032-SLLR-SLLR-2007-V-2-JAYAWICKREMA-v.-LANKA-ELECTRICITY-AND-ANOTHER.pdf
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JAYAWICKREMAv
LANKA ELECTRICITY BOARD AND ANOTHERCOURT OF APPEAL.
ABDUL SALAM, J.
CA 450/2003
D.C. GAMPAHA 39198/M
SEPTEMBER 20, 2007
Malicious Prosecution – Reasonable and Probable cause – Ingredientsnecessary – Disconnection of electricity supply – Illegally extendingsupply to disconnected area – Electricity Act – Sections S9(1), 67 -Amended by Act No. 15 of 1964 — Sections 4 and 5 — Acquitted inMagistrate's Court. — Code of Criminal Procedure Section 136(b) -Malicious arrest? – Malicious proceedings? – Animus injuriandi.
Due to non-payment of electricity bills, the defendant discontinued theelectricity supply to the main house, whilst the plaintiff retained the supplyto the remaining portion. Upon a complaint raised; after inspection toascertain whether the plaintiff had illegally extended the supply ofelectricity to the area, covered by the disconnection being satisfied as tothe genuineness of the complaint, the 1 st respondent withdrew the supplyof electricity to the remaining section of the house as well. The plaintiffwas then charged in the Magistrate's Court for the alleged violation of theprovisions of the Electricity Act. After trial he was acquitted. The plaintiffthereafter filed an action to recover damage arising from malicious arrestfollowed by malicious proceedings. The trial Court dismissed the plaintiff'saction.
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Held:
In a malicious prosecution case, it is fundamental that the plaintiff isobliged to establish the following.
The defendant had instigated the proceedings.
That those proceedings culminated in the plaintiff's favour.
That the defendant's conduct was without reasonable and probablecause.
That the prosecution was tainted with malice. '
That the plaintiff has suffered damages as a result.
Irrespective of the outcome of the criminal proceedings and themaintainability of the charges preferred against the plaintiff, theplaintiff himself has admitted that he has violated the provisions of thelaw by extending the supply of electricity. The police had beeninfluenced by the following considerations, when they decided toarrest the plaintiff and charge him.
the inspection carried out by the 2nd defendant in the presence ofthe police officer.
discontinuance of supply of electricity to a portion of the house ofthe plaintiff.
admission made by the defendant that he had violated the terms ofthe contract pertaining to the supply of electricity, by means of anunauthorised extension
The acquittal of the plaintiff apparently was based on the non-production of the wire alleged to have been used by the plaintiff for thecommission of the offence and certain contradictions.
It is settled law that no cause of action shall accrue for the institutionof the malicious prosecution unless criminal proceedings are Initiatedwithout reasonable and probable cause. Reasonable and probablecause is an honest belief in the guilt of the accused based upon a fullconviction, founded upon reasonable grounds, of the existence of astate of circumstance which assuming them to be true, wouldreasonably lead any ordinarily prudently and cautious man placed inthe position of the accuser to the conclusion that the person chargedwas probably guilty of the crime imputed.
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To succeed in an action of this nature the plaintiff must establish thatthe charge was false and false to the knowledge of the persons givingthe information that, it was made with a view to prosecution that it wasmade animo injuriandi, and not with a view to vindicate public purposeand that it was made without a probable cause.
Per Abdul Salam. J.
"The material relevant shows nothing more than the defendants havingset rolling a stone of reasonable suspicion pertaining to the commissionof an offence against the plaintiff, as permitted by law, which alone isinsufficient to hold the defendants' responsible for malicious prosecution,malicious arrest or causing nuisance".
Per Abdul Salam, J.
“It is true that the District Judge has failed to consider the evidenceadduced by the plaintiff in its proper perspective, however, it must beobserved that even if she had considered the evidence in the mannersuggested, yet she could not have come to a different finding to what shein fact arrived at".
APPEAL from a judgment of the District Court of Gampaha.
Cases referred to:
Sarawanamuttu v Kanagasabai 43 NLR 357.
Hicks v Faulkner 1881 8 OBJ 167 at 171.
Karunaratne v Karunaratne 63 NLR 365.
Corea v Petris 9 NLR 276, 277.
Chandana Premathifake for plaintiff-appellant.
Sobita Rajakaruna SSC for defendant-respondent.
Cur.adv.vult.
October 1, 2007
ABDUL SALAM, J.
This is an appeal from the judgment of the District Judge ofGampaha dismissing the action of the plaintiff which wasfounded inter afia on malicious prosecution. The plaintiff-appellant (hereinafter referred to as the "plaintiff") institutedaction against the 1st defendant-respondent (hereinafter
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referred to as the 1st defendant and the 2nd defendant) torecover damages, arising from an alleged maliciousprosecution, causing nuisance and for wrongful disconnectionof the electricity supply to the premises of the plaintiff.
Briefly stated the facts were these:-
The plaintiff entered into two separate agreements with the1st defendant for the use of electricity at his residence, bymeans of two separate meters bearing Nos.,48614701 and48596911. Accordingly the 1st defendant supplied electricityto the plaintiff to two different sections of the plaintiff'sresidence.
Due to non-payment of electricity bills, the 1st defendantdiscontinued the electricity supply to the main section of theplaintiff's house, while the plaintiff retained the supply to theremaining portion of the same. Upon a complaint received, the1st defendant carried out an inspection through the 2nd, defendant, to make certain as to whether the plaintiff hadillegally extended the supply of electricity to the area, coveredby the disconnection. Being satisfied as to the genuineness ofthe complaint, the 1st defendant withdrew the supply ofelectricity to the remaining section of the plaintiff's house aswell.
Subsequently, the plaintiff was arrested by Sapugaskandapolice and produced before the Magistrate's Court ofGampaha. The plaintiff admitted having extended the supply ofelectricity. The reason assigned for the extension was thecompelling necessity to use a toilet situated within that part ofthe house from which the supply of electricity had been earliersuspended. The plaintiff was then charged in the Magistrate'sCourt for the alleged violation of certain provisions of theElectricity Act. After trial he was acquitted by the learnedMagistrate. The plaintiff then filed the present suit againstdefendants in order to safeguard his interests and to recoverdamages arising from malicious arrest followed by maliciousproceedings.
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The defendants in their answer inter alia took up the positionthat on information received, an inspection was carried out, atthe residence of the plaintiff and it was, plainly evident that theplaintiff had extended electricity from the adjoining premises tothe mother portion of the house from which the supply ofelectricity had been disconnected on a previous occasion.Hence, the defendants were compelled to disconnect theremaining electricity line of the plaintiff.
As regards the alleged malicious arrest, the defendantsmaintained that the plaintiff was arrested by Sapugaskandapolice, as he had committed a cognizable offence. Thedefendants specifically took up the position that the said arrestof the plaintiff and the resultant criminal proceedings institutedby Sapugaskanda Police were not tainted with malice asasserted in the plaint. As a matter of law the defendants raisedthe question as to the maintainability of the action, in view ofSection 59(1) of the Electricity Act.
It is common ground that the plaintiff had entered into twoseparate agreements with the Ceylon Electricity Board for thesupply of electricity to his residence. The learned Senior StateCounsel, on behalf of the defendants, has contended that theadmission made by the plaintiff, as to the extension of thesupply of electricity from the backside meter using a halfmillimeter wire, to have an additional lamp should beconsidered as being fatal to the plaintiff's case. He has urgedthat irrespective of the fact that the extension was limited toone lamp, the mere violation of the Electricity Act, by extendingthe supply of electricity, renders the extension as illegal.
The learned District Judge after trial dismissed the plaintiff'saction, due to the failure on the part of the plaintiff to establishthe ingredients necessary to succeed in a maliciousprosecution suit. She in her judgment concluded that thedefendant has not committed any offences under the ElectricityAct. The plaintiff contends that the judgment of the learnedDistrict Judge is contrary to law, in that she could not have
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come to the decision she reached, having come to theconclusion that the plaintiff has not committed any offenceunder the Electricity Act. The learned Counsel of the plaintiffhas further submitted that the judgment of the learned DistrictJudge contains only a narration of the evidence and not ananalysis of it. He has further urged that the learned DistrictJudge was totally unmindful of the legal principles applicable toillegal arrest, malicious prosecution and corporate liability inthat regard, The learned Counsel of the plaintiff strenuouslyargued that even though the learned District Judge hasgenerally narrated or reiterated the facts satisfactorily, she hascome to several erroneous inferences and conclusions.
In a malicious prosecution case, it is fundamental, that theplaintiff is obliged to establish the following.
the defendant had instigated the proceedings.
that those proceedings culminated in the plaintiffs favour.
that the defendants conduct was without reasonable andprobable cause.
that the prosecution was tainted with malice.
that the plaintiff has suffered damages as a result.
The defendants have not seriously denied the imputationthat the 2nd defendant on behalf of his employer the 1stdefendant provided the information to the police, regarding thealleged illegal extension of electricity. It is significant to notethat the Magistrate Court proceedings had commenced at theinstance of the police under Section 136(b) of the Code ofCriminal Procedure Act and not by way of a private plaint.Admittedly, it is the police officer who has taken the plaintiff intocustody on the first information provided by the 2nd defendant.On a reading of the first information, it is quite clear that the2nd defendant has merely stated the facts as he believed themto the police. On a reading of the evidence adduced at the trial
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it appears to me, as being unsafe to hold the defendantsaccountable, for initiating criminal proceedings against theplaintiff, as they have not played any significant role to theextent of being actively instrumental in bringing a criminalprosecution. Admittedly, the 2nd defendant has had nopersonal interest in the matter. The 1st defendant is a statutorybody, enjoying the monopoly over the supply of electricalenergy. In doing so the 1st defendant had certain statutoryobligations to ensure that the consumers do not violate theprovisions of the Ceylon Electricity Board Act and also theterms and conditions of the agreements entered into by themfor consumption of electricity.
It is laid down that in an action for malicious prosecution theplaintiff must prove that the criminal proceedings wereinstituted by the defendant, that is to say, that the defendant setthe law in motion against the plaintiff. In order to establish thatthe defendants set the criminal law in motion against theplaintiff there must be something more than the mere giving ofinformation to the police. As has been laid down in the case ofSarawanamuttu v KanagasabaW there must be the formulationof a charge or something in the way of solicitation, request orincitement of proceedings. Admittedly the 2nd defendant hasnot made any solicitation, request or incitement of criminalproceedings other than making a first complaint, regarding theinspection carried out by him, in response to a complaintreceived by the 1st defendant.
The evidence led at the trial points to the fact that theplaintiff was arrested by Sapugaskanda police and latercharged by the same police on behalf of the State. Irrespectiveof the outcome of the criminal proceedings and themaintainability of the charges preferred against the plaintiff, theplaintiff himself has admitted that he has violated the provisionsof the law by extending the supply of electricity. On a carefulscrutiny of the material available it appears that the police hadbeen influenced by the following considerations, when theydecided to arrest the plaintiff and charge him in the Magistrate'sCourt.
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The inspection carried out by the 2nd defendant in thepresence of a police officer.
Discontinuance of supply of electricity to a portion of thehouse of the plaintiff.
Admission made by the defendant that he had violated theterms of the contract pertaining to the supply of electricity,by means of an unauthorised extension.
In the above circumstances, in my judgment it is. hardlypossible, even if the learned District Judge had properly lookedout for proof of ingredients relating to "malicious prosecution",to attribute liability on the defendants for having set the criminallaw in motion.
According to the amended charge sheet marked as P19, theplaintiff stood charged in the Magistrate Court, for illegally andwithout the prior approval of the General Manager or any otherauthorized officers of the Electricity Board of Sri Lanka,extending the supply of electricity from one section of his houseto another section from which the supply of electricity had beenwithdrawn (for default of payment of bills) an offencepunishable under Section 67 of the Electricity Act read togetherwith Sections 4 and 5 of the Electricity (Amendment) Act No. 15of 1984.
The learned Magistrate after trial acquitted the defendant,mainly due to the failure on the part of the prosecution toproduce the wire, alleged to have been used for the extensionof electricity and certain contradictions that created areasonable doubt in his mind, as to the guilt of the accused.
The plaintiff has submitted that he was charged in theMagistrate's Court under a wrong section, which wasinapplicable to the alleged extension. He has furtheremphasized that the learned District Judge having analyzed theevidence, came to the conclusion that the plaintiff has notcommitted any offence, referred to in the charge sheet P19.
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Learned District Judge in this regard observed that the onlyoffence the defendant could have committed was under Section67(E) which provided that whoever supplies any other personwith any part of the energy supplied to him by the licenseeor the board shall be guilty of an offence … (Emphasis ismine). As has been observed by the learned District Judge, theplaintiff cannot be even remotely be held liable for violatingSection 67(E) as he had not supplied energy to any otherperson as envisaged by Section 67(E). In other words what hasbeen alleged against the plaintiff was that he had suppliedenergy by means of an extension wire to a section of hishouse.
The learned Counsel of the plaintiff has submitted that asthe criminal proceedings had culminated in an acquittal, it wastotally unnecessary for the District Judge to have reconsideredthe same in her judgment though she has concluded that for anoffence under Section 67(E) to be committed, the plaintiffshould have supplied any other person with the energy*supplied to him by the CEB. On the contrary, the allegation wasthat he extended the line from one part of his house to the othersection of the house regulated by two different meters. This actof the plaintiff, it was submitted by the learned Counsel is notan offence.
No doubt, the learned District Judge has delved into detailsregarding the extension of the electricity supply; with a view tofind out whether in fact he had committed an offence, under theElectricity Act or any other law. At the end of a careful andprecise exercise, she came to the conclusion that no offencehad been committed by the plaintiff. Even though the finding ofthe learned District Judge on this matter is favourable to theplaintiff, learned Counsel has attacked the same on the basisthat such a finding is totally uncalled for. It is to be observedthat the learned Magistrate in his order acquitting the accusedhas not considered as to whether the evidence adducedagainst the plaintiff had revealed the commission of an offencevide P20. The acquittal of the plaintiff apparently was based on
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the non production of the wire alleged to have been used by theplaintiff for the commission of the offence and certaincontradictions arose in the presentation of the case for theprosecution.
Learned Counsel of the plaintiff has strenuously argued onthe basis that the Trial Judge has failed to consider, "maliciousarrest" as a ground for awarding damages. The Counsel of theplaintiff has also contended that the Trial Judge has misappliedthe provisions of Section 59(1) of the Electricity Board Actwhich protects an officer who acts in good faith.
It is appropriate at this stage to focus the attention to theargument advanced on behalf of the plaintiff that the TrialJudge has failed to consider the different aspects of theevidence placed by the plaintiff. It is true that the learnedDistrict Judge has failed to consider the evidence adduced bythe plaintiff in its proper perspective. However, it must beobserved that even if she had considered the evidence, in themanner suggested by the learned Counsel of the plaintiff, yetshe could not have come to a different finding to what she infact arrived at.
It is quite surprising that the learned District Judge has notproperly addressed her mind to find out proof in the plaintiffscase itself, as to the existence of "want of reasonable andprobable cause", in initiating criminal proceedings. It is settledlaw that no cause of action shall accrue for the institution ofmalicious prosecution suit, (however malicious the criminalproceedings may be) unless criminal proceedings are initiatedwithout reasonable and probable cause. This is considered tobe a difficult area in a malicious prosecution suit. It is sobecause it is at this stage the plaintiff embarks upon themanifestly difficult task of establishing the negative.
A typical explanation of the expression "reasonable andprobable cause" is that of Hawkins J. in the case of Hicks vFaulkner at 171, which reads as follows:
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*7 should define reasonable and probable cause to be,an honest belief in the guilt of the accused basedupon a full conviction, founded upon reasonablegrounds, of the existence of a state of circumstances,which, assuming them to be true, would reasonablylead any ordinarily prudent and cautious man, placedin the position of the accuser, to the conclusion thatthe person charged was probably guilty of the crimeimputed."
Our courts have on many occasions examined theingredients necessary to establish a cause of action formalicious prosecution. It is pertinent to note the dicta ofBasnayake C.J. in the case of Karunaratne v KarunaratneMwhich emphasized the need to look for negative proof that hasto come from the plaintiff. The relevant part of the saidjudgment reads as follows:
"To succeed in an action of this nature the plaintiffmust establish that the charge was false and false tothe knowledge of the person giving the information,that it was made with a view to prosecution, that it wasmade animo injuriandi and not with a view tovindicate public justice and that it was made without aprobable cause”.
Having perused the proceedings had before the learnedDistrict Judge, I find it difficult to arrive at the conclusion thatthe plaintiff had proved the criminal prosecution initiatedagainst him to be false to the knowledge of the 2nd defendantin view of the admitted extension of the supply of electricity bythe plaintiff. It is significant to note that the admission madewas not the mere extension of electricity but an admission thatit was illegal to the knowledge of the plaintiff himself.
One of the earliest authorities which laid down theingredients necessary in an action for malicious prosecutioncan be usefully referred to from the judgment of Corea vPeirisw at 277 in which the ingredients were summarized asfollows:
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"in order to establish his cause of action it isincumbent upon the plaintiff to prove (1) that he wasinnocent and that his innocence was pronounced bythe tribunal before which the accusation was madef(2) that there was a want of a reasonable andprobable cause by the prosecution, or as it mayotherwise be stated, that the circumstances of thecase were such as to be in the eyes of the judgesinconsistent with the existence of reasonable orprobable cause, (3) the proceedings of which thecomplaints were initiated were with the maliciousspirit that is from an indirect and improper motive andnot in furtherance of justice."
The authorities cited above leave no doubt that it is essentialtor a cause of action for malicious prosecution to plead andestablish that the defendant was instrumental in the institutionof prosecution in the sense of formulating a charge orsomething in the nature of solicitation, request or incitement ofthe proceedings as set out by His Lordship Howard C.J. in thecase of Sarawanamuttu. (supra)
The complaint made by the 2nd defendant in his capacity asan officer of the 1st defendant has been marked as P17.According to P17 the complaint has been made upon thecompletion of the inspection. The plaintiff too in his evidencehas admitted that he has done the extension of the supply ofelectricity illegally. The question that arises for consideration atthis stage is not whether the extension was actually legal, butwas it considered as being illegal in the circumstances. Theplaintiff himself thought that it was illegal. In such a situation Ifind it difficult to blame the 2nd defendant for having consideredit as illegal due to mis-apprehension of the law or mistake offact.
The plaintiff in his attempt to justify the said extension hadthe occasion to state that he had to go to the toilet frequentlyduring night as he was suffering from diabetes and high bloodpressure. The said extension according to him was to
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overcome this difficulty. The learned additional Solicitor-General has submitted that the act complained of against theplaintiff namely extending the electricity supply into an areacovered by the suspension of the supply of electricity is aflagrant violation of the terms and conditions of the remainingcontract with the defendant.
The fact that the plaintiff admittedly had extended the supplywithout the approval of the 1st defendant, the admission madeby the plaintiff that to his knowledge such extension wasunlawful, the circumstances which led the plaintiff to have suchextension of the electricity supply, the fact that the plaintiff hadallegedly defaulted the payment of electricity bills pertaining toa section of the same house and the nature of the official dutyperformed by the 2nd defendant in his capacity as the electricalsuperintendent of statutory body, point to the existence ofreasonable and probable cause for setting the law in motionagainst the plaintiff. The plaintiff has failed to adduce sufficientevidence to warrant the conclusion that there was absence ofreasonable and probable cause in relation to the prosecutioninitiated against him. The material revealed in the course of thetrial, shows nothing more than the defendants having set rollinga stone of reasonable suspicion (pertaining to the commissionof an offence) against the plaintiff, as permitted by law,which alone is insufficient to hold the defendants responsiblefor malicious prosecution, malicious arrest or causingnuisance.
In view of the above circumstances, it is my consideredopinion that even if the learned District Judge had properlyaddressed her mind to the relevant issues and analyzed theevidence as required by law, yet the conclusion would bethe same as what she had decided by the judgment underappeal.
In view of the above, the question as to the applicability ofSection 59 of the Ceylon Electricity Board Act does not arise forconsideration.
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For the foregoing reasons, the appeal of the plaintiff isdismissed.
Taking into consideration the health condition of the plaintiff,I make no order as to costs.
Appeal dismissed.