Maliketi v AG (Civil Cause 1455 of 1993) [1994] MWHCCiv 16 (14 January 1994)

\IWv't'~ J··wWLe=w/ __, IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1455 OF 1993 ~¼..~ 'fw\;i. A JAMES MALII<ETI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PLAIN TIFF - and - THE ATTORNEY GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . DEFEN DANT COR/\M: THE REGIS'I'R/\R For the Plaintiff, Nyimba Interpreter, Nakhumwa ' 0 R D E R ,,,,A,, ·< .. \ . .,., \ 0. \ ··\ . . , On the 27t.h of October 1994, took out this action against the defendan t, the plaintiff, Mr Maliketi, the Attorney General, claiming damages for false imprisonm ent. The plaintiff is employed 3t the Nat i onal Bank Headqu arters on Victoria Avenue. The defendant is sued on behalf of the ,Judgment on the action was obtain ed by Malawi Government. default. The only issue I heard eviden ce of re maining is the quantum of damages. only one witness, the plaintiff. The def end ant was served with the notice of appointment for assessment of damag es. He did not appear on the appointment to assess damages. It was an interlocutory judgment. The facts that resulted in this action are as follows. On the 25th of May 1992, at the wake of a quest for a change to our system of government, a group of policemen cal led at and the pl ai ntiff's office demanding They, howe ver, drawers. took the plaintiff was teased, pushed and beaten before being taken The plaintiff was not told why he was to Chichiri Prison. arre st e d. He was not charged at all. to Blantyre Police Station wher e They did. the plaintiff to search his des k They found nothing. taken Later, he was to Chichiri Regional Police I t is here where he had an inkling of what he Headquarters. was arrested for. the Regional Police Headquarter s he was beaten. His hair was pulled so that he should reveal who were writing anonymous the plaintiff was in several prisons before he was rele ased on On release, he was told that there was no 23rd July 1992. case against him, save the investigations took a bit too long. It looks letters. like thc'l t At / - 2 - In prison, t he conditions were pr isons were very overcrowded. He had to sleep sitting. was not given any blanket. d e veloped a running stomach; food was not good. that has not disappeared . inhospitable. The The lie Be looked at as a th e scientific measure of In awarding damages for false imprisonment, the Co urts awar d for loss of time and liberty, not in a monetary sense. Th e Cou rt s want to compensate for the plaintiff's tim·e which In this sense, Courts are not con cerned h as b ee n wasteGl. wit h time into degrees, ·s e c onds, h o urs, days, weeks, months or years, although these g ive the re l a tiv e s on which t i me is measured. The wasted time should Time sho uld be be total and cumulated. ju dg ment, In my lo o ked at not as composite, but replete. whil e as cribing awards in relation to hours, days, we eks or mo nth s may prov i de solace to the adherents of consi stency, a b s ur dit y result s if a meticulous and conscientious pursuit the honest i s ma de of awards bys tan d er would probably pardon in bet we e n an imprisonment of three and five years. He would o b v iou s ly be a dispa r ity of awards between ft and Bare arrested at 9.00 o'clock in the h o ur s . mo rning on the same day. A is released an hour be fore the c l ose of the day. Bis released on the dot of the c lose of t h e d a y. to e ach be i mpugn e d because B stayed an hour longer? Or, suppos e A was in prison for 99 days and B for 100 days. Should the re be a d i f fer e nce? time c ould notionally be accumulated and the same award made in ea ch case. In relative terms, a disparity think in the instances postulated, Could an award of the same amount amu se d with r1pproach. Suppos e the t h e I The thrust of the sentence of I do no t a the approach advocates Does the approach flout consistency? In my to describe irnpr i sonmen t think so . . relative ap proach to time. This is not the only instance where the a pproach is used. When sentencing we use relative terms, On ap peal, we like, was the offence serious, grave, etc? as k q uestions, like, was the Cou rt below judgment, similar epithets ma ni f estly excessive? co ul d be used the The questions should be, ap art fro m q u an t um of damages. aggr a v a ting brief, If the imprisonment is brief, a certain short, long, etc .? If the imp risonment l a ti t ude of damag e s should be allowed. is l o ng, a cer t ain latitude of awa r ds should be all owed. In itself, excep tionally long periods, do e s and e n gender the p uni s h c ons is tency. the award adequately compensate the Court should ask c i r c umstances, was · approach will and ultimat e 1 y the plain tiff imprisonmen t tortf e asor? This the The approach still begs the definition of "brief", I think this is " s h or t", "long", " e xceptionally Jong", etc. a n are a where the Supreme Court of Appeal c ould prov ide some dir e ction. the the day, guid el in e s can only offer guidance. At the end o f , the where damages are at large, as in false imprisonmen t I t must be remembered, however, that ~ ~ .. I r G) -- ~.r. OJ JJ ;> JJ C -< .... , ·: 1 I , ~I _j - 3 - lega l from place to place and quantum of damages is a question for the jury. I may also add that what period is bri0f or ~hart may vary from place In cases like the present one it to place and time to t ime. or from one will vary political system to another. Obviously, in a prural istic socie ty that upholds t he rule of law and respects indiv idual freed oms, shorter per i ods can be very long periods. There, two days will be extraordinary and hence a detention for In a country where long and calU,ng for heavier damages. arres ts and and detentions are pervasive, longer times would be brief. The Courts have to take these factors intb account when determining whethe r the I impris onment is brief, short, have adopted lately is to look at time relatively, rather than compositely into days, weeks, etc. I have consid ered two to six months as short periods calling periods of from From six to twelve month s, 1 for awards of about K60, 000. this case, have awarded close the I award K60,000. absen ce of claims for exemplary damages, indiscriminate, The approach to Kl00, 000. long, etc. rampant in In MADE Blantyre. in Chambers this 14th day of January 1994, at ____ ____-/