Felony and Civil Action. Southern states unanimously provide that where an act constitutes a felony and at the same time infringes some rights of, or causes damages to a person, the person so affected by the act shall not bring an action against the person who committed the felony until such person shall have been prosecuted for the felony, unless satisfactory explanation is given for non-prosecution.
This is a codification of the rule in the English case of Smith V. Selwyn (1914) 3 K.B. 98, which hitherto applied to the entire country. However, with the introduction of the Panel Code, the rule was held no longer applicable in the northern states. The effect of this rule has also been watered down in Southern Nigeria; See the case of Oyewale V. Okoli (1975), Kaduna High Court, unreported.
Legal Terminologies – Felony and Civil Action
Every profession or business has its jargon. No less, so with the legal profession. These jargons are useful, because they go a long way to eliminate linguistic and terminological inexactitudes.
For instance in accounting parlance, the term Balance Sheet does not mean any sheet of paper containing any type of balance, but it immediately evokes in the mind of any accountant an “account” of a special type containing basically the assets and liabilities of a given business concern. It has a pattern or format.
In legal parlance, terminologies adopted in civil proceedings differ from that of criminal proceedings. A person brought to a court on a criminal charge is called the accused whereas the party who instituted the criminal action is known as the prosecutor or prosecution. On the other hand, the person taken to court on a civil matter is called the Defendant whereas the party who instituted the action is called the plaintiff.
Sometimes, the nomenclature changes. For instances in Election or divorce matters, which are civil, the petitioner sues the respondent. In criminal proceedings, the prosecutor charges the accused but a plaintiff or Respondent in civil action sues the Defendant or petitioner. An accused is served an arraignment notice requiring him to attend court; a defendant is served a writ of summons commanding him to enter an appearance.
In criminal proceeding, the accused takes his plea that is an answer to the charge. He admits being guilty or says he is not guilty of the allegation against him.
In Civil proceedings on the other hand, the Defendant pleads liable or not liable. The prosecution is required to prove the case against the Accused beyond all reasonable doubts, but the plaintiff succeeds on the balance of probability or preponderance of evidence.
A case is concluded in favour of an Accused if he is not found guilty. He is then discharged or acquitted or may be discharged and acquitted. If he is found guilty, he is convicted and may be bound over to be of good behavior for a definite period of time, he is convicted and may be bound over to be of good behavior for a definite period of time, fined or sentenced to imprisonment for a specified period of time. In a civil matter which is concluded in favour of the plaintiff, the suit succeeds and judgment is said to be given for the plaintiff.
The judgment specifies the remedy approved by the court, which may be an order for the Defendant to pay damages to the Plaintiff or an injunction compelling the Defendant to refrain from doing an act or an order of specific performance compelling the defendant to do a particular thing.
A request made to court for a temporary relief in course of trial or pending the determination of a suit comes to court by way of Motion. A motion may be made ex parte that is in the absence of the other party or on notice, in which case the other party must be present. The party who brings the motion is the Applicant whereas the other party to the motion is the Respondent.
Once a judge delivers judgment, he becomes functus officio in respect of the case. This means he has no power to revisit the case or review it except for purposes of correcting minor typographical or computational errors. The recourse against a judgment is an appeal, which must be lodged with the next court in the hierarchy of courts above the court of first instance. In both criminal and civil proceedings, he who appeals is the Appellant and the other party is the Respondent.
Where on appeal the higher court decides against the decision of the lower court, it is said that the lower court’s decision is reversed. If a court in another case decides against its previous stand or that of a lower court on the same issue, the previous decision is overruled.
On the other hand, where a court desires to retain the ratio in a previous decision and does not want to depart from it in another case, which case is almost the same as the previous, the court has got to distinguish that present case from the previous. It does this by showing that the issues involved in the previous case contain some elements making it different from the present.
The court in which a case was heard first is known as the court of first instance. In Civil proceedings, held in court of first instance, the name of the plaintiff is written first so that the title of the case reads the plaintiff before the defendants. For instance, Owoyemi V. Adekoya (2003) 12 SCNJ 131; the plaintiff is Owoyemi and the Defendant is Adekoya. The intervening consonant ‘V’ is pronounced ‘and’.
In criminal proceedings, the prosecutor’s name is written first. Thus in The State V. Ubani, The State is the Prosecutor and Ubani is the accused. The medial ‘V’ is pronounced against.
On appeal, the appellant’s name is written first. If the case name contains the word ex-parte followed by a name it means that the case was brought at the instance of the person so named; thus in State V. President, Mbamisi Customary Court, ex-parte Mbionwu, the applicant is Mbionwu.
However, it would be noted that this has been rendered obsolete by state procedural laws, which simply provides for the use of the terms Applicant and Respondent respectively. See for instance, Order 37 Rule 11, of High Court Rules, Anambra State, Revised Edition of 1991.
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