OKEY WALI ESQ & ORS v. SETH O. AMAEFULE ESQ. & ORS
(2014)LCN/6844(CA)
RATIO
WHAT THE BALANCE OF CONVENIENCE ENTAILS IN GRANTING AN INTERLOCUTORY INJUNCTION
In addition, the court below relied on the hardship the respondents may suffer if the order for interlocutory injunction is not granted. Again, hardship to either side of the contest is not the yardstick for granting or withholding the discretionary equitable remedy of interlocutory injunction. Balance of convenience is the answer or test. And, balance of convenience is measured by whether damages in form of monetary value will adequately compensate in the circumstance, regardless of whether damages are sought in the substantive suit. The position is best put in the Supreme Court case Orji v. Zaria Industries Ltd. and Anor. (supra) at 139 as follows:- “The next point to be decided is that of balance of convenience. The governing principle in considering this point is whether, in case the appellant succeeds in his claim, he could not be adequately compensated by award of damages against the respondents and that the defendant are financially in a position to pay the damages awarded.
See Saraki v. Kotoye (1990) 4 N.W.L.R (Pt.143) 144 in which Obaseki J.S.C. referred with approval and cited on excerpt from the famous case of American Cyanamid Co. v. Ethicon Ltd. (1975) AC 396 at 408 wherein Diplock L.J. state the principles as follows –
‘…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 a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and time of the trial. If damages in the measure recoverable at common law would be adequate and the defendant would be in a financial position to pay them, however strong the plaintiff’s claim appeared to be at the trial, no interlocutory injunction should normally be granted”. (Italics supplied for emphasis). Per JOSEPH SHAGBAOR IKYEGH, J.C.A
