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BOATENG VII v. YEBOAH AND OTHERS


  • New
  • 1960-02-08
  • HIGH COURT
  • GLR 17-19
  • Print

ACOLATSE J.


Summary

Malicious prosecution?-Absence of reasonable and probable cause?-Inference of malice?-Effect of nolle prosequi for purposes of subsequent action for malicious prosecution.

Headnotes

The defendants were subjects of the Abetifi Divisional Stool, through which they served the plaintiff, the Paramount Chief of Kwahu. On January 14, 1958 they made a complaint against the plaintiff to the police; the complaint, supported by an affidavit, alleged extortion. On January 22, the police station diary noted, " Police cannot interfere. Nothing criminal disclosed." The defendants then brought a private prosecution in the District Magistrate's Court, Nkawkaw against the plaintiff. The proceedings opened on April 12, 1958, as a preliminary investigation with a view to committal. It was concluded on June 20th, when the District Magistrate found that a prima facie case had been made out, and committed the plaintiff to stand his trial at the next criminal assizes to be held at Accra. The Attorney-General, however, entered a nolle prosequi, and on October 12, 1958, the plaintiff instituted the proceedings against the defendants for malicious prosecution. He claimed 30,000 special and general damages.

Judgement

ACTION for damages for malicious prosecution. The facts sufficiently appear from the judgment of Acolatse J.

(His lordship stated the facts and continued).

The evidence led before me by the plaintiff was that the three defendants had appeared before arbitrators at the Ahenfie in Abene upon a complaint lodged by the plaintiff in December, 1957, the complaint being that they had offended him by paying dues to the Adontenhene of Abetifi without his (the plaintiff's) consent. The Korantenhene presided at the arbitration; the plaintiff did not sit thereon. The defendants, with others, were held liable by the arbitrators, and in consequence the defendants made an apology to the plaintiff in the presence of the elders. According to custom they paid pacification fees willingly, and provided Schnapps which all drank. On December 14, 1957, however, the defendants addressed to the Adontenhene of Abetifi a letter in which they complained of the pacification fees which they had had to pay at the arbitration. They alleged that the only accusation against them had been that they had contributed voluntary subscriptions towards the maintenance of the Abetifi School. "Unless Nana" (i.e. the Adontenhene) "has another means of redress for us we will beg that Nana reimburse us of the monies, as it is for your sake that such fines were inflicted on us."

I am satisfied from the evidence on record?-and the point is not in dispute?-that the defendants preferred (by means of a private prosecution, assisted by their counsel) a criminal charge against the plaintiff before a judicial officer, upon which complaint the plaintiff, after a preliminary investigation, was committed for trial at the assizes to be held at Accra. The question is, did the defendants act with reasonable and probable cause? They had not made any complaint to the plaintiff (or to the elders who sat on the arbitration) after the payment of the pacification fees, nor did they make any complaint to the local native authorities. In their letter of December 14, 1957, to the Adontenhene they said that the reason why they had had to pay pacification fees was that they had made " voluntary subscriptions towards the maintenance of the Abetifi School." The letter does not allege that the plaintiff extorted the fees from each defendant by means of threats, to wit, that if each failed to pay him the said fees he would eject each from his Hwehwee land. Nor was any particularisation of threats used by the plaintiff provided by the affidavit sworn by first defendant, (for himself and on behalf of the other defendants) in support of the complaint to the police. The defendants must have been informed by the police of the result of the investigation (i.e. that no criminal offence was disclosed) and yet they persisted in the prosecution of the plaintiff. I take into account the evidence that the defendants are all of Abetifi and directly under the Adontenhene, and that at material times there was bad feeling between the Adontenhene and the plaintiff.

The case of Hicks v Faulkner ((1881) 8 Q.B.D.167) is an authority on the nature of ?"reasonable and probable cause?". In short, ?"there must [p.19] be an honest belief of the accuser in the guilt of the accused. Such belief must be based on a reasonable ground.?"

On the evidence as to what took place at the Ahenfie I find that the defendants apologised and paid the pacification fees willingly to the elders who sat on the plaintiff's complaint. I find that the threats alleged in the particulars of the offence charged against the plaintiff were not in fact made. I therefore find that, in prosecuting the plaintiff under the circumstances revealed in the evidence, the defendants acted without reasonable and probable cause as defined by Hawkins, J. in Hicks v. Faulkner (supra).

As to the question of malice, I find that sufficient evidence has been adduced to justify my coming to the conclusion that in prosecuting the plaintiff the defendants acted maliciously. In Halsbury's Laws of England (3rd ed.), (Volume 25, page 356, paragraph 696) it is stated: "Malice is based on the assumption that defendant is actuated either by spite or ill-will against the plaintiff or by indirect or improper motives." In my opinion malice can be inferred from the circumstance that the defendants launched their prosecution without reasonable and probable cause.

There was considerable argument before me upon the question whether the entry of a nolle prosequi by the Attorney-General terminated the proceedings in plaintiff's favour. I have been referred to Ocansey v. Mensah Guinea (Full Ct. 1926-29, p.315), where Michelin, J. discussed the authorities in full and held in that case that a discharge of the plaintiff by a Police Magistrate at the close of the preliminary examination put an end to the particular prosecution before the court. There is no direct English authority on the point, but in the Supreme Court of New South Wales it has been held that a nolle prosequi by the Attorney-General is a sufficient termination for the purpose of malicious prosecution (Gilchrist v. Gardner ((1891) 12 N.S.W.L.R. (L.), 184). The point was discussed in Khoury v. Tabbara (14 W.A.C.A. 246) where the court held that the entry of a nolle prosequi by the Solicitor-General in the criminal proceedings put an end to the prosecution altogether. In view of the foregoing authorities I hold that the entry of a nolle prosequi by the Crown put an end in favour of the plaintiff to the criminal proceedings against him.

I find therefore, upon assessment of the facts of the case in relation to the proof of the ingredients required in an action for malicious prosecution, that the plaintiff has proved his case and must have judgment. I enter judgment for him accordingly against the defendants jointly and severally.

The question or damages is a difficult one. There is no direct proof or the special damage alleged in the summons. There is no doubt, however, that plaintiff incurred travelling expenses in travelling to and from the court for the preliminary hearing which ended in his committal for trial at the assizes. I am of opinion that he is entitled to some special damages. The claim for general damages is highly inflated, though plaintiff must certainly have experienced mental suffering and indignity. I assess the general damages at 600.

Decision

<P>Judgment for the plaintiff.</P>

Plaintiff / Appellant

Kwaw-Swanzy

Defendant / Respondent

Koranteng Addow

Referals

(1) Hicks  v. Faulkner (1881) 8 Q. B. D. 167.

(2) Ocansey v. Mensah Guinea Full Court 1926-1929, 315.

[p.18]

(3) Gilchrist v. Gardner (1891) 12 N.S.W.L.R. (L)184.

(4) Khoury v. Tabbara 14 W.A.C.A. 246.

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