Written By: Halima Musa-Bakwunye
Principal Partner: Mubak Legal Consult
The subject matter ‘injunction’ is very wide , this seminar paper may not be able to cover all aspects of injunction. I shall however try to write on some essential areas of injunction with specific reference to injunction against Government and public authorities. As we all know the branch of law that deals with the administration of government Agencies is known as Administrative law. It imposes certain requirements on the agencies in the exercise of the powers and provides remedies against unlawful administrative acts. if a person has a right and that right is violated then such person should be entitled to some remedy, sometimes called compensation, for the violation of the right.[1]
Any good legal system produces efficient remedies which are regarded with utmost importance to the administration of justice. The Nigerian administrative law provides efficient remedies which are classified into three categories namely
(1.) Constitutional remedy
(2.) The ordinary private law remedies. Such as damages, injunction and declaration.
(3.) The public law remedy such as the prerogative remedies- mandamus, certioraris and prohibition. Nigerian administrative law.
This seminar would deal extensively on the second category which is the private law remedies with particular focus on injunction. It is common for individuals to seek for injunction against individuals and corporate bodies, and for Government to seek for injunction against individuals/ corporate bodies but it becomes an issue when individuals or companies seek for injunction against Government and public authourities. Thus with reference to some local and foreign cases we shall find out how practicable this is. To enable you have a proper understanding of this subject matter, we shall be looking at the following sub-topics.
(1.) Historic development of Injunction in Nigeria.
(2.) What is a remedy?
(3.) What is an injunction?
(4.) The different types of injunction.
(5.) Injunction against public authorities.
(6.) Injunction against the government.
(7.) The bais judge
(8.) Abuse of injunction
(9.) Special control on abuse of injunction by judges.
(10.) Conclusion.
Historical Development
In 1862, the British Administration made Lagos a British colony or settlement and established a court there. Under ordinance No 3 of 1863, the British Administration introduced English law into the colony with the effect from March 4, 1863;[2] the British government came into the territory with their law that is, English law. Since the British government colonised Nigeria they had to introduce the English law which is a by-product of colonisation. The territory, as a colony, had little or no choice in the matter. It is like a baby born into the world which takes it first steps in life instinctively in line with the idiosyncrasies, characteristic and ethos of the matter, its immediate kin[3].
The first statute enacted by the colonialists on the reception of English law in Nigeria is the interpretation Act[4]. While the statute dealt generally with the interpretation matters, section 45 there of made provision on the reception of English law. The Section provides as follows:
(1) subject to the provisions of this section and excepted in so far as no other provision is made by the federal law, the doctrines of equity, together with the statute of general application that were in force in England on the 1st day of January, 1900, shall be in force in Lagos and in so far as they relate to any matter within the exclusive legislative competence of the federal legislature, shall be in force elsewhere in the Federation.
(2) Such imperial law shall be in force so far as the limits of the local jurisdiction and local circumstances shall permit and subject to any federal law.
(3) For the purpose of facilitating the application of the said imperial laws, they shall be read with such formal verbal alterations not affecting the substance as to names, localities, courts, officers, persons, moneys, penalties, and otherwise as maybe necessary to the circumstances.
It is as a result of the above section that the English common law principle of interim injunction and injunction generally became part of Nigerian law. An English case that illustrates the position of the English common law’.
In Thomas Edison Ltd V Bullock,[5] Griffith, CJ, said:
“There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he had the opportunity of been heard on defence. But instances occur where justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction, by one party, or if irremediable or serious damage be imminent, the other may come to the court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action. ”[6]
In Earl of Mexborough V. Bower,[7] Langdale, MR, held that the granting of ex parte injunction is the exercise of a very extraordinary jurisdiction and therefore the time at which the plaintiff first had notice of the act complained of will be looked at very carefully in order to prevent an improper order being made against a party in his absence.[8]
REMEDY.
A remedy is anything a court can do for a litigant who has been wronged or who is about to be wronged. The two most common remedies are judgements that plaintiffs are entitled to collect sum of money from defendants and orders to defendants to refrain from their wrongful conduct or to undo its consequences. The court decides under the substantive law whether the litigant has been wronged; it conducts its inquiry in accordance with the procedural law. The law of remedies falls somewhere between substance and procedure, distinct from both or overlapping with both.[9]
INJUNCTION
Injunction is a standard equitable remedy in the form of a court order that either prohibits or compels a party from continuing a particular activity. And unlike a declaration an injunction has a sanction attached to the order to be enforced, if necessary by imprisonment, fine or any other sanction at the disposal of the court.[10]
In a general sense, every order of a court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam 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 circumstances of the case, commanding an act which it esteems contrary to equity and good conscience; as a remedial writ which courts issue for the purpose of enforcing their equity jurisdiction; and as a writ issuing by the order and under the seal of a court of equity.[11]
At the very core of injunctive relief is recognition that money damages cannot solve every problem. An injunction may be permanent or temporary. A temporary injunction or preliminary injunction is a provisional remedy granted to restrain activity on a temporary basis until the court can make final decision after trial. It is usually necessary to prove high likelihood of irreparable harm in the absence of a preliminary injunction before such an injunction may be granted; otherwise the party may have to wait for trial to obtain a permanent injunction.[12]
In deciding whether to grant an injunction the following conditions must be present before a grant can be made:
1. The plaintiff must show a strong prima facie case.
2. The plaintiff must usually show that he would suffer irreparable damage if the grant were not made.
3. The balance of convenience must favour the grant.
4. The applicant must satisfy the court that he has a legal right to be protected in the interim and the court should be satisfied that there is a real question to be tried in the substantive suit; That he has an arguable case. At this stage, the applicant is not required to argue with vigour his case as he is expected to do at the trial. All he needs at this stage is to establish a prima facie case .
5. He must satisfy the court that the situation is one of urgency or emergency calling for the quick or immediate intervention of the court in the absence of which irreparable damage or injury may result to the res.
6. The court should consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time the application and the time of the trial.
7. The applicant must make an undertaking as to damages, i.e to indemnify or compensate the respondent for any damages he may sustain as a substantive suit proves vexations and frivolous and accordingly.
8. If otherwise damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether in case of 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 damages for the loss he would have sustained by being prevented from so doing between the time of the application and the time of the trial.
9. If damages would be an adequate remedy and the plaintiff would be in a financial position to pay, there would be no reason in this regard to refuse an interlocutory injunction see Ilechukwu V. Iwugo 1989, N.W.L.R,(Pt 101)99, Igbinigie V. Yusuf (1993)2 NWLR9PT.274 207, Governor of Imo State V Anosike.
[1] P.A Oluyede: Nigerian Administrative law(2007) pg 491
[2] Obilade: Nigerian legal system pg 18.
[3] Niki Tobi:. The law of interim injunction in Nigeria pg1
[4] Cap 89, laws of federation and lagos, 1958
[5] [1912] 15 CLR 679.
[6] Ibid., at page 681.
[7] [1843] 7 Beav. 127.
[8][8] Ibid., at [age 131. See further in respect of the position of English common law, Fenwick v. East London Railways Co. [1882] 21 Ch.D. 490; Piperno v. Harmston [1886] 3 TLR 219; Fraser v. Whalley, Gartise [1871] All ER Rep. 1456; Bolton v. London School Board [1878] 7 Ch.D 766;Re Johnson ex parte Abrams [1884] 50 LT 184; Allport v. Securities Corporation [1895] 64 LJ CH 618; Lyods Bank Ltd. v. Medway Upper Navigation Co.[1905] 2 KB 259; Beese v. Woodhouse [1970] 1 All ER 769; [1970] 1 WLR 586.
[9] Bryan A. Garner, Blacks Law Dictionary 7th Edition(1999) pg 1,296
[10] Akinwole Ogunlola, Esq ‘Nigeria Courts Injunctions and Electoral Process’.(Article) www.villagesquare.com
[11] Bryan A. Garner, Blacks Law Dictionary 7th Edition pg 788
[12] Akinwole Ogunlola, Esq ‘Nigeria Courts Injunctions and Electoral Process’.(Article) www.villagesquare.com
