Makandanji v Murry t/a Road and Farm Preparation Co. (Civil Cause 1438 of 1992) [1994] MWHCCiv 32 (28 January 1994)

!fl TIii': IIICII C'(llJWI' UF MAL/\Wl P 1'1 I i'l C I I' J\ I.. rn: C: I ;:; nn C 1 V I I , C /\ U S E N U M I\ F, l'1 L /\ 3 B / ~J? llFT\vEEJ\l: S/\M F MAKANDANJI ...... . ... . ... . .... PL/\IN'l'lFF -and- AZ MURRY t/a ROAD AND FAl'iM PREPARATION ... ... DEFENDANT COMPANY CORAM: MWAUNGULU, REGISTRAR Asc:,ani , Counsel for the Plaintiff Jcre, lnter"pr'cter' ORDEn 'I'll(' rl1,l'1't)rl;rnl 'l'h1' 11l:1i11I i rr I l l 1111: ; :wl 1r111 (l1·l ;;1q, 1'1·v1:;1,r· 111 :1:, :1 i:: ;1 ii11i lri1't'. l'l 'J(l. The: plni11I I r·r· 1 1iH't', l 9 CJ 1 . f':11:0;1:: 1rnpr·i,3onment. cmnloycd l1i1n took out thi1, :1ction f'Ot' darn:i. P/' 1'01· Judgment was obtajncd jn defau l t of' notice or inten t.i_on to de f c n d on the 9 th o f Feb n i cH' y judgment. Damages were to be assessed. There was an aonointment for this for 6th Aori 1, 199 3 . ca1 led for that day. On 8th June, 1993 the de Cendant put .in ;:rn apn1ication to set aside judgment. The summons was set for the 20th of June of June 1993. The summons was not cal1ed on that day. On the 5th January, 1994 the plaintif f obtained an appointment for assessment of damages for 28th January, 1994. The defendant was served with the notice of apoointment. On 28th of January, when to pay K3,000.00 damages. I heard evidence, l ordered the defendant The case was not i n t e r 1 o c u to r' y I t w a s a n In the statement of claim, the prayer, the plaint iff is claiming damages on the "foot ing of aggravcJ_ted damages". Munthali v Atto rney GeneraJL Civjl Cause number ~2 of 1993, I held that the phrase "aggravated damages" was wide enough to cover a claim for examplary damages. Exemplary damages, in the High Court, however, must be spcci f'icaJly pleaded . Order 18, rule 8 provides : ln "A claim for exemplary damages or f'or provisional damages must be specifically pleaded together with thc facts on which the pa1~ty pleading reljr'!s". - - statement of claim, the The rule was introduced to counter the ru li n g of the Court of Appeal in Bro ome v Cassell & Co . Ltd . , of (19 71 ) 2 Q. B. 354. The Court of Appeal had overruled the d ecis ion of Lawton, J. in the High Court . Practical l y the r ule requires two things of the plaintiff. First, jn the body of the plaintiff must plead exemplary damages specifically. He should not, as was done here, make a claim for exemplary damages in the general prayer . Secondly, afte r he has pleaded specifically, he has, in the body of pleadings , to provide facts on which he relies for t he plea. plaintiff asks for aggravated damag es , he d id not nlead specifically . Moreover, h~ d id not provide facts for the plea. Of course in paragraph 5 of the state ment of claim there is reference to malice. This is an aspect of aggravation just as it is a facto r when awarding exemplary dam ages . Since the plajntiff did n ot specifica l ly p l ead exemplary damages, malice should be loo ked at :-1:.:; m,7L\ ,er of flf',,P,r'nvation . In t his case, although in the prayer the 'l'IH' .- 1r·u: :1' !'.-wl: : 1'1':;111 I i1 1,P, 111 l\ 1i: ·, ,11· 1 11l11 in U1i:; 111.-111r11~r-. On 21st May, 1991, while l hc p l :ii r1Lif'f' was at. a build j np_: site, the defendant brought two policemen . He ordered them to arrest the plnint:i ff . The ckf e n cl.crn l cornpLiinecJ th'7l. buildinf~ ::111w r' vi:: 0 1', w.-1:: was in police cu c-~ locly :1 1 fVl.- llc 111j i r': 1 .-111<1 M:rn1~od1i police cjlaLion for two dnys . l o crlll at~ Lile po l ice ,,tntion as soon a s o o s s i b l e police, theref or e, rele ase d the def e ndant on bail . was not prosec uted ti l l this action. l;h c r,lainti ff, his '!'he, pl:1inl.if'f f' i n ;:1 l i ,.:; 1' L he rn :1 l: L c r' . The de f'e nd:rn l. w;ir; li:1.11,:: nf' r·1' rr11 , 11I. . 11 c d i d no I: . The matter ::l 1'.- 1l i 1w, 'l' he t o I awarde d K3,000.00 damages . Mr Assani cited awards of jud ge or jury o n , lo :::;s of liberty and injury t:o feelings, clnd 1-.he they are t h e facts and circumstances of a In English courts, becaus e of difficulties of the the High Court and Supreme Court to heJ p me decide in this matter. Damages for f alse i mprisonment are at large: matters for a particular case. quantifying the matters t:hat are compensated for in false imprisonment number of pon der ab le s , is the case in pe rsonal inju r y . was not brief . A brief imprisonment would be several hours in a day. The im prisonmen t , howev e r, was very short: Taking into account the circumstances o f humiliation of being taken for being a in a broad day light i n appropriate award is K3,000.00. the awards h a ve never been coventional as t he presence of hi s juniors, the l n this case the imprisonment t hief a nd being arrested t he case, the two days. MADE in Chambers this ?[ll; h Day of Januory, 1994 . \ ,, t' 'l,_...,,. / OF MALAWI