Equity and Trusts Lecture Notes

Lecture 4 UCU LLB II

6/02/2014
© Sostine Ngabirano 2014

INJUNCTIONS

An injunction is an order of court directing a party in a proceeding to do or refrain from doing a

specified act.

An interlocutory injunction is an injunction that is limited so as to apply only until a final

determination by court of the rights of the parties and accordingly it issues in a form that requires
that in absence of a subsequent order to that contrary, it should continue up to but not beyond
the final hearing of the proceedings. In other words an interlocutory injunction is an order issued
during a trial to maintain the status quo or preserve the subject matter of the litigation until the trial is
completed.

The court has power to grant an injunction in all cases in which it appears to the court to be just
and convenient to do so to restrain any person form doing any acts.

S.64 Civil Procedure Act provides that, in order to prevent the ends of justice from being
defeated, the court if it so prescribes may grant a temporary injunction and in the case of
disobedience, commit the person guilty of it to prison and order that his or her property should
be attached and sold. An injunction is derived from a pending suit and its main purpose is to
maintain the status quo of the parties.

A right to obtain an interlocutory injunction is not a cause of action and it cannot stand on its
own. It is dependent upon there being a preexisting cause of action against the defendant arising
out of an invasion actual or threatened legal or equitable right of the plaintiff for the
enforcement of which is amenable to the jurisdiction of the court.

The general principles governing the grant of temporary injunction have been laid down in
several cases for example Robert Kavuma V Hotel International SCCA 8/1990 and Kiyimba
Kaggwa V Haji Katende [1985] HCB 43.

The Ugandan decisions in grant of temporary injunction have been decided with the guidance of
the holding in the case of American Cyanamid V Ethicon Ltd (1975)AC 396 which stipulates
that the court should as a general rule have regard only to the following criteria:-

 Whether there is a serious issue to be tried.

 Whether damages are an adequate remedy
 Where does the balance of convenience lie?
 Whether there are any special factors.

In the case of Kiyimba Kaggwa V Haji Katende (1985), Odoki J noted that the basis of granting a
temporary injunction as being an exercise of judicial discretion and the purpose of granting it is
to preserve matters of status quo until the question to be settled in the suit is finally disposed of.
He set conditions for the grant of a temporary injunction as:-

-The applicant must show a prima facie case with a probability of success.
Equity and Trusts Lecture Notes
Lecture 4 UCU LLB II
6/02/2014
© Sostine Ngabirano 2014

-Such an injunction will not normally be granted unless the applicant might suffer irreparable
injury /damage which would not be adequately compensated or atoned for by award of
damages.

-If the court is in doubt, it will decide the application on a balance of convenience.

On an Application for a Temporary Injunction, the tests for Court to consider were laid out in
the “locus classicus” case of Giella –Vs- Casman Brown[1973] EA 358 (CA)1.

 The Applicant must show prima facie case with a probability of success.
 Secondly, a temporary injunction will not normally be granted unless the Applicant might
otherwise suffer irreparable injury, which cannot be compensated by an award of damages.
 Thirdly, if the Court is in doubt, it will decide the application on the balance of convenience.
Read the case of Issa Kikungwe & 4 Others Vs Standard Bank Investment Corp & 3
Others (2004) at page 14 (Unreported). I will send it via email.

It is important to note that reference to the term prima facie case has been attacked as misleading
to the litigants and courts since at the time of application it’s hard for the court to establish a
prima facie case which is merely based on affidavits where parties have not been subjected to
cross examination. It is always difficult at this stage for a court to form an opinion on the merits
of the case and yet after the full trial the court may come to a different conclusion. Some courts
have opted to use the yardstick in American Cyanamid case (supra) of whether or not there is a
serious issue to be tried rather than a prima facie case.

In the case of Daniel Mukwaya V Administrator General HCCS 630/1993 , Byamugisha J

noted 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.

Irreparable damage or injury is another ground for a temporary injunction which the applicant
must show to court. Irreparable injury does not mean that there must be physical possibility of
repairing the injury but means that the injury must be substantial, that is, one that cannot be
adequately compensated for in damages as was noted in the case of Giella V Cassman Brown
and Co. Ltd (1973) EA 358. (MUST READ THIS CASE)

Where other factors are equally balanced, then the court should ensure that the status quo is
preserved. Status quo means existing state of affairs before a particular point of time. Before
maintaining the status quo, the court should consider other circumstances which have to be taken
into account. Where the status quo has changed, then it is doubtful that the temporary injunction
will serve any purpose as it may mean preserving the changed state of affairs or in the alternative
the court may rewind the clock to the status quo before the breach.

1
See also the case of E.L.T Kiyimba-Kaggwa –Vs- Haji Abdu Nasser Katende [1985] HCB 43
Equity and Trusts Lecture Notes
Lecture 4 UCU LLB II
6/02/2014
© Sostine Ngabirano 2014

Interim Injunction

When a party files an application for a temporary injunction, the court may take time to hear
such an application due to the backlog of cases. It is prudent therefore that a person makes
another application arising out of the main application. This second application is called an
interim injunction. The purpose is to ensure that the status quo does not change before the
application for temporary injunction is heard. An interim injunction application is by notice of
motion accompanied by an affidavit setting out the urgency of the application and why it must
be heard ex parte.

The courts in recent times have shifted from granting ex-parte interim injunctions and insisted
that the application for an interim injunction be heard inter parties since sometimes it does not
affect the main application. This procedure was abused since parties would mislead court in the
absence of the other party. Courts have insisted on inviting the other party to be present and
where possible file an affidavit in reply.

Vitiating factors

Duty of disclosure – a party is under duty to make full and frank disclosure of all facts which are
material to the proceeding including those facts which the defendant might have been expected
to bring forward in opposition to the injunction. Any material non-disclosure by the applicant is
a ground for discharging an injunction without hearing the merits.

Duty to apply promptly – an application for application must be made promptly since it is of
essence that certain injunctions be issued without delay. Delay is a relevant factor in interlocutory
proceedings since the status quo which is to be preserved may be changed.

Fraud and unclean hands – the courts will always deny the applicant an interlocutory injunction
if the application contains an element of fraud. In addition interlocutory injunction is an
adequate relief for which a person who seeks equity from court must come with clean hands.

Injunctions against third parties

An interlocutory injunction can have effect over and beyond the ambit of the immediate dispute.
Therefore any act in breach of an injunction by a person who is not a party to the matter before
court could still amount to contempt of court if in carrying out the act, the person intends to
impede or prejudice the administration of justice. Where the injunction is oppressive or interferes
with the rights of 3rd parties it may be discharged. O.41 r.4 provides for the discharge of an
injunction and the wide interpretation of the order allows third parties to make such application.

Injunctions against government

Under the Ugandan laws, an injunction whether temporary or permanent cannot be issued
against government as provided under S.14 (1) (a) of the Government Proceedings Act.
Equity and Trusts Lecture Notes
Lecture 4 UCU LLB II
6/02/2014
© Sostine Ngabirano 2014

This provision of the law is premised on the fact that government machinery should not be
brought to a halt and should not be subjected to embarrassment. However in the case of
Osotraco Ltd V A.G HCCS 1380/86, decided in 2002, court held that an injunctive relief or
eviction order could issue against government. This decision differed from the earlier position of
the law which was set out in A.G V Silver Springs Hotel SCCA No.1/89, where the Supreme Court
held that an injunction could not issue against government.

Similarly the constitutional court followed the same reasoning in Osotraco and issued an
injunction against government in the case of Dr. James Rwanyarare and Other V A.G.
Constitutional Petition 7/2002 reported in [2003] 2 EA 664.
Similarly in applications for judicial review an injunction can issue against government and its
ministers. The courts in a proper case can issue injunctive relief where the government and its
officers were exceeding their authority or were acting without jurisdiction.

Assignment
Research on the different types of injunctions and read the cases cited above in full for a clear
understanding of the topic.