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In The Supreme Court of Nigeria

On Monday, the 6th day of March, 1989

SC. 215/1988 & SC. 216/1988

 

Before Their Lordships  

 

 

Mohammed Bello

......

Chief Justice of Nigeria

Andrews Otutu Obaseki

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modigbo Alfa Belgore

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

Ebenezer Babasanya Craig

......

Justice, Supreme Court

 

 

Between

 

Col. Halilu Akilu

.......

Appellant

And

Chief Gani Fawehinmi

.......

Respondent

 

And

 

Between

Col. Halilu Akilu

.......

Appellant

And

Chief Gani Fawehinmi

.......

Respondent

 

 

Judgment of the Court

Delivered by

Adolphus Godwin Karibi-Whyte J.S.C

 

On the 5th December, 1988, after argument by the parties. I allowed this appeal and indicated that I will give my reasons today. I therefore state below the reasons. The two appellants involved in this judgment S.C. 215/88 and S.C. 216/88 have by the circumstances of their appeals and the course of their history and association with each other have agreed that S.C. 216/88 will abide by the result of S.C. 215/88.

 

The facts of this appeal, which are identical in all material respects with S.C. 216/88, justify the wisdom of the arrangement. The subject matter of this appeal as is S.C. 216/88 is to set aside the order for stay of proceedings in Suit No. ID/312/88 and Suit No. ID/313/88 granted by the Court of Appeal. The Court of Appeal allowed the appeal and set aside the decision of Ilori. J., of the High Court of Lagos State. Ilori. J., has dismissed the application to stay proceedings in Suit No. ID/312/88 pending the determination of the appeal in Suit No. M/87/88. This application to stay proceedings in Suit No. M/87/88 is a variant of the usual application for stay of proceedings, which relates to pending appeals in the same case. The facts of this appeal before us could be traced to the immediate cause and the remote cause. The immediate cause is the dismissal by Ilori. J., of the High Court of Lagos State of the application of the Respondent in this appeal who was the defendant in Suit No. ID/312/88, an action for libel, either to strike out the suit, on the ground that it is an abuse of process of the court, or to stay further proceedings in the suit, "pending final determination of Suit No. M/87/88 and any criminal preceding that may be commenced thereupon against the plaintiff/respondent in this case for conspiracy to murder and murder of Dele Giwa.

 

The background to this action goes back to the series of applications brought by Respondent requesting the Attorney-General of Lagos State to initiate criminal proceedings against Col. Halilu Akilu and Lt. Col. A.K. Togun, or to endorse the certificate to enable Respondent to prosecute the named officers as a private prosecutor. The last of the attempts which resulted in the libel action took place on the 24th February 1988. On 24/2/88 Respondent submitted to the Attorney-General of Lagos State a fresh information claiming to contain additional evidence charging Plaintiffs/Appellants with the offences of conspiracy to murder and the murder of Dele Giwa and requesting the exercise of the Attorney-General's discretion under section 342 of the Criminal Procedure Law of Lagos State to decide whether or not to prosecute the two persons as per the said information. If the Attorney-General declined to prosecute, to so endorse a certificate on the information. Plaintiffs/Appellants allege that the Defendant/Respondent on that day also published to numerous daily newspapers or magazines a letter of the same date in which he enclosed a document accusing the Plaintiffs/Appellants of murder and of conspiracy to murder Dele Giwa. On the same date 24/2/88 Defendant/Respondent filed Suit No. ID/329/88 against the Attorney-General and the Plaintiffs/Appellants seeking two declaratory reliefs.

 

The Attorney-General had up till that time not exercised discretion under section 342 of the Criminal Procedure Law. It is pertinent to point out that on 23/2/88 Longe. J., of the High Court of Lagos State had quashed the information filed by the Attorney-General against the Plaintiffs/Appellants on the ground that the Attorney-General did not obtain the direction of a High Court Judge before filing the information, and that the facts contained in the proofs of evidence were insufficient to support the information.

 

On the 24th February, 1988, Defendant/Respondent applied to the High Court of Lagos State in Suit No. M/87/88 for an order for leave to apply for an order of Mandamus against the Attorney-General to exercise her discretion whether or not to prosecute Plaintiffs/Appellants for conspiracy to murder and murder of Dele Giwa and if she declined to prosecute to endorse a certificate to that effect on the information. Thus the effort to file the information having failed, Defendant/Respondent resorted to application by mandamus.

 

On the 2nd March, 1988 the application for leave to apply for an order of mandamus was granted. The Plaintiffs/Appellants applied for leave to appeal against the order for leave to apply for mandamus, against the ruling dismissing their preliminary objection. They also applied for stay of further proceedings in Suit No. M/87/88. The application for stay of proceedings in Suit No. M/87/88 was granted.

 

It is clear from the summary of the account of the litigation between the parties that Defendant/Respondent filed all the three suits accusing the Plaintiffs/Appellants of conspiracy to murder and murder of Dele Giwa. The only suit filed by Plaintiffs/Appellants, in respect of which the Defendant/Respondent is seeking a stay pending the appeal in Suit No. M/87/88 is a claim for libel arising from Suit No. M/87/88.

 

I have outlined the course of the litigation between the parties because it is necessary in an application for stay of proceedings to consider all the circumstances of the case and the need for granting or refusing the stay of proceedings.

Thus at the time the application for stay was granted, the position of the parties was as follows -

 

1.    On an order dated 21/1/88 Defendant in Suit No. M/513/86 was granted an order of mandamus to issue against Mr. Oduneye to A exercise his discretion to prosecute or not the appellants.

 

2.    On the 23rd February, 1988 the information filed by the Hon. Attorney-General of Lagos State against the Plaintiffs/Appellants, for conspiracy to murder and murder of Dele Giwa was quashed by Longe, J. The information quashed was filed as charge No. ID/4c/88.

 

3.    On the 24th February, Defendant/Respondent filed Suit No. LD/329/88 against the Attorney-General of Lagos State and the Appellants seeking several Declaratory reliefs the main reason for which is to declare a nullity the ruling of Longe J., in charge No. ID/4c/88.

 

4.    On the 29th February, 1988 Defendant/Respondent filed a Motion, i.e. Suit No.M 87/88 for an order for leave to apply for an Order of Mandamus against the Attorney-General to exercise her discretion whether or not to prosecute Plaintiffs/Appellants, if she declined to endorse a certificate to that effect. The leave to apply for an order for mandamus to issue was granted on 2nd March, 1988.

 

5.    The application for an Order of Mandamus has not been made.

 

6.    Stay of proceedings on Suit No. M/87/88 has been granted on the application of Plaintiffs/Appellants in Suit No. M/87/88.

 

This was the. Position on the 7th March, 1988 when Plaintiffs/Appellants filed the writ of summons in the High Court of Lagos in Suit No. ID/312/88 claiming as follows -

 

And the Plaintiff claims against the defendant the sum of N5,000,000 (Five million naira) being damages for words falsely and maliciously published by the defendant of and concerning the plaintiff to numerous publishers of daily newspapers and magazines in Lagos.

 

The statement of claim in paragraphs thereof sets out the words complained of by reproducing the text of the information containing the offences with which Plaintiffs/Appellants were accused of and signed by the Defendant/ Respondent. The statement and particulars of the offence state as follows -

 

5.     By the publication of the said words, the plaintiff has been greatly injured in his credit and reputation and has been brought into scandal, odium and ridicule.

 

Words Complained of

 

IN THE CRIMINAL DIVISION OF THE HIGH COURT OF LAGOS STATE

IN THE IKEJA JUDICIAL DIVISION

HOLDEN AT IKEJA.

CHARGE No.

 

  CHIEF GANI FAWEHINMI

......

PROSECUTOR 

 

V

 

1.             COLONEL HALILU AKILU 

......

2.            LT. COLONEL A.K. TOGUN

......

ACCUSED

 

At the Criminal Division of the High Court of Lagos State holden at Ikeja on the …………day of…….. 1988, the Court is informed by CHIEF GANI FAWEHINMI that:

 

1.        COLONEL HALILU AKILU,

           DIRECTOR OF MILITARY INTELLIGENCE

 

AND

 

2.        LT. COLONEL A.K. TOGUN

           DEPUTY DIRECTOR OF STATE SECURITY SERVICE

 

are charged with the following offences:

 

1st Count

Statement of Offence

MURDER contrary to Section 319(1) of the Criminal Code Law, Cap.31, Laws of Lagos State, 1973.

 

Particulars of Offence

Col. Halilu Akilu and Lt. Col. A.K. Togun on Sunday the 19th of October, 1986 at 25 Talabi Street, Ikeja, in the Ikeja Judicial Division, murdered Dele Giwa.

 

2nd Count

Statement of Offence

CONSPIRACY to commit a felony to wit: Murder contrary to Section 324 of the Criminal Code Law Cap. 31 Laws of Lagos State 1973.

Particulars of Offence

Colonel Halilu Akilu, Director of Military Intelligence And Lt. Colonel A. K. Togun, Deputy Director of State Security Service on or about the 19th day of October, 1986, conspired together and with other persons unknown, to MURDER one DELE GIWA (Male), by despatching a Letter Bomb to the said DELE GIWA at No. 25 Talabi Street Ikeja, in the Ikeja Judicial Division, Lagos, with intent to cause his death.

 

The Defendant/Respondent entered conditional appearance and then brought an application dated 21/3/88 seeking an order of the Court

(1) to strike out the suit on the ground that it is an abuse of the process of the court, or in the alternative

(2) to stay the proceedings or further proceedings pending the final determination of Suit No. M/87/88 and any criminal proceeding that may be commenced against the Plaintiff/Respondent in this case for conspiracy to murder and murder of Dele Giwa.

 

On the first ground Defendant/Respondent relied on the contention that the suit is an abuse of the process of the Court, a violation of section 36 of the Constitution 1979 and the right of the Defendant as a private prosecutor under section 342 of the Criminal Procedure Law. Cap.32 of Lagos State, as interpreted by the Supreme Court in Chief Gani Fawehinmi V. Col. Halilu Akilu (1987) 4 N.W.L.R. (Pt.67) 797.

 

On the alternative ground, Defendant relied on the same reason of the abuse of the process of the Court.

 

After hearing argument on the application, lIori J., in a ruling dated 6/5/88 dismissed the application and granted Defendant/Respondent extension of time of 14 days to file and serve his statement of defence. The second application for stay of further proceedings before Ilori J., dated 7th May, 1988 was dismissed on 3rd June, 1988 Defendant/Respondent appealed to the Court of Appeal from the decision of Ilori J., dated 6th May. 1988. In an identical application dated 6th June, 1988, but filed on 8th June, 1988, he then brought an application in the Court of Appeal under Section 6(6)(A) and 221(1) of the Constitution 1979 for an order staying further proceedings in suit No. ID/312/88 pending the hearing and final determination of the appeal against the Ruling of lIori J., dated 6th May, 1988.

 

In a ruling delivered on the 15th September, 1988 the Court of Appeal granted the application and made an order staying further proceedings in the trial court in Suit No. ID/312/88 pending the final determination of the appeal in Suit No. M/87/88 i.e. the application for leave to apply for an order for mandamus. The Court of Appeal in granting the application and staying further proceedings in ID/312/88 made certain propositions of law, which are also the subject matter of challenge in this appeal before us. It was stated that wherever an individual evinces an intention to bring a criminal prosecution against another, a subsequent civil action by the person affected against the prosecutor ought on the same matter to be stayed because a criminal prosecution must take precedence. Again, it was held that it was unethical to allow a civil action to proceed whilst a criminal prosecution was pending. The court did not find the civil proceeding an abuse of the court process. It. however, held that a mandamus proceeding though civil in nature can and has crystallised into a criminal proceeding. It is pertinent to point out that Defendant/Respondent has not filed his statement of defence in Suit No. ID/312/88. The appeal before us is against the ruling of the Court of Appeal staying further proceedings in Suit No. ID/312/88 till the determination of the Appeal in Suit No. M/87/88 and any criminal proceeding that may be commenced against the Plaintiffs/Appellants arising therefrom for conspiracy to murder and murder of Dele Giwa.  

It seems obvious from the contention of the Respondent/Defendant that the grounds for seeking stay of proceedings in Suit No. ID/312/88 is that the Suit No. ID/3 12/88 having been filed when appeal in Suit No. M/87/88 was still pending is not only an abuse of the process of the court, a violation of the right as a private prosecutor but also vexatious, oppressive and intimidating the Respondent/Defendant.

 

Appellant has filed eleven grounds of appeal against the ruling of the Court of Appeal. The grounds of appeal allege the errors committed in the exercise of its discretion, its consideration of the principles applicable for a stay of proceedings in cases of this nature, and error in its consideration of the Suit No. M/87/88, the mandamus proceedings. I shall for the sake of clarity reproduce below the grounds of appeal without their particulars.

 

Grounds of Appeal

 

(i)      The court below erred in law in basing their decision on the ground (inter alia) that it would not be right to let the libel action take off before the criminal proceedings now pending before Agoro.J.

 

(ii)    The court below erred and misdirected itself in law in holding as follows:

 

In Shackleton V. Swift (supra) it was held that a court ought not to stay an action unless, either the action before the court was demurrable in the old days or the action is of such a character that there is a plain reason why it must fail. The applicant in his application in the lower Court urged the Court to hold that the civil action was incompetent. In effect he was saying that the action was demurrable. Therefore in the light of the ratio in Shackleton V. Swift there is basis for granting a stay.

 

(iii)    The Court of Appeal erred in law and on the facts in giving consideration to the documents which purport to form part of the proceedings before Agoro. J., when those proceedings were not exhibited to the affidavit in support of the application before the Court of Appeal.

 

(iv)    In the alternative to (i) the Court of Appeal erred in law in treating the mandamus proceedings before Agoro. J., as criminal proceedings when

(a)    there is clear authority of this court that such proceedings must be regarded and treated as civil proceedings and

(b)     in his own alternative prayer before Ilori. J., the Applicant made reference to "the final determination of Suit No.M/87/88 (i.e. mandamus proceedings).... and any criminal proceeding that may be commenced thereupon..."

 

(v)     In the further alternative to (i) the Court of Appeal erred in law in failing to observe that on the facts of this case, and having regard to the provisions of Section 342 of the Criminal Procedure Law, it is impossible for the Defendant to obtain the order he is asking for. In other words the application for mandamus is ex facie frivolous and unsustainable in the light of Section 340 and related provisions of the Criminal Procedure Law.

 

(vi)    Even if it was permissible for the Court below to consider the proceedings before Agoro. J, in coming to a decision on the appeal before it, the fact that those proceedings were stayed pending appeal by the present Appellant is not a valid ground either in law or in logic for granting a stay of proceedings herein. The correct grounds for granting a stay have been repeatedly laid down in some of the cases referred to in the judgment of the Court below now under appeal.

 

(vii)   The Court below misdirected itself in law and on the facts in assuming that if the trial of the libel action in this case were to proceed it would prejudice the "prosecutor" of the charge of murder and conspiracy to commit murder by the defendant against the plaintiff.

 

(viii) The Court below misdirected itself in law in assuming or holding that the institution by the Plaintiff of his action for damages for libel raised the same cause of action or matter as that raised by the defendant in the proceedings before Agoro. J.

 

(ix)     The Court below erred in law and on the facts in failing to take any account whatsoever of the fact that

(a)    Longe. J., had dismissed an attempt to prosecute the Plaintiff and another as an abuse of  the process of the court and

(b)    it was the case of the Plaintiff that the proceedings before Agoro. J., was frivolous, vexatious and an abuse of process.

 

(x)     The Court below erred in law in granting the order for stay in the absence of facts or circumstances which justify the making of the order and when they did not make any examination of the reasons given by the High Court for making the order which it  made in the judicious exercise of its discretion.

 

(xi)     In granting the order for stay the Court below exercised its discretion wrongly and/or failed to exercise the same judicially.

 

I think it will be convenient for my consideration of the arguments of counsel in this appeal to group the grounds of appeal under the headings to which they properly belong. For instance, grounds i, ii, vii, viii, x, xi complain about errors in the exercise of discretion to stay proceedings, whereas, grounds iii, iv, v, vi, relate to errors in considering Suit No. M/87/88 the Mandamus proceedings. Ground ix stands alone. Like the grounds of appeal, the questions for determination compete with it in terms of prolixity. Eight issues have been formulated. They are reproduced below as follows -

 

(i)      Whether, on the application for stay of proceedings pending the hearing and determination of the appeal, it was competent for the Court of Appeal to have determined in favour of the defendant one of the alternative remedies which the said defendant unsuccessfully sought for in the High Court before Ilori. J., and which remedy he is now also seeking in his Notice of Appeal herein dated 7/5/88.

 

(ii)     If the answer to Question (i) is in the negative, what is the effect of that answer on

(a)     the decision of the Court of Appeal and

(b)     the propriety of the same Panel of Justices having to deal with the hearing of the substantive appeal herein.

 

(iii)     Should the Court of Appeal have given consideration to the mandamus proceeding before Agoro. J., in dealing with the Plaintiff's application for stay of proceedings pending the hearing and determination of the appeal?

 

(iv)    If the answer to Question (iii) is in the affirmative, whether the fact that the mandamus proceeding before Agoro. J., was stayed pending an appeal provides any justification or relevant ground for granting a stay in the defendant's appeal from the order of Ilori. J., from which appeals are now pending in the Court of Appeal.

 

(v)    Is the mandamus proceeding before Agoro. J., a criminal proceeding?

 

(vi)    Should the Court of Appeal have paid regard to the fact that a mandamus proceeding was pending before Agoro. J., without examining the substantiality of that proceeding particularly in view of the contentions of the Plaintiff herein that the said proceeding was frivolous, vexatious and an abuse of process?

 

(vii)   Whether the Court of Appeal was correct in making the assumption that if the trial of the libel action in this case were to proceed before the criminal proceeding has "run itself out or run its full course" it would prejudice the defendant herein or the cause of justice.

 

(viii)  What guidelines should the Court of Appeal have followed in deciding whether or not to grant a stay of proceedings pending appeal in this case.

 

The Respondent, Chief Fawehinmi has observed in his brief and I agree with him that the questions for determination formulated by Counsel to the Appellant were neither based strictly on the grounds of appeal filed and without reference to the conclusions reached by the Court of Appeal for granting the stay of proceedings pending the determination of the appeal in the Court of Appeal. This court has stated it in many of its decisions that the question for determination must relate to the grounds of appeal filed and the judgment challenged - See Okonkwo V. Okolo (1988) 2 N.W.L.R. (Pt.79) 632; Olowosago V Adebanjo (1988) 4 N.W.L.R. (Pt.88) 275; Idika V. Erisi (1988) 2 N.W.L.R. (Pt.78) 563. For instance, there is no ground of appeal to answer the questions i & ii of the issues raised. The remaining questions iii - viii may conveniently be formulated into four questions as follows - namely iii, v, vii, viii:

 

(iii)     Should the Court of Appeal have given consideration to the mandamus proceeding before Agoro. J., in dealing with the Plain tiff's application for stay of proceedings pending the hearing and determination of the appeal?

 

(v)    Is the mandamus proceeding before Agoro. J., a criminal proceeding?

 

(vii)   Whether the Court of Appeal was correct in making the assumption that if the trial of the libel action in this case were to proceed before the criminal proceeding has "run itself out or run its full course" it would prejudice the defendant herein or the cause of justice?

 

(viii)  What guidelines should the Court of Appeal have followed in deciding whether or not to grant a stay of proceedings pending appeal in this case.

 

These issues adequately encompass the eleven grounds of appeal filed. The real issue before the Court of Appeal was why lIon J., should not have granted Respondent's application for stay of proceedings in Suit No. ID/312/ 88 whilst an appeal was pending in Suit No. M/87/88.

 

Respondent has formulated his four questions for determination as follows -

 

1.     Whether having regard to the facts of this case it is proper, just and equitable to stay further proceedings in the trial Court pending the final determination of the appeal lodged to the Court of Appeal by the Defendant against the Ruling of the trial Court dated 6th May, 1988.

 

2.     Whether the reasons or some of the reasons given by the Court of Appeal are valid in law to support the conclusion reached by the Court in its order staying further proceedings in the trial Court pending the determination of the Defendant's appeal.

 

3.     Whether the members of the Panel of the Court of Appeal that delivered the Ruling dated 15th September, 1988 are disqualified in law in adjudicating on the Defendant's appeal.

 

4.     Whether the arguments on page 9 paragraph 4 - page 21 paragraph 6 of the Appellant's Brief are relevant to this appeal.

 

I shall for the purposes of this judgment adopt my own formulation of the issues which I consider to have more appropriately identified the issues in the grounds of appeal filed. The issue whether the members of the Panel of the Court of Appeal that delivered the ruling dated 5th September, 1988, appealed against are disqualified in law in adjudicating on Defendant's appeal is not one of the grounds of appeal filed.

 

Arguments of Parties

 

Chief Williams, S.A.N. adopted the brief of argument and the reply brief filed on behalf of the Appellant. Chief Fawehinmi adopted his brief. Both in their arguments before us adopted their briefs of argument and expatiated on some areas they considered required elaboration.

 

Chief Williams, S. A N., in opening his argument started with the jurisdictional error he considered made by the Court of Appeal. He pointed out that although the application dismissed by Ilori J., which was on appeal before the court was (a) to strike out the libel suit on the ground that it is an abuse of process, or alternatively (b) to stay further proceedings in the said libel suit pending the final determination of the mandamus proceeding before Agoro J., and any criminal proceedings that may be commenced thereupon" against the plaintiff for conspiracy to murder and murder of Dele Giwa. But the question which their Lordships of the Court of Appeal asked themselves and which they answered was whether or not the libel action should stop until the mandamus proceeding and any criminal prosecution resulting therefrom is over. It was submitted that this latter question does not arise until the hearing of the pending appeal. There was no jurisdiction to dispose of an appeal pending on the hearing of a motion to stay proceedings pending the appeal. Learned senior Counsel cited and relied on Egbe v. Onogu (1972)1 ALL N.L.R. (Pt.1) 95,98,99 and Ojukwu v. Governor of Lagos State (1986)3 N.W.L.R. (Pt.26) 39 at p.45. Holman Bros. (Nig.) Ltd. v. Kigo (Nig.) Ltd. (1980) 5-7 S.C. 60.

 

Learned Senior Counsel Chief Rotimi Williams. S.A.N., then considered the validity of the conclusion of the Court of Appeal that the requirements of justice and fair play made it imperative to stay the civil proceedings until the criminal proceeding was over. He summarised the reasons adduced for this conclusion, that the Respondent first set in motion the criminal process to prosecute the Appellant for the offence of conspiracy to murder and murder of Dele Giwa, this is also in essence the substance of the mandamus proceedings and Plaintiffs civil action. It is highly undesirable and unethical to allow the civil action to commence while there is a stay of proceedings in the criminal proceeding. Where a citizen has evinced an intention to have another prosecuted for a felonious act, who subsequently institutes a civil action against the same citizen on the same or substantially the same cause of action, the civil action ought to be stayed pending the outcome of the criminal proceeding. It is perverse to argue that if the civil action is not stayed a decision in the pending appeal might not be rendered nugatory. It will be unjust and inequitable not to stay the civil proceedings.

 

Chief Williams then submitted that those reasons were based on the assumption that

(a) mandamus proceeding is a criminal proceeding

(b) failure to stay the civil action will prejudice the "criminal proceeding"

(c) there is a rule of law or practice which requires the civil action to be stayed, and

(d) the order for stay preserves the "res" in the appeal.

 

Learned Counsel then submitted that none of these assumptions is supported by decided cases. He cited the cases of Ojikutu V. African Continental Bank Ltd. (1968) 1 All N.L.R. 40, Jefferson Ltd. v. Bhetcha (1979) 1 W.L.R. 898, 904-905 in support of the view that there is no rule of law or practice which requires that proceedings in a civil action must be stayed until a contemporaneous criminal proceedings on the same matter or substantially the same matter had run their course.

 

Chief Williams referred to the guidelines and principle applicable and to the view of the court below that unless the civil proceeding was stayed a decision on the matter in the pending appeal might be rendered nugatory. He then referred to the consequential reliefs sought in the notice of appeal in suit No.1D/312/88 and submitted that it is a relief which the Court of Appeal can grant under its Order 3 rule 22.

 

He argued that the mandamus proceeding is frivolous and vexatious and cannot succeed. It was finally submitted relying on the test laid down by the Supreme Court in Kigo's and other cases that no stay pending appeal should be granted because there is no reasonable ground to suppose that if stay is refused, the appeal even if successful, would he rendered nugatory.

 

Chief Williams referred to Shackleton V. Swift (1913) 2 K.B. 309 relied upon by the Court of Appeal and submitted that the issue there was different from that in the instant case. The issue there was not in respect of stay pending appeal. The case of In re J.B. Palmer's Application (1883) 22 Ch.D.88 was cited in support of the law and practice applicable. It was submitted that the Court of Appeal was in error in thinking that there are rigid rules regulating concurrent civil and criminal proceedings on the same or substantially the same cause or matter.

 

Chief Fawehinmi in a very elaborate and detailed argument in his brief has sought to support the ruling of the Court of Appeal  mainly on grounds of equity and justice. He referred to the inherent jurisdiction of the Court to stay proceedings and the exercise by the Court of its equity jurisdiction. He relied on Kigo V. Holman (1980)5-7 S.C.60, National Insurance Corporation of Nigeria v. Power & Industrial Engineering Co.Ltd. (1986)1 N.W.L.R. (Pt. 14)1 at p.29. Citing and relying on Jadesimi V. Okotie-Eboh (1986)1 N.W.L.R. (Pt.16) 264 at 277, Chief Fawehinmi submitted that in the peculiar facts and circumstances of this case together with the conduct of the parties, consideration such as the conduct is of paramount importance. He then recited the events leading to the litigation tracing them the death of Dele Giwa. Chief Fawehinmi then submitted that equity, good conscience and fair play dictated that Respondent's appeal be concluded before the trial of Appellant's action begins. He imported the concept of what a reasonable man following the trend in these cases will think. 

 

Chief Fawehinmi referred to the general principles applicable to applications for grant of an order for stay of proceedings pending appeal as enunciated in Kigo V Holman (supra). He submitted that the instant appeal fell squarely within the conditions laid down in Kigo's case. He submitted that the grounds of appeal are substantial, the success of the appeal will be rendered nugatory if the stay was refused and the facts justify the order - Governor of Lagos State V. Ojukwu (1986)1 N.W.L.R. (Pt.18) 621,644-5. The possible consequences of failure to grant a stay of proceedings were forcefully pointed out. It was pointed out that Appellant will thereupon enjoy an advantage in the criminal prosecution likely to be commenced in the event of the appeal succeeding. Chief Fawehinmi summarised the ruling of the Court below thus -

 

1      The defendant's grounds of appeal raise substantial issues of law.

 

2      The facts of this case justify the grant of a stay of proceedings in the High Court pending the determination of the Defendant's appeal.

 

3.     The libel action ought not to be allowed to take off before the criminal proceedings in M/87/88.

 

4.     That the success of the Defendant's appeal will be rendered nugatory if the Plaintiff's action is not stayed.

 

5.     That equity, fairplay and good conscience dictate that the Plaintiff's action be stayed pending the outcome of the Defendant's appeal.

 

Chief Fawehinmi contended that even if the order of the Court of Appeal extended to matters, which ought to be decided in the substantive appeal, that by itself was not sufficient to set aside the order and allow the appeal. It was submitted that considerations of justice dictate that the erroneous reasons be severed from the valid reasons, and that if there were substantial reasons in the judgment supporting the concluding order, the judgment ought to stand. He cited and relied on Balewa V. Doherty (1963) 1 W.L.R. 949, 96o Adeyemi V. A.G. of Oyo State (1984) 1 S.C.N.L.R. 525, Exparte Whybrow & Co. & Ors. (1910-11) 11 C.L.R. 1 at 34-35. If this rule is applied to the reasoning in this appeal, the judgment will stand.

 

Chief Fawehinmi referred to the question of contemporaneous civil and criminal proceedings, and submitted that this Court has no jurisdiction to pronounce on the issue. He argued that the order of the Court of Appeal was to stay further proceedings in the libel action pending the final determination of the Defendant's appeal not pending the outcome of Suit No. M/87/88 or any criminal proceedings founded thereon. He contends that the out come of Suit No. M/87/88 or any criminal proceeding founded thereon is still to be decided by the Court of Appeal in the main appeal.

 

Chief Fawehinmi submitted that the criticism of the Court of Appeal's reliance on Shackleton V. Swift (supra) is unjustified. He argued that the Court of Appeal did not wholly rely on that case. The Court of Appeal he submitted relied substantially on equity, fairplay and good conscience in granting the application for stay of proceedings pending appeal. I do not think that Chief William's criticism was unjustified. Apart from the fact the Shackleton V. Swift (supra) dealt with a completely different legal situation, and none of the conditions stated by Vaughan Williams. L.J. in his judgment exists in this case.

 

Consideration of the Arguments

 

The submissions of the parties above reproduced have been limited to grounds i, ii, vii, ix, x, xi of the grounds of appeal and issues iii, v, vii, viii as formulated by the counsel for the Appellants. I shall after considering this deal with the other part of the ruling. It seems to me that very little attention has been paid to the peculiarity of the facts of the case in its application to the principles applied in determining applications for stay of proceedings. The novelty of the case was however pointed out in the judgment of Babalakin J.C.A. in the Court below.

 

Applicable Principles

 

I consider it important for what I shall say later to state, even if in outline, the general principles applicable to the exercise of discretion to stay proceedings. Whilst I agree that a stay of proceedings falls within the inherent jurisdiction of the Courts, and is determined generally by the exercise of discretion, the practice of the Courts has built around the exercise of discretion certain principles which the Courts will not lightly depart from except where the party invoking the exercise of the discretion, of the Court has established clear and compelling reasons in support of a departure.

 

The exercise of this inherent power to stay proceedings which is derived from section 6(6) of the Constitution 1979 and rules of Court, may be invoked where there is an abuse of the process, such as frivolous, vexatious or harassing proceedings or where the plaintiff whose case is sought to be stayed has no cause of action. See Metropolitan Bank V. Pooley (1884) 10 A.C. 210. The general practice is that unless an applicant has established beyond doubt that the action ought not go on, it should not be stayed - See Okorodudu v. Okoromadu(1977)3 S.C. 21, Shackleton v. Swift (1913)2 KB. at p.312. It is essential for applicant for a stay of proceedings to establish not that the plaintiff might not succeed, but that he could not possibly succeed - See Goodson V. Grierson (1908) 1 K.B. 761. The following circumstances give rise for applications for stay of proceedings.

 

1.     The usual cases of applications for stay of proceedings arise where a party who has appealed against an interlocutory ruling seeks a stay of proceedings in the matter before the court, pending the outcome of the appeal on the interlocutory decision - See Kigo (Nig.) Ltd. V. Holman Bras. (Nig.) Ltd. (1980) 5-7 S.C. 60 at 61, Jadesimi V. Okotie-Eboh (1986)1 N.W.L.R. (Pt.16) 264, In re G.M. Boyo (1970)1 All N.L.R. 111.

 

2.     The application is also made after final judgment, when the defendant or plaintiff against whom judgment was given having appealed against the judgment seeks to stay proceedings in respect of execution pending the determination of the appeal. This second category is generally referred to as a stay of execution, or injunction or stay of proceedings. The effect is generally the same, namely to suspend any proceedings in relation to the matter – See Sodeinde V. Trustees of Ahmaddiyya Movement-In-Islam (1980) 1-2 S.C. 163, Okafor V. Nnaife (1987) 4 N.W.L.R. (Pt.64) 129.

 

3.     There are the other cases, where a Plaintiff after commencing an action against the defendant and during its pendency proceeds to initiate another action against the same defendant whether in this country or abroad, in respect of the same or substantially similar subject-matter. The defendant is entitled in such a circumstance to apply for a stay of proceedings in the latter action. See Okorodudu V. Okoromadu (1977) 3 S.C. 21. The Royal Bank of Scotland V. Citrusdal In vestments Ltd. (1971) 3 ALL E.R. 558.

 

4.     The application for stay of proceedings also lies where a defendant to an action after the commencement of proceedings brings action against the plaintiff in respect of the same or substantially similar subject matter. See Thomson v. South Eastern Railway Co. (1881-2) 9 Q.B.D. 320.

 

Thus in summary the application for stay of proceedings may be brought where there is an interlocutory appeal or final judgment in an action between parties. It may also be brought where there is a concurrent action between parties in respect of the same or substantially the same subject matter. Application may also be brought in cross actions between the same parties in an action in respect of the same or substantially similar subject-matter. In all the cases the rationale is that the action ought, in the interest of justice, to be stayed to enable the preservation of the res, the subject-matter of dispute. This discretion exists and may be exercised whether the res is tangible or intangible - See Kigo Nigeria Ltd. V. Holman Bros (Nigeria) Ltd. (1980) 5-7 S.C.60 at p.73.

 

The principles governing the exercise of discretion in applications for stay of proceedings where there is an appeal pending in that proceeding has been clearly enunciated in Shodeinde V. Trustees of Ahmaddiyya MovementIn-Islam (1980)1-2 S.C. 163. Kigo (Nig.) Ltd. v. Ho/man Bros. (Nig.) Ltd. (1980) 5-7 S.C. 60 is different in that that was an application to stay further proceedings in the High Court pending the determination of appeal to the Supreme Court of Appeal against the decision of the Court of Appeal.

 

More recently in Okafor V. Nnaife (1987) 4 N.W.L.R. (Pt.64) 129 where some of the earlier cases were reviewed, it was restated that this Court and all other Courts have an unimpeded discretion to grant or refuse a stay of proceedings or of execution in proceedings before them. But the discretion ought to be exercised both judicially as well as judiciously. and not erratically. The exercise of the discretion must take into account the competing rights of the parties to justice. Since in the case of a final judgment the successful party is entitled to the fruits of his victory, the applicant for a stay must show special or exceptional circumstances why the successful party should be deprived the fruits of his victory, even if temporarily and the proceedings should be stayed. Such circumstances to entitle applicant to the grant of a stay will depend on the facts of each case. But collateral circumstance which may unless the proceedings is stayed result in the destruction of the res and consequently rendering a successful appeal nugatory has always been regarded as such "special" or "exceptional" circumstance. Hence on the whole the onus is on the applicant for a stay of further proceedings pending appeal to show that in the circumstances of his case it would be unjust and inequitable to refuse his application - See Vaswani Trading Co.Ltd. v. Savalakh & Co. (1972)12 S.C. 77, Utilgas Nigerian & Overseas Gas Co. Ltd. v. Pan African Bank (1974)1 All N .L.R. (Pt. 11) 47. Obeya Memorial Specialist Hospital & anor. V. A. -G of the Federation & 1 or. (1987) 3 N.W.L.R. (Pt.60) 325. Government of Lagos State V. Ojukwu (1986)1 N.W.L.R. (Pt.18) 621 Jadesimi V. Okotie-Eboh (1986) 1 N.W.L.R. (Pt. 16)264;N.B.N. V. N.E. T. (1986)3N.W.L.R. (Pt.31)667.

 

In addition, it seems to me that considerations of any bona fide substantial advantage to the plaintiff, and any serious substantial disadvantage to the defendant, such as whether the continuance of the action would be vexatious or oppressive to him or constitute an abuse of the process of the Court is to be taken into account in determining whether proceedings ought to be stayed. - See Akhiwu V. Principal Lotteries Officer (1969)1 ALL N.L.R.426.

 

Apart from Kigo (Nigeria) Ltd. V. Holman Bros. (Nig.) Ltd. (supra) where the application to stay proceedings was brought by a third party seeking to join as a party, the cases referred to above are clearly different from the appeal before us. In each case applications have been brought by a party to stay proceedings because of an appeal pending in that proceeding. Hence, although the general principle for the exercise of discretion for the preservation of the res, are applicable, other considerations also apply to enable the exercise of discretion.

 

I have already analysed in this judgment the type of application to stay proceedings. The facts of this appeal bring it within the third category where there are cross actions between parties to litigation. As I have already pointed out whether the application for stay of proceedings was brought in respect of concurrent or cross-action, the important consideration is that the parties in the two actions must be the same and the subject-matter in the action sought to be stayed, must be either the same or substantially similar to that of the action already pending between the parties.

 

In all these cases, the application for stay must establish, firstly, that there is duplication between two sets of proceedings between the parties. Secondly, absence of any other consideration against the relief sought, such as unreasonable delay or acquiescence, and thirdly, oppression, vexation, or abuse of the process of the Court resulting from the continuation of the proceedings sought to be stayed – See Maharanee of Baroda V. Wildenstein (1972) 2 All E.R. 689. Thomson V. South East Railway Co. (1882)9 Q.B.D. 320. Slough Estates Ltd. V. Slough Borough Council (1969) 2 All E.R. 988 Thames Launches Ltd. V. Corporation of Trinity House of Deptford Strond (1961)1 All E.R. 26. Royal Bank of Scotland Ltd. V. Citrusdal In vestments Ltd. (1971) 3 All E.R. 558.

 

It is conceded that in cross actions there is no hard and fast rule that the action last commenced is the one to be stayed. The reasons for seeking a stay of proceedings being the protection of the res in the action from which an appeal is pending, the determination of the appeal must therefore be relevant and govern the preservation of the res in the action sought to be stayed. This was the position in Thames Launches Ltd. V. Corporation of the Trinity House of Deptford Strond (1961)1 All E.R. 26. Here, the Plaintiff Company apprehensive of a Pilotage law and doubtful of the true construction of sections 11 and 43 of the Pilotage Act. 1913 whether they could navigate their passenger-carrying vessels throughout those parts of London within the London Pilotage District on pleasure tours without having on board either a licensed pilot or a master or mate with a pilot's certificate. They applied by originating summons dated April 13, 1960 to determine the correct interpretation of the sections. The Trinity House were the defendants to the originating summons. On Oct. 21 1960, the defendants issued two summonses on information against an employee of the Plaintiff Company, alleging that on May 11, 1960 he had as Master of one of Plaintiffs vessels committed offences under sections 11 and 43 of the Pilotage Act 1913. Plaintiff applied by motion to restrain the defendants from proceeding with the summons until the question raised in the originating summons had been determined. The injunction was granted and the defendants were restrained accordingly. There is no doubt that in the Thames Launches case, the interpretation of sections 11 and 43 of the Pilotage Act, 1913 was fundamental to the liability under the summons subsequently issued. 

 

The same view was adopted in Slough Estates v. Slough Borough Council (1969) 2 All E.R. 988 even though the two institutions were a Court and an appeal to the Minister. In this case no order for stay was made because of an undertaking by plaintiffs to pay the costs of the proceedings and the withdrawal of the s.23 proceedings before the Minister. The basis for the exercise of the discretion to grant a stay depends upon whether it was satisfied that it would be vexatious to let the second action proceed. In re G.M. Boyo (1970)1 All N.L.R. 111, the validity of the trial for contempt, depended on the competence of the Court to try the appellant the proceedings was stayed pending determination of the appeal against the competence of the Court. In Okorodudu v. Okoromadu (1977) 3 S.C.2 I. this Court granted a stay of proceedings and ordered that Suit No. W/117/73 shall remain so stayed until Suit No. W/8/73 has been determined. The facts are simple. Plaintiffs observing that suit No. W/ E 8/73 "was not properly constituted" made several efforts to amend their pleadings but the learned Judge had refused to grant their application. They then instituted Suit No. W/117/73 in which the errors in W/8/73 were corrected whilst that suit was still pending. This Court considered the conduct of the plaintiffs as a flagrant abuse of judicial process of the Court.

 

Application of the principles to the facts of this case

 

Now, applying the principles to the case before us, it is important to bear in mind the grounds relied upon by the Defendant in his application for stay of proceedings and the reasons of the Court of Appeal for granting the stay of proceedings. I have already outlined the principles followed by the courts in the exercise of the discretion. The fundamental basis being the preservation of the res, it is essential that the subject-matter for determination in the pending appeal should either be the same or so substantially similar that the determination of the appeal will resolve the issue in the action being stayed.

 

The Court of Appeal acted under the impression that the substance of the action in M/87/88 which is on appeal. and in the civil action being stayed is the death of Dele Giwa. Akpata J.C.A. in the lead judgment stated it thus

The applicant is alleging rightly or wrongly, in the criminal proceedings, that the respondent was involved in the murder of Dele Giwa. The respondent is saying in effect in his action that he was in no way involved in the brutal and murderous act and that he had been defamed by the applicant.

 

These conclusions have been criticised by Chief Williams, S.A.N., as based on erroneous assumptions. I agree. There is no doubt that a mandamus proceedings is not a criminal proceeding - See Obadara v. Grade B, Customary Court (1964) 1 All N.L.R.. 336, Okafor V. Nnaife (1967) 4 NW. L. R. (Pt.64) 129. Besides, the suit No. ID/312/88 which is founded on a libel resulting from the publication of the information alleging that appellant committed the offences therein, is clearly' not based on the death of Dele Giwa, but on the fact of the publication of the information itself. There is therefore neither identity nor substantial similarity of subject-matter in the two actions to render the decision of the action in the one dependent upon the other. Chief Fawehinmi, cannot therefore be right when he submitted before us that there was only one and the same cause of action both in the mandamus application and in respect of the civil action or libel. It may be conceded that the fons et origo of the various causes of action is the death of Dele Giwa. But this is a completely different thing from saying that a libel arising from publication of an information alleging conspiracy to murder and murder of Dele Giwa also has the death of Dele Giwa as its cause of action.

 

Cause of action has been held to mean every fact which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equitv. See Bello v. A-G. Oyo State (1986) 5 N.W.L.R. (Pt.45) 828 Letang v. Cooper (1965)1 Q.B. 232 at p.242. It cannot be seriously contended that the death of Dele Giwa is a necessary ingredient in Appellant’s proof of publication of the libel complained of .The foundation of the appellant’s action is the publication and distribution of the information alleging commission of criminal offences by the appellant. It is not the information per se. There would have been no cause of action if the information had been published to the Attorney-General in the ordinary course of duty - See Chotterton v. Sccretary of State for India in Council (1893) 2 Q.B. 189. The most that can be conceded is that both acts relate to the same event. It is not strictly accurate to say that they relate to the same subject-matter or transaction. - See Hardy 1v. Elphick (1973) 2 All E.R. 914 at p.917.1 have not been persuaded that there is an identity of causes of action in the two cases.

 

It is of crucial relevance to observe that the Court of Appeal was not unaware of the fact that no information had been filed pursuant to suit No. M/ 87/88. The Defendant was still at the stage of seeking leave of the court to ask for an order of mandamus to compel the Attorney General to do so or endorse the necessary certificate of refusal. It is these steps, which the Court of Appeal in its novel proposition of law referred to as having "crystallised criminal proceeding which takes precedence over and above a subsequent civil action based on the same or substantially the same subject-matter"

 

The Court went on to complete the formulation of this new proposition of law when it declared with unusual temerity as follows -

1 hold the view that where a citizen has evinced an intention to have another prosecuted for a felonious act by proceeding under section 342 and that another subsequently institutes a civil action against the citizen on the same or substantially the same cause of action, the civil action should be stayed pending the outcome of the criminal proceedings.

 

This proposition appears to me not only hypothetical but too widely stated and unrelated to the facts of the case before the court. The question of a civil proceeding crystallising into a criminal proceeding is not only novel but foreign to our jurisprudence and administration of justice. It is true that where a mandamus proceeding succeeds the repository of the statutory duty may initiate criminal proceedings. This is not the mandamus proceedings itself crystallising into a criminal proceeding. The Court of Appeal was aware that Respondent had not reached the stage of filing the information against the appellant, and cannot at the date when appellant filed suit No. ID/312/88 say that a criminal proceeding was pending. The evincing of an intention to prosecute another even if accompanied by steps towards that goal ought not deprive the person threatened of the exercise of his constitutional right to protect his name by action in court. I think it is a question of a vested right of action in the publication of the libel, and a right in fieri in the hope that a right to prosecute would in future vest in the publisher of the libel. I think Chief Williams was perfectly right in his submission that there is no rule of  law or practice which requires a subsequent civil action from being stayed because of an earlier effort to bring criminal prosecution, which is still in the pipeline. The exercise of discretion has been based on the same considerations except where the facts of the particular case justify a departure in the interest of justice. In the appeal before us, there was no criminal prosecution pending at the time the Suit No. ID/312/88 was filed. What was pending was the appeal in M/87/88 against the Order of Agoro J., by the Appellant. Agoro J., had granted leave to the Respondent to apply for an order of mandamus against the Attorney-General of Lagos State to exercise her discretion whether or not to prosecute appellant and if she declined, to endorse a certificate to that effect on the information. The Suit No. ID/312/88 was stayed pending the determination of the appeal in M/87/88. It seems to me that if the appeal in Suit No. M/87/88 granting leave to apply for an order for mandamus to issue compelling the Attorney-General to exercise her discretion to prosecute is decided in favour of the Respondent, the Attorney-General will then endorse the information with her certificate of refusal to prosecute unless of course she will then decide a second time to prosecute having before filed an information which was quashed on grounds of insufficiency of evidence. If the appeal is allowed, then the application is dismissed and parties return to the status quo ante. Chief Fawehinmi has contended that if the appeal in Suit No. M/87/88 succeeds, the effect will be an order to strike out Suit No. ID1312/88 or to stay further proceedings in the suit pending the determination of the appeal in Suit No. M/87/88 and any criminal proceeding that may be commenced thereupon against appellant. Thus, both actions are concurrent and towards achieving same objective of the prosecution of the appellant for the murder of Dele Giwa.

 

The question which ought to be answered by the applicant for the stay of proceedings is whether on the facts there is a cross-action between the parties on which considerations of the stay of proceedings can be founded. I have already held that there is no cross-action because the Mandamus proceedings is not an action between the Respondent and the Appellant. This is notwithstanding that Appellant applied to be made a party so as to challenge the order made as a person interested. There was no claim against appellant in that proceeding.

 

Chief Gani Fawehinmi has submitted that the effect of refusing the stay proceedings violates his rights as a private prosecutor under section 342 of the Criminal Procedure Law, Cap.32 of Lagos State, and also violates section 36 and a derogation of section 21 of the Constitution 1979. I am in complete agreement with the submission of Chief Williams here, that Chief Gani Fawehinmi cannot fall within the meaning of the word "any person" in the provisions of section 340(1) of the Criminal Procedure Law, Cap 32 for the prosecution of offences under Part 31 except for the offence of perjury. This is because section 340(2) as amended by the Criminal Procedure (Amendment-Edict No. 7 of 1987 reads as follows -

Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless the in formation is preferred pursuant to an order made under Part 31 to prosecute the person charged for perjury.

 

Since the general provision in section 340(l) is subject to the specific provision in section 340(2), it follows that other offences other than perjury must be initiated in accordance with the procedure prescribed under the Criminal Procedure Law. Hence, the information within the meaning of Section 342 relied upon by Chief Gani Fawehinmi for the exercise of his right must be limited to the offence of perjury. The right of a private prosecutor to initiate prosecution in all other offences has been withdrawn by the amendment to section 340(2) of the Criminal Procedure Law, Cap.32. Vol. 11. laws of Lagos State, 1973, by the Administration of Justice (Miscellaneous Provisions) Law No.4 of 1979 and the Criminal Procedure (Amendment) Edict No.7 of 1987. A private prosecutor can now only initiate prosecution for the offence of perjury.

 

The above analysis answers the question whether there has been any violation of the defendant's right to initiate prosecution. Since there is no right to prosecute for the offences of murder or conspiracy to murder, no right of the Respondent has been or can be violated.

 

The instant case is distinguishable from In re G.M. Boyo (1970)1 All 6 N. .LR. 111 relied upon by Chief Fawehinmi. It is also different from Adigun V. A.-G of Oyo State (1987)1 N.W.L.R. (Pt.53) 678 where the issues involved were incompetence of the court and right of fair-hearing. No such issues are involved in this case. The competence of the court is not in doubt and there is no complaint that Respondent did not have fair hearing.

 

I think it goes without saying that a Plaintiff whose statement of claim discloses a cause of action should be allowed to have his case tried, unless it can be shown that his conduct in bringing the action is clearly, frivolous, vexatious or otherwise an abuse of the process of the court. It has not been argued and cannot seriously be said of Suit No. ID/312/88 that it discloses no cause of action. The Court of Appeal in its judgment stated that it did not consider the action vexatious, and indeed that was not the issue. This Court will regard as vexatious an action brought by a defendant against the Plaintiff in respect of the same subject-matter in the same action in which he is the defendant.

 

The appeal before us is not such an action. It seems to me, like Chief Gani Fawehinmi before us, that the Court of Appeal appears to have laid considerable emphasis on the question of the parity of treatment between the parties before the Court. Chief Fawehinmi submitted that in Suit No. M/ 87/88 Appellants were granted a stay. of proceedings by Agoro J., pending determination of their appeal in that action. It was submitted that on grounds of equity, good conscience and fair play Appellant's action in Suit No. ID/312/88 should be stayed pending determination of Respondent's appeal. It was said that the consequence of the appeal will be that Appellant's case will either be struck out or abide the result of the criminal proceedings.

 

It is clear from the arguments presented by the Respondent that no case had been made out in support of the striking out of Appellant's claim. It has not been shown that Appellant's writ of summons and statement of claim are incurably defective in any respect and that they did not disclose any cause of action. It has also not been shown that as a consequence the claim of Appellant cannot in any event succeed - See Foko V. Foko (1968) N.M.L.R. 441, Fashanu V Governor, Western Region & Anor. (1955-56) W.R.N.L.R. 138. I do not think there is any basis for striking out the claim of the Appellant in Suit No. ID/312/88.

 

I have already observed in this judgment that the Court of Appeal has found that appellant's action is not vexatious. There is therefore concurrent findings on this issue in the Courts below. No reasons have been adduced why this court should interfere with that finding. For the two reasons at least, the Suit No. ID/312/88 will remain.

 

Chief Gani Fawehinmi has placed considerable emphasis on reliance on principles of equity, good conscience and fair play why the Suit No. 1D/312/ 88 should be stayed. I have not been persuaded that, that alone is a safe ground for granting a stay in the circumstances of this case. Equity follows the law and is applied to ameliorate the rigidity and inflexibility of the common law. The Defendant has not succeeded in establishing his legal right to bring the criminal prosecution against the Appellant. It is therefore not yet ripe to invoke the assistance of equity.

 

In my opinion which has been formed after considering several binding and persuasive judicial decisions, the Court of Appeal erred considerably in relying entirely on "so-called" equitable grounds alone in determining an issue which is founded on the exercise of a legal right and is replete with decisions on the exercise of judicial discretion. A stay of proceedings may in appropriate cases be granted to avoid unnecessary expense - See Metropolitan Bank Ltd. V. Pooley (1884)10 A.C. 210. A stay is not usually granted to a party who has not established a right of action and who cannot after all said and done establish any prima facie claim in law.

 

The Court of Appeal in its ruling observed as follows -

In my view, to allow the civil action of the respondent to proceed in the circumstances of this case will be most unjust and in-equitable. It would be a dangerous precedent which I think will offend not only minds learned in the law but also the minds of honest and right thinking laymen. It would amount to the court granting a standing invitation to any one accused, rightly or wrongly, of a crime to opt for a civil action against his accuser, while at his behest, the criminal proceeding initiated against him is stayed. It is not right. It is odd.

 

The conclusion is replete with many false assumptions not supported by the facts of the case. There was no criminal prosecution against the appellant and no legal impediment to the exercise of a right of action if appellant is injured in the process. I do not think the provisions of the law are formulated to facilitate serious accusations of criminal offences against fellow citizens in court made recklessly, careless whether the allegations are true or false. The liberty to make any accusations is circumscribed both by the right to make it, the duty not to injure another by the accusations and the right of any person wrongly accused and injured thereby to seek appropriate redress in the courts. The courts have been established to protect both rights where validly exercised. They are not established to protect the citizen who falsely even if erroneously, believes in the exercise of a right.

 

Parity of treatment in the administration of justice demands the maintenance of a complete balance in the scale of justice. I do not think that even on grounds of equity it is either wrong or odd to stay criminal proceedings where a prosecutor is exercising a right which is challenged. Unless and until the right to prosecute is established, and the subject matter of the prosecution is shown to be the same or substantially similar to that of the subsequent civil proceedings, the Plaintiff is entitled to continue with the exercise of his right to protect any injury done to him.

 

The consideration for staying proceedings in Suit No. M/87/88 is that the right of the prosecutor to prosecute was being challenged and I think it was right in the circumstances to stay the proceedings - See In re G.M. Boyo (supra).

 

I now turn to the remaining grounds of appeal, iii, iv, v, vi, which pertain to the Mandamus proceedings and the use made of the Court of Appeal of the Suit No. M/87/88. The Mandamus proceedings was brought by the Respondent in this appeal, seeking "an Order of Mandamus compelling the Attorney-General of Lagos State to exercise her discretion whether or not to prosecute Lt. Col. A.K. Togun and Col. HaIilu Akilu for conspiracy to murder and murder of Mr. Dele Giwa and if she declines to prosecute, to endorse a certificate to that effect on the information submitted to her by the Applicant on Wednesday the 24th February, 1988 pursuant to section 342(A) of the Criminal Procedure Law Cap. 32 of Lagos State 1973".

 

Chief Williams has both in his brief of argument and oral elaboration of same before us pointed out and I agree that the Court of Appeal erroneously throughout the judgment regarded mandamus proceedings as criminal proceedings even though Chief Fawehinmi correctly recognised it as civil. This court has in Obadara V. Grade B Customary Court (1964)1 All N.L.R. 336 and Fawehinmi v. Akilu (1987) 4 N.W.L.R. (Pt.67) 797 clearly stated that Mandamus proceedings including applications for leave to issue, are civil proceedings. There is nothing both in its nature and procedure to give mandamus proceedings the character of a criminal proceeding.

 

It is not disputed that the purpose of a mandamus proceedings is to compel a public officer vested with a statutory right to discharge a duty to exercise such right in the public interest. For the Order to issue, the applicant must establish the existence of a statutory duty and not merely a discretion in the proposed recipient of the order.

 

Chief Williams also pointed out that when the case of Fawehinmi v. Akilu (1987) 4 N.W.L.R. (Pt.67) 797 was decided, the attention of none of the Courts from the High Court to the Supreme Court was directed to the fundamental change in the law governing the right of a private prosecutor to file information. He submitted that the effect of the amendments to the Criminal Procedure Law, Cap.32 of Lagos State by the Criminal Procedure (Amendment) Edict No.1 of 1979; Administration of justice (Miscellaneous C Provisions) Edict No.7 of 1987 is to exclude the right of a private prosecutor to bring information except in offences of perjury. With respect to the observation of Chief Williams that the alteration in the law was not brought to the attention of the Court in Fawehinmi .. Akilu (1987)4 N.W.L. R. (Pt.67) 797, the correct position is that section 340(2) on which Chief Fawehinmi relied was amended by Edict No.7 of 1987 which came into force on 14th July, 1987. The ex parte motion was filed in the High Court, on 7th November, 1986. and the Supreme Court delivered its judgment on 14th December, 1987. The right to bring the application was at the time the action was filed not affected. It was, therefore, not a defect in the application. I have already dealt with this fundamental alteration in the law, and have come to the conclusion that in consequence of the amendments to the Criminal Procedure Law, the Respondent cannot have endorsed on the information a certificate indicating the Attorney-General's refusal to prosecute. Where the discretion to prosecute has been exercised there the matter ends in all cases except prosecutions for perjury. This was the legal position when Respondent made his application for mandamus; the Criminal Procedure (Amendment) F Edict No.7 of 1987 having come into force on the 14th July. 1987. The application was made on 29th Feb., 1988.

 

This brings us to the decision of the Court of Appeal staying proceedings in Suit No. ID/312/88, until the determination of the appeal in the Mandamus proceedings which the court regarded as a criminal proceeding, has "run its course". In his submission, Chief Williams has argued that the validity of the proceedings must be genuine and not merely vexatious and an abuse of the court's process. Where the right to bring the proceeding is hopelessly defective, it will be "'carrying the application of the principle beyond the requirements of justice and fairplay to insist that the proceeding in a civil cause must be stayed because of it."

 

Chief Williams also referred to the vexed issue of deciding whether or not a proceeding not before the court and yet to be decided is or is not frivolous. Both parties are ad idem in the general rule that the Suit No. M/87/88 is not now appropriate for discussion since the contrary view will result in giving the applicant for an interlocutory order the exact or entire relief he is claiming in the substantive action. I entirely agree that is the general rule. But Chief Williams relying on Manchester Corporation V. Connolly (1970)1 Ch.420, submitted that where the defence to an action is a sham or plainly unsustainable, it was permissible to dismiss the action in limine on an interlocutory application.

 

Chief Fawehinmi has submitted that it is premature and academic at this stage to make pronouncements on appeals pending before the court.

 

I think the contention that there should be no discussion on Suit No. M/ 87/88 because there is an appeal pending ignores the fact that the stay of proceedings in the libel action in suit No. ID/312/88 is predicated on the existence of a right of action to sustain suit No. M/87/88 the Mandamus proceedings. Again, it is the basis on which the Court of Appeal held that the mandamus proceeding is a "Criminal proceeding" which ought to take precedence over the civil action. In considering whether the Court of Appeal was right in its decision it is necessary to determine the basis and rationale of the reasoning which has led to the conclusion. If the reasoning suffers from a fundamental defect which renders the conclusion erroneous this court is obliged in the exercise of its judicial duty in considering the correctness of the decision of the Court of Appeal to advert to the reasoning and to correct it in our pronouncement setting aside the decision. It is true that it is not permissible in an interlocutory decision to give what has been claimed in and is to be determined in the substantive case. That will be giving the litigant more than he has asked for - See Ochonma v. Unosi (1965) N.M.L.R. 321. But where the substantive claim in a pending action constitutes the basis of the claim in another action, the court is obliged to determine such claim where it is relevant to the determination of the other claim before it. It ought not shv away from deciding the point because it is the subject matter of appeal in another action. The distinguishing element is where the claim to be determined is in the same action, and cannot be determined before the whole case was heard. But where it is merely one of the issues to be determined in another action, I do not see the objection for deciding such issues.

 

In the appeal before us to set aside the judgment of the Court of Appeal staying proceedings in the Suit No. ID/312/88 the libel action because of a pending appeal in Suit No. M/87/88, the Mandamus proceedings, I think it is legitimate and proper to establish that the application for mandamus itself relied upon is not only hopelessly defective but also that it is vexatious, frivolous and an abuse of the process of the court and should not have formed the basis of the consideration of the Court of Appeal. In short it is a sham.

 

Chief Fawehinmi has submitted that some of the arguments of Appellant in this case were those put forward before the Court of Appeal in the brief in the appeal against the decision of Agoro I., in Suit No. M/87/88 with a view to having the opinion of this Court before the matter was actually argued before the Court of Appeal. I do not see what is objectionable if the arguments put forward are relevant to the determination of the appeal before us.

 

Chief Williams has invited us not to look at Vol. 2 of the Record of Appeal compiled by him because the Court of Appeal ought not to have relied on the materials in Volume 2 of the record of proceedings. I agree with Chief Fawehinmi that the Court of Appeal was right in referring to the record of appeal in determining the application for stay of proceedings. It is the general principle governing the exercise of discretion in applications to stay proceedings to rely on the circumstances surrounding the litigation by the parties. The conclusions I have reached in my judgment are that

 

(a)   The subject-matter of the action in the Suit No. M/87/88, the Mandamus proceedings, which is the application to compel the Attorney-General of Lagos State to exercise her discretion whether or not to prosecute the appellants for the offences of conspiracy to murder and the murder of Dele Giwa, is neither identical nor substantially similar to the subject-matter of the action in Suit No. ID/312/88, the libel proceedings against Chief Fawehinmi, which is an action for damages for libel contained in   the publication distributed to daily newspapers and magazines alleging that appellants had conspired to murder and murdered Dele Giwa. There is, therefore, no basis to stay proceedings in Suit No. ID/312/88 because an appeal in an interlocutory matter in Suit No. M/87/88 was pending. The two actions can co-exist, and be tried independent of each other.

 

(b)   Although the principles for the exercise of discretion in applications for stay of proceedings in actions before the court are not exhaustive, there are judicial decisions governing the exercise of discretion which it has always in the interest of justice, been invaluable to follow.

 

(c)   Since the Respondent has no legal right to institute proceedings to prosecute the appellants, the Mandamus proceedings ought not have constituted the basis for a determination whether the Suit No. ID/312/88 ought to be stayed. Even if there was a legal right to institute criminal proceedings, the issue of lack of identity of subject-matter in the two actions will preclude the granting of a stay of proceedings.

 

 All the grounds of appeal succeed.

 

I therefore will allow this appeal and set aside the judgment of the Court of Appeal. The ruling of Ilori J., dated 6th May, 1988 dismissing the application of Defendant/Respondent, seeking to strike out Suit No. ID/312/88 or in the alternative stay the proceedings therein till the Appeal in Suit No. M/87/ 88 was determined and any criminal proceedings consequent thereto for the prosecution of the Appellants for conspiracy to murder and murder of Dele Giwa, is hereby restored.

 

There will be no order as to costs.

 

 

Judgment delivered by

Bello. C.J.N.

 

I have had a preview of the reasons for judgment just delivered by my learned brother, Karibi-Whyte, J.S.C. He has painstakingly considered all the issues canvassed by the parties. I agree with his conclusions. I shall only add this short observation.

 

The law recognises the right of every person to the unimpaired possession of his reputation and good name. It also confers on him the right to institute and prosecute an action for defamation against any person who, by publication, has disparaged his reputation. The right to proceed with the prosecution of the action should not be impeded by stay of proceedings unless justice so requires. The onus is on the party who is seeking a stay to show that justice requires there should be a stay: Jadesimi V. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264 at 277. Where a criminal case between the same parties, which is connected with the civil action, is simultaneously pending with the civil action, the action may be stayed when there is a real danger of the causing of injustice in the criminal proceedings if the action is not stayed: Jefferson Ltd. V. Bhetcha (1 979) 1WLR 898 at 905.

 

As it appears in the lead ruling of Akpata J.C.A., the Court of Appeal thought the Respondent had instituted criminal proceeding against the Appellants herein, which was still pending in the High Court, and refusal of stay would cause injustice to the criminal case. The learned Justice of the Court of Appeal stated:

In my view, to allow the civil action of the respondent to proceed in the circumstances of this case will be most unjust and inequitable. It would be a dangerous legal precedent which I think will offend not only minds learned in the law but also the minds of honest and right thinking laymen. It would amount to the court granting a standing invitation to any one accused, rightly or wrongly, of a crime to opt for a civil action against his accuser, while at his behest, the criminal proceeding initiated against him is stayed. It is not right. It is odd. The criminal proceeding should be allowed to run itself out or run its full course before the civil action can justifiably be entertained.

 

It is clear from the above statement that the Court of Appeal presumed that the Respondent herein has not only the right to prosecute the Appellants for the alleged murder of Dele Giwa but also he had in fact initiated their prosecution. Although the Court of Appeal did not refer to Fawehinmi V. Akilu (1987)4 N.W.L.R. (Pt.67) 797, it seems the presumption made by the Court of Appeal was predicated on the decision of this Court in that case wherein it was held a private person had standing to prefer and prosecute before the High Court of Lagos State an information charging any person with an indictable offence. In that case at p.834 of the report. I stated:

It may be observed that in very clear terms sections 340 to 343 inclusive of the Criminal Procedure Law of Lagos State confer the right or the power, depending on how one may look at it, on private person to prefer and to prosecute before the High Court an information charging any person with an indictable offence. The relevant parts of the sections read:

 

340(1) Subject to the provisions of this section an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted and wherever an information has been so preferred the registrar shall, if he is satisfied that the requirements of the next following section have been complied with, file the information and it shall thereupon be proceeded with accordingly.

 

342 The registrar shall receive an information from a A private person if -

 

(a)   it has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth and

 

(b)   such private person has entered into a recognizance in the sum of one hundred naira, together with one surety to be approved by the registrar in the like sum, to prosecute the said information to conclusion at the times at which the accused shall be required to appear and to pay such costs as may be ordered by the court, or in lieu of entering into such recognisance shall have deposited one hundred naira in court to abide the same conditions.

 

343 Where any private person has complied with the provisions of section 342 the information shall be signed by such person and not by a law officer, or other person designated D by the State Commissioner as aforesaid and such person shall be entitled to prosecute the information, but nothing in this section shall be construed so as to exclude the provisions of section 8 of the Lagos State (Interim Provisions) Decree, 1968.

 

It follows from the foregoing that the Appellant, being a private person, has the statutory right or power to prefer information before the High Court charging the suspects with the murder of Dele Giwa.

 

Now, by the combined effect of the Administration of Justice (Miscellaneous Provisions) Amendment Edict, 1979 and the Administration of justice (Miscellaneous Provisions) (Amendment) Edict, 1984 and the Criminal Procedure (Amendment) Edict 1987, section 340(1) and (2) now read:

 

340(1) Subject to the provisions of this section an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and wherever an information has been so preferred the Registrar shall, if he is satisfied that the requirements of the next following section have been complied with, file the information and it shall thereupon be proceeded with accordingly.

Provided that if the Registrar shall refuse to file an information, a judge, if satisfied that the said requirements have been complied with, may, on the application of the prosecutor or on  his own motion, direct the Registrar to file the information and it shall be filed accordingly.

 

(2)    Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless the information is preferred pursuant to an order made under  Part 31 to prosecute the person charged for perjury:

 

The amendments by the Edicts have limited the right of a private prosecutor to prefer an information for the offence of perjury only. He has no right to prefer an information charging any person with murder.

 

Consequently, on 24 February, 1988 when the Respondent made the application for leave to apply for mandamus with a view to exercising his purported right to prefer and to prosecute an information charging the Appellants with the alleged murder of Dele Giwa, the Respondent had no such right. The Court of Appeal therefore erred in law in assuming he had such right. It also erred in law in presuming that he had initiated the exercise of such right.

 

On 5th December, 1988 when I allowed this interlocutory appeal, I ordered that the substantive appeal then pending in the Court of Appeal should be heard by a panel other than the panel that heard the interlocutory appeal. My only reason for making the order was that their ruling showed they had already made up their minds on the substantive appeal and had reached a decision on it. In his lead ruling, with which the other Justices agreed Akpata, JCA stated:

While I do not consider it vexatious, and it is not the issue now, for the respondent to institute his action to obtain relief in respect of the same subject-matter raised by the applicant in the criminal proceeding already initiated, I find it highly undesirable and unethical that the civil action should be allowed to take off while the criminal proceeding which was first in time is halted

 

It is also true that no information has been filed against the Respondent. One, however, should not lose sight of the fact that on 2/3/88 when the Applicant was granted leave to apply for Order of Mandamus, on the application of their Counsel the Respondent and Lt. Col. A. K. Togun were made parties to the Mandamus proceedings. The Mandamus proceeding is an important statutory legal exercise that should be embarked upon by an individual to initiate criminal proceedings. The step taken by the Applicant has crystalised into a criminal proceeding which takes precedence over and above a subsequent civil action based on the same or substantially the same subject-matter. An act which has some degree of formality and significance and which was done pursuant to any rule of court and has received the attention of the court is a proceeding. I hold the view that where a citizen has evinced an intention to have another prosecuted for a felonious act by proceeding under section 342, and that another subsequently institutes a civil action against the citizen on the same or substantially the same cause of action, the civil action should be stayed pending the outcome of the criminal proceedings.

 

It is transparently clear from the foregoing the panel granted not only an interlocutory stay which was asked for but it also went on to pronounce that the action for defamation, which was the subject matter of the appeal, should be stayed pending the determination of the criminal proceeding purportedly initiated by the Respondent and any other criminal proceeding he may subsequently decide to institute against the Appellants under Section 342 of the Criminal Procedure Law.

 

In parenthesis, it may be pointed out that in Fawehinmi V. Akilu & Anor. (supra), Chief Fawehinmi applied for leave to apply for an order of mandamus compelling the Attorney-General of Lagos State to decide whether or not the Attorney-General would prosecute Col. Akilu and Lt. Col. Togun for the alleged murder of Dele Giwa and, if the Attorney declined to prosecute, to endorse to that effect the information submitted to the Attorney by Chief Fawehinmi so that the latter might exercise the then right of a private person to prosecute under section 340(1) of the Criminal Procedure Law. The application for leave was made on 7th November, 1986 long before the amendments to section 340 of the Criminal Procedure Law, which took away the right of a private person to prosecute murder offence, came into force. That being the case, the application for leave had to be determined in accordance with the provision of section 6(1)(e) of the Interpretation Act 1964 which states:

6 (1) The repeal of an enactment shall not –

(e)   affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment: and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed.

 

Accordingly, although this Court delivered its judgment in Fawehinmi y,. Akilu & Anor. (supra) on 18th December, 1987, after the Amendment Edicts had come into force, the court decided the appeal on the law as it existed before the enactment of the Edicts.

 

For the purpose of clarity, I may reiterate that in Lagos State, as from 14th July, 1987, a private person has no statutory right to prefer and prosecute an information charging any person with an indictable offence other than perjury.

 

 

Judgment delivered by

Obaseki. J.S.C.

 

On the 5th day of December, 1988, after hearing the submissions of counsel to the appellant and hearing the respondent and considering the briefs filed by the parties together with the proceedings and judgment in the High Court and Court of Appeal, I allowed the appeal, set aside the order of stay of proceedings in the High Court in suit No. ID/312/88 pending the determination of the appeal against the order of dismissal by Ilori, J. of the application "either to strike out the suit No. ID/312/88 on the ground that it is an abuse of the process of the court or to stay further proceedings in the suit pending the final determination of Suit No. M/87/88 and any criminal proceeding that may be commenced thereupon against the plaintiff/respondent in the case for conspiracy to murder and murder of Dele Giwa." I then ordered that the substantive appeal pending in the Court of Appeal against the decision of the High Court be heard expeditiously before a panel of the Justices of the Court of Appeal different from the one that heard and determined the interlocutory application and reserved my reasons for the decision till today.

 

The facts of the case have been set out in detail in the Reasons for Judgment just delivered by my learned brother, Karibi-Whyte, J.S.C. and I need not repeat them here except such as are necessary for my consideration in these Reasons for Judgment.

 

I must warn myself that the substantive appeal against the order of refusal of the application by Ilorin, J. is still pending before the Court of Appeal. I must also warn myself that the substantive appeal against the order of Agoro, J. in suit M/87/88 is still pending before the Court of Appeal. Indeed the record of appeal in both cases were before the Court of Appeal at the time the interlocutory application for a stay of proceedings in suit No. ID/312/88 pending the final determination of the appeal was argued.

 

My learned brother Karibi-Whyte, J.S.C. has set out in admirable detail the principles on which a court should act when considering an application for stay of proceedings. I would add one more to them. It is the one created by the circumstances of this case and I will state it thus:

 

where an appeal against a refusal of a stay of proceedings has been entered in the Court of Appeal, it is an abuse of the process of the court to file an application for stay of proceedings in the court below instead of applying for accelerated hearing.

 

To grant such an application is a wrong exercise of judicial discretion.

 

The danger inherent in entertaining such an application is the errors of trespassing into areas of consideration properly belonging to the substantive appeal and the improper use of materials compiled for the substantive appeal.

 

In this appeal before us, the issues

(1)   whether the respondent has a right to apply for mandamus:

(2)   whether the proceedings in suit No. ID/3l2/88 should be staved or not pending the determination of the mandamus proceedings on appeal in M/87/88 and any criminal proceedings that may be commenced thereupon.

are matters to be dealt with and properly belonging to the substantive appeal.

 

The Court of Appeal failed to confine itself within the limits of the application before it and made excursion into areas properly belonging to the substantive appeal. Where the decision in the substantive appeal will dispose of the interlocutory application to delay the hearing of the substantive appeal cannot be anything else but a denial of justice for justice delayed is justice denied. Every appellant or respondent is entitled to have his or her matter heard and determined within a reasonable time which means within the minimum of time possible. A court that is ready to hear and determine the interlocutory application cannot be heard to say that it cannot find time to hear and determine the substantive appeal.

 

What are the errors into which the Court of Appeal fell?

 

(1)   The application before the Court of Appeal was not brought to it by way of appeal but by originating motion invoking the inherent jurisdiction of the court under section 6(6)(a) of the 1979 Constitution.

 

The application in extension reads:

 

Motion On Notice

Brought Under

1.             Section 221(1) of the 1979 Constitution

2.             The Inherent Jurisdiction of the Court preserved by section 6(6)(a) of the 1979 Constitution.

 

TAKE NOTICE that this Honourable Court will be moved on …………. the …………… day of ……… 1988 at the hour of 9 o'clock in the forenoon or so soon thereafter as the defendant/applicant can be heard for:

 

AN ORDER staying further proceedings in suit No.ID/312/88 pending the hearing and final determination of he appeal lodged by the appellant/applicant herein against the Ruling of Honourable Justice S. 0.Ilori dated 6th May,1988.

 

AND for such further order or other orders as this Honourable Court may consider fit in the circumstance.

 

Dated this 6th day of June, 1988

 

The ground for the application for the stay of proceedings sought from  the Court of Appeal in this application was clearly stated in the affidavit evidence filed in support of the application and in paragraphs 8,9, 10, 11, 12, 13 and 14 of the affidavit in particular. These paragraphs read:

 

8.     That an appeal has been filed against the Ruling of the High Court dated 6th May, 1988. Annexed hereto is a copy of the notice of appeal together with the receipt marked Exhibits 'BI' and 'B2' respectively;

 

9.     That upon the filing of the said appeal, I applied to the High Court for the following orders;

 

(i)     AN ORDER granting leave to appeal on grounds of mixed law and facts contained in the notice of appeal;

(ii)    AN ORDER staying further proceedings in the case pending the hearing and final determination of the appeal lodged against the Ruling of the Honourable Court dated 6th May, 1988

 

10.   That on Monday, the 23rd day of May, 1988, the High Court heard my application for the orders stated in paragraph 4 above and granted me leave to appeal while he adjourned the Ruling on the application for stay of proceedings to 3rd day of June, 1988.

 

11.   That on the 3rd day of June, 1988, Honourable Justice S.O Ilori gave a Ruling refusing the application for an order staying proceedings in suit No. ID/312/88 pending the hearing and final determination of the appeal lodged against the Ruling dated 6th May, 1988. Annexed hereto is a copy of the Ruling marked Exhibit C';

 

12.   That consequent upon the refusal to grant a stay of proceeding as stated above, I make this application to the Court of Appeal;

 

13.   That the plaintiff/respondent is the Director of Military Intelligence and therefore a person in authority whom I verily believe will interfere with witnesses that might be called by me for the proof of his suit of the alleged offences of murder if the civil suit were allowed to proceed to trial before suit No. M/87/88;

 

14.    That I believe that if this application for stay of proceedings  pending appeal to this Honourable Court is not granted by this Honourable Court, the appeal would be rendered ineffective in that the High Court would be at liberty to proceed with the hearing and determination of the civil suit and if the appeal succeeds after such hearing and determination of the civil suit by the High Court the success of the appeal would be rendered nugatory.

 

It is clear, therefore, that the fact deposed to in paragraph 14 formed the basis or ground for this application. It is to preserve the res. Other considerations which are more appropriate to be urged in the main appeal have to await the hearing of the main appeal. See Vaswani Trading Co. Ltd. v. Savalakh & Co. (1972)12 S.C. 77; Kigo (Nigeria) Ltd. v. Holman Bros. (Nigeria) Ltd. (1980)5-7 S.C. 60 at 73.

 

There is no doubt that section 6(6)(a) of the 1979 Constitution gives inherent power to all superior courts in Nigeria to preserve the Res. but care should be taken to distinguish the interlocutory application from the substantive appeal as it is not the law that the substantive appeal can be disposed of in the interlocutory application. When Akpata, J.C.A. in his lead judgment in the Court of Appeal on the application said:

 

In my view, to allow the civil action of the respondent to proceed in the circumstances of this case will be most unjust and inequitable. It would be a most dangerous legal precedent which I think will offend not only minds learned in the law but also the minds of honest and right thinking laymen. It would amount to the court granting a standing invitation to anyone accused rightly or wrongly of a crime to opt for a civil action against his accuser while at his behest the criminal proceeding instituted against him is stayed. It is not right. It is odd. The criminal proceeding should be allowed to run itself out or run its full course before the civil action can justifiably be entertained.

 

he was training his mind on the main appeal. He did not stop there. Continuing, he said:

 

Ordinarily, all that an accused person is entitled to is the proof of evidence of the offence alleged against him. He is not entitled to have prospective witnesses produced and have them testified and cross-examined before the actual criminal proceedings, except by way of preliminary investigation. In the instant case, if the civil action is not stayed, the respondent would be provided with more than he is entitled to. He would, as it were, be obtaining through the back what is denied him by due legal process. "(Italics mine).

 

The learned Justice of the Court of Appeal, with due respect, has allowed his mind to wander outside the confines imposed by the application of the respondent before him.

 

It was for the above reasons that I allowed the appeal.

 

 

Judgment delivered by

Uwais. J.S.C.

 

When we heard this appeal on the 5th day of December, 1988 we allowed it and intimated that our reasons for doing so would be given today. I now express mine.

 

The appeal is an interlocutory appeal and its facts are inextricably interwoven with the facts of other cases. However, care need be taken not to confuse the present case with those to which it is akin. With unnecessary details which tend to confuse the facts ignored, the facts of the case are simply as follows.

 

A journalist, called Dele Giwa, was killed by a letter bomb. The respondent sought in 1986 to bring a private prosecution against the appellant for conspiracy to murder and the murder of Dele Giwa, if the Attorney-General of Lagos State would allow him to do so pursuant to Section 342 of the Criminal Procedure Law Cap. 32 of the Laws of Lagos State, 1973. The attorney-General did not grant the respondent the fiat to prosecute. Instead, information was filed in the High Court of Lagos State by the Attorney-General against the appellant. In the information, the appellant together with one Lt. Col. A. K. Togun were made co-accused.

 

At the trial in the High Court, the accused persons raised a preliminary objection on grounds of procedure and law, to wit, that the necessary direction of the High Court was not obtained before the information was filed by the Attorney-General and the facts contained in the proofs of evidence filed by the Attorney-General were not sufficient to ground the information. The preliminary objection was upheld by the trial Judge who quashed the information.

 

A day after the information was quashed, that is the 24th day of February, 1988, the respondent wrote the Attorney-General a letter indicating that he had fresh facts on which another information could be filed against the appellant and Lt. Col. A. K. Togun for the conspiracy to murder and murder of Dele Giwa. In the letter, the respondent also requested the Attorney-General to exercise her powers under section 342 of the Criminal Procedure Law, Cap. 32 to prosecute the appellant or allow him (respondent) to bring a private prosecution against the appellant. Contemporaneous with sending the letter to the Attorney-General, the respondent on the 24th day of February, 1988 "published to numerous establishments in Lagos who are engaged in the publication of daily newspapers or weekly magazines a letter dated the 24th day of February, 1988" which contained a two count charge information against the appellant and Lt. Col. A. K. Togun, alleging that they conspired to murder and did murder late Dele Giwa.

 

The Attorney-General took no action. The respondent therefore brought an application in the High Court (Suit No. M/87/88) for leave to bring an application for an order of mandamus against the Attorney-General, so that the latter might be compelled to exercise her powers under Section 342 of the Criminal Procedure Law, to either file a fresh information against the appellant or give the respondent the permission to do so privately. The application was granted on the 2nd day of March, 1988. The appellant inter alia filed an appeal against the ruling of the High Court granting the respondent leave to bring the application for order of mandamus. The appeal is now pending in the Court of Appeal. Because of the pending appeal, a stay of proceedings had been granted by the High Court. Consequently, the respondent has not been able to bring the application for mandamus to issue against the Attorney-General.

 

Soon after the application for leave to apply for order of mandamus (Suit No. M/87/88) was granted the appellant jointly with Lt. Col. A. K. Togun, took out a writ of summons in the High Court against the respondent on the 4th day of March, 1988 claiming damages for libel (Suit No. ID/312/ 88). The writ was served together with a statement of claim on the respondent. The respondent then entered a conditional appearance and filed a motion on notice dated 21st March, 1988 in the Suit (No. ID/312188) asking the High Court for -

 

An order striking out this suit on the ground that it is an abuse of the process of the court.

 

GROUNDS

 

(A)  The suit violates the right of the Defendant/Applicant as a private prosecutor under Section 342 of the Criminal Procedure Law of Lagos State, Cap.32, as interpreted by the Supreme Court in the case of Chief Gani Fawehinmi V. Col. Halilu Akilu & Lt. Col. A. K. To gun, in Appeal No. SC.43/1987 (Reported in (1987) 4 N.W.L.R. (Part 67) 797).

 

(B)   The suit violates Section 36 of the 1979 Constitution and derogates from Section 21 of the said Constitution.

 

(C)   Even if (which is denied) all the allegations contained in the statement of claim are admitted for the purpose of this application the Plaintiff's action will still constitute an abuse of the process of the Court.

 

ALTERNATIVELY

 

An order staying proceedings in this case pending the final determination of Suit No. M/87/88 (of which) the "words complained of" formed a part, and instituted pursuant to Section 342 of the Criminal Procedure Law of Lagos State (Cap.32) and any Criminal Proceeding that may be commenced thereupon against the Plaintiff/Respondent in this case for conspiracy to murder and murder of Dele Giwa.

GROUND

The Suit is oppressive, vexatious and intimidating and it constitutes an abuse of the process of Court.

 

The application was heard by lIon J. who delivered his ruling on the 6th day of May, 1988, rejecting all the prayers therein.

 

Dissatisfied with the ruling, the respondent appealed from it to the Court of Appeal and filed six grounds of appeal which I do not consider necessary to reproduce here. Suffice it to say that in his notice of appeal the respondent asked for the following reliefs from the Court of Appeal -

 

1.     AN ORDER allowing the appeal.

2.     AN ORDER striking-out Suit No. ID/312/88 or alternatively an order staying further proceeding in the said suit pending the final determination of Suit No. M/87/88 and any criminal proceeding that may be commenced thereupon against the present plaintiff respondent (that is appellant)."

 

In effect the second relief sought by the respondent is the same as the one prayed for in his application before lIori J dated the 21st day of March, 1988 (see above) which was not granted by the High Court.

 

Now after filing the notice of appeal, the respondent applied to the High Court inter alia for -

 

2.     An order staying further proceedings in this case pending the hearing and final determination of the appeal lodged by the applicant against the Ruling of this Honourable Court dated 6th May, 1988.

 

The prayer for stay of proceedings was refused once more by lIori, J. Therefore, the respondent made the same application for stay of proceedings to the Court of Appeal. In its ruling the Court of Appeal (per Akpata, J.C.A.) pronounced on a number of issues which concern the pending appeal in that Court filed by the respondent against the ruling given by lIon, J. on the 6th day of May, 1988. That appeal is still pending before the Court of Appeal, it has not been heard yet and no argument has been advanced by the parties on the appeal. It suffices for the purpose of this appeal to reproduce the following excerpts from the ruling given by the Court of Appeal -

 

……..A long line of decided authorities have laid down the principles that should guide the courts in applications for stay of proceedings. These principles were succinctly summed up and previous authorities reviewed in the cases of 

(1) Chief Y. P.O. Shodeinde V Registered Trustees of the Ahmadiyya Movement-in-Islam, (1980)1-2 S.C. 163 and (2) Kigo (Nigeria) Lid. v. Ho/man Bros. (Nigeria) Ltd., (1980) 5-7 S.C.60. 

The onus is on the party applying for a stay pending appeal to satisfy the Court that in the peculiar circumstances of his case, a refusal for a stay would be unjust and inequitable. It is also the duty of Court to see that an appeal, if successful, is not in vain. ........................................

 

In Shackleton V Swift, (Supra) [(1913) 2 KB 304] it was held that a Court ought not to stay an action unless, either the action before the Court was demurrable in the old days or the action is of such character that there is a plain reason why it must fail. The applicant (i.e. respondent) in his application in the lower court urged the Court to hold that the action was incompetent. In effect he was saying that the action was demurrable. Therefore in the light of the ratio in Shackleton V. Swift there is basis for granting a stay. ……………

While I do not consider it vexatious, and it is not the issue now, for the respondent (i.e. appellant) to institute his action to obtain relief in respect of the same subject-matter raised by the applicant in the criminal proceeding already initiated, I find it highly undesirable and unethical that the civil action should be allowed to take off while the criminal proceeding which was first in time was halted. It is immaterial that the criminal proceeding was stayed by another Judge. Looked at objectively, it runs against the grain of justice. …………………

 

It is also true that no information has been filed against the respondent (i.e. appellant). One however should not lose sight of the fact that on 2/3/88 when the Applicant (i.e. respondent) was granted leave to apply for Order of Mandamus, on the application of their Counsel the Respondent and Lt. Col. A. K. Togun were made parties to the Mandamus proceedings. The Mandamus proceeding is an important statutory legal exercise that should be embarked upon by an individual to initiate criminal proceedings. The step taken by Applicant has crystalised into a criminal proceeding which takes precedence over and above a subsequent civil action based on the same or substantially the same subject-matter. An act which has some degree of formality and significance and which was done pursuant to any rule of Court and has received the attention of the Court is a proceeding. I hold the view that where a citizen has evinced an intention to have another prosecuted for a felonious act by proceeding under Section 342, and that another subsequently institutes a civil action against the citizen on the same or substantially the same cause of action, the civil action should be stayed pending the outcome of the criminal proceedings ………………………

In my view, to allow the civil action of the respondent (i.e. appellant) to proceed in the circumstances of this case will be  most unjust and inequitable. It would he a most dangerous legal precedent which I think will offend not only minds learned in the law but also the minds of honest and right thinking laymen it would amount to the court granting a standing invitation to anyone accused, rightly or wrongly, of a crime to opt for a civil action against his accuser, while at his behest, the criminal proceeding initiated against him is stayed. It is not right. It is odd. The criminal proceeding should be allowed to run itself out or run its full course before the civil action can justifiably be entertained." (all italics mine).

 

The Court of Appeal then went on to grant the application by ordering the stay of proceedings in Suit No. 1D/312/88 pending the determination of the appeal.

 

The appeal before us, which is brought by the appellant, is against that ruling of the Court of Appeal. Eleven grounds of appeal were filed by the appellant and in his brief of argument nine issues for determination are formulated. The respondent does not accept the formulation on the ground that some of the issues raised therein do not relate to the grounds of appeal nor to the conclusion reached by the Court of Appeal. He, therefore, proposed that the issues for determination should be -

 

1.     Whether having regard to the facts of this case it is proper, just and equitable to stay further proceedings in the trial Court pending the final determination of the appeal lodged to the Court of  Appeal by the Defendant against the Ruling of the trial Court dated 6th May, 1988

 

2.     Whether the reasons or some of the reasons given by the Court of Appeal are valid in law to support the conclusion reached by the Court in its order staying further proceedings in the trial court pending the determination of the Defendant's appeal.

 

3.     Whether the members of the Panel of the Court of Appeal that delivered the Ruling dated 15th September, 1988 are disqualified in law in adjudicating on the defendant's appeal.

 

4.     Whether the arguments on page 9 paragraph 4 - page 21 paragraph 6 of the Appellant's Brief are relevant to this appeal.

 

I prefer the formulation of the questions for determination contained in the respondent's brief of argument. As these are concurring reasons for judgment, I intend to consider the first issue for determination only which appears to concisely state the main contention in the appeal.

 

It is not in dispute that courts have inherent power to stay proceedings pending appeal in order that the res may be preserved. Though the power is indeed discretionary, it must be exercised judicially as well as judiciously -See Shodeinde & Ors. V. The Trustees of Ahmadiyya Movement-in-islam, (1980)1-2 S.C. 163 and Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd., (1980) 5-7 S.C. 60. Some of the considerations which the courts bring to bear on any application for stay of proceedings pending appeal are that the burden is on the applicant for stay of proceedings to show that if the appeal should succeed, the success would not be in vain. Also that in the peculiar circumstances of the case a refusal of stay of proceedings would not be unjust and unequitable. The conduct of the parties to the case is also taken into consideration by the courts - see Jadesimi V. Okotie-Eboh, (1986)1 N.W.L.R. F (Part 16) 264; Obeva Memorial Specialist Hospital & Anor. v. A. -G. of the Federation &Anor., (1987) 3N.W.L.R. (Part 60) 325 and Okafor V. Nnaife, (1987) 4 N.W.L.R. (Part 64)129.

 

The Court of Appeal made reference in its ruling to these general principles applicable to stay of proceedings - see the quotation above. Now applying the principles to the facts of this case, was the Court of Appeal right in granting the respondent the stay of proceedings?

 

It is obvious from the quotation of the ruling that the Court of Appeal was under the misconception that the respondent had brought a criminal proceedings against the appellant on the murder of Dele Giwa, for it states that it is unethical and undesirable that a civil action should be allowed to proceed while a criminal case which was earlier instituted should be halted. But nothing of the sort has happened in the circumstances of this case. All that the respondent has done amounts to taking preliminary steps in Suit No. M/87/88 to compel the Attorney-General of Lagos State to exercise her powers under Section 342 of the Criminal Procedure Law. The substantive application for the Order of Mandamus has not even been brought by the respondent. It is after the substantive application is brought and granted and the Attorney-General issued the fiat that the respondent can bring private prosecution that the steps taken by the respondent can be said to have "crystallised into a criminal proceeding." From the facts available and as narrated at the beginning of this judgment, the respondent's position is far from the stage at which he can institute the criminal proceedings he would like to privately bring against the appellant. In other words it is not enough for an intending private prosecutor to evince the intention to commence a private prosecution under Section 342, as the Court of Appeal held, the private prosecutor must show that he has in fact instituted the criminal case in a court before the stay of any civil action based on the same facts as those of the criminal case can be granted.

 

Furthermore, the respondent's alternative prayer to the Court of Appeal which reads -

 

An order staying proceedings in this case pending the final de termination of Suit No. M/87188 (of which) the words complained of' formed a part, and instituted pursuant to Section 342 of the Criminal Procedure Law of Lagos State (Cap.32) and any criminal proceedings that may be commenced thereupon against the Plaintiff Respondent in this case for conspiracy to murder of Dele Giwa.

 

cannot possibly be acceded to. To start with Suit No. M/87/88 is not a criminal proceeding. It is not brought under Section 342 of the Criminal Procedure Law. It is simply a civil application nisi for the prerogative order of mandamus to issue. The second leg of the alternative prayer is merely speculative. For how can a court grant a stay on the basis that one day a prospective private prosecutor might decide to file an information when it is not even within the power of the prospective private prosecutor to walk on his own straight into the courts and file an information against the appellant. By law (section 342) the prospective prosecutor must obtain the fiat of the Attorney-General first. The respondent in this case is well aware of the obstacle against private prosecution and that is why he first of all wrote to the Attorney-General for the fiat before making the application in suit No. M/87/88.

 

Therefore, applying the general principles of stay of proceedings pending appeal to the peculiar circumstances of this case, it is obvious to me that the Court of Appeal was in serious error when it granted the respondent's application for stay. There was no criminal case instituted by the respondent or pending in any court on account of which the appellant's suit No. ID/312/ 88 could have been stayed.

 

As a footnote, I think the ruling of the Court of Appeal went too far in determining some of the issues raised in the pending appeal of the respondent in that Court. (See the excerpts above). In my opinion, this is prejudicial to the proper determination of the appeal and was for the purpose of the application for stay of proceedings unnecessary.

 

It was for those and the reasons given by my learned brother Karibi-Whyte, J.S.C. the draft of which I have read and agreed with, that I agreed on the 5th December, 1988 that this appeal should be allowed and in addition, the judgment of the Court of Appeal be set aside and the ruling of Ilori, J. which was given on the 6th day of May, 1988 be restored.

 

As the learned counsel for the appellant and Chief Gani Fawehinmi agreed by consent, as counsel for the appellant and the respondent respectively in Lt. Col. A. K. To gun V. Chief Gani Fawehinmi, S.C. 216/1988, which is pending in this Court, that the result in the present case shall automatically apply to that case, then the appeal in that case also succeeds and the consequential orders herein apply to it.

 

 

Judgment delivered by

Belgore. J.S.C.

 

I have had a preview of the reasons for judgment given by Karibi-Whyte, J.S.C. I agree with him entirely and it was for the same reasons that I, on the 5th day of December, 1988, allowed the appeal in this case and ordered expeditious hearing before another panel of Court of Appeal in the pending appeal in that Court. I also ordered N 500.00 as costs of this appeal against the respondent.

 

 

Judgment delivered by

Nnaemeka-Agu. J.S.C.

 

The first of these appeals is an appeal by Colonel Halilu Akilu (hereinafter called the appellant) and the second by Lt.Col. A.K. Togun (also called the appellant) in a case which, because of the multiplicity and variety of connected proceedings between the parties, has assumed a rather complex dimension. I shall, however, endeavour to limit myself to only the salient facts sufficient to sustain my points of view, particularly as my learned brother. Karibi-Whyte, J..S.C., has comprehensively dealt with the facts.

 

On the 5th of December, 1988, this Court, after hearing arguments of parties, after reading their briefs and the record, allowed the appeal and reserved the reasons for the judgments till today. I hereby give my reasons. Chief Gani Fawehinmi shall be referred to as the respondent in this appeal.

 

The appeal arose from the attempt of the respondent to get each of the appellants prosecuted for conspiracy to murder and for the murder of Dele Giwa. The respondent, as a prospective private prosecutor, applied to the Attorney-General of Lagos State to indicate whether she would prosecute the suspects for murder under section 342 of the Criminal Procedure Law, and, if she would not, she should endorse a certificate to that effect so that the respondent could institute private prosecution for the alleged offences. As the respondent did not get the reaction of the Attorney-General, he applied for, and was granted leave by Agoro, J., in Suit No. M/87/88 to apply for an order of mandamus to compel the Attorney-General to exercise her discretion and state whether or not she would prosecute the appellant and Lt. Colonel Togun for the offences of conspiracy and murder. On the grant of the leave to apply for mandamus on March, 3, 1988, Chief F.R.A. Williams, for each appellant, applied on their behalf and they were made parties to the proceedings for mandamus. On the following day, both of them applied for leave to appeal against the order of Agoro, J., granting the respondent leave to apply for an order of mandamus. The appellant and Lt. Colonel Togun shall hereinafter together be referred to as appellants, when it is necessary to refer to both of them.

 

On the 4th of March, 1988, the appellants commenced an action by writs of summons in Suit Nos. ID/312/88 and ID/313/88, which were accompanied by statements of claim, against the respondent, in an Ikeja High Court, each claiming the sum of N5 million for libel. It was alleged therein that on the 24th of February, 1988, the respondent falsely and maliciously published to some newspaper and magazine establishments a letter of that date in which he enclosed a document showing that he had discovered fresh evidence which showed that the appellants committed the offences of conspiracy and murder of Dele Giwa.

 

After entering a conditional appearance to the libel actions, the respondent filed a motion dated 21st March, 1988, for an order striking out the actions on the ground that they were an abuse of process or, in the alternative, an order staying further proceedings pending the determination of Suit No. M/87/88 "and any Criminal proceedings that may be commenced thereupon" against the appellants. Ilori, J., refused to make either order.

 

The respondent appealed against the ruling of Ilori, J. Then he applied to the High Court for a stay of further proceedings in Suit No. ID/312/88 pending the final determination of the appeal lodged against the ruling of Ilori, J. On the application being refused by the High Court, he filed a motion in the same terms in the Court of Appeal. In the meantime, the appellants on their own applications, had proceedings in Suit No.  M/87/88 (the mandamus proceedings) stayed by Agoro, J. On the 15th of September, 1988, the Court of Appeal, Lagos Division, in a considered ruling in Appeal No. CA/L/197M/ 88: Fawehinmi V. Akilu ((1988) 4 NWLR (Pt.88) 367) stayed the proceedings in the libel actions (Suit Nos. 1D/312/88 and 1D/313/88, pending the determination of the appeal lodged by the respondent against the ruling of Ilori, J. It is that ruling that forms the subject of this appeal.

 

The appellant has framed nine issues for determination, and the respondent four. My learned brother has set out these issues in full in his lead reasons for judgment, and I do not intend to set them out again here. Also, I wish to limit my comments to only two vital issues. The two central issues which I shall deal with are:

 

(1)   Whether on the facts stated above, the fact that, in the substantive suit No. M/87/88, the respondent unsuccessfully claimed a remedy of "an order staying proceedings or further proceedings", which matter was then pending on appeal before the Court of Appeal, should have precluded that Court from entertaining and granting the relief of stay of proceedings prayed for in the application?

 

(2)   Whether the mandamus proceeding so far is a civil or criminal  proceeding and was entitled to be given priority as against the action for libel?

 

(3)   Whether mandamus to prosecute a murder case can now lie in Lagos State.

 

I wish to begin with the above-stated second central issue first, that is, to address myself as to whether a proceeding for mandamus with an intention to prosecute, if the application is granted, is civil or criminal. This is because it appears to me that a misapprehension of the true position apparently influenced the judgment of the Court of Appeal appealed against.

 

On the above premises, a consideration of whether or not a leave to apply for mandamus, which application, if it is successful, may ultimately enable the applicant to prosecute a criminal charge, is civil or criminal in nature is inescapable.

In this respect, I shall be guided by the definition of "criminal proceedings" by this Court in Olalere Obadara & Ors V The President, Ibadan West District Council Grade B Customary Court (1964)1 All N.L.R. 336, where it  was held, per Brett, Ag. C.J.N., thus:

 

The words "criminal proceedings in Section 117 (of the Constitution of 1963) read as a whole, particularly in the light of subsection 6(a), mean proceedings in which a person is accused of an offence in those proceedings: but the present appellants were not accused persons in that sense in the High Court proceedings for prohibition, and these proceedings were civil proceedings." (Italics mine).

 

In that case, the Supreme Court was considering the classification of a proceeding for prohibition - a sister prerogative remedy to mandamus. Now the relevant provisions in section 117 of the 1963 Constitution, i.e., sub-section (2)(a) and (b) and sub-section 6(a) are in pari materia to section 220(l)(a) and (b) and 222(a) and (b) of the 1979 Constitution, which, inter alia, regulate the exercise of the right of appeal to the Court of Appeal.

 

In the application for leave to apply for mandamus the matter was between Chief Gani Fawehinmi, as the applicant, and the Attorney-General of Lagos State, as the respondent. No one was being accused of any criminal offence in those proceedings. It was only after the grant of the application that the appellants applied to be joined, obviously, as the facts showed, to enable them appeal against the order. The Attorney-General was not being accused of any offence. He was merely an applicant intending to be a prosecutor; if all the necessary stages were passed. In Obadara's Case (supra) the operative words are "accused of an offence those proceedings". In the context of Obadara's Case (supra), therefore, the matter was not yet a criminal proceeding.

 

Previous direct pronouncements of this Court also support the view that an application for leave to apply for mandamus or for mandamus is a civil, not a criminal proceeding. In the case of Chief Gani Fawehinmi V Col. Halilu Akilu & Anor. (1987) 4 N.W.L.R.(Pt.67) 797, my learned brother, Obaseki, J.S.C., 'with whose opinion majority of the other Justices concurred said at p.821:

Although it cannot be said that an application for an order of mandamus or the application for the grant of leave to apply for an order of mandamus in the circumstances of this case is not a civil proceeding, the main purpose of the order sought is to enable the initiation of criminal proceeding.

 

See also the opinion of the Court of Appeal, Lagos Division, in Chief Gani Fawehinmi V Col. Halilu Akilu & Anor. (1987) 1 N.W.L.R. (Pt.51) 554, at pp.568-569. Thus, Obaseki, J.S.C., conceded that proceedings for mandamus or leave to apply for mandamus were civil, not criminal in nature.

 

This Court which was in that case considering the issue of locus standi decided to widen the scope of locus standi in such matters, by considering the purpose of the proceedings, a departure from its rather constricted stance in Adesanya V The President of Nigeria (1981)1 All N.L.R. (Pt.1) 1. It had in Attorney-General of Kaduna State V Hassan (1985) 2 N.W.L.R. (Pt.8) 483, shown its discomfort with the position of locus standi, as by Adesanya decision. My learneded brother, Eso, J.S.C., who agreed with Obaseki in Fawehinmi V. Akilu & Anor. (Supra) put the rationale of that decision beyond doubt where he stated at p.847:

 

In the instant appeal before this Court, I think, with respect, that the lead judgment of my learned brother, Obaseki, J S.C., is an advancement of the position hitherto held by this Court in the Abraham Adesanya Case and subsequent decisions, for strictly speaking, my Lord Nnaemeka-Agu, J.C.A. (as he then was) who  no doubt was right in his interpretation of the stand of this Court, and , so, strictly on those authorities of this Court, along, his judgment with respect, could not be faulted ………………

 

My humble view, and this Court should accept it as such, is that the present decision of my learned brother, Obaseki, J.S.C., in this appeal has gone beyond the Abraham Adesanya Case. I am in complete agreement with the trend .........………

 

Thus, consciously, this Court was widening the scope of the application of the doctrine of locus standi. Fawehinmi V Akilu (supra) represents the new trend - the widened scope of the application of the doctrine. It has been broadened by the Criminal Code, the Criminal Procedure Law and a broad interpretation of the Constitution itself.

 

If the issues raised by this appeal were simply that of locus standi, I would have bowed to the opinions of my learned and respected brothers for the welcome development of the law on the point. It is true that majority of the judges of this country have for some time now been feeling that although Adesanya's case was rightly decided on the wording of section 6(6)(b) of the 1979 Constitution, yet it has quite often proved rather too constrictive, particularly in constitutional matters. The case of Fawehinmi V Akilu (supra) is correct on principles of broad judicial policy of interpretation which is within the competence of this Court to formulate.

 

But, having said so, I must advise myself that from the nature of things judicial activism in the true common law tradition must always carry with it a co-mixture of caution and pragmatism. To give a person locus standi to initiate proceedings is one thing whereas to say that, once he evinces the intention of initiating the proceedings, certain consequences must follow is quite another. It is a different thing to say that the respondent has the locus standi to take all necessary steps and proceedings to see that the appellant is prosecuted for the serious crime he (respondent) believes that the appellant has committed. It is quite another to say that once the initial steps have been taken, it is as good as the proceedings having been commenced whereas, as I have shown, it has not. No doubt, quite often a person going from Ikoyi to London can be said to have set off on his journey once he gets into his car which will take him to Ikeja Airport from where he will fly to London. But at times, the car may crash between Ikoyi and Ikeja. At other times the scheduled flight from Ikeja to London may not take off either because the plane never arrived or that the weather is bad or for some other unavoidable reason. In each case, the journey from Ikoyi does not lead to London after all.

 

It is from similar circumstances that I wish to examine the facts of this case. The respondent has got leave to apply for mandamus. That proceeding, as I have held, is civil. Indeed, the appellants were no parties to the proceeding which was between the respondent and the Honourable Attorney-General of Lagos State. They only applied to be joined as parties, obviously so that they could appeal against the order. At that stage, no one had been charged with any offence in the proceedings. There was only an expression of an intention to do so, if all went the way the respondent expected. Section 342 of the Criminal Procedure Law still leaves it open for the Attorney-General to say she would prosecute on her own. She may well indicate that she would prosecute. If so, res cedit. Assuming, but not conceding, that an order of mandamus still lies in murder cases in Lagos State, the order of mandamus may yet be refused after the court has heard the Attorney-General, even though the leave to apply, which was granted ex parte, had been granted. Without doubt, it would have been only after all these stages had been gone through that the respondent could proceed to file a charge against the appellants. It is only then that it can be said that a criminal proceeding is pending. This is why I have come to the conclusion that the Court of Appeal stated the point correctly when it stated in part of its unanimous ruling:

 

The mandamus proceeding is an important statutory legal exercise that should be embarked upon by an individual to initiate criminal proceedings.

 

But, with greatest respects, I believe that it misdirected itself seriously when it continued:

 

The step taken by the applicant has crystallized into a criminal proceeding which takes precedence over and above a subsequent civil action based on the same or substantially the same subject-matter. An act which has some degree of formality and significance and which was done pursuant to any rule of Court is a proceeding.

 

Much as I agree that the step is a proceeding, an important one for that matter, yet, from what I have stated about the nature of a mandamus proceeding, even if its purpose is to enable a prosecution to be initiated, I find it difficult to agree that mere granting of an ex parte application for leave to apply for an order of mandamus has crystallized into a criminal proceeding. I believe that the true position is that although it is a necessary step, prescribed by statute, it is yet a civil proceeding between the respondent and the Attorney-General of Lagos State. The would-be defendants to the criminal charge are not yet parties to the proceedings. Nor have they been charged with any offence. Again, because I believe that it has been hoisted on wrong premises, I find it difficult, again with respects, to agree with the statement:

 

I hold the view that where a citizen has evinced an intention to have another prosecuted for a felonious act by proceeding under section 342, and that another subsequently institutes a civil action against the citizen on the same or substantially the same course of action, the civil action should be stayed pending the outcome of the criminal proceedings. (Italics mine)

 

This is because two vital elements which should be kept distinct appear to have been lumped together. Those elements are the intention to prosecute on the one hand and actually commencing proceedings for prosecution on the other. The difference, of course, between intention (from intentio - purpose) and action (actus, actio -act, action) is like the chasm between heaven and hell. I believe it is fundamental in our law that one cannot try a mere intention. But when that intention joins with the act, it is triable. Similarly, a benefit which ought to enure to a person on the performance of an act cannot be arrogated to him merely because he has evinced an intention to do the act. There must be a meeting of the two elements before the benefit can accrue. This is why I find the basis of the conclusion that the civil matter must await the outcome of the criminal proceedings palpably fallacious. There is yet no criminal proceeding before the Court. As even the Court of Appeal found, there was only an intention to prosecute. The basis upon which the Court of Appeal decided that precedence should be given to the criminal proceeding did not, therefore, exist.

 

Having reached the above conclusions, I must resolve the second major issue which I have set out above against the respondent. Having so resolved it, I do not consider it helpful or necessary to consider a gamut of decided cases, some of the decisions at first instance by English Courts, which have been urged on us as to which of criminal or civil cases based on the same facts should take precedence over the other. For what we have here are two competing civil proceedings arising from the same facts. I do not have to consider the purpose of either proceeding in order to decide on the issue of precedence between them.

 

The first major issue strikes at the very root of the nature of our system of administration of justice. In sum, it is this:

 

whether the respondent can institute an action claiming a particular relief in the High Court, and, having failed in getting that relief there, and having appealed to the Court of Appeal against the failure, can the Court of Appeal, while the appeal is still pending, grant him the same relief in an interlocutory application.

 

I shall briefly recapitulate the facts. After the appellant had commenced action in Suit No. 1D/312/88 for libel against the respondent, the latter filed a motion before Ilori J., for an order striking out the suit on the ground that it is an abuse of the process of the court or, in the alternative:

an order staying proceedings or further proceedings in this case pending the final determination of suit No. M/87/88 ... and any criminal proceeding that may be commenced thereupon against the Plaintiff/Respondent in this case for conspiracy to murder and murder of Dele Giwa.

 

The motion was dismissed. The respondent appealed to the Court of Appeal against the dismissal. Then he applied to the Court of Appeal for an order staying further proceedings in the libel action. The Court of Appeal, in a considered ruling, granted the application. The gravamen of the appellant's contention on this issue under consideration is that the Court of Appeal lacked jurisdiction and power to have granted on an application by a motion the same relief, to wit stay of proceedings or of further proceedings in the libel suit pending in the High Court, a relief which is substantive in nature and which the respondent had failed to get in the High Court and which was the subject of an appeal still pending in the Court of Appeal.

 

In his submission, Chief Williams for the appellant pointed out that by the Court of Appeal decision, the respondent, without firing a shot, has won the second (alternative) relief he is seeking from the Court of Appeal in the appeal still pending. This, he submitted, strikes at the power and jurisdiction of the Court of Appeal to make such a fundamental determination. He submitted that the Court of Appeal has no jurisdiction to dispose of an appeal before it on the hearing of a motion to stay proceedings pending appeal. He contended that the Court has not the power to determine a substantive issue pending before it on appeal upon the hearing of a motion before it. In support, he cited: Egbe v. Onogun (1972)1 All N.L.R. 95, at pp.98 & 99; Ojukwu V Gov. of Lagos State (1986) 3 N.W.L.R. (Pt.26) 39. p.45.

 

Citing the dicta of Udoma. J S.C., in Holman Brothers (Nig.) Lid. V Kigo (Nig.) Ltd. (1980) 8-l1 S.C. 43, at p.60, he submitted that the right of one to have his appeal heard is a constitutional right and in this country, it is a right which cannot rightly be frustrated by mere ritualistic formula used as a cloak to cover the fact that the appeal had in fact been disposed of on the merits. He submitted that the decision to stay proceedings had decided the issue in the pending appeal.

 

In his own submission, Chief Fawehinmi contended that the issue in litigation, on which the appeal is pending is wider than that decided in the application. Relying on the case of Sodeinde V The Registend Trustees of the Ahmadiyya Movement-in-Islam (1980)1-2 S.C. 163, he submitted that the fact that the prayer for stay of proceedings which was granted in the application was a part of the subject-matter of the appeal does not preclude the court from granting the stay of proceedings. The order on the application is of the nature of preserving the res, he submitted. The Court had power to do this on equitable grounds. he submitted. He cited Kigo v Holman (1980)5-7 S.C.. 60, 70-71. Adigun V A-G. of Oyo State (No.2) (1987)2 N.W.L.R. (Pt. 56)197, at p.229 to support a submission that inherent powers of courts under section 6(6)(a) of the Constitution of 1979 are exercisable on equitable grounds, to supplement the statutory jurisdiction of the court where the exercise of such a power would result in injustice. He also cited the opinion of Aniagolu, J.S.C., in the case of National Insurance Corp. of Nigeria V Power & Industrial Eng. Co. Ltd. (1986)1 N.W.L.R. (Pt.14) I, at p.29 to show how equity operates on conscience. Finally, he submitted that on the facts and circumstances of this case and on the broad principles enunciated in Jadesinmi V Okotie-Ebo (1986) 1 N.W.L.R. (Pt.16) 264, at p.277, the Court of Appeal was right to have ordered a stay of further proceedings. In particular, he pointed out that continuation of the libel suit will create a situation in which the appellant will be in a more advantageous position than the respondent. He also pointed out that aspects of the libel suit border on an infringement of the respondent's rights under section 36 of the Constitution: so as he complained of this, the Court was right to have stayed further proceedings.

 

I wish to begin my consideration of this issue by adverting to the nature of the jurisdiction of the Court of Appeal. Without doubt, it is wholly appellate, the only original jurisdiction it used to have under Decree No.42 of 1976 over disputes between States or between a State and the Federal Government having been swept away by the 1979 Constitution which now vests it in the Supreme Court (see section 212 of the 1979 Constitution). The jurisdiction of the Court of Appeal is now conferred mainly by section 219 of the Constitution which provides as follows:

 

219. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State.

 

See also section 225 with respect to appeals from decision of Code of Conduct Tribunal. Then sections 220 to 224 spell out how that wholly appellate jurisdiction shall be exercised. In addition to this, it is provided in section 6(6)(a) thereof that the judicial powers of the Court:

 

(a)   shall extend, notwithstanding anything to the contrary in this Constitution, to all the inherent powers and sanctions of a court of law. (Italics mine).

 

The first point I must observe is that section 6(6)(a) confers inherent power and sanctions whereas section 219 confers jurisdiction. What is the relationship or difference between the two? I shall deal with this critical question later.

 

Part of the argument of Chief Fawehinmi is that on grounds of equity and in order to avert injustice, the Court of Appeal was right to have invoked its inherent powers to have made the order for stay of proceedings on the facts and in the circumstances of this case.

 

It thus becomes necessary to put the questions:

What is the nature of inherent power of a Court of law?

When will it be rightly invoked?

 

In my judgment inherent jurisdiction or inherent power (as it is more commonly called) of Court is that which is not expressly spelt out by the Constitution, or in any statute or rule but which can, of necessity, be invoked by any court of record to supplement its express jurisdiction and powers. It is a most valuable adjunct to the express jurisdiction or powers conferred on our courts of record by the Constitution, any law, or rule of court. But, a necessary concomitant of the truism that every right of appeal is a creature of statute in that the limits of appellate power and authority are imposed by statute, charter or commission under which the court is constituted, is that an inherent power, nebulous as it usually is, does not extend the jurisdiction of a court of record. Rather it practically lubricates its statutory jurisdiction and makes it work. Lord Morris summarized the rationale of it all in Connelly V. D. P. P. (1964) A.C. 1254 at 1301 where he stated:

 

There can be no doubt that a Court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.

 

Courts, in proper cases, use their inherent jurisdiction to control persons, say, in cases of contempt of court; to control processes, such as when they strike out actions which are frivolous or vexatious or an abuse of process (see Palmer V Stooke & Anor. (1953)14 W.A.C.A. 333; and to control inferior courts and tribunals, say, when they order stay of proceedings. Cases in which the courts have rightly exercised their inherent powers are galore. See e.g. Reichel V Magrath 14 App. Cas. 665; Metropolitan Bank V Pooley 10 App. Cas. 210; Electrical Development Co. V A-G. for Ontario (1919) A.C. 687; Foifie V Seifah (1958) A.C. 59, at p.67. It is usual to call the jurisdiction expressly conferred by a Constitution or other enactment, statutory jurisdiction. Thus, the statutory constitutional jurisdiction of the Court of Appeal is conferred and delimited by sections 219 and 225 of the Constitution, and details of its operation spelt out in sections 220 to 224. In this case, the statutory constitutional jurisdiction of the Court is to hear the appeal filed.

 

Section 6(6)(a) deals with inherent powers (often called inherent jurisdiction) of courts of record. As for their nature, it is helpful to refer to an article by I.H. Jacob of the University College, London, titled "The Inherent Jurisdiction of the Court" in Volume 23 of Current Legal Problems 1970", which I believe throws some lucid light on the problem. He stated:

In many spheres of the administration of justice, the High Court of Justice in England exercises a jurisdiction which has the distinctive description of being called 'inherent'. The inherent jurisdiction of the court may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits. .......................................

 

To understand the nature of the inherent jurisdiction of the court, it is necessary to distinguish it first from the general jurisdiction of the court, and next from its statutory jurisdiction.

 

The term 'inherent jurisdiction of the Court' does not mean the same thing as 'the jurisdiction of the court' used without qualification or description: the two terms are not interchangeable, for the 'inherent' jurisdiction of the court is only a part or an aspect of its general jurisdiction. The general jurisdiction of the High Court as a superior court of records is, broadly speaking unrestricted and unlimited in all matters of substantive law, both civil and criminal, except in so far as that has been taken away in unequivocal terms by statutory enactment. The High Court is not subject to supervisory control by any other court except by due process of appeal, and it exercises the full plenitude of judicial power in all matters concerning the general administration of justice within its area. Its general jurisdiction thus includes the exercise of an inherent jurisdiction.

 

Moreover, the term 'inherent jurisdiction of the court' is not used in contra-distinction to the jurisdiction conferred on the court by statute. The contrast is not between the common law jurisdiction of the court on the one hand and its statutory jurisdiction on the other, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of Court, so long as it can do so without contravening any statutory provision. There is, nevertheless an important difference between the nature of the inherent jurisdiction of the court and its statutory jurisdiction. The source of the statutory jurisdiction of the court is of course the statute itself which will define the limits within which such jurisdiction is to be exercised, whereas the source of the inherent jurisdiction of the court is derived from its nature as a court of law, so that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition. (Italics mine).

 

It is from these points and principles that I shall now proceed to examine the contentions of counsel in this aspect of the appeal.

 

It is clear from what I have stated that the statutory jurisdiction of the Court of Appeal is wholly appellate. That jurisdiction is normally invoked by filing a notice of appeal within the stipulated time against the decision to be appealed against. That was what the respondent did against the ruling of Ilori, J., in the two alternative remedies of striking out the libel suit or staying further proceedings on it. Under its inherent power, it could grant an interim stay of proceedings. The complaint of Chief Williams, and I believe he is right, is that the order made by the Court of Appeal is substantive, and not interim, in nature. So, it has decided the main appeal still pending before the Court of Appeal.

 

On the other hand, the normal way of invoking the inherent jurisdiction or power of the court is by way of a motion. In this case, the respondent, resorted to this after he had filed a substantive appeal against the decision. The question, put simply, is this:

 

can the Court of Appeal before which the two proceedings, namely, appellate proceedings and proceeding by way of a motion came, in exercise of its power under the latter proceeding rightly usurp or frustrate or pre-empt the decision in the prior appellate proceeding?

 

 I do not think so. The simple reason is that the right to have the appeal heard and decided on its merits is a constitutional, or statutory right whereas that under the motion is an inherent right. An inherent power does not supercede the statutory jurisdiction of an appellate court. It rather aids it, lubricates it, and makes it work. So, it is not competent for the court before which the motion seeking to invoke its inherent powers is brought to there and then decide the issue still pending in the court on appeal. This is the essence of the decisions in such cases as - Egbe V Onogun (1972)1 All N.L.R. (Pt. 1)95, at p.98 & 99; Ojukwu v Governor of Lagos State (1986)3 N.W.L.R. (Pt.26) 39 at p.45; Holman Bros (Nig.) Ltd. v. Kigo (Nig.) Ltd. (1980) 8-11 S.C. 43, p.60. Even the dicta of my learned brother, Karibi Whyte, J.S.C. in the case of Adigun v Attorney-General of Oyo State (No.2) (1987) 2 N.W.L.R. (Pt.56) 197, at p.229, which the respondent relies upon makes it clear that the inherent power vested in the Court by section 6(6)(a) of the 1979 Constitution

can be invoked in the interest of justice to supplement the statutory jurisdiction where the exercise of such jurisdiction was likely to result in injustice. The inherent powers which a court is entitled to exercise merely because it is a court seems to me to be the exercise of an equitable jurisdiction which enables the Court to fulfill itself as a court and do substantial justice where necessary in the particular case.

 

Advisedly, the role of inherent jurisdiction is stated to be to supplement the statutory jurisdiction. A supplement is "something added to supply a deficiency; an auxiliary means, an aid" (See the Shorter Oxford Dictionary Vol. II at p.2196). It merely helps to supply the necessary operational apparatus to statutory jurisdiction. Importantly, my learned brother has not suggested it can be invoked to derogate from the exercise of the court's statutory jurisdiction. It is merely an adjunct and an aid to statutory jurisdiction and ought not destroy it or pre-empt it. That is the material point here. I must point out that what is of the essence of Chief William's submissions is the vires of the Court of Appeal in the matter. He is saying that that inherent power which ought to be an aid to the exercise of statutory jurisdiction cannot be used to derogate from it. I believe he is right. It is after that fundamental issue of vires has been settled that the question whether, on the facts of the case' the application was rightly granted - a point on which Chief Fawehinmi addressed us at length could have fallen for consideration. I am of the clear view that that issue of vires of the Court of Appeal to grant the application for a stay of proceedings in terms of the order made in this case ought to be resolved against the respondent. Its inherent power to preserve the res on which Chief Fawehinmi has harped so much must be exercised in such a way that it does not pre-empt or abort its statutory jurisdiction to hear and determine appeals brought before it.

Chief Williams has also raised the point, rightly I hold, that mandamus to prosecute a murder charge cannot now be granted in Lagos State. As it is so, even the application to apply for mandamus which has been granted exparte is as good as a still-born child as the merit of the applicant's case is a material consideration for the grant of the order. I say no more about it.

 

It was mainly for the above reasons and the fuller reasons contained in the opinion of my learned brother, Karibi-Whyte, J.S.C., that I allowed the appeal.

 

 

Judgment delivered by

Craig. J.S.C.

 

On the 5th of December, 1988, this Court allowed the a peal herein and indicated that it would give its reasons for doing soon the 3rd of March, 1989. I now give my reasons for allowing the appeal. In this respect, I wish to say that I have read in draft the judgment of my learned brother, Karibi-Whyte, J.S.C., and I agree with his analysis of the facts and his conclusions.

 

This appeal has raised a matter of some considerable importance and it is for this reason that I have decided to make some contribution to what is contained in the lead judgment. In order to appreciate the real controversy between the parties, it is necessary to set out the facts of the case in their logical sequence.

 

On the 4th March, 1988, the appellant, Col. Akilu, sued the Respondent at the Ikeja High Court claiming a sum of N5,000,000.00 (Five Million Naira) as damages for the libel published by the Respondent. A Statement of Claim disclosing the alleged defamatory words was filed along with the Writ of Summons.

 

The Respondent entered a Conditional appearance to the Writ, and on the 21st March, 1988, he brought an application under Order 23 rule 4 of the High Court of Lagos State (Uniform Civil Procedure) Rules for an order to strike out the Suit on the ground that it is an abuse of the process of Court: the details of the abuse were that:

 

(a)  The Suit violates the right of the Defendant/Applicant as a Private Prosecutor under Section 342 of the Criminal Procedure Law of Lagos State, Cap 32, as interpreted by The Supreme Court in the case of Chief Gani Fawehinmi v Col. Halilu Akilu and Lt. Col. A.K. Togun in Appeal No. S.C. 43/1987 (Reported in (1987) 4 N.W.L.R. (Part 67) 797).

 

(b)   The Suit violates section 36 of the 1979 Constitution and derogates from section 21 of the said Constitution.

 

(c)   Even if (which is denied) all the allegations contained in the Statement of Claim are admitted for the purpose of this application, the Plaintiff's action will still constitute an abuse of the process of the Court.

 

ALTERNATIVELY

 

An order staying proceedings or further proceedings in this case pending the final determination of Suit No. M/87/88 (of which the "Words Complained Of" formed a part, and instituted, pursuant to Section 342 of the Criminal Procedure Law of Lagos State. Cap. 32) and any Criminal Proceeding that may be commenced thereupon against the Plaintiff/Respondent in this case for conspiracy to murder and murder of Dele Giwa.

 

The Suit is oppressive, vexatious and Intimidating and it Constitutes an abuse of the process of Court.

 

In the accompanying affidavit, the Respondent swore to these pertinent paragraphs:

 

22.   That the words complained of in this case as being libelous of the Plaintiff were extracted from the Information submitted to the Attorney-General of Lagos State by me on the 24th March, 1988, which formed the basis of my Application for an Order of Mandamus against the Attorney-General of Lagos State in Suit NO.M/87/88.

 

23.    That if my application for an order of Mandamus Against the Attorney-General of Lagos State succeeds, I am willing, able and ready to prosecute Col. Halilu Akilu and Lt. Col. A.K. Togun for conspiracy to murder and murder of Mr. Dele Giwa or in the alternative the Attorney-General of Lagos State will have to prosecute them at public instance for the said offences.

 

24.   That I verily believe that this suit was brought by the Plaintiff in very bad faith in order to obtain in advance all the evidence that I will have to use against the Plaintiff should Criminal Prosecution be commenced against him for Conspiracy to murder and murder of Mr. Dele Giwa.

 

He also attached, as Exhibits, various comprehensive documents, statements, judgments and/or Rulings of several Courts, Notices of appeal etc. which together came to more than 200 pages.

The application, which for ease of reference, I shall call Motion No.1, came before lIon, J., and after hearing arguments from Counsel, the learned Judge in a considered Ruling, delivered on 6th May, 1988, refused both prayers and dismissed the Motion. In particular, the learned Judge held:

 

I have indicated above that this suit raises a serious legal issue as to whether publishing an information prepared in pursuance of Section 342(a) of the Criminal Procedure Law of Lagos State BEFORE the information is filed in court can amount to libel of the person accused in the information. In my view, a suit which raises such an issue is not an abuse of process.

 

My judgment is that this suit does not violate the applicant's statutory rights both under Sections 21 and 36 of the Constitution and Section 343 of the Criminal Procedure Law. Cap. 32. Laws of the Lagos State. It is also not an abuse of the process of this court. This application fails and is hereby dismissed.

 

The Respondent was dissatisfied with that Ruling and he promptly appealed against it to the Court of Appeal. That appeal was filed on 7th May, 1988 and is still pending before the lower court. On that same day. the Respondent filed another Motion, (Motion No.2) in which he asked for an Order:

 

(1)   Granting leave to appeal on grounds of mixed law and facts, and

(2)   Staying further proceedings in this case pending the hearing and final determination of the appeal lodged by the Applicant against the Ruling of this Hon. Court dated 6th May. 1988.

 

The Appellant did not oppose the first prayer and it was granted. The second prayer was vehemently opposed, and in another considered Ruling, delivered on 3rd June. 1988, lIori, J., refused to grant a stay of proceedings and the application was accordingly dismissed. There has been no appeal against that Ruling and nothing more need be said about it.

 

But five days after the Ruling of Ilori. J. (ie., on 8th June, 1988) the Respondent filed Motion No.3, before the Court of Appeal for an order:

 

Staying further proceedings in Suit N0.ID/312/88 pending the hearing and final determination of the appeal lodged by the Appellant/Applicant herein against the Ruling of Hon. Justice S.O. lIori dated 6th May. 1988.

 

The Motion was verified by an affidavit of sixteen (16) paragraphs, and in paragraphs 12 - 15 he gave the following reasons for asking for a stay of proceedings:

 

12.   That consequent upon the refusal to grant a stay of Proceedings as stated above, I make this application to the Court of Appeal.

 

13.   That the Plaintiff/Respondent is the Deputy Director of State Security Service and therefore a person in authority whom I verily believe will interfere with witnesses that might be called by me for the proof of his suit of the alleged offences of murder and conspiracy to murder if the civil suit were allowed to proceed to trial before suit No. M/87/88 and any criminal proceeding that may result therefrom.

 

14.   That I verily believe that if this application for stay of proceedings pending appeal to this Honourable Court is not granted by this Honourable Court, the appeal would be rendered ineffective in that the High Court would be at liberty to proceed with the hearing and determination of the Civil Suit and if the appeal succeeds after such hearing and determination of the Civil Suit by the High Court, the success of the appeal in the Court of Appeal would be rendered nugatory.

 

15.   That the grounds of appeal filed in this appeal raise substantial issues of law.

 

At this stage, I must observe that the Records of Appeal did not contain any counter-affidavit, and I can only presume that none was filed. The Record also did not contain the Brief of arguments of Counsel and their oral addresses before the Court of Appeal other than what was referred to in the judgment of the Court.

 

However, the lower Court delivered a considered Ruling on the 15th September, 1988, in which it unanimously stayed the proceedings in the libel suit "pending the hearing and final determination of the appeal lodged by the applicant."

That Ruling is the subject of the appeal before this Court. Altogether 11 grounds of appeal have been filed and I need not repeat them as they have been fully set out in the lead judgment.

 

Before I go on to consider the grounds of appeal, I must quickly mention that on the 15th June, 1988, the Respondent filed yet another Motion - (Motion No.4) before the Court of Appeal. This time the application was in respect of his pending appeal and the prayer sought was for:

 

The Appellant to compile the Record of Appeal in this case and treating the bundle of documents already compiled by the Appellant and annexed hereto as Exhibit GF as the Record of Appeal in this case.

 

The Court's ruling on that Motion was not exhibited, but at page 3 of the Appellant's Brief of Arguments, it was stated that the Motion was granted

with liberty to the Plaintiff to file any other document he may wish to file.

 

In the event, the Respondent filed papers covering 236 pages of the Record of Appeal. (See pages 5-241 of Vol.2 of the Record). As previously stated, these voluminous documents were intended for use in the appeal which is still pending before the Court of Appeal, and I therefore need not dwell on them.

 

I now return to a consideration of the grounds of appeal. The Appellant's Counsel has set out 9 (nine) questions for determination but the Respondent disagrees with him and has formulated four (4) issues for consideration. I shall return to these presently.

 

The main point in this appeal is whether the lower Court was right to have granted the Respondent a stay of proceedings pending the hearing of his appeal. The general principle regulating the granting of a stay of proceedings are too well-known. It is this:

that the Court recognises that the applicant has an undoubted right of appeal and it would see to it that the appeal if successful is not rendered nugatory. See Kigo V Holman (1980)5-7 S.C. 60; Government of Lagos State V Ojukwu (1986)1 NWLR (Pt.26) 621.

 

However, the Courts have stated that the onus is on the applicant to show special reasons why the Court should hold up the hands of the other party. Some of these special reasons as given in the case of Vaswani Trading Co. V Savalakh & Co. (1972)12 S.C. 77 at 82, are that:

 

1.     The subject matter of the suit may be destroyed if a stay is not granted, or a situation of complete helplessness may be foisted on the appellate Court, OR

 

2.     The order or orders of the Court of Appeal may be rendered nugatory or useless, OR

 

3.      If the appeal succeeds, it may be difficult to return the parties to the status quo.

 

See also Okafor V Nnaife (1987) 4 NWLR (Pt.64) 129.

 

Let us now examine the reasons given by the Respondent in asking for a stay in the lower Court. These are contained in paragraphs 12-15 of the affidavit in support of his Motion - quoted above. They are:

 

1.     That the High Court has refused his application for a stay.

 

2.     That the Plaintiff in the suit, Col. Akilu, is a Director of State Security Service and the Applicant verily believes that Col. Akilu will interfere with the witnesses for the Defence.

 

3.     That if a stay is not granted the High Court would proceed with the hearing of the suit, and if the appeal subsequently succeeds, G the success will be rendered nugatory.

 

4.     That the grounds of appeal filed raised substantial issues of law. Now, how did the Court of Appeal deal with these "special" reasons?

 

Reason No.1 appears to be a statement of fact and in my view does not need any comment. But the lower Court seemed to have considered the remaining three grounds together - in particular it dealt extensively on whether or not the Respondent has a good case on his appeal. Chief Rotimi Williams, S.A.N., has sharply criticised several of the passages in the Ruling of Akpata, J.C.A. who read the lead Ruling. (Babalakin and Awogu, JJ.C.A. concurring), and in 8 of his grounds of appeal (grounds 1, 3-8 and 10) Counsel complained that in giving a Ruling on a Motion for stay, the learned Justice appeared to have decided the appeal pending before the lower court without hearing the parties on the merits of the appeal. Chief Williams referred us to the objectionable passages in the said Ruling and some of these are as follows:

 

While I do not consider it vexatious, and it is not the issue now, for the respondent to institute his action to obtain relief in respect of the same subject-matter raised by the applicant in the criminal proceeding already initiated, I find it highly undesirable and unethical that the civil action should be allowed to take off while the criminal proceeding which was first in time is halted. It is immaterial that the criminal proceeding was stayed by another Judge.

 

The Mandamus proceedings is an important statutory legal exercise that should be embarked upon by an individual to initiate criminal proceedings. The step taken by the Applicant has crystallized into a criminal proceeding which takes precedence over and above a subsequent civil action based on the same or substantially the same subject-matter. 

 

I hold the view that where a citizen has evinced an intention to have another prosecuted for a felonious act by proceeding under Section 342, and that another subsequently institutes a civil action against the citizen on the same or substantially the same cause of action, the civil action should be stayed pending the out come of the criminal proceedings. 

 

In my view, to allow the civil action of the respondent to proceed in the circumstances of this case will be most unjust and inequitable. It would be a dangerous legal precedent which I think will offend not only minds learned in the law but also the minds of honest and right thinking laymen. It would amount to the Court granting a standing invitation to any one accused, rightly or wrongly, of a crime to opt for a civil action against his accuser, while at his behest, the criminal proceeding initiated against him is stayed. It is not right. It is odd. The criminal proceeding should be allowed to run itself out or run its full course before the civil action can justifiably be entertained.

 

An objective appraisal of those passages shows that the remarks of the learned Justice had gone beyond a Ruling on a Motion for stay of proceedings. The Ruling appeared to have dealt with several matters which would be raised at the hearing of the substantive appeal.

 

For instance, lIori, J., in his Ruling stated categorically that a Mandamus proceeding is not a criminal case and Chief Fawehinmi has appealed against that finding - See ground 3 of the Notice of Appeal. But in his ruling, Akpata, J.C.A. held the view that

The step taken by the Applicant has crystallized into a criminal proceeding which takes precedence over and above a subsequent civil action ….

 

Again, in the trial Court, Chief Fawehinmi had contended that the libel action was vexatious and should be stayed, but Ilori. J., held that it was not vexatious and refused to grant a stay. In his Ruling Akpata, J.C.A. decided that the libel action was not vexatious. This is what he said:

While I do not consider it vexatious, and it is not the issue now, for the Respondent to institute his action to obtain relief in respect of the same subject-matter raised by the applicant in the criminal proceeding already initiated, I find it highly undesirable and unethical that the civil action should be allowed to take off while the criminal proceeding which was first in time is halted.

 

In my view, the question whether or not the libel action is vexatious, is a live issue in the pending appeal. (See Ground 4 of Chief Fawehinmi's Notice of Appeal) and Chief Williams was right to complain that the substantive appeal seemed to have been decided without giving the parties a hearing. In the case of Igboho Local Government V Boundary Settlement Commission (1988)1 N.W.L.R. (Pt.69) 189 at 201, where a similar situation occurred, this Court held that the lower Court erred in law to have determined a substantive application for certiorari at the hearing of a Motion for leave to apply for the order of certiorari.

 

In the instant appeal, it seems to me that a decision on the substantive appeal would have disposed of the Motion for stay pending the appeal. In those circumstances, it would have been neater and tidier, if the Court had invited the parties to argue the appeal on the Record of Appeal which was then before it.

 

In respect of the other grounds of appeal, it is enough to say that for the reasons given by my learned brother, Karibi-Whyte, J.S.C., I agree that the prayer for stay of proceedings pending the appeal should have been refused and it is accordingly refused.

 

Before concluding this judgment, I should like to make reference to a minor point raised by the Respondent in his Brief of Arguments. This relates to issue No.1 formulated by Chief Fawehinmi. In developing this issue, the Respondent urged that the whole application for stay should be considered from the view point of the "common man". At pages 18-22 of his Brief, he sets out all the cases which he had instituted against the Appellant in his attempt to prosecute the Appellant for the murder of Dele Giwa. Altogether, he listed about eight substantive suits (excluding several subsidiary applications) which have been brought before the High Courts, the Court of Appeal and the Supreme Court. The Respondent then submitted at page 22 of the Brief that:

a reasonable man following the trends in these cases will want to know why the appeal of the Defendant should not be determined before the Plaintiff's action proceeds to trial because if the appeal succeeds then the plaintiff's action will definitely either be struck out or abide the result of the criminal proceedings.

 

In his oral address to this Court, Chief Fawehinmi again asked the rhetorical question:

What would the ordinary man in the street think if the Court allowed the Appellant to go on with his libel case whilst a criminal case is pending against him?

 

The obvious answer to that question is that a decision on the various aspects of this appeal does not rest on the view of the "common man" but on the legal interpretation of the Nigerian Constitution and other Laws of the Nation. However,. it must be stated that if Chief Fawehinmi's argument represents one view of the common man, the other side of the coin should also be considered. Indeed, other common men are entitled to ask why the prosecution of a defendant for a crime should have generated so much relentless litigation in the Law Courts; and, if the facts are so clear, why has it been so difficult to prosecute?

 

In the case of Atanda Attorney-General (1965) N.M.L.R. 225 at page 232, Bairamian, J.S.C., gave this advice to all prosecutors:

We have to remind prosecuting Counsel that they ought to look on themselves not as advocates but as ministers of justice, and their task is not to secure convictions, but to help in the administration of justice. See - R V Banks (1916)2 K.B. 621.

 

Views similar to this were expressed by Ademola, C.J.N. in Chief Odofin Bello V The State (1966)1 All N.L.R. 223 at 232.

 

Whilst one appreciates the efforts of the Respondent to carry out a public duty, my view is that the prosecution of criminal offenders should be conducted within respectable limits. It should be borne in mind that relentless litigation offends against the norms of Society, and consequently, beclouds the good intentions of a prosecutor; in the end, such prosecution does little to advance the cause of justice.

 

It was for the reasons set out above as well as for the fuller ones contained in the lead judgment, that I allowed this appeal on 5th December, 1988. I hereby set aside the Ruling of the lower Court, and order that the Respondent's Motion for a stay of proceedings be dismissed.

 

 

Counsel

Chief F.R.A. Williams. S.A.N

with Dr. H. Kusamotu, Mrs. O.M. Ayeni, Mr. Ladi Williams and Mr. O. Williams

 

For the Appellants

Chief Gani Fawehinmi in person

 

Respondent