Cooray v. Fernando.
Present: Soertsz and Wijeyewardene JJ.
COORAY v. FERNANDO59—D. C. Colombo, 7,880
Malicious ciuil proceedings—Grounds of action—Malice—Maliciously insti-tuting maintenance proceedings—Roman-Dutch law.
■ Under the Roman-Dutch law an action will lie for maliciously insti-tuting civil proceedings in respect of a maintenance case falselyinstituted.
SOERTSZ J.—Cooray v. Fernando.
In such a case the grounds of action are similar to those of an actionfor malicious prosecution.
Malice in the case of malicious civil proceedings is not confined toactual personal malice but may include the case where the defendanthas been actuated by any other improper or indirect motive.
The difference between the English and the Roman-Dutch lawexplained.
PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera, K,.C. (with him A. H. C. de Silva), for plaintiff, appellant.
L. A. Rajapakse (with him G. P. J. Kurukulasuriya), for defendant,respondent.
Cur. adv. vult.
'March 13, 1941. Soertsz J.—
The plaintiff brought this action to recover damages on the ground that“ the defendant falsely, maliciously and with intent to injure the plaintiff,caused and procured one P. Panchohamy …. to sue the plaintifffalsely …. for maintenance of her illegitimate child whom shefalsely, and at the instigation of the defendant, alleged she bore to theplaintiff ”. The trial Judge dismissed the action with costs.
A peculiar feature of this case is that it arises from proceedings insti-tuted to obtain maintenance under the Maintenance Ordinance. Suchproceedings although they have been described in certain cases, asquasi-criminal, do not amount to a criminal prosecution. In fact, in thecase of Eina v. Erineris Bonser C.J. said : “ This Ordinance is not onedealing with a criminal matter, but it provides a speedy and less expensiveway of enforcing a civil obligation”. That view has been adopted inseveral later cases.
It seems to follow from this that proceedings under the MaintenanceOrdinance cannot properly be regarded as proceedings out of which anaction for malicious prosecution can arise, for “ malicious prosecutionconsists in maliciously and without reasonable or probable cause laying afalse criminal charge against anyone, which has led to the prosecution ofthe latter, and has thus injured him in person, property or reputation ”(Maasdorp Book III., p. 80).
But Counsel for the appellant contended that in that view of the matter,he stood in a more advantageous position, that is to say, in the positionof one suing a party for “ maintenance ” of civil litigation. He submittedthat a plaintiff in such a case had a much lighter burden to discharge thana plaintiff suing on the ground of malicious prosecution, and that all hehad to establish was that the defendant caused the initiation of civilproceedings, or fostered civil proceedings already set on foot, from anindirect motive, that is to say, “ without lawful justification ”,
In English law, “ Maintenance ” consists in instituting, carrying on ordefending civil proceedings in the absence of lawful justification. Theessence of it is intermeddling with litigation in which the intermeddlerhas no concern. The leading case on this topic is that of Neville v. LondonExpress Newspapers, Ltd.’ In that case it was held by the majority ofthe Law Lords that an action for maintenance lay even where the1 4 N. L. R. 4.* (H. L.) 1919 A. C. 368
SOERTSZ J.—Cooray v. Fernando.
“ maintained ” action had been successful, for the cause of action is theviolation of the absolute right every person has to protection against“ maintenance ”, in other words “ the right to be spared from officiouslitigation
In another leading case Harris v. Brisco', the Court of Appeal heldthat a person helping another in litigation on grounds of charity, comeswithin the exception of “ lawful justification So would a person whois solely actuated by considerations of kinship, and of interest in thelitigation. If then the principles of the law of England were applicable,Counsel’s contention that a much lighter burden lay upon him than wouldhave lain if this action were to be regarded as one for malicious prosecution,appears to be justified.
But, we must guide ourselves by the principles of Roman-Dutch lawin a matter of this kind. Maasdorp quoting Beukes v. Steyn= says :“ with respect to malicious legal proceedings whether civil or criminal,it may be laid down that when a person sets the law in motion, anddamage to another person accrues therefrom, he is liable in damagesif it can be shown that in doing so he acted maliciously and without rea-sonable or probable cause ”, and again on page 86 “ an action will lie notonly for malicious prosecution, but also for malicious civil proceedings, thegrounds of the action being similar in each case ”. Maasdorp then pro-ceeds to explain what is meant by “ maliciously ” and “ without reason-able and probable cause.” He says, at page 83 of the same book,“ malice ” in the case of … . malicious civil proceedings is not confinedto actual personal malice, that is to say, to spite or hatred against ora wish to annoy the plaintiff, but may include the case where thedefendant has been actuated by any other improper or indirect motive ”,Commenting upon “ reasonable and probable cause ”, he says : “ it willbe necessary for the defendant to show not merely that he had an honestbelief, but also that his belief was such as would have been entertainedby any person of ordinary discretion and prudence”.
While, therefore, in English law it is sufficient for a plaintiff to showthat a civil action was instituted, carried on or defended by the defendantin the absence of lawful justification as explained already, under theRoman-Dutch law, a plaintiff must prove in addition that there wasmalice, as well as want of reasonable or probable cause on the part of thedefendant.
The learned trial Judge found that “ even assuming that the mainte-nance case filed by Pancho is false, there is not sufficient evidence ..
.. to justify a finding that this defendant falsely, maliciously and with
intent to injure the plaintiff caused and procured her to file that case ”.This is somewhat ambiguous language. It is not clear whether the Judgemeant to say that he was not satisfied that the defendant 'did, at all causeand procure Pancho to file the case, or that he was not satisfied that incausing or procuring Pancho to file the case, the defendant was actingmaliciously, &c. But, I should think, that in the context of the wholejudgment, the concluding paragraph which I have quoted, was meant toconvey the meaning that the Judge held that he is not satisfied on theevidence that the defendant, at all caused or procured the filing of the
« L. B. 17 Q. B. D. 504.
7 Buch 24, bk. 3. p. SO
SOERTSZ J.—Cooray v. Fernando.
case. That is my view too. Certainly so far as Pancho’s first resort tothe Court is concerned, there is not even a suggestion that the defendantwas responsible for that. In fact, the suggestion appears to be that,on that occasion, she was instigated by the defendant’s brother, the PoliceVidane, between whom and the plaintiff there is alleged to. have beenill-feeling which it-is said, was fanned to flaming point by an incident thatoccurred on January 17, 1937.
Even this suggestion of instigation by the Police Vidane is not borneout by the course of that case. Pancho went into Court on January 17,1937. The case came to an abrupt end on February 18, 1937, because shehad no money to secure the attendance of her witnesses and this factnegatives the allegation against the Police Vidane, for if the headmanwas the evil genius urging her on, it is only reasonable to suppose that hewould have seen to it that the case ran its course.
Pancho revived the maintenance case on February 25, 1937, and it ishere that the intervention of the defendant is alleged. That allegationis based mainly on the evidence of M. A. Fernando, P. H. S. de Silva andDhanapala, and also on the complaint made by the plaintiff to the MoratuwaPolice on March 28, 1937.
The learned Judge disbelieves the evidence of the three witnessesmentioned above, and I must say that; although I have not had the ad-vantage of seeing and hearing those witnesses, I share the disbelief ofthe trial Judge. Their evidence sounds unconvincing. The entry in thePolice information book is a piece of self-serving evidence, and as thelearned Judge has pointed out, the plaintiff is not too shy of fabricatingevidence. For instance, it is quite clear that he sought to create evidencein an attempt to establish that Pancho had first declared that the plaint?iff’s lunatic brother was the father of the child as is shown by documentsP 2 and D 2, and by a perusal of evidence of H. S. Fernando whom theJudge has disbelieved.
The plaintiff’s case fails whichever way it is examined, whetheraccording to the principles of English or of Roman-Dutch law. If theconcluding part of the trial Judge’s judgment means, as I think it does,that he is not satisfied that the defendant caused or procured the insti-tution of the maintenance proceedings, the action fails under the Englishlaw for want of proof of the essential fact of officious interference inlitigation. If, however, it is assumed that the trial Judge meant to saythat he was not satisfied that the defendant when he caused and procuredthe filing of the maintenance case was acting maliciously and withoutreasonable or probable cause, then again the action fails under theRoman-Dutch law which governs this case for the reason that twoessential conditions have not been satisfied.
— On the matters before us, it is impossible for us to differ from the viewtaken by the trial Judge that there is no proof of malice and of wantof reasonable and probable cause.
For these reasons, I am of opinion that the appeal fails and that it mustbe dismissed with costs.
Wijeyewardene J.—I agree.
COORAY v. FERNANDO