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EHIMAN PAYIN AND AZELE
V.
ADIABA ALIUAH AND AGYILI
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
5TH DAY OF FEBRUARY, 1953
APPEAL NO. 73/52
2PLR/1953/93 (WACA)
OTHER CITATION(S)
2PLR/1953/93 (WACA)
(1953) XIV WACA PP. 267-268
LEX (1953) – XIV WACA 267-268
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN:
CHIEF EHIMAN PAYIN AND AZELE – Appellant
AND
ADIABA ALIUAH AND AGYILI – Respondents
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ORIGINATING COURT
Appeal by the defendant
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REPRESENTATION
C. F. Hayfron-Benjamin — for Appellant
F. Awoonor Williams — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW:- Malicious Prosecution — Instigating a Prosecution — Malice: meaning of –Relevant considerations
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CASE SUMMARY
The action under appeal arose out of a prosecution for stealing coconuts from a plantation, of which the respondents were acquitted; they then sued the appellant for malicious prosecution. Their predecessor in title had sued the appellant for trespass to the plantation and obtained judgment. In view of that the Judge who tried the claim for malicious prosecution was of opinion that the appellant-defendant could not honestly have believed in the respondents’ guilt and acted maliciously in causing them to be prosecuted; and the Judge gave the respondents-plaintiffs damages. The defendant appealed arguing that it was not he but the police who had preferred the charge of theft— he had merely given information — and that it had not been proved that he was actuated by improper and indirect motives.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
(1) Although it was true that an officer of police actually preferred the charge of theft against the respondents, the evidence showed that it was the appellant who had been responsible for putting the law in motion against them and had instigated the prosecution.
(2) The Judge was right in holding that the fact that the appellant had no honest belief in the guilt of the respondents constituted malice in fact: for it is honest belief which is the substantial thing that has always to be decided.
Cases cited:-
(1) Mitchell v. Jenkins, 5 B. & Ad. 588, 595.
(2) Meering v. Graham-White Aviation Co., 122 L.T. 44, 55, 56.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This was an appeal from a judgment of Ragnar Hyne, J., by which he awarded the respondents £36 6s. 0d. special and £100 general damages for malicious prosecution.
The facts are fully set out in the judgment of the learned trial Judge, it is, therefore, sufficient to say that the respondents’ case was that the appellant caused them to be prosecuted on a charge of stealing some coconuts from a plantation which the appellant alleged was his property when in fact the plantation was, to his knowledge, the property of the respondents.
It was admitted that the respondents were prosecuted on a charge of stealing coconuts, that they were convicted of that offence and that the conviction was quashed on appeal.
On behalf of the appellant it was submitted, firstly, that the learned trial Judge having found that it was an Inspector of Police who actually preferred the charges he was wrong in holding that the prosecution was commenced at the instance of the appellant, and, secondly, that no malice was proved, that malice must be malice in fact not merely the malice which is presumed in law from the circumstance that a wrongful act is intentionally done, and that it was not proved that the appellant was actuated by improper and indirect motives.
The first submission rests on the proposition that the appellant merely caused information to be given to the police on the strength of which they, in the exercise of their discretion, commenced the prosecution. 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”, and that such finding was based on evidence given by a witness called by the respondents, 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 respondents, that it was he who instigated the prosecution.
The respondents tendered in evidence the record of proceedings, exhibit “C”, which they alleged were proceedings brought by one Swanzy Menla, their predecessor in title to the land from which the coconuts were taken by them, against the appellant, claiming damages for trespass to the land. That case was brought in the year 1936, judgment was given against the appellant and there was no appeal.
When dealing with this aspect of the case the learned trial Judge had no hesitation in holding that, on a balance of probabilities, the land from which the respondents were accused of stealing coconuts was that in respect of which Swanzy Menla obtained judgment in the year 1936, that the respondents were therefore lawfully on the land, and that the appellant knew that the land in question was not his. In my opinion there was evidence upon which the trial Judge could reasonably come to this conclusion.
The trial Judge then considered the question whether the appellant acted maliciously. In this connection he said, “I am, as I have said, satisfied that the land was not the defendant’s. That it was not was certainly known to him. He was a party to the action in 1936, when the land was declared to belong to Swanzy Menla’s family. In view of this there could have been no honest belief in plaintiffs’ guilt”, and he went on to find as a fact that the appellant acted maliciously.
As Parke, J., said in Mitchell v. Jenkins (1),
“the term ‘malice’ in this sort of action is 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”,
and Atkin, L.J., in Meering v. Graham-White Aviation Co. (2),
“Honest belief seems to me to be the substantial thing that has always to be decided; and such belief must be not merely belief by the prosecutor in the guilt of the person, but it must be a belief that the prosecutor will be able to adduce such evidence before a jury or the Court as would justify the Court in convicting the accused”.
Applying these tests to the present case it appears to me that the learned trial Judge was right in holding that the fact that the appellant had no honest belief in the guilt of the respondents constituted malice in fact.
For the foregoing reasons I would dismiss this appeal with costs, fixed at £25 10s. 0d.
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COUSSEY. J. A.
I concur.
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KORSAH, J.
I concur.
Appeal dismissed.