Juma v Gani (Civil Case 154 of 1988) [1992] MWHC 55 (10 November 1992)

| IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 154 OF 1988 BETWEEN: Beit TUR. cess sw sso Oy ot Sane Tene bake Fees oe 2 hee ee - and - ATAFF GANI.....cccsecccceseascvcasecesscoccccccs eo oDEFENDANT > CORAM: MKANDAWIRE, J. 7 Mhone, of Counsel, for the Plaintiff Maulidi, of Counsel, for the Defendant Gausi (Mrs), Court Reporter Manondo (iirs), Court Clerk JUDGEMENT. The olaintiff in this case is claiming camages for wrongful imprisonment. The defendant Genies liability. The plaintiff is an employee of Chancelicr College, whilst the defendant is a businessman in the Municipality of Zomba. The facts of the case, which are not seriously in Gispute, appear to be these. On 19th December 1987, which was a Sunday, the plaintiff was going to his place of work. On the way he met one Elton Chauluka. The latter wes also going to Chancellor Cellege to make a phone call so as to pass on a funeral message to some relatives. According to the evidence, the two had not known each other before. When they came to a certain residential area, they saw a white pick-up. The plaintiff's and Chauluka‘s story is that Chaviluka Gid not run away when they saw the pick-up, but just walked ahead. The defendant's version is that Chauluka ran away. On this point, I prefer the dGefencant's story that Chavluka ran away. When Chauvluka ran away, the Gefencdant told the plaintiff that he, Chauluka, had stolen his main switch and that was why he was running away. The plaintiff was surprised to hear that, but it is not ciear why the defendant had offered that explanation. The Plaintiff then walked on and found Chauluka. On his part, the defendant went to his house and got his men with the express intention of arresting Chauluka for alleged theft of the main switch. Armed with his men, the defendant got on the pick-up and followed Chauluka whe was with the plaintiff. He found them and then blocked their way. The defendant tolé Chauluka that he was taking him to the Police Station for the alleged theft of a main switch. Chauluka romrenmers then pleaced that he should first be allowed to go and relay the funeral message at Chancellor College before being taken to the Pclice. The cefencant went on to say that the plaintiff said Chauluka was going to ring from his office anc if he ran away he, the plaintiff, would be responsindle. The cefendant then felt sympathetic and allowed Chauluka to ge anc phone. The nlaintiff's version on the point is that Chauluka made the pleading on his own. He Cid not say Chauluka was going te ring from his office and he made no uncertaking that he would ensure that Chauluka did net run away. On this point, I prefer the evidence of the plaintiff that he dic not plead with the defendant to allow Chauluka to go anc phone. Further, I find that he id net make any undertaking that Chauluka would not run away. Surely, if the arrangement was that Chauluka was going to phone from the plaintiff's office, then the two should have left together to go to the plaintiff's office to make the phone cali. But it as it were, Cheuluka left alone tc go and phone, leaving the plaintiff behind. they all jumped into the pick-up and went to Chancellor College. They parked next to Malawi Book Service shop. I think that what happened thereafter is important. Accorcing to the plaintiff, he Gisembarked and starteé€ to walk towerds his office. The defendant enc his men also GisembarkeG and followed Chauluka to where he was going to make the phone call. But before he reached his office, the plaintiff was surprised that the defencant and his men grabbed him, lifted him and Gumpec him into the pick-up. He resisted, but he was overpowered. He was taken to Zomba Police Station. The defendant's explanation was that he was arresting him because his friend Chauluka hac ran way. At the Police Station the defendant told the Police to keep the plaintiff in custody until Chauluka was arrested. The plaintiff went on to say that the defendant was orcering the Police as if that was his own office. The Police did not interrogate him, but just put him in custocy. He was locked up et arounc 2.00 pm and released the following cay at 9.30 am . According to the cCefendant, this is what happened after oarking at Malawi Book Service shop. As soon as the venicle stopped, Chauluka jJumeed off. The plaintiff emainead at the vehicle anc the defendant asked him why his frienc hac jumped eff. The defendant insisted that Chauluka was running away, but the pleintiff said he was only gcing te his (the plaintiff's) office to vhone. Thereafter, the Gefendant, the plaintiff and the defenéant's cook followed Chauluka. but then they saw him running eway. At that point the oleintiff also started to run away, but the defendant instructec his men to get hole of him. The plaintiff resistec, but they crabbed him ane put him in the vehicle and took him to Police. The defendant told the Police that he nad arrested the plaintiff because he nec allowed his friend te run away. Having outlined the plaintiff's and the defendant's evicence up to the point of arrest, I think it would be proper if I Geal with the evidence of the Police Officer, PW3, separately. Detective Constable Ndingo, PW3, testified that he reported for duties at 7.30 am on 20th December 1°87. He was taking over from a colleague and there was handover. Detective Constasle Ndingo was taking over nermal duties including cecords and persons in cell. Part of the hand- over exercise was a briefing on the arrest of the plaintiff. His colleague xplained that the plaintiff was arrested because his frienc had ran away and that he should remain in custeacy until that friend was apprehended. No doubt, this part cf PW3's evicence was hearsay and I attach no weight to it. However, as a result cf what his colleacue hac told him, PH3 checked in the records and found that no complaint hac been filec egainst the plaintiff. All that was written in the xegister was that he was brought in by Gani, but no complaint. PW3 found this strance se he went and explained the matter to his boss, whe orderec that the plaintiff be releesec& immediately. So the plaintiff was releasec and that was about 9.30 am. PN3 went on to say that after some months, the Cefencdant approached anc told him that the plaintiff had sued him for unlawful arrest. The Gefendant offerec to pay K3,000,00 if PW3 assisteG him in the matter. The witness's reply was that since there was no file anc no complaint on the plaintiff, nothing could be cone. Then the witness was postea away. PW3 concluded his evidence by saying that he was appreached »y the defendant, who wanted to have a chat with him before giving his evicence, but such meeting dic not take place. in cross-examination, the witness maintained that no formal complaint was made against the plaintiff. He said that although the plaintiff's name was in the register, there was no complaint and that the Gefendant hac not made any statement. PW3 then invited both the cefencant and Chauluka, but the defendant did not report at the Police Station. the cefendant only made a complaint against Cheuluka after the plaintif had instituted these proceedings. Mr Maulici submitted that since Chauluka was a felon, ana the plaintifi hac facilitec the escape of a felon, the Gefencant was justifiead in arresting the ovlaintiff. According to Mr Maulici, the plaintiff was quilty of the offence of being an accessory after the fact. It was aiso Mr taulidi's submissicn that under section 33 of the Criminal Procecure and Evidence Code the Gefendant was entitiead to arrest the plaintiff as he reasonably suspected that the plaintiff had committed a felony, to wit, accessary after the fact of theft. The initial Bs crest having been justifiable, whatever happened at the Police Station was the responsibility of the Polic On the other hand, Nr Mhone submitted that there were no r¢eesonacle grounds te suspect that the plaintiff had rencderea assistance to Chauluka so as tc make the arrest lawful under section 233 cf the Criminal Procedur ana Evicence Code, It was further supmittec that as a matter of fact tne olaintiff Cid not in any way facilitate the escape ef Chaulukea. The defendant saw Chauluke running away, but he mace no attempt to pursue him. Instead, he arrestec the plaintiff whe was entirely innocent. It was submitted that it was the cefendant who directed the Police to keep the plaintiff until Chauluka was founc. It is not in dispute that the defendant arrestea the Olaeineitt. I fine such arrest to have commencec at Chancellor Coilege and net at the point where the plaintiff jumped into the pick-up, as there is evidence tc show that he voluntarily went into the vehicle. The cuestion is, was such arrest anc subsequent detention at the Police Station lawfui? Mr Maulidi seught te show that the cefendant was justifiec in so arresting the plaintiff, because the latter had ceommittec an earrestable cffence, to wit, being an accessary te, the fact of theft. The defendant's case is that the plaintiff facilitated Chauluka's escape, in that when the cefendant had found Chauluka and the plaintiff on the way enc the defendant wanted to take Chauluka to Police. the sleintiff pleaded with the cGefendant that Chauluka be allowed te proceed to Chancellor Coilege to relay a funeral messace on the phone. It is said the plaintiff told the Gefencent that Chauluka would phone Efrem his (the plaintiffts) office. I wish to cbserve that if what the Gefendant told the Court is true, that Chauluka was going to phone from the plaintiff's office, then cne woulcd hrave expected that when the vehicle veached Chancellor College Chauluka anc the plaintiff would go together, especially that that was a Sunday when offices are normally locked. As it happenec, they did not go together. What happenec., and this is net in dispute, is that Chauluka went alone to. make the chone cell and the plaintiff remained behinc. On the evidence before this Court, I find it as a fact that the plaintiff cic not say that Chauluke would ohnone from Ais office. I alse fine that the plaintiff cid not uncertake to be responsible if Chauluka escapec. There was no neec fer the plaintiff to make such an undertakina, since Chauluka was alreacy with the dcefencant. Tf the cefendant wanted to ensure that Chauluka dic net escape, he or one of his men would have accompanied him to the phone. Chauluka was left alone ancé now the céfendant says the plaeinti ns assisted him. I fine this te be riciculous. When the Gefencant and his team saw Chauluka running away, they arrested the plaintiff insteac cf chasing Chauluka. One of the Gefencant's men, Taubu. DH2, said that when Chauluka was running eway, the Slaintiff also started to run away anc took off his shoes. z find this to be highly inconceivable. T£ it is true that the vlaintif£ was running away, where did he finda the time to take off his shoes? I find that the plaintiff was not running away. He was only walking te his office when the Gefendant and his men grabbed him anc& threw him into the pick-up. As I have already said, there was no justification for the arrest. When the defendant saw the plaintiff anc Chavlukea walking together, he thought they were friends. But even if they were friends, would that, witheut more, xe sufficient reason for arrestfng the plaintiff? GE course not. It appears to me that the cCefencdant arrestec the plaintiff as a “hostage” to secure the surrender of Chauluka. The evidence of Detective Constable Ncdingo was that when he was taking ever from his colleague, part of the hand-over briefing was that the plaintiff was arrested because his colleague had ran away anc that he should ke kept in custody until that colleague was arrested. Detective Consteble Ndince then checked in the records ana founc that no fornal complaint had been filed against the plaintifi. He then reported to his boss, who orderec immeciate release. The defendant had not made any statement at the Police and when Detective Constable Ndingo invited the defencant to the Police Station, he Gic not go. When the defendant realised that the matter was getting sour, he attempted to bribe the Police Officer. Mr Maulidi submitted that the evidence of Detective Constable Ndinge was hearsay and shoulc be Gisregarcecd. I agree that certain aspects of his evidence was hearsay, but the nand-over briefing and his findings in the recorcs cannot be hearsay. The hané-over briefing that the plaintiff be kept until Chauluka was arrested ties up with what the plaintiff teld the Court, that the cefencant Girecteé the Police to lock him up as if.the Police Station was his own office. I observeé the cefendant and I got the 0 ¢& A impression that he is capable of cCoing just that. I, therefere, find that the plaintiff was detained in custody on the directions of the Gefencant. I now come to the question of damages. The plaintiff had been cerrived of his liberty for 20 hours and 3 minutes. It has been said time and again thet a person's liberty is @ very precicus thing and it shoulc not be 2 ® OF interfered with without any justification whatsoever. In the case of Waters -v~ 8 H Smith & Son Ltd (1914) 1 KB 595. Sir Rufis Isaacs, CJ, observed as follows at page 602: - "Interference with the liberty of the subject, and especially interference by a private person has ever been most Jealously guardead Sy the common iaw cf the ta 4 rs] Lana .* In the case of Sindi -v- V D Ross & Co, Civil Cause No. 128 of 1982, the plaintiff was falsely imprisoned for 45 minutes and he was awarded K700.00. In Wasili -v- Clan Transport Ltd, Civil Cause No. 506 of 1981, the plaintiff was awarded. K1,000.00 for a period of 3 hours. While in the case of Stambuli ~v- ADMARC, Civil Cause No. 550 of 1991, an award of K4,006.0 was mace for a period of 3 cays. Perhaps I shoulda also mention the case of § J Mwakalinga -v- Tratsel Supplies Ltd, Civil Cause No. 403 of 1984, in which the slaintiff was falsely imprisoned for 22 Gays and he was awarded K10,000.00. Incéeed, there is no such thing as aritnmetical progression in the awaré of Gamages. Each case must be considereG on its own facts while decideca cases can only be usec as a guideline. In the case before me the defencant's conduct was outrageous in the extreme. The defendant and his team went ovt on what I may call a man-hunt to arrest Chauluka. Tney found Chavluka all right and the Gefendant sympathisec with him ana allowed him to go anc relay a funeral message on the phone. They saw Chauluka running away, but instead of chasing him they arrestec the plaintiff. The Gefendant knew where Chauluka was staying and if he was a man who respected the law, all he would have done was to go and report to the Police, Insteed, he took the plaintiff “hostage” simply because he wes in the company of Chauluka. He then Girectec the Police to keep the plaintiff until Cheuluka was arrested. This, in my view, was total and wanton disregard of human liberty and dignity. Then comes the mode of arrest. The defendant's men grabbed the plaintiff, carried and dumped him into the vehicle as if they were Gealing with a bag of maize. Putting all these facts together, I think that this is a case in which aggravated Camages are called Sor. The case of Rookes -v- Bernarc (1964) AC 1129 consicgerea at length the circumstances in which aggravated Gamages may be awarded. Put simply, aggravated Gamages may be imposed in a case where the conduct of the defendant aggcavates the injury cone to the plaintiff. I am satisfied that the menner in which the defendant committed the wrong was such as to injure the plaintiff's proper feelings of dignity and pride. Indeed, the plaintiff wes subjectec to mental injucy, disgrace ana gross humiliation. The manner of arrest, no Goubt, aggravated the plaintiff's injury ana suffering. In the circumstances, I think that Kid ,0C0.c0 would be adequate compensation and I so order. The Gefendant is condemned in costs. PRONOUNCED in open Court this 10th day of November 1992, at Blantyre.