Phiri & Anor. v A.G. (Civil Cause 484 of 2013) [2018] MWHC 1118 (1 June 2018)

-~- i-, iG 1-1 C00RT I LIPr.? .l,py ~---.""'~"/ IN THE HIGH COURT OF MALAWI LILONGWE HIGH COURT CIVIL CAUSE NUMBER 484 OF 2013 BETWEEN: MAR IA PH IR l---------------------------------------------------1 ST P LAI NTI FF MARTHA N NH LAN E-----------------------------------------2 ND PLAINTIFF AND THE ATIORNEY GENERAL {MALAWI POLICE)----------DEFENDANT CORAM: HON. JUSTICE M. C. C. MKANDAWIRE Sako, Counsel for the Plaintiffs Defendant, Absent Mrs Namagonya, Court Reporter ltai, Court Interpreter JUDGMENT 1. There are two plaintiffs in this case who are Maria Phiri and Martha Nhlane who shall be referred to as the ist and 2 nd plaintiffs respectively. The plaintiffs through a writ of summons filed this matter against the defendant the Attorney General {Malawi Police Service) . The matter herein commenced on 31st of May 2013 which is exactly five years ago. In their statements of claim th e plaintiffs claim as follows: (a) That they were at all material time working as attendants at City Centre Puma Filling Station in the city of Lilongwe in Malawi. (b) On 5 th of November 2011 agents of the defendant arrested the plaintiffs whilst on duty at the filling station. Thy were locked in at Lilongwe police unit until November gt h, when they were granted bail by the Senior Resident Magistrate in Lilongwe after having been charged with the offence of Retailing in Liquid Fuels contrary to section 16(1) as read with section 17 (e) and 42 of the Liquid Fuels and Gas Supply and Production Act . (c) On November 11, 2011, the plaintiffs were acquitted of the charges herein after the trial court had found that there was no case to answer. The plaintiffs therefore said that their prosecution was carried out maliciously and without any reasonable and probable cause. 2. The plaintiffs say that the defendants knew or ought to have known that the plaintiffs were employees of a properly licenced liquid fuel retailer. The agents of the defendant knew that it was legally permissible for the plaintiffs to be found sell ing liquid fuel as they were employees of a licensed liquid fuel retai ler. 3. As their arrest was without any reasonable or probable cause, the same amounted to false imprisonment. The plaintiffs say that the arrest scandalized them and brought them into public ridicule and it lowered the estimation in the eyes of the right thinking members of society. That the arrest of the plaintiffs was publicized by the Malawi broadcasting Corporation Television on November 7 th 2011 where the plaintiffs were labeled as suspects in illegal fuel vending. 4. The plaintiffs therefore say that by reason of what they have narrated, they have suffered loss and damage and they claim for the following: (i) Damages for false imprisonment. (ii) Damages for malicious prosecution. (ii i) Damages for defamation of character. (iv) Exemplary damages . (v) Costs of this action. 5. The defendant filed a defence. In their defence, the defendant says that the arrest of the plaintiffs was based on reasonable/probable cause and as such it was in accordance with the law. The defendant therefore denies what the plaintiffs had stated in their claim and puts the plaintiffs to strict proof. The defendant denies being liable for all the reliefs as sought by the plaintiffs. 6. On 31st of March 2018 the case was called for hearing. Counsel for the defendant requested for an adjournment so that he could file necessary documents such as witness statements. Counsel also informed the court that the defendant also wanted to explore a settlement agreement with the plaintiffs. I accordingly adjourned the case in order to give the defendant an opportunity to file documents within 14 days. It was also an opportunity for the defendant to pursue the settlement that had been mentioned. The matter was later set down for hearing to the 2nd of May 2018. On this day, counsel for the defendant did not even attend the hearing despite the fact that there had been personal service on the defendant. What is also amazing is that the defendant did not even file the witness statements as per its request. The court therefore proceeded to hear the case in the absence of the defendant. 7. The two plaintiffs gave their evidence which was based on the witness statements that had been adopted by them. It is their evidence that as they were on duty at the service station on the 5th of November 2011, the fuel station was undergoing some renovations and maintenance and there was also no fuel as it had run out of stock the previous night. As the plaintiffs were seated inside the office, a policeman knocked at their door and came inside the office . He then told them that they had been found selling fuel so they were under arrest. He invited the plaintiffs to go to the poiice station. This amazed the plain t iffs as this place was authorized to sell fuel by the Malawi Energy Regulatory Authority although at the material time it had no fuel in stock. The only fuel that was there was a 20 Litre container that was reserved for powering the service station's standby generator. The plaintiffs were taken to Lilongwe Police Station where they were locked up for 6 hours before statements were obtained from them. ON 7th November 2011, the police compelled them to grant an interview with Malawi Broadcasting Corporation Television about their arrest. On 3th November 2011 they were brought before the Senior Resident Magistrate and charged with offences. They were also released on bail. The plaintiffs were tried on 10th of November 2011 and they were acquitted by the court. The ruling of the court acquitting them was tendered as P Ex l(a). 8. The evidence by the plaintiffs has not been challenged by the defendant. The defendant has also decided not to come forward to argue its case and present the side of its story. There is not even any witness statement from which the court can distill any information. The defendant did not even file skeleton arguments. The defence that the defendant had filed is so skeletal that not much can be gathered from it. The defence is just full of general denials and in the absence of any elaboration, there is not much that this court gathers from it. The court had expected that the defendant would come in the open and explain why its agents had arrested the plaintiffs and also what transpired thereafter. 9. I have looked at the ruling that led to the acquittal of the plaintiffs . The ruling by the trial court is very brief and to the point. The evidence of PW No 2 and PW No 3 as it appeared in the ruling is not at all helpful to this court to connect it to any event that could have necessitated the defendant to arrest the plaintiffs and charge them. The evidence of PW NO 1 Sub-Inspector Kaipalero who had arrested the plaintiffs contradicted himself a lot and it is difficult for this court to use the evidence of such a witness as a source of reasonable cause or reason for arresting and prosecuting the plaintiffs. In a nutshell, I find that the defendant had no defence in this case no wonder every one decided to be absent during trial. This was probably to avoid eminent embarrassment during trial. 10. Having listened and gone through the evidence on record, I am satisfied that the arrest of the plaintiffs on 6 th of November 2011 and the subsequent placement in custody at Lilongwe Police Station amounted to false im p r iso nme nt . I say so because the defendant had no basis whatsoever for the said arrest . The plaintiffs were employees at a duly licenced service station. If fuel is not sold at such places, then where else could it be sold? I am also satisfied that the prosecution of the plaintiffs was without reasonable and probable cause . A reading of the ruling of the trial court actually demonstrates that . The plaintiffs w ere therefore maliciously prosecuted. 11. It is clear from the unchallenged evidence that the defendant had to parade the plaintiffs on the television where the plaintiffs had to explain about their arrest. Their arrest therefore received one of the biggest coverage. The defendant organized all this drama. This publication brought the plaintiffs into public scandal, contempt and ridicule. This amounted to defamation of character as the plaintiffs were throughout referred to as "suspects in illegal fuel vending." It is therefore my finding that defamation of character has also been proved by the plaintiffs . 12. The plaintiffs are therefore successful and the defendant is condemned to pay costs of these proceedings. I order that the Assistant Registrar Civil should assess the damages herein. DELIVERED THIS DAY OF JUNE 2018 AT LILONGWE M. C. C. MKANDAWIRE JUDGE s