Further on ex parte proceedings

DPA Rambo explains the law to DPA members

FURTHER ON EX PARTE PROCEEDINGS

(How it works)

I assume you read my earlier post on the meaning of ‘ex parte’ as used in law. Your interest in my earlier post prompted me to take you a little deeper into the subject.

Again, the term ‘Ex Parte’ is a Latin term that translates to “from a side”. In modern legal usage, it means:

“With respect to or in the interests of one side only or of an interested outside party.”

There is something that confuses even lawyers. It is not every time that the court makes an order or renders a judgment without hearing the other side that you can call the proceeding an ex parte proceeding. There can be a default judgment, which is also a judgment based on one side only. But default judgment is different from an ex parte judgment or ex parte order.

What is the difference between ex parte proceeding and proceeding in default? In ex parte proceeding, you did not put your opponent on notice to inform him that you filed an application against him and he does not know that you are proceeding against him in court. In ex parte proceedings the court is prepared to give judgment based on the argument of one side only. But a default proceeding involves a case where your opponent was informed of the case, but he refused to respond or show up on the trial date. If your opponent fails to come to court, the court will give judgment based on one side of the case – that is the side of the party that came.

Ex parte judgment and default judgment are both one-sided judgment. In ex parte, the judgment is one-sided because the other size was never offered the opportunity to present his side of the case. But in default proceedings, the judgment is one-sided because the other side refused to come to present his side of the case even after he was given the opportunity to do so.

Both ex parte judgment and default judgment can be vacated or set aside based on a Motion to Vacate. (That’s what Femi Falana needs to file on behalf of Sowore). But where it is an exparte application you only have to show that the ex parte judgment was given based on incorrect or false information, whereas to vacate a default judgment, you also have to explain satisfactorily why you failed to show up when you were summoned to show up. If you cannot give a good reason for your absence, the court may allow the default judgment to stand even though he now knows the judgment was based on wrong grounds – eg, you never owed the money you have been ordered to pay back.

Remember that apart from criminal cases, you are not required to be in court for your case. It is not compulsory that you come to court. The only consequence of your absence is that the judge will assume that everything said by your opponent is true, and judgment will be given to him on his words alone. That is a default judgment. But if it is a criminal case, you must show up. If you don’t come to court, the trial cannot continue in your absence. Instead the court will issue a bench warrant, which is the way to force you to come to court. Also, denying an accused person bail is another way to make sure he is present in court for his trial in criminal cases.

Now that I have explained ex parte proceedings and default judgment, can you understand why Emeka Ugwuonye told DPA members that DPA could take a decision based on the one-sided account of a woman in marital dispute or domestic violence. Some of you would argue endlessly that DPA must hear both sides before acting. But you forgot there was no way to force the man to give us his side of the case if he is not willing.

Finally, the fact that a judgment was given without hearing the other side does not mean it is an unjust judgment. There are many ways to ensure that ex parte judgments and default judgments are fair and just notwithstanding that they are one-sided in the process that led to them. In other words, even though the process is one-sided, the resulting judgment should not be one-sided – it must be fair and just to all parties.

Next time, I will explain how to ensure that a one-sided process does not result in one-sided justice.

If you really need to learn the law and to make the law work for you instead of working against you, you need to enroll in the DPA law courses coming soon. We have world class law professors to take you on.