DANGHA v SIERRA LEONE ROAD TRANSPORT CORPT (CC 893/05)  SLHC 6 (04 July 2008);
SIERRA LEONE No. CC 893/05 2005 D NO.27
IN THE HIGH COURT OF SIERRA LEONE
CIVIL JURISDICTION BETWEEN: -
MR. MOMOH DANGHA - PLAINTIFF
79 CALABA TOWN FREETOWN
SIERRA LEONE ROAD TRANSPORT CORPT - DEFENDANT
BLACK HALL ROAD
AMADU KOROMA - For the Plaintiff
ELVIS KARGBO - For the Defendant
JUDGMENT DELIVERED THIS 4TH DAY OF JULY 2008.
In this case the plaintiff's claim against the defendant corporation is for the following:
1. Payment of the sum of Le 11,394,399.00 being payment of end of service benefits that is due and owing to the plaintiff.
2. Payment of the sum of Le 3,300,000.00 being payment of arrears of salaries by the defendant Corporation to the plaintiff for the period September 2003 to May 2005.
3. Payment of damages by the defendant to the plaintiff for wrongful dismissal
4. Interest on the said amounts at the rate of 35% per annum
5. Further or any other relief as this court may deem just and
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 Corporation called 3 witnesses. From the facts of this case and as evinced from the witnesses, the plaintiff was offered appointed as a driver of the defendant Corporation on the 6th of June 1974. In the course of this employment he was promoted as chief driver and instructor by the
defendant Corporation. In 2003 he went to work and the manager said he should not proceed to the office. Before this time he had not been served with any letter of termination after being stopped to proceed to the office. On the 5th of May 2005, nonetheless he received a letter which was produced as exhibit A to the effect that, consequent upon the cabinet conclusion and the resulting Government White paper, his services had been terminated. As a result of this letter he consulted with his solicitor who wrote to the defendant a letter which he produced and tendered as exhibit B. His net salary was Le 256,000.00.as at September 2003. From September 2003 when he was stopped from work to May 2005 when he received information about his termination he did not receive any salary. By virtue of this the plaintiff claimed to have been wrongfully dismissed.
These salient facts are not disputed by the defendant. In fact in their defence and counterclaim filed the defendant never denied the Plaintiff's appointment and emoluments. They however disputed that the plaintiff was wrongfully dismissed. They claimed the Plaintiff was lawfully terminated following the recommendation of the Armand Thomas Commission of Inquiry set up by cabinet to investigate on the activities of the Sierra Leone Road Transport Corporation the defendant herein. In support of this claim they called 3 witnesses. DW 1 under Examination in chief stated as follows:
"Mr Momoh Dangha was dismissed from the service of the SLRTC on the recommendation of a Commission of inquiry, the Armand Thomas Commission of Inquiry. There is report of the Commission .After the report the corporation did something. The corporation apportioned liabilities to Momoh Dangha and others. The Corporation had to pay Mr Momoh Dangha some amount of money and Mr. Momoh Dangha too had to pay moneys to the defendant. Mr. Momoh Dangha had to pay moneys to the defendant in respect of loans he had taken from the Corporation. I know the outcome of the commission of inquiry. The outcome of the Commission of Inquiry was that
they were dismissed. The reason for the dismissal was that the plaintiff was engaged in an exercise for the repatriation of refugees of Sierra Leone from Guinea. In that exercise the UNHCR had paid Dangha the sum of US$26,000 for 22 trips. He was expected to have accounted for this sum to the traffic manager one Mr. Elba. Mr. Elba denied that he did not receive that amount. The Corporation never received the money. The Corporation wrote a letter to the plaintiff in respect of this problem of his failing to account produced and tendered as exhibit El-2. After, Mr Dangha, the plaintiff, was requested to pay the amount allocated to him as his liability. He never paid the amount. I see exhibit D it is the reply of the plaintiff to exhibit E 1-2".
DW2 Mr. Bockarie Moneru Pujeh stated that he was the Personnel Manager in the defendant Corporation and that he knew the plaintiff who was an employee of the Corporation. He said the plaintiff was sacked because "he was mandated to convey refugees from Conakry to Freetown and in the process UNHCR paid to him the fares for these refugees and that in fact he collected the sum of US$ 27,500 from UNHCR for these people but that the same was never paid to the corporation. The Money according to him was not paid to the Managing Director Mr. Douglas Mead. As a result of this an investigation committee was set up. The committee reported its findings. After the report management was compelled to terminate the plaintiff's services in the defendant's Corporation following receipt of a communication from the Permanent Secretary Ministry of Transport and Communications conveying a Cabinet conclusion which he produced and tendered as exhibit K . He noted that the plaintiff's condition of service was governed by exhibit J the terms and conditions of service and that it was as result of exhibit G H J and K that the plaintiff services were terminated . After his termination Mr. Dangha, the plaintiff was paid benefits. His terminal benefits were paid after being worked out. He had liabilities to settle to the tune of Us 27,500,00 and as far as his knowledge goes he has not paid this amount.
Under cross examination it is pertinent to note what this witness said .He stated that
"During the time of the Armand Thomas Committee of investigation. I was Assistant Personnel Officer. I can read. I have seen the Armand Thomas Commission Report and I have read it. I see page 113 of the report. It deals with Mr. Momoh Dangha , the plaintiff. The recommendation regarding the plaintiff was that he should be retired as he was 58years old. When an employee retires he is given terminal benefits, pension and gratuity. I was not there when he received the money US$27,500 but he admitted to receiving it at the Road Transport Corporation. He admitted in our presence but I could not recall names of persons who were present. It is stated in the report that the sum of US$27,500.00 was handed over to Mr. Dangha for the defendant Corporation . I cannot say for now where it s is so stated. The position of the plaintiff at page 113 does not anywhere state that the plaintiff received US$ 27,500. I see pages 90-96 of the Report. I say for sure that the plaintiff did not pay the sum of US$ 27,500.00 to Mr. Douglas Mead. I agree that there is difference between what I stated and what is stated in page 96 of the Report. The Armand Thomas Report was forwarded to Cabinet for action. Cabinet was expected to act based on the recommendations of the Report. The recommendation of the Report was that Mr. Momoh Dangha was to be retired. I see exhibit A. It talks about apportionment of liabilities. There is no where in the Report where he was requested to pay liabilities. There is no report as far as I know which says that he is liable to pay liabilities as detailed in exhibit A. I see exhibit G. It is a memorandum from the Permanent Secretary Ministry of Transport and Communication. In the said memorandum he is conveying what Cabinet concluded in respect of the plaintiff. I see exhibit K it
is the Cabinet conclusion on the Armand Thomas Report. I see exhibit A. I believe that if he had been retired he would have received far more than he received as benefits. There is nothing in exhibit K which shows that he should pay anything to the defendant"
DW3 UMARU ANDREW CONTEH stated among other things that an investigation committee was set up in 2003, the investigation was completed and a report ensued which was submitted to the Ministry where he had worked from 2002. He stated that exhibit K was the Cabinet Conclusion on this investigation and on receipt of it an official letter was written from the then Permanent Secretary to the Management of SLRTC requesting them to take necessary action as contained in the Cabinet conclusion .Under cross examination he stated that he has not read this the report of the investigating Committee exhibit H.
The defendant counterclaimed for the sum of USS27, 500.00 which they claimed was to have been handed over to the Corporation by the plaintiff but which according to them he failed to do, the result of which after apportionment of liabilities by the Investigating committee, he was to pay the sum of US $4,650 or its equivalent in leones worked out as Le 13,950,900 of which part of same was off setted by his terminal benefits leaving a balance of Le 3,431510 still unpaid.
Having considered the several claims by both the plaintiff and the defendant and having perused and considered the evidence in respect of these claims, I should think the matter raises 2 main issues.
Firstly, Whether the termination of the plaintiff, Mr Momoh Dangha, was lawful; and Secondly, Whether there was any apportionment of liabilities for which the same should be deducted from his terminal benefit as result of which the counterclaim herein would have been proved ?
If the termination was lawful need I point out that the claim of the plaintiff would automatically fail, but if it was wrong in law and constituted a wrongful dismissal, this court would have to consider whether in fact reliefs prayed for could be rightly given to plaintiff, and if so, to what extent ? Connected to this, was of course the issue of when the termination took place. It thus behoves this court to give attention to the above questions.
Whether the Termination of the Plaintiff Momoh Dangha was lawful?
On the issue of whether the termination of the plaintiff Mr Momoh Dangha was lawful? the case for the defendant was that he was terminated according to the recommendations of the Armand Thomas Committee of investigation set up by cabinet to investigate the activities of the Sierra Leone Road Transport Corporation which led to a crisis i.e. Exhibit H and that this was supported by exhibits A, G, J and K . The plaintiff's defence to this was that indeed there was this committee set up to investigate activities of the defendant corporation but that the same never recommended that he be terminated but that he being 58years old should be retired .
A close look at the evidence show that at page 113 of exhibit H the Armnad Thomas Committee setup by Cabinet on the 12th of September 2002 recommended in respect of Momoh Dangha the plaintiff as follows :
"With his current age of 58years he should be retired."
Every action against him should have emanated from this Report exhibit H, but this is far from the case, and worse so without reason as instead of being retired he was terminated. Following the conclusion of the Armand Thomas Committee to investigate the activities of SLRTC it submitted its findings to the CABINET through the Minister of Transport and communication's memorandum of 5th September 2003 and on the 17lh of September 2003 the said Cabinet made its conclusions as gleaned from exhibit K. On the 18th of September 2003, the Permanent Secretary of the Ministry of Transport and Communication wrote a letter to the Inspector General of Police which was copied to the
Interim General Manager Sierra Leone Road Transport Corporation as gleaned from exhibit G. A close look at exhibits H K and G shows how the decision to terminate was wrongly arrived at. Exhibit G is but clear on the fact that there was no Commission of Inquiry as the Defendant's solicitor would want this court to believe and that what the Cabinet considered on the 17th of September 2003 was the report of the Cabinet Appointed Committee on the Sierra Leone Road Transport Corporation and that it approved the recommendations in that the following officers including "Momoh Dangha driver should be dismissed with immediate effect". As stated above this is not what exhibit H recommended in respect of Momoh Dangha but worse still even the Cabinet conclusion of 17th September for which the letter of the !8th September was a follow up did not recommend Mr Momoh Dangha to be dismissed but terminated . This court is therefore at a loss on how such a recommendation came about .There is a wide gulf between dismissal and termination in that when you are dismissed you are not by law entitled to benefits whereas with termination you are. For a letter to come from so high an authourity like the Permanent Secretary in such a distorted and unprofessional fashion speaks volumes about that individuals incompetence. Worse still there is a wide gulf between what the Committee appointed to investigate recommended inrespect of the plaintiff as gleaned from exhibit H to wit that he be sent on retirement and that which the cabinet concluded on the 17th of September 2003 to wit, that the plaintiff be terminated with immediate effect .The implication on being sent on retirement as rightly said by DW2 under cross examination is that you are entitled to terminal benefits Gratuity and pension. In the case of termination you would not be entitled to Gratuity and pension. Was there a reason for divergence between the report exhibit H and the cabinet Conclusion of 17th September .2003? Was the cabinet in a position to decree a higher recommendation? In some situations it is normal for the higher authority which is the cabinet in this case to increase the punishment where the facts as presented show that the recommendation were lenient ? But was this the case with the plaintiff herein.
DW1 has noted that the plaintiff was the type of person that was involved in tickets malpractice in that he was engaged in an exercise for the repatriation of refugees of Sierra Leone from Guinea and that in that exercise the UNHCR had paid him the sum of USS
26,000 for 22 trips . He was expected to have accounted for that to the corporation which he failed to do. PW1 did not ever deny that he was part the driver that conveyed some of the refugees and said under cross examination that he received moneys in sealed envelopes from the UNHCR which he was requested to hand over to Mr. Elba the Traffic Manager or Mr. Douglas Mead the General Manager and this he did . A close look at exhibit H meaning the whole report and in particular sections 2 and 6 in particular shows that he was perhaps the most helpful to the committee regarding what transpired in the exercise of the repatriation for which he received moneys in sealed Envelopes for his Managing Director's attention. Mr. Douglas Mead the Managing Director denied that the plaintiff was ever involved in the exercise but the plaintiff was never afraid to say that he was involved .Worse still the committee set up as gleaned from exhibit H did make mention of the inconsistencies in the statement of Messrs Elba and Mead . Even with this fact of Mr Dangha's involvement in the repatriation exercise being within the purview of their knowledge the committee was able to come up with a recommendation see page 113 of the report that he be retired .That apart this court believes him when he said he handed the envelopes to Mr Mead or Elba .He was just a man in the middle of a great conspiracy who was used by unscrupulous individuals to his present predicament. No wonder the committee recommended his retirement. One is left with no alternative but to conclude that the officers recommended this form of payment in 1998 when democratic rule had been returned and there was normalcy in the activities of the country only to use and dump somebody down there. They were obligated to use a proper means of payment which for reasons best known to themselves they did not use. That apart one notes the inconsistency between DW1, DW2 AND DW3 on the this subject and note further that all 3 of them put together failed to establish that he never handed over the sealed envelopes to Mr. Mead . they were not there when he received the money and have not produced any document to this court to show that he received or how much he received DW1 said he received US$26,000 while DW2 & 3 said he received US$27,500. He is just a driver and even if a senior driver when a person as high as his manager instructs him he complies with it.
Against this back ground the termination was not only against the report of the investigating committee as gleaned from exhibit H but was unlawful and could not have been supported in any way
Even if it were the case that the plaintiff was to be terminated as recommended by exhibit K the cabinet conclusion the law required that they should go to through the correct procedure which was not the case. Even if the Cabinet conclusion says you should be terminated forthwith you must be terminated within the rules of the defendant Corporation as carefully laid out in exhibit J the terms and conditions of service.
The fact of the matter is that a letter of termination should have been addressed to the plaintiff pursuant to the said cabinet conclusion but there is none
As a terminated officer, however your benefits including your 3months salary inlieu of notice have also been carefully calculated to the tune of Le ll,394,399which when juxtaposed with the liabilities Le 13,950,000 reduces the liabilities to Le 2,555,601.
But by section 6c(i) of the 1995 Conditions of service ,your termination took effect from 18th December , 2003for which were due 3months salary in lieu of notice . Your total liabilities now stand as Le 2,555,601
WAS THERE ANY APPORTIONMENT OF LIABILITIES FOR WHICH THE SAME SHOULD BE DEDUCTED FROM HIS TERMINAL BENEFIT ?
On this issue the defendant relied on exhibit A which informed the plaintiff that:
"You may recall that consequent upon the cabinet conclusion and the resulting Government White paper, your services were terminated and you were to pay back monies and or properties owed the corporation"
According to DW1 based on the report of committee the committee apportioned liabilities to Momoh Danha and others. Liabilities had to be apportioned to him because he as engaged in a repatriation exercise for which monies where handed over to him in the sum of US$26,000 for 22trips for payment to the corporation but that this money was never paid to the corporation hence his dismissal and the apportioning of his liability.
Firstly, with respect to this exhibit A this court needs to observe that there was no commission of inquiry and that there is no Government White paper that follows from a Cabinet conclusion . White papers follow from a Commission of Inquiry and since this was not there was no White paper . There was a committee se t up to investigate the defendant corporation as a whole and it never recommended apportionment of liabilities for the plaintiff asgleabed from exhibit H It is clear to me that there were no apportionment of liabilities . DW2 under cross examination said
I see exhibit A. It talks about apportionment of liabilities. There is no where in the Report where he was requested to pay liabilities. There is no report as far as I know which says that he is liable to pay liabilities as detailed in exhibit A. I see exhibit G. It is a memorandum from the Permanent Secretary Ministry of Transport and Communication. In the said memorandum he is conveying what Cabinet concluded in respect of the plaintiff. I see exhibit K it is the Cabinet conclusion on the Armand Thomas Report. I see exhibit A. I believe that if he had been retired he would have received far more than he received as benefits. There is nothing in exhibit K which shows that he should pay anything to the defendant"
And this court can clearly confirm that no where from the Armand Thomas committee of investigation exhibit H neither in the Cabinet conclusions as evinced in exhibit K dated
17th September 2003 nor in the letter written from the Permanent Secretary to the Inspector General of Police exhibit G is it so stated.. DW1 did make mention of a loan again there is no proof of this. The conclusion which this court is able to draw is that there was no apportionment of liabilities such that the counter claim on which same is based fails.
In such circumstances all these considered and noting in particular that the defendanthave not queried the entitlements of the plaintiff in terms of emoluments this court therefore gives Judgment in favour of the plaintiff against the defendant.
Hon Mr Justice D. B. Edwards J