Court name
High Court General Division
Case number
135 of 1996
Case name
Efange v Attorney General
Law report citations
Media neutral citation
[2001] MWHC 64






IN
THE HIGH COURT OF MALAWI





LILONGWE
HIGH COURT





CIVIL
CAUSE NO. 135 OF 1996











BETWEEN:








PETER
MIKY EFANGE………………...………..PLAINTIFF





-and-





THE ATTORNEY GENERAL…………...…….DEFENDANT











CORAM: HIS
HONOUR, M.C.C. MKANDAWIRE


DISTRICT REGISTRAR


Mr. Chazama of Counsel for the plaintiff


Miss
Nyirenda – Official interpreter








R U L I N G





This
matter was commenced on the 7
th
of March 1996 through a writ of Summons. On the 2
nd
of September 1996. Judgment in default was obtained in favour of the
plaintiff. Since then, there had been several adjournments
and
eventually on the 20
th
of May 1997, the matter came up for assessment of damages before the
then District Registrar His Honour Mr. R.R. Mzikamanda now
Judge of
the High Court. I note from the notes/record that the Registrar
adjourned the matter for ruling pending submissions to
be made in
writing within 7 days. The said submissions were filed with the
Court on the 2
nd
of July 1997. For reasons better known to the then Registrar, ruling
in this matter has not been delivered. The matter was thus
brought
to my attention recently by plaintiff’s Counsel that this matter
had been brought before the then Assistant Registrar
(now deceased)
Mr. Chafuwa. Unfortunately, the original file which is believed to
have been in the custody of Mr. Chafuwa has
not been traced. Counsel
for the plaintiff therefore decided to bring a provisional file with
photocopies made from their office
file so that I look at the record
and come up with a ruling. Looking at the nature of the case and how
long it has taken before
the plaintiff could reap the fruits of
litigation, I decided to make the ruling of course depending on the
testimony of the plaintiff.





By
writ of Summons issued on the 7
th
of March 1996, the plaintiff’s claim against the defendant was for:







  1. Recovery of USD15,000 being the
    value of his Mazda 626 motor vehicle registration number ZA 4192
    which was destroyed by members
    of the Malawi Army on or about the
    3
    rd
    of December 1993 at Kamuzu Institute for Youth.









  1. Exemplary and punitive damages
    to be assessed.









  1. Interest on the sum in
    paragraph 1 above.









  1. Costs of this action.







As
I have already stated, a default judgment was entered. Thus with the
entry of a default judgment, I take it that the issue of
liability
was settled then and there. My only duty now is thus to assess the
damages.



The genesis of this case is the
famous
“Operation
Bwezani”
though it
took place some seven years ago but is so fresh in the minds of most
Malawians. Thus I have fully taken Judicial notice
of this incident
in which several civilians lost their property as the formidable
officers and men of the then Malawi Army i.e.
the Armed Forces were
in pursuit of the then famous but notorious and now defunct Malawi
Young Pioneers popularly known as M.Y.P.
The plaintiff’s wife a
Cameroonian National was then working for Walani Private Schools. On
the material day, she had gone
to the Institute for Youth for a
school ceremony. She used the family car ZA 4192. As she was at the
institute, the Malawi Army
raided the institution in pursuit of the
M.Y.P. who were believed to have camped there. It was then common
news that the institute
for youth was a rendezvous for these dear
brothers and sisters of ours. In the course of the gunfire at the
institute, the plaintiff’s
motor vehicle was completely damaged.
The plaintiff’s wife tendered in court several documents to back up
the claim in relation
to the value of the motorcar and also tendered
in documents from Lotus Motors the established dealers of Mazda cars.
At the time
this case came up for assessment in 1997 the value of a
similar motor vehicle was put at K630,000. There was however
calculated
a depreciation value of 5% on the sum of K630,000. This
depreciation value was calculated for the period from 1991 when the
car
was purchased. This left us with an amount of K475,000. This
figure thus represents the value as of 1997. Ruling in this matter

is however being given in 2001 due to some very difficulty
circumstances which this case has witnessed. It would therefore be

in the interest of justice that this Court should take into account
the value of the kwacha. Since 1998, our kwacha plunged and
there
have been massive devaluations. I would therefore safely say that
the replacement value should now take into account this
massive
devaluation. I therefore award the plaintiff K850,000 as the
replacement value.







The plaintiff would also like to
have exemplary and punitive damages. I am not sure whether the
plaintiff was really serious about
this. I say so because both the
witness and Counsel in submission did not touch on this issue. I
have also taken into account
the circumstances which had surrounded
this
“Operation
Bwezani”
. These
are events which may be are inevitable in countries which are
undergoing political metamorphosis. I am therefore reluctant
to
award any punitive or exemplary damages.





The
plaintiff also claimed for interest on the sum to be awarded on the
value of the car. The issue of interest is in the discretion
of the
Court in matters of this nature. I am of the view that the amount I
have awarded herein is enough. I finally award costs
of this action
to the plaintiff.





MADE
IN CHAMBERS
this 12th
day of May 2001 at Lilongwe.

















M.C.C. Mkandawire


DISTRICT REGISTRAR