UNDERSTANDING THE REMEDY OF INJUNCTION IN NIGERIAN LEGAL SYSTEM
Injunction is an equitable remedy and is therefore, discretionary. It is a particularly useful remedy in contract to restrain a breach, in tort to prevent the continuation of a nuisance, in family law to control domestic violence, and in administrative law to prevent public authorities from acting unlawfully. Breach of an injunction is a contempt of court1.
The preservation of the subject matter ‘res’ in dispute or the maintenance of the ‘status quo’ is achieved through the judicial process of the equitable order of injunction.
According to Blacks Law Dictionary2 Injunction is “a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury”.
In Adenuga v. Odunewu3, the n Supreme Court Per Karibi –Whyte JSC (as then was) defined injunction thus:
“...an equitable order restraining the person to whom it is directed from doing the things specified in the order or requiring in exceptional situations the performance of a specified act”.
2.1 TYPES OF INJUNCTION
Injunction can be classified based on the how long the order is to last i.e. the duration of the order. In this wise we have (i) interim injunction (ii) interlocutory injunction and (iii) perpetual injunction. Another basis for classification is the nature of act to be prohibited or to be done. In this category we have mandatory and prohibitory injunction.
3.1 INTERIM INJUNCTION
By an application for interim injunction, the applicant seeks a temporary order of court to restrain another person from doing an act or series of acts or to command a person to undo an act or series of acts towards the applicant or towards the subject matter of a suit pending the happening of an event-usually the hearing and determination of a motion on notice4. By its very nature, it has a very short lifespan5.
It is only being granted as a temporary measure pending the hearing of an application for interlocutory injunction. The purpose of interim injunction is to leave matters in status quo pending the hearing of the motion on notice.
An application for interim injunction is usually by ex-parte motion supported by an affidavit which must state facts, why the order should be granted without notice to the other party?6
There are two main circumstances which, as decided in Leedo v. Bank of the North7 in which an application ex-parte could be made. These are (i) when, from the nature of the application, the interest of the adverse party will not be affected and (ii) when time is the essence of the application. In any of these situations, a court may rightly exercise its discretion by granting a motion ex-parte8.
In Ogujiefor v. F.R.N9 it was stated that interim injunction is not granted as a matter of course because the power of the court to grant it is of a very extra-ordinary jurisdiction. Application for interim injunction may be properly made by a plaintiff in a case of extreme urgency. It should only be used when the case is one of real urgency requiring relief immediately as opposed to relief in a few days10.
The applicant is required to file an affidavit to show in his affidavit facts sufficient to show why delay in granting the order sought would entail irreparable damage or serious mischief to him. He must show that there is real urgency what is required is real urgency and not self induced urgency. In Adenuga v. Odunewu11 the court explained “real urgency” to mean urgency between the happening of the event which is sought to be restrained by injunction and the date the application could be heard if taken after due notice to the other side12. Order 8 rule 8 of Oyo State High Court Civil Procedure Rules 1988 provides:
“A motion ex-parte shall be supported by affidavit which in addition to the requirements of rule 3, shall state sufficient grounds why delay in granting the order sought would entail irreparable damage or serious mischief to the party moving”.
It is important to note that the application to succeed, the accompanying affidavit must show the applicant’s legal right which has been breached or the breach of which is being threatened. The application may not be favourably considered unless it is accompanied by a motion on notice asking for interlocutory injunction13.
Order 33 Rule 3 of the Oyo State High Court Civil Procedure Rules provides as follows:
3 “The Plaintiff may not make such an application before the issue of the process by which the action is to be begun, except where the case is one of urgency, and in that case the injunction applied for may be granted on terms providing for the issue of the process and such other terms, if any, as the court thinks fit”.
From the above, it is clear that, it is not a requirement that the applicant must have instituted an action before bringing the ex-parte interim injunction. Afe Babalola14 commenting on the above provision stated:
“The legal position that a writ need not have been issued before an application for ex-parte or interim injunction can be made is of considerable importance in cases in which pre-action notice must be issued before the commencement of action against the defendant. If for instance, a local government threatens to breach the rights of any person, for instance by demolishing a shop or house and yet the local government must be served with one month pre-action notice before action can be instituted, the Plaintiff may apply for ex-parte order of injunction upon the service of the pre-action notice and upon undertaking to institute action against the local government on the expiration of the notice”.
Another important issue is with regards to the time and venue of the hearing of the ex-parte application. Order 36 Rule (1) (j) of the Oyo State High Court Civil Procedure Rules provides:
“(1) The business which may be disposed of in chambers by a judge shall consist of the following matters, in addition to the matters which under any other rule or any written law may be disposed of in chambers”.
(j) such other matters of an interlocutory nature as the judge may think fit to dispose of in chambers”15
Also Order 50 Rule (2) of the
(Civil Procedure) Rules 2004 provides thus: High Court of Lagos State
“2. Unless the opposite party or his counsel objects, the judge may, on application, conduct any proceeding (except actual trial) in chambers and may also on application, adjourn any such proceeding from court to chambers or vice versa”.
It is manifest from the above provisions that in
ex-parte application for interim injunctions could be heard and granted in chambers; however it is regrettable that Nigerian courts seldom make use of Chambers for ex-parte applications. Afe Babalola16 in emphasising the need to hear some certain applications in chambers enthused: Nigeria
“The nature and purport of ex-parte injunction and the fact that secrecy is crucial most of the time, make it desirable to hear such application in chambers”.
, the courts only sit from Monday to Friday even though Saturday is a juridical day. It follows that an ex-parte injunction most likely will not be heard on Saturday, Sunday and public holidays. Also the courts sit from 9:00am. However in some jurisdictions especially in the more advanced western countries the situation is different. For example in Nigeria ex-parte orders are taken both during court hours and outside normal court hours. The Queen’s Bench Judge in Chambers each day is on call overnight. In short, the High Court provides emergency services similar to that of the medical profession with Emergency Doctor on duty for 24hours. The judge may conduct hearing in his private residence or indeed anywhere. In cases of extreme urgency, judges have granted an injunction by telephone… In Re No. 217, an ex-parte injunction was granted by a High Court judge at his residence on a Sunday to prevent the husband from taking their child to England ”18 Australia
3.2 WHAT IS THE POSITION OF THE RESPONDENT IN AN EX-PARTE APPLICATION FOR INTERIM INJUNCTION
There seems to be confusion as to whether a respondent in an ex-parte application can be granted audience in any event. Nwadialo19 discussing this issue said:
“A party moving an ex-parte motion in court argues his case on the facts deposed to in his affidavit. These facts are the only materials the court should use for considering the application; therefore the court ought to ignore any counter-affidavit filed by the other party… No other party to the suit or proceedings is entitled to be heard even if he is present in court20. In 7-Up Bottling Co v. Abiola and Sons Ltd21 the Court of Appeal described the filling of a counter-affidavit by one of the parties in opposition to an ex-parte motion brought by the other party coupled with the presence and pressure of that party’s counsel on the trial court to be heard as constituting an unwarranted intermeddlesomeness that bordered on abuse of process because the rule on ex-parte application makes it reasonably intelligible that parties to a suit who are present when such application is being made “can be seen and not heard”…On appeal, this statement by the Court of Appeal was affirmed by the Supreme Court22. It is only the party moving the motion that is heard”23.
However, Afe Babalola was of the view that in appropriate circumstance, the defendant as respondent may be granted audience at the hearing in order to assist the court24. According to the learned author, this is known as “an opposed ex-parte application”. It is not the same as inter-parties application because the defendant has not filed any affidavit in opposition. He went further to enthuse that:
“where the defendant has sufficient time before the hearing of the ex-parte application, he may file a counter affidavit or a motion on notice seeking leave of the court to be heard in opposition using the counter affidavit attached to his motion or alternatively asking for an order not to entertain the ex-parte application but that he should put the defendant on notice”.
The position seems to find support in the case of Fawehinmi v. Akilu25 where the Court of Appeal said:
“The Supreme Court would seem to have decided that on an ex-parte application, if the party to be put on notice applied to the court to be heard, notwithstanding rules of court to the contrary, the court, pursuant to section 33(1) of the constitution, should grant the request. The appeal therefore succeeds on that ground”.
In support of the position, the learned author relied on the same case of 7-Up Bottling Co Ltd v. Abiola26 where the Supreme Court held:
“In application ex-parte, only the applicant may be heard unless the court in its absolute discretion directs that the other party or any other parties to be affected thereby be put on notice, otherwise such other party or parties to be affected may only be seen but not be heard at the hearing of the application”.
3.3 LIFE SPAN OF EX-PARTE INJUNCTION
The order is generally made without hearing the other party, so it is reasonably expected to last but a very few days or as may be permitted by the Rules of Court. It is granted to last until a named date or in anticipation of a motion on notice which is to be heard on the merits27.
The Lagos High Court Rules specifically provides that an order of injunction made upon an ex-parte application shall abate after 7 days28. However the judge has the power to extend the period if he is satisfied that the motion on notice has been served and that the extension was necessary29. Such extension shall not exceed 7 days and the application for extension shall be made before the expiry date of the order.
A party affected by the order obtained ex-parte may apply to court to vary or discharge the order30. By order 7 Rule 11
, such application to set aside shall be made within 7 days of service of the order or within such a larger time as the court may allow31. The Lagos High Court Rules does not specify the time limit within which the application must be made. Abuja
It is important to point out that in an application for ex-parte injunction the court will not entertain contentious issues.
3.4 DISCHARGE OF EX-PARTE INJUNCTION
The party restrained may move the court on ex-parte application for the discharge of the order32. The courts can suo moto at the hearing of motion on notice discharge the ex-parte order where such order was improperly obtained33. The application to vary or discharge must be made within seven days of the service of the order on the defendant34. The defendant may however join in the motion a prayer for extension of time if the application is made after the expiration of seven days.
It should be noted that notwithstanding the rules of court to the effect that it is the party affected by an ex-parte order of injunction that can apply to have same discharged, the legal position remains that any person who is adversely affected by an order of interim injunction can apply to court to have it discharged35.
3.5 ABUSE OF EX-PARTE INJUNCTION
By the nature of ex-parte injunction which permits it to be heard behind the opponent makes it an easy tool for abuse. Afe Babalola catalogued series of abuse of which the ex-parte injunction have been subjected to. One of such cases is Abimbola Davies v. National Electoral Commission36 in which a court granted ex-parte order to restrain the conduct of presidential election in spite of enormous expenses on preparation and when the defendant was available in the same jurisdiction.
The abuse which ex-parte injunction has suffered in the hands of litigants lawyers and judges has received condemnation from some appellate courts. Uwaifo JCA in Okechukwu v. Okechukwu37 admonished some judges in the following words:
“It is most disturbing that the use of ex-parte injunction by some judges cannot be supported in any measure either on the applicable principles or on the facts. They do not seem to advert to the need for caution in the exercise of that extraordinary jurisdiction. They appear to give impression that the discretion is so personal that it does not matter if others see it as a means of inflicting undeserved punishment and hardship on another party or other persons. It has again become necessary to issue a reminder that even where everything points favourably to the granting of an ex-parte injunction, there is always this need to make its life very short, and indeed for an undertaking by the person who obtains it”38.
Due to the gory spectacle of abuse of ex-parte orders, the courts are moving towards discouragement of the injunction. The Court of Appeal per Pats-Acholonu JCA (as he then was) in Asogwa v. Chukwu39 disclosed as follows:
“A practice which has acquired the force of law is that orders of ex-parte injunctions should be discouraged”.
Ubaezonu JCA also expressed the same sentiment in Okafor v. Onedinbe40, where he said:
“The reason for frowning on ex-parte order by this court is clear. There is no justice in making an order behind a party when no papers for such an order are served on him. Such orders make the court look small. They must be avoided”.
4.1 INTERLOCUTORY INJUNCTION
Interlocutory injunctions serve purposes similar to those by order for preservation of the subject matter of an action. By means of such injunction the status quo can be maintained until the dispute is finally determined. An interlocutory injunction seeks to maintain the status quo. Status that existed before the controversy or dispute or suit or action commenced41.
Either party may apply for it although; generally the application is by a plaintiff. A defendant can only be granted the relief against the Plaintiff only if the injunction relates to a relief claimed by the plaintiff42. But where he is counter-claiming, this need not be as he may seek interlocutory injunction against the plaintiff based on his counter-claim.
The Court of Appeal43 had in a number of cases44 stated that it is wrong and irregular to grant an injunction in favour of a defendant who did not counter-claim as such injunction would not be based on any right or interest claimed by the defendant.
Interlocutory injunction is applied for through a motion on notice45, and it must be necessarily based on a pending action and cannot be considered in complete isolation from the pleading if filed or to be filed46. An interlocutory injunction can only be granted by the court before which the subject-matter of the order is pending, a court cannot therefore grant an injunction in respect of a matter before another court47. The relief of interlocutory injunction sought must fall within the ambit of the substantive claim, arise from, be connected with or related to that claim48.
4.2 CONDITIONS FOR THE GRANT OF INTERLOCUTORY INJUNCTION
Injunction is an equitable remedy and as such it is at the discretion of the court to grant, however this discretion must be exercised judiciously and judicially. For the court to exercise its discretion in favour of an applicant certain conditions must exist and this must be evidenced in the affidavit accompanying the motion on notice. The conditions for grant of interim and interlocutory injunctions are basically the same except for the element of urgency in interim injunction which is not pronounced in interlocutory injunction49. The conditions include:
(a) Existence of a legal right
(b) Substantial issue to be tried
(c) Balance of convenience
(d) Irreparable damage or injury
(e) Conduct of the parties
(f) Undertaking as to damages
In Buhari v. Obasanjo50 the Supreme Court categorically spelt out the principles guiding of interlocutory injunction as follows:
“An interlocutory injunction which is granted in the litigation process, is basically aimed at maintaining the status quo pending the determination of the issues submitted for adjudication by the court. it is an equitable jurisdiction which the courts are called upon to exercise in the light of the facts presented before it by the applicant. And in order to enable the court exercise equitable jurisdiction, the application must present convincing facts which in themselves indicate the well laid down principles for granting the injunction. The injunction is not granted as a matter of grace, routine or course. On the contrary, the injunction is granted only in deserving cases based on hard law and facts… Some of the principles or factors to be considered in an application for interlocutory injunction are
(a) there must be a subsisting action
(b) the subsisting action must clearly denote a legal right which the applicant must protect
(c) the applicant must show that there is a serious question or substantial issue to be tried, necessitating that the status quo should be maintained pending the determination of the substantive action.
(d) the applicant must show that the balance of convenience is in favour of granting the application.
(e) the applicant must show that there was no delay on his part in bringing the application.
(f) the applicant must show that damages cannot be adequate compensation for the injury he wants the court to protect.
(g) the applicant must make an undertaking to pay damages in the event of a wrongful exercise of the courts discretion in granting the injunction”.
4.2.1 Existence of A Legal Right
It is trite law that injunctions are only granted to protect legally recognised rights51. Where the applicant has no right recognisable by law, injunction cannot be granted52. The applicant must show that he has a legal right which is threatened and worthy of protection53. Nwadialo54 opined that the Plaintiff should show a strong prima facie case, at least in support of the right he asserts, but the mere fact that there is a doubt as to the existence of such a right is not sufficient to prevent the court from granting an interlocutory injunction. He found support for this in the cases of Donmer Productions Ltd v. Bart55 and Egbe v. Onogun56.
4.2.2 Substantial Issue to be tried:
All that the applicant is required to show by his affidavit evidence in this regard is that the suit is not frivolous. He must show that there is a dispute to be resolved by the court at the trial. In the case of Oyeyami v. Irewole Local Government, Ikire56a, the Court held as follows:
“In the past, there was a need for an applicant for an order of interlocutory injunction to show that he had a prima facie case or a strong prima facie case. But today, the law in relation to interlocutory injunctions as approved by the Supreme Court is that the court should be satisfied that there is a serious issue to be tried. Having thus done, if be restrained by an injunction, then it should proceed to consider the balance of convenience, and if it is satisfied that the balance was on the side of the applicant, the court should then extract an undertaking from the applicant as to damages”.
The court in this case was apparently following the guideline laid down in American Cyanamid v. Ethicon57.
In Obeya Memorial Hospital v. A.G. of Federation57a, the Supreme Court considered the dictum of Lord Diplock in American Cyanamid case:
“The use of such expression as ‘a probability’, “a prima facie case” or ‘a strong prima facie’ in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious, in order words that there is a serous question to be tried. It is not part of the court’s function at this stage of the litigation to try to resolve conflict of evidence on affidavit as to facts on which the claims of either party ultimately depend nor to decide difficult question of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial”.
The Supreme Court approved and followed the above principle. It is no longer a requirement that the applicant must make out a strong prima facie case before he can have an injunction granted in his favour58.
4.2.3 Balance of Convenience
This factor becomes important in an application for interlocutory injunction when only the violation of the applicant’s right is denied by the respondent and not the existence of such right. In Cayne v. Global Natural Resources Plc59. Balance of convenience was succinctly defined as the balance of the risk doing an injustice.
In Ayorinde v. A.G. Oyo State60 the Supreme Court made it clear that the determination of the question by the court where the balance of convenience rests in a case is a question of facts and not of law. The court is to consider whether if the plaintiff were to be awarded a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have suffered as a result of the defendant’s continuing to do what was sought to be restrained between the time of the application and the time of the trial. In yet other words, balance of convenience is a question of who will stand to lose more if the status quo ante is restored and maintained till the final determination of the suit61.
In the case of Ashipa v. M.K.O Abiola & Ors62 the Plaintiff was aware that the defendant was going to be installed the Are Ona Kakanfo of Yorubaland for several months. The defendant had spent a lot of money in preparation, many invitees had arrived from all parts of the world. Aderoju Aderemi, J held that the balance of convenience was in favour of the defendant and the application for injunction was refused.
The Supreme Court per Belgore JSC put the issue succinctly in Buhari v. Obasanjo63:
“The balance of convenience between the parties is a basic determinant factor in an application for interlocutory injunction. In the determination of this factor, the law requires some measurement of the scales of justice to see where the pendulum tilts. While the law does not require mathematical exactness, it is the intention of the law that the pendulum should really tilt in favour of the applicant if the court comes to the conclusion that better justice or more justice in the matter will be done if the application is granted. In other words, the advantages of granting the injunction will outweigh the disadvantages which are really the odds”.
4.2.4 Irreparable Damage or Injury
The applicant is required to show that damages will not adequately compensate him for the injuries he will suffer if he succeeds, in his suit at the end of the day after the interlocutory injunction has been refused64. An irreparable injury is such an injury as could not be compensated in damages65. This consideration, no doubt, accounts for the practice of the courts invariably ordering interlocutory injunction in land suits66.
4.2.5 Conduct of Parties
The discretion of the court to grant injunction is equitable and therefore the court must consider the conduct of the parties both before and at the time of the application67. An applicant in breach of contract, for instance, would not be entitled to an injunction against a defendant alleged to be in breach of the same contract68. Delay by the Plaintiff may adversely affect the application69.
4.2.6 Undertaking as to Damages
The grant of interlocutory injunction may at end of the case prove to be wrong and the defendant may have suffered some loss. To prevent this type of injustice, the court in its equitable jurisdiction usually require the applicant to give an undertaking as to damages as a condition for the grant of interlocutory injunction. The Plaintiff does this by accepting to be liable for any damage suffered by the defendant as a result of the order of injunction if he (i.e. the plaintiff) eventually losses the action70. The Supreme Court has in many cases71 stressed that it is not every case that an undertaking as to damages must be extracted from the Plaintiff before an interlocutory injunction will be granted. The position would appear to be that undertaking as to damage would not be extracted from the applicant in an application for interlocutory injunction if, from the facts and circumstances of any particular case, the respondent would not suffer any loss or any damage72.
4.3 UNDERTAKING IN LIEU OF INJUNCTION
According to Afe Babalola73 a highly efficacious remedy which parties and the courts in
seldom make use of is undertaking by the defendant in lieu of injunction. By this, the defendant undertakes not to perform the act complained of until the conclusion of the trial. A refusal by the defendant to give an undertaking may tend to establish a probability that the apprehended acts will take place. On the other hand the preparedness of the defendant to give an undertaking may affect the balance of convenience so as to justify the withholding of an injunction74. Nigeria
5.1 PERPETUAL INJUNCTION
It is a post trial relief on injunction which is grantable as an ancillary one. It is usually granted after a full trial of the case on the merits except when the parties have consented to the court granting a perpetual injunction by way of consent judgment in which case no trial would take place75. It is granted to protect an established right at law or in equity. If the substantive right had not been established no injunction would be granted76. The Plaintiff must establish to the satisfaction of the court that he is entitled to the right which he seeks to have protected by injunction77.
The principles governing the grant of interlocutory injunction earlier discussed are also generally applicable to perpetual injunction. It is important to note, however, that the order of perpetual injunction will not be granted where it would not be just and or convenient to do so even where breach of an established right has been proved. The court set out the principles to be considered in such cases in the English case of Shelfoor v. City of London Electric Lighting Company78 where it was stated as follows:
“It may be stated as a good working rule that
(i) if the injury to the plaintiffs legal right is small,
(ii) and is one which is capable of being estimated in money;
(iii) and is one which can be adequately compensated by a small money payment;
(iv) and the case is one in which it would be oppressive to the defendant to grant an injunction……. “then damages in substitution for an injunction may be given…….”
In Okoye v. Kpajie79 it was held that in action for trespass to land and injunction, the plaintiff to be entitled to an order of perpetual injunction, must prove not only that the acts of trespass are being continued, he must also prove that the defendants have threatened to commit further acts of trespass80 where the trespass has ceased, the court will not grant a perpetual injunction. An injunction can not be ordered to prohibit a completed act81.
5.2 EQUITABLE BARS TO THE GRANT OF PERPETUAL INJUNCTION
Injunction is an equitable relief, and a party who comes to equity must come with clean hands. There must be nothing unconscionable on the part of the plaintiff. There are some equitable considerations which may bar the plaintiff from getting perpetual injunction. They include among others: acquiescence, laches, impossibility and futility of performance, illegality, hardship, defendants undertaking to desist, the plaintiff’s unclean hands, and the unlikelihood of repetition of the wrongful act by the defendant. The defendant is thus at liberty to raise any of the equitable bars above in his statement of defence and prove same at trial in order to prevent the plaintiff from obtaining the relief of perpetual injunction82.
6.1 MANDATORY INJUNCTION
A mandatory injunction is an order of the court to undo some wrongful act, for example, to pull down buildings which interfere with an established right to light and which constitute, therefore a legal nuisance. There are obvious similarities between a mandatory injunction and specific performance in that both require a positive act to be performed by the defendant. Specific performance, however, is available as a remedy only if there is a contract to enforce whereas, in most cases, the use of the mandatory injunction is confined to actions arising out of tort83. But there is no reason why a mandatory injunction should not be used to order the defendant to undo what he has already done in breach of a contract84. Mandatory injunction is also referred to as the restoratory injunction85.
Although, mandatory injunction is generally granted in an interlocutory application, it must be stated that in clear and deserving cases, it may be granted ex-parte86. Mandatory injunctions were of recent origin, they were not issued until the late 19th Century. Originally, all injunctions were negative in form and restrictive in content87.
The Court of Appeal per Chukwuma-Eneh brought out the purport of mandatory injunction in the case of Modile v. The Gov. of Lagos State88 as follows:
“An injunction to restrain is usually negative and restrictive in nature whereas an order for mandatory injunction, though directed against completed acts has to be positive in form, that is it directs a positive act with a view of restoring the condition of things in the matter to the situation before the application for the injunction”.
Mandatory injunction is an equitable remedy and like other equitable remedies is at the discretion of the court to issue, so that when the wrong complained of by the Plaintiff can be remedied by any means other than the order, the court should apply that other means89.
6.2 REQUIREMENTS FOR THE GRANT OF MANDATORY INJUNCTION
The principles governing the granting of mandatory injunction are different from those applicable to the granting of prohibiting interlocutory injunction. They include90:
1. The state of affairs which is complained of must be such that would have entitled the plaintiff to obtain prohibitory injunction restraining the defendant from bringing it about, if it has not occurred, unless prohibitory injunction would have been refused only on discretionary ground which for one reason or another are found no longer to arise or to be of decisive weight.
2. The State of affairs, which might have been prohibited from coming about, must have arisen at the time which the material order is made, even though the acts in question have not been completed.
3. It must not have become impossible for the defendant to restore the earlier position.
4. It must appear that damages and other legal remedies are not sufficient to put the plaintiff in as favourable a position as if he had received equitable relief in specie91.
5. It must appear in all the circumstances and particularly in view of equitable considerations such as laches, hardship, impossibility of performance or compliance and inconvenience as between the parties that the most just course is that the mandatory order be granted.
6. The Plaintiffs case must be unusually strong and clear.
7. Where it can be shown that the defendant attempted to steal a match on the plaintiff by rushing to complete the act, the mandatory injunction is seeking to undo or restore, mandatory injunction will lie to restore the plaintiff to the position he would have been92.
In Redland Bricks Ltd v. Morris93 it was held that the reasonableness of the defendants conduct is a relevant factor in deciding whether to order a mandatory injunction, as is the cost to the defendant of complying with it. However, the cost to the defendant is not such an important factor where he “has tried to steal a march on” the claimant94.
Where the restorative mandatory injunction is invoked to deal with the defendant who attempts to steal a match on the plaintiff, the court is not concerned with the merits of the plaintiffs case. Rather the court is concerned with the invocation of its disciplinary jurisdiction to prevent its jurisdiction to try the case before it from being frustrated or stultified and to maintain the rule of law95.
The locus classicus in this area of the law in the case of Daniel v. Ferguson96 where Kay L. J said:
“The question to be decided at the trial may be of some nicety, but this is not the time to decide them. After the defendant had received notice on Saturday that an injunction was going to be applied for, he set a large number of men to work, worked all night and through nearly the whole of Sunday, and by Monday evening, at which time he received notice of an interim injunction, he had run up his wall to a height of thirty-nine feet. Whether he turns out at the trial to be right or wrong, a building which he has erected under such circumstances ought to be at once pulled down, on the ground that the erection of it was an attempt to anticipate the order of the court. To vary the order under appeal would hold out an encouragement to other people to hurry on their buildings in the hope that when they were once up the court might decline to order them to be pulled down. I think that this wall ought to be pulled down now without regard to what the result of the trial may be”97.
In NDIC v. S.B.N Plc98 Mustapher JCA (as he then was) relying on Daniel v. Ferguson99 held as follows:
“It is only in exceptional cases that the court will grant a mandatory injunction. It is for example, granted to deal with a situation where the defendant had surreptitiously, put up a building in order to steal a match against his opponent, during the pendency of a suit claiming an injunction”.
Infact, mandatory injunction is granted where the danger or injury is so serious that the restoration of things to the status quo ante bellum is the only method where Justice can adequately be done100. Also where the court decides to grant a mandatory injunction care must be taken to ensure that the defendant knows exactly what he has to do in order to comply with its terms101.
7.1 ANTON PILLER INJUNCTION
Anton Piller developed out of the need to curb the excesses of copyright pirates in
in the 1970s. It is named after the leading case of Anton Piller K.G v. Manufacturing Process Ltd102. Briefly the facts of the case are: the plaintiffs were foreign manufacturers who owned the copyright in the design of a high frequency converter used to supply computers. They learnt that the defendants, their English agents, were planning to supply rival manufacturers with information belonging to the plaintiffs which would enable their rivals to produce a similar product. The plaintiffs wished to restrain the defendants from infringing the copyright by using confidential information or making copies of their machines, but they were afraid that the defendants, if notified would take steps to destroy the documents or would send in existence by the time the action reached the stage of discovery of documents. They accordingly made an application ex-parte for an order requiring the defendants to permit the plaintiffs to enter the defendant’s premises in order to inspect, remove or make copies of documents belonging to the plaintiffs. The trial court refused the application but the appellate court granted the application. England
Anton Piller order is obtained without notice to the defendant and its object is to prevent the defendant from removing, concealing, or destroying evidence in the form of documents or movable property103.
By this order, the court authorise one person to enter upon the premises of another and inspect property being kept there and may have such property detained. Anton Piller injunction is the form of search order. This search order is a mandatory interim injunction, acting in personam against the owner of premises, ordering him to allow an inspection of his premises, and the order was formulated as a pre-trial remedy to help owners of intellectual property gain evidence of infringement of their property rights104.
There is provision for the grant of Anton Piller Order in the Rules of the various High Courts. Order 31 Rule 2(1) of High Court of the
, Abuja Civil Procedure Rules provides: Federal Capital Territory
“On the application of a party to an action, a court may make an order for the detention, custody or preservation of any property which is the subject matter of the action as to which question may arise for the inspection of such property in the possession of a party to the action”105.
In addition to the provisions of the High Court Rules, Section 25(1) of the Copyright Act106 makes ample provision for Anton Piller Injunction. This section is the statutory codification of the common law of Anton Piller Injunction in
7.2 MODE FOR APPLICATION FOR ANTON PILLER INJUNCTION
The application for Anton Piller Injunction by its very nature, is by ex-parte motion supported by an affidavit which must disclose the following facts:
a) That the applicant has a strong prima-facie case.
b) That he stands the risk of a very serious potential or actual damage to his interest;
c) That there is a clear evidence of the defendant having in his possession offensive or incriminating documents or things and of a real possibility that the defendant may dispose of or destroy the material before an application on notice or be made;
d) That he is ready to give an undertaking to indemnify the defendant in damages of at the end of the hearing inter parties, it appears to the court that the order ought not to have been made.
There has been paucity of Nigerian cases on Anton Piller. One of the Nigerian cases on Anton Piller Injunction is the Voltic Nig. Ltd v. Grrupe Danone & Anor107.
Because the scope of an Anton Piller Order may be very wide, it has been described as the civil law “Nuclear Weapon”. Its use has extended from a direct defendant with a desire to or possibility of destroying an article subject matter of litigation to cover cases of innocent infringers. It has been used to compel the disclosure and discovery of names and addresses of suppliers and other books108.
In appropriate cases it may be granted against unnamed defendant selling particular categories of infringing articles for example against street hawkers109.
Although Anton Piller can be applied for in other cases110, it has so far been found to be more useful in the field of intellectual property or copyright disputes, and of audio video piracy cases. There are, of course, few reported cases of its application in family law cases111.
7.3 ABUSE OF ANTON PILLER INJUNCTION
where Anton Piller order originated, it quickly established itself as a pre-trial remedy capable of powerful intrusion into property right and civil liberties, it soon became a tool of abuse with the result that the courts have to fashion out means of curtailing its abuse. Even at the time of its emergence, the tendency of abuse was well appreciated by Lord Denning M. R and Ormrod L. J., both appreciated the likelihood of its being abused and cautioned that the remedy would only be available in “the most exceptional cases” often “at the extremity of the court’s powers”. England
The courts are alive to the fact that the ex-parte and draconian nature of Anton Piller Order makes it a powerful weapon in the hands of Claimants as was exemplified in the cases of Columbia Pictures Industries Inc. v. Robinson112, Lock International Plc v. Beswick113, Bhimji v. Chawani114, Universal Thermo sensors Ltd v. Hibben115.
In Columbia Pictures Industries Inc v. Robinson116, the defendants who were undoubtedly video pirates of a significant proportion were awarded damages of £10,000 against the Plaintiffs for misuse of the Anton Piller Order. The Court held that the plaintiffs and their solicitors had been in breach of all the following five criteria listed in the case. The court opined that the plaintiff’s apparent purpose was to use the Anton Piller Order as a means of effecting a summary closure of the defendants business. The court then listed the following as the criteria to be observed by the Plaintiffs and their solicitors.
1. The order must be drawn so as to extend no further than the minimum extent necessary to achieve its purpose.
2. A detailed record of the materials taken should be made by the solicitors to the Plaintiff who executes the order before the material is removed from premises.
3. No material should be taken unless clearly covered by the terms of the order.
4. Seized material, the ownership of which is in dispute should be handed over to the defendant’s solicitors on their undertaking for its safe custody and production.
5. The affidavit in support ought to err (if at all) on the side of excessive disclosure. (In the instant case they had not disclosed the fact that the defendants had already previously allowed them access to their premises).
Concerned with the continued abuse of Anton Piller Order despite the severe damage imposed on the plaintiffs in Columbia Picture’s case and the fear that the procedure might fall into disrepute prompted Sir Donald Nicholls V-C to suggest in Universal Thermo sensors Ltd v. Hibben117 that the following stricter safeguards in the execution of a search order were required for the protection of the defendant’s rights:
1. The order should be served on the defendant, and its execution supervised, by a solicitor other than a member of the firm of solicitors acting for the claimant,
2. The solicitor should be experienced and be familiar with the workings of search orders and with judicial observations on the subject.
3. The solicitor should prepare a written report on what happened when the order was executed.
4. A copy of the report should be served on the defendant.
5. Within the next few days the claimant should return to the court and present that report at an inter-parties hearing, preferably to the judge who made the order.
8.1 PROHIBITORY INJUNCTION
A prohibitory injunction is an order of the court to restrain the doing, continuance or repetition of some wrongful act. Most injunctions issued by the courts are of this type118. There are many types of prohibitory injunction which include (1) perpetual injunction, interlocutory injunction, and interim injunction. These have been discussed above. Other types include (1) Mareva Injunction, (2) Quia Timet Injunction. We shall turn our attention to these remaining two.
9.1 MAREVA INJUNCTION
The Mareva Injunction (now called a freezing injunction119) takes its name from the case of Mareva Compania Naviera v. International Bulkcarrier120 which involved an application for an interlocutory injunction to prevent a defendant in a contractual claim from removing money out of the jurisdiction of the English court. The Court of Appeal, in relatively short judgments, granted the remedy. Lord Denning MR stated the principle thus:
“If it appears that (a) debt is due and owing and there is danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him of disposing of these assets”121.
The Mareva Injunction simply speaking is a means by which a creditor suing for a debt can obtain an order against a defendant who is not within jurisdiction but has assets within, restraining such defendant from removing such assets from within jurisdiction or disposing of them pending trial122. The assets in question need not be the subject matter of the suit123 and here lies the differences between Mareva and the conventional interlocutory injunction124.
In Sutuminu v. Ocean Steamship Nig Ltd125, the Plaintiff / Appellant had inter alia prayed the
to issue a “Mareva” injunction against one of the defendant’s a non-Nigerian. When the case came up on appeal to the Supreme Court, the question whether the said High Court could grant “Mareva” injunction was raised by Nnaemeka Agu JSC. After referring to sections 10, 13 & 18 of the High Court Law of the State, the learned JSC concluded that by the joint effect of these sections, the High Court of Lagos State High Court of Lagos State has jurisdiction and power to entertain and in appropriate cases, grant a ‘Mareva’ injunction as was developed by the High Court of Justice in in 1975. As the section of the High Court of Lagos referred to above are common to all the High Court Laws in the country, what is said about the England in regard to competence to issue Mareva injunction is also true of any other High Courts126. High Court of Lagos State
It is to be noted however, that under the Rules, a condition precedent to the making of such order is the failure of the defendant, upon the application of the plaintiff, to furnish sufficient security in fulfilment of any decree that may be made against him127.
The Mareva order takes effect from the moment it is pronounced on every asset of the defendant in relation to which it is granted and everyone who has notice or knowledge of it is obliged to do whatever he reasonably can do to preserve the assets covered by its terms, and if a person assist in disposing of them or any part of them he is guilty of interference with the course of justice128.
9.2 MODE OF APPLYING FOR MAREVA INJUNCTION
By its very nature, an application for Mareva injunction is by ex-parte motion supported by an affidavit containing facts upon which the applicant relies for the grant of the order129.
According to Afe Babalola130, “in exceptional cases, counsel can use unsworn affidavit in draft form only. It is also possible for counsel to present the facts orally before the court with undertaking to swear to affidavit”.
The affidavit must disclose the following facts for the application to be successful131:
a) There is an action by the Plaintiff pending against the defendant within jurisdiction.
b) The existence of a good arguable case
c) That the defendant has assets within jurisdiction, particulars of which must be furnished
d) Grounds for believing that the defendant owns the assets.
e) That there is real likelihood of the defendant removing the assets from within jurisdiction, thus rendering any judgment which the plaintiff may obtain nugatory.
f) That the balance of convenience is on the side of the Plaintiff.
g) That the Plaintiff is ready to give an undertaking as to damages132.
It need be pointed out that another area where the Mareva injunction is different from ordinary interlocutory injunction is that in the later; all that the applicant needs to show is that there is a serious question to be tried133. While in the former, the applicant succeeds on the strength of his case134.
In proving that there is real likelihood of the defendant removing the assets from within the jurisdiction thus rendering any judgment which the Plaintiff may obtain nugatory, the plaintiff may need to place before the court the following facts:
a. That the defendant is a foreigner and/or that his places of business and domicile are in a foreign country.
b. That the defendant’s history show hat he has removed assets from jurisdiction before or that he is a persistent debtor135.
c. That the assets could easily be removed and that he has not given any indication of willingness to pay136.
The application will be refused even if the plaintiff proves that the defendant will remove assets from the country, if there is evidence that the defendant is not one who will seek to avoid its liability137. In the case of Establishment Esefka International Aastalt v. Central Bank of Nigeria138, where Megarry, V.C. held that a reputable foreign company accustomed to paying its debts ought not to be restricted from removing its assets. The defendant Bank filed affidavits showing that it had huge funds located around the globe and no history of avoiding liabilities. On this score, the court refused the plaintiffs application for Mareva injunctions.
It must be quickly added that this is only possible during inter-parties hearing. Inter parties applications are made in cases that are not urgent and also in other cases, following the application for a Mareva Order ex-parte. In most cases ex-parte orders are usually made to last for a very short time, short enough for the plaintiff to have secured the order without which the defendant would have removed his assets from the jurisdiction or dispose of them so as to render unavailable or untraceable and this render nugatory and judgment of the court139.
A plaintiff when applying for a Mareva Order of ex-parte is obliged to exhibit a measure of good faith, Uberrimea fide is the key word. He is to disclose to the court all material facts. Not only facts that would aid his getting the order but all other facts which he feels would have influenced the mind of the judge otherwise. If he does not do this, the defendant would proffer these suppressed facts at the inter-parties stage or in an application to discharge and accuse the plaintiff of material non-disclosure140.
9.3 CAN NIGERIAN COURTS ORDER WOLRD-WIDE MAREVA INJUNCTION?
Instances of courts in
Nigeria granting a worldwide Mareva injunction are not as common as their counterparts in . Nigerian courts can grant worldwide Mareva injunctions and the jurisdiction to grant such species of Mareva injunction exists by the combined effect of the States High Court Laws and High Court Rules. England
The English Court of Appeal in Babanaft International Co. S.A. v. Bassantne & Anor141 held that the court had jurisdiction to grant a Mareva injunction over a defendant’s foreign assets both before and after judgment, but the court would not make an unqualified Mareva injunction covering assets abroad because it would involve an exorbitant and extra-territorial assertion of jurisdiction of an in-rem nature over third parties outside the jurisdiction. This instead, such an injunction if made, should be qualified by an express proviso making it clear that the injunction was directed to the defendant himself and did not affect the rights of third parties or seek to control their activities.
However, the same court in Ressel N.V v. Oriental Communications & Shipping U.K142 held that although a court may by law clothed with the jurisdiction to grant world-wide Mareva injunction in respect of assets and parties outside jurisdiction subject to certain modifications, but where a court so clothed with jurisdiction is asked to enforce a judgment in aid of foreign arbitral or judicial award it should not stray beyond its own territorial jurisdiction save in very special circumstances.
10.1 QUIA TIMET INJUNCTION
The Latin phrase quia timet ‘because he fears’. A court of equity may grant a quia timet injunction where a claimant’s right have not yet been infringed but they are being threatened. However, such an injunction is not commonly granted, a claimant must make out a strong case to obtain one. He must show that there is an imminent danger of very substantial damage or further damage occurring143.
Both the origins as well as the purpose of a quia timet injunction were aptly explained by Lord Up John in Rolland Bricks Ltd v. Morris144 when he stated that:
“…..to prevent the jurisdiction of the court being stultified, equity has invented the quia timet action, that is, an action for an injunction to prevent an apprehended legal wrong though none has occurred at present”.
If the court refuses a quia timet injunction, this does not prejudice the claimant’s right to apply later for an interlocutory or a perpetual injunction when the damage does occur145.
11.1 INJUNCTION PENDING APPEAL
This is another specie of injunctions. It is however different from other types of injunction in the sense that it is made in the exercise of the rare jurisdiction that a trial court is left with when it must have delivered judgment or ruling and become “functus officio” in respect of the matter before it146. An injunction pending appeal, is usually applied for by an unsuccessful plaintiff whose claim has been dismissed. The result in such a case is that there is nothing to enforce against the defendant. Rather, the defendant could go ahead or carry on with those activities which the plaintiff had sought to prevent the defendant from carrying on such activities against which the appeal is being prosecuted, the plaintiff will apply, not for a stay of execution, but for an injunction pending appeal.
It is not only an unsuccessful plaintiff that can apply for an injunction pending appeal. An unsuccessful counter-claimant could also apply for an injunction pending appeal. Furthermore, even if the plaintiff’s claim were upheld, an injunction pending appeal is the appropriate remedy that a defendant could apply for, so long as the judgment in favour of the plaintiff was merely declaratory147.
Both the High Court as well as the Court of Appeal have inherent jurisdiction to order an injunction pending appeal148.
An application for injunction pending appeal is brought by way of motion on notice. The motion is supported by affidavit, the following documents need to be exhibited in the affidavit:
1) a certified true copy of the judgment appealed against
2) a certified true copy of the ruling or order dismissing the first application if one had first been made to the lower court.
3) the notice of appeal filed
4) any other relevant documents that will assist the applicant to make out his case.
His Lordship Adekeye JCA in Soyanwo v. Akinyemi149 outlined the seven conditions for the grant of injunction pending appeal as follows:
i) The presence of a legal right.
ii) Whether there is a serious triable issue
iii) Whether the balance of convenience is in favour of the appellant
iv) Whether damages would be adequate compensation
v) Whether the applicant’s conduct is not reprehensive
vi) In land matter, whether the property in respect of which injunction is sought can be identified or ascertained.
vii) Whether there is a satisfactory undertaking as to damages150.
The Court in Onuzulike v. Commissioner for Special Duties151 laid down the following guidelines for the grant of injunction pending appeal:
a) There must be special or exceptional circumstances warranting the grant.
b) The grounds of appeal must raise a novel or recondite point of law
c) The grounds of appeal must raise substantial legal issue to be determined.
d) It is right to maintain the status quo by preserving the res pending appeal.
He who comes to equity must do equity. The question, therefore is, has the party acted timeously and in good faith, both in filling the appeal and bringing the application for injunction? If he is guilty of undue delay, certainly it would amount to injudicious exercise of discretion to restrain a respondent who might be put through sudden pain, expense and inconvenience – a condition he might have avoided had the applicant acted timeously. And as Afe Babalola152 has rightly observed, the principles for the grant of an injunction pending appeal, like all other discretionary remedies work merely as guides and would not deprive the court of the exercise of its discretion.
12.1 MUST A PARTY OBEY AN INJUNCTIVE ORDER
It is trite law that every order of court of competent jurisdiction must be obeyed and until it is set aside any disobedience of the order amounts to contempt of court153. However, it may agitate the minds of many if it is all disobedience of injunctive order that amounts to contempt of court. In answer to above question, the Supreme Court in Oduogwu v. Odogwu154 there is an exception e.g. where the order disobeyed was made without jurisdiction or where the party in disobedience is challenging the validity of the owner.
The Supreme Court put the issue beyond doubt in Mobil Oil Nig. Ltd v. Assan155.
“Chief F.R.A. Williams, SAN referred the court to the cases of Huang v. Bello supra and Rastico Nig. Ltd v. Societe Generale Surveillance S. A. supra. They are Court of Appeal decisions and were in my view rightly decided. What the court below was saying in both cases was that where a person is appealing against a matter in which he has suffered a defeat and asked for a stay of execution pending the determination of the appeal, he would not be liable in contempt merely because he had not obeyed the order which he is appealing against or which he wants stayed pending the appeal”.
Trial and appellate courts have always had jurisdiction to grant stay of execution of judgment pending appeal by an unsuccessful litigant pending his appeal had not been treated as a disobedience to the judgment he is appealing against.
It is therefore clear that in exceptional cases there can be lawful disobedience of an injunctive order156.
13.1 CONCLUSION AND RECOMMENDATION
This paper has traversed though briefly through the principles and practice of the equitable remedy of injunction. As elaborated above injunction is a veritable tool in the hands of litigant, legal practitioners and the judex for the enthronement of justice. It is without doubt that in absence of the remedy of injunction more often than not the courts would be faced with a fait accompli.
It is also without doubt that the remedy of injunction has been subject of much abuse especially interim injunction and the Anton Piller Orders obtained ex-parte, however this can not be enough to discredit immense contribution the remedy has made and will make in the attainment of justice.
Despite the contribution of the remedy to the quest for justice in
, there is still room for improvement. It is being recommended that our rules of court should allow judges to grant injunctions in exceptional cases via the telephone or email to reflect the modern growth in technology as is being done in some jurisdictions. Also our judges should in some cases of urgency and secrecy hear applications for interim injunctions in Chambers. Judge should be allowed to hear applications for injunctions anywhere they are especially in cases of real urgency where it will be late to wait for the judge to sit in normal court hours. Also noted earlier, in Re No. 2157 an English High Court Judge granted ex-parte injunction at his residence on a Sunday to prevent the husband from taking their child to Nigeria Australia, what would have happened if the case has arisen in ? Nigeria
1. Afe Babalola, 2007, Injunctions and Enforcement of Orders (2nd Edition)
2. Afolayan A. F. and Okorie P.C., 2007, Modern Civil Procedure Law – Dee Sage Nigeria Limited,
3. Geoffrey Samuel, 2001, Law of Obligations and Legal Remedies, 2nd Edition, Lavendish Publishing Limited,
4. Nwadialo F. 2000 , Civil Procedure in
Nigeria, 2nd Edition University of Lagos Press, . Lagos
5. Oniekoro, F.J., 2009, Civil Litigation in
Nigeria, Practice Note and Precedents, Chenglo Ltd, . Enugu
6. Oyewo Toriola, 1994, The Law of Civil Litigation in Nigeria, Jator Publishing Company,
7. Terence Ingman, 2002, The English Legal Process, 9th Edition,
Oxford University Press . Oxford
1 See Terence Ingman, 2002, The English Legal Process, 9th
Edition Oxford University Press, at 464. Oxford
2 6th Edition P. 714
3 (2001) 2 NWLR (Pt. 696) 184 at 195
4 See generally A.F. Afolayan awl P.C Okorie, 2007, Modern Civil Procedure Law, Dee-Sage Nigeria Limited,
5 See Kotoye v. CBN (1989) 2 S.C.N.J. 31
6 See Order 8 Rule 8,
Civil Procedure Rules. Oyo State
7 (1998) 7 SCNJ 328 at 353.
8 See Fidelis Nwadialo, 2000, Civil Procedure in
Nigeria, 2nd Edition University of Lagos Press, at 553. Lagos
9 (2002) 16 NWLR (Pt. 793) 262
10 See generally. Afe Babalola, Injunctions and Enforcement of Orders (2nd Edition) 2007. Afe Babalola,
11 (2002) 8 NWLR (Pt. 821) 163 at 185 - 186
12 See also Odutola v. Lawal (2002) 1 NWLR (Pt. 749) 433.
13 See Afe Babalola (supra) at 28.
14 Ibid at 29
15 See also Order 34 Rule (1) of the High Court of the
, Abuja Civil Procedure Rules 2004. Federal Capital Territory
16 Supra at 33
17 (1972) 1 NLR
18 See Afe Babalola (supra) at 33
19 Supra at 555
20 See Order 8 Rule 99 and Order 7 Rule 9
21 (1989) 4 NWLR 229 @ at 238
22 7-Up Company v. Abiola (1995) 2 SCNJ 37; (1995) 3 NWLR (Pt. 383) 257
23 See also A.F. Afolayan and P.C Okorie supra at 184 where the authors expressed similar opinion.
24 He relied on the case of Nig Cement Co Ltd. v. N.R.C (1992) 1 NWLR (Pt. 220) 747 at 760.
25 (1989) 3 NWLR (Pt. 112) 685 at 698
26 Supra at 286
27 Odutola v. Lawal (2002) 1 NWLR (Pt. 749) 433; Unibiz Nig. Ltd v. C.B.C.L Ltd. (2003) 6 NWLR (Pt. 816) 402 @ 433; Gov. Lagos State v. Ojukwu (1986) 2 NWLR (Pt. 18) 621
28 Order 39 Rule 3 (3)
29 Order 39 Rule 3(4)
30 See Kotoye v. C.B.N (1989) 1 NWLR (Pt. 98) 49
31 See also Order 8 Rule 11 of the Oyo State High Court Civil Procedure Rules 1988
32 See Ogbonna v. NURTW (1990) 3 NWLR (Pt. 141) 696 at 705 - 708
33 See Harbottle Ltd v. National Westminister Bank Ltd (1978) QB 146 at 157.
34 Order 8 Rule 11 of
Civil Procedure Rules. Oyo State
35 R.D. Harbottle v. National Westminister Bank Ltd (1977) 2 All ER 682 at 871.
36 Unreported Suit No. FCI/JC/M/299/93
37 (1989) 3 NWLR (Pt. 108) 234.
38 See also Fenner v. Walson (1893) & Ch. 656
39 (2003) 4 NWLR (Pt. 811) 540
40 (2003) 9 NWLR (Pt. 825) at 415.
41 See Gov. of
v. Ojukwu (1986) 2 SC 277 at 317. See generally Nwadialo F. supra at 581 Lagos State
42 Nig. Cement Co v. NRC (1992) 1 NWLR 747 at 760.
43 See generally Nwadialo F. supra at 590
44 Challenger v. Royle (1887) 36
45 Afolayan A. F and Okorie P. C (supra) at 196.
46 Saraki v. Kotoye (1990) 4 NWLR (Pt. 144 @ 170
47 Adebomi v. Haro (DC (1965) NMLR 242
48 Gombe v. P. W. Nig. Ltd (1995) 7 SCNJ 19 @ 29, 36 - 37
49 See Afolayan A. F. and Okorie P. C (supra) at 198
50 (2003) 17 NWLR (Pt. 850) 587
51 Green v. Green (1987) 2 NSCC 1115 at 1120; Commissioner of Works,
v. Devcon Ltd (1988) 3 NWLR (Pt. 83) 407 Benue State
52 Ladunni v. Kukoyi (1972) 1 ANLR (Pt. 1) 133; Gourient v.
Union of Post Office Workers (1977) 3 All ER 70
53 Akapo v. Hakeem Habeeb (1992) 7 SCNJ 119 @ 137; Ojukwu v. Gov. of
(1986) 3 NWLR 39 Lagos State
54 supra at 589
55 (1967) 2 All ER 339 a 339
56 (1972) 1 All NLR (Pt. 1) 95
56a (1993) 7 NWLR (Pt.270) 462
57 (1975) 1 All ER 504
57a (1987) 3 NWLR (Pt. 60) 325 at 337
58 Ayorinde v. A.G. Oyo State (1996) 2 S.C.N.J 198
59 (1984) 1 All E.R 225 at 237
61 See generally Afolayan A.F and Okorie P.C (supra) at 199
62 Reported in Afe Babalola supra at page 91.
63 (2001) 11 NWLR (Pt. 724) 369
64 See Afolayan A.F. and Okorie P. C. (supra) at 199.
65 A.G. v. Hallet (1847) 16 M and W 569; Akinlose v. A.I.T Ltd (1961) WNLR 116.
66 Nwadialo F supra at page 595
67 Ladunni v. Kukoyi (supra) at 136 - 137
68 Kotoye v. CBN supra.
69 See e.g. Shorwell v. Combined Incandescent Mantles Syndicate Ltd (1907) WN 211 at 212.
70 Nwadialo F supra at 596
71 Oduntan v. General Oil Ltd (1995) 4 SCNJ 145; ACB v. Awogboro (1996) 2 SCNJ 233 at 240; Afro- Continental v. Ayantunji (1995) 12 SCNJ
72 Nwadialo F. supra 598
73 Supra at 94
75 Ibid at 183
76 Yalaju – Amaye v. A.R.E.C Ltd (1990) 4 NWLR (Pt. 145) 422, 451, 452, Iyimoga v. Gov. Plateau State (1994) 8 NWLR (Pt. 360) 73 at 103.
77 A.G. Abia State v. A.G. Federation (2005) 13 NWLR (Pt. 940) 452.
78 (1895) 1
79 (1972) 6 SC 176
80 See also Afe Babalola supra at page 180
81 Adedeji v. Akintero (1991) 8 NWLR (Pt. 208) 209
82 See generally Afe Babalola supra at 194.
83 See Terence Ingman, 2002, The English Legal Process, 9th Edition,
Oxford University Press, at 466. Oxford
84 See Lord Manners v. Johnson (1875) 1
D. 673 Ch.
85 See Afe Babalola supra at 127.
86 See A.G. v. Nicho (1808) 16 RES 338 cited with approval in CBN v. Industrial Bank Ltd (1997) 9 NWLR (Pt. 522) 723.
87 See Smith v. Smith (1875) 20 EQ 500 at 504.
88 (2004) 12 NWLR (Pt. 887) 354.
89 See Afe Babalola supra at 128, see also NDIC v. Savannah Bank of Nig. Plc (2003) 1 NWLR (Pt. 801) 311.
90 See generally Afe Babalola supra at 128
91 Allport v. Securities Corporation (1895) 64 L.J
92 For these requirements see generally, Hopper v. Rogers (1975) 5 Ch. 43; Redland Bricks Ltd v. Morris (1970) AC 652 at 655-666; Shepherd Homes Ltd v. Sandham (1971) Ch. 340 at 351; CBN v. UTB (Nig.) ltd. (1996) 4 NWLR (Pt. 445) 694 at 702; CBN v. Industrial Bank Ltd (1997) 9 NWLR (Pt. 522) 712 at 723.
95 See Modile & Anor v. The Gov. of Lagos State supra. See also Afe Babalola supra at page 130.
96 (1891) 2
27 at 30 Ch.
97 See also Joel v. Horsey (1895) 2
98 (2003) 1 NWLR (Pt. 801) 311 at 372
100 Coker v. Reis (2000) 6 NWLR (Pt. 659) 78
102 (1976) 1 AER 77
103 See Crest Home Plc v. Marks (1987) 2 All E.R 1074 H.L per Lord Oliver at Pp. 1078-1081.
104 Geoffrey Samuel, 2001, Law of Obligations and Legal Remedies, 2nd Edition, Cavendish Publishing Limited,
, at 156; see also Exp. Island Records (1978) Ch. 122 London
105 Order 33 Rule 2 (
Oyo State); Order 38 Rule 4 ( ). Lagos State
106 Cap. C28 LFN 2004
107 (2003) 8 NWLR (Pt. 821) 58
108 See Emi Ltd v. Sarwar (1997) FSR 146
109 See Emi Records Ltd v. Kudhali (1985) FSR 36.
where the use of the order had evolved and widely developed, it had been used on an occasion to require the defendant not to leave jurisdiction and to deliver up his passport until the information requested had been obtained. Bayer A G. v. Winter No. 1 (1986) 1 WLR 497. England
111 Emmanuel v. Emmanuel (1982) 1 WLR 342; Kepa v. Kepa (1983) 4 FLR 515.
112 (1986) 3 All ER 338 per Scott J at P. 371
113 (1989) 3 All ER 373 per Hoffman J at PP. 382 - 386
114 (1991) 1 All ER 705 per Scott J at P. 712
115 (1992) 3 All ER 257 per Sir Donald Nicholls V-C at p. 275
118 See Terence Ingman supra at 465
119 See f at 155.
120 (1980) 1 All ER 213
121 Ibid P. 125
122 See Afolayan A. F. and Okorie P. C supra at 204
123 Efe Finance Holdings v. Osagie (2000) 5 NWLR (Pt. 658) 546
124 See Afolayan A. F Okorie P. C. op. cit.
125 (1992) 5 SCNJ 1 at 17 - 22
126 See Nwadialo F. supra at 600
127 Order 15 Rule 1 (b) (ii)
Abuja, Order 16 Rule 1(b) (ii) Oyo State
128 See Afe Babalola supra at 143
129 See Allen v. Jumbo Holdings Ltd (1980) 2 All ER 502
130 Op. cit.
131 See E.S & C. S. Ltd v. N.M.B Ltd (2005) 7 NWLR (Pt. 424) 215
132 See Ohrojaiye v. Continental Feeders Ltd (2001) 10 NWLR (Pt. 722) 657; Trade Bank Plc v. Banilux (2000) 13 NWLR (Pt. 685) 483
133 Ayorinde v.
supa A. G. Oyo State
134 Afolayan A I. and Okorie P. C. supra at 206
135 Barclays Johnson v. Yuill (1980) 3 All E. F. 190 @ 195
136 Hunt v. B.P. Exploration Co. (
) Ltd (1980) N2LR 104; Libya
137 Johnson v. Yuill (1980) 3 All ER 190 at 198.
138 (1979) 1 Lloyds Report 445
139 See Afe Babalola supra at 155
140 Ibid; see also E.S & C. S Ltd v. N.M.B Ltd (supra).
141 (1989) 1 All ER 433
142 (1990) 3 All ER 545
143 Crowder v. Tinkler (1816) Ves Jr 617 at p. 622, A.G v. Nottingham Corporation (1904) 1
144 (1970) AC 652
145 Terence Ingman, Supra at page 473.
146 See Afe babalola supra at 303
147 See Tukur v. The Gov of
(1989) 4 NWLR (Pt. 117) 517 Gongola State
148 See UBA Plc v. Mode Nig. Ltd (2001) 1 NWLR (Pt. 640) 270
149 (2002) FWLR (Pt. 104) 592
150 See also Nwanganga v. Military Gov. of
(1987) 3 NWLR (Pt. 59) 185 Imo State
151 (1990) 7 NWLR (Pt. 161) 262
152 Op. Cit. PP. 254 - 255
153 See the case of Mobil Oil Nig Ltd v. Assan (1995) 8 NWLR (Pt. 412) 129.
154 (1992) 2 NWLR (Pt. 225) P. 539 at 55
155 (1995) 8 NWLR (Pt. 412) 129 at 150 per Ogwuegbu JSC.
156 Afe Babalola Op. Cit. at 61.