Nyondo v Attorney General (Civil Cause No 1096 of 2005 ) ((Civil Cause No 1096 of 2005 )) [2006] MWHC 48 (01 January 2006);




CIVIL CASE NO. 1096 OF 2005






Makono for the plaintiff

Gonaulinji Court Clerk


This matter comes before me on 5th April 2006 for assessment of damages following a default judgement that was obtained by the plaintiff on the 30th 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 28th 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 14th 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 18th 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