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case of Castrique v. Behrens (3), an action for conspiring with
certain persons fraudulently and unlawfully to procure an attach-
ment and condemnation of a ship by a proceeding in rem in a
foreign court, where he said (3 E. & E. at 721; 4 L.T. at 53):
"But in such an action it is essential to show that the proceeding
alleged to be instituted maliciously and without probable cause
has terminated in favour of the plaintiff, if, from its nature,
it be capable of such termination. The reason seems to be that
if, in the proceeding complained of, the decision was against
the plaintiff and was still unreversed, it would not be consistent
with the principle on which law is administered for another
court, not being a court of appeal, to hold that the decision
was come to without reasonable and probable cause."
The exception is to be found in the words "if from its nature, it be
capable of such termination." That case was followed in Basébé
v. Matthews (1) and it is referred to with approval by Collins, M.R.,
who delivered the judgment of the Court of Appeal in the case of
Bynoe v. Bank of England (2).

An example of an exception to the general rule occurs in the case of Steward v. Gromett (7), which was an action for maliciously and without reasonable and probable cause going before a magistrate and procuring the plaintiff to be held to bail to keep the peace, and it was held that it was not necessary, as in the ordinary case of an action for malicious prosecution, to aver that the proceeding before the magistrate was determined in favour of the plaintiff, such a proceeding being ex parte and the truth of the statement made by the application to the magistrate not being controvertible.

This case, however, was decided before the Summary Jurisdiction Act, 1879, s.25 of which altered the law as regards the procedure before justices for sureties of the peace and for good behaviour. The Summary Jurisdiction Acts now apply to such proceedings and the complainant and defendant and witnesses may be called and examined and cross-examined.

It was this alteration in the law which led Devlin, J., and subsequently the Court of Appeal, in the case of Everett v. Ribbands (4), to distinguish the decision in Steward v. Gromett (7) and to hold that the prosecution against the plaintiff having been successful, he having been ordered to enter into a recognisance and to find two sureties to keep the peace and to be of good behaviour for 12 months, or in default to serve a month's imprisonment, after he had had an opportunity of being heard, no action for malicious prosecution

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lay. During the course of his judgment Devlin, J. said ([1952] 1 K.B. at 116-117; [1951] 2 All E.R. at 820) that if the procedure in courts of summary jurisdiction was still the same as it was at the date of the decision in Steward v. Gromett (7), that decision and the reasoning behind it would be binding upon him, but that the change meant that the proceedings before justices are no longer ex parte, though before any order is made both sides are to be heard or to have an opportunity of being heard.

In upholding the judgment of Devlin, J., Somervell, L.J. said ([1952] 2 Q.B. at 202–203; [1952] 1 All E.R. at 825):

“[I]t seems to me clear, having regard to the change made by section 25 of the Act of 1879, that proceedings of this kind before justices are capable of being terminated in favour of the plaintiff. He can appear and give evidence and dispute what is said by the complainant, and he may be believed and, if so, no order will be made. The question is not, is it a prosecution? but, were the proceedings capable of being terminated in the plaintiff's favour?”

The appellant's counsel relied on an Australian case, Gilchrist v. Gardner (5), where a contrary view to that taken in Goddard v. Smith (6) was arrived at. Gilchrist v. Gardner (5) was an action for malicious prosecution in which the declaration alleged that the plaintiff appeared and was tried upon a charge of uttering a forged receipt, upon which the jury failed to agree, whereupon the AttorneyGeneral declined to proceed further against the plaintiff and he was discharged. It was held upon a demurrer to the declaration, firstly, that this amounts to a statement that a nolle prosequi had been entered, and, secondly, that the entry of the nolle prosequi was such a termination of the proceedings in the plaintiff's favour as to entitle him to bring the action. In that case Innes, J. said in his judgment (12 N.S.W.L.R. at 188):

"I have from the commencement of the case been of opinion that the plaintiff is entitled to our judgment, and I may go so far as to say that to hold otherwise would be a scandal upon the administration of justice. Were the entry of a nolle prosequi to debar the person charged from bringing an action for malicious prosecution he would be deprived not only of his opportunity of obtaining redress for his grievances, but of his only chance of clearing his character and establishing his innocence in the eyes of the world. He could not take any steps to get put on his trial again, and unless he is permitted

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to bring his action in the civil court he must exist for the rest of his days with the taint of an unrefuted charge attaching to him." [These words do not appear in the report of the case at 8 N.S.W.W.N. 21.]

The entry of a nolle prosequi by the Solicitor-General in the criminal proceedings we are concerned with on this appeal, in my view, put an end to that prosecution altogether. If the complainant wished to proceed further with the matter he would have to commence de novo.

I prefer the reasoning in Gilchrist v. Gardner (5) to that in Goddard v. Smith (6), and I am of the opinion that in a case where criminal proceedings have been terminated by the Attorney-General or other law officer entering a nolle prosequi justice requires that it be held to be an exception to the general rule that the plaintiff must prove, in an action for malicious prosecution, that the proceedings terminated in his favour, and that proof of the entry of a nolle prosequi in a criminal matter is such a termination of the proceedings in the plaintiff's favour that to hold otherwise would amount to a denial of justice. By so holding no injustice is done to the defendant in such a case because it is always open to him to prove reasonable and probable cause, and if he succeeds in so doing the plaintiff's action will fail.

For the reasons I have given I would allow this appeal with costs to be taxed, set aside the judgment of the court below and remit the action to the learned trial judge for him to determine the other issues raised on the pleadings in conformity with this judgment, the parties being at liberty to call such evidence as they may be advised. The costs of the first trial to abide the result of the further hearing.

COUSSEY, J.A. and KINGSLEY, J. (Sierra Leone) concurred.

Appeal allowed.

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PALMER v. STOOKE and ATTORNEY-GENERAL

SUPREME COURT (Smith, C.J.): January 12th, 1953
(Civil Case No. 497/52)

[1] British Commonwealth-colonies-royal prerogative-all legislation for ceded or conquered colony by royal prerogative-prerogative power to legislate for settled colony limited to setting up representative institution unless British Settlements Acts relied onColony of Sierra Leone settled colony: While the Crown has full power under the royal prerogative to legislate for a ceded or conquered colony unless it specifically gives up those rights, in the case of a settled colony the Crown's prerogative right is limited to the setting up of a constitution of representative institutions in the settlement, and having done so its power to legislate is finished unless it relies expressly or impliedly on the powers given to it by Parliament in the British Settlements Acts; and therefore, the Colony of Sierra Leone being a settled colony, the Crown can legislate for it by express or implied reliance on the British Settlements Acts (page 292, line 17-page 293, line 35).

[2] British Commonwealth-legislative competence of King in Council -colonies-all legislation for ceded or conquered colony by royal prerogative—prerogative power to legislate for settled colony limited to setting up representative institution unless British Settlements Acts relied on-Colony of Sierra Leone settled colony: See [1] above.

[3] British Commonwealth-legislative competence of King in Council -ultra vires and repugnancy-creation of Legislative Council for Colony of Sierra Leone not ultra vires Sierra Leone (Legislative Council) Order in Council, 1951: In the preamble and enacting clause of the Sierra Leone (Legislative Council) Order in Council, 1951, the general words "and of all other powers enabling Him in that behalf" are not to be construed as being eiusdem generis with the preceding more specific words "the powers vested in Him by the Foreign Jurisdiction Act, 1890" so as to restrict the authority of His Majesty in Council to the Foreign Jurisdiction Act, 1890; and therefore the creation of a Legislative Council for the Colony of Sierra Leone by the Order in Council is empowered by the British Settlements Acts and is not ultra vires the legislative competence of His Majesty in Council (page 290, line 40, page 291, line 6; page 293, line 39-page 294, line 5).

[4] Civil Procedure-discontinuance and dismissal-dismissal in proceedings under O.XXI of Supreme Court Rules, 1947-frivolous and vexatious action may be affected in part or as whole-court may consider pleadings only: Where a defendant seeks to have the action against him dismissed on the ground that it is frivolous and

S.C.

vexatious, he can apply under O.XXI of the Supreme Court Rules,
1947, in which case only the pleadings can be looked at in coming
to a decision, or he can apply under the court's inherent jurisdiction
to strike out, stay or dismiss any actions or claims which are
held to be frivolous and vexatious, in which case the court may
consider not only the pleadings but also any other allegations or
admissions before it; but in either situation the court may make
its order referable to the action as a whole, if the plaintiff is shown
to have a completely hopeless case, or, if it thinks that some of
his claims have some hope of success or if there are some facts
still to be determined in regard to some of the claims, merely to
those parts of the action which are hopeless (page 288, line 28—
page 289, line 20).

[5] Civil Procedure-discontinuance and dismissal-Supreme Court has
inherent jurisdiction to strike out, stay or dismiss action which must
fail-frivolous and vexatious action may be affected in part or
as whole-court may consider pleadings and any other allegations
or admissions: See [4] above.

[6] Constitutional Law-Governor-administrative authority-ultra vires and repugnancy-not ultra vires for Governor to carry out provision for payment of salary to Leader of Opposition: The Legislative Council is the proper body to decide what funds should be raised for the public service and how they should be spent; and it is competent therefore to make provision for the payment of salaries or honoraria to its members or offices created and recognised by constitutional convention, including the Leader of the Opposition, which the Governor can include, after appropriation, in his general warrant to the Accountant-General (page 296, lines 4-11).

[7] Constitutional Law-Legislative Council-creation-creation for Colony of Sierra Leone not ultra vires Sierra Leone (Legislative Council) Order in Council, 1951: See [3] above.

[8] Constitutional Law-Legislative Council-political parties—formation of political party cannot be prevented by courts or Governor unless illegal body: No court can or should interfere in matters relating to the grouping of individual members of the Legislative Council into political parties, unless a party is declared an illegal body; and, subject to the same qualification, the Governor, whatever control he has over official members of the Council, cannot prevent other members forming themselves into political parties if they so wish (page 294, lines 8-31).

[9] Constitutional Law-Legislative Council-salaries of membersCouncil proper body to provide for payment of salaries to members including Leader of Opposition: See [6] above.

[10] Constitutional Law-party system-Legislative Council-formation of political party in Legislative Council cannot be prevented by courts or Governor unless illegal body: See [8] above.