ARYEE vs. STATE CONSTRUCTION CORPORATION [1985]DLCA840

Date	1985-10-29
Suit No.
Citation No.	[1985]DLCA840

ADADE JSC

EDUSEI JA

OSEI-HWERE JA

OPANIN BUABENG FOR THE DEFENDANT-APPELLANT.

KUDJOE FOR THE PLAINTIFF-RESPONDENTS.

[1985]DLCA840
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ARYEE <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 424<o:p></o:p>

DATE:
29 OCTOBER 1985<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

OPANIN BUABENG FOR THE DEFENDANT-APPELLANT. <o:p></o:p>

KUDJOE FOR THE PLAINTIFF-RESPONDENTS.<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;
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ADADE JSC, EDUSEI AND OSEI-HWERE JJA<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADADE JSC<o:p></o:p>Adede
J.S.C. delivered the judgment of the court. The defendant-appellant
(hereinafter referred to simply as the defendant) was an employee of the State
Construction Corporation, the plaintiffs (referred to hereafter as the corporation).
He was engaged by the said corporation in June 1974 as a senior technical
officer and by the date of his purported dismissal in August 1980, had risen to
the post of principal training officer within the corporation. The position is
inferior to that of a general manager or manager, but is nonetheless a senior
post.<o:p></o:p><o:p>&nbsp;</o:p>By a
letter dated 4 August 1980 (exhibit A) written over the signature of the
managing director, the board terminated the defendant’s appointment with effect
from 11 August 1980. Paragraphs 4, 5 and 6 of the said letter read:<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">&nbsp;“4. You are to give the corporation, within
three months, vacant possession of the bungalow allocated to you by reason of
your employment. 5. By a copy of this letter the financial controller is
requested to arrange for the payment to you of all your entitlements under
article 56 (c) and (d) (i) of the said conditions of service, ie ... three
months’ pay in lieu of notice in addition to service award of two weeks’ pay
for each year of service for officers who have served the Corporation for
between eight and ten years. 6. The financial controller is further requested
to ensure that deductions are made against rent for the three months you are
allowed to live in the SCC bungalow and to recover any debt you owe the
corporation. If you vacate the bungalow before the period of three months
expires, a refund of the unexpended part of the rent shall be made to you.”<o:p></o:p>The
evidence shows that the said three months’ pay in lieu of notice, and other
entitlements were worked out and a cheque, exhibit D, dated 14 August 1980 to
the value of ¢1,370 issued to the defendant. The defendant refused to accept
the money. He returned the cheque to the corporation. The defendant however
kept possession of the bungalow beyond the three months’ deadline given in
paragraph 4 of exhibit A. He refused to quit even though he paid no rent.
Accordingly on 21 September 1981 the corporation instituted the present action
for: “(a) Recovery of possession [of the house occupied by the defendant]; and
(b) Mesne profits from 12 November 1980 to the time of judgment.”<o:p></o:p><o:p>&nbsp;</o:p>The
defendant countered that his purported dismissal was null and void and of no
effect and that he was still an employee of the corporation. As for the mesne
profits, “the accounts will be adjusted” when he is permitted to resume duty
since rents were deductible at source from his salary. To press home his point
the defendant counter-claimed for a declaration that the purported termination
of his contract of employment is void ab initio, and for an order that he be
reinstated “with full benefits.”<o:p></o:p><o:p>&nbsp;</o:p>The
learned judge found for the plaintiffs on both claims, ie recovery of
possession and mesne profits. She dismissed the defendant’s claim for
reinstatement, but made an ambiguous finding on the dismissal. In the body of
the judgment she pronounced herself clearly as follows: “I would thus say
[that] the purported dismissal of the defendant was void and wrongful.” (The
emphasis is mine). At the conclusion, however, she gave judgment for the defendant
“for relief<o:p></o:p>(a), ie
the dismissal was wrongful.” She did not then pronounce the dismissal as void.
It is this ambivalence which has given rise to the present appeal by the
defendant. The defendant says that as the judge had earlier found that the dismissal
was void</main>