Dire Need For A Change In Preparation Of A Motion Ex-Parte For Use In Nigeria Courts By S.O. Giwa Esq. – TheNigerialawyer

The word ‘ex-parte’ means done or made at the
instance and for the benefit of one party only, and without notice
to, or argument by, any person adversely interested; of or relating
to court action taken by one party without notice to the other,
usually for temporary or emergency relief[1]

It also means ‘‘by or for one party, ‘‘done for, or on behalf,
or on the application of one party only’[2].  A judicial
proceeding is said to be ex-parte when it is taken
or granted at the instance and for the benefit of one party only
and without notice to or contestation by any person adversely
interested or affected[3].

In a legal parlance, a motion ex-parte is one in which the other
party to the suit is not put on notice. It is used where, from the
nature of the application, there ought not to be any opposition to
it, such as where the prayers sought affect the interest of the
applicant only or where at the stage the application is made, the
other party cannot be put on notice[4]

By definition, an ex-parte application
christened in law as ‘a motion ex-parte’ is one
made without the other side being put on notice. Hence, the only
participant is the party moving the motion to the exclusion of the
opposite party.

Contrary to the known status of ex-parte
application in the legal parlance is the emergence of an ex-parte
motion termed as ‘opposed ex-parte motion’ in
Pickwick International (GB) Ltd vs. Multiple Sound Distributors and
another (1975) All ER 384 @385 referred to in Fawehinmi vs. Akilu
(1989) 3 NWLR (Part 112) [email protected]^[1]
698 wherein Meggary, J (as he then was) said:

‘At this stage, I may mention a procedural point on
which         there appears to
be no reported authority. Both before me
        and before the Court of
Appeal the defendants were present at the hearing of the ex-parte
application, and      took part in it in order
to assist the court. The ex-parte   motion thus becomes what
may be termed as ‘OPPOSED      EX-PARTE
MOTION’. The fact that this is a contradiction in terms ought not
to be allowed to obscure the utility of
        the process. The
practice seems to be of comparatively     recent
origin, though it has been pointed out to me that
      at least to some extent it may be a
reversion to a procedure in the early part of the last century
which, if    not usual, was at least
permissible.’’   

In Nigeria Cement Co. Ltd vs. N.R.C[5], it was further
settled that the affected party if becomes aware of the pendency of
an ex-parte application upon showing how he became aware of the
said ex-parte application may apply to the court to take part to
assist the court.

However, it has been settled through decided cases options open
to the affected party where an affected party becomes aware that an
ex-parte application particularly application for interim
injunction is pending before the court to include affected party’s
right to apply to the court to take part in the proceedings of the
hearing of an ex-parte application via filing of a counter
affidavit or a motion on notice seeking leave of the court to be
heard in opposition using the counter-affidavit attached to his
motion or alternatively ask for an order not to entertain the
ex-parte application but that the applicant should put the affected
party on notice.

Putting the legal position on right of affected party to be
heard in the hearing of ex-parte application into further test for
court pronouncement is an unreported Oyo State High Court Suit No.
HOY/9/88 of 22.1.88 between Amuda Olorunkosebi and Oba Adeyemi
& Ors

In the case, an expensive and elaborate arrangement had been
made by M.K.O Abiola who was to be installed the Are Ona Kakanfo of
Yoruba land by the Alafin of Oyo on a named Saturday. On Wednesday
prior to the named Saturday, the plaintiff filed an ex-parte
application in the High Court at Oyo to restrain the Alaafin and
Abiola from carrying out the ceremony. The motion ex-parte was
fixed for Thursday. In the afternoon of Wednesday, the Alaafin
learnt about the filing of the ex-parte application but did not
know the details. The Alaafin called on phone his lawyer, Afe
Babalola, who then promptly paid necessary fees to search the court
file; obtained a copy of the ex-parte motion and filed a
counter-affidavit and motion on notice to be heard in opposition.
The motion ex-parte upon hearing was dismissed by the judge,
Justice Aderemi. The position taken by the judge is in consonance
with decisions of the Court of Appeal in Fawehinmi vs. Akilu[6]
wherein the above legal position on granting leave to affecting
party to be heard in the hearing of motion ex-parte was further
given an approval.

Much as it is no gainsaying that flowing from the above decided
cases, the opposing party may at the hearing of a motion ex-parte
for an order of interim injunction apply to the court for leave to
take part in the proceedings in opposition to such motion, it is
pertinent to pose a question thus: Is the principle on
opposing party’s right for leave to be heard in an ex-parte
application for an order for interim injunction applicable to all
cases in legal parlance?

It is fundamentally important to unequivocally state that in
legal parlance there are two main circumstances which, as decided
in Leedo vs. Bank of the North[7] and Attamah vs. Anglican
Bishop[8], an application ex-parte could be made. These are:
(i) when, from the nature of the application, the interest[9] of
the adverse party will not be affected and (ii) when time is the
essence of the application.

Flowing from the above settled main circumstances is that it is
not in all cases where interest of an adverse party is affected as
there are circumstances where for reason of time being of essence,
an ex-parte application is also required. Hence, there are other
specific cases where motion ex-parte may be made apart from when
the interest of an adverse party is affected, i.e. where according
to the practice existing at the time of the passing of the High
Court Law of the State, any order must be made absolute ex-parte in
the first instance such as ex-parte application to serve other
party by substituted means; ex-parte application for leave to serve
outside jurisdiction; etc. How then can the principle in question
be applicable in the aforementioned cases?

It is equally needed to be said that the principle in focus is
not applicable to ex-parte application for remand order provided
for under the Administration of Criminal Justice Act[10]
domesticated in some States of the Federation as the defendant has
no interest to be affected.

It is my candid opinion that application of any principle laid
down or established in any decided case is not ipso facto
automatically applicable to all cases if the facts are in all fours
dissimilar and stretching the principle to full length of all cases
of ex-parte application would call for a reversion to a procedure
of hearing of ex-parte application without the other side being
heard.

It is the law that authorities to be cited should be related to
their facts and not cited out of context as a case is authority
only for what it decided. Hence, the cases wherein principle of
granting affected party right to apply for leave to be heard in an
ex-parte application for an order for interim injunction is an
authority for what the court decided in those authorities under
focus.

It is finally recommended at this juncture that for ex-parte
application of any kind not to be opposed, there must be a change
in description of parties on the motion ex-parte often filed in
court. In clearer term, having applicant and respondent described
on any ex-parte application to my mind suggest that a party
described as respondent has right to oppose the said application if
he is aware of the pendency of the said application.

The word ‘respondent’ in law connotes a party against whom a
process is filed. Why then does the ex-parte application filed
against a person not to be opposed?

It would be safe and recommended that the description of a party
on any ex-parte application should be confined and limited to only
the applicant without mentioning or describing any other party as
respondent.

It is my stand that any party mentioned or described on any
application be it motion ex-parte or any other application is duty
bound to respond because a respondent mentioned on the application
is a party whose response is direly needed and required. If a
motion ex-parte is without any reference or description of any
party as respondent, non-mentioning  or absence of description
of any other party as respondent would clear the issue of awareness
of the adverse party of the pending ex-parte application in court
and the meaning of the word ‘ex-parte’ would remain intact and put
an end to application of principle granting adverse party right to
be heard upon application of the adverse party for leave to be
heard in ex-parte application in a situation where the adverse
party is aware of the ex-parte application pending against him in
court.

It would be beneficial and wise enough to have a change in the
preparation of any ex-parte application vis-à-vis inclusion of
other party often described as respondent whose right of being
heard is denied if the ex-parte application is to retain its status
of being for the applicant’s alone.

Finally, it is advisedly suggested that since a single person
cannot tangle on a matter, the inclusion of other party in the
description of parties on ex-parte application for whatever purpose
or reliefs needs to be looked into with a view to putting an end to
the protection of the applicant’s right unjustly against unjust
party described as respondent being denied or prevented from
responding.

[1] Black’s Law Dictionary, 9^th Edition

[2] Introduction to Civil Procedure, 2^nd
Edition by Ernest Ojukwu and Chudi N. Ojukwu

[3] ibid

[4]Civil Procedure in Nigeria, 2^nd Edition
2000 by Fidelis Nwadialo at page 553

[5] (1992) 1 NWLR (Part 220) 747 @ 760

[6] (supra)

[7] (1998)[email protected]^[2]

[8] (1999) 9 SCNJ 23

[9] a legal share in something; all or part of a legal
or equitable claim to or right in property.

[10] Section 293

S.O. Giwa Esq. A.K.A Pentalk (Ibadan based
Legal Practitioner)

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