Munthali v The Attorney General (Civil Cause 52 of 1993) [1993] MWHC 34 (19 May 1993)

i recente Re MRA imar ete wee 6 AA OMRD SERENE NS HGH ERE IRIN TS me Speciale ar IN THE HIGH COURT OF MALAWI PRINCLPAL REGISTRY CIVLL CAUSE NO. 52 AN MARTIN MATCHIPISA MUNTHALI .......-.-2-2-220-- PLAINTIUVF AND A THE ATTORNEY © GENERAL ceevedeondsteccaawesas DEPENDANT ‘Ms . MWAUNGULU, REGISTRAR Mhango, Couns el for the Plaintiff Counsel for the Defendant, Absent ORDER ss een ine eee eaten con 11k “Saauaty 1993 the plaintiff, Martin Matchipisa Bali, took out this action against the Attorney General fing aggravated damages and exemplary damages for false sonment and tréspass to land respectively. The Writ of! ns, ‘which was’ accompanied by an Acknowledgment of Servite, Berved on the Attorney General on the 20th of January 1993. Attorney General did not lodge any Notice of Intention to BFed. So on the 11th February 1993 the plaintiff obtained an rh locutory JudEMe tt for damages to be assessed by the Master. e's ‘A Notice of Appointment for Assessment of Damages was |. out on the’ 16th of February 1993 setting down the case’ for heed 2th of March 1993. On the 12th of March 1993 Namboya, pees who was by the Chambers but not for the ldular case, informed the Court that the State Advocate ing the matter was outside the country. The case was Pe HSurned to the 18th of March. On the 18th of March 1993, °°" hObSdy was present for the defendant. I proceeded to hear’ | 4 ‘dénce’ from the plaintiff. This action starts may be in 1965 on the 27th of October — rthe plaintiff: was arrested at Mlare in Karonga. He was” in possession of fire-arms. He was tried, convicted and mere roar war TT ~2- Pi ee 5 Snil sono @hced to 4 years imprisonment with hard labour. ‘There was appeal to the High Court and the sentence was increased to years. He was to be released on the 25th of February and he was. | ; 1 ‘On the 25th of Febru vary the plaintiff was just coming out the prison when two prison officers asked him to follow - Fifteen minutes later he was served with a twenty-cight 6tention order. The order, I presume, was under the ervation of Public Security Act in its original form which Srised detention for 28 days pending the decision of the ater. The twenty-eight days was later removed from the ite book and substituted with the words "reasonable time". He was Laken lo Daeleka Prison in Dowa. He was putin at Hasolitary room. He was ordered not Co speak Co anyone. He further told that he was a very influential person and that ttld influence them and others because he told them that he ee AEB multi-party to come into the country. He was at Dacleka . : BO for two months. 4 s Hh After those two'months he was sent lo Mikuyu Prison. “A Siding to. him, it was worse there. He was ina solitary cell measuring three feet by six feet. The room was much darker, _THE¥E was no window and no ventilation. He was alone in Mikuyu ipito 1974. His only companion was Chakufwa Chihana who joined fater and was released subsequently. He remained at Uhe u Prison till the 12th of June 1992 when he was released. Talking about his life in prison, the plaintiff said that st sense of time. He could not read, he could not talk to body, he was confused. To quote his very words, "I don't GWewhat was going on because a human being cannot be treated Kelthat, even an animal can be treated better" This had an feet on his health, he developed high-blood pressure and he not see properly. The food was not so good till some time in 1975 when it ved, following a strike. In 1978 it dropped again. The “were not cleaned. They were refused to clean them NSelves or, if allowed to clean them themselves, it was with lculty. He had, however, adequate blankets although he had ’ttresses and pillows. He could not sleep straight or éfch himself because in the same cell was a bucket in which had to help himself. He had his first relation visit him in 1979. The visitor ¢med him that his house was burnt, so was his five bundred- ze aa coffee bush. He was told that this was done by Youth ‘ duers. His bottle store was also burnt together with his es ing nets and carpentry equipment. When he went to his home a) le was released on the 12th of June 1992, he verified most : se damages. aia vinamenee . oa a om ~ son 0 MEER RU Sere EN SNOB Ve URI a ARIINER ; ms Pe g = ¢ ae we ae os sewers 27 Gh COURT Op e apg AEST nS Prine la aN 3 & | , C8SEPIg9x \ . | ~ \. ae A yy Sy he ian ete — Ibh-is:.on aceounkt of these that he is claimnp=tamages from... ttorney Generali: As we have seen, liability is not denied. he ps I should mention, as:I proceed to assessment of damages , I had a bit» of problems with the reliefs sought... It may be tant ‘to reproduce paragraph 14 of the statement, of claim: "Therefore the Plaintif£ claims (i) Aggravated damages for False imprisonment (ii) Exemplary damages for Tresspass to land and: goods." meparagraph I have just quoted from the statement of claim 36s the pedantic difference between aggravated damage and fenplary damages. In a foot-note to paragraph 211 of McGregor \Damapesyo14th Edition, the learned authors says this: | "Frequently the expression is aggravation and or aelaee 3 mitigation of "damages" and not of "damage". There is justification for both, since both the ‘damage and the damages are made more or made less. Nevertheless it is submitted that it is preferable to adhere to the singular word "damage" for two reasons. First, this is logical order as the damage must be aggravated or mitigated before “the damages can be aggravated or mitigated. Secondly, in relation to aggravation this helps to keep separate damages awarded as compensation to the plaintiff and damages awarded as punishment of the defendant, the distinction which, as explained by Lord Devlin in Rookes v. Barnard (1964) AC 1129, 1131, has in the past been too frequently blurred seeee "Aggravated damage" indicates that the loss to the plaintiff is increased and can therefore only have recourse, or lead on, to compensatory mwa damages; but aggravated "damages" is ambiguous in te this respect and could refer equally to compensatory % damages and to exemplary damages". Puveet This passage points to the proper way in which both exemplary and aggravated damages should be understood. This has lore ijsignificance because, as Lord Devlin observed in Rookes_ v. Barnard, award of exemplary damages is "an anomaly from the law “England''. It should be understood, however, that aggravated damage as opposed to’aggravated damages is part of the ‘bmpensatory policy of damages. What is envisaged in exemplary damages is that circumstances can be proved which would entitle théeaplainti£& to have'an award of damages much highér than he Udfobtain ordinartly. In that sense aggravated damages 6. sg SA OR ERE pete ham Pe ter Fe EA RAL A ia = \ t ee a | \ pdisiietmmeprnaneciy | ee — . fe HIGH COLip yO } OP ey | EAS in. * ty | “ “te it 0 & po Me ON \ ; py 7 ‘ SE i {90> \ \ | SS eo : - @£ 4 a é a ra i ~ axe A Tee ean Sy : B R AR ¥ @avour to fully compensate the plaintiff for the damage he Suffered. Exemplary damages, however, are nol necessarily a Mensation to the plaintiff for the damage he has suffered: rogare more a punishment on the defendant for f6S v.- Barnard, Lord Devlin said: waywardness. In "Exemplary: damages are essentially different from ordinary damages. The objective of damages in the Wy usual sense of the term is to compensate. The sm object of exemplary damages is to punish and deter. Tt may well be thought that this confusion serves criminal functions of the law; and indeed, so far % -as I know, the idea of exemplary damages is peculiar * to English law.. There is no decision of this House -approving an award of exemplary damages and your lordships therefore have to consider whether it is * open to the House to remove an anomaly from the Law ? of England". “ +f i tr, he continues as follows: a4 "Moreover, it is very well established that in be cases where damages are at large, the jury (or the judge if the award is left to him) ean take into i . re account motives and conduct of the defendant where { to the plaintiff. i spite or the manner : of commiting the wrong is such as to injure the t “a plaintiff's proper feelings of dignity and pride, These are matters which the jury can take into : -account in assessing the proper position. Indeed, when one examines cases in which large damages have been awarded for conduct of this sort, it is not at all easy to see whether the idea of compensation or idea of punishment has prevailed". Rea i L8é imprisonment, the plaintiff prays for aggravated damages. i siwe shall see laler, this is a proper case where exemplary pie damages for false imprisonment ought to be awarded. 1 would nol i think, in view of what has happened in this case, that one i should be pedantic enough to think that aggravated damages claimed for false imprisonment should not include the punitive aspect in exemplary damages. L would accept the the#learned authors that when the words a 4 & submissions of "ageravaled damages" are séedvas opposed to "aggravated damage" they are wide enough to eti¢ompass exemplary damages. 3k sate Reels ety IC has been submitted for the plaintiff zxded exemplary damages. Lord Devlin in Rookes v. TH enol atl dh natal that he should be Mr. Mhango relied on the ! slLatement Barnard. In that’ case Lord Devlin, cane tenn ny meee oan ee ‘4 ji with: whom Lord Justices Pearce, Hodson, Ever ehe oF “snag Rei ag BgGd as Chough! thal iT Chough before that decision eens dam agasy wore awarded widely, oxemplary damapyes alvould lye reed ted to the three areas he mentioned. Tn this partie vita he plaintiff's situation clearly Falls iu the tires he first catepory is oppressive, arbitrary «4 ‘uncons | iLubional action by the servants of the Bovernment. Fo should not extend this catesor: [Tisay this wilh particular reference to the tarot: 208 this case - bo oppressive ac bon by creates ,powers or individuals. Where one “powerful than another it is Will try to use his power to Vif, his power is much greater whe might, perhaps, be said to maw FS mare inevitable that he gain his ends sani than the other’ be using it . : , oppressively. I! he uses his power illepaltly. he he ‘soy must of course Ine punished for his illegality in i oe) the ordinary wav: but he is not to be punished ne! ogimply because he is the more powerful fay thre he | : Case of Che government it is different. tor the ‘ ae 6ervant s of the vovernment are also the servant: “of the people and the use of their power must always be subordinate to their duly of fd seryvdou! sae oe The: restri ctions created by Lord Devlin have not) been warmly welcoméd by common Law jurisdictions. In Australia the Limitations there were confirmed by the Privy Council of the House®of Lords in Australian Consolidated Press v. Uren ' 1969) yabord Maurice of Borth-y-Gest delivering the judgment of t board upholding the insurgency on the basis that wunecder Australian common Taw cxemplary damages were awarded for Libel He als SO: opined that other common taw jurisdictions could develop on the: pemeipl se in Rookes ve. Barnard. Tn Broome vv. Cassell & Co. #(19.72 ) AC 1027, 1067, Lord Hailsham, the Lord Chancellor, was § “perturbed that uniformity could not be achieved iu the common, ‘law jurisdiclions. Just across, in Zambia, Rookes vv. Barnardihas had to be tailored to the development of the law i Zanigiay a Deputy Chief Justice Baron said, in Times News peapes 2)- “Limit ed Ve Kapwepwe (1973) 2 ZLR pape 292, 298; ) aceLimi tations of exemplary damages to these icategor bes of Cases was clearly a departure tacos “Swhat was previously understood to the baw, and Se Pecopmt sil as stich by Lord Devlin when he said been Rookes Vv Barnard at page 410, "I i what foam about lo say will, if accepted, inpose the Timits not hitherlo expressed on sich awards and that there is powerful, though vet ympelling authority. for allowing Chem a cam werd boo ctirnaae wide 6: = range'. Although we will naturally give the most miserious consideration to decisions of the House of Lords , it is the funetion and duty of this court ¥to develop our Law against the background of our own pessential. conditions and not those of some other “country. The difference between the circumstances ‘prevailing in England and Zambia are very material fin this case; il is very necessary to docide al ‘the outset whether the law as laid down in Rookes v. ‘Barnard is suitable for Zambia". Oo 1EMa: the case of Rookes v. Barnard has been widely applied. Litusgt point out, however, that” reasons such as have caused a departure From the House of Lords decision in Rookes v. Barnard haveznol arisen here. For the most party cases in which Rookes vo aBarnard has been cited on claims Cor exemplary damages have beenjr like they are in this case, cases against public officers. In’that regard the principles in Rookes v. Barnard have been applied. IT also want to apply them in this case.” bei Lyd 4 This leads us Co how these exemplary damages are Lo be worked out. Again, here, the starting point is what Lord Devlin said:at page 411 in Rookes v. Barnard: Moe... Gf, but only if, the sum which the jury wt have in mind to award as compensation (which may Mi Of course be a sum aggravated by the way in which % the defendant has behaved to the plaintiff) is a inadequate to punish him for his outrageous ‘conduct, to mark the disapproval of such conduct and to deter him from repeating it, then they can faward some larger sum". ‘tiny mind, what comes out of this statement is that the court imUS tAcome up with a proper award after taking into account all Vee: wae : ° - : : \€lrgumstances of aggravation. With that figure in its hands, sthe'court must ask itself whether it adequately punishes the "defendant for his conduct. If it does not, the court must award ty beg og a “dj lareer sum to show ils disconfiture with the defendant's “Gonduct . Where the award adequately punishes the defendant, it ‘ §,improper to award a larger sum because cxemplary damages are gby,.nature included in aggravated damages. This is what Lord Hailsham said in Cassell v. Broome at page 828: "The true explanation of Rookes v. Barnard is to be found in the fact that, whether damages for loss of reputation are concerned or whether a simple outrage to the individual or to property is concerned, aggravated damages in the sense | have explained can, and should, in every case —& ’ watt oe . -- yn ( a tia My, ; * . we POON \ (Aer “ f \ C TSEP 993 \ | i ~., f t * ‘On Se } e 5 _ 7 - SS a “Ne * Linn, oer ~ a “MOR ARY ‘ aie oe lie outside the categories to take care of the exemplary element. And the jury should neither be encouraged vior allowed to Look beyond gencrous olatium as is required for the in juria simply to feelings of indignation. excluded ia at S fin order to give effect It is not that the exemplary element is min such cases. [t is precisely because in the fnature of things it is, and should be, included mit in every such case Chat the jury should neither be * encouraged nor allowed to look for il oulside the solatia and then lo add to the sum awarded another sum by way of penalty additional to the solatia. To do so would be to inflict a double penalty for the same offence." ae 3h ig "oo. Gif the jury think that the sum is insufficient as a punishment then they must add to it enough Co bring it up to a sum sufficient as a punishment. The one thing they must not do is to Tix sums as . compensatory and punitive damages and add) Chem together. They must realise that the compensatory damages are always part of the total punishment". Let me now the Moist 2 . Will be looking at the actual awards a bil later. mconsider some aspects that have been raised by counsel for plaintiff to help me assess the damages in this case. in assessing point taken by Mr. Mhango is Chat merit, be treated on its own He submitted that this is (u . He MPG The first edamages generally, each case must based on its peculiar circumstances. 2. true even when assessing damages for false imprisonmen Psubmitted that decided cases only act as guidance for amounts bo be*allowed. This seems to have been asserted by our courts in Malawi for from time to time when awarding damages for false imprisonment. Previous cases have been cited. Vhere is, in fact, support even from our neighbours in fast Africa. In “Katende v. The Attorney General (1971) EALR 260, 261 Phadke, J. PI ao ta an I "Both counsel referred to several decisions of this court relating to quantum for damages awarded in These decisions have furnished a furnish material liltimately such cases ...-. helpful guidance but they cannot for formulating a comparative basis. the damages should be such as the court considers reasonable in all the circumstances of a case". 49) #i It must be obvious from this case that ultimately the court has t6 look at the particular case and, as 1 have repeatedly said because of the nature of the injury that is being compensated in b mt i : t 5 f i t 7 s 2S NPN OND repens wate 1 eamprnqacncwe.ae 26 SPW Re eee AORN EON ey 5 Dr oS arate racmenen rap RVG ee PAREN Ty Wee Gur ee 2 e SS TESA T EON TROT A rity TERRORS eT: PEE ne Barr craeen 5 2. fi f 408 EINES Ty ¥ ie we ‘ Nay “ sonmentl, Lhe assistance which can be had fram ous cases is real ly muted. In Malawi, however, a further has arisen and counsel has raised it in his submission. e 3 wT = ee Mr. Mhango has submitted that awards in Malawi have been on time spent in prison. From there, Mr. Mhango thinks the @ is an hourly or daily rate which is established by Uta courts and followed profusely. TI have stated persistently that this®is not the case. First, [T have stated that the cases which atettelated to some degree bo time were based on a misconception wh: ¢h emanated from a decision where the award was not actually baséd on the time of imprisonment although time was one of the fadtors that were considered. Secondly, | have been able to démdastrate by looking at the various awards in the Hieh Court and* those confirmed by the Supreme Court of Appeal that there is no: uniformity. In looking at the cases that have been cited by counsel, this is confirmed. In ADMARG v. SlLambuli M. S. C. A. Civil Appeal No.6 of 1984; K4,000.00 for three days was apptoved. This would give a daily rate of K1,333.00 or an hourly rate of K55.00; yet in Malemia v. Optichem (Malawi) Ltd. Civil Cause No.387 of 1985, K800.00 was awarded for Emprisonment of thirty minutes. This would give an hourly rate of KL, 600.00 ty.a daily rate of KI9,200.00. This cannot be reconciled with an-award of K40,000.00 for false imprisonment of thirty days in Banda v. Southern. Botllers Ltd. Civil Cause No.42 of 1987, Surely, the decisions in both the High Court and the Supreme Co Et are not clear on awarding damages in relation to time. ‘Some @idecisions seem to confirm the traditional view which is PRP ‘essed in the East African case Katende v. The Attorney Genéfal that I referred to earlier. This seems to be the view in“England for the learned authors of McGregor on Damages, 14th Agttton, state at. paragraph 1537: "The details of how the damages are worked oul in false imprisonment are few; generally it is not a pecuniary loss but a Loss of dignity and the like }and is left to the jury's or judge's discretion. | The principal heads of damage would appear to be the injury and liability, i.e. the loss of Lime considered primarily from a non-pecuniary view- ‘point and the injury to feelings i.e. the indignity, mental suffering, distress and humiliation with any attendant loss of social status. This will be s included in the general damages which are usually awarded in this case; no breakdown appears in the ' cases" After reviewing all these cases, in Bula v ADMARC, Civil No.1189 of 1991, 1 coneluded as follows: "In my view, there is more in supporl of the view point. that damages to be awarded for false imprisonment should really be left to ee PET re Rg rime meter petieg ETT Me RET _ & . i f SITE RRS ERE nn ee ime oon ¢: 3 ¥ & 5 2. 3 &B f £ 8 ra & i: f: . ; 4 . b, Rosie is LAST nh paca TNE aa (°C 685 Y = \ SS — “Se Bb court Co determine after taking inlo acceunt all the circumstances of the case including time. fThe problems that arise when time becomes the sole asis of the award is that such an approach is dikely to ignore circumstances, both of ager. ral fem and mitigation, which may attend a particular case adn certain cases, the circumstances of the case be more pertinent to the quantum of ceamages f for, obviously, imprisonment in ESowreralaus and horrible circumstances even bor short Lime may do more damage to the plaint itt Hathan a protractcd or elongated imprisonment in fotherwise innocuous and harmless. circumstances. (ir This is understandable because damages for false AG 8g aeniadmpr i isonment are an award not only for loss «ol vkskee Liberty , which in some way can be related to time ‘but also for loss of reputation and status which ware not related to time. The approach, theretore, kShould be to leave it to the court to decide quantum in the circumstances of the case" eieeieeNow coming to the particular case, this is surely a case » whereyexemplary damages should be awarded. The plaintiff was sentenced to 4 years imprisonment with hard Labour for the _offehte which he had committed for which he was convicted. The State’ Felt that this sentence was wholly inadequate; they appealed. That. sentence was enhanced almost three times over to eléveh years imprisonment to reflect the seriousness of the of Féfice and to allay fears that might have been there as to the ‘security of the nation. Then thereafter to keep the man for another nineteen years without any court order or cemviclion shocks every sense of justice or punishment. ven if it may be ynéeded that some surveillance had to be made lo ascertain the eecurity risk, a fact which should have been ascertained in the elaveh years he was there, it would appear Lo every average man thatha ct” Ls irresponsible to delain a man for another ninebeen yeats}. beyond whal is expected of a government which runs i affairs including security in a manner in which it should and nothwill yonilly interfere with the basic rights of fits citizens, tor EEBedom and opportunity for personal achievement and progtes The ignominy in this case lies in the magnanimity in which® public officials disregarded the constitutional and legal avenues available to justify the incarceration or release of the plaintiff. The point here is how much would Uhis Court award to a man. who was adequately punished for his wrongs but is kept irresponsibly in circumstances we have déaevibad Por nineleen years?) In my mind, this is a case where not only should he be adequately compensated but a case also where those public officers who are called upon to act within the confines of the Law. and authority should pet the signal that the Court will award’ such damages as would prevent and deter the repelition of nas happened. For, obviously, this case will go tnto the AA ON cg ae ra meer alate ery hg Tene? ; anndls of history as an example of bow a modern government t ars its citizens. Even if I was tempted to look at the ae '§ that have been made in Lhese courts in otherwise very ifinmdéuous cases, if compared to this one, it is still very compensates t he difficult to come up with an award that plaintiff for the loss of liberty and opportunity Chat he hers suffered by his incarceration. Indeed if | were boa tow - daily rate, | Lert eo : Me? *Mhango's submission that there is an hourly o ywoukd Lock the finances of the whole economy Co compensable Che saci a TARTS * : 3 : ppLaghei fe in this case. a ‘ nf In compensating the plaintiff for what be has suffered. | all the circumstances of the case. In ‘must: take into account particular case the unjustified and protracted detention of . eiplaintiff is a serious consideration. Mr. Munthalio bas been “deprived of his liberty for close to two decades. In thal Spetiod he has lost opportunity for reform, rehabilital fom and babsorption in the society . It must always be understood that ultimately the best institution for rehabilitation is nol prison 4, OrlLa detention camp. Tb is the socicty. For with its benefits and: burdens, adversities and advantages, it shapes the destiny “ofymany and mostly for good. Mr. Munthali must be compensated confinement “for! the anguish, agony and dcebasement of solitary nd being cut-out from association and contact with socicly. ‘awards for false imprisonment are, so to speak, al large. awards reflect society's discomfiture of the wrongdoer! s a mants Liberty and society's sympathy to the plight The awards, therefore, whether meled by "TH other words the whole process of assessing, damages where they arc "at large" is essentially a matter of impression and not addit bon" re per Lord Hailsham, L. C. in Broome v. Cassell & Co (1972) ALC. 1027, 1072. Vime is one of the Factors to be taken into gcount . Tt is not the only consideration. In this particular case, in awarding damages, both the rd mask be borne in Rookes Vv. SOR REE EIN RN IE gaits D0 rane ea ast compensatory and punitive aspects of the awa From the Statement which I quoted earlier Pron dmind. i ‘Barnard, Lord Devlin did not envisage two awards, one reflecting : St. “he compensatory aspect and the other punitive one. What was : tbeing championed was that the jury or judge must aim at adequate i “compensation. Tf the adequate compensation equally punitive, : the judge or jury should award that sum. If the award for ja compensation was not punitive enough, upon ascertaining the : ‘wrongdoer's ability lo pay, a larger sum, notoan additional sum, reflect the punitive element. The fshould be awarded to dSplitting of an award into a compensatory one and a punitive one pas deprecated in the House of Lords in Broome v. Cassell & Co, qin Zambia, in Vines veep per Limited vo Rapwepwe. “awards were sSplit. IT think Chere is better sense in a single award which Aten S . i & be x ¢ b ¥ pon , C OBSEPe F0- ih MN, ee - : ie - said c Ls . . . a Eaboth the compensatory and punitive aspect of the award. We Ft Y, the same principles in sentencing criminals. We do e two sentences to reflect deterrent and punitive WF the sentence. At the end of the day one has to look Whole award and see whether in itself it both compensates th and adequately punishes the wrongdoer. In this case takd tO account the longevity of the imprisonment and the ct ances in which Mr. Munthali was treated, bearing in mind tha § is not the sort of conduct which a civilised 4 At should be allowed to perpetrate, 1] award )00.00 for false imprisonment. This award adequately ates the plaintiff and punishes the defendant for jore to compensate for the losses that have been fas a result of the destruction of the crops and the }property mentioned in evidence. The value, however, has eetiavery easy to ascertain. The evidence has been of ePassistance. I think Chat in that case the approach to . a2would be the one taken by the court in ALtorney General v. Msonda’&Others (1974) ZLR page 220. Most of the claims that were;not;established, in circumstances much Like the present, wérée’ disallowed for lack of proof. I have said that liability is: notidenied. I would think, however, that the circumstances the plaintiff's property was gotten into would justify ‘for exemplary damages. I would award K4,000.00° for ht Land and goods. é parties can appeal to the Supreme Court. if C NU Ne\ AS D. F. M@ayngulu REGISTRAR OF THE’ULGH COURT OF MALAWI - ___f 7 — ana ere i <n cisnansn nian siaciceemacnita tannin _ EE , teases RT Ob bi, ton C oe