Meja v Cold Storage Company LTD (Civil Cause 370 of 1987) [1990] MWHC 15 (6 November 1990)

IN VES 7T5R COURT OF DALAWT ' PRINCTPAT, REGISTRY CLVIT, CAUSR NO.370 OF LOR7 REIT AN ¢ Tele MIGIR (UALS) ceo cee cece ee eee eee ee @POAIT LEP - ando- COLD SVORAGM COMPANY TTD. . cece cere e eww e ne oD SP ENDAN? ener ameeet ei an one ne Coram: PEXABDATYIRE, J, Chiume, Counsel for the Plaintiff Nisiska, Counsel for the Befendant Manonda (Tics), Official Interpreter Tongyve, Court Reporter ‘ JUDE REY the plaintif€—& broudnat the action in tris matter acainst the defendant claiming snecial andi general damaqes for trong- ful dismissal, false imprisonment and defamation of character. The statenent of claiy gives Getails of the special damages clained. The plaintiff's contention is that the defendant through its servants, wrongfully dismissed and imprisoned him, It is also contended that the defendant throuqh its servants, published defamatory words of the plaintiff, to wit, that the plaintif? vas a thief. Tie defendant has denied all the allegations. Tk is common sense that the plaintiff£ was eriployed by the defendant as an audit assistant. According to the Plaintiff his duties vere avona other thinds compiling sales journal, checking of nominal balances, purchasing of crocodile skins, selling of meat and bone meal and tallow. Tt was not his resnonsibility to Check invoices and cash sale receipts as these cane to him already checkad by the resnec- tive cashiers and chief cashier. His duties were only to enter the various invoices and cash gale receipts in the sales journal. Tt was nok even oart oF his john to check whetner any of these dociwwents were missing, According to the defendant, hovever, the plaintiff had to chee! the invoices and cash sale recatots before entering then in the sales journal. He had te check the totals and the sequence of numbers hetore vosting thea in the sales journal. Tt was also his resvonsibility to sea to it that all the invoices and receipts vere available and if any of then nissed, it was his duty to report to management immediately. ' AP. ees» ‘ Perhans at this ‘juncture T should aivala brief outline of the sales vrocedure at the defendant company. As the name vould suggest the defendant deals in meat and aeat products. There are three wain areas of operation: beef, port; and fish sections. Mach of these three sections has a sales sunervisor and a cashier. There is then the chief cashier to vhom the sectional or departmental cashiers pay the noney callectee in their rasnective denartments., “he alleged fraud oceurred in the Cish deoartment. At the mate- rial time, the fish salas supervisor was Mr, Ningstey d, Mhainho while tha eashier vas fic. Tareas ieanda, Tha promrmdure vas that fish custoners «ould first go to Mr. jitamho to Place their orders. Mr. Mtanho would then issue cash sale receipts in triplicate. he original cony, white in colour, duplicate, pink, and triplicate, green. “he white and pints conies, i.e. the original and duplicate, vere handed to the custower while the sales supervisor retained the green copy, the triplicate. The customer would then take the “wo copies to the cashier to whom payment vag made. vhe eashier vould stamp both copies as naid and raturn the white copy to the customer and retain the nink cooy. The eustoaner vould then go to the cold room to collect his fish on pre- sentation of his white cony duly stamped by the cashier. At the end of the day the cashier vould count all the money collected and nae a tapping of all the pint copies. The total on the tanping had to tally with the actual cash. The cashier would then take the cash and the tapping and receints to the chief cashier who would in turn count the money and compare it wita the tapping. ‘The cashier vould tate back the cash sale receipts with him. Tk was not the chief cashier's job to cheg: the cash sale receipts. The following morning the cashier sent the cash sale receipts (pink copies) to the audit section where the plaintiff varkec. On his part the chieF cashier vonld nrepare the cash for banking and then compile a cash reconciliation sheet. As ror the sales supervisor, at tire end of the day, he checx the sales made from the green copies and then prenare a stock sheet. All the qreen copies vere then sent to the audit section for checking and comparison with the pink copies. ed As has already been stated above, once these various receints reached the audit section, the plaintiff merely posted thes in the sales journal. On the other hand it is contended by the defendant that the plaintiff bad te compare the nink and green copies and chect the serial numbers oefore posting then, He also had to see to it that all the receipts vere available. Naving qiven a brief outline of the plaintiff's duties and the sales procedure at the defendant comnany, I must no-y come to Ene events of 29th March, 1984, Tk was the Mlaintif€'s evidence that during Lunch hour of that day he was chatting with lr. Mainia in his office. At about Afacues 1.39 nom. fie. Mara and fir. jitambo burst into his of Cice ana charged him with haying stolen cornmany money. te denied the allegation but the tvo got hold of hin and dragged him out of the office. He struqgqled to resist the arrest but Mr. Hara and tir, ifhambo overnovered him, They draqged hin and forced him into Mr. Chilsvanie's car vaich vas waiting outside, His arrestors joined him in the cor and he was taven to Fiscal Police ak “anabar House. While at Wanabar he vas strinped and mace to Lie on a table, then he was slashed with a hosepipe and forced to write a statement that mas dictated to him by the Potice, “hereafter he vas taen to Chichiri Prison ehere he was kent in custedy for 22 days before he vas released on bail, We deseribed the conditions at. Chichirt Prison as appalling. Mr. Randulu was one of the veteran fish customers at the defendant company. He was present when tir. Nara and lr, Mtambo were draqging the plaintiff. He thought that the plaintiff was sick and so he vent to the scene intending to assist. He asked what was the matter but in reply Mr. Mtambo shouted that the plaintif£ was a thief and had stolen company money. Mr. Kandulu demonstrated in court hoy the plainti’f was dragged into Mr. Chikwanie's car. When the plaintiff vas released on bail he went to the defendant's company only to discover that he vas dis missed. The defendant's version of the events of 30th March, 1984 is entirely different. It was the defendant's case that the plaintiff was arrested by Sgt. Muleya and not by Mr, Wara or Mr. Mtambo. Perhaps [ should aet out the evidener of the police officer in some detail. [Jt was his testimony that in the afternoon of 30th tarech, 1°84 he got a phone call from lir, Vat, the then general manager of the defendant company. Mr, Vat reported that there was a fraud at his company and he asked for assistance, [ir. Vat did not have any suspect in mind. Since Sgt. Muleya’ had no transport, the general manager sent him Mr. Chilwanje's car. The car vas sent on the police officer's request. On arrival at the defendant company he went straight to the general mana- ger. Since it was’ important that the police officer should understand the working machinery of the defendant company the general manager introduced hin to Mr. Bara who was the office supervisor. The police officer intervieved Mr. Nara in the latter's office. Mr. Hara did not have anybody as a suspect. Since the frand was in che fish department the police officer proceeded to interview officers in that cenart- nent. “rom Mr. Hara he went to fr. Mambo whom he intervieved in his office, ‘hereafter he went to the cashier, Hr. Mwenda, After Interviewing Ir. Muenda, the police officer formed the impression that this Mvenda vas a party to the alleged fraud. Sgt, Muleya then got IMwenda and together they went to the plaintiff's office. ‘They found him alone. Yoon interviewing the plaintiff, he made up his mind to arrest these two officers for further interrogation. He then arrested the plaintiff and Ihrenda and took them to ’ SA amie 2 Mr. Chixtwante'’s car. He then asked bir. Bara and fir. Mambo to accompany him to Police so that they should make state- ments, At Kanabar House the plaintiff made a voluntary statement and there was no beating at all. Yhereafter the police officer decided to put the plaintiff and tivenda in custody pending further investigations. Ut: was Sgt. Muleya’s evidence that it was he who had arrested the plaintiff and it was also he who put the plaintiff in e@eustody. We was satisfied that an offence was comnaitted and thereafter he made several trips to the defendant company for further investigations, Finally criminal charces were made against the plaintif€, Myenda anc Nauya who tras then the defendant's internal auditor. T now set to consider the claim for wrongful dismissal. T thins that the Starting point should be section 1l1(a) of the Fmployment Act. Vhis statutory provision empovers an employer to summarily dismiss an employee when the Jaktex is guilty of misconduct... Besides this statutory provision there is an abundance of case authority stating precisely the same thing that an employer is entitled to summarily dismiss an employee where the employee is guilty of misconduct or does anything incompatible or inconsistent with the ful- Filment of the express or implied conditions of his duties. Tn this regard T can only cite the well 'tnown cases of Gearge Nyirenda_v. 'ujeri Tea Estates ltd, Civil Cause No. 507 of 1981 (unreported); Wasili v. Clan ransport Utd, Civil Cause No. 596 of 1981 (aireperted? he to onal" ainemta to misconduct: it was said in the Wasili case that - "It has been said time and again by the court that there is no fived rule of la? setting out the degree of mis- conduct which will justify dismissal. “he general rule . is that anything which is incompatible with the due or | faithful discharge of his duty to his employer, the employer is justified in dismissing him, even though the incompatible thing is done outside the service". In the instant case the defendant has pleaded that Ve it was justified in dismissing the plaintiff. What vere the circumstances of his dismissal? It was Mr. Hara's evi- dence that he had a report that some cash sale receints were missing. He then contacted the plaintiff who produced g the missing receiots. Indeed it is not in disnute that ® some cash sales missed, ‘The plaintiff's explanation was that the case sales were not deliberately misplaced. Acting on this report Mr. Hara made a physical check and he disco- vered that quite a number of cash sales had not been posted in sales journal maintained by the plaintiff. “here vere also various amounts of woney not recorded in the sales journal. All these vere put to the plaintiff in cross evani- nation and his reply vas that they were mere omissions. As for the missing receints he said he could not have known a that some receipts were missing since it was not his ach ft to check. Having carefully evramined the evidence I find it as a fact that it was in fact the plaintiff's duty to , BS nuns check the sequence of numbers of cash sale receipts and to compare the pink copies with the green copies before entering them in the sales journal. Tf what the plaintiff said is correct that he was blindly posting the cash sales and invoices without checting, then it only means that the sales journal he maintained vould served no purpose at all, Surely as Mr. Hara said, the purpose of the sales journal was to ensnre that all was well. Tf the plaintiff chacted as he was supposed to do, he could easily have known thak some cash sales were missing. This could have been reported to management immediately and the fraud arrested, Tory left in no doubt that the cash sales vere deliberately misled so as to cover up the fraud, : Heenda was an accomplice, but 1 think that his evidence is amply corroborated. le testified that Nauya and the plaintiff used to “borrow company poney from him and it was aqreed that some cash sales should be hidden to conceal the malpractice. “hat evyplained why a number of cash sales vere missing from the sales journai. The plaintiff{-was acquitted on criminal charges. But this is a civil case where the standard of proof is on a balance of probability. 7 think the evidence points to one thing and that is that the plain- tiff was not only aware of the fraud but that there is evi- dence to suggest that he vas a party to it. In his statement to police the plaintiff said that he used to “borrow” company money from Mveanda. T do not agree that the statement was recorded in circumstances stated by the plaintiff. There is ample evidence that there was no beating at Kanabar House. All in all & Find that the plaintiff's conduct vas wholly incompatible and totally inconsistent vith the faithful execution of his duties. tn these circumstances Jf aqrer vith tir, Msiska that the defendant was entitled to dismiss the plaintiff summarily. ‘he claim for weengful dismissal. must therefore be dismissed. ' . I now move onto to false imprisonient. “here can be no doubt whatsoever that the plaintif€€ was arrested on 30th March, 1984 and was later put in custody at Chichiri Prison where he languished for sone 22 days before he was released on bail. AS a ratter of fact his fhaprisonnent started richt away at the defendant's premises when there was restraint on his personal liberty. Ne was a prisoner at Kanabar House and Chichiri Prison «as the climax of his imprisonment. But the cuestion for determination is chether it was the defendant "ho had imprisoned him. Tha Lav vas vell stated in the case C. S. Chintendere v. Burroughs Utd, Civil Cause Wo. 539 of 188T Tunreported). *T£ the defendant. acting through its servants or agents ordered the police to arrest the plaincif®, it is inpri- sonment by the defendant as well as hy the police and is a ground for an action of tresnass against the defendant; hut if the defendant merely stated the facts to the policemen, who on their responsibility too’ the nlaintiff 4 S/. "into custody, this is no imprisonment or trespass by the defendant. Tk exmes dom to this: if the defendant's servants made a charve on -Aiich it became the duty of the police to acre then it is liable: but it is not Liable if they gave intommtion and the police acted according to their ovm judgement”, Tn the instant case, can it be said thak the defendant Yaid a charge against the plaintiff? Accardina to the plain- Ciff, it was ifr, Yara and Mr. itambo who arrested him. They burst into his of Fice and said he had stolen company money. ‘they then dragged hin out of his office and forced him into Mr. Chikwanie's car. Mr. Mainja and iir. Mandulu sav all this, Iir. Mandulu even made a demonstration of the cragqging in court. Surely if this evidence is to be belteved then there can be no doubt that it vas the defen- Gant who arrested and imprisoned the plaintiff. Aaainst this, hovever, is the defendant's evidence that it was Sqt. tuleya who made the arrest and the imprisonment. T have to decide whether to believe the plaintiff or the defendant, Jt is really a question of eredibility. looking at the plaintiff's evidence surely one is bound to find it Aiffienlt to believe, The plaintiff did not impress me as a witness of truth. Mr, Hara was a' senior officer and if there was any need at all to drag the plaintiff, he could not have done it himself. He could easily have sunmnoned the lover ranks to do that. TT had the privileae of seeing Ur. Hara in the vitness box and he struck me as a resnonsible man, aA man who could not hava draqaed the plaintiff the vay the plaintiff wants this court to believe. Tiainja coneedad that he vas a very close Friend of the plaintiff € and that they had discussed this case several times. fT think this was a planned strategy to sislead the court. As for «andulu, no sane-man can drag a sick person the way he demonstrated in court. fandulu might have scored some good points if he was on the stage on a drama Festival, but as a court witness, he sas thoroughly bad. In the result, £ do not aqree that ik was Mr. Mara and ile. titambo who arrested and imorisoned the nlainticf. I found the evidence of Sgt. Fiuleya to be unassailable. According to his evidence. Tir. Vat merely laid information to the police. He only asec for police assistance vithout naming any suspect. “When Sgt. Muleya went to the defendant's premises, he made his ovn enquiries and satisfied himself that an offence had bean committed beiore making any arrests, On the hasis of the interviews he foroued the impression that the plaintiff and itrmenda vera parties to the alleded fraud, Ne then varned them accordingly and finally arrested them, He took them to Eanabar Mouse for further questioning and decided to nut then in custody. On these facts it cannot be said that the defendant laid a charade. It appears to me that all that lr. Vat did vas to merely set the judicial process in motion anc in arresting and detaining the nlainti Tf the police did so in their own wisdom, The claim for false imprisonnent must necessarily be dismissed. Pfs ean tT now come to the last claim of this action and that is defamation. I must say at the outset that this claim is very feeble, T have already held that the defendant did not make a charge against the plaintiff. AL Mr. Vat did was to report a fraud without naming any suspect. Buk then it is contended that while arresting the plaintiff in his office Mr. Hara and Mr. Mhambo said that the plainkiff had stolen money and this was said in the presence of Mainia. T have already found thak Iir. Hara and Mr. Mtambo did not arrest the plaintiff. Tir. Mainta was not jn the plaintiff's office and the alleged defamatory words were never said. “hen came the evidence of Fandulu that when the plaintiff l was being dragged he, “andulu, went to the scene and asked as to what had happened. , Tn reply Mr. Mtambo shouted loudly that the plaintiff had stolen money. ‘This can hardly he believed, why should Mr. Mtambo shout! In any case T have already found that there was ‘no dragging at all. The claim for defamation is also dismissed. In the result the olaintif€’s claim is dismissed in its entirety with costs. Pronounced in open Court this Gth day of November, 1890 at Blantyre. . , A a AY a “7 Ve MR. Meandawire { JUDGE