LEGAL PRINCIPLE: CIVIL PROCEDURE — Ex Parte Applications — Nature of Discretionary Jurisdiction
PRINCIPLE STATEMENT
It is not the law that once an affected party applies to be heard in defence of an ex parte motion, the court ipso facto loses its discretionary jurisdiction to determine whether that party may be heard; otherwise, any frivolous application would automatically convert an ex parte motion into a motion on notice.
RATIO DECIDENDI (SOURCE)
Per Adio, JSC, in *7-Up Bottling Company Ltd. & Ors v. Abiola and Sons Nigeria Ltd.* (1995) NLC-1911989(SC) at pp. 28-29; Paras E-A.
"In my view, it cannot be the law that once a party to be affected by the order a court may make in an ex parte motion applies to be heard in defence of such motion, the court ipso facto loses its discretionary jurisdiction or power to determine whether such a party to be affected may or may not be heard in opposition to the motion ex parte. To hold otherwise will mean that a legitimate motion ex parte shall automatically be converted to a motion on notice the moment there is an application no matter how frivolous or flimsy by a party to be affected for leave to be heard in opposition to the motion ex parte."
EXPLANATION / SCOPE
The court retains discretion to refuse an affected party’s application to be heard on an ex parte motion. A frivolous or flimsy application does not automatically convert the proceeding to a motion on notice. The principle preserves the utility of ex parte applications. The court must exercise discretion judicially. The rule prevents abuse by parties seeking to delay or frustrate legitimate ex parte relief. The affected party may still apply to vary or discharge any order made. The court will consider the merits of the application. The principle balances access to justice with the need for urgent relief.