Charles D.K Nicol V Country Director, Care International in Sierra Leone & ANOR (CIV APP 5 of 2007) [2015] SLCA 1126 (12 February 2015)

ry Civ. App. $1/2007 INTHE COUERT OF APPEAL OF SIERRA LEONE . BETWEEN: CHARLES D.K.NICOL PLAINTIFF/RESPONDENT AND. :

1. COUNTRY DIRECTOR - DEFENDANTS/APPELLANTS CARE INTERNATIONAL IN SIERRA LEONE

2. CARE INTERNATIONAL IN SIERRA LEONE

Coram

Hon, Justice S. Koroma = asc Hon, Justice E.E, Roberts = Isc Hon, Justice A. Showers - UA ADVOCATES: MS. Turay Esq, for Plaintiff Respondent V.V. Thomas, Esq, for Defendants/Appellants DGMENT DELIVERED THIS _[2““pay oF FEBRUARY, 2015 ROBERTS, JSC By a letter dated 14" June 2007 the Respondent, Charles D. K. Nicol, was offered an employment by the 2" Appellant Company, CARE INTERNATIONAL IN SIERRA LEONE, as Internal Auditor on a fixed term contract effective 2° July 2007 to 30" June 2008. According to the Appellants this employment was subject tothe Respondent serving a probationary period of 6 months before confirmation as contained in the letter oF employment dated 14" June 2007 as well as the company’s Human Resources Manual ‘The Respondent accepted the appointment and started work. The 2" Appellant Company ‘pened an account at Rokel Commercial Bank in the name ofthe Respondent into which his monthly salary and allowanees were paid. By letter dated 21" August 2007 however the 2% Appellant terminated the employment ofthe Respondent effective 24” August 2007. This letter was signed by the 1" Appellant who was the Country Director ofthe 2°! Appellant. Agerieved by the said termination, the Respondent issued a Writ of Summons

~ (against the 1* and 2” Appellants) dated 21* September 2007 claiming several reliefs as follows: : a Adeclaration that the purported termination of the Plaintiff from the ‘employment of the Defendants was wrongful. b. Damages for breach of contract. : © Loss of Salary/earnings from I* day of September, 2007 - 300" June, 2008 at Le 25,739,799.70 (Twenty-five Million Seven Hundred and Thirty-Nine Thousand Seven Hundred and Ninety-Nine Leones Seventy cents) Loss of Social Security contributions for the period - I" September, 2007 ~ 30" June, 2008 at Le3,607,500.00 (Three Million Six Hundred and Seven Thousand Five Hundred Leones). © Leave pay as assessed by this Honourable Court. Interest pursuant to section 4 of the Law Reform Miscellaneous Provisions Act Cap. 19 of the Laws of Sierra Leone 1960, & Any further reliefs that this Honourable Court may deem fit and just, Costs of this action ‘The Appellants entered an appearance on the 28" September 2007 followed by a Defence dated 5" October 2007, The Respondent then filed a Judges Summons dated $® October 2007 praying for judgment against the Appellants in respect of the reliefs/laims Contained in the said Writ of Summons. The Appellants filed an affidavit in opposition After arguments and submissions the learned trial judge delivered his Ruling on the 14" November 2007 granting Summary Judgment in respect of the relicfs/claims contained in the said Writ of Summons. The Appellants being dissatisfied with the said Ruling filed a Notice of Appeal dated 23° November 2007 which contained the following grounds.

(1) That the Learned Judge having agreed that there was no contractual relationship between the Plaintiff and the I Defendant, who was sued Jointly and severally with the 2™ Defendant, filed to dismiss the Plaintif’s application against the 1" Defendant under Order 16 of the High Court Rules, 2007 as far asthe 1" Defendant was concerned and appropriate consequential orders on such dismissal. 2) That the Leamed Judge erred in law when he held in the penultimate - paragraph of his Ruling as follows:

. “In the present case even if it is true thatthe Plaintiff was required to serve . probation the terms and conditions prescribed how this probation was to be . served (i.e. 5 months and thereafter assessment), prescribes when assessment during probation was to take place (one month to the end of Probation) and the period of notice to be given before termination (at least ° 2 weeks it could even be four weeks but not three days). The Defendant clearly breached those provisions. He failed to comply with the contract of ‘employment and so is unprotected. The employee plaintiff has «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 2" Defendant has no defence to the claims. In that:

(@) That the 2 Defendant was at liberty to terminate the Plaintiff's

‘employment on 2 weeks’ notice pursuant to his contract with the 2"! Defendant without any assessment after serving 5 months of his probationary period.

(6) On the affidavit evidence before the Court on Plaintif?’s application, there were issues or questions in dispute which ought tobe tried, namely:

(Whether the tender of 2 weeks’ salary in liew of notice by the 2"!

Defendant and the acceptance thereof by the plaintiff did not absolve the 2" Defendant of any further liability to the Plaintiffand if not, what was the effect of such tender and acceptance in Law. (i) ‘That the affidavit in opposition sworn to on the 17 October 2007 (on behalf of the 2% Defendant raised issues which ought to have been tried as defences to the Plainti’s claims,

G) That the Learned Judge erred in Law and came to the wrong conclusion in ranting to the Plaintiff liberty to sign final judgment against the 2™! Detendant forthe sums of Le25,739,799 less Le414,491,35 and 1Le3.607,500 in that:

() The measure of damages to which a successful plaintiff who was on

- probation and entitled to 2 weeks? notice of termination is entitled is the salary he would have earned under his contract during his employment period of 2 weeks’ notice.

(b) Having received the sum of Le414,491.35 being 2 weeks” salary, the Plaintiff was not entitled to any other amount by way of general

: damages.

(©) The special damages to which a successful plaintiff for wrongful termination may be entitled is loss of income in respect of the time which might reasonably elapse before he finds alternative employment ‘and not his full salary and employer's NASSIT Social Security contributions for the unexpired period of his contract of employment.

(4) That the said Ruling and Judgment consequent thereon is against the

weight of the evidence.”

‘This Court gave directions upon which counsel filed written Arguments and Submissions on behalf of the Appellants and Respondent respectively which were followed by brief oral submissions by counsel. | shall now proceed to deal withthe various grounds as contained in the said Notice of Appeal.

GROUND |

{In arguing this ground counsel for the Appellants submitted that the Learned Trial

Judge agreed that there was no contractual relationship between the Respondent and the

1M Appellant who was sued jointly and severally withthe 2™ Appellant but yet failed to dismiss the claim against him. Counsel for the Respondent on the other hand submitted that the Summary Judgment was not against the I" Appellant but only against the 2 ‘Appellant, adding that the Learned Trial Judge in a way conceded that the I" Appellant had no case to answer. 1 have read all the documents filed relating to the Respondent's employment... The first paragraph of The letter of employment dated 14" June 2007 (see page 23 of the Records) states

“CARE — Sierra Leone is pleased to offr you contract of employment as Internal

Auditor." Furthermore the Defence filed on behalf of the 1" and 2"! Appellants clearly insisted that

. the 1 Appellant did not employ the Respondent. (See paragraphs | and 8 of the sd

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