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COURT CANNOT GO OUTSIDE THE TERMS/ORDERS OF THE MOTION

Dictum

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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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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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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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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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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MOTION NOT ARGUED IS DEEMED ABANDONED

It is a notorious and ancient principle of law that a motion, be it on notice or ex parte, is not self-executory. It has to be argued by its proponent/owner for a Court to be properly equipped with the requisite jurisdiction to rule, one way or the other, on it. Curiously, however, the first respondent, in its infinite wisdom, did not argue the application in its amended brief of argument. In glaring absence of not being argued, the application suffers from barrenness and de jure, abandoned. In that unenviable and pitiable state of abandonment, its fortune is obvious. It carries the liability of being struck out. Consequently, in due obeisance to the dictate of the law, I strike out the application on account of abandonment.

— O.F. Ogbuinya JCA. Stanbic IBTC Bank Plc v. Longterm Global Cap. Ltd. & Ors. (September 20 2021, ca/l/1093/2017)

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WHERE SOME GROUNDS OF APPEAL ARE TO BE CHALLENGED, NOT A PO, BUT A MOTION ON NOTICE

It is now trite law that a motion on notice is filed where a party intends to challenge the incompetence of one or two grounds of appeal in the presence of an existing valid ground(s), see Garba v. Mohammed (2016) NWLR (Pt. 1537) 114; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 96; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; NNPC v. Famfa Oil Ltd. (2012) LPELR 7812(SC), (2012) 17 NWLR (Pt. 1328) 148; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Ezenwaji v. UNN (2017) 18 NWLR (Pt. 1598) 45; Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 14 175; Lawanson v. Okonkwo (2019) 3 NWLR (Pt. 1658) 77. UBN PLC V. Ravih Abdul & Co. Ltd. (2019) 3 NWLR (Pt 1659) 203; FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338; Lolapo v. COP (2019) 16 NWLR (1699) 476. Opeyemi v. State (2019) 17 NWLR (Pt. 1702) 403. I have married the meat of the objection with the inelastic position of the law displayed above. The wisdom behind the comparison is not far-fetched. It is to ascertain if the objection is obedient to the law or desecrates it. An in-depth study of the objector’s objection, discernible from its arguments thereon, clearly, reveals that it mainly chastises the appellant’s grounds 2, 3, 7 and 11 of the notice of appeal. It is obvious that the objector’s objection spared grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19 of the notice of appeal. In other words, those grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19 are viable and valid with the potency to sustain the appeal. In the face of the existential validity of grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19, the objector ought not to have filed a preliminary objection. The proper/appropriate process is an application (motion on notice) challenging the viability of those grounds.

— O.F. Ogbuinya JCA. Stanbic IBTC Bank Plc v. Longterm Global Cap. Ltd. & Ors. (September 20 2021, ca/l/1093/2017)

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