Singh v Singh [1935] FJLawRp 1; [1875-1946] 3 FLR 173 (15 March 1935)

[1875-1946] 3 FLR 173

SUPREME COURT OF FIJI

Civil Jurisdiction

TARA SINGH

v

DALEL SINGH

Maxwell Anderson, C.J.

March 15, 1935

Action for malicious prosecution-nolle prosequi entered to the prosecution-whether proceedings in prosecution terminated in favour of plaintiff.

In December 1933 Dalel Singh laid a charge to the effect that Tara Singh had robbed him of two one pound notes as a result of which a preliminary enquiry was held and Tara Singh committed for trial. The Attorney-General entered a nolle prosequi to the information and thereupon Tara Singh brought the present action claiming damages for malicious prosecution.

HELD.-

A nolle prosequi does not have the same effect as an acquittal and does not amount to a termination of proceedings in favour of the accused so as to enable him to bring an action for malicious prosecution.

[EDITORIAL NOTE.-This was a reserved judgment but there is no record of a written judgment; the report is compiled entirely from the Judge's Notes. The Criminal Procedure Code s. 73 specifically provides that a nolle prosequi is not a bar to subsequent proceedings. At the date of the decision the relevant section (Criminal Procedure Ordinance, 1875 s. 7) contained no such provision.]

Cases referred to:-

(1) Gilchrist v Gardner [1891] NSWLawRp 53; [1891] 12 NSWLR 184; 8 NSWWN 21; 33 Dig 481 N. (ADS).

(2) Goddard v Smith [1704] 87 ER 1107; 33 Dig 481; 14 Dig 243

(3) Rich v Forman [1926] WALawRp 14; [1927] 29 WALR 13. (ADS).

(4) R v Allen [1862] EngR 309; 1 B & S 850; 31 LJMC 129; 5 LT 636; 26 JP 341; 9 Cox CC 120; 121 ER 929; 14 Dig 243

(5) Cotterell v Jones [1851] EngR 927; [1851] 138 E R 655; 21 LJCP 2; 33 Dig 507.

(6) Brook v Carpenter [1825] EngR 221; [1825] 3 Bing 303; 130 ER 530; 33 Dig 482.

(7) Metropolitan Bank v Pooley [1885] 10 Ap Cas; 210; 54 LJQB 449; 53 LJ 163; 49 JP 756; I Dig 67

(8) Quartz Hill Gold Mining v Eyre [1883] UKLawRpKQB 126; [1883] 11 QBD 674; 52 LJQB 488; 49 LJ 249; 33 Dig 469.

(9) Elworthy v Bird [1824] EngR 721; [1824] 2 Bing 258; 9 Moo PC 430; 130 ER 305; 14 Dig 244.

(10) Reed v Hales [1872] 11 NSWGCR 317 33 Dig 481 (AUS).

ACTION for damages for malicious prosecution.

S. B. Patel, for the Plaintiff.

P. Rice for the defendant submitted that the plaintiff's case was ill founded since it had not been shown that the criminal proceedings pleaded as the substance of the case had terminated in favour of the plaintiff (Metropolitan Bank v Pooley, Quartz Hill Gold Mining Co. v Eyre). A nolle prosequi did not amount to such a termination. (Goddard v Smith, Rich v Forman, Cotterell v Jones, Reed v Hales).

S. B. Patel, for the plaintiff submitted that it was not dear whether a nolle prosequi does or does not put an end to the proceedings (R v Allen) and that the plaintiff need not prove that the cause of action was at an end (Brook v Carpenter).

MAXWELL ANDERSON, C.J.-As part of his case the plaintiff must show that the proceedings against him had terminated in his favouR Gilchrist v Gardner is authority for the proposition that a nolle prosequi does not operate as a discharge or acquittal on the merits and there is some authority (Archbold p. 112) to the effect that fresh-process may be issued on the same indictment. A nolle prosequi is distinct from and has not the same effect as offering no evidence and submitting to an acquittal (Elworthy v Bird). I hold therefore that a nolle prosequi does not terminate criminal proceedings in favour of the accused so to enable him to found an action for malicious prosecution on the proceedings.