Liberti v Kassim (Civil Case No. 265 of 1949 (Mombasa)) [1950] EACA 4 (1 January 1950)

## ORIGINAL CIVIL

#### Before de LESTANG, J.

# GIVON BATTISTA LIBERTI, Plaintiff

# KASSAM JIVRAJ, Defendant

## Civil Case No. 265 of 1949 (Mombasa)

Contract of employment-Effect of words "subject to your being issued the necessary Immigration permit"—Effect of antedating contract—Liability for deposit to Immigration authorities—Repudiation of contract—Section 39 Indian Contract Act.

In January, 1949, the defendant invited the plaintiff to Mombasa to discuss the possibility of employing him on a farm at Uganda. Terms of proposed employment were discussed, the farm was visited and on 10th March an agree-<br>ment was drawn up and signed on 6th February, 1950, containing terms of employment for three years, "subject to plaintiff being issued the necessary Immigration permit". On 24th July the plaintiff was informed that the permit was approved though it was subject to a deposit of Sh. 3.000. Differences arose and the plaintiff contended he was entitled to salary as from 6th February and that the defendant had to make the deposit. It was admitted that the agreement was antedated by three weeks.

Held (18-4-51).—(1) The plaintiff's employment was to commence\_from\_the\_issue\_of\_the-entry--permit.

(2) The fact that the document was antedated does not support the contention of the plaintiff that he was to be paid from the date of the document.

(3) The liability of the defendant to pay salary was to arise only on the happening of a contingency.

(4) Although the plaintiff made known his intention not to go to Uganda unless his salary was paid for the anterior period, yet the defendant did not repudiate the contract altogether (as it was open to him to do); it was not the plaintiff's refusal to go to Uganda which brought the contract to an end but the defendant's insistence on the plaintiff's immigration deposit.

(5) That on the facts it was the duty of the defendant to make the necessary immigration deposit; his refusal to do so constitutes a breach of contract of employment.

(6) As regards damages claimed for travelling and expenses in connexion with obtaining the permit, the claim is based on an implied promise to re-imburse; the claim does not flow directly from the breach of contract.

(7) As regards loss of salary the claim was allowed from the date of the permit up till the time of the plaintiff's new employment, less earning power of Sh. 400 per month.

$R.$ P. Cleasby for the plaintiff.

N. M. Budhdeo for the defendant.

JUDGMENT.—In this suit the plaintiff seeks to recover damages for an alleged breach of contract of employment in the following circumstances:-

The plaintiff is an Italian who in January, 1949, resided in Italian Somaliland. The defendant is a business man and landowner in East Africa and usually resides in Mombasa. In January, 1949, the defendant invited the plaintiff to come to Mombasa with a view to discussing the possibility of employing him to manage his farm in Uganda. The plaintiff accepted the defendant's invitation and embarked on the defendant's ship in Mogadishu on 6th February, 1949. The ship sailed on 7th February, and arrived on 10th February. While in Mombasa

$\mathbf{v}$ .

the plaintiff stayed at the Palace Hotel of which the defendant is part owner because the defendant had reserved accommodation for him there. In the course of the next few days the plaintiff and defendant discussed the terms of the proposed employment of the plaintiff. They visited the farm together in Uganda and subsequently on 10th March, a written agreement was drawn up and signed by the parties in these terms:-

"This is to confirm, subject to your being issued the necessary Immigration Permit, your appointment with me in my employ to work on my farm at Uganda.

(1) You will be required to work at my farm at Busiro in the Province of Buganda and to generally looking after the Estate.

(2) You will be paid a salary of $£50$ per month during your employment with me. You will also be provided with free housing, but the food will be on your account.

(3) Your employment with me would be for a period of three years.

(4) The profit realised from the farm will be given to you at 4 per cent of the net profit in addition to your salary.

The agreement is dated $6.2$ ."

There were many difficulties and great delay in obtaining a permit for the plaintiff but eventually on 24th July the plaintiff was informed by telegram that the Immigration Authorities had approved the issue of a Temporary Employment Pass for him to work with the defendant on his farm for three years. The issue of this pass was, however, subject to a deposit being made either in cash or by bond in the sum of Sh. 3,000. It was then that serious differences arose between the parties, the plaintiff contending that he was entitled to salary as from 6th February and that it was for the defendant to make the immigration deposit while the defendant contended that the plaintiff's salary was to start from the date of his employment on the farm and that it was for him to provide the required cash or security for the permit.

I should like to say at this stage that I consider the plaintiff a more reliable witness than the defendant. The plaintiff struck me as being a meticulous person who notwithstanding his poor knowledge of English endeavoured to put everything before the Court whether it was in his favour or not. He kept a diary of the whole incident and with its aid was able to testify in great detail as to what took place. The defendant on the other hand did not strike me as being as candid and frank as the plaintiff. He prevaricated and contradicted himself on several occasions. Another matter which shows the defendant's lack of frankness is that his defence as pleaded differs widely from his evidence. By his defence the defendant had denied entering into any binding contract with the plaintiff but in his evidence he had to admit that he had done so in the terms of the agreement which I have already read out. He contended, however, that this agreement had been repudiated by the plaintiff on 10th March. Again this defence was not pleaded.

The first question which $I$ have to decide in this case is whether under the agreement dated 6th February the plaintiff was entitled to salary at the rate of $£50$ per month as from 6th February.

The plaintiff says that this agreement was really a reduction in writing of the verbal agreement arrived at between the defendant and himself two or three days after his arrival in Mombasa. He says that it was prepared in the defendant's office in Mombasa on 10th March after a telephone message from Uganda stating that the Immigration Authorities required both proof that the plaintiff was an agricultural expert and the written contract of employment with the defendant. The plaintiff says that he asked for a written agreement then under the pretext that it was necessary in order to enable him to obtain the required certificates. but really that he did so for the purpose of holding something in writing from the defendant in order to secure his position. The defendant says that the agreement was prepared in Kampala in the office of one Pirali Abdulla on 25th February to be attached to the application for the entry permit for the plaintiff and that it was dated 6th February in order "to impress on the Immigration Officer that we had met in Mogadishu and had arranged these things there and had brought him (plaintiff) from Mogadishu". The incident which occurred during the examination-in-chief of the defendant concerning this document illustrates his unreliability. He was questioned about a Mombasa address alleged to be on the document. He replied without hesitation that it was put in because his firm was at Mombasa. In fact no Mombasa address is written on the document at all. To return to the defendant's version he says that on 10th March as a result of the telephone message from Uganda referred to by the plaintiff, the plaintiff left for Mogadishu for good and that the agreement was terminated by mutual consent.

I accept the plaintiff's version in preference to that of the defendant's for two main reasons. Firstly, because the plaintiff as I have already said is a more reliable witness and secondly, because in the form of application for the permit the following statement, "If his entry in Uganda is approved we shall enter into contract with him. A copy will be sent," was specially typed in the place of the printed statement which read as follows: "A contract has been entered into between myself/ourselves and the said...... in which etc."

If as the defendant says the agreement was made at the same time as the application for the permit and both documents were left with Pirali Abdulla it is impossible to understand why the printed passage was specially amended. Be that as it may what is clear is that the written agreement (Ex. 2) was made about three weeks after 6th February and yet it was dated 6th February. In these circumstances the plaintiff contends that the only reason for antedating the agreement was because his employment was to operate from 6th February which was the day on which he had embarked in Mogadishu for Mombasa. The defendant says that the agreement was dated 6th February in order to suggest that it had been made on the day the plaintiff left Mogadishu in order to expedite the issue of the permit.

In deciding when the plaintiff's employment was to commence it is necessary to consider the agreement itself in the light of the surrounding circumstances and to exclude any oral evidence that may have been given by the parties on this point because oral evidence is not admissible to vary or add to the terms of a written agreement. If one looks at the written agreement by itself-leaving aside for the moment the date it bears—I think that one cannot avoid the conclusion that it means that the plaintiff's employment was to commence from the issue of the entry permit. My reasons for coming to this conclusion are briefly (1) that the employment is made expressly subject to the issue of the necessary Immigration permit, (2) that the plaintiff is to work on the defendant's farm in Uganda which he could not do until the immigration permit had been issued, (3) that the employment is to be for three years meaning presumably three years on the farm and not three years from the time the plaintiff left Mogadishu, (4) that the agreement taken as a whole contemplates payment for work on the farm with provision for free housing and share in profits and could not be implemented until the entry permit had been issued, (5) that it does not expressly state that it is to take effect on the date it bears. Now does the simple fact that this document was antedated to the date the plaintiff embarked for Mombasa have the effect of altering its primary meaning to the extent alleged by the plaintiff? I am unable to agree with this contention. If the plaintiff was to receive salary from 6.2, who was to pay for his hotel in Mombasa? If, as the plaintiff alleges the defendant was to pay then the plaintiff would be in effect receiving far greater salary than $£50$ per month.

In my view taking the agreement as a whole together with the surrounding circumstances the employment of the plaintiff was conditional on a permit being issued and the liability of the defendant to pay salary to the plaintiff was to arise only on the happening of that contingency. That being so it is contended by Mr. Budhdeo for the defendant that the plaintiff repudiated the contract by wrongly claiming salary for the period anterior to the issue of the permit and saying that unless his salary was paid he would not go to Uganda. Again this is a matter which was not pleaded at all but the plaintiff did so in cross-examination, "I say before I leave Mombasa I must have money. I do not want to go to Kampala without my salary." The question of repudiation of contract is dealt with in section 39 of the Indian Contract Act which reads as follows: -

"When a party to a contract has refused to perform, or disabled himself from performing his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance."

This section really codifies the English law on the subject which is dealt with in Halsbury's Laws of England, Hailsham Edition, Vol. 7, at page 229, in these $words: -$

"The repudiation of the contract by one party does not of itself discharge the contract, but the other party has the option of treating the contract as at an end, or of waiting until the time for performance has arrived, before making any claim for breach of contract. The party to whom the right of election falls must signify his election to rescind in an unqualified manner and with every reasonable dispatch. If he elects to wait, he remains liable to perform his part of the contract, and enables the party in default not only to perform the contract notwithstanding his previous repudiation of it, but to take advantage of any supervening circumstance which would justify him in declining to perform it."

Applying this principle to the facts of this case it may very well be that when the plaintiff made known his intention not to go to Uganda unless his salary was paid it was open then to the defendant to determine the contract altogether. Unfortunately the defendant did not do that. He never purported to treat the contract as at an end and in the ensuing correspondence which took place between the parties' advocates the plaintiff demanded to proceed to the farm and perform his part of the agreement while the defendant adopted the attitude that he would not employ the plaintiff until he obtained a permit to enter Uganda. In the circumstances it was not the plaintiff's refusal to go to Uganda which brought the contract to an end but the defendant's insistence on the Plaintiff's making the necessary immigration deposit. Consequently, the defendant's contention that the contract was repudiated by the plaintiff cannot succeed.

I now come to the next question which is who was to make the deposit for the entry permit? The plaintiff or the defendant? There is on this point as on many other points great conflict of evidence but here again I accept the plaintiff's version as being the correct one. In the first place I think that it would be most unusual for an employer to expect his employee to pay the immigration deposit except in exceptional cases. Secondly, I find support for the plaintiff's version in the application for the permit itself signed by the defendant in which he undertook to give the required security. I also believe the evidence of the plaintiff that the defendant and his sons repeatedly told him that they would do everything in connexion with his entry permit that the defendant even offered to deposit with the Immigration Officer in Kampala £600 immediately if that could facilitate the issue of a permit to the plaintiff. I cannot for one moment believe that the plaintiff, however anxious he might have been to obtain employment with the defendant, would have agreed to deposit such a large sum in order to secure that employment. I, therefore, find that it was for the defendant to give the required security for the plaintiff's entry permit into Uganda and that his refusal to do so resulting in his failure to employ the plaintiff constitutes a breach of the contract of employment on his part.

I must now deal with the question of damages. Damages are claimed under two main heads as follows: -

- (1) Expenses incurred by the plaintiff in travelling to Mogadishu four times and to Nairobi twice for the purpose of obtaining the entry permit and/or in connexion with the defendant's business, also cost of telegrams and telephone calls. Altogether about Sh. 2,230. - (2) Loss of salary and bonus and estimated value of free housing.

As regards the claim under head, 1 it would appear from the pleadings and the evidence of the plaintiff that it is based on an implied promise by the defendant to reimburse him of these expenses. If this is so the claim is not one for damages in the proper sense of that term at all as it does not flow directly from the breach of contract of employment but is something collateral to it. In any case with the exception of one trip to Mogadishu which the plaintiff undertook for the purpose of booking a passage on a banana ship for Italy at the request of the defendant and a journey to Kampala with the defendant I am not satisfied that the other voyages and journeys were undertaken at the request of the defendant at all. In my view the plaintiff made these journeys and incurred these expenses solely for the purpose of securing his entry permit and although the defendant was prepared to assist him and did in fact so do he did not accept liability for those expenses. The expenses properly chargeable to defendant in a proper claim amount to Sh. 535 but the plaintiff admitted receiving from defendant Sh. 450 being a balance of Sh. 85. As I have already said, however, the claim does not lie in these proceedings.

As regards the second head of damages the plaintiff testified that he was unable to find work until December, 1950, since when he has been managing a banana plantation and earning approximately Sh. 2,500 per month. It has therefore been conceded that he can only claim loss of salary for the period between August, 1949, and December, 1950, i.e. 16 months. I have no reason to disbelieve the plaintiff that he remained unemployed for 16 months but I do think that he must have been able to earn something during that time in work of a temporary nature if he had wanted to. For that reason I am prepared to accept the plaintiff's own estimate of his earning power as stated in his claim for damages, i.e. Sh. 400 per month and I think that in ascertaining the plaintiff's loss of wages it is fair to deduct Sh. 400 in respect of each month. $\ldots$

| | | | | | | | $\cdots$ | | |---------------------------------------------------------------------------------------------------|--|--|--|--|--|--|----------|--| | <table><tbody>Difference9,600</tbody></table> | | | | | | | | | | Less 16 months at Sh. 400 per month $\qquad \qquad \dots \qquad \qquad \dots \qquad \qquad 6,400$ | | | | | | | | | | 16 months wages at Sh. 1,000 per month $\ldots$ $\ldots$ 16,000 | | | | | | | | | | | | | | | | | Sh. | |

$\overline{a}$

$\mathcal{L}_{\mathcal{A}}$

It is contended that in order to ascertain the damages it is necessary to set off against the actual loss of wages the difference by which the plaintiff's present salary exceeds his salary of Sh. 1,000 under the broken contract. I do not think that this can be done, especially so in the circumstances of this case, as the nature and extent of the plaintiff's present employment and his responsibility thereunder may be far greater than under the broken contract. Besides there is nothing to show how long the plaintiff will remain in his present employment and whether his present salary is worth more in purchasing power than his salary under the contract.

The plaintiff has also claimed damages for loss of bonus and for free housing. As regards these claims I need only say that there is no evidence either that the plaintiff would have earned any bonus in the course of his contract of employment or as to the value of the free housing to which he was entitled. There is nothing to show that he incurred any loss under these two items and I do not find them proved.

I assess the damages at Sh. 9,600 (nine thousand, six hundred shillings) and give judgment for the plaintiff for that amount with costs.