IN THE HIGH COURT FOR ZAMBIA 2019/HP/0654

AT THE PRINCIPAL REGISTRY

HOLDEN AT LUSAKA
(Civil Jurisdiction)
,.._-�--
BETWEEN: NOV 2023
GISTRY-6
GABRIEL MWALE

AND

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 [1881J O.B.D. 167
3. Anti-Corruption Commission v Charles Sambondu SCZ Appeal
No. 054/2013
4. Hicks v Faulkner /1882} 8QBD 167
5. Anti-Corruption Commission v Charles Sambodu
6. Richman Chulu v Monarch (Z) Limited (1981) ZR 33

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 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 General v Felix Chris Kaleya (1982) Z.R. 1 (S.C)
13. China Henan International Development 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 Lindsell on Torts 20th edition, Sweet & Maxwell 2010
2. Halsbury's Laws of England 4th edition
3. McGregor on damages, 18th edition, Sweet & Maxwell (2009)

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.

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The Plaintiff went on to plead that in a judgment delivered by

Honourable Justice Madam F.M. Chisenga on 29 th 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

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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;

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 (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 morning, the

said complainant was being driven by one Muleza Tembo.

It was averred that investigations were instituted and on 28 th

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 to the commission of the

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.

I have taken note of the reply dated 17th December, 2021.

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When the matter came up for trial on 28 th February, 2023, PWl, the

Plaintiff herein, told the Court that he is a businessman dealing in

second hand spare parts sales and car breaking. PW1 also stated

that he repairs vehicles as well.

PWl went on to narrate that on 28 th October, 2013, around 09:00

hours, three people went to his place of work and he identified one of

them as Neba Kalifungwa, a Police Officer. PW1 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.

PW1 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. PW1

testified that he only came to know Muleza Tembo at Court and at

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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.

PW1 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 10th month but was subsequently acquitted on 29 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 PWl's businesses. PW1 stated that he believed that the

personal issues he had with the arresting officer, Neba Kalifungwa,

are what led to his arrest.

PW1 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 because he was not

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allowed to go to the hospital by the Police. PW 1 also testified that he

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, PW1 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/ 344 1, as follows:

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"There are four requirements that need to be proved in order to
sustain an action for malicious prosecution. First, there must
be prosecution by the defendant. Thus the law must be set in
motion against a plaintiff on a criminal charge. Second, the
prosecution should end in favour of the plaintiff. Third, the
prosecution should have been instituted without reasonable
and probable cause. Fourth, the prosecution should have been
instituted maliciously."

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. 1672

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."

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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. Counsel prayed that the matter be dismissed with

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 elements which a plaintiff

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

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damages for malicious prosecution, the claimant must plead
and establish that:

(a) He was prosecuted by the defendant, i.e. that proceedings

on a criminal charge were instituted or continued by the
defendant against him;
(b) The proceedings were terminated in the claimant's
favour;
(c) The proceedings were instituted without reasonable and
probable cause;
(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 2010 1, 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
favour and thirdly, that it was without reasonable and
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 an abuse of the process of the

court by wrongfully setting the law in the motion of a

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 criminal charge. To be actionable as a tort the process
must have been without reasonable and probable cause,
must have been instituted or carried on maliciously and
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 29 th 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 1674, Hawkins J states

that:

"I should de.fine reasonable and probable cause to be, an

honest belief in the guilt of the accused based upon a full

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 conviction, founded upon reasonable grounds of the
existence of a state of circumstances, which assuming
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."

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 founded upon reasonable
grounds, of the existence of a state of circumstances,
which assuming them to be true, would reasonably lead
any ordinary prudent and cautious man, placed in the
position of the accuser, to the cone lusion that the person
charged was probably guilty of the crime imputed.

It is also important to note that the presence of reasonable

and probable cause for a prosecution does not depend
upon actual existence, but upon a reasonable belief held
in good faith in the existence of such/acts as would justify
a prosecution."

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 that he was attacked by armed

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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 ofthe persons who had asked to stage the robbery and steal Davis

Zimba's money."

In the reply filed on 17 th 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

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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 officers who

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

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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

Defendant merely stated that there was 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 has however not

produced any evidence to substantiate those allegations.

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The learned authors of Clerk and Lindsell on Torts 20th edition,

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 337, 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 consists in unlawfully and either

intentionally or recklessly restraining another person's freedom
or movement from a particular place. The restraint must be total
for a time however short. There is no false imprisonment if a

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person's arrest is justifiable or if there is reasonable and probable
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. 033/20189, at JlO:

"Our understanding is that if a person is detained by the Police

and there is reasonable and probable cause for believing that the
person has committed a crime, there can be no false
imprisonment.
Black's Law Dictionary defines reasonable and probable cause as:
"such grounds as justify any one in suspecting another of a
crime and giving him in custody thereon. It is a suspicion
founded upon circumstances sufficiently strong to warrant
reasonable man in belief that charge is true."
The Court of Appeal went on to state as follows at Jl 1 that:

"The only thing the defendant has to prove is that the

imprisonment was justified."
The onus temporarily shifts to the Defendant to justify 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

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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 witness nor

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 a claim for

damages for malicious prosecution, loss of business and stolen

property as well as an inventory of the items that were stolen at the

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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)1 2 stated as follows:

"It is thus trite law that, if a plaintiff has suffered damage of a

kind which is not necessary and immediate consequence of a
wrongful act, he must warn the defendant in the pleadings that
the compensation claimed would extend to this damage....
Consequently, a mere statement that the plaintiff claims
"damages" is not sufficient to let in evidence of a particular kind
of loss which is not a necessary consequence of the wrongful act
and of which the defendant is entitled to a fair warning. In other
words, 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."
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 to prove that the items were indeed stolen. It is

therefore difficult, in the circumstances, to uphold this claim. The

claim thus fails for the reasons stated.

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 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)1 3 as follows:

"In assessing damages for wrongful detention the factors to be

considered include duration, sanctity of personal liberty,
presence or absence of the suffering of anxiety or indignity,
manner and circumstances of detention, and the reasonableness
of the explanation for the detention."
The learned authors of McGregor on damages, 18th edition, Sweet

& Maxwell (2009)3 had this to say on damages in relation to false

imprisonment at page 1571 paragraph 37-011:

"The details of how damages are worked out in false

imprisonment are few: generally, it is not a pecuniary loss but a
loss of dignity and the like, and is left much to the jury's or
judge's discretion. The principal heads of damage would appear
to be the injury to liberty, i.e. the loss of time considered
primarily from a non-pecuniary viewpoint, and the injury to
feelings, i.e. the indignity, mental suffering, disgrace and
humiliation, with any attendant loss of social status and injury
to reputation. This will be included in the general damages which
are usually awarded in these cases...."
It is clear from the above authority that the Plaintiff herein is entitled

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

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the Plaintiff suffering indignity, mental suffering, disgrace and

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, 18th edition, Sweet &

Maxwell (2009) state at page 1575, paragraph 37-017:

"The manner in which the false imprisonment is effected may

lead to aggravation or mitigation of the damage, and hence of
the damages. The authorities illustrate in particular the general
principle stated by Lawrence L.J. in Walter v Alltools that:
"any evidence which tends to aggravate or mitigate the
damage to a man's reputation which flows naturally from
his imprisonment must be admissible up to the moment
when damages are assessed. A false imprisonment does not
merely affect a man's liberty; it also affects his reputation.
The damage continues until it is caused to cease by an
avowal that the imprisonment was false."

However, it is submitted that an unsuccessful plea by the

defendant should not lead to an aggravation of the damages
unless it is shown that the defendant made the charge mala fide.
Otherwise, a bona fide dilemma: if he fails to plead the truth of
the charge he risks losing the action against him, while if he
does plead the truth of the charge he risks an award of
aggravated damages against him."
The Plaintiff herein, as stated earlier, has not proved to the Court

that there was malice in his prosecution. The Plaintiff has further

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 In relation to exemplary damages, the Supreme Court in the case of
....
China Henan International Development Corporation Limited v

Victor Chewe Appeal No. SSA/2011 14 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 behaviour on the part of the
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."

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 disregard of
the plaintiff's rights."

Black's law Dictionary, 9 th 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

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•
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

Selected Judgment No. 28 of 2017 16, the Supreme Court held as

follows:

"But in the Kawimbe, Kakoma and Sam Amos Mumba cases we

held that:
"The award of general damages in cases of false imprisonment
must where these factors are present, always take into account
the circumstances of the arrest and detention, the affront to the
person's dignity and the damage to his reputation."
I accordingly 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.

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, 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

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