IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE No. 96 OF 2005

BETWEEN

GIFT MASAMBA
…….…………………………. …………...….……..
PLAINTIFF

AND

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

Coram: T.R.
Ligowe
: Assistant Registrar

Kita

: Counsel for the plaintiff

Nakweya :
Court Clerk

ORDER ON ASSESSMENT OF
DAMAGES

The plaintiff entered a default
judgment against the defendant for damages for false imprisonment,
assault and battery and cost
of this action.

The facts of the case as
pleaded in the plaintiff’s statement of claim are that he was until
31^st
July a guard in the employment of CEDAR Guard Services. On 8^th
September, he went to CEDAR to collect his salary arrears. While
waiting to be attended to, he peacefully started preaching the
word
of God to the people that were around him. He was immediately
arrested by two CID Policemen on the pretext the he was harassing
Mr.
Kamata, the owner of CEDAR Guard Services. He was beaten and he
sustained a deep cur on his forehead and nose for which he
was
treated at Lilongwe Central Hospital while in the custody of the
Police. He was wrongfully imprisoned for a period of 36 hours
and
there by sustained shock and mental anguish. The plaintiff plead
further that the Police acted as aforesaid out of spite and
malice
towards the plaintiff. They arrested the plaintiff in broad daylight,
in public and thereby subjecting him to humiliation
and disgrace and
brought him into ridicule and contempt.

The hearing of the assessment
was done in the absence of the defendant as he did not communicate
the reason for his non attendance
despite having been duly served
with the relevant notice.

The plaintiff’s testimony
confirmed the facts pleaded in the statement of claim except that he
told the court he was in custody
for day. He tendered a report, which
the court marked EXP1, from Lilongwe Central Hospital showing that he
sustained a cut wound
on the left side of the forehead of about 3cm
long and some millimeters deep made by a blunt object. He further
testified that
he paid K850 to get this medical report.

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.”

Damages for assault and
battery, where it has resulted into physical injury are calculated as
in any other action for personal injury.
That is, he may recover for
both his pecuniary losses and non pecuniary losses. The pecuniary
losses comprise two separate items
viz.
the loss of earnings and other gains which the plaintiff would have
made had he not been injured and the medical and other expenses
to
which he is put as a result of the injury. The non pecuniary losses
comprise pain and suffering, loss of amenities of life and
loss of
expectation of life.

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
K100 000 for
imprisonment and assault and battery, plus costs of the action.

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

T.R. Ligowe

ASSISTANT REGISTRAR