What is an Interlocutory Application? #
An interlocutory application is an application which does not decide the rights of the parties but are made for the purpose of: (a) keeping things in status quo till the rights of the parties can be decided; (b) obtaining some directions of the court as to how the cause of action is to be conducted; (c) determining what is to be done in the progress of the cause of action for the purpose of enabling the court ultimately to decide upon the rights of the parties. Therefore, an order of court is interlocutory when it does not deal with the final rights of the parties. Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924 – Per Peter-Odili, JCA in Ugo v. Ugo (2008) 5 NWLR (Pt. 1079) 1 at P. 15, paras. A – E
Issues in the Main Case are not to be determined at an Interlocutory Stage #
DAVID KOLAWOLE ARE v. OLUWAFEMI YEMISI OWOEYE (2014) LPELR-41096(CA) held that:
“…The law is that in an application for the grant of injunction pending the determination of the substantive claim (including the hearing of an appeal arising from a ruling on such application), the Judex has a duty to ensure that pending issues in the substantive suit are not determined at that interlocutory stage. See Group Danone & Anor vs. Voltic Nigeria Ltd (2008) LPELR-1341 (SC); Iweka vs. S.C.O.A. (Nigeria) Ltd (2000) LPELR-1563 (SC);: ” … a court should not delve into issues meant for the substantive suit or appeal when considering relevant interlocutory application”
Relevant Factors the Court should Consider in granting an Application for Interlocutory Injunction #
CHIEF MUMUNI ISHOLA OMOLE & ORS v. CHIEF (MRS.) CHRISTIANA OLADOTUN SONOIKI (2017) LPELR-50095(CA) made a detailed exposition of the factors to be considered in the grant of interlocutory application when it held that:
“The relevant factors that a Court may take into account in the determination of an application for interlocutory Injunction include: –
(i) The strength of the applicant’s case in the substantive suit and that there is a serious issue to be tried in the suit;
(ii) That the balance of convenience is on the side of the applicant, the onus of which is on him;
(iii) That monetary damages will not be an adequate compensation for the injury from the violation of his right if he succeeded in his action;
(Iv). That the conduct of the applicant has not been reprehensible; and
(v) The applicant must give an undertaking as to-damages save in recognized exceptions. See OBEYA MEMORIAL HOSPITAL vs. A – G FEDERATION (1987) 3 NWLR (PT 60) 325, KOTOYE vs. CBN (1989) 1 NWLR (PT 98) 419.”
MRS BISI GEORGE & ORS v. FLORIANA DE STEFANI (2022) LPELR-57274(CA):
” …The law requires that the res or subject matter of the litigation should not be destroyed or annihilated before the judgment of the Court. It is beyond doubt that the object of interlocutory injunction is to protect the Applicant against injury by violation of his right for which he cannot be adequately compensated in damages if the dispute is finally resolved in his favour at the trial. Generally speaking, interlocutory injunction is granted to preserve the property in dispute from acts or further acts of trespass, destruction or injury, etc, pending the determination of the Issues submitted for adjudication by the Court. See Obeya Memorial Hospital vs. AG Federation (1987) LPELR-2163 (SC), Ogbonnaya vs. Adapalm Nig. Ltd (1993) LPELR-2288 (SC)”.
Balance of Convenience in applications for Interlocutory injunctions #
AKPAN v. NNAH & ORS (2022) LPELR-57201(CA)
“No doubt, balance of convenience is one of the key factors to be considered in an application for interlocutory injunction. It means the disadvantage to one or the other party which damages cannot compensate in the final determination of the case. Balance of convenience means also that more justice will result in granting the application or in refusing it or vice versa. See KOTOYE VS. C. B. N. (1989) 1 NWLR (PT. 98) 419 (S.C.). Also in the case of MABON LTD & ORS. VS. ACCESS BANK (2021) LPELR-53261 (CA) PATRICIA MAHMOUD, JCA speaking for this Court on the meaning of balance of convenience held in page 34-35, paras. E-D that: This is not an abstract term, but it can be quite subjective because what constitutes a balance of convenience in one situation may not be so in another. In other words, the determination by a Court of where the balance of convenience rests in a case is a question of fact not law. This exercise of discretion implies weighing from the evidence before the Court the degree of hardship or inconvenience which each party is likely to suffer according to whether the order is granted or refused. The Applicant therefore has the burden to establish or prove by facts in evidence that the balance of convenience rests on his side, not just by merely stating so.” Per BALKISU BELLO ALIYU, JCA (Pp 12 – 13 Paras A – A).
ADESINA v. AROWOLO & ORS (2003) LPELR-7280(CA)
I must reach that to determine the balance of convenience firstly, it is settled that where damages are an adequate remedy and the defendant is able to pay them, that injunction will be refused; and secondly, again, in deciding question of balance of convenience the Courts can take into account of such factors as pervading social and other economic factors appurtenant to the situation. In this regard, I refer to the Court’s reference to economic factors that came into play in the matter, for example, the rising costs of building materials and the general inflationary trend in the economy rightly taken into account in determining the balance of convenience here. The finding cannot be faulted.
I think that the findings of the Court below that the appellant having clearly quantified in his claim the damages both special and general to be N2,660,000,00 has shown that damages will adequately compensate him should he succeed at the trial. This proposition is well grounded on the authorities. There is no other cogent reason to be inferred from the appellant quantifying his claim in damages. This conclusion is consolidated all the more by the appellant unambiguously deposing to the effect that all he required was for the court to stop further construction on the land and not to destroy the existing structures as shown in exhibits C, D and E. Against the extensive building operations on the land as depicted in exhibits C, D and E there is no way the land could be put into immediate use for piggery business and other agricultural purpose without destroying the structures in the land. As regards the other aspect of the matter, there are authorities to support the trial Court taking into account of the rising costs of building materials and economic trend in determining the question of balance of convenience as between the parties. See Beaverbrook Newspaper v. Keys (1978) 1 CR 582. Finally, it seems to me on the peculiar facts admitted on both sides to this matter, which clearly have acknowledged the building construction works already on the land in dispute, that the maintenance of status quo cannot therefore, be contemplated as the prevailing factors are no longer evenly balanced between the parties. The instant application has suffered some considerable delay thus making the changed state of affairs in this matter not fit for status quo to be ordered. In the same vein, an undertaking as to damages, which is another aspect of the factor to have in consideration in this matter, again on the particular facts of the matter cannot offer adequate protection to the respondents. This is so irrespective of whether the appellant is capable of meeting the terms of such order or not. Besides, the finding of the Court below on the rising cost of building construction has put any serious consideration of this measure beyond the pale of this matter. It is against the foregoing background that I have come to the ultimate conclusion that the Court below was right in holding that pending trial, the respondents stand to lose more at the end of the day if the Court were to grant the interlocutory injunction in this matter. And if I may repeat, the rising cost of building construction coupled with the general inflationary trends in the economy, factors the Court below rightly in my view took notice of pose very imponderable proposition to granting the said relief. Also the appellant’s averments as contained in his statement of claim show that the land in dispute is situate in a layout now the scene of intense development activities. For all this, the balance of convenience in this matter is undoubtedly on the side of the respondents. And I so order. Besides, this Court would be loathe to interfere with a trial Court’s exercise of its discretion as here which has not led to miscarriage of justice. I am therefore satisfied that the trial Court exercised its discretion judicially and judiciously in refusing the application. Its reasoning and conclusions cannot be faulted in that respect. In the result, I find no merit in the appeal and dismiss it as unmeritorious with N7,500.00 costs to the respondents.” Per CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JCA (Pp 19 – 25 Paras E – D)
