By: Hameed Ajibola Jimoh Esq.
There have been occasions in the Nigerian legal system or court system to say where a court would make an order in an ex-parte way most especially by means of an interim/ex-parte injunction. After making this order, another court is invited by a litigant or his counsel in another court or on the same subject matter would make another order which in a way would conflict with the earlier order of court made. This most often happens in a political issue, with due respect, where some politicians desire to achieve their selfish intention by whatever means as money could achieve! Some lawyers are sponsored to abuse the process of court to the annoyance of the opposing party in the suit. This case of conflicting ex-parte orders of different courts in Nigeria, has made ridicule of the Nigerian judiciary one way or the other! Several thoughts and opinions have been made on finding a lasting solution but the issue keeps rising unabatedly. In fact, some judges have had to pay the high price of losing their judicial office or being queried and or suspended from judicial office due to the abuse of the process of the litigants and or their counsel! This paper aims at offering a lasting solution from the bar to save the face of the judiciary from this ugly incident, hence, this topic.
First and foremost, it is no doubt that this issue of conflicting ex-parte orders of courts have been in existence over a decade. At page 51 chapter three of Chief Afe Babalola’s Book on Injunctions and Enforcement of Orders stated as follows: “If there was an area of law which enacted perennial problem for lawyers and Judges, it was the practice and procedure for the grant of interim and interlocutory injunctions. This was due to a great deal of confusion and conflicting principles adopted by our Courts in deciding whether or not to grant interim or interlocutory injunction pending the determination of the substantive suit. It was the chaotic situation that made Dr. Justice G.B.A. Coker, J.S.C. in the case of Ladunni v. Kukoyi (1972) 1 All NLR 133 at 136 observe as follows: ‘The law with respect to interim injunction constitutes one of the most difficult sections of our law and the difficulty exists not because the law is recondite but because the ascertained principles of law must be subjected at all times to a rather amorphous combination of facts which are perpetually different in every case. Undoubtedly, a good deal of judicial discretion is called for and we would think that no one now imagines that such an order could or would be granted as a matter of course’ .”.
Furthermore, ‘interim injunction’ is defined as: “… a temporary form of injunction which remains in force until named day or date. It is generally contemplated that at the named date the applicant may approach the Court by motion on notice seeking a further order restraining the defendant until the final determination of the substantive case. In an urgent case, an interim order in the nature of an injunction may be granted when the other side has been served with the notice of motion but has not had an opportunity of answering affidavit.”. See the case of: OLOWU v. BUILDING STOCK LTD (2003) LPELR-7286(CA), Per MORONKEJI OMOTAYO ONALAJA, JCA (Pp 9 – 16 Paras E – A).
Furthermore, the unsettled and conflicting situation (i.e. whether or not to grant interim or interlocutory injunction pending the determination of the substantive suit) was well articulated by Nnaemeka-Agu, J.S.C. in Globe Fishing Industries v. Chief Folarin Coker (1990) 7 NWLR (Pt. 162) at 265 at 293 – 294 which reaffirmed and reconfirmed his previous analysis of the difference between ex parte interim injunction and interlocutory injunction in his judgment in NAB. Kotoye v. Central Bank of Nigeria & 7 Ors. (1989) 1 NWLR (Pt. 98) page 419 at 422 – 423 SC and that the main features of interim injunction are:-
“(a) It is made to preserve the status quo until a named date or until further order or until an application on notice for an interlocutory injunction is heard.
(b) It is for a situation of real urgency to preserve and protect the rights of the parties before it from destruction by either of the parties.
(c) Unlike an ex parte injunction, it can be made during the hearing of a motion on notice for interlocutory injunction when because of the length of the hearing, it is shown that an irretrievable mischief or damage may be occasioned before the completion of hearing.
(d) It can be made to avoid such an irretrievable mischief or damage when due to the pressure of business of the Court or through no fault of the applicant it is impossible to hear and determine the application on notice for interlocutory injunction.
(e) What the Court does in making an order of interim injunction is not to hear the application for interlocutory injunction ex parte, behind the back of the respondent, but to make an order which has the effect of preserving the status quo until the application for interlocutory injunction can be heard and determined.”
Therefore, the main attributes of an ‘ex parte injunction’ includes:-
(a) It can be made when there is a real urgency but not a self-induced or self-imposed urgency.
(b) It can be made in an interlocutory or interim injunction application until a certain day usually the next motion day by which time the other side should have been put on notice.
(c) It cannot be granted pending the determination of the substantive suit or action.
(d) It can be granted where the Court considers on a prima facie view that an otherwise irreparable damage may be done to the plaintiff before an application for an interlocutory or interim injunction can be heard after notice has been given to the opposing party.
(e) It can be granted where it is necessary to preserve the res which is in danger or imminent danger of being destroyed.
(f) A person who seeks an interim order ex parte while also applying for an interlocutory injunction, files two motions simultaneously, one ex parte asking for the interim order and the other on notice applying for an interlocutory injunction; the Court before whom the applications come takes the ex parte motion and if satisfied that it has merit ex facie, grants it making the order to the date when the motion on notice shall be heard.
(g) Although it is made without notice to the other party there must be a real impossibility of bringing the application for such injunction on notice and serving the other party.
(h) The application must not be guilty of delay.
(i) It must not be granted unless the application gives a satisfactory undertaking as to damages.
Furthermore, because some of these instances of conflicting ex-parte orders of courts arising from an application and subsequent grant of an interim order/injunction, are also aided by forum shopping by either the litigants or their counsel or both of them, in bad faith, to the annoyance of the other party, I humbly recommend that courts should always insist on an applicant for an interim injunction/ex-parte injunction to always provide an affidavit of non-multiplicity of same action or subject matter in other courts touching on the same subject matter or for the applicant to provide such statement that no other suit on the same subject has ever been brought before any other court or that there is no pending order of court on the same subject matter between or among the parties to the application. This affidavit should be deposed to by either the Applicant’s counsel or the litigant. In this way, where the facts of non-multiplicity of actions become false, the deponent can be held culpable in criminal perjury rather than for the judiciary to be put to public embarrassment. Some judges too have had to pay the high price of losing their judicial office or suspended or being queried due to the abuse of the process of the litigants and or their counsel!
Finally, it is my humble recommendation that courts should request for an affidavit of non-multiplicity of action or for the applicant to provide such statement that no other suit on the same subject has ever been brought before any other court or that there is no pending order of court on the same subject matter between or among the parties to the application as a prerequisite to the grant of an ex-parte injunction/interim injunction. A Practice Direction of court can be made to mandate this recommended requirement recommended by this paper. This recommendation in my humble belief, would put a lasting solution to the issue of conflicting ex-parte order/interim injunction of courts.