IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE No.862 OF 2005

BETWEEN

ERUSTUS
KACHINGA ………………………
…………...….……….. PLAINTIFF

AND

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

Coram: T.R.
Ligowe
: Assistant Registrar

Kalasa
: Counsel for the plaintiff

Chulu
: Court Clerk

ORDER ON ASSESSMENT OF
DAMAGES

The plaintiff obtained a
judgment against the defendant in default of defence for retirement
benefits from 13^th
March 2003 to his statutory retirement age of 55, damages for false
imprisonment, malicious prosecution and defamation including

exemplary damages, and costs of the action.

The facts form the plaintiff’s
statement of claim are that he is a former employee of the Malawi
Army whose rank and designation
was that of PTE and his number was
10645. On or about 5^th
February 2002 the defendant caused the plaintiff to be placed under
close arrest for 42 days and his motor vehicle and cellphone
were
seized on fictitious allegations that he had misappropriated Army
funds. The defendant without wrongdoing on the part of the
plaintiff
forced the plaintiff to retire prematurely before the statutory
retirement age of 55 as stipulated in the Army Act. The
plaintiff has
suffered loss and damage and therefore claims retirement benefits
from 13^th
March 2003 to his statutory retirement age of 55, damages for false
imprisonment, malicious prosecution and defamation including

exemplary damages, and costs of the action.

This is the assessment of the
damages. Hearing took place in the absence of the defendant as he did
not attend despite having been
given due notice.

Erastus Kachinga was the sole
witness. His evidence confirmed the facts in the statement of claim.
He testified that he was locked
up in a guard room on 26^th
June 2001 and
released on 6^th
July 2001 and then locked up again on 12^th
July and released on 7^th
August 2001 on allegations that he, together with others, had stolen
K7 000 000 from the Finance Office at the Malawi Army. That
they
were charged before the Army Commander who told them that after
investigations no evidence had been found against them, but
he had
decided to dismiss them form work from that date 12^th
March 2003. They were paid their pension benefits. Between August
2001 and March 2003 they were not at liberty to go out as they
were
told their case was still being investigated. On 13^th
March 2003 he was paid his retirement benefits. He had worked in the
army for 12 years and 10 months and was 33 years old that
time. His
gross pay was K7 319.12 per month.

The plaintiff further testified
that he was published in the Daily Times of 20^th
November 2002 under the title “Suspended Soldiers Ask for Speedy
Trial”. The publication of that article does not concern the

defendant in this case and he would not be liable if it were found to
be defamatory. So no damages will be awarded for defamation
in this
case in that respect.

There is a claim in this case
for retirement benefits from 13^th
March 2003 to the plaintiff’s statutory retirement age of 55. The
retirement benefits claimed obviously are meant to compensate
the
plaintiff for wrongful dismissal from employment. At the same time I
bear in mind that the plaintiff was at the material times
(before the
Defence Force Act 2003) subject to compulsory resignation, dismissal
by the president and compulsory retirement under
the Army (Regular
Force) (Officers) Regulations in the Army Act. It is true that all
matters as to liability are settled by the
default judgment. But in
the absence of evidence in the form of letters dismissing him from
employment and the pension benefits
that were paid to him upon
dismissal, I have difficulties to award him the damages claimed and
so I make no award on that claim.

I now remain with damages for
false imprisonment and malicious prosecution. The plaintiff testified
that he was never taken to court
for prosecution and gave no evidence
indicating any steps taken to prosecute him. As such I award no
damages for malicious prosecution.

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. (See McGregor
on Damages 16th
Edition para. 1850-51). Damages for false imprisonment 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.”

In this case the plaintiff was
in custody for 42 days. Under S. 74 of the Army Act, his case was
supposed to be duly investigated
without unnecessary delay, and as
soon as may be either proceedings to be taken for punishing his
offence or to released from arrest,
and every eight days from arrest
a special report on the necessity for further delay made by his
commanding officer to the Army
Council and the Director of Public
Prosecutions. It would appear this provision was not complied with. I
consider the imprisonment
in this case long and award the plaintiff
K300, 000 as damages for false imprisonment plus costs of the action.

Made in chambers this …………day
of August 2006.

T.R. Ligowe

ASSISTANT REGISTRAR