Appeal Court. 15th Dec., 1938.

 Claim for damage for malicious prosecution-Onus not discharged.

          The plaintiff and defendant were in dispute over land and the dispute terminated in the former's favour. Thereupon he entered the land and removed growing crops ·contrary to native. custom. He was criminally charged before the Native Court with stealing and destruction, convicted on both charges, and sentenced to imprisonment and a fine,. He appealed and was acquitted on the first charge but· as to the second the appellate tribunal was. silent. He then brought a successful action for malicious prosecution ill the Supreme Court from which the defendant appealed.

Held: The plaintiff failed

(1) to negative reasonable and probable cause for his prosecution;

(2) to prove that the criminal proceedings brought against him ultimately ended in his favour;                                          .

(3) to prove malice;

and appeal allowed.

H. A. H. Benjamin for Appellant.

 E. O. Asafu-Adjaye for Respondent.

The following joint judgment was delivered:-

KINGDON, C.d.; NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERR.A:LEONE.

         In this case the plaintiff-respondent and defendant-appellant had a dispute over land and there were proceedings between them in the Kumawu Native Court which resulted in defendant­ appellant's favour, but on appeal to the Asantehene's Court at Kumasi the decision was reversed. There were some growing crops on the land and the plaintiff-respondent, having got the judgment of the Asantehene's Court in his favour, went on the land and it is alleged reaped the crops and took them away and also damaged the crops. The defendant-appellant complained, and as a result the plaintiff-respondent was, with five others, prosecuted in the Native Court of Rumawu on the following two charges: -

       (a) For that you accused persons on or about the 29th day of May, 1936, at Wamasi on Dodomasi Stool land, E.P.A. within the jurisdiction of this Native Court did unlawfully commit larceny by stealing foodstuff (cocoa yams and plantains) from the complainant Kwadjoe Bandoh's farm lies at Wamasi.

          Contrary to section 103 Cap. 29 Volume] of the Laws of the Gold Coast Colony, 1928.

         (b) For that you accused, on or about the 29th day of May, 1936, at WamaBP on Bodomase Stool land E.P.A. within the juris­diction of this Native Court did unlawfully damage crops in complainant Kwadjoe Bandoh's farm lies at Wamasi, viz:­plantain, cocoa yams and pepper trees by means of destroying 'lame by cutlasses unwantonly.

            Contrary to section 93 Cap. 29 Volume 1 of the Laws of the Gold Coast Colony, 1928.

After hearing the evidence the Native Court gave the follow­ing judgment:-

"This is a criminal case brought by Opaning Kwadjoe Bandoh "(Krontihene of Bodomase) against the accused persons herein for " stealing and damaging his foodstuffs (cocoa yams, plantain trees and " pepper trees) in his farm lies at Wawase.

" The first accussed person Peter Kwakyi admitted that he ordered •• the other five accused persons to fetch cocoa yams from the farm in "dispute which was tilled by the complainant Kwadjoe Bandoh which " farm he the first accused has taken possession off on the ground that " he has obtained judgment in an appeal case before Nana Asantehene's " Court between the complaina!1t Kwadjoe Bandoh versus himself over " the land on which lies the farm in dispute.

" The complainant Kwadjoe Bandoh on the other hand contended " that although the first accused has obtained judgment in their recent " litigation over the land on which lies the farm in dispute but no order " from Nana Asantehene's Court which empowers him to take possession "of his farm containing foodstuffs, etc., and before the accused can "take possession of his farm there should be a notice from the first " accused to him given him certain time to pick his foodstuffs.

" After having heard the evidence adduced by both parties and their "witnesses, this Native Court found no grounds upon which the first " accused can clear himself from the charges preferred against him by " the complainant. Although he explained that he sent a verbal notice " to the complainant per his uncle Kofi Basoah telling him to quit from " the land. The said notice complainant denied knowledge' of and this " Court also did not take the said verbal notice into consideration.

" The previous matter was heard by Asantehene's Court " A " and " if the accused meant to give notice of removal to the complainant he " should have passed the notice through the said Court.

" Secondly the alleged bearer Kofi Basoah was involved in the recent " dispute between the accused and the complainant. He Basoah being "an uncle to the accused who was then the defendant-appellant and " it is hard for him to carry such a notice to the complainant who was "also the plaintiff-respondent.

" The point now for this Native Court to decide is whether it is lawful for the accused Peter Kwakyi to deprive the complainant " Kwadjoe Bandoh of the farm in dispute· without previous notice or not.

"In the opinion of this Native Court the action of the accused " Peter Kwakyi towards the complainant Kwadjoe Bandoh is unlawful. " If the accused has obtained judgment in their recent dispute over the •• 'land on which the farm in dispute lies he ought to have given notice ",in writing to the complainant given him some days to clear from the land and if he fails then the accused is at liberty to enter into the farm in dispute for possession but as there was no such notice this Native Court found the accused guilty.     

Findings:                                                                           

" First accused found guilty and sentenced to three months I.H.L." on the first count and a fine of £15 or in default three months I.H.L.

" on the second count. Sentences to run consecutively. Second, third, " fourth, fifth and sixth accused persons warned and discharged."

This was reviewed by the District Commissioner, Captain Dickinson, in the following terms:-

" Sentences too severe. Reduced in each case to a fine of £5 or one " month to run concurrently."

The plaintiff-respondent appealed to the Magistrate's Court at. Kumasi; hut. in the meantime suffered imprisonment for tell days before he was admitted to hail. The appeal was heard by Captain Dickinson who had already reviewed it, in his capacity as District Commissioner. He gave the following judgment;-

  The respondent and appellant have been in litigation for some time " over the ownership of a farm. Respondent first won the case in the •• KUll1awu Court and then appellant succeeded on appeal to the "Asantehene's Court. Appellant went and took growing crops which " are the subject of the theft. In my opinion 'the act of the appellant " does not in entry respect fulfil the terms in the definition of stealing " in that he had a claim of right.

" Judgment in the Kumawu Court is reversed and the conviction "quashed. No order as to costs."

The whole record of that appeal was not put in in the Court below and is not before us. So that we are unable to say definitely whether the appeal was against both the convictions, viz: -(a) for stealing and (11) for unlawful damage, or against that of stealing only. At any rate the reasons' given for the judgment apply only to the conviction for stealing.

The plaintiff-respondent then caused to issue his writ in the present suit claiming £200 as damages for malicious prosecution. After hearing the evidence the learned trial Judge delivered the following judgment;~

 In this case I am satisfied that there was no reasonable and "probable cause for the prosecution which was instituted by the "defendant against the plaintiff before the Kumawu T'ribunal.

"I have read the whole of the proceedings before the Tribunal, " and I have also read the judgment of Captain Dickinson before whom "the plaintiff lodged an appeal against his conviction. Captain "Dickinson's finding in favour of the plaintiff entirely accords with " my own view.

" I am 'definitely of the opinion that the plaintiff's act in taking "some of the crops from the farm did not amount to stealing. He "took the crops openly and under a genuine claim of right, and the " defendant was perfectly aware that the farm or the land was a bone " of contention between himself and the defendant.

"At the most, the defendant should have instituted civil " proceedings against the plaintiff.

"The defendant in my opinion, was not in the least justified in " setting the criminal law in motion in this arbitrary manner.

" Judgment for the plaintiff for thirty-three pounds two shillings­"£25 as general damages and £8 2s. as special damages, with costs " to be taxed."

We do not agree with this judgment for the following reasons:-

(a) The plaintiff failed to discharge the onus which was upon him to prove that the criminal proceedings terminated in his favour. So far as was proved in the lower Court or has been shown to this Court the conviction and sentence for unlawful damage still hold good.

(b) We do )Jot agree with the finding of the learned trial Judge that there was no reasonable and probable cause for the prosecution.

" In determining whether or not there is an absence of "reasonable and probable cause, the judge has to ask c. himself, whether a reasonable man, in the position of the " defendant, and having the knowledge which the defendant " in fact had or could and ought to have had, would have " supposed at the time of the prosecution that the prisoner " was guilty? If this question is answered in the affirmative, " there is no cause of action."

(Addison's Law of Torts, 8th Edition, p. 249.)

How can it possibly be said that there was no reasonable and probable cause in view of the following facts:-

(i) The Native Tribunal before whom the prosecution was had, and whose members would certainly have the same mental outlook as the defendant-appellant, convicted upon both charges.

(ii) Neither conviction was interfered with by the District Commissioner upon review.

(iii) No reason has been suggested in any judgment for upsetting the conviction on the second charge.

(iv) The conviction upon the first charge was quashed upon a point of law which it may well be difficult for an illiterate African, or indeed any untrained person, to understand.

We are of opinion that the question " Was there reasonable and probable cause" should be answered in the affirmative.

(c) But even if that question were properly answered in the negative, and if the plaintiff-respondent had discharged the onus of proving that the proceedings had terminated in his' favour, there would still remain the question of malice; the plaintiff­ respondent would have to prove that the defendant­ appellant instituted the proceedings maliciously. we think that he failed to prove this and it is note­worthy that there is no express finding by the learned trial Judge that the defendant-appellant acted maliciously.

For these reasons the appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside and it is ordered that judgment be entered in the Court below dismissing the plaintiff's claim with costs to be taxed. The appellant is awarded costs in this Court assessed at £28 15s. 9d.