Namboso v Board of Governors Motsekuoa High School (CIV/A 4 of 97) [1998] LSCA 40 (8 May 1998)

CIV/A/4/97 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: S A R AH N A M B O SO A P P E L L A NT and B O A RD OF G O V E R N O RS M O T S E K U OA H I GH S C H O OL R E S P O N D E NT J U D G M E N T D e l i v e r ed by t he H o n o u r a b le C h i ef Justice Mr J u s t i ce J. L. K h e o la on t he 8th d ay of M a y, 1 9 9 8. T h is is an a p p e al against the j u d g m e nt of the learned C h i ef M a g i s t r a te in w h i ch he d i s m i s s ed the appellant's c l a i ms in the m a in a nd in t he alternative w i th costs. In this action the appellant c l a i m ed f r om the r e s p o n d e nt a s um of M 1 0 , 0 0 0 - 00 b e i ng the r e m u n e r a t i on d ue to h er for service s he r e n d e r ed as a teacher at M o t s e k u oa H i gh C o u rt b e t w e en F e b r u a r y, 1 9 93 a nd D e c e m b e r, 1 9 9 4. It is c o m m on c a u se that d u r i ng the relevant p e r i od the appellant w as p a id an a m o u nt of M 2 , 5 0 0 - 00 w h i ch t he r e s p o n d e nt s a ys w as an a l l o w a n ce b e f o re h er contract w as formally a p p r o v ed by the Principal Secretary for E d u c a t i o n. It is c o m m on c a u se that the r e s p o n d e nt p u r p o r t ed to e n g a ge the appellant as a teacher at a salary of M l, 2 3 3 - 36 p er m o n t h. T he appellant p r o d u c ed a d o c u m e nt s he t e r m ed a contract of e m p l o y m e nt to s u p p o rt h er c l a im (Exhibit " A " ). E x h i b it " A" is a f o rm prescribed by R e g u l a t i on 5 ( 5) of T he T e a c h i ng R e g u l a t i o n s, 1 9 83 a nd a p p e a rs in the Sixth S c h e d u le to the said R e g u l a t i o n s. It reads as follows: "A teacher's contract shall be p r e p a r ed substantially in the f o rm prescribed in the Sixth or S e v e n th S c h e d u le subject to s u ch m o d i f i c a t i o ns as m ay be n e c e s s a ry in particular c i r c u m s t a n c e s, a nd shall be entered into before a s s u m p t i on of d u ty by the teacher." It is not in dispute that Exhibit " A" w as n ot p r e p a r ed substantially in the f o rm prescribed in the S e v e n th S c h e d u le b e c a u se the r e q u i r e m e nt that b o th the Educational Secretary a nd the Principal Secretary for E d u c a t i on did not a p p r o ve the purported contract of e m p l o y m e nt by affixing their signatures in the appropriate spaces p r o v i d ed on the prescribed f o r m. T he c r ux of the matter is w h e t h er a valid contract did c o me a b o ut w i t h o ut the a p p r o v al of b o th the Educational Secretary a nd the Principal Secretary for E d u c a t i o n? In my v i ew no valid contract w as created w i t h o ut the said approval. W h at is clear f r om Exhibit " A" is that the parties w ho w e re attempting to enter into a contract w e re the R o m an Catholic C h u r ch a nd the appellant. T he R o m an Catholic C h u r ch w as represented by R e v. Julius M a h u la w ho is the M a n a g er of the M o t s e k u oa H i gh S c h o o l. He untertook to p ay the salary of the appellant but this undertaking w as conditional b e c a u se it d e p e n d ed on the approval of the Principal Secretary for E d u c a t i on w ho w as to consider w h e t h er the appellant h ad the prescribed qualifications for the post she w as applying for. He w o u ld also h a ve to ascertain that the f u n ds to p r o v i de for a grant in aid w e re available. T he salaries of G o v e r n m e nt aided schools are paid by the G o v e r n m e nt f r om m o n i es allocated by Parliament for that p u r p o s e. R e g u l a t i on 5 (5) of T he T e a c h i ng Service Regulations, 1 9 86 provides that the contract shall be entered into before a s s u m p t i on of duty by the teacher. T he contract c a n n ot be regarded as c o m p l e te before the approval of the Principal Secretary for E d u c a t i on h as b e en obtained b e c a u se he is the o ne w ho is responsible for the p a y m e nt of the teachers' salaries in all G o v e r n m e nt aided schools. In the present case the appellant a s s u m ed duty before the contract h ad b e en properly entered into. It is unfortunate that the appellant w o r k ed for s u ch a long t i me without a salary. T he Principal Secretary is not a party to the present appeal a nd we do not k n ow w hy he withheld his approval. It m ay be that there w e re no f u n ds for s u ch a post or that he f o r m ed the opinion that the appellant w as not properly qualified. We shall n e v er k n ow the reason b e c a u se the appellant did not sue h i m. In his j u d g m e nt the learned C h i ef Magistrate c a me to the conclusion that M o t s e k u oa H i gh S c h o ol w as a G o v e r n m e nt Controlled S c h o o l. T h is is not correct. It is a grant aided school a nd its proprietor is the R o m an Catholic C h u r c h. This fact is clearly indicated in Exhibit " A ". T he R o m an Catholic C h u r ch w as represented by its duly authorised agent, R e v. Julius M a h u l a. T h e re is no d o u bt that M o t s e k u oa H i gh S c h o ol is the property of the R o m an Catholic C h u r ch a nd it receives grant in aid. I a g r ee w i th the learned C h i ef Magistrate that there w as no valid contract b e t w e en the appellant a nd the r e s p o n d e nt a nd that the dismissal of the action b a s ed on the alleged contract should be c o n f i r m ed on appeal. T he n e xt issue is that of unjust enrichment. Mr S o o k n a n a n, c o u n s el for the respondent, submitted that if the C o u rt finds e n r i c h m e nt t h en clearly it is the G o v e r n m e nt of L e s o t ho w h i ch is the funder of teachers w h i ch h as b e en enriched a nd n ot the respondent. He submitted that the l aw is as follows: If a principal is enriched as a result of a purported contract entered into on his b e h a lf by a p e r s on professing to h a ve authority to do so a nd he fails to ratify the unauthorised act, the principal will be liable to the extent he h as b e en enriched. He is n ot liable on the contract at all, but simply in t e r ms of the ordinary doctrine of unjust e n r i c h m e n t. He further referred to the case of R e id a nd o t h e rs v. W a r n er 1 9 07 T. S.961 at pp 9 7 4 - 9 75 w h e re Innes, C. J. said: "It s e e ms to me a s o u nd principle that w h e re an agent has, without authority, b o r r o w ed m o n ey on behalf of a principal, a nd w h e re that m o n ey h as b e en spent for the u se a nd benefit of the principal, the latter is liable to r e p ay it, unless he refuses to a c c e pt the benefit a nd takes steps to restore matters to their original position." T h e re are other cases in w h i ch the s a me principle w as stated. In K n o ll v. S. A. F l o o r i ng I n d u s t r i es L t d. 1 9 51 ( 1) S . A. 4 04 ( T . P . D .) T he h e a d n o te r e a ds as follows: " S e m b l e: If a p e r s o n, t h i n k i ng he w as authorised to do so, that he h ad b e en e n g a g ed by the o w n e r, b o na fide d o es w o rk to his h o u se by w h i ch he h as benefited - b e en enriched-in a certain a m o u nt it w o u ld be unjust for t he o w n er to be e n r i c h ed at the e x p e n se of the builder a nd the latter c o u ld in equity c l a im the a m o u nt by w h i ch t he o w n er h ad b e en enriched. It d o es n ot s e em essential in s u ch an action to b r i ng in the principles of n e g o t i o r um gestor. As the original contractor h ad failed to c o m p l e te t he building of a h o u se for the d e f e n d a n t, the latter contracted w i th h er h u s b a n d, to w h om s he w as m a r r i ed out of c o m m u n i ty of property a nd w ho w as a builder, to complete the house, w h i ch he did. Defendant's h u s b a nd h ad contracted with the plaintiff c o m p a ny to put in certain floors in regard to w h i ch it rendered h im an account. He failed to p ay a nd the plaintiff sued the defendant, w ho it discovered w as the building o w n er a nd o w n er of the house, claiming, inter alia, (9) "that the said w o rk a nd materials w e re d o ne a nd furnished by the plaintiff for the benefit of the defendant as n e g o t i o r um gestor on the instructions of her h u s b a n d, in the b o na fide belief that her said h u s b a nd w as the o w n er of the said property. (10) T he expenses incurred by the plaintiff aforesaid w e re necessary and/or useful and the said property of the defendant has b e en enhanced in value and the defendant has b e en unjustly enriched at the expense of the plaintiff." It appeared that defendant h ad m a de provision for the full cost of the building by a loan from a building society a nd that this h ad b e en exhausted by her h u s b a nd in building the house. A magistrate having found that the principles of n e g o t i o r um gestor applied a nd h a v i ng g i v en j u d g m e nt for the plaintiff, in an appeal, In order to s u c c e ed that plaintiff h ad to p r o ve that the defendant h ad b e en unjustly enriched at its e x p e n s e. Further, as she h ad not b e en so enriched, that the plaintiff w as not entitled to recover f r om her." As far as the l aw is c o n c e r n ed I entirely agree w i th M r. S o o k n a n a n. In the present case it is c o m m on cause that the appellant r e n d e r ed her services as a teacher at M o t s e k u oa H i gh S c h o ol for the entire relevant period. H er services w e re accepted by the proprietor of M o t s e k u oa H i gh S c h o o l. It s e e ms to me that it w as the proprietor of M o t s e k u oa H i gh S c h o ol w ho benefited f r om the services of the appellant in the sense that the children w ho c a me to its school got tuition free of c h a r ge at the e x p e n se of the appellant. I do not agree with the s u b m i s s i on that it w as the G o v e r n m e nt of L e s o t ho w h i ch w as enriched b e c a u se education is its responsibility. T h at is not correct. M o t s e k u oa H i gh S c h o ol is a grant-aided school a nd that m e a ns it receives s o me financial aid f r om p u b l ic f u n d s. A id is h e lp g i v en to t he proprietor of a s c h o ol in the f o rm of salaries to the teachers at a grant-aided s c h o o l. T h at is t he r e a s on w hy the contract m u st be a p p r o v ed by t he Principal Secretary for E d u c a t i on b e f o re it c an be r e g a r d ed as valid. It is the Principal Secretary w ho m u st s ee that there are f u n ds available to p ay the grant-in-aid. He m u st c h e ck t he b u d g et a nd m a ke s u re that no teacher shall a s s u me d u ty b e f o re there is a s s u r a n ce that h e / s he shall be p a id i n a s m u ch as his/her salary is p r o v i d ed for in t he b u d g e t. I h a ve already f o u nd that it is t he r e s p o n d e nt w h i ch w as unjustly e n r i c h e d. In a ny c a se t he p u r p o r t ed contract E x h i b it " A" w as entered into by t he appellant a nd t he R o m an C a t h o l ic C h u r ch a nd t he G o v e r n m e nt of L e s o t ho w as n ot a party to it. E v en after t he Principal Secretary for E d u c a t i on h as a p p r o v ed t he contract by affixing his signature to it he d o es n ot m a ke t he G o v e r n m e nt of L e s o t ho a p a r ty to s u ch a contract. Be that as it m a y, t he doctrine of unjust e n r i c h m e nt d o es n ot d e p e nd on the validity or invalidity of t he contract. In the result, the a p p e al is u p h e ld w i th costs. J. L. K H E O LA C H I EF J U S T I CE 8th M A Y, 1998 F or Appellant F or R e s p o n d e nt - M r. S o o k n a n an - M r. Z. M da 10