Charles Mushitu and Anor v Attorney General (APPEAL NO. 62/2017) [2018] ZMCA 620 (27 April 2018)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL NO. 62/2017 BETWEEN: CHARLES MUSHITU SYDNEY CHITUTA AND 2 7 APR 2018 1 ST APPELLANT 2ND APELLANT THE ATTORNEY GENERAL RESPONDENT CORAM: CHISANGA JP, CHISHIMBA, KONDO LO SC, JJA On 11 th September, 201 7 and 27th April, 2018 For the Appellants For the Appellants : In Person : Mrs D. Shamabobo, State Advocate, Attorney General 's Chambers JUDGMENT Kondolo SC, JJA delivered the Judgment of the Court CASES REFERRED TO: 1. Savali v Roberts (1698) 12 Mod 208 2. Paul Roland Harrison v The Attorney General ( 1993-1994) Z. R. 68 3. Attorney General v Fred Chileshe Ngoma (1987) Z. R. 80 4. Times Newspaper(Z) Ltd v Lee Chisulo ( 1984) Z. R. 83 5. Attorney General and 3 Others v Masauso Phiri Selected Judgment No. 28 Of 2017 SUPREME COURT i O 7 MAY 2018 11.p I LIBRAR Y LEGISLATION REFERRED TO: 1. Clerk and Lindsell on Torts, 16th Edition: Sweet and Maxwell 2. Halsbury's Laws of England. 4 th Edition, Volume 45 3. McGregor on Damages, 8 th Edition: Sweet & Maxwell (2009) J2 of 17 This Appeal emanates from charges of theft by servant and money laundering which were leveled against the two Appellants by the Drug Enforcement Commission ("DEC"), an agent of the Respondent. DEC, by a letter dated 8 th December, 2011, requested the Appellants' employer, Zambia Red Cross Society, to facilitate the suspension, from office, of the two Appellants to pave way for investigations into allegations of money laundering. In response to this request, through a letter dated 12 th December, 201 l, the Zambia Red Cross Society, based on several factors, amongst them being th e fact that there were no funds reported to have been misappropriated within its organisation, refused to adhere to the request. In their written response they accused DEC of conducting what they termed as a 'witch-hunt' against the 1st Appellant and other senior officers in its employ. According to the 1s t Appellant, his residence at Plot 31326 Chalala was raided at around 15:00 hours in execution of a search warrant in connection to money laundering activities at the Zambia Red Cross Society. At this point the 1st Appellant informed the search party that he was a senior police reservist holding the rank of senior superintendent by virtue of which he possessed a firearm, namely an AK47 rifle duly issued to him by the State in 2002. Quite a lot of goods and chattels including the rifle and title deeds were seized. At an appearance before DEC, the 1st Appellant was charged for the offences of theft, money laundering and unlawful possession of an offensive weapon. J3 of 17 In a similar fashion, the 2 nd Appellant's residence and office were raided on 13th January, 2012 and several goods and chattels were seized. On 24th January, 2012 he was jointly charged with the 1s t Appellant for the offences of theft by public servant and money laundering. A motor vehicle was seized from the 2 nd Appellant and when it was returned to him it had a cracked windscreen. The duo was suspended from employment soon after their arrest by DEC. They were subsequently prosecuted for the offences of theft and money laundering but at the end of trial, they were found with no case to answer which led to an acquittal on 6 th November, 2013 hence the suit in the lower Court for malicious prosecution. The Respondent's version of the events according to DWl, was that DEC dealt with the Appellants matter in the usual way that such matters were dealt with. In this particular case, a report form was received from an anonymous source and the report was submitted to the Commissioner of DEC who authorized investigations to be conducted. The report was allocated to Constance Zimba who worked with two other officers and the three of them reported to DWl. DWl however admitted, during cross examination, that there was no documentation, before the Court, that showed that the investigation was authorized. J4 of 17 DW2, Robert Maliwe, an investigations officer testified that he conducted investigations, with Constance Zimba, relating to funds received by the Zambia Red Cross Society to sink boreholes and pit latrines in Southern Province. He stated that he only found one operational borehole while other sites had no boreholes. He accompanied Constance Zimba to seize a house in Kamwala South belonging to the 1st Appellant which house was registered in the 1st Appellant's daughter's name. In his cross examination, he testified that seizures were carried out in accordance with the Anti-Money Laundering Act but conceded that when the seizure was done, he was unaware of the money laundering charge against the Appellants. DW2 told the Court that the basis of the seizure was that the 1st Appellant had executed a deed of gift in favour of his daughter whilst he was under investigation. He however conceded that this was not a good basis upon which to effect a seizure. Under cross examination, DW2 admitted that during the investigations he did not follow the movement of money from the Zambia Red Cross Society to the Appellants and he also admitted that there was no complaint from the donor of the project. DW3's recollection of the events was similar to that of DW2 in that the Zambia Red Cross Society was not aware of any complaints from any Donors regarding the misappropriation of funds. DW3 said he was not aware that the windscreen of the 2 nd Appellant's car had no crack when the vehicle was seized but when shown that the handover certificate which disclosed that the windscreen was cracked, he responded that he was not there when the vehicle JS of 17 was handed over. The issue identified by the trial Judge was whether DEC instituted criminal proceedings against the Appellants, on allegations of theft and money laundering, maliciously and without probable cause and if so, whether that resulted m damage. She found that there was no evidence that could have given nse to reasonable susp1c1on that the Appellants had engaged m theft and money laundering. Consequently she found for the Appellants and held that their prosecution was instigated maliciously and without reasonable and probable cause. She awarded the Appellants the sum of ZMW30, 000 each as damages for malicious prosecution. The learned trial Judge refused to award the Appellants the claim for special damages in the sum of ZK738,000, in relation to costs, for the simple reason that the said damages were not proved. Notwithstanding, on the strength of JZ Car Hire Ltd v Malvin Chala and Scirocco Enterprises Limited <11, the learned trial Judge made an intelligent award of K50,000 for legal costs. Further, the lower Court denied the 1st Appellant's claim for damages for loss of income from rentals as well as damages against the Respondent for procuring the Appellants' suspension and the subsequent termination of their J6 of 17 employment. Disgruntled with the findings of the trial Court, the Appellants appealed to this Court and the grounds on which this Appeal is premised are as follows; 1. The trial Judge erred in law and fact by strictly failing to apply the law on damages when she awarded a paltry sum of K30, 000 each to the Appellants for malicious prosecution by the Respondent without critically addressing her mind to the depth of damage the proven malicious prosecution caused to the reputations, feelings and professional career progression of the Appellants despite the Appellants adducing evidence to prove the depth of degree of damage suffered as a result of the malicious prosecution by the Respondent. 2. The trial Judge glossed over evidence adduced by the 2nd Appellant and PW3 in the Court below when she erroneously held that the 2 nd Appellant's suspension and consequential dismissal from employment as Finance and Administration Manager by bis employer, Zambia Red Cross Society, was not procured by the Respondent (Drug Enforcement Commission) when she accepted as a fact that the 2 nd Appellant was suspended from work as result of bis arrest by the Drug Enforcement Commission, the same arrest and prosecution the Court held to be malicious as it was instigated by malice. 3. That the trial judge erred in law and fact when she, despite the Appellants adducing documentary evidence that their vehicles got damaged whilst in the custody of the Respondent and whilst the Respondent was conducting the proven malicious prosecution, failed to award damages to the appellants for the damages caused to their vehicles whilst in the Respondent's J7 of 17 custody. 4. Any other Ground of Appeal. At the hearing of the Appeal, the Appellants relied on their filed Heads of Arguments. In summary, the Appellants in Ground one, argued that the Court in awarding the sum of ZMW30, 000 did not take into account the enormous damage caused to their reputation, fame and profession as a result of the malicious Prosecution. The 1st Appellant went to great lengths to submit that he was a reputed public figure, which, according to him, the lower Court acknowledged. He stated that he excelled in his career such that he held an international position on the Humanitarian Principles and Diplomacy Advisory Body in Switzerland. He submitted that he lost his position in Switzerland as well as the position as Secretary General for the Zambia Red Cross Society as a result of the malicious arrest and subsequent prosecution. The 2 nd Appellant submitted that he was a young accountant, aged 35, with an industrious career at the Zambia Red Cross Society and as a result of the malicious arrest, his career crashed. He too was suspended from employment and was consequently dismissed. The massive media coverage of their arrest negatively impacted their reputation and career progression and they submitted that had it not been for the malicious prosecution and arrest, they would have JS of 17 been in employment. With regard to the award of damages and what the Courts must consider, the Appellants cited the case of Savali v Roberts 111 cited by Clerk and Lindsell on Torts in which it was stated that damage to fame, imprisonment and damage to a claimant's property whereby he is put to charges or expenses, must be considered. They further cited the case of Paul Roland Harrison v The Attorney General 121 and Attorney General v Fred Chileshe Ngoma 131 in which the Supreme Court opined on damages being reflective of the tortious circumstances and taking into consideration the impact of inflation. They went on to cite the case of Times Newspaper (Z) Ltd v Lee Chisulo 141 in which the Court addressed the issue of interference with an assessment of damages and instructed that this could only be done where the lower Court misapprehended the facts or misapplied the law or where the award is too low or high so as to be an entirely erroneous estimate of the damages to which a plaintiff is properly entitled. It was therefore their submission that this Court must interfere with the award of damages awarded by the trial Court. In ground two, it was argued that the lower Court glossed over the evidence when she held that the DEC did not procure the suspension of the 2nd Appellant when the evidence shows that, following the malicious arrest by DEC on 24th January, 2012 he was suspended for the very first time. They therefore urged this Court to award damages under this ground. J9 of 1 7 In arguing ground three, the Appellants submitted that the vehicles seized under the seizure notices namely, Nissan Horny Elgrand Registration Number ALB 1 796 and Toyota Prado registration Number ABZ 5414 belonging to the 1st and 2 nd Appellants respectively, were released with defects which was not the case at the point of seizure. According to the Appellants, it follows therefore, that they should be compensated for loss or damage for they had proved that the damage to the vehicles occurred while the vehicles were in the cus tody of the Respondent. We have carefully considered the Record of App eal as well as the heads of arguments submitted on behalf of both the Appellants. In Ground one, the Appellants argued that the Court in awarding the sum of ZMW30, 000 did not take into account the enormous dam age caused to their reputation, fame and profession as a re sult of the malicious Prosecution. With regard to damages for an action of malicious prosecution, the learned Authors of Halsbury's Laws of England state that: "To support an action in damages for malicious prosecution, one of three heads of damages must be shown. The damage may be 1. Damage to a man's fame, as where the matter of which he is accused is scandalous; or 2. Damage done to the person, as where his life, limb or liberty is endangered; or 3. Damage to his property as where he is put to the expense of acquitting himself of the crime with which he is charged. JlO of 17 The Plaintiff must show that any damage to fame suffered was a necessary and natural consequence of the charge itself and as regards the second head of damage, that actual loss of liberty was suffered. Once one of these heads of damage is proved, damages are at large and may include compensation for loss of reputation and injured feeling." The lower Court relied on the text of the learned authors of McGregor on Damages wherein it is stated that a plaintiff is entitled to general damages for malicious prosecution which takes into account injury to reputation, feelings, disgrace and humiliation and proceeded to award the sum of ZMW30 ,000.00. We hold the view that the amount to be awarded in damages under this head is at the discretion of the Court given the circumstances before it. The Appellants cited the case of The Attorney-General v Fred Chileshe Ngoma 131 in which the Supreme Court had occasion to discuss malicious prosecution and the consequent damage inflicted on a plaintiff. We have perused the said Judgment and in that case, the Supreme Court stated as follows; "We bear in mind that we can only interfere with an assessment of damages if it is wrong in principle or if the amount of the award is so totally unreasonable as to be excessive. As we reiterated in the Mwiinde case it is not sufficient for this court to say that had we tried the case we would have awarded different damages. The damages must be wholly wrong before we will interfere." Jll of 17 The Appellants have rightly cited the case of Times Newspapers Zambia Limited v Lee Chisulo 14 1 as well as Paul Roland Harrison v The Attorney General 121 in which the Supreme Court stated that they, as an appellate court, would only interfere with an assessment of damages where the court below has misapprehended the facts or misapplied the law or the damages are erroneously high or low in relation to what a party is entitled to. The lower Court took into consideration the case of Mulimba and Another v the Attorney General, and concluded, as a trial Court and having observed the facts before her, that this was not an appropriate case to award damages in excess of what she had awarded. The Appellants relied on the case of Paul Roland Harrison v Attorney General 121 in support of their argument that awards for serious torts must be reflective of the particular circumstances of a case, and that inflation must be taken into account so as to preserve the value of an award. This principle was illustrated by the Supreme Court in the case of Attorney General and 3 Others v Masauso Phiri 151 where it said as follows with regard to damages for false imprisonment: "It is clear from the authorities that the quantum of damages cannot be resolved with any precision and that awards in other cases must always be treated with caution if it is sought to rely on them as guides. But in the Kawimbe, Kakoma and Sam Amos Mumba cases we held that: "The award of general damages in cases of false imprisonment must where these factors are present, always take into account the circumstances of the arrest and detention, the affront to the person's dignity and the damage to his reputation."" J12 of 17 The Appellants hold the view that the lower Court did not consider the types of damages a claimant is entitled to receive in an action for malicious prosecution, namely; damage to fame, damage to his person whereby he is imprisoned and damage to his property whereby he is put to charges and expenses. It was argued that in casu, their reputations and professions were negatively affected and they were subjected to harsh and inhuman conditions when they were thrown in police cells and forced to mingle with criminal suspects. According to the Appellants these were very serious tortious circumstances which call for an award higher than the K30,000 awarded by the trial judge and further, that they cannot be expected to suffer the same damage to reputation as the farmer in the Mulimba case. We have no doubt that the unwarranted prosecution did cause damage to the Appellant's reputation. Our reading of the trial Court's Judgment reveals that contrary to the Appellant's submissions, the Lower Court only stated that the Mulimba case involved farmers whilst this case involved professionals. All she did was compare the circumstances in the two cases and found that the Appellants herein were not tortured or imprisoned as were the farmers in the Mulimba case. According to the authors of McGregor on Damages, the tort of malicious prosecution falls into the general category where the manner in which the tort is J13 of 17 committed may lead to aggravation or mitigation of the damage, hence the damages . The authors further state that decided cases have not gone into detail with respect to the quantum of damages to be awarded for this tort, but reliance must be placed on analogies from torts such as false imprisonment and defamation. The circumstances in which the tort is committed permits a Court to consider the aggravating circumstances before making an award. As earlier stated, the trial Judge considered the fact that the Appellants were neither imprisoned nor tortured. The trial Judge further stated that the 1st Appellant did not adduce any evidence to support his claim that he was well known internationally. It is thus evident that the trial Judge considered all the facts before her and decided that an award of K30,000 each was adequate compensation for the damage suffered by the Appellants. We consider that reciting the brief facts of the case we cited earlier, Attorney General & 3 Others v Masauso Phiri 151, will be quite helpful. In that case the claimant was attending a funeral when a Land Cruiser pulled up and the occupants ordered him to get in and when he resisted, one of them produced a pistol forcing him to jump into the vehicle. They took him to Lundazi General Hospital, where some documents were retrieved and they proceeded to Lundazi Police Station where he was detained. The next day, he was taken to the CID office where he was unclothed and beaten with two axe handles by the police officers who had detained him and he was informed about the theft of some solar panels. He sustained swellings all over his body and ended up being hospitalized for a month at Lundazi General Hospital. He was granted bail after being discharged from hospital. The claimant was charged and tried for the offence of theft of solar panels but was found with no case to answer and acquitted. Jl4 of 17 He sued the State for malicious prosecution, false imprisonment, and assault and battery. The High Court dismissed the claim for malicious prosecution but granted the other reliefs and awarded damages accordingly. The Attorney General appealed against liability for false imprisonment. Though the Plaintiff was unsuccessful in his claim for malicious prosecution, the manner in which the Supreme Court addressed the issue of damages with regard to false imprisonment and assault and battery provide a guide as to how a court should proceed when awarding damages, even for malicious prosecution, such as in the case before us. In the cited case, after finding that there was no evidence of damage to the Respondent's reputation or profession as all he had said is that he was a businessman, the Court held that an amount of ZKl0,000 was reasonable in those circumstances. In so doing the court said as follows; "We have also considered what we said in the Felix Chris Kaleya case, t hat loca l precedents favour moderate figures consistent with Zambian values under the prevailing economic and social situation. We fu rth er t a k e into account inflation, and what would t oday be the equivale nt of the KlS, 000 (rebased) which we confirmed in the Getrude Mu nyosin case, although that amount i ncluded some exemp lary damages. We consider the sum of Kl0,000 to be appropriate and we award the respondent this amount as damages for the false imprisonment." Jl5 of 17 In the premises and in consonance with the cited authority, we find that the trial judge herein applied sound principles of law to the set of facts before her and we see no reason to upset her findings. This ground of appeal consequently fails. In Ground Two, the Appellants have argued that the lower Court glossed over the evidence when she held that the DEC did not procure the suspension of the 2 nd Appellant wh en the evidence shows that, following the malicious arrest by Dec on 24th January, 2012 he was suspended for the very first time. The Lower Court at J32 , page 42 of the Record of Appeal, stated that the reasons for the Appellants' dismissal were clearly set out in their dismissal letters dated 21 s t March, 2012. She also stated that the 1st Appellant, during cross examination, agreed that the dismissal was based on gross misconduct and not as a result of the investigation and subsequent prosecution on charges of theft and money laundering. A perusal of the Record of Appeal at pages 89 and 90 reveals that the Appellants were suspended for the reason that they were arrested by DEC pending the outcome of the court case. The Record also shows, at page 67 that DEC did in fact write to the Zambia Red Cross Society requesting for the immediate suspension of the Appellants but however, as shown at pages 68 to 72 of the Record of Appeal the request was fervently denied by the Zambia Red Cross Society. This clearly indicates that the Zambia Red Cross placed neither b credibility nor reliance on the allegations by the DEC. Further, the 1st Appellant, at page 178 of the Record of Appeal agreed that the reason for his dismissal was gross misconduct. We therefore find that the trial judge was on terra .firma when she held as she did. This ground also fails. J16 of 17 Lastly, in arguing Ground Three, the Appellants contended that their vehicles namely, Nissan Horny Elgrand Registration Number ALB 1796 and Toyota Prado registration Number ABZ 5414 belonging to the 1st and 2nd Appellants respectively were released with defects. According to the Appellants, it follows therefore, that they should be compensated for loss or damage occasioned to the vehicles. The trial Court did at J34, page 44 of the Record of Appeal, direct her mind to the Appellant's claim for loss of use of motor vehicle and also found that the 2 nd Appellant's windscreen was damaged. She held that in the absence of any evidence adduced as to the cost of replacing the windscreen, she awarded ZMWl0,000 for loss of use of motor vehicle for the reason that the vehicles were in the custody of DEC during the trial. Pages 78, 81, 108 and 109 of the Record of Appeal show that the named vehicles were indeed seized and later released. We note that the 2 nd Appellant's vehicle Toyota Prado Registration Number ABZ 5414 was released with a crack on the windscreen, a fact also noted by the trial Court and we further note that the 1st Appellant's vehicle Nissan Horny Elgrand Registration Number ALB 1 796 was also damaged as indicated at page 109 of the Record. 111111""' J17 of 17 We hold the view that damage to the two vehicles was proved, a fact which the trial Court should have taken into consideration and we are thus inclined to and do interfere with her award with regard to the motor vehicles. We uphold the award of ZMWl0,000 to each Appellant for loss of use of the said motor vehicles. We however order that the damage to the 1st and 2 nd Appellants motor vehicles as well as the claims for loss of use of the said motor vehicles be assessed by the Deputy Registrar. This ground of appeal therefore succeeds. The Appeal having partially succeeded, costs follow the event. DATED AT LUSAKA THIS 27TH DAY OF APRIL 2018 F. M. CHISANGA JUDGE-PRESIDENT F. M. CHISHIMBA COURT OF APPEAL JUDGE M. M. KONDOLO SC COURT OF APPEAL JUDGE ...................................... < - - ""\....__ ====-====