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Present: De Sampayo J. and Loos A.J.
APPUHAMY v. APPUHAMY et al.,
364—D. C. Ghilaw, 6,168.
Conspiracy to charge another falsely—Action for damages—Joinder of parties—Civil Procedure Code, s.14—“ In respect of the same cause
of action "—Actioinjuriarum—Falseinformation topolice—
Action against informer though he did not institute criminal proceedings—Proof of conspiracy.
Where three persons conspired together to charge another faiselywith an offence, all the three may be sued together in an actionfor damages.
The actio injuriarum may be brought against a person who with thenecessary intent puts the law in motion, though he may not himselfinstitute proceedings in the Court.
' 'Hill facts appear from the judgment.
.H. J. G. Pereira, for plaintiff, appellant.
.A. St. V. Jayawardene, for defendants, respondents.
March 29, 1920. De Sampayo J.—
The plaintiff brought this action for damages against the three■defendants, alleging that they had conspired to charge the plaintiff.falsely with having shot and killed Martinu Thamel, and that inpursuance of their intent they maliciously gave false informationto the police, in consequence of which the plaintiff was prosecutedin the Police Court case No. 5,824, in which the defendants likewisegave false evidence to the effect that the plaintiff had shot the saidMartinu Thamel. The defendants took issue with the plaintiffas regards those allegations, and further pleaded' that there wasa misjoinder of parties, inasmuch as the defendants could not besued together in the same action. This plea was, of course, unsus-tainable, since, if the defendants had conspired together as alleged,they could be sued jointly. Moreover, section 14 of the CivilProcedure Code provides that all persons may be joined as defend-ants against whom the right to any relief (as in this case) is allegedto exist, whether jointly, severally, or in the alternative in respectof the same cause of action, and that judgment may be given .againstsuch one or more of the defendants as may be found liable, accord-ing to their respective liabilities, without any amendment. Theexpression “ in respect of the same cause of -action ” creates nodifficulty, because the plaintiff’s cause of action in substance is the
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alleged false and malicious prosecution. Another point raised isthat there was no prosecution at. all by the defendants, inasmuchas the formal complaint in the Police Court proceedings was bya police sergeant, and not by any of the defendants. But underour law the actio injuriarum may be brought against any one,who with the necessary intent puts the law in motion, and I amsatisfied on the evidence that it was the defendants, more especiallythe third defendant, who induced the headman and the police to act.
As regards the main question, most of the facts are undisputed.It appears that there was a dispute between the plaintiff and thedeceased Martinu Thamel about the right to a certain land. Thamelin assertion of his alleged right went upon the land, built a cadjanhut, and established himself there. The plaintiff, who is a headman,
– complained to the Mudaliyar, who fixed May 31, 1913, for inquiry,and directed the parties to come on that day. The plaintiff went,but Thamel did not. On June 1 plaintiff instituted a case againstThamel, and against the first defendant, the third defendant, whowas Thamel’s brother, and some others, who were alleged to havejoined Thamel in the act of trespass. There is no reason to doubtthat the defendants did assist Thamel. On June 4, while Thamelwas in the hut, he was shot at and injured in the leg. He wastaken to hospital, and there died on June 12. The plaintiff, on theinformation of the defendants, was first charged with attempt tomurder Thamel, and after Thamel died he was charged with theprincipal offence of murder. The case resulted, in the plaintiffbeing discharged, as he successfully proved that at the time inquestion he was occupied with official business elsewhere, and wasnot near the place at all. The same evidence was given in .this case,and the District Judge found that jt was not the plaintiff who shotThamel. The information given by the defendants to the authoritiesand their evidence in. the Police Court were necessarily false and,in the circumstances, malicious. Their statements were to theeffect that they were at the spot at the time, that they heard Thamelcry out that Hendrick Singho Vidane (meaning the plaintiff) hadshot him, and that they themselves saw the plaintiff there. Thefirst defendant went so far as to say. that he saw the plaintiff in theact of aiming and firing the gun, while the other defendants saidthat they saw the plaintiff going away, after the firing, with the gunin his hand. The District Judge thought that their statements asto the cry of the deceased Thamel might not necessarily be falsebecause, although it was not the plaintiff who shot him, Thamelmight, nevertheless, have said so, as he would naturally suspect theplaintiff in consequence of the land dispute. .This* is a plausibleexplanation, but not very convincing. But the more importantpoint, and the gist of the whole affair, is that these men said thatthey saw the plaintiff with the gun. This is false, and as theyprofessed to speak from personal observation, it was consciously and
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deliberately false. The District Judge makes no comment on thispoint, and bis whole judgment appears to be weakened, if notvitiated, by that circumstance.
The District Judge also negatived the allegation of a conspiracy.The plaintiff’8 ease on that point consisted both of direct andindirect evidence, mid the District Judge deals with the directevidence, and makes no allusion to the effect of the other evidence.The witness whom he discredited is one Charles Appu. His evidencewas to the effect that a few days before the shooting there was ameeting of the defendants and some others at the house of oneFranciscu Fernando, son-in-law of the third defendant, and thathe heard a talk among them about setting fire to the hut on thedisputed land and doing some injury to Thamel and charging theplaintiff with the offence. He professed to have heard the actualwords used and • entered into many details. The District Judgethought that this was an improbable story, but I think that CharlesAppu’s evidence cannot be so easily brushed aside. I am preparedto believe that Charles Appu drew somewhat on his imaginationwith regard to the actual words and other details. But is thesubstance of the information he gave to the plaintiff entirely false ?What followed is rather remarkable. The plaintiff at once com-plained to the headman of Kakkapaliya and to the police about aconspiracy to implicate him in some false charge. Charles Appuhad mentioned the names of specific persons, and some of them arethe very persons (the defendants in the case) who subsequentlygave false evidence against him. As a matter of fact, Thamel wasinjured, though more seriously than probably intended, and theplaintiff was falsely charged. The event accorded with CharlesAppu’s information. This correspondence is too remarkable to beregarded as a mere coincidence, and if the idea of a conspiracy issupported by other consideration, I do not see why it should be
This brings me to the indirect effect of the other evidence. Eachof the defendants gave information to the headman and the police,and subsequently gave evidence in Court, that each of them sawthe plaintiff at the spot either in the act of shooting or going awayafter shooting. Counsel for the plaintiff forcibly urged that thissimilarity of statements could only be accounted for in one of twoways: either the statements were true, or if false, they were due toan agreement among them to say what they did. Since the state-ments were not only untrue, but intentionally false, the conclusionis not unreasonable, that there was some sort of agreement toimplicate the plaintiff in a false charge. It is not easy to prove aconspiracy by positive evidence; in most cases it can only beinferred from circumstances. In my opinion the circumstancesmentioned, combined with Charles Appu’s information and thesteps taken by plaintiff thereon, are reasonably sufficient to establish
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a common purpose and a common action on the part of the defendantsto put plaintiff in trouble.
The plaintiff had not only to meet the charge of murder, butwas kept in custody pending the Police Court proceedings fortwenty-seven days. He is a headman and a person of some posi-tion. He undoubtedly suffered a grievous wrong at the hands ofthe defendants, and I think he is entitled to substantial damages.I would set aside the judgment appealed from and give judgmentin plaintiff’s favour for Bs. 750, together with costs of the actionand of this appeal.
Loos A.J.—I entirely agree.
APPUHAMY v. APPUHAMY et al