The Significance of Injunctions in the Dispensation of Justice in Nigeria

The Significance of Injunctions in the Dispensation of Justice in Nigeria

CHAPTER ONE

Objectives Of Study

This research work aims at identifying the significant significance of the equitable remedies of interim and interlocutory injunctions in justice dispensation in Nigeria. Furthermore, the objectives this research work sets out to achieve includes among others:

Critically discuss and analyze the interim and interlocutory
Examine the problems associated with some of the conditions and procedure for the grant of the interim and interlocutory injunctive
Determine the significance of interim and interlocutory injunctions towards attainment of justice in
Assess the attitudes of courts and Counsel in handling the matters for interim and interlocutory injunctions.

CHAPTER TWO

NATURE AND SCOPE OF INTERIM INJUNCTION

Introduction

Injunction is a court order prohibiting someone from doing some specified acts or commanding someone to undo some wrong or injury. In other words, it is an equitable order restraining the person to whom it is directed from doing the thing specified in the order or requiring in exceptional situations the performance of a specified act.¹ In the researcher‟s view; injunction is any order granted by a court to restrain or prevent a particular action, conduct, misconduct or omission by the responding party. In other instance, an order of injunction is obtained or granted by the court to compel the performance of a duty, contractual or official required of the responding party or the defendant. An interim injunction is a short duration injunction. It typically arises in an urgent case, it is sought without time for a judge to really hear from both sides and make a decision.

However, „interim‟ means in the meantime, between, while². This is simply an order sought by a party prior to the appearance of both parties before the court for the hearing and determination of motion on notice for interlocutory injunction. Interim injunction is usually granted ex-parte and in a situation of utmost urgency³.the main objectives of this chapter are to analyze the interim injunction, evaluate its significance in the dispensation of justice in Nigeria, itemize and critically discuss the conditions and or principles for the grant of interim injunction, the courts with the powers and jurisdiction to grant or refuse the interim injunction. This is with the view to attempting proffering solutions to the difficulties which applicants seeking for interim injunction often encounter. Now, a look at the word “injunction” and understand what it means before dwelling into the proper details of the subject matter of the research.

A court can grant an “interim” injunction to protect the applicant for a very limited time (usually 7 days). It can be granted on an ex- parte basis – meaning that it is granted in the absence of the respondent. An interim injunction is granted to last until a definite date or until further order is made or pending the hearing or determination of a motion on notice. The basic difference between an interim injunction and interlocutory injunction is that interim injunction is granted in cases of urgency and it is applied for by motion ex- parte. However, all injunctions have general conditions that are considered before they are granted. Interim and interlocutory injunctions which are the subject and scope of this research are not exception. These general conditions would be briefly considered below.

General conditions to be considered in the grant of injunctive orders

There are basically two conditions to be taken into consideration in granting whatever sort of injunctions being sought before any court. These general conditions are; the application must be brought bona fide and the applicant must not delay in seeking the injunction.

The application must be brought bona fide

Justice and equity always demand that whoever requires any injunctive order from the court, he should make such an application bona fide. This made the equitable maxim of he who comes to equity must come with clean hands‟‟ very paramount in an application for any equitable reliefs which injunction is inclusive. It is clear here that for an applicant to be entitled to whatever type of injunction he must go to equity with unsoiled hands that is in good faith.⁴ This implies that at whatever time the court realizes that the application for injunctive order is brought mala fide then it will not grant it.⁵ This condition as earlier on stated is applicable to all sorts of injunction.

CHAPTER THREE

NATURE AND SCOPE OF INTERLOCUTORY INJUNCTION

Introduction

This chapter aims at achieving certain objectives such as analyses of the Interlocutory injunction, Evaluation of its significance in the dispensation of justice in Nigeria. In this chapter the writer would also want to Itemize and critically discuss the conditions and or principles for the grant of Interlocutory injunction, the nature and scope of interlocutory injunction, the courts with the powers and jurisdiction to grant or refuse the Interlocutory injunction. This is with the view to proffering solutions to the problems the applicants seeking for Interlocutory injunction always encounter.

Interlocutory injunction

Interlocutory‟ means provisional, interim, temporary and not final. This is a court order usually obtained after the expiration of the interim injunction and before the final determination of the suit and or application before the court.³⁶ Nevertheless, an Interlocutory injunction is issued during trial to prevent an irreparable injury from occurring before the court has a chance to decide a case on its merit. Adeleke v. Lawal (Supra). This type of injunction is issued only after the Defendant is confirmed to have had notice and opportunity to be heard.³⁷ The object of Interlocutory injunction is to keep the parties in an action to the status quo ante pending the hearing and determination of the substantive suit.

This Interlocutory injunction plays a significant role in the protection of litigants‟ rights, preservation of the subject matter, maintenance of status quo ante pending the hearing and determination of the substantive suit. The order usually restrains the respondent from continuing the action complained against him by the applicant or in some cases commanding him to do certain action or actions pending the hearing and determination of the substantive suit.³⁹ Normally, an application for an order of interlocutory injunction must be served upon the defendant, a notice of the motion; this is to avail the defendant opportunity of preparing his defence and being heard.

Nonetheless, an Interlocutory injunction is obtained by way of motion on notice, that is, by putting the respondent on notice of the suit of the applicant against him.⁴⁰ The life span of an Interlocutory injunction lapses at the determination of the motion on notice on its merit. It is required that the motion together with all the affidavits be served on the respondent.⁴¹ However, the respondent has 7 days to file his counter affidavit, failure to do so, means the court should believe all the facts deposed to in the affidavit in support of the applicant‟s motion on notice and grant all the prayers therein.

The service may be affected by any person, not withstanding that he is not an officer of the court and without the leave of the court.⁴³ More so, where a party is represented by Counsel, service on the Counsel is deemed a proper service.⁴⁴ There should be at least two clear days between the service of the motion and its hearing, unless the court gives special leave to the contrary.⁴⁵ In Lagos Rules, it is mandatory that every motion should be served within five days of its filing.⁴⁶ Written address is also required.⁴⁷ A person may be served with a notice or put on notice of a motion even though he is not a party to the substantive suit, if his interest may be affected by the order sought. Where the other party intends to oppose the motion, it shall file the written address and counter- affidavit within 7 days of the service of the motion on him depending on the type of order sought or originating process filed before the court. The applicant in turn, has 7 days after the service of the counter affidavit on him to file an address in reply on point of law and further and better affidavit which also depends on the originating process.⁴⁸ At the hearing, if the judge is of the opinion that any person who sought to have been put on notice, had not been put on notice, the court may adjourn the hearing to another date until all the parties are duly served. Where the court adjourns the hearing, it will do so on terms as it deems fit.

CHAPTER FOUR

CONSEQUENCES OF DISOBEDIENCE TO INTERIM

AND INTERLOCUTORY INJUNCTIVE ORDERS

Introduction

In the preceding chapters, the researcher centered on the interim and interlocutory types of injunctions and other related issues, such as procedure for the application for injunctive orders, instances for application of injunctive orders, instances where Injunctive order cannot apply and conditions to be fulfilled before the orders can be granted by the court. This chapter would focus on how interim and interlocutory injunctive orders being sought and obtained are served on the respondents and the procedure for the service as well as the consequences of disobeying them.

Service of the order of injunction

When an application for orders of interim or interlocutory injunctions succeeds the next task ahead is how such an order obtained should be served on the respondent in order for the applicant to enjoy the fruit of his Application. This is because service is what often gives the respondent notice of the existence of such order of the court against him particularly interim order which is usually granted in the absence of the responding party.

The service of an order is meant to bring to the attention of the respondent the existence of an order against him. The issue of service is fundamental and where an order is not served, the court would be constrained to take any step further towards the execution of such an order¹. Where there is failure to serve a party with the copy of the order for injunction, it goes to the root of the proper procedure of litigation. Also, a person required to be served but who was not served is entitled to have any order made against him set aside as a nullity because service is a condition precedent for a court assuming jurisdiction.² Service of an order of injunction like every other court process is the duty of the Sheriff or Bailiff of the court or police constable or any other person so appointed to serve court process.

Service may be personal or by substituted means. Personal service means the delivery of the copy of the order or court process to the person directed in the order or process personally. In certain situations, personal service may not be required; for instance, where a respondent authorized in writing his legal practitioner to accept service and such a legal practitioner enters appearance on his behalf

Be that as it may, there are two modes of serving the order of injunction namely order: Personal service, and substituted service.

Personal Service

This is the delivery of the injunctive order to the person to be served personally. In some cases, personal service may not be required where the respondent has authorized his legal practitioner in writing to accept service and such a legal practitioner enters appearance on his behalf. The written authority given to the legal practitioner must be attached to the memorandum of appearance filed by such legal practitioner.³ In Lagos, persons who are under legal disability shall be served through their guardian. However it is provided in this rule of court that personal service on a minor who is over 16years of age living independently or doing business is good and sufficient.⁴

In Abuja and Kano, service on an infant shall be affected on his Father or guardian. If he has none, then upon the person with whom he resides or under whose care he is. Where after due diligence personal service of the order of court proves to be practically impossible, the available option to the applicant in law is to resort to substituted service where it is allowed, by applying for, same before the court.

Substituted Service

This situation usually arises where the respondent could not be personally served with an order of the court after due diligence by the serving officer/person. Where a court process cannot be effected on a party personally, substituted service may be resorted to.⁶ Any party wishing to apply for substituted service may bring an application ex-parte, for leave of court, to effect such service. Such an application will be supported by an affidavit disclosing various attempts made at personal service. When an order is granted upon satisfaction by the court, then the other party would be served by the substituted means. It should be noted that substituted service is only relevant for natural persons. Therefore, an artificial person such as a company cannot be served by substituted service.

CHAPTER FIVE

CONCLUSION

Summary

Injunctions are equitable remedies which were first introduced in England to mitigate the hardship of the Common Law. Nigeria later on encapsulated some of those equitable remedies into its legal system. Since the inception of these principles in Nigeria, many achievements were recorded in the area of justice dispensation in various societies and the country in general. Even though, the grant of these equitable remedies are left within the powers or discretion of the courts, the courts are notwithstanding enjoined to exercise such powers or discretion judicially.

Injunction as a widely accepted and discretionary order of the court has gained currency in the administration of justice in Nigeria and is also prevalent and applicable in diverse aspects of human endeavour and transactions. It is an indispensable remedy in contract where it is ordered to prevent breach thereof. It is applicable in trust to enforce those obligations of trustees for the interest of their beneficiaries. Injunctions are also relevant to resolve conflicts or disputes that ensue from any transaction or agreement. Also injunction is used to prohibit companies from acting beyond the scope of their functions (that is ultra vires). Injunction is also granted to prevent defamatory matters or publications and it can also be granted to regulate and control family matters and judicial proceedings.

The examination of injunctive principles within the matrix of the Nigerian courts shows that legal decision making is best understood as a complex mix of principles and policies and Nigerian courts makes decisions more often having regards to public interest. Finally, though injunction is an equitable remedy, the court must act judiciously in granting or refusing the injunction and must necessarily take into consideration amongst other things the conduct of the parties. As no two cases are the same, injunctions should be granted to the peculiar facts of each case, but in any circumstance, justice must not only be done but must be seen to be done.

Throughout this work, an attempt has been made to critically deal with the equitable remedies of injunction, their types, the conditions for their grant, the areas of application, instances where the orders are not granted, the attitude of courts and lawyers towards the matters for injunction, the procedure for the enforcement of the injunctive orders, the consequences of disobediences to the orders of injunction and the role these orders play in the attainment of justice in Nigeria. In a n nutshell the entire work is divided into chapters as follows;

Observations

Preparation, service, further hearings and enforcement are all essential parts of the process for obtaining injunctions. The costs of making an application for an injunction can therefore be high; although a large amount of the work may ultimately have been necessary for the purpose of the litigation itself, and the injunction process may lead to a resolution of the underlying dispute without the need for a trial.

It has been observed that there exist a fundamental contradiction or legal conflict between the constitutional doctrine of Audi altera patem rule for the fair hearing of all the parties before the court decide on a matter on the one part and the rules of courts and the various High Court Rules which specifically provide and empower the courts to hear one party, consider and grant or refuse the application where the court is faced with an application for interim injunction. These conflicts still exist in the legal parlance for application of injunction; that is the Constitution provides that both sides of the parties must be heard before the determination of any matter before the court and the rules of court provide for hearing application ex-parte by hearing one side.
It is also observed that two fundamentally conflicting principles of law both of which a condition for grant of an interlocutory injunction; one is a judge faced with the determination of an interlocutory application for injunction must limit his authority to the motion or interlocutory applicant alone he must not go into the merit of the case to ensure that before he considers and grants the applicant for interlocutory injunction, the substantive case of applicant must reveal to him that, it contains or discloses serious triable issue.
It has been observed that the grant or refusal of the injunctive orders as provided by the rules of courts and as determined in the decided cases, is completely within the discretion of the court despite their significance in the dispensation of justice.
Another fundamental observation made is that, some of the injunctive orders being refused by courts are because the applicants could not in one way or the other fulfilled the laid down conditions for the grant of such injunctive orders.
It is humbly observed that, orders of injunctions greatly assist in the course of justice, thereby providing interim and interlocutory reliefs as well as preserving the res and maintaining the status quo ante, pending the hearing and determination of the substantive application on its merit.
Respondents are sometimes prejudiced by the grant of the injunctive orders, because it is unnecessarily delayed; It is however evident that in practice; Counsel, courts and Litigants in some cases, misuse or abuse these equitable remedies

Recommendations

Based on the above observations, the writer makes the following recommendations:

Since one of the main aim of ex-parte motion is to serve as an emergency legal procedure for the preservation of the subject matter of the suit or protecting the life, property or interest of the applicant from being lost or destroyed and the matter is not finally determined by the grant of the ex-parte application for interim injunction, rather only used sparingly, the issue still remains to be determined through the hearing of the motion on notice. This legal principle of ex-parte application should be allowed to continue in the interest of justice, despite the apparent legal contradiction against the Constitutional legal principle of hearing the other side so as to enjoy a certain level of preservative legal. It is recommended that the legal provisions for the ex-parte application for interim injunction be declared null and void being inconsistent with the clear provision of the constitution to the extent of the inconsistency and the legal process of the ex-parte application for interim injunction shall cease to exist so as to have full observance and enforcement of the constitutionally guaranteed legal principles of “hear the other side” in upholding the principle of fair hearing.
It is recommended that the two legal principles be allowed to subsist as each one is important for the determination of the case. Further, if interlocutory injunction is meant to preserve the subject matter of the suit and a party feels aggrieved by the grant of the application, there are two remedies that are available to the party; one is the applicant can file motion for the order to set aside. The other option is for the aggrieved party to appeal to the court of Appeal against the ruling in which the orders were
The court should always refuse the prayer that the order should be granted pending the hearing and determination of the substantive application as always included in the ex-parte application for an interim order of
Expeditions hearing and determination of all matters on injunction on merit should be encouraged by the Bar and Bench for speedy dispensation of justice in Nigeria and interlocutory injunctions should be sparingly granted and only upon thorough scrutiny of the affidavit in support of the
It is also recommended that, all elections should be conducted very early and all election matters should be given expeditions hearing and determination
However, where a litigant is found in gross disobedience to an order of the court, such a litigant should be forced to comply with the order

In this regards, it is now apparent that injunctions as equitable remedies were introduced to lessen the adversity of the Common Law. Since the inception of these principles in Nigeria, remarkable achievements were said to have been recorded in the area of justice dispensation in Nigeria. Despite the fact that, the grant of these equitable remedies are within the powers and discretion of the courts, the courts are notwithstanding enjoined to exercise such powers and discretion judiciously. Furthermore, it is plain that these equitable remedies of injunction play significant roles in the dispensation of justice in Nigeria.

References

Afolayan, A. F. and Okirie, P. C. (2007) Modern Civil Procedure Law, The Sage Nigeria Limited,
Babalola, A. (2000) Injunctions and Enforcement of Orders, (2^nd Edition),
A. U., University Press, Ife.
Basil, (2014) Court–Room Rapid Reference Handbook, Overseas Publications Limited, Benin City, Vol. 1.
Dobbyn, J. F. (1974) Injunction in a Nutshell, St, Pauls Minn. West Publishing
Efevweren D. I. (2013) Principles of Civil Procedure in Nigeria,(Revised Edition), Snaap Press Limited,
Hanbury, H. G. and Maudsley, Rh. Modern Equity International Students Edition, Steven/Sweet and
Koddinye, G., An Introduction to Equity in Nigeria. Spectrums Books Limited, Ibadan (2008).

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