On interim and interlocutory applications

UNDER the various Rules of Courts in Nigeria, and of course under the case laws, litigants are permitted to bring relevant as well as necessary applications before the courts. This could be done before, during and after the substantive suit. These applications are designed to remedy certain defects in the substantive suit. Some applications are aimed at seeking some temporary reliefs in addition to the main claims as may be contained in the judgment of the court. Some applications have the effect of nipping the substantive action in the bud.

Generally, the court is bound to decide every application before it, one way or the other before the substantive matter is finally decided, as the ruling or the outcome of such applications may assist in doing justice in a matter before the Honorable Court as seen in Nalsa&Team Associate Ltd-V-Nnpc (1991) 11 Scnj 51, Kotoye-V-Cbn. More importantly, the applications are usually required by the Rules of various courts to be in writing, always by way of motion, except there is an enabling law or rule of procedure to the contrary. For instance, the Area and District Court Rules allow some oral applications being made in some interim and interlocutory reliefs being sought before the court as seen in Coker –V-Coker (1956)1FSC16, Order 15, Rule1 of the District Court Rules cap.495, LFN Abuja,1990. It therefore implies that oral motions or applications may, in certain instances be made to court in the presence of the other litigants; but the court may refuse to entertain such oral applications or motion and consequently ordered the application to be made in writing and be duly served on the other party.

Now, every written application before the court may be either ex-parte or motion on-notice. The former simply means “on one side only”, “by or for one party”, “done for, or on behalf, or on the application of one party only.” A judicial proceeding order, injunction, etc, is said to be ex-parte where it is granted at the instance and for the benefits of one party only without having to give notice to or contest by any person adversely interested or affected. Note has to be taken that the presence in court of a person to be adversely affected by the grant of an ex-parte application or order during the hearing of such an application does not have any effect as he has no right of audience in the circumstance or respect thereto.

A motion on notice, on the other hand, is an application in which the motion paper and all other processes attached are served on all necessary parties. Where a party is represented by a counsel, service of court processes on the counsel is deemed good. Under the Lagos State High Court Civil Procedure Rules, motion on notice shall be accompanied by an affidavit stating facts upon which the application is brought before the court, and a Written Address. Where the other party intends to oppose the motion, he or she shall file a Counter Affidavit and a Written Address within seven days of the service of the motion on him or her. It must not be forgotten that the applicants under the Rules of Court cited above, Applicant must serve the respondent within five days of filing the Application or Motion at the registry of the High Court. Where the Respondent had filed his or her Counter Affidavit and a Written Address within seven days, as stipulated by the Rules of Court above and served on the Applicants; the Applicant, where necessary, may within five days, file a Reply on Points of LAW as well as a Further Affidavit.

Again, reliefs sought by motion may be interim and interlocutory reliefs, or orders and/or injunctions. Interim injunction is sought where the other party, if unrestrained, might cause irreparableor immeasurable damage by continuing the conduct which led to the dispute at hand. Interim injunctions may become permanent, if the applicant is successful at trial. Generally, when exercising its discretion in issuing an order of Injunction, the Court will need to satisfy itself that there is a good reason why the respondent’s Rights should be restricted before the Court determines whether the Applicant would succeed at trial or not.

For injunction hearing, the applicant must show or establish that he or she has a good arguable case; as the court will not pre-judge the litigation before it generally, but the court must be persuaded and convinced that there is a serious question of law to be considered, where this is established, the court has the discretion to grant the Injunction or Order. The purpose of Interim Injunction is to preserve the RES(the subject matter of the substantive suit) maintain status quo ante, pending the determination of the substantive suit itself before the Court.

Indeed, an applicant praying the court for an order of interim injunction, pursuant to an ex-parte motion especially, must fulfill the under listed conditions in his or her supporting affidavit:  the applicant must establish that he or she has a legal right to be protected by law; and the situation is one of emergency or urgency deserving a quick or immediate intervention of the Court; failure of which may lead to irreparable damage or injury to the res (subject matter of the substantive suit). Then, the applicant is expected to establish a prima- facie case, although not as he would be expected to do during trial.

The applicant must make an undertaking as to damages, for instance, as to indemnifying or compensating the respondent(s) for any damage or injury he may sustain as a result of the Interim Order, if the substantive suit prove Vexatious and frivolous; and consequently fails. It must be noted that Applicant in the time past, could satisfy this requirements by mere deposition in the accompanying Affidavit, but with new development nowadays, Applicant must go further to satisfy the Court on the means or resources by which he or she would offset the undertaking regarding damage or injury suffered by the Respondents, at the end of the day should the substantive suit pan out to be vexatious or frivolous. Finally, applicants must satisfy the court that the balance of convenience is on his side. It must be noted that “Balance of Convenience” is said to be on the side of a party in Law where a party suffers injury or damage, if his or her application is refused by the court.

• Oluwanisomo, a legal practitioner, is based in Ado-Ekiti, Ekiti State.