ALHASSAN vs. DAKORA [1989]DLHC521

Date	1989-03-23
Suit No.
Citation No.	[1989]DLHC521

BENIN J.

R. C. A. AZUMAH FOR THE APPELLANT.

S. B. DY-YAKAH FOR THE RESPONDENT.

[1989]DLHC521
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													<main id="main" class="content" style="min-height: 60rem" >ALHASSAN <o:p></o:p>vs. <o:p></o:p>DAKORA <o:p></o:p>[HIGH COURT, TAMALE]<o:p></o:p>[1989-90]1 GLR 197<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">

DATE:
23 MARCH 1988<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;
padding:0in 0in 0in 0in">

R. C. A. AZUMAH FOR THE APPELLANT.<o:p></o:p>

S. B. DY-YAKAH 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:0in 0in 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF BENIN J.<o:p></o:p>The
plaintiff-appellant herein issued out a writ of summons at the District Court
Grade 1, Tamale. By the particulars of claim, the appellant claimed against the
defendant-respondent damages for false imprisonment and malicious prosecution.
The court did not order the parties to file any pleadings so the case proceeded
to trial summarily under Order 25, r.1 of the Courts Ordinance, Cap.4 (1951
Rev.). On the hearing date the plaintiff gave evidence on the events leading to
his arrest by the police, his subsequent detention and assault on him by the
police and finally his being unsuccessfully prosecuted at the District Court
Grade II, Tamale. He was cross-examined by counsel for the respondent who made
a submission under Order 40 of Cap. 4, which was replied to by counsel for the
appellant. The learned trial magistrate there and then accepted the submission
and non-suited the appellant and awarded ¢1,000 costs against him.<o:p></o:p><o:p>&nbsp;</o:p>At the
trial the appellant had testified that his arrest was caused by the respondent.
That when the respondent and the policeman came to look for him the first time
in order to arrest him, they met him absent and they left a message for him to
report to the police at a stated time. He did report himself to the police who
locked him up for some time. Thereafter the respondent in the company of one
named police corporal came to the station and identified him. The police
corporal who had come with the respondent started assaulting him (the
appellant) and it was then he mentioned the reason why he (the appellant) had
been arrested; and the reason being that he the appellant had been hired by a
Dagarti man to kill the respondent. The appellant was locked up in police cell
and later in prison custody for a week or so before he was put before court.
The respondent testified for the prosecution in that case in which the
appellant was charged with threat of death, but he was acquitted and
discharged. And according to the appellant, this prosecution has led to his
business partners ceasing to do any business with him. He also suffered damage
to his reputation before his in-laws. That was the plaintiff’s
evidence-in-chief. I shall quote the entire cross-examination at this stage:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Q. From
what you stated it was you who surrendered yourself to the police. A. That is
so. Q. The defendant gave evidence as witness only for the State (the
Republic). A. That is so. Q. You know that the defendant has no power over the
police? A. That is so.”<o:p></o:p><o:p>&nbsp;</o:p>Then
followed the submission that the appellant had led no satisfactory evidence to
entitle him to any judgment in the sense that the respondent only made a report
to the police who then took their own steps to prosecute the appellant. The
respondent only performed his civic duty by reporting a crime to the police.
His counsel submitted and I quote: “ Where witnesses are called this case will
not be made better for the plaintiff; he therefore is not entitled to judgment
and he should be non-suited under Order 40 of Cap. 4.”<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the appellant replied that the plaintiff had led satisfactory evidence in
that the police acted only at the instigation of the respondent and hence there
was a cause of action.<o:p></o:p><o:p>&nbsp;</o:p>This
whole appeal has turned up on what interpretation to put on Order 40 of Cap. 4
which has the following as its provision:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Non-suit
1. The Court may in any suit, without the consent of parties non-suit the
plaintiff; where satisfactory evidence shall not be given entitling either the
plaintiff or the defendant to judgment of the Court. 2. The Court may upon
motion for new trial or review of judgment, order a non-suit or judgment to be entered,
although no leave has been reserved at the trial. 3. Any judgment of non-suit,
unless the Court or Judge otherwise directs, shall have the same effect as
judgment on the merits for the defendant but in any case of mistake, surprise,
or accident, any judgm</main>