Outcomes

At the end of this lesson students would be able to:

1. Explain the meaning of interlocutory applications and list examples;
2. Explain and discuss the principles and scope of the following examples of interlocutory applications and reliefs: Interim and interlocutory injunctions, Mareva Injunction, Anton Piller order and interpleader summons
3. Explain the meaning of and list the contents of a motion;
4. Discuss the principles regarding affidavit evidence
5. Draft and argue simple motions (affidavits in support inclusive).
6. Explain the types and circumstances under which Interpleader Summons action may be instituted
7. Explain and discuss ethical and constitutional issues involved in making interlocutory applications for example, abuse of ex-parte injunctions, swearing of affidavits by counsel, suppression of facts in ex parte applications, late filing of counter affidavits to motions in order to frustrate applicants as well as effecting service of Anton Piller orders.

 

Interlocutory applications are any applications made during the pendency of a court action see Order 7 rule 1FCT. Any application subsequent to the commencement of an action can be an interlocutory application.

 

There are two types of motions: motion ex-parte, and motion on notice.

 As a general rule there must be an action pending in court before an interlocutory application can be made.

What are the differences between an interlocutory application and an originating process?  1) Originating process are used to institute specific types of action, while an interlocutory application are used to take further steps during the pendency of the trial. Originating processes are served personally, while interlocutory applications can be served on the Legal Practitioner.

Sometimes they can be served together Order 39(8) Lagos

 

Function of Interlocutory Applications

1. They are the means of taking procedural steps prescribed in the rules preparatory to trial (rules of court)
2. To obtain leave to comply with the stipulations/requirements of the rules.

 

Examples of Interlocutory Applications

• Leave to issues originating process out of jurisdiction
• Appoint guardian ad litem – when someone is not competent in law e.g an infant, a guardian ad litem would be needed
• Substituted service of the originating process
• Judgement in default of appearance/defence
• Amendment
• Interim/interlocutory injunction
• Interim relief pending appeal, e.g. stay of execution.

Types of Interlocutory Applications

Generally applications are by

• Motions - the general forms of application in court actions. But note the existence and functions of:
• Summons
• Notice of preliminary objections

Order 39 rule 1 Lagos,order 7 rule 1 Abuja

 

MOTION

Generally, it is a written application made by an applicant notifying the respondent of the prayer sought by the applicant as well as the date and time of the hearing thereof

 

Contents of a motion:

• The court heading
• The heading or title of the application including the law or rule of court enabling the application. See order 39(1)(1) Lagos. But note the case law in FALOBI V FALOBI that once there exists a law or rule of procedure that permits a relief sought, it is immaterial that the rule is not or even wrongly referred to on the motion paper.
• The notification of the time and date the application shall be heard/moved. “Take notice that this Honourable Court will be moved on the day _____of ______ 2018 at the hour of 9 o’ clock in the forenoon or soon thereafter as counsel on behalf of the claimant/applicant shall be heard praying this Honourable Court for:”
• The relief or order sought
• The date – it should run across the foot of the application
• The name, description and address of the counsel who brought the application. Note that if the person is based outside the jurisdiction, apart from their normal address they must still state an address within the jurisdiction of the court where service can be made.
• The address for service of the opposite party

 

Note: In exam if they ask you to draft an application without any qualification, you must draft the motion paper itself, the affidavit and the written address and mention their titles.

 

MOTION

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO:

BETWEEN

EDWARD OSIKE…………………………………….CLAIMANT/APPLICANT

AND

SUPREME UNUKEGWO…………………….……...DEFENDANT/RESPONDENT

 

MOTION ON NOTICE

BROUGHT PURSUANT TO ORDER 39 RULE 1 OF THE HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE RULES) 2012 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT

Take notice that this Honourable Court will be moved on the 7^th day of June 2016 at the hour of 9’oclock in the forenoon or soon thereafter as counsel on behalf of the claimant/applicant shall be heard praying this Honourable Court for:

• An order of injunction/ interim order of injunction to seek leave of court to bring this motion
• ,…..
• AND FOR SUCH FURTHER ORDER OR ORDERS as this court may deem fit to make in the circumstances

 

DATED THIS …………………DAY OF …………………2016

 

Tinuade Oyewole

Counsel to the Claimant

Oyewole & Co Solicitors

33 Lekki Road, Ikoyi, Lagos

This email address is being protected from spambots. You need JavaScript enabled to view it.

08142563789

FOR SERVICE ON:

Okonkwookon

Counsel to the Defendant

2, Ikoyi Drive Lagos.

 

In Abuja it’s usually brought pursuant to order 7 and which ever rule, then in Lagos its brought pursuant to order 39 rule 1. You can’t go wrong citing this two

 

MOTION EXPARTE

1. This is a one side application, which involves only the applicant. Even where the other/opposite side is present in court, such can only be seen but cannot be heard. Order 7 rule 9 FCT – ABIOLA ANDSONS V SEVEN UP LTD;

GANI FAWEHINMI V AKILU

2. It is constitutional – no legal rights are determined – ABIOLA AND SONS V SEVEN UP LTD

 

When can a motion be brought Ex-parte - see LEEDO V. BANK OF THE NORTH

1. Where the issue involves only the interest of the applicant, at the stage of the proceedings – e.g. motion for substituted service/ motion for leave to act in a representative capacity
2. Generally used in situation of real urgency: e.g. interim injunction – KOTOYE V CBN (1989) 1 NSCC 338 – where time is of essence: to prevent irreparable damage or serious mischief
3. And where the law or rules permit its use: e.g. application for joinder under the third party proceedings- order 13 rule 19(1) and (2) Lagos / application for leave to make an application for judicial review – order 40 rule 3 (1) & (2) Lagos

 

The court has the discretion to

• Grant or refuse such ex-parte prayer, or
• Grant an order to show cause; or
• Direct that the motion be made on notice - order 7 rule 10 Abuja
• No motion or application for a rule nisi or order to show cause shall be made in any action Order 39(2) Lagos, or

Features of Ex-parte

• Under order 39, rule 3(3) Lagos; an injunction made ex-parte abates or expires after 7 days. This period could however be extended, in the interest of justice, or to prevent an irreparable or serious mischief - order 39 r3(4) Lagos
• In the FCT, an order made on motion ex-parte lasts for either 14 days after the party affected has applied for variation / discharge order 7 rule 12 FCT
• Under the FCT, Abuja rule, an application for a variation/discharge of an order made ex-parte is by a motion on notice, made within 7 days after the service of the said order or within such further time as the court may allow - order 7 rule 11 FCT
• There is the duty imposed on an applicant not to misrepresent or distort facts in an ex-parte application

 

Motion on notice

This is the commonest form of Interlocutory Applications. It guarantees hearing inter parties. General rule is all motions should be on notice order 39, rule 3 (1) Lagos.

This is because:

1. No surprises. Applicant is bound by the terms/prayers stated in the motion. Comm of works, BENUE V DEVCON
2. Fair hearing – s36 constitution

Failure to hear the opposite side is fatal to any order made – s 36 Const.

UKEY V SKENCONSULT LTD

 

Service of Interlocutory Applications

• In Lagos: a motion must be served within 5 days of filing, otherwise the application may be struck out order 39 rule 1 Lagos

See order 39, rule1 (1)-(5) Lagos on the procedure /order of service of address/counter affidavit.

• The motion is filed and served with
  1. The Motion paper
  2. An affidavit in support of application

• A written address in support: O.39 R.1(2) Lagos; O.7. R23 (FCT, ABJ)

• There must be at least 2 clear days between the service and the time fixed for the hearing of a motion – o 7, rule 18 FCT/ Or 39 R 5 Lagos
• Personal service is not required – o7 r 20 FCT. Service is most often made on counsel representing a party
• Adjournments- the judge may from time to time adjourn the hearing of an application or motion upon such terms as he may deem fit, provided however that a party cannot make an application for adjournment more than twice -order 39, r 7 Lagos

 

Evidence at the hearing of a motion

General rule: affidavit evidence is relied on

Order 7(3) FCT , see also 55 Evidence Act

A motion requires affidavit except where (a) the matter under consideration is a matter of law, and no issue of fact or mixed law and fact is raised or (b) where the facts are already before the court in any process or document already filed in court. AGHAHAMOVO V. EDUYEGBE .

Affidavit should not contain extraneous matters, it should only contain facts as known to the person, it shouldn’t contain law.

They rely on the affidavit and not oral evidence, so that the hearing can be fast.

It should be sworn before the Commissioner for oaths.

Preliminary objections cannot be an affidavit because it is based on issues of law alone.

 

ORDER OF HEARING OF COMPETING MOTIONS

Where two motions / application are due for hearing, preference is given to the application that will breathe life into the action rather than the application that will terminate the action. NALSA TEAM V NNPC(1991) 11 SCNJ 51, ABIEGBE V UGBODUME 1973 1 SC 133–where there are two competing applications , the one that will help keep the case alive is to be taken first.

 

AFFIDAVIT

A statement made on oath by the deponent from his personal knowledge, or belief or from information he believes to be true. JOSIEN HOLDINGS V LORNAMEAD HOLDINGS 1995 1 SCNJ 133.

Section 115 evidence Act.

The affidavit in support of the application must disclose the grounds relied upon by the applicant for the application. Order 7(3) FCT

 

Every affidavit must be set out in paragraphs and numbered consecutively. You don’t bring in legal arguments you only mention facts. Also your affidavit must have a title, - “ affidavit in support of motion on notice/motion ex-parte”

NOTE: its suit no, not motion no- motion no is wrong.

See s 117 EA for form of affidavit– Full name, sex, nationality, profession, and residence.

 

AFFIDAVIT

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICAL DIVISON

HOLDEN AT LAGOS

SUIT NO

BETWEEN

EDWARD OSIKE…………………………………..CLAIMANT/APPLICANT

AND

SUPREME UNUKEGWO…………………………..DEFENDANT/RESPONDENT

 

AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE

I Edward Osike, maleEngineer of No 15 Ikoyi Drive, Lagos Island, Lagos, Nigerian citizen hereby make an oath and state as follows:

1. nv
2. glf
3. dd
4. ss
5. That I depose to this affidavit ingood faith and conscientiously believing same to be true and in accordance with the provisions of the Oath Law of Lagos State.

____________________

DEPONENT

 

SWORN TO at the Lagos state high court registry

On this…………..day of …………..2018

 

BEFORE ME

_________________________________

COMMISSIONER FOR OATHS

 

 

An affidavit shouldnot contain extraneous matters, such as:

1. Objection,
2. Prayer
3. Legal argument
4. Conclusion

S115EA; BAMAIYI V STATE; SHIVERO V STATE

 

Resolution of irreconcilable conflict in affidavit evidence

• The general rule is that conflict in affidavit evidence of opposing parties are resolved by oral evidence. S 116 Evidence Act;
• FALOBI V FALOBI; UKU OKUMAGBA; EBOH V OKI
• This is regardless of the desire of the parties.
• However where there is documentary evidence in support of an affidavit then reliance will be placed on such. – NWOSU V IMESA – so the one that has documentary evidence in support would carry more weight than the one, which doesn’t.

Other exceptions

1. Judicial notice
2. Where matter can be resolved by law
3. Where the affidavit is manifestly untrue

 

It must show on the paper that there is annexed the document that is in issue

Reference in affidavit to exhibits

1. Where an exhibit is attached, it must beindicated in a paragraph of the affidavit

“5. On the 1^st January, 2018, the plaintiff/ applicant wrote a letter to the defendant/respondent, demanding for the payment of the outstanding debt.

 Attached hereto and marked “EXHIBIT A1” is a copy of the said letter of demand”

 

There should be a separate affidavit of urgency supporting the application for motion ex-parte in interim injunction. So it would be two affidavits.  The affidavit of urgency is quite short and would mention 2 things. So the affidavit discloses the urgency of the application. In bar part 2 just draft an affidavit in support because there will be no time.

 

Both interim and interlocutory injunctions are equitable remedies and as such they are granted at the discretion of the court. The maxim “He that comes to equity must come with clean hands” comes into play. 

 

Interim injunction

An Interim injunction is one granted to preserve the status quo until a named date or until further order or until an application on notice can be heard – KOTOYE V CBN. It is granted in situations of extreme urgency and normally on ex parte application. The affidavit in support must disclose the urgency – O 7 r.8 Abuja. It is usually an order granted to maintain the status quo ante till when the respondent can be heard and for a shorter duration. When the respondent has been heard, the court may discharge the interim order of injunction or if the application is meritorious, it may grant an interlocutory injunction, which maintains the status quo ante pending the determination of the substantive suit.  Thus an application for interim injunction should be succeeded by a motion on notice asking for an interlocutory injunction.

It may be granted for instance:

1. Where serious mischief or irreparable damage would be caused to the party applying if there is a delay in granting the order – Order 7 R.8
2. Where the motion for interlocutory injunction is taking time to be heard

 

Interlocutory injunction 

The prayer is always to prevent the respondent from carrying out a particular act pending the determination of the suit. It is the order that would bind the parties throughout the duration of the case till the judgment of the case is given. Any application for interlocutory injunction is made by motion on notice.

KOTOYE V CBN; s36 CONST

Order 38 rule 2 Lagos; Or 31 Abj

 

Conditions for the grant of injunction

The principles guiding the grant or refusal of an injunction are the same in interim and interlocutory injunction except that for an interim injunction there is requirement of a situation of real urgency.

• Existence of a legal right: The rule is that the court will grant an injunction to support a legal right. Applicant must show that he has legal right that is recognizable in law that ought to be protected from invasion.Ojukwu v Gov. Lagos State.
• Substantial issue to be tried – applicant should show that the substantive claim/suit is not frivolous - OBEYA MEMORIAL HOSPITAL V AGF. The court may satisfy itself from the affidavit and the counter-affidavit that there is a triable issue at trial. The court is not meant to determine the issues for trial at this stage. The existence of a triable issue is sufficient for a grant of an injunction and not the strength of the case.
• Balance of convenience:the court will look at who will suffer greater harm or hardship if the application is refused or granted i.e. if the applicant will suffer greater harm on the refusal of the application, than the respondent would suffer on its grant, the injunction would be granted, if the reverse is the case, the application would be refused.

In determining the balance of convenience, the court should also consider the issue of whether damages can be adequate compensation. If damages would adequately compensate the hardship, the balance of convenience, will not be said to lie on the side of such a person. So, the question is “ on whose side lies the balance of convenience?” - ORJI V ZARIA INDUSTRIES LTD

• Irreparabledamage or injury:the applicant must show that he will suffer irreparable damage or loss not capable of being compensated by damages.
• Conduct of the parties: injunction is an equitable remedy. He that comes to equity must do so with clean hands. The court would look at the conduct o the parties before and at the time of the application.
• Existence of alternative remedies – if damages can compensate, an order may not be granted
• Undertaking as to damages: The applicant must give undertaking to pay damages to the respondent should it be proved that he was not entitled to the injunction at the end of the case.

See OBEYA MEMORIAL HOSPITAL V AGF

 

INTERPLEADER SUMMONS

This is an interlocutory application made to court by a person under liability for a debt, money, goods or chattels and who is in a dilemma on which of the two or more adverse claims by diverse claimants that he should discharge his obligation on the subject matter to.

 

Special requirements that should be contained in the affidavit in support of an interpleader

Order 43, rule 2 (2) Lagos

The applicant must satisfy the court by deposing to the following facts:

1. That he claims no interest in the subject matter in dispute, except for charges or costs
2. That he does not collude with any of the claimants and
3. Is willing to pay or transfer the subject matter into court or to dispose of it as the judge may direct.

 

MAREVA INJUNCTION

This is a type of injunction that may be granted in favour of the plaintiff or claimant/applicant against a defendant who is normally not within jurisdiction, and who has evinced the intention to remove his assets from within the jurisdiction, in order to frustrate any judgment or order that may be made against him.

MAREVA COMPANIA NAVEIRA S.A V INT BULK CARRIER LTD 1975 LLYOD’S RE 509 PORT CA

Mode of application: motion ex-parte with an affidavit supported by written address. Full disclosure of all material facts relevant to the application should be made.

 

Consideration for grant

• Likelihood of the applicant obtaining judgement against the defendant for a certain sum of money;
• The defendant/respondent must have assets within the jurisdiction of the courts, enough to wholly or partially satisfy the anticipated judgement
• Intention/plans of the defendant to make such assets unavailable or untraceable at the time of such judgment

1. BENKAY NIG LTD V CADBURY NIG PLC (SUPRA),

SOTIMINU V OCEAN STEAMSHIP – the case sets out the three conditions.

 

 

ANTON PILLER ORDER

An order to permit the applicant to enter the respondent’s premises to search and retrieve materials in possession of the respondent used to commit infringement of the applicant’s right.

This is an injunction normally made ex parte and in camera (to ensure that the respondents has no knowledge of it) permitting the applicant to enter into the premises of the respondent to search and seize, detain and preserve goods, documents or articles in possession of the respondent. This is normally granted in cases of infringement of copy right, trademark or patent.  

Mode of application – ex parte application, in camera

S25 Copy rights act 2004

Prayer: An order granting leave to the applicant to proceed to no 1 Nigerian law school avenue Lagos in company of police men and to seize and detain the ……….(mention the property)

 

Conditions applicant has to meet

1. Prima facie legal right to the order sought
2. Serious potential / actual damage
3. The fact of incriminating material in possession of the adverse party
4. The real possibility of damage or removal been caused to the material, unless the order is granted

 

Additional note

The back page of every exhibit should identify the exhibit with the relevant paragraph in the affidavit order 8 rule 10 FCT “ this is the document referred to as exhibit x in paragraph y of the affidavit of Mr James Okoro deposed to at the high court registry, Ikeja on ………day of……….

BEFORE ME

…………………………..

COMMISSIONER FOR OATHS

 

Nwosu v IMESA(Imo state environmental sanitation authority ) – if the two affidavits have conflicting statements that cannot be reconciled, and one there is documentary evidence in support of the affidavit, reliance would be placed on such documentary evidence.

 

Jurat is placed to the left hand side at the foot of the affidavit

 

Draft for illiterate

Sworn to at the high court registry Ikeja, this ….…. Day of ……..after the contents have been interpreted to the deponent in ….. languageby ……. (sworn interpreter) and the deponent thereafter made his thumbprint impression after he has understood the contents.

Before me

……………………………..

COMMISSONER FOR OATHS

 

Draft for blind person

Sworn to at the high court registry Ikeja, this …. Day of …..after the contents have been read out to the deponent by ……. and the deponent thereafter made his thumbprint impression after he has understood the contents.

Before me

……………………………..

COMMISSONER FOR OATHS

 

Interim injunction prayer – learn it, pending the determination of the motion on notice

 

Interlocutory injunction prayer - An order restraining …..from entering into the property pending the determination of the substantive suit