PIETERSE vs. AMANKRAH AND ANOTHER [1981]DLHC2168

Date	1981-03-27
Suit No.
Citation No.	[1981]DLHC2168

OSEI-HWERE J.

DE GRAFT-AIDOO FOR THE PLAINTIFF.

SHORT FOR THE DEFENDANT.

[1981]DLHC2168
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													<main id="main" class="content" style="min-height: 60rem" >PIETERSE <o:p></o:p>vs. <o:p></o:p>AMANKRAH AND ANOTHER <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1982-83] GLR 785<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
27 MARCH 1981<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DE GRAFT-AIDOO FOR THE PLAINTIFF. <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;
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OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The first
plaintiff witness has given evidence-in-chief to the effect that the plaintiff
and the first defendant were recently arraigned before the district court on
charges of careless driving and negligently causing harm and that he knew how
the plaintiff pleaded. Counsel followed up by asking him to tell the court the
explanation the plaintiff gave in the court room. To this question the
defendants’ counsel has raised an objection on the ground that proceedings in a
criminal action are inadmissible in a subsequent civil action on the same facts
and quoted Hollington v. Hewthorn (F.) &amp; Co., Ltd. [1943] 1 K.B. 587, C.A.
in support. Besides, he argued that as the witness did not give the
explanation, he could not see how he could be called upon to give that
evidence. In reply, the plaintiff’s counsel invited the court not to equate
irrelevancy with inadmissibility because evidence may be admissible although
irrelevant. To him, Hollington v. Hewthorn (F.) &amp; Co., Ltd. (supra) only
deals with objection in tendering criminal proceedings. According to counsel
the Hollington v. Hewthorn (F.) &amp; Co., Ltd. (supra) rule is now qualified
by the Evidence Decree, 1975 (NRCD 323). As the witness is to testify on what
took place before him, he contended that the evidence is admissible.<o:p></o:p><o:p>&nbsp;</o:p>The rule
of evidence of Hollington v. Hewthorn (F.) &amp; Co., Ltd. postulates that a
conviction in a criminal court cannot be used as evidence, not even prima facie
evidence, in a civil case. This is an English rule which has found its way into
our jurisprudence. In England, the judges have cried for an alteration of the
rule because it works out inconvenience: see for instance Goody v. Odhams Press
Ltd. [1966] 3 W.L.R. 460 and Barclays Bank, Ltd. v. Cole [1967] 2 W.L.R. 166.
It was, indeed, pointed out in the latter case by Denning M.R., the most
vociferous proponent for a change of the rule, that in the United States of
America in similar circumstances, it has been held that a conviction is not
only receivable but is conclusive evidence: see Hurtt Trustee v. Stirone 416
Pa. 493 (1965).<o:p></o:p><o:p>&nbsp;</o:p>Section
127 (1) of NRCD 323 now happily reverses the rigid rule of Hollington v.
Hewthorn. That section stipulates that evidence of a final judgment in a
criminal action of a court in Ghana adjudging a person guilty of a crime is
admissible when offered to prove any fact essential to the judgment. A
conviction is such a fact. This disposes of the controversy about the rule in
Hollington v. Hewthorn. In regard to the specific objection against the witness
telling the court what the plaintiff explained on his arraignment, I am of the
view that as the witness is not the declarant within the meaning of section 116
of the NRCD 323, he cannot be allowed to give the explanation especially as he
cannot be cross-examined on it. I would sustain the objection.<o:p></o:p>

<o:p>&nbsp;</o:p></main>