Msusa v Orascon Continental (Civil Cause No. 879 of 2012) [2017] MWHC 15 (06 January 2017);

JOHN MSUSA ................................................................ PLAINTIFF
ORASCON CONTINENTAL ........................................... DEFENDANT
Makwinja, Counsel, for the Plaintiff
Chatepa, Counsel for the Defendant
Chitsulo, Official Interpreter
The, plaintiffs claim is for damages for false imprisonment, defamation and costs of this action.
Plaintiff's case
He states that at the material time he was an employee of the defendant, a firm that hires out security services, including guards. The plaintiff was one such guard and was assigned to guard at premises belonging to Manica Malawi Limited. I was his evidence in chief that an incident of theft occurred at the Manica premises, and an employee and agent of the defendant reported to the police that he had been involved in the theft and that it was that employee, Mr Ndelemani, who took him to the police station and handed him over on account of that allegation. He stated that he was kept in custody from the 9th to the 13th of June when he was released on bail but has to date not been prosecuted for the offence. He stated that while in custody he was subjected to degrading and inhuman treatment, that his workmates and neighbours became aware of his imprisonment in connection with the allegation and that the same has affected his standing before them, and was greatly injured in his character and reputation and has suffered considerable trouble, inconvenience and anxiety hence the loss and damage for which he seeks compensation.
In response to questions during cross examination the plaintiff said that on the material day at around 7 pm his boss came to his work station and advised him not to sleep whilst on duty as there had been a theft the previous evening and he suspected that the guard who had then been on duty had been sleeping. After some twenty minutes, he said, a vehicle belonging to the defendant arrived and the person who was driving it, a senior officer of the defendant, said he was looking for John Msusa. The plaintiff told him that he was John Msusa. The officer, so said the plaintiff, went back to the vehicle and brought back two guards. He ordered the plaintiff to jump into the vehicle and told him that the two guards would be replacing him. Despite his resistance that he could not leave his duty station without the instructions of his boss the officer, Mr Ndelemani, told him that he wanted the plaintiff to go and record a statement at Blantyre Police Station. He was then taken to Blantyre Police Station. He said when they got to the police station Mr Ndelemani said he had come to hand the plaintiff over to the police, and left him there. The plaintiff said the police in the Criminal Investigation Department told him that Mr Ndelemani had told them that he had been involved in a theft the previous night. The plaintiff believes that it was indeed true that Orascon Continental officials reported to the police that he had stolen some goods because it is them who took him to the police. After he was released on bail he was required to and did report to the police for three months before being discharged from the bail conditions. No evidence was found that the plaintiff had been involved in the theft.
Defendant's evidence
Mr Tito Nkhoma testified for the defendant. His evidence was that he was the Operations Manager of the defendant and that on 12th June 2012 thieves stole various items from the Manica Container Terminal behind BAT grounds and according to procedure Mr Ngalawesa, the security manager reported the incident to Blantyre Police Station, the police carried out investigations and went to arrest the plaintiff. He stated that the police requested for transport from the defendant which the defendant did and took the plaintiff to the police station. Mr Nkhoma disputed that the defendant's servants or agents either procured the police to arrest the plaintiff or even mentioned his name but that the police arrested the plaintiff after carrying out their own investigations and having established enough reason to believe that the plaintiff was a suspect. Mr Nkhoma said that neither he nor the defendant was privy to the police investigations. He also said that the request for transport by the police was made to him but he was not there when the same was provided to the police. He also said that he was not present when the plaintiff was being arrested at Manica and that he did not know what exactly transpired there.
Issues for determination
The issues for determination in this action are:
1.   Whether the conduct of the defendant amounted to false imprisonment; and
2.   Whether the conduct of the defendant amounted to defamation.
The relevant law on false imprisonment
What constitutes false imprisonment has been stated times without number. The definition in Kanyemba v Malawi Hotels Ltd [1991] 14 MLR 157, at 162, is one such case:
"False imprisonment consists of inflicting bodily restraint which is unauthorised and without lawful authority. In order to succeed, the plaintiff need not prove actual imprisonment in the sense of imprisonment in a gaol, for "imprisonment is no other thing but the restraint of a man's liberty, whether it be in the open field, or in the stocks in the cage in the streets as well as in the common goal" See Meering v Grahame-White Aviation Co (1919) 122 LT 44, CA. For an action to lie, the imprisonment must be by a defendant or by his orders. Where the defendant does no more than state the facts to the police officer, who, exercising his discretion, decides to make an arrest, there is no remedy by way of action for false imprisonment. Where there is reasonable and probable cause for suspicion that a felony has been committed a police officer can arrest a suspect: See Walters v WH Smith & Son Ltd [1914] 1 KB 595. The burden of proving the existence of reasonable and probable cause is upon the defendant: Hicks v Faulkner (1881) 8 QED 167 at 170. "
Findings of fact regarding the claim for false imprisonment
In so far as what transpired before and after the arrest of the plaintiff is concerned it is only the evidence of the plaintiff himself which is helpful to the court. Mt Tito Nkhoma, the only witness for the defendant evidently did not witness any of the events attendant to this issue. Since he was not there when the plaintiff was picked up for the police station and that it was not him who reported the matter to the police and further that he was not privy to the investigations which the police carried out, Mr Nkhoma's evidence is largely, if not wholly, hearsay as regards whether or not the plaintiff was arrested on the basis of the independent investigations by the police.
The court is then left with the uncontroverted evidence of the plaintiff which it must examine to establish whether it does establish that it is the conduct of the defendant, through its employees and agents, which occasioned the plaintiff’s loss of personal liberty. This court is satisfied that the following facts from the plaintiff s evidence have not been discredited. Firstly, that Mr Ndelemani, an employee of the defendant, ordered the plaintiff to get into the defendant's vehicle and drove him to Blantyre police station, and that no police officer was present when this was happening. Secondly, on arrival at the police station, Mr Ndelemani reported to the police that the plaintiff had been involved in a theft of goods at the Manica premises, hence laying a charge against the plaintiff. The police, in the circumstances, were obliged to execute the dictates of the law as it applies to persons who steal, to set the law into motion. Thirdly, Mr Ndelemani actually said, at the police station, that he had gone to the police station to hand over the plaintiff, which was confirmed by his leaving the plaintiff there. This court is therefore satisfied that Mr Ndelemani, acting in his capacity as an employee the defendant herein, both arrested and laid the charge of theft against the plaintiff.
The conduct of Mr Ndelemani amounted to false imprisonment. As he was acting in the course of his employment, the defendant is held liable.
The relevant law on defamation
Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally or which makes them shun or avoid him or to cut him off from society or to expose him to hatred, contempt or ridicule: Nyirenda v AR Osman & Co [1993] 16(2) MLR 681 at 702. The plaintiff in the present case does not allege that the defendant's employees or agents published any defamatory statements of the plaintiffs. He faults their conduct. The issue then is whether the conduct of the defendant through its employees amounted to defamation.
In the eighth edition of Gatley on Libel and Slander, at page 42, the learned authors state:
"Defamatory imputations are usually conveyed in words, written or spoken. But there are other many activities and objects which may convey an imputation defamatory of some person, either of themselves or in their context. "
Later, at page 85, the following passage appears:
"Sometimes a mere act may convey a defamatory imputation, if it would be so understood by reason of a conventional meaning, ... or by reason of the inference to be drawn from it, whether by ordinary man, or by some person with special knowledge to whom it was published.
It was however held, in the case of Ndiwo v Attorney General [1997] MLR 223, that the mere fact that the plaintiff was arrested and subjected to police investigation, did not itself convey the actual guilt of the plaintiff and could not be construed as defamatory of the plaintiff by way of meaning that the plaintiff had in fact committed the offence.
Findings of fact as regards the claim for defamation
It will be recalled that the plaintiff grounds his claim herein on the fact that following his arrest his workmates and neighbours became aware of his imprisonment on the allegation and that the same has affected his standing before them, and that as a result of the imprisonment he was greatly injured in his character and reputation. The plaintiff did not, however, adduce any evidence, proving any words, conduct or activity, directed at or done in the presence of the said persons, which was or were defamatory of the plaintiff. Indeed none of the said persons was called to testify on the matter. The plaintiff therefore failed to discharge the burden of proof.
The plaintiff's claim under this head must fail for lack of evidence substantiating it.
The plaintiff succeed on the claim for false imprisonment, for which he is awarded damages to be assessed if not agreed. He fails on the claim for defamation.
The plaintiff, having succeeded on only one of his two claims, is awarded 50% of the costs of the action to be taxed if not agreed.
Pronounced in open court at Blantyre this 6th day of January 2017.
R. Mbvundula