Thulla v S (CR APP 3 of 1972) [1972] SLCA 1282 (18 April 1972)

SECTION 14 THE AFRICAN LAW REPORTS Sierra Leone, has the right and power lawfully to direct and instruct the defendant to hold and conduct an election of officers on Thursday, April 13th, 1972. The application by the plaintiffs is refused. I order that the 5 plaintiffs pay the costs of the defendant in respect of this appli~ 10 15 20 25 30 35 40 cation, such costs to be taxed. Application refused. THULLAv.THESTATE Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): April 18th, 1972 (Cr. App. No. 3/72) [1) Criminal Law-false imprisonment-arrest by order of accused-guilty if arrest authorised or directed by him and effected by ministerial, not judicial, officer-not guilty if ministerial officer acts at own discretion on information received from accused: The offence of false imprisonment or the tort of the same name is committed by any person who authorises or directs the unlawful arrest of the plaintiff by a merely ministerial officer of the law, such as a police constable; however, it is necessary to prove actual direction or authorisation and merely to give information to such an officer, on which he acts at his own discretion, does not constitute the offence (page 93, lines 28-38). [2] Criminal Law-false imprisonment-imprisonment by order of court­ person laying information not liable in respect of imprisonment ordered by court: The offence of false imprisonment is not committed and no action will lie in tort against a person in respect of the imprisonment of the plaintiff by a court on the information of ~hat person, even if the court has acted without jurisdiction; he may, however, be liable in tort for having maliciously and without reasonable cause exercised his right to lay an information before the court (page 93, lines 20-24; page 93, line 39- page 94, line 4). [3] Tort-false imprisonment-arrest by order of defendant-liable if arrest authorised or directed by him and effected by ministerial, not judicial, officer-not liable if ministerial officer acts at own discretion on infor­ mation received from defendant: See [ 1] above. [ 4] Tort-false imprisonment-imprisonment by order of court-person laying information not liable in respect of imprisonment ordered by court: See [2) above. The appellant was charged in the High Court with false impris­ onment. The appellant filed an information on oath against the Para­ mount Chief of the district upon which the police obtained a warrant of arrest from the magistrate and arrested the Paramount Chief. The Chief was taken to a police station and detained there for about two hours, after which he was duly charged. The appel- 90 a THULLA v. STATE,l972-73 ALR S.L. 90 C.A. lant did not subsequently press the charge. The appellant was charged in the High Court with having unlawfully imprisoned the Chief and detained him for nearly two hours against his will. The court (Lawrence-Hume, J.) held that although the Chief was arrested on a properly issued warrant it was the appellant, and not the magistrate who issued the warrant, who was responsible for the Chief's arrest and imprisonment; and that since the appellant never intended to press the charges against the Chief, as was shown by the evidence of the subsequent events, the arrest was unlawful. The appellant was convicted and appealed, contending that the verdict was unreasonable in law in that he could not be held liable in respect of an imprisonment which, though procured by him, was properly authorised by a court of law. The Court of Appeal also considered the distinction to be made between an arrest authorised by a private person through the agency of a ministerial officer of the law and an arrest authorised by a judicial officer. The appeal was allowed. Cases referred to: (1) Austin v. Dowling (1870), L.R. 5 C.P. 534; 22 L.T. 721, dictum of Willes, J. applied. (2) Brown v. Chapman (1848), 6 C.B. 365; 136 E.R. 1292. (3) Grinham v. Willey (1859), 4 H. & N. 496; 157 E.R. 934. (4) Lea v. Charrington (1889), 23 Q.B.D. 45; 61 L.T. 222. (5) Thompson v. Hatch (1844), N.B.R. (Kerr 2) 425, not followed. Carew for the appellant; Constant Davies, Sol.-Gen., for the State. 5 10 15 20 25 FORSTER, J.S.C., delivering the judgment of the court: 30 Sheka Thulla has appealed to this court on three grounds against his conviction by Lawrence-Hume, J. of the offence of false imprisonment. The grounds are: 1. The trial judge was wrong in law in holding that: (a) P.C. Alhaji Masakama was not arrested on the orders of the 35 Magistrate's Court, Magburaka; (b) P.C. Alhaji Masakama was never imprisoned at all on the orders of the magistrate; (c) P.C. Alhaji Masakama's remedies in the above matter were both criminal and civil. 40 2. The verdict of the court was contrary to the weight of the evidence. 91 THE AFRICAN LAW REPORTS 3. The verdict was unreasonable in law having regard to all the circumstances of the case. The brief facts, which are not disputed, are that the appellant swore an information on which the police obtained a warrant of 5, arrest from the magistrate having jurisdiction in the venue and arrested the Paramount Chief of the district (hereinafter referred to as the Chief) in which the appellant's complaint originated. After his arrest, the Chief was taken to a police station in the district and duly charged; the whole process at the police station 10 took some two hours. It is for this period, while the Chief was \lnder arrest, that the appellant was charged that he "unlawfully and injuriously imprisoned Paramount Chief Masakama and detained him for nearly two hours against the will of the said Paramount Chief." 15 Couns~l for the appellant argued ground 1 citing three specific instances from the learned trial judge's judgment which he states were errors in law on the part of the said learned judge. The Solicitor·General, while not going as far as the appellant's counsel, expressed frank doubts as to the correctness of the learned trial 20 judge's exposition of the law in the passages cited by counsel for the appellant. We find that there is substance in this ground. Grounds 2 and 3 are of like tenor and the appellant's counsel relied heavily on three cases to which he referred the court: Austin v. Dowling (1), Brown v. Chapman (2) and Lea v. Charrington (4). 25 In addition he referred to 38 Halsbury 's Laws of England, 3rd ed., at 765~ para. 1267. In reply, the Solicitor.General contended that the appellant had failed to discharge the onus on him of proving that the detention of the Chief following his arrest was justified, in that the warrant of arrest on which the Chief was arrested was 30 never produced in evidence at the trial in the court below. He then invited the court that should we decide in favour of the appellant that the non-production in evidence of the warrant of arrest at the trial was not fatal to the case of the appellant, the court should follow the trend indicated in a case decided by a Canadian 35 court, that is, the case of Thompson v. Hatch (5) in which that court held that the prosecutor who had a defendant arrested on a properly issued warrant of arrest was nonetheless liable to be charged with. the offence of false imprisonment. There is abundant evidence recorded by the learned trial judge 40 which shows that he was satisfied that the Chief was arrested on a warrant which was authentic and valid and on that footing, 92 THULLA u. STATE, 1972-73 ALR S.L. 90 C.A. disposed of the case as he did. But where we find it not a little difficult to understand the reasoning of the learned trial judge is when he, as the appellant's counsel rightly pointed out, endeav­ voured to apply the law to the facts given in evidence before him and drew tenuous inferences therefrom for which we can find no 5 support, as for example when he said that the delay and ultimate non-prosecution of the case before the magistrate was evidence of the deliberate intention of the appellant not to prosecute and that it "related back to the arrest of the Chief and that such arrest was in the circumstances . . . unlawful.'' We are, regretfully, unable to 10 subscribe to such a novelty that seems to be aptly described as an "actus reus ab initio." We also regretfully cannot accept the Solicitor-General's invi­ tation to follow the Canadian trend as we are confirmed in our opinion that the long line of decided cases in Commonwealth 15 countries before and after the Canadian case is to be preferred and that this court approves and applies the principle stated by Willes, J. in Austin v. Dowling (1) cited earlier in this judgment, that (L.R. 5 C.P. at 540)- "the party making the charge is not liable to an action for 20 false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment." [These words do not appear in the report of the case at 22 L.T. 721.] 25 The learned author of Salmond on Torts, 15th ed., at 165 (1969) makes the following additional point on this question: "An action for false imprisonment will lie against any person who authorises or directs the unlawful arrest or detention of the plaintiff by a merely ministerial officer of the law. He 30 who sets in motion a merely ministerial officer, such as a constable, has no protection similar to that which is extended to the litigant in a court of justice. If he makes that minis- terial officer his agent he is responsible for any arrest or detention so procured or authorised. It is necessary to prove 35 actual direction or authorisation; mere information given to such an officer, on which he acts at his own discretion, is no ground of liability.'' Grinham v. Willey (3) was cited in support thereof. A court of justice, on the other hand, is not the agent of the litigant but 40 acts in the exercise of its own independent judicial discretion. The 93 SECTION 15 THE AFRICAN LAW REPORTS litigant can be charged only with having maliciously and without reasonable cause exercised his right of setting a court of justice in motion. The litigant is exempted from any liability for false imprisonment even if the court ordering the imprisonment has 5 acted without jurisdiction, because it is the right of every litigant to bring his case before the court, and it is for the court to know the limits of its own jurisdiction and to keep within them. In the result, we would allow the appeal and order accordingly. The conviction is quashed, the sentence set aside and the fine 10 paid is to be refunded to the appellant forthwith. Appeal allowed. 15 20 25 30 35 40 FREEMAN v. LUKE Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): May 5th, 1972 (Civ. App. No. 30/71) [ 1] Civil Procedure-interlocutory proceedings-preliminary point of law­ disposal of point of law raised by pleadings-point of law to be disposed of before trial where decision on it will substantially dispose of action: Where the decision on a preliminary point of law raised by the pleadings may dispose of an issue but not of the action as a whole, it may be expedient to deal with it during the hearing of the evidence at the trial; but where the decision on such a point of law will, if argued before the trial, substantially dispose of the action, it should be disposed of then and there under the provisions of the High Court Rules, O.XXI, r.2 (page 101, line 21 -page 102, line 7). (2] Civil Procedure-pleading-objections-objection in point of law-objec­ tion to be disposed of before trial where decision on it will substantially dispose of action: See [1] above. [3] Courts-High Court-procedure-objection in point of law-objection to be disposed of before trial where decision on it will substantially dispose of action: See [1] above. The respondent brought an action in the Supreme Court (now High Court) against the appellant and two others seeking (a) a declaration that he was the owner in fee simple of two plots of land, (b) damages for trespass, and (c) an injunction restraining the appellant and the two others from further trespass. The respondent alleged that he had been in possession of the land in dispute for the past 25 years and that the appellant (then the third defendant) and two others (then the first and second defendants) had wrongfully entered his land and pulled down fruit trees and erected beacons on it. He further alleged that the first and second defendants had purported to convey portions of his 94