IN THE MALAWI SUPREME COURT OF APPEAL
AT BLANTYRE
MSCA CIVIL APPEAL NO. 1 OF 1997
(Being High Court, Lilongwe District Registry
Civil Cause No. 91 of
1992)
BETWEEN:
PRESS (FARMING) LIMITED (A
Firm)................................APPELLANT
- and -
MAJID
ISAAT..............................................................1ST
RESPONDENT
- and -
FAROOK
ISAAT.........................................................2ND RESPONDENT
- and -
RASHID
ISAAT..........................................................3RD RESPONDENT
- and -
KENNETH
MGANGILA............................................4TH RESPONDENT
- and
REX
CHATATA..........................................................5TH RESPONDENT
- and -
IDRISS
ALI..................................................................6TH
RESPONDENT
BEFORE: THE
HONOURABLE THE CHIEF JUSTICE
THE HONOURABLE MR JUSTICE
UNYOLO, JA
THE HONOURABLE MR JUSTICE
KALAILE, JA
W Msiska, Counsel for the
Appellant
Msungama, Counsel for the
Respondents
Chirambo (Mrs), Official
Interpreter/Recorder
J U D G M E N T
Unyolo, JA
The respondents were arrested
by the Police after an employee of the appellant had reported a case of
attempted theft of a water pump at one of the appellant’s estates known as
Kakoma 1. The respondents were tried for
the offence in the Principal Resident Magistrate’s Court at Lilongwe and were
acquitted on a submission of no case to answer. They then instituted civil proceedings in the Court below for
damages for false imprisonment, slander and malicious prosecution. They also claimed special damages. They succeeded on the claims for false
imprisonment and slander and also on the claim for special damages. In respect of the claim for false
imprisonment, the Court awarded aggravated damages. Being dissatisfied with that decision, the appellant appealed to
this Court.
Several matters arise for
determination in this appeal. The first
concerns whether the proferred evidence supported the pleadings and findings on
the claim for false imprisonment.
Paragraph 4 of the statement of claim is directly relevant on this
aspect of the case. The paragraph
provides:
“On or about the 11th
November, 1990 the said Mr Chisambo, acting in the course of his employment,
wrongfully directed and procured the Police Officer to arrest the plaintiffs
and take them into custody on a charge then made by the defendant’s employee
that the plaintiffs had stolen the defendant’s water pump from the said Kakoma
1 Estate.”
In argument, counsel for the
appellant submitted that there was no evidence on record supporting the
allegation made in the paragraph just reproduced, namely, that the appellant’s
employee, Mr Chisambo, made a charge to the Police that the respondents had
stolen the appellant’s water pump, and
directed and procured the Police to arrest the respondents and take them
into custody. Counsel submitted that
rather the evidence was that after the appellant found that the water pump had
been interfered with, the matter was referred to the Police and that after
visiting the estate and interviewing the respondents, the Police, on their own,
made the decision to arrest the respondents and take them into custody.
Counsel for the respondents
disagreed with this submission. He
contended that there was ample evidence which showed that Mr Chisambo did make
a charge of attempted theft against the respondents and directed and procured
the Police to arrest them and take them into custody.
It is trite that the crucial
issue in an action for false imprisonment is whether the defendant or his
servants or agents made a charge against the plaintiff on which it became the
duty of the police to arrest. If the
defendant made such a charge, then he is liable. He is, however, not liable if he merely gave information, or
merely stated the facts, and the police acted according to their own
judgment. In Admarc v. Stambuli,
MSCA Civil Appeal No. 6 of 1984, it was stated on this point that if the
defendant went to the police station and stated that he suspected that an
offence had been committed and requested the police to investigate, that would
be laying an information because any arrest subsequently would take place on
the discretion of the police, after examining the facts.
Referring to the evidence, it
was common case that there was a confrontation between the appellant’s employees
and the respondents during the night of 21st October 1990 on a road within the
appellant’s estate at Kakoma 1 Estate.
There was evidence that a water pump at the estate was found to have
been tampered with. It was not disputed
that the matter was reported to the Police on 22nd October 1990. It was also not disputed that
the respondents were arrested on 11th November 1990. It
is instructive to reproduce the respondents’
evidence on this part of the case. PW1,
who is the 5th Respondent, said:
“Next morning
everybody went to his office for the usual duties until on 11th November 1990
when I went back to my office I had a message saying that I should report at
the Police Station. It was Lilongwe
Police Station. It was almost lunch
hour I was told to report at CID’s office to meet Mr Sikazwe, CID. When I went there I found my friends, Majid
with two brothers, plus the other two, meaning Farook Isaat and Rashid Isaat,
Mgangila, plus Idriss. I was the sixth
one. Mr Sikazwe invited us into the
office. He asked one by one of us what
happened on that particular day. I did
not meet a gentleman by the name of Chisambo at the Police. Each one of us was asked separately. After giving all the statements at around 1
o’clock pm, we were all locked in at the Police Station by the Police.”
And PW2, the 1st Respondent, who was the only other
witness on the respondents’ side, said:
“After sometime I
received a phone call from my brother who used to stay at Chilinde that there
were some policemen who wanted to see me at the Station together with my
gun. I went to tell my friend Rex
(PW1). We went together there and we
were put into cells. We went to
Lilongwe Police Station of Old Town. I
found Mr Sikazwe. He told me that they
had been looking for me and my friends.
He claimed that I had gone to Kakoma Estate to steal a water pump. This was through information from a Farm
Manager of the said Estate. Afterwards,
a statement was recorded from me and my friends. We were not released to go home.
It was on 11th of November 1990.”
Stopping here for a moment, it
will be seen that there was conflict between the respondents’ case on their
pleadings and the evidence they adduced.
As we have shown, the respondents’ allegation, according to their
statement of claim, was that it was one, Chisambo, who, on 11th November 1990,
directed and procured the Police to arrest them, charging them with having
stolen a water pump. The evidence,
however, does not bear this out. As we
have indicated, the two respondents who testified at the trial said that when
they called at the Police Station, on this date, the 11th November 1990, having
learnt that they were wanted, they met a Mr Sikazwe, not Mr Chisambo. Actually, we have shown that PW1 expressly
stated that he did not meet Mr Chisambo.
Again, it will be seen that there was a discrepancy between the
allegation made in the statement of claim and the evidence on the question of
the charge the appellant’s employees specifically made against the
respondents. In the statement of claim,
the charge was said to be that of theft of a water pump. In the evidence, it was said that the charge
was that of attempted theft of the water pump.
Observably, no amendment of the statement of claim was sought. In our view, these were material
contradictions which dealt a devastating blow to the respondents’ case.
The police officer who dealt
with the case and interrogated the respondents was not called as a witness in
the civil action in the Court below.
The learned trial Judge seems to have held it against the appellant that
the appellant did not call the police officer.
With respect, we are unable to join with the learned trial Judge in this
view. In accordance with the
time-honoured principle of the law of evidence, he who affirms must prove the
assertion. The burden, therefore, lay
on the respondents to prove that the appellant made a charge against them.
The learned trial Judge
expressed the view that by reporting the matter to the Police, Mr Chisambo must
have, simply by that act, procured the Police to arrest the respondents. He said that the Police had not much option
but to arrest the respondents since the water pump belonged to Press
Farming. What was implied was that
since the appellant company was one of the companies that belonged to the
former Head of State, the Police had little choice but to arrest the
respondents when the appellant made the report.
With all respect, the learned
trial Judge’s view is not supported by the evidence. As we have indicated, the police did not arrest the respondents
soon the report was made. The evidence
showed that the Police carried out investigations which included a visit to the
Estate, and it was only some twenty-two days later that they called the
respondents to the Police Station for interrogation. The evidence showed that it was after the interrogation that the
respondents were taken into custody.
Looking at the evidence as a
whole, the distinct impression that is made is that the appellant’s employee
merely stated facts to the Police about what had transpired at the estate on
the relevant night when they met with the respondents and confronted them, and
that the Police, using their own judgment, arrested the respondents and took
them into custody. We are, therefore,
unable to support the finding that was made by the learned trial Judge on this
aspect of the case.
The second issue that arises
for determination in this appeal is whether the claim for slander was
proved. Counsel for the appellant
pointed out that the respondents’ case, according to their statement of claim
at paragraph 8, was that when they got to the Police Station on 11th November
1990, Mr Chisambo, the appellant’s Estate Manager, said to one, Mr Sikazwe, a
police officer, in the presence of other bystanders, the following words:
“These are the thieves, lock
them in.”
Counsel submitted that there
was nothing in the evidence to support this allegation.
Looking at the evidence, the
submission is borne out. None of the
respondents who testified at the trial said that he heard Chisambo utter the
alleged words. Actually, as already
pointed out, PW1, the 5th Respondent, said that he did not meet Mr Chisambo at
the Police Station. He said that he met
Mr Sikazwe who told him that it was alleged he wanted to steal the water
pump. It is clear that there was a
radical departure between the respondent’s case as pleaded and the evidence
that was adduced. In the circumstances,
we are unable to support the finding by the learned trial Judge on this point.
The other two issues that were
raised for the Court’s determination in this appeal were whether the special
damages that the Court below awarded were specifically and strictly
proved. The second issue was whether
aggravated damages can be awarded where aggravating circumstances had not been
pleaded. What happened in the present
case was that the learned trial Judge awarded aggravated damages, although no
aggravating facts or circumstances were specifically pleaded in the
respondents’ statement of claim.
Having come to the conclusion
that the respondents failed to prove their case on both the false imprisonment
and slander claims, the questions just mentioned fall out naturally. Since, however, the second issue, relating
to aggravated damages, raises a general question, we think that it might be
useful that the Court comments on this, particularly having been told by Counsel that the law appears to be
silent on this aspect.
There is plenty of authority
for the proposition that a plaintiff need not specifically plead general
damage(s) or particulars thereof: see paragraph
18/12/19 of the Supreme Court Practice, 1995 Edn. It is trite that special damages, however,
must as a rule be specifically pleaded.
Exemplary damages are one example of special damages that must be
specifically pleaded, together with the facts on which the party pleading
relies: see paragraph 18/12/6 of
the Supreme Court Practice, supra.
Referring to aggravated
damages, the matter is also covered by authority. Paragraph 18/12/6, just cited, states that “the facts
relied on to support a claim for aggravated damages should be specifically
pleaded”. Two cases are cited, namely, Rookes
v. Barnard (1964), 1 All ER 367 and Perestrello e Companhia Limitada v.
United Paint Co. (1969), 3 All ER 479.
The short answer to the question raised on this aspect of the case is,
therefore, that aggravated damages must be specifically pleaded, together with
the facts on which the claim is made.
This conclusion, in our view, is further supported by the general
requirement of any statement of claim that it should, to repeat the well-known
words of Cotton, LJ in Philipps v. Philipps (1878), 4 QBD 127 at 139,
“put the defendants on their guard and tell them what they have to meet when
the case comes for trial”.
In the instant case, the
learned trial Judge, therefore, erred in awarding aggravated damages when the
same, and particulars thereof, were not pleaded or claimed specifically in the
statement of claim.
The final position is that for
the foregoing reasons, this appeal must succeed in its entirety with costs, and
the findings made by the Court below and the damages it awarded are set side.
PRONOUNCED in open Court this
25th day of August 2000, at Blantyre.
Sgd ....................................................
R A BANDA, CJ
Sgd ....................................................
L E UNYOLO, JA
Sgd ....................................................
J B KALAILE, JA