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22 Jan

WEEK 7 INTERLOCUTORY APPLICATIONS

FOR THE LOVE OF CHRIST JESUS; THE BEGINNING AND THE END.

WEEK 7

INTERLOCUTORY APPLICATIONS

:: WHAT ARE INTERLOCUTORY APPLICATIONS: are applications made to court or judge in chambers in the course of pending proceedings due to certain occurrences occasioning it.

:: PRINCIPLES:

Made by interlocutory motion.

Judge shall make an order exactly as prayed, less than prayed, or strike it out[1].

Judge should also not determine or pronounce upon the substantive matter during interlocutory ruling.

:: SCOPE AND EXAMPLES OF INTERLOCUTORY APPLICATIONS

They include:

  1. Interpleader: where an applicant in possession of property or money claimed by two or more persons applies to court by way of summons[2] to compel contending claimants to interplead so court can determine who is entitled to the item/property/money. Order 26 Abuja, 43 Lagos. The applicant must (by supporting affidavit) show he has no interest in the property and did not collude with any of the claimants, and shall on demand hand over the subject matter to the court or dispose of it as the court directs.

Two types: Sheriff Interpleader[3] and Stakeholder Interpleader.

  1. INJUNCTIONS: generally described as a discretionary and equitable order of the court commanding or restraining the respondent from doing an act. Discretion should be exercised judiciously. Or 31 R 1 Abuja allows you to pray for injunction.

The principles for grant were noted in Amarican Cynamid Co V Ethicon Ltd (1975) 1 All ER 504, Obeya Memorial Hospital V AG Federation and Anor (1987) 7 SC (Pt. 1). Real urgency (for interim injunction), -Legal Right capable of being protected; – substantial issue to be tired; – conduct of the parties; – Undertaking as to damages; – Balance of convenience weighs in favour of the applicant who would suffer irreparable damage which damages cannot compensate if order is not granted; – other equitable considerations.

Injunctions May include:

An interim injunction granted ex parte for urgency preserves the res/ status quo until a named date or until an application on notice can be heard-Kotoye V CBN. Affidavit should disclose the urgency. Or 7 Abuja.

An interlocutory injunction granted on notice (after parties have been heard) and mandates parties to maintain status quo pending the determination of the case.

Mareva Injunction[4]: to freeze defendant’s property and prevent him from disposing or moving his assets out of a court’s jurisdiction pending determination of the suit so as not to frustrate a judgment debt Mareva Compania Naveira V International Bulk Carriers Ltd. (1975) Llyod’s Rep 509. Akingbola V EFCC. Operates in rem.

Anton Piller Injunction: (useful in trademark, copyright and patent) sought in camera ex parte at the Federal High Court permits the applicant (who should be accompanied by at least ASP) to enter (at a reasonable time) and discover/seize from respondent’s premises evidence vital to the success of an action Anton Piller K.G V Manufacturing Processes Ltd (1976) 1 All ER 779, Section 25 Copyright Act Cap C 28 LFN 2004. Or 31 r 2 Abuja.

:: MOTION; Or 7 Abuja, 39 Lagos

MEANING: is an application (usually in writing) made to the court for the grant of a relief prayed for.

PRINCIPLES:

– Motions must be supported by an affidavit setting out the facts on which the applicant intends to rely.

– Motions are heard in order of filing but Motions seeking to regularise an irregularity should be heard before motions seeking to terminate proceedings for irregularity.

– Motions are heard by affidavit and documentary evidence. Where there are conflicts in material facts averred in the affidavit and no documentary evidence can resolve, the court may take oral evidence to resolve-Falobi V Falobi (1976) 1 NMLR 169. 116 EA

TYPES;

Motion Ex Parte: the other party is not put on notice. Usually granted in cases of real urgency and where the adverse party’s interest will not be affected[5]. Usually mandatory in getting certain prerogative orders like mandamus, certiorari, habeas corpus. An ex parte order abates after 7 days (Lagos) or 14 days (Abuja)-Or 7 Abuja. Renewable for same time. See generally, Kotoye V CBN, 7-Up Bottling Company V Abiola and Sons Ltd

– Motion on notice: Is the default motion. Notifies the other party of the application before the court. Ojukwu V Ojukwu.

CONTENT: -should be in prescribed form; – contain heading of the court in which it is brought; – suit number, -parties and their designation; -state whether exparte or on notice; –may state the law or rule under which it is brough-Or 39 Lagos. Uchendu V Ogboni (1999) 4 SCNJ 64 at 76; – The prayers or reliefs sought; -date and signature of the applicant/consel; respondent’s address for service.

Move a Motion:

Example “My lord, before your lordship is a motion on notice/exparte dated… filed… brought pursuant to… praying for…supported by… (if it is supported by written address, you add: “my lord, we adopt the written address filed along with this application as our oral argument” my lord, the applicant has satisfied the conditions required (like)… We urge your lordship to grant this application”… we are most grateful for your lordship’s kind consideration.

Where Respondent seeks to Challenge/oppose, he should reply. Example: “My Lord, we have filed a counter affidavit with accompanying affidavits opposing this application… we also filed written addresses and adopt same… then state your argument with authorities”.

The court must then hear the application and pronounce thereon in writing.

 

:: ETHICAL ISSUES INVOLVED (ABUSE OF EX-PARTE INJUNCTIONS, SWEARING AFFIDAVITS BY COUNSEL, SUPPRESSION OF FACTS IN EX-PARTE APPLICATIONS. READ NJC JUDGE’S RULE ON EX PARTE APPLICATIONS AND MAKE A LIST OF DECIDED CASES WHERE ABUSE OF EX PARTE APPLICATIONS WAS DISMISSED.

 

More from isochukwu.wordpress.com

 

 

 

[1] He cannot make an order above the reliefs prayed Governor Gongola State V Tukur.

[2] Originating summons in Abuja. Where there is a pending case, it is by motion.

[3] Sheriff attaches property which is claimed by a third party who is not the judgment debtor.

[4] Exoarte supported by affidavit and written address.

[5] Usually where it would not be prudent to put the other party on notice.

Isochukwu

Quite eccentric really

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