Takoradi Flour Mills V. Samir Faris [2005-2006] SCGLR 882
Material Facts:
The plaintiff-respondent-respondent, hereafter the respondent, instituted an action in the High Court for an order that the defendant-appellant-appellant, hereafter the appellant, paid all entitlements and amounts due him and interests thereon till the date of payment. According to the plaintiff, he was entitled to an end-of service benefit after he resigned from Takoradi Flour Mills Ltd. To support his claim, the plaintiff testified that certain officers who were formerly employed by the appellant were paid those benefits when they retired from the company. He also tendered in evidence as Exhibit Q and T, letters he wrote to the appellant demanding that certain payments be paid to him.
On the other hand, the appellants also tendered Exhibit 1, which was a contract of appointment for the plaintiff witness, who was of the management class just as the respondent. Per this Exhibit, there was no provision on the payment of end-of-service benefits.
Procedural History:
At the trial court, judgement was given in favour of the respondent on the grounds that the respondent’s evidence that former employees were paid end-of-service benefits was not challenged by the appellant, among others. On appeal against this decision, the Court of Appeal dismissed the appeal, and the appellant appealed to the Supreme Court, arguing, among others that the trial court wrongfully placed the burden of proof on the appellant.
Issue:
Whether or not the respondent was entitled to end-of-service benefits.
Holding:
The respondent did not produce enough evidence to prove his claim that he is entitled to end-of-service benefits.
Ratio Decidendi:
When the respondent claimed that he was entitled to end of service benefits, the defendants denied this, arguing that the company did not pay any to management staff, who were hired on a personal contract basis. Neither the respondent nor the appellant produced any document containing the terms of the contract. However, their lordships noted that
the respondent was bound by law to prove the terms of his employment and that he was entitled to receive benefits at the end of his service to the company.
Their lordships stated that a great deal of the submissions in support of the present appeal centred on the burden of proof, or the onus probandi . Per this burden
It is the duty of the party who asserts the affirmative to prove the point in issue. This was expressed in classical terms: "Ei incumbit probatio qui dicit, non qui negat.".
In the present case, it was the respondent who made a claim that he was entitled to end-of-service benefits and was therefore required to adduce evidence sufficient to establish a prima facie case because
In law where a fact is essential to a claim, the party who asserts the claim has the burden to persuade the court of the existence of that fact. The standard of proof is by a preponderance of the probabilities.”
Ansah J.S.C. added that:
In law, all issues of fact in dispute are proved by evidence. It is a fundamental principle in the law of evidence that he who asserts or claims an entitlement has the onus of proving the basis of that claim. According to the oft-cited case of Majolagbe v Larbi [1959] GLR 192, a party on whom the burden of proof lies proves an averment in his pleadings, capable of proof in a positive way, not by merely mounting the witness box and repeating it on oath but by producing corroborative evidence that must necessarily exist if his averment were to be true. The corroborative evidence may be documents, like one on the terms of a contract, otherwise called the terms or conditions of service.
Again, it was the respondent who asserted that he was entitled to certain benefits at the end of his service and therefore bore the onus of proof on that issue when the appellant denied it in his statement of defence and in his oral evidence.
Although the appellants asserted that the trial court put the burden of proof on the appellant, that criticism was misconceived because the law is that once the respondent was able to discharge the burden of proof on him, which he did by his evidence, the burden of proof shifted to the appellant. Fundamentally, the appellant can be said to have also discharged that burden when it tendered Exhibit 1 (supra), a contract of appointment for persons in the same position as the respondent, which did not contain a provision on end-of-service benefits.
After the appellant had tendered some evidence on the terms of contract of persons in the same position as the respondent, the respondent was expected to have also tendered his own appointment letter, which contained a provision on his entitlement to end of service benefits, but he failed to do so. Instead, the respondent tendered exhibits Q and T, which were merely letters he wrote to the appellant demanding that he be paid. In the opinion of their lordships, these letters were mere self-serving acts. Per Ansah JSC,
The law did not permit a party to prove his case by those acts. Beoku Betts J stated the principle succinctly in Nii Abossey Okai II v Nii Ayikai II, 12 WACA 36 that:
"It is recognised law that a person cannot by his acts prove anything in his favour (for they)... are not of the same class as admissions against interest."
Thus, exhibits Q and T did not help prove the case of the respondent. These self-serving acts cannot be multiplied to make a proof of an issue.
…
To sum up on this point, it is sufficient to state that this being a civil suit, the rules of evidence required that the respondent produced sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12 (2).
My understanding of the rules in our Decree on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.
While the respondent produced other documents (like exhibits Q and T), the most important document the respondent should have produced was one that contained the terms and conditions under which he was employed, and included a provision on end-of-service benefits. His failure to do so is of dire consequence, as the court is not satisfied that he is entitled to end-of-service benefits.
Principles in Case: