(COURT OF APPEAL)·

 EL SAYED EL HAG EL DOSH vs. PRESIDENT

AHLIA INTERMEDIATE SCHOOL

AC-Revision-164-58

Principles

·  Master and servant- Wrongful dismissed-Need to allege reasons for dismissal-Application of Employed Persons Ordinance, section 10 (1) (a) Damages-Measure of damages for wrongful dismissal-Obligation to minimise damages

(i)                          that if no reason such as misconduct or negligence are alleged a dismissal will be wrongful’
(ii)                       that if a dismissal person obtains employment at the same salary immediately after dismissal he will only be entitled to nominal damages. 
Reid v. Explosives Co. (1887) 19 Q.B.D. 264 followed.

Revision

Advocates: Abdalla El Hassan….for Applicant

                    Henry Riad…for Respondent

M.A. Abu Rannat C.J. :- This is an application for revision against the decision of the Judge of High Court Khartoum, reversing the decree of the District Judge Khartoum, in Civil suit No.628/57 dated 29th July 1958.

The material facts appear to be these:-  The Plaintiff, who was a teacher in the Khartoum AhliaIntermediate School, brought an action against the said School, claiming damages for wrongful dismissal, and gratuity for eight years’ service. He also claimed the difference between the salary of a headmaster and master on the ground that he acted as headmaser for a certain specified period. It was admitted that for eight years prior to the

Institution of this suit, the Plaintiff was employed by the Defendants as a schoolmaster at an annual salary of £S. 510.

The total amount claimed by the Plaintiff falls under the following three items:-

1.    £S.185.325m/ms damages for failue to give him

months’ notice under a written

contract of service calculated on

the basic salary of a headmaster.

2.    £S.110.250m/ms  difference between the salary of 

a headmaster and headmaster for one year.

                   3. £S.247.100m/ms    gratuity for eight years’ service.

                       £S.542.675m/ms

Out of this amount the Defendants admit they are liable to pay £S.85 gratuity for his service with them. This amount in fact represented contributions towards a provident shceme whichwas not compeleted. During the hearing, it transpired that the Ministry of Education paid to the Plaintif a gratuity of £S.230 for his past services with Defendants, and the Plaintiff accepted thi amount in satisfaction of the gratuity claim. The District Judge rejected the claim in respect of the difference between the salary of a master and headmaster, but granted the Plaintiff £S.127.500m/ms damages for failure to give him three months’ notice plus £S.85 that had been admitted by the Defendants.

On 9th August 1958 the Defendants applied to the Judge of the High Court Khartom for revision of the District Judge’s decree in respect of the £S.127.500m/ms only, and they prayed that the decree be affirmed in respect of the £S.85 admitted by them.

On 15th September 1958 the learned Judge of the High Court delivered his judgment in KHC-REV-319-58 dismissing the whole claim including the £S.85 admitted by Defendants.

This application is by the Plaintiff against the decision of the Judge of the High Court in respect of £S.127.500m/ms damages in respect of notice and the £S.85 admitted by Defendants. There is no difficulty about the £S.85 admitted  by Defendants. Defendants’ Advocate admits it before us, and we need not go into it. The real important issue is whether there was wrongful dismissal, and if so whether the Plaintiff is entitled to damages equivalent to three months’ salary. In order to reach a decision on this point, it is necessary to look at the documentary evidence produced by Plaintiff.

In their letter of 25yh June 1957 (Ex.5) the Defendants referred to an earlier letter dated 7th June 1957 and asked Plaintiff to hand over his duties to a schoolmaster by name Mustafa Surur. The Defendants contended that they did not dismiss the Plaintiff, who left their service of his own accord,

And that neither the letters of 7th June 1957 nor 25th June 1957 conveyed to Plaintiff any intention of dismissal. It is clear from the contents of the letter of 25th June 1957 that the Defendants dismissed the Plaintiff, and threatened him that if he did not hand over the school , they would take the “necessary action”. The tone and words in which the letter was couched leave no doubt in my mind that the Defendants dispensed with the services of the Plaintiff , and as no reasons were given for his dismissal, such as misconduct or negligence, the dismissal must be wrongful. This in fact amounts to a reputation of the contract of service, and the Plaintiff is entitled to damages for its breach.

The next question to be decided is the measure of damages. It is common ground that the Plaintiff was employed as a  schoolmaster by the Education Deprartment on 1st July 1956, and that he was dismissed on 25thJune 1957 after he was paid his salary up to 30th June 1957. Article 6 (2) of the Contract of Service provides that the contract will terminated if one of the parties gives the other three months’ notice or any lesser period agreed to by them. The Defendants that the Plaintiff is only entitled to nominal damages since he was paid his salary by them (Defendants) up to damages. The measure of damages in all actions for breach of contract is the same, namely, the pecuniary loss sustained, provided such loss flows naturally from the breach in question. On the other hand it is the duty of the a party to minimise the damage he sustains by the wrongful acts of another. It was hedl in Reid v. Explosives Co. (1887) 19 Q.B.D 264 that a servant will recover only nominal damages for wrongful dismissal, if he obtained, immediately after his discharge, similar employment at an equal remuneration. This is exactly what has taken place in this case, and under the contract of service , the Plaintiff is only entitled to nominal damages, which is fixed at £S.1.

The next point is whether the Plaintiff will entitled to three months’ salary under section 10 of the Employed Persons Ordinance.

Section 10 (1) (a) reads as follows:-

“Subject as hereinafter provided, every contract of service wherein no agreement respecting notice of longer duration is expressed, not being a contract to perform some specific work without reference, to time, shall be determinable by either party:-

(a)      where the employed person is engaged on the basis of a monthly wage, at expiration of one month’s notice which may be given at any time.”

I have carefully considered this section, and in my view it does not change the general rule that the employed person must mitigate the damages. This section lays down the minimum period for notice if the Contract of service does not provide for one of longer duration. In this case if the Applicant was not engaged immediately after discharge, he would have been entitiled to all damages naturally following from the breach of contract.

In the result the appliction is allowed to the extent of nominal damages in respect of wrongful dismissal and to recovery of £S.85 which was admitted by the Respondents.

As to costs, the Applicant as Plaintiff will be entitled to the following amounts:-

(a)             At the District Court:-

£S.4.000m/ms  Court fees for the admitted

                          claim of £S.85.

£S.1.000m/ms  for the disputed nominal

                          damages.

£S.7.750m/ms  Advocate costs

£S.12.789m/ms

(b)            At the Court of Appeal:-

£S.14.000m/ms   Court fees on revision.

 He is entitled to the full Fee, because he succeeded on the points raised by  Him although he got lesser

                              Damages.

£S.7.000m/ms    Advocate costs

£S.21.000m/ms

Total costs are taxed at £S.33.780m/ms.

Abdel Rahman El Nur J. :- I concur

(Revision allowed)