BUSANGAH v. WIENAAH

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] 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 recon