Ex Parte Applications and the Terrorism Prevention Act

Nnamdi Amaefule

I’m yet to see anything in the Terrorism Prevention Act 2011 (as amended) which authorizes the Federal High Court to hear a proscription application Ex Parte and grant final Judgment following an Ex Parte Application without giving those who may be affected by such Judgment a hearing, not to talk of a fair one.

I’m also tired of seeing lawyers justify the much harped violation of the principle of fair hearing, in the Proscription Order/Judgment recently made against IPOB and third parties who may be interested in the prosecution of the intentions of IPOB (who ever they may be and whatever the intentions of IPOB may be),on the guise that the TPA allows the proscription application to be made Ex Parte.

When a Relief is authorized to be granted by a “Judge in Chambers”, it simply means that the Judge can upon the Application/Motion of the Applicant grant such relief, without having to hear such application in open court. In effect, it’s a statutory derogation from the Constitutional requirement for the proceedings of courts to be adjudicated in public, pursuant to section 36(3) of the Constitution. It’s not howsoever, a license for a Court of Law to proceed to grant a relief, without hearing the party or parties who may be affected by the Order not to talk of granting final orders or Judgments in violation of the principle of fair hearing.

Therefore, in cases where a person or authority is allowed to approach a Judge in Chambers, the Applicant is at liberty to come either by way of Motion Ex Parte or Motion on Notice. However, it is the Judge in Chambers, having regard to the immutable principle of fair hearing, that has the responsibility to decide on its own motion, whether the Respondent or any other third party should be put on Notice, before deciding the Order, upon a casual perusal of the application and the nature of the reliefs sought. For example upon reading the supporting Affidavit to the Motion Ex Parte, the Judge in chambers, as an independent arbiter has the onus to hear the other side where there are severe allegations of facts, particularly, where such allegations are unsubstantiated by the exhibits annexed thereto or even so unreliable.

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Furthermore, where declaratory reliefs are sought, the bar is even raised higher, on the need to hear oral evidence from both sides and have the testimonies canvassed by both sides tested under the crucible of cross examination, since by our judicature, declaratory reliefs cannot be granted without oral evidence.

Consequently, even if for any good reason, whatsoever, the Judge in Chambers, chooses to proceed Ex Parte, he should be wary not to grant Orders that have final or conclusive effects. Hence, in granting Orders pursuant to Ex Parte applications, the Judge in chambers is constrained by the principle of fair hearing and consequently, usually Order the Respondent(s) to come and show cause, within a prescribed timeline, why the Order(s) sought vide an Ex Parte Application should not be granted; or made final. It’s completely absurd for a Court of law, to grant a final Judgment or Orders which have such effect, upon an Ex Parte Application; “except where expressly authorized to do so by Statute.”

However, I’m unable to recall any statute that has done so which has been allowed to stand. That is to say; authorizing a Court or tribunal to, give any Order which has a final effect, without giving the parties who may be affected by such Order, an opportunity to be heard. In fact, any such statute is void to the extent of its inconsistency with the provisions of section 36(1) and. (2) of the Constitution.

I also verily believe that the National Assembly must have been very cognizant of the forgoing; hence there is nothing in the TPA which allows a Judge in Chambers to grant Proscription Orders capable of complete and conclusive disposal of Proscription Application without hearing both sides.

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Hopefully, in the days ahead, prospective litigants, our authorities and also our Courts will be better guided in the determination of proscription applications.

Nnamdi Amaefule (nj.amaefule@gmail.com)is a Lagos Based Lawyer and Political Analyst.

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