In a decision handed down on Thursday 18th August 2016, a full panel of Abuja division of the Court of Appeal seemed to have taken a novel but progressive position on interlocutory appeals when the court had the singular opportunity chance of interpreting the provision of Order 4 Rules 10 and 11 of the Court of Appeal Rules 2011 (which is impair materia with 2016 rules).
A proper understanding of Ekpe, JCA's holding in the case can only best be appreciated in the light of the facts of the case which decided one of the battles for the governorship seat in Abia State.
In Suit No. FHC/ABJ/CS/71/2016, the 1st Respondent (Dr. Sampson Uchechukwu Ogah) approached the Federal High Court sitting in Abuja for declaration that the Appellant (Dr. Okezie Victor Ikpeazu) was not eligible or qualified to participate in the gubernatorial election conducted in Abia State in 2014 because he submitted false information to INEC concerning payment of tax and its assessment, inter alia.
After hearing the parties, Okon Abang, J. gave judgement to Dr. Ogah (the 1st Respondent) on the 27th day of June 2016 consequent upon which the Appellant filed his Notice of Appeal on the 1st day of July 2016 with Appeal No. CA/A/390/2016.
Upon delivery of the judgement, the Appellant filed a Motion for stay of execution before proceeding to compile and transmit the record of appeal. When on the 8th day of July 2016, Counsel for the Appellant (Chief Wole Olanipekun, SAN) and the 1st Respondent's Counsel (Dr. Alex Iziyon, SAN) appeared before the Federal High Court, the former informed the court that, the record of appeal had been transmitted and urged the court to transfer proceedings before it to the Court of Appeal since it was fully seised of the matter.
Dr. Alex Iziyon, on his own part, had an application seeking to set aside an order of the High Court of Abia State for being an abuse and he also sought a contempt order.
While Chief Olanipekun argued that, since appeal had been entered, the Federal High Court was bereft of jurisdiction, Dr. Iziyon urged the court to hear the pending application for contempt albeit oral (as borne by the Court of Appeal's judgement).
However, after hearing both learned silks, Abang, J. disagreed with them and suo motu adjourned all applications to abide the outcome of the main appeal in CA/A/390/2016; in other words, the Federal High Court would hear the applications before it upon conclusion of the pending appeal.
Again not unexpectedly, Dr. Victor Ikpeazu (the incumbent Governor of Abia State) appealed the Federal High Court's adjournment of the pending applications which appeal led to the judgement under review.
Before delving into the crux of the learned Justices' decision, it is desirable to set out the relevant ground of appeal as distilled by the Appellant thus:
"The learned trial judge erred in law and came to a perverse decision by holding that Order 4 Rules 10 and 11 of the Court of Appeal Rules 2011 only apply to final and not interlocutory to continue with the proceeding before him after the Court of Appeal has been fully seised of the entire proceedings."
Not minding the fact that the appeal was already academic at the time it came up for hearing, since the previous appeal number CA/A/390/2016 had already been resolved in favour of Dr. Ikpeazu, for the purpose of resolving the knotty and to-a-large extent, novel issues raised in the appeal, the Court of Appeal nevertheless graciously empaneled 5 Justices of the court to settle the issues, for whatever it was worth, at the Court of Appeal level of judicial hierarchy.
On whether a lower court still possesses jurisdiction to hear a substantive matter during the pendency of interlocutory appeal, the Abuja division of the court, per Philomena Ekpe, JCA held thus:
"I am indeed not enthused by that decision of the trial court. It appears that the lower court has made a somersault of the law and his decision to continue until the application based on a final decision of a lower court is indeed most appropriate. In an application against a final decision, once the appeal is entered in the appellate court, there is indeed nothing before that court to be heard or determined as the records would have left the court below having been transmitted to the appellate court. I do not agree with the learned senior that there is no distinction between interlocutory and final decisions as envisaged in the rules. It merely stands to reason that the lower court could have jurisdiction to continue with the substantive suit even when an interlocutory appeal is pending in the appellate court. (Emphasis mine)
In his lordship's concurring judgement, Abubakar Datti Yahaya, JCA held thus:
"Once an appeal is entered in this court, all courts below should hands off. When a court makes a ruling in the course of hearing a substantive suit, a party dissatisfied may appeal it. The record in respect of the ruling is then transmitted to the Court of Appeal for determination once that is done, the court will cease to have the jurisdiction in respect of the subject of the ruling but would have jurisdiction to continue with the substantive suit as the record of it has not been transmitted to the Court of Appeal. (Emphasis mine)
From the foregoing decision, it appears the Court of Appeal has, by its interpretation, bifurcated entry of interlocutory appeals from final appeals vis a vis the effect they have on a lower court's jurisdiction to continue to entertain a case at a any given stage.
Happily, it is hoped that, the unscuttled reliance on this 2016 decision of a full panel of the Court of Appeal will represent a lasting panacea to the scourge of delay in justice-delivery in Nigeria which is partly attributable to incessant interlocutory appeals with their attendant stoppage of lower courts' proceeding.
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