By Safi Jimba
General Principle of Liability (XIV)
THE RULE IN SMITH V. SELWYN: Where a tort is also a felony, the cause of action is not extinguished, though the action will be stayed until the felon has been prosecuted. This rule, which applies only in the case of felonies and not in the case of misdemeanours, is based upon public policy, which requires that the rights of the public should be vindicated before those of the private person, i.e., the individual. The rule is known as the โRule in Smith v. Selwynโ after the case of that name ([1914] 3 K.B 98).
Where a plaintiff brings a civil action before the prosecution of the felon, the defendant’s remedy is by a stay of the civil proceedings, and not by striking out the claim. (Haco Ltd. v. P.O. Udeh [1959] N.R.N.L.R. 61.)
Where there is no duty on the plaintiff to institute criminal proceedings against the defendant, a civil action brought by him before a prosecution if brought will not be stayed. (E. Nsude v. J.E Anigbo [1958] N.R.N.L.R. 96)
Where a plaintiff has done everything that could reasonably be expected of him by reporting the matter to the police but no prosecution is brought within a reasonable time, the plaintiff may be allowed to bring a civil action. It is not his duty to first bring a private prosecution on his own initiative (W.A. Ibekwe v. Pearce and another [1960] N.R.N.L.R 12.)
Where compensation is ordered at the criminal to be paid to the injured person, that person cannot refuse such compensation and bring a civil action for damages for his injuries. (John Mark v. Sampson Toe (1934) 2 W.A.C.A 170.). To be continued next week
