The right of appeal against Ex parte decisions and nullity of section 14 Court of Appeal Act 2004 as held in the case of S.P.D.C. v Erefamayo Fibika (2015) All FWLR (Pt. 777) 775 @ 793

By Olumide Babalola

Although, section 241(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) expressly provides for decisions (unconditional leave to defend; order absolute in favour of a petitioner who had time to appeal order nisi and consent judgement without leave) that are not appealable, section 14(1) of the Court of Appeal Act 2005 however provides thus:

“Where in the exercise by the High Court of a State or, as the case may be, by the Federal High Court of its original jurisdiction an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of 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.” (Emphasis mine)

Over the years, different divisions of the Court of Appeal have had to interpret the above provision to completely wrest the constitutional right of appeal against ex parte decisions of the Federal or State High courts from parties. For a complete appreciation of their judicial pronouncements, I shall venture to quote some of the consistent decisions on this side of the divide in their respective order of delivery:

On the 11^th day of December 2012, in Oceanic Bank v Michael Olusegun Oladepo (2012) LPELR 1960(CA), the Ilorin division of the Court of Appeal held thus:

“It must also be stated that there is no right of appeal against an ex-parte decision of the high court, such as the order nisi in this appeal, to the Court of Appeal – see section 14 (1) of the Court of Appeal Act, 2004.” Per Mbaba, JCA

Three years later, the Owerri division in Shell Petroleum Development Company Ltd v Registrar Business Premises, Abia State (2015) LPELR – 24285 CA held thus:

“…It should also be appreciated that the trial Court, having heard the motion ex-parte and granted leave for the Respondent to apply for the prerogative writ of order of mandamus, the Appellant cannot raise the issue on appeal, that the suit is not one for application for that form of relief -Order of mandamus, as that would amount to, an appeal against the ex-parte decision and a challenge to the discretion of the lower court. See Section 14 (1) of the Court of Appeal Act, 2004, which bars right of appeal against ex-parte decision of the High Court. See also Oceanic Bank Plc v Oladepo & Anor (2012) LPELR -19670 CA; (2013)3 WRN 74; Project Nineteen Ltd. & Anor v Aziz/Stacons & Associates (2014) LPELR -23736 (CA), where it was held that “by law, Appellants cannot raise appeal against an ex-parte order of the trial Court”

Again, in Nichola Igbokwe v Christian Edom (2015) LPELR -25576(CA), it was held thus:

“But the next problem would be, whether Appellant can appeal against a decision of the trial Court, made on an ex-parte application (touching purely on the exercise of its discretion)? This issue was what was considered, extensively in the case of Nwana v UBN Plc (2015) 1 NWLR (pt.1439) 79, where Appellant had appealed against a purely discretional decision of the Lower Court, sending a suit back to the general cause list for hearing and determination. It was held: “Apart from the provisions of the Constitution of the Federal Republic of Nigeria, 1999, (as Amended) which bars an appeal against a decision of the Federal High Court or any High Court granting unconditional leave to defend an action, an appellant lacks credible basis to question the exercise of such discretionary powers by a trial Court where the discretion was exercised judicially and judiciously (Military Gov. of Lagos State v Adeyiga (2012) 5 NWLR (pt.293) 291 referred to). Section 14(1) of the Court of Appeal Act 2004, says: “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 or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of 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.”

Also on this wavelength, see also decisions in Nigerian Agip Oil Company v Oginni (2011) 2 NWLR (Pt. 1230) 131 @ 151 and Garba v Ummuani (2012) LPELR -9841(CA.

Surprisingly, as far back as the 4^th day of November 1988, the Supreme Court has alluded to the invalidity of the provision of section 15 of the Court of Appeal Act as it pertains to right of appeal against ex parte decisions in the case of Aqua Ltd. v. Ondo State Sport Council (1988) NWLR (Pt. 91) 622 where Karibi-Whyte, JSC held thus:

It is an elementary and fundamental proposition that a right conferred by the Constitution cannot be taken away by any other provision except by the Constitution itself. The Constitution having conferred a right of appeal as of right, the Court of Appeal Act, or rules of practice made under the Act which derive their force from the Constitution cannot take away such a right. Any law so made will be inconsistent with the constitutional provision and void” (Emphasis mine)

Interestingly, in June 2014, the Port Harcourt division of the Court of Appeal was invited to determine the constitutionality of the provision of section 14(1) of the Act in the case of S. P. D.C v Fibika (2015) All FWLR (Pt. 777) 775 @ 793 and the court, per Garba, JCA held thus:

“On the provision of section 14(1) of the Court of Appeal Act, they seem to provide that no appeal shall lie from any order made exparte by the Federal High Court or a State High Court, to this court. However, the provisions have been held to be void in view of the right of appeal vested in parties or persons interested either as of right or as the case may be with leave of court against decisions of the High Court or Federal High Court… It purports to take away such right with regard to any order made ex parte or by consent of parties or in relation only to costs. This is inconsistent with the constitution and as such, section 15(1) of the Court of Appeal Act 1976, to the extent of its inconsistency with the constitution is void. Section 15(1) of the Court of Appeal Act referred to in the above weighty statement is the one repeated word for word in section 14(1) of the Court of Appeal Act 2004… To the best of my knowledge, the above provision of law stated by the apex court and followed by this court in Oyawole v Shehu and N.S.E. Co. Ltd v O.S.M. Ltd has not been set aside, departed from or overruled by the apex court up to today. That is the extant position of the law which binds not only the courts below but the apex court itself while it pends.” (Emphasis mine)

From the foregoing subsisting decision of the Court of Appeal above, it appears crystal clear that section 14(1) of the Court of Appeal act has been declared void, hence further reliance on same is, with respect, unconstitutional and of no effect.

Conclusively, in spite of the reality of the invalidity and unconstitutionality of the section 14(1) of the Court of Appeal Act as declared by the court concerned, it is sad to see counsel and judges alike rely on same provisions to deny prospective appellants their rights of appeal against ex parte decisions. See also similar decisions in Okon Utuk v The Official Liquidator (Utuks Construction and Marketing Company Ltd.) & Anor. (2008) LPELR – 4323(CA)

Olumide Babalola, managing partner, Olumide Babalola LP writes from Lagos.