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.
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.