HON. EMMA MOLOKWU & ORS v. PASTOR JOHN IRON OBIUDU & ORS
(2014) LCN/7035(CA)
RATIO
INTERLOCUTORY INJUNCTION: CONDITIONS TO GRANT OR REFUSE
I think it will be necessary before I proceed to consider the issues that arise for determination in this appeal to examine, briefly, the more important general principles of law that govern the grant or refusal of an interlocutory injunction. In the first place, an interlocutory injunction is granted before the trial of an action and its primary object is to keep matters in status quo ante bellum until the question at issue between the parties can be finally determined by the court, thus facilitating the administration of justice at the trial. See Gbadamosi v. Alate (1998) 12 NWLR (Pt. 578) 402 and Obeya Memorial Specialist Hospital & anor v. Att.General Federation & anor (1987) 3 NWLR (Pt.60) 325.
The important issues the courts usually consider before deciding whether or not to issue an order of interlocutory injunction are as follows:-
1. Is there a serious issue to be tried?
2. Are damages an adequate remedy?
3. Where does the balance of convenience lie?
4. Are there special factors?
The principles upon which the court will act in an application of this nature are further well settled in the case of Ochudo v. Oseni (1998) 13 NWLR (Pt.580) 102, wherein it was held:- “…..the court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it, there is probability that the plaintiff is entitled to relief….that the balance of convenience is on his side and furthermore, that damages cannot be an adequate compensation for his damage if he succeeds at the end of the day.”
At this stage of the application for interlocutory injunction, it is also not necessary that the court should find a case which would entitled the applicant to relief at all events. It is quite sufficient for the court to find and that the status quo should be preserved until the question can finally be disposed of. The order will still be made even if the defendant has a technical defence. In American Cyanamid C. v. Ethicon Ltd (1975) A. C. 396 at 407 – 409 Lord Diplock stated that: “It is not part of the courts function to try to resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matter to be dealt with at the trial.” The fact that affidavit conflict in an application for interlocutory injunction supports rather than derogate from the fact that there are substantial issues to be tried. See Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419 and Globe Fishing Industries Ltd v. Coker (1990) NWLR (Pt.162) 265.
It is also trite law that, the grant or not of an interlocutory injunction is a discretionary relief. The jurisdiction of the court to grant interlocutory injunction being equitable, the manner of the exercise of the discretion depends upon the precise nature of the particular rights which is sought to be protected and upon all materials and circumstances. In other words, the applicant has an unfettered duty to satisfy the court that he is entitled to the relief sought. See Ayorinde v. Attorney-General Oyo State (1996) 3 NWLR (Pt. 434) 20.
It is also settled that an interlocutory application should relate to a substantive claim. See Okoya vs. Santilli (1991) 7 NWLR (Pt.206) 753 and Chiekwako v. Nwali (1998) 8 NWLR (Pt.560) 114.
From the plethora of cases, it is settled in law that the grant or refusal of an order of interlocutory injunction is the absolute discretion of a court, which discretion like all other judicial discretions must be exercised judicially and judiciously, having regard to all the facts and circumstances of each and every case. Per Adzira Gana Mshelia, J.C.A.
INTERLOCUTORY INJUNCTION: WHAT IS MEANT BY BALANCE OF CONVENIENCE
What is meant by balance of convenience is the disadvantage to one or the other side which damages cannot compensate. The applicant must prove that the balance of convenience is on his side. As stated by Nnaemeka-Agu JSC in Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419. “It means that more justice will result in granting the application than in refusing it.” Put it another way, the two questions to be posed by the court are: Will the applicant suffer more inconvenience if the application is not granted? Or will the defendant suffer more inconvenience if the injunction is granted? Perhaps the meaning of balance of convenience cannot be better put than the definition given to it in the case of A.C.B. v. Awogboro (supra) Tobi JCA (as he then was):- “The balance of convenience (the opposite of inconvenience) between the parties is a basic determinant factor in an application for interlocutory injunction. In the determination of this factor, the law requires some measurement of the scales of justice to see where the pendulum tilts. While the law does not require mathematical, it is the intention of the law that the pendulum should really tilt in favour of the applicant.” The balance of convenience between the parties is a basic determinant factor in an application for interlocutory injunction. In the determination of this factor, the law requires some measurements of the scale of justice to where the pendulum tilts. In other words, the advantages of granting the injunction will outweigh the disadvantages which are really the odds. In the case at hand, the learned trial judge did consider, and weigh the balance of convenience in the imaginary scale of justice to see where the pendulum tilts and came to the conclusion that the balance of convenience is in favour of the plaintiffs/respondents. The learned trial judge at page 111 of the record pronounced thus: “This court cannot conceive the adequacy of any payment of damages or compensation to the plaintiff’s by the defendants, no matter how high the quantum thereof, in respect of the injury the plaintiff’s would sustain if the injunction is refused and they should ultimately turn out to be right. Therefore, this is a proper case for the grant of interlocutory injunction as prayed for by the plaintiffs.”
This one thing that is well settled in law, however, is that the grant or refusal of an order of interlocutory injunction is in the absolute discretion of the court, which discretion however, like all other judicial discretions, must be exercised judiciously, having regard to all the facts and circumstances of each and every case. The remedy of interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules. Per Adzira Gana Mshelia, J.C.A.
