Manda (Suing on his behalf & on behalf of and representing all members of Love Aquarius Band v City of Blantyre (Civil Cause 1131 of 1990) [1992] MWHC 34 (2 April 1992)

QR ker [49% IN THE HIGH COURT OF MALAWL see PRENCTPAL REGISTRY 5 ie ese) pr bereretesermccon ieee sae aoa ee aR CIVIL CAUSE NO. TI3L OF £9905. Tenn ne ce aan ae ate ne ence a ex . IMMANUEL, MANDA, SUING ON HIS) BEHALF AND ON BEHALE OF AND REPRESENTING . | Co Al MEMBERS OF LOVE AQUARINIS BAND 2. .......... PLATNTIFDS be AND CLTY OF BLANTYRE ...cccccccccceeeeceueeees eee DEPENDANT ORAT uNYOLO, J. | Chikopa/Kapanda, Counsel for the Plaintiffs Mbendera, Counsel for the Defendant Gausi (Mrs), Court Reporter Kaundama, Official Interpreter JUDGMENT The plaintiffs claim damages Crom the Defendant Cor breach of contract. The brie facts of the matter are these the plaintiffs j are members of a musical band known as Love Aquarius Band. The defendant on the other hand needs ne introduction. in 1984 the defendant Council's management decided to offer hotel and : catering services and took over the rupning of what used to be known as Hotel Chisakalime in Limbe. Prior to that time the : Department of Hotels & Tourism ran the Hotel and the plaiwe ters bli played Chere as a resident band. When the defendant Look over the Hotel it also took over the band and a Final apreement was earns coneluded between the parties. The plaintif£€s were however not able to produce the agreement they signed with the defendant in this respect. All the same they said that it was an agreement for one year but renewable and that the agreement was indeed renewed every year thereafter. The plaintiffs tendered in evidence Exhibit Pl which is the agreement the parties executed for the period Ist April, 1988 to 31st March, 1989. They said Chat the agreements Sor the years in between were oral. Perhaps I should mention that Exhibit PI was actually sipned NQQ gnly on’Gth Decewber, 1988 i.e. seme nine inmonths afeer the agreement was renewed. The plaintiff's continued playing at the Motel wo to .dgist- Mareh, 1989 and- they carried om up tu: 4th October 1989 when they received a letter, Exhibit P2, addressed fo them by the defendant's chief exccutive. The letter is dated 2nd October, 1989 and reads: ear Gent remen TERMINATION OF CONTRACT Since we did not revise your contract with City Council on its expiry and you are now playing without a valid one, I wish to advise you of a resolution of Policy and Resources Committee that your future contracts with effect from Ist October 1989 be between yourselves and the Hotel Chisakalime. Therefore conditions of your contract will be negotiated by the Commercial Manager and Hotel Management as they may deem proper. Yours faithfully, Signed Re¢. MiEtTGHINSON TOWNS CLERK) CHLEF EXECUTIVE" The plaintiffs denied the contract was not renewed after 31st March, 1989 as contended by the Town Clerk in the letter just reproduced. According to Chem a new contract was clubby agreed orally and all that remained to be done was to reduce fhe same to writing. The, plaintiffs referred the Court -to Exhibit P2, the contract ‘Lor the year-Ist April, 1988 toy 31st March 1989, which was agreed in April but actually reduced to writing and executed only in December, as I have already indicated. They said that similarly they were content with the verbal agreement they reached with the defendant and believed that the written agreement would come Later on. I found the letter to be somewhat confusing. What however came out from the total evidence was that at the time the letter was written the defendant had put the Hotel up for sale. * Indeed it appears that a buyer had already been found then and all that remained was the winding up. Be that as it may it was Che plaintiffs’ ease that as advised tm the said letter they went to see the defendant's commercial manager and discussed the matter with him. They, said that in the end it~ was agreed the band should continue to play at the Hotel in the mean time and that the band did indeed play up to the month of Neo February, 1990 when the new owners of the Hotel told thew Lo © leave the premises as they did not want. a band. The pli bot it ts complied and left. The plaintiff{s ciaim in this action firsthy the sum of--< K9,000.00 being notice pay and secondly the sum of K6,000.00 fer leave pay. The plaintiffs: testified that the defendant was obliged on the termination of the agreement to give them three months notice in writing or pay them three months salary in lieu. The plaintiffs contended further that under the terms of the said agreement they were entitled to thirty days leave annually and they said they had not taken leave for two years at the time they were sent away from the Hotel. The plaintiffs referred. to Exhibit P2, the agreement Tor the year 1988/89, in support of their case. They said that they were at the material time on a sdiary of K3,000. Q0 a waeth, henés the. amount’s whey are claiming in the action. Further the plaintiff€s said that they addressed a letter to the defendant claiming these monies and that the defendant's Town Clerk responded saying that they had no valid claim as the agreement between the parties had expired. The plaintiff€s did not however give up. They went be sce the Town Clerk and later petitioned the Mayor and had an audience with him. Subsequently, on 9th June 1990, the Town Clerk wrote a letter, Exhibit P5, to the plaintiffs advising that after considering the matter further the defendant hac decided to make an ex Bracia payment in the sum of K2,500.00 and the plaintiffs were asked whether they accepted the offer. see Exhibit P8. The plaintiffs wrote back accepting the offer and the K2,500.00 was paid to them on 12th July, [990..° The plaintiffs did take this sum into account and subtracted re from the gross sum claimed in their original statement of claim. They, however, left this sum out in their amended statement of claim; it being contended that the same had nething to de with the monies due-te them in terms of the contract. I think that I should in fairness to’ learned counsel on both sides acknowledge at this juncture the ingenious and weil- balanced argument they presented to the Court in this case. Mr. Mbendera urged the Court to Find that the pladntitts: contract of employment with the defendant expired.on 31st March’ 1989 and that the same was not renewed. Learned counsel submitted that the letter, Exhibit P2 which | have reproduced above, makes this clear. Mr. Mbendera appreciabed that the plaintiffs continued to play at the Hotel after the 31st March but submitted that nevertheless this did not create a new term but only a “"holding-over" just Like a tenant would hold over after a tenancy had expired. Mr. Chikopa, on the other hand, urged the Court to find that the contract was renewed. He referred the Court to the evidence given oy PWI and PW2. > Te Wie we recalled that: ikiwas the e¢idence of tie two witnesses that they agreed a new contréct with the defendant after: 31st March and, that all that remained to be doae was to reduce the tte "Nagas ee Cemene te teri ting lator day. I have piven the mallor anxious consideration... For my Pre Chere Gan be Ler he doubt the 1988/89 contract reflected im Exbi bit Pp2 expired by ef fluciorn Of time on 31s¢ Maréeh, 1989, However T am inclined to believe the plaintiff€s that the coniratt e4. renewed for the year bI89/ 90.) I am moved by several Considerations. First |] Pind it difficult to accepl that the: defendant: would have’ kept the plaintiffs playtime at. the fore) for six long months afler the 1988/89 contract had expired and continue to pay them al] those months if the contract had not been renewed, I-must also say Chat both PWL anc PW2 impressed me as truthful witnesses. They fave their evidence jin a forthright manner. Further the Pratneitts” case. was Supported by what happened to the 1988/89 contract where, as | have eartlicr imflicated, the Cont rack there WIS cone luded in April, 1988 bul was reduced to writ ing and executed by the parties only in December. Ac was contended by the two witnesses the same happened in resapcet of the Succeeding contract; the parties agreed to renew it and let? the actual writing of the formal agreement to be done Later on. Part briefly, I am satisfied that the contract was renewed; to mor from 1st Aptil, 1969 to Stet March, 1990, and [ find accordingly. It was the plaintiffs! ense that the renewed contract was subject toa the same Cerms as the preceding contract reflected Se eoxhi bkE P20: The plaintiffs contended that they were entitled, on Cermination of the contract, to 3 months notice or 3 months Pay in lieu of such notice. The plaintiffs emerped uashaken on this point and I am Satisfied that these terms did indeed apply to the Venewed contract. . ladeed there would, in my view, be nothing odd about such a Cerm in a contract of this nature. Tt was then submitted on behalf of the defendant that the plaintiffs were given sufficient notice by the letter of 2nd October 1989, Exhibit P2, in that the plaintiffs continued Co work up to January, 1990. With the greatest Despect 1. am unable to share in this view. To my mi nd, Exhibit P2 did net seek to give the Plaintiffs notice of termination of the new contract or, indeed, of the preceding contract woieb, AS Fave Said, expired on its own by effluxion of time. Rather the letter was only a declaration Chat in the oxriew of the defendant there was no contract subsisting between the parties after sist Maren, 1989 and Che letter then went on to advise the plaintif€fs’ ro negotiate one with the Hotel Management, whatever Chat meant, Readiss. ta short, IT am unable Co assent to the eHeeMent on Chis poine, : Next Mr. Mbendera submitted that even if the defendant was in breach the Plaintiffs did per all the same suffer any loss in that they continued to be employed at the Hotel and at the same Salary. The Plaintif€fs'! evidence, ae 7 understood Le was that upon receipt of Exhibit p2 Chey thought they had no alternative but to see the defendant's Commercial Manager as advised in the said better. ¢ The plaintiffs said that they were again simply told to continue playing at the Hotel and that the oat WW AMAA RE si SOS ob ae te Formal details of the agreement would be dealt with Beavers” it was their evidence that. they continued playing at the Hotel up to February, 1990 when, without any prior noticc, the new owners of the Hotel told them to leave. As 1 understand the - Facts the defendant was 4 party Co this new arrangement. cos this as it may, I have already found that a new contract was agreed between the plaintiffs and the defendant For the period fst April, 1989 #0 3lst March, 1990 and the central issue is that the plaintiffs were entitled to be given 3 months notice if the defendant wanted to terminate ‘he satd contract of i> chomo3 monthe pay ip Lieu of such notice. Indeed this particular issue does nol appear to have. been raised by the defendant in its defence. What | have said here is therefore simply academic, 1 think. With regard Co the question of pay in Ticu at heave of wish to say that the plaintiffs were firm they were entitled to dine MONCH LeOMe, BYeTY Yee They also emerged unshaken that chey did not take their Feave im 1988/89 and also in 1989/1990. The claim for two months pay, in these circumstances , would appear to me coud, Aceordie-To Kehi bit P2 such leave was Lo be taken in January but 1 think Chat this was simply an administrative ar rangement. The matter does not, however, end there. Mr. Mbendera has raised two other fesuen. Learned eouneel. refered the Court to the K2, 500.00 which IL have said the defendant paid lo the plaintiffs ia stulys 1990. Counse k contended that it was agreed between the parties. the said sum was paid in full and Final satisfaction and discharge of any claim the plaintiffs might have had against the defendant. Referring to evidence what happened on this point was tnis. On 21st June, 1990 Che plaintiffs wrote to the Mayor of the defendant Council complaining about the manner in which the Town Clerk was handling their issuc- The jetter, bxhibit p5, reads - NYQUR WORSHIP THI: MAYOR, We write to you pretering bo the discussion we had with the Town Clerk today on the Piet of june 1990 concerning about our money which the Council owes US. Your Worship, the Town Clerk offered to give us K2,500 (Two Thousand and five nundred Kwacha) which he didn't explain why he offered us that money for. As: far as we're concerned the Council is supposed to pay US K12.,000.00 (Twelve thousand Kwacha) for three months notice and one month leave grant. Therefore, we appeal to you, Your Worship, to.help us on this matter and at the same time we're asking for your help to make the Fown Clerk and the Council) understand the whole Nee d ner situation. This matter has been going on for a very long time and as far as we know we should've been claiming a 9 month-pay plus damages since the Council has never written us any letter of dismisal up to now which means we're still working For them. Please, Your Worship, would you kindly consider us as soon as possible. Yours faithfully, LOVE AQUARLUS" The response to the letter came through a letter from the Clerk. The letter bears the date of 9th June, 1990 lag eit clear this was a slip; the correct date was 9th July, 1990 i think, pertinent to reprodace the letter, IL reads = Pe ol 1S BAND CONTRACT Your Letter of 21 June 1990 was considered by ‘the Council's Policy and Resources Committee on 30 Jume: The contract of employment expired on 6 December es 1989 ancl was not rerewed. There is .no notice clause, and, as you were previously advised any further contract should have been with the Hotel Chisakalime, in which event this would have transferred to the new owners. Tn the event, no such cont tact was entered: into. The Committee therefore considered that iL.ts obligation to the band expired on G December 1989 and that no claim could be entertained. However, it approved the offer previously made to you of an ex gratia payment of K2500. This payment must be accepted within 14 Gays of the date of this letter, Following which it will — lapse and will not be renewed. Yours, Laithbul ly Signed Re Ge PASICHINGON TOWN CLERK AND CHILE RZ GCurivis™ j Fhe plaintifts responded on roth July, LOI ta a very short letter accepting Che elfer. other better reads. Medc: Sai Answering to your: letter which you wrote Us On the 9th of July 1990 we have thought of accepling the offer. Yours Faithfully, LOVE AQUARTUS BAND i. MANDA" According to the plaintiffs the Tewn Clerk had carlier told them, when they went to sce him, that tbe K2,500.00 was a token of the defendant Cotiicii’s appreciation for the services. the 4 band rendered -from 1984. They said that they accepted the payment in that Jight. There was tendered in evidence a payment voucher, Exhibit P7, which was raised in respect of the “a2 500000 20 7 ite rarrakive-colunm.of the said payment voucher states that the payment was a, I quate: "Final payment on ihe termination of contract". It is however the uncont roverted avidence of the plaivtitts that the said payment voucher was not passed to them on the day they got the K2,500.00 from the accounts department nor did they know anything about it. It is also to be noted that the payment voucher wis net egigned by the plaimbilis Or any ot them, . On these fects, fam unable to hold this payment voucher against the plaintiffs. What we are therefore Left with is Exhibit PS 1 +e. tlic letter in which the defendant offered to pay the plaintiffs the eam wf K2, 500.008 Tt: is significant to note that the money was offered as an ex gratia payment. Bul of course the letter must be read with the plaintiffs' letter dated 21st June 1990 which, as I have already observed, was a letter the plaintiffs wrote to the Mayor. IT have aqid in that letter. the plaintiffs complained that they did not understand why the Town Clerk was insisting on the payment of K2,500.00 only instead of the full sum they were claiming under the contract. The issue raised here is difficult. and obscure and [| must confess it has given me most anxious moments in the course of which my opinion wavered. However on very anxious consideration of the matter | have come to be-of Lhe opin tem Ehat’ if a party interds Co offer a payment in full and final satisfaction and discharge of liability such party must state so clearly and unequivocally. The defendant in the present case should have gone further to state clearly that the offer meant to represent a full ancl Final satisfaction of the monies claimed by the plaintitys iM tis matter... As- | have. earipver pointed out.. such does not stem to be the position here. The plaintifts said that they did not understand what the Town Clerk was talking about in relation to the K2,500.00. ,At one point they understood him as saying Lhe ae money would be paid as a Coker ab apprectat ion fer Lhe ont standing services they rendered during, the G years or sot hey played at the Wore... ALP it all it appears Chat there was no consensus ad idem between the parties on this point. Tt is also to be noted that courts’ have shown a measure at. pekuctance Fo uphold alleged settiements or discharges where no legal advice was sought in accepting the same. See (41) Lovell] v. Williams (7938) G28 P41 LoRep- 949 (cited in Bingbams Mokor Claims, oth ldition, p-690; (b) McCluskey v Catholic Life Gencral | AC (NI) Rep. (1930); p< 39 and te) Biggin & Co. TUT. ye Permanite Ltd (1951) 2 Al] E. R. 1o{,. In this lattes casc Tord Just fee Somervell at p- 196 observed - "The law, ii my opinton, ene Our ges . reasonable settlements, pa rticularly ie & 2 where, as~here st rict proof woutel be a very expensive matter. ~The question, in my opinion, is: what evidence fs necessary bo establish reasonableness? f thtime SE isi melevant to prove elrat the settlement was made under legal advice." Lord Justice Sine beton enicd wl pee 199); "rt gs a matter of consideration that the settiement was arrived at under advise, the more 59, a5 the party settling may be quite uncertain whether he can recover anything age vnst someone". ny imithe casé al hand there is no cv ;dencee to suggest that? the discharge or compromise relied on by the defendant was, upon legal advice. fi) ino ard om foatlt to accept the submission that the K2,5900.00 pa yment amounted to a satel ement or | compromise. | ndeed tt is significant that inspite of the payment the plaintiffs immediately went to law. Finally Lt was urged that Ghie plaintiffs’ claim was etatute barred by virtue of section, 161 of the local Government (Urban Areas) Act in that the matters complained of by the plaintif ts did not .arise within ene year of the date “the action was commenced. This was another Gardian knot po: ENS Case: section tol provides that court actions against a Local Authority (like the defendant? here? mast oc brought within one year ‘of the time when the causes of such acbion aATOsE- ifs common case Lhe action in the presene: Cause commenced in this Court, on 26th November, 1990. The eéentral question fer the determination of the Court fe Chere Lore when did the plaintiffs cause of action arise. the words ‘cause of action’ have been held to mean "every fact uve it world be. neces sayy for the 7 ert aes 1 Lapse dethede Eg Me, AED EA plaintiff to prove, if traversed, to support his right to, the judgment of the court, per Lord Esher M. R. in Read v. Brown (1888)22°. QBD 128,. 131. A more: recent case is Letang v. Cooper {19651 QB 222'where Diplock:'L. J. at 242 defined the words as meaning. simply}a factual situation the existence of which entitles one person to obtain’ from the court a remedy against ‘another person": In the present case what we would be looking at areithe factsspertaining Co the breach of the contract between the plaintiffs-and the defendant. Under paragraph 6 of the plaintifts” amended statement of claim it is suggested the breach occurred on 2nd October, 1989. It will be recalled this was the date the defendant wrote the letter Exhibit P2 stating that no contract subsisted between the parties at that juncture and went on to advise the plaintiffs to negotiate one with the Hotel. management. But as I have earlier pointed out the defendant's position is a mix-up on this point. in Exhibit PB the letter dated, 9th June, 1990 which I have reproduced above, the defendant stated the contract expired on 6th December, 1989 and that its obligation to the plaintiffs expired on that date. Clearly this statement contradicted the defendant's own position reflected in Exhibit P2. Anyway, if the contract expired on 6th Decembev, 1989 and the defendant failed to give the plaintiffs the requisite notice or pay in Lieu then the cause of action arose on that date. However as I have earlier found the contract practically continued up to about January / February 1990 when the plaintiffs were told to leave the Hotel. On these facts the contention that the action was not commenced within-one year;from the Cime when the cause of action arose must, fail. In my view the plaintiffs have proved their case and I, find the defendant liable. i Boi ee “T now turn’ to the question of damages. I am satisfied on the evidence that the plaintiffs' claim is made out. They were entitled to K9,000.00 representing % months pay in lieu of notice and a further K6,000.00 representing pay in lieu of leave for 2 years. The total comes -CO £i5,000.00 butt think that the K2,500.00 already paid by the defendant must be taken into account. There was also a claim of interest but this was not substantiated. I therefore enter judgment for the plaintiffs for the sum of K12,500.00 less whatever tax is payable. i { \ { . Costs of the proceedings to the plaintiffs. PRONOUNCED in open Court this Ind day of April, 1992 at Blantyre. me L. E. Ynyolo