FALKENBERG AND BRAUN LTD
AND
E. SCHMIDIL
V
FLORENCE MCGAURAN
COURT: THE SIERRA LEONE SUPREME COURT
CORAM:
Hon. Mr. Justice E. Livesey Luke - Chief Justice
Hon. Mr. Justice C.A. Harding -Justice of the Supreme Court
Hon. Mr. Justice O. B. R. Tejan - Justice of the Supreme Court
Hon. Mr. Justice. S. Beccles Davies- Justice of the Supreme Court
Hon. Mr. Justice C. S. Davies - Justice of the Court of Appeal
REPRESENTATION
Counsel for the Appellant: J.H Smyth ESQ. Q.C, Manly Spain ESQ
Counsel for the Respondent: Ms. Adelaide Dworzack
JUDGEMENT DATED: 17TH JULY 1983
FACTS
The respondent herein claimed of entering into an employment contract with the 1st appellant after various conversations and that the contract was partly oral and partly written. During those conversations before the formation of the contract, the 1st appellant’s secretary who was deceased before this legal action, represented to the respondent that after working for five years she would receive a handsome gratuity. This however, according to the respondent, made her serve the 1st appellant for ten years.
During her service of employment, the respondent requested for change of the terms of the contract and increment in salary. The terms were changed because of her domestic engagements but her salary was never increased. Due to the lack of improved conditions of her service of employment, she then tendered a letter of resignation to the appellant and hoped she would be paid a long service gratuity.
The appellant acknowledged the letter and promised to settle the issues contained in the said letter in the next few weeks after the date of receipt of the said letter. However, the respondent was not paid a gratuity. She then brought a claim for breach of contract partly in oral and partly in written against the first and second appellants, the latter being the managing director of the former. Upon proper construction of the evidence (exhibit A, the letter of employment) the trial judge ruled in favor of the respondent on the basis that the letter of employment referenced the various conversations that took place between the parties which led up to the written agreement and as such it meant there was a collateral contract as claimed by the respondent. The appellants appealed to the CA but their appeal was dismissed. They then filed an appeal to the SC and at the SC, the issues were as follows:
ISSUES
● Was there an oral collateral agreement to the written contract entered into by the respondent and the first appellants?
● Was the trial judge right in refusing to award the appellants cost of the action?
DECISION
The appeal was allowed for the following reasons:
First, if the secretary of the 1st appellant at the material time when those oral representations leading up to the written contract were made, as a matter of fact, indeed told the respondent of paying her gratuities, then the respondent would have insisted on an alteration of the terms of the contract in the earliest possible time or at the time when her financial terms of the contract were altered. The court held the oral conversations to be nothing but mere representations that do not form a collateral contract. In fact taking all the circumstances in mind, the court stated that no reasonable man would reason that there was a term in the contract making payment for gratuities to the respondent on her termination of employment.
Secondly, the Court declared that the claim brought against the second appellant was frivolous on the basis that the second appellant was not a party to any agreement between the respondent and the 1st appellant. Therefore, the respondent’s arguments that the second appellant was an agent or servant of the 1st appellant by being the Managing Director of the 1st appellant and that the 2nd appellant refused to increase her salary did not hold sway. The 2nd appellant was therefore entitled to cost.
Written by: Abu Bakarr Marrah
Edited by: C.M Jonah