WHAT IS COURT ORDER?
Whenever application (oral or written) is made to court, the court hears the application, and give it’s verdict on the application.
The verdict of court in this instance becomes the Order of court with respect to the issue before the court. The order binds the parties, their agents and privies. it is immaterial on whose favour the Order is made.
Order of court are decision of court with respect to issues brought before it. Order of court are also refered to as Court Order. There are basically, the pronouncement of judge or anyone sitting on judicial capacity on issues in contention before the court.
The type of Order court can make will depend on the nature of the application brought before it.
TYPES OF COURT ORDER
Order of courts can be classified into three:
a. Pre-trial orders.
b. Trial orders
c. Post trial orders.
PRE-TRIAL ORDER.
This type of order is made by court before the suit go into hearing. This order are called pretrial orders because they are made at the preliminary stage of the suit when issues have not be joined by parties to the suit
The following are examples of Pre-trial Orders:
a. Order for Interim application
b .Order for Substituted service.
A.INTERIM INJUNCTION
This kind of injunction is used for urgent situation to stop an act already ongoing or on the verge of starting .
An application for this kind of injunction is usually made exparte and can last for 7 days or for as long as the court may allow pending the hearing of interlocutory application on notice.
In this kind of Injunction, court usually make interim Order and it’s essence is to preserve the res(the subject matter of litigation) pending the hearing of the interlocutory applications. See the case of Ezebilo v Chinwuba(1997) 7NWLR(pt.511) 108
An Interim Order is not granted retrospectively, that is, the order is not made against an act that is already completed. See the case of NBM Bank Ltd v Oasis Group Ltd(2005) 3 NWLR(pt.912)320.
An application for interim Order(injunction) is made to court where there is real urgency, and irreparable damage may be done to the Applicant before an application on notice for interlocutory Order(injunction) can be heard.
B. ORDER FOR SUBSTITUTED SERVICE.
This is one of the types of Court Order in Nigeria. The law is that service of processes must be by personal means. Personal service entails that the court process be served on the person named in the process directly and nothing more
However, the law does not command the doing of the impossible(Lex Non Cogit ad impossibilia).
Where personal service has become impossible due to circumstances, the law allows for Substituted service. Substituted service allows you to paste the processes at the last known place of abode of that person that you couldn’t serve by personal means. The court can also allow you to paste the process at any other place.
This is provided in the various rules of court and an Order for Substituted service is one of the Orders court can make.
TRIAL ORDERS
This type of court order is made when issues have been joined by parties and hearing has commenced. This order is made whenever motion on notice has been filed before the court by any of the parties.
Depends on the reliefs sought, the following trial orders can be made by court:
a. Interlocutory order
b Mareva Order
c .Anton pillar
d. An order for stay of proceedings.
d.An order for extension of time
e. An order for joinder of parties.
A. INTERLOCUTORY INJUNCTION
An application for interlocutory injunction is usually made on notice and it’s sole purpose is to preserve the res pending the hearing and determination of substantive suit. The essence of this kind of injunction is that irreparable damage may happen to the res in such magnitude that compensation will not be adequate.
In practice, both the Interim application and Interlocutory applications are filed together. The only difference is that the first is made exparte while the later is made on notice and again, while interim Order if granted, last till the hearing of the interlocutory application, Interlocutory injunction when granted, last till the pendency of the suit.
CONDITIONS FOR GRANTING INTERLOCUTORY INJUNCTION.
Before Court can grant an Interlocutory Application, the court considers the following factors:
i.Whether there is an existing legal right that needs to be protected.
ii.Whether the Act complained of has not been completed
iii.Whether there is delay which may hamper the grant of the injunction
iv.Whether damages would be adequate compensation
v.Conduct of the parties.
vi. Applicant’s undertaking as to damages.
vii.Whether the balance of convenience is in favour of the Applicant.
See the case of Kotoye V CBN(1989)1NWLR(pt.98) 419
See also C.B.N v S.A.P(Nig) Ltd(2005) 3 NWLR(Pt.911) 152.
Application for interlocutory injunction is by motion on notice supported by affidavit disclosing the existence of real urgency, triable issue, irreparable damage and those other condition discussed above. The application will also be supported by written address.
The court before granting interlocutory Order/injunction considers the affidavit of the Applicant and the Counter affidavit of the Respondent to determine whether there is a legal right to be protected or trial issues between the parties.
CAN INJUNCTION BE USED WHERE SUIT HAS BEEN STRUCK OUT?
No! An application for injunctive reliefs are only rooted on existing substantive suit. The application for injunctions does not exist in vacuum. In order words, there must be pending legal suit, upon which the subject matter need to be preserved by the injunctive relief sought pending the determination of the suit by court.
But where a suit has been struck out, the injunction sought cannot stand upon nothing. See the case of Nwankwo v Ononoeze Madu(2005) 4 NWLR(pt.916) 470
B. ANTON PILLAR.
This Order has its root from the case of Anton Pillar K.G v Manufacturing Processes Ltd(1976) 1 All ER 779.
The order authorizes a person named in the order to enter a premises of another to search, seize, inspect or preserve the goods, or article in the possession of a other person.
This kind of orders are made in most cases of infringement of copyright or against persons selling or dealing with illegal products. Application for Anton pillar are made exparte. See Section 22(1) of the Copyright Act Cap 68 LFN 1990.
C. MAREVA INJUNCTION.
This injunctive relief has its root from the case of Mareva Compania Naviera S.A v International Bulk Carrier Ltd(1975) Llyod’s Rep 507.
This type of Injunction restrains a person from removing his assets within the jurisdiction of court. The order can also stop the person from disposing off such property.
D. AN ORDER FOR EXTENSION OF TIME.
This is also one of the types of Court order in Nigeria.
The rules of Courts provides for period within which every act must be done. Where a party does an act outside the time prescribed by the rules, such a party is expected to file motion on notice for extension of time.
The motion will be accompanied by affidavit and written address. Upon hearing the motion, the court can order the extension of time.
E. AN ORDER FOR JOINDER.
Parties can apply to join every necessary party not joined at the beginning of the suit. Interested persons who desires to be joined in a suit can also apply to be joined.
The court has powers to join anybody in a suit. In the same way, court has powers to strike out any person wrongly joined. The court makes such Orders as the justice of the case so demand.
F. AN ORDER FOR STAY OF PROCEEDINGS
Where in a course of pending suit, court delivers a ruling that a party is dissatisfied with, such a party can appeal against the ruling. In appealing against the ruling, the party is expected to file motion for stay of proceedings pending the determination of the appeal. Court can grant or refuse the application for stay of proceedings.
POST TRIAL ORDERS
Post trial orders are made by court at the end of trial or proceedings. Some post trial orders forms part of the judgement of court while some orders may be made after judgement has been given.
Examples of Post trial orders
a. Perpetual Injunction
b. Declaratory Orders
c. Order for stay of execution
A.PERPETUAL INJUNCTION.
A perpetual injunction is an order of court which which binds the parties from the date the judgement of court is made. The order restrains not just the parties but, their agents and privies from doing the act forbidden by the order.
In the case of Adekunjo v Hussain(2021) 11NWLR. (PT.1788) P.438, the court held that perpetual Injunction is a post-trial relief meant to protect a right established at the trial. The court went further:
” Because of its finality, it can only be granted if the claimant has established his case on the balance of probability”
Thus, while Interlocutory injunction last till the suit is determined, perpetual Injunction last as long as the judgement of Court remains and has not been overuled by Superior Court.
The application for perpetual Injunction forms part of the reliefs sought in the suit. It is not made separately unlike the interim and interlocutory injunction.
B. AN ORDER NISI AND ABSOLUTE.
There are alot of transaction that require court making order nisi in law. One of them is in Garnishee proceedings where the court usually make an Order nisi after hearing an application for garnishment made exparte by Garnishor.
Again, an Order nisi is also made in mortgage transaction by court against the morgagor foreclosing the mortgagor from having access to the mortgaged property. The mortgagor is allowed to redeem the mortgaged property within the period of the Order nisi, because “once a mortgage, always a mortgage”
The foreclosure order nisi can be made absolute against the mortgagor if he fails to redeem the mortgaged property within the period of the order nisi.
An Order nisi is also made in matrimonial proceedings. Though, it is referred to as “Decree nisi”
AN ORDER ABSOLUTE.
The order nisi in any of the circumstances described above may be made absolute.
In case of Order nisi made extinguishing the mortgagor’s equity of redemption, the order becomes absolute after 6 months.
In the case of Garnishee Order nisi, the order becomes absolute after 14 days.
In matrimonial causes, decree nisi becomes absolute after 3 months.
C. DECLARATORY ORDERS.
This kind of Orders are made by court during Judgement. By declaratory orders, court confirms the existence of right of parties over the subject matter of litigation. Example,
a. A declaration that the pieces of land situate at No:34 Ogbaga Road belongs to Mr. Michael Ngwu…
Judgement of court is it’s findings on the rights and liabilities of parties on the matter litigated upon. In other words, court Judgement represents the decision of the court and it is an Order until appealed against.
Disobedience to court Judgement can as well be treated as contempt of court and parties can be prosecuted for contempt albelt, ex facie curie.
D. AN ORDER FOR STAY OF EXECUTION OF JUDGEMENT
Where Judgement has been given by court and a party desires to appeal against the judgement, such a party will apply to court via motion on notice for stay of execution of the judgement of court pending the hearing of the substantive appeal filed by the party seeking it.
The essence of order of stay of execution is to stop the enforcement of the terms of judgement of court.
Consequence of Disobedience to Court Order?
Disobedience to Court Order could lead a person to be punished for Contempt of Court. Order of Court must be obeyed even when it doesn’t seem to be right. The proper thing to do is to Appeal against the order.
PROCEDURE TO GET COURT ORDER.
Order of courts can be gotten either as Certified True Copies or an enrolled Order of Court. The only difference is that the later is under the seal of the Court.
Getting Court Order is easier for lawyers than non-lawyers.
For lawyers, a simple application is made to the Registrar of the court for the enrolled of the court in the said suit. The application(2 copies) is thereafter filed at the appropriate court Registrar where the matter was heard.
Upon the receipt of the application, prescribed fee will be paid by the applicant and the application is processed. It takes days before the order will be ready. It is your duty as counsel to keep checking on the Registrar to know when the order is ready.
or preponderance of evidence. It’s aim is to protect an established rights”.