Mvula v Norse International Limited (Civil Cause 701 of 1987) [1992] MWHC 28 (20 January 1992)

IN THL HIC: i-f CO URT OF M1\LAWI - - - ------ ---------- PRTNC TPJ\L REG l STRY C 1 VJ L C 1\ US L NO . 7 0 l OF l 9 8 7 TllOM M\i ULJ\ · .•. . . . . .. . .. . . .. .. . . . .. ... . . . . . . PU\INTIFF NO:-{SE: TNTl~l-U-li\TION1\L LlMTTl~J ) . . . . .. . . . . . . . . • . . DEFENDMH /'. ND M!\i< UTA' Ch i Cf Just i C C Mhtrnp,o, Counse l Namp o tn, Counsel for t:he Rcsponclent M,s . Li ya n, Court: Clc1·k Longt,Je /rh i ri , Cmn t F. c po rt e rs foi· Lhc Arpe 1. Lrnt. The r,l a i 11ti ff c L1 irns d.1m nges for 1.v 1:-011gful dismiss a l, f":Jlsc imprisonment a n d mal icio,1s prosecution . JUDCMF:NT .::1 t th c 111 as rc-1 t e o f 10 . L1 5 re r hour . It was lhc plaintif[ ' s evidence that .:-1f ter The l'l a lntiff w:is employed hy the DcfcncJant: in 1987 as a c1 t M z u ~~ u . H i s a pp o i n t: rn c n t ,v or ks hop st 1 pe r vi so r r,,oh;:, t iorw ry [ o i· th rec rnon t: h s . He wv s s uppos ccJ to work for e i ,1:; h t hours <1 ci a y 0 n many ,Jccasiuns, liovJcvct·, he used lo work ove1:-ti.m e . During t:h,2 p1· 0Li.:.1t:ion;:iry p er iod he us e d to be paid for the overt~imc. This cn;iblcd him Lo tnkc home month. co1,firmr1tton il was agre e d with Mr. F1:anze.l 1 Di rec t o r , r<JO . CO housi ng allow ,::incc . b'2 entitle.cl to J months not i. cc . ,-1oulcl be ent i. L l e.d Lo over·L:ime p :1y should h e vmrk over time. These tcrn1s o f h1c1:e verbal . After confjrm,1ti.on in July 1937 h e continued to ,_lo overtime but l:o his surpri se he wns not being pai.d for il. llE' claimed t l1c overtime p;::iy. h 1 o r k e c.l the Managing l h t i t 1i i. s s a l a 1.· y 1.-10 u l. cl be l< 3 5 0 . 0 0 r c r mo n t h p] u s ;igrecrnent wen~ n o t rccJuccd to writing. They lU, B5 . 00 or KS00.00 at t he end of the c1 senior staff member he would From Ju]y tu Serternber he hAd !-1 ! • h o urs over t i me o n S u n d a y s . It was nlso agreed thnt he l 5 5 h o u i- s . l l r:: d i cl 1\s On Frld:.iy 25t h September, 1987 the l'lninti ff aske d for l l e to s cc h i s fa the ::- w h c__, w a s II e p e rn1 i s s i on t o 0 o to K ,7 r o n g cl ~as pern1ittcd to go on Saturday, 2Gth Septemb e r after working h nu r s . H c r w'" s g i v c n l i. l r cs i n s t e n cl o f money . he was the Oiily scnjor rn;:in rema i ning on site. Th e "uperior pc.;rsonncl weekend. fo r cx;:i rnplc t-fr. Di.a ~; , hod gone' ;:1way cl cl v clll c e L h n t h E' c o u 1 rl h u y 0 n 2 6 t h Sep l em her , c: :s k c d f o r f or the [ u i:; 1 . t h c n i lJ . ,'.7 r 1 I, CJ - -- cou,n OF,.. "'' ~----- ~ 0 2 ":! ! - 2 - RA" The P1 a i nt i ff borr owe d a c a r [rom c:1 f ri Pnd. lie then lie t h erefore clccicler:l to Th e hroken part was r e moved o n Moncl ;:1y morning and c1Lscoven~d r: hat it h;:icl no battery. bor-row a bat t e;-y from the defendant's store. The storeke0.pP.r lent hi_m the lx-1ttery and after it was fi ttecl l~o the car he left [or Kc1r ong a . On his vrny b a ck o n 27th September the car b1-oke clown . was brought: t:o Mzuzu. 1~ork on Tues day, ·29th Se p te mb e r. After explaining his problem he was given time A.ml he t-crort e cl back on Thursci,1y, the 1st of October. Mr. Robinson was keeping it. Wh e n h e met Mr. Robin son at Lhe office the p laintiff w,1s informed thc1t if he insist e:d to be paid overtime h e should r es ign or else h e wou ld be fired or he should p.,o anyw h et-c . He t h en went to the l.obour Office to complai11. At- Ll1e L:ibour Office h e wos :~d vise cl to go home. \✓ hen he \\rent for his pay, he wos told that a The: Plaintiff rep orted at his place of On Lile morning o[ 2nd October he h eard a kn ock at his i_n the mon1i.ng and tol.d the door and whe n h e opened he n oted that there was Mr. Dias, Mr. Mtimkult1 , Mr . Wal i and Causi, a Polic e man. The house WRS searched ,:rn d 21 h cimmcr which the pL:dntiff twd bon.-owccl from his work was collected. The Policeman, Mr. Wali and Mr. Dins c;:ime back to the h ouse l ate r pLJintiff that t h ey understood h e h ad tilkcn a l,;,tt ery fro111 w n r k s ho r . A f t e r c o n f i nn i n g friend in whose ca r hnnded to the PolicE' man. The PL:dntiff was then advised to go to t:hc office al 3 . 00 p.m . to collect his p ,1y. When he went to t h e pay m c1 s t er , tor Mr. Robi n son. When Mr. Robi n so n came t~hc pJaintiff w::is l: .:1ken to t h e Pol ic e . The peopl e who took h im to the Police 0 n \v' e 1.- c Mr . a r c i v ;J] n t cntcn::-cl inlo the off ice. Th e Officer in Ch c1 rge, ~!r. Mlione , ordered a Sergeant to take off the plaintiff's shoes. plaintiff was . Ro b i n son , Mr . Mt i rn k u l u , Mr . Di a s a n cl M r . W a 1 i . the biltte ry was fitted. The battery was t h e pl a i n t i E f w a s to J cl to w a i l_ t he P o I i c e crn J y W o l L n :~ m c1 i n e d t he c il. r . The .re s t th e y s a id he l e cl c1 t 3 . 0 0 p - m . , t: hem t o L h c l ocked up. \v ha t 'fhc t he i n The cell w._1s 1½ met r es by 2 . In the cell was a maclmc1n i n lat e r. i\t 3. 30 p.m. they we1-e transferred In c1ll there were 11 people. On 3rd ,v ho w ,c:1 s sh o u t i n g , u 1.:- in a t. i n g a n d cl c fa c c1 t i n g . Ano th c r s ix people were brought in lat e r. Another thice people were broug\11: October at 2. .00 p.m . he was called into t h e office. He WAS t::.iken b.:ick jn to the cell . to Mzuzu Pd.son. Th ey were chained together nnd w<1lked J l<m in Mzuzu City . t-J l,i l e nt Police the pl;1i11t: iff's ,vife brought s0111c food but h e wc1s not a ll owed to eat Lt . . The Plaintiff re mained in c u sto dy up to 5 th Octob ci- when nt 10.00 a. m. h0. h 1:1s taken to the Magistn1t:e 's Cou rt, st Ll. L ch a r g e cl w j th t h c [ t: by s er v a n t . 1\ t J . 3 0 p . m . h e w n s gr c:rn t e cl buiL by the Court a nd wos a d v ised to report o n 8 L h October. 011 7th Octo ber, 1987 after ret::urning fr·om l<arong ;i_ where he took his fnrni l y , h e went to clnim his sa]a1:-y from his c-111ployc1~s. !1 0 l u~ res ha d b cc n cl e cl u c Le cl • lie w:1s pnicl 10 1 5 .00. in chain s. He It would cq,pear the vniuc of ,,,;is ---;~ ·cou R r - y,\v ----- • 0 2 JU L f 4)9 - 3 - • ; t d '/ / - ....;__. __::;..,.. . .,.;::;:--.- / /_ During the lH,·c11:-ing h e s t::-1yc cl in a rcst:house r estho u se for 10 days. per night. He was At t h e the Plaintiff he stayed at the resthouse because nowhere to stay. /\l:· the end of the Lrial he was lGth October , 1987. pr1ying l<S.00 /\ccorcling to he had ocquittecl on ['1i-. l3rlghton I<rtwongn \•Jrt s that he used to ·work for Norse as ;i mechanic when the Plaintiff was for e mon. He no longer works for the defencic1nt. He left tlw defendant in March, 1988. The tools he was using ,,,hile working for the clefcnclnnt were issued to him from the defendant's stores ancl h e used to sign for them. storekeeper cU(l not w,:::rnt to i.ss ue anything he used to refuse. tl1e next \.vitnc.ss. He Lcsti[ied If the It \vclS his evic.lencc LhaL o n 2Gt: h Plaintiff brought a cor for fuelling. ~nd the plnintiff was provided with a defendant's store after the plaintiff battery was kept in the store . Sepl: ember, 1.987 the Its bc,t:lery w:is fL1t h:ittcry frorn the signed for it. The flat The defencl.'.lnt cnl lc~cl t.hree witnesses . The f:i_rst was ~fr. Art:c,n M. Mti1nkulu. He informed the Court: he w,,s personnel office r based nt M;;,;uzu. He was also responsible fo1~ security. He, however, did not participate in the emrloyment of the Plaintiff. But he was the Plaintiff's paymaster. w;Js his evidence that the Plaintiff wc1s dismis se d summarily i t be ca us e o [ was the Plaintiff who was responsible for its disappearance. The Plaintiff, according to this witness, hncl n o permission to t .:=i k e Mr. Dias, or Mr. RolJinson or from Mr. Mtimkulu himself. t h e per rn i s s i on e i the r from 1\ b a t t er y m i s s e d fro rn ll e sh o u 1 cl h ;we go t t he yo rd a n cl rn i s c on cl u c t . i t aw ;:1 y . It ;:i 0 n o v e L. ti me Mr . Mt i m k u l u w a s not c o n s i s t en t: • stated th-Jt the Plainti_ff used to get overtime while on probation and it was abolished ::i.fter confirmatjon. L.::-iter on in Ids evidence he stated that the Plainti ff got his pay, including overt: imc, to Sertcmber. t:he Plaintiff's confirmat i on took place in . July. no o v e r- t i rn e en t i_ t l em en t a f t e r- con f i rm <1 t i on t he re w o u l cl ha v e been no tolk of overtime pc1yment to September. It must be recalled that F i rs t 1 y he If there was The nexl witness w.1s l~,l Sergeant Michc1el Gausi. He was stationed al: Mzuzu al the nwteriol time and he hm1dled this matter as ,rn investigation officer·. He infonne ci the Court that he hod received a report fi:om the Defendant that the Plaintiff h.1cl stoJcn o battery. !-le then carried out enqu i ries .:i nd seorchecl the Plaintiff's house. The battery wos retrieved from a friend's car at Marymount Secondary School in Mzu7.u. Subsequently he arrestt=>ci the Pl:~intiff at the Police Stc1t i on. c1 n d put h l m i n that he nrn::stecl the plnint i ff bec,1use he had qunrrel led wil:.h someone at the Defendm1l: ' s y;1nl and that wcis sufficient evidence U1,•1t he had sto l en 1: he battery. l hi s w j_ t n es s ' s fur th c r e v j cl enc e 1,. Jhat a conclusion!! c1 c el l . I t w a ~" , . ' , - ~ I.'!' ~ •RY - >--·,-' \ ., • )! 'I // -✓ ;/ The las t witness W(1S Mr. Rc.1incr E. Fr;;~zeI~ .. -t -l~c Dcf(:'nclant's Mnnaging Dir ec tor . after interviewing him. According to him the Plaintiff was em p loyed at the ri:ltc of KLL15 per hour ind efi n itely. Ou t,~rminc1tion t h ere wns no s pecific c1grc E' ment. understood that industry ' s !le e mpl oyed the Plaintiff t e rm s would apply . I t w.::is After t:liree .. months !: he pl.1inti.ff h1c1s put on monthly Tli c Plc1 i ntiff wns di_srnissed because some snl.1ry of 1<150.00. tools were missing rind th ey we re found in the Plaint: jff's possession. Th e PL1in t iff h a d no permission to hrtve them. The witness denied that the Plc1intiff h ad outhority lo takl-~ onyLhing wiL hout authority . Th e re 1,11c re no written inst:ruclions governing th e Plaintiff ' s em pl oyment. After the Plcdnti[f was clC(] Ui t t ecl there WciS Lnbour O[[icc to termin;itP. the Plaj_ntif.f' s cmrloymcnt lP.g.-iLly. ,1 lctte1: from the Rcgjon,11 I now t .i irn to consider Lite cl::dm for wrongful disrniss.1]. Sec ti on ll ( 1) ( ,1) of the Employment /\ct empov-.1ei-s an cmpl oyE:r to sumrnari ly c.li s m Lss an cm pl oyce when the J at: ter is guilty of misconduct. . Be si d e~ this st::1tutory provision there j s an abuncJ;:rnce of outh or ity which s t;itcs precisely the s,1me thing t h at nn emp loy er i.s entitled to summod1y di:;miss on employE-~e where the em plo yee j s gui l t:y of misconduct or clocs ;rnythi n 0 i n crnnpntible wit h or inconsistent hii!~h !: h e fulfilment of the express or implied co ncliUons of his duti es: see Nyirendo v. Lujeri Ten Estates Ltd. Civil Cause No.5O7 of 1981 Tu 11 1-er Or L (:; d ) . No.5O6 of 1 9~H (unreported) it wa s ~;L at ed l.:h .:1t there is 110 rule of LnJ setti. ng out the clcg1-ee of misconduct which will _iusti [y cli s rn Lss a ] . The gener0l rule is that c1nything which i 1; incompatib l e with the clue or faithful di schcirge of his c.luLy to h is employer , i s justified in dismissing Jijm, Lhough the incorn patLbl c thing i s d o n e outsicle the service . l n ~. JasT Ji V • C l_ an T n -rn s p O 1- t Lt cl • Ci Vi ] Cause t he cmpJoye1~ In the i n stci n t case the Plc1intiff w;:is dismissed becnuse the t ri n l U 1c re w;1 s no evidence which was adduced of misconduct: . The fi r st particular of th e misconduct is that he used the Defcndrrnt ' s tran s rort: without prior permission. Throughc.n1 t t o su1Jstant:intc this all cg aU. on . No vehicle wns rnenlionccl. Not even the sl j [!, ht c1llusi.on of misus e of R vehicle wc1s done. This ;:illegnl~ion is thc!:efore without substance. The second pcirt i cul.-ir of misconduct i.s that he converted or used the DE~fenc.lcint's c .1r batter y h 1 ithout the Defendant's c1uthority or permission. Th e eviclcnce on this, ns c1lrecidy mentioned nhove, is thot the Ploint: i [f, on 26th September, l9B7 Look n bcittery f rom the store with o ut pr::~rmi ss ion. t:he PlninLiff's evidence thRt h e gnt p e rnii ssion fr om the DefencL:int 's store- keeper. Al t h oug h the Defe ndant· ' s storekeeper, Mr. Kennedy F1· ank Aclnm, was n ot c;1llecl c.1s g;::ivc evidence clurin g the cr i 1nirwl td.cil. of the PL1intiff cit. M z u z: u . us follows: 3 witness cluring this trial, he l-l i s c v i cl enc c n t Hz u 7, u i n I~>: hi bit PG 1v a s ci s cont a j n e cl lt was -- 5 - "Un 2(1/9 /87 M,:. Mvulci came to my office. He said lie was goi ng to Karong,1 and wanted to borrow ::i biJ t tery . He said he ,·Jou lei re turn l did it on Monday. not as k hi rn whether he h ;;1 d authority from the boss.. .. I first wr ote on c1 cover ". I clid n ot write jn a spares book. I gave hi m the battery. Another witness, Mr . Scot t Rru ce Hobinson, during the criminal triol testified as fol lows: "J clid n ot ask hi m why h e from the store . c1nvlh i n~ from the store without ;i uth nri tv. cn~not 1;erson0lly inclenl:i_fy th e battery""'. T h e nccused w;:is free to take I li ad taken the bGt:tery I t must be em p ha s i s E' cl L hat M 1: • Scot t cont1-c1 ct manc1ger nt Mzuzu. could not make th e obove statement if t h ere was no substance in 1. •- ;:irn of t=he view th cJt Mi-. RobinsQT, 13 r u c e Rob i n son w a s a I L • During the triaJ of this case Mr. Brighton Kawonga, PW.2, t e stified that h e was present o n the occasion the Plaintiff was getting t h e bnttery . He was :it the materinl time working for Norse at Mzuzu as a motor mechan ic. that when g1~tting thin gs from the store the storekeeper was asked to iss u e. used to refuse and one could n ot get anything. On the 1~1c1terial clc-iy the PlainU ff came with a car whose battery ,vas flat and the store keeper provided tl1e Plaintiff with a battery 81:ter the Pla int iff signE'u for it. The flat battery was kept in the st.ore . IE the storekeeper did not want to issue he It was his evidence These swo ,-n depositjons s h ow thnt the storekeeper w;is the I n the c i r cu rn s t ;:inc e s person in charGe of the battery and he made a recording of it t he v j_ e w tlw t L he on some c over . Plaintiff twcJ the requisite pE~nnission to Lc'lkc the battery f r om the De f cncJont: 's .1 gent . The evidence also shows tlv~t Plaintiff had genera l authority to take anything from the store without partici:la1- authority. The re is therefore no substance in this alleg.1U o n. c=i m o f t.he I The th i_ i-cl pa rt L cu 1 ;-n of m L s con cl u ct i s tho t L h c P 1 a i n t: i [ [ failed to fo l l mv J aid clmvn pr oce dure s of the Defendant:. Ther e is no evidence t- o s ho w that there is 1-aicJ clown rrocedure to be followed by t h e Defenda nt' s em ploy ees . The PJaint:if['s contract was oLl verba l. p r ocedures I would b.1ve exrect E~cl ~fr. Fran7.el, the Managing Di rector, to h ave broug h t: Lh ern to Court or o t J ea.st to hc1vc g i v en s om e d e t r1 i1 s of th c m I: o Co u r t . There w a s no L h i n g o f sort. In my vi e w the ollegnt.ion of [aj_lur e to foliow laid clown proccclun:~ s docs not seem to have ;:my subst a nc('>. If thre were any laid clo,vn t he r l) -- ·- i_t- On fa 1 s e i s s e t t l c cl i rn r, ri s on m c 11 t l aw th a t a De [en cl o 11 t wi ll be liable i.f they lcdd c1 charge ag;:iinst the Plaintiff on \vhich it became. the duty of the Poljce to arrest him. Dcfencl;1nt will no t be liDble if <111 they did WAS to give in[onw1tion nbout. the Joss of the bnttery at their premises and asked the Police to i nvestigat e : See C . S . Chintcnclere v. Burrou_ghs Ltd . Civil C1use No. 530 of 1981 (unr e portedi. In 7icTmarc v. Starnbul.i M. S . C. J\ . C:hdl t\ppeal No.6 of l9i)I, Ti.rnreported) tile Malawi S uprem e Court acloptecl t-he test in Lhe following words : The?. In ol~hcr words, t-he Appel Jcrnts laid n 11 \vlien the Rc~sponclent h'as taken t:o Pol ice, he w<'.ls locked up irnrnccliat ely . The l'olice must hc1ve been satisfLecl with wl1c1t the 1\ppellc1nt's servant Silid to them. charge a gainst: the Respondent on which the Po] i c e acted. Had the J\ppclL:rnt gone to the Police .:.ind stated thnt they suspected tha t on offence had been committed and requested the Police to investigate, that wo u ld be Jc1ying an jnformation because any ~1rrest sub~;equcnt1.y would have taken place on Po J i c e cl i s c re L i on c1 [ t e l- exam i n j_ n g t he f n c t s " . In the inst:.:Jnt case Sergcc1nt Gausi told the Court that he ;:i.s a lr eady ment ioned above, Sergem1t Gausi. h c1 d received a report from the Defernl r:mt that the Plaintiff hnd stolen a battery . That, in my view, was not laying info,-m. Jtion but laying a charg~ agaj_nst the Plaintiff. As n ma tter off . J ct , testified that since the Plaintiff quarrelled with the Defendant's personnel it indicated that he had stolen the buttery. Th;1t seems to be a strange conclusion especially wh en the Plai ntiff rnc:1dc it known that there was some quarrel because the PL:dntif f was c1ski11g not only for his three months overtime p. Jy bu~ also for his monthly pay. had been given hi~; dues he would not have gone into the quarrel. There wns, in rny vieh,, fal se imprLsoninent ns a re.c;ul t of the lc1ying of " c!1ai-ge by the Defendant:. If the Plaintiff On mal Lcio u s p1~osecution, [or the Plaintiff to succeed he must establish th;:il: he was not only prosecuted but th,cit the prosecution cnclecl in hi.s favour . He must also show that there .:rn cl r rob;:, b 1 e c c1 u s e and t ha t t he De f e ml3 n t w c1 s n o re a s on a b 1 e was actuated by malice: see J\brc1th v. Norlh Eastern Radw,1y (1883) 11 QRD 448. In the inst,-:rnt: c:;1sc, the facts of the arrest: po i nt to c1 Th e p r i 111 a r y t o k e er t he ma 1 i c i o us mo ti v e • Plointiff into custody for h,1v i ng complainecl nbout under- payment of hi.s s;ilary enti tlem e nt. The motive was to shut up Lhe Plaintiff. up a _judici a l enquiry on the loss of the battery. The It wc1s not merely for the purpose of setting i n t en t i. on tv 3 s - 7 - ' f \ # \\ ~ =------ t h c y r c port c cl -: .... - D c fen cL:i n t ' s em r l o y c e s n c t c cl theft since L.hey knew t h ,:it Mr. Robinson knew t h at the Plointi ff hacl genera] ::iuthority to It is no wbnder that the store- take anything from the store . lee e per exp re s s e d s u r p d s c t h e b a t t e r y w a s found ,:1 t J\t p.::i3e Poli.cc. lx -1ttery had bet':n borrowed. (J of Ex h ibit PG he said: ,.; i t h m ;:i l i c c w h e n t ha t the t h e "I nm stff[ffi.secl tha l: the bat:tcry it, at the Pol ice". It: woulcl nppc,n the1:cfore t h at in preferring <1 chc1rgc Fu r th er more, the fact that the report of before the rnngistra !=e the Po ] i. ce were not cli.schnrging their normal rnini.sterial responsibility but were acting as agents for the Defe n dant . the f t was rn c1 cl c f o J 1 owing a bra vJ J c 1 car l y s ho,.; s t he D c fend a n t ' s malice towc1 rcl s the Plai n tiff . Thus the Defendant did not only L1ck sufficient reason for deta i n i ng the PlainUff but did not hnvc reasonnhle or p r obable cciuse fr)r prosecuting the Plciintiff tot· theft . ended in the Plaintiff ' s favour a n cl ci.:.1mngcs thereby . i..s not d isputed that the prosecution the Plaintiff suffered l t I now turn to da mages . It is n ot disputed that a f ter confirmAtion the Plaintiff ' s mo n t h ly s;i1a r y was fixccl. the P]a inti. ff ' s evi d ence t h at t he fixed scJlary was KJS0.00 p lus KJ0.00 housing a l lowa n ce . unshaken. ~lr. F ranzel, the Defenclcrn t ' s Marwging Director, was not able to nccesswc i ly agree vJi t h t o men t i on ,:rn y o th e r I inclusive of housing al l owa n ce to be the P l aintiff's salary. Th js evidence remained It 1vas in t eresti n g to observe that although t he mont hl y figure, h e wos not able t h e r e fore L:;-1 k e K 3 B O . 0 0 f i g u re . It was In thi..s case t h e r e cloes n ot appear to have been l: h e stipulation as to t ime whic h eit h er party might give the other to determine the cont r act. The P l ointiff clid allude to three months notl ce but thj s was cl ispute cl by the De[cnclc.1nt who tesli[iecl lh,1t: the company s p ccificc1 ll y adopted fully tl1e r rovisions of the Emp l oyment /\ct, C.1p.55:02. Under S.lO(J)(cJ) o f l e rn, i rw t i on o [ a con t r a c t , w h c r e i s s i 1 en t , s h c1 1 l h <:> cl e e rn r' d t o be by either party, at a n y Ume on not less than one month notice. P J a inti ff was entit l ed to one mo n th n ol ice. Hence t: hc-' De fendant is liable to pay the PlcJintiff KJEl0 . 00 Jn lieu of notice. /\ c t w h c r- 1.:~ w :1 g es ,1 re pa _i d a t mo n t h l y r c1 t e , U, e t: hercfore of the view that in this case Lhe I am i t The D c L c n c.l c1. n t: prep ,n e cl n s c h cc 1 u I e , r;: x Ii i b i. t D l. s how i n g i 11 . Ju] y t he sums of money the P l cJj n U f f-: e;n n ecl from AprLl to September 1987. Acconling to l h e schedule the PL1intiff received I< 2 7 i', • 0 5 ha s i c s a .l a r y . of K72.15. shortfall of 1<64 . 90 . S c p t em be r I<.2t,3. 00. In September h e rece i ved 1<315 . J O leaving a Th e snlary s h ortfnll from Ju)y to s h o 1~ t fa 11 of f( l O 5 . 9 5 fro rn 10 8 0 . 0 0 T n Aug u s t h e rec e iv e cl 1<.3 0 7 .i', 0 i s K l O 5 . 9 5 p 1 u s K 7 2 . l 5 p l u s f( 6 4 . 9 0 w hi c h am o u n t s l e cJ v L n g s ho r t fa ] 1 l en vi n g t o c1 - 8 - The P 1 cl i n Li f f a l s o p 1_· o v e d t h c re we re 9 cJ n y s e ;:i r n e cl leave fo1:- six months from April to September, 1987 for which he wns not p a id . There w~s no ex planati on as to non-payment of th c J eave cl c1 y s en t i U. E:~ men t . t i m c s 8 hours a cfo y mu 1 t i. p 1 i e d by 10 . 4 5 w hi ch c om e s to 1004. LJO. Th e 1 e ;1 v e pa y t h c1. t i s c om put c d a t 9 The Plai nti ff c1.lso \vorkcd on four Sunclays overtime. The I t w a s i n e v id enc e t o t a l ho u rs w or I< c<l c om e to /+ Lf . overtime worked o n Sun day ottracted cloubJe p;:iyment. The r;:ite o f pc1_y was Kl . L,5 per h our and doubJ. e pay is K2.90. The overtime payment [or the Sundoys was 44 t.i.mes 1(2. 90 wh Leh comes to K127 .60. overtime on other days. overtime on such days was 1\ times, i. e . K2.17 per hour. The overtime pnyme nt [or these days would be 1 55 times K2.17 which comes to KJJ6 . J 5 . It would appear he also worked 155 hours It was in cv iden ce tlw t pay for t ha t It wc1s aclJo urn ecl c1g.:-1in to 15th. There is a c l. ajm [01::- occommocfotion ;:it the Rcsthnuse c1t M7.u7:u at [(8 .00 per night for . LO c.l;:iys. This is reflected in Exhibit PS( n ) . The Pl a:i 11tiff test ified that afte1~ he aprcarecl i.n Court on 5th October h e went home to Karonga ancl returned tor Court on 7th. The case was then adjourned to 1.li.th October. c.lclivel."ccl on 16th ancl he had to wait for some Court documents .ind he therefo r e stayed fo r an extra day. t:ha t he is cnt it 1 ed to be reimbursed for his expenses for the /\ total of 6 nights al~ 7 t h, 13th, llith, 15th, 16 t h ancl 17th. l<.8. 00 a n Lghl wh j_ch comes to !<. 48. 00 . ,1ncl rctunwcl to attend tria l be mu s t hav e srent money on tn1nsporl. unreason~b l c. comes to K69 .20 . I therefore award him K48.00 plus K21.20 which I clo not think thc1t ,-:i claim of l<.21.00 If he went to Karonga I am o[ the vi ,~w Judgment was is · In summary the Plaintiff gets the following special clarnogcs: Orn~ mont h pc1y in lieu o f notice 1\ 1- re n rs o f s a L=.1 r y fr urn Ju 1 y t o Se p t cm b c r 9 days leave pay Ovcrl: imc pay J\ccomrnoclation a.t Rest:house 1080. 00 IOL,3. 00 K104 .l+O !Ut63. 9 5 K l,8. 00 Transport to am! from I<nrongc1 to a. Ltend t:rinl K 21.00 Tot~l Kl260.55 On F.-,] se imprisonment, the Plaintiff was deta.incd for 10~ hours at the Police cell i n fi1 thy nncl crowded conditions. He \-JclS transferred t:o a remand Prison where he was k0pt for 2 days before he was 3r;1nted b[1l1. Thus he wc1s he] d for nearly 3 clays. Appeal - No. 6 of 19 84 al ,-·eady c i. t e-c.! above, the Supreme Court In 1\dmarc v. S lambul i M. S . C:. A. Ci.vil i.n custody - 9 - approved K4,000.00 for J days spent in Prison Remand. I am of the view t hat in the instan t c.'.lse a similt1r award of Kl+,000.00 would go a long way to assuage the Plaintiff. order accord in gly . I therefore On malicious prosecution, the Plaintiff suffered inciignity, h umili at::ion ancl dis grace . He ran the dangr.1:- of sufferLng impr isonme n t-, all because of ill motive by the Defendant. compensate the Plai nt iff . l ai'n• of the view that a sum of KJ,000.00 would In all the De[enrlant are liable to pay Kl,260.55 special damagers, K4,000.00 for false imprison ment and KJ,000.00 fur m~licious prosecution, a total of KB,260.55. The Pl a i n t i f f w LL 7 h a ve cos t s o f the act i on . PRONOUNCED in open Court this 16th clay of J.::1nu[lry, 1992 at Blantyre . ::::::--- ~ .- uRT OF M"-t. • 1 • I fi-/1_ :}· K\,;if'~; L. Makutn (:JlIEF JUSTICE In the judgment.: wldch was delive1:-ed on 16th Januciry, COUIZT: I--zr91-:- one aspect "gen e ral clanwgcs for wrongful dismissal" was i.nadvertent ly o,ilitted and I now proceed to dec'll with i_t under 0.20/11. of the Rules of t h e Supreme Court which nllows ;-in o:nrni s ion of this n;~ tu t~e to be corrcc t ed. It was submlttccl on behalf of the Plaintiff that the evidence before the Court give,:; rise to a basis upon which iener;il damages would be payc1ble. The exceptional circum stances are Uwt the Plaintiff h<'. Js remained unemployed up to date despite being in possession of special qualifications and skill in t:he construction l:i.-nde. The Plaintiff: had been bi.ghly recommended by bis previous employers as per Exhibits Pl. A, PlB and P 1 C • H c industry. The De [ cnrL:rn r.· have ref us eel to gi. ve D ny ref ercnces to enable the P1.ai.uU ff seek altcrnati vc C'mployment. He lws sought other enga2-,i:::rnent to no avail, owing largely to the lack of such reference letters. The wo uld -be Prnployers arc left with unfavo urabl e impression of the Plai.ntLff. i. n a n cm p l o ya h 1 e s e c tor o f i. s n n t , as i t were , -· 10 - The case o[ New Honda Cer,tre v . B. Sagawa Civi L Appeal In that fl2 was in receipt of K60 . 00 per month. No. 7 ct 19811 was citea in supriorf. CJf7.:Ti-esubrnTssion. case t i1e respondent was employed by the a ppe l lar:t as a mechanic. 1981 he \vas summarily dismissed for misconduct. He then inst i tutet.l proceedings in the Magistrate's Cou 1~t for wrcmgf 111 ciisrnissaJ.. The learned McJgistrate mvai:-de d the re s pondent K60.00 lJE-ing or1e•rnor1th's sal3r .. ) 1 \VdS clso award e d l<240.00 as gene.cal damages. The aworcl of general darnagec; was on the basis that on bis di smi s saJ must have been put to i:-1.convenience in trying to secure another job . The appellant appealed against the sward oE the general rlamnges on the basis that general damages are not awardsble in cases of contract and, in particul ar, cases of wrongful dismissa l. ir1 1:Leu of notice. the res poudent In October·, !-ie The learned Judge c1fter reviewing the circum st c1nccs of the case and the relevant authorities cited, dismis~cd the appeal holding that save in exceptional circumstances general danwgl-~s cannot properJ.y be awarded in cases of: v.1ron 6 ful dismissal over and above the s;=Jlary and b(' 1v -~ f-Lt s which h.civ(-~ accrued as at th e date of dismissal . T: have exarninecl the circumstances of the J.nstant c.1se. It j s observed that the Plaintiff still relains his references \•ild. ch he obtai nee! before he joined the Defenda nt. It cannot i i n my view, be said that he lacks references . As a matte r of fact he got a job with another construction company in Karonga after he was alreAdy dismissed . He must have us ed the. refer ences namely Exhibits P1A, PlR and P1C . not correct: to say t h at:: he has remained unemploy ed for four years. The du n.1 t ion of the job at f<.a ronga m<1y h2,ve been short but it is a n indication that he is employabl e . lt is therefore I woutd point out that the case of Nc,v Ho nrl~, Centre v. i.s not c1 Supreme Court decision as--\~1 2.s s1-mmitte d. I t It does not s.1y what exceptional S.c:,gawa is 2 High Court decision . circumstances may be considered for awardin 3 g eneral dnmages for h'rongfu l dismissal. I Jo not, tr.erP.fore, fLncl any basis for a wnrdi ng general d~mages o v e r and above the salary and henefits which accrued as at the date of dismissal. PRONOUNCED in open Court :it B1-antyre . thi_s 20th ci av ., of Janu~ry, 1992 - 9 -· approved K4,000.00 [or 3 days spent in Prison Remand. I am of the viQW that in the instant cose a sirnil:1r aw ard of Kl-1-,000.00 \v o u l d go a 1 on g way t o a s s u age t he Pl a in t i f [ . order accordingly . the re fore I On malicious prosecution, the Plaintiff suffered i.ncHgnity, humiliotion and disgra.ce. He nrn the dang0.1~ of suffering imprisonment, all because of ill moti ve by the Defendant. compensate the Plaintiff . I ari1 • of the view that a sum of K3,000. 00 would I n all the Defendant are liable to pay Kl,260.55 special dnmogers, K4,000 . 00 for false impriso n ment and K3,000.00 fur mnlicious prosecution, a total of KB,260.55. The Plaintiff will have costs of the acti on. PRONOutJCED in open Court this 16th dc1y of Jonunry, 1992 at 13lantyre. Ii - fl. ,1 K\~~J L. Makutn C'.l!IEF Jl JSTICf~ In the judgment \vllich was delivei~ed on 16th Janu;:iry, COUIZT: 1.-gr;r, one aspe ct "general clnmagcs foi- wro ngful dismissn L" w:1s i_ n a d v e-:-- t en t 1 y G,, 1 i t l.: e d a n d I n ow pro c e e d i. t under 0.20/1 1 of the Rules of t he Supreme Court which <1llows ;-i;i o:n;nision of this nntun: to be co1-rcct~eci. t o d ea 1 w i. t h Ii: w;,s s u bmi ttccl on behalf of t.he Plaint iff Li.at Llic evidence b efore tho Court gives rise to a basis upon which gent:r-.11 damages 1.;ouJ_d be p,1yc:ihle . The exceptional ci 1_·c1.1m stances Pire that Lhe Plaintiff hos remained unemploycrl up to date desplte being i11 possession of special quali fi cations and skill in t:he co11structlon trade . The Plaintiff had b een hLgh1-y ,_- e comm e nc! e cl by h i s ()rev i o us em pl o ye rs a s p e r [:'{ h j_ bi t s P 1 A , P 1 B -''t s n n d F 1 C . industry. The Dc[cnrlanr: have refu sed to give ony references to cr1ctble t he Plc1int i ff see k altcniativc employment. He h:-is scu.t!:ht: other engn8err:ent to no avail, owi n g largely to the lack of such reference le tte rs. The would-be Pmployers arc left ,-Jith unfavo urctbl e i mpress ion of the PlaintLff. j_ n a n cm p l o ya bl e s e c t o r o E i t we re , i s n n t , ll c - 10 - The c ase of New Ho nda Centre v . B. Sagawa Civil Appeal In th a. t the sub mi s s i on . l 9 8 f ~ w a s c i t e d i n supp or- t o :f:: No . 7 o f case the responden t was emplo ye d by the appellant as a mechanic. He was in receipt of K60.00 per month. 1981 he \vas summari ly dismissed for. misconduct. He then instituted p roc eedings in the Magistr a t e 's Cou rt for wrongf11l dismissal. The learn e d Magistrate awarded the respondent K60 . 00 being on e •month's salary in li eu of notice. He was also awarded K240.00 a s gen er al dam ages . The award of general damages was on the bas is that on his dismissal the respondent mu st have been put to iilconvenience in try ing to secure 2nother job. Th e app e llant appeal ed against the award of the general rlama ges on th e basis that general damages are not awardab le i n cases of c o ntract and, in particular, cases of wr ongfu l dismi s sa l. In October, The lea rned Judge after revi ew ing t he circum stances of t h e ca~e and the relevant authorities cited, dism issed the appeal holding that save in excepti o n a l circums tances general da,;1ages cannot prop2r::.y be awarded in cases of wrongful dic:;missal over and a bo ve the sala ry and bt:-:nefLts which have accrued as at the dat e of dismiss a l. t have exam i ned t h e c i rc um st ances of the i.nstunt case. It is observed that the Plaintiff still retain s his references i,_1l;ich he o b tained bef o re he joined the Defendant. It cannot} in my view, be sai d that he l a c ks ref erences . As a matter of fact he got a after he was already dismissed. He mu st have used the rcf"~rences namel y Exhib its Pl A, Pln and P1C . not correct to say th at he has remained unempl oyed for four yea rs. The dur a tion of the job a t hut it is a n indica t io n t hat he is employable . job wi th another construction company in Karonga f(a r nnga. may hc1ve been s ho~~t It is therefore I 1voutd point nut tho_t the c.1.se of Nc\•J Honrl-'1 Centre v. S.-:i,g;:iwa Ls no t a Supr ,2 me Co u rt decision as w2.s s1rnrnitteci. ·-yt Ts·--2 High Court dPcision . cj rcumst.ances :nav be co nsidered fo1: awa rdirw 22ner a l · dnm.'tPes for wrongf u l dismissal . It does not s<1.y wh st exceptional <...--., ,;_--, ..__) ., I do -not, U-:e::re[o r e , fi.nd any basis [or 2:,'nrding geneLJl d~m~ges over and above the salnry Rnd benefits which accrued dS c1t che da te of dismissa l. PRONOUNCED in op e n Court this 20th day of Janu~ry, 1992 nt Blantyre .