Nigerian Courts, Injunctions, And The Electoral ProcessBy Akinwole Ogunlola As we move closer to yet another election in our fledging democracy, the role of Nigerian Courts and their power to grant injunctions cannot be over emphasized. A judge is a public officer appointed to hear and decide legal matters in court. The judge conducts trials or presides over a court of justice and determines controversies between parties based upon evidence and legal argument presented. The judge is not an investigator, adviser, and neither is he expected to await important political telephone calls before arriving at a decision. Injunction is an equitable remedy in the form of a court order that either prohibits or compels ("enjoins" or "restrains") a party from continuing a particular activity. The party that fails to adhere to the injunction faces civil or criminal contempt of court and may have to pay damages or sanctions for failing to follow the court's order. At the very core of injunctive relief is recognition that money damages cannot solve every problem. An injunction may be permanent or temporary. A temporary injunction or preliminary injunction is a provisional remedy granted to restrain activity on a temporary basis until the court can make a final decision after trial. It is usually necessary to prove high likelihood of irreparable harm in the absence of a preliminary injunction before such an injunction may be granted; otherwise the party may have to wait for trial to obtain a permanent injunction. The effective resolution of electoral disputes is central to the integrity of any electoral process. Challenges to controversial outcomes or allegations of interference must be resolved in an impartial manner in such a way that the final results can be respected by the winner and loser alike. Although the Nigerian Constitution makes adequate provisions for Electoral Tribunals, for example, Section 285(1) provided inter-alia;
In the final analysis, electoral disputes will ultimately be resolved by the regular constitutional courts. According to Section 272(1) of the same constitution, the State High Courts shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. This means that the legality and constitutionality of the elections would finally be determined by these courts. Beyond this constitutional and traditional resolution of election disputes by the Courts, the power of these courts to grant injunctions during electoral process, particularly in Nigeria where everything and anything is possible, require that our courts recognize both the basis and underlying principles for granting injunctions with the overall goal of ensuring public confidence in Courts impartiality in the discharge of their constitutional responsibilities as well as maintaining the integrity of our electoral process. Where political, rather than legal considerations determine the grant of injunctions by our courts, as was the case during Babangida’s annulment saga, when Nigerian courts granted injunctions under the candle light, the ultimate result is lack of public confidence in the whole process. The power of the Court to grant an injunction is in equity. The Court will reserve its equitable powers for situations when there is no adequate remedy at law. The party seeking an injunction has the burden of demonstrating facts and circumstances warranting an injunction. The remedy of an injunction is a drastic one and ought to be applied with caution. In deciding whether to grant an injunction, the court must balance the benefit of an injunction to the plaintiff against the inconvenience and damage to the defendant, and grant an injunction which seems consistent with justice and equity under the circumstances of the case. In other words, once the court is satisfied that the underlying claim or request for an injunction should be taken seriously, the court will exercise its discretion according to “the balance of convenience”. The Court weighs the likely inconvenience or cost for the defendant if the injunction is granted. By this practice, the court is constantly balancing the risks of injustice. Because of this risk of injustice, the Courts, particularly during the electoral process, must be very strict not only on the underlining principles for granting an injunction, but also about the terms upon which these injunctions will be granted. For example, before an order is made, the court should make the claimant or petitioning party to undertake to adequately compensate the defendant for any loss or inconvenience caused by the injunction being wrongly granted. This is very important because injunctions represent serious restrictions on the rights of the other party. Our courts therefore have the responsibility to resolve election disputes in a manner that enhances public confidence in the integrity of the electoral process. With these constitutional provisions, it could be argued that the Courts have little or no business granting unnecessary injunctions during the elections because there are already adequate remedies in law for most of what our politicians seek to achieve through injunctions. For example, a plaintiff who demonstrates to the satisfaction of the Tribunal or Court that, vital electoral provisions were violated or not met by a particular candidate/group, can have the result set aside or have another candidate declared the winner. The right to challenge election results, or the validity thereof, before a Tribunal or the Regular Courts amount to adequate remedy at law, and an opportunity to repair any prejudice caused by alleged irregularity. Granting an injunction under these circumstances by a Court would certainly amount to abuse of power. The Courts can play a vital role during the elections as well as in the post-electoral period, ensuring that the will of the people is not overruled, as it was the case under the military dictatorship of Babangida and Abacha during the June 12 election crisis in 1993, when the executive overturned a presidential decision won by the late MKO Abiola. To perform its role effectively as the final arbiter of electoral disputes and to curb the excesses of the politicians, the court must posses both juridical expertise as well as political independence. More importantly, our Courts must resist the political or financial pressure and adhere strictly to the underlining legal grounds in their consideration of the grant of injunctions. Above all, the practice where our politicians walk around with candle sticks in their pockets, shopping for willing judges to grant frivolous injunctions in their bedrooms at night under candle lights must be discouraged. Application for, and the grant of injunction should not be guided by political considerations or a saving weapon in the hands of a losing political candidate. A preliminary injunction is an extraordinary and drastic remedy. Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572-73 (5th Cir. 1974). No injunction will issue if there is an adequate remedy at law. Arbitrary and wanton issuance of injunction orders by the Courts during the electoral process can only feed the mischief of the political class, fuel the chaos that usually characterize our democracy and above all, erode whatever confidence our people still have in the political/electoral process. Certain requirements must therefore be met by a party seeking an order of injunction from the Courts. For example, a) the applicant must demonstrate to the satisfaction of the Court that there is no adequate remedy at law for the type of injury he is complaining about, see Mathews v. Rodgers, 284 U.S. 521, 525 (1932); b) that he would suffer an irreparable injury if the injunction is not granted. It should be noted that temporary loss of income or other alleged injury involving only loss of money is not irreparable injury; c) the injury alleged must be immediate and non-speculative; d) there must be a convincing showing of irreparable injury, and mere litigation expense will not suffice. Above all, it must be pointed out that granting of injunction is not a matter of right and may be refused in the exercise of judicial discretion. In the exercise of its discretion a Court should pay particular regard for the public consequence in employing the extraordinary remedy of injunction. If an injunction will impair the public interest, it should be denied. Cf., Yakus v. United States, 321 U.S. 414, 440 (1944); see also Hecht Co. v. Bowles, 321 U.S. 321, 331 (1944). In addition, an injunction that is likely to impair public interest should not be granted exparte, i.e. without notice on the other side and the opportunity to respond or oppose the grant. That the successful implementation and resolution of election disputes affect the Nigerian public interest is not in doubt and it therefore calls for extreme caution on the part of our Courts before arbitrarily granting injunctions to the politicians. The success of our electoral process and emerging democracy to a large extent may therefore depend on the independence and integrity of our courts.
Akinwole Ogunlola (Attorney) Chicago, USA
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