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  • Pharmatex Industrial Proj. Ltd. vs. Trade Bank (Nig.) Plc.
  • 162
  • 2003-07-07
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Pharmatex Industrial Proj. Ltd. vs. Trade Bank (Nig.) Plc.

PHARMATEX INDUSTRIAL PROJECTS LTD.

V

TRADE BANK (NIG.) PLC.

MR. BAYO OJO

COMMISSIONER OF POLICE, KWARA STATE

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA AREMU OKUNOLA, JCA ( Presided )

PATRICK IBE AMAIZU, JCA

WALTER SAMUEL N. ONNOGHEN, JCA ( Read the Lead Judgment )

CA/IL/109/99

MONDAY, 6TH MAY, 2002 

ACTION - Cause - Meaning of

ACTION - Interlocutory orders made in an action - Action subsequently struck out - Whether orders are revived upon the relisting of action

ACTION - When can be said to be pending in court

APPEAL - Stay of execution pending appeal - Order of subsequently granted before appeal is terminated - Whether order of stay earlier granted automatically becomes revived on relisting the appeal

APPEAL - Stay of execution pending determination of appeal - Effect of dismissal of appeal thereon

JUDGMENT AND ORDERS - Interlocutory orders made in an action Action subsequently struck out - Whether orders are revived upon the relisting of action


JUDGMENT AND ORDERS - Order to relist a suit - Effect of - When it takes effect

JUDGMENT AND ORDERS - Stay of execution - Existing order of Effect of dismissal of appeal thereon

PRACTICE AND PROCEDURE - Action - When said to be pending in court

PRACTICE AND PROCEDURE - Interlocutory orders made in an action - Action subsequently struck out - Whether orders are revived upon the relisting of action

PRACTICE AND PROCEDURE - Stay of execution pending appeal Order of subsequently granted before appeal is terminated Whether order of stay earlier granted automatically becomes revived on relisting the appeal

PRACTICE AND PROCEDURE - Stay of execution pending determination of appeal - Effect of dismissal of appeal thereon

STAY OF EXECUTION - Stay of execution pending appeal - Order of subsequently granted before appeal is terminated - Whether order of stay earlier granted automatically becomes revived on relisting the appeal

STAY OF EXECUTION - Stay of execution pending determination of appeal - Effect of dismissal of appeal thereon WORDS AND PHRASES - ‘Cause’ - Meaning of

Issue:

Where the substantive suit is struck out as in the present appeal, and is subsequently relisted, does the striking out of the substantive suit in any way affect any appeal against a ruling on a motion arising from that suit?

Facts:

The plaintiff/appellant sued the respondent at the Federal High Court, Ilorin for a declaration amongst others that the appointment of the 2nd defendant by the 1st defendant as a receiver in respect of his property is illegal, unconstitutional, null and void and of no effect. The trial court granted his ex parte motion for interim injunction restraining the defendants from interfering with the plaintiff’s premises pending the determination of the motion on notice. Subsequently, the defendants/respondents filed a notice of preliminary objection challenging the competence of the appellant to institute the action without the consent of the 2nd respondent. The objection was sustained as a result of which the appellant appealed. Appellant’s appeal succeeded.

Consequently, the appellant filed an application at the Federal High Court seeking a mandatory order compelling the defendants/respondents to release to them their factory and also injunction restraining the defendants/ respondents from further interfering with their factory. It was the appellant’s case that with the setting aside of the earlier judgments of the Federal High Court which dismissed their substantive case which then paved the way for the respondents to take possession of the appellant’s factory, there was no longer any basis for their continued possession. Appellant’s application was dismissed.

Dissatisfied with the ruling, appellant appealed.