Nyondo v Attorney General (Civil Cause 1483 of 1992) [1993] MWHCCiv 28 (19 May 1993)

I N THE HIGH COURT OF Ml\Ll\Wl PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 148 3 OF 1992 CATflER I NE NYONUO P L AI N'I'I FF and THE ATTOPNEY GENERAL DEF ENDANT MWAUNGULU, REG I STRAR Bazuka Mhango , Counsel for the Plaintiff 0 R D E R t h is act ion c 1 aiming general and exemplary d a mages ' ,,(; 'rt :~, ro~t he 9th of Decembec, 1992, the plaintiff, Mrs. Nyo n do, t.9:oi,if ou t f .0 '.r:,~,fal s e ,··'•,, n6tice o f intenti o n to defend on t h e 6th of January, 1 993. ~ l~W!:l S an interloc utory judgment for damages to be a s sessed. ,.,, · ·'' -.~· s ;sifssme nt of damages was first set down for 14th Janu ary, 9,9 •j :. The defendant did not appear. The notice was ·· ~urn e d to the 22nd of January 1993. On this date the ~Judgme nt was obtained i n de f a u lt of imprj_sonment. ·, •:\','' 'f"~p\;.,. ¼- r wa s adjourned to 16 th March 1993. The de fe nd a n t did pp e a r. I de c ided to proceed with the assessmen t. on • · March 19 93 , because I did not have time on the 1 6th of .,,h. > wa s e mployed as a copy typist at the c i al Bank,L i vingstone Avenue branch. She is ma rried s children. Her husband lives in South Africa . Her d , Afr ica about th e head of state. it. is alleged , mak es di srespectful statemen t s in ' . _· :'.)-1e l 7t h of Jun e , 19 9 2 , three Senior Pol ice o f fic ers l hc ba nk. She was taken Lo her ho u se in Tl1 c y, however, Look h e r and her kid s ' She wa s Loken Lo Lhe Southern Region Po l ice i n 'i£f , .~t ed her f r om i'.,ng wan gw a . Hee h o u,~ c was searched . The Police did n ot -~n il an y t hing. ~$ ~po r t s . eadqua r ters and Jalcr to Ch il omoni Polic e . ·o'l t c e c u s to d y f o r n i n I y - l h cc c d i1 y s , up to l 8th of e pt ember, 1992. App ~r cnLly she was released on an o r der by · J6 dg e of th e Hi gh Co ur t following an application o n her e h p lf u nder the Statut e Law . ",~~ (i h·e fi pol i ce told h e r that there was nothing wrong tha t she ad f don e personally save that her husband was insult i n g the ~ e ~ ide nt in Sou t h Africa . (M iscella n eous provisio n s) Act . She was t 2/ . . .. . ' .. ;-,'• ·. r':., , ~ .,. , •:t rt --·"' .. ~ ···.;,.; ... _,.._ . ,r, ' ' I , l ~J I rij ,, ·:· t ·:(f - 2 - , .: ~Wen the P olice a r res l ed h er , h er b aby W. J s s uc:k i n g. Tll e l ost her job at the Comme rcial Bank. i by beca me vc1: y s ick. All h er childr e n did no t h ave ~,'::I 11;;yb ody to look a f ter t h e m. On accoun t of th is dcLcnt jo n l '!le <t: l"; ~t ·,~~ .. r7_h_,,e n b e l n g re l e as e d th c pol J cc t. o ld h e r . tfse aqai ns t h er . , f'°~ b ancl . She h ad b een arrested beca u se of h er Sh e was to ld to leav e t hat t h c re w a s no . . ~.:;h 'U'$ b and n ever ,t o rc-turn . ,,. , ~1~~ -- - released t i ll after seve n days o f ~r er of t h e c o u r t S h e was rel eased b e c: a u se o r t h e c:oun try a nd join hc•r ,111 Sh e wa s to have h er released fort hw ith . t h or d e r. 'F. U.''ft -M(k Mh ango c:la ims f or h.i. s clie nt. general damages for f alse · ':d:mpr i so n me n t a n d cxc mpl ary darnaq es f or the rig h L. days o r so . , .. whin _ t:he polirc , · ~pelisJ. S LC'd Lo clC' t ,11 11 lllC' pL11nl1 lf. ,._f o ,,.., h c r L o c: l z1 i m c- x c rn p 1. ci r y d ci ma g e s .. r..im1;:1ri so nm c nt. b cc:ci u sc: th e arrest of t h e pl.ai.nt..iff for Lh c 111 clefi ,1nc0 o r _t h e orclC' ,- o r Lh e_c:uu,- 1, r c s µ C' c L. o f LI 1 c w Ji o 1 c~ ln 111 y v 1r:'w , 1 l w, 1s o p r• n .i n re ~ s o n s g i v e n d c r i c s r c z1 s on o n d s e n s i. b . i. l i L i c s . -::,, One_ mu st s tar t from the premise that at c:o mmon law a ma n ' s ~ rig ht to freed o m of move me n t without imp edi ment was recpgnised . To unlawfully and wi t h o ut reaso n to restr a in, ; det ain or imprison a ma n so as to pr e v e nt him from going \'~ ;· abo ut his bu siness was a n actionable wr ong for wh ic h th e .- cou,rt s compen sated in damages . In the public interest, •·. how.ever, the l aw perrni t ted i rnpr i sonme nt where there was To r l t ~e . Cri me was and is consid e r ed a wr o ng again st To arrest wher e a citizen h as no t t he public in t er est that the arr e st s . ' ¥e tyb ody . All cit i ze n s agree t hat for t hat. pu rpose al o n e '.'.i t;' 1s in their in t~ercst to r estrain a man ' s fr eedom . : tha t e n d any citizen c:an arrest . Otherw ise publi c offic ers '·'a;~e ! entrusted with the ge n e ral power to arrest. f o r er ime . ~~ is, ho wev er also i n N~fio uld not b e arbitrary more so when su c h a rr ests are by ~6b ti c of fic ers . dOmmitt e d any o f[enc: c or where there is n o reasonabl e s4s ic ion of an offenc:e being committed by him is arbit r ary 1~an_d gr oss a bu se of lhe power to arrest. To arr est and iripi;" i son a man who has n o t committ e d an offe nce for an offen ce c l early c:o mm itted by anot h er is immo r a l and ~~c 6 n sciounable . as p'olic e me n, th e courts s hould award exe mplary or agg1avatcd d a mage s if o n ly to se nd signal t ha t ~9t ~c ondo n e bl a l a nL a nd prof l igate d isregard by governm e n L ser ~ an ts of t h e right of a c: i tize n to free mov e me n t this reason ex e mplary da mages h ave b een awarded for wan Lo m condu ct by g overnme n t serva nt s . vs. Bar nard (1964)A . C . 11 29 , 12 26 . damag es i n this c:a sc. ,.. ~ ... , ' ' ,. ,-· 1 Now ~ t i s s u b mjLLcd by Mr. Mhango that t h e court i n awa r din g dam ages for fal s e impriso nm e n t is guided by awards that h ave bee ~ awarded in d e cide d c:ases . law. nders tood th is to b e · ···st h as been ac:c:cpl cd Lo b e I hav e n ever known or In p ersonal i n j u ry case s i s don e by public: officers, s u c h (per Lord Devlin in Roo k cs I wi l l a ward exe mpla ry A co n ve n Lion al the law w ill t h e n or m. If t ha t t h e Fo r . ~1 • ( 3/ .. t t t ~. a.: . 4,f~,~© ·ti- ~' :.;,de~£ .. 'ff ·i:,· , ft' ·,,f ison ment C(?mp e ns.:1tc - . For false. irnpr_isonrnent cour ts seek ijroach bas ed on deci d ed cases i s untenable for fal se • ison ment because of th e na t ure of what damages fo r false - 3 - j ~ omp e nsatc to r s uch th1nqs as J_nJury Lo f ee ling s a n d ,t{]:tle caused by the humiLiat: ion of imprisonment , lo s s of ;~·nf~ , not in a monctory sense as well as loss of lib erty. Tb~l, circumstanccs of ti1e imprisonment arc so variega ted as ·'•r ,•J$:• tO:)f.defy any conven U onal approach based on pr evio us q~~}f sions. Th e precario usn ess of the injury so ught to be cqmp ensated mec:ns that t he amount of damages is real ly in t9ef di sc retion o f the jury or judge as the case may b e. TQ1ts approach i s co n f irmed by the author s of McGreg o r on Daf(l;a g e s , 14th Ed. 1980, paragraph 1357: Xi>i{ - ,;-;~,~:i- ·~f~ '".~~•.,-~\ ·\t ;,{ Ill u c I, l. o L h c j u r y ' s o r l oss of dign_ity and t he Jikc, '!'li e p 1· inr:ipal head s oE damcig e would "Th e detai l s o f how the damag es ar e worked out in false impr i so nme nt are few : g enera lly it is not a pecuniary l oss but a I C' f I ,1 n d I s disc1·c1 ion . appear to be the injury to lib erty , 1. e. t h e loss of time considered primari l y from a non-p ec u niary view point and t h e injury to feelings , i.e. the indignity, me nt al s uff e ring, disgrace a nd humi liat i on with atte ndant l oss of socia l status. Thi s wi Jl al l be included i n the general d a mages which arc u s ually awarded i n these cases. No breakdowns appears in the cases. " :i u d CJ c ' s Damage s for false impriso nme nt are, therefore, purel y in the dis c r et i o n of the jury or judge. Recourse cannot be had to aw~rds i n prev i ous cases . st·~.} ~r ., Mhango further submits that on the basis of earl ier ~~~mission a da i ly rate has been established from ca ses such ~s Chintendere vs. Buroughs Limited, Civil Cause numb er 530 of J 981, ADMARC vs . Sta mbuli, MSCA Ci v. Ap p. No. 6 of 1984 a n d f Banda vs. Southern Bottl ers , Civ i l Cause number 41 of :J 9 8) . i e ~rJier damages for false imprisonment are purely in t h e f Ais cretion of th e jury or judge. A judg e or jury n e e d n ot ~ ;loo~ at previous awards . Moreover a review of the ca ses in .'. I have reviewed these cases before. As I poin ted out f irmly -- ~,h e , Hi gh Court and Supre me Court of App eal does no t 1~ho~ that the awards were awarded in relation to time . Of ' c 'ou·,t se a few case s seem to espouse t his no tion . Th e y were ~ a sf d on a der: i si o n where damages were not awarded in "re l ation to Lime . . ,1i11 - "tr" t ·Dam~ges for false impriso nme nt are therefore, in th e discretion of the court. •additional far:tors to r:onsider are the conduct of th e go v ~rnrnent servants , to wit the police. .~ ha£ th e plaint if f , ass uming her husband had committ ed an offence, could never have been punished for h er husban d's I think that in this case th e It is quit e obvious ' .! ;,~ There wa s no suggestion that the plaintiff wa s party 4/ .... . - 4 - to her husband ' s criminal acts if any . for purposes of disclosing information about her husban d it If th e arrest was j u si ifi e d . If it was to use her as a pawn or bai t 1~ is qnfortunate . f a g a fnst her husband , it is sad . Where it was clear th at she ?• was ( not guilty of any offence her i mprisonment cannot be : i;, n·ot · rel e ase e v e n after a court order. There is the very ~ deg redation of imprisonment . :i gen eral a nd e x e mplary damag e s . t•l ' ~ The par ti es ar e informed t hat this court l S not th e Th e re is mor e contumely where the police c ould I award her K40 , 000 for l ast. in Chamb e rs this 19th day of May , 1993 . t~ l IJ..lU I. D F Mwau REGI S TRAR OF (fl-IE HIGH COURT