LEGAL PRINCIPLE: APPELLATE PRACTICE – Abuse of Process – Filing Application to Comply with Order Pending Appeal Not a Bar to Appealing Against Same Order
PRINCIPLE STATEMENT
Complying with the order of conditional stay of execution ordered by the court below cannot estop the applicant from appealing against that order, if it so desires. And it cannot be an abuse of process of court to exercise, bona fide, one's undoubted right to appeal conferred by the Constitution. I should not be taken as saying that the improper exercise of a right of action to the prejudice of the administration of justice is permissible. I have quoted the above passage to illustrate the general principle that a proper exercise of a constitutional right of appeal, as was done in the instant case, which was not intended to harass, irritate, annoy or interfere with the course of justice, but aims at protecting the rights in the litigation of the party exercising the constitutional right cannot in my respectful view be regarded as reckless or frivolous, so as to constitute an abuse of the judicial process.
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, in Central Bank of Nigeria v. Ahmed & Ors (2001) NLC-92001(SC) at pp. 49–50; Paras D–A.
"Complying with the order of conditional stay of execution ordered by the court below cannot estop the applicant from appealing against that order, if it so desires. And it cannot be an abuse of process of court to exercise, bona fide, one's undoubted right to appeal conferred by the Constitution. I should not be taken as saying that the improper exercise of a right of action to the prejudice of the administration of justice is permissible. I have quoted the above passage to illustrate the general principle that a proper exercise of a constitutional right of appeal, as was done in the instant case, which was not intended to harass, irritate, annoy or interfere with the course of justice, but aims at protecting the rights in the litigation of the party exercising the constitutional right cannot in my respectful view be regarded as reckless or frivolous, so as to constitute an abuse of the judicial process."
EXPLANATION / SCOPE
Complying with a conditional stay order does not estop a party from appealing that order. Exercising the constitutional right to appeal bona fide is not abuse of process. Compliance is not waiver. The right to appeal is undoubted. Abuse requires improper exercise—harassment, irritation, annoyance, or interference with justice. Proper exercise aimed at protecting rights in litigation is not reckless, frivolous, or abusive. The court distinguishes between exercising a right and abusing it. The mere act of complying with an order does not indicate acceptance of its validity. A party may comply while preserving the right to challenge. The purpose and manner of exercise determine abuse.
