Wati v A. Hussain & Co. Ltd [1986] FijiLawRp 23; [1986] 32 FLR 1 (26 September 1986)

[1986] 32 FLR 1

SUPREME COURT OF FIJI

Civil Jurisdiction

NIRMALA WATI

v

A. HUSSAIN & CO. LTD AND ASIM HUSSAIN

Rooney J.

26 September 1986

Malicious Prosecution - No action therefor until there has been a judicial proceeding - no prosecution - baseless complaint leading to arrest and detention - person making complaint responsible to detention - liability for damages.

V. Maharaj for the Plaintiff
M. Sadiq for the Defendants

Nirmala Wati (plaintiff) sued A. Hussain & Co. Ltd and Asim Hussain (first defendant and second defendant respectively) for malicious prosecution and false imprisonment.

On 24 December 1984 plaintiff, then an accounts clerk employed by the first defendant as part of her duties collected from the cashier Pushpa Kanti $3,500 which she paid into the first defendants bank account. Later she ceased work and went home. Kanti made up a reconciliation account but by mistake it showed that the, amount due to be banked exceeded the sum banked by $1,000. The second defendant examined the reconciliation but could not account for the $1,000. He suspected plaintiff had taken it. Without checking Kanti's reconciliation which would have shown the mistake he went to the police, reported the (apparent) loss, told the police plaintiff was in charge of banking and he suspected her. The police obtained a search warrant, searched her house and found there $140 which they seized. The house was full of visitors. The search lasted half an hour. Plaintiff was taken to the police station and interrogated. She was shocked and frightened. While the questioning was going on, the second defendant having discovered Kanti's mistake, went to the Police station and told them of his mistake. The plaintiff was freed and her $140 given back. She had not then been charged.

The action was for malicious prosecution and wrongful imprisonment.

No defence was raised seeking to justify the actions of the police in detaining the plaintiff.

Held: There had been no proceedings of a judicial nature taken against the plaintiff. She was not prosecuted. It followed that no action for malicious prosecution would lie. See Austin Dowling L.R. 5 CP 534; Mohammed Amin v. Jogendra Kumari Bannerjee (1947) AC 322 at 331. As to wrongful imprisonment there was no assertion by the defendants that the arrest and detention of the plaintiff was lawful.

Where a person complains to the police that an offence has been committed or indicates to them a person against whom he may have reasonable cause for suspicion and the complaint is baseless, but leads to the arrest and detention of the innocent person the maker of the complaint must accept full responsibility for the actions taken on his behalf by the police.