AUBIN v. EHUNAKU [1960] GLR 167

DIVISION: IN THE COURT OF APPEAL

DATE: 13TH JUNE, 1960

BEFORE: KORSAH, C.J., VAN LARE, J.A. AND GRANVILLE SHARP, J.A..

CASES REFERRED TO

(1) Batanhene v. Krampah and Aggrey 1 W.A.L.R. 188

(2) Fitzjohn v. Mackinder 8 C.B. (N.S.) 78 ; 141 E.R. 1094;

(3) Cohen v. Morgan 6 Dow. & Ry. K.B. 8.

NATURE OF PROCEEDINGS

APPEAL against a decision of the Commissioner of Assize and Civil Pleas in favour of the plaintiff in an action for damages for malicious prosecution.

COUNSEL

C.F. Hayfron-Benjamin for appellant.

Ampaw for respondent.

JUDGMENT OF KORSAH C.J. Korsah, C.J. delivered the judgment of the court. (His lordship stated the facts and continued).

The statements given by Essel and Daboah to the police during their investigation have not been produced in this case, but it seems obvious that (since the allegation of forgery was in respect of finger-prints) the police would not have instituted the prosecution against the plaintiff if Essel and Daboah had said that they had put their thumb-prints on the affidavit in question. The police, however, discontinued the criminal case, and the plaintiff was discharged.

Counsel for plaintiff, upon these facts, contended that the law was set in motion against the plaintiff on a criminal charge by the defendant, “and submitted that it suffices that the prosecution ended in the plaintiff’s

[p.168] of [1960] GLR 167 favour,” citing Batanhene and Another v. Krampah and Another (1 W.A.L. R. 188.) in support of his contention. This, however, is an erroneous view of the law relating to malicious prosecution, and but for the fact that the Commissioner of Assize who tried the case was obviously misled thereby we would not deem it necessary to set out the principles upon which liability for malicious prosecution arises.

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; in the proceedings are due.

Instigating a 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. In Fitzjohn v. Mackinder (8 C.B. (N.S.) 78):

“M. sued F. in the county-court for a debt. F. claimed a set-off, in answer to which M. produced his book containing an acknowledgement signed, as he swore, by F. F. denied the signature, which he averred to be a forgery; but the judge, induced by partly the statement of M., and partly by the conduct of F. on previous occasions before him, disbelieving F’s denial, committed him under the 14 & 15 Vict c. 100, s. 19, and bound M. over to prosecute. F. was accordingly tried for perjury, and acquitted. — F. then brought an action against M. for maliciously and without probable cause causing him to be prosecuted on an unfounded charge: —Held, by Erle, C.J., and Williams, J., — Willes, J. dissentiente, — that the committal of F. and the binding over of M. to prosecute being the act of the judge, the action was not maintainable, —although the judge was in part influenced by the perjury and forgery of M.” So, too, in the case of Cohen v. Morgan (6 Dow. & Ry. K. B. 8.): “Where a person having lost a bill of exchange, which he supposes to have been stolen, goes before a magistrate, and relates the circumstance of the loss, and the magistrate grants his warrant to apprehend A.B. on a charge of having ‘feloniously stolen, taken and carried away’ the bill of exchange, (language which the complainant did not use when he laid his information), and upon subsequent investigation of the case it turned out to be no felony: Held, that no ground existed for inferring malice on the part of the complainant, and no cause of action against him.”

In the instant case, all that the defendant is said to have done is to have made a candid statement of alleged facts. The statement was contained in an affidavit sworn by him in support of a motion which he had filed

[p.169] of [1960] GLR 167 with respect to an application made by the plaintiff in a suit then pending before a native court. The latter was constituted by a panel of members who may be considered to have been exercising jurisdiction analogous to that of a magistrate. The presiding panel of their own motion forwarded the affidavit to the police, and it was the police who (after investigation) instituted criminal prosecution against the plaintiff. Defendant is not responsible for the consequences of any step which the panel, in exercise of their discretion, thought fit to take upon defendant’s affidavit. We accordingly allow the appeal.

DECISION

Appeal allowed