IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CAUSE NO. 617 OF 2006

BETWEEN

D.
TWEA ..........…………………………………………………………
PLAINTIFF

-AND-

DWANGWA
SUGAR CORPORATION...……………………………DEFENDANT

CORAM
: T.R.
Ligowe : Assistant Registrar

Kumange : Counsel for the Plaintiff

Nkuna : Court Clerk/Interpreter

RULING

The plaintiff commenced action
by writ of summons on 7^th
April 2006. He avers in his statement of claim that in 1999 he a farm
manager at the defendant’s Matiki 2 farm. On 26^th
November 2006, two security officers from the defendant company
searched his house for 20 bags of fertilizer allegedly stolen by
the
plaintiff but were not found. The search created the impression that
the plaintiff was a thief and the charge of theft was
widely
published around the company’s premises thereby tarnishing his good
name and impinging his character. He was dismissed
and on 31^st
March 2000 he applied for repatriation facilities by way of transport
but the defendant failed to provide adequate means of transport
to
the extent that some of his personal effects were damaged through
negligence. Management provided him with a small truck and
failed to
keep safe some of his items left behind. The items lost and damaged
are listed as follows;

Items lost from the truck

100 electric bulbs
K 3 500

2 push bicycles
K 24 000

Electric irons and one pressure
lamp K 25 000

2 wall clocks
K
20 000

Total
K
72 500

Items left at Dwangwa and
never found

1 motorbike
K 100 000

12 goats
K 36 000

1 display cabinet
K 30 000

10 bags of maize @ K1 500 each
K 30 000(sic)

18 bags of rice @ K2 300 each
K 41 400

1 Petrol generator
K 98 000

Measuring scales of 100 kg each
K
15 000

Total
K
350 000

The plaintiff claims a)
exemplary damages for defamation; b) special damages for the goods
damaged of K427 500; c) damages for discomfort,
anxiety and
inconvenience consequential to the search; and costs of the action.

The defendant has applied to
this court for an order striking out the statement of claim and
dismissing the whole action for being
frivolous vexatious and an
abuse of the process of the court as it is statute barred. The
defendant contends through counsel that
the claims herein are in tort
and arose more than six years before action was commenced and
therefore barred by S 4 of the Limitation
Act (Cap 6:02) of the Laws
of Malawi.

In his affidavit in opposition,
counsel for the plaintiff contends that the plaintiff was delayed by
the defendant in commencing
the action. The defendant’s lawyers
wrote the plaintiff’s lawyers on 21^st
March 2006 (exhibit DSLK1 to the affidavit in opposition) to pend
action until the defendant’s lawyers revert to the plaintiff’s

lawyers. Thus the plaintiff argues there was acknowledgment and the
right of action accrued afresh from that date.

Acknowledgment is provided in S
22(4) of the Limitation Act. It states:

“Where
any right of action has accrued to recover any debt or liquidated
pecuniary claim, or any claim to the personal estate of
a deceased
person or to any share or interest therein, and the person liable or
accountable therefore acknowledges the claim or
makes any payment in
respect thereof, the right shall be deemed to have accrued on and not
before the date of the acknowledgment
or the last payment.”

DSLK1 is in these terms:

“We
are currently consulting our clients on this case. We therefore
request that you pend commencement of court proceedings until
you
hear from us. In case you can not, then be advised that we are under
instructions to receive service of any process you may
cause to be
issued against our client.”

Clearly the terms of the letter
do not acknowledge the plaintiff’s claim in this matter as
envisaged by that provision. And the
plaintiff’s claim does not
fall in any of the categories of the claims provided for under that
provision. The claim herein is
for damages. The plaintiff claims a)
exemplary damages for defamation; b) special damages for the goods
damaged of K427 500; c)
damages for discomfort, anxiety and
inconvenience consequential to the search. In Knight
v. Abbott (1883)
10 Q.B.D. 11 it was held that the words “debt or liquidated demand”
do not extend to unliqiudated damages, whether in
tort or in
contract, even though the amount of such damages be named at a
definite figure.

Counsel has further argued that
this claim was earlier commenced at the Industrial Relations Court as
Matter No. 75 of 2001 but
in his judgment of 26^th
March 2004 the Chairman advised the plaintiff to commence his action
as regards the defamation and negligence in the High Court.

The action was earlier
commenced in a court without competent jurisdiction. “Action” in
the Limitation Act includes any proceeding
in a court, and “court”
per the General Interpretations Act is court of competent
jurisdiction. Therefore in the sense of the
Limitation Act no action
was commenced with respect to the claim for defamation and
negligence. Action was only brought on 7^th
April 2006 at the High Court. Consequently the fact that this action
was earlier brought before the Industrial Relations Court
does not
help, even if the statement of claim was to be amended to reflect
that fact.

The application is therefore
granted and the present action dismissed with costs.

Made in Chambers this 25^th
day of September 2006.

T.R. Ligowe

ASSISTANT REGISTRAR