How Long Should an Ex-Parte Injunction Last?

This article by Babatunde Fagbohunlu, SAN and Adeola Kembi discusses the duration of ex-parte orders, using case law such as the Supreme Court decision in  Kotoye v CBN as the starting point, and that of the Court of Appeal in Deux Projects v Access Bank as the most recent, asserting that the amendments made to the Federal High Court Civil Procedure Rules in 2019 with regard to their duration have created more problems in the interpretation of their duration, and suggesting guiding principles to be followed by judicial decisions, so that there can be an alignment with the High Court of Lagos State Civil Procedure Rules in that regard, which are consistent and clear 

Introduction 

A few cases being litigated in the courts, have raised important questions about the duration of ex parte orders. Firstly, what is the policy that inspired the law regulating the life span of ex-parte orders? Secondly, how has that law evolved over the years? Thirdly, has the evolution of the law remained faithful to the policy that inspired it?

The Policy

The important starting point, is the decision in Kotoye v CBN (1989) 1 NWLR (Pt. 98) 419, where the Supreme Court of Nigeria identified historical instances of abuse of ex-parte injunctive orders, and admonished courts to ensure that such orders last for “not more than a few days …”. Several other decisions of the Supreme Court and the Court of Appeal, have reiterated this policy. 

Evolution of the Law

At first, the procedural rules of the various High Courts implemented this policy enthusiastically. The 2004 rules of the High Court of Lagos State allow an ex-parte order to be in force for only seven days, and a Judge may only extend such order “upon application” and subject to a number of procedural safeguards. The Federal High Court’s 2001 rules provide that “if a motion to vary or discharge an ex-parte order is not taken with 14 days of its being filed, the ex-parte order shall automatically lapse”.

Subsequent reviews of the rules of the Federal High Court, then introduced modifications that have created more problems than solutions. In 2009, the word “automatically” was deleted from the provision, and in 2019, the rule maker added the phrase “unless the court otherwise directs in the interest of justice”. The fundamental flaw in this latter revision is that, it does not specify how and when a court “otherwise directs”. 

The Court of Appeal’s decision in the Deux Projects Limited v Access Bank (2022) 2 CLRN 121 is understood by some Lawyers to have held that a court “otherwise orders” when it makes the ex-parte order to be in force until the hearing of the motion on notice (as is the standard practice). In our respectful view, this understanding of the decision in Deux flies in the face of logic, law and justice. 

Logically, it is difficult to understand how a court can “otherwise direct” a consequence that depends on a contingency that has not yet occurred (and that may never occur). What is “otherwise directed” is that, an ex-parte order terminates fourteen days after a motion to discharge it is filed if the motion is not heard. However, at the time of making the ex-parte order, a court will not know whether a motion to discharge will be filed or not. How, then, can a court direct, at that stage, that the filing of a motion to discharge will not trigger the fourteen-day expiry rule? 

Legally, such understanding of Deux is also wrong. It means that a court decides pre-emptively, and on an ex-parte basis, that a subsequent motion to discharge will not have an effect that it presumptively has under the rules. In effect, before a defend ante injustice of such outcome must be obvious at this point. Before a decision is made against a Defendant that its application to discharge an ex parte order should not have the effect of triggering the fourteen-day expiry rule, it is only just that such Defendant should be heard. The factors that the court must take into consideration in deciding whether to extend the life of an ex-parte order (notwithstanding the filing of an application to discharge and the subsequent expiry of fourteen days), must necessarily involve a consideration of the facts and law presented in support of the application to discharge it. 

Further, this type of watering-down of the protection afforded by the fourteen-day expiry rule, means that ex-parte orders are likely to remain in force for unduly protracted periods. In Deux, the order was granted on 21 May 2019, was still in force over five months later when the Federal High Court delivered its 1 November, 2019 ruling affirming the continued force of the order, and from all indications was still in force over nineteen months later when the Court of Appeal, in its 14 December, 2020 decision, affirmed that the order had not lapsed. 

Law Diverges from Policy? 

If Deux is good law, then the law has clearly diverged from the policy stated in cases like Kotoye v CBN (see above) and Group Danone v Voltic (2008) 7 NWLR (Pt. 1087) 637 that, given the circumstances in which they are obtained (that is, in the absence of the Defendant), and the tendency to abuse them, ex-parte orders must not last for more than a few days. We argue that it is time to overhaul rules of court and judicial decisions, which water down the legal protection afforded by this policy to Defendants. We suggest that in future, judicial decisions should clarify that the proper interpretation to be given to the extant Federal High Court rules relating to the expiration of ex-parte orders is as follows:

1. If a motion to discharge an ex-parte order is not heard within fourteen days of its filing, the ex-parte order expires. 

2. The exception, that is, when “the court otherwise directs in the interest of justice”, can only be activated if the beneficiary of the ex-parte order files an application for the court to extend the ex-parte order. In effect, the exception is not triggered simply because the court made the ex-parte order to last until the hearing of the motion on notice. See Titilayo Plastics v Fagbola (2019) 14 NWLR (Pt. 1691) 88 (“A trial Judge granting an ex parte injunction and adjourning the hearing of the motion on notice to a long date would not save the life of the ex parte order … once [the party affected by the order applies to court to have the order varied or discharged], the time starts to run on the life of the ex parte order …”).  

3. Such application must be filed and granted before the order expires, and there should be a significant burden on the beneficiary of the order to satisfy the court that the order should remain in place. See the Supreme Court’s decision in Brittannia-U v Seplat Petroleum (2016) 4 NWLR (Part 1503) 541 (“…by effluxion of time, the interim injunction was no longer valid at the time [the first instance court] purportedly ordered that it ‘remained in force’”, and the extension of an ex-parte order after it had lapsed by effluxion of time is “a nullity, since there was no order at the material time in existence to be extended”).

4. There is nothing in the rules, that indicates that the exception can be invoked multiple times. Therefore, in a deserving case, the court can “otherwise order” only once, and for a defined period.

As shown above, these suggested guiding principles align with numerous appellate decisions that were made both before and after Deux. They also align with the standards set by the High Court of Lagos State Civil Procedure Rules which, since 2004 have consistently provided, despite successive revisions, that: (a) an order of injunction made upon a motion ex-parte shall abate after seven days, and (b) a Judge may extend the ex-parte order upon application, if satisfied that the motion on notice has been served and the extension is required in the interest of justice or to prevent irreparable or serious mischief, provided the application for the extension is made before the order abates, and the extension is limited to a further seven days from the date that the extension is granted. 

Babatunde Fagbohunlu, SAN and Adeola Kembi, Senior Partner and Managing Associate respectively at Aluko & Oyebode, Nigeria’s ALN member firm

The Nwoko Affair: Child Marriage, Drug Abuse, Domestic Violence?

Social media has been abuzz in the past few weeks, with the rather embarrassing display of a soap-opera like marital dispute between one of Nigeria’s controversial Politicians, Senator Ned Nwoko and one of his six wives, Regina Daniels, a Nollywood actress, who has made allegations of domestic violence, threats, Police harassment and other offences against her husband. The crucial issue of her age at the time Regina Daniels started her relationship with the Senator, has also become a bone of contention. Senator Nwoko has made counter-allegations, accusing  Regina Daniels of drug abuse, and irresponsible mothering of their two sons. Recriminations have flowed from supporters of both parties, and the belligerence is not abating. Surprisingly, the silence from the Senate has been deafening, with feminists claiming that, had it been a female Senator in Senator Nwoko’s position, she may have already been suspended for bringing the Upper Chamber into disrepute, particularly with the allegations of underaged marriage and drug use said to have taken place in Nwoko’s house. Kunle Edun, SAN; Mandy Demechi-Asagba; Suraj Olarenwaju and P.D.Pius discuss the issues surrounding the rather unfortunate marital imbroglio, examining some of the pertinent laws related thereto, and questioning why there appears to be inaction on the part of the law enforcement agencies whose functions cover the offences alleged in this controversy, such as NAPTIP, NDLEA and the Police