INTERLOCUTORY

APPLICATIONS

043 Lagos, O 43Abuja

• Interlocutory applications are
applications made to the court while
an action is pending.
• It is “interlocutory” because it is tied
to a suit.
• It can be made during or after trial.
• It is “interlocutory” because it results
in an order other than a final decision
in a suit.
• The parties in an interlocutory
application are the “APPLICANT”
and “RESPONDENT”
 USES OF INTERLOCUTORY
APPLICATIONS
It can be used to remedy some defects in a
pending suit.
In some instances, it is condition
precedent to the commencement of a
substantive action. As is the case of
application for leave to issue a writ
especially when it is to be served out of
jurisdiction or under exparte application
for judicial review.
It can be used to seek some temporary
reliefs or additional reliefs to the ones
contained in the claim of the party.
It is also an effective tool in stopping or
killing a substantive suit.
It is used to remedy delay when the
applicant has ran out of time in doing a
thing required by the rules.
The ultimate aim is to assist parties in the
orderly presentation of their cases and in
getting speedy judgment.
• It should be noted however, that some
lawyers use it negatively as a delay tactics.
See PROFESSOR STEVE UGBA V
GAGRIEL SUSWAM (2014) LPELR
22882 SC, OGBORU V UDUAGHAN
(2011) 17 NWLR (PT 1232)
MODE OF APPLICATION TO COURT

• An interlocutory application is required to be

made either in open court or to the Judge in
chamber:
Orally;
By motion. See O 43 R1 Abuja, O 43 R1
Lagos.
Summons (where the rules of court provides for
it) e.g. interpleader proceedings. See O 48 R 5
Abuja and O 47 R 2Lagos
 MOTION

• A motion is an application,
usually in writing made to
the court for an order in
terms of the prayers sought
in the application.
 TYPES OF MOTION
• MOTION EX PARTE
• MOTION ON NOTICE
 MOTION EXPRTE
• It is an application for an order of
court without the notice of the other
party to the suit. Even where the party
to be affected is in court he cannot
respond to same. See 7-UP
BOTTLING CO. V ABIOLA &
SONS LTD (1995)2 SCNJ37,
GOMBE V. PW NIG LTD (1995) 2
SCNJ 37.
Ex parte applications are normally
permitted in two circumstances:
Where time is of the essence
Where from the nature of the application,
the interest of the adverse party will not
be affected negatively. See LEEDS
PRESIDENTIAL MOTEL LTD V
BANK OF THE NORTH LTD (1998)7
SCJN 328
• NOTE: no application for an
injunction can be made ex parte
except the applicant files with it a
motion on notice. See O 43 R
3(1) Abuja and O 43 R 3(2)
Lagos
SOME APPLICATIONS THAT CAN BE
MADE BY MOTION EXPARTE
Application for leave to bring a suit in a
representative capacity
Application for substituted service
Application for interim injunction
Application to renew a writ
Application for garnishee order nisi
Anton pillar injunction
Mareva injunction etc.
ORDERS THE COURT MAY MAKE AFTER
HEARING EX PARTE APPLICATION

Grant the application

Refuse the application
Direct that the motion be served on the
other party
Order that the party sought to be affected
appear in court within a given time and
show cause why the order should not be
granted.
See O 43 R 7 Abuja, O 43 R 5 Lagos.
 LIFE SPAN OF EX PARTE ORDER
• Any order obtained ex parte is
expected to last for a short period.
• In Lagos and Abuja, it shall abate after
7 days see O 43 R 3(3)Lagos and O
43 3(2) Abuja.
• However, O 43 R3(4) Lagos and O 43
R 3 (3) Abuja gives the judge power
to extend the period where necessary,
but such extension shall not exceed 7
days.
 MOTION ON NOTICE
• A motion on notice is one which
is served on the other party and
asking him to appear in court on a
named date for the hearing of
same. Personal service of motion
is not required unlike originating
processes.
 SERVICE OF MOTION
• In Abuja, there shall be at least 2 clear
days between the date of service and
hearing except there is leave of court to
the contrary. O 43 R6 Abuja
• The respondent is expected to file counter
affidavit within 7 days. see O 43R 1(3)
• The Applicant has 7 days to file reply if
any. See O 43 R1(4) Abuja
• In Lagos every motion must be served
within 5 days of filing see O 43 R 1(2b)
Lagos.
• The respondent is expected to file counter
affidavit within 7 days. See O 43 R 1(3)
Lag
• The Applicant has 7 days to file reply if
any. See O 43 R1(4)
SOME APPLICATIONS THAT CAN BE
MADE BY MOTION ON NOTICE
• Application for joinder of parties
• Application for interlocutory injunction
• Application for amendment of pleadings
• Application for striking out of pleadings
• Application for stay of execution etc.
 ORDERS THE COURT MAY MAKE
AFTER HEARING A MOTION ON
NOTICE
Grant the order as prayed
Grant an order less than what was prayed
Make an order striking out or dismissing
the application
NOTE: the court cannot make an order
over and above what has been prayed or
sought for.
 CONTENTS OF A MOTION
• Heading of the court
• The suit number
• Parties(‘applicant’, ‘respondent’)
• Type of motion ( ex parte or on notice)
• The order/ rule or law under which the
application is brought. O 43 R1 Lag, O 43
R 1 Abuja, FALOBI V FALOBI (1979) 1
NMLR 169 UCHENDU V OGBONI
(1999) 4 SCNJ 64, MAJA V SAMOURIS
( 2002) 7 NWLR (PT 765) 78
• The notice itself.( TAKE NOTICE that….)
• The order or relief sought
• Date of the application
• Name, signature of counsel. It cannot be
signed by a law firm see the case of
OKAFOR V NWEKE (2007) ALL FWLR
(Pt. 368) 1016
• The address of applicant’s counsel
• The name and address for service on the
respondent or his counsel
 HEARING OF MOTION
• When the motion is moved.
• It is simply moving the application
either in court or in chambers
• Contentious applications are heard in
open court while non contentious
may be heard in chambers.
• In Abuja, motion ex parte may be deemed
moved and the written address adopted
without actually moving same See O 43
R4 Abuja
 HOW TO MOVE MOTION
• Identify the application
• State the rule or law under which the
application is brought
• State the prayers being sought on the motion
paper
• Draw the attention of the court to the affidavit
in support of the application including further
affidavit if any.
• Make references to any exhibit attached if any.
• Draw the court’s attention to the written
address and adopt same.
• Where the respondent has filed a counter
affidavit, respond to it.
• Urge the court to grant the application
• Where the respondent is opposing the
application by way of a counter affidavit he
will indicate and refer the court to his counter
affidavit, adopt his written address and urge
the court not to grant it.
• The court will deliver a bench ruling, stand
down for ruling or adjourned for ruling as the
case may be.
• Where the respondent has no objection and did
not file any counter he may indicate he has no
objection and he may ask for cost.
 LIMIT TO FILING OF
INTERLOCUTORY APPLICATION
• As a general rule there is no limit to the
number of application to be filed in a
particular suit.
• Where an application is meant to delay
proceedings or it is frivolous it will be struck
out.
• In Abuja, an application for amendment of
pleadings can be brought only twice during
trial and without limit during pre-trial
conference. See O 25 R1
• In Lagos, an application for amendment
of pleadings can be brought only twice
during trial and without limit during case
management conference. See O 26 R1
 OBLIGATION TO HEAR EVERY
MOTION
• Once an application has been filed except
it is withdrawn, the court is duty bound to
hear the application and make
pronouncement. See DANDUME LGC
V YARO (2011) 11 NWLR(PT1257)159
Where a motion for extension of time to
file defence was not heard and judgment
was delivered. It was set aside on appeal.
 ORDER OF HEARING MOTIONS

• The order of hearing a motion is at the discretion of

the court.
• It is usually taken in the order in which they are
filed.
• However, where there are two pending motions,
one seeking to destroy and the other seeking to save
the suit,( constructive or destructive motions) the
one seeking to save the suit will be heard first. See
AG FED V. AIC LTD (1995) 2 NWLR 378.
 AFFIDAVITS
• Every motion shall be supported by an affidavit.
See O 43 R 1 Abuja, O 43 R1(1) Lagos.
• Where the application is one brought on point of
law there is no need for an affidavit see
EREJUWA II V. DEDUWA (1970) MSNLR15
• It is a written statement of facts made by the
maker under oath.
• The maker is referred to as the deponent.
• Every affidavit must comply with the
provisions of section 115 of the Evidence Act.
• If the deponent deposed to the affidavit in a
language other than the language of the court,
( English language) the affidavit must be
translated to the language of the court and both
the English version and the other language
must be presented to court. It must also have a
jurat See GUNDIRI V NYAKO (2014)2
NWLR (PT 1391)211
 CONTENTS OF AFFIDAVITS
• Heading of court before which the
oath is sworn
• The suit number where it has been
given
• The names of parties
• The application which the affidavit
supports. E.g. affidavit in support of
motion on notice
• Name, nationality, religion profession and
address of deponent
• Where deponent is not a party, the person by
whose authority he deposes
• Where the facts are not within his
knowledge, the source of his knowledge or
information must be stated
• The oath’s clause.
• Signature and official stamp of commissioner
for oaths
 SOME PRINCIPLES RELATING TO
AFFIDAVIT
• A court may in civil proceedings order proof of
facts by affidavit evidence. See section 107 of
EA
• An affidavit must not contain any extraneous
matter.
• An affidavit shall not contain objection.
• An affidavit shall not contain prayers (reliefs).
• An affidavit shall not contain legal arguments.
See Section 115(2) Evidence Act.
• An affidavit shall not draw conclusions
whether of facts or law. Section 115(2)
Evidence Act.
• An affidavit shall contain statement of facts
only. Section 115(1) Evidence Act
• If the deponent is making the affidavit on the
ground of his belief derived from other sources
(not being his personal knowledge), he must
state the facts and circumstances forming the
ground of his belief. Section 115(3) Evidence
Act.
• If the deponent derived his information from
another person rather than his personal
knowledge, he shall state the name of his
informant and also furnish reasonable
particulars of the time, place and circumstance
of the information. Section 115(4) Evidence
Act.
• A deponent shall not swear to an affidavit
before himself. So if a person is a
commissioner for oaths or Notary public, he is
disqualified to attest to the affidavit that he is
a deponent. See section 112 Evidence Act
• A deponent shall not swear to an affidavit
before his legal practitioner.
• A deponent shall not swear to an affidavit
before a clerk of his legal practitioner.
• A deponent shall not swear to an affidavit
before his partner.
• A defective or erroneous affidavit may be
amended and re-sworn by leave of court, on
terms as the court may deem reasonable. See
section 114 Evidence Act.
 COUNTER AFFIDAVIT
• A party who intends to oppose an application
is required to file a counter affidavit in
opposition.
• Where a respondent fails to file a counter
affidavit the facts deposed to in the affidavit
are deemed true. See MATO V HEMBER
(2018) ALL FWLR (PT 925) 146 @ 190.
• An effective rebuttal in a counter affidavit
must be specific, clear and unambiguous.
• General denials in a counter affidavit will not
be sufficient rebuttal of facts alleged in the
affidavit of the adverse party. See OKEREKE
V EJIOFOR (1996) 3NWLR (PT 434) 90.
• Where the respondent intends to rely on points
of law alone, he needs not file a counter
affidavit. See BADEJO V. MINISTER OF
EDUCATION (1996) 9-10 SCNJ 51
 FURTHER AFFIDAVIT

• If the applicant, upon being

served with the counter affidavit,
sees the need to oppose the facts
deposed to in the counter
affidavit, he is expected to file a
further affidavit it.
 CONFLICTS IN AFFIDAVITS
• Where there is a conflict in
affidavits of parties the court has
a duty to resolve the differences
by calling oral evidence. See
FALOBI V. FALOBI Supra and
section 116 Evidence Act.
 PROPRIETY OF COUNSEL
DEPOSING TO AN AFFIDAVIT
• Counsel must avoid the habit of
deposing to an affidavit on behalf of
client. In the event of conflicts he will
be required to enter the witness box
and be subjected to the rigours of cross
examination. See OKPABIO V.
NIGERIAN FILMS & CENSORS
BOARD (2008) 9 NWLR (PT 1092)
219
 WRITTEN ADDRESS
• Under the Abuja and Lagos rules,
interlocutory applications are to be
accompanied by written address. See O43
R 1(2) Abuja and O 43 R1(20 Lagos.
 CONTENTS OF A WRITTEN
ADDRESS
• See O 33 R 2& 3 Abuja and O 35 R 2 & 3(1)
& (2) Lagos
• The claim upon which the application is based
• Brief statement of facts with references to
exhibit(s) attached
• Issues for determination
• Legal arguments incorporating the authorities
cited
• Conclusion containing numbered summary of
points raised.
• List of cited authorities
• Certified true copies of unreported
decisions.
 SOME SPECIFIC INTERLOCUTORY
APPLICATIONS
• Application for injunction
• Application for anton piller
injunction
• Application for mareva injunction
• Interpleader proceedings
APPLICATION FOR INJUNCTION

• An injunction is a court order

commanding an action, preventing or
forbidding an action. See O 42 R 8
Lagos, O 42 R8 Abuja
• There are two types:
Interim injunction
Interlocutory injunction
 INTERIM INJUNCTION
• It is a temporary order of court granted to
preserve the res until a named date or hearing
of the motion on notice
• It is granted in urgent situation
• It is normally ex parte
• It has a short life span
• It last pending the determination of motion on
notice.
• See KOTOYE V. CBN (1998) 1 NWLR (PT
98) 419, O 43 R1(2) Lag, O 43 R1(2) Abuja
 INTERLOCUTORY INJUNCTION

• It is granted after both parties have been

heard.
• It is to last during the pendency of the suit.
• It is through motion on notice. See
KOTOYE V CBN Supra
• It is not granted in respect of a completed
act. See OKAFOR V AG ANAMBRA
(1992) 2SCNJ 219
 CONDITIONS FOR GRANT OF
INTERLOCUTORY INJUNCTION
• Existence of legal or equitable right
• Existence of substantial issue to be tried
• Balance of convenience
• Irreparable damage or injury
• Conduct of the parties( i.e. behaviors of the
parties before and during the time of the
application)
• Undertaking as to damages
See OBEYA MEMORIAL HOSPITAL V AG
FEDERATION ( 1987) 7SCNJ 42
 MANDATORY INJUCTION
• It is an order compelling a party to do an
act in some cases ( e.g. to forestall
executive lawlessness).
• It is to compel a Respondent to retrace his
steps and to restore the parties to the
status quo ante bellum. See SULU
GAMBARI V BUKOLA (2004)
1NWLR (PT853)122 @ 140-141
ANTON PILLER INJUNCTION
• It is an ex parte order permitting the
applicant to enter into the respondent
premises to seize, detain and preserve
goods or articles in possession of the
respondent
• It is granted in case of infringement of
copy right, trademark, patent
• See ANTON PILLER K,G V.
MANUFACTURING PROCESSES
LTD & ORS (1976) 1 ALL ER 779
PRINCIPLES GUIDING THE GRANT
OF ANTON PILLER INJUNCTION
• The guiding principles was laid in
FERDO LTD V UNIBRO STORES
( 1980) Fleet Street Report 489 as
follows:
The Applicant must show that there is an
infringement against his trade marks, copy
right, patent right or designs.
The Applicant must show that the
infringing property is in the possession of
The Applicant must show that if an
application is made on notice , the
Respondent is likely to destroy or hide
the property away.
The Applicant must further show that his
case would be seriously frustrated if the
court refuses to make the order for Anton
piller injunction against the Respondent.
 MAREVA INJUNCTION
• This is an order restraining a
defendant from removing his assets
within jurisdiction so as to render a
judgment nugatory.
• See MAREVA COMPANIA
NAVIERA V INTERNATIONAL
BULK CARRIER LTD (1975)
Lyod’s Rep. 509
 GUIDING PRINCIPLES FOR THE
GRANT OF MAREVA INJUNCTION
• The guiding principles are laid in SOTIMINU
V OCEAN STEAMSHIP NIG LTD ( 1992) 5
SCNJ 1 as follows:
 That he has a cause of action which is justifiable
 That there is real and imminent risk of the
Defendant removing his assets from jurisdiction
and thereby rendering nugatory any judgment
which the plaintiff may obtain
 That the applicant has made a full disclosure of
all material facts relevant in the application
That he has given full particulars of the
Defendant’s assets within the jurisdiction
That the balance of convenience is on the
side of the applicant
That he is prepared to make undertakings
as to damages.
 INTERPLEADER
• People often find themselves in
possession of property or money
claimed by two or more persons. The
person in possession becomes
confused as to who is the right owner
• Delivery to one person may result to
a suit against him by the other
• To avoid this the party in possession
applies to court by way of
interpleader to compel the claimants
to interplead (take proceedings
between themselves to determine
who is entitled to the subject matter
 TYPES OF INTERPLEADER
• Sheriff interpleader. See section 34 of
the Sheriff & Civil process Act.
• Stakeholder interpleader. See O48 R
1 Abuja, O 47 R1 Lag ,
NWEKESON V ONUIGBO (1991)
3 NWLR (PT.178) 125
PROCEDURE FOR INTERPLEADER

By way of originating summons

Where a suit is pending it will be by
way of ordinary interlocutory
summons
• See O 47 R 2(1) and O 48 R 5
Abuja
 WHAT THE AFFIDAVIT FOR AN
INTERPLEADER SHOULD CONTAIN

• That the applicant has no interest in

the subject matter
• That the applicant has not colluded
with any of the claimants.
• That the applicant is wiling to
transfer or dispose of as the court
may direct
 SHERIFFS INTERPLEADER
• Where a sheriff carries out attachment
pursuant to a judgment and a third party
is laying claim to the property to be
attached.
• It is applicable when the goods or chattel
of a person who is not named in the writ
of fi fa is attached. See KEY STONE
BANK LTD V M &M LTD (2018) ALL
FWLR (PT 918) 143
• The third party and the judgment
creditor are called upon to
substantiate the claim.
• It operates as a stay pending the
determination of the matter. See
SHELLE V OSHUN 11 NLR 43
 TIME FOR BRINGING
INTERPLEADER
• No time frame but it must t be brought
before the sale of the property attached.
ETHICAL ISSUES AND ABUSE OF EX-
PARTE INJUNCTIONS
• The whole purpose is to ensure that the
subject matter is not irreversibly altered
before the motion on notice is heard.
• In recent past there had been cases of
abuse and misuse of ex-parte injunction.
• Ex-parte injunctions are being abused by
Judges and Lawyers.
• Examples of such abuse are;
Where a court in one state refused to
grant ex-parte injunction and the applicant
rushed to another state and filed a similar
suit with an ex-parte application for
injunction without disclosing the previous
application to the court. NATIONAL
BANK OF NIG LTD V YINKA
COMM. ENT. LTD see Interlocutory
Applications by Afe Babalola page 38
A court granted ex-parte order of interim
injunction in favor of a Claimant. The
defendant served. Counsel for the
defendant went ahead to file a similar suit
and obtained an ex-parte order of
injunction against the claimant on the
same subject matter. PANAF
INVESTMENT LTD V TEMPLE &
GOLDERS LTD see Interlocutory
Applications by Afe Babalola page 38
A case where a Judge adjourned the
hearing of an ex-parte application for
interim injunction, for two weeks. After
hearing, ruling adjourned for another one
week. MORGAN AIRLINES LTD V
TRANSNET LTD & ORS see
Interlocutory Applications by Afe
Babalola page 40
Where a ruling for ex-parte application
for interim injunction was adjourned
sine die because the defendant who had
notice that the judge had adjourned for
ruling, filed a motion arresting the
ruling. MORGAN AIRLINE V
TRANSNET LTD.
• Hon Justice Mohammed
Bello, CJN as he then was
admonished Judges and
practitioners at the All
Nigerian Judges Conference
held in Abuja in 1985 in the
following words:
“the decision of some of our
courts on ex-parte injunction seem
to put individual interest over
national interest in Nigeria. Public
functionaries have been restrained
without given a hearing from
performing
their constitutional and statutory
duties at the instance of exuberant
individual. I had of occasion to point
out early this year that it was only in
Nigeria that a court of law would
restrain a university by order of an
ex-parte injunction from holding
convocation to award degrees to over
a thousand students, who had passed
their examinations.
A court of law denied the
deserving students their degrees
because two students who had
failed the examinations had
applied to the court for a
declaration that they too were
entitled to be awarded degrees….
Indeed, there is urgent need
among some of us, the Judges, to
appreciate that ex-parte injunction
which was devised as a vehicle for
the carriage of instant justice in
proper cases should not be
converted into bulldozer for
demolition of substantial
justice…”
 THE CODE OF CONDUCT FOR
JUDICIAL OFFICERS

• Rule 2(2) Code of Conduct for

Judicial Officers.
• A Judicial officer must avoid
the abuse of the power of
issuing interim injunctions, ex-
parte.
 ETHICAL ISSUES
• Rule 32 RPC 2007. A lawyer shall deal
candidly and fairly with the court.
• Rule 27 RPC 2007. A lawyer shall not
take undue advantage of opposing
lawyer.
• Swearing of affidavit by counsel-Rule
20 RPC 2007. see OKPABIO V.
NIGERIAN FILMS & CENSORS
BOARD supra
• Suppression of facts in ex-
parte application. Rule 32
RPC 2007
• Late filing of motions and
counter affidavits with a view
to delay proceedings. Rule
30(5) RPC 2007