Chongo v People (SCZ Appeal 33 of 1987) [1991] ZMSC 50 (18 February 1991)

- J " ’ ; - IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 33 of 1987 ■».“ ■■ - V-' r I i H HOLDEN AT LUSAKA -------------- BETWEEN: i . . . A. ; ; JOHN CHON6O and ? THE ATTORNEY GENERAL ‘ 4.- IS CORAM: Gardner J. S., Bweupe, Ag. J. S. and Challa U. S. • ■ Mr. J. L. Kabuka, Forest Price & Co. for the appellant .. > 9th Dec. 1987 and 18th February, 1991. I ; ; Mr. R. Okafor, Senior State for the State ' ■ (_ . --------- -- -------------- , ----------- , —............................ ...........................—---------------- ----------------------------------------------- : . , * ... Challa, J. S. delivered the Judgment of the court. JUDGMENT , . u .. .. _ ■ - - _ Cases a? referred to: .... “•i-......... ■ ■1 ; ■ ■ i , (1) (2) Nkhata v The Attorney-General 1966 Z. R. p 124 Gaynor vs Cowley (1971) Z. R.,50 • • The appellant Is appealing against the decisions of the High Court which awarded him K300 damages for malicious prosecution in one instance and K500 damages for both faBe Imprisonment and malicious prosecution in another. He is also appealing against the learned trial judge’s decision to dismiss another of his claims for damages for false imprisonment. The appellant, hereinafter referred to as the plaintiff, was at the material time a Branch Manager for Agro Mining Limited; he also ran a private business selling cigarettes under licence. He had both retail and commercial licenses. On 8th February 1983 whilst on his way home around 2100 hours he saw a group of policemen in a small shelter /2............. J2 - by the roadside, and also a group of men who were coming from the opposite direction. Suddenly the police came out of the shelter and said to him "Stop, this is the police, hands up." The plaintiff stopped about 100 metres away from the group. The approaching men were ordered to get Into the shelter. The plaintiff remained where he was. The police shouted at the plaintiff telling him to join the others in the shelter. About three hours after being kept in the shelter, one of the men, a Mr. Winter Mulenga asked whether the group was under arrest; he was told to keep quiet and that the police intended to capture all persons coming from the Bush Baby Restaurant from where the group had come. The men then marched from the shelter to a Disco club called Peaches Disco. However, on the way the police were informed that that particular club was closed. The group was marched to the police station where they arrived at about 0100 hours. At the police station everyone was ordered to take off his shoes, belts and other items. The names were taken and the men were told to tell their stories and that if their stories were genuine.they would be released. The group spent a night in custody and the following morning they were charged. The officers told the plaintiff and his colleagues that those who had money could pay admission of guilt fines and would be released. The plaintiff paldK8 for the charge of being drunk and disorderly. {The plaintiff complained that since he did not drink liquor it would not be possible for him to have been drunk; but he was threatened with continuing imprisonment if he continued to object. The plaintiff was then released. He took the • papers to the clerk of court at the Magistrate’s Court. A few days later he received a refund of K8 and was advised to report to the police station. When he reported the plaintiff was detained and he was refused release on police bond by a sergeant. However, a senior police officer ordered the sergeant to release the plaintiff on a police bond. Later, at the Local Court, the charge was altered from being drunk and disorderly to ’nuisance by a drunken /3...person*. | ' - J3 - person*. He was tried and was fined K20. He appealed to the Subordinate Court and he won his appeal. The plaintiff further maintained that before his appeal was heard he was harassed by the police. This was on 27th April 1983 when he on his way to Mplka. He heard the same sergeant who had detained him at the police station running after him shouting “Stop or I will shoot.h The plaintiff stopped and a plain clothes police officer approached him and grabbed him by the collar of his shirt. He was told to accompany him. The plaintiff was later taken to the police station for questioning. The plaintiff spent a night at the police station until the following day. He was taken to the Local Court where he was charged with the offence of conduct likely to cause a breach of peace. After that he was taken to his home where a search was conducted and 46 cartons of Guards cigarettes and 32 cartons of Peter Stuyvesant cigarettes were found. Later he was taken to Milima Remand Prison. He appeared before the Local Court on 6th May 1983 and asked for the matter to be transfered to the Subordinate Court. He was given ball. He was leter tried at the Subordinate Court for the offence of conduct likely to cause a breach of peace and he was convicted but that conviction was quashed on appeal to the High Court. In his judgment the learned trial Judge dismissed the plaintiff’s claim for false imprisonment on 9th February, 1983 but found that the plaintiff’s detention from 27th April 1983 to 6th May, 1983 was unjustified and the learned trial judge awarded the plaintiff K500 for both the false Imprisonment and malicious prosecution arising out of his arrest on 27th April 1983. The trial judge further awarded the plaintiff K300 damages for malicious prosecution arising out of the charge of being in possession of property reasonably suspected of having been stolen. Mr. Kabuka, counsel for the plaintiff has advanced four grounds of appeal. He has argued that the learned trial judge erred in assessing and evaluating the evidence /4...relating ..... - J4 - relating to the plaintiff’s claim for false imprisonment on the night of 8th and 9th February 1983 and for the prosecution that ensued the learned judge fell into error ; by disbelieving the three plaintiff's witnesses whose testimony was not shaken even in cross-examination. The learned trial judge further mistakenly took judicial notice of the time it would take for the group of people to march from the place of arrest to the police station at Kasama for discrediting the plaintiff's witnesses* The learned trial judge elected to accept the evidence of DW1 whose testimony was not credible on collateral matters, for instance, the witness claimed (at page 38 of the record) that he was on duty from 23.40 hours to 0400 hours but purported to give testimony on matters that occurred at 0900 hours. On the principles laid down in Nkhata v The Attorney -General 1966 Z. R. 124 this court is urged to Interfere with the single judge's finding in the court below. As regards the second ground Mr. Kabuka has argued that the learned judge erred both in law and in fact in holding that the false Imprisonment of the plaintiff from 27th April 1983 to 6th May 1983 and the malicious prosecution that following from 28th April 1983 to 26th April 1984 was one and the same cause of action. Mr. Kabuka has argued that the award of K500.00 damages for both the false imprisonment and malicious prosecution referred to was manifestly inadequate. The learned trial judge took Irrelevant considerations, such as absence of evidence on the plaintiff’s earning power* into account, and failed to consider relevant factors such as the lengthy duration of Imprisonment and the sanctity of personal liberty. Mr* Kabuka has further argued that the award of K300 damages for the plaintiff's third claim of malicious prosecution was in the circumstances of the case too low. The learned trial judge made the award by wrongly following false Imprisonment cases. Mr. Okafor, counsel for the respondent, submitted that the trial judge did not err at all when he accepted the • ; ' -V /5. .evidence.......... * - J5 - evidence of the defence witnesses. He argued that the learned trial judge in his judgment carefully analysed the evidence of the witnesses. The trial judge did not only rely on the demeanour of the witnesses, the trial judge dealt with the credibility of the witnesses. The trial judge also properly dealt with the times Involved, and he concluded by submitting that the judge was correct in coming to the conclusion, which he did, that there was no false imprison­ ment in the first claim. Mr. Okafor further argued on damages that, in assessing the damages, the trial judge took into account all the relevant factors. He argued that in the present case the trial judge saw the plaintiff and came to the conclusion that'it would be appropriate to award him the sum that represented two months salary. Mr. Okafor submitted that the judge took into into account the provocative behaviour of the appellant. On the award of K300 for malicious prosecution Mr. Okafor has submitted that the police on seeing the relevant licences had withdrawn the case and the appellant did not have to go through a full trial when the police offered no evidence against the appellant. The learned Counsel submitted that the award of K300 was in fact on the generous side and urged the court not to interefere^fth the findings. We have considered the submissions and arguments put forward by both counsel. As regards Mr. Kabuka?s;submission on the trial judge’s assessment of the evidence regarding false imprisonment on the night of 9th February 1983, we have noted that the learned trial judge dealt In detail in considering the evidence before him, the demeanour of the witnesses and their credibility. After doing that the trial judge came to the conclusion that the case for false imprisonment had not been established. The judge in dismissing the plaintiff's case gave good reasons. We do not have any ground upon which this court can disturb the learned trial judge’s finding. The appellant's counsel’s argument regarding this false imprisonment cannot therefore be entertained. We find therefore that the learned trial /6 judge’s........... J6 • • •. *> judge's finding in the circumstances of the case was correct. As regards quantum of damages for malicious prosecution and false imprisonment, we have taken into consideration various authorities brought to our attention by the learned counsel and we agree with the views expressed by the appellant's counsel that the damages of K500 and K300 were totally inadequate. The police should not use their powers of arrest as a reprisal for derogatory remarks made by a complainant. While such considerations might apply to ordinary citizens it is wrong to show the police such lenlency^^The awards of K500 and K300 therefore are set aside. The proper amount should be a total of K2.000 for both false imprisonment and malicious prosecution. The plaintiff is therefore awarded the sum of K2.000 at 151 ■ per annum from the date of the false imprisonment i.e. 27th April 1983 to the date of this judgment. The is also awarded costs plaintiff ■ - - ■ • • B. T. Gardner SUPREME COURT JUDGE B. K. Bweupe ACTING SUPREME COURT JUDGE p IW • • :■ •*-v* - M. S. Chaila SUPREME: COURT JUDGE ■