MTSHIYA J: This is an action wherein at the close of the
plaintiff's case the defendants applied for absolution from the instance. I
allowed the parties to file heads of argument.
In the action, the plaintiff prayed for the following relief:-
“(a)
Payment of the sum of (US20 00-00) twenty thousand United States Dollars for
damages for malicious, wrongful arrest and detention of Plaintiff by Police
Officers from Braeside Police Station on or about 25th February 2011
for 17 hours with an intention to cause suffering and prejudice caused and
instigated by 1st and 2nd Defendants a consequence of
which arrest and detention Plaintiff suffered contumelia and was
deprived of his liberty as applified in his declaration hereto attached;
(b)
Interest calculated at the prescribed rate
from 25th February 2011 (date of delict) to date payment in
full;
(c)
Costs of suit”
The facts of the case were that on 25 February 2011 the first defendant caused
the arrest of the plaintiff on the ground that the plaintiff had assaulted him.
The plaintiff alleged that the arrest was at the instigation of the second
defendant who was the employer of the first defendant. He also alleged that the
report of assault was false and malicious. Following the arrest the plaintiff
was incarcerated in a cell at Braeside Police Station in an overcrowded cell
for 17 hours. The plaintiff said during the incarceration one of his testicles
was injured when an inmate fell on him.
It is on the basis of the above facts that the plaintiff made his claim against
the defendants.
On 7 December 2012 the parties filed a joint
pre-trial conference minute wherein the agreed issues for determination were
listed as follows:-
“1.
Whether or not 1st Defendant made the
police report at the instance of 2nd Defendant?
2.
Whether or not Plaintiff suffered injuries as a result of his arrest and in
police custody?
3.
Whether or not Defendants are liable for injuries sustained by Plaintiff?
4.
What is the quantum of damages due to Plaintiff by Defendants viz a viz
injuries sustained?
5.
What is the quantum of damages due to Plaintiff by defendants viz a viz
unlawful arrest and detention.”
In the joint pre-trial minute there was an admission of the fact that the first
defendant accepted liability for laying a false charge against the plaintiff.
The false charge was, however, not disclosed to the court.
However, in his declaration the plaintiff states:-
In or about February 2011 and at Harare 1st
Defendant in the course and scope of his employment with 2nd
Defendant, made a report to the Zimbabwe Republic Police, Braeside Police Station,
alleging that Plaintiff had assaulted him.
Plaintiff avers that such a report was made by the 1st
Defendant acting on the directions of the 2nd Defendant.
The said report was false, and malicious in that both 21st
Defendant and 2nd Defendant as represented by its directors Anisha
whose full particulars are known to Plaintiff and R Kiservan also whose full
particulars are not known to Plaintiff were all well aware that 1st
Defendant had not been assaulted nor threatened in any manner by the Plaintiff.
On 25th February and at Harare, 1st
Defendant as directed by 2nd Defendant caused and instigated Police
Officers from Braeside Police Station led by one Constable Tarisai to arrest
and detain Plaintiff within holding cells at Braeside Police Station. When
laying this false charge and giving this false information, 1st
Defendant had no reasonable or probable cause for doing so nor did the 2nd
Defendant have any belief in the truth of information given.
The said arrest and detention were in all the circumstances
malicious, wrongful and without justification or excuse and all intended to
cause suffering and prejudice to Plaintiff as the report upon which they were
premised was malicious and false and carefully planned to absent Plaintiff from
a disciplinary hearing upon which the 2nd Defendant later discharged
Plaintiff from its employ.
On 26th February 2011 the 1st
Defendant then proceeded to withdraw his complaint although plaintiff had
already been incarcerated for 17 hours without giving Plaintiff an opportunity
to be heard before a court of law nor leaving the law to take its
course.”
Further more in his amended summary of evidence filed on 25 June 2012 the
plaintiff stated that:-
“2nd defendant requested that Plaintiff attend a
disciplinary hearing and on the date of the said hearing plaintiff was arrested
by two police officers who told him that the first defendant had complained
that plaintiff had assaulted him and threatened him with death.”
The above pleadings give reasons for the arrest. However,
in his evidence the plaintiff said he was never told of the reason for his
arrest until released. Be that as it may, at the end of the trial the plaintiff
said he no longer had any issue with the first defendant. He saw no need to
proceed against the first defendant.
Contrary to his claim for US$375-00 in respect of medical expenses and as
contained in his amended declaration, the plaintiff conceded that he had paid
only US$180-00. He further went on to say instead of claiming US$19 500-00 as
damages for future specialist medical treatment the correct amount was US$27
00-00. The plaintiff produced a medical report and an affidavit dated 01
October 2012 and 9 October 2012 respectively. Those reports, coming after over
a year following the injuries in police cells, required further expert evidence
to link them to the injuries. (i.e. injuries sustained on 25 February 2011).
The plaintiff also went on to produce an unauthenticated document purporting to
be a police report dated 11 March 2011. The report, in full, read:-
“Reference of report made to Police on 25 February 2011 on
CR 175/02/11, a result of investigations carried out: Case was withdrawn by
complainant.”
The report did not bear an official stamp of Braeside Police Station and did
not spell out what the case was and the persons involved.
It was on the basis of the above discrepancies in the plaintiff's evidence that
the defendants found it necessary to apply for absolution from the instance. They
were, in my view, justified to do so because the plaintiff has indeed failed to
present a prima facie case before the court.
The plaintiff has clearly disowned his own pleadings and
also proceeded to exonerate the first defendant. In view of the vicarious
nature of the claim against the second defendant, I hold the view that, without
a case against the first defendant, no case can attach to the second defendant.
The second defendant agreed that it provided transport to the arresting details
as they took the plaintiff to the police station. The plaintiff also agreed
that there was nothing wrong with the second defendant co-operating with the
police.
The plaintiff's evidence was far from establishing that the
first defendant, whatever report he made to the police had been instigated by
the second defendant. Even assuming that the exonerated first defendant had
made a false report, the said report was not before the court. Furthermore
according to his own evidence, the plaintiff was never told the reasons for his
arrest. The plaintiff can therefore proceed against those who arrested him for
no reason. (i.e. the police whom he did not cite). The issue now is whether or
not the second defendant should be absolved from the instance.
In Limited Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341
(S) it was stated:-
“The test in deciding an application for absolution
from the instance is well settled in this jurisdiction. A plaintiff will
successfully withstand such an application if at the case, there is evidence
upon which a court directing its mind reasonably to such evidence, could or
might (not should or ought to) find for him. See Supreme Services Station
1969 (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 RLR (a) at 5 D-E; Laurenco
v Raja Laundry (Pvt) Ltd 1984 (2) ZLR (S) at 158 B-E.”
The above is the law governing an application of this nature and indeed, as
submitted by both defendants, I find nothing “on which a court might make a
reasonable mistake and give judgement for the plaintiff.” The plaintiff has
dismally failed to present a prima facie case before the
court.
Although reluctantly, the plaintiff's counsel conceded to the above finding. I
say reluctantly because of the contradictory nature of the submission made at
the end of her Heads of Argument. In para 5 of her Heads of Argument Ms Machanzi,
for the plaintiff, submits, in part, as follows:-
“It is humbly submitted that the essential elements of the
Plaintiff's claim have been proved on a balance of probabilities. Absolution
from the instance will not be competent in the circumstances. Proceeding to
find that the Plaintiff have failed to establish essential element to his claim
with respect will be undue to Plaintiff as Defendant's admission was by law
conclusive of the issue of who made false report and what was contained in the
report. See Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd
SC10/11. Plaintiff submits that, he did not bear any onus to prove his arrest
and reasons thereof in light of 1st defendant's
admission.
In Supreme Services Station 1969 (Pvt) Ltd v Fox &
Goodridge (Pvt) Ltd 1971(1) RLR A, the court held that there are silent
features a court should bear in mind and exercise caution over as regards
applications of this nature. Beadle CJ had this to say;
“The court should bear in mind
that the defendant has not yet given evidence and cross examined on it. If the
plaintiff has made same case for the defendant to answer and the defence is
something peculiarly within knowledge of defendant, justice demands that he
should be heard......”
Ms Machanzi then goes on to say:-
The issue that remains is whether the Plaintiff was
detained by the Police and whether he sustained injuries from police holding
cells. The evidence of the Plaintiff is far from satisfactory. It is with
heavy heart that the same is submitted for plaintiff as the Plaintiff's action
cannot be supported.” (My own underlining)
All in all, given the foregoing, the application for absolution from the
instance has merit. That disposes of the main matter before the court
On the issue of costs I am not persuaded to grant costs on higher scale as
prayed for by defendants. Notwithstanding failure to establish a case against
the second defendant, there is an admission by the first defendant that he
caused the arrest of the plaintiff. What we do not have is the report and the
reasons behind the arrest. As I have indicated, it appears the plaintiff
suffered from making a proper determination on who to proceed against. In the
circumstances costs on ordinary scale would, in my view, be fair.
I therefore order as follows:-
1.
The application for absolution from the instance by both defendants be and is
hereby granted.
2.
The plaintiff's claim be and is hereby dismissed, and
3.
The plaintiff shall pay costs of suit.
Messrs C Mpame and Associates, plaintiff's legal practitioners
Messrs Musunga and Associates, 1st defendant's legal practitioners
MessrsTH
Chitapi and Associates, 2nd defendant's legal
practitioners.
