Kandoje & Anor. v China Da Restaurant and Lodge (Civil Cause 69 of 2013) [2018] MWHC 76 (27 June 2018)

The Judiciary IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 69 OF 2013 BETWEEN KWAME KANDOJE.............................................................1st CLAIMANT SHAIBU MAKAWA.............................................................. 2nd CLAIMANT AND CHINA DA RESTAURANT AND LODGE............................. DEFENDANT CORAM: A. J. BANDA, ASSISTANT REGISTRAR Mr. P. Mbale, of counsel, for the Claimant For the Defendants, J. Masumbu, not present Ms. M. Galafa, Clerk/ Official Interpreter Page 1 of 6 | Kandoje and Makawa v. China Da Restaurant and Lodge Civil Cause No. of 2013 Assessment Order> Banda, A. R. Banda, A. R Background ASSESSMENT ORDER The Honourable Justice Michael Tembo, by an order o f 29th November, 2016 held that judgment be entered for the claimants in their claims against the defendant claiming damages for; false imprisonment and malicious prosecution, defamation, special damages and costs o f the action. The claimants obtained a date o f appointment with the registrar for the assessment of damages on 17th May, 2018. Neither the defendant nor his legal practitioners turned up for the assessment hearing. The court proceeded to hear the claimants in the defendant’s absence as there was proof o f service o f the notice. Evidence Mr. Kwame Kandoje and Shaibu Makawa told the court that they were employed by China da Restaurant and Lodge as an assistant supervisor and waiter. On 26th April, 2011 they were arrested and detained by the police on the instruction by the owners o f the defendant, a lodge within Blantyre, that they had stolen a laptop that was missing from the lodge after the lodge had hosted a party that was held the previous night. They were detained for two days as they were released on 28th April, 2011 on police bail who told them to appear before the police every day thereafter. They said they were acquitted o f the criminal charge by the court on 14th September, 2011. Both claimants said they had a tough time in detention. Kwame Kandoje said that he was beaten by fellow inmates who made advances to him, without elaborating what the advances were about. He said the inmates had laid on him I the night. Mr. Shaibu Makawa said the inmates beat him up as he did not have money to make a contribution. He further said that he spent a whole night in a standing position. Both claimants said that they were told that their employment contracts were terminated when they returned to the work after they were acquitted. They were told the Lodge could not have employees who were thieves. They said a case of unfair termination o f work was laid before the Industrial Relations Court. Analysis and D eterm ination Generally, the principle in law o f torts is that a wrong must be remedied by an award o f damages. The aim is to put the wronged party in the same position as the party was before the wrong was committed in so far as money can do it- H all v. B arclay [1937] AC 620 @ 623 per Page 2 of 6 | Kandoje and Makawa v. China Da Restaurant and Lodge Civil Cause No. of 2013 Assessment Order> Banda, A. R. Greener, LJ. False imprisonment is one o f the nominal torts. As for calculation o f damages for false imprisonment, Me Gresor on Damases. 14th edition at paragraph 1357 states as follows: "The details o f how damages are worked out in false imprisonment are few ; generally, it is not a pecuniary loss but a loss o f dignity and is left much to the ju r y ’s or ju d g e ’s discretion. The principle heads o f damages would appear to be injury to liberty, that is the loss o f time considered prim arily from a non-pecuniary view point and injury to feelings, suffering, disgrace and humiliation, with any attendant loss o f social status. This will be included in the general damages which are usually awarded in these cases: no breakdown appears in the cases supplied. In addition, there may be recovery fo r any resultant physical injury, illness or discomfort, as where the imprisonment has a deleterious effect on the plain tiff’s health...................... Further any pecuniary loss which is not too remote is recoverable. ” There are numerous cases in our jurisprudence that show that the quantum o f damages in false imprisonment is left to the court’s discretion taking into account all circumstances o f the individual case. Factors in consideration are, but not limited to; time, that is the period under detention, conditions o f the detention, loss of reputation and status. See for example the cases o f Bulla v. Agricultural Development and Marketing [1993] 16 (1) MLR 30 @ 34 and 35; Kamlepo Kalua v. The Attorney General [2013] MLR @ 130 and 131. In the case o f Arnold Kampeni and Five others v. Electricity Supply Commission o f Malawi, Civil Cause Number 255 o f 1998 High Court, Principal Registry each o f the 6 plaintiffs got K l,000,000.00 as compensation for false imprisonment. In that case the plaintiffs were detained for 5 days. In the case o f Lightwell Mphulama v. Attorney General Civil Cause 1970 o f 2008 (Unreported), the plaintiff was detained for 7 days and he was awarded K700, 000.00 on 25th August 2011 for false imprisonment. The plaintiffs in the case o f Chrispin Kaledzera, George Mwase, Sande Mkwamba v. The Attorney General High Court Principal Registry, Civil Cause Number 2578 o f 2009 were detained for 40 days and the court awarded each o f the plaintiffs K300, 000.00 on 24th May 2011 for false imprisonment. In Medson Kanyoza and Nesta Ngwenya v. ESCO M Limited, being Civil Cause Number 541 of2012, the plaintiffs were awarded K100, 000.00 and K80, 000.00 respectively for false imprisonment, their detention having lasted 33 hours and 25 hours respectively. The award was made on the 12th June 2015. In a more recent case o f Civil Cause Number 4 o f 2016, the plaintiffs were detained on the 11th June 2015 from 7pm to 10pm and released only to be detained again from the 12th o f June to the 19th o f June 2015. On claiming damages for false imprisonment, the plaintiffs were awarded K800, 000.00 on 23rd February 2017. Page 3 of 6 | Kandoje and Makawa v. China Da Restaurant and Lodge Civil Cause No. of 2013 Assessment Order> Banda, A. R. In the case o f Shepherd Mumba v. The Director o f the Anti-Corruption Bureau, Civil Cause Number 182 o f 2015, High Court, Principal Registry (unreported, accessible on www.malawilii.org), the Assistant Registrar in an assessment order o f 25th May, 2016 awarded a plaintiff who was detained for less than 12 hours and in much better conditions than this instant case, a sum o f K l,500,000.00.1 quote a part in the assessment order below: The plain tiff herein was detained at the defendant's offices, was never taken to a penitentiary or other form o f cell; there is no suggestion that he was ill-treated or that he fa ced some degrading treatment. The greatest suffering coming as a result o f the arrest was the detention itself leading to the inconvenience ofm aking alternative arrangements to pick his children from school, failing to meet his clients and being preventedfrom doing his daily routines generally. In the circumstances I think K l, 500, 000.00 will suffice to compensate the plaintiff. A person who is prosecuted where there are no sufficient reasons for the prosecution is held to be maliciously prosecuted. This is a wrong for which the person must be compensated. See Chamuka and Another v. Mpasu, United Democratic Front and attorney General Civil Cause No. 662 o f 1998. Lord Holt in Saville v. Roberts (1698) 1 L d Raym 374; 5 M od 394 held that there are three sorts o f damage any o f which would be sufficient ground to support an action for malicious prosecution. He listed them as: 1. The damage to a man’s fame, such as where the matter he is accused o f is scandalous; 2. Where a man is put in danger to lose his life or limb or liberty; and 3. Damage to a m an’s property, as where he is forced to spend his money in necessary charges to acquit him self o f the crime which he is accused. Me Gregor on Damages, 15th Edition, paragraphs 1629 and 1630 state: The principal head o f damages here is to the fa ir fam e o f the plaintiff, the injury to his reputation. In addition, it would seem he would recover fo r the injury to his feelings i.e. fo r the indignity, humiliation and disgrace caused him by the fa c t o f the charge being preferred against him. No breakdown however appears in the cases. H o lt’s second head was the damage by being put in danger o f losing o n e ’s life, limb or liberty. It therefore seems that the p la in tiff can recover in respect o f the risk o f Page 4 of 6 | Kandoje and Makawa v. China Da Restaurant and Lodge Civil Cause No. of 2013 Assessment Order> Banda, A. R. conviction. This is basically injury to feelings. I f there has been arrest and imprisonment up to the hearing o f the cause, damages in respect thereof should also be included, and will be the same as would be recoverable in an action fo r false imprisonment. In the present case all three are satisfied, even though one would have been sufficient. The claimants had their names damaged as they were taken as thieves, they were in danger o f breaking a limb from the conditions o f their detention which included a beating, and indeed they lost liberty by the detention and the subsequent appearance to the police after they were given bail. The prosecution made them lose money to attend bail and trial and to pay for other incidentals. In the case o f Douglas Gella v. Attorney General Civil Cause No. 1013 o f 2005, High Court, Lilongwe Registry, the court made an award o f K700,000.00 as damages for false imprisonment and malicious damage in March, 2007. The claimants also claimed damages for defamation. In the hearing o f employees o f the defendant, the owners o f the defendant lodge turned the two claimants down when they presented themselves to work stating that they were thieves. In Brown Pindani v. Godfrey Mdumuka and Shoprite Trading Limited Civil Cause no. 2442 o f 2003, a plaintiff who was orally defamed and accused o f stealing a drink from the store o f the defendant, and later forced to pay double the price for the drink was awarded K 30,000.00 as damages for defamation. In the present matter I find K3,000,000.00 (three million and five hundred thousand Kwacha) to be adequate compensation for each o f the claimants under the three heads of false imprisonment, malicious prosecution and defamation. The two claimants further asked for indemnity of transport costs and legal and professional fees that the two incurred in the defence o f their hearing. These are special damages. It is a requirement o f law that special damages must be specifically proved in the assessment hearing. It is not necessarily by provision o f receipts- see Renzo Benetollo v. Attorney General and National Insurance Company Limited Civil Cause No. 279 of 1993, High Court Principal Registry (unreported), where the court held that where a party has not proved damages, reasonable compensation in the circumstances can be awarded. This should however, not water down the need for proof. In the instant matter, there was no proof o f legal costs expenditure at Page 5 of 6 | Kandoje and Makawa v. China Da Restaurant and Lodge Civil Cause No. of 2013 Assessment Order> Banda, A. R. K l, 056,000.00, nor K20,000 transport. I understand though that the two defendants were prosecuted and they incurred costs o f that needless prosecution. I award them K300,000.00 each for the costs as nominal damages. Conclusion The claimants are awarded K3, 300,000.00 each as total damages for false imprisonment, malicious damage, defamation and legal, professional and transport costs o f the needless prosecution. The two claimants are also granted costs o f the assessment hearing, which if not agreeable, will be assessed by the registrar. Made this 27th day o f June, 2018. Austin Jesse Banda ASSISTANT REGISTRAR Page 6 of 6 | Kandoje and Makawa v. China Da Restaurant and Lodge Civil Cause No. of 2013 <Assessment Order> Banda, A. R.