Court name
High Court General Division
Case number
Civil Cause 1096 of 2005

Nyondo v Attorney General (Civil Cause 1096 of 2005) [2005] MWHC 48 (31 December 2005);

Law report citations
Media neutral citation
[2005] MWHC 48
Coram
Null

IN
THE HIGH COURT OF MALAWI


LILONGWE
DISTRICT REGISTRY


CIVIL
CASE NO. 1096 OF 2005





BETWEEN




DOMINIC
J. M. NYONDO………………………………PLAINTIFF





-AND-





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








CORAM: MANDA,
SENIOR DEPUTY REGISTRAR





Makono
for
the plaintiff





Gonaulinji
Court Clerk





ORDER
ON ASSESSMENT OF DAMAGES





This
matter comes before me on 5
th
April 2006 for assessment of damages following a default judgement
that was obtained by the plaintiff on the 30
th
day of December 2005. During the assessment only one witness
testified and that was the plaintiff himself.





The
plaintiff’s claim was for damages for unlawful arrest, malicious
prosecution, false imprisonment and loss of property and
business
earnings. It was the plaintiff’s evidence that he is a businessman
who buys and sells various items including motor
vehicles and Soya
beans. Apart from this business, the plaintiff also informed the
court that he also used to run a video show
room and a bottle store.
The plaintiff did duly tender into court the licences for his video
show and for exporting Soya. It was
the plaintiff’s testimony that
on or about the 28
th
day of October 2004, he went to Dowa to buy maize seed for his
business and that while he was discussing with the person who was
to
sell him the maize, he was arrested by the police on suspicion that
they were plotting to go and steal at the Action Aid offices
at Dowa.
Following the arrest, the plaintiff told the court that he appeared
before the Dowa Magistrate court where he was charged
with two
counts, conspiracy to commit a felony and possession of a firearm.
The plaintiff was only convicted on the count of possession
of a
firearm on 14
th
January 2005 and sentenced to 24 months. Having been convicted by the
lower court, the plaintiff successfully appealed to the High
Court
against both his conviction and sentence, on the 18
th
day of May 2005. To buttress this point, the plaintiff proceeded to
tender in evidence the order on confirmation made by Justice

Chinangwa (ExP5). Out of interest, I did have occasion to go through
the confirmation order and I did note that the events leading
to the
arrest of the plaintiff were different from what he informed this
court. In ExP5, it was stated that the plaintiff was arrested
by
members of the public while trying to escape from the police. This
was actually after a car chase with the police in which the
police
had to shoot out the tyres of the getaway vehicle.





The
reason for my outlining of the facts in this case I such detail is
because the tort of false imprisonment exits when the facts
show an
infliction of bodily restraint which is not authorized by law and is
without justification
(this is per Justice Mtambo in
Mphoka
v The Attorney General

Civil Cause No. 258 of 1997 (unreported)). Having regard to the
facts, it was my considered view that the fact that the plaintiff
was
detained in custody by a court following his being charged with an
offence and that the same court committed him to prison
following a
trial, made his detention legal and therefore authorized by law.





Secondly,
regarding the issue as to whether the plaintiff’s arrest had been
unlawful, the question becomes was the arrest without
justification.
In this regard I was of the view that from the facts presented in the
confirmation order, the arrest was justified.
This is in the sense
that the law regarding unlawful arrest is that the arrest becomes
unlawful where the arresting officer or
person did not have
reasonable suspicion (see
Wiltshire
v Barret
[1965]
2 All E.R. 271). Applying the law to the current facts, I would want
to believe that, on a balance of probabilities, the
plaintiff did
provide the police with reasonable suspicion warranting his arrest by
attempting to escape while the police were
questioning his friend
Wyson Chizula Lenadi. Indeed there will always be the question to why
did the plaintiff attempt to flee
if his intentions for being found
in Dowa were innocent. More importantly though I do not think that
under these circumstances
the plaintiff can successfully maintain a
claim for false imprisonment. Indeed it must be stated here that the
fact that the plaintiff
was acquitted by the High Court did not
render the arrest unlawful. With this in mind then, I do not think
that the claim for false
imprisonment can be entertained and I do
accordingly dismiss it.





Having
dismissed the claim for false imprisonment, it is also my view that
the claim for loss of business during the time the plaintiff
was in
custody would also fail because the two claims are related. This then
only leaves me with the claim for special damages
for the loss of
house hold items at the time that the plaintiff was arrested. In this
regard, it was the plaintiff’s claim that
when he was arrested the
police went and searched his house, and took an Aiwa VCR, a car alarm
and some various documents. On the
face of it I did not have any
problems with this claim. However in a claim for special damages it
is a requirement that values
of the items being claimed should be
proved. This is done by tendering in evidence quotations with prices
of the goods claimed
at current market values. In this instance that
was not done and for all intents and purposes the claim was not
proved and I do
duly dismiss it.





Having
found all this then it is the view of this court that since all of
the plaintiff’s claims have failed, the summons to assess
damages
be dismissed in its entirety with costs.





Made
in Chambers this…………….day of……………………2006
































K.T.
MANDA


SENIOR
DEPUTY REGISTRAR