012-NLR-NLR-V-13-MOHAMADO-ABDULLA-v.-LUSHINGTON.pdf
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No*. 12,1909.
Present: Mr. Justice Middleton and Mr. Justice Wood Renton.
MOHAMADO ABDULLA v. LUSHINGTON*
D. C., Galle, 8,908
Wrongful arrest under civilwarrant—LiabilityofFiscal—“ Gross
negligence "—Mistake—Malice—CivilProcedure Code, . s.362—
English Law—Roman-Dutch Law.
Held, that in an action against the Fiscal for wrongful arrest,
. malice need not be proved, where such arrest has been effectedwithout lawful authority. But where the arrest has been properlymade (i.e., according to the forms enjoined by law) no actionlies, unless the arrest was malicious and without reasonable andprobable cause.
Held, also, that section 362 of the Civil Procedure Code does notmake proof of special damage a necessary element in the constitutionof an action for unlawful arrest.
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HE plaintiff sued the defendant, the Fiscal of the SouthernProvince, for damages for wrongful arrest. The plaintiff
alleged that in C. R., Galle, 4,417, writ against person was issued^gainst the judgment-debtor in the said case, and that the Fiscal’sofficer unlawfully arrested t.he plaintiff under the said writ and tookhim into custody and detained him from 4.30 to 7 p.m.
* Reported by Mr. H. A. Jayewardene, during his editorship.
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The defendant alleged that the Fiscal’s officer who arrested the Nov. IS, 1909plaintiff did io by mistake under the bona fide and reasonable belief Mohamadothat he was the judgment-debtor in C. B., 4,417.AbduBa v.
The District Judge (W. E. Thorpe, Esq.) gave judgment for the n9tonplaintiff for Bs. 250, holding that the Fiscal’s officer in arresting theplaintiff acted maliciously.
The defendant appealed.
A. St. V. Jayewardene, for the defendant, appellant.
H. A. Jayewardene, for the plaintiff, respondent.
Cur. adv. vult.
November 12, 1909. Wood Benton J.—
1 think that the judgment of the District Judge should be affirmed.The respondent clearly established the arrest, the unlawfulness ofthe arrest, and, as required by section 362 of the Civil ProcedureCode, the “ gross negligence ” of the Fiscal’s officer by whom thearrest was effected. If the case were governed by English Daw,there woidd be no other facta probanda. Proof of .malice' is notnecessary in an action based on trespass to the person (Tralton v.Fisher1). Proof of special damage is relevant only as establishinga circumstance of aggravation. Section' 362 of the Code does not,in my opinion, make such proof a necessary element in the con-stitution of an action for unlawful arrest. It recognizes an existingcivil liability for unlawful arrest, and merely adds a statutoryelement, viz., “fraud, gross negligence, or gross irregularityof proceeding, or gross want of ordinary diligence, or abuse ofauthority, on the part of the person executing the process,’’ to thefacta probanda in actions against the class of public officers for whoseprotection it was enacted. Moreover, “gross negligence,’’ or,where that is present, malice on the part of an inferior officer is inlaw imputable to his superior, if the class' of act done by the formerfalls within the ordinary scope of his express or implied authorityfrom the latter. This is clearly English Law {Abraham v. Deakin,2and cf. Citizens’ Life Insurance Co. v. Brown3), and section 362appears to me to contemplate its application in Ceylon, for it makes,in effect, the Fiscal liable for the act of his officer, in the executionof process, if “ fraud, gross negligence,” or one of the other formsof wrongful conduct above mentioned is brought home to “ theperson executing such process.” If, on the other hand, the case isgoverned—as I think we must hold it to be—by Boman-Dutch Law,it is equally unnecessary that, in the .circumstances before us, the
1 (1881) 2 Dong, per Lord* (1891) 1 Q. B. 516.
Mansfield, at page 673.3 (1904) A. G. 423. •
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•Nw. 12,1909 additional element of malice should be established. “ It is an action-•WboDwrong,” says Nathan,1 ” to deprive another person of his
Renton J. liberty without lawful authority, or in an unlawful manner, on theMohamado grouD^owes a debt. That is to say, the informal or illegal
Abdulla v. arrest of a person for civil debt constitutes a trespass to the person,Lushington an<j amount in law to a false imprisonment, for which* damagesmay be recovered. If, on the other hand, the arrest had beenproperly made (i.e., according to the forms enjoined by law), aplaintiff who seeks to recover damages on account of such arrestmust show that it was malicious and without reasonable andprobable cause. In the one case the arrest is informal or illegal,and the consequent deprivation of the plaintiff’s liberty is effectedwithout colour of right, and is, therefore, actionable as a falseimprisonment or trespass to the person; while, in the other, thearrest is executed with due formalities, but is actionable as amalicious civil arrest, because it was executed maliciously andwithout reasonable and probable cause.”
• In the case of false imprisonment, proof of special damage seemsto be unnecessary.2 The present case is one of false imprisonment.The arrest itself was illegal, and it .was not incumbent on therespondent to prove malice.3 Even if that burden had restedon him, I should not be prepared to differ from the finding of theDistrict Judge that malice had been proved. I think that thatfinding is justified (1) as an inference from the utter recklessnessof the arrest;'1 (2) by appreciable, though slight, evidence of actualmalice, such as the pulling of the respondent about after his arrest;(3) by the facts that the respondent had been a trader in Galle Bazaarfor twenty years, that the Fiscal’s officer had executed process forhim, and that, in spite of his denial of the suggestion, he couldhardly have been ignorant of the respondent’s name. The evidenceof malice, although not a factum probamdum in the case, is anelement to be considered in the computation of damages. Moreover,in the Roman-Dutch, as in English Law, a servant or agent whoeffects an illegal arrest in the course, and within the scope, of hisordinary duties may render his principal liable for his wrongful act-.5
The damages (Rs. 250) are heavy. But no plea for their reduc-tion was embodied in the petition of appeal, and I think that weought to treat them as if they had been assessed by a jury.
I would dismiss the appeal, with costs.
Middleton J.—I agree.
Appeal dismissed.
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1 11, 8. 1654.3 See Hart and Cohen, 16 S. C. at page 368.
* Nathan, II, s. 1657.4 See Nathan II, 83. 1653, 1667.
* Davidson o. Johannesburg Turf Club (1904) Trans. H. C. per Solomon J.,
p. 268.