HAGE vs. TALEH [1967]DLHC1502

Date	1967-05-26
Suit No.
Citation No.	[1967]DLHC1502

AMISSAH J.A.

B. A.YANKSON FOR THE APPLICANT.

W. E. OFFEI FOR THE RESPONDENT.

[1967]DLHC1502
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													<main id="main" class="content" style="min-height: 60rem" >HAGE <o:p></o:p>vs. <o:p></o:p>TALEH <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1967] GLR 372<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
26 MAY 1967.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

B. A.YANKSON FOR THE APPLICANT.<o:p></o:p>

W. E. OFFEI FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMISSAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>The
defendant has asked this court to set aside an award made by the arbitrator,
Mr. Jonathan Arthur, in this dispute which was referred to him. Counsel has
argued on the defendant’s behalf that the arbitrator misconducted himself to
his client’s prejudice in that the arbitrator wrongly construed what was in
fact a tenancy agreement between the plaintiff and the defendant as a contract
of employment. Thus consequences which flow from the one type of agreement but
not from the other have been wrongly attributed to that other to the
defendant’s detriment.<o:p></o:p><o:p>&nbsp;</o:p>The
arbitration arose out of an agreement whereby the defendant undertook to manage
the plaintiff’s bakery. The plaintiff was described in the agreement as the
employer and the defendant as the employee. There was the clause usual in
service agreements that the employee shall devote his services exclusively to
the management of the employer’s business. But there was another clause
somewhat unusual in agreements of this kind that the employee was to receive by
way of remuneration after all expenses of the business have been paid the first
£G100 per month of the net profit and all net profits over £G350 per month. In
effect the employee was entitled to keep all net profit above £G250 made by the
bakery in a month, the employer getting a fixed £G250.<o:p></o:p><o:p>&nbsp;</o:p>For two
months in 1963, the defendant failed to pay the plaintiff the stipulated £G250.
The plaintiff therefore put an end to the agreement and sued the defendant for
damages, both general and special, for the breach of the agreement. The special
damage was founded on damage and loss to the bakery premises and equipment.
Except for a very minor item, the plaintiff was unable to prove this, and his
claim for damages on this score therefore failed. But in the course of the
arbitration the defendant volunteered information to the effect that he had
while managing the plaintiff’s bakery been managing another and even more
profitable bakery. The plaintiff therefore amended his claim to include this
breach. Damages for this and for the breach occasioned by his failure to pay
the agreed monthly sum were assessed at £G4,000.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant has once before requested this court to set aside the original award
of the arbitrator. Archer J. who dealt with the application then thought it
unjust to set aside the award either in whole or in part. But he decided to
remit the award of £G4,000 damages to the arbitrator for reconsideration with a
direction that he should allow the defendant’s counsel to adduce further
evidence with regard to the defendant’s management of the other bakery in
answer to the amendment of the statement of claim which referred to this
management as a breach. The arbitrator did take further evidence. I think the
crux of his decision after the specific part of the award had been remitted to
him lies in the following pronouncement which the arbitrator made after
reviewing the fresh evidence he had taken:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
further evidence has not shaken any earlier view that the defendant committed a
breach of exhibits A and B (namely the documents embodying the agreement
between the parties) when during their subsistence he took over the management
of the French Electric Bakery. Indeed my understanding of the defendant’s
latter evidence is that even though he admits managing the French Electric
Bakery at the same time as he managed the International or Ideal Bakery he is
saying that he did so for some reasons which he considered good, i.e. (a) that
the plaintiff knew of this and did not complain and (b) that if he had not
managed the French Electric Bakery he could not have found money to pay his
rent to the plaintiff. In other words the defendant is in effect saying that
‘even though I have committed a breach of exhibits A and B there are good
reasons for the said breach.’ The reasons given for the breach have already
been rejected by me. As I have rejected the reasons it means that my first award
should stand and it so stands...<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">In the
result I still hold that the defendant has committed a breach of exhibits A and
B and that my earlier award of £G4,000 damages in favour of the plaintiff stands.”<o:p></o:p><o:p>&nbsp;</o:p>