[1951] EACA 342

## ORIGINAL CIVIL

## Before WINDHAM, J.

## P. R. PATEL, Plaintiff $\mathbf{v}$ $\mathbf{v}$ $\mathbf{v}$ .

$\mathcal{O}(\mathcal{O}_\mathcal{O})$

C. W. LOCKYER, First Defendant, J. M. DAVIES, Second Defendant

Civil Case No. 110 of 1950

Master and servant—Wages in lieu of notice—Proof of damage—Proof of custom.

The plaintiff was employed by the defendants on a monthly salary and was unjustifiably summarily dismissed. He claimed, *inter alia*, a month's salary in lieu of notice.

Held (15-6-51).—That if there is a usage in Kenya that an employee who is paid monthly is entitled to a month's notice, such usage must be proved. That here no such usage had<br>be proved nor had it been sought to show that the plaintiff had suffered any damage. The claim therefore failed.

Case cited: Witu Rubber Estates v. Peake, 5 E. A. L. R. p. 17.

Harris for plaintiff.

First defendant, in person, unrepresented.

Second defendant, absent, unrepresented.

JUDGMENT.—The plaintiff was, from August, 1949, until 15th April, 1950, employed by a firm of timber merchants, builders and joinery and furniture manufacturers known as LEBS (E. A.) Ltd., (in formation) of which the defendants were two of the partners. The other partners in the firm, it appears on uncontested evidence, were a Mr. Strydom and a Mr. Brown. A Mr. Ferrow was the manager of the firm. It is admitted on the pleadings and in evidence that on 15th April, 1950, Mr. Ferrow dismissed the plaintiff from his employment on the spot, without notice.

The plaintiff was first engaged at a salary of Sh. 600 per month. It is alleged by the plaintiff, and denied by the defence, that as from 1st December his salary was increased to Sh. 800 per month. It is admitted on the pleadings that for each of the months of February and March the plaintiff was paid Sh. 710 and no more. The plaintiff sues the defendants for the following amounts: -

- (a) Sh. 180 being the outstanding balances of Sh. 90 salary for February and March respectively: - (c) Sh. 400 being salary (at the rate of Sh. 800 per month) for the first 15 days of April, that is to say, up to his dismissal; - (c) Sh. 35 being the amount of a loan made by the plaintiff to Mr. Ferrow for the firm's purposes and said by the plaintiff never to have been repaid to him; - (d) Sh. 200 being the agreed price of certain tools said by the plaintiff to have been sold by him to Mr. Strydom acting for the firm, and never to have been paid to him; - (e) Sh. 800 being one month's salary in lieu of notice.

I will deal with each of these items in turn.

First, regarding the balances of salary due for February and March. The only persons who have given evidence in this case are the plaintiff himself, the defendant Mr. Lockyer, and Mr. Brown who is not a defendant but was a partner in the firm. The plaintiff states that he was paid Sh. 600 per month up to the end of December, and exhibit (2), a memorandum of agreement signed

by himself and Mr. Strydom, confirms that he was originally engaged at Sh. 600 per month. The plaintiff testifies that as from the beginning of January his salary was increased by Mr. Strydom to Sh. 800 and that Mr. Strydom actually paid him that amount for January, but that for February the defendant Mrs. Davies paid him only Sh. 710 while for March the defendant Lockyer again paid him only Sh. 710. Mr. Lockyer, who gave evidence, admitted that he was little more than a sleeping partner, and was not able to say positively that Mr. Strydom might not have increased the plaintiff's salary to Sh. 800 as alleged, though he thought it was unlikely. He said that Mr. Strydom had let the firm down badly in other ways. Mr. Brown also was unable to say more than that "as far as I know plaintiff's wages were never increased to more than Sh. 600". This evidence of Mr. Lockyer and Mr. Brown, however, is quite inconsistent with paragraph 3 of the statement of defence, in which it is admitted that "the said salary of the plaintiff was increased to Sh. 700 per month as from the 1st day of December, 1949". On the pleadings, therefore, I cannot hold that the salary for February and plaintiff's March was less than Sh. 700 $\mathbf{I}$ $and$ the only question is whether $am$ to accept the plaintiff's evidence that it was as much as Sh. 800. The defence has produced a muster roll dating from the beginning of April, 1950, showing the plaintiff's salary for April as Sh. 600 only. But this is inconsistent with their own statement of defence, unless indeed the planitiff's salary was reduced again for April, as to which there is no evidence. The entries in this book are by Mr. Ferrow, whom the defence have failed to call; and it may well be that in making this entry Mr. Ferrow was unaware of Mr. Strydom's having orally increased the plaintiff's salary. Moreover the defence have failed, although given an opportunity to do so by the Court during the hearing, to produce the books relating to the period December to March inclusive, which might have thrown further light on the matter. On a balance of evidence I accept that of the plaintiff that his salary was increased by Mr. Strydom to Sh. 800, and that in particular this was the salary due to him for February, March and April (until his dismissal). I am not satisfied on the point beyond a reasonable doubt; but in a civil case that is not necessary, a balance of evidence being sufficient. I accordingly find for the plaintiff in the amount of Sh. 180, being outstanding arrears of salary for February and March.

It follows from this finding that the plaintiff's claim for Sh. 400 for the 15 days of April during which he worked for the defendants must also be allowed, and I find for him in that amount also. It is admitted that nothing has been paid to him in respect of any part of April.

With regard to the plaintiff's claim for the Sh. 35 loan to Mr. Strydom for the firm's purposes, the defence admits that this loan was made, but allege that it was duly repaid. Only two persons have testified on the point, the plaintiff who says that it was never repaid, and Mr. Brown who says that Mr. Ferrow repaid it to the plaintiff in his presence. In this direct conflict of testimony the scale is to my mind tilted in favour of the plaintiff by an I. O. U. which he produced (exhibit 3), in Mr. Ferrow's hand, for the amount of Sh. 35. The probability is that Mr. Ferrow would have required the plaintiff to return this document if and when he had repaid the Sh. 35. Again, therefore, on a balance of evidence, I accept the plaintiff's statement as the more probable, and I find for him in the amount of Sh. 35.

Turning to the Sh. 200 claimed in respect of tools sold by the plaintiff to Mr. Strydom for the firm and not paid for, neither witness for the defence has been able to contradict the plaintiff's evidence on this point, both of them merely stating that they knew nothing about it. I accept the plaintiff's evidence, and accordingly find for him in a further sum of Sh. 200.

Lastly I turn to the claim expressed in the plaint as being for "Sh. 800 being one month's salary in lieu of notice". It is admitted that Mr. Ferrow dismissed the plaintiff peremptorily on 15th April. With regard to the cause of the dismissal, the plaintiff states that it was because Mr. Ferrow had immediately. before the dismissal asked the plaintiff to lend him Sh. 200 and the plaintiff had said he was unable to do so. Mr. Brown, on the other hand, says that he was present when Mr. Ferrow dismissed the plaintiff, and that it had nothing to do with any Sh. 200. What happened, he says, is that the plaintiff came into the office making an allegation that one Wilfred had threatened him, that Ferrow had said: "Can't you see we're busy; get out", that the plaintiff refused to get out, whereupon Ferrow pushed him out of the office saying, "You're dismissed". Of these two versions I think that of Mr. Brown has a greater ring of truth, and I accept it. I make this finding, however, purely for the purpose of record, for even on Mr. Brown's version I do not consider that the plaintiff can be held to have been guilty of wilful misconduct justifying immediate dismissal, as alleged in the defence.

What, however, gives rise to more serious consideration is the legal aspect of the plaintiff's claim for "Sh. 800 being one month's salary in lieu of notice". The plaint does not allege that any damages have been suffered by the plaintiff through the wrongful dismissal, nor does it state that the Sh. 800 is being claimed by way of damages, whether general damages or liquidated damages or otherwise. Nor has the plaintiff adduced one word of evidence to show that he has suffered any damages. It cannot be presumed that the plaintiff suffered damages to the extent of Sh. 800, or any at all, in the absence of evidence. He might have obtained employment at a higher salary, though it is unlikely, on the very day after his dismissal. If he is claiming damages, then the burden is on him to prove that he incurred them, and this he has failed to do.

Pressed to explain the nature of the plaintiff's claim under this head, and to justify it, his Counsel was driven to argue that he was relying on a usage in Kenya that where an employee is paid monthly he is entitled to a month's notice, and that if he is wrongfully and summarily dismissed he is entitled to claim one month's salary in lieu of the month's notice, as liquidated damages. That indeed is the only basis on which the claim might have been allowed, in the absence of proof of damage, or of any express term in the contract providing for a month's salary as liquidated damages in such a case. But while it may well be that such a usage does not exist in Kenya, its existence must be proved. It would appear that in England, at any rate in domestic service, such a usage does exist, of which the courts, after continued proof of the usage, have taken judicial notice: see Halsbury's Laws of England, Hailsham Ed., page 150, paragraph 248, and the cases there cited, in particular George v. Davies (1911) 2 K. B. 445, where Bray J. commented: "When this custom is continually being put forward and proved by evidence, a time must come when a judge may say that he no longer requires it to be proved, but that he will take judicial notice of it".

In the present case, however, not only has there been no proof of the existence of such a usage among employers and employees on a monthly salary basis in Kenya, but I have been referred to no reported decision, nor can I discover one, where proof of such a usage has been acted upon, still less where by reason of frequent previous proofs of the usage judicial notice has been taken of it without further proof. Without such proof it would be improper for this Court to take judicial notice of the existence of such a usage in the present case. The usage which learned Counsel for the plaintiff asks this Court to recognize, be it noted, is a usage that a month's wages shall be payable as

liquidated damages, so that it would be payable even if the employee were shown to have obtained other employment immediately after his dismissal.

I do not doubt, of course, that even in the absence of such a usage, an employee on a monthly basis would be entitled to a reasonable period of notice, always assuming that he was dismissed through no default of his own. But in such a case the employee, if dismissed before the expiry of a reasonable period, would have to prove damages, so that this observation is irrelevant to the present case, where no damage has been proved.

The necessity of proving the existence of a usage, which is well established under the English law, is equally recognized in the Indian Evidence Act, in particular sections 13 and 49 and section 92 (proviso 5); I would also refer to the commentaries on those sections in Woodroffe's Law of Evidence, which make it clear that the position is the same as under the English law.

I have been able to discover only one reported decision in Kenya which throws any light on the question of damages for wrongful dismissal, and that is the case of Witu Rubber Estates v. Peake, 5 E. A. L. R. 17. In that case the plaint (which I have perused) was specifically based on a breach of contract, i.e., the wrongful dismissal without due notice, and it alleged that general damages had been suffered through the breach to the amount of Rs. 5,000. Evidence was given in proof of these damages. It was held on appeal, upholding the decision of the trial court, that the measure of damages was "What time might reasonably be expected to elapse before the appellant would in the ordinary course be likely to obtain similar employment to that he lost by his wrongful dismissal", and that "a plaintiff is entitled to recover for all damage flowing naturally from the breach, and in considering what that would include. the jury may take into account the difficulty a plaintiff would have in given circumstances in obtaining employment elsewhere". It was held that since the trial Judge had carefully considered the evidence on these points, including evidence that the plaintiff had sought to obtain employment elsewhere, his decision would not be upset.

The above case was not one where the salary was paid monthly; but it does clearly lay down the principle that in claims for damages for wrongful dismissal the damage should be proved, as it was not proved in the present case. With regard to any usage whereunder such damage would not have to be proved, then in such case the usage itself would and will continue to have to be proved, as was not done here, until such time as the Courts, after its having been proved for a sufficient number of times, may take judicial notice of it.

The plaintiff accordingly fails in his claim for Sh. 800 as one month's salary in lieu of notice. He has thus succeeded to the extent of about one-half of his total claim. That being so, each party will pay his own costs.