BANK OF WEST AFRICA LTD. v. ACKUN

JUDGMENT OF SARKODEE-ADOO J.S.C.

The two main questions raised in this appeal are, firstly, whether or not the learned trial judge erred in law in rejecting the secondary evidence of the defendants in the course of his judgment, such evidence having been admitted without objection whereas similar evidence of the plaintiff was considered and the judgment for the plaintiff based himself regarding the onus of proof placed on the defendants in respect thereon; and secondly, whether or not the learned trial judge misdirected of the additional or separate issue raised by them.

The trial was before Ollennu J. as he then was, and this appeal is against his judgment delivered on the 20th November, 1961, in the High Court at Accra.

The plaintiff's claim was for the sum of £G600 being six months' salary due to him as gratuity for services rendered as an employee of the of defendants. The particulars of claim as amended at the trial were as follows:

"(1) The plaintiff was employed on the clerical staff of the defendants for 25 years until his retirement in August, 1960.

(2) By an agreement between the defendant bank and its employees in 1947 and as reviewed in 1948 it was agreed that an employee on the clerical staff wihing to retire after 20 years' service was to be given a gratuity equal to six months' salary.

(3) Plaintiff at the time of his retirement had served more than 20 years and was receiving a salary of £G100 per month."

The defendants by way of defence to the plaintiffs particulars of claim averred that although the plaintiff entered their service as a clerical officer, at the time he left in 1960, he had attained acting managerial position; they denied that the plaintiff retired from their service but said he rather left unceremoniously and joined the Ghana Commercial Bank; that an agreement was reached in 1947 with their employees that the gratuity to be given to a clerical officer upon his retirement is the equivalent of three months' salary; and that in 1948 it was further agreed with staff representatives by way of amendment that six months' salary was to be paid to a clerical officer retiring with their approval or permission. The [p.178] defendants therefore denied that the plaintiff was entitled to a gratuity of £G600 or to any gratuity at all since he did not retire with their approval or permission but rather left their service unceremoniously to join the Ghana Commercial Bank.

By consent the issue set down for trial was, "Whether the p