Abifalah v. Rudnap Zambia Limited EACA Civ. App. 3-D-71; 30/3/71; Duffus P., Law and Mustafa JJ. A

Abifalah v. Rudnap Zambia Limited EACA Civ. App. 3-D-71; 30/3/71; Duffus P., Law and Mustafa JJ. A.

            The appellant claimed damages for personal injuries caused by the alleged negligence or breach of duty or breach of contract of employment on the part of the respondents, his employers. He made an alternative claim for compensation under the Workmen’s Compensation Ord. (Cap. 263). The plaint was filed on the 21/7/70 and on the 4/8/70 the appellant without the knowledge of his advocates entered into what appeared to be a valid agreement with the respondents for payment to him of the compensation to which he was entitled under the Ordinance. The respondents then filed their defence in which they pleaded that by reason of the agreement of 4/8/70 and the payment by them to the appellant of Shs. 61,773/30, the appellant’s claim both under the Ordinance and under the suit were satisfied and discharged. The appellant then alleged that the agreement was induced by fraudulent and false representations by s. 15(3) such an agreement may be cancelled by the court within three months if it is proved that it was induced by such fraud, undue influence, misrepresentation or other improper means as would, in law, be sufficient ground for avoiding it. The trial judge adjourned the proceedings to enable the appellant to make an application to have the agreement set aside. This appeal was brought on the ground mainly the trial judge should not have adjourned the proceedings but [admitted should have [evidence tendered on the appellant’s behalf that the purported agreement was not proper under the provisions of s. 15 of the Ordinance which required it to be in language understood by the appellant or to be endorsed by the Labour Commissioner.

                        Held: (1) [per Law J. A.] “jurisdiction in respect of workmen’s compensation is, by the clear intendment of the Ordinance, exclusively reserved to district courts, except to the extent that provisions to the contrary is specifically made in the Ordinance” (See ss. 20, 21 and 24.) I accordingly consider that the power to cancel an agreement which is prima facie valid, on any of the grounds specified in section 15(3) of the Ordinance, is exclusively within the jurisdiction of district courts.” (2) “An agreements under section 15 is a bar not only to the institution of proceedings brought in respect of the some injuries independently of the Ordinance but – if the agreement is made after such institution – to the continuation for such proceedings. This appears to me to be clear from a perusal of the provisos to section 24 of the Ordinance, particularly proviso (d), which requires a court to deduct from damages awarded in proceedings brought independently of the Ordinance any compensation paid by the employer, other than compensation claimed in proceedings under the Ordinance or pursuant to an agreement.” (3) “Even if it is a fact that the agreement was not read over and explained to the appellant or understood by him, with the result that the Labour Officer’s endorsement on it was not true, the agreement would not for those reasons only be void. It might nevertheless be advantageous it and rely on it, in which case the employer would be bound by it terms. Such an agreement is, however, voidable at the option of the workman, who can apply under section 15(3) of the Ordinance to have it cancelled as having been obtained by improper means.” (4) “I accordingly find myself in full agreement with the action taken by the learned judge in this case. He was faced with an apparently valid agreement, which he in my opinion rightly considered to constitute a bar to further proceedings in the suit until and unless it was cancelled. He stayed the suit to enable the necessary application to be made.” (5) The district court of the district in which the agreement was made has jurisdiction to entertain an application to have the agreement cancelled and not necessarily the district court where the accident occurred. [Distinguishing ALL MAHDI v. ABDULLAH MOHAMED [1961] E. A. 456]. (6) Appeal dismissed.