Chief Gani Fawehinmi V. Col. Halilu Akilu (1988)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.C.A.

Although this case raises the simple question of the principles that should guide the Court in granting or refusing an application for a stay of proceedings, it has brought to sharp focus the recognition of the fact that the facts of one case are invariably different from those of any other and that principles and rules should not be applied mechanically but objectively to complex or peculiar situations.

Although the facts of this case tend to be confusing, because of one application here and an appeal there in the same or similar proceedings, they are indeed simple. The Appellant/Applicant, Chief Gani Fawehinmi, as a private citizen, prepared an information pursuant to Section 342 of the Criminal Procedure Law Cap. 32 Laws of Lagos State, being a preliminary exercise to enable the Attorney-General of Lagos State or himself as a private citizen, if the Attorney-General declines, to prosecute the Respondent. Col. Halilu Akilu and Lt. Col. A. K. Togun for the murder of Dele Giwa. The applicant was granted leave by Agoro, J. in Suit M/87/88 to apply for an Order of Mandamus compelling the Attorney-General to exercise her discretion whether or not to prosecute Col. Halilu Akilu and Lt. Col. A. K. D Togun 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 the said Attorney-General of Lagos State on Wednesday 24th February 1988 “pursuant to Section 342 of the Criminal Procedure Law.”

On the same day, 2/3/88, when leave to apply for Order of Mandamus was granted, the Respondent and Lt. Col. A. K. Togun were made parties to the Mandamus proceedings on the application of their Counsel, Chief Williams, SAN. The following day the Respondent applied for leave to appeal against the ruling of the learned trial Judge Agora, J. granting leave to the Applicant to apply for an Order of Mandamus.

In consequent of an allegation that the Applicant distributed copies of the information to Publishers of Newspapers and Magazines, the Respondent by a writ of summons and a statement of claim, both dated 4th March, 1988, commenced an action against the Applicant claiming the sum of N5 million being damages for libel. After entering a conditional appearance to the Respondent’s civil action, the applicant filed a motion dated 21st March, 1988, for an order striking out the civil action for libel for lack of competence of the respondent’s action and sought in the alternative a stay of proceedings in the case pending (1) the final determination of Suit No. M/87/88 (of which the words complained of in the information said to have been published to publishers of daily newspapers formed a part) instituted pursuant to Section 342 of the Criminal Procedure Law; and (2) any Criminal Proceedings that may be commenced against the Respondent for conspiracy to murder and murder of Dele Giwa.

In his ruling dated 6th May, 1988 Ilori, J. refused the two alternative prayers. The applicant then appealed against the said ruling and applied to the High Court for a Stay of Proceedings pending the hearing and final determination of the appeal lodged against the ruling. On 23rd June, 1988, the learned trial Judge refused the application. The applicant therefore filed a similar application for a Stay of Proceedings in this Court, the subject-matter of this ruling.

The facts of this case which have been stated above have been gleaned from the affidavit in support of the application and the relevant rulings attached to the affidavit as Exhibits. Although the respondent filed no counter-affidavit, Chief Williams, SAN, learned Counsel for the respondent opposed the application strenuously. It is to be noted that after the respondent had filed his action for libel he sought leave to appeal against the ruling granting the applicant leave to apply for an Order of Mandamus. He was granted leave to appeal on 15/4/88 and an Order was made staying the proceedings in Suit No. M/87/88 seeking to get the respondent prosecuted for murder.

In effect, while Agoro, J. granted the present respondent a stay of proceedings in the Mandamus application pending the hearing and determination of the respondent’s appeal, Ilori, J. refused the application of the applicant to stay proceedings in the defamation action. The appeal of the applicant which is still pending in this Court is, as I have earlier stated against refusal of Ilori, J. to strike out Suit No. ID/312/88 on the ground that it was an abuse of Court process and therefore incompetent. Six grounds of appeal are filed. Three of them complain of error in Law, while the other three are based on both errors in Law and misdirection on the facts. It is unnecessary to reproduce them in this ruling. Suffice it to say that they raise substantial points on Law. Indeed, Chief Williams has not questioned the fact that they raise serious legal issues.

In view of the extremely careful and enlightening arguments which have been addressed to us in this matter by both sides, I find no difficulty in resolving this application. 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. Sodeinde v. Registered Trustees of the Ahmadiyya Movement-In-Islam (1980) 1-2 SC.163 and (2) Kilgo

(Nigeria) Limited v. Holman Bros. (Nigeria) Limited (1980) 5-7 Sc. 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 the Court to see that an appeal, if successful, is not in vain.

In the case of Nigeria Airways v. W. O. Gbajumo Appeal No. CA/L/171/87 delivered on 11th June, 1987 (unreported), to which Chief Williams has drawn our attention, this Court, per Kolawole, J.C.A. at page 7 of the cyclostyled judgment, adopted the observation of the learned Authors of Halsbury’s Laws of England 4th Edition Vol. 37 paragraph 442 at page 330 that:

“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.”

There is also the case of Shackleton v. Swift (1913) 2 KB 309 at page 312 where Vaughan Williams, L.J. put the matter thus: