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The meaning of Pleading, cases and example

criminal , evidence
Qn:
The plaintiff, a limited liability company is a prosperous manufacturer of cooking oil in East African Region. It has sued your client, a natural person, in the High Court of Tanzania (commercial Division) for unpaid portion of the purchase price of cooking oil. What course or courses of action will you take on behalf of the defendant before the hearing in a following alternative?

  1. The registered office of the Plaintiff Company is located in Nairobi, Kenya.
  2. The plaintiff has not, to date, filed reply to the defendant’s counterclaim.
  3. The defendant dies before the date of hearing.

 

OUTLINE


1.0 INTRODUCTION

2.0 CAUSES OF ACTION TO BE TAKEN ON BEHALF OF THE DEFENDANT

A. THE REGISTERED OFFICE OF THE PLAINTIFF COMPANY IS LOCATED IN NAIROBI, KENYA
B. THE PLAINTIFF DOES NOT FILE THE REPLY TO THE DEFENDANT’S COUNTERCLAIM
C.  DEFENDANT DIES BEFORE THE DATE OF HEARING 

3.0 CONCLUSION

4.0 REFERENCES

         

  1. INTRODUCTION

 

The hearing of the parties can be effectively done when the pleadings are complete. It is from the pleadings that the court will frame the issues, and it is from the issues that the court may hear the parties and make decision basing on evidence presented before the it. Pleading is a matter, which normally occupies the attention of the parties to the suit in the early stages. O. VI, r. 1 of the Civil Procedure Code (hereinafter to be referred as the CPC) defines pleading as the plaint, written statement of defense and the reply to the written statement of defense and any other documents which is submitted to the Court in the process of preparing the suit. Pleading is a legal term consisting of documents and art of drafting such documents. Pleadings are not evidence but mere allegations, which will have to be supported by evidence.


The facts of the questions are as follows “the plaintiff, a limited liability company is prosperous manufacturer in East Africa Region. It has sued your client, a natural person, in high court of Tanzania (commercial Division) for unpaid portion of the purchase price of cooking oil.”
We have been asked as to what cause of action we will take on behalf of the defendant before the hearing in the following alternative situations?
a. The register office of the plaintiff company is located in Nairobi Kenya
b. The plaintiff has not, to date, filed reply to the defendant’s counter claim
c. The defendant dies before the date of hearing.
Part two of this work discusses the cause of action in the above-mentioned alternative situations, part three is the conclusion and part four is bibliography.



  1. CAUSES OF ACTION TO BE TAKEN ON BEHALF OF THE DEFENDANT

2.1 The Registered Office of the Plaintiff Company is located in Nairobi, Kenya
Since the registered office of the Plaintiff Company is outside Tanzania, he will be required to pay the security for costs. According to O.XXV r, 1(1) of the CPC If the plaintiff is residing outside Tanzania and that such plaintiff does not posses any sufficient movable property within Tanzania other than the property in the suit, the court may,  either on its own motion or on the application of the defendant, order the plaintiff within a time to be fixed by the court, to give sufficient security for payment of all costs incurred and likely to be incurred in the suit by the defendant. The case of Farrab Incorporated .v. Brian J Robson and others[1] reiterates this principle, where the defendant to the suit filed in Kenya made an application for security for costs on the ground that the plaintiff was a corporation registered and having place of business at Moshi, Tanganyika. The court granted the application.


2.2 The Plaintiff has not filed reply to the Defendant’s Counter Claim. 
In this situation we urge the court to pronounce the judgement in favour of plaintiff upon such proof of the claim as per O VIII r 14 of the CPC. The law requires that where any party has been required to present a written statement under sub rule 1of rule 1 or a reply under rule 11 fails to present the same within twenty one days, the Court shall pronounce judgement against him or make such order in relation to the suit or counter claim, as the case may be, as it thinks fit. It is worthnoting that counter claim is taken as a plaint against the plaintiff and the plaintiff is required to reply in terms of O. VIII r, 11. In the case of Joe Rugarabamu .v. Tanzania Tea Blenders[2], the respondent filed a written statement of defence along with a counterclaim. The appellants failed to respond to the counterclaim within time. Before the suit was held on merit the respondent applied for judgement to be entered on the counterclaim under O. VIII r, 11 and r, 13 of the CPC. The trial judge granted the application and entered judgement on the counterclaim. On appeal against the judgement on the counterclaim the court held that “failure to file a reply to counterclaim within twenty one days contravened O. VIII r, 11 of the rules of CPC”.

2.3 The defendant dies before the date of hearing
In this situation we will apply to the court to have the legal representative of the deceased defendant joined to the suit. According to O. XXII r, 4(1) of the CPC, if a defendant dies and the right to sue survives against him the court on an application made on that behalf will cause the legal representative of the deceased defendant to be made a party to the suit and will then proceed with it.



  1. CONCLUSION
With regards to the above discussed circumstances, we conclude that the courses of action to be taken in the first instance is for the defendant to apply for the plaintiff to pay security of costs equivalent to the costs incurred or likely to be incurred. In the second situation where the plaintiff fails to reply to the defendant’s counter claim, the judgement will be entered in favour of the defendant. Where the defendant dies before the date of hearing the law provides for the rights to be represented.



REFERENCES
1. Civil procedure code cap 33





Citations
[1] (1957) E.A 441
[2] [1990] TLR 24
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The principles of joinder of parties and Third-party procedure

criminal , evidence
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Qn:   Asha was seriously injured when traveling as a front passenger in car driven by Juma, which was involved in a head-on collision with a car driven by Adam.  Asha contemplates filing a suit for damages.  Both vehicles were insured by National Insurance corporation Ltd.  In his reply to the demand note Juma denies liability and blames Adam.  In his defence Adam denies liability alleging his vehicle skidded on a wet road and further alleges Asha was contributorily negligent in not wearing a seat belt.  Asha has already lost earning of Tshs. 50,000 a month over last month and is unlikely to return to work for at least 8 months.  She has used up all her savings and is rapidly sinking into debt.

Advise Asha on, whom to sue and the principles that will be applied.


1.0     INTRODUCTION

The general rule is that no person is compelled to join as plaintiffs or defendants with others in one suit.  However, the law makes provisions for those who want to sue jointly to do so because we are operating an adversarial system, which system presupposes an individualistic approach to complaint; in other words, under adversarial system the parties to proceedings are masters of the procedure.


Joinder of parties has one intention, that of avoiding a multiplicity of suits; and it is in the interest of the public that litigation should come to a speedy end.  Whether one is going to need the same evidence if several suits were brought, it is in this case advisable to join the parties.  Also to minimize the costs of proceedings or litigation as well as saving time of the courts are reasons behind joinder of parties.

The court has the duty to control the action; it may order a splitting up of the parties when it is of the opinion that the causes of action would not be conveniently tried together, for example the plaintiff would be embarrassed when the suits are going to be tried jointly.  Order 1 rule 2[i] gives the court such a power, that is, “court may put plaintiff to an election or order the splitting of the suit.  Putting the plaintiff to an election means the plaintiff is made to chose who should remain in the suit or who should go.  This is absolute discretion by the court but to be exercised judiciously, only after the court is satisfied that the joinder of the suit would delay the proceedings or that the plaintiff is going to be embarrassed.


  1.          Main body
The question in hand involves who are parties to a suit; the principles of joinder of parties and Third-party procedure.  To attempt the question the following issues will assist to set the scope of the answer:
          (i)     Whether Juma and Adam can be parties to a suit to be filed by Asha
(ii)      Whether Juma and Adam can be jointly sued in a single suit
iii)    Whether the National Insurance Corporation, the insurer of the two motor vehicles can be brought into the same suit.


2.1     Parties to a suit 

For any civil litigation to exist there should be opposing parties, and there has to be a dispute, that is, subject matter in dispute.  There has to be also a cause of action and a claim for relief.

Where there are opposing parties, the one in whom the cause of action rests is called the ‘plaintiff’, and the one who against him/her the relief is sought or claimed is termed as the ‘defendant’.  Out of these two categories there are two types of parties in any civil litigation, namely ‘necessary parties’ and ‘proper parties’.

A necessary party to civil proceedings is that party in whose absence no effective order can be give.  He is a person, if plaintiff ; and if defendant, he is a party against who a relief is sought.  To establish whether a party is a necessary party the important question is whether the court may issue effective order in his absence or not.  This is because the purpose of civil litigation is to issue an effective order; to avoid a possibility of issuing an empty decree.  There is a formulation of the categorization found in Saha: “The Code of Civil Procedure” 1908 p. 263 that:
          “A necessary party is one without whom no order can be made
          Effectively and the proper party is one in whose absence an effective
          Order can be made but whose presence is necessary for a complete
          And final decision on the question involved in the proceedings.
          Against a necessary party there must be a right to some relief in respect
          Of the matters involved in the proceeding in question, it must not be
          Possible to pass an effective decree in the absence of such party.  The test
          For determining effectiveness of a decree is whether a decree can be
          Executed without the presence of the party in question as regards the
          Property sought to be decreed in favour of the plaintiff.”


Without dwelling much on the parties, in a summary, it can be said that, two principles can be stated in respect of the concept of parties to suit, that is to say:  All necessary and proper parties have to be before the court so as to facilitate the effectual  determination of the matter in dispute – meaning joinder of parties.  Furthermore, to avoid a multiplicity of suits all disputes or questions arising between such parties should, as far as possible, be determined in one action – joinder of causes.

The above principles being applied in the question in hand, and on determing the first issue, it can be said that, Juma and Adam, in their reply to Asha’s demand note disputed Asha’s claims, hence they are the opposing parties.   Asha on one side, that is, a plaintiff, and Juma and Adam on the other side, that is, defendants.  Between these parties there is a dispute, that is, liability to Asha’s injuries caused by the motor vehicle accident involving the two motor vehicles, one driven by Juma and the other driven by Adam.  There is a cause of action and Asha can claim damages for the injuries she sustained and compensation for loss of income.
In view of the above, it is my considered view that Juma and Adam are the proper parties (defendants) to be sued by Asha as they are persons whose presence is necessary for a complete and final decision on the question involved in the claims.  Asha is a necessary party on the side of plaintiff for she is the one in who the cause of action rests.  It is not mentioned in the given  material facts whether Juma and Adam  are also the owners of the motor vehicles.  Had it been that they are mere drivers, and that there are different people claimed to be owners of the motor vehicles or employers of the two, the following advice could have been added, that is, those owners should also be made parties, that is, they are the necessary parties to the suit because in their absence no effective order can be given.  Otherwise, if Juma and Adam are both drivers and owners of their vehicles, then each of them will be both proper and necessary party because an effective judgment can be obtained against each of them and presence of each is necessary for a complete and final decision on the question involved in the proceedings.  The first issue is therefore answered in the affirmative.


2.2        Joinder of Defendants   
As said above, a person may sue on his own behalf, but subject to certain conditions, several persons may sue jointly.  Similarly, a person may be sued alone, but again subject to certain conditions, several persons may be sued jointly in a single suit.  I will now proceed to examine the circumstances in which there can be proper joinder of defendants,

All persons may be joined as defendants against who, a right to relief, in respect of or arising out of, the same act or transaction or series of acts or transactions, is alleged to exist, whether jointly, severally or in the alternative; where if separate suits were brought against such persons, any common question of law or fact would arise.[ii]  It is not necessary for the joinder of defendants that every defendant should be interested as to all the reliefs claimed in a suit against him, or as to every cause of action included in any proceeding against him.[iii]  In other words, it is immaterial that the causes of action against the defendants are different.  A plaintiff is entitled under this rule to join several defendants in respect of several and distinct causes of action.  Where the court is of the opinion that the joinder would embarrass a defendant or put him to unnecessary expense, it will order separate trials

As a general rule, then, where claims against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to make it desirable that the whole of the matter be disposed of at the same time, a court will allow the joinder of the defendants subject to its discretion as to how the action should be tried.[iv]  It was held in an English case of Payne  v.  British Time Recorder[v]in which Scrutton, L.J., stated, at page 393:

          …Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance inproportion to the rest of the action to render it desirable that the whole of the
          matters should be disposed of at the same time, the court will allow the joinder
          of plaintiffs or defendants subject to its discretion as to how the action should
          be tried.

The second issue is whether Juma and Adam could be jointly sued in single suit.   As stated above, a plaintiff is not compelled to sue any defendant.  It is the plaintiff who chooses who to sue.  However, the law allows him/her to join defendants under circumstances as given under Order 1 rule3.[vi]    Defendants may be joined if the right of relief against them arises out of the same act or transaction, or a series of acts or transactions.  If separate suits were brought against defendants common question of facts or law may arise, that is, whether you are going to need the same evidence against all the defendants.


2.2.1   Interpretation of ‘common question of law’
The position of Order l rule 3 (supra) is construed liberally.  It implies that the question of law is common but the liability of defendant may be separate or general.  In the case of Harwood v. Statesman Publishing Coy Ltd,[vii] the judge stated:
            “You must look at the language of the rules and construe them
             liberally and where there are common question of law or fact
involved in different causes of action, you should include all
parties in one action subject to the discretion of the court if such
inclusion is embarrassing, to strike out one or more of the parties.
It is impossible to lay down any rule as to how the discretion of the
court ought to be exercised.  Broadly speaking where claims by or
against different parties involve common questions of law or fact
bearing sufficient importance in proportion to the rest of the
action to render it desirable that the whole of the matters should be
disposed of at the same time, the court will allow the joinder of
plaintiff or defendants subject to the courts discretion as to how
the action should be tried.”
How to give a liberal construction of rule, the above case gives a clue, that is, common questions of fact or law to bear the same evidence.  But the court has the final say to order joinder or strike out.

The case of Abdullah Mohamed v. The official Receiver[viii] adopts Horwood’s position in theoretical basis.  On practical basis consideration should be the case of Stroud v. Lawson[ix], in which conditions were given on joinder of parties, in other words, these have to be satisfied: 

(i)      There must be joint interest in the relief (for plaintiffs) or against the reliefs (the defendants; and 

(ii)    To avoid a misjoinder of parties there should be same defendants in respect of joinder of plaintiffs and same plaintiffs in respect of defendants. 
Chitty, J. stated the principle as follows:
“It is necessary that both these conditions should be fulfilled, that
Is to say, the right to relief alleged to exist in each plaintiff should
be in respect of or arise out of the same transaction and also there
should be common question of law or fact in order that the case
will be within the rule.”


The case was dealing with joinder of plaintiffs but can be disposed to the joinder of defendants too.  It should be noted that the two conditions must exist jointly, that is, they are complementary not exclusive.  (Both of them must be there, neither can stand alone).  You look at nature of the cause of action or basis for the cause action, which vests in every one of them separately.  Then look whether you are going to need the same evidence.

In the case at hand, the basis of cause of action which vests in Juma and Adam is that both being drivers of two different motor vehicles were involved in a head-on collision which resulted to seriously injuring Asha; the injuries which caused Asha to suffer loss of earnings and further unlikely to return to work for at least 8 months.  This is a cause of action which vests in each one of them separately.  There is a common question of fact, the liability of the drivers involved in the head-on collision of the motor vehicles.  Basing on the facts of the case given, it is my considered view that there is a joint interest against the relief  (the defendants, that is Juma and Adam)  The two of them separately denied liability of causing injuries to Asha, hence, under Order 1 rule 3 they can jointly be sued. 

In the case of Peter & Co. Ltd.  v. Mangalji & Others[x] the  court was interpreting Order 1 rule 3 (supra) in pari material with Order 1 rule 5 of Uganda Civil Procedure law.  Sherridan, J. pointed out points to be satisfied before joinder of defendants as follows: 

(i)     The right to relief in respect of or arising out of the same act or transaction or a series of acts or transactions must be alleged to exist whether jointly or severally, and  

(ii)         The suit must be one where if separate suits were brought against such persons any common question of law or fact will arise.


It is my view that Asha’s right to relief is in respect of or arising out of the same act, that is, causing injuries and damages through careless driving by the two drivers, which resulted to head on collision.  The suit is one where if separate suits are filed against each of them common fact and law will arise, that is, who is liable.


There is another position which also may allow Asha to sue the two jointly even if she is not sure of who is her correct defendant.  This is found under Order 1 rule 7.[xi]  According to this provision of law she may join all people she may think are liable to her and leave it to court to decide who to sue.  This has an advantage that the people who will appear before the court they would show why they should not be joined, hence Asha would not fail to realize his relief.  However there is a disadvantage in respect of expenses; the one who will be struck out will make her suffer costs payable to him.  Also the impression that she will show to court may create a feeling to the court that she is not master of her own law. 

In the result therefore, the second issue is also answered in the affirmative.


2.3       Third Party Procedure

In this paragraph, I will endeavour to discuss though in brief the principles of third party procedure so as to determine the third issue as to whether the National Insurance Corporation, the insurer of the two motor vehicles can be brought into the same suit.
Third Party Procedure  is available to the defendants only and it has to fall within the four corners of Order 1 rule 14.[xii]  The party brought in by defendant is not an ordinary party to the suit and the plaintiff has no quarrel with him; not original party.  It is a procedure which facilitate the conduct of two suits simultaneously (at the same time), that is to say, original suit brought by plaintiff and the second suit brought by defendant against third party.  It was based on Equity but the Judicature of 1881 made the Common Law also to apply it.  Its rationale are as follows, that is to say, third party is based on the political position that, as far as possible all matters relating to the subject matter of the suit should be determined in one suit.  It is also based on public policy that as far as possible multiplicity should be avoided.  By enacting third party procedure into civil procedure facilitate the bringing of a third party who is not sued by plaintiff.  Third party procedure therefore, has the effect of saving the time of court and time of parties by allowing the claim of defendant to be entertained simultaneously.  All the facts surrounding the case are put into court at the same time.  There will be no possibility of conflicting decision.
The above rationale of the third-party procedure is stipulated in the case of Standard Securities Ltd.  v.  Hubbard & Another Tele Insurance Ltd Third Party.[xiii]  Penny Cuick, J. in this case stated the objects of third-party procedure that:
          “The objects of the rule are to prevent multiplicity of actions, to enable the court
           to settle disputes between all parties to them in one action and to prevent the
same question from being tried twice with possibly different results.”


Let us take one example.  A sues B for damages to his house resulting from a motor accident between two vehicles driven by B and C.  In such a case, B may apply for a third-party notice against D, his insurance company, because B’s claim against D is connected with the subject matter of the suit between B and A and relates substantially to the relief claimed by A from B.

In order that a third party may lawfully be joined in a suit the subject matter between the third party and the defendant must be the same as the subject matter between the plaintiff and the defendant and the original cause of action must be the same.  This was so held in the case of Yafesi Walusimbi  v.  A-G.[xiv]  This case was elaborated in the case of Edward Kironde Kagura v.  Casta Pereira,[xv] also the case of Overseas Touring (Road Services) Ltd.  v.  Arica Produce Agency.[xvi]  According to the two cases, third party procedure is limited to claims for contribution or indemnity only.  In the case of Kironde (supra) the right to indemnity arises mainly out of a contract but it is not confined to contracts.  That is a general situation.  But in East Africa there has been some modification.  The courts have accepted the position that a joint tort feasor proceedings can be introduced in cases of right to indemnity or contribution.  This is by virtue of the case of Champion Motor Spares Ltd v.  Barclays Bank D.C.O and Another.[xvii]


In England we obtained a summary on the above situation in Birmingham & District Land Co.  v.  London and North Western Rly Co.[xviii]  This case was interpreting the provision of Order l6 rule 48 of the Supreme Court Practice which is similar to our Order 1 rule 14 (supra).  According to  that case, “in order to bring a case within Order 16 rule 48 (equivalent to Order 1 rule 14 (supra)) it is not enough that if the plaintiff succeeds the defendant will have a claim against the third party but defendant must have against the third party a direct right of indemnity as such which right must generally if not always arise from a contract express or implied.”


In the case of Parry v. Carson[xix] we can find a general rule that, so that a third-party action can be competent the defendant must show that in case he is found liable to the plaintiff then he has a right to recover against a third party.  He shows that in his affidavit and in his pleadings.  Such a possibility exists only when the subject matter is the same, that is, it is possible when there is a direct connection.  In this case the judge said,
          “In order to bring himself within the ambit of Order 1 rule 14 the
          applicant must show upon the face of his pleadings and upon his
          supporting affidavit that he would be entitled to indemnity from the
          third party in respect of the amount which the plaintiff claims from him
          in the event of that claim being successful.”


This conclude the discussion on point of law concerning third party.  In practice an application to file a Third Party Notice is made ex parte, that is, in the absence of the plaintiff and it must be supported by an affidavit.  Order 1 rule 14 (2) (supra) does not indicate the method of application; hence, we fall back to Order XL111 rule 2 (supra), that the application is by way of a Chamber Summons supported by affidavit.

In the above circumstances and basing on the principles of law therein, I advise the would-be defendants, that is, Juma and Adam, that upon being sued by Asha and after filing their defence, they should also file an application by way of Chamber Summons under Order 1 rule 14 (2) (supra) and any other enabling law, for leave to produce a third-party notice.  Such an application must be supported by an affidavit which should state, inter alia, the nature of plaintiff’s case, stage to which the proceedings have reached, nature of defendants’ claim against the third party.  It should also state the relationship between the defendants and the third party- all those in terms of Order 1 rule 14 (supra).  This procedure under Order 1 rule 14 (supra) is intended to save time of the court and to minimize costs.  In the final result then the third issue will therefore, have been answered in the affirmative.


  1. Conclusion
In the above discussion it was attempted to show the basis of an advice to Asha on whom to sue and the principles that will apply.  From the discussion therefore, Asha is advised to sue Juma and Adam for damages and loss of earnings caused by injuries she sustained from the accident caused by the two.  The advice has been extended to the proposed two defendants that, because the two vehicles were insured by the National Insurance Corporation Ltd., they should seek to bring into the suit a third party on grounds of indemnity from the third party in the event the defendants are held liable.







































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The concept aspects of temporary injunction.

civil , criminal
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Qn:  The remedy of temporary injunction is the most abused remedy in the hands of courts. This is because the courts have so far failed to establish any credible rules of law for guiding judicial discretion in the granting of temporary injunctions.

                               
OUTLINE:

  1. INTRODUCTION.
  2. THE CONCEPT OF TEMPORARY INJUNCTION.
  3. CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED.
  4. PRINCIPLES GOVERNING TEMPORARY INJUNCTIONS.
5.0WHETHER THE REMEDY IS ABUSED BY COURTS FOR FAILURE TO ESTABLISH RULES GUIDING COURT DISCRETION IN GRANRING THE SAME.
  1. CONCLUSION.
  2. BIBLIOGRAPHY.


  1.     INTRODUCTION.

An injunction is a judicial remedy prohibiting persons from doing a specific act called a restrictive injunction, or commanding them to undo some wrong or injury called a mandatory injunction, and may be either temporary, interim or interlocutory, or permanent. Order 37 deals with temporary injunctions.

Generally, in civil procedure law, injunctions are of two kinds, temporary and perpetual. Injunction being in the nature of a preventive relief is generally granted taking note of the equity. However, the court has no jurisdiction to grant by way of interim relief what could never be granted in the main suit itself. Also, an injunction can only be granted by a competent civil court and not by any revenue authority under a tenancy law or by an election tribunal which is not a civil court.[1]


  1.     THE CONCEPT ASPECTS OF TEMPORARY INJUNCTION.

Temporary injunctions are restraints orders against a party or property of a party before the suit or matter is finally determined.
The injunction is called temporary, for it endures only until the suit is disposed of or until the further orders of the court. A temporary or interim injunction may be granted on an interlocutory application at any stage of a suit.
Order 37 rule 1 of the civil procedure code stipulates that;

Where in any suit it is proved by affidavit or otherwise; 
 -that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit of or suffering loss of value by reason of its continued use by any party to the suit,  wrongly sold in execution of a decree; or
That the defendant threatens, or intends to remove or dispose of his property with view to defraud his creditors, The court may, by order grant a temporary injunction to restraint such act or make such other order, for the purpose of staying and preventing the wasting, damaging, alienation, sale, loss in value, removal or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders.


Similarly, in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed or not, the plaintiff may, at any time after the suit has been filed, and either before or after judgement, apply to the court for a temporary injunction to restrain the defendant from committing such breach of contract or injury complained of, or any breach of contract or injury of a like nature arising out of the same contract or relating to the same property or right[2].

If the court is satisfied that the defendant might commit the breach or injury complained of by the plaintiff, it will grant the temporary injunction sought on such terms as it thinks fit. In a recent case of M/S Empire Properties Ltd v Kinondoni Municipal Council[3] whereby the defendant wish to demolish Masaki Building Complex which would cause irreparable damage to the plaintiff. In order to avoid such damage the court granted temporary injunction.

In addition, in making orders of temporary injunctions the court may order such term as to the keeping of accounts and giving security.

Orders of temporary injunction may be made ex parte as provide under order 37 rule 4. The court must in all cases direct notice of the application to be given to the opposite party. The court before whom such an application is made can only proceed ex parte where it appear that the giving of such notice would cause undue delay and that such undue delay would defeat the object for which the application has been made as shown in Hans Wolfgang Golcher v G. Manager Morogoro Canvas Mill Ltd[4]  Maina, J stated that;

“…the rule that the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application to be given to the opposite party is mandatory… If the opposite party can be served without delay, as was the position in this case, an ex parte injunction should not be issued.
” 
The same was insisted in the case of Tanzania Knitwear Ltd. V Shamshu Esmail[5].


3.0     CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED.

These can be found under order 37 rule 1 of the Civil Procedure Code. Where in any suit it is proved by affidavit or otherwise;

  • 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;
  • That the defendant threatens or intends, to remove or dispose of his property with a view to defraud his creditors.
  • That the defendant threatens to disposes the plaintiff or otherwise causes injury to the plaintiff in relation to any property in dispute in the suit;
The court may, by order, grant a temporary injunction to restraint such act or make such other order, for the purpose of staying and preventing the wasting, damaging, alienation, sale, loss in value, removal or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders.


  1.     PRINCIPLES GOVERNING TEMPORARY INJUNCTIONS.

The granting of a temporary injunction under the power conferred by this (rule) is a matter of discretion. True, it is a matter of judicial discretion. But if the court which grants the injunction rightly appreciates the facts and applies to those facts the true principles, then that is a sound exercise of judicial discretion.[6] In the case of Ibrahim v Ngaiza[7] it was held that; it a question of discretion of the court, which discretion must be exercised judicially by appreciating the facts and applying them to the principles governing issuance of temporary injunctions.

The court can grant a temporary injunction in exercise of its inherent powers under section 95. Where a suit was dismissed for default and application was made for the restoration of the suit, though Order 37 rule I cannot be involved, yet the court can grant an interim injunction under section 95 in the interest of justice.

The court in granting temporary injunction must first see that there is a bonafide contention between the parties, and on which side, in the event of success, will lay the balance of inconvenience if the injunction does not issue. Or as stated in the judgment of Cotton LJ in Preston v. Luck,[8] to entitle a plaintiff to an interlocutory injunction, the court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a probability that a plaintiff is entitled to relief. The real point upon an application for a temporary injunction is not how the question ought to be decided at the hearing of the case, but whether there is a substantial question to be investigated and whether matters should not be preserved in status quo until that question can be finally disposed of.

Furthermore, where a perpetual injunction is sued for, and the plaintiff applies for temporary injunction, the court should grant a temporary injunction if the effect of not granting such an injunction will be to deprive the plaintiff forever of the right claimed by him in the suit. The object of injunction is to preserve status quo. In issuing a temporary injunction, the tests to be applied are:

(i)        Where the plaintiff has a prima facie case;
(ii)      Where the balance of convenience is in favour of the plaintiff; and
(iii)   Whether the plaintiff would suffer an irreparable injury if his prayer for temporary injunction is disallowed. 

The phrases ‘prima facie case’, balance of convenience’, and irreparable loss’ are words of width and elasticity to meet myriad (countless/multitude) situations presented by man’s ingenuity in given facts and circumstances but they must always be hedged with a sound exercise of judicial discretion to meet the ends of justice.[9]

A prima facie case implies the probability of the plaintiff obtaining relief on the material placed before the court. Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case. For establishing a prima facie case, it is not necessary for the party to prove his case to the hilt (as much as possible) and if a fair question is raised for determination, it should be taken that a prima facie case is established.[10]

The plaintiff must establish that the balance of convenience in the event of withholding the relief of temporary injunction will, in all events exceed that of the defendant in case he is restrained. The plaintiff must also show a clear necessity for affording protection to his alleged right which would otherwise be seriously injured or impaired. The principle of balance of convenience implies the evenly balancing of scales.

The term ‘irreparable injury’ means injury which is substantially and could never be adequately remedied or atoned for by damages, injury which cannot possibly be repaired.[11] It implies a substantial and continuous injury for which there does not exist any standard for ascertaining the actual damage likely to be caused. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one that cannot be adequately remedied or compensated by way of damage. Diversion of funds from a charitable organization is held to be an instance of irreparable injury.[12]

Application of these principles was shown in the case of Hans Wolfgang Golcher v General Manager of Morogoro Canvas Mill Limited[13]. In the case, the court accepted the appellant submissions that the ex-parte temporary injunction was issued against known principles governing temporary injunctions.  Learned counsel submitted that an applicant for an interim injunction must establish a prima facie case with a probability of success and that the facts must show that if a temporary injunction is not granted, the applicant would suffer irreparable injury which cannot be adequately compensated by an award of damages.  He cited the case of Giella v Cassman Brown H and C. Ltd [1973] EA 358 at page 360.

Under O 37, r 1 the court has the power to grant an ex parte order, however the same should be granted only under exceptional circumstance. The factors which should weigh for the grant of exparte injunction are:

  • Whether irreparable or serious mischief will ensue to the plaintiff;
  • Whether refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
  • The time at which the plaintiff first had notice of the act complained of;
  • Whether the plaintiff had acquiesced for some time;
  • Whether the application is made in utmost good faith; and
  • In any case, an ex parte order even if granted must be for a limited period of time.

The general principles of balance of convenience, prima facie case and irreparable loss would also be considered by court.

The principles on the bases of which application for temporary injunctions are granted or refused are well settled in the case of Attilio v Mbowe[14], George, CJ restated the principles in the following terms:

It is generally agreed that there are three conditions which must be satisfied before such an injunction can be issued:
i)            There must be a serious question to tried on the fact alleged and a probability that the plaintiff will be entitled to the relief prayed,
ii)        That the courts interference is necessary to protect the plaintiff from the kind of injury which may be irreparable before his legal right is established, and 
iii)        That on the balance there will be greater hardship and mischief suffered by the plaintiff from withholding of the injunction than will be suffered by the defendant from the granting of it…the court must be satisfied that the damage which the plaintiff will suffer will be such that mere man compensation will not be adequate.

He added that a temporary injunction will normally be granted only if the whole point of the perpetual injunction claimed will be defeated if the temporary injunction is not granted.

The case of T.A. KAARE v GENERAL MANAGER MARA COOPERATIVE UNION[15] presented the same view. The court held inter alia;

…Before granting a discretionary interlocutory injunction the court should   consider:
          (a)   Whether there is a bonafide contest in between the parties.
        (b)  On which side, in the event of the plaintiff's success will be the balance of inconvenience if the injunction does not issue, bearing in mind the principle of retaining immovable property in status quo.
          (c)  Whether there is an occasion to protect either of the parties from injury known as "irreparable" before his right can be established. "Irreparable Injury" means that the injury will be material i.e. one that could not be adequately remedied by damages.


4:0   WHETHER THE REMEDY IS ABUSED BY COURTS FOR FAILURE TO ESTABLISH RULES GUIDING COURT DISCRETION IN GRANTING THE SAME.

It is our observation, as we have discussed earlier that granting temporary injunction is the matter of court discretion. Having such discretions, the court however is initially required to act judicially. Moreover, there are laid down principles which the court must abide with when exercising the discretion. These were discussed with under part 4 of this work.
Likewise, Ex parte orders of temporary injunctions must not be made at the whim of a court. Rule 4 of Order 37 of the Civil Procedure Code provides for the issuance of notice of the application to the opposite party. This was also discussed under part 2 of this paper.

The granting of a temporary injunction under the power conferred by this (rule) is a matter of discretion. True, it is a matter of judicial discretion. But if the court which grants the injunction rightly appreciates the facts and applies to those facts the true principles, then that is a sound exercise of judicial discretion.[16]

Temporary injunction is a matter of discretion which, has to be judicially exercised.[17] In the case of Ibrahim v Ngaiza[18] it was held that; it a question of discretion of the court, which discretion must be exercised judicially by appreciating the facts and applying them to the principles governing issuance of temporary injunctions.

Injunctions and stay orders should not be granted mechanically without realising the harm likely to be caused to the opposite party and it is not proper to burden the other party by saying that the other party can get the stay order vacated as stated in DDA v Skipper Construction Co. (Pvt) Ltd[19].

From the foregoing discussion, we are of the opposite view from the view presented in the question. The courts establish principles which the court has to apply while exercising discretion on granting temporary injunction. In circumstances which the court grant the same without regarding those rules, and where the party is dissatisfied with the injunction order, he can make application to se aside the order. This is provided for under rule 5 of order 37 of the civil procedure code. In India injured party has the right to appeal against the order. A court of appeal may interfere with an order relating to injunction where the action is arbitrary or passed without consideration of the ingredients necessary for the grant of injunction[20].


  1. CONCLUSION.

In several instances, like in granting orders of temporary injunctions, courts are vested with discretionary powers. It is a rule of law that discretionary powers of the court should be applied judicially while regarding the circumstances of the case .Courts should not be guided with self-interests. In such circumstances, courts have been trying to establish principles which will guide the court while exercising discretion.


[1] Mohd Siraj Ahmad  V.State Election Commission AIR 2000 Gau 101
[2] . Order 37 Rule 2(1) of C.P.C.
[3] . Civil Case 2006 (Unreported)
[4] . (1987) T.L.R. 78.
[5] . (1989) T.L.R 48.
[6] White CJ in the case of Subba V. Haji Badsha (1903) ILR 26 Mad 168,174.
[7] .(1971) HCD n. 249.
[8] (1887) 27 CD 497,506; Babu Rameshwar Prasad Singh v. Md Ayyub AIR 1950 Pat 527.
[9] Dalpat Kumar V. Prahlad Singh AIR 1993 SC 276
[10] Gadadhar Mishra v Biraja Devi AIR 1999 Ori 49
[11] Multichannel India Ltd v Kavitalaya Productions Pvt Ltd  AIR 1999 Mad 59
[12] Gadadhar Mishra v Biraja Devi AIR 1999 Ori 49
[13] Supra
[14]  (1969) HCD n.284.
[15] (1987) TLR  n. 17
[16] White CJ in the case of Subba V. Haji Badsha (1903) ILR 26 Mad 168,174.
[17] Attorney General V Maalim Kadau and  16 Others
[18] .(1971) HCD n. 249.
[19] . (1996) AIR SC 2005.
[20] . UP Awas Evam Vikas Parishad v N.V Rajagopalam Acharya (1989) AIR 125 at pp 127-29.
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