Not much of an engineering feat

A respectable gentleman, a city coroner no less and a justice of the peace, stood accused of having stolen a consignment of rotor-core plates meant for a hydro power unit in a CEB project.  

The CEB apparently imported some faulty rotor-core plates along with good ones and when the Insurance Corporation sold the faulty plates after paying out insurance, the good ones were sold too, because the staff at CEB were not properly directed to remove the good equipment from the consignment to be sold.  

When the CEB was looking for the proper equipment for their work, it wasn’t to be found obviously, because the equipment in good condition had got lumped together with the bad stuff and was sold by the Insurance Corporation.  

The CEB engineer looking for the equipment in good order was frantic. He learned that somebody had bought the entire consignment of equipment from the Insurance Corporation in an auction. In his hurry to make the police recover the good equipment he thought it’s best to accuse the buyer of the equipment of having stolen it. He thought this way the police will act on the matter faster.  

The buyer, an upright gentlemen of good social standing did not like this at all. He filed action in the District Court and sued for malicious prosecution by the engineer concerned.   

The District Court however did not grant any relief to the plaintiff and he appealed whereupon the Appeal Court granted him the relief he was seeking. This didn’t satisfy the defendant respondent who had made the accusation and he appealed to the Supreme Court. (Alwis v. Ahangama - SLR - 225, Vol 3 of 2000 [2000] LKSC 2; (2000) 3 Sri LR 225 (June 21, 2000)).  

This is how the Supreme Court judgement recounts the DC case and the the antecedents of the case in question:  

“The Plaintiff-Appellant-Respondent (the ‘Plaintiff’) is an Attorney-at-Law, a Justice of the Peace, and additional City Coroner of Colombo. He instituted this action against the Defendant-Respondent-Appellant (the ‘Defendant’), an Engineer employed by the Ceylon Electricity Board (‘CEB’).  

The issues framed at the trial (and the learned District Judge's answers thereto) were as follows (issues have been abridged for purposes of this article.):  

1. Did the Defendant on or about 02. 10. 1980 make a complaint to the Grandpass Police that the Plaintiff had committed theft of rotor core plates as set out in paragraph 5 of the plaint? NO.”  

The Appeal Court had not only reversed the DC judgement but granted the full Rs. 500,000 in damages that had been claimed.  

What transpired was that the defendant engineer though initially not even naming the plaintiff subsequently went with the police to a premises in Grandpass where the plaintiff had stored the rotor-plates because he couldn’t sell them. The almost funny aspect of the entire matter was that the plaintiff knew next to nothing about this type of equipment. He had bought the entire consignment for a song, some eight hundred rupees, so that he would be able to sell the discarded stuff, whatever it was, at a profit.  

The Supreme Court judgement however states that though the defendant initially had not named the plaintiff, that situation didn’t last for long:  

“But what happened thereafter puts a very different complexion on the matter. The Police immediately went to De Vos Lane, accompanied by the Defendant. The contemporaneous notes made by the Police record that they went in search of the stolen plates; that the Defendant pointed out the plates which were close to No 50/16: that they made inquiries-and learnt that the owner of No. 50/16 was Edward Ahangama, who was not in at that time; and that the Defendant identified the plates as belonging to and stolen from the CEB.  

It is not necessary for me to consider either the accuracy of those notes, as to what was said or done at the scene, or their admissibility or evidentiary value - for the reason that, when confronted with those notes in cross-examination, the Defendant admitted that he told the Police that the plates had been stolen from the CEB's Pettah stores. He further accepted that he had made this complaint against the Plaintiff without any foundation, simply because he had not given permission to anyone to remove the (undamaged) plates from the stores.”  

The defendant, the engineer, testified in Court that he subsequently retracted the charge of theft. He gave evidence to the effect that he was merely trying to do his duty and discharge his responsibility and recover the rotor-plates because the contractors were looking for them.  

The plaintiff was discharged in the Magistrate’s Court where he had been charged for theft, but not until three months after the original charge was made. The counsel for defendant (now appellant) in the Supreme Court relied mostly on the legally ‘technical’ position that the plaintiff had not been prosecuted which meant there was no malicious prosecution. Indeed he had been charged for theft and later discharged.  

Mr. Goonesekera (Counsel) contended that the Court of Appeal had expressly acknowledged that the Plaintiff was suing for malicious prosecution, citing the following observations:  

“The plaint did not set out a cause of action based on malicious prosecution; and nowhere did it mention or even imply a prosecution. The cause of action was that the Plaintiff had been taken into custody and produced before the Magistrate as one against whom a charge of theft would be made; and, consistently, the Plaintiffs issues, on which the case was tried, were based on that arrest and production in Court - not on any prosecution”.  

Counsel for defendant appellant raised a question as to whether an action against wrongful arrest — as a tort — can be maintained inferring that actions could only be confined to malicious prosecution. The inference was that there was no prosecution in the case under review so an action for malicious prosecution cannot be maintained.  

However there is a case to be made against abusing legal process, the Supreme Court judgement held:

“Mckerron (Law of Delict, 6th ed, p 224) describes one category of the wrongs for which the actio injuriarum provides a remedy as ‘ABUSE OF LEGAL PROCEDURE’. Under that head, he deals first with ‘Malicious Prosecution and other Malicious Proceedings’:  

“Every person has a right to set the law in motion, but a person who institutes legal proceedings against another maliciously and without reasonable and probable cause abuses that right and commits an actionable wrong. Although, as is pointed out by de Villiers CJ in Hart v. Cohen, the rule is directly traceable to the influence of English law, it has its origin in principles which are common to our law and the law of England.”  

It’s clear then that abuse of legal procedure is actionable under tenets of English law. However, this action, abuse of legal process, cannot succeed in this instance as there was no prosecution in the case under review, Court held.   

However, we follow Roman Dutch law in these matters and the law applicable therefore is much wider in scope. Though the Counsel for the defendant stated that defendant had not made any express allegation of theft the Supreme Court begged to differ and in the judgement it was stated that he — the defendant — expressly withdrew the allegations of theft which means he had indeed explicitly made allegations of theft. It’s guessed that once you are committed to a position you are committed to it and you can’t have the cake and eat it so to speak.  

The Supreme Court judgment notes:  

“However, the Defendant's own evidence and conduct quite clearly establishes that he did make such an allegation at some time on 02. 10. 80. First, he admitted the correctness of the Police notes, made soon after that complaint, that he had pointed out the plates which were lying near the Plaintiff's premises No. 50/ 16, and had identified them as belonging to and stolen from the CEB. Second, the fact that later he expressly withdrew the allegation of theft leads irresistibly to the conclusion that he had previously alleged theft.  

Nevertheless, that made his motive improper. He did not content himself with making a fair statement of the facts, and leave it to the Police to use their discretion; instead, he made a false allegation of theft, which he could not reasonably have believed; and which was not merely reckless, but which he knew to be false. Further, he must have known that an allegation of theft of CEB property worth Rs. 500,000 was very likely to result in an arrest. There was thus animus injuriandi.”  

It was held that the Plaintiff established malice. The Appeal was dismissed without costs but the damages to be paid to the plaintiff were reduced from Rs.500,000 to Rs.100,000 with legal interest, from the date of the SC judgement.