Civil week 7 WN.pdf

Wura’s Notes Civil Litigation Week 7: Interlocutory Applications Learning Outcomes 1. Explain the meaning of interlocutory applications and list examples; 2. The principles and scope o...

Wura’s Notes Civil Litigation Week 7: Interlocutory Applications Learning Outcomes 1. Explain the meaning of interlocutory applications and list examples; 2. The principles and scope of examples of interlocutory applications and relief like interim and interlocutory injunctions, Mareva Injunction, Anton Piller Injunction and Interpleader; 3. Explain the meaning, types and list the contents of a motion; 4. Discuss the principles regarding affidavit evidence; 5. Draft and argue simple motions (affidavits and written address in support inclusive); and 6. Discuss ethical issues involved in abuse of ex-parte injunctions, swearing of affidavits by counsel and suppression of facts in ex parte applications. Definition Interlocutory applications are applications made by either party to any action during the pendency (a period of being pending or awaiting settlement) of a court action Usually made during trial Can be made by either party Usually called Interlocutory because results in the court making an order about that application They are not the final decisions of the court Parties to the suit are APPLICANT and RESPONDENT EXAMPLES OF INTERLOCUTORY APPLICATIONS Substituted service of an originating process Judgement in default of appearance/defence Extension/enlargement of time to file a court process out of time (e.g., defence( Amendment of pleadings Interim/interlocutory injunction Interim relief pending appeal (e.g., stay of execution) For joinder of a party as a claimant/defendant etc For joinder as a third party Security for costs Renewal of writ Uses of Interlocutory applications 1. To remedy defects in a pending suit 2. To get a restraining order/ restrain an act that will be prejudicial to another party 3. In some instances, it is a condition precedent to the commencement of a substantive suit 4. Can be used to seek temporary reliefs or additional reliefs to the ones contained in the claim 5. To terminate a substantive suit 6. To remedy delay-when the applicant has run out of time in doing a thing required by the rules AIM To assist the parties in the orderly presentation of their cases Helps to expediate the judicial process  Ensures that justice is done in a matters Helps to uphold the principles of fairness and equity Helps to get judgement NOTE: lawyers may use interlocutory applications as delay tactics -Steve Ugba v Suswam Mode of application Order 43 Rule 1 Lagos; Order 43 Rule 1 Abuja Interlocutory application is required to be made either in open court or to the judge in chamber. o Orally – Interlocutory applications where the matter is non-contentious/non- substantia. This may be used where there are typographic errors in the process o By motion ex parte supported by affidavit and written address o By summons NOTE: When an interlocutory application is filed in court, the court must consider and give a ruling on any pending application before finally deciding the substantive suit – Kotoye v Saraki 1991 NOTE: When hearing an interlocutory application, the court must NOT consider issues to be determined in the substantive suit while determining an interlocutory application – Akapo v Hakken 1992 Days of filing In LAGOS, when you file an application, it shall be served within 5 days of filing if not it will be struck out --- O43 R1(2)(B) Lagos ABUJA does not have any time frame but it should be filed and served at a reasonable time MOTION A motion is an application usually made in writing to the court for the grant of an order in terms of the reliefs sought in the application Contents of a Motion Heading of the court The suit number Parties(‘applicant’, ‘respondent’) Type of motion ( ex parte or on notice) The order/ rule or law under which the application is brought. O 43 R1 Lag, O 43 R 1 Abuja, FALOBI V FALOBI (1979) UCHENDU V OGBONI The notice itself.( TAKE NOTICE that….) The order or relief sought Date of the application Name, signature of counsel. It cannot be signed by a law firm see the case of OKAFOR V NWEKE (2007) The address of applicant’s counsel The name and address for service on the respondent or his counsel  Types of motions Motion ex-parte Motion on notice MOTION EX PARTE It is an application for an order of court without putting the other party on notice of the suit. Even where the party to be affected is in court – 7-Up Bottling Company v Abiola & Sons Ltd It is one sided application – involving only the interested applicant o Even where the other party , be is seen but not heard Where an ex parte motion is permitted/allowed? Where time is of the essence (urgency) Where from the nature of the application, the interest of the adverse party will not be affected negatively – Leedo Presidential Motel v Bank of the North Ltd NOTE: Motion ex parte shall be supported by an affidavit and written address – O43 R1(1) NOTE: No application for an injunction shall be made ex parte unless the applicant files with it a motion on notice O 43 R 3(1) Abuja and O 43 R 3(2) Lagos Applications that can be made by motion ex-parte Applications for 1. Leave to defend a suit in a representative capacity 2. Application for substituted service 3. Interim injunction 4. Removal of a writ 5. Garnishee order nisi 6. Anton pillar injunction 7. Mareva injunction 8. Third party proceedings 9. Leave to commence proceedings Orders the court may make hearing ex parte applications Court can. Grant the application Strike out the application Adjourn the hearing and direct that the motion be served on the other party Order that the respondent appear in court within a given time to argue against the order Life span of ex-parte order An ex parte order is expected to last for a short period In Abuja and Lagos, it shall abet after 7 days – O43 R 3(2) Abuja & O43 R 3(3) Lagos Judge may extend the period of time, if it is satisfied that the motion on notive has been served and where extension is necessary, it shall be given an extension, and it will not exceed 7 days o The application for extension should be made before abatement and the extension shall not exceed 7 days from the day it is granted Features of Motion Ex Parte Order 39 Rule 3(3) Lagos; Order 43 Rule 2 Abuja  Expires after 7 days Extension of period is done: o In the interest of justice o To prevent an irreparable or serious mischief, provided that the motion on notice is served (Order 39 Rule 4 Lagos, Order 43 Rule 3 FCT) Application for extension should be made before the abatement of the ex parte order; the extension cannot exceed 7 days from the date of the extension granted o Order 43 Rule 3(2) Abuja The affected party has the option to apply for the variation or discharge of the order made pursuant to a motion ex parte There is a duty imposed on an applicant not to misrepresent oR distort facts in an ex parte application. MOTION ON NOTICE A motion on notice is one which is served on the other party asking him to appear in court on a named date for the hearing of the same. Personal service of motion is not required unlike originating processes Every motion shall be on notice to the other party except under any law or rules – O43 R3(10 Lag NOTE: it must be accompanied by affidavit in support and written address – O43 R1(1 and 2) Lag Service of Motion In both lagos and abuja, There must be at least 2 clear days between the date of service of motion and its hearing unless the court grants special leave to the contrary The respondent who wants to oppose shall file a counter affidavit and written address within 7 days – O43 R1(3) Abuja; O43 R1(3) Lagos The applicant has 7 days to file reply in any 043 R1(4) Abuja Who can serve? 1. Litigation officer/law clerk Note that there must be proof of service and depose and affidavit of service In FHC it is usually the balif/sheriff (court officials) that serve the process. But, you may also service yourself which is cheaper In both Abuja and Lagos, the applicant has 7 days to file and serve a reply on point of law to the counter affidavit (if any) In Abuja, he may file a reply affidavit with his address in reply In lagos, every motion must be served within 5 days or it will be struck out A respondent who is unable to file his counter affidavit within time prescribed may ask for extension of time to do so by motion on notice supported by affidavit and written address He will attach the counter affidavit to show he is acting in good faith Adjournment of hearing Generally ---- A motion on notice may be struck out or hearing may be adjourned upon such terms as the judge may deem fit. Some of the terms that the judge may deem fit include That the party that ought to be served at a particular time The judge can adjourn hearing of an application upon such terms as he may deem fit -O43 R7 Abuja Application for adjournment at the request of a party shall not be made more than two times – Or 43 r8 Abuja; Or 43 R 6 Lagos NOTE: Court may deal with non-contentious matters in chambers Some applications that can be made by motion on notice Application for; Joinder of parties Interlocutory injunction Amendment of pleadings Striking out of pleadings Default judgement Orders the court may make after hearing a motion on notice ` Grant the order as prayed (what has been asked for) Grant an order less than what was prayed Make an order striking out or dismissing the application (Note the difference) NOTE: The court cannot make an order above what has been prayed or sought for but court can make consequential order – Governor of Gongola State v Tukur 1898 SERVICE OF INTERLOCUTORY APPLICATIONS Lagos – within 5 days of filing. Otherwise, application may be struck out o See Order 43 Rule 1—5 Lagos on the procedure/ order of service of address. Counter affidavit and reply o Order 43 Rule 1(2) Lagos Abuja – there is no requirement for time of service of a motion Unless there is a special leave to the contrary, there must be at least 2 clear days between the service and the time fixed for the heading of a motion o Order 43 Rule 6 FCT o Order 43 Rule 4 Lagos  Personal service is not required. You serve on the address of service. o Order 7 Rule 4 FCT o Order 9 Rule 4 Lagos Adjournments – not more than twice at the instance of a party o Order 43 Rule 6 Lagos HEARING OF MOTION When the motion is moved. It is simply moving the application either in court or in chambers Contentious applications are heard in open court while non contentious may be heard in chambers. In Abuja, motion ex parte may be deemed moved and the written address adopted without actually moving same See O 43 R4 Abuja HOW TO MOVE MOTION 1. Identify the application 2. State the rule or law under which the application is brought 3. State the prayers being sought on the motion paper 4. Draw the attention of the court to the affidavit in support of the application including further affidavit if any. 5. Make references to any exhibit attached if any. 6. Draw the court’s attention to the written address and adopt same. 7. Where the respondent has filed a counter affidavit, respond to it. 8. Urge the court to grant the application 9. Where the respondent is opposing the application by way of a counter affidavit he will indicate and refer the court to his counter affidavit, adopt his written address and urge the court not to grant it. 10. The court will deliver a bench ruling, stand down for ruling or adjourned for ruling as the case may be. 11. Where the respondent has no objection and did not file any counter he may indicate he has no objection and he may ask for cost. LIMIT TO FILING OF INTERLOCUTORY APPLICATION As a general rule there is no limit to the number of application to be filed in a particular suit. Where an application is meant to delay proceedings or it is frivolous it will be struck out. In Abuja, an application for amendment of pleadings can be brought only twice during trial and without limit during pre-trial conference. See O 25 R1 In Lagos, an application for amendment of pleadings can be brought only twice during trial and without limit during case management conference. See O 26 R1 OBLIGATION TO HEAR EVERY MOTION  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) Where a motion for extension of time to file defence was not heard and judgment was delivered. It was set aside on appeal. ORDER OF HEARING MOTIONS The order of hearing a motion is at the discretion of the court. It is usually taken in the order in which they are filed. However, where there are two pending motions, one seeking to destroy and the other seeking to save the suit,( constructive or destructive motions) the one seeking to save the suit will be heard first. See AG FED V. AIC LTD AFFIDAVIT Every motion shall be supported by an affidavit. O 43 R 1 Abuja, O 43 R1(1) Lagos. Where the application is one brought on point of law there is no need for an affidavit EREJUWA II V. DEDUWA (1970) It is a written statement of facts made by the maker under oath. The maker is referred to as the deponent. Every affidavit must comply with the provisions of section 115 Evidence Act. If the deponent deposed to the affidavit in a language other than the language of the court, ( English language) the affidavit must be translated to the language of the court and both the English version and the other language must be presented to court. It must also have a jurat See GUNDIRI V NYAKO (2014)2 CONTENTS OF AFFIDAVITS Heading of court before which the oath is sworn The suit number where it has been given The names of parties The application which the affidavit supports. E.g. affidavit in support of motion on notice Name, nationality, religion profession and address of deponent Where deponent is not a party, the person by whose authority he deposes Where the facts are not within his knowledge, the source of his knowledge or information must be stated The oath’s clause. Signature and official stamp of commissioner for oaths SOME PRINCIPLES RELATING TO AFFIDAVIT ➔ A court may in civil proceedings order proof of facts by affidavit evidence. section 107 of EA ➔ An affidavit must not contain any extraneous matter. ➔ An affidavit shall not contain objection. ➔ An affidavit shall not contain prayers (reliefs). ➔ An affidavit shall not contain legal arguments. See Section 115(2) Evidence Act. ➔ An affidavit shall not draw conclusions whether of facts or law. ➔ An affidavit shall contain statement of facts only ➔ If the deponent derived his information from another person rather than his personal knowledge, he shall state the name of his informant and also furnish reasonable  particulars of the time, place and circumstance of the information. Section 115(4) Evidence Act. ➔ A deponent shall not swear to an affidavit before himself. So if a person is a commissioner for oaths or Notary public, he is disqualified to attest to the affidavit that he is a deponent. See section 112 Evidence Act ➔ If the deponent is making the affidavit on the ground of his belief derived from other sources (not being his personal knowledge), he must state the facts and circumstances forming the ground of his belief. Section 115(3) Evidence Act. ➔ A deponent shall not swear to an affidavit before his legal practitioner. ➔ A deponent shall not swear to an affidavit before a clerk of his legal practitioner. ➔ A deponent shall not swear to an affidavit before his partner. ➔ A defective or erroneous affidavit may be amended and re-sworn by leave of court, on terms as the court may deem reasonable. See section 114 Evidence Act. COUNTER AFFIDAVIT A party who intends to oppose an application is required to file a counter affidavit in opposition. Where a respondent fails to file a counter affidavit the facts deposed to in the affidavit are deemed true. MATO V HEMBER (2018) An effective rebuttal in a counter affidavit must be specific, clear and unambiguous. General denials in a counter affidavit will not be sufficient rebuttal of facts alleged in the affidavit of the adverse party. S KEREKE V EJIOFOR (1996) Where the respondent intends to rely on points of law alone, he needs not file a counter affidavit. BADEJO V. MINISTER OF EDUCATION (1996) FURTHER AFFIDAVIT 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. CONFLICTS IN AFFIDAVITS Where there is a conflict in affidavits of parties the court has a duty to resolve the differences by calling oral evidence. See FALOBI V. FALOBI Supra and section 116 Evidence Act PROPRIETY OF COUNSEL DEPOSING TO AN AFFIDAVIT Counsel must avoid the habit of deposing to an affidavit on behalf of client. In the event of conflicts he will be required to enter the witness box and be subjected to the rigours of cross examination. UKPABIO V. NIGERIAN FILMS & CENSORS BOARD (2008) WRITTEN ADDRESS  Under Abj and Lag rules, interlocutory application’s are to be supported by a written address -O43 R 1(2) Abuja and O 43 R1(20 Lagos. Contents of a written address See O 33 R 2& 3 Abuja and O 35 R 2 & 3(1) & (2) Lagos The claim upon which the application is based Brief statement of facts with references to exhibit(s) attached Issues for determination Legal arguments incorporating the authorities cited Conclusion containing numbered summary of points raised. List of cited authorities Certified true copies of unreported decisions SOME SPECIFIC INTERLOCUTORY APPLICATIONS Application for injunction Application for anton piller injunction Application for mareva injunction Interpleader proceedings Application An injunction is a court order commanding an action preventing or forbidding an action – OR for injunction 42 R8 L OR 42 R8 ABJ Injunctions could either be interim injunctions or interlocutory injunctions INTERIM INJUNCTIONS It is a temporary order of court granted to preserve the res until a named date or hearing of the motion on notice It is granted in urgent situation It is normally ex parte It has a short life span It last pending the determination of motion on notice. See KOTOYE V. CBN (1998) O 43 R1(2) Lag, O 43 R1(2) Abuja INTERLOCUTORY INJUCTION It is granted after both parties have been heard. It is to last during the pendency of the suit. It is through motion on notice. See KOTOYE V CBN Supra It is not granted in respect of a completed act. See OKAFOR V AG ANAMBRA (1992) Conditions for grant of interlocutory injunction Existence of legal or equitable right Existence of substantial issue to be tried Balance of convenience Irreparable damage or injury  Conduct of the parties( i.e. behaviors of the parties before and during the time of the application) Undertaking as to damages OBEYA MEMORIAL HOSPITAL V AG FEDERATION ( 1987) MANDATORY INJUNCTION It is an order compelling a party to do an act in some cases ( e.g. to forestall executive lawlessness). It is to compel a Respondent to retrace his steps and to restore the parties to the status quo ante bellum. See SULU GAMBARI V BUKOLA (2004) Anton piller It is an ex parte order permitting the applicant to enter into the respondent premises to seize, injunction detain and preserve goods or articles in possession of the respondent It is granted in case of infringement of copy right, trademark, patent See ANTON PILLER K,G V. MANUFACTURING PROCESSES LTD & ORS (1976) Principles guiding the grant of anton piller injunction The guiding principles was laid in FERDO LTD V UNIBRO STORES ( 1980) Fleet Street Report 489 as follows: The Applicant must show that there is an infringement against his trade marks, copy right, patent right or designs. The Applicant must show that the infringing property is in the possession of the Respondent. The Applicant must show that if an application is made on notice , the Respondent is likely to destroy or hide the property away. The Applicant must further show that his case would be seriously frustrated if the court refuses to make the order for Anton piller injunction against the Respondent. Mareva This is an order restraining a defendant from removing his assets within jurisdiction so as to injunction render a judgment nugatory. See MAREVA COMPANIA NAVIERA V INTERNATIONAL BULK CARRIER LTD (1975) Guiding principles for the grant of Mareva injunction The guiding principles are laid in SOTIMINU V OCEAN STEAMSHIP NIG LTD ( 1992) That he has a cause of action which is justifiable That there is real and imminent risk of the Defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the plaintiff may obtain That the applicant has made a full disclosure of all material facts relevant in the application That he has given full particulars of the Defendant’s assets within the jurisdiction That the balance of convenience is on the side of the applicant That he is prepared to make undertakings as to damages. interpleader People often find themselves in possession of property or money claimed by two or more persons. The person in possession becomes confused as to who is the right owner Delivery to one person may result to a suit against him by the other To avoid this the party in possession applies to court by way of interpleader to compel the claimants to interplead (take proceedings between themselves to determine who is entitled to the subject matter TYPES OF INTERPLEADER Sheriff interpleader.  Sheriffs interpleader : Where a sheriff carries out attachment pursuant to a judgment and a third party is laying claim to the property to be attached.It is applicable when the goods or chattel of a person who is not named in the writ of fi fa is attached. See KEY STONE BANK LTD V M &M LTD (2018) Stakeholder interpleader. 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 Procedure for interpleader By way of originating summons Where a suit is pending it will be by way of ordinary interlocutory summons O 47 R 2(1) and O 48 R 5 Abuja What the affidavit for an interpleader should contain 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 Time for bringing interpleader No time frame but it must be brought before the sale of the property attached ETHICAL ISSUES AND ABUSE OF EX-PARTE INJUNCTIONS The whole purpose is to ensure that the subject matter is not irreversibly altered before the motion on notice is heard. In recent past there had been cases of abuse and misuse of ex parte injunction. Ex parte injunctions are being abused by Judges and Lawyers. Examples of such abuse are: ➔ Where a court in one state refused to grant ex parte injunction and the applicant rushed to another state and filed a similar suit with an ex parte application for injunction without disclosing the previous application to the court. NATIONAL BANK OF NIG LTD V YINKA COMM. ENT. LTD ➔ A court granted ex parte order of interim injunction in favor of a Claimant. The defendant served. Counsel for the defendant went ahead to file a similar suit and obtained an ex parte order of injunction against the claimant on the same subject matter. PANAF INVESTMENT LTD V TEMPLE & GOLDERS LTD ➔ A case where a Judge adjourned the hearing of an ex parte application for interim injunction, for two weeks. After hearing, ruling adjourned for another one week. MORGAN AIRLINES LTD V TRANSNET LTD ➔ Where a ruling for ex parte application for interim injunction was adjourned sine die because the defendant who had notice that the judge had adjourned for ruling, filed a motion arresting the ruling. MORGAN AIRLINE V TRANSNET LTD. THE CODE OF CONDUCTS FOR JUDICIAL OFFICERS 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. ETHICAL ISSUES 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 supra 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 DRAFTING MOTION ON NOTICE + AFF + WA IN THE HIGH COURT OF LAGOS STATE IN THE IKEJA JUDICIAL DIVISION HOLDEN AT IKEJA SUIT NO: ………………………… BETWEEN: MR. JACK ETIM ……....... CLAIMANT/RESPONDENT AND TIJJANI BALA.................. DEFENDANT/APPLICANT MOTION ON NOTICE BROUGHT PURSUANT TO ORDER 43 RULE 1; ORDER 48 RULE 4 LAGOS STATE (CIVIL PROCEDURE) RULES, 2019; SECTION 36(1) CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AND UNDER THE INHERENT JURISDICTION OF THE COURT TAKE NOTICE that this Honourable Court shall be moved on the …….. day of ………… ,2024, at the hour of 9 O’clock in the forenoon or so soon thereafter as the Applicants’ Counsel on his behalf may be heard praying this Honourable Court for the following Orders: a) An Order extending the time within which the Defendant/Applicant may file his Memorandum of Appearance.  b) An Order deeming the Defendant/Applicant’s Memorandum of Appearance filed as separate process as duly filed and served. AND for such further Order or orders as this Honourable Court may deem fit to make in the circumstances. Dated this 5th day of March, 2024. _______________________ Ulan Kanu, Esq U. Kanu & Associates Defendant /Applicant’s Counsel №: 2 GRA, Ikeja Lagos State. Phones: 0803000000 Email: [email protected] FOR SERVICE THE CLAIMANT/RESPONDENT Tijjani Bala C/o His Counsel W. A. Izang, Esq. Amal Attorneys 6/7 Boundary Street, Ikeja, Lagos State. 08037600078 IN THE HIGH COURT OF LAGOS STATE IN THE IKEJA JUDICIAL DIVISION HOLDEN AT IKEJA SUIT NO: ………………………… BETWEEN: MR. JACK ETIM ……….. CLAIMANT/RESPONDENT AND TIJJANI BALA ………... DEFENDANT/APPLICANT AFFIDAVIT IN SUPPORT OF MOTION I, Tijjani Bala, Male, Muslim, Nigerian Citizen of No. 5, G.R.A. Ikeja, Lagos State, hereby make Oath and state as follows: 1. That I am the Applicant in this case by virtue of which position I am conversant with the facts of this case. 2. That the Respondent instituted this action with suit No…. on the 5th day, of December, 2023 before this Honorable Court. 3. That the Respondent served me with the Originating processes in this case on the 20 th day of December, 2023. 4. That I had 42 days (21st – day of December 2023 to 2nd February 2024) to file my Memorandum of Appearance. 5. That I had to urgently travel to Dubai for medical checkup and only came back last week. Attached to this Application is a photocopy of my Visa and Medical report marked as Exhibit A and B respectively. 6. That upon my return to Nigeria, I took the processes to my Lawyer and briefed him to handle this case. 7. That failure to file my memorandum of appearance within the prescribed time is not deliberate but due to the circumstance above mentioned. 8. That there is need for me to bring this application as leave of this Honourable Court is now required to enable me file my memorandum of appearance out of time. 9. That leave of this Honourable Court is now required to deem the Memorandum of appearance filed out of time as properly filed. 10. That the grant of this application will assist the Court in the just determination of the case. 11. That it will be in the interest of Justice to grant this application as the Respondent will not be prejudiced by its grant. 12. That I make this Oath conscientiously, knowing its content to be true and correct and according to the best of my knowledge and information in accordance with the Oaths Act 2004. …………….. DEPONENT Sworn to at the High Court Registry, Lagos, this………day of……………………2024. BEFORE ME COMMISSIONER FOR OATHS IN THE HIGH COURT OF LAGOS STATE IN THE IKEJA JUDICIAL DIVISION HOLDEN AT IKEJA SUIT NO: ………………………… BETWEEN: MR. JACK ETIM …….. CLAIMANT/RESPONDENT AND TIJJANI BALA ……… DEFENDANT/APPLICANT WRITTEN ADDRESS IN SUPPORT OF MOTION  1.0 INTRODUCTION This is a Motion on Notice brought pursuant to Order 43 Rule 1; ORDER 48 RULE 4 of the Lagos State Civil Procedure Rules 2019; Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 praying this Honourable Court for the following reliefs: a) An Order extending the time within which the Defendant/Applicant may file his Memorandum of Appearance. b) An Order deeming the Defendant/Applicant’s Memorandum of Appearance filed as separate process as duly filed and served. AND for such further Order or orders as this Honourable Court may deem fit to make in the circumstances. The Motion on Notice is supported by a 12 paragraphs affidavit. We rely on all the paragraphs of the affidavit. 2.0 BRIEF STATEMENT OF FACTS 3.0 ISSUE FOR THE DETERMINATION Whether this Honourable Court can grant this Application as prayed. 4.0 ARGUMENT IN SUPPORT We submit that this Honourable Court in the circumstance has the power to grant the prayers sought, ought to grant prayers 1 and 2 accordingly. Especially, having regard to the fact that same would enable this Honourable Court to determine this case on its merit. We submit that the Applicant has through his affidavit given sufficient reason to warrant the grant of this application. It is settled law that were there is an application for extension of time, the court ought to lean in favour of the applicant by granting same in the interest of justice. By the provision of Order 48 Rule 4 of the Rules of the Lagos Sate High Court Civil Procedure Rule, the Judge may, as often as he deems fit, and either before or after the expiration of the time appointed by the Rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceeding: Order 48 Rule 4:The Judge may, as often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceeding: Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules, shall pay to the Court a fee of N1000.00 (One Thousand Naira) for each day of such default at the time of compliance. We refer this Honourable Court to the case of Ika Local Govt. Area v. Mba (2007) 12 NWLR (Pt. 1049) 676 at 702, paras. E-F, where the Court in granting an application of a similar nature held thus: “Order 22 Rule 3(1) and (2) of the High Court of Akwa Ibom State (Civil Procedure) Rules is designed to promote and ensure fair hearing in a suit. It is made to give  access to a party in a suit to do something the party could not do within a stipulated time, to enable him to be heard by a trial court. The rule is in line with the principle of fair hearing.” This application seeks the exercise of the discretion of the court. This power is always required to be exercised judicially and judiciously, in a manner that would lean towards accommodating the interest of the parties, and a just determination of the case on the merits. See the case of Ogundoyin v. Adeyemi (2001) 13 NWLR (Part 730) 403 at 419- 420, paras D-C. This calls for the exercise of a judicial discretion which must be grounded on fairness. See the case of Onwuka v. Owolewa (2001) 7 NWLR (Part 713)695 at 713 paras. G-H and Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. It is clear from this application that it is safe and harmless to grant it, since the interest of the other party in this case would not be jeopardized in any way. CONCLUSION We pray this Honourable Court to grant this application as it will not prejudice the Respondent in any way. Dated this 5th day of March, 2024 _______________________ Ulan Kanu, Esq U. Kanu & Associates Defendant /Applicant’s Counsel №: 2 GRA, Ikeja Lagos State. Phones: 0803000000 Email: [email protected] FOR SERVICE THE CLAIMANT/RESPONDENT Tijjani Bala C/o His Counsel W. A. Izang, Esq. Amal Attorneys Ikeja, Lagos State. 08037600078