AFRIYIE VRS TOTAL PETROLEUM GH LTD (H1/172/2020) [2021] GHACA 38 (3 June 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA AD. 2021 CORAM: SENYO DZAMEFE J. A. (PRESIDING) NICHOLAS C. AGBEVOR J. A. JENNIFER A. DODOO J. A. CIVIL APPEAL No: H1/172/2020 3rd June, 2021 EDWARD OPPONG AFRIYIE PLAINTIFF/RESPONDENT VRS TOTAL PETROLEUM GH LTD DEFENDANT/APPELLANT JUDGMENT DODOO, JA (MRS) BACKGROUND TO THE APPEAL The Plaintiff/Respondent’s case is that he was employed as a General Manager for one of Defendant/Appellant’s dealers. On the death of the said dealer, he continued working for the Appellant as a dealer under an unwritten dealership’s contract. It was his case that every dealer earned commission both on supplies to the station and from profits of the management of shops after the deduction of rents and costs. In his estimation, between July 2016 and 31st October, 2016 he should have been paid a commission of GH¢92,228.41 and a further amount of GH¢9,193.64 as profits from running the shop. He thus sued for the following reliefs in his amended writ of summons found at page 21 of the Record of Appeal (ROA): (a) An order directed at the Defendant Company to pay to the Plaintiff the total commission of GH¢92,228.41 due to the Plaintiff between July 2016 and 31st October, 2016. (b) An order directed at the Defendant Company to pay to the Plaintiff, the total profit of GH¢9,193.64 for the running of the Total Shop between the period July, 2016 and 31st October, 2016. (c) Interest on the total sum due to the Plaintiff at the rate of 25% per annum from 31st October, 2016 till final date of payment. (d) Cost which includes legal fees. (e) Further Order(s) as this Honourable Court may see just. The parties would be referred to as the Appellant and Respondent respectively in this judgment. The Appellant in its defence averred that the Respondent was a Supervisor at the station of which the deceased Stephen Hagan was dealer. After the dealer’s demise, the Respondent was allowed to continue on in his role as Supervisor. They denied that he was their dealer and thus denied any indebtedness to him. The issues set down for determination by the trial court were: 1. Whether or not the Plaintiff worked for the Defendant Company as a Caretaker/Dealer? 2. Whether or not the Defendant Company admitted through correspondence that it is indebted to the Plaintiff in a sum? 3. Whether or not the Plaintiff is entitled to his claim? 4. Whether or not there was a formally signed dealership agreement between the Plaintiff and the Defendant? 5. Whether or not the Defendant Company held out the Plaintiff as the dealer of its Motorway 1 Service Station by allowing him to render accounts and sign documents in that regard? 6. Whether or not the Defendant Company opened a new dealership account for the Plaintiff? 7. Whether or not the Plaintiff abandoned his position as a Service Supervisor after Defendant’s appointed a new dealer for the Service Station? On 16th April, 2019, after a full trial, the court delivered itself and found in favour of the Respondent on all the claims endorsed on his writ. At p. 54 of the ROA, the Court delivered itself thus: This court finds that the nature of relationship between the plaintiff and the defendant was one of a contract for services in the nature of a caretaker-dealer. At all times from the 16th July to the 31st of October, 2016, contrary to the assertion of the defendant that it assumed the managerial risk for the running of the station, which it failed to prove. The plaintiff’s story is more probable than that of the defendant in that he was an entrepreneur who was in sufficient control and there was mutuality of obligations between him and the defendant with respect to accounts. The plaintiff has sufficiently proved his case and he must succeed in his claims against the defendant. Even though the plaintiff has denied ever seeing Exhibit “1”, which is the salary schedule for the months in contention, the signatures on those payment sheets match with his signature on his witness statement. The court would grant his reliefs endorsed on his writ of summons and statement of claim less whatever payments he has received for the four months being July, August, September and October 2016. The Appellant was therefore ordered to pay to the Respondent the following amounts: (a) Total Commission of GH¢92,228.41 less GH¢4,000.00 for the running of the service station from July to October 2016. (b) GH¢9,193.64 for the running of the Total Shop for the period July to October 2016. (c) Interest thereon calculated at the commercial bank rate on the sum total of the amounts due under paragraphs (a) and (9 b) from the date it accrued to the date of final payment. (d) Cost of GH¢15,000.00 awarded in favour of the plaintiff against the defendant. It is from this judgment that the Appellant has filed the instant appeal. The grounds of appeal are listed as: (a) That the judgment of the Court dated 16th of April, 2019 is against the weight of evidence on record. (b) That the Court erred in law when it held that the Plaintiff/Respondent was held out as a Dealer notwithstanding the fact that the Respondent received a monthly salary. (c) That additional grounds of Appeal may be filed upon receipt of a copy of the Record of Appeal. Counsel for the Appellant in his written submissions, referred to a number of authorities, including Abbey & Others v. Antwi (2010) SCGLR 17, Tuakwa v. Bosom (2001-2002) SCGLR 61 and Djin v. Musah Baako (2007-2008) SCGLR 686 @687, on what is expected of an appellant who complains that the judgment is against the weight of evidence. Counsel also invited the Court to apply Rule 8(1) of the Court of Appeal Rules, 1997 (CI 19) to rehear the matter by perusing the entire record of appeal to ascertain for itself whether the conclusions of the trial court are founded in law and based on the evidence before it. Counsel submitted that the Respondent had denied that he was paid a salary as he was a dealer. It was their contention that contrary to assertion that he was never paid a salary, the Exhibit 1 series indicated that he did receive salary and that he signed a salary voucher. Counsel submitted further that though the Respondent denied the signatures on these vouchers was his, the court itself found as a fact that the signatures on the vouchers matched the signature on his witness statement. As a result, Counsel submitted that on holding that the Respondent received monthly salaries from the Appellant, the Court fell into grave error by holding that the Respondent was a commission earner and was thus entitled to his claim. Counsel also submitted that had the Court analyzed the Exhibit 1 series properly, it would have found in favour of the Appellant. The Appellant contended that the Respondent never led evidence in proof of the awards of GH¢92,228.41 and GH¢9,193.64 as claims in commission and profits. On the other hand, the Respondent was of the view that from the totality of the evidence, there were several documents which the Respondent signed with the Appellant which demonstrated amply that the Appellant Company had held the Respondent as a dealer and that he was made to believe that he was working for the Appellant Company as a dealer. He made reference to Exhibits “B” and “E” found at pages 44 and 47 of the ROA. It was his contention that having been made to work a dealer the Appellant could not now turn round and deny him of that position. No additional grounds of appeal were filed, so ground (c) is dismissed. We therefore proceed to determine the appeal on the following grounds: (a) That the judgment of the Court dated 16th of April, 2019 is against the weight of evidence on record. (b) That the Court erred in law when it held that the Plaintiff/Respondent was held out as a Dealer notwithstanding the fact that the Respondent received a monthly salary. An appeal as indicated by Rule 8(1) of the Court of Appeal Rules CI 19, is by way of rehearing. What this provision seeks to say is that the appellate court will deal with the matter as if it was hearing the matter at first instance. See the cases of Mamudu Wangara v. Gyato Wangara (1982-83) GLR 639 @ 655 CA; Ansu-Agyei v. Fimah (1993- 94) 1 GLR 299 at 305-306 SC and Praka v. Ketewa (1964) GLR 423 @ 426, SC. In rehearing the matter, the appellate court is required to examine the whole record of appeal, taking into account all the evidence, oral and documentary, to satisfy itself that the judgment is amply supported by the evidence on record, upon the preponderance of the probabilities. See Koglex Ltd (No. 2) v. Field (2000) SCGLR 175 @ 184; Tuakwa v. Bosom (2001-2002) SCGLR 61 @ 65 and Ackah v. Pergah Transport Ltd (2010) SCGLR 729. In this regard, the appellate court is enjoined to put itself in place of the trial court and evaluate the evidence. In so doing, it could make inferences from the facts on record and either affirm the judgment or interfere with the judgment where it deems fit. In his witness statement, the Respondent stated in paragraph 7 as follows (7) That Mr. Stephen Hagan died sometime in July 2016, and upon the death of Mr. Stephen Hagan, the Defendant Company closed the dealership account of Mr. Hagan;, and officers such as the Retail Network Manager and the Territory Manager of the Defendant Company approached me and discussed the situation with me and entrusted the station and its Total Shop in my hands, and I performed the duties of a dealer even though I had not formally signed a dealership agreement with the Defendant Company. This has been confirmed by a letter the Defendant Company wrote to my lawyers (Exhibit H). The trial judge found in favour of the Respondent that he was indeed a dealer employed by the Appellant. Although the Respondent denied ever having seen the Exhibit “1” series, the trial judge found as a fact that the Respondent’s signatures on Exhibit “1” were similar to the signature he had signed on his witness statement. The Exhibit 1 series found at pages 84-88 of the ROA are Total Petroleum Ghana Limited’s Salary Sheets for May, July, August, September and October 2016. The trial judge found further that the Respondent did receive payments for 4 months being July-October (see p. 167 of the ROA). The Respondent had averred that his appointment as a dealer commenced from July of 2016. In Respondent’s own evidence at p. 71 of the ROA this is what transpired in cross- examination: Q: From your own Exhibit “C” your statement that number 278088 is dealer account is not true? A: I disagree if I explain, the Court will understand. The time I was asked to run the Motorway Filling Station as dealer so many things were discussed …. After the death of Mr. Hagan, Emefa Kwami met me and discussed that on the basis of the good job I was doing for Mr. Hagan and discussed with me the opening of a commission account in my name and I agreed to the proposal. At the meeting Emefa told me that if I could work from July 4th, July-December 31st 2016 if I am able to make a commission of GH¢120,000.00 they would employ me at Total as a dealer. It was further agreed by the said Emefa Kwami that upon appointment, I could be transferred to any other filling station. The same exhibit C. that is why the account number is caretaker account … From the Respondent’s own narration, he was told he had to (a) work from July to December and (b) make a commission of GH¢120,000.00 before he would be employed as a dealer. Since certain conditions precedent had to be fulfilled before he could be appointed as a dealer, the questions to be asked are did he fulfill the conditions? Did he work from July to December and did he make a commission of GH¢120,000.00 to qualify him to be considered as a dealer? The Respondent never led evidence to prove that he worked from July to December and that he made a commission of GH¢120,000.00. Was he ever employed as a dealer? By the Respondent’s own account, he worked at the Motorway “1” station in a caretaker capacity between July and October 2016 (See p. 39 of the ROA) Respondent in paragraph 6 of his witness statement (p. 23 ROA) states: Plaintiff further says that the Defendant Company consulted him and asked him to take over the station, and it opened an entire new and different dealer account for Plaintiff and also created an email for him for official correspondence with the Defendant Company and his dealership account number was 278088 which was different from the one owned by Mr. Stephen Hagan (deceased) However, Exhibit “C” shows that the Account Numbered 278088 was labelled TPGL CARETAKER MOTORWAY 1 S/S TEMA and was not in Plaintiff’s name as a dealer. Exhibit “E” refers to MOTORWAY 1 TPGL CARETAKER. See also Exhibit “F” (p 48-49 of the ROA). The narration states “Cash in till at date of closure of Caretaker GH¢2568.40 and Debited to TPGL Caretaker and Credited to TPGL P & L for November 2016 GH¢9193.69” Never was he referred to as a dealer in Exhibit “F”. Exhibit “H” referred to him as a dealer. Exhibit “H” was however in response to Exhibit “G” which was written by the Respondent’s Solicitor captioned: DEMAND NOTICE FOR THE PAYMENT OF COMMISSION DUE TO OUR CLIENT MR. EDWARD OPPONG AFRIYIE (DEALER) TPGL CARETAKER MOTORWAY 1 (p. 52 of the ROA). Therefore, the response and caption were in reaction to the topic under reference which had been initiated by the Respondent and not an affirmation by the Appellant of his position as Dealer. In the body of Exhibit “H”, the Appellant denied categorically that the Respondent had been appointed as a Dealer. The contents would be reproduced for its full effect: • Mr. Oppong was employed by the late Mr. Stephen Hagan (former dealer of Motorway I) as his supervisor. He remained an employee of Mr. Hagan until his death in July 2016. • Upon the death of Mr. Hagan, Mr. Oppong was asked to take over as caretaker to manage Motorway 1 station pending the appointment of a substantive dealer (stop gap measure). • Mr. Oppong remained a caretaker till the appointment of Michael Obiri Kumi as substantive dealer in November 2016. Michael Kumi offered to employ Mr. Oppong as his supervisor but he declined the offer. During the period he was caretaker he was paid for his services every month evidenced by the attached salary sheets. • Mr. Oppong was never given an appointment letter as a dealer neither did he sign a dealership agreement to make him a dealer nor was a dealership account or email opened for him. His claim that he was dealer for the station is totally unfounded. • Upon the closure of the caretaker account, it was agreed in-house to pay him a percentage of the profit realized on the caretaker account during the period he was caretaker. Reconciliation of his account however is still pending and yet to be completed. • We anticipate completion within the shortest possible time and will revert to you once completed. It has been held in several decided cases that where an (as in the instant case) appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against. See Djin v. Musah Baako (2007-2008) SCGLR 686 @691. From the evidence, the Appellant had never considered the Respondent as a Dealer and never officially employed him as such. Exhibit “H” which had referred to him as a dealer in its caption was in response to communication initiated by the Respondent. It was never the case that the Appellant had regarded him as their dealer or had ever held him out as a dealer. The Respondent has requested for an amount of GH¢92,228.41 and GH¢9,193.64 but aside from providing these figures, he did not lead evidence to prove how he arrived at these amounts. The question which remains unanswered is how did he arrive at the computation? On the other hand, Exhibit “1” series, (the Total Petroleum Ghana Ltd Salary Sheet) (pp 84-88 ROA) tendered in evidence by the Appellant, show that the Respondent from the months of July, August, September and October took salary from the Appellant. If he was a dealer as he alleges, there would have been no need for him to have received salaries as he would have received commission as a dealer. The Appellant agreed to pay the sum of GH¢33,795.19) to the Respondent. See paragraph 4 of Exhibit “I” (p. 53 of ROA) and this was explained by its representative in answer to a question posed at p. 111 and answered at p. 112 of the ROA thus: Q: Now in the subsequent paragraphs of Exhibit “1” the legal officer of the defendant company makes the proposal to pay the plaintiff an amount of GH¢33,795.19, can you confirm that to the Court? A: Yes, my Lord. If I may add with reference to the Exhibit “H” earlier referred to this Court. Bullet point 5, it reads “upon closure of the caretaker account, it was agreed in house to pay the Plaintiff a percentage of the profit realized on the caretaker account during the period he was caretaker. This was a gesture of goodwill from the defendant’s company for his services. Dealers are not paid such amount. All the commission they earn is already theirs and it is in their custody.” It is in our considered opinion that the evidence shows that the Respondent was a caretaker and not a dealer and that the account numbered 278088 was not a dealer account but a caretaker account opened temporarily to fill the vacuum left by the deceased dealer, Mr. Stephen Hagan, pending the appointment of a new dealer. A new dealer was subsequently appointed and the Respondent refused to work for this new dealer in the position he had held prior to the death of Mr. Hagan. The trial court failed to take into consideration that the Exhibit “1” series showed that the Respondent far from being considered a dealer was taking salary as pertained to an employee. The Appellant’s witness at p. 112 of the ROA explained this position further when he stated in response to these questions in cross-examination: Q: You are aware that the Defendant company is prohibited from dealing in retail business in petroleum products. Are you aware? A: That is not correct. Q: And that is why the dealers and caretakers are appointed by the Defendant to do retail upon which they earn commission is that not so? A: That is not correct. The defendant company carries out retail business through its dealers who earn their commission. Caretakers come in as a stop gap measure in the abrupt absence of a dealer as was the case of the deceased Mr. Stephen Hagan till a substantive dealer is appointed to ensure the continuation of the business with the public. And I earlier said caretakers are paid for their services. In its duty to rehear the matter, an appellate court is in the same position of the trial court and can make up its own mind on the facts and also draw its own inferences from the facts as found. Based on its evaluation of the evidence on record, the appellate court may interfere with the findings of facts made by the trial court, where good reasons exist for such interference. The authorities are however clear that findings of fact made by a trial Court can only be interfered with where such findings are not supported by the evidence on record; are perverse, or are based on wrong inferences drawn from established facts. These principles have been established in cases such as Simmonds v. Trassaco Estate Development Company (2010-2012) 1 GLR 393 CA and Jass Company Ltd & Anor v. Appau & Anor (2009) SCGLR 265. Though it was the exclusive duty of a trial judge to make primary findings of facts an appellate court was obliged to evaluate the evidence in coming to a decision whether the conclusions and findings of the trial court, which are being impugned, are supported by the evidence on record. It is only when the findings of fact made by the trial court are not supported by the evidence on record that the appellate court would interfere and substitute its own findings for those of the trial court. Findings made by a trial court would be irrefutable when: a. They are supported by the evidence on record. b. They are based on the credibility of the witnesses. c. Where the trial court had the opportunity to see and observe the demeanour of witnesses; and was satisfied with the truthfulness of their testimonies. The following are situations where the findings of the trial court may be interfered with: i. Where the court had taken into account matters which were wrong in law. ii. Where the court excluded matters, which were critically necessary for consideration. iii. Where the court had come to a conclusion which no court, properly instructing itself, would have reached; and iv. Where the findings were not proper inferences drawn from the facts. See the case of Amoah v. Lokko & Alfred Quartey (substituted) Gloria Quartey & Others (2011) 1 SCGLR 505. With the above considerations in mind, and from the evidence at its disposal, this Court finds that caretakers are not synonymous with dealers. Dealers earn commission. The plaintiff as caretaker was paid for his services. He cannot receive salary and also dealer’s commission as the two are mutually exclusive. We also find that the Respondent has not been able to satisfactorily prove that he was employed by the Appellant as a dealer in its establishment. It is trite learning that in law, he who asserts must prove. It is a basic principle of the 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. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. 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 the fact is more reasonable than its non-existence. See Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736. The burden of persuasion and the obligation to adduce evidence are defined in Sections 10(1), 11(1) and 11(4) of the Evidence Act, 1975 (NRCD 323) as follows: Section 10(1) For the purposes of this Act, 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. Section 11(1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. Section 11(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. The Respondent has failed to discharge the burden placed on him that he was entitled to the reliefs that he claims. We find that the trial court excluded matters, which were critically necessary for consideration by ignoring the significance of the Exhibit “1” series which showed that the Respondent earned salary for the 4 months that he claimed to have been entitled to a dealership commission. The trial court also made a finding that the Appellant had by its conduct treated the Respondent as if he was a dealer. This finding was not a proper inference drawn from the facts. We would therefore interfere with the judgment by setting the orders made therein aside. Consequently, there can be no order directed at the Appellant to pay to the Respondent the sums of GH¢92,228.41 and GH¢9,193.64. However, the Appellant had offered to pay him an amount of GH¢33,795.19 as a goodwill gesture in their communication of 17th November, 2017. (See Exhibit I at p. 53 of the ROA). They are directed to pay that amount. It will attract no interest as it was offered and refused by the Respondent. The appeal succeeds and the orders made by the trial judge are hereby set aside. I AGREE I ALSO AGREE SGD JENNIFER AMANDA DODOO (MRS) (JUSTICE OF APPEAL) SGD SENYO DZAMEFE (JUSTICE OF APPEAL) SGD NICHOLAS A. AGBEVOR (JUSTICE OF APPEAL) COUNSEL IRENE DAVIS FOR DEFENDANT/RESPONDENT WITH CHARLES OKYERE KWAPONG SILAS OSABUTEY FOR PLAINTIFF//RESPONDENT 16