(COURT OF APPEAL) *

OMER EL HASSAN KAMBAL v. MUKHTAR SULEIMAN

AC-APP-221965-

Principles

·  Malicious Prosecution—Absence of reasonable and probable cause as well as malice on the part of defendant should be proved by plaintiff

To establish a cause of action of malicious prosecution; plaintiff should prove that the defendant had acted without reasonable and probable cause as well as maliciously to prosecute him It is a question of law to ascertain whether there Is reasonable and probable cause as well as malice, that is improper motive.

Judgment

Advocates: El Hag El Tahir and

Abdel Rahim M. Bashir………………………………. for applicant

Hassan Abdel Rahim J. February 22, 1966:—This is an appeal submitted against the decree passed by His Honour the Province Judge, Kordofan Circuit, in favour of respondent for damages for malicious prosecution and arrears of salary amounting to £S.266.690m/ms.

The facts of the case are in short as follows:

Respondent was employed as a driver in appellant’s lorry. Respondent was entrusted with the lorry which he drove to Gineina where he was instructed to deliver the load to appellant’s agent and receive the proceeds. When the respondent returned from the journey he failed to account for part of the income due from the lorry. A dispute started and ultimately appellant submitted a complaint to the police magistrate who ordered that an information be lodge against respondent under Penal Code, s. 8. Consequently respondent was arrested, kept in custody for one day and then released on bail.

The information was subsequently filed by the magistrate for lack of evidence.

Hence respondent claimed damages for malicious prosecution and judgment was passed in his favour by the Province Judge.

This appeal is raised against the decision of the Province Judge.

The grounds of the application are:

1. Appellant submitted a complaint to the magistrate who ordered that criminal proceedings be started against respondent.

2. There was a genuine dispute over the income of the lorry and there was reasonable grounds for the complaint.

3.There was no malice as the object of the appellant was to. know the truth about the income of the lorry.

It was argued by respondent that appellant started the proceedings with improper motive because he submitted to him the bills which he asked for.

In my opinion this application should be allowed. To succeed respondent should prove positively that:

1. The appellant instituted the criminal proceedings.

2. That the proceedings terminated in his favour.

3. The appellant without reasonable and probable cause.

4.Malice, i.e., improper and wrongful motive.

In this case the burden of proving malice and absence of reasonable and probable cause lies on respondent as in my opinion he failed to discharge it. On the evidence before the court below appellant gave the information to the magistrate who used his own discretion in the matter and his object in doing so was not to take revenge but to bring respondent to justice. The court below was wrong to hold that the prosecution is malicious merely because it was inspired by anger for the injury suffered or because the insured party was hasty in raising the proceedings In

this case appellant honestly believed in the guilt of respondent when he lodged the complaint and as such the prosecution of respondent was justified. See Herniman v. Smith (1938) 1 All E.R. 1.

Consequently the decree passed by the court below should be set aside and judgment shall be entered in for the. sum of £S.20.000/ms. in arrears of salary and respondent should pay the costs of this application.

Os-man El Tayeb 1. February 22, 1966 :—The learned Acting Province Judge (Mahdi Mohamed Ahmed) decided that when defendant instituted the prosecution against plaintiff, he acted without reasonable and proper cause, and maliciously. The grounds on which he based this decision do not appear to me to be of such strength as to justify such a decision. The absence of reasonable and probable cause for the prosecution, and the presence of malice are matters of law to be inferred from the facts. The learned judge said that defendant was moved by a motive of vengeance because plaintiff left the lorry behind and refused to bring it to El Obeid unless he was provided with money for expenses and petrol. He also said that defendant spoke harshly to plaintiff through the telephone, and threatened to complain to the police, unless plaintiff produced bills showing every item of expenditure. He further said that defendant acted hurriedly and without caution; he did not make proper inquiry as to the income and expenditure.

I doubt very much if these facts are sufficient to raise the inference against defendant. Plaintiff took charge of the lorry while it was on its journey, to. El Gineina. It was loaded.. Plaintiff received the freight, he sent £S. of it to defendant by post, and kept the remainder with him. The lorry was loaded from El Gineina to El Obeid with goods and passengers. At El Nuhud, the lorry was left by plaintiff, who reached El Obeid to tell defendant that the lorry was left there for lack of petrol and that he had no money left to buy it with. Plaintiff said that all the money he had he spent on repairs and personal expenses. Defendant did not believe him, and the bills submitted by plaintiff were not satisfactory. Defendant suspected that plaintiff misappropriated some of the money to his own use. The question is whether d honestly and reason ably believed in the dishonesty of plaintiff. In the English case Hetniman v. Smith (1938) s All E.R. 1,10 to, Lord Atkin said:

“No doubt circumstances may exist in which it is right, before charging a man with misconduct, to ask him for an explanation. But certainly there can be no general rule laid down, and, where a man is satisfied, or has apparently sufficient evidence, that in fact he has been cheated, there is no obligation to call on the cheat and ask for an explanation, which may only have the effect of causing material evidence to disappear, or to be manufactured. It is not

required of any prosecutor that he must have tested every relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but to ascertain whether there is reasonable and probable cause for a prosecution.”

Plaintiff was in charge of the lorry of defendant he left behind and came asking for money, while he was unable to satisfy defendant how he spent the money that was in his hands. Defendant here had ascertained a reasonable and probable cause for prosecution, but plaintiff had to make his defence.

As to malice, I do not think that the facts justify the inference thereof

on-the part of defendant. In Abdel Halim Ibrahim Taha. v. Girgis .Naeem Dawalibi (1960) SL.J.R. 10, it was said that malice is an improper and indirect motive. A proper motive for a prosecution is, of course, a desire to secure the ends of justice. The fact that defendant threatened to prosecute unless the bills were complete does not show an improper motive in him. It was only his right to do so, or the normal course that was open to him. He was a person after justice.

I would allow this appeal with costs.

Babiker Awadalla C.J. February 22, 1966:—I concur.

*Court: Babiker Awadalla C.J., Osman El Tayeb J. and Hassan Abdel Rahim J.