A motion is a written request to the court to obtain an asked for order, ruling, or direction. Once a process is filed in the registry of a Court, the party that filed it has done all that is required of him. The process is therefore presumed to be before the Court.-MOHAMMAD v. CHAGWA & ORS (2018) LPELR-44493(CA)
Importance of motions
It is pertinent to restate that in our judicial process and procedure, motions are a regular resort. Therefore, generally, our legal jurisprudence recognizes that applications are an integral part of substantive suits. The jurist Niki Tobi JSC for instance had this to say in the case of CCB (Nig) Plc v. Ozobu (1998) 3 NWLR page 290 at p.312 “……….. Hardly are cases heard and disposed of without the filing of motion seeking for one type of relief or the other …… the truth is that they form an inevitable part of our judicial system…”
It is apt that every motion must be supported by an affidavit and failure to file such an affidavit renders same bare and without support. Any decision arrived at, in such a circumstance, would have been rendered in vaccuo leading to the inescapable end result of arriving at abstract justice. See: Mobil Producing Nig. Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) 346
An application or motion on the other hand is usually supported by an affidavit or affidavits with or without exhibits, depending on the nature of the application. It is necessary for an applicant to state fully in an affidavit or affidavit, the facts he intends to rely upon in seeking the prayers or order contained in the motion paper because except with the leave of Court, he will not be heard in respect of facts not contained in the affidavit.
Types of Motion
Motions generally are of two types; Motion on Notice and
A motion is on notice where the applicant has put on notice or awareness the attention of the other party or parties involved of the existence of the motion.
An ex-parte motion is one in which the applicant for some cogent reasons, cannot put the other party or parties on notice or awareness of its existance. Both are acceptable in law.
The general practice, however is that motions are filed in Court on notice. Ex-parte motions are filed but sparingly considered by the Court in extreme or special circumstances.
The decision whether an application should be brought ex-parte or on notice is one to be considered in the light of the prevailing circumstances and not to be based on the dictates of the applicant’s or the judge’s whims.
An application ex-parte could be made in two circumstances; (i) When from the nature of the application, the interest of the adverse party will not be affected. (ii) When time is the essence of the application and In these two situations a Court will be right in exercising its discretion in granting a motion ex-parte.
But where the motion brought before the Court will affect the interest of the adverse party, a Court of law should insist and order that the adverse party be put on notice these can be done in either of two ways:-
(i) The Court orders that the application ex-parte be served on the adverse party which automatically makes it a motion on notice; or
(ii) The applicant files a separate motion on notice.” See also Kotoye Vs. CBN & Others 1989 1 NWLR (Part 98) 419.
An applicant for a non-permanent injunction may bring the application ex-parte, that is without notice to the other side as is appropriate. By their nature, injunctions on ex-parte applications can only be properly interim in nature. They are made without notice to the other side, to keep matters in status quo to a named date, usually not more than a few days, or until the Respondent can be put on notice.
The rationale of an order made on such an application is that delay to be caused by proceeding in the ordinary way by putting the other side on notice would or might cause such an irretrievable or serious mischief. Such injunctions are for case of real urgency. The emphasis is on real.”
The basis for the granting of an ex-parte order or injunction is the perceived urgency in the circumstances of the case which if not granted at the time will cause real hardship to the applicant.
The granting of the order in such circumstance will preserve the res or maintain the status quo pending the time the other side is put on notice. Where the situation or the circumstances of the case do not show the perceived urgency of the applicant then it would be safer not to grant the order sought, rather the other party should be put on notice.”
Whether a motion can be converted to an appeal
Wherever or in whatever way the table turns, this Court cannot convert a motion to an appeal. The two are quite distinct and different Court processes. They do not coalesce in anyway. A motion deals with interlocutory matters. Although there are certain appeals which deal with interlocutory matters, this Court has not the jurisdiction to convert the motion before it as an appeal.-AKINPELU v. ADEGBORE & ORS (2008) LPELR-354(SC)
Whether the refusal of court to hear a motion is a breach of the right to fair hearing
A refusal of a court to hear a motion is a breach of the right to a fair hearing guaranteed under the Constitution and an essence of the audi alteram partem rule of natural justice. It is perhaps important to add that if a Judge or court were at liberty to decide to ignore any motion filed in court it would raise a fundamental issue.-MOBIL PRODUCING (NIG) UNLIMITED & ANOR v. MONOKPO & ANOR (2003) LPELR-1886(SC)
Principle guiding the Court where there are two adversely competing motions before it
It has been firmly established that where there are two motions, one seeking to terminate an action on account of irregularity and the other seeking to save the action by curing the defect, it is the duty of the Court to take the latter motion first while the application to terminate must abide the result of the application to salvage. See Mobil Producing Nigeria Unlimited V Monokpo (2003) 12 SCNJ 206.
Whether two or more motions can be heard together with the substantive matter
In a recent decision of this Court, delivered on 18/6/14, ENUKEME Vs MAZI (2014) LPELR – 23540 (CA), we held that it is normal to hear two or more motions together, even with the substantive matter, where time is of essence, to determine the main issue in contention; that a party cannot complain of being denied fair hearing after he had been duly heard, or given opportunity to be heard.
Whether the failure to state the rule of law under which a motion is brought would render the motion incompetent
It is true that a particular rule of court or law under which a motion is brought is generally stated on the motion paper. But failure to do this will neither make the motion incompetent nor the order granted upon the motion invalid, so long as there exists a rule or law which can back up the motion. This is elementary sense of justice which needs no authority.-UCHENDU & ORS v. OGBONI & ORS (1999) LPELR-3287(SC)
Options available to a party whose motion was struck out
An applicant whose motion is struck out can either file a fresh motion or file an application to relist it, depending on the circumstances that led to the striking out of the motion or the nature of the order made; that where there was an attack on the contents of such motion prior to it being struck out, a fresh motion must be filed; and, also, a motion filed under the prerogative jurisdiction of the Court, which is struck out, can be refiled and brought before another Judge of the same jurisdiction.
The Supreme Court held in Panalpina World Transport (Nig.) Ltd. v. J. B. Olandeen International and Ors. (supra) that where a matter is struck out in a circumstance that it has not been heard on the merit, there is a liberty to relist. The word ‘liberty’ means having the right or freedom to do something (Oxford Advanced Learner’s Dictionary, 6th Edition, 682).
The rationale behind it is that a matter merely struck out is considered as pending in abeyance in the Court’s general cause list affording the claimant another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action.
Contents of a motion
- Heading of the court in which the action is brought
- The suit number
- The names of the parties and capacity
- Types of motion – MOTION ON NOTICE OR EX PARTE
- Order or rule under which it is made. Note that the Omnibus clause has no effect as it cannot grant the applicant any order or relief not expressly prayed for.
- The relief or order that is being sought
- The date of application
- Signature, name, address, of the legal practitioner or applicant who prepared the motion. (For signature, note OKAFOR v. NWEKE. FURTHER NOTE: The legal practitioner must identity himself with a chambers).
- Address of defendant for service ( MOTION ON NOTICE)
How to Move Motion
- Announce appearance: My Lord, C. C Nwokeke, appearing for the claimant/applicant.
- Before this HC clause: My Lord, before this Honourable Court is an application for an order of interim injunction dated and filed the__day of__2022.
- Authority for the application clause: My Lord, the motion is brought pursuant to__and under the inherent jurisdiction of this court
- Relief clause: My lord, we seek the following reliefs: An order of interim injunction…..pending the determination of the motion on notice for interlocutory injunction before this Honourable court
- Affidavit clause: My lord, in compliance with the rules of this Honourable Court, our motion is supported by an 15 paragraph affidavit sworn to by the claimant/applicant. We rely on all the paragraphs of the affidavit particularly paragraphs 3-12.
- Exhibit introduction clause: My lord, accompanying the affidavit is an exhibit marked EXHIBIT A.
- Written address: My lord, we have also filed a written address in support of our application. We wish to adopt same as our oral argument before this Honourable Court.
- Move clause: “We thereby move as per the terms of the motion”
- Prayer clause: We humbly pray this Honourable Court to grant the order of interim injunction
- Please the court clause: May it please this Honourable Court.
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