Majeweta and 8 Others v Attorney General (Civil Cause 142 of 2020) [2022] MWHC 78 (20 May 2022)

David Majeweta and others v Attorney General IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 142 OF 2020 BETWEEN DAVID MAJEWETA AND 8 OTHERS AND THE ATTORNEY GENERAL CLAIMANTS DEFENDANT CORAM MATAPA KACHECHE Lemucha Defendant Mbekeani Deputy Registrar for the Claimants Absent Official Interpreter ORDER ON ASSESSMENT OF DAMAGES 1. By a judgment in default of defence dated 25Eil August 2020 the claimants are entitled to damages for false imprisonment, malicious prosecution, defamation, pain and suffering, loss of amenities of life and permanent disfigurement. The claimants were also awarded the special damages, being the cost of procuring medical reports. 2. Throughout the action the defendant has been served with documents but has not appeared in court nor has he filed any document to defend the matter. It was not different when he was served with the notice of assessment of damages. The matter thus proceeded with the assessment on 20th April, 2021 in the absence of the defendant. 3. Each of the claimants called one witness being the claimant themselves to testify on their behalf. 4. The uncontroverted evidence is that from the early hours of 10th February, 2018, between 12:00 midnight and 2:00 a.m. the claimants were visited by the police in their respective homes and were arrested. They were taken to Mulanje Police Station David Majeweta and others v Attorney General where they were charged with the offences of proposing violence at an assembly and rioting contrary to sections 87 (l)(c) and 73 of the Penal Code respectively. 5. They were kept in the police cell for two days. They were then taken to Mulanje Prison where they were kept for the next eight days before they were released on bail by the Mulanje Magistrate Court where they were taken to be formally charged and later tried. The release on bail took place on 19th February, 2018 after the claimants had been incarcerated for 10 days. 6. While in police custody the claimants were assaulted and the first and second claimants sustained some serious bodily injuries. They were denied medical attention, they slept on a wet floor, they were subjected to mosquito bites and the conditions in which they were kept were generally squalid. 7. After being formally charged and tried the Court found eight of the claimants with no case to answer after the prosecution case while one was acquitted after full trial. 8. So far go the facts as they apply generally to all the claimants. I will defer the specific facts towards the end of the order as I will be making specific awards to each of the claimants. At this point let me turn to the law on damages. 9. A person who suffers bodily injuries due to a tortious act of another is entitled to the remedy of damages. The damages will ordinarily be claimed against the person who committed the tortious act. In some cases, the claim may be against the wrongdoers superior (vicarious liability) or an insurer (where the law allows the person wronged to directly sue the insurer). 10. In this case, the Attorney General has been sued as being the superior, representing the Government of Malawi for which police officers work. David Majeweta and others v Attorney General 11. The principle is that the Court must, as nearly as possible, award an amount, as far as money can, which will put the plaintiff in the same position they would have been in if they had not sustained the injury due to the wrong for which they are being compensated. 12. Such damages are recoverable for both pecuniary and non-pecuniary losses. 13. The pecuniary losses are those losses that are quantifiable in monetary terms. The claimant needs just to bring evidence of their losses such as receipts, evidence of employment, business etc. Upon proof of loss the Court’s task is just to make calculations to come up with exact figures. Pecuniary losses include loss of earning capacity and related benefits and medical expenses and related expenses and others. 14. Nonpecuniary damages on the other hand refer to damages that are not quantifiable in monetary terms. In such cases, all the claimant has to prove is that they suffered an injury or damage attributable to actions of the defendant, prove the extent of the injury and damage and leave it to the Court to decide how much they can be compensated with. 15. There are no mathematical formulae to calculate damages awardable for nonpecuniary losses. As such the Court makes use of experience and guidance afforded by awards made in decided cases of a broadly similar nature. See Wright v British Railway BoartZ [1983] 2 AC 773. 16. In this case we are to assess pecuniary losses being refund of the cost of procuring medical reports and nonpecuniary damages for false imprisonment, malicious prosecution, defamation, pain and suffering, loss of amenities of life and permanent disfigurement. 17. Damages for false imprisonment are awarded for the loss of dignity, liberty and time. They are also awarded for injury to feelings, suffering, disgrace David Majeweta and others v Attorney General and humiliation that comes with the reputation of a person who has been arrested on suspicion of commission of an offence. 18. Damages for defamation are awarded mainly injury to reputation, injury to feelings (Mkandawire v Mtonga and others, Civil Cause no. 521 of 2005(unreported), injury to health and pecuniary loss (McGregor on Damages, 16*11 Edition page 1226 paragraphs 1893 to 1897) in as far as these flow from the defamatory actions of the defendant. Over and above that, the Court takes into account the context of the defamatory material, the nature and extent of the publication of defamatory material, the standing of the plaintiff in the society and the conduct of the defendant since defamation, (see Mwaungulu vs Malawi News (1991)MLR 227). 19. The Court also takes into consideration the probability of reproduction, the extent of the audience, i.e. the circulation of the defamatory material, the claimants status and such other issues (Mkandawire Case). 20. For malicious prosecution the claimant is compensated for damage “to the fair fame of the plaintiff, the injury to his reputation” (Me Gregor on Damages). Wrongful or malicious prosecution also does damage the claimant’s feelings, making him lose his dignity, gets humiliated and disgraced by the fact of the charge being preferred against him. See also Bulla v Agricultural Development and Marketing Corporation [1993] 16(1) MLR 30 (HC) 21. Pain refers to the immediately felt effect on the nerves and brain of some lesion or injury to a part of the body, while suffering is distress which is not felt as being directly connected with any bodily condition. 22. Loss of amenities of life concentrates on the curtailment of the plaintiffs enjoyment of life by their inability to pursue the activities they pursued before the injury. Bricket L. J. put it thus in Manley v. David Majeweta and others v Attorney General Rugby Portland Cement Co. (1951) C. A. No 286, reported at Kemp and Kemp, The Quantum of Damages, Vol. 1 (2,ni Ed., 1961, p. 624.2 “There is a head of damage which is sometimes called loss of amenities; the man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has had both legs removed will never again go upon his walking excursions- things of that kind-loss of amenities. " 23.1 must emphasize that pain and suffering and loss of amenities are separate and it is not correct to lump them together. Most times counsel lump them together and the Courts adopt the same approach. But the correct approach is that they must be separated. 24. Let me start with assessing damages for false imprisonment. Counsel has cited a number of cases where awards were made previously. Unfortunately, most of the awards were made long time ago and may not be relevant as comparative ones to the present case. They can only be used for guidance. For this exercise I will use the following cases: a. In the case of Limbikani Kaseka Nyirenda v the Attorney General (Malawi Police Service) Civil Cause no. 354 of 2014, the claimant was arrested and imprisoned for 4 days. He was awarded K4, 000,000.00 for false imprisonment- the award was made on 27th October, 2017; b. in Kandoje and another v China Da Restatirant and Lodge Civil Cause no. 69 of 2013 the Claimants were awarded K3, 300,000.00 each for false imprisonment, malicious prosecution and defamation. The claimants were incarcerated for two days. The learned Assistant Registrar did not explain the weight given to each head of damages. As such this precedent may not be very c. helpful; in Arnold Kampeni and others v Electricity Supply Commission of Malawi Civil Cause no. 255 of 1998 the claimants were awarded David Majeweta and others v Attorney General KI,000,000.00 each for an imprisonment that lasted for 5 days. The award was made on 11th May 2017; d. more recently, in Hastings Saimon vAmpex Coach Limited Civil Cause No. 251 of 2020 the plaintiff was incarcerated for 8 days on allegations of having committed theft. He was awarded K4,000,000.00 for false imprisonment. The award was made on 23rd March 2021. This case is materially similar to the present one. 25. In the present case although the incarceration was longer than the Hastings Saimon case the circumstances are such that I do not find justification to award more. I will therefore award each of the claimants K4, 000,000.00 for false imprisonment. 26. Coming to malicious prosecution Counsel cited Bennet Kalavina v Hussein Jussab t/a Zoom Car Hire Personal Injury Cause no. 57 of 2010 where the claimant was awarded the sum of K4, 000,000.00. In other cases: a. b, In Robert Tsenga v Attorney General Civil Cause No. 132 of 2017 awarded K4, 000, 000.00 for malicious prosecution. The allegation was one of theft; in Llewelyn Kalua v Attorney General Civil Cause No. 49 of 2017 K5,000,000.00 was awarded for malicious prosecution, The claimant was seventy years old arrested and prosecuted for conspiracy to commit an offence and robbery. It was found that the police did not have any probable cause to prosecute him. Award was made on 13th August 2018. 27. In the present case I will follow the Robert Tsenga award and I award each of the claimants K4, 000,000.00 for malicious prosecution. 28. For the purposes of assessment of damages for defamation, pain and suffering and loss of amenities I will refer to the individual testimonies of the claimants. David Majeweta and others v Attorney General DAVID MAJEWETA 29. The first claimant testified as the third witness as he came slightly late for the assessment. 30. He stated that he has been involved as a senior member of a community based organization called Citizen for the Protection of Mulanje Mountain. The police raided his house at night and broke into the house where they arrested him. He was kept in handcuffs for seven hours immediately after the arrest ..1 wonder why this had to be the case. 31. Due to the arrest he says that he lost business as a tour guide, as foreign clients who had prebooked him, found him in police custody. He also stated that he lost a number of long standing customers due to loss of trust in him. He did not lead any evidence of the prior bookings by the said clients nor did he show any evidence that some clients had lost trust and were no longer hiring his services as a direct result of the detention per his claim. 32. Apart from saying that he suffered injury to his reputation in his community as a community organization leader and the tourists who were visiting during the time (whose numbers we do not have), which is evidence of publication of the story within his community, he did not, in general, lead evidence of the extent of publication of the defamatory material outside his community. a. In Robert Tsenga v Attorney General Civil Cause No. 132 of 2017 (unreported), the claimant was awarded K2,000,000.00 for defamation. He was arrested on allegations of theft in full view of fellow employees and employees of other companies (order made on 4th November, 2020; in Fred Manda v The Attorney General Civil Cause No. 634 of 2009 (Unreported) the plaintiff was awarded I<2, 000,000.00 for defamation having been arrested on false allegations of dealing in gemstones. The award was made on 18th February, 2019; b. David Majeweta and others v Attorney General c. in Maxwell Rex Mkusah v Easy Loans Limited Civil Cause No. 126 of 2017 (unreported) the claimant was awarded I<3, 000,000.00 for defamation. His motor vehicle was seized in public on allegations that he defaulted in the payment of a loan. The award was made on 7th January 2019. 33. The claimant herein lost his reputation as a community leader. And although he could not produce cogent evidence on the effect on his business as a tour guide his reputation among tourists was likely affected. The manner of arrest itself gave the impression that the claimant was a dangerous criminal. I will award him I<3, 000,000.00 for defamation. 34. While in police custody he suffered heavy assault leading to a mild head injury including cut wounds, painful left hip, dislocated right hip, cut wound on the left leg. He was treated with pain killers and dressing on the wounds and sutures of deeper cuts. He now has difficulties with walking. He has difficulties performing sports and exercises such as mountain hiking. He being a tour guide this will obviously affect his job as a guide as sometimes it involves walking on foot for long distances. 35. In this case although I will cite global awards only for the purposes of general comparison my award will be properly segregated to guide the plaintiff on how I came up with the award. The following awards will be my benchmark: a. In the recent case of Dorothy Damiano & 9 Others v Enock Masanjala & Another, Personal Injury Cause No. 148 of 2017 claimants who suffered various deep cut wounds and were treated by suturing and painkillers were awarded K2,500, 000.00 for pain and suffering and loss of amenities of life. They were not awarded for disfiguremet as they did not show any disfiguring scars. in Dalitso Shumba and Timothy Mereka and Prime Insurance Company Limited Personal Injury Case No. 901 of 2014, where the 1st claimant sustained a deep cut wound on the lower b. David Majeweta and others v Attorney General c. jaw which was stitched, a cut wound on the thigh, laceration on the right side stomach, bruises on the right leg, swollen and painful neck, dislocation of the right wrist. On the 19th of June 2016, the court awarded the sum of K3,000,000.00 as damages for pain and suffering, loss of amenities and disfigurement. in Mwaiwawo Dzowa v Edward Taelo & Another, Personal Injury Cause No. 995 of 2020 the claimant suffered a fracture of the metatarsal of the right hand, multiple bruises on the right hand, painful fingers, swollen fingers, scar formation on the affected areas, headache and general body pains. He was awarded K5,000,000.00 on 13th September, 2021. 36. Therefore, for the first claim ant’s injuries, I award him K2, 000, 000.00 for pain and suffering; I<3, 500,000.00 for loss of amenities of life; K500,000.00 for disfigurement and KI 0,500.00 special damages for the cost of procuring the medical report. IVORY KALIATI 37. The Second claimant testified as the second witness. He stated that he has been involved as a senior member of a community based organization called Citizen for the Protection of Mulanje Mountain. 38. The police raided his house at night and broke into it to arrest him. Due to the arrest he says that he lost business as a porter. This is because foreign clients who had prebooked him found him in police custody. He did not lead any evidence of the prior bookings by the said clients. 39. Apart from saying that he suffered injury to his reputation in his community and the tourists who were visiting during the time (whose numbers we do not have), which is evidence of publication of the story within his community, he did not, in general, lead evidence of the extent of publication of the defamatory material outside his community. David Majeweta and others v Attorney General 40. He was heavily assaulted by the Police while in their custody leading to a loss of a tooth, fractured ribs, deep cut wound on the left knee, loss of hearing on the right ear, severe pain on the left ear and right arm among the injuries. He tendered a medical report to prove the claim. The injuries have affected his work as a porter- he has difficulties walking, he finds it difficult to lift heavy objects, which is the predominant activity of a porter and he finds it difficult to chew due to loss of the tooth. 41. On the basis of the considerations and case authorities cited above when considering the award to the first claimant I make the following awards to the second claimant; a. K3,000,000.00 for defamation b. K2, 000,000.00 for pain and suffering c. K3, 500,000,00 for loss of amenities d. KI, 500,000.00 for disfigurement e. K10, 500.00 special damages for the cost of procuring the medical report. WITNESS STIMA 42. The third claimant testified as the fourth witness. He stated that on the particular night the police raided his house and broke into it to arrest him. He stated that his reputation got damaged due to the incarceration. Further, he was put to considerable trouble, anxiety, inconvenience and expense as he could not perform his duty as a tour guide. 43. He was heavily assaulted by the Police while in their custody. He did not lead any evidence of physical injury. 44. On the basis of the considerations and case authorities cited above when considering the award to the first claimant I make the following awards to the second claimant: a. K3,000,000.00 for defamation b, KI,000,000.00 for pain and suffering WILSON MATANI David Majeweta and others v Attorney General 45. The fourth claimant testified as the fifth witness. He stated that on the particular night the police raided his house and broke into it to arrest him. 46. He stated that his reputation got damaged due to the incarceration. Further, he was put to considerable trouble, anxiety, inconvenience and expense as he could not perform his duty as a tour guide. 47. He was heavily assaulted by the Police while in their custody. He did not lead any evidence of physical injury. 48. On the basis of the considerations and case authorities cited above when considering the award to the first claimant I make the following awards to the second claimant: a. K3,000,000.00 for defamation b. KI,000,000.00 for pain and suffering PATRICK CHIWAY A 49. The fifth claimant testified as the sixth witness. He stated that on the particular night the police raided his house and broke into it to arrest him. 50. He stated that his reputation got damaged due to the incarceration. He faces stigma from his family members as he brought dishonor to his family. 51. He was heavily assaulted by the Police while in their custody. He did not lead any evidence of physical injury. 52. On the basis of the considerations and case authorities cited above when considering the award to the first claimant I make the following awards to the second claimant: a. K2,000,000.00 for defamation b. KI, 000,000.00 for pain and suffering BESTER NAMUKHOVA David Majeweta and others v Attorney General 53. The sixth claimant testified as the seventh witness. He was also a member of the Citizen for the Protection of Mulanje Mountain, 54. He stated that on the particular night the police raided his house and broke into it to arrest him. He stated that his reputation got damaged due to the incarceration. He is a well known member of the community and as a member of the organization. Further, he was put to considerable trouble, anxiety, inconvenience and expense as he could not perform his duty as a tour guide. 55. He was heavily assaulted by the Police while in their custody. He did not lead any evidence of physical injury. 56. On the basis of the considerations and case authorities cited above when considering the award to the first claimant I make the following awards to the second claimant: a. K3,000,000.00 for defamation b. KI,000,000.00 for pain and suffering SANDERSON LIWAGO 57. The seventh claimant testified as the eighth witness. He is a senior member of the Citizen for the Protection of Mulanje Mountain. 58. He stated that on the particular night the police raided his house and broke into it to arrest him. He stated that his reputation got damaged both as a leader in the organization and as tour operator due to the incarceration. His business got interrupted as his clients book him online. He did not produce evidence of such. Further, he says the community now thinks he is a criminal. 59. He was heavily assaulted by the Police while in their custody. He did not lead any evidence of physical injury. David Majeweta and others v Attorney General 60. On the basis of the considerations and case authorities cited above when considering the award to the first claimant I make the following awards to the second claimant: a. K3,000,000.00 for defamation b. KI,000,000.00 for pain and suffering KINGSLEY MAMBO 61. The eighth claimant testified as the first witness. He is also a senior member of the Citizen for the Protection of Mulanje Mountain. 62. He stated that on the particular night the police raided his house and broke into it to arrest him. He stated that his reputation as a community leader and a tour operator got damaged due to the incarceration. His business depends on tourists recommending him to each other. Further he takes prior bookings and all bookings for the period got cancelled. He did not bring any evidence to prove such. 63. He was heavily assaulted by the Police while in their custody. He did not lead any evidence of physical injury. 64. On the basis of the considerations and case authorities cited above when considering the award to the first claimant I make the following awards to the second claimant: a. K3,000,000.00 for defamation b. KI,000,000.00 for pain and suffering REX SUWEDI 65. The ninth claimant testified as the ninth witness. He stated that on the particular night the police raided his house and broke into it to arrest him. 66. He stated that his reputation as a porter and community member got damaged due to the incarceration. He no longer has a reliable living as his business as a porter got disrupted by the incarceration and the tourists no longer trust him. He did not bring evidence to prove this. David Majeweta and others v Attorney Genera! 67. He was heavily assaulted by the Police while in their custody. He did not lead any evidence of physical injury. 68. On the basis of the considerations and case authorities cited above when considering the award to the first claimant I make the following awards to the second claimant: a. K3,000,000.00 for defamation b. KI, 000,000.00 for pain and suffering SUMMARY 69. In summary the claimants are awarded the following in damages: a. First claimant i. ii. iii. iv. v. vi. False imprisonment - K4, 000,000.00 Malicious Prosecution- K4,000,000.00 Defamation - K3,000,000.00 Pain and suffering - K2,000,000.00 Loss of amenities of life- K3,500, 000.00 Disfigurement - K500,000.00 vii. viii. Special damages - K10,500.00 Total - K17, 010, 500.00 b. Second claimant i. ii. iii. iv. v. vi. False imprisonment - K4, 000,000.00 Malicious Prosecution- K4,000,000.00 - K3,000,000.00 Defamation Pain and suffering - K2,000,000.00 Loss of amenities of life- K3,500, 000.00 Disfigurement-KI, 500,000.00 Special damages ■ - KI0,500.00 vii. Total-KI8, 010, 500.00 d. Third claimant i. ii. iii. iv. v. False imprisonment - K4,000,000.00 Malicious prosecution - K4,000,000.00 Defamation -K3,000,000.00 Pain and suffering - KI ,000,000.00 Total-K12, 000,000.00 e. Fourth claimant i. ii. iii. iv. False imprisonment - K4,000,000.00 Malicious prosecution - K4,000,000.00 Defamation - K3,000,000.00 Pain and suffering - KI,000,000.00 David Majeweta and others v Attorney General Total-K12, 000,000.00 f. Fifth claimant i. ii. iii. iv. False imprisonment -K4,000,000.00 Malicious prosecution ---K4,000,000.00 Defamation - K2,000,000.00 Pain and suffering - KI,000,000.00 Total™ KI 1, 000,000.00 g. Sixth claimant i. ii. iii. iv. False imprisonment - K4,000,000.00 Malicious prosecution - K4,000,000.00 Defamation - K3,000,000.00 Pain and suffering - KI,000,000.00 Total -K12, 000,000.00 h. Seventh claimant i. ii. iii. iv. False imprisonment - K4,000,000.00 Malicious prosecution - K4,000,000.00 Defamation - K3,000,000.00 Pain and suffering-KI,000,000.00 Total -K12, 000,000.00 i. eighth claimant i. ii. iii. iv. False imprisonment - K4,000,000.00 Malicious prosecution - K4,000,000.00 Defamation - K3,000,000.00 Pain and suffering - KI,000,000.00 Total -K12, 000,000.00 j. Ninth claimant i. ii. iii. iv. False imprisonment - K4,000,000.00 Malicious prosecution - K4,000,000.00 Defamation -K3,000,000,00 Pain and suffering - KI,000,000.00 Total -K12, 000,000.00 v. I also award costs of these proceedings. Delivered this 20th day of May 2022 Chimbizgani Matapa Kacheche Deputy Registrar 15