Nkhoma v First Merchant Bank (Civil Cause 41 of 2016) [2023] MWHC 119 (9 August 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CIVIL CAUSE NO. 41 OF 2016 BETWEEN: EMILY NKHOMA..........cccsccscccrececececscersescnstseeenanecesenssnorouae sesnasseunens CLAIMANT AND FIRST MERCHANT BANK LIMITED. ........0-cssssereseseeseeercrensesstesseeseeee DEFENDANT CORAM: HONOURABLE JUSTICE T S MASOAMPHAMBE S. Malimbasa, of Counsel for the Applicant Mr Banner, of Counsel for the Respondent Mr Tweya, Official Interpreter G. Chilombo, Court Reporter JUDGMENT 1.0 INTRODUCTION The Claimant commenced the present action by writ of summons, for damages for false imprisonment, malicious prosecution, defamation, reimbursement of legal fees and costs of action. The dispute arises from an employment relationship. The Claimant was at all material times the Defendant’s employee as Agency Manager for the First Merchant Bank Liwonde Agency until on or about 31th March 2014, when the Head of Human Resources, Mr Prescott Nkhata of First Merchant Bank, informed the Claimant about her summary dismissal from employment because of misconduct. The relationship between the Claimant and the Defendant went sour as the Claimant was arrested by the Police and 1|Page taken into custody where she was detained for two days that is from the 4" of November 2013, until 6 November 2013 when she was granted bail by the Liwonde Magistrate Court. 2.0 SWORN STATEMENT 2.1 Claimant’s case The Claimant’s claim is for damages for false imprisonment, malicious prosecution, defamation, reimbursement for legal fees and the costs of action. The Claimant states that at the material time she was an employee of the Defendant herein a bank and posted at the Defendant’s Liwonde Agency. The Claimant claimed that on about the 4" of November 2013 the Defendant directed and procured the police to arrest the Claimant and take her into custody on a charge of stolen money from the defendant’s vault at the Liwonde Agency in the amount of MK31, 340,000-00. It is the Claimant’s story that she was kept in custody from the 4" of November 2013, until 6" Novemebr 2013 when she was granted bail by the Liwonde Magistrate Court. The Claimant stated that the Defendant caused the Claimant to be wrongfully imprisoned and deprived of her liberty for a period of 48 hours. The Claimant was also injured in her reputation in her community and the same caused the Claimant severe shock and mental anguish in addition to being put to considerate trouble, inconvenience, anxiety and expense, all resulting into loss and damage to the Claimant. After about 2 years had elapse the Claimant took out summons to be discharged for want of prosecution under section 247 of the Criminal Procedure and Evidence Code. On 2™ April 2015, the Resident Magistrate sitting at Zomba issued an order discharging the Claimant. The Claimant claimed she was acquitted of all the charges filed against her. The Claimant now claims: (i) Damages for false imprisonment (ii) Damages for malicious prosecution (iii) Damages for defamation (iv) Reimbursement for legal fees MK2,000,000 (v) Costs 2|Page 2.2. The Defendants’ case The Defendant denies causing or procuring the arrest, detention incarceration or the prosecution of the Claimant’s alleged or at all. The Defendant said that he was entitled or under duty, and reported the loss of the sum of MK31, 340,000 to Police. The money was lost from its Vault which the Claimant could not provide an account for. The Defendant claimed the Police had a duty to receive, the Defendant’s report and act on their own judgment to arrest, detain, charge and prosecute the Claimant. The Defendant claimed that they did not dictate to the police what to do with the Claimant and the Defendant did not cause the alleged delays in prosecuting the Claimant. The prosecution was done by the Police. The Defendant denied the alleged or any defamation as the defendant had reasonable cause to report the loss of MK31, 340, 000 to the Police. In short the Defendant denies directing, facilitating or procuring the prosecution of the Claimant. The Police acted on their own professional judgment and expertise and made a determination that an offence had been committed and determined whether or not to prosecute the Claimant. The Defendant denied costs and damages. 3.0 ISSUES FOR DETERMINATION The issues for determination in this action are: (1) Whether the conduct of the Defendant amounted to false imprisonment. (2) Whether the conduct of the Defendant amounted to malicious prosecution. (3) Whether the conduct of the Defendant amounted to defamation. (4) Whether the Defendant should reimburse legal fees paid by the Claimant to his Counsel. (5) Whether costs should be awarded to the Claimant. 4.0 THE LAW Burden and standard of proof It is trite law that a Claimant has the burden of proving the elements of his or her law suit. In the case of Commercial Bank of Malawi v Mhango [2002-2003] MLR 43 (SCA), the Supreme Court of Appeal made the following observations in relation to burden of proof in civil matters: “Ordinarily, the law is that the burden of proof lies on a party who substantially asserts the affirmative of the issue. The principle was stated in the case of Robins v National Trust Co [1927] AC 515 that the burden of proof in any particular case depends on the 3] Page circumstances in which the claim arises. In general, the rule is Ei qui affirmat non qui negat incumbit probatio which means the burden of proof lies on him who alleges, and not him who denies. Lord Megham, again, in Constantine Line v Imperial Smelting Corporation [1943] AC 154, 174 stated that it is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. The judge said that the rule is adopted principally because it is but just that he who invokes the aid of the law should he first to prove his case because in the nature of things, a negative is more difficult to establish than an affirmative. However, in a civil action the burden of proof may be varied by the agreement of the parties see Bond Air Services Lid v Hill [1955] 2 OB 417.” It is also commonplace that the standard of proof is that on a balance of probabilities see Tembo and Others v Shire Bus lines Limited 2004 1 MLR 405. In applying Miller v Minister of Pensions (1947]2 All ER 372, Denning J said: “That degree is well settled, it must carry a reasonable degree of probability, not so high as is required in a criminal case. If the evidence is such that the Tribunal can say; we think it more probable than not the burden is discharged, but ifthe probabilities are equal it is not” The plaintiff must prove that something is more likely. 4.1 _—‘ False imprisonment. The Claimant claims damages for false imprisonment. What constitutes false imprisonment has been stated times without number. The definition in Kanvemba v Malawi Hotels Lid [1991] 14 MLR 157, at 162, is one such case. The court said: “false imprisonment consists of inflicting bodily restraint which is unauthorized and without lawful authority. In order to succeed, the claimant need not prove actual imprisonment in a goal, for imprisonment is other thing but the restraint of a man’s liberty, whether it is in the open field, or in the stocks in the case in the streets as weil as in the common goal.” See Meering v Grahame — White Aviation CO (1919) 122 LT 441 CA. For an action to lie, the imprisonment must be by a defendant or by his 4|Page orders. Where the defendant does no more than state the facts to the police officer, who exercising his discretion decides to make an arrest, there is no remedy by way of action for false imprisonment, where there is reasonable and probable cause for suspicion that a felony has been committed, a police officer can arrest a suspect. See Walters v WH Smith and Son Ltd [1914] LKB 595.” However, for a Defendant to be liable for false imprisonment he or she must lay a charge against the Claimant. It becomes the duty of the police to arrest the Claimant. As was aptly put by Skinner, LJ (as he then was) in the oft-cited case of Chintendere v Boroughs Ltd [1981- 83] 10 MLR 215], false imprisonment will have been proved where: “the Defendant, acting through its servants or agents, ordered the police to arrest the plaintiff, it is imprisonment by the defendant as well as the police and is a ground for action of trespass against the defendant, but if the defendant merely stated the facts to the policemen, who, on their own responsibility took the plaintiff into custody, this is no imprisonment or trespass by the defendant. It comes down to this: if the defendant's servants made a charge upon which it became the duty of the police to act, then it is liable but it is not liable if they gave information and the police acted according to their own judgment.” This is what Chatsika J had to say in Tembo V. Industrial Development Group (1) [1993] (2) MLR 865: “It should be noted that it is the duty of every citizen to give information of an alleged commission of a crime to the police. If while acting on the information so given, the police mount investigations, and the investigations resulting the arrest of the suspect, if the suspect is eventually found to be innocent, he cannot entertain an action in false imprisonment against the citizen who initially supplied the information to the police. If, on the other hand, the citizen, instead of merely supplying information makes a charge to the effect the suspect has committed a crime, and on the strength of the charge, the police arrest the suspect, the suspect would have a cause of action of false imprisonment against 5|Page the citizen who made the charge if it is subsequently found that the suspect is innocent.” In Matanda v Sales Services Limited and Others (1990) 13 MLR at 229 the Court said that: “The crucial issue in cases of false imprisonment is to decide whether the defendant's servants or agents merely stated facts to the police or whether they made a charge on which it became the duty of the police to act then the defendant will be liable if he or his servants or agents gave information by merely conveying their suspicion and the acted according to their own judgment.” Finding of facts regarding the claim for false imprisonment. In so far as what transpired before and after the arrest of the Claimant is concertied, it is only evidence of the Defendant witness hereinafter Yvonne Kaseko, which is helpful to this court. Yvonne Kaseko, the only witness for the Defendant evidently submitted that the police arrived at the Liwonde Agency and questioned Emily Nkhoma and Chimwemwe Mkandawire who were responsible for keeping keys to the vaults about the missing MK31, 340, 000. This evidence was not disputed by the Claimant. Yvonne Kaseko, witness for the Defendant also submitted that the police on their own discretion took both Emly Nkhoma and Chimwemwe Mkandawire in their vehicle to the police station and that during questioning, the Defendant or Defendant employee or its servant was not present. The Claimant also failed to bring evidence to show that the Defendant directed the police to arrest her. The Claimant failed to dispute evidence brought by the Defendant that it was the discretion of the police to arrest the Claimant based on reasonable grounds. As per exhibit “EN 2” brought by the Claimant, it shows the charge sheet was prepared and signed on behalf of Kalupa S/Susp. It also shows that the police laid the charge against the Claimant. There is no evidence which shows that the Defendant directed or instructed ihe police to arrest and charge the Claimant an offence of theft by servant contrary to Section 286(1) of Penal Code. Evidence before this Honourable Court shows that the Police were acting independently based upon reasonable grounds. The Court is then left with the controverted evidence of the Claimant which failed to establish that it was the conduct of the Defendant, through its employees and agents, which occasioned the Claimant personal liberty. This Court is satisfied that the facts submitted by Yvone Kaseko, the Defendant witness have not been discredited or refuted by the Claimant. The Court is satisfied that the Claimant has failed to challenge evidence submitted by the 6|Page Defendant witness Yvonne Kaseko that it was the police, in the circumstances, who were obliged to execute the dictates of the law as it applies to persons who are suspected of committing a crime, to set the Jaw into motion in the present case. It is plainly clear from the evidence that the defendant did not direct the police to arrest the plaintiff. The Defendant merely complained to the police and the police in the execution of its duties, arrested the Claimant. This Court can conclude that the Defendant had reasonable grounds for complaining to the police because, as admitted by the Claimant, that MK31, 340, 000 was missing in the Defendant vault and the custodian of the keys to the vault were the Claimant and her colleague, Chimwemwe Mkandawire. Determination The decision to arrest the Claimant and her colleague was made by the Police based on their independent investigations. The claim for false imprisonment fails. 4.2 Malicious prosecution. The other head of claim filed by the Claimant is Malicious Prosecution. Malicious prosecution is a tort whereby one maliciously and without reasonable and probable cause initiates against another judicial proceeding which terminate in favour of that other and which result in damage to his reputation, person, freedom or property: See “Street on Torts.” 8'" edition Butterworths, 1998 at page 28, and Manda v Ethanol Company Limited (1993) 16 (2) MER 372. A claim for malicious prosecution cannot succeed unless the claimant proves four essential elements, namely: (a) That the Defendant prosecuted or initiated the criminal proceeding against the Claimant. (b) That the Prosecution lacked reasonable and probable cause. (c) That the Defendant acted maliciously (d) That the Prosecution ended in the Claimant favour. This was well explained in the case of Mvula v Norse International Lid 1992 15 MLR 331. It is clear that the police acted independently when arresting the Claimant on the charge of theft by servant. The question remains: was the prosecution without reasonable or probable cause? Two tests settle the issue. 7|Page The first test is articulated in the case of Hicks v Faulker 1878 OB 167 by Hawks J, cited with approval in Herniman v Smith (1938) AC 305, as follows: “An honest belief in the guilty of the accused based upon a full conviction founded upon reasonable grounds; of the existence of a state of circumstances which assuming them to be true would reasonably lead any prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.” The second test comes from local case, Manda v Ethanol Company [1993] 16 (2) MLR 572 in which Mkandawire J held that mere insistence on prosecution when there is no evidence is itself evidence of bad motive or malice. Finding of facts regarding the claim for false imprisonment. Following the arrest of the Claimant, the Defendant through their lawyers Nyirenda & Msisha obtained consent order from the Director of Public Prosecution in 2014 to facilitate the prosecution process. This shows that the prosecution was supposed to be done with the Defendant as prosecutors, as per Claimant witness statement exhibit “EN 3.” According to the Defendant lawyers’ letter dated October 2014, it is clear that the Defendant, through their lawyers, were ready to commence prosecution as soon as possible. 1 would agree with the Claimant that the delay to prosecute the case wes injustice. Defendant aim of obtaining Consent from the Director of Public Prosecution was to facilitate justice. Interests of justice require speedy trial. The fact that the Defendant through their lawyers were prosecutors but never prosecuted the case, clearly shows that they acted without reasonable and probable cause. They started prosecuting the case without believing that the Claimant was guilty of the offence in question. Again, there was no independence in prosecuting this case as they got consent from the DPP to prosecute the Claimant and the Defendant through their lawyers took charge of the case. We cannot to say, without doubt, that the police were in charge of prosecution in this case. In short, failure to prosecute the case by the Defendant is indicative of the fact that the prosecution lacked reasonable and probable cause. 8| Page Determination It is the finding of this court that there is enough evidence on a balance of probabilities that the Claimant was indeed maliciously prosecuted. 4.3 Defamation. Claimant is also claiming damages for defamation. As per the case of Nyirenda v AR Osman and Co [1993] 16(2) MLR 681 at 702, defamation is the publication of any statement which tends to lower a person in the estimation of right thinking members of society generally or which makes them shun or avoid him or to cut him off from society or to expose him to hatred, contempt or ridicule. The Claimant in the present case does not allege that the defendant’s employees or agents published any defamatory statements of the plaintiffs. Claimant only faults the conduct of the defendant and argues that it amounted to defamation. The issue then is, whether the conduct of the defendant through its employees or agents amounted to defamation. In the eighth edition of Gatley On Libel and Slander, at page 42, the learned authors state: “Defamatory imputations are usually conveyed in words written or spoken. But there are other many activities and objects which may convey on imputable defamatory of some person, either of themselves or in their context.” Later, at page 85, the authors proceed to say that:- “Sometimes a mere act may convey a defamatory imputation, if it would be so understood by reason of conventional meaning or by reason of the inference to be drawn from it, whether by ordinary man, or by some person with special knowledge to whom it was published” It was however held, in the case of Ndiwo v Attorney General [1997] MLR 223, that the mere fact that the plaintiff was arrested and subjected to police investigation, did not itself convey the actual guilt of the plaintiff and could not be construed as defamatory of the plaintiff by way of meaning that the plaintiff had in fact committed the offence. 9|Page Finding of facts regarding the claim of defamation. The Claimant’s grounds in support of the claim of defamation herein falls on the fact that following her arrest people in the Claimant’s neighborhood were calling the Claimant a thief. For a Claimant to succeed in a claim for tort of defamation must essentially prove: (a) Those defamatory words were uttered. (b) That the words referred to the Claimant; and {c) That the words were maliciously published In tort of defamation much more is needed. The emphasis in suit of defamation is defamatory words. The offending words must be identified. It is only if these words have been identified, the Claimant can succeed. The Claimant is required to prove that the words were indeed uttered, the words indeed referred to the Claimant, and that the words were maliciously published. It is trite law that the words spoken should impute that the Claimant is a thief or has committed a crime punishable by imprisonment is actionable without proof. The words that people were calling her thief, as reported in the witness statement, if taken in their ordinary meaning, merely suggest that the Claimant was suspected of theft. The Claimant did not adduce any evidence, proving any words, conduct or activity, directed at or done in the presence of the said persons which was or were defamatory of the Claimant. Calling somebody, a thief is slander. Its slander if it can be proved by evidence. The Claimant’s claim on defamation must fail for lack of evidence. Determination It is the finding of this court that claim for defamation has not been supported by evidence and on that ground it must fail. 4.4 Reimbursement of legal fees The Claimant is claiming reimbursement of legal fees in the amount of MK 2 000 000. There is, however, no convincing evidence that the said amount was used for legal fees. There is no documentary evidence that supports her claim. In Smith v Baller [1875] LR 19 EQ 473, Sir Richard Maling V. C had this to say: “It is of great importance to litigants who are unsuccessful that they should not be oppressed into having to pay on excessive amount of costs.” 10| Page All what Richard Maling was trying to say was evidence? You cannot claim the huge sum of MK2. 000,000 without adducing evidence. Determination The court is of opinion that the Defendant claim of reimbursement of legal fees has no merit because of lack of supporting evidence. 5.0 Costs The Defendant has successfully defended the case, on false imprisonment, defamation and reimbursement of legal fees. I therefore, award the Claimant costs for malicious prosecution. The Claimant is awarded 25% of the costs of action. The same to be taxed if not agreed. Made this Wednesday, the 9" day of August, 2023 at Zomba. | Lh { hh UL Mi Texiolus Masoymphambe JUDGE 11 | Page