20030228 TZCA Dar es Salaam

, IN THE COTJPT OF APPEAL OF TANZANIA AT DAR ES SALAAN I (CO RAN: L1WJ.A.,NROSA U0JA0) CIVIL APIEAL NO. 27 OF 2000 BETN REV0 CHRISIOPHEP MTIICIL.& 00 APPELLANT AND T' HON • ATTORNEY GENERAL OF TAIZANIA 00 RESPONDENT (Appeal from the judgement of the High Court of Tanzania at Dar es Salaahi) (Kalegeya, J0) • dated 25th February, 2000 in • J U D G E M E N T MUO,J,A.: In Civil Case No 1414 $f 19914 in the High bolart of Tanzania at Dar-es-Salaam; the plaintiff, PevQ Christopher Mtikila, brought an action against the Attorney General claing damages for false imprisonment, namely: Damages including exemplary damages not less than Sh. 500 million; Interest on the principal amount at 31% interest per annum from the 11th February, 19914 till the date of judgement. Interest on (a) (b) at the Court rate from the date of judgement tilifull and final settlement. Ci'sts. Any other relief deemed fit by the Court. -2- On the 11.02.1994, a Friday, armed policemen with the necessary • warrants, arrested the plaintiff and searched his residence at midday. The plaintiff was thereafter kept in the police lock up over the weekend and released on Monday morning on the 14.02.199+ The cause of the arrest and search of the plaintiff was suspicion on the part of the police, that the plaintiff had seditious materials. From the evidence on record, the plaintiff had, at the material time, four sedition cases in the Subordinate Court5 Although the plaintiff was not charged with any offence during the three days he was in police.iAck i.p at the Central Police Station at Dar-es-Salaam, the register at the said station indicated that the plaintiff had been found in possession of seditious materials. At the trial the plaintiff insisted that his arrest was actuated by malico on the part of the police because no charges were preferred against him. He claimed that he was arbitrarily, oppressively and unconstitutionally kept in the filthy police cells Hence the action for damages for false imprisonment. • The defendant admitted that the plaintiff was arresed and searched on suspicien that he had seditious materials so the arrest • and search were justified, and thence the same were lawfully carried The defendant denied the claim and prayed that the suit be dismissed with costs. - - The learned trial judge found that the police had locked up • the plaintiff beyoid the 24 hours allwed by the law without any ... • - -lawful excuse so thelaintIff suffered falseimprisoninent. The trial judge awarded Sb. 200,000/= general and exemplry damages to the plaintiff.... The decre6 holder was issatisfied with the 3- quantum of damages. He complained that the awarded damages are inadequate. The decree holder also chaileng€.d the trial judge's •refusal to award commercial rate interest of 31% per annum, which reigned at the material time. Hence the present appeal in which the plaintiff seeks enhancement of the.awardd damage, costs of the appeal and the comniercial rate interest withheld by the trial court. As there is no cross-appeal by the respondent, the present appeal is confined to the issues nf assessment of darn es, and the contested commrcjal rate of interest of 31% per annuml during the material period. Mr. Maira, learned, advocate re;resented the appellant. The Attorney General was represented by Mr. Ngwembe 9 learned State Attorney. - The appellant filed three grounds of appeal faulting the • le.rned trial judge for erroneously assessing the claimed damages, to wit: Grund 1: That the learned trial judge erred in law and in fact in 'awarding only Sh. • - 200,000/ as both ,general and exemplary damages. • Ground 2: That the learned trial judge erredin law in not awarding commercial rate interest of 31% per annum from the 'date of the cause of' action to that of judgement' Ground 3: That the learned trial judge erred in law in admitting documents which had not been pleaded in the Written Statement of Defence. - I - • If At' the heaxing of the apoai 2 Mro Maira, i°ea'ned advocate for.the • appellant, dropped ground 3 aic only argud grounds 1' and 2 of the • memo of appeal. tie fai4te6 the learned trial judge for awarding - inadequate genere.l and eenpiary damages without pecif cally • quantifyin - he Øeiiral and exemplary damages He âont..nded that • •- the awarded dama$,s should be increased to reilect tI- rious • violation of the appéllats liberty, freedrrn of moveme:t and the humiliation he suffered in the police cells duing the cekend when the police could have, but did not ava4l to him, polcc sail. Counsel observed that even though the appel:ant had pndin sedtios charges in the Subrdi.-iate Court, on the 11± ?ebruary, 1991.. the polite. who searched the appellantTs residencc for two hours, found nothing incriminating in his possession wi. :, was why i.o charges were drawn against him Mr. Maira ca:•gted the • police for wantonly breaching the human rights of the apellnt, ard called upon the Court to award punitive damages age inst the respondent in ord*r to deterlaw enforcers from abusing human rights aswas the case .here • The advdcate of the appellant cited the,case of Walter versus • AltoolsLtd.19 1fk Vol. 61 Times Law Reports 39 in which M. Justice Lawrence oberved: - . . A false imprisonment does not merely, affect amans liberty, itals affebts his reputat.on6 . The damage continues until it is cause.d to cease by an avowal •. that the imprisonment was fase . In the above case the court stated: • .. in an action for damages for false imprisonment, the trial judge is entitled, in assessing the damages, to take into consiaeration as aggravating the damages any evidence showing or tending to show that the defendant was persevering in the charge which he originally made in bringing about imprisonment, and similarly, in reduction of damages, to consider any evidence given by the defendant showing or tending to show that he had withdrawn or had apologized for the charge in which the false imprisonment proceeded In this case no charges were leveled against the appellant and yet Is was incarcerated in the police cells for three days from midday, Friday, 11th February, to Monday morning, the 1 14th February, 1994 when he was set at liberty. Mr. Maira celled on the court to enhance the damage awarded by the trial court to reflect seriou8- ness in deterring the police from violating individual liberty and free 1 om. The court was also referred to the case of Dumbell versus Roberts and Others 19+ (1) All 2.R. 326 in which the plaintiff ciaim2d damages for false imprisonment after being arrested without a war'ant and detained for some hours by three constables from the Livc. Nool City Police ForceE The plaintiff was charged with the offence of unlawfully possessing soap flakes suspected to have been stolen or unlawfully obtained He was acquitted. He sub- sequently sued for damages for false imprisonment. The constables put up a defence of justification saying that they had reasonably suspected the plaintiff of possessing soap flakes so the arrest . .16 ':• . t • • . .L., • . . . . . .. • 1 • . .--. r 6 • 1• .. . . -, .. .. --- . .' :' . • 3: .. .. . . : . .. •! ' ... .f •• . .. . . -. . .-- : ., : ' • , , ' I , • .. , - . I 4ihcut a warrant was just_ - d0 umbells ase,in or vi3, is dist rguishaole from 4- 1 pres'nt case e''e he appellant was 1 a,x're ted and searched th ac o'cece with Lj law but was not A .. c1ared wth anj offeflce d rg he three 3.ys he languishel .n }e olic lock upor 1ie eekerd .rrQm the evidence on reeord, tIeppe1iant ciamed that De"aué 01 being locked up at t' potiti dt4on mise he hgoic ParIiane1?ry El'ction C2 - ipa1 ¶lterê L lie had been enlisteo to c o- gr sfor te Op cEltiOn. Witn reg. ra to commerci1 rate intere"t I'r. Mairc submitted thctt in viw of inflation anc o, dev1uton, te trial cr sntld have allowed the caiy'( irterest of 31%per annur frdm the tzethe cause of action od o the dae of jud€ement erayed fo b..nceent of bhe dart ages awarded by th rhgh Court irzt*rest A a he comrnercAl (baiik) rate at that te plus costs. hr. Ngwenibe, learned 31.te Attorney rgeci the Court not to . . . riterfere wits the dbftVges aveaed o, che t lal court for the • .• ., ,. . . . .\ .', .. .S . . . . • .• . judge duly 4 exercised u 's c scrion an awa.ded adequate eriera .. .'•, . - •- - F ' aSc 9Yerplar3 d&riages at S Ti. 1learned State Attornef :.. . s - atd that although ho )el .nt had been lawfullf arrested and scar.hed, he was not 'hare w h any offenc D because he ias not chai d with any, offenee b cause Piad four different cases of sc'c ion bending .n the Ditrit Ccurt h cli the Oirecto. of ub.ic cutions intended to conso 'datc. hr Nc.ieibe mai -itained that e la damages, even f aEed by the cot would not in any ?'eter the police whose posibiliy is to arrest s.Dspeets in 5_ . .'. '5' . . - -5 .. . .• ac coi lance wt n the law_. A r I: , t. , . . ' ;,,• • . .0 • 6. , • • , . ', S , /. . - . * . .. . r• •,_ • ' .• , . ' . ., . . . . • I , ..- . , . -'. .. . , ( . ' I 1 As for the canm c im rst of '31 pr a'u', r. Tzorib found no ground for allo1jirg the same saying tne trial cou.rf awarded sufficientinte eat to the appellant. The issue in this appcai is whether the trial judge assessed th& damages orr the correct princaples of law. We are in agreement w lith counsel for the appl1ant, that the leaned trial udgo's assessment of the general and exemplary .3 3 darn3ages was ambiguous and mar ifestly 16V. The learned trial judge ought to have specified the quantum of general damages separately from the quantum of exemplar dariages The omission is ronetheless /1 manor and curable for it did not occason mscarriage of justice to the parities. We dismiss te flimsy defence that t appellant had to stay in custody at the police station becaue the courts do not work ftri holidays and on weekends. Thatis indeed iie positio But it is all the more reasonable, ar.d expected of the police, to give suspcts police bail where the suspects, lake the appellant, had ot been ch'ged with any offence at all. Considering the gravity f arbitrarly depriving ciyils of their liberty by locking them up athout a reasonable or probable cause, the awrded damages of 1 I only Shs. 200,00O/ were manifestly inadequate and 3on the low side. We wish to point out that the circumstances of the appellant's unlawful confinement fall withit tHe ambit of exemplary damages in lack's Law Dictionary to wit danrges on an inrea,sed scale, auarded to .3 thelaantiff over and above whDt will bar4y compensate hm for his poper6y, .3 -. 9 / .L8_ loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the, part of the defendant, and are intended tosolace the plaintiff for mental anguish, lace- ration of his feelings, shame, degrada- tion, or other aggravation of the original wrong, or else to punish the defendant for his evil behavior or t0 make an example of him, for which reason they are also called "punitive or punitory damages or vindictive damages0" The elements of "cppression and 'malice in the above definition of exemplary damages exist in the present case where, for no reasonable or probable cause, the police kept the appellant in the lock up for three days0, In the circumstances of the case, the police oughtto have set at liberty, or, alternatively, grant him police bail pending further investigations. In modern times the trend is to limit the extent and sxpe of exemplth'j dainages This view is demonstrated in the text book, WINFILD and JOLWICZ ON TORT, 11th EdItion by WV.HO Rogers, Sweet & Maxwell Pg 592 - 96 where the learned authors discuss exemplary damages at Page 593 by stating: In any case in which damages are at large, that is, where they cannot be precisely calculated in money terms, the court may take into account the motives and conduct of the defendant, and where these aggravate the plaintiffs injury the damages will be correspondingly increased These 'aggravated damages are truly compen- satrry, being for the injury to the plain- tiff's proper feelings of dignity and pride4, ce?nplarydamages, on the-other hand,. are - not compensatory but ai-e-.-awardd ..t. punish,. the...deendant and to deter him. from similar behavior in the fuiure .. . . .. ..Th -av e 1-ai'ed autho .n-te thaTh in Rookos versus J3a.rnan 1- ' 1 96: ) .4.. .. thHus o rü f.1ough Ird Dvlin 9 estat ed .:.' th law on. exemplary damagco and h.o s'c.vereiy limited thi soe an& it is only in rare cases tn excniplary darnage> are llowed., .. .. , tresing that - aard f e ;plry damages must be. st.ict1y justifiable as compensation fr the injury susincd - !In Lard Delvi's view ex2mplary - . 'rna$ are in prir.iplc objcctinahle .. . - . b_~ e .a upe, they confvo ho cLvil and the -. criminal fugot iovlb uf he law and, apart from where they arc lowc.d by èaes tatute,. exemplary damagcs can now be •' • . - - W'e.din 4y two classes o1' cases: . .. - bitary or 1tIonai action-by servants.of. the .. ". . . qovernment. . ., . ... (b) Cases where the deenctantc condi i et .. . has been-calculated by him to make - . . p'ofit for hiraself. . ... .. . . . - • .. om the ov i is appc.nt that exemplary dages fpcus o.. op reesin d .'bitrarines nr uiiconstituion.. ...-' public ffieera. .n this r'ps". we az- s tshc.d Lrlat ti-ic. awsrd f exemplary aage w ,arrar e- and j us - - On ground two of appee., the issue of 'ae then bank rate of 31% per annum, finds support in the case of joro Furniture Mart Ltd. 7rersus Tanz_nia Electric SuppiyCompan Tt4 1995 T.L.R. 205 which Mr. Maira listed, but did not Prefer t n his submission. On th çuestion of cdmmercial and court rate ierest,the O.ourt of Pppe.l, in the Njoro Furniturc: Iart Ltd. casp held: 1. Since in principic the quantum of damages • has to lie such as to restore an injured party, as far as p)ssible, to the position prior to the injury, it is correct in law t•inciude in the 'ward of damages an element calculated to offset tile effect of inflation and deva 1 .uation. • 2. It is apparent froi:' the provisions of Section 29 of the (lvii procedure C(,de, read together with 'ule 23 of Order 20 of the same code t1t interest 13 payable on a judgment debt .rom the dat9 Af delivery of the junent until t'.e same shall be satisfied, at the rate sevenS percentum per annuit or tot exceing twelve percentum. 3. The plaintiff is entitled to interest at the commercial rate from the date of filing the suit to the date of delivery of judgnient Likewise, in the circumstances of this case, we find no difficulty in awarding the appellant the claimed commercial rate interest. Furthermore under the provisions of Section 29 of the Civil Procedure Code., 1966, the apeilant is entitled to the, court's interest rate of 7% per aimim from the date of judgment to final settlement. The commercial rate of 31% interest per ri II 0 • annum is, to be paid on the decretal amount from the date of fil.ng the suit till the dat. of judgment. For the reasons stated above, the appeal is allowed. The awarded damages of h. 200,.00.0/-.are enhancEd to Sh' 2,0000O/= inCJ.iisive f axemlary damages. Costs to .the appellant. AT DAB ES ALAAJ4 this 28th day of Pbruary, 2003. D,Z.LUBUVA JUSTICE OF.APPEAL ............... J. A. MROSO • . .. . . S JUSTICE OF APPEAL E. N. MUNUO JUSTICE OF APPEAL ..L:etithat t ~ 15 is • a t rue cpy . of the or iginal . . ._1 ( 1.L.K O WANBA I ) . DEPUTY REGISTRAB