SOADWAH ALIAS SONDURA AND OTHERS vs. OBENG AND OTHERS [1966] GLR 338
[SUPREME COURT]
DATE: 2 MAY 1966.
CORAM:
MILLS-ODOI, AKAINYAH AND SIRIBOE JJ.S.C.
JUDGMENT OF MILLS-ODOI J.S.C.
I agree with the reasons in the judgment which my brother Akainyah is about to read for our allowing this appeal. It is not necessary to recapitulate the facts in this case; they are clearly and exhaustively stated in the judgment of my brother. Nor is it necessary for me to say more as to the conclusions to be drawn from the facts.
The case is relatively simple. It is not in dispute that the appellant transmitted to the Assistant Commissioner of Police, Ashanti, a letter dated 13 May 1960 (exhibit B) in which he complained that his house had been broken into and that some of his personal effects had been stolen by the respondents. The letter was accompanied by an affidavit sworn to by the appellant; it was marked exhibit E in the court below. It is equally not in dispute that the respondents were prosecuted before the district court at Goaso upon the charge of stealing from the dwelling-house of the appellant and were acquitted and discharged. The real bone of controversy is that the respondents say that the appellant and two others maliciously and without reasonable and probable cause preferred an unfounded charge against them and initiated the prosecution which terminated in their favour. On the other hand the appellant says all that he did was that he merely gave information to the police who exercised their discretion and came to the conclusion that there was a proper case to be laid before the criminal court.
There arises therefore the legal question whether the prosecution was instituted by the appellant. Fortunately, in finding an answer to this question, I have cases direct on the point to guide me and I need not search through the labyrinth of judicial decisions on malicious prosecution. As was said by Korsah C.J. in Aubin v. Ehunaku1:
“In order that an action may lie for malicious prosecution the following conditions must be fulfilled:
(1) The prosecution must have been instituted by the defendant;
(2) He must have acted without reasonable and probable cause;
(3) He must have acted maliciously;
(4) The proceedings must have been unsuccessful—that is to say, they must have terminated in favour of the plaintiff. It will be observed that, from the nature of these conditions, a plaintiff will fail unless it can be proved that all those conditions are fulfilled. Failure to prove one of them will be fatal to a plaintiff’s case.”
This subject was discussed with much fullness of learning in Onogen v. Leventis & Co., Ltd.2 and Yeboah v. Boateng VII.3 In the latter case, Crabbe J.S.C. in reading the judgment of the court, stated what are the essential requirements of a successful action for malicious prosecution in the following words4:
“The first duty of a plaintiff in an action for malicious prosecution is to prove that the defendant instituted criminal proceedings against him or was actively instrumental in putting the law in force against him in proceedings which terminated in his favour. But proof of this fact alone will not avail him unless he proves further that the defendant acted without reasonable and probable cause and was guilty of malice. Lastly, the plaintiff must prove that he suffered damage as a result of the prosecution.”
It is commonplace that in order to succeed in an action for malicious prosecution the plaintiff must allege and establish all these essential ingredients. His primary duty is to prove to the satisfaction of the judge that the defendant was actively instrumental in putting the law in force; in other words, the defendant must be shown to have initiated the prosecution. If the prosecution be found to have been at the instance of the defendant, the subsidiary question would arise whether there was any legal justification for his conduct.
In the instant case, the learned judge found as a fact that the appellant “was actively instrumental in putting the law in force and that he instigated the prosecutions.” He then proceeded to award damages against him in favour of the respondent. What then were the reasons which led him to think that the appellant was actively engaged in the prosecution of the respondents? The answer is to be found from an examination of the following passage of the judgment5:
“Was this prosecution instituted by the defendants? The plaintiffs’ contention is in the affirmative, but to find out whether this contention is justified, analysis of the evidence of the first plaintiff and his witness, police sergeant Appiah P.W. 2, as it affects each defendant, is essential. As against the first defendant, the plaintiffs relied on the letter of complaint exhibit B and the accompanying affidavit exhibit E to show that their contents are not mere information to the police, but that they went further and alleged a specific offence of larceny against the plaintiffs; that the first defendant in the letter of complaint insisted on the correctness of the allegations. The plaintiffs went further by the evidence of detective Sergeant Appiah to show that the first defendant visited the police station very often and all along insisted on the police prosecuting and taking the case to court and that, even before the Assistant Superintendent of Police, Sunyani, the first defendant insisted that the case be taken to court. The first defendant, however, denied this and said that he visited the police station only on the invitation of the police and that the police exercised their own discretion in sending the case to court. Lopes, J. said in Danby v. Beardsley ((1880) 43 L.T. 603 at p. 604): ‘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?’ Foster-Sutton P. in Chief Ehiman Payin and Anor. v. Adiaba Aliuah and Anor. (1953) 14 W.A.C.A. 267 at p. 268) seems to have followed this line when he said: ‘. . . 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.’ It has been held in many decided cases that information to a police officer, upon which he prefers a charge would not by itself be enough. I therefore find that from the decided cases quoted supra, the addition to mere information to the police should be that the defendant was actively instrumental and instigated the prosecution. Even though the first defendant denied the evidence of Sergeant Appiah that he insisted that the case be taken to court, I am satisfied that the evidence of Sergeant Appiah shows clearly that the first defendant was actively instrumental in putting the law in force and that he instigated the prosecution.”
It would seem that the learned judge relied on the appellant’s letter of complaint and the accompanying affidavit and on the evidence of Sergeant Appiah that the appellant insisted that the case be taken to court in arriving at the conclusion that the appellant was actively instrumental in setting the law in motion. But, as can be observed from a careful study of the case, that finding is not supported by the evidence. The appellant made a candid statement of facts in his letter, exhibit B, accompanied by an affidavit, exhibit E, and requested the police to cause a thorough investigation to be made and take any step which they would deem necessary. It is in this vein that the appellant concluded his letter in the following words, “That these facts are correct and need immediate investigation by the Ghana Police.” Also paragraph (3) of the affidavit, exhibit E, contains the following allegation, “That these facts may induce or warrant police investigation.”
Indeed, “investigations started on 14 June 1960 [i.e. one month subsequent to the date of appellant’s letter of complaint] and completed on 20 November 1960 when the accused persons [respondents] were charged.” In the course of the inquiries, which lasted for over five months, Sergeant Appiah took statements from a number of witnesses whom neither he nor anyone else had reason to suppose were unreliable. On the conclusion of the investigation, he submitted the docket to his superior officer, the assistant commissioner of police, with a report that the case should be dropped. The superior officer thought differently and, in the presence of the appellant and the two defendants, he ordered that the respondents be put before court on the charge of stealing from the appellant’s dwelling-house. It is therefore inconceivable that the respondents were prosecuted because the appellant “insisted that the case be taken to court.” The evidence of Sergeant Appiah, under cross-examination by the appellant’s counsel, clearly shows that the prosecution was entirely at the discretion of the police. His evidence, relevant to this issue, reads as follows: “I investigated the complaint. On the strength of the facts I gathered, I presented my docket to the Assistant Superintendent of Police, Sunyani. It was entirely within his discretion to order prosecution.”
In the light of the foregoing facts, I am of opinion that the learned judge came to a wrong conclusion that the appellant was “actively instrumental in putting the law in force and that he instigated the prosecution.”
In this case, all that the appellant is alleged to have done is that he made a genuine complaint to the police and prosecution ensued after normal inquiries had been made by Sergeant Appiah. It terminated in favour of the respondents; but the law appears to be clear that where a genuine complaint is honestly and bona fide laid, the accuser is not considered or deemed to be the prosecutor or the person who has set the law in force so as to render him answerable for malicious prosecution: see Danby v. Beardsley.6
As stated earlier in this judgment, the respondents are required by law to prove all the essential ingredients to enable them to succeed in their claim for malicious prosecution; failure to prove one of these ingredients is fatal to their claim.
On a consideration of the respondents’ case, I am of opinion that one of the essential requirements, namely, that the appellant initiated the prosecution, was not proved. I do not therefore consider it necessary to proceed to an examination of the evidence to find out whether the other essential elements necessary to ground a claim for malicious prosecution have been established by the respondents.
It is for the reasons which I have given, which do no more than affirm those given by my brother Akainyah, that there was no evidence to support the claim of the respondents for malicious prosecution, that the appeal was allowed.
JUDGMENT OF AKAINYAH J.S.C.
On 23 March 1966 we allowed this appeal, I now proceed to give my reasons.
This is an appeal from a judgment of Bruce-Lyle J. (as he then was) sitting at the High Court, Sunyani, dated 18 May 1962 in favour of the plaintiffs (hereinafter referred to as the respondents) against the first defendant (hereinafter referred to as the appellant).
By their writ, the respondents claimed against the appellant and two others as follows:
“(i) The first plaintiff claims against the first, second and third defendants jointly and severally £G3,000 damages for malicious prosecution.
(ii) The second plaintiff claims against the first, second and third defendants jointly and severally £G3,000 damages for malicious prosecution.
(iii) Third plaintiff claims against the first, second and third defendants jointly and severally £G3,000 damages for malicious prosecution.”
In support of their claim the first respondent testified that he was a farmer and that the police arrested him and the two others and they were all put before the District Court, Goaso; that after some adjournments the case was finally heard and all of them were found not guilty and acquitted. He tendered in evidence a certified true copy of the criminal proceedings before the said district court. It was accepted and marked as exhibit A. The first respondent then set out expenses said to have been made by him in connection with the said criminal case. He said that when they were arrested some of the people of Tweapease, where he had lived for thirteen years, felt sorry for them but others were delighted at their misfortune. Although no questions were asked about his occupation, the first respondent said in re-examination that he was the secretary of the Convention Peoples’ Party and also the cashier of the farmers co-operative in Tweapease. The other two, he said, were staunch Convention Peoples’ Party members. One Kwasi Acheampong, who gave evidence for the respondents, testified that the respondents were arrested and charged with having broken into and stolen from the room of the appellant certain properties belonging to the appellant on an election day. But as a matter of fact, the appellant’s properties were brought into his (witness’s) room by the appellant’s wife. Later, she collected the articles back. This witness admitted that although the first respondent was the secretary of the Convention Peoples’ Party at Tweapease there was no branch of the farmers co-operatives there. Acheampong admitted also that he heard that on the date of the election (i.e. the plebiscite) houses in Tweapease were looted. He did not examine the articles brought by the appellant’s wife, therefore he could not say whether or not, they were the woman’s own property.
Detective Police Sergeant John Kwasi Appiah also testified that the appellant’s letter of complaint, exhibit E, was sent to him by the Chief Superintendent of Police, Sunyani, for investigation. Consequently, he obtained statements from certain persons during the course of his investigations and on the strength of facts gathered, he submitted the docket to the Assistant Superintendent of Police, Sunyani, for instructions. When the facts were examined by the Assistant Commissioner of Police, Sunyani, he gave instructions that the respondents should be charged and put before the court and rejected a suggestion by Sergeant Appiah that the case should be dropped.
The text of the appellant’s letter of complaint (exhibit E) is as follows:
“I am a native of Sewua Abuaso, a farmer now residing at Tweapease via Kassem. I remember on or about 27 last month, in the morning, I decided to go to my village and to cast my vote. At the Kumasi lorry park, a friend informed me that I was being wanted by the Convention Peoples’ Party members at Tweapease. The friend advised me to stop going there, so I did not go, as advised. The next day I was informed by one Akumiah that my wife and children had been threatened by the following persons: Kwaku Beng and Joe Awuah who led the Convention Peoples’ Party thugs and pointed out my house, saying, this house belongs to a United Party member and that they rushed into the house and forced the door to my room open and looted. Upon this information, I went to the village and found that the following properties belonging to me had been filtched away by the Convention Peoples’ Party thugs, to wit, £G100 currency notes, four gold finger rings valuing about £G11 15s., six headkerchiefs valuing about £G2 2s., six female cover cloths valuing about £G1 5 4s. House blankets valuing about £G11 10s., two male kente cloths valuing about £G12, 40, eggs valuing about thirteen shillings, six pairs earrings valuing about £G6, my wife’s enamel pans destroyed, valuing about £G1, and one empty drum used for collecting water also destroyed. These persons, namely, Ayaa-Krachi and Asasi, ordered these two men, Kweku Beng and Joe Awuah, to lead the aforegoing Convention Peoples’ Party thugs into my house. That these facts are correct and need immediate investigation by the Ghana Police; such facts are confirmed and supported by my affidavit herewith attached.”
On 5 December 1960, the respondents were found not guilty and acquitted by the District Court, Goaso.
The following grounds of appeal were argued by counsel for the appellant:
“(1) That the learned trial judge erred in law in holding that the plaintiffs had established all the ingredients necessary to found liability in a case of malicious prosecution. Of the four essential ingredients which a plaintiff must satisfy in order to prove his case, namely,
(i) The prosecution must have been instituted by the defendants;
(ii) He must have acted without reasonable and probable cause;
(iii) He must have acted maliciously;
(iv)The proceedings must have terminated in favour of the plaintiffs. The plaintiffs only succeeded in proving the fourth ingredient. In the circumstances their inability to prove the others was fatal to their case. (See Aubin v. Ehunaku [1960] G.L.R. 167 at p. 168, C.A.; Onogen v. A. G. Leventis Co., Ltd. [1959] G.L.R. at p. 105.) (2) The judgment of the trial court is unreasonable and cannot be supported having regard to the weight of evidence.”
Mr. Hayfron-Benjamin submitted that out of the four ingredients only one was proved and that is that the prosecution terminated in favour of the respondents and that that by itself, was not sufficient to ground a claim for malicious prosecution. Counsel submitted further that in exhibits B and E the appellant merely gave information to the police and that after due investigations, the police decided on their own to institute criminal proceedings. He cited Onogen v. Leventis & Co., Ltd.7 and contended that neither exhibit B nor exhibit E was evidence of express authority from the appellant to the police to prosecute the respondents. He relied on the case of Glinski v. Mclver.8
The respondents were absent and there was no appearance by counsel on their behalf. If the respondents were present they would have been called upon to support the judgment.
I agree with learned counsel for the appellant that the onus was on the respondents to establish the following ingredients namely:
(a) That the prosecution was instituted by the appellant;
(b) That he acted without reasonable and probable cause;
(c) That he acted maliciously;
(d) That the proceedings were unsuccessful—that is to say, terminated in favour of the respondents.
In Aubin v. Ehunaku9 it was held that “a plaintiff will fail unless it can be proved that all these conditions are fulfilled.” In other words, failure to prove one of them will be fatal to the plaintiff’s case. The person liable is the prosecutor to whose instigation the proceedings are due. Instigating prosecution must be distinguished, however, from the act of merely giving information on the strength of which a prosecution is commenced by someone else in the exercise of his discretion. As regards the first condition, the respondents’ own witness, Sergeant Appiah admitted that it was entirely within the discretion of Assistant Commissioner of Police, Sunyani to order prosecution. On the face of exhibit A (i.e. the copy of the criminal proceedings) the charge sheet was headed Commissioner of Police v. Kwaku Obeng, Kwabena Asaase and James Ayai Okine and must have been signed by a prosecuting police officer as is always the case although the signature does not appear in the record of proceedings.
Institution of criminal proceedings in this country is regulated by statute. If the proceedings are instituted by the police or any other public officer the procedure, as laid down by section 60 (1) of the Criminal Procedure Code, 1960,10 is as follows:
“(a) by making a complaint and applying for the issue of either a warrant or a summons in the manner hereinafter mentioned; or
(b) by bringing a person arrested without a warrant before the Court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him, and the time when and the place where the offence is alleged to have been committed. The charge sheet shall be signed by the police officer or public prosecutor in charge of the case.”
Section 61 of the Act provides for the institution of criminal proceedings by private persons as follows:
“(1) Any person who believes from a reasonable and probable cause that an offence has been committed by any person may make a complaint thereof to a District Magistrate who has jurisdiction to try or enquire into the alleged offence, or within the local limits of whose jurisdiction the person accused is alleged to reside or be.
(2) Every complaint shall be made orally or in writing, but if made orally shall be reduced into writing by the Magistrate and in either case shall be signed by the complainant and the Magistrate.
(3) Upon receiving any such complaint the Magistrate may in his discretion refuse to issue process, recording his reasons for such refusal, or may issue either a summons or warrant as he thinks fit, to compel the attendance of the accused person before the District Court which such Magistrate is empowered to hold, or if the offence appears to be one which he is not empowered to try or enquire into, before some other competent Court having jurisdiction in the same area.
(4) A warrant shall not be issued in the first instance unless the complaint has been made upon oath either by the complainant himself or by a material witness or witnesses.”
According to the record of proceedings there can be no doubt that the institution of the criminal proceedings against the respondents at the district court was done by the police in accordance with section 60 (1) (b) quoted above and was a public prosecution, therefore, the appellant cannot be said to have instituted the said proceedings. What the appellant did was that he merely gave information on the strength of which a prosecution was commenced by the Assistant Commissioner of Police, Sunyani, in the exercise of his discretion. Having failed to fulfil the first condition, namely, that the prosecution was or must have been instituted by the appellant, the case for the respondents must fail.
I would accordingly allow the appeal.
JUDGMENT OF SIRIBOE J.S.C.
I also agree with the reasons given for allowing the appeal just read by the learned President and my brother Akainyah respectively, and wish to add the following:
From the record of proceedings, there is not the slightest doubt that the written complaint which the appellant, Kwasi Soadwah (at times wrongly referred to in the record as Sondura) made to the police, concerning the theft of his personal effects during his temporary absence, was based upon the information which the second and third defendants, who claimed to be present, gave him.
Briefly, it was as follows: On 27 April 1960, the respondents accompanied by some Convention Peoples’ Party elements, numbering about 40, went to the house of the appellant at Tweapease and made inquiries about him as to where he was. When the second defendant, a sixteen-year-old son of the appellant, informed them that the father had travelled to his hometown called Sawuah, near Kumasi, about four days previously, the respondents disbelieved it and said that he was hiding in his room. The appellant’s door had then been secured with a padlock. The first respondent, insisting that the appellant was hiding there, took a pounding stick with which he forced the door open. In the course of this, one of their followers slapped the second defendant who then fled to the bush from where he went and reported what had happened to the father at Sawuah.
According to the third defendant (uncle of the appellant), after the door had been forced open in the manner described, the first respondent entered the room and assisted by the second respondent, brought out a trunk which they passed on to some of their followers and all went away. Later the same day, between 8 and 9 p.m. the respondents returned to the house and each of them caught a fowl belonging to the appellant and took the same away.
On the appellant’s return to the village, some days subsequent to the incidents, the third defendant reported the occurrences to him, and finding that his trunk containing the articles in question, was indeed missing, he submitted the written complaint to the police for necessary investigations.
The two informants, the second and third defendants, not only made statements to the police substantiating the report made by the appellant, but also gave evidence to that effect, both at the trial of the respondents before the district court and also before the High Court, in the present proceedings in which they were sued jointly with the appellant.
In his judgment dismissing the respondents’ claims for damages against the two defendants, the learned judge, among other things, had this to say11:
“As against the second and third defendants I find that they told the police what they saw and whether they lied or not, they cannot be deemed to have instituted the prosecution and once they did not institute the prosecution, presence or absence of reasonable or probable cause for their statements to the police cannot make them liable for malicious prosecution.”
Dealing with the question of absence or want of reasonable and probable cause being one of the four essentials upon which the success of the respondents’ claims depended, the learned judge said that the respondents relied on the evidence of the first prosecution witness, then local chairman of the now proscribed Convention Peoples’ Party. His evidence that the appellant’s wife took some articles to him was found by the learned judge to be of little value to him, because under cross-examination, the first prosecution witness made it clear that he did not examine the things to see whether they belonged to the appellant nor did he say that when the woman brought the things she told him they were for the husband.
Notwithstanding this fair observation made by the learned judge, he, surprisingly enough, proceeded to hold that the appellant did not have reasonable and probable cause for making his written complaint because, said the learned judge, he was satisfied that the appellant never went to his village (Tweapease) to investigate anything before writing that letter of complaint. Secondly, the second prosecution witness, the detective sergeant (who apparently did not visit the appellant’s house until about two months after the incident), said that he did not find any signs of force having been used on the appellant’s door.
With respect, that finding was clearly wrong on the facts and in point of law. The finding that the appellant did not go to the village to investigate anything before sending his letter of complaint is quite clearly inconsistent with the following evidence appearing on record:
“By appellant: I believed what my son told me. After my son had given me the information and before sending the letter of complaint, I went to Tweapease. I was later called to Goaso Police Station and a policeman, the second prosecution witness, was deputed to go with me to Goaso to see whether my properties were in fact missing. The second prosecution witness investigated and searched my house and found that my properties were not with me. The second prosecution witness later searched the room of my wife and he found in a pan or basin the effects of my wife and he said he was going to keep them at the police station until after his investigations.” “By the second prosecution witness: During my investigation I took a statement from the Convention Peoples’ Party Chairman in the village, the first prosecution witness. Soadwah got to know that the first prosecution witness had given a statement that Soadwah’s wife had taken the properties but Soadwah said that the articles taken by his wife were not those he alleged to have been stolen.”
Undue weight, I regret to say was attached to the second prosecution witness’s evidence concerning the condition of the door, if one considers the seemingly uninterested attitude he adopted in carrying out the investigations of the case. This was made manifest by the delay in the investigations and the report he ultimately submitted to his superior officer suggesting that the case should be dropped, which was refused. I think what the learned judge ought to have taken into consideration, but failed to do, was the fact that if for a period of almost two months or over after the incident no action had been taken on the complaint made, then the police ought not expect to find the door in the same condition as it was when it was damaged.
Now what amounts to reasonable and probable cause can be found in the definition given by Hawkins J. in Hicks v. Faulkner12 and approved by the House of Lords in Herniman v. Smith13 as follows:
“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.”
Hawkins J. in Hicks v. Faulkner14 went on:
“The question of reasonable and probable cause depends in all cases not upon the actual existence, but upon the reasonable bona fide belief in the existence, of such a state of things as would amount to a justification of the course pursued in making the accusation complained of—no matter whether this belief arises out of the recollection and memory of the accuser, or out of information furnished to him by another.”
In the light of the foregoing definition and having regard also to the reasons given by the learned judge for dismissing the claims against the second and third defendants, upon whose information it is apparent the appellant reliably based his report to the police, the learned judge erred in law when he held that the appellant acted without reasonable and probable cause.
For the above reasons I am also of opinion that the appellant is bound to succeed in any event in terms of ground 1 (ii) of the appellant’s grounds of appeal. Hence I associate myself with the view expressed by my brother Akainyah that had there been an appearance by or on behalf of the respondents in this court, the proper course to adopt would have been to call upon them to support the judgment.
