Edmund Lawrence Appellant v St. Kitts/Nevis/Anguilla National Bank Ltd Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: MOE, J.A.,BISHOP, C.J.
• Judgment Date: 01 October 1990
• Judgment citation (vLex): [1990] ECSC J1001-1
• Docket Number: CIVIL APPEAL NO. 1 of 1988
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 01 October 1990

[1990] ECSC J1001-1

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Bishop—Chief Justice (Acting)

The Honourable Mr. Justice Moe

The Honourable Miss Justice Joseph (Acting)

CIVIL APPEAL NO. 1 of 1988

Between:

Edmund Lawrence

Appellant

and

St. Kitts/Nevis/Anguilla

National Bank Limited

Respondent

Appearances:

F. Bryant for the Appellant

C. Mitchum and L. Benjamin for the Respondent

MOE, J.A.

1 This is an appeal against a judgment of the High Court in which the learned trial Judge:—(1) awarded the appellant $8,250.00 as one month's emoluments on his claim for sums owed and payable by the respondent under the appellant's contract of employment with the respondent; and (2) dismissed a counterclaim by the respondent for $356,478.66 loss and damage suffered as a result of gross negligence on the part of the appellant.

2 Under a contract of employment between the parties the appellant was employed by the respondent as Manager. On the 8th March 1982 the St. Kitts/Nevis/Anguilla National Bank Limited (Special Provisions) Act 1982 was enacted. Shortly thereafter the appellant received the following letter:—

"St. Kitts-Nevis-Anguilla

National Bank Limited

Bassetere

St. Kitts

8th March, 1982,

Mr. Edmund Lawrence

St. Kitts-Nevis-Anguilla

National Bank Limited

Basseterre

Dear Sir,

3 I write to inform you that in consequence of the enactment of the St. Kitts-Nevis-Anguilla National Bank Limited (Special Provisions) Act 1982 a new Board of Directors has been appointed under the said Act.

4 I am therefore to inform you that the Board of Directors of the Bank requires you forthwith to surrender the keys, documentation and property of the Bank to the Chairman.

Yours faithfully,

William Liburd Chairman"

5 This letter was quickly followed by another letter bearing the same date and reads as follows:—

"St. Kitts-Nevis-Anguilla

National Bank Limited

Basseterre

St. Kitts

8th March, 1982

Mr. Edmund Lawrence

St. Kitts-Nevis-Anguilla

National Bank Limited Basseterre

St. Kitts

Dear Sir,

6 I Write to inform you that the Board of Directors has taken a decision to terminate your services with immediate effect.

7 You are therefore required to vacate the premises immediately.

Yours faithfully,

William Liburd Chairman"

8 The appellant left the Bank's premises and never returned. He received no emoluments from the respondent since February 1982.

9 The constitutionality of the legislation was challenged in Suit No. 16 of 1982 and on the 30th April 1982 the High Court declared the legislation to be unconstitutional, void and of no effect. On 17th May 1982 an order was made for a stay of execution of the judgment pending the termination of an appeal against the judgment.

10 On 1st March 1983 the Court of Appeal upheld the decision of the High Court and ordered a stay of execution of its judgment until its next sitting on September 1983 when it refused application for a further stay of execution. On 22nd October 1983 notice was given of an extraordinarymeeting of the respondent for 7th November 1983. The meeting was held, the appellant was present and by resolution at that meeting the appellant's services were terminated.

• (1) Emoluments from 1st March 1982 to 30th November 1983;

• (2) 2 years salary in lieu of notice;

• (3) a gratuity of $44,030.00;

• (4) a declaration of entitlement to pension in accordance with a term of his contract of employment.

The appellant claimed:—

11 The respondent denied liability for payment of any sum claimed and alleged dismissal for cause. It also counterclaimed for loss and damage suffered as a result of gross negligence on the part of the appellant.

12 The learned trial Judge while in no doubt that the appellant suffered loss as a result of what took place on 8th March 1982 took the view that the appellant's claim against the respondent for such loss was against the wrong party. He however found that the appellant did grant loans above his limit without the approval of the Board of Directors, that he made a loan to himself without the approval of the Board, and that he made a loan of $145,000 to non-resident non-nationals without there being permission for the granting of such a loan as is required under section 7 of the Exchange Control Act Cap. 115 and also without any security. He further found that the appellant, although instructed by the respondent to text solicitors institute legal proceedings to collect a loan of $145,000, was grossly negligent in failing to do so and caused the loan to become statute barred. He viewed these as matters on any of which the respondent would have been entitled to dismiss the appellant for cause. He held the appellant was dismissed for cause on 7th November 1983 and in the circumstances not entitled to gratuity or pension. He held further that the dismissal for cause nullified the effect of a clause in the appellant's contract providing for 2 years salary in lieu of notice. He held the appellant was entitled to emoluments from 1st to 8th March 1982 but took the view it was not unreasonable to pay him for the month of March.

APPEAL:

13 It is unnecessary to set out verbatim the various grounds of appeal filed and argued. The main ground of the appellant's complaint wasagainst the learned Judge's finding that the appellant was dismissed for cause on the 7th November 1983. It was submitted first that the termination of service of the appellant in the circumstances must be considered as forced retirement. There was no merit whatever in this submission. There was evidence from the appellant himself that at the extraordinary general meeting of the respondent on the 7th November 1983 the resolution for his dismissal was passed and that he was dismissed on the 7th November 1983. He gave evidence that when he was dismissed on the 7th November 1983 no one told him that the cause of his dismissal was or included the Sheen, Webster-Antilles Petroleum matter. The second submission was that there was no evidence that the appellant was dismissed for cause. Referring to the fact that at the date of the dismissal the respondent did not state the ground for dismissal, Counsel submitted that when no cause has been shown at the time of dismissal, causes found later cannot be incorporated by reference as a cause for dismissal. Oddly enough he said his submission was based on a passage which appears at paragraph 939 Halsbury Laws of England (Third Edition) Vol. 25, referred to by the learned Judge and reads as follows:—

"It is not necessary that the master, dismissing the servant for cause, should state the ground for such dismissal; and provided good ground exist in fact it is immaterial whether or not it was known to the employer at the time of the dismissal. Justification of the dismissal can accordingly be shown by proof of facts ascertained subsequently to the dismissal, or on grounds differing from those alleged at the time."

• 1) That the appellant did grant loans above his limit without the approval of the Board of Directors;

• 2) that the appellant did make a loan to himself without the approval of the Board and at a more favourable rate of interest;

• 3) that the appellant did make a loan of $145,000.00 to non-resident foreigners…….in breach of section 7 of the Exchange Control Act, Cap. 115………..and without security,

The appellant complained that the findings:—

14 were unreasonable.

15 There was ample evidence on which the learned Judge could have come to these findings and I see no reason to interfere. There was no challenge to the finding of the learned Judge that the appellant was grossly negligent in failing to obey instructions which failure causedthe loan of $145,000.00 to become statute barred. There was therefore good ground in fact for dismissal of the appellant summarily. The fact that the ground for such dismissal was not stated at the date of the dismissal is of no import. The learned Judge's finding is sustained.

16 The appellant having been guilty of conduct which justified summary dismissal was in breach of his contract of employment and so disentitled to those benefits under the contract which would have been derived from his satisfactory performance of the contract. I can find no fault with the learned Judge's conclusions that the dismissal of the appellant for cause disentitled him to the benefit of the clauses of the contract providing for:—

• a) 2 years salary in lieu of notice on termination of the contract;

• b) gratuity on termination of the contract;

• c) pension at the age of 55 years.

17 The second ground of appeal was that the appellant having had his services terminated on 7th November 1983 is entitled to salary from 1st March 1982 to 7th November 1983. The appellant's position is that he was in the employment of the respondent during that period and therefore entitled to his monthly emoluments under his contract of employment. Counsel for the respondent did not dispute that the appellant may have suffered a loss during the period but submitted that the loss was not caused by the respondent. Counsel referred to the findings of the learned Judge that throughout the period concerned the appellant was absent from work, the respondent was deprived of the benefit of his services and his absence was without the respondent's approval. That the respondent would not be liable for any loss of wages suffered by the appellant during that period he was absent from work without the approval of the defendants. Reference was also made to paragraph 915 Vol. 25 Halsburys Laws of England (3rd Edit.) where it is stated:—

"When the contract of service is an entire contract providing for payment on the completion of a definite period of service or of a definite piece of work, it is a condition precedent to the recovery of any salary or wages in respect thereof that the service or duty shall be completely performed,...