Briefly Understanding Interlocutory Applications By Sobechi Obasi

Court proceedings comprise a range of legal activities, and hearings, including trials, court-sponsored alternative dispute resolution programs, ceremonies, and other programs or activities regulated by the court.[1] They are intricate and commonly include diversions such as applications for procedural matters such as interlocutory applications. Interlocutory applications are usually used during judicial proceedings to seek interim relief or handle other procedural matters. Generally, interlocutory applications are those applications made during the progression of ongoing court proceedings, they may be made at any stage of an action.

Interlocutory applications can be described as an umbrella for a large range of orders, such as immediate assistance from the court or orders about the ongoing procedure in court. Court orders are declarations made by a Judge, commanding an action to be taken, or prohibiting certain activity which is already occurring or could occur. It is relevant to note that orders made by the court are to be obeyed to maintain the integrity of the court and avoid anarchy. Interlocutory applications include applications for an injunction during the pendency of a suit, applications for extension of time, amendment of processes, for striking out, for substituted service, and obtaining or inspection evidence.[2] These applications cut across a range of legal proceedings consisting of civil and criminal cases.

The main benefit of these legal applications is to aid the involved parties in pursuing their cases while also ensuring the fast resolution of matters.

Generally, interlocutory applications are often required to be in writing by way of motion unless there is a statute or rule that applies in any particular case that contradicts the general rule.[3] Therefore, oral motions may be made to the court in the presence of the other party, however, the court may refuse to grant such a motion until the requirement of writing is fulfilled. This application must be filed before the commencement of an action will be incompetent. It is the proper procedure in court for a Plaintiff to submit an application with an originating process and serve both on any Defendant at the same time. When the plaintiff feels that they need to get a court order, they typically get a serving of an interlocutory motion along with a writ of summons or before the defendant’s appearance in court. For instance, in action for damages for trespass, the Plaintiff may see the importance of restraining continuing trespass.[4] As earlier enunciated, interlocutory applications are required to be in writing by way of motions and every motion must be accompanied by an affidavit in support of it. This affidavit contains the facts which the Applicant intends to rely upon and is not allowed to rely on facts not deposed to in the affidavit. Furthermore, the Respondent is required to file a counter-affidavit to the effect. This counter-affidavit shall be in opposition to the facts deposed to in the supporting affidavit and shall be deemed to admit any fact that is not denied. The Respondent may not file a counter-affidavit if the affidavit of the Applicant is self-contradictory or the facts deposed therein are not sufficient to sustain the prayers sought.[5]

Interlocutory applications are not granted without certain requirements that must be met. The party making an interlocutory application must prove that they would suffer substantially if the application is not granted and must prove also that there is an actionable wrong and an infringement of a constitutional right. The Applicant for an interlocutory injunction must show that his legal right is threatened or abused. This may arise by a threat to or brutalization of the res which may result in damage or abuse of it.[6] For instance, in the case of land or real estate property, threatened trespass is enough proof of an infringement of a constitutional right. Whether an Applicant has met the requirement of proving an actionable wrong and an infringement of a constitutional wrong is left to the discretion of the court in the granting or not of the application. An interlocutory injunction is typically granted by the court when the plaintiff can demonstrate that a significant issue has to be resolved. As a result, the claim ought to have a chance of being successful and not be pointless or annoying. Furthermore, granting the injunction must be the more sensible course of action. The court will consider all pertinent case circumstances, such as the significance of maintaining the current status and the relative strength of the parties’ respective cases, in establishing where the balance of convenience falls.[7] As a general rule, the court is obligated to decide every application before it before proceeding to decide upon the substantive matter with finality as the outcome of such applications may tilt the balance of the substantive action in one direction or the other.[8]

Conclusively, the result of civil procedure must be justice; however, the achievement of justice may be dragged out, and it might be susceptible to interruptions or seemingly unattainable due to lengthy trial periods. Therefore, no justice is done when a party continues to suffer injury after coming to the courts for a remedy. Interlocutory applications provide temporary relief to ease the injury and damage a party might suffer during the waiting period before a final judgment is declared by the court. Moreover, it maintains the focus of the court by bringing to light relevant information that the court may rely on in reaching its final decision further minimizing interruptions to the trial process. It gives all the parties to a suit the opportunity to protect their rights. All these factors ultimately ensure fairness in civil procedure.

Sobechi Obasi is a first class Law graduate of Bowen University Nigeria, and writes from Abuja

[1] “What is a Court Proceeding” (United States Bankruptcy Court, Northern District of California) available at <https://www.canb.uscourts.gov/content/what-court-proceeding> Accessed 9 November 2024.

[2] D. I. Efevwerhan, Principles of Civil Procedure in Nigeria (3rd edn. Enugu, Snaap Press Ltd., 2020) page 336.

[3] Coker v Coker [1956] 1 F.S.CM 16.

[4] Ernest Ojukwu and Chudi N. Ojukwu, Introduction to Civil Procedure (3rd Ed. Abuja, Helen-Roberts Limited, 2009) page 210.

[5] Efevwerhan, (n 2) page 347.

[6] Ezebilo v Chinwuba [1997] 7 NWLR (pt. 511) 108.

[7] Community Legal Information Centre, available at <https://www.clic.org.hk/en/topics/civilCase/commencement_of_trial/q1/abuse_of_process> Accessed 9 November 2024.

[8] E. Ojukwu and C. Ojukwu, (n 4) page 210.