Your client just received notice that the Court of Appeal granted a sweeping ex parte order against them. Accounts may be frozen. A receiver may have been appointed. Operations could be paralysed before your client has had a single day in court on the merits. This is one of the most urgent moments in commercial litigation, and the first question is not "how do we win the appeal?" but "was this order lawful in the first place?"
Ex parte relief exists for a reason. Nigerian courts recognise that in genuine emergencies, waiting for both sides to be heard can destroy the subject matter of the dispute. But that power is narrow, exceptional, and heavily constrained by jurisdiction and constitutional fair hearing. When an appellate court stretches ex parte jurisdiction beyond those limits, the Supreme Court has shown it will intervene. Understanding where the line is drawn will save your client time, money, and control of their business.
What Ex Parte Relief Is (and What It Is Not)
An ex parte application is made by one party without notice to the other. The court hears only the applicant and, if satisfied, makes an interim order pending a full hearing on notice.
Ex parte orders are meant to be preservative, not substantive. They hold the position steady until both parties can be heard. They are not a shortcut to final relief. They are not a substitute for trial. They are not a mechanism for one party to gain permanent advantage while the other is still assembling a response.
The standard tests for interim injunctions in Nigeria remain familiar: is there a serious question to be tried? Would damages be an adequate remedy? Where does the balance of convenience lie? On an ex parte application, the applicant also bears a strict duty of full and frank disclosure. Any material fact omitted can be grounds to set the order aside, sometimes with costs and sometimes with broader consequences for credibility.
Why the Court of Appeal Is a Different Animal
Trial courts grant interlocutory orders every day. That is part of their daily work. The Court of Appeal, by contrast, is primarily a reviewing court. Its core function is to hear appeals from lower courts, not to run parallel trial-level litigation by ex parte fiat.
Several jurisdictional questions therefore arise immediately when an ex parte order issues from the Court of Appeal:
Has the appeal been properly entered? Filing a notice of appeal does not automatically transfer the entire dispute to the appellate court. Until the record is transmitted and the appeal is entered, the trial court often retains jurisdiction over interlocutory applications in the substantive suit. An ex parte application to the Court of Appeal before proper entry may be fundamentally misconceived.
Is the relief truly interlocutory? Orders described as "restorative" or framed as reversing a trial judge's decision on the merits often function as substantive injunctions. Appellate courts must be careful not to use ex parte processes to decide issues that belong to a contested hearing.
Does the appellate court have power to stay proceedings below? A party who initiated proceedings at trial level and then obtains an ex parte stay from the Court of Appeal may face scrutiny. Stays that paralyse the trial court without demonstrated urgency or legal necessity are vulnerable on appeal.
Was leave required? Some appeals, including many interlocutory appeals, require leave before they can proceed. An ex parte order built on an appeal that was never properly opened, or that required leave that was not obtained, rests on a defective foundation. For a fuller treatment of leave and grounds, see our guide on grounds for appeal in Nigerian courts.
Recent apex court guidance has reinforced that appellate courts must not grant perpetual or restorative status quo orders in matters still live before trial courts where that power belongs elsewhere, and that ex parte jurisdiction must not be used to achieve substantive outcomes without fair hearing.
Fair Hearing and the Constitution
Section 36 of the Constitution guarantees fair hearing. A person whose property, bank accounts, or business operations are restrained is entitled to be heard before deprivation, except in the narrow circumstances where ex parte relief is truly justified.
When an ex parte order at the Court of Appeal effectively transfers control of a company's assets to a counterparty, the affected party has not been heard. The urgency must be real, the disclosure complete, and the order no wider than necessary. Orders that go beyond preservation into management, control, or reversal of trial court decisions raise serious constitutional questions.
Practitioners responding to such orders should frame their challenge in both procedural and constitutional terms: lack of jurisdiction, abuse of process, failure of disclosure, and breach of fair hearing.
Interlocutory vs Restorative Orders
A common flashpoint in commercial disputes is the "restorative" ex parte order. The applicant tells the Court of Appeal that a trial judge made an order that should be undone immediately, and asks the appellate court to restore the status quo ante pending appeal.
Labelling an order "restorative" does not change its nature. If it operates as an interlocutory injunction reversing another court's decision, granted without hearing the other side, it remains an ex parte interim order subject to all the usual limits. Courts must ask whether the appellate forum was the correct place for that relief and whether the order's breadth matches the emergency alleged.
Orders that appoint receivers, freeze all accounts, or restrain directors from ordinary business conduct are not minor preservation measures. They demand the highest level of judicial caution, especially ex parte.
A Practitioner's Checklist When Challenging Ex Parte Orders
If you are instructed after an ex parte order has issued against your client at the Court of Appeal, work through this sequence:
1. Obtain the order and the supporting affidavit immediately. Read every paragraph. Identify exactly what was granted and what factual case the applicant made.
2. Check appeal status. Confirm whether a notice of appeal was filed, whether leave was required and obtained, whether the record of appeal was transmitted, and whether the appeal was entered. A defect here may be dispositive.
3. Audit disclosure. Compare the applicant's affidavit to facts your client knows. Material non-disclosure is a classic ground to set aside ex parte orders.
4. Classify the relief. Is it purely preservative, or does it decide substantive rights? Does it stay the trial court? Does it appoint a manager or receiver? The wider the order, the stronger your challenge.
5. Move on notice without delay. Apply to set aside or vary the order. Request an expedited hearing. Where appropriate, apply to the Supreme Court if the Court of Appeal refuses to vacate and the harm is ongoing.
6. Preserve the trial court option. If jurisdiction never properly shifted, consider whether interlocutory relief should have been sought at the Federal High Court or State High Court instead, and whether your client can still pursue remedies there.
7. Document harm. Keep records of operational disruption, frozen payments, and reputational damage. This supports both variation applications and any later claim for costs or damages.
A Checklist When Seeking Ex Parte Relief (For Applicants)
If you act for the applicant, protect your order by doing the opposite:
- Ensure the appeal is properly entered before you seek appellate ex parte relief.
- Confine the order to the minimum necessary preservation.
- Disclose every material fact, including facts unfavourable to your client.
- Avoid language that asks the Court of Appeal to reverse the trial judge on the merits ex parte.
- Be ready to give an undertaking as to damages where appropriate.
- List the matter for hearing on notice within the shortest practicable time.
An ex parte order obtained by overstating urgency or understating the counterparty's case may be set aside and may damage your client's credibility for the rest of the litigation.
Common Defects That Get Orders Set Aside
From practice and reported appellate decisions, these defects recur:
- Ex parte order granted before the appeal was entered.
- Order granting substantive relief (asset control, receivership) without hearing the other side.
- Failure to disclose material facts in the supporting affidavit.
- Order staying trial proceedings without legal basis or genuine urgency.
- Appellate court acting as trial court on interlocutory applications still properly before the lower court.
- Status quo or perpetual orders in interlocutory appeals where the trial court retains jurisdiction.
- Appeal proceeding without required leave.
Each defect is an independent ground of challenge. Plead them all in your application.
Researching the Law Before You File
Ex parte strategy lives or dies on jurisdiction and precedent. Before you draft an application or a challenge, identify how Nigerian courts have treated similar orders in your practice area. Search for Supreme Court and Court of Appeal decisions on appellate jurisdiction, interim injunctions, and fair hearing in commercial disputes.
Our complete guide to Nigerian case law research walks through how to find and cite the authorities you need. For faster research across judgments and statutes, use JurisAid case search to pull relevant precedents before you commit to a line of argument.
The Bottom Line
Ex parte relief at the Court of Appeal is a powerful but exceptional tool. It is not a back door to substantive victory. When orders exceed jurisdiction, skip fair hearing, or rest on defective appeals, the apex court has shown willingness to set them aside and to say so plainly.
If your client is facing such an order, move quickly, challenge jurisdiction first, and do not assume the order is unassailable because it came from a superior court. If you are the applicant, narrow your relief, disclose everything, and enter your appeal properly before you ask an appellate court to bind your opponent without a hearing.
This article is general information only, not legal advice. Confirm current law and facts before acting.