COREA v. PIERIS

• Citation: NLR10V321
• Court: Supreme Court (Sri Lanka)
• Date: 02 October 1907
• Case Number: NLR10V321

321

[IN REVIEW.]

Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice Wood Renton.

COREA v. PIERIS.

D. C, Kurunegala, 2,740.

Malicious prosecution-Want of reasonable and probable cause-Malice Power of Supreme Court to take new evidence-Admissibility of evidence of counsel appearing in the case-DOLUS malus-Point taken for the first time in review-Courts Ordinance (No. 1 of 1889), s. 40-Civil Procedure Code, s. 773.

In an action for malicious prosecution the plaintiff must prove that the defendant acted maliciously; it is not sufficient to prove mere absence of reasonable and probable cause.

WOOD RENTON J.-

It is incumbent upon the plaintiff to prove malice as well as want of reasonable and probable cause. The absence of reasonable and probable cause may be so glaring as to give rise to a presumption of malice. But malice is a distinct and necessary element in the constitution of the cause of action in an action for malicious prosecution.

Under section 40 of the Courts Ordinance the Supreme Court has power to take new evidence at the hearing of an appeal.

There is no law which prohibits counsel appearing in a case from giving evidence on behalf of their clients.

The Supreme Court will not entertain for the first time at a hearing in review a point which was not taken in the Court below or in appeal.

The principle laid down in " The Tasmania "l followed.

HEARING in review of the judgment of the Supreme Court reported in 9 N. L. R. 276, where the facts are fully stated.

H. A. Jayewardene (with him H. J. C. Pereira), for the plaintiff, appellant.

Van Langenberg, for the defendant respondent.

Cur. adv. vult.

October 2, 1907. HUTCHISON C.J.-

The appellant is the plaintiff in an action for malicious prosecution of the plaintiff by the defendant. The facts are fully set out in the judgment of the District Judge, who gave judgment for the plaintiff. On the hearing of the appeal from that judgment, Lascelles A.C.J. and Middleton J. thought that it was desirable to take the evidence

Foot Notes:

¹ 15 App. Gas. 225.

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of a witness whom the defendant had wished to call at the trial, but whom the District Judge had refused to allow to give evidence. The refusal was on the ground that the witness was one of the defendant's counsel. But neither chapter XI. of the Evidence Act nor any other law or practice makes that a ground for rejecting a witness' evidence; and the Supreme Court has power under section 40 of the Courts Ordinance to admit new evidence; and the evidence of this witness was therefore rightly taken.

The witness, who is an advocate practising in Colombo, deposes that shortly before the prosecution, of which the plaintiff complains, was instituted, the defendant came to him in Colombo, accompanied by a man called Usubu, and told him that the plaintiff and others had gone to one of his estates in the Kurunegala District and raided the bungalow and smashed furniture and removed things. The witness questioned Usubu, who he understood had gone to the estate after the row and had seen broken furniture. He was told by the defendant that Usubu was an old servant, and that Meera Lebbe, who was said to have been eye-witness of the alleged offence, had been with him for forty years, and that he relied on them; he then advised the defendant to bring a charge in the Police Court. A few days afterwards the defendant saw him again with a letter from his Kurunegala proctor and a copy of Meera Lebbe's evidence before the Magistrate, the cause of the visit being that the Magistrate was reluctant to issue process against the plaintiff until the defendant's evidence was recorded, and that the proctor wanted the defendant to go to Kurunegala for that purpose. The witness appeared for the defendant in the subsequent proceedings before the Magistrate at Kurunegala and Chilaw in the investigation of the charge against the plaintiff.

In my opinion the evidence taken at the trial did not justify a finding that the defendant acted maliciously, and, when supplemented by the evidence taken on the hearing of the appeal, it seems to me to show that he believed that the charge against the plaintiff was well founded.

Upon this hearing in review the appellant took an entirely new point, to which no reference was made in the District Court or at the appeal. He contends that, even if the defendant is not liable for having maliciously and without reasonable and probable cause instituted the prosecution, he is liable for the act of his servant, Joseph Pieris, who was the real originator of the prosecution. There is, however, no statement in the plaint that Joseph Pieris prosecuted the plaintiff maliciously or otherwise, or that in doing so he was the defendant's agent, or that the defendant was liable for his act; and no issue was settled or evidence taken on any of those points. In the present action therefore this contention cannot be maintained.

I think that the decision under review should be confirmed, and that the plaintiff should pay the costs of this hearing in review.

323

I do not consider it necessary to add much to the judgment I have already delivered in this case, which, I think, should be affirmed and the appeal dismissed.

As regards the liability of the defendant for the act of his servant, Joseph Pieris, it is sufficient to say that this is a point which was not raised until this hearing in review; that there was no evidence directed to show that the institution of criminal proceedings came within the scope of his employment, or that he acted maliciously or in a way from which it may be inferred he so acted.

No issues were settled on these points, and no findings have been arrived at.

I think, therefore, it is not competent for this Court at the present stage to consider this entirely new point, in accordance with the ruling of Lord Herschell in" The Tasmania,"¹ where that learned Judge is reported to have said that a Court of Appeal ought only to decide in favour of an appellant on ground put forward there for the first time, if it be satisfied beyond doubt that it has...