Download PDF
RULING On 29th October 2018, I gave a ruling in this matter wherein I adjourned this suit sine die pending the determination by the Court of Appeal of some motions filed by parties in the Court of Appeal in respect of an interlocutory appeal arising from this suit. I did also state in the ruling that all applications or complaints that may arise in the interim in this suit be taken before the Court of Appeal. While that ruling subsisted, the Claimant/Applicant filed a motion on 5th November 2018 praying this court to review or vary the ruling so that that Claimant/Applicant’s motion on notice for interlocutory injunction and other incidental applications pending in this court can be heard and determined. I have perused the depositions in the affidavit and the further affidavit of the Claimant/Applicant filed in support of the motion and the counter affidavit of the 2nd and 3rd Defendants/Respondents filed in opposition to the motion. I have also considered the arguments of counsels for the parties filed in support of the motion and the counter affidavit. In my view, the issue to be determined in this application is a simple one. That is the reason I will not waste time setting out the contents of the depositions in the affidavits or the arguments of learned counsels in the written addresses in this ruling. I did observe in my ruling of 29th October 2018 that the record of appeal in respect of the interlocutory appeal in this suit has been transmitted to the Court of Appeal. Even though the Defendants/Respondents motion for extension of time to transmit record has not been heard by the Court of Appeal, the fact that the record of appeal has been transmitted and appeal number has been assigned to the appeal indicates that the appeal has been entered in the Court of Appeal. Also, there is a pending application before the Court of Appeal for stay of proceedings of this court. That motion too has not been heard or determined by the Court of Appeal. Since my ruling of 29th October 2018, there is no new development in the appeal reverting the matter back to this court for continuation of proceedings. With the pendency of the motion for stay of proceedings in the Court of Appeal, I still hold that this court ought not to take any steps in the proceedings until that motion is determined, one way or the other, by the Court of Appeal. The Claimant’s reason for the instant application is that the Defendants are taking steps that will affect the substantive suit, hence he wants this court to continue proceedings so that his motion for interlocutory injunction can be heard and determined. Although the said motion for interlocutory injunction was filed in this court since on 6th August 2018, the power of this court to hear that application has been affected by Order 4 Rule 11 of the Court of Appeal Rules 2016 which provide that after an appeal has been entered, the Court of Appeal shall become seised of the whole proceedings between the parties and every application in the suit shall be made to the Court of Appeal. It was in view of this rule I directed in the ruling sought to be varied that all subsequent applications in this suit be taken before the Court of Appeal. In ALIMS NIGERIA LTD vs. U.B.A. PLC. [2007] All FWLR [Pt. 348] 971 at 982, the Court of Appeal held that where an appeal has been entered in the Court of Appeal, the trial court has no power to make any order in respect of the said appeal which has been seized by the Court of Appeal. See also AGU vs. ANYALOGU [2001] FWLR [Pt. 68] 1247 at 1255; BALOGUN vs. MAYODE ENTERPRISES [NIG.] LTD [2008] All FWLR [Pt. 437] 156. Let me mention that the Claimant’s reason for asking this court to continue proceedings, which is to hear his application for interlocutory injunction, is one of the applications he can take before the Court of Appeal before the determination of the appeal. See Order 4 Rule 6 Court of Appeal Rules 2016. By the effect of the Court of Appeal Rules and the authorities referred to in this ruling, it is better for the Claimant to file his application for interlocutory injunction before the Court of Appeal or transmit the one filed in this court to the Court of Appeal instead of labouring to have this court vary its ruling in order to hear his application for interlocutory injunction. An attempt by this court to continue proceedings in this case while the motion for stay of proceedings pending before the Court of Appeal is yet to be determined is likely to bring this court on a collision course with the Court of Appeal. In my view, this court cannot vary or review its ruling of 29th October 2018. The ruling subsists until the outcome of the motion for stay of proceedings pending before the Court of Appeal or any interim direction from the Court of Appeal. The Claimant’s motion is dismissed. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge