SADO et al. v. NONABABA et al.

 

Present: Mr. Justice Wood Renton and Mr. Justice Grenier.

 

SADO et al. v. NONABABA et al.

 

D.C., Galle, 8,108.

 

    Malicious  prosecution-Husband and wife defendants-Misjoinder- Waiver-Liability of husband for wife's tort-Dolus mains.

    Where a husband and wife who were married after the passing of Ordinance No. 15 of 1876 were sued in one action for damages for malicious prosecution and judgment was entered against them, and no objection on the ground of misjoinder was taken in the lower Court-

    Held, that the action was wrongly constituted, inasmuch as the causes of action were separate and distinct and could not be joined under   section   11   of   the   Civil   Procedure   Code.

    Sadler v. The Great Western Railway Co.1 and Appuhamy v. Marthelis Rosa 2 followed.

 

Held, that the objection to mis joinder of causes of action not having    been    taken    at    the    trial    could    not    be    entertained    in    appeal.

 

Held, that a husband married after the coming into operation of Ordinance No. 15 of 1876 is not liable for his wife's independent tort, and that no judgment could be passed him as a joint tort-feasor, unless there was complicity or participation on his part in the wife's tort.
 

Held, also, that, in order to succeed in an action for malicious prosecution, it is incumbent on the plaintiff  to prove    dolus malus.

 

Moss v.  Wilson 3 and Corea v. Pieris 4 followed.

 

                                              

1 (1895) A. C. 450.  
2 (1906) 9 N. L. R. 68.

3 (1906) 8 N. L. R. 368.       
4 (1906) 9 N. L. R. 276.

 

 

APPEAL by the defendants, husband and wife, from a judgment of    the    District    Judge    condemning    them    to    pay    to  the  plaintiffs Rs. 400 damages for malicious prosecution.

 

H. J. C. Pereira, for the defendants, appellants.

 

Sampayo, K.C., for the plaintiffs, respondents.

 

Cur. adv. vult.

 

June 7, 1907.   WOOD RENTON J.-

 

This is an appeal from a decree of the District Court of Galle condemning the appellants, who are husband and wife, to pay to the respondents a sum of Rs.  400 for false  and malicious prosecution.
 

Mr. H. J. C. Pereira impeached the judgment of the District Court on three grounds: (i.) That the action was wrongly constituted; (ii.) that, in any event, judgment ought not to have been entered against the second appellant, who is the husband of the first, inasmuch as he was not shown to have been in any way a party to the charge preferred by his wife against the respondents; and (iii.) that the respondents had failed to establish dolus malus as defined, for the purpose of cases like the present, by the well-settled jurisprudence of the Supreme Court.

 

I propose to deal with each of these points in turn. (i.) And first, as to the constitution of the action. Mr. Pereira contended, on the strength of the decision in Appuhami v. Marthelis Rosa,1 following that of the House of Lords in Sadler v. Great Western Railway Co.,2 that the action was bad, inasmuch as the causes of action of the respondents were separate and distinct, and could not be joined under section 11 of the Civil Procedure Code. Speaking for myself, I think that this objection would have been a sound one if it had been taken in time. So long as the words " the right to any relief claimed " and the " same cause of action " in section 11, and the definition of " cause of action " in section 5 of the Civil Procedure Code remain unaltered, I do not think that litigants in this Colony can get the benefit of the English decisions, of which the Universities of Oxford and Cambridge v. Gill 3 may be taken as an example, and which allow the joinder of parties who have " any right to relief " arising out of the same transaction or series of transactions. It was found necessary in England, so as to clear the way for such a joinder, to substitute for th

Click Here to Read the rest of this document