HAGE v. TALEH

JUDGMENT OF AMISSAH J.A.

The defendant has asked this court to set aside an award made by the arbitrator, Mr. Jonathan Arthur, in this dispute which was referred to him. Counsel has argued on the defendant's behalf that the arbitrator misconducted himself to his client's prejudice in that the arbitrator wrongly construed what was in fact a tenancy agreement between the plaintiff and the defendant as a contract of employment. Thus consequences which flow from the one type of agreement but not from the other have been wrongly attributed to that other to the defendant's detriment.

The arbitration arose out of an agreement whereby the defendant undertook to manage the plaintiff's bakery. The plaintiff was described in the agreement as the employer and the defendant as the employee. There was the clause usual in service agreements that the employee shall devote his services exclusively to the management of the employer's business. But there was another clause somewhat unusual in agreements of this kind that the employee was to receive by way of remuneration after all expenses of the business have been paid the first £G100 per month of the net profit and all net profits over £G350 per month. In effect the employee was entitled to keep all net profit above £G250 made by the bakery in a month, the employer getting a fixed £G250.

[p.374]

For two months in 1963, the defendant failed to pay the plaintiff the stipulated £G250. The plaintiff therefore put an end to the agreement and sued the defendant for damages, both general and special, for the breach of the agreement. The special damage was founded on damage and loss to the bakery premises and equipment. Except for a very minor item, the plaintiff was unable to prove this, and his claim for damages on this score therefore failed. But in the course of the arbitration the defendant volunteered information to the effect that he had while managing the plaintiff's bakery been managing another and even more profitable bakery. The plaintiff therefore amended his claim to include this breach. Damages for this and for the breach occasioned by his failure to pay the agreed monthly sum were assessed at £G4,000.

The defendant has once before requested this court to set aside the original award of the arbitrator. Archer J. who dealt with the application then thought it unjust to set aside the award either in whole or in part. But he decided to remit the award of £G4,000 damages to the arbitrator for reconsideration with