Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 ONOGEN v. LEVENTIS & CO. LTD. | GhanaLegal - Resources for the legal brains

ONOGEN v. LEVENTIS & CO. LTD.


  • New
  • 1959-03-10
  • HIGH COURT
  • GLR 105 124
  • Print

ADUMUA BOSSMAN J.


Summary

False imprisonment?-Malicious prosecution?-Wrongful dismissal?-When knowledge of servant is knowledge of Company.

Headnotes

Onogen was a store-keeper of Leventis & Co. Ltd., employed under written agreement dated 1st July, 1951. From that date up to 1st December, 1954, when his employment was terminated, he was in charge of the Company's drinkables and provisions store at Market Circle in Takoradi township. After the termination of his employment Onogen sued the Company, claiming 2,500 damages, which was particularised as follows:-(i) 500 for false imprisonment by the Company from 18th-19th November, 1954;(ii) 500 for wrongful dismissal by the Company on 1st December, 1954;(iii) 1,500 for malicious prosecution by the Company during the period 22nd December, 1954 to 23rd February, 1955.Onogen's case included the following allegations: On the 18th November, 1954 the General Agent of the Company, one Hadjioannou, in a written statement to the police at Takoradi Police Station, as well as in oral statements made to two officers (Inspector Baidoo and Sergeant Botchway) had accused him, Onogen, of having stolen on the 11th November, 1954 seventy cases of Heineken beer, valued at 339 10s.0d. and property of the Company. In consequence of this accusation, Onogen was arrested by the two police officers, and was detained in a cell at the Takoradi Police Station for 26 hours before being released on bail. Subsequently he was put before a Court on the 22nd December, 1954, and was prosecuted on subsequent dates, but on the 23rd February, 1955 he was acquitted. His arrest and detention were at the instance of the Company, and being without any legal justification, were unlawful. It was for this false imprisonment that he claimed 500 damages.Onogen's subsequent prosecution (as he alleged) was also at the instance of the Company. Because it was malicious, and without reasonable or probable cause, he claimed 1,500 damages for malicious prosecution.Onogen finally alleged that the termination of his employment on the 1st December, 1954 by written notice bearing that date was contrary to the terms of his Agreement, and therefore constituted wrongful dismissal. For this he claimed 500 damages.The Company denied that there was any direct accusation, or preferment of a charge, against Onogen at the instance of their Agent. They averred that all that the Agent had done was to report at Takoradi Police Station, the loss or theft of 70 cases Heineken beer from their wholesale-storeroom in Takoradi, and to give information as to the circumstances. He did no more than request an investigation into the matter. In making the report to the police, the Agent had reasonable and probable cause. Neither Onogen's arrest and detention, nor his [p.106] subsequent prosecution, was at the instance of the Agent. As far as the termination of Onogen's employment was concerned, it was upon payment of one month's salary in lieu of notice, and was in accordance with the terms of the Agreement.Suit No. 26/55 (Cape Coast).

Judgement

(His lordship referred to the pleadings, and continued):-

The primary question for determination would appear to be whether either the plaintiff's arrest and detention, or his subsequent prosecution, was at the instance of the Agent of the Company. If the arrest and detention, and/or the subsequent prosecution, be found to have been at the instance of the Agent, the subsidiary question will arise whether there was any legal justification for the Agent's conduct in either case.

(His lordship stated the sequence of events leading to the plaintiff's arrest, prosecution and acquittal: and continued):-

It now falls to be determined, firstly, how the plaintiff came to be arrested, that is to say, who was in the contemplation of law responsible for his arrest.

(His lordship then set out the evidence led by the plaintiff, and continued):-

Before examining the Agent's version of the circumstances leading to the plaintiff's arrest, let us first consider the contentions of learned Counsel for the plaintiff on this part of his case. He expressed reliance on the statement of law appearing at p. 805 of Clerk Lindsell on Torts (10th ed.), as follows:?-

"If a charge is made to a Police Constable and he thereupon makes an arrest, the party making the charge, if liable at all, will be liable in an 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." [p.108]

Counsel further referred to the statement of the law at p. 276 (op. cit.), as follows:?-

"It is not necessary that he should in terms have made a request or demand, it is enough if he makes a charge on which it becomes the duty of the constable to act."

Counsel contended that, as the Police Officers said in their evidence, the Agent definitely accused or charged the plaintiff to them with theft of the cases of beer, whereupon Sergeant Botchway was obliged to arrest him. Therefore, in law, the arrest was at the instance of the Company, according to the statement of the law to which Counsel had made reference.

It is to be observed, however, that the somewhat broad statement of the law at p. 276 (op. cit.) is significantly enough narrowed down in its application in the decided cases. Thus, the case of Hopkins v. Crowe ((1836) 4 Ad E. 774, 111 E.R. p. 974) is referred to at the end of the statement of law above cited. In that case the decision (that the defendant was liable in trespass to the plaintiff's person) proceeded on the ground that the manner or particular circumstances in which the defendant charged the plaintiff, amounted in effect to a direction or request to the officer to arrest the plaintiff. The officer had told the defendant that only if he preferred a charge against the plaintiff would he (the officer) take plaintiff into custody. The defendant thereupon promptly said, 'I do'; whereupon the plaintiff's arrest was effected by the officer. The case was considered in the Court of Exchequer on a Motion to set aside the verdict for the plaintiff, and to order a non-suit. Patterson J. said as follows (p. 973):?-

"This case is very clear. It is proved that the defendant not only told the officer something which he professed to know, but took upon himself to direct the officer to apprehend the plaintiff. He made the officer his servant for that purpose, and he is therefore liable in trespass."

Coleridge J. said (p. 976):?-

"If he had been a mere Informer sued as having given a defective or over-charged information, he might have been protected . . . but he was a principal making an arrest by the hand of the police officer."

Denman C. J. said (p. 976):?-

"The words used by the defendant were in effect a direction to the officer to arrest."

In Chivers anor. v. Savage ((1855) 5 E. B. 697 at 70 119 E. R. 641 at 642), Lord Campbell said:- [p.109]

"The plaint, as appears by the particulars, was for a trespass by false imprisonment . . . and there was evidence to show that the defendant upon a suspicion of felony had not merely made a complaint and charge to the police, upon which they had themselves acted and taken the plaintiff into custody, in which case trespass for false imprisonment would not have been maintainable; but the defendant had expressly directed the police to take the plaintiff into custody, which was an imprisonment by the defendant for which trespass would lie."

Then in the later case of Austin v. Dowling ((1870) L.R. 5 C. P. 534 at pp. 538-9), Willes J. said as follows:?-

"It is clear that there was some evidence of false imprisonment. It is found in the case that, though the defendant gave no express direction for the plaintiff's detention, he was expressly told by the Inspector on duty that he (the Inspector) disclaimed all responsibility in respect of the charge and that he would have nothing to do with the detention of the plaintiff except on the responsibility of the defendant; and that the Inspector would not have kept the plaintiff in custody unless the Charge of Felony was distinctly made by the defendant. The signing of the Charge sheet with that knowledge, therefore, was the doing of an act which caused the plaintiff to be kept in custody."

By contrast, reference might be made to Gosden v. Elphick anor. ((1849) Exch. 445; 154 E.R. p. 1287). In that case the plaintiff and two others were employed in showing some horses round at a fair. The halter round the neck of one of the horses slipped, and the horse ran against and injured a child. A constable not present at the incident came along, and was taking one of the men into custody when defendant Elphick said, "That is not the man; that's the man," and pointed to plaintiff. The latter was taken into custody, and was prosecuted unsuccessfully. He now sued for false imprisonment.

Alderson B., trying the case at Assize, directed the jury that:?-

"the question with respect of Elphick was, whether he directed the Constable to take the plaintiff into custody, in which case he would be liable; but if his object was merely to offer himself as a witness and to give information to the Constable that the wrong man was being taken into custody, he was not liable. The jury found for defendant."

Upon the Court of Exchequer being moved for a Rule for a new trial on the ground of misdirection, the Rule was refused and the direction held correct. [p.110]

In the subsequent case of Grinham v. Willey ((1859) 4 H. N. 497; 157 E.R. 934) the defendant's watch had been stolen, and he had sent for a policeman. Before the police arrived, the plaintiff (a barmaid at the public-house where defendant waited for the policeman) was handed a packet by a unknown person, and was directed to deliver it to the defendant, which she did. The parcel happened to contain defendant's stolen watch. When the policeman arrived, he asked defendant who had given back his watch to him. Defendant pointed to plaintiff and said, "This is the person who gave the watch to me," whereupon the police took plaintiff into custody. The defendant followed to the Station, and signed the charge sheet. Bramwell B. at the trial directed the jury that charging a person with an offence was a different thing from giving such person into custody: that the defendant neither ordered nor authorised the constable to take the plaintiff into custody, and advised the jury to find accordingly. The Jury found that defendant did not give plaintiff into custody, but that the plaintiff was taken into custody by consent of defendant. The Judge ordered judgment to be entered for defendant but reserved leave to plaintiff to move to enter verdict and judgment for himself, and for the damages of 10 as assessed by the jury. On the matter coming before the Exchequer, the Judge's directions and decision were held correct, and the appeal was dismissed. Pollock C.B. said as follows:-

"'The circumstances of this case were that the defendant appealed to the authorities who are charged with the preservation of the peace. The arrest and detention were the acts of the police officer, and the defendant did nothing more than he was bound to do, viz., sign the Charge Sheet . . . We ought to take care that people are not put in peril for making complaint when a Crime has been committed . . . A person ought not to be held responsible in trespass, unless he directly and immediately causes the imprisonment."

In a subsequent case (Rowe v. London Pianoforte Co. Ltd. (1876) 34 L.T. (N.S.) 450 at 452) Bramwell B., referring to Grinham v. Willey said as follows:?-

"It has been held in the Court of Exchequer that even signing the Charge Sheet is not sufficient to establish trespass. There must be an actual giving into custody (Grinham v. Willey 4 H N 496)." Finally, the case of Sewell v. National Telephone Co. Ltd. ([1907] 1 K.B. 557) has put it completely beyond doubt that the mere preferring of a charge is not per se sufficient to support a claim of false imprisonment. In that case the plaintiff had been taken into custody, and the defendants agent attended at the police station. [p.111]

At the request of the police officer, the agent signed the Charge Sheet. It was held that that fact per se (i.e. the preferring of the charge) was not sufficient to support a claim in false imprisonment. Collins M.R. said as follows in the Court of Appeal:

"If a person desires to obtain a judicial decision from a proper tribunal, and for that purpose states the facts to a police officer, and the latter, acting on his own initiative, arrests the person implicated, no trespass is committed by the person who gives the information to the police officer."

Of the many statements of the precise state of the law (as exemplified in the decided cases) appearing in legal textbooks, one of the clearest, most concise and lucid is to be found in Salmond on Torts (10th Ed.) at p. 374:

"An action for false imprisonment will lie against any person who authorises or directs the unlawful arrest or detention of the plaintiff by a merely ministerial officer of the law . . . He makes that ministerial officer his agent and is responsible for any arrest or detention so procured or authorised, as if it were his act. It is necessary, however, even in such a case to prove actual direction or authorisation, such as is sufficient to make the ministerial officer the agent of the defendant. Mere information given to such an officer, on which he acts at his own discretion, is no ground of liability."

That is a correct statement of the law, and even if I were to accept the evidence of the plaintiff and his two police witnesses as absolutely correct and true, I would not be prepared to hold that a clear authorisation, direction or request by the Company's Agent to the police to arrest plaintiff has been established, so as to make the Agent and/or his Company answerable in false imprisonment.

(His lordship then considered the Agent's version of the facts, and continued):-

On the whole, therefore, I am satisfied that neither by his telephone message to the police, nor by anything he said when pointing out plaintiff to the police when the plaintiff came on the scene, nor by his written statement to the police on the 19th November, did the Company's Agent definitely and positively authorise, demand or request the arrest or taking into custody of the plaintiff. I am satisfied that he reported to the police the complaint of the keeper of his wholesale storeroom as to the circumstances of the loss of the 70 cases of beer. He informed them of the steps which he himself had taken when he received the complaint. He told them what his informants (the labourers) had said. He confided in them the suspicions which had formed in his own mind from the information he [p.112] had obtained. Over and above all, he requested the police to undertake investigation. But I do not find that the defendant-Company's Agent authorised, demanded or requested the arrest or taking into custody of the plaintiff in such manner as to make him or his principals legally answerable for such arrest.

It falls next to consider and determine how the plaintiff came to be prosecuted, and if the conduct of the Company's Agent in the matter was such as to make him and/or his Company legally answerable for the prosecution.

(His lordship examined the evidence further, and continued):-

The contentions of learned Counsel for the plaintiff on this part of his case were as follows:?-

"I submit it is clear that it was the Company which set the law in motion against the plaintiff. Right from the beginning the telephone message stated that stealing had been committed in one of the stores. Inspector Baidoo also stated,`He reported a case of stealing of beer against his Store-keeper. I then detailed Sergeant Botchway to take over the case.?' That was not cross-examined to or challenged. I submit that Botchway left the station with a confirmed conviction, resulting from the report made to Baidoo that plaintiff had stolen; the intermediate steps of taking statements, and so forth, were superfluous. It does not even matter whether or not the Company had laid a direct charge; it is sufficient if it be established that they gave information upon which the Police preferred the charge. See Payin anor. v. Aliuah anor. (14 W.A.C.A. 267). I submit that if the facts establish that Hadji made a report that stealing had been committed and that plaintiff was responsible for that stealing, my client's case is covered by authority. The police had very little discretion left in the matter. The prosecution was instigated and instituted by the Company. See Clerk Lindsell (10th ed.) p. 806: `If an actual charge is made, though in an indefinite form and a mere matter of suspicion and hearsay, and a prosecution is thereby instituted, the prosecutor is answerable for the ulterior consequences, and it is not open to him to say that they were due to the mistake or indiscretion of the tribunal which he has put in motion.?"

It seems to me, however, that learned Counsel overlooked the very vital difference between appealing to a merely ministerial officer (e.g. a constable) and appealing to a judicial officer (e.g. a Magistrate).This distinction was pointed out on an earlier page of the very text-book on which he relied. At p. 805 appears this very pertinent passage:?- [p.113]

"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. If a charge is made to a police constable, and he thereupon makes an arrest, the party making the charge (if liable at all) will be liable in an action of false imprisonment . . . But if he goes before a Magistrate, who thereupon issues his warrant, then his liability, if any, is for malicious prosecution." It should also be pointed out that the passage at p. 806, relied on by learned Counsel, is but part of a paragraph which deals with the giving of information to a Magistrate, and contrasts that with the laying of a definite charge before the Magistrate. The material words are as follows:?-

?"A person who simply makes a cold statement of facts to a Magistrate without formulating any charge, is not responsible for the consequences of any step which the Magistrate may thereupon in the exercise of his discretion think fit to take . . . But if an actual charge is made, a prosecution is thereby instituted."

The case of Davis v. Noake ((1817) 6 M. S. 29; 105 E. R. 1153) was then referred to. In that case the defendant was held liable for malicious prosecution, because he laid an Information before a Magistrate, in which he deposed that certain articles had been feloniously stolen and that he suspected and believed, and had good reason to suspect and believe, that they had been stolen by plaintiff. But in the case now before me, the complaint was to a ministerial officer of the law (a Constable), in contrast to a judicial officer (a Magistrate). The prosecution ensued after due and normal enquiries and investigations by the police. It turned out to be unsuccessful, but the law appears to be clear that in ordinary and normal circumstances (i.e. where a genuine complaint is honestly and bonafide laid) the accuser is not considered or deemed to be the prosecutor, or the person who has set the law in motion, so as to render him answerable for malicious prosecution.

In Danby v. Beardsley ((1880) 43 L.T. 603) the defendant had missed two pairs of horse clippers from his stables. He sent for a police constable, and said: "I have had 2 pairs of clippers stolen from me and they were last seen in the possession of Danby." Thereupon the constable, having made inquiry, arrested the plaintiff without communicating with the defendant. Plaintiff was taken before a Magistrate, and was committed for trial. It was held that there was no evidence that the defendant was actively instrumental in putting the criminal law in force, and therefore he was not the prosecutor, and was not liable in an action for malicious prosecution. The learned Judge at the trial (at Sessions) withdrew the case from the [p.114] jury and directed a verdict to be entered for the defendant, on the ground that there was no evidence that the defendant was the prosecutor. A rule having been obtained to set aside the non-suit, and to direct a new trial, the order was refused. Lopes L. J. said as follows:?-

"With regard to the other ground of action, namely, malicious prosecution, it was necessary for the plaintiff to prove that the defendant was the prosecutor, and that there was an absence of reasonable and probable cause . . . . The ground on which the case was taken from the jury is that there was no evidence to go to the jury that the defendant was the prosecutor. I do not find in the books any express authority as to what a prosecutor is. Is there any evidence to show that the defendant was actively instrumental in putting the law in force? . . . I cannot see upon the state of the facts that there is any evidence that the defendant was the prosecutor."

In this country, section 62 of the Criminal Procedure Code expressly provides that criminal proceedings may be instituted before any Magistrate's Court in either of the following ways:-

(a) by making a complaint, and applying for the issue of either a warrant or a summons; or

(b) by bringing a person arrested without a warrant before the Court upon a charge contained in a Charge Sheet, which must be signed by the Police Officer or Public Prosecutor in charge of the case.

It should not be difficult to establish by evidence that a defendant took one or other step, either (a) or (b), by himself or a duly authorised agent, so as to make him liable as having "instituted criminal proceedings." Evidence, for example, to the effect that a defendant gave a plaintiff in charge to a constable and expressly authorised, directed or requested his prosecution on a particular charge, should satisfy the requirements of (b). But I opine that there must be clear evidence of an express authority, demand, or request for a prosecution on the particular charge, to constitute authorisation to the constable, and thereby make him a mere agent, in order to render the defendant answerable.

Such for example was the position in Alhadi v. Allie (13 W.A.C.A. 323), where Robinson J said at p. 324:?-

"I think it is fair to say that appellant insisted on a prosecution, because the police would only proceed after he had signed the Charge Sheet. The appellant instituted the prosecution." [p.115]

There was in our case, however, only an appeal to the police to investigate the complaint, but no evidence of any express authority, demand or request for the arrest or prosecution of the plaintiff. In those circumstances I do not find the Agent to be the prosecutor, so as to make his Company liable in malicious prosecution.

Learned Counsel has expressed reliance on the case of Payin anor. v. Aliuah anor. (14 W.A.C.A. 267). But, as can be observed from a careful study of that case, the appellant's contention that he merely caused information to be given to the police, on the strength of which they in the exercise of their discretion commenced the prosecution, was rejected. Foster-Sutton P. appears to have conceded the general proposition that information to a police officer, upon which he prefers a charge, would not by itself be enough. He, however, explains sufficiently the ratio decidendi of the decision when he said as follows:?-

"While it is true that the learned trial-Judge found as a fact that it was an Inspector of Police who actually preferred the charges . . . there is a considerable volume of evidence upon which the learned trial-Judge was, in my view, justified in drawing the conclusion which he did, that it was the appellant who was responsible for putting the law in motion against the respondent, that it was he who instigated the prosecution."

In my view the facts of the present case are not similar to the facts in Payin anor. v. Aliuah anor. The latter case would seem to fall within the class of cases where an appeal to a police officer, in circumstances which clearly indicate that to the knowledge of the complainant the charge is unfounded, has been held to make the complainant liable. Such a case was that of Tewari v. Singh anor. ((1908) 24 T.L.R. 884), which was decided by the Privy Council, on appeal from an Indian Court, and which, as a decision of the Privy Council, is binding on the Supreme Court of Ghana. In that case, leave to appeal had been given by the Judicial Commissioners in India, because, as they said:

"It is difficult to over-estimate the importance of the question raised in this case, namely, whether a person may be sued for damages for malicious prosecution who makes a false report which results in a prosecution, or who instigates the police to send persons up for trial under .... the Code of Criminal Procedure, or who conducts the case against those persons when sent up for trial .... All these are circumstances which occur perhaps daily in every district in India, and having regard to the immense number of false charges made, we think it most desirable that there should be no doubt as to the law on the subject." [p.116]

Upon consideration of the case before the Privy Council, Sir Andrew Scoble, delivering the Judgment of their Lordships, said that it would be convenient to refer at once to the decision of the Madras High Court, which the learned Judicial Commissioners appeared to have followed with some reluctance. The latter judgment was in these terms:-

"The only person who can be sued in an action for malicious prosecution is the person who prosecutes. In this case, though the first defendant may have instituted criminal proceedings before the police, he certainly did not prosecute the plaintiff. He merely gave information to the police, and the police, after investigation, appear to have thought fit to prosecute the plaintiff. The first defendant is not responsible for their act, and no action lies against him for malicious prosecution."

Sir Andrew Scoble went on to say that the principle there laid down was sound enough if properly understood, and its application to the particular case was, no doubt, justified. But in the opinion of their Lordships, it was not of universal application. In India the police had special powers in regard to the investigation of criminal charges, and it depended very much on the result of their investigation whether or not further proceedings were taken against the person accused. If therefore a complainant did not go beyond giving what he believed to be correct information to the police, and the police without further assistance on his part (except giving such honest assistance as they might require) thought fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But if the charge was false to the knowledge of the complainant, if he misled the police by bringing suborned witnesses to support it, if he influenced the police to assist him in sending an innocent man for trial before the magistrate, it would be equally improper to allow him to escape liability because the prosecution had not technically been conducted by him. The question in all cases of this kind must be - Who was the prosecutor? And the answer must depend on the whole circumstances of the case. The mere setting of the law in motion was not the criterion; the conduct of the complainant, before and after the making of the charge, must also be taken into consideration. Nor was it enough to say the prosecution was instituted and conducted by the police. That again was a question of fact. Theoretically, all prosecutions were conducted in the name and on behalf of the Crown; but in practice that duty was often left in the hands of the persons immediately aggrieved by the offence, who pro hac vice, represented the Crown. In India, a private person might be allowed to conduct a prosecution .... When that [p.117] was permitted, it was obviously an element to be taken into consideration in judging who was the prosecutor, and what were his means of information and motives. The foundation of the action was malice, and malice might be shown at any time in the course of the inquiry. So spoke Sir Andrew Scoble in delivering the judgment of the Privy Council.

In the light of the principles enunciated in Tewari v. Singh, it would appear to be necessary in the present case to consider the question of "malice" and reasonable cause (or rather such evidence relating to them as is available in this case) first from the angle of false imprisonment, and then from that of malicious prosecution. Dealing with them, then, firstly from the angle of the claim in false imprisonment, the following dictum of Hawkins J. in Hicks v. Faulkner ((1881) 8 Q.B.D. 167 at p. 170) should be borne in mind:-

"In false imprisonment the onus lies upon the defendant to plead and prove affirmatively the existence of `reasonable cause?' as his justification." The Company in their Statement of Defence appear to have pleaded generally such 'existence of reasonable cause' by having averred in paragraph 4 as follows:- "The Company had sufficient circumstances of reasonable and probable cause to warrant the report made to the police." It falls therefore to consider and determine if, on the evidence adduced by them, that plea can be said to have been affirmatively made out. In approaching that task it is necessary to bear in mind also certain settled rules relevant to the matter.

'The first of these rules is that which was expressed by Tenterden C. J. in Beckwith v. Philby ors. ((1827) 6 B. C. at 638; 108 E.R.

585 at 586) as follows:?-

"There is this distinction between a private individual and a constable. In order to justify the former causing the imprisonment of a person, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed."

In the subsequent case of Walters v. W. H. Smith Son, Ltd. ([1914] 1 K.B. 595) Isaacs C. J. approved that proposition in the following words (p. 602):

"At common law . . . when a private person makes or causes the arrest . . . to justify his action he must prove, among other things, that a felony has actually been committed: see per Lord Tenterden C. J. in Beckwith v. Philby. I have come to the conclusion that it is necessary for a private person to prove that the same felony had been committed for which the plaintiff has been given into custody." [p.118]

The learned Chief Justice of England then proceeded to an erudite examination of earlier authorities, and he referred to one which appears to be very apt and appropriate to our particular case. He said, "In Hale's Pleas of the Crown (edn. of 1800) Vol. ii, Ch.x., p. 77, s. 78, clause iii., the law is thus stated:

The third case is, there is a felony committed, but whether committed by B. or not, non constat, and therefore we will suppose that in truth it were not committed by B. but by some person else, yet A. hath probable causes to suspect B. to be the felon, and accordingly doth arrest him; this arrest is lawful and justifiable, and the reason is because if a person should be punished by an action of trespass or false imprisonment for an arrest of a man for felony under these circumstances, malefactors would escape, to the common detriment of the people. But to make good such a justification of imprisonment (1) there must be in fact felony committed by some person, for were there no felony, there can be no ground of suspicion. Again, (2) the party (if a private person) that arrests must suspect B. to be the felon. (3) He must have reasonable causes of such suspicion, and these must be alleged and proved."

The second of the ?"settled rules?" to which I have referred may be distilled from the classic definition of the expression "reasonable and probable cause" which was given by Hawkins J. in the case of Hicks v. Faulkner (supra, at p. 171):?-

"I should define 'reasonable and probable cause' to be 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."

That definition was approved and adopted by Lord Atkin in the House of Lords in the case of Herniman v. Smith ([1938] A.C. 305), when he said (at p. 316): "I know of no better statement of the issue than the words of Hawkins J. in Hicks v. Faulkner."

Bearing in mind, then, those statements of the legal position, what are the facts of our particular case, and how far do they accord with those statements of the law? Firstly, had the felony, in respect of which the plaintiff was taken into custody by the police, in fact been committed or not? As to that, there was no question but that 70 cases of Heineken beer were missing from the stock in the wholesale storeroom in circumstances amounting to theft of them by somebody either the wholesale storekeeper himself, or some retail [p.119] storekeeper to whom he had supplied them carelessly without a covering waybill. The Agents written statement to the police, as well as his oral evidence, established the loss clearly enough. Learned Counsel for the plaintiff himself asked the Agent in cross-examination:?-

Q. ?"Who was held responsible for the shortage of the 70 cases of beer??"

A. ?"The storekeeper Argyrou.?"

Q. ?"Am I correct in assuming that you got into difficulties with the Company about this matter?-the loss of the 70 cases of beer??"

A. ?"No, I got into no difficulties whatsoever with the Company about this or any other matter.?"

The fact of the loss of the 70 cases of beer from the wholesale store room, therefore, has not been in dispute, and the position would appear to be that described by Sir Mathew Hale when he said, ?"There is a felony committed, but whether committed by B or not, non constat, and therefore we will suppose that in truth it were not committed by B.?"

What of the question of malice in relation to the claim in false imprisonment? It appears to be immaterial so far as that claim is concerned, for, as observed by Tindal C. J. in Willans v. Taylor ((1829) 6 Bing. 183 at p. 186; 130 E.R. 1250 at p. 1251-2), "A person actuated by the plainest malice, may nevertheless have justifiable reason for prosecution."

Next, what of the existence of reasonable and probable cause for suspecting the plaintiff and reporting him?

(His lordship examined the evidence on these matters, and continued:?-

In the result, therefore, I find that the Agent had no reason to doubt the information given to him, not only by the labourers at the wholesale, but also by driver Williams, and by the labourers in the plaintiff's store (including plaintiff's own boy Moses Amache).

Those reports afforded strong and cogent grounds, as well as adequate and reasonable cause, for suspecting that the plaintiff had stolen the 70 cases beer, and for reporting him.

Turning now to a consideration of the question of malice and reasonable and probable cause from the point of view of the claim in malicious prosecution, it appears necessary to remind ourselves of yet other relevant principles. These were referred to by Tindal C. J. in [p.120] the case of Willans v. Taylor ((1829) 6 Bing 183 at p. 186; 130 E.R. pp. 1251-2), as follows:

"In order to support such an action, there must be a concurrence of malice in the defendant, and want of probable cause. Malice alone is not sufficient, because a person actuated by the plainest malice may nevertheless have a justifiable reason for prosecuting. On the other hand, subtantiating the accusation is not essential to exonerate the accuser from liability to an action; for he may have good reason to make the charge and yet be compelled to abandon the prosecution by . . . . the difficulty of producing adequate legal proof. The law therefore only renders him responsible, where malice is combined with want of probable cause. What shall amount to such a combination of malice and want of probable cause is so much a matter of fact in each individual case as to render it impossible to lay down any general rule on the subject; but there ought to be enough to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused . . The question which has been discussed is - Who is to show the absence of probable cause? The plaintiff must take the first step, because it is not to be presumed that anyone has acted illegally. There must therefore be some evidence of want of probable cause before the defendant can be called on to justify his conduct."

These principles were also referred to by Hawkins J. in Hicks v. Faulkner ((1881) 8 Q.B.D. 167 at p. 170), as follows:?-

"To succeed in an action for malicious prosecution, the plaintiff must allege and establish two things - absence of reasonable and probable cause, and malice. The affirmative of these allegations is upon him. Failing to establish both of them., he fails altogether."

Then in the leading case of Abrath v. North Eastern Rly. ((1886) 11 App.Cas. 247) considered in the House of Lords, the same principles were stressed by Lord Fitzgerald, as follows:-

"I do not entertain any doubt that the issue upon the question of probable cause as well as upon the question of malice lies upon the plaintiff; in this sense, that the plaintiff is bound to offer evidence sufficient, if uncontradicted, to sustain both these issues on his behalf."

Bearing that in mind, that the burden is upon the plaintiff to establish malice, and the absence of reasonable and probable cause, it falls to examine the evidence, and the arguments, on which the plaintiff relied to discharge that burden. [p.121]

(His lordship examined the evidence accordingly, and continued):?-

All I am called upon to decide is whether the Agent knew, or had reason to know, that the information given to him (that 70 cases beer were delivered to the plaintiff in the late morning of 11th November) was groundless, and with that knowledge he lodged a complaint with the police, with the object of sending an innocent man to trial. The conclusion which I have come to, after long, careful and anxious consideration, is that the evidence adduced by the plaintiff towards establishing that fact fails entirely to establish it. In his arguments that there was no reasonable and probable cause for the prosecution, the learned Counsel made the following significant observations:?-

"The peculiar facts of this case must be examined. The principal parties Hadji, Argyrou, Driver Williams and all the labourers were agents of the Company, and the knowledge of any of them?-knowledge of facts which went to show that it was impossible for plaintiff to have stolen the beer?-must be imputed to the Company. If this case were divorced from the circumstances that all these persons were agents of this Company, I would say that on the papers before the police there would be very little room for saying there was no reasonable and probable cause. This case becomes peculiar, because the knowledge that would have negatived or annulled the state of mind of Hadji at the time he made the complaint, existed in the mind of Hadji himself, and other servants of the Company. It is curious to note that in the statement of Hadji the fact that he had given an order to Williams on 10th November to go on 11th for kerosene was suppressed."

Considering and examining the said submission, to the effect that the knowledge of any fact in the mind of any servant of the Company, must be attributed to the Company, I am satisfied that the submission is not well-founded. As I understand it, it is only a Managing or General Agent who, within the scope of his authority, can be the representative whose acts can be attributed to, and be held to bind, the Company. In Rowe v. London Pianoforte Coy. Ltd. ((1876) 34 L.T. (NS) 450) the Foreman of the defendant Company wrongly gave plaintiff into custody. It was held in an action of false imprisonment against the Company that they were not liable, even though the Manager had signed the charge sheet, and had given evidence in the prosecution of the plaintiff. (See also Allen v. London South Western Railway Coy. (L.R. 6 Q. B. 65)). In my view, therefore, the argument (that driver Williams' knowledge of facts which went to show that plaintiff could not have committed the offence must be imputed to the Company) is completely misconceived. As for the labourers, it is not suggested that any of them knew of this great [p.122] secret that emerged only on the 14th February, 1954, when driver Williams went back on his word.

As for the Agent himself, I have already dealt with his case. As already indicated, I find that his merely signing to approve an order (placed by Symeon on the 10th November) did not mean that the Agent knew who would execute the order, or that it would be executed on the morning of the next day. It is significant that there was no evidence as to the time of day at which he signed it, or the general circumstances in which he came to sign it. As already said, I am satisfied with his evidence that as far as he was concerned he had not sent, nor did he know that anybody else had sent, driver Williams to execute an order on the morning of 11th November, so as to make it impossible for Williams to be available to deliver 70 cases beer to plaintiff the same morning. The driver himself had assured the Agent that he did carry the disputed cases of beer to the plaintiff on the morning in question. It must therefore be conceded, as Counsel conditionally conceded it, that "there was very little room for saying there was no reasonable and probable cause" in this particular case.

"Malice" was defined in Bromage anor. v. Prosser ((1825) 4 B. C. 247) (see Vol. 107 E. R. 1051) by Bayley J. as meaning in common acceptation ill-will against a person, but in its legal sense as meaning a wrongful act done intentionally without just cause or excuse. In Mitchell v. Jenkins ((1833) 5 D. Ad. 588; 110 E.R. 908) Parker J. said that malice was not to be considered in the sense of spite or hatred against an individual, but of malus animus and as denoting that the party is actuated by improper and indirect motives."

In the view which I have taken of the evidence adduced by the plaintiff towards establishing that the Company's Agent had any other object beyond getting the loss to his Company of the 70 cases beer investigated by the Police, I am satisfied that no malice existed in respect of the Agent's intentions, motive and actual conduct. He acted within 'the strict limits defined by Sir Andrew Scoble, viz., ?"not going beyond giving what he believed to be correct information to the police" (Tewari v. Singh (supra)).

It is further contended that the Agent was responsible for the continuation of plaintiff's prosecution, so as to make him liable for malicious prosecution. The detailed submissions, so far as I was able to get them down, were as follows:-

"I submit further that apart from the wrongful initiation, the continuation of the proceedings must be laid at the door of the defendant Company. On 10th February, 1955, when driver Williams went back on his evidence, after Inspector Acheampong had asked for an adjournment, Mr. Hadji interviewed Asst. Supt. [p.123] Mckenzie. I submit the irresistible inference is that he pressed Mr. Mckenzie to go on with the case. The defendant Company by their Agent had instituted the proceedings, and when (in Court) driver Williams changed his story, the Agent could not have been taken by surprise, because he himself had been cross-examined about the order with the Shell Company. Therefore the Agent's mind should have adverted to the fact that he had sent Williams. He should have requested the prosecution to stop, which he did not do. We submit that its continuance was with his concurrence.(Refers to Clerk Lindsell, (10th ed.) p. 809, ?'malicious prosecution may consist in wrongful continuance of proceedings already set on foot by other persons).?' I submit generally that the Company wrongfully initiated the prosecution, and wrongfully continued it, when there were circumstances from which they ought to have decided to stop it.?"

I am unable to find any force in those arguments. In the first place, it is not positively established that the Agent interviewed Asst. Supt. Mckenzie between the adjournment of the case on the 10th February, 1955, and the resumption on 14th February, 1955. Mckenzie's evidence, when the question was put to him whether between 10th and 14th February the Agent saw him, was as follows:- "It is likely that he did; but the incident happened about 2 years ago, and I cannot now be definite." He was not further cross-examined, nor was the suggestion ever made to him that the Agent urged or pressed him to continue with the prosecution against the plaintiff. In those circumstances it seems futile to ask me to draw any inference at all, much less an "irresistible inference,?" that the Agent pressed Mckenzie to go on with the prosecution.

As to the contention that the Agent should have asked that the prosecution should have stopped at that stage, accepting (as I do) his evidence as to his part in the matter, I am satisfied that he had no ground for thinking the prosecution should stop at that stage. There was not present in his mind any fact which could have led him at that stage to think that the plaintiff was innocent and was being prosecuted wrongly, and therefore there is no reason to consider whether or not he deliberately or wilfully suppressed such a fact ex animo malo.

Finally, I am satisfied that the statement of the law cited from Clerk Lindsell can have no application to the facts of this case. The passage cited appears to refer to a situation where one person commenced or initiated the criminal proceedings (e.g. applied for the issue of the Summons) and the defendant to the proceedings for malicious prosecution had subsequently taken over and adopted [p.124] what had been done, and had conducted the prosecution. Such was the case in Weston v. Beeman anor. ((1857) 27 L.J. - Exch. 57). In that case the plaintiff had assigned his chattels under a Bill of Sale. The Assignees' Agent, who was put in possession of the chattels on their behalf, without their authority issued a summons against the plaintiff for stealing some of the chattels. The assignees attended, and took over and continued the prosecution, which ended in the plaintiff's favour. In the case before me, however, there is no question (in my view) of the Company's Agent being prosecutor at any stage of the prosecution. As already indicated, I am satisfied that the prosecution was commenced, and carried out from the beginning to the end, by the police on their own responsibility.

There remains the claim in damages for wrongful dismissal. As to that, Clause 14 of the Agreement expressly provided that it could be terminated "by either party giving the other one calendar month's notice of his intention so to do." It is admitted that the Agent paid to the plaintiff on 1st December, 1954, a month's salary in lieu of notice, and learned Counsel has conceded that under the circumstances a month's salary was the quantum of damage to which plaintiff was entitled. It would appear that the claim for 500 under this head was misconceived. Counsel has asked me to take the plaintiff's dismissal as further evidence of malice, but I am unable to see how the exercise of a right, reserved under the Agreement, can be construed by me as indicating malice in the Agent.

In the result, I am unable to uphold any of the three claims in false imprisonment, malicious prosecution and wrongful dismissal.

Decision

<P>I dismiss the action, in favour of the defendant Company.&nbsp; I make no order for costs in their favour, there being no appearance by any person on their behalf to-day to cl

Plaintiff / Appellant

Mercer

Defendant / Respondent

Abbensetts

Referals

(1) Hopkins v. Crowe ((1836) 4 Ad. & E. 774; 111 E.R. 974);

(2) Chivers & anor. v. Savage ((1855) 5 E. & B. 697; 119 E.R. 641);

(3) Austin v. Dowling ((1870) L.R. 5 C.P. 534);

(4) Gosden v. Elphick & anor. ((1849) Exch. 445; 154 E.R 1287);

(5) Grinham v. Willey ((1859) 4 H. & N. 497; 157 E.R. 934);

(6) Rowe v. London Pianoforte Co. Ltd. ((1876) 34 L.T. (N.S.) 450);

(7) Sewell v. National Telephone Co. Ltd. (1907) 1 K.B. 557);

(8) Payin & anor. v. Aliuah & anor. (14 W.A.C.A. 267);

(9) Davis v. Noake ((1817) 6 M. & S. 29; 105 E.R. 1153);

(10) Danby v. Beardsley ((1880) 43  L.T. 603);

(11) Alhadi v. Allie (13 W.A.C.A. 323);

(12) Tewari v. Singh and anor. ((1908) 24 T.L.R. 884); [p.107]

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

(14) Beckwith v. Philby & ors. ((1827) 6 B. & C. 638; 108 E.R. 585);

(15) Walters  v. W. H. Smith and Son, Ltd. (1914] 1 K.B, 595);

(16) Herniman v. Smith ([1938] A.C. 305);

(17) Willans v. Taylor ((1829) 6 Bing. 183; 130 E.R. 1250);

(18) Abrath v. North Eastern Rwy. Co. ((1886) 11 A.C. 247);

(19) Allen v. London & South Western Rwy. Co. (L.R. 6 Q.B. 65);

(20) Bromage and anor. v. Prosser ((1825) 4 B. & C. 247; 107 E.R. 1051);

(21) Mitchell v. Jenkins ((1833) 5 B. & Ad. 588; 110 E.R. 908);

(22) Weston v. Beeman and anor. ((1857) 27 L.J. Exch. 57);

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