Principles

·  Tort—Malicious prosecution—Definition of reasonable and probable cause

·  Tort—Malicious prosecution—Malice and want of reasonable and probable cause must be proved

To prove malicious prosecution, plaintiff must in addition to malice show that defendants prosecuted upon grounds which would not lead an ordinary prudent and cautious man to believe the person charged was probably guilty.

To prove malicious prosecution, plaintiff must in addition to malice show that defendants prosecuted upon grounds which would not lead an ordinary prudent and cautious man to believe the person charged was probably guilty.

Judgment

      Advocates: Sulman Dahab and .Mohamed Ahmed Orabi for the plaintiff

      E. Kronfli…………………………………for the defendants

      Salah Eddin Hassan P.J. May 5, 1964, HC-CS-9-1959:- The plaintiff is a taxi car owner on a large scale. Defendants are a motor agency. Plaintiff has been dealing with them for a number of years since 1953. He used to buy Hillman cars from them on hire-purchase terms and work these cars as taxi cars. The transactions which have been the outcome of this litigation are concerning five hire-purchase agreements in respect of twelve cars. All the five agreements were made in 1956. For the details of these agreements see page 17 with the title (admissions on claim and counterclaim). The agreements are referred to in the exhibit envelope as Exhibits 1, 2, 3, 4 and respectively. The plaintiff signed promissory notes corresponding to the said five agreements covering the monthly hire in favour of defendants.

The plaintiff failed to pay the said hire of the said cars when it fell due and eventually another five hire-purchase agreements corresponding to the previous ones were entered into in substitute thereof in January 3, 1957. They are exhibits 6, 7, 8 and 10. For details see admissions on claim and counterclaim.

      The plaintiff also committed breach of the said hire-purchase agreements and eventually another agreement similar to those of January 3, 1957 was made in September 21, 1957, between defendants as owners and the plaintiff as hirer in respect of nine of the said cars, namely, cars Nos. 2K 5423, 2K 5424, 2K 5456, 2K 5457, 2K 5458, 2K 4260, 2K 5517, 2K 5604 and 2K 5624.

      The gist of the last agreement was that plaintiff shall deliver the hire cars to the management of defendants who shall run them as taxi cars or dispose of them in any manner suitable without prejudice to defendants’ rights under the hire-purchase agreements. The purpose of this agreement was to make an attempt and cover plaintiff’s obligation under the agreements from the income derived thereof as plaintiff utterly failed to pay the outstanding balance due.

      Plaintiff again committed breaches of these agreements.

      All these facts are not in dispute.

      After this in January 6, 1958, defendants lodged a criminal information against plaintiff accusing him of removing some major parts in the cars, the subject of the agreement to other cars owned by plaintiff. The criminal procedure was set in motion and the proceedings culminated in a non- summary trial by Police Magistrate, Khartoum; the result was the acquittal of the accused in May 18, 1958, on technical grounds as the acquitting magistrate ruled that the ownership in the cars was already vested in plaintiff. All these facts are not in dispute.

      These introductory passages I hope have given a vivid picture of the relationship that existed between plaintiff and defendants prior to the institution of this claim and counterclaim.

      Some six months after his acquittal plaintiff raised this claim based on two causes of action namely:

I. Damages for malicious prosecution details as follows

(i) £S.I,337.500m/ms income of cars No. 2846 for 15 days in which they were detained by police;

(ii) 450.000m/ms expected profit from car No. 2K 3233 held by police for six months;

(iii) I,350.000m/ms loss, expected income from cars Nos. 2K 1644, 2K 1695 and 2K 1287 detained by police for six months;

(iv)

£500.000m/ms loss of reputation, health and peace of mind on a result of information.

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      £S.2,337.500m/ms

II. £S.5,400.000m/ms expected income for nine motor cars during period March 1958 and end of October 1958 during which period the defendants did not run these cars according to their agreement but on the contrary stored them.

      Plaintiff reserves his rights for further damages from end of October up to day of judgment.

      £S.I,125.000m/ns being expected income from the substitute of a damaged car which defendants entitled payment of insurance money.

      Defendants on the other hand denied that they have ever been malicious in their prosecution. And further denied any failure on their part to carry out the agreements referred to by plaintiff and finally they counterclaimed for £S.4,080.000m/ms, being balance due under the hire-purchase agreements, and for £S.300.000m/ms, being value of three cars retained by plaintiff.

      The case as appears from the above facts is not so complicated as the idea one derives from a glance at the record and especially the issues. The issues could have been far fewer and comprehensive; instead issues overlapped and there were quite unnecessarily admitted facts.

      I was unfortunate as far as this case is concerned. I had to fix a day for hearing before I had any time to go through the record and now I am writing the judgment, over a year and a half since I heard the last witness, in London while I am doing an extensive course of study.

      I have to thank both counsels for plaintiff and defendants for their co-operation in going through this long hearing and also their patience, apart from a very slight incident; and now I deal with the major issues.

      Issue No. 1: Did defendants intentionally and maliciously lodge an information against plaintiff?

      The answer is flatly “no.” Both advocates did a wonderful explanation of the law respecting. This point and each endeavoured to interpret the existing .authorities in his favour, but unfortunately for the plaintiff the burden was hopelessly too heavy for him in this case.

      Malicious prosecution of criminal proceedings which causes actual damage to the person prosecuted is a tort actionable at the suit of that person. It consists in instituting unsuccessful criminal proceedings maliciously and without reasonable and probable cause.

This tort is not regarded with favour by the courts, because it runs counter to the policy of freedom to prosecute suspected criminals and to the interest in bringing litigation to a close. This judicial attitude is reflected in the development of the requirement that there must be absence of reasonable and probable cause. This is casting on the plaintiff the difficult task of proving a negative burden which he does not discharge merely by proving malice on the part of the defendant. The House of Lords has approved the following definition of reasonable and probable cause in Hicks v. Faulkner (1881) 8 Q.B.D. 167, 171; affirmed (1882) 46 L.T. 130 (C.A.), and recently approved in Herniman v. Smith [1938] A.C. 305, 316:

      “An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.”

      I presume the difficult burden upon the plaintiff is naturally apparent, and in order to show how real the difficulty is, I quote an interesting argument by Denning L.J. in Tempest v. Snowden [1952] 1 All E.R. 1,5.

      “It is sometimes said that to have reasonable and probable cause there must be an honest belief in the guilt of the accused. I do not think that should be regarded as a universal proposition applicable to all cases. It depends upon the particular case. There are many justifiable prosecutions where the prosecutor has not himself form any concluded belief as to the guilt of the accused. If he is a very fair-minded man he may well say to himself: ‘The case is so black against the man that I feel I must prosecute, but I am not going to believe him to be guilty unless the court finds him to be so.’ Such a man would, I should have thought, have reasonable and probable cause for instituting a prosecution even though he did not affirmatively believe the man to be guilty. It is also said sometimes that to have reasonable and probable cause there must be an honest belief that there was reasonable ground for prosecuting. This, again, is by no means always necessary. Let me give another illustration. Take a prosecutor, a fair-minded man, who is personally convinced that the man is guilty, but does not himself think the evidence is sufficient to justify a prosecution. His solicitor advises him that the evidence is sufficient. He may well say to himself: ‘I do not myself believe there is sufficient evidence, but my solicitor says there is, so I feel justified in going on.’ If the judge afterwards takes the same view as the solicitor, I should have thought that such a man would

have reasonable and probable cause for instituting a prosecution, even though he did not himself affirmatively believe that there were reasonable grounds for it. . . . It has to be remembered that, even though a prosecutor is actuated by the most express malice, nevertheless he is not liable so long as there was reasonable and probable cause for the prosecution. If envy, hatred, malice and all uncharitableness do not deprive him of this defence, I do not see why his state of belief should necessarily do so.”

      Now let us fix the facts of this case to the law exposed above. It has been proved by evidence that the accuser (defendants) was informed by plaintiff’s agent, Mr. El Hudi, that plaintiff was changing the engines and some parts of the defendants’ cars and using them on his own cars. Defendants have to protect their interests in their cars and the information brought by plaintiff’s agent is adequately reasonable on grounds to justify defendants to proceed. Nevertheless, defendants put the matter before their legal adviser who advised the prosecution. Having decided that defendants proceeded upon reasonable and probable cause, I also rule that malice is completely out of place, since the relationship between plaintiff and defendants, as appears from the evidence, is the relationship of a creditor and a defaulting debtor. Moreover, the defendants proved all the facts on which they ruled on their prosecution and the trial judge acquitted plaintiff and closed the findings with these sentences:

      “I think the accused must consider himself lucky: the grounds are purely legal grounds. He did not know that he was a purchaser of these cars and he certainly tried and did succeed to remove these parts of the cars as alleged in order to cause loss to Barsamian and gain for himself.”

      Accordingly, the first cause of action upon which plaintiff was claiming £S.2,337.500m/ms is hereby gone with the wind, being basically unjustifiable.

      The second cause of action based on defendants’ failure to carry out an obligation under the last agreement does not need much discussion. Plaintiff is alleging that defendants in breach of this agreement stored nine cars instead or running them as taxi cars and thus deprived him of an expected income of £S.5,400.000m/ms from end of March 1958 U to October 1958.

      From the evidence produced by both sides I am convinced that defendant company did not commit any breach of the agreement, and on the contrary several efforts have been made by defendant company and by other independent contractors to exploit these cars as taxi cars, but all efforts proved a failure because commercially the cars could only be run at a loss. Strong evidence tended to prove that buying new cars was better

than repairing the old ones as the cost of repairs is not very much less than buying new ones. The only mistake made by defendants was that they stored the cars and they are still stored in a yard up to today. The best solution was to sell them then and there as scrap or spare parts. I have noticed in the record an application by defendants to the court to order sale of these cars on April 5 1960. The court started to hear the application but no final order was made. Anyway, so far as the matter has been placed before the court, both parties are equally to blame because they ought to have pressed on the court every now and then to order sale.

      As far, as the insurance policy of the destroyed cars is concerned, this amount of money is under provisional attachment by order of this court and this amount will be ordered to be credited to plaintiff to defray any outstanding balance due from them on the counterclaim. So the claim having to be dismissed, let us at last decide the issues on the counterclaim.

      The counterclaim is straightforward and as far as I can see from plaintiff’s own statement, he is admitting all facts alleged by defendants on the counterclaim. The five hire-purchase agreements are admitted. All subsequent agreements are admitted. All accounts rendered by defendants in court were admitted by plaintiff in person. All moneys paid by plaintiff were duly credited to him by defendants. (See the statement of plaintiff in the record.) The accounts of defendants show an outstanding balance of £S.4,080.000m/ms to which they are therefore entitled to judgment with proportionate costs and advocate costs.

      Babiker Awadalla J. October 5, 1964: This is an application for review of the order of this court dated August 31, 1964, dismissing the appeal by present applicant for failure to submit grounds.

      A memo of appeal had previously been filed in the said appeal on August 20, 1964, but had been returned by this court with an order to submit a proper memorandum complying with the following conditions:

(i) stating separately the grounds of appeal against the decision of His Honour the Province Judge concerning (a) the claim and (b) the counterclaim;

(ii) setting forth the grounds of objection concisely and numbering them consecutively; and

(iii) containing no argument.

      The above are in fact the requirements of rule I of Order XI.

      Applicants’ advocate was notified to submit a correct memorandum on or before August 29, 1964, but he failed to do so and ‘his appeal was dismissed.

      He submitted the present application for review and was told that the court would be prepared to review its order of dismissal should a proper memo be submitted on or before September 20, 1964, but the learned advocate is now submitting a memo which is no improvement at all on the

earlier one. It does not set forth concisely and under distinct heads the grounds of objection to the decree appealed from. Moreover it completely ignored the important rule that a memo should contain no argument. The present memo is to my mind nothing but a submission by the learned advocate on the legal aspect of the case as viewed by him. It is high time that advocates should know how a memo should be prepared.

      We therefore find no reason justifying a review of the previous order of dismissal.

      This application is therefore dismissed.

      M. A. Abu Rannat C. J. October 5, 1964:—I concur.

      Editors’ Note: - But see on the issue of want of reasonable and probable cause, A. L. I. Restatement, Torts, s. 662, Comment(j):

      “Mistake of Law. While a mistaken belief in regard to the facts may furnish probable cause for initiating criminal proceedings, a mistaken belief as to the legal consequences of a person’s conduct does not furnish probable cause unless based upon the advice of counsel as stated in section 666. Hence if, through ignorance of the law, an accuser erroneously believes that the actual or supposed acts or omissions of the accused are such as to constitute the offence charged against him, his mistaken belief in the guilt of the accused, no matter how reasonable in a layman, does not give him probable cause for initiating the proceedings unless it was due to the advice of counsel as above stated. A layman does not act reasonably in relying, in so serious a matter as the initiating of criminal proceedings, upon the accuracy of his legal knowledge.”

      See also: Clerk and Lindsell, Torts, s. 1718 at p. 908 (12th ed. 1961) and Salmond, Torts 724, n. 7 (13th ed., Heuston, 1961). “If the prosecutor were mistaken, not as to facts, but as to law, he acts with reasonable and probable cause if the law upon the point be intricate or uncertain.” Winfleld, Tort 629 (5th ed. 1950 See authorities cited at 25 Halsbury, Laws of England, 358 n. I (3rd ed. 1958). See also 34 Am. Jur. Malicious Prosecution, s. 52; 65 A. L. R. 243; Bart v. Smith 203 U.S. 129.

      In Abdulla Ahmed Abdulla v. Ismail Bishara, DC-CS-339-1952 (El Obeid), affirmed, HC-REV-1-1953 (El Obeid) (Hayes J.), the District Court, per Babiker Awadalla D.J citing Hicks v. Faulkner, supra, stated:

      “The onus of proof of the existence of such facts is on the defendant and he admitted in his own evidence that at the time he made the information he had no knowledge of all the evidence available against plaintiff and that that was why he did not take D.W.s 1-6 before the police. This was in fact a damaging statement for in

effect it is tantamount to an admission that he had elected to set the law in motion without having minimum requirable evidence. In the court’s view, no reasonable man would have embarked on so serious a charge without even a scratch of evidence and defendant had therefore failed to discharge the onus on him.

      “False imprisonment is one of the wrongs actionable per se. Once the tort is proved, plaintiff is entitled to recover general damages for the inconvenience, indignity and discomfort suffered by him. The court is not satisfied that there was any special damage in the case. Plaintiff asserts that he had paid money for legal advice in order to pursue his civil rights in the matter. The court rejects a claim for such. damage because it cannot be said to have arisen directly from the tort. Had the money been paid to a legal counsel to procure a release from the imprisonment itself, then the question would have been quite different.

      “The court will therefore only award general damages in the assessment of which due consideration will be given to the defendant’s persistence on the charge both in court when he pleaded that the charge was not false and out of it when he again laid an information to the police on November 17, 1952, accusing plaintiff of the same act of which plaintiff had already been discharged. On this latter charge, plaintiff was again discharged after a lengthy examination of the P.Ws who were in fact the D.Ws in this case. It is not of course the intention of this court to award prospective damages for any tort likely to have been committed by defendant in setting the criminal law in motion a second time, but the court is entitled to take into consideration the fact that defendant was highly arrogant, persistent and contumelious. Quite apart from that, the defendant caused four different searches to be made on the premises of plaintiff and plaintiff’s friends, thereby giving unnecessary and unjustifiable publicity to the false charge and no doubt causing great mental agony and discomfort to plaintiff.”

      On the requirement of “malice,” see Abdel Halim Ibrahim Taha v. Girgis Naeem Dawalibi, AC APP-9-1957, (1960) S.L.J.R. 10, 13 (Osman El Tayeb P.J.).