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

LawGlobal-Hub Lead Judgment Report

AKPATA, J.C.A.

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

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

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

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

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

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

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

In view of the extremely careful and enlightening arguments which have been addressed to us in this matter by both sides, I find no difficulty in resolving this application. A long line of decided authorities have laid down the principles that should guide the courts in applications for stay of proceedings. These principles were succinctly summed up and previous authorities reviewed in the cases of (1) Chief Y.P.O. Sodeinde v. Registered Trustees of the Ahmadiyya Movement-In-Islam (1980) 1-2 SC.163 and (2) Kilgo

(Nigeria) Limited v. Holman Bros. (Nigeria) Limited (1980) 5-7 Sc. 60.

The onus is on the party applying for a stay pending appeal to satisfy the Court that in the peculiar circumstances of his case, a refusal for a stay would be unjust and inequitable. It is also the duty of the Court to see that an appeal, if successful, is not in vain.

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

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

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

“Generally speaking, the consequences is that the judges are very slow to stay actions; that does not mean that there is no discretion in the judges, but the general practice is that you should not stay actions unless the action, beyond all reasonable doubt, ought not to go on. In other words, you ought not to stay an action unless one of two things occurs; either the action before the Court is what in old days would have been held to be a demurrable claim, or the action is of such a character that, although it may not be demurrable, there is plain reason why it must fail.”

Chief Williams drew our attention to the case of Ojikwu v. African Continental bank Limited (1968) 1 All NLR 40 to show that the principle in Smith v. Selwyn (1914) 3 K.B. 98 is not applicable in this case. In the case under reference the Bank instituted an action against its customer and won in the High Court. On appeal to the Supreme Court the appellant complained in one of the grounds of appeal that the learned trial Judge erred in law in holding that the rule in Smith v. Selwyn does not apply to the case when the defendant had pleaded at paragraph 5 of his statement of defence that there was a written agreement for a loan of N13,000.00 between the Bank and himself and that the said agreement was altered and forged without the knowledge and consent of the defendant. It was the contention of the defendant in that case that on the state of the pleadings, since he had alleged a felonious act the trial Court ought to have stopped the Bank’s action from proceeding by bringing the rule in Smith v. Selwyn into play. The Supreme Court held that Smith v. Selwyn did not decide anything of the sort and that the rule dealt with the opposite situation where a plaintiff was bringing an action against a defendant for damages based on a felonious act of the defendant. In effect where the plaintiff in a civil action makes no allegation of a crime against the defendant, the rule in Smith v. Selwyn is inapplicable even though the defendant has introduced element of a felonious act into the case. In the case in hand the respondent as plaintiff in his action for libel has not accused the defendant of a felonious act. It is the other way round.

The F rule in Smith v. Selwyn is 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 his non-prosecution.

The point must be made that the applicant, Chief Fawehinmi, has not before us canvassed the point that the rule in Smith v. Selwyn is applicable to this case. It is his contention that the basis for granting a stay of proceedings is fairness to the parties. In this regard he cited Lawrence Okafor and Others v. Felix Nnaife (1987) 4 NWLR (part 64) 129 at page 137 where Oputa, J.S.C. drew attention to the case of Balogun v. Balogun (1969) 1 All N.L.R. 349, a matrimonial case, in which a stay was granted on the basis of fairness to both parties. The applicant also argued that the equity of the matter must also be considered and cited N.I.CO.N. v. Power and Industrial Engineering Company Limited (1986) 1 N.W.L.R. Part 14 page 1 at page 29.

Then there is the case of Thames Launches v. Trinity House (1961) 1 All E.R. 26 decided by the Chancery Division of the High Court in England also cited by the applicant which has only a persuasive authority. At page 33 Buckley, J. observed thus:

“In my judgment, it is vexatious if somebody institutes proceedings to obtain relief in respect of a particular subject-matter where exactly the same issue is raised by his opponent in proceedings already instituted in another court in which he is not the plaintiff but the defendant. The following will illustrate what I mean. Supposing a question of construction were to arise on a will in respect of which the High Court and the Palatine Court had concurrent jurisdiction. If one party affected by that question started proceedings in the High Court making another party a defendant, in my opinion it would be grossly vexatious for that defendant subsequently to start proceedings in the Palatine Court raising precisely the same question.”

The defendants in that case were restrained from proceeding on the two summonses subsequently filed until the final determination of the question raised on the original summons filed by the plaintiff.

Chief Fawehinmi therefore submitted that since there was only one cause of action in the mandamus application and in respect of the civil case instituted by the respondent and since the mandamus application was first to be initiated, equity and fairness demand that the civil action be stayed until the mandamus application was finally determined.

I have already made the point that there are general rules guiding the Court in the exercise of its discretion as to whether or not to grant or refuse a stay. The exercise of such discretion would depend on the facts and circumstances of each case. The facts of one case are rarely the same as those of any other. Therefore no rule or guiding principle should be applied mechanically to a complex and peculiar situation. The situation that has arisen in this application is novel. The fact that Chief Williams, S.A.N. and Chief Fawehinmi have not cited a case of comparable facts with this case, except Thames Launches v. Trinity House (supra) which only has marginal basis for comparison, underscores the unusual character of the incidents of the present application.

I now proceed to examine the facts and consider the appropriateness or otherwise of granting a stay. That the applicant first set in motion the pre-trial exercise to get the respondent prosecuted for the offence of conspiracy to murder and murder before the respondent filed his civil action is not in dispute. That the applicant has been granted leave to apply for Order of Mandamus compelling the Attorney-General of Lagos State to exercise her discretion whether or not to prosecute the respondent and one other is also beyond question. The respondent has appealed against the order granting applicants leave to apply for mandamus. At the instance of the respondent also a stay was, rightly or wrongly, granted in respect of the mandamus proceedings thus putting a halt to it. That was not all. The applicant’s application for an order striking out the civil action or stay proceedings in the civil case was refused. The applicant has appealed against the order of the High Court. He is now praying this court in the interest of justice and fair play to stay the civil action pending the determination of this appeal.

There is no doubt that in essence the cause of action or the substance of the action in the mandamus application and the respondent’s civil action is the death of Dele Giwa. 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 no way involved in the brutal and murderous act and that he had been defamed by the applicant.

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. Smith there is basis for granting a stay.

Also as stated by the authors of Halsbury’s Laws of England which has been reproduced earlier in this ruling, “The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial” and that “the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.” The operative qualifying statement is “unless the proceedings beyond all reasonable doubt ought not to be allowed to continue” and it relates to a single case. In the instant case it is not a simple question of a party having his right to conduct his case, but a question of two competing proceedings – the applicant’s right to have his matter attended to first and that of the respondent to have his civil action determined first. The task is that of getting the right balance. The right of an individual is restricted by the right of another. It is therefore unrealistic to apply the principle enunciated by the authors of Halsbury’s Laws of England to a situation such as this. Even then the same authors made the point that the court has inherent power to order stay of proceedings in a variety of circumstances, one of which is where there are cross-actions between the same parties (see Halsbury’s Laws of England 4th Edition Vol.37 paragraph 442 page 330).

While I do not consider it vexatious, and it is not the issue now, for the respondent to institute his action to obtain relief in respect of the same subject-matter raised by the applicant in the criminal proceeding already initiated, I find it highly undesirable and unethical that the civil action should be allowed to take off while the criminal proceeding which was first in time is halted. It is immaterial that the criminal proceeding was stayed by another judge. Looked at objectively, it runs against the grain of justice. It is true as pointed out by Chief Williams that in Launches v. Trinity House (supra) it was the criminal case that was stayed. That was so because the civil action was first to be instituted. Secondly the criminal summonses were issued in an inferior court to the court in which the civil case was first instituted. The ratio, which I accept as valid, in that case as expressed at page 26 is that:

“Where matters which involved substantially the same issues were raised both in civil proceedings and at a later stage in criminal proceedings in an inferior court between parties who, looking at the substance of the matter, were in reality the same, the court could restrain the prosecutor in the criminal proceedings from continuing them until the civil proceedings had been decided; accordingly, an injunction would be granted in the present case since the substantive legal question raised by the criminal proceedings was the same as that raised by the originating summons.” (Italics mine)

It is also true that no information has been filed against the respondent. One however should not lose sight of the fact that on 2/3/88 when the applicant was granted leave to apply for order of mandamus, on the application of their counsel the respondent and Lt. Col. A. K. Togun were made parties to the mandamus proceeding. The mandamus proceeding is an important statutory legal exercise that should be embarked upon by an individual to initiate criminal proceeding. The step taken by the applicant has crystallized into a criminal proceeding which takes precedence over and above a subsequent civil action based on the same or substantially the same subject-matter. An act which has some degree of formality and significance and which was done pursuant to any rule of court and has received the attention of the court is a proceeding. I 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.

It is also worthy of note that if the civil proceeding is not stayed the appeal of the applicant against the ruling of the learned trial Judge dated 6/5/88 may be rendered nugatory if his appeal eventually succeeds. If, for example, it is held on appeal that the respondent’s action lacked competence he would have derived some tactical benefit, if not financial, from an otherwise incompetent action. The court never acts in vain. The principle that all courts of record have inherent power to preserve the res of litigation pending determination of an appeal is applicable not only to cases where the res is tangible but also to cases in which the res is intangible (see Kigo Nigeria Limited v. Holman Bros (Nigeria) Limited (supra) at page 73). It would be perverse to argue that if the civil action is not stayed a decision on the matter in the pending appeal might not be rendered nugatory.

In my view, to allow the civil action of the respondent to proceed in the circumstances of this case will be most unjust and inequitable. It would be a dangerous legal precedent which I think will offend not only minds learned in the law but also the minds of honest and right thinking laymen. It would amount to the court granting a standing invitation to anyone accused, rightly or wrongly, of a crime to opt for a civil action against his accuser, while at his behest, the criminal proceeding initiated against him is stayed. It is not right. It is odd. The criminal proceeding should be allowed to run itself out or run its full course before the civil action can justifiably be entertained.

Ordinarily all that an accused person is entitled to is the proof of evidence of the offence alleged against him. He is not entitled to have prospective witnesses produced and have them testify and cross-examined before the actual criminal proceedings, except by way of preliminary investigation. In the instant case, if the civil action is not stayed, the respondent would be provided with more than he is entitled to. He would, as it were, be obtaining through the back door what is denied him by due legal process. As stated by Aniagolu, J.S.C in N.I.C.O.N. v. Powers Industrial Engineering Company Limited (supra) at page 29 equity “does not envisage sharp practice and undue advantage of a situation.” While no sharp practice attaches to the respondent, opposing the application borders on gaining an undue advantage and tends to over-reach. The application succeeds. Suit No. ID/313/88 Col. Halilu Akilu v. Chief Gani Fawehinmi is hereby stayed pending the hearing and final determination of the appeal lodged by the applicant against the ruling of Hon. Justice S. O. Ilori dated 6th May, 1988. Costs assessed at N150.00 in favour of the applicant.

It was agreed by both sides that the ruling in this application should apply to the application CA/L/198M/88 Chief Gani Fawehinmi v. Lt. Col. A.K. Togun. In the circumstance proceeding in Suit No. ID/313/88 Lt. Col. A. K. Togun v. Chief Gani Fawehinmi is also 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. Costs assessed at N150.00 in favour of the applicant.

Other Citations: (1988) LCN/0056(CA)