Breach of Contract when
prosecution for felony might
lie-Duty of Court to ascertain
reason for
non-prosecution-Refusal to
Re1,iew-N 0 duty in private
person to institute prosecution
when Police and Law Office -
refuse to prosecute.
Held: Appeal allowed, judgment
of Court below set aside, and
judgment entered for plaintiffs.
The facts are fully set out in
the judgment.
K. A. Korsah
for Appellants.
C. F. Hayfron-Benjamin
for Respondent. The following
judgment was delivered.
KINGDON, C.J., NIGERIA.
This is an appeal from a
judgment of the Divisional Court
sitting at Cape Coast. The
plaintiffs claimed £8,114 6s.
6d. damages for breach of
contract. Of this sum £7,816 was
alleged to be cash deficiency, a
loss' sustained by plaintiffs
owing to defendant's negligence,
and £298 6s. 6d. expenses to
which the plaintiffs had been
put by defendant's negligence.
The Court below split its
judgment into two parts ordering
a non-suit as regards the £7,816
with costs to be taxed, and
giving judgment for the
defendant as to the £298 6s. 6d.
also with costs to be taxed. The
plaintiffs now appeal to this
Court against the non-suit and
the orders as to costs; they
acquiesced in the abatement of
their claim by £298 Ga. Gd.
The ground upon which the
learned Judge ordered the
non-suit was that, in his
opinion, the alleged negligence
was nothing more than
camouflage, the whole evidence
for the plaintiffs going to show
that the defendant had been
guilty of felony; and that no
prosecution of the defendant had
been instituted, and no
reasonable excuse shown for his
non-prosecution.
Up to the time of the delivery
of the judgment the Judge had
not apparently given any
indication of is view of the
evidence? or called upon the
plaintiffs for an explanation
of the non-prosecution. Upon
delivery of the judgment the
plaintiffs applied for a review
of the judgment upon the ground
that they had .a reasonable
excuse for not having prosecuted
the defendant, VIZ: .that the
police and the law officers had
not approved prosecution, and
craved leave to call evidence to
satisfy the Court in that
behalf. Upon hearing the
application the Judge refused to
hear the
evidence tendered, or to vary
his judgment except by adding to
that portion of it non-suiting
the plaintiffs the words"
liberty in " the plaintiffs to
bring a fresh action if they so
desire".
The plaintiffs now appeal upon
the following five grounds:
"1. Because the statement of
claim did not allege a felony as
its " basis
. "2. Because
the claim is not based on a
felony.
"3. Because the' judgment is
contrary to Law and Equity.
"4. The Court did not at any
stage of the proceedings call on
," the plaintiffs-appellants to
show reasonable excuse for not
having " prosecuted the
defendant.
"5. Because the Court in
awarding costs to
defendant-respondent " did not
exercise its discretion
judicially".
First as to the refusal of the
Judge to hear the evidence
'tendered upon the application
to review. I think he waa wrong
to refuse. It is true that the
plaintiffs might have foreseen
the possibility of the Court
taking the point it did and so
have called the evidence at the
trial, but to have done so would
have been rather illogical
without any indication from the
Judge as to the view he took;,
and I think it was as much due
to the Judge as to the
plaintiffs that the evidence was
not called, for it seems to me
that the Judge should at the
trial have asked the plaintiffs'
counsel why the plaintiffs had
not prosecuted. Then, no doubt,
the answer would have been given
and the evidence in support of
it adduced. It is the duty of a
Court to endeavour to do real
justice between the parties and
to get before it all the
evidence which is material, and
not, by keeping silence, to lead
one of the parties astray so
that the other becomes entitled
to a snatched judgment.
This Court has thought it
proper, in the interests of
justice, to hear the evidence
tendered, and that evidence has
satisfied me that the plaintiffs
had, in fact, reasonable excuse
for no - prosecution. This
evidence shows, that so far from
failing in their public duty,
the plaintiffs performed it with
the utmost zeal. They placed the
matter in the hands of the
police and pressed for a
prosecution to be instituted.
Rut the police, after making
investigations and consulting
the law officers, decided that
the evidence was not sufficient
to justify a prosecution. Not
satisfied with the decision the
plaintiffs' agent made a special
journey to Accra to press for
prosecution, but he was not
successful. What more could the
plaintiff;; do? In this country
the public very properly look to
the police to institute and
carry on prosecutions when a
public wrong has been committed.
The advice of the law officers
is the last word as to the
propriety of a prosecution. It
would in my view be wholly
unreasonable to hold that a
member of the public had failed
in his public duty because he
failed to institute a private
prosecution after the police. on
the advice of the law officers,
had refused to prosecute.
The trial Judge quoted in his
judgment the following passage
from the judgment of
Swinfen-Eady, L.J. in the case
of
Smith 17. Selwyn
(1914) 3 K.B. 98 and held
himself bound by it:-
"It is well established that
according to the law of
"England, where injuries are
inflicted on an "individual
under circumstances which
constitute " a felony, that
felony cannot be made the
found" action of a civil action
at the cost of the person
"injured against the person who
inflicted the "injuries, until
the latter has been prosecuted,
or "a reasonable excuse shown
for his non" prosecution".
This Court is equally bound by
the law thus expounded and by
its necessary implications so
that now that a reasonable
excuse for non-prosecution has
been shown, the prohibition
disappears, and there is nothing
to prevent this action from
being brought or the plaintiffs
from obtaining judgment if they
have proved their case.
As to whether they have proved
their case or not, I think it is
unnecessary to look further than
the following passage in the
trial Judge's ruling upon the
application to review:-
" I agree that this finding" (viz:
that the loss of £7,816 was
sustained by the plaintiffs as
the direct result of the 'act'
of the defendant) "would have
been " sufficient to entitle the
plaintiffs to judgment, had
"public justice been
vindicated".
I also agree, and I consider the
evidence so overwhelming that no
Court could possibly come to any
other conclusion.
It is abundantly clear that the
plaintiffs proved their case and
that, but for the point as to
non-prosecution being taken by
the Court, they would have been
given judgment in the Court
below.
Now that reasonable excuse for
non-prosecution has been shown,
the plaintiffs are, in my
opinion, entitled to judgment.
I am accordingly of opinion that
this appeal should be allowed,
that the judgment of the Court
below should be set aside, and
that judgment should be entered
for the plaintiffs for £7,816
and costs in this Court and in
the Court below.
DEANE, C .• L, GOLD COAST.
I concur.
WEBBER, C.J., SIERRA LEONE.
I concur.
Note.-The judgments of the Privy
Council follow at pages 70-81.