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AGOM-EZE v. UMAHI & ORS (2022)

AGOM-EZE v. UMAHI & ORS

(2022)LCN/16109(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, September 30, 2022

CA/E/222/2022

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

PRINCESS ANN NWANYIBUIFE AGOM-EZE APPELANT(S)

And

1. NWAEZE DAVID UMAHI 2. ALL PROGRESSIVE CONGRESS (APC) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSIONS (INEC) 4. SENATOR MICHAEL AMA NNACHI RESPONDENT(S)

 

RATIO

WHETHER OR NOT A COURT BECOMES FUNCTUS OFFICIO ONCE JDUGEMENT IS DELIVERED

It is settled that once a judgment is delivered, the Court becomes functus officio (that it has no power to say or do or say anything in respect of the case again) except to entertain certain applications as applicable under the rules of the honorable Court.
See; BUHARI V INEC & ORS SUPRA CHIEF OZO NWANKWO ALOR & ANOR V NGENE (2007) LPELR -431 (SC), KASMAL PROPERTIES LTD V ADENIRAN ADEDOKUN VENTURES NIG LTD (2019) LPELR-47639 (CA) PRINCE BURUJI KASHAMU V ATTORNEY GEN OF FEDERATION (2013) LPELR 22357.
In MOHAMMED V HUSSEINI (1998)14 NWLR (PT 584) P 108 AT 163. Functus officio was defined as a task performed ‘therefore applied to the judiciary means a judge cannot give a decision or make an order on a matter twice. In other words, once a judge makes a decision he can no longer make an order on the matter, he no longer has competence to so do.
See; KASMAL PROPERTIES LIMITED v. ADENIRAN ADEDOKUN VENTURES NIGERIA LIMITED (2019) LPELR- 47639 (CA), where it was held thus:
“It’s imperative to understand what it means for a Court to be functus officio. This honourable Court in PRINCE BURUJI KASHAMU v ATTORNEY GENERAL OF THE FEDERAL REPUBLIC OF NIGERIA (2013) LPELR – 22357 (CA) held thus; “what is the meaning of “functus officio”? When is a Court of law functus officio? In Mohammed v Husseini (1998) 14 NWLR (PT.584) P. 108 at 163, the Supreme Court said of functus officio thus: “The latin expression functus officio simply means “task performed”. Therefore, applying it to the judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words, once a judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter … a judge is functus officio if he gives judgment on the merits…” In Ikpong v Udobong (2007) 2 NWLR (PT. 1017) P. 184 at 206 this Court per Omokri, JCA (of blessed memory) had this to say on the definition of the phrase: “The phrase ’functus officio” means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no force or authority. Also see Anyaegbunam v A.G Anambra State (2001) 6 NWLR (PT. 710) 532; Onyemobi v President O.C.C (1995) 3 NWLR (PT. 381) 50 and Ukachukwu v Uba (2005) 18 NWLR (PT. 956) 1 at 60″ per ABOKI, JCA (PP. 49 – 50, PARAS. B – A).” Per OBASEKI-ADEJUMO, JCA (PP. 10-11, PARAS. E-F). (Underlining mine). PER OBASEKI-ADEJUMO, J.C.A. 

THE POSITION OF LAW ON FILING AN EX-PARTE APPLICATION

Now at what point is an ex-parte application filed? Order 26 Rule 10 (1) of the Federal High Court (Civil Procedure) Rules 2019 provides that;
“..an order made on motion ex parte may not, unless the Court directs in the interest of justice lasts for-
a) More than 14 days after the party or person affected by the Order has applied for the Order to be varied or discharged: or
b) Another 14 days after application to vary or discharge it has been argued.”
Thus:
ORDER 26 RULE 6(1) OF THE FEDERAL HIGH Court (CIVIL PROCEDURE) RULES 2019, provides;
“A motion ex parte, shall be supported by an affidavit which, in addition to the requirements of Rule 3 of this Order, shall state sufficient grounds why delay in granting the order sought would entail irreparable damage or serious mischief to the party moving .(underlining mine).
PER OBASEKI-ADEJUMO, J.C.A. 

WHETHER OR NOT AN EXPARTE ORDER GRANTED BY THE COURT HAS A PLACE IN LAW

As matter of fact, the ex parte order granted by the Court has no place in law. It is strange and unknown to the practice of law. Ex- Parte order is an order made in the absence of the other party in emergency situation to preserve the res during the pendency of the substantive suit and it’s supposed to be for a short period. See; MAIDUGURI METROPOLITAN COUNCIL & ANOR v. ELIJAH OSAGIE EZEKOR (2013) LPELR-22792 (CA)
Again, in the case of Okechukwu vs. Okechukwu (1989) 3 NWLR (Part 108) 234 at 247, it was held thus:
“… It is most disturbing that the use of ex-parte injunction by some judges cannot be supported in any measure either on the applicable principles or on the fact. They do not seem to advert to the need for caution in the exercise of that extra ordinary jurisdiction. They appear to give impression that the discretion is so personal that it does not matter if others see it as a means of inflicting undeserved punishment and hardship on another party ….. it has again become necessary to issue a reminder that even where everything point favourably to the granting of an ex parte injunction there is always the need to make its life very short…”
Per ABDULLAHI, JCA (PP. 18-20, PARA C)
Thus, it is never intended by both the rules of Court and established principle of law for an ex parte order to last for either an indefinite or very long period or duration. By the relevant rules of the Court below, an ex parte order of whatever kind is provided to last for 14 days and no more. PER OBASEKI-ADEJUMO, J.C.A. 

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Post Judgment Ruling of the Federal High Court, sitting at Abakaliki division, EBONYI STATE, delivered on 28/7/22 by F.O. Riman J.

The appellant had filed a Notice of Appeal at the lower Court in suit FHC/AI/CS/132/2022 which forms the subject matter of the pending appeal No. CA/E/213/2022. The post judgment application was made and the order was granted after the said Judgment, Notice of Appeal, together with the application for stay of execution and injunction pending appeal without according a hearing to the appellant.

The appellant dissatisfied with the ex parte order of the lower Court lodged this appeal on 9/8/22 at pages 32-38.

FACTS
Sequel to the decision of the lower Court which led to the main appeal CA/E/213/22, the appellant had filed a notice of appeal and a motion for stay of execution of part of the orders and had served same. On the other hand, the respondents filed an ex-parte application and the trial Court while on vacation resumed and sat on 28/7/2022 heard and granted the motion ex- parte as per prayers of the 1st & 2nd respondents, which in the appellants view touched on the substance of the Notice of appeal and motion already served on the 1st & 2nd respondent.

It is against the said orders made in the main judgment that the application ex-parte was brought by the 1st & 2nd respondents to compel the 3rd respondent herein to do otherwise. Dissatisfied with the ex-parte order brought this appeal.

The appellant through is counsel, Nnemeka Victor Nwonu esq formulated 4 issues for determination in its brief of argument filed on 9/9/22 deemed on 16/9/2022 thus ;
1. Whether the 1st and 2nd respondents satisfied the prescribed pre-conditions for the grant of ex-parte order to warrant the grant of the post -judgement relief sought in the ex-parte applications at the trial Court.
2. Whether the trial Court judge was right when he assumed jurisdiction to hear and make absolute and /or permanent post judgement ex-parte orders on 28/7/2022 without according the appellant a hearing?
3. Whether the trial Court has jurisdiction to entertain post judgement exparte application and make orders touching on the substance of the judgement/decision handed down on 22/7/2022 in suit no FHC/AI/CS/132/2022 after the same trail judge had become functus officio and when an appeal has been lodged against the said judgements by the appellant?
4. whether by the facts and circumstances of this case, the ex-parte application and the ex-parte order of the lower Court made after an appeal had been lodged and during the pendency of the motion for stay of execution over the substance of the application, are not altogether an abuse of judicial process and liable to be set aside together with every steps already taken by the respondents or any other party pursuant to the exparte order?”

While the respondents through their counsel, Authur Obi Okafor SAN, with Roy O.U. Nwaeze esq,and Ifeanyi Nirlike esq.

Filed its brief on 15/9/22 deemed on 16/9/2022, and distilled a sole issue for determination thus;
‘’whether, having regard to all the circumstances of this matter, this appeal is liable to succeed or be allowed.’’

In issue 1, the appellant cited Order 26 Rule 6(1) of the Federal High Court Rules 2019, and ANIMASHAUN & ORS V BAKARE & ORS (2010) LPELR-9029 (CA) 20-24, IBRU V IKEJA HOTELS PLC (2017) LPELR -49869 (CA)

The appellant submitted that a final decision/judgment was handed down by the trial Court on 22/7/22, which ordered fresh primaries which shall admit fresh contestants/participants. The appellant filed a notice of appeal at the lower Court against part of the judgment, a motion for stay to preserve the res and for injunction pending appeal. All process were served on the respondent before the filing of the ex-parte motion.

Appellant submitted that the ex-parte application was not made at the preliminary stage of any substantive application/suit pending at the trial Court, secondly nothing about the application filed by the appellant was mentioned in their affidavit, and therefore was not a response to any urgency, thirdly that the application ex-parte was made in bad faith in overreaching the appellant, fourthly it was to foist a state of helplessness on the appellant and lastly it was tantamount to re-deciding the issues which the trial Court had decided in substantive suit without according the appellant any hearing on the application obviously the appellant would have objected to the application as it touches on the substance of the appeal.

Therefore, he urged the Court to hold that the respondent did not comply with the pre-conditions for a grant of Ex-parte order to warrant a grant of the relief sought therein.

Appellant submitted on issue 2, referring to Section 36 (1) of the Constitution 2004., and the following cases; ODIGWE V JUDICIAL SERVICE COMMISSION DELTA STATE (2010) LPELR- 4678 (CA), AKWAIBOM STATE COLLEGE OF EDUCATION, AFA NSIT V EKONG (2008) LPELR- 8446 (CA), GREEN V GREEN (1987) 3 NWLR (PT 61) 480 to the effect that fair hearing and fair trial was not adhered to and also satisfy the requirements of rules of Court and legal principles arrived at through decided cases .

Appellant relying on ANIMASHAUN & ORS V BAKARE & ORS case he submitted that the ex parte is absolute or permanent in its making. He referred to the order made and concluded that the consequence is a denial of everything that is fair and urged the Court to strike it down as a nullity. He cited: EZE V UNIJOS (2017) 17 NWLR (PT1593) THOMAS V FJSC (2019) 7 NWLR (PT 1671) 284 NYESOME v PETERSIDE (2016) 7NWLR (PT 1512) EZENWAJI v U.N.N. (2017) 18NWLR (PT 1598) 485. Appellant argued in issue 3 relying on BUHARI V INEC &ORS (2008)12 SCN (PT1) 246 AT 375-376, ALOR & ANOR V NGENE & ORS (2007) LPELR-431 (SC) defined functus officio, and the effect of a final judgment/order. That the Court had concluded the matter and made pronouncements and lacked the power to reopen the issues. Appellant relied on ATOYEBI V FED POLY KADUNA 7 ORS (2015) LPELR-40391 (CA) 19, BABINGTON-ASHAYE V EMAG ENT NIG LTD (2011) 10 NWLR (PT 1256) P 479 AT 529.

Appellant further relied on,; INTERGRATED REALITY LTD V ODOFIN & ORS (2017) LPELR-48358 (SC) 9, ALHAJI SULAIMAN MOHAMMED & ANOR V LASISI SANUSI OLAWUNMI &11 ORS SUIT SC.135/1991 where the Court held, defining functus officio as where a Court has duly performed its duty handling down its decision, in this case it has exhausted as it were, all its powers with regard to that matter.

In issue 4, appellant referred to Order 6 Rule 12 of the Federal High Court Rules, which states that an appeal is deemed to have been brought when the appeal has been filed in the registry of the lower Court that having complied with all requirements, an appeal is deemed to have been filed and a grant or refusal is a discretion of the Court, but to have decided an ex-parte application during the pendency of these application smirks of an abuse of Court process. He relied on the following cases; OGOEJEOFO VS OGOEJEOFO (2006) 3 NWLR (PT 966) 220 SARAKI V KOTOYE (1992) 9 NWLR (PT 264) 156 AT 188, BICON AGROCHEMICALS (NIG) LTD &ORS V KUDU HOLDINGS (PTY) (1996) LPELR -783(SC) 14, ACD &ORS V A.G. OF FEDERATION & ANOR (2020) LPELR-51052 (CA) VASWANI TRADING CO V SALVALAK &CO (1972) LPELR -3460 SC 11-12 .

1st & 2nd RESPONDENTS ARGUMENTS
The 1st and 2nd respondents on the lone issue argued that the appeal is academic in all circumstances of the case and ought not to be allowed.

He posit that this appeal is an abuse of Court process as it is being used together with appeal No CA/E/213/2011 to achieve the same thing to wit, setting aside of the 2nd respondents fresh primary held pursuant to the judgment in suit FHC/AI/CS/132/2022 delivered on 22/7/2022 .

He submitted while relying on the following cases that where two actions of similar or same nature between same parties and subject matter are being prosecuted concurrently the later of the two will be vacated; DINGYADI 7 ANOR V INEC & ORS (2010) LPELR-40142(SC) 61, IKENYA V BWACHA & ORS (2011) LPELR-19747(CA) 35.

Learned senior advocate reproduced sections of the judgment delivered in respect of the counter claim to the effect that the counterclaim succeeds but refused the reliefs d, e, f, g, h, & i and the order made in the ex parte which basically directed in relief D that fresh primaries be held with fresh parties and reliefs e -i were dependent on relief d.

The reliefs in the ex-parte application was thus;
”An order authorizing the 2nd applicant to hold and mandating the 1st respondent to attend, observe and accept the outcome of the congress or primary election of the 2nd applicant duly held for the nomination of 2nd applicant’s candidate for Ebonyi State South Senatorial District in Ebonyi state for 2023 general election”.
And the application was granted as prayed.

​Counsel for the 1st & 2nd respondent in submitting that the appeal is moot and academic, and that a conjunctive reading of the reliefs D-1 of the Court’s ruling and ruling in the post judgment order of the Court to the reliefs in CA/E/213/2022 IN PRINCESS ANN NWANYIBUIFE AGOM -EZE V NWEZE DAVID UMAHI & ORS those in the post appeal ruling in this appeal, respectively it would be clear that it flowed from the orders of the lower Court.

He disagreed that the post judgment ruling introduced matters outside the contemplation of the orders contained in the substantive judgment. He placed reliance on Section 287 of the Constitution in obedience to Court orders.

He submits strongly that APC AND INEC are bound therefore to take steps that the orders of the Federal High Court are given effect to. That if the main appeal succeeds it will render useless his appeal.

He urged the Court to dismiss the appeal as lacking in merits.

APPELLANT’S REPLY
Appellant counsel argued that the fresh issue of abuse of Court process was raised hence this address, he disagreed that the lower Court re-emphasized the orders of the earlier judgment but that the lower Court proceeded to make fresh and final orders for the first time in the post judgment ex-parte application when no motion was pending. That there was no such order in the main appeal, that this was a denial of fresh hearing in Section 36 of the Constitution.

Counsel re-emphasized that the Court was funtcus officio, and that the issues raised were not refuted by the 1st &2nd respondents in their brief and it is deemed admitted. He further distinguished the two appeals; that one is on complaints of the judgment delivered on 22/7/22 while CA/E/213/22 is on abuse of right to fair hearing in hearing it ex-parte and grounds and issues are distinctly independent.
Appellant urged that the appeal be allowed.

Resolution:
I have read the issues of the parties and find that, the appellant has four issues which dove tailed into each other, and the issue of the respondent is too general in nature but find an issue in the appellants issue which settles all questions in this appeal therefore, I shall adopt the issue 3 of the appellant which in my view covers all aspect of the appeal wit;
“whether the trial Court has jurisdiction to entertain a post-judgment exparte application and make orders touching on the substance of the judgement/decision handed down on 22/7/2022 in suit FKC/AI/CS/132/2022 after the trial the said judge had become funtus officio?”

The main poser of this is whether the trial Court has jurisdiction to grant an ex parte application and whether it has become functus officio?

It is settled that once a judgment is delivered, the Court becomes functus officio (that it has no power to say or do or say anything in respect of the case again) except to entertain certain applications as applicable under the rules of the honorable Court.
See; BUHARI V INEC & ORS SUPRA CHIEF OZO NWANKWO ALOR & ANOR V NGENE (2007) LPELR -431 (SC), KASMAL PROPERTIES LTD V ADENIRAN ADEDOKUN VENTURES NIG LTD (2019) LPELR-47639 (CA) PRINCE BURUJI KASHAMU V ATTORNEY GEN OF FEDERATION (2013) LPELR 22357.
In MOHAMMED V HUSSEINI (1998)14 NWLR (PT 584) P 108 AT 163. Functus officio was defined as a task performed ‘therefore applied to the judiciary means a judge cannot give a decision or make an order on a matter twice. In other words, once a judge makes a decision he can no longer make an order on the matter, he no longer has competence to so do.
See; KASMAL PROPERTIES LIMITED v. ADENIRAN ADEDOKUN VENTURES NIGERIA LIMITED (2019) LPELR- 47639 (CA), where it was held thus:
“It’s imperative to understand what it means for a Court to be functus officio. This honourable Court in PRINCE BURUJI KASHAMU v ATTORNEY GENERAL OF THE FEDERAL REPUBLIC OF NIGERIA (2013) LPELR – 22357 (CA) held thus; “what is the meaning of “functus officio”? When is a Court of law functus officio? In Mohammed v Husseini (1998) 14 NWLR (PT.584) P. 108 at 163, the Supreme Court said of functus officio thus: “The latin expression functus officio simply means “task performed”. Therefore, applying it to the judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words, once a judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter … a judge is functus officio if he gives judgment on the merits…” In Ikpong v Udobong (2007) 2 NWLR (PT. 1017) P. 184 at 206 this Court per Omokri, JCA (of blessed memory) had this to say on the definition of the phrase: “The phrase ’functus officio” means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no force or authority. Also see Anyaegbunam v A.G Anambra State (2001) 6 NWLR (PT. 710) 532; Onyemobi v President O.C.C (1995) 3 NWLR (PT. 381) 50 and Ukachukwu v Uba (2005) 18 NWLR (PT. 956) 1 at 60″ per ABOKI, JCA (PP. 49 – 50, PARAS. B – A).” Per OBASEKI-ADEJUMO, JCA (PP. 10-11, PARAS. E-F). (Underlining mine)

In this instant case, the lower Court having delivered a final judgment in the main case FHC/AI/CS/132/2022 on 22nd July 2022, during vacation resumed and entertained an application for the relief thus;
‘’An order authorizing the 2nd applicant to hold and mandating the 1st respondent to attend, observe and accept the outcome of the congress or primary election of the 2nd applicant duly held for the nomination of 2nd applicant’s candidate for Ebonyi State South Senatorial District in Ebonyi State for 2023 general election.
(Underlining mine)

​In the instant case, the trial judge having delivered its judgment on the 22nd July, 2022 has divested itself of all the official authority required of a judge, and thus became functus officio. He/she cannot and is not supposed to sit on the merits of the case in which he/she has given judgment. Once the Court determines the legal right of litigants, he has performed his task. See the case of; JOHN ANDY SONS & CO LTD v. N.C.R.I (1997)3 NWLR PART 491 PG 1; U.T.C. (NIG.) v. PAMOTEI (1989) 2 NWLR PT. 103 PG 244.
The trial Judge cannot change such a decision once it is made, or delve back into that case. He/she lacks the jurisdiction to do so, as he/she has become functus officio except:
1. To make ancillary orders, for example, an order for the enforcement or stay of execution of the judgement or order for the award of cost. See the case of NNAJIOFOR v. UKONU (1985) 2 NWLR PT 8 PG 686; in such a situation, any party dissatisfied with any part of the interlocutory order may appeal against it.
2. Where a default judgement was entered by the trial Judge, the judge can set aside his/her decision. A default judgement is one in which the decision is handed down not on its merit but as a result of the failure to follow the rules of procedure. See; UDOH v. ASUQUO (2006) 9 NWLR PT. 985 PG 299 at 315.
​Therefore, the Court has no business whatsoever hearing any application that seeks to re-enforce its earlier judgment and now a varied version. He had no jurisdiction.

The Court had made orders in the main case calling for fresh primaries to determine the candidate for the party, but the Appellant dissatisfied with the judgment filed a notice of appeal and a motion for stay of execution and served same while this was pending the respondent filed this application and the Court despite same heard it albeit a strange prayer ex-parte.

Now at what point is an ex-parte application filed? Order 26 Rule 10 (1) of the Federal High Court (Civil Procedure) Rules 2019 provides that;
“..an order made on motion ex parte may not, unless the Court directs in the interest of justice lasts for-
a) More than 14 days after the party or person affected by the Order has applied for the Order to be varied or discharged: or
b) Another 14 days after application to vary or discharge it has been argued.”
Thus:
ORDER 26 RULE 6(1) OF THE FEDERAL HIGH Court (CIVIL PROCEDURE) RULES 2019, provides;
“A motion ex parte, shall be supported by an affidavit which, in addition to the requirements of Rule 3 of this Order, shall state sufficient grounds why delay in granting the order sought would entail irreparable damage or serious mischief to the party moving .(underlining mine)
Clearly, the Rules allows the use of ex-parte applications but only on the ground that the supporting affidavit shall state sufficient facts of a delay in granting the order sought which may cause irreparable damage, loss, injury or serious mischief to the party moving.
In the celebrated case of ANIMASHAUN ORS V BAKARE (SUPRA) the Apex Court stated that the rules of Court allow ex parte when, for preservation of the subject matter of ligation but for a short period, therefore an order made that is not interim in nature, preservative and there is no real urgency then there is not in compliance of the rules. The respondent contend otherwise that they had 14 days to carry out the order of Court and it qualified to come by this procedure.

The query is, why was it ex parte when in the main suit the parties were still available? What urgency was it that required only the presence of the respondent? It was agreed that the present appellant contested the primaries and therefore cannot not be kept in the dark. I am of the view that the urgency was contrived and self-inflicted, it definitely smirks of mischief.

However, the trial Court went ahead to hear and grant the ex parte application brought by the 1st and 2nd Respondents to enforce part of the judgment delivered by the same Court on 22nd of July, 2022.

As matter of fact, the ex parte order granted by the Court has no place in law. It is strange and unknown to the practice of law. Ex- Parte order is an order made in the absence of the other party in emergency situation to preserve the res during the pendency of the substantive suit and it’s supposed to be for a short period. See; MAIDUGURI METROPOLITAN COUNCIL & ANOR v. ELIJAH OSAGIE EZEKOR (2013) LPELR-22792 (CA)
Again, in the case of Okechukwu vs. Okechukwu (1989) 3 NWLR (Part 108) 234 at 247, it was held thus:
“… It is most disturbing that the use of ex-parte injunction by some judges cannot be supported in any measure either on the applicable principles or on the fact. They do not seem to advert to the need for caution in the exercise of that extra ordinary jurisdiction. They appear to give impression that the discretion is so personal that it does not matter if others see it as a means of inflicting undeserved punishment and hardship on another party ….. it has again become necessary to issue a reminder that even where everything point favourably to the granting of an ex parte injunction there is always the need to make its life very short…”
Per ABDULLAHI, JCA (PP. 18-20, PARA C)
Thus, it is never intended by both the rules of Court and established principle of law for an ex parte order to last for either an indefinite or very long period or duration. By the relevant rules of the Court below, an ex parte order of whatever kind is provided to last for 14 days and no more.

In the instant appeal, after considering the facts of this case and the order granted by the trial Court ‘’compelling the 3rd Respondent to attend, observe and accept the outcome of the primary election of the 2nd Respondent on 31st July, 2022 at Ebonyi South Senatorial District”, it is clear that it does not reveal any emergency situation, neither does it convince me that there will be an irreparable damage or serious mischief to the 1st and 2nd Respondent if in the discretion of the trial judge it is granted in the presence of the other parties.. See; AISHA ANIMASHAUN & ORS v. AISHAT ALIU BAKARE & ORS (2010) LPELR-9029 (CA), It was held that;
“Ex-parte orders are intrinsically unconstitutional in nature because they are made without offering the other party a hearing. The Courts have however retained and exercised the powers to make ex-parte orders in order to avoid situations where irreparable damage may be done to the res of any dispute. That is why ex- parte orders must be made most sparingly and must be made for a very limited amount of time principally to put the other party on notice of the complaint against his conduct. It must be interim in nature.”
Per AGBO, JCA (P. 27, PARAS. B-E)
From the foregoing, it is evident from the provisions of the law stated above that;
a) Ex-parte application and ex-parte orders are usually preliminary to the hearing of the substantive case in order to preserve the subject matter of the dispute, pending the hearing of a substantive application on notice to the adverse party;
b) Affidavit in support of the application ex-parte must set out sufficient facts why a delay in granting the order sought may lead to irreparable damage, loss, injury or serious mischief to the Applicant.
c) The order flowing from the application must not be absolute or perpetual but interim or for a short while;
d) Where the order made ex-parte is absolute or perpetual, it will fail the test of validity of ex-parte applications and must be set aside for being prejudicial to the adverse party and a denial to the right of fair hearing.
Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and Impartiality”.
See; ALHAJI HAMMED OMIDIRAN v. BELLO ORAWOLE ORABEKU & ANOR (2013) LPELR- 20527 (CA) where it was held thus;
“The provisions of S.36 of the Constitution of the Federal Republic of Nigeria 1999 and its 1979 predecessor, even as amended, guaranteed the right to fair hearing to every litigant. This right envisages hearing both sides to a dispute before their duties, rights or obligation could be determined by a Court or Tribunal.” Per GOMEL, JCA (P. 21, PARAS. D-E)
Again in AUGUSTINE ODIGWE v. JUDICIAL SERVICE COMMISSION DELTA STATE (2010) LPELR- 4678 (CA); this Court held thus;
‘’On the issue of denial of fair hearing raised by the learned appellant’s counsel, with due deference to the learned appellant’s counsel, the time honored principle of fair hearing as enshrined in S.36(1) of the 1999 Constitution enjoins Courts or tribunals to give equal opportunity to parties to present their case in Court. See Ndaba (Nig) Ltd vs. UBN Plc(2009) 13 NWLR (Pt. 1158) 5256. In order to determine whether the principle of fair hearing has been breached the crucial point to consider is not whether any injustice was done to any of the parties due to want of hearing but whether the party or parties was afforded opportunity to be heard. Also, in determining such opportunity to be heard, the following conditions must be inherent in the conduct of the case being heard, the following conditions must be inherent in the conduct of the case i.e.: – “(a) both parties must be heard on all material issues before the Courts determines or pronounce on them; (b) the Court must give equal treatment opportunity and consideration to both parties, (c) the proceedings/trial shall be held in public and all concerned shall have access to and be informed of the place of public hearing; (d) that having regards to all the circumstances in every material decision in the case, justice must not only be done but be manifestly seen to have been done for instance, …..and make submissions to Court before the case is determined. See Awuse vs. Odili (2005) 16 NWLR (Pt.952) 46; Durwode v. State (2000) 15 NWLR (pt.691) 467; JCC Inter Ltd. v. NGI Ltd. (2002) 4 WRN 91. See also Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419; Adegun v. A.G., Oyo State (1987) 1 NWLR (Pt.53) 678; Deduwa v. Okorodudu (1976) 9 – 10 SC 329; Udo- Akagha v. Paico Ltd. (1993) 4 NWLR (Pt.288) 434; Saleh v. Mouguno (2003) 1 NWLR (Pt.801) 221. Ordinarily, where a trial Court fails or neglects to observe any of the above mentioned preconditions of fair hearing, enumerated above, it can be said to be in serious breach of the concept or principles of fair hearing under Section 36 of the 1999 Constitution.
In AISHA ANIMASHAUN & ORS. V. AISHAT BAKARE & ORS. (SUPRA) the Court held further that the grant of an exparte application is a breach of right to fair hearing when the exparte order made by the Court was not temporary but absolute and therefore an irregular Order which falls within circumstances where an ex-parte Order will be set aside.
Even if the respondent filed an application before the lower Court which by law must be heard, it behooves on the trial judge to direct that such application be served on the appellant or to show cause and abridge time herein, for the principle of fair hearing to be followed. After all it was the appellants (herein) counterclaim that was allowed while the respondent’s claims were dismissed. The trial judge erred in law when he did not put the Appellant on notice and proceeded to grant the application of the 1st and 2nd Respondents. It amounted to a breach of fair hearing.

Again, the applicants (now respondents) basically reopened their case before the same Court through the same counsel and granted orders which empowered the respondents to halt the enforcement or implementation of the earlier judgment given. I agree with the appellants that this amounted to and foist a fait accompli on the Court of appeal.

Furthermore, the application based on the facts of the case, the respondents ought to have filed a fresh suit to obtain such orders. By hearing the application it amounted to the Court compelling ” INEC TO ACCEPT” the outcome of another congress or primary election of the 2nd applicant to be held. A close look at the prayer 2 of the applicant therein in the main case was to compel INEC to accept his name. See page 3 of the record of appeal. While the appellant herein had in her counterclaim asked that her name be accepted by INEC, see page 6 of record. Therefore, can it be said that what took place on the ex parte granted on 28/7/22 did not amount to another bite of the cherry BUT now on the reverse side in the absence of the contending party? Can this also be said to be an academic appeal as contended by the 1st & 2nd respondents in this appeal? I am afraid, No!

​In short, what took place was that, the Court took sides with one of the parties contending the position rightly or wrongly. This definitely does not qualify as a post judgment proceedings, it ought to be heard on notice; see affidavit content filed in support of the application at pages 23-40 of the record. See also the supporting affidavit at pages 26 paragraph 3-8 of the record thereof together with attachments, there was no mention of the documents earlier filed by the appellant nor served either by the respondents nor the Court.

This cannot be a harmless application but one that has far reaching effect on the other parties’. I say no morel! This ought not to be, a Court is an umpire.

Therefore, I would answer the main poser earlier stated in this judgment in the negative, because the Lower Court has no jurisdiction to sit, hear or grant this ex-parte application as it has become functus officio and breached the rules of fair hearing enshrined in the constitution.

Accordingly, I resolve this issue in favour of the Appellant, the appeal has merit and succeeds. The appeal is hereby allowed.

The Ruling of the Federal High Court, Abakaliki Division delivered on 28th July, 2022 by Hon. Justice F.O. Riman is hereby set aside.

Cost is awarded to the appellant against the 1st & 2nd Respondents in the sum of N200.000.

STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft the Judgment delivered in Court by my learned brother, Abimbola O. Obaseki- Adejumo, JCA.

I am in agreement with the conclusion that this appeal has merit and it is hereby allowed. The exparte order given in this case by the learned trial judge was issued after he had finished hearing the action brought by the parties and judgment was delivered. When the judgment was handed down in the case, the trial judge became funtus officio. By that he cannot under any guise re-open a completed case, to take any fresh application not to talk of it being done exparte. The exparte application was filed after judgment of the trial Court. This makes the application to be in all frame and context an abuse of the process of the Court. Furthermore, an exparte motion given is meant to be an equitable remedy in the interim and such can only be given in the life time of an action.
​Once a case is finally decided, no provision is made under the Rules of Court for any of such an application. The exparte motion granted in this case was granted without jurisdiction. It invariably means that the lower Court’s decision and order are a nullity. I therefore, agree that the appeal has merit. The appeal is allowed. The orders made by the trial Court are hereby set aside. I abide by the consequential orders as made by my learned brother inclusive of the order as to costs.


MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA, just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.
I abide by the consequential Orders.

Appearances:

Nnaemeka Victor Nwonu, Esq. For Appellant(s)

R.O.U. Nwaeze, Esq. with him, Ifeanyi Nrialike, Esq. for 1st and 2nd Respondents.

Hassan Aminu, Esq. for 3rd Respondent. For Respondent(s)