What ex parte means
Ex parte means one side only.
The fundamental principle of a fair hearing is that both parties are heard before an order is made against either. An ex parte application is an exception to that, and it is allowed only where the delay involved in giving notice would defeat the purpose of the application.
The classic case is urgency combined with risk. Assets that will be moved the moment the respondent learns of the claim. Property that will be sold. Evidence that will be destroyed. Land that will be built on overnight.
Because the other side is absent, the court is hearing only one version. That produces the safeguard which defines ex parte practice: the applicant owes a duty of full and frank disclosure. They must put before the court everything material, including the facts and arguments the respondent would have raised.
An order obtained without that disclosure is liable to be set aside on that ground alone, regardless of the merits.
How it is used
The application is supported by an affidavit setting out the facts, the urgency, and why notice cannot be given.
If granted, the order is interim and short. Nigerian High Court rules generally limit an ex parte order to a defined period, commonly a matter of days, extendable once, after which it lapses unless the matter has come back before the court with both sides present.
That structure is deliberate. The ex parte order holds the position; the inter partes hearing decides it.
The applicant is also normally required to give an undertaking as to damages, promising to compensate the respondent if the order turns out to have been wrongly obtained. That is a real exposure and it should be weighed before applying.
For a respondent served with an ex parte order, the response is to apply promptly to discharge it. The grounds are that the order should not have been made on the merits, that there was material non disclosure, or that the urgency was manufactured. Non disclosure is often the strongest ground, because it does not require the respondent to win the underlying argument.
Key features
- An application heard without notice to the other party
- Available only where notice would defeat the purpose
- The applicant owes a duty of full and frank disclosure
- Orders are interim and last for a short defined period
- An undertaking as to damages is normally required
- Material non disclosure is a ground to discharge the order
How this works in Nigeria
Ex parte orders have a difficult history in Nigerian practice, and the rules reflect an attempt to control their misuse.
The problem was orders obtained on incomplete facts that then operated for long periods, effectively deciding disputes without the other side being heard. Company disputes, land matters and political cases produced particularly contentious examples.
The response was procedural. High Court rules limit the duration of ex parte orders and require the matter to return inter partes quickly, and appellate courts have been consistent that an order obtained by material non disclosure will be discharged.
For an applicant, the practical discipline is uncomfortable but essential: put the respondent's best points in your own affidavit. An applicant who conceals a weakness gains an order for a few days and loses it, along with credibility, at the return date.
For a respondent, the sequence on being served is to obtain the application papers immediately, identify what was not disclosed, and file to discharge without delay. Complying under protest while preparing the application is usually wiser than ignoring an order, because breach is contempt regardless of how the order was obtained.
And for anybody considering an application, the undertaking as to damages is a genuine liability. Where the order restrains a business and the claim later fails, the applicant can be required to compensate for the disruption.
Ex parte vs inter partes vs notice of motion
Three ways an application reaches a Nigerian court, differing in who is heard.
An ex parte application is heard with only the applicant present. It is exceptional, justified by urgency, and it produces an interim order of short duration with a duty of full disclosure attached.
An inter partes hearing has both sides present. Papers are served, the respondent files a counter affidavit, and the court decides having heard both. This is the norm and it is where an ex parte order is either continued or discharged.
A motion on notice is the ordinary vehicle for an application within proceedings. It is served, the respondent responds, and it is heard inter partes.
A well run urgent application often uses two: an ex parte order to hold the position for a few days, filed together with a motion on notice returnable at the same time, so the inter partes hearing follows immediately.
Limits and risks
Ex parte relief is temporary by design, so it holds a position rather than resolving anything.
The disclosure duty is onerous, and an applicant who gets it wrong loses both the order and credibility.
The undertaking as to damages is a real financial exposure, particularly where the order restrains a trading business.
Courts are also cautious, and applications that do not demonstrate genuine urgency are refused, which wastes time better spent on a proper application on notice.
And an ex parte order obtained and then not pursued lapses, leaving the applicant no better off and the respondent with a grievance.
Worth knowing
Put the other side's strongest points in your own affidavit. Nigerian ex parte orders are discharged for material non disclosure more often than on the merits, and an applicant who concealed something gains a few days and loses the case they could have won.
Questions people ask
What does ex parte mean?
An application heard with only one side present, without notice to the other party. It is exceptional and is allowed only where giving notice would defeat the purpose of the application.
When will a court hear an application ex parte?
Where there is genuine urgency and a risk that notice would allow the respondent to defeat the order, such as by moving assets, selling property or destroying evidence.
What is the duty of full and frank disclosure?
The applicant must put before the court everything material, including the facts and arguments the absent respondent would have raised. An order obtained without it is liable to be discharged on that ground alone.
How long does an ex parte order last?
It is interim and short. Nigerian High Court rules generally limit it to a defined period of days, extendable once, after which it lapses unless the matter has returned to court with both sides present.
What is an undertaking as to damages?
A promise by the applicant to compensate the respondent if the order turns out to have been wrongly obtained. It is a real exposure, particularly where the order restrains a trading business.
I have been served with an ex parte order. What do I do?
Obtain the application papers, identify what was not disclosed, and apply promptly to discharge the order. Comply in the meantime, because breaching a court order is contempt regardless of how it was obtained.