintiff to Robert Claire with respect to spares for his generator. In support of this claim they produced exhibit Q which is an invoice from Hotel Bintumani for the sum of £405. This court does not see how an invoice from Hotel Bintumani could be presented in support of a claim that parts were bought from Robert Claire for the plaintiff. This claim will therefore fail.
b) The defendant has further counter claimed that the plaintiff was supplied with fish totaling Le 2,351,349.00 which said amount is still owing and due the defendant. In support of this DW1 states that this sum was in respect of Fish credited to a fishmonger for which the plaintiff stood as guarantor. Under cross examination the defendant witness stated that he cannot recall the name of the Fish monger and that he could not recall the time of the transaction. Worst still no document was tendered to the effect that the plaintiff guaranteed this amount. I should think that it would be unsafe to hold the plaintiff accountable in such circumstances; this claim therefore fails .
c) Lastly on the claim by the defendant on rent as I stated earlier the defence witness is just unaware of the fact that it was the practice to pay rent allowance to officers occupying the defendants premises but this was the practice. And if the company had not been in dire financial straits nobody would have picked it up .. I would hold that this claim fails also.
I therefore give judgment in favour of the plaintiff and order payment by the defendant to the plaintiff as follows
i). Payment of Fuel allowance from 1.10.94 to 10.2.95 - Le1, 197,000.00
ii) Payment of Salary for the period 1.12.94 to 10.2.95 inclusive at Le660,00.00 less Le 410,000 as
amount already received - Le 910,000.00 iii) Payment of Arrears of leave allowance to
December 1993 as per nominal Ledger - Le 11,846,250.00 iv) Leave Pay for 85 working days or from 11th
2.95 to 26.6.95 - Le 1,817,667.00
v) Terminal benefit amounting to - Le 10,395.097.32
vi) Refund of cost of type writer ribbons - Le 48,000.00
vii)Refun of cost of wash hand basin - Le 32,000.00
11. Damages for breach of contract - Le 3,000,000.00
12. Interest on the total sum due to the Plaintiff from 10th February 1995 until Judgment at the rate of 20% of the total sum
13. Costs to be taxed if not agreed
Hon Mr. Justice Desmond B. Edwards J