Sylvanus Mortune V. Alhaji Muhammadu Gambo (1979)

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FATAYI-WILLIAMS, J.S.C.

This is an application for leave to appeal from the decision of the Federal Court of Appeal refusing to order a stay of execution of the order of the High Court of Lagos State made on 5th July, 1978, that the defendant/appellant should return the two passports of the plaintiff/respondent to him within three days from the date of the said order. The High Court had earlier, on 31st August, 1978, to be precise, refused an application for a stay of execution of the same order. In refusing the application for stay, the learned trial Judge observed:-

“Although Superintendent of Police Alfred Sadeh, who I shall refer to hereafter as the ‘3rd deponent’, did not disclose what offence or offences he is now investigating against the respondent, he must have known since he came into this matter that part of the plaintiff/respondent’s claim was the return to the respondent, of the latter’s passports which were said to have been seized on the instruction of the defendant/applicant. Even though the averment of seizure was denied, it was not testified upon at the trial nor did the defendant put up any other defence, namely: that the passports were with the Force C.I.D. Ikoyi or that a criminal case was being investigated against the plaintiff/respondent as the 3rd deponent had stated.”

We were informed by learned counsel for the plaintiff/respondent (and this has not been denied by learned counsel for the defendant/applicant) that while this application was pending in this court, the passports in question were returned to the plaintiff/respondent. The application would, therefore, appear to have been overtaken by that event. That being the case, it seems to us that no useful purpose would be served by giving any further consideration to the application for stay which is accordingly dismissed with costs in favour of the plaintiff/respondent assessed at N25.00.

In the course of his argument before us in support of the application, Chief Williams, who appeared for the defendant/applicant, referred to the following extract from the ruling of the Federal Court of Appeal –

“The trial Judge observed the defence at the trial was not that the passports were withheld because investigations had not been completed and for the applicant to say so now is an afterthought and not bona fide. It is difficult to resist this inference in the circumstances of this case.”
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We then submitted that this finding or determination would create an issue estoppel against the defendant/applicant at the hearing of his main appeal before the Federal Court of Appeal. We do not think so. In our view, what the Federal Court of Appeal said in the extract referred to cannot, and does not, constitute an issue estoppel because it is not a finding or determination in the particular circumstances of the application before it. What the court did, in our view, was merely to indicate, by another observation of its own, its support for the only inference which could be drawn from the pertinent observation made by the learned trial Judge in the course of his own ruling on the application  for stay of execution.

The fact that the point was raised by Chief Williams at all makes it necessary for us to advise that care should be taken, when a court is hearing an interlocutory application, to avoid making any observation in its ruling on that application which might appear to pre-judge the main issue in the proceedings relative to the interlocutory application.

Other Citation: (1979) LCN/2146(SC)