CC2/07    2007 N    NO. 1

IN THE HIGH COURT OF SIERRA LEONE

COMMERCIAL & ADMIRALTY DIVISION

CHARLES DOURISIMI KENNETH NICOL                                    - PLAINTIFF

26 BENJAMIN LANE,

OFF CAMPBELL STREET FREETOWN

VS.

1. COUNTRY DIRECTOR

CARE INTERNATIONAL IN SIERRA LEONE                                - 1sr DEFENDANT

2. CARE INTERNATIONAL IN SIERRA LEONE                            - 2nd DEFENDANT

MUSTAPHA S. TURAY ESQ                                                            for the Plaintiff

VALESIUS V. THOMAS ESQ                                                           for the Defendant

RULING DELIVERED THIS 14th DAY OF NOVEMBER 2007.

D. B. EDWARDS J .This is an application by Judges summons dated 5th October 2007 for the plaintiff to be at liberty to sign final Judgment in this action against the defendant/ respondent for the sum of a) Le 25,739,799.70 b) Le 3,607,500.00 and interest as claimed in the statement of claim indorsed on writ of summons intituled CC2/008 N No 1 on the ground that the defendants/respondents had no defence to this part of the claim and the costs of this application.

The plaintiff applicant had issued a writ of summons intituled CC2/008 N No 1 dated 21s1 September 2007 claiming the sum a) Le 25,739,799.70 b) Le 3,607,500.00, interest and cost. An appearance was entered on the 28th of September 2007. The plaintiff on the 5th of October 2007 then applied for leave to enter Summary Judgment through the aforesaid Judges summons pursuant to Order 16 rules 1&2 of the High Court Rules, Constitutional Instrument No 8 of 2007. Meanwhile, later on that same day, the Defendants filed their defence to the action. The application by Judges summons was supported by the Affidavit of Charles Dourisimi Kenneth Nicol sworn to on the 5th of October 2007 together with the several exhibits referred thereto to wit exhibits CDKN1 -CDKN8.

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The defendant's Solicitor opposed the application and filed an affidavit in opposition sworn to on the 17th of October 2007 to which he exhibited their defence filed on the 5th day of October 2007.

The contentions of the plaintiff's Solicitor and counsel as gleaned from the Application through judges summons, affidavit in support and arguments were that firstly, that the contract of employment was for a fixed/ specific period i.e. 2nd July 2007 to 30th June 2008 as evinced form exhibit CDKN3 and that in such circumstances you could not expressly or otherwise impose a period of probation. He submitted that the inclusion of a clause for the employee to serve a probationary period of six months was in itself contradictory and defeats the purpose of the fixed contract. He submitted further that as a result of this contradiction this Honourable court was expected to construe what where the obligations of the parties under the contract of employment dated 14th June 2007, Exhibit CDKN 3.

Secondly, the plaintiff's Solicitor referred this court to exhibit CDKN 6 which is the Human Resource Manual which was part of the contract of employment, clause 3.3 thereof, under the rubric "Termination while on Probation" at page 29 which provided that in cases of termination while an employee was on probation a minimum two weeks notice must be given to the employee. He submitted that by the aforesaid provision a minimum of two weeks notice of termination ought to have been given to the employee, the plaintiff, before his termination and that there was no mention of the employee receiving salary in lieu of notice, just a minimum 2 weeks notice, prior to termination. However by the termination letter dated 21st August 2007, exhibit CDKN 7, the termination was to take effect on the 24th of August 2007 which was far less than the two weeks notice required as by the provisions under the Human Resource Manual exhibit CDKN6. As a result of this, he submitted the termination was unlawful leading the plaintiff to claim for the reliefs to which he believes that there could be no defence. He went on to state that there was no reason given for the plaintiff's termination and that there was no reason stated in exhibit CDKN7 why he was so terminated. The plaintiff's

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solicitor went on to submit that assuming that the plaintiff was right in paying two weeks salary in lieu of Notice which was not admitted the defendants were noted to have paid this amount only 3 weeks after the termination as evinced by exhibit CDKN 8 on the 14th of September 2007 which was not contemporaneous with his termination.

In reply the defendants' solicitor opposed the application. Having filed an affidavit in opposition sworn to on the 17th of October 2007 to which he exhibited their defence filed on the 5th day of October 2007, he submitted that the purpose of the present proceedings was to determine whether the defendants had a defence to the claims herein. Referring to Order 16 rule 1 of the High Court Rules 2007 and the notes on the subject in the 1999 Supreme Court's Practice at page 166 under the rubric "Affidavit To Support Application", he submitted that this application could only be used in a proper case and that this was not A PROPER CASE as they had filed a defence so exhibited in their affidavit in opposition and which shows a substantial defence to the plaintiff's claim based upon the contract which he concluded with the defendants. He submitted that the plaintiff could be terminated during probation and that the only triable issue was whether the 2 weeks salary in lieu of notice of termination to which the 2nd defendant referred in exhibit CDKN 7 has sufficiently been complied with. The defendant's solicitor argued that in so far as the 1st defendant was concerned he has a defence as the plaintiff had no contractual relationship with the 1st defendant.

On this last submission the plaintiff's solicitor in his response argued that the reason for suing both 1st and 2nd defendant stemmed from the fact that there was nothing in the contract of employment showing that the 1st defendant was signing on behalf of the 2nd defendant.

I have considered keenly the arguments of both counsels. The plaintiff has stated that the defendant failed to give any reason for the plaintiff's termination and that there was no reason stated in exhibit CDKN7 why he was so terminated. Let me at the outset state that an employer need not state the reason for the termination of the employee. So long as the employer gives notice for the prescribed period under the contract of employment or pays

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the equivalent salary in lieu of notice, the termination is lawful and the employee has no remedy at law. See the case of ADDIS VS GRAMAPHONE COMPANY LIMITED (1909) APPEAL CASES AT PAGE 488-505 H.L and the case of JESSIE ROWLAND GITTENS STRONGE VS SIERRA LEONE BREWERY SC CIV APP 7/79.

On the issue of whether this ease is a proper one for proceeding under Order 16 the defendants have proffered a defence and one which they claim is a substantial defence. I should think that in applications of this sort the primary indicia for consideration are whether the application comes within the terms of Order 16 under which it was made. To come within the terms of Order 16 requires the following to have been done viz. i) that a statement of claim must have been served on the defendant ii) that the indorsements on the writ of summons must not be a claim by the plaintiff in respect of any of the following actions viz libel, slander, malicious damage, false imprisonment or seduction or an admiralty action in rem and iii) that the application was by Judges summons supported by an affidavit which is not defective, as for instance, failing to verify the facts on which the claim is based and failing to state that in the deponent's belief there was no defence to the action or part of the claim. In this matter before me there can be no doubt that these primary requirements were fulfilled as the statement of claim indorsed on writ of summons intituled CC2/008 N No 1 was served on the plaintiff on Thursday the 27th of September 2007 and did not contain any of the actions for which application by judges summons for summary Judgment is prohibited; the defendant entered appearance thereafter on the 28th of September 2007 and the affidavit in support of judges summons too did verify the facts stated in statement of claim embodied in the writ of summons and was to the effect that in the deponents belief there was no defence to the aforesaid claims.

However as stated by the defendant it is not in every case in which the procedure may be appropriate that it might be proper to proceed under Order 16. This means that the only recognized situation in which it might be proper to proceed under Order 16, not withstanding the fulfillment of the primary requirements and /or considerations, is where

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the defendant actually has no defence. The defendant having stated that he has a substantial defence to those parts of the claim for which the plaintiff stated that he had no defence, it behoves this court, to consider whether the defence filed by the defendants and as exhibited in the affidavit in Opposition was a defence within the true meaning of Order 16. The obligation of the defendant under Order 16 is to show cause against the plaintiff's application and this is normally done by a preliminary /technical objection that the claim is not within the terms of the Order or by showing a defence on the merits. A defence on the merits is one which shows a bonafide defence on the merits or raises an issue/dispute which ought to be tried because it has a reasonable prospect of success. Having no defence is a term of art; it carries a technical meaning; It does not mean that the defendant has not filed a defence; it does not mean that the defendant has not stated a defence but that the defence filed must be of a standard of merit failing which it would be considered as no defence. It would seem to me that the Solicitor for the defendants is saying that his having filed a defence to the action should perse entitle him to defend the action. This however cannot be true where the defence filed is a sham defence. The case of MCLARDY VS SLATEUM (1890) 24 QBD 504 illustrates this. In the same vain the defence may not be a sham defence but is one which is not likely to succeed and therefore no defence within the meaning of Order 16 .In the Supreme Court case of AMINATA CONTEH VS APC SC.CIV APP.4/2004 unreported, it was held that the new test with respect to applications of this sort is to examine the issues of law and fact raised and to determine whether the defendant has a good chance of succeeding. It is not sufficient to show that that there are triable issues but there must be a prospect of success. It is for the judge to look at the issues raised and the law on the matter to see if there is any prospect of success. This case which is the most updated law on the subject and by the Supreme Court imposes a test stronger and much higher than the arguable/triable issue test which had hitherto dominated the law on the subject in this country.

Having stated the law on the subject it behoves this court to consider whether the defence raised by the defendants could be treated as "No defence" within the meaning of Order 16 rule 1. In other words was the defence raised by the defendants a defence as to merits. The issue is not whether they have filed a defence or that the defence shows mere triable

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issues but rather whether that defence is substantial enough to qualify as a defence on the merits with a reasonable prospect of success or raises an issue which ought to be tried as showing a very reasonable prospect of success.. The defence raised by the defendants is firstly that in so far as the 1st defendant is concerned there was no contractual relationship between the plaintiff and the 1st defendant. To make short thrift of this, let me say that I cannot agree more with the defendant even though it appears to me that the plaintiff was proceeding ex abundante cautella.

In so far as the 2nd defendant is concerned the defendants' solicitor insists that as part of the contract of employment which the plaintiff concluded he was to serve 6 months probation before being confirmed. He puts it thus in his defence.

"4. In answer to paragraph 7 of the particulars of claim the defendants will say:

a) that the plaintiff's contract of employment, as embodied in the said letter dated 14th June 2007 (i.e exhibit CDKN3 herein) as accepted by the plaintiff and the 2nd defendants' Human Resource Manual (i.e exhibit CDKN6 herein)was subject to the plaintiff serving a probationary period of six months before confirmation in the position as Internal Auditor.

b) that the contractual stipulation found in both the said letter(i.e exhibit CDKN3 herein) and Manual (i.e exhibit CDKN6 herein) that the plaintiff's employment by the 2nd Defendant is subject to the plaintiff serving a probationary period of 6 months before confirmation in the position as Internal Auditor is not contrary to Law.

5. In answer to paragraph 8 of the particulars of claim, the defendants admit the said averment and will say further that clauses 2.15 and 3.3 of the 2nd Defendant's Human Resources Manual expressly provide inter alia that all staff are subject to a probationary period of 6 months and that during such probationary period either party may terminate the services of an employee on two weeks notice.

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6. In answer to paragraph 9 of the particulars of claim the defendants admit the termination of the plaintiff's employment by letter dated 21st April 2007 but deny that such termination was wrongful.

7. The Defendants deny paragraph 10 & 11 of the particulars of claim and will say that at the time of the said termination the plaintiff was offered and did receive two weeks salary in lieu of the two weeks notice of termination."

Two separate and distinct issues were stated by the plaintiff as to why the contract of employment was breached entitling him to the reliefs prayed for except as to damages.

The first was that the contract of employment was for a fixed/ specific period i.e. 2nd July 2007 to 30th June 2008 as evinced form exhibit CDKN3 and that in such circumstances you could not expressly or otherwise impose a period of probation. He submitted that the inclusion of a clause for the employee to serve a probationary period of six months was in itself contradictory and defeats the purpose of the fixed contract. The defendants response is as stated in 4b supra as in their defence dated 5th October 2007 exhibited to their affidavit in opposition. I have spent some time on this and tried to construe the contract documents. I should think that the plaintiff was right in holding that a requirement for an employee to serve probation after he has been given a fixed contract of employment was and is inconsistent with the purpose of the contract. This is borne out of the fact in the case of GLYNN VS MARGETSON & CO (1893) AC 351 at page 357 Lord Halsbury Lord Chancellor at the time said this

"Looking at the whole of the instrument and seeing what one must regard.......as its main purpose , one must reject words , indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract."

From the above it is clear that this court is not always bound by words and provisions in contracts and instruments where the same is in tangent to the main purpose of the

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contract. It was a fundamental term of the contract of employment exhibit CDKN 3 that the plaintiff's appointment was only effective from the 2nd of July 2007 -30th June2008 subject only to conditions precedent viz. the receiving of positive responses from the nominated referees and a satisfactory report from the 2nd Defendant's retainer Doctor certifying the plaintiff's medical fitness. The appointment of the plaintiff was therefore for a fixed or definite term. Even the Human Resources Manual exhibit CDKN 6 recognizes such fixed contracts appointments at page 8 thereof and calls them short term contracts.

The main purpose of this contract of employment was to give appointment to the plaintiff as Internal Auditor on a fixed short term contract. To say that he was to serve a probation of six months before his confirmation serves only to make his contract which was in no uncertain terms specific, unspecific unfixed and indefinite as he could be terminated before the end of the contract term. The words in clause 2 of the contract of employment dated 14th June 2007 are clearly inconsistent with what one supposes to be the main purpose of the contract to appoint the plaintiff as Internal Auditor for the fixed period of 2nd July 2007 to 30th June 2008. In contracts where the appointment into the establishment would be for an indefinite period you are normally required to serve a period of probation but not so for fixed or definite contracts. It is further my view that by requiring the plaintiff to serve probation of 6 months the 2nd defendant is attempting to impose a condition precedent right in the middle of the contract when in fact they should be fulfilling their obligations under the contract, the condition precedent for the effectance of that contract having been fulfilled .

That apart, a provision in exhibit CDKN6 the Human Resource Manual Does Catches one's eye. It is as follows:

"No appointment to a regular position with CARE Sierra Leone is a guarantee of permanence with the organization whether or not care operates in Sierra leone.

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All new employees will undertake their first two years of employment on a fixed 2 year term contract. After completing this fixed two year term , the employees performance will be reviewed and he or she may be offered subsequent employment on regular open ended status at which time a letter indicating change from contract to regular status will be given to the employee . Accrued benefits will be carried forward from contract to regular employment."

Taking the above provision into context of the so called contract off emloyment dated 14th June 2007 exhibit CDKN 3, it would appear to me that the defendant as employer do have a system of conferring a contract of employment as against contract for services. This 1 perceive to be the distinction between the regular appointment and a contract employment. Fixed contracts are contract for specific services. The plaintiff being asked to render professional services as internal Auditor and not as Audit clerk or Audit officer for a specific term under a specific project, it would appear to me, that notwithstanding some appearances that this was a contract of employment, that the letter of appointment dated 14th June 2007 was a contract for services. Need I point out that in such contracts for services the defendant's level of control is limited to just what work is to done by provision of a job description for the employee plaintiff. See the case of COLLINS VS HEREFORESSHIRE COUNTY COUNCIL & ANOTHER 1947 1 ALL ER PAGES 633- 642 The defendant employer could not however determine how the work is to be done. He relies on the professional expertise of the employee who he could only terminate by giving the prescribed notice of termination which could be at any time during the duration of the contract or by effluxion of time, at the expiration of the contract. In such circumstances, the policy of probation which is a means of directing control on how work is to be done in the defendants' establishment would be at cross purpose or an anathema to the main purpose of a fixed contract.

I however do believe that this was not the substantial issue under which determination of whether the defendant has a defence going to the merits with a likelihood of success

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turns. In such circumstances this court would for the moment hold that probation does constitute part of the contract of employment expressly concluded between the plaintiff and the defendant and bring the plaintiff's second contention into play. The plaintiff as his 2nd separate contention has argued that even if the service of a probation was part of his contract of employment clause 3.3 and indeed the Human Resource Manual as a whole forming part of his contract of employment was clearly breached in that a minimum 2 weeks notice ought to have been given before the plaintiff could be terminated while on probation but that exhibit CDKN 7 clearly shows that only 3 days notice was given in view of which he was made to suffer the loss he has claimed. This being the case the relevant portion of the contract which binds both the plaintiff and the defendant is section 2.15 and section 3.3. The defendant in his defence relies on both these sections. For ease of reference and proper interpretation I produce these two short sections in ex tenso  2.15 PROBATION

Once hired, new staff must successfully complete a certain period of employment before they can be confirmed in their employment. All staff are subject to probationary period which is six months. During this period . employees will not be entitled to any accrued severance benefits to minimally include annual leave UPA leave ( which is usually deducted from annual leave) annual bonus , end of year gift. One month prior to the end of the probationary period a performance review should be done. In the event of an employee's performance being less than the expected standards CARE -Sierra Leone may, on the recommendation of the employee's supervisor extend the probation period for a maximum of nine months or terminate the employee's service.

PROCEDURE

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A Minimuin notice of two weeks must be given by either party for staff in grades 6-8 to terminate the contract during the probationary period at which time proper handing over should be done with the immediate supervisor on different procedures.

3.3 TERMINATION WHILE ON PROBATION

"During the initial probationary period, either party may terminate the services of an employee with a minimum of two weeks notice and in such event no benefits are due the employee"

The contract of employment it self provides as follows: 2. "You will serve a probationary period of 6 months from the effective date of your employment, which if successfully completed will result in your being confirmed. If your performance during this period fails to meet expectations, your employment may be terminated or your probationary period extended as decided by the organization."

What am I to conclude from the aforesaid provisions? The opinion which this court is able to form from the aforesaid provisions is that the plaintiff having signed the employments contract embracing these provisions for probation could be taken as bound by them. Thus he was expected to serve probation of six months before confirmation. One month to the end of this six months which should be at the end of the 5th month of probation, his performance was subject to review. It was at that stage, if at all, that he could be terminated, and even so, a minimum two weeks notice ought to have been given; another process was to warn him as to his performance if it was unsatisfactory and rather than terminating him you extend his probation up to even 9 months . I should think

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that the plaintiff was alluding to this when he said in his affidavit in support paragraph 15 &16 thereof when he said

"15. That this purported termination was contrary to the terms of my contract of employment as detailed in the Human resource manual.

16. I am informed by my solicitor and verily believe that this purported termination during probation was wrong in law in that in all situations were termination is done during probationary periods this would require the employer serving a notice to the employee that if his / her work does not improve he / she would be terminated - a notice of which was not in the least given to me as employee of the defendants / respondents in the circumstances"

It is quite clear from the evidence before this court that the plaintiff was on a fixed contract and less than 2 months into the fixed contract terminated while on a probation with less than 2 weeks notice. Clearly in the above circumstances there cannot be a defence for this. What this court is to make of this is that the employer was hell bent on terminating the plaintiff at all cost and was not even patient enough to observe the very procedures they themselves have carefully laid out in the Human Rresource Manual Exhibit CDKN 6 , the result of which is that not only the period of probation is lost but also the whole remaining contract period justifying the plaintiff's to relief prayed for.

In the case of JESSIE ROWLAND GITTENS STRONGE VS SIERRA LEONE

BREWERY CIV APP 7/79 LIVESEY LUKE CJ delivering the judgment of the Supreme Court highlighted certain imperfections in our laws of Sierra Leone relating to wrongful terminations thus:

"It does not matter how unfair or high handed the termination was or for how long the employee had served the employer. If the employer acts in accordance with the terms of the contract of employment he is protected................. The resulting position according to our present law is that the employee is at

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the mercy of his employer . An employee who may have rendered many years , may be ten or twenty years , of loyal faithful and meritorious service could be dismissed for no just cause, without assigning any reason by the employer giving him the prescribed notice or salary in lieu thereof in accordance with the terms of the contract of employment .The employer may have acted out of spite , malice or other unworthy motives . But according to the common law so long as he complies with the contract of employment he is protected and the employee has no remedy in law."

In the present case even if it is true that the plaintiff was required to serve probation the terms and conditions prescribed how this probation was to be served (i.e 5months and thereafter assessment), prescribes when assessment during probation was to take place (one month to the end of the probation) and the period of notice to be given before termination (at least 2weeks it could even be four weeks but not 3 days ). The Defendant clearly breached those provisions. He failed to comply with the contract of employment and so is unprotected . The employee plaintiff has a remedy in law There is nothing to try here as the facts speak for themselves in that there is no likelihood of success meaning that the defendants has no defence to the claims.

I should think that even on both points independently, more so on the this second point alone, the 2nd defendant has no defence to the claim for which the plaintiff has categorically stated that they has no defence . I note that the plaintiff paid 2 weeks salary in lieu of notice when the Human Resource Manual did not so provide and that the same was not paid contemporaneously with the termination as it was paid only on the 14th of September 2007 which is 3 weeks from the termination. This court observes that the plaintiff has already received it 3 weeks after his termination. I should think therefore that the amount should be deducted from the reliefs prayed for. I therefore order as follows:

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1. Plaintiff is hereby granted liberty to sign final Judgment in this action against the defendant/ respondent for the sum of a) Le 25,739,799.70 less Le 414,491.35 and b) Le 3,607,500.00 is herby granted.

2. Interest is awarded on the above sums assessed at the rate of 20% per annum from the 24th of August 2007 until payment.

3. Cost of this application is assessed at Le Hon Desmond Babatunde Edwards J

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