CIRCUMSTANCES UNDER WHICH A DEFENDANT CAN BE GRANTED AN

INJUNCTION AGAINST THE PLAINTIFF IN A CASE

WRITTEN BY A.O. IMIETE
ABSTRACT
Injunction serves as an order of equitable nature
restraining the person to whom it is directed from
performing a specified act or in certain exceptional
circumstances cases requiring him to perform a specified
act1. Injunctions are judicial remedy by which a person is
ordered to refrain from doing or to do a particular act or
thing. In the former case it is called a restrictive and
prohibitory injunction and in the latter a mandatory or
positive injunction. This work examines the basis and
circumstances under which a defendant can be granted
injunction generally, whether an interlocutory or interim
injunction, although most of the applications for grant of
injunction are made by the plaintiff. Before looking at
those circumstances under which the defendant can be
granted an injunction in a case against the plaintiff, it will
be necessary to consider the legal meaning of an
injunction, types, the conditions to be met by any of the
party before an injunction can be granted by the Nigerian
courts, the reasons for granting such an injunction and
finally, the work is concluded with a succinct summary and
recommendation.

INTRODUCTION
In legal history, the remedy of injunction was one of the foundations of the
jurisdiction in equity exercised by the Court of Chancery and the Court of Exchequer in England .The equitable jurisdiction of the Court of Ex-chequer in this
regard was abolished by the Court of Chancery Act 1841 and by so doing, placing
injunctions within the exclusive province of chancerys equitable jurisdictions. This
was the situation for almost 13 years. By 1854, however, the Common Law
procedure Act of that year, gave to Common Law Courts a power to grant
injunctions in certain cases. Eventually, when the fusion of law and equity was
effected by the Judicature Act 1873.The jurisdiction to grant injunction in all cases in
1 Halsburys Law of England(3rded) Vol. 21 p 343; PH Pettit, Equity and the law of
Trust(9th)p540

which court of equity or common law could formally grant that relief. Injunction was
introduced into Nigeria legal system through local legislation 2. Ordinance introduced
inter alia the doctrines of equity of which injunction are a part. The Judicature Acts 3
provide that an injunction by interlocutory order may be granted in all cases in
which it appears to the court to be just or convenient that such an order be made
and that any such order should be made unconditionally or upon such terms and
conditions as the court shall think just. Similar statutory provisions are contained in
the Nigerian legislation specifically Order 20 rule 9 High Court (Civil Procedure)
Rules4

THE MEANING OF AN INJUNCTION

Injunction is define by the blacks law dictionary5 with pronunciation as an order
commanding or preventing an action. In a general sense today, every order of a court which
commands or forbids is an injunction, but in it accepted legal sense, an injunction is a judicial
process or mandate operating inparsonam by which upon certain established principles of equity,
a party is required to do or refrain from doing a particular thing. An injunction has also been
defined as a writ framed according to the courts regards as essential to justice or restraining an
act which it esteems contrary to equity and good conscience, it is a remedial writ which courts
issue for the purpose of enforcing their equitable jurisdiction; and a writ issuing by the order and
under the seal of court sitting in Equity6. KARIBI WHYTE, J.S.C in Babatunde ADENUGA & 5
OTHERS. V. K ODUMEWU & OTHERS10, defined injunction thus

2 Jegede, Principles of Equity (1981)pg 1.

3 Supreme Court of Judicature(Consolidated Act 1925) (1873-1925)
4 High Court Law, Cap. 44 Laws of Ogun State (1978)
5 Bryan .A.Garner 9th ed (2009) West Thomas Business Reuters.
6 Howard C. Joyce, A Treatise on the Law Relating to Injunction (quoted in Blacks
Law Dictionary 9th ed)pg.855

...An equitable order restraining the person to whom it is directed from doing
the things specified in order or requiring in exceptional situations the
performance of a specified act. A claim for an injunction is a claim in equity.
While quoting this definition by KARIBI-WHYTE J.S.C, MUSDAPHER J.C.A (as he
then was) in ANNE KADIYA & 2 OTHERS V. JIBO KADIYA & 2 OTHERS, stressed that
an injunction is generally granted to protect a legal right which is in existence with the object of
keeping matters in status quo until the question at issue between the parties is determined. The
question as to what principles govern a court in the grant of an injunction was answered by
Adefarasin J. in MARTINS PROPERTY LTD V ALBERT COURY, as follows:
the principle under which the court acts with regards to injunctions is that the
court would grant an injunction for protection of right or prevention of an injury
according to legal principles. The court, prima facie, would however, not grant an
injunction to restrain an actionable wrong for which damages are the proper
remedy. The court interferes by way of injunction to prevent any injury in respect
of which there is a legal remedy, if the injury is irreparable or if is continuous.
Moreover, the court would grant an injunction even where no damage has been
caused. There must however, be a violation of a legal right in a substantial way.
An irreparable injury in the sense that an injury that cannot be adequately measured,
compensated by money and is therefore often considered remedies by injunction or nonpecuniary injury. The supreme court in JOHN HOLT NIGERIA LTD V HOLTS AFRICAN
WORKERS UNION OF NIGERIA AND CAMEROUN7 emphasized the need to keep the
principle when the court said: the principles upon which the court acts in granting interlocutory
injunctions, to our mind must be strictly observed and, of course, it is impossible to lay down any
general rule by which the discretion of the court ought in all cases, to be regulated but it must be
borne in the mind that interlocutory injunction are not granted as of course.
While the grant of injunction is discretionary, the court will not grant it, if it not asked for 8 or
grant one which is wider than what is sought by the plaintiff. 9 But it can be granted if it is

7 (1963)1 ALL NLR 379 at p.383;

incidentally necessary to protect legal right. 10In ADAM V DUKE11 the plaintiff had sought a
declaration that he and members of the Etum Effion House were under no obligation to serve the
defendant in his capacity as Etubom of the Duke house and claim an injunction to restrain the
defendant from attempting to enforce such an alleged obligation or liability. Webber, J said the
claim for an injunction must fail. There is nothing to restrain nor does any reason exist for an
injunction. The court will not restrain the defendant from making assertions. There must be
violation, a real substantial violation of some right before court grants an injunction. An
injunction will not be granted to restrain a wife from bearing her husbands name even after
divorce.12 Furthermore, an injunction will not be granted where the injury is trial. 13 In SAVAGE
V AKINRINADE14, an injunction was refused on the ground that it would cause greater
hardship. In that case, the plaintiffs right had been obstructed by the erection of a multi storey
building by the defendants and had sought an injunction that the offending building be removed.
Omolu J; in refusing to grant the injunction, said he appreciated the importance of the plaintiff
but he must also consider the value of a new storey building containing fourteen rooms and the
hardship which an order for removal would cause, not only to the defendants but to other tenants
now living there. This demonstrates that equitable remedies may not be granted where third
interests are adversely affected.15 The operation of injunction illustrates the equitable maxim,
8 Ogbe v Esi (1943)9 WACA 76, Ogboni v Ojah (1996)2 SCNJ 140; Victor NdomaEgba v Nname Chukwukeluo & ors (2004)2SC 117
9 Kotoye v C.B.N (1989)1 NWLR 419
10 Williams v Snowdown (1880)AN 124
11 (1927)8 NLR 88
12 PH Pettit, Equity and the law of Trust(9th)p540
13 Behrens V Richards (1905)2 Ch. 614
14 (1964)LLR 238
15 Penn v Lord Baltimore(1750)1 vessen 444

equity acts in persnam. Equity will not allow an act, which is in inconsumable, morally
reprehensible and totally contrary to its notion of equity and justice to be done just because the
act which is done is outside its jurisdiction provided the person doing the act is within its
jurisdiction and can be served with court process. Equity proceeds on the basis that the order of
injunction is directed against the person to be restrained and it is an order impersonam.
Injunction may be divided into perpetual and interlocutory. A perpetual injunction is only granted
after a judicial decision when the plaintiff has established his right in law and the fact that the
defendant infringed that right or is about to do so. The effect of the injunction may not
necessarily last forever; it depends on the nature of the right, the protection of which is sought.
An interlocutory injunction on the other hand, is granted before the final determination of the
issues between the plaintiff and the defendant, where the plaintiff reasonably fears that the
irreparable damage may be done to him before the final determination of the issues, unless the
defendant is restrained of the act complained of. The essence of interlocutory injunction is to
maintain the status quo of the parties pending the final determination of the issues. Ex-parte
injunction can be granted where the plaintiff requires urgent and immediate temporary relief and
cannot wait till the next motion day. He can apply for an injunction which will last, which valid
until the next motion day, by which time notice could have be served on the defendant. He (the
defendant) will then have a chance of opposing the plaintiffs application for interlocutory
injunction. The phrase ex parte means that the court has not had the opportunity of hearing the
other side.

TYPES OF INJUNCTIONS
In other to know which type of an injunction an applicant is seeking for, there is need to state
here briefly the different types of injunction, so that the defendant will know which one is
appropriate in any case. It is designed to examine the various types of injunction available in
Nigeria and the purpose they serve.

These injunction are as follows: ranging from ex-parte,

interim, interlocutory, perpetual, mandatory, mareva to anton piller injunction.

EX-PARTE INJUNCTION

In the annals of Anglo-Nigeria common law, certain principles are fundamental. One of
such fundamental principal is that no one should be condemned unheard. AUDI
ALTERAM PARTEM meaning LET THE OTHER PARTY BE HEARD But in both criminal
and civil proceedings there are certain steps to be taken which is incidental or preliminary to the
substantive case. Such steps include motion for direction, interim or interlocutory injunction. The
time available for taking the steps may be too short or an emergency situation may have arisen. It
therefore becomes necessary to take quick action in order to seek remedy for or arrest the
situation. This is the basis of the jurisdiction of Ex-parte order of interim injunction. In
ODUTOLU V. LAWAL16, the appellants/applicants brought an application for extension of time
to apply to vacate the interim order of injunction made against them by the trial court and an
order vacating the said order, after a similar application had been refused by the trial court. The
court of appeal, unanimously granted the application. Per Adekeye, J.C.A stated as follows: An
interim order pronounced ex-parte is first and foremost brought by an who

is usually the

plaintiff for no permanent injunction i.e without notice to the other party. It is the exercise of
very extra-ordinary jurisdiction invoke by the courts in the event of real urgency hence it is
regarded as one of the inherent powers of the court of law for the administration of justice. The
main attribute of an Ex-parte injunction is that it is to be granted in circumstances of real
urgency. In SECONDI BOGBAN AND 2 OTHERS V.MOTOR DIWLINE AND 2
OTHERS17, the court explained the nature of urgency needed to ground the invocation of the
Ex-parte order of interim injunction. In that case, appellants challenged the propriety of granting
an interim order of injunction in the circumstances of the suit and the refusal to discharge the
order by the trial high court when no urgency was shown by way of affidavit as to urgency and
no undertaking as to damages was extracted from the respondents when the order was granted. In
allowing the appeal, the Court of Appeal per Abba Aji, J.C.A held inter alia. The basis therefore
for granting an ex-parte order of injunction is the exercise of special circumstances, invariably,
all prevailing real urgency which requires that the order must be made, otherwise an irretrievable
16 (2003)1NWLR (pt. 749) 633
17

17 (2005)16 NWLR (pt. 951) 274

harm or injury would be occasioned to the prejudice of the applicant. So in a situation of real
urgency, where the res may be irreversibly destroyed or damaged before service of a motion
paper can be effected, the law allows a motion ex-parte for interim order of injunction to be filed.
INTERIM/INTERLOCUTORY INJUNCTION
If there was an area of law which created perennial problem for lawyers and judges, it was the
practice and procedure for the grant of interim and interlocutory injunctions. This was due to
great deal of confusion and conflicting principles adopted by courts in deciding whether or not to
grant interim or interlocutory injunction pending the determination of the substantive suit. It was
held that the applicant a probability of a strong prima facie case entitling to the right violation of
which he complains. Some other time, the plaintiff was required to show at least that he was
likely to succeed at the trial. Again there was the principle that it was not necessary that a
plaintiff should make out a case as he would do on merits but that he should establish that there
was a substantial issue to be tried at the hearing. In the confused arena, the court usually looks at
the conflicting affidavits and resolve issues which should have been decided ultimately at the
trial.
MANDATORY INJUNCTION
A mandatory injunction or positive injunction is an order of a court requiring a party to do a
specific act or action. It is a direct opposite of prohibitory order of injunction which is made to
preserve the res pending the determination of the substantive claim or to stop the defendant from
repeating the wrongful conduct which is the subject matter of the complaint. In most cases,
mandatory injunction to undo what has already been done. Accordingly mandatory injunction is
also referred to as the restoratory injunction. Even where damage has not occurred, a mandatory
injunction invariably involves the doing of an act which will involve the defendant. 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-parte. Originally, all injunctions were negative in
form and restrictive in content. Mandatory injunctions were not issued until the late 19th century.
The principles governing the granting of mandatory injunction are different from those
applicable to the granting of prohibitory interlocutory injunction. The distinction between orders
of mandatory injunction a prohibitory injunction was lucidly stated by the Court of Appeal in

MODILE & ANOR V. THE GOVERNOR OF LAGOS STATE & ORS 18. In dismissing the
appeal the court of appeal held inter alia per Chukwuma Eneh J.C.A 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. It should be noted
however that a mandatory injunction is essentially an equitable relief, it is
therefore discretionary and when the infringement complained of by the
plaintiff can be remedied by any means other than the order, the court
should apply that other means.
MAREVA INJUNCTION
Mareva injunction came about as a remedy against a particular evil and abuse of the defendant
who causes his assets to be removed from jurisdiction or disposes of same before judgment.
Explaining the basis of the mareva injunction jurisdiction, Golf, j in the case A. v. C 19 of
pertinently stated as follows: The principle underlying the jurisdiction is the prevention of an
abuse, the abuse of a foreign residence causing assets to be removed from jurisdiction in order to
avoid the risk of having to satisfy any judgment which may be entered against him pending
proceedings in this country. It must be stated that mareva injunction will be granted not only in
cases where the defendant intends to remove his assets from the jurisdiction of the court but also
in cases where the granting of a mareva injunction will provide some of security to the plaintiff
and whenever it is just or convenient to do so. According to the Supreme Court in A.I.C v
NNPC20

18 (2004) 12 NWLR (PT 887)

19(1980) 2 ALL ER 347 AT 351
20

(1988) 2 ALL ER 77

the court has jurisdiction to grant a mareva injunction in favor of a creditor who has a right to be
paid the debt owing to him even before he has established his right by getting judgment for it, if
it appears that the debt is due and owing, and there is danger that the debtor may dispose of his
assets so as defeat the debt before judgment a mareva injunction operates to stop a
defendant against whom a plaintiff has a arguable claim from disposing of or dissipating his
assets pending the determination of the case or pending payments to the plaintiff. The injunction
can also be granted against anybody who is in possession of the defendants assets. In the instant
case, if the appellants had funds in the custody of the respondent, a mareva injunction was
grantable in its favor to restrain the respondent from disbursing the funds to Mannesmann.
However, there was no sound evidence that the appellant had any fund with the respondent. The
mareva injunction jurisdiction cannot be justified on the basis of the preservation of the res in
the case because in most cases the assets sought to be enjoined do not and cannot form the
subject matter of the substantive suit. Nigeria courts have accepted and adopted the MAREVA
INJUNCTION decisions of the English courts in both NIPPON NUSEN KAISHA V.
KARAGEORGIS57 AND MAREVA COMPANIES NAVIERA S.A V INTERNATIONAL
BULKEARRIERS S.A.
ANTON PILLER INJUNCTION
The law of injunction clearly experienced a remarkable revolution in English law in the year
1975. The year witnessed the evolution of the American Cyanamid principles in interlocutory
injunction; the mareva injunction and lastly the Anton Piller injunction. The Anton Piller
injunction received the warm embrace of English court because of the fact that it is founded on
justice. The Anton Piller injunction is related to mareva injunction treated in the last chapter, but
is nevertheless inherently and practically different. This specie of injunction is named after the
leading case of Anton Piller KG v Manufacturing Process LTD63, its forerunner is order 29 rule
2 of the rules of supreme court of England which merely allows the court upon an application
inter partes to authorize one party to enter upon premises. M,Lowned by another party and
inspect property being kept there. Because the jurisdiction provided by the rules is only
exercisable upon an application which is on notice to the other party there is real likelihood that
the defendant would have disposed of or otherwise destroyed the property or any infringing
article subject matter of the litigation alleged to be in his custody before the application was

heard and thus presenting a fait accompli to both the plaintiff and court. It must be realized that
the jurisdiction of the court to grant Anton Piller injunction poses a serious threat to the
defendants constitutionally guaranteed rights to privacy guaranteed by section 37 of the 1999.

PERPETUAL INJUNCTION
A perpetual injunction is generally a post trial relief. 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 place. It is directed
towards the final settlement and enforcement of the rights of the parties which are in dispute. The
distinction between different categories of injunction was beautifully illustrated by Niki Tobi,
JCA (as he then was) a highly gifted judge, in ADENIRAN V. ALAO 21 when he said: While a
court of law can grant an interim injunction ex-parte in exceptional cases of extreme urgency to
preserve the res or status quo, and while a court of law can also grant an interlocutory injunction
where the applicant inter alia shows the existence of a legal right and need to protect that right,
the relief of perpetual injunction, as the name itself implies is the largest of the three reliefs,..
Putting it in another language an interim injunction stop where an interlocutory injunction begins
and an interlocutory injunction stops where a perpetual injunction begins in perpetuity. I have
taken the trouble to draw the distinction to emphasize the nature and the almighty role perpetual
injunction plays in the judicial process. In my humble view, a court of law cannot grant a
perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on
speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his
case. Perpetual injunction before of its very nature of finality can only be granted if the plaintiff
has successfully proved his case on the balance of probability or the preponderance of evidence.
The aim is to protect an established right. A perpetual injunction is an ancillary relief. 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 granted. The court will not grant perpetual injunction unless
21 (1992)2 NWLR (Pt 223) P. 350 at 372

there is a specific relief endorsed on the plaintiffs writ or included in the statement of claim.
This is in accord with the well established principle that a court has no jurisdiction to grant a
party the relief which he has not claimed. However, when the intention is already apparent in the
nature of the case, the court may grant specific relief for same, such was the case in

CONDITIONS TO BE MET BY ANY OF THE PARTY BEFORE AN INJUNCTION CAN

BE GRANTED
As stated earlier the grant of an injunction is discretionary but this discretion must be
exercised in accordance with established principles. Previous before an injunction could be
granted, an applicant required to establish a prima facie case that his rights had been infringed,
that damages would not be an adequate remedy and that the balance of convenience favoured
him. This principle was firmly established by the House of Lord in J. T STRATFORD & SONS
LTD V. LINDLEY.39 and the principle was adopted by the Supreme Court in LADUNNI V.
KUKOYI& ORS.40 when Coker J. S. C said. 41
The principle seems to us to be clear and in short an interim injunction would
be granted to a party who shows that he has a prima facie case on a claim of right
or in other words that prima facie, the case he has made out is one which the
opposing party would be called upon to answer and that it is just and convenient
to the court to intervene and that unless the court so intervenes at that stage the
other partys action or conduct would irreparably alter the status quo or render
ineffective any subsequent decree of the court
Later, in the Globe Fishing Industries Ltd v. Coker, 42 Nnameka-Agu, J. S. C said.43
Formerly the court contended that an applicant for an order of interlocutory
injunction, in order to succeed, had made out a prima facie case 22 or a strong
22 Ladunni v, Kukoyi Ors. (1972) SC 33P37

prima facie case;23 or show a probability that the applicants are entitled to relief. 24
Later, an attempt was made to reconcile the apparently conflicting decisions by
holding that the need to show a probability of entitlement to relief or a strong
prima facie case applied only to the establishment of the applicants right
whereas to show a violation of it, the applicant needed only to show that he had
an arguable case to be tried.25As observed in KOTOYES case, all the conflicts
in the old cases were eventually laid to rest by the House of Lords in the case of
RE-AMERICAN CYANAMID. On the question whether a prima facie case
applied only to establishment by the plaintiff of his right and the lesser burden of
showing an arguable case applied to the alleged violation of that right by the
defendant, the House of Lords in AMERICAN CYNAMID CO V. ETHICORN
LTD. 44 said:
An attempt had been made to reconcile these apparently differing approaches to
the exercise of the discretion by holding that the need to show a probability or a
strong prima facie case applied only to the establishment by the plaintiff of his
right, and that the lesser burden of showing an arguable case to be tried applied
to the alleged violation of right The suggested distinction between what he
must show as respects its violation did not long survive.

23 Harman pictures N.V v Osborne I WLR 723; Smith v, Grigg Ltd. (1924) 1 KB 655
24 Preston v. Luck (1884) 27 Ch D 497 at p 506.
25 Donmar Productions Ltd v. Bat (1967) 1 WLR 740, P HUBBARD V. Vosper (1977) 2Q. B

84.

Since this is an exercise of discretion, it ought not to be fettered in the manner being
advocated. The House of Lords

45

rejected the use of such expressions as a probability a prima

facie case or a strong prima facie case in the exercise of a discretionary power to grant an
injunction. Lord Diplock stated the principles governing the grant of an injunction as follow
When an application for an interlocutory injunction to restrain
a defendant from doing acts alleged to be in violation of the
plaintiffs legal right is made on contested facts, the decision
whether or not to grant an interlocutory injunction has to be
take at a time when ex hypothesis the existence of the right or
the violation of it or both is uncertain and will remain uncertain
until final judgment is given in the action. It was to mitigate the
risk of in-justice to the plaintiff during the period, before that
uncertainty could be resolved that the practice arose of granting
him relief by way of interlocutory injunction; but instead the
court held

47

that the applicant only needed to satisfy the court

that his claim is not frivolous or vexatious; in other words, that

there is a serious question to be tried. This is because the
applicant is neither expected at that stage to establish his case,
nor is the court required to go into the merit at that preliminary
stage. The court has therefore moved away from the prima
facie case situation to a position that an applicant is only
required to show that there is a serious question to be tried

This is now the position in Nigeria as the Supreme Court said in GLOBE FISHING
INDUSTRIES LTD v. COKER 48
In point of fact the case of Cynamid. V.Ethicon Ltd ( supra)
was cited with approval by this court in the case of Obeya
Memorial Hospital v. Attorney- General of the Federation and
Anor (1987) 3 NMLR ( part 60 ) 325 at p 337. This should be a
final signal that even in his country, the old order has changed,
yielding place to the new. This is as it should be
This modern approach requires the applicant for injunction to show that there is a serious question to
be tried, that compensation will not be an adequate remedy for temporary inconvenience and that the
balance of convenience is in his favour. As indicated earlier the applicant must show that there is a
serious question t to be tried. He is required to establish facts that will entitle him judgment at this
preliminary stage of trial26if only to convince the court there is a serious issue to be tried. It has been
suggested that the facts that affidavits conflict in an application for an injunction supports rather than
derogate from the facts that there are substantial issues to be tried. 27 The applicant after establishing that
there is a serious question to be tried at the trial he must then show that damages will not be adequate to
compensate him for loss he would suffer if he is not granted an injunction to restrain the respondent. 28
Lord Diplock said:29inter alia
26 Oyeyemi v Irewole Local Government Area(1993)1NWLR (Pt.270)462
27 Afe Babalola Injunctions and the enforcement of court judgment.
28 American Cyanamid V Ethnicon (1992)2 NWLR (pt 229) 315
29 Ibid.

the governing principle is that the court should first consider whether if the plaintiff were to
succeed at the trial in establishing his right to permanent injunction he would be adequately
compensated by an award of damages for loss he would have sustained as a result of the
defendants continuing to do what was sought to be enjoined between the time of the application
and the time of the trial. If the damages in the measure recoverable at common law would be
adequate remedy and the defendant would be financial position to pay them, an interlocutory
injunction should normally be granted, however strong the plaintiffs claim appeared to be at that
stage. If on the other hand, damages would not provide an adequate remedy for the plaintiff in
the event of his succeeding at the trial court the court should then consider whether on the
contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do
that which was sought to be enjoined, he would be adequately compensated under the plaintiffs
undertaking as to damage for loss he would have sustained by being prevented from doing so
between the time of the application trial and the time for trial. If damages in the measure
recoverable under such an undertaking would be an adequate remedy and the plaintiff would be
in financial position to pay them, there would be no reason on this ground to refuse an
injunction
The applicant is also required to show that the balance of convenience is on his side. But
this is required where there is a doubt as to the adequacy of the respective remedies in damages
available to either party or both. The Supreme Courts view in KOTOYE V CBN 30 that the
balance of convenience must be considered after the applicant has established that there is a
serious issue to be tried is erroneous. This use of this phrase balance of convenience has been

30 (1989)NWLR(PT 98) 419

criticized on the ground that the business of the court is justice and not convenience 31 the
applicant must give an undertaking as to cost. 32 If the injunction is granted the applicant cannot
establish his case, he will be liable to the respondent for all the loss the respondent might have
suffered as a result of the injunction.
A party seeking the remedy of an injunction must come with clean hands because of the maxim
that he who comes to equity must come with clean hands 33 an applicant whose hands are not
clean is not entitled to the remedy of injunction. Thus in LILVINOFF V KENT34 a land lord
reserved the right of re-entry in a lease agreement in the event of breach of the covenant to pay
rent. The tenant had not breached the covenant to pay the rent but had breached other covenants
and had used the property for illegal purpose. The court refused a claim for an injunction on the
ground that the claimant has not come with clean hands. Thus, in the case of BLACKMORE V
GLAMORGANISHIRE CANAL NAVIGATION35 Lord Eldon said: many cases have
occurred in the which injunctions are applied for and are granted or refused, not upon ground of
the right of possession by the parties, but upon the ground of their conduct and the dealings
before they applied to the court for injunction to preserve and protect that right.
REASONS FOR GRANTING AN INJUNCTION TO AN APPLICANT

31 Ibid.
32 Sotimnu v Ocean Steamship Nigeria Ltd (1992) 5 NWLR (pt 239)
33 Equitable maxim
34 (1832)34 TLR 298
35 (1832) 1 MY K 154

The process of calling the court into action in most countries takes time and this is also
the same in Nigeria owing to the peculiar state of affairs in Nigeria. Calling the court into action
to determine the suit. In law, this subject matter is commonly referred to as the res. The res in
deserving circumstances would need to be preserved from waste, destruction or dissipation by
any of the parties. An exposition of the meaning of RES and the significance of its preservation
can be found in MUHAMMADU BUHARI AND 2 OTHERS V. CHIEF OLUSEGUN
OBASANJO AND 267 OTHERS.36 In that case per BELGORE, J.S.C (as he then was) held inter
alia on the meaning of RES; In general parlance res means thing in reference to a thing,
known or unknown. It also means affair, matter or circumstance in legal contest,res generally
refers to subject of the right Complained of by the applicant was made available to every branch
of the High Court Justice under the Act. The need for litigants to get justice before their rights are
been infringed upon by some people prompted the court to develop this injunction

CIRCUMSTANCES UNDER WHICH A DEFENDANT WILL BE GRANTED AN

INJUNCTION AGAINST A PLAINTIFF IN A CASE
It is a trite principle of law that the party who bring an action is describe in civil law as a
plaintiff. The Encarta dictionary37defines a plaintiff as somebody who brings a lawsuit against
somebody else in a civil court. However, the blacks law dictionary 38defines it as a party who
brings a civil suit in a court of law. He is the claimant, he complains of jury to a right which he
wants the court to remedy. On the other hand a defendant is defines as by the same dictionary 39 A
person sued in a civil proceeding or accused in a criminal proceeding. It therefore

follows from the above that it is the plaintiff who usually sought for an injunction. However, as
36 1 (2003)17 NWLR(PT. 850)587 S.C

37

Microsoft Encarta 2009. 1993-2008 Microsoft Corporation.

38 supra
39 Bryan A. Garner (2009) BLACKS LAW DICTIONARY 9THED WITH PRONUNCIATION
PG(853)

stated earlier that any of the party can apply for an injunction, it therefore means that a defendant
can apply for an injunction so long as he fulfill the requirements above the court will grant. In
the case of THE PRAYING BAN OF THE SACRED SOCIETY OF CHERUBIM AND
SERAPHIM CHURCH & 3 ORS V NATALIE ELLEN UDOKWU 40 the court was face with
issue whether a defendant can be granted an injunction against the plaintiff in a case, Justice
Kutigi of the Court of Appeal (as he then was) said: it is a settled law that a defendant may apply for an injunction
before judgment if the application as in this case, is connected with
the purpose of the plaintiffs action or if the relief seeks arises out
of the relief sought by the plaintiff..it is only when the relief sought
is unconnected with the plaintiffs case that the defendant is
required to file or give notice of his counter-claim first before
making his application..
In this case the court granted the defendant an interlocutory injunction because the defendants
application is connected with the land in dispute and the defendants relief arose out of the reliefs
sought by the plaintiff. A defendant may be granted interlocutory injunction by the court even
when he has not file a counter-claim or has not notice of counter-claim. In the cases where the
application is connected with the purpose of the plaintiffs action or the relief sought by the
defendant arises out of the relief sought by the plaintiff, the defendant may be granted an order of
injunction even though he has not file notice of counter-claim.41
To further emphasis the right of a defendant to be granted an injunction in some certain
circumstances the court in Re-Praying Band42per Justice Kutigi said that:
Courts in this country have over the years granted interlocutory
injunction to the defendants in appropriate cases as outline above. What of
40 (1991)3 NWLR (PT. 182) 716
41 Praying Band C & S V Udokwu (1991) 3 NWLR (PT. 182) 719 at 720
42 Ibid

the countless of land or property suits where defendants are in occupation?

SHOULD A DEFENDANT JUST FOLD HIS ARMS AND ALLOW A
PLAINTIFF TO TRESSPASS, DISTURB, RUIN OR DESTROY THE
PLACE MERELY BECAUSE HE HAS NO COUNTER-CLAIM
BEFORE THE COURT? MY ANSWER IS NEVRE! There is generally
no compulsion on the defendant to counter-claim where there is none. The
burden is on the plaintiff to prove his claims before the court
It is now clear that there are circumstances under which an injunction can be granted in favour of
the defendant and they are as follows:

Legally recognize principle of official & privilege communication: one clear instances
were a defendant may applies and obtain an injunction is the legally recognized principle
of official and privilege communication as expressly encapsulate in Section 191 & 243 of
the Evidence Act43where the evidence sought to be tended by the plaintiff is against or
will affect the security of the state adversely or public interest negatively. Thus in the case
of MORONU V BEN & 8 ORS44 the court upheld the counter-affidavit of the electoral
officer who apply that the prayer of the applicant for the production of certain electoral
material should not be granted and sought for an interlocutory injunction restraining the
plaintiff from getting such material on the basis of public interest. The court grants the
defendant the interlocutory injunction.

Where there is a counter-claim:- it is a trite law that a defendant can make application by
claims and counter-claims, defenses and replies, appeals and cross-appeals as exemplify
by the Cross-Rivers State High Court Civil-Procedure Rules45. Thus in the case of
PRAYING BAND C&S V UDOKWU46 the respondent as an administrix of the estate of

43 (2011) cap 222 LFRN

44 (1996)NWLR
45 (2008) ORDER 17, RULE 21
46 (1991) 3 NWLR (PT 182)717

her deceased husband instituted and action that led to his appeal against the appeallants as
defendants claiming a declaration that she is entitled to and possesd of all that parcel or
piece of landed property situated along Abakpa Nike road as plot C of Nnaji layout
Enugu, the sum of N10,000 being general damages for trespass and an injunction
restraining the appellants from entering the said land. At the commencement of hearing,
the appellants brought an application for order of an injunction to restrain the respondent.
The trial court grant the application on the condition that the defendant deposit a sum of
N10,000.00 in court, dissatisfied with the part of the ruling ordering them to deposit
N10,000.00 the defendants appeal. The plaintiff cross-appeal against the ruling
contending that the trial judge erred in the making an order of interlocutory injunction on
the application of the defendants who neither counter-claim nor gave notice of the same
whereas such an order though at the discretion of the court can only be granted on the
application of a plaintiff in a substantive suit. The Court of Appeal had to construe the
relevant provisions of order 21 rules 1 and 4 of the High Court Rules 47 dismissed the
appeal and upheld the judgment of the trial court. Similar decision was held in the case of
WILFRED PREREPIMODE & 3 ORS V SUOKUM MIEKORO48

Where there is a stay of execution of a court judgment:- under the relevant rules of the
High Court, Appeal Court and Supreme Court, a defendant can apply to the court that
gave the judgment or a court of superior jurisdiction for interlocutory injunction for stay
of execution of the judgment for the judgment obtain by the plaintiff pending the
determination of the application of the appeal. This was well illustrated in the case of
HALILU AKILU V FAWEHEMINI49

Where an irredeemable damages will be occasion to the defendant:- if the interlocutory

application is not granted to defendant it will occasion harm to his person, property,
business or profession. The court exercising it jurisdiction may vacate an interlocutory
application granted to the plaintiff were from the facts and circumstances of the case the

47 Cap 16 Laws of Eastern Nigeria 1963 as applicable in Anambra State.

48 (1992) 2 NWLR
49 (1996) 5NWLR (PT 258) 276

interest of the defendant will be more prejudice than that of the plaintiff, 50 In SAVAGE V
AKINRINADE51, an injunction was refused on the ground that it would cause greater
hardship. In that case, the plaintiffs right had been obstructed by the erection of a multi
storey building by the defendants and had sought an injunction that the offending
building be removed. Omolu J; in refusing to grant the injunction, said he appreciated the
importance of the plaintiff but he must also consider the value of a new storey building
containing fourteen rooms and the hardship which an order for removal would cause, not
only to the defendants but to other tenants now living there. This demonstrates that
equitable remedies may not be granted where third interests are adversely affected.

Also, were legally speaking, the plaintiff by fraudulent misrepresentation of facts to the
court obtain an injunction by error against the defendant even where he is at default, the
defendant will suffered more if the injunction application is granted can apply to the court
and obtain one.52

Where there is a garnishee order pending appeal on his account.53

CONCLUSION
It had been established through the cases that any party to a suit can bring an injunction as long
as is in line with the laid down rules. It now well settled in law that a defendant can bring an
application for an injunction and the court will grant it for his favour in certain or under certain
circumstances. While a court of law can grant an interim injunction ex-parte in exceptional cases
of extreme urgency to preserve the res or status quo, and while a court of law can also grant an
interlocutory injunction where the applicant inter alia shows the existence of a legal right and
need to protect that right, the relief of perpetual injunction, as the name itself implies is the
50 Htt//indiankanoon.org/doc/1097558 RAMAN V GOWDAPPA (1988)16
51 (1964)LLR 238
52 Nigerian Cement Company Limited v Nigerian Railway Corporation and Liver
Brothers Nig Ltd (1991) NWLR (PT 741)
53 Okechukwu V Okechukwu (1989) 3 NWLR (PT 108)P.234

largest of the three reliefs,.. Putting it in another language an interim injunction stop where an
interlocutory injunction begins and an interlocutory injunction stops where a perpetual injunction
begins in perpetuity. I have taken the trouble to draw the distinction to emphasize the nature and
the almighty role perpetual injunction plays in the judicial process. In my humble view, a court
of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction
cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff
seems to have proved his case. Perpetual injunction before of its very nature of finality can only
be granted if the plaintiff or defendant has successfully proved his case on the balance of
probability or the preponderance of evidence.

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Ese Malemi (2008), Law of Tort, Princeton Publishing Co., Ikeja, Lagos.
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Gardiner, D. (1991), Outline of Torts. Sydney, Butterworths.
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