IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CAUSE No.65 OF 2004
BETWEEN
SYMON KAMPHATA ... . PLAINTIFF
AND
THE ATTORNEY GENERAL .. ... DEFENDNAT
Coram: Ligowe : Assistant Registrar
Kadzakumanja : Counsel for the plaintiff
Njirayafa : Court Clerk Interpreter
ORDER ON ASSESSMENT OF DAMAGES
The plaintiff commenced action against the defendant claiming damages for false imprisonment, malicious prosecution, loss of business at the rate of K6 000 per day or such rate as the court may deem fit, recovery of missing parts from his motor vehicle or K82 100 the value thereof and costs of the action. He pleaded that he was at the material times a businessman operating a motor vehicle spare parts shop in the city of Lilongwe. On or about 12th December 1997 the plaintiff together with other people were arrested by the defendants agents, police officers from Lilongwe Police Station on allegations of illegal possession of firearms and ammunition. On the same day the police seized the plaintiffs motor vehicle registration No. 2295, a Peugeot 504 and kept it at the Police Station. The plaintiff was then prosecuted before the Chief Resident Magistrates Court in Lilongwe but was on 13th July 1998 acquitted of the said offences. The plaintiff was remanded at Maula Prison from the date he was arrested to the date he was acquitted. The plaintiff avers he was falsely imprisoned the time he was in custody. That upon release from custody he found a radio cassette and its booster both valued at K35 000, spare wheel valued at K6 000, battery at K3 000, starter motor at K6 500, wheel spanner at K1 500, jack at K4 500, stabilizer bar at K1 500, 20 radio tapes at K4 000, 4 spanners at K1 600 and a bag at K5 000 were missing from his vehicle. That the things missed due to the negligence of the defendants agents in failing to properly look after the vehicle, letting people to enter in the vehicle and remove the parts and in removing the parts from the vehicle. He contends he lost business for the whole period he was in custody and suffered loss and damage, hence the claim.
A judgment for damages to be assessed was entered in default of defence on the part of the defendant. This is the assessment of the damages. The defendant did not appear on the date appointed despite due service of the notice. No reason for the non appearance having been given, the court proceeded on his absence.
There was one witness and that was the plaintiff, Symon Kamphata of P.O. Box 40367, Lilongwe. He testified that on 13th December 1997 in the evening, he was at the taxi rank in town with his vehicle. He took a customer to Mchesi. From there he added another one and took both of them to Bwandilo, Area 47. From Bwandilo he added three more and went escorting one of the customers to Mkonkha on the way to Mchinji but after Namitete. They were arrested at Namitete Road Block for being suspected of being thieves and the vehicle was seized. The following morning they were taken to Lilongwe Police Station and the police went to search at their homes. Nothing was found and the theft charge was dropped and replaced with being in possession of prohibited weapons. The case was tried at the CRM court Lilongwe and they were acquitted on 13th July 1998.
He told the court that at prison he was staying in pain. He would bath once in a week, eat once in a day and he was beaten hard with a siphon at police and had wounds on his back. He was sleeping on the floor without beddings and he suffered from TB upon release.
When he was released he found the items listed in his statement of claim amounting to K81 000 were missing from his vehicle. He was in custody for seven months. The plaintiff further told the court he was making K3 000 per day from the taxi business and K6 000 per day from the spare parts business. He was working six days in a week.
The plaintiff herein claims general damages for false imprisonment and malicious prosecution plus the consequential pecuniary losses.
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 plaintiffs 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 plaintiffs costs incurred in procuring his discharge from the imprisonment. The pecuniary losses have to be pleaded as special damages. (See McGregor on Damages 16th Edition para. 1850-51)
The principal head of damages for malicious prosecution is to the fair fame of the plaintiff, the injury to his reputation. In addition the plaintiff can also recover for injury to his feelings, i.e. for the dignity, humiliation and disgrace caused him by the fact of the charge preferred against him.
I have heard all the evidence in this case. It is not clear how long it took before the plaintiff was taken to court after arrest. It appears he was taken to court very soon after arrest, in which case further detention was by order of the court. The plaintiff has to be compensated for damage that is not too remote a consequence of the defendants acts. Just as an action for false imprisonment will not lie against one who has procured anothers imprisonment by obtaining a court judgment against him, even if the judgment is in some way irregular or invalid, so any continuation by a judicial officer of an imprisonment initiated by the defendant is too remote. (See Mcgregor on Damages 15th Edition Paragraph 1622). In Lock v. Ashton (1848) 12 Q.B. 871 a plaintiff was wrongly arrested by the defendants authority and 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. (See also Diamond v. Minter [1941] 1 K.B. 656). For the period subsequent to the remand, damages can only be claimed by the plaintiff in an action for malicious prosecution if at all.
Counsel for the plaintiff submitted as if the plaintiff was under false imprisonment throughout the seven month period but the circumstances of this case show that the greatest part of the detention was by order of the court. I will award damages substantially for malicious prosecution.
The assessment of the damages is left to the courts 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 J.K. Manonga v. Attorney General, Civil Cause No. 1804 of 2003 (unreported) I awarded K50 000 to a Regional Mechanical Engineer at PVHO. The prosecution took unreasonably too long to complete as in this case. That was in September 2004. In this case I award the plaintiff K70 000.
I now turn to the consequential pecuniary losses. The plaintiffs evidence was not challenged due to the absence of the defendant. Adding the values of the items that missed from his vehicle I get a total of K68 600. I award him the said K68 600 for the lost spare parts.
The plaintiff did not show the court any books of accounts to show that he was indeed making K3 000 per day from his taxi business and K6 000 from his spare parts shop. But he certainly must have lost business the time he was in custody. I award him K500 000 for loss of his business.
The plaintiff has been awarded a total of K638 600 plus costs of the action.
Made in chambers this day of October 2005.
T.R. Ligowe
ASSISTANT REGISTRAR