Col. Halilu Akilu v Chief Gani Fawehinmi (SC. 215/1988 & SC. 216/1988) [1989] NGSC 2 (5 March 1989)


In The Supreme Court of Nigeria

On Monday, the 6th day of March, 1989

SC. 215/1988 & SC. 216/1988

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             ......             ACCUSED

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

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