The Interlocutories

Yep, I know it sounds like a cool band name (or not). There are loads of interlocutory applications like I said earlier but there a set of them known as INJUNCTIONS. Injunctions are equitable reliefs granted at the discretion of the court. Injunctions are mostly used to maintain the status quo and ensure that the decision of the court on the main matter is not pointless. Imagine if two people (persons A and B) are fighting for ownership of an apple and in the meantime it is with person A, then they go to court, then the court decides this apple is for person B, but guess what, person A has used the apple to make apple pie and worse still, sold the apple pie. What was the point of going to court at all? An injunction will instruct person A to keep that apple in the fridge until the court decides. Shikena!

There are various types of injunctions

  • Interim Injunction
  • Interlocutory Injunction
  • Perpetual Injunction
  • Mareva Injunction
  • Anton Piller Injunction
  • Quia Timet Injunction

I will start with the top 2 because they are twins.

Interim is the Taiye (in Yoruba language this is the twin that comes out first) and it is EX PARTE. The other party has no say.

So back to our apple fight, let’s say I’m person A and you are person B. So you are trying to take MY APPLE. You have gone to court, filed the action and served me, now waiting for the first day. But you saw me downloading a recipe for apple pie YIKES!!! And even saw me buying flour, sugar milk and what not. But the wheels of justice run slow, the first court date isn’t until next Monday. You go to court and ask for an interim injunction, telling me to stay as I am, maintain the status quo of the apple. No selling, no juicing and certainly no baking! An interim injunction is one area in which the right to fair hearing is side-stepped. Because the courts won’t even hear my voice. If you present your case well they give the order, and that’s it. The interim order lasts until the motion on notice.

The court considers some things before granting an interim injunction (In exams I used BLURICS to remember them and it came out, we were asked to just list)

  • Balance of convenience
  • Legal right
  • Undertaken as to damages
  • Real urgency
  • Irreparable loss or damage
  • Conduct of the parties
  • Substantial issue to be tried (triable issue)

Obeya Memorial Hospital v. AG Federation: I can like to use this case for this topic also AMERICAN CYNAMID CO v. ETHICON LTD no time to cram too many things.

You might be asked to list or be asked to draft an affidavit to support the motion. You may depose to the affidavit by yourself or use any other suitable person. In the affidavit, the examiner will be looking for facts that show the above considerations. For instance to show irreparable loss or damage you can say in your affidavit: That the subject matter of the dispute (apple) will be irretrievably lost if the respondent is not restrained from applying any cooking process to it or tampering with it.

But the rules Order 7 r 7(3) Abuja; Order 39 r 3(2) Lagos provide that the interim order should not be granted unless there is a motion on notice (a.k.a Interlocutory Injunction a.k.a Kehinde) following at its heels (pun obviously intended).

Interlocutory Injunction: This is the Kehinde (second twin to come out) and it is by MOTION ON NOTICE. So after you successfully get the ex parte interim order, it is but for a while. After it expires you’ll still need the interlocutory to maintain the status quo, stall any damaging actions on my end until we decide who owns the damn apple (which is the main issue of litigation). The courts considers the same things as above (except real urgency so we can call it BLUICS). The interlocutory injunction lasts until the matter is decided.

Mareva Injunction: The name was gotten from the first case it was used MAREVA COMPANIA NAVAEIRA S.A. v. INTERNTIONAL BULK CARRIERS LTD (remember, injunctions are according to the judge’s leading, so this was a stroke of genius moment). The Mareva is basically an asset freezing order. Let’s say we both have a case in court and it’s looking like I’m gonna win, and you think to yourself, what if I removed all my money in XYZ BANK Nigeria and transfer to Ghana, so even if Moyo wins this case it will be hard to enforce the judgment.

To grant a Mareva the applicant must show:

  • Cause of action which is justiciable in the jurisdiction of the state or under common law
  • Imminent Risk: That there is a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering any judgment in the plaintiff/claimant’s favour useless
  • Full disclosure of all relevant facts
  • That he has given full particulars of the defendant’s assets within the court’s jurisdiction: which bank what branch etc.
  • That the balance of convenience is on his side
  • That he is prepared to undertake to pay damages

You can say BUCIFF

SOTUMINU v. OCEAN STEAMSHIP (NIG) Ltd

In Abuja the rules provide for something like a Mareva but I think it’s even more far reaching, it’s called Interim Attachment of Property. Order 15. It is an order to attach the property of the respondent itself, whether within or without the jurisdiction, remember Mareva only looks at the ones within the jurisdiction and doesn’t attach the property, but freezes it. The law says the applicant must show

  • Particulars of the property required to be attached
  • Estimated value of the property as far as the applicant can reasonably ascertain; and
  • A declaration that to the best of his information and belief, the respondent is about to dispose of or remove his property from jurisdiction.

All these things are to be in the affidavit. For instance the particulars of properties you can have a paragraph in the affidavit saying: That the defendant/respondent is the beneficial owner of a 2 bedroom duplex situate at No 59, Alakija Road, Agege, Lagos with Certificate of Occupancy no______, A copy of the certificate is hereby attached and marked Exhibit A.

Anton Piller Injunction: Another case-led discovery. It was used in the case Anton Piller KG v. Manufacturing Processes LTD. It is a very daring injunction and involves law enforcement. If you accuse me of plagiarising your book and in court, as expected, you will have to show some form of evidence of my complicity, but you can’t find copies of the one I made. But you are sure, that I have some in the warehouse at the back of my house. You can apply to the court that policemen be allowed to get into my house, recover those books and seize them. Basically, it’s a SEARCH AND SEIZE order. It is popular in copyright cases and is in fact in the Copyright Act – Section 25. You apply by motion EX PARTE (obviously if I know beforehand that you are coming I’ll just hide everything). So when looking to grant an anton piller the courts must see that:

  • The property is in the possession of the defendant
  • Property is subject of litigation
  • The defendant is likely to destroy the property before the application on notice can be made
  • The claimant needs the property as evidence and without it his case will be frustrated

See Ferodo Bros v. Unibros Stores

Mandatory Injunction: This injunction is to stall the usual antics of public officers pending the determination of the main suit. You know they have executive powers and can like to infringe rights sometimes. So the injunction tells them to stop or refrain from doing something unlawful. Ojukwu v. Military Governor of Lagos.

Perpetual Injunction: These ones are beyond interlocutory applications because they are supposed to be binging forever. They must be asked for in the statement of claim. It usually comes handy in land matters; like let me never see your dirty leg stepping on my land again in your life, and that goes for everyone else, back off my land. Lol.

Quia Timet Injunction: This one is kind of a paranoid injunction, maybe your right is about to be infringed by someone else’s threatened action, you can tell the person to stop the thought of even doing the act, whatever it is.

Done!

The motion paper for the injunction is exactly like that of the interlocutory application we drafted here (It is after all also an interlocutory application). Only differences are:

  • ‘brought pursuant to’ (use the more relevant rules),
  • the prayer (you of course have to pray for the particular injunction you need) and
  • the address for service (the one we drafted was an ex parte application, therefore if we have to draft a motion on notice we will need to put the other party’s address after the applicant counsel’s address)

But just by way of example let us draft an application in the matter instituted by the Johnson family (represented by Ivie and Morayo) against Warantee Trust Bank. The land (situate at Block 44, 111 Road, Gwarinpa Estate, Abuja) is in possession of the bank and the Johnsons, want to maintain the status quo pending the determination of the matter.

Give it a trial. You can go over the injunctions above to know which one you need to draft. Then correct yourself with the answers at the end of this page.

Next we look into affidavits and how to properly couch the contents.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Looking at the question, you notice that the parties want to maintain the status quo pending the determination of the matter. Generally our Taiye and Kehinde are used to maintain the status quo, preserve the res, etc. however which one lasts till the matter is determined? If you said interlocutory injunction (Kehinde) you are very right! Therefore I draft just that. If you haven’t you can still try to draft befoe peeping at mine

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

CASE NO

BETWEEN

Ivie Johnson

Morayo Johnson ……………………………………………..….PLAINTIFFS/APPLICANTS

(For themselves and on behalf of the Johnson Family)

AND

Warantee Trust Bank Ltd………………………………..….DEFENDANT/RESPONDENT

MOTION ON NOTICE

BROUGHT PURSUANT TO ORDER__ RULE___ OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA RULES 2004 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.

TAKE NOTICE that this honourable court shall be moved on the __ day of ___ 2017 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel to the Plaintiffs/Applicants will be heard praying the court for:

  1. AN ORDER for INTERLOCUTORY INJUNCTION restraining the defendants, their agents, servants or any other person acting on its behalf from selling, leasing, charging, mortgaging or otherwise parting with possession of the property situate at Block 44 111 Road, Gwarinpa, Abuja. PENDING THE DETERMINATION OF THIS SUIT.
  2. AND FOR SUCH ORDER/ FURTHER ORDER that this honourable court may deem fit to make in the circumstances.

Dated the ________ day of _________ 2017

 

___________

Oga Lawyer

Defendant/Applicant’s Counsel

Oga Lawyer Chambers

1,Oga Lawyer Lane, Sokoto,

Abuja.

FOR SERVICE ON (because it is a motion on notice):

THE DEFENDANT/RESPONDENT

C/O ITS COUNSEL (at this stage of the action processes should go between the lawyers not the parties)

Veritas Law Chambers

I, Asokoro Road,

Off Unity Way,

Pape, Abuja.

 

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One thought on “The Interlocutories

  1. nice one Moyo.. By way of addition
    Anton piller injunction
    1. FHC has exclusive jurisdiction to hear such applications- s.251(f)CFRN
    2. the police officer to accompany the applicant to the respondent’s premises to enter, search, seize, destroy etc must be of or above the dank of ASP

    Like

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