Dominic Shingalwe and Ors v The Attorney General (2024/HP/0635) [2025] ZMHC 104 (17 November 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: UCO \ COURT PRINCI --+- - - - , DOMINIC SHINGALWE . ~ I 7 NOV 025 BWEMBELO SIKASIWA PAUL CHILUFYA JAMESMWALE AND __,. IH:Ql$TiW 3 : •\ 60067, us 2024/HP/0635 1 ST PLAINTIFF 2ND PLAINTIFF 3RD PLAINTIFF 4TH PLAINTIFF ATTORNEY GENERAL DEFENDANT Before the Honourable Lady Justice S . Choe , on the 17th day of November, 2025. For the Plaintiff· Ms. D Kapitolo and Mr. MN nika of Messers ZS Legal Practitioners. For the Defendant: Ms. M Katolo (Assistant Se ior State Advocate) Messers Attorney Generals Chamber . JUDGMENT Cases referred to: 1. Attorney General and 8 Others v Masa so Phiri Appeal No. 161 of 2014. 2. Richman Chulu v Monarch Zambia Li ited (1984) ZR 33. J2 3. Attorney General v Sam Amos Mum.ha (1984) ZR 14. 4. Attorney General and Others v Masau lo Phiri SCZ/8/21/2016. 5. Anti-Corruption Commission v Charles Sambondu. 6. Chileshe v the People (1972) ZR 48. 7. Kawimbe v the Attorney General (197 , Z. R. 244. 8. Stanely v Annets and Another ( 1969) 3 ALL E. R 154. 9. Mubita Mbanga v The Attorney Genera (1979) ZR 234. 10. Attorney General and 3 Others v Masa so Phiri SCZ Selected Judgement No. 28 of 2017. 11. J. Z Car Hire Limited v Chala Scirocco nterprises Limited SCZ Judgment No. 26 of 2002. 12. Bird v Jones [1845] 7 Q. B. 742. 13. Anti-Corruption Commission v Charles Sambodu SCZ Appeal 54 of 2013. 14. Attorney General v Mpundu (1984) Z. R. 6. 15. Times Newspapers Zambia Limited v pwepwe (1973) ZR 387 Le islation and other authorities re erred ta: 1. Section 3 National Prosecution Aut ority Act, Act No. 34 of 2010. 2. Section 12 of the State Proceedings ct, Chapter 71 of the Laws of Zambia. 3. McGregor on damages, 20thy Editio , Sweet & Maxwell (2018). J3 • 1. INTRODUCTION 1.1. This Judgment is in respect of the Plai tiffs claim against the Defendant. The Plaintiffs by way of Writ of Summ ns and Statement of Claim dated May 9 th, 2024 which was amended b Consent Order d ated November 19th, 2024. The Amended Statement .f Claim is dated November 19th, 2024. The Plaintiffs claimed the follow ng: i) ii) Damages for false imprisonment Damages for malicious prosecuti n; iii) Aggravated and exemplary dama es; iv) Damages for loss of reputation; v) Da mages for loss of business; vi) Interest on the sums payable t the current bank of Zambia lending rate; vii) And other relief the Court m ay d em just; a nd viii) Costs. 1.2 . The Defendant filed a Defence an ent red appearance on August 1st , 2024 . 1.3. By Reply dated August 16th, 2 024, th Plaintiff's joined issue with the Defendant's Defence. 2. EVIDENCE/TESTIMONY 2. 1. Trial was scheduled and h eard on Apr· 4th, 2025 and April 14th, 2025 respectively. J4 2.2. The Plaintiffs called five witnesses in a id of their case. PWl was one Dominic Shingalwe, the 1st Plaintiff he ein who filed a witness statement d a ted December 10th , 2024. 2.3. PWl testified in chief that h e was arre ted sometime in December 2020 and the full details for his arrest were ot given. 2.4. PWl testified that on May 3 1st, 2021, Ruling was delivered in which it was found that the prosecution had failed to establish the essential elements of the offence of assault occa ioning actu a l bodily harm. 2.5. PWl testified that h e was acquitted du to the lack of evidence. 2.6. PWl testified that h e was maliciously p osecuted and falsely imprisoned by the Defendant for a period of two we ks. 2 .7. PWl further testified that following is arrest, he experien ced ; fear, anxiety, humiliation, embarrassment nd loss of liberty and that his reputation and fame h a ve been injured s a direct consequence of being accused of committing a criminal offen e . 2.8. PWl testified that his business was an cted and that s ince his a rrest, it has become practically impossible tom nage his business. 2.9. PWl testified that many people have 1 st trust in his business and he h as been frowned upon. 2 .10. PWl testified that h e h as lost the opp rtunity to make the sum of K 150,000.00 as a result of being away fro his business due to th e arrest. JS 2.11. PWl testified that he has incurred ex enses in the sum of K 10,000.00 to secure sureties. 2.12. PWl testified under cross examm tion that he was not m the presence/vicinity of Barnwell Meleki i December, 2020. 2.13. PWl testified under cross examination that the knows the said Barnwell Meleki. 2.14. PWl testifies under cross examination that the that he knows Toasters Bar but he was never there with Born ell Meleki. 2.15. PWl testified under cross examination that on December 21 s t , 2020 he was arrested for allegedly assaulting o e Bornwell Meleki. 2.16. PWl testified under cross examination that he was administered with a warn and caution statement after 5 da s of being in the police cells. 2.17. PWl testified under cross examinatio that he was then later released on police bond. 2.18. PWl testified under cross examinati n that he does not have any evidence before Court in for of bank o mobile statements to prove the income/profits he made. 2 .19. PW 1 testified under cross examm tion that he ordered maize, groundnuts and cow peas for resale. 2.20. PW2 was one Bweembelo Sikasiwa th 2 nd Plaintiff herein who filed a witness statement of the 10th day of De ember, 2024. J6 2.21. PW2 testified in chief that sometime in ecember, 2022, he was arrested and full details were not given for his 2.22. PW2 testified that a warn and caution as only administered on the 5 th day from the day of his arrest. 2.23. PW2 testified that it was alleged that hilst acting with the 1s t• 3rd and 4 th Plaintiffs he assaulted one Bonwe 1 Meleki in Monze on or about December 19th , 2020. 2.24. PW2 testified that he was the released o bond the next day and the warn and caution was administered after tw weeks. 2.25. PW2 testified that two weeks later, he a , peared before Court and entered a plea of not guilty. 2 .26. PW2 testified that his bond was revo ed and he was taken to Monze Correctional Facility where he was de ined for 9 days, before he was released on bail. 2.27. PW2 testified that his human rights were violated while he was in detention due to the beatings by the p lice officers and other inmates. Further that he was not allowed any isitations and did not have any food or water to drink for a day. 2.28. PW2 testified that he was later taken o Court and on May 31 st, 2021, a Ruling was rendered and it was fou d that the Prosecution failed to establish the essential elements of th offence of assault occasioning actual bodily harm. J7 2.29. PW2 testified that following the said Ruling, he was then acquitted. 2.30. PW2 testified further testified that he was maliciously prosecuted and falsely imprisoned by the State for a p riod of about two weeks. 2.31. PW2 testified that he experienced fe r, anxiety, humiliation and loss freedom of movement. Further, that hi reputation and fame have been injured as a direct consequence of eing accused of committing a criminal offence. 2.32. PW2 testified that the offence he was a cused of is frowned upon by the general public and no reasonable per on would want to be associated with him. Further, that he has lost his ood reputation and fame. 2.33. PW2 testified that his work has been fected and that since his arrest, it became impossible to report for work 2.34. PW2 testified that from the date of arre t to the date of acquittal, he has lost the opportunity of making the sum of Kl,700.00 2.35. PW2 testified that he has also incu ed expenses m the sum of K 3,000.00 to secure sureties. 2.36. PW2 testified under cross examinatio that he patronises Toaster Bar and sometime in December, 2020, he as at the bar. 2.37. PW2 testified under cross examination that Barnwell Meleki was not at the bar on the material day. JS 2.38. PW2 testified under cross examination that on December 21 st , 2020, he surrendered himself to the police and e was not picked up. 2 .39. PW2 testified under cross examinatio he was arrested for assaulting Barnwell Meleki and subsequently rele . sed on Police Bond. 2.40. PW2 testified under cross examinatio that the arresting officers were witnesses in the criminal case. 2.41. PW2 testified that he has not produce h s drivers licence or any contract, bank statement and medical report be£ re Court. 2.42. PW2 testified under cross examination that he stayed in the police cell for 5 days. 2.43. There was no re-examination. 2.44. PW3 was one Paul Chilufya, the 3rd Pl intiff in this matter who filed a witness statement on December 10th , 2 124 . 2.45. PW3 testified that sometime around Ja uary 8 th , 2021, he was arrested and taken to Monze Police Station c lls where a warn and caution statement was issued. 2.46. PW3 testified that it was alleged that w ilst acting together with the 1st, 2 nd and 4 th Plaintiffs, he assaulted o e Bonwell Meleki in Monze on December 19th, 2020. 2.47. PW3 further testified that he was relea ed on bond on the very day he was arrested and a week later, he appe ed before Court and the matter J9 was adjourned m order to allow e accused persons get legal representation. 2.48. PW3 testified that 2 weeks later, heap eared before Court an entered a plea of not guilty and the bond was su sequently revoked. Further, that he was taken to Monze Correctional F cility where he was detained for about two weeks before he was release on bail. 2.49. PW3 further testified that during det ntion, his fundamental human rights were violated as he was subject d to beating by the officers and inmates and that he was not allowed ny visitations and did not have any food or water to drink for about a 2.50. PW3 testified that there was no re or probable cause for suspecting that he assaulted Bornwell eleki. 2.51. PW3 further testified that a week afte his detention, he was taken to Court and on May 31 st , 2021, a Rulin was rendered were it was found that the Prosecution failed to establi h the essential elements of the offence of assault occasioning actual b dily harm. 2.52. PW3 testified that further to the abo e, he was acquitted and set to liberty. 2.53. PW3 testified that he was maliciously p osecuted and falsely imprisoned by the Defendant. 2.54. PW3 further testified that following 1s arrest, he experienced fear, anxiety, humiliation, embarrassment a d loss of freedom of movement. JlO 2.55. PW3 testified that his reputation as been injured as a direct consequence of him being accused of c mmitting a criminal offence. 2.56. PW3 testified that the offence he was ccused of committing is frowned upon by the general public and that h has lost his good reputation. 2.57. PW3 testified that his employment was affected and that in the 2 months period he was away from work, he has lost the opportunity to make the sum of K9,000.00. 2.58. PW3 testified that he also incurred ex enses in the sum of K18,000.00 in securing sureties. 2.59. PW3 testified under cross examination hat he was released on the same day. 2.60. PW3 testified under cross examination that he does not know Barnwell Meleki and was arrested for allegedly a saulting Barnwell Meleki. 2.61. PW3 testified under cross examination at in the criminal trial, Barnwell Meleki was not a witness, but the Polic Officers were witnesses. 2.62. PW3 testified under cross examination hat the police refused to give the Plaintiffs medical reports showing that hey were beaten by the Police. 2.63. PW3 testified under cross examination 1hat he has no proof before Court to show that he was denied food for ab ut a day. 2.64. PW3 testified under cross examination that he does not have evidence before Court to prove that he is a sales an. Jll 2.65. PW3 testified under cross examinatio that he has no evidence before Court to prove the sums he claims to ve lost. 2 .66. There was no re-examination. 2 .67. PW4 was one James Mwale, the 4 th Dd ndant h erein who filed a witness statement dated December 10th , 2024. 2.68. PW4 testified that on January 7 th , 202 , he was arrested and placed in Monze Police Station cells but the full d tails of the grounds of his arrest were not given. 2.69 . PW4 testified that a warn and cauti n statement was issued a day following his arrest. 2.70 . PW4's testimony was the same with th t of PW3 in paragraphs 2.46 to 2.56. 2.71. PW4 testified that in the 2 months he as away from work, he lost the opportunity to make the sum of K 28,0 10 .00 . 2 .72. PW4 testified that h e also incurred exp nses in th e sum of K6,000.00 to secure sureties. 2 .73. PW4 testified under cross examination hat h e knows the said Bornwell Meleki. 2 .74. PW4 testified under cross examin ation that the a rresting officer was a witness in the crimina l proceedings. J12 2.75. PW4 testified that he has not provide evidence before Court to prove that he was a bus driver and to prove 1 ss. 2.76. There was no re-examination. 2.77. PW5 was one Albert Mukutu who filed a witness statement dated December 10th , 2024. 2.78. PW5 testified in chief that the is a for r workmate of the 4 th Plaintiff. 2.79. PW5 testified that he has known the th Plaintiff for over 6 years and worked with him as a bus driver at Be 2.80. PW5 testified that the 4 th Defendant ha a good reputation in the eyes of the general public and was famous am ng bus owners and drivers. 2.81. PW5 testified under cross examinatio that the 4 th Defendant made about K14,000.00 on a monthly basis. 2.82. PW5 testified that the 4 th Defendant w s arrested on January 7 th , 2021 for the offence of assault occasioning bo ily harm which affected his work and the employer was uncomfortable ith the news of the arrest and caused the 4 th Plaintiff to lose h is job. 2.83. PW5 testified that the arrest caused im to lose his fame among bus owners and drivers. 2.84. PW5 testified under cross examinat' n that he has not produced eviden ce before Court to prove that t e 4 th Plaintiff made a monthly income of about K 14,000.00. J13 2.85. PWS testified under cross examination that he trusts the 4 th Plaintiff. 2.86. There was no re-examination. 2.87. The Defendant called one witness in a· of its case. OW was one Mwiya Munalula who filed a witness statemen dated October 11 th , 2024. 2.88. OW testified that on December 20th , 2020 whilst on duty, she was allocated two dockets for investigation. 2.89 . OW testified that the said dockets contained charges of assault occasioning actual bodily harm and un awful wounding. 2.90. OW testified that these counts were rep , rted by one Barnwell Maleki who stated that he had been assaulted by Je Plaintiffs. 2.91. OW testified that the said Barnwell M eki a lleged that the said assault occurred on December 19th , 2020 arou d O 1 :45 am at a place known as toasters night club in Monze District. 2.92. OW further testified that one Maxwell Meleki complained that he had been unlawfully wounded by the 1st Plai tiff. Complainant stated that he sustained a deep cut on the upper part f his lip, swollen lower lip as an empty bottle was used during the fight. 2 .93. OW testified that the said Maxwell Mele i reported that while drinking at Toasters Bar, the Plaintiffs who were s 'd to be United Party for National Development (UPND) supporters attac ed them in full view of other people. J14 2.94. DW testified that she interviewed oth r witnesses who confirmed that they saw the Plaintiffs beating and ass ulting Barnwell Meleki. 2.95. DW testified that on December 21 st, 2 20, the 1st and 2 nd Plaintiffs were taken to the Police Station where the were given a warn and caution statement and subsequently interview d. 2.96. DW testified under cross examination at she did not go to the scene of the crime to conduct investigations b t only recorded statements from eye witnesses. 2.97. DW testified under cross examination at the eye witnesses freely came to the Police Station and she only in ,erviewed the eye witnesses that came to the Police Station. 2.98. DW testified under cross examination hat it is true that Suspects of an offence should be issued with warn an caution statements before they can be questioned. 2.99. DW testified that if a suspect makes a tatement, the suspect must sign the statement and the Police officer m st certify the statement. 2.100. DW testified that the offence the Pl intiffs were charged with was dismissed. 2.101. DW testified that the Ruling dismissin the offence charged stated that the offence charged was not investigate . J15 2.102. DW testified that a medical report was produced in the criminal matter showing that the said Barnwell Meleki as assaulted with slaps. 2. 103. There was nothing in re-examination. 3. LAW AND SUBMISSIONS. 3 .1. All Parties filed their written submissi ns. The Plaintiffs filed on April 24th, 2025, and Defendant filed on J ly 11th, 2025. I h ave read the submissions and will not reproduce t , em in full as t h e same are on record, suffice to state that I have c nsidered the submissions even thought I might not directly refer to the in the Judgement. 3 .2. The Plaintiffs submit that false impriso ment denotes the deprivation of on e's liberty and freedom of movement in the absence of justifiable grounds or reasonable and probable ca se for restraint. In making this submission, the Plaintiff relied on the£ llowing authorities. • Attorney General and 8 Othe s v Masauso Phiri Appeal No. 161 of 20141; • Richman Chulu v Monarch Za bia Limited ( 1984) ZR 332 ; and • Attorney General v Sam Amos umba (1984) ZR 143 · 3.3. Plaintiff submits that what is cardinal t , note is that what is reasonable and probable cause relates to suspicio sufficiently strong to warrant a reasonable man in belief t hat the chl rge is true and giving him in custody. Reliance was placed on the ase of Attorney General and J16 Others v Masauso Phiri SCZ/8/21/ 0164 in which it was stated as follows: "Furthermore, we cannot accep the Appellants argument that it was not unreasonable, to h ve given the Respondent the ground for detention the next d y because this argument was never made in the Court below n cannot be made on appeal. In any case, the case of Simpo ya v Eric Masauso Phiri and Others heavily relied on by Cou sel for the Appellants in his oral argument does not help the ppellants at all. In that case, we found that the Responden s had failed to justify the detention of the Appellant and that mere suspicion without investigation cannot justify dete tion of any person". 3.4. The Plaintiff submits that while at Mon e Central Police Sta tion; the 1st and 2nd Plaintiffs were detained for 5 d a 1 s , th e 3 rd Defendant for 6 hours and the 4th Defendant for 1 day wit out a warn a nd caution being administered from the date of their a rre t . 3 .5. The Plaintiff submits that the circums ances at the time of th e arrest wer e not in any way sufficiently strong nough to suspect the Plaintiffs of committing the crimes a lleged su ch t at a n a rrest could be effected on the Plaintiffs. 3 .6. The Plaintiffs submit th at the a rrest by e Defendant amounted to false imprisonm en t of the Pla intiffs and th ere ore, the State is liable. 3.7. The Pla intiffs furth er submit th at m a li ious prosecu tion occurs where criminal proceedings are commenced ag · nst a person in the a bsence of reasonable and justifiable cause, in a a liciou s manner a nd that th e J17 said proceedings terminate in favour of the accused person and the accused suffers loss or d amage. 3.8. Th e Pla intiffs su bmit that the factor and consideration that go to establis h reason a ble and probable cau e or lack th ereof in a n action for m a licious prosecution are the same a those in a n action for wrongful arrest. 3 .9. The Plain tiff submits that reason a ble d probable cau se entails having grounds that would jus tify th e Defend nt's con clusion that the Pla intiff is guilty of th e offence charged. Relian c was placed on the case of Anti Corruption Commission v Charles Sa bondu5 in which the Cou rt held as follows : "Reasonable and probable caus for the Prosecution has been said to be an honest belief in t e guilt of the accused based upon a full conviction founded pon reasonable grounds, the existence of a state of circum.sta ces, which assuming them to be true, would reasonably lea any ordinary prudent and cautious man, placed in the p sition of the accuser, to the conclusion that the person char ed was probably guilty of the crime imputed". 3. 10. Placin g reliance on the case of Chilesh v The People (1972) ZR 486 , The Pla intiffs submit t h a t in th e a bse ce of reason able and probable cau se, on e can b e said to have been aliciously prosecuted and that there are processes relating to investi ation s and taking of warn and cau tion statem en ts to en sure reason ab e a nd proba ble cau se for on e's J18 arrest. Further, that the processes are · overned by the English pre-1964 Judges Rules. 3 .11 . Further, that the Court in the Chil she6 case emphasised that an accused person or suspect should no be interrogated without a warn and caution statement and that the arrest and prosecution of the Plaintiffs was unreasonable and malic ous for failure to investigate the commission of the alleged crimes. 3.12. The Plaintiffs submit that the circum tances of the case demonstrate that prosecution of the Plaintiffs was ommenced by the State and the proceedings against the Plaintiffs wer brought by the State's agents maliciously without any reasonable or robable cause . That there is no eviden ce which showed that the Plainti fs were involved, participated of committed the offence a lleged. 3. 13. The Plaintiffs further submit that by r ason of false imprisonment and malicious prosecution, the Plaintiffs h e suffered loss and a re entitled to damages. The Plaintiffs placed relian e on the case of Kawimbe v the Attorney General (1974) Z. R. 2447 in hich it was h eld as follows: "The award of general damages tin cases of false imprisonment must . . . always take into ace unt the circumstances of the arrest and detention, the affro t to the person's dignity and the damage to his reputation. 3 . 14. The Plaintiffs submit that for one to a ttain damages for false imprisonment, the Court will take into a count the circumstances of the J19 arrest and detention, the affront to a person's dignity and the damage to his reputation. 3.15. Regarding malicious prosecution, the Plaintiffs submit that a Plaintiff has to show that he/she has suffered damage in relation to his fame, his/her liberty is endangered and dam ge to his/her property. 3.16. In response, the Defendant submits th , tit is a trite principle of law that he who alleges must prove and that th burden of proving the Plaintiffs claims solely rests on the Plaintiff. 3.17. The Defendant submits that the Plaint' f has failed to prove its case and the Plaintiff is not entitled to any of its claims. 3.18. The Defendant submits that there ar four elements that have to be proved in order to sustain an action for malicious prosecution which are; i) ii) There must be prosecution by th Defendant; The prosecution should end inf vour of the Plaintiff; iii) The prosecution should have be n instituted without reasonable and probable cause; and iv) The prosecution should have be n instituted maliciously. 3.19. The Defendant submits that the first two element are not in dispute however, what is in dispute is wheth r the police officers arrested the Plaintiffs without reasonable and p bable cause and whether the institution of the prosecution was mal cious. Reliance was place on the J20 cas e of Stanely v Annets and Anothe (1969) 3 ALL E. R 1548 in which it was stated as follows: "In an action for malicious pr secution the burden is on the Plaintiff to prove the malice an absence of reasonable cause. If the Defendant denies it, it is not the practice to require the Defendant to give particulars o his denial. It is only if he puts forward a positive allegation th t he should be required to give particulars of it". 3.20. Placing reliance on the authority in th case of Ginski v Mciver (1962) ALL E. R 969, the Defendant submits that in order for the Plaintiff to succeed on the issue of reasonable a n probable cause, he must prove one of the following: i) That the Defendant did n ot beli e that the Plaintiff was guilty of the offence; and ii) That a person of ordinary and ruden ce a nd caution would no conclude, in light of the facts in which h e honestly believed, that the Plaintiff was proba bly guilty. 3.2 1. The Defendant submits that the Poli e Officers had reasonable a nd probable cause to arrest and ch a r e the Plaintiffs as preliminary investigations showed tha t there was report or compla int of assault that was reported by a Mr. Barnwell eleki and the mere fact that th e Pla intiffs h ave b een acquitted does n ot m ean in itself that there was n o reason a ble and proba ble cause. J21 3.22. Placing reliance on the case of Mubita banga v The Attorney General (1979) ZR 2349 , the Defendant sub its that in defining malice, the consensus of opinion among Judges h s been that there must be some other motive on the part of the accuser than a desire to bring justice to the person whom he honestly believes t be guilty. 3.23. The Defendant submits that the po ice officers mcasu thoroughly investigated the matter and did not m liciously arrest and charge the Plaintiffs. 3.24. The Defendant submits that the Plain iff has failed to prove the false imprisonment and malicious prosecutio , against the Defendant. Further that, the Defendant acted within the confines of the law when they investigated a report made to them and apprehended the Plaintiffs. 3 .25. The Defendant submits that there was reasonable and probable cause which caused them to charge the Pl · intiffs and the Plaintiffs were subsequently released on police bond d the docket was h anded over to National Prosecution Authority for f rther action and th e Defendant became functus officio. 3.26. Further, the Defendant submits that t e Defendant did not prosecute the Plaintiffs but rather, it was Nation 1 Prosecution Authority which prosecuted th e Plaintiffs and Nation P osecution Authority is a body corporate with perpetual succession as per Section 3 of the National Prosecution Authority Act. J22 3.27. The Defendant submits that the Nation 1 Prosecution Authority has legal capacity and the Authority does not f 11 under the shield of the State Proceedings Act. 3.28. The Defendant submits that the Defend t played a pre-prosecution role where they received a report, investigat d the report and handed it over to the State Prosecutors who proceeded to prosecute the Plaintiffs. 3.29. The Defendant submits that the laintiffs claim for malicious prosecution lies against the National Pr secution Authority and has been wrongly commenced against the Defend nt. 3.30. The Defendant submits that the Plain ff has failed to prove that they were maliciously prosecuted and have fL led to establish the ingredients for one to be entitled to damages for ma icious prosecution. 3.31. The Defendant further submits that in n action for false imprisonment, the Plaintiff needs to prove nothing m re than the detention and the Defendant is left to prove the lawfulnes of his actions. 3 .32. Placing reliance on case of Attorney G eral and 3 Others v Masauso Phiri SCZ Selected Judgement No. 28 of 201710 the Defendant submits that in order to prove false im risonment, the Plaintiff has to prove the following elements: i) The fact of false imprisonment; an J23 ii) The absence of lawful authori y and for these two purposes, imprisonment is the complete d privation of liber ty for any time, h owever short, without lawful ca se". 3.33. Further, the Defendant relied on the ase Richman Chulu v Mornach (z) Limited (1983) ZR 332 in which th Court held as follows: "False Imprisonment only ariser where there is evidence that the arrest which led to the dete tion was unlawful, since there was no reasonable and probabl cause". 3.34. The Defendant submits that the princi les of false imprisonment are well settled and the understanding is that if person is detained by the police, and there is reasonable and probable cause to believe that the person has committed a crime, there can be n false imprisonment. 3.35. The Defendant submits that for a per on to claim false imprisonment, they need to s how that they were ot aware of the reason for the detention and th at in the present case the Plaintiffs were well aware of the reason of the allegations against th m. 3.36. The Defendant submits that the D endant did form a reasonable suspicion that warranted the arrest of he Plaintiffs. 3 .37. The Defendant further submits that ag ravated damages are awarded to a Plaintiff if they have suffered ino eased distress because of the Defendant's actions and that exempla damages are awarded when the Court finds the Defendant's conduct is particularly reprehensible. J24 3.38. The Defendant submits that it is trite at for one to be compensated or damages to be atoned for assault, anxi ty, fear of inju ry to repu tation or loss of bu siness, the party claiming mu t produce evidence. Reliance was placed on th e case of J . Z Car Hi e Limited v Chala Scirocco Enterprises Limited SCZ Judgment o. 26 of 2002 11 in which was stated as follows: "We have considered the learne Deputy Registrar's judgment and the submission before us a d we have been unable to fault the learned Deputy Registrar in his holding that there was no evidence of loss of business to b quantified. We agree with Mr. Mwanashiku that the mere roduction of the hire chart charges was not proof that thi particular motor vehicle was ever hired and what averagi earnings it made for the appellants for a month. This c ! urt has said it in a number of cases such as ZULU V AVONDA E HOUSING PROJECT (2) AND MHANGO V NGULUBE & OTHE · S (3) that it is for the party claiming any damages to prov the damage, never mind the opponent's case. If left alone, t e court is at large and it may award intelligent awards if any In the present case, the court was not assisted by the appella t with an evidence at all. The evidence of carrying on car hi e business was not enough to persuade the court to mak any meaningful intelligent assessment of damages". 3.39. The Defendant s u bmits that the Plainti fs h ave not adduced any eviden ce to support their claims for loss of busi ess and the kind of business has not been traversed. Further, that the have not produced evidence for assault while in police custody or inju to their reputation a nd that they suffered from fear and anxiety. ... 3.40. The Defendant calls this Court to dismi s the Plaintiffs action with costs. J25 4 . COURTS ANALYSIS/DECISION 4. 1. I have h a d occasion to con sider the p rties arguments for which I am grateful, t h e following are the main iss es for determination. i) Whether the Defendant detaini the Plaintiffs amounts to false imprisonment; and ii) Wh ether th e Plaintiffs were mali iously prosecuted. 4.2. The En glish case of Bird v Jones (1 45] 7 Q. B. 742 12 defines false imprison men t as follows: "False imprisonment is a restra nt on the liberty of the person without lawful cause, either by confinement in prison, stocks house etc., even by forcibly det i ning the party in the streets against his will." 4.3 . If a person is detained by th e police, th y ought to have a reasonable and probable cause for believing that the person has committed a crime/ offen ce. In the absence of such easonable and probable cause, it amounts to false imprisonment. 4.4. The Cou rt in th e case of Richman Chu u v Monarch (Z) Limited (1983) Z. R. 332 held as follows: "False imprisonment only arise where there is evidence that the arrest which led t o the dete tion was unlawful, since t here was no reasonable and probabl cause". 4.5. In determining what amounts to rea onable and probable cause the Supreme Court in the case of Anti-Co ruption Commission v Charles Sambodu SCZ Appeal 54 of 2013 13 h d the following to say: ... J26 "Reasonable and probable cau e for a prosecution has been said to be an honest belief in t e guilt of the accused based upon afull convictionfounded u on reasonable grounds, of the existence of a state of circumst nces, which assuming them to be true, would reasonably let ' any ordinary prudent and cautious man, placed in the p sition of the accuser, to the conclusion that the person cha ed was probably guilty of the crime imputed. It is also important to note that he presence of reasonable and probable cause for a prosecutio does not depend upon actual existence, but upon a reasonable belief held in good faith in the existence of such/acts as w uldjustify a prosecution. " 4.6. I have perused the evidence on record · nd here under is my decision on wheth er the Defendant's deten tion of the Plaintiffs amou nted to false imprisonment. Th e case of Attorney G neral and 3 Others v Phiri10 is instructive on wh at will amount to fals imprisonmen t . 4.7. In order for th ere to be false imp rison ent, it must be shown that the Plaintiffs were unlawfully, inten tional y or recklessly restrained from their freed om of m ovemen t a n d that th re can be no false imprisonment if th e person 's arrest is justifiable or if here is reasonable and probable cau se of rest raint. 4 .8 . On perusal of th e record, it can be sh o n that the Complainant reported to the Defendan t that he was wou nd d and identified h is assailants. Add itionally, there was a m edical repor which confirm ed th at indeed the Complainant was assau lted. 4.9. For th e foregoing, I am of th e consi ered view th at Defendant had reasonable a n d probable cau se to deta·n the Plaintiffs and th e detention J27 did n ot amount to false imprisonme t. It th erefore, follows that the Plaintiffs claim for false imprisonment ails. 4.10. I shall now address my mind to the is e of whether the Plaintiffs were maliciously prosecuted. 4 .11. The Defendant in its a rguments is of th view that the claim for malicious prosecution is wrongly initiated again t the Defendant as the Plaintiffs were not prosecuted by the Defendant but by the National Prosecution Authority, which is not a party to the p oceedings. 4.12. As a General rule all civil proceedings against th e State lie against the Attorney General. The State Proceedi gs Act in Section 12(1) provides as follows: "12. (1) Subject to the provision of any other written law, civil proceedings by or against the · tate shall be instituted by or against the Attorney-General as the case may be". 4.13. This provision is subject to provisions of other written law. This entails that were there is written law which pr vides otherwise, this general rule can be departed from and the other revisions of written law will be considered an exception to the general rule. 4.14. One such provision of the law to ich Section 12 of the State Proceedings Act is subject to is the ational Prosecution Authority Act which in Section 3 (1) estab is h es the National Prosecution Authority as a body corporate capabl , of suing a nd being sued in its name. Section 3(1) of the Nation Prosecution Act provides as follows: J28 "(1) There is hereby established the National Prosecution Authority which shall be a body corporate with perpetual succession and a common sea , capable of suing and being sued in its corporate name and ith power, subject to this Act, to do all such things as a bod corporate may, by law, do or perform". 4.15. Furthermore, the National Prosecutio Act in Section 3(2) provides to the effect that were the National Prosec tion Authority sues or is sued in civil proceedings, the provisions of t e State Proceedings Act shall apply to those proceedings as if for the reference of the State there were substituted a reference to Authority. S ction 3(2) of the Act provides as follows: (2) The provisions of the State roceedings Act shall apply to civil proceedings by, or again t, the Authority as if, for a reference to the State there wer substituted a reference to the Authority. 4.16. I am of the opinion that the Plaintiffs cl im for malicious prosecution lies against the National Prosecution Au hority as it is the prosecuting authority with the capacity to sue and be sued in it's name. The nature of the offence for which the Plaintiffs w re prosecuted is one such offence over which National Prosecution Autho ity has the discretion to make an informed decision to proceed with the prosecution upon being satisfied that there is a reasonable and pro able cause. In the absence of reasonable and probable cause, the N ional Prosecution Authority is at liberty not to institute proceedings. J29 4.17. I am therefore, of the view that the cl ·m for malicious prosecution is wrongly against the Defendant as it lies against the National Prosecution Authority who is not a party to this act on. 4.18. Having found as above, determining ether or not the Plaintiffs were maliciously prosecuted becomes otiose. 4.19. As regards the Plaintiffs claim for da ages for loss of business, the Supreme Court in the case of Attorne General v Mpundu (1984) Z. R. 6 14 stated as follows: "It is thus trite law that, if a pl intiff has suffered damage of a kind which is not necessary nd immediate consequence of a wrongful act, he must warn t e defendant in the pleadings that the compensation claimed would extend to this damage .... Consequently, a mere state ent that the plaintiff claims "damages" is not sufficient to l t in evidence of a particular kind of loss which is not a ecessary consequence of the wrongful act and of which the efendant is entitled to a fair warning. In other words, usual, ordinary or general damages may be generally pleaded; hereas, unusual or special damages may not, as these mu t be specifically pleaded in a statement of claim (or where nee ssary, in a counter-claim) and must be proved. " 4.20. As the record will show the damages~ loss of business have not been specifically pleaded and have not bee proved. The Plaintiffs claim, for damages for loss of business therefore, falls. 4.21. The Plaintiffs also have not shown o given reason to be entitled to exemplary damages. The Court in the c se of Times Newspapers Zambia Limited v Kapwepwe (1973) ZR 38715 guided as follows: l1 J30 "In Zambia exemplary damages may be awarded in any case where the defendant has acted in co tumelious disregard of the plaintiffs rights. " 4.22. On perusal of th e record, I cannot see y scornful or insolent behaviour on the part of the police which can be r garded contumelious. 5 . CONCLUSION 5.1. In light of the foregoing, I find that the laintiffs claims fail. 5 .2. Each party shall bear its own costs. 5 .3. Leave to appeal is granted. REPUBLIC OF ZAMBIA HIGH COURT OF ZAMBIA ht& I 7 NOV 2025 ~ S. CHOCHO. J P. 0 . BOX 50067, LUSAKA s. CHOCHO l HIGH COURT JUD - E