Wakilii

Gandy v Caspar Air Charters Limited (Civil Appeal No. 7 of 1955)

East African Court of Appeal · [1955] EACA 139 · 1950 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the decision of the Supreme Court of Kenya on a counterclaim for damages arising from termination of a contract for personal services
Decision
Appeal allowed. Judgment on counterclaim set aside and entered for appellant. Appellant awarded Sh. 1,435/51 on the claim.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held by majority that the trial Judge erred in basing his decision on a ground not pleaded by either party. The Court made its own findings on the disputed facts and held that the respondent company failed to establish that the appellant wrongfully terminated the contract on 23rd August 1953. The appeal was allowed, the judgment on the counterclaim was set aside, and judgment was entered for the appellant.

Outcome

Appeal allowed. Judgment on counterclaim set aside and entered for appellant. Appellant awarded Sh. 1,435/51 on the claim.

Facts

The appellant was employed as a pilot by the respondent company under a written agreement dated 25th February 1953, effective from 1st April 1953, for one year and thereafter until determined by six months' notice. On 22nd August 1953, the appellant flew a Rapide aircraft (VP-KCV) on charter from Nairobi to Sagana. He experienced a dangerously long take-off at Sagana and reported the aircraft as unserviceable. On 23rd August, he was scheduled to fly the same aircraft to Jinja but refused, stating it was unsafe. Captain Nelson-Gracie, a director, test-flew the aircraft and found it serviceable. A heated conversation followed between the appellant and Captain Nelson-Gracie. The parties gave conflicting accounts: the appellant claimed he was dismissed; the company claimed he resigned. On 24th August, the appellant handed in his uniform and was suspended from flying. On 1st September, he commenced employment with the Aero Club of East Africa. The company counterclaimed for damages for wrongful termination of contract.

Issues

  1. Whether the trial Judge erred in awarding damages on a ground not pleaded by the parties.
  2. Whether the appellant wrongfully terminated his employment contract on 23rd August 1953.
  3. Whether the Court of Appeal should make original findings of fact where the trial Judge left issues undecided or decided on improper grounds.

Orders

  • Appeal allowed by majority decision, Briggs J.A. dissenting.
  • Judgment on the counterclaim set aside.
  • Judgment entered for the appellant on the counterclaim with costs.
  • Judgment entered for the appellant on the claim for Sh. 1,435/51.
  • Costs of the claim in the Supreme Court awarded to the respondents.

Rules and key headnotes

Pleadings — Decision Based on Unpleaded Grounds
A court may not found its judgment on an issue that was not pleaded by the parties, was not before the court, and was neither involved in nor consistent with the case made by the pleadings. Relief not founded on the pleadings will not be given.
Appellate Court — Power to Make Original Findings of Fact
Where a trial judge has left undecided issues of fact necessary to determine a counterclaim, and both parties indicate they do not desire a new trial but wish the appellate court to finally determine the litigation, the appellate court may make its own findings on those issues of fact in the special circumstances of the case.
Termination of Employment — Authority to Accept Resignation
A director of a company has authority to receive notice of resignation from an employee, and such notice is effective whether or not the director has authority to accept the resignation.
Dismissal — Ostensible Authority
Where an employee believes he has been dismissed by an officer of the company who had ostensible authority to dismiss him, the employee's subsequent conduct can be explained and justified on that basis, even if the officer lacked actual authority.
Repudiation — Unilateral Revival of Contract
If an employee wrongfully determines his employment, he cannot thereafter by unilateral action revive the contract. Revival can only be effected with the consent of the employer.

Legislation cited (2)

  • Kenya Civil Procedure Ordinance
  • Kenya Civil Procedure Rules Order 8 rule 6

Cases cited (3)

  • Eshenchunder Singh v Shamachurn Bhutto (20 E.R. 3)
  • Kanda v Waghu ((1949-50) 77 I.A. 15)
  • Blay v Pollard and Morris ((1930) 1 K.B. 682)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Gandy v Caspar Air Charters Limited (Civil Appeal No. 7 of 1955) [1950] EACA 139 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.