March 15, 2013
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Ghana Supreme Court, per Justice Sophia Adinyira (JSC), dismissed Auto Parts’ appeal from a unanimous Court of Appeal decision that had awarded commission to the former sales manager, Samuel Essuman. Essuman alleged an oral agreement to receive 0.8% commission on contracts he canvassed and won for Auto Parts, supported by Exhibit D (34 successful tenders) and Exhibits E and F (payments). The High Court found a commission arrangement and part payments but misread Exhibit D’s supplier column (Nichimen, Sumitomo, Nissan Trading) as indicating tender winners and credited Essuman with only 14 tenders. The Court of Appeal corrected that error and held Essuman proved all 34 tenders. On further appeal, the Supreme Court held the agency evidence arose from testimony led by both parties and, under the Evidence Act 1975 (NRCD 323), unobjected evidence must be considered; per Nasser v. McVroom, failure to object precludes complaint absent substantial miscarriage. The Court clarified that commission hinged on winning tenders, not who supplied products, and affirmed entitlement on all 34 tenders.
SOPHIA ADINYIRA (MRS.) JSC:
On 5th March 2013, this Court dismissed the appeal by the Defendant/Respondent/ Appellant and reserved its reasons to be filed later. These are the reasons.
FACTS
The Plaintiff/Appellant/Respondent (hereafter the Plaintiff) was a former employee of the Defendant/Respondent/Appellant (hereafter Defendant). Plaintiff claims the Defendant has neglected to pay him agreed commission on contracts he won for the Defendant. He therefore brought an action against the Defendant in the High Court, Accra seeking the following reliefs:
1. (a) payment of 2,544,847 Japanese Yen
(b) US $16, 043.85
(c) 394,322.00 Cedis
Being commission due and owing to Plaintiff by the Defendants.
2. Interest at the prevailing bank rate
3. Damages for breach of contract and
4. Costs
Plaintiff claims he was employed as a sales manager in August 1995 by the Defendant. A month after his employment with the Defendant, he was asked by the company, through its Executive Director to actively canvass for and win contracts for the Defendant. This agreement was made orally. Initially the remuneration was 1% of the contract sum but it was subsequently renegotiated and reduced to 0.8%.
Plaintiff claims that this additional duty involved, among others, searching for tenders, preparing and submitting bid documents, following up on bidding applications to ensure their success, and ensuring prompt payments for contracts won for the Defendant.
It is the case of the Plaintiff that he was able to win 34 contracts for the Defendant and relied particularly on Exhibit D in support of his claim. He claims that between 1995 and 2001 the commission due to him on these contract awards had accumulated to 2,564,350.48 Japanese Yen, US $ 19,948.46 and 21,594,321.88 Cedis.
Plaintiff claims after repeated demands and following his resignation from the company, the Defendant made seventeen part payments totaling 51 million Cedis for which he issued receipts. Plaintiff contends that the last payment of 3,000,000 Cedis was made on 12th November, 2002.
The Defendant denied the Plaintiff’s claim and contends that though the Plaintiff was a sales manager in the company, they never entered into any such special agreement with him and that the Plaintiff was never on commission and was at all times a salaried worker. It is their case that as part of his schedule, he was given tender documents to be presented on behalf of the company and was remunerated by way of a monthly salary.
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