An injunction is an order of the Court by which a Party (person at law) is required to do, or refrain from doing a particular thing. This order may be either restrictive which means it is preventive or mandatory in which case it is compulsive. The injunctive relief is equitable and is at the discretion of the court. This discretion is exercised
according to laid down principles. The grant of an interlocutory injunction is related not to the most just method of protecting or preserving established right, but to the most effective and convenient method of preserving the status quo while the rights are being established. This injunctive relief is granted after contest inter-parties.
In recent times, the locus classicus on the principles relating to the issue of interlocutory injunctions, is the English case of American Cynamid Co. v Ethicon Ltd . In this case, Lord Diplock delivering the speech of the Law Lords dealt with the principles in extenso. Suffice to say that the analysis of the Learned Law Lord is the basis upon which these principles have been applied ever since. The case involved an application for a quia temet interlocutory injunction to restrain the infringement of a patent. The High Court decided that upon the conflicting affidavits before the court, there was enough evidence to show that the applicants had a prima facie case of infringement of their patent right. The Justices of the Court of Appeal on the other hand held that upon the said conflicting affidavits evidence, the applicants had not shown a prima facie case of infringement. Lord Diplock said that the error in the reasoning of both the High Court and the Court of Appeal arose from the misconception that an applicant for the grant of an interlocutory injunction had to satisfy the court that he had a prima facie case against the respondent and the case went to trial upon no other evidence than that before the court. At the hearing of the application, the plaintiff would be entitled to judgment for a permanent injunction in the same terms as the interlocutory injunction sought. It was his Lordships’ view and rightly so that there is no such rule.
The principles arising out of the judgment of the Law Lords in the above case are as follows:
- The grant of an interlocutory injunction is a remedy that is both temporary and discretionary.
- An application for an interim injunction postulates that the applicant has a right, the violation of which he seeks to prevent and to do so effectively, he wants the Court to keep matters in status quo (The state in which things are).
- The applicant must show that there is a serious issue to be tried.
- The applicant must show that the balance of convenience is on his side which means that he stands to lose more if the status quo ante is not maintained until the final determination of the case.
- The applicant must show that he will suffer irreparable damage or injury if the respondent is not restrained.
- The conduct of the applicant is relevant. He cannot ask for an injunction on the basis of fraud. (He who comes to equity must come with clean hands) delay by the plaintiff may adversely affect the application. (Delay defeats equity). It is not possible to get an injunction to restrain an act, which has been carried out.
- The applicant must give an undertaking as to damages. The plaintiff/applicant by this accepts to be liable for any damage suffered by the defendant as a result of the order of injunction if he (plaintiff/applicant) eventually losses the action.
It is imperative that an application for the grant of an interlocutory injunction must reflect the above mentioned principles in his affidavit before the Court. These principles are applied in the Nigerian
cases of Kotoye v CBN & Others and Obeya Memorial Specialist Hospital & Another v A. G. of the Federation & Anor . It is important to note that the applicant need not prove any legal right at this stage. This is a general misconception and it happens with monotonous regularity in the rulings of the High Court and sometimes in that of the Court of Appeal. This in fact was the error the Court of Appeal fell into in Obeya case . It is submitted with respect for Lawyers and Judges engaged in such application and adjudication to heed the words of Lord Diplock in the American Cynamid case
“My Lords, where an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the right or the violation of it, or both is uncertain and will remain uncertain until final judgment is given in the action.”
The Court of Appeal in the recent case of Adeyemi v Olakunri held that the applicant had to show the existence of a legal right before an interlocutory injunction could be granted in his favour. The question for determination was whether the court below was correct to insist upon strict proof of the plaintiffs’ capacity, standing and proprietary interest in the consideration of an application for interlocutory injunction. Learned Counsel for the applicant’s submitted that the court below was wrong when it insisted upon proof of the plaintiffs’ interest as executors by asking for the production of the testator’s will and probate. Learned Counsel supported his submission with the decision of the House of Lords in American Cynamid v Ethicon and Obeya Memorial Hospital v A.G. of the Federation & Others . He also referred to Ladinni v Kukoyi where it was decided that where an interlocutory injunction is sought by a plaintiff whose claim the title to the land in dispute is founded on a conveyance. It does not necessarily follow that in order to succeed on the application, he must exhibit his deed. The Court of Appeal Sulu Gambari JCA delivering the lead judgment with which Tobi JCA and Ubeazonu JCA agreed held that the plaintiff/applicant had to establish his right, he had to show his loss failing which the court had no jurisdiction.
It is with the greatest respect that I submit with force that the Court of Appeal erred in their judgment. I am fortified by the authorities cited by Learned Counsel for the plaintiffs/applicants.
The applicant must also in his affidavit show that his claim is not frivolous or vexatious, that ipso facto, there is a serious issue to be tried. It is the conflict in the claims of both applicant and respondent that goes to show that there is in fact a serious issue to be tried. It could be said quite safely that at this point in the litigation, the parties have joined issues.
With regard to the balance of convenience, Lord Diplock in the American Cynamide case stated
“The governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately 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 of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted however strong the plaintiff’s claim appeared to be at that state. If, on the other hand, 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, on the contrary hypothesis that if 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 doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.”
The balance of convenience factor is crucial to the determination of any application for an interlocutory injunction. Recently, the Federal High Court sitting in Lagos restrained a commercial airline from operating on a claim of breach of contract by the owners of the airline. It is submitted with respect that there will be few instances if at all where the balance of convenience in such a matter will lie on the part of the applicant. If for example the airline is restrained from operating because the applicant claims that the owners owe him money, it is important that the airline is allowed to operate in order to pay off the debt owed. The Supreme Court in the Kotoye v CBN case has stated that it is vital that an undertaking as to Damages to be given by the applicant. In that case, Nnaemeka – Agu JSC said:
“it is my view that a necessary corollary to the fact an undertaking as to damages is the price that an applicant has to pay for the order of interlocutory injunction in that failure to give the undertaking leaves the order without a qui pro quo, and so should be a ground for discharging the order”. He said further that “it is therefore my view that saves in recognized exceptions, no order for an interlocutory injunction or interim injunction should be made exparte or on notice, save upon the condition that the applicant gives a satisfactory undertaking as to damages”.
There are other principles relevant to the grant of interlocutory injunctions bordering on the practice and procedure of the Courts. These principles must as of necessity be adhered to. In Adebomi v Ilaro District Council . It was held that an interlocutory injunction can only be granted by the court before which the subject matter of the order is pending. A court cannot grant an injunction in respect of a matter before another court.
It is also important to note that an interlocutory injunction is applied for after the action has been instituted and remains in force unless thee is a subsequent contrary order up to the final hearing of the suit. It has a binding effect until it is discharged. .
There are instances where the act sought to be restrained has been done or is being done. It is important at this stage for the applicant to know precisely how to frame the order sought from the court because one of the guiding principles pertaining to the grant of such injunctions is that an Interlocutory Injunction is not a remedy for an act which has already been carried out. . If the Act has been done, there is not much the Court can do, the court will not issue an order that is not enforceable. If however the act is being done, that is, there is a continuing process, then the order sought from the court can be framed so as to restrain the defendant or respondent from further committing the said act.
It is unusual for a defendant to apply for an interlocutory injunction. However, he may do so after he has given a notice to defend the action, or after he has entered an appearance .
It is not uncommon that a Motion on Notice for an interlocutory injunction has been filed but on the day it is to be heard, it cannot be taken for various reasons e.g. other engagement of Counsel or the pressure of business in court. The court may in such a situation grant an interim injunction until the matter can be heard. .
This injunction when granted can be discharged at anytime either by the court suo moto or on application by the respondent. The court has an inherent jurisdiction to discharge any such interlocutory injunction. When an injunction has been granted, and it affects a person who was not party to the action, he can apply to the court for a variation or discharge of the injunction .
It is sometimes possible that an interlocutory injunction is granted based on a wrong appreciation of the law, in such a situation, the plaintiff has no right to its continuance.
Other instances where an interlocutory injunction will be discharged include where the applicant has misled the court by putting facts which are untrue before the court, in other words where the application is not Bona Fide, and also where the conditions relevant and necessary to the grant of the injunction have not been satisfied e.g. where the applicant has not given an undertaking as to damages.
The application of these principles will vary and depend on the peculiar facts before the court at any given time. It is however very essential that legal practitioners and judges have sound grasp of the principles in their daily appraisal of facts because the use of these injunctive reliefs is rampant in our judicial process.