Kampeni & Ors. v Electricity Supply Commission of Malawi (Civil Cause 255 of 1998) [2017] MWHC 131 (11 May 2017)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 255 OF 1998 BETWEEN: ARNOLD KAMPEN! AND 5 OTHERS PLAINTIFF -AND- ELECTRICITY SUPPLY COMMISSION OF MALAWI DEFENDANT CORAM: ANNELINE KANTHAMBI ASSISTANT REGISTRAR Mr .. Kamkwasi The Plaintiffs' Counsel Mr. L. Mickeus of Counsel for the Plaintiffs Mr Chibwe of Counsel for the Defendant Mrs. J. Chilimampunga Court Clerk ORDER ON ASSESSMENT OF DAMAGES The Background This is an order of assessment judgm ent delivered Kamwambe in which he ordered that ordinary and unfair dismissal. of the High Court in 2016. of damages for false imprisonment following on the 15th day of August 2016 by the honourable the Justice This matter came before me while sitting as Assistant Registrar damages be paid for false imprisonment because the plaintiffs judge did indicate Having gone through the entire judgment I did notice that on the outset the honourable dismissal had gone back to work after the imprisonment employment expired on the 20th August 1996. was not an issue.[see wrongful notice that on page 6, the court ordered ordinary unfair dismissal. that he would not deal with the issue of unfair had conceded damages for false imprisonment and I will only assess the damages as that the claim for I did also In view of this inconsistency, and only left after their contract He then surmised 5 on page 2]. However, were not dismissed that they paragraph dismissal as they of llPage pertain t matter is cleared u p. o false imprisonment and will disregard the unfair dismissal until and the The Evidence. The plaintiffs Arnold Chimpeni in a representative statement filed bundle of assessment and tendered it as part of his evidence. which contains a statement sworn by one capacity. Mr. Chimpeni adopted the said It is the plaintiffs' at Lim be Police station and later transferred to Chichiri remanded. assertion that they were incarcerated on the 6th of December 1996 Prison where they were further aver that at Limbe Police station they were held in a filthy tiny The plaintiffs cell infested with lice, mosquitoes habitual criminals in very humane That the floor and walls were smeared with human excreta. and bed bugs. That they were housed together with a toilet, conditions without sanitation and privacy. They further allege that the conditions at Chichiri congested with poor ventilation, and no chance to visit the toilet at night. poor diet, bed bugs, infested Prison were worse as it was with lice, lack of privacy They were released after spending 5 days in custody, and the police droppea. the charges for lack of evidence. They further averred that the defendant refused to re­ them. instate them even though there was no evidence or cause to prosecute he stated that he did not have the evidence In cross examination, stayed 5 days in custody and he did not have any evidence had stayed in was small and infested between the years 2000 and 2008 they had been coming to court but each time they came to court ESCOM lawyers to prove that he had to show that the room he with lice and other bugs. He also stated that were not showing up. In re-examination end of the plaintiff's submissions on the assessment. he stated that he spent 5 days in police custody. case. The defendants did not call any witnesses. That marked the But made written Issues The main issue to be decided is the quantum of damages payable to the Plaintiffs. The Law It is trite that in tort the general be put in the same position principle as before the tort. is that in awarding damages, a plaintiff is to Greener, W, put it this way in the case of Hall v Barclay [1937] AC 620@ 623: it is undoubted " in my judgment, begin in ascertaining plaintiff who is suffering far as money can do it, to be put in the same position wrong. This is what is referred how the damages should be ascertained. by a defendant from a wrong committed to as restitutio in integrum." fact that there are two rules with which we as if he has not suffered the The first is this: A so is entitled, 21Page It was stated damages in the tort of false in Mikombe and another v United Transport imprisonment are awarded for loss of liberty, (Mal) Ltd 1992] 15 MLR that humiliation and mental suffering. trar, in t Mwaungulu, then sitting as Regis quoting an earlier ruling he had made stated that he case of Mulenga v M wale 1991 (14) MLR @ humiliation "the indignity, what the court endeavours these. Admittedly injury but it is not what although it is a relevant the time spent under such and stigmatization to compensate. upon imprisonment consequent is No monetary value can be tagged to aggravates restraint and it cannot be the basis of the award is compensated consideration." or mitigates the but in this case it is only looked in non-monetary for loss of liberty Time is relevant terms (per Mbalame J in Mwakalinga In common law countries, 1984(Unreported). Thus time being one of the considerations the imprisonment though the period of incarceration might be so outrageous is short. v Tratsel Supplies damages under this head are at large. Ltd Civil Cause Number 403 of cannot be a yardstick. The circumstances of that high awards have to be made even According to McGregor on Damages, "the details on how damages are worked out in false imprisonment generally much to the jury's or judge's discretion." are few; and the like, and is left loss but a loss of dignity it is not a pecuniary In Mabvuto Delo v The Attorney General the court noted that the courts have to avoid coming up with awards that reflect hourly, false imprisonment imprisonment circumstances daily, and monthly rates in damages for on whether the this to other was brief, short or very long and subjecting but come up with different awards depending ... " Chirwa J, in Kamlepo Kalua v Attorney the view point taken by Mwaungulu J in Bulla v Agricultural Marketing on the award of damages for false imprisonment [1993] 16 (1) MLR 30 @ 34 & 35, who after reviewing summed up the law as follows: General [2013] MLR @pp. 130 & 131 quoted and Development cases several decided case. In certain cases, should really be left to the court to determine of the case, including "in my view there is more support of the view point that damages to be awarded after taking for false imprisonment into account all the circumstances time. The problems that arise when time becomes the sole basis of the award is that such an approach is likely to ignore circumstances, both aggravation attend a particular be more pertinent imprisonment do more damage to the plaintiff otherwise because damages for false imprisonment which in some way can be related to time, but also for loss of reputation status which are not related to the Court to decide the quantum in the circumstances of damages than time, for obviously circumstances innocuous and harmless circumstances. and should be to leave it to time. The approach therefore, are an award not only for loss of liberty, the circumstances even for a short time may than a protracted and mitigation, to the quantum of the arrest might in horrendous or elongated and horrible of the case." which may imprisonment in This is understandable, 3IPage Further, the l earned authors of Mc 1357 have this t o say on computation of damages f Gregor on Damages, 14th e isonment: or false impr dition at paragraph awarded in these cases: no breakdown This will be included in the general appears in of how damages are worked out in false imprisonment are few: and is left much to the loss but a loss of dignity that is the loss of time considered suffering, heads of damages would appear to be from a non­ primarily disgrace and humiliation, view point discretion. The principle it is not a pecuniary and injury to feelings, loss of social status. " the details generally jury's or judge's injury to liberty, pecuniary with any attendant damages which are usually the cases supplied. In addition, discomfort, health. Addington, in his health from the imprisonment damage. Also, damages may be given for Lawrence affect This is illustrated a man's liberty; it also affects there may be recovery for any resultant as where the imprisonment effect has a deleterious injury, illness on the plaintiff's physical or where the only reason that the plaintiff failed was that he failed to recover to plead it as a special by the old cases, Lowden v Godrick and Pettit v for a decline LJ said in Walter v Alltools, his reputation. ' ' a false imprisonm any injury to reputation, ent does not merely for as Further any pecuniary loss which is not too remote is recoverable." persons arrived of the airest on page 4 of the judgment, The Finding: Coming to the present matter, the Court already made a finding as to the that is, when each of the circumstances suspected by the Chief Security surveillance they were not allowed to leave or go anywhere and From there they were taken by the defendant's vehicle the hands of the police. showed that that they were guarded with guns. to police wher.e they were left in Officer and his guards and kept at the gate under the in the morning for work, immediately of the guards until all the plaintiffs were arrested. Evidence he was apprehended It is not in dispute that the plaintiffs resultant or physical injuries physical illness sustained. were released after 5 days. There were no the same. Although Both counsels for the plaintiff with on the quantum the court could consider considered of the cases to be considered amount of time spent in custody, any submission, awarded K6 million to each of the plaintiffs but provided majorly centered therein. while the plaintiffs and the defendants endeavoured to supply the court and I have duly taken note of and I should mention here that the defendant's submission on the amounts awarded for the on the other hand, did not make to the court only one case in which the deputy registrar I have duly taken note and considered I also took note of the case of Rashid Nembo in which the circumstances taken into account as per the authorities which the 16th February which the court observed of the cell in was made for K2, 500, 000.00 on borne in mind the Kamlepo Kalua case, supra in was kept in a cell with conditions lived for 2009. I have also cited above were the horrible 19 days, and an award the case law provided that the applicant by both learned conditions plaintiffs similar' counsels. 41Page to those of Rashid Nembo, only for a longer period of 3 months and 10 days, and an award was made of K6, 5 00, 000.00 in 2013, having considered the devaluations that had taken place in Malawi sin ce 2009. in the cells were not homely, I cannot help but wonder if the description bed bugs together with habitual According to the plaintiffs herein, they stayed in tiny cells infested with lice, mosquitoes, That the floors and walls were smeared with human excreta. While I do not doubt that the conditions was really as it is as no any other proof of the conditions but notice that the same description Kalua stated above. Nevertheless, similarly a much shorter period of 5 days than the cases above. obtains I also take note that the plaintiffs in the case of Rashid Nembo and Kamlepo them mental anguish and discomfort, were kept in in was supplied. I cannot help criminals without deplorable conditions, sanitation causing and privacy. albeit was detained The plaintiffs in the case of Chrispin K300, 000.00 on 24th May 2011 for false imprisonment. for 7 days and he was awarded K700, 000.00 on 25th August Kaledzera, George Civil detained for 40 days and the court awarded each of In the case of Lightwell Mphulama v Attorney General CC 1970 of 2008 (Unreported), the plaintiff 2011 for false imprisonment. Mwase, Sande Mkwamba v The Attorney General High Court Principal Registry, Cause Number 2578 of 2009were the plaintiffs Kanyoza and Nesta Ngwenya v ESCOM Limited, the plaintiffs imprisonment, award was made on the 12th June 2015. In a more recent case of Civil Cause Number 4 of 2016, the plaintiffs released only to be detciined again from the 12th of June to the 19th of June 2015. On claiming the plaintiffs were awarded K800, 000.00 on 23rd February In Medson being Civil Cause Number 541 of 2012, were awarded KlOO, 000.00 and K80, 000.00 respectively for false The their detention having lasted 33 hours and 25 hours respectively. were detained On the 11th June 2015 from 7pm to 10pm and damages for false imprisonment, 2017. Therefore considering the sum of Kl, 000, 000.00 for each of the plaintiffs the plaintiffs for being falsely imprisoned. factors as discussed above, I am of the view that of adequatelyc9mp all the relevant ensateseach Made in Chamber this 11th day of May in the year 201 7. A. Kan� Assistant Registrar SI Page