Claude Samuel Gaynor v Cyril Robert Cowley (1970/HP/802) [1971] ZMHC 4 (25 June 1971)

CLAUDE SAMUEL GAYNOR v CYRIL ROBERT COWLEY (1971) ZR 50 (HC) HIGH COURT BARON J 25th JUNE 1971 (1970/HP/802) Flynote I Tort 15- False imprisonment and malicious prosecution - Distinction - Ingredients and onuses. Headnote The defendant and plaintiff were partners in a business of building contractors. The plaintiff was given the use of a Datsun vanette both for the work of the partnership as well as his private use. Following a dispute 20 between the partners over the return of the ■ vanette, the defendant made a false report to the police that his vanette had been stolen, and later added to it that the plaintiff was seen heading towards Kasama. The plaintiff was arrested by the police. Following representations by the plaintiff's lawyer that the dispute between the parties was of a civil 25 nature the plaintiff was released from custody. In an action by the plaintiff for false imprisonment and malicious prosecution: Held: ■ (i) In an action for false imprisonment it is necessary for the plaintiff to prove nothing but the imprisonment itself; it is then 30 for the defendant to discharge the onus of justifying it. ■ (ii) In an action for malicious prosecution the onus is on the plaintiff to prove his cause of action. (iii) To found an action for malicious prosecution the test is not whether the criminal proceedings have reached a stage at which 35 they could be correctly described as a prosecution but whether they have reached a stage at which damage to the plaintiff results, whether the complaint has been made to a magistrate or to the police. ■ I Cases cited: 40 (1) Mohamed Amin v Jogendra Kumar Bannerjee [1947] AC 322. (2) Golap Jan v Bholonath Khettrye (1911) ILR 380C. 880. (3) Casey v Automobile Renault of Canada Ltd (1965) 54 DLR (2d) 600. (4) Danby v Beardsley (1880) 43 LT 663. I M Folotiya, Folotiya & Co., for the plaintiff. 45 A W W Cobbett - Tribe, Peter Cobbett - Tribe & Co., for the defendant. 1971 ZR p51 BARON J Judgment Baron J: This is an action for damages for malicious prosecution, false imprisonment and defamation; during argument, after the evidence has been completed, the plaintiff abandoned defamation as a cause of action. The plaintiff, an engineer, the defendant, a company director, and 5 one other were at the material times working in partnership in the business of building contractors; it was the intention of the partners to operate the business through a limited company and to this end the necessary steps were taken, but at the relevant time the company had not yet been registered and the business was operating under the name of Kafue 10 Construction and Engineering. Some time in February, 1970, a few months after the business had commenced and at a time when the gross receipts on its contracts had been some K8,000 (there is no evidence as to the profits at this stage) the firm bought a new Datsun vanette to enable the plaintiff to move from site 15 to site and to transport materials. The defendant was at some pains to show that the payment for this vehicle was made by him personally, while the plaintiff contended that the cheques were drawn on the defendant's personal bank ■ ■ I ■ ■ account only because it was through this account that the business was being operated. This particular point of conflict was 20 one of many which were totally irrelevant to these proceedings, although they would no doubt be highly relevant in other pending proceedings concerning disputes between the parties arising out of the business; the fact remains - and this is common cause - that the vehicle was registered in the name of Kafue Construction and Engineering and was intended to 25 be, and was, the property of the partnership. The vehicle was continuously in the custody of the plaintiff; he took it home at night, and the defendant in evidence agreed that the plaintiff was authorised to use it for his private purposes as well as for business purposes. In about July, 1970, a dispute arose between the parties. It is both 30 unnecessary and undesirable to consider this dispute in these proceedings save to the extent that the nature of that dispute and the claims made by each of the parties helps to explain their conduct. The defendant and the third partner purported to pass a resolution dismissing the plaintiff from the service of the company, although it appears that the company had not 35 at that time been registered; each party made financial claims against the other. The defendant ordered the plaintiff off the building sites. On one occasion he and a friend tried to take the keys of the vanette from the plaintiff; the plaintiff says he was physically assaulted, while the defendant admits only to"unpleasantness". On the 10th July Messrs. Shamwana 40 & Co., at that time acting for the defendant, wrote to the plaintiff requesting him to hand over all property belonging to the "company" which he held. On the 15th July Messrs. Folotiya & Co. replied to this letter making certain proposals designed to resolve the disputes between the parties, and containing this I paragraph: 45 ■ ■ ■ "We are also instructed to inform you that our client will in the meantime keep the vehicle and any other assets of the Company, presently in his possession." 1971 ZR p52 I ■ ■ BARON J The contents of this letter were discussed by the defendant and his solicitors at their offices, probably on about the 14th July. The defendant said that he had not actually seen the letter but had had the contents read out to him, the interview having been before certain incidents which 5 had taken place during the days immediately preceding his report to the police on the 17th. In answer to a question by the court the defendant said that he understood the above quoted paragraph to mean that the plaintiff intended to take possession of the vanette and never give it back. I find 10 this evidence very difficult indeed to accept. Even if it could be accepted that the defendant himself, without advice, might have placed such a construction on this paragraph, I am not prepared to accept that his solicitor did so. And even for a layman, I regard this construction as totally unreasonable, particularly a man who describes himself as a 15 director and who was in charge of the business administration of this partnership. Although the dates of the following events were not specifically stated, they can be worked out by reference to the report made by the defendant to the police on the 17th July. Early in July an incident took 20 place as a result of which the defendant told the plaintiff that his association with the company was terminated and that he should leave the building site. The plaintiff refused to do so at that time but eventually left about ten or fifteen days later, taking the vanette with him. The vanette was normally kept at No. 3 Jan Nel Street where the partnership 25 had its offices and where the plaintiff was living (it appears that the plaintiff had a flat or room in the house, which was shared by other people). The defendant says that he went to the office on three successive mornings but the vehicle was not there and on the third morning, which was the 17th July, he reported the matter to the police. The defendant 30 says that he reported the vehicle as being missing and did not use the expression stolen, and I will deal with this particular aspect of the matter more fully later. On the evening of the 17th the defendant went back to No. 3 Jan Nel Street and saw that the plaintiff was in his room but that the vehicle was still not outside the house; he says that the plaintiff did 35 not see him and that he did not approach the plaintiff because he did not wish to have anything to do ■ ■ ■ ■ with him. The defendant says that he spoke to other occupants of the house who told him that the vehicle had not been kept there for the last three days. This last piece of evidence is of course admissible only to the extent 40 that it may be relevant to explain the defendant's subsequent behaviour; it is not admissible as to the truth of whether or not the vehicle had in fact been kept at the premises during the time stated. I find it highly significant however that none of this was put to the plaintiff in cross - examination, and when asked whether he could explain this omission 45 the defendant said that he had not told his solicitor of these facts. Once again I find this very difficult to accept; the fact that the vehicle was not where it ought to have been for three days prior to the crucial report to the police, a report which goes to the root of these proceedings, is ■ ■ 1971 ZR p53 BARON J obviously of fundamental importance and something which the defendant would hardly be likely to forget throughout all the interviews he must have had with his solicitor during the pre-trial period. Furthermore, this evidence of the defendant is not consistent with his subsequent behaviour. In his report of 17th July the defendant made no mention of any suspect, 5 but is recorded as having said that the vehicle had been stolen between 2000 hrs on the 16th and 0630 hrs on the 17th; save that he says that he reported the vehicle as missing and not stolen, the defendant agrees that his report is accurately recorded. On the next morning he went back to the police, and of this I interview he said in evidence: 10 I "I told them what I had discovered, and also said that I suspect the plaintiff knows where the vehicle is." Yet this report was recorded as follows: ". . . the accused in this case is known to the plaintiff. His name is said to be C. S. Gaynor who used to work in the same construction; 15 the complainant has been to the station, and stated that the vehicle disappeared when the suspect left work and was the person who was using the vehicle and he stays at No. 3 Jannel Street, ■ but complainant checked at the place and found the accused was not at the house." 20 As a result of this report the police circulated the following telegraphic message to all stations: ■ "Ref CR 3838/70 stolen M/V Datsun Pickup Blue. 1970 model. Reg. No. EU 7407. Stolen between 16/7 2000 ■ and 17/7 0630 Jannel Street. Chas No. 234504. EN No. 900468. It is being driven by a 25 Mr C. S. Gaynor who was once working under Kafue Construction and is believed to be heading for Kasama if seen arrest and inform this formation. Vigil please circulate." Before closing the plaintiff's case Mr Folotiya invited Mr Cobbett - Tribe to accept that the docket (put in as Exhibit 7) was proof of the fact 30 of the reports having been made as they appear on the face of the docket, and of the actions taken by the police officers as recorded. I understood Mr Cobbett - Tribe to accept the docket as evidence on this basis and I recorded his agreement in those terms. Subsequently, however, Mr Cobbett - Tribe indicated that he did not intend that agreement to cover 35 the precise words as recorded in Exhibit 7 but only the substance, and specifically he did not intend to agree that the defendant had used the word "stolen". Accepting this qualification, it is nonetheless clear that the defendant personally signed Exhibit 6, which is a form headed "Theft of motor vehicle" and contains two other references to "stolen". And an 40 admission made by the defendant seems to me to be conclusive on this point; the defendant said: ■ ■ ■ "I made a criminal complaint to the police; I did this because the vehicle was the property of the company, and no individual member had the right to deny the company the use of the vehicle." Viewing 45 the evidence as a whole I am quite satisfied that whatever might have been the precise words used the defendant made reports to the police on two successive mornings, the substance of which was that I 1971 ZR p54 BARON J the vehicle had been stolen from the address, and during the period stated, and that in the second report he informed the police that the person he suspected of having stolen it was the plaintiff and that he believed the plaintiff was heading for Kasama. It is obvious that the 5 police could not have obtained this last piece of information from anyone but the defendant. It is also quite clear that if the defendant's evidence in this court, namely that he saw the plaintiff in his room on the evening of the 17th, was true, his report at 8.00 a.m. the following morning that he thought the plaintiff was heading for Kasama I ■ ■ ■ was false (unless of course 10 this information was obtained in a manner and from sources of which there is no evidence whatever). The defendant in evidence agreed that it was implicit in the letter of the 13th July that the plaintiff was making claims; he admitted also that he did not, until after the plaintiff was arrested, make any 15 explanations to the police concerning the background. It is relevant to note also that on the 17th July the plaintiff's solicitor wrote a further letter to the defendant's solicitor and it is date - stamped by the defendant's solicitor as being received on that day. This letter contains more detailed proposals for the settlement of the dispute, one of which was that the plaintiff 20 should continue to give technical and managerial advice to the builders on the site and continue to occupy the flat and make use of the vehicle as before. There is no evidence as to whether the defendant was made aware of this letter prior to his second report to the police on the morning of the 18th, although I would have expected him to be so aware prior to the 25 arrest of the plaintiff at 4.00 p.m. on the afternoon of Monday the 20th. However, it may well be that he was not so aware, and I do not base any findings on the contents of the letter of the 17th July. My findings of fact are (1) that the defendant made reports to the police on the 17th and 18th of July the cumulative effect of which was 30 that a motor vehicle belonging to Kafue Construction and Engineering had been stolen by the plaintiff, who was believed to be heading for Kasama; (2) that to the knowledge of the defendant these reports were false; (3) that in making these reports the defendant was seeking to use the police to I recover possession of the vehicle. 35 The text writers and the older cases draw a sharp distinction between false imprisonment and malicious prosecution. This distinction is based on the difference between ministerial and judicial proceedings; as the learned author of Clerk & Lindsell on Torts (12th Ed.) puts it at para. 557: ■ ■ ■ "Legal proceedings may be either ministerial or judicial. In case 40 of the former, the party employs the machinery of the law entirely at his own risk and is directly responsible for the consequences. In case of the latter, he appeals to the discretion of a judge or magistrate, which is thus interposed, and the steps thereupon taken result immediately from the exercise of that discretion and 45 not from the act of the party." The distinction, however, is not total. As the learned author of Salmond on Torts (15th Ed.) says at p. 548 when speaking of malicious prosecution: ■ 1971 ZR p55 BARON J "the tort clearly has some affinities with defamation and false imprisonment but there are also differences." And the same sequence of events may found an action for false imprisonment up to one point, and thereafter an action for malicious prosecution, the standard example being I the case where a man is arrested and then 5 taken before a magistrate who thereupon remands him: after the remand the action, according to the cases must be on the basis of malicious prosecution because at that point the discretion of a judicial officer was interposed. Perhaps the most important aspect of the distinction, however, lies 10 in the ingredients of the two actions and the onuses in each case. In an action for false imprisonment it is necessary for the plaintiff to prove nothing but the imprisonment itself; it is then for the defendant to discharge the onus of justifying it. On the other hand, in an action for malicious prosecution the onus is on the plaintiff to prove the four well known 15 ingredients. ■ I will deal first with the action for false imprisonment. Mr Folotiya cites Halsbury's Laws of England (3rd Ed.) Volume 38 para. 1268: ■ "A private person is liable if he unlawfully detains another, or if he gives him in charge to a police officer who thereupon arrests 20 him, or if he causes a police officer to arrest or detain the other, or if he participates in ■ the arrest or detention." Mr Folotiya submits that in the present case the defendant caused a police officer to arrest or detain the plaintiff, or alternatively that the conduct of the defendant amounted to a participation in the arrest or 25 detention. Mr Cobbett - Tribe relies on the statement in para. 559 of Clerk & Lindsell (12th Ed.): ■ ". . . it is enough if he makes a charge on which it becomes the duty of the constable to act. But it is quite a different thing if a party simply gives information, and the constable thereupon acts 30 according to his own judgment." ■ Mr Cobbet - Tribe argues that what the defendant did in the present case was simply to give information and thereafter the police acted according to their own judgment. In support of his submission, Mr Folotiya argues that the defendant 35 caused or participated in the arrest because the report that the vehicle had been stolen was false to his knowledge; Mr Folotiya argues that because of this falsity the police officers could not exercise a real discretion and the defendant must therefore be responsible for the action they took based on the false information he gave them. I recognise the force of this 40 argument, but it seems to me to be more appropriate in an action for malicious prosecution than in one for false imprisonment, in the latter case it seems to me to be irrelevant whether the report was deliberately false or inadvertently false. In either case the issue is whether the defendant "made a charge on which it became the duty of the constable to act" 45 or simply "gave information on which the constable acted according ■ to his own judgment". ■ ■ 1971 ZR p56 I BARON J Mr Cobbett - Tribe submits that what the defendant did in the present case was simply to give information. He submits in effect that the police before arresting the plaintiff should have made further inquiries and satisfied themselves as to his guilt independently of the defendant's 5 report. I find some difficulty in appreciating precisely what it is suggested the police should have done apart from what they did in fact do; the police received a report, signed by the managing director of the company alleging to own it, that a vehicle had been stolen, and a second report was then made giving the name of the person alleged to have stolen it 10 and saying that he was believed to be heading for Kasama. To suggest that it is not the duty of the police in these circumstances to seek to apprehend the person named is quite unrealistic. A man who sets ministerial proceedings in motion in this way "employs the machinery of the law entirely at his own risk and is I directly responsible for the consequences." 15 It is pertinent to quote also a passage from the judgment of the Privy Council, delivered by Sir John Beaumont, in Mohamed Amin v Jogendra Kumar Bannerjee (1) (a case to which I will refer again later) at p. 300: ■ I ■ "No man can be heard to say that he lodged a false complaint maliciously without any justification in the belief that, though supported by his own oath, the magistrate would have no difficulty in detecting its falsity and in dismissing it without calling on the accused." The falsity or maliciousness of the complaint is not, of course, relevant 25 in an action for false imprisonment nor is there any question of an oath in the present case; however, the sentiments expressed in this passage seem to me to apply with equal force to a man who lodges a complaint with the police and then suggests that they should have no difficulty in detecting its falsity and dismissing it without calling on the person named. In 30 the result, I am satisfied that the defendant caused or participated in the arrest of the plaintiff, and the claim based on false imprisonment succeeds. The essentials of an action for malicious prosecution are set out by the various text writers and need no repetition. Save as to the question 35 whether there was prosecution, these essentials are clearly satisfied in the present case; the defendant did not have reasonable and probable cause in that he did not have a genuine belief based on reasonable grounds that a criminal offence had been committed, and he was actuated by malice in that he had an improper motive, namely desire to obtain 40 through the machinery of the police some redress which should have been sought by civil process. The only question is whether there had been a prosecution, and on this issue I was inclined during the argument to accept Mr Cobbett - Tribe's submission, based on a number of ancient English cases, that there had not. However, my attention was not drawn to 45 Mohamed Amin v Jogendra Kumar Bannerjee (1), in which the Privy Council adopted a more flexible - and in my humble opinion a more realistic - approach to the matter than did the English courts in the nineteenth century. ■ ■ ■ BARON J Mohamed Amin's case (1) was an appeal from India, but the matter did not turn on any provisions peculiar to Indian legislation. The action was one for damages for malicious prosecution, which "is part of the common law of England, administered by the High 1971 ZR p57 I Court at Calcutta under its letters patent" - per Sir John Beaumont at p. 330. The appeal 5 was from a decision of the Indian Court of Appeal upholding the decision of the trial judge, following Golap Jan v Bholonath Khettry (2), that a complaint to a magistrate which was referred by him for inquiry and report under the provisions of s. 202 of the Indian Penal Code did not constitute "proceedings" for the purposes of an action for malicious 10 prosecution. Golap Jan's case (2) had been followed by some courts in India but not by others, and for this reason, and because it did not "lay down any principle which may have served as a guide to conduct in other cases", the Privy Council thought I it right to examine the principle on which the case was based. 15 Sir John Beaumont, at p. 330, said: ■ ■ "The foundation of the action (for malicious prosecution) lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must 20 prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible), and that he has suffered damage." The expression "(if that be possible)" is highly significant. If "proceedings" is to be construed in technical or formal sense this phrase would be 25 meaningless, since it is clearly possible to prove that such proceedings terminated in some way or other. The phrase is explicable only on the basis that "proceedings" has a wider meaning. For instance it is stated in Salmond, 15th Ed. citing Casey v Automobiles Renault of Canada Ltd (3), that an information laid before a magistrate, but withdrawn before a 30 summons or warrant is issued, is nevertheless sufficient to found the action; but Clerk & Lindsell, 12th Ed. para. 1697, takes the opposite view. This edition was, of course, published before Casey (3) was decided, and it is interesting to note once again that such recent cases as there are in this branch of the law are tending to break out of the strait - jacket rules 35 laid down in the old English cases. Sir John Beaumont, in Mohammed Amin's case (1) said this at p. 331: ■ ■ ■ "To found an action for damages for malicious prosecution based on criminal proceedings the test is not ■ whether the criminal proceedings have reached a stage at which they may be correctly described 40 as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the courts in India in saying that the mere presentation of a false complaint which first seeks to set the criminal law in motion will 45 per se found an action for damages for malicious prosecution. If the magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been nothing ■ BARON J 1971 ZR p58 I ■ but an unsuccessful attempt to set the criminal law in motion, and no damage to the plaintiff results. But in this case the magistrate took cognizance of the complaint, examined the complainant on oath, held an inquiry in open court under s. 202 which the plaintiff 5 attended, and at which, as the learned judge has found, he incurred costs in defending himself." It seems to me entirely logical to put a complaint to a magistrate and a complaint to a police officer on the same footing. The latter is just as much the setting in motion of the criminal law as is the former, and 10 indeed in circumstances such as we are considering in the present case the complaint to the police is intended to lead to proceedings before a magistrate. This passage seems to me to apply with equal force in either case. Suppose for instance the defendant had explained the circumstances fully to the police and then asked that the vehicle be circulated as having 15 been stolen or that the plaintiff be charged with theft, and the police had declined to proceed because (as indeed they subsequently decided when they learned the true facts) the matter was in their view a civil one; then, no doubt, there would have been nothing but an unsuccessful attempt to set the criminal law in motion and no damage to the plaintiff 20 would have resulted. But this was not the case, the police did in fact act on the defendant's false report and damage to the plaintiff resulted. The test laid down by the Privy Council has therefore been satisfied. It is relevant to note also that Clerk & Lindsell at para. 557 in the passage quoted above refers to legal proceedings as being either ministerial 25 or judicial; thus it seems clear that an arrest by a police officer is a criminal proceeding for the purposes of an action for malicious prosecution. Winfield on Tort, 7th Ed. at p. 706 says: ■ ■ ■ "If I merely tell a policeman that I have had a particular thing stolen from me and that it was last seen in X's ■ possession, and the 30 policeman without further instruction on my part makes inquiries and arrests X, it is not I who have instituted the prosecution. I certainly set a stone rolling, but it was a stone of suspicion only." and he cites Danby v Beardsley (4). The text continues: ■ "Similarly, if a man does no more than tell the story of his loss to a 35 judicial officer, such as a magistrate, leaving him to determine whether the facts amount to a felony, he does not maliciously procure the magistrate to issue a warrant for his arrest ... But where the story told is known by the teller to be false, the Judicial Committee has held in an Indian appeal that the teller is liable. 40 The peculiar frequency of such lying charges in India was a special ground for this decision, but its general reasonableness adds to its persuasive authority here." Equally in Zambia, it is necessary and proper to have regard to circumstances obtaining in the country today. Here it is not a question of the 45 peculiar frequency of lying charges, but the presence of a comparatively inexperienced police force. ■ ■ BARON J Winfield concludes this passage thus: "So too, if A goes before a magistrate and positively asserts (whether on oath or not, and whether orally or in 1971 ZR p59 I writing) that he suspects B of having committed a crime, and the magistrate thereupon issues a warrant for B's arrest, A has commenced a 5 prosecution, for he has done much more than give a mere narration of facts from which the magistrate may or may not infer that B has committed a crime." In my judgment, if in this example the positive assertion is made to a police officer, who thereupon arrests B without a warrant, A has equally 10 commenced a prosecution. In the result the plaintiff's claim succeeds on this ground also. The plaintiff has succeeded on the basis of both false imprisonment and malicious prosecution, but I think it would be unrealistic to attempt to split up what was in fact one course of action. The result was the arrest 15 and detention of the plaintiff, and I would ■ have awarded the same amount if I had found for the plaintiff on only one ground. The plaintiff was arrested at about 4.00 p.m. on a Monday afternoon in Cairo Road; he was then handcuffed and was in custody at the police station for two or three hours before his solicitor secured his release. 20 He has suffered in his reputation, and has ■ suffered also anxiety and indignity. There will be judgment for the plaintiff for K500 and costs. Judgment for the plaintiff ■