Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989)



Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989) – SC

by PaulPipar






Chief Gani Fawehinmi;
Chief Gani Fawehinmi (NO.2)


(1989) LPELR-SC.215/88 – SC.216/88;
(1989) NWLR (Pt.102) 122


Supreme Court


Adolphus Godwin Karibi-whyte, J.S.C;





The appeal before us is against the ruling of the Court of Appeal staying further proceedings in Suit No.ID/312/88 (filed by the Appellants against the defendant claiming the sum of N5,000,000 (Five Million Naira) being damages for words falsely and maliciously published by the Respondent of and concerning the Appellants to numerous publishers of daily newspapers and magazines in Lagos till the determination of the Appeal in Suit No.M/87/88 (the Respondent applied to the High Court of Lagos State in Suit No.M/87/88 for an order for leave to apply for an order of Mandamus against the Attorney-General to exercise her discretion whether or not to prosecute Appellants for conspiracy to murder and murder of Dele Giwa and if she declined to prosecute to endorse a certificate to that effect on the information) and any criminal proceeding that may be commenced against the Plaintiffs/Appellants arising therefrom for conspiracy to murder and murder of Dele Giwa.


1. Whether the Court of Appeal was correct in making the assumption that if the trial of the libel action in this case were to proceed before the criminal proceeding has “run itself out or run its full course” it would prejudice the defendant herein or the course of justice?


1. For issue 1, the Supreme Court granted the issue and gave judgement in favour of the Appellant. It went further to state,

“There is therefore neither identity nor substantial similarity of subject-matter in the two actions to render the decision of the action in the one dependent upon the other. Chief Fawehinmi, cannot therefore be right when he submitted before us that there was only one and the same cause of action both in the mandamus application and in respect of the civil action or libel. It may be conceded that the fons et origo of the various causes of action is the death of Dele Giwa. But this is a completely different thing from saying that a libel arising from publication of an information alleging conspiracy to murder and murder of Dele Giwa also has the death of Dele Giwa as its cause of action.”; “I do not think there is any basis for striking out the claim of the Appellant in Suit No. ID/312/88.”

Available:  Bucknor-Maclean and Anor. v. Inlaks Limited (SC.83/1979, 29th August 1980)


Section 340(2) (as amended) Criminal Procedure (Amendment-Edict No.7 of 1987);



The following circumstances give rise for applications for stay of proceedings.
1. The usual cases of applications for stay of proceedings arise where a party who has appealed against an interlocutory ruling seeks a stay of proceedings in the matter before the court, pending the outcome of the appeal on the interlocutory decision – See Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (1980) 5-7 S.C. 60 at 61, Jadesimi v. Okotie-Eboh (1986) 1 N.W.L.R. (Pt.16) 264. In re G. M. Boyo (1970) 1 All N.L.R. 111.
2. The application is also made after final judgment, when the defendant or plaintiff against whom judgment was given having appealed against the judgment seeks to stay proceedings in respect of execution pending the determination of the appeal. This second category is generally referred to as a stay of execution, or injunction or stay of proceedings. The effect is generally the same, namely to suspend any proceedings in relation to the matter – See Sodeinde v. Trustees of Ahmaddiyya Movement-In-Islam (1980) 1-2 S.C. 163, Okafor v. Nnaife (1987) 4 N.W.L.R. (Pt.64) 129.
3. There are the other cases, where a Plaintiff after commencing an action against the defendant and during its pendency proceeds to initiate another action against the same defendant whether in this country or abroad, in respect of the same or substantially similar subject-matter. The defendant is entitled in such a circumstance to apply for a stay of proceedings in the latter action. See Okorodudu v. Okoromadu (1977) 3 S.C. 21. The Royal Bank of Scotland v. Citrusdal Investments Ltd. (1971) 3 ALL E.R. 558.
4. The application for stay of proceedings also lies where a defendant to an action after the commencement of proceedings brings action against the plaintiff in respect of the same or substantially similar subject matter. See Thomson v. South Eastern Railway Co. (1881-2) 9 Q.B.D. 320.

Available:  LOUIS ONIAH & ORS. v. CHIEF OBI J.I.G. ONYIA (1989)

The fundamental basis being the preservation of the res, it is essential that the subject-matter for determination in the pending appeal should either be the same or so substantially similar that the determination of the appeal will resolve the issue in the action being stayed. – Adolphus Godwin Karibi-whyte, J.S.C. Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989)

The question of a civil proceeding crystallising into a criminal proceeding is not only novel but foreign to our jurisprudence and administration of justice. It is true that where a mandamus proceeding succeeds the repository of the statutory duty may initiate criminal proceedings. This is not the mandamus proceedings itself crystallising into a criminal proceeding. – Adolphus Godwin Karibi-whyte, J.S.C. Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989)

The question which ought to be answered by the applicant for the stay of proceedings is whether on the facts there is a cross-action between the parties on which considerations of the stay of proceedings can be founded. – Adolphus Godwin Karibi-whyte, J.S.C. Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989)

I think it goes without saying that a Plaintiff whose statement of claim discloses a cause of action should be allowed to have his case tried, unless it can be shown that his conduct in bringing the action is clearly, frivolous, vexatious or otherwise an abuse of the process of the court. – Adolphus Godwin Karibi-whyte, J.S.C. Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989)

Available:  F. C. Udoh & Ors. v. Orthopaedic Hospitals Management Board & Anor. (1993)

This court will regard as vexatious an action brought by a defendant against the plaintiff in respect of the same subject-matter in the same action in which he is the defendant. – Adolphus Godwin Karibi-whyte, J.S.C. Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989)

Parity of treatment in the administration of justice demands the maintenance of a complete balance in the scale of justice. I do not think that even on grounds of equity it is either wrong or odd to stay criminal proceedings where a prosecutor is exercising a right which is challenged. Unless and until the right to prosecute is established, and the subject matter of the prosecution is shown to be the same or substantially similar to that of the subsequent civil proceedings, the Plaintiff is entitled to continue with the exercise of his right to protect any injury done to him. – Adolphus Godwin Karibi-whyte, J.S.C. Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989)

This court has in Obadara v. Grade B Customary Court (1964) 1 All N.L.R. 336 and Fawehinmi v. Akilu (1987) 4 N.W.L.R. (Pt.67) 797 clearly stated that Mandamus proceedings including applications for leave to issue, are civil proceedings. – Adolphus Godwin Karibi-whyte, J.S.C. Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989)

In my judgment 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 and powers. – Phillip Nnaemeka-Agu, J.S.C. Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989)




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