LEGAL PRINCIPLE: CIVIL PROCEDURE — Case Management — Ex Parte Orders — Remedy of Aggrieved Party — Application to Vary or Discharge
PRINCIPLE STATEMENT
Where an order is properly made ex parte, the remedy of a party aggrieved by such order is not to appeal against it, but to apply to the court which made the order to vary or discharge it. An ex parte order is always provisional and for a limited period.
RATIO DECIDENDI (SOURCE)
Per Wali, JSC, in Provisional Liquidator of Tapp Industries Limited v. Tapp Industries Limited (1995) NLC-2281991(SC) at p. 32; Paras. A–C.
"Where an order is properly made ex parte, the remedy of a party aggrieved by such order is not to appeal against it, but to apply to the court which made the order to vary or discharge it. The rules of court, such as Order XXXIII rule 11 of the Federal High Court (Civil Procedure) Rules, provide for such applications. An ex parte order properly made is always provisional and for a limited period and does not decide the civil rights of the parties involved in the litigation."
EXPLANATION / SCOPE
An ex parte order is provisional and subject to variation or discharge. The aggrieved party should apply to the same court, not appeal. The principle applies to all ex parte orders. The court has discretion to vary or discharge. The rule prevents unnecessary appeals. The ex parte order does not finally determine rights. The party may appeal if the application to vary or discharge is refused. The principle promotes efficiency and allows the trial court to correct its own orders.