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.
The two remaining issues of the respondents are:
“1. The respondents adopt the issue for determination as stated in paragraph 7(a) of the appellant’s brief.
- Whether the trial Judge was right in law to have ordered the defendants to file their statements of defence in this suit after dismissing the appellants’ application.”
As will be seen, the respondents adopt the appellant’s first issue but proffers a contrary argument to that of the appellants. While the appellants argue that the learned trial Judge was wrong in dismissing the appellants’ motion the respondents contend that she was right. Both contrary arguments are Founded on the same law viz Section 9(1) of the Actions Law of Anambra State. Learned counsel for the respondents argues that the 1st appellant is not the person arraigned before the Chief Magistrate Court. The felon being prosecuted is not the appellant. Counsel therefore contends that the requirements of Section 9(1) of the Actions Law have been satisfied. He refers to and relies on U.A.C. Ltd. v. Taylor (supra); Ojikutu v. African Continental Bank Ltd. (1968) 1 All NLR 40; Reku Fulani v. Idi (1990) 5 NWLR (Pt.150) at 311. It is submitted that the Police have declined to prosecute the 1st appellant, in the circumstance therefore the respondents do not have to wait for the completion of the prosecution of the 2nd appellant. The respondents may be running the risk of having their claim statute barred if they have to wait. It is further submitted that Order 10 under which the motion to strike out the suit is brought provides for the dismissal of the suit- not for striking out as prayed in the appellant’s motion.
On the 2nd issue of the respondents, it is submitted that the learned trial Judge acted within the scope of Order 10 in making an order for the defendants to file their statement of defence after dismissing their motion.
To keep the record straight, it would seem that the 2nd appellant did not originally appeal. There was only one appellant- the 1st appellant. This is borne out by the Notice of Appeal at page 19 of the record. However, by a motion on notice dated 29th November, 1996, learned counse for the 1st appellant obtained leave of this court to make Samuel Nnacheta, a 2nd appellant instead of a respondent which he had hitherto been. Samuel Nnacheta now the 2nd appellant was the person facing criminal prosecution at the Chief Magistrate Court Nteje for stealing N98,604 part of the N422, 139 for which the respondents have sued the two appellants.
This appeal turns entirely on the interpretation of Section 9(1) of the Actions Law of Anambra State. It provides:
“9(1) Subject to any written law in force in the State where an act constitutes a felony and at the same time infringes some right of, or causes damages to a person, the person whose right is thus infringed or who thus suffers damage shall not bring an action against the person doing the felonious act until such person shall have been prosecuted for the felony, unless satisfactory explanation is given for non-prosecution.”
The above provision of the Statute seems to me to be an importation into our law of the old English rule enunciated in Smith v. Selwyn (1914) 3 K.B. 98 popularly known as the Rule in Smith v. Selwyn. In its naked form the rule provides that:
An action for damages based upon a felonious act on the part of the defendant committed against the plaintiff is not maintainable so long as the defendant has not been prosecuted or a reasonable excuse shown for his not having been prosecuted, and the proper course for the court to adopt in such a case is to stay further proceedings in the action until the defendant has been prosecuted.” Per Kennedy L.J.
Or more simply:
“A plaintiff against whom a felony has been committed by the defendant cannot make felony the foundation of a cause of action unless the defendant has been prosecuted or a reasonable excuse has been shown for his not having been prosecuted.” Per Phillimore, L.J.
The Rule, which for historical reasons, was based on public policy has proved anachronistic and was consequently abolished in England by the Criminal Justice Act of 1967. It is surprising that a Rule which was abolished in England in 1967 was copied into the Statute Book of Anambra State in 1986 -Nineteen years after it had been abolished in England. It is no wonder that my learned brother Tobi, J.C.A. in Veritas Insurance Co. Ltd. v. Citi Trust Investment (1993) 3 NWLR (Pt. 281) 349 at 365 stated that the rule does not apply in this country and that:
… it does not even seem to be a sensible thing to stop a plaintiff from instituting an action merely because the criminal action in the same matter has not been prosecuted.”
Again, in Okonkwo v. Obumseli (1998) 7 NWLR (Pt. 558) 503 at 512 Tobi, JCA said:
“I would like to make a statement which is mark of a ministerial nature and not really law. In the light of the state of the Statutory Laws at the Federal level which make the English common law rule in Smith v. Selwyn (1914) 3 K.B. 98 no more applicable in Federal matters, it is a matter of some serious concern why section 9(1) of the Law of Actions Law, 1981 (sic) and Section 5(1) of the Torts Law, 1987 of Anambra State should still operate. That apart, the entire policy behind Smith v. Selwyn will work injustice, particularly in Nigeria where it, at times, takes so much time to apprehend an accused person. And what is more, proof of criminal matter is quite different from proof of a civil matter and there is really no justifiable reason why the two should be so related in terms of prosecution.”
Thus, the Rule in Smith v. Selwyn (suipra) has been dead and buried in England but in Nigeria it seems to rule us from the grave. I hope it will not be long when our Legislatures will follow the British example and expunge it from the Statute Books where it exists. It is a rule that does nobody any good. It is an anachronism. It has been interpreted in many judgments in our case law but as I said, it continues to rear its ugly head from the grave.
Having said that much, it is my duty to interpret the law as it appears in our Statute Book. As rightly pointed out by learned counsel for the appellants the legislation under consideration i.e. Section 9(1) of the Actions Law of Anambra State has two arms or limbs as already set out in this judgment. I shall consider the first limb first. It bars a person who suffers damage as a result of the felonious act of another from bringing an action to enforce his right until the felon shall have been prosecuted for the felony. What is the meaning of the expression “shall have been prosecuted for the felony … “,? Does the expression mean that the Felon must have been prosecuted to completion? Suppose the Statute of Limitation will run out against the victim of the felony while the prosecution is still dragging on, what does he do? Does he fold his hands and look on helplessly while his cause of action becomes statute barred? My answer to the question is a capital NO. He has to commence an action in the court but the action may be stayed by the Court, on a proper application, pending the determination of the criminal prosecution. A classical example of the sort of problem I am considering is provided by the case of Ndibe v. Ndibe (1998) 5 NWLR (Pt. 551) 632. In that case, a criminal act of assault and battery was committed against the plaintiff in May 1991. A report was duly made to the Police but the Police did not immediately commence prosecution until almost 5 years had elapsed. The plaintiff sued, called his witnesses and closed his case. The police thereafter commenced prosecution. When the appellant was to open his case he filed a motion for a stay of proceedings pending the completion of the criminal prosecution. The High Court refused a stay of proceedings at that stage. On appeal, the Court of Appeal per Salami, JCA in a well reasoned and properly articulated judgment dismissed the appeal. Suppose the facts in Ndibe v. Ndibe (supra) disclosed a felony, at the time the plaintiff commenced his action almost 5 years after the commission of the act, the plaintiff in the case could claim to have come under the 2nd limb of Section 9(1) of the Actions Law of 1986 of Anambra State. When the police subsequently commenced prosecution, what does the plaintiff do? Withdraw his action? NO. His action will either continue or be stayed pending the completion of the prosecution. The discretion of the court shall be paramount depending on the circumstances of the case. In the Ndibe case, (supra) the court rightly refused to stay proceedings holding that it would be inequitable to do so in the circumstances of the case. I must express my doubts as to the legality of the Actions Law of Anambra State in view of the Federal legislation covering the field in the area in which Section 9(1) of the Actions Law of Anambra State is promulgated. But since the issue was not raised, and this court not addressed on it. I shall let the matter wait the appropriate opportunity.
On the whole, it is my view that there are circumstances under which the courts shall interpret.
“shall have been prosecuted for the felony”
to include a situation where the felon is being prosecuted for the felony. In such a situation, and in appropriate cases the court may stay the proceedings pending the completion of the prosecution. The suit shall in no circumstance be struck out.
There is another twist to the case on appeal. Report was made to the police against the two appellants but the police refused to prosecute the 1st appellant. They commenced prosecution against the 2nd appellant only. Have the respondents no immediate right of action against the 1st appellant? Shall their (respondents’) right be suspended because the 2nd appellant was being prosecuted? The fate of the 1st appellant comes under the 2nd limb of the Statute which I am going to deal with next but what of the 2nd appellant? This is the rationale of my finding that in a situation such as this “shall have been prosecuted for the felony” as in the Statute shall be interpreted to include a situation where the felon or one of the felons is being prosecuted. In Okonkwo v. Obumseli (supra) Akpabio, JCA made a short cut of what I am trying to say about the said provision in the Actions Law of Anambra State by saying that:
“there is no requirement that the felon should be prosecuted to conclusion or shall have been prosecuted to conviction or acquittal or prosecuted to finality” (Italics mine)
before a civil action on the same subject matter can be commenced.
There is the second arm or limb of Section 9(1) of the Actions Law. I shall now deal with it. The relevant portion provides:
… unless satisfactory explanation is given for non-prosecution.”
This provision tends to whittle down the absolute bar imposed by the first arm of the legislation. A person aggrieved or injured by the felonious act may bring a civil suit based on the act even if the felon has not been prosecuted provided that he can give a satisfactory explanation for the non-prosecution. In U.A.C. v. Taylor (supra) the West African Court of Appeal gave its blessing to the failure of the Police to prosecute as a satisfactory explanation. See also Ojikutu v. A.C.B. Ltd. (supra); Fulani v. Idi (supra). That remains the law up till today. It is my candid view that the failure or refusal of the Police to prosecute should not be the only satisfactory explanation. Whenever any explanation is proffered by a plaintiff who has commenced an action notwithstanding that the felon had not been prosecuted, the court will examine the explanation and pronounce whether it is satisfactory or not. The door of “satisfactory explanation” is not closed.
In the appeal under consideration, report was made to the Police against the two appellants. The Police in their absolute wisdom which at times could be mystifying commenced criminal proceedings against the 2nd appellant only for stealing the value of the cheque of N98,604 issued to him by the Ist appellant leaving the 1st appellant to whom N422,139 was paid for the respondents. As regards the 1st appellant, the suit against him is in order under the 2nd ann of Section 9(1) of the Actions Law of Anambra State. As regards the 2nd appellant, my interpretation of “shall have been prosecuted” to include a situation where the felon is being prosecuted satisfies the requirement of the law. See also Okonkwo v. Obumseli (supra) per Akpabio JCA where the learned Justice said at page 511:
In the absence of these words signifying conclusion of trial or prosecutions, emphasised by me above, the only conclusion one can arrive at is that our legislators did not intend that a prospective plaintiff should fold his hands and wait until the conclusion of the prosecution or trial of a felon who injured him, before he could institute an action to seek redress …”
The 1st appellant brought his motion to strike out the suit in the High Court. He purported to have brought his motion under Order 10 of the High Court Rules of Anambra State. Order 10 Rule 1(1) of the Rules does not talk of striking out the suit. Rule 1(3) of the same order permits the court hearing the application to “dismiss the suit or order the defendant to file his statement of defence.” The lower court ordered the appellants to file their statement of defence after finding that the motion was not well founded. I am unable to fault the learned trial Judge.
Consequently, this appeal fails and is dismissed.
The respondents shall have N2000 costs.
Other Citations: (1999)LCN/0628(CA)