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"Present : The Hon. Mr. A. Gr. Lascelles, Acting Chief Justice,and Mr. Justice Middleton.
COREA v. PIERIS1). 0., Kurunegala, 2,740.
Malicious prosecution—Actio de injuria—Acquittal—Onus—Animus injuriandi—
English Law—Roman-Dutch Law—Counsel giving evidence for their clients.
In an action de injuria arising out of a criminal prosecution, the fact thatthe plaintiff has been acquitted does not throw on the defendant the onus ofjustifying the prosecution.
Both according to the principles of the Boman-Dutch Law and the EnglishLaw, in an action for malicious prosecution the onus is always on the plaintiffto prove—(1) that he was innocent, and that his innocence was pronouncedby the tribunal before which the accusation was made; (2) that there wasa want of reasonable and probable cause for the prosecution, or, as it mayotherwise be stated, that the circumstances of the case were such cm to bein the eyes of the Judge inconsistent with the existence of reasonable andprobable cause; (3) that the proceedings of which he complains were initiatedin a malicious spirit, that is, from an indirect and improper motive, and notin furtherance of justice.
Abrath v. The North-Eastern Railway Co. (1) and Moss v. Wilson (2)followed.
There is' no rule of evidence which prevents counsel from giving evidenceon behalf of their clients.
HE plaintiff sued the defendant for damages .for maliciousprosecution. The District Judge (Allan Beven, Esq.) gave
judgment for the plaintiff for Es. 10,000. The defendant appealedfrom this judgment.At the trial Mr. Van Langenberg, who
appeared with Mr. Schneider for the defendant, proposed to callMr. Schneider as a witness for the defence to show that the defen-dant in instituting criminal proceedings ■ acted on Mr. Schneider’sadvice.
The District Judge, on objection taken by the plaintiff’s counsel,refused to allow Mr. Schneider to be called as a witness, as he wasone of the counsel for the defendant. But the Supreme Court inAppeal (disagreeing with the District Judge’s ruling) heard andconsidered Mr. Schneider’s evidence in deciding the appeal.
Van Langenberg (Schneider with him), appeared for the appellant.H. J. C. Pereira (E. IE. Perera with him), for the respondent.
Cur. adv. vult.
(1) (1883) 11 Q. B. D. 440.(2) (1905) 8 N. L. R. 368.
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27th August, 1906. Lascellbs A.C.J.—
This is ap appeal from a judgment of the Distriot Judge of Kurune-gala awarding plaintiff Rs. 10,000 as damages for malicious prose*oution by defendant. The conditions which are necessary tosuccess in an action of this kind are laid down as follows by LordJustice Bowen in Abrath v. North-Eastern Railway Co. (1).
In order to establish his cause of action it is incumbent upon theplaintifi to prove—(1) that he was innocent, and that his innocencewas pronounced by the tribunal before which the' accusation wasmade; (2) that there was a want of reasonable and probable causefor the prosecution, or, as it may otherwise be stated, that thecircumstances of the case were such as to be in the eyes of the Judgeinconsistent with the existence of reasonable and probable cause;(3) that the proceedings of which he complains were initiated in amalicious spirit, that is, from an indirect and improper motive, andnot in furtherance of justice.
It is not disputed that the plaintiff has complied with the first ofthese conditions. He was discharged by a competent Court, andhe is entitled to the full benefit of the discharge. The appellant nowcontends that the plaintifi has failed to prove that the charge wasmade without reasonable ground and from any indirect and impropermotive.
The respondent, it should be noticed, contended, upon thestrength of a passage at p. 145 of M. de Villiers’ Translation ofVoet’s title De Injuriis, that where the criminal charge has failedit is incumbent upon the defendant in an action for malicious prose*cution to justify the prosecution.
It is only necessary to state with regard to this contention thatthe passage relied on, which appears to be based on a treatisepublished by Weber, a German Jurist, in 1820, does not representthe law which is in force in Ceylon. It is well settled by decisions ofthis Court, the last of which is the case of Moss v. Wilson (2) that thelaw of Ceylon is in this respect the same as that in force in England.
The material facts are the following:—
The defendant, who lives in Colombo, owns estates in the districtsof Chilaw and* Kurunegala. The plaintiff, who is an advocatepractising at Chilaw, owns considerable estates in the same districts.There have been land disputes between plaintiff and the defendant,and an action was pending on appeal with regard to another land atthe time when the plaintifi was charged with criminal trespass on aland known as Madugasagara.
(1) (1863) 11 Q. B. D. 440 at p. 456; affirmed- by the House of Lords.
(11 Appeal Cases 247).(2) (1905) 8 N. L. B. 368.
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1009. The title of the defendant to Madugasagara depended upon aAugust 27. donation by the original owner and a conveyance by the donee tor..«im.T.i«i the defendant; that of the plaintiff upon a revocation of theA.C.J. deed of gift and a subsequent conveyance of an undivided half share.
Since 1902 negotiations had been pending for a settlement of thisdispute, and the defendant’s manager, Joseph Pieris, seems to haveagreed to refer the matter in dispute to the arbitration of Mr. Martin,who had acted at different times as proctor for both parties. Onthe 6th February, 1904, Joseph Pieris telegraphed to the AssistantGovernment Agent of Chilaw that the plaintiff accompanied by alarge force of men had on 4th February forcibly entered Madugas-agara, broken the door of the bungalow, and removed furniture,fowls, and goats to the value of Rs. 500. Inquiries were madewith the result that Joseph Pieris was cited before the Police Magis-trate to make good his charges, and bail was taken for his appear-ance on the 2nd March.
The District Judge has, I think, fairly described Joseph Pieris’position at this stage. He was practically on his trial for givingfalse information to a public servant, and was forced to go intoCourt more for his own sake than for his master’s. It is not sug-gested that the defendant was in any way responsible for theoriginal complaint to the Assistant Government Agent, which wasthe foundation of the subsequent proceedings. Joseph Pieris thendespatched one Usubu Lebbe, who had been for many years akangany in defendant’s service, to defendant, who, after receivingUsubu Lebbe’s statement and consulting his lawyer, gave instruc-tions for the institution of criminal proceedings.
The liability of the defendant in this action depends upon the view,which is taken of the action which he took on Usubu Lebbe’s complaint.
Usubu came as the messenger of Joseph Pieris. His statementwas to the effect that the plaintiff had forcibly entered his bungalowat Madugasagara, broke furniture, and carried off goats, fowls,and other property. Usubu did not pretend to have been a witnessof the alleged offences. He stated that he had visited the premisessubsequently and had seen broken furniture and indications of theraid; and he gave the names of the witnesses who* could prove thecharge, including that of Meera Lebbe, the 'conductor at the estate,and that of the village headman. Defendant at once took Usubu-Lebbe to Mr. Schneider, his standing counsel, and Mr. Schneideradvised criminal proceedings, which were thereupon instituted in thePolice Court of Kurunegala.
At the trial before the District Court the Judge would not allowMr. Schneider, who appeared as junior counsel for the defendant,
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to give evidence, but in view of the importance of -obtaining Mr.
Schneider’s testimony as to the conduct of defendant at this crucial Au9ust 87-point in the case, and in the absence of any rule of evidence to the Lasckuwcontrary, we have allowed Mr. Schneider to be examined and cross- A C-J-examined before us.
The question whether defendant had or had not reasonablegrounds for taking criminal proceedings largely depends upon theinherent improbability or otherwise that a gentleman in plaintiff’sposition would have been guilty of the alleged offence.
If the charge had been one of ordinary larceny, of stealing fowlsand goats, the improbability of plaintiff’s guilt would have been sogreat that nothing short of the strongest evidence would havejustified criminal proceedings. But,. although charges of theft weresubsequently formulated against plaintiff, Mr. Schneider tells usthat he regarded the plaintiff’s alleged acts as being in substancean attempt to obtain possession of the estate by force, and thealleged thefts as having been committed by the plaintiff’s followersin execution of the plaintiff's project. When it is remembered thatthe plaintiff has on three other occasions, as the District Judge finds,been charged with criminal trespass, in one case on the complaintof tiie defendant, it is not surprising that neither the defendantnor his legal adviser saw any great improbability in Usubu Lebbe’scomplaint being well founded. Whilst it is true that a person indefendant’s position cannot shelter himself behind his legal adviser,it is nevertheless a circumstance that tells in his favour, that beforeinitiating proceedings he submitted .the information at his disposalto an experienced lawyer and acted on his advice. In doing so hedid what a man of ordinary prudence would have done.
The evidence, in my judgment, does not warrant the finding thatthe charge was made without reasonable ground. The complaintwas made at the instance of a responsible person, namely, thedefendant’s manager, Joseph Pieris; it was corroborated by thestatement of a servant of many years’ standing, who gave the namesof witnesses who were prepared—as they subsequently did—tosupport the charge. There is nothing to show that any furtherinquiry which it was in defendant’s power to make would have shownthe complaint^to be untrue.
I am also unable to accept the finding of the District Judge thatthe defendant acted in bad faith, and I find it difficult to follow thereasoning which has led him to this conclusion. The District Judgeseems to favour the suggestion that defendant’s object in makingthese charges was to prejudice the minds of the Judges of this Courtin a case between the parties which at that time was on the list for
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hearing in appeal. This suggestion seems to me to be fanciful andfar-fetched and to be rebutted by the evidence which shows that thecharges were not concocted in the first instance by the defendant,but were the direct outcome of the telegram despatched by JosephPieris without the knowledge of the defendant.
The District Judge attaches much weight to the defendant’sdenial in the Police Court proceedings of all knowledge of the plain-tiff’s nlftim to Madugasagara and to his statement that he had norecollection of a letter addressed to him in 1902 by plaintiff’s proctorwith regard to this claim. The District Judge considers that thedefendant deliberately suppressed all knowledge of the receipt ofthis letter in order to make things look blacker against Corea and toinduoe the Magistrate to issue process, and that he thus acted malafide.
But the fact that plaintiff had a claim would be no defence to acharge of criminal trespass on land in occupation of defendant, stillless to a charge of theft. The evidence of defendant in this respectmay have been wanting in candour and even deliberately untrue,but it would be unreasonable to infer from this that defendant inbringing this charge was actuated by indirect and improper motives.
Mr. Schneider tells us that defendant, when he came to consulthim with TJsubu Lebbe, seemed to be much alarmed, and that hestated that unless he took some steps there would be no protectionfor any of his estates. I see no reason to believe that defendant’salarm for the safety of his property was simulated. The evidence,in my opinion, points to the conclusion that Joseph Pieriswas the person who was responsible for this false charge, and thatboth defendant and his lawyer were misled by Joseph Pieris’ com-plaint, which was supported by a considerable body of evidence.
The evidence does not in my judgment justify a finding that thecircumstances of this are inconsistent with the existence of reason-able and proper ground for the prosecution, or that defendantinitiated these proceedings in a malicious spirit.
I would set aside the judgment of the Court below and dismiss theplaintiff’s action with costs.
The matters to be proved are, I agree, as Lord Justice Bowen putsthem in Abrath v. The North-Eastern Railway Co. (1).
The learned counsel for the appellant has, however, argued thatunder the Roman-Dutch Law the burden of proof is on the defendantto justify the step he took on the prosecution of the plaintiff and
(X) (1883) 11 Q. S. D. 440 at p. 4S5; affirmed by the House of Lords.
(11 Appeal Cases 247). '
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quotes the annotations to Villiers’ translation of Voet (47, 10, 12),derived from ’the opinion of a German Jurist named Weber, whoappears to have written books on Injuries in 1771 and 1820 publishedat Leipsie.
If, however, we examine the reasoning of Villiers leading up tothis opinion of Weber’s we see that it is based on the presumptionarising from an act of aggression; that is to say, if A commits anact of aggression on B the presumption is that B intended to injure A,and so that if the act is admitted the burden is on B to rebut theanimus injuries.
But the case of a malicious prosecution, I take -leave to think, isdifferent. The prosecution is not an act of aggression, but under-taken as a general rule for the just punishment of an offenderagainst the law, and no presumption of malice arises from itsinstitution. It is said, however, that if the person prosecuted isacquitted the charge must have been untrue or reckless, and thattherefore the presumption of animus injuries arises. It by no meansnecessarily follows, however, that because an accused person isacquitted by the Magistrate the charge was untrue or was falsely orrecklessly made. The case may fail for want of due proof or falsityof the evidence, matters which may be quite beyond the control ofthe prosecutor or complainant.
I would hold therefore that as no presumption of animus injurianecessarily arises from the acquittal by a Magistrate of a personprosecuted, that the burden of justifying the prosecution is not onthe prosecutor, if sued for malicious prosecution—even under theBoman-Dutch system of law—but that the burden is on the plaintiffof proving animus injuriandi as in the English Law.
So far as I can judge from the reported cases cited, it would seemthat this Court in cases of malicious prosecution has adopted theprinciples held to be applicable to such actions in the English Courts,and there does not appear to be any good reason shown why weshould take a new departure. I have gone into the evidence inconsultation with my Lord, and I agreed that it was important andwithin our province to hear the evidence of Mr. Schneider. Thatevidence, in my opinion, had a most important bearing on themotive and intention of the defendant.
On the inferences drawn from the facts and the findings of theDistrict Judge, I agree entirely with the Chief Justice, and hold thatthe plaintiff has failed to establish both absence of reasonable andproper cause and a malicious intention on the part of the defendant,and I agree that the judgment must be set aside and judgmententered for the defendant, and the appeal allowed with costs.
COREA v. PIERIS