BOATENG VII vs. YEBOAH AND OTHERS [1960]DLHC5349

Date	1960-02-08
Suit No.
Citation No.	[1960]DLHC5349

ACOLATSE J.

KWAW-SWANZY FOR PLAINTIFF

KORANTENG ADDOW FOR DEFENDANTS

[1960]DLHC5349
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">BOATENG VII<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">YEBOAH AND OTHERS<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">[1960] GLR 17&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 8TH FEBRUARY, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

KWAW-SWANZY
FOR PLAINTIFF. <o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

ACOLATSE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
ACOLATSE J.<o:p></o:p>(His lordship stated the facts and continued).<o:p></o:p>The evidence led before me by the plaintiff was that the three
defendants had appeared before arbitrators at the Ahenfie in Abene upon a
complaint lodged by the plaintiff in December, 1957, the complaint being that
they had offended him by paying dues to the Adontenhene of Abetifi without his
(the plaintiff’s) consent. The Korantenhene presided at the arbitration; the
plaintiff did not sit thereon. The defendants, with others, were held liable by
the arbitrators, and in consequence the defendants made an apology to the
plaintiff in the presence of the elders. According to custom they paid
pacification fees willingly, and provided Schnapps which all drank. On December
14, 1957, however, the defendants addressed to the Adontenhene of Abetifi a
letter in which they complained of the pacification fees which they had had to
pay at the arbitration. They alleged that the only accusation against them had
been that they had contributed voluntary subscriptions towards the maintenance
of the Abetifi School. “Unless Nana” (i.e. the Adontenhene) “has another means
of redress for us we will beg that Nana reimburse us of the monies, as it is
for your sake that such fines were inflicted on us.”<o:p></o:p><o:p>&nbsp;</o:p>I am satisfied from the evidence on record—and the point is not in
dispute—that the defendants preferred (by means of a private prosecution,
assisted by their counsel) a criminal charge against the plaintiff before a
judicial officer, upon which complaint the plaintiff, after a preliminary
investigation, was committed for trial at the assizes to be held at Accra. The
question is, did the defendants act with reasonable and probable cause? They
had not made any complaint to the plaintiff (or to the elders who sat on the
arbitration) after the payment of the pacification fees, nor did they make any
complaint to the local native authorities. In their letter of December 14,
1957, to the Adontenhene they said that the reason why they had had to pay
pacification fees was that they had made “voluntary subscriptions towards the
maintenance of the Abetifi School.” The letter does not allege that the
plaintiff extorted the fees from each defendant by means of threats, to wit,
that if each failed to pay him the said fees he would eject each from his Hwehwee
land. Nor was any particularisation of threats used by the plaintiff provided
by the affidavit sworn by first defendant, (for himself and on behalf of the
other defendants) in support of the complaint to the police. The defendants
must have been informed by the police of the result of the investigation (i.e.
that no criminal offence was disclosed) and yet they persisted in the
prosecution of the plaintiff. I take into account the evidence that the
defendants are all of Abetifi and directly under the Adontenhene, and that at
material times there was bad feeling between the Adontenhene and the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>The case of Hicks v Faulkner ((1881) 8 Q.B.D.167) is an authority
on the nature of “reasonable and probable
cause”. In short, “there must be an honest belief of the accuser in the guilt
of the accused. Such belief must be based on a reasonable ground.”<o:p></o:p><o:p>&nbsp;</o:p>On the evidence as to what took place at the Ahenfie I find that
the defendants apologised and paid the pacification fees willingly to the
elders who sat on the plaintiff’s complaint. I find that the threats alleged in
the particulars of the offence charged against the plaintiff were not in fact
made. I therefore find that, in prosecuting the plaintiff under the
circumstances revealed in the evidence, the defendants acted without reasonable
and probable cause as defined by Hawkins, J. in Hicks v. Faulkner (supra).<o:p></o:p><o</main>