An injunction is an equitable remedy granted by the court compelling a party to do or to refrain from doing an act. The order is mandatory or positive where it compels a party to do an act; it is prohibitory or restrictive where it prohibits the doing of an act.
Types of injunction
- Mandatory and Prohibitory Injunction
- Perpetual Injunction
- Interlocutory Injunction
- Quia Timet Injunction
- Exparte Injunction
Mandatory and Prohibitory
The essence of mandatory injunction is to compel a party to restore things to the condition in which they were, at the time the plaintiffs complaint was made or before the defendant committed the act complained of. See the case of Smith V. Smith (1875) L.R 20 Eq. 500, Isenberg V. East India House Co. (1863) 3 D.J & S 263 at 272.32.
For reasons of history and convenience, judicial attitude tends to favour the grant of prohibitory rather than mandatory injunction. For a long period, most injunctions were (and still are) prohibitory both in form and substance. The reason being that the reemdy of injunction is essentially restrictive.
Secondly, it was much easier to restrain a party from doing an act than to compel him to perform a positive act, since the court of equity will not grant a remedy, the enforcement of which will require the supervision of the court.
There is no longer any distinction in principle between granting a prohibitory injunction restraining a party from interfering with a right and granting a mandatory injunction in a positive term, compelling a party to grant a right. See Davies V. Gas Light & Coke Co. (1909) 1 Ch. 708. Prohibitory injunction is also granted on constitutional matters.
Perpetual injunction is based on the final determination of the rights of the parties, and is intended permanently to prevent infringement of a right, and obviate the necessity of bringing an action after every such infringement. See the case of Odunuwe V. Uduaga (1952) 14 W.A.C.A. 187 at 188. The order does not necessarily last forever contrary to what the description or terminology of the order implies.
It however, settles permanently, the existing dispute between the parties, being an order made only after both parties to the case have been heard and the merits and demerits of the disputants considered. The order is appropriate and usually made to prevent a continuous infringement of a right and the continuous injury that flows from such infringement. See Ojiako V. Ogueze (1962) 1 All NLR 58.
Furthermore, a perpetual injunction is granted in order to prevent multiplicity of suits. The court prima facie would however, not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. See Martius Properties Ltd V. Albert Anthony Coury (Supra). This is the very first principle of injunction law. The award of the remedy is discretionary, though this discretion is not to be arbitrarily exercised. See the case of Adeyeye V. Adewoyin (1960) 5 F.S. C. 146.
An application for an interlocutory injunction postulates that the applicants has a right, the violation of which he seeks to prevent and in order to do so effectively to ensure at that stage of the proceedings that the subject-matter of the right be maintained in status quo. Therefore, an interlocutory injunction is that kind of equitable remedy, which is only granted at the discretion of the court in order to nullify an actual or anticipated alteration of the ‘status quo’ or to prevent the commission of some act or the taking of some steps which will be impossible to reverse if done or taken.
Interlocutory injunction is granted before the final determination of the substantive issue between the parties. When granted, the effect may be mandatory or prohibitory. See the case of Duvin Pharmaceutical and Chemists Co. Ltd V. Beneks Pharmaceuticals and Cosmetics Ltd & 2 Ors (2008) 1-2 SC 68. Where the Supreme Court held that issuance of Interlocutory Order is at the discretion of the court which discretion must be exercised judicially and judiciously and once an appellate court is satisfied that this principle of law has been met, it will hesitate to interfere with the exercise of such discretion by the trial court.
In Akinpelu V. Adegbore & 3 Ors (2008) 4-5 S.C (pt. 11)p. 75, the Supreme Court, held that:
“…an application for an interlocutory injunction is procedurally between interim injunction and perpetual injunction and is usually granted by the court pending the determination of the case. For such an application to succeed the applicant must show as decided by the Supreme Court in Kotoye V. Central Bank of Nigeria (1989) 2 S.C. (pt. 1) 1, (1989)1 NWLR (pt.98) 419 that;
- There is a serious issue to be tried and that the applicant has a real possibility, not probability of success at the trial;
- The balance of convenience is on the applicants side;
- Damages cannot be an adequate compensation;
- The applicant’s conduct is not reprehensible e.g that he is not guilty of delay;
- that the applicant has given satisfactory undertaking as to damages save in recognized exceptions.
This is a kind of injunction sought by a person to restrain the doing of an apprehended mischief. Unlike perpetual and interlocutory injunctions which are sought to restrain infringement or alleged infringement of rights, a quia timet injunction is sought before the mischief is done.
Thus, the exercise of the equitable injunction is predicated on the fact that a person is entitled to take action quia timet before he is actually injured. See the case of Niger Chemists Ltd V. Nigeria Chemists Ltd (1961) 1 All NLR 171; See also James L.J. in Hendricks V. Montagu (1881) 17 Ch.D638, 65 where he said “No doubt the application is an application quia timet, that is to say, it is to prevent something…which is being threatened and intended – to prevent something which the defendant is threatening and intending to do”
Because of the drastice effect of injunction in general, and the fact that quia timet injunction is in particular, meant to restrain an act that has not been done, courts are always wary and reluctant to grant quia timet injunction. See Crowder V. Tinkler (1816) 19 Ves 617;
Normally, an applicant for an injunction must serve upon the defendant, a notice of the motion; this is to avail the defendant an opportunity of preparing his defense and of being heard. But in certain cases, because of the urgency of the matter, which require speedy procedure an ex parte injunction (that is an injunction that is granted before the defendant has had time or opportunity to defend or oppose the application and or before the notice of the motion is served upon the defendant) may be granted. This type of injunction is granted for a very short period because it is granted solely on the evidence produced by the applicant. See In Re: F.R.A. Williams (1962) 1 All NLR 324. The defendant is, however expected to be served before the next motion day when he would be expected to make a case for the discontinuance of the injunction before the trial of the substantive action. See the case of Group Danone & Anor. V. Volvic (Nig) Ltd (2008) 3-4 SC.