ALWIS v. AHANGAMA

023-SLLR-SLLR-2000-V-3-ALWIS-v.-AHANGAMA.pdf


ALW1S
y.AHANGAMA
SUPREME COURTFERNANDO. J.
GUNASEKERA, J. ANDISMAIL. J.
SC APPEAL NO. 54/98CA APPEAL NO. 618/88(F)
DC COLOMBO NO. 85983/MFEBRUARY 14™. 15™. 2000MARCH 29™. 2000
Actio injurianim – Roman Dutch Law – False complaint of theft of goods -Arrest of plaintiff – Discharge by the Magistrate, without prosecution -Ingredients of actio iryuriarum.
The defendant was an engineer attached to the Ceylon Electricity Board("CEB"). In 1978 the CEB imported 18 crates of rotor core plates ("plates”)for use in the construction of Bowatenna power plant. 32 plates in crate“F-106" were damaged while the rest (over 150 in number) wereundamaged. The Insurance Corporation of Sri Lanka ("ICSL") agreed tomeet the claim in respect of the damaged plates. Thereafter oneMuthuarachchi, the storekeeper in charge of the CEB stores deliveredthe entire crate “F-106" to the ICSL. Consequently, the undamagedplates were not retained by the CEB and the entire crate was sold by theICSL after calling for tenders. The plaintiff purchased it through oneBerty Paul and brought it to his brother's premises adjoining his ownpremises at Grandpass. He tried to sell the plates, but was unsuccessful.Accordingly, they continued to remain where they were till 02. 10. 80.
In his evidence in chief the defendant said that he gave instructions toMuthuarachchi to separate the damaged plates. Muthuarachchi deniedreceiving any such instructions. In cross-examination, the defendantadmitted that the crate had been in his charge and that it was on hisinstructions that the crate had been delivered to the ICSL.
On 02. 10. 80. the defendant made a complaint to the police that crate“F 106" was missing; he learnt that the ICSL had auctioned it to one BertyPaul; that the plates numbering 186 were in the custody of the personliving in No. 50/16 and stored at the adjoining premises No. 49/16 DeVos Lane, Grandpass and that the ICSL should have taken over and sold
226
Sri Lanka Law Reports
12000) 3 Sri LR.
only the 32 damaged plates. The defendant requested the police toinvestigate it and assist in recovering the plates. Thereafter thedefendant accompanied the police to the scene and identified the platesas belonging to and stolen from the CEB. In cross-examination, thedefendant admitted that in accordance with the notes of investigationmade by the police he had told the police that the plates had been stolenfrom the CEB and made that complaint against the plaintiff without anyfoundation. The same night the defendant entered the plaintiff s premiseswith labourers and police officers and removed the entire stock of platesincluding the damaged ones.
Thereafter the plaintiff was taken into custody by the police andproduced before a Magistrate on 05. 10. 80 on a “B" report alleging theftof plates. The Magistrate released him on bail and directed him to appearin court on 22. 10. 80. On 06. 10. 80, the defendant made a secondstatement to the police withdrawing his earlier allegation of theft. He saidthat the object of his complaint to the police on 02. 10. 80 was to obtainpolice assistance to recover the plates so urgently needed for theBowatenna project. Notwithstanding the withdrawal of the allegation oftheft on 06. 10. 80, the plaintiff was discharged by the Magistrate onlyon 07. 01. 81.
Held :
In the absence of a prosecution, the Court of Appeal erred in grantingrelief to the plaintiff on the basis that the plaintiff s cause of action wasmalicious prosecution. But the plaintiffs action was maintainable beingan action in respect of an injuria allegedly committed by the defendantby (a) maliciously, and (b) without reasonable and probable cause (c)making a defamatory complaint (of theft) against the plaintiff, (d) whichresulted in legal proceedings against the plaintiff (namely, his arrest andproduction in the Magistrate's Court. For the Roman Dutch Law actionfor injury it is sufficient if the defendant set the authorities in motion tothe detriment of the plaintiff.
Per Fernando, J.
“actio injuriarum is much wider than the English Law action for
malicious prosecution"
The allegation of theft was to the defendant's knowledge false.
The defendant had no reasonable or probable cause for alleging thatthe plates had been stolen.
sc
Alwis v. Ahangama (Fernando, J.) ■
227
Per Fernando, J.
“The fact that the defendant’s motive was to recover property belongingto the CEB which was urgently needed for a public purpose makes nodifference; that would have been good reason to ask the police for helpto trace and recover the missing goods, but not to allege that they hadbeen stolen.”
The plaintiff established malice.
Per Fernando, J.
“he made a false allegation of theft, which he could not reasonably
have believed; and which was not merely reckless, but which he knew tobe false. Further he must have known that an allegation of theft of CEBproperty worth Rs. 500,000 was very likely to result in an arrest. Therewas thus animus injuriandL"
The sum of Rs. 500,000 awarded by the Court of Appeal as damageswas quite excessive. Even though the allegation of theft was improper,the circumstances are consistent with an excess of zeal, undeserving ofsuch severe strictures. The plaintiff would be sufficiently compensatedby an award of Rs. 100,000, with legal interest from the date of thejudgement of the Supreme Court.
Cases referred to :
Dissanayake v. Gunaratne (1938) 11 CLW 12
Dionis v. Silva (1913) 16 NLR 154
Kotelawala v. Perera (1936) 39 NLR 10
Saravanarnutlu v. Kanagasabi (1942) 43 NLR 357
Haihurusinghe v. Kudaduraya (1954) 56 NLR 60
Collins v. Minnaar (1931) CPD 12. 14
Podi Singho v. Appuhamy (1904) 3 Bal 145
Wyegunatilleke v. Joni Appu (1920) 22 NLR 231
Chttty v. Peries (1940) 41 NLR 145
Meedin v. Mohidin (1897) 3 NLR 27
APPEAL from the judgement of the Court of Appeal.
R.K.W. Goonesekera with Ms. Shirani Jayatilake for the defendant-appellant.
L.C. Seneviratne, P.C. with H.V. Siluge for the plaintiff-respondent.
Cur. adv. vult.
228
Sri Lanka Law Reports
1200013 Sri LR.
June 21, 2000.
FERNANDO, J.The Plaintiff-Appellant-Respondent (the “PlaintifF) is anAttomey-at-Law, a Justice of the Peace, and additional CityCoroner of Colombo. He instituted this action against theDefendant-Respondent-Appellant (the “Defendant”), anEngineer employed by the Ceylon Electricity Board (“CEB").
The issues framed at the trial (and the learned DistrictJudge’s answers thereto) were as follows :
Did the Defendant on or about 02. 10. 1980make a complaint to the Grandpass Police thatthe Plaintiff had committed theft of rotor coreplates as set out in paragraph 5 of the plaint? NO
(a) Was the Plaintiff taken into custody on 05. 10.
80 and produced before the Magistrate on05. 10. 80?YES
Was the Plaintiff so produced as one against
whom there was a charge of theft of the saidrotor core plates?YES
Did the Magistrate make order that the Plaintiff
should appear in court on 22. 10.1980?YES
Did the Magistrate discharge the Plaintiff on
01. 1981?YES
Was the said complaint made maliciously, and
without reasonable and probablecause?NO
Did the Plaintiff by reason of the said complaint
suffer in his reputation and credit as set out inparagraph 7 of the plaint?YES
If the above issues are answered in favour of thePlaintiff what damages is the Plaintiff entitledto?
DOES NOT ARISE IN VIEW OFANSWERS TO (1) AND (3)
sc
Alivis u. Ahangama (Fernando, J.) .
229
In paragraph (7) of the plaint, the Plaintiff had averredthat the Defendant’s complaint to the Police was grosslydefamatory of him and that he had suffered in his reputationand credit; that he had been produced in the Magistrate’sCourt as one against whom a charge of theft would be made;and that he had thereby suffered damages which he assessedat Rs 500,000/-.
In view of his answers to issues (1) and (3), the trial Judgedismissed the action.
On appeal, the Court of Appeal reversed those findings,and awarded the Plaintiff damages in the full amount of Rs.500,000 claimed. This Court granted the Defendant specialleave to appeal on the following questions:
“ 1. Whether the Court of Appeal has misdirected itselfwhen it held that ‘Malice, gross recklessness and lack ofreasonable care has clearly been established’ in the light of the
evidence. 2
2. Were the requisite ingredients to prove case ofMalicious prosecution/arrest established.”
THE FACTS
In 1978 the CEB imported 18 crates of “rotor core plates”(which I shall refer to as “plates”). These were intended for useby a foreign contractor (“Sumitomo”) engaged in constructingthe Bowatenne power plant for the CEB. One crate, identifiedas “F-106”, was found to be damaged. A survey made upon aninsurance claim revealed that 32 plates were damaged whilethe rest (over 150 in number) were undamaged. The InsuranceCorporation of Sri Lanka (“ICSL”) agreed to meet the claim inrespect of the damaged plates. The crate, with the damaged aswell as the undamaged plates, was then transferred from theCEB’s stores at the Kelanitissa power station to its stores at thePettah power station. There were two sets of keys to the stores:one with the Defendant, the other with the storekeeper.
230
Sri Lanka Law Reports
1200013 Sri L.R.
In his evidence-in-chief, the Defendant claimed that hehad repeatedly instructed the then storekeeper, Wijerama, toseparate the damaged plates, so that they could be handedover to the ICSL; Wijerama failed to do so. He gave the sameinstructions, again orally, to Wijerama’s successor,Muthuarachchi. He, too, failed to comply. Nevertheless theDefendant took no action either to put his order into writing orto ensure compliance. Called by the Plaintiff, Muthuarachchidenied receiving any such instructions; and testified that hehad no authority to open the crate, and that the Defendant hadtold him to deliver the entire crate (which weighed about fivetons) to the ICSL. I must note that the Defendant did notexplain how Muthuarachchi could reasonably have beenexpected to determine which plates were damaged and whichwere not.
However, in cross-examination the Defendant stated thatthe crate had been in his charge and that it was on bisinstructions that the crate had been delivered to the ICSL.
It is not disputed that on 24. 01. 79 the crate “F-106” wasdelivered by Muthuarachchi to a representative of the ICSL.
In April or May 1979 the ICSL called for tenders for thepurchase of that crate. The crate had not been opened in thePlaintiffs presence, and although he knew next to nothingabout its contents, on the advice of a friend named Berty Paulhe submitted a bid of Rs. 837 which was accepted. It was onlyabout six months later, after the ICSL had sent him severalreminders, that the Plaintiff removed the crate to his brother’spremises No. 49/16 De Vos Lane, Grandpass, which adjoinedhis own premises No. 50/16. The Plaintiff tried to sell theplates, but was unsuccessful. Accordingly, they continued toremain where they were till 02. 10. 80.
On the evening of 02. 10. 80 the Defendant made acomplaint to the Grandpass Police, which may be summarizedas follows. Three days before, a Sumitomo officer had found
sc
Alwis v. Ahangamn (Fernando. J.)
231
that crate “F-106” was missing; the Defendant consultedother Sumitomo officers, who (with the help of ICSL officers)ascertained that the crate has been auctioned to one BertyPaul; he also came to know that the plates were being storedat 49/16 De Vos Lane, Grandpass, and were in the custody ofthe persons living in the adjoining premises (No 50/16); andthat he visited those premises and found that there were 32thin plates and 154 thick plates. He stated that the ICSLshould have taken over, and sold, only the 32 damaged plates,and requested the Police to make a thorough investigation toascertain how the undamaged plates came to be auctioned. Hestressed that the construction of the generator of the powerstation was held up due to the lack of those plates, and thatdelay in recovering them would not only cause expense to theGovernment but would compel the CEB to resort to powercuts. It was “very necessary that the Police should takeimmediate action to seize these (plates) and release them to theCEB without any further delay”.
The Defendant’s evidence in Court was substantially tothe same effect. I must note in particular that he admitted that,even before he made that complaint, he had known that theICSL had sold the plates by public auction.
In that complaint, the Defendant made no specificallegation of theft against the Plaintiff or anyone else – indeed,the Plaintiff was not even mentioned by name. However,Mr. Seneviratne stressed the fact that the complaint washeaded “Theft of rotor core plates val: Rs. 500,000”. While hesubmitted that this showed that the Defendant had made anallegation of theft to the Police, Mr. Goonesekera submittedthat this was a caption inserted by the Police, for whichresponsibility could not be cast on the Defendant.
But what happened thereafter puts a very differentcomplexion on the matter. The Police immediately went toDe Vos Lane, accompanied by the Defendant. Thecontemporaneous notes made by the Police record that they
232
Sri Lanka Law Reports
120001 3 Sri L.R.
went in search of the stolen plates; that the Defendant pointedout the plates which were close to No 50/16: that theymade inquiries and learnt that the owner of No. 50/16 wasEdward Ahangama, who was not in at that time; and that theDefendant identified the plates as belonging to and stolen fromthe CEB.
It is not necessary for me to consider either the accuracyof those notes, as to what was said or done at the scene, or theiradmissibility or evidentiary value – for the reason that, whenconfronted with those notes in cross – examination, theDefendant admitted that he told the Police that the plates hadbeen stolen from the CEB’s Pettah stores. He further acceptedthat he had made this complaint against the Plaintiff withoutany foundation, simply because he had not given permissionto anyone to remove the (undamaged) plates from the stores.
The Plaintiff testified that, in response to a Police message,he came to the Police station that night. While he was there theDefendant came, and told the investigating Police officer – inthe Plaintiffs presence – that the plates were stolen and werein the Plaintiff s possession. After he was questioned that nighthe was released on Police bail.
At about mid-night, the Defendant entered the Plaintiffspremises with labourers and four Police officers, and removedthe entire stock of plates, including the damaged ones.
The Plaintiff testified that on 04. 10. 80 he was asked tocome to the Police station the following day at 10.00 a.m.; thathe did so, and was not allowed to leave the premises; that hehad to remain standing for a long period, and was ultimatelyallowed to sit on a bench; and that he could not even have hislunch. He was kept there till 7.00 p.m., and then produced atthe acting Magistrate’s house, on a “B” report alleging theft.He was released on bail, and directed to appear in Court on22. 10. 80; and (notwithstanding the withdrawal of theallegation of theft by the Defendant, on 06. 10. 80) dischargedonly on 07. 01. 81.
sc
Alwis v. Ahangama (Fernando, J.)
233
Before making his complaint on 02. 10. 80 the Defendanthad made no attempt to verify from Muthuarachchi whathad happened to the crate “F-106". Muthuarachchi wasthen working in Minneriya. The Defendant summoned him toColombo, and questioned him on the 4th or the 5th. Thereafter,on 06. 10. 80, the Defendant made another statement: thatwhen he had made his original complaint about the missingcrate “F-106", he had not had the opportunity of meetingMuthuarachchi: that by 02. 10. 80 he had learnt that thePlaintiff was in possession of the plates; that as a public officerand having regard to his responsibility in the matter, he hadmade that complaint to the Police; that his object was to obtainPolice assistance to recover the plates so urgently needed forthe Bowatenne project; and that after questioningMuthuarachchi he learnt that Muthuarachchi had deliveredthe entire crate to the ICSL. He therefore withdrew his earlierallegation of theft and stated that he did not want any furtheraction thereon. In cross-examination the Defendant admittedthis statement and the fact that he had withdrawn his previousallegation of theft.
THE ISSUESAt the hearing of the appeal, the following issues arosefrom the submissions made by Mr. Goonesekera on behalf ofthe Defendant:
Was the cause of action pleaded in the plaint for maliciousprosecution? If so, should that action have been dismissedbecause in fact there had been no prosecution?
If, however, the Plaintiff s cause of action was for maliciousarrest (or some other similar injuria), had the Plaintifffailed to establish :
that the Defendant had made a complaint of theftagainst the Plaintiff, and
malice and the absence of reasonable and probablecause?
234
Sri Lanka Law Reports
1200013 Sri L.R.
Was the award of damages, by the Court of Appeal, ina sum of Rs. 500,000 unreasonable, arbitrary andunsupported by the evidence?
MALICIOUS PROSECUTIONMr. Goonesekera contended that the Court of Appealhad expressly acknowledged that the Plaintiff was suing formalicious prosecution, citing the following observations:
“At this appeal the [Defendant] admitted the existence ofa prosecution and the termination of proceedings infavour of the [Plaintiff]. Therefore the only issue that needbe examined is whether the [Defendant] in so initiating theprosecution against the [Plaintiff] acted maliciously andwithout reasonable cause.” [emphasis added]
It is a fact – conceded by Mr. Seneviratne, PC, whoappeared for the Plaintiff – that there had been no prosecution.Mr. Goonesekera was correct in submitting that the Court ofAppeal had plainly erred in concluding that there had been aprosecution against the Plaintiff. Because there had been noprosecution, he argued, the action must necessarily fail.He cited five decisions: Dissanayake v. Gunaratne,111: Dionisv. Silva/21; Kotelawala v. Perera,m Sarauanamuftu v.Kanagasabai/41 and Hathurusinghe v. Kudaduraya,151. (Healso urged that other ingredients of malicious prosecution hadnot been established, but it is not necessary to consider thatcontention in view of my conclusion that this was not a caseof malicious prosecution.)
Those decisions Clearly establish that if the cause ofaction as set out in the plaint is for malicious prosecution, andnothing else, then the plaintiff s action must be dismissed if heis unable to prove a prosecution. However, this case is entirelydifferent. The plaint did not set out a cause of action based onmalicious prosecution: and nowhere did it mention or evenimply a prosecution. The cause of action was that the Plaintiff
sc
Alwis v. Ahangama (Fernando. J.)
235
had been taken into custody and produced before theMagistrate as one against whom a charge of theft would bemade; and, consistently, the Plaintiffs issues, on which thecase was tried, were based on that arrest and production inCourt – not on any prosecution.
In his oral submissions Mr. Goonesekera raised a doubtas to whether such an action was maintainable. It wassuggested that the wrong is confined to prosecutions.
Mckerron (Law of Delict, 6th ed, p 224) describes onecategory of the wrongs for which the actio iryuriarum providesa remedy as “ABUSE OF LEGAL PROCEDURE". Under thathead, he deals first with “Malicious Prosecution and otherMalicious Proceedings”:
“Every person has a right to set the law in motion, but aperson who institutes legal proceedings against anothermaliciously and without reasonable and probable causeabuses that right and commits an actionable wrong.Although, as is pointed out by de Villiers CJ in Hart v.Cohen, the rule is directly traceable to the influence ofEnglish law, it has its origin in principles which arecommon to our law and the law of England.
The chief classes of proceedings to which the rule appliesare: (1) malicious criminal prosecutions; (2) maliciousarrest; (3) malicious execution against property;
malicious insolvency and liquidation proceedings;
malicious civil actions.” (emphasis added].
That statement of the law confirms that the wrong is notconfined to prosecutions, but extends to all "proceedings": andthe inclusion of malicious arrest under the head of “Abuse ofLegal Procedure" demonstrates that an act may amount to aninjuria even though no court “proceedings” have commencedor are in contemplation.
236
Sri Lanka Law Reports
1200013 Sri LR.
Attempts to confine the wrong to malicious prosecution asunderstood in the English Law have been rejected both inSouth Africa and in Sri Lanka. Watermeyer, J. said in Collinsv. MinnaarJ61:
“Now, whatever the English law may be about maliciousprosecution, we must be guided by the principles of theRoman-Dutch law, and in Roman-Dutch law what iscomplained of is an injury . .
In Podi Singho v. Appuhamy,171 de Sampayo. AJ, said:
“Besides, the Roman-Dutch action for injury isquite different from the English action for maliciousprosecution, and I think it is sufficient if the defendant setthe authorities in motion to the detriment of the plaintiff."
Wyegunatilleke v. JoniAppu,181 was a case in which the trialJudge had called the action one for malicious prosecution, andregarded it as identical with the action of that name as knownto the English law. Schneider, A.J, observed:
“… the correct view of our law is that expressed by Bonser,CJ, in Haide Hangidia v. Abraham Hamy [an unreported1898 decision] . . . :
He then brought an action against the defendant inthe form of an English action for malicious prosecution.I asked what authority there is for such an action, andnone was produced. It is clear that an action on this casefor injury lies. That is a form of action free from thetechnicalities of the English form of action.
If the present case be regarded as identical with theEnglish law action of that name it is bound to fail, forin the circumstances the defendant cannot be said tohave prosecuted the plaintiff. The defendant did no more,than give information to the police, and the police after
sc
Alwis v. Ahangama (Fernando, J.)
237
investigation prosecuted. In these circumstances it hadbeen held that the defendant not being the prosecutor noaction for malicious prosecution lay against him . . .
The actio injuriarum of the Roman-Dutch law is muchwider in its scope than the action for maliciousprosecution known to the English law. It lies whenever aperson does an act dolo malo to the detriment of another.The act of the defendant in this action in maliciously andfalsely stating that the plaintiff was at the scene of theaffray so that the plaintiff was charged by the police wouldentitle the plaintiff to maintain this action.”
(However, that action failed for another reason. Thedefendant gave information to the police, not voluntarily,but in the course of a police investigation, at which he wasunder a legal duty to disclose what he knew. It was heldthat such a statement, even if false, was privileged andthat an action for damages did not lie. That decision wascited with approval in Kotelawala v. PererafSupraJ)
There are other decisions too which amply justify the viewthat the actio injuriarum is much wider than the English lawaction for malicious prosecution.
In Chitty v. Peries,191 the defendant made a definite chargeof theft against the plaintiff, whereupon the Police arrestedhim. It was held that the defendant had instigated the arrest,and the plaintiff was awarded damages for malicious arrest.
Meedin v. Mohidin,"01 was a case which arose from a theftat the defendant’s house. The plaintiffs house was searchedunder a search warrant issued upon the defendant’s affidavitthat he had been credibly informed that the stolen goods werein the plaintiffs house; he did not allege that the plaintiff wasthe receiver or retainer of his stolen property. The plaintiffsaction was regarded as being for an injuria: it failed, but onlybecause there was no proof that the defendant had actedmaliciously.
238
Sri Lanka Law Reports
12000) 3 Sri L.R.
I therefore hold that the Plaintiffs action wasmaintainable, being an action in respect of an injuriaallegedly committed by the Defendant, by (a) maliciously, and(b) without reasonable and probable cause, (c) making adefamatory complaint (of theft) against the Plaintiff, (d) whichresulted in legal proceedings against the Plaintiff (namely, hisarrest and production in the Magistrate’s Court).
2(a) FALSE COMPLAINT OF THEFTMr. Goonesekera relied greatly on the fact that thecomplaint made by the Defendant on 02. 10.80 did not containany express allegation of theft, and did not mention thePlaintiff by name. I will ignore the caption “Theft of rotor coreplates val: Rs. 500,000”, because that was probably insertedby the Police; and even the Plaintiffs evidence that theDefendant made an allegation of theft later that night, becausethat was not put to or admitted by the Defendant.
However, the Defendant’s own evidence and conduct quiteclearly establish that he did make such an allegation at sometime on 02. 10. 80. First, he admitted the correctness of thePolice notes, made soon after that complaint, that he hadpointed out the plates which were lying near the Plaintiffspremises No. 50/16, and had identified them as belonging toand stolen from the CEB. Second, the fact that later heexpressly withdrew the allegation of theft leads irresistibly tothe conclusion that he had previously alleged theft.
That allegation of theft was, to the Defendant’s knowledge,false. He knew very well, before he made his first complaint,that the ICSL had sold crate “F-106” by public auction, andthat that was how the Plaintiff had obtained possession of theplates.
Issue No. (1) should therefore have been answered inthe affirmative. There is no dispute that it was the Defendant’scomplaint that “set the law in motion” resulting in the
sc
Alwis v. Ahangama (Fernando, J.)
239
Plaintiffs arrest on 05. 10. 80 and his subsequent productionin Court.
2(b) MALICE AND ABSENCE OF REASONABLE ANDPROBABLE CAUSEMr. Goonesekera contended that the Court of Appeal haderred in holding (contrary to the finding of the trial Judge) thatthe Defendant had acted maliciously and without reasonableand probable cause.
I will consider first whether there was reasonable andprobable cause for the Defendant’s allegation that the plateshad been stolen. As already noted, he knew that the ICSL hadsold the entire crate by public auction, and that the Plaintiffwas the purchaser.
If there had been any impropriety or lapse, that could onlyhave occurred at the stage of delivery by Muthuarachchi to theICSL. The Defendant’s evidence-in-chief that he had askedboth storekeepers to separate the damaged plates, and deliveronly those to the ICSL is, firstly, improbable. How couldthe storekeepers (particularly Muthuarachchi, who becamestorekeeper at Pettah only after the survey and the delivery ofthe crate to the Pettah stores) have determined which plateswere damaged and which were not? Indeed, no sooner thedamaged plates were identified and agreed upon at the survey,they should have been suitably marked and separated (and itseems to me that the undamaged plates should have beenkept, ready for use, together with those in the other 17 crates,and only the damaged plates sent to Pettah). Secondly,it is difficult to accept the Defendant’s claim that bothstorekeepers had disobeyed his instructions – whichMuthuarachchi denied – because he failed to produce anyevidence that he did anything about it.
Even if there had been some doubt as to what hadhappened at the point of delivery by the CEB to the ICSL, thatmight have afforded reasonable and probable cause only for a
240
Sri Lanka Law Reports
1200013 Sri UR.
complaint to the Police that the plates were missing – but notthat they had been stolen. Before alleging theft the Defendantshould have questioned Muthuarachchi. The fact that theDefendant’s motive was to recover property belonging to theCEB which was urgently needed for a public purpose makesno difference: that would have been good reason to ask thePolice for help to trace and recover the missing goods, but notto allege that they had been stolen.
Not only was Muthuarachchi’s evidence more convincing,but the Defendant himself put the matter beyond argumentwhen he stated in cross-examination that the crate had beenin his charge and that it was on his instructions that the cratehad been delivered to the ICSL; and when he acknowledgedthat he had made the complaint of theft against the Plaintiffwithout any foundation, simply because he had not givenpermission to anyone to remove the (undamaged) plates fromthe stores. The Defendant did not honestly believe that thePlaintiff had stolen the plates (or had otherwise acquired themdishonestly), and no person of ordinary prudence could haveentertained such a belief in the circumstances.
I hold that the Defendant had no reasonable or probablecause for alleging that the plates had been stolen.
I turn now to the question of malice.
I accept that the Defendant had no ill-will against thePlaintiff, whom he did not even know. Mr. Goonesekerasubmitted that there was no proof that the Defendant actedthrough some improper motive; he urged that, on the contrary,the Defendant had acted out of a sense of public duty, througha desire to recover property belonging to the CEB which wasurgently needed for a public purpose.
While I would accept that the Defendant may have beeninfluenced by a laudable sense of public duty, neverthelessquite clearly he exceeded the bounds of any such duty, when
sc
Alwis v. Ahangama (Fernando, J.)
241
he alleged that the plates were stolen and not merely missing.Even assuming that that was a mere exaggeration to expeditethe recovery of the undamaged plates, nevertheless, that madehis motive improper. He did not content himself with makinga fair statement of the facts, and leave it to the Police to usetheir discretion; instead, he made a false allegation of theft,which he could not reasonably have believed; and which wasnot merely reckless, but which he knew to be false. Further, hemust have known that an allegation of theft of CEB propertyworth Rs. 500,000 was very likely to result in an arrest. Therewas thus animus injuriandt
I hold that the Plaintiff established malice.
3. ASSESSMENT OF DAMAGESAlthough special leave to appeal was not granted inrespect of the assessment of damages, the circumstancesrequire a review of the amount awarded by the Court of Appeal.
The Court of Appeal regarded the Defendant as havingacted “high-handedly presumably in furtherance of his owninterests" in removing the crate, characterizing his conduct as"official thuggery with police assistance”. There is no doubtthat the Defendant acted improperly in alleging theft, butthe circumstances are consistent with an excess of zeal,undeserving of such severe strictures. Allowance should havebeen made for the fact that the Defendant was partly motivatedby the public interest; and that it is not desirable to discouragepersons from giving information of wrongdoing to theauthorities. Further, within four days he did withdraw theallegation of theft. At the same time, the Court of Appeal quiterightly took into consideration the serious damage to theprofessional reputation of the Plaintiff.
Viewed in that context, the sum of Rs. 500,000 awardedby the Court of Appeal is quite excessive. In my view, thePlaintiff would be sufficiently compensated by an award of
242
Sri Lanka Law Reports
12000) 3 Sri L.R.
Rs. 100,000, with legal interest only from the date of thisjudgment.
I am fortified in that view by another consideration. Theprinciples governing the assessment of the quantum of relief- whether termed damages, or compensation, or otherwise – foran arrest in violation of Article 13 {1) of the Constitution are notthe same as those applicable to the assessment of delictualdamages for a malicious arrest. The ingredients of the two“wrongs" are by no means identical; for instance, the formerdoes not require proof of animus injuriandl Nevertheless, ingeneral there ought not to be an enormous disparity betweenthe two “wrongs” when it comes to the quantum of relief.
Subject to the variation in regard to damages the appealis dismissed but without costs.
GUNASEKERA, J. – I agree.
ISMAIL, J.I agree.
Appeal Dismissed.