CHAPTER ONE; GENERAL INTRODUCTION
Background of the study
The process of instituting an action in court in order to redress a wrong takes considerable time. Owing to the peculiar state of affairs in Nigeria, calling the court into action to determine the respective rights of parties consumes considerable time with possible harm to the subject matter of the suit. The subject matter in law 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.
The history of injunction could be traced to the later part of the 16th century when quarrel between common and Chancery over the power of the Chancery to issue injunction in the cases before it became manifest1. Justice Coke was the Chief Judge of the Common Law Counts while Lord Ellesmere was the Lord Chancellor in Chancery. Chancery‟s jurisdiction was challenged by Justice Coke, notably its power to grant common injunction restraining the enforcement of judgment decided by the Common law courts. Justice Coke threatened to issue a writ of prohibition against Chancery‟s interference with judgments/decisions of the Common law courts by its issuance of common injunction2.
Nevertheless, Lord Ellesmere of the Chancery division
pronounced that Chancery had the power to grant common injunction against the
judgments of the Common law courts that were oppressive or without conscience.
The conflict was settled in the case of Earl of Oxford which was decided in
favour of the Chancery that it can give an injunction against the judgments of
the Common law courts.
The ruling in the case Earl of Oxford was also to the effect that equity should prevail whenever there is a conflict between it and common law. However, after series of deliberations to gain autonomy for the Chancery by Lords Ellesmere and others, Common Law Procedure Acts of 1854 and 1860 also empowered the Common Law Counts to apply the rules of equity to cases before them, regardless of those rules being in disagreement with the established common law rules. This was done to solve the incidence of double litigation in respect of the same cause of action3. This is in order to save litigants time and expenses in the cause of litigation. In another vain, Chancery courts were empowered to decide all actions of common law without making any reference to the Common Law court. By Chancery Amendment Act of 1852, limited power was also given to Chancery in some cases such as awarding damages in addition or in lieu of injunction and breach of contract.
Nonetheless, the entire reform was represented by the Judicature Acts of 1873 to 1875 and the Administration of Justice Act of 1880. All existing superior courts were abolished by the above mentioned Acts and in their place Supreme Court of Judicature consisting of High Court of Justice made up of Queen‟s Bench, Chancery Division and Family Division consisting private division and admiralty were created.
Moreover, so many legislations were made both in England and Nigeria to support the application of the principles of equity. In Nigeria for instance, various states of the Federation have High Court Laws that provide for the application of equity in the states of the nation. A clear example of these laws is section 28 High Court Law of Kaduna State4, which is of the effect that, the doctrines of equity shall in so far as they relate to any matter in respect of which the state is for the time being, competent to make laws, be enforced within the jurisdiction of the court. More so, section 17 (a), (b) and (c) of the Supreme Court Act5, empowered courts to grant in every matter brought or pending before it, either absolutely or in such terms and conditions as the court deems just, all such remedies whatsoever as any of the parties thereto may appear to be entitled in respect of any legal or equitable claim properly brought forward. The exercise of this discretion must however be consistent with what is reasonable and just in the circumstance6. Order 6 Rule 67 also gives the Court of Appeal the power to grant injunctions. This means that the court ought to be satisfied that the injunction which is to be granted is, as to its terms and circumstances, affecting both parties are reasonable and just8.
The equitable remedy of injunction is a discretionary process of preventive and remedial justice, in which a person is required to refrain from doing a specified meditated wrong not amounting to a crime. In Salami v. Yahyah9, the court stated that “the award of an injunctive order is discretionary. Thus in all exercise of judicial discretion, unless it is shown that the lower court exercised its discretion wrongly and arbitrarily, it shall not be interfered with by an Appeal Court”. An injunction is a preservative relief designed to maintain the status quo between parties pending the final determination of the suit or pending a certain date. It is an equitable remedy by which the court orders a person to refrain from a particular activity or conduct.
An injunction is ordinarily and properly elicited from proceedings in courts. The main feature of injunction is the maintenance of the res or status quo that is the subject matter of the dispute or litigation. Injunctions are traditionally granted when a wrong cannot be effectively remedied by an award of money damages. It is intended to make whole again someone whose right has been violated.
The equitable remedy of injunction has been moulded to fit various purposes and as a result diverse classifications have been developed according to the nature of the order given by the court. They can prohibit future violations of the law, such as trespass to real property, infringement of a patent, or the violation of a constitutional right or they can require the defendant to repair past violations of the law or applicant‟s right.
There are different types of injunctions that may be applied for by an applicant depending on the circumstances of the case. An injunction could be interim, interlocutory or perpetual. An interlocutory injunction is granted to maintain the status quo between the parties pending the final determination of the dispute. It lasts till the end of the case to give way to perpetual injunction which is granted at the end of the trial. It settles once and for all the interest of the parties in relation to the subject matter of the dispute. However, other specialised forms of injunctions are: Anton piller orders, Mareva injunctions and Quia timet and they are in the form of interim orders. It should be noted here that this work, only cantered on interim and interlocutory injunctions.