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Introduction
Ex parte orders are urgent interim judicial interventions granted in the absence of the adverse party, usually to prevent irreparable harm or preserve the subject-matter of suit pending the hearing of the adverse party in a motion on notice1. Where properly applied, ex parte orders serve the ends of justice. However, where they are not properly granted, they erode both substantive and procedural fairness, and risk converting judicial process into an instrument of oppression.
In recent years, Nigeria has witnessed a troubling misuse of ex parte orders or applications. For instance, ex parte orders intended to last for a short period are routinely stretched beyond their permissible lifespan and interim reliefs are granted in sweeping terms that effectively appear to determine substantive rights. Also, litigants increasingly deploy ex parte proceedings as strategic weapons to harass opponents, freeze assets indefinitely, or secure commercial advantage without affording the other party an opportunity to be heard. Although the trend has drawn repeated condemnations from appellate courts2 including the National Judicial Council, yet the abuse persists, suggesting a structural rather than incidental problem.
At the heart of this challenge lies the tension between urgency and fairness. While Nigerian courts have consistently affirmed that ex parte orders are not meant to confer permanent or irreversible rights3, trial courts often face intense pressure to act swiftly in high-stakes disputes. This means that sometimes, strict procedural safeguards governing ex parte relief are sometimes relaxed, with adverse consequences for the integrity of the judicial process and public confidence in the courts.
This article argues that the abuse of ex parte orders in Nigerian litigation has reached a point that demands stricter judicial control, through firmer trial-court discipline and clearer procedural limits. It examines the legal foundations of ex parte jurisdiction, the forms and patterns of abuse observable in Nigerian practice. Ultimately, it contends that restoring the character of ex parte relief is essential to safeguarding fair hearing and reinforcing the credibility of the Nigerian judiciary.
Ex Parte Orders: Legal Basis and Legitimate Use
Ex parte orders derive their legal foundation from both constitutional principles and procedural rules governing civil litigation in Nigeria. Although the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees the right to fair hearing under section 36, Nigerian courts have consistently held that this right is not absolute in its application especially at interlocutory stage of proceedings. In exceptional circumstances, the courts may act without hearing the other party, provided such action is strictly temporary, justified by law and urgency, and followed promptly by an opportunity for the affected party to be heard. The objective is to prevent irreparable damage that may result if the other party is to be heard before the order is made.
Procedurally, the power to make, and the process for the grant of, ex parte reliefs are embedded in the various laws establishing courts and civil procedure rules of the courts.4 These rules typically permit ex parte applications where there is a real likelihood that delay in hearing a motion on notice would defeat the purpose of the application and lead to irreparable loss. The reliefs contemplated are inherently interim in nature aimed at preserving the status quo, preventing irreparable damage, or maintaining the res pending the hearing of a motion on notice. The applicant is, therefore, under a duty to place before the court all material facts, including those adverse to its case, and to demonstrate genuine urgency.
Nigerian appellate courts have repeatedly emphasised that ex parte orders are granted in cases of real emergency, not as a matter of convenience or tactical advantage. In the locus classicus of Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419, the Supreme Court made a clear distinction between an interim order made ex parte and an interlocutory injunction granted on notice, stressing that ex parte orders are intended to last for a very short time usually only until all the parties involved (the motion on notice) can be heard. The Court warned that any order which, in substance, determines the rights of parties without hearing the adverse party offends the principles of natural justice5.
Therefore, a legitimate ex parte order must satisfy a number of cumulative conditions. First, there must be demonstrable urgency, supported by credible affidavit evidence showing that irreparable harm would occur if the court should wait to hear the other side. Second, the order must be strictly time bound, lasting only until a specified date or until the motion on notice is heard6. Third, the relief granted must be preservatory, not determinative; it should maintain the status quo rather than alter it or confer a substantive advantage on the applicant. Furthermore, the applicant is required to give a satisfactory undertaking as to damages. In addition, the applicant must demonstrate the existence of a legal right capable of protection, the presence of a serious question or triable issue, and that the balance of convenience tilts in favour of preserving the status quo pending determination. Failure by a trial court to extract such an undertaking ordinarily renders the order liable to be discharged7.
The duty of full and frank disclosure is also central to the legitimate use of ex parte applications. In Gallaher Ltd. v. B.A.T. (Nig.) Limited (2015) 13 NWLR (Pt. 1476) 325, the Court of Appeal held that an applicant who suppresses material facts or misleads the court in an ex parte application is not entitled to equitable relief, and any order obtained in such circumstances is liable to be set aside. This underscores the equitable nature of ex parte relief and the heightened responsibility placed on parties, their counsel and the court.
Patterns and Instances of Abuse in the Grant of Ex parte Orders
Despite the clear legal limits governing ex parte jurisdiction, practice before Nigeria's superior courts of record reveals recurring patterns of abuse. These abuses are not isolated procedural lapses, but they reflect systemic tendencies in the way ex parte reliefs are sought, granted, and sustained in contentious litigation, particularly in high-value commercial, political, and regulatory disputes.
One of the most prevalent patterns of abuse is the seeming conversion of ex parte orders into de facto interlocutory or even final reliefs. Orders granted to last a few days are routinely allowed to subsist for weeks or months, sometimes effectively resolving the substantive dispute before the adverse party is heard. An ex parte order is not intended to have a long life and should never be used to determine rights in controversy8. In Kotoye v. CBN (supra), the Supreme Court admonished courts to ensure that such orders should last for "not more than a few days ...".
There is a growing trend of using ex parte orders as instruments of coercion or commercial leverage, particularly in banking, insolvency, and corporate dispute.9 In commercial disputes, parties obtain ex parte injunctions to freeze bank accounts, restrain government agencies, or block share transfers and board changes often without credible urgency or disclosure of material facts. The abuse is most evident in cases where such orders are used to paralyze legitimate business operations, interfere with commercial financing, or influence regulatory processes.
Courts have repeatedly condemned this misuse. In GTB v. Adedamola10, the Court of Appeal held that freezing a person's bank account without a fair hearing or valid court order violates constitutional due process. Similarly, in GTB v. Odeyemi Oluyinka11, the Court warned that financial institutions must not "be complacent or toothless in the face of brazen violations of customers' rights12." Such precedents highlight how ex parte reliefs, when indiscriminately granted or exploited, can distort commercial justice and erode investors' confidence.
Another disturbing pattern is forum shopping and strategic filing of ex parte applications. Litigants frequently approach courts perceived to be more amenable to granting urgent relief, sometimes filing multiple suits in different judicial divisions to secure a favourable ex parte order before the respondent becomes aware of the dispute. This practice undermines judicial comity and clogs the system with parallel proceedings.
A further instance of abuse lies in the failure to ensure accelerated hearing of the motion on notice (inter partes hearing). Ex parte motions are in principle filed alongside motions on notice, yet trial courts sometimes grant the ex parte orders and adjourn the motion on notice for extended periods, allowing the interim order to remain operative. This practice was strongly deprecated in Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423. In this case, the Apex Court in Nigeria emphasised that courts must not permit interim or ex parte orders to subvert the constitutional right to fair hearing by delay or procedural inertia.
Taken together, these patterns reveal that the abuse of ex parte orders in Nigeria is not merely a matter of individual excess but a broader procedural challenge. The persistence of these practices underscores the urgency of stricter judicial control and more disciplined adherence to the exceptional nature of ex parte relief.
Judicial and Stakeholders' Responses
There is growing judicial awareness and caution against indiscriminate granting of ex parte orders. Appellate courts have emphasized that such orders are inherently temporary and should be granted only where there is an urgent need to prevent irreparable harm. Trial judges are increasingly urged to exercise restraint, ensure full disclosure of material facts, and strictly apply the standards for urgency and irreparability13. Courts remain vigilant about applications accompanied by misrepresentations, which could lead to the vacation of such orders or sanctions against the applicant.
The case of Kotoye v. CBN14 remains foundational, establishing that ex parte orders are temporary and should only be granted under special circumstances to avoid violating fair hearing principles. The decision stresses that any decision made without hearing all parties is null and void because it breaches fair hearing15.
The National Judicial Council ("NJC") has sanctioned several judges who indiscriminately granted ex parte orders without sufficient cause. The sanctions that have been applied by NJC include restriction from elevation for two years16. exemplified by the Rivers State case involving Justice Okogbule Gbasam where the NJC restricted his elevation for two years due to recklessness in granting ex parte relief lacking urgency.
Human rights lawyers and activists have called for increased sanctions against judges at even appellate levels who uphold or issue ex parte orders alleged to be abused for political or oppressive ends, emphasizing that no judicial officer is above the law17.
There have been public calls for the NJC to establish strict standards and sanctions to curb the misuse of ex parte orders, especially in politically sensitive cases, and to implement regular audits of such orders issued by judges to detect and rectify abuse early18.
A recent High Court case - Mbaka Mina Ngozi v. Chief Emmanuel Mbaka & Ors19 reiterated that grounds for discharging an ex parte order are exhaustive and must be firmly established to prevent frivolous challenges that undermine judicial authority.
These judicial and relevant stakeholders' responses reflect a growing recognition within Nigeria's judiciary of the potential for abuse of ex parte orders and the need for checks, due diligence, and sanctions to uphold justice, fairness, and the reputation of the judiciary.
Mechanisms to Prevent Abuse
What is required is a combination of procedural discipline and judicial assertiveness, aimed at restoring ex parte relief to its urgent, exceptional and temporary character. Notably, many of the mechanisms required already exist within texts of Nigerian law, and the challenge lies in their consistent and rigorous enforcement.
A primary control mechanism is the strict enforcement of time limits for ex parte orders. Most High Court Rules either expressly limit the lifespan of ex parte orders or imply their short duration by requiring prompt hearing of motions on notice. Courts must insist that every ex parte order be expressly time-bound, automatically expiring on a fixed date or upon the hearing of the motion on notice, whichever comes first. The Supreme Court's admonition in Kotoye v. CBN that an ex parte order should not "have a long life" must be treated as a binding procedural command rather than a discretionary guideline.
Closely connected is the need for mandatory accelerated hearing of motions on notice following the grant of the motion ex parte. Once an ex parte order is granted, the court should treat the accompanying motion on notice as priority business, ensuring it is heard at the earliest possible opportunity. In Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, the Supreme Court made it clear that courts must not, by delay or adjournment, allow interim orders to defeat the constitutional right to fair hearing. Trial courts should therefore resist adjournments sought by the applicant and place the burden on the party enjoying the ex parte relief to ensure prompt progression of the substantive interlocutory application. Delays or adjournments should not prevent automatic expiration of ex parte orders.
Another critical mechanism is heightened scrutiny of affidavit evidence in ex parte applications. Given the absence of the adverse party, judges should continue to interrogate claims of urgency with particular care. Bare assertions of irreparable harm should not suffice; applicants must demonstrate, with credible facts, that delay would render the eventual decision nugatory. Where urgency is self created such as delay in approaching the court, ex parte relief should be refused. This approach aligns with the equitable principle that a party seeking urgent relief must come with clean hands.
The duty of full and frank disclosure should continue to be seriously enforced more robustly, not merely acknowledged in principle. Courts should be willing to discharge ex parte orders suo motu once material non-disclosure is discovered, even without a formal application by the respondent.
Additionally, courts should make greater use of undertakings as to damages and, where appropriate, security for costs as conditions for granting ex parte orders. These measures help deter frivolous or tactical applications by ensuring that applicants bear the risk of any harm caused by unjustified grant of interim relief.
Institutionally, there is also a role for procedural sanctions against counsel who habitually abuse ex parte processes. Courts possess inherent powers to discourage misconduct, including cost sanctions and, in extreme cases, reporting professional misconduct to disciplinary bodies. While such measures must be exercised cautiously, their judicious use can reinforce professional responsibility and discourage the strategic misuse of urgent applications.
Finally, judicial training and practice directions can play a significant preventive role. Regular continuing judicial education on interim reliefs, coupled with clear-cut practice directions on the scope and duration of ex parte orders, would promote consistency across judicial divisions.
Therefore, preventing the abuse of ex parte orders does not require radical legal innovation but stricter judicial control over existing mechanisms. By enforcing time limits, scrutinising urgency, penalising non-disclosure, and prioritising fair hearing, Nigerian courts can recalibrate the balance between necessary interim intervention and the fundamental demands of procedural justice.
Practical Guidance for Litigators
For litigators, ex parte applications present both opportunity and risk. While they can offer swift protective relief in genuinely urgent situations, they are also among the most closely scrutinised procedural devices in litigation. An ex parte order should be sought only where there is compelling and credible evidence of imminent and irreparable harm that ought to be legally averted. Courts have increasingly cautioned that urgency must be real and demonstrable, not speculative or self-created by delay.
Transparency is paramount. Given that the court hears only one side, applicants must fully and truthfully disclose all material facts, including facts adverse to their case. Any misrepresentation or failure to disclose crucial information risks the immediate nullification of the order and may expose counsel to reputational and professional consequences.
Opposing parties, upon encountering an ex parte order, should particularly when granted inappropriately, act swiftly to seek its variation, discharge, or setting aside, by invoking the court's power to prevent injustice and safeguard the right to fair hearing. Delay in responding to oppressive interim orders may entrench their effects, particularly where the relief granted is broad or commercially disruptive.
Practitioners must also recognise that ex parte orders are inherently temporary. Consequently, preparing expeditiously for the scheduled return hearing and actively facilitating the hearing of the motion on notice is essential. Courts are increasingly unwilling to tolerate repeated adjournments that allow interim orders to subsist beyond their legitimate lifespan.
Litigators who adopt and align with these standards will be better equipped to advocate effectively for their clients while preserving judicial credibility and the overall legitimacy of the litigation process.
Conclusion
The misuse of ex parte orders in Nigerian litigation undermines their limited and exceptional purpose. A stricter judicial approach is imperative. Courts must rigorously test claims of urgency, insist on full and frank disclosure, confine reliefs to narrow and time-bound measures, and promptly set aside orders obtained through abuse. Legal practitioners bear a heightened duty of candour and restraint when invoking ex parte jurisdiction. Firmer judicial control should be put in place to maintain the delicate balance between the need for urgent interim relief and the constitutional guarantee of a fair hearing.
Footnotes
1 Onuzulike v. Nwokedi (1989)
2 NWLR (Pt. 102) 229. 27Up Bottling Co. v. Abiola Sons Ltd. (1989) 4 NWLR (Pt. 114) 229.
3 Enekwe v. I.M.B Ltd. (1997) 10 NWLR (Pt. 526) 601.
4 Order 43, Lagos State High Court (Civil Procedure) Rules 2019; order 30, High Court of the FCT Rules 2025.
5 Abba v. Haruna (2023) 10 NWLR (Pt. 1892) 351 SC; Abiola v. Fed. Rep. of Nigeria (1991) 3 NWLR (Pt. 382) 203 CA.
6 Order 43 Lagos State High Court (Civil Procedure) Rules 2019; Order 30 High Court of the FCT Rules 2025; Order 26 Federal High Court (Civil Procedure) Rules 2019.
7 Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 at 450, 456, 474 (Per Nnaemeka-Agu, J.S.C.; Per Nnamani, J.S.C.; Per Agbaje, J.S.C.).
8 See Kotoye v. CBN (supra).
9 https://www.vanguardngr.com/2025/05/stop-weaponising-exparte-orders-lawyer-tells-judges/.
10 (2019) 5 NWLR (Pt. 1664) 30 accessed on October 12, 2025, at 15:43 pm.
11 (2021) LPELR-53173(CA).
12 https://lawandsocietymagazine.com/the-illegality-of-freezing-accounts-of-citizens-with-out-fair-hearing/?utm_source accessed on October 12, 2025 at 15:43 pm.
13 Unibiz (Nig.) Ltd. v. C.B.C.L. Ltd. (2003) 6 NWLR (Pt. 816) 402 SC
14 (1989) 1 NWLR (Pt. 98) 419 at 450.
15 Engr. Aliyu Ahmed Nahuce -v.- The Honourable Minister, Federal Capital Territory & 4 Ors- National Industrial Court of Nigeria Unreported Suit No: NICN/ABJ/390/2019 accessed on October 12, 2025 at 15:43 pm.
16 exemplified by the Rivers State case involving Justice Okogbule Gbasam where the NJC restricted his elevation
for two years due to recklessness in granting ex parte relief lacking urgency (Taming the menace of ex-parte
orders - The Nation Newspaper)) accessed on October 12, 2025 at 16:30pm>
17 https://www.vanguardngr.com/2025/05/stop-weaponising-exparte-orders-lawyer-tells-judges/ accessed on October 12, 2025, at 16:33 pm.
18 Senate president tells NJC to punish severely judges abusing ex parte orders accessed on October 12, 2025 at 16:34pm.
19 Mbaka Mina Ngozi v. Chief Emmanuel Mbaka et al. (Suit No: FCT/HC/CV/203/2022); accessed on October 12, 2025 at 16:38 pm.
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