Dennis Okafor & Anor V. Joseph O.d. Madubuko & Anor (1999)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

: In their paragraph 6 of the statement of claim, the plaintiffs/respondents alleged that the Anambra-Imo River Basin Development Authority paid to them through the 1st defendant/appellant who was their attorney a sum of N422,139 as compensation. The 1st defendant/appellant stated that he issued a cheque of part of the money to 2nd defendant/appellant for delivery to the plaintiffs/respondents. Neither part of the money covered by the Cheque nor the entire amount has been paid to the plaintiffs/respondents despite demands. Consequently, the respondents sued in the High Court of Anambra State presided over by F. U. Obiora J. claiming jointly and severally from the appellants two sums of money amounting to the said N422,139 and interest thereon as per paragraph 13 of their statement of claim.

Following the non payment of their money to them by the appellants, the respondents reported the two appellants to the Police. The Police after their investigation charged only the 2nd appellant to the Chief Magistrate Court for stealing the N98,604 covered by the cheque allegedly issued to him by the 1st appellant. On receipt of the statement of claim in this suit, the 1st appellant filed a motion to strike out the suit for offending the provisions of Section 9(1) of the Actions Law of Anambra State on the ground that the 2nd appellant was being prosecuted for a felonious offence which prosecution had not been completed. On 4th May, 1995, the learned trial Judge delivered her ruling dismissing the application. Against that dismissal this appeal has come to this court. The appellants filed their brief of argument and therein formulated two issues for determination viz:

“(a) Whether the learned trial Judge was right in law when she dismissed the application on the ground that by making a report to the Police that respondents had satisfied the requirements of Section 9(1) of the Actions Law of Anambra State.

(b) Whether the learned trial Judge was right when she decided that the criminal prosecution for felony of 2nd defendant/respondent should proceed simultaneously with the civil suit when both of them deal with the same subject matter in view of Section 9(1) of the Actions Law of Anambra State.”

Arguing his first issue, learned counsel for the appellants submits that in the light of the facts of this case, which facts are not in dispute, the only issue between the parties is whether the respondents have satisfied the requirements of Section 9(1) of the Actions Law of Anambra State by merely reporting the matter to the Police. He submits that the Actions Laws has two arms viz:

(i) That the person who suffers damage shall not bring an action against the perpetrator of the felonious act “until such person shall have been prosecuted for the felony.

(ii) That when the first arm has not been complied with then one can fall back on the 2nd arm i.e. that the person who suffers damage and who desires to bring an action has to give satisfactory explanation for the non-prosecution of the felon.

Under the first arm, it is argued that until the prosecution of the felon is completed, no civil action shall be brought against him. He refers to UAC v. Taylor 2 WACA 67 at 68 – 69; Smith v. Selwyn (1914) 3 K.B. 98. Counsel submits that the felon i.e. 2nd appellant is being prosecuted and without completing the prosecution the respondents filed the present suit. The respondents, it is submitted, have to wait for the completion of the criminal prosecution of the 2nd appellant before filing the suit.

Under the 2nd arm, it is only when the Police refuse prosecution that the injured party can bring an action on the explanation that the Police have refused prosecution. Counsel refers to Fulani v. Idi (1990) 5 NWLR (Pt. 150) 311 at 318. It is submitted that the reliance of the lower court on the obiter of Karibi-Whyte JSC in Aliu Bello olld Ors v. A.G. of Oyo State (1986) 5 NWLR (Pt.45) 828; (1986) 12 SC 1 at 75 is not well founded. He refers to Baker v. Bolton (1808) 1 Camp. 493. See also Nishizawa Ltd. v. Jethwani (1995) 5 NWLR (Pt. 398) 668 at 675.

Arguing his 2nd issue, learned counsel contends that by ordering pleadings after the ruling and adjourning the case for hearing it means that the criminal case against the 2nd appellant and the civil suit will both be going on concurrently at the same time. Counsel in the rest of his brief raises unfounded fears as to what will happen if the criminal court finds the 2nd appellant guilty of stealing N98,604 while the civil court finds both of them liable to the respondents for the entire N422,139. I say unfounded fears because the conviction or acquittal of the 2nd appellant shall have nothing to do with the civil claim. If the criminal court finds him guilty and the civil court finds both of them liable the respondents shall be at liberty to levy execution on any of the parties who is rich enough to bear the brunt of the judgment. That other party has his remedy in contribution against the 2nd appellant to whom he had given a cheque for part of the money. The respondents shall not be concerned with the internal wrangling between the two felons. Furthermore, the order which the learned trial Judge made is supported by Order 10 Rule 1(3) of the High Court Rules of Anambra State. Learned counsel for the respondents is quite right when he stated in his 3rd issue that:

”The issue stated in paragraph 7(b) of the appellant’s brief is not relevant in this appeal, and ought not to have been raised. The learned trial Judge did not make any such ruling raised in the said Issue”

At no time did the learned trial Judge order that the criminal prosecution for felony of the 2nd appellant should “proceed simultaneously with the civil suit.” The learned trial Judge merely ordered pleadings as he is required to do under Order 10 Rule 1(3) of the High Court Rules of Anambra State and adjourned the case for hearing. On the date of the hearing, learned counsel for the appellant shall be at liberty to make any application he may desire to make. It is quite possible that on the day of hearing, the business of the court shall not permit the “hearing” to go on; it is possible that before the date of the hearing, the criminal case pending in the Chief Magistrate’s Court shall have been disposed of. The 2nd issue of the appellants in this is therefore disposed of.

I shall now review the respondent’s brief after which I shall consider the issues raised therein in conjunction with the remaining issue of the appellants. The respondents formulated three issues in their brief. I have already considered the 3rd issue to the effect that the 2nd issue of the appellants is irrelevant to this appeal.