Chitungu v Chitusi (Civil Cause 601 of 1992) [1993] MWHCCiv 40 (19 January 1993)

I IN THE HIGH COURT OF MALAWI PRINCIPAI., REGISTRY CIVIL CAUSE NOo 601 OF 1992 BETWEEN: MG CHITUNGU ..............•....•............... lST PLAINTIFF -and -MISS F CHIUTSI •....••........•.............•. o2ND PLAINTIFF -and -NAPOLO UKANA BREWERIES LIMITED ..•.............• DEFENDANT CORAM: MTEGF. A, Jo Chagwamnjira, of Counsel, for the Plaintiffs Kasambala, of Counsel, for the Defendant Manondo {Mrs), Official Interpreter Maore, Court ReporteL J U D G M E N T The plaintiffs in this case, MG Chitungu and Miss F Chiutsi, are claiming damages against the defendant for trespass to goods and conversion and loss of business. The defendant has denied liability. It is not disputed that the first plaintiff was at one time an employee of ths defsndant. He was occupier of House No. CY. 6 7 at Chinyonga which he was renting from Malawi Housing Corporation. In September 1991 he was transferred to Bal aka and left his house in the care of one, Charles Banda, also an employee of the defendant. In the house there were household ~oods, and ~mong such goods were pieces of furniture, belonging to the first plaintiff. There was also in the house a .sewing machine which belonged to the second plaintiff. which 8~e used for the business of tailoring clothe~ which she sold to the publicn It was the first plaintiff's evidence tt~t he owned the house at Chinyonga and on about 20th September 1991 he left for Bal aka. and left one, Charles Banda in the house. While there, the Police at Soche called him and asked him about his property which tile defendant, through its agents, had taken from his h~use because Charles Banda was found with a shortage _at his place of work. The properties which were .~ · taken were one dining table, one bed and mattress, one !~ cupboa.re and two coffee t,'.bles, which were valued at about '1G1-t C~ Kl, o·oo. 00. They also took ·=i. sewing machine which belonged to -Ou. r.tr / the second pl air.tiff; who vas his sister-in-law. He told . lo...i£J;., ~-~J ------ -2 -the Police in the presence of the defendant's employees that these items belonged to him. The Police instructec him to go and collect the goods, but when he went to the defendant's premises the defendant refused to deliver the goods except on condition that Banda should go to Police to be dealt with by the Police or write a letter. Banda opted to write a letter. This letter, which was dated 6th March 1992, is reproduced hereunder~ "Dear Sir WITHDRAW OF HOUSEHOLD ITEMS FROM HOUSE NOo CY/67 Reference is made to verbal conversation a.mong Mr Maele, Miss Chiutsi, Mr Chitungu, Mr Kandiwo, myself, the Detective Mr Gondwe and the Officer-in-Charge of Sache Police" As you recall you requested me to write a letter to you direct that the ceased i terns should be returned back to the owners. I strongly agree the suggestion since the mistakes happened just because you and your security people foced me. I am also suggesting that it could be better if you calculated all my monthly salaries from November 1991 to-date and deduct from the shortage I have O Sir, the balance remaining if possible could be deducted from my monthly salaries. I am sure you have hold my money worth I<600. 00 which after deductions the remaining shortage will be K297"0C,, Sir I am sure that since I was not suspended and that my service have not terminated the whole amount of K600.00 is due to me. I have hope that things will go this way all will go well because the complenants will have their goods and your company will have the money backo I am yours faithfully Charles Banda Tavern Manager LIST OF ITEMS 1 Sewing machine 1 Table 2 Coffee tables 1 Bed and matress 1 Chest of drawers" It ·was his evidence that after he received a copy of this letter he went back to Police, who advisee: him that the officer who handled the case at the Station was not present. He was further advised that if he wanted his goods he should find the money and pay back to the defendants. He then referred the matter to his lawyers. The evidence of the second plaintiff was that she had a sewing machine which she used for tailorinq clothes anc' selling the clothes to members of the public" -She employe0 a tailor in this respect, anG he was doing the tailoring at -3 -the house of the first plaintiff" She used to make about KS00.000 per week. It was her evidence that at one time she could not go to Chinyonga because she was at the hospital with a sick relative. When she went there after some weeks, she found that her sewing machine was not there, having been taken by the defendant's employees, because, they alleged, Banda. had misappropriated the defenoant 's funds" She took Banda to Police at Soche, and together with the Police, they went to the d.efeno.ant' s offices o When the Police asked them, the defendant's employees admitted. to have taken the machine anG they also admitted that Banda had told them the machine cia not belong to him. When she checked the machine, some parts were not there and the machine was not usable. l',s a result, she Qecided to collect the machine until it was in working order. She has not collected the machine up to now, despite the fact that she had been there on three other occasions. The third witness for the plaintiffs was Cecilia Binga. Her evidence was to the effect that she used to have her clothes tailored at Chinyonga using Miss Chiutsi's machine. One day she went there and found that the machine was not there and, as a result, she coulo not sew her clothes for sale. The evidence of PW4, Charles Banda, was that he was employee_ by the eefendant as a 'Iavern l½anager, based at Bvumbwe, but sta.ying at Evumbwe or at Chinyonga ,. The house at Chinyonga belonged to his father-in-law, It was his evidence that while working as a Tavern Manager he was found with a shortage. When this shortac;e was discovered, the defendant's employees asked him to refund the money; but he did not have the money. As 2 result, Mr Mphande, a security guare, and a driver went to his house and demanded property which could be kept at the office until he paid the money. He was also told that if he did net hand over the property, they would re?ort him to Pclice for criminal charges. Becaus~ of the threats, he handed the property from the Chinycnga house to them, despite the fact that he told them the pro;:>erties were not his. As a result, one sewing machine, two coffee tables, one table, one cupboard and one bed and mattress were taken to the defend~nt's p~emises. It was his evidence in cross-examination that he had a shortage of K924. 60. It was further his evidence that he wrote the letter (Ex"Pl) after ciiscussions with the Police. The defendant called two witnesses. The first defence witness was Manchester Philimon Mphande, a sales co ordina.tor employed by the defendant" It was his evidence that he knew Charles Banda as a Tavern N2.nager based at Bvumbwe. On 6th December-1991 the witness was told that Banda ha.a a shortage at his tavern. In pursuance of this report, he asked Banda to come to the office, but Banda did not turn up. He checked at his house and left messages that Banda should report to Police; but Banda never turned up. -4 -Neither could Banda be found at his place of work. On 14th December 19!H, at 5 ,, 30 am, he went to Banda· s house at Chinyong2, and found him. He took him to the office and met the Brewery Manager. When Banda was questioned about the shortage, he s2id. that the matter should not be taken to Police as suggestec., but that they should go to his house and collect property to be kept by them until he found money to redeem the property. They then went to Banda's house at Chinyonga where he took out the goods and handed them over to him in the presence of the driver and a security guard. 'I'his witness listed the goods en Exh . D2. The list is as fellows~ "HANDING OVER PROPERTY BECAUSE OF A SHOR'I'AGE OF 6 7 CRATES 2 Kl3.80 : TOTAL SUK K924.60 {1) ~ound Table (1) (2) Two Coffee Tables (3) One Bed and Mattress (~) Sewing Machine { 5) Side Board (l) " As far as the sewing machine is concerned, it was his evidence that after the goods were taken,, nobody came to complain, but when he was on relief duties at Ndirande Tavern, a woman came with Banda and they discussed the position of the machine. It was agreed that she could collect the machine, but she never collectecl. the machine, However, it was this witnes's evidence, that after some time there was a letter of demana. from the plaintiffs' lawyers. This demand letter stated. "Dear Sir CLAIM FOR VALUE OF GOODS, CONVERSION, LOSS OF USE AND TRESPASS TO PROPERTY We act on behalf of te'Jr. Vi. G, Chi tungu and t. Jiss F. Chiutsi who have instructed us to request you to return the goods illegally collected from house Number CY /6 7 at Chinyonga on or around the first week of December, 1991. We are informed that it pleasee your Company to ~o and collect items from house No. CY/67 without any justification whatsoever after you were told expressly by your Vir, Charles Banda that the prc?erty cid not bel<Dng to him, This conduct amounts to trespass to property. We are further briefed that even after the ownership was ascertained at Sache Police,, you have wilfully refused to yield possession of the goods to-date. Your denying to deliver the goods amounts to conversj_on which has resultec in loss of use of the items. Unless the goods Gre delivered to house No" CY/67 in good ane working orcier within SEVEN (7) DAYS from the date of this letter; and a fair compensation is agreed for loss of use of the Sewing r'lachine, we have instructions to issu.12 frocess for trespass to property, conversion and loss of use without any further reference to yot,rsel·ves whatsoever," It was further the evi~ance of M?hande, that after he confronted Banda, Banda took him to his house and never told him th2 t the property was not hi.s. It was only when they went to Police that he was --:old ·chat the property did not belong to Banda" The second and last witness for the defence was Raphael Pi tchesi. He is a security guard employed by the defenaant, He informed the Court that he accompanied DWl to Banda's house at Chinyoilga. When they arrived there, he and the driver remained where tha vehicle was parke~; Mphande and Banda went into the house and after a few minutes, he saw goods being brought outside from the house. He was then ca.lled and assisted in loa0ing the c;oods onto the motor vehicle" It was his e'Jidence that at that time, B2.no.a was not th:cee.tened at all. When they finished loading, they drove back to the office. This then is the evidence before me, and I must examine it,, such, the I am also aware that this is a civil case; plaintiffs should prove their case on prepcnderous of probabilities. as a What comes out clearly from the evidence is that Banda was an employee of the defendant. He had a shortage and in o:;:-cer to compel him to make good of the shortage, which amounted to K924.60, the defendant decided to get his ?roperty. Indeed, the defendant did get the property, but as it transpired, the property belonged to tne plaintiffs. Perhaps it woulc: be prudent to briefly describe the tort of tres9ass to property and the tort of conversion upon which the plaintiffs are relying. The tort of er-es pass to chattels consists in committing wi thcut la.wful justification, any act of direct physic2l interference with the chattel in the nossession of another person. Tres?ass to property is essentially an injury to possession. On the other hand, conversion is an act 0£ wilful ic1terfcrence with any chattel in a, manner inconsistent with the right of another without l?wful justification, where~y that other is deprived of the use and possession of the chattel" In the present case, it is quite clear that the defendant took the plaintiffs' ~cods in order to force Banda to find money to cover the shortage which he, Banda, had. It -6 -was Band2.' s 2vidence that he was forced to hand ov~r the goods despite the fact that he told them that the goods were not his. On the other hand, Nr Mphande told the Court that Ban~a fr~ely and voluntarily handed the ~ocds to them. It should be noted that at the time the goods were taken, nei ti1er of the plaintiffs were in actual possession of the goods. 7he person who was in actual possession was Ban~a. In an action of trespass to goods, the plaintiff must be in actual possession at the time of the interference complaine6 of, because trespass to goods is essentially injury to possession,, and not to ownership -Ward -v-Macauley ( 1791) 4 TR 409. It :Ls.-th';:):cefore, clear maintain a claim for trespass defenciant. that the plaintiffs cannot to these goods against the I will new turn to the claim for conve.csion. I have pointed out earlier, tha.t conversion is the dealing with gooos 1n 2 man~.er inconsistent with the right of the true own0r, provided there is an intention on the part of the pe::son so c:;ealing with the goods to negative the right of the true owner or to ·assert a right inconsistent therewith -Lancashire and Yorkshire Railway -v-MacNicole {1919) 88 LJo KB.60L Furthermore, the taking need not be with the intention of acquiring full ownership,, suffice it to say that any interest claime6 is inconsistent with the right of the person truly enti tlea, In Tear -v-Freebody ( 1858) 4 CB (NS) 228~ "the defendant wrongfully took ?Ossessicn cf certain 9ooc,s with the intention of acquiring a li. en, and it was :,eld that h€: was guilty of conversion, 11 Similarly, taking by duress, under a threat of certain cons~c;u~nces is conve:;:-sion -Grainger -v-Hill (1838) 4 Bing NC 2120 It appears that in the present case, the defendant took the goods with a view to exercise a lien over them -to force E2nc' a to ::>a.y :;.;ac'.c the money termed as shortage,, It was the defendant's evidence that Banda freely allowed them to get the goods and that the ~efendant never used force or c-:uress --As has been seen ear lie::-on, this cannot be a defence to a charge of conversion,, 'The truth is that the defendant dealt with the p::-operty inconsistent w~th the rights of the plaintiffs "Hs who so interferes with a chattel acts at his own ::::-i_sk and if the loss of the chattel does. in fctct (whether intended or not) result from this act, he is lic.ble for the va.lue of it in an action of trove,r" -Salmond on Tort, Thirteenth Edition. Page 262. -7 -It is, therefore, quite clear that :;:-epresentcd that the goods wsre his or not, afford a defence to the defendanto whether Banda t:iat C:oes not As was pointec. out by Diplock, LJ .. in Marfair & Co Ltd -v-Midland Bank (1968) 1 WLR~ "Ti·i: commcn law on2' s duty to one's nei<;hbour i-·1ho is the owner, or entitlee to possession, of any goods is to refrain from toing any voluntary act in rel~tion to his soods which is a usur?ation of his proprietary or posscssory riqhts in them. Subject to some ,2;~c-~ptions" .. , it matters not th2.t the de-er of the act of usurpation did not know, and could not by exe~cise of any reasona~le care have known of his neighbour's ::.,te1·est in the gooc.s, This cuty is absolute; he 2,cts at his peril," It :Ls. ti-i2refore, irrelevant whether Banda defenc-:2.nt 's se:i:-v2nts t!'lat the goods were his or liability is is strict o I, therefore, find the li2bls in conversion. told the not o 'Ihe defenoant I wilJ. now revert to the question of dam2<;es. As far as the seconc. plaintiff is concerned, she testified that she use6 to make K500o00 per week with the sewing machine. These are special ~amages an6 S?ecial damages must be specifically pleaded a;:id strictly proved.. She cannot., therefore, claim these dama9es o She also tastifieo th2t the machine was dameg3d by the defendant and, t~erefore, it is now useless to her. The p~oper thing for this Court to do is tc aware her :::i.amages e~:u.ivaJ.ent to the value of the machine at the time of conversion. •rhe amount to ?::>e ac;reed upon, anc in case of dispute, to 0e assessed by the ?.esistrar. I also award her the sum of XSOC.00 for loss of use of the machine" l\s far as the first 7laintiff is concerned,. I award him the sum of K700.00 for loss of use and the return of the furniture or its value, to be agreed U.?On by the parties, and if not, to be assessed by the Registrar, Costs a.re awarded to the ?laintiffs. PRONOUNCED in open. Court this 19th 0.2.y of J2.nuary 1993, at Bl2ntyre. Jlfl;~C9 f-1 i'!l Mtegha fl JUDGE · ' __ ,. __ _