The Court of Appeal, Enugu Division, yesterday reserved ruling on an application brought before it by Guaranty Trust Bank (GTBank). The bank is seeking to amend its motion of appeal against a judgement given by a Federal High Court, Awka against the bank. At the resumed hearing of the matter yesterday, counsel to GTBank, Chief Wole Olanipekun (SAN) informed the court that the appellant (GTBank) had its notice of appeal against the judgement of the Federal High Court, Awka.
The Awka Federal High Court’s ruling was in favour of Innoson. Olanipekun informed the court that he would like to withdraw the application dated June 22, 2016 and sought the court to grant him leave to do so.
The application for withdrawal of the motion seeking an extension of time to respond to the counter affidavit filed by Innoson against the motion to amend the notice of appeal was opposed by counsel to Innoson Motors and Chief Innocent Chukwuma, Prof. McCarthy Mbadugha. Arguing that the court does not have the jurisdiction to grant hearing to the appellants, Mbadugha maintained that the court should hold the balance between the contending rights of all parties.
He said that in maintaining the balance, the court should note that they (Innoson Motors) have a motion before the court challenging that the applicants cannot be allowed to move any applications before the court since they are yet to comply with a previous order of the court.
He further argued that by Order 80 of the Supreme Court Rules, since the appellant’s appeal has been entered at the Supreme Court, the Court of Appeal lacks the right to adjudicate on it. Responding to Innoson’s argument, counsel to GTBank noted that Mbadugha’s positions were unconstitutional. He maintained that once an application for withdrawal has been made, the applicant can withdraw his application and such an application cannot be opposed. Maintaining that it is within the court’s jurisdiction to grant the leave being sought, Olanipekun argued that the right of appeal is a constitutional right that should not suffer any distraction or nuances of the respondent. Upholding Olanipekun’s argument, the court, led by Justice Helen Ogunwumiju, ruled that by the provision of the 1999 Constitution, an appellant has the right to withdraw its application.
“The application hereby stands withdrawn and struck out,” she ruled. With the application withdrawn, Olanipekun moved a motion praying the court for leave to amend its notice of appeal dated January 28, 2015 challenging the order of the Federal High Court, Awka. This motion was again challenged by counsel to Innoson Motors who argued that where an appeal has been entered at the Supreme Court as in the case at hand, the lower court (Court of Appeal) loses the right to entertain the matter in any sort.
The only jurisdiction the lower court has, he argued, is to transmit all pending applications to the appellate court. Urging the court to disregard Innoson’s argument, GTBank’s counsel argued that what is before the Supreme Court is an appeal on an interlocutory application, which is totally different from the substantive suit being argued by the parties. “A respondent to an appeal does not have the locus standi to ask for a stay of proceedings.
The only party that can ask for stay of execution is an appellant who has an appeal,” he argued. The matter was then adjourned for ruling on a date to be communicated to the parties in the suit.