Ngulube v AG (Civil Cause 1564 of 1993) [1994] MWHCCiv 12 (28 January 1994)

/Ci/7' li T• rt '-PC< c•"2u g1__ 0/-199~ IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO 1564 OF 1993 BETWEEN: DONALD NGULUBE PLAINTIFF -and -THE ATTORNEY GENERAL ..................... DEFENDANT CORAM: D F MWAUNGULLU, REGISTRAR Mwafulirwa, Counsel for the Plaintiff Ndalama (Mrs), Court Clerk ORDER On 12th November 1993 the plaintiff, Mr, Ngulube, took out this action against the Attorney General claiming damages for false imprisonment and wrongful dismissal. J~gement was obtained in default of notice of intention to.~fend on the 9th of December, 1993. The notice of intention to defend was lodged after judgment had been entered. The-appointment for assessment of damages was set for 4th January, 1994. The defendant was served by sending the notice of appointment to him on 15th December, 1993. The defendant did not appear. I heard evidence from the plaintiff. There was a novelty in the claim for which I reserved my order. The plaintiff was employed in the police and was working in the immigration department. The defendant is sued on behalf of the Malawi Government under the Civil Procedure (Suits by and against Government and Public Officers) Act. The facts giving rise to the action are not many. On the 20th of May, 1990 the plaintiff was arrested by fellow policemen. He was arrested from his house. He was not told why he was arrested. He was taken to Blantyre Police Station and later at Chilomoni Police station. He was-put in a cell. 2/ .... -2 -Later at Chichiri, the plaintiff was severely beaten. A fellow policeman hit him with a gun. The plaintiff fell on his finger. The finger does not function properly any longer. He has a conspicuous scar at the place where he was hit with the gun. The plaintiff was in prison up to 3rd December, 1992. The first few days he did not eat well. The Police could not allow him food brought to him by relatives. He was at Chichiri prison for one year and two months. He was at Maula prison for a further one year and four months. He was released. He was not charged with any offence. 'l'he p lcJ in ti_ fr, who as we havr~ seen, w;Js in Lhe Police force was earning Kl33.00 per month. The factual situation that l have to deal with in assessing damages in this action is, put simply, as follows. The defendant is liable for false imprisonent. The false imprisonment has caused the plaintiff to loose a job. The plaintiff was dismissed after five months of being in prison. Curiously, the tortfeaser is the employer and he dismissed the plaintiff. Touching damages for wrongful dismisal the plaintiff is entiled to the wages up to the time he was dismissed. Section 11(2) of Employment Act provides: "Where an employee is summarily dismissed for lawful cause he shall be entitled on dismisal to the wages due to him up to time of his dismissal". The plaintiff was dismissed after five months of being in prison. The dismissal could not be retroactive. The plaintiff is also entiled to damages for wrongful dismissal. The amount of damages will be the amount due on notice for termination. Both awards are subject, in accordance with the decision in British Transport v. Gourley, (1956) AC. 185, to incidence of taxation. On the claim for damages for false imprisonment, the general damages will cover damages for loss of time, not in a pecuniary sense, and injury to feelings and reputation. When awarding damages for false imprisonment, the courts award for loss of liberty and waste of time. This award is not monetary for, if it was, it would be sufficient to look, for example, for the earnings he has lost. Loss of wages or earnings, if not paid by the employer, can be claimed directly as we shall see shortly. The loss of liberty or waste of time can not be 3/ .... - -3 -postulated in relation to time alone although time is one of factors. Time has to be considered together with the loss of dignity, humiliation, anxiety, confinement and loss of status which attend false imprisonment. The line is not easy to draw. That these considerations boggle courts is evident from the words of Lawrence, L. J. in Walter v. Alltools (1944) 61 T. L. R. 39, 40: fl a false imprisonment does not merely affect a man's liberty; it also affects his reputation". Given the nature of things that the Court has to consider, there are no details in decided cases on how damages for false imprisonment are to be worked out. Generaly, damages for false imprisonment are said to be at large. Damages. re properly left ~o a Judge or the jury, as the case may be, to Betermine. It is also impractical to come with the conventional approach that is characteristic for non-pecuniary damages in personal injuries. Conventional awards are not made on the basis of, for example, in relation to pain and suffering, the pain and suffering, for which there could be different perception depending on the victim, but the similarity of the injury, for example loss of a limb, rib, etc. A conventional approach is justified on that score. The matters that are considered in false imprisonment, liberty and injury to feelings, are likely to vary from place to place and time to time. Damages for false imprisonment are, therefore, properly left to the Judge or jury as the case may be. I said all this because Counsel cited several awards of this Court to assist me in awarding damages in this case. He submitted that on the basis of the awards cited the award in this case should be in region of K300,000.00. I am grateful to Counsel for the cases cited. I think Counsel has been influenced by a number of decisions in this Court and in the Supreme Court of Appeal which seem to establish an approach that awards damages in relation to time. In fact in East Africa and Zimbabwe the approach seems to be equally supported. There have been no decisions of superior courts in the two jurisdictions. As far as I know, the English Courts, and decisions of those Courts are more persuasive in our Courts than others except, of course, for the brief time when decisons of this court were appealable to the Federal Supreme Court and East African Court of Appeal, approach the matter as earlier stated. I have demonstrated before, (Kunyangwa v. Njan~Civil Cause No 403/84 D. R.; Mulenga v. Mwale Civil Cause No 5 ·1/89), and I do not think it helps to do that again, that the trend in the High Court was caused by a misreading of a High Court judgement. The decisions of the Supreme Court of Appeal are not conclusive on the matter. For the reasons I have stated before, the better 4/ ..... -4 -approach is to leave the matter to the discretion of the Judge ,,or jury. ,p There is, however, a quest for uniformity and consistency in awards. Conceptually, there are instances in which these can be achieved. Take for example where victims of the same variables have been subjected to the same treatment for the same length of time. As we have seen, however, there are other variables apart from time. These could influence the award. It is not advisable, in my opinion, to relate awards for false imprisonment in relation to time although time is one of the cardinal factors to be considered. In relation to time, I would say that longer imprisonments, in the absence of attenuating circumstances, should attract heavier awards: shorter imprisonments,in the absence of aggravating circumstances,should attract lighter awards. What should be avoided at all costs is to come up with awards that reflect hourly, daily, weekly, monthly rates. Such an approach could result in absurdity with longer imprisonments and shorter imprisonments where there are attenuating or aggravating circumstances. The approach is to come up with different awards depending on whether the imprisonment is brief, short, very long, etc. and subjecting this to other circumnstances. In the present case the plaintiff was in prison for 2 years and 4 months. This is a long imprisonment. He was tortured at the beginning of the incarceration. He lived in subhuman surrounding. I award the plaintiff K170,000.00 for false imprisonment. As a result of this imprisonment, the plAttiff has lost his job in the Police force. He has not been re-instated. This loss does not emanate from the wrongful dismissal. It emanates from the tort committed by the defendant. Where there is wrongful dismissal, damages can be awarded on other causes of action, where action has been commenced, beyond the normal measure of damages for wrongful dismissal (Addis v. Gramophone Company Limited (1909) A. C. 488). Lord Atkin says at page 496: "In many other cases of breach of contracts there may be circumstances of malice, fraud, defamation or violence, which would sustain an action of tort as an alternative remedy to an action for breach of contract. If one should select the former mode of dress, he may no doubt, recover exemplary damages, or what is sometimes styled vindictive damages; but if he should choose to seek redress in the form of an action for breach of a contract, he lets in all the consequences of that form of action .......... ". 5/ .... -5 -Loss of general business or employment is recoverable in an action for false imprisonment. In Childs v. Lewis (1924) T. L. R. 870, fellow directors demanded the resignation of the plaintiff after he had been put into custody by the defendant. Damages were awarded for loss of directors fees. In this case the plaintiff was dismissed from the Police force. Up to now he has not been employed because he cannot find a job. The defendant should compensate the plaintiff for loss of employment. He was earning K133.00 after tax. His age has not been given. His retirement age has not been given. I award damages for loss of earning capacity of Kl0,000.00. MADE in Chambers this 28th day of January, 1994 at Blantyre. D. F. Mw ngulu REGISTRAR OF THE HIGH COURT OF MALAWI