LEGAL PRINCIPLE: CIVIL PROCEDURE — Abuse of Court Process — Obtaining Ex-Parte Order During Pendency of Application in Higher Court
PRINCIPLE STATEMENT
Obtaining an ex-parte order from a lower court while an application is pending in a higher court, with notice to the other party, is capable of obstructing the higher court's order and constitutes an abuse of process.
RATIO DECIDENDI (SOURCE)
Per Ogebe, C.JCA, in Abubakar & Ors v. Unipetrol Nigeria Plc (2002) NLC-1121997(SC) at p. 4; Paras C–D.
"The fact that the applicant did not appeal against the order of the trial court releasing the judgment sum to the 1st and 2nd respondents does not affect the merit of this application. The applicant has been able to satisfy this court on the two things required in an application of this nature: (1) that the act complained of was performed while an application was pending before this court and the other party had notice of it; (2) that such act was capable of obstructing whatever order this court might wish to make on this application."
EXPLANATION / SCOPE
It is an abuse of process to obtain an ex-parte order from a lower court while an application is pending in a higher court. The party must show: (1) the act was performed while the higher court application was pending and the other party had notice; (2) the act was capable of obstructing the higher court’s order. The principle prevents parties from frustrating the appellate process. The higher court has jurisdiction to reverse steps taken to steal a match. The party need not have appealed the lower court order. The rule protects the integrity of appellate proceedings. The court will restore the status quo. The principle applies to all courts.
