Mpereya v Press Bakeries Limited (Civil Cause 547 of 1985) [1987] MWHC 13 (29 May 1987)

Coe Fs SECRETABY we # IN THE HIGH COURT OF MALAWI, BLANTYRE PRINCIPAL REGISTRY CIVIL CAUSE NO.547 OF 1985 BETWEEN: FOCUS LEWIS MPEREYA ......-.--+esecceeee+- PLAINTIFF AND PRESS BAKERIES LIMITED .......-.0-e-++++e+ DEFENDANT Coram: BANDA, J. Kaliwo, Counsel for the Plaintiff Hanjahanja, Counsel for the Defendant Namvenya, Court Clerk Phiri, Court Reporter Sf JUDGMENT The plaintiff in this action is claiming damages from the defendants for false imprisonment and malicious prosecution. There was also a claim for wrongful dismissal but this was abandoned in course of the trial together with the claim of arrears for one month's salary. The claim for 3 months arrears of salary still stands. The plaintiff was employed at the material time by the defendants initially as a Senior Accounts Clerk and later he became Stores Controller. The plaintiff's services were terminated by the defendants on 13th August 1983 and the plaintiff was at that time receiving a salary of K230.50. It was the evidence of the plaintiff that he was not told the reasons for the termination of his services but he recalls something happening at his place of work on 9th May 1983. The plaintiff stated that at about 10.00 a.m. the Assistant General Manager at that time informed him that CID officers from Blantyre Police would come to see the plaintiff before noon to investigate about the bread flour. The police officers came about 1.30 p.m. when, according to the plaintiff, they went straight to the General Manager's office. He stated that after an hour the police, accompanied by the General Manager, came to his office where. the General Manager introduced the police to the plaintiff. It was the plaintiff's evidence that he gave a seat to the police officers who declined and said that they had come to pick him up and so he was taken to Chilomoni Police Station. The plaintiff stated in his own words "investigations concerned me as I was the head of stores". It would appear that a consignment of bread flour was received in the months of August and October 1982 by the defendants. There were apparently 1,620 bags of rotten. flour which a Mr. Karim, from Limbe Bakery, had offered to buy because he. wanted to use it as stock feed. Arrange- ments were therefore made for Karim to collect the flour and he started collecting it on 24th November 1982 and it went on for three days. The plaintiff stated that on or about 27th of November 1982 Karim came to see the Assistant General Manager and claimed that he had not received all the bags of flour which he had bought from the defendants. The plaintiff was therefore asked by the Assistant General Manager to go to Limbe Bakery to verify the allegation which Karim was making. It was the plaintiff's evidence that he was unable to verify the claim made by Karim because he could not count the bags as they were not properly stacked and were merely heaped together and that he therefore found it difficult to count them. It is not disputed that the plaintiff was arrested from his place of work by the police and was taken into custody. He was released on bail on 9th of June 1983... It was the plaintiff's evidence that when he reported for duties on 14th of June 1983 he was told by the defendants to wait and was asked to be reporting every week. Subsequently the plaintiff received a letter dated 8th November 1984 from the Officer-in-Charge, Blantyre Police, in which it was stated that there was no evidence against the plaintiff and that the matter had been closed. The plaintiff has contended that the defendants instigated the police to arrest him because the police, when they arrived at the defendant's premises, went straight to the General Manager's office and that therefore the General Manager must have directed the police to arrest him because it was the General Manager who brought the police to the plaintiff's office. Mr. Kaliwo, who appeared for the plaintiff, has invited the Court to consider the evidence very carefully as there are differences between the plaintiff's story and that of the defendants. It is Mr. Kaliwo's contention that just as adultery is not always proved by direct evidence so too in this case the Court must draw the necessary inference from the facts available that the defendants instructed or procured the police to arrest the plaintiff. Mr. Kaliwo submitted that the foundation for such inference is that there was communication between the police and the defendants resulting in the Assistant General Manager warning the plaintiff of their impending visit to the defendants premises for investigation. Secondly, Mr. Kaliwo contended that Press Bakeries had received the complaint that there had not been full delivery of the bread flour to Karim and that therefore the defendants had a motive or interest in investigating where the bags were and that it was this motive or interest that prompted them to report the case to the police. Mr. Kaliwo also \ \ \ \ \ referred to the evidence that police came to the General Manager's office and that the police were introduced to the plaintiff by the General Manager. He contended that it was abnormal for a company who had not made a complaint to introduce the police to the plaintiff. It was Mr. Kaliwo's contention, therefore, that the only reasonable infererce that can be drawn from that foundation is that the defendants had procured the police to arrest the plaintiff. On the other hand, as against the plaintiff's evidence, I must consider the defendants evidence. It is perhaps important to observe that neither the General Manager nor the Assistant General Manager and Karim from Limbe Bakery were called to give evidence in this case. The evidence for the defendants is that the police received information that 461 bags of wheat flour were missing and that that information was received between May and June 1983. It should be remembered that the transaction involving the delivery of flour to Limbe Bakery took place in November 1982. It was the evidence for the defendants that as a result of that information police went to Limbe Bakery where the loss was discovered and that it was only after such visit to Limbe Bakery that the police went to the defendants premises where they met the General Manager. It was the defendants evidence that it was after the police had informed the General Manager the purpose of their visit that they went to the plaintiff's office. The first witness for the defendants, who was one of the police officers concerned in the investigation of the alleged theft, stated that the matter of theft of wheat flour was not reported to them by the defendants but that they received such report through a police source. It was also the evidence of the first witness for the defendants that as far as he was concerned, being the officer investigating the case, there was sufficient evidence to take the plaintiff to court for prosecution. He therefore doubted the bona fides of the letter written by the Officer-in-Charge, Blantyre Police, stating that there was no evidence against the plaintiff. He stated, however, and this is not disputed, that the plaintiff was never taken to court for prosecution. No case file was opened in any court against him. It was this witness's evidence that as far as he is concerned the plaintiff is still a wanted man and that the plaintiff's name has been published in the Police Gazette as a wanted man. Mr. Hanjahanja, who appeared for the defendants, has submitted that there is no evidence to hold the defendants liable. He contended that there was no direct or any other evidence at all to suggest that the defendants through its servants or agents on 9th May 1983 directed, procured or instructed the police to arrest the plaintiff and take him into custody. Mr. Hanjahanja contended that the introduction of the police to the plaintiff cannot per se be construed as directing, instructing or procuring the police to arrest the plaintiff. It was Mr. Hanjahanja's further submission that if the source of the report was the defendants then the defendants should have reported the matter early in November 1982 when the incident occurred. The clear inference, Mr. Hanjahanja contends, was that the source of information to the police could not be the defendants. He submitted, therefore, that the defendants did not report the case to the police and that the evidence of the first witness for the defendants was never discredited and that there was therefore no basis to disregard his evidence. There can be no doubt on the evidence before me and I find that there was a restraint on the liberty of the plaintiff when he was taken into police custody but the issue I have to determine in this case is whether such restraint of liberty of the plaintiff was carried out on the instructions, direction or procurement of the police by the defendants. The crucial issue I have to decide in this case is whether the defendants through their servants or agents made a charge against the plaintiff. There is no direct evidence to show that the defendants did make a charge against the plaintiff. Indeed that is conceded as much by Mr. Kaliwo but has urged this Court to draw such an inference from the circumstantial evidence to which he has referred. While it is true that the police held discussions with the General Manager at the defendants premises, there is no evidence to disclose what was discussed. There is direct evidence to the effect that the defendants were not the source which reported the allegation against the plaintiff. Indeed the fact that the police went straight to Limbe Bakery after receipt of the information would indicate that it was either Limbe Bakery who had reported the missing of the bags of flour to the police or their own source. In my judgment the fact that the plaintiff had been warned by the Assistant General Manager that the police would visit the defendants premises to investigate the disappearance of bread flour is neither here nor there. Nor in my judgment does the fact that the General Manager introduced the police to Mr. Mpereya advance the plaintiff's case any further. I am satisfied, in my judgment, that neither the Assistant General Manager's information to the plaintiff nor the introduction by the General Manager of the police to the plaintiff can be construed as making a charge against the plaintiff. It seems to me that it was perfectly proper and correct courtesy to follow for the police to call upon the General Manager as their investi- gations concerned a senior officer of the defendant company. In the absence of any evidence on what was discussed between the General Manager and the police, it would be wrong in my judgment to say that the General Manager must have instructed the police to arrest the plaintiff. I am satisfied, therefore, that there is no evidence to show, on a balance of probabilities, that the defendants made a charge against the plaintiff. The claim for false imprisonment against the defendants must therefore fail. The evidence before the Court, and it is evidence which has not been disputed, is that the plaintiff was never prosecuted for the alleged offence in any court of law. However, it is Mr. Kaliwo's contention that when the plaintiff was released on bail it emanated from the acts made by the defendants in reporting the plaintiff to the police. He submitted that those acts constituted a prosecution. Mr. Kaliwo, with respect, did not cite any authority to support that proposition. The Dictionary of English Law Volume 2 defines prosecution as a proceeding either by way of indictment or information in the criminal courts in order to put an offender upon his trial. In my judgment, a prosecution exists where a criminal charge has been preferred against an offender before a judicial officer or tribunal. There is no evidence that the plaintiff was taken before any criminal court. It is not necessary, in my view, to consider if the prosecution was actuated by malice as there was no prosecution. Consequently I am also satisfied that there is no evidence on a balance of probabilities to sustain the claim for malicious prosecution. That claim too must fail. An issue has been raised in this Court on whether or not the plaintiff received the terms of conditions of employment which came into force on lst June 1979. The defendants have contended that the plaintiff was aware of the new conditions of service because they were given to each head of section whose duty it was to interpret the conditions of service to those employees working under him. It is not disputed that the plaintiff was head of the stores section. I am satisfied that the plaintiff was aware of the conditions of service which came into force on lst June 1979 and which superseded all previous conditions of service. The plaintiff was suspended from work on 13th of May 1983 in accordance with the provisions of Section 27 (b) of the Conditions of Service. According to that provision an employee suspended received no pay for a period of twelve working days. In those twelve days the management must decide as to the final course of action to be taken against such an employee. Such final course of action was not taken until 9th August 1983. It is to be noted that since the plaintiff was released on bail he reported to the defendants with a view of being reinstated but instead he was told to be reporting every week. In my judgment I find that this was the fault of the defendants for not making a final decision soon against the plaintiff and the plaintiff is therefore entitled to be paid for the period lst May to 12th May and from 26th May to 3lst May. He was also entitled to be paid full salary for the months of June and July and for the 9 days up to 9th August. This would therefore mean that for the 2 months of June and July the plaintiff is entitled to full salary at K230.50 and he is also entitled to a salary for 26 days. That I believe | would bring the total to K661.00. I have been informed that the defendants have made a payment into court in the sum of K922.00 and that money was paid in on 5th of May 1986 and it has not been taken out. As I have already indicated in this judgment, the claims for false imprisonment and. malicious’ prosecution have failed and therefore these claims are dismissed with costs. It is clear law that where payment has been made into court and the plaintiff recovers an amount less than the amount paid in court, the defendants are entitled to recover costs from date of payment in. There will be judgment for the plaintiff for the sum of K661.00 being arrears of salary for 2 months and 26 days. Consequently the plaintiff will recover costs on the claim of arrears of salary up to the date of payment in and thereafter the defendants will recover costs up to date of judgment. Both these costs will be on subordinate scale. PRONOUNCED in open Court this 29th day of May, 1987 at Blantyre. fox hos R. ‘A Banga JUDGE