074-NLR-NLR-V-57-M.-J.-W.-COOREY-Appellant-and-J.-S.-JAYAWICKREMA-Respondent’.pdf
.Present : Gunasekara, J., and Fernando, A.JF.
M.J. W. COOREY, Appellant, and J. S. JAYAWICKREMA,
Respondent
S. G. 355—D. C. Panadura, 2,565
Delict—Malicious abuse of process—Necessary elements—Trespass—Injuria—J-Jxemplary damages—Civil Procedure Code, ss. 2S7, 2SS.
Wrongful entry into premises mndo in purported pursuanco of n writ impro-perly obtained nnd the attempt to oust- the occupants even without force consti-tutes trespass amounting to an injuria. In such a case the award of exemplarydamages is justified-
A PPEAL from a judgment of the District Court, Panadura.
Sam P. G. Fernando, with G. C. Niles, for the plaintiff appellant.A. G. Gunaralnc, for the defendant respondent.
Cur. adv. vuU.
August 6, 1954. Fernando, A..J.—
The plaintiff-appellant sued the defendant-respondent for damages forthe latter’s alleged wrongful interference with appellant’s possession ofcertain residential premises in the town of Moratuwa and for damages forpain of mind, humiliation and expenses arising from the defendant’sconduct. The action was dismissed by the learned District Judge.
The following facts were established by evidence which stood uncontra-dictcd. The appellant had for many years been the tenant of the houseand garden No. 4S4 and 4S6 at Main Street, Rnwatawatte, Moratuwa,under successive landlords, the last of whom was one Erie Fernando. Thepremises were sold in execution of a mortgage decree entered against EricFernando in an action in the District. Court of Colombo nnd purchased bythe respondent on 2Sth .January, 3 950, at the execution sale. On 2SthJanuary, 1950, the respondent informed the plaintiff by letter (PI) thathe had purchased the house and property !l on which you now reside ”….“ as I have no place to stay ” ; after referring to the need for
considerable repair and renovation, the letter ends with the remarks :—“ As there are lots of things to be attended to please sympathise withme and discuss with the brothers and give me the house. Do notharass me but give mo the house with good means. Please consultgood L-aas whether this work can be done when jjcoplc arc there.Wc all like to safeguard our respect. ” The Proctor who had representedthe respondent in the mortgage action then wrote (P2) to the appellanton 17th March, 1950, informing him of the purchase by the respondentand requesting him “ as the tenant of the house ” to “ pay my client therent ” as from 1st March, 1950. The respondent obtained a conveyance
in his favour through the Court on 1st April, 1950, and he moved (appa-rently in person and not through his Proctor) on I2th May, 1950, for anorder of delivery of possession. In the affidavit filed for this purpose therespondent averred that Eric Ecrnando (the defendant in the mortgageaction) “ is still in occupation and possession of the property purchasedand it is necessary that an order for delivery of possession be issued tohave the said defendant ejected from the said property
From this stage onwards the evidence is contradictory and I shall statefirst the narrative contained in the evidence given for the defence.
The Fiscal's officer (who was called in the present action by the res-pondent) stated in evidence that after he got the writ he went to the pre-mises on 22nd May, 1950, and requested the appellant to deliver up pos-session of the land, but to remain in the house for any length of time ;the appellant declining to agree, the officer left the premises. Prior tothis visit oji 22nd May, the Fiscal’s officer had been informed by therespondent that owing to a mistake by*- the latter’s Proctor, he could getpossession of the land only, and not of the house. (I shall refer presentlyto the different version given by the appellant as to the visit on 22nd May.)
■ The officer returned to the premises on the morning of 24th May accom-panied on this occasion by the respondent, 2 Police Constables and oneHendrick, alleged to be a tree-climber. The officer’s intention was to givesymbolic possession of the land only, by having one coconut plucked,and he alleged that he had no intention of ejecting people from the house.The appellant was away at the time (on duty at A ngulanaRail way Station),but his interests were effectively protected despite his absence fromhome. His relatives, including his wife and sister, threatened the Fiscal’sparty with knives and effectively prevented them from even completinga symbolic delivery' of possession.
The appellant’s version of the visit by the Fiscal's officer on May 22ndis that the latter came together with the respondent who told the appellant“ to clear out ” of the premises. When shown the writ the appellantstated that the respondent had deceived the District Judge. He thenproduced the Proctor’s letter P2 and in turn risked the respondent “ toclear out ", whereupon the latter threatened to return with the Police.The appellant took urgent steps to protect his occupation and on the verynext clay (23rd May') filed in the District Court an affidavit D2 whichcontains a version of the incident of the 22nd very similar to that which hesubsequently' gave in Court. The allegation in D2 that the respondenthad threatened to throw the appellant out with Police assistance was(in the light of the second visit*on May' 24th) either true or prophetic.
In regard to the events of the morning of May 24th, the appellant calledhis wife and sister who alleged that the respondent and the Fiscal askedthem to leave the house, and threatened to throw their things out of thehouse as well as to drag them out by force. The witnesses fully admittedthe action they took to defend their home. . They alleged that a largecrowd had collected, and the crowd could no doubt see and hear whatwas going on.
The learned Judge has accepted the version spoken to by the defenceand rejected the evidence of the appellant and his. witnesses. He reliesstrongly on the evidence given by the Fiscal’s officer to the effect that onboth occasions his intention was to deliver possession, not of the house,but of the land only, and that in regard to the latter his purpose was togive symbolic delivery by having a coconut plucked. He points to thecorroboration afforded to the officer’s evidence by an affidavit DC whichthe officer had submitted to his superior on oth June, 1950. But the-learned Judge takes no account of the fact that the affidavit was submittedonly 12 days after the incident, and that the complaint alleged to havebeen made by the officer to the Police on 24th May was not produced inCourt. It is at least strange that a case of such violent resistance to exe-cution of a writ was not immediately brought to the notice of the superiorofficer. (I note here by way of contrast the speed with which the appel-lant made his complaints P6C to the Court and P7 to the Police and thefact that both were produced in evidence.) Nor has the learned Judgetested the Fiscal’s officer’s evidence by reference to the affidavit T> 2which the appellant filed in the Dist rict Court on 23rd May : If he did so.he might well have doubted the story that the visit on 22nd May wasa peaceful one and unaccompanied by threats to return in force.
[Moreover, the learned Judge in accepting the evidence given by therespondent has paid little or no regard to the significance of the documentsproduced by the appellant. He construes the letter PI of 2Sfh Februaryas merely evidence of an intention to repair the house and ignores thosepoints of it which clearly constitute a request for restoration of possessionand he too easily accepts the respondent’s explanation that the Proctor’sletter P2 was written without instructions. More serious yet is the failureof the learned Judge to refer to the affidavit PGC of lltli May, 1950. upon■which the District Court was moved to issue the writ. The uncontradictedevidence in this case establishes beyond doubt that the respondent deli-berately made a false statement when lie averred that Eric Fernandowas still in occupation and possession and that a writ was necessary in orderto eject him.
In my opinion the appellant has successfully proved :—
(«) that the respondents purchased the premises in question (because“ he had no place to stay ”) with the object of entering intooccupation, and that be failed to persuade the appellant tosurrender possession peacefully ;
(,b) that the appellant actually paid rent for two months to the respon-dent either directly or through his Proctor, and at the latter’swritten request ;
that tlie respondent deceived the Court into issuing the writ for
ejectment by making false statements in his affidavit of 10thMay, 1950 ;
that the respondent accompanied the Fiscal’s officer on May 22nd
and attempted b3* production of the writ to induce the appel-lant to surrender possession of both house and land, and thathe thereafter threatened to return with Police assistance ;
(c) that the threat was carried out on May 24th when the Fiscal'sparty, assisted and encouraged by the respondent, entered theland with the object of ejecting the occupants by' force or by’a show of force.
The defence version, that the appellant was requested to surrenderthe land but to remain in occupation of the house, even if it be true,does not assist the respondent. The appellant had been the tenant ofthe land and of the house standing thereon, and his right to continuein occupation of both was unaffected by’ the sale in execution. Theonly order which the respondent coidd properly’ have obtained was oneunder s. 2SS of the Code for symbolic delivery of the land and buildings,and an order under s. 2S7 could not properly have been made even in respectof the land, alone—a circumstance which must be presumed to have beenwithin the knowledge of the Fiscal’s officer, and which casts grave doubton the truth of his evidence. Moreover, having regard to the fact thatthe. appellant had already acknowledged the title of the appellant bypaying rent to him and to his Proctor, it is doubtful whether the respon-dent could in good faith have believed it necessary’ to obtain even anorder under s. 2SS, which serves only’ to give the occupant notice of theconveyance to the execution-purchaser. Respondent had recourse tojudicial process, not in the due exercise of his rights as the purchaser,but with some other object; and the only reasonable inference, in viewof the other evidence in the case, is that he was attempting to obtainphysical possession of the land and building otherwise than by theappropriate legal procedure.
I have little hesitation in reversing the findings in favour of the respon-dent, because the learned Judge apparently reached those findings withoutdue regard to the documentary' evidence, in the face of which considera-tions of demeanour or credibility are of little importance. In the absence,however, of a finding in that behalf, the allegations of physical violencemade against the Fiscal’s officer and the respondent must be regarded asnot having been proved. Nevertheless, the entry by itself made inpurported pursuance of a writ improperly obtained and the attemptto oust the occupants even without- force, was a trespass amountingto an injuria proper. (Maasdorp, Yol. 3, p. 3S.)
In an action for malicious abuse of process, the plaintiff must prove(1) that the defendant instituted the proceedings, (2) that the defendantacted without reasonable and probable cause and (3) that the defendantwas actuated by malice (McKerron, Taw of Delict 4th Ed. pp. 304,305). By “ reasonable and probable cause ” is meant an honest belieffounded on reasonable grounds that the institution of the proceedingswas justified (idem p. 306). The question to be decided in a civil matteris whether the defendant in putting the law into motion acted as a discreetand prudent man would have done (Maasdorp 1909, Vol. 3, p. S7). .Asto the proof of malice, Maasdorp (p. S4) say's that “ If a man acts in agrossly negligent and reckless manner, acting in the furtherance of hisown interests without due regard to the rights of others, and careless asto whether he interferes with the liberty of another person or not-, the
natural inference is that he is influenced by improper motives, a fact•w hich will in law be regarded as equivalent to malice The followingdicta of this Court in similar cases bear out the statement in Maasdorp :—
“ As regards the element of malice, it is, of course, well known thatit docs not mean ill-will. It lias the import of mala Jicles, an intentionto cause wrongful injury, or such reckless action that the party mustbe held responsible for the consequences. It is generally expressedas animus injuriandi, but the intention need not be express (deSampayo J. in 21 N. L. It. at p. 430).“ But intent to obtain an object
by means that cannot be justified is a wrong and improper intent, andwhat the law calls malicious ”. (MacDonell C.J. in 33 A. L. R. atp. 329).
The appellant in this ease lias in my opinion successfully establishedthese three essential elements.
The writ granted by the Court did not in fact, authorise the ejectmentof the appellant and therfore the Fiscal’s officer in attempting to ejectthe appellant was acting beyond the powers authorised by the writ.For this reason Counsel for the respondent invited us to take the viewthat the respondent cannot be held liable for the unauthorised act of theFiscal’s officer. Having regard, however, to the part played by therespondent personally, both in obtaining the writ and in the subsequentevents, there is no doubt that he actively encouraged and assisted theFiscal’s officer to act in excess of the authority conferred by the writand thus rendered himself liable for the latter’s wrongful act.
A plaintiff in such a ease as the present one has to show that the actof the defendant either caused him actual pecuniary loss or was of sucha nature as to be calculated to injure his reputation. In regard to thefirst of these matters, the plaintiff's evidence was that- he incurredexpenditure amounting lo Rs. 800 in his very proper efforts to protecthis right to continued occupation of the properly. But although it wasopen to him to recover the costs of his intervention in the proceedingsin the mortgage action, he was content instead to agree in that actionto a settlement of consent, and those costs cannot now be recovered in thisaction. In regard to the second ground for damages, there lias been nosatisfactorv evidence to prove any serious prejudice to the appellant’sreputation. J3ut where the defendant's conduct invoices an element ofinjuria, e.g., where the conduct has been high-hancled, insolent, vindictiveor malicious, the award of exemplary damages is justified. pleKerronp. 150).
I consider that In this case an award of Rs. 250 would be appropriate.The decree dismissing the plaintiff’s action must be set aside, anddecree entered in favour of the plaintiff in a sum of Rs. 250 as damagestogether with the costs of this appeal and of the action in the DistrictCourt
Gl'.v.asekaha, J.—I agree.
Appeal allowed.