"...generally civil proceedings can go on simultaneously with criminal proceedings where the facts give rise to both criminal and civil liabilities. The aggrieved party need not await the result of the criminal proceedings before filing and maintaining a civil suit...the result of a criminal case cannot be used to establish a civil claim." Per SANKEY, JCA, vide EBONG vs. SECURITIES AND EXCHANGE COMMISSION (2017) LPELR-43547 (CA).
ABAVER vs. ALAGA(2018) LPELR-46566(CA)
ISSUE: COMMENCEMENT OF ACTION - whether the existence of a criminal action will be a bar to a subsequent institution of a civil suit against the same party
PRINCIPLE:
"...The relevant question that should perhaps, be addressed at this point is whether there is in existence any principle of law which precludes the Respondent from seeking a civil remedy for assault against the Defendant either simultaneously during the pendency of the criminal trial or even after his conviction and sentence by the criminal Court had been set aside on Appeal. In Nigeria, the position remains that certain crimes also double as tortuous acts are therefore not only prohibited and punishable by the criminal Court but are also actionable as civil wrongs in the regular civil Courts. Some examples are the crime of assault as in the instant Appeal, while others are causing wrongful death through fatal accident cases, defamation and false imprisonment, which are torts and as well as crimes. In matters of this nature, the victim of a person's act, which has caused injury and damage, may therefore choose to seek remedy before the criminal or civil Courts.
The position is that a person can be on trial for both the criminal aspect and as well as the civil aspect at the same time. In such cases, the remedies are therefore concurrent; while the accused person's tort-feasor might be imprisoned for the crime committed, he could at the same time pay damages to the Plaintiff for the tort committed.
See the popular O. J. SIMPSON trial officially titled PEOPLE OF THE STATE OF CALIFORNIA vs. ORENTHAL JAMES SIMPSON decided 3rd October, 1995 in Los Angeles, California in the US.
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 decided not to press criminal charges.
These notwithstanding, the rule in SMITH v. SELWYN (supra) is no longer good law in Nigeria as it has ceased to apply in Nigeria. The rule has 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 (As amended) 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 guaranteed a person's right of access to Court.
In the case of VERITAS INSURANCE CO. LTD. vs. CITI TRUST INVESTMENTS LTD. (1993) 3 NWLR (PT. 281), 349 AT 365, the applicability of the rule in Nigeria was considered by this Court per NIKI TOBI, JCA, (as he then was) held that in view of the combined provisions of the Nigerian Constitution 1999, the Criminal Code Act and the Interpretation Act, the rule no longer applies in Nigeria.
"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 and literally 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 this 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."
See also the cases of NDIBE vs. NDIBE (1998) 5 NWLR (PT. 551) 632; OKAFOR vs. MADUBUKO (2000) 1 NWLR (PT. 641) 473; EKERETE vs. UBA (2005) 9 NWLR (PT. 930) 401.
As noted by this Court in these cases, it is not part of Nigerian law that a complainant who runs to the Police to report a case does not have the right to further institute civil proceedings either simultaneously or subsequently even where the criminal charge and civil wrong have arisen from the same cause of transaction." Per OHO, JCA.(Pp.9-14,Paras.C-A).
NWAOBOSHI & ORS. vs. FEDERAL REPUBLIC OF NIGERIA(2018)LPELR-45107(CA)
ISSUE: COURT PROCEEDINGS - whether a criminal matter and a civil action can run concurrently
PRINCIPLE:
"In the action at the Federal High Court, Asaba Division, the relief claimed, inter alia, was for a declaration that the subject property was validly and legally purchased from the Delta State Government. This is quite distinct from the processes in this instant matter which dwells on the source of the proceeds used to finance the purported valid and legal purchase of the property from Delta State Government, the allegation being that proceeds of crime were used for the purchase. It has been held in AKINGBOLA vs. EFCC (supra) that an action such as one that spawned this appeal was not a civil matter but a quasi criminal matter. Equally in FRN vs. VIJAY LALWANI (supra) at 31, Abiru, JCA, stated: "...there is nothing preventing a simultaneous prosecution of a criminal charge along with a civil suit arising from the same transaction. And even where such specific local legislations exist, it is the civil matter that awaits the criminal prosecution, and not vice versa." The learned Justice of this Court continued at page 32, stating: "There is no statutory provision or principle of law that forbids a trial Court from hearing a criminal charge brought against an accused person on the ground there, being a pending civil litigation against the accused person for the same transaction." In the light of the settled state of the law that this matter is a quasi criminal matter and that a civil matter and a criminal matter on the same transaction can proceed simultaneously, and if one is to await the other, it is the civil matter that will wait; could the pendency of the civil matter at the Federal High Court, Asaba Division, even if it had been disclosed, have afforded a reason why the lower Court would not have made the interim forfeiture order? Dealing with this poser the lower Court stated as follows at page 342-343 of the Records: "The action before Abang J. of Asaba Division is a civil Suit filed by the Respondents (herein). By the authority of Akingbola vs. EFCC (2012) 9 NWLR Pt. 1306 at Pg. 475 the current action is quasi criminal as held by the Court of appeal. The action is meant for the preservation of the properties suspected to be proceeds of crime. The criminal liability as submitted by Counsel to the Appellants/Respondents, E. E. Iheanacho cannot be determined in Suit FHC/ASB/CS/28/2017 which is not a criminal charge and I do agree with the Counsel's submission. The current action is a preparatory to the foreseeable or intended charge meant for the purpose for prosecuting the Respondents herein. Can this Court then declare the proceedings of this Court as an abuse considering the circumstances of this action?" The Court continued at page 344 of the Records thus: "In the current action, the EFCC had put their intentions into manifestation by confiscating the res in order to preserve same as provided by their enabling Act as interpreted by the Court of Appeal in Dangabar vs. FRN (supra).
Considering the Court of Appeal decision that such procedure is quasi criminal, I believe what comes to mind is the famous case of Smith v. Selwyn (1914) KB 98 which is to the effect a civil action must await the outcome of a criminal prosecution on grounds of public policy. The above law is no more envogue (sic) as same has been abolished by the Criminal Justice Act of 1967 of England. It is considered anachronistic and archaic by our Appellate or Supreme Courts. The trend now is that both civil and criminal actions can proceed simultaneously and I so hold. As pointed out earlier in this ruling, the order of the Court was meant to preserve the res in preparation for prosecution. I see therefore no abuse." The lower Court then concluded at page 345: "...one may wish to ask whether if this Honourable Court had been hinted of the action in Asaba Division of the Federal High Court, whether the Court would still proceed to grant the order as it did? I have earlier ruled that both cases can proceed simultaneously and hence the question will be answered in the affirmative." Undoubtedly, the lower Court arrived at the correct decision. I will therefore resolve issue number one against the Appellants by answering the same in the negative. The lower Court did not err in law when it held that the suppression of the pendency of the civil matter at the Federal High Court, Asaba Division was not material to warrant the discharge of the interim forfeiture order." Per OGAKWU, JCA.(Pp.20-23,Paras.A-F).
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