Davie Thomu Muhondo v Polyplast Limited (Civil Cause No. 3626 of 2001) ((Civil Cause No. 3626 of 2001)) [2005] MWHC 25 (01 May 2005);

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IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

CIVIL CAUSE NO. 3626 OF 2001

BETWEEN:

DAVIE THOMU MUHONDO………………………………………………………………PLAINTIFF

                  and

POLYPLAST LIMITED…………………………………………………………………………DEFENDANT


CORAM:   THE HON. MR JUSTICE F.E. KAPANDA
                  J. Gulumba, of Counsel for the Plaintiff
                  C. Tukula, of Counsel for the Defendant
                  M.H. Fatch, Official Interpreter/Recording Officer



Place and Dates of hearing: Blantyre     22nd December 2003 & 19th January 2004
                                                      3rd May 2004 & 5th May 2004

Date of judgment:                                   …………May 2005












JUDGMENT


INTRODUCTION

         As will be observed this judgment has taken long to be handed down. The reasons for this delay are two fold viz firstly, Counsel for the Defendant has not, despite so many reminders, given the Court the Defendant’s closing submissions in this matter. Even at the time of writing this judgment the Defendant has not submitted its closing written submissions. Secondly, due to circumstances that I found myself last year I was not able to attend to this matter. The delay is very much regretted. I have decided to proceed to hand down the judgment even thought the Defendant has not yet submitted its written closing submissions.

         The Plaintiff is a former employee of the Defendant Company. He has taken out this action to seek compensation from this Court. The basis of his claim is centred on an alleged discrimination that he suffered when he was in the employ of the Defendant Company. Further, the Plaintiff is claiming damages for loss of earnings which he alleges were suffered as result of his certificate being withheld from him. The Plaintiff also seeks an order requiring that the Defendant Company should return his certificate. Moreover, the Plaintiff is claiming costs of, and arising out of, this action. Additionally, the Plaintiff is demanding that the Defendant pays him Legal Practitioner’s collection charges.

         The Defendant Company is challenging all the claims made by the Plaintiff. Indeed, the Defendant denies each and every allegation of fact made by the Plaintiff except the one to do with the fact that the Plaintiff was at one point in line its employer. Naturally, the Defendant wants the Plaintiff’s action dismissed.

Pleadings

         I would like now to set out the five points of the Plaintiff’s contention and the Defendant’s reply to the allegations of fact made by the former. The said allegations by the Plaintiff and the response thereto are in the pleadings that were exchanged between the parties herein. The said pleadings are the Plaintiff’s statement of claim and reply to defence on the one hand. On the other there is the Defendant’s Defence.
The Complaint by the Plaintiff

         The Plaintiff’s allegations are in a statement of claim and reply to a Defence which are unusually long. The following are, in a sketch, the material allegations of fact that have been made by the Plaintiff in his statement of Claim and Reply to Defence:

         The Plaintiff was employed by the Defendant as a casual labourer on or about the 22nd day of March 1999 at a salary of K1,300.00 per month. [The said employment was allegedly verbally terminated on 27th September 2001] Should come at end of complaint].

         It is the further alleged by the Plaintiff that he was neither given a formal letter of employment nor made to sign any letter of offer of employment confirming acceptance of the employment offered to him. The Plaintiff further alleges that the Defendant, having realized that he has a Malawian School Certificate of Education, promoted him to the post of a Mixer. Additionally, it is his allegation that he was asked to produce and surrender the original of his certificate to the Defendant as proof of his qualification for the said new post of Mixer.

         The Plaintiff moreover alleges that the monthly salary for a person employed as a Mixer was K4,000.00 but for 6 months the Defendant continued to pay him a salary of K1,300.00. It is further claimed by the Plaintiff that he was later assigned the post of Quality Inspector which he held from February 2000 to September 2001. Again, the Plaintiff asserts that the salary for the post of Quality Inspector was K3,500.00 yet he was being paid a monthly salary of K1,300.00 being a salary for a casual labourer. Accordingly, the Plaintiff contends that he is entitled to be reimbursed the difference in the salaries between that of a Mixer and a Quality Inspector and that of a Casual Labourer. He further charges that he worked as a Mixer for six months and for that he is entitled to be reimbursed the sum of MK16,200.00. As regards the post of Quality Inspector he alleges that the reimbursement would be in the sum of MK39,600.00 being the difference he ought to have been given as a salary for the period of 18 months which he allegedly worked as a Quality Inspector.

         Moreover, the Plaintiff charges that his services with the Defendant were verbally terminated on 27th September 2001 whereupon he requested for the return of his Malawi School Certificate of Education which was in the custody of the Defendant. He continues to allege that despite this request the Defendant has failed and/or neglected to return the said certificate to him. It is further intended by the Plaintiff that the non-return of his certificate has caused him embarrassment and inconvenience for he is unable to get new employment and pursue a course in computing.

         The Plaintiff, therefore, claims the following from the Defendant:
(a)     
The sum of K55,800.00 being money he says was wrongly withheld from him by the Defendant in respect of his so called salaries as a Mixer and Quality Inspector.

(b)     
The sum of K8,700.00 being Legal Practitioners collection charges.

(c)     
Damages for loss of earnings by reason of the Plaintiff’s certificate being allegedly withheld by the Defendant.

(d)     
A return of the certificate.

The Plaintiff is also claiming the costs of, and occasioned by, the action he commenced against the Defendant.

The Reply by the Defendant

         The Defendant has joined issues with the Plaintiff on the claim as set out in the Plaintiff’s statement of claim. For purposes of clarity, the Court has already set out the Defendant’s statement of defence which contains the latter’s reply to the statement of the claim. It is, therefore, not necessary to repeat the contents of the Defendant’s response. However, it will suffice to give the essential elements of the Defence by the Defendant which I do hereunder as follows”

         The Defendant, whilst admitting that at one time it had custody of the Plaintiff’s certificate, denies that the Defendant requested for its return at the time the Plaintiff’s services were terminated. It is further asserted by the Defendant that it took all necessary measures to avoid the alleged damage due to the loss of the Plaintiff’s certificate by doing the following:

(a)     
Giving money to the Plaintiff to go to Maneb so as for him to obtain a replacement of the certificate.
(b)     
Advising the Plaintiff to refer all prospective employers to it for confirmation of his qualification.
(c)     
Taking an initiative to facilitate the replacement of the certificate.
The Defendant further contends that the Plaintiff was offered a job as a Mixing Assistant which the latter accepted on 15th July 1999 and the salary for such job was K22.00 per day. It is further contention of the Defendant that the Plaintiff’s appointment as a Mixing Assistant was confirmed with effect from 1st February 2000.

         Finally, the Defendant charges that the Plaintiff failed to understand mixing procedure and was therefore transferred to its Inspection Department as a trance but such transfer was not a promotion.

Reply to Defence

         As stated earlier, the Plaintiff has given a reply to the Defendant’s Defence. The particulars of the reply have already been given as footnote. The essence of the reply is that the Plaintiff is maintaining his allegation of fact and denying the contentions of the Defendant. As I understand the position at law, this reply was unnecessary for the Plaintiff has only denied the allegations of fact the Defence put up by the Defendant. Further, the Plaintiff avers that he is legally entitled to equal pay for equal work for the said alleged posts of Mixer and Quality Inspector.

         The above is an outline of what the pleadings are in this matter. It is now necessary that the issues that a rise from the and require to be determined, be set out in this judgment.

Issues for Determination

         The Court has pointed out that there has been a joinder of issues between the parties. This has, as a matter of law, arisen from the pleadings that were exchanged herein. as I understand it, the following are the main questions that arise from the pleadings:

(a)     
what posts did the Plaintiff hold in the Defendant Company.