Interlocutory Applications: Stopping the moving train

When a matter is before a court, think of it like a well-serviced train, functioning well and prepared by you (the lawyer), ready to hit the road (or more appropriately, the tracks) and to be buoyed to your audience, the judge. And suddenly new facts come up that you just must let your audience know, or there are detours you wish to make so that the journey ahead will be smooth and fruitful. That’s what interlocutory applications comprise of.

They add to alter or supplement the main process – the frontloaded ones. They are decided by judgment of course but not the kind of judgment that ends the matter.

There are a lot of interlocutory applications, for different purposes. They are divided into two based on how the parties are heard:

Motion on Notice: This one puts the other party on notice i.e. the other party is served and allowed time to file a counter affidavit. If the rules ask for a motion this is the type of motion you use. It lasts for 5 days, then the respondent has 7 days to counter, then you have 7 days to reply.

Motion Ex Parte: The other party is not served and is not allowed any audience in court. (Kind of goes against the principle of fair hearing innit?) It is a delicate motion and you cannot use it unless the rules ask for it, there is real urgency or the other party won’t be hurt. An ex parte motion results in an ex parte order and an exparte order has an expiry date.

In Lagos it is valid for 7 days and can be extended for another 7 days

In Abuja it is generally 14 days but it is slightly more complicated, pay attention: Take note that the respondent may apply to vary or discharge the exparte order and this is usually done by Motion on Notice. Where a respondent is interested in doing this, he must do so within 14 days of the order being made; no application can be made outside the 14 days.

  • If the defendant makes an application, the 14 days counts from the day the application is made.
  • Where the application is not heard or taken within 14 Days after it was filed, the order lapses.
  • If the application is taken, the 14 days will count from the conclusion of argument on the application.

Motions are supported by

Affidavits: A document containing facts which the deponent believes to be true. This is also where you attach your exhibits e.g. that the applicant made payments and received a receipt which is hereby attached and marked exhibit A. The deponent (person deposing to an affidavit) states facts to support the application. It may or may not be the applicant. It could be a friend, relative, colleague, anyone who is capable of giving evidence under law and is privy to the relevant facts. For instance in motion for substituted service, the bailiff or serving officer of the court shows in the affidavit that he has been to the defendant’s house, has called his phone, gone to his place of work, etc; but didn’t find the defendant to serve.

Section 115 Evidence Act tells us what is supposed to be in an affidavit. Generally you shouldn’t be talking provisions of the law in an affidavit, leave that for your written address. Also say only what you know.

Written address: Written by the lawyer to support the affidavit and application, in my opinion this is the only point at which university education meets law school education, you raise issues and treat those issues with statute and case law then marshal your argument. Sound familiar? Here you can cite all the laws you know in your favour. The respondent can also file a written address with his counter affidavit. Then the applicant can only file a reply on points of law only to a counter affidavit; and a reply on point of law is like an affidavit too.

When you file the application, the respondent, if it is motion on notice, files a counter-affidavit and a written address.

Counter-Affidavit: This is filed by the respondent to an application and the respondent basically disputes any facts that are not true or he puts forward facts to jeopardise the success of the application. Counter affidavit is not necessary in the following instances:

  • If you are not opposing the motion, you don’t have to say anything. Something like change of counsel – if it’s not really an issue just allow the man be great and move on with the matter.
  • If the affidavit is contradictory in itself (why waste time)
  • If the challenge you have against the affidavit is on points of law only (remember you don’t cite sections in affidavit so if you have no facts just file a reply)
  • If the affidavit cannot support the prayer/application (no need to flog an already weak opponent)

The respondent’s written address is much like that of the applicant, only that he is arguing to support himself and running down the arguments of the applicant as much as he can.

After the respondent has done his own and there were shots fired, applicant can do his own back by filing a further affidavit (if he has facts) or a reply on points of law, if he has a legal argument.

Further Affidavit: Some people call it better affidavit or further affidavit, whatever. If after you have filed an affidavit for your application and the respondent to has filed his counter, and alas you have FACTS to add to what you have already disclosed; perhaps they just came to your knowledge; then a further affidavit is your best bet. But be careful you don’t file too many affidavits that begin to contradict each other because once that happens you are giving room for oral evidence (Section 116 EA says where there is conflicting documentary evidence it should be resolved by oral evidence) and you know how that could get.

Reply on points of law: This one is when you want to rebut your respondent’s legal argument only, (not FACTS o, go and file further affidavit), usually in court the lawyer can just stand up and tender his reply on point of law orally. After this reply, game over, court rules, move back to the main issue.

Yes, so you know what an interlocutory application sounds like, here’s what it looks like. Let’s draft an application to join a third party (remember we spoke about that here), just the motion paper not affidavit or written address. Let’s say you bashed my car and I sued you then you want to add Afrilinks Insurance Ltd – you insurance company with whom you have a third party insurance policy.  The matter is at the High Court of Lagos.






MEEE MI ……………………………………..……………….CLAIMANT (notice I didn’t put respondent, this is because it is a motion ex parte, and the other party to a motion ex parte is NOT heard)


YOU YU ………………………………………………………….DEFENDANT/APPLICANT




BROUGHT PURSUANT TO ORDER _ RULE _ OF THE HIGH COURT OF LAGOS STATE CIVIL PROCEDRURE RULES 2009 AND UNDER THE INHERHENT JURISDICTION OF THIS HNOURABLE COURT (even if in exam you don’t know the exact law(s) that provides for your application, you should just put __ like I did because this is a non-negotiable part of your motion paper; then the inherent jurisdiction of the court must always be there)

TAKE NOTICE that this honourable court shall be moved on the __ day of ___ 2017 at the hour of 9 o’clock in the forenoon or so soon thereafter an excuse for the judge to come late as counsel to the Defendant/Applicant (always describe your parties as they are mentioned up there, it keeps you in check and is elegant drafting) will be heard praying the court for:

  1. AN ORDER joining AFRILINKS INSURANCE LIMITED as third party in this suit.
  2. AND FOR SUCH ORDER/ FURTHER ORDER that this honourable court may deem fit to make in the circumstances (The omnibus prayer, it must be in every motion, doesn’t matter if you think you’ve covered all the reliefs)

Dated the ____ day of ___2017


Oga Lawyer

Defendant/Applicant’s Counsel

Oga Lawyer Chambers

1,Oga Lawyer Lane, Sokoto,


When it comes to drafting processes in civil you have little room to freestyle. The pattern language are precise, with time you will find yourself completing the words once you here ‘TAKE NOTICE…’ Please don’t forget the heading and designation of the parties, those are the things that carry marks.

Next we treat other interlocutory applications especially their drafting.


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