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COURT OF APPEAL
CA/L/197M/88 AND CA/L/198M/88
THURSDAY, 1ST JUNE, 1989
BEFORE THEIR LORDSHIPS:
MAMMAN NASIR, P. C. A. (Presided and Read the Lead Judgment)
JOSEPH DIEKOLA OGUNDERE, J.C.A.
EMMANUEL OBIOMA OGWUEGBU, J.C.A.
CHIEF GANI FAWEHINMI
COLONEL HALILU AKILU
CHIEF GANI FAWEHINMI
L.T. COLONEL A.K. TOGUN
Chief Gani Fawehinmi – in person
Chief F.R.A. Williams, SAN (with him, Ladi Williams, Yomi Williams, Jnr. and Mike Ikwuagwu) – for the Respondents
CONSTITUTIONAL LAW – Source and powers of Courts
CRIMINAL LAW AND PROCEDURE – Limitation of rights of a private prosecutor
PRACTICE AND PROCEDURE – APPEAL – Principles for the exercise of discretion in applications for stay of proceedings – Whether Court of Appeal can pre-empt matters pending before the Supreme Court
CHILDREN AND WOMEN LAW: Women in authority – Attorney General refuses to prosecute
NASIR, P.C.A. (Delivering the Lead Judgment):
In order to understand this appeal and the surrounding circumstances I consider it important to give fully the background facts to this and the other appeals pending in this court all arising out of the same facts. It is also important to understand the actual appeal being considered and highly desirable that I limit my decision to the issues raised in this particular appeal. The background facts are taken from the written Briefs filed by learned counsel and the facts stated in Fawehinmi v Akilu (1987) 4 N. W.L.R. (Part 67) 797. Even though the facts are useful in understanding the issues which developed, these facts are not presented here as proved facts.
The facts arose from the death of Mr. Dele Giwa who was alleged to have been killed by a parcel bomb on 19th October, 1986. Mr. Dele Giwa was the Editor-In-Chief of the Newswatch Magazine. He was said to be the friend and client of the defendant/appellant in this Appeal, Chief Gani Fawehinmi. The defendant/appellant investigated the cause of the death of Mr. Dele Giwa and upon facts at his disposal he prepared a two count information charging:
(i) Colonel Halilu Akilu, Director of Military Intelligence, and (ii) Lt-Colonel A.K. Togun, Deputy Director of the State Security Service.
with conspiracy to murder and murder of Mr. Dele Giwa. On the 3rd November, 1986, Chief Fawehinmi submitted to the then Director of Public Prosecution, Mr. J. A. Oduneye, the said information and proof of evidence with a request:
“The law says that before I prosecute as a Private Prosecutor of the accused persons, I should first give you the opportunity to decline to prosecute them. I will be in your Office before the end of official business on Wednesday the 5th November, 1986 to take the documents if you decline prosecution to enable me commence the private prosecution of the accused persons in the High Court of Ikeja on Thursday, the 6th of November, 1986.” (See Fawehinmi v Akilu (1987) 4 N.W.L.R. (Part 67) 797 at 800)
On the 6th November, 1986, Chief Fawehinmi met the D.P.P. and as there was no immediate compliance with his “orders,” (or are they requests?) the learned Chief on 7th November, 1986, filed an application in the High Court of Lagos State for leave to apply for an Order of Mandamus to compel the D.P.P. to decide whether or not to prosecute or alternatively to endorse the said Information that he had seen the Information but did not intend to prosecute at public instance.
The above ex-parte application for leave, dated 7th November, 1986, (Suit M/513/86) was heard by Candido Ademola Johnson, C. J., who dismissed the application on the 19th November, 1986 on the main ground that the application was premature and hasty. Chief Fawehinmi being dissatisfied with the ruling appealed to the Court of Appeal (Appeal No.CA/LJ273/86) on the grounds that:
(a) A prima facie case for the grant of the application has been made out by the applicant;
(b) the Court was wrong to hold that although the Director of Public Prosecution had a discretion he could exercise the discretion at any time convenient to him;
(c) the court was wrong to hold that there must be a refusal before an order of mandamus could issue;
(d) the court was wrong to hold that the timing of the application was hasty and premature; and
(e) the court was wrong to determine the entire application for mandamus while determining the application for leave to issue an order for mandamus.
(See (1987) 4 N.W.L.R. (Part 67) 797 at 818B to H)
At the hearing of the above appeal the issue of locus standi was raised, and with the leave of the court argued by the parties. The Court of Appeal in its judgment dismissed the appeal on the grounds that:
(a) the appellant/applicant had no locus standi;
(b) the trial court was right to refuse the application on the issue that the D.P.P. has a discretion and he had not been given time within which to exercise the discretion.
The appellant/applicant appealed further to the Supreme Court. This appeal (SC.43/1987) was on the following grounds:
(a) The Court of Appeal erred in law in striking out the appeal on the ground that the appellant had no locus standi.
(b) The Court of Appeal misdirected itself in law and came to the wrong conclusion when the Court held that a private person, who took out mandamus to compel a public functionary to prosecute or to give himself a fiat to prosecute must first show that he has a locus standi.
(c) The Court of Appeal misdirected itself in law and came to the wrong conclusion with respect to the locus standi of the appellant by holding that no personal and private interest of the appellant had been shown.
(d) The Court of Appeal also erred in dismissing the appeal by confirming the refusal of the High Court Judge to grant leave to the appellant on the ground that the respondent, D.P.P., had not refused to do his duty under section 342 of the Criminal Procedure Law; and
(e) The Court of Appeal also erred in law in considering and determining the merits of the substantive application for mandamus. In considering the above grounds of appeal the Supreme Court, per Obaseki, J.S.C., reading the lead judgment, stated the issues for consideration as follows:
“It is therefore apparent from the grounds of appeal that only _ two issues earlier set out in the opening paragraphs of this judgment were raised. These are:
(1) the issue of locus standi; and
(2) the issue of quantum of proof of materials to support the application for leave.”
See Fawehinmi v Col. H. Akilu and another: In re Oduneye, D.P.P., (1987) 4 N. W.L.R. (Pt.67) 797 820F to 821F.
The Supreme Court, on 18th December, 1987, in a considered judgment allowed the appeal (by a majority of six to one). In the lead judgment, Obaseki, J.S.C., stated as follows:
“On the two main issues raised in this appeal, I find for the appellant. The appeal succeeds and is allowed. The decisions of the Court of Appeal and the High Court are hereby set aside and in their stead, it is ordered that leave be granted to apply for an order of mandamus. Leave is hereby granted.
The application or originating motion on notice is to be filed and served in the High Court and the matter is remitted and shall be tried or heard by another Judge to whom it shall be assigned by the learned Chief Judge of Lagos State.”
Before following this case back to the High Court it is important to note the judgment of Bello, C.J.N., (at pages 834G to 835A-G) where a very clear and succinct statement of the statutory requirement has been made as to what the law was under sections 340 to 343 of the CPL at that time.
As a result of the Supreme Court decision the application for leave to issue an Order of Mandamus was heard by Olusola Thomas, J., who delivered his ruling on 21st January, 1988 (Suit No. M/513/88) directing “Mr. J.A. Oduneye, the former Director of Public Prosecutions (now Solicitor-General) of Lagos State to exercise his discretion whether or not to prosecute Col. HALILU AKILU and Lt-Col. A. K. TOGUN for murder of late Mr. DELE GIWA and if he declines to prosecute, he do endorse a certificate to the effect on the information submitted to him by the applicant on Monday, the 3rd of November, 1986.”
As a result of the above Order of Mandamus, the Solicitor-General, Mr. J.A. Oduneye, on behalf of the Attorney-General of Lagos State filed a Notice dated 25th January, 1988, in court. The main body of the Notice reads as follows:-
“In pursuance to order of court made by Hon. Justice Olusola Thomas on 21st day of January, 1988, in respect of the above suit, the Hon. Attorney-General for Lagos State has decided to prosecute the two accused persons mentioned above on the information received by me from Chief Gani Fawehinmi.
DATED THIS 25TH DAY OF JANUARY, 1988.”
A copy of the above decision of the Attorney-General was sent to Chief Gani Fawehinmi in reply to his letter No. GFC/M/03 dated 3rd November, 1986.
In pursuance of the above Notice of Intention to prosecute, the Director of Public Prosecutions addressed a letter to the Assistant Chief Registrar (Litigation) on 16th February, 1988, the main body of which reads as follows:
“Pursuant to section 191(1)(a) of the Constitution of the Federal Republic of Nigeria, 1979,1 propose to file the attached information in the Criminal Division of the High Court of Lagos State, Ikeja. Please cause the information to be filed and please find attached herewith 3 copies of both the information and proofs of evidence one each of which is for service on the Accused persons.”
The Information referred to above, in its two counts, charged Col. H. Akilu and Lt. Col. A. K. Togun with the offences of Conspiracy to murder and murder of Mr. Dele Giwa contrary to sections 324 and 319(1) of the Criminal Code respectively.
The Assistant Chief Registrar (Litigation) complied with the request of the Director of Public Prosecutions. Consequent upon the Information being filed the case was brought before E.F. Longe, J., (as Suit No. IDAC/88) for hearing. At the beginning of the hearing Chief F.R.A. Williams, learned. counsel of the two accused officers, raised a preliminary objection. It is important to note that the two accused officers were not in court. It is equally important to state that Chief Gani Fawehinmi was not the prosecutor but at the best was only a witness. The application on behalf of the two applicants by Chief Williams was:
“for an order pursuant to:
(a) the inherent jurisdiction of this Honourable Court and section 6(6)(a) of the Constitution of the Federal Republic of Nigeria, 1979, and (b) sections 340(3) and 363 of the Criminal Procedure Law, Cap 32, that the information preferred against them (the applicants) be quashed on the grounds that (1) neither of the two offences alleged therein is disclosed by the statements and/or proofs of evidence filed herein and (ii) the said information is, in the premises, an abuse of the process of this Honourable Court.”
The above application which was rightly taken as preliminary issue, was argued extensively before the learned trial Judge, E.F. Longe, J. At the end of the hearing the learned trial Judge in his ruling on 23rd January, 1988, found in favour of the applicants as follows:
“Having said all this let me conclude that the finding of this court is that the information alleging two offences against the applicants lack merit both in form and in substance. The information has not been properly filed and the facts disclosed in the proof of evidence directly or indirectly do not link the applicants in any way to the offences. It will be an abuse of the Process of Court to call them for trial. Order accordingly made that the information is quashed.”
Thus ended Suit No. ID/4C/88.
Chief Gani Fawehinmi, as earlier stated, was not a party to the above Suit. The Suit however arose from his investigation and his desire to prosecute the two officers. The Hon. Attorney-General however decided to prosecute and by so doing virtually shut Chief Fawehinmi out. But the learned Chief could not easily be shut out. Being dissatisfied with the decision of Longe, J., and apparently because he could not appeal as a party, Chief Fawehinmi filed a Civil Suit No. LD/329/88, on the 24th February, 1988 against the Attorney-General of Lagos State and the two army officers seeking two declaratory reliefs as follows:
“1. A DECLARATION that the proceedings before the Honourable Justice E.F. LONGE of the High Court of Lagos State Ikeja Judicial Division in Charge number ID/4C/88: The State v Colonel Halilu Akilu and Lt. Colonel A. K. Togun are a nullity.
Thus the end of Suit No. ID/4C/88 has not been reached after all. The effect of the fresh civil suit No. LD/329/88 if successful is to quash the proceedings and decision of Longe, J., in suit No. ID/4C/88 and leave the information filed by the Attorney-General intact ready for another trial.
On the 1st August 1988, V.B.A. Famakinwa, J., gave his ruling on the above declaratory suit and dismissed the suit in its entirety. Chief Fawehinmi being dissatisfied with the ruling appealed to this court (Appeal No. CA/L/297/88).
An additional off-shoot from the decision of Longe, J., in ID/4C/88 delivered on 23rd January, 1988 came to light. It arose from the alleged comments made by Chief Gani Fawehinmi after the judgment was delivered. This was a criminal charge for contempt of court by Chief Gani Fawehinmi and others under section 133(9) of the Criminal Code of Lagos State, (Charge No. MIK/A/203/88) before Chief Magistrate G.A. Kelani, sitting at Ikeja. Chief Fawehinmi and another in opposition to the Charge filed an application Ex pane under the Fundamental Rights (Enforcement Procedure) Rules, 1979, for leave to apply for:
“(1) A Declaration that Criminal charge No. MIK/A/203/88 Commissioner of Police v. Chief Gani Fawehinmi (2) Najeem Jimoh (3) Tayo Tiwo pending before the third respondent herein is a violation of section 33(12) of the Constitution of the Federal Republic of Nigeria, 1979 in that the two counts contained in the said ‘charge and which were preferred against the applicant are not known to any written law in Lagos State.
(2) A Declaration that the Criminal Charge No. MIK/A/203/88 Commissioner of Police v. (1) Chief Gam Fawehinmi (2) Najeem Jimoh (3) Tayo Tiwo and pending before the 3rd respondent herein is a violation of section 36 of the Constitution of the Federal Republic of Nigeria, 1979.
(3) An order quashing the said charge No. MIK/A/203/88 pending before the 3rd respondent.” (See pages 1 and 2 of the Record).
The above application was granted by A.B. Adeniji, J., on 29th March, 1988.
The parties were served and the application came up for hearing before A.B. Adeniji, J., on 13th April, 1988. On this date learned counsel for the applicants, Dr. Olu Onagoruwa, moved an application under section 259 of the Constitution of the Federal Republic of Nigeria, 1979, asking for “an order referring the questions contained in the Schedule annexed hereto to the Court of Appeal for Determination.” The said Schedule contained the Declarations asked for in the Ex parte Application for Enforcement of fundamental rights. The trial court refused the application for reference and the applicants appealed to this court (Appeal No. CA/L/166/88).
On the same 24th February, 1988, Chief Fawehinmi had other ideas of continuing his fight. He thought that he should start afresh. As a result of this new idea the learned Chief submitted to the Attorney-General, on 24th February, 1988, a fresh information charging the same Col. Halilu Akilu and Lt. Col. A.K. Togun with conspiracy to murder and murder of Mr. Dele Giwa requesting the said Attorney-General to exercise her discretion under section 342 of the Criminal Procedure Law as to whether or not to prosecute the two accused persons and if she declined to prosecute to endorse a certificate to that effect on the information.
The Honourable Attorney-General in a letter dated 26th February, 1988, addressed to Chief Fawehinmi declined to take any action on the ground that the learned Chief had instituted civil suit No. LD/329/88 (in which he prayed for a declaration that the ruling of E.F. Longe, J., was a nullity) and therefore no action could be taken on the new application as the matter was sub judice.
The learned Chief being dissatisfied with the reply of the Hon. Attorney-General again thought it fit to start another action. This time by filing on 29th February, 1988 an application, in suit No. M/87/88, for leave to apply for an Order of Mandamus against the Hon. Attorney-General to exercise her discretion whether or not to prosecute at public instance the same two accused persons or if she declined to prosecute to endorse a certificate to that effect on the information. This application ex parte was slated for hearing before I. O. Agoro, J., on 2nd March, 1988.
On the 2nd day of March, 1999, when the application came up for hearing, Chief F.R.A. Williams who appeared for Col. Halilu Akilu and Lt. Col. A.K. Togun urged the court to adjourn the hearing of the said Motion Ex parte so that the persons affected may be served with the Motion Ex Parte. The court refused Chief Williams’ application on the ground that it world be premature at the stage of seeking “leave of court” to allow the learned Senior Advocate to represent the two persons at the hearing of a Motion Ex Parte.
Being dissatisfied with the above ruling of I.O. Agoro, J., Chief Williams applied by Motion on Notice dated 3rd March, 1988, for leave to appeal against the ruling as follows:
“(i) for leave to appeal to the Court of Appeal from the decision given herein on Wednesday the 2nd day of March, 1988;
(ii) that further proceedings in this cause or matter be stayed pending the determination of the appeal filed against the aforesaid decision …”
The above application was opposed by Chief Fawehinmi. The learned D.P.P., Lagos State, who appeared for the Hon. Attorney-General of Lagos State, also supported the contention that the applicants had a right of appeal.
The trial court refused to grant any of the prayers requested by Chief Williams. Chief Williams appealed against the refusal for leave to appeal and for stay of proceedings. (Appeal No.CA/L/167/88)
The trial Judge, I.O. Agoro, J., on 2nd March, 1988, went on to consider the Motion Ex Parte and in the end granted leave to Chief Fawehinmi to apply for an Order of Mandamus against the Hon. Attorney-General as prayed for by the applicant.
Armed with the court order, Chief Fawehinmi served a copy of his application for an Order of Mandamus on Chief Williams. The application was fixed for argument on the 15th March, 1988. This however was not to be as on the said date Chief Williams raised preliminary objections to the hearing of the said Motion for the Order of Mandamus as stated in his Notice of Preliminary Objection dated 14th March, 1988. As this issue will crop up again in this and/or in other appeals arising out of the same application for leave to prosecute Col. H. Akilu and Lt. Col. A. K. Togun I consider it desirable to produce the Notice of Preliminary Objection:
TAKE NOTICE that at the hearing of the Motion on Notice filed by the applicant herein, counsel for the above-named Col. Halilu Akilu and Lt. Col. A. K. Togun intends to raise the following preliminary objections:
(i) the application for leave to apply for the order for mandamus as well as the substantive application for the same are an abuse of the process of the court because (among other reasons) the above-named “prosecutor/applicant” having elected to treat the proceedings before LONGE, J., as a nullity, cannot be permitted thereafter to ask this court to act on the basis that the said proceedings have been regularly concluded so that the Attorney-General can be compelled by an order of mandamus to exercise her discretion whether or not to prosecute the accused persons and if she declines to prosecute, to endorse a certificate to that effect as required by law.
(ii) in the premises, the court ought not to entertain the application of the above-named “Prosecutor/Applicant” and ought to dismiss the said application or strike it out pursuant to its inherent jurisdiction.
(iii) further and in the alternative, the court ought to strikeout the application herein because no court in the land has jurisdiction to make an order compelling the Attorney-General of Lagos State to endorse an information charging the persons accused therein for the offence of murder or for conspiracy to commit the offence of murder so as to enable a private complainant like the “Prosecutor/Applicant” herein to sign and file such information.
Dated this 14th day of March, 1988.” (See page 135 of the Record)
The above notice was argued extensively by both counsel and the trial court delivered its ruling on 8th April, 1988. At the end of a well considered decision, Agoro, J., dismissed all the grounds advanced by Chief Williams. This ends, at least for now, the absorbing drama in respect of Order of Mandamus in relation to application for leave to prosecute the two army officers. It was only the end of a scene and the beginning of another.
While the application for an Order of Mandamus against the Hon. Attorney-General was in progress Col. Halilu Akilu and Lt. Col. A. K. Togun decided, for a change, to be “on the offensive.” Through their counsel, Chief F.R.A. Williams, each of them instituted a civil action on 4th March. 1988 (Suits Nos. ID/312/88 and ID/313/88 respectively) against Chief Gani Fawehinmi claiming in identical terms as follows:
“AND THE PLAINTIFF CLAIMS against the defendant the sum of x#5,000,000 (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.”
Both parties agreed that the decision in Suit No. ID/312/88 should apply to the sister case, Suit No. ID/313/88. Chief Fawehinmi after he was served with the writ and the statement of claim entered a conditional appearance.
The above Suit came before S.O. Ilori, J., and the preliminary objection filed by Chief Fawehinmi was fixed for hearing on 15th April, 1988. The preliminary objection is as follows:
“AN ORDER striking out the respondent’s suit on the ground that it is an abuse of the process of court and therefore incompetent or;
AN ORDER staying proceedings or further proceedings in the said Suit pending the final determination of Suit No. M/87/88 (of which the “words complained of” formed a part; and instituted pursuant to section 342 of the Criminal Procedure Law of Lagos State (Cap 32) and any Criminal Procedure that may be commenced thereupon against the plaintiff/respondent in this case for Conspiracy to murder and murder of DELE GIWA.”
The above Motion was extensively argued. On the 6th May, 1988, S. O. Ilori, J., delivered his ruling rejecting the prayers of the applicant. The applicant, Chief Fawehinmi, being dissatisfied with the ruling appealed to this court on 9th May, 1988. It is this appeal which is now before us for consideration. (Page 180-190 of Record)
To get the record complete it is pertinent to refer to the application dated 7th May, 1988 filed by Chief Fawehinmi before the High Court, Ilori, J., praying for stay of further proceedings in the libel Suit (ID/312/88) pending the determination by this court of the appeal against the ruling of Ilori. J., dated 6th May, 1988. (See (1989) 2 N. W.L.R. (Pt.102)122 at 158A). This application was intended to give the applicant a temporary stay of proceedings pending the determination by the Court of Appeal of the appeal filed on 9th May, 1988. This temporary stay was refused by the High Court. The applicant applied to this court for stay. The Appeal was heard by this Court and judgment was given in favour of the appellant, Chief Fawehinmi on 15th September, 1988 and an Order of stay of Proceedings in the High Court was given (See Chief Gani Fawehinmi v. Col. Halilu Akilu (1988) 4 N.W.L.R. (Pt.88) 367 at 379) by this court as follows:
“The application succeeds. Suit No. ID/312/88 Col. HaliluAkilu v. Chief Gani Fawehinmi is hereby stayed pending the hearing and final determination of the appeal lodged by the applicant Chief Gani Fawehinmi against the ruling of Hon. Justice S.O. Ilori, dated 6th May, 1988.”
Being dissatisfied with the above decision Col. Halilu Akilu appealed to the Supreme Court, in Apeal No. SC.215/1988 and SC. 216/1988 as consolidated. The Supreme Court gave its judgment on 5th December, 1988 and gave Reasons for judgment on 6th March, 1989 (reported as Col. Akilu v. Fawehinmi (No.2) (1989) 2 N.W.L.R. (Part 102) 122. This judgment considered and decided the rights of a private prosecutor in Lagos State. It also reversed the decision of the Court of Appeal in Chief Gani Fawehinmi v Cola Halilu Akilu (1988) 4 N. W. L. R. (Part 88) 367. The order for stay of proceedings as granted by the Court of Appeal was quashed. The Orders made by the Supreme Court in the lead judgment, per Karibi-Whyte, J.S.C., at page 176 of the Report (1989) 2 N.W.L.R. (Part 102) 122 are as follows:
”The conclusions I have reached in my judgment are that:
(a) The subject-matter of the action in the Suit No. M/87/88, the Mandamus proceedings, which is the application to compel the Attorney-General of Lagos State to exercise her discretion whether or not to prosecute the appellants ‘ for the offences of conspiracy to murder and the murder of Dele Giwa, is neither identical nor substantially similar to the subject-matter of the action in Suit No. ID/312/88, the libel proceedings against Chief Fawehinmi, which is an action for damages for libel contained in the publication distributed to daily newspapers and magazines alleging that the appellants had conspired to murder and murdered Dele Giwa, There is, therefore, no basis to stay proceedings in Suit No. ID/312/88 because an appeal in an interlocutory matter in Suit No. M187/88 was pending. The two actions can co-exist, and be tried independent of each other.
(b) Although the principles for the exercise of discretion in applications for stay of proceedings in actions before the court are not exhaustive, there are judicial decisions governing the exercise of discretion which it has always in the interest of justice, been invaluable to follow.
(c) Since the respondent has no legal right to institute proceedings to prosecute the appellants, the Mandamus proceedings ought not have constituted the basis for a determination whether the Suit No. ID/312/88 ought to be stayed. Even if there was a legal right to institute criminal proceedings, the issue of lack of identity of subject-matter in the two actions will preclude the granting of a stay of proceedings. All the grounds of appeal succeed.
I therefore will allow this appeal and set aside the judgment of the Court of Appeal. The ruling of Ilori, J., dated 6th May, 1988 dismissing the application of defendant/ respondent, seeking to strike out Suit No. ID/312/88 or in the alternative stay the proceedings therein till the Appeal in Suit No. M/87/88 was determined and any criminal proceedings consequent thereto for the prosecution of the appellants for conspiracy to murder and murder of Dele Giwa, is hereby restored.”
In view of the far-reaching effect of the above Supreme Court decision, Chief Gani Fawehinmi, on the 21st March, 1989, the day when this appeal was to be heard, filed an application of the same date asking for an Order of stay of proceedings in view of the Supreme Court decision in (1989) 2 N.W.L.R. (Part 102) 122. The application will be reproduced later. As would be expected Chief Williams on behalf of the respondent strongly opposed the application. After hearing both parties we considered that the best. solution was to hear the application and the appeal together.
We ruled as follows:
“Application dated 21st March, 1989 can be argued by the applicant and the order to be made by this court will be after hearing the whole appeal. If the Order of stay is granted then all other aspects of the appeal will be stayed pending the final determination by the Supreme Court of the Motion filed therein by Chief Fawehinmi.”
I shall therefore in the course of this judgment consider the merits and demerits of the application for stay. My decision on the application will determine whether the merits of the whole appeal will be considered.
There remains one aspect of these myriads of appeals which I ought to mention here not because this aspect is relevant to the appeal under consideration but in order to get the whole setting and the background facts complete. I warn myself that it is very easy to consider the merits of other pending appeals in considering this appeal or any of the sister appeals. Such consideration of merits of other appeal has happened in the earlier appeal. on stay of proceedings before this court (See (1988) 4 N.W.L.R. (Part 88) 367) and the Supreme Court was quick to point out “this error” in its judgment on 5th December, 1988 and reasons for judgment on 6th March, 1989. The Supreme Court itself went far beyond the issue of the temporary stay of proceedings and made extensive comments in the main appeal against the judgment of S.O. Ilori, J., delivered on 6th May, 1988. (See (1989) 2 N.W.L.R. (Part 102) 122). This decision of S.O. Bori, J., is the subject-matter of the appeal now before this court. I am of the opinion that there is no reason in law which can stop me from considering some aspects, even the merits, of other appeals in this judgment if such consideration is necessary and in the interest of justice in order to reach my decision in this appeal.
I have been compelled by the surrounding circumstances arising from the numerous appeals to take so much time to state the facts. I want every aspect of the appeal to be made clear in this particular judgment as I intend to use this judgment as part of my judgments in the other appeals heard by us between the 21st March, 1989 and 23rd March, 1989. For ease of reference the appeals heard and each of which will individually be considered on its own facts and merits are as follows:
(i) Appeal No. CA/L/197M/88 Chief Gani Fawehinmi v. Col. Halilu Akilu. (This goes together with Appeal No. CA/L/198M/88 Chief Gani Fawehinmi v Lt. Col A. K. Togun.
(ii) Appeal No. CA/L/167/88 Col. H. Akilu and anor. v. Chief Gani Fawehinmi & A. G. Lagos State.
(iii) Appeal No. CA/L/166/88 Chief Gani Fawehinmi v. A. G. Lagos State & 2 ors.
(iv) Appeal No. CA/L/297/88 Chief Gani Fawehinmi v. A.G. Lagos State & 2 ors.
It is important to sift out the gist of the relevant facts and issues relevant to the appeal under consideration.
The above scenario represents what we are expected to accept as the administration of justice. If the scenario really represents justice in this country then justice will have a lot of explanation to do in order that it may be understood by the average citizen. We now have three distinct cases in the courts and five pending appeals. We have four courts, representing the whole hierarchy of the judiciary of the country, all involved in or at the investigative stage of an alleged murder charge. It appears the real justice which the ordinary citizen expects from the courts is secondary to the jigsaw puzzle of the criminal and civil procedure game. There appears to be no end, or even an intention to reach the end, to this trial. The courts ought not allow this type of endless game. It appears that the death of Dele Giwa is now secondary to the mere display of knowledge of criminal and civil procedure. This must end. I do hope all courts concerned should make concerted effort to get finality in the various cases now pending before the courts.
The scene started with an application by a private prosecutor to prosecute two senior army officers. It started before Candide A. Johnson, C.J., as Suit No. M/513/86. The case moved to the Court of Appeal as Appeal No.CA/L/273t86. It did not end there. It moved to the Supreme Court as Appeal No. SC.43/87. It slided down back to the High Court and went before Olusola Thomas, J., as Suit No. M/513/88 who directed the matter back to the Attorney-General’s Chambers. The Attorney-General sent the case back to court (Suit No. ID/4C/88) before E.F. Longe, J., who disposed of the matter. But the case now resurfaced under Suit No. LD/329/88 before Famakinwa, J. Before this was fully taken care of a Suit emerged afresh as Suit No. M/87/88 before Agoro, J., after a sojourn back into the Ministry of Justice. The case before Agoro, J., gave birth to Appeal No. CA/L/167/88. While this was going on a new branch in a civil form appeared as Suit No. ID/ 312/88. This branch was linked to Suit No. M/87/88 and later gave birth to Appeal No. CA/L/197M/88. This went up to the Supreme Court as Appeal No. SC.215/88. Lest we forget the remarks made after decision of Longe, J., gave birth to a criminal charge in Magistrates Court No. MIK/A/203/88. Arising from this charge, a new Suit No. M/134/88 before Adeniji, J., surfaced.
Can anyone blame any member of the public who has failed to see justice in this type of court process and procedure. One can, with a lot of justification, reasonably complain that our court procedure is defective and self-defeating. It has now taken 30 months of the valuable time of the litigants and the courts. This type of thing should not be allowed to continue. There must be finality to all cases if the credibility of our judicial process is to continue to enjoy some respects. While the answers to the above must depend on the facts and circumstances of each case nevertheless the courts must strive at all times to see that they are not being used as vehicles for delayed justice or injustice. If the blame is on the procedure then the time has come when we must review the court procedure. If the fault is attributable to the courts then the courts must pull up their weight and descend in the arena of justice and protect justice. That is what the rule of law is all about. There is no justice in writing volumes of judgments if our people cannot understand what we are doing. There is no justice in allowing conflicting and at times irrelevant issues to cloud the rule of law.
I now go to the appeal before this court. It is the appeal filed by Chief Gani Fawehinmi. The record of appeal is contained in the bundle of documents filed by Chief Fawehinmi and accepted by Chief Williams. This record was attached to the Application dated 14th June, 1988. On the 21st March, 1989, Chief Williams asked for, and there being no objection from Chief Fawehinmi, supplementary bundle of documents to be used as part of the Record. These two bundles have been accepted by this court. The original has been numbered as pages 1 to 191 and the Supplementary as pages 198 to 241.
As stated on page 5 paragraph 2.17 of the Brief of the appellant, Chief Gani Fawehinmi, the proceedings leading to the present appeal were set in motion on 7th March, 1988 when the respondent (the plaintiff, Col. Halilu Akilu) through his counsel, filed a Writ of Summons at the High Court of Lagos State in Suit No. ID/312/88. The Statement of Claim, attached to the Writ provides as follows:
The full text of the said document is set out at the end of this Statement of Claim and headed ‘WORDS COMPLAINED OF”
It is not necessary to reproduce the words complained of. The Writ of Summons and the Statement of Claim were served on the appellant.
The appellant did not file a Statement of Defence but only entered a conditional appearance after which he brought an application dated 21st March, 1988 in the following terms:
“An order striking out this suit on the ground that it is an abuse of the process of the court.
“(A) The suit violates the right of the defendant/applicant as a private prosecutor under Section 342 of the Criminal Procedure Law of Lagos State, Cap. 32, as interpreted by the Supreme Court in the case of Chief Gani Fawehinmi v. Col. Halilu Akilu And Lt. Col. A. K. Togun in Appeal No. S.C. 43/198” (Reported in (1987) 4 N.W.L.R. (Part 67) 797).
(B) The suit violates Section 36 of the 1979 Constitution and derogates from section 21 of the said Constitution.
(C) Even if (which is denied) all the allegations contained in the statement of claim are admitted for the purpose of this application the plaintiffs action will still constitute an abuse of the process of the court.
An order staying proceedings or further proceedings in this case pending the final determination of Suit No. M/87/88 (of which) the “words complained of formed a part, and instituted pursuant to section 342 of the Criminal Procedure Law of Lagos State (Cap 32) and any Criminal Proceeding that may be commenced thereupon against the plaintiff/respondent in this case for conspiracy to murder and murder of Dele Giwa.
The Suit is oppressive, vexatious and intimidating and it constitutes an abuse of the process of court.” (See pages 6 to 14 of the Record for the application together with supporting affidavit).
This preliminary objection came before S.O. Ilori, J., who after hearing arguments from both Chief Fawehinmi and Chief Williams dismissed the application both as regards the main and the alternative prayer. This appeal arose from this decision of Ilori, J., which was given on 6th May, 1988 (See pages 160-179 of Record). I have already given above the history of this Suit and all the other pending appeals. On the 7th March, 1988, the civil suit No. ID/312/88 was filed. This is the suit out of which this appeal arose. In essence the issues raised by Chief Fawehinmi have adequately covered all the grounds of appeal and there is no need to produce these grounds in detail in this judgment.
Chief Fawehinmi presented six issues for determination in this appeal. Chief Williams has in his Brief considered and replied to the issues raised. Before considering the grounds of appeal in relation to the issues for determination I feel duty bound to consider the application made by Chief Fawehinmi at the hearing of this appeal as this court promised so to do. The application of Chief Fawehinmi dated 21st March, 1989, relates to his application in the Supreme Court in which he requested the Supreme Court to set aside its decision in Akilu v. Fawehinmi (No.2) (1989) 2 N. W.L.R. (Part 102) 122. It reads as follows:
TAKE NOTICE that this Honourable Court will be moved on …..the ….day of ……… 1989 at the hour of 9 O’clock in the forenoon or so soon thereafter as Counsel on behalf of the applicant can be heard for an Order:
Staying proceedings or further proceedings in this appeal pending the determination of the applicant’s motion in the Supreme Court to set aside the decision of the Supreme Court in SC. 215/1988 and SC. 216/88 delivered on the 5th of December, 1988 and for which reasons were given on the 6th of Match, 1989.
DATED this 21st day of March, 1989.”
This application was supported by a five paragraph affidavit sworn to by Chief Fawehinmi. I produce this short affidavit for ease of reference. It reads:
“I, Gani Fawehinmi, Male, Nigerian and a Legal Practitioner of 28 Sabiu-Ajose Crescent, Surulere – Lagos hereby make oath and say as follows:
This affidavit in its paragraph 3 directs our attention to the Motion in the Supreme Court and the supporting affidavits thereto. I am therefore entitled to look at these documents. (South Eastern State Newspaper Corporation and anor. v. Edet Asuquo Anwara. (1975) 1 All N.L.R. (Part II) 38 at 44). Normally, it is not the business or the duty of this court to consider any matter pending in the Supreme Court nor is it the role of this court to pre-empt the Supreme Court as to the decision that court should give in any particular matter.
In the circumstances of this appeal we are compelled by the application for stay of our proceedings to look at what is now before the Supreme Court. I note, and this is important, there is no order made by the Supreme Court directing this court to stay our proceedings because of the pending application made by Chief Fawehinmi before that court dated 8th March, 1989. There is also no application before the Supreme Court for this court to stay its proceedings. On the contrary the order received from the Supreme Court in its judgment of 5th December, 1988, was that this court should expedite the hearing of this Appeal. This we must do unless there are convincing reasons given to us and which we, in turn, can give to the Supreme Court for not complying with its orders. Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1979, enjoins that “the decision of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court.” We are such a court.
We have been asked to grant a stay of proceedings but we have not been shown in the affidavit which harm will come to the applicant if the stay is not granted. There is also nothing to indicate whether the High Court has been asked to stay proceedings either by this court or by the Supreme Court in respect of the orders given by the Supreme Court in SC.215/216/88 in the judgment delivered on 6th March, 1989 (now reported as Akilu v Fawehinmi (No.2) (1989) 2 N. W.L. R. (Part 102) 112 at 176 per Karibi-Whyte, J.S.C.).
The submissions of Chief Fawehinmi were that the Supreme Court in its reasons for judgment went out of its way and delivered decisions on issues which were not before the Supreme Court. In fact, it was argued, the issues were the very issues which are now before this court. It was submitted that the Supreme Court was wrong. Sections 220 and 213 of the Constitution were relied upon. Chief Fawehinmi explained the position that on 6th May, 1988, Ilori, J., gave judgment against him and on 7th May, 1988, Chief Fawehinmi filed the present appeal. Having filed his appeal in the Court of Appeal he applied to the High Court and later applied to the Court of Appeal for stay of proceedings pending the hearing of the Appeal. On 15th September, 1988, this court ruled in his favour. It was only on that issue of interim stay that the Appeal by Chief Williams went to the Supreme Court.
In his reply Chief Williams strongly urged this court not to grant the application for stay of proceedings. He submitted that the applicant has had time to file his application since 6th March, 1989 but chose to file it only on the 21st March, 1989 during the hearing of this Appeal. For his submissions he relied on Kigo v. Holman Bros (1980) 5-7 S.C. 60 at 70 and Manchester Corp. v. Connelly (1970) 1 Ch. 420 at 428.
I intend to deal with the application on two distinct basis:
(i) Whether we should grant the application in view of the fact that it was only filed on the day of the hearing of this Appeal, and
(ii) whether any substantial reasons for stay have been adduced before us in relation to the Reasons for judgment given by the Supreme Court on 6th March, 1989.
On the first issue I hold the view that it was wrong and a deliberate attempt to delay the hearing of the Appeal before us. If Chief Fawehinmi was serious in his application he should have filed the same much earlier in order to give this court and the opposing party ample opportunity to look into the matter. We have not been shown that the continuation of the hearing of this appeal would create injustice to the applicant nor is such a continuation vexatious, oppressive or an abuse of the process of this court. (Kigo v. Holman Bros (1980) 5-7 S.C. 60; Okafor v. Nnaife (1987) 4 N.W.L.R. (Part 64) 129). There is a valid appeal before us at the instance of the applicant. In my opinion any further delay to the hearing of this appeal will contribute to the game of hide and seek which has bedevilled the substantive cases. It will also be unjust to the respondent. I see no merit in this late application and I see no justification in granting it. If the basis for the application was the decision of the Supreme Court and the pending new application to the Supreme Court (attached to this application) the proper forum, in my view, for the application for stay of proceedings is the Supreme Court. The proper application in my view is that for accelerated hearing before this court or the Supreme Court.
We have been asked to stay the present proceedings because of a new application filed by the applicant before the Supreme Court for that court to declare its own decision (S.C. 215/1988 and 216/88 consolidated) a nullity. It is not clear whether this application was a new action filed before the Supreme Court. It is also definitely not an appeal before that court. The Supreme Court has been asked to make an Order declaring its decision a nullity, and having so declared to direct a new panel of that court to hear the appeal afresh; or alternatively for that court to set aside part of the judgment of that court. These requests are far-reaching and they raise very substantial constitutional issues. All these are to be done “under the inherent jurisdiction of the court.” I repeat it is not the function of the Court of Appeal to pre-empt what decision the Supreme Court should give in any matter before it save to the extent such pre-emption was done in the decision of this court which was pending on appeal before the Supreme Court. I am however entitled to look at whatever reason was given before this court as a ground for stay of proceedings. The ground advanced before this court is that there is a pending application for the Supreme Court to declare its decision a nullity. A simple glance at the Constitution of this country will make it clear that the application is a non-starter. I fail to see how the exercise of the inherent jurisdiction of the Supreme Court can annul a decision of that court. The Supreme Court, except in respect of particular constitutional provisions, and the application by Chief Fawehinmi is not one of them, has no original jurisdiction to give declaratory judgments. The limits of inherent jurisdiction are clearly stated in Akilu v. Fawehinmi (No.2) (1989) 2 N.W.L. R. (Pt. 102) 122 at 197. per Nnaemeka-Agu, J.S.C., as follows:
“Inherent jurisdiction or inherent power (as it is more commonly called) of court is that which is not expressly spelt out by the Constitution, or in any statute or rule but which can, of necessity, be invoked by any court of record to supplement its express jurisdiction or powers conferred on our courts of record by the Constitution, any law, or rule of court. But a necessary concomitant of the truism that every right of appeal is a creature of statute, charter or commission under which the court is constituted, is that an inherent power, nebulous as it usually is, does not extend the jurisdiction of a court of record. Rather it practically lubricates its statutory jurisdiction and makes it work.”
The courts in this country are creatures of statutes and their jurisdictions are conferred upon them by the Constitution or statutes as permitted by the Constitution. There is no power in this country to grant any jurisdiction by charter or commission. The historical basis of inherent jurisdiction covered such charter courts. No inherent power can add to the jurisdiction of any court of record where no jurisdiction to hear a particular matter has not been vested by the Constitution or statute law. I make the above comments not so much as to “decide” the issue before the Supreme Court but only to the extent that 1 wish to satisfy myself as to the reasonableness of the ground for stay presented to this court.
We have been asked to stay proceedings because the applicant is not satisfied with the decision of the Supreme Court. Fair enough. Is that sufficient reason for granting stay of proceedings. After all the Supreme Court decision complained of was itself the subject of a request for stay. The Appeal before us is also a creature of another application for stay of proceedings. It-defeats my understanding of justice to have a case perpetually-bogged down by numerous technical applications of stay of proceedings or other interlocutory matters. If we decide this appeal it may go back to the Supreme Court on appeal by one of the parties who may be aggrieved. I concede that the applicant had said, with some justification, that the Supreme Court has decided the issues to be raised in this appeal. If that is correct it may be better for the applicant to go to the Supreme Court armed with our decision and in a valid appeal to challenge any conflicting decision (as the applicant is trying to portray) of the Supreme Court.
I am convinced that to grant a stay of proceedings as we are now being requested to do tantamount to accepting that the Supreme Court was wrong in its decision given on 5th December, 1988 and the Reasons given on 6th March, 1989. This is no doubt beyond the powers of this, court. It will be unconstitutional, illegal and void I will not do it.
To sum up, I am of the view that the application dated 21st March, 1989 for stay of proceedings has no merits. It is hereby dismissed.
I now go to the Appeal before us. In dealing with the appeal I intend to consider the Supreme Court decision in Akilu v. Fawehinmi (No.2) (1989) 2 N.W.L.R. (Part 102) 122 as may be appropriate. Let me at this stage put a caveat. I hold no brief for the Supreme Court as to the extent of its powers to declare its decision valid or invalid as requested before that court by the applicant.
At this stage I also ought to make it clear that I hold the view that it is not every judgment of the Supreme Court or of this court that must be squarely within the grounds of appeal or the issues in an appeal. Issues do arise in an appeal in which the appellate court may decide other relevant issues which the court of trial has power to adjudicate upon. This matter was decided by the Supreme Court in Mrs Alero Jadesimi v. Adolo Okotie-Ehoh and 5 ors. (1986) 1 N.W. L.R. (Part 16) 264 in which the Supreme Court had occasion to interpret the provisions of section 16 of the Court of Appeal Act, 1976 (No. 43 of 1976). Karibi-Whyte, J.S.C., who read the lead judgment and Nnamani, J.S.C., both dealt with the powers of the Court of Appeal under section 16 of the Court of Appeal Act, 1976. As I intend to refer to Karibi-Whyte, J.S.C., in another authority, I refer in the next paragraph to the very lucid judgment of Nnamani, J.S.C., in Jadesimi’s case (at particularly pages 280 and 281 of the Report).
It was argued before the Supreme Court in Jadesimi’s case that a rehearing by the Court of Appeal Owing au appeal pre-supposes that there has been a hearing in the lower court and a decision reached which was appealable to the Court of Appeal. It was further argued that the Court of Appeal would lack jurisdiction unless there was such a situation as stated above. Nnamani, J.S.C., answered the second leg of the contention as follows:”But his further contention that the Court of Appeal will lack jurisdiction unless this is so cannot be correct when one examines the second part of section 16 of the Federal Court of Appeal Act, 1976 set down above. Under it the Court of Appeal has power to treat the matter before it as if it was instituted in the Court of Appeal as a court of first instance. To take this instant appeal, it seems to me that since all the materials relating to the appellant’s prayer for stay of proceedings in LD/1035/81 were before the Court of Appeal, it had power to deal with it as if it was filed in that court and to make any order which the lower court could have made.
There is no doubt in my mind that the provisions in the Federal Court of Appeal Act is intended, among other things, to ensure the speedy administration of justice …”
After considering a number of decided cases His Lordship, Nnamani, J.S.C., continued (at p.281F):
“Mr. Sofola, S.A.N., in the course of argument drew attention to the danger inherent in the general powers conferred by Section 16 of the Federal Court of Appeal Act. He contended that if an interpretation of the Section such as I have given is adopted it may mean that the Court of Appeal could even deal with grounds of appeal on which the trial court has not given an opinion since in any case the record of proceedings are before the court. I can only say that nothing has happened to nurture this fear. For my part, I think however that it is desirable that this wide power implicit in the second part of Section 16 be exercised, as happened in this suit, in motions and such applications.”
The above decision was based on well established principle. There is no wisdom, in my opinion, in referring back a simple and clear matter, the facts of which are clearly before the appellate court, particularly where no new issues can possibly and usefully be raised in the lower court. It is a matter of great wisdom for the appellate court to minimise interlocutory appeals. It is in the interest of true justice that all matters concomitant to delays are eliminated at every stage of litigation in order to allow a free passage for justice to be done. Section 16 of the Court of Appeal Act was copied from section 22 of the Supreme Court Act (1960 No. 12). In my opinion the interpretation of section 16 of the Court of Appeal Act applies to section 22 of the Supreme Court Act.
In his reasons for judgment, Karibi-Whyte, J.S.C., in considering whether matters pending in another appeal can be pronounced upon, His Lordship, inAkilu v. Fawehinmi (No.2) (1989) 2 N. W.L.R. (Part 102) 122 at 175 stated as follows:
“But where the substantive claim in a pending action constitutes the basis of the claim in another action, the court is obliged to determine such claim where it is relevant to the determination of the other claim before it. It ought not shy away from deciding the point because it is the subject matter of appeal in another action. The distinguishing element is where the claim to be determined is in the same action, and cannot be determined before the whole case was heard. But where it is merely one of the issues to be determined in another action, I do not see the objection for deciding such issues.”
I need not belabour upon the above principle as all what needs to be said to establish the principle had already been stated by the Supreme Court in the two cases referred to above. Such relevant cases as Board of Inland Revenue v. Joseph Rezcallah & Sons Ltd. (1962) 1 All N.L.R. 1; Ezera v. Ndukwe (1961) All N.L.R. 564; University of Lagos and Ors v. C.L O. Olaniyan and Ors. (1985) N.W.L.R. (Part 1) 156; Ochonma v. Unosi (1965) N.M.L.R. 321 etc. have been carefully considered. In addition to the supremacy of Supreme Court’s decision, in any event, over all courts, I respectfully wish to state that the decisions are unassailable.
Let me now consider the main appeal before us. It is simple. The appellant being dissatisfied with the decision of Ilori, J., delivered on 6th May, 1988, refusing him:
(a) An Order striking out the Civil Suit filed against him, or
(b) An Order for stay of proceedings pending the final determination of Suit No. M/87/88 etc.
appealed to this court in the present appeal. He then applied again both in this court and before Ilori, J., for stay of proceedings, this time, pending the determination of the appeal filed before this court. This court granted the application. On appeal to the Supreme Court against the Order for the stay of proceedings granted by this court, the Supreme Court in Akilu v., Fawehinmi (No.2) (above) reversed the decision of the Court of Appeal and made consequential Orders culminating in directing the High Court to proceed with the main case (i.e. the libel action). Shorn of all technical distinction as to which appeal is being considered it is clear that the only issue being flogged vehemently was the issue of staying the proceedings in Col. Halilu Akilu v. Chief Gani Fawehinmi (Suit No. ID/312/88): the libel action. Throughout the applications for stay of proceedings both in the High Court, the Court of Appeal and the Supreme Court, the same facts and law have been relied upon. I have, for my part, not seen the distinction between the various applications except as to the period the stay will apply to. That is whether the stay will be pending the determination of Suit No. M/87/88 or pending the hearing of this appeal. The result is the same. If there is no basis ‘ for one, the other must fall with it.
In his submission on the main appeal before us, Chief Fawehinmi submitted that the Supreme Court has decided the main appeal which is now before us. He stated as follows according to my notes:
“My view on the appeal is that I am not inviting you to pronounce on the Supreme Court judgment. The appeal has been determined by the Supreme Court so all you can do is to strike out the appeal or dismiss it.”
In view of what I have said above in respect of the nature of this appeal being for the stay of proceedings in ID/312/88, I have no doubt whatever that the appeal has no merit. In my opinion it serves no useful purpose in furtherance of justice in this case. It is more particularly for delaying tactics which this court shall not allow. This appeal therefore fails and is hereby dismissed.
I have carefully considered the present position of the law as to the powers of a private prosecutor under Section 340, 341, 342 and 343 of the Criminal Procedure Law (Cap 32) of Lagos State. I note that the sections of the Criminal Procedure Law as at the institution of Suit No. IDAC/86 before Longe, J., are now different from the same sections at the institution of Suit No. M/87/88 before Agoro, J. I note also the interpretations and applications of these sections as made by the Supreme Court in Akilu v. Fawehinmi (No. 2) (above). I also note the premise upon which Chief Fawehinmi relies for the validity of his second application in Suit No. M/87/88 for the leave to apply for an Order of Mandamus. His main contention is that the amendments to the Criminal Procedure Law, particularly to Section 340 have not altered the right of a private prosecutor which is in fact given under section 342. With the greatest respect to Chief Fawehinmi, I fail to see how one can give a correct interpretation of section 342 without reference to the provisions of sections 340 and 341 of the said CPL. In their judgments both the Chief Justice and Karibi-Whyte, J.S.C., dealt with the issues of interpretation and application of the said sections of the CPL as amended. With the greatest respect to Chief Fawehinmi, I am more inclined to agree with the learned Justices of the Supreme Court not only on the basis of stare decisis but on the pure merits of their reasoning. The three sections are all under the heading of “Proceedings Preliminary to Trials” and dealt with “information” and nothing else. To understand the “information” being discussed one must read the beginning of section 340(1) which reads:
“340(1) Subject to the provisions of this Section an information charging any person with an indictable offence …”
I strongly hold the view that the “information” referred to in section 342 is in respect of “information charging any person with an indictable offence” referred to in section 340(1). The above related to the law before 14th July, 1987 when the Criminal Procedure (Amendment) Edict, 1987 came into force. After 14th July, 1987, as well explained in the Supreme Court judgment (Akilu v. Fawehinmi No.2 (above)) only cases of perjury can be so started.
In view of the above, I am of the opinion that the right of a private prosecutor in Lagos State has been drastically changed. The right was formally given under the Criminal Procedure Law and has now been taken away by the amendments. The Attorney-General can, and in my opinion should prosecute, in all cases where the evidence is available.
In view, however, of the amendments to the Criminal Procedure Law of Lagos State no private prosecutor can file an information charging any person with any indictable offence save for perjury under Chapter 31 of the Criminal Procedure Law. The lower court in this case has no power to grant an Order of Mandamus directing the Attorney-General to grant any fiat or permission to the applicant to institute an action which the applicant has no power to institute under the law.
Before concluding this appeal, I wish to make a comment on the sufficiency of evidence in the application in Suit No. M/87/88. I would prefer to open myself to criticisms rather than close my eyes to perpetuating this type of case in the courts. Nobody doubts the information given that Mr. Dele Giwa was said to have been murdered. Nobody contended that there was no foul play. It is however of the utmost importance that private citizens are not subjected to the threat of perpetual prosecution when the evidence available will not support such prosecutions. I see no justifiable reasons under our law for the court before which an application for leave to apply for an Order of Mandamus can be stopped from considering the proof of evidence (if any) put before it. In my view, the court is not a rubber stamp to seal the wish of the applicant private prosecutor without giving a preliminary consideration as to whether a prima facie case has been sketched out. Anything short of this consideration by the court before which the application is made will tantamount to injustice and abuse of process.
In conclusion, this appeal fails in toto and it is hereby dismissed. I abide by the Orders already made by the Supreme Court in Akilu v. Fawehinmi (No. 2). In my opinion, the respondent is entitled to his costs assessed at N500.00.
I am in complete agreement with my Lord, the President, Nasir, P., in his judgment just read. My opinion herein is just an humble contribution. This is an appeal against the decision of Ilori, J., of the Lagos High Court; Ikeja, wherein on 6th May, 1988, that court dismissed the application of the appellant herein for an order to strike out Suit ID/312/ 88, an action of libel, and *5 Million damages instituted against him by the respondent as an abuse of the process of court, alternatively to stay further proceedings in the action pending the determination before another Judge in the same Lagos High Court of Suit No. M/87/88 which on appeal before us is numbered CA/L/167/88 relating to a mandamus application seeking an order to compel the Attorney-General of Lagos State to prosecute the respondent and another for murder, and conspiracy to murder Dele Giwa, alternatively to grant the appellant a fiat to prosecute them. The distribution and content of the Information in M/87/88, to the mass media is the casus belli for the libel action sought to be struck out by the appellant.
In the grounds of appeal, the appellant complained, first against the statement of Ilori, J., in his ruling that the plaintiff in the libel action before him was not a defendant in the application for an order of mandamus even though that application was intended to order the respondent to perform a statutory duty, which if performed may result in the prosecution of the plaintiff. The mere fact that the mandamus application M/87/88 was on notice to Col. Halilu Akilu and Lt. Col. Togun so as to bring them within the definition of a party, and defendant, in Section 2 of the High Court of Lagos State Law, Cap 52, Laws of Lagos State, 1973, does not make them necessary parties as no relief was claimed against them.
Secondly, the appellant challenged Ilori, J’s., statement that it was erroneous to presume that once the applicant succeeds in Suit No. M/87/88, prosecution of the plaintiff would automatically follow, because Chief Fawehinmi would still require the consent of a Judge before the charge can be laid. The Judge before giving consent has the duty to consider the sufficiency of the evidence in support of the information. Chief Fawehinmi then pointed out that the learned trial Judge was in error as Section 5 of the Administration of Justice (Miscellaneous Provisions) Edict No. 4 of 1979 of Lagos State has abolished the requirement of consent of a High Court Judge before the preferment of an Information as previously required under Section 340(2)(b) of the Criminal Procedure Law of Lagos State.
Thirdly, that Ilori, J., erred when he stated that the only decision on the issue of sufficiency of evidence was that of Longe, J., which is binding until it is set aside. Chief Fawehinmi countered that by stating that Longe, J.’s decision in ID/4C/88 was a nullity as the accused persons were never present in court and the Information was never read throughout the proceedings, the decision being based upon an objection taken by counsel for the accused person without the charge being read. The decision of Longe, J., was therefore given without jurisdiction and void. Under Section 52 of the Evidence Act, a party against whom evidence is used as constituting issue estoppel is entitled to establish the invalidity of the judgment by showing that the court seised of the matter lacked jurisdiction (Timitimi v. Amabebe 14 W.A.C.A. 374.
Fourthly, that ground of appeal complained against part of the ruling which stated that an action meant to protect the good name and honour of the plaintiff was neither an harassment, nor an intimidation of the appellant, since the libel action would enable the plaintiff to confirm or rebut the extremely serious allegations of murder, and conspiracy to murder against him; such an action cannot by any stretch of imagination be regarded as an abuse of the process of court. Chief Fawehinmi then contended that the only proper way for the plaintiff to establish his innocence was by facing the charge resulting from M/87/88 not in a libel action. Also the plaintiff, a Director of Military Intelligence, would in all probability tamper with appellant’s witnesses meant to prove the offences alleged against the plaintiff/respondent. The respondent having obtained a stay of proceedings in M/87/88 pending determination of an appeal to this court, who thereafter files a libel action against his prospective prosecutor surely is abusing the process of court.
The fifth ground was that Ilori, J., erred when he said that should the plaintiff not be prosecuted because a Judge refused to give consent for insufficiency of evidence, without the libel action the plaintiff would have no opportunity to clear his good name. That while society benefits from men of outstanding courage like the appellant who insists at any cost that the law must have its course, there must be justice to the accused to ensure that the innocent is not unjustly vilified and calumniated, Chief Fawehinmi answered the trial Judge by the same arguments under other grounds.
In the sixth ground he criticised the learned trial Judge who said in his judgment that the libel suit did not violate the applicant’s statutory rights under sections 21 and 36 of the 1979 Constitution as well as under Section 342 of Criminal Procedure Law; and that it is also an abuse of the process of court. Chief Fawehinmi disagreed and affirmed that it is an abuse of the process of court by filing a libel action thus intimidating him in the circumstances.
In his brief, in sum, Chief Fawehinmi stated the issues as arising from his appeal which are summaries of his grounds of appeal. On the issue whether ID/312/88 was the proper forum for the plaintiff to establish his innocence of the alleged offences he analysed the judgments of the justices of the Supreme Court in Gani Fawehinmi v. Colonel Halilu Akilu (1987) 4 N.W.L.R. (Pt.67) 797 at 827-828. On what constitutes a cause of action, he submitted that they are facts which establish or give rise to a right of action which is the death of, or who killed Dele Giwa in ID/312/88 as well as in X/ 87/88; Egbe v. Adefarasin (1987) 1 N.W.L.R. (Pt.47) P.1, 20; Kasada v. Sokoto Native Authority (1968)1 All N.L.R. 377,381; Thomas v. Olufosoye (1986) 1 N. W.L.R. (Pt.18) 682. That since the proper forum to establish the guilt or innocence of the respondent is criminal proceedings in X/87/88, ID/ 312/88 amounts to an abuse of process of court, since criminal prosecution which is the State versus the accused person, must take precedence over any civil claim (Kajubo v. The State (1988) 1 N.W.L.R. (Pt.73) 721). In particular; a successful prosecution of the respondent for the alleged offences will automatically terminate the respondent’s action for libel. Alluding to ID/ 4088 he submitted that as there was no arraignment of the accused persons the proceedings before Longe, J., were a nullity (Eyorokoromo v. The State (1979) 6-9 S.C. 3, see Wali, J.S.C’s contribution in Kajubo’s case at 731. See also Section 33(6)(b) of the Constitution; and Section 215 of the Criminal Procedure Act. In his submission not only the accused but the victim deserves justice (Josiah v. The State (1985) 1 N.W.L.R. (Pt.l) 125, 141-142). On the premises and arguments above, he submitted that ID/312/88 is an abuse of the process of court and the lower court had an inherent power to, and should have struck it out. (Jadesinrni v. Okotie-Eboh (1986) 1 N. W.L.R. (Pt. 16) 264, 278; Bolajl v. Bamgbose (1986) 4 N.W. L.R. (Pt. 37) 632,646).
Further an abuse of process of Court connotes lack of bona fides, a use of court process for unjust and unconscionable ends: Amaefule v. The State (1988) 2 N.W. L.R. (Pt.75) 156, 177. The libel action lacks bona fides, is unjust and unconscionable and should be struck out. Also the res, X/87/88 which every Judge in the Lagos State High Court had a duty to preserve will be rendered nugatory if ID/313/88 were allowed to continue. He finally argued that all the reasons given by Ilori, J., in his judgment were invalid and that the appeal be allowed. In adumbrating the arguments in his appellant’s brief, he conceded that this appeal has been determined by the decision of the Supreme Court in Colonel Halilu Akilu v. Chief Gani Fawehinmi (1989) 3 S.C.N.J. 1; (1989) 2 N.W.L.R. (Pt. 102) 122 and that until his motion before the Supreme Court to set it aside is taken, he had nothing more to say. In the respondent’s brief, Chief Williams raised two questions, whether the plaintiff’s action is an abuse of the process of court and therefore ought to be struck out, if the answer is in the negative, then, the alternative question arises to wit, whether the plaintiffs action should be stayed pending the mandamus proceedings before Agoro, J. It was submitted that the issue of abuse of process overlooked the unsuccessful prosecution of the plaintiff before Lange, J., in ID/4c/88. Therefore, it was submitted that the real issue is whether the defendant/appellant’s claim to a right to commence fresh criminal proceedings against the plaintiff for murder and conspiracy to murder Dele Giwa ought to supercede or override the claim of the plaintiff to a right to sue the defendant for damages for libel for falsely and maliciously accusing him, the said plaintiff, of the offences of murder and conspiracy to murder. It would seem that if I understand the brief properly both the fresh criminal proceedings, if any, and the libel case, only affect the rule of priority. The result of the fresh criminal proceedings may raise issue of estoppel in the civil case. In short, it is not an abuse of the process of court for both cases to proceed simultaneously, which is the kernel of Ilori, J.’s ruling under appeal.
On the issue whether it is an abuse of process of court for the plaintiff to commence libel action when the defendant/appellant had earlier in time applied for mandamus to enable him prosecute the plaintiff for the alleged offences pursuant to Sections 341, 342 of the Criminal Procedure Law after the successful completion of the mandamus action against the Attorney-General of Lagos State; Chief Williams submitted that the libel action was not based on the words published to the Attorney-General of Lagos State, but those published to the mass media. On the question whether the court below was correct in saying that the respondent and Lt. Col. Togun, were not defendants in the mandamus action before Agoro, J. Chief Williams submitted that they were remarks of Ilori, J., obits dicta.
On the issue whether the plaintiffs libel action is an abuse of the process of court and ought to be struck out, Chief Williams submitted that there is no rule of law or practice which requires a court of justice to stay a civil action because of the pendency of a criminal prosecution involving the same facts. It is a matter of discretion for the Judge seized of the matter, and if the Judge exercised his discretion judiciously, a court of appeal would not upset it, the more so as there was no criminal case pending. Nor can it be argued that the commencement of civil action with the knowledge of pending criminal proceedings on the same facts is an abuse of the process of court. This to me, is the heart of this appeal. This question is generally referred to as the rule in Smith v. Selwyn (1914) 3 K.B. 98, where Swinfen-Eady, L.J., opined thus:
”It is well established that according to the law of England, where injuries are inflicted on an individual under circumstances which constitute a felony, that felony cannot be made the foundation of a civil action at the cost of the person injured against the person who inflicted the injuries, until the latter has been prosecuted, or a reasonable excuse shown for his non-prosecution.” The West African Court of Appeal considered this principle in U.A. C. Ltd. v. James Eggay Taylor 2 W.A.C.A. 67, at 68, 69. That was an action for a breach of contract in which the plaintiff claimed £8,114.6s.6d. as damages, E7,816 was alleged to be cash deficiency due to defendant’s negligence, and £298.6s.6d, plaintiffs expenses arising from the defendant’s negligence. The lower court ordered a non-suit as regards £7,816, and gave judgment for the defendant as regards £298.6s.6d. On appeal the question was whether the alleged non-suit was to camouflage the felony committed by the defendant. The plaintiff argued that the case was not based on a felony nor was felony averred in the statement of claim; and the lower court did not call on the plaintiff/appellant to show reasonable excuse for not having prosecuted the defendant. The West African Court of Appeal found it necessary, in the interest of justice, to hear the evidence tendered on which the court was satisfied that plaintiff had reasonable excuse for not prosecuting as the Police, on the advice of the law officers that the evidence was not sufficient to convict, dropped the action. Thus the same set of facts could lead to a criminal prosecution for theft or embezzlement, or the civil action instituted, i.e., breach of contract, or for money had and received by the defendant on behalf of the plaintiff. It was held that the plaintiff could not be blamed for riot instituting a private prosecution as the law officers’ advice on insufficiency of evidence was final. Although the court felt bound by Selwyn’s case, it gave judgment for the plaintiff in the circumstances.
In Ojikutu v. A.C.B. Ltd. (1968) 1 All N.L.R. 40, it was held that following Selwyn’s case that where injuries are inflicted on an individual under circumstances which constitute a felony, that felony cannot be made the foundation of a civil action at the suit of the person injured against the person, who inflicted the injuries until the latter has been prosecuted, or a reasonable excuse shown for nor. prosecution. At , 4.), Lewis, J.S.C., opined thus:
“Mr. Ojikutu submitted to us that the principle in Smith v. Selwyn (1914) 3 K.B. 98 was that the plaintiff must be deprived from benefiting from his felonious act and so could not be permitted to sue if the defendant alleged that he based his claim on a felonious act. We do not see that Smith v. Selwyn decided anything of the sort. It was dealing with exactly the opposite situation where a plaintiff was bringing an action against a defendant for damages based on a felonious act of the defendant and Swinfen Eady, L.J.’s (dictum cited above was quoted. Thereafter Lewis, J.S.C., further opined thus).
It was strictly only on this basis that the decision of Smith v. Selwyn had always been applied. It was on this basis that the West African Court of Appeal in the Gold Coast case of United Africa Company Limited v. Taylor 2 W.A.C.A. 67 applied. No authority was cited to us to show the converse applied and we consider the learned trial Judge was right to reject the submission that Smith v. Selwyn could be extended in the way that was suggested. We would moreover in fairness to the plaintiff also add that we would agree with the learned trial Judge that the defendant’s allegation of felony had not in any case been substantiated by evidence at the trial. “
It was the argument of Chief Fawehinmi the appellant that the same set of facts gave rise to his preliminary efforts to prosecute the respondents for felony, that is, murder, and conspiracy to murder, as well as the libel action before Ilori, J. First it is the argument of Chief Williams, learned SAN for the respondents, that no criminal prosecution was possible, first on the law officers opinion, or at least Longe, J.’s decision of insufficiency of evidence in ID/4c/88. Secondly, on the State of Law, at the relevant time having regard to the amendments to the laws, to wit, the Administration of Justice (Miscellaneous Provisions) Amendment Edicts, Nos. 1 and 4, 1979, and 1984, as well as Section 340(2) of the Criminal Procedure (Amendment) Edict, No.7 of 1987, which came into force on the 14th July, 1987, to the effect that in Lagos State, a private prosecutor, like Chief Fawehinmi, the appellant herein, cannot prosecute for murder or conspiracy to murder, or for that matter any felony or even misdemeanours, except the offence of perjury. Therefore, argued Chief Williams, learned SAN, the chair of a private prosecutor in this regard had been removed suddenly and with immediate effect, from the bottom of Chief Fawehinmi, and he must fall down in his struggle to prosecute, as he had no power in law in that regard when ID/4c/88 was before Longe, J., or M/87/88 was before Agora, J., a fortiori when the libel action ID/312/88 was before Ilori, J., on 7th March, 1988, when the writ in the libel suit was filed in Lagos High Court. The most potent weapon in the legal arsenal of Chief. Fawehinmi, which gave him locus standi to prosecute the respondents for the alleged offences, to wit, the Supreme Court decision in Chief Fawehinmi v. Col. Halilu Akilu (1987) 4 N.W.L.R. (Pt.67) 797; (1987) 11-12 S.C.N.J. 151 delivered on 18th December, 1987, but which reflected the State of the Lagos State Criminal Procedure Law in 1986 not then amended, quoted above, …….. when Chief Fawehinmi began his campaign, was blasted to smithereens in Amendment Edict No.7 of 1987, and its scraps were buried in the Supreme Court decision on the new State of Law in Col. Akilu v. Chief Fawehinmi (No.2) (1989) 2 N.W.L.R. (Pt. 102), 122 at 176, 178-179; (1989) 3 S.C.N.J. 1, at 27-28, 29-30, delivered on 6th March, 1989. In it, Karibi-Whyte, J.S.C., reading the lead judgment opined thus-”The conclusions I have reached in my judgment are that:
I therefore will allow this appeal and set aside the judgment o, the Court of Appeal. The ruling of Ilori, J., dated 6th May, 1988. dismissing the application of defendant/respondent, seeking to strike out Suit No. ID/312/88 or in the alternative stay the proceedings therein till the appeal in Suit No. M/87/88 was determined and any criminal proceedings consequent thereto for the prosecution of the appellants for conspiracy to murder and murder of Dele Giwa, is hereby restored.
There will be no order as to costs.”
My Lord, Bello, C.J.N., adumbrated the decision of the lead judgment., which he supported, in his characteristic lucidity in simple language, thus:
”Now, by the combined effect of the Administration of Justice (Miscellaneous Provisions) Amendment Edict, 1979, and the Administration of Justice (Miscellaneous Provisions) (Amendment) Edict, 1984 and the Criminal Procedure (Amendment) Edict 1987, section 340(1) and (2) now read:
‘340(1) Subject to the provisions of this section an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and wherever an information has been so preferred the registrar shall, if he is satisfied that the requirements of the next following section have been complied with, file the information and it shall thereupon be proceeded with accordingly.
Provided that if the registrar shall refuse to file an information, a Judge, if satisfied that the said requirements have been complied with, may, on the application of the prosecutor or on his own motion direct the registrar to file the information and it shall be filed accordingly.
The amendments by the Edicts have limited the right of a private prosecutor to prefer an information charging offence of perjury only. He has no right to prefer an information charging any person with murder.
Consequently, on 24 February, 1988, when the respondent made the application for leave to apply for mandamus with a view to exercising his purported right to prefer and to prosecute an information charging the appellants with the alleged murder of Dele Giwa, the respondent had no such right. The Court of Appeal therefore erred in law in assuming he had such right. It also erred in law in presuming that he had initiated the exercise of such right.”
My Lords, Obaseki, Uwais, Belgore, Nnaemeka-Agu and Craig, JJ.S.C., also supported the lead judgment and the entire Bench of 7 reminded us of the principles for stay of execution pending appeal, as well as stay of proceedings as an interlocutory application both in exercise of the inherent jurisdiction and discretion of a superior Court of Record under Section 6(6) of the 1979 Constitution: Vaswani Trading Co. Ltd. v. Savalakh & Co. (1972) 12 S.C. 77; Kigo (Nigeria) Ltd. v. Holman Bros (1980) 5-7 S.C. 60, 73; Shodeinde & Ors v. The Trustees ofAhmaddiya Movement-In-Islam (1980) 1-2 S.C. 163; Jadesinmi v-. Okotie-Eboh (1986) 1 N.W.L.R. (Pt.16) 264; Obeya Memorial Specialist Hospital & Anor. v. Attorney-General of the Federation & Anor. (1987) 3 N. W.L.R. (Pt.60) 325; Okafor v. Nnaife (1987) 4 N.W.L.R. (Pt.64) 129.
The submission of Chief Williams, S.A.N., that there is no rule of law which requires a superior court of justice to stay a civil action because of the pendency of a criminal prosecution involving the same facts, in the premises and on the basis of the 1989 decision in Fawehinmi (No.2) is accordingly upheld. To my regret, none of the Justices considered the rule in Smith v. Selwyn as applied by the W.A.C.A. in U.A. C. Ltd. v. Taylor or by the Supreme Court in Ojikutu v. A. C. B. Ltd. and the legal profession is left with the conviction that they remain good law since none of those eases were expressly overruled.
My Lord, the President, Nasir, P., in his obita dicta has expressed grave concern about the effect of these related marathon cases on the common man in Nigeria, in search of whom Frank Olize of the Nigerian Television Authority, with penetrating questions to sample the opinion of Nigerians and with his usual wit and humour amused and entertained millions of Nigerians on the Television recently. The common man found in the Clapham Omnibus in England can also be found in the Ota to Apapa Commuter Train, or the Tafawa Balewa Square to Somolu bus. True, they may feel that the law is an ass and that it is against, and not for, the common man, but for the rich, the educated elites, and the powerful. As a seasoned Minster of Justice of the whole of Northern Nigeria in the First Republic and Justice of the Supreme Court first and now President of the Court of Appeal, for about one and a half decades, his appeal, speaking from his rich legal and judicial experience deserves great respect. With the greatest respect, and a great deal of trepidation I venture to say that side of the coin has another-the view of the elite and a considerable number of the Bench and Bar. Professor Wole Soyinka, the Nobel Laureate, during a recent meeting at the 38th General Assembly of the International Press Institute (I.P.I.) in Berlin, Western Germany, delivered a lecture on the Open Press and Terminal censorship which was reported in the Nigerian Tribune of the 25th May, 1989. In it, he proudly stated that the Mass Media, particularly the Press in Nigeria, is the freest in Africa, and perhaps freer than most in Western World countries. That is because The General Babangida Administration supports human rights and freedom of speech. The Fawehinmi v. Akilu & Anor. series of cases would never have reached the courts in other African Countries, and Chief Gani Fawehinmi might have lost his freedom.
On 6th May, 1988, Ilori, J., in concluding his ruling, in obits dicta said: ”I must say that these series of cases and appeals in them have been extremely beneficial to our law of procedure and Administrative Law.”
Chief Williams, during the course of the hearing of these related appeals, the judgments on some of which we read today, rose majestically and with his usual politeness and exercise of the greatest respect to the Bench from the lowest to the highest in the land, as well as his colleagues at the Bar, sought permission of the court to be the first to mention an application, with great respect to the court and the Bar, and wittily and humorously said, because, “I am the tallest, the greatest in bulk, and the oldest at the Bar.” Chief Williams could most justifiably have added another reason namely: “because I am Timi the Law,” his cognomen by people of Western Region of Nigeria while he was the Attorney-General and Minister of Justice in that region during the First Republic. His application was granted amidst laughter, with respectful ovation. Therefore, I too concur in the remarks of Ilori, J. In these series of cases and appeals involving Chief Fawehinmi and Col. Akilu and Lt. Col. Togun as parties, Chief Williams, S.A.N., the greatest lion, ever, of the Nigerian Bar, and Chief Fawehinmi, a young lion at the bar in his own right, employed their vast legal talents, experience, great industry in deep research, and impeccable advocacy to create legal history before our very eyes. Our free press creditably reported the cases considerably fairly; what is more, human rights, freedom of speech and all other freedoms in Chapter IV Sections 30 to 42 of the 1979 Constitution were exercised, preserved and maintained by our courts, to their eternal credit.
In conclusion, I am in full support of the lead judgment of my Lord the President, Nasir, P., including the conclusions and orders he made. I thought it superfluous to comment on the stay of proceedings before this court pending the determination of the application before the Supreme Court in which Chief Fawehinmi sought to convince the Supreme Court to change their minds in certain respects in Col. Akilu v. Chief Fawehinmi (No.2). This appeal is dismissed with X500 costs to the respondent.
I have had the advantage of reading in draft the judgment of my Lord Nasir, President of this court,-just read and I entirely agree with his reasons and conclusions.
The Supreme Court reversed the decision of this court on stay of proceedings and one of its consequential orders directed the High Court to proceed to hear and determine the substantive cases: Akilu v. Fawehinmi (No.2) (1989) 2 N. W.L.R’ (Pt.102) 122. The High Court can start hearing the substantive cases tomorrow and there is nothing to stop it from doing so. Assuming that this court grants the application, the order can only stay this appeal and cannot restrain the High Court from hearing the libel cases.
In my humble opinion, the application is an exercise in futility. The appeal which is now before us had been determined by the Supreme Court in an interlocutory appeal before that court. This appeal has therefore died a natural death and all we can do at this stage is to pronounce it dead.
That decision knocked the bottom out of the application to stay this appeal. This court is bound by all the decisions of the Supreme Court and Akilu v. Fawehinmi No.2 supra is no exception. To grant the application will amount to suspending the judgment of the Supreme Court which we have no right to do. There is no merit whatsoever in the application.
I, too, dismiss the application together with the appeal itself. I abide by the order for costs as assessed in the lead judgment.