Mintrozo v Malawi Revenue Authority & The Attorney General (Personal Injury Cause 298 of 2018) [2025] MWHCCiv 8 (19 June 2025)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION PERSONAL INJURY CAUSE NO. 298 OF 2018 (Before Honourable Justice Mambulasa) BETWEEN: ROSELYN TAMBULA MINTROZO........................................ CLAIMANT -AND- MALAWI REVENUE AUTHORITY................................ 1ST DEFENDANT -AND- THE ATTORNEY GENERAL…………………................2ND DEFENDANT CORAM: HON. JUSTICE MR. MANDALA D. MAMBULASA Mr. Jones Gulumba, Advocate for the Claimant Ms. Linda Kambuwa, Advocate for the 1st Defendant 2nd Defendant, Absent Ms. Caroline Machado, Court Clerk/Official Interpreter Mrs. Elizabeth Banda, Recording Officer/Court Reporter JUDGMENT MAMBULASA, J Introduction [1] The Claimant’s claim against the Defendants is for damages for: (a) loss of expectation of life; (b) loss of dependency; (c) exemplary damages; and (d) costs of the action. [2] It is alleged that on or about 8th November, 2017 the Claimant’s husband, Limited Mintrozo, was working on his regular job as a ticket salesman within Limbe Bus Terminal when Malawi Revenue Authority (MRA) officers in the company of an armed police officer drove into the said bus terminal in an un-numbered white Toyota Land Cruiser to seize a minibus for which duty had not been paid. [3] The actions of the Defendants’ agents raised attention within the said bus terminal such that a crowd began to gather around them. Out of curiosity, the Claimant’s husband, the deceased herein, also went to witness what was going on. [4] Apparently, scared by the crowd, the 1st Defendant’s officer ordered the 2nd Defendant’s officer to fire his gun. The police officer fired the gun and ended up shooting the deceased herein on the head. [5] As a result of the said shooting, Limited Mintrozo died on the spot. A postmortem report revealed that the cause of death was due to haemorrhage shock due to head injury secondary to gunshot. [6] The Claimant alleges that the death of Limited Mintrozo was caused as a result of the negligence of the Defendants’ agents, and/or servants and that the Defendants are vicariously liable for the same. Particulars of negligence were supplied as follows: 6.1 Failing to give a verbal warning to the crowd that a gun was about to be fired; 6.2 Failing to fire a warning shot or in any other way scare away the crowd; 6.3 Firing a shot without ascertaining whether the deceased was armed with any weapon or not; 6.4 Failing to attend to the deceased or to arrange for his immediate transportation to a hospital after shooting him. [7] The Defendants are jointly and severally vicariously liable for the actions of their officers aforesaid. Particulars pursuant to Statute Law (Miscellaneous Provisions) Act were supplied as follows: 7.1 The names of the person for whose benefit this action is brought are: (a) Roselyn Tambula Mintrozo, wife to the deceased; (b) Sige Jekeseni, mother to the deceased; (c) Eliza Mintrozo, daughter to the deceased; (d) Charlie Mintrozo, son to the deceased; (e) Sevelyn Mintrozo, daughter to the deceased; and (f) Mayamiko Mintrozo, son to the deceased. 7.2 The nature of the claim in respect of which damages are sought is: (a) At the time of death, the deceased was 43 years old. He enjoyed good health and lived a happy and vigorous life. He was a ticket salesman at Limbe Bus Terminal where he was earning a daily commission on the sale of tickets. From his activities, the deceased was able to earn an average of MK50,000.00 a month, half of which he would give to his wife. [8] Apart from the immediate support that the Claimant has been deprived of by the deceased’s death, the Claimant has lost substantial support which she was likely to enjoy for the remainder of the deceased’s life. [9] The conduct of the Defendants’ servants and/or agents was oppressive, arbitrary and unconstitutional so that the Claimant is entitled to exemplary damages. Particulars were supplied as follows: 9.1 Killing of a peaceful law abiding citizen within the confines of public premises without due process of the law; and 9.2 Refusal to render any assistance to the slain victim immediately following his shooting. [10] As a result of the actions of the Defendants’ servants and/or agents, the Claimant has suffered loss and damage. [11] Each of the Defendants filed their defences in the matter. [12] The 1st Defendant denied liability for the death of the Claimant’s husband and put her to strict proof of the same. [13] The 1st Defendant admitted its presence at the Limbe Bus Terminal and that it drew public attention but denied ordering any police officer to fire their gun. [14] The 1st Defendant denied any negligent conduct on its part which could be attributed to the shooting and the subsequent death of the deceased. [15] The 1st Defendant denied having been an agent to the death of the deceased and the subsequent loss of expectation of life and loss of dependency for the Claimant. [16] The 2nd Defendant denied that its armed police officer drove into the compound of Limbe Bus Terminal to seize a minibus for which duty had not been paid. The 2nd Defendant contended that the said police officer was contracted and was in total control of the 1st Defendant. He acted with orders and instructions from the 1st Defendant. [17] The 2nd Defendant contended that it could not be jointly and vicariously liable for actions arising from orders and instructions of the 1st Defendant. Issues for Determination [18] There are five issues to be determined in this matter. These are: 18.1 Whether or not the Defendants owed a duty of care towards the Claimant’s husband? 18.2 Whether or not the Claimant’s husband died as a result of the Defendants’ breach of their duty of care towards him (the deceased)? 18.3 Whether or not, there was an employer-employee relationship between the officers of the 2nd Defendant (Malawi Police Service) and the 1st Defendant? 18.4 Whether or not the 1st Defendant is liable for the actions of the 2nd Defendant’s (Malawi Police Service) officer? 18.5 Whether or not the Claimant is entitled to costs of the action as claimed or at all? The Law [19] In terms of section 153 (1) of the Constitution, the Malawi Police Service shall be an independent organ of the executive which shall be there to provide for the protection of public safety and the rights of persons in Malawi according to the prescriptions of the Constitution and any other law. [20] According to section 153 (2) of the Constitution, the Malawi Police Service shall enjoy only such powers as are necessary for the protection of rights under the Constitution and the maintenance of public safety and public order in accordance with the prescriptions of the Constitution and the law. [21] Section 16 of the Constitution provides that every person has the right to life and no person shall be arbitrarily deprived of his or her life; Provided that the execution of the death sentence imposed by a competent court on a person in respect of a criminal offence under the laws of Malawi of which he or she has been convicted shall not be regarded as arbitrary deprivation of his or her right to life. [22] In Rep –vs- Joshua Cheuka & Others1 Mzikamanda J, as he then was, stated that the right to life “is the most fundamental of all rights in that it is a prerequisite for the enjoyment or exercise of all other rights”. [23] Section 19 (1) of the Constitution is to the effect that the dignity of all persons shall be inviolable. Commenting on the right to dignity, the High Court sitting in a constitutional matter in the case of Mayeso Gwanda –vs- The State2 stated that: Section 12 (1) (d) of the Constitution provides that the inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect human rights and views of all individuals, groups and minorities whether or not they are entitled to vote…According to section 19 (1) of the Constitution, this right is inviolable. Recognizing a right to dignity of human beings is an acknowledgement of the intrinsic worth of human beings. Human beings are entitled to be treated as worthy of respect and concern. [24] The Police Act3 also spells out the general functions of the Malawi Police Service. Section 4 provides as follows: 4- (1) The Police Service shall be employed in and throughout Malawi for: (a) the prevention, investigation and detection of crime; (b) the apprehension and prosecution of offenders; (c) the preservation of law and order; 1 Criminal Case No. 73 of 2008 (High Court of Malawi) (Lilongwe District Registry) (Unreported). 2 Constitutional Case No. 5 of 2015 (High Court of Malawi) (Principal Registry) (Unreported). 3 Cap. 13:01 of the Laws of Malawi. (d) the protection of life, property, fundamental freedoms and rights of individuals; (e) … [25] In the Malawian context, the use of firearms by police officers is regulated by law. Section 4 (2) of the Police Act is relevant in this context. It is couched in the following terms: For the performance of any of the functions under subsection (1), the Police shall be entitled to carry and to use arms, but shall so use such arms only as authorized by this Act or by any other law. [26] Section 44 of the Police Act is on the power to use firearms. It provides as follows: (1) Subject to subsection (2), any police officer may use any firearm against- (a) any person in lawful custody charged with or convicted of a felony when such person is escaping or attempting to escape; (b) any person who by force rescues or attempts to rescue any other person from lawful custody; or (c) any person who by force prevents or attempts to prevent the lawful arrest of himself or of any other person. (2) For the purposes of subsection (1) – (a) resort shall not be had to any firearm as authorized under paragraph (a) of that subsection unless the police officer has reasonable ground to believe that he cannot otherwise prevent the escape and unless he has given warning to such person that he is about to use such firearm against the person and such warning is unheeded; (b) resort shall not be had to any firearms as authorized under paragraphs (b) and (c) of that subsection unless the police officer has reasonable ground to believe that he or any other person is in danger of grievous bodily harm and that he cannot otherwise effect such arrest or prevent such rescue; (c) no police officer shall, in the presence of his superior officer, use such forearms as authorized by that subsection against any person except under the orders of such superior officer; and (d) the use of firearms as authorized under subsection (1) shall as far as possible be to disable and not to kill. (3) The authority vested in a police officer by subsection (1) shall be in addition to and not in substitution for any authority to use firearms vested in a police officer by any other law. (4) Any police officer, after using any firearm, shall make a report in writing or in the prescribed form to the officer in-charge of his police station. [27] At international level, there is also soft law governing the use of force and firearms by law enforcement officials. One such law is the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. [28] Principle 4 requires that law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result. [29] Principle 5 provides as follows: Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: (a) exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; (b) minimize damage and injury, and respect and preserve human life; (c) ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment; (d) ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment. [30] Principle 9 is also relevant in this matter. It states as follows: Law enforcement officials shall not use firearms against persons except in self- defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. [31] The last principle to be considered for our purpose is 10. It is couched in the following terms: In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident. [32] It is trite learning that in civil matters, it is the claimant who bears the burden of proof. In Commercial Bank of Malawi –vs- Mhango4 the Supreme Court of Appeal observed as follows: Ordinarily, the law is that the burden of proof lies on a party who substantially asserts the affirmative of the issue. The principle was stated in the case of Robins v National Trust Co [1927] AC 515 that the burden of proof in any particular case depends on the circumstances in which the claim arises. In general, the rule is Ei qui affirmat non qui negat incumbit probatio which means the burden of proof lies on him who alleges, and not him who denies. Lord Megham, again, in Constantine Line v Imperial Smelting Corporation [1943] AC 154, 174 stated that it is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. The judge said that the rule is adopted principally because it is but just that he who invokes the aid of the law should be the first to prove his case because in the nature of things, a negative is more difficult to establish than an affirmative. However, in a civil action the burden of proof may be varied by the agreement of the parties - see Bond Air Services Ltd v Hill [1955] 2 QB 417. [33] It is also commonplace that the standard of proof in civil matters is on a balance of probabilities. In Miller –vs- Minister of Pensions5 Denning J said: 4 [2002-2003] MLR 43 (SCA). 5 [1947] 2 All E. R. 372. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not,” the burden is discharged but, if the probabilities are equal, it is not. [34] Negligence is defined as an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something that a prudent and reasonable man would not do.6 [35] In order for the claimant to succeed against the defendant in an action alleging negligence, he or she must show or prove that: (a) there was a duty of care owed to him or her on the part of the defendant; (b) that there was a breach of that duty by the defendant; and (c) that he or she suffered loss and damage as a result of the breach of that duty. The decisions in a chain of authorities on this point include, Donoghue (or McAlister) -vs- Stevenson7 and Gross -vs- The Registered Trustees of Banja La Mtsogolo.8 [36] If the possibility of danger emerging is reasonably apparent, then, to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, there is no negligence in not having taken extraordinary precautions. Per Lord Dunedin in Fardon -vs- Harcourt-Rivington.9 6 Blyth -vs- Birmingham Waterworks Co. [1843-60] All E. R. 479-480 per Alderson, B. 7 [1932] All E. R. 1. 8 [1998] MLR 103. 9 (1932) All E. R. 81. [37] It is also trite law that a claimant will be liable for contributory negligence, “if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might hurt himself, and in his reckonings, he must take into account the possibility of others being careless”.10 [38] Contributory negligence by the claimant merely reduces the damages recoverable by him or her in proportion to the degree of his or her fault. It cannot see a claimant’s action fail. And so, contributory negligence is not a complete defence to a claim in negligence, and proving it cannot result in a dismissal of the claimant’s claim.11 [39] It is also trite law that where a witness who is available is not called, it may be presumed that his evidence would be contrary to the case of the party who fails to call him. [40] In Maonga & others –vs- Blantyre Print and Publishing Co. Ltd12 the defendant failed to call the company secretary who wrote the letter of complaint to the police. It also failed to call the police officers who effected the plaintiff’s arrest. All these witnesses were available. [41] The court also quoted Banda J, as he then was, in the case of Leyland Motors Corporation Malawi Ltd –vs- Mohamed13as follows: 10 Jones –vs-Livox Quarries [1952] 2 QB 608. 11 Jussab –vs- Mussa and another [1991] 14 MLR 116 (HC). 12 14 MLR 240. 13 Civil Cause No. 240 of 1983 (High Court of Malawi) (Principal Registry) (Unreported). Failure to call a material witness to testify on a material point may damage the case of the party who failed to do so as that failure may be construed that the story is fictitious. [42] The dicta in the Maonga and Leyland cases referred to above were quoted with approval by the Supreme Court of Appeal for Malawi in BP Malawi Ltd –vs- NBS Bank Limited14as follows: We think that the court was indeed entitled to attach significance to the absence of the company secretary, who was available to the appellant, to give evidence at the trial. [43] Section 30 of the Courts Act15 provides that costs are in the discretion of the High Court. It provides as follows: Subject to this Act, the costs of, and incidental to, all proceedings in the High Court, including the administration of estates and trusts, shall be in the discretion of the High Court; and the discretion shall be exercised in accordance with the practice and procedure provided in the rules of procedure made by the Chief Justice under section 67 of this Act. [44] Order 31, rule 3 (1) of the Courts (High Court) (Civil Procedure) Rules, is couched in the following terms: The Court has discretion as to- (a) whether costs are payable by one party to another; (b) the amount of these costs; and (c) when they are to be paid. 14 [2009] MLR 39 at 46. 15 Cap. 3:02 of the Laws of Malawi. [45] When the Court decides to make an order about costs, then, the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party. This is clear from Order 31, rule 3 (2) of the Courts (High Court) (Civil Procedure) Rules. [46] There are exceptions to the general rule, where a successful party shall not always be entitled to have an order for costs against the unsuccessful party. For instance, where a successful party recovers no more than nominal damages, it may be ordered to pay the unsuccessful party’s costs.16 The successful party may also not be entitled to costs where the issue on which a party succeeded is raised for the first time by amendment at a very late stage.17 The Claimant’s Evidence – Direct Examination [47] The first witness was the Claimant herself. She shall hereinafter be called, CW1. CW1 adopted her witness statement and it was accepted as her evidence-in-chief. CW1 told the Court that she stays at Mkwate Village, Traditional Authority Kapeni in Blantyre. [48] CW1 testified that she was the wife to the deceased herein, Limited Mintrozo. [49] The deceased is survived by 5 children as follows: (a) Jacqueline –born in the year 2000; (b) Eliza-born in the year 2003; 16 Texaco Ltd –vs- Arco Technology Inc. (1989) The Times, 13 October 1989. 17 Beoco Ltd –vs- Alfa Laval Co Ltd & Anor [1995] QB 137. (c) Charlie-born in the year 2006; (d) Sevelyn-born in the year 2009; and (e) Mayamiko-born in the year 2013. [50] CW1 recalled that she received a telephone call on 8th November, 2017 at around 10:00 o’clock in the morning informing her that her husband had been killed while at work. [51] The telephone call was from Mr. Chaima, a friend to her late husband. He asked her to go to Limbe Bus Depot. [52] CW1 left home immediately and headed for Limbe Bus Depot. As she approached the market, she saw that there was commotion going on. It appeared that the police had fired teargas and people were running away. [53] CW1 met his late husband’s nephew, Sandikonda Njalanchino, who took her to the police unit situated along the Limbe market. [54] They both left with one of the police officers for Limbe Police Station where they were asked their names and were left without being helped. [55] CW1 told the Court that a few hours passed without any officer attending to them. Then, an officer came and asked them their names again. The police officer asked CW1 to explain what had happened. CW1 told him that she knew nothing. [56] Mr. Glory Mpasakuphe, CW1’s relation then joined them at Limbe Police Station. He led them to see another police officer so that they could perhaps be assisted. The police officer told them that because they had come in the company of another police officer, it meant that they did not require his assistance. [57] Mr. Mpasakuphe was visibly annoyed with the attitude of the police officers. He was then working for the High Court of Malawi. He drove away to complain to one of his superiors and they later came back together. In the company of Mr. Mpasakuphe’s superior, they were then given access to see the officer in-charge for Limbe Police Station. [58] Mr. Mpasakuphe made it clear that the relatives of the deceased needed to be issued with a postmortem report for them to be sure of the cause of death of the deceased. After hearing their story, the officer in-charge advised them to leave and come back the following day to collect a copy of the postmortem report. [59] The following day, on 9th November, 2017, CW1 went back to Limbe Police Station in the company of some male relations. The men went inside and met the officer in-charge who told them that he still did not have a postmortem report. [60] From Limbe Police Station, they went to Queen Elizabeth Central Hospital mortuary. They were informed that they could collect the body of the deceased. When they inquired about the postmortem report, the mortuary staff told them that they did not have one. At that point, as a family, they refused to collect the body of the deceased and insisted that they could only take the body after being given a postmortem report. [61] On 10th November 2017, Francis Zimora and Gocha Mintrozo went to Limbe Police Station again to demand for the postmortem report. However, instead of being given the said report, they were locked up in a cell for some hours. [62] Some more of the male relations went to Limbe Police Station to enquire why the two men had been locked up. Without giving any explanation, the police then gave them the postmortem report and released the two men from custody. [63] CW1 and her family were given a photocopy of the postmortem report and it was tendered in evidence and was marked as, “RTM 1”. [64] Upon receipt of the postmortem report, the body of the deceased was then collected from the Queen Elizabeth Central Hospital mortuary for burial. The 1st Defendant provided them with a motor vehicle to ferry some people to Nsanje where the deceased hailed from. [65] The police provided the family with funds amounting to MK310,000.00 to cater for some of the funeral expenses. The funds were received by Francis Zimora and he was made to sign a handwritten certificate of receipt which was exhibited and marked as, “RTM 2” [66] Burial of the deceased took place on 11th November, 2017 in Nsanje. CW1 returned to Blantyre shortly after the funeral. Since then, she never had any contact either from the Malawi Revenue Authority or the Malawi Police Service regarding any possibility of paying compensation for her husband’s death. [67] The two institutions have failed to pay her any compensation despite the fact that it is their officers who needlessly caused her husband’s death. Cross-examination [68] In cross-examination, CW1 told the Court that her husband was working as a bus conductor for Kilimanjaro Buses. [69] However, she did not know how much her husband was earning per month. [70] CW1 confirmed to the Court that all her five children were alive. [71] Asked whether CW1 knew the person who shot dead her husband, she said that she did not know them. [72] CW1 testified that she did not know why her husband was shot dead. [73] CW1 told the Court that she did not know how her husband died. [74] CW1 testified that she was told by other people that her husband had been shot dead and that even the police did not explain to her the circumstances that led to her husband’s death. [75] Asked about her relationship with Mr. Glory Mpasakuphe, CW1 explained that he was a relation. While he was working for the High Court, his involvement in the matter was because of his relationship with the deceased. [76] CW1 told the Court that the Police did not tell her anything else with regard to the postmortem report. [77] Asked whether CW1 understood the postmortem report, she told the Court that she did, more particularly the section on the “remarks 8” where it was recorded “that the deceased was amongst the angry mob that attacked the police officer and the Malawi Revenue Authority officials while on duty and in the process the police officer fired in the air to disperse the crowd. Accidentally, the bullet landed on the deceased and he died on the spot”. [78] CW1 seemed to appreciate that her husband was amongst the angry mob that attacked the police officer and the Malawi Revenue Authority officials. [79] Asked to say as to who fired in the air, CW1 told the Court that according to the report it was the police officer and the firearm was not directed at the deceased, per se. [80] Asked further whether the shooting was intentional or accidental, CW1 told the Court that according to the postmortem report, it was accidental. [81] CW1 told the Court that the postmortem report described the mob as angry and that it had surrounded the police officer and the Malawi Revenue Authority officials. [82] Asked about the attitude of the police again, CW1 told the Court that the police never cared for them and never attended to them while at Limbe Police Station. [83] CW1 told the Court that she never met any Malawi Revenue Authority officers at Limbe Police Station. [84] CW1 also never asked to meet any Malawi Revenue Authority officers. Asked to explain why, CW1 told the Court that they had thought that all the officers were police officers. [85] CW1 confirmed that as a family, they received the sum of MK310,000.00 from the police. The money was meant to assist them with funeral arrangements such as buying food items (ration), embalming fee and transport. [86] On transport, CW1 confirmed that Malawi Revenue Authority offered the family a motor vehicle, a lorry to be specific, to ferry people from Blantyre to the funeral in Nsanje. [87] CW1 told the Court that her daughter Jacqueline got married and that she is a business lady. Eliza also got married and works as a tailor. While Charlie is in school. He just finished writing his Malawi School Certificate of Education (MSCE). [88] CW1 explained that Sevelyn is in Form 1 and Mayamiko is in Standard 4. CW1 also confirmed that the years of birth of the children indicated in her witness statement were correct. Re-examination [89] In re-examination, CW1 told the Court that initially, she did not know who had gunned down her husband. [90] CW1 testified that she did not know why her husband was gunned down by the police officer. [91] CW1 further told the Court that she did not know how her husband was gunned down. [92] CW1 explained to the Court that she did not witness the incident that led to the killing of her husband because she just received a telephone call to go to Limbe Bus Depot and when she arrived at or near the said depot the police had fired teargas and everybody was running away and there was commotion. [93] CW1 told the Court that she did not know the person who authored the postmortem report which she tendered in evidence and was exhibited as, “RTM1”. [94] CW1 testified that she did not know whether the person who authored the postmortem report was at the scene when the incident happened. [95] CW1 told the Court that she merely confirmed what was read out to her based on the postmortem report but that she did not entirely agree with the contents thereof. [96] CW1 was referred to exhibit marked as, “RTM 2” and agreed that as a family they received the sum of MK310,000.00 from the Police. However, she did not personally handle the money as it was received by Francis Zimora. [97] CW1 explained that out of the sum of MK310,000.00 she was later given the sum of MK50,000.00. This marked the end of re-examination. The Claimant’s Witness No. 2 – Direct Examination [98] The second witness for the Claimant’s case was Mr. Charles Chikuni. He shall hereinafter be referred to as CW2. CW2 told the Court that he hailed from Teyateya Village in the area of Traditional Authority Chikowi in Zomba District. [99] CW2 told the Court that in the year 2017, he used to live at Machinjiri in Blantyre District and was working as a minibus call boy at Limbe Bus Depot. [100] CW2 recalled that on 7th November, 2017, he went to work at around 6:30 in the morning and that the deceased person was at that time already at work at Limbe Bus Depot issuing tickets for the minibuses. [101] At around 10:00 a.m. he was calling for passengers for a minibus taking the Mangochi route together with his colleagues. [102] As he was working, there came a certain lady wearing a black pair of trousers and a white shirt. His colleagues and him called out to the lady to board the minibus on route to Mangochi. She responded that she would board later because she was waiting for her colleagues. [103] Shortly afterwards, he saw a police officer who approached the minibus where he was but stood at a distance. [104] The lady then made a telephone call and started walking towards the rear end of the minibus whilst talking on the telephone. She then came to the front of the minibus and at the same time a white Toyota Land Cruiser without registration number followed her. The lady then called the police officer who was still standing at a distance, to come to where she was. [105] They both got into the minibus that was on route to Mangochi and asked the passengers to disembark. The lady explained that the minibus had been seized because the owner had not paid custom duty for it. It was at that point that they realized that the lady was from the Malawi Revenue Authority. [106] The minibus driver, Mr. Stephano was then obliged to drive the minibus away in the company of the Malawi Revenue Authority officers and the police officer. The white Toyota Land Cruiser followed behind the minibus. [107] The following day, 8th November, 2017 Mr. Stephano, the driver of the minibus that had been seized the previous day, came back to Limbe Bus Depot, but this time, he was driving a different minibus. [108] At around 10:00 a.m. on 8th November, 2017, the lady who had seized Mr. Stephano’s minibus the previous day came to Limbe Bus Depot again. She was in the company of a police officer. This time they drove in using the same white Toyota Land Cruiser which they had parked within Limbe Bus Depot. [109] As the witness was going about with his duties, CW2 noticed that the Malawi Revenue Authority lady was again trying to seize the other minibus that Mr. Stephano had brought to Blantyre. There developed a heated argument between the lady and Mr. Stephano. [110] Passengers who had already boarded the minibus were asked to disembark. However, Mr. Stephano, the driver defiantly told the lady and the police officer that he would not allow them to seize his minibus again. CW2 then took out the minibus’ ignition key. As this incident was developing, the deceased was attending to another bus which was parked at some short distance from Mr. Stephano’s minibus. [111] The police officer then tried to intervene to force Mr. Stephano to drive the minibus, but CW2 openly refused to do so. At this point, some commotion began to develop between Mr. Stephano, the police officer and the lady. A reasonable number of people also began gathering around the minibus to see what was going on. [112] The deceased heard the commotion and decided to see what was going on as well. The deceased made his way to the scene and stood somewhere at a distance from the minibus in question. [113] The police officer then came out of the minibus, and noticed the crowd around the minibus. It was at this point that CW2 heard the Malawi Revenue Authority lady instruct the police officer to shoot. Her words in Chichewa were, “tangowombelani”. [114] It was not clear to CW2’s mind what the lady meant by her words. Of course, he did not think that she meant that the police officer should shoot into the crowd. [115] However, shortly after the lady’s instruction to the police officer, CW2 heard a loud sound of a gunshot. CW2 then noticed the deceased, tumbling on the ground. [116] The lady and the police officer got inside the white Toyota Land Cruiser which had no number plate and drove away. It was clear to everyone including the police officer that the deceased had been shot. Nevertheless, no attempt was made by the police officer or the lady from Malawi Revenue Authority to assist him or rush him to the hospital. [117] From his observation of the body, the bullet hit the deceased on the side of his jaw and came out through his head. It was clear that he was dead not long after the shooting. Some lady on the scene offered her chitenje to cover the body. [118] The people at Limbe Bus Depot who had witnessed the incident were angry and started a commotion. The police came after about an hour or so to restore peace and order. They used teargas to disperse the crowd which had burnt motor vehicle tires and other debris. The police then took the deceased person’s body to Queen Elizabeth Central Hospital mortuary. [119] As far as CW2 was able to observe, the deceased did not say any word to the police officer or the lady before he was shot. Neither did he act in any threatening manner that could have prompted the police officer to shoot him. According to CW2, the shooting was totally unprovoked. Cross-examination [120] In cross-examination, CW2 told the Court that he knew the deceased herein, Limited Mintrozo. [121] CW2 told the Court that he knew the deceased because he too was a minibus call boy. He emphasized that to his knowledge, the deceased person was not working for any particular company. [122] CW2 was referred to paragraph 8 of his witness statement and confirmed that the deceased was issuing tickets for the first minibus and that minibuses belong to different people. [123] CW2 confirmed to the Court that he goes to work as early as 06:30 a.m. [124] CW2 further confirmed to the Court that Limbe Bus Depot is a busy place. [125] CW2 told the Court that he does not remember every person that he meets but remembers those that he meets frequently. [126] Asked to confirm whether he would be able to identify every person that he meets and their clothing, he said he would not, unless they are those that he works with closely. [127] Asked whether he had worked with the Malawi Revenue Authority lady, CW2 said that he had never worked with her. [128] CW2 told the Court that what was so particular about the Malawi Revenue Authority lady was that she had pretended to board the minibus but eventually did not go on the trip. [129] Asked whether the Malawi Revenue Authority lady was the only woman in Limbe Bus Depot at the time, CW2 told the Court that she was not the only one. [130] CW2 told the Court that while he saw the Malawi Revenue Authority lady talking on the phone, he never eavesdropped the conversation. [131] However, immediately after the telephone conversation, a white Toyota Land Cruiser came. It might have been a coincidence. [132] The Malawi Revenue Authority lady later boarded the minibus. She used the passenger door to do so. [133] Asked how far CW2 was for him to be making all these observations, he told the Court that he was near. He was standing at the rear door of the minibus. [134] CW2 told the Court that he heard what the lady said to the driver. He said that the lady had told the driver that they were seizing the minibus. [135] CW2 told the Court that he saw Mr. Stephano remove the ignition keys. At that time, he was near the driver’s side together with the police officer. [136] CW2 told the Court that the police officer was not talking to Mr. Stephano. [137] Asked whether CW2 was telling the Court the truth, he said that he was. However, in his witness statement he had stated that the police officer then tried to intervene to force Mr. Stephano to drive the minibus, but Mr. Stephano openly refused to do so. [138] Asked where the deceased was during the confrontation, CW2 told the Court that he was about 20 metres away issuing tickets for another minibus. [139] CW2 told the Court that a lot of people had gathered and he could not be specific as to the number as he did not count them. [140] The deceased person joined the crowd when he heard Mr. Stephano talking to the Malawi Revenue Authority lady and the police officer. [141] CW2 testified that he changed positions. He was no longer near the driver’s side in front but had moved some distance away. [142] CW2 told the Court that he did not see how the police officer shot the deceased. [143] However, after the deceased had been shot, people gathered to see what had happened. [144] Asked whether these people were angry, he said they were. They started burning tires after some hours. Re-examination [145] In re-examination, CW2 told the Court that he was able to identify the lady who had put on the black pair of trousers and white shirt because of the incident that had happened. [146] CW2 testified that during the second incident, the police officer stood near the passenger door of the minibus. [147] Asked what he meant when he said that he did not witness the shooting of the deceased, CW2 repeated that he just heard the words, “tangowombelani” and a shot was fired and later he saw his friend, the deceased, down. Defendants Evidence [148] The 1st Defendant called no witnesses to testify on its behalf. It made a submission of no case to answer at the end of the Claimant’s case. [149] The 2nd Defendant too, called no witnesses to testify on its behalf and did not even attend trial. [150] Upon being satisfied that the 2nd Defendant was duly served with the Notice of Hearing and also considering that this was an old matter, the Court proceeded with the trial as scheduled. Analysis and Application of the Law to the Facts [151] The first issue that this Court has to resolve is whether or not the Defendants owed a duty of care towards the Claimant’s husband? [152] In the first place, the burden of proving negligence on the part of the Defendants’ officers lies on the Claimant and her witness. Similarly, the burden of proving contributory negligence on the part of the Claimant lies on the Defendants. [153] The standard of proof in civil cases is on the balance of probalities. This simply means that a court is entitled to say that based on the evidence led before it, it is of the view that “it is more probable than not” that the fact asserted is made out. [154] In this case, the Claimant, through the testimony of CW2, alleges that her deceased husband was an innocent bystander. He had come to the scene to merely watch what was going on. The deceased did not act in any provocative manner towards the Defendants’ officers or pose any imminent threat or danger to them in any way.18 [155] CW2 was clear in his testimony that there was a confrontation between the 1st Defendant’s officer and Mr. Stephano, the driver of the minibus which the 1st Defendant’s officer was trying to seize for alleged non-payment of customs duty. When Mr. Stephano refused to surrender the minibus, the 2nd Defendant’s officer tried to intervene to force Mr. Stephano to drive the minibus to the 1st Defendant’s office but he refused to oblige.19 [156] The question then is: why would an innocent bystander be shot by a police officer unless the police officer was negligent? [157] Advocate Linda Kambuwa contended that police officers have a duty to preserve law and order as well as protect life and property and when doing so, they may use a firearm where necessary. Police officers do not just fire shots at people without a cause. [158] She submitted that the evidence adduced by CW1 in the form of exhibit marked as, “RTM1” clearly showed that the deceased had attacked the 1st 18 See Paragraph 119 above. 19 See Paragraphs 110 and 111 above. and 2nd Defendants’ officers as they were executing their duties at Limbe Bus Depot. [159] The said exhibit also showed that during the attack, the officers of the Defendants were surrounded by angry people and that in an attempt to preserve order and life, the police officer fired in the air to disperse the crowd. [160] The aim of firing in the air was to disperse the angry mob and stop the attack. The question then arises, what would a reasonable police officer have done in such circumstances where life and limb were threatened? [161] The answer is simple. A reasonable police officer could have acted in the same manner in the face of eminent danger to preserve life. There is no telling what could have happened had the firearm landed in the hands of the deceased person, taking into account that it was loaded, so she further contended. [162] Advocate Linda Kambuwa argued that CW1 was not present at the scene and so her evidence was hearsay, things that she had heard from third parties and should be rejected. [163] In the same vein, CW2 told the Court that he did not see the police officer fire the gun. He heard a loud sound that a gun had been fired and the next thing he saw was the deceased fall to the ground.20 [164] Advocate Linda Kambuwa argued that CW2’s evidence was so inconsistent and contradictory that it too, should be rejected by the Court. 20 See Paragraph 147 above. In one vein CW2 said that he was at the rear of the minibus, in another, he was near the driver’s seat at the front and in another at some distance. [165] The law is very clear that the Police are entitled to carry and to use arms, but shall do so only as authorized by the Police Act or by any other written law.21 [166] Section 44 (1) of the Police Act describes three circumstances in which any police officer may use any firearm. [167] The first is where any person in lawful custody charged with or convicted of a felony when such person is escaping or attempting to escape. However, there is a condition to this. Resort shall not be had to any firearm unless the police officer has reasonable ground to believe that he cannot otherwise prevent the escape and unless he has given warning to such person that he is about to use such firearm against the person and such warning is unheeded. [168] The second is where any person who by force rescues or attempts to rescue any other person from lawful custody. Similarly, there is a condition to the usage of the firearm which is that resort shall not be had to any firearms unless the police officer has reasonable ground to believe that he or any other person is in danger of grievous bodily harm and that he cannot otherwise effect such arrest or prevent such rescue. [169] The third and last one is where any person who by force prevents or attempts to prevent the lawful arrest of himself or of any other person. Again, there is a condition to the usage of the firearm. Resort shall not be had to any firearms unless the police officer has reasonable ground to 21 See Paragraph 25 above. believe that he or any other person is in danger of grievous bodily harm and that he cannot otherwise effect such arrest. [170] Section 44 (2) (d) of the Police Act emphasizes that the use of firearms as described in the three circumstances above shall as far as possible be to disable and not to kill. [171] Section 44 (3) of the Police Act drives home the point that the authority vested in a police officer in the three circumstances described above shall be in addition to and not in substitution for any authority to use firearms vested in a police officer by any other law. [172] This means that the three circumstances described above are not the only situations in which a police officer may use a firearm. Other written law may provide other circumstances. [173] However, there is a common thread running throughout the use of a firearm. It is that conditions are always imposed before a firearm is used. Without attempting to exhaust the conditions, they include the following: (a) there has to be reasonable ground to believe that a crime is being committed or is about to be committed; (b) either the police officer himself or another person’s life or body is in danger; and (c) a warning must be given to the person that a firearm is about to be used and only use it when such warning is unheeded. [174] What all this entails is that at law, any use of force and firearms by law enforcement officials should be commensurate with due respect for human rights, particularly the right to life and human dignity. [175] Furthermore, whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved. Killing a person should never be the be-all and end-all of the use of a firearm in every situation by police officers. [176] Where a firearm has been used, law enforcement officials are to ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible time. [177] The law also requires that where a police officer has used a firearm, he shall make a report in writing or in the prescribed form to the officer in- charge of his police station. [178] It is beyond debate that police officers have a duty bestowed upon them by law to protect and respect human rights of all persons in Malawi in the execution of their duties and functions. In the present case, the right to life and human dignity of the Claimant’s husband was at stake. [179] In his testimony, CW2 never alluded to any warning being given by the 2nd Defendant’s officer before the firearm was used as is required by law. Again, no-where in his testimony did CW2 state that the Defendants’ officers were under any attack or that there was a serious threat to their lives or body from any person in the crowd that had started gathering due to the confrontation that was going on between the Defendants’ officers and Mr. Stephano, the driver of the minibus, to warrant the use of a firearm by the 2nd Defendant’s officer. [180] Even though the 1st Defendant denied in its defence to have ordered any police officer to fire their gun, CW2 testified that he heard the 1st Defendant’s officer give an instruction or order to the 2nd Defendant’s officer to shoot. While he did not see the police officer shoot, he heard a loud sound of a gun being shot and immediately thereafter saw the deceased fall to the ground having been shot. [181] It is clear from the foregoing that the 2nd Defendant’s officer did not use his professional judgment to assess the situation whether to shoot or not. It would seem that he acted on impulse on the instruction or order of the 1st Defendant’s officer when he fired the gun. The 2nd Defendant’s officer had a duty and responsibility to ensure that before using the firearm, he used it in accordance with the prescriptions of the law as described in the previous paragraphs. [182] The 1st Defendant did not call its female officer to come to court to testify on its behalf if indeed she never gave the instruction or order to shoot or not. So too, the 2nd Defendant did not call their officer to come to court to testify and controvert the Claimant’s version of events. This Court is entitled at law to hold that it is because they were both aware that their story is fictitious.22 [183] In addition, “remarks 8” in the postmortem report that tries to explain the circumstances that led to the shooting of the Claimant’s husband is actually hearsay evidence. It is what the police officer in charge of the case reported to the clinician who conducted the postmortem. The clinician just reproduced it as was reported. While the postmortem report is admissible and relevant, however, it does not have probative value on the circumstances that led to the shooting of the Claimant’s husband and the Court will not attach any weight to this aspect of the report. 22 See Paragraphs 40, 41 and 42 above. [184] In the final analysis, this Court concludes that there existed a legal duty of care between the Claimant’s husband and the 2nd Defendant’s officer who carried and used a firearm on the material day. [185] The 2nd Defendant’s officer breached this duty when he shot the Claimant’s husband and killed him instantly when he was just an innocent bystander and was no-where near the Defendants’ officers. The 2nd Defendant’s officer fired the gun without any warning to the crowd that he was about to use the firearm and that such warning was unheeded as required by law. [186] Further, the 2nd Defendant’s officer shot to kill rather than to disable the Claimant’s husband who was unarmed and did not do anything that threatened the lives and limbs of the Defendants’ officers according to the testimony of CW2. The 2nd Defendant’s officer was therefore clearly negligent in the manner in which he used the firearm on the material day as there was no proportionality between the use of force and the firearm and the objective that he wanted to achieve. He blindly implemented an instruction or order from the 1st Defendant’s officer. [187] The duty of care was also breached by the 2nd Defendant’s officer when he failed to ensure that assistance and medical aid were rendered to the deceased at the earliest possible moment in case his life could have been saved. He just drove away. The deceased’s body was taken to Queen Elizabeth Central Hospital mortuary an hour or so later by the Police. This disposes of the first and second issues for consideration. [188] The third issue for consideration is whether or not there was an employer- employee relationship between the officers of the 2nd Defendant (Malawi Police Service) and the 1st Defendant (Malawi Revenue Authority). [189] The Court has considered the statement of case and notes that this particular issue was not specifically pleaded by the parties. In addition, the Claimant led no evidence on it. Consequently, the Court holds that it is no issue. [190] The fourth issue is whether or not, the 1st Defendant (Malawi Revenue Authority) is liable for the actions of the 2nd Defendant’s (Malawi Police Service) officer. [191] The Court having already found that it was the 2nd Defendant’s officer who breached the duty of care as a police officer towards the Claimant’s husband as he was required to use his professional judgment before using the firearm and also act in accordance with the prescriptions of the law, it is no longer necessary to consider this issue. [192] In view of the foregoing, the Court finds that the Claimant has made out her case on a balance of probability as against the 2nd Defendant. The 2nd Defendant cannot disown its officer simply because he was negligent in the manner in which he used the firearm. The police officer remained the employee of the Malawi Police Service through and through, notwithstanding that he was contracted to the 1st Defendant. It is for that same reason that Malawi Police Service rendered some financial assistance to the Claimant’s family. In short, the 1st Defendant is not liable for negligence in this case. [193] Furthermore, section 44 (4) of the Police Act requires that after using any firearm, a police officer should make a report in writing or in a prescribed form to the officer in-charge of his police station. That report could never have been made to the 1st Defendant simply because the police officer had been contracted to the 1st Defendant. This again shows that the police officer was at all material times an employee of the Malawi Police Service. [194] In this case, the Defendants called no witnesses to testify on their behalf. The Court therefore finds that there was therefore no contributory negligence on the part of the Claimant’s husband. [195] The last issue for consideration by the Court is whether or not the Claimant is entitled to costs of the action. Applying the principles on costs, the Claimant having succeeded in the action herein as against the 2nd Defendant only is awarded costs of the action. [196] Damages and costs of the action payable shall be assessed by the Registrar of the Court in default of any agreement by the parties. The damages here are the normal compensatory damages and not exemplary as the Court was not satisfied that this case deserved the award of exemplary damages. [197] Any party dissatisfied with this judgement has a right to appeal to the Supreme Court of Appeal. [198] Made in open court this 19th day of June, 2025 at Blantyre, Malawi. M. D. MAMBULASA JUDGE 38