COREA v. PEIRIS

042-NLR-NLR-V-12-COREA-v.-PEIRIS.pdf


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In tiih Privy (‘ouncic,.
On appeal from the Supreme Court of Ceylon.
Present: Lord Macnaghten, Lord Atkinson, Lord Collins, andSir Arthur Wilson.
V'09-May 11.
COREA v. PEiRIS.D. C., Rumnetjala, 2,740.
Malicious prosecution—Requisites of proof■—Charge based on information—Belief in the truth of the charge—Conduct of a reasonable manof ordinary prudence—Animus injuiiae—Reasonable and probablecause—Burden of proof—Competency of counsel to give evidence-on behalf of his client—Making out a new case on the hearing inreview—Roman-Dutch Law—English Law.
The principles of the Roman-Dutch Law and the English Lawon the subject of malicious prosecution are practically identical,and the onus of proving the existence of animus injur im or malicerests on the plaintiff under both systems of law.
Where a person makes a criminal charge against another oninformation received- by him from others, the motives of hisinformants, or the truth in fact of the story they tell, are to agreat extent beside the point. The crucial questions for con-sideration are: Did the prosecutor believe the story upon whichhe acted ? Was his conducts in believing it, and acting on it, thatof a reasonable man of ordinary prudence ? Had he any indirectmotive in making the charge ?
An advocate is competent to give evidence on behalf of the clientfor whom he appears.
A party to a suit should not be allowed to make out a new caseon the hearing in review.
A
PPEAL by the plaintiff from the judgments of the SupremeCourt reported in 9 N. L. R. 276 and 10 N. L. R. 321, where
the facts are fully set out.
Messrs. De Oruyther, K.C., R. W. Lee, and E. W. Per era. for theplaintiff, appellant.
Messrs. Simon, K.G., Dornhorst (K.C., of the Ceylon Bar), JamesPeiris, and Geoffrey Lawrence, for the defendant, respondent.
May 11, 1909. Loro Atkinson—
This is.an appeal from a judgment of the Supreme Court of Ceylon(in review) dated October 2, 1907, affirming its judgment on appealdated August 27, 1906, whereby a judgment pronounced by theDistrict Court of Kurunegala on April 20, 1906, in the plaintiff'sfavour was reversed.
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. The action, which was instituted by the appellant in the DistrictCourt, was .one for malicious prosecution on a charge of criminaltrespass and theft.
As their Lordships understand the judgment appealed from, theSupreme Court held that a prosecution instituted without malice,and with reasonable and probable cause, cannot, under the Roman-Dutch Law, be held to amount to an act of aggression; that ananimus injuria in the prosecutor cannot, therefore, be inferred fromthe mere fact that the prosecution has failed and the accused beenacquitted ; that the burden of proving the existence of this animusinjuria (i.e., malice) rests, under the Roman-Dutch Law as underthe, English Law, on the plaintiff in such an action; and that theprinciples of the two systems of law on the subject are practicallyidentical. The various authorities to which their Lordships havebeen referred fully sustain, in their opinion, the several conclusionsat which the Supreme Court has arrived on these points.
The appellant and respondent have conflicting claims to anundivided half of certain land called Madugasagare, situate in theabove-mentioned district. The respondent claims as the assigneeof the donee of a lady named Cunemal Etana, and the appellantas the assignee of a subsequent donee of the same lady, she havingrevoked her first deed of gift and made a second. The appellantis an advocate of the Supreme Court of Ceylon. He resides atChilaw in that Island, and practises his profession in the DistrictCourt which sits there. He is a member of a respectable family,and is possessed of considerable lands in the. neighbourhood ofChilaw. Notwithstanding this, he has, as the District Judge finds,appeared three times in a Criminal Court of Justice charged withcriminal trespass. In one of these cases he made counterchargesagainst his accuser, and both charges were withdrawn, in the twoothers the charges were dismissed. In the first-mentioned instancethe charge was made by one Usubu Lebbe, acting on behalf of therespondent, in respect of an alleged forcible trespass on some otherland of the respondent situate in the same district as that in whichMadugasagare is situate. The prosecution was withdrawn on theterms that the appellant should bring an action in a Civil Court totry, as between him and the respondent, the question of title tothe lands, in default of which the respondent was to be at libertyto institute fresh criminal proceedings. The appellant accordinglyinstituted a suit apparently for that purpose, not, however, in theCourt of the district, in which the lands were situate, which wouldhave had jurisdiction to entertain the suit, nor yet in the Court ofColombo, where the, respondent resided, but in the Chilaw DistrictCourt, which had no jurisdiction to entertain the suit. This wasnot only a breach of the arrangement to which the parties had come,but looks rather like an unworthy and somewhat contemptibletrick on the appellant’s part, since it is impossible to suppose that
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he was so ignorant of the powers and procedure of …the Court inwhich he practised as to believe that such a suit could be entertainedby it. Subsequently the respondent instituted a possessory actionagainst the appellant in respect of the same lands, and an appealto the Supreme Court in that action was pending at the time theprosecution complained of was instituted. Such being the characterand conduct of the appellant, it was not at all unnatural or unreason-able, in one who knew him as the respondent did, to conclude thathe was a man perfectly capable, when occasion arose, of attemptingto assert his title to land by the method of deliberate and forcibletrespass. Nor, indeed, could the idea that he might remove byforce from land claimed by him any property of the rival claimantwhich he might find upon it, for the purpose of asserting his claim,though not for the "purpose of ultimately appropriating the propertyto his own use, be regarded as wild or extravagant.
The respondent resides in Colombo, which is some considerabledistance from the Madugasagare estate. He is possessed of consider-able household property, which he manages himself, as well as ofcoconut plantations and other lands situated in the Districts ofKurunegala and Chilaw. These latter, which he visited generallyonce a year, though sometimes only once in two years, were managedfor liirn by his cousin Joseph Peiris, under a power of attorney,enabling the latter not only to manage the lands in the ordinarycourse, but, in addition, to purchase other land and compromisedisputes concerning it.
Joseph Peiris lives at a place called Nattandiya, about 15 milesfrom Madugasagare. He is a man between fifty and sixty yearsof age, and has been an invalid for many months, suffering fromdropsy, for which he has been operated on several times. He had,as the respondent’s agent, purchased the lands of Madugasagare bitby bit on his principal’s behalf. They were on October 13, 1899,formally conveyed to the respondent, and had remained in hisundisturbed possession for a period of ten or twelve years. JosephPeiris, who had been in the employ of the respondent and his fatherfor many years, was assisted in the management by Ismail MceraLebbe, described as the conductor of Madugasagare, who had beenin the service of the respondent and his family for thirty years, andalso by one Usubu Lebbe, a Moorman, who had been in the sameservice for twenty-seven years. The respondent swore that hetrusted these three men and relied on their veracity. In the monthof September, 1902, he received a letter, dated the 3rd of thatmonth, purporting to have been written, on the instructions Of theappellant, by his Proctor, Mr. Martin, in which the respondent wasasked if he was willing to give up to the appellant possession of theportion of Madugasagare in dispute, on receiving compensation forany improvements he might have made thereon, and threatenedthat, in the event of refusal, an action for the recovery of possession
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would be brought against him. The respondent forwarded this letterto Joseph Peiris, who, on receiving it, entered into negotiationswith Martin for the settlement by arbitration of the appellant’sclaim. Nothing came of the negotiations, but Joseph Peiris sworeat the trial that, fearing that the respondent would, on finding thislitigation threatened, be annoyed with him for having purchasedlands with a defective title, he concealed from the latter everythingconnected with the negotiations. And the respondent swore thatfrom the time he forwarded Martin’s letter to his cousin he heardnothing more about the appellant’s claim, or about any negotiationsconcerning it. The evidence of both these witnesses is uncontra-dicted on these points. This was the condition of things whichexisted before, and at the time when, the events leading up to theprosecution complained of occurred.
The District Judge seems to have been fully aware that, in anaction for malicious prosecution, the law throws upon the plaintiffthe burden of proving the presence of malice in the mind of theprosecutor, and the absence of reasonable cause for the prosecution ;but he appears to have been led into error by not keeping steadilybefore his mind the fact that the pivot upon which almost all suchactions turn is the state of mind of the prosecutor at the time heinstitutes or authorizes the prosecution. If he receives informationfrom others and acts upon it by making a criminal charge againstany person, the motives of his informants, or the truth in factof the story they tell, are to a great extent beside the point. Thecrucial questions for consideration are : Did the prosecutor believethe story upon which he acted ? Was his conduct in believing it,and acting on it, that of a reasonable man of ordinary prudence ?Had he any indirect motive in making the charge ? The DistrictJudge, it would appear to their Lordships, seems to have confound-ed the motives and action of Joseph Peiris with the motives andaction of the respondent, the truth in fact of the informationconveyed to the respondent, and the motives of those who conveyedit, with the respondent’s belief in what he heard and his prudencein acting on it; and to have condemned the respondent to payRs. 10,000 damages on inferences drawn from the combined result.
The facts other than those already mentioned which were provedin evidence, so far as it is necessary to state them, are as follows.On the afternoon of a certain day, which is said to have been. February 4, 1904, a message was brought to Joseph Peiris, who wasthen ill and confined to 1 d. by a Moorman by name unknown tohim, that the appellant, accompanied by a large number of men,had entered upon the land of Madugasagare, broken into thebungalow erected thereon, broken some, of the furniture and effectsin it, carried away others, and driven away some goats. On thefollowing day Meera Lebbe arrived at Joseph Peiris’s residence andgave a fuller account of the transaction, of which he professed to. have
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been an eye witness. Thereupon Joseph Peiris, thinking it wasMeera Lebbe’s business to institute proceedings, as he was in chargeof, and responsible for, the property removed, directed the latter toget a report from the'headman, who, Lebbe stated, was a witnessof the affair, and, to use his own words, “put in a case.” JosephPeiris also stated that he believed he wrote to the respondent a letterinforming him of what had occurred; but the letter was not produced,nor did the respondent admit the receipt of it. Joseph Peirisfurther stated that he got alarmed lest there should be a recurrenceof the disturbance, and sent a telegram to the Government Agentand Assistant Government Agent at Chilaw in reference to thetransaction. This telegram is not to be found in the record. TheAssistant Government Agent, Mr. Bertram Hill, who was examinedas a witness at the trial, purports to state its contents. He said :“ I received a telegram from one Peiris complaining that Mr. VictorCorea with some men bad got into a land and committed theft,criminal trespass, &c.” It- is not clear, however, whether these werethe precise words of the telegram, or the charge ultimately framedupon it. The telegram which he himself subsequently sent to thePolice Magistrate at Chilaw in respect of it suggests the latter. . Itran thus : “ Any truth in reported riot by Corea on Madugasagareestate belonging to Peiris ? Is my presence required ? ”
On the following day Usubu arrived at Joseph Peiris’s house.Meera Lebbe was then about to return to the estate of which he wasin charge. Joseph Peiris directed Usubu to accompany Meera andinquire into the transaction. Usubu did so. He saw. he stated,that the door of the bungalow was broken, that the rice box andsome cups and plates were also broken, and that the furniture hadbeen removed. Mr. Joseph Peiris stated that Usubu returned tohim and confirmed Meera Lebbo's report. Usubu stated that hewent to Colombo to see the respondent on February 7 or 8 ; that hoinformed him of what had taken place, namely, that “Mr. Corea’speople had come and committed tins damage,” gave him fullparticulars, and accompanied him to the house of his advocate ;that, after the interview with the advocate, he took a-message fromthe respondent for Meera Lebbe to the effect that, as he (Meera)was responsible for the things stolen, he must himself prefer thecomplaint against the appellant; and that he (Usubu) returnedfrom Colombo to Nattandiya, Mr. Joseph Peiris’s residence, onFebruary 9 or 10, only to find that Meera Lebbe had already goneto Kurunegala to institute a prosecution. The respondent statedin his evidence at the trial that he knew nothing of the telegramsent to the Government Agent, nor of the proceedings consequentupon it, till the hearing of the charge against the appellant. On thispoint his evidence, was not contradicted. The advocate to whomthe respondent went for advice, accompanied by Usubu Lebbe,was Mr. Schneider, a gentleman apparently of position in his
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profession, whose evidence was not impeached. He was tendered asa witness for the respondent at the trial, but the District Judge ruled,on some quite unsustainable ground, that, being the respondent’sadvocate, his evidence was inadmissible. The Supreme Courtmost properly, in their Lordships’ opinion, permitted him to beexamined.
His evidence is most important. It, supplies the explanation ofmuch that occurred. He states that the respondent came to himaccompanied by Usubu; that the former then said that Mr. Coreaand a number of other men had gone to one of his estates, raided thebungalow, smashed furniture, and removed certain things, includinggoats ; that the respondent consulted him as to what he was to do ;that he (Schneider) asked the respondent what evidence wasavailable, to which the latter replied that “ coolies, kanganies, andthe native headman had been brought to the spot and could giveevidence ”; that he (Schneider) told the respondent it was well worthconsidering whether he should bring a criminal action; that therespondent then stated that."Usubu was an old servant, that Meera
Lebbe had been with him forty years, and that he relied upon them ;that he (Schneider) asked the respondent if he thought Corea couldbe guilty of such a-thing, to which the-latter replied, that Coreahad years before seized 50 acres of one of his (Peiris’s) estates,and that “ if gentlemen learned in the law behaved so, how .can wepoor people get on ” ; that the respondent was very much alarmedwhen he saw him first, and said that, unless he took steps “ therewas no protection for any of his estates in that district ” ; that he(Schneider) advised the respondent to bring a charge in the PoliceCourt of Kurunegala; that he did not think he advised him tobring any particular charge, but to lay the facts before the PoliceMagistrate, who would frame a charge. The respondent and Usubuthen left. The respondent paid another visit to Mr. Schneidersome days later. But, before dealing with Mr. Schneider’s evidenceas to what took place at the second interview, it is necessary torefer to what occurred before the Police Magistrate at Kurunegalain the interval. Meera Lebbe had, in pursuance of the directionsof Joseph Peiris, obtained a report from the native headman on theoccurrence of February 4, which the latter had witnessed. Armedwith this report, he went to a gentleman named Markus, a Proctorof the District Court, of Kurunegala, who had been in practice forthirty years, and of whom the respondent was a client, to instructhim on his (Meera’s) own behalf to institute proceedings against thedefendant and others for criminal trespass on the respondent’slands. Mr. Markus, who was examined on behalf of the respondentat the hearing of this action, and whose evidence was not impeached,directed Meera. to lodge this report with the clerk-of the PoliceCourt, who, according to the practice of the Court, would translateit. and lay it before the Police Magistrate, The Magistrate had,
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however, left Kurunegala to hold an inquiry elsewhere,, and MeeraLebbe, by direction of Mr. Markus, returned on February 16, whenhis evidence was taken, Mr. Markus appearing for him. No chargewas then formulated, and it is clear from the evidence then givenby Meera Lebbe that the respondent had made no charge on hisown behalf, and that Meera’s accusation against, the appellantwas that which he had already made to Joseph Peiris, namely, thatthe appellant had come with a number of people, broken intothe bungalow, and removed therefrom the defendant’s property.What they did with this property, he said, he did not know. ThePolice Magistrate, however, refused to proceed further without theevidence of the respondent. Mr. Markus thereupon sent MeeraLebbe to the respondent with a letter requesting that Mr. Schneidershould appear ’u the case, together with a report of the proceedingsbefore the Police Magistrate. The respondent stated that, untilhe saw Meera on this second occasion, he was entirely unaware ofthe step which had been taken by the latter. He thereupon,accompanied by Meera Lebbe, waited upon Mr. Schneider, and laidbefore him the report of the proceedings in the Police Court, whichhe had received from Mr. Markus, together with the latter’s Tetter.Mr. Schneider, in giving evidence, stated that, on this secondoccasion, he (Schneider) questioned Meera Lebbe, and that hethought he must have asked the respondent if the appellant hadany claim upon the estate, and that, if he did, the respondentmust in reply have said “ none.” He added that he appeared forthe respondent in the subsequent proceedings before the PoliceMagistrate, and that, when the latter asked him under what sectionof the Penal Code he charged the appellant, he believed he “ ledhim as to the substance of the charge.” Mr. Schneider, in answerto the Court, added : “ I did personally believe that- Mr. Coreamight have committed theft; that he was likely in execution ofhis project to allow his followers to carry away anything that camein their way, fowls, &c. 1 believed his real object was simply toobtain possession of the estate, and he was responsible for takingaway the goods, though it was not his primary object to do so.”The respondent appeared before the Police Magistrate on March18. He detailed what he had heard from Usubu and Meera Lebbe.He stated that the appellant had no claim to the lands, and didnot advance any claim to them; that he had cases with the appellantabout other lands, in one of which an appeal was pending ; and thathe thought the appellant had done what he was accused of onaccount of this appeal. He then added: “ I charge Mr. Corea withthe criminal offence of theft of the furniture of the house and theproperty of the estate and the goats, amounting in all to aboutRs. 800. 1 charge Mr. Corea with having committed criminaltrespass by entering into my estate, and with having removed there-from my property.” Upon this evidence being given, the Magistrate14-
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made the following order:—“ Issue summons to the accused namedin the Headman’s Report, Sections 369, 433, 437, Ceylon PenalCode.”
It is clear upon the above evidence that the real charge which theprosecutor wished to have preferred against the appellant was thatof criminal trespass, since he looked upon t’-e trespass as an actdirected against his title to, and ownership of, these, and possibly •other, lands in the district. The conversion of the charge of theremoval of the goods into the charge of the theft of them was verymuch due to Mr. Schneider’s having “ led ” the Magistrate, as hecalled it, into throwing the charge into that shape. And fromone passage in the respondent’s evidence on cross-examinationit is plain that an idea something like that which ran throughMr. Schneider’s head—namely, that the appellant should be heldresponsible for the thefts of those who accompanied him, though hehimself was personally incapable of thieving—ran through his. headalso. The passage runs: “I did not think Mr. Corea capable ofcommitting theft. Personally I am not capable of such an offence.”
In the result, therefore, the respondent proved that he believedthe story his old and trusted servants had told him; that heconsulted his legal advisers at every step ; and that he took actionin defence of his title to his property, in the bona fide belief that theappellant had trespassed on his land and forcibly removed his goods.The case made against him is that he could not have believed,or should not have believed, without much stronger proof, thatMr. Corea was capable of committing a theft, and that he actedrecklessly in accusing him of having committed it.
Their Lordships think that, having regard to all that occurred,and to the way in which it came about that that charge of theft wasformulated, there was nothing reckless in the respondent’s conductwith regard to it, nor, upon the evidence already dealt with, isthere any proof of indirect motive or malice of any kind on therespondent’s part. The District Judge, however, discovered proofof malice in two incidents not hitherto referred to: first, the. factthat the charge was made pending the hearing of the appeal in thecivil suit; and second, the statement made by the respondent thatthe appellant had ho claim to the lands. The charge was made, heconcludes, to prejudice the minds of the Judges who were to hearthe appeal against the appellant—a wild and far-fetched suggestion,which there is nothing in the case to justify—and the denial of theappellant’s claim was, he thought, intended to blacken the appellantin the eyes of the Police Magistrate. Their Lordships are unableto understand how the fact of the appellant having a claim to thelands could lessen, in any w-ay the moral or legal culpability of theconduct of which he was accused. Their Lordships think it un-necessary to consider the question of the alleged mala fides of JosephPeiris in sending me accusing telegram, or Usubu’s alleged dishonest
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efforts to bring about a settlement of the claim to the land, or of theprosecution or the withdrawal of the charge against Joseph Peiris,whichever it be, though the District Judge seems to think themrelevant and worthy of consideration. They are outside this case,as the respondent was no party to them, and knew nothing of them.Their Lordships are further of opinion that the Supreme Courtacted quite rightly in refusing to permit a new case to be made onthe hearing in review on the supposed analogy of Comford v.Carlton Bank.1 As above pointed out, the District Judge had notthe advantage of hearing Mr. Schneider’s evidence, which no doubtproduced a great impression on the Supreme Court. * On the whole,therefore, their Lordships concur with the Supreme Court in holdingthat there is not sufficient proof that the respondent was actuatedby malice, or that there was not reasonable and probable cause forthe prosecution. They will therefore humbly advise His Majestythat the appeal should be dismissed. The appellant must pay thecosts of the appeal.
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Appeal dismissed.