Wakilii

Liberti v Kassim (Civil Case No. 265 of 1949 (Mombasa))

East African Court of Appeal · [1950] EACA 4 · 1950 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for damages for breach of contract of employment
Decision
Plaintiff awarded damages of Sh. 9,600 for defendant's breach of employment contract

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that employment was conditional on the issue of an immigration permit and salary was payable only from that date, not from the antedated document. The plaintiff's refusal to proceed without back pay did not constitute repudiation where the defendant did not elect to terminate. The defendant was under a duty to make the immigration deposit; his refusal constituted breach of contract. Damages awarded for loss of salary from permit approval until plaintiff obtained new employment, less estimated earning capacity during unemployment.

Outcome

Plaintiff awarded damages of Sh. 9,600 for defendant's breach of employment contract

Facts

In January 1949, the defendant invited the plaintiff, an Italian residing in Somaliland, to Mombasa to discuss employment on his Uganda farm. The plaintiff arrived on 10th February 1949. After discussions and a farm visit, a written employment agreement was signed on 10th March but antedated to 6th February. The agreement provided for three years' employment at £50 per month plus free housing and profit share, subject to the plaintiff obtaining an immigration permit. On 24th July 1949, the Immigration Authorities approved a Temporary Employment Pass subject to a deposit of Sh. 3,000. Disputes arose over whether the plaintiff was entitled to salary from 6th February and who should make the deposit. The plaintiff contended the defendant should pay both; the defendant refused. The plaintiff remained unemployed until December 1950 when he obtained other employment at approximately Sh. 2,500 per month.

Issues

  1. Whether under the employment agreement the plaintiff was entitled to salary from the date the agreement bore (6th February) or from the date the immigration permit was issued.
  2. Whether the plaintiff repudiated the contract by refusing to go to Uganda unless his salary was paid for the anterior period.
  3. Whether it was the duty of the defendant or the plaintiff to make the immigration deposit required for the entry permit.
  4. What damages, if any, the plaintiff was entitled to recover for breach of the employment contract.

Orders

  • Judgment for the plaintiff.
  • Damages assessed at Sh. 9,600.
  • Costs awarded to the plaintiff.

Rules and key headnotes

Contract Law — Conditional Contracts — Commencement of Obligations
Where an employment contract is expressed to be 'subject to' the issue of an immigration permit, the employer's liability to pay salary arises only upon the happening of that contingency, not from the date the agreement bears.
Contract Law — Interpretation — Effect of Antedating
The fact that a contract document is antedated does not, without more, support a contention that obligations under the contract were to commence from the antedated date rather than from the date performance became possible.
Contract Law — Repudiation — Election to Terminate
Under section 39 of the Indian Contract Act, where one party refuses to perform or disables himself from performing, the other party may elect to treat the contract as at an end, but if he does not signify such election in an unqualified manner, the contract continues and the party in default may still perform or take advantage of supervening circumstances.
Employment & Labour — Immigration Requirements — Employer's Duty
In the absence of express agreement to the contrary, it is the duty of an employer, not the employee, to provide the security or deposit required by immigration authorities for the employee's entry permit, and failure to do so constitutes breach of the employment contract.
Damages & Quantum — Employment Contracts — Assessment of Loss
In assessing damages for breach of an employment contract, where the employee remained unemployed for a period but had earning capacity in temporary work, it is proper to deduct from the contractual salary an amount representing what the employee could reasonably have earned during the period of unemployment.

Legislation cited (1)

  • Indian Contract Act s.39

Full judgment

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

Liberti v Kassim (Civil Case No. 265 of 1949 (Mombasa)) [1950] EACA 4 (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.