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.
REFRENCES
AFE BABALOLA (2003) Interlocutory Injunction and the Enforcement
of Court Judgment, Princeton Publishing Co., Ikeja, Lagos
D.A, Telter, J.H and N.V Australian Business Law (2nd ed.)
Sydney: Prentice Hall.
Ese Malemi (2008), Law of Tort, Princeton Publishing Co., Ikeja,
Lagos.
Fleming, J. (1992), The Law of Tort (8th ed.) Sydney: The Law
Book Company Limited.
Gardiner, D. (1991), Outline of Torts. Sydney, Butterworths.
Gillies, P. (1993), Business Law (5th ed.), Federation Press.
Holmes, D. (1984), Butterworth’s Student Companion-Torts.
Sydney: Butterworths. Latiner, P. (1995), Australian Business
Law, North Ryde: CCH. Smyth, J.E, Soberman,
J.O. FABUNIMI (2006) Equity and Trust in Nigeria 2ed Obafemi
Awolowo University Press Ltd
Kodilinye and Aluko (2005), The Nigerian Law of Torts, Revised
Edition, Spectrum.
Salmond, J.W (1990), Torts, 18th ed. Sweet and Maxwell, London
at para
Top Related