(COURT OF APPEAL)

APOSTOLOU BROVATIS v. EL NUR SULIEMAN IDRIS

AC-REV-389-1968

Principles

  Interpretation of Statutes—” Washerman” is a “Farash” within the definition in the Domestic Servants (Hotels and Catering) Wages and Conditions of Employment Order(1954 L.R.O. No. 1), s. 1

Plaintiff was employed by defendant as a washerman in his hotel and some time later plaintiff’s services were lawfully terminated. Plaintiff thereafter instituted proceedings under the Domestic Servants (Hotels and Catering) Wages and Conditions of Employment Order(1954 L.R.O. No. 1) to recover the difference between his actual pay and the pay prescribed by the said order. The court below found for plaintiff, and the Province Judge upheld the decision. Applying for revision to the Court of Appeal the defendant pointed out that the court below was wrong in applying to the plaintiff the Domestic Servants (Hotels and Catering) Wages and Conditions of Employment Order and asserted that the court ought to have applied the Domestic Servants Ordinance. Upholding the decision of the court below.
Held: According to the Domestic Servants (Hotels and Catering) Wages and Conditions of Employment Order(1954 L.R.O. No. 1) s. 1 the word “Farash” means “washerman

Advocates: Abdalla El Hassan

& Abdel Wahab Abu Shakiema ………………..for applicant

Judgment

Mohamed Yousif Mudawi J. October 13, 1968 : —This is an application for revision made by advocates Abdalla El Hassan and Abdel Wahab Abu Shakeima on behalf of Apostolou Brovatis, applicant and defendant.The application purports to challenge a decree passed by District Judge,

Khartoum on June 15, 1968, in favour of plaintiff, El Nur Sulieman Idris. The decree was upheld by Province Judge, Khartoum.

The facts of the case briefly stated are as follows:

Plaintiff was employed by defendants on May 5, 1967, as a washerman in his hotel “Royal Hotel “. His monthly pay was £S.7.500m/ms.

On May 5, 1968, plaintiff’s services were lawfully terminated. He was accordingly in the employ of defendant for ten months and twenty-five days.

Plaintiff thereafter instituted these proceedings under the Domestic Servants (Hotels and Catering) Wages and Conditions of Employment Order (1954 L.R.O. No.1) to recover the difference between his actual pay and the pay prescribed by the said order.

The court below found that the said order prescribed a monthly salary of £S.9.000m/ms. for the employees of the category of plaintiff. The difference to which plaintiff is entitled is therefore calculated by the court

as £S.1.500m/ms. per month. This sum multiplied by ten months and twenty-five days makes a total of £S.16.250m/ms

The court ordered defendant to pay plaintiff the amount of £S.170150m/ms which includes 900m/ms. being fees. It also ordered defendant to pay into court 900m/ms. in court fees.

The application for revision is based on one point of law concerning the interpretation of the Domestic Servants Ordinance. Applicants point out that the courts below were wrong in applying to plaintiff the Domestic Servants (Hotels and Catering) Wages and Conditions of Employment Order 1954 (L.R.O. No. 1). They further assert that the court ought to have applied the Domestic Servants Ordinance.

They quoted a section which they alleged to be section 2 of the said ordinance. According to applicants this section reads:

“Domestic servants shall include both in-door and out-door servants and shall include waiters and attendants in any registered or licensed hotel, coffee house or restaurant, etc.”

I had a thorough look at our statute book and discovered that the section referred to by applicants is in fact part of the Domestic Servants Ordinance 1921 (see page 15 of Volume 8 of the Laws of the Sudan). But fortunately or unfortunately this Ordinance was repealed and replaced by the Domestic Servants Ordinance 1955 (1955 Ordinance No. 9). Section 3 of the new Ordinance defines the word “servant” as follows:

“It means any person employed either wholly or partly as cook, house servant (including bedroom and kitchen servants) waiter, butler, nurse, valet, bar-boy, footman, chauffeur or washerman or in any capacity involving the duties usually performed by any of the above mentioned servants by whatever title the person acting in such capacity may be styled; but does not include a person so employed by the Sudan Government or by a local government authority or by any catering establishment carried on for gain or by a club, boarding house, school, hotel, canteen, etc.”

It is clear that the new definition of the word servant removes hotel servants from the operation of the Ordinance. This category of servants is provided for under the Domestic Servants (Hotels and Catering) Wages and Conditions of Employment Order. Section 1 of the said order gives a long list of definitions which exhaustively describes the functions of almost all imaginable types of hotel jobs. The definition of the word “Farash” describes the functions of a Farash in the following manner:

“It means a person who is wholly or mainly employed on one or more of the following duties that is to say: making beds, cleaning in bedrooms, bathrooms, corridors, staircases, lounges, restaurants,

                                                       lavatories, or any other part of the premises, and emptying and clearing waste water pits or on duties ancillary to any of these duties.”

The District Judge, Bakri Ahmed Abbas quite reasonably included a washerman within the definition of the word “Farash “. He relied on the last phrase of the definition, that is, he considered a washerman as a person who is employed on duties ancillary to the duties of a Farash. This interpretation is in my opinion very reasonable and very correct. The District Judge then proceeded to apply the order and accordingly passed his decree.

I quite agree with his conclusions, although I believe he committed the clerical mistake of ordering plaintiff to pay defendant 900m/ms. being court fees and at the same time ordering plaintiff to pay into court the same amount also in fees. But this mistake can be corrected by the District Judge himself, and I therefore leave it to him.

Apart from this small observation the trial was well conducted.The application must in view of the above be summarily dismissed.

El Rayah El Amin C. J. October 16, 1968 :—In this application for revision, the learned advocate for applicant asserted that the courts below went wrong in applying the Domestic Servants (Hotels and Catering) Wages and Conditions of Employment Order (1954 L.R.O. No. I) and that the courts ought to have applied the Domestic Servants Ordinance (1921), as the definition of Domestic Servant in that Ordinance covers the respondent in the present case.

I admit that under the past state of the law, there is ambiguity and I had much doubt in my mind whether the courts below were right in resolving the ambiguity in favour of respondent, and deciding that a “washerman” comes within the definition of the word “Farash “.

My learned colleague Mudawi J. pointed out that the Domestic Servants Ordinance (1921) was repealed, and replaced by the Domestic Servants Ordinance (1955) which enumerated all types of persons, that come under the definition of domestic servants, and excluded servants employed by a catering establishment.

It is very clear from this definition that the court below rightly decided in favour of respondent taking into consideration the definition of “Domestic Servant” implemented by the new Ordinance.

Therefore, I agree that the application be summarily dismissed.

Abdel Magid Hassan J. October 30, 1968 : —I agree.