Jurisdiction of Appellate Court to Grant Ex-Parte Interim Orders

In the Supreme Court of Nigeria

Holden at Abuja

On Monday, the 1st day of June, 2025

Before Their Lordships

Mohammed Lawal Garba

Tijjani Abubakar

Chioma Egondu Nwosu-Iheme

Haruna Simon Tsammani

Stephen Jonah Adah

Justices, Supreme Court

SC/CV/1130/2025

Between

Neconde Energy Limited                                                                      Appellant

                                                 And

1.    FBNQuest Merchant Bank Limited

2.    First Trustees Limited

3.   Nestoil Limited

4.   Ernest Azudialu-Obiejesi

5.  Nnenna Obiejesi                                                                               Respondents 

(Lead Judgement delivered by Honourable Stephen Jonah Adah, JSC)

Facts

The 1st and 2nd Respondent are the Plaintiffs in a creditor’s action at the Federal High Court in Suit No. FHC/L/CS/2127/2025, where they seek to recover approximately $2 billion, allegedly borrowed by the 3rd Respondent from a consortium of lenders, and guaranteed by the Appellant, the 4th and 5th Respondent. Along with their originating processes, they filed an Ex-parte application for interim preservative orders which was granted by the court against the Appellant, and the 3rd to 5th Respondent. Upon receipt of the originating processes and the Ex-parte Orders, the affected parties filed an application to discharge the orders, and simultaneously wrote a petition to the Chief Judge of the Federal High Court, accusing the trial Judge of bias, and requesting a transfer of the case to another Judge of the court. At the intervention of the Chief Judge, the matter was transferred to another Judge. This informed the appeal by the 1st and 2nd Respondent, who furnished the Chief Judge with a copy of the Notice of Appeal with a request for a copy of the petition lodged by the Appellant and the 3rd to 5th Respondent, so that the 1st and 2nd Respondent could make representations to the Chief Judge. The matter was re-assigned to a new Judge of the Federal High Court.

At the proceedings of 20th November, 2025, before the new Judge, the attention of the court was drawn to the outstanding issues, including the pending Notice of Appeal and application for stay of proceedings before the appellate court. Further to this, the trial court discharged the Ex-parte preservative orders on the ground that same had lapsed by effluxion of time. Dissatisfied with the decision, the 1st and 2nd Respondent filed a Notice of Appeal to the Court of Appeal on 21st November, 2025. Along with the Notice of Appeal, they filed a Motion on Notice seeking a suspension of the orders of the trial court, and injunctive relief. Subsequently, on 26th November, 2025, they filed Motion Ex-parte and withdrew the Motion on Notice filed earlier. The Court of Appeal heard the Ex-parte application and granted same on 27th November, 2025.

The Appellant, piqued by the decision of the Court of Appeal, lodged an appeal to the Supreme Court. The 1st and 2nd Respondent, on their part, raised a Notice of Preliminary Objection.

Issues for Determination

The Preliminary Objection challenged the competence of the appeal, mainly on the basis that the grounds relate to issues of fact and mixed law and facts for which the Appellant ought to have sought and obtained the leave of court before filing.

On the substantive appeal, two issues were considered by the court in its determination of the appeal, thus:

i. Considering amongst others, the stage of the proceedings (inter parties) leading to the decision of the trial court (appealed to the lower court) and the stage of the proceedings at the time of the lower court‘s orders of 27th November, 2025, (Ex-parte and without a record of appeal or processes filed at the lower court as exhibits) vis-à-vis the provisions of Sections 239-242 of the 1999 Constitution and the Rules of the lower court, whether the lower court was correct and had the jurisdiction to make its Ex-parte Orders of restorative and restraining injunction.

ii. In view of the entire circumstances of the proceedings before the lower court, which culminated in its Ex-parte Orders of 27th November, 2025, whether the said Ex-parte Orders of the lower court staying proceedings of the trial court were rightly made.

Arguments

Arguing the Preliminary Objection, the 1st and 2nd Respondent submitted that the grounds of appeal are in substance grounds of mixed law and fact, stating that classification of ground of appeal is not determined by ingenuity of Counsel or its labelling, but by the real substance of the complaint as shown in its grounds and particulars – ALLANAH v KPOLOKWU (2016) 6 NWLR (PT. 1507) 1. They posited that the complaints here are directed at the exercise of judicial discretion in granting the Ex-parte Orders. They, therefore, argued that these grounds cannot be classified as grounds of law, but at best grounds of mixed mixed law and facts requiring prior leave of court before appeal. 

The Appellant countered the submission, arguing that by Section 131 of the Evidence Act, the onus rests on the objectors to establish their assertion that the grounds of appeal are not of law, but they failed to discharge this burden. Importantly, that Section 233(2)(a)-(e) of the 1999 Constitution expressly confers rights of appeal in matters involving questions of law alone, constitutional application or interpretation, and alleged contravention of fundamental rights provisions. The Appellant submitted that its grounds of appeal fall squarely within the constitutional categories, including breach of Sections 239-242, and 36 of the Constitution, and the relevant provisions of the Court of Appeal Rules, 2021 in the grant of the Ex-parte Orders. It relied on AIC Ltd v TECHNIP (2023) 4 NWLR (Pt. 1875) 537.

On the substantive issues, the Appellant submitted on issue one that the Ex-parte application before the Court of Appeal, which resulted in the Ex-parte proceedings and orders, was not initiated by due process of law, and that the subject of the orders was not jurisdictionally available to the court as constituted. The Appellant submitted that the jurisdiction of the Court of Appeal to grant Ex-parte Orders, especially mandatory and prohibitive orders, is an exception to the general rule and regulated by a very strict regime. That the mandatory and prohibitive orders granted by the Court of Appeal in this instance could not have been accommodated within its jurisdiction to grant Ex-parte Orders, as the court was exercising appellate jurisdiction under Section 240 of the Constitution, not an original jurisdiction under Section 239 thereof. Thus, its jurisdiction is donated by the trial court and since the proceedings before the trial court was inter parties, the Court of Appeal lacked the jurisdiction to make Ex-parte Orders of injunction on issues arising from the inter parties proceedings. The Appellant argued further that, there was no appeal entered before the court and the originating processes as well as the ruling which formed the basis of the appeal, were not before the court before making the Ex-parte Orders.

On their part, the 1st and 2nd Respondent contended that the Court of Appeal has the power to make injunctive orders to preserve the res, where there is an appeal pending. That the filing of their Motion on Notice before substituting it with the Motion Ex-parte cannot operate as a permanent waiver of their right to seek Ex-parte relief, as withdrawal of an application is without prejudice to bring a fresh application on the same or similar relief. ALADE v ALIC (NIG.) LTD (2010) 19 WLR (PT. 1226) 111. They argued that failure to compile a record of appeal, is not a basis to challenge an Ex-parte Order. Further, they submitted that provisions of Order 6 Rule 1(a) of the Court of Appeal rules which require every application to be by notice of motion, does not fetter with the statutory and inherent powers of the court to made preservative orders ex-parte.

Arguing issue two, the Appellant submitted that the Ex-parte Orders of the Court of Appeal were in three layers – (i) restorative injunction; (ii) interim restraining injunction; and (iii) stay of proceedings before the trial court. The Appellant posited that the cumulative effect of the orders is that, equitable remedies were conferred upon parties who are not willing to prosecute the very action they initiated. Further, that the far-reaching orders were made without affording the Appellant an opportunity to be heard, in contravention of its constitutional right to fair hearing. It relied on the decision in WAGBATSOMA v F.R.N. (2018) 8 NWLR (PT. 1621) 199 AT 218, in support of its submission that the proceedings before the Court of Appeal was fundamentally defective and liable to be set aside. 

The 1st and 2nd Respondent countered the submissions above, stating that the Appellant misread both the facts and the law. On the contention that the order of stay of proceedings was defective and made without jurisdiction as no similar application was first made at the trial court, they submitted that the general principle admits of well-recognised exceptions, such as where it is impracticable to make such application first to the trial court. They contended that the courts allow injunction pending appeal under special circumstances, and that the grant of the Ex-parte Orders did not amount to breach of the Appellant’s right to fair hearing.

Court’s Judgement and Rationale

Deciding the Preliminary Objection, the Supreme Court referred to Section 233(2) of the 1999 Constitution, on when an appeal shall lie as of right to the Supreme Court. The court scrutinised the grounds of appeal and found that, in line with the law, the complaints embodied therein are strictly on questions of law, constitutional interpretation, fair hearing and jurisdiction. The appeal questions the proper interpretation and application of Section 240 of the Constitution, and Order 7 Rule 2 of the Court of Appeal Rules, 2021, as well as breach and non-observance of Sections 239 to 242 of the Constitution, together with complaints about denial of right to fair hearing under Section 36 of the Constitution. Grounds complaining of wrongful interpretation or application of constitutional and statutory provisions are, in law, grounds of law simpliciter. Likewise, issues touching on fair hearing and jurisdiction occupy a special and fundamental position in adjudication, as they strike at the competence and legality of the entire proceedings. Appeals on the foregoing questions, lie as of right under the relevant constitutional provisions. No prior leave of court is required before filing the appeal. Consequently, the Preliminary Objection failed, and the court dismissed same.

Deciding issue one, the Supreme Court held that by Order 6 Rule 1(a)of the Court of Appeal Rules 2021, applications shall, as a general rule, be brought on notice to the adverse party. The requirement is not a mere procedural formality,; it is a fundamental safeguard of the constitutional right to fair hearing, and the adversarial character of judicial proceedings. The law recognises narrow and exceptional circumstances in which a court may entertain an application ex-parte, one of the most common being an application for substituted service. Outside such limited and clearly defined exceptions, the jurisdiction to proceed ex-parte must be exercised with utmost restraint and circumspection. In this case, no exceptional circumstance existed to justify the invocation of the Ex-parte procedure. There was no urgency or special circumstance warranting the denial of the opponents’ right to be heard before Orders affecting their interests were made. Further, the appeal before the Court of Appeal was interlocutory with the principal controversy before the trial court. Courts of law must be vigilant to ensure that interlocutory proceedings remain ancillary to, and not destructive of the principal action. Interim injunctions are granted sparingly and are never intended to confer perpetual advantage upon one party. Their purpose is limited: to hold the balance of convenience for a short period until the court can properly inquire into the merits of the case – MOHAMMED v VIRGIN TECHNOLOGIE LTD & ANOR. (2026) LPELR-83068(SC). The reliefs sought by the Motion Ex-parte before the Court of Appeal, seek a reversal of acts already carried out pursuant to an earlier order of court. It has a mandatory and restorative character, unlike ordinary interim injunctions which are preservatory. Such relief substantially grants immediate affirmative relief, before the determination of the substantive issue. The relief, no doubt, cannot be said to be given Ex-parte by any court.

The Apex Court observed further that, the Ex-parte Order was granted when the appeal had not yet been entered. In interlocutory appeals, the trial court is not automatically divested of jurisdiction over the substantive suit merely because a Notice of Appeal has been filed. The trial court remains competent to proceed with the hearing of the matter, until the appeal is duly entered before the appellate court. It follows that the application for interim injunction filed before the lower court, at a stage when the Record of Appeal had not been transmitted and the appeal had not been entered, was fundamentally misconceived. It amounted to a misuse of the appellate process. This Supreme Court, accordingly, resolved this issue in favour of the Appellant.

Resolving issue two raised, the Apex Court held that the Ex-parte Orders of the Court of Appeal did not only exceed the recognised purpose of interim Ex-parte reliefs, the court also granted an order staying further proceedings in the substantive suit initiated by the party who sought the order of stay of proceedings. A litigant who voluntarily invokes the jurisdiction of a court, is ordinarily presumed to desire the expeditious determination of his claims. The Order of stay effectively paralysed the proceedings, without any demonstrable legal necessity It served no legitimate adjudicatory objective, and finds no support in the established principles governing the grant of Ex-parte reliefs. Ex-parte jurisdiction is an exceptional jurisdiction, to be exercised sparingly, cautiously and only in circumstances of real urgency. It is not a mechanism for obtaining strategic advantages, or frustrating the orderly progress of judicial proceedings. This issue was also resolved in favour of the Appellant.

Appeal Allowed.

Representation

Chief Wole Olanipekun, SAN; Bode Olanipekun, SAN; Mofesomo Tayo-Oyetibo, SAN with others for the Appellant.

Babajide Koku, SAN; Victor Ogude, SAN; Omosanya Popoola, SAN with others for the 1st and 2nd Respondents.

Dr Muiz Banire, SAN with Others for the 3rd Respondent.

Chinenye Edmund Obiagwu, SAN with Others for the 4th Respondent.

Kehinde Ogunwumiju, SAN; Chikaosolu Ojukwu, SAN; Ademola Abimbola, SAN with others for the 5th Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)