Stola v Malawi Book Service (Civil Cause 409 of 1988) [1993] MWHC 46 (11 March 1993)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 409 OF 1988 BETWEEN: A T STOLA.....cc2sccaccecsenesrescens ce senercoeesoe so PLAINTIFF - and - MALAWI BOOK SERVICE. ...6.0+20000%8 o.6:8 8 FH RW mE eo so o DEFENDANT CORAM: MTEGHA, J. Zimba, of Counsel, for the Plaintiff Nyirenda, of Counsel, for the Defendant Mthukane, Official Interpreter Phiri, Senior Court Reporter JUDGMENT The plaintiff in this action is claiming the sum of K4,982.61, being damages for wrongful dismissal and pension func contribution. According to the statement of claim, the plaintiff is claiming loss of salary from 26th March 1887 to 25th April 1988 amounting to K3,294.24, and a sum amounting to K1,434.44 representing the employer's contribution to a pension fund scheme. The cGefendant has Genied liapility. The defendant has, however, pleaded that the money due under the pension scheme has been paid in full. On the other hand, the defendant has counter-claimed the sum of K13,680.00, representing the loss it suffered through the loss of exercise books as a result of the plaintiff's negligence. It is common ground that the plaintiff was employed as a clerical officer by the defendant since November 1976. He was initially based at Blantyre Head Office and worked in various Gepartments, including the main warehouse. He rose in his job and in 1986, he was based at the defencant's shop at Mzuzu as Shop Assistant. It is also common grounc that when the cCGefendant was despatching goods to its various shops in the country the procedure was that the goods would be despatched by the defendant's vehicle to the relevant shop. When Gespatching the goods, the driver of the vehicle that was carrying the goods would also carry two copies of Packing Slip and two copies of invoice. After verification, the recipient would sign the copies, returning the duplicate copies to the driver. After receipt of the goods, they were enterec in the goods received Sook and taken into the warehouse. When the goods were needed by the shop, the Manager would issue a requisition to the Warehouse Supervisor, who would issue him with the goods to sell in the shoo. It is also common ground that on or about the 23rd of May 1986, a consignment of exercise books worth K13,680.00 was received at the Mzuzu_ shop. The person actually receiving these exercise books was the plaintiff, since he signed the packing slip and the Manager signed the invoice. The duplicates were returned. It was the plaintiff's evicence that after he verified the goods and ascertained that they tallied, he signed the packing sli». The invoice was passed on to the Shop Manager, wno verified the quantities and signed the invoice. It was his evidence that if the goods were destined for the warehouse, they were sent there; if they were destined for the bulk store, they were sent there, ana if they were for the shop, they were displayed in the _= shop. In this particular case, the goods were dcisplayeGd in the shop for sale. I will pause here and look at the evidence for the defence. It was the evidence of both Mr Mvula and Mr Nyirenda, DWl anc DW2 respectively, that the goods were sent to Mzuzu by their van, accompanied by the packing slip. They expect that somecne in Mzuzu would acknowledge receipt of the goods by sicning the packing slip, a copy of which is returned to them, and whenever the packing slip has been signed, it means that the person signing has taken possession of the goods. Mr Mvula, wh: is Assistant Trade Manager »oased at the Head Office, further said that the goods were supposed to be entere¢ on a card, called "Bin Card" ana were also supposed to be entered in a “goods received" bock arid placed in the warehouse and issues out of the warehouse were supposed to be indicated on the card and goods received book. Both these witnesses said that the purpose of entering the goods into the relevant books was *o trace the movement of the goods. They went on to say that in the instant case the exercise books were sent to Mzuzu shop ana they received a copy of the oacking slip indicating that Mzuzu had received tiie exercise books; but later on Mzuzu people said they did -ot receive them. The evidence of PW2. Sam Robert Theulo Phiri, who in May 1986 was Assistant Branch Manager at Mzuzu, was that sometime in 1986 there was stock-taking at Mzuzu shop. They had a shortage of abceut K22,000.00 and in trying to find out how tne shortage came about, the Manager, Mr Banda, went throush the books ana came across an invoice for exercise books. Banda said he did not receive these exercise books. However, it was his evidence that after signing the packing slip, an invoice bearing the value of the goods is given to the “Manager, who is supposed to verify the cuantity and price, and it was the Manager who entered the goods, which meant that he must nave seen the goods. Further, it was his evidence that the goocs, when received from Blantyre, would go either te the warehouse or into the shop and not into the warehouse at all times. This piece of evidence is, as I have pointed out earlier, corroborated by that of the plaintiff. He further went on to say that the fact that the exercise books were missing, was reported to Police, who arrested him anc placea him on remand; anc having stayeG on remand for three months, he was taken to court on criminal charges. but at the ena of the Cay, he was accuitted. When he was acquitted, he went back to ask for his job and pay. Meanwhile, on 26th March 19€7, the plaintiff was interdictec in these terms: “Dear Sir INTERDICTION On 20th May, 1986 Blantyre Warehouse sent 100 packets cf 80 page and 100 packets of 40 page exercise books valued at K13,680-00 to Mzuzu Shop, receipt of which you acknowlecged by signing packing slip No. 77i. During the mid-year stocktaking there was a shortage anc it was ciscoverecé that the books were nowhere to be seen. You were asked to give an explanation, but up to now there has not been a valid explanation as to the wnereabouts of the exercise dooks. In view of this, you are being interdicted from duties without pay with effect from 26th March, 1987. I further wish to advise that shoulé you fail to trace the exercise books, Management will recommenc to the Eoard that you be dismissed from Malawi Book Service. Yours faithfully M. P. H. Longwe for: GENERAL MANAGER" When he went back to ask for his pay anc to be reinstated after his acquittal of criminal charges by the Court, his services were terminatec by a letter datec 25th April 1968, in these terms: "Dear Sir TERMINATION OF SERVICES At the last Board Meeting it was resolveac that, although you were accuitted in a court of law on technicality, your services with Malawi Eook Service be terminated with effect from 26th March, 1987 mecause of negligence and inefficiency. The Assistant Accountant (I) will work out what is Cue to you from your pension contribution after taking into censideraticn what you owe the orcanisation. Yours faitnfully M. P. E. Longwe MANAGSR® It snoulc also be notec that when the plaintiff was interdictec he wrote to the General Manager of Malawi Book Service on 27th March 1907 In his letter he triec to explein what actually happened. Unfortunately, the letter is full of hearsay, so that I have paic very little attention to it. However, whet comes out clearly is that the Gisaopearance of the exercise books hac puzzlec all the staff at WMzuzu shor, and that they coulc nct clearly pinpoint at anybody wno could have causec the Cisappearance of the exercise books. What comes out clearly from this evidence is that the beoks worth 413,680.00 had Cisappearec. It is aiso gear that the plaintiff sicned for the receiot of exercise Sooks. It is also clear that although all x nich were sent to the defencant's shops were te se = te the warehouse from where they could ve crawn by censiigns @ requisition, at Mzusu shop there was a oractice that the goods. when receivec, could be cCisoslayec in the shop straignteway when necessary. Tne first point which Mr Nyirenda has taken up is that according to the defendant's witnesses, the plaintiff had no cS Giscretion to take the goods into the shop before they were recerced into the warehouse, since this was é@ direct »reaci ef the standing instructions, ana this omission led to the failure to trace the whersasdouts of the exercise books, anc, Gespite the fect that the olaintiff was civen time to fine them. he failed to Go so. The cefencant was then entitled to Cismiss the nlaeintiff, or to suspenc nim. If f take the view that the plaintiff did not follow the instructicns to be follewec on receipt of goods, the defencant was entitled to CiSMiss Om summerily. Again, even if tne plaintiff Gisplayecd the goocés in the shop, he failec to account for them. I think that from whatever angle one look at the Cisapwearance of the exercise sooks. the plaintiff was to Dlame anc the Cefencant was entitlec to Gismiss nim. The aefendant could even have dismissed the Shoo Manager, for he too was neglicent. There was, therefore, no wrongful Gismissal on the vart of the defencent. tT will now have te consider whether the Cismissal coulc be backéatecd from the Gate when the plaintiff was suspenced., It is trite law that dismissal from emoloyment cannot be backcatedc., The plaintiff is claiming waces accrued Guring the perioG when he was under suspension. He was suspendec on 2$th March 1987 without pay, anc he was dismissecd cn Z5th April 1966. Mr Nyirenda, on behalf of the defencant, has submitted thet during the period of suspension, the whole contract of employment is suspended; there is no ebligation on the pert of the emgloyer to pay wages; similarly, there is no cvligation on the oart of the employee to rencer his services ~- he cited the case of Celanese Bird -v- British Celanese Ltd (1945) K. B. 336. In that case, Scott, L. J., had this to say at page 241: “The clause operates in accordance with its terms; the whole contract is suspended, in the sense that the operation of the mutual opligations of both parties is suspended; the workman ceases to be under any present Guty te work, and the employer ceases to »s uncer any consecguential duty to pay." Mc Wyirenda has also relied on the case of Greyson H Mkwapatira ~v- Malawi Railways Ltd, MSCA Civil App. No. 5 of 1978 where Skinner, C. J., as he was then, stated: “Where, in a contract of employment, there is a2 term, such as the present one, emocwering the employer tc suspend the employee from Cuty pending investigation ef his conduct, the effect is that, when the employee is suspended from cuty, the whole contract is suspended; the operation of the mutual obligations of the parties is suspended. The emoloyee ceases to be under duty to pay his wages other than as specified in the terms...." The same principle wes upheld in the case of P F Gwembere ~ v- Malawi Railways Ltd., MSCA Civil App. No. 7 of i979. I agree that this is the position cf the law: but it applies only where there is provision for suspension in the contract of employment. In the cases of Mkwapatira anc Gwembere, which are cited above, there were specific provisions in the contracts of employment, namely, Clause 6 of the Disciplinary Code, which read as follows: ‘Where an employee is suspected of having committed an offence which seriously affects the safety or security of trains, the working of the Railways or property or cash may be suspenced from cuty on half pay...-" Similarly, in the case of Bird -v- British Celanese Ltd, the Court was interpreting a provision of the contract of employment which stated that for various transgressions inclucing refusal to obey an order, the employer was entitled ‘temporarily to suspend the workman from his employment’. The cuesticon which I have to Getermine here, therefore, is whether, in the present case, there was a orovision in the contract of employment which entitled the defendant to suspend the plaintiff without pay, or even the provision for mere suspension. Mr Nyirenda has submitted that the plaintiff had conceded that he coule be suspencecd. I Go not. with respect, agree with this submission. I can see nothing of the sort, both in the pleacings anc in the avndeaes that wes adduceca before me. The proper thing, if Mr iyi rend was relying on this, would have been thet @ copy of the cenditions of service shovld have been tendered in Court. cr at least some evidence shovld have been adccuced., The position is this, that, where there is a contract of employment, anc there is no orevision in that contract for the suspension of an employee on commission of various transcressions, an employer is not entitled to suspend: ne is, of course, entitled to cCismiss an emp ‘loyes. He is, however. obliged to pay his employee up to the date of dismissal. For these reesons, I reject Mr Nyirenca's argument and instead I awarc the plaintiff the sum of K3,294.24 as loss of salary from 26th March 1987 to 25th April i$sé6. cs The plaintiff has also claimed the sum of Ki, 434.44, being loss of employer's Pension Funda contridution. i Gecliine to awerd this sum, for the reason thet there is no basis for the award. The. pleadings have not Cisclosec any obligation er agreement that the defencant was supposed to contribute to the pension fund, or inceea, tc pay the contributions to the pleintiff in a case where he is dismissed. I alse decline the award of K253.33 as pay in lieu of notice. It is quite clear that the defencant was entitlieca to summarily dismiss the olaintift in the present circumstances. However, this is not the end of the matter. The defendant has counter-claimed the sum of K13,.560.0C as loss suffered by the defendant Gue to the negligence of the plaintiff. Mr Nyirenda has submittea that the olaintiff was eclicent, in that he signed for the delivery of exercise books without ensuring that the exercise book had been physically delivered into the cCefendant's shos; that he feiled to ensure the receipt of the exercise books was properly entered in the defendant's ‘Sook and stock cards, and that he feiled to ensure that the stocks issuec to the shop wers properly recordec on the stock cards. It was hr Nyirenda’s submission that according to the evicence, all goods, whether they were in small or large quantities, were to be consigned to the warehouse, and whether the pla nintifft had Ciscretion or not, that did not relieve him of his oDligation to account for the goods and it was imperative fox the olaintiff to maintain the records in order to enable Management to trace the goods. He was, therefore, negligent and the Sefencant is entitled to counter-claim in negligence. He cited to me the case of Lister -—v- Romford Ice and Cold Storage Co. Ltd. (1957) AC.555.- I will revert te this case at a later stage. I woulda, however, consicer the uvestien cf nec sligence. It is not Cisputec that the Llaintiff was a Shoo Assistant. Tt is also not in dispu te that at times he assistec in receiving the goods from Heac Office anc signing for the receipt thereof. He was —— to enter them in the qceods receivec book; but he dic not; he was suopesec to teke the goods to the warehouse — where they woulc be issuec. inte the shop. In the instent case he cid not co this. put instead he took the goods to the shop without prover documentation. Whether the goods were solc or nct it acpear to me, as I have held earlie on, that the plaintift wes negligent anc the cefencant was enti tlea to Gk smiss him because of this omission. The counter-claim is basec. uron this negligence. The position of the law reg carding an employee's liability to his employer for negligence is this: If an ol is employea by the eaployer on the understancin¢g Oo “eS a wo a tad yj oO Lote rye 7 emoloyee is skilled to perform particular duties, D0 MS my ocr és oo td cho ch ct @ 1 m R n A an implied term in the contrac of employment that he emoloyce will perform the Guties with reasonable care. f£ it transpires that the employee has committed this xSreacn of his implied Cuty of care, the employer is entitlec te recover in respect of rhak " damage if the employer suffers Camage . This was, in effect, the ratio decidendi in the case ck Lister -v- Romford Ice aneé Cold Storage Co. Ltd. cited to me by Mr Wyirence. The headnote to that case states: "A lorry Griver, employec Sy a compeny, took his father with Aim as a mate. In becking the lorry he injured his father. who in an action ageinst the compan recoverec damages in resoect of the criver’s negligent ect. The company brought an action against the Griver claiming, as joint tortfeasor, it was entitled (1) to contributions from him uncer the srovisions cf section 6 of the Law Reform (ilarried Women on Yortfeasors) Act. 1935 and (2) te damages for oreach of an implied term in his contract of service oa that would use reasonable skill and care in driving....feld, that tne ariver was uncer a contractual obligation of care to his employers in the performance of his duty as a Griver...the cempany was entitled te recover from the Griver Camages for moreacn of that contractuel obdligation...." Viscount Simonds hacG this to say in this case: “it is, in my opinion, clear that it was an imolied texrm of the contract that the apocelliant would verform aa cuties with proper care. The position cf law s stetec. Sy Willes, J. in Herner -v-— Cornelius (1853 5 C. B. (NS) 236, 246) has never Seen cuestioned: ‘When @ skiiled la bourer'. ne saic, ‘artizan or ertist is eamployec, there is on his part an imoiliecG warranty ¢ is reasonably competent to the task he kes - Spoundes peritiam artis. Thus if an cy, @ Watchmaker cr an attorney be employed Lox ‘rG, they each impliedly undertake te vossess anc exercise reasonable skill in their several axtS...-.8n express promise or express renresentation A, icular case is not necessary’ Io ses ne greuna for excluding frem, and every ' ground £or smclucing in, this catecory ea servant who is employed to Crive a pore ys which, ariven without care, may mecome an engine of destruction and involve his master in very grave liability....* sp Again, it is well-settled that an employer will not be entitlec to any indemnity or Gamacges from the employee LE at the time when thse employee's allegec breach of his auty of are tock place when the employee was ceing employed on s than those in which he professed to be skilled at the time cf his engagement: or if the nec fLigence of the empioyer or of some cther anc€ senior employes cof his has trivutec to the cCamace. This was the vsosition in the e of Harvey ~v- R G O'Deel Ltd (1958) 2 ¢. B. 78. fw a cr r 1 Fh Kh ra) a in that case the facts were that the olai Cc one, Galway, were employed anc engagec) on some repair works at hurley on oehalf of the defencants. Gelway, who was a storekeeser, owned a motor-~cycle combination and on ma Ly occasions he usea this motor-cycle for the cdefencéants'? Susiness. peying his own petrol, but when he usec it for the cefencants’ business he received a travel allowance: he peic, just like other workmen when trevelline out: maic for travelling time anc alsc time for meals “Fe out for the whole day. When Galway wes to go to Hurley he was told tc take the inc after working on the repair works it became ox them to ¢co inte Maicenheac to ge some more materials anc to have a meal. They went into feidentens. anc on theix way back, Gelway's motor-cycle was in collision with a motor cer. Galway cied, but the Dla LEELEE wes injured. The accident was cue in part to alway's negligence. The plaintiff suee the defendants for Canages ft was argued, on »ehalf of the aefencants, inter alia, thet Galway had impliedly. by makinc his motor-cycle combinetion available for his emoloyers' Dusiness, acreec to incemnify them if he committed an act of negligence. McNair, J. hac tnis to say at 9.106; wo | "Gaiway was engcagecé and employed by the first Cefendants as e storekeeper: aS a concession to the first defendants he from time to time usec his motor- cycle on their business and was so using it at the time of accident. I find it difficult to see on what ¢rounds of justice and reason I should hole that by Making his motoxr-cycle combination available fer his employers’ Dusiness on @ particular occasion he should be hela in law to have impliedly agreecé to indemnify them if he committed a casual act of neclicgence.? ¢ ¥ c in tne instant case, can it be said that there was an implied terin of contract that the plaintiff woule indemnify the cefencant or make good of any loss caused by shortage due to ais negligence? I do net think so. The plaintiff 7 was employec as a Shoo Assistant. but from time to time he was Cetaiiec to co the work of a receiving clerk or warehouse supervisor. Such implied term could act have arisen. Eo onave earlier on held that the plaintiff wes negligent in not complying with the normal srocedure to be fcilowee on receipt of cecds. But there is also evicence that the shoo or Branch Manacer was also necligent. He Gic not check to verify if the goods haé been received or put into the warehouse, so that the loss, if any. was also contrliouted to by the cdefendant's senior emoloyees. in Jones -v- Manchester Corporation and Others (1952) 2 All ER 125, it was held that an employer is not entitled to an incemnity from an employee if he has himself contributeé to the damace cone by the empleyee or bears same responsivxility for it or if the neclicence of some senior employee has contrioutec to the camage. In tne oresent case, the loss of ithe exercise Dooks, on the evicence, cannet be attributec to the plaintiff's negligence only. Neither did the plaintiff vorofess to be a sxillec employee so that this Court can imply a cuty of care ror these reasons, the counter-claim mest ffeil. tI Gismiss it. in the circumstances, I enter jucgment for the plaintiff in the sum of K3,294.24. and costs for this action. PRONOUNCED in cpen Court this llth day of March 1993, at Bantyre.