Katakwe v City of Blantyre (Civil Cause 579 of 1985) [1987] MWHC 19 (22 July 1987)

IN THE HIGH COURT OF MALAWI, BLANTYRE PRINCIPAL REGISTRY CIVIL CAUSE NO.579 OF 1985 BETWEEN : S. W. KATAKWE ....0cccccccccssecrscsecces PLAINTIFF AND CITY OF BLANTYRE ...,.02ce0. ve soe esas eae DEFENDANT Coram: BANDA, J. Chizumila, Counsel for the Plaintiff Msisha/Mwafulirwa, Counsel for the Defendant Kalimbuka Gama, Official Interpreter Phiri, Court Reporter JUDGMENT The plaintiff is suing the defendants for damages for wrongful dismissal and also he is claiming for the return of the tool box or its value. The plaintiff was employed by the defendants from lst of June 1971 as a Carpenter and Joiner. He was at the material time in receipt of a salary of K116.02. He was also entitled to receiving house allowance and tool allowance in addition to leave pay. The circumstances which gave rise to the present action took place in August 1985. It would appear that it became necessary to carry out some repair work at the house of the Headmaster of Chilomoni L. E. A. School. Among workers who were involved in that repair work was the plaintiff. The repair work which was required to be done to the house involved the replacement of iron sheets. It is agreed that two new iron sheets were used and two old iron sheets were removed from the house. The allegation by the defendants against the plaintiff was that he removed two new iron sheets and two old iron sheets from Chilomoni L. E. A. School and took them to his own house for his own use. It was on the basis of the alleged theft that the defendants terminated the plaintiff's employment in their letter dated 26th August 1985. The plaintiff denies the allegation levelled against him and contends, therefore, that his dismissal was wrongful. The plaintiff has stated, in his evidence, that it is not true that he took two new iron sheets and two old iron sheets to his house and that the evidence of Janatu Sandasi to that effect was false. It is significant to note, however, that the plaintiff in his evidence in cross-examination agreed that he was at the material time present at the Chilomoni L. E. A. School together with Janatu Sandasi. He also agreed that in addition to Janatu Sandasi the owner of the house was also present. It was the evidence of the plaintiff that he went to work at Chilomoni on a bicycle and that he normally travelied to Chilomoni on his own bicycle. He also stated that Janatu came for work on this particular day. The plaintiff, although he initially denied making any statement, later agreed when ke was shown the statement that he had made but exnplained the circumstances in which he came to write that statement. He stated that he had agreed to write a statement because if he did not he would lose his job. In that statement the plaintiff agrees that with the authority of his supervisor, Mr. Ntelera, he took "pieces" of iron sheets to his house. The evidence by the defendants to support the allegation that the piaintiff took the iron sheets from Chilomoni L. E. A. School comes from Janatu Sandasi and Mrs. Kaliza. It was Mrs. Kaliza's evidence that she saw one of the men who were repairing her house tie two new iron sheets and two old iron sheets to the carrier of his bicycle and rode away. She stated that she was surprised to observe that the man who took away the iron sheets took a different direction from that which leads tc the offices of the City of Blantyre. She stated that she tcok the view that the man was stealing the iron sheets. She stated that she did not individually know all the men who were working at her house. The evidence of Janatu was that it was in fact the plaintiff who took those sheets. He stated that when the plaintiff was tying the iron sheets to the carrier of his bicycle he, Janatu, remonstrated with nim but that the plaintiff told him that it was not his concern and that his boss, apparently referring to Mr. Ntelera, had given his consent. The plaintiff also agreed that he knew that eny materials left over from any project were collected back to the stores of the City of Blantyre. Mr. Chizgumila, who appeared for the plaintiff, has submitted that on the evidence adduced the plaintiff has established that he was wrongly dismissed. He has contended that the statement allegedly made by the plaintiff has been explained away and that after he had made it he had protested to Mr. Makwinja. Mr. Chizumila has submitted that the fact that the plaintiff protested is sufficient indication of the circumstances in which the statement was made. He further contended that these circumstances coupled with the fact that the items alleged to have been taken by the plaintiff are different from what the plaintiff states in his statement confirms the plaintiff's version of the story. Mr. Chizumila has submitted that there are discrepancies in the evidence of Janatu and that of Mrs. Kaliza. He has argued that Mrs. Kaliza did not know who took the iron sheets and cannot therefore support the evidence of Janatu as to who took the iron sheets. He has argued therefore that it would be dangerous to infer that the person Mrs. Kaliza saw taking the iron sheets was the plaintiff. He argued that the evidence of Janatu cannot be relied upon. He submitted that his evidence was full of contradictions and that very little weight can therefore be attached to what Janatu said. Mr. Chizumila further contended that the fact that the plaintiff initially denied making a statement and later admits does not necessarily make the plaintiff a liar. Mr. Msisha, who appeared for the defendants, has submitted that on the evidence before this Court there can be no doubt that the plaintiff did take the defendants property namely two new and two old iron sheets without the defendants authority. Mr. Msisha has argued that the plaintiff conceded that Ntelera did not have authority to give away the property of the City of Blantyre. Mr. Msisha has contended thet the fact that the plaintiff is denying ever taking the defendants prorerty against his own statement is clear indication that his evidence cannot be relied upon. Mr. Msisha submitted that the evidence before this Court was that the plaintiff was not ccmpelled to make the statement and that the fact that the plaintiff took the defendants property is confirmed by the evidence of Mrs. Kaliza and Sandasi. It was Mr. Msisha's submission that an employer is entitled to terminate an employce's services if the latter is guilty of a misconduct, and he submitted that such misconduct is any act or conduct which is not consistent with the discharge of his duties. He submitted, therefore, that the taking of property was a dishonest act amounting to misconduct entitling the defendants to terminate the plaintiff's services. I have carefully considered the evidence which is adduced before me together with the submissions made by both counsel. While it is true that Mrs. Kaliza did not identify either by face or by name the person she saw taking away the iron sheets, she was however very positive that the person who removed the sheets was one of the men who were repairing her nouse; and that evidence coupled with the evidence of Janatu Sandasi and the statement allegedly made by the plaintiff in his own handwriting provides a foundation on which irresistible inferences can be drawn that it was the plaintiff who removed the iron sheets. As I have already indicated earlier in this judgment the plaintiff agreed that he always went to Chilomoni on a bicycle. He further agreed that Janatu had gone to work on this particular day. la my judgment the taking of property belonging to en employer without the latter's authority is misconduct for it is an act or conduct incosistent with the discharge of an employee's contractual obligations to his employer. Janatu was a hesitant witness but I gained the impression that he was trying his best to remember events which happened almost two years ago. I did not get the impression that he was a man who was trying to tell lies or exaggerate the story he was telling. A hesitant witness is not necessarily a liar. Certainly the evidence of Mrs. Kaliza in isolation and on its own would leave some lacunae but that evidence when it is read together with the evidence of Janatu and what is stated in the statement made by the plaintiff then in my view it becomes very cogent evidence on which a reasonable inference can be made. After carefully considering all the evidence I am satisfied that it was the plaintiff who took away the iron sheets to his own house and that in my judgment was a misconduct which entitled the defendants to terminate his services. [I find, therefore, that the plaintiff has not on a balance of probabilities established that: the termination of his services was wrongful. The claim for wrongful dismissal therefore must fail and it is dismissed with costs. There is the issue of a tool box which has been canvassed before this Court. The only evidence by the plaintiff was his statement that he left the tool box at Chilomoni L. E. A. School and that later on he saw it in the office of the Security Officer. There is no evidence how it was found in the Security Officer's office as the plaintiff, on his own evidence, did not go to Chilomoni when the security officers went to collect the other materials which remained there. The plaintiff conceded in his own evidence that it was his responsibility and concern to take care of his tool box. It is perhaps important to mention that the plaintiff agreed that he was paid his salary up to the time he was dismissed so too his house and tools allowance. He stated that he received both his allowances up to 16th August 1985. I am satisfied that the evidence is not sufficient on which I can find that the plaintiff's tool box is being held by the defendants. Indeed I can find no motive, and none was suggested, why the defendants would continue holding the plaintiff's tool box. This claim too must fail and it is dismissed with costs. PRONOUNCED in open Court this 22nd day of July, 1987 at Blantyre. R. “A. Tie” JUDGE