Sivaswamy v Agason Motors Ltd (Civil Cause 1037 of 1994) [1995] MWHCCiv 26 (8 February 1995)

...-,-, IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1037 OF 1994 BETWEEN: SN S IVASWAMY . . . . . . . . . PLAINTIFF and AGASON MOTORS LIMITED . . . . . . . . . . . . . . . . . . . . . . . . . . . . DEFENDANT CORAM: Tembo, Acting J Kaphale, Counsel for the Plctintiff Ng'ombe, Counsel for the De fendant Fukundo, Official Interpreter Namangwiyo, Recording Offic er J U D G M E N T to employ that verbal contract, and in a contract of employment which was This case concerns verbally concluded between the plaintiff and the defendant the on 21st September, 1993. By the Defendant had offered plaintiff had verbally accepted the Defendant Company as a Workshop Manager. The plaintiff is a national of India who was at that time in the country on The anothe r contract of employment with some other firm. verbal agreement had a e£endant inorder for both parties written contract) by th ~ the commencement of thereto to sig n it. the date of these so. Meanwhile , damages agreeme nt of employment, as follows: the plaintiff is claiming special and general . the verbal the defendant had not yet done the plaintiff to be employed the defendant for the breach of p roceedings in writing reduced to be (into from By t ., ,. ,·•. ..... ,. "tt. > ( (a) (b) (c) (d) ( e) ( f) . s a 1 ai:-y -from 1st March 199 4 his March, 1994, to be assessed; to 23rd Kl3,S00.00 being unpaid notice pay; Kl0,100.00 being unpaid school fees; loss of salary for 7 months from 23rd March, 1994 to 20th October, 1994 and /or general damages. Kl.0,038.00 being the value for the plaintiff's wife from Malawi to India; of air fares and daughter ,'· <:.t ·r r<::4,000.00 unlawfu l ejection fro m the house two months before damages being for ,t 2/ .... • ; , .. r·, r;- 1- . 1-- ·' - - (g) ( h) (i} ( j ) (k) (1) time (calculated as two months ren ta ls); loss of use o f months; home furniture for two K600 . 00, being value of fuel months; f or three value of services o f boy for three months to be assessed ; a guard an d h ouse K300.00 being v a lu e of water months; for two Kl00.00 beirig value of water months; for two dam a ges for loss of use of the c ar to be ass e ssed; and (m) Costs . as in in Th e term employment Imm i g r ation Offi c e I n that connection , in September, 1993, an a pp lication for a the def e ndant Company, The e v i d e nce of the plaintiff was to the effect th at h e had a j oine d Ag ason Mo t ors Limited Wor k s ho p Marr~ger; and that by then all the terms o f cont ract that f or hi s c a paci t y, had been verba 11 y cone 1 uded be.tween him a n d the re gar ding de f e nd an t , with only one exception. notice , or notice pay, upon termination of the cont ract had n o t b een a greed. It was also the evidence of the pl ai ntiff that th e d efendant had employed the plaintiff on e x p atr iate the plaintiff exhibited a copy t e r ms . o f temporary employment perm i t which a pp l ic at io n had jointl y been made to the Immigration Office by th e p la intiff and the defendant. It was marked Exh . Pl. T he a p p lic ation had b e en received by the Immigration Office Ther ea fter, on 5t h July, 1993, and it was so stamp dated. the a t e mpo rar y employment p e rmit stamp dated 29th December , 1 993, whic h have to b e valid re tr os p e c tiveeffect fr o m 24th Jun e , 1993, and fo r a p er iod of two years until 23rd June, 1995. A co py of t he t em por ary employment permit was exhibited an d ma rked Ex h . P2. The plaintiff further st a ted that, as evid e n ce d b y p aragr ap h 11 (a) of Exh. Pl , he had verbally agreed with the d efen dan t that the annual salary for the post of a Wor kshop Ma nage r to be payable to the plaintiff would be K54, 000. 00. The o th er terms likew i se agreed upon between the pl ain tiff and t h e de fendant were as follows: that the defendant would Free provid e elect ric it y; for of fic ial a nd personal use of the plaintiff, free serv ic es of a wa tchm an ; a houseboy, medical facilities; air pass age s at the c omm en ce,ment and end of the p lain tif f and llis family from and to India; a gr atuit y of 2 5 % o f t h e pl a intiff's salary at the end of the cont ract free furnished house; company car with the plaintiff a a free water ; the contract period for Imm i gration Office the plain ti ff issued f u el made had had th e to to to · 3 / .•.. - - and fuel K200.00 per month. the verbal employment contract, that upon his commencing work as period; and , education allowance for the dependant children It was also the evidence of the of the plaintiff in Malawi. a Workshop plaintiff Manager, pursuant to the defendant wrote to him on 2nd March, 1994, respecting the extent of water, electricity and fuel allowances. By that letter, marked Exh. PB, the defendant had placed limitations on those allowances as follows: water, maximum allowance per allowance per month month KS0.00, Electricity, maximum Kl00.00 in to be met by the those limitations had expenditure · beyond plaintiff p~rsonally. The plaintiff informed the Court that he only had fees thedefendant did not pay. Instead, the plaintiff had paid all the school fees in the aggregate amount of Kl0,100.00 as evidenced by in evidence marked Exh. PS for an amount of K3350. 00, Exh. P6 for an amount of K3, 000. 00 and Exh. P7 for an amount of K3, 750. 00. three The terms during which academic the plaintiff's child was to a private secondary school known as Lilongwe admitted Private School in the 1993/94 academic year. The plaintiff has told the Court that the defendant did not reimburse the plaintiff of those expenses at all. three payments represent school receipts and cheques one child at school whose tendered excess school fees for the Any the joined contract expiration of the plaintiff's the plaintiff had that ,firm and before The plaintiff told the Court that the contract of employment had been negotiated between him and the defendant in 1993, of upon employment with another firm then operating here in Malawi. The plaintiff had served on expatriate terms even with that earlier fir~. So, at the end of the plaintiff's employment the with the plaintiff was required to travel to defendant Company, India for which he was given return air tickets by the defendant stibject to the plaintiff reimbursing the defendant of the expenses involved in the purchase of the tickets for the plaintiff's travel from Malawi to India at that time. The total cost of all the air tickets was KlB, 593. 00. This amount the for plaintiff and his family from India to Malawi as well as a the plaintiff only from one way ticket for the travel of Malawi that it was not part of the responsibility of the defendant to have provided an · air ticket to the plaintiff for him to travel It was for that reason from Malawi to India in June, 1993. that the plaintiff further told the Court that he still owed the defendant an amount in respect of the price of the air ticket which the plaintiff used when he travelled to India from Malawi in June, 1993. to India. The plaintiff conceded before me the cost included the air tickets for The plaintiff also told the Court that upon noticing that the defendant had continued to show no intention of reducing the verbal contract in writing, he on several occasions in writing sought appointments to discuss the same and other issues related thereto with the Managing Director of the 4 I .... - - to and employment; no avail. Eventually, defendant, but the plaint iff received a letter from the defendant dated 23rd March, 199 4, which was marked Ex h. P9 b y which the defendant termin at e d thereun der the plaintiff's cont r act of issued to the plaintiff a cheque for salaries of the mo nt hs o f March and April, 1994. The defendant had by that let ter i nformed the plaintiff that the plaintiff had gratuitou sly in b e en paid the salary for the month of April, 1994, as, the view of the defendant, the plaintiff ought to have given to the defendant notice of termination since, the defen dant alleg e d, it was the plaintiff who had earlier on expre ssed The plaintiff fur ther h i s told the Court that when he went to c a s h the said chequ e at the Ba nk, he noticed that the defendant had already i ssued instructi o ns the for chequ e and accordingly the cheque was not cashed as eviden ced b y Exh. PlO and Exh. Pll. intention to leav e employment. stopping payment of the Bank to fo r and then issues between in order two thirds o f the defendant incumbent upon the contract as him the need the defendant would inter alia, he coul d number of outstanding It was a written contract, The pl a intiff also tol d t he Court that, as a matter of fact, he had not himself given notice to the defendant for the the it was alleged by termination of defendant . The plaintiff, by his letter dated 4th Febr uary, 1994, Exh. Pl3, had merely sought an amicable settlemen t of a the a important of which was de fend a nt, mos t wr itten contract. The plaintiff so much wanted a wr itten be c ontract that, a uthorised to effect remittances of part of his earning s to that upon India. have signing s ubmitted a copy of the same to a Commercial Bank o f the p laintif f notifying the Bank of the fact that the plain tiff co uld effect remittances abroad, in particular India, of any the plaintiff's s alary a mount not exceeding a nd further that the plaintiff was in possession of a v alid temporary employment permit from the Immigration Author ities in that regard. Besides that, the plaintiff also want ed to s eek a refund from the defendant of expenses the plai n t iff incurred in respect of school fees of his depe ndant h ad The r,lai ntiff ch i ld, then, with the plaintiff in Malawi. f u r ther told the court that he - had not accepted the one contract giv en by month notice for the termination of the the view of the pl a intiff that the It wa s t he defendant. c ircumstances due of r e gardbeing had to the position which had been occupi ed by an appropr iate the plaintiff noti ce therefor would have been a period of three mon ths. Accordingly, the plaintiff is now claiming damages the refor amount of Kl3,500.00 being unpaid notice pay. in letter of Co nsequent upon t e rmination, Exh. P9, the plaintiff was allowed to rema in in the Company hous e until May , 1994, when he was ej ected t her e from, as same being d amages for unlawful ejection from ca lculat e d as two months rent. The defendant had not is sued to the plaintiff air tickets for the plaintiff's return to the plaintiff claims K4,000.00 the defendant company, the defendant's receipt of the house, employment for which contract, his the and in 5 / . . . . - - The the the from same then. refund of Consequentl y, the plaintif f ; o f Kl0, 038. 00 . t og ether wi t h hi s India at is cla i ming total pri c e a 7 month s salary, c a lculat ed Ind i a the famil y , plai n t i ff purchased air tick e ts fo r hi s wife and ch ild to travel The t o the plai n t i ff defe ndan t . This amount is evidenced by a copy of an in voice dated 24 June, 1994, from SK Ylinks Tr ave l Bureau on which was e ndo r sed cash receipt No. 7259 of th e same date for the invoice was Exhibited and marked a mo unt Kl 0, 038. 00. Ex h . Pl 2 . Besides these claims, the plaintiff has ma de all of th e c laims set out above, namely, refund of Kl0, 100. 00 bei ng un pa id schoo l fe e s by the defendant for the dep endant from chi ld o f 23r d Ma rch to 20th Oc tober, 1994 or general damag es, it being th e view of the plaintif f that upon termination of the emp l oy me nt contract, the the plaint iff to pla intiff air ticket for the inter v e ntion Ind ia until on 20th October, 1994, upon of th e the def end a nt to do so. It is the case of the plainti ff that those month s he could not seek any other empl oyment d u r in g immed iately in th e country, but on the other hand had he travel le d to India; in March or April, he could ha v e found The pl a i ntiff emp lo y ment; hence he now makes that claim. also c l a ims dam a ges f o r two mo nt hs , K600.00 be i ng v alue of fuel for three months , value for ser vices of a guard and house boy for three months . The plaint if f also cla i ms K300.00 being value of electrici ty for three months and Kl00.00 b e ing va lue of water two mon th s . He also claim s damages for loss of use of a ca r and the cos t s for this action. the defendant did not the · return of Imm i gr a tion Authorities, who had loss of use of furniture for then compell ed issue f o r t o Mr th e and the f or job . told that court Pa njw a ni also th e defendant. the defendant, an application for jointly been made by himself , th e plaintiff, He is Mr P an j wani was the onl y witn e ss o f It wa s his the Ma n a g i ng Director of the defen d ant Company. tes tim o n y that the plaintiff had a pplied for a job in the defe n d ant compan y and that the plaintiff had been gr anted the the neg o ti at i ons for the contract of e mployment in that re gard, He also informed the court had bee n c onducted in Mala wi. tem porary that that purpos e emp lo y ment permit had on beha l f of i ndeed conseq uent upon that a p plication b e ing made the Immig ration a uth or it ie s temporary emplo yment two docum e nts hereby refe r red to are th e same per mi t . doc um e nt s and which were exhi b i te d by · the p laintiff, then, marked Exh. Pl an d Exh. P2 . Mr Panjwani further agreed with the plaintiff th at the con tr a ct of employment under consi d eration in this ca se had the bee n the defe n d ant wo~ld put it in writing ; and f urther that al l co n d i t ion s had been a greed except the one relating to n otice upo n te rmination of th e contract. The terms and cond itions of em p lo y ment were the same as tho s e ment i oned to the court by th e p l aintiff. However, Mr Panjwani, told the Cour t that the or al co ntract was not reduced to writing by him b e cause of th e su bs equent c onduct of the plainti f f. issued to the plaint i ff a concluded verba l ly with In the vi e w of the plainti f f condition referre d to by that that the The 6 / •••• - - had the Panjwani, then made termination of the plaintiff the contract by 1994, marked Exh. D2, was exhibited by Mr numerous inconsistent demands which rendered the defendant unable to reduce the oral contract in writing, and eventually resulted the defendant. A in letter of the plaintiff dated 7 Janauary, 1994, marked Exh. Dl was relied upon by the defendant in that regard. The defendant, thereby, maintained that the termination of the contract, on supposedly one month notice, was not wrongful as the oral contract had not settled the question of notice. To support the view that a notice period was not agreed upon, a letter of the plaintiff's legal practitioners dated the 4th May, defendant. The defendant made a counter claim for a refund the air tickets from bought for in June, 1993 , namely, KlB,593.00. The defendant maintained that half the value thereof, gave an amount of K9,296.50 to be refunded to the defendant the defendant by conceded to be ticket refunded to him by the plaintiff ought to be less the amount for the unused ticket at the value of Kl,621.00 in respect of the plaintiff's son who did not travel from India or at all, see Exh. D4, therefor. The value of that ticket had been refunded the Travel tickets had been bought. The net from which Bureau result is the that defendant the sum of K7,675.50t. the value of the plaintiff and his family the plaintiff of half the plaintiff ought the defendant by However, the the plaintiff. the value of to pay back to Malawi the fact that the to to I that he who asserts must prove The foregoing is the evidence adduced by both parties to this action with and by which I should determine the claims remind myself of made by the parties against each other. the evidential rule the The effect of that rule is claims and not he who denies. issue that the obligation of satisfying the Court on an rests upon the issue. On the standard of proof required for that purpose, the verdict if his the plaintiff should be entitled evidence establishes a preponderance of probability in his favour, that is to say that, if he persuades me of the fact that his version of the facts is more probable than that of the defendant in respect of any or all of the claims he has the made against counter claim made against him by the defendant. the party who asserts the affirmative of the defendant or in respect of indeed to the defendant. The first issue I should determine is one relating to the question whether the evidence adduced discloses that a valid employment contract had been concluded between the plaint i ff and for thedefendant urged me to find that there was no employment contract concluded as there was so much in dispute that the parties had to settle such disputes by discussions sought by the plaintiff ·. Counsel for the defendant further submitted that even if I find that there was a valid oral contract of employment concluded between the parties such contract wou l d be invalid for lack of compliance with the provisions of section 12 (1) (e) of the Employment Act, which provisions, submission, In his counsel 7 / . • • • - - It wa s t he defe n da n t , that the y had verba l l y conclud e d between c oun se l sub mi t t e d , requir e d that contracts of e mployment of t h e k i nd to whi c h that of the pla i ntiff related ought to be made in writi n g and bear s i g n at u res of parties th ereto. To beg in wi t h le t me observe t ha t as between t h e par t ies, t h us t he questio n as to wh e th er the p l a intiff and the re was ever made a n oral co n tra c t o f e mplo y ment bet ween indeed the c l e a r eviden ce of the m wa s not disp u ted . them bo t h partie s a n e mployment contract, by whi c h th e pl a intiff was of fe r ed a job by the a work shop offe r to work ma n a ger a nd for which to s al a ry of K54 ,0 00.00 with p lai n tiff an pay seve r a l the pla intiff by f u lly fur ni s h ed c o mpany ho u s e, a watchm a n, house boy , water, elec tri c ity and a compan y car , to men t ion but a few of those be n e fits. I refer to Ch i tty On Contracts, 25th Ed . at pag es 1 , 25,157 and pa r agraphs 1 , 41 and 261, respect i vel y , on the p h e nomena of contract , as f ollows : the defend a nt and f or t h e defe n d a nt had fur t her agree d p l aintiff had accepted t he d e fe n d ant of fre e free service s of f ringe benefits th e defendant the provisio n c o mpany as i n cludinq a n n u al the t h e t o i f is t h a t) (namel y i mpeded con t ract a promise or set of "A prom ises whichthe l aw wi l l e n force . The ma i n ju stifi cation for leg al en f orce me n t of pro mises is an econ omic com merce woul d be t rade and one seriousl y t he law permitted a pro misor to break hi s p r o mise without , at least, pl acing to pay co mpe n sati o n for him under an ob l iga t ion Ther e may the loss occasioned by his default . . . the be said agreem ent, cre a tion of c ontractual The normal test for det e rmining whether t he pa rties is t o a s k wh et h er an offer have reached ag r ee men t has b e en ma de by o n e par t y and a c cepted b y the o t her. t hree basic esse n tials a intention and consideration . co n tract (n a mely ) to be to an t hi s questio n, the co u rts ap ply an I n ans werin g objec t ive test : if the par t ies have t o all ou t ward appearances agreed i n the sa me ter ms upo n th e sa me s u bject - ma tter , neither can ge n erally d e n y that t o agree .... The trad i tio n al def inition he intende d the requ irement of consider a t i on co n c e ntrat e s on and that accordingly s tate s is either that he may to s ome detrime n t give value ) or so me be n efit to the promi sor ( in that h e ma y receive value) .... Th e gene r al rule of Engli s h l aw is t h at c ontracts can be mad e quite i nformally : n o wri t i n g or othe r for m i s nece ssary th a t considera ti on th e promisee "so me thi ng of value " must b e giv en ( i n ... all formal requir e me nts in l aw of c ontract a r e contained i n s t at u tes which deal with s pecific contracts . " . t he Sec tion 3 of d efi ne s "contract " as fo l l ow s : the Employm e nt Contr a ct Act (Cap. 55:02) 8 / . - - "m e an s a c o nt rac t o f i n wr i tin g , whe th e r a n em p l oyee ent e r s i n cl u de a does n o t in a c co r da n ce with e x pr e ss o r e mploy me n t , whether or al o r i mplied, b y which th e serv ic e of a n empl oye r but cont ract o f app renti c eshi p made th e "A pp r e nt ices hip Act . " . i s t o a n in to Fo r th e · a n d th a t fac t ( wh o t oo . j o b, pay , p a id, whi c h The re a nnu a l I hold ex a c tl y d i d wh a t p l ai ntif f there was t he e mp l oyee th e p l a intif f in s t a nt ca s e , The o f f er was for a sa l ary of KS 4,000.00 . a n offer ma d e b y o n e p a r ty, n a me l y (who is the de f e n da nt in thi s cas e) and th e pa rti es h ad v erba ll y ex c han ged th e a In t h e la w must e n for c e. set of pro mi s e s wh i ch the Indeed th e of fer e mployer in thi s was acce p ted by i n the p ost of a workshop c as e ) . wa s accep t ed . ma nager t he work don e or se rvices rendere d consider a tio n i n h i s capac it y as a Works hop Ma na ger, the by the plai nti ff , the d e f e ndant pro mis e d frin g e plaintiff Both p a rti es to t he oral e mpl oy ment be n ef i ts se tout a b o v e . in co n t r act t h e a ccordan c e with t h e I t here o f , co nd u c t wh i ch cons ti tu t ed Thus, condu c t will r ever t c ontract according ofbo th pa rties in i mple me nting th e or a l th ey must ha v e thereb y to its t er ms , eviden c ed t h e f a ct th a t th eir or a l me ant b u si n ess or in o ther wo rds , rel ation s . l eg al contrac t th e evi d e n ce a dduce d b efore me Accordingly , clear l y es t ablis h e s a vali d oral employ ment c ontr ac t bet ween th e pl a intif f a nd th e d ef endant. the d efendant that I As should hold th a t sec t ion 12 t h e Em p l oy me n t Ac t rende r ed tha t or a l co nt r a c t vo i d , o n a c co unt th a t u pon it s co n c lu s i on in t herefo r e , n o t s ign ed by th e p a rtie s the reto, I wri ti ng and , have this t o say . that se cti o n are as f o llows: the oth er t e rm s of t h a t co nt rac t, exc e pt for t he s ubmi ss i o n of co uns e l ( 1) the b r eac h judg me nt . there wa s c on c lud e d t o which t h e Th e p r ov isi o n s o f sub seq uentl y not c o ntr ac t was fo r ( e) o f t hey h ad b y I do f in d int e n ded p romi se d r e du ced e nt er la t er e ac h i nt o thi s th a t th a t and th e in t o t o " Eve r y ord in a r i l y rate Gov er n ment b y s ign ed re g i s te re d co nt rac t f o r r es i de nt e mp l oy me n t in Ma la wi who do n o t pa y l e vi ed by a Di s t ric t of perso n s n o t a co un c il un der Loc al be a n d s h a l l atte s t ed ( Di s trict Cou n cils ) Act, the the re t o , p a rt ies i n a cc ord a n ce with sec ti o n 1 3 ." . t o wh ic h that th e d efe nd a nt h ad s ubmit ted th a t t o sec ti o n the c o n tract o f Co un sel fo r the ca te g o r y o f e mploy ment und e r co n s id e r a ti o n be lo n ged th e e mplo y ment con tr acts of Emplo ym e nt Act t h e ap plie s ; co ntr act to be in writing a nd to bear th e s igna t ur es of th e par ti es th e r e to wer e mand a tor y ; a n d that the contr act un der c ons i dera ti o n i n valid as t h epa rt ies did n o t co mp l y with th e ma n d at ory pr ovision s o f sec ti o n 12 ( 1) It may well be t hat the contr act un d e r co n s i d er a tion b e long e d to th e cat egor y of c o ntracts to whi c h a pp li es , b ut I will in thi s ( 1 ) s ect i on 1 2 i s su e , as I h old th a t section 12 judg ment no t dete rmine th a t r eq uirem e nts ( e ) of th e Ac t o f for s h o u ld h e ld b e en h av e ( e ). th e b e t o 9 I . ... - - ( e) o f the Act is not applicable to ( 1 ) c o nsideration by reason of section 2 (1) Act . That section provides that: the contract u nder of the Emplo yment the "The Minister may, by notice published Gazette, apply all or any of the provision s of this Act to such contracts or classes of cont racts or, to such employees or classes of employe es as may be specified in such notice, and the rel evant provisions of this Act shall apply according ly to any employers or employees who are parties to such contracts.". in The Minister did make an order for th a t purpose, na mely, Emplo y ment Act (Application) Order which makes the fol l o wing provisions: "2 The provisions of shall apply to every employee except: the employmen t Act (a) an employee whose earnings (exclusi ve of overtime earnings, commission or other emoluments) are equivalent to a ra te of or exceeding K480.00 per annum; Pro vided that sections 11, 51, 52, 54, 55, 56 , 57, 58, 59, 61, 62, 63, and 64 shall app ly to every employee.". that I hold Consequently, con tract between the plaintiff and the ~efendant was valid and is not the reason of section 12 r endered void by (e) th a t section is not applicable employment Act as the the plain tiff's thereto since c ont r act and a nnu a l in exce ss of K480.00. salary, at K54,000.00, was clearly the oral employment the parties o f t o (1) The plaintiff, in his evidence, tol d now determine the question respecting the par ty to I mu s t th e emplo y ment contract who was responsible for its b reach and termination. the court that upon concluding the contract with the defen dant, t he defendant was subsequently in breach thereof in se veral r espects. Firstly, the defendant did not reduce the verbal employm e nt contract in writing. the clear evidence of both parties that the duty to reduce the oral the defendant, contract into writing had been placed upon a nd it is also a f act that by the date of termination o f the oral contract, the defendant had not yet done so. I n his e vidence, the defendant sought to impress upon the co urt to hold the view that the oral contract had not been redu ced in writing and that it was eventually terminated by reas on of the inconsistent demands of the plaintiff. Upon a c areful revi e w of I do not agree with thed e fendant that he failed to reduce the oral contra ct in the writ i ng because of the too many inconsistent demands o f p laintiff. The defend a nt did not adduce evidence of th e the evidence before me, indeed It is 10 / .... - 10 - to the defendant, the defendant in not having the defendant did not pay school fees for the evidence clearly shows reduced to India. a matter of great concern iriconsistent demands which he alleged that had been made by t he plaintiff and which demands had rendered the defenda nt unable ·to reduce the oral employment contract in writing . As the that a matter of fact, conduct of the o ral c ontract in writing, as agreed, had been the more reason why the plaintiff had on several occasions sought appointm ents to discuss that issue among others, with the defendant, most o f which requests had not been granted by the defendant . By r eason of that conduct on the part of the throughout the entire period of his plaintiff was unable, to remit any part of engagement in the defendant company, This was, qu ite his earnings in the country the plaint iff. n aturally, Secondly, the defendant child of the plainti~f and the plaintiff had paid his own school fees in the aggregate amount of Kl0,100 .00. the defendant marked Exh. Pl3, The plaintiff's letter to r epresented an act of desperation on the plaintiff to his amicable the quest employment problems caused by the conduct of the defend ant then. the con t ract purportedly on the ground that by Exh. Pl3 the plaintiff had I do not see expressed his intention to leave employment. the Quite to anything contrary, the defend ant tosettle their differences amicably, and in so doing he had called on the defendant to preserve the interests of b oth parties to the employment contract; It is, therefore, q uite obvious amic able settlement of the concerns of the parties, was inconsiste nt with the allegation of the defendant that by that letter the plaintiff had expressed his intention to leave employmen t. As a matter of fact, in that letter the plaintiff had me rely impressions as to what the defendant had r ecorded his own wanted the unfavoura ble in the plaintiff do the defendant had deliberate ly employment climate which c reated, I, therefore, do not find that the plaintiff had expressed his intention to leave employment. It is expedient that I set out herebelow the text of Exh. Pl3, as follows: in that effect the plaintiff had that letter. thereby urged the part of solution The defendant subsequently the plaintiff. the plaintiff a call by supposedly terminated frustrate that see for for to to to in an "To the Managing Director Agason Motors. Dear Sir, have very clearly I your attributes and recent developments that you ex pect letter of notice effecting my me disassociation "Aga son Motors". to give you a understood services from from the of I a As proprietoryship management, foreigner am and working I have no option bu t for a 11 / .... - 11 - to agree with the decision of the propriet or, with this is a ma t ter of certain reservations. As from family concern , Lilongwe and we are discussing the pros an d cons of my acceptance to the present situation. I have called my daughte r In the absence of any (written) contract, we have t hat a to settle this issue amicably. meeting be arra nged on Monday the 7th March, 1 994, wherein we a can discuss cordial atmostphere and final d eci sion without jeopardising the interest of any pa rty . the said matte r reach I suggest i n a am sure this Monday meeting should sett le this I issue once and for all. 4th February 1994 LIMBE Thanking you Sincerely" END The d is cu ssions were held as sought by arisi ng fr om the outcome of the meeting, endor se d on Exh. Pl3 the following remarks: the plaint if f and the defendant had "We had meeting and agreed that should b e given one month salary Extra and by end of Ap ril . He will leave the house and give back the car. " . if n ot clear the meeting was attended by the i s It Be that as it may, one thing is very c e rtain, p lain t iff . namel y, t hat Exh. Pl3 did not convey an expression of the p lain ti ff 's intention to leave employment and furth er that the e nd or sement on Exh. Pl3 had merely evidenced th e views of t he de fendant as to what the defendant had inten de d the plain ti ff to do, or the defendant to do for the pl ain tiff, in t hos e circumstances. Thereafter, the defendant wro te to as the pl ai ntiff, foll ows , (as evidenced by Exh. P9): the cont rac t terminating i n effect, "Dear Mr Siva Swamy, Letter of Termination Enclosed find cheque number 945729 for as you have like to leave. The cheque is follows: given us notice that made K6 ,6 82.00 yo u would as u p March, 1994 salary K3,341.0 0 April, 1994 salary K3,341.00 K6,682.00 2 2 I . ... -- - \ 2 - We have just paid you supposed to pay us as notice. April salary but you were you are the one giving us we wish you the best whereever you go. P/S surrendered 1994 • I I • As discussed the car and the House should be than 30th April, soon not later I have observed above , As the defendant did not adduce evidence to show that the plaintiff had at all voluntarily expressed his intention to leave employment. The text of Exh. Pl3 is quite inconsistent with any such allegation. When the text of Exh. Pl3 is read together with the text of Exh. pg I feel quite certain to hold that the latter merely and unequivocally evidences the fact that the defendant, and not the plaintiff, had eventually formally the oral contract of employment between the parties. terminated for that If in it was also held that in the evidence adduced by reasonable notice should be given. their oral employment contract. Counsel Last but one, I should determine the question of notice for the termination of the oral contract under consideration. Both parties were agreed, them before me, that they had not settled the question of notice the under plaintiff submitted that where a contract of employm ent is silent as to the notice which is to be given by either party term must be to terminate the contract, the law is that a This implied isindeed a common law position which was affirmed by Bayley J in the case of Wins tone v Linn ( 1823), 1 B and C 460. In the case of Swale v Ipswich Tannery (1906), 11 Com. Cas. No. in the absence of an express agreement as to the determination of an employment contract, the question in each case must be one of the reasonableness type of contract a of the notice. that custom or custom or practice can be found to exist, practice may be treated by the court to govern the relations of the parties in that respect. As to what would constitute a reasonable notice, it is a question of fact to be decided according to the circumstances of each case, and it was so held by the court in the case of Payzu v. Hannford (1918) 2 KB 348. Let me mention or cite a few periods of reasonable in various employment have been notice to which persons found to be entitled. In the case of Speakman v Calgary City (1908) 9 WLR 264 it was held that in the case of a city engineer a period of less than six months would not be the case of Lazarowicz v Orenda reasonable notice. it was held in respect of a Engines Ltd and professional engineer with a back-ground of educational considerable technical experience that he was entitled to three months notice. In the cases of Hill V CA Parsons and Company Limited (1971) 3 ALLER. 1345 and James V Thomas H. Kent and Company Limited (1951) 1 KB 551, it was held that any period of six a to reasonable notice for a chartered engineer. twelve months would constitute ( 1961) O R 141, the particular I n 13 / .... - 13 - I to the take note o f instant case, the plaintiff the circumstances of the plaintiff would have been Turn ing is claim ing c ompensation or damages on the ba s is that appropriate and the employm ent rea s o nable notice in three mo nths contr a ct of n o t i ce . the fact that the plaintiff wa s an e n gi neer who had occupied a position of Workshop Manager and designer; terms and that he was employed on expatriate a person of consider able i ndeed exp erience t hose to regard one cir cumstances, it would not be appropriate month notice as having been a the d etermination of the contract of employment of the pa rties to this case. Accordingly, I hold that three months would have been a reasonable notice period for the determina tion o f the contract of employment in the instant case. the plaintiff was in reasonable notice for expartise. field that his of In that found the plaintiff and the defendant had Havin g the c oncluded between them a valid employment contract; tha t defendant was in a numbe r of respects as set out above; and finally that the defen dant the wr ongfully that p laintiff be granted, and he is hereby granted, all the d amages which he has claimed from the defendant, as fol lows: the contract; in breach of the contract terminated order I (a) (b) (c) (d) (e) K3 ,375.00 being salary (inclusive of income tax to be deducted) for March 1st to Marc h 23, 1994; Kl3500.00 being unpaid notice pay clculated at the plaintiff's monthly salary of K4,500.0 multiplied by the noti c e period of three months; fees paid by Kl0,100.00 being a n amount in respec t school the plaintif f resp e ct of his daughter which fees not defendant plaintiff; reimbursed had of in the the from 23rd March 1994, when terminated K31,500.00 being the plaintiff's lo ss of salary the the defendant had wrongfully contract, to 20th October, 1994, the date on which the defendant had provided air tickets the plaintiff's travel from Malawi to Ind ia; plaintiff for the to the expenses Kl0,038.00 being for air fares in respect of the plaintiff's wife and daughter travel from Malawi to I ndia, which expenses had been the plaintiff and which the defendant di d not reimburse the plaintiff; incurred b y 14 / .... (f) K4,000.00 being ejection company expiration notice (calculated as two months rent); damages the plaintiff from two months before of house unlawful the the period for the of ( g) loss of use of home furniture for two months; (h) ( i) ( j ) ( k) K600.00 being value of months; fuel for three value of services of a guard and house boy for three months; K300.00 beirig value of electricity for three months; Kl00.00 being value of water months; and for two (1) damages for loss of use of the car. three months; Unfortunately, I am unable to fix the quantum of damages for ( g) in respect of loss of use of home furniture for i terns ( i) in respect of value of services of a guard two months; and house boy for respect of inability in that damag-es for loss of use of the car. I could respect is due to basethe assessment of seems expedient to me that I order that counsel be heard on these points and accordingly I direct that counsel do attend for that purpose, before the Registrar at Blantyre on a date to be appointed by the the defendant succeeds in respect of question of damages, his counter claim against the amount of K7,675.50t. the 1 ack of mater i a 1 on which Last but one, on the plaintiff in the Registrar. the damages sought. and (1) It in My turn to the plaintiff's claim for costs in this Finally, I action. and Marketing Corporation versus Stambuli M S C A Civil Cause No. 6 of 1984, the Supreme Court noted the following: case of Agricultural Development the In r.2 sub "In quoting 0.62, rule 9, Mr Msaka emphasized that the exercise of discretion by a judge in awarding costs must be done on fixed principles, namely the shown event, unless special circumstances are which may a successful party of his costs. We agree with this observation correct lays principle.". that costs must in depriving justify follow which judge down the a the Let me observe that the plaintiff had never disputed substance of the defendant's counterclaim both during, and In fact, it before the commencement of, these proceedings. 15 / . . . . - 15 - ... of that employment his the defendant has been clearly shown ter minat i on a ppoi ntm e nt with inwh ich t he plaintiff would have repaid to the defend an t expen ses subject matter of defe ndan t 's counter claim. The plaintiff has succeeded a ll of alt h o ugh the defendant too has succeeded in respect o f cou n t er c laim. In the circumstances, the p laintiff. to the the plaintiff, prior had sought contract, the ma n ner to determine the the in the def end ant, the to the claims he has made against I award the co st s for air tickets, the PRONOUNCED in open court this 8th day of February, 199 5, at Bla n ty re . ~~ AK Tembo ACTING JUDGE