007-SLLR-SLLR-2002-3-KALU-BANDA-v.-RAJAKARUNA.pdf
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Sri Lanka Law Reports
[2002] 3 Sri l.R.
KALU BANDA
v.RAJAKARUNA
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CALA NO. 260/2000DC KULIYAPITIYA NO. 11875/MFEBRUARY 12, 2002
Damages – Damages for malicious prosecution – Criminal proceedings pending- Is there a cause of action? – Roman Dutch Law – Actio injuriam – Non-applicability of English Law.
The plaintiff-respondent instituted action seeking damages alleging that the defendantpetitioner without any reasonable and probable cause maliciously prosecuted himby instituting criminal proceedings in the Magistrate's Court. The criminal actionin which the plaintiff-respondent was being prosecuted had not been terminated.The defendant-petitioner contended that, no cause of action had accrued to theplaintiff-respondent to sue him in a civil action for malicious prosecution as thecriminal action had not been terminated at the time the present civil action formalicious prosecution was instituted against him. The District Court held that theaction is maintainable.
Held:
As far as the present civil action is concerned, it is the institution of criminalproceedings maliciously without any reasonable and probable cause thathad caused the plaintiff to institute Court proceedings.
The plaintiff-respondent’s claim is not based on malicious prosecution asunderstood in the English Law but founded on principles of actio injuriamknown to the Roman Dutch Law.
APPLICATION for Leave to Appeal from the order of the District Court ofKuliyapitiya.
CA
Kalu Banda v. Rajakaruna (Nanayakkara, J.)
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Cases referredto:
Ranganiv. Kirihamy – 71 NLR 357.
Somasiriv. Petroleum Corporation – (1992)1SriLB 39.
Alwis v.Edward Ahangama – (2000)3SriLR225.
Wijegunatilake v. John Appu – 22 NLR 231.
Naide Hangidia v. Abraham Hamy – SCM – 01. 03. 1898 CR Kandy289/5852.
Alagakawandi v. Mutumal – 22 NLR 111.
Chula Bandara for petitioner.
Jacob Joseph with D. Wimalasiri for respondent.
Cur. adv. vult.
May 29, 2002NANAYAKKARA, J.
The plaintiff-respondent (respondent) instituted action in theDistrict Court of Kuliyapitiya against the defendant-petitioner (petitioner)seeking damages in a sum of Rs. 10,000,000 and other ancillary reliefsalleging that the petitioner without any reasonable and probable causemaliciously prosecuted him by instituting criminal proceedings in theMagistrate’s Court.
The trial in this case had commenced on 26. 01. 2000 with theformulation of issues by both parties.
Of the 19 issues that have been formulated, 8 issues have beenformulated by the plaintiff-respondent and the rest by the defendant-petitioner.
It was agreed that the Court should try issues No. 9 and No. 13as preliminary issues. Thereafter, the Court making an order in regardto the said issues on the basis of the written submissions tendered
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by parties had answered the issue No. 9 in favour of the respondent,leaving the issue No. 13 unanswered.
The issues which the parties moved the Court to try preliminarilywere to the following effect:
Issue No. 9 – Is the plaint filed against the defendant premature?
Issue No. 13 – Has the plaint been presented in accordance withsection 40 (d) of the Civil Procedure Code?
What the learned Counsel for the petitioner contends basically bythis application, is that no cause of action had accrued to the respondentto sue him in a civil action for malicious prosecution as the criminalaction in which the respondent was being prosecuted had not beenterminated at the time the present civil action for malicious prosecutionwas instituted against him.
Therefore, the pivotal issue that has to be determined in this caseis whether the respondent could maintain this action if the criminalproceedings against the respondent in the Magistrate’s Court had notreached a finality at the time the present civil proceedings wasinstituted against the petitioner.
The learned Counsel for the petitioner has submitted that thetermination of criminal proceedings in favour of the respondent, at thetime when civil proceedings for malicious prosecution was institutedwas one of the fundamental requirements, and as the present civilproceedings for malicious prosecution had been filed before thetermination of the criminal proceedings, the plaint is premature andnot maintainable.
Therefore, the fundamental issue would be whether a cause ofaction had accrued to the plaintiff to sue the defendant, at the timehe did, for malicious prosecution, and the resolution of this issuedepends to a certain degree on the definition of the “cause of action”.
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Kalu Banda v. Rajakaruna (Nanayakkara, J.)
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In this regard the definition of the cause of action given in Ranganiv. Kiriham/') would be a useful guidance in resolving the issues. Inthis case, the cause of action has been defined as an act on thepart of the defendant which gives the plaintiff his cause of complaint.This definition has been accepted and adopted in the case of Somasiriv. Petroleum Corporation.®
As far as the present civil action is concerned what is that hascaused him to complain? It is the institution of criminal proceedingsmaliciously without any reasonable and probable cause. It is the veryact of malicious criminal prosecution which has made the plaintiff-respondent institute court proceedings.
A careful reading of the plaint, particularly averment 28 shows thatit is the prosecution or making false accusation that has promptedthe respondent to institute civil proceedings against the petitioner.According to the respondent it is the very institution of criminalproceedings on false charges which has prompted the respondent toinstitute proceedings.
Therefore, it is evident, the respondent’s claim in this case is notbased on malicious prosecution as understood in the English Law,but founded on principles of actio injuriam known to the Roman Dutchlaw and the requirements envisaged under the English law would haveno application.
As the learned counsel for the respondent submitted, the causeof action which is founded on abuse of legal procedure as contemplatedby the Roman Dutch Law principle actio injuriam, which is of widerconcept than the malicious prosecution as understood in the EnglishLaw.
In this connection, the reasoning adopted in the case of Alwis v.Edward Ahangama,® would be helpful in resolving the question inissue. His Lordship Justice Fernando in this case held that makinga defamatory complaint of theft, maliciously without any reasonable
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and probable cause against the plaintiff which led to his arrest andhis subsequent production in Court shows that there was aminuainjuriandi, as the defendant had made the complaint of theft not merelyrecklessly, but knowing it to be false. As this can ground an action
for injuria committed by the defendant against the plaintiff it ismaintainable against the defendant.
Schneider, AJ. in Wijegunathilake v. John Appu.w referring to viewsexpressed by Bonser, CJ. in Naide Hangidia v. Abraham Hamy(5) hasobserved in the following terms:
"It is clear that an action on this case, for injury lies. It is aform of action free from the technicalities of the English form ofaction.”
A careful reading of the averments in the plaint clearly demonstratesthat the plaintiff has sought relief on the basis of an injuria knownto the Roman Dutch Law, although the learned District Judge hasnot given his mind to this aspect of the matter when making his order.He has based his order mainly on the definition contained in the CivilProcedure Code of the term “cause of action” as analysed in the caseof Ranghamy v. Kirihamy (supra), and the interpretation given to theexpression no action shall be maintainable and no action shall beinstituted in the case of Alagakawandi v. Muthumal, which though hassome relevance to the resolution of the issues, but does not fullyaddress the issue involved.
Therefore, taking into account the relevant case law and legalprinciples, I am of the view that the action is maintainable against
the defendant-petitioner.
Therefore, for the foregoing reasons, I reject the application of thepetitioner and the respondent is entitled to costs in a sum of Rs. 5,000.
UDALAGAMA, J. – I agree.
Application dismissed.
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