IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE NO. 223 OF 2005

BETWEEN

MOFFAT
CHIHOLO PHIRI..……………………………PLAINTIFF

-AND-

THE
ATTORNET GENERAL......…………………...DEFENDANT

CORAM: MANDA,
SENIOR DEPUTY REGISTRAR

Matumba
for the plaintiff

Nankweya
Court Clerk

ORDER
ON ASSESSMENT OF DAMAGES

This
matter came for assessment of damages following a default judgment
that was entered by the court on the 19^th
day of September 2005, in which it was adjudged that the defendant
should pay the plaintiff general and special damages, to be
assessed
and taxed. During the assessment hearing only one witness testified
and that was the plaintiff herself.

The
claim before me was for the sums of US$ 3, 430 and K190, 000 as
special damages, damages for false imprisonment and costs of
this
action. The claim followed the arrest and detention of the plaintiff
on or about the 23^rd
day of March 2003, by the Malawi police at the Mchinji Border. It was
the plaintiff’s evidence that he is a businessman who travels
to
Zambia to but cement and lime for resale in Malawi. On this occasion,
the plaintiff told the court that he had caught a lift
with someone
on his way to Zambia and that he had with him some electric
accessories which he intended to go and sale there. Upon
getting to
the Zambian Border at Mwami, the plaintiff told the court that he was
detained by Zambian police officer on instructions
of two Malawian
CID officers. Upon his arrest, the plaintiff testified that he was
taken into an office at the Zambian Border where
he was told to
remove all his clothes so that he could be searched.

According
to the plaintiff, he was never told what the police were looking for
or why he was arrested. The plaintiff further told
the court that
after being searched he was taken to a certain grocery where a woman
was asked to identify him but that she could
not. At the same time,
the plaintiff informed the court that as they were coming back from
the woman’s shop, they met a vehicle
from the Mchinji police
station in which there was a CID officer who knew him and told his
colleagues to release him as he was
not a thief. Apparently after
this CID officer had said this, the plaintiff was indeed released but
that by then he could not find
his property and money as they were
allegedly removed from the car he was traveling in upon his arrest.
Indeed it would seem that
the driver of the car in which the
plaintiff was traveling is the one who removed the goods including
the plaintiff’s bag containing
the money he now claims. This of
course raises questions especially considering that if the plaintiff
had caught a lift in this
car then he must have obviously known the
driver and I would think that in the normal setting of things, the
driver ought to have
waited to find out what had happened to the
plaintiff. The fact that this did not happen could raise the
presumption that the driver
might have taken advantage of the
situation and taken the money himself. Of course I should add that
this could be regarded as
a direct consequence of the defendant’s
agents action of detaining the plaintiff. In any case the matter is
one of liability,
which I would want to believe has been settled by
the default judgement. Indeed the position that we stand on as of now
on the
present instance is that there is an uncontested assertion
that the plaintiff did lose money as a result of the defendant’s
actions
in this instance. Further to that there is a judgement of the
court, albeit interlocutory, that the defendant should pay the
plaintiff
special and general damages, which the court is to assess.

In
my assessment however, I did note that the only thing that I am
supposed to assess are the general damages regarding the false

imprisonment, as the special damages regarding the sums of money were
specifically pleaded. Perhaps the only thing is that in drafting
the
default judgement, counsel did not specifically mention the figures
claimed, but rather just makes reference to the term special
damages.
So perhaps to regularize that aspect of the judgement I would say
that the plaintiff is “awarded” the sums of K190
000 and US$3
430, which he pleaded for and specifically claimed.

Having
said this I now turn to the claim for false imprisonment. It has been
stated that where the liberty of a person in interfered
with, damages
are given to vindicate the plaintiff’s rights. In Hastings
B. Nyirenda v Attorney General
Civil Cause No. 945 of 1997 (unreported) it was further held that for
the tort of false imprisonment, damages are recoverable mainly
for
the loss of dignity and factors taken into account include injury to
liberty and feelings; disgrace and humiliation and also
loss of
social status, among others. Indeed I must also add that discomfort
and the time of detention are also factors that need
to be taken into
account. In this instance the plaintiff has prayed for an award of K5
000 for the one and a half hours that he
was detained. In his
submission counsel for the plaintiff claimed that this figure is just
and fair considering the devaluation
of our currency. Indeed looking
at the circumstances of this case and having examined other case
authorities on the subject, I
would agree with counsel that an award
of K5 000 would be fair and just in the circumstances and I
accordingly do award the plaintiff
the sum of K5 000 as damages for
false imprisonment. The plaintiff is also awarded costs.

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

K.
T. MANDA

SENIOR
DEPUTY REGISTRAR