ANARFI vs. ARTHUR [2001-2002] 1 GLR 364

CASE REFERRED TO

Badu v Boakye [1975] 1 GLR 283.

PRELIMINARY OBJECTION to the hearing of a civil action on the ground that since the plaintiffs were facing a charge of stealing which was a felony on the same facts, the civil matter could only proceed after the completion of the criminal aspect. The facts are sufficiently set out in the ruling.

M Y H Acheampong (Miss) for the plaintiffs-respondents.

Ebow Quashie (with him Kudzedzi) for the defendants-applicants.

Dotse J. On 17 December 2002 learned counsel for the defendants, Constantino Kudzedzi, raised a preliminary legal objection to the

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effect that once the plaintiffs in the instant suit are facing a charge of stealing and or conspiracy which is a felony before a court in Accra on initially the same facts, the civil aspect of the matter which is before this court cannot proceed until the completion of the criminal aspect.

Replying, learned counsel for the plaintiffs, Mrs Acheampong, submitted that there is no rule of law or procedure that you cannot proceed with the criminal and civil aspect of a case contemporaneously.

On 18 December 2002 I overruled the said objection and stated that I will deliver my detailed reasons later. By the said ruling, I must be understood to have decided that the instant suit can proceed at the same time that the prosecution of the criminal case is proceeding.

Admittedly, the facts upon which the plaintiffs have mounted the instant action are the same facts which have given rise to the prosecution of the plaintiffs on a charge of conspiracy for stealing whilst I understand one Emmanuel Kofi Nkobi has been charged with stealing. I have in an earlier ruling delivered on 12 November 2002 deleted and struck out the name of the said Emmanuel Nkobi as a plaintiff in the instant suit.

In the submissions made to me in support of the contention, counsel for the defendants relied on the case of Badu v Boakye [1975] 1 GLR 283 wherein Osei-Hwere I (as he then was) held in holding (2) of the headnotes as follows:

“Where a tort was also a felonious crime, such as the offence of causing harm under the Criminal Code, 1960 (Act 29), the right of redress by civil action could not be maintained until the crime had been prosecuted, and where the allegations clearly pointed to a felonious crime, the plaintiff should not be permitted to state a cause of action on a misdemeanour without alleging the felony.”

In the above case, the plaintiff sued the defendant, her paramour, among other reliefs, on a claim for general damages for assault and battery and alleged that it was the defendant who caused harm to the plaintiff which necessitated a surgical operation. This was the background to the above decision. The High Court per Osei-Hwere J (as he then was) relied also on the Halsbury’s Laws

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rd of England (3 ed), Vol 1, pp 11-12.

I have had the benefit of reading the judgment in the Badu v Boakye case (supra) as well as the passage in the Halsbury’s Laws of England referred to. Admittedly, Osei-Hwere I (as he then was), was in fact a judge whom I had a lot of respect for due to his incisive and well-thought out and reasoned judgments. I am however of the considered view that the principle of law stated in the Badu v Boakye case (supra) cannot be of general application. Indeed, to allow it to have such an application will lead to incongruous results. For example, think of a situation where A, has been seriously injured in a road traffic accident; but B the driver has according to and upon either the result of the vehicle examiner or the investigator’s report at the scene of accident decided to close the docket. This would mean that there will be no prosecution and the docket would be closed as accidental. As a matter of fact, I have in my practice as a lawyer come across countless examples of police reports on accidents where the docket has been closed with no prosecution. Should victims of such cases be denied their rights when they institute civil claims for damages? I think not. What about instances where a case is both a felony and a tort, and the victim even though has reported the case to the police, because he has no power and control over the prosecution of the criminal case has to wait for any length of time for the police, eg when the police decide to be dormant.

I think, victims of an action, which constitutes both a crime and also ground an action of a civil nature must not have any fetter on their hands as to the initiation of a civil action. Any attempt to link the institution of a civil claim on the success or otherwise of a criminal action would be an attempt to whittle down the fundamental rights of the individual as has been enshrined in our Constitution, 1992. Perhaps, what was overlooked by the court in the Badu case (supra) is the fact that the conditions in Britain where Halsbury’s principles have general application are wholly non-existent here. In an era where police investigation and prosecution are so erratic and dependent on a whole lot of factors which knows no logic, eg delays in receiving advice and opinion from the Attorney-Generals Department, it will be dangerous to have this linkage. This is especially so as the power to prosecute and order stoppage of criminal prosecution by the process known as nolle

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prosequi has been vested solely in one person, the Attorney-General. Besides, it does happen that, an acquittal on a criminal charge cannot absolve one from civil liability. What this means is that, even though a victim may have had the accused in the criminal case acquitted and discharged by the court, the victim can successfully mount a civil action against the same person and succeed. In fact this does happen. It is for the above reasons that I hold that the principle in the Badu case (supra) should not have a general application, and in any case should not be held to deprive the plaintiffs of their rights to institute the instant suit against the defendants.

Preliminary objection overruled.

EKD-O