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An ex-parte order is an interim order of a court issued by a court without notice to the other party to the suit. It is essentially an order made by a court without hearing from the other party to the suit. In the native legal parlance, it’s an order made without fair hearing. Every student of law knows as a matter of fact and law that a court has no jurisdiction to make any order that affects the interest of an adverse party negatively without hearing from him because this will infringe on his fundamental human right of fair hearing, whether it is a civil wrong or a criminal offence, and as such is void. Please see section 36(1)(4)(5) of the 1999 Constitution.
It’s to guard against the issuance of an ex-parte order against the interest of a party that has not been heard that the Supreme Court of Nigeria and subsequent Chief Justices of Nigeria warned stringently against the flagrant abuse of ex-parte orders by Judges to condemn persons and affect their rights unheard. Some Judges have faced disciplinary measures for such abuse, while the Supreme Court has variously described such act as judicial rascality. The Apex Court and the Chief Justices have consistently maintained that ex-parte orders must be used sparingly and can only be granted, in cases of real urgency, and to prevent irreparable damage of a grave nature against a claimant or applicant before the court has time to hear from the other party. So ex-parte order is meant to be a shield to protect a claimant from danger and damage, not a sword to deny or infringe on a person’s fundamental human right or kill or punish a person unheard. In Enekwe v. I. M. B. Ltd (2006) 19 NWLR (PT. 1013) 146 at 182, the Supreme Court concluded that while the making of ex-parte injunction is not unconstitutional, “the order must be made sparingly and only where the circumstances are urgent and compelling such as to leave the court with no other alternative in preventing an anticipated injury of a grave nature”.
It is in deference to this time tested principle that the respected Jurist, Justice Inyang Ekwo, of the Federal High Court, refused to grant an ex-parte order stopping INEC from concluding its gubernatorial election in Adamawa State based on ex-parte motion brought by Senator Binani before it. Binani claimed that she was the rightful winner of the Adamawa State gubernatorial election based on the illegal declaration of the election by an INEC official who didn’t have the power by law to do it. The learned trial Judge cleverly declined to grant the ex-parte order, but intelligently asked the Counsel of Binani to address the court on the issue of jurisdiction. On the adjourned date, the Counsel of Binani, having no defence to the issue of jurisdiction, chose to withdraw the suit, and the Judge consequently dismissed the suit. By that action, the learned Judge saved the country from avoidable crises that would have occurred in Adamawa State if he allowed Binani to use the instrumentality of an ex-parte order from him as a sword to prevent INEC from doing its legitimate duty in Adamawa State.
Contrast this with the ex-parte order issued by Justice H. Mu’azu of the High Court of the Federal Capital Territory, Suit No: FCT/HC/CV/2930/2023; Motion No: FCT/HC/M/7082/2023, where the judge ordered that the National Chairman, National Secretary, National Treasurer and National Organising Secretary, should stop parading themselves as officers of the Labour Party for no reason stated on the face of the ex-parte order. Nobody can deduce any act done by the defendants on reading the ex-parte order made by the Judge. However, since the judge mentioned the Originating Summons of the Claimants, it’s important to analyse the 3-paragraph Originating Summons filed by the Claimants. We must note that this is not an attempt to comment on a case pending in a court but an honest critique of a decision of a court of which an ex-parte order is part of. Suspending someone from carrying out his lawful duties is clearly a punishment of an innocent man and Section 36(5) is totally against it.
The first paragraph of the Originating Summons states thus: “Whether by the suspension of the 1st Defendant by the communique dated 31st March, 2023 by the 1st-7th Claimants as the Ward Executive Council of Ward 03, Arue, Essan North East Local Government Area of Edo State Chapter of the 5th Defendant ( Labour Party) pursuant to Article 13(10)(B)(ii)(iii) & (vi) and Article 19(1), B(1)(2) & (5) and 19 (2)(A), (B)(2)(3) of the Labour Party Constitution 2009, the 1st Defendant is not meant to step aside as the National Chairman of the 5th Defendant with immediate effect.
The other two paragraphs were talking about an information from the police of the allegation of forgery, perjury and criminal conspiracy against the National Chairman, National Secretary, National Treasurer and National Organising Secretary of Labour Party. It is important to note that the Police did not hear from the officers of the Labour Party before giving out the so-called information to one Abayomi Arabambi, who was neither the informant at the police station nor one of the ward executives of Arue, Essan North East Local Government Area, but who requested for the information for his sinister purpose, against the express warning of the police in paragraph 5 of the document by the police titled, “RE: APPLICATION FOR CERTIFIED TRUE COPIES OF POLICE INVESTIGATION REPORT; RE: ALLEGED CASE OF FORGERY, PERJURY AND CRIMINAL CONSPIRACY.” Note that the allegations were made by one Eze Okoh, who is not a Claimant in this suit. Hear the police in paragraph 5 of the report, “NOTE: That this report is issued purely for information purposes. The Nigeria Police shall not be held liable for any action whatsoever which may emanate from the use of this document”. It is strange and incomprehensible to understand why a Judge can rely on a document which even the maker, the police, could not rely on, and even exculpated themselves from liability, to issue an ex-parte order to condemn and punish innocent citizens.
As can be deduced from the first paragraph of the Originating Summons of the Claimants before Justice Mu’azu, the Originating Summons was based on the purported suspension by the purported Arue, Essan ward executives in Edo State. As regards this issue, the Supreme Court is very clear that it’s only the court located in the territory where the cause of action arose that has the jurisdiction to entertain the matter. Hear the Supreme Court, in the case of Sulaiman v. A. P. C. (2023) 5 NWLR (PT. 1877) 211 at 256 Paras B-D, “The position of the law is trite that the jurisdiction of courts to entertain a matter is fundamental. It is so crucial that if a court has no competence to hear and determine a case, the entire proceedings are a nullity ab initio no matter how well conducted and decided. In the instant case, having found that the learned trial court wrongly assumed jurisdiction over a matter which cause of action arose in far away Kano State, the resultant effect is that the suit deserves to be struck out”. As stated earlier, the cause of action in the Labour Party’s case arose in Edo State and consequentially, the High Court of the FCT has no jurisdiction to entertain the suit and should have struck it out. Ironically, it’s J. Muazu that presided over the Sulaiman’s suit at the High Court of the FCT which the Supreme Court overruled. One is therefore shocked that J Mu’azu will again assume jurisdiction in a suit that happened in Edo which he knows that he doesn’t have jurisdiction to entertain it.
Another issue decided by the Supreme Court in the Sulaiman’s suit is that a party cannot use Originating Summons to commence a suit that involves allegations of crime. Originating Summons is an expedited mode of hearing where the plaintiff merely seeks a declaration of his rights. The Supreme Court in page 257 paras B-D states “An action would be improperly commenced by originating summons where facts are hostile and cannot be resolved on affidavit evidence only. In the instant case, allegations of forgery and procurement of fake congress report were made. By virtue of section 135(1) of the Evidence Act, 2011 the standard of proof of such allegation is proof beyond reasonable doubt which would certainly require plenary trial. The mere fact that the authenticity of a document filed as an exhibit was in contention was sufficient reason to commence the action by a writ of summons or at best the court ought to have called for oral evidence to clarify the disputes in the affidavits”. The Apex Court concluded that the trial court was wrong to have assumed jurisdiction and decided the matter as it did. (Pages 288-289, paras C-A). The SC also held that courts have no jurisdiction to interfere in the internal affairs of a political party especially as it concerns the issue of their leadership. Hear the SC, “No court of law has jurisdiction to adjudicate on how a political party conducts its affairs and its leadership or on how it chooses its leaders because such issues are purely the internal affair of the political party”. (Page 284, paras. A-B).
The totality of these facts and laws above show that the High Court of the FCT lacks the jurisdiction on all fronts to issue an ex-parte order to decapitate the leadership of a political party based on an action commenced in another jurisdiction, and based on Originating Summons, not seeking for the declaration of the rights of the claimants, but erroneously seeking for the indictment of the defendants, on allegations of crimes, in a civil proceeding. J Mu’azu ought to have known better because Mu’azu presided over the Sulaiman’s case which the SC quashed and declared that he didn’t have jurisdiction to try the case.
