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REV. S. S. ODONKOR AND ANOTHER
V.
E. P. ALLOTEY AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
4TH DAY OF DECEMBER, 1941
2PLR/1941/34 (WACA)
OTHER CITATION(S)
2PLR/1941/34 (WACA)
(1941) VII WACA PP. 160-163
LEX (1941) – VII WACA PP. 160-163
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
STROTHER-STEWART, J.
BANNERMAN, J.
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BETWEEN: [CONSOLIDATED CASES]
1. REV. S. S. ODONKOR, PASTOR-IN-CHARGE OF THE PRESBYTERIAN CHURCH AT ACCRA, FOR AND ON BEHALF OF THE MEMBERS OF THE PRESBYTERIAN CHURCH, ACCRA — Plaintiff-Respondent
2. A. B. NARTEY — Co-Plaintiff-Respondent
AND
1. E. P. ALLOTEY — Defendant
2. YAOTELEY YAOTEY — Co-Defendant-Appellant
AND
A. B. NARTEY — Plaintiff-Respondent
AND
YAOTELEY YAOTEY — Defendant-Appellant
AND
Suit No. 24/40
A. B. NARTEY — Plaintiff-Respondent
AND
AYIKAI TEIKO, ACTING GBESE MANCHE, REPRESENTING THE STOOL OF GBESE, ACCRA — Defendant-Appellant.
AND
Suit No. 25/40
E. C. A. SACKEY — Plaintiff
AND
J. T. N. YANKAH — Defendant
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REPRESENTATION
Frans Dove — for Appellant
J. Henley Coussey — for second Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Claim for declaration of title and possession/damages — Proof of — Allegation of crime — How treated
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CASE SUMMARY
In the first suit judgment given for first plaintiff for declaration of title and possession and for second plaintiff for declaration of title and £50 damages for trespass. The appellants stated that inasmuch as the fraud alleged by them against second plaintiff was criminal the Court was wrong in proceeding with the hearing without directing that the criminal cause be first investigated. Appellants also stated that the judgment was against the weight of evidence and that in any event no trespass was proved.]
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
(i) There is nothing either in the principle or in the rule of law which makes it incumbent upon a Court to stop the case for a prosecution to be instituted when a defendant sets up as part of his defence an alleged felony by the plaintiff.
(ii) Judgment of trial Court in agreement with evidence and there is ample evidence of trespass.
Appeal dismissed.
Case cited:
Midland Insurance Co. v. Smith 1881, 6 Q.B.D. 561.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, STROTHER-STEWART AND BANNERMAN, J.J.
In these consolidated cases the learned Chief Justice who tried them, dismissed the plaintiff’s claim in Suit No. 25/ 1940 with costs. There is no appeal in this case. In Suit No. 24/1940 he gave judgment for the plaintiff (a) for a declaration of title to an area on plan “WW” which he described in detail and (b) £100 damages for trespass.
The Acting Gbese Manche filed an appeal against this judgment, but since doing so a substantive Gbese Manche has been installed (though not yet gazetted) and Ayikai Teiko consequently no longer represents the Gbese Stool and has no standing to prosecute the appeal. The newly installed Gbese Mantse, though entitled, if he wished to get himself substituted for Ayikai Teiko and thereafter to prosecute the appeal, has not seen fit to do so, and consequently has not appeared upon the appeal. The appeal in this suit is accordingly struck out with costs against the Stool assessed at £25 8s 0d.
Suit No. 26/1940 comprises both suits Nos. 196/34 and 145/35 in the Tribunal of the Paramount Chief of the Ga State. They were consolidated in the Native Tribunal and upon transfer in the Divisional Court were given the one number 26/1940.
In that suit the learned Chief Justice gave the following judgment:-
“(1) Judgment for Rev. S. S. Odonkor for and on behalf of the Presbyterian Church, Accra, for a declaration of title to the plot edged brown which lies within plot edged green on Exhibit ‘B’ and for possession. The Presbyterian Church are awarded costs to be taxed against E. P. Allotey and A. B. Nartey is awarded costs to be taxed against E. P. Allotey,
“(2) Judgment for plaintiff A. B. Nartey against Yaoteley Yaotey for (a) declaration of title for the area shown on the plan Exhibit “WW” from the point of intersection by G.S./Y.Y. 16 and G.S./ Y. Y. 17 along the green line to where it is intersected by the red line theme along the red line to A.B.N. 6 thence to A.B.N. 5 thence to G.S./Y.Y. 17 thence down the blue line to the green line (initialled in red by me),
(3) £50 damages for trespass.”
It is clear that (1) refers to the Native Tribunal Suit numbered 196/34 and (2) and (3) refer to the Native Tribunal Suit 145/35.
Against this judgment the defendant Yaoteley Yaotey has appealed to this Court. Sixteen grounds of appeal were filed, but some of them related only to the appeal of the Acting Obese Mantse. Many of them were not argued and some were abandoned in the course of argument. The only ones which merit serious consideration are dealt with hereafter.
Grounds 15 and 16 read as follows:-
“15. Inasmuch as the fraud altered by the appellants against A. B. Nartey was criminal the Court was wrong in proceeding with the hearing of the cases without directing that the criminal case should be first investigated and determined by a competent Court.
“16. That the Court was not competent to try such criminal charge and its decision thereon was contrary to law procedure and practice.”
In putting forward these grounds it is clear that counsel for the appellant has entirely misunderstood the principle upon which is founded the rule of law that where an injury amounts to an infringement of the civil rights of an individual, and at the same time to a felony the right of redress by action is suspended until the party inflicting the injury has been prosecuted, and public justice thus vindicated.” (I Halsbury (2nd Ed.) paragraph 44). The principle upon which the rule is founded is authoritatively stated by Watkin Williams, J. in the following passage from his judgment in Midland Insurance Co. v. Smith (1881) 6 Q.B.D. p. 561 at 568:
“The history of the question shows that it has at different times and by different authorities been resolved in three distinct ways. First, it has been considered that the private wrong and injury has been entirely merged and drowned in the public wrong, and therefore no cause of action ever arose or could arise. Secondly, it was thought that although there was no actual merger, it was a condition precedent to the accruing of the cause of action that the public right should have been vindicated by the prosecution of the felon. Thirdly, it has been said that the true principle of the common law is that there is neither a merger of the civil right, nor is it a strict condition precedent to such right that there shall have been a prosecution of his private suit to the neglect and exclusion of the vindication of the public law. in my opinion this last view is the correct one.”
There is nothing either in the principle or in the rule which makes it incumbent upon a Court to stop the case for a prosecution to be instituted when a defendant sets up as part of his defence an alleged felony by the plaintiff. If such were the case it would be always open to a defendant to gain time by making the necessary allegation. There is no substance in these two grounds of appeal. Nor have we been able to find any ground of law which has any substance in any of the other grounds of appeal which were argued.
There remain the contentions that the judgment was against the weight of evidence and that in any event no trespass was proved against Yaoteley Yaotey and the Court was wrong in awarding damages against her.
As to the facts, we should not disturb the findings of the trial Court unless they were clearly shown to be wrong; but so far from this being the case, after listening to the able argument of the appellant’s counsel and carefully considering all the evidence we and ourselves in entire agreement with the learned Chief Justice in all his findings and we find ample evidence upon which he could hold that Yaoteley Yaotey had committed trespass so as to justify his award of damages against her.
The appeal of Yaoteley Yaotey is accordingly dismissed with costs assessed at £47 14s 8d in favour of respondent A. B. Nartey and £32 16s 8d in favour of respondent S. S. Odonkor.
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