LEGAL PRINCIPLE: CIVIL PROCEDURE — Ex Parte Applications — Right to Vary or Discharge Orders
PRINCIPLE STATEMENT
Any party affected by an order made on an ex parte motion may within 7 days of service (or such further time as the court allows) apply to vary or discharge the order by motion on notice; the court's discretion to grant or refuse such variation or discharge remains unfettered.
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. 26; Paras B-D.
"It is thus clear that any party who is affected by an order made upon a motion ex parte may within 7 days of the service of the order upon him or within such further time as the court shall allow, apply to the court to vary or discharge such an order, Such an application shall however be by motion on notice to the party in whose favour the order complained of was made. I should perhaps add that the discretion of the court to grant or refuse such variation or discharge again remains unfettered."
EXPLANATION / SCOPE
An affected party may apply to vary or discharge an ex parte order within 7 days of service. The court may extend time. The application must be by motion on notice. The court’s discretion on variation or discharge is unfettered. The principle provides a remedy for parties affected by ex parte orders. The rule balances the need for urgent relief with fair hearing. The court may vary, discharge, or affirm the order. The applicant must show good cause. The principle applies to all ex parte orders. The court will consider the merits of the application.