The Trusted advisors Legal Digest: The role of injunctions in the Nigerian judicial system

Injunctions are court orders that either prohibit a party from acting against another in a suit or they may require the party to take action that supports the court’s decision. The goal is to protect a party’s legal or equitable rights from an imminent violation. Injunctions are primarily a preventive rather than a curative legal remedy and is only intended as a remedy as it does not give rise to legal action. Sometimes an injunction is the only remedy needed by the claimant, and other times it is a part of the relief that one or more parties seek. Injunctions can be obtained for a variety of reasons, such as contract enforcement, nuisance prevention, or land protection. Recent advancements have also made it possible to obtain injunctions against third parties.

The authority to grant injunction in Nigeria and other forms of equitable reliefs is found in the Constitution of the Federal Republic of Nigeria 1999 which confers on the Federal or State High Courts a wide jurisdiction to grant injunctions on such terms as it thinks fit and where it is just and convenient to do. The power to issue injunctions is incredibly discretionary and flexible, and it has been used to achieve justice in a wide range of situations. Thus, injunctions need special consideration because they are a very important remedy in practically all legal circumstances.

PRINCIPLES OF INJUNCTION

Even though an injunction is a discretionary equitable remedy, there are requirements that an applicant must fulfil to persuade the court to award this relief. He needs to demonstrate that:

He has a legal right which is threatened with violation or is in the process of being violated that the there is a serious question to be tried.
The balance of convenience is on his side, that is, that more justice will result in granting the application than in refusing it
Damages cannot be an adequate compensation for his injury, if he succeeds at the end of the day
He is ready to make an undertaking as to damages if the Court finds he is not entitled to the injunction as claimed.

CLASSIFICATION OF INJUNCTIONS

MANDATORY AND PROHIBITORY INJUNCTION

Injunctions can be categorised as mandatory or prohibitory. A mandatory injunction is a court order to correct a wrongdoing while a prohibitory injunction, on the other hand, prohibits the performance of an act, such as trespassing on another person’s property. A prohibitory injunction is a judicial order that forbids performing, continuing, or repeating a wrongdoing and is the most common one that courts issue.

INTERIM INJUNCTION

This is a temporary court order that prevents a person from taking certain actions towards the applicant or the subject matter of the suit until the hearing and decision of an interlocutory application. It is only given as a stopgap until an interlocutory injunction application is heard and its lifespan is incredibly brief. An order for interim injunction is initiated with an ex-parte motion accompanied by an affidavit outlining the specific facts that support the order’s grant without giving the opposing party notice and an opportunity to be heard. They are granted to preserve the subject matter or the res when there is a chance that it will be destroyed permanently as it would be pointless to hold proceedings on a destroyed subject matter.

INTERLOCUTORY INJUNCTION

An interlocutory injunction is a temporary court order to maintain the status quo until the principal legal action is resolved; they are granted while the primary action is pending. The position for the grant of interlocutory injunction was further confirmed in the case of Leasing Co (Nig Ltd) v Tiger Ind. Ltd where it was held that an application for injunction will always be granted to support a legal right. Therefore, the applicant’s most crucial requirement is to demonstrate that he has a legitimate right that is in danger and must be safeguarded. The primary goal of the application is to shield the plaintiff from harm caused by a violation of this right for which he is not sufficiently entitled to damages compensation.

MAREVA INJUNCTIONS

These are freezing injunctions, and the foundation for them comes from the case of Mareva Compania Naviera SA v. International Bulkcarriers SA, in which the Court of Appeal determined that the court had the authority to issue an injunction ahead of judgement to prevent the defendant’s assets from being transferred from the jurisdiction where there was a risk of them being transferred. The purpose of a Mareva injunction was to stop dishonest defendants from hiding their assets from the Courts to evade paying the fines or penalties imposed by the Courts. According to Sotiminu v. Ocean Steamship, an applicant for Mareva must meet the following requirements:

• the applicant has a cause of action against the defendant, which is justiciable in Nigeria,
• that there is a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the plaintiff may obtain,
• that the applicant has made a full disclosure of all material facts relevant to the application,
• that he has given full particulars of the assets within the jurisdiction,
• that the balance of convenience is on the side of the applicant.
• that he is prepared to give an undertaking as to damages.

A Mareva injunction may not be granted if he is unable to meet any of these requirements set forth by the court. Mareva injunctions are meant to prevent the defendant from impeding the plaintiff’s ability to execute judgement, not to destroy the company’s activities if the plaintiff wins a judgment.

ANTON PILLAR INJUNCTION

This was first established in Anton Piller K.G v. Manufacturing Process Ltd and this injunction permits the plaintiff to demand entry to and enter the defendant’s or proposed defendant’s premises to search them and remove documents and other relevant items which might form evidence in his action or proposed action against the defendant. Typically, this order will be granted ex parte to enable the applicant to exercise it before the defendant realizes the risk of having his property searched. In granting or refusing to grant an Anton Pillar Injunction, the Court is guided by three considerations as follows:

• there must be an extremely strong prima facie case against the defendant
• there must be clear evidence that the defendant has in his possession incriminating documents or things with a real possibility that he may destroy such material before an application is made to the court.
• the potential or actual damage must be very serious for the Applicant.

The Anton Piller Order is an order made in the exercise of the inherent jurisdiction of the court to do justice as occasion demands. Because it is an injunction, the prerequisites for granting one must also be met. This order cannot be used as a substitute for a search warrant, according to the court in the Anton Piller KG case. The order instead imposes pressure on the defendant or commands him to allow the claimant to enter by threatening contempt of court if the order is disregarded. The Mareva injunction may also be used by attorneys handling copyright infringement as it gives a copyright holder the opportunity to take an alleged copyright infringer by surprise.

INJUNCTION PENDING APPEAL

This specie of injunctions is made in the exercise of the rare jurisdiction where a trial court is faced with when it must have delivered judgment or ruling and become “functus officio” in respect of the matter before it. The purpose of an injunction pending appeal is to preserve the status quo while the appeal is being decided and it is usually by a plaintiff whose claim was not successful. Its goal is to stop the defendant from continuing the actions that the plaintiff had hoped to stop. A counterclaimant who is unsuccessful can nevertheless apply for an injunction while their appeal is pending. Furthermore, if the plaintiff’s judgement was just declaratory, the defendant would still be entitled to an injunction pending appeal, even if the plaintiff’s claim were upheld.

CONCLUSION

Injunctions are issued by the Courts to uphold a person’s rights and stop wrongdoing. Therefore, the importance of it cannot be overemphasized since the decision to grant or deny an injunction can determine the outcome of the entire issue. An empty judgment is one that cannot be implemented because the res (the subject matter) has been destroyed or the status quo has been irrevocably changed prior to the determination of the substantive suit. As a result, injunctions are a crucial remedy that almost every field of the law must consider.

Toluwani Kalaro is an associatie in the Conflict management and dispute resolution practice group at the Trusted Advisors