Written By: Halima Musa-Bakwunye
Principal Partner: Mubak Legal Consult
TYPES OF INJUNCTION.
There are two main kinds of injunction, Prohibitory injunction which directs a person not to do or continue with a wrongful act (negative effect) and mandatory which affirmatively directs the doing of an act( positive effect). Other types of injunction include:
· Exparte injunction: A preliminary injunction issued after the court has heard from only the moving party.
· Interim injunction: interim injunction is a temporary court order prohibiting a person from a specified act or commanding a person to undo some wrong or injury. An interim injunction is a temporary order made pursuant to motion ex parte pending the hearing and determination of a motion on notice, filed or to be filed before the court. It is an injunction granted to last until a named or defined date or until further order or pending the hearing of a motion on notice between the parties. See Kotoye v CBN [1989] 1 NWLR pt98 pg419, Onwudilike v Nwokedi [1991] 1 NWLR pt102, pg229 at 232; Ita v Nyong [1994] 1 NWLR pt 318 pg56[1]. Is properly used in 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 application ex parte, that is without notice to the other side, as is appropriate. By their very nature injunctions granted on ex parte applications can only be properly interim in nature. They are made without notice to the other side.
· Interlocutory injunction: this is a court’s order made pursuant to a motion on notice prohibiting someone from doing some specified acts or commanding someone to undo some wrong or injury pending the final determination of the substantive suit. Kotoye v CBN supra.
· Mareva injunction: Mareva injunction is a peculiar kind of injunction. Whereas injunctions generally relates to the subject matter of the suit, Mareva injunction are granted over assets, or res not even subject matter of the suit. The development of this kind of injunction arouses out of the need to secure the position of the possible judgement creditor and prevent a situation where by the prospective judgement debtor will defeat the action by either dissipating his assets or removing them from jurisdiction. The form in which Mareva injunction are applied today arouse out of English case of Mereva companies Naviera SA “The Mareva 1980” l AU ER 213[2].
· Mandatory injunction: An injunction that orders an affirmative act or mandates a specified course of conduct. Also turned affirmative injunction. Their history is a curious one used when to prevent the breach of an obligation it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of and also to compel performance of the requiste acts.[3]
· Permanent injunction: An injunction granted after a final hearing on the merits. Despite its name a permanent injunction does not necessary last forever.
· Perpetual injunction: this is an injunction granted by the decree made at the hearing and upon the merit of the suit, the defendant is hereby perpetually enjoined from the assertion of a right, or from the commission of an act, which will be contrary to the rights of the plaintiff..
· Preliminary injunction: A temporary injunction issued before or during trial to prevent irreparable injunction from occurring before the court has a chance to decide the case. A preliminary will be issued only after the defendant receives notices and an opportunity to be heard. Also termed interlocutory, temporary injunction, provisional injunction.
· Preventive injunction: An injunction designed to prevent a loss or injury in the future.
· Prohibitory injunction: An injunction that forbids or restrains an acts. This is the most common type of injunction.
· Quia- timet injunction:(Latin “because he fears”) An injunction granted to prevent an action that has been threatened but has not yet violated the plaintiff’s right.
· Reparative injunction: An injunction requiring the defendant to restore the plaintiff to the position that the plaintiff occupied before the defendant committed the wrong
· Special injunction: An injunction in which the prohibition of an act is the only relief ultimately sought, as in prevention of waste or nuisance.[4]
Unlike a declaration some doubts have been expressed on the question whether an order of injunction would lie against the government or any of its departments or officers in their capacity. In addressing this issue we shall be looking at injunction against Public authorities and government respectively.
WRITS AND INJUNCTION.
The provisions of Order 2 Rule1 , makes it clear that the orders which the court can make are the same as those provided for by the Section 46 of 1999 constitution. These orders are the familiar orders of injunction, make declarations, writs of certiorari, prohibition and mandamus.
Writ of Mandamus; A writ of Mandamus is in the form of a command directed to some inferior court, tribunal or board or some corporation or person requiring him to do a duty specified therein. This duty results from official position of the party to whom the writ is directed. The writ compels the tribunal or person to exercise a duty which it possesses but declines to do. This is an appropriate remedy for the enforcement of a plain, positive, specific and ministerial duty existing and imposed by law but which the officer or authority refuses or neglects to fulfil.
When to prevent a breach of an obligation it is necessary to compel the performance of certain acts the court may in its discretion grant an injunction to prevent the breach complained of and also to compel performance of the requisite acts. This is termed mandatory Injunction. The similarities between a writ of mandamus and a mandatory injunction are worth nothing. In both instances the court has got the power to compel a person to perform a duty which he is bound to do.[5] A writ of ,mandamus is issued when there is a specific legal right but no specific remedy for enforcing it. To get a writ of mandamus the petitioner must show that he has a legal right to the performance of a legal duty by him against whom mandamus is sought and secondly there must be a legal duty incumbent on the officer or authourity in his public character.
Writ of habeas corpus.
The process of Habeas corpus is a safe guard against executive excess and lawlessness, it is not so much against judicial verdict. When persons are in detention in pursuance of a conviction the application of the principle is much stricter. It is the prerogative right by which the reasons and validity of detention of a person is investigated in a summary manner. If the authourity having the custody of the person fails to satisfy the court that the arrest is not malafide or in accordance to law he is entitled for writ.[6]
Writ of prohibition
A writ of prohibition is issued only as a preventive remedy by a superior court to an inferior court or a quasi judicial tribunal when such court or tribunal has usurped jurisdiction, with a view to keep them within bounds of the jurisdiction. It is not a discretionary writ; it is a writ of right and not of course. It is issued on the application of a party alleging that the tribunal is about to act in excess of its jurisdiction or assumed jurisdiction when in fact it has no jurisdiction.[7]
Writ of certiorari.
A writ of certiorari is issued for the purpose of correcting an error of jurisdiction ; when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction or when it is shown that the order of the inferior tribunal suffers from an error which is apparent on the face of the record.
A writ of certiorari may be issued at the instance of the state government when a court acts illegally and there is an error on the face of the record.
Modes of Applying for Injunction.
Motion Ex parte: In civil procedures ex parte motions are used where the interests of the other party will not be prejudiced. If he is not put on notice. Therefore where it is only the interest of the particular applicant that will be affected or where from the nature of the application there will be no opposition to it applications are usually made ex parte.
Motions ex parte are also used whenever the law provides that a particular application may be made ex parte.
It is important to note that the presence in court of a person to be affected by the grant of an ex parte application or order during the hearing of such an application does not have any effect as he has no right of audience in respect thereto.[8]the very nature of ex parte applications requires that full disclosure of facts be made to the court where such disclosure is not made it will be a ground for setting aside any order made or the basis of the application. The court has an inherent power to revoke an order ex parte once it becomes aware that it gave its leave under a misapprehensive or the applicant had suppressed relevant facts[9].
MOTION ON NOTICE.
Here, the adverse party or the party interested in the subject matter of the application is given prior notice of it in the sense that the motion is addressed to him and a copy thereof served on him. By being given the opportunity to contest the grant or otherwise of the application by the court.[10]
[1] Ibid pg187
[2] Introduction to civil procedure. Ernest Ojukwu, Chidi N. Ojukwu 2002- Helen Roberts Research and Resources Ltd Pg 189
[3] G. S. Gupta, law of injunctions, orient publishing company pg 493
[4] Bryan A. Garner, Blacks Law Dictionary 7th Edition(1999) pg 788
[5] G. S. Gupta, law of injunctions, orient publishing company pg797
[6] Ibid pg 800
[7] Ibid pg801
[8] Ernest Ojukwu, Chidi N. Ojukwu :Introduction to Civil Procedure. 2002-Pub: Helen Roberts Research and Resources Ltd Pg 172
[9] Ibid Pg 173.
[10] Ibid Pg 173.
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