Joseph Kaomba Phiri v Ballore Africa Logistics Limited & The Attorney General ( Malawi Police ) (Civil Cause 714 of 2014) [2021] MWHC 185 (20 May 2021)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO: 714 OF 2014 BETWEEN: JOSEPH KAOMBA PHIRI AND BALLORE AFRICA LOGISTICS LIMITED THE ATTORNEY GENERAL (MALAWI POLICE) CORUM: R. M CHINANGWA JUDGE Sikwese Counsel for the Claimant Liwimbi Counsel for the Respondent Chitao Court Clerk JUDGEMENT 1. Introduction CLAIMANT lST DEFENDANT '2Nd DEFENDANT The Plaintiff claims damages for false imprisonment; loss of income and costs of this action. The claim is opposed in totality. A total of three witnesses were heard in this matter. Below is a summary of their evidence. 2. The Evidence a) Claimants Evidence The claimant states he was employed by the 1st Defendant in 1985 as an Accounts Assistant based at Kamuzu International Airport. On 22nd February, 2013, Mr. Gondwe who was then the 1st Defendant’s employee invited him to his office and when he got there, he found three police officers from Kamuzu International Airport. Mr. Gondwe did not explain to him why he was called in the presence of the police officer but just handed him over to the officer who told him that he was under arrest and he was taken to their offices where he was put in police cell. He was told not to report for work as they were conducting investigations. He spent a night in the police cell and was released the following day on police bail (Exhibit “JKP 1 ’ bail bond) On the 12th March, 2013, he was suspended from employment on allegation of theft of money and abscondment from duties. He continued to report to police in compliance with the bail conditions until the 11th June, 2013 when he was told by the police that their investigations have shown that there is no evidence against him and that his case had been closed. He was never taken before any court of law to be informed of the reasons for his arrest. It is argued that the 1st Defendant arrested the claimant and caused his arrest and detention without any reasonable or probable cause hence the claim for damages. b) Respondents Evidence The first defence witness was William Gondwe, Air Freight manager in the employ of the 1st defendant. He stated that he knows the claimant as Joseph Kaomba Phiri who used to work for the 1st Defendant as an Accounts Assistant and was based at Kamuzu International Airport offices till 30th December, 2013 when he was dismissed for fraud involving the sum of K3,127,400.00. The sum of K3,127,400.00 could not be accounted for at the 1st Defendant’s accounts office where the claimant was working at Kamuzu International Airport. The Claimant’s colleague, Baleke Mwanganda was confronted on the allegations on 19th February, 2013 and in particular to explain on the faulty cash requisition, Malawi Revenue Authority receipts and National Bank teller’s stamps on the said documents that led to the loss of K3,327,400.00. Baleke Mwanganda admitted to have been involved in the fraud when he was interrogated by William Gondwe on of 19th February, 2013 and also implicated the claimant who he alleged was jointly engaged in the fraud with. The findings at the office, showed that the alleged fraud was being committed through fraudulent alterations on cash requisitions meant for customs clearing (Exhibit WG 5A and B); duplicate use of receipts for various cash requisitions (Exhibits WG6A to D) and uttering false cash requisition for shipments as in exhibit WG 7A. Baleke Mwanganda prepared cash requisitions and obtained an approval from the relevant Manager. Upon the approval being granted, Baleke Mwanganda and the claimant used to alter the documentation that culminated into the loss of the funds in issue. William Gondwe formally laid a complaint to the Police at KIA Police Post and explained how the alleged fraud was committed by both Baleke Mwanganda and the claimant. Baleke Mwanganda confirmed his position and implicated the claimant when he was interrogated and detained by the police. By the time Baleke Mwanganda was detained, the Claimant was on leave. On 21st February, 2013, Willian Gondwe summoned the claimant to the office so that the claimant could explain his side of the story. The claimant was taken to KIA Police Post where he was interrogated on 22nd February, 2013 and was released on bail on 23rd February, 2013. After the claimant was released on bail, the 1st Defendant followed due process before it dismissed the claimant. The second defence witness was Inspector Kauanjana Kapito, a Police Officer, stationed at Kamuzu International Airport Police. He stated that on the 22nd February 2013, he and two other Police Officers were called to the offices of Bollore Africa Logistics Limited at Kamuzu International Airport where they met Mr. Gondwe who told them that one of their officers stole money at their offices which was meant for customs clearing processing fees. He further stated that their office investigated the matter. They were told that the officer who was working as an accounts assistant colluded with another person to defraud the company and that the money involved amounted to MK2,670,000.00. Mr. Gondwe later called Mr. Joseph Kaomba Phiri and introduced him to them as the officer he was referring to as having stolen money at their office. The police officers interrogated Mr. Joseph Kaomba Phiri and formally charged him with the offence of theft by servant and took him to the Police station where he spent a night and then was released the next morning on Police Bail. The matter did not proceed to trial because the 1st defendants neglected to give us Witnesses and the evidence that was supposed to be used in the prosecution of the matter. After sometime the police told the claimant to stop honoring his bail conditions as there was no evidence against him. 3. Issue for Determination This court has to determine whether the claimant a) Was falsely imprisoned; b) Is entitled to lost of income c) Is entitled to costs of this action 4. Analysis of Law and Evidence a) Was the claimant falsely imprisoned? In Kwalira v Ganiza [1993] 16(1) MLR 236 (HC) it was held that imprisonment has to be proved first and then that imprisonment should be at the instance of defendant or resulting from defendant’s instructions, direction, or procurement. In Fida Faiti and .9 others v Malawi Telecommunications Ltd [2006] MLR 156 (HC) Justice Manyungwa quotes Unyolo J as he then was stated in the case of Chiumia v Southern Bottlers Limited Civil Cause No. 707 of 1989 (unreported): “The determination whether a defendant made a charge or merely offered information to the police is a factual matter; that all the evidence had to be considered with religious care. Thus, the court should not only look at what the reporter said but also the manner in which the reporter has acted, a factor to be taken into account in determining whether such a reporter merely gave information or whether he procured or directed the police to effect an arrest.” It is not in dispute that the claimant was imprisoned. The dispute concerns whether the imprisonment was as a result of the defendant’s instruction. This calls the court to look at the evidence before it. The claimant said he was taken to an office by the 1st defendants where he met the 2nd defendants the police officers who told him he was under arrest. In cross examination the claimant stated that the police told him that he was being arrested because Mr. Gondwe told them to do so. He also added that the police told him that they had gone to his house but didn’t find him hence their coming to the office. On the other hand, the 1st defendants state they only laid a complaint to the police. In cross examination they added that the claimant came to their office when he was summoned by the police as they were following up on a statement made by Baleke Mwanganda. The 2nd defendants, being the police office, state that the 1st defendant informed them that money was stolen. Then the 1st defendant called the claimant and introduced him as having stolen the money whereupon he was interrogated by the police and then formally charged. In cross examination it was stated that a complaint of fraud was received from an invoice clerk. In the said complaint the claimant was not mentioned. In addition, the police were not advised to arrest the claimant. However, Baleke Mwanganda did mention the claimant in his statement. In reexamination the 2nd respondent stated that Mr. Gondwe reported of the suspects they have and the police started their investigations. They were not told by the 1st defendant to arrest the claimant. Apart from considering what was said as stated in the Kaisi Case sited above, the court should look at how the reporter acted. The 2nd defendants state that they received a complaint, carried out their investigations and arrested the claimant. In the Kaisi case cited above false imprisonment was found because the defendants were told of Mr. Kaisis wrong doing, the police produced a warrant for him and only arrested him. All the actions of the police were directed to Kaisi and nobody else. This case can be distinguished from the Kaisi case in that, after the police were informed of the wrongdoing, they said they investigated the matter and then arrested the claimant. This case can be distinguished in that in this case there is no clear evidence that the 1st defendants told the police to arrest the claimant. This can also be attributed to the passage of time as the incident took place in 2013 and the matter was heard in the year 2020. Surely memories falter. The police were told of the malpractice and they investigated and decided to arrest. The claim for false imprisonment fails. b) Whether the claimant is entitled to lost income. It is on record that the applicant was dismissed from service through a letter dated 30th December 2013. Though the claimant was not prosecuted in the criminal case it does not automatically mean he is entitled to loss of income on account of his suspension and subsequent loss of employment. As held in the Meja v Cold Storage Co Ltd [1990] 13 MLR 234 (HC), the standard of proof is different, in criminal cases the standard is that beyond reasonable doubt and in civil matters it’s on a balance of probabilities. It is this courts view that this matter is an employment matter and the claimant had to prove his case on a balance of probabilities. This court did not have an opportunity to hear evidence regarding the loss of income and loss of employment. The witnesses mainly centered on evidence pertaining to false imprisonment. The claim thus fails for not being substantiated. c) Costs of the Action It is trite law that costs are ordered in the discretion of the court. It is this courts view that each party should bear its own costs considering that the matter on false imprisonment really needed the courts to determine based on the facts before it. 5, Finding The claimants claim fails in its entirety. Any aggrieved party has the right to appeal within 30 days from date of pronouncement. Pronounced this 2^QJLday-of May 20 5