Gondwe v AG (Civil Cause 81 of 1994) [1995] MWHCCiv 29 (10 May 1995)

• IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 81 OF 1994 • I y BETWEEN: W M GONDWE •••••••••••••••••••••••••••••••••••••••••••• PLAINTIFF - and - CORAM: TEMBO, J Msiska, Counsel for the Plaintiff Chigawa, Counsel for the Defendant Ngulube, Official Interpreter The plaintiff, by a writ of summons is, from the defendant: RULING (a) th~ee months pay; (b) gratuity and pension; (c) damages for wrongful dismissal; and (d) damages for false imprisonment and unlawful detention for 9 months and costs of this action. in The statement of claim reveals that the defendant was employed by the Malawi Government the Police Force at rank of full Insr,ector on 1st April, 1969 until January, 1976 when he was summarily dismissed at the rank of Assistant Superintendent of Police. The re~~ons for his dismissal are alleged to have been based on frabricated accusations that the plaintiff's mother was a rebel based in Dar-es-Salaam in Tanzania who had been detained when she came to Malawi to condole the death of her lat~ brother in 1976; that the plaintiff was arrested on March 6th, 1976, by the police who took the plaintiff to Chichiri prison and later unlawfully detained him at Mikuyu Prison until 10th December 19 76, when he was rel <:;ased with out charge; and that neither the plaintiff nor the plaintiff's mother was a rebel, and that as a matter of fact the plaintiff has expressly stated in law abiding citiz~n his statement of claim that he was and is a of the Republic of Malawi. then In accordance with paragraph 5 of the defence, counsel for the defendant has raised a preliminary cbjection to the cause of action of the plaintiff, namely that the same is statute barred by the operation of section 4 (1) (a) of the Limitation Act, Cap 6: 02. I should first determine that issue as a preliminary matter. It is understood by both parties that if, in my determination thereof, thereupon, both parties have agreed Consequent that . I j I in in that stated accordance with the main, coun.sel for In making his submission, the the plaintiff's defendant statement of claim, the plaintiff had heen dismissed from his employment and taken into custody in 1976, in particular, from then at least 6th March eighteen years had elapsed; that in such a case the cause of the plaintiff was definitely statute barred under action of section 4 the Limitation Act; which provides as (1) follows:- to 10th December, 1976; that since (a) of "The the following actions shall not be brought after expiration of six years from the date on which the cause of action arose, that is to say actions founded on contract or tort". in the view of Counsel for the defendant, And cause of action is founded on tort. the plaintiff I s On his part, counsel for the plaintiff urged me to find that the Limitation Act was not applicable to the plaintiff's action He and that I should, therefore determine to hear the action. gave a number of reasons therefor which I intend to consider one by one hereinbelow. But before I do so, let me offer a comment on the propriety or lack of same, of the defendant's submission of the statute of limitation in this case. To begin with, I find that the defendant has rightly made that submission in that the cause of action, in the instant case, arose some eighteen years ago; namely the date on or about 10th December, 1976, when there was in respect of this action a person in existence capable of suing and another person in existence who could have been sued then. -V Buttler (1949)2 ALL E.~. at o. 228). Thus, the cause of action the in this case arose on or about 10th Decem"ber 1976 when the from his employment with plaintiff had been dismissed defendant and also at the time when he was released from the detention without being charged. the case of P. B. Policies at Lloyd I s ( Please see It is also expedient that I, at this stag2, take a the policy of the Limitation l\.ct. say thereon General Civil Cause No. 1855 of 1993 (unreported): in the case of Ali Mahomed Waka -V- The 0ttorney _ look at Justic? Tam b aJ.a had this to "Perhaps it would be pertinent to bear in mind the essential purpose of statutes of limitation. Regarding such statute, Best, C. J., in the case of A' Court -V- Gross (a) E . R. Vol. 130 at page 541, said - 'It is, as judges, an act of peace. often more of cruelty forbids us Christianity payment of a debt which rendered the debter unable to discharge' . I have heard it often called by great Lonq dormant claims have them. the time and misfortune have to attempt enforcing than of justice in ' - - --- - ---- - - - - - 3 - It is also the aim of such statute to protect defendants who have .since lost evidence to dispose a stale claim and to encourage persons with good claims them with reasonable speed". to pursue the case of Board of Trade -V- Cayzer Irvine and Company In (1927) A. C. at page 628, Lord Atkinson had this to say thereon - to regard the Statute of Limitation... 11 With the whole purpose of this Limitation Act, is to apply to persons who have good causes of action which they could, if so disposed, enforce, and to deprive them of the power of enforcing them after they have lain by for the number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use". then, in particular that, In demonstrating that his client's action is not statute barred as submitted by counsel for the defendant, Mr Msiska has urged me to take judicial notice of the prevailing political and legal climate in the country on or a~out December, 1976 when the plaintiff was released from detention and also dismissed from the plaintiff could not employment; have readily sued the defendant in that the Government of the day frorn was very oppressive; and further detention agents of the defendant had cautioned the plaintiff against the taking of any action at all; that in such a case the plaintiff's action should, therefore, not be held to be statute barred. to afford to his client an extension or suspension of the limitation period on the ground that the plaintiff had suffered from disability. With respect to counsel for the plaintiff, the law on this point is quite clear and is in a state which would not enable me grant to for. the plaintiff Section 21 together with section 2 (3) (a) thereof provide as follows thereon - In effect, Mr Msiska is asking me the Limitation Act as read that upon his release the suspension prayed the extension or (1) of ~ 11 21 (1) If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when the person ceased to be under a first occurred, disability or died, whichever notwistanding that the period of limitation has expired". event "2 ( 3) (a) For the purposes of this Act, deemed to be under a disability while he unsound mind". a person shall be is a minor or of The plaintiff did not suffer from any disability in the context of the legislative provisions quoted above, in that the plaintiff was neither a minor nor a person of unsound mind. Consequently, the limitation period under section 4 (1) (a) of the Limitation Act cannot be extended or suspended so as to run from a date that would save the action of the plaintiff from being statute barred. As I have already noted above, the cause of action in the instant case arose on or about 10th December, 1976, to-date some eighteen years ago. J~, ~ ~ l1i .'Cl): w.,..,.. - 4 - l aw the co ur t can extcn-:'1 t,lr Msi ska has further submi tt ecJ th a t 1 should hold thn.t at common the circumstances in which a person would he entitled to an extension or suspension of the limita tio n period to cover th e situation in respect of which the in the instant case 1,;as prior to the holdin g of the plaint if f refere n dum in the country, in 1992 . He a l so s u bmi tt eC that such l aw in Malawi must be the posi t ion a s Common Law was received under the Order in Council o f 1 9 02 . lhth respe ct, I would not accept th e submission of counsel in that re g ard as t he provisions of the statute in q uestion ar e very cl ea r re ga rding th e que stion of dis ability. Besides that counsel has not satisfi ed me that t he st atutory provis ion s q uot ed above regar~ in g the ext ensi on or suspen sion of the limitation pe riod were merely a codif ication of t he po sit i o n at Common Law. For this and indeed also th e earlier p oint , see the decision of Justice Tarn;-:>al2. in Ali t-iahomed lvaka case c ite d above. Mr Msiska further urge d me to hold that under equity the defend a nt cannot raise the statute of limitation as , he alleged, i t was the act of the defendant which ha d ren d ered the plai ntiff n ot to sue within the limitation o er ioc1. t•! r Msiska referred me to the remarks ma~e by Justice T ambala in the l\li Ma homed Haka's case , as follows - In that res pee t th e view th At havi ng created " I wo uld, however, accept the ola:i.ntiff to co n di tions which ma de i t ir1 p ossi b le for JiMitation c o mmen ce turn pe riod, i t would be r ou nd an d use It is theref ore the p laintiff's arqu me nt that th e EJ?pli c:ati on of the Lin~itation this case would be t ant amo unt to usiwJ ;:i an action against im r ro pe r .statute as an instrument of Frau-J". the def e n d an ts a clefenc e. them within for the Limitation Act as facts of th e th e l\c t to to that c~se, . Justice ,:.:: l "' di d not accept the subrnissi on of the p lain tiff to the '1ecn q uilty of fr2u c1 whP-r -211pon the T hese were Pi th res ne ct t o c01i nr;?l , e ven on the fact s o f 'f ;"l r,1 '. effect t ha t operat ion o f the words of Tam bala , J th e Limitation Act ha 6 to be sus pended . th e defe n da nt ha d - I~ :-.," rH 1 c, a ;-i ,::: l:. io11 s t a tut e of li 'T'i t..1t ion . "It wo ul d seem th a t not e v ery act o ·f fr a urJ •..:oul cl suspend th I? oper a tion of t ha t t:1 ,," cl e:~enclant's fraud or '; ;;~s0 <! on result th e the right of action rnust 0c conc e;::i 1 P,J by the frat i:'i of t:w d efendant. t he Limitation (a. ) In Act. t he p lainti f f ' s action is not Ac:Jain i t is not h e in q claim ed that the b as ed on frauc. r i ght of action was conce a l e i:1 the defenda nt 's f r audulent con (~l1ct. a111 of th 0 . vi ew that the p l aintiff has not establis:, e .:-J th e k in -:~ of f1-au cl whir::h woul(1 suspend the o pe ration of the>. Limi tation l\ct ". See section 2S instant case th e plai nt iff by 'I'o achieve frorn I ( b ) of th e ;:1rd the reasoninr:r of Tarn;_,ala, J on this point ancl the 1;,u 1x iission of I I ful ly aclop t thot retJar ,::l . indeed rejec t Beside s t he inst a nt case, that th e cause of action of th e p l a intiff wa.3 fo u n de d on tort. ;::, l aintiff would have oeen ~')erfe ctly l\.s suc h, had he done so , th e li mitation peri od entit le d in law p laintiff i n in to have institut ed within th at l e t m2 observe:; t:1 e I ::ind , t1~1at ': h e - - 5 - a n action against the defe n rJ ant.s pursuant to the provi sio n s of t he Civil Procedure ( S uits by or Ag a in st the Gover nm ent or Pub l ic Officers) Act , Cap 6 : 01 of In Osbo rn' s a tort, a t p a ge Concise Law Dictionary S i x th C:I 3 27 , is defined as fo ll ows - 1'..l y John Durke , the Laws of i1~nl;::1.wi . " a wrong . An act which c a us es h 2. r m t o a d e t e rmin a t e p ers o n , whether intentionally o r not, not b ein ~ th e h reac h of a d u ty arising out of a pe r s onal r e l a tion o r c ontrac t , a n d whic\1 is either contrar y to l c:1H , as a n o rn i .ss ion or a vi o l 2 t ion of a n a b solute ri g ht . r cine cJy is a common l aw action f o r unli ~ ui ~a t ea d a mage s , a nd wh ic;, is n ot exclusively th e b r ea ch o f the h r?-ach of a trust or oth e r merely e q uita b l e obli g ation". a contract or A c ivil wro n ·;:; ·.-1hi c h foe th e Ha ving so f ou nd , that the p laintiff' s cau se o f acti o n 2rose some e ighteen y e ars a g o and that it wa s on e foun ded on t o rt, an d also that the defendant d i d not suffer from any d isability I fur th er f ind that it is clearly caught by the provisions of s ection 4 ( 1 ) (a) of t he Limitation Act. It is, therefor e , statut e barred . Made in Chamb e rs this 10th c]ay of ::ci y , 1995, at Dl antyre . A . ['( . T Pi EO JUDGE