Twea v Dwangwa Sugar Corporation (Civil Cause No. 617 of 2006) ((Civil Cause No. 617 of 2006)) [2006] MWHC 121 (25 September 2006);

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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 7th April 2006. He avers in his statement of claim that in 1999 he a farm manager at the defendant’s Matiki 2 farm. On 26th 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 31st 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 21st 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 26th 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 7th 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 25th day of September 2006.





T.R. Ligowe

ASSISTANT REGISTRAR