Ngwira v Attorney General (Civil Cause No.314 of 2004) ((Civil Cause No.314 of 2004)) [2005] MWHC 88 (01 September 2005);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE No.314 OF 2004

BETWEEN

MARTIN NGWIRA ...….…………………………………………………… PLAINTIFF

AND

THE ATTORNEY GENERAL …………………………………………… DEFENDNAT


Coram: Ligowe : Assistant Registrar

Kadzakumanja: Counsel for the plaintiff

Chulu : Court Clerk Interpreter


ORDER ON ASSESSMENT OF DAMAGES

The plaintiff entered a default judgment for damages to be assessed on a claim for damages for false imprisonment for a period of 25 days and loss of employment and costs of the action. In his statement of claim the plaintiff pleaded that he was at all material times an employee of the Reserve Bank of Malawi as a Microfilming Archives Clerk until 3rd June 2001 when he was dismissed. On 23rd November he was arrested by the Police at Lingadzi Police Station on allegations of conspiracy to commit a felony. He was remanded at Maula Prison up to 18th December 2001, a period of 25 days. He was prosecuted before the S.G. M. Court at Lilongwe and was acquitted on 2nd November 2003. The arrest and subsequent trial were unlawful. He was dismissed as a result of the arrest and prosecution. And by reason of that he suffered loss and damage. Hence the present action.


All matters of liability having been concluded by the default judgment, my duty now is to assess the damages as ordered.


The defendant having not appeared on the date appointed for the assessment of the damages despite due notice of the same and the defendant having not communicated as to the reason for the non attendance, the court proceeded in his absence.


The plaintiff in his evidence confirmed the facts of the case as pleaded in the statement of claim. He told the court that the first six days of his incarceration he was at Lingadzi Police station. There were over 20 people in a cell of a maximum capacity of eight. It was too congested and it smelled too bad as the inmates had to urinate right in there. Then he was taken to Maula Prison. The cell was also congested. There were more than 100 people in a cell of a maximum capacity of 60. All of them were using one toilet both as a toilet and a bathroom. He was eating once a day.


The plaintiff further testified that he lost his job at Reserve Bank of Malawi as a result of the detention. His salary was K13 628.00 and house allowance K11 342.86 per month. That he was first suspended on 2nd January 2002 and then dismissed on 3rd June 2002. I have to use this evidence in coming up with an award of damages to the plaintiff.


Damages for false imprisonment are generally awarded for the impecuniary loss of dignity. The principal heads of damage appear to be the injury to liberty i.e. the loss of time considered primarily from a non pecuniary viewpoint, and the injury to feelings i.e. the indignity, mental suffering, disgrace, and humiliation with any attendant loss of social status. In addition there may be recovery of any resultant physical injury or discomfort, as where the imprisonment has a deleterious effect on the plaintiff’s health. Further any pecuniary loss which is not too remote is recoverable. The pecuniary losses fall into two categories, the one being any loss of general business or employment and the other the plaintiff’s costs incurred in procuring his discharge from the imprisonment. All this has to be pleaded as special damages. (See McGregor on Damages 16th Edition para. 1850-51)


The assessment of the damages is left to the court’s discretion. The damages are awarded to compensate the plaintiff in so far as money can do it. See Benson Nakununkhe v. Paulo Chakhumbira and Attorney General Civil cause No. 357 of 1997 (Unreported). The extent of that compensation must be such that members of the society will be able to say that the victim has been well compensated. To do that it is desirable that as far as possible comparable injuries should be compensated by comparable awards. Damages for false imprisonment however need not be made exclusively on consideration of the time factor. See Fernando Mateyu v. Atupele Haulage Ltd Civil Cause NO. 906 of 1993 (unreported). In Donald Ngulube v. Attorney General civil cause No 1569 of 1993 Mwaungulu Registrar as he then was had this to say;

“In relation to time I would say that longer imprisonment, in the absence of alternative circumstances, should attract heavier awards, shorter imprisonment in the absence of aggravating circumstances should attract lighter awards. What should be avoided at all costs is to come up with awards that reflect hourly, daily and monthly rates. Such an approach could result in absurdity with longer imprisonments and shorter imprisonments where there are assimilating or aggravating circumstances. The approach is to come up with different awards depending on whether the imprisonment is brief, short or very long etc and subjecting this to other circumstances.”


Considering the circumstances of this case this court is of the view that K200 000 is enough to compensate the plaintiff for his loss of dignity due to the imprisonment.


On loss of employment counsel for the plaintiff submitted that S.H. Metani v Pharmacy Medicines and Poisons Board Civil Cause No. 580 of 2001 (unreported) and J.F. Chanza v Southern Bottlers Limited Civil Cause No. 4 of 2000 (unreported) would equally be applied in this matter. The two were awards of damages for wrongful dismissal from employment. The question I have is whether the measure of damages for wrongful dismissal from employment would be the same as that for loss of employment which is not too remote from false imprisonment. As it was held in the Chanza case the starting point in considering damages in cases of wrongful dismissal would be the contract between the parties. Nyirenda J said:

“If there is nothing beyond wrongful termination or breach of the contract there will be nothing to make the court go outside the terms of the contract.”

McGregor on Damages 15th Edition at paragraph 1167 it is stated:

“The measure of damages for wrongful dismissal is prima facie the amount that the plaintiff would have earned had the employment continued according to contract subject to a deduction in respect of any amount accruing from any other employment which the plaintiff, in minimizing damages either obtained or should reasonably have obtained.”


In either case, loss of employment as a result of false imprisonment and wrongful discharge from employment, the plaintiff ceases to earn his living. Certainly an award of damages in either must be aimed at compensating the plaintiff for the loss he has suffered - the lost earnings. In Childs v. Lewis (1924) 40 T.L.R. 870 Lush J. directed that a company director who was forced to resign on his being arrested was entitled to his lost director’s fees.


The plaintiff in this case was dismissed on 3rd June 2002. By the date judgment was entered on 25th June 2004 he had not obtained another employment. I would think that one year is reasonable time within which he should have obtained another employment. I would grant him his lost earnings for that one year subject to tax. i.e. (K13 628.00 + K 11 342.86) * 12 = K299 650.32.


In summary the plaintiff is awarded K200 000 for loss of dignity and K299 650.32 for loss of employment. He gets a total of K499 650.32 plus costs of the action.


Made in chambers this ………… day of September 2005.



T.R. Ligowe

ASSISTANT REGISTRAR