GEORGE MATTOUK V. ELIE MASSAD

POLICY AND PRACTICE LAW REPORTS, 2PLR

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GEORGE MATTOUK

V.

ELIE MASSAD

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

5TH DAY OF AUGUST, 1943

PRIVY COUNCIL APPEAL NO. 27 OF 1942

2PLR/1943/3 (PC)

OTHER CITATIONS

2PLR/1943/3 (PC)

 [1943] A.C. 588

(1943) IX WACA PP. 8 – 11

(1943) IX P.C. PP.8 – 11

LEX (1943) – P.C. 8 – 11

BEFORE THEIR LORDSHIPS:

LORD ATKIN

LORD THANKERTON

LORD PORTER

LORD CLAUSON and SIR GEORGE RANKIN

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BETWEEN:

GEORGE MATTOUK – Appellant

AND

ELIE MASSAD – Respondent

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ORIGINATING COURT(S)

1.       THE WEST AFRICAN COURT OF APPEAL (Kingdon (C.J. Nigeria), Petrides (C.J. Gold Coast), and Paul (C.J., Sierra Leone)

2.       HIGH COURT, (Fuad J., Presiding)

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REPRESENTATION

Solicitors for appellant: A. L. Bryden & Co.

Solicitors for respondent: Layton & Co.

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ISSUES FROM THE CAUSE(S) OF ACTION

TORT AND PERSONAL INJURY:- Claim for damages for the seduction and carnal knowledge by the appellant of the respondent’s daughter and servant – Evidence required to  prove seduction – Where lacking – Evidence of rape given in stead of — Attitude of court thereto

CRIMINAL LAW AND PROCEDURE:- West Africa – Civil proceedings eliciting allegation of a crime – Rape and seduction of a minor – Competency of action – Proof of rape – Uncorroborated evidence of a teenager alleging rape leading to pregnancy – Attitude of court thereto

CHILDREN AND WOMEN LAW: Alleged rape of a 15 year old by a 42 year old family friend who was married to a 17 year old – Allegation of fondling and intercourse against her will which were not reported to her parents – Subsequent pregnancy and child – Claim for expenses and loss of service consequent on the birth – Attitude of court to the uncorroborated evidence of a teenager pertaining to rape

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PRACTICE AND PROCEDURE ISSUES

JUDGMENT AND ORDER:- Trial Court – Providing  more detailed statement of reasons for judgment after appeal has already been lodged using initial record of proceedings – Propriety – How considered 

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CASE SUMMARY

ORIGINATING FACTS AND CLAIMS

APPEAL (No. 27 of 1942) from a judgment of the West African Court of Appeal (June 7, 1941), which reversed a decision of Fuad J., sitting in the Divisional Court for Ashanti of the Supreme Court of the Gold Coast (October 5, 1940).

The following facts are taken from the judgment of the Judicial Committee: The action out of which this appeal arose was brought by the appellant against the respondent for the seduction of his daughter, Mary, by the respondent. The parties were Syrians, living at Kumasi. Mary lived with her parents and younger children in a flat above some shops. The appellant worked in a store at Kumasi, and his wife worked at a shop of her own. Mary, who, apparently, was a well developed girl of 15 at the material date, gave evidence for the appellant and deposed that the respondent and his wife used to visit her parents frequently. The respondent, aged 42, was a leading man in the Syrian community, and had recently married a young wife of 17, who had a baby born on September 4, 1939. Mary deposed to various occurrences, the first being in October, 1939, when the respondent and his wife were present, at which, she said, the respondent had followed her to another room and fondled her; another at a later date, when the same thing occurred; and the third when the respondent, his wife and Mary’s mother were sitting on the verandah and the respondent exposed his person to her. Later, about November 15, the respondent, she alleged, came to the house alone, found her alone, and followed her to her parents’ bedroom and there had intercourse with her against her will. She then referred to a second occasion when the respondent came again with his wife and the baby. They were on the verandah with Mary and her mother. Mary had the baby in her arms, and when it slept took it to the parents’ room to lay it on the bed. As she was bending over with the baby in her arms, the respondent came behind her, put one hand over her mouth and had intercourse with her against her will from behind. The room had two windows, one overlooking the verandah with drawn curtains, and a door opening into the verandah with folding doors which were open but had a curtain over them. She alleged that, as the result of that intercourse, she gave birth to a child on July 24, 1940. It was for the expenses and loss of service consequent on the birth that the appellant claimed damages. The respondent gave evidence and denied the whole of the girl’s story. The learned judge (Fuad J.) accepted the girl’s story and gave the appellant 2000l. damages. It was not suggested by the appellant’s counsel that there was any corroboration of the girl’s evidence, or that the story of a connexion against the will of the girl should be accepted, or that the story of the second intercourse could be received as having happened in the way described. The trial judge, who tried the case without a jury, said that he had to warn himself how dangerous it was to act on the girl’s evidence alone, but that, nevertheless, having watched her demeanour and that of the respondent, he came to the conclusion that she was telling the truth. The West African Court of Appeal (Kingdon (C.J. Nigeria), Petrides (C.J. Gold Coast), and Paul (C.J. Sierra Leone)) came to the conclusion that the story was wholly incredible, and entered judgment for the present respondent. They emphasized the fact that it was not even contended that the girl’s story of rape was true, and were of opinion that the trial judge was thereby reduced to reconstructing a case of intercourse by consent as to which there was no evidence, and they commented on the fact that the judge’s notes of his judgment did not discuss in any detail the facts of the occurrences which he found to be true. The appellant appealed.

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