Motions in Court: Introduction

Motion is simply an application made to court seeking certain reliefs. It is a formal way of asking the court for a legal favor.  Motion can also mean a legal document or process filed in court containing certain prayers. In this sense, there is a motion paper before the court evidencing the application made.

Motions can be in written form as noted by Findlaw or orally made. In superior courts in Nigeria like High courts, motions are expected to be in writing accompanied by an affidavit and written address as provided by the rules of the court where it is to be used.

But in lower courts like magistrate court and customary court, motions can be made or moved and heard orally except where the court directs otherwise. An example of such motions made orally is the application for bail, which is usually made orally at the magistrate court level.

Content of motion

A proper motion must:

• Be headed to the appropriate court.
• Contain the motion number ascribed to it
• State the parties before the cour
• Specify whether the motion is made exparte or on notice
• Contain the rules of court under which the order in the face of the motion paper is sought
• Contain the reliefs sought in the motion
• Be dated and signed by the applicant’s counsel
• Contain the applicant’s counsel’s address for service and the respondent’s address for service where it is made on notice.

Types of motion

There are two types of motion: motion exparte and motion on notice.

MOTION EXPARTE

It is a motion exparte, where the application is made to court without putting the other party on notice. In this regard, there is no address for service because the other party is not expected to be served.

This kind of motion is entertained where from the nature of the application, the interest of the adverse party will not be affected as it is in the case of leave to serve by substituted means and also due to the urgent nature of the application, time is of the essence and a great loss or mischief will occur if due process of putting the adverse party on notice is followed. See the case of Leedo Presidential Motel Ltd v Bank of the North (1998) 7 SCNJ 328 at 353

An example of a motion made by Exparte is a motion for substituted service. But once the Defendants in a suit have duly been served and issues joined, every other application coming to court no matter how harmless, must be on notice.

This is because the adverse party who is the respondent is expected to appear in court on the hearing date to oppose the motion except the  adverse party elects not to oppose where he feels that his interest will not necessarily be affected.

Uses of motions

Motions are used for a wide range of requests in court. From the commencement of an action to judgment and appeal, motions can be used for any of the following purposes:

For injunction:

Injunctions can be interim, interlocutory, mandatory or prohibitive, Anton pillar, Mareva injunction, etc. All these types of injunction can be obtained through motion. But the type of motion to use depends on the type of injunction sought.

Stay of proceeding

A party who wishes to make an interlocutory appeal while a suit is still pending, such a party can bring a motion for a stay of proceeding pending the determination of the ruling of the court appealed against.

Stay of execution of judgment.

At the end of the trial, judgment will be given. Any person who is not satisfied with the judgment of the court can appeal against such a decision. And to successfully protect the subject matter of the judgment, such a party seeking an appeal ought to file a motion on notice for the stay of execution of the appeal pending the hearing and determination of the appeal.

For bail

One of the commonest uses of motion is that motion is used to make bail applications. As we said earlier, in Magistrate Court, an application for bail can be made orally, but in High court and other superior Courts of record, bail application must be in written form accompanied by an affidavit and a written address.

For additional witnesses and recalling of witnesses.

Where a party, wishes to recall a witness who had earlier testified in a suit, or the party is desirous of calling an additional witness, the party seeking to do so can come by way of motion.

For joinder of parties and misjoinder of parties

Where a party in a suit wishes to join more persons in a suit, he can come by way of motion. Where any person has an interest that may be affected by the outcome of the suit, such a person can apply to the court to be joined via motion. Again, where a party has been wrongly joined, a motion asking the court to strike out the improper party is the most appropriate thing to do.

MOTION IS USED FOR EXTENSION OF TIME.

Whenever a party is late in doing an act prescribed by Rules of court, that is, where the party is doing the said act outside the time allowed by rules of court, such a party applies via motion for extension of time.

PRELIMINARY OBJECTIONS.

Motions are also used for wide range of preliminary objections. Preliminary objections challenges the jurisdiction of court. The grounds upon which preliminary objections may be raised are: Lack of proper parties before the court, the suit being statute barred, the non fulfillment of condition precedent (pre-action notice), incompetent originating processes etc.

SUBSTITUTED SERVICE.

Motion is also used when applying to court for leave to serve by substituted means. The motion used for Substituted service application is motion exparte.

AMENDMENT OF PROCESSES

A party who desires to amend his originating processes does that by way of motion on notice. Amendment of processes are allowed during pendency of suit.

MOTIONS ARE ALSO USED FOR SUMMARY JUDGEMENT.

The various High Court Rule made provisions for summary judgment. That is judgement obtained by the plaintiff in liquidated money suit where he thinks the Defendant has no defense. This application for summary judgment is done by way of motion on notice.