- Says defendants cannot use variation application to overturn earlier ruling
Wale Igbintade
Justice Akintayo Aluko of the Federal High Court sitting in Lagos has dismissed an application by Petrocam Trading Nigeria Limited and other defendants seeking to vary an order requiring them to provide a bank guarantee or bond as security for a disputed N9.05 billion claim.
Justice Aluko held that the application, filed on July 15, 2026, constituted an abuse of the process of the court because it was, in substance, an attempt to indirectly discharge, set aside or overturn an earlier ruling delivered after all the parties had been heard.
The judge held that the defendants could not employ an application for variation to invite the same court to revisit a substantive decision it had already made after hearing the parties on the merits.
The ruling arose from a dispute in which the claimant sought to preserve funds allegedly owed to it by Petrocam and the other defendants.
Justice Chukwujekwu Aneke had earlier granted an interim injunction on March 30, 2026, restraining dealings with the defendants’ accounts to the extent of the claimant’s alleged N9,057,511,855.63 claim.
Following the defendants’ challenge to the interim order, Justice Aneke, in a considered ruling delivered on May 4, 2026, refused to discharge the order but modified the arrangement by giving the defendants an opportunity to secure the disputed claim with a bond or guarantee from a reputable bank.
Specifically, the court directed the defendants to provide a bond or guarantee for N9,511,185,353.53 and required the claimant to give an undertaking as to damages.
It was against this background that the defendants filed the latest application seeking, among other reliefs, an extension of time within which to comply with the conditions imposed by the May 4 ruling and an order varying those conditions by substituting the requirement for a bond or guarantee with another form of undertaking.
The application was heard on August 27, 2026, after senior counsel for the parties adopted their respective written addresses.
The central issue before Justice Aluko was whether the circumstances relied upon by the defendants justified varying the conditions imposed in the May 4 ruling.
In resolving the issue, the judge rejected the defendants’ reliance on Order 26 Rule 9(1) and (2) of the Federal High Court (Civil Procedure) Rules 2019 as the legal basis for the application.
Justice Aluko held the provision relied upon concerned the court’s power to vary or discharge an order made on an ex parte application.
According to the judge, however, the order the defendants sought to vary was no longer an ex parte order.
The court noted that although the initial order of March 30, 2026 was made following an ex parte application, the position changed after the defendants challenged the order and the court heard both sides before delivering its considered ruling on May 4.
Justice Aluko held that the May 4 ruling was therefore the product of a contested proceeding in which the parties had been heard and could no longer properly be characterised as an order obtained ex parte.
The judge said the court had already exercised its discretion in the May 4 ruling by modifying the interim arrangement and giving the defendants an opportunity to secure the claimant’s interest through a bank guarantee or bond.
The court consequently rejected the argument that Order 26 Rule 9 could be invoked to reopen the issue.
Justice Aluko agreed with the claimant’s counsel that the May 4 ruling had effectively transformed the character of the earlier ex parte order.
He held the March 30 order, which was initially made ex parte, had assumed the status of an inter partes order after the court heard the defendants’ application and delivered its considered ruling on May 4.
The court therefore concluded that the power to vary an order made on an ex parte application could not be deployed to revisit the May 4 ruling.
In attempt to circumvent earlier ruling Justice Aluko further found that the defendants’ application amounted to an indirect attempt to discharge the May 4 order.
The judge noted that the defendants had previously sought to discharge the March 30 interim injunction and that the court had considered and determined that application in its May 4 ruling.
By seeking, in the latest application, to remove the condition imposed by the May 4 ruling, the defendants were effectively seeking the same relief through another procedural route.
The judge described the approach as an abuse of the process of the court.
The court also rejected the defendants’ argument that their counterclaim provided sufficient grounds for discharging or varying the order.
Justice Aluko held that the existence of a counterclaim did not, by itself, invalidate the claimant’s right to seek preservation of its alleged claim pending determination of the substantive dispute.
The judge explained that the purpose of an interlocutory injunction is to preserve the subject matter of litigation and prevent the eventual judgment of the court from being rendered nugatory.
In the instant case, the court said the March 30 order, as subsequently modified by the May 4 ruling, was intended to secure the claimant’s alleged N9.05 billion claim pending determination of the substantive proceedings.
There was therefore no proper basis, the court held, for the defendants to contend that the order should be discharged merely because they had a counterclaim against the claimant.
Undertaking as to damages Justice Aluko also considered the undertaking as to damages required of the claimant.
The judge explained that such an undertaking was intended to protect a party against whom an interlocutory injunction had been granted in the event that the injunction was subsequently found to have caused compensable loss or damage.
The undertaking, he said, enabled the court, where appropriate, to compensate a party that suffered loss as a result of an injunction that ought not to have been granted.
Justice Aluko noted that the May 4 ruling had already directed the claimant to provide an undertaking as to damages, and that the defendants had not demonstrated any sufficient basis for replacing or overturning the conditions imposed by that ruling.
The court also rejected the defendants’ attempt to use the present proceedings to obtain what amounted to a review of its earlier decision.
Justice Aluko stressed that a court of coordinate jurisdiction does not ordinarily possess the power to sit on appeal over its own decision.
The judge referred to the established principle that the appropriate forum for challenging a decision of a court of coordinate jurisdiction is an appellate court, except in recognised circumstances, such as where the original decision was made without jurisdiction.
The court noted that the defendants had already appealed against the May 4 ruling.
Justice Aluko therefore held that, having invoked the appellate jurisdiction of the Court of Appeal, the defendants could not simultaneously ask the trial court to review the same decision through a fresh application for variation.
Allowing such a procedure, the judge held, would effectively permit a litigant to circumvent the appellate process by asking the trial court to reconsider and reverse a decision that was already the subject of an appeal.
The court consequently held that the July 15 application was incompetent and constituted an abuse of the process of the court.
Justice Aluko accordingly dismissed the application.
The ruling leaves intact the conditions imposed by the court in its May 4, 2026 ruling, including the requirement that the defendants provide a bank guarantee or bond as security for the disputed claim pending determination of the substantive suit.
The decision, however, did not determine the underlying dispute over the alleged debt.
The substantive issues concerning the validity and quantum of the claimant’s claim, the defendants’ counterclaim and the parties’ respective allegations remain for determination in the main proceedings.
The defendants had maintained in their earlier proceedings that the claimant’s demand was disputed and that the freezing of their accounts could adversely affect their business operations.
They also challenged aspects of the alleged indebtedness and relied on their counterclaim in seeking relief against the claimant.
Their counterclaim includes allegations of wrongful and excessive charges and seeks substantial monetary relief against the claimant.
The claimant, on the other hand, maintains that the funds were required to preserve its interest pending determination of the substantive dispute.
Justice Aluko’s latest ruling did not resolve those competing substantive claims. Rather, it was confined to the defendants’ attempt to vary the conditions imposed by the court in its earlier ruling.
The court ultimately found that the defendants had adopted an impermissible procedural route to achieve what amounted to a review or discharge of the May 4 decision and dismissed the application for abuse of the process of the court.