IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL
CAUSE NO. 2468 OF 2001
BETWEEN:
GOODSON MPATA …………………………………………. PLAINTIFF
AND
THE ATTORNEY GENERAL …………………………… DEFENDANT
This is an
order on assessment of damages pursuant to a default judgment entered in favour
of the plaintiff dated 3rd April, 2002.
The
plaintiff’s claim is for damages for assault and battery, false imprisonment,
defamation, malicious prosecution and
costs of this action. A notice of
hearing of assessment of damages was taken out by the plaintiff and although it
was served on the defendant, there was no appearance made from the defendant’s
Chambers. That left the plaintiff’s
testimony totally unchallenged. The
plaintiff herein was driving at Kamba in the City of Blantyre on 14th
July, 2002 at 9.00 pm when a police motor vehicle suddenly stopped in front of
him blocking his way.
Immediately,
Pambalipe, a Policeman came out of the Police vehicle. This Pambalipe had on previous occasions
called the plaintiff to Soche Police Station to ask him about a certain
cell-phone the plaintiff had purchased from a certain Mr Kamanga. And on one such occasion Pambalipe had
solicited K1,000.00 from the plaintiff to which the plaintiff had responded by
offering K500.00 only which Pambalipe
refused to accept. The plaintiff had
reported that matter to the Anti-Corruption Bureau.
Pambalipe
then came up for the plaintiff and pulled him out of his vehicle and hit him in
the ribs and the plaintiff fell on the tarmac.
The 4 other policemen who were in the police vehicle immediately
alighted from their vehicle and descended on the plaintiff and all beat
him. The policemen lifted up the plaintiff
and pressed him hard against their vehicle.
One of the policemen beat the plaintiff on the back using the butt of a
gun he was carrying and caused him great pain.
The
policemen then threw the plaintiff into the Land Rover where he crashed. And the policemen got into the vehicle and
pressed the plaintiff against the vehicle all the way from Kamba to Soche
Police Station. On arrival at Soche
Police Station the Policemen took the plaintiff inside the station and led him
along a narrow passage which had a burrier at the end. And there 3 officers who were on night duty
began to beat the plaintiff. Thereafter
the plaintiff was pushed into a cell filled with urine and he was given a bottle to use for passing water.
The
plaintiff was in police custody until he was released on 16th July,
2000 at around 8.00 am. When the
plaintiff was being arrested at Kamba Pambalipe shouted to his fellow Policemen that the plaintiff had stolen a
cell phone. And the plaintiff was taken
before Soche Magistrate Court on the charge of being suspected of having stolen
goods. This charge was dropped by the
Police prosecution upon an offer of no evidence resulting in the acquittal of
the plaintiff in October, 2000.
The
plaintiff herein is a businessman who had a pick up truck and 3 shops around
Kudya, Chitawira and Chimwankhunda.
Clearly
the plaintiff herein is entitled to damages for the assault and battery
occasioned to him by the 5 policemen herein at Kamba and the 3 policemen at
Soche Police Station.
The court
has considered the cases cited by counsel for plaintiff on the quantum of
damages on the plaintiff’s claim for assault and battery.
In Nakununkhe
vs. Chakhumbira Civil Cause Number 357 of 1997 an award of
K10,000.00 as damages was made for assault and battery on 22nd
October, 1997. And in Nyirenda
vs. Attorney General Civil
Cause Number 945 of 1997 in which a sum of K80,000.00 was awarded on 2nd
June, 1998 as damages for assault and battery and false imprisonment.
The court
also looked at the case of Mhango vs. Attorney General
Civil cause Number 908 of 1998 where K30,000.00 was awarded as damages for
assault and battery on 16th March, 1999. Of course it is appreciated by this court and the value of the
Kwacha has depreciated since the awards cited above were made.
Upon a
careful consideration of the above awards and all the circumstances obtaining
in the instant case the court awards the plaintiff K80,000.00 as damages for
assault and battery.
On the
plaintiff’s claim for false imprisonment damages are awardable for loss of
dignity, mental suffering, discomfort among others suffered by a
plaintiff. The period of incarceration
is also a consideration under this head. See Mc Gregor on Damages
15th Edition at par. 1619.
The court considered the cases cited by counsel for the plaintiff on the
quantum of damages as well as other more recent cases decided by this court.
In Nankhoma
vs. Attorney General Civil Cause Number 3623 of 2000 the plaintiff
who had been falsely imprisoned for 2 days was awarded K30,000.00 as damages
for false imprisonment.
Upon
consideration of the awards referred to above and the particular circumstances
in this case the court awards the plaintiff the sum of K40,000.00 as damages
for false imprisonment.
The
plaintiff claims damages for defamation as well. The court observes that the defamatory words herein were not
extensively publicized and were only related to the 4 policemen who heard
Pambalipe say that the plaintiff had stolen a cell-phone. And the court in the circumstances awards
the plaintiff the sum of K10,000.00 as damages for defamation. This is so awarded upon considering the
cases on awards made by this court in similar cases that were cited by counsel
for the plaintiff and which this court does not wish to reproduce.
On the
claim for damages for malicious prosecution it is clear that the police simply
trumped up charges in a bid to vindicate Pambalipe’s unprofessional
behavior. In the light of the
circumstances obtaining in the instant case and on considering the cases cited
by counsel for the plaintiff on the quantum of damages under the head of
malicious prosecution the court awards the plaintiff the sum of
K30,000.00. This award is made in the
light of a similar case of Nankhoma vs. Attorney General
(cited above) in which an award of K25,000.00 was made on similar facts to the
ones herein for malicious prosecution on 1st August, 2002.
Finally,
the court awards costs of this action to the plaintiff.
Made in
Chambers at Blantyre this 17th April, 2003.