3PLR – FEDERAL REPUBLIC OF NIGERIA V. VIJAY LALWANI
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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FEDERAL REPUBLIC OF NIGERIA
V.
VIJAY LALWANI
IN THE COURT OF APPEAL OF NIGERIA
ON TUESDAY, THE 19TH DAY OF FEBRUARY, 2013
CA/K/151/C/2011
3PLR/2013/66 (CA)
OTHER CITATIONS
(2013) LPELR-20376(CA)
BEFORE THEIR LORDSHIPS
ABDU ABOKI, J.C.A
ITA GEORGE MBABA, J.C.A
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A
BETWEEN
FEDERAL REPUBLIC OF NIGERIA – Appellant(s)
AND
VIJAY LALWANI – Respondent(s)
REPRESENTATION
CHIEF MIKE A. A. OZELHOME WITH ANTHONY ITHENUMAH AND DOMINIC EZERIOHA – For Appellant
AND
RESPONDENT ABSENT AND UNREPRESENTED – For Respondent
ORIGINATING STATE
KANO JUDICIAL DIVISION: Federal High Court (Shehu Yahaya J- Presiding)
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:– Rule in Smith and Selwyn – Whether there is any statutory provision or principle of law that forbids a trial Court from hearing a criminal charge brought against an accused person on the ground of there being a pending civil litigation against the accused person for the same transaction – Whether a criminal trial is a statutory bar to civil prosecution over a civil liability, where the criminal conduct also gave rise to civil remedy to a person who is a victim of the criminal conduct, entitled to recover damages.- Effect of statutory provisions relating to tort and Evidence Act
CONSTITUTIONAL LAW:- Section 6 (6) (b) of the 1999 Constitution of Federal Republic of Nigeria (as amended) – Whether did not preclude the concurrence of a civil suit and a criminal one over the same matter
PUBLIC LAW AND JURISPRUDENCE – CASE LAW – RATIO DECIDENDI:- Meaning – Rule that a case is only authority for what is actually decided – Implication
PUBLIC LAW AND JURISPRUDENCE – CASE LAW – SUPREME COURT AND PRECEDENT:- Ratio decidendi of the Supreme Court which is binding on lower courts – Whether restricted to the decision in lead judgments of the Supreme Court
PUBLIC LAW AND JURISPRUDENCE – CASE LAW – RULE IN SMITH V. SELWYN:- Origin – Historical distinction between private and public of the concept of non-simultaneous prosecution of a criminal charge and a civil suit in respect of the same transaction – Rule Smith V. Selwyn (1914) 3 KB 98 – Public policy justification – Duty to ensure prosecution of offenders against the law – Need not to neglect or sidestep prosecution through a recourse to civil suit which ensures recovery of stolen property or any equivalent or compensation for a felony without suit – Effect of
PUBLIC LAW AND JURISPRUDENCE – CASE LAW – RULE IN SMITH V. SELWYN:- Modern treatment – Three major modes of application of the rule – Established principle that in the application of the Rule in Smith V. Selwyn that the criminal prosecution is never struck out, stayed or prevented from proceeding because of a pending civil ligation on the same transaction of the criminal charge – Whether there is nothing preventing a simultaneous prosecution of a criminal charge along with a civil suit arising from the same transaction in Nigeria and even where such specific local legislations exist, it is the civil matter that awaits the criminal prosecution
PUBLIC LAW AND JURISPRUDENCE – COURT – PRECEDENT – OBITER DICTUM:- Meaning – An ‘obiter dictum’ as an observation by a judge on a legal question suggested by a case before him but not arising in such a manner as to require a decision – Whether it is therefore not binding as a precedent
TORT AND PERSONAL INJURY LAW – RULE IN SMITH V. SELWYN:- Applicability in Nigeria– Three recognised major modes of application of the rule – Whether it is now an established principle that in the application of the Rule in Smith V. Selwyn that the criminal prosecution is never struck out, stayed or prevented from proceeding because of a pending civil ligation on the same transaction of the criminal charge – Effects of specific local legislations such as the Tort Law of Anambra State – Whether there is nothing preventing a simultaneous prosecution of a criminal charge along with a civil suit arising from the same transaction in Nigeria and even where such specific local legislations exist, it is the civil matter that awaits the criminal prosecution
PRACTICE AND PROCEDURE – APPEAL – BRIEF OF ARGUMENT – ISSUES FOR DETERMINATION AND GROUND OF APPEAL:- Rule that issues for determination in an appeal must be confined to and circumscribed by the grounds of appeal and any issue not so related to the ground of appeal is incompetent – Enumeration of grounds of appeal and their particulars – Whether does not belong in the brief of argument but rather belong exclusively to the notice of appeal – Whether grounds of appeal start and end their journey in the notice of appeal and issues which reflect the grounds are argued in the brief
PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL:- Rule that ground of appeal must be couched in such a way as to attack the judgment of a Court on the issue decided by it – Need for a ground of appeal to contain precise, clear, unequivocal and direct statement of the decision being attacked by giving the exact particulars of the mistake, error or misdirection alleged –
PRACTICE AND PROCEDURE – COURT – JURISDICTION:- Hearing of a criminal charge while a civil litigation on same matter is pending – Whether there is no statutory provision or principle of law that forbids concurrent criminal and civil proceedings arising from the same matter
PRACTICE AND PROCEDURE – COURT – JURISDICTION:- Rule that jurisdiction of a court is a hard matter of law that can only be determined in the light of the enabling statute – Whether a court of law cannot add to or subtract from the provisions of a statute – Duty of a court to apply the jurisdictional limits and limitations as contained or provided in a statute
PRACTICE AND PROCEDURE – COURT – JURISDICTION: APPEAL – OMNIBUS GROUND OF APPEAL:- Omnibus ground of appeal in criminal cases – How couched – Whether should be couched to read that the decision is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced
PRACTICE AND PROCEDURE – EVIDENCE:- Evidence Act – Section 134 and 135 (1) (2) and of the Evidence Act, 2011 – Whether made provisions for trials (that is, criminal and civil) side by side, when it provided the standard of proof for each
MAIN JUDGMENT
ABDU ABOKI, J.C.A (Delivering the Leading Judgment):
This appeal is against the ruling of the Federal High Court Kano Judicial Division delivered on the 4th day of March 2011 by Shehu Yahaya J.
The facts that gave rise to this appeal are that the accused person (hereinafter called the respondent) was arraigned before the Federal High Court Holden in Kano, on a criminal complaint dated the 1st day of November, 2010 for contravening the provision of sections 1(a) and (b) of the counterfeit and fake drugs and unwholesome processed foods (miscellaneous provisions) Act, Cap F 33, Laws of the Federation of Nigeria, 2004.
Sequel to an application that was made by learned counsel to the respondent in this appeal, the charge against the respondent was struck out and the said respondent was accordingly discharged by the learned trial judge.
Aggrieved by the said ruling, the complainant (hereinafter referred to as the appellant) appealed to this Court via a notice of appeal containing 3 grounds of appeal.
Briefs of argument were in accordance with the relevant rules of this Court duly filed and exchanged and at the hearing of this appeal, the parties duly adopted the arguments and submissions contained in their respective briefs of argument and reply.
The appellant’s brief of argument dated 7/6/2011 and filed on 17/6/2011 was settled by Dr. Mike A. A. Ozelhome (SAN) while respondent’s brief of argument dated 18/10/2012 and filed on 5/11/2012 was settled by Ibrahim M. Boyi Esq.
The appellant’s reply brief of argument dated 20/11/2012 and filed on 21/11/2012 was settled by Godwin Iyinbor.
Learned counsel to the appellant in his brief of argument formulated 2 issues for determination to wit:
“(a). whether the jurisdiction of a criminal Court is fettered by the mere fact that a civil action has been commenced and/or is continuing in respect of the same subject matter (Distilled from ground 1)
(b). Whether the striking out of the charges and discharging the accused person accords with the concept of justice to all Stakeholders/Parties involved in the instant case. (Distilled from ground 2).
Learned counsel to the respondent as per his brief of argument formulated a sole issue for determination to wit:
“Whether from the unchallenged facts and circumstances of this matter, the lower Court was right to have followed the decision of this Court in the case of Akintunde v. Ojo (supra) relied upon by the lower Court in striking out the charge”.
Except for the mode of couching, the parties in their respective briefs of argument formulated the same issues for determination. I adopt the 1st issue for determination formulated by the learned counsel to the appellant for the determination of this appeal.
Learned counsel to the respondent in his brief of argument also raised a preliminary objection against grounds of appeal 2 and 3.
In support of the aforesaid preliminary objection, learned counsel to the respondent opined that the particulars of error accompanying ground one of the ground of appeal did not emanate from the decision of the lower Court and as such, there was no linkage between the said ground of appeal and the decision of the lower Court.
Learned counsel to the respondent referred the Court to the cases of Ahmed v. FRN (2010) All FWLR 538 at 861, Madumere v. Nwosu (2010) All FWLR (pt. 545) at 263 and Nwakodu v. Ohajuruka (2010) All FWLR (pt. 511) at 849.
He contended that grounds of appeal 2 and 3 ought to be struck for being repetitive and baseless.
In a reaction to the preliminary objection, learned counsel to the appellant in the appellant’s reply brief argued that the said preliminary objection ought to be struck out due to the fact that the respondent has not provided a three clear days notice before the hearing of this appeal and also the respondent has not clearly set out the grounds of the preliminary objection as contemplated by Order 10 Rule 1 of the Court of Appeal Rules, 2011.
Learned counsel referred the Court to the case of Mustapha v. Abubakar (2011) 3 NWLR (pt. 1233) 123 at 153.
He submitted that all the grounds of appeal filed by the appellant were valid and proper as they are attacking the decision of the lower Court.
Learned counsel referred the Court to the cases of Isermudiara v. Messrs F. G. S & Co. Ltd (2008) 7 NWLR (pt. 1085) 84 at 99 – 100, Dalek (Nig) Ltd (2007) 7 NWLR (pt. 1033) 402 at 430, Sterling Civil Engineering Ltd v. Yahaya (2002) 2 NWLR (pt. 750) 1 at 15, Ehinlano v. Oke (2008) 16 NWLR (pt. 1113) 357,
Usman v. Kaduna State House of Assembly (2008) All FWLR (pt. 397) 78 at 101.
Ministry for Works v. Tomas (Nig) Ltd (2002) 2 NWLR (pt. 283) 748 at 755 and page 61 of the records.
In conclusion, learned counsel to the respondent urge the Court to uphold the said preliminary objection.
In Folbod Investment Ltd v. Alpha Merchant Bank Ltd (1996) 10 NWLR (pt. 478) 344 at 351, the Court held that:
“A ground of appeal must be couched in such a way as to attack the judgment of a Court on the issue decided by it”
Similarly in Kalu v. Uzor (2006) 8 NWLR (pt. 981) 66 the Court held that:-
“A ground of appeal should contain precise, clear, unequivocal and direct statement of the decision being attacked. In other words, a ground of appeal must give the exact particulars of the mistake, error or misdirection alleged”.
Having critically examined grounds of appeal 1 and 2 respectively it became manifestly clear that the said grounds of appeal categorically and frontally challenged the decision of the lower Court.
Furthermore the said grounds of appeal were predicated upon the ratio decidendi of the judgment of the lower Court.
What the 2 grounds of appeal purportedly sought to convey was that the decision of the lower Court which held that concurrently pursuing a civil as well as a criminal case at the same time, was oppressive and consequently the criminal charge that was filed against the respondent was accordingly dismissed.
I am in no doubt that the said grounds of appeal had a direct bearing with the decision of the lower Court and are therefore declare competent.
In Isiekwe v. State (1999) 9 NWLR (pt. 617) 43, the Court held that:-
“The omnibus ground of appeal, in criminal cases, should be couched to read that the decision is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced”.
In the instant appeal, the appellant in his bid to formulate an omnibus ground of appeal formulated ground of appeal number 3 which reads as follows:
“GROUND THREE
The ruling is perverse, an abbreviation, a complete anomaly and ought not to stand”.
In the light of the judicial authority, referred to the purported omnibus ground of appeal that was formulated by the appellant is declared incompetent having not been formulated in a manner contemplated by law.
Having declared grounds of appeal 1 and 2 competent and ground of appeal number 3 incompetent, I shall now proceed to consider the sole issue for determination in this appeal.
On the said sole issue for determination, learned counsel to the appellant contended that the lower Court erred in law when it relied on the common law principle enunciated in the case of Smith v. Selwyu to hold that simultaneously pursuing a civil as well as a criminal case against the respondent was oppressive and as such the latter case was accordingly struck out by the lower Court.
Learned counsel to the appellant referred the Court to the case of Okafor v. Madubuko (2000) 1 NWLR (pt. 641) page 473.
Learned counsel to the appellant further contended that the principle enunciated in Smith v. Selwyu (1914) 3 KB 98 had in plethora of judicial authorities been declare inapplicable and obsolete.
Learned counsel to the appellant further referred the Court to the case of Ndibe v. Ndibe (1998) 5 NWLR (pt. 551) page 632, Abaye v. Ofili (1986) NWLR (pt. 14) and Altimate Inv. Ltd v. Castle & Cubicles Ltd (2008) All FWLR (pt. 417) 124 at 131 and section 36(a) of the Constitution of the Federal Republic of Nigeria 1999,
In conclusion learned counsel to the appellant urged the Court to upturn the ruling of the lower Court and accordingly remit this case for trial before another judge of the Federal High Court, Kano Judicial Division.
Learned counsel to the respondent on other hand in his brief of argument opined that contrary to the contention that the trial Court heavily relied on the case of Smith v. Selwyu (1914) 3 KB 19 as the basis for its ruling, and also relied on the case of Akintude v. Ojo (2002) FWLR (pt. 99) page 1158 in striking out the charge.
Learned counsel opined that the lower Court was under an obligation to follow the decision of the Court of Appeal in Akintude v. Ojo (supra) as the facts and circumstances of the case before the lower Court were similar to that in Akintude v. Ojo (supra). He alluded that the lower Court had no other option than to apply the decision encapsulated in Akintunde v. Ojo (supra) in the resolution of the issue before it.
In conclusion, learned counsel to the respondent urged the Court to dismiss this appeal.
In a further reaction learned counsel to the appellant in their reply brief opined that the sole issue for determination formulated by the respondent was incompetent as the said issue for determination did not emanate from the grounds of Appeal formulated by the appellant.
He referred the Court to the cases of Zabusky v. Israeli Aircraft Ind. (2008) 2 NWLR (pt. 1070) 109 at 131, Shalimu v. Akinola (1993) 5 NWLR (pt. 294) 434 at 444.
Learned counsel urge the Court to discountenance the sole issue for determination formulated by the respondent.
He submitted that the lower Court ought not to have placed reliance on the dictum of Onnoghen JCA in Akintunde v. Ojo (supra) in view of the fact that the said dictum constituted an obiter dictum and not the ratio decidendi of the case.
Learned counsel referred the Court to Black’s Law Dictionary 8th edition, Bryan A. Garner, Thomson West pub. Co page 1102, William M. Lile et al Brief Making and the use of Law Books 304 (3rd ed. 1914).
The Court was referred to the cases of Buhari & ors v. Obasanjo & ors (2003) 11 SC 74, Salami v. N. N. N (1999) 13 NWLR (pt. 634) 315 at 330,
Duke v. Global Excellence Comm. Ltd (2007) 5 WLR (pt. 900) 487.
Learned counsel to the appellant submitted that the issue of whether concurrently pursuing a civil suit and a criminal case against an individual was oppressive or not was not among the issues for determination that were considered by the Court in Akintunde v. Ojo (supra) as could evidently be deciphered from the lead judgment that was delivered by Okunola JCA, he argued that the statement that was made by Onnoghen JCA in the course of delivering his concurring judgment was an obiter which was not binding upon the lower Court.
Learned counsel referred the Court to the case of Akintunde v. Ojo (supra) page 315 – 316, page 27; Dairo v. UBN Plc & anor 7 SC (pt. 11) 97 page 60-61.
He opined that the facts that gave rise to the instant appeal were distinct and different from the facts in Akintunde v. Ojo (supra).
In conclusion, learned counsel to the appellant urge the Court to allow this appeal.
In Falola v. Union Bank of Nigeria Plc (2005) 7 NWLR (pt. 924) 405 at 413, the Supreme Court held that:
“In brief writing, issues for determination are confined to and circumscribed by the grounds of appeal and any issue not so related to the ground of appeal is incompetent.
Similarly in Adetoun Oladeji (Nig) Ltd v Nigerian Breweries Plc (2007) 5 NWLR (pt. 1027) 415 at 425, the Supreme Court held that:
A brief of argument is not the place to enumerate grounds of appeal and their particulars. They belong exclusively to the notice of appeal, not the brief parties take issue which deal with the grounds of appeal in their briefs. In other words, grounds of appeal start and end their journey in the notice of appeal and issues which reflect the grounds are argued in the brief”.
In the instant appeal, the sole issue for determination that was raised by learned counsel to the respondent reads thus:
“Whether from the unchallenged facts and circumstances of this matter, the lower Court was right to have followed the decision of this Court in the case of Akintunde v. Ojo (supra) relied upon by the lower Court in striking out the charge?”
Ground two of the notice of appeal that was filed by learned counsel to the appellant, it provide thus:
“GROUND TWO
The learned trial judge erred in law when he struck out the charges against the accused person and discharged him and thereby occasioned a miscarriage of justice?”
It is manifestly clear that the issue for determination which the learned counsel to the appellant is challenging its competency is closely related to ground two of the notice appeal that was filed by its counsel, both the issue for determination as well as ground of appeal number 2 revolve around determining the correctness or other wise of the ruling of the lower Court striking out the charges against the respondent in this appeal. The said issue for determination as formulated by the respondent is therefore competent.
In Ajibola v. Ajadi (2004) 14 NWLR (pt. 892) page 14 at 21 the Court defined a ratio decidendi as:-
“…the enunciation of the reason or principle on which a question before a Court has been decided. In other words it is the general reasons given for the decision or the general grounds on which is base4 detached or abstracted from the specific peculiarities of the particular case which rise to the decision”.
Similarly, in Mohammed v. Lawal (2006) 9 NWLR (pt. 985) 400 at 405, the Court held that:-
“Ratio decidendi represents the reasoning or principle or ground upon which a case is decided. It is the legal principle formulated by the Court which is necessary in the determination of the issues raised in the case”.
In Akintunde v. Ojo (2002) 4 NWLR (pt. 757) page 284, the issues for determination before the Court of Appeal, were:-
“1. Whether a plaintiff may issue a writ of summons in Ekiti State and create address for the Defendant within Ekiti State and serve the writ of summons on the defendant who, to the knowledge of the plaintiff resides and carries on business in Ondo State, so as to dispense with the leave of Court.
- Whether failure to obtain the leave of the lower Court before the issuance and service of the writ of summons does not render the writ of summons issued null and void.
Or
Whether the write of summons in this action was void for non compliance with Order 5 rule 6 and 14 of the Ondo State Rules of the High Court as applicable in Ekiti State and sections 97, 99 and 103 of the Sheriffs and Civil process Act, Cap 407 of 1990″.
It is very clear that the issues for determination that were considered by the Court of Appeal in the case of Akintunde v. Ojo (supra) by Okunola JCA (of blessed memory) who delivered the lead judgment in the aforesaid case never made any pronouncement bordering on the issue of whether concurrently pursuing a criminal as well as a civil case against the same person is oppressive.
Hence the pronouncement made by Onnoghen JCA [in] his concurring judgment in Akintunde v. Ojo (supra) was an obiter as the said pronouncement had no bearing whatsoever to the issues for determination that were before the Court of Appeal. In fact Onnoghen JCA himself alluded to the fact that the said statement was an obiter when he stated at page 315.
“Before concluding this judgment, it is necessary for me to pass one or two comments on the facts of this case”.
The obiter which the lower Court heavily relied on in the case which is the subject of the instant appeal was uttered after the said provisor was made. In Salami v. N. N. N Ltd (1999) 13 NWLR (pt. 634) 315 at 330, the Court held that:-
“An ‘obiter dictum’ is an observation by a judge on a legal question suggested by a case before him but not arising in such a manner as to require a decision. It is therefore not binding as a precedent. Thus, in the earlier appeal, the pronouncement of the learned Justice of the Court of Appeal, who had sat on the earlier appeal in CA/K/147/89 was nothing more than an observation, an obiter dictum, because the issue of the status of the parties was not before the Court”.
In the same vein, the Court in Obasanjo v. Yusuf (2004) 9 NWLR (pt.877) 144 at 170 held that:-
“A case is only authority for what is actually decided. In other words, it is only the ratio decidendi of a Supreme Court judgment that binds the Court and the lower Courts and not the obiter dicta in concurring judgments”.
Similarly, in Abacha v. Fawehinmi (2000) 4 SC (pt. II) 1 the Supreme Court held that:-
“A judgment is what may be described as the ratio decidendi of a case in contrast to the passing remarks otherwise made by the Court in the course of preparing the judgment. Ratio decidendi contained in the leading judgment or in a judgment of the trial Court constitutes the authority for which the case stands while the obiter dicta are other expressions contained in the judgment and they only have a persuasive effect in other occasions”.
Sequel to the foregoing judicial authorities therefore, this appeal is hereby allowed. The Chief Judge of the Federal High Court is hereby ordered to reassign this case to another judge of the Federal High Court, Kano Judicial Division for a trial de novo.
ITA G. MBABA, J.C.A:
I have read the Lead Judgment of my learned brother Abdu Aboki, JCA, in this appeal and I agree with his reasoning and conclusions. I should however add by way of comment that there have been, in recent times, some public outcry for the need to reform or review the criminal Justice System in our country, so that victims of crimes can also receive remedies or reparation, personal to them, in addition to punishment for the criminal conduct, which only satisfies the interest of the state in [levying] the prosecution. While such progressive reformations or reviews are yet to be made, to incorporate personal remedy for victims of crime into criminal prosecution, there is, obviously, nothing judicially oppressive, in my view, for a victim of criminal action maintaining a civil claim for recovery of pecuniary or personal relief from the suspect of the criminal action, which gave rise to the criminal trial, and the civil claim can go on, side by side, without clashes on dates of hearing, which the counsel concerned can always arrange with the consent of the court(s) trying the causes.
It cannot be imagined that a criminal trial is a statutory bar to civil prosecution over a civil liability, where the criminal conduct also gave rise to civil remedy to a person who is a victim of the criminal conduct, entitled to recover damages. The Evidence Act appears to have made provisions for such trials (that is, criminal and civil) side by side, when it provided the standard of proof for each. See Section 134 and 135 (1) (2) and of the Evidence Act, 2011:-
(134) The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.
(135) (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.
(2). The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
See also Section 6 (6) (b) of the 1999 Constitution of Federal Republic of Nigeria (as amended), which is to the effect that the judicial powers of the Court:
(b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;
I believe that contemplates both Civil and Criminal remedies in any given situation, and there is no law stipulating that civil action should abate when a criminal action relating to it goes on! Both civil and criminal Suits can go on, side by side, provided they are not initiated in a manner that can amount to abuse of the process of Court, clearly highlighted in the case of OGOEFEOFO V. OGOEJEOFO (2006) 3 NWLR (Pt. 966) 205, thus:-
(a) Instituting multiplicity of a actions on the same subject matter against the same issues or multiplicity of actions on the same matter;
(b) Instituting different actions between the same parties, simultaneously, in different courts, even though on different grounds;
(c) Where two similar processes are used in respect of the exercise of the same right;
(d) Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of facts already decided by the court;
(e) Where there is no law supporting a court process or where it is premised on frivolity or recklessness”
With this and the other reasons in the lead judgment I too allow the appeal and abide by the consequential orders there in.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A:
I have had the privilege of reading the lead judgment delivered by my learned brother, Aboki, JCA. I agree with the reasoning and conclusions. I only wish to make some additional comments.
In this case, a company called Gongoni company Limited commenced a civil action against the Respondent on the 6th of October, 2010 in suit No FHC/K/CS/60/10 in the Federal High Court Kano for infringement of its trademark in respect of “Rambo Insecticide” and for passing off his product, Rambo Insecticide, as the product of Gongoni Company Limited by illegal use of the company’s trademark. While the civil matter was pending, the Appellant, through the National Agency for Food and Drugs Administration and Control (NAFDAC) on the 3rd of November, 2010 filed criminal charge in FHC/K/CR/173/2010 against the Respondent on the allegation of importation and/or possession of fake drugs, i.e. Rambo Aerosol Insecticide. Both the civil and criminal actions were pursued simultaneously against the Respondent. Counsel to the Respondent filed an application against criminal charge praying that it be dismissed and one of the grounds upon which the application was predicated was that the charge was oppressive. The lower court acceded to the application of the Respondent and it struck out the criminal charge and discharged the Respondent. The lower court relied on the decision of the court of Appeal in Akintunde v. Ojo (2002) FWLR (Pt 99) 1158.
In Akintunde v. Ojo supra, Onnoghen, JCA (as he then was) commented in his contributory judgment thus:
“From the endorsements on the said exhibit (D) the appellant was arraigned on 18/3/2000 whereas the writ of summons was issued on 18/3/2000 followed by a statement of claim on 31/3/2000. It is clear from the record that both the charge and civil action being pursued simultaneously against the appellant arise from a simple transaction between the parties. If this not oppressive, tell me what it is? It is important to not to allow the institution for administration of justice to be used as machinery for oppression of anybody for whatever reason. If this is allowed, it will jeopardize the Rule of Law which is the foundation of every civilized society including Nigeria.”
It was these comments that the lower Court relied on in striking out the criminal charge against the Respondent. A read through the law report of the case of Akintunde v. Ojo supra shows clearly that the comments were made in passing by the learned judgment and did not form part of the reasons for the judgment delivered in the case.
This appeal raises an important point of whether a trial Court can circumscribe its jurisdiction to hear and determine a criminal charge against an accused person simply because a civil case had been instituted against the same accused person and was being prosecuted simultaneously in respect of the same transaction forming the basis of the criminal charge. The concept of non-simultaneous prosecution of a criminal charge and a civil suit in respect of the same transaction was introduced into the common law jurisprudence by the English case of Smith V. Selwyn (1914) 3 KB 98 and it gave rise to what came to be referred to in legal parlance as the Rule in Smith V. Selwyn. The rule states that a plaintiff who has alleged a felony against a defendant cannot make 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 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 in Smith V. Selwyn was founded on public policy which required that offenders against the law shall be brought to justice and for that reason a man is not permitted to abstain from prosecuting an offender, by receiving back stolen property or any equivalent or compensation for a felony without suit and off course cannot be allowed to maintain a suit for that purpose.
The history of the question involved in the case of Smith V. Selwyn shows that it has at different times by different authorities been resolved in three distinct ways; namely:
- That the private wrong and injury has been entirely merged and drowned in the public wrong and therefore no cause of action ever arose and could arise;
- That although there was no actual merger, it was a condition precedent to the accruing of the cause of action that the public rights should have been vindicated by prosecution of the felon; and
- The third and the most recent view is that there is neither a merger of the civil right nor is it a strict condition precedent to such right that there shall have been a prosecution of the felon, but that there is a duty imposed upon the injured person, not to resort to the prosecution of his private suit to the neglect and exclusion of the vindication of the public law.
See Midland Insurance Co V. Smith (1880-81) 6 QBD 561 and Ndibe V. Ndibe (1998) 5 NWLR (Pt 551) 632. It is essential to note that in none of the three stated instances or ways of application of the rule in Smith V. Selwyn was the criminal prosecution ever struck out, stayed or prevented from proceeding because of a pending civil ligation on the same transaction of the criminal charge. It was always the civil action that had to await the criminal prosecution – see the cases of Ndudi V. Aniglo (1958) NRNLR 96, Haco V. P V Udeh (1959) NRNLR 61, Ibekwe V. Pearce (1960) NRNLR 12.
Further, the said rule in Smith V. Selwyn was considered anachronistic and was abolished in England by the Criminal Justice Act 1967. There are authorities of our Court of Appeal that are of the view that the rule is no longer applicable in Nigeria – Veritas Insurance Co Ltd. V. Citi Trust Investment (1993) 3 NWLR (Pt 281) 349, Ndibe V. Ndibe supra, Okafor V. Madubuko (2000) 1 NWLR (pt 641) 473 and Ekerete V. United Bank for Africa (2005) 9 NWLR (Pt 930) 401. Thus, apart from specific local legislations such as the Tort Law of Anambra State, as was noted by the Court of Appeal in Ndibe V. Ndibe supra, Okafor V. Madubuko supra, 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.
It is not in doubt that the lower Court in the instant case had the requisite jurisdiction to entertain the criminal charge brought against the Respondent by the Appellant. Now, it is trite that jurisdiction of a court is a hard matter of law that can only be determined in the light of the enabling statute. A court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A court cannot do more than this – Atiku v. Bodinga (1988) 2 NWLR (pt 76) 369, Oloba v. Akereja (1988) 3 NWLR (pt 84) 508 and Anibi v. Shotimehin (1993) 3 NWLR (pt 282) 461.
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 of there being a pending civil litigation against the accused person for the same transaction. The lower court in the instant case did not refer to any such statutory provision or principle of law and none was mentioned by the counsel to the Respondent in his brief of argument. The case of Akintunde v. Ojo supra relied upon by the lower court did not lay down any such principle. It is noteworthy that the criminal charge referred to by the Onnoghen, JCA (as he then was) in Akintunde v. Ojo supra was not struck out on the basis of the said comments. The decision of the lower court thus had no basis in law.
It is for these reasons, and the more detailed reasons contained in the lead judgment, that I also find merit in this appeal, and set aside the judgment of the lower Court. I abide the consequential orders in the lead judgment.
