Nakhumwa v Hogg Robinson (Mw) LTD (MSCA Civil Appeal 15 of 1987) [1989] MWSC 2 (12 May 1989)

IN THE MALAWE SUPREME COURT OF APPEAT, M. S. C. A. CIVIL APPEAL NO. 15 OF 1987 (Being Civil Cause No.442 of 1985) BETWEEN: - and - HOGG ROBINSON (MW) LUD..........0...+. RESPONDENT Before: The Honourable Mr. Justice Unyolo, J. A. . The Honourable Mr. Justice Kalaile, J. A. ~ Nakanga, Counsel for the appellant Msaka, Counsel for the respondent Kadyakale, Law Clerk Longwe, Court Reporter JUDQVENT The facts of the case are that the appellant claims for damages for false imprisonment. He was employed as a driver at the material time by the respondent who suspected him of stealing either cash or petrol through the respondent's motor vehicle which was under the use of a Mr. Whitton, another senior employee of the respondent. It was the appellant's evidence that on 12th June, 1985, Mr. Raitano, another senior employee in the respondent's firm, called him into his office at about 12.55 p.m. and requested the appellant to accompany him to the Blantyre Police Station. The appellant agreed to do so and was indeed accompanied to the Police Station by Kaitano who upon arrival thereat produced an envelope from his pocket and handed the same to a police officer. When making the handover, Kaitano said "This is Mr. Nakhumwa", | The envelope contained petty cash vouchers, cash sales and petrol requisitions. It was the appellant's evidence that the policeman ask why he was brought to the police station, and, when he, the appellant, said that he did not know the reason, he was told by the policeman that the documents were false ones and that he had stolen the money or the petrol. The appellant also stated that Kaitano confirmed that the documents were false. When the appellant checked the documents he found that there was, on each set, a petty cash voucher, supported by a cash receipt, and a fuel requisition order, signed by Whitton, the user of the car in question. ‘The appellant explained that he actually got cash on the petty cash voucher to buy fuel for Whitton's car, and thereupon demanded that Whitton be brought to the police station to explain the situation. When he arrived, Whitton admitted that he had bought fuel on the requisitions but denied ever sending the appellant to make the actual purchases. The appellant's shoes were then removed and he vas lecked up for six days before securing bail. 2) ones In the criminal trial that followed, the appellant was acquitted by the magistrate's court on the criminal charges preferred against him, In the High Court, he succeeded in his claim of false imprisonment lasting for about 30 minutes between the respondent's offices and the Blantyre police station and was on these grounds awarded K1,000.00 damages and costs on the subordinate court's scale. The appellant however failed in his claim for false imprisonment in respect of the six days which he spent in police custody. The appeal to this court is against the whole of the High Court decision including time award of costs on the subordinate courtts scale. The exact wording of the grounds of appeal were that; "(a) The learned Judge erred in law and fact in holding that the respondent did not direct and procure the the police to arrest and take the appellant into custody. (b) The learned Judge erred in law in awarding the appellant costs on the Magistrate's scale. (c) The decision was against the weight of evidence." To add spice to the appeal, there was in fact a cross appeal worded in the following terms: "1. "The imprisonment for 6 days at the police station was pleaded as, and was in fact a separate cause of action. 2. Although the award of costs is left to the discretion of the Judge such discretion should be exercise judicially and upon correct principles. 3. The learned Judge, if he had applied correct _ ‘principles and had exercised his descretion judicially; should have awarded costs to the respondent for successfully resisting the imprisonment at the police station." Let us look at the first ground of appeal which Mr. Nakanga argued together with the final ground of appeal, to wit, that the decision; was against the weight of evidence. Mr. Nakanga referred the court to the following passage from Clerk & Lindsell on Torts 15th Ed. para 14-20 on page 669: aot Gen 29 OP OF ~ 8 Pes am we “Gered, oy "If the arrest or other trespass is effected by a purely ministerial officer and not under the authority of the court, the defendant must clearly be answerable if he in fact authorised the act in question. It is not necessary that he should in terms have made a request or demand; it is enough if he makes a charge on which it becomes the duty of the constable to act. But it is quite a different thing if a party simply gives information, and the constable thereupon acts according to his own judgment. In such a case the informer incurs no respansibility in the tort of false imprisonment." Before we proceed any further in this examination it is proper that we should have one term clearly defined. What do we mean by making a charge? In Criminal Law, a charge is an accusation - See Osborn's Concise Law Dictionary 7th Ed at p. 70. See also Jowitt's Dictionary of English Law 2nd Ed. Vol. 1 at page 321. In Chintendere v Burroughs Ltd (Civil Cause No. 530 of 1981), Skinner C. J. expressed the test this way in determining charges of false imprisonment: "The crucial issue, the issue of fact upon which this part of the case turns, is whether the defendant's servants merely stated the facts to the police or whether they made a charge against the plaintiff." After evaluating the facts in that case, Skinner C. J. went on to conclude that: "On the evidence I am satisfied that Sudding did not 2. = °> @rder the police td arrest the plaintiff, either in the... sense of giving them a direct order or laying a criminal charge against the plaintiff. I accept his evidence that he conveyed his suspicion to the police who on their own responsibility took the plaintiff into custody." The approach adopted by Skinner C. J., appears to be the proper one to follow and also seems to be consistent with the authorities. In the case before us, what Kaitano should have done in order not to implicate his employers in a tortious action was to proffer information to the police rather than making a charge or accusation. We can illustrate this as follows. Providing such information could have been so done by stating to the Police that either Whitton or Nakhumwa were suspected of stealing either cash or petrol fuel from motor vehicle No. BF 8022 as evidenced by the attached vouchers and receipts. Kaitano could then have requested the police to mount investigations. Furthermore, it should be noted that for the appellant to obtain the petty cash from the respondent's cashier, it was necessary for Whitton, the actual user of the car, to surrender the car keys to the appellant as evidence of authority to collect the said petty cash for use in purchasing the fuel for BF 8022. This was established by the appellant in re-examination as the standard practice for the two drivers who were employed by the respondent. No evidence in rebuttal of this point was adduced by the respondent's witnesses in the court below. Now, on the facts at hand, it would seem quite obvious that the other suspect should have been Whitton. If the facts were presented as suggested, both the appellant and Whitton would have been the subject of investigations and neither would have: succeeded in an action for false imprisonment if he was later acquitted in the courts as the police would be acting according to their own judgment. In our opinion the respondents would have been offering information to the police in those circumstances. «~ k = As the case stands, the respondents made a charge on which it became the duty of the police to act. Kaitano called the appellant to his office at 12.55 and asked the appellant to accompany him to the police station. No reason was given for going to the police station. The trial Judge rejected Kaitano's contention that the appellant willingly went to the police station in order to explain the fuel purchases. If what Kaitano stated was indeed true then the appellant would have requested the presence of Whitton right there in Kaitano's office in order to explain the cash vouchers and the attendant receipts. It is our view that the trial Judge correctly disbelieved the respondents on this point and found for the plaintiff with regard to the 30 minute detention. We are in complete agreement with the Judge's findings regarding the false imprisonment for the 30 minute duration. We also hold that the Judge's award of damages relating thereto was proper in every respect. With regard to the 6 day period, this is what the Learned Judge had to say: "I will now consider the situation at the Police station. After Kaitano had given the documents to the police officer the police officer asked for an explanation. The plaintiff gave an explanation. After he was not satisfied, he summoned Mr. Whitton to come and explain, and thereafter the plaintiff was taken into custody by the police themselves after verifying the documents and investigating from Mr. Whitton. The detention thereafter was at the initiative of the police. They could have told him to go back, if they did not suspect anything. In the premises, therefore, it cannot be said that the defendant procured the police to detain him. I disallow this claim." At the police station Whitton denied ever sending the appellant to purchase fuel for BF 8022. Because of that denial and the presentation of the so called false documents, the appellant's shoes were removed and he was placed in a cell where he remained for six days. He stated that he slept on the floor with no blankets during that period. This is the version which the trial Judge believed and the said Judge totally disbelieved most of what Kaitano and Whitton gave in evidence. Again we concur with the Judge's findings in this regard. But we differ with him on his application of the legal principles involved. So that in applying the Skinner test as stated in the Chintendere case, we find that Kaitano and Whitton proffered a criminal charge against the appellant. They went much further than merely offering information to the police officer. The facts before the respondents would have been such as to place both Whitton and Nakhumwa subject to investigation. But the presentation at the police station left the officer on duty with no option but to lock up the appellant: As they say, the dice was cast. The respondents servants did not merely state the facts to the police but actually made a charge against the appellant. The appellant's appeal on this point succeeds. = 5 on We now turn to the nebulous area of damages. In Chintendere vs Burroughs Ltd (supra), Skinner C. J. stated by way of Obiter dicta that he would have awarded K2,500 for incarcerating a person for three days in similar circumstances to those obtaining in the one under consideration. By way of aithmetical progression the said Chief Justice would have awarded K5,000 for a six day period. We consider’ this @ rather low figures in the circumstances especially since the same Judge awarded K1,000 for the detention of a person for three hours in a police station in Wasili vs Clan Transport (Civil Cause No. 506 of 1981). In that case this is what the learned Chief Justice had to say: "I now turn to the question of damages. The plaintiff was brought to the police station, he was detained for about two to three hours and then released. He suffered loss of dignity mental suffering and humiliation but for a short period only. I award him K1,000.00 as damages therefor." Of equal interest is the recent case of Fordson Banda vs Southern Bottlers Ltd (Civil Cause No. 41 of 1987). an” that case the Icarned Chief Justice awarded K40,000 to a watchman who succeeded in an action for wrongful imprison- ment for almost 29 days. It would seem to us that that was a rather generous award. In the case before us we would award the appellant K10,000 as aggravated damages for the six days which he spent in police custody. The reason why we have made this rather high award is that the respondent's servants, namely Whitton and Keitano persisted even after the acquittal of the appellant in considering him a thief as evidenced in these proceedings. Furthermore we do not think that the proceedings in the magistrate's court were brought about in good faith. The circumstances of that case clearly demonstrate to an independent bystander that there were two suspects to the case. Yet the respondents persisted to the very end in accusing the appellant in both the magistrate's court and «in the High Court Perhaps the following passage from McGregor on Damages 14th Ed. para 1361 on page 925 will give some insight on the point: "However it is submitted that an unsuccessful plea by the defendant that the plaintiff is guilty of the offence charged against him by the defendant should not lead to an aggravation of the damages unless it is shown that the defendant made the charge mala fide. Otherwise a bona fide defendant would be in a dilemma: if he fails to plead the truth of the charge he risks losing the action against him, while if he does plead the truth of the charge he risks an award of ageravated damages against him." As we have endeavoured to show, the respondents acted mala fide in this case by sereening Whitton from proper investigation by the police. Whitton was the user of the car and there was not a jot of evidence to show that the appellant used the car on the dates when BF 8022 used excessive fuel. The documentation showed that the appellant could not have pocketed the money since the fuel was actually placed in the vehicle tank. The obvious suspect should not have been the appellant in the circumstances. oe we Finally, we wish to address our minds to the cross appeal which focused mainly on the matter of costs. Since the appellant has succeeded with regard to the detention in custody for the six day period before this court, plainly the costs can only be on the High Court scale. Section 31 (2) of the Courts Act regulates the position on the issues under consideration. It reads: "If in any such action as aforesaid the High Court is satisfied that there was sufficient reason for bringing the action in the High Court it may allow the costs thereof on the High Court scale or on such subordinate court as it may direct." In The trustees of Dedza Diocese vs Mario Rocha (M. S. C. A. Civil Appeal No. 3 of 1984 Skinner C. J. explained the section in the following terms: "It is, of course, true that our Courts Act does not contain a provision similar to that added to the County Court Act in 1959 but even so, the question of the apparent value of the plaintiff's claim at the time of the commencement of the proceedings is something which a court has to take into consideration when ascertaining whether the action was substantial for the purpose of deciding on whether or not to exercise the discretion provided for in section 31(2). The exercise of that discretion cannot depend on what the plaintiff chooses to claim nor solely on what amount is determined at the trial, What is sufficient reason must be . judged objectively. It would be a sufficient reason for the purpose of the subsection if a plaintiff had at the time the issue of the writ grounds, for supposing that more than K2,500 could be recovered; not a frivolous or optimistic opinion, but what a reasonable litigant properly advised and after fully instructing his Jegal adviser on the facts, would think he could recover." We have already observed that in Chintendere vs Burroughs Ltd (supra) Skinner C. J. would have awarded as much as K2,500 for wrongful imprisonment lasting three days. In Adamare vs Stambuli (M. S. C. A. Civil Cause No. 6 of 1984) false imprisonment lasting yet another three days earned the plaintiff an award of K4,000. For these reasons we award the appellant costs on the High Court scale in the court below. The respondent will also pay the costs of this action. ' The end result is that the appellant will receive K1i1,000 in damages. DELIVERED AT BLANTYRE THIS ...12TH...... DAY OF MAY, 1989 (Signed) L~) 4 UNYOLQ\ J. A. a, f i% v ay ms, Ve ‘ 7s te, ale “* “Sage. (Signed) KALAILE J. A.