The Pursuit Of Civil Remedy/Settlement Where Prosecutorial Authorities Fail To Act In Nigeria -By Joshua Olorunmaiye Esq

Olorunmaiye Joshua

Certain crimes in Nigerian law are also torts at common law, in that they are not only acts which are prohibited and punishable by the State, but are also civil wrongs which may cause injury to another person or their property. For example defamation, assault, and false imprisonment are torts as well as crimes. In such a situation, the victim of a person’s act which has caused damage may therefore choose to seek remedy before the criminal or civil courts. Indeed, a person can be on trial for both the criminal aspect and the civil aspect at the same time. In such cases, the remedies are therefore concurrent; while the accused person/tortfeasor (wrongdoer) might be imprisoned for the crime committed, he could at the same time pay damages to the Plaintiff for the tort committed.

As we may know, crimes are committed against laid down rules of the State and are punishable by the State, while torts are civil wrongs done against an individual (including a body corporate) for which remedy may be sought by such a victim before a civil court.

Therefore, the foremost purpose of Criminal Law is to punish wrongdoers for their harmful actions towards the society and provide a deterrent to other members of the society. This punishment can either be in the form of a term of imprisonment, community service, fines or even the death sentence. On the other hand, Tort is not concerned with punishing the wrongdoer. It is rather aimed at compensating the victim for the wrong done to him by the tortfeasor.

At common law, it was the position that where a tort was also a crime, the filing of criminal proceedings against the wrongdoer preceded the filing of a civil suit by the aggrieved party. This principle was known as the rule in Smith v. Selwyn (1914) 3 KB 98  which states that where a civil wrong is also a crime, prosecution of the criminal aspect must be initiated, or reasons for default of prosecution given, before any action filed by the Plaintiff  in the civil court can be heard. When this rule was not observed and the Defendant had not been prosecuted or a reasonable excuse given for the lack of prosecution, the civil action by a Plaintiff could not proceed and it was bound to fail. Hence, the proper course when a civil suit was filed was for the court to stay proceedings in the civil action until the criminal prosecution was finally completed. Nonetheless, the right of an aggrieved party to sue in tort was not affected, once the matter was reported to the police and the police in the exercise of their discretion decide not to press criminal charges.

In Nwankwa v. Ajaegbu (1978) 2 LRN 230, the Plaintiff reported an assault. The police did not bring criminal proceedings. The Plaintiff then brought civil action claiming damages for assault and battery. The Defence contended that the civil action could not proceed as criminal charges had not been filed by the police. The Court held that the civil action was not caught by the rule in Smith v. Selwyn which required that where a case discloses a felony, the civil action should be stayed until criminal proceedings were concluded. The Plaintiff having reported the assault to the police, whose duty it was to prosecute, if the police in their discretion failed to press charges, it was not the fault of the Plaintiff. He was therefore free to initiate civil proceedings for remedy.

However, the Smith v. Selwyn rule is no longer applicable in Nigeria. It has indeed also been abolished in Britain where it originated from, as it was abolished by the Criminal Justice Act 1967. Its non-applicability in Nigeria is also in view of the fact that it is a breach of the provisions of the Nigerian Constitution, 1999 and other statutes such as the Criminal Code Act 2004 and the Interpretation Act 2004

Instructive in this regard are sections 6(6) (b), 17(2) (e), 46(1) and 315 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which guarantee a person’s right of access to court.

In the case of Veritas Insurance Co. Ltd. v. Citi Trust Investments Ltd. (1993) 3 NWLR Pt. 281, P. 349 at 365 , the applicability of the rule in Smith v. Selwyn in Nigeria was considered by the Court of Appeal. It was held that in view of the combined provisions of the Nigerian Constitution, Criminal Code Act and the Interpretation Act, the rule no longer applies in Nigeria. Reading the unanimous judgment of the Court of Appeal, Niki Tobi JCA as he then was, stated:

“It appears that the decisions to the effect that the rule (in Smith v. Selwyn) applies in Nigerian law were made per incuriam. It is my view that the rule is not applicable in Nigeria in view of the very clear two local statutory provisions. Section 5 of the Criminal Code Act … is one, section 8 of the Interpretation Act… is another. Let me state verbatim ad literatim the provisions of the two statutes: First, section 5. The section provides that the Criminal Code: ‘Shall not affect any right of action which any person would have had against another if the Act had not been passed’. Second, section 8 (of the Interpretation Act). The section provides thus: ‘An enactment shall not be construed as preventing the recovery of damages in respect of injury attributable to any act by reason only of the fact that the enactment provides for a penalty, forfeiture or punishment in respect of the act’. In the light of the above statutory provisions, it is not correct to contend… that the rule applied in the case. It does not. Apart from the clear position of our law, it does not even seem to be a sensible thing to stop a plaintiff from instituting an action merely because the criminal action on the same matter has not been prosecuted. Certainly, a man who is aggrieved should have nothing to do with a criminal matter before instituting a civil action. The criminal matter is the concern of the State, so to say, while the civil matter is the concern of the aggrieved individual.” (Emphasis mine).

From the foregoing therefore, it becomes clear that it is not the law that a complainant who runs to the Police to report a case does not have the right to further institute civil proceedings. The meaning of the position of the Court as stated above is that one can indeed pursue both avenues for relief without recourse to the other.  Thus, where a person  who is victim of another’s criminal act in Nigeria makes a complaint to the Police, nothing estops such a person from further seeking civil remedy or even civil settlement where such an act is one from which civil liability may arise. Fraud is very well one of such instances where the Police in some cases seem to inadvertently frustrate a person’s pursuit of justice. This is especially due to the unwritten practice of some unscrupulous Police officers demanding for 10 percent of any recovered amount from complainants of financial crimes. Gist for another day, perhaps; but be it as it may and going by the above judicial authorities; if the Police do not help you get justice, perhaps the Court, being the last hope of the common man, would!

*Joshua Olorunmaiye Esq is a legal practitioner based in Lagos. He is an Associate in the law firm of Idowu Sofola (SAN) & CO and can be reached via email/twitter at joshomaiye@gmail.com/@joshgiantfeet.