CIVIL LITIGATION: INTERLOCUTORY APPLICATION THROUGH CASES AND PRINCIPLES

What is Interlocutory Application?

In UGO V UGO (2008);

            An interlocutory application is an application which does not decide the rights of the parties but are made for the purpose of;

·         Keeping things in status quo till the rights of the parties can be decided

·         Obtaining some directions of the court as to how the cause of action is to be conducted

·         Determining what is to be done in the progress of the cause of action for the purpose of enabling the court ultimately to decide upon the rights of the parties.

Therefore an order of court is interlocutory where it does not deal with the final rights of the parties.

However, you must know that the court is not a Father Christmas; it cannot grant you what you have not asked for. This was affirmed in the case of BENNETH N OKERE V PRINCE O.D AMADI SC.64/2000, were Dahiru Mustapha J.S.C stated that

            ‘’it is  an elementary law that needs no citation of any authority that a court is not a FATHER CHRISTMAS, its jurisdiction is generally limited to the issues presented t it.’’

This affirms with the position of law school that the OMNIBUS order is of no effect, in our interlocutory application.

In FALOBI V FALOBI the issues resolved by the court are;

1.      CAN A COURT MAKE AN ORDER, NOTHWITSTANDING THAT THE APPLICATION TO IT WAS MADE UNDER ANOTHER STATUTE WHICH IS CLEARLY IN-APPLICABLE?

The court stated that in our own view, if a relief or remedy is provided for by any written law (or by the common law or in equity for that matter) that relief or remedy if properly claimed by the party seeking it, cannot be denied for the applicant simply because he has applied for it under the wrong law. TO DO SO WOULD BE PATENTLY UNJUST

2.      ON CONFLICTING AFFIDAVIT

The court held that when a court is faced with Affidavits which are irreconcibly in conflict, the judge hearing the case in order to resolve the conflict properly should first hear oral evidence from the depositions or such other witnesses as the parties may want to call.

NOTES FROM CLASS:

ON ISSUE 1 from this court, it is an exception to the rule in ORDER 39 RULE 1 (1) HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULE 2012 which states

‘’That every application made by motion and supported by affidavit shall STATE UNDER WHAT RULE OF COURT OR LAW THE APPLICATION IS BROUGHT”

ON ISSUE 2: On conflicting affidavit, Our Lecturer told us that in practice he supported his submission with the case of NWOSU V IMO STATE ENVIRONMENTAL SANITATION AUTHORITY where the court stated that;

            “Although it is necessary to call oral evidence when there is conflict in an affidavit but where there is an AUTHENTIC DOCUMENTARY EVIDENCE which supports one of the affidavits in conflicts with another, that document is capable of tilting the balance in favor of the affidavit which agrees with it”

FURTHERMORE ON MOTION

GENERAL RULE: All Motions should be on notice, this is affirmed by ORDER 7 RULE 7 (1) ABUJA and ORDER 39 RULE 3 (1).

REASONS:

·         To uphold the principle of Fair Hearing  see KOTOYE V CBN

·         To prevent a spring of surprises to the opposite party

·         To give room for adequate preparation for the opposite party.

However, the EXCEPTION to this rule is MOTION EX PARTE

By virtue of ORDER 7 RULE 9 ABUJA : A party moving a court ex parte may support his motion by argument addressed to the court on the facts put in evidence, while the OTHER PARTY to the proceeding although PRESENT in court SHALL NOT BE HEARD

This was affirmed in the case of ABIOLA AND SONS NIGERIA LTD V 7 UP BOTTLING COMPANY LTD; Where the court explained the reason why the other party will not be heard to be based on the fact that the application before it has no contentious issues before granting it.

KOTOYE V C.B.N

RULE 1: ON SELF-INDUCED URGENCY WILL NOT WARRANT THE GRANT OF THE APPLICATION OF EX-PARTE INJUCTION

The honorable court stated that an Injunction is a serious matter, and must be treated seriously, if there is a plaintiff who has known about a proposal ten weeks in general terms and for nearly four weeks in detail, and he wants injunction to prevent effect being given to it at a meeting of which he has known for over a fortnight, then he needs to give a cogent explanation.

The court went further and stated that an Ex-parte injunction are for real urgency, were there has been a true impossibility of giving notice of motion.

I believe that the honorable court is aligning itself with the principle of equity that EQUITY AIDS THE VIGILANT AND NOT THE INDOLENT.

RULE 2: ON FILLING OF EX-PARTE APPLICATION FOR INTERIM INJUCTION

The court stated that it is settled that a person who seeks an interim order ex-parte while also applying for an interlocutory injunction files two motions;

·         Motion ex-parte asking for the interim order

·         Other one on notice applying for an interlocutory injunction.

This rule affirms the rule in ORDER 7 RULE 7 (3) that states that: A motion ex-parte for interim injunction shall not be heard unless a motion on notice has been filled

Consequently the court in LEEDO PRESIDENTIAL MOTEL LTD v. BANK OF THE NORTH (1998) 7 SCNJ 328 laid down instances where MOTION EX PARTE is used;

1)      Where from the nature of the application, the interests of the adverse party will not be affected

2)      In situations of real urgency where time is of the essence of the application; such as where irreparable loss or serious mischief may be occasioned by following the due process of putting the other party on notice.

3)      Where its use is expressly required by any Law or Rule. For instance, it is a mandatory originating process in applications for the prerogative writs such as mandamus, certiorari, habeas corpus ets; it is required by the Rules for third party proceedings, substituted service, renewal of a writ, application for leave to issue a process etc.

MODES OF FILLING A MOTION EXPARTE

·         Originating Process e.g Writ of Summon

·         Frontload the Writ of summon as prescribed by the Rules of the court

·         Motion Ex Parte for Interim Injunction pending the determination of the motion on Notice for interlocutory injunction or until a stated time

·         An affidavit in support of your application

·         Affidavit of urgency

·         Written address.

·         A motion for interlocutory injunction+ Affidavit+ written address

TO BE CONTINUED. THANKS.