004-NLR-NLR-V-39-KOTALAWALA-v.-PERERA.pdf
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Kotalawala v. Perera.
-1936Present: Moseley J. and Fernando AJ.
KOTALAWALA v. PERERA.140—D. C. Colombo, 1,965.
Malicious prosecution—Information given by defendant—No request ordirection to prosecute—Liability of informant—Actio injuriarum inRoman-fiut'dh law.
An action for malicious prosecution will not lie in a. case where theprosecutiofi has been instituted by a public officer, unless it is shownthat the defendant in addition ,to giving information either requestedOr directed' th,e prosecution. ■
■ Uduma >Lebbe Marikar v. Mudmay Sarango (5 S. C. C. 230) followedWijagoonetilleke v. Joni Appu (22 N. L: R. 231) referred to.
•"g~> HIS was an action to recover damages for malicious prosecution.
The plairtt'iff Was c'ha'rged' and acquitted' in the Police Court of Gampahafor aiding and 'abutting one Nadorisa in forging a cattle voucher. Thedefendant, the1 Police Vidane in whose presence Nadorisa signed thevoucher j- subsequently informed his superiors as well as the Police thatNadorisa* impersonated a third party. Inquiries were held, both by the.Mudaliyar 'and the' ■ Police,, before a prosecution' was launched. Thedefendant was a material witness at both inquiries.
The learhed Distract1 Judge gave judgment for the plaintiff.
i 37 N. 1. R. 212 –
FERNANDO A.J.—Kotalawala v. Perera.
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V. Perera (with him Dodwell GoonewUrdena), for defendant,appellant.—The Police Vidane was acting on a privileged occasion. Hewas acting in his official capacity. He merely set the law in motion.The Police used their discretion before prosecuting. In Uduma LebbeMarikar v. Mudmay Sarango1 where plaintiff brought an action againstdefendant for malicious prosecution and alleged in his libel thatdefendant had without reasonable and probable cause, caused and pro-cured the Inspector of Police to prefer a charge of theft against plain-tiff, it was held that the prosecution was brought by the Inspector ofPolice and not by the defendant.
The protection given on a privileged occasion continues till the end ofthe proceedings (Watson v. Jones'. “ The privilege which protects awitness from an action of slander in respect of his evidence in the box,also protects him against the consequence of statements made to theclient and solicitor in preparing the proof for trial.”
Inquiries made under Chapter XII. of the , Criminal Procedure Codeare made on a privileged occasion, and an action for damages does notlie for false statements made. (Wijagoonetilleke v. Joni Appu *).
Nathan’s Common Law of South Africa, vol. III., p. 1643, says thedefendant must have set the criminal law in motion, that is. he musthave voluntarily instituted criminal proceedings.
N. E. Weerasooria (with him N. Nadarajah and Wickremanayake), forplaintiff, respondent.—The Police Vidane was acting as an eye-witnessand not in his official capacity. 'It was on his complaint that both thePolice and the Mudaliyar took action.
If the Police Vidane had not complained of impersonation there wouldhave been no action.
The defendant set the criminal law in motion voluntarily when hecomplained to the Police. He was using the Police as a medium to havethe plaintiff prosecuted. Therefore the defendant was not acting on aprivileged occasion and liable in damages.
In Selvathurai v. Somasunderam* it was held that a mere honestbelief on the part of the defendant in certain facts, which afford nobasis for a criminal charge, coupled with the laying of a charge, cannotbe regarded as reasonable and probable cause for making the charge
This case was decided entirely on a. finding of fact. Your Lordship’sCourt should not disturb that finding. It is the practice of the AppealCourt not to reverse pure findings of fact (King v. Guneratne ').
Cur. adv. vult.
September 30, 1936. Fernando A.J.—
The plaintiff alleged in his plaint that the defendant caused a chargeto be preferred against the plaintiff in P. C. Gampaha, No. 29,580, thecharge being that the plaintiff aided and abetted'one Nadorisa to commitforgery of a cattle voucher in favour of the plaintiff.
1 5 S.C. c. 230* (1905) A. C. 480.
3 22 N. L. R. 231."• 31 N. L. R. 296.
3 37 N. L. R. 167.
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FERNANDO A.J.—Kotalawala v. Perera.
The first issue framed at the trial was, “ did the defendant cause theplaintiff to be charged in P. C. Gampaha, No. 29,580 ? ” and with regardto this issue the District Judge stated that “ in his evidence in the PoliceCourt, there can be no question that the defendant alleged that thevoucher was a forgery, and when the defendant made that charge offorgery, he did so as an eyewitness Apparently for these reasons thelearned District Judge thought there could be no doubt that the defendantdid cause the plaintiff to be charged with aiding and abetting the forgery.As a matter of fact, however, it would appear from the judgment thatthe learned District Judge 'was more concerned with the question whetherthe defendant acted maliciously .and without reasonable or probablecause, than with the question- whether it was the defendant himselfwho caused the plaintiff to be charged. In the case of Vduma LebbeMarikar v. Mudmay Sarangoit was held that assuming that thedefendant falsely and maliciously and without any reasonable or probablecause caused an Inspector of Police to charge the plaintiff with theft,the plaintiff would have no cause of action inasmuch as the Inspectorhimself who preferred the charge might have had good grounds for makingthat charge. As Clarence J. said:—“All that plaintiff has proved isthat defendant gave certain information to the Police in consequenceof which and of other information obtained by his own inquiries, theInspector prosecuted the plaintiff. It does not "appear that defendantsolicited the Inspector to prosecute. The Inspector on receiving defend-ant’s complaint seems to have taken the matter into his own hands andto have instituted the criminal prosecution against the plaintiff. Underthese circumstances defendant clearly is not civilly responsible -to plaintifffor the prosecution instituted by the Inspector ”.
In Wijagoonetilleke v. Joni Apputhe cause of action as set out in theplaint was that the defendant had falsely and maliciously, and withoutany reasonable cause given information to the Police, and caused plaintiffto be charged with riot and robbery, and that the defendant had alsogiven false evidence at the- trial, and had procured other false witnesses.Schneider J. took the view that the cause of action*as set out in the plaintindicated that the action was within the scope of the Actio Injuriarum ofthe Roman-Dutch law, which is wider than the action for malicious pro-secution known to the English law. “If the present action ”, he said“ be regarded as identical with the English Law action of that name, it isbound to fail, for in the circumstance':, "the defendant cannot be said tohave prosecuted the plaintiff ”. The 'defendant did no more than giveinformation to the Police, and the Police after investigation prosecuted.In support of this position he referred to the case of Uduma Lebbe Marikarv. Mudmay Sarango (supra), and an Indian case.* He then proceeded todiscuss the other allegations made by the plaintiff in the case and heldthat a statement made by a witness is absolutely and unconditionally privi-leged so that no action can be brought against him in respect of any evidencegiven in Court. There’ is no evidence whatever, he said, that the defendantprocured false witnesses. The only other question was “ whether inrespect of the statement made by the defendant before the Sergeant ofPolice he can claim the same privilege as that which the law affords to the
1 5 S..C. C. 230.
* 22 N. L. R. 231.
FERNANDO A.J.—Kotalawala v. Perera.
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statements he made when giving evidence before the Police Court”, andhe held that the defendant could claim the same privilege. Followingthe judgment in Sir Patrick Watson v. Jones he held that the privilegewhich protects a witness in respect of his evidence in the box also protectshim against the consequence of statements made to the client and thesolicitor in preferring the proof for trial. The position of the defendantin that action, he thought, was much stronger than the position of thedefendant in Watson v. Jones (supra}, because the defendant made hisstatement in the course of an inquiry under Chapter XII. of the CriminalProcedure Code.
Nathan’s 3 Common Law, South Africa, p. 1682 (chapter V.) statesthat where a person maliciously and without reasonable cause prosecutesanother on a criminal charge, the latter pn acquittal has an action fordamages, and that the remedy is provided for by the Actio Injuriarum.The Actio Injuriarum was allowed in every case in which injury resultingin damage was maliciously done, or. caused to be done, even though itwas done during the course of a proceeding which was itself perfectlylawful. “ The requisites to found an action for malicious prosecutionhas been settled in a series of South African cases, the effect of which isthat in order to maintain such an action the plaintiff must prove—
“ 1. The existence of the prosecution.
“ 2. That there Was malice in instituting the criminal proceeding.
“3. Thai there was an absence of reasonable and probable cause.
“ 4. The termination of the criminal proceeding in favour of theplaintiff ”,
If it be clearly shown that a private person procured a prosecution atth i public instance, maliciously and without reasonable cause, an actionm;.y lie against him. It is in any case clear that where a private indivi-dual merely lays information concerning the commission of an allegedcriminal offence, without requesting or directing the prosecution of anyparticular person, and the public prosecutor is left to exercise his ownjudgment as to whether a prosecution shall be instituted or not suchprosecution is not traceable to ■ the action of the person who gave theinformation and he cannot be held responsible for it. The defendantmust have set the criminal law in motion, that is, he must have volun-tarily instituted criminal 'proceedings (paragraphs 1641-1643). It isclear then that in South Africa an action of this kind will not lie in a casewhere the prosecution had been instituted by a public officer, unless it isshown that the defendant in addition to giving information eitherrequested cr directed the prosecution of any particular person.
The evidence in the case proves that the witness Abraham complainedto the defendant that he had lost a cow, and the defendant conveyedthat information to the Muhandiram. The Muhandiram held an inquiryhimself, and this was followed by another inquiry by the Mudaliyar.-The Sub-Inspector of Police who actually filed the charge in the PoliceCourt stated that he did so on certain information obtained from a petitionthat was sent to him by the Muhandiram, that the petition was sent by a
» (1905) A. C. 480.
14Ruthira Reddtar v. Subba Reddiar.
man called Rupasinghe, and that the Inspector held an inquiry and afterthe inquiry decided to take action. The plaintiff himself when questionedwhether the defendant, had anything to do with the charge against him,said that he did not know that the defendant had anything to do withthat charge.
On this evidence it seems clear that this action cannot be maintainedbecause there is no proof that the defendant did in fact prosecute theplaintiff, and even assuming that an action on the basis of the ActioInjuriarum can be brought in circumstances like these, it seems clearfrom the evidence that the defendant merely gave some informationwhen questioned by the Muhandiram and by the Inspector of Policeand that he did not either direct or request the prosecution of theplaintiff or of any one else. It would, therefore, follow that the defendantdid not cause the plaintiff to be prosecuted.
As the action must fail on this ground, it is not necessary to discussthe other question raised in the other issues framed at the trial. I wouldset aside the decree of the District Court and dismiss plaintiff’s actionwith costs here and in the Court -below.
Moseley J.—I agree.
Appeal allowed.