JUDICIAL REMEDIES

CONTENTS

1.0       Introduction

2.0       Objectives

• Main Content
• Analysis of Section 42 of the 1979 Constitution, Section

44 of the 1989 Constitution and Section 45 of 1999 Constitution

• Prohibition and Certiorari
• Mandamus
• Habeas Corpus
• Injunction
• Summation and Comments on Judicial Remedies
• When Injunction will be Refused

4.0       Conclusion

5.0       Summary

6.0       Tutor-Marked Assignment

7.0       References/Further Readings

INTRODUCTION

In no part of the constitution can be found provisions relating to constitutional remedies except in relation to section 42 of the 1979 Constitution and section 44 of the 1989 Constitution with the side note "Special jurisdiction of High Court and legal aid".

Having regard to the above, the option left is to consider some recognised constitutional remedies. Such remedies include certiorari, prohibition, mandamus, habeas corpus, injunction and declaration. It is necessary to start with the general remedy relating to breach of fundamental human rights.

OBJECTIVES

At the end of this unit, you should be able to: identify judicial remedies

differentiate between the different types of remedies available to an aggrieved person

identify the historical circumstances that brought about all the remedies.

MAIN CONTENT

Analysis of Section 42 of the 1979 Constitution

 and Section 45 of the 1989 Constitution

Section 42 of the 1979 Constitution provides:

"Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress."

The chapter in focus deals with Fundamental Rights. From this section,  a person has the right to go to a High Court for redress where there is an apprehension that his right may, has been or is being trampled upon.

In furtherance of this objective, section 42(2) of the constitution provides:

"Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such direction as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights to which the person who makes the application may be entitled under this chapter."

Sub-section (3) of this section empowers the Chief Justice of Nigeria to make rules with respect to the practice and procedure of a High Court for the purposes of this section. In line with this, the  Fundamental Rights (Enforcement Procedure) Rules, 1979 were made. Its date of commencement was put at 1st January, 1980.

The Rules contain the requisite procedure for the enforcement of one's Fundamental Rights under the Constitution. For example, Order 1 Rule- l requires that leave of the court must first be sought by an ex parte application to the appropriate court. This must be supported by a statement setting out the name and description of the applicant,  the relief sought, the grounds on which it is sought and supported by an affidavit verifying the facts relied on.

The court may impose such terms as to giving security for costs as it or he thinks, fit. The granting of leave under this rule shall operate as a  stay of all actions or matters relating to or connected with the complaint until the determination of the application or until the court or judge otherwise orders^l.

In the language of Order I Rule 3(1):

"Leave shall not be granted to apply for order under these Rules unless the application is made within twelve months from the date of the happening of the event, matter, or act complained of, or such other period as may be prescribed by any enactment or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the  court or judge to whom the application for leave is made."

After leave has been granted to apply for the order being asked for, the application for such order must be made by notice formulation or by originating summons to the appropriate court. Unless the court or judge granting leave has otherwise directed. There must be at least eight clear days between the service of the motion or summons and the day named therein for the hearing. In the motion must be contained an affidavit giving the names and addressee of, and the place and date of service on, all persons who have been served with the motion or summons. This must be filed before the motion or summons is listed for hearing, and, if any person who ought to have been served has not been served, the affidavit must state the fact and the reason why service has not been effected, and the said affidavit shall be before the Court or judge on the hearing motion or summons.

There are other provisions in the Rules relating to enforcement of fundamental rights.

As stated above, the constitutional remedies usually asked for are Prohibition, certiorari, mandamus, habeas corpus, injunction and declarations. Notwithstanding the fact that these remedies are not specifically mentioned, they could be made use of In Burma v. Usman Sarki, Udo-Udoma pointed out that:

".In the absence of a prescribed procedure for attacking the exercise of powers by a Minister, the normal civil processes and the principles of general law, including the prerogative orders, are of course, available to be invoke to advantage by any aggrieved person whose rights have been in fringed.

These remedies will now be examined.

Prohibition and Certiorari

These two remedies are of great constitutional importance. The orders  of Prohibition and certiorari could be discussed together. Prohibition  can be used as a way of preventing the performance of an administrative action which is judicial in nature. Certiorari enables a superior court or tribunal to call upon an inferior court or tribunal to certify the record upon which the inferior court or tribunal based its decision of a judicial or quasi-judicial nature. In R. v, Electricity Commissions Ex parte London Electricity Joint Committee CO. Lord Atkin held:

"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the Queen's Bench Division exercised in the writs."

Thus where the act complained of is judicial in nature certiorari or prohibition can be made use of. Where the act has not been concluded  or where a decision has not been reached, prohibition is the appropriate remedy to ask for. In the case of a concluded act, certiorari is the appropriate remedy. Adeoba J. explaining when certiorari will lie as a remedy held in Owolabi & 2 Ors. v. Permanent Secretary, Ministry of Education thus:

• If the respondent has authority to determine the issue and also has a duty to act judicially in coming to a decision then an order of certiorari will lie against the respondent if it exceeded its jurisdiction or acted contrary to the rules of natural justice
• It is essential that the person or body to whom the order is to be directed must have authority to determine the issue i.e. it must be a tribunal
• If the body is held to be a tribunal the question arises as to whether the tribunal is bound to act judicially
• If the body or person is bound to act judicially, if it exceeds its authority then its act can be removed by an order of certiorari for the purpose of having it quashed.

In the Queen Ex Parte Ojiegbo Ikoro of Ngodo V. The Governor  Eastern Region & 5 Anor, in 1955, a Native Court presided over by a District Officer, gave judgment against the respondent declaring the appellant to be the owner of certain land and granting him an injunction. The appeal from that decision was heard by a senior officer, who varied the judgement by dividing the land between the parties and by enjoining each party against trespass on the other's land as divided.

The Senior District Officer had no jurisdiction to hear an appeal from a Native Court which had been presided over by a District Officer. The governor dismissed an appeal from the Senior District Officer's decision. The appellant instituted proceedings in the High  Court; Eastern Region for an order of certiorari for the purpose of bringing into court the judgements of the Senior District Officer and of the Governor and having them quashed.

The High Court refused to make the order nisi absolute, upon the ground, the Senior District Officer having no jurisdiction to hear the appeal, the proceedings were an absolute nullity and certiorari does not lie in such circumstances, The appellant appealed to the Federal Supreme Court. Before the Federal Supreme Court the respondent contended that as the appellant had submitted to a hearing by the Senior District Officer he could not object later to his want of jurisdiction to hear the appeal or, alternatively, that the court, in its discretion, should refuse the order of certiorari. The Court held that certiorari could lie to quash a decision of a Senior District Officer, who without jurisdiction heard an appeal from a native court. The Court also held that the governor’s confirmation of the decision of a senior district officer without jurisdiction was liable to being quashed by certiorari.

In the Queen: Ex Parte Laniyan Ojo ll. Governor-in-Council Western Region, one Lawani Kehinde was appointed to chaplaincy which came within the provisions of Part N of the Western Nigeria Chiefs Law, 1957, which appointment was approved by the Governor-in-Council by Notice dated July 20th 1959, published in the Gazette of 6th August, 1959. The appellant applied to the High Court for an order of certiorari against the (Governor-in-Council for the purpose of quashing the approval of the appointment of Lawani Kehinde. The application was made on the ground:

• that the Governor-in-Council had no jurisdiction to grant approval to the said appointment which was made without complying with section 11 of the Chiefs Law 1917, and consequently not an "appointment" within the Chiefs Law 1957;
• that before granting the said approval and recognition the Governor-in-Council failed to act judiciary by failing to consider a petition protesting against the Iid "appointment" forwarded to the Governor-in-Council as soon as the Labebe Ruling House knew of Lawani Kehinde's recommendation for approval. The court held inter alia that despite express words taking away certiorari, the court issued. It for manifest defect of jurisdiction in the tribunal which made the order under review.

Dr. Smith' has rightly highlighted the grounds for awarding certiorari and prohibition. They are: (a) Lack of jurisdiction

• Breach of the rules of natural justice or in relation to Nigeria, non observance of the provision of section 33 of the 1979 Constitution.

(c)        Error of law on the face of the record. (d) Fraud or collusion.

Mandamus

The essence of the order of mandamus is the need to secure judicial enforcement of public duties. In R. v Lord Mansfield, it was held that:

"it was introduced, to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where justice and good government there ought to be done."

In Banjo & Ors. v. Abeokuta Urban District Council, section 3(1) of the Abeokuta District Council (Control of Traffic) Bye Laws provided thus:

"no person shall operate or cause to be operated any stage or hackney carriage within the area of the jurisdiction of the Council save under and in accordance with a permit issued by the Council."

The applicants who were taxi owners, applied to the respondent council for permits to operate their taxi cabs in the area of jurisdiction of the Council. They paid necessary fees and filled the required forms. The Secretary to the Council replied that in view of the large number of taxis operating in the Council's area of jurisdiction, no further permits would be issued.

In an application in the High Court for an order of mandamus to be directed against the respondent council to compel the Council to issue the permits to the applicants, it was on behalf of the .applicants that section 3(1) of the Abeokuta Urban District Council (Control of Traffic) Bye Laws gave the respondent council no discretionary power as they were bound to· issue taxi permits and had no discretion to refuse after necessary fees had been paid and required forms filled. It was held that the power of the High Court to grant an order of mandamus was discretionary and that it could only be granted against a person bound to perform a duty of a public nature. The Court laying down a general rule in this respect held further that if a body against whom an order of mandamus is sought is shown to have departed strictly from the conditions laid down in the law empowering that no body to perform its public duty, an order of mandamus would lie against it to compel it to act according to law. The court reached a similar decision in  The  Queen, Ex Parte Chief Sunday Odje & Ors v. Western Urhobo Rating Authority to. The applicants had appealed against a tax assembly by the respondents. They subsequently brought this application asking for  leave of the court to apply for an order of mandamus to compel the respondents to grant a stay of execution i.e. not to collect income taxes from the applicants until their appeals against assessments are heard. It was argued for the applicants that by virtue of section 51 (I) (b) of the Western Region Income Tax Law, Western Region Cap 48, a stay of collection, was automatic once an appeal against an assessment of tax had been lodged~ that the application was for an order of mandamus to compel the respondents to grant the stay of collection and not merely an application for such a stay. The court held inter alia that the power to make an order of mandamus is a discretionary one which will not be exercised by the court unless there is imposed upon the person against whom the order is sought a public duty to do the act sought to be compelled to be done. The court further held that an order of mandamus will not lie to compel a person to do an act which is in his general discretion to do or to refrain from doing. 

Habeas Corpus

Section 32 of the 1979 Constitution provides that:

"Every person shall be entitled to his personal liberty and no person  shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:

• in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;
• by reason of his failure to comply with the order of a court or in order to secure the fulfillment of any obligation in posed upon him by law:
• for the purpose of bringing him before a court in execution of the order of a court upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
• in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare;
• in the case of a person suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants for the purpose of their care or treatment or the protection of the community; or
• for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto

Provided that a person who is charged with an offence and who has  been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a person longer than the maximum period of imprisonment prescribed for the offence".

Thus, where a person is kept in an unlawful custody, he has the right to ask for his personal liberty. The appropriate remedy to seek in this regard is a writ of habeas corpus. Lord Birkenhead describing this order in Secretary of State for Home Affairs VS. 0' Brien held:

"It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It has through the ages been jealously maintained by courts of Law as a check upon the illegal usurpation of power by the executive at the cost of the liege."

De Smith 2 described the writ of habeas corpus as a renown  contribution of the English common law to the protection of human liberty. The writ of habeas corpus is also of great constitutional importance in Nigeria. In Chief Alhaji Agbaje v. C 0.P, on the application of Chief Abdul Mojeed Mobolanle Agbaje, the High Court, Ibadan caused a writ of habeas corpus to issue on 12 June, 1969 on the Commissioner of Police, Western State.

The Substance of the applicant's complaint was that he was unlawfully detained in the police station, Ibadan by the Commissioner of Police as from 31 May, 1969 to 12 June, 1969 when his application was heard by the High Court. He swore to an affidavit deposing that he repeatedly demanded the reason or authority for his detention at the police station, but no one answered him. He wrote letters to the same effect but he got no reply. Instead, he claimed to have been treated rather roughly.

The Commissioner of Police filed a return to the writ. In it, he admitted detaining the applicant as aforesaid, and based his authority for so  doing, under Orders Exits 1 and 2, said to have been made by the Inspector-General of Police, who it was said, acted under and by virtue of powers vested in the Inspector-General of Police by section 3(1) of the Armed Forces and Police (Special Powers) Decree No. 24 of 1967. The Court in delivering its judgement held that the writ of  habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention when in prison or in private custody and that it is applicable as a remedy in all cases of wrongful deprivation of personal liberty. The court cited with approval the Halsbury's Laws of England 3rd Edition and R. v. Governor of Brixton Prison, Ex Parte Sarno. It  also quoted with approval the case of Singh v. Delhi where the court  held that "This court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the dis- charge of what they consider to be their duty, must strictly and scru- pulously observe the forms and rules of the law". The court held that the detention of the applicant under the circumstances of this case was unlawful. The court reached a similar conclusion in the case of Re Mohammed Olayori.

Injunction

An Injunction is an equitable remedy. There are many variants of this remedy. One may have in view prohibitory or mandatory Injunction, preliminary interlocutory. What is certain is that whatever variant one- bosom view, 'its usefulness lies in the fact that it is an order of court addressed to a Party with the aim of refraining him from doing or compelling him to do a particular act. A perpetual Injunction gives a definite order for a durable period when used in contradistinction to an interlocutory Injunction. One advantage an injunction has over other remedies is the flexibility of its application and grounds that judge may consider before; granting an order of injunction. The cow explaining the meaning and grounds for granting an interim, and interlocutory order of injunction in Kotoye vs. Central Bank of Nigeria & 7 Ors. made the following points.

• "Ex parte" in relation to injunctions is properly used to contradistinction to "on notice" and both expressions which are mutually exclusive, more strictly rather refer to the manner in which the application is brought and the Order procured:
• An applicant for a non-permanent injunction may bring the action ex parte that is without notice to the other side as appropriate. By their very nature injunction granted on ex parte applications can only be properly interim in nature. They are made, without notice to the other side, to keep matters in status quo to a named date, usually not more than few days, or until the Respondent can-be put on notice.
• What is contemplated by the law is urgency between the happening of the event, which is sought to be restrained by injunction and the date the application could be heard if taken after due notice to the other side.

The court also held in this case that application for interlocutory injunction are properly made on notice to the other side to keep matters in status quo until the determination of the suit. The issues which a court will consider in granting an interlocutory injunction, after avoiding controversial issues of fact are:

• The strength of the applicant’s, case. What needs be shown is only a real possibility, not a probability of success at the trial, that there is a serious question to be tried.
• Once the applicant gets over the initial handle of showing that there is a serious question to be tried he must show that the balance of convenience is on his side that is that mere justice, will result in granting the application than in refusing it, the onus of proving that the balance is on his side is that of the
• The applicant, to succeed, even if he had shown that he has a good case and that the balance of convenience is on his side, must furthermore show that damages cannot be an adequate compensation for his damage, if be succeeds at the end of the 
• Conduct of the parties – For example, in bringing the application will defeat it ~se su~ a delay postulates there is no urgency in the matter and destroys the very basis for a prompt relief by way of interlocutory injunction and, in any opinion, rightly made, as to the 'rights 'of the parties under contracts, without waiting for some event to happen, as, for instance, for a ship to arrive at its destination, in order to determine the result, of the contracts and with the exact causes of action might be. In my opinion under order XXV rule 5, the power of the court to make a declaration where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide. "

Where an individual claims that his right has been trampled upon by any person or agency, be it private or public he has the right to apply to  court for a declaration or for a demotion and an injunction. Where the, right that is sought to be asserted is a public wrong, the person seeking the declaration must show that he has suffered damages over and above that of any other person. In Hope Harriman v. Mobolaji Johnson the court quoted with approval the statement in the Halsbury's Laws of England Vol. 22 that the court will not make a declaratory judgement where the" trisection raised is purely academic or the defamation would be or embarrassing.

The court in Hope Harrison v. Col. Mobolaji Johnson held, thus: .' .....

no court exists for the purposes of indigenous what from the start would be a completely wasteful and useless exercise. All courts in  every part of the civilized world are jealous of their jurisdiction as well as their powers and as such are unwilling to indulge in any exercise which will bring about principle of contempt. The granting of a declaratory right offering is discretionary and it must always be exercised within the care, caution and judicially "

A Court will therefore not give a declaratory the issue to decided is purify, or A declaratory order may be an effective remedy. It is however usual to couple it with an order for an injunction.

Summation and Comments Judicial Remedies

The general notion of Judicial remedy is that where there is a  right, there must be a remedy. This notion is graphically and succinctly expressed in the latin words as "ubi jus ibi remedium"

It is therefore of utmost importance that Constitutional wrongs which consist on the infringement at another's legal rights must be redressed or should be repressible. But in going through the provisions of the Nigerian Constitution, there appears to be no clear cut remedy for the seeming infringement of legal rights, hence result must be made in the first instance to the law of Tort whose province is to allocate responsibility for injurious conduct. (See Lord Denning in 63 LQR517).

Also these common law rights were often being utilised with equitable remedies to correct administrative and executive wrong -of the people in Government.

However after the historical sojourn of the writs of mandamus, prohibition and certiorari, what we now have are the orders of Mandamus, prohibition and certiorari which are now in vogue to curb the excesses of the Executive actions.

These orders have been adjudged nowadays to be adequate for the protection of an aggrieved person.

For instance in Burma Vs. Usman Sarki 24(1962)'ALL N.L.R. Hon. Justice Udo Udoma had these to say:

• 1n the absence of a prescribed procedure-for, attacking the exercise of powers by a Minister, the normal civil processes and the principles of general law, including the prerogative orders are of course, available i. e. to be invoked to advantage by any aggrieved person whose rights have been infringed”

However to be able to invoke successfully these Remedies, the following conditions must be complied with: An applicant for the Order must establish that:

1. The breach of the duty which he seeks to be performed is an imperative public duty bestowed on the respondent to do;
2. He must also show that he had asked for this duty to be done by the authority responsible and he has been denied such a performance;
3. He prove also that he has a substantial personal interest in the performance of the duty;
4. He must ensure that the Court to which he has brought his application has jurisdiction to entertain the action;
5. Lastly must be noted that an order of mandamus is never granted to enforce a discretionary power; because the Court can not enforce a respondent to exercise his discretion in a particular way. See Lagunju Vs. Araoye2' (1959) 4 FSC

And this was graphically stated in R Vs. Coltam (1908) I QB. 802 and R Vs. Man Mouthshire Justice Ex-Parte Heaver' (1913) 10 LJ. 788 as follows:

"Where a statute Confers discretion to do or nor to do a particular thing, the Court will not by mandamus dictate that it be done, and provided that the discretion has been exercised bona fide and upon relevant materials, the Court, will not interfere by mandamus to correct an error either of law or fact in the determination of the subordinate tribunal because the Court, in determining whether or not mandamus should issue, is not exercising appellate jurisdiction".

6. But if a body against whom an order of mandamus is sought has departed strictly from the conditions laid down in the law empowering it to perform its public duty, mandamus will lie against it. See such cases like R V Dodds (l905). 2 KB 4Q; R. Vs. 11 Jomas (1892) 1QB. 426 and RVs. Bowman (1898) 1 QB. 663.

An order of certiorari is maintainable/sustainable against any adjudicatory body exercising judicial or quasi judicial power; it will therefore not lie if the body is exercising an administrative or other power like ministerial which is neither judicial nor quasi-judicial.

1. A person can bring certiorari application to quash any judgement that is obtained by fraud as it was done in R Gillpart (1884) 12QB. 52.,
2. He can bring such an application also if the body has acted in violation of the principles of natural justice before it arrived at a decision.
3. Certiorari will lie if the decision of the lower Court appears on the face of the record to be erroneous in point of law, or if the tribunal decided the case in excess of its jurisdiction, or by wrongfully assuming jurisdiction;
4. Certiorari will never lie to quash the decision of the Sharia Court and that of the Customary Court of Appeal in Nigeria for it is continue to other adjudicative bodies lower than either the Sharia Court of the Appeal Court;
5. Any applicant who wants to avail himself of this remedy must do so in good faith and after leave has been taken he must put the other person on NOTICE within the time stipulated by law.
6. An applicant must apply for this relief within six months after the making of the order sought to be quashed see Queen V The Judge Western Urhobo - Grade 'B' Cus tomary Court .Ex-Parte Sunday
7. Under order 59 Rule 5(la) R.S.c. in 1961, Leave to ap ply for the·order of Prohibition, Certiorari, and Mandamus lapse unless it is put on the list for hearing within 14 days after leave has been granted; The Queen V Cus tomary Court Grade 'A': Ilesha & Another (1961) ANLR (pt IV) filed at 813
8. Lastly it must be known that in an application for certiorari, it is mandatory that the application ex-parte should be accompanied by a statement which should contain nothing more than the name and the description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavit verifying the facts relied on See The Queen Azigbo and others (1961) WNLR 37 at page.

This is available to secure the release of persons unlawfully detained. See Ogunwunmi V. Federal Attorney General (1973) 4 CCHCJ 52 at 54.

In Re: Olayori Others (l969) 2 A.N.L.R. 298 at 309 and cases cited under our chapter on "The Rule of Law". But it must be noted that an applicant must act in this regard with utmost good faith. This is the ratio decidendi brought out in the celebrated case of The Queen v. The Alake of Abeokuta and Others^' (1960) WRNLR 228 at 230.

An order of Prohibition like the "order of Certiorari" lies only in respect of judicial acts Arzika vs. Governor, Northern Nigeria (1961) NRNL 5 at 6 Prohibition lies against any Court that lacks jurisdiction to entertain a case before it see' Katabca V. Boust (1952-55) 14 WACA 281 at 282 Put succinctly an order of prohibition will be granted when any body of person having authority to determine questions affecting the rights of  the subjects, and having the dottiest act judicially or quasi judicially acts in excess of its legal authority. It will also lie when there is a want of jurisdiction or excess of jurisdiction; and if an inferior Court has no jurisdiction, the fact that an appeal lies to some Court from its decision does not prevent this order of prohibition from being made. See The Queen V s. The Governor in Council Western Nigeria, Ex-Parte  Ishmael Dbaemi Green Adebo (1962) WNLR. 93 at 97, and Queen Vs. Governor-in-Council Western Nigeria,43 Ex-Parte Mustapha Oyebola (1962) WNLR 360 at pages 364-365.

Please note that the fact that the applicant has another remedy for him to utilise is not a bar to him not to avail himself of this Order of Prohibition.

And finally must be noted that an Order of Prohibition will not be made against either a Police Officer who exercises a judicial function or to prohibit an administrative or ministerial act. See District Commissioner Vs. Patterson (1944) 10 WACA 128 at 130 - 131, and see also the case of I. G.P. V s. Oke (1958) LLR 45 at 46 which are very explanatory of these contentions.

In my book on~ ''Principles of Civil -Litigation", I wrote as follows on this remedy and circumstances when it will not avail any applicant.

Injunctions whether Interim, Interlocutory or perpetual are not granted  in vacuo, but only to protect a right which is being threatened.

In other words, an Injunction can only be granted to support or protect a legal right. See Commission for Works, Benue State Vs. Devcon Lttf' (1983) (pt. 83) 40 at 442.

An Injunction is an equitable remedy and the grant of it depends on the discretion of the judge; while this discretion must be exercised both judicially and judiciously.

Therefore an injunction being an equitable remedy, he who comes to it must come with clean hands.

There have been many grounds to be taken into consideration before an application for interlocutory Injunction could be granted - but the more acceptable view becomes that the applicant needs only show:

• that he has a right which ought to be protected pending the determination of the substantive action; and
• that there is a serious issue on the evidence before the judge between the parties to be tried 1Jbeya Memorial Hospital A.

1. of the Federation (1987) 3 NWLR (Pt. 60) 325 Ladunni V. Kukoyi (1972) 1 ALL NLR (pt. I) 133; Egbe V. Onogu (1972) 1 ALL NLR 95;

It therefore means that the essence of the granting of Injunction is to protect the existing legal right or of recognisable right of a person from unlawful invasion by another.

In Kotoye Vs. C.B.N. case, the Supreme Court laid down the following factors to be taken into account before granting any application of Interlocutory Injunction to wit:-

1. The strength of the applicant's case in the substantive suit, and that there is a serious issue to be tried
2. That the balance of convenience is on the side of the applicant. The onus of proof of which is on the applicant. See Missini and Ors. Balogun - (1968) 1 ALL NLR 318.
3. That monetary damages will not be an adequate compensation for injury resulting from the violation of his right if he succeeds in the action.

Implicit in the conditions laid down are the essential requirements that the evidence must disclose that the applicant has a legal right to bring the substantive action on which the application is based and that he has established a prima facie case to the Injunction. See Ladunni v Kukoyi and Ojukwu V. Governor of Lagos (1986) 3 NLR (Pt. 26) 39 Please  note that the applicant must establish" a prima facie case" before he suc- ceeds, no longer represents the law.

The law as it now stands requires that the applicant needs only to show that there is a substantial issue to be tried in the suit; This is a rule of convenience which has gone a long way to eliminate or reduce the need to try issues of fact twice; first in the application for Interlocutory Injunction, and secondly in the substantive suit.

Once therefore the matter is one that ought to be restrained by Injunction, and the applicant shows that there is a substantial issue to be tried, that also the balance of convenience is on his side, and that an irreparable damage will be done to his case if that Injunction is not granted, and that he is prepared to give an undertaking for damages, the application ought to be granted, unless of course the Court prefers to accelerate the hearing of the suit".

The Court is under a duty to examine the affidavits of the applicant and the respondent in order to ascertain whether the applicant  has established that there is a serious question to be tried and that he has a right which ought to be protected.

When Injunction Will be Refused

The Court will not grant an Injunction however strong the applicant's case may appear to be where the damages in the measure recoverable at common law would be adequate and the Respondent would be in a financial position to pay. Duurji V. Zaria Hotel Ltd. (1992) 1 NWLR (pt. 216) 124 ration 2, 3. Please note that mere Inconvenience without a property right in the subject matter of the Complaint is not enough to entitle an applicant to an order of Interlocutory Injunction.

Injunction will be refused where to grant it will amount to a  condonation of illegality and such actionable wrong of trespass and nuisance. "Law and Lawlessness are strange bed fellows under the rule of Law".

Under the rule of law everything is presumed against the law breaker, and as against the person who asserts a superior right, the law does not give its protection to a trespasser.

We can not surrender the machinery of law to the aberration of lawlessness; whereas law and lawlessness are strange bed fellows under the law. SeeAkapo V. Habeeb- (1992) 6 NWLR (pt. 247) 266 at page 275 per NNAMEKA·AOU JSC at Page 304.

Injunction will be refused if the strength of the applicant's case is weak.Ogbonnaya Y. Adapalm Ltd (1993) 6 KLR 89 at ratio S "In the exercise of its discretion to grant an Interlocutory Injunction, the Court must have regard to the strength of the claim vis-a-via the strength of  the defence and then decide what best to do in the circumstances.

An application for injunction will be refused where if granted opportunity will be given to the grantee to sell all the land away and alter its character. See Igwe V. Kalu (1993) 4. KJ "R 3 3 at page 3 S ratio 3 and 4.

An Injunction will be refused if an order for accelerated hearing is given. Whenever it is possible to accelerate the hearing of a case

.instead of invading through massive affidavits, and the hearing fleshy argument on interlocutory Injunction. the Court should accelerate the hearing and decide finally on the rights of the parties. John Holt (Nig) Ltd. V Holts African Union of Nigeria and Cameroon 2(l963) 2 SC NLR 383; Nigeria Civil Service Union. EMie1J64 (1985) 3 NWLR{pt. 12) 185.

CONCLUSION

You have learned about the relationship between fundamental human right and the remedies available in case of a breach. You have learned the various types of remedies available and how it can be enforced in  the law court.

SUMMARY

In this unit, you have learnt that there are five different types of judicial remedies to a breach of fundamental human right i.e. Mandamus, Injunction, Certiorari, Prohibition, Habeas Corpus, etc.

TUTOR-MARKED ASSIGNMENT

1. Under what condition can injunction be refused?
2. What is the main difference between ex-parte injunction and interlocutory injunction?
3. Explain the term ‘Mandamus’.
4. Describe the effect of an order of certiorari

REFERENCES/FURTHER READINGS

Toriola Oyewo: Constitutional Law and Procedure in Nigeria. The 1999 Constitution of the Federal Republic of Nigeria.

K.M. Mowoe (2002). Constitutional Law in Nigeria.

Ben Nwabueze (1982). Presidential Constitution of Nigeria.