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Court name
Supreme Court of Zambia
Case number
Appeal 161 of 2014

Attorney General & Others v Phiri (Appeal 161 of 2014) [2017] ZMSC 63 (29 June 2017);

Law report citations
Media neutral citation
[2017] ZMSC 63
Headnote and holding:

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

Coram
Mwanamwambwa, DCJ
Kaoma, JS
Mutuna, JS