Doorly, Ag. C.J. (Gold Coast) :- This appeal comes by way of special leave to appeal from a Ruling of the Divisional Court, Accra, given on the 10th December, 1943 whereby that Court, on the ground that the writ in an action for libel disclosed offences by the Defendant either of attempting to undermine the authority of a Chief (the Plaintiff) or of attempting to usurp his position, punishable criminally under section 27 (1) and section 31 of the Native Administration Ordinance respectively, referred the parties to the competent Native Tribunal or State Council for the proper proceedings to be taken and awarded £5 5s. costs to the Defendant.
Against this Ruling the Appellant has appealed on the grounds that a Native Tribunal has no jurisdiction in libel actions and that the sum claimed (£200) is above the jurisdiction of a Native Tribunal in an action for damages. Objection is taken also to the fact that the Court made its Order without hearing evidence.
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The fact that the Judge's Order referred the parties to the competent Native Tribunal or State Council cannot be taken to mean that he purported to be acting under the provisions of section 65 of the Native Administration Ordinance (Cap. 76) for that section relates only to civil cases cognizable by a Native Tribunal. Furthermore there is no order stopping the further progress of the case before the Divisional Court.
The precise intention of the Court is not made very clear but we think that it must be taken that the Court referred the parties to a Native Tribunal or State Council because in its opinion the allegation of a criminal offence was disclosed in the writ and it held the view that, when that is the case, the offence alleged should first be tried by a criminal Court before the civil Court proceeds with the action.
We can find no authority for this proposition. This matter was fully dealt with in the case of Smith v. Selwyn (L.R. 1914, 3 K.B 98). In that case Swinfen Eady, L,J. stated:-
“It is well established that according to the law of England, where injuries are inflicted on an individual under circumstances which constitute a felony, that felony cannot be made the foundation of a civil action at the suit of the person injured against the person who inflicted the injuries until the latter has been prosecuted or a reasonable excuse shown for his non –prosecution.”
The rule clearly applies to felonies only, That this is so is borne out by the fact that in his judgment in the same appeal Kennedy, L.J. considered the question whether the injury alleged in that action might not be a misdemeanour but decided that it was not. The fact that the learned Lord Justice made this enquiry shows that the same objection does not apply to a civil action taken without prosecution for a misdemeanour.
The offences which the Judge in the Court below considered to be disclosed in the writ are punishable with imprisonment for a term not exceeding six months in one case and in the other with imprisonment not exceeding three months. Neither of them is a felony.
On this ground we consider that the Judge in the Court below was wrong in referring the parties elsewhere as on the face of it the action is not cognizable by a Native Tribunal or State Council. We are of opinion that he should have proceeded with the trial of the action.
Counsel for the Respondent has raised the question whether the action is not one relating to the election, installation, or deposition of a Chief and as such not triable by the Supreme Court under the; provisions of section 75 (1) of the Courts Ordinance which reads as follows :-
“The Supreme Court and Magistrates’ Courts shall not have jurisdiction to entertain either as of first instance or on appeal any civil cause or civil matter instituted for-
“(1) the trial of any question relating to the election, installation, deposition, or abdication of any Paramount Chief, Head Chief, or Chief.”*Page 99The writ in the action sets out the libel complained of as consisting of the alleged publication by the Defendant of notices signed by him and describing himself as Acting Abola Mantse. It is the alleged publication of this description of himself by the Defendant which alone constitutes the alleged libel, the writ averring the innuendo that by so signing himself “ the Defendant intended to convey and did convey to the reading public that the Plaintiff was not and never had been Abola Mantse according to Ga Customary Law and accepted as such by the Ga Mantse and recognised by Government and further that by representing himself as Abola Mantse and participating in Ga Stool affairs as such Abola Mantse the Plaintiff was committing offences against the provisions of the Native Administration Ordinance.”
The only defence to the action disclosed so far in the opening by Defendant’s Counsel in the Court below is “that the innuendo is far fetched.” There is up to the present no issue raised relating to the election, installation, deposition or abdication of a Chief, consequently the case is not removed from the jurisdiction of the Supreme Court by section 75 (1) of the Courts Ordinance already quoted.
The appeal is allowed, the ruling of the Court below, including the order as to costs is set aside, and it is ordered that any sum paid in respect thereof shall be refunded the case is referred back to the Court below to continue the hearing of the suit unless and until it appears from the issues raised that the matter is one over which the Court has no jurisdiction owing to the provisions of section 75 of the Courts Ordinance,
The Appellant is awarded costs in this Court assessed at £28 15s, and of the one day’s argument in the Court below assessed at £5 5s. the other costs in the Court below, both those already incurred and those to be incurred at the further hearing are to abide the ultimate issue.