Mwamondwe v Wood Industries Corporation Ltd (Civil Cause 502 of 1987) [1991] MWHC 7 (19 April 1991)

IN THE HIGH COURT OF ~ALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 502 OF 1987 BETWEEt-1: GIFT MWAMONDWE ••••.•.••••..••••.•.••••...• PLAINTIFF and WOOD INDUSTRIES CORPORATION LTD ••••••••••••••• DEF EN DANT Coram: MTEGHA, J. Nyirenda, Counsel for the Plaintiff Chirwa, Counsel for the Defendant Manda/Longwe, Court Reporters Mkumbira/Liyao (Mrs). Court Clerks JUDGMEMT The plaintiff in this case, Gift Mwamondwe, is clai ming from the defendant damages for trespass to the person occasioned by.the defendant's agents without the plain tiff's consent. In his statement of claim, the plaintiff avers that on the 26th day of May, 1987, at the main gate of the defen dant's premises. the defendant's security guards wrongfully assaulted and seized the plaintiff by the armpits and vio lently and forcibly pushed him towards the gate for a dis tance of about 20 metres. and as a result. he suffered dis comfort, inconvenience, injury to feelings and injury to dignity. In addition, he is claiming aggravated damages for being humiliated and rediculed in the presence of members of the public. The defendant, which ts a public corporation dealing in furniture and wood industries. denies the allegations, pleading, inter-alia~ that the right of ad~ission to their premises is reserved, and t~at, in brief, the plaintiff forced himself into the pre~ises whereupon the defendant's security guards held him and told him not to proceed. The defendant further pleads t~at since the plaintiff refused to obey the security gua res' orders to leave the place, he was a trespasser, and ~:thout using any unnecessary force, its servants laid t1eir hands OB hi~ in -order to remove him. 2 / • 0 •••• 2 The plaintiff's evidence was that in May, 1987 he was working for Noor Agencies as a debt collector and on 26th May, 1987 he was detailed to collect debts from the defen dant which had been outstanding for sometime. Having phoned the credit clerk the day before, he went there between 3.00 and 4.00 p.rn. Having reached the gate, he found security guards -one being a Mr. Muleka. He told them why he was there, that he wanted to see the accountant or the credit c on t r o l 1 er • At t h at j u n ct u r e ? Mr • [·1 u l el< a a s :< e d h i m why he wanted to see one of them. The plaintiff told Mr. Muleka that it concerned debts, but Mr. Muleka was not satisfied because he, the plaintiff, did not tell him the name of one of them. According to the plaintiff, having failed to give a specific name, Muleka started ostracising him. He tried to reason with him but to no avail. He asked if he could see the receptionist, but Mulel<a said the duty tofind out whom he wanted to see was his. After he said he wanted to see the receptionist, he started being pushed; Muleka caught him by the armpits and on the chest and was pushed for a distance of 10 yards until another security man came on the scene. That other security guard enquired as to what was going on and after he got the explanation, he took Muleka to t:1eir offices and the plaintiff was allowed to go and see a Mr. Chipofya, and he explainedthe incident to him. Mr. Chipofya directed the plaintiff to see the Person nel Manager. but he was not there. Eventually he transacted his business with the credit controller's department. When he got bacl< to his offices he phoned r-1r. Kunje. the worksho.p manager, who advised the plaintiff to go there so that the guards could apologise to him. He did not go, instead he wrote a letter dated 27th May, 1987, in which he demanded an apology and compensation, or else he would take them to court. It was further the plaintiff's evidence that he was not rude to them; neither did he pass the gate without per mission. Further, his evidence was to the effect that the security guards were not gentle to him. It was the plaintiff's evidence in cross examination that prior to tl1is day, he had been th~re on two occasions and on this day he had an appointment with the credit controller's clerk, only that he was not present, and that the whole area had a fence around its perimeters, that he demanded money and apology because of what the guard did to him. He admitted that he did not suffer loss as such, but humiliation. This, in brief, is-the plaintiff's story. The defendant called three witnessess. . The first witness was Modesto Hilario who in May, 1987 was the defen dant1s security guard at its Blantyre Sai1mills. He told the court that on the afternoon of 26th flay. 1987 he saw the plaintiff coming to the gate. The wjtness asked the plaintiff if he could help him. The plaintiff replied that he trrnuld be helped where he was going. As this vrns contrary to the instr:.ic tions trJhiclt the defendant gave them, he persisted that he could not let him in without knowing where he was going, b~t the plaintiff said that he goes 3 anywhere he wants without being questioned. Meanwhile they had been walking side by side. The witness then decided to block his way after a few yards. The witness explained to the plaintiff that if he (the plaintiff) continued, he (the security guard) would be in trouble with his employers. The witness explained to the plaintiff that the rules stipulate that a visitor has to be asked at the gate why he has come there. and if a visitor wants to see someone. that someone is rung. If he has come for business. they direct him to the right place. But the plaintiff did not listen and when he stopped the plaintiff from proceeding any further, DH2. Muleka, appeared on the scene. When Muleka asked what was the problem, he explained. As they thought the visitor had no manners, f'iulel,a pushed the visitor bacl< to the gateo As the witness was senior to Muleka, he instructed -Muleka not to push the plaintiff, but to let him proceed. After a few days, he heard that the plaintiff had complained and had written a letter, after which he explained to the relevant authoritieso It was his evidence that he had been at the gate for a very long tine, and had never met a man like the plaintiff and if he only complied with their requests to stop, he would never have been pushed. It was this witness's evidence that the plaintiff never said that he had an appointment, never told them that he was a debt co 11 ector, and when they were qua rre 11 i ng. he had already passed the gate, saying the witness vias not the rigtit person to talk to himo The second witness for the defence was Elia John Mule-k.ao lie too was a security guard on the defendant's premises at the material time. It was his evidence that on the material day he was reporting for duty when he saw DW1 talking to the plaintiff. It was his evidence that he asked DH1 what was happening. but before he answered. the plaintiff said he. OW2~ was not the person to talk to him. Despite explaining to the plaintiff that he should follow their rules, the plaintiff could not listen, instead. the plaintiff pushed DW1 to the drain and as a result he grabbed him in order to get support and avoid falling. At that stage, OW1 told him to stop and allowed the plaintiff to go to the offices. The witness explained that when a visitor comes to the gate, he is asked whom he wants to see. When the name has been given, they telephone the person and a guide is given to the visitor to escort him to the offic~s. Apart from security reasons. this witness said, these rules were made to prevent accidents in the factory. In cross examination he denied to have pushed the plaintiff; he denied to have held him in the arm pits; he denied pushing him out of the gate; he denied to 11 a v e he a rd a \'Io rd " a pp o i n t men t " " He f i n a l I y s a i d a I 1 th i s happened because the plaintiff could not comply with their requests. The Pe rsonne I Manager. is a gate third and last witness was Alfred Macheyo. the Officer, but at ~resent acting as Personnel He told the Court that at their premises there manned by guards and these guards are given rules; 4/ 0 0 0 0 C, these rules, according to the witness, are that every visi tor must stop at the gate, where he is asked by the guards where he is going so that the guards can inform the person he wants to see, or section where he wants to go. This is so because there are two roads from the gate; one going to the factory and the other to the offices, and a visitor must be directed to the right section. Moreover. the fac tory is a busy place and there are machinery there; there is also a fence to control people when getting into the factory and , con s e Q u en t 1 y , ~,J hen t he g u a r d s 1;1 e re prevent i n g the plaintiff, they were doing their duty. This then is the evidence before me. But before I evaluate the evidence~ I wish to briefly state the position on the law regarding trespass to the person. There are three recognised kinds of trespass to the person, namely. battery, assault and false imprisonment. In the present case, according to the evidence before me, we are really dealing with battery. The direct application of physical force to the person of another is a battery and may be actionable. The physical appl ic at ion of force must be accompanied by an intention. Such battery may be justified in certain circumstances, for such an assault must be un lawful. I will now turn to the evidence. From the evidence which is before me, it is quite clear that at the defendant's premises there are positioned, at the gate, security guards. According to the undisputed evidence, these security guards are given instructions as to how to handle visitors who go there because of various reasons. These rules, inter-alia, are to the effect that when a visitor comes to the gate, he is asked the purpose of his visit by the guards. After explaining the purpose of his visit, the guards telephone to the required indivi dual or section. If it is all right for the visitor to proceed, he is escorted to his destination. The evidence of DW1 is to the effect that when the plaintiff arrived at the gate, he was asked these questions. but he preferred not to tell them, as a result, he forced his way through the gate, only to meet DW2. The evi<ence as to what happened between the plaintiff and OW2 is not clear. It is, in effect, that when they met, and DW1 explained what was going on between him and the plaintiff. the plaintiff pushed DW2, and in order to avoid falling, he held onto the hand of the plaintiff. On the other hand, the plaintiff said he was held in the armpits and pushed by Dt-!2. In my assessment of the evidence, whatever happened betw~en the two of them. there was an assault on each other. There was, in the cir cumstancest an absence of consent by both of the~~ There was, therefore, an assault, or to be specific, a ,battery. It is Mr. Chirwa•s submission that the defendant's guards were lawfully on duty at the ~efendant's premises and whatever happened there after exchanging ~ords. were as a consequence of the plaintiff's act, because, according to the procedure adopted by the deferdant at its premises, the plaintiff should not have passed the gate to go to the recepti6n. The plaintiff was, therefore.a trespasser. The general principle regarding the eviction of a trespasser from land is that when a trespasser enters someone's land with force and violence, the person whose land is entered may justify turning him out, using no more force than was necessary, without previously asking him to depart. In the present case. no leave was given to the plain tiff to pass through the gate. If leave was given, I see no reason why there should have been an altercation and there was no need for DW2 to push him towards the gate. The plaintiff was, thereforet a trespasser and forcing him back towards the gate was justifiable. The next question I have to decide is force was commensurate. I think it was; he in any way. Neither were his clothes torn. force t'i/aS used. whether the was not injured No unreasonable Mr. Nyirenda has submitted that according to DW3, the rules given to the guards were to serve two purposes, namely, to facilitate the movement of people and to prevent inter ference with production in the factory. In the present caseJ so ~1ro Nyirenda has submitted, the plaintiff informed the guards that he was a debt collector and that he wanted assistance from the reception, he could not have been a trespasser. As I have already pointed out earlier on, even if he explained his business to the guards, he should not have passed them before the guards had phoned the parties he wanted to see. Doing so as he did was a breach of the rules given to the guards. Mr. Nyirenda has also submitted that since the defen dant was in the business of supplying timber, furniture and its byproducts. the nature of the defendant's business is . such that people like the plaintiff could not be prevented from entering the area unless certain requirements are met. The plaintiff was not. therefore, a trespasser -he had leave and lie ence to go into the area. This is a formi dable argument. However, if I accept it I have to examine the law on this aspect. If the original entry was by leave and licence and subsequently the plaintiff was requested to return, but the plaintiff desisted, the plaintiff immediately bee ame a t res passer, and the def end ant was entitled to eject him from the area. For all these reasons, I do not think this action can succeed -the defendant has properly justified the assault to the person. Accordingly, I dismiss the action with costs. .. ,) Pronounced in open Court this 19th day of April. 1991 at Blantyre.