Factors to consider before granting Interlocutory Injunction in Nigeria

Factors to consider before granting Interlocutory Injunction in Nigeria

The Factors to consider before granting Interlocutory Injunction in Nigeria by the court are enormous. The remedy by interlocutory injunction as its name implies is temporary. Being an equitable remedy it is also discretionary. Hence the central objective of the Court granting an interlocutory injunction is to exercise its discretion to keep the parties in status quo pending the determination of the substantive action

(a)         LEGAL RIGHT

The reason for the grant of injunction is to protect the existing legal right of a person from unlawful invasion by another. It follows therefore that an applicant for the grant of an interlocutory injunction must show that he has a legal right which is threatened and ought to be protected.

Once the acts complained of will lead to an infringement of the applicant’s rights, it is proper for the court to intervene by the grant of an injunction. Therefore, where an applicant has no legal right or fails to show that he has one, the court has no power to grant an injunction. ATTORNEY GENERAL, ABIA STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2005) 12 NWLR (PT. 940) 452 at 514 PARA. A; DANTATA VS. C. S. LTD (2005) All FWLR (PT. 280) 1474 at 1491 PARA. D.

It is also an essential requirement that the evidence must disclose that applicant has a legal right to bring the substantive action on which the application is based

(b)         SUBSTANTIAL ISSUE AT TRIAL

An applicant must show the court that there is a serious or substantial issue for trial. An applicant for an order of interlocutory injunction does not have to make out a case as he would do on the merits, it being sufficient for him to establish that there is a substantial issue to be tried at the hearing. It is enough for the court to be see that the claim is not frivolous or vexatious.

At the stage of hearing an interlocutory application the court must not be involved in the resolution of conflicts between the affidavit and counter affidavit as to facts on which the claims of either party ultimately depend. See OPOBIYI VS. MUNIRU (2005) 15 NWLR (PT.948) 320 at 332-333.

An applicant for an interlocutory injunction must satisfy the Court, if he is to succeed, that there is a serious question to be tried in addition to his satisfying the Court that he has a right which ought to be protected. Adeleke V Lawal (2014) ALL FWLR (Pt.710) p.1226; MARDANNI (NIG) LTD v. GALADIMA & ORS (2019) LPELR-48244(CA)

(c)         BALANCE OF CONVENIENCE

What constitutes balance of convenience in one situation may not be so in another. In other words, the determination by a Court of where the balance of convenience rests in a case is a question of fact, not law.

This exercise of discretion implies weighing from the evidence before the Court, the degree of hardship or inconvenience which each party is likely to suffer according to whether the order is granted or refused. MABON LTD & ORS v. ACCESS BANK (2021) LPELR-53261(CA)

A court must decide where the balance of convenience tilts in considering whether or not to grant an application for interlocutory injunction. In this regard, the court must ask itself the questions –who will suffer more inconvenience if they grant the application  and who will suffer more inconvenience if they refuse the application.

To succeed, what the Applicant has to show in his affidavit in support of his application is that the balance of convenience is in his favour: that is, he would suffer more damages than the Respondent if they refuse his application. MERENI & ORS v. ONYECHERE & ORS (2015) LPELR-25623(CA)

The consideration of the issue of balance of convenience in an application for interlocutory injunction boils down to the question who will lose more between the plaintiff/applicant and defendant/respondent if the status quo ante (i.e. the position of the parties before the conflict or filing of action) is restored and maintained till the final determination of the action?. If the balance of convenience is in favour of the applicant it means that more justice will result from granting the application than in refusing it.

The burden is always on the applicant for injunction to establish by evidence that the balance of convenience tilts in his favour.

(d)         IRREPARABLE DAMAGE OR INJURY

The applicant for an order of interlocutory injunction must satisfy the court that he will suffer irreparable damage or injury if the Court fails to curtail the acts of the defendant by such an order.

By irreparable injury is meant an injury which is substantial and cannot be adequately remedied or atoned for by damages or cost. BELLO VS. ATTORNEY GENERAL OF LAGOS STATE (2007) 2 NWLR (PT. 1017) 155 at 138, PARAS D-E.

In order to succeed therefore, an applicant must show the Court the award of monetary damages would not be adequate compensation from the injury which he would suffer from the violation of his right, if they refuse the application and he eventually succeeds in the main action.

Where damages recoverable at law would be adequate remedy for the applicant for injunction and the defendant would be in a financial position to pay such damages, then there is no need to grant interlocutory injunction.

Where on the other hand damages would be adequate remedy for the defendant and the applicant would be in a financial position to pay there would be no reason to refuse an application for interlocutory injunction. The Courts are not to grant injunction where the respondent will face greater hardship  than the good to the applicant. ADELEKE & ORS v. LAWAL & ORS (2013) LPELR-20090(SC).

(e)         CONDUCT OF PARTIES

In order to succeed in his application for an interlocutory order of injunction, an applicant must show that his conduct is not reprehensible i.e. he is not guilty of delay. This is because an order of interlocutory injunction is an equitable relief which requires the court to consider the conduct of the parties both before and at the time of submission of application. See FADINA VS. VEEPEE INDUSTRIES LTD (2000) 5 WRN 131 at 135-136.

An applicant for the equitable remedy of Interlocutory Injunction must fail if he is guilty of delay. This is because delay defeats equity. To succeed in his application, the applicant must act timeously so as not to over reach his opponent. See PETER VS OKOYE (2002) 3 NWLR (PT. 755) 529 at 552.

Similarly where the conduct of the applicant is tainted with illegality or delay, his application will be refused by the court.

(f)          UNDERTAKING AS TO DAMAGES

By this undertaking the plaintiff binds himself to be liable for any damage which the defendant may suffer as a result of the order of injunction in the event that the plaintiff loses the action. See LEASING CO. (NIG) LTD VS. TIGER INDUSTRIES LTD (2007) 14 NWLR (PT.1054) 346.OJEMAIE INVESTMENT LTD v. BI-COURTNEY LTD & ANOR (2010) LPELR-20029(CA).

 

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