HIGH COURT OF MALAWI
CAUSE NO. 1053 OF 2000
THE ATTORNEY GENERAL
HONOUR, M.C.C. MKANDAWIRE
Mr. Kadzakumanja of Counsel for the plaintiff
Nyaka Official Interpreter
R U L I N G
This is an appointment to assess damages following a
default judgment that the plaintiff herein obtained in his favour on
the 10th of July
2001. The defendant were served with the notice to assess damages
herein. They did not turn up for hearing neither their
representatives. No reasons were given for such a failure. I
therefore went ahead to assess the damages on the uncontroverted
testimony of the plaintiff.
a writ of Summons issued on the 25th
of October 2001, the plaintiffs claim against the defendant is for
damages for false imprisonment, assault and battery. There
default judgment in his case, the issue of liability has thus been
plaintiff told the Court that he is working with the Malawi Prisons
as a prison warder. He is based at Katundu Prison. His
that on 12th
November 1999, he was arrested by the police right at his house. The
police came in the company of prison officials and arrested
from his house at around 5.00 a.m. After his arrest, he was bundled
into a police motor vehicle where he found Mr. Kaliyeka
Phiri who was
also under police arrest. The plaintiff said that he wanted to know
from the police as to why he was under arrest.
Instead of answering
his question, the police hit him with a boot and they took him to the
police cell. It had to take police
prosecutors to rescue him from
the brutality of these other policemen. The police then transferred
him to Kasungu Prison and he
was barred from being visited by any of
his relatives. As he was in custody that is when he heard that he
was arrested on allegations
of armed robbery. It is the plaintiffs
evidence that whilst at the prison, he was leg chained and heavily
assaulted. On the
of December 1999, the police granted him bail and he tendered the
bail bond form as Pex1. After thorough investigations, the police
Kasungu wrote the Prison Officer in Charge Kasungu that he was
cleared. He tendered the report as Pex2. The plaintiff also
tendered in Court a medical report, which is Pex3. This report shows
the nature of the injuries that he sustained at the hands
police whilst in custody. It is also the plaintiffs evidence that
upon his release from prison, he also developed tuberculosis.
tendered the ticket on which it is indicated that he is on treatment
for Tuberculosis. It is exhibit no. 4.
I have to assess here are damages for
assault and battery.
are the only things that he pleaded for. Damages for false
imprisonment are recoverable under the general subject of tort.
Such damages are not specific. The Court has to look at the period
and also the circumstances, which surrounded such imprisonment.
convinced in this case that the plaintiff was maliciously arrested.
The police did not have proper foundation for his arrest.
He was in
custody for 24 days. Whilst in custody, he was subjected to a lot of
torture. He was heavily beaten as shown through
the medical report.
He was leg chained for some days.
should point it out on the onset here that it is the policy of the
law to jealously guard against abuse of an individuals
freedom. It is for this reason that this countrys Constitution
recognizes and has entrenched the right to personal
18 of the Constitution provides:- Every
person has the right to personal liberty.
This right to personal liberty has to be protected and respected by
each and every person. The right to personal liberty can
interfered with when there is justification under the law. But even
if that is the case, the Constitution still safeguards
it by availing
the suspect with the right to bail. This is very clear in Section 42
(2) (b) of the Constitution.
the instant case before me, the plaintiff was arrested and never
taken before a Court of Law. He was only released on bail
days and that was police bail. There is no justification put forward
as to why he was in custody. Even if there was
such an arrest, the police were supposed to bring him before a Court
of Law within 48 hours. It is only a Court
of Law that has the
mandate whether to further detain the suspect after the 48 hours.
What the police did therefore by keeping
the plaintiff under lock and
key for 24 days was what we call false imprisonment. The plaintiff
whilst in custody was heavily
assaulted again a total violation of
the Constitution because a person in custody is not supposed to be
subjected to any form of
a case of false imprisonment the general underlying principle is that
damages are awarded for loss of dignity and factors considered
arriving at the award include injury to the reputation, mental
suffering, the discomfort that may be caused by the false
and the attendant loss of status amongst others. See
McGregor on Damages 1st
Edition p. 1026.
making an award in a given case Courts are guided by other cases, of
course, each case has its own peculiar facts and circumstances.
have thus looked at several comparable awards in similar cases. In
the case of Reyford Malemia and Attorney
General Civil Cause No. 699 of
1995, the plaintiff was awarded K10,000:00
for false imprisonment that last for about 32 hours. This case was
decided over 5 years ago
when the value of the Kwacha was stronger.
As of now, the value of the Kwacha has gone low although there are
some symptoms of
recovery. In the present case, I have also taken
into account that the plaintiff was badly treated. He was beaten.
He was leg
chained. Visitors were not allowed to see him. Being a
prison warder, he was heavily humiliated. He is now a TB patient and
he suspects that he contracted it whilst in custody. All these are
aggravating issues that call for reasonable compensation. I
him the sum of K100,000:00 for false imprisonment and K30,000:00
assault and battery. I also award him costs of this
IN CHAMBERS this 4th
day of September 2001 at Lilongwe.