Injunction

It is an order of an equitable nature preventing the person to whom it is directed

from performing a specific act or in certain exceptional circumstances and cases
requiring him to perform a specified act
Function:
It is the province of the law that the res should not be destroyed before the
judgement of the court.
To preserve the res
Injunction is also a remedy of discretionary nature.
Legal and Equitable Rights.
A right that is to be protected by an injunction must be one that is known to
law or equity.
Cowley v. Cowley
An injunction does not lie against a divorcee to prevent her from using her
married name.
Day v . Brownrigg
An injunction cannot restrain a neighbor from using an address similar to
the plaintiff's
Types of injunction
According to M.I. Jegede, Injunctions are classified based on three distinct
criteria:
The Nature of the order itself
The classification by nature looks at what the order requires to be
done. E.g An injunction is mandatory (positive) where the order
compels a party to do a specific act, while it is prohibitory
(restrictive) where it prohibits or restrains the doing of a specific
act

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 Mandatory Injunction:
if the unlawful act has been committed and an order restraining its
commission is therefore meaningless, justice can sometimes be
done by issuing a mandatory injunction ordering the act to be
undone
It is a "positive" order requiring something to be done.
Prohibitive language vs Positive order
Historically, courts favoured prohibitory language even when
the intent was mandatory. They would order a defendant to be
"restrained from allowing buildings to remain" rather than
ordering them to pull them down.
Sky Petroleum Ltd v VIP Petroleum Ltd,
where an injunction restraining the defendant from
withholding supplies of petrol was equivalent to specific
performance of the contract.
However, in Jackson v. Normanby Brick Co
the Court of Appeal moved away from this indirect
phrasing. Lindley M.R. stated that courts should speak in
plain terms and use direct words (e.g., ordering buildings to
be "pulled down and removed") rather than confusing
restrictive language.
Requirements
When the injury done and the damages cannot be
estimated and sufficiently compensated
When restoration is the only way justice can be done
When the injury complained of its in breach of an express
agreement
When the harm done is a simple act that can be easily done
When the defendant/respondents attempts to steal a march
on the other party

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 When is it granted
According to Charrington v. Simons & Co. Ltd,’
the court considers fairness and the balance of
convenience. Will a mandatory order produce a fair result in
the existing circumstances? The court weighs the benefit
the order confers on the Plaintiff against the detriment it
causes the Defendant.
A mandatory injunction is often granted when
a Defendant attempts to "steal a match"
(anticipate/frustrate the court's order) by rushing work after
receiving notice of legal action.
Daniel v. Ferguson
After receiving notice of a motion for an injunction, the
Defendant deployed a large workforce to build a wall
overnight and through Sunday, reaching 39 feet before
the interim order arrived.
The court ordered the wall to be pulled down
immediately, regardless of the trial's eventual outcome.
To allow the wall to stand would encourage others to
"hurry up" their illegal acts in hopes that the court
would hesitate to undo a completed structure.
Nigerian threshold
Nigerian courts have adopted these principles but apply a
high threshold for mandatory orders. Courts are reluctant to
grant mandatory injunctions except in "very clear cases,"
as held in A.G. Anambra State v. Okafor.
Why is the threshold high
Mandatory Injunctions require the clearest evidence
and a very high standard of proof because the
consequences of such orders can be grave and often
irreversible.

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 Ojukwu v. Governor of Lagos State
The Supreme Court castigated the government for forcibly
ejecting Ojukwu while his suit was pending. It affirmed the
Court of Appeal's mandatory order restoring him to
possession, stating it is serious contempt to flout the court and
then seek remedy in a higher court.#
Obeya Memorial Hospital v. A.G. Federation
The Supreme Court ordered the restoration of a hospital
premises after the Benue State Government used military force
to eject staff to recover a debt
Military Governor of Lagos state v. Adeyiga
Adekeye JSC held that: Mandatory injunctions are granted
where the injury cannot be estimated or sufficiently
compensated by damages, and restoration of things to their
former condition is the only method to ensure justice.
Prohibitory Injunction:
Its purpose is to restrain or prohibit the doing of an act. It is a
"restrictive" order.
Sub classification
Notably, both types can be classified as either Interlocutory
(temporary/during the suit) or Perpetual (final).
How can a rather permanent looking mandatory injunction be
given interlocutorily?
Although it is demanding a positive action, it is usually given as
the result of the action of the defendant attempting to tamper
with the res and as such it is in actuality returning things to
status quo. Daniel v. Ferguson

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 💡 NOTE: If the case is later found to have been frivolous
the court would order high damages for the effect of
the cost of the mandatory injunction

Quia timet
A quia timet injunction is one which issues to prevent an
infringement of the claimant’s rights where the infringement is
threatened, but has not yet occurred. The jurisdiction is one of long
standing, and exists in relation to both perpetual and interlocutory
injunctions, and to both prohibitory and mandatory injunctions. The
claimant must show a very strong probability of a future
infringement, and that the ensuing damage will be of a most
serious nature.
The Duration of the order.
Perpetual and Interlocutory Injunctions
Perpetual Injunction
“Perpetual” does not mean necessarily that the effect of the
order must endure forever; it means that the order will finally
settle the present dispute between the parties, being made as
the result of an ordinary action, the court having heard in the
ordinary way the arguments on both sides.
Ancillary relief
It is not an independent claim but a consequence of
proving the main right in dispute. For example, if a
plaintiff establishes ownership of land, a perpetual
injunction may be granted to stop trespass.
Procedural requirement:
It must be claimed in the substantive suit (e.g., in the
writ of summons or statement of claim).
It cannot be filed as a standalone application or
included in the originating process itself. Doing so

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 would undermine its character as a final equitable
remedy.
Globe fishing v Coker.
Binds the parties perpetually. Given at the finality of the
trial. Fruit of the action of a successful plaintiffs
Per Idris JCA in Efcc v. Abubakar and ors
The aim is to protect the right in perpetuity
Per Niki Tobi JCA in the case of Adeniran v Alao,
the plaintiff must convince the Court that he is entitled to
the grant of the remedy of perpetual injunction by
establishing the merits of his claim.
Interlocutory Injunction
What is it?
a claimant may not always be able to wait for the action to
come on in the normal course; it may be that irreparable
damage will be done if the defendant is not immediately
restrained. If such is the case, the claimant will serve on the
defendant a notice that an application is being made to the
court for an interlocutory injunction. The service of this
notice will enable the defendant also to be heard, if he or
she wishes, but the hearing will not be a final decision on
the merits of the case. If the claimant has made out a
sufficient case, the judge will grant an interlocutory
injunction, which is effective only until the trial of the action
or some earlier specified date
Objective of an interlocutory injunction
The object of an interlocutory injunction is “to prevent a
litigant, who must necessarily suffer the law’s delay, from
losing by that delay the fruit of his litigation.”
Standard of proof

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 Former stance
Historically, an applicant for an Interlocutory Injunction
had to establish a probability of success at trial or a
strong prima facie case that they were entitled to the
right being violated. It required a higher standard of
proof.
It essentially involved "trying issues of fact twice" (first
in the application, then in the substantive suit). It
forced the court to undertake a "preliminary trial" to
satisfy itself that the Plaintiff would be entitled to
judgment based solely on the initial evidence.
New Approach
American Cyanamid Co v. Ethicon Ltd
The court laid down the "American Cyanamid" Test:
Serious Question to be Tried:
The claim must be substantive, not frivolous or
vexatious.
Obeya Memorial Hospital v AG Fed
Court & Appeal Decision: Both courts
refused the injunction, saying the Appellant
hadn’t shown a “strong prima facie case.”
Issue: What is the correct standard for
granting an interlocutory injunction over
land—“strong prima facie case” or “serious
question to be tried”?
Justice Obaseki (lead): Lower courts erred.
The proper test is whether there’s a serious
question to be tried and where the balance
of convenience lies. Since ownership was
disputed, the status quo (Appellant in
possession) should have been preserved.

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 Justice Saidu Kawu: The Appellant’s
affidavit was enough proof of occupation at
this stage. He held the Appellant was
entitled to the interlocutory injunction to
restore possession
Adequacy of Damages:
Would financial compensation be adequate for
either party if they win at trial? If damages are
sufficient (and the loser can pay), an injunction
is usually unnecessary.
Per Niki Tobi JSC in the case of Shittu v
Ebunolu,
the applicant must show there is a serious
question to be tried, that the balance of
convenience is on his side, damages cannot
be an adequate compensation, inter alia, for
interlocutory injunction to be rendered by
the Courts.
Att Gen v. Guardian NEwspapers Ltd [1987]
the publication of confidential material
De Falco v Crawley BC [1980]
no injunction where claimant could not give
worthwhile undertaking in damages
Balance of Convenience:
If damages are inadequate, the court weighs the
potential harm to both sides. Preserving the
"status quo" is a major factor here. Only if the
balance of convenience is completely even will
the court consider the relative strength of the
parties' cases.
Express Newspapers Ltd v Keys,

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 where an interlocutory injunction was
granted to restrain a trade union from
unlawfully inducing a breach of contract by
the claimant’s employees, by persuading
them to support a political strike.
If the injunction was refused, the employer
would suffer unquantifiable damage,
whereas if it was granted, the union would
suffer no harm save political
embarrassment.
Stalemate of convenience
If the balance of convenience does not
clearly favour either party, then, the
deciding factor will be the preservation of
the status quo.
ACB v. Awogboro
The Supreme Court unanimously dismissed
the bank's appeal. It held that the trial court
rightfully exercised its equitable discretion
to grant the injunction because the plaintiffs
established a triable issue, and the balance
of convenience was strictly in their favor
(selling the family home would cause
irreparable injury, making a return to the
status quo impossible).
Nnaemeka-Agu JSC in Oyeyemi v. Irewole Local
Government
provided a definitive summary of these steps in this
case; namely:
1. Serious Question to be Tried:
2. Nature of the Act: The Court must determine if
the act complained of is the type that should be

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 restrained by an injunction.
3. Balance of Convenience: If the first two are
satisfied, the Court proceeds to consider the
Balance of Convenience. It must determine if
the inconvenience of granting
the injunction outweighs the inconvenience of
refusing it.
4. Undertaking as to Damages: If the Balance of
Convenience is on the side of the Applicant, the
Court should then extract from the Applicant an
Undertaking as to Damages (a promise to pay
damages if the injunction turns out to be
wrongful).
Interim injunctions
Given with a specific date, usually after an adjournment to the date
of the next trial Ladunni v Kukoyi
Usually given pending the determination of an interlocutory
injunction.
Kotoye v. Central Bank of Nigeria, Nnaemeka-Agu JSC
noted a common error in legal practice where the terms
"Interim" and "Interlocutory" injunctions are used
interchangeably, as if they have the same meaning
Key aspects of an Interim Injunction
1. To prevent a party from taking actions that could make a
final judgment pointless, such as destroying evidence or
selling property in dispute.
2. The duration is temporary; they usually last only until a
specific date (usually 7 days) or until an interlocutory
application can be heard in court.
3. Applicants must generally prove there is a serious question
to be tried, that damages would not be an adequate

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 remedy, and that the "balance of convenience" favours
them.
4. They can prohibit action (prohibitory) or mandate that an
action be taken (mandatory).
5. Granted in cases of extreme urgency where the other party
cannot be put on notice (e.g., the subject matter or res is
about to be destroyed) and waiting for a full trial would
result in irreversible damage. It is rarely granted
Differences between Interim and Interlocutory
1. Nature and procedure: An interim injunction is applied for
and granted ex parte (without notice to the respondent) to
address extreme emergencies, whereas an interlocutory
injunction is always sought on notice, allowing both parties
to be heard (audi alteram partem) before the court makes a
decision.
2. Lifespan: The lifespan of an interim injunction is extremely
brief, operating as a stop gap that lasts only for a few days,
a specified date, or until the motion on notice is heard. In
contrast, an interlocutory injunction remains in force much
longer, preserving the status quo until the final
determination of the substantive suit.
3. Purpose and Conditions: While both aim to preserve the res
of the litigation, an interim injunction is strictly to prevent
irretrievable mischief that would occur if time were taken to
serve notice. Securing an interlocutory injunction,
however, requires satisfying broader legal pillars, such as
proving a serious question to be tried, the inadequacy of
damages, and a favorable balance of convenience.
4. Abuse and Undertakings: Because it is entirely one-sided,
an interim injunction is highly susceptible to abuse,
prompting courts to grant it very sparingly and strictly
demand
an undertaking as to damages. An interlocutory injunction

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 is much less prone to such abuse due to the observance of
fair hearing, though the court still generally requires an
undertaking to protect the respondent against wrongful
restraint
The Manner of applying for the injunction.
Injunctions without Notice/ ex parte Injunctions
An Ex parte injunction is classified based on the method/manner
of application. It is an injunction applied for without putting the
other party on Notice.
When can you file for Exparte
In cases where there is a possibility of immediate property
destruction or extreme violence, a party can approach the
court for an emergency protective order or restraining order,
custody order, or an order preventing someone from destroying
property. There are other situations where emergency orders
are appropriate, but these above stated legal situation are the
most common.
Nnaemeka Agu JSC in Kotoye v CBN.
The judge will hold a full hearing within a short period of time.
the order is only temporary
Re N (No.2),[1967]
an injunction was granted without notice by a High Court judge
at his residence on a Sunday, to prevent the applicant’s
husband from taking their children to Australia.
Seven up bottling company v. Abiola 1995
ABUSE OR MISUSE OF EX-PARTE INTERIM INJUNCTION
The grant of an ex-parte interim injunction is an extraordinary
jurisdiction requiring the
court to act judiciously and judicially. It is a useful tool for
seasoned practitioners and

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 judges but is easily abused because it is made behind the
opponent’s back.
Examples of abuse:
1. A court refuses an ex-parte order; counsel files a
similar suit in another state without disclosing the
refusal and obtains the order, as seen in National Bank
of Nig. v. Yinka commercial ent. ltd
2. A defendant, after being served, files a similar suit and
obtains a counter ex-parte order on the same subject
matter, as seen in Panaf Investment v. Golders ltd.
3. Restraining a Presidential Election despite huge
preparation costs when the defendant was available in
the jurisdiction, as seen in Abimbola Davies v. NEC
4. .Directing reinstatement of terminated employees in a
private company via ex-parte order.
5. Adjournments: ruling fixed but adjourned for weeks or
sine die after defendant files a motion to arrest the
ruling, as seen in Morgan Airlines v. Transnet Ltd
Examples of Interlocutory injunctions
Mareva
What is it?
Taking its name from Mareva Compania Naviera SA v
International Bulkcarriers SA, although the first reported
exercise of this novel jurisdiction occurred in Nippon Yusen
Kaisha v Karageorgis. It is now called a freezing injunction.
It was described by Lord Denning MR as
“the greatest piece of judicial law reform in my time.”
Lord Diplock in The Siskina
A Mareva injunction is interlocutory, not final; it is
ancillary to a substantive pecuniary claim for debt or

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 damages; it is designed to prevent the judgment … for a
sum of money being a mere ‘brutum fulmen.
When will it be granted?
Pre Trial: The usual purpose of a freezing injunction is to
prevent the dissipation or removal of assets before trial, so
that if the claimant succeeds in the action, there will be
property of the defendant available to satisfy the judgment.
During trial: it can also be an Interlocutory order
(via Motion on Notice) if the need arises after proceedings
have commenced and the other
party has been served
After Trial: It may also be granted after final judgment if the
claimant can show grounds for believing that the defendant
will dispose of his assets to avoid execution.
Notice
The freezing injunction is usually sought as an interim measure
and without notice: speed is of the essence
The claimant must give an
undertaking in damages in case she should be unsuccessful at
the trial, and the defendant may apply within seven days of
service of the order on him for it to be discharged.
Guidelines for the Grant of the Injunction.
While the discretion of the court is not fettered by rigid rules,
Lord Denning MR suggested the following guidelines
a. the claimant must have a good arguable case.
b. where the injunction applies to goods, caution is
required to avoid bringing the defendant’s business to a
standstill
c. the court should favour the grant if it would be likely to
compel the defendant to provide security;

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 d. the claimant must make full and frank disclosure of all
material matters,
e. he should give particulars of his claim and its amount,
and (in an application without notice) he should fairly
state the points made against it by the defendant;
f. he must undertake in damages, giving security in
suitable cases, in case he is unsuccessful in the action.
g. Lord Denning added that the claimant had to establish
that there was a risk of the removal of assets from the
jurisdiction
Sotuminu v. Ocean Steamship (NIg) Ltd
The court established that to succeed, an Applicant must
strictly satisfy the following six conditions (failure on any
single condition means refusal):
1. Cause of Action: The applicant must have a valid cause
of action against the Defendant.
2. Real and Imminent Risk: There must be a clear danger
of the Defendant removing assets from the jurisdiction,
thereby rendering any future judgment nugatory
(worthless).
3. Full Disclosure: The applicant must fully disclose all
material facts, including any potential defenses the
Defendant has indicated in correspondence or
elsewhere.
4. Asset Particulars: The applicant must provide full
particulars of the assets located within the jurisdiction.
5. Balance of Convenience: This must weigh in favor of
the Applicant.
6. Undertaking as to Damages: The Applicant must be
prepared to give an undertaking to pay damages if the
injunction turns out to be unjustified.

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 What Properties and assets?
Exceptionally, the injunction may be made against all the
defendant’s assets; but usually a limit will be specified.
In rare cases it may be made in respect of a joint account,
but not assets of the defendant’s wife or another third
party,
save in aid of enforcement of a judgment.
An order made in relation to “his assets” does not include
those of which the defendant is legal owner, but which he
holds on trust for a third party.
The injunction may be granted to restrain a sale of assets at
an independently assessed price, although this will rarely
be done in the case of a transaction in good faith in the
ordinary course of business.
The injunction should rarely be granted where the
defendant is a bank, otherwise its business could be
irreparably harmed
Search Orders
What is it
This type of injunction is designed to secure that, pending trial,
the defendant does not dispose of any articles in his
possession which could be prejudicial at the trial.
subject matter
It is particularly useful to the victims of commercial
malpractice, such as breach of confidence, breach of
copyright and passing off.
It has also been used in the family context, as in
Emanuel v Emanuel
where a husband had been ordered in matrimonial
proceedings to transfer properties to his wife. He failed
to comply, and had sold a property and spent the

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 proceeds. An order was granted to allow the wife’s
solicitors to enter his home to inspect documents
relating to his finances.
Notice
It is essential that such an order be available without notice, so
that the defendant is not forewarned:
Rank Film Distributors Ltd v Video Information Centre [1982]
If the stable door cannot be bolted, the horse must be
secured. … If the horse is liable to be spirited away,
notice of an intention to secure the horse will defeat the
intention.”
The first reported decision was EMI Ltd v Pandit,
where an order was made without notice in a breach of
copyright action to enable the claimant to enter the defendant’s
premises to inspect, photograph and remove infringing articles.
The jurisdiction to make such an order was confirmed by the
Court of Appeal in Anton Piller KG v Manufacturing Processes
Ltd.
FACTS: The defendants had received confidential information
and plans concerning the claimant’s electrical equipment in
their capacity as the claimant’s selling agents in England. The
claimant had reason to believe that the defendants were selling
the information to competitors, but were unable to prove this
without access to documents situated on the defendants’
premises.
The Court of Appeal made an order without prior notice to the
defendants, requiring them to permit the claimant to enter their
premises and inspect documents relating to the equipment
when will it be made
It would only be made in exceptional circumstances, where it
was essential that the claimant should inspect the documents

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 to enable justice to be done between the parties, and there was
a danger that vital evidence would otherwise be destroyed
How does it work
Unlike a search warrant, the order does not authorise the
claimant to enter against the defendant’s will. But it does order
the defendant to permit the claimant to enter, so that, if the
defendant does not comply, not only does he commit a
contempt of court, but adverse inferences will be drawn
against him at the trial
Conditions
Ornold LJ in the case of Anton Piller laid down three conditions
which have been further stretched to six. The claimant must:
a. have an extremely strong prima facie case;
b. show actual or potential damage of a very serious nature;
c. have clear evidence that the defendant has incriminating
documents or things and a real possibility of their
destruction before an application with notice can be made
d. Show that intervention is absolutely necessary for justice to
be done between the parties
e. inspect in a manner that does no real harm to the defendant
or their case
f. provide an undertaking as to damages
Akuma Industries v. Ayman Enterprises Ltd
The Appellants manufactured 'Queen' hair products. The
Respondent launched 'New Queen'. Despite the Respondent
previously apologizing for the infringement, they secretly
obtained an Anton Piller order that comprehensively seized the
Appellants' goods and disrupted their business.
The Court of Appeal set the order aside and critisised the "no
holds barred" orders that completely demobilize a factory
based merely on one party's affidavit.

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 Operation in personam

Kotoye v. Cbn
Okongo
Ogonna v. Nurtw 1993
Injunction

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