by Lloyd Ukwu
As an American educated lawyer, the use of injunctive relief in Nigeria has never seized to amaze me. In the United States of America, and certainly, in Nigeria, an injunction is a court order by which an individual is required to perform, or is restrained from performing, a particular act; with the writ framed according to the circumstances of the individual case.
An injunction commands an act that the court regards as essential to the administration of justice, or prohibits an act that is deemed contrary to good conscience.
It is an extraordinary remedy, reserved for special circumstances in which the temporary preservation of the status quo is necessary. My amazement comes from the fact that injunctions are too easily (and sometimes dubiously) granted by the courts in Nigeria.
Recently, there have been talks about Amaechi and the All Progressive Congress (APC) concluding plans to scuttle the swearing-in of the governor-elect, Nyesom Wike, on May 29, 2015 by obtaining a hastily arranged kangaroo injunctive relief against his inauguration as the governor of Rivers State. Such a legal move, in my viewpoint, would be frivolous to the extent of offending good conscience. In the United States of America, APC’s legal strategy would not have been an option because it would fall flat on its face and may even attract some serious disciplinary actions.
The courts ought to exercise their powers to issue injunctions judiciously; and thus, issue them only when the necessity exists. Undoubtedly, Wike won the 2015 gubernatorial election in Rivers State very convincingly. Dakuku Peterside and his political godfather, Chibuike Amaechi were badly trounced in the election. Wike’s victory stemmed from votes from his grassroots supporters and protest votes against Governor Amaechi, and by extension, his political protégé, Peterside, the gubernatorial candidate for the APC. The people of River State were sick and tired of eight years of Amaechi’s arrogance of power, impunity, misuse and misapplication of public funds, political intolerance – just horrible governance. Amaechi and APC have threatened to take their disaffection with the election result to the election tribunal, which is a legitimate course of action for anyone with any grievance with the outcome of an election. But then, where lies the need for an injunction?
An injunction is usually issued only in cases where irreparable injury to the rights of an individual would result otherwise. It must be readily apparent to the court that an act has been performed, or is threatened, that will produce irreparable injury to the party seeking the injunction. An injury is considered irreparable when it cannot be adequately compensated by an award of damages. The injury that APC and Amaechi are referring to, if any, is not irreparable. There are legal remedies for electoral flaws. For example, the court can order a recount or removal from office via quo warranto.
Injunction is an equitable remedy that can be issued only if legal remedies are unavailable. In other jurisdictions, such as the United States, injunctive relief is not a remedy that is liberally granted, and, therefore, a court will always consider any hardship that the parties will sustain by the granting or refusal of an injunction.
In Montesquieu’s The Spirit of the Laws, he urged for a constitutional government with three separate branches, each with defined abilities to check the powers of the others. But in Nigeria I have noticed that this doctrine is flagrantly abused or ignored.
Allowing an injunction to be issued against the police or Economic and Financial Crime Commission (EFCC), so that it cannot investigate or arrest an individual is a violation of the doctrine of separation of powers. There is no necessity because if arrested, the court can grant a bail if there is no danger to the community or there is no risk of flight.
What I have noticed here is that there is a lot of forum shopping. Otherwise, why would Amaechi and APC seek an injunction from a court sitting in Awka, Anambra state? There is virtually no nexus between Rivers state and Awka.
This type of forum shopping and frivolous suits must be discouraged by punishing both the judges and the attorneys involved in such actions. I strongly believe that the APC’s and Amaechi’s efforts would not pass any legal muster. Therefore, it is legally impossibility for them to stop the inauguration of the Governor-elect of Rivers State, Nyesom Wike.
Lloyd Ukwu is a lawyer and writes from Port Harcourt, Nigeria. He can be reached through [email protected]
The opinions expressed in this article are solely those of the author.