Hanif Mohammed Bhura and Anor v Yusu Ibrahim Issa Ismail (2008/HP/1170) [2021] ZMHC 119 (28 April 2021)

IN THE HIGH COURT FOR ZAMBIA 2008/HP/1170 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: HANIF MOHAMMED B GILBERT CHIBWE AND YUSU IBRAHIM ISSA ISMAIL THE ATTORNEY GENERAL 1 ST PLAINTIFF 2ND PLAINTIFF 1 ST DEFENDANT 2ND DEFENDANT Before the Hon. Mrs. Justice F. M. Chisanga this 28 th day of April 2021 For the 1st & 2nd Plaintiffs For the 1st Defendant For the 2 nd Defendant Dr. 0 . M. M. Banda of Messrs 0. M. M. Banda & Company Dr. D. K. Kasote of Messrs George Kunda & Company Ms. M. Ndhovu, Attorney General's Chambers JUDGMENT Cases referred to: 1. Syakalima & Katanga & Another 2013/HP/992 2. Hawkin J's dicta in Hicks vs Pawlkner 1881) 8 QBD 169 at 170 3. Holgate- Mohammed vs Duke (1984) 1 ALL E. R. P. 1054 P 1054 4 . Broughton vs Jackson (1951) 18 GB 378, 383 5. McArdle vs Egan and Others (a) Cox's Criminal Law Vol. XXX 1933-38, P.67, 6. Attorney General vs Sam Amos Mumba (1984) ZR Pl4 7. Khalid Mohammad vs Attorney General (1982) ZR. 8. Savenda Management Services v Stanbic Bank Zambia Limited Appeal No. 37of2017. Jl .. 1.0 INTRODUCTION The claim before the court is for damages for wrongful and unlawful arrest, embarrassment, harassment, detention and false imprisonment. In addition to this, the plaintiffs seek damages for defamation, loss of business and freedoms, trauma, pain and anguish suffered during interrogations at the hands of the 2nd defendants' agents. They also crave damage for loss of use of vehicles from 7 th August 2003 to date of repair or replacement, as well as an order to compel the defendants to repair the vehicles, or, alternatively, that the defendants be ordered to replace the vehicles or pay the current value of the vehicles. The plaintiffs, in addition to this, seek an order compelling the defendants to apologise to the plaintiffs through newspapers, radio and television. 2.0 THE PLEADINGS The premise of these claims is averred as follows: Mehrunisha Bhura, is sister to Hanif Mohammed Bhura, the 1st plaintiff. She was married to Yusuf Ibrahim Isa Ishmael, the 1st defendant. However, the marriage later came to grief. Mehrunisha Bhura was registered owner of Mercedez Benz Saloon, Registration No AAK 2955, Engine No. 10398422001289, Chassis No, 129060F015393 red in colour and BMW 320 Saloon Registration No NM 48 (AAM 6415) Engine No. 32550377, Metallic blue in colour. Said Mehrunisha resides in England. She gave a Power of Attorney to the 1st plaintiff over her properties. J2 Yusuf Ibrahim Issa Ismael was deported in 1996, to the United Kingdom. He left most of his properties in the 1st plaintiff's care. But on his return, he falsely and maliciously complained at Woodlands Police Station, that the plaintiffs stole the named vehicles, which he alleged were his. As a result, the plaintiffs were on 7 th August 2003 arrested, embarrassed and harassed in the presence of the public. They were charged with theft of the said motor vehicles by D/Sub/Insp. Sichula. Both plaintiffs were detained for 5 days at Bennie Mwiinga Police Post and Mtendere Police Post respectively. They were subjected to all manner of inhuman treatment during interrogations. They were only released from detention on 19th August 2003, on instructions from the Director of Public Prosecutions, as he saw no merit in the 1st defendant's complaint and report against the plaintiffs. The plaintiffs lost their business as a result. The plaintiffs' arrest was published on page 2 of the Post Newspaper on 20th August 2003, in an article entitled, "Police arrest Bhura for theft of motor vehicle." The arrest was also published on pages 1 and 2 of the Daily mail Newspaper in the article "2 haggle over 80 minibuses." The newspapers were circulated all over the world, and those who know and trust the plaintiff no longer trust them as they think the plaintiffs are thieves. J3 The two vehicles that were seized by the police were vandalized by the 2 nd defendant's agents or servants. The 1st plaintiff lost use of the vehicles from 7 th August 2003, to 11 th March 2005, when they were released by the 2 nd defendant's agent, D/Sub/Insp. Samungole following directives from the Director of Public Prosecutions. The vehicles are non-runners as the result of the vandalism by the 2 nd defendant's agents, and the 1st plaintiff has lost the use of the motor vehicles. The foregoing alleged state of affairs prompted the claims before the court. The 1st defendant asserted in his defence, that Mehrunisha Bhura did not, nor had she ever owned the vehicles in question. He explained that upon his deportation, which was preceded by detention, he instructed his estranged wife, Mehrunisha Bhura, to hand all his properties to his lawyers. She did not do so, and instead, distributed his properties to her relatives who included the 1st plaintiff. She did this without his perm1ss1on or knowledge. It was when the Deportation Order was revoked in 2003, and the 1st defendant reprieved, that he discovered this state of affairs. He also found that Certificates of Title had been transferred into Mehrunisha Bhura's name without his knowledge or permission. This compelled him to make a complaint at Woodlands Police Station. The police conducted their own investigations. At the time of his complaint, the vehicles were non-runners and towed from the 1st J4 'I plaintiffs residence to the police station. These vehicles were, however, runners when the 1st defendant was deported in December 1996. The 1st defendant has denied preferring the complaint falsely or maliciously, averring instead that his complaint was genuine . He denied any knowledge of the publications, was in Britain at the time they were made, and did not even read them. In addition to this, he had not seen the motor vehicles since 2003, when the police towed them to Woodlands Police Station. The 1st defendant urged the court to dismiss these claims. The plaintiffs reply to this defence was that the 1st defendant came to Zambia in March/ April 2003. They also asserted that the 1st defendant legally and lawfully transferred some properties in Mehrunisha's name . They explained that the police were availed with documents that showed that the vehicles were the properties of the 1st plaintiffs sister, and that the 1st defendant appeared in the white books as co-owner, but the police ignored the documents and proceeded to arrest and detain the plaintiffs. The 2nd defendant's defence was that the police acted on a complaint that the 1st plaintiff had motor vehicles in his possession suspected to have been stolen or unlawfully obtained. After investigations had been carried out, there was reasonable and probable cause to suspect that the plaintiff had committed the offence of theft. The 2 nd defendant has denied J5 the claim that the vehicles were in perfect runmng condition. It was averred that the 1st plaintiff produced forged documents in an attempt to explain how the motor vehicle came into his possession. In the circumstances, there was reasonable and probable cause to arrest and charge the plaintiff with theft of the said motor vehicles, as is the duty of police to do. Moreover, the police had no control over what is published in the Newspapers. In reply to the 2 nd defendant's defence, it was averred that: At the trial, the 1st plaintiff testified largely as averred in the statement of claim. He elaborated that Mehrunisha Bhura left for the UK in 1999. This was because her husband had ejected the children from the house, and put his girlfriend there. Mehrunisha separated from him from that time. In 2002, she sent him a power of attorney, to look after her properties, and dispose of them when she gave him instructions. He referred to the power of attorney and explained that he has been def ending her properties using the said power from 2001. He narrated how the police called him to enquire about Mercedez Benz AAK 8955, BMW NM48 and other vehicles, namely buses. He referred to pages 33, 38 and 39 of the plaintiffs bundle of documents, and observed J6 that the registered owner was Mehrunisha Bhura. The plaintiff informed the court that he explained how he came to be in possession of the vehicles, and invited them to, without a search warrant, inspect the vehicles. He showed them the power of attorney. He went on to state that there were three vehicles in the 1st defendant's names, namely a Mercedez Benz, white in colour 300, one Tata Truck and one Motor Bike. The plaintiff requested the police to ask the 1st defendant to collect his vehicles. The latter sent his illegitimate son from another woman, Imitez Issa, to collect the vehicles. The 1st plaintiff called the police to witness the handover of the vehicles. The son collected the vehicles while the 1st defendant had parked his vehicle outside the yard. Some weeks passed, and another lot of officers from Woodlands police Station went to his home with a warrant on 7 th August 2003. The 1st plaintiff showed them all the documents, that is the white books, RTC records and the power of attorney. He showed the court the search warrants at pages 20 to 21 of the plaintiffs bundle of documents. The 1st plaintiff advised the police to first investigate the matter as Central Police had already investigated and left the vehicles, as they were satisfied that the vehicle belonged to his sister. The 1st plaintiff refused to give the keys to the police, who later came and towed the vehicles. J7 On 15th August 2003, Police went to the 1st plaintiffs home and took him, saying this was for purposes of investigations. They asked him to show them where Gilbert Chibwe his friend lived. The 1st plaintiff, surprised at that request asked them what they wanted Gilbert Chibwe for, and the response was that they needed him for investigations. The 1st plaintiff took them to Gilbert Chibwe, the 2 nd plaintiff. The police asked him to accompany them in his pyjamas, but he insisted that he could not come along until they allowed him to dress. They relented, and allowed him to dress up. After this, Gilbert was dropped off at Mtendere Police Station, while the 1st plaintiff was taken to Bennie Mwiinga. His statement was taken. His brother Dr. Bhura came. The 1st plaintiff was locked up in the cells for the vehicles. The following day, Imitez Issa, the 1st defendant's son went to the cells to threaten the 1st plaintiff, and urge the cell mate to sort the1st plaintiff out. On 19th , he was taken to Woodlands Police Station, and the 2nd plaintiff was also brought in. After waiting for a couple of hours, they were released. To the 1st plaintiffs surprise, an article was published in the newspaper on 20th August 2003, where it was alleged that the 1st plaintiff stole 80 buses, which he had never seen, having known only of a few, Mercedez Benz and other cars. He referred to the articles at page 24 of the plaintiffs bundle of documents. His friends called him to find out what J8 that was. Some asked him how he could change his sister's vehicles into his name . His lawyer, the late Meebelo Kalima wrote several letters to the Attorney General for the release of the motor vehicles. He also wrote a letter to the officer in charge at Woodlands Police to stop using the vehicles. The vehicles were released in 2005, but they were damaged. So the 1st plaintiff asked them to write a letter on the damages. They refused, but after arguing with them, they entered it into the OB Book. The 1st plaintiff took mechanics to the police station, with some spares. They started the vehicles and drove them one by one, and parked them at the plaintiffs house. 3.0 PLAINTIFF'S CASE The 1st plaintiff testified that he was surprised, because the 1st defendant always left his goods with the 1st plaintiff or his family whenever he left the country. When the 1st defendant was first deported in 1986, it was the 1st plaintiff and his family who looked after all his property. The 1st plaintiff testified that he had not even changed the properties into his own name although he had power of attorney. He asked the court for all the reliefs. J9 When cross examined, the 1st plaintiff asserted that his family suffered on account of his arrest, and that the offence was unbailable. He felt traumatised. He was informed that he had stolen the vehicles, and transferred or had possession of the vehicles. His sister took them to his house. They were runners. He didn't know when his sister got the vehicles, nor whether she or the 1st defendant bought them. She left the books with him. He changed the books appearing at pages 33 and 38 when Government introduced changes. When referred to page 2 of the 1st defendant's further bundle of documents on 26th November 2013, he observed that the vehicle referred to was a Mercedez Benz, consigned to Yusuf Issa. That was the same motor vehicle that was in issue. He conceded that it was ordered in Yusufs name. The 1st plaintiff was not there, and the only papers he had were the ones that showed his sister's name. He did not know when the papers were transferred. The deed of Gift was included to show that she had left a power of attorney in his name. According to him, Issa was wrong to complain because he was aware that the 1st plaintiff was looking after the vehicles. The witness testified that he was a businessman, with properties in his name on rent. He also runs an egg industry. The 1st defendant runs a wholesale. The witness explained that he collects rent from Shop 1578. During his incarceration, his son kept running to the egg industry to feed the chickens at the farm. He informed JlO the court that he had not brought the leases, or any other contracts, but maintained that his businesses were affected. When cross examined by counsel appearing for the state, he testified that he had not provided any statement of account before the court. In re-examination he pointed out that the date on page 38 was 1991 as year of first registration, while at page 39, the date was 1997. The second witness was PW2, the second plaintiff. He informed the court that his claim was as per the statement of claim. He was arrested in the morning of 15 August 2003, at his residence, Plot 317 Kabwata Site and Service. A Mr. Mangubi and two others came. Mr. Bhura was inside the vehicle. PW2 was taken to Mtendere Police Station. Mr. Mangubi informed him that he was being arrested for theft of the motor vehicle, on a complaint from Yusuf Issa. When PW2 asked the officer to be specific, the latter retorted that the details would be availed later. Around 17:00 hours, he was transferred to Lusaka Central Police Station. Detective Sichula advised PW2 to cooperate with the police as the main target of the investigation was Mr. Bhura, the 1st plaintiff. On 18th , around 17:00 hours, he was taken to Woodlands Police Station where he spent a night. A statement was recorded from him on the 19th , and that was when he learnt that the vehicles he had allegedly stolen Jl 1 were a BMW NM 48 and Mercedez Benz MK 8955. PW2's response was that he had never driven the vehicles nor had them in his custody. An hour or so after that, he was released. Mr. Bhura was his friend and they do joint projects from time to time. He had not been charged for the offence to the time of trial. He asked to be granted relief as claimed. In cross examination he said Mr. Mangubi informed him at the time he was arrested and taken to Mtendere that he was picked up in connection to the charge on 15th . He came to know specifics on 19th . PW2 said knew very little about the vehicles. He knew that the 1st plaintiff used to drive the vehicles from time to time. He asserted that Mr. Yusuf Issa complained to police and police, who did not fully investigate the matter denied him his rights, only taking a statement from him after 4 or 5 days. Mr. Yusuf defamed him by complaining to the police. He saw the articles in the newspapers. They defamed him, the 1st plaintiff, and the owner of Metro Express. Mr. Issa could complain about truthful matters and not about wrong ones. He was an IT service provider to the Ministries of Legal Affairs and Local Government at the time. His documents were not in the bundle of documents. No other witness was called for the prosecution. J12 4.0 THE DEFENDANTS CASE Mr. Yusuf Ibrahim Issa Ishmael was the 1st defence witness. He testified that he was deported twice from Zambia, in 1990, and 1996. Before this, he was in the mining and transport business. He also owned a shop in Thorn Park. He used to own trucks and mini buses, as well as cars. When he was deported, he left all his things at his house in Bende Road Olympia Extension. His wife remained there with the children. However, on his return in 2003, he did not find any of his properties there. He found different people renting the house. The 1st plaintiff was driving his vehicles in town. He also found that all his things had changed hands and names, and title deeds of the house had changed hands and ownership, into his wife's name. Even the vehicles had been changed into her name. When referred to page 6, he denied donating his house to his wife, or his cars. He referred to page 33 of the plaintiff's bundle of documents and stated that he did not know how that vehicle had ended up in Mehrunisha Bhura's name. He referred to page 39 and explained that he ordered the Mercedez Benz though Star Motors. He paid £2,700 for it to be delivered in a container to Lusaka. He referred to the delivery instruction, showing that the vehicle was consigned to him Yusuf Issa, in February 2002. He did not know when it became his wife's motor vehicle. He just saw Bhura driving the vehicle. When he was deported in 1996, J13 the vehicle was still in his name. He had bought the BMW as a gift for his daughter, Nasima Yusuf Issa. He complained to the police that his vehicles had been removed from his house without his permission and knowledge. He expected them to get his permission as the owner. He went on to testify that one of his mechanics informed him that Bhura had produced a gun, threatening to shoot anyone who would try to stop him. The 1st defendant also informed the police that the 2 nd plaintiff collected a minibus from his house. He complained to four police stations but three had lost the dockets. Woodlands police only had taken up the matter. As for the vehicles collected by his son, the witness did not know where he took them. He explained that he was out of the country when the plaintiffs were arrested, and the article published. He did not know who informed the newspapers. He went on to assert that the 1st plaintiff was not a businessman but just roaming, loafing in town and relying on other people's money by collecting other people's property. The 2 nd plaintiff was the same. They were always found together. The 1st plaintiff was talking about property that belonged to his father. He just used to drive his mother from the house and sit in the car and smoke cigarettes. J14 When cross examined, the 1st defendant testified that his report was on the changed ownership. The vehicles were in is names and the 1st plaintiff was refusing to give them to him. He wondered because he had never given a letter of sale to his wife, the 1st plaintiff or anybody. The vehicles were not returned to the 1st defendant. The 1st plaintiff had a friend a Mr. Zoar, who directed that the vehicles be released. In further cross examination, he testified that Mehrunisha Bhura was his wife on paper but she was no longer with him. They were in the process of divorcing. He was deported when his wife became an informer to the government. When referred to his bundle of documents, he said he ordered the vehicle earlier and gave instructions in 2002. 2002 was the address, but he made a mistake, the date was June 1996. He said page 39 of the plaintiff's bundle indicates 26/06/97. He said there must be another book. He said at page 38, the date was 1997, although it was not very clear. There was no record at RATSA. The vehicles were not registered in his name because the C. C. were still with him, they were waiting for customs to clear the vehicle in 1997. The vehicle arrived in 1996 just before his deportation. It took the manufacturer one year and three months for delivery. The date on the bill of lading was 16th July 1990. The vehicle was ready after three months. The bill of lading showed that the vehicle was J15 shipped in 1990, in July. He was out of the country. The vehicle was cleared in Chirundu. They had no documents. The vehicle was on CC form. It was not registered. He came back in 2002. Customs could not give them the documents, saying they had to get a court order. All the documents remained with his wife when he was picked up. So she knew what she did with the documents. As for the BMW, he gave his daughter a gift. He had reported his son to the police but they had done nothing. The basis of investigations was the change of ownership. Mehrunisha had run away and given a fake power of attorney to her brother. He denied having said what was reported in the paper. When re-examined, the 1st defendant explained that when he ordered the Benz, he made a payment in Germany. He couldn't remember the date as the case had taken long. The vehicle was to be delivered in Zambia in 1990. They were not registered because they were waiting for customs clearance. Then he was deported. He came to Zambia in 1992 - 1993. He couldn't remember when he married Mehrunisha. His first born child was 32 when she passed away 9 years ago. She was born in Zambia, and he married in Zambia. He was not sure when he first came to Zambia. It must be between 67 and 69. His father was in Zambia Railways before 64. He couldn't remember when he got married to Mehrunisha. J16 DW2 was Benedict Bweupe Sichula, an Inspector of Service No 8777. He recalled that on 7 th August 2003, he was approached by detective sergeant Mangubi, Constable Mutumba and Constable Chabota Ben. They informed him that there was a matter that required a search warrant. It was about a suspected stolen motor vehicle alleged to have been hidden in Madras Area, along Burma Road. As the senior most police officer, he prepared the search warrant which was duly signed by the magistrate. Afterwards, they went to Plot 5897 Burma Road where they found the owner of the house, Mr. Hanif Bhura. Mr. Bhura phoned his lawyer Meebelo Kalima, who came. Then they proceeded with the search and seized motor vehicles, a red Mercedez Benz, 300S2 Registration No MK 2955, and a MBW 318, blue in colour 318, Registration No. MM 6415. As the vehicles could not start, they were towed to the police station. When asked for documentation for the vehicles, Mr. Bhura said they would be availed later. When asked how he came in possession of the vehicles, Mr. Bhura said that they were taken to his place by Mr. Gilbert Chibwe. When they had finished their business, Mr. Bhura was asked if he was happy with the conduct of the search, and his response was that he saw no justification or reason for seizure of the vehicles before establishing ownership with RSTA. J17 The police continued with their investigations, and Gilbert Chibwe was detained on 5 th August. The dealing officer was Sergeant Mangubi, and the two individuals were charged and detained for theft of motor vehicles. He referred to the search warrant in the plaintiffs bundle of documents. In cross examination, he testified that the vehicles were parked at the police station for 2 years. He said he did not have sight of the white book. During investigations the officers who began the investigations were not present when the plaintiffs were released. DW3 was Joshua Mangubi, a detective Sergeant No 32298. He testified that he received information that a person had in his possession two motor vehicles parked at his residence and concealed in a tent in Madras Area along Burma Road. A search warrant was procured and the group of officers proceeded to the place with the search warrant. They found Hanif Bhura. He demanded that the search be conducted in the presence of his lawyer, who he called, and he came. The search was conducted and the two motor vehicles towed to Woodlands Police where they were parked pending investigations. Hanif Bhura had informed them that the vehicles were taken there by Gilbert Chibwe. On the 7 th , the very day, Mohammed Hanif Bhura brought photocopies of the registration books showing a red Mercedes Benz J18 registered in the name of Mehrunisha Bhura while a BMW was registered in the name of Steven Chungu. During the course of the investigations, a man, Ishmael Yusuf Issa came to the police station and claimed ownership of the two motor vehicles. He produced primary documents which were in his name as support for his claim. These were the bill of lading, invoice and some correspondence from the agents who were Khune Nagna and Star Motors, agents of Mercedez Benz at the time. He referred to the 1s t defendant's further bundle of documents dated 26th November 2013, at pages 1-4, as the documents he was referring to. The witness went on to testify that he interviewed Mr. Yusuf Issa further. The latter indicated that at the time of his deportation, he had not registered the red Mercedez Benz, and it was parked at his residence in Olympia, whilst the blue BMW indicated that he bought it for his daughter who passed on, and after her death, he retained ownership of the vehicle, and parked it at Olympia. He also explained that at the time he was deported, he was not given ample time to secure his property and when he had successfully challenged that order, he returned to Zambia. That is when he discovered that some of the properties were missing and his relatives fraudulently transferred ownership of some of the properties in his name. In his investigations, DW3 went to the council, which was an agent of RATSA at the time, and discovered that the Mercedez Benz was registered in the J19 name of Mehrunisha Bhura, but it had no supporting documents, and what was astonishing was that at the council Form R34 revealed that the handwriting of the licensing officer and that of the applicant were the same. The witness submitted the documents to a handwriting expert who confirmed that it was for the same person. Upon establishing this irregularity, DW3 extended his investigation to Star Motors and Khune Nagna, a clearing and Forwarding Company. These two compames confirmed that they had dealt with Yusuf Issa as their client. He extended his investigations to ZRA, and it was confirmed that it had dealt with Yusuf Issa and the red Mercedez Benz. DW3 also interviewed the care taker of the property of Mr. Yusuf Issa where the motor vehicles were parked. The caretaker, Matakala, indicated that Hanif Bhura, while in the company of Gilbert Chibwe went to collect the motor vehicles claiming they were given the motor vehicles. DW3, through Interpol, requested that Mehrunisha Bhura avails herself for interviews, so that she could be interviewed. Despite this, she never availed herself, the witness only hearing that she used to sneak in and out of the country. In the course of investigations, Mohammed Hanif Bhura with his colleague came to the police and produced a forged bill of lading accompanied by a delivery instruction from Kuhne and Nagna. It J20 was supposed to read, Yusuf Issa. Instead, they erased Yusuf Issa and inserted the names of Mehrunisha Bhura. This particular document was confirmed by Kuhne & Nagna, Star Motors and ZRA that the document was a forgery. In addition to this, two powers of attorney were produced, in which Mehrunisha Bhura allowed Hanif Bhura to take care of her properties. These two powers are not originals and were not certified. This raised suspicion. Also, it was learnt that the document produced by Mohammed Hanif Bhura was forged by Hanif Bhura and his colleague Gilbert Chibwe. This led to the detention, and charging of the two individuals. However, there were external forces at play. The docket of case was called by Mr. Muntemba the DCIO through the CIO. Mohammed Bhura and Gilbert Chibwe were dubiously released on the same day, and the docket never came back. To date, DW3 had not seen the column in the Arrest Prisoner's Property book going by the number that was given. He has not seen the person who released the two suspects and the grounds of their release, as well as the occurrence book in which details of suspects are entered when they are arrested and released. J21 \ - DW3 referred to the two powers of attorney at pages 18 to 19 of the plaintiffs bundle of documents, and the registration books at pages 33 and 39. He explained that the documents which were allegedly prepared by Mehrunisha Bhura did not bear her handwriting. The handwriting on the form for registering the vehicle, and that appearing on the other document was not hers. When cross examined, DW3 testified that Mr. Bhura did not give any reason why Chibwe drove the motor vehicles to his resident. DW3 was informed the two were old friends. He was not informed as to who lodged the papers, but according to the details, it was Mehrunisha Bhura. When he enquired about the handwriting being same, he was informed it was an irregularity. He drew Mr. Bhura's attention to the state of the documents. The vehicles were non-runners, and were towed. He was unable to call the handwriting expert because the report was issued, and it was in the case docket. In further cross examination, the witness informed the court that Mr. Sichula was not present when the white books were brought. DW3 was the lead investigator. He went to RATSA, and discovered that the BMW was registered in the name of Chungu. He did not interview him as he J22 ., was not present at the time. He sold the vehicle to Holy Burges, and Holy Burges sold them to Yusuf in turn. DW3 went on to testify that Mr. Bhura was deported in 1986. The vehicles were purchased in 1990. It appears he bought the vehicle four years after deportation. He did not obtain handwriting samples from Hanif and Chibwe. It was not established that the handwriting was for either of these two. Matakala was interviewed in 2003, who said Mehrunisha was not present when the vehicles were collected. Mr. Issa informed him that the vehicle was not registered at the time of his deportation. One of the properties that were transferred was a house and he won in that matter. Hanif Bhura was convicted of fraud related charges. When re-examined, he was referred to page 30 of the plaintiffs bundle of documents, and he stated that the document was a handover certificate. 5.0 DECISION OF THE COURT I have considered the pleadings and the evidence led in prosecution of, and defence of the action. J23 '\ . A person who 1s unlawfully imprisoned may bring an action for false imprisonment. He need only prove that he was imprisoned by the defendant. The defendant then bears the onus to prove a justification for depriving the plaintiff of his liberty. This requirement was referred to in Syakalima & Katanga & Another1 , premised in Hawkin J's dicta on Hicks vs Pawlkner2 as follows: " ... In false imprisonment, the onus was upon the defendant to plead and prove affirmatively the existence of reasonable cause as his justification, whereas in an action for malicious prosecution, the plaintiff must allege and prove affirmatively its non-existence ...... " ".... Now I should define reasonable and pro/able cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. There must be: first, an honest belief of the accuser in the guilt of the accused; secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion; thirdly, such secondly-mentioned belief must be based upon reasonable grounds: by this I mean such ground as would lead any fairly cautious man in the defendant's situation so to believe; fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused .... the question of reasonable and probable cause depends in all cases, not upon the actual existence, but upon the reasonable bona.fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of-no matter whether this belief arises out of the recollection and memory of the accuser, or out of information furnished to him by another. It is not essential in any case that facts should be established proper and fit and J24 ') - admissible as evidence to be submitted to the Jury upon an issue as to the actual guilt of the accused." Holgate-Mohammed vs Duke3 affords guidance on the exercise of discretion by a police officer in arresting a person. Lord Diplock explained in that case that whether a police officer has reasonable cause to suspect, individual is a question of fact. He went on to state that the words "may arrest without warrant' , left the officer with a discretion . Whether he exercised his discretion lawfully cannot be questioned in a Court of law except on the principles laid down by Lord Green M. R. in Associated Provincial Picture House Ltd Wednesday Corp (1947) Green 2 ALL E. R 680. The Court found that the constable properly exercised his discretion in effecting the arrest. The facts of the said case were as follows: The appellant was a lodger in a house from which some jewelry was stolen. Some months later the owner of the jewelry recognized it in the window of a jeweler's shop and informed the police. The jeweler's description of the person who sold the jewelry to him was thought by the owner of the jewelry to fit the appellant. From that, a detective constable investigating the owner's complaint considered that he had reasonable cause for suspecting that the appellant had stolen the jewelry, but also J25 l . considered that the jeweler's evidence alone would not be sufficient to convict the appellant. He therefore decided to arrest the appellant in the belief that she would be more likely to confess to the theft if she was arrested and taken to a police station for questioning than if she was merely questioned in her home. The constable accordingly exercised his statutory power to arrest the appellant without a warrant. She was then taken to a police station and interrogated. No evidence was obtained, linking her with the crime, and she was released about six hours later. She sued for damages for false imprisonment. She succeeded. On appeal to the Court of Appeal, the defendant succeeded. The House of Lords upheld the decision of the Court of Appeal and dismissed the appeal, the judgment being read by Lord Diplock as earlier stated. The principles distillable from the cited case are that a police officer may only arrest a person without a warrant, where there is reasonable cause for suspicion. For reasonable cause to arise, the police officer must entertain an honest belief, premised on an honest conviction that circumstances exist, leading to that belief. That said, an officer is not bound to wait until he is in possession of such evidence as would be admissible and sufficient for prosecution of the offence to conviction, or even of the best evidence which he might obtain by further enquiry. The J26 l • last point is illustrated in Broughton vs Jackson3 where it was stated as follows: "it does not follow that, because it would be very reasonable to make further enquiry it is not reasonable to act without doing so." It was also stated that a defendant must show, "facts which would create a reasonable suspicion in the mind of a reasonable man." In McArdle vs Egan and Others4, it was stated that, a constable may arrest a person without a warrant if at the time of effecting the arrest he has reasonable and probable cause to suspect that a crime has been committed, and that the person arrested is guilty of it. Lord Wright expressed the position of the law as follows at page 69. " .... So that the enquiry is as to the state of mind of the chief constable at the time when he ordered the arrest, and the enquiry involves that it must be ascertained what information he had at the time, even though that information came from others. Of course, the information must come in a way which Justifies him in giving it credit; the suspicion upon which he must act, and indeed, ought to act, in the course of his duty, must be a reasonable suspicion ..... On the other hand, it has got to be remembered that in the public interest, it is very important that police officers should be protected in the reasonable and proper execution of their duty; they should not be hampered or terrified by being unfairly criticized if they act on a reasonable suspicion..... It has to be remembered that police officers in determining whether or not to arrest, are not finally to decide the guilt or innocence of the man. Their functions are not judicial, but ministerial and it may well be that if they hesitate too long when they have a proper and sufficient ground of suspicion against an individual, they may lose J27 .... an opportunity to arrest him because in many cases steps have to be taken at once in order to preserve evidence. I am not saying that as in any way justifying hasty or ill-advised action. Far from that, but once there is what appears to be a reasonable suspicion against a particular individual, the police officer is not bound as I understand the law to hold his hand in order to make further enquiries if all that is involved is to make doubly sure". Here at home, in Attorney General vs Sam Amos Mumba5 , The Respondent was arrested without warrant by the police. He was not informed the ground for his arrest until about six hours after the arrest. It was held on appeal as follows: i. Where a police officer makes an arrest without warrant, it is incumbent upon him to inform the person so arrested of the grounds for his arrest unless he himself produces a situation which makes it practically impossible to inform him. ii. Failure to inform the arrested person as soon as is reasonably practicable to do so at the time the reason for his arrest will, in a proper case, constitute false imprisonment. iii. It is not enough where a police officer makes an arrest without warrant, that a police officer has reason for effecting an arrest without a warrant if such reasons are kept to himself, or if the reasons given are not true. In either situation, such a police officer may be held liable for false imprisonment. Turning to the present case, the plaintiffs were apprehended, and arrested on the complaint of the 1st defendant, that his two vehicles had been stolen or unlawfully obtained by the 1st defendant. The search warrant reveals that, Sichula had informed the magistrate that Hanif Mohammed Bhura had in his possession motor vehicles suspected to J28 ... l - have been stolen or unlawfully obtained at plot 5897 Burma Road in Kabwata. The police were shown the primary documents for the Mercedez Benz. The 1st defendant's bundle of documents has in it delivery instructions for one Mercedez Benz, dated 24 th July, 1990. The Mercedes Benz subject of these proceedings was consigned to Yusuf Issa of Lusaka Zambia. The letterhead is for KUHNE & NAGEL. The said bundle of documents also contains a copy of a bill of lading dated 16th July, 1990 for the said motor vehicle. That Mr. Yusuf Issa purchased the vehicle in borne out by the letter dated 18th June, 1990 from Star Motors Limited to Yusuf Issa. Star Motors Limited confirmed the payment made by Mr. Yusuf Issa for production of a Mercedez Benz Model 300SL, as well as the balance that he had to pay. This letter is in the 1st defendant's further bundle of documents. There is also a document headed delivery instructions on KUHNE & NAGEL letter head . The next document is a telefax return from the said KUHNE & NAGEL. It was for the attention of Mr. Yusuf Issa concerning a Mercedez Benz shipping charges. J29 I In addition to this, DW2, Inspector Shula, extended his investigations to the council, which was an agent of the Road Transport and Safety Agency (RATSA) at the time. He discovered that the Mercedez Benz was registered in Mehrunisha Bhura's names but had no supporting documents. He was astonished to note that the council form R34 revealed that the handwriting of the licensing officer and that of the applicant were the same. Zambia Revenue Authority (ZRA) confirmed that it had dealt with Yusuf Issa regarding the Mercedez Benz. In addition to this, the care taker, one Matakala informed DW2 that Hanif Bhura went with Gilbert Chibwe to collect the motor vehicles, claiming they were given the vehicles. On this evidence, I entertain no doubt whatsoever that DW2 had reasonable suspicion that the vehicles in the possession of Hanif Bhura had been either unlawfully obtained, or stolen. As the law stands, DW2 was not obligated to hold his hand, so as to make further enquiries. It is common cause that the 1st defendant was deported in1996. The evidence is that he had no opportunity to put matters in order. The white book at page 38 of the plaintiffs bundle reveals that the vehicle was first registered on 25th June, 1997. The first owner was not indicated as Yusuf Issa, who had purchased the vehicle. Hanif Bhura, who had a J30 I ....,, power of Attorney for Mehrunisha Bhura did not have documents or information as to how the property that had been purchased by Yusuf Issa had been registered in Mehrunisha Bhura's name. On the foregoing facts, I perceive no bad faith or Wednesbury unreasonableness on DW2's part in apprehending and arresting the 1st plaintiff. The same applies to the 2nd plaintiff. The information from the caretaker disclosed that the 2 nd plaintiff assisted the 1st plaintiff to move the vehicle. The 1st plaintiffs testimony was that his sister followed the 1st defendant to the United Kingdom after the deportation, because the 1st defendant had evicted his children from their home, and put his girlfriend there. Even the unauthenticated power of Attorney reveals that, it was granted in January, 2003. If Mehrunisha was out of jurisdiction at the time and the vehicles were collected by Hanif Bhura, it was reasonable that someone would assist him to drive them from the house where they were . If Matakala informed the 1st defendant that the 1st and 2 nd plaintiffs collected the vehicles, and he in turn informed the police that this is what had occurred, it was reasonable for police to suspect that he was somehow involved. J31 , ... .. It must be remembered that the functions of the police are ministerial and not judicial. They are not required to proceed in the manner that Courts do. Rather, they are only required to act reasonably. I see no irrationality, illegality or bad faith on their part. The tort of false imprisonment has as a result not been established. I turn to the claim concernmg loss of use of the motor vehicles. It is indicated that the motor vehicles in question were collected on 7 th August 2003. Although the plaintiffs were released on the 19th August 2003, the motor vehicles were retained by the police. The defence witness expressed ignorance as to how the plaintiffs were released from custody. He said the docket was not seen afterwards. That notwithstanding, it is indisputable that it was decided not to prosecute the plaintiffs. The motor vehicles should therefore have been released soon after the plaintiffs' release. This having not been done and it being the police's intention not to prosecute the matter, retention of the motor vehicles became unjustified. The 1st plaintiff admits that the vehicles were towed to the police station, but explains that this was on account of his refusal to release the keys to the police. The letter from his advocates, Messrs Kalima Chambers, written on 9 th November 2004 alludes to the misuse of the BMW by a CID officer, whereby the said vehicle was damaged. There was no response to J32 . this letter. In some instances, lack of a response to a letter when one is required is evidence that there was some truth to the allegation. In this case however, the lack of response does not assist the 1st plaintiff. This is because having withheld the keys to the vehicles as he asserts, the onus to prove that notwithstanding, the police still managed to drive the vehicles lay on him. He could have called a witness to prove this, even the mechanic who he says he took to the police station to fix the vehicles. There is a gap in the evidence, and this must react against the 1st plaintiff. In the circumstances, the element of damage and misuse of the vehicles has not been proved. I turn to the claim for loss of use. As vehicles were towed, and no evidence has been led to prove that they could be driven, the basis on which to award damages for loss of use is non-existent. However, the defendant wrongfully withheld the motor vehicles from the 1st plaintiff. He was deprived of possession of the vehicles, I must state however that this element was not pleaded. It is impermissible to award damages for relied that is not pleaded per Savenda Management Services v Stanbic Bank Zambia Limited9 • I turn to consider the claim of defamation. The allegation in paragraph 11 of the statement of claim that the plaintiffs arrest was published on page 2 of the Post Newspaper dated 20th August 2003, under the title: J33 . ! • •• 'Police Arrest Bhura for theft of Motor Vehicle.' No evidence was led as to who informed the Post Newspaper reporter about the alleged theft. The element of publication has not been proved by the plaintiffs as a result. The claim is in that regard unsustainable. 4.0 CONCLUSION On the foregoing discussion, the plaintiffs' claims are dismissed. In the circumstances each party will bear their own costs. Dated the ... ~ :day of .. ~~~ ... 2021 F. M. CHISANGA HIGH COURT JUDGE J34