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FAILURE TO MOVE A MOTION

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In Esoho v. Asuquo (2007) ALL FWLR (Pt. 359) 1355 at 1370 Paras. C- E (CA), the Court of Appeal stated, “An applicant who fails to move a motion on noticed filed in the course of proceedings up to the delivery of judgment is deemed to have abandoned the purpose which the motion is meant to serve. In effect, both counter – claim … are rendered incompentent. It is the normal practice for a counsel to move a motion on notice before the court seised of the case can entertain it. Failing that, the motion will not be considered on its merits.” Further see the case of OBIOZOR v. NNAMUA (2014) LPELR-23041(CA).

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interlocutory application

THE COURT WILL NOT SHUT OUT A MOTION BECAUSE IT WAS BROUGHT UNDER A WRONG RULE

Fidelity Bank Plc v. Sagecom Concepts Ltd. (2026) 10 NWLR (Pt. 2049) 199 at 239, B—F, per Umar JSC: ‘The objection of the judgment creditor/respondent that no discernible or credible rule has been cited in support of the application is also of no moment. The application was brought under Order 4 rule 1 of the Supreme Court Rules which is quite relevant. It was also brought under section 6 – of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which empowers the court to deal with matters falling within its jurisdiction. Again, the application was brought under the expansive inherent jurisdiction of the court. These are sufficient Rules and laws to predicate this application and I do not agree that the motion was not brought under the relevant Rules of court. Granted that there are more precise Rules of this court that were not specifically mentioned on the face of the motion paper, such will not undermine the prospect of the motion. Even where an applicant had brought an application under a wrong rule, that would not on its own deny a fair consideration of the application on its merit. The court will not shut out an applicant simply because the application was brought under a wrong rule of the court. See: Uchendu & Ors v. Ogboni & Ors (1999) LPELR 3287, (1999) LCN2871 SC; (1999) 5 NWLR (Pt. 603) 337, Oladipo Maja v. Costa Samouris (2002) LPELR 1874 (SC); (2002) 7 NWLR (Pt. 765) 78,Falobi v. Falobi (1976) LPELR 1236(SC). I therefore, hold that the contention of the judgment creditor/respondent on this score is devoid of any merit.’

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RECOMMENDATION FOR LITIGANTS TO LODGE INTERLOCUTORY ISSUES WHEN CASE IS FINALLY DECIDED – IT IS BETTER

Obaseki, JSC in International Agricultural Industries Ltd. and Anor v. Chika Brothers Ltd. (1990) 1 NWLR (Pt.124) 70 at 80-81. There he said as follows: “It is sad to observe that it was at the tail end of the proceedings in the High Court that this interlocutory decision to reject the document was made. It is even sadder to observe that the proceedings before the High Court had to be stayed to allow the pursuit of appeal proceedings against the decision. Although the hearing before the court did not take more than an hour to conclude, it took 8 years for the appeal to travel from High Court through Court of Appeal to this court. If the plaintiff had allowed the learned trial Judge to conclude the hearing and deliver his judgment, he could still have had the opportunity to raise the issue of admissibility in the appeal courts. He would have enjoyed the added advantage that if the point raised succeeded, the decision in the case could have been reversed in his favour and the rights of the parties in the matter determined finally. What is the position now? Although the point raised before us has been upheld and resolved in the appellant’s favour, the rights of the parties cannot be determined finally in this court as hearing before the High Court, Aba, had not been concluded. The case has to be remitted to the High Court for hearing to proceed. In the meantime, information has reached this court that the learned trial Judge conducting the trial is dead. That being the case, trial has to commence de novo before another Judge of the High Court of Imo State, Aba Judicial Division. It is therefore necessary to emphasize that parties should not throw to the wind the wisdom of leaving the prosecution of issues or points that can be taken advantageously after the final decision of the High Court, till the High Court has given its final decision and appeal against the decision lodged.”

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AN INTERLOCUTORY MOTION SHOULD BE BASED ON RELIEF SOUGHT IN THE SUBSTANTIVE ACTION

This court, in Okoya and Ors. v. Santilli (1991) 7 NWLR (Pt.206) 753; observed at page 765 B-C (per Niki Tobi J.C.A.) as follows:- “An interlocutory application or motion should normally be based on the substantive action before the court. In other words, an interlocutory application or motion should normally be based on specific reliefs sought in the substantive action. As a general rule therefore, if an interlocutory application or motion does not seek a prayer related to the cause of action, the application or motion is incompetent. An applicant cannot, at the interlocutory level, make a fresh case, different from the cause of action.”

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COURT CANNOT VIA INTERLOCUTORY APPEAL DECIDE POINTS IN MAIN APPEAL

I am inclined to this view because of the settled principle of law that a court cannot, in an interlocutory application, decide an issue in the substantive case or appeal. See Akapor v Hakeem Habeeb (1992) 6 NWLR (Part 249) 266, Victory Merchant Bank Ltd v Pelfaco Ltd (1993) 9 NWLR (Part 317) 340; Amiara v Alo (1995) 7 NWLR (Part 409)623; A.C. B. LTD v Awogboro (1996) 3 NWLR (Part 437) 383.

— F.F. Tabai, JSC. Shinning Star Nig. Ltd. v. AKS Steel Nigeria Ltd. (2011) – SC. 101/2010

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COURT CANNOT GO OUTSIDE THE TERMS/ORDERS OF THE MOTION

The Court of Appeal cannot go outside the terms of the motion however misconceived it is. It is bound by the terms or prayers in the motion filed. (Commissioner for Works Benue State v. Devcon Construction Co. Ltd. (1988) 3 N.W.L.R. (Pt.83) 407 at 420). Since there was nothing to stay, the Court of Appeal was in error to have made the order prayed for.

— Agbaje JSC. Okoya & Ors. V. S. Santilli & Ors. ( SC.206/1989, 23 MAR 1990)

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WHILE DETERMINING INTERLOCUTORY DECISION, COURT SHOULD NOT DELVE INTO SUBSTANCE

It is indeed settled law that the court, in determining an interlocutory application or the issue of jurisdiction, should refrain from delving into or determining the issues in controversy in the substantive suit before deciding whether it has jurisdiction to entertain the entire proceeding. See Akinrinmisi v Maersk (Nig) Ltd (2013) 10 NWLR Part 1361 Page 73 at 86 Para A-C per Muntaka Coomassie JSC; James v INEC (2015) 12 NWLR Part 1474 Page 538 at 577 Para C-F per Kekere-Ekun JSC.

— O. Adefope-Okojie, JCA. Kanu v FRN (2022) – CA/ABJ/CR/625/2022

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