November 7, 2023
On 25 October 2023, the High Court in Nuumo Emmanuel T Antia We & 6 Others v Nii Adotey Otintor II & Another (Suit No GJ/0034/2024), pursuant to an ex parte application, granted an order of interlocutory injunction restraining the respondents from ‘handling, organizing, touching, performing or dealing with the remained (sic) of the Late Queen Mother, Naa Dedei Omaedru III in any manner for a period of ten (10) days.’ But the next day, on another ex parte application, the injuncted respondents (now as applicants) obtained an order from the same judge to set the first order aside on the ground that it ‘was made in error,’ and that ‘the applicant failed to give the Court the true state of affairs.’ The court then did what it should probably have done in the first place, ordering that ‘any party desirous of proceeding may come on notice to the other party for a proper evaluation of the evidence from both sides.’
This dramatic turn of events, heightened by the extent of public interest in the subject matter (i.e., the burial and funeral of a Queen Mother) led to the unavoidable inquiry – can an order that is obtained ex parte be set aside through a subsequent ex parte application? This paper answers this question in the affirmative, arguing that the same standards for obtaining an order ex parte applies to a subsequent ex parte application that seeks to set the original order aside. To succeed, each application must, on its own, meet the standards.
Adversarial System of Justice
Ghana’s system of justice is adversarial, which means that two or more lawyers represent their parties’ respective cases before an impartial judge or panel of judges. Thus, in the main, all proceedings before, and applications to, the courts must be ‘on notice’ to the other party, thereby affording the opponent the opportunity to be heard in opposition, if they so desire.
Basis for ex parte Orders
Despite the adversarial nature of our legal system, court proceedings may take place ex parte under certain circumscribed or extraordinary circumstances. A proceeding or application is said to be made ex parte when it is made or granted at the instance and for the benefit of one party only, without notice to any adversely interested person. In Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd & Others,[1] Acquah JSC (as he then was), stated, although obiter, that ex parte applications and orders ‘are undoubtedly anomalies in our administration of justice… had the rules of the court not permitted such applications and orders to be made, they would have been nullities.’[2] By the rules, the court will only entertain applications ex parte if:
- having regard to the circumstances, the court considers it proper, or
- any civil procedure rule expressly provides for it.[3]
If the court is satisfied that there are good reasons for applying ex parte, and that delay caused by proceeding on notice would or might entail irreparable damage or cause serious mischief, it may entertain the application and make the order on such terms and with such undertakings it considers just.[4] If the application does not meet the standards, the Court may refuse to hear it, and direct that notice is given to all affected parties.[5]
In applications for interlocutory injunctions,[6] an applicant ex parte must prove ‘urgency’ and provide ‘sufficient reasons’ for applying ex parte.[7] The applicant therefore bears a heavy requirement of candor and duty of utmost good faith, requiring the full disclosure of all the facts (even if they do not favour the applicant), and suppressing nothing;[8] else the order, if made, may be set aside regardless of its merits ‘upon application by any party affected… on such terms as the court considers fit.’[9] And, the order, if made, must be time-bound, not exceeding ten days; and unless the court otherwise directs, the order lapses if no application is made to extend it.[10]
But can the initial order be set aside by a subsequent ex parte application (literally on the blind side of the one who obtained the injunction order)? Or should the affected person only proceed on notice to the one who obtained the order in the first place?
Setting Aside
The learned authors of 21 Halsbury’s Laws of England, citing Spanish General Agency Corporation v Spanish Corporation Ltd,[11] pronounce that ‘the Court will not hear an ex parte motion to dissolve an ex parte injunction.’[12] However, in London City Agency (JCD) Ltd & Another v Lee and Others,[13] Megarry J reviewed this authority and decried the terse bench orders that became Halsbury’s bases for the pronouncement, saying ‘there is very slender support for the far-reaching statement in Halsbury’ and that ‘I do not accept what is said in Halsbury as a correct statement of the present law.’[14] He found, on the contrary, that ‘the court has ample jurisdiction to make such an order, and there is no established rule of practice to prevent the court [from] doing so in a proper case.’[15]
He explained that if the court could grant an interlocutory injunction on an ex parte application when a case of sufficient cogency is made, there is no reason why the court could not grant a subsequent application ex parte to discharge or vary the order, provided that the subsequent application ‘is supported by sufficiently cogent grounds.’[16] He said that although ordinarily, it would be plainly preferable that the subsequent application is made on due notice, there was no reason why ‘in a case of sufficient urgency… an injunction granted ex parte should be immune from being varied or discharged on an ex parte application.’[17]
The judge concluded that ‘I cannot believe it to be the law that however clearly it has been established that it would be wrong for the injunction to continue in force unchanged, the court is impotent to discharge or vary it until notice of motion has been given and has expired… Accordingly, in my judgment, the only question here is whether the applicants ex parte have made out a sufficient case for discharging or varying this injunction.’[18]
In Ghana, the Supreme Court has held that even if the applicant ex parte suppressed facts from a court, an application to set that procured order aside should not be made ex parte unless there are prevailing conditions necessitating, demanding or justifying it. In Republic v High Court Accra, Ex Parte Salloum & Others (Senyo Coker – Interested Party),[19] the Supreme Court, speaking per Anin Yeboah JSC (as he then was) stated that ‘we wonder whether an application to set aside any order which was made by a court of competent jurisdiction by relying on suppressed facts should be made ex parte when there are no prevailing circumstances warranting it to be made ex parte, without notice to the person to be affected.’[20] The Court therefore rejected that application because it did not ‘disclose any urgency of the matter and any irreparable injury [that] would have resulted’[21] from proceeding on notice.
Conclusions
There is no valid legal authority for the proposition that an ex parte injunction cannot be set aside by a subsequent ex parte application by the affected party. However, the standards required to obtain an order ex parte apply with equal strength when applying ex parte to set it aside. An applicant for an order ex parte must show that
- the order is proper,
- there are good or sufficient reasons,
- there is probable, irreparable damage or serious mischief, and
- there is a case of urgency.
Similarly, the person applying ex parte to set that order ex parte aside must show that there are
- a proper or sufficient case,
- a sufficiently cogent reason (such as potential irreparable damage), and
- sufficient urgency.
Simply, the same standards apply to the two types of ex parte applications. Even if the applicant ex parte failed to meet the standards (which is likely to be the main reason for applying to set the order aside), any party who is adversely affected by the order must proceed on notice to set it aside – an ex parte application will not be successful if that party does not meet the required standards. It is the duty of the courts to strictly enforce these standards to ensure that their discretion to consider ex parte applications does not undermine the adversarial nature of our legal system through an abuse of process.
The terse bench rulings in Nuumo Emmanuel T Antia We v Nii Adotey Otintor II do not include much to show whether and how these standards were met in either application. They provide very slender support for teasing out any far-reaching statement of the law, except where the judge admitted that his earlier orders were ‘made in error,’ and that ‘the Applicant failed to give the Court the true state of affairs.’ If that ‘error’ was simply caused by the applicant ex parte suppressing information from the court, then it would appear that the standards were not met in discharging the order ex parte, and the application to set the order aside should have been on notice to the other parties.
However, if what the court considered as the basis of its ‘error’ constituted proper, sufficient and cogent reasons in accordance with the required standards (although these were not disclosed in the ruling), then the court would be right in setting the first order ex parte aside by another order ex parte.
Endnotes
[1] [1998-99] SCGLR 1
[2] id, 7
[3] High Court (Civil Procedure) Rules, 2004 (CI 47), order 19 rule 3. A discussion of the roughly two dozen instances where the rules expressly provide that applications may be made ex parte, is outside the scope of this paper
[4] id
[5] id
[6] Typically restrains another party from doing certain acts pending the determination of a case
[7] CI 47, order 25 rule 1(7) & (8) [emphases added]. See Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd & Others [1998-99] SCGLR 1, per Acquah JSC (as he then was), obiter at 7: ‘…to prevent the misuse…, such applications are to be resorted to only in cases of extreme emergency, where the interest of justice requires that the court should intervene immediately without notice to the party to be affected. …the urgent situation must be such that it would be improper or even imprudent to give notice of the application to the other party.’
[8] Republic v High Court Accra, Ex Parte Salloum & Others (Senyo Coker – Interested Party) [2011] 1 SCGLR 574, per Anin Yeboah JSC (as he then was): ‘I freely accept the proposition of law that in motions mounted ex parte, the utmost good faith is required of an applicant.’ See also Republic v Accra District Court Magistrate; Ex Parte Kuma [1968] GLR 954 per Charles Crabbe J at 961 & 968: ‘It is pertinent to realise that in moving a court ex parte, an applicant is under a strict obligation of uberrima fides… The motion before me is an ex parte application which is based on the requirement that an obligation of the fullest confidence is a sine qua non on the part of the applicant. I cannot say that on this affidavit the utmost good faith has been shown.’
[9] CI 47, order 25 rule 1(11). See Aidoo v Ekuban & Others [Unreported; Suit No H1/23/2017; 27 February 2017; CA], per Saeed Kweku Gyan JA: ‘The failure to disclose… a material fact in [an] ex parte application was sufficient ground to nullify the outcome or decision of the said application.’ See also R v Kensington Income Tax Commissioners, ex parte Princess Edmond de Polignac [1917] 1 KB 486, per Warrington LJ (at 509): ‘It is perfectly well settled that a person who makes an ex parte application to the Court… is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not…, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him.’ Per Scrutton LJ (at 514): ‘… it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts …, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement.’ See also the Supreme Court Practice, 1995 (The White Book), paragraph 29/1/8, page 517, citing Boyce v Gill (1891) 64 LT 824
[10] CI 47, order 25 rule 1(9) & (10)
[11] (1890) 63 LT 161
[12] Halsbury’s Laws of England (3rd ed), page 436, paragraph 926
[13] [1969] 3 All ER 1376
[14] id, 1378
[15] id [emphasis added]
[16] id [emphasis added]
[17] id [emphasis added]
[18] id [emphasis added]
[19] [2011] 1 SCGLR 574
[20] id, 582–583 [emphasis added]
[21] id, 582 [emphases added]
