Kamwana v Blantyre & East Africa Limited (Civil Cause 121 of 1985) [1986] MWHC 9 (3 June 1986)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO, 121 oF 1985 BETWEEN: HeR. KAMWANA wie © cee beg l eietetieie | fetes woe Ge) ee PLAINTIFF - and ~- BLANTYRE & CROLL APRICK LTDs as ae 6 ae les DEFENDANT Coram: BANDA, 3. Nakanga of counsel for the plaintiff Makhalira of counsel for the defendant Longwe, Court Reporter Chalunda Mvulaf Official Interpreter JUDGMENT The plaintiff in this action claims damages from the defendants for wrongful dismissal and false imprisonment. There is also a claim for the loss of 200 chickens. The claim for wrongful dismissal was admitted by the defendants through Mre Makhalira and there was, thero- Fore, judgment by consent in the sum of K566.63, plus K75.00 costs. The only issues that wont for trial wore those arising from a claim for the loss of chickons and falso imprisonment. The plaintiff was working for the dofondants as a clerk and typist from Juno 1982 until August 1984, Ho has boon doscribod as copy typist, head clerk and receptionist. It scoms to mo that it is not very mato- rial what description he carried for the job that he performed at the defendant's Estate, It is tho plaintiff's contention that on or about 31st August 1984, the defendants, through its servants or agents, wrongfully directod and procured the police to arrest and take him into custody on a charge of thoft.e. It is the plaintiff's submission that the police after receiving such direction from the defendants arrosted the plaintiff and took him into custody to Muloza Police Station where the plaintiff was detained until the 5th of September 1984. Tho plaintiff, among other duties, was responsible for compiling claims made by people who had supplicd bricks or sand to the Estate. It would Oppear that one of such supplicrs claimed that he had not been paid for a load of bricks which he had sup-= plicd toa the Estate. Tho supplicr's name is Mr. Biliati. The plaintiff's version of the story was that Mr. Biliati hac received the money for the bricks ho had supplied to tho Estate and ‘that such receipt had been made through Mr. Biliati's son. The ovidence was that when Mr. Biliati mace such a claim tho plaintiff was called into the manager's office where he stated that the money was, in fact, recoived by Mr. Biliati's son. PY iad Si ae It was after Mr. Biliati had denied his son receiving the money that tho manager of the Estate decided to call the police to help investigate the matters According to the evidence of Mr. Kapa, the accountant at the Estate, was that when the decisicn to call the police to investigate was made, the plaintiff was present and he made no objection to such a suggestion, It was Mr. Kape's evidence that it was only after the manager saw that there was a conflict between what the plaintiff and Mre Biliati said that he felt the police should be called in to resolve the conflict. It was Mr. Kapo's evidence that it was he who was given instruction to phone Muloza Police Station to ask tho police to come to the Estate and that it was he who sent transport to collect the police officer. Mr. Kape stated that when the police officer, C.1. D. Ndafakale, arrived at the Estate he asked Mre Kamwana, the plaiptirr, to explain how the payment was made and it was the cvidence of the wit- ness that tho plaintiff said that it was Mr. Biliati's son who received tho money, but Mr. Biliati repeated his denial that his son had received the money. It was Mr. Kape's further ovidence that when the police officer saw that the two oxplanations were not clear he decided to take tho plaintiff and Mr. Biliati to the polico. He stated that it was hime self, tho plaintiff, driver - Egesi, and Mre Chifunga who went to Muloza Police Station. He further stated that Mr. Biliati's son also went to the police. Mr. Kape stated that when thoy arrived at the police the plaintiff was again asked to explain and that his explanation was the same, namely, that the moncy was roceived by Mr. Biliati's sone He stated that when Mr. Biliati's son was being asked at the police, he, the witness, the plaintiff, Mr. Biliati, and Egesi were present. He further stated that Mr. Biliati's son denicd receiving any moncye : It was further the ovidence of Mr. Kapo that it was in the after- noon when they went to the police and that he left the plaintiff boahind together with Mr. Egesi, Mr. Biliati and his son. The witnoss stated that it was the manager, Mr. Ridpath, who said that the police should bo called in to further investigate tho matter. The witness did not agree with the suggestion that the manager, Mr. Ridpath, told the police to arrest Mr. Egosi and the plaintiff. He further stated that it was falso for tho plaintiff to suggest that he, the plaintiff, Mr. Biliati and Mr. Egesi, wore locked up befare they were asked any questions at the police; he said he heard the police ask the plaintiff to return tho sum of K90. It was also the evidence of Mr. Kape that they went to the police because the supplicr complained that he did not receive his moneys He stated that it was the pelice officer who said that "wo should go to the police for further investigations". Mre Egesi also gave evidences Mr. Egesi was the driver who apparently took delivery of the bricks from Mr. Biliati to the Estate. Ho stated that he accompaniec the plaintiff, police officor Ndafakale and Mre Biliati, in going to the polico station. Jt was his evidence that at the police, Ndafakale asked them one by one and he was asked what he knew about Mr. Biliati's money and that he told him that he know nothing about the money because he had left the book regarding the bricks which he had delivered to the Estate with the plaintiff. Tho witness stated that the police officer was asking thom soparateoly because the police officer was investigating the matter, He said he slept at tho police station until about 4 otclock the Following day whon he recorded a statement and was later released, It was his evidence that ho and Kamwana slept at the polices, He denice that Mr. Ridpath, the manager, told the police that he and the plaintiff should be arrested. 37 waa Se er I must now consider whether the facts on record and those which I have reviewed in this case constitute false imprisonment. There can be no doubt on the evidence before me that the plaintiff was taken to the police station and was detained there for a numbor of days. There can be no argument that detention at the police station was a total restraint of the plaintiff's liberty; but what I have to decide is whether that restraint is actionable against the defendants. If the defendants, acting through their servants or agents, ordered the police it would be a ground for an action of trespass against the defendants; but if the defendants in doing what they did was merely to state the facts to tho police who, on their own initiative, took the plaintiff in custody this would be no imprisonment or trespass against the plain- tiff. Put it differently, if the defendants' servants made a charge on which it became the duty of the police to act then the defendants would bo liable but they would not be liable if all they did was to give information to the police who acted on their own judgment. Tho impor- tant issue which I must resolve in this case is whether what tho defcn= dants did was merely stating the facts to the police or thoy made a + charge against tho plaintiff. There can be no doubt, and this is admit- _ ted by both parties, that there was an allegation that a sum of K90 : which was due to bo paid to Mr. Biliati, a supplicr of bricks, had been ’ stolen. The plaintiff contended that Mr. Ridpath, the manager, told ‘,the police to arrest him and Mr. Egosi, However, that contention is tin sharp contrast to the evidence which has been adduced by the defen- ‘dants on the same issue, + I have carofully considered those versions of the story and I ‘took the view that the plaintiff was not an impressive witness. He was sevasive in his answers to some of the questions and generally his story did not carry a ring of truth about it. On the other hand, I formod a distinct impression that Kape and Egesi were tmlling the truth and their sterics carried a high degree of credibility. JI am satisfied that what the defendants said happened is consistent with the conduct of the police officer. If, indeed, it is truc, as the plaintiff allcoges, that Mr, Ridpath ordered the police to arrest him and Egesi, then surcly the only people who should have gone to the police shauld have been the plaintiff and Egesi alone, but the evidence was that in addition to Egasi and the plaintiff, Mr. Biliati and his son were also called to the police, That cloarly shows in my judgment that the police officer was’ still investigating the matter and had not decided who should be charged with any offence. In my judgment, the fact that a defendant suspects a plaintiff of any criminal offence does not amount to laying a charge against him. The basis of an action for false imprisonment is the laying of a charge against the plaintiff. I am satisfieu there- fore: that on the basis of the evidence in this case tho cofencants cid not charge the plaintiff with any offence. What they did was mercly to inform the police that there was a matter involving a sum of K90 which should have been paid to the supplier of bricks anc had not been.e For reasons I have given above, I am satisfiod that the claim for falso imprisonment cannot succeed and must fail with costs, ‘In so far as the claim for the loss of 200 chickens is concerned the only ‘evidence I heard on this issue was that the plaintiff was keeping chickens for sale, There is no evidence to show how the 200 chickens died and how that was connected to the imprisonment of the plaintiff. ’ A/vees ~ Aon However, I have already found that the claim for false imprisonment can- not succocd, In view of this finding, it scems to me that the claim for the loss of chickons cannot succeed against: the plaintiff. The whole of this action, apart from the claim for wrongful dismissal, must fail and it is dismissed with costs to the defondants. Pronounced in open court this 3rd eee of Juno, 1986 at Blantyre. Re "he sonia JUDGE