Zindikarani v Attorney General (Civil Case No. 667 of 2004 ) ((Civil Case No. 667 of 2004 )) [2005] MWHC 47 (01 January 2005);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CASE NO. 667 OF 2004


BETWEEN

N. ZINDIKIRANI……………….……………………………...PLAINTIFF

-AND-


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


CORAM: MANDA, SENIOR DEPUTY REGISTRAR

Chilenga for the plaintiff

Njirayafa Court Clerk


ORDER ON ASSESSMENT OF DAMAGES


This is a notice of appointment for the assessment of damages following an interlocutory judgment the plaintiff obtained against the defendant on the 25th day of November 2004. No defence having been served by the defendant, it was adjudged that the defendant pays the plaintiff the sum of K133, 591. 65 being the value of one windscreen and side glasses that were stolen from the plaintiff’s minibus while it was under police custody. It was also further adjudged that the defendant should pay the plaintiff damages for loss of business and profits at the rate of K5, 000 per day, which were to be assessed from 10th May 2001. By the same default judgment the plaintiff was awarded interest and costs of this action.


The brief facts of this case are that the plaintiff is a proprietor of a Toyota Hiace minibus registration number MC 1547 which operates between Mchinji and Lilongwe. On or about the 10th May 2001, the minibus was coming from Lilongwe on its way to Mchinji when it was stopped by Traffic Police officers on a routine check. Upon the officers examining the minibus it was found that its Certificate of Fitness had expired. Noting this, the officers proceeded to charge the driver of the minibus, a Mr. Chimwemwe Magalasi, with the offence of driving without a Certificate of Fitness, which offence normally attracts an on-the-spot fine, which on this particular occasion the driver did not have. Because the driver did not have the money to pay the fine, the traffic officers made a decision to impound the minibus and ordered the driver to drive it to Lilongwe Police Station where it was to be parked until the fine was settled. Indeed it was while the minibus was being so kept that someone went into the Lilongwe Police Station yard and stole from the bus the rear windscreen and six side glasses. The theft of the glasses was noticed by the driver when he went to pay the fine, which apparently was on the day following the seizure of the bus. Upon noticing this, the plaintiff, in his evidence, told the court that his driver informed him of what had happened and that he personally went to the police station where he confirmed the theft of the glasses. Once he had confirmed the theft, the plaintiff told the court that he went and reported the matter to the authorities at Lilongwe Police station, who promised to investigate the matter but apparently never did. Indeed it would seem it was on this basis that the plaintiff made the decision to give instructions to his lawyers to proceed with this lawsuit.


In his evidence during the assessment, the plaintiff told the court that before the glasses were stolen his bus would make him about K8 000 per day in sales but that this was reduced to around about K4 000, during the one and a half months that the bus moved without the glasses. Indeed it was the plaintiff’s claim that he be compensated for loss of business during these forty-five days.


The object of awarding damages has always been said to be to give the plaintiff compensation for the loss that he has suffered. This was well illustrated in the case of General Tire and Rubber Co. v Firestone Tyre and Rubber Co. [1975] 1 W.L.R 819 (H.L). Indeed, damages have been defined as the sum of money which will put a party, who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation. This was as per the speech of Lord Blackburn in Livingstone v Rawyards Coal Co. (1880) 5 App. Cas. 25, 39.


In this instance, it was the plaintiff’s submission that by impounding the minibus the police became bailees of the same and as such had a duty of care to ensure that the bus was kept safely until it was redeemed by the owner. In this regard Counsel for the plaintiff cited the case of Ultzen v Nichols (1894) 1 QB 92. Further to this, counsel also argued that the act of the police of impounding the vehicle on commission of traffic offences in wrong at law. According to counsels view such an act is contrary to Section 20 of the Police Act, which apparently provides in Section 20(2), that all the police are required to do in such circumstances is to take the particulars of the alleged offender it was on the basis of these acts that counsel felt that the police were liable and that government is supposed to pay.


Indeed much as I would want to agree with counsel that the police might have been negligent in keeping the bus safely while it was within their custody, I felt that I should say something about the legality of the seizure of this bus by the police. In the first place I noted that Section 20 of the Police Act provides police officers with powers to inspect licences, permits and vehicles. In fact subsection two provides:-


“any person who fails to produce such licence or permit when called upon by a police officer so to do, may be arrested without a warrant, unless he gives his name and address and otherwise satisfy the officer that he will duly answer any summons or other proceedings which may be taken against him”


Just from the mere reading of this subsection it is noted that there is no provision in the section prohibiting a police officer from seizing a vehicle. In fact the subsection talks of a person being arrested for failing to produce a licence or permit upon being called upon so to do by a police officer. I was thus left to wonder as to how counsel arrived at the interpretation that this subsection prohibits a police officer from seizing a vehicle that has committed a traffic offence. Indeed it was my finding that what counsel had say was a clear misinterpretation and application of the law. In any case Section 69(1) of the Road Traffic Act clearly prohibit a person from operating a vehicle that is not in a road worthy condition, indeed it is an offence for one to drive a vehicle which is not road worthy on a public road. A vehicle is deemed not to be road worthy if it does not satisfy the requirements of a certificate of fitness as provided for in Section 69(3) of the Road Traffic Act. Further, Section 166 of the Road Traffic Act does give power to a traffic police officer to seize a vehicle which is used in the commission or suspected commission of an offence under the Act. In view of this section then, I do believe that it is right and proper for a traffic police officer to seize a vehicle that was being driven without a certificate of fitness because the vehicle itself was the one that was being used in the commission of the traffic offence. I believe this scenario should be distinguished to a situation where the driver himself commits a road traffic offence. Thus in situations where a driver is caught speaking on a cell phone or driving without a licence, I would agree with counsel that the traffic officer would not be justified in seizing the vehicle that the driver was using. In this instance, however, I believe that there was nothing wrong in the traffic officer impounding the minibus.


Having found that there was nothing wrong with the impounding of the minibus, it still remains for me to decide whether the police had a duty of care to the plaintiff. In deciding this, I first of all noted that there was damage that the plaintiff had suffered. I also took cognizance of the fact no action lies in negligence unless there is damage (see Midland Bank Trust Co. Ltd v Hett, Stubbs & Kemp [1979] Ch. 384. in this regard it is quite clear to the court that there was damage to the minibus in that its glasses were stolen and that this resulted in the plaintiff suffering pecuniary loss. Furthermore, it is the view of this court that in such circumstances the onus was on the defendant to show that the theft of the glasses was no due to their negligence. However, as is becoming customary nowadays, the defendant never made an appearance at the proceedings and indeed never disputed the fact that the loss of the glasses was due to their failure to safeguard the minibus while it was in their custody. Indeed it is the view of this court that the police did have a duty to keep the minibus safely until the plaintiff had redeemed it and I would agree with counsel for the plaintiff that their failure to do so amounted to negligence.


Having said this and also having observed that there was no opposition to this assessment of damages, I would proceed to grant the plaintiff’s prayer and proceed to award him the sum of K225, 000. 00, as general damages for the period when the vehicle was used without the glasses. As for the sum of K133, 592.65, which counsel also prayed for, I believe that this amount represented the special damages that the plaintiff had suffered. Indeed this court noted that the same had been specifically pleaded and that judgment had already been entered for that amount, albeit in default. It is therefore in view of this that I did not address myself to that part of the plaintiff’s prayer.

Finally I do also proceed to award the plaintiff interest on the sum assessed as well as costs for this action.


Made in Chambers this…………….day of………………………………….2005








K.T. MANDA

SENIOR DEPUTY REGISTRAR