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IN THE SUPREME COURT OF SIERRA LEONE

CORAM:

The Honourable Mr. Justice E. Livesey Luke,C.J.-Presiding

The Honourable Mr. Justice C.A. Harding - J.S.C.

The Honourable Mrs.Justice A.V.A.Awunor-Renner - J.S.C.

The Honourable Mr. Justice S. Beccles Davies - J.S.C.

The. Honourable Mr. Justice S.M.F. Kutubu - J.A. S.C. CIV. APP. NO. 10/81

BETWEEN:

J. S. BANGURA                     - APPELLANT

Vs

S.L. ELECTRICITY CORPORATION - RESPONDENTS M. J. Clinton, Esq., for Appellant Miss P,S. Wellesley-Cole for Respondent JUDGMENT DELIVERED THIS 5th DAY OF MAY. 1983 HARDING. J.S.C.:-

The appellant was employed as a Payments Cashier by the Sierra Leone Electricity Corporation (hereinafter referred to as "the respondents") and was earning a salary of Le1,350,00 per annum when he was summarily dismissed from his employment on 1st October, 1973 by letter dated 28th September, 1973 alleging that the Corporation's Board of Directors had concluded that he was "culpable for serious misconduct in respect of his handling and management of the Corporation's funds". The appellant was aggrieved with his dismissal and so he consulted a solicitor who, after exchange of correspondence with the respondents, instituted proceedings against them on behalf of the appellant for the recovery of arrears of salary and damages for wrongful dismissal by writ of summons dated 8th July, 1976. The respondents after entering appearance to the writ delivered and filed a

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defence and counter—claim to which the appellant delivered and filed a defence and reply. The action went to trial and on 20th October, 1978, Williams, J. dismissed the respondents' counterclaim and gave judgment for the appellant in the sum of Le.2,067.50 which award included an amount of Le.1,365.00 assessed general damages.

The respondents appealed to the Court of Appeal against the judgment of Williams, J. on five grounds of appeal. In their judgment dated 14th July, 1981 the Court of Appeal (Ken E.0. During, Marcus E.A. Cole and M.S. Turay JJ.A.) allowed the appeal on three of the grounds and held that the other two were without merit. The three grounds on which the appeal succeeded were:-

"2. That the learned trial judge misdirected himself on the case for the appellants on the evidence,

4.   That the learned trial judge erred in law in finding that the Plaintiff/Respondent had been wrongfully dismissed and in awarding damages to him.

5.   That the decision is against the weight of evidence." Marcus Cole, J.A. in delivering the unanimous judgment of the Court stated as follows:-

"The issue whether the appellants were justified in the instant case in summarily determining the respondent's services was one of fact. There is no fixed rule of law defining the degree of misconduct which will justify dismissal.

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Each case would depend on its facts and circumstances. The appellants in the instant case have stated in Exhibit "D" letter of dismissal:-

.... the Board of Directors has given careful attention to the facts pertaining to the pay roll frauds in the Western Area and has reviewed the part you played for which you were suspended. The Board has concluded that you are culpable for serious misconduct in respect of your handling and management of the Corporation's funds .....

Cogent and credible evidence- nets been adduced by the appellants to justify that the respondent had been found culpable for serious misconduct in respect of his handling of the appellant's funds. This decision was reached as a. result of careful investigation by the appellants,

A proper evaluation of the evidence and correct inference therefrom indicate irresistibly that the appellants were justified in summarily dismissing the respondent from their employ and I so hold."

The appeal now before this Court is against that judgment. Twelve grounds of appeal were filed but in my View grounds 10, 11 and 12 embodied the main complaint of the appellant, viz,

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"10. The Court of Appeal erred in law in failing to uphold the High Court decision which was based upon the question of truthfulness of the witnesses and not necessarily upon inferences to be drawn.

11.  The Court of Appeal erred in holding that the judge's finding in the present case is baaed on inconsistencies in the evidence of the appellants' witnesses particularly that of D.W.2.

12,  The decision was against the weight of evidence."

Counsel for the appellant conceded the respondents rights both at common law and under the "Rules, Regulations and Conditions of Employment" of the Respondent Corporation to summarily dismiss the appellant, if he was guilty of serious misconduct, but contended that misconduct must be proved on the balance of probabilities and that the burden of proof throughout as to such misconduct was on the respondents; and that it was a question of fact for the Court to decide whether or not there was such a misconduct. He submitted that on the basis of the evidence adduced no such misconduct had been proved and that the learned trial judge was right in finding that the appellant had been wrongfully dismissed from his employment,

Counsel for the respondents on the other handcontended that the learned trial judge misdirected himself on the ease for the respondents on the evidence that he erred in law in finding that the appellant had been wrongfully dismissed and urged that there was abundant evidence to Show that the appellant's conduct in his office disclosed misconduct, disobedience of lawful orders, dishonesty and negligence.

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The respondents case is stated in their Defence and Counterclaim as follows:-

"6. As a direct result of the failure and negligence of the plaintiff to conduct his business strictly in accordance with the directives of the defendant, his employers, the defendant sustained a loss of Le.1,952.60 which the plaintiff has neither accounted for nor paid. In breach of the express terms and conditions of his employment,the plaintiff;-

(a)  Made out payments which were not supported by valid and authorised pay cards.

(b)  Kept cash, from wages, In his custody for more than three days in flagrant violation of the mandatory regulations which required him to rebank such monies within 48 hours after pay day.

(e) On the 2nd January, 1973 repaid to the defendant's banking account Le.1,045.47 from his own monies in part satisfaction of a general total deficit of Le.4,164.31, When queried about this plaintiff described the payment as "excess ©ash" accumulated in his safe from October to December 1972, This payment to the bank was made after

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the defendant had pointed out to him that his reconciliation statements were erroneous, (d) Failed to provide a reconciliation for January 1973."

As stated earlier the trial judge found for the appellant, i.e., held that he was wrongfully dismissed, but this decision was reversed by the Court of Appeal on the ground that "a proper evaluation of the evidence and correct inference therefrom indicate irresistibly that the appellants (the respondents herein) were justified in summarily dismissing the respondent (the appellant herein) from their employ."

Thus the issue before this court is, whether on a review of the evidence as presented in this case, there is any, and if so sufficient material to warrant the Court of Appeal in holding that the appellant had been dismissed justifiably. However, before embarking on a review of the evidence it is necessary to state that whilst it is the duty of an appelate court to form its own opinion upon the evidence adduced a distinction must be drawn between find-ings based on conflicting testimony and deductions to be made from the evidence as a whole. In the former case a finding on a question of fact should not lightly be disturbed, but in the latter an appellate court is in as good a position to evaluate the evidence as the trial judge and should form its own independent opinion giving weight if possible to the opinion of the trial judge. Indeed the Court of Appeal in its judgment referred to various authori-ties on the subject, viz,

(i) DOMINION TRUST CO. vs NEW YORK LIFE INSURANCE COMPANY (1919) A.C. 254, P,C.

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 (ii) MONGOMERIE & CO. LTD. vs JAMES 96 L.T. Rep. (1904) A.C. 73 (±ii) 3ENMAX vs AUSTIN MOTORS & CO. LTD (1955) 1 A.E.R. 326 (iv) TEXACO (S.L.) LTD. vs E.B. SMITH

Civ. App. 15/77 (unreported).

In WATT or THOMAS vs THOMAS (1947) 484, H.L. Lord Thankerton stated (at pp. 487 & 488) the principles enunciated in all the above mentioned cases thus;-"1. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge. an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion.

2.The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

3.The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he

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has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."

See also EL NASR EXPORT & IMPORT CO. LTD vs MOHIE EL DEEN MANSOUR S.C. Civ. App. 3/72 Judgment delivered on 25th April, 1974 and Avo Wilson vs. James Samura & Anor. S.C, Civ. App. 3/74 Judgment delivered on 3rd June, 1973 (both cases as yet unreported).

According to the evidence adduced before the trial judge, the appellant was the payments cashier in the Finance Section of the respondents business and his duties as stated in a memorandum dated 24th September, 1972 -Exhibit E - were:-

"1. Writing of Cheques for all payables. received from stores and finance section respectively.

2. Cashing of cheques for salaries and wages, leave payments petty cash and payments of all staff. 3. Posting of payments and petty cash books.

4. Preparing of payment vouchers."

Other employees in the Finance Section were the Payroll Clerks. Accounts Clerks, Assistant Finance Officer and the Finance Officer, who at the material time was a Mr. P.E. Temple, and who was the first of two witnesses to testify on behalf of the respondents.

According to Exhibit E the duties of the Finance Officer include:-

"1. Supervising the staff in the Finance Section.

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2. Reconciliation with Tab. 32 of

sixteen balance sheets accounts, 3. Reconciliation of Bank of Sierra Leone accounts and National Development Bank accounts. 4. Submitting payment vouchers and Petty Cash Journals with other Journals to Management Accounts Section for processing at Central Statistics Office.

5. Checking the Payment and Petty Cashier at intervals and during re—imbursements.

6. Initialing cheques drawn by the Payments Cashier and forwarding to Chief Accountant.

7. General duties of Office Management." The appellant's main duty was to pay wages monthly based on timed job cards prepared by the Time Keepers of the various sections showing the name of the employee. His designation, rate per day, deductions, etc. The names on the Job Cards are taken from a Register which is kept by the Section Head and it is he who supplies the names to the Time Keeper. After the Time Keeper has prepared the Job Cards they are passed on to the Section Head for signature after which they are journalised to arrive at a total amount required for the payment of wages in respect of all the sections. A cheque for a little over the exact amount -to make up for errors - is then prepared by the appellants the Finance Officer initials the cheque after which it is cashed at the bank by the appellant. On his return he packets the wages of each worker according to the Job Cards

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in the presence of the Finance Officer and on pay day he would go to the various sites and make payment to the workers each of whom would be identified by the Time Keeper and Section Head. After payment of wages it was the appellant's duty to prepare a Reconciliation Statement each month showing the amount received from the bank the amount paid out and the total amount of unclaimed wages. It was also the appellant's duty to re-bank all unclaimed wages within two days after making payment of wages. It was also stated in evidence that it was the duty of the Finance Officer to check the Reconciliation Statements and if found to be correct to sign them. It was whilst the Reconciliation Statements for the year 1972 were being checked that the Finance Officer discovered certain discrepancies, i.e., that there' were differences between what the appellant paid out and what were recorded in the Job Cards and Journal Vouchers; this was on 29th December, 1972. The discrepancies were pointed out to the appellant by the Finance Officer who also instructed him to go with the Payroll Supervisor to the various stations where the differences arose. They left about 3 p.m. for Blackball Road Power Station but returned about an hour later only to report that the Time Keeper could not lay hands on the Register as it was locked up in the Distribution Officer's room. On 2nd January, 1973, the Finance Officer ordered appellant and the Payroll Supervisor to go again to Blackhall Road Power Station but the appellant refused to go with the Supervisor and insisted in going alone. Appellant, according to the Finance Officer, thereupon secured his safe and cashier's cage and went out alone. Later he returned with a Barclays Bank Paying-In-Slip for the sum of Le.1,045.47 and at the same time he informed him that a Mr. Kamara the Time Keeper was unable to pay his own

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portion or the difference and that he (Kamara) would prefer to repay by instalments. The Finance Officer thereupon told appellant that the matter was a serious one which he would have to report. On the next day the matter was reported to the Acting Chief Accountant, Mr. Salaam who subsequently ordered an investigation. The investigation was conducted by one Muektarr Rahman of the Internal Audit Section (D.W.2). In evidence he stated thus:-"I discovered that certain monies allegedly paid out by the Plaintiff were in fact paid out on forged cards and the sum of Le.1,045.47 had not been properly accounted for .................

I made some findings about surplus cash and the plaintiff. Some bank paying-in-slips were showing a rebanking of the Le.1,045.47. I discovered that the rebanking were not done at the correct time as they should have been rebanked within 48 hours. According to my investigation monies which should have been rebanked within 48 hours were not so re-banked for three months. The re-banking took place before my investigations started. I spoke with the plaintiff the question of his records relating to re-banking of unclaimed wages. The Le.1,045.47 I have referred to was described by the Plaintiff as excess cash in his safe. I discovered that there was no reason why he should have had excess cash. I discovered that

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the sum of Le.1,045.47 was made up of three separate sums of money. He said that the first sum was in October, the second in November and the third in December, 1972. I asked him why he had not re-banked them as he discovered them. He replied that he did not know how the excess came about and he had referred the matter to Mr. Temple (D.W.1) and that Mr. Temple had told him to investigate and find out. Mr. Temple denied any knowledge of this."

I should here state that in his evidence before the Court the Finance Officer denied giving the appellant any counter instruction to keep surplus cash.

The witness then went on to state that all his find-ings were embodied in Exhibit M which was a query dated 6th July, 1973 addressed to the appellant by the respondents. He stated further that during his investigation he referred to Job Cards principally and the Journals and the Reconciliation Statements.

The appellant on his' part stated that during the months of October, November and December 1972, he discovered excess cash, that he reported the matter to the Finance Officer who instructed him to keep same until the Journal Vouchers had been checked. In support of this allegation he produced two documents which were admitted in evidence without any objection, by counsel for the respondents and marked Exhibits P and Q respectively.

Exhibit Q dated 30th October 1972 was written by the Finance Officer to the appellant and it reads as follows:-

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"Finance Officer Elec. House 30/10/72." "J.S. Bangura,

Please keep any excess cash you nave discovered after your normal ire-banking. I shall check the job cards and the journals for October 1972, I shall inform you of the date you will rebank it. The payroll clerks are busy on other work,

(Sgd.) ? ? ?

Finance Officer."

Exhibit P was written by the appellant to the Finance Officer and it reads thus:-

"Electricity House

30th November, 1972.' "P.E. Temple Finance Officer S.L. Elec. Corporation.

I am reminding you that I have experienced another excess cash of Le.646.19 in November,.1972 after my normal rebanking which I recalled your attention sometime in October 1972, What shall I do although you told me to wait as the payroll clerks are busy on other work. I consider this instruction very dangerous as I don't like to keep cash in my safe for long time.

(Sgd.) J.S. Bangura

Payment Cashier"

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As previously mentioned the respondent's case embodied in paragraph 6 of the Statement of Defence and Counterclaim and counsel has urged on us to hold that contrary to the learned trial judge's finding the appellant has been guilty of such a serious dereliction of duty that the respondents were justified in dismissing him summarily from their employ. This is an issue of fact and as regards the first allegation that the appellant made payments which were not supported by valid and authorised job eards the learned trial judge had this to says:-"The evidence produced points to the fact that the plaintiff did not prepare job cards. The evidence goes further to say that on pay day the job cards were handed over to the time keepers who were always present and it was they who used to call out the names on the job cards and then identify the worker to the plaintiff before he paid him. On the evidence therefore there is nothing to show that the plaintiff was connected in any way with the allegedly forged job cards.

On this same allegation the defendants did not produce any of the allegedly forged Job cards before this Court, There was also the allegation that there was some difference between the number of, job sards handed over to the plaintiff for payment purposes and the number returned after payment. Again no record was produced by the defendants in support of this allegation."

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As regards the second and third allegations that the appellant kept cash from wages in his custody for more than three days and that he refunded the sum of Le, 1 ,045.47 from his own monies in part satisfaction of a general deficit of Le 4,164.31 on 2nd January 1973 after it had been pointed out to him that his reconciliation statements were erroneous, the trial judge found that the appellant was justified in not rebanking the excess cash he had discovered because of instructions he had received from the Finance Office to hold on to such cash until such time as he the Finance Officer should communicate with him. The appellant stated in evidence that it was the Finance Officer who asked him on 2nd January 1973 to go and pay the amount and that he thereupon took out the money from his safe and went and paid it. The Finance Officer was appellant's immediate boss and according to Exhibit E appellant was under his supervision. Indeed the appellant in his "Defence to Counterclaim and Reply" had pleaded that if at all there were any mandatory regulations which required him to rebank any monies kept by him within 48 hours such regulations had been waived by the issuing of Exhibit Q to him by the Finance Officer. The Finance Officer did not deny receipt of Exhibit P or the issuing of Exhibit Q. The inference is that the appellant acted on the Finance Officer's instructions, It would be unreasonable to say that he was disobeying lawful instructions when in fact he was acting under the instructions of his immediate boss who up to the time of trial' was still in the respondents' employ. If indeed it was in breach of regula-tions it was riot so serious as to warrant summary dismissal especially as the Finance Officer was still in service Assumin that this was an unlawful order as stated by the Court of Appea which the appellant was not jusifieid in obeying, I do not this that this default constituted such an act of grave misconduct

or a flagrant violation of laid down regulations as to warrant the summary dismissal of the appellant.

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As regards the fourth allegation that the appellant failed to provide a reconciliation statement for January 1973 the appellant stated in evidence that he could not have prepared such a statement as by then he had been relieved of his duties. This was never controverted by the respondents.

The Court of Appeal in its Judgment referred to the case COULSTON & CO. LTD. vs CORRY (1904-7)All. E.R. Rep.685 where it is stated in the Head Note that -

"in an action for wrongful dismissal, if the defendant pleads that the misconduct of the servant Justified the determination of the contract of service, the question whether the misconduct proved established the right to dismiss the servant is a question of fact for the jury."

Lord James in his Judgment, at p. 687 observed:-"The sufficiency of the justification depended upon the extent of the misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal."

In LAWS vs LONDON CHRONICLE (INDICATOR NEWSPAPERS)LTD. (1959) 2 All. E.R. 285 where an employee had been dismissed summarily for one act of misconduct. Lord Evershed M.R. observed:-

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"I think that it is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think...... that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractural conditions."

Sellers, L.J. in SINCLAIR vs NEIGHBOUR (1966) 3 All. E.R. 988 expressed his own views on the question as to what kind of conduct by an employee would justify instant dismissal by the employer thus (at p. 989):-

"The whole question is whether that conduct was -of such a type that it was inconsistent. in a grave way — incompatible — with the employment in which he had been engaged as a manager."

In the instant case the respondents had sought to justify the summary dismissal of the appellant. The grounds on which. they had relied were found by the learned trial judge, after an exhaustive review of the entire evidence, to be untenable. It was within his province to decide on The credibility of the witnesses and it has not been shown that his evaluation of the evidence or the inferences he drew from facts were wrong.

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As regards the award made by the High Court, I would allow the amount of Le 365.30 claimed as arrears of half salary from 14th March, 1973 to 30th September, 1973. On the claim for salary in lieu of notice, the. appellant, according to the terms and conditions' of service as laid in Section A of the Respondents' Rules Regulations and Conditions of Employment - Exhibit U - is entitled to only one month's notice or pay on termination of employment; I would also allow the amount awarded under this head vis, Le 112.40.

As regards the claim for Le. 224.80 for salary for the months of January and February 1974 arising out of redundaney as a result of his wrongful dismissal I see no basis for the learned trial judge making such an award. There is no justification also for awarding Le.1,356,00 general damages' since the award of one month's salary in lieu of notice constitutes general damages. This award as well as the award of Le.224.80 redundancy pay are set aside.

I would allow the appeal and set aside the judgment of the Court of Appeal and restore the judgment of the High Court to the extent stated above.

Costs in this Court and in the lower Courts to the appelant.

(Sgd.) Hon. Mr. Justice C.A. Harding, J.S.C.

 I agree,... (Sgd.)Hon. Mr. Justice E. Livesey Luke,C.J.

I agree ... (Sgd.)Hon.Mrs.Justice A.Awunor-Renner,J.S,C.

I agree ... (Sgd.)Hon.Mr.Justice S.Beccles Davies,J.S.C.

 I agree .... (Sgd.) Hon. Mr. Justice S.M.F, Kutubu, J.A.