BUSANGAH v. WIENAAH [1968] GLR 1110

DIVISION: HIGH COURT, SEKONDI

DATE: 16 DECEMBER 1968

BEFORE: ABOAGYE J.

NATURE OF PROCEEDINGS

APPEAL against the judgment of the district court awarding damages against the appellant for alleged adultery with the respondent’s wife. The facts are fully set out in the judgment.

COUNSEL

J. K. Polley for the appellant.

A. Forson for the respondent.

JUDGMENT OF ABOAGYE J.

This is an appeal by the defendant (hereinafter referred to as the appellant) against the judgment of Mr. J. K. Amponsah, District Magistrate Grade II, Takoradi, given in favour of the plaintiff in an action for damages for adultery.

The plaintiff’s case was based upon a report made to him by his wife that some time in August 1966, while he was working at the Prestea Gold Mines, the appellant, who was his landlord at Sekondi, carnally knew his (plaintiff’s) wife in the plaintiff’s room at Sekondi against her will. The appellant denied the accusation made against him and, therefore, refused to pacify the plaintiff. The latter then commenced this suit against him claiming N¢50.00 damages for adultery. After hearing evidence on both sides the magistrate gave judgment for the plaintiff and awarded him N¢14.40 and one bottle of whisky as “satisfaction fee” and N¢15.50 costs. At the hearing of this appeal, learned counsel for the appellant attacked the magistrate’s judgment on two main grounds, namely:

“(1) That the allegation made against the appellant being one of rape, a felony, the plaintiff should not have commenced a civil action against him without first getting him prosecuted criminally; and

(2) That the judgment is against the weight of evidence.”

In support of the first ground, learned counsel cited the case of Smith v. Selwyn [1914] 3 K.B. 98, C.A. and the local case of Cheetham v. Bannerman (1881) Sar.F.L.R. 23. In the latter case, Bailey J. delivering the judgment of the Full Court, said that when a plaintiff in a civil case had a criminal remedy for the same offence he could not prosecute his civil action until the defendant had been prosecuted, convicted and sentenced. That decision appears to have made it mandatory for the victim of a felonious act to get the felon [p.1112] of [1968] GLR 1110 prosecuted before obtaining civil redress. But in the much later case of Smith v. Selwyn (supra) it was held by the English Court of Appeal that in such a case the court had a discretion to stay the civil action until the felon has been criminally dealt with. In that case where defendant was alleged to have drugged the first plaintiff’s wife (the second plaintiff) and had either had, or attempted to have, sexual intercourse with her, Kennedy L.J. had this to say at p. 103: “It is not easy to find a statement in any case as to what is the course which the Court ought to adopt in a matter of this kind. Some of the decisions are not easy to reconcile … In my opinion the result of them is this. It is in the power of the Court to grant a stay, and it is the duty of the Court to consider in each case whether in the circumstances it will grant a stay, if it sees that the claim for damages is based upon a felony committed by the defendant.” It is in the interest of the State or the public that felons should be exposed and made to suffer certain civil disabilities and so a person who suffers as a result of a felonious act of another should not be allowed to let the felon escape the tentacles of the criminal law by accepting compensation in a civil suit.

In the instant case, however, the plaintiff was not the victim of the felonious act, that is, the rape, and in the similar case of Appleby v. Franklin (1885) 17 Q.B.D. 93 where the defendant was sued for carnally knowing the plaintiff’s wife after drugging her to reduce her muscular resistance, it was held, on the authority of Osborn v. Gillett (1873) L.R. 8 Exch. 88, that as the plaintiff was not the person against whom the felonious act had been committed he was not under any obligation to prosecute the defendant and so he could maintain a civil action against him for damages without waiting for him to be criminally prosecuted. I have no reason to differ from that judgment and I therefore hold that the present action was properly tried by the district court. With regard to the second ground of appeal, namely, that the judgment of the district court is against the weight of evidence, I am in full agreement with Mr. Polley, counsel for the appellant. It is very easy for a woman to accuse a man of having carnally known her but extremely difficult for the man to exonerate himself. Fortunately, I must say for men, it has been held that a party who avers adultery against another must prove the averment beyond reasonable doubt: see Ginesi v. Ginesi [1948] P. 179, C.A. and Preston-Jones v. Preston-Jones [1951] A.C. 391, H.L. The material evidence in support of the plaintiff’s case came from his wife, the plaintiff’s second witness and the plaintiff’s third witness.

[p.1113] of [1968] GLR 1110

Of the three witnesses only the wife gave direct evidence that the defendant carnally knew her whilst she was asleep. The plaintiff’s second witness said he was awakened by shouts from the plaintiff’s wife and when he came out of his room he saw the appellant on the verandah in front of the room putting on his shorts. The woman told him that the appellant had raped her but he did not ask him anything neither did he arrest him although he said he armed himself with a cutlass as he left his room to see what was happening to the plaintiff’s wife. The allegation made by the woman against the appellant was of the gravest kind and considering the report which, according to him, the woman had previously made to him that she had been raped by a man she could not make out, one would have expected him to have arrested the appellant, if his evidence were true, and take him to the police. The evidence of the plaintiff’s third witness was that she was in a lavatory when she heard cries from the plaintiff’s wife with whom she had been sleeping. She went to her room and saw the appellant there struggling with the woman. She joined forces with the woman but the Appellant pushed the two of them down and left the room; putting on his shorts as he walked away. That evidence was hotly challenged by the appellant in cross-examination. The appellant, on the other hand, gave evidence denying that he carnally knew the plaintiff’s wife as she alleged. He said he was awakened by the cries of the woman in the night and he and his wife went out to see what was happening to her. He was then accused of having had intercourse with the plaintiff’s wife that night and he denied the allegation. He called no less than three witnesses all of whom corroborated his evidence and none of whom was cross-examined by the plaintiff. Their evidence was impliedly admitted by the plaintiff. The magistrate did not give any reasons for his acceptance of the evidence for the plaintiff and his rejection of that for the appellant. He appears to have been influenced by the fact that the plaintiff was away from his wife at the time and therefore the defendant had an opportunity to seduce his wife. In an attempt to justify his judgment the magistrate went off the record and said that the plaintiff’s second and third witnesses had given evidence that the appellant went to his room after he had left the plaintiff’s room and then came out with his wife. They did not state that at any stage of their evidence and the magistrate was wrong in trying to make good the plaintiff’s case. Upon the evidence on record it cannot be said that the plaintiff’s case was proved beyond reasonable doubt and the magistrate should have dismissed it. I therefore allow the appeal, set aside the judgment of the district court, and enter judgment for the appellant.

[p.114] of [1968] GLR 1110

The appellant will have his costs of this appeal assessed at N¢68.30 inclusive of N¢63.00 for counsel and his costs in the district court to be taxed.

DECISION

Appeal allowed with costs.

L. F. A.