A Defendant Can Be Granted An Injunction

CIRCUMSTANCES UNDER WHICH A DEFENDANT CAN BE GRANTED AN
INJUNCTION AGAINST THE PLAINTIFF IN A CASE

WRITTEN BY A.O. IMIETEABSTRACT
Injunction serves as an order of equitable nature restraining the person towhom it is directed from
performing a specified act or in certainexceptional circumstances cases requiring him to perform a
specifiedact
1
. Injunctions are judicial remedy by which a person is ordered torefrain from doing or to do a particular
act or thing. In the former case itis called a restrictive and prohibitory injunction and in the latter
amandatory or positive injunction. This work examines the basis andcircumstances under which a
defendant can be granted injunctiongenerally, whether an interlocutory or interim injunction, although
mostof the applications for grant of injunction are made by the plaintiff.Before looking at those
circumstances under which the defendant can begranted an injunction in a case against the plaintiff, it will
be necessary toconsider the legal meaning of an injunction, types, the conditions to bemet by any
of the party before an injunction can be granted by theNigerian courts, the reasons for granting such an
injunction and finally,the work is concluded with a succinct summary and recommendation.
INTRODUCTION
In legal history, the remedy of injunction was one of the foundations of the jurisdiction inequity 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
thatyear, gave to Common Law Courts a power to grant injunctions in certain cases. Eventually, when
thefusion of law and equity was effected by the Judicature Act 1873.The jurisdiction to grant injunction
inall cases in which court of equity or common law could formally grant that relief. Injunction was
introduced into Nigeria legal system through local legislation. Ordinance introduced inter alia the
doctrines of equity of which injunction are a part. The Judicature Acts provide that an injunction by
interlocutory order may be granted in all cases in which it appears to the court to be just or convenient
that such an order be made and that any such order should be made unconditionally or upon such terms
1

Halsbury’s Law of England(3
rd
ed) Vol. 21 p 343; PH Pettit, Equity and the law of Trust(9
th
)p540
2
Jegede, Principles of Equity (1981)pg 1.
3
Supreme Court of Judicature(Consolidated Act 1925) (1873-1925)

and conditions as the court shall think just. Similar statutory provisions are contained in the
Nigerianlegislation specifically Order 20 rule 9 High Court (Civil Procedure) Rules
4

THE MEANING OF AN INJUNCTION
Injunction is defin
e by the black‟s law dictionary
5
with pronunciation as an ordercommanding or preventing an action. In a general sense today, every order
of a court whichcommands or forbids is an injunction, but in it accepted legal sense, an injunction is a
judicial process or mandate operating inparsonam 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 beendefined as a
writ framed according to the courts regards as essential to justice or restraining anact which it esteems
contrary to equity and good conscience, it is a remedial writ which courtsissue for the purpose of
enforcing their equitable jurisdiction; and a writ issuing by the order andunder the seal of court sitting in
Equity
6
. KARIBI WHYTE, J.S.C in Babatunde
ADENUGA &5 OTHERS. V. K ODUMEWU & OTHERS10
, defined injunction thus
“...
An equitable order restraining the person to whom it is directed from doingthe 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‟.
While quoting this definition by KARIBI-WHYTE J.S.C, MUSDAPHER J.C.A (as hethen was) in
ANNE KADIYA & 2 OTHERS V. JIBO KADIYA & 2 OTHERS
, stressed thatan injunction is generally granted to protect a legal right which is in existence with the
object ofkeeping matters in status quo until the question at issue between the parties
is determined. Thequestion as to what principles govern a court in the grant of an injunction was
answered byAdefarasin J. in
MARTINS PROPERTY LTD V ALBERT COURY
, as follows:
“the principle under whi
ch the court acts with regards to injunctions is that thecourt would grant an injunction for protection of
right or prevention of an injuryaccording to legal principles. The court, prima facie, would however, not
grant aninjunction to restrain an actionable wrong for which damages are the proper
4
High Court Law, Cap. 44 Laws of Ogun State (1978)
5
Bryan .A.Garner 9
th
ed (2009) West Thomas Business Reuters.
6
Howard C. Joyce, A Treatise on the Law Re
lating to Injunction (quoted in Black’s Law Dictionary 9
th
ed)pg.855

remedy. The court interferes by way of injunction to prevent any injury in respectof which there is a legal
remedy, if the injury is irreparable or if is continuous.Moreover, the court would grant an injunction even
where no damage has been
caused. There must however, be a violation of a legal right in a substantial way”.
An irreparable injury in the sense that an injury that cannot be adequately measured,compensated by
money and is therefore often considered remedies by injunction or non- pecuniary injury.
The supreme court in
JOHN HOLT NIGERIA LTD V HOLTS AFRICANWORKERS UNION OF NIGERIA AND CAMEROUN
7
emphasized the need to keep the
principle when the court said: “the principles upon which the court acts in granting interlocutory
injunctions, to our mind must be strictly observed and, of course, it is impossible to lay down anygeneral
rule by which the discretion of the court ought in all cases, to be regulated but it must be
borne in the mind that interlocutory injunction are not granted as of course.”
While the grant of injunction is discretionary, the court will not grant it, if it not asked for
8
orgrant one which is wider than what is sought by the plaintiff.
9
But it can be granted if it isincidentally necessary to protect legal right.
10
In
ADAM V DUKE
11
the plaintiff had sought adeclaration that he and members of the Etum Effion House were under no
obligation to serve thedefendant in his capacity as Etubom of the Duke house and claim an injunction to
restrain the
defendant from attempting to enforce such an alleged obligation or liability. Webber, J said “the
claim for an injunction must fail. There is nothing to restrain nor does any reason exist for aninjunction.
The court will not restrain the defendant from making assertions. There must beviolation, a real
substantial violation of some right before court grants an injunctio
n”. Aninjunction will not be granted to restrain a wife from bearing her husband‟s name even after
divorce.
12
Furthermore, an injunction will not be granted where the injury is trial.
13
In
SAVAGEV AKINRINADE
14
, an injunction was refused on the ground that it would cause greater
7
(1963)1 ALL NLR 379 at p.383;
8
Ogbe v Esi (1943)9 WACA 76, Ogboni v Ojah (1996)2 SCNJ 140; Victor Ndoma-Egba v Nname
Chukwukeluo & ors(2004)2SC 117
9
Kotoye v C.B.N (1989)1 NWLR 419
10
Williams v Snowdown (1880)AN 124
11
(1927)8 NLR 88
12
PH Pettit, Equity and the law of Trust(9th)p540
13
Behrens V Richards (1905)2 Ch. 614
14
(1964)LLR 238

hardship. In that case, the plaintiff‟s right had been obstructed by the erection of a multi storey
building by the defendants and had sought an injunction that the offending building be removed.Omolu J;
in refusing to grant the injunction, said he appreciated the importance of the plaintiff but he must
also consider the value of a new storey building containing fourteen rooms and thehardship which an
order for removal would cause, not only to the defendants but to other tenantsnow living there. This
demonstrates that equitable remedies may not be granted where thirdinterests are adversely affected.
15
The operation of injunction illustrates the equitable maxim,equity acts in persnam. Equity will not allow
an act, which is in inconsumable, morallyreprehensible and totally contrary to its notion of equity and
justice to be done just because theact which is done is outside its jurisdiction provided the person doing
the act is within its jurisdiction and can be served with court process. Equity proceeds on the basis that the
order ofinjunction is directed against the person to be restrained and it is an order impersonam.Injunction
may be divided into perpetual and interlocutory. A perpetual injunction is onlygranted after a judicial
decision when the plaintiff has established his right in law and the factthat the defendant infringed that
right or is about to do so. The effect of the injunction may notnecessarily last forever; it depends on the
nature of the right, the protection of which is sought.An interlocutory injunction on the other hand, is
granted before the final determination of theissues between the plaintiff and the defendant, where the
plaintiff reasonably fears that theirreparable damage may be done to him before the final determination of
the issues, unless thedefendant is restrained of the act complained of. The essence of interlocutory
injunction is tomaintain the status quo of the parties pending the final determination of the issues. Ex-
parteinjunction can be granted where the plaintiff requires urgent and immediate temporary relief
andcannot wait till the next motion day. He can apply for an injunction which will last, which validuntil
the next motion day, by which time notice could have be served on the defendant. He (the
defendant) will then have a chance of opposing the plaintiff‟s application for interlocutory
injunction. The phrase ex parte means that the court has not had the opportunity of hearing theother side.
15
Penn v Lord Baltimore(1750)1 vessen 444

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CIRCUMSTANCES UNDER WHICH A DEFENDANT CAN BE GRANTED AN

INJUNCTION AGAINST THE PLAINTIFF IN A CASE

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