SKYE BANK PLC v. OKENE A. DAVID & ORS
(2014)LCN/7011(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of March, 2014
CA/K/265/2011
RATIO
WORDS AND PHRASES: AN ORDER ABSOLUTE
An order absolute is the final decision in any garnishee proceedings and a garnishee proceedings, is by its very nature, a suit taken out to enforce or execute a court judgment and so it is a fresh and separate action from the suit that brought about the judgment debt. See OCEANIC BANK PLC VS. OLADEPO (2012) LPELR – 19570 (CA). Per ITA G. MBABA, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
SKYE BANK PLC Appellant(s)
AND
OKENE A. DAVID & ORS Respondent(s)
ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kaduna State High Court in suit No. KDH/KAD/955/2011, delivered by Hon. Justice Dogara Mallam on 29/7/2011, wherein his lordship made an order nisi for the payment of judgment sum of N6,949,000.00 (Six Million Nine Hundred and Forty Nine Thousand Naira), absolute, against the Appellant, who was the Garnishee at the Lower Court, in favour of the 1st to 20th Respondents.
The 1st to 20th Respondents had obtained judgment against the 21st and 22nd Respondents in a suit in the sum of N6,949,000.00 and had taken out his suit (KDH/KAD/955/2011) at the Lower Court to recover the amount from the Garnishee (now Appellant) who custodied the money of the 21st and 22nd Respondents.
Upon the service of the Order Nisi on the Appellant, Appellant filed affidavit to show cause why the Order Nisi should not be made absolute, attaching the statement of the account of the 21st and 22nd Respondents with the Appellant. In the affidavit, Appellant also deposed to the fact that, prior to being served with the Garnishee Order Nisi, it had been served with an order from the Federal High Court, Ikoyi, Lagos, at the instant of Economic and Finance Crime Commission (EFCC), freezing the accounts of the 21st and 22nd Respondents with the Appellant and effectively preventing the Appellant from making any outward payment to third parties from the said Accounts. After hearing the arguments, the learned trial judge had ruled that the Appellant had not shown cause why the order Nisi should not be made absolute and so gave judgment for the 1st to 20th Respondents.
Appellant filed its Notice of Appeal, dated 1/8/2011, as per pages 80 – 84, and formulated 3 grounds of appeal. It filed its brief of argument on 18/11/2011 and distilled three (3) issues for determination, as follows:-
(1) Whether the trial court was justified in holding that the Federal High Court freezing order made pursuant to section 34(1) of the Economic and Financial Crimes Commission Act, Cap E1 LFN 2004 is subject to the operation of Order 9 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules, 2000, and therefore has a life span of 14 days which has lapsed? (Ground 1)
(2) Whether the provision of Order 9 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000 is extant, in the light of the provisions of Order 1 Rule 1 of the Federal High Court Civil Procedure Rule 2009? (Ground 2)
(3) Whether the trial court was right in holding that the effect of the freezing Order of the Federal High Court against the Appellant is to transfer the custody of the funds to the Federal High Court and thereby making the Federal High Court, Ikoyi, Lagos in custodia Legia of the funds,” (Ground 3).
Appellant also filed a Reply brief on 20/1/12 which was deemed duly filed on 30/10/12. That was done, mostly, because the Respondents had filed a preliminary objection to the appeal on 30/12/11, seeking an order to strike out the Notice of Appeal and the appeal, on the grounds that the Notice of Appeal offends Order 6 Rule 2(1) of the Court of Appeal Rules; that no leave was sought and obtained before filing the Notice of appeal; that garnishee proceedings are interlocutory applications and that the Notice of Appeal does not have endorsed on it address for service. The Respondents argued the preliminary objection in paragraph 2.0 to 3.15 of their brief, filed on 16/12/2011. They also, on the appeal, distilled 3 issues for determination, as follows:-
(1) Whether an exparte order can be made in perpetuity by the Federal High Court, Lagos pursuant to section 34(1) of the Economic and Financial Crimes Commission Act, Cap E1, LFN, 2004
(2) Whether an order of Court would be set aside on the basis that it was made under a wrong law or rule of Court.
(3) Whether by virtue of the freezing order issued by the Federal High Court Lagos, the funds in the account of the 21st and (sic) 22nd Respondents are in the custody of the Federal High Court, Lagos.”
At the hearing of the appeal on 4/3/14, the parties moved this court accordingly, starting from the preliminary objection by the Respondents.
It is necessary to consider the preliminary objection first being a tresh hold issue.
The main contention of the Respondents in the preliminary objection is that the Notice of Appeal failed to comply with the mandatory provisions of Order 6 Rule 2(i) of the Court of Appeal Rules, 2011, which requires the Notice of Appeal to have, enclosed on it, an address for service on the parties. Counsel submitted that the use of the word ‘shall’ in the Rules, implies obligation. He relied on the case of D. U. TAMTI VS. NCSB (2009) 7 NWLR (Pt.1141) 631; ADAMS VS. UMAR (2009) NWLR (PT.1133) 41.
Counsel argued that appeal can only be competent if the Notice of Appeal is in strict compliance with Order 6 Rule 2(i) of the Court of Appeal Rules 2011. He relied on the case of CLEV JOSH LTD VS. TOKIMI (2008) 12 NWLR (Pt.1104) 422 at 439.
Counsel also submitted that appeal against a garnishee proceedings in an appeal against an interlocutory decision and so should be filed with the leave of the trial court or of this Court. He relied on section 14 of the Court of Appeal Act 2004. He relied on the case of NIWA VS SPDC NIG. LTD (2007) 1 NWLR (Pt.1015) 305 on the need for appeal, being a creation of statute, to comply, strictly, with the statutory requirement which governs the very existence of the appeal, where leave to appeal is required.
Appellant, in its Reply brief, said that 1st to 20th Respondents had indicated on page 83 of the Records of Appeal, address for the service of all the parties to be through their respective counsel, and that for 1st to 20th Respondents, it was through Messrs Kola Faturiyele & Co. (pages 2 and 6 of the records). Counsel submitted that by virtue of Order 2 Rule 9 of the Court of Appeal Rules 2011, the endorsement of address for service on the Respondents through their counsel in the Notice of Appeal filed by the Appellant was proper.
Counsel further argued that, even if the address for service on the Notice were to be said not to be proper (which he did not concede), that that omission to indicate the address for service would amount to mere irregularity, which does not vitiate the Notice and grounds of appeal. He relied on the case of OSIGWELEM VS. INEC (2011) NWLR (Pt.1253) 425 at 441; DYERIS VS. MOBIL NIG. PLC (2010) 1 NWLR (Pt.1175) 309 at 325; J. V. NIG. LTD VS. ALMAJIR (2010) 7 NWLR (PT.1193) 292 AT 308.
On the point that the appeal is against an interlocutory order of the Lower Court, Counsel submitted that that is a misconception, as the order absolute made by the trial Court was a final order, appealable as of right, without the need to seek and obtain the leave of Court. He relied on the case of SOKOTO STATE GOVT. VS. KAMADAX (NIG) LTD. (2004) 9 NWLR (PT.878) 345 AT 374, UBA PLC VS. EKANEM (2010) 6 NWLR (PT.1190) 207 AT 225; UBA PLC VS. BONEY MARCUS IND. LTD (2005) 13 NWLR (PT.943).
It is difficult to understand the grouse of Respondents in this preliminary objection, alleging non-compliance with Order 6 Rule 2(i) of the Rules of this Court, with regards to the endorsement of address for service on the Notice of Appeal. This is because the Notice of Appeal on pages 80 to 84 of the Records of Appeal, clearly, states the address for service. Page 83, in particular states addresses for service, as follows:-
“SKYE BANK PLC:
C/O ITS SOLICITORS
Habeeb and Company, YA
Habeeb House, F6 Ahmadu
Bello Way, Kaduna
1ST TO 20TH RESPONDENTS:
C/O THEIR SOLICITORS, KAYODE FATURIYELE
H. H. 15 Adamawa Road
Off Abeokuta Street, C and 5
Social Central Kaduna
21ST – 22ND RESPONDENTS
No. 6 Benue Road/Ahmadu Bello Way
Kaduna
I have not been privileged to glance at the Records of Appeal served on the 1st to 20th Respondents, to confirm whether the above addresses for service are omitted, to justify that head of objection. Even then, the fact the 1st to 20th Respondents have filed their Brief in this appeal which they did on 20/1/12 thereby taking active part in the defence of the appeal, shows they had no faith in their said protect; it shows that, even if there was omission to endorse the address for service of the 1st to 20th Respondents, that they, in fact, were served and they came to court or sent a lawyer to represent them to defend the action. Such omission therefore becomes a mere irregularity, which cannot vitiate the service of the process on the Respondents, and or the appeal. See the case of DYEVIS VS. MOBIL OIL NIG PLC. (2010) 1 NWLR (Pt.1175) 309 at 325, where Augie JCA said:
“I will quickly say that this grounds of objection will be overruled because failure to state the name and addresses of all the parties directly affected by the appeal in a notice of appeal has been held to be a mere irregularity, which cannot affect the hearing of an appeal on the merit. See Deem Mark Construction Co. Ltd. v. Abiola 2002 3 NLWR (Pt.754) 418:
The Respondents’ Counsel cannot also be taken seriously, when he alleged that an order absolute in a garnishee proceeding is an interlocutory decision, requiring the leave of the court that heard the case, or of this court to hear appeal on it. Of course, a decision on a garnishee proceedings that makes an order Nisi (which, in fact, is an interlocutory order) absolute, is a final judgment in the case, on which appeal lies as of right. See the case of Garba vs. Ummuani (2012) LPELR – 9841 CA, on when a decision is interlocutory and when it is final, where it was held:
“The Nigerian Courts have accepted and followed the latter test, id est that where an order made by a court finally determines the rights of the parties to an action, then it is final, and where it does not then it is interlocutory. See IGUNBOR VS. AFOLABE [2 – 1] 11 NWLR [PT.723] 148; OGOLO VE OGOLO (2006) 5 NWLR (PT.972) 163; OWOH VS. ASUK (2008) 16 NWLR (PT.1112) 113.
An order absolute is the final decision in any garnishee proceedings and a garnishee proceedings, is by its very nature, a suit taken out to enforce or execute a court judgment and so it is a fresh and separate action from the suit that brought about the judgment debt. See OCEANIC BANK PLC VS. OLADEPO (2012) LPELR – 19570 (CA).
The preliminary objection was clearly misconceived and therefore fails. It is accordingly struck out.
Arguing the Appeal, learned counsel for the Appellant, on issue 1, reproduced the provisions of section 34(1), (2) and (3) of the Economic and Financial Crimes Commission Act and Order 9 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules for better appreciation, and submitted that in the absence of any order discharging the order freezing the amounts of the 21st and 22nd Respondents, made by the Federal High Court, Lagos, pursuant to the said section 34(1) of the EFCC Act, the extarte order subsisted and was not open to the vagaries and or subject to the operation of the provisions of Order 9 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2000, as to the fixed life span of 14 days for expart order, as held by the trial court. He added that the EFCC Act takes precedent over the High Court Rules. He also said for an exparte order granted pursuant to the rules of court to lapse after 14 days, there must have been an application by the party affected by the exparte order for a variation or discharge of the order before the 14 days life span can be invoked.
He submitted that the crystallization of the order Nisi to absolute by the trial court in the face of existing and subsisting order of the Federal High Court freezing the account of the 21st and 22nd Respondents with the Appellant bother (sic) on abuse of court process. He relied on the case of NDIC vs. SBN (2003) 1 NWLR (Pt.801) 311 at 363.
On Issue 2, counsel submitted that the Order 9 Rule 12 (1) and (2) of the Federal High Court [Civil Procedure] Rules 2000, which the learned trial court relied on to hold that the exparte order of the Federal High Court lapsed after 14 days, was no longer subsisting, having been revoked by Order 1 Rule of the Federal High Court [Civil Procedure] Rules 2009; that since the 2000 Rules was no longer extant or an existing law, it cannot be the basis for the trial court to reach a valid decision; that the effect of repealing a statute is to obliterate it completely from records of the parliament. He relied on the case of MADUMERE VS. ONUOHA (1999) 8 NWLR (PT.615) 42 AT 430; ODUKO VS. GOVT. EBONYI STATE (2004) 13 NWLR (PT.891) 487 AT 502.
On Issue 3, counsel said the findings of the trial court was untenable by saying that the Federal High Court order exparte, [Exhibits 2] made the management, control, direction (and how the sum standing in the account of the judgment debtor was to be spent) vested in the Federal High Court and not in the EFCC, as the money was in custody of the court, as such reference to S.34 of the EFCC Act 2004 was untainable.
This issue appears to be a complete moot issue and a pure academic exercise as it did not form the basis of the judgment of the learned trial court. It is true that the trial court had said that;
“That EFCC having issued the order made in Exhibit SK2, the management, control and direction as to how the sum standing in the a/c of the JDS was vested in the court and not the EFCC, as the money is in custodia legis and as such any reference to S.34 of the EFCC Act 2004 is untainable.” See page 79 of the Records.
But after saying that, the court held:
“The case of NDIC vs. SBN PLC [2003] 1 NWLR (PT.801) 311 and FIDELITY BANK PLC VS. MT TABORA [2007] NWLR [PT.1142] 109 do not apply to this case because the order or ruling in Exhibit SK2 is an exparte order with a specific life span of 14 days after which the order lapsed. See Order 9 Rule 12 (1) and (2) FHCCR 2000 the order having lapsed and not renewed after the expiration of the 14 days from the day same was made the fund in the account reverted to the control and management of the Garnishee on behalf of the judgment Debtor. Accordingly, the Order Nisi is hereby made absolute…” see page 74 of the Records.
Having therefore decided that the funds in the accounts reverted to the control and management of the Garnishee, after the lapse of the exparte Order of the Federal High Court [Exhibit SK2], and so the Garnishee should satisfy the judgment debt, I think the earlier findings that “the sum standing in the a/c of JDS was vested in the court… as the money is in custodia legis…” became a passing comment and ceased to be of any moment in the decision of the lower court, not being a live issue or ratio decidendi in the case. See the case of OSSAI VS. FRN (2012) LPELR 19669 [CA], where this court held:
“… The law is trite that appeal – the ground(s) thereof the issue(s) therefrom, must be founded on a valid complaint, arising from the judgment on appeal. Putting it differently, a valid complaint in an appeal must arise from the judgment appealed against, challenging a live issue or ratio decidendi in the judgment of lower court. See SHETTIMA VS. GONI [2011] 11 NWLR [PT.1279] 413 at 440; CPC VS. INEC [2011] 18 NWLR [PT.1279] 4943, ratio 25; APROFIM ENGR. CONSTRUCTION NIG. LTD. VS. BIGOURET [2012] ALL FWLR [PT.622] 1740, ratio 2; ARIBO VS. CBN [2011] ALL FWLR [PT.554] 104 at 116:
The said 3rd issue, and ground 3 from which it came, being only academic, are hereby struck out for incompetence. See SHETTIMA VS. GONI (Supra); CPC vs. INEC (supra); ARIBO CBN (supra).
The 1st to 20th Respondents’ Counsel, KAYODE FATURIYELE ESQ., on issue 1 reproduced the provisions the section 34(1) of the EFCC Act, relied upon by the Appellant, and said that provision of the law does not prohibit the filing of motion on Notice and does not state that the exparte order to be obtained would be permanent. He argued that an ex-parte order is expected to terminate or expire on a named date, and a motion on notice is expected to be filed alongside exparte application; that allowing an exparte order to remain permanently breaches the section 36(1) of the 1999 Constitution (formerly section 33(1) of the 1979 Constitution) with regards to the rights of fair hearing of the affected party. He relied on the case of ENEKWE VS. I. M. A. LTD [1997] 10 NWLR [PT.526] 601 at 611; SATYAN VS. IMB LTD [2002] 5 NWLR [PT.760] 397 at 415 – 416.
“An exparte order should not be made to last pending the determination of the substantive suit as the would infringe the provision of section 33(1) of the 1979 Constitution”
On Issue 2, counsel submitted that the fact that the power of court was invoked under a wrong law or rule of court is no reason for setting the order aside, once the court has the power to make the order. He relied on the case of WITTS & BUSCH LTD VS. DALE POWER SYSTEM PLC [2007] 17 NWLR [PT 10672] 1 at 26, where the Supreme Court held:
“Where a court has jurisdiction to make an order, the fact that the power of the court is invoked under a wrong law or rule of court is no reason for not making the order or where it was made it is no reason for setting it aside. But in order to benefit from the principle, the facts relied upon must support the correct law to be applied.”
Counsel submitted that Order 9 Rule 12(1) of the Federal High Court [Civil Procedure] Rules 2000, which the trial court relied on, is pari materia with Order 26 Rule 12(1) of the Federal High Court [Civil Procedure] Rules, 2009 applicable at the time of the judgment appealed against. Thus, counsel said the decision of the lower cannot be set aside on the basis that it relied on a wrong law or rule. He also relied on the case CAC VS. RTCCC [2009] 11 NWLR [PT.1151] 40 at 54 – 55, where it was held:
“Where a relief or remedy is provided for by any written law or by common law or equity and it is properly claimed by a party seeking the relief or remedy, it cannot be denied the party simply because he has applied for it under a wrong law or Rule of law as to do so would partly be unjust.”
He urged us to resolve the Issue against the Appellant and dismiss the appeal.
RESOLUTION OF THE ISSUES
I think the two remaining issues by the Appellant can be considered together, that is, whether the learned trial judge was right to hold that the Exparte Order of the Federal High Court [Exhibit SK2] had lapsed after 14 days of its issue, relying on Order 9 Rule 12 (1) of the Federal High Court [Civil Procedure] Rules, 2000 and thereby making the Order Nisi, absolute.
I think I should comment on the role or duty of a garnishee in case of enforcement of judgment debt under the law. In the case of OCEANIC BANK PLC VS. OLADEPO [2012] LPELR – 19670 [CA] this court held:
“therefore, while alleging that the judgment debtor does not have sufficient money in his account with the Garnishee to satisfy the judgment debt, the Garnishee has a duty to disclose the true status of the Account of the judgment debtor… we have stated, several times, that it is not the business of a Garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. Of course, by playing games of hide and seek with the court, by failing or refusing to depose to affidavit to show cause, disclosing the true account status of the judgment debtor, the Garnishee only exposes itself to trouble, daring the court to do its worst…”
The Garnishee/Appellant, in this appeal had deposed at the court below to show that the accounts of the judgment debtor had been a subject matter of an exparte court order, made by the Federal High Court, Ikoyi, Lagos, in suit No. FHCLL/CS/1379/10 as per Exhibit ‘SKI’, ISSUED ON 29/11/2010; the said order had frozen the account of the 21st and 22nd Respondents with the Appellant, on the application of EFCC. That was an excuse which the Garnishee (Appellant) thought would justify its holding unto the judgment debt, ostensibly, hiding under the covers of an exparte order, secured by EFCC, freezing the accounts of the judgment debtor, about 8 months before the decision of the lower court in this appeal.
Of course, the trial court ruled the Garnishee (Appellant) out of order, when the learned trial judge observed that the exparte order which the Appellant relied on to keep the money, had expire (or lapsed), considering the legal fact that exparte order has a life span of 14 days, except renewed, and it relied on order 9 Rule 12(1) of the High Court (Civil Procedure) Rules, 2000.
One would have expected the Garnishee (Appellant) to give up the fight and obey the court order by paying the judgment debt, using the funds of the judgment debtor in its possession. By coming up with this appeal, as if Appellant were fighting on behalf of the E.F.C.C., or of the 21st and 22nd Respondents (who have not filed anything to show interest in this appeal), raises serious legal/moral question on the right/power of the Appellant to contest the order absolute, made by the trial court! It is, however, appreciated that as long as the Appellant hides under the claim that the exparte order of the court, made in November 2010 freezing the Accounts of the judgment debtor subsists, so long shall it hold on to the funds of the judgment debtor, for its business, without accounting to anybody, not even the EFCC that procured the order or the court, on the application of such funds!
Appellant is therefore wont to fight to retain the exparte order even when the EFCC may have abandoned it, not because it (Appellant) supports the EFCC that applied for the order, but to further its (Appellant’s) interest! That is the moral burden, which I think, lends extra justification for every exparte order to operate within very limited specified life span and to self-destruct, on expiration of 14 days, where no time span was assigned to it by the court that issued the order.
The Appellate courts have always deprecated the indiscriminate issuance of exparte orders, considering the tendency in the abuse of same, one of which is the likelihood of allowing such order to loam large and escape even the control of the court that issued it, where a smart litigant goads a court to issue it and would not bring the motion on notice to cause the other side to be heard on the application; or where the cause that warranted the issuance of the exparte order is abandoned, without a formal discharge of the order!
This appeal simply reminds us (as judicial system) of such inherent abuses of the use of ex-parte orders, which Appellant sought to exploit. I think the learned trial judge deserves commendation (not vilification as done by Appellant) for being watchful to pronounce on the effluxion of the ex-parte order (Exhibit SK1) issued by the Federal High Court on 29/11/10, after 8 months of issuance of that order, pursuance to the Rules of court! Though the learned trial court relied on Order 9 Rule 12(1) of the Federal High Court (Civil Procedure) Rules, 2000, which had been repealed, to make the order, that did not distract from the validity of the decision, since the same was still founded on a known written law, that is, Order 26 Rule 12(1) of the Federal High Court Civil Procedure Rules, 2009. See the case of WITTS & BUSCH LTD. VS. DALE POWER SYSTEMS PLC (2007) 17 NWLR (PT.1062) 1 at 26; CAC VS. R.T.C.C.C. (2009) 11 NWLR (Pt.1151) 40 AT 55 – 56.
In a recent decision of this court in the DR. N. S. NWAWKA VS. MR. SAM ADIAKAMKWU: CA/K/155/2009, delivered on 20/2/14, page 27 thereof, we held: relying the case of WITTS & BUSCH VS. DPS PLC [2007] AFWLR (PT.382) 1826 at 1827 to say that:
“the law is trite that where a court has jurisdiction to make an order, the fact that the power of the court is invoked under a wrong law or Rule of Court is no reason for not making the order and where it is made, it is not reason for setting it aside.”
See also FALABI VS. FALOBI [1976] 9 – 10 SC:
“Failure of a Applicant to indicate the Rule and order of Court under which an application is brought or to bring an application under the wrong order or Rule does not invalidate the application, provided the relief or remedy is provided for in any written law.”
Appellant cannot therefore fault the decision of the trial court, simply because the learned trial court founded it on the old Federal High Court (Civil Procedure) Rules, 2000, instead of the extant Rule of 2009.
I have already held that Appellant cannot fault the decision of the trial court that the order experte of the Federal High Court had expired by effluxion of time, and was no longer subsisting, and so the funds in the Accounts of the Judgment debtors (21st and 22nd Respondents) with the Appellant had therefore reverted to the custody, control and management of the Appellant to be applied by Appellant to satisfy the judgment debt.
In the case of ENEKWE VS. IMA LTD (1997) 10 NWLR (pt.526) 601 at 611, it was held:
“By their nature, injunction, orders granted exparte can only be properly interim in nature. They are made without notice to the other side to keep matters in status quo to a named date, usually not more than a few days or until the respondent can be put on notice. It is therefore wrong to make an exparte order or injunction ex-parte without fixing a date of hearing of the motion on Notice.”
Though by it very nature, the EFCC Act, particularly section 34(1) thereof, appears to be dictated by the exigency to fight financial crime, and allows the EFCC to apply by motion exparte for freezing of account, “if satisfied the money in the account of a person is made through the commission of an offence…”, I do no think that law intended to create a monster out of the EFCC, to just, at the slightest suspicion, whether real or imagined, cause the court to freeze an account by exparte order, indefinitely, without bringing the operator of the account to trial and giving him the opportunity to be heard on why the account is frozen. There is nothing in this case to show that after obtaining the ex-parte order on 29/1/2010, that the 21st and 22nd Respondents were arraigned for trial for any offence, or that there was any Motion on Notice, served on the 21st and 22nd Respondents for any hearing of any complaint relating to the freezing of the accounts by the E.F.C.C.
I have already stated why it will be extremely dangerous to allow such abuse of ex-parte orders. I therefore see nothing amiss in the decision of the learned trial court in holding that such ex-parte order had run its full course and had lapsed.
Order 26 Rule 12(1)(2) of the Federal High Court (Civil Procedure) Rules, 2009, says:
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 14 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 days of its being filed, the ex-parte order shall lapse”
Of course, that also implies that an ex-parte order shall lapse after 14 days of issue, whether or not there is an application to vary or discharge it, except the life span is extended by an order of court!
I therefore resolve the issues against the Appellant, and hold that the appeal is devoid of merit and should be dismissed. It is accordingly dismissed.
Appellant shall pay the cost of this appeal assessed at thirty thousand naira (N30,000.00) only, to 1st and 20th Respondent.
ABDU ABOKI, J.C.A.: The judgment prepared by my learned brother ITA G. MBABA, JCA, was made available to me earlier than now. I agree with his conclusions that appeal is devoid of merit and should be dismissed. I also abide by the consequential orders contained in the lead judgment.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree
Appearances
O. I. Habbeb Esq.For Appellant
AND
Kayode Fatuiyele Esq. for the 1st to 20th Respondent.For Respondent
