The legal term ‘interlocutory’ can refer to an order, sentence, decree, or judgment, given in an intermediate stage between the commencement and termination of a cause of action, used to provide a temporary or provisional decision on an issue before a law court. Generally, interlocutory applications are those made in the course of pending proceedings. That is, they are applications that are made to court while an action is pending in court and may be made at any stage of an action. (Order 26 Rule 1 Abuja High Court Rules (HCR) 2009). In Smith v. Cowell (1881) 6 QBD 75, the English Court, while explaining the nature of interlocutory order which is a natural consequence of an interlocutory application, held that “an interlocutory order means any order other than the final judgment in an action. It does not mean an order between the writ and the final judgment. It is an order available both before and after judgment in court”.
These proceedings are designed to assist the parties pursue their cases and also ensure the speedy resolution of matters. Once an action has been commenced, all subsequent applications are referred to as interlocutory applications. Interlocutory applications come by way of written application but can be made orally in certain cases. However, where the application is in writing, the following documents are required:
1. Motion paper;
2. Affidavit in support of the motion;
3. Exhibits (if necessary); and
4. Written address in support of application.
The various interlocutory applications are explained below:
A motion is an application, usually written, made to the court for the grant of an order in terms of the prayers sought in the application. A motion may be brought by either party at any stage of the proceedings. The existence of a substantive cause or matter is an essential requirement for making an application by motion. The hearing of any motion may, from time to time, be adjourned upon such terms as the court may deem fit. There are of two types of motions namely motion ex parte and motion on notice. (Order 39(3) Lagos High Court Rules.)
• Motion Ex Parte
The word ex parte means “by or for one party”, “done for, or on behalf, or on the application of one party only”. Thus, it is where the interests of the other party will not be prejudiced if he is not put on notice, that is, it is an application by one party in the absence of the other.
It is used where, from the nature of the application, there ought not to be any opposition to it, such as where the prayers sought affect the interest of the applicant only or where at the stage the application is made, the other party cannot be put on notice. An example is application for leave to serve processes by substituted means.
Generally, a motion ex parte has a life span of a few days or as may be permitted by the Rules of Court. It is usually granted to last until a named date or in anticipation of a motion on notice which is to be heard on the merit. Under the Abuja Rules, a party affected by an order made ex parte may apply by motion within 7 days after service of the Order or within any further time that may be allowed by the court to apply to set it aside (Order 26 Rule 11 Abuja HCR). But such an order shall last for only 14 days after the affected party has applied for it to be varied or discharged or for a further 14 days after such an application to vary or discharge the order has been concluded. Where the application to vary or discharge the ex parte order is not heard within 14 days of it’s being filed, the ex parte order shall lapse automatically (Order 26 Rule 12 Abuja HCR 2009). Under the Lagos Rules, there is no general provision for the lifespan of ex parte orders. Furthermore, as it relates to an order of injunction which is made pursuant to an ex parte application, it shall lapse after 7 days but can be extended for a further period of 7 days where the application for extension is brought before the order abates (Order 39 Rule 3(3) and (4) Lagos High Court Rules).
• Motion On Notice
Unless a Statute or Rule of Court permits, every motion shall be on notice (Order 26 Rule 7(1) Abuja HCR 2009). Unlike ex parte motion, this puts the other party on notice of the application thereby giving him an opportunity to respond to the application. By being put on notice, the adverse party is given the opportunity to contest the grant or otherwise of the application by the court.
It is required that motions together with all affidavits be served on the other party (Order 26 Rule 4 Abuja HCR, 2009). It should be noted that Order 26 Rule 4 Abuja HCR, 2009 states that a written address shall be served also. It may be served by any person, notwithstanding that he is not an officer of the court and without the leave of the court (Order 26 Rule 19 Abuja, HCR. 2009). Where a party is represented by Counsel, service on the Counsel is deemed as good service (Order 26 Rule 20 Abuja HCR, 2009). There should be at least 2 clear days between the service of the notice of motion and the day named in the notice for the hearing of the motion unless the court gives special leave to the contrary (Order 26 Rule 18 Abuja, HCR 2009). Under the Lagos Rules, according to Order 39 Rule 1 of the Lagos High Court Rules, it is mandatory that every motion should be served within 5 days of its filing. Rule 2 of the same Order also requires that a written address should be filed.
An injunction is as equitable remedy granted by the court compelling a party to do or to refrain from doing an act. The order is mandatory or positive where it compels a party to do an act; it is prohibitory or restive where it prohibits the doing of an act. It is defined as a preservative relief designed to maintain the status quo between the parties pending the final determination of the suit or pending a certain date. Any party may make an application for the grant of an injunction to an action once an action is commenced, before or after trial and even at the end of the proceedings before judgment, whether or not a claim for injunction was included in the party’s original action (Order 28 Rule 1(1) Abuja HCR, 2009). There are several kinds of injunctions, the most commonly used ones are discussed below:
• Interim injunction
This is an injunction granted to an applicant seeking a temporary order of court to restrain another person from doing an act or series of acts or to command a person to undo an act or series of acts towards the applicant or towards the subject-matter of a suit pending the happening of an event. Generally, applications for injunctions are to be made on notice and only in cases of urgency are they to be made ex parte (Order 26 Rule 8 Abuja HCR 2009).
• Interlocutory injunction
This is granted pending the determination of the suit or unless discharged by the court. It is applied for through a motion on notice only after a suit has been properly commenced; and if the order is granted, it will last till the determination of the case. Either party may apply for it although the application is generally made by a plaintiff. A defendant can only be granted the relief against the plaintiff only if the injunction relates to a relief claimed by the plaintiff.
• Mereva injunction
This is a kind of interlocutory injunction which a creditor suing for a debt due and owed can obtain against a defendant who is not within the country but has assets in it. He seeks to restrain that defendant from removing the assets from the country or disposing of them within the country, pending the trial of the action. The objective is to ensure that the assets would be available to satisfy, if necessary by means of execution being levied on them, any judgment the plaintiff may obtain in the action against the defendant based outside the country.
• Anton Piller order
An Anton Piller Order is an interlocutory injunction which requires a defendant or respondent to allow certain persons enter his premises to search for documents and movable articles as are specified in the court order and to permit such documents or articles to be taken away. It is an order given by an ex parte application. It is employed usually in cases of possible copyright violations and its primary objective is to prevent destruction or removal of evidence.
Where a person is under liability in respect of a debt or money or goods and he accepts to be sued in respect of same by two or more persons making adverse claim to it or a claim is made to money, goods or property taken and intended to be taken by a Sheriff in furtherance of executing a court judgment by a person other than the judgment debtor, such a person under liability or the Sheriff, as the case may be, may apply to the court for relief by way of interpleader summons (Order 43 Rule 1 Lagos HCR; Order 28 Rule 1 Kano HCR; and Order 33 Rule 1 Abuja HCR, 2009). By this procedure an Interpleader protects himself by getting the rival claimants to contest the title to the goods, property or money before the courts. There are two types of Interpleader: the Stakeholder interpleader and the Sheriff interpleader.
• Stakeholder interpleader
This is where a person who is under a liability for a debt over which he has no personal interest and which is subject to competing claims and over which he is likely to be sued or has already sued will seek relief by taking out an interpleader summons. In such a dilemma, if he pays to the wrong person, he may be compelled to pay twice. The person seeking the relief must be under a liability for a liquidated debt and there are adverse claims in respect therefore. The interpleader procedure allows him to call on the courts to ask the adverse claimant to establish their claim. For the applicant to succeed in such application, he must establish by affidavit, evidence that:
a) He claims no interest in the subject matter in dispute other than for charges or costs;
b) He does not act in collusion with any of the claimants; and
c) He is ready to bring to court or to pay or to dispose of the property as the court may direct (Order 43 Rule 3 Lagos HCR and Order 33 Rule 4 Abuja HCR, 2009).
• Sherriff interpleader
This arises where a third party claims that the property on which execution is levied or about to be levied belongs to him and not to the judgment debtor. By this procedure, the third party and the judgment creditor are called upon to substantiate their respective claims to enable the court decide whether to release the property from attachment or proceed with the sale.
The essence of this proceeding is to determine whether the property belongs to the judgment debtor or not.
Essentially, interlocutory applications are applications for orders made to court that seek to prevent a party to the case from suffering injustice because the essence/subject matter of the case has been destroyed or becomes non-existent. These orders basically ensure that not only is justice done, but it is seen to be done by preserving the status quo until the matter between the parties to a suit is resolved by the court.
Mandyen Brenda Anzaki