Mitengo v Attorney General (Civil Cause 3571 of 2000) [2001] MWHC 88 (25 September 2001)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO 3571 OF 2000 . ( BETWEEN: D. MITENGG 5su0mmmssmssimics e ueneumenscen ssamusmamusspsnes PLAINTIFF AND ATTORNEY GENERAL .......cooviviiiiriiiini e, DEFENDANT CORAM: POTANI, REGISTRAR Mzumara, Counsel for the Plantiff RULING On November 15, 2000, the plaintiff, Dickson Mitengo, commenced this action against the defendant, the Attorney General, claiming damages for false imprisonment and malicious prosecution and also withheld salary and costs of this action. Then on January 11, 2001, an interlocutory judgement in default of service of defence was entered. Subsquent to the of assessment of default judgement, the plaintiff took out a However, the damages which was duly served on the defendant chose not to assessment. the hearing of the evidence on the defendant. attend notice It was the plaintiffs undesputed evidence that he was employed by the Plaint Vehicle Hiring Organisation (PVHO), owned by the government, as a Motor Vehicle Mechanic. On October 21, 1999, Policemen came to his place of work. They arrested him and took him to Blantyre Police Station He was informed that he had been arrested and later to Chichiri Prison. recovered motor vehicle a because his employers had However, according to the plaintiff, he watchman at his place of work. was at his house when the items were recovered from the watchman. After his arrest on October 21, the plaintiff was eventually released on bail on October 25 as per EXP1. It was his testimony that while in custody, he underwent untold hardship. He was being perpetually beaten by hardcore inmates and was being made to clean filthy toilets. parts from Following the acquittal, It was further the plaintiff's evidence that he was prosecuted on a charge of theft by Public Servant C/S 283(1) of the Penal Code. As it turned out, he was acquitted of the charge and he tendered a copy of the judgement as EXP2. letter tendered as EXP3 reinstated him to his work. The letter of reinstatement, however, stated that the salary withheld from the plaintiff during the pendency of his case would be forfeited. The plaintiff found it difficult to He referred the matter to his legal practitioners. accept such a condition. This did not go down well with his employers who in turn suspended him from work with effect September 5, 2000, as per EXP4. plaintiffs employers by the Regarding his monthly salary, the plaintiff had it that he used to earn about K1,700.00 net pay. To that effect, he tendered EXP5, a payroll for the month of September 1999 which shows the sum of K1,737.94 as his net pay. the the claim indignity, for damages for false imprisonment and mental suffering, disgrace and On malicious prosecution, damages are awarded for injury to liberty and feelings, that the is, attendant loss of social status. See Mc Gregor on Damaages 15" Edition Page 1026 paragraph 1619. Further damages are recoverable for incarceration has any physical occassioned a deleterious effect on the plaintiff's health and Lowden vs. Also damages are Goodrick _ (1791) Peak 64 point. in Walter v. J put it recoverable for injury to reputation as Lawrence L Alltools (1944) 61 TLR 39, 40 that: in cases where the humiliation with a case in illness injury or is “false imprisonment does not merely affect a man’s liberty; it also affects his reputation”. It would also appear that the period of the false imprisonment is also a relevant factor to be considered in arriving at the award of damages. The plaintiff in this case was imprisonment for 5 days. It was his evidence that he suffered during those 5 days as he was being beaten by inmates and was made to clean filthy toilets. In arriving at the award to be made, guidance has been sought from the case of Kaisi v. Registered Trustees of Blantyre Adventist Hospital Civili Cause Number 437 of 1994 (unreported) in which an award of K5,000.00 was made for imprisonment lasting 3 hours. It has to be borne in mind, though, that since that award was made, the value of our currency has suffered remarkable devaluation. | consider an award of K25,000.00 to be fair and adquate for the false imprisonment and K15,000.00 for malicious prosecution. Regarding the claim for withheld salary, | hasten to say that upon his acquittal of the charge his employers made against him, the plaintiff was obviously entitled to payment of the salary that was withheld such that the defendant's action of forfeiting the withheld salary as a condition for his reinstatement can not stand. According to EXP5, the last pay the plaintiff got was K1,737.94. That was in September 1999. Since then, he has never been paid any salary. is therefore ordered that the plaintiff be paid withheld salary from October 1999 to the date of reinstatement or lawful termination of his services at the rate of K1,737.94 per month. It Costs of this action are for the plaintiff. Made in Chambers this day of September 25, 2001, at BLANTYRE. A \ /\/‘\/WU “\‘\ }H’ S g Potan} A Y /" EGISTRAR