ADORSU AND OTHERS v. SOKPOLI

JUDGMENT OF APATU PLANGE J.

On 28 May 1982, the defendants herein filed a motion in this court for an order that the plaintiff should provide substantial cash security or enter into a bond with justified sureties to secure the payment of any costs that may be awarded against him in this action. The application was brought under the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 65, rr. 4 and 5 and Order 52, r. 1. Counsel for the plaintiff objected to the application on the grounds that under Order 30, r. 5, since the application is being brought after summons for directions, it should have been brought by summons and not by way of motion. He therefore submitted that the [p.1135] application is incompetent and ought to be struck out. Counsel for the defendants in reply submitted that under Order 65, rr. 4 and 5, there is no form provided by which such an application can be brought. He argued that the absurdity of the objection means that an application for interim injunction after summons for directions must also be by way of summons and this is not the procedure in the courts. He therefore submitted that the application before the court is proper.

Now Order 30, r. 5 reads as follows:

"5. Any application subsequently to the original summons and before judgment for any directions as to any interlocutory matter or thing by any party shall be made under the summons by two clear days' notice to the other party stating the grounds of the application."

It is not in dispute that at the time the defendants filed their instant application in respect of an interlocutory matter, the summons for directions had already been taken but judgment in the case had not been pronounced. Under Order 30, r. 5 therefore this application should have been brought by way of summons.

Counsel for the defendant also referred the court to Order 52, r. 1. This Order reads:

"1. Where by these rules any application is authorised to be made to the Court or a Judge, such application if made to a judge in Court, shall be made by motion."

He argued that since Order 65, rr. 4 and 5 are silent on the form the application for security for costs should take and since the application is to a judge in court he was perfectly entitled to bring the application by way of motion.

The New Osborn's Concise Law Dictionary (6th ed.) defines motion as follows:

"An application to a court or a judge for an order directing something to be done in the applicant's favour. Ordinarily a motion