ANARFI vs. ARTHUR [2002]DLHC1163

Date	2002-02-14
Suit No.
Citation No.	[2002]DLHC1163

DOTSE J

M Y H ACHEAMPONG (MISS) FOR THE PLAINTIFFS-RESPONDENTS.

EBOW QUASHIE (WITH HIM KUDZEDZI) FOR THE DEFENDANTS-APPLICANTS.

[2002]DLHC1163
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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">ANARFI<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">ARTHUR<o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[2001-2002] 1 GLR 364<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: 14
FEBRUARY 2002<o:p></o:p>

</div>COUNSEL:<o:p></o:p>M Y H ACHEAMPONG (MISS) FOR THE PLAINTIFFS-RESPONDENTS.<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">

EBOW QUASHIE (WITH HIM KUDZEDZI) FOR THE DEFENDANTS-APPLICANTS. <o:p></o:p>

DOTSE J<o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Dotse J. <o:p></o:p>On 17 December 2002 learned counsel for the defendants,
Constantino Kudzedzi, raised a preliminary legal objection to the effect that
once the plaintiffs in the instant suit are facing a charge of stealing and or
conspiracy which is a felony before a court in Accra on initially the same
facts, the civil aspect of the matter which is before this court cannot proceed
until the completion of the criminal aspect.<o:p></o:p>Replying, learned counsel for the plaintiffs, Mrs Acheampong,
submitted that there is no rule of law or procedure that you cannot proceed
with the criminal and civil aspect of a case contemporaneously.<o:p></o:p>On 18 December 2002 I overruled the said objection and stated that
I will deliver my detailed reasons later. By the said ruling, I must be
understood to have decided that the instant suit can proceed at the same time
that the prosecution of the criminal case is proceeding.<o:p></o:p>Admittedly, the facts upon which the plaintiffs have mounted the
instant action are the same facts which have given rise to the prosecution of
the plaintiffs on a charge of conspiracy for stealing whilst I understand one
Emmanuel Kofi Nkobi has been charged with stealing. I have in an earlier ruling
delivered on 12 November 2002 deleted and struck out the name of the said
Emmanuel Nkobi as a plaintiff in the instant suit.<o:p></o:p>In the submissions made to me in support of the contention,
counsel for the defendants relied on the case of Badu v Boakye [1975] 1 GLR 283
wherein Osei-Hwere I (as he then was) held in holding (2) of the headnotes as
follows:<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">“Where a tort was also a felonious crime, such as the offence of
causing harm under the Criminal Code, 1960 (Act 29), the right of redress by
civil action could not be maintained until the crime had been prosecuted, and
where the allegations clearly pointed to a felonious crime, the plaintiff
should not be permitted to state a cause of action on a misdemeanour without
alleging the felony.”<o:p></o:p>In the above case, the plaintiff sued the defendant, her paramour,
among other reliefs, on a claim for general damages for assault and battery and
alleged that it was the defendant who caused harm to the plaintiff which
necessitated a surgical operation. This was the background to the above
decision. The High Court per Osei-Hwere J (as he then was) relied also on the
Halsbury’s Laws of England (3rded), Vol 1, pp 11-12.<o:p></o:p>I have had the benefit of reading the judgment in the Badu v
Boakye case (supra) as well as the passage in the Halsbury’s Laws of England
referred to. Admittedly, Osei-Hwere I (as he then was), was in fact a judge
whom I had a lot of respect for due to his incisive and well-thought out and
reasoned judgments. I am however of the considered view that the principle of
law stated in the Badu v Boakye case (supra) cannot be of general application.
Indeed, to allow it to have such an application will lead to incongruous
results. For example, think of a situation where A, has been seriously injured
in a road traffic accident; but B the driver has according to and upon either
the result of the vehicle examiner or the investigator’s report at the scene of
accident decided to close the docket. This would mean that there will be no
prosecution and the docket would be closed as accidental. As a matter of fact,
I have in my practice as a lawyer come across countless examples of police
reports on accidents where the docket has been closed with no prosecution.
Should victims of such cases be denied their rights when they institute civil
claims for damages? I think not. What about instances where a case is both a
felony and a tort, and the victim even though has reported the case to the
police, because he has no power and control over the prosecution of the
criminal case has to wait for any length of time for the police, eg when the
police decide to be dormant.<o:p></o:p>