interlocutory application

Question 1

types of motion

Answer 1

motion on notice and motion exparte O 43 R1 high court civil procedural rules of lagos state 2019 O 43 R1 high court civil procedural rules of abuja 2018

Question 2

What are interlocutory application

Answer 2

interlocutory applications are applications brought to a court while a matter is ongoing

Question 3

Differentiate between a motion ex parte and a motion on notice.

Answer 3

a motion exparte is served to the court without notice to the other and even if a motion is being moved the other party may be seen but not heard (7up bottling co v abiola and sons ltd ) motion on notice is served to the other party requesting them to apppear in court on a named date the parties are called applicant respondent

Question 4

List five examples of applications that can be made ex parte.

Answer 4

1. application for substituted service
2. application to bring a suit in representative capacity
3. application for garnishee order nisi
4. renewal of writ
   5.application for judicial review
5. application to appoint guardian ad liem

Question 5

What are the possible orders a court can make after hearing an ex parte application?

Answer 5

1. grant the order
   2.dismiss or rule out the order
2. order for it to be served on the other party

Question 6

What is the lifespan of an ex parte order in Lagos and Abuja?

Answer 6

abates after 7 days but can be extended for another 7 O43 R3 LAGOS 043 R3 ABUJA

Question 7

Explain the principle regarding conflicts in affidavits presented by opposing parties.

Answer 7

the court shall request for an oral evidence which can clear up the conflict falobi v falobi
or
where there is documentary evidence to clear the conflict the court shall do away with oral evidence s116 Evidence act as amended

Question 8

What are the ethical concerns surrounding counsel deposing to an affidavit on behalf of their client?

Answer 8

Counsel deposing to an affidavit on behalf of their client raises ethical concerns because it may compromise their objectivity and, in case of conflicts, force them to testify, potentially jeopardizing their professional role.
rule 20 of the rules of professional conduct 2023 states that it is unethical for a lawyer to depose affidavit on behalf of his client however r20(2) provide condition where such can be done :
1. where is a mere formality and no opposing evidence will be brought
2. if the testimony is concerned with uncontended matters
3. if it involves evidence regarding the nature and value of legal services a lawyer provides to his client
4. where failure to depose will lead to hardship

Question 9

Briefly explain the concept of “constructive and destructive motions” in the context of hearing motions.

Answer 9

When two motions are pending, one aiming to dismiss the suit (destructive) and the other to preserve it (constructive), the court prioritises the motion that seeks to save the suit. NALSA & Team associates v NNPC

Question 10

documents to be filed alongside motion ex parte

Answer 10

affidavit
written address

Question 11

What step(s) can a Counsel take in order to secure interest of over a clients land pending the outcome of a suit filed in court?

Answer 11

the step to be taken is to bring an application by motion on notice for interlocutory injunction to restrain the other party from doing anything on the land in dispute
pending the determination of the suit.

Question 12

move a motion for interlocotury injunction

Question 13

content of a written address

Answer 13

1. Heading of the court, suit number and parties.
2. Title
3. Introduction
4. Brief facts of the case.
5. Issues for determination.
6. Arguments in support of the issues for determination.
7. Conclusion.
8. List of authorities.
9. Date
10. Franking by the counsel.
11. Address for service

Question 14

conditions for interpleader

Answer 14

That the applicant has no interest in the subject matter

That the applicant has not colluded with any of the claimants.

That the applicant is wiling to transfer or dispose of as the court may direct

Question 15

ethical issues for interlocotory application

Answer 15

Rule 32 RPC 2023. A lawyer shall deal candidly and fairly with the court.

Rule 27 RPC 2023. A lawyer shall not take undue advantage of opposing lawyer.

Swearing of affidavit by counsel-Rule 20 RPC 2023.
see OKPABIO V. NIGERIAN FILMS & CENSORS BOARD

Suppression of facts in ex parte application. Rule 32 RPC 2023

Late filing of motions and counter affidavits with a view to delay proceedings. Rule 30 RPC 2023

Rule 2(2) Code of Conduct for Judicial Officers.
A Judicial officer must avoid the abuse of the power of issuing interim injunctions, ex parte.

Question 16

is the court duty bound to hear an application

Answer 16

Once an application has been filed except it is withdrawn, the court is duty bound to hear the application and make pronouncement. See DANDUME LGC V YARO (2011) 11 NWLR(PT1257)159

Question 17

conditions for when a respondent wont file a counter affidavit

Answer 17

there are not opposing the application
if they are responding on points of law badejo v minister of education
if the content of the affidavit is self contradictory and no reasonable court will rely on such

if the contents of the affidavit does not match the reliefs sought

Question 18

explain the types of interpleader

Answer 18

sheriffs interpleader : See section 34 of the Sheriff & Civil process Act. Used in circumstances where a Sheriff in execution of a judgment attaches property which is claimed by a 3rd party who is not the judgment debtor

stakeholder in terpleader:See O48 R 1 Abuja, O 47 R1 Lag , NWEKESON V ONUIGBO (1991) 3 NWLR (PT.178) 125 one by any other person who is not a sheriff
for example where a tenants landlord dies and two sons from diffrent mothers are requesting him to pay rent

Question 19

what is the diffrence in the mode of application for interpleader in lagos and abuja

Answer 19

in abuja it is called summons
in lagos it is callled interpleader summons and they are both filed with affidavit and writted address O 47 R 2(1) and O 48 R 5 Abuja

Question 20

what is a further affidavit

Answer 20

If the applicant, upon being served with the counter affidavit, sees the need to oppose the facts deposed to in the counter affidavit, he is expected to file a further affidavit it.
and it is meant to be filed within 7 days of service O43 R3 ABJ LAG