(NORTHERN PROVINCE COURT)

AND

(COURT OF APPEAL)

ABDEL HALIM IBRAHIM TAHA v. GIRGIS NAEEM

DAWAEJBI

(DPC-CS- 167.1956)

( AC-APP-9-1957)

Principles

·  Malicious prosecution -— When does “prosecution “ begin? — Malice -- Absencee of.reasonable and probable cause

A large sum of gold was stolen from the shop of a relative of the defendant. Whilst the police were investigating another suspect at the plaintiff’s shop the defendant saw the plaintiff load his donkey and ride away. Defendant lodged information with the police, accusing plaintiff of being in possession of some of the stolen gold. Acting on the information, the police arrested the plaintiff and searched him. A warrant of search of the plaintiff’s shop was obtained from a justice of the peace and plaintiff’s shop was searched in his, presence. The police found nothing incriminating and plaintiff was then set free. Plaintiff brought an action for malicious prosecution against defendant, claiming £500 for injury to his reputation.
In the Province Court it was—
Held: (i) That arrest and search without warrant by the police does not amount o a prosecution, but that there is a prosecution after a person clothed with judicial authority has set the law in motion,-e when a magistrate has given directions under section 114 or section ifl of the Code of Criminal Procedure.
(ii) That in the circumstances defendant acted without reasonable and probable cause, but there was no evidence of malice, in the sense Of improper motive, on the part of defendant and so he was not liable.
On application for revision to the Court of Appeal it was—
Held: The burden of proving absence of reasonable and probable cause 35 well as malice was on the plaintiff and in the circumstances plaintiff had failed to show both malice and absence of reasonable and probable cause.

Action

The parties appeared in person.

May 23. 1957. Osman El Tayeb P.: — is a merchant o’f LI Darner. He started hu with his late father, and later with his elderbrother until they entered into a registered partnership in 1956. Plaintiff is still a young man. He is claiming damages assessed at £500 for injury caused to his reputation, basing his action on the tort known as malicious prosecution committed by the defendant, by giving information to the police accusing him of being in possession of some stolen gold, and thereby moving the police to act relying on that information.

It happened that some months ago a big amount of gold was stolen from one Latif Sabagh at Atbara. The police at Atbara and at El Darner were working hard to detect that theft and in that they were seeking the help of any person who was prepared to render any. Defendant, a resident of El Damer, is the close relative of the owner of the stolen gold, and so by reason of that relationship he became interested in detection of the crime and was prepared to assist the police. With this purpose, defendant, one day in early October 5956, gave information to the police at El Darner to the effect that he was accusing plaintiff of being in possession of some of the stolen gold. Relying on this information the police overcame plaintiff outside the town while the latter was on his donkey going to his village. He was brought back to the police station. He was searched and none of the stolen gold was found on him. At the same time a warrant of search was obtained from a justice of the peace for the search of plaintiff’s shop and that was done in the presence of plaintiff without a positive result. Then plaintiff was set free. It seems that this took no more time than was necessary to complete the search. During this time, however short it may be, the plaintiff was under arrest. The charge of receiving stolen property is a cognisable offence for which the police may arrest without a warrant, and the search of plaintiff’s shop was with warrant issued by a judicial officer, who has such powers to do so under the law.

It is contended on behalf of plaintiff that this constituted malicious prosecution; that the defendant by giving information to the police and inducing them to act in the way they did, had no reasonable and probable cause and was actuated by malice; and that plaintiff suffered damage to his reputation and liberty.

In both England and India it is an actionable wrong to set the law in motion by initiating criminal proceedings against a person maliciously and without reasonable and proper cause. We have to accept and apply the same principles in our courts in so far as they constitute a wrong affecting the freedom and reputation of the individual. The basis of the action is wrongly setting the law, in motion. It is the right of everyoneto put the law in motion if he does so with the honest intention of protecting his own or the public interest or when his intention is to assist in securing the ends of justice. In some certain matters or cases an cedinary individual is bound by law to give information to the police, when he has reasonto believe that an offence was committed of the class described in section 109, Code of Criminal Procedure. Whether it be a right or a duty it must be exercised bona fide and not without reasonable and probable cause. If’ there be abuse of the right or that duty allowed for the purpose of securing the ends of justice, then there will be an actionable wrong.

There is some divergence of opinion in India as to the kind of prosecu tion that would become actionable. In English law a prosecution must be initiated before a person clothed with judicial authority. “To prosecute is to set the law in motion, and the law is only set in motion by an appeal to some person clothed with judicial authority, in regard to the matter in question. If the charge is made to a police constable, who thereupon makes an arrest, the party making the charge, if liable at all, will be liable in action for false imprisonment, on the ground that he has directed the arrest, and therefore it is his own act and not the act of the law. But if he goes before a magistrate who thereupon issues his warrant, then his liability, if any, is for malicious prosecution”: Clerk and Lindsell on Torts, 1oth ed., p. 8o5

In India the same rule applies that the law can only be set in motion by an appeal to a person clothed with judicial authority, i.e., a magistrate. In case the complaint was made to a policeman or a police officer on duty and that he acted upon it without directions from a magistrate; that he caused the arrest of the plaintiff in a cognisable offence, there was no prosecution. As to the limits of the meaning of a prosecution, it is useful to quote Ratanlal’s The English and Indian Law of Torts15ed., p. I84::

“The Privy Council has ruled that to found an action for’ damages for malicious prosecution based on criminal proceedings, the test is not whether the criminal proceedings have reached a stage at which they may be corfectly describ as a prosecution, but whether such proceedings have reached a stage at which damage to the plaintiff results. The Board were not prepared to go as far as some of the courts in India in saying that the mere presentation of a false complaint which first sought to set the law in motion would per se found an action for damages for malicious prosecution.”

In this case defendant gave the information to El Darner police. They overcame plaintiff outside the town while he was going to his village, and they brought him back to the police station in the town. This is arrest on information of an offence on which the police may arrest without a warrant. Up to this point it is clear that there was no prosecution. Next the police obtained a warrant of search from a justice of the peace, and searched the shop of plaintiL. Nothing was found and plaintiff was re leased. In some courts in lpdia this was considered to be prosecution and that defendant was held liable. I think that the opinion, which we have to adopt, is that the magistrate or a justice of the peace is the person whocan put the law in motion. That the information was lodged with the police by the defend and that the police, relying on that information, have started any investigatIon and even up to arrest nd search of plaintiff, when they can do so without a warrant, and that there was no positive result, and plaintitl was released, is not prosecution. The prosecution starts after the magistrate has given directions under section 114 or section 122 of the Code of Criminal Procedure. Again we have to consider this as the stage at which damage results to the plaintiff. The search of plaintiff’s shop at the market area in the presence of many persons con sequent on accusing him of receiving stolen property, is certainly an act causing injury to his reputation. As the search was conducted by virtue of a warrant signed by a person judicially authorised to do so, then I come to the conclusion that there was prosecution.

The other important point is whether defendant in giving the informa tion to the police had acted maliciously and without reasonable and probable cause. “The term ‘ malice’ in this form of action is not to be considered in the sense of spite or hatred against an individual, but of mains animus and as denoting that the party i actuated by improper and indirect motives. The proper motive for a prosecution is, of course, a desire to secure the ends of justice. If a plaintiff satisfies a jury, either negatively that this was not the true motive of the defendant or affi-rma ively that something else was, he proves his case on the point”: Clerk and Lindsell on Torts, ioth ed., pp. 82o—821,

In our case there is nothing before the court on the side of plaintiff to prove that defendant’s motive was something other than a desire o secure the ends of justice. A large amount of gold was stolen from a shop of a relative of his atAtbara in a most exciting manner by making a hole in the roof of the shop. Defendant was clearly anxious to assist in the detection of the case. This was his motive which clearly pertains to a desire to secure the ends of justice. In the alternative, however, there is nothing to indicate a contrary or any other specific intention. The relations between the parties were normal and rather friendly up to the material time, there was nothing to suggest any improper or indirect motive, and also nothing to show any wish to injure the plaintiff.

It remains to give an opinion about lack of reasonable and probable cause. This may seem to be for practical purposes unnecessary, because lack of reasonable and probable cause must be coupled with presence of malice in order to establish liability. I discussed malice first because I find it clear in my mind that malice in fact, a motive or desire to injure, does not exist, and that on the other hand it is doubtful whether defendant was careful and cautious enough in the circumstances before lodging the information.

The facts on which defendant made up his mind were as follows:

He successfully gave information about two persons, namely, Rabie and Ahmed Khalifa, who were accomplices and their arrest led to the detec tion of the gold theft of Atbara. These two or one of them mentioned the name of one Mohamed El Tayeb. The latter is a relative of plaintifi. A policeman came with summons to this person, and was looking for him at plaintiff’s shop, at a time when Mohamed El Tayeb ‘as actually there. The name in the summons was wrongly written Mohamed Ibrahim Taha. Plaintiff put the policemen in doubt as to whether the person required was this or that. The policeman went to the telephone to inquire from the office. During this Mohamed El Tayeb left plaintiff’s shop to go to his own, and then plaintiff brought his donkey saddled, and loaded it with the saddle-bags. He took some articles from the shop, put some in the bags and some in his pocket and rode away, going to the village. Defen dant suspected that those articles—not known to him—as he was looking from a distance, were some of the stolen gold.

Now can we say that a reasonable and prudent man would on those facts feel satisfied and convinced that plaintiff was in possession of the stolen gold? I should say the answer is no. It is acceptable that the circumstances may rightly cause defendant to suspect, -but not believe or on sufficiently strong grounds to accuse, plaintiff of possession of the stolen gold. The conclusion is that defendant was honest, but indiscreet. He is. therefore, not liable in damages.

Had plaintiff succeeded in this case he would have been entitled to general damages in the region of about £ 100.

Case is dismissed with costs.

                                                                            (Judgment for deteridant)

Application for leave to appeal

Advocate: Ahmed Zein el Abdin br applicant

June 12, 1957. M. I. el Nur I.: —In my view there is no merit in this application for leave to appeal against the judgment passed by Province Judge Northern Circuit in his CS/ 167/1956. No action lies for the institu tion of legal proceedings, however destitute of reasonable cause, unless they are instituted maliciously, that is to say from some wrongful motive. Malice and absence of reasonable and probable cause must unite in order to produce liability.

In the present case the learned Province Judge said rn his judgment:

“there is nothing before the court to prove that ef motive was something other than a desire to secure the ends of justice . . a large amount of gold was stolen from a shop of a relative of his. Defendant was clearly anxious to assist in the detection of the case . . .. There is nothing to suggest improper motive.” This is supported by evidence. The absence of malice alone destroys appellant’s case, and apart from that appellant totally failed to prove the absence of reasonable cause on the part of respondent. The burden of proving absence of reasonable and probable cause is on the plaintiff who thus undertakes the notoriously difficult task of proving a negative. See Abrath v. N.E. Ry. (1883) 11 Q.B.D.440.

Apart from that burden which plaintiff did not discharge the learned Province Judge found on the facts disclosed in the case that defendant, when he lodged his information with the police, acted on a reasonable suspicion. I do not agree with the learned Province Judge that defendant was indiscreet because at the time he lodged his information to the police he did not believe on sufficient grounds that his information was bso lutely correct. Reasonable suspicion is quite ample in the circumstances.

For above reasons I think applicant has no hope of success and I suggest subject to the agreement of the Chief Justice that this application should be summarily dismissed.

June 16,1957. M. A. Abu Rannat C.J. : —I agree. I had the privilege of reading and confirming the conviction of the four accused who were involved in the gold theft. I do not think that defendant had any inten tion other than to help the police in detecting the crime. The appeal is hopeless and I dismiss the application summarily.

                                                              (Application summarily dismissed)