BERNARD KOJO MENSAH & ANOR vs. BILTON BOGOSO GOLD LIMITED [2002]DLCA6662

Date	2002-05-30
Suit No.	CA/NO.193/2000
Citation No.	[2002]DLCA6662

WOOD (MRS.) JA (PRESIDING)

OMARI-SASU JA

ROSE OWUSU JA

[2002]DLCA6662
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													<main id="main" class="content" style="min-height: 60rem" >BERNARD KOJO MENSAH
&amp; ANOR<o:p></o:p>vs.<o:p></o:p>BILTON BOGOSO GOLD
LIMITED<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CA/NO.193/2000&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 30TH MAY 2002<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>WOOD
(MRS.) JA (PRESIDING), OMARI-SASU JA, ROSE OWUSU JA.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>WOOD, JA <o:p></o:p>The
plaintiff/Respondents were working as night duty watchmen at Chujah&nbsp; crossing on the defendant/appellant company’s
gold concession, when one of the company’s&nbsp;
truck and a hired mini bus were involved in a collision.&nbsp; The company alleged the accident was as a
result of their negligence and so declared them off-site.&nbsp; In practical terms, their services were
dispensed with forthwith.&nbsp; Claiming that
they were employees, they sued them for a declaration that their dismissal was
wrongful, prayed the court for the sum of ¢10 million as compensation for the
said act and for any other appropriate orders. Clearly dissatisfied with the
decision of the trial court, which gave to each respondent ¢4,470,00 as damages
for wrongful dismissal, the appellants have appealed to us in this court on the
following grounds: <o:p></o:p>a)&nbsp;
“That the judgment is against the weight of evidence adduced at the
trial. <o:p></o:p>b)&nbsp;
That the High Court against the weight of evidence adduced at the trial
erred in holding that the Plaintiffs were employees of the Defendant company. <o:p></o:p>c)&nbsp;
That the High Court in the absence of a contract of employment or any
other relevant evidence erred in holding that the defendant had wrongfully
dismissed the Plaintiffs.<o:p></o:p>d)&nbsp;
That the High Court erred in awarding damages for wrongful dismissal on
the basis of the evidence before it.” <o:p></o:p>At
the hearing, Appellants stoutly denied the respondents contention that they
were at all material times in their employment.&nbsp;
They denied the existence of any legal bond between the two of them and
described them as employees of Emanet Services (Emanet), independent
contractors, engaged by them (appellants) to provide security services.&nbsp; The distinction between the two different
relationships is of basic legal importance. The relationship asserted by the
respondent is a contract of service.&nbsp; As
a result, a fundamental and thorny issue which arose for determination in the
court below, and which indeed also arises for our consideration in this appeal,
is whether or not the appellant company&nbsp;
employed the respondents under a contract of service.&nbsp; The learned trial judge found they were,
basing his decision on the following: Exhibit G, a testimonial given them by
the appellant company, the fact that following a letter written by the
appellants headed Bilton Bogoso Gold Ltd., they handed over company kit, which
was in their custody, Exhibit E, an investigative report prepared by the
company following the accident that led to their dismissal. <o:p></o:p>It
is this finding which has come under attack as being against the weight of
evidence. It was submitted that at common law, the test for determining whether
a person is an employee is dependent on whether there exists a contract of
service or one of services. The test laid down in Ready Mixed Concrete v.
Minister of Pensions and National Insurance&nbsp;
(1968) 2 Q.B. 515 and in which Mac Kenna J, analysed a contract of
service in some detail and concluded that to qualify as one, three necessary
conditions must be met. <o:p></o:p>Counsel
argued that since the 1st respondent corroborated the appellants’ assertion
that Emanet was contracted to provide security services, and they were unable
to produce their appointment letters at the trial, nor clearly state the terms
and conditions of their employment, the finding was clearly erroneous. <o:p></o:p>The
undisputed facts are that at all material times; the respondents worked on the
appellants company’s premises as security watchmen.&nbsp; The question of whether an employment
relationship is a contract of service or of services is a question of mixed fact
and law and is dealt with on a case by case basis.&nbsp; No one single test is decisive, as was
emphasised in Argent v. Minister of Social Security (1968) 3 ALL E.R. 208.&nbsp; Halsburys Laws of England, Third Edition,
Volume 25, defines contract of service as “one in which a person undertakes to
service another and to obey his reasonable orders within the scope of the duty
undertaken.” Many factors are therefore taken into account in determining the
question, the acid test being that which was advocated in the Ready Mixed
Contract case.&nbsp; His Lordship’s most
instructive speech at page 513 is as follows: <o:p></o:p>“
A contract of service exists if these three conditions are fulfilled. <o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The servant agrees that in consideration of
a wage or other remuneration, he will provide his own work and skill the
performance of some service for his master. <o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
He agrees, expressly or impliedly that in
the performance of that service subject to the other’s control in a sufficient
degree to make that other master. <o:p></o:p></main>