THE JUSTIFICATION OF THE RULE IN SMITH VS. SELWYN
The common law rule in Smith v. Selwyn opine thus “that where a civil wrong also constitute a felony, an action in crime must be instituted first before a civil action filed by the plaintiff can be heard”. For instance, where a tortuous act also amounts to a felony which is a criminal in nature, a civil action in tort should be preceded by a criminal prosecution under the law of crime. In other words, the rule in Smith v. Selwyn has it that if a head of action arise under civil and criminal law(felony) in the same offence, a civil action was not to be brought against the wrong doer until he has been prosecuted or that a reasonable excuse has been given for not prosecuting the wrongdoer as an accuse under the criminal proceedings. It is important to note that crime here is limited to felony.
Where this rule was not accurately observed, the plaintiff action was never given a ground to proceed and if in any case the matter was heard, there was every tendency of such civil matter failing.
This rule was followed in Nigeria in the case of Nwankwa v. Ajaegbu (1978) LRN 230. In this case, Ukatah J. Proffered an exception to this rule to the effect that if the prosecution of the matter rested in the hands of the Police, if the police decide not to prosecute, the plaintiff can go ahead to file a civil action against the offender or wrongdoer.
Be that as it may, the rule in Smith v. Selwyn has been abolished in United kingdom, Britain, Nigeria, etc.
In Nigeria, it is abolished in the view of the fact that the rule per se is a violation of the provision of the Nigerian Constitution and other statute including the Criminal Code Act and the Interpretation. Section 6(6)b, 17(2)e, 46(1) and 315(3) of the 1999 Constitution of the Federal Republic of Nigeria, guarantees the right of access to court for every person to institute an action for the protection and determination of civil rights and obligations.
In the case of Veritas Insurance Ltd. V. Citi Trust Investment Ltd (1993) 3 NWLR (Pt. 281) 349 @ 365, Niki Tobi JCA, in his unanimous judgement vehemently held that in view of the Nigerian Constitution, the Criminal Code Act and the Interpretation Act, this rule no longer apply in Nigeria.
For the purpose of clarity, section 5 of the Criminal Code Act has it clear that
“When by the Code any act is declared to be lawful, no action can be brought in respect thereof. Savings Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed…”.
The contention here is that the existence of the Criminal Code Act which creates several offenses does not limit the enforcement of other rights a person may have outside the Criminal Code Act.
It is also encapsulated in Section 8(2) of the Interpretation Act that
“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. “.
The effect of the above provision is that an act providing for punishments which is a brainchild of criminal law shall not truncate a person from seeking remedy in court for damages.
The court in the case of Tika Tore Press v. Umar (1968) 2 All NLR. 107 also refused to followed the rule in Smith v. Selwyn as such rule does not apply in Nigeria in the light of various statutes that are in force in the country.
Recently in the case of Alamieyeseigha V. FRN and ors (2006) LPELR-11670(CA) Per ADAMU, J.C.A. in addressing this issue asserted as follows: “I agree with and accept the respondent’s submission on the abrogation of the archaic rule in Smith v. Selwyn (1914) 3 KB 98 or its inapplicability in Nigeria for its being a “clog in or to the wheel of administration of justice”
Also, in the case of Abaver v.Alaga (2018) LPELR-46566(CA) Oho J.C.A reaffirmed the above position of the law vividly that
“the rule in SMITH VS. SELWYN 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”
In view of the provisions of the Constitution and other statutes in Nigeria, it is not worthwhile to toe the line of the rule in Smith v. Selwyn. Apart from the sacred standing of our laws, it is equally unjust and unfair to stop a person from instituting an action in court to enforce his civil right merely because an outstanding crime or felony on the same commission or omission has not been tried beforehand. An aggrieved person will gain nothing in criminal prosecution (except appeasement which might not replace any loss suffered by the aggrieved or injured persons), in fact a criminal matter is a concern of the state at most. Whereas a civil action will make available a remedy that will be of interest to the aggrieved person ( damages, injunction, specific performance, etc).
Written and edited
Law student UNIUYO