JOELS TERKULA ABAVER v. MRS. BRIDGET ALAGA
(2018)LCN/12188(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/S/33/2017
RATIO
COURT AND PROCEDURE: WHETHER A CRIME CAN ALSO BE A TORTUOUS ACT
“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 persons act, which has caused injury and damage, may therefore choose to seek remedy before the criminal or civil Courts.” PER FREDERICK OZIAKPONO OHO, J.C.A.
COURT AND PROCEDURE: WHERE A TORT IS ALSO A CRIME
“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 vs. 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.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES:
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
JOELS TERKULA ABAVER – Appellant(s)
AND
MRS. BRIDGET ALAGA – Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A.(Delivering the Leading Judgment):
This is an Appeal against the Judgment of Zamfara State High Court presided over by BELLO ALIYU GUSAU, J. and delivered on the 7th day of October, 2016 wherein the trial Court delivered Judgment in favour of the Respondent against the Appellant who was the Defendant by refusing his Counter Claims.
On the 9th day of October, 2016 by a Writ of Summons and a Statement of Claim, the Respondent as Plaintiff instituted a suit against the Appellant as Defendant claiming for the following reliefs:-
1. A DECLARATION that the Assault and battery the Defendant perpetrated on the Plaintiff in the presence or several people at the residence of late ASP Oliver Chibos, Gagare Yarima, behind Sambo Secondary School, Gusau, Zamfara State during his (late Oliver Chabos) wake-keeping on the 25-12-2011 at about 0110hrs was without any reasonable cause, arbitrary, unlawful and mostly unconstitutional.
2. The sum of 3,000,000.00 (Three-Million Naira Only) claimed for aggravated damages on the assault and battery caused on the Plaintiff by the Respondent at the said place, date and time, which injured her feelings as to the indignity, disgrace humiliation and mental suffering occasioned by the assault and battery.
3. Plus the cost of filing this action.
The Appellant in response to the Respondent’s Claim filed a Memorandum of Appearance dated 24th October, 2012 alongside 14 paragraphs Statement of Defence and a Counter Claim dated 12th November, 2012. The Memorandum of Appearance, Statement of Defence and Counter Claims are at pages 7 – 10 of the record. The Respondent further filed a Reply to the Appellant’s Statement of Defence and Counter Claim. The reply is at pages 11 – 17 of the record.
Shortly before the matter went to trial, the Appellant filed an application before the trial Court and sought for Leave to Amend his Statement of Defence which was granted. The Application is at pages 20 – 23 of the records. The Respondent had to file a Reply to the Appellant’s amended Statement of Defence. This is at pages 24 – 32 of the record. Hearing began and evidence was taken from both sides. The proceeding is at pages 56 – 73 of the record.
At the close of hearing, learned Counsel for the parties filed, served, exchanged and adopted their respective final Written Addresses. These are at pages 41 – 50 of the record.
On the 7th day of October, 2016 the trial Court delivered a well considered judgment in favour of the Respondent as Plaintiff. The Judgment is at pages 74 – 83 of the Record, while the Notice of Appeal is at pages 84 – 85 of the record.
Dissatisfied with the Judgment of the Court below, the Appellant has filed a Notice of Appeal dated 13th October, 2016. The Notice of Appeal is at pages 84 – 85 of the record. There is a single ground of Appeal filed and which is reproduced here without its particulars thus:
GROUND OF APPEAL:
The learned trial Judge erred in law and misdirected himself when he held and determined the matter without jurisdiction.
ISSUES FOR DETERMINATION:
From the sole ground of Appeal filed, the Appellant nominated an issue for the determination of this Court thus:
Whether the trial Court did not err in Law to have heard and determined this matter having set aside the conviction on the same matter against the Appellant.
On the part of the Respondent, a sole issue was also nominated for the determination of the Court thus;
Whether or not from the totality of evidence adduced at the trial Court, the preponderance of evidence is not in favor of the Respondent.
A careful perusal of the issues nominated by both sides to this dispute shows that the parties are clearly not on the same page as far as the issues nominated are concerned. In taking the Court’s bearing from the sole ground of Appeal filed, which is anchored on the question of jurisdiction, the issue which relates to the ground filed even though tangentially is the issue nominated by the Appellant. This Court, however, finds it difficult to relate the question of preponderance of evidence to the issue of jurisdiction. For this reason, the issue nominated by the Appellant shall be the basis upon which this Appeal shall be determined.
The Appellant’s Brief of Argument in essence therefore is dated 15-11-2017 and filed on the 20-11-2017 was settled by B. Y. GAMBO ESQ.; while the Brief of the Respondent dated 17-1-2018 but filed on the 19-1-2018 was settled by A. I. ANGO ESQ.,. On the 17-10-2018 at the hearing of this Appeal, learned Counsel for the parties adopted their respective Briefs of Arguments and urged the Court to decide this Appeal in favour of their sides.
SUBMISSION OF COUNSEL;
APPELLANT;
The argument of Counsel here is that this matter was initially commenced by way of a Criminal trial before a Chief Magistrates Court in Gusau, Zamfara State where the Appellant was convicted and sentenced and same was appealed against. According to Counsel, the Appeal was heard by a panel of the High Court of Zamfara State sitting in its Appellate Jurisdiction and headed by BELLO ALIYU GUSAU, J as President, the same Judge who sat over this matter as a civil matter now appealed against by the Appellant. According to Counsel, the Respondent who was the Plaintiff before the trial Court was PW1 and that she testified as follows during cross – examination at pages 57 of the Record of Appeal.
Yes the matter has been determined by another Court and Judgment has been entered”.
Counsel also drew attention to the PW1s further testimony under Cross – Examination where she said the following at pages 57 – 58 of the record.
I was not taken to hospital for treatment in respect of this issue. I asked for N3M from the Defendant because of the embarrassment I received from him in public and he did not come to apologize. I am still doing my business with which I feed my children”.
The further argument of Counsel is that from the evidence of both the Appellant and the Respondent, it is on record that this matter was once tried by a Chief Magistrates Court and conviction was set aside by the High Court, sitting on its Appellate jurisdiction. The argument of Counsel is that the Respondent ought not to have filed the instant case, but to have rather appealed against the decision of the High Court setting aside the conviction.
Counsel therefore submitted that the instant suit having been similar in terms of substance with the one determined by both the Magistrates and High Court, constitutes an abuse of Court process and he urged this Court to so hold. Counsel cited the case of DAPIANLONG vs. DARIYE (2007) 8 NWLR (PT. 1036) 332 SC held thus:-
“The question of Jurisdiction of Court is a radical and crucial question of competence because if a Court has no Jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided.”
Counsel also submitted that from the evidence of both the PW1 and DW1, it is settled that the Claims of the Respondent before the trial Court were the same with her complaint before the Magistrate’s Court, which decision has been quashed on Appeal to the High Court, by the same Judge who entertained the matter as a civil suit. The argument of Counsel is that the Respondent ought not to have initiated the civil suit same having been decided upon by the same which makes it appear as if the trial Court had sat on Appeal over its own judgment. For this reason, Counsel argued that the trial Court erred in law by granting the reliefs of the Respondent.
RESPONDENT;
The submission of Counsel in this Appeal is that the trial Court was right to have determined this matter in favor of the Respondent; that it is primary knowledge of law that the standard of proof in any civil matter is the preponderance of evidence. He cited the case of DUGHUM vs. ANDZENGE (2007) ALL FWLR (PT. 385) 506, Ratio 12.
It is important to note that the Respondent’s Counsel veered off track, thereafter addressed Court completely raising arguments which did not address the question of the Court’s jurisdiction at least in answer to the sole issue nominated for the determination of this Appeal and it would be unnecessary waste of time of this Court to review irrelevances in the name of arguments which obviously leads nowhere.
RESOLUTION OF APPEAL
By way of a background introduction, this matter was initially commenced by way of a Criminal trial before a Chief Magistrate’s Court in Gusau, Zamfara State where the Appellant was arraigned, tried, convicted and sentenced following his alleged assault of the Respondent at the wake-keeping ceremony of late ASP Oliver Chibo, at Gagare Yarima, behind Sambo Secondary School, Gusau, Zamfara State on the 25-12-2011 at about 0110hrs.
The said conviction and sentence was however appealed against to the Zamfara State High Court of Justice, sitting in its Appellate jurisdiction in Appeal number ZMS/CA/S/16/2016 and was heard by a panel headed by BELLO ALIYU GUSAU, J as President, the same Judge who sat over this matter as a civil cause in Suit number ZMS/GS/44/2012 now appealed against by the Appellant. The thrust of the argument of the Appellant in this Appeal is that the Respondent as Plaintiff in the Court below ought not to have filed a fresh civil suit asking for damages over the same assault but to have rather Appealed against the decision of the High Court which sat in its Appellate jurisdiction and setting aside the conviction and sentence.
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 persons 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 U.S.
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 vs. 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 VS. 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 persons 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 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 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. U. B. A. (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.
This Appeal is therefore completely lacking in merit and it is accordingly dismissed with cost assessed as 100,000.00 in favour of the Respondent.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the judgment of my learned brother Frederick O. Oho, JCA and I fully agreement with all the reasons therein and the conclusion that the appeal is devoid of merit.
It is accordingly dismissed for lacking in merit. I subscribe to the consequential orders made in the judgment.
AMINA AUDI WAMBAI, J.C.A.: I have read the judgment of my learned brother FREDERICK O. OHO JCA, with whom I am in agreement that this appeal is devoid of any merit.
The crux of this appeal is whether the appellant who had undergone a criminal trial for assault against the respondent can be subjected to a civil claim in respect of the same assault after his conviction and sentence had been set aside by the appellate jurisdiction of the lower Court presided over by the same judge that entertained the civil action. The simple answer to the poser, without any circumambulation, Is a resounding YES’.
The law has long been settled that a criminal prosecution or even a discharge and acquittal of a wrong doer is not a bar to the institution of a civil action against him by e victim of the wrong committed. It seems clear that at all fronts, there is absolutely no substance in the appellant’s argument, for even at a time that the rule in SMITH V SELWYN (1914) 3 KB 98 was applicable In this country, It only prohibited a plaintiff who has alleged a felony against a defendant from making that felony the basis of an action unless the defendant has been prosecuted or some good reason has been given why prosecution has not taken place. This is to say that the rule forbids concurrent or simultaneous hearing of a civil action as well as a criminal prosecution arising from the same incident unless the plaintiff can explain that the delay in prosecution was due to no fault of his.
The rule did not prohibit institution of a civil action by the victim after the determination of the criminal action. The rule in SMITH V SELWYN (supra) which was founded on public policy, has since been abolished as been unconstitutional see – Okafor vs Madubuko (2000) 1 NWLR (Pt.641) 473, Okonkwo vs Obunseli (1998) 7 NWLR (Pt 558)502.
The current position of the law is that the existence of a criminal action is not a bar to the subsequent institution of a civil suit against the same party. See ONAN VS MADUICA ENTERPRISES (NIG) LTD (2007) 13 WRN page 176 at 186 nor is the appellant’s discharge and acquittal in the criminal trial a bar to a subsequent civil action against him on the same facts. The failure of the criminal action does not disentitle the victim of the wrong committed from pursing his claim or necessarily mean that the civil action will not succeed. It is possible for the criminal action to fail and the civil action to succeed.
I therefore find no merit in this appeal. I too dismiss the appeal for lacking in merit. I abide the consequential order to cost in the lead judgment.
Appearances:
B.Y. Gambo, Esq. For Appellant(s)
A.I. Ango, Esq. For Respondent(s)
