
JUDGMENT  
FACTS  
The Plaintiff was employed, first with Classfam Pharmacy and then subsequently, with Classic Herbal Centre, both operated by the 2nd Defendant as Managing Director at all material times.  In both establishments, Plaintiff was designated as a Shop Manager on full time basis.  His employment with Classfam Pharmacy was regulated by a letter of employment dated 30th March, 2006 while his employment with Classic Herbal Centre was regulated by a letter dated 2nd July 2007.  At a later date, the 1st Defendant, Classfam (GH) Ltd., took over the two business operations of the 2nd Defendant.  On 1st January, 2010, the Plaintiff’s salaried position was converted to commission on sales by the 1st Defendant.  The Plaintiff, not satisfied with this change in his position has brought the present action seeking the following reliefs against the Defendants, jointly and severally or in the alternative as per his writ of summons and statement of claim:  
“1. A declaration that the unilateral alteration of Plaintiff’s contract of employment by the Defendant by a letter dated January, 1, 2010 amounts to unfair termination of Plaintiff’s employment with the Defendant. 2. Damages for unfair termination. 
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3. An order for the payment to the Social Security and National Insurance Trust of Plaintiff’s monthly social security contributions for the months that Defendant failed to pay same, as specified in the attached statement of claim. 4. Compensation for denial of Plaintiff’s annual leave entitlements for the period that Plaintiff was in the employment of the Defendant.” 
Subsequently, pursuant to the Order of his Lordship Justice Esuman Adu dated 14th November, 2011, the Plaintiff amended his writ of summons and statement of claim to read as follows: “1. A declaration that the unilateral alteration of Plaintiff’s contract of employment by the Defendant by a letter dated January, 1, 2010 amounts to wrongful dismissal or, in the alternative, unfair termination of Plaintiff’s employment with the Defendant. 2. Damages for wrongful dismissal or, in the alternative, unfair termination. 3. An order for the payment to the Social Security and National Insurance Trust of Plaintiff’s monthly social security contributions for the months that Defendant failed to pay same, as specified in the attached statement of claim. 4. Compensation for denial of Plaintiff’s annual leave entitlements for the period that Plaintiff was in the employment of the Defendant.” 
From the onset, I would note that this case was transferred to the Commercial Court by Her Ladyship, the Chief Justice, from the Industrial and Labour Court on 17th November, 2015 for continuation and adjudication.  
I have reviewed the record of proceedings and the evidence adduced in this case extensively.  Plaintiff’s case consisted of his own testimony and the documentary evidence he submitted in support of his claim, marked in the record as Exhibits ’A’ through ‘D’.  On the other hand, the Defendants’ case was limited to the cross-examination of the Plaintiff, the testimony of its witness and their supporting documents marked into evidence as Exhibits ‘1’ through ‘7’.    
Plaintiff’s Case  
The case of the Plaintiff is that he was employed by the 2nd Defendant, then doing business in the name and style of Classfam Pharmacy, as a shop manager on full time basis.  His appointment afforded him monthly salary with overtime allowances and bonuses.  The appointment letter was dated 30th March, 2006 but the appointment was to take retroactive effect from 2nd February, 2005.  Further, the overtime allowances and bonus were also to take effect from April 2006.  It is the Plaintiff’s claim that he was later assigned to work with Classic Herbal Centre, another business name under which the 2nd Defendant was trading.  
According to Plaintiff, he was appointed a shop manager at Classic Herbal Centre by letter dated 2nd July, 2007.  His position as a shop manager with Classfam Pharmacy continued with Classic 
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Herbal Centre.  In the course of time the 1st Defendant took over the business of the 2nd Defendant and assumed responsibility as Plaintiff’s employer jointly with the 2nd Defendant.    
It is the complaint of the Plaintiff that by a letter dated 1st January, 2010, the terms of his employment were changed and his position of shop manager was altered to that of a marketing representative; and his remuneration changed from salary to commission on sales.  These changes, the Plaintiff, alleges were unilateral, without notice, unfair and amounted to wrongful dismissal.  
Plaintiff further alleges that he was not granted leave for the period he worked with the Defendants and that the Defendants failed to pay all his social security contributions to the Social Security and National Insurance Trust (hereinafter, “SSNIT”).  
Defendants’ Case  
The Defendants on their part contend, in the main, that the alleged change in the Plaintiff’s terms of employment was the result of a management decision taken during discussions at the general meeting by management staff which included the Plaintiff by virtue of his position as the Shop Manager.  The Defendants, therefore contend that the Plaintiff cannot now turn around to allege that the change in the terms of his employment was a unilateral act of the Defendants.  The Defendants further contend that if the Plaintiff was dissatisfied with that decision, he should have stated his dissatisfaction in a response to the memo dated 1st January, 2010, that Defendants sent to him reiterating the decision that was taken at the management meeting rather than vacating his post.  In the circumstances, the Defendants had the right to summarily terminate his employment.  
The 2nd Defendant further alleges that the Plaintiff, as shop manager, by his negligence caused financial loss to the 1st Defendant, which loss was disclosed during stock-taking.  The 1st Defendant therefore counterclaims as follows:  
a. A declaration that by his employment duties with 1st Defendant, a duty of care relationship existed between the Plaintiff and 1st Defendant concerning the company’s assets entrusted to the Plaintiff. b. A further declaration that, by that relationship in relief (s) supra, the Plaintiff owed a duty of care to ensure that the 1st Defendant does not suffer any loss in the value of stock entrusted into his care. c. A declaration that the 1st Defendant has suffered loss and damage as a result of the negligence of the Plaintiff in the loss of the value of stock worth GH¢ 12,349.27. d. An order upon Plaintiff to pay to 1st Defendant the said GH¢ 12,349.27. e. An order upon Plaintiff to pay to 1st Defendant the said GH¢ 12,349.27 with interest at commercial rate to date of final payment. f. Costs. 
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ISSUES 
At the close of pleadings, the following issues were set down by the court for trial:  
1. Whether the Defendants unilaterally changed the terms of Plaintiff’s employment and, if they did, whether that change did not amount to wrongful dismissal of Plaintiff from his employment. 2. Whether there was any financial loss incurred by the Defendants and whether Plaintiff was liable for that loss. 3. Whether Plaintiff was denied leave and if so, for how long. 4. Whether Defendants failed to pay Plaintiff’s social security contributions due SSNIT for a total of fourteen (14) months. 
Additional issues that were raised in the course of the trial and in Defendants’ address are the following:  
1. Whether or not the High Court has jurisdiction to entertain this case. 2. Whether the 2nd Defendant is a proper party to be joined to the suit. 3. Whether the Plaintiff abandoned his office by absenting himself from work for which reason he was subsequently dismissed. 
I have given my thoughtful consideration to the rival contentions put forward by the parties to the suit as well as the written submissions filed by both Counsel on their behalf.  I have also considered the relevant provisions of the High Court (Civil Procedure) Rules, 2004 (C.I 47), the Labour Act, 2003, Act 651 (hereinafter, “Labour Act”), the National Pensions Act, 2008, (Act 766) and the case law on this matter.  
Jurisdiction Issue  
After this case has travelled through the court system for about five years and following a lengthy trial, the learned Counsel for the Defendants has realised, at the last minute, that he had participated in a trial over which the High Court has no jurisdiction.  This claim by Counsel for Defendants was raised for the first time in the written address he filed on behalf of his clients.  It is the claim of the Defendants that the High Court has no jurisdiction to entertain the case filed by the Plaintiff for an unfair termination of his employment by his employer.  According to the Defendants,   
“the Plaintiff’s writ filed before the High Court, Accra was incompetent as it was in clear breach of the statutory provision in Section 64 of Act 651.  It was a complete nullity and the High Court, Accra had no jurisdiction to entertain it… It also quite obviously has no jurisdiction to make an Order amending the writ and its indorsement and therefore the Order made on 14th November, 2011 pursuant to which the Plaintiff filed an amended writ and statement of claim … is void … 
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[t]herefore, … the Plaintiff had no claim before the court to be adjudicated upon.  The only claim before the court was that of the 1st Defendant which is its Counterclaim …”.   The issue of jurisdiction, as has been held in many decided cases, is fundamental and it touches squarely on the competence of this court to entertain or adjudicate on the issues presented before it.  See the case of ESSAH v. SOFO [1972] 2 GLR 301-304, where Edusei J, applied TIMITIMI v. AMABEBE (1953) 14 W.A.C.A. 374 at p. 377 and held that where there is no jurisdiction to hear a matter, the judgment or proceedings are void.  I am, therefore, required to ensure that the writ placed before me was filed in observance of due process of law without a disabling feature which will rob this Court of its Jurisdiction to hear this matter.    
It may be prudent to reproduce here the relevant portions of Section 64 of the Labour Act on which the Defendants rely to make their claim.  It states as follows:  
 “64. Remedies for unfair termination  (1) A worker who claims that the employment of the worker has been unfairly terminated by the worker’s employer may present a complaint to the Commission. (2) If on investigation of the complaint the Commission finds that the termination of the employment is unfair, it may (a) order the employer to re-instate the worker from the date of the termination of employment; (b) order the employer to re-employ the worker, in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or (c) order the employer to pay compensation to the worker. 
The Defendants’ case, as I understand it is that on the strength of Section 64 of the Labour Act, supra, because the Plaintiff’s claim as endorsed on his original writ of summons was for reliefs resulting from unfair termination, he was enjoined by that section to file his claim with the Labour Commission and not with the Courts.  In further support of this claim, the Defendants rely on the Supreme Court case of BANI v. MAERSK GHANA LIMITED [2011] 2 SCGLR, 800 where their Lordships held, inter alia, that   
“Sections 62 and 63 of the Labour Act 2003 (Act 651) set out clearly the law on fair and unfair termination of employment….. Section 64 of the Act provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission established under the Act.  If the Commission finds  that the termination of the worker is unfair, it may give him or her one of three remedies specified in the Act:  an order to the employer to re
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instate the worker from the date of termination of employment; an order to the employer to re-employ the worker in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or order the employer to pay compensation to the worker.  These statutory remedies are made available to the Commission but not, at least expressly, to the courts.”  
I am of the view that the learned Counsel misinformed himself on the interpretation he chose to place on the law and also on the evidence before the Court.  The word “may” used in Section 64 and reiterated by their Lordships in the quotation above, suggests to me that the aggrieved worker is empowered by the Labour Act with the liberty to file his complaint with the Labour Commission or to choose some other route.  This is in keeping with the definition given to the expression “may” in an enactment by Section 42 of the Interpretation Act (2009) Act 792, that "may" shall be construed as permissive and empowering.  Furthermore, the BANI v. MAERSK GHANA LIMITED case, cited above, dealt in part with the situation where the aggrieved employee was requesting reinstatement as against the Plaintiff herein’s claim for damages.  This view is supported by the fact that as a precursor to dealing with the issue of fair and unfair termination of employment under Sections 62 and 63 of the Labour Act, their Lordships stated that:  
“In Ghana, the statutory intervention to give employees the right to reinstatement has not been to set aside the equitable principle refusing specific performance to contracts involving personal service.  Rather, it is a remedy that is made available to the Labour Commission established under the Labour Act 2003.”  
It is only a court of law that has the power to assess and order damages.  The Act establishing the Labour Commission did not vest such powers in the Labour Commission, in my opinion.    
Be that as it may, the evidence before this Court shows that the Plaintiff filed a complaint with the Labour Commission before proceeding to file his writ with the Court.  On 23rd March, 2015, the Plaintiff testified as follows:  
“In 2010, 1st January, I received a letter from Classfam Ghana Ltd. signed by the 2nd Defendant that my appointment has been changed from a monthly salary earning to a commissioned worker. … I disagreed with the change.  I did not continue with the employment.  I took the matter to the Labour Commission.  The case was called several times, he appeared only once.  I decided to bring the case to the Court…”   
This testimony was not controverted on cross-examination nor did the Defendants provide the Court with any evidence to the contrary.  The position of the law on not cross-examining a witness 
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after he has given his evidence in chief, is well settled.  In the case of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882, Ansah JSC referred to the case of TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969, unreported] digested in 1969 CC, 76, where Ollenu JA stated thus: 
“In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.” 
The general rule is that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof, whether it is the Plaintiff who asserts a fact or the Defendant who makes a counterclaim.  See the cases of BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182, where the court applied the English case of HUYTON-WITHROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, and the Supreme Court of Ghana case of ABABIO v. AKWASI III [1994-95] Ghana Bar Report, Part II, 74.  The Evidence Act, 1975 (NRCD 323) (hereinafter, “NRCD 323”), encapsulates the foregoing principle in Section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of his claim, the existence or non-existence of which is essential to the claim or defence he is asserting. Section 12(1) of NRCD 323 provides a further element to the above stated general rule to the effect that in a civil case, such as the one in question, the burden of persuasion requires proof by a “preponderance of probabilities” defined in Section 12(2) as “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the evidence of a fact is more probable than its non-existence”.     
From the foregoing, it is clear that the onus is on the Defendants to prove their assertion that the Plaintiff did not file a complaint with the Labour Commission first before proceeding to Court, once the Plaintiff had led testimony to that effect.  The Defendants by failing to provide such evidence or testimony, left the Plaintiff’s testimony undisputed.  They failed to establish the requisite degree of belief in my mind to show that it was more probable than not that the Plaintiff did not file the complaint with the Commission.  I am therefore convinced that the Plaintiff did file the complaint with the Labour Commission and it was when it became evident to him that the Defendants did not wish to participate in those proceedings that he filed the writ with the court.  
Taking the arguments of Counsel for the Defendants in all aspects, therefore, there was no disabling reason that renders void the 14th November, 2011 Order of my brother, Justice Esuman Adu granting the Plaintiff leave to amend his writ of summons and statement of claim or would prevent this Court from having jurisdiction to hear this case, for that matter.    
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Joinder Issue  
The next issue I would like to discuss is the issue as to whether or not the 2nd Defendant is a proper party to be joined to the suit.  
The 2nd Defendant testified that he is the Managing Director of the 1st Defendant Company.  Indeed, all the correspondence tendered in evidence by both parties issued by 1st Defendant were signed by the 2nd Defendant in his capacity as Managing Director of the 1st Defendant.  See Exhibits “A”, “B” “C”, “3”, “4”, “5”, and “7”.  As Managing Director of the 1st Defendant, there is no denying the fact that 2nd Defendant was in charge of directing and administering the business of the 1st Defendant.  He was therefore at all material times acting as an officer of the 1st Defendant in the discharge of his duties.  So long as in the discharge of his duties he did not act ultra vires his mandate as managing director but carried on in the usual way the business of the 1st Defendant, all his acts are treated by law as being acts of the 1st Defendant itself.  Accordingly, if any of these acts are questioned in a court of law, it is the 1st Defendant that will be held to be liable for those acts to the same extent as if it were a natural person.  See Section 139 of the Companies Act (1963) Act 179.    
A limited liability company is said to have a corporate personality different from its members and directors.  In SALOMON v. SALOMON & CO LTD [1896] UKHL 1, a landmark United Kingdom company law case, the effect of the House of Lords' unanimous ruling was to uphold firmly the doctrine of corporate personality, as set out in the Companies Act 1862 of the United Kingdom, so that creditors of an insolvent company could not sue the company's shareholders to pay up outstanding debts.  This principle is reiterated in the local case of OWUSU v. R. N. THORNE LTD. AND ANOTHER [1966] GLR 90-92, where Justice Boison had this to say: 
“The theory of legal personality of corporations has its own practical problems but it is clear that a limited company or corporation has legal existence apart from the directors and members, and it is in a few recognised exceptions that the law lifts the "corporate veil," as it has been put, and looks to the directors and members personally.”   
It is relevant here to mention the Supreme Court case of MORKOR v KUMA (No. 1) [1999-2000] I GLR 721 – 740.  That case involved a sale transaction between the respondent and the first Defendant, a limited liability company.  The appellant had been sued jointly with the first Defendant for the only reason that she was the Chief Executive, majority shareholder and a director of the company.  On the issue of whether the appellant had been properly joined to the suit, the court held that  
“… the first Defendant was a corporate being with a capacity separate, independent and distinct from those constituting it or employed by it ... and the appellant would be a proper party to the suit only if a specific personal liability 
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were established against her or the veil of incorporation could be lifted to make her acts synonymous with those of the first Defendant or vice versa.  But the veil of incorporation could be lifted only in circumstances where in the light of the evidence the dictates of justice, public policy or the Companies Code, 1963 (Act 179) so required. Although it was impossible to formulate an exhaustive list of those circumstances, on the authorities, they included situations where it could be shown that the company had been established to further fraudulent activities or to avoid contractual liability... [T]hus in the absence of other factors driving the case. such as fraud, improper business conduct, … deliberate attempts at evasion of legal obligations, or other devises or willful misdeeds on the part of the appellant, the majority of the Court of Appeal erred in lifting the veil of incorporation upon those allegations and finding the appellant personally liable for the first Defendant's debts and a proper person to be sued with the first Defendant for the recovery of the debt owed the respondent by the first Defendant”.   
In the absence of any extenuating circumstances as mentioned in the MORKOR v KUMA (No. 1) case that would require the veil of incorporation to be lifted to make the acts of the 2nd Defendant herein synonymous with the acts of the 1st Defendant company, the 2nd Defendant is not a proper party to be joined to this suit.  The 2nd Defendant cannot therefore be held jointly liable with the 1st Defendant for the latter’s acts or inactions.  I therefore hold that the 2nd Defendant’s joinder to the suit is not proper.  
Unilateral Change and Abandonment Issue  
I shall resolve the following issues together in the light of the law and evidence, that is, the issues of: ? “whether the Defendants unilaterally changed the terms of Plaintiff’s employment and, if they did, whether that change amounted to wrongful dismissal of Plaintiff from his employment” and  ? “whether the Plaintiff abandoned his office by absenting himself from work for which reason he was subsequently dismissed”. 
The evidence of the record shows that the Plaintiff was employed in Classfam (GH) Limited (operating as Classfam Pharmacy) as Shop Manager by letter dated 30th March 2006 signed by 2nd Defendant as Managing Director, his employment to take effect from 2nd February, 2005.  See Exhibit “A”. By a letter dated 7th February 2007, Exhibit “1”, the Plaintiff purported to resign from Classfam (GH) Limited, which resignation was rejected by the company by a letter dated 8th February 2007, Exhibit “5” and signed by the 2nd Defendant in his capacity as the Managing Director.  By a letter dated 25th June, 2007, the Plaintiff applied for employment to Classic Herbal Centre, Exhibit “2”. In Exhibit “B” (which was also tendered by Defendants and marked in evidence as Exhibit “3”), Plaintiff was given an appointment letter by Classic Herbal Centre, while 
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by Exhibit “4”, Plaintiff was given an appointment letter by the 1st Defendant, Classfam (GH) Ltd.  Both Exhibits “3” and “4” bear the same date of 2nd July, 2007.  With the exception of the letterheads on which the letters were printed, the contents are the same and both were signed by the same person, the 2nd Defendant in his capacity as Managing Director of both businesses.  
Plaintiff’s application for employment, dated 25th June, 2007, Exhibit “2”, was addressed to Classic Herbal Centre.  Further, during re-examination by his Counsel on 26th February, 2016, the Plaintiff intimated to the court that he was only seeing Exhibit “4” for the first time in Court as he had never been given that appointment letter.  This evidence was not controverted by the Defendants and is therefore deemed to have been admitted by the Defendants.  See the case of TAKORADI FLOUR MILLS v. SAMIR FARIS, supra.  
The foregoing notwithstanding, from the evidence before me, I am of the opinion that the two (2) entities (Classic Herbal Centre and Classfam (GH) Limited) were operated by the 2nd Defendant and both were being used interchangeably by the Plaintiff and the 2nd Defendant in their relationship.  There is no disagreement as to whether there was an employee-employer relationship in this case and although the exhibits are unclear as to what entity is the employer, the Defendants did not contend that the Plaintiff brought the action against the wrong entity.  It is therefore my opinion that the Plaintiff was employed by Classfam (GH) Limited, the 1st Defendant herein.    
The essential terms of Plaintiff’s employment as spelt out in his letters of employment dated 30th March 2005 and 2nd July 2007 may be summarised as follows:  
(a) He was to be on probation for three (3) months during which time his employment was determinable by either party on giving the other party two weeks’ notice or payment in lieu of notice. (b) After probation, either party may determine the agreement at any time on giving the other party one month’s prior written notice.  (c) In the event of proven misconduct such as disobedience or misbehaviour or dishonesty on the part of the Plaintiff, he would be summarily dismissed or his services would be terminated forthwith and the company was at liberty to use its discretion to determine payment of any entitlements due the Plaintiff. (d) He was to be paid a salary in addition to bonus and annual increments based on management efficiency appraisal exercise, less normal monthly deductions such as social security, income tax. 
Exhibit “B” or “3” therefore was to regulate Plaintiff’s employment with the 1st Defendant and so constitutes Plaintiff’s contract of employment.  
By Exhibit “C”, a memo written on the letterhead of 1st Defendant by the 2nd Defendant to the Plaintiff, dated 1st January, 2010, a change in the salaried position of the Plaintiff from salary to a 
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commission on sales was confirmed to the Plaintiff.  Exhibit “C” stated in relevant terms as follows:  
“Dear Galton, This is just to reiterate what we discussed earlier at the general meeting that as part of the ongoing reorganization … your remuneration has been converted from salary to commission on sales”. (Emphasis added)  
From this memo, the decision to convert salaries to commission was taken at a general meeting, which meeting presumably some of the employees of the 1st Defendant must have attended.  This fact is corroborated by the testimony of the 2nd Defendant during cross-examination on 10th March, 2016 as follows:  
“Q: You changed his status from a salaried worker to someone who now earns commission on sales, is that not correct? A: Yes.  There was a memo to that effect. Q: So you would agree with me that after that memo he was no longer in employment with the 1st Defendant. A: That is not correct.  The memo was a follow up on the general meeting, not only with him but with the whole staff.  If he was not happy with the change of position, as a management staff, he could have communicated as such to the 1st Defendant.  But he never did.  He decided to vacate his post afterwards.”  
The question that I have to answer here, then, is whether or not this change in the Plaintiff’s employment condition was a unilateral act of the 1st Defendant?   
The basic conceptual framework for the individual employment relationship is provided by contract and governed by the fundamental principles of offer and acceptance.  The employer offers to employ a person under certain terms and conditions and if the person finds those terms acceptable, he accepts the employment.  Now, in the course of the employment, can the employer without the consent of the employee change the terms and conditions of the employee’s contract of employment?    
The Labour Act is silent on the conditions under which an employee’s terms and conditions can be changed.  At common law, however, the general rule is that an employer is not permitted to unilaterally amend the terms of an employment contract with an employee as this would constitute a breach of contract. See the case of ROBERTSON v. BRITISH GAS CORPN [1983] ICR 351. If he does, the employee can choose to accept the breach of the contract (thus terminating the 
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agreement), or accept the change, or remain in the employment but make it clear to the employer that he does not accept the change and claim for his original benefits.   The foregoing statement of the common law is reiterated at page 274 of the book LABOUR LAW by Simon Deakin and Gillian S. Morris, Butterworths, 1998 2d ed as follows:  
“The employer’s refusal to abide by the agreed contract terms is, then, almost invariably a repudiatory breach of contract, which the employee has the option to accept, bringing the contract to an end; or he may alternatively affirm the contract by remaining in employment.  This, in itself, does not amount to agreement to vary the contract terms in the employer’s favour.  In particular, if the employee makes his disagreement clear, there can be no possibility of variation.  The employee can remain in employment and claim wages or salary at the rate provided for in the contract; a claim in debt for accrued wages or in damages for the employer’s breach of contract, can be made, and a declaration granted with respect to the future performance of the contract”.   See also the case of MORRIS v. CH BAILEY LTD [1969] 2 LLOYD’S REP 215.   It is the position at common law, from the above, then, that silence by the employee in response to the change, may disentitle the employee from later denying the legality of the variation.  See Grogan J 'Workplace law' 6th ed (2001) at 36.  
The common law provides certain exceptions to the general rule stated earlier.  It further states that if the change does not amount to a material variation of the employee's terms and conditions of employment the employer may implement it unilaterally.  However, if the change is a material modification of the employment contract, such as an increase in working hours, an employer is obliged to obtain the employees' consent by persuading the employees to agree to such variation else he may be in breach of the employment contract.  See the South African case of A MAUCHE (PTY) LTD VA PRECISION TOOLS v NUMSA & 4 OTHERS, (1995) 161 ILl 655 (LAC) where Myburgh JA held that an employer's instruction to its workers to operate two machines instead of one did not constitute a unilateral variation of the terms and conditions of employment.   
The LABOUR LAW, ibid, at 275 further restates another relevant exception to the general rule as follows:  
“Moreover, if the employer can show that there is a good business reason for seeking to change the contract terms such as the need to enhance flexibility or efficiency of work organisation or even, simply, to make savings in response to a fall in external funding or in demand for its products, any dismissal flowing from the refusal of the employee to accept the new terms is likely to be potentially fair…”. 
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  And this principle was applied in the case of CATAMARAN CRUISERS LTD v. WILLIAMS [1994] IRLR 176.  
It is evident from the record that the decision of management of the 1st Defendant to vary the terms and conditions of employment of its staff was a strategy to improve the economic fortunes of the company.  I view the variation in the salaried position of the Plaintiff from salary to a commission on sales to be a material change in the employment contract of the Plaintiff.  Before implementing this decision, however, management of the 1st Defendant did not act unilaterally; it engaged the affected staff, including the Plaintiff, in discussions evidenced by the general meeting it held to discuss this issue at which the Plaintiff was present and participated in same.  Plaintiff was therefore aware of the decision that was taken to change the terms of his employment contract as well as the other staff members.  If the Plaintiff was not in favour of the said variation, he had a duty to communicate this to his employer.  
Assuming for a moment that Plaintiff was not given an opportunity to voice out any complaints he might have had at that general meeting regarding a change in his salaried position, he had ample opportunity to do so in writing when he was served with Exhibit “C”, the memo which reiterated the earlier decision taken by the management to change the terms of his employment contract.  It is evident from the record that the Plaintiff did not respond to this memo.  He simply walked away from his job and never came back.  By remaining silent and not responding to the decision of the management to vary the terms and conditions of his employment the Plaintiff is now disentitled from denying the legality of the variation.   
I find that the change in the terms and conditions of Plaintiff’s employment which changed Plaintiff’s position from a salaried employee to one earning commission on sales, assuming it was even a unilateral act of the 1st Defendant, was not an act that was done without consulting the affected employees.  It was also an act that was necessitated by the need of the 1st Defendant to remain economically viable.  In effect, the variation in the Plaintiff’s employment conditions did not amount to wrongful dismissal of Plaintiff from his employment by the 1st Defendant.  
It is the case of the Defendants that following this decision of the management of the 1st Defendant, Plaintiff absented himself from work without lawful permission starting from the month of December, 2009 and he failed to also respond to Exhibit “C”.  This action or inaction of the Plaintiff, according to the Defendants, led the 1st Defendant to terminate Plaintiff’s employment summarily effective 31st January, 2010 by letter dated 1st December, 2010.  See Exhibit “7”, which states in relevant part as follows: “Galton Nartey Dear Sir, Letter of dismissal 
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Management has noted with deep regret [sic] your absence from duty without lawful permission since December, 2009.  Management views your conduct as vacating your post or duty.  It therefore notifies you in the company’s decision to dismiss you according[sic], effective 31st January, 2010”.  
The question that arises here is whether, the Plaintiff, from the evidence before me, in fact absented himself from work starting from the period of December 2009 till the 1st Defendant issued the letter of dismissal dated 1st December,  2010, a period of over a year.  
Plaintiff testified on 23rd March, 2015, when he opened his case that on receiving Exhibit “C”, dated 1st January, 2010, he did not continue with the employment and rather took the matter to the Labour Commission.  Plaintiff by this testimony is therefore saying that he worked through the month of December, 2009 and his last day at work was 1st January, 2010 when he may have presumably been served with Exhibit “C”.  So, by his own admission, after 1st January, 2010 up till the effective date of his termination, 31st January 2010, Plaintiff did not report to work.   
Now, what about the month of December, 2009, did the Plaintiff work at all in that month as he claims? 
Below is a reproduction in part of the exchange between Counsel for the Defendants and the Plaintiff during cross-examination of the Plaintiff: 
“Q: Let’s go to 2009.  Take a look at Exhibit 7, dismissal letter … So you agree with me that because you absented yourself from work in December, 2009 you worked for 11 months that is from January to November. A: That is wrong.  I worked throughout the year. Q: Did you rebut the 1st Defendant’s assertion in Exhibit “7” that you absented yourself from work in December, 2009 by any reply to that letter? A: No, my Lord. Q: So, how do you want the Court to believe you that you worked in December, 2009 which is at variance with the 1st paragraph read in Exhibit “7”? A: I worked and I was paid at the end of December.” 
If the Plaintiff worked in December 2009, as he asserts, the onus is on him to prove this assertion.  See supra, the general rule that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof as applied in the cases of BANK OF WEST AFRICA LTD. v. ACKUN and ABABIO v. AKWASI III.   
I have reviewed the record before me and I find no evidence therein to support a finding that the Plaintiff worked and was paid in December, 2009.  Such evidence could have been in the form of his pay slip, a bank counter deposit slip or even the Plaintiff’s bank account statements covering 
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that period in question or the testimony of any of his former colleagues.  The only evidence I have is that of Plaintiff’s testimony which is not corroborated.  Being guided by the holding of the court in the leading case of MAJOLAGBE v. LARBI [1959] GLR 190 which supports the principle that when a party makes an averment in his pleading capable of proof in a positive way and the averment is denied, that averment can be sufficiently proved by testimony on oath supported by some corroborative evidence, I find that Plaintiff’s unsupported testimony that he worked in December 2009 is not believable.  See further the cases of KLUTSE v. NELSON [1965] GLR, 537, SC and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. 
I therefore find that on the evidence, the Plaintiff willfully and deliberately absented himself from work commencing December 2009 without any lawful excuse. 
According to his Lordship, Dr. Seth Twum, JSC, in the case of KOBEA AND OTHERS v. TEMA OIL REFINERY; AKOMEA-BOATENG AND OTHERS v. TEMA OIL REFINERY (CONSOLIDATED), [2003-2004] 2 SCGLR 1033 at 1039, 1040,  
“… an employer is legally entitled to terminate an employee’s contract of employment whenever he wishes and for whatever reasons, provided only that he gives due notice to the employee or pay him his wages in lieu of notice.  He does not even have to reveal his reason, much less to justify the termination.” 
Did the fact of absenting himself from work entitle the 1st Defendant to terminate the Plaintiff’s employment? 
The parties are agreed that the relationship between the Plaintiff and the Defendants regarding the employment of the Plaintiff was governed by Exhibit “B”, Plaintiff’s letter of appointment which evidenced the employment agreement between the parties.  Exhibit “B” makes provision for situations where any of the parties may terminate the employment agreement. It provides that after probation, either party may determine the agreement at any time on giving the other party one month’s prior written notice  
Having held earlier that Plaintiff willfully and deliberately absented himself from work commencing December 2009 without any lawful excuse, Plaintiff is in breach of the provisions of his employment contract.  The onus is therefore on the Plaintiff to prove that there were extenuating circumstances which if considered would justify his absence from work.  
From the record, I find that the only such circumstance alluded to by the Plaintiff is his testimony that he refused to report to work after he received Exhibit “C” and rather filed a complaint with the Labour Commission.  Is this a reasonable justification for absenting himself from work?  Plaintiff, however, did not provide the Court with any evidence setting out the nature of the claim he put before the Labour Commission.  This Court cannot therefore ascertain from the record 
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whether he even put in a claim for wrongful termination or unfair dismissal before the Labour Commission.  That notwithstanding, in my opinion, after filing the complaint, the Plaintiff should have continued with his employment while the Labour Commission was in the process of adjudicating his claims.  It was rather imprudent on the part of the Plaintiff, in my opinion, to neglect to communicate his complaints regarding the variation in his employment terms and conditions to his employer before running to the Labour Commission to file his complaint and thereafter, refuse to report for work not knowing how the Labour Commission’s adjudication would turn out.  
I therefore find that in the light of the terms of the Plaintiff’s employment contract, it was the Plaintiff who terminated his own employment contract.  Plaintiff, by his conduct in refusing to report to work in December, 2009 is deemed to have impliedly resigned from his job.  He effectively terminated his employment contract by his absence from work and the 1st Defendant, therefore, was not even required to issue Exhibit “7” to dismiss him.  
The Plaintiff asked for damages for unfair termination arising from an alleged breach of his employment contract.  Generally, a court is enjoined to award damages in the event of a breach of a contract with the objective of placing the injured party or the innocent party, as far as money can do it, in the position he would have been in had the breach not occurred.  See the case of ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD. [2 G.L.R] 623, S.C.  Having held that the termination of the contract of employment was lawful, breach of contract does not arise and Plaintiff is not entitled to any award of damages.  
SSNIT Issue  
I will now deal with the Plaintiff’s claim for social security contributions due him and unpaid by the Defendants to SSNIT.  
Under Section 70 of the Labour Act, an employer may, with the consent of the worker, deduct from the remuneration of the worker, any amount due from the worker in respect of contributions to any provident, pension, or other fund or scheme agreed to by the worker.  Additionally, by Section 3 of the National Pensions Act, an employer of an establishment is required to deduct from the salary of every worker in the establishment immediately at the end of the month, a worker’s contribution of an amount equal to five and half per centum of the worker’s salary for the period, irrespective of whether or not the salary is actually paid to the worker. 
It is the case of the Defendants that the 1st Defendant owed the Plaintiff only one (1) month of social security contribution in 2005 because although the Plaintiff was employed from February 2, 2005, he was on probation for 3 months up till April 2, 2005.  The submission by the Defendants is that an employee who is on probation is not entitled to social security contributions until his employment is confirmed after the probationary period.  
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Section 211 of the National Pensions Act defines a worker as follows:  
“worker” includes a person who is employed for salary in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets his salary, directly or indirectly from the employer, and any person employed by or through a contractor in or in connection with the normal work of the establishment, who is (a) employed in this country but not as a member of the crew of any ship; or (b) employed as a permanent resident of Ghana, (i) as a member of the crew of a ship, the owners of which have an office or agents in Ghana; or  (ii) outside Ghana but employed by an employer in Ghana. 
From the above, the position of the Defendants is not the correct position of the law. In respect of social security contributions, the National Pensions Act makes no such distinction between a worker on probation and one whose employment has been confirmed.  
I therefore hold that the 1st Defendant owes the Plaintiff four (4) months in social security contributions and not one (1) month as claimed by the Defendant in the year 2005. 
Secondly, the Plaintiff claims that the 1st Defendant owes him four (4) months social security contributions for the year 2009.  According to him, he worked for twelve (12) months in 2009 and Exhibit “D” shows payment of eight (8) months social security contributions. The Defendants however submit that the 1st Defendant owes only three (3) months because the Plaintiff worked for eleven (11) months and not twelve (12) months in 2009.  Having held earlier that there is no evidence that the Plaintiff worked in December 2009, I agree with the Defendants and hold that the 1st Defendant owes the Plaintiff three (3) months social security contributions. 
Leave Entitlement Issue 
I now turn my attention to the issue of whether the Plaintiff was denied leave and if so, for how long? 
It is Plaintiff’s claim that he was not granted leave for the period he worked with the 1st Defendant, which period will be deemed to commence from 2nd February, 2005 (See Exhibit “A”) till February, 2007 when the Plaintiff resigned from Classfam Pharmacy, resuming in July 2007 and ending in November, 2009 (as I have held earlier that the Plaintiff terminated his employment contract in the month of December, 2009) totaling a period of four (4) years and four (4) months.  The Defendants, of course, deny this allegation.  However, they provided the court with no evidence to corroborate their denial.  Indeed, by Section 27 (2) of the Labour Act, the 1st Defendant is required to keep a record showing, (a) the date of employment of each worker employed by the 
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employer and the duration of the annual leave to which the worker is entitled, (b) the dates on which the annual leave is taken by each worker, and (c) the remuneration received by each worker in respect of the annual leave.  And by Section 27(1) of the Labour Act, the 1st Defendant is further required to give each worker, as much as possible, notice of the date of commencement of the annual leave, at least thirty (30) days before the worker takes the leave. 
It stands to reason that all these reporting requirements on annual leave are the duty of the employer to perform.  The Defendants therefore by law are deemed to have this information in their possession and should have provided the court with same.  The onus of proof that the Plaintiff did take his annual leave during his employment is on the Defendants.  Simply denying the allegations of the Plaintiff that he never took his annual leave while in the employ of the 1st Defendant does not discharge the onus on the Defendants to prove that the 1st Defendant carried out its statutory duty under the Labour Act.  I will apply the principle in the case of MAJOLAGBE v. LARBI, supra, and find that the uncorroborated denials of the Defendants is not believable and rather it is more probable than not that the Plaintiff never took his annual leave while he was in the employ of the 1st Defendant.  By Section 30 of the Labour Act, the termination of the Plaintiff’s employment is not to affect his leave entitlements earned, if any. 
I find that Plaintiff is entitled to not less than fifteen (15) working days’ leave with full pay in each year that he worked for the 1st Defendant continuously by Section 20(1) of the Labour Act.  The law defines the expression “full pay” to mean the worker’s normal remuneration, without overtime payment, including the cash equivalent of a remuneration in kind.  See Section 20 (2) of the Labour Act.  The Plaintiff is therefore entitled to fifteen (15) working days’ full pay for the four (4) years and four (4) months that he worked for the 1st Defendant, as follows:   
1. Fifteen days’ full pay at ¢1,600,000.00, (equivalent to GH¢160) per month times the period of two (2) years from February 2005 to February, 2007, totalling GH¢160.00 2. Fifteen days’ full pay at GH¢300.00 per month times the period of two years (2) and four (4) months from July 2007 to November, 2009 totalling GH¢325.00 
The Plaintiff is therefore entitled to be paid GH¢ 485.00 in annual leave entitlements by the 1st Defendant. 
Negligence Issue  
I now turn my attention to the counterclaim filed by the Defendants and deal with the issue arising therefrom, as to whether there was any financial loss incurred by the Defendants and whether Plaintiff was liable for that loss. 
The elements of negligence are that a person who is claimed to have been negligent must owe a duty of care to the claimant, the person must have breached the duty of care that he owes to the 
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claimant, and the claimant must suffer damage as a result of the person’s breach of his duty of care.  
In ANN v. MERTON LONDON BOROUGH COUNCIL, (1978) AC 1004 at 1027, Lord Wilberforce laid down two critical tests for establishing a duty whenever there is a breach of the duty.  He said: “. . . the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist.  Rather the question has to be approached in two stages.  First, one has to ask whether, as between the alleged wrongdoer and the person who suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises.  Secondly, if the first question in answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty of the class of person to whom it is owed or the damage to which a breach of it may give rise.”  
Also, Section 11 of the Labour Act states the duties of workers as follows:  
“Without prejudice to the provisions of this Act, the duties of a worker in a contract of employment or collective agreement, include the duty to: (a) work conscientiously in the lawfully chosen occupation; (b) report for work regularly and punctually; (c) enhance productivity; (d) exercise due care in the execution of assigned work; (e) obey lawful instructions regarding the organisation and execution of the worker’s work; (f) take reasonable care for the safety and health of fellow workers; (g) protect the interests of the employer; and (h) take proper care of the property of the employer entrusted to the worker or under the immediate control of the worker.” 
It is thus obvious that the Plaintiff owed a duty of care to the 1st Defendant, thus the first element of the principle of negligence is settled. The second and third elements are what this court has been asked to determine. 
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The basic rule in any negligence claim is that he who avers must prove. See the cases of BANK OF WEST AFRICA LTD. v. ACKUN and ABABIO v. AKWASI III, supra.  CHARLESWORTH’S LAW OF NEGLIGENCE, 2nd ed., p. 23 states that: 
"The party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales and does not satisfy the court that it was occasioned by the negligence or default of the other party he cannot succeed."  It is up to the 1st Defendant, then, to prove, on the balance of probabilities, that the Plaintiff was negligent. The 1st Defendant must therefore prove that the Plaintiff breached his duty of care and this breach resulted in the loss in its stock to the value of GH¢ 12,349.27.    
Did the Defendants prove that the Plaintiff breached his duty of care? According to Alderman B, in BLYTH v. BIRMINGHAM WATERWORKS (1856) 11 EXCH. 781.  “Negligence is the omission to do something, which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do.”   
In general, it is required that in negligence cases, the defendant must measure up to an objective standard.  The question the court must ask is: “What should the reasonable person have done, or not done, in the circumstances of the case?” and not “What could the Defendant have done?” The legal standard is not dependent on the defendant but of “a man of ordinary prudence”, a man using “ordinary care and skill”, or a “hypothetical” man. See the following cases: VAUGHAN v. MENLOWE (1837) 3 BING NC 468 at475 per Tindal CJ, HEAVEN v. PENDER (1883) 11 QBD 503 at 507 per Brett MR., and KING v. PHILLIPS [1953] 1 QB 429 at 441; [1953] 1 ALL ER 617 at 623 per Denning L.J, CA.  
To prove that the Plaintiff breached his duty of care, the Defendants were required to submit evidence that showed the Plaintiff did not meet the objective test of a prudent and reasonable person in the performance of his duties.  From the record of proceedings, the Defendants did not adduce evidence to establish that the Plaintiff’s actions violated the objective test stated above. The Defendants instead chose to rely on the explanations the Plaintiff gave as the possible causes of the shortfall in the stock (See Exhibit “6”). The record of proceedings shows the following exchanges during the cross examination of the Plaintiff:   
“Q: You were appointed at all material time that you worked with the 1st Defendant as the shop manager there is no dispute about that. A: That is correct 
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Q: I will be right when I say that it was your duty to check all stocks for the 1st Defendant A: That is wrong Q: What does “stock” mean in relation to 1st Defendant? A: What I know stock refers to is products in a shop Q: What were the stocks of 1st Defendant? A: They were pharmaceutical products Q: At all material times how were these stocks checked to ensure that there are no shortages A: We compare the stock input in the computer against the physical stocks Q: Who does this comparison when you say “we compare” in your last answer? A: “We” here meaning the staff Q: You mean you and the staff who worked under yourself A: Not only me and the staff but administrative manager and the account officers Q: You agree with me that in 2009 an audit report established that GH¢ 12,349.27 was recorded as shortage in 1st Defendant’s stock A: It was not an audit but stock taking Q: Take a look at this letter, please tell the Court the reasons you yourself attributed to the shortage in that colossal fire in Exhibit 6.  Plaintiff reads paragraph 1…. Q: Obviously pilfering means stealing A: Yes Q: I am putting it to you that as a manager of the 1st Defendant shop these reasons you gave for the shortage should be laid at your door step A: Not at all Q: I am putting it to you that all of it must be put at your door step A: That is wrong…”  
Apart from the above, the Defendants did not provide any other evidence to support their claim that the Plaintiff was negligent and therefore should be liable for the shortfall in the stock. There is no evidence that they even investigated further the reasons that the Plaintiff gave for the possible cause of the shortfall to determine whether the reasons did in fact cause the said loss of stock.  In effect, the Defendants case was limited to at best unsubstantiated allegations of theft and mismanagement levelled against the Plaintiff in their pleadings.    
I find therefore that the Defendants’ case fails in so far as they failed to meet their burden to prove that the loss of stock was attributable to the Plaintiff.  The Defendants’ counterclaim therefore fails. 
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CONCLUSION  
In conclusion, I find that the alteration of the Plaintiff’s contract of employment by the Defendants did not amount to unfair termination of Plaintiff’s employment with the 1st Defendant.    
In the circumstances, the Plaintiff is not eligible to an award of damages for unfair termination of his employment.    
I find further that the 1st Defendant failed to pay seven (7) months of Social Security contributions on behalf of the Plaintiff. 
I find also that the Plaintiff is owed annual leave entitlements for the four (4) years and four (4) months that he worked for the Defendants, totaling GH¢ 485.00.  
On the Defendants’ counterclaim, I find that the Defendants failed to prove that the loss of stock in the amount of GH¢ 12,349.27 was as a result of the Plaintiff’s negligence.  
ORDER  
Accordingly, Plaintiff’s reliefs (3) and (4) as endorsed on his amended writ of summons are hereby granted.  Judgment is entered for Plaintiff on these reliefs.  Reliefs (1) and (2) of the Plaintiff’s amended writ of summons are dismissed.   1st Defendant is hereby ordered to pay the seven (7) months of social security contributions of the Plaintiff to SSNIT.  Further, let the 1st Defendant pay the sum GH¢ 485.00, being the annual leave entitlements due to the Plaintiff from the period of four (4) years and four (4) months that he worked for the Defendants, commencing February, 2005 till February, 2007 when the Plaintiff resigned from Classfam Pharmacy, and resuming in July 2007 and ending in November, 2009.  
I award costs assessed at GH¢ 5,000.00 in favour of the Plaintiff, against the 1st Defendant.       
                   (Sgd) ……………………………………………… JUSTICE JENNIFER ABENA DADZIE JUSTICE OF THE HIGH COURT (COMMERCIAL DIVISION) 
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COUNSEL:   Amb. R.O SOLOMON, ESQ., OF R.O. SOLOMON CONSULTING, ACCRA, FOR PLAINTIFF CHARLES K. BENTUM, ESQ., OF AZINYO CHAMBERS, ACCRA, FOR DEFENDANTS   
CASES REFERRED TO:  
ESSAH v. SOFO [1972] 2 GLR 301-304 TIMITIMI v. AMABEBE (1953) 14 W.A.C.A. 374 BANI v. MAERSK GHANA LIMITED [2011] 2 SCGLR, 800 TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882 TUTU v. GOGO [1969] CC, 76 BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398 ABABIO v. AKWASI III [1994-95] GHANA BAR REPORT, PART II, 74 SALOMON v. SALOMON & CO LTD [1896] UKHL 1 OWUSU v. R. N. THORNE LTD. AND ANOTHER [1966] GLR 90-92 MORKOR v KUMA (No. 1) [1999-2000] I GLR 721 – 740 ROBERTSON v. BRITISH GAS CORPN [1983] ICR 351 MORRIS v. CH BAILEY LTD [1969] 2 LLOYD’S REP 215. A MAUCHE (PTY) LTD VA PRECISION TOOLS v NUMSA & 4 OTHERS, (1995) 161 ILl 655 (LAC) CATAMARAN CRUISERS LTD v. WILLIAMS [1994] IRLR 176 MAJOLAGBE v. LARBI [1959] GLR 190 KLUTSE v. NELSON [1965] GLR, 537, SC  ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA KOBEA AND OTHERS v. TEMA OIL REFINERY; AKOMEA-BOATENG AND OTHERS v. TEMA OIL REFINERY (CONSOLIDATED), [2003-2004] 2 SCGLR 1033 ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD. [2 G.L.R] 623, S.C ANN v. MERTON LONDON BOROUGH COUNCIL, (1978) AC 1004 BLYTH v. BIRMINGHAM WATERWORKS (1856) 11 EXCH. 781 VAUGHAN v. MENLOWE (1837) 3 BING NC 468 HEAVEN v. PENDER (1883) 11 QBD 503 KING v. PHILLIPS [1953] 1 QB 429; [1953] 1 ALL ER 617 