NETTEY AND OTHERS vs. INSPECTOR-GENERAL OF POLICE AND OTHERS [1991]DLHC2045

Date	1991-09-30
Suit No.
Citation No.	[1991]DLHC2045

LUTTERODT J.

NII APONSAH FOR THE PLAINTIFFS.

BALDWIN ADDO FOR THE DEFENDANTS.

[1991]DLHC2045
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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:#00B0F0">NETTEY AND OTHERS<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:#00B0F0">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:#00B0F0">INSPECTOR-GENERAL OF POLICE AND OTHERS<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1992] 2 GLR 18<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="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 30
SEPTEMBER 1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NII APONSAH FOR THE PLAINTIFFS.<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">

BALDWIN ADDO FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT OF LUTTERODT J.<o:p></o:p>The plaintiffs instituted this action against the defendants for
the reliefs indorsed on the writ. The three defendants not only filed a
statement of defence but counterclaimed for two reliefs, namely a declaration
that leases granted to certain persons by the plaintiffs were void and of no
legal effect, and also for the ancillary relief of perpetual injunction to
restrain the plaintiffs from interfering with or disposing of the lands known
as the Ablekuma lands.<o:p></o:p>At the hearing of an application for interim injunction filed by
the third and fifth defendants, the plaintiffs’ counsel raised a preliminary
objection in law. His argument was that in so far as the defendants themselves
admit that the plaintiffs are being prosecuted for the criminal offence of felony
before the public tribunal with respect to these same lands, the civil action
by their counterclaim is not maintainable and therefore the application for
interim injunction which is based on the substantive action is also not
maintainable.<o:p></o:p>The view, however, of the defendants’ counsel is that there are
exceptions to this general rule in Smith v. Selwyn [1914] 3 K.B. 98, C.A. More
particularly they argue that first, since the charge the plaintiffs are facing
is one of stealing family funds realised out of the sale of these family lands;
secondly, when the defendants set up their defence and counterclaim they
applied for further and better particulars; and lastly, since the plaintiffs
are continuing with the felonious acts complained of and the public tribunal is
certainly not seised with jurisdiction to grant this interim relief they are
seeking, they are in equity entitled to this restraining order, and what could
be stayed if anything at all, should be the main trial.<o:p></o:p>In a ruling I delivered in the case entitled Kufour v. Boadu, High
Court, Accra, 18 September 1991, unreported, I had the opportunity to discuss
the scope of this rule in Smith v. Selwyn (supra). The following textbooks:
Salmond on the Law of Torts (14th ed.) by R. F. V. Huston; Halsbury’s Laws of
England (3rd ed), Vol.1 and Winfield on Tort (6th ed) by T. Elles Lewis, all
deal with the subject. Salmond does so in depth and states the exceptions to
this general rule.<o:p></o:p>The authors are agreed however that it is a rule designed to
protect the interest of the public. It is intended to force persons who have
suffered both a felony and a tort not to be content merely with obtaining
redress in the courts and forgetting entirely their obligation to prosecute the
claim. This is the policy reason for the rule. Salmond for example agrees with
the learned Lord Wright in Rose v. Ford [1937] 3 All E.R. 359 at 371, H.L. that
the rule is an anachronism. I certainly hold the same views, given the fact
that now the prosecution of criminal cases are done by the public prosecutor
and not the private person. Private prosecution is a thing of the past and
certainly unknown in the case of felonies. In my view, this alone is sufficient
to dispose of the objection that until the matter before the tribunal is
disposed of, this civil matter ought not to proceed.<o:p></o:p>But then there are equally other compelling reasons why this
argument cannot hold. In this instant case, this action which precipitated the
defendants’ filing of the defence and moving for this interlocutory relief was
initiated by the plaintiff’s and not the defendants. Certainly the plaintiffs
are not saying that when the defendants who were sitting down and minding their
own business were served with the writ, they ought not to have entered a
defence and counterclaimed where they thought necessary. If they are entitled
so to do then they are certainly also entitled to take any further steps and/or
applications like the instant one, that would ensure that justice is done and
for example, that the status quo is maintained until the final hearing and
determination of the substantive suit.<o:p></o:p>I do not see on what basis I ought to stay the counterclaim and
proceed to determine the claim only, for the rule as I have maintained applies
only where the plaintiff’s i.e. the one who issued the action, is also the
complainant in the criminal action. So that I would think that where as in this
instant case, the party against whom the rule is being invoked did not initiate
the proceedings but was compelled by the opponent to join the proceedings, the
rule ought not to apply. I do not see how the rule can or ought at the instance
of that person be invoked against the defendant.<o:p></o:p>The facts show clearly that the plaintiffs herein are rather the
accused and not the complainants in the criminal action before t</main>