Ex Parte Order

An Ex parte order is any court order that is issued when one party is not present at the hearing. Ex parte hearings are allowed in various circumstances, most notably when it is an emergency situation and other party can’t be contacted, or if the petitioner needs immediate relief or protection. According to Black’s Law Dictionary, an Ex parte is a judicial proceeding or order that is “on one side only by or for one party; done for, on behalf of, or on the application of one party only”. The word ex parte is derived from a Latin phrase, meaning “one side to a dispute”.
The locus classicus on the concept and explanation of the principle surrounding the operation and the granting of ex-parte orders of interim injunction in Nigeria was enunciated in the celebrated case of Kotoye V. the Central Bank of Nigeria (1989) INWLR (pt 98) where Nnaemeka Agu JSC in explaining the principle surrounding the operation and granting of ex-parte is stated among other things that by their nature injunction granted on ex parte application can only be interim in nature. They can be made without notice to the other side. But most importantly it must be stated that the applicant who is seeking for an interim order vide ex-parte application must disclose all material facts pursuant to the application as the court will deal strictly with a party applying for an ex-parte order and misrepresenting facts.
Given its preservating nature, an ex parte order is not intended to be a temporary victory to be used against the adverse party indefinitely. Rather it is to last for a short period pending the determination of a motion on notice. However the Federal High Court (Civil Procedure Rules) 2019 provides that a person affected by an ex parte order may within fourteen days apply for the order to be discharged. Under the Lagos rules, there is no general provision for the lifespan of ex parte orders. Furthermore as it relates to an order of injunction which is made pursuant to an ex parte application, it shall lapse after seven days but can be extended for a further period of seven days where the application for extension is brought before the order abates.
The basis of granting any ex parte order is the existence of special circumstances for instance to prevent significant financial harm, if the party will be destitute if the court does not take immediate action. Or a situation to protect a child, if he or she is physically or sexually abused. An ex parte order may be issued in an attempt to protect the child, before orders that will affect a parents’ custody rightly can be made. These special circumstances requires that the order must be made otherwise an irretrievable harm or injury would be occasioned to the prejudice of the applicant.
It is worthy of note that there are dangers of ex parte orders. This orders are made without full hearing on the merit, making them an attractive target of abuse. A party may use an order of this nature in order to side step the requirement to provide notice to the other party, so that he or she will not be able to defend themselves against the action. This can cause the non-moving party to be denied due process rights.

By: Nkechi Bright-Ewere