A lecture note on as a discretionary equitable remedy ancillary to a substantive claim.
An injunction is a discretionary order of the court restraining the commission or the continuance of some wrongful act or the continuance of some omission; it is also an equitable remedy. It should be noted that an injunction is not a substantive relief, it is an ancillary relief which is attached to an actual action and on the facts that you have claimed – Per Lord Diplock in Siskina v Distos Compania Naviera SA HL(The Siskina case) 1979 “It presupposes the existence of an action actual or potential claiming substantive relief which the High Court has to grant and to which the orders referred to are but ancillary” and this was recently held by Hon. Mr. Justice Desmond B Edwards in the case of Wilfred Coker v Dolcie Songo Brown 2008 Cc 120/08 reported in The types of injunctions are as follows:
Mavera Injunction – This was established in the case of Mareva Cia Naviera SA v. International Bulkcarriers SA. A was granted in a case where a has brought an action against a foreign and the latter has money or within the jurisdiction which, if he were not prevented from doing so, he would be free to remove out of the jurisdiction before the plaintiff could bring the action to trial, and if successful, obtain and enforce a judgment against him. The purpose is to ensure that there will be property of the defendant available out of which judgment obtained by the plaintiff can be satisfied. A mareva injunction is interlocutory and not final but available . Speed is a critical component. It is granted wherever it is just and convenient to do so. A plaintiff must satisfy the test in American Cyanamid; he must have good cause and the balance of convenience must favor the grant of the injunction. The guidelines considered by the courts are -
1) The plaintiff must have an arguable case.
2) The injunction must not be limited to money but goods.
3) The injunction is used to compel a defendant to provide security.
The plaintiff himself must make full and frank disclosure of all material facts. The particulars of the claim must be stated; it’s not frivolous and vexatious.
Anton Piller Orders
Prohibitory – Negative – Don’t do Mandatory – Positive – Do – precautionary These injunctions could take the form of Interim – This is usually done before commencement of the action and it can be done ex – parte, in which case it lasts for 7 days and if not renewed it lapses – Order 35 rule 1(9) and (10).
It should be noted that an ex – parte order lasts for 7 days, if you don’t renew it expires. Interim injunctions are much more than ex – parte orders. All ex – parte applications should be supported by an with full and frank declaration of facts because an ex – parte application could be set aside if full and frank disclosure is not made at the time the application is made to the court. If you have a matter of urgency you can go ex – parte and the order if granted would be served on the other party and after 7 days when the other party goes to court (is present) it becomes an inter - parts, at that stage you can apply to the court for an pending the start of trial at which stage counsel can apply for the interlocutory order. However it should be noted that one application can pray for: Ex – parte, Interim, Interlocutory Injunctions do not necessarily have to come by ex-parte applications, for it to qualify ex parte; the should prove: urgency, fear, that the defendant is a foreigner etc Interlocutory Injunction – It lasts for the duration of the trial. That is from when the trial begins up until final judgment is delivered by the Court.
Ex – parte
Perpetual injunction – finally disposes the rights of the parties and is final until is it a appealed; it is granted after the substantive matter is settle between the parties as was held by E.E. Roberts J.A in the case of Kamara v Kamara Cc. 270/07 2007 SLHC 38 reported at Applications for injunctions should be made by notice of motion supported by an affidavit.
The locus classicus case on determining whether to grant an injunction was set out by Lord Diplock in American Cyanamid Co v. Ethicon Ltd 1975 AC 396 and they are:
1. Is there is serious question to be tried Under this heading the court would look at the plaintiff’s chances of success but not necessarily determining their rights at this moment. The court has to be satisfied that the action is not frivolous or vexatious (Order 21 rule 17 (1) (b) (c.
2. Where the balance of convenience lies After 1 above, the next issue for determination is the inconvenience or hardship the defendant could face if the in junction is granted against him or if it would be plaintiff that would be inconvenient if the injunction is not granted. In the case of Sam Sumana v Attorney General and Foh 2014 SLSC reported at Justice A Showers in the case Hajallie v Sulaiman 2009 cc 183/09 reported at the court held that though there is a serious question of law to tried it would be inconvenient on the part of the defendants if the injunction was granted. It should be noted as was also held by the Supreme Court in the case of A.P.C V NASMOS 1999 SLSC at equitable remedies are not available against the state and the state by virtue of the State Proceedings Act 200 it involves state officials also.
3. Adequacy of damages If the two stated above are met, the question of the adequacy of damages arises, if damages would be enough to compensate the plaintiff injunction would not be granted by the Court. In the case of Wafta v Barrie Civ. App. 62/2005 SLCA 3 G. Gelaga King J.A held that damages recoverable at common law….would be adequate remedy and the would be in a financial position to pay them…I opine that the balance of convenience lies in not granting the injunction that is sought…I, therefore, refuse to grant the injunction and will dismiss the application…” The inconvenience or hardship that he (defendant) would endure would also be an argument against the granting of the injunction.
In Nicol v Thompson, 1937-49 ALR S.L. 365 (18 Halsbury’s Laws of England, 2nd ed., at 14, para. 20), Beoku Betts, Ag. C.J stated that the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. But the right to recover damages will not deprive the plaintiff of the remedy by injunction if his right cannot be properly protected or vindicated by damages.
When the test has be applied by the court and the plaintiff has shown cause in all three then the plaintiff would be asked by the court to make an undertaking as to damages pursuant to Order 35 Rule 9 of the High Court Rules 2007, this is to compensate the defendant if at the end of the trial such in junction granted ought not to have been granted in the first place.
CASES
An Injunction can be set aside if there is no full and frank disclosure of facts – Frazimex Ltd v Guaranty Bank (SL) Ltd and Attorney General (applicant) DB Edwards J In the Sierra Leonean case of Momodu Jalloh v Alusine Kargbo 2005 cc 348/05 it was held by A Showers J where the substantive matter has to be proved that the case has a degree of success before interlocutory injunction is granted but not necessarily determining or resolving the main issue.
In the Sierra Leonean case of Hussein Abess Musa (for and on behalf of the ) v. Musa Abess Mousa and Others 2006 C.C 745/06 S 2006 M No.
33 Hon Mr. Justice A.B. Halloway RULING delivered this 22nd day of February 2007, the principles of the American Cyanamid case was applied to grant the Petitioner/ Plaintiff injunction restraining the 2nd Defendant/Respondent whether by himself, his servants, agents, privies or howsoever called from continuing the construction of a dwelling house or doing any unlawful act or from further interfering with the piece or parcel of land. But note that as was held by Justice N D Alhaidai in the case of Suma and Others v Bazzy and Sons Civ App 10 1998 that if the guidelines are not applied, an injunction could be set aside.
In the case of Solomon v Aboud S.C 1950 – 56 ALR SL 21 it was held that the discretion to grant an injunction should be exercised with caution. Note however that your substantive claims (, damages for and recovery of possession) be strong and have a high chance of success.
In the case of Jones and Others v Costom Printers and Others CC 132/08 2008 JNO.10 presided over by D.B Edwards the Court did not grant an injunction because it was more likely to hurt the defendant.
it was held by Kingdom CJ in Kabba v Young 1937 – 49 ALR (SL) 245 that an interlocutory order or judgment is not final not final and does not finally determine the rights of the parties but gives direction for the working out of these rights one step still remaining o perfect the judgment. So meaning even after the injunction would have been granted it presupposes that the plaintiff must succeed in his substantive claims in order for the injunction to be perpetual.