Chirwa v The Attorney General (Civil Cause 1686 of 1994) [1995] MWHCCiv 3 (29 December 1995)

-' IN 'IEE lCTGH mTIRr OF 11ALAWI ' PI-ITlCil?AL REGLS'IRY CIVJL CAUSE NUt1BER 1686 OF 1994 BErWEEJif: ALEX CHA1iPION CIITRWA and THE ATIDRNEY GENEI:~AL ffiRAH: E. B. Tii'Ri\, Rffi I~TT"RAR tlatipwiri> counsel for the Plaintiff DefE?J"XJant./Counsel absent ORDER PLAINTIFF DEFE'NDANI1 \ ' - By bis ,vrit of 1 September 1994, the plaintiff brought an action against the defen:la.nt for false imprisonment, assault an::l loss of profit. On 28 October, 1994, the plai_ntiff obtaine::1 judgment for darrs.ges to be assessal. The 1be rratter vras set for assessment on 8 December, 1994. defendant did not appear. The plaintiff proceeded with bis case and calle::1 one witness : hlroself . The evidence res it th~t the plaintiff was approached at his home in 1iachirrJa arrl questional by Police. He ad.mi t tal to be a member of J ebovah I s witnesses sect. He "'i'IB s askE:rl to buy a party card and he refusal. The Police then arrestal hl. ID.. He vras kept at liachinga Police then at Zo:ml::e Central Prison for 39 months . It ·was his evidence th3.t while in prison he ·was kept in solitary confinement, assaul te::1 until he lost consciousness and would bave focd withheld from him. Generally, he was very badly treata:1. by the Police arr! prison authorities. I brar in JD.irrl that there j_s ju::1gme..nt against the defer.rlant for darr:ages to be assessed on the heads claimed. I wish to point out that lmtil recently, the religj_ous :3ect to which the plaintiff 2./ . .... ( -- 2 - belonga:l ·was a bannrn religion and it ·was crilnin.~l to be1orrJ to t h:Ls s ect. It would be dangE?rOlJS j_f court were to rule a lawflil arrest 1.,1rxier a bad law i n our h_i_stor1 to be false _ imprisonment. t992 when the previous The plaintif f w3s relf. B.sa:J in Au:::rJst , re:3"i.me vBs under pressure to impruve its human rights record. I ,nsh to ITBke it clear tl:e t I am not implyir~J tbat a lawful a rrest could not in the end, in certain circumstances result in rl1bE~re are ca~;,35 on tllis point : ltlrLin f als~ i:rnpris onmen t. IE.chip~ 1:funtl:ali Vs. the Attorney Gereral ex::; 52 of t 993 j_s a case in point. Wbat I am putting across is that the plaiJ1tiff bas not shown any circumstances ·which would IIBJce it iJ1curnben t for this court t o view the plaintiff lawtul impris ornn.en t as ha \Ting become unlawful . I be.3_r j11 m:iJld that the plaintiff ·nBS in fact never taJ::en to Court arrl that had i.t not been for the pressure on IIBY have been indef uute. Be thi.s as it 1rr1y, my duty is not to IJBke out the In the absence of any evidence show:iJ1J cause plaintJ_ff I s case. why a lawful arrest becomes 1J:rllawful. I decline to amrd any daIIBges on t his hEBd. the Government imprisonment then, his On the question of asS3ult,, I am inclu1Erl to t;-Jke t he view that ncm of our statutes penni ts Po1ice officers or pr:ison 11Tc:1rc:1F:r3 to assault pris oners, not even the laws durin:3 the previous re:3"irne. I l l - trrntment, asS3ul t and star;}ation of pris oners never adorne:l I t i.s my view that :iJ1 thLs rnse, despite the our s tatute books . n3:1srnis foe his arrest _, the plau1ti.ft was siJ']J1e::l. out frn: and subjectErl to sys tematic iJ.1- treatment for the time ttet he vicis :iJ1 my view is ent itlE:rl to i n custcdy. He Sllffersl a lot arr:1 daooges for this. tlimk K1.5,,0lJO would adequately compensate him for the as x1ul t that he Sllf fer Erl. I -would On the question of loss of pni:tf :Lts, I t;.3J~e 1-11to accoln1t that this I would have was s-pecif ically plEBd13::l and JWgmE11t i;,rci.s e:ntetH:=l. taken issue with the vray the plrndings were put, but there was I am constrainErl from delvin:. J into that 1rr1tter. no defence here. 3/ '' ' ' ' ---- - .. --- - --- - 3 - It is enough in lliY view that the plainttff di.cl specifically plead the da:rr:B.ges and got a judgment in his favour: See NallI:lnba Vs. 'Iennet (J) arrl ~ Ltd. 10 111R p, 383, thus grant the I plaintiff K212,550 less 45% tax liability. I grant K116.902.5 as darrages on this hrnd . ·, I ,vish to mention here tbat the question of juri'.:diction in terms the 11El. Y 1994 l13.lawl Co:nstitution W<iS of Article 138(1) of considerErl. The sa.id article rm.els: 11No person shall j_nstitute proceaiings against any Goven1IDent in pov1er after- the cOJillllencement of this Constitution in respect of any alleJB::l criminal or civil liability of the Government of lialawi in power before the commencement of this Constitution arising from abuse of power or office, save by application first to the letional Compensation Trj.bunal, which sh:111 hear cases initiatB::l by persons with sufficient iJ1teres t 11 • I brnr in :min:::l In my view the present action could fall into the category of cases envisagB::l by this article of the Constitution. Be this as it rray. tba t Article 138 does not oust the 1urisdiction of this court as s1JCh but reserves the right to coIDIDence action first before the National Co:mpe11S3 tion Tribunal, thus wrmB or inappropriate choice of forum. couJ.q only be a defence to the defertiant but not a bar to plaint1ff 's action. In this case the defe:rrlant re:IIBins3 mute even after judgment was ent erB::l. As a cour-t I wouldn 1 t throw away the plE1intiff I s action on this ground. The defendant to pay cost for this action. P@JN01Il{C'ED IN C:FfI\llBERS this -- Blantyre. ..-,,9th day of December 1995~ at