Msiska v Malawi Iron & Steel Corporation Ltd (Civil Cause 193 of 1987) [1990] MWHC 16 (16 March 1990)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO.193 OF 1987 BETWEEN: KINGWELL J. MSISKA .....ccccecceeescccccces .s. PLAINTIFF . AND MALAWI IRON & STEEL CORPORATION LTD. ......... DEFENDANT CORAM: UNYOLO, J. Msiska, Counsel for the Plaintiff Msisha, Counsel for the Defendant Chigaru, Official Interpreter Gausi (Mrs), Court Reporter JUDGMENT In this case the plaintiff, by his writ and accompanying statement of claim, claims against the defendant firstly the sum of K400.00 being money wrongfully withheld by the defendant from the plaintiff; and secondly damages for defamation. The defendant in its defence, admits having withheld the K400.00 but denies that it did so unlawfully. As regards the second head of claim the defendant denies the alleged defamation and finally the defendant counterclaims against the plaintiff the sum of K408 being cost of replacing four wheelbarrows lent to the plaintiff. _ The plaintiff is a humble building contractor. He does sn all sorts of odd jobs. The defendant, on the other hand, needs no introduction. Its very name speaks for itself. Some time in November, 1986, the plaintiff was engaged by the defendant to construct an oven at the defendant's premises. Accordingly, the plaintiff came right on with a team of six builders and supporting workmen and started construction of the oven. It was agreed that the defendant would provide all the requisite materials namely bricks, sand, stone, cement, the whole caboodle. The plaintiff would only charge for labour. It was also common case that the plaintiff's workmen did borrow and use the _ defendant's wheelbarrows as the work progressed. The oven was constructed and there is no doubt on the evidence that the work was done to the defendant's satisfaction. All that remained, therefore, was for the defendant to pay the money due to the plaintiff and the agreement. This brings us to the llth day of December, 1986. On that day the plaintiff went to the defendant's offices to get his money. It is common case that he was there handed a letter, Exhibit Pl, I.y the defendant's cashier where it was stated that out of the money the plaintiff was entitled to the defendant had withheld the sum of K400.00 on account of some wheelbarrows which were riissing from the defendant's foundry. twill give the full text of the letter in question later in this judgment. The sum of K1,311.00 was due and payable to the plaintiff. A cheque for this amount was issued by the defendant but the cashier gave the plaintiff the sum of K911.00 only having taken off, that is, the K400.00 mentioned above. Such, in brief, are the undisputed facts. It now remains to me to decide whether the plaintiff has proved his claims against the defendant. I will deal first with the first of the claims, namely the claim for the sum of K400.00. From the narrative I have given above, it will be noted that the defendant's case is that it withheld the said sum of K400.00 because its wheelbarrows, four in number, missed during the time the plaintiff and his workmen were at the defendant's premises constructing the oven. Clearly the implication made by the defendant here was that the plaintiff or his workmen or both were responsible for the alleged missing of the four wheelbarrows. The plaintiff and his witness, PW2, vehemently denied being responsible. Perhaps I should mention that the said PW2 was actually one of the plaintiff's workmen who constructed the oven concerned. It was the evidence of both the plaintiff and PW2 that they borrowed only one wheelbarrow from the defendant whenever they needed it simply for the purpose of mixing mortar and that the same was returned to the defendant before the end of the day. The plaintiff testified that indeed there was a fence at the place the oven was constructed and that all the gates were manned by security guards which would make it difficult, if not impossible, for him and/or his workmen to make away with a wheelbarrow, let alone four wheelbarrows, just like that. It was the plaintiff's evidence that when he heard the story herein he was shocked and protested there and then as the allegation was without any basis at all. The only competent witness who testified on behalf of the defendant on this aspect was DW3 who was at all material times a moulder in the defendant's employ. He said that it was actually from him the plaintiff and his workmen borrowed the wheelbarrows., Concerning the material day the witness said that when he checked his stocks he discovered that four wheel- barrows were missing. Secondly, the witness said that on the material day the plaintiff's men had borrowed two wheelbarrows which they, however, returned to him in the usual manner in the course of the day. He said that it was only later at the time of knocking off when he discovered that four wheelbarrows were missing. In cross~examination the witness said that he never saw the plaintiff or his workmen take out any wheelbarrows from the defendant's premises. He said that the plaintiff and his workmen did return to him everyday the wheelbarrows they borrowed. The witness went on to say that the wheelbarrows were kept in a workshop which had no doors and which was always accessible to employees of the company. He said that there was a work force of 42 in the defendant's foundry alone. The point here is simply factual. I have given the evidence all the care it deserves. With respect, I am unable to find any basis upen which the plaintiff and/or his workmen can be heid responsitle fer the missing wheelbarrows. Indeed even the very allegation that the four wheelbarrows missed is, in my judgment, suspect. I find therefore that the defendant's withholding of the K400.00 was wrongful and that the plaintiff is entitled to a refund of the same. Pausing there, it is to be observed that the foregoing does also dispose of the defendant's counterclaim based, as it is, on the very four wheelbarrows I have just dealt with. Having found therefore that the plaintiff was not responsible for the alleged missing of the items here it follows that the defendant's counterclaim must fail and it is dismissed. I now turn to the plaintiff's action for defamation. The statement of claim seeks to plead both slander and libel. With regard to the former, it is averred under paragraph 4 of the said statement of claim as follows - "THE PLAINTIFF further states that on or around the llth December, 1986, the Defendant through its officers falsely and maliciously spread word at the Defendant's premises that the Plaintiff was resvonsible for the missing of four wheelbarrows from the Foundry." The libel claim is charged under paragraph 5 of the said statement of claim where it is stated:- "THE PLAINTIFF further states that on lith December, 1986, the Defendant through its officers falsely and maliciously wrote and published or caused to be written and published a letter of the Pleintiff saying: “Phis is to zdvise that we have withheld K400.00 from your Invoice No.25 due to discrepancy of four wheel barrow missing from our Foundry. ” It is then pleaded that the said words were understood to mean that the plaintiff was respoisible for the missing of the said wheelbarrows and that he was a thief. I will deal first with -he action for slander. The first observation to be made here, nd I agree in this with Mr. Msisha, learned Counsel for the defei1iant, is that as a matter of correct pleading the plainti ‘‘ should have, in paragraph 4 reproduced, indicated the pe:‘sons to whom the alleged slanderous words were uttered rather thin simply stating, as was done, that the defendant's officers “spread word". Referring to the evidence the plaintiff's case on this point was that the words complained of were uttered by DWl who was at the relevant time employed by the defendant as a Maintenance Supervisor. The plaintiff said that the said D2W1l uttered the words to his, the plaintiff's, workmen mentioned above and then to one Kingham, the Chief Accountant of the defendant. As indicated earlier on, one of the plaintiff's workmen was called as a witness in this case. He was PW2. Significantly, the witness said that he did not, on his part, hear DW3 say anything directly about the wheelbarrows. He said that rather it was from DW3's "boys" that he got the story. There was no other witness. Several observations can be made here. First the claintiff's own evidence was, in my view, flimsy and basically hearsay. Secondly, it was not supported. Thirdly, I do not think that PW2's evidence can be given much weight, vague as it was. It is also to be noted that DW3 denied the allegati on here and he emerged intact in his testimony. Put briefly, I find that the plaintiff has failed to substantiate the charge of slander against the defendant. I now turn to the action for lisel. The first point taken by Mr. Msisha was that the statement of claim is defective in that there is no plea therein as to the person to whom the alleged libel was made. Learned Counsel submitted that where publication is alleged to be by a letter, as in the present case, the names of the persons to whom such publication is alleged must be pleaded and as to the effect of absence of such plea, learned Counsel stated that a plaintiff in such cases would not be allowed to prove publicaticn to any person not mentioned in the pleadings. With respect, I cannot agree more with learned Counsel on both the Bhs) henicnte: There is a wealth of cases on the subject, amongst them being Dalgleish v. Lowther (1890) 2 QB 590 and Barham v. Lord Huntingfield (1913) 2 KB 193. Indeed it is a basic principle of pleading that pleadings should contain all facts or particulars which are material to a party's case so as, among other things, to inform the other side of the nature of the case and to enable such other side to prepare for trial accordingly. See Aga Khan v. Times Publishing Company (1924) 1 KB 675. It will be noted, refer: ing to the present case, that all the plaintiff avers in paiagraph 5 cf his statement of claim, reproduced above, is that the defendant, through its officers, falsely and malicicusly wrote and published or caused to be written and published a letter concerning the plaintiff and simply goes on to renrolucse the contents of the letter concerned without stating tue persons the same was published. According to the case law authority I have just cited this was bad and defective pleading. In my judgment the defect here renders the plaintiff's cas2 fatal considering, in particular, that the absence of this pl:a of publication denied the defendant the opportunity o;' raising a defence thereto. Clearly the defendant could not pvlei:d to matters not pleaded by the plaintiff in the first plac. Let me illustrate the point here. After hearing evidence in this case it became clezr that the plaintiff's case was that publication of the words cc mplained of was made by the defendant's accountant to ‘:he typist cr secretary to whom the letter concerned was dictaced and to the cashier mentioned earlier, Mr. Msisha argueji that if the plaintiff had made this plea in his statement of c laim the defendant would have pleaded qualified privilege. ‘he iefendant did not, however, raise the defence here because the necessity for it did not arise. With respect, I cannot agree more. This reinforces the argument that the plaintiff was obliged to state the persons to whom the publication of the alleged libellous words were made. Indeed one of the functions of pleading is to prevent an unfair situation whereby the other side is taken by surprise. Mr. Msisha argued on this point that the alleged publication of the words complained of by the plaintiff in the present case was subject to qualified privilege, considering that all the three perjons involved (the Chief Accountant, the Typist/ Secretary and the Cashier) were at all material times employees of the defendant. Mr. Msiska for the plaintiff disagrees. He submitted that the situation here could not make any difference so long as the dictated material was defamatory. There are two interesting cases on this point. The first is Pullman and Another v. Walter Hill & Co. Ltd. (1891) 1 QB 524. In that case the alleged libel was contained in a letter, as in the present case, written on behalf of the defendant company and sent by post in an envelope. The letter was dictated by the Managing Director of the defendant to a clerk who took down the words in shorthand and then wrote them out in full by means of a typewriter. The letter thus written was copied by an office boy in a copying press. When the letter reached its destination, it was in the ordinary course of business, ope by a clerk of the firm and was read by two other clerks. was held that the letter must be taken to have been publi both to the plaintiff's clerk and the defendant's clerks that neither occasion was privileged. The second case is Osbourn v. Thomas Boulter (1930) 2 KB 66. That was also a case where the alleged libel was contained in a letter to the plaintiff dictated by an empl of the defendant to his typist and published to certain cle | in the course of their employment. It was held that while / the dictation of the libellous matter by a principal to his New, typist or clerk in the ordinary course of business is no doubt “= a publication, the action was the subject of qualified privilege. The court in that case was aware of the decision in the Pullman case (supra) but refused to follow it. Scrutton, L. J. accepted the principle laid down in an earlier case namely Edmondson v. Birch & Co. Ltd. (1907) 1 KB 371 where Fletcher Moulton, L. J. at p.382 said: *, "In my opinion the law on the subject laid down in the case amounts to this. If a business communication was privileged as being made on a privileged occasion the privilege covers all incidents of the trans- mission and treatment of that communication which are in accordance with the reasonable and usual course of lpusiness." I thought that there was a i:ocal case on this point decided by the High Court here but I have, regrettably, not been able to find it. All in all, I think the Osbourn case was correctly decided and would follow the decision of the court there. In other words even ‘f the plaintiff had correctly - 6G - pleaded publication the action as evidence discloses, would have been covered by the defence of qualified privilege and the plaintiff's case would have failed on that ground. In case I am wrong here the next point is whether the words complained of by the plaintiff are capable of the defamatory meaning given them by the plaintiff, namely that they meant the plaintiff was a thief. I am aware that words imputing a criminal offence can be defamatory, see Simmons v. Mitchell (1880) 6 AC 156. Referring to the evidence, the defendant was, in my view, saying that four of its wheelbarrows were missing; they were nowhere to be found on the defendant's premises. Clearly the defendant was saying that the plaintiff was responsible for the missing items and was so sure thata it decided to charge the plaintiff the cost or value of the wheelbarrows in question. Significantly, these were tools which would not have disappeared like water sinking into the ground or evaporating. In my judgment, any reasonable and unprejudiced person reading the letter for the first time would conclude that a theft was being alleged on the part of the plaintiff. In my view, to suggest that what the defendant had in mind was the plaintiff's workmen and not the plaintiff himself is with respect a sham defence. In other words, I would find the words defamatory and capable of the meaning ascribed to them by the plaintiff. All this is, however, simply academic having found, as I have found above, that the plaintiff's claim on this aspect must fail on account of bad pleading and since the action would be the subject of qualified privilege. I, therefore, formally dismiss the plaintiff's claim on this point. The position finally is this. The plaintiff has succeeded on his claim for K400.00 and I enter judgment for this amount. He has also successfully defended the defendant's counterclaim which I have already disposed and, as just indicated, the plaintiff has failed on his claim for defamation. This brings me to the question of costs. The principle laid down by the Malawi Suprere Court of Appeal on this subject is that costs must follow the event unless special circumstances are shown which would justify a Judge in depriving a successful party of his costs. I can see no reason why the plaintiff should not get his costs both on his claim for K400.00 and on the counterclaim. I accordingly award him costs on both the claim and the counterclaim, such costs to be on the subordinate court scale. The same is, however, not true of the defendant. In my judgment, the defendant's servants handling of the matter in this case left much to be desired. Indeed they acted with wanton opprobrium and to make matters worge, they did not even care to discuss the matter with the plaintiff first or investi- gate it sufficiently before resorting to taking the high handed action they took against him. The defendant's servants, in my judgment, were clearly a bad neighbour considering, among other things, that the plaintiff had been around with them for over one month constructing their oven. Alli in all, I take the firm view that this is an apprepriate case where the cefendant, though successful, must be deprived of its costs ard it is so ordered. PRONOUNCED in cpesn Court this 16th day of March, 1990 at Blantyre. i.} L. &. Unyolo JUDGE