ABDUL JAVER HEGHJI v. ALIBHAI MITHA (1967) HCD 235

Blogger's Note: WATCH! This case has been erroneously cited as Meghji v. Alibhai (1967) HCD 235. The true,  accurate and complete citation should be: Abdul Javer Heghji v. Alibhai Mitha (1967) HCD 235. good luck!

Civ. Case 22-D-66; 14/7/67

Georges, C. J.

Defendant had obtained a judgment against plaintiffs. Subsequently, defendant filed in the High Court a Chamber Summons applying for the arrest of plaintiffs, alleging that he had cause to suspect that the plaintiffs, were in default and that they were about to leave the country. On the bases of his affidavit, the Court issued an order for the issuance of a warrant of arrest. Plaintiffs were arrested and released on an undertaking to appear before the Court; they did appear, and were conditionally released on surrendering their passports and on an undertaking to appear for further hearings. The defendant then applied for execution of the decree in the original action by arrest and detention of the plaintiffs in civil jail, on the ground that they had defaulted in their payments. This application was heard and dismissed, the Court holding that no default had occurred.

            Plaintiff then brought an action alleging “malicious abuse of the process of law or alternatively …… a breach by the defendant of his duty of care …… to avoid careless allegations which would cause them, the plaintiffs, damage ……” They did not specifically plead that the order for issuance of the arrest warrant had been vacated by the High Court.

            Defendant contended that their failure to plead vacation of the order was fatal to the cause of action. Plaintiffs replied that it was not, and further argued that even if it were fatal to the action for malicious prosecution, it would not affect the alternative theory of liability (defendant’s breach of a duty to avoid careless allegations.).

            Defendant also urged that, through tout the proceedings in question, he had resorted to legal counsel. His advocate was not called, however, to testify as to the advice he had given defendant.

HELD:

(1) The plaint stated only one cause of action, that for malicious prosecution. The element of malice is essential: there is no action for breach of an alleged duty not to made careless allegations which could lead to another persons’ arrest. 

(2) In an action for malicious prosecution, it must be averred that “in as far as the proceedings on which (plaintiff) sues could have terminated in his favor ……. They have in fact done so.” Here, although the order for issuance of the warrant may not have been vacated, the Application for execution of the decree was dismissed, and this was sufficient to satisfy the requirement. (Citing numerous authorities, with an exhaustive discussion.) 

(3) A showing that the defendant sought legal advice in proceeding against the plaintiffs weights in his favour; but it is not, in itself, sufficient to show that he had reasonable and probable cause to act as he did. 

(4) The evidence showed reasonable cause to suspect the plaintiffs of default, but not of an intention to leave the country. Judgment for plaintiffs.