Motion-Ex-Parte

The perennial but unfounded misconception that an action, especially judicial review, can be commenced or initiated by a Motion Ex parte keeps staring me in the face whenever I am involved in like-matters so much that I have had to ‘amend’ a Motion Ex parte for leave simply because the court insisted, with respect, that it was an originating process.

Worthy of mention is also the erroneous (in my respectful opinion as we shall see later) decision of Balogun, J. (Rtd.) of the High Court of Lagos State in the case of The State v Colonel M. Magoro in Suit No. ID/19M/80 reported in (1980) FNLR 379 where in a ruling on an application for leave to apply for judicial review, his lordship held that:

“In these proceedings commenced by ex parte motion dated 4th July 1980, Major Adeyemi Ladejobi, a Commissioned Officer in the Nigerian Army, seeks through his Counsel, Dr. Hamid Kusamotu, leave for an order for leave to apply for an order of mandamus” (Emphasis mine)

This ruling sadly confirms the fact that such misconception dates back to the eighties or further down on the misconception of the mode of commencement of application for judicial review.

Before moving to the decision under the spotlight, permit me to quickly digress a bit on mode of commencement of judicial review under the High Court of Lagos (Civil Procedure) Rules 2012 in particular. By Order 40 rule 3(1) and (2), an Applicant must first seek leave to “apply for judicial review” which leave presupposes permission to apply for judicial review. See Oparaocha v Obicher (2016) LPELR-40615 (CA) where the court held that “leave means permission obtained from the court to take some action. Such permission must be obtained before taking the requisite step.”

That being said, now, to the decision in Omon v Omon (supra), although this piece could swim without the facts of the case, I find them rather an interesting and curious read, in the light of the subject matter and the reality of our societal values as they relate to the institution of marriage.

On the 8th day of December 1990, the Respondent (Rosemary) was allegedly given out in marriage to the 1st Appellant (Effiong) who was based in the United States of America at all material times) in line with the Efik custom and tradition. On the same day, the marriage was allegedly ‘blessed’ in the Sacred Heart Cathedral, Egerton, in Calabar with members of both families and the public in attendance. It was explained away in Rosemary’s affidavit that “That the rush to do this marriage on the same day was to enable the 1st defendant to travel back to the USA since he was already out of time”

After the ceremonies, Effiong returned to the United States with an arrangement, which would enable Rosemary join him later. After about 10 years of waiting, information reached Rosemary that Effiong had divorced his white wife in the States thereby clearing the coast for Rosemary to travel down but to her surprise, she became privy to a wedding ceremony between Effiong and one Lizzy Oku Ita (the 4th Appellant) which was to hold between 17th – 31st of March, 2001.

In order to prevent her “husband” from marrying another woman, Rosemary filed a Motion Exparte at the High Court of Cross River State on the 19th day of March 2001 (two days into the wedding ceremonies) seeking the following reliefs:

 “1.An Order restraining the 1st and 4th defendants from attempting to contract any form of marriage whether customary or English whilst the marriage between the plaintiff and the 1st defendant still subsist.
2. An Order of interim injunction restraining the 2nd and 3rd defendants from arranging for any form of marriage between the 1st defendant and the 4th defendant or any other person without first of all dissolving the earlier marriage between the plaintiff and the 1st defendant. 3. And for such further order(s) as this honourable court may (sic) deem fit to make in the circumstance.”

Before the Motion Exparte was heard, Effiong and his Co-Defendants filed a Motion on Notice denying any marriage to Rosemary and seeking inter alia, an order dismissing the proceedings initiated by Motion Exparte for being incompetent.

On the 27th day of March 2001, the trial court heard and granted the prayers sought in the Motion Exparte which ruling culminated in the appeal under review.

 At the Court of Appeal, the fundamental issue resolved was whether the proceedings were properly commenced or initiated by ex parte motion in the High Court as was done by the respondent.

In resolving the issue, the court had recourse to the applicable rules under which Rosemary filed her suit and held thus:

By Order 1 rule 1 of the Cross River State High Court (Civil Procedure) Rules 1987, it is provided that subject to provision of any Act, civil proceedings may be began by writ, originating summons, originating motion or petition. In other words, there are four different methods as shown above by which a litigant may commence actions of civil proceedings in the High Court of Cross River State as is obtainable in any other High Court in Nigeria under its Civil Procedure Rules. Order 1 rule 2(1) of the self same High Court Civil Procedure Rules of Cross River State sets out proceedings which must begin by a writ of summons, while Order 1 rule 2(2) and rule 2(3) respectively set out the proceedings which may be began by originating summons and by motion or petition as the case may be. I do not deem it necessary to itemize here the various proceedings that should be begun in the High Court by each of the four different methods stated above, but suffice it to say that if a law or a rule of practice or procedure prescribes that proceedings in respect of a particular cause of action shall be commenced by one method, it would be wrong and indeed indefensible for a litigant to commence the proceedings in respect of that particular cause of action by any of the other method or methods.” (Emphasis mine)

On the effect of Rosemary’s use of Motion Ex parte, Ekpe, JCA (as he then was) in his lordship’s leading judgement held thus:

From my close perusal of Order 1 rule 2 of the said High Court (Civil Procedure) Rules of Cross River State, there is no provision for commencing an action or proceedings by ex parte motion. Therefore, I am of the view that the respondent was in a grievous error by commencing the proceedings in this case by ex parte motion instead of by writ of summons as prescribed in Order 1 rule 2(1) of Cross River State High Court (Civil Procedure) Rules 1987. The action or proceedings thus commenced by ex parte motion in this case is incompetent. The error in so doing has occasioned a fundamental defect to the action or proceedings and not a mere irregularity which can be cured by Order 2 rule I of the self same High Court (Civil Procedure) Rules. Consequently, the court below lacked the competence or jurisdiction to entertain this action or proceedings that was wrongly initiated by ex parte motion. … Accordingly, the proceedings in this case in the court below are a nullity and ought to be set aside having been wrongly initiated or commenced by ex parte motion.” (Emphasis mine)

From the foregoing, since the provision of Cross River State High Court (Civil Procedure) Rules 1987 on modes of commencement of suits is fundamentally impari materia with the provision of the High Court of Lagos Civil Procedure Rules 2012 and other High Courts rules, it goes to good reason that, the decision in Omon’s case is binding on them to clear all nagging doubt as to whether an action can be commenced by Motion Exparte.

In conclusion, since this Court of Appeal decision appears to be standing alone (as far as the writer is aware) in the sense that, the court made sweeping reference to what is obtainable in all other High Courts of the federation on the impropriety of instituting an action by Motion Ex parte, it remains the law until set aside. See also Uwah Printers (Nig.) Ltd. v. Umoren (2000) 15 NWLR (Pt.689) 78. Except there is an express provision in the rules of any court that allows commencement of suits by Motion Ex parte, the decision above is binding on all courts of the Federation to the effect that a suit cannot be validly commenced by a Motion Ex parte.

Olumide Babalola writes from Lagos.

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