Mkandawire v AG (Civil Cause 1364 of 1993) [1994] MWHCCiv 11 (8 January 1994)

J / BETWEEN: IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 1364 OF 1993 CHARLES MKANDAWIRE ......... . . . . . . . . . . . . . . . . . PLAINTIFF THE ATTORNEY GENERAL . . . . . . . . . . . . . . . . . . . . . . . . DEFENDANT AND CORAM: D F MWAUNGULU, REGISTRAR Mwafulirwa, Counsel for the Plaintiff Mkandawire (Miss), Interpreter ORDER On the 15th of December, 1993 I awarded the plain tiff , Mr Mkandawir e , K72,000 general damages for false imprisonment and bat tery. This action was taken out of the 8th of October, 1 993 . It was against the Attorney General. def ault of notice of intention to defend. loc uroty judgment and damages had to be assessed. The n otice was served by post on thee Attorney General on the 24th of November, 1993. The Attorney General did not appear on the dat e of assessment of damages. wit ness c a lled. I made the order just mentioned. The action aros e as follows. The palintiff is a local director of Marie Sto pes International. He is based in the City of Blantyre. The defendant, the Attorney General, is sued under the Civil Pro dure ( Suits by or against Government and Public Offi cers) Act. Judgment was obtained in It was an in ter I heard the plaintiff, the only On the 22nd of May, 1992, the plaintiff was at hi s place of work when four police officers from Blantyre Police Station arre sted him. They found nothing. They did not tell th e pla intiff why he was arrested. The plaintiff was taken to Blantyre Police Station. He was later taken to his hou se where, in t he presence of his children and relations, the hous e was sea rched in vain. He was taken to Blantyre Police Stat ion and late r transferred to Chichiri Prison. At Chichiri Prison, the plaintiff was undressed. lite rally naked. The search was conducted in the open ridic ule a nd taunt of prison officials. He was put in 15 by 2 4 metres, shared among 200 remandees. He slept flo or. No blanket. 2/ .... He was to the a cell, o n t h e - 2 - The next day he had waterly porridge. He refuse d to take it. At lunch he had a meal of nsima and peas. The peas had weevils. On the 23rd May, 1993, he was called to an interrogation roo m because officials had arrived from Police Headqua rters. In the room, there were three people. The plaintiff knew two of the m by name: Saiwa and Nyirongo. The three, using fists and footkicks , pumelled the plaintiff for about one and half hours. One of the m retrieved a plier from his briefcase and clipped the plaintiff's genitals. The plaintiff was in great pain. He fell down and collapsed. After this torture, the plaintiff was taken to Blantyre Police Station, where the ordeal continued only that this time it was everybody at the Police St they could lay their hands on was a vehicle of torture. The plaint if f was there for a day. He went to Chichiri Prison where he stayed for three weeks before being taken to Zomba Prison. All t his time the plaintiff was not given blankets. on and everything On 12th June, 1993, the plaintiff was taken to Zomba Prison . He was searched. He had other problems apart from sleepi ng without a blanket. He was sick he was not attended to. His ce ll was near those waiting for death by hanging. He was at Zomba for five weeks. He was taken back to Chichiri. He was released on 24th July, 1992, after two months. Wh ile he was in Prison, he was not paid. He was paid in arrea rs when he came out of the prison. His family had considerab le problems when he was in prison. The plaintiff was not charged with any offence. The police apologised for the arrest and released him. It is following these events that the plaintiff took out this action. He claims general damages for false imprisonment and aggravated damages for battery and assult. Before I consider the quantity of damages I should comment on the pleadings , particularly the relief of aggravated damages. Munthali vs. The Attorney General Civil Cause Number 52 of 1993, I heard that the expression "aggravated damages", as opposed to In "aggravated damage", was wide enough to include exempary damage s. The distinction between "aggravated damage" and "aggravated damages" is not pedantic. import ant distinction between general damages damage s. Although damages, in the narrower s~·nse, are punitive the courts aim at compensation. Exemplary damages, however, are puniti ve. When awarding general damages, aggravation and mitiga tion are an aspect of compensation. Exemplary damages go beyond compensation. Lord Devlin said: In Rookes vs. Barnard (1964) A. C. 1129. It is based on the all and exemplary "Exemplary damages are essentially different from ordinary damages. The objective of damages in the 3/ .... - 3 - usual sense of the term is to compensate. The object of exe mpla r y damages is to punish and deter." La ter he continues as fol l ows: "Moreover, it is very well established that in cases where damag es are at large, the Jury (or Judge, if t h e award is left to him) can take into account mot ives a n d conducts of the defendant where the y a gg ravate t he injury done to the plaintiff." Fo r purpo s e s of pleading it is cardinal rule th at in the rule does not apply in surbo di nate High Court a claim for exe mplary or puniti v e damages must b e sp ecific a lly pleaded . Th e courts, Drane vs. Evangelou (1978) 2 All E. R. 437, bec ause, un like in the High Court where it is a requirement und er order 18 , rule 8 ( 3 ), no rule exists for surbodinate courts. While in Mun t h a li vs . The Attorney General, I held that the term " aggrava t ed damag e s " is wide enough to encompass exemp lary damages, I did no t si mulati o n or extension of words would bid for qualifi cation . If t he pl a intiff wants exe mpla r y damages, he must ask for t h e m prec isely. The plaintiff here claims damages on an "agg r a v ated fo oting." This should not be un derstood as a claim for exe mplary damages. exe mplary damage s. intend to open a floodgate so that any I wi l l , therefore, make no award f or At c ommon law damages for false imprisonment are at large. In Munth a li vs. The Attorney General I opined that, wh ere some deci sion s seem to relate awards in relation to time, the awards defy comparison . At least t h e Muntha l i case demostrat es that if ti me was a yardst i ck, given longer imprisonments, the awards wo uld border closer to absurdity . On the other hand, dis propor t ionate large awards would be justified for b rief per iods i f there are aggravating circumstances. Civi l Ca u s e Number 154 of 1988 per Mkandawire, J.; Ph iri and ot h e rs v s . Council of t h e University of Malawi Civil Cause Number 626 of 1992 per Tambala , J . ) Equally there coul d be ob viously similar cases where pari t y of awards may be l ogical. Ap art from t h ese permutations, awards for false impriso n ments, are at l a rge and left properly to a Judge or Jury, as the case may be, t o decide on the facts of the case. The cardinal ques tiion is whether the a ward adequately co mpensates the pla intiff . ( Juma vs . Gani Th e plaintiff here was in pr i son for no reason at all . Th e law r e quires arrest for purposes o f the criminal p rocess . Where t h e prisoner is arrested without warrant, he shou ld be brought t o Court wi thin twenty - four hours. The Court, which is inde pende nt, should decide on the further imprisonmen t of the priso ner. the c our t , an independent institution, the p ri soner's inca r ce r at ion is r e mote fro m t h e tortfeasers act becau se the If the prisoner is i n prison beca\1@;€ of th e order of 4/.. . . . - - Imprisonment by the co ur t c hai n of cuasation is broken . i ntr oduc es a new cause of action, malicious prosecu ti on , wh ich r elie ves t he tortfeaser and the po l ice of liability f or false i mpri sonment (Lock vs . Ashton (1848) 12 Q. B . 871) . Unt il t h e i nte rven ti on by the court, t h e tortfeaser and the pol ic eman have Th is was no p r o te c tion for an action for fa l se imprisonment . s u c ci nctl y dealt with i n Diamond v s . Minter (1941) 1 K. B. 656 . At pag e 6 74, Justi ce Cas se l s quoted Lord Justice I Sc ru tton i n Ha rnet t vs . Bond (19 24) 2 K. B . 517, 565: "But it appears t o me that when there comes in the chain the act of a person who is boun d b y law to decide a matter Judicially and I nd ependently, the consequence of his decisi on a re too remote from the original wrong which g ave him a chance to decide. " If o nly by ministerial act t he imprisonment con tin ues , it is unlawfu l unless it c an be justified on other groun ds . a wa rde d t he plaintiff K60 , 000 as damages for false impr isonme n t . Th i s , in my view, ad equately compensates the plaint i ff. I On t he claim for battery, 1 am going to award gen eral damage s on ly having decided that exemplary damages we re not p l e ade d. The plaintiff, h owever , wants me to consider the agg rava t io n . That aggravated or exemplary damages can be a wa rde d in assault by the police seems to have been d ec ided in Fl a vius vs . Commissioner of Metropolitan Pol r le ( 1982 ) 132 Ne w L . J . 5 32 . The plaintiff is entitled to damages for pai n and s u f fer in g . Pain refers to the sensation, what is fel t by the se nses . g rueli ng t orture. He was brutally assaulted twice . Hi s ge nita ls were clipped with a pair of pliers much to t h e a mus e men t of the tormenters . Suffer in g entails the mental angu i sh of the pain . p l a int if f was there for two months. When I t h e pe rs pe ctive that the plaintiff was guilty of noth in g kno wn t o agg rav at i ng circumstances . o f K12 ,000. l aw , the anguish is beyond description . The r e are In this case, the plaintiff was subjected to much The episode smacks sad ism. looked at from I would award the plaint iff the sum The t h e Th ere is no loss of earning s I n a ll, therefore, I award the plaintiff the sum of K72 ,000. Ma de in Chambers this 8th day of January 1994 a t Blanty r e . D F REGISTRAR OF COURT