LEGAL PRINCIPLE: CIVIL PROCEDURE — Ex Parte Applications — Exercise of Judicial Discretion
PRINCIPLE STATEMENT
The trial court has full discretion to refuse an application to be heard on an ex parte motion, so long as the discretion is exercised judicially and judiciously; an appellate court will not interfere unless the discretion was wrongly exercised or tainted by illegality or substantial irregularity.
RATIO DECIDENDI (SOURCE)
Per Adio, JSC, in *7-Up Bottling Company Ltd. & Ors v. Abiola and Sons Nigeria Ltd.* (1995) NLC-1911989(SC) at p. 25; Paras A-C.
"It is necessary to stress that the learned trial Judge had full discretion in the matter and was entitled to refuse the application so long as the exercise of that discretion was exercised judicially and judiciously. The refusal of the trial court to hear the defendants at the hearing of the plaintiff's application ex parte was clearly a result of the exercise by him of his judicial discretion and unless that discretion is shown to have been wrongly exercised or shown to have been exercised upon wrong principle or that the exercise was tainted by some illegality or substantial irregularity, an appellate court will on principle, not interfere with the exercise of that discretion."
EXPLANATION / SCOPE
The trial court’s discretion to refuse audience on ex parte applications is broad. The appellate court will not interfere unless the discretion was exercised on wrong principles. The principle respects the trial court’s position. The appellant must show illegality or substantial irregularity. The rule applies to all ex parte proceedings. The trial court must act judicially. The appellate court will not substitute its own discretion. The burden is on the appellant to demonstrate error. The principle promotes judicial efficiency. The trial court is best placed to assess the circumstances.