Ngwira v AG (Civil Cause 1461 of 1993) [1994] MWHCCiv 1 (4 January 1994)

I I -- IN THE HIGH COURT OF MALAWI PRINCIPAL RE GISTRY CIVIL CAUSE NUMBER 1461 OF 1993 Rf. TWEEN : NCHACHI NGWIRA . . . . . . . . . . . . . . . PLAINTI FF ATTORJ\IT;;Y (;ENERAL .. . . . . . . . . . . . . . DEFENDAN T AND , CORAM : l n F Mwaungulu, Registrar Kasamhala, Counsel for the P laintiff Ndalama (Mrs), Jnternreter OIUJFll rr_,r· d;1rn;1,s:~e'., f' or f'alsn t. .i.rnr~ o f the i mpri~~o r1ment ;1c t--ion by Mr· , This i~; ;111 Hf imprisonment~. The n J ;iin!-,i f f was a L t h e I Cont r actors . • l\lf~wirn . an accounta nt with Royal Oak Mai. nten a ncc a nd Building Thr. defendant is the Attor·n cy Genera], sued under ;:~ the Civi l Procedure (Suits by and against Government and Puhli1~ , OfficC'rs) Act. t This action was commenced by wri t on the 27th of October, 1993. ; ~ Judg ment was ohtained in default of notice of intention to · defend on the 15th of Dece mber 199 3. Th e judgment wa s interlocutory and damages had to b e assesse d. The assessment was set for the 10th of January, 19 94 . The defendant was served with the notice. He did not anpear. : olaintiff . I h ear d evidence from the I re served rul:ing. · The nla:intiff was arrested on 2Sth March, 1992. He was on a bus · on his way home. · was 7.00 O ' c lo c k in the eve ning. ' abo ut multiparty. Before the bus got to Machinjiri, a Mr It was the l as t bus for Machinjiri. The time In the bus, he started talkinR Mwa nyongo, working for Sanjika Palace , ordered the bus to go to Blantyre Police Station. The plaintiff was left th ere. At t he Police Station, h e was manhandled. He was h~t in the face and the eye. He was there for a couple of days without food , food brought by relations was denied him. He s l ept in very cruel ci rcum stances . He had no bl anke ts. The r oom was infested with bitin g in sec ts. the prison was overcrowded. He - was in orison uo to 30 th June, 199 2 . While in priso n, the plaintiff, who h ad no difficulties with his eyes , developed ~evere e ye problems. He , as we saw, was attacked in the iye. eyes . At t h e time o f condition deteriorated because initi a lly h e could no t be allowed to ~o to the hospit al . Eventually, h e was. I ~ prison, murd er suspects attacked his the .assessmen 1- the eye was swollen. The It was too late. 2 I . ... I . ... ; . ~j ··,:.i i1l \IJ; ' .,f, - . . - 2 - t Queen Elizabe~:1 Cen\t~al Hospit al , doctors ~r,co mm ended, t.h rit oth eyes be rem9.~ed. Ihe plaint .i. ff refused .. {(11._H~ f?lead ed wl.lh the doc tors to do : w.hatever could be done to ·sa\te his eyes. • fter a week, the doctors told · him . that one c-· uld be alright. e stil l refused ~~o have the other one removel, He changed ospi tal~ to l\lkhoma M:iss:i.on Ilo~P,.i tal. He wasf ~qld that they ould stJ.11 have to remove ueen Elizabeth Hospital . annot read . He 1·:, ;;annot walk'j\ ::b";;3t eps . . He _s ' medical report '-f .rom Nkhoma ' :.:. Syri,od confJ.rmJ.n · He . t~ow cannot see ·'· none eye. He shades . tie .- medical . t17-e. · eye. He refused !-f He came ba c k to , ·· •. Lt .. ' 1 '·i --l ~ _J -,,i~ f i •, ·• · ~ , ,; •.~ 1 I _Tt) e re i~ t,,: ondi tion of the ':.eye. · · ' ·· l .:.:,r. ~ - ' The plaintiff, as.1 we have seen, was an accoun .ant at the time of the arrest. He w'as earning K800 per month. ·J\'f,\ the time he was rrestP.d he had pk.ssed a n in'te/r-V-iew to obtain;~~;- job that would ave pushed his e'~rnings to Kt·;soo a month. : J ~:- used to do part t:i.me bus:i.ness in ·'}iis pr-ofes5:i.o'n~ff- , ... ' " "' ,•.r.. · . ~ . .. , ";r ;• i ·:•);4 .. i ·\· ·' t~·'j- . • •' '" f a. J s e The p l a :i. n t i f f sh o u l d be awa rd e d d am age s ' personal injuries occassioned by the false imprisonment and loss of e mployment opportunity . For fal se imprisonment, the plainti ff should be awarde d damages for loss of liberty and injury to feelings. For loss of liberty, the award cover s t h e depriva l of freedom and the time wa ste d in prison. For injury to feelings, the plaintiff is entitled to damages for the imp r i son m c n t , f o r 1 humiliation and wounding to his pride . Obviously regard must be ,l . , ~ had to the treatment received while the plaintiff was in prison. J · The olaintiff's imprisonmkent was long. ~~ the sum of K60,000 for false imprisonment. I award the pl aintiff }~ · Apart from old rule s of pleading, in an action for false ? (Lowden vs . Goodrick (1791) Peake 64; and Pettit v s . The damages ar e assessed in the imprisonment, the plaintiff could recover for any resul tant · inju ry. Addington (1791) Peake 81) . same way as in personal i njury c Jaim s . The plaintiff her e went through consi d erabl e pain with the problems of the eye. He has suffe red virtual lo ss of sight . He will not be able t o s ee the things he used to enjoy. He will not be able to pursu e th e joys of his emoloyment . He has lost sight completely in one ey e . He has considerable difficulty in the ot her eye . plaintiff K30,000 for pain and suffering and loss of ameni t ie s . I award the . For loss of earnings the plaintiff was earning K800 per month. He is aged 45 years. Of course I have to tai5.e into ac c oun t that there wa s real prospect that he wa s goi ng to -increase his ea r n i n gs . M r K ::1 s am h ;1 l ;1 before S'.) , when he wo11lrl h;1vc sc i1/.t ' <I Lo earn the mon ey, j s no t a pp roach c cJ u s e the mu 1 t :i. p J. i e r o f I O y c; 1 r s I i n L h a t ~~ ;1 i d s i. n cc th c p l n int j f f h ad l O . The mo. l; t e r :;h r,11 ld awarding damag es for loss of e arn:i ng, courts aim a t awar ding s uch a sum that, in the t:ime the plaintiff would hi:3v e c ontin u ed to work, g ive s l:he plai11t.iff an annuity whi ch h e ha~, Jo s t as a r es ult of 1.he injury. The: rnultiplicant :is th r. 3/ . . . . ' fi.a;: i··~. .~ 'i plai nLf'f'' ,., ;c1clual' Ci:1. n1ir1g s wher e , ' i i-:.,, - t~_ tncy arc cl,";n·ly f1t ~r'c , it1!.o ac~punt. I.he' ! 'J1J_1c :Jw;,t'd shou1d t <1k1: f ;1ct . {;:·J as,-c- ,, t· :11n;ib l 1' . '~·. j} thc mcrney js oaic;l.; before i. t is earn ed a11d wou t d produc e :rn rr·om',. ,,·. ~h ncome. The award should be such a s 11m which : 'by reduct i.on Tl).;is means that !he . ~,. i capi tal and inco~e gives the annuity lo st . ,-·:_.~-;~,-~·.multiplier can n~{. er, in the norma~. ci. rcurnsta~--:~_es, be th e rnrn1ber ·l:: . •.of yea rs lost . Th r~ r e is It , ''{;Ti5_~: ,however a decisi?Jl of this Court wh ic h goes c.ti;inter to thi s . <':'./; ·,/is t he decision J"f Sabadia vs . Dows e tt Engindfring Ci v:i l C:,w;c ~( 'INumber 171 of 19$,2, unrepor~ed~ ~h~ c h w~s_fof~9 wed recentl y in f:)-·. ~ Kundwe vs. Stage coach Mal awJ. L1.mi ted, C 1. vi 1 Ca,µse Num ber 90 7 ,, f '.'t;tf19?1,. unreported j; The decisions are not righ:i as a mat ter 1,f .., .. :_~_-,_Pr inc 1 p l e . ~~ is would result :'fn o vercomp; ·'Flsation. lh ;\ , , w . ... ,__ ., .;-; ~ '?! -~-~~ ~ Damc1ges for nr.rc~·riary lr)ss , such a s 1 os~; of g: ner al bu s1ri,:s'..:; , ,.,;4,.~moloymcnt , a t~e n_pt co n :, idere? remote in a cl,:q,i,m for f alse , \~: 1mnr1sonment. Childs vs. Lewis, •;~ los s of ea rnings \ of K.6:'f, 7 3 6 would be ju sti fied· und er this ( 1924) LJO T . ·-L . R. En o . Thi; J}'orinc :i ple . In a~.;'.l- I award the p1ainti ff Kl23 1 1f7 36. ~ ~ -~ in Bla n tyre ~ ~ ! -~ '. i 1 ; . , \ 1 ;,: ...,; ,~- ,.,.- ~ '- :-,( r-i:;