Thursday, 16 March 2017
WHETHER OR NOT PERPETUAL INJUNCTION LAST FOREVER OR SHOULD LAST FOREVER.
WHETHER OR NOT PERPETUAL INJUNCTION LAST FOREVER OR SHOULD LAST FOREVER.
The English legal system did not know anything such as the rules of equity; the defects in the common law system led to the development of equity through the English courts of chancery. This common law had some forms of rigidity, technicalities and accompanied by cumbersome procedural inadequacies refusing to accommodate certain rights hitherto not recognized in its various existing writs nor shift its principles to give better solutions to acknowledged legal problems other than the commonly available common law remedy of damages which in many case was inadequate. The doctrines of the common law were generally strict and harsh, not meeting the end of justice, substantively and procedurally. The existence of these myriad of problems led to be emergence and growth of equity a system of law administered by the chancery courts as a supplement and corrective measure to the common law. Thus, equity developed new remedies in its concurrent jurisdiction such as specific performances, injunctions, rescission, rectification, delivery-up and cancellation of documents etc.
WHAT IS INJUNCTION?
An injunction is an order of the count directing a person or persons to retain from doing some particular act or thing or less often, to do some particular thing or act. A remedy which originally could only be obtained in the chancery or court of exchequer or court of exchequer. In Lawal v. Adeleke (2004), the court stated the meaning of an injunction to mean “an order issued by a court of law to restrain a party against whom it is issued to prevent a repetition or continuation of a wrong act”
TYPES OF INJUNCTIONS
The types of injunctions inter alia include the following: (a) prohibitory or mandatory (b) perpectual or interlocutory (c) common or special injunction.
A perpetual injunction is generally a post trial relief. It is usually granted after a full trial of the case on the merits except when the parties have consented to the court granting a perpetual injunction by way of consent judgement in which case no trial will take place.
Perpetual injunction is directed towards the final settlement and enforcement of the rights of the parties which are in dispute. A perpetual injunction or final injunction is granted after the trial in which the plaintiff has established his right and the actual or threatened infringement of it by the defendant. This, to add is the direct opposite of interlocutory injunction.
PRINCIPLES GOVERNING THE GRANT OF A PERPETUAL INJUNCTION
The court in an attempt to granting a perpetual injunction sought by a party before it will first circumscribe the following into such facts of the parties, thus:
Damages must be an inadequate remedy: in the case of London & Black well Rly v. Cross, Lindley L.J. Stated that “the very first principle of injunction law is that prima, facie, you do not obtain injunctions to restrain actionable wrongs for which damages are the proper remedy”. Thus, if the injury can be adequately compensated by money payment (especially where the damage is done in the past and there is no intention to repeat such in the future by the defendant no order of injunction will be granted. However an injunction may be granted to restrain breach of a negative term in a contract for personal services, even though damages would be an adequate remedy.
The plaintiff must establish a legal right: A perpetual injunction is granted only when the party who seeks it has a cause of action both statutory as well as equitable justiciable before the court and in order to obtain the injunction, he must show either that there is an actual or threatened injury to some legal or equitable right of his or that the other party has behaved or threatened to behave in an unconscionable manner. This was the position of the court in the case of Hodgson V. Duce (1856). This is to say that the rights to be protected by a decree of injunction must be dearly defined and ascertainable. Thus, in the case of Karama v. Aselemi, where to wit, the plaintiff sought a declaration of title to land and an injunction to restrain the defendants from further interference with the said land. The trial learned judge found that part of the land in dispute belongs to the plaintiffs but however refused to grant the reliefs sought on the grounds that the boundaries of the land claimed by the plaintiffs were not dearly defined. In the establishment of his right, the interest of the plaintiff will be weighed with the interest of the other side (defendant)
Remedy is discretionary: This entails and presupposes that the granting of perpetual injunction as well as any other kind of injunctions are generally at the discretion of the court.
The plaintiff’s conduct: - At this juncture, it is paramount to state first that as a matter of equitable maxim, He who comes to equity must come with clean hands thus; an injunction may be refused if the plaintiff has been guilty of acquiescence (I .e an injunction to restrain the use of a house as a shop was refused since the plaintiff had himself bought goods there or laches if he has not come to equity (the court) with clean hands.
The effectiveness of the remedy sought: The court in an attempt to granting the remedy of injunction especially, perpetual injunction will consider the effectiveness or value of such injunction if granted. Thus, where the effect will be worthless or valueless, the court will not grant such reliefs. In the case of Eshugbayi Eleko V. Frank Morrish Badeley, where the defendant, an officer administering the Government of Nigeria made an order under the deposed chiefs removal Ordinance (cap. 78 of the laws of the Federation of Nigeria) requiring the plaintiff to leave the colony and adjoining provinces. Thus, this action by the plaintiff. Seeking a declaration that the order was null and void and seeking an injunction against the defendant.
The court refused and held that injunction cannot be binding on the head of the executive who was acting on behalf of the crown. Equity does not act in vain. With recourse to the aforementioned explanations of perpetual injunction one question necessary to be asked is on the word “perpetual”.
The adjective used to qualify the noun “injunction” called “perpetual” has led to some form of legal arguments and in certain circumstances, legal confusion as to whether or not it suggests or means that the injunction lasts forever, or that it is suggestive of it to mean that the injunction should last forever?
The above question as in other similar legal question has never had a straight forwarded solution. Nevertheless, some legal attempts have been advanced by learned authors of law literature though without a single voice of yes or no, that is to say that the question lacks a consensus answer.
According to S.C. Dike (LL.M), “the word perpetual is sometimes taken to mean forever, until the end of the matter or the conclusion of the case or thereafter”. Furthermore, he stated that “it is an order directed at the defendant restraining him perpetually from doing or refraining from doing a particular thing or matter”. The learned author believes that perpetual injunction connotes a relief/remedy when granted by the court of law will bear a permanent effect on the parties to the case, negatively and positively on the respondent and the applicant respectively. Thus they last forever or are perpetual (i.e the effect of the relief).
However, according to another learned author in his juristic literature on the concept of perpetual injunction as to whether or not it lasts forever, the learned author postulated that the word “perpetual” does not necessarily mean that the effect of the order must endure forever; in his view it means that the order will finally settle the present dispute between the parties, being made as a result of an ordinary action, the court having heard in the ordinary way the arguments of both parties.
In the words of another learned author, Philip H. Pettit, the word ‘perpetual” does not necessarily signify that the order is to remain permanently effective in some cases the defendant may be entitled to require that the operation of the injunction be expressly limited to a specific period as for instance, where a man has entered into a valid contract, not to enter into competition with his former employer in a defined area, may be three (3) years after leaving the employment.
Expounding on the endurance of perpetual injunction, Prof. M.I. Jegede stated that, 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. In the view of the learned author, the order does not necessarily last forever contrary to what the description or terminology of the order implies.
But that it however settles permanently, the existing dispute between the parties being an order that is made after both parties to the dispute have been given the opportunity of being heard and the merits and demerits of disputants’ contentions considered.
Flowing from the foregoings, preponderant of the arguments thus far indicate that perpetual injunction contrary to its literary meaning does not legally means “permanency” of the effect of such order. One may therefore be jurisprudentially spurred to ask “should the affect of perpetual injunction last forever as would ordinarily be expected”.
In an attempt to giving a view on the latter question, it is expedient to examine circumstances necessitating the grant of such injunction – perpetual injunction. Perpetual injunction as an equitable relief is seldom granted by the courts. It does follow that the mere establishment of a breach of a legal right by the defendant does not necessarily invoked the grant of the relief.
Certain factors (bars) may militate against the granting of such remedy. This includes laches, acquiescence, impossibilities and delay; delay defeats equity and that he who comes to equity must come with clean hands.
It is submitted that based on the controversy surrounding the equitable remedy of perpetual injunction which has also led to the skepticism in the mind of the courts in the grant of the injunction with regards also to the above outlined bars to the granting of the relief including juristic view of the aforementioned authors, the effect of the remedy of perpetually injunction should not necessarily last forever. The position of Philip H. Pettit it is a clear authority for this suggestion on the perpetuity of the injunction.
Perpetual injunction is usually granted at the end of the trial of a case. On the merits except when the parties have consented by way of consent judgment to the grant of same. The focus of the grant of perpetual injunction is to protect a legal right established. Usually, the court will not grant perpetual injunction unless there is a specific relief endorsed on the plaintiff’s writ or included in the statement of claim.
Though no argument in law can be said as being “superior and of general acceptance”, preponderance of the arguments canvassed by the learned authors and judicial decisions portray that though perpetual injunction sound permanent in law (i.e its effect) and as to whether or not it should be permanent, considering the controversial circumstances that may come with it and its adverse effect on the jurisprudence of a nation e.g Nigeria, if the effect of perpetual injunction is forever or should last forever, it has been submitted in this work that such effect of perpetual injunction should not necessarily last forever.
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