An injunction is simply an order of the court to do something or refrain from doing something. There are different types of injunctions: perpetual, interlocutory, mandatory, prohibitory, quia timet, Mareva, and Anton Piller orders. Injunctions are equitable remedies that are given at the discretion of the court. Although the courts have this discretion as to whether or not an injunction is granted, they are guided by certain principles, and will consider several factors before granting one. The factors considered by the courts in determining whether or not to grant an injunction will depend on the type of injunction that is being sought. However, there are a number of guiding principles that guide the courts in granting any injunction.
The first principle is that the plaintiff (the party asking for the injunction) must have a legal right to be protected. This legal right must be recognised by law; it is not sufficient for the wrong to be an inconvenience suffered by the plaintiff or an unconscionable act by the defendant.
Secondly, the legal right must have been infringed or there is a probability that it will be infringed. Thirdly, the injunction will only be granted if there is no other remedy available or adequate in the circumstance. For instance, if damages would be an adequate remedy then the courts will not grant an injunction. Furthermore, the courts will balance the interests of both parties in deciding whether to grant an injunction. If the order would be too oppressive to the defendant, the courts will refuse to grant the order. An example of this is in cases where a plaintiff comes to court because a building has been erected beside them interfering with their right to light. The plaintiff may come to court seeking an injunction to stop the development of the property. Or if the building has been completed, they may be seeking an order that the building be removed. Generally, the courts will be reluctant to grant the order in such cases because of the investment of money and labour that would have gone into the building. In such cases, the courts will also consider the behaviour of the defendant; if they have acted fairly and in a neighbourly manner, they will be more inclined to award damages to the plaintiff rather than grant an injunction to compensate for the inconvenience the plaintiff suffers in the reduction of the natural light in their own property. Other factors considered by the courts are the futility of granting an injunction and the possibility of compliance with the order.
Perpetual injunction – a perpetual injunction is an order granted at the end of a lawsuit. It is the final order of the court after the resolution of a dispute.
Interlocutory injunction – an interlocutory injunction is a temporary order to maintain the status quo until the main issue (primary legal action) is resolved or until enough time passes to determine the effect of the order. These orders are granted while the primary action is pending. It is important to note that with interlocutory injunctions, the plaintiff will normally be asked for an undertaking as to damages which is held by the court for the benefit of the defendant, if it is determined at the trial that the injunction should not have been obtained.
Mandatory injunction – mandatory injunctions are orders to carry out a positive action i.e. do something. For instance, the court may order the demolition of a house.
Prohibitory injunction – prohibitory injunctions are orders to refrain from or stop doing a wrongful act.
Quia timet injunction – a quia timet injunction is granted where the plaintiff fears that their rights will be infringed. It is anticipatory; at the time of the injunction, no actual injury to the plaintiff’s legal right has occurred.
Mareva injunction – This is a prohibitory interlocutory injunction that allows the plaintiff in a case to “freeze” the assets of the defendant, to prevent the defendant from moving them beyond the reach of the courts. The injunction is awarded in support of a claim by the plaintiff in a primary legal action. A Mareva injunction is usually granted before the plaintiff obtains judgment in the primary legal action but it is also possible to obtain a post-judgment Mareva to prevent the defendant from thwarting the plaintiff’s attempts to execute a judgment. Basically, the order aims to prevent a situation where before or after judgment, a defendant quickly transfers their assets out of the jurisdiction to avoid the judgment or penalty awarded by the courts. Because the essence of the injunction is surprise, it is normally sought on an ex parte basis (and the defendant may subsequently apply to have the injunction discharged or varied). Third parties such as banks are informed of the injunction and will be in contempt of court if they help the defendant to breach the injunction. Mareva injunctions are not intended to cripple the operations of the business, the objective is to ensure that, should the plaintiff get judgment in their favour, the defendant does not frustrate the ability of the plaintiff to execute judgment. The order may simply be that the balance in the account must not fall below a certain figure.
Anton piller order – This is a mandatory interlocutory injunction designed to prevent the destruction or removal of evidence. It is a civil, search and seizure order that is most commonly used in cases of intellectual property rights. It is normally granted ex parte (both parties are not required to be present). The defendant is ordered to allow the plaintiff’s representatives to enter premises belonging to the defendant to seek evidence in support of a primary legal action, in circumstances where there is a danger that the evidence will be destroyed or removed. Plaintiff cannot use force to enter premises but the defendant will be in contempt of court if s/he denies admission and, in addition, the court may draw adverse inferences from such a refusal (i.e., it does not look good for the credibility of the defendant). If the defendant has nothing to hide, they should have no hesitation complying with the order.
In all, the courts are trying to serve justice to the parties in the dispute. On the scale of balance are the rights of the plaintiff and the effect of the order on the parties.
Joseph Jagunmolu Ogunmodede is the Founder/CEO of THE LEGAL DIARY.
He is a Double First Class lawyer from the prestigious University of Ibadan and the Nigerian Law School. Joseph is an Attorney at Udo-Udoma and Belo-Osagie with interest in Corporate Law, Energy Law, Real Estate Law and Commercial Litigation.