IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE No.152 OF 2005

BETWEEN

TSADZU
CHIKUSE
…………………………. …………...….………..
PLAINTIFF

AND

ATTORNEY
GENERAL
…………………. …………………………. DEFENDNAT

Coram: T.R.
Ligowe
: Assistant Registrar

Kita
: Counsel for the plaintiff

ORDER ON ASSESSMENT OF
DAMAGES

The plaintiff obtained a
judgment against the defendant in default of defence for damages for
false imprisonment, assault and battery,
and an order to return or
pay the market value of four cows to be assessed and costs of the
action.

The facts of the case as
claimed by the plaintiff are that in or around December 1999, he was
arrested by the Police on allegation
that he had stolen Mr. Mdelera’s
two cows. The Policemen beat him up severely with a chain of a
bicycle as a result of which
he fainted. He was in custody for two
days. He suffered severe personal injuries, loss of liberty and
conversion of his four cows.

Let me point it out at the
outset that the cause of action for conversion does not come out
clearly from the statement of claim.
For that reason the statement of
claim is bad as it has omitted some material facts. Thus the
plaintiff is not entitled to give
any evidence on those facts. (per
Scott L.J. Bruce
v. Odhams Press Ltd.
[1936] 1 All ER 287). I will therefore not take any evidence on the
conversion of the four cows.

The defendant was not there on
the date appointed for the assessment of the damages despite due
service on him. No reason for the
non attendance having been
communicated, the court proceeded in his absence.

The plaintiff’s evidence as
far as it was material confirmed the facts claimed in the statement
of claim. He further stated that
he was arrested for no apparent
reason. He received a summons to report at Mitundu Police and when he
reported at the Police he
was arrested and beaten at the back with a
crank of a bicycle tied to a club that he bled heavily. Afterwards he
was told to report
at Lilongwe Police Station. When he reported, no
case was opened against him and was set free.

As already said earlier on I
will consider evidence and award the plaintiff damages on the claim
for false imprisonment and assault
and battery only.

Firstly, 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
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.”

Secondly, damages for assault
and battery, where it has not resulted into physical injury are
awarded to compensate the plaintiff
for their injury to feelings.

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.

In this case the imprisonment
is short. I remember in Feston
Konzani v. Team Security Civil
Cause No. 277 of 1996 (Lilongwe Registry) (unreported) the plaintiff,
a redundant defendant’s employee, who had been arrested
for 20
hours and 20 minutes and heavily assaulted was awarded K40 000. In
the circumstances of this case, I award the plaintiff
K120 000 for
imprisonment and assault and battery, plus costs of the action.

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

T.R. Ligowe

ASSISTANT REGISTRAR