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UNITED AFRICA COMPANY LIMITED
V.
JAMES EGGAY TAYLOR
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
15TH DAY OF MAY, 1934
2PLR/1934/11 (WACA)
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OTHER CITATION(S)
2PLR/1934/11 (WACA)
(1934) II WACA PP. 67-69
LEX (1934) – II WACA PP. 67-69
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BEFORE THEIR LORDSHIPS:
DEANE, C.J. GOLD COAST (GHANA)
KINGDON, C.J. NIGERIA
WEBBER, C.J., SIERRA LEONE
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BETWEEN:
UNITED AFRICA COMPANY LIMITED — Plaintiffs-Appellants
AND
JAMES EGGAY TAYLOR — Defendant-Respondent
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ORIGINATING COURT(S)
DIVISIONAL COURT SITTING AT CAPE COAST
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REPRESENTATION
K. A. Korsah — for Appellants
C. F. Hayfron-Benjamin — for Respondent
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ISSUES FROM THE CAUSE(S) OF ACTION
COMMERCIAL LAW — CONTRACT:- Claim for breach of Contract and negligent performance of – Where prosecution for felony might lie but hasn’t been undertaken — Whether Court duty bound to ascertain reason for non-prosecution and/or insist on prosecution — Refusal of court to review evidence justifying non-prosecution of defendant — Whether there is no duty in private person to institute prosecution when Police and Law Officers refuse to prosecute
CRIMINAL LAW AND PROCEDURE:- Rule from the judgment of Swinfen-Eady, LJ. in the case of Smith v. Selwyn (1914) 3 K.B. 98 — Requirement that civil proceedings can only be commenced in relation to a suit with a criminal law element after the prosecution has been concluded — Proper application of — Need for court to respect the discretion of the Police and prosecutors in relation to the commencement of criminal proceedings
CRIMINAL LAW AND PROCEDURE:- Power of police/police officers to institute and carry on prosecutions when a public wrong has been committed — Implications for rights of action of private citizens to commence civil proceedings on a set of facts which might also disclose criminal elements — Proper role of court thereto
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PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Duty to do real justice between the parties and to get before it all the evidence — Attitude of appellate to failure thereto in preference to technical justice
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
Where a reasonable excuse for non-prosecution has been shown, the prohibition expressed in Smith v. Selwyn disappears, and there is nothing to prevent the action from being brought or the plaintiffs from obtaining judgment if they have proved their case.
Appeal allowed, judgment of Court below set aside, and judgment entered for plaintiffs.
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MAIN JUDGMENT
The following judgment was delivered:
KINGDON, C.J., NIGERIA.
This is an appeal from a judgment of the Divisional Court sitting at Cape Coast. The plaintiffs claimed £8,114 6s. 6d. damages for breach of contract. Of this sum £7,816 was alleged to be cash deficiency, a loss sustained by plaintiffs owing to defendant’s negligence, and £298 6s. 6d. expenses to which the plaintiffs had been put by defendant’s negligence.
The Court below split its judgment into two parts ordering a non-suit as regards the £7,816 with costs to be taxed, and giving judgment for the defendant as to the £298 6s. 6d. also with costs to be taxed. The plaintiffs now appeal to this Court against the non-suit and the orders as to costs; they acquiesced in the abatement of their claim by £298 6s. 6d.
The ground upon which the learned Judge ordered the non-suit was that, in his opinion, the alleged negligence was nothing more than camouflage, the whole evidence for the plaintiffs going to show that the defendant had been guilty of felony; and that no prosecution of the defendant had been instituted, and no reasonable excuse shown for his non-prosecution.
Up to the time of the delivery of the judgment the Judge had not apparently given any indication of his view of the evidence or called upon the plaintiffs for an explanation of the non-prosecution. Upon delivery of the judgment the plaintiffs applied for a review of the judgment upon the ground that they had a reasonable excuse for not having prosecuted the defendant, viz: that the police and the law officers had not approved prosecution, and craved leave to call evidence to satisfy the Court in that behalf: Upon hearing the application, the Judge refused to hear the evidence tendered, or to vary his judgment except by adding to that portion of it non-suiting the plaintiffs the words – ”liberty in the plaintiffs to bring a fresh action if they so desire.”
The plaintiffs now appeal upon the following five grounds:-
“1. Because the statement of claim did not allege a felony is its basis.
2. Because the claim is not based on a felony,
3. Because the judgment is contrary to Law and Equity.
4. The Court did not at any stage of the proceedings call on the plaintiffs appellants to show reasonable excuse for not having prosecuted the defendant.
5. Because the Court in awarding costs to defendant-respondent did not exercise its discretion judicially.”
First as to the refusal of the Judge to hear the evidence tendered upon the application to review. I think he was wrong to refuse. It is true that the plaintiffs might have foreseen the possibility of the Court taking the point it did and so have called the evidence at the trial, but to have done so would have been rather illogical without any indication from the Judge as to the view he took; and I think it was as much due to the Judge as to the plaintiffs that the evidence was not called, for it seems to me that the Judge should at the trial have asked the plaintiffs’ counsel why the plaintiffs had not prosecuted. Then, no doubt, the answer would have been given and the evidence in support of it adduced. It is the duty of a Court to endeavour to do real justice between the parties and to get before it all the evidence which is material, and not, by keeping silence, to lead one of the parties astray so that the other becomes entitled to a snatched judgment.
This Court has thought it proper, in the interests of justice, to hear the evidence tendered, and that evidence has satisfied me that the plaintiffs had, in fact, reasonable excuse for non-prosecution. This evidence shows, that so far from failing in their public duty, the plaintiffs performed it with the utmost zeal. They placed the matter in the hands of the police and pressed for a prosecution to be instituted. But the police, after making investigations and consulting the law officers, decided that the evidence was not sufficient to justify a prosecution. Not satisfied with the decision the plaintiffs’ agent made a special journey to Accra to press for prosecution, but he was not successful. What more could the plaintiffs do? In this country the public very properly look to the police to institute and carry on prosecutions when a public wrong has been committed. The advice of the law officers is the last word as to the propriety of a prosecution. It would in my view be wholly unreasonable to hold that a member of the public had failed in his public duty because he failed to institute a private prosecution after the police, on the advice of the law officers, had refused to prosecute.
The trial Judge quoted in his judgment the following passage from the judgment of Swinfen-Eady, LJ. in the case of Smith v. v. Selwyn (1914) 3 K.B. 98 and held himself bound by it:
“It is well established that according to the law of England, where injuries are inflicted on an individual under circumstances which constitute a felony, that felony cannot be made the foundation of a civil action at the cost of the person injured against the person who inflicted the injuries, until the latter has been prosecuted, or a reasonable excuse shown for his non-prosecution”.
This Court is equally bound by the law thus expounded and by its necessary implications so that now that a reasonable excuse for non-prosecution has been shown, the prohibition disappears, and there is nothing to prevent this action from being brought or the plaintiffs from obtaining judgment if they have proved their case.
As to whether they have proved their case or not, I think it is unnecessary to look further than the following passage in the trial Judge’s ruling upon the application to review:
“I agree that this finding (viz: that the loss of £7,816 was sustained by the plaintiffs as the direct result of the act of the defendant) would have been sufficient to entitle the plaintiffs to judgment, had public justice been vindicated”.
I also agree, and I consider the evidence so overwhelming that no Court could possibly come to any other conclusion.
It is abundantly clear that the plaintiffs proved their case and that, but for the point as to non-prosecution being taken by the Court, they would have been given judgment in the Court below.
Now that reasonable excuse for non-prosecution has been shown, the plaintiffs are, in my opinion, entitled to judgment.
I am accordingly of opinion that this appeal should be allowed, that the judgment of the Court below should be set aside, and that judgment should be entered for the plaintiffs for £7,816 and costs in this Court and in the Court below.
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DEANE, C.J., GOLD COAST.
I concur.
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WEBBER, C.J., SIERRA LEONE.
I concur.
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