INJUNCTION
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main content
3.1 The position in Nigeria
3.2 Legally enforceable rights
3.3 Types of injunction
3.4 Damages in lieu of injunction
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignments
7.0 References / Further Reading
1.0 INTRODUCTION
In Modules 1 and 2, we considered a number of issues under the general principles of equity. In this module 3, we will look at equitable remedies and particularly in this unit, we will consider the remedy of injunction. Under the English legal system the award of a decree of injunction was, for centuries, exclusive to the Chancery Court. The reason for this exclusive jurisdiction of Chancery is to be found in the peculiar history of the English legal system whereby law and eq- uity were, for a considerable length of time, administered in separate courts administering sepa- rate jurisdictions. The unpleasant situation resulting from the dual administration of justice led to the merging (by series of enactments in the 19th century) of both jurisdictions into the Supreme Court of Judicature.
2.0 OBJECTIVES
By the end of this unit you should be able to:
(i) Explain the remedy of injunction;
(ii) List the legally enforceable rights; and
(iii) Differentiate the types of injunction
3.0 MAIN CONTENT
3.1 The position in Nigeria
With regard to the award of injunction, the starting point for the merger was the Common Law Procedure Act of 1854 which empowered the Common Law Courts to grant injunction in certain cases; and finally the Judicature Acts, 1873-75 which abolished the old system of courts and in its place, created the Supreme Court of Judicature with power to administer law and equity. By the provisions of section 16 of the Act of 1873 the Supreme Court of Judicature was vested with all the jurisdiction hitherto exercised by both the common law and the Chancery Courts. Section 25(8) of the Act specifically provides that 'the High Court may grant... an injunction ... by an in- terlocutory order in all cases in which it appears to the court to be just or convenient so to do ... either unconditionally or on such terms and conditions as the court thinks just.'
The above provisions did not materially affect the grant of an injunction by a Nigerian Court. Be- fore and after the passing of the Act, there has always been one system of court administering rules of law and of equity, although both the Supreme Court and the States High Courts are now enjoined by the statutes to administer law and equity concurrently and in the same manner as they are administered by Her Majesty's High Court of Justice in England. Furthermore, section 16(b) of the Federal Supreme Court Act, 1960 empowered the Supreme Court to grant, in every cause or matter pending before it, either absolutely or on such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or mat- ter.
Similarly, section 19 of the High Court of Lagos Ordinance empowered the High Court to grant an injunction in all cases in which it appears to the court to be just or convenient so to do. The combined effect of the above provisions is to confer on both the Supreme Court and the High Courts a wide discretion in the award of injunctions. The exercise of this discretion must, howev- er, be consistent with what is reasonable and just in the circumstance. This means that the court ought to be satisfied that the injunction which is being granted is as to its terms considering all the circumstances of the case as affecting both parties, reasonable and just. See Leslie F. Tate v. The Senior Immigration Officer (1962) L.L.R. 73, 76.
The jurisdiction of the court to grant injunction is not limited to any particular cause or matter. Contra Lord Esher in North London Railway Co. v. Great Northern Railway Co. (1883) 11 Q.B.D. 30, C.A. The court may exercise its jurisdiction in novel cases provided it is just and reasonable and that the right sought to be protected is one recognised and enforceable either at law or in equity. The principle with regard to injunction is that the court would grant an injunction for the protection of legally enforcea- ble rights or the prevention of injury according to legal principles. See Martins Properties Ltd. V. Al- bert Anthony Coury (Unreported) Suit No. LD/690.1968 (Lagos High Court 24/ 3/69).
General Principles
Though the Nigerian legal system did not inherit the problem of dual jurisdiction it did inherit the general principles regarding the grant of an injunction.
3.2 Legally Enforceable Rights
The grant of the remedy depends on the existence of a legally enforceable right. A plaintiff seeking the remedy must first establish a right recognised and enforceable either at law or in equity. See Odunuwe v. Uduaga (1952) 14 W.A.C.A. 187; Onayemi v. Bouari (1954) 14 W.A.C.A. 597; Gottschalk v. Spruce (1956) 1 F.S.C. 42. In Adam v. Duke (1927) 8 N.L.R. 88 at 91, Webber J.. said 'I am ... unable to find any substance in the statement of claim, nor can I find that any legal demand or claim was made for subscriptions or tribute or contributions as alleged. On these findings there would appear to be no le- gal cause of action ... The claim for an injunction must fail. There is nothing to restrain, nor does any rea- son exist for an injunction. The court will not restrain the defendant from making assertions. There must be a violation, a real and substantial violation of some right, before a court grants an injunction. As far as I am to judge on the facts, it is difficult to understand what relief is sought in respect of any cause of ac- tion. I am unable to trace any cause of action; there seems to be an absence of such facts as would give rise to an enforceable claim. What has been interfered with or even threatened'. See also Aileru v. Beinin (1961) L.L.R. 45, 55.
It is now settled that the court will not grant an injunction where the plaintiff is unable to show an action- able wrong. The fact that the act of the defendant is injurious to the plaintiffs not sufficient so long as such act does not constitute an infringement of a legally enforceable right (Day v. Brownrigg (1878) 10 Ch. D. 294; Webster v. Webster (1916) 1 K.B. 715) nor will injunction be granted where it has not been clearly established that the defendant has infringed or threatened to infringe the plaintiff's right. See Braide v. Adoki (1931) 10 N.L.R 15; Pattison v. Gilford (1874) L.R. 18 Eq. 259.
In Wey v. L.E.D.B (1957) L.L.R. 20-21, the plaintiffs sought an interlocutory injunction to restrain the defendant from pulling down the houses of the plaintiffs and ejecting the plaintiffs or any occupier there- from. The plaintiffs alleged that the defendants had threatened to pull down the plaintiffs' houses. The remedy was refused on the ground that the allegations of threats were based on the bare word of the plaintiffs unsupported by any other evidence. 'Even if the threats were made, it seems to me that the demolition and forcible ejection are still only in prospect; It may be that, from their observation of what has been going on around them, the plaintiffs think or anticipate that their houses may be pulled. That is not enough. The mere prospect of injury does not give a right to the relief asked for here and I am not satisfied that the injury, if it be done, is anything more than in prospect at the moment.'
The fact that the nature or character of the right sought to be protected is tenuous is not a suffi- cient defence if it is established that there is an enforceable right which has been substantially violated. In Umana v. Ewa (1923) 5. N.L.R. 25 at 28, the plaintiff who was a mere occupier of a piece of land, brought an action for an injunction to restrain the defendant for an unlawful inter- ference with the plaintiff's use and enjoyment of the land. The trial court held that, as the plaintiff and the persons whom he represented had been permitted by the owners of the land, whoever they might be, to live on the land and to use the land for fanning and other purposes, they had ac- quired a right under native law and custom which the court must recognise and if necessary pro- tect by injunction addressed to persons who without any lawful authority interfered With their use and enjoyment of the land. On appeal, the defendant/appellant contended that as the plain- tiff/respondent had not proved that the land belonged to the House of Family of which he was a member and that even if he had proved it, he was not in a position to ask for a declaration to that effect; therefore, he had not proved any right in the land in respect of which an injunction could be granted.
Rejecting this contention, Combe, C.J. delivering the judgment of the court said 'Whether the land is owned by the house of which he is a member or is owned by the Ntiero family the plain- tiff has acquired a right under native law and custom to continue to use the land which he has been permitted by the owners to use, without any unlawful interference, and if it is proved that there has been a persistent unlawful interference with such use by a stranger the court would be fully justified in granting an injunction to restrain such interference.' See further, Orku Sowa v. Amachree (1933) 11 N.L.R. 83
Certainty of Rights to be Protected
The right sought to be protected by a decree of injunction must be clearly defined and ascertain- able. See Karama v. Aselemi (1938) 4 W.A.C.A. 150. In Cother v.Midland Railway Co. (1848) 2 P.R. 470 at 472; 41 E.R. 1025, Cottenham L.C., in the course of his judgment dissolving injunc- tion granted by Vice-Chancellor said 'I think the right should be declared, and the injunction founded upon such declaration that the order may inform the defendant what the opinion of the court is as to the limits of his right, and not expose him, in the exercise of such right, to the con- sequences violating so vague an injunction.'
The court will grant an injunction only at the suit of a party having sufficient interest in the right sought to be protected. See Maxwell v. Hogg (1867) 2 Ch. App. 307, 317: Akerele v. Awolowo (1962) WN.L.R. A mere declaration of intention to do something without any further positive act on the part of the declarant will not constitute sufficient right capable of being protected injunc- tion. Though injunction is available in variety of cases, it will not be granted if the claim for it is not put before the Court. However, where the court allows the plaintiff's claim to be amended by adding a claim for an injunction and the court is entitled to allow such amendment, on the amendment having been made, the injunction may be granted if the facts proved were such as to justify the court in granting an injunction.
Injunction will not be granted in favour of a volunteer. In Akenzua II Oba of Benin v. Benin Divi- sional Council (1959) W.R.N.L.R. 1, the plaintiff, the Oba of Benin and President of the defendant council, sought to recover damages for breach of contract, alleging that the council, having granted to him a concessionary right to exploit timber exclusively in a certain area, withdrew the right without cause and without notice. In the alternative, the plaintiff claimed a declaration of his rights, an injunction and damages.
The consideration for the alleged contract was founded in services alleged to have been rendered by the plaintiff to the council by using his influence as Oba to secure the release by the United Africa Company Limited, the holder of certain rights of exclusive exploitation of a larger area including that in respect of which this action was brought. The defendant contended, inter alia, that the plaintiff gave no consideration for the alleged contract and that being a volunteer and not a purchaser for value, the plaintiff could not be granted equitable relief.
Thomas, J., found as a fact that the resolution of the council which the plaintiff alleged to have given him the right claimed was never made before the areas in dispute were released by the United Africa Company Ltd. nor was the promise by the plaintiff to get the areas released. His Lordship observed that it was rather odd, in the circumstances of the case, that the plaintiff could imagine that he would become a licensee in perpetuity of a very vast area of land within which to exploit timber by the passing of the council's resolution, simpliciter, and without giving any valu- able consideration whatsoever. It was, therefore, clear that the plaintiff had no enforceable con- tract, the claim for injunction was accordingly refused; the plaintiff being a volunteer and equity will not assist a volunteer but a purchaser for value.
The remedy will not be granted where its effect will be valueless or ineffective. 'Equity like na- ture does nothing in vain.' See Eshugbayi Eleko v. Frank Morrish Baddeley (1925) 6 N.L.R. 65 and Joshua Awopeju v. Madam Eleke CCHCJ/9172, 76.
3.3 Types of Injunction
An injunction is an equitable remedy granted by the court compelling a party to do or to refrain from doing an act. The order is mandatory or positive where it compels a party to do an act; it is prohibitory or restrictive where it prohibits the doing of an act. The various types of injunction are:
- Mandatory and Prohibitory Injunction
- Perpetual Injunction
- Interlocutory Injunction
- 4. Quia Timet Injunction
- 5. Exparte Injunction
Let us briefly consider each one.
Mandatory and Prohibitory Injunction
The essence of a mandatory injunction is to compel a party to restore things to the condition in which they were at the time the plaintiff's complaint was made or before the defendant committed the act complained of. See Isenberg v. East India House Co. (1863) 3 D.J. & S 263 at 272. 32 and Smith v. Smith (1875) L.R 20 Eq. 500. For reasons of history and convenience, judicial attitude tends to favour the grant of prohibitory rather than mandatory injunction. For a long period, most injunctions were (and still are) prohibitory both in form and substance. The reason being that the remedy of injunction is essentially restrictive.
Secondly it was much easier to restrain a party from doing an act than to compel him to perform a positive act, since the Court of Equity will not grant a remedy, the enforcement of which will require the supervi- sion of the court. Thus, the general restrictive character of injunction and the drastic effect of mandatory injunction in particular favoured the disinclination of the court to grant mandatory injunction. If and when it is granted, greater caution is exercised, and for a long period of time a mandatory injunc- tion was always granted in negative terms when it was obvious that its effect was positive.
There is no longer any distinction in principle between granting a prohibitory injunction restrain- ing a party from interfering with a right and granting a mandatory injunction in a positive term, compelling a party to grant a right. See Davies v. Gas Light and Coke Co. (1909) 1 Ch. 708. The merits of an injunction are the overriding consideration; whether an injunction is mandatory or prohibitory in form or substance is of little significance provided the effect of the order does not impose an impossible or unenforceable or unlawful obligation. See Pride of Derby v. British Ce- lanese (1953) 1 Ch. 149, 181.
Buckley J. in Charington v. Simons & Co. Ltd. (1970) 1 W.L.R 725 at 730, stated the principles governing the issue of a mandatory injunction. He said: 'the court must, take into consideration amongst other relevant circumstances the benefit which the order will confer on the plaintiff and the detriment which it will cause the defendant. A plaintiff should not, of course, be deprived of relief to which he is justly entitled merely because it will be disadvantageous to the defendant. On the other hand, he should not be permitted to insist on a form of relief which will confer no appreciable benefit on himself and will be materially detrimental to the defendant.'
SELF ASSESSMENT EXERCISE 1
Define injunction.
Perpetual Injunction
Perpetual injunction is based on a final determination of the rights of the parties, and is intended permanently to prevent infringement of a right, and obviate the necessity of bringing an action after every such infringement. See Odunuwe v. Uduaga (1952) 14 W.A.C.A. 187 at 188. The or- der does not necessarily last for ever contrary to what the description or terminology of the order implies. It, however, settles permanently, the existing dispute between the parties being an order that is made only after both parties to the dispute have been given the opportunity of being heard and the merits and demerits of disputants’ contentions considered. The order is appropriate and usually made to prevent a continuous infringement of a right and the continuous injury that flows from such infringement. See Ojiako v. Ogueze (1962) 1 AllNLR 58.
It is equally appropriate in the application for quia timet injunction where the plaintiff shows a genuine and reasonable fear that a violation of his right is threatened and that damages would not be an adequate compensation for the imminent injury that would result from such infringement. Furthermore, a perpetual injunction is granted in order to prevent multiplicity of suits. The court prima facie would however not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. See Martins Properties Ltd. V. Albert Anthony Coury (supra). This is the very first principle of injunction law.
The award of the remedy is discretionary, though this discretion is not to be arbitrarily exercised. See Adeyeye v. Adewoyin (1960) 5 F.S.C. 146. By and large, it is a settled principle that the award of injunction is discretionary and that the exercise of this discretion must be guided by established principles and practice having regard to the surrounding circumstances of each case. In the process, various matters are taken into consideration. Such as -
(i) Temporary Nature of the Infringement
(ii) Minor Damage
(iii) Limited Owner
(iv) The Problem of Compliance
(v) Undertaking
Interlocutory Injunction
An application for an interlocutory injunction postulates that the applicant has a right, the violation of which he seeks to prevent and in order to do so effectively to ensure at that stage of the proceedings that the subject-matter of the right be maintained in status quo. Therefore, an interlocutory injunction is that kind of equitable remedy which is only granted at the discretion of the court in order to nullify an actual or anticipated alteration of the 'status quo' or to prevent the commission of some act or the taking of some steps which will be impossible to reverse if done or taken. Interlocutory injunction is granted before the final determination of the substantive issue between the parties. When granted, the effect may be manda- tory or prohibitory.
See Duvin Pharmaceutical and Chemists Co. Ltd. v. Beneks Pharmaceuticals and Cosmetics Ltd. & 2 ors. (2008) 1-2 SC 68. Where the Supreme Court held that the issuance of order of Interlocutory Order is at the discretion of a court which discretion must be exercised judicially and judiciously and once an ap- pellate court is satisfied that this principle of law has been met, it will hesitate to interfere with the exer- cise of such discretion by the trial court.
In Akinpelu v. Adegbore & 3 ors. (2008) 4-5 S.C. (pt.II) p. 75, the Supreme Court held that:
“… an application for an Interlocutory Injunction is procedurally between Interim Injunction and Perpetual Injunction and is usually granted by the court pending the determination of the case. For such an applicant to succeed the applicant must show as decided by the Supreme Court in Kotoye v. Central Bank of Nigeria (1989) 2 S.C. (Pt. 1) 1, (1989) 1 NWLR (Pt.98) 419 that;
(a) There is a serious issue to be tried and that the applicant has a real possibility, not proba- bility of success at the trial;
(b) The balance of convenience is on the applicant’s side; (c) Damages cannot be an adequate compensation;
(d) The applicant’s conduct is not reprehensible e.g. that he is not guilty of delay;
(e) That the applicant has given satisfactory undertaking as to damages save in recognized ex- ceptions.”
In Kotoye v. CBN (supra), by a letter dated 14 April, 1987 to the Societe de Generale Bank by the CBN, the CBN ordered certain steps to be taken and nullified certain decisions reached by the bank. The said letter affected both the interests of the bank and those of some of its directors in- cluding the plaintiff. Consequently, on 22 April, 1987 the plaintiff filed an action in the Federal High Court, Lagos against the CBN, Att-General of the Federation, Societe de Generale Bank, challenging the directives contained in the letter of 14 April, 1987. On that same day (i.e 22
April, 1987), the plaintiff filed an exprte praying for an order:
(1) Restraining the first and second defendants and their servants/agents from in any way ob- structing or frustrating the holding of the annual general meeting of the third defendant bank until the final determination of this suit;
(2) For an order of injunction that until the pending of the suit, the defendants be restrained from appointing or re-organising the appointment of any person(s) as director of the bank other than such of them as are or may be duly appointed in accordance with the provisions of the articles of association of the bank’
No motion or notice was filed to the same effect. On the same day, the Federal High court granted reliefs sought in the application and more. The first defendant (CBN) and the fourth de- fendant who later joined the suit appealed against the ruling on the exparte application to the Court of Appeal. The Court of Appeal allowed the appeal and set aside the orders. The plaintiff thereupon appealed to the Supreme Court against the decision of the Court of Appeal.
The Supreme Court held that:
(1) An interlocutory injunction is one made pending the determination of a suit;
(2) An interim injunction is one granted to last until a named or definite or until further order or pending the hearing of a motion on notice between the parties;
(3) An exparte injunction which is either interim or interlocutory is granted where there is a real urgency and it is one of the inherent powers of a court of law for the enhancement of the administration of justice;
(4) An interlocutory injunction being an injunction granted after due contest inter partes can- not be made unless there is an application on notice duly served on the other side and the evidence for the determination of the application is by affidavit evidence.
The applicant must establish a probability or a strong prima facie case that he is entitled to the right of whose violation he complains. See Kufeji v. Kogbe (1961) 1 All NLR 113; and Donmar Productions Ltd. V. Barr & ors. (1967) 1 WLR 740, 742. It is not necessary that a plaintiff or applicant should make out a case as he would on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing.
An interlocutory injunction will be granted to restrain an apprehended or threatened injury where such injury is certain or very imminent, or mischief of an overwhelming nature is likely to be done. See Mbonyi & Or. v. Dadzie (1940) 6 WACA 125. The remedy will not be granted when the wrong which it is sought to restrain thereby is only in prospect. See E.O. Wey v. L.E.D.B. (1957) L.L.R. 20. It is a settled law that an interlocutory injunction will not be granted when the injury complained of can be fairly compensated in pecuniary damages. Thus the applicant must show that he will suffer irreparable injury that which is not prevented by injunction cannot be af- terwards compensated for by any decree which the court can pronounce in the result of the case. See Akinlose v. A.IT. Ltd. (1961) W.N.L.R. 116; and Attorney-General v. Hallett (1847) 16 M. & W. Whether an injury complained of is irreparable or not depends on the facts and circums- tances of each case. See Saunders v. Smith (1838) 3 My & Cr. 711 at 728.
Balance of Convenience is another important consideration in the granting or withholding an interlocu- tory injunction. Such consideration is predicated on the relative convenience or inconvenience to the par- ties of granting or withholding an injunction. See Republic of Peru v. Dreyfus Bros. & Co. (1888) 38 Ch. 348, 362; and Ladunni v. Kukoyi (1972) 1 All N.L.R 133. Infact, the over-riding consideration prescribed by law for granting of an interlocutory injunction apart from establishing that there is a matter for determination is that the action must appear to the court to be just or convenient so to do. See Leslie
- Tate v. Senior Immigration Officer (1962) L.L.R. 73, 76; and Ayo Arubi v. Ewere & Ors. (1971) 1 UILR 50, 52.
Thus, where the plaintiff has made out a probable case for ultimate relief or where the evidence leaves this so much in doubt that the court must see there is a serious question of difficulty to try, then this mat- ter of balance convenience becomes a paramount importance. See Ladunni v. Kukoyi (supra). At all times the burden of a prima facie case and also the proof on balance of convenience, lies in fa- vour of a person applying for injunction.
Since the jurisdiction to grant interlocutory injunction is equitable, the court must consider the behaviour or conduct of the parties both before and at the time of the application and the decision whether to grant the order sought must be related to actual and ascertained facts of the current situation. Similarly, interlocutory injunction being an equitable relief, he who wants it must come with clean hands. See Blakemore v. Glamoganshire Canal Navigation (1832) 1 My & K 154, 168. Interlocutory injunction may be prohibitory or mandatory although mandatory injunction is rarely granted.
Quia Timet Injunction
This is a kind of injunction sought by a person to restrain the doing of an apprehended mischief. Unlike perpetual and interlocutory injunctions which are sought to restrain infringement or al- leged infringement of rights, a quia timet injunction is sought before the mischief is done. Thus the exercise of the equitable jurisdiction is predicated on the fact that a person is entitled to take action quia timet before he is actually injured. See Niger Chemists Ltd. v. Nigeria Chemists Ltd. (1961) 1 All N.L.R. 171; See James L.J. in Hendricks v. Montagu (1881) 17 Ch.D. 638, 65 where he said 'No doubt the application is an application quia timet, that is to say, it is to prevent some- thing ... which is being threatened and intended - to prevent something which the defendant is threatening and intending to do.'
Because of the drastic effect of injunction in general, and the fact that quia timet injunction is in particular, meant to restrain an act that has not been done, courts are always wary and reluctant to grant quia timet injunction. See Graigola Merthyr Company Ltd. v. Corporation of Swansea (1929) A.C. 344; Crowder v. Tinkler (1816) 19 Ves 617; Emmanuel Ojo Wey v. L.E.D.B. (1957) L.L.R. 20. Therefore, to succeed in an action for a quia timet injunction, the plaintiff must estab- lish a clear and convincing evidence of probability of irreparable injury; or that injury must nec- essarily and inevitably follow if the apprehended or the threatened act is not restrained. See Crowder v. Tinklerop.cit and Pattison v. Gilford (1874) L.R. 18 Eq. 259.
Ex Parte Injunction
Normally, an applicant for an injunction must serve upon the defendant, a notice of the motion; this is to avail the defendant an opportunity of preparing his defence, and of being heard. But in certain cases, because of the urgency of the matter, which require speedy procedure, an ex parte injunction (that is an injunction that is granted before the defendant has had time or opportunity to defend or oppose the application and, or before the notice of the motion is served upon the de- fendant) may be granted. This type of injunction is granted for a very short period because it is granted solely on the evidence produced by the applicant. See In re: F. R A. Williams (1962) 1
All N.L.R 324. The defendant is, however, expected to be served before the next motion day when he would be expected to make a case for the discontinuance of the injunction before the trial of the substantive action.
In Group Danone & Anor. V. Volvic (Nig.) Ltd. (2008) 3-4 S.C. 32, the Supreme Court held: “That it is inappropriate vide Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 at 554, to have commenced contempt proceedings , against the respondent who have severally chal- lenged the court on the validity of the ex-parte order for which it is being proceeded against and when such legal challenge has not being resolved one way or the other.
That the circumstances whereby the respondent had to file the application for determina- tion by the lower court, clearly constitute exceptional circumstances, as things stood be- fore the trial court. The trial court was obliged in the circumstances, to have postponed the hearing of the contempt application till after it would have disposed with Respondent’s application before it for the discharge of its ex-parte order of injunction.”
Damages in Lien of Injunction
It is settled law that if a plaintiff applies for an injunction to restrain a violation of a right, be it a common law right or an equitable right, and if either the existence of the right or the fact of its violation be disputed, the onus of establishing that right and its violation is on the plaintiff. But once the onus is discharged, the plaintiff is, prima facie, entitled to an injunction to prevent the recurrence of the violation. See Imperial Gas Light and Coke Company v. Broadbent (1859) 7 H.L. 600, 612.
From the time of the passing of Lord Cairn's Act in 1858, the jurisdiction to award damages in addition to or in lieu of injunction has been given to the court. The exercise of this jurisdiction is discretionary; it will not be exercised if the result of its exercise will tend to turn the court into a tribunal for legalising wrongful acts; or where it will allow a wrong to continue simply because the wrong-doer is able and willing to pay for the injury he may inflict. See Shelfer v. City of Lon- don Electric Lighting Company (1895) 1 Ch. 287, 315.
In Maxwell Egbugara v. Nigerian Coal Corporation (2206) 4 FWLR pt. 345 p. 7396, the Court of Appeal held that:
“No order for interlocutory or interim injunction shall be made ex-parte or by motion on notice except upon condition that the appellant gives a satisfactory undertaken as to damages. For the applicant to succeed, even if he has shown that he has a good case and that the balance of convenience is on his side, he must show that damages cannot be an adequate compensation for his injury if he succeeds at the end of the day.”
The case of Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt.162) p.265 clearly dis- tinguishes between perpetual, interlocutory and interim injunction. The court held:
“(1) that the purpose of an application for an interlocutory injunction pending the determi- nation of the substantive suit is to keep the parties in status quo in which they were before the judgement or act complained of;
(2) an injunction sought pending the determination of the substantive suit can only be interlocutory and not interim as an interim injunction is one that can be discharged during the pendency of the substantive action;
(3) an application for an interlocutory injunction is not the same as that for a perpetual in- junction. Whereas a perpetual injunction can only be granted after a trial and the applicant has established his right and an actual infringement of it, an interlocutory injunction is granted pending the trial of the action in order to keep matters in status quo unti the issues in controversy between the parties can be tried and determined. …”
The remedy of injunction is available in a variety of cases and for the protection of innumerable rights at law and in equity.
4.0 CONCLUSION
The jurisdiction of the court to grant injunction is not limited to any particular cause or matter. The court may exercise its jurisdiction in novel cases provided it is just and reasonable and that the right sought to be protected is one recognised and enforceable either at law or in equity. The principle with regard to in- junction is that the court would grant an injunction for the protection of legally enforceable rights or the prevention of injury according to legal principles.
5.0 SUMMARY
In this unit, we studied the equitable remedy of injunction. We considered legally enforceable rights, types of injunction and circumstances when damages can be awarded in lieu of injunc- tion. You should now be able to: explain the remedy of injunction; list the legally enforceable rights; and differentiate the types of injunction.
6.0 TUTOR-MARKED ASSIGNMENT
(i) Differentiate between mandatory and perpetual injunction. (ii) When can damages be awarded in lieu of injunction?
7.0 REFERENCES / FURTHER READING
Hackney J., (1987) Understanding Equity and Trusts; London: Fontana press
Jegede M. I. (2007rep.) Principles of Equity; Ibadan: Unique Design/Prints Nwagbara Chigozie (2004 Rev.Ed.) Selected Cases on Land Law, Equity, Trusts, Taxation, Banking and Conflict of Laws; Lagos: CI Publications.