APPLICATION FOR INJUNCTION PENDING APPEAL WITH COUNTER AFFIDAVIT AND WRITTEN ADDRESS
TAKE NOTICE that this Honourable Court will be moved on the …. Day of ……. 2012 at the Hour of 9 O ‘clock in the forenoon or soon thereafter as Counsel on behalf of the Applicant can be heard praying this Court for the following Orders:
DATED THIS …………… DAY OF ……………………………. 2012
COUNTER AFFIDAVIT IN SUPPORT
I, EmekaIkemson, male, Nigerian Citizen of No. 50 Ahmadu Close Ikoyi, Lagos State do make Oath and state as follows:
WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT
1.0 INTRODUCTION:
The Claimant /Applicant instituted an action at the High Court of Lagos State on the 5th day of July 2010 for a Declaration that the Partnership Agreement between it and the Respondent is still subsisting and also an Order of injunction to restrain the Respondent from disposing the properties of the alleged Partnership to wit: 2o vehicles. All necessary processes were filled and exchanged. The substantive action was dismissed on the 15th February 2012.
Thereafter the Claimant/Applicant filled a Motion for an Order of injunction restraining the Respondent from converting the 20 vehicles for their sole use pending the determination of the Appeal at the High Court of Lagos State and that was also dismissed on the 18th day of February 2012.
The Claimant Applicant filed another motion for an injunction at the Court of Appeal and also appealed against the judgment of the High Court of Lagos State.
2.0 ISSUES FOR DETERMINATION
The issues for determination in this motion are:
3.1 ARGUMENT IN FAVOUR OF THE ISSUES RAISED
3.1. ON ISSUE ONE
The Applicant has no legal right for the order to be granted.
For an order of injunction pending appeal to be granted, it is trite Law as enunciated in OYELANI V. MILITARY ADMINISTRATOR OF OSUN STATE(1999) 8 NWLR PT. 613 P. 45 that the grounds of appeal must raise substantial legal issues to be determined. In the instant case, the High Court found as a fact that the Claimant had no cause of action which will even warrant the raising of legal issues- referred to paragraph 8 of the Counter Affidavit.
3.2 ON ISSUE TWO
The grant of the Claimant/Applicant’s application will definitely deprive the Respondent of the fruits of the judgment given in his favour.
The Law is that the Court does not make it a practice of robbing a litigant of the fruits of success unless to refuse same will lead to the destruction of the res- and foist upon the Court of Appeal a situation of complete helplessness. See BADEJO V. FEDERAL MINISTER OF EDUCATION (1996) 8 NWLR PT. 464 P. 15
In the instant case, the Respondent has had two Judgments given in his favour and the case was instituted in July 2010. Also the Applicant has not shown the peculiar damage which the refusal of the order will cause him, as the 20 vehicles can be levied any time judgment is given in the Applicant’s favour on appeal and we rely on paragraph 9 of our Counter Affidavit.
3.3 ON ISSUE THREE
There is no likelihood of the Appeal to succeed as in the Notice of Appeal only one ground was raised which has been resolved by the trial Court.
The Law is that the Courts will consider whether prima facie there is merit in the grounds of appeal, that is, whether the grounds of appeal raised vital and substantial issues of Law to be decided in the appeal or where the Law is to some extent recondite such that either side may have the decision in his favour. See OWENA BANK NIG. PLC V. O.B.C. LTD (1998) 9 NWLR .PT. 546 P.129
In the instant case, it was found as a fact at the trial Court that the Claimant has no cause of action upon which vital and substantial issues of Law can be gleaned and we rely on paragraph 10 of our Counter affidavit.
3.4 ON ISSUE FOUR
The balance of convenience is in the Respondent’s favour if the order of injunction is refused.
The Law is that for an order of injunction to be granted generally, the applicant must show that greater harm will occasion him if the application is refused. See OBEYA MEMORIAL HOSPITAL V. A.G FEDERATION (1987) 3 NWLR PT. 60 P. 325.
In the instant case the Applicant has not proved any harm that will occasion it if the injunction is refused. Conversely, the Respondent has shown in paragraph 11 that it will suffer irreparable damage to the smooth running of its business if the injunction is granted.
3.5 ON ISSUE FIVE
The Applicant should not be entitled to the grant having failed to give security or undertaken as to damages.
The Law is that whenever an injunction is to be granted, the trial Court should extract from the Applicant an undertaken as to damages otherwise the Order so made may be discharged following an appeal to that effect. See IGBINGIE V. YUSUF (1993) 2 NWLR PT. 274 P. 206 In the instant case, the Claimant /Applicant failed to give any undertaken as to damages consequent upon which its application was refused by the trial Court.
Similarly, the Applicant has persevered in this breach by still failing to provide any undertaken as to damages in the present application before this Honourable Court. Referred to in paragraph 12 of the Counter Affidavit.
4.0 CONCLUSION
This Honourable Court is therefore urged to dismiss the Applicant’s Motion for injunction pending appeal and award cost to the Respondent against the Applicant in the sum of N 100,000.00 being the litigation.
DATED THE 5TH DAY OF MARCH 2012
LIST OF AUTHORITIES
INJUNCTION PENDING APPEAL BEFORE COURT OF APPEAL
(for first application to court of appeal. For second or subsequent application after refusal at High Court, use Order 7 rule 3 CA Rules, 2011. Where at High Court of Lagos, use Order 39 rule 1 Lagos.)
TAKE NOTICE that the Court of Appeal will be moved on the day of______2013, at the hour of 9’O clock in the fore noon or so soon thereafter as the applicant counsel on behalf of applicant can be heard praying for the following orders.
Dated this ______________day of___________2013