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JOHN MARK
V.
SAMPSON TOE
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST (GHANA)
20TH DAY OF NOVEMBER, 1934
LEX (1934) – II WACA 170 – 171
OTHER CITATION(S)
2PLR/1934/6 (WACA)
(1934) II WACA PP. 170 – 171
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
YATES, ACTING C.J., GOLD COAST (GHANA)
AND GRAHAM PAUL, J.
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BETWEEN
JOHN MARK – Plaintiff-Respondent
AND
SAMPSON TOE – Defendant-Appellant
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REPRESENTATION
P. A. Renner for Appellant
V. L. Buckle for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW:- Action for damages for assault and battery – Where the defendant has already been charged criminally in respect of the same assault, convicted summarily and adjudged by the Court under section 74(2) of the Criminal Code to make compensation to the person injured, i.e., the plaintiff in the civil proceedings – Where the plaintiff did not wish such compensation to be adjudged to be made in the criminal prosecution and has since refused to accept the money – Legal effect – Whether plaintiff is debarred from bringing an action claiming damages
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PRACTICE AND PROCEDURE ISSUE(S)
INTERPRETATION OF STATUTES:- Ambiguous provision – Principles the court follow in resolving same – Intention of legislature – Doubt in the conflict of rights between the parties – How properly resolved
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
Court below was right in holding that plaintiff was debarred from bringing his action.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, YATES, ACTING C.J., GOLD COAST AND GRAHAM PAUL, J.
This is a case stated by Deane, C.J., under section 6 of the West African Court of Appeal Ordinance, 1929, reserving for the consideration of this Court a question of law which arose before him upon his hearing of an appeal from the Court of the Police Magistrate at Accra.
The point at issue is whether a plaintiff is debarred from bringing an action claiming damages for assault and battery by the fact that the defendant has already been charged criminally in respect of the same assault, convicted summarily and adjudged by the Court under section 74 (2) of the Criminal Code to make compensation to the person injured, i.e., the plaintiff in the civil proceedings, although the plaintiff did not wish such compensation to be adjudged to be made in the criminal prosecution and has since refused to accept the money, which has been paid into Court by the defendant in order that he may avoid imprisonment in default.
The question turns upon the true interpretation to be put upon section 75 of the Criminal Code which reads as follows:
“Where any person, who is injured by any offence punishable under this code, or under any other statute, receives compensation for such injury under the order of the Court, or where the offender, having been ordered to make such compensation, suffers imprisonment for non-payment thereof, the receipt of such compensation or the undergoing of such imprisonment, as the case may be, shall be a bar to any action for the same injury; but, except as aforesaid, nothing in this code shall bar the action of any person in respect of any injury, sustained by him or his property”.
The learned Chief Justice held that that section debarred the plaintiff from bringing the action and allowed the appeal against the decision of the Police Magistrate in a contrary sense, reserving and the question, however, for the consideration of this Court.
We agree with the opinion of the Chief Justice and endorse the reasons he gives therefor. The wording of the section is certainly ambiguous and requires judicial interpretation. In giving such interpretation there are two principles to be followed; the first is that the aim must be to ascertain the real intention of the legislature and the second is that if there is any doubt in the conflict of rights between the parties, that doubt must be resolved in favour of the party penalised, because sections 74 and 75 must be read together and section 74 is a penal enactment, the order for making compensation being the infliction of a punishment (see section 73).
The whole question turns on the meaning of the words “receives compensation”. Have they the restricted meaning of actual physical receipt of money or have they a wider meaning so as to include an award giving the opportunity to receive payment?
It seems to be the obvious intention of the two sections that in appropriate cases, the Court should be able to avoid multiplicity of proceedings by dealing at one and the same time with both the public wrong and the private injury, and should have power to protect a convicted person from undue harshness in pursuing him on the part of the person injured.
We therefore think that the wider interpretation should prevail and that the learned Chief Justice was right in allowing the appeal before him on the ground that by section 75 the plaintiff was debarred from bringing his action.
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