COREA v. PIERIS

062-NLR-NLR-V-10-COREA-v.-PIERIS.pdf


( 321 )
' [In Keview.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice Wood Benton!
COREA v. PIERTS.D. C.t Kurunegala, 2,74U.
Malicious prosecution— W ant of reasonable and probable cause—Malice—Power of Supreme Court to take new evidence—Admissibility ofevidence of counsel appearing in the case—Dolus xnalus—Pointtaken for the first time m review—Courts Ordinance {No* 1 of 1889),s. 40-^Civil Procedure Code, s. 778.
In an action for malicious prosecution the plaintiff must provethat the defendant acted maliciously; it is not sufficient to provemere absence of reasonable and probable cause.
Wood Heston J.—It is incumbent upon the plaintiff to provemalice as well as want of reasonable and probable cause. Theabsence of reasonable and probable cause may be so glaring as togive rise to a presumption of malice. But malice is a distinct andnecesoarv element in the constitution of the cause of action in anaction for malicious prosecution.
Under section 40 of the Courts Ordinance the Supreme Court haspower to take new evidence at the bearing of an appeal.
There is no law which prohibits counsel appearing m a case fromgiving evidence on behalf of their clients.
The Supreme Court will not entertain for the first time at ahearing in review * a- point which was not taken in the Court belowor in appeal.
The principle laid down in “ The Tasmania ”l followed.
H
EARING in review of the judgment of the Supreme Courtreported in 9 N. L. R. 276, where the facts are fully stated.
H. A. Jayewardene {with him H. J. C. Pereira), for the plaintiff,appellant.
Van Langenberg, for the defendant respondent. *
Cut. adv. vult.
October 2, 1907. Hutchtnson C.J.—
The appellant is the plaintiff in an action for malicious prosecutionof the plaintiff by the defendant. The facts are fully set out in thejudgment of the District Judge, who gave judgment for -the plaintiff.On the hearing of the appeal from that judgment, L’asceUes A. C.J.and Middleton J. thought that it was desirable to take the evidence.
*15 App. Cos. 225.
21*
f. N. A 90007 <A/fiM
ft
1907.
October 2
1907.
October 2.
Hutchinson
QJ.
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of a witness whom the defendant had wished to call at the trial, butwhom the District Judge had refused to allow to give evidence.The refusal was on the ground that the witness was one of thedefendant’s counsel. But neither chapter XI. of the Evidence Actnor any other law or practice makes that a ground for rejecting awitness' evidence; and the Supreme Court has power under section40 of the Courts Ordinance to -admit new evidence; and the evidenceof this witness was therefore rightly taken.
The witness, who is an advocate practising in Colombo, deposesthat shortly before the prosecution, of which the plaintiff complains,was instituted, the defendant came to him in Colombo, accompaniedby a man called IJsubu, and told him that the plaintiff and othershad gone to one of his estates in the Kurunegala District and raidedthe bungalow and smashed furniture and .removed things. Thewitness questioned IJsubu, who he understood had gone to theestate after the row and had seen broken furniture. He was told bythe defendant that Usubu was an old servant, and that Meera Lebbe,who was said to have been eye-witness of the alleged offence,had been with him for forty years, and that he relied on them; hethen advised the defendant to bring a charge in the Police Court.
A few days afterwards the defendant saw him again with a letterfrom his Kurunegala proctor and a copy of Meera Lebbe’s evidencebefore the Magistrate, the cause of the visit being that the Magistratewas reluctant to issue process against the plaintiff until the defend-ant’s evidence was recorded, and that the proctor wanted thedefendant to go to Kurunegala for that purpose. The witnessappeared for the defendant in the subsequent proceedings beforethe Magistrate at Kurunegala and Chilaw in £he investigation of thecharge against the plaintiff.
In my opinion the evidence taken at the trial did not justify afinding that the defendant acted maliciously, and, when supple-mented by the evidence taken on the hearing of the appeal, it seemsto me to show that he believed that the charge against the plaintiffwas well founded.
Upon this hearing in review the appellant took an entirely newpoint, to wljich no reference was made in the District Court or atthe appeal. He contends that, even if the defendant is not liablefor having maliciously and without reasonable and probable caus?. *instituted the prosecution, he is liable for the act of his servant,Joseph Pieris, who was the real originator of the prosecution. Thereis, however, no statement in the plaint that Joseph Pieris prosecuted* the plaintiff maliciously or otherwise, or that in doing so he was thedefendant's agent, or that the defendant was liable for his act; andno issue was settled or evidence taken on any of those points. Inthe present action therefore this contention cannot be maintained.
* I think that the decision under review should be confirmed, andthat the plaintiff should pay the costs of this hearing in review.
•c
Middleton J.—
( 323 )
1907.
October t,
I do not consider it necessary to add much to the judgment —
I have already delivered in this case, which, I think, should beaffirmed and tbe appeal dismissed.
. As regards the liability of the defendant for the act of his servant,
Joseph Pieris, it is sufficient to say that this is a point which was notraised until this hearing in review; that there was no evidencedirected to show that the institution of criminal proceedings camewithin the scope of his employment, or that he acted maliciouslycr in a way from which it may be inferred he so acted.
No issues were settled on these points, and no findings have beenarrived at.
I .think, therefore, it is not competent for this Court at the present-stage to consider this entirely new point, in accordance with theruling of Lord Herschell in" The Tasmaniawhere that learnedJudge is reported to have said that a Court of Appeal ought only todecide in favour of an appellant on ground put forward there for thefirst time, if it be satisfied beyond doubt that it has before it all thefacts beaiing upon the new contention as completely as it wouldhave been the case if the controversy had arisen at the trial.
Wood Renton J.—
I think that the judgment under review should be affirmed; andI will only .touch upon the main points in Mr. Jayewardene’sargument.
(i.) It is hopeless to contend now, after the decision in the case ofAbrath v. N. Eastern* Ry, Co.,1 2 that it is not incumbent upon theplaintiff in an faction for malicious prosecution to prove malice as wellas want of reasonable and probable cause. The absence of reason*able and probable cause may be so glaring as to give rise to a pre-sumption of malice. But malice is a distinct and necessary element-in the constitution of the cause of action with which we have hereto deal; and mere recklessness will not establish it (see Broton v.
Hawkes5). In this connection I desire to add that I do not thinkthat either Moss v. Wilson4 or the judgment under review in anyway altered the pre-existing law as to the burden of prqof in actionsfor malicious prosecution. These judgments only decide that thererests on the plaintiff the eventual burden of making out everyelement (malice included) which the law requires him to plead.
Cox v. English, Scottish and Australian Bank, Ltd.,5 is no authorityfor dispensing with proof of malice in an action for maliciousprosecution. * On the contrary, it expressly adopts the passage inAbrath v. N. Eastern Ry. Go., in which that necessity is .affirmed.
115 App. Cos. 325.3 (1891) 3 Q. B. 718.
2(1883) 11 Q. B. D. 455 and 11.« <1905) 8 N. L. B. 36ft.
App. *Ca*. 247.#3 (1905) A. C. 1P8.
1007.October :
Wood
Renton
l 324 )
(ii.) I think that, under section 40 of the Courts Ordinance (No. J
S, of 1889) and section 773 of the Civil Procedure Code, it is
competent for the Supreme Court, on the hearing of an appeal, earj mero motu, to call before it for examination not only witnesses whohave, but persons who have not, been examined in the Court below,and to examine any witness, although the Court below had rejectedhim as incompetent, provided always of course that in thejudgment oftheSupreme Court no suchincompetency exists.
The Supreme Court was therefore within its rights in the presentcase in taking the evidence of Mr.' Schneider, the respondent'scounsel, although he had not only not been examined in the DistrictCourt, but had been held by the Judge to be incompetent as awitness.
(iii.) With regard to this later point, no objection to thereception ofMr.Schneider’sevidence wastaken on behalf of
the appellant, when Lascelles A.C.J. and Middleton J. intimatedtheir intention to examine him. He was in fact examined and cross-examined intheusual way.Moreover, asthe respondent had
tendered himas a witness andexamined himin the Appeal Court,
1 think that there was on his part a sufficient express consent to theadmission of. Mr. Schneider’s evidence to satisfy the provisions ofsection 126 of the Evidence Ordinance, if that section is applicableto the present case.
(iv.) On the facts, I have nothing to add to the judgments ofLascelles A.C.J. and Middleton JM except that, in view of therelations between the parties, the fact that the acts attributed to theappellant are not in the nature of common theft, but are acts of akind not unlikely to occur in the course of land disputes, and theevidence of Mr. Schneider as to what passed between him and therespondent (I have excluded from consideration Mr. Schneider’sexpression of a personal opinion on the point), I think it is impossibleto say that the respondent acted in bad faith. Great weight wouldhave attached to Mr. Jayewardene's argument that we ought notto reverse the finding of the District Judge on this point (see Metro-politan By. Go. v. Wright;1 Cox v. English, Scottish, and AustralianBankt Ltd.2) but for the facts that the District Judge seems to haveconsidered that dolus mains results irresistibly and necessarily fromthe absence of reasonable and' probable cause, and that we havenow before us the evidence of Mr. Schneider.
(v.) Mr. Jayewardene's final point was that even if proof of dolusmplus was not forthcoming against the respondent, it was: clear that•his servant Joseph Pieris had acted in bad faith, and that thereforethe resporfdent was liable, as master, for his servant's tort. Mr.Jayewardene relied, in support of this contention, on the recent
* English decisions, in which it has been held that an action for«
» (1886) 11 A. C. 152.* (1905) A. C' 168.
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malicious prosecution or malicious libel (Gomford v. Carlton Bank,Cithern9 Life Assurance Co. v. Brown*) will lie against a corporation.Gomford v. Carlton Bank seems to me to have no application to thepresent case. It had been held by Fry J. in Edwards v. MidlandBy. Co.,3 contrary to the opinion of Alderson B. in Stevens v.Midland Countries By,,4 that an action for malicious prosecutionwould lie against a corporation. In the argument of Abrath v. N.Eastern Ry. Go. in the Court of Appeal, Sir F. Herschell, S.G.,counsel for the Bailway Company, stated in effect that, if necessary,he should contend that Fry J.’s judgment in Edwards v. MidlandBy. Co. was unsound.5 The Court decided the case, however onthe ground that there was reasonable and probable cause. In theHouse of Lords Lord Bramwell in an elaborate speech6 enunciatedthe view that no action for malicious prosecution will lie against acorporation, inasmuch as " a corporation is incapable of maliceor of motive.” Lord Fitzgerald7 and the Earl of Salbome, L.C.,6however, expressly declined to commit themselves to thisproposition. In this state of the authorities the question wasdirectly raised before Darling J. in Comford v. Carlton Bank, and itwas held in substance by that learned Judge9 that, although in asense a corporation is as incapable of malice as it is of wit, yet inview of the fact that corporations are for civil purposes regarded aspersons, the ordinary doctrines of agency may fairly be applied tothem. He held, therefore, that the action for malicious prosecutionlay. In the Court of Appeal10 it was conceded at the Bar that theriding of Darling J. on this point was right, and the law was laiddown in similar terms as to malicious libel by the Privy Councilm the case of Citizens» Life Assurance Co. v. Brown (ubi sup.). It isobvious that,* so far, none of the authorities I have been dealingwith have any bearing on the present case. They merely decidethat malice in law may be imputed to a body which is incapableof entertaining malice in faot.
But Citizens' Life Assurance Co. v. Brown involved another point.In that case a superintendent of the appellant Company issued acircular in regard to the respondent containing statements whichhe knew to be untrue. He had no actual authority, express orimplied, to write the libel complained of. But the Privy Councilheld, on the construction of the terms of his engagement by theappellant Company, that the act came within vthe scope of hisemployment, and that the Company, on the principle of the cases.,of which Barwick v. English Joint Stock Bank 11 is the locus classicu
> (1£99) 1 Q» B. 392; (1900) 1 Q. B. 22.2 Cm) A. C. 423.
» 3 Q. B. D. 287.
(1854) 10 Ex. 352.
H Q. B. D. at p. 446. note (7).
611 A. C. at p. 250." 11 A. C. at* p. 254.811 A. C.*at p, 256.
(1899) 1 Q. B. 392.
(1900) 1 Q. B. 22.
• n (1867)’ L. R. 2 E*. 259.
1907.
October 2.
WoodBbktok J.
1907.October 2.
WoodRenton j.
was answerable, for it. I will assume that it could be shown, on theevidence before us, that the institution of criminal proceedingsfor the protection of the respondent's property came within thescope of Joseph Pieris, employment. But even so, it must beestablished judicially that he acted maliciously before we impute hismalice to hi6 master. No such finding exists here. The plaint isinnocent of any alternative suggestion of vicarious malice. As Ihave pointed out already, the District Judge has considered malicemainly as the necessary result of the absence of reasonable andprobable cause, and, in the form in which the case was presented tohim, his attention Was centred on the conduct of the respondentas the point on which the decision must turn. On the hearing of theappeal the same ground was maintained. It is only now, on -thehearing in review, that we are invited to decide the case on anissue which has neither been tried nor framed. In his petition forleave to appeal to the Privy Council, the appellant relies on-thestatement of Lascelles A.C.J. that “ the evidence points to theconclusion that Joseph Pieris was the person who was responsiblefcr the false charge." The Acting Chief Justice, however, does notsay that Joseph Pieris made the false charge in question maliciously.He proceeds immediately to add that it was “ supported by a con-siderable body of evidence." I cannot regard any dictum of thiskind as a decision which can entitle us now to give judgment for theappellant on the ground of imputed malice.
Judgment in appeal upheld.