INTERLOCUTORY APPLICATIONS UNDER THE NIGERIAN COURT

Generally, interlocutory applications are those made in course of pending proceedings. That is, theyare applications that are made to court while an action is pending in court and may be made at any stage ofan action – Order 7 Rule 1 Abuja High Court Rules (HCR), 2004 (now Order 26 Rule 1 Abuja High Court Rules (HCR), 2009). Interlocutory application follows the cause or event in the proceedings and therefore where the cause or event necessitates filing or making an interlocutory, an aggrieved party will be perfectly entitled to do so in the court – Ezegbu v. FATB Ltd (1992) 1 NWLR 698 at 730. In Smith v. Cowell (1881) 6 QBD 75, the English Court, while explaining the nature of interlocutory order which is a natural consequence of an interlocutory application held:

            “an interlocutory order means any order than the final judgment in an action. It does not mean an order between the writ and the final judgment. It is an order available both before and after judgment in court”.click on the link in the right or left hand side for more, 

The major advantage of some of these proceedings are designed to assist the parties pursue their cases and also ensure the speedy resolution of matters.

Once an action has been commenced, all subsequent applications are referred to as interlocutory applications – Nalsa Teem Associates Ltd. v. NNPC (1991) 8 NWLR (Pt. 212) 652; (1991) 11 SCNJ 51; Kotoye v. Saraki (1991) 8 NWLR (Pt. 211) 638.

MODE OF APPLYING TO COURT

Order 39 Rule 1(1), Lagos provides that where by the rules any application is authorized to be made to the court or a judge in chambers, such application shall be made by motion. But in Abuja, the application may be made by motion – Order 7 R. 2(1) Abuja 2004 (now Order 26 Rule 2(1), Abuja 2009). It should be noted that it is contentious applications that are made in court whilst the non-contentious ones are made in chambers. But nevertheless, whether it is in open court or in chambers, the rules of justice must be adhered to – Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 358. In this case, it was also held that the power of the Supreme Court to sit in chambers derives from the rules made under section 236 of the Constitution and that, therefore, the power is constitutional and not a breach of section 36(3) of the Constitution which enacts that courts proceedings shall be held in public.

Ordinarily, interlocutory applications require that there must be pending a substantive action in court. Thus, an interlocutory application filed before the commencement of an application will be incompetent. However, a claimant may file any application along with an originating process and may serve both on any defendant simultaneously – Order 39 Rule 8, Lagos.

The procedure of serving an interlocutory motion together with a writ of summons or before the defendant enters appearance is usually adopted where the plaintiff feels the need to urgently obtain an order of court. For example, in actions for damages for trespass, the plaintiff may feel the need to restrain a continuing trespass.

Interlocutory applications come by way of written application but can be made orally in certain cases. For example, where the application is explicit enough but the opposing party can object to the making of an interlocutory application orally or the court may refuse to entertain such an oral application and consequently, direct that it be put in writing and also served on the other party. However, where the application is in writing, the following documents are required:

1)      Motion paper;

2)      Affidavit in support of the motion;

3)      Exhibits (if necessary); and

4)      Written address in support of application.

MOTIONS

A motion is an application, usually written, made to the court for the grant of an order in terms of the prayers sought in the application. A motion may be brought by either party at any stage of the proceedings – Order 8 Rule 1, Kano High Court Rules.

The existence of a substantive cause or matter is an essential requirement for making an application by motion – Nigeria Cement Co. Ltd v. NRC (1992) 1 NWLR 747 CA. The hearing of any motion may, from time to time, be adjourned upon such terms as the court may deem fit.

Motions are filed with affidavits in support, deposed to by the applicant and these affidavits are evidence on which the applicant relies in support of his motion. It is not compulsory that the applicant must be the deponent in the affidavit. What is essential is that whoever is deposing has the authority of the applicant to do so. In Enuma v. Consolidated Discounts Ltd. (2001) 2 NWLR (Pt. 697) 424, the court held that the affidavit in support of an application for summary judgment need not be deposed to by the plaintiff. The affidavit shall also state the fact that in the deponent’s belief, there is no defence to the claim except as regards the amount of damages claimed.

Motions are of two types viz. motion ex parte and motion on notice – Order 39(3) Lagos HCR. The applicant is bound by the prayers in his motion as a plaintiff is bound by the case put forward in the statement of claim – Commissioner of Works, Benue State v. Devcon Ltd (1988) 3 NWLR 407. The court cannot go outside the terms of the motion, however misconceived these may be, it is bound by the terms or prayers in the motion – Govt. of Gongola v. Tukur (1989) 4 NWLR 592 AT 603.

MOTION EX PARTE

The word ex parte means “by or for one party”, “done for, or on behalf, or on the application of one party only”. Thus, it is where the interests of the other party will not be prejudiced if he is not put on notice, that is, it is an application by one party in the absence of the other.

It is used where, from the nature of the application, there ought not to be any opposition to it, such as where the prayers sought affect the interest of the applicant only or where at the stage the application is made, the other party cannot be put on notice. For example, applications for leave to serve processes by substituted means; or for Enforcement of Fundamental Human Rights where the leave of court is necessary – Order 1 Rule 2(3) of Fundamental Rights Enforcement Procedure Rules, 1979; Attamah v. Anglican Bishop (1999) 9 SCNJ 23. In such proceedings, the only participant is the party (or person) moving the motion. It is also used for leave to serve a third party notice – Order 13 Rule 19, Lagos; Order 10 Rule 18(2) Abuja (now Order 7 Rule 17(2) Abuja HCR, 2009); and for seeking a very urgent relief or order as in applications for interim injunctions – Order 39 Rule 3(1) Lagos; Order 31 Rule 1(2) Abuja (now Order 28 Rule 1(2) Abuja HCR, 2009).

There are two main circumstances which an application ex parte could be made. In Leedo Presidential Motel Ltd. v.  Bank of the North, (1998) 7 SCNJ 328 at 353, the Supreme Court laid down two circumstances under which an application may be brought ex parte:

1)      When, from the nature of the application, the interest of the adverse party will not be affected; and

2)      When time is of the essence of the application.

In any of these circumstances, a court may rightly exercise its discretion by granting a motion ex parte. But where the motion will affect the interest of the adverse party, a court of law should insist and order that the adverse party be put on notice

Generally, the court may either grant the hearing of ex parte motion or refuse it, or it may where appropriate make an order that the other party appear on a certain date and show cause why the application should not be granted, or order that hearing of the application be adjourned and the other party put on notice – Order 7 R. 10 Abuja (now Order 26 Rule 10 Abuja HCR, 2009). Where an applicant obtains an order ex parte rather than by a motion on notice, such order will be void and liable to be set aside for having been obtained in breach of natural justice – Unibiz Nig. Ltd. v. CBCL Ltd (2003) 6 NWLR (Pt. 816) 402 at 433

Ex parte application requires full disclosure of facts to be made to the court as default of this will be a ground for setting aside any order made on the basis of the application – Bloomfield v. Sereny (1945) 2 All ER 646. It is also required that the rule under which an application is brought should be stated on the motion paper. But this is not a requirement of law, a motion could not be struck out or dismissed because of failure to observe this practice – In Uchendu v. Ogboni (1999) 4 SCNJ 64 at 76, the Supreme Court, dealing on the matter, held that while it is true that a particular rule of court or law under which a motion is brought is generally stated on a motion paper, failure to do this will neither make the motion incompetent nor the order granted upon the motion invalid, so long as there exists a rule or law which can back up the motion.

LIFE SPAN OF EX-PARTE APPLICATIONS

Generally, it has a life span of few days or as may be permitted by the Rules of Court. It is usually granted to last until a named date or in anticipation of a motion on notice which is to be heard on the merits – Odutola v. Lawal (2002) 1 NWLR (Pt. 749) 433; Unibiz Nig. Ltd. v. CBCL Ltd. (supra); Gov. Lagos State v. Ojukwu (1986) 2 NWLR (Pt. 18) 621.

Under the Abuja Rules, a party affected by an order made ex parte may apply by motion within 7 days after service of the Order or within any further time that may be allowed by the court apply to the court to set it aside – Order 7 R. 11 Abuja (now Order 26 R. 11 Abuja, 2009). But such an order shall last for only 14 days after the affected party has applied for it to be varied or discharged or for a further 14 days after such an application to vary or discharge the order has been concluded. Where the application to vary or discharge the ex parte order is not heard within 14 days of its being filed, ex parte order shall lapse automatically – Order 7 R. 12 Abuja (now Order. 26 Rule 12 Abuja, 2009).

Under the Lagos Rules, there is no general provision for the lifespan of ex parte orders. Further, as it relates to an order of injunction which is made pursuant to an ex parte application, it shall lapse for 7 days but can be extended for a further period of 7 days where the application for extension is brought before the order abates – Order 39 Rule 3(3) and (4) Lagos.

The court also has inherent jurisdiction to revoke or set aside (suo motu) an order made ex parte where for example, it feels that it gave its original leave under a misapprehension upon new facts being drawn to its attention – Becker v. Noel (Practice Note) (1971) 1 WLR 803.

MOTION ON NOTICE

Unless a Statute or Rule of Court permits, every motion shall be on notice – Order 7 R. 7(1) Abuja (now Order 26 Rule 7(1) Abuja, 2009). Unlike ex parte motion, this puts the other part on notice of the application thereby giving him an opportunity to respond to the application. By being put on notice, the adverse party is given the opportunity to contest the grant or otherwise of the application by the court.

SERVICE OF MOTION

It is required that motions together with all affidavits be served on the other party – Order 8 R. 4 Kano; Order 7 R. 4 Abuja (now Order 26 R. 4 Abuja HCR, 2009). It should be noted that Order 26 R. 4 Abuja High Court Rules, 2009 states that a written address shall be served also.

It may be served by any person, notwithstanding that he is not an officer of the court and without the leave of the court – Order 7 R. 19 Abuja (now Order 26 Rule 19 Abuja, HCR. 2009). Where a party is represented by counsel, service on the counsel is deemed as good service – Order 7 Rule 20 Abuja (now Order 26 Rule 20 Abuja HCR, 2009). There should be at least 2 clear days between the service of the notice of motion and the day named in the notice for the hearing of the motion unless the court gives special leave to the contrary – Order 7 R. 18 Abuja (now Order 26 Rule 18 Abuja, HCR. 2009). In Lagos Rules, it is mandatory that every motion should be served within 5 days of its filing – Order 39 Rule 1 Lagos. It also requires that a written address should be filed also – Order 39 Rule 2, Lagos.

A person may be served with a notice or put on notice of a motion even though he is not a party to the substantive suit if his interest may be affected by the order sought. Where the other party intends to oppose the motion, it shall file his written address and counter-affidavit within 7 days of the service of the motion on him. The applicant, in turn, has 7 days after the service of a counter-affidavit on him to file an address in reply on points of law and further affidavits, if need be – Order 39 Rule 1(3) and (4) Lagos. At the hearing, if the judge is of the opinion that any person who ought to have been put on notice had not been put on notice, the court may adjourn the hearing or dismiss the motion. Where the court adjourns hearing, it will do so on terms as it deems fit – Order 39 Rule 6 Lagos; Order 8 Rule 21 Uniform Rules; and Order 7 Rule 22 Abuja (now Order 26 Rule 22 Abuja HCR, 2009).

An applicant moves his motion by oral argument and the time limit for oral argument when moving a motion is not more than 20 minutes – Order 31 Rule 4 Lagos; and Order 22 Rule 8 Abuja HCR, 2009 (it used to be for not more than 30 minutes under Order 36 R. 5, Abuja HCR, 2004). A prayer will not be deemed abandoned because oral argument is not led in support of it as long as there are facts in support of the affidavit, and the party had drawn the court’s attention to the paragraphs relied upon - Jeco Pracla Nigeria Ltd v. Ukiri (2004) 1 NWLR (Pt. 855) 519.

CONTENTS OF A MOTION

1)      The heading of the court in which the action is pending or sought to be commenced;

2)      The suit number;

3)      The name of the parties and their official titles e.g. ‘applicant’ and ‘respondent’;

4)      The type of motion, that is, whether it is a motion ex parte or motion on notice;

5)      It must state the order, law or rule of court under which the motion is brought. This requirement is specifically provided for under Order 39 R. 1 Lagos but in Abuja, Kano and other jurisdictions using the Uniform Rules, it has been a matter of practice to state the rule or Law under which the application is brought. The Supreme Court has however held in Uchendu v. Ogboni (1999) 4 SCNJ 64 at 76, that failure to state the rule or law under which an application is brought is not sufficient to make the application incompetent or the order made thereunder invalid, provided the court has jurisdiction. Also, in Maja v. Samouris (2002) 9 NSCQR 546 at 567, the Supreme Court further held that even where the powers of the court is invoked under a wrong rule, there will be no good reason for refusing to make the order sought for, if the court has jurisdiction to make the order in the first place;

6)      The order or relief sought;

7)      The grounds upon which the reliefs are sought;

8)      The date of the application;

9)      The name, signature, and address of the applicant’s counsel; and

10)  The address of the respondent for service.

HEARING OF MOTIONS

A motion is heard by the court when the party applying moves the motion before the court and urges the court to grant the application. Like a judgment, it must be in writing and reasons must be given why the motion is dismissed or granted after arguments have been taken on both sides – Onyekwuleje v. Animashaun (1996) 3 NWLR (Pt. 450) 564. Also, where a judge fails to fix a motion for hearing or after having fixed same for hearing, refuses to hear it, same would amount to a refusal of the application and the applicant is entitled to appeal against it – Salim v. Ifenkwe (1996) 5 NWLR (Pt. 450) 564.

Generally, the order in which pending motions are heard is in the discretion of the court although it is usual to take pending motions in the order in which they are filed. Where there are two motions with adverse effect on the proceeding, one seeking to regularize, and the other to dismiss or strike out the suit, the motion seeking to regularize the proceeding will be taken first – A. G (Fed.) v. AIC Ltd. (1995) 2 NWLR (Pt. 378) 388; Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652; Daniel Matinga & Ors. v. Mil. Admin (Plateau State) & Ors. (1998) 9 NWLR (Pt. 567) 694.

INJUNCTIONS

Injunctions are preservative relief designed to maintain the status quo between the parties pending the final determination of the suit or pending a certain date. Any party may make an application for the grant of an injunction to an action once an action is commenced, before or after trial and even at the end of the proceedings before judgment, whether or not a claim for injunction was included in the party’s original action – Order 31 R. 1(1) Abuja (now Order 28 Rule 1(1) Abuja HCR, 2009). A party may not however make an application for an injunction before filing of the originating process in the action although he may file his application for injunction together with the originating process – Order 39 R. 8 Lagos; Order 31 R. 1(3) Abuja (now Order 28 Rule 1(3) Abuja HCR, 2009).

INTERIM INJUNCTION

This is an injunction granted to an applicant seeking a temporary order of court to restrain another person from doing an act or series of acts or to command a person to undo an act or series of acts towards the applicant or towards the subject-matter of a suit pending the happening of an event. Generally, applications for injunctions are to be made on notice and only in cases of urgency are they to be made ex parte – Order 7 R. 8 Abuja (now Order 26 R. 8 Abuja, 2009).

Interim injunction is not granted as a matter of course because the power of the court to grant it is of a very extraordinary jurisdiction – Ogujiefor v. FRN (2002) 16 NWLR (Pt. 793) 262; Order 31 Rule 2 Abuja (now Order 28 Rule 2 Abuja HCR, 2009). It is granted in circumstances of real urgency.

The main features of an interim injunction are:

a)      It is made to preserve the status quo until a named date, or until a further order, or until an application on notice for interlocutory injunction is heard or determined;

b)      It is made in situations of urgency to prevent the destruction of the rights of a party;

c)      It can be made during the hearing of an application for interlocutory injunction if it appears that irreparable damage may be done before the hearing is completed – Olowu v. Building Stock Ltd. (2004) 4 NWLR (Pt. 684) 445.

INTERLOCUTORY INJUNCTION

This is granted pending the determination of the suit or unless discharged by the court. It is applied for through a motion on notice only after a suit has been properly commenced; and if the order is granted, it will last till the determination of the case. Every party may apply for it although the application is generally made by a plaintiff. A defendant can only be granted the relief against the plaintiff only if the injunction relates to a relief claimed by the plaintiff – Nig. Cement Co. v. NRC (supra)

Conditions for grant of interlocutory injunctions are:

1)      Existence of a legal right – Injunctions are usually granted to protect legally recognized rights – Green v. Green (1987) 2 NSCC 1115. Where the applicant has no right recognizable by law, injunction cannot be granted – Ladunni v. Kukoyi (1972) 1 ANLR (Pt. 1) 133. The applicant must show that he has a legal right which is threatened and worthy of protection – Akapo v. hakeem Habeeb (1992) 7 SCNJ 119.

2)      Substantial issue to be tried – The applicant needs to show to the court in his affidavit that the suit is not frivolous. He must show that there is a dispute to be resolved by the court at the trial.

3)      Balance of convenience – This is a question of who will stand to lose more if the status quo ante is restored and maintained in the final determination of the suit, that is, the court is to consider whether if the plaintiff were to succeed at the trial, he would be adequately compensated by an award of damages for the loss he would have suffered as a result of the defendant’s continuing to do what was sought to be restrained between the time of the application and the time of the trial. In Ayorinde v. A-G. Oyo State (1996) 2 SCNJ 198, the Supreme Court made it clear that the determination of the question by the court where the balance of convenience rests in a case is a question of facts and not of law.

4)      Irreparable damage or injury – The applicant has to show that damages will not be adequately compensated for the injuries he will suffer if the injunction is refused thereby causing the defendant to do more damage.

5)      Conduct of the parties – The applicant must show that his conduct before and after the trial is not reprehensible – Ladunni v. Kukoyi (supra). An applicant in breach of contract, for instance, would not be entitled to an injunction against a defendant alleged to be in breach of the same contract – Kotoye v. CBN (1989) 2 SCNJ 31.

6)      Undertaking as to damages – Although failure of an applicant to state in his affidavit or otherwise that he undertakes to pay damages may not rob the court of the discretion to grant the injunction, it is usually required that the applicant undertakes to pay all damages caused to the opposing party if the order so granted ought to have been granted – Adeyemi Works Construction Nig Ltd v. Omolehin (2004) AFWLR (Pt 232) 1564.

MEREVA INJUNCTION

This is a kind of interlocutory injunction which a creditor suing for debt due and owing can obtain against a defendant who is not within the country but has assets in it, restraining that defendant from removing the assets from the country or disposing of them within the country, pending the trial of the action. The locus classicus is the English case of Mereva Compania Naveira SA v. International Bulk Carrier Ltd (1975) Lloyd’s Rep. 509.

The whole objective is to ensure that the assets would be available to satisfy, if necessary by means of execution being levied on them, any judgment the plaintiff may obtain in the action against the defendant based outside the country. The assets in question need not be the subject-matter of the suit – Efe Finance Holdings v. Osagie & Ors. (2000) 5 NWLR (Pt. 658) 536.

Various High Court Rules (HCR) have made provisions for such interim attachment of property – Order 16 R. 1 Kano; and Order 15 R. 1 Abuja (now Order 30 Rule 1 Abuja HCR, 2009).

Mode of application –

An application for Mereva injunction is by ex parte motion supported by an affidavit containing facts upon which the applicant relies for the grant of the order. In order for the application to succeed, the affidavit must disclose:

1)      That there is an action by the plaintiff pending against the defendant within jurisdiction;

2)      The existence of strong and arguable case by the plaintiff;

3)      That the defendant has assets within jurisdiction (the plaintiff must furnish particulars);

4)      Grounds for believing that the defendant owns the assets;

5)      That the defendant is a foreigner and/or that his place of business and domicile are in a foreign country;

6)      That there is real likelihood of the defendant removing the assets from within jurisdiction, thus rendering any judgment which the plaintiff may obtain, having no purpose or value, or that he is a persistent debtor – Barclays Johnson v. Yuill (1980) 3 AER 190 at 195;

7)      That the defendant has not given any indication of willingness to pay – Hunt v. B. P Exploration Co. (Libya) Ltd. (1980) NZLR 104.

8)      That the balance of convenience is on the side of the plaintiff; and

9)      That the plaintiff is ready to give an undertaking as to damages – Durojaiye v. Continental Feeders Nig. Ltd (2001) 10 NWLR (Pt. 722) 657.

Though Mereva injunction is a kind of interlocutory injunction, it is different from interlocutory injunction in a way that all the applicant needs to do is succeed on the strength of his case while interlocutory injunction requires that the applicant needs to show that there is a serious question to be tried – Ayorinde v. A. G Oyo State (1996) 2 SCNJ 198.

ANTON PILLER ORDER

This type of injunction is designed to ensure that pending trial, the defendant does not dispose of any article in his possession which could be prejudicial at the trial. It is particularly useful to plaintiffs who are victims of commercial malpractice like breach of copyrights, patent rights, etc. It is awarded in exceptional cases of extreme urgency because of its draconian nature. The practice is confirmed in the case of Anton Pillar K.G. v. Manufacturing Process Ltd. & Ors (1976) (1976) 1 AER 779. The order compels the defendant to allow the plaintiff or his solicitor to enter his premises and inspect documents or any other material. Unlike a search warrant, it does not authorise the plaintiff to enter against the defendant’s will but it orders the defendant to permit the plaintiff to enter so that if the defendant does not comply, not only does he commits a contempt of court but adverse inferences would be drawn against him at the trial. 

Where a plaintiff shows a very strong prima facie case that a property, the subject matter of the suit, is in the possession of the defendant and that the defendant will most probably destroy it if he had notice of the proceedings, the order may be granted - Ferodo Ltd v. Unibros (1980) Fleet Street Reports 489.

By this order, the court authorises one person to enter upon the premises of another and inspect property being kept there and may have such property detained. The various High Court Rules provide for preservation, detention and inspection of property which is the subject matter of a suit (Anton Piller) – Order 38 Rule 4 Lagos; Order 33 Rule 2 Kano; and Order 31 Rule 2 Abuja (now Order 28 Rule 2 Abuja HCR, 2009). It may also be granted against un-named defendants selling particular categories of infringing articles, e.g. street hawkers – EMI Records Ltd v. Kudhali (1985) FSR 36.

Also, section 22(1) of the Copyright Act, Cap 68, LFN, 1990, which is a statutory type of the Anton Pillar principle in the Federal High Court made provisions to the Anton Piller order by providing thus –

“In any action for infringement of any right under this Act, where an ex parte application is made to the court, supported by an affidavit that there is reasonable cause for suspecting that there is in any house or premises any infringing copy or any plate, film or contrivance used or intended to be used for the purpose of making copies of any other article… the court may issue an order upon such terms as it deems just, authorising the applicant to enter the house or premises at any reasonable time by day or night accompanied by a police officer not below the ran of an Assistant Superintendent of Police and;

a)      Seize, detain and preserve any such infringing copy or contrivance; and

b)      Inspect all or any document in the custody or under the control of the defendant relating to the action.”

Mode of application

It is by ex parte motion supported by affidavit which must disclose the following facts:

a)      That the applicant has a strong prima facie case;

b)      That he stands the risk of a very serious potential or actual damage to his interest;

c)      That there is clear evidence of the defendant having in his possession offensive or incriminating documents or things and of a real possibility that the defendant may dispose of or destroy the material before an application on notice can be made;

d)     That he is ready to give an undertaking to indemnify the defendant in damages if at the end of the hearing inter parties, it appears to the court that the order ought not to have been made.

INTERPLEADER

Where a person is under liability in respect of a debt or money or goods and he accepts to be sued in respect of same by two or more persons making adverse claim to it or a claim is made to money, goods or property taking and intended to be taken by a sheriff in furtherance of executing a court judgment by a person other than the judgment debtor, such a person under liability or the sheriff, as the case may be, may apply to the court for relief by way of interpleader summons – Order 43 Rule 1 Lagos; Order 28 Rule 1 Kano; and Order 26 Rule 1 Abuja (now Order 33 Rule 1 Abuja HCR, 2009). For example, where a tenant of a deceased landlord who died intestate and succession to whose estate is governed by customary law is faced with rival claimants for rents by the landlord’s brother on one hand and by his son on the other hand, each claiming to be entitled to the rents under the applicable customary law. Faced with such competing complaints, the person in possession is in a dilemma if he pays the rent to one claimant, he runs the risk of being sued by the other. He can call upon the two claimants to interplead, that is, claim against one another so that the title to the property may be decided.

By this procedure an Interpleader protects himself by getting the rival claimants to contest the title to the goods, property or money before the courts. 

There are two types of Interpleader: the sheriff interpleader and the stakeholder interpleader.

STAKEHOLDER INTERPLEADER

This is where a person who is under a liability for a debt over which he has no personal interest and which is subject to competing claims and over which he is likely to be sued or has already sued will seek relief by taking out an interpleader summons. In such a dilemma, if he pays to the wrong person, he may be compelled to pay twice. The person seeking the relief must be under a liability for a liquidated debt and there are adverse claims in respect therefore. 

The interpleader procedure is a platform that allows him to call on the courts to ask the adverse claimant to establish their claim.

Where the applicant has not yet been sued but suspects to be sued, the expectation must be well founded – Diplock v. Hammond (1854) LJ Ch. 550. For the applicant to succeed in such application, he must establish by affidavit, evidence –

a)      That he claims no interest in the subject matter in dispute other than for charges or costs;

b)      That he does not act in collusion with any of the claimants; and

c)      That he is ready to bring to court or to pay or to dispose of the property as the court may direct – Order 43 R. 3 Lagos; Order 26 R. 4 Abuja (now Order 33 R. 4 Abuja, 2009).

SHERIFFS INTERPLEADER

This arises where a third party claims that the property on which execution is levied or about to be levied belongs to him and not to the judgment debtor. By this procedure, the third party and the judgment creditor are called upon to substantiate their respective claims to enable the court decide whether to release the property from attachment or proceed with the sale.

The essence of this proceeding is to determine whether the property belongs to the judgment debtor or not – Nwekeson v. Onuigbo (1991) 3 NWLR (Pt. 178) 125.

Interpleader proceedings enables the Sheriff to ask the court to determine whether the goods or property belong to the judgment debtor or the rival claimant. When a court delivers a judgment you now have a judgment creditor and judgment debtor. The sheriff protects the third party from possible litigation from the judgment creditor or the rival claimant – Holman Brothers Nig. Ltd. v. Compass Trading Co. Ltd. (1992) 1 NWLR (Pt. 217) 368.

With respect to the Sheriff Interpleader in addition to the High Hourt Rules, Section 34 of the Sheriffs and Civil Process Act and the rules made under it shall apply – Proviso to Order 43 Rule 1 Lagos.

PROCEDURE FOR APPLYING FOR INTERPLEADER SUMMONS

In Abuja and Kano, the application for relief under interpleader proceedings shall be made by originating summons unless when made in a pending action, it shall be by way of motion - Order 28 R. 3(1) Kano; Order 26 R. 3(1) Abuja (now Order 33 R. 3(1) Abuja HCR, 2009). Unlike in other originating processes like writ of summons, appearance need not be entered by the party served with the originating summons – Order 28 R. 3(3) Kano; Order 26 R. 3(3) Abuja (now Order 33 R. 3(3) Abuja HCR, 2009).

In Lagos, the application is made by originating summons but where the applicant is a defendant, the application can be made at any time after service of the originating process and this is by way of interlocutory summons - Order 43 Rules 4 & 5 Lagos.

Where an interpleader summons is issued during a pending action, the judge shall stay all further proceedings in the action – Order 43 Rule 3 Lagos; Order 28 Rule 6 Kano; Order 26 Rule 6 Abuja (now Order 33 Rule 6 Abuja HCR, 2009).

The service of an interpleader summons on the claimants to the debt or property calls on them to appear in court and state the nature of their claims while amending or relinquishing it. Where a claimant duly served fails to appear or appears but fails to comply with any order made after his appearance, the court or judge in chambers may make an order declaring him and all persons claiming under him barred forever from bringing an action against the applicants and persons claiming under him. However, this does not affect the rights of the claimants as between themselves – Order 43 Rule 9 Lagos; Order 28 Rule 8 Kano; Order 26 Rule 8 Abuja.

ORDERS THAT THE COURTS MAY MAKE ON HEARING AN INTERPLEADER SUMMONS

1)      Where there is a pending action, the court may order that either of the claimants be made defendants in lieu or in addition to the applicant.

2)      Where there is no pending action, the court will make an order directing which of the claimant should be plaintiff and which should be the defendant – Order 43 R. 7 Lagos; Order 26 R. 7 Abuja (now Order 33 R. 7 Abuja HCR, 2009); Order 28 Rule 7 Kano.

3)      Where the question that arises between the claimants is one of law, the court may there and then decide the question – Order 43 Rules 8 Lagos.

It should be noted that a ‘plaintiff’ is addressed as a ‘claimant’ in Lagos.

Also, under the Lagos Rules, an applicant shall not be disentitled to relief on the grounds that the titles of the claimants do not derive from a common origin but are adverse to and independent of each other – Order 43 Rule 3 Lagos.

AFFIDAVIT EVIDENCE

Affidavit is statement made on oath and sworn to by the maker known as deponent to be true to the best of his knowledge, information or belief – Josien Holdings Ltd. v. Lornamead (1995) 1 NWLR (Pt. 371).

An affidavit is a written declaration of facts made voluntarily and confirmed by oath or affirmation of the party making it and taken before a person (known as Commissioner for Oaths) empowered to administer it. Usually, it is the Registrar of Court where the proceeding is pending that administers oath.

Oral evidence will not be allowed except with the leave of court – Order 7 Rule 24 Abuja (now Order 26 Rule 23 Abuja HCR, 2009); Order 8 Rule 23 Uniform Rules.

CONTENTS OF AFFIDAVITS

A good affidavit shall contain the following information –

a)      The heading of the court before which the oath is sworn;

b)      The suit number where one has been given;

c)      The names of the parties and their official titles e.g. applicant, plaintiff, claimant, etc

d)     The application which the affidavit supports;

e)      The name, status, sex, nationality, religion, profession and address of the deponent;

f)       Where the deponent is not a party, the authority on whom he deposes;

g)      Where the deponent deposes to facts not within his personal knowledge, the source and circumstances of his information must be stated – Ajayi Farms Ltd. v. NACB (2003) 4 NWLR (Pt. 810) 427; section 90 of the Evidence Act;

h)      The oaths clause; and

i)        The signature and official stamp of the Commissioner for Oaths.

An affidavit is written in numbered paragraphs and contains a mandatory clause which is the ‘Oath Clause’.  It reads:

“I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act.”

Absence of this clause will render the affidavit invalid but the deponent need not comply with it word for word – Lonestar Drilling Nigeria Ltd. v. Triveni Engineering And Industries & 9 Ors. (1999) 1 NWLR (PT. 588) 622.

Affidavits constitute evidence and are, therefore, different from pleadings which are statements of facts yet to be proved. Thus, it is wrong for the court to treat both as the same – Magnusso v. Koiki (1993) 12 SCNJ 114, which held that a court can properly act on affidavit evidence.

COUNTER–AFFIDAVIT

A party served with an affidavit in support of a motion and who is desirous of contesting the motion must file a counter-affidavit. The only way to controvert affidavit evidence is by another affidavit. The counter-affidavit must specifically deny averments made in the affidavit in support of the motion and not just making general denials. In Adesina v. Commissioner (1996) 4 SCNJ 112 at 113, the Supreme Court held that if a party deposes to certain facts in an affidavit, his adversary who wishes to dispute the facts so stated has a duty to swear to an affidavit to the contrary. Otherwise, the facts deposed to may be regarded as duly established.

Where a respondent fails to file a counter-affidavit or fails to specifically deny averments made in the affidavit in support of the motion, the court shall act on the unchallenged or uncontradicted evidence and deem them to be admitted and treat them as such – Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT 135) 688; Akagbe v. Abimbola (1978) 2 SC 39. The exception to this rule is that where the respondent wants to rely on points of law alone or facts as deposed to by the applicant himself, he need not bother to file a counter-affidavit – Badejo v. Minister of Education (1996) 9-10 SCNJ 51.

FURTHER–AFFIDAVIT

If the applicant, upon being served with a counter-affidavit, sees the need to oppose facts stated in the counter-affidavit, he is expected to file a further affidavit. Even where the respondent fails or neglects to file a counter-affidavit, the applicant may file a further affidavit if some fresh facts come to his knowledge before the hearing of the application.

CONFLICTS IN AFFIDAVITS

Where there is a conflict on material facts deposed to by the parties, it is imperative for the court to take oral evidence in order to be able to resolve the conflict and make a finding of fact – Falobi v. Falobi (1976) 1 NMLR 169. However, where there is documentary evidence that can resolve the conflict, the court may dispense with oral evidence – Eimskip Ltd v. Exquisite Industries (Nig.) Ltd. (2003) 105 LRCN 485.

The essence of the oral evidence is to give opportunity to either party to cross-examine the deponents on either side or to examine and cross-examine other witnesses called on both side on the material issue of facts – Falobi v. Falobi (supra). Where a party files multiple affidavits in which there are contradictions, it does not qualify as conflict in affidavit to justify calling the deponent to give oral evidence – Arjay Ltd v. AMS Ltd (2003) 7 NWLR (Pt. 820) 577.

EXHIBITS

Where there is documentary evidence attached to any of the affidavits as exhibits and such exhibit is favourable to the party making it, the court will use it to assess the oral testimony – Tanko v. First Bank OF Nigeria Plc (2004) 4 NWLR (PT. 863) 425.

In law, an annexure to an affidavit is automatically part of the affidavit and are referred to as exhibits and not annexure – A. G Enugu State v. Avop Plc (1995) 6 NWLR (Pt. 399) 90; Order 33 R. 8 Lagos; Order 8 Rule 9 Abuja (now Order 27 Rule 8 Abuja HCR, 2009). An exhibit being part of an affidavit must be consistent with paragraphs deposed to in the affidavit. Where therefore there is any contradiction or inconsistency between a paragraph of the affidavit and the exhibit(s), a court is bound to hold such contradiction or inconsistency against the deponent.

Every certificate on all exhibits referred to in an affidavit signed by the commissioner before whom the affidavit is sworn shall be marked with the short title of the proceedings – Order 33 Rule 9 Lagos; Order 8 Rule 10 Abuja (now Order 27 Rule 9 Abuja HCR, 2009).

ETHICAL ISSUES

1)      In an interlocutory application, the court should not consider issues required to be determined in the substantive suit for to do so would amount to prejudging that suit itself.

2)      A person making application by motion need not only file the motion in court but must also move it in court.

3)      A judge should not act carelessly or recklessly or in abuse of power in making orders based on ex parte applications.

4)      A counsel in filing counter-affidavit must only reply to that which is in the affidavit and not to include fresh facts or ridicule an affidavit.

DRAFTING OF MOTIONS (SAMPLES)

(A) EX-PARTE MOTION

IN THE HIGH COURT OF …………………….. STATE

IN THE …………………. JUDICIAL DIVISION

HOLDEN AT ………………..

                                                                                                            SUIT NO……………….

BETWEEN

DEF …………………………………………….                  PLAINTIFF / APPLICANT

AND

XYZ ……………………………………………                   DEFENDANT

MOTION EX PARTE

BROUGHT PURSUANT TO ORDER 7 RULE 5 OF THE ENUGU STATE HIGH COURT CIVIL PROCEDURE RULES, 2007 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT

TAKE NOTICE that this Honourable Court will be moved on …………… the …………. day of ………. 2009 at the Hour of 9 O’ clock in the forenoon or so soon thereafter as counsel on behalf of the APPLICANTS can be heard praying this Honourable Court for the following orders:

1.      AN ORDER OF COURT granting leave for the issuance of the writ of summons to be served on THE 4^TH DEFENDANT, having its address of business and residence in ……………. (address) outside the jurisdiction of this Honourable Court.

2.      AN ORDER FOR SUBSTITUTED SERVICE OF ALL PROCESSES IN THIS MATTER ON THE DEFENDANT by pasting on the gate to his family house at ……………… (address).

AND for such order or further orders this Honourable Court may deem fit to make in the circumstances.

DATED THIS …………….. DAY OF…………… 20…..

ABC

COUNSEL TO PLAINTIFFS/APPLICANTS

WHOSE ADDRESS FOR SERVICE IS:

NO 3. BWARI ROAD

ABUJA.

(B)  MOTION ON NOTICE

IN THE HIGH COURT OF …………………

IN THE ……………………. JUDICIAL DIVISION

HOLDEN AT ……………………..

                                                                                                                        SUIT NO………….

BETWEEN

DEF …………………………………………………..         PLAINTIFF/APPLICANT

AND

XYZ …………………………………………………..         DEFENDANT/RESPONDENT

MOTION ON NOTICE

BROUGHT PURSUANT TO ORDER 24 RULE 1 ENUGU STATE HIGH COURT CIVIL PROCEDURE RULES, 2007 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT

TAKE NOTICE that this Honourable Court will be moved on …….. the ……. day of ………… 20…. at the Hour of 9 O’ Clock in the forenoon or so soon thereafter as counsel on behalf of the APPLICANTS can be heard praying this Honourable Court for the following orders:

AN ORDER OF COURT granting leave for the applicant to amend his statement of claim by adding a new paragraph 5 as shown by underlining in the Amended Statement of Claim attached to the Affidavit and marked exhibit ‘A’ AND for such order or further orders this Honourable Court may deem fit to make in the circumstances.

DATED THIS ………… DAY OF …………. 20……..

                                                                                               

ABC

Counsel to plaintiffs/applicants

Whose address for service is:

No 3. Bwari Road

Abuja.

For service on:

The Defendant

No. 5 Kubwa Road

Abuja

(C)  AFFIDAVIT

IN THE HIGH COURT OF …………………

IN THE ……………………. JUDICIAL DIVISION

HOLDEN AT ……………………..

                                                                                                                        SUIT NO………….

BETWEEN

DEF …………………………………………………..         PLAINTIFF/APPLICANT

AND

XYZ …………………………………………………..         DEFENDANT/RESPONDENT

AFFIDAVIT IN SUPPORT OF APPLICATION FOR AMENDMENT OF STATEMENT OF CLAIM

I, DEF, male, 25, student, Nigerian citizen residing at ……………….. (address), do hereby make oath and state as follows:

1.      That I am a secretary in the law firm of ABC, counsel to the plaintiff/applicant by virtue whereof I am conversant with the facts stated in this affidavit.

2.      That I have the consent and approval of my employers as well as the plaintiff/applicant to depose to this affidavit.

3.      That I was informed by ABC Esq on ……………… (date) at our office at about …… (time) and I verily believed him that:

a)      He prepared the statement of claim based on the instructions of his client, the plaintiff/applicant.

b)      He mistakenly omitted to reflect the payment the plaintiff/applicant made to the defendant/respondent on ……………….. (date) in the statement of claim.

c)      It is necessary to amend the statement of claim to reflect the amount paid to the defendant/respondent.

4.      That the statement of claim as amended reflecting the …………. (amount) paid by the plaintiff/applicant to the defendant is attached and marked as exhibit ‘A’

5.      That I know it is in the interest of justice for the amendment to be effected

6.      That I swear to this affidavit solemnly and conscientiously believing its content to be true and correct in accordance with the Oaths Act.

………………………

Deponent

Sworn to at the High Court Registry, Enugu

THIS …………….. DAY OF …………… 20……..

BEFORE ME

…………………………………..

COMMISSIONER FOR OATHS

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Barr. Ezekiel Chigozie has many years experience in providing legal representation and advising clients across exceptional broad range of contentious and non-contentious matters. His main goal is to help clients resolve contentious or non-contentious legal problems they are having rapidly and cost effectively.

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