Kwesi Debrah Owiredu Vrs Phills Pharmaceuticals Ghana [2022] GHACC 57 (6 October 2022)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON THURSDAY, 6TH OF OCTOBER 2022, BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS) CIRCUIT COURT JUDGE C3/10/2020 KWESI DEBRAH OWIREDU PLAINTIFF VRS 1. PILLS PHARMACEUTICALS GHANA 2. JOHN KOJO AMOAKO DEFENDANT JUDGMENT Plaintiff a former employee of 1st Defendant on the 11/6/2020 issued the instant writ of summons together with its accompanying statement of claim against 1st Defendant, a limited liability company and 2nd Defendant in his capacity as the chief executive officer of 1st Defendant. According to the statement of claim filed by Plaintiff, he was employed by 1st Defendant in 2017 and was given his employment contract via email in February 2018 as assistant Manager operations sales and marketing on full time basis. On 27/4/2020, without due notice to him and without any justification or reason, 2nd Defendant acting for and on behalf of 1st Defendant arbitrarily terminated his employment contract and also failed to give him a month’s notice nor a month’s salary in lieu of notice. Further Plaintiff averred in his statement of claim that his contract of employment had attached to it an official vehicle with a condition that the sum of Gc1000 would be deducted every month from his salary to defray the cost of the vehicle. Defendants therefore gave him vehicle GX 2034-18 and deducted the said amount form his salary from February 2019 to April 2020. Plaintiff contends that it was agreed that in the event of termination, he would be given “first option of refusal” however Defendants upon terminating his contract has taken the vehicle under his control and have also failed to refund the monies deducted form his salary over the period to him. Plaintiff further contended that Defendant had failed to pay his SSNIT and other statutory payments. All efforts by his counsel to get Defendants remedy their unlawful acts had proved futile. Plaintiff stated that he had spent GHC2,300 on transportation to the office of Defendant in his quest to get the unlawful acts remedied and in job seeking. He therefore per his writ of summons prays the court for the following reliefs jointly and severally against the Defendants; a. A declaration that the termination of the Plaintiff’s employment by the Defendants 27th April, 2020 is unlawful, unfair and without any legal or lawful basis whatsoever; b. An order for the payment of on (1) month’s basic salary in the sum of Two Thousand Eight Hundred Ghana Cedis (GH¢2,800.00) in lieu of notice for termination of employment; c. An Order for the payment of twelve (12) months basic salary to the Plaintiff as compensation for loss of salary in the sum of Sixteen Thousand, Eight Hundred Ghana Cedis(GH16,800.00) d. An order for the payment of special damages in the sum of Two Thousand, Three Hundred Ghana Cedis (GH2,300.00); e. An order directed at the Defendants to pay all the Plaintiff’s SSNIT arrears as well as all arrears of his provident fund; f. An Order directed at the Defendants to return vehicle number GX 2034-18 to Plaintiff. (not granted) OR IN THE ALTERNATIVE g An order directed at the Defendants to render account on all deductions made from the Plaintiff’s salary towards the payment of the price of the vehicle, with same paid back to the Plaintiff; h. An Order for the payment of interest on all the amounts stated above at the prevailing interest rate from April 2020 until date of final payment; i. Cost of litigation on full indemnity basis; j. Any further Order(s) that the Court shall seem meet. Defendant in his statement of defence and counterclaimed admitted that he was responsible for Plaintiff and other employees SSNIT contributions and other statutory payments and was in active engagement with SSNIT to regularize the payment of the contributions of all 1st Defendant’s workers. Defendants admits terminating Plaintiff’s employment on 27/4/2020 and contends that Plaintiff was engaged in conduct prejudicial to the business interest of 1st Defendant things persistently acting in breach of his duties to 1st Defendants. Defendants further admitted that per the terms of employment contract Plaintiff has with 1st Defendant, same was liable to termination by either by a month’s notice or a month’s salary in lieu of one month notice with 1st Defendant opting for the one month salary in lieu of notice. Defendants however contended that 1st Defendant was committed to paying the one month salary in lieu of notice as provided under the contract of employment after plaintiff returns to 1st Defendant its badge and car keys. In respect of the vehicle, Defendants avers that same was purchased by 2nd Defendant for Plaintiff based on Plaintiff imploring him to purchase a vehicle for him. They contend that it was agreed that the sum of GHC1000 would be deducted from the salary of Plaintiff every month to defray the purchase price of the vehicle which is GHC70,000 which was made known to Plaintiff before he took possession. According to Defendants, per the agreement, Plaintiff was responsible for the maintenance of the vehicle since the vehicle was assigned for his non-official business with title of the vehicle still vested in 1st Defendant until the full payment of the purchase price by Plaintiff. However, at the time of the termination of Plaintiff’s employment, only Ghc15,000 had ben deducted in payment of the vehicle leaving GHc55,000 outstanding. Defendant further contends that he advanced to Plaintiff financial assistance of GHc15,000 for his rent but Plaintiff had paid obly GHc1000 leaving GHc14,000 outstanding. Defendants therefore counterclaimed for the following reliefs; i. An order for the recovery of the sum of fourteen thousand cedis, (GH¢ 14,000.00) being the unpaid amount of the loan granted to Plaintiff by 1st Defendant. ii. An order directed at Plaintiff to return all properties of 1st Defendant in is possession to 1st Defendant. Plaintiff in his reply and defence to Defendants counterclaim denied the alleged financial assistance of GHC15,000 and conducting himself in a manner prejudicial to the business interest of 1st Defendant contending that throughout his period of employment he was never queried over any issue. Plaintiff denied the purchase price of the vehicle. At the close of pleadings the following issues were set out for trial: That the issues for trial are as follows: a) Whether or not the Plaintiff's employment was lawfully terminated by the Defendants. b) Whether or not vehicle with registration number GX 2034 - 18 was unlawfully ceased from the Plaintiff by the Defendants. c) Whether or not the Plaintiff is entitled to a refund of all contributions made towards the payment of vehicle with registration number GX 2034- 18. d) Whether or not the Defendants has satisfied their obligations to pay all Plaintiff's SSNIT and provident fund contributions. e) Whether or not Plaintiff breached terms of his employment contract with 1st Defendant. f) whether or not plaintiff owes Defendant a loan amount of GHC14,000.00. The Standard of proof in civil case such as the present action is proof of the preponderance of probabilities. See sections 11(4) and 12 of the Evidence Act, 1975, NRCD 323(hereinafter referred to as NRCD 323. Section 12(2) of Act 323 defines preponderance of probabilities as “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. In the case of ADWUBENG V DOMFEH (1997-98) 1 GLR 282 it was held per holding 3 as follows: “ And sections 11(4) and 12 of NRCD 323 clearly provided that the standard of proof in all civil actions, without exception, was proof by a preponderance of probabilities. Accordingly, the cases which had held that proof in title to land required proof beyond reasonable doubt no longer represented the present state of the law”. Section 14 of the Evidence Act 1975, NRCD 323 provides “except as 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 has always been the position of the law. Also in the case Faibi vs. State Hotels Ltd [1968] GLR 411, it has been held that the onus in law lay on the party who would lose if no evidence were led in the case and where some evidence were led, it lay on the one who would lose if no further evidence were led. Parties herein are both Plaintiffs in respect of their respective reliefs to the court and at the same time Defendants to the other’s claim. This is because a counterclaim is a fresh action and a Defendant who is actually the “Plaintiff” to the counterclaim assumes the same burden in respect of the counterclaim. Defendant per his counterclaim assumes the same burden discussed above in respect of their reliefs. In the case of ARYEH & AKAKPO V AYAA IDDRISU [2010] SCGLR 891, the Supreme Court unanimously held that a party who has counterclaimed bore the burden of proving his counterclaim on the preponderance of probabilities and would not win on that issue only because the original claim had failed. Brobbey JSC at holding 5 in the case of In RE ASHALLEY BOTWE LANDS, ADJETEY AGBOSU AND OTHERS V KOTEY AND OTHERS (2003-04) SCGLR 420 held that the effect of sections 11(I) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: “A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact, or of an issue and that determination depends on evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour” Section 11(1) of, NRCD 323 provided “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 on the issue against that party.” Plaintiff and Defendants therefore both carried the burden of leading sufficient evidence to establish their respective cases on the balance of probabilities and not on the weakness of the other’s case. Plaintiff testified personally and called one witness, William Kwofie, a former accountant of 1st defendant. 2nd Defendant testified on behalf of 1st Defendant an don his own behalf. whether or not the Plaintiff's employment was lawfully terminated by the Defendants. & Whether or not Plaintiff breached the terms of his employment contract with 1st Defendant. Permit the court to discuss issues a and e together as they are intertwined and correlated and analysis may require the same facts and authorities. Plaintiff’s evidence is that he was employed 1st Defendant as a development manager with additional duty as a procurement manager. He carried out these responsibilities faithfully from his period of employment in December 2017 until the wrongful termination of same in April 2020. According to Plaintiff, he had never been queried throughout the period of employment neither had he been subjected to any disciplinary process. Plaintiff stated that he was never given any notice of termination or salary in lieu of notice paid to him by the Defendants prior to the termination of the employment. He therefore contended that his termination of employment by Defendants was unlawful. A contract of employment may be terminated by either party to the contract by giving specified period notice to the other of the termination. Section 17 of Act 651 provides the period of notice of termination depending on the years of employment . Section 17 (1) of Labour Act, 2003, Act 651 Act 651 provides thus “Notice of termination of employment (1) A contract of employment may be terminated at anytime by either party giving to the other party, (a) in the case of a contract of three years or more, one month’s notice or one month’s pay in lieu of notice; (b) in the case of a contract of less than three years, two weeks’ notice or two weeks’ pay in lieu of notice; or (c) in the case of contract from week to week, seven days’ notice. Section 17(3) of Act 651 requires such notices to be in writing. Defendants agree that per the terms of contract of employment a party must give one month notice of termination or one month salary in lieu of notice. Defendants further admit that they failed to give Plaintiff one-month notice of termination or one month salary in lieu of notice. Defendants argument that they are ready to pay the one-month salary in lieu of notice as soon as Plaintiff returns the company badge and car keys to them. Defendant tendered in evidence a sample of the contract of employment he executed with Plaintiff as exhibit 2. Plaintiff failed to tender his employment letter. Counsel for Plaintiff in his written address challenges the admissibility of the of exhibit 2 contending that same was not executed by the parties and edges the court to take zero probative value of same. A perusal of exhibit 2 reveals same is not executed by the parties. Defendant explained that exhibit 2 was the email version of the contract 1st Defendant executed with Plaintiff. Exhibit 2 is a sample only of the contract of employment executed between the parties but is not the said employment contract. The court therefore cannot base its determinations on the contents of exhibit 2 which is an unexecuted contract of employment allegedly pulled out of an email of 2nd Defendant.. This not withstanding the court finds per the evidence on record which is not in issue that under the contract of employment executed between parties herein a party was to be given one-month notice or one month salary in lieu of notice upon determination of the employment. In the case of KOBEA V TEMA OIL REFINERY [2003-2004] 2 SCGLR 1039, THE SUPREME COURT HELD PER DR. Seth Twum JSC as follows “At common law, an employer and his employee are free and equal parties to the contract of employment. Hence either party has the right to bring the contract to an end in accordance with its terms. Thus an employer is legally entitled to terminate an employee whenever he wishes and for whatever reasons, provided only that he gives due notice to the employee or pay him his wages in lieu of the notice. He does not even have to reveal his reason, much less to justify the termination.” From the statute provision and case law supra, the right to terminate a contract of employment must be in terms of the termination period specified in the contract or in accordance with section 17 of Act 651. There is no evidence on record to the effect that the contract of employment executed by the parties stipulate that notice of termination or payment of salary in lieu of notice can be dispensed with or withheld pending the return of properties of the other party during termination of contract of employment Therefore although Defendant legally have the right to terminate the contract of Plaintiff without assigning any reason whatsoever to same and by merely giving the one month notice or one month salary in lieu, this legal requirement is not subject to any condition or contingences. Defendant therefore cannot subject statutory requirements to his own conditions by failing to give the notice or salary in lieu of notice, Defendants have breached the terms of contract of employment. The termination therefore cannot be considered lawful in accordance with the contract of employment. By failing to give Plaintiff one month notice of termination or one month salary in lieu of same, Defendants failed to comply with the admitted terms of termination Plaintiff’s employment per their contract of employment. Defendants further contends that Plaintiff in the course of his employment was insubordinate, misconducted himself, betrayed the 1st Defendant and breached the contract of employment resulting in the termination of employment. A termination of employment may be considered fair if it satisfy section 62 of Act 651, Section 62 of Act 651 states as follows: “a termination of a worker’s employment is fair if the contract of employment is terminated by the employer on any of the following grounds: (a) that the worker is incompetent or lacks the qualification in relation to the work for which the worker is employed; (b) the proven misconduct of the worker; (c) redundancy under section 65; d) due to legal restrictions imposed on the worker prohibiting the worker from performing the work for which the worker is employed. ” Section 63(4) of Act 651 further provides that termination may be unfair if the employer fails to prove that, (a) the reason for the termination is fair, or (b) the termination was made in accordance with a fair procedure or this Act. "63 (4) of Act 651 states that a termination may be unfair if the employer fails to prove that, (a) the reason for the termination is fair; or (b) the termination was made in accordance with a fair procedure or this Act" In the unreported Supreme Court case of George Akpass v Ghana Commercial Bank, civil appeal no. J4/08/2021 Nene Amegatcher JSc delivering the majority decision of the court held as follows "The concept places an obligation on the employer to justify the termination of the appointment of a worker. The overarching condition is that the reason for the employee's termination must be fair and in accordance with due process of law……… Where the termination is not by mutual agreement and the employer is compelled to terminate on other grounds provided for in the contract of employment such as ill-treatment or sexual harassment, medically unfit for the employment or inability of the worker to perfume his role due to sickness, disability, incompetence or lack of qualification for the position employed or other reasons which do not merit summary dismissal, then the protocol envisaged under Act 651 is that the reasons for the termination must be clearly stated and must be seen to be fair. This is because though the employer has the power by contract and law to terminate on those grounds, that power has been curtailed by statute and can no longer be exercised arbitrarily or capriciously. It must justifiably be substantively and procedurally seen to be fair. Failing that acid test, the courts will have power to inquire into the fairness of the decision to terminate and pronounce on it. The missing link, however, in this novel provision is the measure of fairness and unfairness.” According to the Defendants, Plaintiff’s employment with 1st Defendant was not fruitful due to many job malpractices and gross insubordination on his part. According to Defendants, they provided all the appropriate working arrangements for Plaintiff and other employers and invested in plaintiff’s well being. However 2nd Defendant as Plaintiff’s boss and supervisor have had to on several occasions warn and question Plaintiff about his betrayal to his employer and gross misconduct. They further testified that during the Corvid-19 pandemic, Plaintiff failed to stock 1st Defendant with Nose Mask and hand sanitizers at a time when the said products were in high demand but rather fully stocked his car booth with the said products which he supplied to the customers of 1st Defendant in clear breach of his terms of employment. Defendants contended that they were ready to pay the one- month salary in lieu of notice to Plaintiff upon plaintiff returning the company’s badge and car keys. 2nd Defendant testified on behalf of the 1st Defendant and on his own behalf. Defendants called no witness in support of their assertions. Defendants tendered in evidence in support of this assertion exhibit 3, 3a and 3b being photographs of its storage room which he claims were taken by Plaintiff for distribution to other competitors which he intercepted. Under cross-examination, 2nd Defendant admitted that he did not get exhibit 3 series directly from Plaintiff but contended that plaintiff admitted the offence and apologized for it. Plaintiff in his pleadings and evidence on oath and cross-examinations disputes vehemently Defendants claim that he was insubordinate, misconducted himself and breached the terms of employment among others. Below are excepts of the cross-examination of 2nd Defendant: Q. Kindly look at exhibit 3 series how did you come by the pictures? A: Q: A: Q: A: Q: I came by these pictures from an employee of Pills pharmaceuticals responsible for the branch these pictures were taken. You agree with me that exhibit 3 series did not emanate from plaintiff? Directly no but he accepted during it and he apologized for it when he was confronted. I put it to you that there is no such acceptance and apology emaciating from plaintiff That is false. Plaintiff was not the only one there. I summoned the gentleman responsible for the shop and plaintiff apologized. Can you explain how your exhibit 3 series constitute a breach of your trade secrets A: Q: A: Q: A: Q: A: Q: A: It contradicts appointment letter the two of us had. By appointment letter you mean exhibit 2 not so? Yes Kindly show us in exhibit 2 that exhibit C series is in breach of. Section 7 (1) (a to f) You have told the court you warned plaintiff on several occasions with regards to the conduct of his work correct Yes my lady Do you have anything to show that Plaintiff received even a single query from you throughout? No in paper form but he was once or twice called with others. We had healthy discussions some of which he apologized and he was forgiven. There are people in the office who would attest to these. (emphasis mine) Q: I put it to you that there is nobody to attest to what you just said that why you did not file any witness statement for them to testify on your A: Q: A: Q: A: Q: A; Q: behalf. False I put it to you that plaintiff never misconducted through the entire period he worked with you That is false. I further put it to you that plaintiff never stocked his car both with any supplies of 1st defendant and had same delivered to rival companies who you express knowledge. That is false. Even on his last days some amount of goods were found at his car boot. I put it to you that the goods found at his car booth was not irregular because he used the said vehicle for 1st Defendants work. False I further put it to you that plaintiff has never owed a private pharmacy and you have nothing to show. A: That is false. He contacted some of my staff to go work for him in that company. Q: What is the name of the company you allege is owed by plaintiff A: Q: A: Q: A: I don’t know the name I further put it to you that plaint never changed the password of 1st Defendant’s website or directed 1st Defendant’s private business a matter currently under investigation False. In that technology doesn’t lie. He had his face and name on our twitter handle. Kindly tell the court the specific employees of the 1st Defendant who were poached by plaintiff to stop working for 1st Defendant Plaintiff did not poach but he contacted them and they informed me. One is Rachel an employee and another person who works on our software. He is called Bernard. Q: So you will agree with me that there is nothing to prove the said poaching you are alleging not so As seen from the cross-examination, plaintiff vehemently disputed all allegations of insubordination, misconduct or breach of terms of contract or betrayal of 1st Defendant. Although 2nd Defendant contended that some of the queries were done in the presence of other persons, and Plaintiff had poached employees of 1st Defendant to stop working for him he failed to call such persons as witnesses. Prove in law entails more than merely mounting the witness box and repeating one’s assertions on oath. The supreme Court in the case of ARKAH V PEPRAH TRANSPORT LTD [2010] SCGLR 728 at 736 expounded on burden of proof as follows; “ it is basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence on 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 it 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 jury. It is trite 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 probable than its non existence.” Exhibit 3 series fail to proof the allege breaches, insubordination and misconduct of Plaintiff. All exhibit 3 series discloses on the face of it is a storage facility with boxes well arranged and nothing more. The fact that the said pictures were taken by Plaintiff cannot be found per the evidence on record as the person who informed 2nd Defendant about same was not called to testify. The evidence of Plaintiff having taken those pictures to be distributed to competitors of 1st Defendant remains unproved. Defendants fails to prove their claims of misconduct, breach of contract etc against Plaintiff on cogent evidence. Defendant fails to satisfy the court that the termination of the contract of employment of Plaintiff was in accordance with the contract of employment executed by the parties, that same is fair termination in accordance with the Labour Act. The court therefore finds the termination of employment of Plaintiff on the 7th day of April 2020 by Defendants unlawful. Plaitntiff is accordingly entitled to one month salary in lieu of notice. The Plaintiffs further prayed for 12 months salary as compensation for unlawful termination of his employment. In awarding compensation, the court considers the damages that has occasioned the Plaintiff which are direct, natural or probable consequence of the action complained of. The Supreme Court in the case of ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD[1989-90] 2 GLR 623 held “On the measure of damages for breach of contract, the principle adopted by the courts was restitutioin integrum, ie if the plaintiff has suffered damage not too remote he must, as far as money could do it, be restored to the position he would have been in, had that particular damage not occurred. What was required to put the plaintiffs in the position they would have been in was sufficient money to compensate them for what they had lost” Plaintiff’s employment was terminated during peak of the Corvid-19 pandemic. A period when it was employment opportunities were at its lowest. Getting employment after the Corvid -19 Pandemic when businesses were financial difficulties would not be The court also takes into consideration the fact that most businesses have been badly affected by the Corvid-19 pandemic and Defendants have had their fair share of post Corvid challenges. With all these factors taken into consideration, the court awards 6 months salary at GHC2,8000 a month in favour of Plaintiff against Defendants as compensation for the unlawful termination of his employment contract. whether or not vehicle with registration number GX 2034 - 18 was unlawfully ceased from the Plaintiff by the Defendants. & Whether or not the Plaintiff is entitled to a refund of all contributions made towards the payment of vehicle with registration number GX 2034- 18. Plaintiff contends in his evidence that as part of his work conditions, defendant was to provide him with an official vehicle for the discharge of his duties in accordance with the conditions of services but failed to do so. Subsequently in 2018, due to his had work, 2nd Defendant purchased a vehicle for him to be used by him in order to further the business and communicated the price of the vehicle as GHC60,000 without any proof. A monthly deduction of GHC1000 was made from his salary to cater for the gradual purchase or installment payment of the vehicle so the ownership of the vehicle could be transferred to him upon completion of payment. Plaintiff contended that he had never requested for a vehicle for his non-official use as he had a vehicle for his personal use already. He stated that it was agreed between him and the defendants that upon his resignation or termination of employment, any deductions made from his salary will be refunded to him. According to Plaintiff, in February 2018, Defendant refused a financial assistance request he put in and on his recommendation, he agreed to an amount of GHC600 being deducted from his salary from March 2018 to May 2019 to assist him save. A total of GHC9,000 was deducted over the period and it was agreed that Defendant uses same to defray in part the vehicle cost in addition to the monthly deductions of GHC1000. He was responsible for maintaining the vehicle although he used it for official work of the Defendants. This GHC9,000 was to have been added to the GHC1000 monthly deduction however Defendant had failed to honour this agreement. Plaintiff tendered in evidence as exhibit A, A1 and A2 his Stanbic Bank statement for the period 1st May 2019 to 30th June 2020 in evidence in proof of the deductions made from his salary in support of his case. this vehicle was however taken from him after termination of his employment by 2nd Defendant and his contributions not refunded. Defendant vehemently disputed these facts of Plaintiff contending that Plaintiff implored him as a Chief Executive Officer of 1st Defendant company to buy a vehicle for him with the understanding that he would pay back the purchase price in installments a request he reluctantly acceded to. The vehicle in question was then purchased at a cost of GHc70,000 and handed over to Plaintiff on the agreement that monthly deductions of GHC1000 would be taken from his salary to defray the purchase price. According to Defendants by implied agreement, Plaintiff was responsible for the maintenance of the vehicle since it was allocated to him for his non-official use and he would have eventually own it. According to Defendants, a total deduction of GHC15,000 had been made from the salary of Plaintiff as at the time of the termination of his employment with the sum of GHC55,000 outstanding. Defendants contended that there were official vehicle as a condition of employment but the purchase of the vehicles for Plaintiff and others were at their express request and subject to installment payment. According to Defendants, that upon the termination of the employment of the employee of Plaintiff, he was required to pay the outstanding purchase price of GHC55,000 for ownership of the vehicle to be transferred to him. In default, any contribution made would be transformed into regular rental fees of GHc300 a day for the time Plaintiff used the vehicle for his private activities and any difference owed to Plaintiff paid back to him. Both parties are giving different accounts of the alleged agreement surrounding the purchase of the vehicle. Plaintiff claims the seizure of the vehicle was unlawful and prays the court to order a return of same or in the alternative refund of all contributions he had made towards its purchase. Though Defendant disputes the claims of Plaintiff and puts up a contrary version, the burden of persuasion as to the existence of Plaintiff’s case is on the plaintiff. It is trite law that it is only after Plaintiff has discharged the burden of proving his case that in the absence of a good defence from the Defendant would entitle judgment in his favour that the defence if any of the defendant would be considered by the court to determine which of the parties’ case is more probable on the preponderance of probabilities. It been held in the case of BARIMA GYAMFI V AMA BADU [1963] 2 GLR 596, SC that the only time the evidence of a defendant becomes important is if it can upset the balance of probabilities which Plaintiff’s evidence may have created or if it tends to corroborate the evidence of Plaintiff. Section 11(4) of the Evidence Act, 1975, NRCD 323 provides that “the burden of producing evidence required 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(1) of NRCD323 also Provides that “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities” and Section 12(2) provides that “Preponderance of 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 the fact was more probable than its non- existence”. It appears the agreement between the parties over the purchase and payment of the vehicle was oral. However, there were other means through which Plaintiff could prove his case. Plaintiff testified that Defendant bought vehicles for him and 3 others on similar terms and they all have been made to take their vehicle away upon termination with only his vehicle taken from him by Defendants. These said other employees of 1st Defendants who also had Defendants buying vehicles for them on same or similar terms could have been called by Plaintiff to testify in support of his disputed terms of the oral agreement. Plaintiff being the one asserting assumes the burden of proving his version of the vehicle agreement. Plaintiff further has to prove that the ceasing of the vehicle by the Defendants was contrary to their agreement. Plaintiff however failed to lead cogent evidence in support of this claim. In the absence of evidence to establish the terms of the purchase of the vehicle, the court is unable to determine whether or not same has been breached by the Defendants. In respect of whether or not Plaintiff is entitled to a refund of all the contributions he has made towards the payment of the vehicle, Plaintiff must first and foremost establish how much contributions he has made towards the payment of the vehicle. Supreme Court speaking through Brobbey JSC at holding 5 in the case of In RE ASHALLEY BOTWE LANDS, ADJETEY ABGBOSU AND OTHERS V KOTEY AND OTHERS (2003-04) SCGLR 420 that the effect of sections 11(I) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: “A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make adetermination of a fact, or of an issue and that determination depends on evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour” . Plaintiff’s evidence on this issue is that a total of GHC9000 was deducted from his salary every month from March 2018 to May 2019 at GHC600 a month as savings and that this said amount was to be used to defray part of the purchase cost of the vehicle and subsequently GHc1000 was deducted from his salary every month towards also the payment of the vehicle. Defendant admits deduction of only GHC15,000 from the salary of Plaintiff as at the time of terminating his employment and denies the deduction of GHC600 to the tune of GHC9,000 and or an agreement for the said monies to be used to defray part of the purchase cost. The total amount of money deducted from Plaintiff’s salary at GHC1000 a month was not made known to the court by Plaintiff. Exhibit A series is supposed to cover the period 1st May 2019 to 30th June 2020. However, Plaintiff tendered just pages 1, 2 and 9 of the 9 pages statement covering only the period May 2019 to August 2019. Within this period Plaintiff was paid GHC2800 by Defendant as his monthly salary. Only four months deduction of GHC1000 is established per exhibit A series. Exhibit A series does not speak to the alleged deductions of GHC600 a month from March 2018 to May 2019. Plaintiff’s evidence on the amount he has contributed towards the purchase of the vehicle is uncertain. He appears not to know how much he has contributed so far towards he purchase of the vehicle Contrary to Plaintiff’s case that the deductions of GHC1000 was started in May 2019, PW1, testimony is to the effect that he as accountant of 1st Defendant started making GHC1000 deduction from the salary of Plaintiff from February 2019. Plaintiff clearly is unable to establish his case on how much he has paid contributed towards the purchasing of the car. The court 19 therefore hold the admitted GHC15,000 as the total amount contributed/deducted from Plaintiff towards the purchase of the vehicle by the 1st Defendant. Per the evidence on record, Plaintiff used the vehicle for non-official use as well as official use. Plaintiff was responsible for the maintenance and fueling of the vehicle save when he used it for official responsibilities. Plaintiff has had a fair use of the vehicle for his personal benefit over the period the vehicle was purchased. According to PW1, whenever Plaintiff used the vehicle for official responsibilities, he was giving fuel by 1st Defendant. From the evidence on record, title in the vehicle was in the name of Defendants and same only to be transferred upon completion of purchase price of same. It is undisputed that Plaintiff is obliged to make full payment of the purchase price of the vehicle for title of same to be transferred into his name. Any other terms of the contract is in dispute and same must be established for the court to make a determination as to same. Plaintiff’s evidence that he was entitled to a refund of the contributions paid so far is solely his oral evidence. In the absence of cogent proof of same, the court is unable to find that such a term existed. It would also be unfair to order refund of all the contributions made so far by Plaintiff when clearly plaintiff has had personal use of the vehicle throughout the period in issue. Plaintiff pray the court for an order directing defendants to pay to him the sum of GHC2,300 being expense he had incurred on transportation since the vehicle was seized from him by defendants and attached exhibits A, A1 and A1 are Goil fuel receipts dated 28/4/2020, 29/4/2020, 13/5/2020, 14/5/2020, 18/5/2020, 21/5/2020, 25/5/2020 and 29/5/2020. The relief claimed by Plaintiff is in the nature of special damages. In every claim of special damages), Plaintiff or the claimant is required to give facts upon which the damages could be assessed by furnishing evidence and facts to warrant the damages and support the basis of the assessment. The law is settled that unlike general damages, which are at large, a claim for special damages should be specifically pleaded, particularized and proved popularly referred to as the “triple Ps”. Special damages are said to be liquidated, verifiable and provable sums. They are neither inferred nor implied. The Supreme Court in the case of CHAHIN & SONS V. EPOPE PRINTING PRESS [1963] 1 GLR 163 held “where special damages are claimed it is not enough for the plaintiffs to write down the particulars, they have to prove them.” All receipt were issued in respect of vehicle number GE 5483-16. Scanty or no detail is given about the vehicle with registration number GE 5483-16 or the receipts of fuel purchased. Plaintiff’s proof of said special damages seems self-serving a weight shall be given to same by the court. Whether or not the Defendants has satisfied their obligations to pay all Plaintiff's SSNIT and provident fund contributions. On this issue, Plaintiff at paragraph 8 of his statement of claim averred that by virtue of his employment with 1st Defendant, he was entitles to a SSNIT and other statutory payments and prays the court as relief e, an order directed at the Defendants to pay all Plaintiff’s SSNIT arrears as well as his provident fund. Defendants admitted in Paragraph 6 of the Statement of Defence and Counterclaim that he was in active engagement with SSNIT to regularize the payment of contributions of all 1st Defendants workers. This is an admission to the Plaintiff’s claim of 1st Defendant being responsible for payment of his SSNIT contribution. Defendants having admitted this claim, there was no obligation on Plaintiff to lead evidence to same as admitted facts need no further proof. (see the case of FORI v. AYIREBI AND OTHER [1966] GLR 627 where it was held that “when a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact”.) whether or not plaintiff owes Defendant a loan amount of GHC14,000.00. Defendants contend that they gave Plaintiff financial assistance of GHC14,000 for payment of Plaintiff’s rent upon his request. Defendants tendered exhibit 4 in evidence of Plaintiff’s request. According to Defendants, it was agreed that Plaintiff would pay GHc600 every month to defray the financial assistance debt however the agreement had to be postponed on humanitarian grounds i.e Plaintiff had had a third child and had leased a new apartment that cost him lot of money. Defendants contended that Plaintiff had paid only GHc1000 as at the time of termination of his employment and contended that the balance of GHC13,000 had become due and owing since Plaintiff’s employment that served as security for the repayment of the money had been terminated. Plaintiff admitted making a request for financial assistance but contends that same was not granted by Defendants. He challenged receiving the said GHC14,000 and or agreeing to any such deductions. Exhibit 4 is a letter for financial assistance not dated but same bearing the name of Plaintiff and signed. Counsel for Plaintiff contends that the signature is not that of Plaintiff. The court though not a handwriting forensic expert upon perusal of the signature on exhibit 4 and that of Plaintiff on his witness statement filed on 22nd June 2021 appears to be the same. Nevertheless, a letter seeking financial assistance in itself is not proof that the said amount was advanced to Plaintiff although same is proof of the request having been made. As held in the Supreme Court in the case of DON ACKAH V PERGAH TRANSPORT LTD [2010] SCGLR 728 at 736, held as follows “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 it 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.”. PW1, has testified to the effect that the only deductions he was aware Plaintiff was making was in respect of the vehicle deductions of GHC1000 a month. Defendants have led no evidence as to the mode or when the said financial assistance was paid to Plaintiff. Defendants merely repeats this claim in oath. Considering that Defendants claim the said amount was to be paid for by deduction of GHC6000 monthly from the salary of Plaintiff, the court fails to appreciate how or when GHc1000 was paid out of the GHC14,000 in the absence of explanation from Defendants. Defendant failed to lead enough evidence in support of their claim of making of granting Plaintiff financial assistance of GHC14,000. Defendants further claim that Plaintiff has failed to return the company badge and car keys to them and counterclaimed for a refund of same. Plaintiff has denied being in possession of the said items and claim that on the day of his termination, he returned to his office where he had kept the car keys but could not find same. He therefore left the vehicle at the parking lot of the 1st Defendant. Days later whilst passing by the office, the vehicle had been moved. Boakye v Asamoah & Anor. [1974] 1 GLR 38, Osei-Hwere J (as he then was) held that "if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative is to prove it, and not he who avers the negative”. There is no evidence on record that Plaintiff has the keys to the vehicle with him as claimed by Defendants. Defendant had to prove that the badge and the car keys were with Plaintiff and not plaintiff to prove that he did not have same with him. The court therefore is unable to grant Defendants prayer for return of the company badge and car keys from Plaintiff. CONCLUSION From the analysis supra, Plaintiff has successfully established part of his case whilst Defendants failed to establish their case/claim against Plaintiff herein. Accordingly Plaintiffs case succeeds in part and the judgment is entered in favour of plaintiff against Defendants as follows; i. It is hereby declared that the termination of Plaintiff’s contract of employment by Defendants on 7th April, 2020 was unlawful. ii. Defendant is hereby ordered to pay to Plaintiff forthwith one (1) month’s basic salary in the sum of Two Thousand Eight Hundred Ghana Cedis (GH¢2,800.00) in lieu of notice for termination of employment; iii. Interest to be calculated on order ii from April 2020 to date of final payment. iv. Defendant is further ordered to pay as compensation to Plaintiff 6 months Salary at GHc2,800.00 per month. v. Interest to be calculated on order iv supra from date of judgment to date of final payment vi. Defendants are ordered to pay the SSNIT contribution of Plaintiff forthwith. vii. Cost assessed at GHC2000. PARTIES ABSENT MR. PEPRAH BERKO AGYEMANG FOR PLAINTIFF ABSENT. BAFFOUR GYAU BONSU ASHIA HOLDING THE BRIEF OF THADDEUS SORY FOR DEFENDANTS PRESENT H/H AFIA OWUSUAA APPIAH (MRS) (CIRCUIT COURT JUDGE) 25