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.
