Interlocutory Application Under Nigerian Court

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Interlocutory applications are made to courts during the Pendency of proceedings. That is, they are applications that are made to court while an action is pending in court, and may be made at any stage of an action. Interlocutory application follows the cause or event in the proceedings and therefore when the cause or event necessitates filing or making an interlocutory application, an aggrieved party will be perfectly entitled to do so in the court. In Smite V. Cowell (188 1) 6 (1) BD the English court while explaining the nature of interlocutory order which is a natural consequence of an interlocutory application held;

“an interlocutory order means any order than the final judgement of an action. It does not mean an order between the writ and the final judgement. It is an order available both before and after judgement in court”.

This proceedings are designed to assist parties pursue their cases and also ensure speedy resolution of matters. Once an action has been commenced, all subsequent applications are referred to as interlocutory application. Associates Ltd V. NNPC (1991) 8 NWL R (Pt 212) 657.

Interlocutory applications are made by way of motion. ORDER 39 RULE 1 (1) Lagos provides that whereby the rules as application is authorized to be made to the court or a judge in chambers, such application shall be made by motion. But in Abuja the application made by motion order 26 Rule 2 (1) Abuja 2009, are contentious applications, and these are made in court while the non contentious ones are made in chambers. But nevertheless whether it is in open court or in chambers the rules of justice must be adhered to. Oyeyipo V. Oyinloye (1987) 1 NWLR (Pt 50) 358. In Oyeyipo’s case it was held that the power of the Supreme Court to sit in chambers is derived from the rules made under section 236 of the constitution. In other words the power is constitutional and not a breach of section 36 (3) of the constitution which enacts that the court proceedings shall be held in public. An ordinary interlocutory application requires that there must be a substantive action in court or else the application will be incompetent. However a claimant may file any application along with an originating process and may serve both on a defendant simultaneously. Order 39 Rule 8 Lagos.

The procedure of serving an interlocutory motion together with a writ of summons before the defendant enters appearance is usually adopted where the plaintiff feels the need to urgently obtain an order of court, like in actions for damages for trespass, the plaintiff may feel the need to restrain a continuing trespass. This application cansure by way of written application or oral application (in certain cases) for example when the application is explicit enough even though the opposing party can object to oral application.

As effective as the interlocutory application has been shown to be in respect of speeding dispensation of justice, some have misused it.

The ongoing corruption trial of Gbenga Daniel former Ogun State Governor and the decision of the trial court to stay proceedings (adjournment) pending the determination of an interlocutory appeal by Gbenga Daniel is a misuse of interlocutory appeals as stay of proceedings in criminal trials in Nigeria. Gbenga Daniel had prayed the trial court to strike out counts 1-13 of the 38 count charges against him on the basis that a commission of inquiry set up by Ogun State government had already indicted him on those counts. The trial judge, Justice Mabekoje, dismissed his application and held that “An indictment by commission, of inquiry does not amount to conviction. The accused person was not tried for criminal offences. Only a court of law can try an accused for criminal charges.” Unhappy with this decision he headed to the court of appeal praying the court to stay proceedings on the case pending the determination of his appeal by the appellate court. Justice Mabakoje in my opinion has allowed Gbenga Daniel’s prayer even though he stated that the matter is adjourned. My worry in  Gbenga Daniel’s case is the time it takes for appeals to be adjudicated upon by the superior courts in Nigeria. Before the final adjudication on his interlocutory appeal will be given, he may have assumed another political post that grants him immunity from prosecution. It is certainly not beyond the realm of possibility, it has happened before. A good example of such a case is Senator Joshua Dariye who was charged in 2007 for various money laundering offences. Having lost a preliminary application to quash the charges against him; Dariye obtained a stay of proceeding pending the determination of his appeal. By the time the Supreme Court finally ruled in 2010 that he should be tried for those offences, Dariye has become a Senator.

I sincerely wish that the High Courts will give effect to section 40 of the EFCC Act which provides that “ “subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999, an application for stay of proceedings in respect of any criminal matter brought by the commission before the High Court shall not be entertained until judgement is delivered by the High Court.”

In clear terms, the provision has divested the court of the requisite jurisdiction to adjudicate over any applications for stay of proceeding originating from criminal trial being prosecuted by the commission. I pray they adhere, and not change the name from stay of proceeding to long adjournment serving the same purpose desired by the applicant for the stay of proceeding.