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THE NATURE OF EX PARTE INJUNCTIONS

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Dictum

Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419: Nnaemeka Agu, JSC stated the distinction between “ex parte” & “injunction”: I think it is correct to say that “ex-parte” in relation to injunctions is properly used in contradistinction to, “on notice” – and both expressions, which are mutually exclusive, more strictly rather refer to the manner in which the application is brought and the order procured. An applicant for a non-permanent injunction may bring the application ex-parte, that is without notice to the other side or with notice to the other side, as is appropriate. By their very nature, injunctions granted on ex-parte applications can only be properly interim in nature. They are made, without notice to the other side, to keep matters in status quo to a named date, usually not more than a few days, or until the respondent can be put on notice. The rationale of an order made on such an application is that delay to be caused by proceeding in the ordinary way by putting the other side on notice would or might cause such an irretrievable or serious mischief. Such injunctions are for cases of real urgency. The emphasis is on “real.”

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EX PARTE INJUNCTIONS ARE FOR CASES OF REAL URGENCY

Megarry, J., as he then was, put the principle rather succinctly in the case of Bates v. Lord Hailsham of Marylebone (1972) 3 All ER. 1019 at p.1025 where he stated: An injunction is a serious matter, and must be treated seriously. If there is a plaintiff who has known about a proposal for ten weeks in general terms and for nearly four weeks in detail, and he wants an injunction to prevent effect being given to it at a meeting of which he has known for well over a fortnight, he must have a most cogent explanation if he is to obtain his injunction on an ex-parte application made two and a half hours before the meeting is due to begin. It is no answer to say, as counsel for the plaintiff sought to say, that the grant of an injunction will do the defendants no harm, for apart from other considerations, an inference from an insufficiently explained tardiness in the application is that the urgency and the gravity of the plaintiffs case are less than compelling. Ex-parte injunctions are for cases of real urgency, where there has been a true impossibility of giving notice of motion.

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EX PARTE ORDERS LAST FOR 14 DAYS ONLY OR THE DATE FIXED FOR THE HEARING OF THE MOTION ON NOTICE

Now, it must be acknowledged and emphasized that the said freezing order made on 29/11/2010 was made ex-parte. Implicit in that is the law that exparte orders are by their very nature not intended or meant to last forever, but to have a short life span, usually for 7 or 14 days depending on the Rule of Court unless renewed, or pending the hearing of a motion on notice. The reason for this is not far fetched. Being orders made behind the other Party, and usually for exigencies to maintain the status quo, ex-parte orders cannot have a long life span and indeed automatically die after the 14 days by Order 26 Rule 12 (1) of the F. H. C. (Civil Procedure) Rules, 2009 , or until the motion on notice is heard. This position was succinctly stated in the case of Enekwe Vs Ima Ltd (1997) 10 NWLR (Pt. 526) 60I at 611. When the Court held:- By their nature, injunction, orders granted ex parte can only be properly interim in nature. They are made without notice to the other side to keep matters in status quo to a named date, usually not more than a few days or until the Respondent can be put on notice. It is therefore wrong to make an ex-parte without fixing a date of hearing of the motion on Notice.” An ex-parte order which invariably affects a party who is absent at the proceedings in the Court when the order is made, must necessarily have a very short life span otherwise the order would come in conflict with the right of fair hearing enshrined in Section 36 (1) of the Constitution, FRN, 1999 (as amended) . They must therefore be made to last until a given date, not more than a few days. Isyaku vs. Master (2003) 5 NWLR (Pt.814) 443, Such an ex-parte order shall not be allowed by the Court of justice and equity to, last indefinitely, Goddy Okeke & Ors Vs. Chief Michael Ozo Okoli & Ors (2000) 1 NWLR (pt. 642) 641 per Fabiyi JCA, (as he then was). Surely, the ex-parte order runs its course to the date named in the order, usually not more than 14 days in the case of the Federal High Court, or until the motion on notice is heard. Where a motion on notice is not filed or moved, at the expiry of the exparte order, the said order without the need for an application to set it aside, becomes ineffectual. Whether or not a date is named for the life span of an ex-parte order or for the hearing of the motion on notice, the life of an ex-parte order comes to an end at the expiry of 14 days provided by Order 26 Rule 12(1) of the Rules of the Federal High Court , unless life is again breathed into it to resuscitate it by an extension or a renewal of the order by the Court. Where none of these is done or the cause for its issuance is abandoned or spent, the exparte order, without a formal application for its discharge, becomes discharged and ineffectual.

— A.A. Wambai, JCA. Skye Bank v. Haruna & Ors. (CA/K/264/2011, 17th December, 2014)

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COURT WILL SET ASIDE MOTION EX PARTE MADE ON SUPPRESSED FACT – ISSUE OF FAIR HEARING DOES NOT ARISE

Further, the Appellant alleged lack of fair hearing, to this I would say that the allegation was not substantiated. It is not enough to waive the flag of lack of fair hearing and nothing more. Fair hearing is a two way traffic which both parties ought to enjoy or entitled to. The Respondent in the present case was entitled to be heard before an order that affects him should be made and having been made ex – parte, the Respondent was entitled to have it reviewed by the trial court after other facts with exhibits in support were made known to the lower court as deposed in the affidavit in support of the application to set aside the ex – parte order before the expiration of the 120 days granted. See, MFA & ORS VS. INONGHA (2014) (supra). If the Appellant had laid down the facts of the case as they were at the time the lower court granted the application, the lower court would not have been misled to have granted the ex – parte order which the court set aside, that led to the present appeal, had the facts not been suppressed the lower court would have arrived at a different decision.

— C.N. Uwa, JCA. FRN v Ozekhome (2021) – CA/L/174/19

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MOTION EX PARTE FOR SUBSTITUTED SERVICE

A motion ex parte is the legitimate process to employ to seek for a Court’s order of substituted service.

– E.A. Agim, J.S.C. Odey v. Alaga (2021) – SC.9/2021

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