Mtapira & 4 others v Registered Trustees of Anglican Diocese of Upper Shire (Civil Case 75 of 2010) [2011] MWHC 103 (24 November 2011)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY f CIVIL CASE NO. 75 OF 2010 BETWEEN: EVYLET MT AP IBA. cncccncncnninean-s::0nn RENTER 18T PLAINTIFF EGGREY DAMSON MUMBA es cccisscencescsnswsarerinemesnenaycemeressrew cramer seccecwerecenevere 2ND PLAINTIFF Se eee -ERIC-GCHATHA:<:::. STS SPT eee Toe SST erate rereceursccrssuetteeeuserteccsseses peucvscensnsseenenesees eidRD-PLAI NTIFF-~ ia a aaa GEOFREY KOTOMBA.......0..cc:cscccssssecccsssorsssrcesenesscesanerssenecsssasunsanecdesecessnecerenseaes 41H PLAINTIFF OSIWIN GAYAMBA ....icnnecoccenncaessvenane ene 5TH PLAINTIFF ~ AND THE REGISTERED TRUSTEES OF ANGLICAN DIOCESE OF UPPER SHIRE ................... DEFENDANT CORAM: His Honour S. Mdeza Mr Ngwira, Counsel for the plaintiffs Mrs Mbeta, counsel for the defendant ORDER ON ASSESSMENT OF DAMAGES re tint at nannies niet These proceedings for assessment of damages commenced by way of notice as taken out by the Plaintiffs herein. a. Brief Summary Of Facts By the Statement of Claim herein, the Plaintiffs claimed the following: damages for false imprisonment, special damages and costs of this action. | now outline the facts of the case as ascertained from the Statement of Claim. The Plaintiffs were until 18" May 2004 working at the Defendant's filling station as fuel attendants. A part from Eggrey Damson Mkumba, all the other 4 plaintiffs were employed on 17 May 2000. For over 3 years, the Plaintiffs were reporting about fuel shortages to their immediate boss, Mr. Chaguza, who was then the Accountant at the Defendant's hospital. All shift sheets were clearly showing signs that there were leakages in fuel tanks and _ .......around, the tank of diesel, the soil was very wet signaling that there was a massive leak. Despite cogent... ; explanations from the Plaintiffs at a meeting called by the Defendants management on 24" May 2004, the 1 ata innit see thn hen nee 34 and 4th Plaintiffs were arrested on a charge of theft by servant which was laid at Domasi Police Station by Mr. Chaguza. On-ts'Jurie, 2004 the” 1s; 2n¢ and 5 Plaintiffs’ were also arrested on the same charge and they wete™ ==" brought before Domasi Magistrate Court where they were formally charged with the said offence. The Plaintiffs were released from custody on 5‘ June 2004. Whilst in custody the Plaintiffs were subjected to terrible conditions that were essentially inhuman and degrading. After their released on bail, the Plaintiffs were forced to be reporting for bail in Blantyre and in the process incurring transport éxpenses. The parties having entered into a consent judgment for liability, the matter went for assessment of damages and all the 5 Plaintiffs testified. History Of The Matter The action herein was commenced on 1st June, 2010. The Defendant filed an acknowledgement of service within the prescribed period of time followed by a Defence. Consequently, the matter was due for trial and the parties filed all the necessary documents for the same. Before the matter was called for trial, the parties executed a consent judgment for liability. Consequently, assessment proceedings were commenced and the same were heard on 5th July 2011. Both was reserved. Hence this ruling. ee on ati seepcain ieee debit an eee aa area: ie aie ma ea eteatnatn eS ACY ECP, et AY eR Ee RO NCE IIB] Ape SRI ER oh ot Sepa MINTe A Le ta ae ag ia ae aa General Damages General Principles In arriving at an appropriate quantum of damages, the courts use the principle of restitutio in integrum (Livingstone v Rawyards (1880) 5AC 25). It should, of course be pointed out that the principle is difficult to actuate to perfection. Thus, earl of Hulsbury in The Meduana (1900) ac 133 ac 113 at 116 had this to say: mi “How is anybody to measure pain and suffering in money counted? Nobody can suggest that you can by any mathematical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person undergone by reason of accident....... But nevertheless the law recognizes that as a topic upon which damages may be given” i Sa a O sis ere SReNRIS oe 2a nee carvan car A Sette it beau cain a mm ee Although the above dictum talks of pain and suffering. It is submitted that it (the said dictum) epitomizes the difficulty which courts generally encounter in assessing general damages. However, in order to circumvent that difficult, the courts seek guidance from decided cases of a comparable nature (Wright v British Railways Board [1938] AC 1173. In doing that, of course, the courts bear in mind the devaluation of the Kwacha that has obtained since the awards in those comparable cases were made. All that said, however, each particular case is considered on its merits to avoid occasioning injustice by the inflexible maintenance of consistency and general uniformity in cases of broadly similar nature ( see: D. Kwaitaine Malombe and Another v G. H. Chikho t/a Bec Line Minibus, Civil Cause No. 3687 of 2002 (unreported). Before | deal with specific heads of damages, let me express my indebtness to Counsels for both parties for the case authorities cited before this court, which authorities, have been of great assistance in arriving at the appropriate quantum of damages in this ruling. Damages For False Imprisonment In determining the appropriate quantum of damages under this head, the courts take into account the injury to liberty, that is, the loss of time considered from a non-pecuniary point of view and the injury to feelings, that is, the indignity, mental suffering, disgrace and humiliation. Itis all left to the court's discretion (Maine and Mc Gregor on Damages (12 Ed.), op.cit., para.850). The Manner in which the false imprisonment is # effected may lead to aggravation or mitigation of the damage, and hence of the damages. Lawrence LJ. i BEY AlltOOls [1944] 61 T:L. R 39, at p:40) said'as follows: ~ —— “ any evidence which tends to aggravate or mitigate the damage to a man’s reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man’s liberty; it also affect his reputation. The damage continues until it is caused to cease by avowal that the imprisonment was false.” In that case, the damages were increased because the Defendants had not expressed their regret, had not notified the Plaintiff's fellow-workmen that he has been exonerated from suspicion, and had written a letter es which suggested that the Plaintiffs conduct had been suspicious, and which in effect justified the imprisonment. In Demister (Fred) and Kaunda (Suzgo) vs Merriman International and Wang Qi Zhi Civil Cause No. 3545 of 2004, the Plaintiff was incarcerated in bad conditions in a Police cell for four days (96 hours). The cell was heavily congested and the cell conditions were terrible. He was awarded 300,000.00 for false imprisonment and the award was made on 29% April 2010. In Alick Dumba v The Registered Trustees of the Roman Catholic Church (Zomba Diocese), Civil Cause No..49 of 2009... (unreported), the Plaintiff was awarded K1,000,000.00 for false imprisonment for a period of 138 hours. The award was made on 20% November 2009. It should be emphasized that the length of the period in custody is not the only determining factor in assessing damages under this head. The factors highlighted earlier on are equally important. Coming to the matter at hand, the 1s, 24 and 5" Plaintiff's detention has lasted for 120 hour (5 days) and the 3% and 4th Plaintiffs detention lasted for 288 hours (12 days), the conditions in the cell were terrible. Therefore, taking into account the legal principles outlined above, the case authorities considered above and the particular circumstances of the present matter, | am of the opinion that an award of K950,000.00 each for the 1st, 2. and 5t Plaintiffs and K1,950,000.00 each for the 3 and 4" Plaintiffs herein would be reasonable. Damages For The Expenses (Special Damages) It is trite that not only must special damages be specifically pleaded but they must also be strictly proved oes natn omnne(GONOFAl-Farming Limited-vs Chombo- [1996]-MLR-16.--So,-just like any other-special damages; {hes damages under this head had to be specifically pleaded and strictly prove that the said amounts were spent as claimed. No receipts were produced to substantiate their claim. in the circumstances | find that there is literally nothing on record to show that they had incurred any expenses appropriate to be considered under this head, In view of the foregoing findings, | am of the view that nothing should be awarded under this head. 3 dled rte een, apts hae a a AS ie SSO OR car oR asian nie a em Se EET aan tine b ece dae ica enantio SRY rae nev rn RL TT te meearere uthielid Des peed aheae a apt epee nite” bpm Teta Hee An aca ete Ar Ua tana + = Costs Costs are in the discretion of the court but usually follow the event. The Plaintiffs should have their costs. #ronounced this 24 day of November 2011 at Zomba. itera ka atl SG Llane BSc RS a oe FY. S. Mdeza “t ASSISTANT REGISTRAR a (lishment Lahiri atantdenions Poe obtee 2 ema ) cma = — sane ihe a RP A SE po dha a ne ea ~ =