Tindo & Anor. v Transglobe Produce Export (1479 of 1999) [2004] MWHC 46 (17 August 2004);
CIVIL CAUSE NO. 1479 OF 1999
BETWEEN:
PATRICK TINDO..............................................
1ST PLAINTIFF
OLIVER MALINDIMA.......................................2ND
PLAINTIFF
-
TRANSGLOBE PRODUCE EXPORT..........................DEFENDANT
CORAM:
CHIMASULA PHIRI J.
Dr Mtambo of Counsel for the plaintiffs.
Raymond and Hughes – absent
- Counsel for the defendants
.............- 0fficial Interpreter.
Chimasula Phiri J.
The plaintiffs claim is for wages wrongfully withheld by the defendant and interest
on such sums to the date of judgment at the rate of 3% above bank lending rate. The plaintiffs also claim notice pay and costs for
this action.
At the hearing of the case only the plaintiffs and their counsel appeared. The defendant
and its counsel neither appeared nor sent any explanation for their absence.
In terms of Order 35 rule 1 (2) of the Rules of the Supreme of Court if, when the
trial of an action is called on, one party does not appear, the judge may proceed with the trial of the action or any counterclaim
in the absence of that party. If however, the plaintiff appears but the defendant does not appear at the trial the plaintiff may
prove his claim, so far as the burden of proof lies on him.
The defendant did not even prepare a court bundle while the plaintiffs submitted
all the relevant process to qualify the case for hearing. It is therefore not surprising that I ordered the hearing to proceed in
the absence of the other party.
PLEADINGS
The Amended State of Claim pleads as follows:-
1.
THE PLAINTIFFS aver that on or about 27th June 1998 they were accused of stealing 80 bags of soya beans worthy MK20,000.00 belonging to the defendant
and were thereafter arrested of the same.
3.
THE PLAINTIFFS aver that they were later charged of forgery contrary to section 353 of the Penal Code and theft by servant contrary to section 286
as read with section 271 of the Penal Code of which they were convicted by the Limbe First Grade Magistrate court on the 9th October
1998.
4.
THE PLAINTIFFS also aver that on appeal to the High Court, they were exonerated from the charges outlined under paragraph 3.
5.
THE PLAINTIFFS further aver that being innocent their normal expectation was that they would be reinstated and paid their salary and benefit from
the time they were arrested to the time of reinstatement, but to their surprise, on or about 8th March 1999 they were served with
letters of dismissal.
6.
That they must be paid their salary and benefit from the time they were arrested to the time
of dismissal amounting to MK 19,500.00.
(i)
Interest on the sums due from 27th June 1998 to date of
judgment at 3% above bank lending rate.
c.
1.
The defendant makes no admission as to paragraph 4 of the Statement of Claim.
The defendant makes no admission as to paragraph 5 of the Statement of Claim. The defendant
avers that the plaintiffs' employment with the defendant was lawfully terminated and the plaintiffs were paid all their terminal
dues.
The defendant therefore denies paragraph 6 of the Statement of Claim.
5.
Save as herein before specifically admitted every allegation of fact is denied as if the same
were herein set forth and traversed seriatim.
FACTS AND EVIDENCE
The evidence in this matter came from Patrick Tindo of Nyalugwe Village, T.A. Kadewere,
Chiradzulu who adopted his witness statement. He tendered the letter of dismissal which reads as follows:-
Our Ref:
LBC/YC/104/TGC
Mr Patrick Tindo
C/o Transglobe Produce Exports
Limited
P. O. 5035
Limbe.
Dear Sir,
RE: DISMISSAL ON THEFT BY FORGERY
Lilongwe to Blantyre warehouse you are instantly dismissed from work.
Yours faithfully,
L. B. Chadzandiyani
PERSONNEL MANAGER
He is claiming loss of salary at the rate of K650.00 per month for 11 months.
The other witness was Oliver Malindima of Mwanamvula Village, Traditional Authority
Mkanda, Mulanje who also adopted his statement witness and tendered his dismissal letter which is worded like that of Patrick Tindo.
He is claiming salary for 11 months allegedly representing the period from time of arrest up to 8th March 1999. Both plaintiffs indicate
that they were not given pay in lieu of notice and hereby claim the same. The uncontroverted evidence from the two plaintiffs clearly
establish the following facts:
On or about 27th June 1998, the plaintiffs were arrested by Limbe Police on suspicion of stealing 80 bags of soya beans belonging
to the defendant. The Limbe Magistrate Court convicted the plaintiffs on charges of forgery, contrary to Section 353 of the Penal
Code and theft by servant contrary to Section 286 of the Penal Code as read with Section 271 of the same code.
On 28th January 1998, the High Court quashed the plaintiffs' conviction and exonerated them from all charges.
On 8th March 1999, the defendant dismissed the plaintiffs from their employment on the basis of their earlier conviction. The dismissals
were effected despite the earlier acquittal by the High Court.
plaintiff's salary was K1,300.00 per month and the 2nd plaintiff's salary was K650.00 per month.
an employee has been exonerated by a court of law, he must be reinstated and paid his salary and benefits from the time of arrest
to the time of reinstatement.
The law is clear that dismissal cannot have retrospective effect. See the case of Phambala vs Admarc civil cause no. 1601 of 1996. Therefore, a dismissed employee is entitled to wages to the time of dismissal.
Interest on sums owing may be awarded at the discretion of the court. See the case of Zgambo vs Kasungu Flue Cured Authority (12 MLR 311).
The common law position stated above has completely changed in Malawi by the Employment
Act 2002, giving more protection and terminal benefits to an employee than did the common law. However, that is not applicable in
this case because the law was enacted later than the acts complained of. I would therefore order that firstly, the defendant pays
the plaintiffs their salaries for the period from 27th June 1998 to 8the March 1999 i.e 9 months and not 11 months at the rate of
K650.00 and K1,300.00 per month. The payment should be calculated up to 8th March 1999. Secondly, both plaintiffs should be paid
one month's salary in lieu of notice. Thirdly, I refuse to award interest on the sums due and payable to the plaintiffs for their
withheld salaries on the ground that although the plaintiffs were acquitted by the High Court for forgery, there is evidence in the
court bundle which is incompatible with the total innocence of the plaintiffs. Awarding interest in such circumstances would lack
equity and fairness. I decline to do so.
Lastly, the defendant is condemned to pay costs for these proceedings.
PRONOUNCED open court at the High Court, Blantyre on the 18th day of August 2004.