MANSOUR v. EL NASR EXPORT AND IMPORT CO. [1963] 2 GLR 316

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 2ND SEPTEMBER, 1963

BEFORE: PREMPEH J.

CASES REFERRED TO

(1) Daniels v. Fielding (1846) 16 M. & W. 200; 153 E.R. 1159

(2) Lloyd v. Harris (1792) Peake 231; 170 E.R. 140

(3) Petrie v. Lamont (1842) 3 Man. & G. 702; 133 E.R. 1322

(4) Bristow v. Heywood (1815) 1 Stark. 48, 171 E.R. 397

(5) Nicholson v. Coghill (1825) 4 B. & C. 21; 107 E.R. 967

(6) Austin v. Debnam (1824) 3 B. & C. 139; 107 E.R. 686

NATURE OF PROCEEDINGS

ACTION for damages for false imprisonment and malicious arrest. The facts are fully set out in the judgment.

COUNSEL

A. Asafu Adjaye for the plaintiff.

C. R. Adjaye for the defendants.

[p.318] of [1963] 2 GLR 316

JUDGMENT OF PREMPEH J.

The plaintiff by his amended writ of summons claims from the defendants: (a) £G5,000 damages for false imprisonment; (b) £G500 special damages for the malicious representations deposed to in affidavit dated the 20th April, 1963, and (c) £G5,000 damages for malicious arrest and detention. The statement of claim as amended and filed on his behalf is as follows:

“(1) The plaintiff is the managing director of the Cedar Haulage Services stationed at Takoradi. The defendants are merchants residing in Accra.

(2) On or about the 20th April, 1963, at about 7.30 a.m. the police, acting on the instructions of the defendant, wrongfully arrested and detained and or imprisoned the plaintiff till 1.00 p.m.

(3) On or about the 20th April, 1963, the defendant wrongfully and without any legal justification made false representations to the police namely:

(a) That the plaintiff was indebted to them in the sum of £G7,650.

(b) That the plaintiff had sold all his property preparatory to his leaving this country on the 20th

April, 1963.

(c) That the plaintiff intended to remain outside Ghana permanently therefrom as a result of which the police arrested, detained and imprisoned the plaintiff on the 20th April, 1963.

(4) At 12 noon on the same day (20th April, 1963) whilst the plaintiff was still under the unlawful detention by the police the defendants caused a writ of summons to be issued and served on the plaintiff in the suit No. 204/63 entitled El Nasr Export & Import Company (Ghana) v. Nabih Mansour, in which the defendants claimed the sum of £G7,650 as stated hereunder:-

(a) The plaintiffs’ claim is for the sum of £G7,650 being the value of the undermentioned cheques drawn by the defendant in favour of the plaintiffs and dishonoured on presentation. Notice of the dishonour has been given to the defendant.

(5) In further pursuance of the writ of summons referred to in paragraph 4 above and whilst the plaintiff was to the knowledge of the defendant still in the custody or detention of the police, the defendant upon the false and malicious representations deposed to in an affidavit sworn to by one Hosni Salum applied to the High Court and obtained an absconding warrant and had the plaintiff arrested and detained at the Government prison situate at Nsawam until Monday, the 22nd when the defendant was brought to the High Court and granted bail.

(6) The plaintiff has denied liability to the claim referred to in paragraph 4 above and further the plaintiff avers that the allegations which the defendants made to the police and also to the judge of the High Court referred to in paragraphs 3 and 5 above are false, untrue and malicious to the knowledge of the defendants.

(7) (a) By reason of the premises the plaintiff was deprived of his liberty and prevented from attending to his business, has incurred loss and expense in procuring his freedom and has suffered injury in reputation and credit.

[p.319] of [1963] 2 GLR 316

(b) The plaintiff further avers that the suit No. 204/63 entitled El Nasr Export and Import Company (Ghana) v. Nabih Mansour referred to in paragraph 4 of statement of claim and which formed the alleged ground of the action for the malicious arrest was on the 8th day of June, 1963, dismissed for want of prosecution with costs of 150 guineas awarded against the plaintiffs therein which said costs were on the 28th June, 1963, paid to the defendant’s solicitors.

(8) Wherefore the plaintiff has suffered damage as a result of the defendant’s false imprisonment and malicious arrest.

(9) Wherefore the plaintiff’s claim is for the sum of £G10,500 whereof:

(a) £G5,000 represents damages for false imprisonment.

(b) £G500 represents special damage for false and malicious representations deposed to in affidavit dated the 20th April, 1963. (c) £G5,000 represents damages for malicious arrest and detention.

Particulars of Special Damage

(a) Closing of plaintiff’s business being the period of imprisonment. Loss of profit . . . £G400

(b) Expenses in engaging counsel . . . £G100.”

Following the filing and service of the statement of claim, a statement of defence as amended was also filed by counsel on behalf of the defendants herein as hereunder:

“(1) Paragraph 1 of the plaintiff’s statement of claim is admitted.

(2) The defendants deny paragraph 2 of the plaintiff’s statement of claim and in answer state that they issued a specially endorsed writ claiming £G7,650 from the plaintiff and had the writ served on the plaintiff who was then at the Criminal Investigation Department Headquarters.

(3) The defendants deny paragraph 3 of the plaintiff’s statement of claim and in answer aver that at the time of the issue of the writ the plaintiff was truly and justly indebted to the defendants in the sum of £G10,150 and had issued post-dated cheques three of which were dishonoured on presentation to the bank for payment.

(4) The defendants are not in a position to admit or deny that the plaintiff was kept in unlawful custody but admit having caused a writ of summons claiming £G7,650 referred to in paragraph 4 of the plaintiff’s statement of claim.

(5) The defendants admit that they had applied for and obtained an absconding warrant but deny that the representations deposed to and on the strength of which the warrant was granted were false or malicious.

(6) In answer to paragraph 6 of the plaintiff’s statement of claim, the defendants aver most emphatically that the representations made to the High Court were neither false nor untrue nor malicious.

(7) In further answer to paragraph 6 the defendants deny having made false allegations to the police nor any other allegations at all.

(8) The defendants are not in a position to admit or deny paragraphs 7, 8 and 9 of the plaintiff’s statement of claim save as hereinafter expressly admitted the defendants deny every allegation of fact contained in the plaintiff’s statement of claim as if the same were set out in full and traversed seriatim.

[p.320] of [1963] 2 GLR 316

(9) The defendants expressly deny paragraph 9 of the plaintiff’s statement of claim and in answer to the amendment thereto the defendants aver that it is a novel cause of action and an abuse of the process of the law in effect it is one and the same thing as the plaintiff’s claim of £G5,000 damages for false imprisonment in paragraph 9 (a) of the plaintiff’s statement of claim.”

On these pleadings in order to succeed on claim (a) the plaintiff must satisfy the court that he was imprisoned, and that his imprisonment was false and actuated or caused by the defendants. On his claims

(b) and (c) he must satisfy the court that an affidavit was sworn to for the purpose of obtaining the judge’s order for his arrest; that it was false; that an order was made for the arrest; that the arrest was made under it; that the order was rescinded or the suit determined; the plaintiff must also satisfy the court as to the defendants’ malice and want of reasonable or probable cause and as to the damage.

On his first claim, quite apart from his own evidence to which I shall refer later, the plaintiff called an assistant superintendent of police attached to the Criminal Investigation Department, Accra, who gave evidence on his behalf. His evidence is to the effect that on the 20th April, 1963, acting on a report received from the defendants, he arrested the plaintiff at about 7.30 a.m. in his house in Accra, and took him to the Criminal Investigation Department Headquarters where he was detained until 11.45 a.m. He received the report from the defendants at about 6.30 p.m. on the 19th April, 1963, the effect of which was that the plaintiff herein had made certain representations to them (the defendants) and had thereby received a large quantity of cement valued at about £G7,000 and that although the plaintiff had not paid for their value, they (the defendants) had received information that the plaintiff was leaving Ghana for the Lebanon for good.

He deposed that as he believed in the truth of the report and as he considered the matter an important and urgent one, he checked up the same evening with the Principal Immigration Officer whether the plaintiff had applied for a visa and that when he received a negative reply he made further enquiries from the police posts at the frontiers but he had replies that there was no sign that the plaintiff was about to cross the border. His investigations led him to a house in Accra where he arrested the plaintiff at 7.30 a.m. on the 20th April, 1963, and took him to the police station and questioned him about the substance of the report, and after the plaintiff had specifically denied the allegation made against him in the said report, he telephoned to the defendants who advised him that one of their representatives was coming to the police station to see him. He stated that the defendants’ representative did not arrive until 11.45 a.m., and that when he eventually arrived, he was accompanied by two bailiffs of the High Court. The representative told him that he had brought the bailiffs to serve a writ of summons on the plaintiff, and at the same time to arrest him upon an absconding warrant, and that it was when these court processes were shown to him and executed on the plaintiff that he released the plaintiff unto the bailiffs who had been directed to deliver him to the gaoler at Nsawam Medium Security Prison.

[p.321] of [1963] 2 GLR 316

Now it is significant to observe that this evidence was not in any way contradicted either having regard to the report which the defendants made and on which the police acted, or as to the effect and substance of the said report. What the defendants rather sought to contend was that since the witness had had negative answers to his checks, he was not justified in arresting the plaintiff, but it is quite clear from the witness’s reply to questions put to him that it was his duty to arrest the plaintiff and to investigate the report. Now the writ of summons served on the plaintiff which was put in evidence and marked exhibit E is numbered 204/63. A representative of the registrar of the High Court who gave evidence for the plaintiff tendered in evidence a certified true copy of the court’s order dated the 20th April, 1963, for the plaintiff’s arrest which was admitted as exhibit A, the court’s order dated the 22nd April, 1963, granting him bail marked exhibit A, and the court’s order dated the 18th June, 1963, dismissing the said suit No. 204/63 in which the defendants herein were the plaintiffs marked exhibit A2.

He tendered also the original motion paper supporting the affidavit marked exhibit B1 and B2 respectively, filed by the defendants herein in that suit, pursuant to which the order for the plaintiff’s arrest was made and also the original absconding warrant marked exhibit O issued for the arrest of the plaintiff at the back of which was the bailiff’s certificate showing the actual date of the plaintiff’s arrest and the delivery of him to the gaoler at Nsawam Prison. He tendered also the bail bond marked exhibit D. Although the defendants had pleaded in paragraph 4 of their statement of defence that they were not in position to admit or deny that the plaintiff was kept in custody, yet when the superintendent of Nsawam Prison, called at the plaintiff’s instance, mounted the witness-box, counsel for the defendants stated at that stage that the defence no more disputed the fact that the plaintiff was arrested on the 20th April, 1963, and that he detained in Nsawam Prison from that date till the 22nd April, 1963.

I think it is significant also at this stage to state as hereunder the specific charges or allegations made against the plaintiff by the defendants in their affidavit exhibit B2:

“(1) That I am the Assistant Manager of El Nasr Co., Accra.

(2) That the company has today issued a writ of summons against the defendant claiming the sum of £G7,650 on a specially endorsed writ being the value of four cheques totalling that amount drawn by the defendant in favour of the plaintiff company and dishonoured on presentation, notice of such dishonour having been given to the defendant.

(3) That I am informed and verily believe that the defendant in an endeavour to escape payment of this sum and additional sums amounting in total to £G17,000 now owing to the plaintiffs’ company is immediately ready to flee the country and remain permanently therefrom.

(4) That I am informed and verily believe that the said defendant has sold all his property preparatory to so leaving the country.

[p.322] of [1963] 2 GLR 316

(5) That I am informed and verify believe that the said defendant is due to leave Ghana tomorrow,

Saturday, the 20th April, 1963, and will do so if not duly prevented.

(6) That I make this affidavit in support of my application for a warrant to issue to prevent the defendant from so absconding.”

Now the undisputed evidence of the assistant superintendent of police as to the plaintiff’s arrest at 7.30 a.m. until the delivery of him at 11.45 a.m. to the court bailiffs was confirmed by the evidence of the plaintiff himself who deposed that when he was arrested, several prominent personalities of the Lebanese community in Accra who had heard of his arrest, including the Lebanese Consul in Ghana, came to the police station and offered to stand as sureties for the payment of the debt if he should flee the country and pleaded with the defendants to let him off, but they refused. He deposed further that upon the defendants’ refusal to let him off, he was sent to Nsawam Prison at 1.00 p.m. on that day where he remained until the 22nd April, 1963, when he was brought to court and released on bail in two sureties each in the sum of £G4,000. He stated that he was the sole proprietor and managing director of the Cedar Haulage Services and that he arrived in Accra on the 19th April, 1963, with a view to taking a plane to Tamale the next day in connection with the occurrence of an accident on the Tamale road involving one of his trucks. The plaintiff denied the specific allegations made against him in the affidavit, exhibit B2, and denied that at the time of his arrest he was indebted to the defendants to the amount of £G17,000 or any sum, or that he had sold all or any part of his properties or was immediately ready to flee the country on the 20th April, 1963, to stay away permanently. He described himself as the owner of seven block buildings and properties situated at Accra, Takoradi, Kumasi and Nsawam all valued at about £G67,000, and said that he was the owner of 23 working trucks the minimum value of each of which was £G500, that his net saving was £G1,500 a month, and he produced and showed to the court, marked exhibit F, a copy of a statement of the assets and liabilities of his business as at the end of June 1962, the original of which, according to him, had been submitted to the Income Tax Department. His evidence was further to the effect that the defendants were unable to prosecute their claim against him in suit No. 204/63 in which they obtained the absconding warrant, and that suit was dismissed on the 18th June, 1963, with costs in his favour. He described the actions of the defendants against him as malicious and deposed that he had suffered loss and expense and had been seriously injured in his credit and reputation and had therefore suffered damage. It is well to be noted that although the defendants subjected the plaintiff to a series of questions in cross-examination all relating to whether or not he was indebted to them, they did not attempt in any single question to challenge his denial of the specific charges they had made against him [p.323] of [1963] 2 GLR 316 in the affidavit, exhibit B2. The only question put to him and which in my view is remote from the point is as follows:

“Q. Is it not a fact that some time in March 1963, you told Mr. Hinawi (then manager of the defendant company) that business in Ghana had so badly depreciated that it was your intention to leave Ghana to go and settle in Nigeria?

A. That is utterly incorrect. I never told him a thing like that.”

The defendants gave evidence by their manager who said nothing in his evidence as to the arrest of the plaintiff by the police and his detention on the 20th April, 1963, or by way of justifying their actions in that regard. Further he said nothing about the specific allegations made by the defendants against the plaintiff in exhibit B2 resulting in his arrest and imprisonment at Nsawam Prison or by way of justifying their actions in that regard. His evidence was mainly to the effect that the plaintiff had been indebted to them and he put in evidence, marked exhibit 1, a document executed in their favour by the plaintiff on the 5th March, 1963, and he put in evidence also a number of cheques made in their favour which had been dishonoured.

What I have now to decide is whether (a) the plaintiff has established that he has been falsely imprisoned and if so, whether such imprisonment was caused by the defendants, and (b) whether he has established that the absconding warrant by which he was arrested was obtained by false and malicious representations and that his arrest was malicious. I shall deal first with the question of false imprisonment. What is termed false imprisonment has been defined in Clerk and Lindsell on Torts (11th ed.), p. 269, para. 420 as follows:

“A false imprisonment is complete deprivation of liberty for any time, however short, without lawful cause. ‘Imprisonment is no other thing but the restraint of a man’s liberty, whether it be in the open field, or in the stocks, or in the cage in the streets or in a man’s own house, as well as in the common goale; and in all the places the party so restrained is said to be a prisoner so long as he hath not his liberty freely to go at all times to all places whither he will without bail or mainprize or otherwise’.”

In my view, it is quite clear on the evidence that the plaintiff’s liberty was completely restrained from the time of his arrest at 7.30 a.m. on the 20th April, 1963, until the delivery of him by the police to the court bailiffs at 11.45 a.m. and it is well to be noted that this fact was not in any way controverted or challenged by the defendants.

Further, on the evidence, there is no doubt that his imprisonment was a false one because the basis for his arrest has appeared on the evidence to have no foundation whatsoever, the information upon which the police acted has turned out to be completely untrue, and no lawful excuse has been shown for such arrest. But although the evidence establishes that the plaintiff was falsely imprisoned, the question still remains to be determined whether his imprisonment was caused by the defendants and whether they can be held liable for such imprisonment.

[p.324] of [1963] 2 GLR 316

It is stated in Salmond on Torts (12th ed.), p. 301 that:

“An action for false imprisonment will lie against any person who authorises or directs the unlawful arrest or detention of the plaintiff by a merely ministerial officer of the law. He who sets in motion a merely ministerial officer, such as a constable, has no protection similar to that which is extended to the litigant in a court of justice. If he makes that ministerial officer his agent he is responsible for any arrest or detention so procured or authorised. It is necessary to prove actual direction or authorisation; mere information given to such an officer, on which he acts at his own discretion, is no ground of liability.” There can be no doubt on the evidence to which I need not refer again, and I do find that the arrest of the plaintiff by the police was directed and authorised by the defendants, that the plaintiff’s false imprisonment has been proved, and that the defendants are liable for the plaintiff’s said false imprisonment.

I shall now deal with the claim for malicious arrest. It was held in the case of Daniels v. Fielding1 that an action is maintainable against any person for falsely or fraudulently and maliciously and without reasonable or probable cause making or procuring an affidavit and thereby obtaining a judge’s order for the plaintiff’s arrest, and I have now to consider whether all the ingredients necessary in such an action have been proved.

Having regard first to the affidavit, exhibit B2, there is no denial by the defendants that they filed it and there is no question that they obtained under it an order for the plaintiff ‘s arrest subsequent to which an absconding warrant was issued. To prove the arrest, the plaintiff may have to call the sheriff’s officer. In this case, although the registrar put in evidence the absconding warrant with the bailiff’s certificate of arrest on it, yet it was held by Lord Kenyon in the case of Lloyd v. Harris2 that though the return of the cepi corpus appeared on the writ of capias, yet since there was no evidence of arrest having been made under the writ, the plaintiff was nonsuited. In the case of Petrie v. Lamont,3 however, it was held that proof of the warrant was unnecessary when the defendant had admitted that the arrest took place under the writ. So it was in this case, when the plaintiff sought to call the necessary evidence to prove arrest and detention, the defendants by their counsel submitted that the arrest of the plaintiff on the 20th April, 1963, and his being in custody until the 22nd April, 1963, was not disputed, and I hold that his arrest has therefore been proved.

On the question of the determination of the suit, it has not been denied by the defendants, and exhibit A2 is evidence that the suit No.204/63 upon which the warrant was issued, was on the 18th June, 1963, dismissed with costs for the plaintiff, and the plaintiff’s evidence is that such costs have been paid. [p.325] of [1963] 2 GLR 316

Now had the defendants reasonable or probable cause for procuring and making the affidavit which resulted in the plaintiff’s arrest; were the facts in the affidavit false and malicious? Before making a finding on these important factors I must examine the evidence first, having regard to paragraph 2 of the said affidavit in order to determine whether when the writ was issued and the absconding warrant was obtained, the defendants had a cause of action against the plaintiff. Exhibit 1 which was put in by the defendants and on which they mainly rely shows that as at the 5th March, 1963, the balance due by the plaintiff to the defendants on cement transactions was £G10,150 for which he issued seven post-dated cheques in favour of the defendants, the first of which was to mature on the 30th March, 1963, and the others at the end of the subsequent months.

It is clear, therefore, on exhibit 1 that although there was an existing debt by the plaintiff to the defendants, yet the amount was not recoverable except on the agreed terms, that is to say, when the dates for payments fell due. Now on the evidence of the plaintiff which was not controverted by the defendants and which I do accept, the first cheque which fell due on the 30th March, 1963, was a cash cheque, and when it was presented to the bank for payment they did not refer it to the drawer, but sent it back to be endorsed by the plaintiff so that payment could be made on it. The plaintiff’s evidence is further to the effect that the defendants informed him of that and said that they were sending a bearer to him to endorse on the cheque, but that they never did so, and that suddenly and without any cause, they brought this action against him. Again this important piece of evidence which appears to me to be highly relevant as to reasonable or probable cause was not controverted by the defendants, and I have no reason to disbelieve the plaintiff on those facts.

In these circumstances I am bound to hold that at the time that the defendants brought the suit No. 204/63 against the plaintiff, they had no cause of action whatsoever against him and it is my view that the defendants themselves knew that they had no such cause of action hence they did not prosecute that suit which was dismissed on the 18th June, 1963.

In an action for malicious arrest as in an action of malicious prosecution, the want of probable cause is evidence of malice. Proof that a suit was discontinued was held by Lord Ellenborough in Bristow v. Heywood4 not to be evidence of want of reasonable and probable cause, but in the later case of Nicholson v. Coghill5 where the plaintiff had arrested the defendant on an affidavit of debt for money paid to his use, but did not declare until ruled to do so, and a few days afterwards discontinued the action and paid the costs, that was held to be evidence of malice and the want of probable cause. See also on the point the case of Austin v. Debnam.6

Now by the plaintiff’s evidence which I accept, I hold the view that the falsity of the allegations contained in the latter part of paragraph 3 and

[p.326] of [1963] 2 GLR 316 in paragraphs 4, 5 and 6 of the affidavit, exhibit B2 had been clearly established.

I feel very fortified in so holding because apart from failing to contradict the plaintiff in cross-examination one would have expected that the defendants would have led some evidence purporting at least to show that they in fact had some sort of information by which they were misled as to the alleged sale of the plaintiff’s properties and as to the alleged escape, but that is not the case here. The defendants led and called no evidence whatsoever to support the serious allegations and charges in exhibit B2 and by that alone, in my view, they have shown that they had no probable cause to procure the arrest of the plaintiff and that they were actuated by malice in what they did. In these circumstances I am bound to hold that the contents of the affidavit exhibit B2 have been proved to be false, that malice and want of probable cause on the defendant’s part have been proved and I do find that the plaintiff has proved his claim for malicious arrest.

On the question of damage, I am of the view that although the arrest and imprisonment by the police and arrest under the absconding warrant issued by the court follow up in one trend of events, yet the cause of action that accrued to the plaintiff are distinct, and that the separate claims brought, in one writ are properly maintainable.

In assessing damage in this case, I have had to take into consideration in addition to the restraint of the plaintiff’s liberty and the serious damage to his credit and reputation, the question whether or not the defendants acted bona fide, although quite wrongly. Unfortunately I have not been able to find in their favour that they acted bona fide. I have not been able to understand why in spite of the fact that they knew they could not call any evidence to support their actions in causing the malicious arrest and false imprisonment of the plaintiff and without caring for the consequences, they proceeded spitefully to put him to public disgrace, indignity and disrepute. And I am not a little surprised at how the writ was filed at 10.20 a.m. on the 20th April, 1963, the motion for the absconding warrant filed the same day at 11.00 a.m. and heard a few minutes later, and both these processes served and executed at 11.45 a.m. on the plaintiff, and also as to why the police station should have been used as a forum where the plaintiff should be kept for the purpose of service and execution of these processes on him.

On the evidence the plaintiff is a man of substance. The fact that he is the owner of 23 trucks the minimum value of each being £G500, and the fact that he owns buildings at Nsawam, Takoradi, Kumasi and Accra, all estimated at £G67,000, was not challenged by the defendants, save that the plaintiff agreed to their suggestion that these buildings are not all freehold. Further the evidence establishes that the defendants themselves trusted the plaintiff with properties valued at about £G25,000 and in my view that is some indirect admission by them of the plaintiff’s worth and integrity.

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Having regard to special damage, in view of the evidence of the plaintiff’s monthly income, he could not have suffered more than £G250 specific loss in his business for the three days of his imprisonment and that includes the cost of the retention of counsel to secure his release from prison. I have had also to pay regard to the status of the plaintiff, and the evidence satisfied me that he is a prominent person among the Lebanese in Ghana. His evidence that the news of his arrest began to spread within one hour of his arrest and of the fact that the Lebanese Consul in Accra and other prominent Lebanese businessmen had offered to stand surety for him in the amount had not been challenged or contradicted in any way and I have come to the conclusion that quite apart from the restraint, the plaintiff has been seriously injured in his credit and reputation.

In all the circumstances I award him £G2,000 damages on his claim for false imprisonment, £G2,000 on his claim for the malicious arrest, and £G250 special damages. I award him 350 guineas costs inclusive of counsel’s brief fee of 250 guineas.

DECISION

Judgment for the plaintiff.

K. T.