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