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APPIAH KWAMIE
V.
OMANHENE KOBINA NGANSAH II
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
5TH DAY OF FEBRUARY, 1953
APPEAL NO. 84/52
2PLR/1953/34 (WACA)
OTHER CITATION(S)
2PLR/1953/34 (WACA)
(1953) XIV WACA PP. 269 – 271
LEX (1953) – XIV WACA 269 – 271
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN:
APPIAH KWAMIE – Appellant
AND
OMANHENE KOBINA NGANSAH II – Respondent
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ORIGINATING COURT(S)
Appeal from decision of Magistrate
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REPRESENTATION
R. Brandford-Mensah — for Appellant
N. A. Ollennu — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW:- Action for damages for assault following a criminal case for criminal assault – Where plaintiff had been awarded a measure of compensation under the criminal proceeding – Whether operates as a bar to the civil suit – Criminal Code, sections 72(2), 72(3), 73 – Criminal Procedure Code, section 136 – Resolution of seeming conflict between the two sections
CRIMINAL LAW AND PROCEDURE:- Order made under the powers conferred on a Magistrate pursuant to section 136 of the Criminal Procedure Code – Applicability of the provisions of section 73 of the Criminal Code thereto – Sub-section (3) of section 72 of the Criminal Code – How properly treated
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CASE SUMMARY
Section 72(2) of the Criminal Code provides that “any person … convicted of a summary offence … may be adjudged … to make compensation … to any person injured by his offence”; section 72(3) provides that “any such compensation may be either in addition to or in substitution for any other punishment”; and section 73 of the Criminal Code provides that where the injured person receives compensation for the injury under the order of the Court or the offender suffers imprisonment for non-payment, that shall be a bar to any action for the same injury.
Section 136 of the Criminal Procedure Code enables the Court to order that the whole or any part of a fine imposed shall be applied “in the payment to any person of compensation for any loss or injury caused by the offence when substantial compensation is in the opinion of the Court recoverable by civil suit”; and sub-section (3) of the section provides that “at the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section”.
In the Court below the plaintiff claimed damages for assault against the defendant. The defendant had earlier been charged with causing harm to the plaintiff and on conviction sentenced to pay a fine; and the Magistrate directed a specified sum “out of the fine” to be paid to the plaintiff as compensation. The trial Judge thought there was a conflict between section 72 of the Criminal Code and section 136 of the Criminal Procedure Code, and held that in view of section 73 of the Criminal Code the award of compensation by the Magistrate was a bar to any civil action for the same injury. The plaintiff appealed, relying on section 136 of the Criminal Procedure Code.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. There is no conflict but a difference of intention: section 72 of the Criminal Code provides for the making of an order of compensation as a specific order made on its own, which is intended under section 73 to be a final adjudication on the matter.
2. section 136 of the Criminal Procedure Code provides that where the Court imposes a fine and is of opinion that substantial compensation is recoverable in a civil suit, the Court may order the fine or part of it to be paid to the injured person, and the section contemplates that he may sue and recover damages, the quantum of which shall have regard to what he may have received out of the fine. In this case the Magistrate acted under the said section 136 and section 73 of the Criminal Code did not apply.
Case cited:-
(1) Mark v. Toe, 2 W.A.C.A. 170.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The appellant sued the respondent claiming damages for assault. Prior to the institution of these proceedings the respondent was charged with intentionally and unlawfully causing harm to the appellant, an offence under section 196 of the Criminal Code (Cap. 9). He pleaded guilty to the charge, was duly convicted and sentenced to pay a fine of £17 10s. 0d. or ten weeks’ imprisonment with hard labour. After imposing the fine the Magistrate directed that £7 10s. 0d. “out of the’ fine” was to be paid to the appellant as compensation.
The learned trial Judge held that by virtue of the provisions of section 73 of the Criminal Code, the award of compensation made by the Magistrate was a bar to any civil action for the same injury and that the case was governed by the decision of this Court in Mark v. Toe (1).
That was a case in which the plaintiff had sued for damages for an assault in respect of which the defendant had already been charged criminally, convicted summarily and adjudged by the Court under section 74(2), now section 72(2), of the Criminal Code to make compensation to the plaintiff, and it was held that sections 72 and 73 of the Criminal Code must be read together, that section 72 is a penal enactment, the order for making compensation being the infliction of a punishment, and that it was the 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. In the circumstances of that case the Court ruled that the award of compensation under the provisions of section 72(2) of the Criminal Code was a bar to any further proceedings in respect of the same injury.
The relevant portions of section 72 and section 73 read as follows:-
“72. (2) Any person who is convicted of a summary offence punishable under this Code, or under any other law, may be adjudged by the Court to make compensation, not exceeding twenty-five pounds, to any person injured by his offence.
“(3) Any such compensation may be either in addition to or in substitution for any other punishment.
“73. 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.”
On behalf of the appellant it was submitted that the order in this case was not made under section 72(2) of the Criminal Code, but under the provisions of section 136 of the Criminal Procedure Code which enables the Court to order that the whole or any part of a fine imposed by it shall be applied “in the payment to any person of compensation for any loss or injury caused by the offence when substantial compensation is in the opinion of the Court recoverable by civil suit”, and that it is clear from the wording of sub-section (3) of the section which reads:-
“At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section”,
that where the punishment imposed is a fine and a portion of the fine is ordered to be paid to the injured person such payment was not intended to bar claim for damages in a civil action although any amount received out of the fine must be taken into consideration by the Court when it determines the quantum of compensation to award in the civil action.
There can, I think, be no doubt that the Magistrate acted under the powers conferred by section 136 of the Criminal Procedure Code when he made the order to which I have already referred, and I am of the opinion ‘that the provisions of section 73 of the Criminal Code do not apply in such cases.
Sub-section (3) of section 72 of the Criminal Code expressly provides that any compensation adjudged to be paid under sub-section (2) of the section may be either in addition to or in substitution for any other punishment. The Court may, therefore, order imprisonment and compensation, a fine and compensation or compensation, and in such cases the compensation is either a separate and distinct part of the punishment or the punishment, whereas under section 136 of the Criminal Procedure Code the Court cannot, without imposing a substantive sentence of fine, order payment of compensation by an accused person to a complainant. In such a case the punishment is the fine, not the order that the whole or a portion of it is to be applied in the payment of compensation.
The learned trial Judge formed the view that there is a conflict between section 72 of the Criminal Code and section 136 of the Criminal Procedure Code, but I do not agree that such is the case. Under the former section an order for the payment of compensation is, as I have already said, part, or the whole, of the punishment, and is clearly intended to be a final adjudication on the matter, whereas under the latter section the Court is empowered to order that some of the fine which would otherwise go into the public treasury shall be paid to the injured person pending his obtaining relief by way of a civil action for damages.
In this connection it is relevant to observe that such an order can only be made when the Court is of the opinion that “substantial compensation” is recoverable by civil suit.
For these reasons I would allow this appeal, set aside the judgment of the Court below and enter judgment for the appellant for the sum of £22 10s. 0d., being the amount the learned trial Judge says would be adequate compensation, with costs in the Court below to be taxed, and I would allow the appellant the sum of £34 10s. costs on this appeal.
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COUSSEY, J. A.
I concur.
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KORSAH, J.
I concur.
Appeal allowed: Judgment for the appellant.
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