IN THE HIGH COURT OF
MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 349 OF
1993
BETWEEN :
F. SAULOSI (FEMALE)
.......................................
PLAINTIFF
AND
MALAWI HOUSING
CORPORATION ............. DEFENDANT
CORAM : W.M.
HANJAHANJA, J.
Mhone of
Counsel for the plaintiff
Chagwamnjira
of Counsel for the defendant
Mr Kaundama,
Official Interpreter
JUDGMENT
The plaintiff is a
victim of mistakes made by her employers, the Malawi Pharmacies Limited (MPL),
and the defendant, the Malawi Housing Corporation (MHC). To a certain extent she is also a victim of
her own mistakes.
The story is that she
was a tenant of MHC under a Lease agreement dated 13th May, 1981 signed by the
plaintiff and MHC. It was exhibited in
court. MHC denies she was their tenant.
In defence MHC pleads:-
The defendant denies
that the plaintiff was a lessee of any of its houses and puts the plaintiff to
the strict proof thereof.
I found this defence
very strange indeed. If not evasive
certainly misleading. The defence is
deficient of seriousness.
Then the defence goes
on:-
The defendant denies
that the plaintiff paid rent regularly and avers that at the time of eviction
if any which is denied the plaintiff had arrears of house rent.
Again:-
The defendant denies
ever trespassing to or evicting the plaintiff from the house or any house...
I find this defence
vexatious, frivolous and an abuse of the process of the court and deficient of
seriousness. How can it be argued that
there were arrears of rent if it is denied there was a lease agreement?
This part of the defence
ought to have been struck off at the early
stages of the proceedings. Time
was wasted to prove the existence of the lease and justification for eviction.
Orders for further and
better particulars, Orders to Admit facts orders for interrogatories should be
considered before trial to narrow the issues down, to define issues and to
diminish expense and delay at the trial.
In my judgment if I find
for the plaintiff I order that no costs be awarded for time spent on proving
the existence of the Lease Agreement.
Likewise no costs for
defendant for time spent to prove justification for the eviction.
The trial of this case
was presided over by the learned Judge, Hon D. Mwaungulu. He heard the evidence from the beginning to
the end. What remained was for him to
write and deliver the judgment. He
could not. He left the country for
studies overseas.
The file was sent to me
to prepare a judgment. I have perused
carefully both the pleadings and the evidence.
The only handicap I am faced with is I did not see the demeanour of the
witness to be able to comment on the credibility of their evidence.
It is recorded in the
file that the plaintiff was working for the MPL as an Accounts Clerk. She occupied and I understand she still
occupies house No. KS 880 under a lease between her and MHC. The house is at Kanjedza in Blantyre. She produced a copy of the lease as her
evidence.
Instructions were given
to her employers to deduct every month money from her salary and pay rent to
MHC. The request was made because she
had walking problems. By that I assume
she was a disabled person. MPL accepted
the request and obliged accordingly. The
deductions started in April 1992.
A problem, however,
emerged later. MHC locked up her house
because their claimed she was in arrears.
Every month a statement was issued and delivered to her by MHC advising
her the state of her house account.
The house was closed, in
October, 1992. She immediately
complained to MHC maintaining that she paid her rent through MPL regularly. On that day her child was locked out and was
crying. Spectators were laughing at the
child. People looked at the plaintiff
as if she were a thief. At the time her
property had been removed into her neighbour’s house. She moved together with her children and a nun somewhere to her
sister’s house.
She denied that she was
ever in arrears. She felt embrassed and
outraged to imagine that people thought of her as a thief because she lived in
a MHC without paying rent.
Consequently upon this
embarrassment here statement of claim pleads:-
5. on or
about the said 23rd day of October 1992, the defendants’ agents falsely and
maliciously spoke and published of and concerning the plaintiff the following
chichewa words: “amenewa tawatsekera nyumba chifukwa chosalipira
lenti.” The English translation of the
said word is as follows:- “we closed the house as the lessee does not pay
rent. The words were published at the
said premises to and in the hearing of Mrs Makwinja and others who were the
neighbours of the plaintiff
6. The said words
in their natural and ordinary meaning meant and were understood to mean:-
(a) the
plaintiff has been guilty of dishonesty and dishonourable conduct
(b) that
she was a dishonest person who stayed at the said premises on false pretences
(c ) that
she was incapable of honouring her own promises and therefore unfit to live in
and associate with people in that locality
7. By
reason of the premises the plaintiff has been much injured in her credit and
reputation and has been brought into hatred ridiculed and contempt. AND the plaintiff claims damages for mental
stress and inconvenience defamation, trespass to land and general damages.
A neighbour Mrs Salome
Makwinja was present when the house was closed. This her evidence. She is
a house worker. She is unemployed. She was a neighbour to the plaintiff. MHC official told her were closing the house
because the plaintiff had not paid rent.
She took the plaintiff’s
children to her house. They were then
crying. She offered them food. They refused to take it.
The plaintiff’s house
was close to a bus stage. Mrs Makwinja
heard voices from people at the stage.
They commented that people who did not pay rent should be exposed that
way. She was the only neighbour present
when the house was locked because all her female neighbours go to work.
She denied under
cross-examination that MHC referred to the plaintiff as a thief. The people who came to find out why the
house was locked said the plaintiff was a thief.
However, the predicament
the plaintiff was faced with was resolved at a meeting held between MHC
official and MPL officials. She
attended the meeting. It was established
at the meeting that payments were made regularly to MHC on behalf of the
plaintiff but that only K20.50 appeared on her ledger account as outstanding
from May 1992. The balance remained
unpaid at the time of the closure.
In the course of the
payments MPL issued cheques for payment for a house occupied by a different
tenant. This tenant occupied house
number KS/801. The plaintiff’s house
number is KS/880. This was an error as
will be seen later. MHC did not spot
the error although the error appeared clearly on the MPL Remittance Advice
Note. MHC accepted blame for crediting
the payment into KS/801 account without checking that it was not meant for
house number KS/801 but house number KS/880.
A reconciliation of the payment was made.
I will illustrate:-
(A) (I) MPL’s Remittance Advice 26.11.90 EX 1 DD6
Being house rent for
Miss F. Saulosi K35.90
Plot No. KS/880
Receipt No. 105781 17.12.90
(ii) MPL’s Remittance Advice 30.9.91 K42.00 -ditto-
Being house rent for
Miss F. Saulosi KS/880
Receipt No. 139794 12.11.91
(iii) MPL’s Remittance Advice 29.4.91 K35.90 -ditto-
Being house rent for
Miss F. Saulosi KS/880
Receipt No. 111945 20.5.91
(iv) Remittance Advice 29.1.91 K35.90 -ditto-
Being house rent for
Miss F. Saulosi KS/880
Receipt No. 107845 29.1.91
(v) MPL’s Remittance Advice 30.4.92 EX D7
Being rent for
Miss F. Saulosi KS/801
Receipt No. 64945 K42.00 4.6.92
(vi) MPL’s Remittance Advice 31.3.92 -ditto-
Being rent for
Miss F. Saulosi KS/801 K42.00
Receipt No. 61301 22.4.92
(vii) MPL’s Remittance Advice 27.2.92 K42.00 -ditto-
Being payment for
Miss F. Saulosi KS/801
Receipt No. 145295 23.3.92 -ditto-
(viii) MPL’s Remittance Advice 28.1.92 K42.00 -ditto-
Being rent for
Miss Saulosi KS/801
Receipt No. 145247 23.3.92
(ix) MPL’s Remittance Advice 31.12.91 K42.00 -ditto-
Being rent for
Miss F. Saulosi KS/801
Receipt No. 142176 16.1.92
(B) (I) MHC’s Official Receipt No. 64945 4.6.92 K42.00 EX DD2
Tenant Miss F. Saulosi
House Plot No. KS/801
Cheque No. 108580 30.4.92
(ii) MHC’s Official Receipt No. 65932 22.6.92 K42.00 -ditto-
Tenant Miss F. Saulosi
Plot No KS/880
Cheque No. 708580 30.4.92
(iii) MHC’s Official Receipt No 74127 15.9.92 K42.00 -ditto-
Tenant Miss F. Saulosi
KS/880 - Cheque No 747796 31.8.92
(iv) MHC’s Official Receipt No. 67500 15.7.92 K42.00 EX P2
Tenant Miss Saulosi
KS/880 - Cheque No. 708692 30.6.92
(v) MHC’s Official Receipt No. 64945 4.6.92 K42.00 -ditto-
Tenant Miss F. Saulosi
KS/801 - Cheque No.
708580 30.4.92
(vi) MHC’s Official Receipt No. 74127 15.9.92 K42.00 -ditto-
Tenant Miss F. Saulosi
KS/880 - Cheque 747796 31.8.92 -ditto-
SUMMARY
( C) Payment to correct Account No. KS/880
(I) MPL
A (I) KS/880 K35.90
(ii) MPL A (ii) KS/880 K35.90
(iii) MPL A (iii)KS/880 K35.90
(iv) MPL A (iv) KS/880 K35.90
(v) MPL B (ii) KS/880 K42.00
(vi) MPL B (iv) KS/880 K42.00
(vii) MHC B (vi) KS/880 K42.00
(D) Payment to wrong Account KS/801
(I) A
MPL (v) KS/801 K42.00
(ii) A
MPL (vi) KS/801 K42.00
(iii) MPL
A (vii) KS/801 K42.00
(iv) MPL
A (vii) KS/801 K42.00
(vi) MPL
A (ix) KS/801 K42.00
(vii) MHC B
(I) KS/801 K42.00
(viii) MHC B
(v) KS/801 K42.00
This summary shows the
number of cheques MPL remitted payment for rent for a wrong account which is
house number KS/801. In turn MHC
credited those payments wrongly to house number KS/801. The plaintiff suffered as a result of these
mistakes. The manner MPL and MHC
handled the plaintiff’s rent account to say the list was grossly
unprofessional.
These mistakes could
have been avoided and detected in time before the plaintiff’s house was closed.
Only what was due was
K20.50 at the time of closure as conceded by all parties at the meeting.
I have to find out and
satisfy myself whether or not the arrears constituted sufficient reason for MHC
to treat the contract as having come to an end. I have to satisfy myself that under the lease agreement a
sufficient breach had arisen to justify MHC to implement clause 14 (2) of the
Lease Agreement:-
If the said rent or any
part thereof whether formally demanded or not, shall be unpaid for fourteen
(14) days the day on which it is payable the Corporation may at any time
thereafter enter on the demised property and retake possession thereof without
prejudice of it (sic) remedies for rent then accrued or breach of a covenant.
Arising therefrom there
must be evidence that the entry by MHC did or did not commit a tort in
trespass.
I must also be satisfied
that when MHC officials made a statement that the plaintiff was in arrears of
rent payments, they were telling lies in order to make a finding in defamation.
MHC in its defence pleads:-
4. The defendant denies ever
trespassing to or evicting the plaintiff from the house and further states that
even if it did the said defendant were simply carrying out their duties under
the Tenancy Agreement and their conduct cannot be trespass.
5. The defendant denies that its agents did
maliciously spread or publish the said chichewa words and puts the
plaintiff to the strict proof thereof and even if the words were said are not
defamatory as they presented the true state of circumstances about the
plaintiff.
The accounts clerk at
MPL Mr Gunde confirmed that deductions started from April 1992. He made deductions of K42.00 each month to
October 1993. The house was closed in
October. He then went to MHC to find
out why.
He admitted that he
issued Remittance Advice Note to a wrong plot No. 801 for 880. Plot No. KS/880 was the plaintiff’s house as
mentioned earlier. He pushed the blame
on MHC for not rectifying the error in posting the amount into the wrong
account.
Mr Longwe is a senior
accountant with MHC. This was his
evidence. What happened was that when
the plaintiff discovered that her house had been closed due to accumulation of
rent she went to MHC to complain and find out why. She maintained there were no arrears. Rent was remitted to MHC regularly. For him to confirm, Mr Longwe called for the ledger to stury the
history of her account. He said it was
discovered some rent payment was made to a wrong account for house No
KS/801. It was not a misallocation as
such because the accounts office was mislead by the Remittance Advice notes
from MPL which although in the plaintiff’s name, endorsed a wrong house NO.
KS/801.
The policy of MHC is
that rent is due on the first day of the calender month. Rent is payable in advance. She had not paid K20.96 since May 1993.
According to MHC policy,
Mr Longwe said, the house which falls in arrears above one month or two is
subjected to eviction.
The meeting found that
the plaintiff by the time of eviction was K20.96 in arrears.
What made Mr Longwe to
order to - reopen the house, was on a humanitarian ground, because of the
physical state of the plaintiff. He
felt it would be unfair and inhuman not to open the house.
The amounts credited
wrongly to account for house number KS/801 was K210.00. In May the plaintiff account was debited
with the amount of K230.96. After
correcting the error there was since May an outstanding balance of K20.96
remaining unpaid by October when the house was closed. It was house No. KS/880 which was in
arrears, the plaintiff’s.
He blamed MPL for the
mistakes.
I find that the
undisputed facts are that an overdue amount of K20.96 remained outstanding from
May to October 1993. That period is
well in excess of a period allowed by MHC within which to clear off an
outstanding arrears of rent. I find
therefore MHC applied Clause 14 (2) properly and lawfully.
I, therefore, come to
the conclusion that MHC under the circumstances, used the powers of eviction
and closure legitimately. They acted,
however harshly to close a house for an arrears of K20.96 considering also that
the tenant was alleged to be a disabled person. Nevertheless they cannot be faulted for taking the action. It was done in compliance with the terms of
the lease agreement.
The plaintiff complains
that the MHC’s agents made defamatory statement of her in closing the
house. Mrs Makwinja heard them say MHC
closed up the house because, “amenewa tawatsekera nyumba chifukwa chosalipira
renti.” Meaning we have locked up the
plaintiff’s house for non-payment of rent.
These words per se
are not defamatory. They become
defamatory, in my judgment if they are untrue and made maliciously.
In order to make them
defamatory, an innuendo must be pleaded and proved. Such an innuendo should be proved by
extrinsit facts.
According to Mrs
Makwinja MHC’s agents told her that the house was being closed because the
plaintiff was not paying rent. This is
all they said. They did not say that
the plaintiff was a thief.
People came to check the
house and asked her why the house was closed.
It was her evidence that it was the people who said to her that the
plaintiff was a thief.
I do not think what Mrs
Makwinja heard from the MHC’s agents is defamatory. They were telling the truth about the reasons for closing the
house. It was because there was an
outstanding rent arrears of K20.96 since May up to October when the house was
closed up. I find there was no malice
in what the agents said. It would have
been otherwise if there were no outstanding arrears of rent.
If anybody was guilty of
making a defamatory statement it must be the other people who said to Mrs
Makwinja that the plaintiff was a thief.
These were not MHC agents. MHC
cannot be liable for these peoples torts.
There was no judiciary relationship proved.
It is a petty, that
these agents were not called by either the defendant or plaintiff to testify on
what they said to Mrs Makwinja. None of
these agents were called to give evidence.
Even if this is what the agents said to Mrs Makwinja, it would be unsafe
to accept Mrs Makwinja’s evidence on the absence of the agents evidence
confirming or denying the defamatory allegation especially, if made, they were
made in the absence of the plaintiff.
I do not think the words
complained of in the context used are capable of meaning that the defendants
were guilty of defamation. They are not
capable of the meaning the plaintiff attribute to them. Lord Devlin: Lewis v Daily Telegraph Ltd
1963 2 All E.R. 151.
My Lords, the natural
and ordinary meaning of words ought in theory to be the same for the lawyer as
for the layman because the lawyer’s first rule of construction is that words
are to be given their natural and ordinary meaning as popularly
understood. The proposition that
ordinary words are the same as the lawyer as for the layman is as a matter of
pure construction, undoubtedly true.
But is very difficult to draw the line between pure construction and
implication, and the layman’s capacity for implication is much greater than the
lawyer’s. The lawyers rule is that the
implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and,
unfortunately, as the law of defamation has to take into account, is especially
prone to do so when it is derogatory.
In the law of defamation
these wider sorts of implications are called innuendoes.
A derogatory implication
may be so near the surface that it is hardly hidden at all or it may be more
difficult to detect. If it is said of a
man that he is a fornicator the statement cannot be enlarged by an
innuendo. If it is said of him that he
was seen going into a brothel, the same meaning would probably be conveyed to
nine men out of ten. But the lawyer
might say in the later case a derogatory meaning was not a necessary one
because a man might go to a brothel for an innocent purpose... To say of a man that he was a fornicator
meant and was understood to mean that he was not fit to associate with his wife
and family and was a man who ought to be shunned by all decent persons and so
forth.
There is no evidence
that the plaintiff lost friends as a result of the defamatory statement
complained of. She did not become a
person who was shunned by decent persons and so forth. In fact the opposite was true. Mrs Makwinja took the plaintiff’s child and
nun to her house and offered them food.
I hold therefore, the
action in defamation has not been proved.
It is dismissed. The entire action
consequently is dismissed.
The question of costs
has been exercising in my mind. It is
not the fault of the plaintiff that a controversy between her and MHC
surfaced. It was due to poor
workmanship and unprofessionalism of MPL and MHC that made her suffer. But that does not mean she too, is free from
blame.
MHC issued monthly
statements showing the state of her account at MHC. These statements were addressed and dispatched to her.
The majority of the
statements show the plot number as KS/880.
She received a statement whose plot number was wrongly endorsed
KS/801. When this number appeared
against her name she ought to have been put on notice that an error had been
made. She would have immediately
informed MPL and MHC to investigate.
She did not. Not
surprising. The majority of tenants do
not bother to read all and every details recorded in a statement. They rush to read what the balance column
provides. Once they get the information
they are looking for they will read no more.
Nevertheless, it would
be unfair to condemn her to pay costs for failing in her case. She is a victim of a mistake made across the
board all the way through by MPL, MHC and herself.
I order that each party
shall pay its costs.
MADE IN OPEN COURT on the 27th day of
August 1999, at Blantyre.
W.M. HANJAHANJA
JUDGE