pg160
Injury
arnounting
to
Interfearance ,qement of civil
riqhts.and at same time
judgment of
a felony-Allegations in defence
of act of felony by plaintiff.
[ In the first suit judgment
given for first plaintiff for
declaration of title and
possession and for second
plaintiff for declaration of
title and £50 damages for
trespass. The appellants stated
that - inasmuch as the fraud
alleged by them against second
plaintiff was criminal the Court
was wrong in proceeding with the
hearing without directing that
the criminal cause be first
investigated. Appellants also
stated that the judgment was
against the weight of evidence
and that in any event no
trespass was proved.]
Held: (i) There is nothing
either in the principle or in
the rule of law which makes it
incumbent upon a Court to stop
the case for a prosecution to be
instituted when a defendant sets
up as part of his defence an
alleged felony by the plaintiff
.
pg161
(ii) Judgment of trial Court in
agreement with evidence and
there is ample evidence of
trespass.
Appeal dismissed.
Case cited:-
Midland Insurance Co. v. Smith
1881, 6 Q.B.D. 561.
Frans Dove
for Appellant.
Ofei Aweri
for first Respondent.
J.
Henley Coussey
for second Respondent.
The following joint judgment ws
delivered:-
KINGDON, C.J., NIGERIA,
S'rROTH.ER-STEWART AND
BANNERMAN, JJ.
In these 'consolidated cases the
learned Chief Justice who tried
them, dismissed the plaintiff's
claim in Suit No. 25/ HI40 with
costs. There is no appeal in
this case. In Suit No.
24/1B40 he gave judgment for the
plaintiff (a) for a
declaration of title to an area
on plan" WW " which he described
in detail and (b) .£100
damages for trespass. The
Acting, Gbese Manche filed an
appeal against this judgment,
but since doing so a 8ubstantive
Gbese Manche has been installed
(though not yet gazetted) and
Ayikai Teiko consequently no
longer represents the Gbese
Stool and has no standing to
prosecute the appeal. The newly
installed Gbese Mantse, though
entitled, if he wished. to get
himself substituted for Ayikai
Teiko and thereafter to
prosecute the appeal, has not
seen fit to do so, and
consequently has not appeared
upon the appeal. The appeal in
this suit is accordingly struck
out with costs against the Stool
assessed at .£25 8s Od.
Suit No,
26{1940 comprises both suits
Nos. 196/34 and 145{35 in the
Tribunal of the Paramount Chief
of the Ga State. They were
consolidated in the Native
Tribunal and upon transfer to
the Divisional Court were given
the one number 26/1940. In that
suit the learned Chief Justice
gave the following judgment;-
" (1) Judgment for Rev. S. S.
Odonkor for and. on behalf " of
the Presbyterian Church, Accra,
for a declaration of title to
the plot edged brown which I
lies " within plot edged green
on Exhibit ' B' and for .,
possession. The Presbyterian
Church are awarded " costs to be
taxed against E-. P. Allotey and
A. B. " Nartey is awarded costs
to be taxed against E. P. "
Allotey,
" (2) Judgment for plaintiff A.
B. Nartey against " Yaoteley
Yaotey for
(a)
declaration of title for the "
area shown on the plan Exhibit "
WW " from the
pg 162
"point of intersection by G.S./
Y.Y. 16 and " G.S./ Y.Y. 17
along the green line to where it
is .. intersected by the red
line thence along the red line
"to A.B.N. 6 thence to A.B.N.
ij
thence to "G.S./ Y.Y. 17 thence
down the blue line to the "
green line (initiated in red by
me),
•. (;3) £50 damages for
trespass."
It is clear that (1) refers to
the Native Tribunal Suit
numbered
W6j;34
and (2) and (3) refer to the
Native Tribunal Suit
14ij j35.
Against this judgment the
defendant Yaoteley YaoLey has
appealed L) this Court. Sixteen
grounds of appeal were filed,
but some of them related only to
the appeal of the Acting Gbese
Mantse. Many of them were not
argued and some were abandoned
in the course of argument. The
only ones which merit serious
consideration are dealt with
hereafter.
Grounds 15 and 16 read as
follows;-
" 15. Inasmuch as the fraud
alleged by the appellants "
against A. B. Nartey was
criminal the Court was " wrong
in proceeding with the hearing
of the cases "without directing
that the criminal case should "
be first investigated and
'determined by a competent) "
Court .
. " 16. That the Court was not
competent to trial such
"criminal charge and its
decision therefore , was "
contrary to law procedure and
practice."
In putting forward these grounds
it is dear that counsel for the
appellant has entirely
misunderstood the principle upon
which is founded the rule of law
that " where an injury amounts
to an " infringement of the
civil rights of an individual,
and at the same time to a felony
the right of redress by action
is suspended until the party
inflicting the injury has been "
prosecuted, and· public justice
thus vindicated." (I Halsbury
(2ncl Ed.) paragraph 44). The
principle upon which the rule is
founded is authoritatively
stated by Watkin Williams, J. in
the following passage from his
judgment in
Midland Insurance Ca. v. Smith
(1881) 6 Q.B.D. p. 561 at p. 568
=,-
"The history of the question
shows that it has at different
"times and by different
authorities been resolved in
three .• distinct ways. First,
it has been considered that the
private " wrong and injury has
been entirely merged and
'drowned in " the public wrong,
and therefore no cause of action
ever "arose or could arise.
Secondly, it was thought that, "
although there was no actual
merger, it, was a condition "
precedent to the accruing of the
cause of action that the "
public right should have been
vindicated by the prosecution "
of' the felon. Thirdly, it has
been said that the true
"principle of the common law is
that there is neither a
pg 163
"merger of the civil
right, nor is it a strict
condition .. precedent to such
right that there shall have been
a prosecution of the felon, but
that there is a duty imposed
upon the " injured person not to
resort to the prosecution of his
private .,.. suit to the neglect
and exclusion of the vindication
of the "public law. In my
opinion this last view is the
correct " one."
There is nothing either in the
principle or in the rule which
makes it incumbent upon a Court
to stop the case for a
prosecution to be instituted
when a defendant sets up as part
of his defence an alleged felony
by the plaintiff. If such were
the case it would be always open
to a defendant to gain time by
making the necessary allegation.
There is no substance in these
two grounds of appeal.. Nor have
we been able to find any ground
of law which has any substance
in any of the other grounds of
appeal which were argued.
There remain the contentions
that the judgment was against
the weight of evidence and that
in any event no trespass was
proved against Yaoteley Yaotey
and the Court was wrong in
awarding damages against her.
As to the .facts, we should not
disturb the findings of the
trial Court unless they were
clearly shown to be wrong; but
so far from this being the case,
after listening to the able
argument of the appellant's
counsel and carefully
considering all the evidence we
find ourselves in entire
agreement with the learned Chief
Justice in all his findings and
we find ample evidence upon
which he could hold that
Yaoteley Yaotey had committed
trespass so as to justify his
award of damages against her .
•
The appeal of Yaote]ey Yaotey is
accordingly dismissed with costs
assessed at £47 14s 8d in favour
of respondent A. B. Nartey and
£32 16s 8d in favour of
respondent S. S. Odonkor.
