Wade v Cole et Al; Wade v Cole

• Jurisdiction: Trinidad & Tobago
• Judge: McMillian, J.
• Judgment Date: 09 July 1966
• Neutral Citation: TT 1966 HC 8
• Docket Number: No. 882 of 1959 No. 973 of 1960
• Court: High Court (Trinidad and Tobago)
• Date: 09 July 1966

High Court of Justice

McMillan, J.

No. 882 of 1959 No. 973 of 1960

Wade

and

Cole et al

Wade

and

Cole

Malicious Prosecution - Plaintiff was arrested by the defendants who are policemen. Charges brought against him were subsequently dismissed. Plaintiff therefore brought 2 actions against the defendants for assault and unlawful arrest and for malicious prosecution. — Charge of disorderly behaviour as it was false and brought for an indirect and improper motive was malicious. Charge for resisting arrest was also perjured without reasonable and probable cause and maliciously since that charge founded its basis on the false charge of disorderly behaviour. Charge for refusing to pay the legal taxi fare was different. Court cannot say that defendants lacked reasonable and probable cause in preferring that charge against the plaintiff. Damages for malicious prosecution will be awarded. Judgment for the plaintiff with costs.

Criminal Law - Assault — Unlawful Arrest — Plaintiff was arrested by the defendants who are policemen. Charges brought against him were subsequently dismissed. Plaintiff therefore brought 2 actions against the defendants for assault and unlawful arrest and for malicious prosecution. — Court has found that the plaintiff was justified in refusing to come out of the taxi and in resisting his removal therefrom by the defendants. Accordingly his arrest in so far as it was based on the obscene language charge was unlawful. Any attempt by the defendants to justify the arrest of the plaintiff on any other grounds must also be rejected. Judgment for the plaintiff with respect to claim for assault and unlawful arrest. General damages assessed at $2,500.

McMillian, J.

1 On the morning of 16th October, 1958 the plaintiff, a tyre repairer who then carried on business at San Fernando, travelled to Port-of-Spain by a “route taxi”, owned and driven by one James Rice a witness for the defence in these actions. On reaching in or near Port-of-Spain it appears that there was some dispute between the plaintiff and the taxi driver concerning the payment of the fare and the taxi driver drove to the Besson Street Police Station where he made a report.

2 Subsequent to that report, but as I find on the evidence not in consequence of it, the plaintiff was arrested and taken into custody by both defendants who are members of the Police Force and detained until the following day when he was granted bail by a Magistrate at Port of Spain before whom he was brought on the following charges preferred by the defendant Cole viz:–

• (a) disorderly behaviour contrary to section 56(2) of the Summary Courts Ordinance;

• (b) refusing to pay his legal fare contrary to regulation 65 (2) of the Motor Vehicles and Road Traffic Regulations and

• (c) resisting a police officer in the execution of his duty, contrary to section 59 of the Police Ordinance.

3 These charges were, after several adjournments, finally dismissed on the 25th November, 1959. These are the facts which I find clearly established by the evidence, and the plaintiff now brings these two actions for assault and unlawful arrest and for malicious prosecution which were by consent heard jointly.

4 In so far as the first action is concerned which is in effect for assault and false imprisonment, the arrest of and consequent assault therefore on the plaintiff having been established the plaintiff would succeed unless the same are justified, and in this respect the defendants seek to justify their actions under the authority of section 104 of the Summary Courts Ordinances and plead in paragraphs 3, 4, and 5 of their defence to that action as follows:

• “3. On the 15th day of October, 1958 the plaintiff refused and/or omitted to pay his legal fare to James Rich the driver of the said motor car HC 3303 (which at all material times was a taxi) which was then standing in a public street namely Besson Street abutting on the Besson Street Police Station in the city of Port of Spain, and refused to remove himself from the said taxi when requested so to do by the driver thereof and a complaint to this a Court was lodged by the said James Rice at the said Police Station.

• 4. The defendant Cole was thereupon detailed to make inquiries into the said complaint. The defendant Cole requested the plaintiff to pay his legal fare and to leave the said taxis. The plaintiff refused to comply with the said request and proceeded to use obscene language and to behave in a disorderly manner whereupon the defendant Cole under the authority of Section 104 of the Summary Courts Ordinance Ch.3 No.4 arrested the plaintiff.

• 5. The plaintiff resisted the said arrest by the defendant Roach and using no more force than was necessary the defendants escorted the plaintiff to the nearby Besson Street Police Station where the plaintiff was formerly charged with the offences of disorderly behaviour (contrary to Section 56 (2) of the Summary Offences Ordinance) or refusing to pay his legal fare (contrary to Section 65 (2) of the Motor Vehicles and Road Traffic Regulations) and of resisting a Police Officer in the execution of his duty (contrary to Section 59 of the Police Ordinance).”

5 As regards the action for malicious prosecution against the defendant Cole, however, the plaintiff must show —

• (a) that the law was set in motion against him by a charge for a criminal offence;

• (b) that he was acquitted of that charge or that otherwise it was determined in his favour;

• (c) that the prosecutor set the law in motion without reasonable and probable cause; and

• (d) that in so eating the law in motion the prosecutor was actuated by malice”:

6 Wills v. Voisin (1963) 6 W.I.R. per Wooding C.J., at p.57.

7 It becomes necessary, therefore, to review the events lending up to the arrest and subsequent charges preferred against the plaintiff. In this regard, I must say at the outset that I was impressed with the plaintiff as a witness of truth and his evidence was supported by one Thomas Green whom I find was also a passenger in the taxi and was present when the plaintiff was arrested outside the Besson Street Station; and I accept their evidence on all material issues relating to the arrest of the plaintiff.

8 Both the plaintiff and Thomas Green gave evidence that the taxi driver Rice approached the plaintiff at the Library Corner. San Fernando, with a view to travelling by his taxi to Port of Spain. The stated and I accept that the taxi driver entered into an arrangement with the plaintiff to take him to McEnearney & Co. Ltd., in Port of Spain, on condition that he paid an extra fare for a seat which was then vacant. This was denied by the driver Rice who claimed he had a full complement of five passengers — the plaintiff, one Mr. Rodriguez whom he drove regularly, a woman whom he dropped off at Curepe, and two other men. Despite this denial however the driver admitted that he knew where the plaintiff was going but...