Harrison v Attorney General (SCZ Judgment 36 of 1993) [1993] ZMSC 81 (2 December 1993)

JUDGEMENT No.15 OF 1993 SCZ APPEAL No.36 OF 1993 * IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: PAUL ROLAND HARRISON APPELLANT ANO THE ATTORNEY-GENERAL RESPONDENT Coram: Sakala, Chirwa and Muzyamba, J. J. J. S. 26th October and 2nd December, 1993 For the Appellant : N. Kawanambulu, Nosiku Kawanambulu and Co. For the Respondent : A. G. Kinariwala, Principal State Advocate JUDGMENT Muzyamba, J. S. delivered the judgment of the court Cases referred to: 1. PATON V ATTORNEY-GENERAL 1968 Z. R. 185 2. TIMES NEWSPAPERS ZAMBIA LIMITED V LEE CHISULO 1984 Z. R. 83 3. TIMES NEWSPAPERS ZAMBIA LIMITED Vs S. KAPWEPWE 1973 Z. R. 292 4. ELIYA MWANZA Vs. ZAMBIA' PUBLISHING COMPANY LIMITED 1979 Z. R. 76 5. ATTORNEY-GENERAL Vs. D. G. MPUNDU 1984 Z. R. 6 6. KAPWEPWE Vs. ZAMBIA PUBLISHING CO. LTD 1978 Z. R. 15 7. THE ATTORNEY-GENERAL Vs MARTHA MWIINDE SCZ JUDGMENT No.5 OF 1987 (1986) This is an appeal against the award by the. Deputy Registrar to the appellant of K150.000 general damages and K60.000 exemplary damages for false imprisonment. There is also a cross appeal against the award of exemplary damages. The facts of mis case were that tn~ appellant has lived in Zambia since 1951 ana is an established resident wim business concerns in Lusaka. On 21st May, 1990 some Immigration Officials visited his office ana left a message tiidt ne was wauled at ne 'Immigration Headquarters. He went mere at 15.00 nours on the same day and saw Mr.^ulumba who served him with a deportation order signed by the Minisur of Honk affairs. He was later detained at Lusaka Central Prison. X \ 2/... : : 113 While in prison ha filed a habeas corpus application, which was to be heard on 13th June, 1990, but, before then, he was, on 11th June, 1990 at 18.00 hours, released from prison. No reasons were given for his release. On 15th May, 1391 ne commenced an Qcuoh against the Atcorney-G&ierai for carnages for unlawful deportation, false imprisonment and wrongful blocking of nis bank accounts. The state did not appear to the writ of summons ano by Revs of the court tne appellant, on 26th June, 1991 entered judgment ut default of app^ar^ce for damages to be asses-."-L Ren a notice of assessment of damages returnable on 17 tn September, 1991 was filed on July, 1931. Before tne return day, Ue appellant, on 23rd July, 1991 srrveu upon Un respondent a sUiemunt of claim claiming, inter alia, exemplary Manages. Mr. Xawa.>ambuiu, nas filed three grounds of appeal. 1. TiW Lie award of general asW exemplary damages was, in kw, erroneous in that no reason or reasons were given m tn-.? judgment to show why and how the Deputy Registrar arrived at toe figures ie awarded. 2. Tnat the aware of general damages was grossly inadequate having regard to ma circumstances of tne appellant’s arrest, dvcmioa, lae anxiety suffered and above all the inflation in Zambia today. 3. fikic tne Deputy Registrar’s of exemplary damag<s was also inadequate end wrong in principle. On the first -no se cond grounds, m so far as Usy bora relate to general damages, -'h'. Kawanambuiu submui-xi t;>et cne Deputy Registrar gave no reasons for awarding ine appellant KI50,000 gmeral damages. Lta taking lino account all Ue circumsu -c^s of uu deteatio^ thsi figure of K’i50»000 was an erroneous estimate of wiut lhc appellant ought, to tuvo bee> awarcieci. iikn, considering t«u; aware of K5,000 in 1958 in tna Patou Case (1) whose facts *re almost on ail fours wivi ihe present, cnso, and taking into account th" racing inflation devaluation of the Kwocoa since than, an awaro of KR million in the circumstances of this case would not nave been uoreasonable. 3/... 3 : In response, Mr. Ki^ariwaia submitted that the fact that the Deputy Registrar did not give reasons for arriving at £150,000 did not mean that he did not take into account all the relevant circumstances surrounding tne detention. While conceding that inflation snould be taken into account when assessing damages, he submitted that the court should also bear in mind that the value of the kwacha was now unrealistic. That it was artificial. That even if the court was to find that the circumstances of this c«se were more serious than those found in th-? Paton Case (1) the award of K150,000 was still adequate. in the Chi su lo Case (2) at page 84 tn is court said:- "An appellate court will not interfere with an assessment of damages unless the lower court had misapprehended tit? facts or mi sappliea the law or thwere the damages are so nigh or so low as to be an entirely erroneous estimate of the damages to which toe plaintiff is properly entitled". Our attention has been drawn to the similar!Ity in facts of this case and those of the Paton case (1) in which damages of K5,000 were awarded. Paton, who was then ordinarily resident in Zambia was on 4th November, 1956 served with a deportation order to leave Zambia via Livingstone. He left the following day at 3 p.m. for Salisbury now Harare. Then, following cue court of appeal decision on 10th January, 1967 in the RUXTON case, whoso facts we do not intend to recite, his lawyer contacted Paton and told him tnat he was not a prohibited immigrant a.id that no was free to return to Zambia if he wished. On 9ch March, 1957 at about 09.30 hours ne arrived in Lusaka. He was however told by an Immigration Officer that he was still a prohibited Immigrant and kispite of protests he was driven to Chirundu and given a notice to cross the bridge into the then Southern Rhodesia, which ne did. At the trial of his action the State conceded that Paton had acquired a right not to be deported end the only question that remained to be decided was whether or not he was falsely imprisoned in the course of Uis deportation and the court found that ne had been falsely imprisoned during the period between the service of the notice and the time when the temporary permit was issued and also for the period he was removed from Lusaka Airport and driven to Chirundu, a period of no more chan a day. In the present case the appellant was detained for twenty- one days and the conditions of his detention have been neatly summed up by Mr. Kawanambulu at page 4 of the appellant's heads of argument as follows:- : 4 : "The facts in this cast* related to being arrested and detained without affording him an opportunity to see his wife, living in an over crowded place and sleeping near a toilet with the stench coming from the toilet, sleeping on the floor with light on throughout the Mght, depression and gout resulting from stress". There can be no doubt that the circumstances of this case are more serious than those found in the Paton case and that had Ue learned Deputy Registrar taken into acount all the various and singular ugly features of this case he would have awarded the appellant a higher figure than he did. We would therefore agree with Mr. Kawanambulu that the ^ward of KI50,000 was an erroneous estimate and inadequate We set it aside. We have considered all trie circumstances surrounding the detention of the appellant and all the cases cited before us and we bear in mind that damages cannot be assessed on a per dkm basis. We also note, from the evidence of David ShiiTwale Diagoma of Central Statistical Office, that, due to inflation, what, could have been purchased for K5,000 in 1968, when the Paton case was decided, would in 1991 cost K467,13^-00. Having regard to the High inflation that has taken place since the earlier awards this must be reflected in later awards. Although awards of damages must obviously be increased to reflect the severe inflation, it would be quite unrealistic simply to multiply former awards by the figures produced by the Statistical Office. We must, in the same way as tiiosa who award salary increases, attempt to arrive at figures that are both reasonable and kir to all parties in the circumstances prevailing to-day. Wq have already indicated that damages for false imprisonment are not calculated on c daily basis, but obviously imprisonment for twenty-one days is much more serious than for one day <nd this must be reflected in the award. In this case at the date of trial the appropriate award, taking into account inflation, should h.-ye been WOO,000 and this is the figure we award the appellant. On the third and last ground of appeal that the award of exemplary damages was inadequate and wrong in principle, Hr. Kawanambulu submitted 5/... : 5 : that exemplary damages were punitive and deterant in nature and therefore much higher than general damages and should in any event be twice the amount of general damages. That the award of K60,000 was therefore totally inadequate and wrong in principle. He further submitted, in relation to the cross appeal, that exemplary damages, not having been pleaded in the writ of summons and facts relied upon set out, should not have been awarded, at in Zambia, unlike in England, there is no specific rule of law which requires that exemplary damages, like special damages, be specifically pleaded to be awardable. Tnat such damages were an extension of general damages and should be awarded in any case where it is proved that the defendant acted in contumelious disregard of the plaintiff's rights. He cited the case of Kapwepwe (3) in support, wherein this court said, inter alia:- "In Zambia exemplary damages may be awarded in any case where the defendant has acted in contumelious disregard of the plaintiff's rights". He further submitted that the case of Eliya Kwanza (4) which came after the Kapwepwe case and which adopted the English practice that exemplary damages are not awardable unless specifically pleaded was wrongly decided and should be reviewed. In that case at page 80, Gardner, J. S. said: "In this case a Claim for exemplary damages was not included in the statement of claim and therefore such damages cannot be considered". Mr. Kawanambulu went further and said that in any cas^ these damages were pleaded in the statement of claim served upon the respondent before the assessment. Therefore that the Deputy Registrar was in order to award them. In reply and arguing his cross appeal, Mr. Kinariwala submitted that it was the practice in Zambia that to be awarded, exemplary damages should be specifically pleaded and the facts relied upon set out. That apart from the case of Eliya Mwanza (4) cited by Mr. Kawanambulu, this court, in the case of Mpundu (5), restated the position that exemplary damages are awarded only where they have been specifically pleaded. He further submitted that the statement of claim in this case was irrelevant and irregular having been served after judgment was entered. We would readily agree with Mr. Kawanambulu that the High Court Rules, Cap. 50 do not provide that exemplary damages should be pleaded in a writ. But then Section 10 of the High Court Act provides that where our own rules are silent on a matter of procedure then the English rules shall apply and Order 18 rule 8 subruie 6 R. S. C. Volume 1, (1988 Edition) provides that a claim for exemplary damages must be specifically pleaded together with facts relied upon for such damages to be awardable and it is not uncommon in Zambia for a statement of claim to accompany a writ. The same order 18 provides that the object of the rule is to give the defendant fair warning of what is going to be claimed with the relevant facts to be relied upon set out and thus to prevent a surprise at the trial. And this is precisely what this court said in Mpundu case (4). It was held there, at page 12 that usual, ordinary or general damages may be generally pleaded, whereas unusual or special damages may not, as these must be specifically pleaded in a statement of claim or where necessary in a counter claim and must be proved, thereby showing the defendant the case he has to meet. That in fact is the whole purpose of pleadings i.e. to narrow issues and give the defendant sufficient warning or notice of the case he will meet at the trial and not pull out surprises. We do not therefore agree with Mr. Kawanambulu that the case of Eliya Mwanza (4) was wrongly decided. In our view, it sets out good law and practice that exemplary damages, to be awardable, must be specifically pleaded. We would hasten here to refer to the decision of this court in the other Kapwepwe case (6) which was followed in the case of Mwiinde (7) that where there is any aggravating conduct on the part of a defendant then the court should take into account that conduct in awarding compensatory damages and that only if such compensatory damages are insufficient to punish a particular defendant should a further sum be awarded as punitive or exemplary damages. ■ 7/... : 7 : Witn regard to submissions on the statement of claim that was served in this matter we would comment that the writ claims damages without setting out the heads of such damages and the form of endorsement was entirely proper. In the ordinary way, a statement of claim would follow in which general, special and if necessary, exemplary damages could be set out. In this case, the fact that judgment was signed before a statement of claim became necessary does not affect the appellant's right to claim all damages which flow from the tortious act. It is, of course, usual for such details to be set out in an affidavit and at this stage, the statement of claim was inappropriate. However, in as far as the statementof claim gave notice to the defendant of the details which were going to be put before the Deputy Registrar together with evidence on oath the procedure adopted cannot be said to be so improper as to defeat the plaintiff’s claim for exemplary damages and we would therefore agree with Mr. Kawanambulu that exemplary damages could be awarded in this case. But having regard to our comments in the Kapwepwe (6) and Mwiinde (7) cases that the aggravated element should be taken into account in the final award of compensatory damages, this is the course we have taken in this case. For the foregoing reasons we would dismiss the cross appeal with costs in this court and in the court below to the appellant to be taxed in default of agreement. E. L. SAKALA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE