BUSANGAH vs. WIENAAH [1968]DLHC9281

Date	1968-12-16
Suit No.	[1968] GLR 1110
Citation No.	[1968]DLHC9281

ABOAGYE J.

J. K. POLLEY FOR THE APPELLANT.

A. FORSON FOR THE RESPONDENT

[1968]DLHC9281
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													<main id="main" class="content" style="min-height: 60rem" >BUSANGAH<o:p></o:p>vs.<o:p></o:p>WIENAAH<o:p></o:p>[HIGH
COURT, SEKONDI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

[1968]
GLR 1110&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; &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:
16TH DECEMBER, 1968<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J.
K. POLLEY FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

A.
FORSON FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

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

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><h2 style="margin-top:.05pt;margin-right:0cm;margin-bottom:0cm;margin-left:
0cm;margin-bottom:.0001pt;line-height:115%">JUDGMENT OF ABOAGYE J.<o:p></o:p></h2>This
is an appeal by the defendant (hereinafter referred to as the appellant)
against the judgment of Mr. J.<o:p></o:p>K.
Amponsah, District Magistrate Grade II, Takoradi, given in favour of the plaintiff
in an action for damages for adultery.<o:p></o:p>The
plaintiff’s case was based upon a report made to him by his wife that some time
in August 1966, while he was working at the Prestea Gold Mines, the appellant,
who was his landlord at Sekondi, carnally knew his (plaintiff’s) wife in the
plaintiff’s room at Sekondi against her will. The appellant denied the
accusation made against him and, therefore, refused to pacify the plaintiff.
The latter then commenced this suit against him claiming N¢50.00 damages for
adultery. After hearing evidence on both sides the magistrate gave judgment for
the plaintiff and awarded him N¢14.40 and one bottle of whisky as “satisfaction
fee” and N¢15.50 costs.<o:p></o:p>At
the hearing of this appeal, learned counsel for the appellant attacked the
magistrate’s judgment on two main grounds, namely:<o:p></o:p>“(1)&nbsp;&nbsp;
That the allegation made against the appellant being one of rape, a
felony, the plaintiff should not&nbsp;&nbsp;&nbsp; have
commenced a civil action against him without first getting him prosecuted
criminally; and<o:p></o:p>(2)
That the judgment is against the weight of evidence.”<o:p></o:p>In
support of the first ground, learned counsel cited the case of Smith v. Selwyn
[1914] 3 K.B. 98, C.A. and the local case of Cheetham v. Bannerman (1881)
Sar.F.L.R. 23. In the latter case, Bailey J. delivering the judgment of the
Full Court, said that when a plaintiff in a civil case had a criminal remedy
for the same offence he could not prosecute his civil action until the
defendant had been prosecuted, convicted and sentenced. That decision appears
to have made it mandatory for the victim of a felonious act to get the felon prosecuted
before obtaining civil redress. But in the much later case of Smith v. Selwyn
(supra) it was held by the English Court of Appeal that in such a case the court had a discretion
to stay the civil action until the felon has been criminally
dealt with. In that case where defendant was alleged to have drugged the first
plaintiff’s wife (the second plaintiff) and had either had, or attempted to
have, sexual intercourse with her, Kennedy L.J. had this to say at p. 103:<o:p></o:p>“It is not easy to find a
statement in any case as to what is the course which the Court ought to adopt
in a matter of this kind. Some of the decisions are not easy to reconcile ...
In my opinion the result of them is this. It is in the power of the Court to
grant a stay, and it is the duty of the Court to consider in each case whether
in the circumstances it will grant a stay, if it sees that the claim for
damages is based upon a felony committed by the defendant.”<o:p></o:p>It
is in the interest of the State or the public that felons should be exposed and
made to suffer certain civil disabilities and so a person who suffers as a
result of a felonious act of another should not be allowed to let the felon
escape the tentacles of the criminal law by accepting compensation in a civil suit.<o:p></o:p>In
</main>