INJUNCTIONS AS AN EQUITABLE REMEDY

An injunction is an order of the court commanding a person to do an act or refrain from doing an act.

Where there is a continuing breach, an injunction is the appropriate remedy. An example is where there is a continuing trespass on the applicant's land.

An injunction can be sought for an actual breach or an anticipatory breach. A breach is anticipatory where the defendant had not begun the infringing act, but has made preparations for doing that.

An injunction granted for an anticipatory breach is known as a qua timet injunction.

Injunctions like other equitable remedy is discretionary. That is, the court has a discretion whether or not to grant an injunction. The House of Lords in American Cyanamid v. Ethicon Ltd sought to set out the framework to guide the court in the exercise of its discretion. It stated that the factors to be considered are as follows:
1. That there is a substantial case to be tried,
2. that there is a risk of irreparable damage to the applicant,
3. that the applicant would not be sufficiently compensated by an award of damages,
4. that the applicant is willing and able to compensate the defendant adequately if his case fails.

The Supreme Court in Buhari v. Obasanjo stated that in granting an injunction the court will consider the 'balance of convenience' on both sides to see where the pendulum tilts.

Injunctions can be classified as follow:
1. Interim Injunctions: This is usually granted exparte (I.e without notice to the other party), before trial to maintain the status quo pending a trial on notice, and a grant of an interlocutory injunction.
2. Interlocutory Injunction: This is usually granted during trial on notice to all parties to maintain the status quo pending the determination of the matter and an award of a final injunction.
3. Permanent or Final Injunction: This is granted at the end of the proceeding on merit, upon the determination of the matter.
Examples of Injunction include:
1. Manreva Injunction: An order granted to freeze the assets of the defendant upon which judgement would be levied to prevent him from transferring it or moving it out of the jurisdiction of the court with a aim of defeating or delaying the execution of a judgement.
2. Anton Pillar Injunction: This is an order for entry and seizure levied on the premises of the defendant, where it is believed that he stores materials for infringement or infringing copies of a work.

In conclusion, over the years, injunctions have become an indespensable remedy in all judicial proceedings over the years.

DAMAGES AS COMMON LAW REMEDY

Historically, the only remedy available at Common Law is the award of damages, which was not always sufficient in all cases, this led to the intervention of the court of Chancery in awarding equitable remedies one of which is injunctions which we discussed earlier.

In simple terms, damages merely refers to monetary compensation for the loss suffered by the plaintiff from the breach of the defendant. The object of the award of damages is to put the defendant in the position he would have been as the breach not taken place as far as possible. For Instance, if A a car dealer contracts to sell a Car to be for N5 million, and B fails to buy the car, and a result of delay in selling the car as at the time A will sell the car to C, the market value has reduced to N4 million, A will be awarded the difference of N1 million as damages.

As a general rule, damages are intended to be compensatory and not punitive. However, in certain circumstances the court may award examplary damages where for instance the defendant's act was either willful or flagrant.

Let's examine the various types of damages:
1. Compensatory Damage: This is an award for the pecuniary loss of the the plaintiff (see F.R.A Williams v. Daily Times Nigeria Ltd). This could be classified into:
A. General damages: This is the damages which the court award based on the presumed loss of the plaintiff. That is, the attitude of the court is this; if there is a breach then there must be some damage. So, the plaintiff need not specially plead that he suffered any real or actual damage before general damage is awarded.
B. Special Damages: This is awarded in addition to general damages  where the plaintiff shows that he suffered some real or actual Damages. Such as loss of profit, loss of income and earnings, etc. They need to be specially pleaded before they are awarded.

2. Punitive or Exemplary Damage: This is compensation awarded over and above the damage suffered by the plaintiff, as a punishment to the defendant. Thus where the actual loss is N1 million the court may award N10 million to the plaintiff as punishment to the defendant. This is usually where the breach is intentional, flagrant, or the defendant derived economic benefit from it. (see Rookes v. Bernard)

3. Aggravated Damages: This is an award for non pecuniary loss of the Plaintiff such as loss of reputation, goodwill, honour, pride, integrity etc. (see F.R.A Williams v. Daily Times Nigeria Ltd)

4. Nominal Damages: this is awarded where the loss suffered by the defendant is minimal or insubstantial, it is an award of meagre amount to the plaintiff.

Some Rules Governing the Award of Damages
1. Remoteness of Damage: The court will usually not award any damage for a consequence that is too remote to be said to result from the breach. For example, if A contracts to sell his car to B and B fails to buy and as a result the car was stolen in A premises. This loss of the car can not be said to result from B breach, and thus is too remote.

2. Mitigation of Loss: In Law, A is expected to mitigate his loss and not allow it to flow endlessly. so where B fails to buy the car he is expected to sell it at the nearest available window and not leave it to continue to loose value.

THE LAW OF SUCCESSION - INTESTACY

when talking about succession, 'it always cheaper and easier to employ the service of a lawyer to avoid getting into a mess than employing one to get out of a mess'.

The beautiful thing about the law of succession is that it affects almost everybody. In a lifetime, you are either going to inherit property or pass property to your heirs. Whichever category you fall in, it must be in accordance with law, and like they say, 'ignorance of the law is no excuse'.

Property is generally divided into two types:
1. Real Property (land and landed property)
2. Personal property (all other property apart from land)

There are two types of succession
1. Testate Succession (where there's a valid will)
2. Intestate Succession (where there is no valid will or the will covers only part of the property of the deceased)

A will or testament is a legal document by
which a person, the testator , expresses their
wishes as to how their property is to be
distributed at death, and names one or more
persons, the executor , to manage the estate
until its final distribution. 

A gift of Personal property through a will is known as a LEGACY, and the beneficiary is called a LEGATEE
A gift of real property through a will is known as a DEVISE, and the beneficiary is DEVISEE

A person who wishes to pass his estate to his heirs may do so through a will, where he does not, his estate forms intestate estate and is governed by Laws relating to intestacy. Subsequently we will examine the laws relating to making of a will in another post, but here our focus will be on INTESTACY. 

Intestacy is the condition of the estate of a person who dies without
having made a valid will or other binding declaration. Alternatively
this may also apply where a will or declaration has been made, but
only applies to part of the estate; the remaining estate forms the
" intestate estate".

Where a person dies intestate, his estate is governed by the personal law of the deceased and the rules of equity. If during his lifetime, the deceased was subject to customary law, his estate would devolve in accordance to the rules of Customary Law, but where not, his estate is governed by the Administration of Estates Law of the various states in Nigeria. (see SALUBI v. NWARIAKU)

Where a person whose estate is governed by customary law on intestacy, a letter of administration need not be obtained for devolution of the property and the property may be shared by the community head or family head in line with the prevalent custom; but where the property is bound by the Administration of Estates Law, a letter of administration must be obtained.

Letter of Administration is the legal authority granted by the Probate Court to a person
called the administrator or administratrix to administer the estate or property of a
person who died intestate. A person is said to have died intestate when he dies without
leaving behind a valid will. The administrator derives his or her authority to act from
the terms of the letters of administration, and where the letters of administration is not
granted, an administrator lacks the authority to act. Ademola v. Sodipo (1989) 5 NWLR (Pt. 121)329.

Any person interested in the Estate of the deceased may apply for a letter of administration. This includes relatives, children of the deceased born in or out of wedlock.(see Section 26 (1) of the Administration
of Estate Law, Laws of Lagos State,
Volume 1, CAP A3, 2003)

The maxim number of persons that can apply for a letter of administration is four. (see Section 24 Administration of Estate Law, Laws of Lagos State).

Section 49(1) of the Administration of Estates Law states that, the estate of a person
who died intestate shall be distributed in the following manner; the surviving husband or
wife shall take the personal chattels absolutely and in addition the estate (excluding
personal chattels) shall be charged with the payment of a net sum of money equivalent
to the value of one third of the estate, free of funeral expenses, to the surviving
husband or wife plus interest from the date of death at the rate of 2½ % per annum
until paid or appropriated and subject to providing for that sum the estate (excluding
personal chattels) shall be held as follows; (a) one-third upon trust for the surviving
husband or wife during his or her lifetime and subject to such life interest, on the
statutory trusts for the children of the deceased; and (b) two thirds on the statutory
trusts for the children of the deceased.