Mhango v Opportunity Bank Malawi Ltd (Civil Cause 446 of 2015) [2017] MWHC 86 (12 June 2017)

Wisdom Mhango v. Opportunity Bank Malawi J. Kenyatta Nyirenda, JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL CAUSE NO. 446 OF 2015 BETWEEN WISDOM MHANGO ....................................................................... PLAINTIFF -AND- OPPORTUNITY BANK MALA WI LTD ................ .................. DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA Mr. Katsichi, Mr. Ulaya, Mr. Orbert of Counsel, Chitatu, for the Defendant for the Plaintiff of Counsel, Court Clerk NYIRENDA Introduction JUDGEMENT herein, th� Plaintiff is claiming damages for false imprisonment, and malicious prosecution. The Defendant denies the claim. In the action defamation Pleadings employed The Plaintiff'was December of Mulanje charge Police of forgery, Station uttering 2012, the Defendant by the Defendant. wrongfully It is alleged that �n or around 20th police directed and procured constables to arrest a false document the Plaintiff and take him into custody and theft, then made by the Defendant. on a that, acting upon It is further alleged Plaintiff detained December and took him into custody for 7 days and at Mulanje 2012 when he was released Police Station at Mulanje Prison where he was remanded on bail and/or where he was until 28th from custody discharged the said direction, the said police arrested the also state that he was taken before Mulanje Magistrates of forgery, uttering a false document further state that the Defendant and theft but he was acquitted. to be wrongfully caused the Plaintiff Court on the The The Plaintiff charges Plaintiffs arrested and imprisoned and deprived of his personal liberty for 8 days. --""�----.. .... j HIGH COURT � ' f LIBRARY i & ......,,.,.. : Wisdom Mhango v. Opportunity Bank Malawi Kenyatta J. Nyirenda, furthermore The Plaintiffs Defendant through names thereby tarnishing been particularised as follows: his servants state that at the time of the Plaintiffs arrest, the or agents called the Plaintiff his image and character. The alleged all sorts of derogatory defamation has "a. Called the Plaintiff "thief'') b. Manhandled the Plaintiff of many during broad day light and in the presence people. c. Paraded police." the plaintiff satellite with handcuff from Chitakale centre to Mulanje The Statement shock and mental anguish treatment been expressed and he suffered in the following loss and damage. terms: of Claim concludes by stating that the Plaintiff sustained severe and he was subjected to inhuman and degrading Particulars of degrading treatment have "a. slept without a blanket b. slept near a bucket used as a toilet. c. slept in a cell full of mosquitoes. d slept on wet floor. e. slept in a cell full of bad smell. " ea�h and every allegation denies The Defendant of Claim, save for admitting material independently avers. Defendant time. The Defendant that the decision made by the Police that the Plaintiff also avers that the arrest in the Statement of fact contained was indeed its employee at the was further by the was never influenced of the Plaintiff The Defendant after their investigations. to prosecute but was independently the Plaintiff made by the Police. Issues for Determination The main issue for determination Defendant malicious prosecution? to the Plaintiff is liable in the present for false imprisonment, not the case is whether or and defamation Burden and Standard of Proof It is trite lawsuit: (SCA) wherein that a plaintiff see Commercial of his or her has the burden of proving MLR 43 Bank of Malawi v. Mhango [2002-2003] the elements the Supreme Court of Appeal observed as follows: Wisdom Mhango v. Opportunity Bank Malawi Kenyatta Nyirenda, J. which means the burden of proof lies on him who alleges, the law is that the burden of proof lies on a party who substantially asserts in the case of Robins v National The principle of the issue. was stated In general, in which the claim arises. probatio "Ordinarily, the affirmative Trust Co [1927] AC 515 that the burden of proof in any particular circumstances negat incumbit not him who denies. Corporation considerations The judge said that the rule is adopted invokes things, action Services the aid of the law should be the first to prove his case because a negative than an affirmative. the burden of proof may be varied of good sense and should not be departed principally [1943} AC 154, 174 stated that it is an ancient Lord Megham, again, in Constantine Ltdv Hill [1955} 2 QB 417." by the agreement is more difficult to establish .from without because case depends on the the rule is Ei qui a(firmat non qui and Smelting Line v Imperial on rule founded it is but just that he who of in a civil in the nature However, -see Bond Air of the parties reasons. strong It is also commonplace probabilities. said: In Miller v. Minister of Pensions that the standard of proof is that on a balance 2 All ER 372, Denning [1947] of J "That degree is well settled. high as is required 'we think it equal it is not. " more probable in a criminal case. If the evidence It must carry a reasonable degree of probability, not so can say; is such that the tribunal than not' the burden is discharged, but if the probabilities are this means that a plaintiff must prove a fact by showing so than not: See also the cases of B. Sacranie In short, more likely Cause No. 717 of 1991, Mr. Lipenga v. Prime Insura'nce George) Alfred Pensulo and Hastings Company Ltd, HC/PR Civil Cause No. 592 of 2015. (Administrator Company Ltd, Civil Cause No. 1386 of 2005 and v. ESCOM, Civil of the Estate of Janet Mawerenga v. United General Insurance that something is It, therefore, as the party who has asserted the respective prosecution. elements follows that in the present case the burden of proof is pn the Plaintiff the affirmative to prove on a balance defamation of false imprisonment, of probabilities and malicious Evidence The Plaintiff material part reads: was his own witness. He adopted his witness statement and the "2. I was an employee (Mulanje). of the defendant herein, working as a manager at Lujeri 3. On the 20 1h December to arrest station 2012, the defendants directed police officers from Mulanje police uttering a false document me and take me into custody and theft. on a charge of forgery, Wisdom Mhango v. Opportunity Bank Malawi ·Kenyatta Nyirenda, J. 4. Acting upon the said directions, station the police where I was detained arrested me and took me into custody for 7 days and then sent to 2012 when I for 1 day until 28th December where I was remanded police at Mulanje Mulanje was then released prison on bail. 5. During my arrest, I was manhandled in the in broad day light by the police of many people. presence Satellite Centre me derogatory character. I was handcuffed to Mulanje of the Defendant names such as "thief' Police. and thereby and made to walk from Chitakale Some of my colleagues called tarnishing my image and the court proceedings, to go through Magistrates uttering forgery, 6. I continued Mulanje charges approached There is now produced and marked "WMJ ". and I then appeared court around 18th June 2015 where I was acquitted the Defendant by itself but never did exhibited the State that it wanted to conduct shown copy of the court ruling prosecution a false document and theft because of all the had hereto, before 7. Truthfully detained allegations speaking and prosecuted the defendants put across. there was no reasonable ground as to why I was arrested, considering that there was evidence of the said 8. It is clear that the prosecution keep me under the hook of criminal forward its claims. evidence to support was maliciously prosecution enjoyed done as the Defendant to to bring but never took any steps 9. As a result of this I had to stay in custody anguish and mental this period, I spent nights ThuJ during humiliation treatment. floor in a cell which was full of mosquitoes. used by inmates been subjected without as toilet. having to inhuman and degrading I slept on wet blanket, I was made to sleep near a bucket for 8 days was suffered considerable 10. I believe the arrest as it immediately to the offices that fact that I had been acquitted, done by the was maliciously me and · even after I had to pay my they refuse and consequent upon arrest prosecution dismissed defendant presented arrears and even my salary. 11. I therefore, pray that this court grants me the damages as claimed in my statement of claim. 12. As a result of the groundless prosecution, I suffered loss and damage by facing fear and anxiety defendant my services. tarnished anywhere. of the grounds of prosecution immediately stopped paying me and loss of liberty me. The against my salary and eventually The inconvenience and conviction terminated for 1 week, my image got I cannot get any job as 1 was regarded I am still And currently as a criminal jobless since then till now and as a result Wisdom Mhango v. Opportunity Bank Malawi Kenyatta J. Nyirenda, 13. I therefore pray that this honourable court finds and defamation. malicious prosecution me special damages I also pray that this court and costs of this the Defendant as pleaded liable for false imprisonment, makes an order granting action." The ·Plaintiff tendered a c acquitting sitting at Mulanje the Plaintiff, which was marked as Exhibit Pl. opy of the ruling of th e First Grade Ma gistrate Court In cross-examination, the Plaintiff loans, (b) some loans had been authorised and ( c) he was the person who was responsible overdrafts. not in line with laid down procedures for the authorisation of the agreed that (a) he had the role of authorising that he was arrested by three police arrested his arrest, He conceded the Plaintiff the Defendant. on a charge of forgery, Regarding stated officers in the presence of bank officers. police officers had been invited by he was being uttering When he was asked what he would do if he was a victim said that he would report to the police. unusual to the police where there is suspicion He explained been committed. directed the police officer to arrest him because within the Defendant's that he believes Bank premises. to report that he did not know that the The police officers told him that a false document and theft. of a criminal offence, he He further agreed that it would not be that a criminal offence had who that it is the Defendant he was arrested whilst he' was Turning to his prosecution, When questioned court. that the Industrial Relations Court found that stated for authorisin officers of his claim against he stated about the outcome who took him to he the Defendant, he had been fairly dismissed g wrong transactions. that it was police the Plaintiff In re-examination, to go to the Bank. He believes information leading him on all three counts to his arrest. off orgery, that it is the Branch Manager stated it that it was the Bank which relayed him who called to the police Finally, uttering he stated a false document and theft. that the lower court acquitted called The Defendant witness statement and reads as follows: one witness this formed his evidence his by the name of Arthur Ngosi. He adopted statement in chief. The witness "J. I am the Clients Portfolio Director Bank. in the defendant 2. I previously worked as the Defendant Bank's Chief Human Resources Officer. Wisdom Mhango v. Opportunity Bank Malawi Kenyatta Nyirenda, J. 3. I am aware that the plaintiff 2012. December, was arrested by the Police on or about 201h 4. The plaintiff offence whilst was arrested for the Bank. working for being suspected to have committed a criminal 5. The arrest was done by the police after the Bank lodged a complaint. The police investigations commenced investig Further led to the arrest the audit report ations of the plaintiff. which the Bank submitted were conducted and requested after the submission of the report an shown to me copy of "AN 1 " which to the Police marked There is now produced the bank to submit an audit report. 6. The Police premises requested bank officials to invite the plaintiff to come to the bank because the police did not know his whereabouts. 7. By simply inviting the plaintiff arrest request, as a state institution any way direct police or cause the of the plaintiff. and the employee was The bank only obliged called. the bank did not in to the to come to the bank premises, 8. The police went further to prosecute the plaintiff in a court of law. 9. The prosecution was conducted by the police and not the bank. " Mr. Ngosi tendered and this was marked as Exhibit D. a copy of the audit report referred to in his witness statement was on 20th December, In cross-examination, Plaintiff based on records complaint, Mr.' Ngosi the stated that (a) he does not know where the was arrested 2012, (b) he is aware that the Plaintiff at the bank, ( c) he does not know who at the bank lodged a ( d) he does not know the date when police commenced investigations. Regarding requested report. the audit report, for the audit report he could remember neither the date when police nor the date when the police submitted the audit Submissions Counsel and detained for 7 days. Katsichi submitted that the evidence shows that the Plaintiff was arrested by the police at the instance of the Defendant. He was kept in custody Wisdom Mhango v. Opportunity Bank Malawi Kenyatta Nyirenda, J. further submitted that the Plaintiff was prosecuted and he was acquitted after full trial. He contended cause and the Defendant the downfall of the Plaintiff. at the instance that the had throughout To buttress lacked proper and probable Katsichi Counsel of the Defendant prosecution acted maliciously his submissions, Lfmited of Blantyre and Others [1990] Adventist with the aim of seeing Counsel Katsichi cited the cases of Matanda v. Sales Service Trustees 13 MLR 219 and Kaisi v. The Registered Hospital [1996] MLR 97. Counsel Defendant plaintiff Ethanol (2) MLR 594. Ulaya submitted that the crucial issue merely laid facts on which it became the duty of the police on which the police the plaintiff 16(2) MLR 572 and Mbewe v. Admarc [1993] the is whether to arrest the Manda v. or laid charges Company Ltd [1993] in false imprisonment against acted: Ulaya contended Counsel defendant direct quote in full the relevant the police that there is no evidence the Plaintiff. to arrest part of the Defendant's Final Submissions: It might not be out of order to in this case to prove that the statement the plaintiff stated directed them to do so. However, that he was arrested during cross­ that it was the police who arrested him and that he did by the bank to the police and that the police had admitted "In paragraphs 3 and 4 of the witness by the police after the defendants the plaintiff examination, not know that there was a complaint been invited was made to the police, did not give any evidenc!e not even say in his evidence directed stated arrested that he believed the premises him within the police the police to arrest of the bank. to the bank premises. Clearly, the plaintiff were being invited was not present to the Bank premises. when a complaint on how the defendant directed the police that when he was being arrested him. On the contrary, the plaintiff that the bank directed the police to arrest to arrest The plaintiff him. He did the Bank officials during cross-examination the police him because actually on a balance that it is the duty of the plaintiff of probabilities. My Lord, the law is settled allegations any evidence submit and that the police defendant directed have brought that show that the bank officials that the fact that the was invited plaintiff him within officers arrested the police the bank premises the plaintiff to arrest how the bank officials evidence showing In the present directed in a civil case to prove his case, the plaintiff did not bring him. We to arrest premises to the bank the police by the bank officials does not prove the fact that the The plaintiff directed the should at least to arrest police him. the uncontroverted evidence to the police Further, complaint bank to invite whereabouts. plaintiff the plaintiff was arrested the plaintiff It is our submission by the police, witness of the defence their investigations, show that the bank laid a the the police did not know his where the to its premises the plaintiff the police to arrest direct thereby the bank did not by the that after he was invited requested the police because that by inviting and after conducting to its premises The plaintiff would at least have testified Wisdom Mhango v. Opportunity Bank Malawi Kenyatta Nyirenda, J. he heard the bank bank to its premises, No such evidence the police document officials direct the court. told him that they were arresting and theft. was brought before Instead the plaintiff him on a charge of forgery, told the court that uttering a false or instruct the police to arrest him. • direct In· the premises, that the court should the plaintiff we submit to arrest from the defendant. grounds the police after a complaint defendant had reasonable had shown that the plaintiff loans. did not follow In fact, the and that the plaintiff Further, the court should was arrested by the police find as a fact that the after the audit report for complaining to the police some laid down procedures in approving did not find as a fact that the defendant admitted plaintiff in approving procedures " transactions. during cross-examination that he did not follow the laid down the loans and that his arrest was connected to those Turning to the Plaintiff's claim lacks merit. claim for defamation, were put thus: His arguments Counsel that the Ula ya submitted "The plaintiff's that the defendant arrested by the police made in exercise the defendant arrest. defamation claim for defamation from his arrest. We have already submitted did not direct arises the police after receiving of the police duties should not be held responsible to arrest the plaintiff. from the defendant. a complaint after considering for the alleged was The said arrest was As such complaint. from the arising for any should not be held liable the defendant's defamation The plaintiff We therefore submit that the defendant emanatingfrom the arrest. " Counsel prosecution, Ulaya the Court to note that the him. Counsel is not liable. to the Plaintiff's the Court is that after arresting claim for malicious He invited With respect that the defendant submitted evidence before Court to prosecute effect that the prosecution Defendant. intended that the Defendant this regard, Counsel Ulaya Plaintiff such that if it was malicious the Defendant. was under the direction so the argument to prosecute submitted To the contrary, Ulaya contended at all, liability the Plaintiff, the police took him to the that there is no evidence to from the or instruction went, it is the Plaintiff's testimony but did not do so. In the case privately that it was the police that prosecuted the for the same should not fall on Determination Claim for false imprisonment is liable A defendant plaintiff aptly put by Skinner, upon which it becomes for false imprisonment the duty of the police C. J. (as he then was) in the oft-cited to arrest the plaintiff. case of Chintendere As was v. if he or she lays a charge against a Bank Malawi Wisdom Mhango v. Opportunity Kenyatta J. Nyirenda, Boroughs where: Ltd [1981-831 lOMLR 215, false imprisonment will have been proved its servants by the defendant or agents, ordered as well as the police merely the police and is a ground for an the to arrest the defendant, who, on their own responsibility by the defendant. or trespass but if the defendant took the plaintiff It comes down to this: if the defendant's into custody, the facts to the stated this is no of trespass " ... the defendant, through acting it is imprisonment plaintiff, against action Policemen, imprisonment servants liable " own judgement. but it is not liable made a charge upon which it became the duty of the police if they gave information and the police acted according to their to act, then it is case, it is plainly clear from the evidence the police to arrest and the police, In the present direct police Defendant admitted without before the police, imprisonment. by the Plaintiff following the Plaintiff. The Defendant in execution of its duties, arrested to the police cross-examination, for complaining the Plaintiff during that the Defendant merely complained did not to the The the Plaintiff. as because, authorized loans merely laid facts for false is not liable laid down procedures. it is my finding that the Defendant Since the Defendant had reasonable grounds Claim for defamation As to what constitutes [1993116(2) MLR 681 at 702 g to i had this to say: defamation, Chatsika J. in Nyirenda v. AR Osman and Co. in different has been defined, "Defamation terms, tends to lower a person in the estimation generally, any imputation members contempt, of society generally, ridicule." or which makes them shun or avoid that person. which may tend to lower the plaintiff as the publication which of a statement of right thinking members of the society It has also been defined as to cut him off from society or to expose him to hatred, in the estimation of right-thinking The evidence of the Plaintiffs relied witness statement: upon on the claim of defamation is to be found in paragraph "During many people. Defendant as "thief' my arrest, I was manhandled and made in broad day light by the police Chitakale to walk from I was handcuffed of in the presence of the Centre Satellite names such me derogatory to Mulanje and thereby Police. tarnishing called Some of my colleagues my image and character. " I am afraid that I cannot statement thinking mind, it would be stretching is defamatory member of society: concur in this reasoning. has to be judged by the standard act or right of an ordinary, or not an alleged Whether see Banda v. Pitman [19901 13 MLR 34. To my beyond its limit to hold that the law of defamation Wisdom Mhango v. Opportunity Bank Malawi Kenyatta J. Nyirenda, and/or incarceration case, it has already him into custody. I Claim for malicious p rosecution without court attendances, been held that it is the Police that arrested n the premises, the Plaintiff h In any defamation. and took the Plaintiff as failed to prove defamation. more, constitute . prosecution cause initiates is a tort whereby against Malicious and probable in favour of that other and which result freedom or property: Manda v. Ethanol on Torts", [1993] Company Limited See "Street another one maliciously and without proceedings judicial in damage to his reputation, 8th edn. Butterworths, reasonable which terminate 1988 at p28 and person, 16(2) MLR 572. namely, (a) that the defendant cannot succeed prosecution A claim for malicious essential criminal probable prosecution Ltd [1992] v. City Council elements, against him, proceedings cause, (c) that the defendant ended in the plaintiffs 15 MLR 331, Mbewe v. Admarc [1993] 1 MLR 161. (1995) (b) that the prosecution lacked reasonable and acted maliciously, and (d) that the favour: See Mvula v. Norse International 16(2) MLR 594 and Nthani unless the plaintiff prosecuted proves four the or initiated v. Mc Iver (1962) In Glinski may succeed the plaintiff prove either that the defendant prudence of the offence or that a map of ordinary in the light of the facts in which he honestly probably A. C. 726, the House of Lords held that, in order that cause, he must was probably would not conclude, that the plaintiff and caution believes, probable on the issue of reasonable and that the plaintiff did not believe guilty. guilty was ended in favour of the Plaintiff has also to show that the Defendant prove that the Defendant for the purpose The mere fact that the prosecution The Plaintiff Plaintiff must instituting Midland Countries was unable to find improper Defendant claim for malicious prosecution is unsuccessful. him to justice: RY Co. (1854) 10 Exch. 352. On the evidence is not enough. that is, the acted maliciously, had another of bringing on the part of the the in a court of law. In the premises, v. See Stevens before me, I motive or wrong purposes motive other than of simply for having the Plaintiff a prosecution prosecuted Costs Costs are awarded 30 of the Courts in the discretion of the Court but normally follow the event: s. Act as read with 0. 62, r. 3(3) of the RSC. The Defendant has Wisdom Mhango v. Opportunity Bank Malawi Kenyatta Nyirenda, J . successfully incidental the case. I, therefore, gs. It is so ordered. to these proceedin defended award the Defendant costs for and Pronounced in Court this Ith June 2017 at Blantyre in the Republic of Malawi . Kenyatta Nyirenda JUDGE I -