ABSTRACT
Injunction serves as an order of equitable nature restraining the person to whom it is directed from performing a specified act or in certain exceptional circumstances cases requiring him to perform a specified act. Injunctions are judicial remedy by which a person is ordered to refrain from doing or to do a particular act or thing. In the former case it is called a restrictive and prohibitory injunction and in the latter a mandatory or positive injunction. This work examines the basis and nature of injunction, the first is the exercise of the granting of injunction to prevent an impending or a threatened breach of a legal or equitable right. The second basis for the granting of injunction is the prevention of the defendants from infringing or breaching the legal or equitable right of the plaintiff but rather a need to prevent the defendant from acting in a manner which is unconscionable and contrary to equitable principles. The court grants injunction on the second basis on the ground that it is just and convenient to do so. Also, the work further examines the various types of injunction applicable in the Nigerian judicial system. The work further examines the need for the Nigerian court to grant injunctions in matters of extreme urgency and the power of the court in granting injunction. It also considers the procedure by which the Nigerian courts grant the application of any type of injunction as well as the grounds that are sine qua non before the application of injunction is granted by the Nigerian courts. Finally, the work is concluded with a succinct summary and recommendation.
CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION
The process of calling the court into action in most countries takes time and this is also the same in Nigeria owing to the peculiar state of affairs in Nigeria. Calling the court into action to determine the respective rights of the parties consumes considerable time with possible harm to the subject matter of the suit. In law, this subject matter is commonly referred to as the “res”. The res in deserving circumstances would need to be preserved from waste, destruction or dissipation by any of the parties.
An exposition of the meaning of RES and the significance of its preservation can be found in Muhammadu Buhari and 2 others v. Chief Olusegun Obasanjo and 267 others[1]. In that case per BELGORE, J.S.C (as he then was) held inter alia on the meaning of RES;
‘In general parlance “res” means “thing” in reference to a thing, known or unknown. It also means affair,
matter or circumstanc in legal contest, ”res” generally refers to subject of the right Complained of by the applicant’.
In legal history, the remedy of injunction was one of the foundations of the jurisdiction in equity exercised by the Court of Chancery and the Court of Ex-chequer in England .The equitable jurisdiction of the Court of Ex-chequer in this regard was abolished by the Court of Chancery Act 1841 and by so doing, placing injunctions within the exclusive province of chancery’s equitable jurisdictions. This was the situation for almost 13 years.
By 1854, however, the Common Law procedure Act of that year, gave to Common Law Courts a power to grant injunctions in certain cases. Eventually, when the fusion of law and equity was effected by the Judicature Act 1873.The jurisdiction to grant injunction in all cases in which court of equity or common law could formally grant that relief was made available to every branch of the High Court Justice under the Act
1.1. 0: BACKGROUND TO THE STUDY.
The need for litigants to get justice before their rights are been infringed upon by some people prompted me to write on injunction in order to enlighten the people on how they can protect their selves, families and properties before they lose them all. The word injunction has its roots in the latin word “injungere”, which means to”join, attach, or impose”. A subsequent inflexion of injungere is the old French word enjoinder, which entered the corpus of English words in the middle ages. Enjoinder later became injunct and soon injunction. Injunction was to feature frequently in court forms in the 19th century. The legal usage of the word has since remained consistent and largely exclusive.
In general sense today, 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 “inpersonam” 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 the court regards as essential to justice or restraining an act which it esteems contrary to equity and good conscience. It is a remedial writ which courts issues for the purpose of enforcing their equitable jurisdiction. KARIBI WHYTE, J.S.C in Babatunde Adenuga and 5 others v. K.Odunewu and others,[2]
defined an injunction thus:
‘………An equitable order restraining the person to whom it
is directed from
doing the things specified in order or requiring in exceptional situations the performance of a specified act. A claim for an injunction is a claim in equity’.
Injunction can also be likened to a preservative order. An injunctive order is peremptory in the sense that it conveys a commanding or mandatory instruction by way of order from the court to the party not to perform the particular act or to do anything that will be prejudicial to the res or subject matter of the litigation. It is a prohibiting or forbidden order made against a party who can disobey the order on pain of punishment.
1.2.0: OBJECTIVES OF THE STUDY
The objective of this study is to shed more light on the different types of injunction that are applicable in the Nigerian judicial system and to examine their excessiveness. Therefore the main objective of this study is to critically examine the various types of injunction one after the other and to discuss their significance to the Nigeria judicial system. The objectives derivable from this research are enormous;
- to explain whether or not the injunctions in our judicial system are not excessive
- To explain the significance and importance of the different types of injunction available under the law
- to explain the enforcement procedure of the rights of the parties as prescribed under the remedy of injunction
1.3.0: FOCUS OF THE STUDY
The focus of this study is to examine whether the extent at which injunctions are granted by our courts and to further examine and x-ray whether or not the exercise of or the power by the court is accurate or excessive. To say that the number of injunctions in Nigeria judicial system is excessive is tantamount to saying the number of injunction is too much and should be reduced. This work examines the importance of all the injunctions applicable in the Nigeria judicial system and their significance as to their excessiveness and/or otherwise
1.4.0: SCOPE OF THE STUDY
The study will give us the opportunity of addressing the issue of excessiveness of injunction in our judicial system. Whether the number of injunctions available is excessive or is adequate considering the importance of each of the injunction.i
1.5.0: METHODOLOGY
The main objective of this study is to show that the number of injunctions available in Nigeria judicial system is not excessive.
The study is based on practical and historical approach, in this regard data will be collected via primary and secondary sources. Other sources of information are textbooks, journals, newspapers, bulletins and law reports. The primary sources of information are thus, materials authored by various scholars and researchers on the topic. This is one area in which the use of internet has been immensely beneficial. Textbooks and journals have also been heavily relied upon in the areas of the study where they suffice. This research work is expository and analytical in nature, attempting to shed more on grey and unpopular areas of injunction as far as litigation is concerned.
1.6.0: LITERATURE REVIEW
The nature of this topic is both academic and practical considering the vital role an injunctive relief is expected to play in a case where monetary terms has no value. For instance, when all a plaintiff wants is to stop a threatened wrong from occurring or reoccurring, giving him money will not solve the problem, he is only bent on avoiding the irreparable harm.
However, most litigants don’t know how to go about this relief, owing to the fact that fewer books have been written on this and the fear that it may or may not be granted because of the discretionary powers of the court as far as the relief is concerned. This is the reason many try to ignore it, a rather unfortunate fact.
Afe[3] wrote extensively on injunctions, his book was very useful to this work both the first and the second edition. He dealt with the nature of injunction, its doctrinal basis and its significance.
Nwadialo[4]in his book showed the requirements for the grants of injunctions, the power of the courts to grant interlocutory injunctions and order for early trials and interlocutory and interim injunctions
Encouraging however is the fact that information on the subject exist in academic essays, degree dissertations, articles published by legal luminaries, law reports and most importantly the internet. These have been of great benefit; many of them have only skimmed the surface of the legal issues involved. Many of these articles published in the internet are of limited accessibility. Several papers by the same author have been referred to one has therefore to wed on the vibrant intellectual work these borders.
The authorities herein contained are majorly Nigerian authorities, case law and law responses garnished with a few foreign ones, after all, in its entirety this work is examining injunction as a relief under the Nigeria legal system.
It is important to note that many more materials yet unmentioned have been immensely contributory. Oral discussions with legal practitioners which cannot all be mentioned have also been incorporated to forge this long essay.
1.7.0: DEFINITION OF TERMS
Injunction is an order issued by a court ordering someone to do something or prohibiting some act after a court hearing. The procedure is for someone who has been or is in danger of being harmed, or needs some help [relief].
An injunction is also defined as a prohibitory writ, specially prayed for by a bill, in which the plaintiff’s title is set forth, restraining a person from committing or doing an act [other than criminal act] which appears to be against equity and good conscience.[5]
It is a prohibitory, equitable remedy, issued or granted by a court at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his servants or agents to do some act which he is threatening or attempting to commit.
1.8.0: CONCLUSION
This chapter has highlighted the main reason for choosing this topic, its objective, focus, scope, and background and also defined the terms in this project.
Also, this chapter has explained the method of research employed in this work, also this chapter has given basis and meaning for choosing the topic of this short essay by explaining in details the reason i.e the background, scope which it hopes to accomplish by choosing the topic.
[1] (2003)17 NWLR(PT. 850)587 S.C
[2] (2001)2 NWLR (pt. 690)184 @ 195
[3] Afe, B. Injunctions and Enforcement Orders (2nd ed Intec Printers, Ibadan, 2007) p.87
[4] Nwadialo F. Civil Procedure in Nigeria (2nd Edition University of Lagos Press, Lagos 2000) p.
[5] Afe. B (see note 3 above) p.56
