Scribd Logo
Upload

Welcome to Scribd!

  • 1 views

    2021 MWHC 172

    Uploaded by

    cgmakwete

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd

    2021 MWHC 172

    Uploaded by

    cgmakwete
    1 views4 pages

    Original Title

    2021-mwhc-172

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    1 views4 pages

    2021 MWHC 172

    Uploaded by

    cgmakwete

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 4

    IN THE HIGH COURT OF MALAWI

    LILONGWE DISTRICT REGISTRY


    CIVIL CAUSE NUMBER 1100 OF 2014

    BETWEEN:

    ENOCK GIBSON CHIWANDA CLAIMANT

    AND

    ATTORNEY GENERAL..................................................................................... DEFENDANT

    CORUM: R.M CHINANGWA JUDGE


    Chihana Counsel for the Claimant
    Chisiza Counsel for the Defendant
    Chitao Counsel for theRespondent

    JUDGEMENT
    Introduction
    1. The claimant claims damages for a) malicious prosecution b) damages for cruel, inhumane
    and degrading treatment and c) costs for the action
    2. The claims were opposed. A total of two witnesses gave evidence through witness
    statements and they were examined. Below is the summary of the evidence.

    1
    The Evidence
    3. The claimant stated that he is a police officer based at Lilongwe Police Station. In the year
    2009, he was stationed at Area 47 police unit in Lilongwe. On or about the month of
    August, 2009. He was arrested by Lingadzi Police Station on allegation that he had
    committed the offence of buggery with a suspect in a police cell at Area 47 police unit. He
    was then tried and convicted for 5 years imprisonment with hard labour. He appealed
    against the conviction and sentence and the High Court quashed his conviction and
    sentence. The claimant argues that among other reasons for quashing the conviction and
    setting aside the sentence, the High Court stated that the respondent’s case had serious
    loopholes that raised reasonable doubts on their case. The respondent failed to comply with
    the procedure provided under the law when giving evidence and there was conflicting
    evidence between the complainant and the third prosecution witness. The claimant was
    incarcerated for 9 months and he argues that he was subjected to torture, cruel and inhuman
    and degrading treatment; his reputation has been tarnished and cannot be repaired; he lost
    money and resources.
    4. In defence Superintendent Diederichs Banda stated that he was the investigator in the
    matter that led to the arrest of the claimant. He received a report from Area 47 Police Unit
    officers that the claimant had sexually assaulted Mr Analia. In his investigations he
    established that during the night, the claimant took the complainant out of the police cell
    and committed buggery with the complainant. A medical examination proved that the
    complainant was sexually assaulted. The claimant denied the charge on being cautioned.
    As an arresting officer, the witness stated that he believed the complainant had committed
    the crime because the complainant had difficulties walking and complained of pain
    between his legs; other suspects told the investigator that the claimant took the complainant
    outside the cell at night and a medical report established penetration.

    Issues for Determination


    5. This court has to determine whether the claimant has proved his claims on a balance of
    probabilities. These will be dealt with below.

    Analysis of Law and Finding

    2
    6. On malicious prosecution: In Mbewe v Agricultural Development and Marketing
    Corporation [1993] 16(2) MLR 594 (HC) it was held that malicious prosecution requires
    proof of absence of reasonable and probable cause and proof of malice in commencing
    proceedings. A plaintiff may prove malice by showing improper motive or purpose. The
    claimant was arrested following an allegation that he committed sexual act with a male
    inmate. The defence argue that the prosecution was without malice because the
    complainant had difficulties walking and complained of pain between his legs; other
    suspects told the investigator that the claimant took the complainant outside the cell at night
    and a medical report established penetration. As was observed in the High Court decision
    on appeal, a medical report would have proved beyond reasonable doubt whether the
    offence was committed or not. The author of the medical report as required by law did not
    present his findings before the court of first instance. This was one of the key witnesses to
    the claimant’s criminal matter. His absence shows there was lower probability of success
    in the matter and no probable cause to prosecute the claimant. In addition, the evidence had
    to pint to the fact that the claimant did commit the offence. The identity of the accused was
    only told of by other suspects. Again, what is not clear as to how did they identified the
    claimant as the suspect. As the High Court decision on appeal observes, there were other
    police officers apart from the claimant in the same house. Again, the probability of success
    on the evidence regarding who committed the crime left a lot to be desired. The defence
    evidence had to show high prospects of success regarding two aspects. First was the offence
    committed and secondly who committed the offence. These fell short. The claim for
    malicious prosecution succeeds.
    7. On cruel, inhumane and degrading treatment: The claimant states he suffered this form of
    treatment whilst in custody for 9 months. However, the claimant did not adduce evidence
    to show what cruel treatment he suffered/ what inhumane treatment he suffered or what
    degrading treatment he suffered? All he has done is to lay the claim. As observed in
    Marinho v SGS Blantyre (Pvt) Ltd [1998] MLR 208 (HC) the court stated that a plaintiff
    cannot just lay a claim and leave it to the court to decide. It is interesting to note that in the '
    skeletal arguments clause 4.3.6 Counsel states ‘as a result of being incarcerated the
    claimant sustained pecuniary loss from his work benefits, business prospects, costs of
    undertaking the proceedings at the court using legal services at appeal stage. All these

    3
    expenses should be recoverable’. Here Counsel is giving evidence on behalf of the claimant
    which should not be the case. Even if it is argued not, the claimant has not shown in
    evidence which business he was running so that the loss is decided in his favour. The
    claimants’ claims fail for they have not been substantiated.
    8. Regarding costs, it is trite that costs are awarded in the discretion of the court. If the defence
    had read the High Court decision on appeal, trial in this matter would have been avoided.

    Finding
    9. The claims for damages for malicious prosecution and costs of action succeed. The claim
    for damages for cruel, inhumane and degrading treatment fail.
    10. The amount of damages are to be assessed by the Assistant Registrar on a date to be fixed.

    Pronounced this 24th day of September 2021 at LILONGWE

    JUDGE

    You might also like