Liberty

Attorney General and Others v Phiri (Appeal No. 161/2014) [2017] ZMSC 63 (29 June 2017);

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Tort – False imprisonment – Elements of
Tort – False imprisonment – Burden of proof – Plaintiff need only prove fact of imprisonment – Defendant to prove that imprisonment was justified
Civil procedure – Findings of fact by trial court to be based only on evidence before court
Civil procedure – Appellate court – Circumstances in which damages will be assessed on appeal as opposed to case being referred to Deputy Registrar
Damages – False imprisonment and wrongful detention – Factors to be taken into account
Tort – Battery – Whether police force is authorised to beat up suspects and detainees

On 17 January 2007 the Respondent was attending a funeral in Lundazi when a Land Cruiser appeared and the occupants of the vehicle requested him to get into the car. When he refused to get into the car he was threatened with a pistol, forcing him to jump into the vehicle. They then went to Lundazi General Hospital, got some documents and proceeded to Lundazi Police Station where the Respondent was detained by the Appellants. The next day the Respondent was taken to the CID where he was unclothed and beaten with two axe handles by the Appellants and informed about theft of solar panels. The Respondent sustained injuries all over his body and was hospitalised at Lundazi General Hospital for a month.
On 23 February 2007 the Respondent appeared in the Subordinate Court and he pleaded not guilty to a charge of theft of solar panels. On 11 July 2007 the Respondent was found with no case to answer and was acquitted. The Respondent commenced an action against the Appellants claiming damages for false imprisonment; assault and battery; and malicious prosecution. The trial court found that the Respondent was battered by the Appellants on 18 January 2007 to such an extent that he was hospitalised. It also found that the Respondent was falsely imprisoned from 17 to 18 January 2007 when he was informed of the reason for his apprehension. The Respondent was awarded damages for assault and battery, and false imprisonment, to be assessed by the Deputy Registrar. The trial court dismissed the claim for malicious prosecution on the basis that the facts upon which he was prosecuted by the police gave rise to a reasonable and probable cause to prosecute and that there was no malice. The Appellants appealed only against the finding of liability for false imprisonment on the basis that the lower court did not take into account the fact that the person who interrogated the Respondent at the police station and possibly informed him of the reasons for his arrest was deceased and also that the lower court failed to take into account whether there was unlawful detention.

Held:
1. False imprisonment consists in unlawfully and either intentionally or recklessly restraining another person’s freedom of movement from a particular place. The restraint must be total for a time, however short. There is no false imprisonment if a person’s arrest is justifiable or if there is reasonable and probable cause for restraint.
2. In an action for false imprisonment it is necessary for the plaintiff to prove nothing but the imprisonment itself; it is then for the defendant to discharge the onus of justifying it. The Attorney General v Kakoma (1975) ZR 273 approved.
3. The above 2 are not the only considerations in a claim for false imprisonment. Where a Police Officer makes an arrest without warrant, it is incumbent upon him to inform the person so arrested of the grounds for his arrest unless he himself produces a situation which makes it practically impossible to inform him. Failure to inform the arrested person as soon as is reasonably practicable to do so of the true reason of his arrest will, in a proper case, constitute false imprisonment. The Respondent’s evidence was not contradicted, namely that he was only informed of the grounds for his detention on 18 January 2007. A trial court is entitled to make findings of fact only on the evidence before it. The court is not in a position to discover what kind of evidence could have been given by witnesses who are not called to testify whether they are alive or dead. The Attorney General v Sam Amos Mumba (1984) ZR 14 followed
4. The position taken in the Kakoma case was that since all the relevant facts were before the court, the court was in just as good a position as the trial judge to resolve the issue. The Court observed that it would be doing the parties no service whatever if it we were to involve them in the expense which would be incurred if the matter were to be sent
back on the issue of damages. The Court accordingly proceeded to assess the damages. The same shall be done in this case as there is sufficient evidence of the circumstances of both the detention and the assault and battery. The Attorney General v Kakoma (1975) ZR 273 followed.
5. In dealing with the quantum for damages, it cannot be resolved with any precision and awards in other cases must be treated with caution if it is sought to rely on them as a guide. 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. 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. Where the tortious circumstances are more serious, then the awards must reflect this, as well as the impact of inflation in order to arrive at a fair and reasonable amount. Local precedents favour moderate figures consistent with Zambian values under the prevailing economic and social situation. Kawimbe v The Attorney General (1974) ZR 244, The Attorney General v Kakoma (1975) ZR 273 and The Attorney General v Sam Amos Mumba (1984) ZR 14 followed
6. There is no law which authorises the police to beat up members of the public whom they have detained for investigations, and any assault by police in these circumstances must necessarily be viewed as a serious matter. The beating up of suspects, however serious the crime, neither advances the cause of justice nor does it reflect to the credit of the Police Force. The Attorney General v Felix Chris Kaleya (1982) ZR 1 followed

Esan v Attorney General (Appeal No. 96/2014) [2016] ZMSC 225 (9 December 2016);

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The Appellant was chief executive officer of Lafarge Zambia. He was issued with a Zambian employment permit on 14 February 2012 which was valid for two years. On 3 December 2012, the Appellant was detained by immigration officers at Kenneth Kaunda International Airport. He was not given any reasons for his detention other than that the officers were under instructions to detain him. That same night, as the Appellant was being driven to Ndola to be put on a scheduled flight to Nairobi, he was furnished with a document revoking his permit.

Upon arrival in Ndola, it was found that the flight the Appellant was supposed to board had been rescheduled to depart later, and it was decided that the Appellant be put on a South African Airways flight to South Africa. As such, the Appellant was taken to wait at a lodge for the flight which was scheduled to leave at 13:00 hours the next day. When they went back to the airport, the Appellant was handed a Notice of Prohibited Immigrant to leave Zambia. This notice was stamped 5 December 2012 and stated that the Appellant had become a prohibited immigrant under section 35 (1) and (2) of the Immigration and Deportation Act No 18 of 2010 and the immigration authorities had been directed by the Minister of Home Affairs to order him to leave the country within 24 hours of receipt of the notice.

According to the notice, the Appellant was a prohibited immigrant because he belonged to persons named in Class D of the Second Schedule to the Immigration and Deportation Act No 18 of 2010. These were persons whose permit to remain in Zambia has expired or been revoked. The Appellant was also said to be a prohibited immigrant because the Minister of Home Affairs had in writing declared his presence in Zambia to be inimical to the public interest.
After the Appellant’s expulsion from Zambia, the Appellant through his lawyers, appealed to the Minister of Home Affairs for temporary exemption from the Class D category under the Immigration and Deportation Act No 18 of 2010. This was done to enable the Appellant return to work while a long term settlement was being sought. However, this application was rejected. The Appellant thus issued process in the High Court for Zambia seeking judicial review. He sought an order of certiorari, to move into the High Court, for purposes of quashing, the decision of the Director General of Immigration to revoke his work permit and deport him on the ground that the decision was procedurally improper and irrational. On the ground of procedural impropriety, the Appellant contended that the purported revocation of his permit and his subsequent deportation from Zambia were illegal and void ab initio as the sine qua non in section 10 of the Immigration and Deportation Act No 18 of 2010 was not satisfied. The Appellant alleged that he was neither accorded an opportunity to be heard nor was he given any reasons for the revocation of his work permit as provided for under section 10 (1) of the Immigration and Deportation Act No 18 of 2010. On the ground of irrationality, the Appellant contended that the decision of the Director General, purporting to revoke his permit and deport him, was premised on improper motives and bad faith, as no proper investigations were conducted.
In a ruling dated 19 February 2014, the High Court dismissed the Appellant’s application for an order of certiorari to quash the decision of the Director General of Immigration, revoking his employment permit and deporting him from Zambia. As a result, the Appellant appealed this ruling to the Supreme Court.

Held:
1. Where legislation seems to grant absolute discretion by leaving little or no room to question the legitimacy of an exercise of public power, courts ought to be conscious of emerging trends towards a more open and transparent government that promotes the rule of law, human rights and curbs arbitrariness. The Court should go behind the orders and delve into the circumstances in which the power was exercised especially where there is prima facie evidence of arbitrariness or perverse actions, to ensure that it was exercised lawfully and within the confines of the law.

2. Under section 34 (1) of the Act, the Director General of Immigration has the power, after giving a notice in writing, to revoke any permit issued under the Act, if the holder among others, is likely to be a danger to peace and good order in Zambia. Such a notice must specify the grounds on which the permit is revoked. The court below therefore properly found that the revocation of the Appellant’s work permit was void and of no effect as it was not preceded by the requisite notice and no reasons were advanced for the action.

3. A case is defined by its pleadings. In judicial review proceedings, the court has power to grant orders of mandamus, prohibition, certiorari, declarations, injunctions and even damages if these have been pleaded. The pleadings in this case showed that the Appellant only sought an order of certiorari relying on procedural impropriety and irrationality and he did not plead for the other reliefs. The learned trial Judge could not therefore be faulted for having confined himself to the reliefs that were pleaded.

4. The Minister of Home Affairs’ declaration that a person’s presence is inimical to the public interest should be made in writing in accordance with section 35 (2) of the Immigration and Deportation Act. Therefore, as there was no evidence of any declaration in writing that was made by the Minister, the determination of the Court below upholding the Minister’s decision is set aside. The removal of the Appellant from Zambia was unlawful.

Selected Judgment No. 47 of 2016

IN THE SUPREME COURT OF ZAMBIA      APPEAL NO. 96/2014

HOLDEN AT NDOLA

(CIVIL JURISDICTION)

 

BETWEEN:

 

FOLAYINKA FOBISAIYE OLADIPO ESAN (MALE)      APPELLANT

       

AND

 

THE ATTORNEY GENERAL                                    RESPONDENT

 

 

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