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MALEK KHOURY
V.
KAMEL TABBARA
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
12TH DAY OF JANUARY, 1953
APPEAL NO. 16/52
2PLR/1954/62 (WACA)
OTHER CITATION(S)
2PLR/1954/62 (WACA)
(1953) XIV WACA PP. 246-249
LEX (1953) – XIV WACA 246-249
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KINGSLEY, J.
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BETWEEN:
MALEK KHOURY – Appellant
AND
KAMEL TABBARA – Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW:- Malicious prosecution – Criminal proceedings terminated by nolle prosequi – Whether can sustain a claim for damages for malicious prosecution
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CASE SUMMARY
The appellant (plaintiff below) sued the respondent (defendant below) claiming damages for malicious prosecution on the ground that the respondent wrongfully charged him with an offence for which he was arrested and committed for trial, the proceedings being terminated by the Crown entering a nolle prosequi. The respondent, relying on Goddard v. Smith, 6 Mod. 261, maintained that the nolle prosequi was not a termination of the proceedings in appellant’s favour and the action for damages did not lie. The trial Judge agreed and dismissed the action. Plaintiff appealed and relied on the contrary view in Gilchrist v. Gardner (Australia, 12 N.S.W. Rep., cases at law, 184) that the action did lie as, if a plaintiff could not sue for malicious prosecution after a nolle prosequi, he was deprived of his only chance of clearing his character.
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CASE SUMMARY
Held (allowing the appeal) that:
1. The general rule that the criminal proceedings must have terminated in favour of the plaintiff suing for malicious prosecution is subject to this qualification, namely that those proceedings were capable of such termination.
2. A nolle prosequi terminates criminal proceedings and justice requires that the accused person should be entitled to sue for malicious prosecution to clear his character.
Cases cited:-
(1) Goddard v. Smith, 6 Mod. 261.
(2) Castrique v. Behrens, 4 L.T.R. 52.
(3) Basebe v. Matthews, (1867), L.R., 2 C.P., 684.
(4) Bynoe v. Bank of England, (1902), 1 K.B. 470.
(5) Stetuard v. Gromett, 7 C.C. (N.S.) 191.
(6) Everett v. Ribbanda, (1952), 1 K.B. and (1952), 2 Q.B. 198, C.A.
(7) Gilchrist v. Gardner, 12 N.S.W. Rep. (cases at law) 184, of Australia.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
In this case, the appellant, who was the plaintiff in the Court below, claimed general and special damages against the defendant-respondent for malicious prosecution and averred in his statement of claim, firstly, that the defendant-respondent falsely and maliciously and without reasonable and probable cause preferred a charge before a Magistrate against the appellant of having obtained the sum of £3,500 by false pretences, secondly, that the appellant was arrested on the 4th August, 1951, and duly appeared before the Magistrate’s Court on the 6th August, 1951, and on several other days and that after the respondent and his witnesses bad given evidence the appellant was on the 27th September, 1951, committed for trial before the Supreme Court, and, thirdly, that on the 19th October, 1951, the Solicitor-General entered a nolle prosequi whereby the criminal proceedings against the appellant were brought to a close.
The respondent relying on the decision in the case of Goddard v. Smith (1), maintained that the entering of a nolle prosequi was not a termination of the criminal proceedings in favour of the appellant and that there was, therefore, no cause of action.
In Goddard v. Smith (1) it was held that a declaration for maliciously indicting the plaintiff for barratry without probable cause which stated that he was in due manner thereupon discharged, was not maintained by evidence that he was discharged by means of a nolle prosequi entered by the Attorney-General. The question was reserved for the opinion of the Court by Holt, C.J., who doubted whether the evidence maintained the declaration and strongly inclined that it did not. He went on to say that it was hard to allow a man who gets off by a nolle prosequi to maintain an action for malicious prosecution, that he who gets off on a nolle prosequi does not at all get off on the merits of the cause, and that, to maintain a conspiracy, it was necessary to lay and prove an acquittal. After discussion as to the effect of a nolle prosequi the report goes on to state that the Court seemed clear that the action did not lie, but gave no rule. This case arose in the year 1704 and would appear to be the only reported English case on the point.
The learned Chief Justice who tried this action felt himself bound by the decision in Goddard v. Smith (1) and he disZmissed the appellant’s claim with costs.
It is a recognised rule of law that in an action for malicious prosecution it is necessary for the plaintiff to prove that the proceedings, which he complains were brought against him by the defendant maliciously and without reasonable and probable cause, terminated in his favour.
This rule is, however, not without exception and this was recognised by Crompton, J., in his judgment in the case of Castrique v. Behrens (2), an action for conspiring with certain persons fraudulently and unlawfully to procure an attachment and condemnation of a ship by a proceeding in rem in a foreign Court, where he said:-
“… but, in such an action, it is essential to show that the proceeding alleged to be instituted maliciously and without probable cause has terminated in favour of the plaintiff, if from its nature it be capable of such termination. The reason seems to me that, if in the proceeding complained of the decision was against the plaintiff and was still un-reversed, it would not be consistent with the principles on which law is administered for another Court, not being a Court of Appeal, to hold that the decision was come to without reasonable and probable cause “.
The exception is to be found in the words “if from its nature it be capable of such termination”. That case was followed in Basebe v. Matthews (3) and it is referred to with approval by Collins, M.R., who delivered the judgment of the Court of Appeal in the case of Bynoe v. Bana of England (4).
An example of an exception to the general rule occurs in the case of Steward v. Gromell (5), which was an action for maliciously and without reasonable and probable cause going before a Magistrate and procuring the plaintiff to be held to bail to keep the peace, and it was held that it was not necessary, as in the ordinary case of an action for a malicious prosecution, to aver that the proceeding before the Magistrate was determined in favour of the plaintiff, such a proceeding being ex part, and the truth of the statement made by the applicant to the Magistrate not being controvertible.
This case, however, was decided before the Summary Jurisdiction Act, 1879, section 25 of which altered the law as regards the procedure before Justices for sureties of the peace and for good behaviour. The Summary Jurisdiction Acts now apply to such proceedings and the complainant and defendant and witnesses may be called and examined and cross-examined.
It was this alteration in the law which led Devlin, J., and subsequently the Court of Appeal in the case of Everett v. Ribbanda (6) to distinguish the decision in Steward v. Gromett (5) and to hold that the prosecution against the plaintiff having been successful, he having been ordered to enter into a recognisance and to find two sureties to keep the peace and to be of good behaviour for twelve months or in default to serve a month’s imprisonment, after he had had an opportunity of being heard, no action for malicious prosecution lay. During the course of his judgment Devlin, J., said that if the procedure in Courts of Summary Jurisdiction was still the same as it was at the date of the decision in Steward v. Gromett (5), that decision and the reasoning behind it would· be binding upon him, but that the change meant that the proceedings before Justices are no longer ex parte but that before any order is made both sides are to be heard or to have an opportunity of being heard.
In upholding the judgment of Devlin, J., Somervell, L.J., said:-
“… it seems to me clear, having regard to the change made by section 25 of the Act of 1879, that proceedings of this kind before Justices are capable of being terminated in favour of the plaintiff. He can appear and give evidence and dispute what is said by the complainant, and he may be believed and, if so, no order will be made. The question is not, ‘is it a prosecution?’ but, were the proceedings capable of being terminated in the plaintiff’s favour?”
Appellant’s counsel relied on an Australian case, Gilchrist v. Gardner (7), where a contrary view to that taken in Goddard v. Smith (1) was arrived at Gilchrist v. Gardner (7) was an action for malicious prosecution in which the declaration alleged that the plaintiff appeared and was tried upon a charge of uttering a forged receipt, upon which the Jury failed to agree; whereupon the Attorney-General declined to proceed further against the plaintiff and he was discharged. It was held upon a demurrer to the declaration, mostly, that this amounts to a statement that a n0lle prosequi had been entered, and, secondly, that the entry of the nolle prosequi was such a termination of the proceedings in the plaintiff’s favour as to entitle him to bring the action.
In that case Innes, J., said in his judgment:-
” … I have from the commencement of the case been of opinion that the plaintiff is entitled to our judgment, and I may go so far as to say that to hold otherwise would be a scandal upon the administration of justice. Were the entry of a , nolle prosequi to debar the person charged from bringing an action for malicious prosecution he would be deprived not only of his opportunity of obtaining redress for his grievances, but of his only chance of clearing his character and establishing his innocence in the eyes of the world. He could not take any steps to get put on his trial again, and unless he is permitted to bring his action in the Civil Court he must exist for the rest of his days with the taint of an unrefuted charge attaching to him”.
The entry of a nolle prosequi by the Solicitor in the criminal proceedings we are concerned with on this appeal, in my view, put an end to that prosecution altogether. If the complainant wished to proceed further with the matter he would have to commence de novo.
I prefer the reasoning in Gilchrist v. Gardner (7) to that in Goddard v. Smith (1) and I am of the opinion that in a case where criminal proceedings have been terminated by the Attorney-General or other law officer entering a , nolle prosequi justice requires that it be held to be an exception to the general rule that the plaintiff must prove, in an action for malicious prosecution, that the proceedings terminated in his favour, and that proof of the entry of a nolle prosequi in a criminal matter is such a termination of the proceedings in the plaintiff’s favour as to entitle him to bring an action for malicious prosecution. It seems to me that to hold otherwise would amount to a denial of justice. By so holding no injustice is done to the defendant in such a case because it is always open to him to prove reasonable and probable cause, and if he succeeds in so doing the plaintiff’s action will fail.
For the reasons I have given I would allow this appeal with costs to be taxed, set aside the judgment of the Court below and remit the action to the learned trial Judge for him to determine the other issues raised on the pleadings in conformity with this judgment, the parties being at liberty to call such evidence as they may be advised. The costs of the first trial to abide the result of the further hearing.
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COUSSEY, J. A.
I concur.
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KINGSLEY, J.
I concur.
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Appeal allowed; case remitted for trial.
(Footnote by the Editor to explain the words “to maintain a conspiracy” on p. 247, 1.13; in Goddard v. Smith (1) the declaration in the case was on conspiracy for a false and malicious indictment of barratry.)
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