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

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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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interlocutory application

WHAT IS AN INTERLOCUTORY APPLICATION

An interlocutory application is that application which does not decide the rights of the parties but are made for the purpose of: (a) Keeping things in status quo till the rights of the parties can be decided; (b) Obtaining some direction of the court as to how the cause of action is to be conducted; (c) Determining what is to be done in the progress of the cause of action for the purpose of enabling the court ultimately to decide upon the rights of the parties. Therefore an order of court is interlocutory when it does not deal with the final rights of the parties.

— M.U. Peter-Odili, JSC. Ugo v. Ugo (2007) – CA/A/110/2007

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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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FAILURE TO MOVE A MOTION

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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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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RECOMMENDATION THAT INTERLOCUTORY APPEAL SHOULD STOP AT THE COURT OF APPEAL

Appeal on this matter was filed in the Court of Appeal on 3rd March, 2000. Today is 14th December, 2007. It has taken more than seven years to fight the admissibility of an exhibit, an issue which could have been taken at the end of the case after final judgment. In order to save litigation time and money of litigants, it is my view that all interlocutory appeals must stop at the Court of Appeal. This will involve the amendment of section 241 of the 1999 Constitution. I do not think it is out of place to recall that the Constitutional Debate Coordinating Committee, 1998, under my Chairmanship, which recommendations gave birth to the 1999 Constitution, recommend to the Provisional Ruling Council during the Military Regime of General Abdul Salami Abubakar, that all interlocutory appeals should stop at the Court of Appeal. The Council in its wisdom rejected the recommendation. In view of the fact that the Supreme Court is inundated with interlocutory appeals, which take so much of the time of the court, a situation which results in congestion of the court, it is hoped that the National Assembly will amend section 241 of the Constitution to make the Court of Appeal a final court in interlocutory appeals. That will save so much litigation time. That will save so much money for litigants. That will save the Supreme Court so much time to take final substantive and final appeals. As it is, seven long years are wasted for no reason. I say no more.

— N. Tobi JSC. Musa Abubakar v. E.I. Chuks (SC.184/2003, 14 DEC 2007)

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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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