Thyangathyanga v AG (Civil Cause 395 of 1994) [1995] MWHCCiv 22 (24 January 1995)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 395 OF 1994 BETWEEN: N. H. A. THYANGATHYANGA . . . . . . . . . . . . . . . . . . . . . . PLA I NT IFF -an d- . THE AT TORNEY GENERAL . . . . . . . . . . . . . . . . . . . . . . DEFENDANT CORAM: R. R. Mzikamanda, DEPUTY REGISTRAR Mr Msiska for the plaintiff RULING Th e ma tter c ame before this court for asses sment of damages. Th e plaint i ff is represented by Mr Msiska o f Chizumila Msiska a nd Company and The Attorney General never ap peared in this mat te r since i t commenced. On the date of assessment of damages the defendant fai l ed to atten d cou rt and did not explain his absence notw ithstanding that he wa s duly served with summons for assessment of damages. Also dul y se rved on the defendant was a summons for ame n dment of writ and s tat ement of claim. Before he led evidence on the assessment, Mr Msiska applied to a mend the writ and statement of cla i m in t h e manner duly serv ed on n ot conteste d. I allowed the amendment because it was dul y served on the de f endant who never contested it. That appl i cat io n was the defendant. t o He t hen moved The evi dence of the plaintiff, the only wit ness in the matter i s th at in February, 1972 he was employed in t he Civil Service. He firs t wor ked in the Tudiciary f o r a peri od of three the office of the Region a l Engineer years. (Works) wh ere he wo rked for four years before he we nt to the Post Office . He wo rked in the Post Office f o r five ye ars and he was poste d to Fore stry wh e re he worked for two years. All along he had be e n a Cler i ca l Officer. He was promoted t o the position of Senior Cle rical Officer and was moved to the off ice of the Controlle r o f Stores. He was then post e d to th e De partment of Information where h e worked for two and a h a lf ye a rs befo re he was interdicted o n an allegation the office on fire in an effort to conceal a that he h ad se t theft he h ad c omm i tted in the office. He was a Senior Stores Cl erk . - 2 - in stores de stro ying the proc ess. What happ e n ed was that during the n ight o f 18th June, 1986 one of his a ssis t ants John Kambani negl i gen t ly l eft an electric heater on in th e s to res ware house at the time he knocked off. The said el e c tri c heater caused a fire which b urnt the office down, this was discove r ed i n the morning, the police were i nformed . The police visited the offic e and took photographs. Then the y arrested the l oc ked up at the plainti f f a nd a John Kambani. police s tati on f o r four days without being rec o rded statements. While t he p laint i ff was severely beaten by the po l ice at the time he was i n cus t ody, John Kambani was treate d nicely because time a he was a hu sban d Member of Parli a ment. The plaintiff was beaten on each of the four day s h e was i n police custody. Thereafter both of them t o Chi chiri Prison where a week late r John Kambani were take n in Chichir i Prison for six was rel e ase d. The pla i ntiff was months. t o Miss Viola Mi tole who was a t two were When the The At Chic hir i Prison the conditions were horr ible. Showers Four hundred inmates would b e crammed in a inadequate. were f o r up to one hundred in-mates. He was sleeping on cell me an t the floor. The c ells had toilet facilities insi de. An inmate would be defi ca ti ng while other inmates were eati ng meals which He was let ou t of the cell they ha d brought He would be togethe r wit h o t her inmates for a short p e ri o d. cleaning the pre mi ses every day without us i n g appropriate cleaning too ls. Feases would land on his hands an d face. Meals were not pro perl y prepared because both nsima and porridge would have wee v ils. He h ad breakfas t at 10.00 a.m a n d lunch at 2.00 I n con sequence of the poor prison cond i ti ons there were p. m. frequent deat hs. Inmates would be sub ject e d to harrassment by prison warders . Five people would die each night. the cell. to On 22n d December, 1987 he was taken to Blan tyre Police Station where h e was recorded a statement and was released on bai 1. I n 1990 he was In 1992 he wa s acquitted by discharg e d due to lack of evidence. the Chie f Re side nt Magi s trate, Blantyre, on no case to answer. He got h i s job bac k and he also got his salary arrear s. He was charged with arson and the ft. He s aid tha t the police went about telling people that he was thie f and an arsonist. His character has suffered. He said that he had those of his lost chance of promotion because colleagues have r i s e n t o a P7 grade in the Civil Se r vice and his juniors then are now his seniors. He claim damages for damage to his r eput ati on and for his havi n g lost promotion chances. His family ha s s u ffered owing to his interdiction . Counsel fo r the plaintiff has cited before me a number of cases in whic h assessments for damages were made an d awards of In the case of Fordson Banda V Sobo Civil up K40,0 0 0 we re ma de. 4 1 of 1 987 Makuta CJ awarded K40,00 for false Cause No . imprisonment las ting 40 days. In M. M Sind i v De Ross & Company Ci v. Caus e No. 1 28 of 1982 Unyolo J awarded K700 for false imprisonme nt las t i n g 30 minutes. In ADMARC v St amb uli Civ. - 3 - Cause No. 6 of 1984 the Malawi Supreme Court of Appeal awarded K4,000 for unlawful detention for three days while in Billy Juma v Attaf Civ. Cause No. 154 of 1988 Mkandawire J awarded Kl0,000. In H. Tembo v Industrial Dev Group Civ Cause No. 153 of 1993 an award of K25, 00 was made for a false imprisonment for 4 days while the case of Zilondetsa v Cold Storage 1994 case in unrep. Tembo J awarded K30, 000 for false imprisonment for 21 the cases cited by Mr Msiska who rightly days. submitted that these cases are merely guidelines. He asked this court to award K300,00 for false imprisonment. He asks Kl00,000 for loss of advancement He asked for K1000 for defamation. in the Civil Service. These are in The evidence shows that the plaintiff was in prison for over six months. the imprisonment was not justifiable because the fire was caused by the negligent act of another and that other had admitted this early in the police inquiries. It is clear that The conditions in prison were subjected to beating and teasing. imprisonment. bad and the plaintiff was I award Kl 80, 000 for false The plaintiff has got three more years before he retires. He argues that his chances of advancement in the Civil Service have been lost. They certainly have been reduced and al though he &ot his arrears he needs to be compensated for the reduction in his prospects for advancement. I award him K60,000. remarks were published. The plaintiff says he had been defamed and that he claims for defamation. He says that policemen were going out to beer parties saying that he was an arsonist and thief. Surely he should have been able to find some of the persons to whom these The persons at the beer defamatory parties who heard in establishing this head. He mentioned of some Asians to whom the think it would have been prudent to remarks were published. call at the remarks were least one of published. On the evidence on the record I find it difficult to give an award on this head. This head has not been proved. I make no award on it. remarks could have assisted him the persons to whom the I In all I award the plaintiff K240,000 and costs MADE in Chambers on this 24th day of January, 1995. (l;:7 RR Mzikamanda DEPUTY REGISTRAR