Davie Thomu Muhondo v Polyplast Limited (Civil Cause No. 3626 of 2001) ((Civil Cause No. 3626 of 2001))  MWHC 25 (01 May 2005);
IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NO. 3626 OF 2001
DAVIE THOMU MUHONDO………………………………………………………………PLAINTIFF
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
Place and Dates of hearing: Blantyre
22nd December 2003 & 19th January 2004
3rd May 2004 & 5th May 2004
Date of judgment:
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.
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:
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.
The sum of K8,700.00 being Legal Practitioners collection charges.
Damages for loss of earnings by reason of the Plaintiff’s certificate being allegedly withheld by the Defendant.
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:
Giving money to the Plaintiff to go to Maneb so as for him to obtain a replacement of the certificate.
Advising the Plaintiff to refer all prospective employers to it for confirmation of his qualification.
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
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:
what posts did the Plaintiff hold in the Defendant Company.
Whether or not the Plaintiff was discriminated against as against other in so far as the pay for the posts he allegedly held at the
Whether or not the Defendant has wrongly withheld the Plaintiff’s certificate.
Whether or not the Plaintiff suffered any loss or damage as regards his certificate.
Finally, and depending on whether the above issues are answered in the affirmative, the Court will have to determine whether the Plaintiff’s
points of claim should be awarded to him. Accordingly, if the determination by this Court will be against the Defendant it will not
become necessary to air its views on the reliefs claimed by the Plaintiff.
It is now important, before the Court makes any findings of fact on the issued stated
above, that I say something above the evidence that was offered by the parties herein and the facts arising from the said evidence.
The testimony and facts
Both the Plaintiff and the Defendant offered earlier evidence in this matter. Their
testimonies-in-Chief was mostly in a form of written witness statements. The Plaintiff put in one witness statement while the Defendant
had two witness statements. Further, the authors of these statements availed themselves at trial to adopt their statements and also
to give viva voce evidence. It is from these written witness statements, and the viva voce evidence, that the facts of this case which this Court will shortly set out below:
The following are what the Court has found to be the facts disclosed by the evidence
Engagement of the Plaintiff
The parties are in agreement that the Plaintiff was engaged by the Defendant Company
sometime in the month of March 1999. Further, it is common fact that the Plaintiff was employed as a casual labourer at a salary
of K1,300.00 per month. Moreover, there is no dispute as regards the fact that the Plaintiff worked in this capacity as a casual
labourer for four(4) months i.e. March 1999 – 15th July 1999. Indeed, the parties agree that the Plaintiff’s changed from being casual labourer but are at cross purposes as regards
what posts he eventually held when he stopped being designated as a casual labourer.
Post held by the Plaintiff in the Defendant Company
The Plaintiff has told this Court that the Defendant eventually employed him as a
Mixer. Further, the Plaintiff says that as such Mixer he was supposed to get a salary of K4,000.00 per month like other Mixers working
in the Defendant Company.
As will be seen from the Defendant’s evidence their story is different. The
Defendant avers that the Plaintiff was later engaged as a Mixing Assistant on a probationary terms confirmation as an Assistant Mixer.
Further, the Defendant states that for this job the Plaintiff was getting a wage of K22.00 per day of Eight(8) hour work. Actually,
the Defendant Company tendered in evidence two letters to substantiate its contention on the question of offer of employment to the
Plaintiff and the latter’s confirmation of employment as such Mixing Assistant (Assistant). The letter of offer of employment
is dated 15th July 1999 and shows that the Plaintiff accepted the offer of employment. The said letter was in the following terms:
“NAME D. MUHONDO
RE; OFFER OF EMPLOYMENT
We are pleased to offer you employment as A MIXING ASSISTANT on the following Terms and Conditions:
Starting date 26/7/94