Mkwanda v Attorney General (Civil Cause No.292 of 2004) ((Civil Cause No.292 of 2004)) [2005] MWHC 109 (01 November 2005);




CIVIL CAUSE No.292 OF 2004


WITNESS MKWANDA ……………………… …………...….……….. PLAINTIFF



Coram: T.R. Ligowe : Assistant Registrar

Chinoko : Counsel for the plaintiff

Chulu : Court Clerk Interpreter


This assessment follows a default judgment the plaintiff obtained against the defendant herein. The plaintiff commenced action by writ of summons claiming damages for false imprisonment.

The defendant did not attend the hearing on the date appointed despite having been served with the notice. No reason for the non attendance having been given, the court proceeded in the absence of the defendant.

The plaintiff’s evidence was that on 27th March 2000 while he was in the employ of Panganani Lever Brothers Distributor at Mponela as a shop Manager, he was arrested by the police. That day the shop’s books of accounts were being audited and there was a shortage of 1.2 million Kwacha. In his evidence the plaintiff says this money had actually been borrowed by his boss Mr. Chimbereko but he did not repay. Mr Chimbereko however reported to police that the plaintiff had stolen the money and the police came to arrest him. He was at police from 27th March to 3rd April 2000 when he was released on bail. He was again detained from 7th to 10th April 2000. On 10th April 2000 he was remanded to prison by the Magistrates court at Mponela. He was again released on bail on 18th April. He on this day deposited a bond of K15 000 in court as the court had ordered. He had been reporting for bail until 16th October 2000 when the prosecution withdrew the case. He applied for a repayment of the money he had deposited but he was told the money had been embezzled at the court and so he could not be repaid.

The plaintiff was dismissed from his employment. He was being paid K2 300 as a shop Manager. At prison he was sleeping without beddings. He was being bitten by lice. He was eating once a day and the relish were partially cooked beans. He was unable to quickly secure another job at Mponela as people thought he was a thief.

The plaintiff has to be awarded 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. Further any pecuniary loss which is not too remote is recoverable. The pecuniary losses fall into two categories, the one being any loss of general business or employment and the other the plaintiff’s costs incurred in procuring his discharge from the imprisonment. (See McGregor on Damages 16th Edition para. 1850-51)

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. 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 15 69 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 from 27th March to 3rd April 2000 and then again on 7th April 2000 which detention was extended on 10th April 2000 by the Magistrate’s order of remand until he was released on bail on 18th April 2000.

I have in mind the fact that the tort of false imprisonment is said to exist once the facts show an infliction of bodily restraint which is not authorized by law and without justification. (Mphoka v. The Attorney General Civil Cause no 258 of 1997 (HC) (Lilongwe District Registry) (unreported)). Section 42(2)(b) of the Constitution of the Republic of Malawi provides that every person arrested for the alleged commission of an offence has the right to be brought before a court of law, within 48 hours, to be charged or to be informed of the reason for his further detention failing which he or she has to be released. I am also mindful that since the plaintiff was further detained as a result of the Magistrate’s Court order of remand, any damage suffered as a result thereof is too remote a consequence of the defendant’s deeds in this case. The court acted in the exercise of its independent discretion. The case in point is Lock v. Ashton (1848) 12 Q.B. 871 where the plaintiff wrongly arrested by the defendant’s authority, was brought before a magistrate who remanded him in custody. It was held that the plaintiff could recover damages in an action for false imprisonment only up to the time of the remand.

In this case the plaintiff has to be awarded damages for the period he was in custody minus the 48 hours, up to the time he was remanded. This is not a very long period. I would think that K100 000 can adequately compensate him for the damage he suffered. I also award him the K15 000 claimed for his bail bond. In total, I award the plaintiff K115 000 plus costs of the action.

Made in chambers this …………day of November 2005.

T.R. Ligowe