085-NLR-NLR-V-29-RATNAYAKE-v.-FONSEKA-et-al.pdf
( 397 )
Present: Schneider and Lyall Grant JJ.
RATNAYAKE v. FONSEKA et al.
311—D. C. Colombo, 32,739.
Action for damages—Injury resulting from, wrongful conviction—Fraudand conspiracy—Rejection ofplaint—CivilProcedure Code,
ss. 46 and 839.
An action to recover damages in respect of an injury resulting froma conviction for a criminal offence, alleged to have beenobtained by fraud and collusion, cannot be maintained, while the con-viction remains unreversed.
The Court is entitled to reject the plaint in such an action onthe ground that it is barred by a positive rule of law even afterservice of summons.
T
HE plaintiff stated that the defendants caused a false charge ofcriminal breach of trust to be preferred against him and by
fraud and collusion obtained his conviction, whereupon he wassentenced to undergo three years’ imprisonment. By reasonof the conviction the plaintiff was injured in his name and reputationand removed from the roll of practising proctors and therebysuffered damage which he estimated at Rs. 30,000. He asked for adeclaration that the said conviction was obtained by fraud andcollusion and claimed recovery of the said damage. After summonshad been served on the defendants, they moved, before filing answerthat further proceedings in the action be stayed on the groundthat the action was frivolous and vexatious and an abuse of theprocess of Court. The learned District Judge made order dismissingplaintiff’s action.
H. V. Perera (with Deraniyagala), for plaintiff, appellant.—Thelearned District Judge has accepted the plaint and issuedsummons. It is too late at this stage to act under section 46 andreject the plaint. That would be going behind his own order. Inany case one can only reject a plaint under section 46 when theaction is barred by a positive rule of law. A “ positive rule of law ”is a law created by the legislature and embodied in the form of astatute. There is no statute forbidding such an action as this.
We do not allege that the finding in the criminal case was wrong,nor do we seek to bring the matter up for retrial in this guise. Allwe do is to allege a conspiracy to injure us which is actionable.The conviction may have been perfectly correct, and there mayhave been perfectly true evidence on which it was based, but at thesame time there may have been a conspiracy to injure us, between
1988.
( 398 )
1988
Ralnayake
v.
Fonseka
certain parties, as a result of which, besides the true evidence in thecase on which the conviction is based, there may have been a massof false and perjured evidence, which was intended to cause us to bepunished more than we merited. A finding in our favour in thiscase, therefore, is not necessarily inconsistent with the correctnessof the verdict in the criminal case.
It has been held in Ceylon that the correctness of the proceedings-of a criminal case may be questioned in the course of a civil actionPedris v. Manufacturers Life Insurance Co., Ltd.1
This is undoubtedly a healthy rule and tends to prevent thevery great hardships that may result from false criminal charges inwhich conclusive proof of the innocence of the accused is onlyforthcoming after he has been convicted.
The law is by no means clear that the plaint discloses no causeof action, and in such a state of doubt it should have been accepted.
Hayleyt K.G. (with Canakaratne), for defendant, respondent.—The plaint discloses no cause of action known to the Roman-Dutchlaw, and should have been rejected. The Roman-Dutch- law jsclear that such an action as this cannot be maintained (VoetXLVII. 10, 20). There will be no end to litigation if findings ofjudicial bodies can be questioned in this manner in separate suits.
Counsel cited Bynoe v. Governor of Bank of England et at.2
The Court was entitled to reject the plaint, although summonshad been served.
When the Court omits to do what the Code required it to do on theplaint being presented, it might do it when the omission is broughtto its notice Read v. Samsudeen.3
H. V. Perera in reply.
March 14, 1928. Lyall Grant J.—
The plaintiff in this case alleged that the defendants caused afalse charge of criminal breach of trust to be preferred agaiust him.and by fraud and collusion obtained his conviction on February 28,1925, under the said charge, whereupon he was sentenced to threeyears* rigorous imprisonment and at the date of the plaint he wasstill undergoing the same. He alleged further that in consequenceof the said conviction and sentence he was injured in bis fair nameand reputation, suffered great pain of mind and body and pecuniaryloss; that his name had been removed from the roll of practisingproctors and his bond had been cancelled, to his damage which heestimated at Rs. 30,000. He claimed the right to sue (1) for adeclaration that the said conviction was obtained by fraud andcollusion and (2) for the recovery of damages.
1 19 N. L. R. 321.* (1902) 1 K. 19. 467.
* 1 N. L. R. 292.
{ m )The plaint appears to have been admitted and summons issuedon the defendants. Before lodging answers the defendants appearedand moved that the order for issue of summons and for filinganswers should be set aside and that all further proceedings in theaction should be stayed on the grounds (a) that the action wasfrivolous, vexatious, and an abuse of the process of Court, and (b)that the action was one without any foundation.
The objection appears to have been argued at length before thelearned District Judge, and he has made an order dismissing theplaintiff's action with costs. He has given very full reasons forthe order which he has made. The first point which he consideredwas whether, having admitted the plaint, he had any furtherpower to act under section 46 of the Civil Procedure Code. Section46 directs the Court to reject the plaint inter alia when the actionappears from the statement of the plaint to be barred by anypositive rule of law. The learned District Judge considered thatin this case the action was barred by a positive rule of law, and hethought that section 839 of the Code made it clear that where theplaint ought to have been rejected on presentation and was not thenrejected owing to an oversight, the Court was not debarred fromsubsequently rejecting it when the true state of affairs was broughtto its notice. He has quoted authority in support of this propositionand I think that he is right in thinking that the mere fact thatsummons was issued does not prevent the Judge rejecting the plaintat a subsequent stage.
I would refer to the case of Soy8a v. Soysa 1 where the facts weresimilar to those in the present case. In that case the previousdecision of Read v. Samsudeen 2 was quoted with approval. It wasthere held that when a Court omits to do what the Code requires itto do on a plaint being presented, it may do it at any time when theomission is brought to its notice, that is to say, it may act on thematerial which it had before it when the thing should according tothe Code have been done.
The only question which remains therefore is whether on theface of the plaint the plaintiff’s action is barred by a positive ruleof law. The action is one for damages in respect of injury causedto the plaintiff by a conviction. No case has been cited to uswhere such an action has been allowed. On the other handnumerous authorities have been cited to show that the Courts inEngland will not allow such an action to be brought while theconviction remains unreversed. The case of Bynoe .v. Governor& Company of the Bank of England and Williams3 reviews the Englishauthorities. A previous case was there referred to where thepoint was raised that this doctrine could not be held to .defeat an
1 17 N. L. R. p. 118.*1N.L. R. pp. 292 and 295.
3 1 J^. B. D. 1902, p. 4$7.
1*28.
Xri£i
ObantsF.
Ratnoyake
y.
Fonstka
m
Ltaia
ObaktJ.
RcUnayake
v,
Fonseka
( 400 )
action for malicious prosecution which resulted in a conviction,from which there bould be no appeal and which therefore remainedunreversed. The Court overruled the objection. Byles J. said:“ I think we should be disturbing foundations if we were to admitthat there is any doubt that the criminal proceeding must bedetermined in favour of the accused before he can maintain an actionfor a malicious prosecution. If this were not so, almost . everycase would have to be tried over again upon its merits/’Voet in book 47, title 10, section 20, lays down the Roman-Butch lawas follows:—
In all such cases the person who has been apprehended orprosecuted, has, of course, no cause of action if he has beentried and found guilty, even if he had been innocent, forthe fact of his conviction is the best proof of there havingexisted probable cause/'
It was argued on appeal that the present case was not an actionfor malicious prosecution, as the gist of the action was fraud andcollusion. I am unable to understand this distinction. Fraudand collusion are elements from which one may infer malice, andif it is held to be essential, as it is in both systems of law, in anaction for malicious prosecution to show that the proceedingalleged to be instituted maliciously and without probable causehas terminated in favour of the plaintiff, it is equally necessary toshow that such a termination has taken place, where thedefendants are alleged to have acted fraudulently and collusively.The fact , of the conviction is the best evidence, not only that theprosecution was not instituted maliciously, and was not false, butalso that it was not obtained by fraud and collusion. While it standsit must be held to decide the guilt of the accused. What the Courtis asked in effect to do in the present case is, to review the evidenceled in the criminal cases and this is precisely what Courts of lawsteadily refuse to do. The appellant asks the District Courtpractically to re-try the case, a course which is inconsistent withthe policy of the law.
The appeal is dismissed with costs.
Schneider J.—I agree.
Appeal dismissed.