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Tort-Malicious prosecution-Defendant making a charge groundless to his knowledge.

The plaintiff's husband and the defendant, a close relative of his, lived in one town; she, for a long time, lived in another town, far away, having abandoned her husband, and never went back until the police arrested her and took her back to their town to face a charge of stealing goods from the defendant's house, in consequence of a report made to the police and of an information laid before the Magistrate by the defendant. In point of fact she had already left their town and was living at her new place of abode at the time of the alleged theft. It was a trumped-up charge designed by the defendant to get the plaintiff back so as to enable a summons for adultery to be served on her at her husband's instance and it was served on her when she was brought back by the police. She sued the defendant for malicious prosecution with success, and the defendant appealed.

In the appeal it was argued for him that if, as had been proved, he laid the information before the Magistrate and the Magistrate then issued a warrant, it was not the defendant who initiated the proceedings: all he did was to give information of an offence.

Held: The appellant made a charge which was groundless to his knowledge; the prosecution of the respondent was initiated by him without reasonable and probable cause, and the respondent was rightly awarded damages for malicious prosecution.

Cases cited:-

(1) Danby v. Beardsley, 43 L.T.R. 603.

(2) Pandit Tewari v. Sardar Bhagat Singh and anoy., 24 T.L.R. 884. Appeal by defendant: No. 3672;

F. R. A. Williams for Appellant.

(No Counsel for Respondent.)

The following judgment was delivered:

Coussey, J.A. Only one ground of appeal has been taken and that is that the learned trial Judge erred in holding that the prosecution of the plaintiff was initiated by the defendant. It is submitted that there was no evidence that the defendant was the prosecutor or was actively instrumental in presenting the charge preferred against the plaintiff.

The evidence established conclusively that, at the time of the alleged theft, of which the plaintiff was charged, she was at Munshi or Agege, a village on the outskirts of Lagos, and that from the year 1947 until she was taken to Benin City under arrest on this charge of theft, she had never been in or near Benin City. The defendant, it was proved, went to the police at Benin in January, 1950 and made a report to the effect that the plaintiff had stolen from his house at Benin City in June, 1949 a piece of cloth of the value of £2 10s. 0d. and £5 in cash. It was found by the learned trial Judge that this was a trumped-up charge. because the plaintiff, who was then the accused, was not physically in Benin City within a year and a half of the time alleged in the information and further that the charge had been trumped-up by the defendant deliberately with the object of contriving the return to Benin City of the plaintiff through the machinery [pg 73] of the law and under arrest in order that her husband, a close relative of the defendant, who~ the plaintiff had left in the year 1947 and between whom and herself she desired to place the greatest distance possible, could exert dominion over her. In fact, as soon as she was taken to Benin City under arrest, a Summons for adultery was served upon her at the instance of the husband.

It has been argued that if, as is proved, the defendant laid the information against the plaintiff before the Magistrate, and the Magistrate then issued his Warrant, as provided for by section 97 and 23 of the Criminal Procedure Code, then the defendant could not be said to have initiated the proceedings, in that he had done nothing more than what was required of him as a citizen in giving information of an offence which had occurred. There might be some force in this argument if it had been established that the defendant did not go beyond giving what he believed to be correct information to the police and genuinely swore to the information on which the warrant was issued. The facts, however, as found by the learned Judge, are that the defendant made a charge groundless to his knowledge and which amounted to a gross abuse of legal process. Mr. Williams who made his submission on this point with great clarity and referred to the case of Danby v. Beardsley (1), is not altogether supported in his argument by some of the passages in that report. In that case it is clear that the defendant had reason to believe that the accusation he was making was, as far as his knowledge went, genuine. In this case, however, it is clear that the defendant could have ha"d no belief in the information which he laid against the plaintiff, because the incident which he alleged had taken place never in fact occurred.

The facts are far more approximate to the case of Pandit Tewari v. Sardar Bhagat Singh and Anor. (2), where it was held that if a charge is false to the knowledge of the complainant, if he misleads the police by bringing suborned witnesses to support it, if he influences the police to assist him in sending an innocent man for trial, he cannot escape liability, because the prosecution has not technically been conducted by him.

I think the facts in the present case are clearly distinguishable from the case of Danby v. Beardsley (1), and the learned Judge was right in holding that the prosecution was initiated by the defendant and that there was absence of reasonable and probable cause. I have seldom in my experience encountered a case where the facts so strongly support a claim for malicious prosecution as those in the present case. In my opinion, the Judgment is right and the learned Judge was very generous to the defendant in not awarding more damages against him.

Foster-Sutton, P. I agree. There could not be a clearer case of malicious prosecution. The case is dismissed, and we will make an order as to costs tomorrow because we are not able at the moment to ascertain whether the respondent obtained a copy of the record.