CIRCUMSTANCES UNDER WHICH A DEFENDANT CAN BE GRANTED ANINJUNCTION AGAINST THE PLAINTIFF IN A CASE

WRITTEN BY A.O. IMIETE

ABSTRACT

Injunction serves as an order of equitable nature restraining theperson to whom it is directed from performing a specified act or incertain exceptional circumstances cases requiring him to perform aspecified act1. Injunctions are judicial remedy by which a person isordered to refrain from doing or to do a particular act or thing. Inthe former case it is called a restrictive and prohibitory injunctionand in the latter a mandatory or positive injunction. This workexamines the basis and circumstances under which a defendantcan be granted injunction generally, whether an interlocutory orinterim injunction, although most of the applications for grant ofinjunction are made by the plaintiff. Before looking at thosecircumstances under which the defendant can be granted aninjunction in a case against the plaintiff, it will be necessary toconsider the legal meaning of an injunction, types, the conditionsto be met by any of the party before an injunction can be grantedby the Nigerian courts, the reasons for granting such an injunctionand finally, the work is concluded with a succinct summary andrecommendation.

INTRODUCTION

In legal history, the remedy of injunction was one of thefoundations of the jurisdiction in equity exercised by the Court ofChancery and the Court of Ex-chequer in England .The equitablejurisdiction of the Court of Ex-chequer in this regard was abolishedby the Court of Chancery Act 1841 and by so doing, placing injunctionswithin the exclusive province of chancery’s equitable jurisdictions.This was the situation for almost 13 years. By 1854, however, theCommon Law procedure Act of that year, gave to Common Law Courts a1 Halsbury’s Law of England(3rded) Vol. 21 p 343; PH Pettit, Equity and the lawof Trust(9th)p540

power to grant injunctions in certain cases. Eventually, when thefusion of law and equity was effected by the Judicature Act 1873.Thejurisdiction to grant injunction in all cases in which court of equityor common law could formally grant that relief. Injunction wasintroduced into Nigeria legal system through local legislation2.Ordinance introduced inter alia the doctrines of equity of whichinjunction are a part. The Judicature Acts3 provide that an injunctionby interlocutory order may be granted in all cases in which it appearsto the court to be just or convenient that such an order be made andthat any such order should be made unconditionally or upon such termsand conditions as the court shall think just. Similar statutoryprovisions are contained in the Nigerian legislation specificallyOrder 20 rule 9 High Court (Civil Procedure) Rules4

THE MEANING OF AN INJUNCTION

Injunction is define by the black’s law dictionary5 with

pronunciation as an order commanding or preventing an action. In

a general sense today, every order of a court which commands or

forbids is an injunction, but in it accepted legal sense, an

injunction is a judicial process or mandate operating inparsonam

by which upon certain established principles of equity, a party

is required to do or refrain from doing a particular thing. An

injunction has also been defined as a writ framed according to

the courts regards as essential to justice or restraining an act

which it esteems contrary to equity and good conscience, it is a

remedial writ which courts issue for the purpose of enforcing

their equitable jurisdiction; and a writ issuing by the order and2 Jegede, Principles of Equity (1981)pg 1. 3 Supreme Court of Judicature(Consolidated Act 1925) (1873-1925)4 High Court Law, Cap. 44 Laws of Ogun State (1978)5 Bryan .A.Garner 9th ed (2009) West Thomas Business Reuters.

under the seal of court sitting in Equity6. KARIBI WHYTE, J.S.C

in Babatunde ADENUGA & 5 OTHERS. V. K ODUMEWU & OTHERS10, defined

injunction thus

“...An equitable order restraining the person to whom

it is directed from doing the things specified in

order or requiring in exceptional situations the

performance of a specified act. A claim for an

injunction is a claim in equity’.

While quoting this definition by KARIBI-WHYTE J.S.C,

MUSDAPHER J.C.A (as he then was) in ANNE KADIYA & 2 OTHERS V.

JIBO KADIYA & 2 OTHERS, stressed that an injunction is generally

granted to protect a legal right which is in existence with the

object of keeping matters in status quo until the question at

issue between the parties is determined. The question as to what

principles govern a court in the grant of an injunction was

answered by Adefarasin J. in MARTINS PROPERTY LTD V ALBERT COURY,

as follows:

“the principle under which the court acts with regards

to injunctions is that the court would grant an

injunction for protection of right or prevention of an

injury according to legal principles. The court, prima

facie, would however, not grant an injunction to

restrain an actionable wrong for which damages are the

proper remedy. The court interferes by way of6 Howard C. Joyce, A Treatise on the Law Relating to Injunction (quoted in Black’s Law Dictionary 9th ed)pg.855

injunction to prevent any injury in respect of which

there is a legal remedy, if the injury is irreparable

or if is continuous. Moreover, the court would grant an

injunction even where no damage has been caused. There

must however, be a violation of a legal right in a

substantial way”.

An irreparable injury in the sense that an injury that

cannot be adequately measured, compensated by money and is

therefore often considered remedies by injunction or non-

pecuniary injury. The supreme court in JOHN HOLT NIGERIA LTD V

HOLTS AFRICAN WORKERS UNION OF NIGERIA AND CAMEROUN7 emphasized

the need to keep the principle when the court said: “the

principles upon which the court acts in granting interlocutory

injunctions, to our mind must be strictly observed and, of

course, it is impossible to lay down any general rule by which

the discretion of the court ought in all cases, to be regulated

but it must be borne in the mind that interlocutory injunction

are not granted as of course.”

While the grant of injunction is discretionary, the court will

not grant it, if it not asked for8 or grant one which is wider

than what is sought by the plaintiff.9 But it can be granted if

it is incidentally necessary to protect legal right.10In ADAM V

7 (1963)1 ALL NLR 379 at p.383; 8 Ogbe v Esi (1943)9 WACA 76, Ogboni v Ojah (1996)2 SCNJ 140; Victor Ndoma-Egba v Nname Chukwukeluo & ors (2004)2SC 117 9 Kotoye v C.B.N (1989)1 NWLR 41910 Williams v Snowdown (1880)AN 124

DUKE11 the plaintiff had sought a declaration that he and members

of the Etum Effion House were under no obligation to serve the

defendant in his capacity as Etubom of the Duke house and claim

an injunction to restrain the defendant from attempting to

enforce such an alleged obligation or liability. Webber, J said

“the claim for an injunction must fail. There is nothing to

restrain nor does any reason exist for an injunction. The court

will not restrain the defendant from making assertions. There

must be violation, a real substantial violation of some right

before court grants an injunction”. An injunction will not be

granted to restrain a wife from bearing her husband’s name even

after divorce.12 Furthermore, an injunction will not be granted

where the injury is trial.13 In SAVAGE V AKINRINADE14, an

injunction was refused on the ground that it would cause greater

hardship. In that case, the plaintiff’s right had been obstructed

by the erection of a multi storey building by the defendants and

had sought an injunction that the offending building be removed.

Omolu J; in refusing to grant the injunction, said he appreciated

the importance of the plaintiff but he must also consider the

value of a new storey building containing fourteen rooms and the

hardship which an order for removal would cause, not only to the

defendants but to other tenants now living there. This

demonstrates that equitable remedies may not be granted where

11 (1927)8 NLR 8812 PH Pettit, Equity and the law of Trust(9th)p54013 Behrens V Richards (1905)2 Ch. 61414 (1964)LLR 238

third interests are adversely affected.15 The operation of

injunction illustrates the equitable maxim, equity acts in

persnam. Equity will not allow an act, which is in inconsumable,

morally reprehensible and totally contrary to its notion of

equity and justice to be done just because the act which is done

is outside its jurisdiction provided the person doing the act is

within its jurisdiction and can be served with court process.

Equity proceeds on the basis that the order of injunction is

directed against the person to be restrained and it is an order

impersonam.

Injunction may be divided into perpetual and interlocutory. A

perpetual injunction is only granted after a judicial decision

when the plaintiff has established his right in law and the fact

that the defendant infringed that right or is about to do so. The

effect of the injunction may not necessarily last forever; it

depends on the nature of the right, the protection of which is

sought. An interlocutory injunction on the other hand, is granted

before the final determination of the issues between the

plaintiff and the defendant, where the plaintiff reasonably fears

that the irreparable damage may be done to him before the final

determination of the issues, unless the defendant is restrained

of the act complained of. The essence of interlocutory injunction

is to maintain the status quo of the parties pending the final

determination of the issues. Ex-parte injunction can be granted

where the plaintiff requires urgent and immediate temporary

15 Penn v Lord Baltimore(1750)1 vessen 444

relief and cannot wait till the next motion day. He can apply for

an injunction which will last, which valid until the next motion

day, by which time notice could have be served on the defendant.

He (the defendant) will then have a chance of opposing the

plaintiff’s application for interlocutory injunction. The phrase

ex parte means that the court has not had the opportunity of

hearing the other side.

TYPES OF INJUNCTIONS

In other to know which type of an injunction an applicant is

seeking for, there is need to state here briefly the different

types of injunction, so that the defendant will know which one is

appropriate in any case. It is designed to examine the various

types of injunction available in Nigeria and the purpose they

serve. These injunction are as follows: ranging from ex-parte,

interim, interlocutory, perpetual, mandatory, mareva to anton

piller injunction.

EX-PARTE INJUNCTION

In the annals of Anglo-Nigeria common law, certain principles are

fundamental. One of

such fundamental principal is that no one should be condemned

unheard. ‘AUDI

ALTERAM PARTEM’ meaning ‘LET THE OTHER PARTY BE HEARD’ But in

both criminal and civil proceedings there are certain steps to be

taken which is incidental or preliminary to the substantive case.

Such steps include motion for direction, interim or interlocutory

injunction. The time available for taking the steps may be too

short or an emergency situation may have arisen. It therefore

becomes necessary to take quick action in order to seek remedy

for or arrest the situation. This is the basis of the

jurisdiction of Ex-parte order of interim injunction. In ODUTOLU

V. LAWAL16, the appellants/applicants brought an application for

extension of time to apply to vacate the interim order of

injunction made against them by the trial court and an order

vacating the said order, after a similar application had been

refused by the trial court. The court of appeal, unanimously

granted the application. Per Adekeye, J.C.A stated as follows:

‘An interim order pronounced ex-parte is first and foremost

brought by an who is usually the plaintiff for no permanent

injunction i.e without notice to the other party. It is the

exercise of very extra-ordinary jurisdiction invoke by the courts

in the event of real urgency hence it is regarded as one of the

inherent powers of the court of law for the administration of

justice’. The main attribute of an Ex-parte injunction is that it

is to be granted in circumstances of real urgency. In SECONDI

BOGBAN AND 2 OTHERS V.MOTOR DIWLINE AND 2 OTHERS17, the court

explained the nature of urgency needed to ground the invocation16 (2003)1NWLR (pt. 749) 63317 17 (2005)16 NWLR (pt. 951) 274

of the Ex-parte order of interim injunction. In that case,

appellants challenged the propriety of granting an interim order

of injunction in the circumstances of the suit and the refusal to

discharge the order by the trial high court when no urgency was

shown by way of affidavit as to urgency and no undertaking as to

damages was extracted from the respondents when the order was

granted. In allowing the appeal, the Court of Appeal per Abba

Aji, J.C.A held inter alia. ‘The basis therefore for granting an

ex-parte order of injunction is the exercise of special

circumstances, invariably, all prevailing real urgency which

requires that the order must be made, otherwise an irretrievable

harm or injury would be occasioned to the prejudice of the

applicant’. So in a situation of real urgency, where the res may

be irreversibly destroyed or damaged before service of a motion

paper can be effected, the law allows a motion ex-parte for

interim order of injunction to be filed.

INTERIM/INTERLOCUTORY INJUNCTION

If there was an area of law which created perennial problem for

lawyers and judges, it was the practice and procedure for the

grant of interim and interlocutory injunctions. This was due to

great deal of confusion and conflicting principles adopted by

courts in deciding whether or not to grant interim or

interlocutory injunction pending the determination of the

substantive suit. It was held that the applicant a probability of

a strong prima facie case entitling to the right violation of

which he complains. Some other time, the plaintiff was required

to show at least that he was likely to succeed at the trial.

Again there was the principle that it was not necessary that a

plaintiff should make out a case as he would do on merits but

that he should establish that there was a substantial issue to be

tried at the hearing. In the confused arena, the court usually

looks at the conflicting affidavits and resolve issues which

should have been decided ultimately at the trial.

MANDATORY INJUNCTION

A mandatory injunction or positive injunction is an order of a

court requiring a party to do a specific act or action. It is a

direct opposite of prohibitory order of injunction which is made

to preserve the res pending the determination of the substantive

claim or to stop the defendant from repeating the wrongful

conduct which is the subject matter of the complaint. In most

cases, mandatory injunction to undo what has already been done.

Accordingly mandatory injunction is also referred to as the

restoratory injunction. Even where damage has not occurred, a

mandatory injunction invariably involves the doing of an act

which will involve the defendant. Although, mandatory injunction

is generally granted in an interlocutory application, it must be

stated that in clear and deserving cases, it may be granted ex-

parte. Originally, all injunctions were negative in form and

restrictive in content. Mandatory injunctions were not issued

until the late 19th century. The principles governing the

granting of mandatory injunction are different from those

applicable to the granting of prohibitory interlocutory

injunction. The distinction between orders of mandatory

injunction a prohibitory injunction was lucidly stated by the

Court of Appeal in MODILE & ANOR V. THE GOVERNOR OF LAGOS STATE &

ORS18. In dismissing the appeal the court of appeal held inter

alia per Chukwuma Eneh J.C.A as follows

‘An injunction to restrain is usually negative and

restrictive in nature whereas an order for

mandatory injunction, though directed against

completed acts has to be positive in form, that

is, it directs a positive act with a view of

restoring the condition of things in the matter to

the situation before the application for the

injunction’. It should be noted however that a

mandatory injunction is essentially an equitable

relief, it is therefore discretionary and when the

infringement complained of by the plaintiff can be

remedied by any means other than the order, the

court should apply that other means.

MAREVA INJUNCTION

Mareva injunction came about as a remedy against a particular

evil and abuse of the defendant who causes his assets to be

removed from jurisdiction or disposes of same before judgment.

18 (2004) 12 NWLR (PT 887)

Explaining the basis of the mareva injunction jurisdiction, Golf,

j in the case A. v. C19 of pertinently stated as follows: ‘The

principle underlying the jurisdiction is the prevention of an

abuse, the abuse of a foreign residence causing assets to be

removed from jurisdiction in order to avoid the risk of having to

satisfy any judgment which may be entered against him pending

proceedings in this country’. It must be stated that mareva

injunction will be granted not only in cases where the defendant

intends to remove his assets from the jurisdiction of the court

but also in cases where the granting of a mareva injunction will

provide some of security to the plaintiff and whenever it is just

or convenient to do so. According to the Supreme Court in A.I.C v

NNPC20

‘the court has jurisdiction to grant a mareva injunction in favor

of a creditor who has a right to be paid the debt owing to him

even before he has established his right by getting judgment for

it, if it appears that the debt is due and owing, and there is

danger that the debtor may dispose of his assets so as defeat the

debt before judgment…… a mareva injunction operates to stop a

defendant against whom a plaintiff has a arguable claim from

disposing of or dissipating his assets pending the determination

of the case or pending payments to the plaintiff. The injunction

can also be granted against anybody who is in possession of the

19(1980) 2 ALL ER 347 AT 351 20 (1988) 2 ALL ER 77

defendant’s assets. In the instant case, if the appellants had

funds in the custody of the respondent, a mareva injunction was

grantable in its favor to restrain the respondent from disbursing

the funds to Mannesmann. However, there was no sound evidence

that the appellant had any fund with the respondent’. The mareva

injunction jurisdiction cannot be justified on the basis of the

preservation of the ‘res’ in the case because in most cases the

assets sought to be enjoined do not and cannot form the subject

matter of the substantive suit. Nigeria courts have accepted and

adopted the MAREVA INJUNCTION decisions of the English courts in

both NIPPON NUSEN KAISHA V. KARAGEORGIS57 AND MAREVA COMPANIES

NAVIERA S.A V INTERNATIONAL BULKEARRIERS S.A.

ANTON PILLER INJUNCTION

The law of injunction clearly experienced a remarkable revolution

in English law in the year 1975. The year witnessed the evolution

of the American Cyanamid principles in interlocutory injunction;

the mareva injunction and lastly the Anton Piller injunction. The

Anton Piller injunction received the warm embrace of English

court because of the fact that it is founded on justice. The

Anton Piller injunction is related to mareva injunction treated

in the last chapter, but is nevertheless inherently and

practically different. This specie of injunction is named after

the leading case of Anton Piller KG v Manufacturing Process

LTD63, its forerunner is order 29 rule 2 of the rules of supreme

court of England which merely allows the court upon an

application inter partes to authorize one party to enter upon

premises. M,Lowned by another party and inspect property being

kept there. Because the jurisdiction provided by the rules is

only exercisable upon an application which is on notice to the

other party there is real likelihood that the defendant would

have disposed of or otherwise destroyed the property or any

infringing article subject matter of the litigation alleged to be

in his custody before the application was heard and thus

presenting a fait accompli to both the plaintiff and court. It

must be realized that the jurisdiction of the court to grant

Anton Piller injunction poses a serious threat to the defendants

constitutionally guaranteed rights to privacy guaranteed by

section 37 of the 1999.

PERPETUAL INJUNCTION

A perpetual injunction is generally a post trial relief. It is

usually granted after a full trial of the case on the merits

except when the parties have consented to the court granting a

perpetual injunction by way of consent judgment in which case no

trial would take place. It is directed towards the final

settlement and enforcement of the rights of the parties which are

in dispute. The distinction between different categories of

injunction was beautifully illustrated by Niki Tobi, JCA (as he

then was) a highly gifted judge, in ADENIRAN V. ALAO21 when he

21 (1992)2 NWLR (Pt 223) P. 350 at 372

said: ‘While a court of law can grant an interim injunction ex-

parte in exceptional cases of extreme urgency to preserve the res

or status quo, and while a court of law can also grant an

interlocutory injunction where the applicant inter alia shows the

existence of a legal right and need to protect that right, the

relief of perpetual injunction, as the name itself implies is the

largest of the three reliefs,….. Putting it in another language

an interim injunction stop where an interlocutory injunction

begins and an interlocutory injunction stops where a perpetual

injunction begins in perpetuity. I have taken the trouble to draw

the distinction to emphasize the nature and the almighty role

perpetual injunction plays in the judicial process. In my humble

view, a court of law cannot grant a perpetual injunction on a

mere prima facie case. Perpetual injunction cannot be granted on

speculation or conjecture on the part of the trial judge that the

plaintiff seems to have proved his case. Perpetual injunction

before of its very nature of finality can only be granted if the

plaintiff has successfully proved his case on the balance of

probability or the preponderance of evidence’. The aim is to

protect an established right. A perpetual injunction is an

ancillary relief. It is granted to protect an established right

at law or in equity. If the substantive right had not been

established, no injunction would be granted. The court will not

grant perpetual injunction unless there is a specific relief

endorsed on the plaintiff’s writ or included in the statement of

claim. This is in accord with the well established principle that

a court has no jurisdiction to grant a party the relief which he

has not claimed. However, when the intention is already apparent

in the nature of the case, the court may grant specific relief

for same, such was the case in

CONDITIONS TO BE MET BY ANY OF THE PARTY BEFORE AN INJUNCTION CANBE GRANTED

As stated earlier the grant of an injunction is

discretionary but this discretion must be exercised in accordance

with established principles. Previous before an injunction could

be granted, an applicant required to establish a prima facie case

that his rights had been infringed, that damages would not be an

adequate remedy and that the balance of convenience favoured him.

This principle was firmly established by the House of Lord in J.

T STRATFORD & SONS LTD V. LINDLEY.39 and the principle was

adopted by the Supreme Court in LADUNNI V. KUKOYI& ORS.40 when

Coker J. S. C said. 41

“ The principle seems to us to be clear and in short

an interim injunction would be granted to a party who

shows that he has a prima facie case on a claim of

right or in other words that prima facie, the case he

has made out is one which the opposing party would be

called upon to answer and that it is just and

convenient to the court to intervene and that unless

the court so intervenes at that stage the other party’s

action or conduct would irreparably alter the status

quo or render ineffective any subsequent decree of the

court”

Later, in the Globe Fishing Industries Ltd v. Coker, 42

Nnameka-Agu, J. S. C said.43

“Formerly the court contended that an applicant for an

order of interlocutory injunction, in order to

succeed, had made out a prima facie case22 or a strong

prima facie case;23 or show a probability that the

applicants are entitled to relief.24 Later, an attempt

was made to reconcile the apparently conflicting

decisions by holding that the need to show a

probability of entitlement to relief or a strong prima

facie case applied only to the establishment of the

22 Ladunni v, Kukoyi Ors. (1972) SC 33P3723 Harman pictures N.V v Osborne I WLR 723; Smith v, Grigg Ltd. (1924) 1 KB 65524 Preston v. Luck (1884) 27 Ch D 497 at p 506.

applicant’s right whereas to show a violation of it,

the applicant needed only to show that he had an

arguable case to be tried.25As observed in KOTOYE’S

case, all the conflicts in the old cases were

eventually laid to rest by the House of Lords in the

case of “RE-AMERICAN CYANAMID”. On the question

whether a prima facie case applied only to

establishment by the plaintiff of his right and the

lesser burden of showing an arguable case applied to

the alleged violation of that right by the defendant,

the House of Lords in AMERICAN CYNAMID CO V. ETHICORN

LTD. 44 said:

“An attempt had been made to reconcile these

apparently differing approaches to the exercise of the

discretion by holding that the need to show a

probability or a strong prima facie case applied only

to the establishment by the plaintiff of his right,

and that the lesser burden of showing an arguable case

25 Donmar Productions Ltd v. Bat (1967) 1 WLR 740, P HUBBARD V. Vosper (1977) 2Q. B 84.

to be tried applied to the alleged violation of right…

The suggested distinction between what he must show as

respects its violation did not long survive.”

Since this is an exercise of discretion, it ought not to be

fettered in the manner being advocated. The House of Lords 45

rejected the use of such expressions as a probability” “a prima

facie case” or a strong prima facie case in the exercise of a

discretionary power to grant an injunction. Lord Diplock stated

the principles governing the grant of an injunction as follow

“When an application for an interlocutory

injunction to restrain a defendant from

doing acts alleged to be in violation of

the plaintiff’s legal right is made on

contested facts, the decision whether or

not to grant an interlocutory injunction

has to be take at a time when ex

hypothesis the existence of the right or

the violation of it or both is uncertain

and will remain uncertain until final

judgment is given in the action. It was to

mitigate the risk of in-justice to the

plaintiff during the period, before that

uncertainty could be resolved that the

practice arose of granting him relief by

way of interlocutory injunction; but

instead the court held 47 that the

applicant only needed to satisfy the court

that his claim is not frivolous or

vexatious; in other words, that there is a

serious question to be tried. This is

because the applicant is neither expected

at that stage to establish his case, nor

is the court required to go into the merit

at that preliminary stage. The court has

therefore moved away from the prima facie

case situation to a position that an

applicant is only required to show that

there is a serious question to be tried”

This is now the position in Nigeria as the Supreme Court said in

GLOBE FISHING INDUSTRIES LTD v. COKER 48

“In point of fact the case of Cynamid.

V.Ethicon Ltd ( supra) was cited with

approval by this court in the case of

Obeya Memorial Hospital v. Attorney-

General of the Federation and Anor (1987)

3 NMLR ( part 60 ) 325 at p 337. This

should be a final signal that even in his

country, the old order has changed,

yielding place to the new. This is as it

should be”

This modern approach requires the applicant for injunction to show

that there is a serious question to be tried, that compensation will

not be an adequate remedy for temporary inconvenience and that the

balance of convenience is in his favour. As indicated earlier the

applicant must show that there is a serious question t to be tried.

He is required to establish facts that will entitle him judgment at

this preliminary stage of trial26if only to convince the court there26 Oyeyemi v Irewole Local Government Area(1993)1NWLR (Pt.270)462

is a serious issue to be tried. It has been suggested that the facts

that affidavits conflict in an application for an injunction supports

rather than derogate from the facts that there are substantial issues

to be tried.27 The applicant after establishing that there is a

serious question to be tried at the trial he must then show that

damages will not be adequate to compensate him for loss he would

suffer if he is not granted an injunction to restrain the

respondent.28 Lord Diplock said:29inter alia

the governing principle is that the court should first consider

whether if the plaintiff were to succeed at the trial in

establishing his right to permanent injunction he would be

adequately compensated by an award of damages for loss he would

have sustained as a result of the defendants continuing to do

what was sought to be enjoined between the time of the

application and the time of the trial. If the damages in the

measure recoverable at common law would be adequate remedy and

the defendant would be financial position to pay them, an

interlocutory injunction should normally be granted, however

27 Afe Babalola Injunctions and the enforcement of court judgment.28 American Cyanamid V Ethnicon (1992)2 NWLR (pt 229) 31529 Ibid.

strong the plaintiff’s claim appeared to be at that stage. If on

the other hand, damages would not provide an adequate remedy for

the plaintiff in the event of his succeeding at the trial court

the court should then consider whether on the contrary hypothesis

that the defendant were to succeed at the trial in establishing

his right to do that which was sought to be enjoined, he would be

adequately compensated under the plaintiff’s undertaking as to

damage for loss he would have sustained by being prevented from

doing so between the time of the application trial and the time

for trial. If damages in the measure recoverable under such an

undertaking would be an adequate remedy and the plaintiff would

be in financial position to pay them, there would be no reason on

this ground to refuse an injunction”

The applicant is also required to show that the balance of

convenience is on his side. But this is required where there is a

doubt as to the adequacy of the respective remedies in damages

available to either party or both. The Supreme Court’s view in

KOTOYE V CBN30 that the balance of convenience must be considered

after the applicant has established that there is a serious issue

30 (1989)NWLR(PT 98) 419

to be tried is erroneous. This use of this phrase “balance of

convenience” has been criticized on the ground that the business

of the court is justice and not convenience31 the applicant must

give an undertaking as to cost.32 If the injunction is granted

the applicant cannot establish his case, he will be liable to the

respondent for all the loss the respondent might have suffered as

a result of the injunction.

A party seeking the remedy of an injunction must come with clean

hands because of the maxim that “he who comes to equity must come

with clean hands”33 an applicant whose hands are not clean is not

entitled to the remedy of injunction. Thus in LILVINOFF V KENT34

a land lord reserved the right of re-entry in a lease agreement

in the event of breach of the covenant to pay rent. The tenant

had not breached the covenant to pay the rent but had breached

other covenants and had used the property for illegal purpose.

The court refused a claim for an injunction on the ground that

the claimant has not come with clean hands. Thus, in the case of

31 Ibid.32 Sotimnu v Ocean Steamship Nigeria Ltd (1992) 5 NWLR (pt 239)33 Equitable maxim34 (1832)34 TLR 298

BLACKMORE V GLAMORGANISHIRE CANAL NAVIGATION35 Lord Eldon said:

many cases have occurred in the which injunctions are applied for

and are granted or refused, not upon ground of the right of

possession by the parties, but upon the ground of their conduct

and the dealings before they applied to the court for injunction

to preserve and protect that right.

REASONS FOR GRANTING AN INJUNCTION TO AN APPLICANT

The process of calling the court into action in most

countries takes time and this is also the same in Nigeria owing

to the peculiar state of affairs in Nigeria. Calling the court

into action to determine the suit. In law, this subject matter is

commonly referred to as the “res”. The res in deserving

circumstances would need to be preserved from waste, destruction

or dissipation by any of the parties. An exposition of the

meaning of RES and the significance of its preservation can be

found in MUHAMMADU BUHARI AND 2 OTHERS V. CHIEF OLUSEGUN OBASANJO

AND 267 OTHERS.36 In that case per BELGORE, J.S.C (as he then

was) held inter alia on the meaning of RES; ‘In general parlance

“res” means “thing” in reference to a thing, known or unknown. It

also means affair, matter or circumstance in legal contest,“res”

generally refers to subject of the right Complained of by the

applicant’ was made available to every branch of the High Court35 (1832) 1 MY K 15436 1 (2003)17 NWLR(PT. 850)587 S.C

Justice under the Act. The need for litigants to get justice

before their rights are been infringed upon by some people

prompted the court to develop this injunction

CIRCUMSTANCES UNDER WHICH A DEFENDANT WILL BE GRANTED AN

INJUNCTION AGAINST A PLAINTIFF IN A CASE

It is a trite principle of law that the party who bring an

action is describe in civil law as a plaintiff. The Encarta

dictionary37defines a plaintiff as “somebody who brings a lawsuit

against somebody else in a civil court.” However, the black’s law

dictionary38defines it as a party who brings a civil suit in a

court of law. He is the claimant, he complains of jury to a right

which he wants the court to remedy. On the other hand a defendant

is defines as by the same dictionary39 A person sued in a civil

proceeding or accused in a criminal proceeding. It therefore follows

from the above that it is the plaintiff who usually sought for an

injunction. However, as stated earlier that any of the party can

apply for an injunction, it therefore means that a defendant can

apply for an injunction so long as he fulfill the requirements

above the court will grant. In the case of THE PRAYING BAN OF THE

SACRED SOCIETY OF CHERUBIM AND SERAPHIM CHURCH & 3 ORS V NATALIE

ELLEN UDOKWU40 the court was face with issue whether a defendant

37 Microsoft® Encarta® 2009. © 1993-2008 Microsoft Corporation.38 supra39 Bryan A. Garner (2009) BLACK’S LAW DICTIONARY 9THED WITH PRONUNCIATION PG(853)40 (1991)3 NWLR (PT. 182) 716

can be granted an injunction against the plaintiff in a case,

Justice Kutigi of the Court of Appeal (as he then was) said:-

“ it is a settled law that a defendant may

apply for an injunction before judgment if

the application as in this case, is connected

with the purpose of the plaintiff’s action or

if the relief seeks arises out of the relief

sought by the plaintiff..it is only when the

relief sought is unconnected with the

plaintiff’s case that the defendant is

required to file or give notice of his

counter-claim first before making his

application..”

In this case the court granted the defendant an interlocutory

injunction because the defendant’s application is connected with

the land in dispute and the defendant’s relief arose out of the

reliefs sought by the plaintiff. A defendant may be granted

interlocutory injunction by the court even when he has not file a

counter-claim or has not notice of counter-claim. In the cases

where the application is connected with the purpose of the

plaintiff’s action or the relief sought by the defendant arises

out of the relief sought by the plaintiff, the defendant may be

granted an order of injunction even though he has not file notice

of counter-claim.41

41 Praying Band C & S V Udokwu (1991) 3 NWLR (PT. 182) 719 at 720

To further emphasis the right of a defendant to be granted an

injunction in some certain circumstances the court in Re-

Praying Band42per Justice Kutigi said that:

“Courts in this country have over the years

granted interlocutory injunction to the defendants

in appropriate cases as outline above. What of the

countless of land or property suits where

defendants are in occupation? SHOULD A DEFENDANT

JUST FOLD HIS ARMS AND ALLOW A PLAINTIFF TO

TRESSPASS, DISTURB, RUIN OR DESTROY THE PLACE

MERELY BECAUSE HE HAS NO COUNTER-CLAIM BEFORE THE

COURT? MY ANSWER IS NEVRE! There is generally no

compulsion on the defendant to counter-claim where

there is none. The burden is on the plaintiff to

prove his claims before the court”

It is now clear that there are circumstances under which an

injunction can be granted in favour of the defendant and they are

as follows:-

Legally recognize principle of official & privilege

communication: one clear instances were a defendant may

applies and obtain an injunction is the legally recognized

principle of official and privilege communication as

expressly encapsulate in Section 191 & 243 of the Evidence

Act43where the evidence sought to be tended by the plaintiff42 Ibid43 (2011) cap 222 LFRN

is against or will affect the security of the state

adversely or public interest negatively. Thus in the case of

MORONU V BEN & 8 ORS44 the court upheld the counter-

affidavit of the electoral officer who apply that the prayer

of the applicant for the production of certain electoral

material should not be granted and sought for an

interlocutory injunction restraining the plaintiff from

getting such material on the basis of public interest. The

court grants the defendant the interlocutory injunction.

Where there is a counter-claim:- it is a trite law that a

defendant can make application by claims and counter-claims,

defenses and replies, appeals and cross-appeals as exemplify

by the Cross-Rivers State High Court Civil-Procedure

Rules45. Thus in the case of PRAYING BAND C&S V UDOKWU46 the

respondent as an administrix of the estate of her deceased

husband instituted and action that led to his appeal against

the appeallants as defendants claiming a declaration that

she is entitled to and possesd of all that parcel or piece

of landed property situated along Abakpa Nike road as plot

C of Nnaji layout Enugu, the sum of N10,000 being general

damages for trespass and an injunction restraining the

appellants from entering the said land. At the commencement

of hearing, the appellants brought an application for order

44 (1996)NWLR45 (2008) ORDER 17, RULE 2146 (1991) 3 NWLR (PT 182)717

of an injunction to restrain the respondent. The trial court

grant the application on the condition that the defendant

deposit a sum of N10,000.00 in court, dissatisfied with the

part of the ruling ordering them to deposit N10,000.00 the

defendants appeal. The plaintiff cross-appeal against the

ruling contending that the trial judge erred in the making

an order of interlocutory injunction on the application of

the defendants who neither counter-claim nor gave notice of

the same whereas such an order though at the discretion of

the court can only be granted on the application of a

plaintiff in a substantive suit. The Court of Appeal had to

construe the relevant provisions of order 21 rules 1 and 4

of the High Court Rules47 dismissed the appeal and upheld

the judgment of the trial court. Similar decision was held

in the case of WILFRED PREREPIMODE & 3 ORS V SUOKUM

MIEKORO48

Where there is a stay of execution of a court judgment:-

under the relevant rules of the High Court, Appeal Court and

Supreme Court, a defendant can apply to the court that gave

the judgment or a court of superior jurisdiction for

interlocutory injunction for stay of execution of the

judgment for the judgment obtain by the plaintiff pending

47 Cap 16 Laws of Eastern Nigeria 1963 as applicable in Anambra State.48 (1992) 2 NWLR

the determination of the application of the appeal. This was

well illustrated in the case of HALILU AKILU V FAWEHEMINI49

Where an irredeemable damages will be occasion to the

defendant:- if the interlocutory application is not granted

to defendant it will occasion harm to his person, property,

business or profession. The court exercising it jurisdiction

may vacate an interlocutory application granted to the

plaintiff were from the facts and circumstances of the case

the interest of the defendant will be more prejudice than

that of the plaintiff,50 In SAVAGE V AKINRINADE51, an

injunction was refused on the ground that it would cause

greater hardship. In that case, the plaintiff’s right had

been obstructed by the erection of a multi storey building

by the defendants and had sought an injunction that the

offending building be removed. Omolu J; in refusing to grant

the injunction, said he appreciated the importance of the

plaintiff but he must also consider the value of a new

storey building containing fourteen rooms and the hardship

which an order for removal would cause, not only to the

defendants but to other tenants now living there. This

demonstrates that equitable remedies may not be granted

where third interests are adversely affected.

49 (1996) 5NWLR (PT 258) 27650 Htt//indiankanoon.org/doc/1097558 RAMAN V GOWDAPPA (1988)1651 (1964)LLR 238

Also, were legally speaking, the plaintiff by fraudulent

misrepresentation of facts to the court obtain an injunction

by error against the defendant even where he is at default,

the defendant will suffered more if the injunction

application is granted can apply to the court and obtain

one.52

Where there is a garnishee order pending appeal on his

account.53

CONCLUSION

It had been established through the cases that any party to a

suit can bring an injunction as long as is in line with the laid

down rules. It now well settled in law that a defendant can bring

an application for an injunction and the court will grant it for

his favour in certain or under certain circumstances. While a

court of law can grant an interim injunction ex-parte in

exceptional cases of extreme urgency to preserve the res or

status quo, and while a court of law can also grant an

interlocutory injunction where the applicant inter alia shows the

existence of a legal right and need to protect that right, the

relief of perpetual injunction, as the name itself implies is the

largest of the three reliefs,….. Putting it in another language

an interim injunction stop where an interlocutory injunction

52 Nigerian Cement Company Limited v Nigerian Railway Corporation and Liver Brothers Nig Ltd (1991) NWLR (PT 741)53 Okechukwu V Okechukwu (1989) 3 NWLR (PT 108)P.234

begins and an interlocutory injunction stops where a perpetual

injunction begins in perpetuity. I have taken the trouble to draw

the distinction to emphasize the nature and the almighty role

perpetual injunction plays in the judicial process. In my humble

view, a court of law cannot grant a perpetual injunction on a

mere prima facie case. Perpetual injunction cannot be granted on

speculation or conjecture on the part of the trial judge that the

plaintiff seems to have proved his case. Perpetual injunction

before of its very nature of finality can only be granted if the

plaintiff or defendant has successfully proved his case on the

balance of probability or the preponderance of evidence.

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at para