Mbambo v Robray Ltd (Civil Cause 296 of 2015) [2018] MWHC 810 (19 July 2018)

.. The Judiciary IN THE HIGH COURT OF MALAWI MZUZU REGISTRY CIVIL CAUSE NUMBER 296 OF 2015 BETWEEN AUSTIN MBAMBO .................................................................................................... PLAINTIFF AND ROBRARY LIMITED ................................................................................................ DEFENDANT CORAM: B. SAMBO, ASSIST ANT REGISTRAR (Ag) Chinkhuntha, of counsel (on bri-ef) for the Plaintiff Mbulo, of counsel (on brief) for the Defendant Mr. H. Kachingwe, Clerk/Official Interpreter Sambo, AR ORDER ON ASSESSMENT OF DAMAGES FOR FALSE IMPRISONMENT 1. BACKGROUND The Plaintiff, Austin Mbambo commenced this action on 4th July, 2016 by way of writ of summons claiming damages for defamation, false imprisonment and costs of this action. The Plaintiff was an employee of the Defendant. The claim arose from the fact that on 7th July, 2015 the Defendant's servant/director, Venupopal Rao Badhrinath started accusing the Plaintiff of theft of servant. He was alleged to have stolen the sum of MKl, 966,473.82. On sth July, 2015, the Defendant's servant called the police to the Defendant's shop where he told them that the Plaintiff had stolen the alleged sum of money. Upon that allegation, the police arrested the Plaintiff and detained him in police cells. Later he was released on police bail, after spending 5 hours in police custody. Afterwards, the police conducted their investigations and found out that the Plaintiff was not involved in the alleged theft and, consequently set him free. The matter was before Hon. Justice Dr. C. J. Kachale. In closing, he found that the Plaintiffs claim for false imprisonment had been, successfully proved and he awarded him damages to be assessed by this court. The action for defamation did not succeed for lack of appropriate proof and was thus dismissed. This assessment, therefore, is only with respect to the action of false imprisonment. 2. ISSUE Basically, the hearing was conducted to assess the quantum of damages payable for false imprisonment. 3. DETERMINATION The plaintiff told court that he felt humiliated and embarrassed as he had not committed the larceny at his work place, and that to be put in a police cell for an o_f.f_ence he had not committed was quite heartrending. He also said that he was subjected to police surveillance in that he had to report for police bail on regular occasions until he got declared free. To begin with, assessment of damages is left to the court's discretion. See A. E. Kagwale v Attorney General Civil Cause NO. 529 OF 2007. And 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. See A. E. Kagwale v Attorney General (Above-cited). Damages for false imprisonment are generally awarded for the non-pecuniary 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 plaintiff's health. (See McGregor on Damages 16th Edition para. 1850-51). Damages for false imprisonment however need not be made exclusively on consideration of the time factor. See Fernando Mateyu v. Atupefe Haulage Ltd Civil Cause NO. 906 of 1993 (unreported). In Donald Ngulube v. Attorney General civil cause No 1569 of 1993 Mwaungulu Registrar as he then was had this ====::='::l:~o~S~aY:c' ================================= "In relation to time I would say that longer imprisonment, in the absence of alternative circumstances, should attract heavier awards, shorter imprisonment in the absence of aggravating circumstances should attract lighter awards. What should be avoided at all costs is to come up with awards that reflect hourly, daily and monthly rates. Such an approach could result in absurdity with longer imprisonments and shorter imprisonments where there are assimilating or aggravating circumstances. The approach is to come up with different awards depending on whether the imprisonment is brief, short or very long etc. and subjecting this to other circumstances." So far, the facts remain that the Plaintiff was subjected to false imprisonment for 5 hours, only. I consider the imprisonment in this case brief and award the plaintiff the sum of Kl,350, 000 as damages. I also grant him costs for this action. I am fully aware that the Plaintiff still owes the Defendant the sum of MK255,000.00 being costs, and his counsel had asked the court to pend enforcement of the same by the Defendant until this assessment with a view of committing an off-set. His counsel had so prayed on the basis that he was without any income. I think time has come. What this means is that the Defendant, instead of paying MKl, 350,000.00, it will pay MKl,095, 000.00. Damages are payable within 7 days from today. Made in chambers today the 19th of July, 2018. 5