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THE ATTORNEY-GENERAL v FRED CHILESHE NGOMA (1987) Z.R. 80 (S.C.)
|SUPREME COURTNGULUBE, AG. C.J., GARDNER, AG. D.C.J., AND SAKALA, J.S.4TH MAY,1987(S.C.Z. JUDGMENT NO. 18 OF 1987)|
|Damages - Assault and false imprisonment - Serious misconduct by police - Effect on level of damages.|
|The respondent was stopped at a road block by police officers. After initial conversation police officers accused him of boasting. He complained to a senior police officer about harassment and was told he would be handcuffed. Thereafter he was
grabbed by the throat, his arm was twisted, and he was kicked until he fell down. On the ground he was continually choked and kicked and lost consciousness. When he regained consciousness he found himself handcuffed in a police station. He felt pain in his chest and was assisted by three police officers to a cell. He was taken to hospital where he was found to have a cracked rib and abrasions on the chest. He was kept in hospital one night.
|GARDNER, AG.D.C.J.: delivered the judgment of the court.
This is an appeal from an award of damages by a deputy registrar under a consent judgment for assault and false imprisonment. In this judgment we will refer to the appellant as the defendant and the respondent as the plaintiff as they were in the court below.
The facts of this case were that on the 17th of April, 1981, the plaintiff was driving his car from Lusaka to Kafue River Motel and in the course of his journey he passed through two road blocks and reached a third road block where he was stopped at 0900 hours. The police on the Lusaka side of the road block allowed him to pass and so did the policemen on the Kafue side but, after he had passed the second policeman and was intending to turn right, the policeman called to him to stop and when he did so, he was told to pick up some orange peel which he had thrown out of the window of his car. After he had picked up the peel he was ordered by the police to park the car on the side of the road, and, when he told the policemen in answer to a question that he was an engineer by profession, the policeman was infuriated and accused him of boasting. After a short while a women police officer came to the plaintiff and accused him of being proud because he was driving a Falcon motor car. When the plaintiff insisted on seeing a senior officer he was sent to a man in civilian clothes on the other side of the road where he had to wait in a bus shelter. After some time the first uniformed policeman called to tell the plaintiff that whatever he did he would be kept there for the whole day. When a senior police officer arrived later the plaintiff complained to him about the harassment he had undergone and the senior police officer threatened to handcuff him. The plaintiff pleaded with the senior officer to tell his constables to leave him alone, but the officer spoke to them in a casual manner, and, as a result, two or three police officers attacked the plaintiff. One grabbed the plaintiff by the throat whilst one twisted his arm and another kicked him until he fell down. As he lay down they continued to choke and kick him, as a result of which he
lost consciousness until he woke later to find himself in a police station with his hands handcuffed.
Mr Goel has drawn our attention to the fact that, in his final submission at the trial, counsel for the plaintiff said that he asked for a high figure for the assault and a lower one for the false imprisonment. In the event, the learned deputy registrar awarded K1,500 for the assault and a far higher sum of K7,000 for the false imprisonment. We consider that the proper way to approach this case is to view the total damages as a whole. The assault took place during the time of the false imprisonment and one could hardly be separated from the other. We will also take into account that there has been inflation since some of the earlier cases decided on this issue in Zambia, apart, of course, from the case of Mwiinde to which we have referred. In that case we found that a police officer had recklessly shot at and injured the plaintiff and for that reckless assault we awarded K20,000 apart from the damages for pain and suffering.