Akilu V Fawehinmi No 2

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

On the 5^th 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 2^nd March, 1988.

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.

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:

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

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.

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

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.

(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.

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

(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.

(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?

(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.

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.

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

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 -

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.

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.

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.

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.