Kamala v Southern Bottlers Limited (Civil Cause 553 of 1987) [1990] MWHC 13 (24 December 1990)

Cth (14 0 => IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO.553 OF 1 BETWEEN: Ce a eae a PLAINTIER _ ; AND SOUTHERN BOTTLERS LIMITED .-......- DEFENDANT CORAM: BANDA, J. esmeraginemmcmciinale: Maulidi, Counsel for the Plaintiff Chirwa, Counsel for the Defendant Liyao (Mrs), Official Interpreter Maore, Court Reporter JUDGMENT The plaintif£ is suing the defendants for damages far ‘¥aise imprisonment. The plaintiff was at the material time employed by the defendants as a salesman. On or about the 29th of Amgust, 1986 the plaintiff started work at the defendants premises at 7.30 a.m. He worked until 12.00 noon when he left for lunch. He was working with four other people normally known as truck helpers. They also broke for lunch together with the plaintiff at 12.00 noon and all came back at 1.30 p.m. On his return from lunch it is alleged that the plaintiff found a safe in his office broken and a sum of K1,069.59 missing. He reported the matter immediately to his immediate boss who was Mr. Matache who was at the material time the Area Sales Manager. Mr. Matache went to the plaintiff's office where he found that a safe in the plaintif£'s office was broken and confirmed that a sum of K§,059.59 wag missing. There are certain faets which ave not disputed in this case. It is not disputed that the house sales office: where the plaintiff was working wag in a fence and had a safe. “= Su.cs sales-offiaxhad also a door and@ shutters. The fence had a gate and a lock. The salesman who was the plaintiff at the time kept the keys both to the fenee gate and the door of the house sales office. The shutters also had locks which were lockable from the inside. Mr. Kamala kept the keys for the shutters as well. The evidence of the plaintiff was that after Mr. Matache confirmed that a theft had occurred he called the Police to come to Southern Bottlers premises and told them to arrest the plaintiff and the four truck helpers. He stated that he was taken to Police Ndirande where he was locked up in a cell together with the truck helpers. He remained in custody for 15 days. It is important, in my view, to. carefully review the evidence relating to the manner in which the Police came,to the defendants premises. The evidence according to the plaintiff was that a defendants’: vehicle was sent to collect the Police with a Mr. Kamfosi, an employee of the defendants. The Police were brought to the defendants premises and that they asked the plaintiff some questions. It was also the plaintiff's evidence that Police made some investigations at the defendants premises before he and the four truck helpers were taken to Ndirande Police. That evidence is similar to what DW3 who was the Police Officer who investigated the case said. According to this witness he received a report from Southern Bottlers and Mr. Matache, in particular, to say that a sum of money had been lost. It was the evidence of this witness that Mr. Matache did not mention the name of the plaintiff when he was reporting the loss of money to the Police. The witness stated that he told Mr. Matache that the Police had no transport and that thereafter the defendants sent a motor vehicle to Police Ndirande to collect the officer. On the other hand, Mr. Matache’s evidence was that he took the plaintiff and four truck helpers to Police Ndirande and after that the Police came to the defendants premises for investigations. Mr. Maulidi seized upon this apparent contradiction between what DW3 said and what Mr. Matache said on how the Police came to the defendants premises. He contended that this was a crucial contradiction on a crucially important point and he submitted that the plaintiff's version was more probable than the defendants. But as 1 have already indicated above, the version of the plaintiff is exactly the same as that told by DW3, the Police Officer. It is clear, in my judgment, that. one‘ of the witnesses was mistaken on how the Police were invited to the defendants premises. Mr. Maulidi has contended that the correct way in which Police were invited was the version made by Mr. Matache and that in taking the plaintiff and four helpers to Police Mr. Matache had already made up his mind that the plaintiff and the four truck helpers were the suspects. It is interesting to note that in one instance Mr. Maulidi was castigating Mr. Matache as a liar and yet in another instance he is saying Mr. Matache is a witness of truth and his evidence must be accepted. Mr. Matache is either a witness of truth or not but he cannot be bcth at the same time. I will deal with this aspect of the matter later in this Judgment. But for now it is necessary to look at the set-up at the house sales office. It is not disputed that the plaintiff kept keys of the main gate and the keys to the door to the house sales office. He also kept keys to the safe. There was some dispute on who kept the duplicate keys between Mr. Nkhonjera and the General Manager. The plaintiff's contention was that somebody had broken into the office to steal money and he stated that he suspected people who kept duplicate keys. It was suggested to him whether he also suspected the General Manager who is one of the people who kept duplicate keys. The plaintiff said he made no exception. As far as he was concerned he suspected all the people who kept duplicate keys. The plaintiff's position is that when he left the office at 12.00 noon the money was intact but when he came back at 1.30 p.m., an interval of 1$ hours, the money was stolen. In cases of false imprisonment, the law, as both Counsel submitted, is well settled. The defendants will be liable for false imprisonment if they laid a charge against the plaintiff on which it became the duty of the Police to arrest the plaintiff. They will not be liable if all they did was to give information to the Police about the loss of money at their premises. See the case of M. J. Hauya v. Cold Storage Co. Ltd. Civil Cause No.274 of 1987 (unreported). As I have already indicated, it is the contention of the plaintiff that Mr. Matache told the Police to arrest him and the four truck helpers. Mr. Matache denied telling the Police to arrest the plaintiff. He stated that he had no powers to do this and that all he did was to inform the Police that there had been a loss of money at the defendants premises. He told the Police that the saiesman in the: section where the money was lost was Mr. Kamala. The Police Officer himself stated that Mr. Matache did not tell him to arrest the plaintiff and the four truck helpers. He stated tha: when he arrived at the defendants premises he made initial investigations. He asked the plaintiff some questions and he alsc asked the four truck helpers: that he checked on the fence near where the house sales office was and that he decided on hit own to take Mr. Kamala and the four truck helpers to Ndirande. Police. He steted that after further investigations he was sa:isfied that the plaintiff was involved because he was unable to jive a satisfactory account of how the money was lost. The -ritness released: the truck helpers from custody after he co. ducted his investigations. I have carefully re iewed the eviderce adduced in this case. I have also caref: ily considered the arguments and the authorities both Counsel Fave advanced ard cited before me. There can be no doubt thet a breaking had occurred at the defendants prenises and a sum of K1,069.€9 was stolen. The breaking and theft must have taken place during the 14 hours lunch break. It was duriig broad day light at or about noon. Equally there can be no diwbt that the defendants sent their Bere, Blene transport to fetch the Police and brought them to the defendants premises. Mr. Matache categorically denied ever ordering the Police to arrest the plaintiff. He stated that he had no powers to order the Police. It is significant to note from the evidence of the Police that when Mr. Matache phoned him to report the -theft no names of suspects or of the plaintiff were mentioned. It is also significant to note that in the letter the defendants wrote to the plaintiff susyending him from duty and subsequent dismissal there is no accusation of theft against the plaintiff. Iam, therefore, satisfied, on the evidence, and I find that the defendants did not lay a charge against the plaintiff upon which it became the duty of the Police to arrest the plaintiff. In my view even if the defendants had conveyed their suspicions to the Police that by itself would not have been sufficient to ground a claim of false imprisonment. Indeed I believe that, in the instant case, there would have been sufficient basis for those suspicions as the plaintiff kept the keys to the howe sales office to the safe and to the gate of the fence. I have considered the cases which Mr. Maulidi cited to support his case. In the case of D. M. Sindi_v_ AMI Rennie Press Civil Cause No.197 of 1982 (unreported) it was held that there was evidence that the defendants had laid a charge against the plaintiff. It was found that when a report was made to the Police it was suggested that the plaintiff had misappropriated funds. There was also the additional evidence that the plaintiff was taken to Police while he was resisting and two members of staff of the defendants accompanied the plaintiff to Police. Similarly in the case of Fordson Banda v Southern Bottlers Civil Cause No.41 of 1987 there was evidence that the defendants told the Police that the plaintiff was a thief. It was the evidence of the Police that on that information they had no choice but to put the plaintiff in a cell. It was also found in that case that the plaintiff was put into custody before any investigations were made. In the case of Malemia v Optichem (Malawi) Ltd. Civil Cause No.378 of 1985 there was evidence that the defendants had accused the plaintiff of stealing fertilizer. All these cases can, therefore, be distinguished from the present case. I am satisfied that the provision of transport by the defendants to fetch the Police cannot on its own be construed as making a charge. There must be evidence to show that the defendants did make a charge against the plaintiff. There is no such evidence in the case before this Court. I find therefore that the plaintiff has not proved his claim, on a balance of probabilities, against the deféndants. I would therefore dismiss his claim with costs. PRONOUNCED in open Court this 24th cay of December, 1990, at Blantyre. A Z sik er OMe & — heh ee es . ’ RUA. BANDA JUDGE