W.H. Nurse v. Rustomji Dorabji

The Chief Justice. — This is an appeal from a judgment of Coutts Trotter, J., in an action for malicious prosecution. He found for the plaintiff with Rs. 35,000, damages. The defences set up were that there was no malice and that there was reasonable and probable cause for the prosecution. As regards the latter point, I entirely agree with what was said by the learned Judge that there was no reasonable and probable cause for this prosecution. In considering that, I consider what the position was of the plaintiff in respect of the charge made against him in the Criminal Court, and I am quite satisfied that there was no ground at all for even suggesting that he had been guilty of any Criminal offence. No criminal offence in fact, had been committed, and I can see no reason at all for suggesting that Mr. Nurse, the defendant, really had any reasonable ground for thinking that a criminal offence had been committed.

On the other part of the case, namely, whether there was malice, there are two matters to be considered. The first is whether the defendant acted with an indirect motive. The learned Judge found that he did and I have no doubt that he was right. There was a dispute going on between the plaintiff and the defendant. The plaintiff had entered into a contract with the defendant, under which the defendant was to build for him a cinema and then let it out to him. A point arrived in the relationship between them in relation to that cinema when things were at a dead lock. The defendant was no doubt contending that there would have to be some alteration in the terms up to that time existing between the parties, and I think it is fairly clear that the plaintiff recognised that there would have to be some modification or alteration. The defendant put forward a draft lease on terms which he thought reasonable; the plaintiff rejected those terms and put forward an alternative which in turn the defendant rejected and the plaintiff claimed to fall back or stand upon the written agreement. He said that there had been and was an agreement between the parties binding and effective. Whether that agreement was binding and effective or not at that date is a matter with which we are not concerned and it is a matter on which I think it desireable to say nothing, in view of the fact that it is the subject matter of litigation between the parties. But that was the position, when the defendant chose to apply for the arrest of the plaintiff on what, as I have already said, are wholly frivolous grounds; and I think the learned judge was amply justified in coming to the conclusion, that he did so with the indirect motive of hoping to be in a better position to negotiate with his opponent, with a criminal charge hanging over his head, than he would be in negotiating as between two persons on equal terms. I think it right to say that, in my view, I do not think that, on this evidence, Mr. Nurse had or could have had any honest belief in the guilt of Mr. Rustomji. Either of those views is quite enough to justify the finding of my brother Coutts Trotter, J.

A further point arose on this point, which is really a subsidiary part of this case, namely that the defendant contends that he acted in launching this prosecution on the advice of Counsel and that he claims to be protected by reason of that fact. It is no doubt the law that that protection is given where Counsel's opinion has been obtained and where it is believed to be correct and acted upon. I think the law is correctly stated in the judgment of Bayley, J., in Ravenga v. Mack Intosh(1), in which he said:

“I accede to the proposition that if a party lays all the facts of his case fairly before counsel, and acts bona fide upon the opinion given by that counsel, (however erroneous that opinion may be) he is not liable to an action of this description.”

It may be observed that, in order to escape by reason of the opinion of counsel, the first condition is that all the facts of the case are laid fairly before counsel, and the second condition is that he acts bona fide upon the opinion, given by that counsel. I think it is quite clear in this case that all the facts were not laid fairly before counsel. The main ground of the prosecution was that a certain agreement between the parties, contained on four sheets of paper bearing a certain original date and giving a time limit for the building of the Cinema, was from time to time altered by a. fresh front sheet on a stamp paper with a new date being prepared by the solicitor to both parties and signed or initialled by the parties; and it was alleged that, because the plaintiff took the new front sheet, attached it to the remaining sheets of the original agreement and tried to have the document so composed registered, he was committing the crime of cheating and of forgery. The greater part of the evidence in this case ranged round the question of what was the intention of the parties in having these front sheets prepared. The presecution story was that they were prepared, in order to become the front sheet to some subsequent agreement to be executed. The defence story was that it was the intention of everybody throughout, that the new sheet should be substituted for the old. The defendant went before his counsel and told him that it was the intention of both parties, when the new front sheets were made at different times, that they were not to be attached to the remaining sheets of the original agreement, and on that basis apparently counsel advised. It is quite clear, to my mind, on the evidence, that so far from it being the intention of both parties that the new front sheets should not be attached to the original back sheets, it was the intention of both parties that they should be so attached and indeed, that they were brought into existence for the purpose of being so attached. I do not think it is a very creditable story to any one concerned. They desired to extend the time under an existing agreement. They did it by substituting a new front sheet, with a different date, treating that the execution of the original contract, witnessed as it was by several witnesses, as still being the execution of the final contract with a new date. I think also there was a desire on the part, at any rate, of some of the parties concerned, that as the stamp for agreement for lease was an inadequate stamp, it might be possible to get a reduction of the penalty, which was being incurred by reason of the stamp not being the right stamp, by putting before the registration authorities that the document was of recent date, whereas the chance of getting a reduction of penalty would be very much less, if the authorities had been aware that the contract had been in existence for a very considerable time, and acted upon, and was, in fact, renewed from time to time by this addition of a front sheet. However that may be, I am quite satisfied that it was the intention of both parties that it should be so used. In fact, the solicitor, who was the solicitor for both the parties and who gave evidence at the police Court and at the Sessions Court, although he at first, particularly in the police Court, tried to make out that it was contrary to the agreement that the front sheet should be attached to the others, when he got before the Sessions Court and was fully cross-examined, ultimately said in the plainest terms, that the whole intention of the parties was that the new front sheet in his words, “was to form part and take the place of the front sheet of the old agreement.” That being so, it cannot, in my judgment, be said that the truth of facts was placed fairly by the defendant before counsel, when counsel advised, if he did so advise, that this prosecution should take place. Under these circumstances, I think that in this case there was ample evidence both of absence of reasonable and probable cause and of malice in fact.

There remains only the question of damages. In countries, where these questions of tort are tried before a Jury, damages are eminently in the province of Jury. Where, however, a case is tried before a judge, the judge has a very wide discretion, on the facts of the case before him, to say what, in his view, the damages should be; but it is no doubt easier, to get the damages reduced on a judgment from a judge than, as in England in the case of a verdict by a Jury; because a judge, in his judgment, states his reasons, when he gives damages and states what influences him, or what is in his mind when he gives those damages; whereas in England, where the Jury gives no reasons, it is almost impossible for the Court of Appeal to know what operated on the mind of the Jury and it is difficult to establish that the damages are so excessive that no reasonable body of twelve men could have come to that measure of damages. I have had some little doubt in this case whether the learned judge, who quite fully states his reasons for taking rather a strong view of the case as to damages, was not inclined to severity; but, on the whole, I think not. I am not certain as to whether I should not have awarded a lesser amount, but that is not what I have to consider. What I have to consider is whether the learned judge was wrong in awarding the damages that he did. As has been pointed out, it is a serious thing, indeed, for a business man of position more especially when he carries on business in another place, to be brought before the Criminal Court of Madras and kept here for some months, with the anxiety of prosecution hanging over his head, having to incur very heavy costs here, which are separately provided for, in the judgment, and having to incur expenditure by reasons of his being away from house and being subjected to the injury, which must necessarily accrue to the man's business, when he must be away from his business for a considerable time, and under a suspicion of having been guilty of serious criminal offences. Under these circumstances I do not think it right to interfere with the judgment here, and this appeal must be dismissed with costs. Certified for two counsel.

Ramesam, J.—I agree and have nothing to add.

K.V.SAppeal dismissed.