Olori Motor Company Ltd. & Ors V. Union Bank Of Nigeria Plc (2006)
LAWGLOBAL HUB Lead Judgment Report
L. KUTIGI, J.S.C
The facts will be stated briefly. Judgment was entered in favour of the plaintiff against the defendants in the sum N7,949,273.00 and N84,710.00 with interest by the Benin High Court. The defendants without delay filed a notice of appeal simultaneously with a motion for stay of execution. The plaintiff was never served. Meanwhile the plaintiff levied execution by selling some of the defendants’ mortgaged properties. On becoming aware of the development, the defendants applied to the High Court to set aside the execution. The application was granted and the execution was set aside.
Dissatisfied with the ruling setting aside the execution, the plaintiff appealed to the Court of Appeal which allowed the appeal and dismissed defendants’ application to set aside the execution. The defendants have now appealed to this court against the decision of the Court of Appeal.
The defendants/appellants on page 2, paragraph 1.4 of their brief of argument in support of their appeal have stated as follows”
“This present appeal is against the decision of the Court of Appeal. It is worthy of note that the Court of Appeal has subsequently allowed the appeal against the judgement of the trial court in the substantive suit. ”
It is clear to me therefore that this appeal is now lifeless, spent, academic, speculative and hypothetical, being an interlocutory appeal only, while the substantive suit or appeal itself has been disposed of and or completed (see for example Olale v. Ekwelendu (1989) 4 NWLR (Pt.115) 326, Union Bank of Nigeria Ltd. v. Alhaja Bisi Edionseri (1988) 2 NWLR (Pt. 74) 93. It must be emphasized here now that this court does not issue opinions about potential cases. The court hears appeals or cases that present actual threat to individual rights. A case must present a current problem that is yet to be resolved. It must be stressed also that a party bringing a case must have a vested interest in the issues raised and in its outcome. This appeal has failed all the tests. The defendants/appellants and or their counsel should have taken steps to withdraw this appeal before now. They failed to do so. I am of the firm view that this appeal must fail on this ground as this court is without jurisdiction. There is therefore no need for me to consider the issues raised in the appeal. It must in the circumstances therefore be struck-out, and I so order.
The appeal is struck-out. The plaintiff/respondent is entitled to his costs which is assessed at N10.000.00 against the defendants/appellants.
SC.278/2001