Appiah Kwamie V. Omanhene Kobina Ngansah II (1953) LJR-WACA

Appiah Kwamie V. Omanhene Kobina Ngansah II (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Tort—Action for damages—Previous criminal case—Fine with order that part be paid as compensation—Criminal Code, sections 72 (2), 72 (3), 73—Criminal Procedure Code, section 136.

Facts

Section 72 (2) of the Criminal Code provides that “ any person . . . convicted of a summary offence . . . may be adjudged … to make compensation … to any person injured by his offence”; section 72 (3) provides that “any such compensation may be either in addition to or in substitution for any other punishment”; and section 73 of the Criminal Code provides that where the injured person receives compensation for the injury under the order of the Court or the offender suffers imprisonment for non-payment, that shall be a bar to any action for the same injury.

Section 136 of the Criminal Procedure Code enables the Court to order that the whole or any part of a fine imposed shall 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) of the section provides that “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”.

In the Court below the plaintiff claimed damages for assault against the defendant. The defendant had earlier been charged with causing harm to the plaintiff and on conviction sentenced to pay a fine; and the Magistrate directed a specified sum ” out of the fine ” to be paid to the plaintiff as compensation.

The trial Judge thought there was a conflict between section 72 of the Criminal Code and section 136 of the Criminal Procedure Code, and held that in view of section 73 of the Criminal Code the award of compensation by the Magistrate was a bar to any civil action for the same injury. The plaintiff appealed, relying on section 136 of the Criminal Procedure Code.

Held

There is no conflict but a difference of intention: section 72 of the Criminal Code provides for the making of an order of compensation as a specific order made on its own, which is intended under section 73 to be a final adjudication on the matter; section 136 of the Criminal Procedure Code provides that where the Court imposes a fine and is of opinion that substantial compensation is recoverable in a civil suit, the Court may order the fine or part of it to be paid to the injured person, and the section contemplates that he may sue and recover damages, the quantum of which shall have regard to what he may have received out of the fine.

In this case the Magistrate acted under the said section 136 and section 73 of the Criminal Code did not apply.

Appeal allowed: judgment for the appellant.