HIGH COURT, SUNYANI
DATE: 18TH MAY, 1962
BEFORE: BRUCE-LYLE, J.
CASES REFERRED TO
(1) Aubin v. Ehunaku [1960] G.L.R. 167
(2) Danby v. Beardsley (1880) 43 L.T. 603
(3) Chief Ehiman Payin & Anor. v. Adiaba Aliuah & Anor. (1953) 14 W.A.C.A. 267
NATURE OF PROCEEDINGS
ACTION for damages for malicious prosecution.
COUNSEL
K. Dwira Poodo for J. N. Heward-Mills for the plaintiffs.
I. Boakye for C. F. Hayfron-Benjamin for the defendants.
JUDGMENT OF BRUCE-LYLE J.
In this case the plaintiffs’ claim against the defendants is for special damages of £G22 4s.0d. and for £G3,000 general damages for each plaintiff as against the defendants jointly and severally for malicious prosecution. The particulars of special damages appear on the writ and also in the statement of claim.
The case for the plaintiffs is that first defendant on the 13th May, 1960, wrote a letter of complaint exhibit B to the police, and in that letter preferred charges of larceny against the plaintiffs; that the first defendant confirmed the contents of the letter of complaint by an affidavit sworn to by himself on the 13th May, 1960, exhibit E; that on the strength of this complaint the plaintiffs were prosecuted before the district magistrate, Goaso, on a charge of stealing and were acquitted; that this letter of complaint was maliciously written and that the defendants had no reasonable or probable cause for such complaint.
The first plaintiff gave evidence for himself and on behalf of the other plaintiffs and from his evidence it appeared that the first defendant was the one who wrote the letter of complaint and that the second and third defendants gave statements to the police and gave evidence for the prosecution at the trial before the district magistrate, Goaso.
It is necessary to set out in full the letter of complaint dated the 13th May, 1960, exhibit B and its accompanying affidavit of the same date.
EXHIBIT B
“Kwasi Soadwah House No. A.B. 1, Sewuah Abuaso,
13th May, 1960.
Sir,
Statement of Kwasi Soadwah requesting Police immediate action on the subject stated hereunder: I am a native of Sewuah Abuaso a farmer now residing at Tweapease via Kassem. I remember on or about 27th 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 C.P.P. 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 Awuna who led the C.P.P. thugs and pointed out my house, saying, this house belongs to U.P. member and that they rushed into the house and forced the door to my room opened and looted. Subsequent upon this information, I went to the village and found that the following properties belonging to me had been filtched away by the C.P.P. thugs, to wit: My one air-tight box containing the following personal effects: £G100, currency notes, 4 gold finger rings, valuing about £G11.15s., 6 headkerchiefs valuing about £G2 2s., 6 female cover cloths valuing about £G15, 4 Hausa blankets valuing about £G11 10s., 2 male kente cloths valuing about £G12., 40 eggs valuing about 13s., 6 pairs ear-rings valuing about £G6, my wife’s enamel pans destroyed valuing about £G1, and 1 empty drum used for collecting water also destroyed.
[p.366] of [1962] 1 GLR 364
These persons, namely, Ayaa-Krachi and Asasi ordered these two men Kwaku Beng and Joe Awuna to lead the foregoing C.P.P. 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.
Kwasi Soadwah L.
Complainant T.
P.
The Asst. Commissioner of Police/Ashanti,
Ghana Police Force,
Kumasi/Ashanti.”
EXHIBIT E
“IN THE SUPREME COURT OF GHANA KUMASI
IN THE MATTER OF:—
Affidavit of Kwasi Soadwah confirming facts of statement submitted to the Asst. Commissioner of Police, Kumasi, in respect of looting of his properties by C.P.P. members, as per the statement attached. I, Kwasi Soadwah a farmer and native of Sewuah Abuaso now residing at Tweapease make oath and say as under:
1. That I have been threatened by the C.P.P. thugs and my personal properties looted at Tweapease.
2. That I make this affidavit confirming facts in my statement herein herewith attached, marked A.
3. That these facts may induce and or warrant police investigation.
4. The offenders’ names have been mentioned in my statement.
Sworn at Kumasi this 13th day of May, 1960, after the foregoing having been first read over interpreted and explained in the Twi language by J. E. Appeah to—when he seemed perfectly well to understand the same before
making his mark thereto in the presence of KWASI SOADWAH
Deponent
Witness and Writer to Mark.
R.
T.
P.
His
X
Mark.
BEFORE ME
(Sgd.) J. E. APPEAH
Commissioner for Oaths.
TO THE ASSISTANT COMMISSIONER OF POLICE, GHANA POLICE, KUMASI.
Information Copies to:
(a) The Regional Chairman, United Party, Kumasi.
(b) The Inspector of Police, Ghana Police, Goaso.
Prepared by:
(Sgd.) ? ? ?
Secretary, United Party
Secretariat, Kumasi
No. Ash. 166/S.F. 7/1960.
CHIEF SUPERINTENDENT/BAR.
Referred.
(Sgd). ? ? ?
Assistant Commissioner/Ashanti.
14-5-60
To Inspector/Teppa,
F.N.A.
(Sgd.) ? ? ?
16-5-60.”
[p.367] of [1962] 1 GLR 364
The plaintiffs called as their first witness one Kwasi Acheampong who said that he gave evidence for the plaintiffs when they appeared before the district magistrate’s court. He said further that on the plebiscite election day 27th April, 1960, the first defendant’s personal effects were brought to his room by the first defendant’s wife who collected the articles later. His evidence was to give a lie to the first defendant’s letter of complaint. The plaintiffs called another witness detective sergeant John Kwasi Appiah of the Ghana police service who told this court the nature of his investigations and how the case got to court. I shall deal with the evidence of these witnesses in their material detail later.
The defence of the first defendant was that he wrote exhibits B and E upon the information he received from the second defendant and that his intention in writing these was to get the police to investigate the complaint; that the police investigated the complaint and in the exercise of their discretion put the plaintiffs before the district magistrate’s court on a charge of stealing.
The second and third defendants in their respective defences said in evidence that what each of them did was to give to the first defendant information of what each of them saw; that each of them was invited by the police to give their statements, and that each gave evidence for the prosecution.
It was laid down in Kwahu Ehunaku v. Sampson Kojo Aubin1(1) “that in order that 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.”
The Court of Appeal further laid down that: “a plaintiff will fail unless it can be proved that all these conditions are fulfilled. Failure to prove one of these will be fatal to a plaintiff’s case.”2(2) This is the position of the law relating to claims based on malicious prosecution. It is therefore necessary to examine the evidence for the plaintiffs to find out whether all these conditions have been fulfilled.
I find no difficulty in finding the presence of the fourth condition that the proceedings terminated in favour of the plaintiffs. The proceedings before the district magistrate, Goaso, were tendered as exhibit A and it appears from the concluding portion of the magistrate’s judgment that the plaintiffs were acquitted.
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
[p.368] of [1962] 1 GLR 364
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. Beardsley3(3): “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 Anor4(4) 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.
As against the second and third defendants I find that they were only prosecution witnesses and that they only gave statements of what they knew about the case and it cannot be said with any degree of seriousness that they instigated the prosecution.
The second condition to be fulfilled is: did the defendants act without reasonable or probable cause?
The plaintiffs’ contention in this line is that the defendants knew all along that what they were alleging was not true and that they had no reasonable grounds for believing that they were true. The plaintiffs called the witness Acheampong P.W.1 to substantiate this line, and he said that on the day of the election the first defendant’s personal effects were brought to his room by the first defendant’s wife. When this witness was cross examined he said: “I did not search the articles to see whether they included articles of the wife and the husband.” If this witness did not examine the articles brought to him, how did he know that they were the articles belonging to the husband? There is no evidence by this witness that the first defendant’s wife told him that the articles were those of the husband. There is no evidence that at the time when the first defendant made the written complaint to the police he knew that his wife had taken his articles to Acheampong’s room. I find the evidence of this witness of little value to this court. The date of the complaint is important as it helps this court to decide the presence of this second condition.
By the letter of complaint exhibit B and the evidence, the alleged breaking into and stealing of the first defendant’s articles took place on the 27th April, 1960, and the letter of complaint and affidavit were dated the 13th May, 1960. The period between the date of the incident and the date of the complaint shows that the first defendant probably made some investigations to find out whether what the informant told him was true. By the evidence of the second defendant, the son of the first defendant who according to the first defendant was the one who first gave him the
[p.369] of [1962] 1 GLR 364
information, he only saw the first plaintiff breaking the door of the first defendant’s room with a pestle and that was all he saw as he was slapped and he fell down and then he got up and ran away into the bush and thence to Kumasi where he reported what he saw to the first defendant. If the letter of complaint was the result of only the information of the second defendant it could not have contained details. The first defendant in the letter said he subsequently went to the village and investigated the matter and found the articles mentioned in the letter missing. Did the first defendant go to the village as he had alleged in his letter of complaint ? In his evidence here he said he went to the village three days after the information to him by his son, the second defendant, that he was seen in the village by the third defendant. The third defendant in his evidence said that the first defendant came to the village one and a half weeks after the incident. I have examined the evidence of the first defendant and the third defendant and I am satisfied that the first defendant never went to the village to investigate anything before writing the letter of complaint. This finding coupled with the evidence of Sergeant Appiah that when he conducted the investigation he found no signs of force on the door of the complainant satisfied the second condition that the first defendant did not have any reasonable or probable cause for the complaint as contained in his letter to the police exhibit B.
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 provable cause for their statements to the police cannot make them liable for malicious prosecution. Counsel for the plaintiffs contended that the second and third defendants together with the first defendant conspired to make the false statements to the police, and once there is conspiracy, the second and third defendants must be deemed to have known that there was no reasonable or probable cause for the complaint. I find no evidence to substantiate conspiracy between the defendants. Counsel for the defendants contended that once the plaintiffs, then the accused persons, were called upon by the trial magistrate to make their defence, it followed that the defendants had reasonable grounds for the complaint. I find that whatever prompted the trial magistrate to call the plaintiffs to make their defence is not binding on this court. The mere fact that the magistrate thought there was a prima facie case made out against the plaintiffs does not necessarily mean that the same considerations should weigh with this court. This court has been privileged to hear the very witnesses who appeared before the district magistrate and this court is left with the duty to form its own opinions and assess the credibility of the witnesses without recourse to the conclusions arrived at by the district magistrate. Strictly speaking the plaintiffs should have tendered the concluding part of the trial magistrate’s judgment, and not the whole proceedings, but once the proceedings are in, I am bound to consider them as evidence and make my observations on that evidence.
Did the first defendant act maliciously? Malice in a claim in malicious prosecution is not spite or personal hatred, but improper motive. This condition is invariably akin to the second condition of absence of reasonable or probable cause. If the second condition is established it follows that the condition of presence of malice is also satisfied. I have already found that the first defendant acted without reasonable or probable cause. I therefore find also that he acted maliciously.
[p.370] of [1962] 1 GLR 364
For the above reasons I am satisfied that the plaintiffs have proved their claim as against the first defendant only, and have failed to establish, any case against each of the second and third defendants.
I, therefore, give judgment for the plaintiffs as against the first defendant only and award them special damages of £G22 4s. and general damages of £G200 for each plaintiff, and give judgment for the second and third defendants as against the plaintiffs.
Costs for the plaintiffs as against the first defendant fixed at £G56 17s. 6d. inclusive of counsel’s costs of £G42. Costs for the second defendant as against the plaintiffs are fixed at £G62 inclusive of counsel’s £G42, and for the third defendant as against the plaintiffs also fixed at £G62 inclusive of counsel’s £G42.
DECISION
Judgment for plaintiffs against the first defendant only; action against the second and third defendants dismissed.
