In 1986, the respondent sought to institute a private criminal prosecution against the appellants for the murder of a certain journalist who was, by means of a letter bomb, killed by unknown persons. Consequently, he presented an application to the Attorney - General of Lagos State requesting him to prosecute the appellants or decline, to endorse a statement disinclination in accordance with the provisions of sections 340 - 342 of the Criminal procedure Law, Lagos State to that effect. That application culminated in a mandamus proceedings; Fawehinmi v. Akilu & Anor., In Re oduneye (1987) N. S. C. C. (pt.11), Vol. 18; Page 1265. That case, having affirmed the right of a public person to institute a prosecution and the obligation of a Law officer to endorse a certificate of disinclination where he declines to prosecute at the public instance, the stage was set for the instant case, for the Attorney - General, rather than endorse a certificate of disinclination, filed an information, charging the present appellants with the conspiracy to murder and murder of Dele Giwa, the deceased journalist. In the trial Court, the accused persons raised a preliminary objection to the effect that the necessary direction from a high Court Judge in accordance with the provisions of Section 340 (2) (b) of the Criminal Procedure Law and that the Proofs of evidence as presented, were not sufficient to ground the information as laid. The trial Court, upholding the objection, quashed the information. A day after, the present respondent wrote a letter to the Attorney - general indicating that he had fresh evidence on which the present appellant could be indicted. He also requested that if the Attorney - General was not minded to prosecute, she should endorse a certificate to that effect under section 342 of the C. P. L. on the same day; the 24th day of February, 1988, the respondent addressed a letter to each of many Newspaper/magazine publishers. The letter contained a two count charge information, charging the present appellants with the conspiracy to murder and the murder of the deceased journalist. Meanwhile, the Attorney - General took no action and the respondent brought an application in the High Court (suit No. M87/88) for leave to bring an application for an order of mandamus, compelling the Attorney - General to exercise her power under S.342,, C. P. L. by filing a fresh information or failing to endorse a certificate of disinclination to enable him (respondent) to commence a private prosecution. The application was dully granted and the present appellant immediately launched an appeal against the ruling granting it. As a result of the appeal by the present appellants, a stay of the order of mandamus was granted.

While the appeal in suit No. m/87/88 was pending, the present appellants as plaintiffs, took out a writ of summons in Suit no. ID/312/88 against the present respondent as defendant for libel on the basis of the Criminal information which the respondent had published to the various Newspaper/ Magazines proprietors against them. The writ which was annexed by a statement of claim (claiming N5,000,00.00) was served on the respondent. The respondent entered a conditional appearance. He also filed a motion in respect of the libel suit for a order striking out the Suit as being an abuse of Court Process because, according to him, it vitiates his (appellant's) right as a private prosecutor, to prosecute within the intendments of S. 342, C. P. L. and the interpretation thereof in Fawehinmi v. Akilu (supra). In the alternative, the respondent sought an order staying Suit No. ID/312/88, pending the outcome of the appeal in suit No. M/87/88, and any Criminal Proceedings that may be commenced thereupon. The High Court (Ilori J.) refused the application, rejecting all the prayers therein. The respondent promptly appealed to the Court of Appeal where his prayers were a repetition of those in the Court below. Subsequently, the respondent brought an application for stay of proceedings in Suit No. ID/312/88 pending the determination of the appeal lodged against the earlier ruling of the Court on the original application for striking out and for a stay. Again, the trial Court rejected the application. The respondent then made the same application to the Court of Appeal. The Court of Appeal in its ruling on the new application, pre-empted the issues on the substantive appeal, ruling in the favour of the applicant the respondent, meanwhile the appeal against the original ruling of Ilori J. in Suit No. ID/312/88 was still pending. While holding that Suit No. ID/312/88 was not vexatious as the applicant had contended, nevertheless held that it would be unethical and undesirable that a civil action should be allowed to take off while the Criminal Proceeding which was first in time was halted, and that it was immaterial that the Criminal Proceeding was stayed by another judge. The Court of Appeal further held that the respondent having commenced a mandamus proceeding pursuant to the institution of Criminal Prosecution, that "Set has crystallised into a Criminal Proceeding; The appellants appealed to the Supreme Court.