Tuesday 15th March 2016

Page 28



A Mandatory Injunction is not Granted as a Matter of Course

Azubike Okoye

A Meaning

n injunction is an equitable judicial remedy by which a person is ordered to refrain from doing or to do a particular act or thing. It is often seen as a restorative order invoked by the court to deal with a defendant who has no respect for the court of law. In most cases, a mandatory injunction is granted to undo what has already been done, that is why it is usually referred to as restoratory injunction. An injunction restraining the continuance of some wrongful act is called prohibitory or restrictive. An injunction to restrain the continuance of some wrongful omission or to do a particular act or thing is called mandatory. See OHAKIM v AGBASO (2010) 19 NWLR (Pt. 1226) 172 S.C. Nature and Effect: A mandatory injunction is grantable even though the act sought to be restrained has been nearly or entirely completed before the action is begun. The power of the court to grant a mandatory injunction must like in every injunction, be exercised with the greatest possible care. See Halsbury's Laws of England 4th Edition Vol. 24 paragraph 950. It is noteworthy that a mandatory order is usually targeted upon a completed act. Hence, the order may be made, for example to order a building which has been erected to be pulled down if it is established that the defendant erected it stealthily in order to steal a match on the plaintiff on having notice that an injunction was to be taken out against him. It is only in exceptional cases that the court will grant a mandatory injunction. See KWANKWASO v GOV. KANO STATE (2007) ALL FWLR (Pt. 363) 179 at 198 paras. D - F (CA); Mandatory Injunction and Interlocutory Injunction distinguished: A mandatory injunction is sometimes classified as an interlocutory injunction. However, it is a

different type of injunction, with its own features, and requiring a consideration of its own distinct principles. It is made to reverse a completed act. See ATTORNEY-GENERAL ANAMBRA STATE v OKAFOR (1992) 2 NWLR (pt.224) 396. An order of interlocutory injunction is, on the other hand negative and restrictive in nature and, so is made to preserve the res pending litigation or to prevent a breach. Also there is difference in the quality of evidence necessary to entitle an applicant to any relief in the two types of injunctions. See OBEYA MEMORIAL HOSPITAL v ATTORNEY GENERAL FEDERATION (1987) 3 NWLR (Pt. 60) 3725; In an application for a mandatory injunction, the courts have usually shown more reluctance to make the order. Before it is granted; the courts require a higher degree of assurance that at the trial it would still appear that the order of mandatory injunction was rightly made.: See BLAKEMORE v THE BLAMORGANSHINE NAVIGATION (1832) 1 my and VR. 155. Guiding principles to the grant of a Mandatory Injunction The law is well settled that an application for a mandatory injunction is not granted as a matter of course. The granting or refusal of a mandatory injunction is at the discretion of the court hearing the application. Hence, it is granted under exceptional circumstances and upon clear of evidence based upon a very high standard. See PRINCE DR. RASHEED A. MODILE & ANOR. v THE GOVERNOR OF LAGOS STATE (2004) 12 NWLR (Pt.887) 354. It is therefore dependent on the peculiar circumstances of each case taking into cognisance the convenience and fairness of the mandatory order to both parties. A mandatory injunction is a different type of injunction, with its own features, and requiring a consideration of its own distinct principles. The principles relating to the grant of a mandatory injunction as restated in the case of ABUBAKAR & ORS. v JOS METROPOLITAN DEVELOPMENT BOARD & ANOR. (1997) 10 NWLR (Pt. 524) p. 242 at p.246 are as follows:a) where the injury done to the plaintiff cannot be estimated and sufficiently compensated for

in damages; b) where the injury to the plaintiff is so serious and material that the restoration of things to their former condition is the only method whereby justice can be adequately done; or c) where the injury complained of is in breach of an express agreement; d) where the defendant attempts to steal a match on the plaintiff such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed. See NDIC v S.B.N. PLC.(2003) NWLR (pt.801) pg.311at 399-429 para.H-C This piece cannot be complete without recourse to the salient principles set out by our learned jurist, Chief Afe Babalola, OFR, CON, SAN, in his text “Injunctions and Enforcement of Orders” 2nd Edition, 2007, Ibadan, pp.128-129 as follows: 1. “The state of affairs which is complained of must be such that would have entitled the plaintiff to obtain a prohibitory injunction restraining the defendant from bringing it about; it has not occurred, unless a prohibitory injunction would have been refused only on discretionary grounds which for one reason or another are found no longer to arise or to be of defensive weight. 2. The state of affairs, which might have been prohibited from coming about must have arisen at the time which the material order is made, even though the acts in question have not been completed. 3. It must not have become impossible for the defendant to restore the earlier position. For example, if a defendant who might have been enjoined from disposing of land is shown to have sold it to a purchases for value without notice from whom it cannot be recovered, no mandatory injunction will be granted. 4. It must appear that damages and other legal remedies are not sufficient to put the plaintiff in as favourable position as if he had received equitable relief in specie. 5. It must appear in all the circumstances and particularly in view of equitable considerations such as laches, hardship, impossibility of performance or compliance and inconvenience as between the parties that the most just cause is that the mandatory order be granted. 6. The plaintiff’s case must be unusually

strong and clear. 7. Where it can be shown that the defendant attempted to steal a match on the plaintiff by rushing to complete the act, the mandatory injunction is seeking to undo or restore, mandatory injunction will lie to restore the plaintiff to the position he would have been.” The onus is therefore on the applicant who seeks for a mandatory order to show that his prayers come within the settled principles guiding courts in granting application for mandatory injunctions, otherwise the application may be refused. This includes, how these prayers have culminated in pre-eruptive acts against the Applicant vis-a-vis the substantive action thus making an order of mandatory injunction imperative requiring the respondent to retrace his steps. See EKANEM v UMANAH (2007) ALL FWLR (Pt. 367) 928 at 942; Para. E (CA). The act sought to be reversed must be weighed with the Applicant’s benefit against the Respondent’s corresponding injury/detriment, which the Respondent may suffer should the application for mandatory injunction be granted. In resolving this, the Court ought to pose two related questions: a) What is the benefit of the order to the Applicant if the application is granted? b) What is the detriment of the Order to the Respondent if the application is granted? The judge in providing answers to the above posers will allow himself to be guided by the facts before him. The law requires some measurement of the scale of justice to see where the pendulum tilts. See DR. RABIU MUSA KWANKWASO v KANO STATE (2006) 14 NWLR (Pt.1000) pg.444 Conclusion: The overall application of the above principles will form the basis of the decision of our Courts in refusing or granting a motion for a mandatory injunction. The paramount consideration is whether the order of mandatory injunction will produce a fair result between the parties. It suffices to say that once our Court makes a finding that the Applicant has not satisfied the conditions for grant of mandatory injunction or that damages is an adequate compensation, the proper order is to dismiss the application seeking for a mandatory injunction in its entirety. See ABUBAKAR v JMDB (1997) 10 NWLR (Pt.524) pg.242. Azubike Okoye ACIARB (U.K.)

Legal Personality of the Week Rudolf Ezeani

‘Being a Lawyer Comes with Many Benefits but that should not be the Primary Focus’ to authentication of documents by companies and company securities, especially debentures. Third, the impact of the judgment was far reaching; fourth, it involved very well respected and able Barristers on either side. On one side was Chief F.R.A. Williams CFR, CON, SAN of blessed memory and on the other side was Prince Lateef O. Fagbemi SAN. I was led by Prince Fagbemi SAN in that case.

My name is Rudolf Udochukwu Ezeani. I am the Principal Practitioner at Rudy Ezeani & Co. I was called to the Bar in 1991 and have been in Law practice ever since. Have you had any challenges in your career as a lawyer and if so what were the main challenges? I have had a few challenges, like everyone else. The main ones have been centered around getting started in practice, where to start, how to start, moving to Lagos and such. Other challenges have been about sustaining the practice, and challenges related to running partnerships. What was your worst day as a lawyer? I guess that would be the day I took the first Ruling in my career. I had opposed a Motion on Notice for Stay and lost. The client, who was the judgment creditor, did not find it funny when the judgment was stayed and he showed his displeasure- publicly, in the court premises. He queried me outside the court room and said all kinds of things, including that he would not have lost if my principal had handled the matter himself. My explanation that the processes filed and arguments I advanced had indeed been approved by my principal, did not satisfy him. I felt bad about that but my principal, then M A Onyiuke Esq. who later became a judge of the Anambra State High Court (now of blessed memory) handled the matter effectively. He managed to put the client at ease later and told me not to worry about the incident. What was your most memorable experience?

Rudolf Ezeani

Writing the book –Law of Torts (With Cases and Materials) -with my dad has been the most memorable experience for me. Another memorable experience was the trial of FOLORUNSHO v ROSULA NIG LTD, Suit No FHC/L/CS/212/2001. It was a receivership case. A receiver was appointed over the company but when he tried to take over the company, he was rebuffed. We then applied for directions under S.391 of the Companies and Allied Matters Act. I remember the case for several reasons. First, there was a significant amount of money at stake; second, it raised a number of interesting legal points arising from operation of the Companies and Allied Matters Act & relating

Who has been most influential in your life? My parents have been the most influential. I grew up in fairly stable circumstances at the Enugu campus of the University of Nigeria. My parents took advantage of that serene environment. I think it gave them an excellent opportunity (i.e. apart from their own qualities) to teach me family values and the importance of virtues such as diligence, faith, justice, integrity and love. I am grateful to them but more importantly I thank God for blessing me with them. Why did you become a lawyer? I love the legal profession. It is one that exposes the practitioner to human life and its vicissitudes. It also gives immense opportunities to assist others. My parents are lawyers too and both of them served on the bench. You may say that I did not have to look far for what to do. What would your advice be to anyone wanting a career in law? I would encourage such a person. The

person has to be diligent and ready to work. Being a lawyer comes with many benefits but that should not be the primary focus. It comes with responsibilities too. Part of my welcome message to any new wig is to refer to the message of Abraham Lincoln contained in ‘Notes for a Law Lecture,’ one of many manuscripts collected and collated by his White House secretaries after his death and published in The Collected Works of Abraham Lincoln, by the Abraham Lincoln Association. In the Notes, Mr Lincoln admonishes prospective lawyers to be honest. If I may quote him, he says: ‘There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.’ If you had not become a lawyer, what would you have chosen? I would have chosen to be a medical doctor. Where do you see yourself in ten years? God willing, I should still be in Law practice.

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