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WEST AFRICAN COURT OF APPEAL, SIERRA LEONE
3RD, 4TH AND 14TH DECEMBER, 1951
 VIII WACA 323
LEWEY, J.A., BEOKU-BETTS AND ROBINSON, JJ.
C. ZIZER for Appellant.
OTTO I. E. DURING (with him C. B. Rogers Wright) for Respondent.
TORT AND PERSONAL INJURY:- Intentional tort – Malicious prosecution – Ingredients to be proved by Plaintiff in order to succeed – Mis-reception of evidence not fatal if other admissible evidence suffices — Defendant an administrator in an official capacity – Protection afforded by section 6 of the Administration of Estates Ordinance (Cap. 72) considered
CHILDREN AND WOMEN LAW:- Women and Justice Administration – Widow – Prosecution arising from report of widow to estate administrator/accused person – Report made to police by accused as well as subsequent acts when deemed as constituting malicious prosecution – Relevant considerations thereof
The following judgment was delivered:
This is an appeal from the learned Chief Justice Sierra Leone, who found in favour of the plaintiff-respondent on a claim for malicious prosecution against the defendant appellant, awarding J131 18s. 8d. special damages and £100 general damages.
One, Momodu Allie, died on 22nd January, 1948, leaving a large estate by will. The executors of the will renounced and the defendant-appellant, who at the time held the official office of Master and Registrar of the Supreme Court and Official Administrator, was made Administrator of the Estate. He took out Letters of Administration with will and codicil annexed on 10th March, 1948. The respondent is a son of the deceased Momodu Allie and a beneficiary under the will. The appellant made no inventory of the personal estate until March, 1950, but when, about June, 1948, he was looking for money for current estate matters, the widow Ajah Fatmata, told him that there was an Avery Scale belonging to the estate which was used by the local cattlemen at a fee for weighing cattle. The scale was also claimed by the respondent. It was worked by a single balance weight which was kept in a cigarette tin. The weight was usually kept in the widow’s house, but when it was being used anyone could be delegated to have charge of it and collect the fees. On the 29th June, 1948, one Masinankay was in charge of the weight and the respondent, passing by, demanded it from him and went away with it. The widow was told, and she gave instructions that the appellant should be informed. The appellant made a report to the police, who went to the respondent’s house. The respondent handed the weight over, but he was arrested and taken to the police station on a charge of theft of the weight. I think it is fair to say that the appellant insisted on a prosecution because the police would only proceed after he had signed the charge sheet. The appellant instituted the prosecution.
The next day, 30th June, 1948, the Magistrate heard the witnesses and convicted the respondent of larceny. The respondent appealed to the Supreme Court, where the conviction was quashed. Thus the criminal prosecution terminated in respondent’s favour.
There are two other ingredients which a plaintiff has to prove in order to succeed in a claim for malicious prosecution :
(1) That the prosecution was instituted maliciously; and
(2) that the defendant acted without reasonable and probable cause.
It must be remembered in this case that the appellant was acting in his official capacity as Official Administrator and the learned Chief justice found himself “quite satisfied from the evidence that at all material times the defendant (i.e. appellant) had good reason for believing that the weight formed part of the estate which he was administering and did not belong to the plaintiff (respondent) .” But in spite of those findings, the Court below did find against the appellant because, after carefully weighing the evidence, it came to the conclusion that the appellant, not content with leaving the matter entirely to the police to prosecute or not, as they thought fit, had signed the charge sheet himself and also, and this is most serious, had procured, or tried to procure, witnesses at the trial to give false evidence.
This evidence chiefly centred round one Momodu Jalloh, alias Kabala. The Chief justice in his judgment said:
“ This witness gave his evidence in a straight forward manner,”
but unfortunately, lower down in his judgment, he seems to rely to a certain extent on some remarks which Kabala addressed to the world in general as he was leaving the Law Courts after the appeal had been allowed.
Those remarks were overhead by the respondent who was following him down the steps, and it was because of those remarks that the respondent got in touch with Kabala and also with two other persons who had given evidence before the Magistrate. The words used by Kabala “ that dog man wanted me to get people’s child into trouble, but God has freed him today ,” were inadmissible because they were hearsay, but the words themselves, without the knowledge to connect them to anything, were meaningless. It happened that the respondent had the knowledge to put two and two together and he then began his investigations. I do not think that the whole of Kabala’s later evidence can be damnified because the reason why the respondent got in touch with Kabala was wrongly admitted in evidence.
The learned Chief justice tried out the case most carefully, and painstakingly weighed and measured the evidence. There was ample evidence on which he could come to the conclusion on the facts, as he did, that “ some of the false evidence given by Masinankay at the time of the larceny case was given at the defendant (appellant’s) instigation, and that the defendant (appellant) also attempted to induce Momodu Jalloh, alias Kabala, to give false evidence to support Masinankay’s story.” Having accepted that finding, as I do, I also accept that the prosecution was malicious. It follows that malice must necessarily be inferred if a prosecution is instituted and witnesses suborned to give false evidence to ensure a conviction-all bona fides has gone.
There remains the question of whether the appellant, in instituting the malicious prosecution, acted without reasonable and probable cause. It is said in the case of Abra v. N.E.R. Company (1) that the burden is on the plaintiff to prove that the defendant did not take reasonable care to inform himself of the true state of the case and that he did not honestly believe the case which he prosecuted. And again, in the case of Herniman v. Smith (2), the definition of “ reasonable and probable cause” by Hawkins, J., in Hicks v. Faulkner (3), at page 171, as “ 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 a position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed “ was approved. In view of those authorities, and a great many others cited to us, the problem has to be seen. The evidence as a whole shows that the appellant, a butcher, was a son of the deceased; this scale was used by the butchers very frequently to weigh their meat; it was a semi-public utility in constant use at a fee; the scale could not be used without the weight; there had been quarrellings between respondent and appellant concerning the estate; the scale had not been formally claimed by the appellant for the estate as no inventory had been made, and there was no real proof of theft without the false evidence; the actual ownership of the scale, as between the estate and the respondent, is not yet decided. Further, the appellant rushed into the prosecution recklessly-everything, except the proceedings before the Magistrate, happened on 29th June. It is not the action of an ordinarily prudent and cautious man. I think the learned Chief justice was fully justified in his finding that the appellant acted without reasonable and probable cause.
Thus, the appeal should be dismissed with costs. In this judgment I have not dealt in any detail with the numerous grounds of appeal, as I understand my brother Betts proposes to address his mind to that aspect in the judgment he is about to deliver.
I have had the opportunity of reading the judgment of my learned brother Robinson, J., and I agree that this appeal cannot succeed. There are, however, in my opinion, a few points on the grounds of appeal which should be specifically referred to and dealt with. The grounds of appeal may be generally divided into the following headings:
(1) Misreception of evidence.
(2) Insufficiency or want of evidence.
(3) Relief from liability as the defendant-appellant was Official Administrator.
(4) Question of reasonable and probable cause and malice.
On the question of misreception of evidence: the only matter which requires consideration is the evidence of the plaintiff-respondent as to what he overheard Kabala say as referred to in ground 3 (c) of the grounds of appeal. Although the evidence referred to the defendant-appellant, it was not made in his presence and not forming part of the res-gestae, was in my opinion, wrongly received. But the question is what is the effect of evidence wrongly received during a trial? If there is other evidence to support the judgment the misreception does not affect it. In this case the learned trial Chief justice gave consideration to this misreceived evidence when he said inter alia:
“ This piece of evidence, although not directly bearing on the issue before me, does affect my opinion of Kabala’s credibility, and I believe that the defendant did attempt to procure Kalaba to give evidence that would strengthen the case against the plaintiff on the larceny case.”
So that if there is no other evidence to support his opinion of the credibility of Kabala, this Court should disregard not only the evidence of the plaintiff/respondent but the favourable impression on the mind of the learned Chief Justice of Kabala’s credibility. It does happen, however, that apart from the evidence complained about there is evidence as to what Kabala himself said: and the favourable opinion of his credibility formed by the Chief justice was recorded in his judgment before he dealt with the portion which, in my opinion, was wrongly received. Kabala gave evidence that the defendant-appellant induced him to give false evidence. His words were:
“ He said he wanted me and Masinankay to come to Court and say that Abrahim Allie stole the scale, and if I should give that evidence, and I am asked where I was … I should say at the back -of the fence…. He said, if you say exactly what I am telling you I shall give you £80 and £100 to Masinankay.”
In the judgment, the learned Chief justice recorded his favourable opinion of Kabala’s evidence when he said before dealing with the portion complained about, that “ this witness (meaning Kabala) gave his evidence in a straightforward manner.” I am therefore of the opinion that disregarding the evidence misreceived and the impression that evidence had on the mind of the learned Chief justice, there is sufficient to support the judgment.
On the issue of want of evidence or insufficient evidence, I am of the opinion that the judgment of the learned Chief justice cannot be assailed on those grounds. I regard that portion of the judgment as to the legal knowledge of the defendant-appellant a matter of comment by the learned Chief justice and not such as can be regarded as affecting the main issue in the case.
The reliance on section 6 of the Administration of Estates Ordinance (Cap. 2) of the Laws of Sierra Leone, for relief from liability on the grounds that the defendant-appellant was official administrator, cannot avail him as the learned Chief justice found that he attempted to induce a witness to give false evidence, that he did that in order to strengthen the evidence in a criminal case, and that he acted from improper motive. Section 6 of Cap. 2 is only applicable in a case where the official administrator acted bona fide in the supposed or intended execution of his duty, but not where his acts are mala fide.
I do not consider I should deal at any length with the question of whether reasonable and probable cause existed for the prosecution or whether there was malice in fact proved. It is sufficient to say that a finding by the learned Chief justice of improper motive, attempting to induce a witness to give false evidence in a criminal case are sufficient to support the conclusions he came to. I therefore agree that the appeal should be dismissed.
LEMEY, J. I concur.