Gabriel Mwale v The Attorney General (2019/HP/0654) [2023] ZMHC 20 (17 November 2023)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL HOLDEN AT LUSAKA (Civil Jurisdiction) REGISTRY 2019/HP/0654 BETWEEN: GABRIEL MWALE AND ,.._-�-- NOV 2023 GISTRY-6 THE ATTORNEY GENERAL DEFENDANT BEFORE HON. JUSTICE ELITA PHIRI MWIKISA For the Plaintiff Mr. R. Zambwe From Messrs Zambwe & Partners For the Defendant: Ms T. Nyoni, State Advocate Attorney General's Chambers JUDGMENT Cases Referred To: l. Levy Hamalala and Justin Hachulu v Attorney General 2007/HP/344 2. Hicks v Faulner [1881 J O. B. D. 167 3. Anti-Corruption Commission v Charles Sambondu SCZ Appeal No. 054/2013 4. Hicks v Faulkner 5. Anti-Corruption 6. Richman Chulu Commission v Monarch (Z) Limited /1882} 8QBD 167 v Charles Sambodu (1981) ZR 33 Jl 7. Attorney General & Others v Phiri Appeal No. 161/2014 (2017) ZNSC 63 8. Atlas Copco Zambia Limited v Lawrence Malambo Appeal No. 033/2018 9. Claude Samuel Graynor v Robert Cowley (1971) Z. R. 50 10. Christopher Lubasi Mundia v Sentor Motors Limited (1982) Z. R. 66 (H. C) 11. Attorney General v Mpundu (1984) Z. R. 6 (S. C) 12. Attorney 13. China Henan International General v Felix Development Chris Kaleya (1982) Z. R. 1 (S. C) Corporation Limited v Victor Chewe Appeal No. SSA/ 2011 14. The Attorney General & Others v Masauso Phiri Selected Judgment No. 28 of 2017 Books Referred To: 1. Clerk and 2. Halsbury's Laws 3. McGregor of England 4th edition on damages, 18th edition, Sweet & Maxwell (2009) Lindsell on Torts 20th edition, Sweet & Maxwell 2010 This matter was commenced by way of writ of summons dated 30th April, 2019. The amended writ of summons was filed into Court on 19th November, 2020, and it was accompanied by an amended statement of claim of even date. It was stated therein that on or about 28th October, 2013, the Plaintiff was apprehended by Police Officers from Chipata Central Police on allegations of having committed the offence of aggravated robbery without any justification and consequently went through the process of a full court trial. J2 The Plaintiff went on to plead that in a judgment delivered by Honourable Justice Madam F. M. Chisenga on 29th August, 2014, under Cause No. HJ/45/2014, the Plaintiff was acquitted due to lack of evidence connecting him to any commission of the offence of aggravated robbery. It was pleaded that the Plaintiff was incarcerated for a period of ten (10) months without any reasonable and probable cause but as a result of the malicious acts of the arresting officers. That prior to the Plaintiff's wrongful arrest and subsequent detention, the arresting officer had issued threats towards him stating that he would destroy the Plaintiff and all of his businesses and property. Further that the arresting officer had on two occasions sent unknown persons to the Plaintiff's place of business to disrupt and disturb operations there. The Plaintiff went further to plead that he will demonstrate, during trial, that he was forced to admit the charges levelled against him. That he was beaten and threatened with death by the arresting officer if he did not admit the said charges. The Plaintiff pleaded that he was subjected to inhumane treatment at the hands of the Police wherein he was physically and mentally tortured prior to his incarceration. It J3 was also pleaded that the Plaintiff has suffered damage as right­ thinking members of the community are now perceiving him to be an aggravated robber and that he is therefore not interacting freely with other persons. Further that his businesses have also suffered from reputational loss as business partners now think he 1s untrustworthy. In addition, that during his incarceration, all his businesses and properties were stolen. It was pleaded that for reasons aforestated, the Plaintiff has suffered loss as a consequence of the Defendant's actions. The Plaintiff's claims are for: (i) Immediate payment by the Defendant to the Plaintiff of the sum of ZMW 2, 815,000.00 being the total sum of costs for stolen and damaged business property as a consequence of the Defendants false imprisonment and malicious prosecution; (ii) Damages for false imprisonment and malicious prosecution; (iii) Aggravated and exemplary damages relating primarily to total loss of business as a consequence of the defendant's actions; J4 (iv) General damages as a consequence of the defendant's actions (v) Interest on all sums due; (vi) Costs; and (vii) Any other relief the Court may deem just. In the defence dated 18th November, 2021, the Defendant denied the claims made by the Plaintiff in the amended statement of claim. It was averred therein that in the month of July, the Anti-Robbery Office in Chipata received a report from one Davis Zimba of Chipata township, Chipata District, that while driving along Chipata-Lundazi road, he was attacked by armed men who were driving a Toyota Corolla and stole cash amounting to K64,000.00. That at the time of the attack, which occurred around 04:00 hours in the the morning, said complainant was being driven by one Muleza Tembo. It was averred that investigations were instituted and on 28th October, 2013, the said Muleza Tembo was picked up by Police for questioning. The Defendant averred that after a series of questions, the said Muleza Tembo admitted that he and two other people, namely, Gabriel Mwale (the Plaintiff herein) and Timothy Lungu staged a robbery subject of this matter. That it was at that point that JS the Plaintiff was picked up after having been identified as one of the persons who had staged the robbery. The Defendant denied the allegations that the Plaintiff was threatened and beaten and averred that during the interrogations, the three accused persons readily admitted of the to the commission crime. It was also averred that the Plaintiff and his co-accused requested to resolve the matter outside Court with the complainant. The Defendant pleaded that at no point were the accused persons subjected to inhumane treatment as they did not offer any resistance to the admission of the alleged crime. The Defendant further denied that the Plaintiff's property was ransacked by unknown persons during the period of his incarceration and that the Plaintiff shall be put to strict proof thereof. It was pleaded that the Plaintiff was not arrested without reasonable cause and that as a consequence is not entitled to the reliefs being sought. th I have taken note of the reply dated 17 December, 2021. JG When the matter came up for trial on 28th February, 2023, PWl, the Plaintiff herein, told the Court that he is a businessman dealing in second hand spare parts sales and car breaking. PW 1 also stated that he repairs vehicles as well. PWl went on to narrate that on 28th October, 2013, around 09:00 hours, three people went to his place of work and he identified one of them as Ne ba Kalifungwa, a Police Officer. PW 1 testified that the three people informed him that they were police officers who had gone to pick him up to take him to the police station. That the officers refused PW 1 to find someone to take care of his workshop or to lock up the premises while he was away. Further that the officers instead placed him in the boot of the vehicle they went with and drove him to the police station. PW 1 gave evidence that at the Police Station, he was asked to remove his shoes, clothes and socks. That when PWl asked what offence he had committed, Neba Kalifungwa informed him that he had committed the offence of aggravated robbery 5 months back whilst acting together with one Muleza Tembo and one Timothy Lungu. PW 1 testified that he only came to know Muleza Tembo at Court and at J7 the Police station but did not know him before then. PWl testified further that he denied the allegations but that the police officers hit him for about an hour using iron bars, short batons and fan belts. PW 1 testified that because they did not stop hitting him and he begun bleeding, he decided to admit the charge so they could stop. PWl testified that he was detained for 10 months and appeared in court in the 10 month but was subsequently acquitted on 29 th th August, 2014. PWl testified further that the arresting officer, Neba Kalifungwa and himself had personal differences before he was arrested. He said that the said Neba Kalifungwa had threatened to destroy PW l's businesses. PW 1 stated that he believed that the personal issues he had with the arresting officer, Neba Kalifungwa, are what led to his arrest. PW 1 went on to give evidence that when he was detained, the property he left got damaged and some of it was stolen as shown at pages 24 and 25 of the Plaintiff's bundle of documents. PWl prayed that he be compensated for the loss suffered. Under cross-examination, PWl told the Court that he did not get a medical report for the injuries he sustained was not because he JS allowed to go to the hospital by the Police. that he PW 1 also testified did not find his property when he was released from remand prison but that he did not report the matter to the police when he was released from prison. PW 1 further conceded that he did not exhibit any receipts because the box where he kept receipts got lost while he . . was 1n pnson. In re-examination, PW 1 testified that he did not report the stolen goods to the police as the police officers were the same people that stopped him from closing his shop and arrested him. He testified further that he therefore did not see it fit to go back to the same police officers to report the stolen items. The defence did not call any witnesses and proceeded by way of written submissions filed into Court on 31st March, 2023. It was submitted therein that in an action for malicious prosecution, the onus is on the Plaintiff to prove the cause of action and that in doing so, the Plaintiff must prove the elements of malicious prosecution. Counsel referred the Court to the case of Levy Hamalala and Justin Hachulu v Attorney General 2007 /HP/ 3441, as follows: J9 that need to be proved in order to First, there must by the defendant. Thus the law must be set in on a criminal charge. Second, the should end in favour of the plaintiff. Third, the should have been instituted "There are four requirements sustain an action for malicious prosecution. be prosecution motion against a plaintiff prosecution prosecution and probable cause. Fourth, instituted the prosecution maliciously." should have been without reasonable Counsel contended that the Plaintiff in this case has not met the requirements stated in the said authority for him to sustain a claim for malicious prosecution. It was submitted that according to the Defendant's defence, the officers received a report of aggravated robbery which they thoroughly investigated before proceeding to arrest the Plaintiff. It was submitted that the Defendant was in order to investigate a report of aggravated robbery and charge the Plaintiff accordingly. Counsel for the Defendant contended that the Plaintiff herein has failed to prove his case as there is no evidence before this Court to support his claims. Counsel also cited the case of Hicks v Faulner [1881] Q. B. D. 167 in which reasonable and probable cause were defined. The case of Ginski v Mciver [1962] 1 ALL E. R. 696 was also cited as follows: "Malice and lack of reasonable or probable cause must be separately proved. Albeit the absence of reasonable and probable cause, maybe evidence of malice." JlO Counsel submitted that there was reasonable and probable cause to prosecute the Plaintiff herein because there was enough evidence against the Plaintiff to prosecute. Counsel concluded by stating that the Plaintiff herein has no evidence to support his claims and that there was therefore no malicious prosecution and false imprisonment. with Counsel prayed that the matter be dismissed costs to the Defendant. I have taken note of the submissions made by Counsel from both sides. I have carefully considered the pleadings, the evidence as well as the written submissions on record. In this case, the Plaintiff is claiming, inter alia, damages for malicious prosecution and false imprisonment. In relation to malicious prosecution, in order for one to succeed in an action, five elements must be proved. In the case of Anti-Corruption Commission v Charles Sambondu SCZ Appeal No. 054/2013 3, the Supreme Court held that: "There are primarily five essential should establish in order to prove malicious prosecution. These have been enumerated by the learned authors of Bullen & Leake & Jacob's Precedents of Pleadings, Vol. 1, 16th Edition, who have indicated in paragraph 2-12, that to establish a claim for elements which a plaintiff Jll damages for malicious prosecution, and establish that: the claimant must plead (a) He was prosecuted by the defendant, i.e. that proceedings on a criminal charge were instituted defendant against him; or continued by the (b) The proceedings were terminated in the claimant's favour; (c) The proceedings probable cause; were instituted without reasonable and (d) The defendant instituted the proceedings maliciously; and (e) The claimant suffered loss and damage as a result." In addition, the learned authors of Clerk and Lindsell on Torts 20th edition, Sweet & Maxwell 20101, at page 1070 state that the four essential elements that must be proved in a case of malicious prosecution are that: "The claimant must show first that he was prosecuted by the defendant that is to say, that the law was set in motion against him by the defendant on a criminal charge, secondly that the prosecution was determined in his that it was without reasonable and favour and thirdly, probable cause and fourthly that it was malicious." The learned authors go on to state that: "The onus of proving every one of these is on the claimant." The Learned authors of Halsbury's Laws of England 4th edition2 at paragraph 1340 state that: "A malicious prosecution is court by wrongfully setting the law in the motion of a the an abuse of the process of J12 criminal charge. To be actionable as a tort the process without reasonable and probable cause, must have been must have been instituted and or carried on maliciously must have terminated in the plaintiffs favour. The plaintiff must also prove damage." The plaintiff herein must therefore prove that he was prosecuted, that the prosecution was terminated in his favour, that the Defendant acted without reasonable and probable cause, that the Defendant did so with malice and lastly that the Plaintiff suffered loss. In casu, it is not in dispute that the Plaintiff herein was prosecuted and that the said prosecution was terminated in his favour as shown by the notification of acquittal dated 29th August, 2014. It follows therefore, that the Plaintiff has proved one of the ingredients of the offence of malicious prosecution namely, that he was prosecuted by the Defendant and then acquitted of the charge levelled against him. What the Court therefore needs to determine is whether or not the prosecution was without reasonable and probable cause and with malice. In the case of Hicks v Faulkner [1882] 8QBD 167 4, Hawkins J states that: "I should de.fine honest belief in the guilt of the accused based upon a full reasonable and probable cause to be, an J13 founded upon reasonable grounds of the conviction, existence of a state of circumstances, them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." which assuming In the case of Anti-Corruption Commission v Charles Sambodu5 cited above, the Supreme Court stated that: "Reasonable and probable cause for a prosecution has been said to be an honest belief in the guilt of the accused based upon a full conviction grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably any ordinary prudent and cautious position of the accuser, to the cone lusion that the person charged was probably guilty of the crime imputed. lead man, placed in the founded upon reasonable It is also important to note that the presence of reasonable and probable cause for a prosecution does upon actual existence, in good faith in the existence a prosecution." of such/acts as would justify but upon a reasonable belief held not depend The question is whether or not the Defendant had sufficient ground or cause for thinking that the Plaintiff was probably guilty. I have noted that the Defendant herein did not call any witnesses to give evidence during the trial of this matter. In paragraph 3 of its defence, however, the Defendant pleaded that the anti-robbery office in Chipata received a report of aggravated robbery in which one Davis Zimba, the complainant, reported armed that he was attacked by J14 men. In paragraphs 6 and 7 of the defence, the Defendant averred that investigations revealed that the complainant's driver admitted to having worked with the Plaintiff and one other person to stage the robbery. It was averred in paragraph 7 of the defence as follows: "Further to paragraph 5 of the Amended statement of claim, after a series of questions put to the driver he admitted having worked with two others namely; Gabriel Mwale and Timothy Lungu. Then a team consisting of Inspector Kanini Himpali, Sgt Neba Kalifungwa, Sgt Hanankange Hendrix, Sgt Kapolyo Jonathan and Sgt Mutantobowa Christopher booked out to Kapata DK area led by Muleza Tembo where the Plaintiff Gabriel Mwale was picked after having been identified as one of the persons who had asked to stage the robbery and steal Davis Zimba's money." In the reply filed on 17th December, 2021, the Plaintiff, pleaded, in paragraph 7 that at the time of his arrest, the said, Muleza Tembo could not have identified him because he was not among the three officers that went to apprehend the Plaintiff. In paragraph 11 of the reply, the Plaintiff denied having any knowledge of the said JlS aggravated robbery and further averred that the said Muleza Tembo categorically denied knowing the Plaintiff. I am of the considered view that the Defendant herein took a very casual approach in this matter as is evident from its fashion of cross­ examining the Plaintiff witness as well as its refusal to call any witnesses. I find that there is no evidence on record to justify the Plaintiff's prosecution. I note that the Defendant stated that the said Muleza Tembo identified the Plaintiff before he was arrested however, the Plaintiff denied this by stating that the said Muleza Tembo was not in the presence of the team that went to arrest him and that it was therefore not possible for him (Muleza Tembo) to identify the Plaintiff. In addition, during examination in chief, the Plaintiff herein maintained that three people went to his place of work and that one Neba Kalifungwa informed him that the three were police who officers went to pick him up from the police station. This was never rebutted or challenged by the Defendant in cross examination. I therefore find that the Police did not go to arrest the Plaintiff in the presence of the J16 said Muleza Tembo and I agree with the Plaintiff that Muleza Tembo could not have identified the Plaintiff as a result. The Plaintiff also testified that he only got to know the said Muleza Tembo at Court and at the Police Station and did not know him before. This evidence was also not rebutted by the Defendant during cross-examination. In the written submissions, Counsel for the that there was Defendant merely stated reasonable and probable cause to prosecute in the matter at hand because there was enough evidence against the Plaintiff to prosecute. In light of the above, I am of the considered view that the Plaintiff herein has proved that the proceedings against him were instituted without reasonable and probable cause as there is no evidence on record that justifies the Plaintiffs prosecution. The question that remains to be answered is whether or not the proceedings were instituted maliciously. The Plaintiff herein has consistently pleaded that even before he was arrested, a Police Officer, by the name of Neba Kalifungwa, kept threatening him as a result of personal issues between them. The Plaintiff not has however produced any evidence to substantiate those allegations. J17 The learned authors of Clerk and Lindsell edition, th on Torts 20 Sweet & Maxwell 2010, at page 1070 state that: "Evi.dence of malice of whatever degree cannot be invoked to disperse with or diminish the need to establish separately each of the first three elements of the tort." In casu, the Plaintiff has proved three of the four elements required to prove malicious prosecution. I find that the Plaintiff has however failed to prove the fourth element which is that the Defendant herein maliciously instituted these proceedings against the Plaintiff. It is for the said reason that the claim for damages for malicious prosecution fails. In relation to false imprisonment, the case of Richman Chulu v Monarch (Z) Limited (1981) ZR 33 7, is instructive. The Court held, in that case, that: "False imprisonment only arises where there is evi.dence that the arrest which led to the detention was unlawful, since there was no reasonable and probable cause." In the case of Attorney General & Others v Phiri, Appeal No. 161/2014 (2017) ZNSC 638, the Court of Appeal held as follows: "False imprisonment intentionally or movement from a particular for a time however short. There is no false imprisonment and either freedom consists in unlawfully place. The restraint another person's or recklessly restraining must be total if a J18 arrest is justifiable or if there is reasonable and probable person's cause of restraint." I have already found that the Plaintiff herein was prosecuted without any reasonable and probable cause. The Defendant herein had the duty to justify the Plaintiff's imprisonment as stated by the Court of Appeal in the case of Atlas Copco Zambia Limited v Lawrence Malambo Appeal No. 033/2018 9, at JlO: "Our understanding and there is reasonable person has committed imprisonment. is that if a person is detained and probable cause for believing a crime, there can be no false by the Police that the Black's Law Dictionary defines reasonable and probable cause as: "such grounds as justify crime and giving him in custody thereon. founded upon circumstances reasonable man in belief that charge is true." any one in suspecting sufficiently strong It is a suspicion to warrant another of a The Court of Appeal went on to state as follows at Jl 1 that: "The only thing the defendant imprisonment The onus temporarily was justified." shifts to the Defendant the to justify has to prove is that the imprisonment and pursuant to the authorities above, I find that the Defendant in this case did not discharge its onus of justifying the imprisonment. I form the view that the Defendant should have substantiated its pleadings by bringing evidence that proved that the said Muleza Tembo connected the Plaintiff to the aggravated robbery J19 for it to justify the imprisonment and prosecution. As shown above, the Defendant did not rebut the evidence by the Plaintiff that it was impossible for the said Muleza Tembo to have identified the Plaintiff as he was not there when the Plaintiff was arrested. This evidence was key in justifying the Plaintiffs imprisonment. The Defendant however neither thoroughly cross-examined the Plaintiff nor witness did it bring any witnesses to substantiate its case and discharge its onus in the circumstances. The Defendant therefore failed to prove and substantiate the contents of its pleadings in this case. In light of the authorities cited above, I find that the Plaintiff herein has proved that he was falsely imprisoned and is thus entitled to damages thereof. The Plaintiff herein has also claimed for immediate payment of K2,815,000.00 by the Defendant to the Plaintiff being the total sum of costs for stolen and damaged business property as a consequence of the Defendant's false imprisonment and malicious prosecution. In his bundle of documents, the Plaintiff produced for a claim damages for malicious prosecution, loss of business and stolen property as well as an inventory of the items that were stolen at the J20 time of his arrest. During cross-examination, the Plaintiff conceded that when he was released from custody, he did not report to the Police that he found his items stolen. The Plaintiff also testified that he did not produce any receipts as the box where he kept them got lost while in custody. The Supreme Court in the case of Attorney General v Mpundu ( 1984) Z. R. 6 (S. C)12 stated as follows: act, he must warn the defendant damage of a has suffered and immediate consequence of a that in the pleadings "It is thus trite law that, if a plaintiff kind which is not necessary wrongful the compensation Consequently, a mere "damages" of loss which is not a necessary and of which the defendant is entitled words, usual, ordinary or general damages may be generally pleaded; must be specifically necessary, claimed would extend to this damage .... claims statement that the plaintiff kind of a particular act of the wrongful damages may not, as these of claim (or where unusual or special pleaded in is not sufficient to in a counter-claim) and must be proved." to a fair warning. let in evidence consequence a statement whereas, In other I am of the considered view that the Plaintiff herein has not proved that his items were stolen. He conceded that he never reported the stolen items to the Police after his release neither has he produced any other evidence It is to prove that the items were indeed stolen. therefore difficult, in the circumstances, to uphold this claim. The claim thus fails for the reasons stated. J21 The Plaintiff is also claiming general, aggravated and exemplary • damages as a consequence of the Defendant's actions. In the Supreme Court case of The Attorney General v Felix Chris Kaleya ( 1982) Z. R. 1 (S. C)13 as follows: for wrongful detention the factors to be sanctity of personal liberty, or absence of the suffering of anxiety or indignity, of detention, and the reasonableness include duration, "In assessing damages considered presence manner and circumstances of the explanation The learned authors of McGregor for the detention." th on damages, edition, Sweet & Maxwell (2009)3 had this to say on damages in relation to false imprisonment at page 1571 paragraph 37-011: loss but a The principal it is not a pecuniary are few: generally, and the like, and is left much to the jury's or "The details of how damages are worked out in false imprisonment loss of dignity judge's discretion. to be the injury to liberty, primarily feelings, humiliation, to reputation. are usually It is clear from the above authority from a non-pecuniary i.e. the indignity, attendant be included and the injury to and disgrace heads of damage would appear i.e. the loss of time considered loss of social status and injury awarded in these cases .... " mental suffering, herein is entitled that the Plaintiff in the general viewpoint, This will with any damages which to general damages as it goes without saying that he suffered loss of liberty and time for the period he was in custody. I further find that the nature of the offence the Plaintiff was charged with resulted in J22 the Plaintiff suffering indignity, mental suffering, and disgrace humiliation, loss of social status as well as possible injury to reputation especially that he was a businessman in the community. In relation to aggravated damages relating to false imprisonment, the learned authors of McGregor on damages, 18 th edition, Sweet & Maxwell (2009) state at page 1575, paragraph 37-017: "The manner in which the false imprisonment lead to aggravation the damages. The authorities principle may is effected of the damage, and hence of in particular stated by Lawrence L. J. in Walter v Alltools the general that: or mitigation illustrate "any evidence which tends to aggravate damage to a man's reputation his imprisonment when damages are assessed. merely affect a man's liberty; The damage continues avowal that the imprisonment must be admissible was false." it also which flows naturally from A false imprisonment up to the moment does not until it is caused to cease by an the or mitigate affects his reputation. that an unsuccessful should not lead to an aggravation the defendant However, it is submitted defendant unless it is shown that Otherwise, a bona fide dilemma: if he fails to plead the truth of against him, while if he the charge he risks does plead the truth of the charge he risks an award of aggravated The Plaintiff damages against him." losing the action as stated earlier, plea by the of the damages has not proved to the Court made the charge mala fide. herein, that there was malice in his prosecution. The Plaintiff has further J23 In relation to exemplary damages, the Supreme Court in the case of .... China Henan International Development Corporation Limited v Victor Chewe Appeal No. SSA/201114 stated that: "We now come to exemplary damages. The learned authors of McGregor on Damages, 18th Edition, Sweet and Maxwell, paragraph 11-011 stated that- " ... it can confidently be said that today exemplary awards are possible across the whole range of tort. Provided always that there is unacceptable defendant, behaviour that displays features which merit punishment by way of malice, fraud, cruelty, insolence and the like, there is no tort where the writ of exemplary damages will not run." behaviour on the part of the Further, the Supreme Court referred to its decision, in the case of Times Newspapers Zambia Limited v Kapwepwe ( 1973) ZR 387 where it held that- "In Zambia exemplary damages may be awarded in any case where the defendant has acted in contumelious the plaintiff's rights." disregard of Black's law Dictionary, 9th Edition defines the word 'contumelious' as "insolent, abusive, spiteful or humiliating." A perusal of the statement of claim shows that the Plaintiff herein claimed damages without setting out the heads of such damages. Be that as it may, I hold the view that the circumstances of this case, as shown, warrant the award of damages to include an exemplary J25 • element in respect of the Police' conduct which resulted in the Plaintiff's false imprisonment. The Plaintiff herein has therefore shown that he was detained for about 10 months without any justifiable cause and that it goes without saying that he suffered humiliation, damage to his reputation as well as to his dignity as a result of the charge and arrest. In the case of The Attorney General & Others v Masauso Phiri 16, the Supreme Court held as Selected Judgment No. 28 of 2017 follows: "But in held that: the Kawimbe, Kakoma and Sam Amos Mumba cases we "The award of general must where these factors the circumstances person's dignity I accordingly damages in cases of false imprisonment are present, of the arrest and detention, the affront to the always take into account and the damage to his reputation." award the Plaintiff general damages with an exemplary element, to be taken into account, in the final award of damages for false imprisonment. I also award aggravated damages as the nature of the offence the Plaintiff was charged with has potentially lowered the Plaintiff's dignity and his reputation in society. I further award interest on all sums found due. J26 , I accordingly refer the matter to the Deputy Registrar for assessment of damages. I award costs to the Plaintiff to be taxed in default of agreement. Leave to appeal is granted. Dated at Lusaka on ...... l. J. � ........ 1\1\ day of ............................. , 2023. ELITA P. MWIKISA HIGH COURT JUDGE J27