IN THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
CIVIL
CAUSE NO. 2273 OF 2001
BETWEEN:
BLESSINGS J A MAKULUDZO………………………….PLAINTIFF
AND
THE ATTORNEY GENERAL ……………………………DEFENDANT
Msisha
S.C, Counsel for the Plaintiff
This is
this courts’ order on assessment of damages made pursuant to a default judgment
in favour of the plaintiff for damages for assault and battery, false
imprisonment and for mental stress and suffering and violation of
constitutional rights. The judgment is
dated 19th February, 2002.
The notice
of hearing of this assessment was duly served on the defendant who did not turn
up at the hearing. That left the
plaintiff’s testimony uncontroverted.
The
plaintiff herein aged 28 years went to attend a rally addressed by the
President of the Malawi Congress Party (MCP) at that Party’s headquarters at
Chichiri. That was on 17th
August, 1999. The plaintiff had gone to
the MCP headquarters with two friends.
On arrival at the entrance to that headquarters around 12.00 noon, the
plaintiff’s way was blocked by police.
Thereafter police officers grabbed the plaintiff’s friend and started
assaulting him. When the plaintiff
tried to plead with the Senior Officer on the scene he was himself assaulted by
a police officer. The plaintiff was hit
with a button stick on the area above his left eye where a scar is clearly
visible now resulting from a cut to that area.
The plaintiff optical nerves were also affected resulting in blurred
vision in the left eye. The plaintiff
was crying and bleeding to the extent that his shirt was soaked with his own
blood. The police then grabbed the
plaintiff and threw him into the vehicle so that they take him to their
station.
But on
seeing that the plaintiff was bleeding badly the police then decided to branch
to Queens hospital where they dropped the plaintiff for treatment. The cut on the plaintiff’s eye was
stitched. The prognosis on the recovery
of the plaintiff’s eye is poor. The
plaintiff had to start using spectacles since his left eye had been affected
badly by the assault herein. The
plaintiff spent K4,325.00 on the spectacles he is using now. At this point the court notes that the
expenditure by the plaintiff on the spectacles is a special damage which ought
to have been pleaded. As the same was
not pleaded no award ought to be made
in relation to the plaintiff’s expenditure on the spectacles. But nevertheless it has clearly been proved
in evidence that an expenditure on spectacles was done. Should the plaintiff be punished for
counsel’s over sight? The answer is
no. K4,325.00 is awarded to the
plaintiff.
This court
is aware that on a claim for damages for assault and battery damages are
awarded on using the same approach as in personal injuries actions especially
where the assault involves injury to the plaintiff. The award is therefore a conventional one taking into account
awards in cases of a broadly similar nature.
See Nankhoma v. Attorney General Civil Cause Number 3623 of 2000, In the Nankhoma Case
the plaintiff had been badly beaten by a group of people resulting in severe
pain all over her body as well as wounds on her back, chest, legs and
arms. She was awarded K55,000.00 as
damages for assault and battery she had suffered.
This court
has considered the fact that the plaintiff’s injuries herein are not as severe
as those suffered by the plaintiff in the above cited case. Nevertheless, the kwacha has depreciated in
value since the award in the above case.
Upon
considering these factors and the particular injuries suffered by the plaintiff
as well as the assault and battery taken by the plaintiff herein this court
awards the plaintiff K60,000.00 as damages for the assault and battery he
suffered.
On the
claim for damages for false imprisonment this court is aware that such damages
are awarded for injury to liberty and feeling.
That is the indignity, mental suffering, disgrace, and the accompanying
loss of social status see Mc Gregor on Damages 15th Edition paragraph 1619 at
page 1026. The period of imprisonment
and the accompanying conditions all play a vital role in the determination of
the award. The court notes that the
plaintiff herein was bundled into a car accompanied by several members of the
Malawi Police Service. He must have
really felt bad. The period of
imprisonment though was relatively short as it involved travel time from
Chichiri to Queens Hospital. This court
has considered the awards made in similar case to this one.
In Namasiya
v S K Guard Servie’s Civil Cause Number 1831 of 2002 the plaintiff
was awarded K50,000.00 as damages for imprisonment for 2 days in a solitary
room.
Upon
considering all the circumstances in the instant case this court awards the
plaintiff K7,000.00 as damages for the false imprisonment herein which was
unjustified and in violation of the plaintiff’s constitutional rights to
personal freedom.
Costs of
this action are for the plaintiff.
Made in
Chambers at Blantyre this 9th September, 2003