With Safi Jimba
General Principle of Liability (XIII)
On appeal, the appellant endeavoured to show that the offence came under section 355, depending entirely on evidence advanced by the plaintiff. The magistrate did not reject the medical evidence completely, and had he done so the question of felony would not have risen. the magistrate stated in his decision that the plaintiff had made no mention of the injuries and that of the injuries were observed under the microscopic examination of the doctor, such injuries cannot be regarded as so serious as to constitute an offence under section 355- a felony punishable with three years’ imprisonment – adding “if all the injuries described by the doctor were true, the offence could be properly brought under section 851 of the Criminal Code, which is a misdemeanour, punishable with one year imprisonment”.
The Court of Appeal did not consider that the test applied by the magistrate was correct. The appellant relied on Smith v Selwyn (see ante p.209) for the proposition that an action for damages based upon a felony on the part of the defendant is not mainatnable as long as the defendant’s argument has not been prosecuted. This is quite correct and the appelant’s argument was that the medical evidence disclosed a felony. The Appeal Court stated: “I cannot resist hazarding a guess that, if the (appellant) has been prosecuted under section 355, he would have strenously urged that the offence was merely assault punishable under section 351 of Cap. 42.”