WEMA BANK v. AKS STEEL LTD

CITATION: (2018) LPELR-44549(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 9TH MARCH, 2018Suit No: CA/L/92/2014

Before Their Lordships:

MOHAMMED LAWAL GARBA Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealJAMILU YAMMAMA TUKUR Justice, Court of Appeal

BetweenWEMA BANK PLC - Appellant(s)

AndAKS STEEL LIMITED(Suing by its Court appointed receiver MangerOlusegun Ajayi)

- Respondent(s)

RATIO DECIDENDI

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1. APPEAL - RIGHT OF APPEAL: Whether appeal can lie from an order made ex- parte or with the consent of the parties"Now, Section 14(1) of the Court of Appeal Act provides that:- (1) Where, in the exercise by the High Court of a State or,as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order of decision is made in thecourse of any suit or matter, an appeal shall, by leave of that Court or of the Court Appeal, lie to the Court of Appeal; butno appeal shall lie from any order made ex-parte, or by consent of the parties, or relating only to costs. These provisionsby their plain and express purport, say that the leave of Court is required for an appeal against an interlocutory order ordecision made by the High Court of a State or the Federal High Court in the course of any suit or matter, in the exerciseof its original jurisdiction, and that no appeal shall lie from any order ex parte, or with the consent of the parties orrelating to costs only. We are concerned with the later provisions which, apparently, deny a right of appeal against the exparte order made by the trial Court in the exercise of its original jurisdiction in a case or matter. However, an order madein the course of a matter or suit by the trial Court in the exercise of its original jurisdiction derived from the Constitutionconstitutes, by virtue of Section 318 of the Constitution, a "decision" by that Court, which is defined to mean, in relationto a Court, "any determination of that Court and includes judgment, decree, order, conviction, sentence orrecommendation". See Ushae v. C.O.P. (2005) 11 NWLR (937) 499; Comtech Nigeria Limited v. F.H.A. (2009) 18 NWLR(1173) 358, Abru v. State (2011) 17 NWLR (1275) 1. CPC v. I.N.E.C. (2012) 13 NWLR (1317) 260. Being a decision withinthe context of S. 318 of the Constitution and because the ex-parte order was made for an injunction against theAppellant, Section 241(1) (ii) of the Constitution provides that:- An appeal shall lie from decisions of the Federal HighCourt or a High Court to the Court of Appeal as of right in the following cases:- (f) Decisions made or given by the FederalHigh Court or a High Court - (ii) where an injunction or the appointment of a receiver is granted or refused." The clear andstraight forward intent of the these provisions is that a right of appeal is vested as of right on a party in respect of orfrom a decision of the High Court; Federal and State, where an injunction or the appointment of a receiver is granted orrefused by that Court. For the purpose of the right of appeal vested by the provisions and the definition of "decision" inSection 318 of the Constitution, it does not matter whether or not or if the order, decree, etc, was interlocutory or final orex parte or on notice. In other words, the right of appeal vested by the provisions of Section 241(1)(f)(ii) is exercisable inspite of the nature of the order or decree made by a High Court in the exercise of its original jurisdiction in a case ormatter. This right of appeal vested by the Constitution which, by dint of Section 1(3) thereof, is the supreme law inNigeria which prevails over all or any other laws, cannot be wished or taken away, denied or whittled down by any othersubordinate and inferior law in the country; such as the Court of Appeal Act. Any other subordinate and inferior law orstatute in the country or any provision thereof, which is inconsistent with or contrary to the Constitution or any provisionthereof, shall be void, automatically to the extent of its inconsistency with the Constitution as provided for in Section 1(3)of the Constitution which provides that: "If any other law is inconsistent with the provisions of this Constitution, thisConstitution shall prevail, and that other law shall to the extent of the inconsistency be void." See: Attorney General, AbiaState v. Attorney General of the Federation (2006) to NWLR (1005) 265: IGP v. A.N.P.P. (2007) 18 NWLR (1066) 457;Tanko v. State (2009) 4 NWLR (1131) 430; N.U.E.E. v. B.P.E. (2010) 7 NWLR (1194) 538; HDP v. Obi (2011) 18 NWLR(1275) 80: Nopects Oil & Gas Limited v. Olorunmibe (2012) 10 NWLR (1307) 115. Section 15(1) of the Court of AppealAct, 1976 which had the same provision as Section 14(1) of the extant Court of Appeal Act, 2004 was considered alongwith the provisions of Section 220(1)(b) and (c) of the 1979 Constitution on the right of appeal provided therein, whichhad similar provisions as in Section 241(1) of the 1999 Constitution, in the case of Agu v. Ayalogu (1999) 6 NWLR (606)205. One of the issues considered and decided in the case was whether the provisions of Section 15(1) of the Court ofAppeal Act, 1976 was inconsistent with the provisions of Section 220(1)(b) of the Constitution on the right of appealagainst an order ex parte made by a (the) High Court. After a view of the provisions of the Constitution and the Court ofAppeal Act, the Court stated at page 221 that:- "Now, whereas Section 15(1) (2) clearly denies the applicants in theinstant case right to appeal against the interlocutory, ex parte order of the trial Court, Section 220(b) on the other handhas created a right of appeal notwithstanding the fact that the appeal would be emanating from the ex-parte order of thetrial Court." Then at page 226 concluded that:- "Where ground of involves questions of law alone or when a decision is ona question as to the interpretation or application of the 1979 Constitution, there is a right of appeal whether the decisionis ex-parte or not; whether decision is interlocutory or not these are the provisions of the Constitution of the land. TheCourt of Appeal Act which is inferior to the Constitution cannot alter the Constitution." It was finally decided that Section15(1) of the Court of Appeal Act, runs counter to the provisions of the Constitution and therefore, null and void and of noeffect. See also Lekwot v. Judicial Tribunal (1993) 2 NWLR (276) 410 @ 457. I am not aware of any later decision by theapex Court which set aside or over turned the decision that Section 15(1) of the 1976 (or now Section 14(1) of the Courtof Appeal Act, 2004) is null and void for being inconsistent with the provisions of the Constitution vesting a right ofappeal from a decision of the Federal High Court or State High Court made ex parte in the exercise of its originaljurisdiction in any of the situations provided for by the Constitution. In these premises, the objection to the competenceof the Appellant's appeal on the basis of Section 14(1) of the Court of Appeal Act, 2004 is misconceived andunsustainable because it is inconsistent with the provisions of Section 24(1)(f)(ii) of the 1999 Constitution and so to theextent of its inconsistency, is void and of no legal effect. I also agree with the learned counsel for the Appellant that aright of appeal exists against or from the decision, ex-parte, of the trial Court where the ground involves a question oflaw alone under the provisions of Section 241(1)(b) of the Constitution. As provided for in Section 241(1) of theConstitution, an appeal under any of the situations set out therein was as of right, against or from any decision, ofwhatever nature, of the Federal and State High Court in the exercise of the original jurisdiction derived from and vestedby the Constitution. No leave of Court is therefore required or necessary for the exercise of the right of appeal in any ofthe named situations."Per GARBA, J.C.A. (Pp. 5-11, Paras. A-C) - read in context

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2. APPEAL - RIGHT OF APPEAL: Condition precedent for the exercise of a right of appeal"My Lords, the right of appeal it must always be borne in mind by Courts is a constitutional one and thus sacrosanct,inviolable and must not be lightly fettered with or encumbered in its exercise by the citizen who feels aggrieved with thedecision of a Court. However, by the combined effect of Sections 241, 242 and 243 of the Constitution of Nigeria 1999 asamended, it is a right exercisable only within the purview or confines of the constitutional or statutory provision creatingthe right of appeal. This is so because there is no inherent right of appeal and therefore, a right of appeal must either beconstitutional or statutory to be enjoyed by a party. In law, the right of appeal from the decisions of the High Court to theCourt of Appeal is exercisable only upon the fulfillment of some well defined constitutional preconditions, namely: 1. Theright of appeal can only be exercised by a Party to the proceedings or any other person having an interest in the subjectmatter. 2. For a party or person to exercise the right of appeal, he must show that he is aggrieved by the judgment ordecision. 3. A person aggrieved by a decision is one against whom a decision has been pronounced which has wrongfullydeprived him of something, who is adversely affected by the decision of the Court in that the decision wrongfully refusedhim something, or wrongfully affected his title to something. See Ogunkunle & Ors v. Eternal Sacred Order of theCherubim and Seraphim & Ors (2001) 12 NWLR (Pt. 727) 359. See also Adeleke & Anor v. Oyo State House of Assembly2006, 10 NWLR (Pt. 987) 50; Okoye v. Tobechukwu (2016) LPELR-41508 (CA); Tochukwu Anyanwu v. Emezie Okoroafor &Ors. (2012) LPELR-20832."Per GEORGEWILL, J.C.A. (Pp. 21-23, Paras. E-A) - read in context

3. APPEAL - RIGHT OF APPEAL: Importance of Constitutional right to appeal and whether its exercise can be fettered"I fully subscribe to the reasoning that notwithstanding anything to the contrary in any other law, including Section 14(1)of the Court of Appeal 2004, formerly Section 15(1) of the Court of Appeal Act 1976, the right of appeal as guaranteed bythe Constitution of Nigeria 1999 (as amended) is sacrosanct and inviolable and any such provision curtailing it is to theextent of that inconsistency null and void. See Section 1(3) of the Constitution of Nigeria 1999 (as amended). See alsoAgu v. Ayalogu (1999) 6 NWLR (Pt. 606) 205; Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410 @ p. 457; AttorneyGeneral, Abia State v. Attorney General, Federation (2006) 16 NWLR (Pt. 1005) 265."Per GEORGEWILL, J.C.A. (P. 23,Paras. A-E) - read in context

4. JUDGMENT AND ORDER - ORDER OF COURT: Whether a court can make an unenforceable order"This Court cannot meaningfully grant an order discharging or vacating or to set aside an order or decision that in theeyes of the law, no longer exists as the grant of such an order would confer no practical benefit on the Appellant nor anyuseful legal remedy. Such an order would be in vain and Courts of law neither act in vain nor make orders or grant reliefswhich cannot be enforced, in vain. See C.C.B. Plc v. Okpala (1997) 8 NWLR (518) 673; Nwora v. Nwabueze (2011) 17NWLR (1277) 699: NACB v. Achogyva (2010) 11 NWLR (1205) 339. P.P.A. v. I.N.E.C. (2012) 13 NWLR (1317) 215."PerGARBA, J.C.A. (P. 20, Paras. A-D) - read in context

5. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES): Meaning and nature of the concept of"abuse of Court/judicial process""It is well known that an abuse of a Court process may arise in a variety of infinite ways and manners in the course ofproceedings in a case/cases and may be committed by any of the parties. Situations or circumstances which mayconstitute an abuse of a Court process cannot be quarantined into classification for which hard and fast rules could belaid to apply at all times and in all cases. The peculiar facts and circumstances of case or two (2) cases are the majordeterminants of whether the process of a Court has been abused by any of the parties. Generally however, it may arisewhen a party improperly uses the issue of a judicial process of a Court primarily to irritate and annoy an opponent by forinstance, instituting a multiplicity of actions on the same subject, on the same issues and against the same opponent.Abuse of Court process may also be that a party files a notice of discontinuance in a case in order that he may have hisway in a new suit or to litigate again over identical questions or issues which have already been decided against him by aCourt of competent jurisdiction. Empirically speaking, abuse of Court process is a term applied to a proceeding which iswanting in bona fide, frivolous, vexatious or/and oppressive because it is an improper use of legal and judicial processthat involves some bias, malice and deliberate desire to misuse or to pervert the system of administration of justice. SeeOlutinrin v. Agaka (1998) 6 NWLR (554) 366 @ 375; Saraki v. Kotoye (1992) 9 NWLR (264) 156 @ 188; Okafor v. AttorneyGeneral, Anambra State (1991) 6 NWLR (200) 659; Jonpal v. Afribank (2003) 8 NWLR (822) 290; N.I.M.B. v. UBN Plc.(2004) 12 NWLR (888) 599: Umeh v. Iwu (2008) 8 NWLR (1089) 225; Dingyadi v. I.N.E.C. (No. 2) (2010) 18 NWLR (1224)15; R. Benkay Nigeria Limited v. Cadbury Nigeria Plc (2012) 9 NWLR (1306) 599."Per GARBA, J.C.A. (Pp. 11-13, Paras. E-B)- read in context

6. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES): Power of Court to punish for acts ofabuse of process in the administration of justice"The law is also firmly settled that the Court not only possesses the inherent power, but the duty to prevent, put a stop toand punish for the abuse of its process by any of the parties to a case before it. See The Vessel "Saint Roland" v. Osinloye(1997) 4 NWLR (5000) 387; Ogun v. Akinyelu (1999) 10 NWLR (624) 671: C.B.N. v. Ahmed (2001) 11 NWLR (724) 369;Unifam Ind. Limited v. Oceanic Bank Int. Nig. Ltd. (2005) 3 NWLR (911) 83; Uwazurike v. A.G.F. (2008) 10 NWLR (1096)444, TSA Ind. Ltd. v. F.B.N. Plc (No. 1) (2012) 14 NWLR (1320) 326."Per GARBA, J.C.A. (P. 13, Paras. B-E) - read in context

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7. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES): Instance(s) when abuse of Court processcannot/will not arise"By Order 26, Rule 11 of the trial Court Rules, 2009, any person affected by an order made ex-parte, shall within seven(7) days after service of it, or within such further time as the Court shall allow, apply to the Court by motion, to vary ordischarge it. Then Rule 12 of Order 26 provides that:- "(1) No order made on motion ex-parte shall last for more thanfourteen days after the party or person affected by the order has applied for the order to be varied or discharged or lastfor another fourteen days after application to vary or discharge it has been argued. (2) If a motion to vary or discharge anex-parte order is not taken within fourteen day of its being filed, the ex-parte order shall expired." The provisions of Rules11 and 12 allow an application by a party affected by an order ex parte to apply by way of a motion to the trial Court forthe order to be varied or discharged, and in any circumstance provide for therein the lifespan or duration of the ex parteorder at the expiration of which, the order shall lapse. The combined effect of the provisions of Rules 11 and 12 showsthat an order ex parte is meant to last for a few days until the hearing of the motion to vary or discharge it or if not takenor heard at all. In line with the provisions of Rule 11, the Appellant filed the motion before the trial Court for, inter alia, anorder discharging/and/or vacating all the ex-parte orders in favour of the Respondent on 27th of January, 2012, whichwas just three (3) days after the orders were made on the 24th of January, 2012. The present appeal as stated earlier,was brought on the 7th of February, 2012, apparently while the motion to discharge/vacate the ex-parte orders was stillpending and the orders extant. The reliefs sought by the Appellant in this appeal as contained on the Notice of Appeal,are as follows: "1. An Order setting aside the decision of the Lower Court Coram Okechukwu J., deliverd on 24th January,2012. 2. An Order discharging the Order Ex-parte granted by the Lower Court on the 24th of January, 2012 against theAppellant." Prima facie, the reliefs in the appeal and the relief 1 of the motion filed by the Appellant at the trial on the27th of July, 2011 are the same for the discharge, vacation or setting aside the ex-parte orders made by that Court on24th of January, 2012 in favour of the Respondent. However, the motion before the trial Court contains some other reliefssought among which is one for striking out the suit on ground of lack of jurisdiction on the part of the trial Court toentertain it. The mere fact that the Rules of the trial Court provide for a motion by a person or party affected by an orderex-parte to have the order set aside, has nothing to do with and does affect, in any way howsoever, let alone deprive theperson or party the right to appeal against or from such order ex-parte as vested by the provisions of Section 241(1)(f)(ii) as demonstrated earlier. The exercise of the constitutionally guaranteed right of a party to appeal against thedecision of the trial Court cannot reasonably be said to constitute or amount to an abuse of the process of the appellateCourt merely because the party seeks a relief in the appeal which is similar or even the same as another relief in amotion before the trial Court. The two processes; i.e. the motion before the trial Court and the appeal in this Court aregoverned and regulated by two distinct and different statutory provisions, one merely procedural and the other,substantive and organic in law. The observation by the Hon. Justice G. A. Oguntade, JSC in the case of Edjekpo v. Osia(supra) is apt here, when he said:- "I think with respect, that the submission of the Appellant's Counsel, if upheld wouldtrivialize the importance of a right of appeal conferred by the Constitution of Nigeria on parties to a dispute in a case. Aright of appeal is not a matter of tokenism." This appeal, in relation to the motion filed by the Appellant before the trialCourt on the 27th of January, 2012, does not constitute or amount to an abuse of the process of this Court."Per GARBA,J.C.A. (Pp. 13-17, Paras. E-B) - read in context

8. PRACTICE AND PROCEDURE - ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: WhetherCourt can make pronouncements on academic/hypothetical issues"The entire appeal ceases to present any live issue since the appeal has become mere academic, which Courts of lawnever venture into as such issues are better left for the academics in the classroom. This is so because in law there is noduty on the Court to consider and resolve an academic or hypothetical appeal or issue. In Charles Oke & Anor. v. Dr.Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per Muhammad JSC, had thisto say on this issue: "It is a principle of law long settled that the general attitude of the Courts of law is that they areloathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose."See alsoMrs. Sasan Olley v. Hon. Olakulu Ganuju Tunji & Ors (2013) 10 NWLR CA (1362) 275. See also Olabisi Oyeniyi v. TajudeenKareem & Ors (2012) 20 WRN 91; Chief Adedayo & Anor v. P.D.P. & Ors (2013) 17 NWLR (Pt. 1382) 1; Senator AdulphusIgbeke v. Lady Margeny Okadigbo & Ors (2013) 12 NWLR (Pt. 1368) 225; Trade Bank Plc v. Benilux Nig Ltd (2003) 9NWLR (Pt. 825) 416, see also Ukejianya v. Uchendu (1950) 13 WACA 45; Nkwocha v. Gov. of Anambra State (1984) 1SCNLR 634; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 43) 162. My Lords, when in law a particular point or issueor appeal is said to be merely academic, it means that it has no real relevance or effect any longer on either the outcomeof the appeal or the rights of the parties to the appeal. In other words, the issue or point or appeal has become spent andis no longer of any benefit or value and it is therefore, not worth spending the precious judicial time of this ever busypenultimate Court in the hierarchy of Courts in this County dissipating energy on its merit."Per GEORGEWILL, J.C.A. (Pp.24-26, Paras. D-A) - read in context

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MOHAMMED LAWAL GARBA, J.C.A. (Delivering the

Leading Judgment): This appeal is against ex-parte

orders made by the Federal High Court in Suit No.

FHC/L/CS/33/2012 contained in a Ruling delivered on the

24th of January, 2012, in favour of the Respondent who was

the Applicant/Plaintiff. The Appellant was the Defendant in

the suit and had claimed payment of debt from credit

facilities granted to the Respondent and by the ex parte

orders, the Appellant was restrained from making demands

or further demands/requests for the payment of the debt by

the Respondent and taking steps to enforce any

right/interest pursuant to any debenture, mortgage or any

other security created in connection with the credit

facilities.

Apparently miffed by the grant thereof the orders ex-parte,

the Appellant brought the appeal by the Notice of Appeal

filed on 7th of February, 2012 containing the three (3)

grounds of disenchantment with the Ruling.

In the Appellant's brief filed on the 11th of June, 2015,

deemed on 10th of June, 2015, two (2) issues are submitted

for determination, as follows:-

(i) Whether given the circumstance of the case

presented

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at the Lower Court, the learned Trial Judge was right

or wrong in granting the Ex-parte Interim Order

based on a previous Spent Order - Ground 1.

(ii) Whether the Ex-parte Order made by the Court

below were rightly or wrongly granted having regard

to Appellant’s right to fair hearing and the

Respondent’s failure to place materials below the

Court in support of the urgency of the Ex-Parte

Application - Grounds 2 and 3."

The Respondent in addition and alternative to a preliminary

objection raised and argued in the Respondent's brief filed

on 13th of July, 2015, deemed on 16th of January, 2018, has

also formulated two (2) issues for decision by the Court in

the following terms:-

"1. Whether given the circumstance of the case

presented at the lower Court, the learned trial judge

was right in granting the Ex-parte Interim Order as

applied for by the Respondent.

2. Whether the Ex-parte Orders made by the Court

below were rightly granted having regard to

Appellant’s right to fair hearing."

To complete the filing and settlement of briefs, the

Appellant filed an Appellant's Reply brief on the 10th of

May, 2016,

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also deemed on the 16th of January, 2018, to answer the

preliminary objection and other points raised in the

Respondent's brief.

I would consider the preliminary objection to the

competence of the appeal first in line with established

practice, before a consideration of the merit of the issues

raised for determination.

The grounds of the Respondent's objection to the

competence of the appeal are that by the provisions of

Section 14 of the Court of Appeal Act, there is no appeal

against an ex-parte order by the Lower Court to this Court

and that the appeal is an abuse of the Court process

because the Appellant had applied to the Lower Court to

set aside the ex-parte order at the same time with the

appeal. Fagbola v. Titilayo Plastics Industries Limited

(2005) 2 NWLR (909) 1 @ 5, on the options open to a

party against whom an ex-parte order was made, CBN v.

Ahmed (2001) 11 NWLR (724) 369 @ 408 and Buhari

v. Yabo (2006) 17 NWLR (1007) 162 @ 176 on what

constitutes an abuse of a Court process, were cited and the

Court is urged to strike out the Notice of Appeal for being

incompetent and an abuse of the Court process.

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For the Appellant, it is argued that the appeal is against the

jurisdiction of the Lower Court to make the ex parte order

and the right of the Appellant to fair hearing, vested by the

provisions of Section 241(1)(b) of the Constitution, as a

question of law, which supercedes the provisions of Section

14 of the Court of Appeal Act.

A m o n g o t h e r c a s e s , M a d u b u a c h u k w u v .

Madubuachukwu (2006) 10 NWLR (989) 475 @ 500;

Gen. Electric Co. v. Akande (2010) 18 NWLR (1225)

596 @ 618 and CCB Nigeria Plc v. A-G, Anambra State

(1992) 8 NWLR (261) 528 @ 544 were referred to and it

is maintained that the appeal is as of right since the

grounds are on jurisdiction and constitutional issue of fair

hearing. Edjekpo v. Osia (2007) 5 MJSC, 77 on the

importance of a right of appeal and Section 1 (3) of the

Constitution as well as inter alia, Tanko v. State (2009) 4

NWLR (1131) 430 @ 452 and Onagoruwa v. IGP

(1991) 5 NWLR (193) 593 @ 641 were relied on for the

position and it is further argued that the appeal is not an

abuse of the Court process since it is in exercise of the

right vested by the Constitution.

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The case of Okafor v. Okafor (2000) 11 NWLR (677) 21

@ 32 was cited and the Court is urged to dismiss the

preliminary objection.

Now, Section 14(1) of the Court of Appeal Act provides

that:-

(1) Where, in the exercise by the High Court of a

State or, as the case may be, the Federal High Court

of its original jurisdiction, an interlocutory order of

decision is made in the course of any suit or matter,

an appeal shall, by leave of that Court or of the Court

Appeal, lie to the Court of Appeal; but no appeal shall

lie from any order made ex-parte, or by consent of the

parties, or relating only to costs.

These provisions by their plain and express purport, say

that the leave of Court is required for an appeal against an

interlocutory order or decision made by the High Court of a

State or the Federal High Court in the course of any suit or

matter, in the exercise of its original jurisdiction, and that

no appeal shall lie from any order ex parte, or with the

consent of the parties or relating to costs only. We are

concerned with the later provisions which, apparently, deny

a right of appeal against the ex parte order made by the

trial Court in the exercise of its original jurisdiction in a

case or matter.

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However, an order made in the course of a matter or suit

by the trial Court in the exercise of its original jurisdiction

derived from the Constitution constitutes, by virtue of

Section 318 of the Constitution, a "decision" by that Court,

which is defined to mean, in relation to a Court, "any

determination of that Court and includes judgment, decree,

order, conviction, sentence or recommendation". See

Ushae v. C.O.P. (2005) 11 NWLR (937) 499; Comtech

Nigeria Limited v. F.H.A. (2009) 18 NWLR (1173) 358,

Abru v. State (2011) 17 NWLR (1275) 1. CPC v.

I.N.E.C. (2012) 13 NWLR (1317) 260.

Being a decision within the context of S. 318 of the

Constitution and because the ex-parte order was made for

an injunction against the Appellant, Section 241(1) (ii) of

the Constitution provides that:-

An appeal shall lie from decisions of the Federal High

Court or a High Court to the Court of Appeal as of

right in the following cases:-

(f) Decisions made or given by the Federal High Court

or a High Court -

(ii) where an injunction or the appointment of a

receiver is granted or refused."

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The clear and straight forward intent of the these

provisions is that a right of appeal is vested as of right on a

party in respect of or from a decision of the High Court;

Federal and State, where an injunction or the appointment

of a receiver is granted or refused by that Court. For the

purpose of the right of appeal vested by the provisions and

the definition of "decision" in Section 318 of the

Constitution, it does not matter whether or not or if the

order, decree, etc, was interlocutory or final or ex parte or

on notice. In other words, the right of appeal vested by the

provisions of Section 241(1)(f)(ii) is exercisable in spite of

the nature of the order or decree made by a High Court in

the exercise of its original jurisdiction in a case or matter.

This right of appeal vested by the Constitution which, by

dint of Section 1(3) thereof, is the supreme law in Nigeria

which prevails over all or any other laws, cannot be wished

or taken away, denied or whittled down by any other

subordinate and inferior law in the country; such as the

Court of Appeal Act. Any other subordinate and inferior law

or statute in the country or any provision thereof, which is

inconsistent with or contrary to the Constitution or any

provision thereof,

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shall be void, automatically to the extent of its

inconsistency with the Constitution as provided for in

Section 1(3) of the Constitution which provides that:

"If any other law is inconsistent with the provisions of

this Constitution, this Constitution shall prevail, and

that other law shall to the extent of the inconsistency

be void."

See: Attorney General, Abia State v. Attorney General

of the Federation (2006) to NWLR (1005) 265: IGP v.

A.N.P.P. (2007) 18 NWLR (1066) 457; Tanko v. State

(2009) 4 NWLR (1131) 430; N.U.E.E. v. B.P.E. (2010)

7 NWLR (1194) 538; HDP v. Obi (2011) 18 NWLR

(1275) 80: Nopects Oil & Gas Limited v. Olorunmibe

(2012) 10 NWLR (1307) 115. Section 15(1) of the Court

of Appeal Act, 1976 which had the same provision as

Section 14(1) of the extant Court of Appeal Act, 2004 was

considered along with the provisions of Section 220(1)(b)

and (c) of the 1979 Constitution on the right of appeal

provided therein, which had similar provisions as in Section

241(1) of the 1999 Constitution, in the case of Agu v.

Ayalogu (1999) 6 NWLR (606) 205.

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One of the issues considered and decided in the case was

whether the provisions of Section 15(1) of the Court of

Appeal Act, 1976 was inconsistent with the provisions of

Section 220(1)(b) of the Constitution on the right of appeal

against an order ex parte made by a (the) High Court. After

a view of the provisions of the Constitution and the Court of

Appeal Act, the Court stated at page 221 that:-

"Now, whereas Section 15(1) (2) clearly denies the

applicants in the instant case right to appeal against

the interlocutory, ex parte order of the trial Court,

Section 220(b) on the other hand has created a right

of appeal notwithstanding the fact that the appeal

would be emanating from the ex-parte order of the

trial Court."

Then at page 226 concluded that:-

"Where ground of involves questions of law alone or

when a decision is on a question as to the

interpretation or application of the 1979

Constitution, there is a right of appeal whether the

decision is ex-parte or not; whether decision is

interlocutory or not these are the provisions of the

Constitution of the land. The Court of Appeal Act

which is inferior to the Constitution cannot alter the

Constitution."

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It was finally decided that Section 15(1) of the Court of

Appeal Act, runs counter to the provisions of the

Constitution and therefore, null and void and of no effect.

See also Lekwot v. Judicial Tribunal (1993) 2 NWLR

(276) 410 @ 457.

I am not aware of any later decision by the apex Court

which set aside or over turned the decision that Section

15(1) of the 1976 (or now Section 14(1) of the Court of

Appeal Act, 2004) is null and void for being inconsistent

with the provisions of the Constitution vesting a right of

appeal from a decision of the Federal High Court or State

High Court made ex parte in the exercise of its original

jurisdiction in any of the situations provided for by the

Constitution.

In these premises, the objection to the competence of the

Appellant's appeal on the basis of Section 14(1) of the

Court of Appeal Act, 2004 is misconceived and

unsustainable because it is inconsistent with the provisions

of Section 241(1)(f)(ii) of the 1999 Constitution and so to

the extent of its inconsistency, is void and of no legal effect.

I also agree with the learned counsel for the Appellant that

a right of appeal exists against or from the decision, ex-

parte,

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of the trial Court where the ground involves a question of

law alone under the provisions of Section 241(1)(b) of the

Constitution. As provided for in Section 241(1) of the

Constitution, an appeal under any of the situations set out

therein was as of right, against or from any decision, of

whatever nature, of the Federal and State High Court in

the exercise of the original jurisdiction derived from and

vested by the Constitution. No leave of Court is therefore

required or necessary for the exercise of the right of appeal

in any of the named situations.

The Respondent has also argued that the appeal is an

abuse of the Court process on the ground that at the time it

was brought, the Appellant had a pending motion before

the trial Court for the discharge of the ex-parte order in

question.

It is well known that an abuse of a Court process may arise

in a variety of infinite ways and manners in the course of

proceedings in a case/cases and may be committed by any

of the parties. Situations or circumstances which may

constitute an abuse of a Court process cannot be

quarantined into classification for which hard and fast rules

could be laid to apply at all times and in all cases.

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The peculiar facts and circumstances of case or two (2)

cases are the major determinants of whether the process of

a Court has been abused by any of the parties.

Generally however, it may arise when a party improperly

uses the issue of a judicial process of a Court primarily to

irritate and annoy an opponent by for instance, instituting a

multiplicity of actions on the same subject, on the same

issues and against the same opponent. Abuse of Court

process may also be that a party files a notice of

discontinuance in a case in order that he may have his way

in a new suit or to litigate again over identical questions or

issues which have already been decided against him by a

Court of competent jurisdiction. Empirically speaking,

abuse of Court process is a term applied to a proceeding

which is wanting in bona fide, frivolous, vexatious or/and

oppressive because it is an improper use of legal and

judicial process that involves some bias, malice and

deliberate desire to misuse or to pervert the system of

administration of justice. See Olutinrin v. Agaka (1998)

6 NWLR (554) 366 @ 375; Saraki v. Kotoye (1992) 9

NWLR (264) 156 @ 188;

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Okafor v. Attorney General, Anambra State (1991) 6

NWLR (200) 659; Jonpal v. Afribank (2003) 8 NWLR

(822) 290; N.I.M.B. v. UBN Plc. (2004) 12 NWLR

(888) 599: Umeh v. Iwu (2008) 8 NWLR (1089) 225;

Dingyadi v. I.N.E.C. (No. 2) (2010) 18 NWLR (1224)

15; R. Benkay Nigeria Limited v. Cadbury Nigeria Plc

(2012) 9 NWLR (1306) 599.

The law is also firmly settled that the Court not only

possesses the inherent power, but the duty to prevent, put

a stop to and punish for the abuse of its process by any of

the parties to a case before it. See The Vessel "Saint

Roland" v. Osinloye (1997) 4 NWLR (5000) 387; Ogun

v. Akinyelu (1999) 10 NWLR (624) 671: C.B.N. v.

Ahmed (2001) 11 NWLR (724) 369; Unifam Ind.

Limited v. Oceanic Bank Int. Nig. Ltd. (2005) 3 NWLR

(911) 83; Uwazurike v. A.G.F. (2008) 10 NWLR (1096)

444, TSA Ind. Ltd. v. F.B.N. Plc (No. 1) (2012) 14

NWLR (1320) 326.

By Order 26, Rule 11 of the trial Court Rules, 2009, any

person affected by an order made ex-parte, shall within

seven (7) days after service of it, or within such further

time as the Court shall allow, apply to the Court by motion,

to vary or discharge it. Then Rule 12 of Order 26 provides

that:-

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"(1) No order made on motion ex-parte shall last for

more than fourteen days after the party or person

affected by the order has applied for the order to be

varied or discharged or last for another fourteen days

after application to vary or discharge it has been

argued.

(2) If a motion to vary or discharge an ex-parte order

is not taken within fourteen day of its being filed, the

ex-parte order shall expired."

The provisions of Rules 11 and 12 allow an application by a

party affected by an order ex parte to apply by way of a

motion to the trial Court for the order to be varied or

discharged, and in any circumstance provide for therein the

lifespan or duration of the ex parte order at the expiration

of which, the order shall lapse.

The combined effect of the provisions of Rules 11 and 12

shows that an order ex parte is meant to last for a few days

until the hearing of the motion to vary or discharge it or if

not taken or heard at all.

In line with the provisions of Rule 11, the Appellant filed

the motion before the trial Court for, inter alia, an order

discharging/and/or vacating all the ex-parte orders in

favour of the Respondent on 27th of January,

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2012, which was just three (3) days after the orders were

made on the 24th of January, 2012.

The present appeal as stated earlier, was brought on the

7th of February, 2012, apparently while the motion to

discharge/vacate the ex-parte orders was still pending and

the orders extant. The reliefs sought by the Appellant in

this appeal as contained on the Notice of Appeal, are as

follows:

"1. An Order setting aside the decision of the Lower

Court Coram Okechukwu J., deliverd on 24th January,

2012.

2. An Order discharging the Order Ex-parte granted

by the Lower Court on the 24th of January, 2012

against the Appellant."

Prima facie, the reliefs in the appeal and the relief 1 of the

motion filed by the Appellant at the trial on the 27th of July,

2011 are the same for the discharge, vacation or setting

aside the ex-parte orders made by that Court on 24th of

January, 2012 in favour of the Respondent.

However, the motion before the trial Court contains some

other reliefs sought among which is one for striking out the

suit on ground of lack of jurisdiction on the part of the trial

Court to entertain it.

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The mere fact that the Rules of the trial Court provide for a

motion by a person or party affected by an order ex-parte

to have the order set aside, has nothing to do with and does

affect, in any way howsoever, let alone deprive the person

or party the right to appeal against or from such order ex-

parte as vested by the provisions of Section 241 (1)(f)(ii) as

demonstrated earlier. The exercise of the constitutionally

guaranteed right of a party to appeal against the decision

of the trial Court cannot reasonably be said to constitute or

amount to an abuse of the process of the appellate Court

merely because the party seeks a relief in the appeal which

is similar or even the same as another relief in a motion

before the trial Court. The two processes; i.e. the motion

before the trial Court and the appeal in this Court are

governed and regulated by two distinct and different

statutory provisions, one merely procedural and the other,

substantive and organic in law. The observation by the

Hon. Justice G. A. Oguntade, JSC in the case of Edjekpo v.

Osia (supra) is apt here, when he said:-

"I think with respect, that the submission of the

Appellant's Counsel, if upheld would trivialize

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the importance of a right of appeal conferred by the

Constitution of Nigeria on parties to a dispute in a

case. A right of appeal is not a matter of tokenism."

This appeal, in relation to the motion filed by the Appellant

before the trial Court on the 27th of January, 2012, does

not constitute or amount to an abuse of the process of this

Court.

In the result, the objection to the competence of the appeal

fails, is overruled and dismissed.

I would now turn back to the issues and the merit of the

appeal.

However, before embarking on a consideration of issues

and arguments canvassed by learned counsel for the

parties to the appeal, it is pertinent to point out that both

the grounds of the appeal and issues raised therefrom are a

challenge to and questions on the validity of the ex-parte

order made by the trial Court on the 24th of January, 2012

and the reliefs sought on the Notice of Appeal, as set out

earlier, seek orders from the Court setting aside the

decision of 24th of January, 2012, which essentially

contained the ex-parte orders of injunction against the

Appellant and discharging the ex parte order.

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I have also demonstrated while considering the objection

to the competence of the appeal, that by virtue of Rule 12

of Order 26 of the Rules of the trial Court, under which the

ex parte order was made on the 24th of January, 2012, it

was to last no more than fourteen (14) days after the party

or person affected by it has applied for it to be varied or

discharged or for another fourteen (14) days after the

application to vary or discharge the order, was argued. In

case the application to vary or discharge was not taken

within fourteen (14) days of its being filed, the ex-parte

order shall lapse.

From the provisions of Rule 12, the ex-parte order of

injunction made against the Appellant on the 24th of

January, 2012, by the trial Court, had automatically lapsed,

expired and no longer in existence by the happening of any

of the events listed therein at or by the time this appeal

was entered in the Court by the transmission to and receipt

of the Record of Appeal deemed on the 5th of May, 2015.

Put another way, by the operation of the provisions of Rule

12, the ex-parte order made by the trial Court against the

Appellant on the 24th of January, 2012 had lapsed,

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ceased to exist or expired without any formality that

needed to be done by the date the Record of Appeal was

transmitted to this Court on 5th of February, 2014 and

regularized by the Court on the 5th of May, 2015. The

provisions of Rule 12, by the use of the word "shall" in both

Sub-rules (1) and (2), are mandatory to be observed and

take or go into automatic and immediate effect on the

happening of any of the events or situations set out therein

without the need for anything else to be done either by the

trial Court or any of the parties. See Katto v. C.B.N.

(1991) NWLR (214) 126, Maiwada v. F.B.N. Plc (1997)

4 NWLR (500) 497; Bakoshi v. C. N. Staff (2004) 15

NWLR (896) 208. Onohie v. Odogwu (2006) 2 SCNJ.

96.

Because the appeal challenges the validity of a non-existent

order at the time the appeal was entered in the Court, even

though it existed at the time of filing the Notice of Appeal

on 7th of February, 2012, and the only relief sought from

the Court in the appeal is an order to set aside or/and

discharge the said non-existent ex parte order, the appeal

is thereby rendered academic since order/decision against

which it

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was brought is no longer live, but is dead by expiration or

effluxion of time pursuant to the provisions of the Rules

under which it was made or issued. This Court cannot

meaningfully grant an order discharging or vacating or to

set aside an order or decision that in the eyes of the law, no

longer exists as the grant of such an order would confer no

practical benefit on the Appellant nor any useful legal

remedy. Such an order would be in vain and Courts of law

neither act in vain nor make orders or grant reliefs which

cannot be enforced, in vain. See C.C.B. Plc v. Okpala

(1997) 8 NWLR (518) 673; Nwora v. Nwabueze (2011)

17 NWLR (1277) 699: NACB v. Achogyva (2010) 11

NWLR (1205) 339. P.P.A. v. I.N.E.C. (2012) 13 NWLR

(1317) 215.

The automatic lapse or expiration of the order or decision

sought to be discharged, vacated or set aside by this

appeal, by the operation of the Rules of the trial Court

under which it was made, has overtaken the reliefs sought

in the appeal to render a consideration of the merit of the

issues raised therein, a fruitless exercise.

In the above circumstances, the Court would not and

should not waste its precious judicial time by embarking on

a

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fruitless exercise by the consideration of the merit of the

issues whose substance and value has completely been

wiped out by the expiration or lapse of the order/decision,

the validity of which they seek to challenge.

The appeal is dismissed for the aforenamed reasons.

Parties shall bear their costs of prosecuting the appeal.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have read

before now a draft of the judgment just delivered by my

learned brother, MOHAMMED LAWAL GARBA, JCA., and I

am in complete agreement with the reasons adroitly

marshalled out and the inescapable conclusion reached

therein which I hereby adopt as mine.

My Lords, the right of appeal it must always be borne in

mind by Courts is a constitutional one and thus sacrosanct,

inviolable and must not be lightly fettered with or

encumbered in its exercise by the citizen who feels

aggrieved with the decision of a Court. However, by the

combined effect of Sections 241, 242 and 243 of the

Constitution of Nigeria 1999 as amended, it is a right

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exercisable only within the purview or confines of the

constitutional or statutory provision creating the right of

appeal. This is so because there is no inherent right of

appeal and therefore, a right of appeal must either be

constitutional or statutory to be enjoyed by a party. In law,

the right of appeal from the decisions of the High Court to

the Court of Appeal is exercisable only upon the fulfillment

of some well defined constitutional preconditions, namely:

1. The right of appeal can only be exercised by a Party

to the proceedings or any other person having an

interest in the subject matter.

2. For a party or person to exercise the right of

appeal, he must show that he is aggrieved by the

judgment or decision.

3. A person aggrieved by a decision is one against

whom a decision has been pronounced which has

wrongfully deprived him of something, who is

adversely affected by the decision of the Court in that

the decision wrongfully refused him something, or

wrongfully affected his title to something.

See Ogunkunle & Ors v. Eternal Sacred Order of the

Cherubim and Seraphim & Ors (2001) 12 NWLR (Pt.

727) 359. See also Adeleke & Anor v. Oyo State House

of Assembly 2006, 10 NWLR

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(Pt. 987) 50; Okoye v. Tobechukwu (2016)

LPELR-41508 (CA); Tochukwu Anyanwu v. Emezie

Okoroafor & Ors. (2012) LPELR-20832.

I fully subscribe to the reasoning that notwithstanding

anything to the contrary in any other law, including Section

14(1) of the Court of Appeal 2004, formerly Section 15(1) of

the Court of Appeal Act 1976, the right of appeal as

guaranteed by the Constitution of Nigeria 1999 (as

amended) is sacrosanct and inviolable and any such

provision curtailing it is to the extent of that inconsistency

null and void. See Section 1(3) of the Constitution of

Nigeria 1999 (as amended). See also Agu v. Ayalogu

(1999) 6 NWLR (Pt. 606) 205; Lekwot v. Judicial

Tribunal (1993) 2 NWLR (Pt. 276) 410 @ p. 457;

Attorney General, Abia State v. Attorney General,

Federation (2006) 16 NWLR (Pt. 1005) 265.

Truly, while the Appellant has and had indeed rightly

exercised his right of appeal against the ex-parte order of

injunction made against him by the Court below on

24/1/2012, notwithstanding the provisions of Section 14(1)

of the Court of Appeal Act 2004, which is inconsistent with

the

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provisions of Section 241(1)(b) of the Constitution of

Nigeria 1999 (as amended) and thus null and void to the

extent of the inconsistency, the order made ex-parte has by

virtue of Order 26 Rule 12(1) and (2) of the Federal High

Court (Civil Procedure) Rules 2009, had only a life span of

14 days and upon expiration of the 14 days becomes

automatically vacated whether or not it was formally

discharged by the Court below.

In the circumstances, and as eloquently demonstrated in

the lead judgment, the ex-parte order of the Court below,

which is the subject matter of this appeal, having long

expired by operation of law as at 7th February 2012 the

crucial issue and the main essence of this appeal has

become spent. The entire appeal ceases to present any live

issue since the appeal has become mere academic, which

Courts of law never venture into as such issues are better

left for the academics in the classroom. This is so because

in law there is no duty on the Court to consider and resolve

an academic or hypothetical appeal or issue. In Charles

Oke & Anor. v. Dr. Rahman Mimiko & Ors (2013) All

FWLR (Pt. 693) 1853, the full Court of the Supreme

Court per Muhammad

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JSC, had this to say on this issue:

"It is a principle of law long settled that the general

attitude of the Courts of law is that they are loathe in

making pronouncements on academic/hypothetical

issues as it does not serve any useful purpose."

See also Mrs. Sasan Olley v. Hon. Olakulu Ganuju

Tunji & Ors (2013) 10 NWLR CA (1362) 275. See also

Olabisi Oyeniyi v. Tajudeen Kareem & Ors (2012) 20

WRN 91; Chief Adedayo & Anor v. P.D.P. & Ors (2013)

17 NWLR (Pt. 1382) 1; Senator Adulphus Igbeke v.

Lady Margeny Okadigbo & Ors (2013) 12 NWLR (Pt.

1368) 225; Trade Bank Plc v. Benilux Nig Ltd (2003)

9 NWLR (Pt. 825) 416, see also Ukejianya v. Uchendu

(1950) 13 WACA 45; Nkwocha v. Gov. of Anambra

State (1984) 1 SCNLR 634; Eperokun v. University of

Lagos (1986) 4 NWLR (Pt. 43) 162.

My Lords, when in law a particular point or issue or appeal

is said to be merely academic, it means that it has no real

relevance or effect any longer on either the outcome of the

appeal or the rights of the parties to the appeal. In other

words, the issue or point or appeal has become spent and is

no longer of any benefit or value and it is therefore, not

worth

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spending the precious judicial time of this ever busy

penultimate Court in the hierarchy of Courts in this County

dissipating energy on its merit. I agree therefore, that there

is nothing further of any utilitarian value in this appeal and

this appeal therefore fails. Consequently, this appeal is also

dismissed by me and I shall abide by the order as made in

the lead judgment, including the order as to no cost.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before now

the lead judgment just delivered by my learned brother

MOHAMMED LAWAL GARBA, JCA, and I agree with the

reasoning and conclusion contained in the judgment.

I also dismiss the appeal in terms of the lead judgment.

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Appearances:

Not represented For Appellant(s)

Damola Adewale For Respondent(s)

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