YEBOAH AND OTHERS v. BOATENG VII [1963] 1 GLR 182

DIVISION: IN THE SUPREME COURT

DATE: 25TH FEBRUARY, 1963

BEFORE: SARKODEE-ADOO, CRABBE AND AKUFO-ADDO JJ.S.C.

CASES REFERRED TO

(1) Khoury v. Tabbara (1953) 14 W.A.C.A. 246

(2) Gilchrist v. Gardner (1891)12 N.S.W.L.R. 184; 8 N.S.W.W.N.S. 2

(3) Hicks v. Faulkner (1878) 8 Q.B.D. 167; 51 L.J.Q.B. 268; 46 L.T. 127, C.A.

(4) Herniman v. Smith [1938] A.C. 305; [1938] 1 All E.R. 1; 107 L.J.K.B. 225, H.L.

(5) Glinski v. McIver [1962] A.C. 726; (1962] 2 W.L.R. 832; [1962] 1 All E.R. 696, H.L.

(6) Tempest v. Snowden [1952] 1 K.B. 130; [1952] 1 All E.R. 1; [1951] 2 T.L.R. 1201, C.A.

(7) Tims v. John Lewis & Co., Ltd. [1951] 2 K.B. 459; [1951] 1 All E.R. 814; [1951] 1 T.L.R. 719, C.A.

(8) Abbott v. Refuge Assurance Co., Ltd. [1962] 1 Q.B. 432; [1961] 3 W.L.R. 1240; [1961] 3 All E.R. 1074, C.A.

(9) Johnstone v. Sutton (1786) 1 T.R. 510, H.L.

(10) Wicks v. Fentham (1791) 4 T.R. 247, H.L.

(11) Ocansey v. Mensah Guinea (1929) F.C. ‘26-’29, 315

(12) Goddard v. Smith (1704) 6 Mod. 261; 87 E.R. 1007

(13) Broad v. Ham (1839) 5 Bing (N.C.) 722; 132 E.R. 1278

(14) Ravenga v. Mackintosh (1824) 2 B. & C. 693; 107 E.R. 541; 2 L.J.K.B.(o.s.) 137

(15) Hewlett v. Cruchley (1813) 5 Taunt. 277; 128 E.R. 696

(16) Abrath v. North Eastern Rly. Co. (1886) 11 Q B.D. 443

NATURE OF PROCEEDINGS

APPEAL from a judgment of Acolatse J. delivered in the High Court, Accra, on the 8th February, 1960, awarding the plaintiff damages for false imprisonment.

COUNSEL

Asafu-Adjaye for the appellants.

A. Dove for the respondent.

[p.185] of [1963] 1 GLR 182

JUDGEMENT OF CRABBE J.S.C.

This is an appeal by the defendants-appellants from the judgment of Acolatse J. in an action for malicious prosecution in which he entered judgment for the plaintiff-respondent for damages amounting to 750 guineas, inclusive of costs.

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. Before dealing with the evidence I should first examine a few of the relevant authorities on the subject and then state the legal position as I understand it.

The prosecution in this case was commenced by way of preliminary investigation before a district magistrate, who committed the respondent to stand his trial at the Criminal Assizes. But before the trial actually took place the Attorney-General exercising his powers under section 58 of Criminal Procedure Code,1 entered a nolle prosequi and this resulted in the discharge of the respondent. Section 58 of Criminal Procedure Code, 1951, states as follows:

“In any criminal case, and at any stage thereof before verdict or judgment, and in the case of a preliminary enquiry, whether the accused has or has not been committed for trial, the Attorney-General may enter a nolle prosequi, either by stating in Court or by informing the Court in writing that the Crown intends that the proceedings should not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts”

But notwithstanding the words in this section that “such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts,” 1 think that it is now fairly well settled that for the purposes of an action for malicious prosecution the entry by the Attorney-General of a nolle prosequi would be sufficient termination of the criminal proceedings in favour of the accused person. In Malek Khoury v. Kamel Tabbara2 Foster-Sutton P. examined the English case of Goddard v. Smith3 and a few other English cases in conflict [p.186] of [1963] 1 GLR 182 with the Australian case of Gilchrist v. Gardner4 and declared his preference for the Australian case. In stating the rationale of the principle which appealed to him the learned President said:5 “I prefer the reasoning in Gilchrist v. Gardner to that in Goddard v. Smith and I am of the opinion that in a case where criminal proceedings have been terminated by the Attorney-General or other law officer entering a nolle prosequi justice requires that it be held to be an exception to the general rule that the plaintiff must prove, in an action for malicious prosecution, that the proceedings terminated in his favour, and that proof of the entry of a nolle prosequi in a criminal matter is such a termination of the proceedings in the plaintiff’s favour as to entitle him to bring an action for malicious prosecution. It seems to me that to hold otherwise would amount to a denial of justice. By so holding no injustice is done to the defendant in such a case because it is always open to him to prove reasonable and probable cause, and if he succeeds in so doing the plaintiff’s action will fail.”

The onus of proving lack of reasonable and probable cause lies on the plaintiff, and the question whether or not there is such cause is for the judge to decide. What then is the meaning of reasonable and probable cause? The well-known definition of reasonable and probable cause contained in the celebrated judgment of Hawkins J. in Hicks v. Faulkner6 which was approved by the House of Lords in Herniman v. Smith7 is as follows:

“I should define reasonable and probable cause to be, 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 ordinarily 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.”

In the Herniman case Lord Atkin said he knew of no better statement of the issue than that in the words of Hawkins J.

But in the very recent case of Glinski v. McIver,8 Lord Devlin made another attempt at giving the meaning of reasonable and probable cause. He said:

“It means that there must be cause (that is, sufficient grounds; . . . ) for thinking that the plaintiff was probably guilty of the crime imputed; Hicks v. Faulkner((1878) 8 Q.B.D. at p. 173). This does not mean that the prosecutor has to believe in the probability of conviction; Dawson v. Vansandau ((1863) 11 W.R. 516). The prosecutor has not got to test the full strength of the defence; he is concerned only with the question of whether there is a case fit to be tried. As Dixon, J., put it, the prosecutor must believe that ‘the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted’; Commonwealth Life Assurance Society v. Brock ((1935) 53 C.L.R. at p. 382). Perhaps the best language [p.187] of [1963] 1 GLR 182 in which to leave the question to the jury is that adopted by Cave, J., in Abrath v. North Eastern Ry. Co. (1883) 11 Q.B.D. at p. 443: ‘… did (the defendants) honestly believe in the case which they laid before the magistrates ?”

There would be no reasonable and probable cause unless the defendant honestly and genuinely believed that the prosecution of the plaintiff was justifiable.

“Honest belief in guilt is no justification for a prosecution if there is nothing to found it. His belief may be based on the most flimsy and inadequate grounds, which would not stand examination for a moment in a court of law. In that case he would have no reasonable and probable cause for the prosecution. He may think he has probable cause, but that is not sufficient. He must have probable cause in fact.” Per Lord Denning in Glinski v. Mclver.9 The law does not, however, require the defendant to believe that the was guilty; it is enough if he believes the proceedings to be justifiable: Tempest v. Snowden.10 In order to determine the issue of reasonable and probable cause the judge must first find out the facts as the defendant knew them at the time and then decide whether those facts amounted to reasonable and probable cause.

The test whether the defendant had reasonable and probable cause is objective and is determined by the court on the evidence before it: Tims v. John Lewis & Co. Ltd.11 per Lord Goddard C.J. The yardstick is always the conduct of the reasonable man in the particular circumstances of the case. In Abbott v. Refuge Assurance Co., Ltd.,12 Upjohn L.J. stated the propositions which are now settled in regard to the objective test. He said.. “The reasonable man would take the following steps: (i) He or his advisers would take reasonable steps to inform himself of the true state of the case; Abrath v. North Eastern Ry. Co. (1883) 11 Q.B.D. 440. (ii) He or his advisers would finally consider the matter on admissible evidence only, Meering v. Graham-White Aviation Co., Ltd. (1919) 122 L.T. 44. (iii) In all but the plainest cases, he would lay the facts fully and fairly before counsel of standing and in the relevant branch of the law and receive the advice that a prosecution is justified. This is implicit in the several cases which I shall mention in a moment. In addition, of course, the defendant must bona fide accept and act on the advice and, though that is part of the subjective test, it cannot be wholly removed from consideration at this stage. . . .

If the plaintiff can prove that the defendants have failed to take any of these steps, then that will be evidence from which the judge may infer absence of reasonable and probable cause.”

The absence of reasonable and probable cause is in itself sufficient evidence of malice in cases where it is such that the jury may come to the conclusion that there was no honest belief in the charge made. If, however there was such an honest belief, the plaintiff must prove malice by some independent evidence. Malice means not only spite or ill-will on the part of the defendant but any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice. A plaintiff who proves malice but not want of reasonable and probable cause cannot succeed in his claim, because malicious motives may co-exist with a genuine belief in the guilt of the accused. “From the most express malice, the want of probable cause cannot be implied”: Johnstone v. Sutton.13 The fact that the plaintiff was acquitted in the prosecution is not in itself evidence of malice.

The question whether the defendant was actuated by malice is one of fact. [His lordship then dealt with the evidence set out in the headnote and continued:] It was not disputed in this case that the appellants instituted criminal proceedings against the respondent and that the Attorney-General entered a nolle prosequi which terminated the proceedings against the plaintiff. Although this was not an absolute discharge because it still left the respondent to be indicted afresh on the same facts, I am inclined to accept the broad interpretation which is sometimes put upon “favourable termination of the prosecution.” that the expression means not that the accused has been acquitted, but that he has not been convicted. It is enough if the plaintiff has been acquitted purely on some technical ground (Wicks v. Fentham),14 or if the charge fails because no evidence is given or if the plaintiff is discharged for lack of evidence (Ocansey v. Mensah Guinea)15. I agree entirely with the reasons given by Sir Foster Sutton P. in Malek Khoury v. Kamel Tabbara16 for preferring the decision in Gilchrist v. Gardner17 to that in Goddard v. Smith18 and I am satisfied that the discharge by means of a nolle prosequi entered by the Attorney-General in this case terminated the proceedings in favour of the respondent.

The most important issue to determine in this appeal is whether the defendants instituted the proceedings without reasonable and probable cause. The onus was on the respondent to lead sufficient evidence from which the court could infer that the defendants never had sufficient or any grounds for prosecuting him. At the trial the respondent did no more than tender in evidence a certified true copy of the proceedings of the preliminary enquiry before the district magistrate (exhibit C); the police station diary (exhibit E); and the affidavits sworn to by the defendants (exhibit F).

[p.189] of [1963] 1 GLR 182

The facts contained in exhibits C, E and F were not disputed by the appellants, and in those circumstances it was for the trial judge to decide himself from the undoubted facts whether the prosecution of the respondent by the appellants was without reasonable and probable cause.

Thus in Glinski v. McIver19 Lord Denning said:

“there are many cases where the facts and information known to the prosecutor are not in doubt. The plaintiff has himself to put them before the court because the burden is on him to show there was no reasonable and probable cause. The mere fact of acquittal gets him nowhere. He will therefore refer to the depositions which were taken before the magistrate: or he may refer, as here, to the statements taken by the police from the witnesses: and he will argue from thence that there was no reasonable or probable cause. In such cases the judge should leave no question to the jury. He should take the undoubted facts and information and decide on them himself. If, on considering them, he finds that there was no want of reasonable and probable cause, he should dismiss the claim without more ado as the judges did in Davis v. Hardy ((1827) 6 B. & C. 225), Blachford v. Dod ((1831) 2 B. & Ad. 179) and Bradshow v. Waterlow & Sons Ltd. ([1915] 3 K.B. 527) and as the judge should have done in Herniman v. Smith ([1938] 1 All E.R. 1). If he finds there was an absence of reasonable and probable cause, likewise he should say so and leave only malice to the jury as the judge did in Huntley v. Simpson ((1857) 2 H. & N. 600). Channell, B., put it quite simply when he said ((1857), 2 H. & N. at p. 604): ‘In cases of this kind, when the facts are not disputed, it is for the judge to say whether they show a want of reasonable and probable cause.’”

In addition to the undisputed facts referred to earlier in this judgment the respondent said under cross-examination that he had, previous to his prosecution, warned the appellants and others who were his stool tenants against paying tributes or dues to the Adontenhene without the consent of himself or of his representatives. For disregarding this warning the appellants appeared before an arbitration at the Ahenfie upon a complaint that they had offended the respondent. The arbitration was presided over by the Krontihene. An award was made against the appellants and they were made to apologise to the respondent and to pacify him in accordance with custom.

In his judgment the learned trial judge referred to exhibit E which is a letter dated the 14th December, 1957, addressed to the Adontenhene and then said: “There is no allegation in exhibit E that the plaintiff extorted the fees from each defendant by means of threats, to wit, that if each failed to pay him the said fees he would eject each from his Hwehwee land.” With respect to the learned trial judge I think he misdirected himself on this piece of evidence, because an allegation of extortion was made in exhibit E. It is true, however, that the affidavit sworn to on the 14th January, 1958, by the first appellant on behalf of himself and the other appellant contains no particulars of the threats used by the respondent. [p.190] of [1963] 1 GLR 182

In my view, the fact that the appellants persisted in the prosecution of the respondent after the police had informed them that the result of investigation had shown that no criminal offence had been committed by the respondent is not by itself sufficient evidence of malice or lack of reasonable and probable cause. The respondent must prove that the appellants had no honest belief in the case they brought against him, or that they believed him to be innocent.

As regards the vital issue of reasonable and probable cause the learned trial judge made the following crucial and unambiguous findings:

“I find that from the evidence as to what took place at the Ahenfie that the defendants apologised and paid the fees willingly to the elders who sat on the Omanhene’s complaint. There were no threats used as contained in the particulars of the offence charged against the plaintiff and I therefore hold that in prosecuting the plaintiff under the circumstances revealed in the evidence that the defendants acted without reasonable and probable cause. The conduct of the defendants was outside the definition of reasonable and probable cause as defined by Hawkins J. in Hicks v. Faulkner.”

On the issue of malice the learned judge considered himself justified on the evidence in coming to the conclusion that in prosecuting the plaintiff the defendants acted maliciously. He then went on to say as follows: “In my opinion it is quite open that malice could be inferred from the set of circumstances in the conduct of the defendants as to whether there was reasonable or probable cause.” This opinion is a little too obscurely expressed, but if by that the learned trial judge meant that he could infer malice from the absence of reasonable and probable cause then I find myself in agreement with him.

In this appeal several grounds of appeal were filed with the notice of appeal, but counsel for the appellants addressed the court on two main points, namely, that the appellants had reasonable and probable cause for prosecuting the respondent and that they acted without malice. It is therefore necessary in the first place to consider whether the respondent proved that the appellants failed to take any of the three steps stated by Upjohn L.J. in Abbott v. Refuge Assurance Co., Ltd.20 The charge which the appellants made against the respondent was brought under section 290 (1) of Criminal Code.21 This section reads, “Whoever extorts any property from any person by means of threats shall be liable to imprisonment for five years.” The nature of the threat contemplated by section 290 (1) is explained in section 303 of the Criminal Code, in the following terms, “‘Threat’ when used with reference to extortion, does not include a threat of criminal assault or harm to the person threatened.” For a prosecution to succeed under section 290 (1) it must be shown that something in the nature of force, threat or compulsion was used by reason of which the victim parted with his property to the offender, and [p.19] of [1963] 1 GLR 182 short of any physical force or compulsion it is sufficient if the offender to arranges matters or so acts that the compulsion is of that sort which is short of any physical force or compulsion it is sufficient if the offender so usually called force of circumstances. There can be no compulsion if the victim parts with his property by his own volition or under a process recognised by law.

The appellants were assisted in the prosecution by counsel who was consulted by them after the police had declined to start proceedings against the respondent. There can be no doubt that the appellants were found guilty of offending the respondent at an arbitration and they were ordered to pacify the respondent in accordance with custom. In his evidence under cross-examination the first appellant who appeared to be leader of the appellants said: “I confirm the evidence in my deposition that ‘In an arbitration the person who is found guilty must pay some pacification. Rum is provided to seal the matter.”’ In spite of the first appellant’s awareness of this native custom, and no doubt the other appellants also knew it, he swore to an affidavit in, which he made allegations which should form the foundation of a charge or charges against the respondent. This affidavit is, in my view, a very important piece of evidence in this case because it provides clear evidence of the facts which operated on the minds of the defendants at the time of the prosecution. The full text of the affidavit is as follows:

“I, Opanin Kwasi Yeboah, Headman of Fwefwe (Yao Tenkorang) within the Kwahu State of the Eastern Region of Ghana, for myself and on behalf of Kwasi Yentumi and Opanin Kofi Osei, herein above named make oath and say as follows:

1. That we have been unlawfully extorted by the Omanhene of Kwahu, in the person of Nana Akuamoah

Boateng VII, on or about a month ago.

2. That the cause of action is that there is a secondary school at Abetifi, which was so made by the knowledge consent and concurrence of all the inhabitants of Abetifi.

3. That as finance is concerned and as maintenance is also concerned it was agreed in a meeting at Abetifi, that we complainants go to our respective villages to ask voluntary financial assistance.

4. That as a result we approached the inhabitants of Abetifi and those who were willing did contribute their best against the maintenance of the secondary school.

5. That the Omanhene of Kwahu, who must have promoted education in Kwahu, has by our utter surprise taken offence of our troubles to make the voluntary collections has therefore put us into unlawful money exaction namely: Kwasi Yeboah £G6 4s., Kwasi Yentumi £G4 5s., Kofi Osei, £G4 11s.

6. That we fail to see where the offence lies to justify such unlawful money exaction and therefore make this affidavit in support of our complaint for police action in this action.”

[p.192] of [1963] 1 GLR 182

It is significant that this affidavit omits any reference to the arbitration and the customary pacification which is described therein as “unlawful money exaction.” According to native custom pacification in the particular circumstances of this case, unless it is waived, follows a finding of guilt, and in my view any violent words used by the respondent to express his indignation at the appellants’ conduct were irrelevant. By disregarding the warning of the respondent the appellants must have known that they had rendered themselves liable to ejectment from the land belonging to the respondent’s stool unless they pacified the occupant of the stool. The appellants themselves admitted that the arbitration was held publicly at the Ahenfie in the presence of several people; they did not dispute that if they were found guilty the respondent would be entitled to pacification. In the circumstances I find it difficult to understand what reasonable and probable cause the defendants might have for prosecuting the respondent after he had demanded pacification. In Halsbury’s Laws of England (3rd ed.), Vol. 25, p. 360, para. 700, this observation is made, “. . . where he knew that the acts on which the prosecution was founded were done openly and bona fide in assertion of legal right, there is in general no reasonable and probable cause.” In my view the appellants knew that the payment of the moneys was lawful according to custom, and I am satisfied that any belief they entertained in the guilt of the respondent was false and groundless. “It would be monstrous to hold,” said Erskine J. in Broad v. Ham,22 “that one satisfied of the innocence of the accused should still be held to have reasonable and probable cause for preferring a groundless charge.” It was argued by counsel for the appellants that the appellants sought the advice of counsel who actually prosecuted the respondent on their behalf. Counsel submitted that the appellants are all illiterate farmers and that by seeking counsel’s opinion on their case they had acted with the caution and prudence of a reasonable man. The case in support of this submission is Ravenga v. Mackintosh.23 In that case Bayley J. said:

“I accede to the proposition, that if a party lays all the facts of his case fairly before counsel, and acts bona fide upon the opinion given by that counsel (however erroneous that opinion may be) he is not liable to an action of this description.”

In Glinski v. McIver24 the defendant, a detective-sergeant, was enquiring into a conspiracy to defraud. He arrested the plaintiff on a warrant made out in a wrong name, but later the plaintiff was released. After the defendant had taken legal advice the plaintiff was re-arrested on a fresh warrant. In due course the plaintiff was acquitted, and later brought an action for damages for false imprisonment (his arrest on the first warrant) and malicious prosecution. It was decided at the trial that there was no reasonable and probable cause for the prosecution. On appeal to

[p.193] of [1963] 1 GLR 182 the House of Lords it was held that there was not a shred of evidence that the defendant had failed to disclose to the solicitor and counsel all relevant facts, or falsified such facts; and the defendant having acted on advice received from the solicitor, a proper foundation for honest belief in the plaintiff’s guilt had been established. In the course of his judgment Viscount Simonds said:25 “It appears to me that, just as the prosecutor is justified in acting on information about facts given him by reliable witnesses, so he may accept advice on the law given him by a competent lawyer. That is the course that a reasonable man would take and, if so, the so-called objective test is satisfied.” In my judgment the present case would have fallen within the principle established by the two cases of Glinski v. McIver and Abbott v. Refuge Assurance Co., Ltd. had the appellants placed all the relevant facts before their solicitor. There is no evidence of the exact instructions which they gave the solicitor, but it is clear from the affidavit sworn to by the first appellant that they concealed from him that (1) an arbitration was held, (2) they were found guilty for disobeying the Omanhene’s warnings, and (3) the moneys they paid were pacification to the Omanhene. It seems to me, therefore, that the defendants failed to lay the facts fully and fairly before counsel and that the opinion of counsel was therefore not well-founded. In Hewlett v. Cruchley26 the headnote reads:

“In an action for a malicious prosecution, it is no answer that the defendant was encouraged in what he did by the opinion of counsel, if the statement of facts was incorrect, or the opinion ill-founded.” It was further submitted by counsel for the appellants that the fact that the district magistrate found that the appellants had established a prima facie case was some evidence of reasonable and probable cause. I entirely disagree. The liability of tile appellants depended upon whether they knew that the charges they preferred against the respondent were groundless. As Cave J. pointed out in Abrath v. North Eastern Rly. Co.27

“If I go before magistrates with a case which appears to be good on the face of it . . . while all the time I know that the charge is groundless, then I should not have reasonable and probable cause for the prosecution.”

It is not sufficient in itself to establish a reasonable or probable cause merely by proving that the plaintiff was committed for trial or even that he was convicted by a court of first instance but was subsequently acquitted and discharged on appeal: see Herniman v. Smith.28 In my view the learned trial judge applied the correct test in this case, and I am satisfied that there is ample evidence to justify his conclusion that the appellants acted without reasonable and probable cause. [p.194] of [1963] 1 GLR 182

The nature of the damage which the respondent suffered was pleaded in his statement of claim, but it was not denied. However, in his evidence under cross-examination he elaborated upon it as follows, “I suffered damages in my reputation by the prosecution against me in my position as the paramount chief. It is against customary law.”

There is no doubt in my mind that the prosecution brought by the appellants was one likely to damage the fair fame and dignity of a paramount chief.

For the reasons which I have given I think that the decision of the trial judge was right. The appeal must therefore be dismissed.

JUDGMENT OF SARKODEE J.S.C.

I agree.

JUDGMENT OF AKUFO-ADDO J.S.C.

I also agree.

DECISION

Appeal dismissed.

J. D.