The appellants were the defendants in the High Court of Lagos State and the respondents the plaintiffs to 13 the suit claiming:

Before the trial of the case, the defendant raised a preliminary objection that having regard to the decision in Akilu v Fawehinmi (No 2) (1989) 2 NWLR (pt 102) 122, the complainant had no locus standi to institute Criminal Proceedings in Lagos against the defendant by way of private Prosecution. Also suo motu Kessington, J before whom the preliminary objection was taken raised another preliminary issue on the interpretation of Section 256(2) of the Constitution of the Federal Republic of Nigeria 1979 as to whether the complainant being a retired judicial officer, was entitled to conduct the prosecution of the case in person. After having heard the arguments of counsel for the parties on the two preliminary matters, the Judge in his ruling dismissed the preliminary objection of the defendant but held that by the rule of Section 256(2) of the 1979 Constitution the complainant could initiate the case but was barred from prosecuting it. He struck out the case on this latter ground.

Both parties were not satisfied with the ruling. The complainant appealed to the court against the order striking out his case on the ground of the Constitutional provision while the defendant cross appealed against the dismissal of his preliminary objection. After the parties had filed their brief in the court of Appeal but before the hearing of the appeal the complainant applied to that court requesting it to refer the Constitutional issues and the attendant question of locus standi raised in the appeal to the Supreme court. The court of Appeal granted the request and on the facts of the case stated above referred the following questions to the Supreme Court for decision under Section 259(3) of the Constitution. The questions referred are as following:-