COURT OF APPEAL, ACCRA
Date: 21 JULY 1975
AZU CRABBE C.J., SOWAH AND FRANCOIS JJA
CASES REFERRED TO
(1) Yeboah v. Boateng VII [1963] 1 G.L.R. 182, S.C.
(2) Danso v. Oteng; Danso v. Abaka (1956) 2 W.A.L.R. 167, W.A.C.A.
(3) Panyin v. Aliuah (1953) 14 W.A C.A. 267.
(4) Onogen v. Leventis & Co., Ltd. [1959] G.L.R. 105.
(5) Alhadi v. Allie (1951) 13 W.A.C.A. 323.
(6) Leigh v. Webb (1800) 3 Esp. 165; 170 E.R. 574.
(7) Danby v. Beardsley (1880) 43 L.T. 603.
(8) Tewari v. Singh (1908) 24 T.L.R. 884, P C.
(9) Fitzjohn v. Mackinder (1861) 9 C.B. (N.S.) 505; 30 L.J.C.P. 257; 4 L.T. 149; 25 J.P. 244; 7 Jur. (N.S.) 1283; 9 W.R. 477; 142 E.R. 199.
(10) Benmax v. Austin Motor Co., Ltd. [1955] A C. 370; [1955] 2 W.L.R. 418; 99 S.J. 129; [1955] 1 All E.R. 326; 72 R.P.C. 39, H.L.
(11) Savile v. Roberts (1698) 1 Ld. Raym. 374; 1 Salk. 13; 3 Salk. 16; Holt K.B. 150; 5 Mod. Rep. 394; 91 E.R,. 1147.
(12) Wiffen v. Bailey and Romford Urban District Council [1915] 1 K.B. 600; 84 L.J.K.B. 688; 112 L.T. 274; 79 J.P. 145; 31 T.L.R. 64; 59 S.J. 176; 13 L.G.R. 121, C.A.
(13) Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674; 52 L.J.Q.B. 488; 49 L.T. 249; 31 W.R. 668, C.A.
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(14) Berry v. British Transport Commission [1962] 1 Q.B. 306; [1961] 3 W.L.R. 450; 105 S.J. 587; [1961] 3 All E.R. 65, C.A.; reversing in part [1961] 1 Q.B. 149; [1960] 3 W.L.R. 666; 104 S.J. 826; [1960] 3 All E.R. 322.
(15) Byne v. Moore (1813) 5 Taunt. 187; 128 E.R. 658.
(16) Campbell (Donald) & Co., Ltd. v. Pollack [1927] A C. 732; 96 L.J.K.B. 1132; 137 L.T. 656, H.L.
(17) Ritter v. Godfrey [1920] 2 K.B. 47; 89 L.J.K.B. 467; 122 L.T. 396; 36 T.L.R. 144, C.A.
NATURE OF PROCEEDINGS
APPEAL by the first appellant against conviction for malicious prosecution and by the second appellant against the trial court’s failure to award him costs. The facts are fully set out in the judgment of Azu Crabbe C.J.
COUNSEL
E. O. Appiah for the appellants.
Mahama for the respondents.
JUDGMENT OF AZU CRABBE C.J.
This appeal is from a decision of the Circuit Court, Tamale, given on 29 November 1971, and arises in these circumstances: All the parties live at Limo village in the Northern Region of Ghana and the first appellant (hereinafter referred to as the first defendant) is the chief of the village. On 30 April 1971, the first defendant instituted separate civil proceedings in the District Court Grade II, Yendi, against the first and second respondents (hereinafter referred to as the first and second plaintiffs) claiming “0100.00 for unlawfully fishing and polluting public water drinking dam.” These proceedings were, however, struck out. On 6 May 1970, the first defendant, accompanied by the second appellant (hereinafter referred to as the second defendant), went to the police charge office, Yendi, and made a report which was recorded in the police station diary as follows:
“Wednesday 6 May 1970 47:8.10 a.m.
One Seidu Musah, chief of Limo village (first defendant) accompanied by Abukari (second defendant) also of the village came to the station and the former (first defendant) complained that about three months ago one Abukari Grumah (second plaintiff) and Alhassan Wulana (first plaintiff) also residents of the village were found fishing in the only dam in the village which served as drinking water. That the chief called them with a view of warning them not to go and fish in the dam again but they refused to attend to his call by saying that he Seidu Musah (first defendant) is not a chief . . . as such wants to inform police.”
The plaintiffs were subsequently identified to the police by the defendants and were arrested and kept in custody at the Yendi Police Station. They were in due course charged under section 287 (d) of the Criminal Code, 1960 (Act 29), and brought before the District Court Grade II, Yendi. Section 287 (d) reads as follows (only the relevant provisions are quoted):
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“Whoever, without lawful authority or excuse (the proof whereof shall lie on him) commits any of the following nuisances, namely—
(d) . . . foul the water of any public well, . . . reservoir, or place used or intended for supplying water to man or for fish culture,
shall be liable to a fine not exceeding one hundred pounds and shall, upon conviction for a continuance or repetition of any such offence be guilty of misdemeanour.”
On 10 June 1970, after the defendants had given evidence in support of the charge, the prosecuting officer withdrew the charge, and the plaintiff were acquitted and discharged. Consequently, on 20 June 1970, the plaintiff issued a writ against the defendants claiming 02,000.00 general damages for malicious prosecution and a statement of claim setting out the facts as I have recited them was delivered on the same date. In paragraph (8) of the statement of claim, it was alleged that at the time of making the report to the police the defendants knew that neither the first plaintiff nor the second plaintiff “ever went to the dam to fish nor did they pollute the water.” It is stated in paragraph (9) that the defendants falsely and maliciously made the report against the plaintiffs because the relationship between the plaintiffs and the defendants was strained. In a notice filed on 1 September 1970 the plaintiffs sought leave to amend the endorsement on the writ and the statement of claim by adding a claim for special damages. Particulars of special damages, being the costs of their defence before the district magistrate, amounting to 0200.00. In a statement of defence filed on behalf of the defendants on 3 September 1970, it was admitted that a report was made to the police, as alleged by the plaintiffs, but it was denied that the report was false, or that the plaintiffs were actuated by malice. In paragraph (4) of the statement of defence it was alleged as follows: “The defendants deny paragraph (6) of the statement of claim and say that if the plaintiffs were charged with any offence at all, which fact is not admitted, the same was not a charge brought by the defendants but must have been the act of the police as a result of decisions taken by them upon investigations conducted by the police.”
And in paragraph (7) it was also specifically alleged: “The defendants say that the plaintiffs’ statement of claim does not disclose any reasonable cause of action vested in both or either of the plaintiffs against either or both defendants.”
The learned circuit judge, after hearing the evidence, gave a well-reasoned judgment in which he decided in favour of the plaintiffs against the first defendant, and awarded each plaintiff N0300.00 general damages. With regard to special damages, the learned circuit judge found that each plaintiff had failed to prove his claim, and he accordingly dismissed the claim of each plaintiff under that head. The learned circuit judge further dismissed the whole case against the second defendant and accordingly entered judgment for him, but the learned circuit judge, for reasons, if
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any, which do not appear in the record, deprived him of his costs against the plaintiffs.
The defendants have now appealed to this court, and the only main issue raised during the argument in this appeal is whether it can be said that the first defendant prosecuted the plaintiffs.
In an action for malicious prosecution the plaintiff must show:
(1) that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge;
(2) that the prosecution was determined in his favour;
(3) that it was without reasonable and probable cause; and
(4) that it was malicious.
See Yeboah v. Boateng VII [1963] 1 G.L.R. 182 at p. 183, S.C.
The main complaint of the first defendant in this appeal is that the learned circuit judge did not make any finding as to who was the prosecutor, and Mr. Appiah, counsel for the defendants, submitted that without making such a finding, the learned circuit judge could not have given judgment for the plaintiffs. This is more so especially when the evidence established that it was the inspector of police who signed the charge-sheet, and that the actual prosecution was conducted by the assistant commissioner of police. Counsel contended that, in the circumstances, it was incumbent on the learned circuit judge to hold that it was the police who were the prosecutors and not the defendants. In support of his argument counsel relied on the decisions in Danso v, Oteng; Danso v. Abaka (1956) 2 W.A.L.R. 167 at p. 172 W.A.C.A., Payin v. Aliuah (1953) 14 W.A.C.A. 267 and Onogen v. Leventis & Co., Ltd. [1959] G.L.R. 105, and submitted that there had been no case in which it had been held that a mere complaint to the police was alone sufficient to ground liability in an action for malicious prosecution. Counsel further submitted that mere identification of the subject of the complaint is no evidence of a direction to prosecute. He contended that there was no evidence that after the complaint the defendants took the witnesses to the police.
Counsel for the plaintiffs, Mr. Mahama, argued that to determine whether the defendants prosecuted the plaintiffs one had to look at the conduct of the defendants, and submitted that the defendants by their conduct set the law in motion.
Who then is the prosecutor? In Clerk & Lindsell on Torts (13th ed.), para. 1887 at p. 1061, it is stated:
“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 in question, and to be liable for malicious prosecution a person must be actively instrumental in so setting the law in motion. 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 he 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. But if he goes before a magistrate who thereupon issues his warrant, then his liability, if any, is for malicious prosecution.
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In para. 1889 at p. 1063, it is again stated:
“A person who simply makes an honest and candid 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. The magistrate acts of his own motion and not at the instigation of the person giving the information, who therefore is not to be considered as a prosecutor.”
The law is further explained in para. 1890 thus:
“If an actual charge is made, though in an indefinite form and as a mere matter of suspicion and hearsay, a prosecution is thereby instituted, and 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.”
In my view, a person is “actively instrumental” in setting the law in motion if he does more than merely give information to the police or a judicial officer, such as a magistrate: see Alhadi v. Allie (1951) 13 W.A.C.A. 323, Payin v. Aliuah (supra) and Leigh v. Webb (1800) 3 Esp. 165. The locus classicus on the subject is Danby v. Beardsley (1880) 43 L.T. 603. In that case the defendant had missed two pairs of horse clippers from his stables. He sent for a police constable, and said: “I have had two 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. The 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 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 at p. 604:
“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 Onogen v. Leventis & Co., Ltd. [1959] G.L.R. 105 Adumua-Bossman J. (as he then was) after referring to Alhadi v. Allie (supra), expressed himself as follows at p. 115:
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“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.”
But a defendant, though not technically a prosecutor within the meaning of the authorities discussed above, will nevertheless be liable for malicious prosecution where the complaint he makes to the police or the judicial officer is known by him to be false. Thus, in Tewari v. Singh (1908) 24 T.L.R. 884, Sir Andrew Scoble, in delivering the judgment of their lordships in the Judicial Committee of the Privy Council, said:
“If, therefore, a complaint did not go beyond giving what he believed to be correct information to the police and the police, without further interference 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 upon 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 making 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 person immediately aggrieved by the offence, who, pro hac vice, represented the Crown.”
In the course of his judgment Sir Andrew Scoble cited the case of Fitzjohn v. Mackinder (1861) 9 C.B. (N.S.) 505, in which Cockburn C.J. said at p. 531:
“A prosecution, though in the outset not malicious, as having been undertaken at the dictation of a judge or magistrate, or, if spontaneously undertaken, from having been commenced under a bona fide belief in the guilt of the accused, may nevertheless become malicious in any of the stages through which it has to pass, if the prosecutor, having acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution with the intention of procuring per nefas a conviction of the accused.”
In his able judgment, the learned circuit judge reviewed the whole evidence and stated as follows: “From the above evidence, it is plain that the first defendant from the very beginning knew and reasonably ought
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to have known that the first plaintiff and second plaintiff did not fish ‘in nor pollute the dam’.” The learned circuit judge then proceeded to make two crucial findings of fact. First, he said:
“I find that the first defendant knew that it was the second defendant and others who fished in and polluted the dam and certainly not the first plaintiff and the second plaintiff and that the first defendant made a false report to the police at Yendi.”
Secondly, he said:
“I do, therefore, find that when the first defendant made a report to the Yendi Police in March 1970 that the first plaintiff had polluted and fouled the dam he knew and ought reasonably to have known that the report was false and he had no reason to believe in the truth of that report.”
Having made these primary findings of fact, the learned circuit judge further said: “In my view the first plaintiff had satisfied the test laid down by Sir Andrew Scoble in Tewari v. Singh quoted above.” He expressed a similar view in the case of the second plaintiff against the first defendant.
In this appeal, it has been argued that the appeal ought to be allowed, because the learned circuit judge failed to make a positive finding that the first defendant was the prosecutor of the plaintiffs at the District Court, Yendi. This argument appears attractive, but, with respect, it is without any merit. A judge, sitting without a jury, has two functions to perform: firstly, the perceptive function, which is the establishment of particular facts; and secondly, the function of evaluating the facts which have been found. As Viscount Simonds emphasized in Benmax v. Austin Motor Co., Ltd. [1955] 2 W.L.R. 418 at p. 420, H.L.:
“some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts.”
In the same case, Lord Reid also observed at p. 422:
“But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.”
In the above passages quoted from the judgment appealed from, the learned circuit judge made specific findings that the report made to the police at Yendi was false to the knowledge of the first defendant, who had no reason to believe in the truth of the report. This court, as an appellate tribunal, has full liberty to draw its own inferences from the established facts, i.e. the perceptive facts and in my view, the conclusion that can be drawn from the facts is that the first defendant was the prosecutor in the criminal proceedings against the plaintiffs in the District Court Yendi. It
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seems clear to me that this was what the learned circuit judge really meant when he said that the plaintiffs had satisfied the test in the Tewari case (supra).
But the prosecutor in an action for malicious prosecution cannot be made liable, unless the plaintiff proves that he suffered damage, and I think it is very unfortunate that the issue as to whether the plaintiffs’ statement of claim disclosed any cause of action, as averred in paragraph (7) of the statement of defence, was not tried as a preliminary issue.
The conditions necessary for the maintenance of an action for malicious prosecution were given by Holt C.J. in Savile v. Roberts (1698) 1 Ld. Raym. 374 at p. 378 as follows:
“1. The damage to a man’s fame, as if the matter whereof he is accused be scandalous . . . 2. The second sort of damages, which would support such an action, are such as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty . . . 3. The third sort of damages, which will support such an action, is damage to a man’s property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused . . .”
Holt C.J. further adds at p. 380 that:
“The common law has made provision, to hinder malicious and frivolous and vexatious suits, that every plaintiff should find pledges, who were amerced, if the claim was false; which judgment the Court heretofore always gave, and then a writ issued to the coroners, and they affeered them according to the proportion of the vexation . . . But that method became disused, and then to supply it, the statutes gave costs to the defendants . . . But there was no amercement upon indictments, and the party had not any remedy to reimburse himself, but by action.”
A claim for malicious prosecution cannot be sustained without proof of damage under one of the three heads stated by Holt C.J.
“It is not every criminal charge brought and dismissed that will form the basis of an action for malicious prosecution. A charge will only do so if it is of a scandalous nature, or if it is one which “necessarily and naturally” affects the “fair fame” of the person accused: see Wiffen v. Bailey and Romford Urban District Council [1915] 1 K.B. 600 per Buckley L.J. at p. 608, C.A.; and Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674, C.A. In Wiffen’s case (supra) Phillimoore L.J. said at pp. 611-612 that:
“It seems to me that what one must look at is, not what might be proved in the course of a prosecution, but what is enough to support a conviction upon the information or indictment. If it will be enough to support a conviction upon the information or indictment that the person charged has done something which does not injure his fair fame, no scandal is involved for the prosecution . . . ‘Scandal,’ as the cases show, means something derogatory to the fair fame of the person charged.”
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In explaining the test laid down in Wiffen’s case for determining whether a charge was injurious to a person’s “fair fame” so as to sustain an action for malicious prosecution, Diplock J. (as he then was) said in Berry v. British Transport Commission [1961] 1 Q.B. 149 as follows at p. 166:
“Although the court refrained from using the expression ‘defamatory’— a term of art which would have made their meaning clear—I think that, put at its highest in the plaintiff’s favour, the test that they must have been intended to lay down was: Was the charge one which necessarily and naturally is defamatory of the plaintiff? In effect, I have to ask myself a question, which is the converse of the question of law involved in actions for defamation: Is the statement that the plaintiff was charged with the offence capable of a non-defamatory meaning? And to obtain the answer to that question I have to postulate all possible circumstances in which a person might be successfully prosecuted for the offence of which the plaintiff was charged, and ask myself if I can conceive of facts which, if stated of the plaintiff, would not be defamatory of her, that is, lower her in the estimation of right-thinking members of society generally (Sim v. Stretch), although they would support a conviction for that offence.”
Through Diplock J.’s views in the passage were not disapproved in the Court of Appeal, Danckwerts L.J. suggested in [1962] 1 Q.B. 306 at pp. 335-336 another test as follows: “reason demands that the standard should be whether a reasonable man, hearing of the proceedings brought against the plaintiff, would from the view that they were a damaging reflection on the ‘fair fame’ of the plaintiff.”
Where the law punishes an offence with imprisonment a moral stigma inevitably attaches to the convicted person. But an offence which is punishable by a fine only does not necessarily entail such damage as will support an action for malicious prosecution. In such a case, damage to fame will only be presumed if the offence charged is necessarily and naturally defamatory of the plaintiff.
The proceedings against the plaintiffs were taken under section 287 (d) of the Criminal Code, 1960, and if the prosecution had succeeded, only fines might have been imposed. If the fines had not been paid, a distress warrant might have been issued under section 317 of the Criminal Procedure Code, 1960 (Act 30). The provisions of sections 318, 319 and 320 of Act 30 show that the courts will make an order for imprisonment in default of the payment of a fine only as a last resort. Hence, the prosecution of the plaintiffs in this case did not put them in immediate danger of losing their liberty. Therefore, to bring their case under the first head of damage in Savile v. Roberts (1698) 1 Ld. Raym. 374 the plaintiff must show that the offence with which they were charged was necessarily and naturally defamatory of them. The charge against the two plaintiffs was that they had fouled a water dam at Limo village, the main source of water for the village, by fishing in it. There was no allegation of dishonesty or that they had put any deleterious matter in the dam. No scandal was
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alleged. I cannot, therefore, in the circumstances conceive how any reasonable person in Limo village would form the view that the charge had injured the fair fame of the plaintiffs. In Byne v. Moore (1813) 5 Taunt. 187, Sir James Mansfield C.J. said at p. 191:
“I feel a difficulty to understand how the plaintiff could recover in the present action, wherein he could recover no damages, because he clearly has not proved that he has sustained any: I can understand the ground upon which an action shall be maintained for an indictment which contains scandal, but this contains none, nor does any danger of imprisonment result from it: this bill was a piece of mere waste paper.”
The plaintiffs again failed to prove that they spent any money in their defence, and, therefore, they could not bring themselves under Holt C.J.’s third head of damage. In my judgment, the plaintiffs, having failed to prove damage, were not entitled to succeed in an action for malicious prosecution, for as Buckley L.J. in Wiffen v. Bailey and Romford Urban District Council (supra) said at p. 607: “If there be no scandal, if there be no danger of loss of life, limb, or liberty, if there be no pecuniary damage, the action will not lie.” I would, therefore, by virtue of the powers conferred on this court by rule 32 of the Court of Appeal Rules, 1962 (L.I. 218), allow the appeal of the first defendant and set aside the judgment of the court below in so far as it affects the first defendant, together with any order as to costs. Since the appeal of the first defendant has succeeded on a point taken by the court itself, I would order that the first plaintiff and the first defendant each pay his own costs both in this court and in the court below.
The learned circuit judge, deprived the second defendant of his costs after successfully defending the action brought against him by the plaintiffs. The learned judge gave no reasons for exercising his discretion in this way. The grounds on which a court in a civil case can deprive a successful litigant of his costs are well-settled. In Donald Campbell & Co., Ltd. v. Pollack [1927] A.C. 732 at p. 811, the House of Lords approved the dictum of Lord Sterndale M.R. in Ritter v. Godfrey [1920] 2 K.B. 47 at pp. 52-53, C.A., as follows:
“there is such a settled practice of the Courts that in the absence of special circumstances a successful litigant should receive his costs, that it is necessary to show some ground for exercising a discretion by refusing an order which would give them to him. The discretion must be judicially exercised, and therefore there must be some grounds for its exercise, for a discretion exercised on no grounds cannot be judicial.”
I cannot discover any special circumstances in this case why the second defendant should be deprived of his costs, and as I have said earlier, the learned judge gave no reason for the exercise of his discretion, though this appears to have been inadvertent. In the circumstances, I would allow the appeal of the second defendant against the failure of the learned circuit judge to award him costs against the plaintiffs. I would,
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therefore, award the second defendant his costs in the court below which are assessed as 70.00 and also his costs in this court fixed at 150.00.
JUDGMENT OF SOWAH J.A.
I agree.
JUDGMENT OF FRANCOIS J.A
I also agree.
DECISION
Appeal allowed.
L.F.A.
