042-NLR-NLR-V-11-SADO-et-al.-v.-NONABABA-et-al.pdf
( 162 )
1907.June 1.
Present: Mr. Justice Wood Renton and Mr. Justice Grenier.SADO et al. v. NONABABA et al.
D.G., Galle, 8,108.
Malicious prosecution—Husband and wife defendants—Misjoinder—
Waiver—rLiability of husband for wife's tort—Bolus mains.
' Where a husband and wife who were married after the passingof Ordinance No. 15 of 1876 were sued in one action for damages formalicious prosecution and judgment was entered against them, and□o objection on the ground of misjoinder was taken in the lowerCourt—
Held, that the action was wrongly constituted, inasmuch as thecauses of action were separate and distinct and could not be joinedunder section ll of the Civil Procedure Code.
Sadler v. The Great Western Railway Co.1 and Appuhamy v.Marthelis Rosa2 followed./
Held, that the objection to misjoinder of causes of action nothaving been taken at the trial could not be entertained in appeal.
Held, that a husband married after the coming into operation ofOrdinance No. 15 of 1876 is not liable for his wife's independent tort,and that no judgment could be passed him as a joint tort-feasor,unless there was complicity or participation on his part in the wife’stort.
Held, also, that, in order to succeed in an action for maliciousprosecution, it is incumbent on the plaintiff to prove dolus malus.
Moss v. Wilson 3 and Corea v. Pieris 4 followed.
11895) A. C. 450.3 (1908) 8 N. L. R. 368.
(1906) 9 N. L. R. 68.4 (1906) 9 N. L. R. 276.
( 168 )
A
PPEAL by the defendants,' husband and wife, from a judgmentof the District Judge condemning them to pay to the
plaintiffs Bs. 400 damages for malicious prosecution.
H. J. 0. Pereira, for the defendants, appellants.
Sampayo, K.O., for .toe plaintiffs, respondents.
Cur. adv. vult.
June 7, 1907. Wood Benton J.—
This is an appeal from a decree of the District Court of Gallecondemning the appellants, who are husband and wife, to pay to therespondents a sum of Bs. 400 for false and malicious prosecution.
Mr. H. J. C. Pereira impeached the judgment of the District Court onthree grounds: (i.) That the action was wrongly constituted; (ii.)that, in any event, judgment ought not to have been entered againsttoe second appellant, who is toe husband of the first, inasmuch ashe was not shown to have been in any way a party to the chargepreferred by his wife against toe respondents; and (iii.) that therespondents had failed to establish dolus malus as defined, for thepurpose of cases like the present, by toe well-settled jurisprudenceof toe Supreme Court.
I propose to deal with each of these points in turn, (i.) Andfirst, as to the constitution of the action. Mr. Pereira contended,on the strength of the decision in Appuhami v. Marthelis Rosa,1following that of toe House of Lords in Sadler v. Great WesternRailway Co.,2 that the action was bad, inasmuch as toe causes ofaction of toe respondents were separate and distinct, and could notbe joined under section 11 of the Civil Procedure Code. Speakingfor myself, 1 think that this objection would have been a sound oneif it had been taken in time. So long as the words “ toe right to anyrelief claimed ” and the “ same cause of action ” in section 11, and thedefinition of “ cause of action ”• in section 5 of the Civil ProcedureCode remain unaltered, I do not think that litigants in this Colonycan get the benefit of the English decisions, of which the Univer-sities of Oxford and Cambridge v. Gill 3 may be taken as an example,and which allow the joinder of parties who have “ any right torelief ” arising out of toe same transaction or series of transactions.It was found necessary in England, so as to clear toe way for sucha joinder, to substitute for the words in B. S. C. Order 16, B. 1, “ toeright to any relief,” toe new words “ any right to relief.” No suchsubstitution has been effected in Ceylon. Moreover, section 11 ofour Civil Procedure Code contains the limiting clause ” in respect ofthe same cause of action,” which did not appear .in the old Englishrule; in the new one we have the words “ toe same transaction or
J (1906) 9 N/L. B. 68.*(1896) A. C. 450.
* (1899) 1 Ch. 56.
1B0T.June T.
( 164 )
1901.June 1.
WoodRhnton J.
series of transactions,” which, in view of the definition of that termin section 5 of the Civil Procedure Code, cannot be regarded as anequivalent for ” cause of action ” here. On these grounds 1 thinkthat we are still under the old dispensation of- Smurtkwaite v.Hannay1 and Sadler v. Great Western Railway Co. {iibi sup.).In the present case, however, no objection to the misjoinderwas taken at the trial; and I think that, now that judgmenthas passed between the parties, we ought not to entertain it. Therecent English case of Bullock v. London General Omnibus Co.* is anauthority for this course. I cannot see that the ruling of the Courtof Appeal on the point in any way depended on the special facts ofthe case. “ If, in fact,” said Collins M.B. {ubi sup. at p. 270).
“ there was such a misjoinder, it was for the defendants to take stepsto remedy it, and it is much too late to complain of the irregularity,if there was one.” Cozens-Hardy L.J. and Farwell L.J., expressthemselves in equally general terms. I think that the principlewhich they concur in affirming is sound, and that we should followit here.
(ii.) 1 pass now to Mr. Pereira’s second point. It is agreed .thatthe parties were married after ” The Matrimonial Bights and Inherit-ance Ordinance, 1876 ” (No. 15 of 1876), came into operation; andit results, I think, from the evidence that the second appellant in noway inspired or adopted his wife’s charge against the respondents.He was not sued on that footing, and the record discloses no facts onwhich a judgment against him based on it could stand. The ques-tion, therefore, arises whether, and, if so, to what extent, a husbandmarried after the Ordinance of 1876, and married out of community,is liable for his wife’s independent tort. In my opinion, he incurs noliability at all “ When a woman, ” says Voet (47, fit. 10, S. 3; DeViUiers, pp. 48, 49), “ who is married out of community of propertycommits an injury without the complicity and participation of thehusband, only her own estate will be liable for damages; ” and seeNathan {Com. Law of South Africa, III., S. 1,547) to the same effect.It was, of course, quite proper that the husband should be madean added defendant in the action, but the judgment against him as ajoint tort-feasor by implication of law is, in my opinion, bad; midas regards him, the damages must be set aside and the appeal allowed.
(iii.) As regards the wife, I have come to the conclusion that theappeal should, on .the merits, be dismissed- I do not agree with theview attributed by the learned District Judge to Burnside G.J., thatin cases of malicious prosecution " very slight evidence on the partof the plaintiff of want of reasonable and probable cause is all thatis required,” or that the plaintiff can satisfy the onus upon him by.merely putting in the depositions in the criminal case. Moss v.wilson* and Corea v. Pieris* clearly show that this is not now, at
i (1894) A. C. 494.» (1906) 8 N. L. R, 368.
* (1907) 1 K. B. 264.* (1906) 9 N. L. R. 276.
( 165 )
any rate, the jurisprudence of the Supreme Court. But X think that,on the question whether dolus malus has been proved, there is amaterial difference between .those cases and the present one. InMoss v. Wilson and Corea v. Pieris the defendant in bringing thecharge which formed .the subject-matter of the suit, was acting oninformation supplied by others. In the present case the firstappellant purported to have herself seen the respondents setting fireto her house. It appears to me that, in view of this fact, the learnedDistrict Judge was quite entitled to consider not only .the demeanourand credibility of the first appellant, but also the inherentimprobabilities of her story, such as the commission of arson inbroad daylight, and her entire indifference to the fate of her youngchildren whom she left in the house before it was set fire to, andwho, for aught that she knew to the contrary, were at the mercyof the flames. On the whole, I see no reason to differ from theDistrict Judge’s finding that dolus malus was established.
I would dismiss the appeal with costs as regards the first appellant,who will pay to the respondent the sum of Us. 200, and allow it withcosts as regards .the second.
Grknieb A.J.—I concur.
1901.
June 1.
WoodRbntqv J.
Judgment varied.