Pre-Trial Judgements And Remedies- Injunctions
An injunction is an on order of the court directing a party to the proceedings to refrain from doing a specified act. It is usually granted in cases where monetary compensation will afford no adequate remedy to the injured party.
Interlocutory Injunction
An interlocutory injunction is an injunction that is limited so as to apply only until the final determination by the court of the rights of the parties and accordingly it issues in a form that requires that in the absence of a subsequent order to the contrary it should continue up to but not beyond the final hearing of the proceedings.
An interlocutory injunction is determined from a pending suit and likewise there must be a cause of action to sustain the suit from which the application will be delivered.
The above position was reiterated in the case of Sugar corporation of Uganda ltd v Mohammed Tijani H.C.C.S No.39/1993.
Accordingly, Order 41 rule 1 Civil Procedure Rules provides that:
“Where in any suit it is proved by affidavit or otherwise:-
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) that the defendant threatens or intends to remove or dispose of his or her property with a view to defraud his or her creditors, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”
It is imperative to note that a pending suit must be before the same court as it was noted in the case of Mwaine Nyakama & company Advocates V Departed Asians [1987] HCB 91.
The application for the interlocutory relief is not itself a cause of action as the right to the interlocutory relief is also not a cause of action in itself.
Lord Diplock noted in the case of Skina (1979) AC 210 that a right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a per-existing cause of action against the defendant arising out an invasion, actual or threatened by him or her of legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court.
At the core of injunctive relief is recognition that monetary damages cannot solve all problems. An injunction may be permanent or it may be temporary. A temporary or an interlocutory 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 the high likelihood of success upon the merits of one's case and a 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 right to obtain an interlocutory injunction is merely auxiliary and incidental to the pre existing cause of action. Therefore, the right to an interlocutory injunction cannot exist in isolation but is always incidental and dependent on the enforcement of a substantive right which normally takes the shape of a cause of action.
General Principles Applicable for the Grant of an Interlocutory injunction.
An injunction will normally be granted to restrain the defendant or plaintiff from acts alleged to be in violation of the plaintiff or defendant’s rights. When deciding as to whether or not to grant an application for an interlocutory injunction, the leading decision is the case of American Cynamide Co. Ltd V Ethicon Ltd (1975) AC 396, which stipulates that the court should as a general rule have regard only to the following criteria:
2.Are damages an adequate remedy?
3. Where does the balance of convenience lie?
4. Are there any special factors?
It should be noted however that this criteria should be read in the context of the principle that the discretion of the court should not be fettered by laying down any rules which would have the effect of limiting the flexibility of the remedy.
Justice Odoki as he then was, noted in the case of Kiyimba Kaggwa V. Hajji Katende (1985) HCB 43 that the granting of a temporary injunction is an exercise of judicial discretion and the purpose of granting it is to preserve matters in status quo until the question to be investigated in the suit is finally disposed of. Court further noted the conditions for the grant of an interlocutory injunction as being first and foremost that the applicant must show a prima facie case with a probability of success.
Secondly, such injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated or atoned for by an award of damages.
Thirdly, if the court is in doubt, it will decide an application on the balance of convenience. refer to Robert Kavuma V. Hotel International SCCA No.8/1990
Prima-Facie Case
The applicant must show that he or she has a prima-facie case in the pending suit with a probability of success in that pending case.
However, the use of the term prima-facie is contentious and confusing since the grant of a temporary injunction involves the exercise of granting the same by the use of the discretionary power of the court. It is impossible at the interlocutory stage for court to know the prospects of success of either party and it would only be embarrassing to the court to ultimately try the case with a pre-conceived mind. However, the courts have preferred to use the term serious issue to be tried. This seems a straight forward yardstick in determination of such a case to allow the applicant to benefit from an interlocutory injunction.
Justice Byamugisha as he then was noted in Daniel Mukwaya V. Admin. General HCCS 630/93 that the applicant has to satisfy court that there is a serious question to be investigated and that he has a reasonable chance of succeeding in the main suit. Its open to court to decide that there is a serious question to be tried if the material available at the interlocutory hearing fails to disclose that the plaintiff has any prospect of succeeding in his action for a permanent injunction at the trial. Therefore, a serious question to tried can only arise if there is evidential barking for it. The court at this stage shouldn’t try to resolve conflict of evidence of affidavits as to the facts from which the claims of either party may ultimately depend, not to decide difficult questions of law which call for detailed arguments and mutual consideration. These are matters that have to be dealt with at the trial.
Unless the court takes the view that the claim has no prospect of succeeding, it should go on to consider the balance of convenience and the nature of injury for damages.
Irreparable Injury or Damages.
If the applicant is to suffer irreparable injury, then an injunction ought to be granted. Irreparable injury doesn’t mean physical possibility of repairing the injury but it means that the injury must be substantial or material one, i.e. one that cannot be adequately compensated for in damages. In the case of American Cynamide Co. V Ethicon, Lord Diplock explained that the Court should first consider whether, if a plaintiff were to succeed at the trial in establishing his right for a permanent injunction, would be adequately compensated for the loss as a result of the defendant’s continuing to do what was sought to be enjoyed between the time of application and the time of the trial if the damages in the measure are recoverable, then at court, that would be adequate remedy and the defendant would be in a position to pay for them. Then no interlocutory injunction should be granted however strong the plaintiff’s claim may appear at this stage.
In addition, if on the other hand, damages will not provide an adequate remedy for the plaintiff, in the event of him succeeding at the trial, the court would then consider whether on the contrally if the defendant were to succeed at the trial, he would be adequately compensated under the plaintiffs undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of application and the time of the trial.
The decision to grant to refuse an interlocutory injunction will cause to whichever party who is unsuccessful in the application some disadvantages which this ultimate success at the trial may show that he ought to have been spared.
The extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies.
Damages will not be adequate under the following circumstances.
Where the defendant would be unable to pay them.
Where the damage is non pecuniary in case of many actions for nuisance.
Where the harm complained of is irreparable e.g. loss of the right to vote.
Where the quantum of damages would be difficult to assess i.e. loss of good will.
Balance of convenience.
Another factor to consider before the grant of an interlocutory injunction is the balance of convenience. Sir Robert Meggary quoted in the case of Caryne V Global Natural Resources P.L.C (1984) 1 ALLER 225.
"It stated that the balance of convenience is a phrase which of course is always used in this type of application. It is if I may say so useful shorthand but in truth, the balance that one is seeking to make is more fundamental, more weighty than mere convenience. I think that it is quite clear from both cases that though the phrase may be well substantiated , the balance of risk of doing an injustice better describes the process involved".
Sir John Donaldson M.R expanded on the same theme in the case of Francome V Mirror Group Newspapers (1984)1 WLR 892.
"I stress once again that we are not at this stage concerned to determine the rights of parties. Our duty is to make such order as is appropriate pending the trial of the action though it is sometimes said that this involves weighing of the balance of convenience, this is an unfortunate expression".
Our business is justice, not convenience. We can and must disregard fanciful claims by either party. Subject to that, we must contemplate the possibility that either party may succeed and must do our best to ensure that nothing occurs pending the trial which will prejudice their right. Since the parties are usually asserting inconsistent claims, this is difficult but we have to do our best. In so doing, we are seeking a balance of justice and not convenience.
Status Quo
If other factors are equally balanced, it’s prudent to take such measures that are calculated to preserve the status quo. Status quo means, simply the existing state of things, before a particular point in time. The most crucial point in determining the status quo is to ascertain the period or the point in time which is to be preserved.
The status quo may mean the existing state of things at the date when the defendant or respondent did the act or the first act which is alleged to have been wrongful or the date when the plaintiff applicant first learned of that act or the date when the summons were issued.
Therefore, the relevant point of time for purposes of the status quo may vary in different cases. In the case of Elisa Musoke V Almada Kezaala (1987) HCB 81, Court noted that the main purpose of granting a temporally injunction is to maintain the status quo and in determining whether or not to maintain the status quo, other circumstances had to be taken into consideration. Where the status quo has changed, then it’s doubtful if the interlocutory injunction will serve any purpose as it may mean preserving the illegality or the breach of the wrongful act. Unless court can clearly reverse the wrong that has been done before hearing the matter which in some cases may involve some hardship to innocent third parties.
In the case of Garden Cortege foods limited V Milk Marketing Board (1984) AC 130, it was noted by court that for the purpose of deciding whether an interlocutory injunction should be granted to preserve the status quo, that court should consider the status quo as the state of affairs existing during the period immediately preceding the issue of summons and in respect of a motion for an interlocutory injunction, the period immediately preceding the motion.
An order in the nature of an interlocutory/ interim injunction restrains the respondent only until after a named day or further order in fewer days. This order is granted ex parte pending the hearing of the main application for an interlocutory order. The rationale for this is to ensure that the status quo doesn’t change during the period before the application for temporary injunction is heard. A registrar/ judge or magistrate may grant this interim order.
Procedure
An interim injunction is made by notice of motion accompanied by an affidavit containing the following additional matters. That the facts relied on justified the application being made ex parte and should show that an injunction is necessary and that the matter is urgent. The details of any answer asserted or likely to be asserted by the respondent to the substantive claim. If the respondent learns of the hearing of the ex parte application, he may oppose the application and where an order has been made he may apply ex parte for discharge of variation, before the hearing inter parties.
Vitiating factors.
A party seeking an interlocutory injunction is under the following duties before the application is heard.
Duty of disclosure;
A party is under a duty to make full and frank disclosure to contracts which are material to the proceedings including those facts which a defendant might have been expected to bring forward in opposition to the injunction.
Material non disclosure by the applicant is a ground for discharging an ex parte injunction without any haring in the merits of the application.
Duty to apply promptly;
An application for an ex parte interim injunction must be made promptly since its of the essence of such an injunction that it is to be issued only in cases of urgency.
Delay is a relevant factor in interlocutory proceedings as injunction relief. In other words, the applicant should not sleep on his rights.
Fraud and unclean hands:
The courts will always deny the application for an interlocutory injunction if such application contains an element of fraud or the applicant comes to courts with dirty hands.
An injunction is an equitable remedy in the form of a court order, whereby a party is required to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for failing to follow the court's order. In some cases, breaches of injunctions are considered serious criminal offences that merit arrest and possible prison sentences.
Rationale behind Injunctions
This injunctive power to restore the status quo ante; that is, to make whole again someone whose rights have been violated, is essential to the concept of fairness (equity). For example, money damages would be of scant benefit to a land owner who wished simply to prevent someone from repeatedly trespassing on his land.
Tags : Civil Procedure