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AYIFOR v. OSABUTEY & OTHERS


  • Land
  • 1959-02-27
  • HIGH COURT
  • GLR 152-154
  • Print

OLLENNU J.


Summary

Trespass?-When order for compensation is a bar to civil action?-Court not restricted to special damage in trespass.

Headnotes

Fudjie Ayifor had planted sugar-cane on his farm. Paul Agudey Osabutey and two others uprooted the canes, thereby depriving Ayifor of the anticipated crop and its proceeds. The three offenders were fined, and the Court ordered that the plaintiff be compensated to the extent of 1 out of the fines.Ayifor refused to accept this compensation, and sued the three civilly for 50 damages in trespass. They pleaded ?"liable with explanation,?" the ?"explanation?" being an argument that the order for compensation operated as a bar to subsequent civil proceedings. Rejecting this argument, but without taking evidence from Ayifor, the Native Court awarded him 25 damages. As the result of an appeal to the Magistrate?'s Court the Native Court re-heard the case, took evidence from the plaintiff and now awarded him 24 5s. 0d. damages. The three defendants appealed to the High Court (Lands Division).Land Appeal No. 161/58.

Judgement

(His lordship stated the history of the case, and proceeded:?-)

The defendants argue that the order in a criminal court for payment of compensation out of the fine imposed, taken with plaintiff?'s refusal to accept it, is in law a bar to the plaintiff?'s claim for damages. This argument is misconceived.

The Criminal Procedure Code, Sec. 143 (1) (b), empowers a criminal court, upon conviction of a person charged with an offence, to order the whole or part of any fine recovered to 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 provides as follows:?-

?"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.?" These provisions are quite different from the provisions for compensation provided in Sec. 72 (2) and (3) of the Criminal Code, which are as follows:

?"(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.?"

And Sec. 73 of the Criminal Code provides:?-

?"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.?" [p.154].

Thus, compensation ordered under Section 72 of the Criminal Code and recovered by a complainant, or the offender?'s imprisonment for non-payment of such compensation, operates as a bar to a civil action for the same injury. But compensation ordered under Section 143 of the Criminal Procedure Code, to be paid out of a fine, whether recovered or not, does not operate as a bar. All that happens in the latter case is that a civil court must take that compensation into consideration when assessing the amount of damages payable to the plaintiff. In the instant case the Native Court directed that the compensation of 1 be paid out of the fine imposed.

At the subsequent civil proceedings the Native Court, without hearing evidence of the plaintiff, awarded him 25 damages. As a result of an interim appeal to the Magistrate?'s Court constituted by the Government Agent, Oda, the Native Court re-heard the matter, and took evidence from the plaintiff as to the damage which had resulted (or was likely to result) to him from the tortious acts of the defendants. Only one of the defendants (the 1st) was present at the re-hearing, and he said that he represented the 2nd and 3rd; he did not cross-examine the plaintiff on his evidence. Thus the evidence led by the plaintiff, which stands unchallenged, is that the special damage which had resulted (or was likely to result) to him was 24 5s. 0d. The Native Court thereupon entered judgment for the plaintiff, awarding him that amount.

In law a court is not bound to award for trespass merely the amount of special damages which are proved. Trespass is a wrong which entitles the person wronged to general damages, quite apart from any special damages. The amount of general damages which the court awards is in its discretion, and depends upon the circumstances of the particular case. In my opinion the Native Court was most considerate in not awarding the plaintiff anything more than the amount he proved as special damages. The award is most favourable to the defendants. I have power to increase the damages, and I would feel quite justified in doing so, considering the way the defendants behaved; but I do not choose to exercise that power. The defendants may consider themselves lucky. However, since it is proved that the plaintiff did not receive the 20s. 0d. which was ordered to be paid to him out of the fine, and since I am of the opinion that the damages awarded by the Native Court are on the moderate side, I shall not direct that the said 20s. Od. Should be set off against the amount the Native Court awarded on the civil claim.

Decision

<P>In my opinion the appeal is frivolous, and it should be dismissed.&nbs

Plaintiff / Appellant

Tandoh

Defendant / Respondent

Koranteng Addow

Referals

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