IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE No.433 OF 2005

BETWEEN

GEORGE M.
LOWE
…….………………… …………...….…….. 1^ST
PLAINTIFF

DEMESTER
CHIKHAWO ………………………………………… 2^ND
PLAINTIFF

AND

THE ATORNEY
GENERAL
…….……… …………………………. DEFENDNAT

Coram: T.R.
Ligowe
: Assistant Registrar

Mapila

: Counsel for the plaintiffs

Nakweya :
Court Clerk

ORDER ON ASSESSMENT OF
DAMAGES

The plaintiffs obtained a
default judgment against the defendant on a claim for damages for
false imprisonment, mental anguish,
defamation and exemplary damages
plus costs. The facts giving rise to this action as averred in the
statement of claim are that
the plaintiffs were at the material times
Members of Parliament for Lilongwe Southwest and Lilongwe Machenga
respectively. On or
about 20^th
October 2002 they were arrested by the Police on allegations of
forging the signature of the former State President of this country,

Dr. Bakili Muluzi. They were incarcerated at Kanengo Police Station
until they were released the following day when they were granted

bail by the court. The news of their arrest was published to the
newspaper and was thereby widely circulated. They were charged
with
forgery and prosecution commenced. About a month later the Director
of Public Prosecutions discontinued the case against them.
By reason
of the aforesaid matters the plaintiffs sustained great anxiety and
suffered loss and damage. Further, the conduct of
the Police was
arbitrary, oppressive and unconstitutional and the plaintiffs claim
exemplary damages.

This is an order on assessment
of the damages the plaintiffs suffered. The defendant did not attend
on the date appointed for the
assessment despite having been duly
served with the notice. No reason for the non attendance having been
communicated the court
proceeded in his absence. Two witnesses
testified.

The first was George Lowe, the
first plaintiff. His testimony confirmed the facts claimed in the
statement of claim. On Sunday,
20^th
October 2002, at around 2.00 pm, the Police came to search for the
forged letter at his house. They found it with him but he had
gotten
it from the 2^nd
plaintiff. They took him to the National Police Headquarters and he
was kept until around 7.00 pm when interrogation started. He

explained how he became in possession of the letter. After a while
the 2^nd
plaintiff was brought in. Then they were both taken in a Land Rover
to Kanengo Police Station where they were locked in a small
cell full
of 16 people. They had to lean against the wall throughout the night.
If they wanted to stretch their legs they had to
ask the other
inmates to allow them lay their legs on them (the inmates). There was
a bucket in the cell which all of them were
using as a toilet. The
room was unbearably too hot and full of mosquitoes. They slept
without eating that night. In the morning
they were not allowed to
take the breakfast their wives had brought as the Police said they
were rushing to court with them. They
were granted bail around 4.30
pm. Prosecution of their case continued but was later withdrawn for
lack of evidence. George Lowe
further testified that he was affected
by the arrest in that it was done while Parliament was in session and
he missed it. His
business was affected. He was affected by the fact
that from Kanengo to Court he was chained when he had commited no
offence. And
he lost his seat in Parliament. MCP that time was in two
factions, Tembo’s and Gwanda’s. He belonged to the Tembo faction
but
the case associated him with the Gwanda faction and he had to be
called to explain why he belonged to Gwanda’s camp.

The second and last witness was
Dempester Chikhawo, the 2^nd
plaintiff. His evidence confirmed the facts in the statement of claim
and the testimony given by the first witness. He was arrested
around
7.00 pm on 20^th
October 2002 and taken to Police Headquarters. He further testified
that the arrest affected him so much. He had been an MP for
Lilongwe
Kumachenga for 15 years and was very popular in his constituency. But
then he became unpopular and lost his seat eventually.
He earned his
living by being an MP. He had loans and he is still servicing them
and yet he is not working. His reputation was
damaged for no apparent
reason.

This is a claim for damages for
false imprisonment. 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)

Several factors will have to be
considered in assessing damages for false imprisonment. The factors
will apart from the time spent
under custody, include; the personal
circumstances of the plaintiff (Fernando
Mateyu v. Atupele Haulage Ltd.
Civil Cause NO. 906 of 1993 (High Court, Principal Registry)
(unreported), and the hardship suffered by the plaintiff while in

custody. (N.H.A.
Thyangathyanga v. Attorney General.
[1995] 1 MLR 341). 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. In Reggie
Kanjere v. Attorney General
(High Court, Principal Registry) (unreported) the plaintiff, a
politician, was arrested at gun point by a group of armed Policemen

and was taken to Blantyre Police Station where he was left in an open
space surrounded by seven heavily armed policemen who kept
on
pointing their guns at him. He was imprisoned for 19 hours. I
consider the Kanjere
case comparable
to the present one. I take into account the fact that the Kwacha has
since devalued and therefore award each of the
plaintiffs K200 000
plus costs of the action.

I award no damages for
defamation as there has not been proof of the said damages against
the defendant.

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

T.R. Ligowe

ASSISTANT REGISTRAR