IN THE SUPREME COURT OF ZAMBIA APPEAL NO.

158/2009
HOLDEN AT KABWE
(Civil Jurisdiction)

BETWEEN:

WINSTONE SIMPOSYA APPELLANT

AND

ERIC MASAUSO PHIRI 1st r e s p o n d e n t

CHILANGA CEMENT PLC 2nd r e s p o n d e n t
J. M. MASANDIKO 3rd r e s p o n d e n t
ATTORNEY GENERAL 4th r e s p o n d e n t

Coram : Mwanamwambwa, Chibomba and Musonda, JJS.

On 14thAugust, 2012 and on 23rd May, 2014.

For the Appellant: Mr. C. L. Mundia, S.C. of C.L Mundia and Company.
For the 1st and 2nd Respondent: Mr. N. Nchito, S.C. of Nchito and Nchito.
For the 3rd and 4th Respondent: Mrs. C. Mulenga, Assistant Senior State Advocate.

JUDGMENT

Chibomba, JS, delivered the Judgm ent of the Court.

Cases referred to:

1. Saeli Kalaluka vs Kingston Nkhoma, Appeal No. 14 of 2000
2. A ttorney General vs Sam Amos Mumba (1984) ZR 14
3. Claude Samuel Gaynor vs Cyril Robert Cowley (1971) ZR 50
4. Nkongolo Farms Limited vs Zambia National Commercial Bank Limited,
Kent Choice Limited (In Receivership) and Charles Haruperi, (2007) ZR
149
5. Mushemi Mushemi vs The People (1982) ZR 71
6. W ilson Masauso Zulu vs Avondale Housing Project Limited (1982) ZR
172
 -J2-

7. Konkola Copper Mines PLC vs Jacobus Keune, Appeal Num ber 29 o f

2005
8. Zambia Consolidated Copper Mines vs Eddie Zulu, (1999) ZR 80.
9. Nkhata and 4 Others vs The Attorney General (1966) ZR 124
10. Robson Banda (Suing as adm inistrator o f the estate of th e late
Rosemary Phiri) vs Evaristo Mulenga (sued as A dm inistrator o f the
Estate o f the late Steven Kabamba), (2003) ZR 121
11. Joyce Banda vs Attorney-General (1978) ZR 233
12. Daniel Chizoka Mbandangoma vs The Attorney-General (1979) ZR 45
13. Gertrude Munyonsi and The Attorney-General vs Catherine Ngalabeka
(1999) ZR 117
14. Zambia Revenue A utho rity vs Hitech Trading Company Limited (2001)
ZR 17

Other Materials referred to:

1. Oxford Dictionary of Law. 5th Edition (2003), Oxford University Press

2. Clerk and Lindsell on Torts. 17^ Edition (1995), London: Sweet a n d M a xw e ll
3. Halsburv’s Laws of England, 3r Edition, volume 38

When we heard this Appeal, Hon. Mr. Justice Dr. Musonda sat with

us. He has since resigned. This, therefore, is a majority Judgment.

The Appellant appeals against the Judgment of the High Court at

Lusaka, in which the learned Judge held that the Appellant had not proved

that he was wrongfully detained on the two occasions when he was taken

to the Police by his employer and released without being charged.

Consequently, the Court below declined to award him damages for

unlawful detention.

The brief facts leading to this Appeal are that the Appellant was an

employee of the 2ndRespondent, formerly Chilanga Cement Pic. and now

Lafarge Zambia Pic. He was employed as a Fitter. On the dates in

 -J3-

question, there were break-ins at the Buffer Store of the 2nd Respondent’s

Plant and bronze was stolen. The Appellant was taken to Chilanga Police

Station by the employees or agents of the 2nd Respondent, where he was

detained from 1st October, 2001 to 5thOctober, 2001 when he was released

without being charged. On 20th June, 2003, the Appellant was again taken

to the Police Station where he was detained by the 3rd Respondent for a

day and later released without being charged. The Appellant claims that he

was unlawfully detained on the two occasions as he was released without

being charged with any offence. He, therefore, commenced an action by

Writ of Summons in the High Court in which he claimed the following

reliefs:-

“ a) Damages fo r unlawful, m alicious im prisonm ent and/or arrest by the

1st, 3rd Defendants and by the late Nyim biri as employees of the 2nd
Defendant and GRZ, respectively.

b) Any other relief the Court may deem fit and appropriate and

costs.”

The Appellant claimed that his detentions and/or arrests and unlawful

imprisonment by the 1st and 3rd Respondents and the late Nyimbiri were a

total violation of his rights and a negation of justice and violation of the rule

of law as guaranteed by the Zambian Constitution and the African Charter

on Human and People’s Rights, as the allegation of breaking into the Buffer
 -J4-

Store by unknown persons was not sufficient to justify the arrest,

imprisonment and/or detention of the Appellant, as nothing was found in his

possession on all the two occasions inspite of the Respondents going to his

house to pick him up.

All the Respondents denied liability for wrongful and/or unlawful

detention of the Appellant in the Court below.

The learned Judge in the Court below heard evidence from the

parties which he considered and analyzed. He then came to the

conclusion that the Appellant had not established that he was unlawfully

detained.

Dissatisfied with the decision by the learned Judge, the Appellant

appealed to this Court advancing two grounds of appeal in the

Memorandum of Appeal as follows:-

“ 1. The trial Judge erred in law and in fact when he failed to evaluate the
evidence before him correctly and effectively and that there have been
serious contradictions to the extent that the evidence o f the A ppellant as
deposed was not correctly recorded.

2. That the trial Judge erred in law and in fact by his failure to address the
legal issues arising from the A ppellant’s unlawful detentions in both 2001
and 2003.”
 -J5-

The learned Counsel for the Appellant, Mr. Mundia, S.C, relied on the

Appellant’s Heads of Argument which he augmented with oral submissions.

The arguments in support of Ground one begin by reproducing the

evidence given by the Appellant in the Court below. We shall refer to this

evidence later.

It was contended that the evidence on record shows that there was a

serious omission in recording of the evidence by the Court below, as

according to the Judge, the Appellant made an arrangement with his

friends to work extra hours without approval, when in fact the approval

came from the shift manager. That the Court below considered at page 21

that it was Cheelo who saw the break-ins and later reported to his

supervisor and that this is what exonerated E.M. Phiri (1st Respondent)

from involvement in the 2001 incident, except for the 2003 break-in. It was

submitted that the evaluation of the evidence by the Court below was also

inconsistent with the evidence of DW1 (Carlos Cheelo) who told the Court

below at page 235 of the Record of Appeal that:-

“ I was given a van, w ent away, but later returned to store room when I
found w indow broken. I reported to Security at main gate. Mr. Phiri
Security Guard follow ed me to the Storeroom. Later he called fo r Police. In
the presence o f Police we checked fo r goods in the storeroom . We found
bronze m issing.”
 -J6-

ln cross examination, DW1 stated that:-

“ Erick M. Phiri is also Security Guard. I do not know if Mr. Phiri interview ed
the Plaintiff. I heard that the Plaintiff was interviewed by S ecurity.”

It was submitted that DW1’s evidence confirms the Appellant’s

evidence that in fact, the 1st Respondent is the one who took him to the

Police Station and that this evidence was at variance with the Judgment

which states that DW1 exonerated Erick Masauso Phiri. Therefore, the

failure by the Court below to evaluate the evidence before it was a serious

misdirection.

It was contended that it is a well-known general principle of law that

parties are bound by their pleadings. That at pages 26-28 of the Record of

Appeal, the Appellant pleaded inter alia, that:-

“ The 1st defendant sent him a call out to proceed to his office and he did so
but only to be detained by the said 1st defendant w ith o u t charge and later
to o k him to Musamba Police Station after accusing him o f having stolen
tw o pieces o f Bronze from the buffer store at Chilanga.”

It was submitted that this pleading has not been denied by the 1st or

2nd Respondents as nowhere in the evidence or defence has it been

pleaded that the 1st Respondent is not the one who detained the Appellant.

Hence, the pleadings are at variance with the evidence of the witness.
 -J7-

ln support of this contention, the case of Saeli Kalaluka vs K ingston

Nkhoma1 was cited in which we held and confirmed the principle o f law

that parties are bound by their own pleadings. It was submitted that had

the Court below addressed its mind to the issues before it, it would have

come to the conclusion that in both incidents, (in 2001 and 2003), the 1st

Respondent was involved in the unlawful detention of the Appellant.

It was further submitted that the Court below trivialized the matter

before it. In this respect, State Counsel drew our attention to paragraph 2

on page 22 of the Record of Appeal.

It was contended that the observation by the Court below in that

paragraph was contrary to the evidence on record as there was no

evidence or allegation that Mr. Phiri should not have reported the matter to

the Police, as the Appellant’s evidence was that he was called from his

house, detained by the 1st Respondent at his office and later he was taken

to Musamba Police Post, where he was detained by J. M. Masandiko (the

3rd Respondent), without any charge being preferred against him. That

there was no evidence before the Court below that showed that the

investigations concluded that the Appellant was indeed, the one who broke

into the Buffer Store. Citing pages 225 to 229 where the Appellant stated

that: -
 -J8-

“ On 30th September, 2001, I reported for w ork at 07.00 hours and I was
supposed to knock o ff at 21.30 hours. At 19.00 hours, I was inform ed by
the duty Manager, Mr. Mweenda that I was not going to knock o ff because
the person w ho was supposed to relieve me was sick. I requested the
Manager to allow me to go home and have meals as I was expected to
knock o ff at 07.00 hours the follow ing day. I was allowed but while at home
there was a breakdown in the Plant and the driver was sent to g o and
collect me from home, but did not find me as I had already left hom e on
foot fo r the Plant. I reached the Plant at 20:30 hours and attended to the
problem. A t 07:00 hours, I handed over the sh ift to the m orning crew on 1st
October, 2001.”

It was contended that the above evidence is clear and contrary to the

Judgment that the Appellant had swapped the shift with another officer

without alerting Management. Therefore, the Court below failed to

appreciate what constituted unlawful detention.

It was submitted that the Appellant’s contention is that there were no

reasonable grounds for the employees of the 2nd Respondent to have

detained him in their office and indeed, to have handed him over to

Chilanga Police Station, when there was no evidence that he had stolen

the items in question.

The case of the Attorney General vs Sam Amos Mumba2was cited

in which we held, inter alia, that: -

“ Where a Police O fficer makes an arrest w ith o u t w arrant it is incum bent

upon him to inform the person so arrested o f the ground fo r his arrest,
unless he him self produces a situation w hich makes it practically
im possible to inform him. Failure to inform the arrested person as soon as
 is reasonably practicable to do so of the true reason o f his arrest w ill in a
proper case constitute false imprisonment.

It is not enough, where a Police Officer makes an arrest w ith o u t w arrant,

that a Police O fficer has reasons fo r affecting an arrest w ith o u t w a rra n t if
such reasons are kept to him or if the reasons given are not true, in e ith e r
situation, such a Police Officer may be held liable fo r false im p ris o n m e n t.”

It was submitted that the Appellant, as a law abiding citizen and

having committed no offence whatsoever, responded to the call-out on two

occasions and that in 2003, he was detained for more than 48 hours

without charge and in 2001, he was also detained for 5 days without a

charge and he was not told of the offence. And that he was released on

both occasions without charge for lack of evidence.

It was pointed out that on page 23 of the Record, the Court below

stated that: -

“ It is against this background that the P laintiff’s arrest and detention by J.

M. Masandiko and not E. M. Phiri on 20th June, 2003 to 21st June 2003 at
09.00 hours is justifiable. I stress that it is J. M. Masandiko w ho on receipt
of the reasonable report from E. M. Phiri arrested the P laintiff and kept him
in Police cells. A t no time did E. M. Phiri arrest and detain the P la in tiff at
the Police station in the cells either in 2001 or 2003 or at all.”

It was submitted that the conclusion by the Court below was against

the weight of the evidence which was clear that the Appellant “was

summoned by the 1st Defendant to his office at Chilanga where he worked

as a Security Guard in the employ of the 2nd Respondent.”

 -J10-

It was pointed out that the conclusion by the Court below seemed to

suggest that the Police Officer can detain any one even where there are no

grounds or where the reason for the arrest or detention was not true. That

the cited evidence of DW2, at pages 236 to 239 of the Record of Appeal as

read with the evidence of DW3, at pages 241 to 244, clearly shows that the

Appellant was taken to Musamba Police Post by the 1st Respondent and

DW3’s evidence at page 243 confirms this as he stated that: -

“ I sent P laintiff a call-out to come to Musamba Police Post. I inform ed his

em ployer to let the Plaintiff come to the Police Post. Eric Phiri b ro u g h t him
in the vehicle. Eric Phiri introduced Plaintiff to me as one person among
the others w ho worked in the place w hich was broken in. P laintiff w as one
o f the suspects.”

It was argued that this evidence is collaborated by the evidence of

DW2 who told the Court below at page 237 that:-

“ P laintiff jum ped into G3 vehicle w hich drove to Musamba Police station
where we alighted from the vehicle and entered CID room .”

Hence, the evaluation of the evidence by the trial Court was

unsatisfactory. Mr. Mundia, S.C., cited the case of Claude Samuel

Gavnor vs Cyril Robert Cowley3in support of this contention.

It was submitted that the Appellant had proved that he was detained

on the allegations that were not true as he was not arrested or charged with

any offence. Therefore, that the Court below’s finding in justifying the arrest
 -Jll-

and detention was not supported by the evidence as the evidence before

the Court was that the Appellant was released without being arrested.

Hence, he was simply unlawfully detained.

In support of Ground 2 of this Appeal, it was contended that in both

2001 and 2003, the Appellant was unlawfully detained without charge by

the 1st and 3rd Respondents and the late Nyimbiri who was a Police Officer

at Chilanga Police Station. And that the question is not whether the

Appellant was detained or not but whether the detentions were lawful or

not. It was submitted that it was the duty of the Respondents to justify the

detention. And that the 4th Respondent does not deny that the Police

Officers were involved as only general denials were made and that those

denials did not change the Appellant’s case except that the Court below

failed to evaluate the evidence before it correctly. Citing page 226 of the

Record of Appeal, the Appellant’s evidence stated that:-

“ When I was to leave fo r home Mr. Erick Masauso Phiri, a Security O fficer
called me to his office w hich is at the gate. He asked me if I knew that the
locker in the buffer store was tampered with. I denied knowledge because
buffer store is fo r the store man. He said he detained me because when I
w ent fo r supper there was a breakdown in the plant hence S hift Manager
sent driver to pick me, but driver refused to be searched at the gate.”

And that: -
“ I was detained at 10.00 hours. I was released after I was kept there at
07.00 hours (presumably the following day). A t 14.00 hours same Security
Officer came from Chilanga Cement and told me I was wanted by Police
w ho he said instructed him to pick me up. I returned to his Office. Later,
 -J 12-

he took me to Chilanga Police where we met late Mr. Nyim biri to w h o m I

was handed over. In turn, Mr. Nyimbiri detained me fo r five days fro m 1st
October, 2001 to 5th October 2001 when Mr. Nyimbiri released me w ith o u t
being taken to Court to date as I was not arrested fo r any offence.”

It was submitted that the detention of the Appellant by the 1st

Respondent from 10:00 hours on 30th September, 2001 to 07:00 hours the

following day was totally wrongful in law especially that he was not charged

with any offence and that likewise, the detention by the late Nyimbiri from

1st October to 5th October, 2001 was equally wrongful as he was detained

without a charge having been preferred against him. It was argued the

finding of fact by the trial Judge that the 1st Respondent was exonerated by

DW1 (Carlos Cheelo) was not supported by the evidence on record as at

page 21 the learned Judge stated that:-

“ The same C.Cheelo exonerated E. M. Phiri from involvem ent in th e 2001

incident except the 2003 break-in. In fact E. M. Phiri only heard about the
2001 break-in w hich was handled by Inspector Chihana and G3 Security
Guard Chikuya.”

That, however, DW1 never said that in his evidence and that in cross-

examination, DW1 stated that: -

“ Erick M. Phiri is also Security Guard. I do not know if Mr. Phiri interviewed
the Plaintiff. I heard that the P laintiff was interviewed by Security.”
*

-J 13-

It was pointed out that this evidence does not amount to exoneration

of the 1st Respondent as DW1 under cross-examination stated that: -

“ I do not know if Mr. Erick M. Phiri took Plaintiff to Police S tation.”

Further, that the 1st and 2nd Respondents did not deny the contents of

paragraph 7 of the Statement of Claim but simply offered a general denial

in paragraph 6 of their defence. That had the Court below addressed itself

seriously to the pleadings and the evidence before it, it could not have

dismissed the Appellant’s claim and conclude that “at no time did E. M.

Phiri arrest or detain the Plaintiff at Police Station in the cells either in 2001

or 2003 or at all as the Appellant never stated in his evidence that he was

detained by the 1st Respondent at the Police Station. That his evidence at

page 226 of the Record of Appeal was that: -

“ When I was to leave fo r home, Mr. Erick Masauso Phiri, Security Officer
called me into his office w hich is at the gate. He asked me if I knew that
locker in the buffer store was tampered with. I denied knowledge because
buffer store is fo r the foreman (meaning he did not w ork in the storeroom .
He said he detained me because when I w ent fo r supper there was a
breakdown in the plant, hence Shift Manager sent driver to pick me but
driver refused to be searched at the gate. In the m orning they discovered
that lo ck to buffer store was tampered w ith and tw o pieces o f bronze were
stolen. Since I worked near the buffer store they expected me to know
som ething about the stolen bronze. I was detained at 10.00 hours and I
was released after I was kept there at 07.00 hours (Meaning the following
day).”
 -J 14-

That, however, the learned Judge glossed over this evidence by

arriving at the conclusion that the 1st Respondent did not detain the

Appellant in cells at the Police Station in 2001 or 2003. Hence, the learned

trial Judge failed to evaluate the evidence before him.

In terms of the law, it was submitted that it is a general principle of

law that the appellate Court rarely interferes with the findings of fact unless

such findings are not supported by the evidence or if it shows that the

lower Court erred in assessing or evaluating the evidence by taking into

account matters which ought not to have been taken into account or failed

to take into account some matters which ought to have been taken into

account or failed to take advantage of having seen and heard witnesses.

That this is the position this Court took in the case of Nkonqolo Farms

Limited vs Zambia National Commercial Bank Limited, Kent Choice

Limited (In Receivership) Charles Haruperi4. It was argued that the

Court below, therefore, erred by not only assessing the evidence before it

improperly but by also coming to conclusions on matters which were never

part of the evidence by the Respondents’ witnesses. Citing page 21 of the

Record of Appeal where the learned Judge stated that “the said C. Cheelo

exonerated E. M. Phiri from involvement in the 2001 incident except the

 -J 15-

2003 break-in”, it was argued that DW1 never gave such evidence in the

Court below as DW1 stated at page 235 of the Record of Appeal that: -

“ I was given a van, w ent away, but later returned to storeroom when I fo u n d
a w indow broken. I reported to Security at main gate. Mr. Phiri, S e cu rity
Guard follow ed me to the Storeroom and he called fo r Police.”

And that in Cross-examination, DW1 stated that:-

“ Erick M. Phiri is also Security Guard, I do not know if Mr. Phiri interview ed
the Plaintiff. I heard that the Plaintiff was interviewed by Security.”

It was argued that this evidence did not amount to exoneration of the

1st Respondent. Further, that the Court below failed to show why it

believed the evidence of the Respondents and rejected that o f the

Appellant when his evidence was extremely clear and that the Court below

should have explained how it had come to the findings of fact that it did,

especially that part of the Appellant’s evidence was in fact corroborated to

some extent by the Respondents own evidence. That no evidence was

called to show that it was the Appellant who broke into the Buffer Store and

that the 1st Respondent was never involved in the detention of the

Appellant on both occasions. Citing the case of Mushemi Mushemi vs

The People5, it was contended that accepting the Respondents’ evidence

was misdirection on the part of the Judge as the Appellant’s evidence was

overwhelming. In that case, it was held, inter alia, that: -

 -J 16-

“ A conviction w hich is based on findings o f fact w hich is in direct c o n flic t

with the overwhelm ing balance of the evidence, that evidence having been
glossed over, cannot be upheld.”

And that:-

“ The cre d ib ility o f a w itness cannot be assessed in isolation from th e rest

of the w itnesses whose evidence is in substantial co n flict w ith that o f the
witness. The Judgm ent of the trial C ourt faced w ith such c o n flic tin g
evidence should show on the face of it w hy a witness whose evidence has
been seriously contradicted by others is believed in preference to those
others.”

It was submitted that the Court below’s reliance on DW1’s evidence

when in fact, the record shows that there was no exoneration of the 1st

Respondent amounted to a total misdirection and hence, this Appeal

should be allowed with costs.

On the other hand, in opposing this Appeal, the learned Counsel for

the 1st and the 2nd Respondents, Mr. Nchito, also relied on the Heads of

Argument filed on behalf of the 1st and the 2nd Respondents. In response

to Ground 1 of this Appeal, it was argued that the learned trial Judge was

on firm ground as he correctly and effectively evaluated the evidence

before him and that there are no serious contradictions as the evidence of

all the witnesses was correctly recorded.

 On the evidence which the Appellant has claimed he recorded and

produced as the correct evidence, it was contended that the Appellant in

fact, was introducing new evidence which was not before the Court and

that this cannot be allowed.

In summing up the Appellant’s case, it was submitted that the

Appellant’s case against the 1st and the 2nd Respondents is that: -

“ The 1st Respondent as an employee of the 2nd Respondent engineered the

arrest of the A ppellant in two separate incidents w hich occurred in 2001
and 2003. The 1st and 2nd Respondents called three w itnesses in the court
below whose evidence is on record. DW1, Carlos Cheelo in his evidence
produced at page 235 of the Record of Appeal testified th a t he was a Store
man and in October, 2001, when he reported fo r duty, he found th a t the
lock to the store room was broken and he reported the m atter to his
supervisor w ho instructed him to report the matter to Security. DW1
testified that he reported the matter to the security guard on duty by the
name of Chama.

DW2, w ho is the 1st Respondent, testified as recorded at page 237 o f the

Record o f Appeal that he never dealt w ith the A ppellant in 2001 and that
from w hat he knew, it was Chama and security guards from G3 w h o dealt
w ith the A ppellant in 2001. The evidence of DW1 and DW2 is consistent on
the non-involvem ent of the 1st Respondent in 2001 incident.”

It was contended that the Court below made correct analysis of the

evidence when it held that DW1 exonerated the 1st Appellant from the 2001

incident as DW1 told the Court below in examination in chief and in cross-

examination that: -

“ 1. In 2001, he did not report the matter to the 1st A ppellant and the 1st
A ppellant was not involved in the investigations.

2. It is not in dispute that when the A ppellant was on duty between 30

September, 2001 and 1st October, 2001 and in June 2003, there was a
 -J 18-

break in at the Store room and the Appellant was the o n ly one
w orking near the Store room on both nights. A report was m ade to
the Police and the Police instituted investigations.”

It was submitted that the 1st and the 2nd Respondents did not commit

any wrong against the Appellant and that the Court below was in order by

finding that the 1st Respondent was not involved in the 2001 case as the

evidence of both DW1 and DW2 also disclosed this. However, the Court

below was on firm ground when it found that the 1st Respondent was just

carrying out his duties when he reported the matter to the Police in 2003

after receiving a report of the break-in at the Buffer Store. However, that

the Appellant in fact concedes that the 1st Respondent handed him over to

the Police upon concluding the internal investigation. That DW3

corroborates this piece of evidence at page 243 of the Record when he

testified that he sent a call-out to the Appellant to report to Musamba Police

Post and that the 1st Respondent took the Appellant to the Police Post.

And that he detained the Appellant because of the circumstances of the

case. Therefore, that the learned Judge was on firm ground when he found

that DW3 is the one who detained the Appellant and not the 1st Respondent

as the only role played by the 1st Respondent was to report to the Police in

accordance with his duties as a security guard.

 -J 19-

As to when this Court can interfere with the findings of fact of the trial

Court, the case of W ilson Masauso Zulu vs Avondale Housing P roject

Lim ited6was cited in which we held that: -

“ The appellate C ourt w ill only reverse findings o f fact made by a trial C o u rt
if it is satisfied that the findings in question were either perverse or m ade in
the absence o f any relevant evidence or upon a m isapprehension of fa c ts .”

Reference was also made to the case of Konkola Copper Mines

PLC vs Jacobus Keune7 in which we reiterated this position and stated

that:-

“ On the authority o f MASAUSO ZULU vs AVONDALE HOUSING PROJECT

and many other authorities, this is a proper case that this appellate C ourt
can set aside a finding o f fact as being based on a m isapprehension of
facts or that it was a finding w hich on a proper view of the evidence, no
trial Court acting correctly could reasonably make.”

It was argued that this is not a proper case for this Court to interfere

with the lower Court’s findings of facts as the learned Judge properly

analyzed the evidence before him and the findings of fact that he made

were supported by the evidence of the Respondent’s witnesses.

In response to Ground 2, it was contended that the learned trial

Judge was on firm ground when he found that the Appellant was lawfully

detained and that as such, there were no issues for him to determine.

Citing the evidence of DW1 who told the Court below that the 1st

Respondent in this matter was not involved in the investigations of the first
■

-j 20-

incident and the Appellant’s allegation that the 1st Respondent detained him

from 07:00 hours to 10:00 hours (see page 249 of the Record of Appeal), it

was argued that no evidence was given by the Appellant that during the

alleged three hours detention, he was not free to leave the premises. And

that if at all the Appellant was kept for three hours after his shift ended,

there was nothing unlawful about that as the security personnel had a duty

to conduct an investigation. As such, the Appellant cannot be said to have

been detained as he was obliged to account for his movements while he

was on duty.

It was contended that the assertion by the Appellant that he was

detained from 10:00 hours on 30th September, 2001 to 07.00 hours the

following day is not supported by any evidence and that this in fact,

contradicts his own evidence at page 226 that there had been a breakdown

at the Plant at 20:30 hours on 30 September, 2001 which he attended to

and that he handed over to the morning crew at 07:00 hours on 1st October,

2001. How could the Appellant have attended to a breakdown at 20:30

hours and hand over to the morning crew at 07.00 hours if he had been

detained by the 1st Respondent from 10.00 hours on 30th September, 2001

to 07.00 hours on 1st October, 2001?

 -J 21-

It was contended that the evidence clearly exonerated the 1st

Respondent from the 2001 incident as DW1 testified that the Security

Officer on duty in 2001 was Chama and not the 1st Respondent and that as

such, there was no way the 1st Respondent could have detained the

Appellant as he was not around at the time the theft was reported to the

security office by DW1.

In respect of the 2003 incident, it was submitted in response that the

Appellant’s evidence was that he knocked off at 07:00 hours and later that

same day, the 1st Respondent picked him up from home and informed him

that the Police were looking for him and that he followed the 1st

Respondent to the Police Station where he was handed over to DW3 who

explained to him that there had been a break-in at the Buffer Store is

corroborated by the evidence of both DW2 and DW3.

Further, that it is very clear from the evidence of the Appellant and

that of DW2 and DW3 that in 2003, the 1st Respondent only reported the

matter to the Police and handed over the Appellant to the Police because

the Appellant was the one working near the Buffer Store where there had

been a break-in and that this fact is not in dispute and that the Appellant in

cross-examination at page 228 line 2-3, conceded that the 1st Respondent

never dealt with him after handing him over to the Police. That being the
 -j 22-

case, the 1st Respondent cannot be made liable for the acts of the Police

while the Appellant was in their custody.

Therefore, that the Court below was on firm ground when it found that

the 1st Respondent did not unlawfully detain the Appellant either in 2001 or

2003. It was further contended that the law is very clear that ordinary

citizens are not responsible for the acts of the Police once a report is made

to the Police and that the Police have a duty to make up their mind whether

or not there is any merit in the complaint. Hence, the 1st Respondent

cannot be held liable for the acts of the Police.

In support of this submission, the case of Zambia Consolidated

Copper Mines vs Eddie Zulu8 was cited in which we held that: -

“ Members o f the public who happened to be com plainants cannot be

vicariously liable fo r any w rongdoing by Police in investigating or
purporting to investigate the com plaint.”

It was submitted that the 1st and 2nd Respondents cannot be liable for

any wrong doing of the 3rd and 4th Respondents. Therefore, this Appeal

should be dismissed with costs for want of merit.

In opposing this Appeal, the learned Counsel for the 3rd and the 4th

Respondents, Mrs. Mulenga, also relied on the 4th Respondent’s Heads of

Argument. Both grounds were responded to together as they both attack

 -J 23-

the evaluation of the evidence. It was submitted that the Appellant has

argued that the trial Judge did not correctly and effectively evaluate the

evidence before him and that there are serious contradictions to the extent

that the evidence of the Appellant was not correctly recorded. It was

submitted that the 3rd and the 4th Respondent’s position is that the learned

trial Judge did properly evaluate the evidence before him. That the learned

trial Judge had the opportunity to hear the evidence, see and assess the

witnesses as they testified, and that he also reviewed the documentary

evidence before him. That as such, the trial Judge had ample opportunity

to correctly and effectively evaluate the evidence and to properly record

and take the same into consideration. That the trial Judge did not fail to

address the legal issues arising from the alleged unlawful detentions and

the learned Judge made findings of fact and found that the arrests and

detentions were justifiable and that this is clearly discernible from the

analysis of the evidence at trial as recorded by the learned Judge.

It was submitted that the Appellant is merely seeking to have the

decision of the lower Court reversed. However, that the learned Judge

made factual findings in this matter upon which he rendered his Judgment

and that the case of Nkhata and 4 Others vs The Attorney General9

gives guidance on such matters as in that case it was held that: -

 -J24-

“ A trial Judge sitting alone w ithout a ju ry can only be reversed on

questions o f fact if (1) the Judge erred in accepting evidence, or (2) the
Judge erred in assessing and evaluating the evidence by ta kin g into
account som e matter w hich he should have ignored or failing to ta ke into
account som ething w hich he should have considered, o r (3) the Ju d g e did
not take proper advantage o f having seen and heard the w itnesses, (4)
external evidence demonstrates that the Judge erred in assessing the
manner and dem eanour of witnesses.”

It was submitted that the above are the conditions for the reversal of

findings of fact made by the trial Judge. Hence, the Judge’s findings

should not be disturbed as he properly drew the necessary inferences on

the facts and rendered Judgment accordingly. The case of Robson Banda

(Suing as A dm inistrator of the estate of the late Rosemary Phiri) vs

Evaristo Mulenga (sued as adm inistrator of the Estate of the late

Steven Kabamba)10 was cited in which we held that: -

“ The case was a proper one in w hich to interfere w ith the fin d in g s o f the
trial C ourt on the ground that in assessing and evaluating the evidence, the
trial Magistrate, and subsequently the appellate Judge, failed to take into
account the A ppellant’s evidence.”

It was submitted that in the current case, the trial Judge did consider

all the evidence before him and that this evidence clearly demonstrates that

the Court below took into account the pleadings of the parties and the

evidence of the Appellant and all the Respondents. The Judge then

analyzed the issues of whether the arrests were justifiable and found that

the arrests were in fact, justifiable. Therefore, that the findings of the trial
 -j 25-

Judge should be upheld and this Appeal should be dismissed with costs to

the Respondents.

We have seriously considered the two Grounds of Appeal together

with the arguments advanced in the respective Heads of Argument, the oral

submissions by the learned Counsel for the Parties and the authorities

cited. We have also considered the Judgment by the Court below. This

Appeal raises one major question. This is whether in the circumstances of

this case, the Appellant was unlawfully detained or falsely imprisoned by

the Respondents in this matter.

To ably resolve the issues raised in the two Grounds of Appeal, it is

necessary to first define what unlawful detention or false imprisonment is.

O xford’s Dictionary of Law, defines false imprisonment as:-

“ Unlawful restriction of a person's freedom o f movement, not necessarily

in a prison. Any complete deprivation o f freedom o f m ovem ent is
sufficient, so false im prisonm ent includes unlawful arrest and unlaw fully
preventing a person leaving a room or a shop. The restriction m ust be
total: it is not im prisonm ent to prevent a person proceeding in one
direction if he is free to leave in others. False im prisonm ent is a form o f
trespass to the person, so it is not necessary to prove that it has caused
actual damage. It is both a crime and a tort. Damages... can be obtained in
to rt....”

As already stated, the learned trial Judge, in this case, found that the

Appellant had not established that he was unlawfully detained on the two

occasions complained of. However, in this Appeal, the Appellant is

 • r e ­

claiming that he had adduced sufficient evidence to prove that he was

unlawfully detained on both occasions contrary to what the learned trial

Judge found and concluded.

In respect of the first incident, the Appellant’s evidence was that on

30th September, 2001, he reported for work at 12:00 hours and knocked-off

at 07:00 hours on 1st October, 2001. That as he was handing over to the

morning shift crew, the 1st Respondent called him to the Security Office

where he was detained from 07:00 hours to 10:00 hours. That after he was

released, he went home but that at 14:00 hours, the 1st Respondent came

with a police call-out and picked him and took him to Chilanga Police

Station where he was handed over to the late Nyimbiri, a Police Officer,

who detained him for 5 days from 1st October, 2001 to 5th October, 2001

when he was released without being charged.

With regard to the second detention, the Appellant’s evidence was

that on 20th June, 2003, he reported for work at 12 hours. He was

supposed to knock off at 21:30 hours but that since no relief came, he

worked up to 07:00 hours the next day after handing over to the morning

shift crew. That however, whilst at home, the 1st Respondent picked him

up and took him to Musamba Police Post where he was handed over to the

3rd Respondent whom the 1st Respondent told about the break-in at the
 -j 27-

Buffer Store and that he (the Appellant), worked near that Office and that

he kept tools near the Buffer Store. The 3rd Respondent then detained him

and only released him the following day at 14:30 hours, again without

charging him.

The sum total of the 1st and the 2nd Respondents’ evidence regarding

the first detention was that upon discovering the break in, Carlos Cheelo

(DW1), reported the matter to Security (Mr. Chana and two G3 Security

Guards). Later, the police came and when the store was opened, some

items including bronze were found stolen. DW1 stated that he did not know

if the 1st Respondent interviewed the Appellant though he heard that

Security personnel had interviewed him.

DW2 (the 1st Respondent), however, denied speaking to the

Appellant over the first incident or handling it. He stated that Inspector

Chama and a G3 Security Guard (Chikuya) handled the matter. He also

denied sending a call-out to the Appellant or taking him to Chilanga Police

Station. He said he was not aware that the Appellant had been detained by

the Police for 5 days. He could also not recall if he was on duty on 1st

October, 2001.
 -J28-

The 3rd and the 4th Respondents did not adduce any evidence on the

first detention. However, in their Defence, they admitted detaining the

Appellant on or about 1st October, 2001.

The sum total of the 1st and the 2nd Respondents’ evidence over the

second detention was that following the break-in at the 2nd Respondent’s

Buffer Store, the 1st Respondent took the Appellant to Musamba Police

Post as the police had asked to interview all the employees and the guards

who were on duty that night.

The 3rd and the 4th Respondents’ evidence was an admission that the

Appellant was detained by DW3 (the 3rd Respondent) at Musamba Police

Post from 09:30 hours on 20th June, 2003 to 14:30 hours on 21st June,

2003 and that he was detained as a suspect in the break-in and theft at the

2nd Respondent’s Office.

On the above evidence, in respect of the two incidents, the learned

trial Judge, respectively, found and held as follows:-

“ ...it is C. CHEELO who saw the break-ins w hich he later reported to his
superior. The same C. CHEELO exonerated E. M. PHIRI from involvem ent
in the 2001 incident, except the 2003 break-in. In fact, E. M. PHIRI only
heard about the 2001 break-in which was handled by INSPECTOR
CHIHANA and G3 Security Guard, CHIKUYA. Furtherm ore, there is no
confirm ation from CHILANGA POLICE STATION indicating that the Plaintiff
was detained there from 01/10/2001 to 05/10/2001 after E. M. PHIRI reported
theft o f bronze. I thus decline this P la in tiffs assertion im plicating E. M.
PHIRI fo r the unverified 2001 incident.”
 And that

“A lluding to the 2003 incident, since J. M. MASANDIKO was from afar, on

arrive, able to visib ly see the rear w indow and fro n t door of the buffer store
damaged, I regard it normal for him to have begun asking about people
w ho were on night shift. It transpired that the Plaintiff, w ith o u t the
knowledge of Management, was on night sh ift together w ith three guards
whose respective homes, J. M. MASANDIKO visited but to no avail. P rio r to
that J. M. MASANDIKO picked up the Plaintiff from his home and detained
him at Police Station to scupper him from linking w ith the three guards,
since bronze missed. I do not regard this action by J. M. MASANDIKO as
unjustifiable. Similarly, I do not blame E. M. PHIRI fo r having involved J. M.
MASANDIKO into investigation of the damaged rear w indow and fro n t door
of the buffer storeroom at the premises of 2nd Defendant, since even bronze
weighing 145 Kg missed. A t any rate, it is not E. M. PHIRI w ho picked the
P laintiff from his house on 21/06/2003 at 09.30 hours. Instead, J. M.
MASANDIKO did so on 20/06/2003 after he visited the scene and saw the
damaged w in d o w pane and door of the buffer store.

It w ould be unwise fo r E. M. PHIRI not to report to Police the damage o f rear

w indow and fro n t door o f the buffer store plus the m issing bronze w eighing
145 Kg. Failure to do so would make E. M. PHIRI a suspect. S im ilarly, it
w ould be im prudent fo r J. M. MASANDIKO to have acted indifferently, since
the P laintiff made him self a suspect for having covered the n igh t s h ift for
SHIPOPA w ith o u t alerting the Management that they swapped the shifts.

It is against this background that the P la in tiffs arrest and detention by J.

M. MASANDIKO and not by E. M. PHIRI on 20/06/2003 to 21/06/2003 at 09.00
hours is justifiable. I stress that it is J. M. MASANDIKO w ho on receipt o f
the reasonable report from E. M. PHIRI arrested the P laintiff and kept him in
Police cells. A t no time did E. M. PHIRI arrest and detain the P la intiff at
Police Station in the cells either in 2001 or in 2003 or at all.”

On the basis of the above findings by the learned trial Judge, the

Appellant as aforestated, raised two Grounds of Appeal. For convenience,

we intend to resolve the issues raised in the two Grounds of Appeal

together. This is to avoid numerous repetitions.

As can be deduced from the manner Ground 1 was crafted, it raises

three issues for determination. The first issue alleges “serious

*
-j 30-

contradictions and inconsistencies” in the manner the trial Judge analyzed

the Appellant’s evidence. The second issue is that “the evidence was not

correctly recorded” by the learned trial Judge. The third issue attacks the

trial Judge for “failure to properly evaluate evidence correctly and

effectively”.

We intend to begin with the Appellant’s contention that the learned

trial Judge did not properly record the evidence adduced in Court. We

have considered this issue and the submissions in support. We find that

the Appellant has not illustrated how the learned Judge failed to properly

record the evidence. Consequently, we find no basis at all for upholding

this argument. We, find no merit in this part of Ground 1.

With regard to the alleged contradictions and inconsistencies in the

manner the learned trial Judge analyzed the evidence, we have carefully

examined the evidence of DW1 (Cheelo) and the learned Judge’s

conclusion that DW1 (Cheelo), exonerated the 1st Respondent on the first

detention. We have come to the conclusion that DW1’s evidence did not at

all exonerate the 1st Respondent from the first incident. DW1’s evidence

was that after he discovered the break-in, he reported to his Supervisor

who advised him to report to Security which he did. And that he did not

know whether or not the 1st Respondent handled the matter. Nowhere did
 -J31-

DW1 exonerate the 1st Respondent. Further, the 1st Respondent (DW2), in

his evidence, stated that Inspector Chama and G3 Security dealt with the

first report. This suggests that the 1st Respondent was on duty on that day

or that he was aware of what happened. In their Defence, the 1st and the

2nd Respondents did not also deny the Appellant’s allegation that the 1st

Respondent is the one who detained him over the first incident. They did

not also deny the Appellant’s claim that the 1st Respondent is the one who

took him to the Police Station.

In this respect, we agree with the contention by Mr. Mundia, S. C.,

that there were contradictions and inconsistencies in the manner the trial

Judge analyzed this part of the evidence. This entitles us to interfere with

the findings of the learned trial Judge as he clearly misapprehended the

facts before him as he did not properly address his mind to the pleadings

and the evidence.

With regard to the contention by the Appellant that the learned trial

Judge did not properly and effectively evaluate the evidence, it was pointed

out that contrary to the finding by the learned Judge that the Appellant just

made arrangements with his friends to work overtime, the Appellant’s

evidence was that he had approval from the Shift Manager.

 -J32-

ln response, the 1st and the 2nd Respondents’ argument was that the

learned trial Judge was on firm ground as he correctly and effectively

evaluated the evidence before him. And that DW1 and DW2’s evidence

was consistent on the non-involvement of the 1st Respondent in the 2001

incident.

The response by the 3rd and 4th Respondents was that the learned

Judge properly evaluated the evidence before him as he saw, heard and

assessed the witnesses and reviewed documentary evidence as well as

Pleadings.

We have considered the above submissions. Our firm view is that

the question for determination is whether or not the Appellant

“conveniently” made arrangements with his friends to remain on duty when

he should have knocked-off at 21:30 hours. The Appellant’s evidence was

however, that whilst on duty on that night, at about 19:00 hours, his

Supervisor, Mr. Mweenda, came and requested him not to knock-off at

21:30 hours as his relief would not come. It was then that the Appellant

requested to be allowed to go home to have his meal and that on his

return, he learnt that whilst he was away, there had been a break-in at the

Plant. And that he remained on duty until 07:00 hours when he handed

over to the morning shift crew. And that it was after this that the 1st
 -J33-

Respondent called him to the Security Office where he was detained up to

10:00 hours when he was released.

In view of the above evidence, our firm view is that had the learned

Judge properly evaluated the evidence before him, he could have come to

the conclusion that the Appellant was requested to remain on duty by his

Supervisor, Mr. Mweenda, and that the Appellant did not arrange with his

colleagues to “conveniently” remain on duty. Further, the Respondents did

not at all seriously challenge or dispute this piece of evidence.

We therefore, agree with the submission by Mr. Mundia, S.C., that

the learned trial Judge trivialized the issues before him as he glossed over

the evidence on the question whether or not the Appellant had

“conveniently ” made arrangements to remain on duty when the Appellant’s

explanation was that he was in fact, requested to remain on duty by his

Supervisor, Mr. Mweenda. The learned Judge however, stated as follows:-

“ lt w ould be unwise for E. M. Phiri not to report to Police the “ damage of

rear w in d o w and fro n t door of the Buffer store plus the m issing bronze
w eighing 145 kg, failure to do so would make E. M. Phiri a suspect.
S im ilarly it w ould be im prudent fo r J. M. Masandiko to have acted
indifferently, since the Plaintiff made him self a suspect fo r having covered
the n ig h t sh ift fo r Shipopa w ith o u t alerting the Management th a t they
swapped the s h ifts.”
 -J34-

The glossing over of issues and evidence is further confirmed by

what the learned Judge found when he stated that:-

“ A t no time did E. M. Phiri arrest or detain the P laintiff at Police S ta tion in

the cells either in 2001 or 2003 or at all.”

E.M. Phiri, who is the 1st Respondent would surely not have detained

the Appellant at the Police Station in cells under both incidents as he was

firstly, not a police officer and secondly, the Appellant’s evidence was that

E.M. Phiri, is the one who took him to Chilanga Police Station and

Musamba Police Post in the 2001 and 2003 incidents, respectively.

Therefore, this is a proper case in which we, as an appellate Court,

can interfere with the findings of fact made by the trial court as the

Appellant has satisfied the principles for setting aside findings of fact made

by the trial Court as set out in a plethora of authorities including the ones

cited in this case.

The question that follows is, on the evidence adduced in the Court

below, did the Appellant establish on the balance of probabilities that he

was unlawfully detained or falsely imprisoned on both occasions by the

Respondents or their agents?

 -J35-

We have above defined what false imprisonment is. On what

constitutes false imprisonment, the learned authors of Clerk and Lindsell

on Torts in paragraph 12/17 put this as follows:-

“4. FALSE IMPRISONMENT

(a) What C onstitutes a False Im prisonm ent

.... a false im prisonm ent is complete deprivation of liberty fo r any

time, however, short, w ith o u t lawful cause. Im prisonm ent is no
other thing but the restraint of a man’s liberty, whether it be in the
open field, or in the stocks, or in the cage in the streets o r in a
m an’s own house, as well as in the comm on gaols; and in all the
places the party so restrained is said to be a prisoner so long as
he hath not his liberty freely to go at all tim es to all places w ither
he w ill w ith o u t bail or mainprise or otherwise. The p riso n e r may
be confined w ithin a definite space by being put under lo ck and
key or his movements may sim ply be constrained at the w ill of
another...”

In terms of detention by private persons, the learned authors of

Halsbury’s Laws of England, have stated that: -

“ A private person is liable if he unlaw fully detains another or if he gives

him in charge to a Police Officer w ho thereupon arrests him or if he causes
Police O fficer to arrest or detain the other or if he participates in the arrest
or detention. A person may participate in any arrest even though he acts
w ith no w rong motive or complete ignorance on the unlaw ful nature of the
unrest.”

As to what is required of a person who alleges that he was unlawfully

detained or imprisoned, Baron, J., as he then was, in Claude Samuel

Gavnor vs Cyril Robert Cowley3, put it thus:-

 -J36-

“ ln an action fo r false im prisonm ent it is necessary for the p laintiff to p ro ve

nothing but the im prisonm ent itself; it is then fo r the defendant to
discharge the onus o f justifying it.”

We have above outlined the evidence given by the Appellant in the

t

Court below. On this evidence and on the authorities cited above, we are

satisfied that the Appellant did establish on the balance of probabilities that

on both occasions, he was unlawfully detained by the Respondents. In

respect of the first detention, the Appellant’s evidence shows that he was

detained for 3 hours at the 2nd Respondent’s Offices and that after he was

released, he was again picked up by the 2nd Respondent’s employees or

agents who conveyed him to Chilanga Police Station where an employee

or agent of the 4th Respondent, (the late Nyimbiri), detained him in cells for

5 days.

In respect of the second incident, he was again unlawfully detained

by the 2nd Respondent’s employees or agents for the purpose of conveying

him to Musamba Police Post where again, an employee or agent of the 4th

Respondent (the 3rd Respondent), detained him in cells from 09:30 hours

on 20th June, 2003 to 14:30 hours on 21st June, 2003 when he was

released, again without charge.

 -J 37-

We, are, therefore, satisfied that had the learned trial Judge properly

and effectively analyzed and/or evaluated the evidence before him and

properly addressed his mind on what constitutes unlawful imprisonment or

detention, he could have come to the conclusion that the Appellant had

proved that he was unlawfully detained or imprisoned by the Respondents

on the dates alleged.

In this respect, we reiterate our position in Nkonqolo Farms Lim ited

vs Zambia National Commercial Bank Limited, Kent Choice Lim ited (In

Receivership) Charles Haruperi4 where we held, inter alia, that:-

“(1) As a general rule an appellate court rarely interferes w ith the fin d in g
of facts by the lower court, unless such findings are not supported
by evidence on record or the lower court erred in assessing and
evaluating the evidence by taking into account matters w hich ought
not to have been taken into account or failed to take into account
some matters w hich ought to have been taken into a cco u n t or
mistakenly, the lower court failed to take advantage o f having seen
and heard the witnesses and this is obvious from the record or the
established evidence demonstrates that the lower court erred in
assessing the evidence.”

Having found that the Appellant did establish that he was unlawfully

detained on both occasions, the question that follows is: did the

Respondents justify the imprisonment? This question arises out of the

legal requirement that a defendant may justify the detention. The cases of

Daniel Chizoka Mbandanqoma vs The Attorney-General13 and Gertrude

 -J 38-

Munyonsi and The Attorney-General vs. Catherine Nqalabeka14

illustrate this position as the Courts respectively, stated and held that:-

“(i) In order to ju s tify the arrest o f the p laintiff the defendant m u st show
that at the tim e of the arrest, the arresting officer had reasonable
suspicion that the plaintiff had com m itted the offence w ith w h ic h he
was charged.

(ii) The arrest o f the plaintiff was unlawful. The police can only arrest
persons fo r offences and have no power to arrest anyone in o rd e r to
make inquiries about him.

(iii) It is im proper fo r the police to detain persons pending fu rth e r

investigations w ith ou t bringing them before court as so o n as
practicable, b u t it is equally im proper to require persons released on
bond to present themselves at the police station fo r the same
purpose.” (underlining ours).”

“ (ii) The Police can only arrest for offences under the law; Police have no
power to arrest people fo r the purposes o f making inquiries.”

In Joyce Banda vs Attorney-General12, it was, inter alia, held that:-

“(iii) In an action fo r false im prisonment, if the defendant adm its the

im prisonm ent the onus is on him to ju s tify it; if he fails to establish a
legal ju stifica tio n fo r the deprivation of liberty he fails on the m erits.”

The authorities cited above clearly show that mere “suspicion” without

investigation cannot justify the detention of any person. It appears to us

that the Appellant was being targeted by the 2nd Respondent’s employees

for reasons best known only to themselves as mere working near a place

where a break-in and theft occurred cannot constitute reasonable suspicion

of the Appellant’s involvement in the offences.

 -J39-

Further, the 2nd Respondent did not at all explain why its employees

or agents kept the Appellant in detention at the 2nd Respondent’s offices for

three hours without taking him to the Police Station and then release him

and only to pick him up a few hours later and take him to the Police Station.

The alleged claim of “facilitating investigations” was only raised in the

Heads of Argument by the 1st and the 2nd Respondents and not in their

pleadings or during trial. So, this flies directly in the teeth of our decision in

Zambia Revenue A uthority vs Hitech Trading Company L im ite d15, in

which we stated that arguments and submissions at the bar, spirited as

they may be, cannot be a substitute for sworn evidence.

We do not also accept the 1st and the 2nd Respondents’ assertion that

the Appellant was not in total confinement during the three hour period he

was under their custody as there is no evidence to show that he was free to

leave during that period.

Further, the authorities cited above, show that detaining a person for

the purpose of taking or conveying him/her to the police, where there is no

evidence that the person had committed an offence, constitutes false

imprisonment.
 -J40-

The 4th Respondent did not at all explain why its agent or employee,

the late Nyimbiri, detained the Appellant in cells for five (5) days only to

release him without charge.

The explanation by DW3 (the 3rd Respondent), that he detained the

Appellant so that he could follow up on the security guards who were on

duty when the theft occurred is in fact, confirmation that DW3 detained the

Appellant without first investigating the case or forming any reasonable

suspicion that the Appellant could have been involved in the break-in and

theft as police officers have no power to detain anyone to facilitate

/

inquiries.

We have already dealt with most of the issues raised in Ground two

suffice to say that we agree with the submission by the learned State

Counsel for the Appellant that the learned trial Judge exhibited a casual

approach to the Appellant’s evidence as it was the duty of the 4th

Respondent to rebut the Appellant’s claim that he was detained for 5 days

by the late Nyimbiri. This piece of evidence could have been easily

rebutted by production of the Occurrence Book for that period, which the

police keep in their custody instead of erroneously holding that there was

no confirmation from Chilanga Police Station that the Appellant was

detained there for 5 days.

I

-J41-

Further, once the learned Judge found that the 3rd and the 4th

Respondents admitted detaining the Appellant in June, 2003, what was left

for the learned trial Judge to do was to make a finding whether or not the

Respondents had justified the detention.

It is therefore, our conclusion that the Respondents did not discharge

the onus of justifying the detention of the Appellant on the two occasions

complained of.

We are satisfied that there is merit in both Grounds 1 and 2 o f this

Appeal. We uphold them. We set aside the findings by the learned Judge

as he clearly misapprehended the law and the facts.

In terms of liability, we reiterate that it is a settled principle of law that

an employer is vicariously liable for the torts of his employees or agents

committed in the course of performing their duties. The evidence on record

n rj

shows that on both occasions, the employees or agents of the 2 and the

4th Respondents detained the Appellant in the course of their employment.

Therefore, the 2nd and the 4th Respondents, as employers of the 1st, the 3rd

Respondents and the late Nyimbiri, are, respectively, vicariously liable for

the torts of their employees or agents. Authorities in this respect in our

jurisdiction abound. So, we need not belabour this point.

5

-J42-

ln terms of damages to be awarded, we note that this issue was not

tackled in the Court below. We, therefore, refer the matter to the Deputy

Registrar for assessment. We, further, direct and order that the damages

to be awarded be apportioned between the 2nd and the 4th Respondents by

taking into account the period(s) the Appellant was under the custody of

each of the said Respondents’ servants or agents.

Both Grounds 1 and 2 of this Appeal having succeeded, this Appeal

is upheld. Costs in this Court and in the Court below to be taxed in default

of agreement, are for the Appellant.

H. Chibomba
SUPREME COURT JUDGE