adminCourtesy: Moruff O. Balogun, Esq.
1. On the difference between interim injunction and interlocutory injunction.
Beese V. Woodhouse [1970]1 ALL E.R. 769.
An interlocutory injunction is one pending the determination of the suit while an interim injunction is one granted to last a few days or until further order. In the case of an interim injunction, it is usually named to a definite date pending the hearing of a motion on notice between the parties.
2. Ex-parte order of injunction.
Kotoye V. Central Bank of Nigeria & Ors [1989]1 N.W.L.R [PT.98] 419 at 447.
The position in law is that ex-parte interim injunction should only be used to keep the parties in status quo until a named date or pending the time other party could be put on notice and heard on the matter, or where it is necessary to preserve the rest which is in danger or imminent danger or being destroyed.
3. Making the life of ex-parte injunction short.
Okechukwu V. Okechukwu [1989]3 NWLR [PT.1O8]234 at 247
It has again become necessary to issue a reminder that even where everything points favorably to the granting of an ex-parte injunction, there is always the need to make its life short, and indeed for an undertaking by the person who obtains it.
There can be no doubt that the law frowns on an ex-parte injunction being allowed to continue to hang over the head of a defendant for a long time before the merit of the injunction is determined in an interlocutory proceeding upon a motion on notice. This is because ex-parte injunction is granted by way of a very extraordinary jurisdiction behind the back of the defendant. It will not be right to keep him in that situation for long without being heard or without deciding the merit of the injunction.
4. Options open to a party against whom an ex-parte order is made.
TSA Ind. Ltd V. Abacus Merchant Bank Ltd. [1996] 2 N.W.L.R PT. [430] 305 at 317.
A party against whom an ex-parte order is made can either seek to have it discharged [if the rules of court so provide] or wait to have the motion on notice on the same matter contested which event may lead to court to end the life of the ex-parte order or to continue it pending the determination of the substantive suit.
Hence an ex-parte order is made to last until a certain day, not more than a few days usually the next motion day.
5. Can courts injunction bind a party not before it.
Marengo V. Daily Sketch & Sunday Graphics Limited [1948]1 ALL E.R 406HL
Where the House of Lords held that it was not competent of the court to hold a man bound by an injunction, who is not a party in the case for the purpose of the cause.
6. Grant of Injunction.
Nig. Cement Co. Ltd V. N.R.C & Anor [1992] N.W.L.R [PT. 220] 747 at 759.
An injunction will generally be granted only after a writ of summons has been issued. If, however, the circumstances of the case are very urgent or where, owing to the offices of the court being closed the issue of the writ is delayed, an injunction may be granted before the writ has been issued, upon the plaintiff undertaking to issue the writ at once.
7. When a defendant can apply for an injunction.
Nig. Cement Co. Ltd V. N.R.C & Amor [1992] 1 N.W.L.R [PT. 220] 747 at 760
If the application for an injunction is made by the defendant, it must be made after appearance and on notice to the plaintiff. A defendant may before judgment apply for an injunction and he may do so even if the plaintiff has already served him with notice of application for a like purpose.
8. Can court grant injunction to restrain an act already executed.
Babatunde & Ors V. Olatunji & Anor [1994]4 NWLR [PT.339] 488 AT 500
Completed or performed act cannot be restrained.
Per Opene J.C.A [as be then was] stated:
“If Chief Ibuoye has been presented to the 1st appellant and he installed him as the Odofin of Arandin, obviously, there is nothing to be restrained.
It is trite law that an interlocutory injunction is not a remedy for restraining an act which has already been executed.”
9. Can injunction be granted in absence of main relief?
C.B.N & Ors V. Kotoye [1994]3 NWLR [PT. 330]66 AT 78.
The claim for injunction is subsidiary to or dependent upon the main claim. If there is no claim upon which it is based, it must fail as it cannot stand by itself.
10. Are pleadings necessary for consideration of interim or interlocutory injunction?
Mobil Oil Ltd. V. Agadiagbo [1988]2 NWLR [PT. 77] 383 at 396.
Uwais J.S.C. [as he then was] stated that it did not matter that pleadings had not been delivered when the application for interlocutory injunction came before the learned Judge, because pleadings were not necessary before application for interim or interlocutory injunction can be brought or be granted.
11. Condition precedent to the grant of interim or interlocutory injunction.
Ude & Ors V. Bassey & Anor [1991] 7 NWLR [PT. 206] 771 at 779-780.
The applicant must establish that there is need for interim injunction to keep matters in status quo; he must show that there is real question to be tried in the substantive suit; he must show that the injury he will suffer in the meantime if the interim injunction is not granted cannot be compensated by an award of damages. If there is doubt as to the part damages can play, then he must show that the balance of convenience is in his favour of granting the interim injunction. He must however, give an undertaking in damages in an appropriate case.
12. Court making order of injunction suo motu.
Obeya Memorial Hospital V. Attorney General of The Federation [1987] 3 NWLR [PT.60] 325 at 337.
The first issue in this appeal is about the court having made the interim injunction suo motu and without hearing the parties. This was a grave error. An injunction of the type granted by the trial Judge can only be made upon application which will be considered on well established principles.
13. Discharge of injunction.
Odutola & Anor V. Lawal & Ors [2002] 1 NWLR [PT. 749] 633 at 671.
Generally speaking, circumstances in which ex-parte interim injunction may be discharged are as follows:
1. Where the application failed to fully disclose all material facts even though the omission was due to error of judgment.
2. Where the order was granted on a suppression or misrepresentation of fact.
3. That it was irregularly granted.
4. That there had been delay in complying with an undertaking to amend the writ by adding a party a plaintiff.
5. That default has been made in giving security for costs.
6. That the plaintiff had not used his administrative powers that might resolve the difference.
7. That there had been delay in complying with undertakings as to damages.
8. That the plaintiff deliberately delays the hearing of the motion on notice.
9. Under some court Rules, if a motion to discharge an ex-parte order is not taken within 14 days of its filing the ex-parte order shall automatically lapse.
10. Court can suo motu call upon a party at whose instance the ex-parte order was made to show cause why the order should not be discharged if the court is satisfied that it was misled to make the ex-parte order in the belief of the applicants good faith.
14. Duration of interim injunction.
Kotoye V. C.B.N. [1989] 1 NWLR [PT. 98] 419.
The Supreme Court in the above case defined an interim as one granted to last until a named or definite date or until further order or pending the hearing of a motion on notice between parties. So, the characteristic of such an order is that it must last until a definite date or until the hearing of a motion on notice between the parties.
15. Pronouncement not to be made on substantive case.
Globe Fishing Industries Ltd. V. Chief Folarin Coker [1990]7 NWLR PT. 162 PAGE 265 TA 281.
It is not necessary for the court at this stage to find a case which will entitle the applicant to relief at all events. The court is not to go into the merits or come to a decision which ought to be made in the substantive suit.
16. Injunction is not dispose of the matter.
Sankey George Ita V. Essien Oku Nyong [1994]1 NWLR PT. 318 PG. 56 at 66-67.
An injunction must not finally dispose of the matter but to impose only such restraint as may suffice to stop the complaint. In a case on dispute over land, a Judge ought not to make an order that the party claimed against should vacate the land, rather, that he should cease any further act such as erecting structure or digging on the land. A court cannot in an interlocutory application decide an issue in the substantive case or appeal.
17. Binding effect of prayer sought in an application.
Gbadamosi & Ors V. Alete & Anor [1993]2 NWLR [PT. 273] 113 AT 122.
It is trite that a court will not normally grant a relief to a party which he has not claimed. The same principle applies to a plaintiff who seeks an order of interlocutory injunction restraining the defendant[s] etc. from doing certain things, he will be limited to the prayers sought in the application.
The order made by the learned trial Judge in his rather lengthy ruling which gave rise to the present appeal was not a relief or prayer sought by the plaintiffs/appellants in their application for an interlocutory injunction.
18. On when court can vary or set aside ex-parte.
F.R.N V. Ozekhome [2021]9 NWLR PT. 1782 AT 452.
When a court makes an ex-parte order without jurisdiction, the order can be varied or discharged depending on the circumstances of the case, the grounds under which the court can do so are as follows:
1. If the plaintiff has not used his administrative powers that might have resolved the difficulty.
2. If default has been made in giving security for costs.
3. If the affidavit has not been filed when the injunction was moved.
4. If it was granted on a suppression or misrepresentation of materials facts.
5. If it was irregularly granted.
6. If the plaintiff failed to attend to be cross-examined.
7. If there had been delay in complying with an undertaking to amend the writ by adding party as plaintiff.
8. If there is non-disclosure of material facts.
19. Interlocutory injunction and breach of fair hearing.
Adene V. Dantumbu [1988]4 NWLR [PT. 88] 309.
It is an elementary principle of the common law that a party who shall be affected by a court order must be heard. He cannot be shut out from the stream of litigation which will ultimately affect his legal rights. He has a legal right to protect his legal right and therefore has the right to be heard. This will enable him either to present a defense or to throw in the towel if he has no defense to make.
Even if he has no defence. The law requires that he should be informed of the matter against him. Once the court comes to a conclusion that the party was entitled to heard before a decision was reached, but was not given the opportunity of a hearing, the order or judgment thus entered is to be set aside.
20. Can interlocutory injunction be granted to a defendant who has not counter claimed.
Ubani & Ors V. Ogogo [1998]3 NWLR [PT. 540] 120 at 127.
Per Muhammad J.C.A [as he then was] stated as follows:
“I have very carefully considered the reasoning in the above cases and as I have earlier stated the basis for any application for interlocutory injunction is the protection of a right. For a party to succeed he must show that he has a right to protect. I am therefore of the opinion that if at all a defendant can show that he has a right to protect, without filing a counter-claim, an interlocutory injunction may be granted in his favour.“
Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]
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