Singer Sewing Machine Company v Dolly E. George (MAG APP 26 of 1963) [1963] SLSC 49 (27 July 1963)

. 3 existed between the parties-if he decides that such a tenancy in secw;n d has been duly determined he may disregard any other claims of existed a~tle. In short, he has to decide whether as between the immediate rig~~ ~~he relationship of land~ord and tenant exist~d and he is _not con:erned pa•"t:" ; . whether the complamant has a sound title to any mterest m the •o aec,oe . • - rnises in questiOn. . . " -P' e... ,.. n P, makes It qmte clear that the delendant or any other person <.;ecdOu • ~ · l~'m to the premises or any interest therein would not be debarred from ;a~~~! C-;~oceedings in the_ Supreme Court for a declaration of title, tal' ,;thstanding the proceedmgs under Cap. 49 and the result thereof. not7-therefore hold that ground 1 of the appeal fails. , 71;-;th regard to ground 2, I agree that the appellant was not a tenant on ~uff;r~nce. If a tena~cy ~s allege~ existed it appears to h~v: been ~ tenancy ~. will. I do not thmk 1t matenal that the respondent m ner not1ce dated ~c ~~rv 29, 1962, described the appellant as a "tenant in sufferance." She '"".,,.~t- aave him notice which was of sufficient length to determine a monthly m :~~v"' On the evidence (if believed) it is clear that the appellant had a t<;fi<>·'"·. t;;~<mcy within the scope of section 3 of the Act. I hold, therefore, that ground 1 disdoses no substance. With regard to ground 3 I think there was ample ;vidence upon which the magistrates could come to the conclusion that a tenancy existed between the respondent and the appeiiant. In finding the facts it would appear that they preferred the evidence of the respondent to that of the appellant. As no other witnesses gave evidence, they were entitled to come to this decision. I hold that this ground also fails. The appeal is accordingly dismissed with costs to be taxed. [SUPREME COURT] SEWING MACHINE COMPANY Appellants v. Respondent [Magistrate Appeal 26/63] 'i'<l,l!c<racl'-cf!:nwlovme•nt contr.act--Wrong[uJ. dismissal-Damages-Length of notice-­ salary in lieu of nolice-Whether emplo:yee enl.itl&d to additional tia,murge.>~-" Leave pay." Respondent was employed by appellants as a customs clerk on March l, 1958, a salary of £16 per month. In February, 1962, her salary was increased to per month. She was also entitled to a bonus or commission. On I~nuary 15, 1963, she was wrongfully dismissed. If she had not been dismissed, sue would have been entitled to 12 days' leave after February 15. Respondent brought suit for wrongful dismissal in a magistrate's court, . . it was held that respondent, in addition to a month's salary in lieu of notice, was entitled to " pay in lieu of leave earned " and " a sum by way of compensation for the time she will take to secure another employment." Appellants appealed against this decision. 51 s. c. 1963 ROBERTS v. MASON. Dobbs J. Freetown July 27 1963 Dobbs J. s. c. 1963 SINGER SEWING MACHINE eo. v. GEORGE. Dobbs J. Held, allowing the appeal, (l) that if a contract of employment is terminat before the date for beginning leave has been reached, the employee 18 nea entitled to any payment in iieu of leave; and ot (2) That one month's notice was sufficient to end respondent's employme and, therefore, that if she were given one month's salary in lieu of notice -nt, well as whatever bonus or commission she was entitled to, she was not erJ.tlti~ to any additional damages. Case referred to: Addis v. Gramophone Company Ltd. [1909] A.C. 488. Desmond E. Luke for the appellants. Solomon A. J. Pratt for the respondent. Note: This judgment was affirmed by the Court of Appeal on March 11, 1964 (Civil Appeal 23 I 63). DOBBS J. The respondent was the plaintiff in Magistrate's Court No. 3 in an action against the appellants for damages for wrongful dismissal and was awarded the sum of £65 and costs totalling £11 5s. 9d. by Mr. J. B. Short, the presiding Police Magistrate. Against this decision the appellants have appealed. The grounds of appeal in this case are as follows: 1. Misdirection in law (a) That the learned trial magistrate was wrong in holding that the plaintiff was entitled to more damages than pay up to January 15, 1963, and a month's salary in lieu of notice. (b) That the learned trial magistrate was wrong in refusing to allow evidence to be led confirming the offer of pay up to January 15, 1963, and a month's pay in lieu of notice. (c) That the learned trial magistrate applied wrong principles of law in determining the quantum of damages. 2. That the decision was unreasonable having regard to the evidence. 3. The damages awarded are excessive. The facts not in dispute were that the respondent was employed by rhe appellants as a customs clerk on March 1, 1958, at a salary of £16 per month. In 1960 she was asked to keep the spare parts and sundries store. That on engagement she was told that her services could be terminated on reasonable notice which she alleged she took to mean three months. From ~ate February 1962 her salary was, by letter dated February 14, 1962 (Exh. "A"), increased to £18 per month. The respondent stated she was also entitled to a bonus of one-third of her monthly salary. It is not clear whether this was a monthly bonus amounting to £6 or whether it was £6 per annum. However, she said she. was entitled to £1 commission. This was not challenged but no evidence was given of commission as distinguished from bonus, so I assume bonus and commission are one and the same thing. I also assume that the £1 was bonus she alleged she had earned up to the date of dismissal. Exhibit " C," a letter written by Mr. Shoyoola, the manager of the appellant company, dated January 15, 1963, was clearly a letter of summary dismissal. There was an allegation by the defence that at the time Exhibit " C " was handed to the respondent pay up to that date and one month's pay in lieu of notice was tendered by Shoyoola. The respondent denied this and Mr. Shoyoola gave evidence that it was so. I think the learned trial magistrate could have allowed in the letter dated January 24, 1963, which I allowed to be put in as Exhibit " D." but I do not think the letter carries the matter much further. Quite 52 . coming to his decision, the learned trial magistrate made no finding clearlf' mint. Anyway, the appellants could have paid the money into court on th'd5 p:ith or without an admission of liabiiity. -ten er . . . . iP There was conflict o~ ev1den:e ~s to whether the respo~dent was ent~tled ". • ys' leave at the t1me of diSmissal. The respondent said she was entitled to 1"" ~a at the time Exhibit "C" was handed to her. Mr. Shoyoola said she to leav~ due for leave until February. With respect, I think Exhibit " A " ~!~.~~:as put in by the appellants clearly shows she was not entitled to leave "'":~· •hnn the date of that letter, which was February 15, assuming in the "":f'"~er 1. "-!. e~'"',.. -e of evidence to the contrary that she had duly had her leave in 1960, ~ ose .. c · f h · d b l d. · d b h' ': 61 and 1962. If, there ore, s e ha een proper y 1Sm1sse y a mont s 19 ,,-, (assuming for the moment that one month's notice was her entitlement) no.,~e ~',;~n on January 15, 1963, she would not then have earned leave. Here I ;~~t I should mention that there seems to have grown up a misconception ~~--- ··ce of the loose application of the expression " leave pay." The true vecau.;, • c • nosition is that the contract provides for an employee to have certam holidays ~f stipulated length and to re:eive n~rmal pay for the period of the holiday without having to work for 1t. Th1s does not mean that the employee IS entitled to anything extra over and above his normal pay. The period of holidaY is all part of the period of employment and does not, in my view, call fo-r any payment in lieu if the contract of employment is terminated before the date for beginning the holiday has been reached. Mr. Luke for the appellants, presumably under ground 2, argued that there was no wrongful dismissal and that the appellants were merely being generous in offering pay in lieu of notice. I differ from him here. I do not think there was sufficient evidence given at the trial to justify a finding of justifiable sununary dismissal. With regard to the other grounds it seems to me that ground 1 (c) and ground 3 ail come within the scope of ground 1 (a). I shall now consider the learned trial magistrate's judgment. It is sufficiently brief to be set out in full and is as follows: " Plaintiff brings this action claiming damages for wrongful dismissal. defence has not seriously sought to justify the dismissal but counsel the defendant has urged in an able speech that as to quantum of ~""u .. ,g~s all plaintiff is entitled to is a month's wages plus commission and pay due. [I should comment here that according to the record Mr. ·:.: ,.-o-···- did not concede commission and leave pay due. I admit he could expressed himself with greater clarity but his actual words as were: 'We, however, take the position that although we are . •·'•·· ""'"""" to dismiss instantly even without wages, we are also entitled to ::, ,u;gu:nss with reasonable notice. Such reasonable notice is one month. We further entitled in lieu of such notice to pay the plaintiff a month's · W<tges which represents all the damages she would suffer not excepting a,ny commission or leave which would have fallen due within that month.'] With this proposition I am unable to agree. Plaintiff, in my view, is entitled as well to a sum by way of compensation for the time she will take to secure another employment [emphasis supplied]. . " Having regard to all the issues raised I award the plaintiff damages mcluding pay in lieu of leave earned and commission totalling £65. I award £11 15s. 9d. costs including £10 !Os. Od. for counsel.'' 53 s. c. 1963 SINGER SEWING MACHINE eo. v. GEORGE. Dobbs I. s. c. 1%3 SINGER SEWING MACH!r.'E eo. V. GEORGE. Dobbs J. In my view, the learned trial magistrate erred in the view expressed in the words I have emphasised. I take him to mean that the proper notice was one month but that in addition the respondent was entitled to compensation for the time she would be likely to take to secure other employment-he does not specify what he considers this time should be. With respect, I think the learned trial magistrate has not fully considered the fundamentals of contract of employment which after all are governed by the ordinary laws governing all contracts. Apart from questions of summary dismissal and termination of a specified period contracted for, a contract of service is terminated by notice given by either party. This notice may be expressly provided for in the contract, it may be laid down by law (vide Cap. 212, which, however, does not apply to the respondent's employment), it may be fixed by custom of which judicial notice may be taken as in England in the case of domestic servants or by custom of which evidence has to be given. In the absence of any of these, including a contract of service which can be regarded as a yearly hiring (I shall mention this later), the service is terminable by reasonable notice. What is reasonable notice is a question of fact. ln deciding what is reasonable notice one should take into account the work the employee is doing and weigh up and estimate how long it would take him to get similar employment with reasonably si..rnilar conditions of service, pay and prospects. Many examples are given on page 490 of Vol. 25 of Halsbury's Laws of England (3rd ed.). These examples are not, of course, binding on this court in any specified case but a study of them clearly shows the principles to be followed. Once the period of notice to which the plaintiff is entitled has been decided there is no question of adding anything further. This view is supported by the decision in the case of Addis v. Gramophone Company Limited [1909] A.C. 488, in which it was held that a person was not entitled to damages to compensate for any indignity suffered by him in the manner of his dismissaL The simple question here is what length of notice was the respondent entitled to be given to bring her contract of employment lawfully to an end. In my view, that period was one month. I differ from Mr. Luke, however, in his contention that the payment of a month's wages is equivalent to giving one month's notice. This may be so if the respondent could not earn anything extra during the month of the notice. In this case there was evidence that she could earn bonus or commission. I agree with the appellants that the learned trial magistrate misdirected himself in principle and that the damages awarded are excessive and should be reduced. Before giving my decision I should mention that Mr. Pratt has submitted on behalf of the respondent that the contract 'was a general hiring and, there­ fore, there was a presumption that the hiring was for a year and could only be terminated with the current year. He did not indicate, however, when he considered the current year could expire. With respect, I do not think there is any evidence here of a general hiring. I should be interested to hear of examples where the contention that they were general hirings has been upheld in the courts of this country. I hold that the respondent was entitled to one month's notice. She should, therefore, be paid wages earned up to the date of dismissal, viz. : £9 and one month's pay for the period of notice she should have received, viz.: £18 and £1 commission. She has given no clear indication of how much commission she 54 h earned during the period of notice and in her statement of claim would ave 1 ~IaitnS £1. onS " ward of damages will, therefore, be reduced to £28. The award of :~e ~he magistrate's court to stand. Had the appellants availed themselves c:st:> ll1 rocedure of paying into court my decision on this point might have o! thedi~erent. The appellants to have the costs of the appeal to be taxed. been f. the judgment debt of £65 paid into court the appellants are to be paid ~~t 8~~ of £37 and the taxed costs of the appeal. The balance to be paid ; 0 the respondent. [SUPREME COURT] s.c. 1963 SINGER SEWING MACHINE Co. v. GEORGE Freetown August 9, sULAIMAN BAH Applicant 1963 v. DIRECTOR OF PRISONS, SENIOR POLICE MAGISTRATE AND SADU BAH · . · · . · · · · [C.C. 245/63] Respondents Habeas corpus--Arrest of debtor about to leave country-Debtor not brought before court-Committal to prison by improper person-Dcbws Act (Cap. 24, Laws of Sierra Leone, 1960), ss. 4, 5,. 6, 7, 8, Form A. On July 20, 1963, the third respondent caused a summons to be issued in the magistrate's court claiming the sum of £50 from the applicant. The return date for the hearing of this summons was to be August 20. On the same day (July 20), an application was made to the Acting Senior Police Magistrate for the arrest of the applicant on the ground that he was about to leave the country. ·The magistrate granted this application and issued a warrant for the applicant's arrest. After being arrested, the applicant was brought before a bailiff, Mr. Rahim, who examined him regarding his ability to give bail or security pending the hearing of the summons. Having satisfied himself that the applicant was prepared to furnish any security or produce any surety, Mr. Rahim caused the applicant to be delivered into the custody of the officer in charge of the magistrates' lock-up in the Law Courts building, Freetovv-n. Later the same day, ~e applicant was taken to the Freetown Prison, where he was detained until July 26, on which date he moved for a writ of habeas corpus. Sections 4 through 8 of the Debtors Act provide as follows: " 4. If a plaintiff, in any action or suit, brought or instituted in any court for any cause of action of an amount or value of £10 or upwards shaH . . . show to the satisfaction of the court that such plaintiff has a cause of action against the defendant to the amount of £10, and that such defendant is about to leave the [country] ... the plaintiff may ... make an application to the court that security be taken for the appearance of the defendant to answer any judgment that may be passed against him in the action or suit. " 5. If the court ... shall be of opinion that there is a probable cause for believing that the defendant is about to leave the [country] ... and that . . . by reason thereof the execution of any judgment . . . which may be made against him is iikely to be obstructed . . . it shall be lawfnl for the court to issue a warrant . . . to bring the defendant before the court, ss Bankole Jones C.J.