VAN LARE J.A.: We are of opinion that the learned judge opens himself to attack from many points. It is unnecessary to go into details of the reasons, which are vulnerable, given by him for reviewing the judgment he had previously delivered. It is sufficient to say that
(i) The learned judge had no power to review any judgment from which an appeal had been preferred. He erred in law when he said that the mere filing of notice of appeal did not render the court below functus officio until an appeal was actually pending before the Court of Appeal. By so holding, the learned judge omitted to consider the effect of Rule 11 (3) of the Supreme Court (Court of Appeal) Rules, 1957, as follows:— “An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the Court below”;
(ii) Even if no appeal had been preferred, all that was sought from the learned judge upon the motion (brought under Order 39, r. 8 (3)) was an order for special leave to apply fo…