CC798/2004   2004    W.       18

IN THE HIGH COURT OF SIERRA LEONE

BENJAMIN WROBEH                                               -PLAINTIFF

AND

YATA INVESTMENT COMPANY                     DEFENDANTS

Mr, David Thompson               for the Plaintiff

Mr. TV. C. Browne-Marke      for the Defendants

JUDGMENT DELIVERED THE 16th DAY OF FEBRUARY, 2007

KAMANDA - J. A.

The plaintiff was employed by the Defendant Company as an assistant accountant on 4th March 1985. After service of 18 years and 7 months, the plaintiff was retired as an accountant on 31st October, 2003. The plaintiff claims that his retirement benefits were wrongly computed, and in consequence received far less than he would have received if the computation were correct. The plaintiff has brought this action to recover from the Defendant the sum of Le116,417,928.00 which he claims, on a proper calculation, represents the balance of his retirement benefit, plus interest at 35% per annum. There were three witnesses in the entire action: Mr. Benjamin Wrobeh and Muctarr Babertunde Williams for the plaintiff and Junia De-Winton Cummings for the Defendant. In his testimony the plaintiff repeated the pith of his claim as has been outlined at the start of this judgment. He then went on to tender various documents in proof of his claim. Exhibit "A" was his letter of appointment as an assistant accountant. He said that though the letter termed the appointment as temporary he was later confirmed as a permanent staff member. He said he retired by the Board of Company in 2001. He also tendered as Exhibit "B" a copy of the Sierra Leone Gazette.(Extraordinary) Volume CXXII No 5 of Friday 19th January 2001 which contained the terms of the collective Agreement by which his employment was governed. The full name of the agreement is the Collective Agreement Between Employers in the Air Transport Trade Operating in Sierra Leone, and the Clerical, Insurance, Banking, Accounting, Petroleum, Industrial and Commercial Employees Union (C I B A P I C E Union) operating in Sierra Leone. The provision relating the retirement is to be found on Page 34 of the Gazette. The plaintiff said that when he was retired he was paid Le6, 293,182.00 but received no terminal benefit from the company. On enquiry from the company he was told that this amount constituted his retirement benefit. When the plaintiff contested this amount, Mrs. Valerie Nicol who was Chairman and Solicitor of the company wrote a letter on the subject to the Managing Director of the Company. That letter was tendered by the plaintiff as Exhibit "C" 1-2. The plaintiff read this letter to the court, and I think it is expedient to reproduce it here in full.

Mr. Walid A. Yazbeck, Managing Director,

Yata Investment Company (SL) Limited, 3.0D, Wilkinson Road, Freetown.

Dear Mr. Yazbeck,

RE RETIREMENT BENEFITS- MR. BENJAMIN WROBEH

With regard to the retirement benefits of Mr. Benjamin Wrobeh, it appears that the computations used to determine his benefits were based on the old Collective Agreement between Employers and Employees in the Air Transport Trade Operating in Sierra Leone.

Since his retirement was to have taken effect on the 31st day of October, 2003 the proper computations ought to be based on that published in the Sierra Leone Gazette(Extraordinary) Volume CXXXII dated Friday 19th January 2001 No.5 a copy of which is attached hereto.

Therefore:-

1. In accordance with Article 32(b) Mr. Wrobeh having served in excess of 10 years is to receive 90 days pay for each year of service. This however does not include other allowances such as leave/leave allowance, and contributions to any fund being operated by the Employer.

2. I have been informed by Mr. Wrobeh that he has no claim for leave allowance as this was paid on an annual basis to him.

3. Mr. Wrobeh was to have retired on the 31st day of December 2001-and in effect was given no notice - he is therefore entitled to six months pay in lieu of notice.

4. Monies paid to Mr. Wrobeh and accepted by him in retirement benefits under the old computations are as follows:-

14.12.01              Le 2, 000. 000 00

01.04.02                       1,767,000.00 28.05.02.                    1,500,000.00

16.10.03                       1,026,182.00

Le 6, 293. 182. 00

5. By the New Computation Mr. Wrobeh's Entitlements should be:

(i) 90 days for each year of service

(ii) Six months pay in lieu of notice,

(iii) 4½ months pay for each year of service. 6. The total sum of Le6, 293,182.00 shall be deductible from total reached using the New Computation. I regret the delay in replying to your letter, this was due to unforeseen circumstances.

Yours faithfully, (Sgd) Valerie Nicol (Mrs). C.C. Mr. Benjamin Wrobeh.

This letter is in agreement with plaintiff's claim that his terminal benefits were wrongly computed, having been done under the old Collective Agreement and not the current version of that agreement as in the Gazette cited above. Next to testify on behalf of plaintiff case was Muctarr Babatunde Williams who described himself as a Trade Unionist attached to CIBAPICE. In his capacity as Secretary. General of CIBAPICE Union and a signatory to the latest Collective Agreement in Volume CXXXII of the Sierra Leone Gazette (Extraordinary) No.5 of Friday 19th January 2001, he was coversant with the calculation of terminal benefits as provided for in the said Gazette. He said that such calculations fell amongst his responsibilities. He said he knew the plaintiff, who

consulted him requesting his services to undertake the calculation on his (the plaintiff's) behalf with respect to his claim in this case. The witness said, he used the calculation provided in the Gazette and made computations which he signed. He tendered that document as Exhibit "D"l-4, By use of the applicable formular, the witness said that the plaintiff's salary at retirement ought to have been Le642, 000/00monthly and not Lel62, 500(monthly) as paid by the company. For reasons which I shall explain later in this judgment. I do find this Exhibit of relevance, the computation therein having been done on the basis of the wrong formula and the wrong application of the relevant provisions in the new gazetted agreement. In part explanation of how he made the calculations, the witness said that he took what was supposed to be plaintiff's monthly salary in 1996, that is Le642, 000/00, then applied the various increases awarded by Trade Group Council, not reflected in his salary at time he(plaintiff) was retired. All these formulas he said were contained in the Gazette, (that is Exhibit "B") and he used these to arrive at what ought to have been his salary at the time of his retirement. His salary at retirement was Lel62, 000 per month; act

Under cross-examination the witness said that provisions of the agreement Exhibit ("B") was applicable to persons under level of supervisor. He agreed that the plaintiff was above the provisions of Exhibit "B" but could not tell whether the plaintiff was part of the Company Management Team. He knew, however, that plaintiff was an accountant. Witness said that plaintiff did not tell him anyone was earning Le642, 000 per month, and that he (witness) came to his conclusion by reference to paper provided by the plaintiff. The witness agreed with Counsel that some employers give increased in salary according to employees' performance, but added that this was discretionary for the employer, whereas, in the case of general increased the employer had no such discretion. General increases, he said, are published in the Gazette. The witness agreed that in Exhibit "D"2, that is the witness, calculating earlier referred to, there is a breakdown of the notional increases between 1996-2003. He said he multiplied the figure under "benefit" (that is Le49,900,900,00 let me say right away even before I come to a general review of the evidence, that this answer is wrong. This is not to say that I even agree with all the figures used in the multiplication. I will address this later. Witness agreed with Counsel that plaintiff's salary had risen over 200 times from 1985 when he earned Le780 per month to 2003 when he earned le162, 500. When witness was re-examined he confirmed that he took part in the negotiation leading to the conditions operating in the Gazette. He said that Exhibit "B" is for workers below supervisory level, but in his experience in the labour industry a subordinate can earn even move than a Manager.

The only defence witness was Miss. Junia De-Wilson who is Secretary at IPC Group of Companies. She said the plaintiff was an employee of Yatta Investment Company a subsidiary of IPC (Investment and Property Company). She knew the plaintiff to be an accountant and "the only functionary of the company" . By this she meant that although there was a Managing Director of the Company, he was almost always out of the Country so" Mr. Wrobeh did all the work for Yatta Investment Company". She said the plaintiff retired from the Company on reaching age 60. She identified Exhibit "C'l-II and summarized it contents. She then went to comment on the shady circumstances under which the plaintiff was dismissed from the Company. She said that the plaintiff had been given the sum of Le3Million to pay out dividends. The plaintiff she continued converted Le2.8 Million to his own use. She tendered the letter of dismissal dated 24th August, 2001 amongst other exhibits. In Exhibit "L" which is a reply to the witness's letter (Exhibit "K") the plaintiff admitted receiving Le3Million from the witness to pay dividends, but had to use Le2, 800 of this amount to settle certain personal legal problems. This sum remains unpaid by the plaintiff. The witness concluded her testimony in chief by stating that in 1995 full and final benefits were paid to all employees, of IPC Group of Company. She said the Defendant had made full payment to the plaintiff and nothing remained owing to plaintiff.

Under cross-examination by Mr. Thompson, the witness said she joined IPC as Secretary but was not privy to all files of Yatta Company, or Bata as it was previously called. She was referred to Exhibits "A", "B","C" and "G" and made to read parts of them. She elaborated on Exhibit "G" which was, according to plaintiff, revised calculations of his benefits and other omissions which he said the Defendant had made in calculating his final benefits. The plaintiff was in this letter making a claim for Le27, 980,480.68 which he said was the under payment of his retirement benefit etc.,"having consulted the Industrial Union and Authorities concerned.

In Exhibit "H" however, the plaintiff withdrew his claim in Exhibit "G" when he wrote in a letter to the Defendants. "Further to my letter dated 27th March, 2003 (that is Exhibit "G") on the subject of retirement benefit, I wish to withdraw the letter out-rightly and consider it void----I give below the amended figures......." His claim in this regard was for Le6, 293,182.00 made up as follows:-

Notice pay of six months salary          = Le 975,000.00

Entitlement benefit, 1985-2001            = Le5, 318,182.00.

From this total of Le6, 293,182.00 the sum of Le3, 767,000.00 was deducted, being amount owed to the Defendant by the plaintiff. Mr. Browne-Marke closed the case for the Defendants at the end of Miss. Cummings testimony

What is the central issue in dispute in this action. Mr. Thompson in his address to the court has proffered an answer I agree with: it is this:

"Whether the plaintiff's employment with the Defendant Company is governed by the Collective Agreement between employer in the Air-Transport Trade Operating in Sierra Leone and in the Clerical, Insurance, Banking, Accounting, Petroleum Industrial and Commercial Employers Union (C.I.B.A.P.I.C.E) published in Vol. CXXXII No.5 of Friday 19th January, 2001"                                     

To answer this question, I turn to Exhibit C, which is a letter dated 30th March 2004 and written by the Defendants Solicitor to the Managing Director of the Defendant Company, Mr. Walid A. Yazbeck. The relevant portion states that

"since his retirement was to have taken effect on the 31st day of October 2003, the proper computations ought to be based on that Published in the Sierra Leone Gazette (Extraordinary) Vol.XXXII Dated Friday 19th January 2001, No5 ......"

The reference in the above quotation is to Exhibit. I agree with Defendant's Solicitors views and hold that the plaintiff is an employee to whom the Gazette agreement applies.

I am buttressed in this conclusion by Article 9 "of the said agreement which states that "the provisions of this Agreement shall take effect from 1st July 2000..." On this date the plaintiff was still in the active service of the Defendant, and performing duties of the level of employment covered by the agreement -----that is Unionised Members, of which the plaintiff was one.

I come now to the various computations which have been made in the assessment of the plaintiff's claim. One vital factor by which the accuracy of these computations are to be assessed is the period (of plaintiff's employment) which they take into consideration. The computations in both the plaintiff's claim (See the pleadings) and that of P.W.2 (that is Exhibit "D") in assessment of plaintiffs' benefits commence with the year 1985. No evidence is led why that year was considered. I can only assume that it was because the plaintiffs' employment with the Defendants commenced in that year. As I see it, is relevant principally in calculating the duration of the plaintiff's in this action. This figure assumes importance when Articles 32(b) and 32 (c) (vii) are considered in assessment of plaintiff's retirement benefits Article 32(b) states:-

"Employees whose services are terminated or resigns or died during the period of employment shall be entitled to an End of Service Benefit as follows:-

1 - 5 years - 45 days pay for each year of service Over 5 - 10 years - 65 days pay for each year of service Over 10 years - 90 days pay for each year of service. The plaintiff falls in the third category having served for over 10 years. Article 32 © (VII) provides:-

"Employees retired from the service of the Employer who does not operate a Provident Fund shall be entitled to retirement benefits in addition to Article 32(b) as follows:-10-15 years: 3½ month's pay for each year of service Over 15 years: 414 month's pay for each year of service.

The plaintiff falls into the second category having served the Defendants for more than 15 years.

In other words since the plaintiff retired in 2003 calculation from the year 1985 when he got qualifies they employed him, under Article 32(b), to have End of Service Benefit computed at the rate of 90 days pay for each year of service. The current computation in that case would be 90(days pay) multiplied by 19(years of service). In the same manner, under Article 32(c)(vii) the plaintiff's retirement benefits would be computed at the rate of 4¼ (months pay) multiplied by 19(years of service).

I am supported in this conclusion by Exhibit"C, the Defendant's Solicitor letter of 30th March 2004 to the Managing Director of Defendant Company. It state at Paragraph 5:

"By the new computation, Mr. Wrobeh's Entitlement should be: (i) 90 days for each year of service

(ii) --------------

(iii) 4½ months pay for each year of service

The same Paragraph 5, at (ii) gives the plaintiff six months pay in lieu of notice. Paragraph 6 gives the total amount due the plaintiff under the old computation Le6, 293,182.00.I agree with this figure. The correct amount due the plaintiff would be calculations under the new Agreement, less 1e6, 293,182.00.

The period 1985 to 2003, that is 19 years has nothing, in my Judgment, to do with the calculation of the plaintiff's salary or leave benefit,. Assessment of those categories of the plaintiff's claim should take effect from 1st July 2000 that is from the effective date of the new Agreement Gazetted on 19th January, 2001. The correct computation therefore of the new salary and leave provisions would be 28 months that is the effective date of the new agreement to the retirement date (31st October, 2003) of the plaintiff. My conclusion in this respect is supported by Article 41(i) (b) which provide that "all existing salaries shall be increased by 20 per cent effective 1st July 2000.

In Paragraph 10 of the Statement of Claim, reference has been made to "The Commercial employee agreement on salary in 1996" This agreement has not been tendered or its provisions adduced in evidence. The period 1996 to 2003 has nonetheless been used to compute certain benefits in favour of the plaintiff. For the same reasons I have given above relating to 1st July 2000 being the effective date of New Agreement. I will disallow the results of these calculations.

It is important to dwell awhile on Exhibit "C" This document was tendered by the plaintiff. He has nonetheless elected to rely on large portions and reject other portions of the same document. For example the document has provided in Paragraph 4 that plaintiff's benefit be computed on the new higher scale than the old scale which gave him less money. The new scale is outlined in Paragraph 5 of the document. Paragraph 3 is also in plaintiff's favour. In Paragraph 2 however, where it is stated "I have been informed by Mr. Wrobeh that he has no claim for leave allowance as this was paid to on an annual basis to him."The plaintiff nonetheless has made claims for leave allowance in both the pleadings and various calculations tendered to the Court. This is in a way rejecting the provisions of document which he has himself tendered. This in my opinion is wrong I am .tempted in this respect to barrow the Land Law Concept: if you take the benefit, you should also take the burden. After the above review and analysis of the evidence before me let me now give a summary of my findings:

1. That the last monthly salary rate of Le162, 500.00, (and not Le64, 200.00) is the

correct amount on which percentage increases due to the plaintiff should be

calculated.

2. That Mr. Wrobeh's retirement benefits based on the calculations of the new

Gazatted agreement of 19th January, 2001, should be:

3. Six months pay in lieu of notice, translates to 6 x 162,500 = Le 975,000

4. Four and half months pay each year of service that is 4. 5 x 162. 500 x 19= Le 13,893,750. 00.

5. Mr. Wrobeh having already received Le6, 293,182 should receive the total Amounts stated in Paragraphs 2, 3, 4 above, it works out as Le24, 131,250 less

Less 6,293,183 =Le 17,838, 068.

6. That there is uncontroverted evidence that the plaintiff converted to his own use L2, 800,000 out of Le3, 000,000 given to plaintiff by Defendant for the payment of dividends. 7. That this amount (Le2, 800,000) should be deducted from L17, 383,068, that

is Le14, 583,068.00. Having made the above findings, I order as follows:

1. That the Defendant pay to the plaintiff the sum of Lel4, 583,068.00 being balance retirement benefit calculated in accordance with collective agreement (C.I.B.A.P.I.C.E) published in the Sierra Leone Gazette (Extraordinary) Vol. CXXX111 No.5 of Friday 19th January2001. 2. That the said be paid at 35% per annum covering the period 1st July

2000 (the coming into effect of the said agreement) to 31st October 2003 (the retirement date of plaintiff). 3 Cost to be the plaintiff, such cost to be taxed. Ordered accordingly.

HON.MR.JUSTICE JON. KAMANDA-LA

16th Feb '07