Osman v Chill (Civil Appeal No. 90 of 1954) [1955] EACA 290 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR HUGH HOLMES J. (Kenya) and CRAWSHAW J. (Tanganyika)

## ALIMOHAMED OSMAN, Appellant (Original Plaintiff) v.

## D. C. HILL, Respondent (Original Defendant) Civil Appeal No. 90 of 1954

(Appeal from the decision of H. M. High Court of Tanganyika, Lowe, J.)

Malicious prosecution—False imprisonment—"Reasonable and probable cause" -Arrest-Warrant of Arrest-Irregular Warrant-Whether void or voidable--Criminal Procedure Code sections 27, 90 and 346-Police Ordinance (No. 51 of 1952), section 44 $(1)$ .

The appellant sued the respondent, a district commissioner, as the officer in. charge of a certain police station for damages for malicious prosecution and false imprisonment. The respondent had perused a file relating to a vehicle: belonging to the appellant which vehicle had run back down a hill and having seen, in the file, statements relating to the defectiveness of the brakes of the vehicle, including a statement from a mechanical engineer who saw the vehicleat the scene of the accident that "the vehicle was not in good order and I made" a report to the owner for repairing the brakes but he could not repair" had a. warrant for the arrest of the appellant issued for mans aughter, as a result of which a police officer executed the warrant and the appellant was, for a short time detained prior to being released on bail. As a result of there being later obtained a report from a qualified expert on motor transport, $X$ , of a report as to the vehicle as at a date subsequent to the decision to arrest the appellant. the proceedings were withdrawn.

The appellant contended that there was no reasonable and probable causefor his prosecution by the respondent and that the report from $X$ should havebeen obtained before the proceedings were instituted.

In connexion with the claim for the alleged false imprisonment, the appellant contended that, if a charge is unjustified and made without reasonable and probable cause, the arrest is also unlawful.

It was discovered that section 90 of the Criminal Procedure Code which: provides: "Upon receiving a complaint and having signed the charge in accordance with the provisions of section 88, the magistrate may, in his discretion, issueeither a summons or a warrant to compel the attendance of the accused person. before a subordinate court having jurisdiction to inquire into or try the offencealleged to have been committed: Provided that a warrant shall not be issued in the first instance unless the complaint has been made upon oath either by the: complainant or by a witness or witnesses" had not been complied with as the magistrate had issued the warrant without a sworn complaint, but the trial judgeconsidered the irregularity to be immaterial because section 27 of the said Code provides: - "Any police officer may, without an order from a magistrate: and without a warrant, arrest $(a)$ any person whom he suspects on reasonable grounds of having committed a cognisable offence; ... ", so that the appellant. could have been arrested without a warrant.

Section 346 of the same Code provides: $-$ "... no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account—(a) of any error, omission or irregularity in the $\ldots$ warrant $\ldots$ (b) $\ldots$ unless such error, omission or irregularity has in fact occasioned a failure of justice: Provided ...."

In his judgment the trial judge drew attention to section 44 (1) of the Police Ordinance which provides: — "Where the defence to any suit instituted against a police officer is that the act complained of was done in obedience to a warrant purporting to be issued by a Judge, a magistrate or a justice of the peace the court shall, upon production of the warrant containing the signature of the magistrate or justice of the peace accept such warrant as prima facie evidence of the due making thereof and upon proof that the act complained of was done in obedience to such warrant, enter judgement in favour of such police officer". The appellant contended that whilst the section protected the actual police officer who executed the warrant, it did not protect the respondent who instigated it.

*Held* (12-2-55).—(1) A prosecutor is not required to test every possible relevant fact before taking action, nor need he ascertain whether there is a defence; he must, before instituting proceedings, ascertain that there is reasonable and probable cause for the prosecution.

(2) In determining the question of "reasonable and probable cause" in an action for malicious prosecution, it is necessary for the court to ascertain what facts were present in the prosecutor's mind when he preferred the charge and the court must then ask itself whether those facts amounted to reasonable and probable cause, other facts being irrelevant. In the instant case the trial Judge had correctly directed himself and the report of $X$ was not relevant.

(3) Semble—Even if a prosecution is actuated by the most express malice, the prosecutor is not liable in an action for malicious prosecution as long as there was reasonable and probable cause for the prosecution.

(4) If proceedings are regular and initiated on reasonable and probable cause, the (4) If proceedings are regular, and in such circumstances, the defendant has a complete answer<br>arrest is also regular, and in such circumstances, the defendant has a complete answer<br>to a claim against him for false impriso

(5) The issue of a warrant of arrest being a matter for the discretion of the magistrate, he, and he alone, is responsible therefor and the respondent could not, thus, be made liable for any error in procedure by the magistrate.

(6) An arrest, legal under section 27 of the Criminal Procedure Code, does not become illegal because a warrant is employed which is subsequently shown to contain<br>a hidden defect, not discernible on its face.

(7) An irregular warrant of arrest is not void but voidable, so that it is valid until it is set aside.

(8) The respondent being a police officer was entitled to the protection of section 44 (1) of the Police Ordinance; that protection was not lost because the actual execution of the warrant was entrusted to another police officer.

Appeal dismissed.

Cases referred to: Hicks v. Faulkner (1878) 8 Q. B. D. 171; Tempest v. Snowden (1952) 1 A. E. 1; Herniman v. Smith (1938) A. C. 303; Christie and another v. Leachinsky (1947) 1 A. E. 567; Painter v. Liverpool Gas Co. (111 E. R. 478).

Dodd for appellant.

Samuels for respondent.

HOLMES, J.—This is an appeal from a judgment of Her Majesty's High Court of Tanganyika at Dar es Salaam dated 7th September, 1954, which found for defendant (the present respondent) with costs in an action wherein the plaintiff (the present appellant) claimed damages against him for false imprisonment and malicious prosecution.

In this action the present appellant alleged that on 9th September, 1952, the respondent, who was district commissioner and officer in charge of police at Songea wrongfully obtained a warrant for the arrest of the appellant on a false charge of manslaughter; that the warrant was duly executed on the instructions of the respondent; that he was detained under arrest for about two hours by

Inspector Malinga, and for a further half-hour while sureties were obtained, before his release on bail. The appellant also alleged that the charge of manslaughter was brought against him maliciously and without reasonable or probable cause.

In his memorandum of appeal the first objection raised by the appellant to the judgment appealed from is that "The learned Judge erred in law and in fact in holding that there was reasonable and probable cause for the prosecution of the appellant by the respondent". The second and third grounds of appeal are, in effect, the same as the first.

This first ground of appeal is vital to the whole case. The decision on it must must be decisive on the claim for malicious prosecution, and in certain events equally decisive of the claim for false imprisonment.

It is therefore convenient to deal first with this question of reasonable and probable cause.

The charge made by the respondent against the appellant in the present case arose out of an accident to one of the appellant's lorries which was carrying 34 passengers. The engine of the lorry stopped near the top of a very steep hill, and its brakes could not prevent it from rolling back down the hill into a ditch. While the lorry was running backwards down the hill, gaining impetus and speed as it went, five passengers, believing their lives were in danger, jumped from the lorry, as a result of which one was killed, and the other four, more or less seriously injured. The accident occurred on 27th August, 1952, and the police opened an inquiry into this fatal accident as it was their duty to do. On 28th August a Case File was opened in the Charge Register of the Songea Police Station. On the instruction of the respondent Inspector Malinga opened the Inquiry as Investigating Officer on 2nd September, on which date he obtained a report from Mr. Palmer, Assistant Mechanical Engineer to the Colonial Development Corporation, and took a statement from the driver of the lorry, who had already made a statement on 28th August, in which he had stated that "the vehicle was not in good order, and I made a report to the owner for repairing its brakes, but he could not repair". Between the 2nd and the 9th September further statements were taken from the driver, ticket collector, turnboy of the vehicle and the mechanic who was responsible for the repairs to the appellant's vehicles. On 9th September the respondent, on examination of the file, which contained all these statements, considered that there was sufficient evidence, that the death of the person killed was due to the omission of the appellant to maintain the vehicle in proper repair and ordered Inspector Malinga, to obtain a warrant from the magistrate on a charge of manslaughter and to arrest the appellant, telling the inspector at the same time to inform the magistrate that he considered that it was a proper case for bail. This was done, and the respondent does not deny that it was he that initiated the prosecution of the appellant for manslaughter, though it was Inspector Malinga who obtained the warrant, executed the arrest, and took the appellant to the magistrate for the execution of the bail bond, before releasing him. The admission to bail was done according to the magistrate's instructions, endorsed on the warrant. The case against the appellant was withdrawn by the respondent when it came before the magistrate on 17th October. the respondent having already informed the appellant that he intended to withdraw 'the case on 11th October. Both parties agree on the law, as stated in Salmond on Torts p. 621 and Clerk and Lindsell on Torts p. 803 on the conditions of liability for damages for malicious prosecution. It must be established by the plaintiff—

- (1) that the proceedings have been instituted by the defendant: - (2) that they have terminated in favour of the plaintiff; - (3) that the defendant acted without reasonable or probable cause: - (4) that he acted maliciously.

The appellant did not suggest that the learned Judge had misdirected himself on any of these points, though he does point out correctly that the Judge erroneously appeared to think that the onus of proof lay on the defendant to show that he had reasonable and probable cause, in saying on page 15 of the judgment that the defendant had discharged that onus. This error, which was in the appellant's favour, did not affect the final decision in any way. In the instant case the respondent admitted the existence of the first two conditions, which the plaintiff had to establish, to succeed in his action for malicious prosecution. He asserted however that he had reasonable and probable cause to initiate the prosecution. against the appellant on 9th September. On this point also the Judge quite properly interpreted the law in the judgment appealed against. He quotes and follows Hawkins J. in *Hicks v. Faulkner* 1878 (8 Q. B. D.) p. 171 in his definition of legal and probable cause in law, a definition, which has since been universally followed. In the comparatively recent case of *Tempest v. Snowden* in the Court of Appeal (A. E. R. 1952. 1 p. 4). Denning L. J. says: "In my opinion, to determine the question of reasonable and probable cause, the Judge must first find out what were the facts as known to the defendant, asking the jury to determine any dispute on that matter, and then the Judge must ask himself whether those facts amounted to reasonable and probable cause". This is exactly what the Judge did in the instant case. There is no dispute on the fact, that in this case the respondent gave instructions for the arrest and prosecution for manslaughter of the appellant on 9th September, after he had had the case file containing Palmer's report and the statements, that had been taken up to that date. The file was produced in court at the trial as an Exhibit and a copy appears on pp. 119-126 of the Record. It is from this file that the court was able to judge what facts. were present to the mind of the respondent when he directed Inspector Malinga to make the charge of manslaughter on 9th September. The learned trial Judge says at page 15 of the judgment appealed from (page 151 of the Record), that he looked at these statements and Palmer's report, which satisfied him that the defendant (respondent) did not act unreasonably. The learned Judge therefore acted exactly as Denning, L. J., said a Judge should act in similar circumstances, and no fault can be found in law in his arriving at the affirmative decision, at which he did arrive, on the first issue in the case "Was there reasonable and probable cause for the prosecution?" Nor can this Court find any error in fact in the finding of the learned Judge that the respondent had reasonable and probable cause for initiating the prosecution. Palmer's report, made immediately after the accident, shows defects in brakes, which had no effect whatever on the rear wheels, and states that the hand-brake was completely ineffective. The driver confirmed this on 28th August when he stated, "I applied foot brake but failed. The hand-brake was not working, since I was given the vehicle about two months ago. The vehicle was not in good order and I made a report to the owner for repairing the brakes, but he would not repair." On 2nd September he repeated that the brakes would not work. In a long statement made on 6th September the driver stated that he had reported the defect of the hand-brake to the owner in August, who told him to adjust it himself. He did so, but it still did not work. It did not go to the mechanic. He also stated that there were defects in the engine which he reported to the owner and were inefficiently repaired, that since July the engine was using too much oil, and its power decreased. He reported this, and was told it would be repaired after his return from the trip on which the accident occurred. Similar evidence was also given by the ticket collector and the turnboy,

and there was also evidence that the appellant had no system for the routine checking of his vehicles when they went on safari. In my opinion these facts, which were those operating on the respondent's mind, when he initiated the prosecution on 9th September undoubtedly furnished a reasonable and probable cause for the charge against the appellant, and the learned trial Judge was right in so holding. It is true that subsequently on 17th October the respondent withdrew the case. He states that he did this because early in October it had been suggested to him to get a further report from a certain Brother Simeon who was said to be a qualified expert on motor transport. This was done by Inspector Malinga on 7th October, and it was on the basis of this report, which stated that the engine was perfect and had climbed Pyramid Hill on top gear, that the respondent withdrew the case. Counsel for the appellant maintained in appeal that the respondent should have got a report from Brother Simeon before initiating proceedings, and that if he had he would not have made the charge. According to the judgment the respondent did not even know that Brother Simeon was an expert in motor vehicles early in September. Moreover it is not at all certain that if Brother Simeon had seen the vehicle at the scene of the accident as Mr. Palmer had done, his report would have been the same, as evidence of the fact that the bus could climb Pyramid Hill in top gear in October seems to be quite irrelevant to the question of whether it could climb Ruanda Hill in bottom gear on the 27th August, which the proved facts show, it could not do. In any event the opinion of Brother Simeon is irrelevant in the present case. What the Judge had to base himself on in forming his opinion of whether there was reasonable and probable cause for preferring a charge of manslaughter against the appellant in the instant case, were the facts which were present to his mind when he did so. This is the law, as expressed by Lord Atkin in Herniman v. Smith (1938 A. C. p. 305) and followed by Denning, L. J., in Tempest v. Snowden, "The facts upon which the prosecutor acted should be ascertained. In principle other facts upon which he did not act appear to be irrelevant. When the Judge knows the facts operating on the prosecutor's mind, he must then decide whether they afford reasonable or probable cause for prosecuting the accused." Brother Simeon's report is therefore completely irrelevant so far as the question of malicious prosecution is concerned, as it was not and could not have been present to the mind of the respondent, when he directed the prosecution. In the passage of the judgment in the same case of Herniman v. Smith quoted in the judgment appealed from the Judge held, "It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and proper cause for a prosecution." On 9th September when the respondent acted he had present to his mind an expert's report, Mr. Palmer's and the statements of relevant witnesses, which in the opinion of the learned trial Judge were sufficient to justify his action. He had no duty to go further, or to ask for the opinion of another expert of whose existence he was then ignorant. In my opinion therefore the judgment appealed from was right in law and in fact in holding that there was reasonable and probable cause for the prosecution for manslaughter initiated by the respondent against the appellant on 9th September, 1952. This being the case it is unnecessary to go into the fourth condition of liability, namely malice, the appellant having failed to establish the third condition of liability. As Denning, L. J., says in the case of Tempest v. Snowden (already quoted), "It has to be remembered that even though a prosecutor is actuated by the most express malice nevertheless he is not liable so long as there was reasonable and probable cause for the prosecution".

There remains the claim for false imprisonment, which forms the subject of the fourth and fifth paragraphs of the Memorandum of Appeal. The examination of this question is greatly facilitated, once it is established that, there was reasonable and probable cause for the prosecution. In the passage of the case

of Christie v. Leachinsky (1947) 1 A. E. R. p. 567, which learned Counsel for the appellant referred to at the trial, and is quoted in the judgment appealed from. Scott, L. J., says, "Arrest is the first step in a proceeding against a suspected person on a charge which was intended to be judicially investigated". Presumably Counsel for the plaintiff referred to this passage to show that if the charge was unjustified and made without reasonable and probable cause, as he alleged to be the case in the present instance, the arrest which formed part of the unjustifiable proceedings, would also be wrongful. This is a logical argument, but it carries with it its converse. If the proceedings are regular and initiated on a reasonable and probable cause, the arrest, which forms part of them, is also regular. This would have been a complete answer to the appellant's claim for false imprisonment as set forth in the plaint, which does not allege any irregularity in the warrant, nor was the appellant aware of any, until after the opening of the defendant's case before the court, when the learned trial Judge discovered from the magistrate who gave evidence for the defence, that he had not observed the proviso to section 90 of the Tanganyika Criminal Procedure Code, in issuing the warrant without a sworn complaint. The learned Judge in the judgment appealed from, held that this irregularity was immaterial, as under section 27 of the Criminal Procedure Code either the respondent or Inspector Malinga, as police officers, could have lawfully arrested the appellant without warrant. This is true, but if, as in the present case, the respondent did elect to proceed by warrant, he can in no way be responsible for the error in procedure committed by the magistrate in its issue. In any event he is not responsible for the actual issue of the warrant. Section 90 of the Criminal Procedure Code enacts that "Upon receiving a complaint ... the magistrate may in his discretion either issue a summons or a warrant to compel the attendance of the accused person". It is true that Inspector Malinga applied for a warrant on the respondent's instructions, but the actual issue of the warrant is a matter solely in the discretion of the magistrate, and is the magistrate's own act for which no one else can be responsible. It is however the police officer who is responsible for executing the warrant when obtained, and it is this fact which caused the appellant to change his whole case, on the issue of the arrest and consequent false imprisonment, before this Court in appeal. In his plaint and at the trial he put forward the claim for false imprisonment as ancillary to that of malicious prosecution. The arrest was wrongful because the proceedings of which it was part were wrongful. In appeal he divorces the claim for the arrest entirely from the claim for false imprisonment. Irrespective of whether the charge was justifiable or not, the arrest in itself was wrongful because it was executed on the basis of an irregular warrant. This is a contention, which he puts forward for the first time in the fifth paragraph of his memorandum of appeal, and which his learned counsel relied on principally before this Court. In my opinion in reply to this contention one might well answer as the learned trial Judge, did, that an arrest legal under Section 27 of the Criminal Procedure Code without warrant cannot become illegal because a warrant is employed, which is subsequently shown to contain a hidden defect undiscernible on its face. Indeed if Counsel for the appellant is right and on account of the irregularity in the warrant it is null and void, and inexistent in law then the arrest was without a warrant and is certainly lawful under the provisions of section 27. I am however inclined to think that the irregular warrant is not void, but voidable, and is valid till it is set aside. Otherwise the provisions of section 346 C. P. C. would be difficult to understand, where it is enacted that "no finding, sentence or order passed by a court of competent jurisdiction shall be revised or altered on appeal or revision on account of any error, omission or irregularity on the complaint summons, warrant, charge, etc., which implies that in certain cases the irregular warrant will be treated as valid, which would be impossible if it were in fact inexistent.

In the judgment appealed from the learned Judge also calls attention to section 44 (1) of the Tanganyika Police Ordinance No. 51 of 1952 which makes it clear that no action can succeed against a police officer who acts on a warrant purporting to be signed by a magistrate, if the police officer acted in obedience to such warrant in effecting the arrest. To this objection to his claim for false imprisonment against the respondent, who is a police officer, learned Counsel for the appellant answers by quoting the case of Painter v. Liverpool Gas Company (English Reports 111 p. 478), which holds that a warrant, though it would have protected the officer who executed it, was no justification to the Company, who had not acted in obedience to it, but had put it into force as parties. Hence, argues learned Counsel, in the present case Inspector Malinga, who physically obtained and executed the warrant in obedience to its terms, may be protected, but the respondent who instigated the proceedings is not. Learned Counsel seems to forget that the respondent is a police officer himself, and he could have<br>obtained and executed the warrant himself. If he had done so learned Counsel seems to admit that he would have been protected by section 44 (1) but because he entrusts this task to a subordinate officer he is not according to learned Counsel. This seems quite illogical and approaches a reductio ad absurdam. Moreover if one reads the judgments in *Painter v. Liverpool Gas Company* one sees it has no analogy at all with a case such as the present one, as their Lordships in those judgments take the pains to point out. In fact the greater part of those judgments might well have been cited by the respondent in his own favour. By the Statute establishing the Liverpool Gas Company it was given powers to recover sums due to it for gas supplied by a distress warrant obtained from a magistrate. In Painter's case the collector for the Company had applied for a warrant without issuing a summons to the debtor to appear before the magistrate, and executed the warrant directly against the debtor by selling his coaches, horses, and harness. This was then the case of a distress warrant the last act in a judicial procedure, very different from a warrant of arrest issued as the first step in a regular procedure issued for the purpose of bringing the party before the Justice to enable his case to be heard, as in the present case. The issue of the warrant by the magistrate for the arrest of the appellant in the instant case was a purely ministerial act, whereas in Painter's case as the judgments show the magistrate was exercising a judicial jurisdiction in issuing the distress warrant, for as Lord Denman pointed out in his judgment the warrant itself refers to a conviction and the summary procedure permitted by the statutes implies a prior judicial conviction by the magistrate that the amount is due, combined with a warrant for the execution of that decision on the goods of the debtor. On the general principle that a person cannot be condemned without being heard the court held that the conviction and consequential warrant for execution were illegal as the debtor had not been summoned to appear to be heard in his own defence. The defendant Company in *Painter's case* pleaded an analogy in their case with that of a police officer, who is protected, if he executes a magistrate's warrant, even if that warrant has been issued illegally. In the instant case the appellant pleads the same analogy in the converse. But in Painter's case the court refused to see any such analogy. Lord Denman says in his judgment "But there the question is whether the warrant, though improperly issued, will protect these parties. A warrant is a justification to officers, because they are not to canvass the legality of the process they have to execute, for it would be absurd that an officer charged with the execution of a warrant should pause, and consider, whether it was regularly issued or not. But here the parties relying on the warrant are not officers." Littledale, J., in his judgment says, "In the case of malicious injuries, punishable by summary conviction under Statute 7 and 8 Geo. IV c.30, a Justice is empowered, on a charge being made before him, to issue his warrant for apprehending the party charged, without previous summons; but that is the nature of a criminal proceeding, and the warrant issued

only for the purpose of bringing the party before the Justice: The warrant here is in the nature of an execution". Patteson, J., in the same sense says, "The remaining question is, whether the present defendants can justify under the warrant. The reason why such a warrant though irregular would be a protection to an officer is that he would not be entitled to set up his private opinion against that of the Justice as to the goodness of the warrant. He is bound to obey it. and is therefore protected in doing so. The company were not so bound". Finally Williams, J., agrees and says, "As to the other point, the case of an officer executing process or a warrant bears no analogy to this. It would be wild work if the officer were entitled to scan the warrant delivered to him, for the purpose of ascertaining whether it was regular or not under the circumstances of the case. But here the persons justifying are parties that allege that money was due to them, and that the warrant was executed by their authority for the purpose of satisfying their demand. The argument on this point therefore, which depended wholly on the supposed analogy between the present case and that of an officer, fails."

The present respondent is an officer, and the court itself says that the analogy between a case such as this and the case of Painter v. Liverpool Gas *Company*, which the appellant seeks to draw, does not exist. On the other hand all the four learned Judges agree, that a police officer such as the present respondent is not only lawfully entitled to execute a warrant of arrest with the object of bringing the accused man before the comptent court to defend himself, even if it is irregular, but that he is bound to do so.

It is clear then that in the instant case the respondent had reasonable and probable cause to charge the appellant with manslaughter; that he initiated the resultant proceedings in a proper and legal way in instructing Inspector Malinga to obtain a warrant from the magistrate for the arrest of the appellant; that he was in no way responsible for the irregularity in the warrant of which he was ignorant; and that in any event he, as a police officer, was amply protected in executing the warrant under section 44 (1) of the Police Ordinance. I can find no error in law or in fact in the judgment appealed from.

In my opinion therefore, the appeal should be dismissed.

SIR BARCLAY NIHILL (President).—I have had the advantage of reading the judgment prepared by my learned brother, Mr. Justice Holmes. I am also of the opinion that the judgment of the trial court was free from error, and there is nothing I can usefully add to the exhaustive review of the case made by my brother.

The appeal is dismissed with costs.

CRAWSHAW, J.-I concur with the judgment of Mr. Justice Holmes and agree that the appeal be dismissed with costs.