002-NLR-NLR-V-48-RAMIAH-Appellant-and-RAYNER-Respondent.pdf
Ramiah v. Rayner.7
1946Present: Canekeratne and Dias JJ.
RAMIAH, Appellant, and RAYNER, Respondent.
19—D. C. Hatton, 3,140.
Tort—Wrongful search of house—Claim for damages—Circumstances whenproof of malice is not necessary.
Where the defendant had complained to the police, on quite inadequateinformation, charging the plaintiff with theft, and the police, withoutmaking further inquiry, searched the house of the plaintiff for the articlesalleged to have been stolen—
Held, that it was not necessary to prove malice in the defendant toentitle the plaintiff to recover damages for the unjustified search.
^^PPEAL from a judgment of the District Judge of Hatton.
N. E. Weerasooria, K.C. (with him Walter Jayewardene andV. Joseph) for the plaintiff, appellant.
C. E. S. Perera (with him S. R. Wijayatilake), for the defendantrespondent.
Cut. adv. vult.
8DIAS J —Ramiah v. Rayrter
November 21, 1946. Dias J.—
The plaintiff says that the defendant on March 4, 1944, made a falsecomplaint of theft of three copper cauldrons against him to the Mas-keliya Police which led to the search of the house where he was residing.He claimed a sum of Rs. 1,000.00 as damages. No stolen property wasdiscovered at the search. One of the missing cauldrons was subsequentlyfound in a ravine on the estate, but there is nothing to suggest that theplaintiff hid it there- No charge has been made in any Court against theplaintiff and we must proceed on the assumption that he is innocent ofthe charge of theft.
The defendant is the Superintendent of Alton estate belonging to theCeylon Tea Plantations, Limited. The plaintiff was originally the clerktea-maker and lattely the tea-maker oh the estate. The defendanttook charge of the estate as superintendent in November, 1943. Shortlyafter taking charge the defendant thought the plaintiff had too manyassistants and he discontinued two men from the factory. It is obviousfrom the evidence that the defendant formed an unfavourable opinionof the plaintiff’s work. He found that the plaintiff allowed the dhobywashing to be dried on the withering loft. He also was of opinion thatthe plaintiff took too long an interval for his meals. A state of friction,therefore, arose, and I believe the plaintiff when he says that the situationmade it impossible for him to carry on his duties under the defendant.
His story about the manner in which the defendant is alleged to haveabused him is, I think, exaggerated. Equally, the defendant’s versionappears to be an under-statement. The situation, however, was animpossible one, and the plaintiff gave notice and left the estate with hisbelongings on March 1, 1944. I .cannot believe that the defendant wasactuated by malice, spite, or ill-will against the plaintiff. The fact thata few hours after the plaintiff left the estate, the defendant, finding himstranded on the road, endeavoured to assist him, negatives such asuggestion.
On March 4, 1944, that is tor say three days after the plaintiff left, the.defendant sent a telephone message to the Maskeliya Police which wasrecorded in the telephone register, P2, as follows: —
“ On Wednesday 1st the tea-maker left here from Alton to EildonHall estate, Lindula. He has taken the threei- rice boiling pots withoutmy knowledge, and I want to get them back as the value is aboutRs. 200.00—made of copper. The name of the tea-maker isTherumiah. ”
A police officer proceeded to Alton estate on the same) day and recordedthe statement of the defendant—P3.In the course of that statement
the defendant said : —
“When 1 took charge of this estate in November last ….
I saw three copper boiling pots in use daily to feed the childrenThese pots were last used on January 5, 1944, for mass anchy treat-
. ment. At the …. time the tea-make'r left the estate hedid not give these to the estate. I learnt that these are estate pro-perty ..I did not come across any entry (i.e., in the inventory)
DIAS J.—Ramiah v. Rayner.
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with regard to the pots …. I presume these pots are notentered deliberately in order to steal them. I learnt that these potswere removed by him to his present place …. The tea-makerwas responsible for all the articles in the estate as they were given tohis care …. These pots are not in the estate now.”
Taking the two statements P2 and P3 together, it is clear that thedefendant was making a charge against the plaintiff of committingtheft of these cauldrons. On that statement the police had no option butto proceed to the plaintiffs residence and search the place.
It is to be noted that in making these statements the defendant didnot disclose to the police that on March 2, 1944, he had received fromJalaldeen, the clerk of the estate, the document D3. The kanakapullehad reported to Jalaldeen that the three cauldrons had been brought foranchylostomiasis treatment at the request of the estate apothecary.The kanakapulle says in D3 “It seems that the same were returned toMr. Ramiah, the late tea-maker.” The kanakapulle also stated thatwhen Ponnambalam Kangany was sent to the plaintiff to get them back,the latter told him that the cauldrons had been given to the defendant.The kanakapulle says that he has “ now learnt ” that the plaintiff hadremoved, them and he requests Jalaldeen to inform the defendant. TheKanakapulle’s information that the plaintiff had removed these articleswas derived from Selvadurai’s cook, who has not been called.
The defendant, instead of telling the police that the cauldrons weremissing, and handing over D3 to them, and requesting them to make thenecessary inquiriesj charged the plaintiff with theft. The informationon which the defendant acted was quite inadequate to make a definitecharge against the plaintiff. The direct result of the defendant’s actionwas that the police, without making further inquiry, went straight tothe plaintiff’s residence and searched the house of an innocent man.
Both sides appear to have proceeded under the belief that it was. aningredient of the plaintiff’s cause of action that “ malice ” on the partof the defendant had to be established to entitle the plaintiff to succeed—see paragraph 4 of the plaint and issue I. It is clear, however from theauthorities that for this kind of action the proof of “ malice ” is notessential. The principle is that any unjustified or wrongful act of th«defendant which causes a trespass on the plaintiff’s person or propertyis an actionable wrong, and if the plaintiff is able to prove that he therebysustained assessable damages, the law will give him relief. Whether insuch an action the plaintiff must go further and prove that the defendantacted “maliciously” the law draws a distinction between acts donewithout judicial sanction and those done under judicial sanction im-properly obtained. Ramanathan ChetViar v. Meera Saibu Marikar McKerron says: —“ Malicious Arrest—It is an actionable wrong toprocure the arrest of anyone by setting the law in motion against himmaliciously and without reasonable and probable cause. This species ofwrong must be distinguished from that of false imprisonment or arrest.In false imprisonment the imprisonment is the act of the defendant orhis agent. In malicious arrest, the interposition of a judicial act between
1 (1930) 32 N. L. R. at p. 195. Privy Council.
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DIAS J.—Ramiah v. Rayner.
the act of the defendant and the imprisonment makes the imprisonmentno longer the act of the defendant, but the act of the law …. Theimportance of the distinction is that in an action for false imprisonmentneither malice nor absence of reasonable and probable cause need beshown
Once it has been established that the act complained of was the actof the defendant or his agent, the only question which remains is—Wasthe act justified or not ? If the defendant acted “ maliciously ”, thatwill be an element in the estimation of damages ; but the mere falseimprisonment, illegal arrest; illegal seizure, or even an unjustified searchgives a cause of action to the aggrieved person *. Our law reports containmany examples of this principle*. In Fernando v. Per era' the facts ofwhich are almost identical with those of the present case, the defendantcharged the plaintiff before the police with the theft of two cart wheels.The police searched his house and found two cart wheels. He wascharged with theft and acquitted. The plaintiff, confining his claim toonly so much damage as was sustained by reason of the defendant’saction in having his cart wheels seized and detained by the police, suedthe defendant. It was held that in such an action it was not necessaryto prove malice in the defendant to entitle the plaintiff to recover damages.
The Privy Council put the matter clearly in Ramanathan Ckettiar v.Meera Saibo Marikar (supra). “ If goods are seized under a writ orwarrant which authorised the seizure> the seizure is lawful and no actionwill lie in respect of the seizure unless the person complaining can establisha remedy by some such action as jor malicious prosecution ’. If, how-ever, the writ or warrant did not authorize the seizure of the goods seized,an action would lie for damages occasioned by the wrongful seizure vnth-out proof of malice. These propositions not only state the law of thiscountry upon the subject, but they are supported by decisions in the courtsof countries where the Roman-Dutch Law prevails.” A fortiori when thewrongful arrest, seizure or search is done without judicial sanction, nomalice need be proved. In the present case, the facts, which the DistrictJudge accepted, prove that the defendant on totally inadequate materialsset a ministerial officer in action. No judicial act was interposedbetween the charge made by the defendant and the search of the plaintiff’sresidence. The only question remaining is whether the defendant wasjustified in so 'setting the police in motion. I think he was not. Hadthe defendant handed the document D3 to the police and left it to themto make the requisite inquiries and take the requisite action the positionwould have been different. In the result the plaintiff is absolved from thenecessity of proving that the defendant was actuated by “ malice ”.
Counsel for the respondent cited the case of Chitty v. Peries'. In thatcase the third defendant made a complaint to the police charging theplaintiff with the theft of certain property. As a result of that complaint
1 McKerrem on the Lair of Delicts (2nd Edit.) p. 247.
3 XlcKerron on the Law of Delicts, pp. 152-153.
3 Re« de Alwis v. Mungappa Chetliar (1909) 12 N. L. R. 353 ; Abdulla v. LushingUm (1900) 13N. L. It. 38 ; Fernando v. Fieris (1916) 19 N. L. R. 264.
(1913) 16 N. L. R. 73.
Cf. Kandasamypillai v. Selradurai (1940) 42 .V. L. R. 19.
(1940) 41 N. L. R. 145.
Punchirala v. Dharmananda Then.
11
the police visited the house of all the four defendants and recorded theirstatements. Thereafter, the police decided to arrest the plaintiff. Theplaintiff sued all four defendants alleging (as the plaintiff has done in thepresent case) that the four defendants wrongfully, maliciously and with-out reasonable and probable cause caused the police to arrest her on acharge of theft. The two questions which were argued were whetheron the facts it could be said that the defendants instigated the plaintiff’sarrest, and whether in a civil action it was open to the defendants toimpeach the credit of the plaintiff by a statement of hers recorded in thePolice Information Book. The plaintiff in Chxtty v. Peries (supra)undertook an onus and proved an ingredient she was not strictly bound toprove.
In my opinion the trial Judge has reached'a wrong conclusion on theacts established in this case. The decree appealed against must be setaside and judgment entered for the plaintiff.
I do not consider it necessary to send the case back for the assessmentof damages, because all the materials are before us. The plaintiff claimeda sum of Rs. 1,000 as damages. It was laid down in de Alwis v.Murugappa Ckettiar1 that in assessing damages in a case like this theCourt will properly take into account the position in life of the partiesand the circumstances under which the wrongful act was done, and whetherthe defendant acted in good faith or not, and whether the actwas likely to be an affront to the plaintiff’s dignity or to damage hisreputation. In Abdulla v. Lushington ’ where the Fiscal wrongly arrestedthe plaintiff, Wood Renton J. said:—“The damages (Rs. 250.00) areheavy. But no plea for their reduction was embodied in the petition ofappeal, and I think we ought to treat them as if they had been assessedby a jury.” In the present case the plaintiff was not arrested. In all thecircumstances of the case I think that a sum of Rs. 250 as damageswould be adequate compensation for the wrong done to the plaintiff.
therefore, set aside the decree appealed from and enter judgmentfor the plaintiff for a sum of Rs. 250 with costs in the Court of Requestsclass both here and below.
Canekaratne J.—I agree.
Decree set aside.