INJUNCTIONS
1. Nature of an injunction (Order 29 RSC)
An injunction is an order of the court either compelling a party to take a
certain step or steps (mandatory injunction) or restraining a party from
taking a specified step or steps (prohibitory). An injunction is therefore an
order directing a party, and occasionally, a non-party, to perform a certain
act or refrain him from performing a certain act in connection with the
ongoing litigation.
2. Types of Injunctions
Perpetual Injunctions:
(a) Injunctions may be further classified according to the period of time for
which the order is to remain in force. A perpetual injunction is a final
judgment, and for that reason is usually granted only after trial on the
merits. An interim injunction, by contrast, is a provisional measure
taken out at an earlier stage in the proceedings before the court has
had an opportunity to hear and weigh fully the evidence on both sides.
(b) Interim Injunctions
An interim injunction restrains the defendant, not until trial, but until
some specified date, if for some special reason it would be unjust to
protect the plaintiff beyond that date.
(c) Quia Timet Injunctions
1
A quia timet injunction is one which issue to prevent an infringement of
the plaintiff’s rights where the infringement is threatened but has not
yet occurred. The jurisdiction is one of long standing and exists in
relation to both perpetual and interlocutory injunctions, and to both
prohibitory and mandatory injunctions. The Plaintiff must show a very
strong probability of a future infringement, and that the ensuring
damage will be of a most serious nature.
3. Injunctions are only remedies, so they can only be granted if the plaintiff
has a substantive cause of action. Lord Diplock in the Owners of Cargo
Lately Laden on Board the Siskina v Distos Company Naviera SA (Siskina)
held that:1
“A right to obtain an [interim] injunction is not a cause of action. It
cannot stand on its own. It is dependent upon there being a pre-
existing cause of action against the defendant arising out of an
invasion, actual or threatened by him of a legal or equitable right of
the [plaintiff] for the enforcement of which the defendant is
amendable to the jurisdiction of the court. The right to obtain an
[interim] injunction is merely ancillary and incidental to a pre-
existing cause of action.”
4. The essential nature or character of an injunction is that it is a temporary
measure to maintain or preserve the status quo pending determination of
the disputed rights at trial.
5. Principles applicable to the issue of injunctions
1
[1979] AC 210.
2
5.1 The power to grant interim injunctions is at the discretion of the court,
and this should be exercised reasonably, equitably, and judiciously.
The exercise of the discretion is based on sound legal principles. The
following are the general principles and guidelines which will be taken
into consideration before an injunction is granted:-
(a) The first question to be addressed is whether or not a plaintiff has
raised a serious question, deserved to be determined at trial.
That is to say, the claim must not be frivolous or vexatious. If the
claim is frivolous or vexatious, the interim injunction will be
refused at the outset;
(b) If the Applicant has established a serious question to be tried, the
court will then consider whether or not the plaintiff will be
adequately compensated by an award of damages. If a plaintiff
can be adequately compensated, the interim injunction
application ought to fail, however meritorious the claim may be;
(c) In the event that there is doubt as to the adequacy of damages
and the ability of the defendant to pay them if the plaintiff were to
succeed at trial, the court will then proceed to the next stage, and
consider the balance of convenience;
(d) The balance of convenience test may be expressed in terms of
whether the risk of injustice if the interim injunction is refused,
outweighs the risk of injustice if the injunction is granted;
3
(e) Where the balance of convenience is evenly balanced, the court
will generally take such measures as may be necessary to
preserve the status quo.
6. APPLICATION FOR INJUNCTION
(1) An application for the grant of an injunction may be made by any party
to a cause or matter before or after the trial of the cause or matter
whether or not a claim for the injunction was included in that party’s
writ, origination summons, counterclaim or third party notice, as the
case may be.
(2) Where the case is one of urgency such application may be made
ex-parte on affidavit but, except as aforesaid, such application must be
made by motion or summons.
(3) The plaintiff may not make such an application before the issue of the
writ or originating summons by which the cause or matter is to be
begun except where the case is one of urgency, and in that case the
injunction applied for may be granted on terms providing for the issue
of the writ or summons and such terms, if any, as the Court thinks fit.
7. Ex-parte injunction application
7.1 Where an application for the grant of an injunction is one of urgency
such application may be made ex parte on affidavit but, except as
aforesaid, such application must be made by motion or summons.
4
7.2 Ex parte applications are meant for cases of real urgency. Ngulube CJ
made the following instructive observation in the case of Shamwana v
Mwanawasa (1993 – 1994) ZR 149 (HC):
“The granting of the ex parte injunction is the exercise of a
very extraordinary jurisdiction, and therefore the time at which
the plaintiff first had notice of the act complained of will be
looked at very carefully in order to prevent an improper order
being made against a party in his absence, and if the plaintiff
has acquiesced for sometime, it will not be granted.”
8. Duty to make full and frank disclosure
8.1 A party applying for an ex parte interim injunction has a duty to make a
full, fair and accurate disclosure of all the material facts to the court.
The party must draw the court’s attention to significant factual, legal
and procedural aspects of a matter.
8.2 In R v Kensington Income Tax Commissioners, Ex Parte Princess
Edmond de Polignac,2 the following incisive observation was made:
“It is perfectly settled that a person who makes an ex parte
application to the court…. is under an obligation to the court
to make the fullest possible disclosure of all material facts
within his knowledge and if he does not make the fullest
possible disclosure, then he must not obtain any advantage
from the proceedings and he will be deprived an advantage
he may have already obtained by means of the order which
has thus wrongly been obtained by him.”
2
[1917] 1 KB 486 (CA) 509.
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8.3 The duty of disclosure applies not only to material facts known to the
plaintiff, but also material facts which he should have known, if he had
made proper inquiries.3
9. Discharge of an Interim Injunction
9.1 An Interim injunction granted ex parte, may on sufficiently cogent
grounds be discharged or waived on an application itself made ex
parte.4 Further, where an interim injunction has been granted
following a full inter partes hearing, there is no jurisdictional bar to the
court hearing an application by the enjoined party to discharge it. 5
Applications to discharge an interim injunction are made to the same
judge who granted the initial interim injunction.
10. Undertaking as to damages
10.1 As a condition for obtaining an injunction, a plaintiff must give (unless
the court orders otherwise) an undertaking to the court to pay any
damages sustained by the respondent that the court considers the
plaintiff should pay.6
10.2 The undertaking which is often referred to as “cross-undertaking” is a
promise to pay the defendant compensation if the plaintiff later fails to
establish his right to the interim injunction. The undertaking in
damages is given to the court, not to the party against whom the
3
Brinks Mat Limited v Elcombe [1988] 1 WLR 1350.
4
London City Agency (JCD) Limited v Lee [1969] 3 All ER 1376.
5
RSC Order 29, r1A(33).
6
Ibid. 442.
6
interim order is obtained.7 Accordingly, any failure to comply with the
undertaking is not a breach of contract, but will be punished by the
court through the remedies available for contempt. 8 However, the
court cannot compel a party to give an undertaking,9 it will refuse the
application if he declines to provide one.10
11. Penal notice
11.1 It is a pre-requisite for enforcement by way of committal (except in
cases of criminal contempt) that the defendant-11
(a) Has been served personally with a copy of the injunction indorsed
with a notice informing the alleged contemnor that disobedience
to it will render him liable to committal (penal notice); or
(b) Was present in court when the injunction was granted; or
(c) Has been notified of the terms of the injunction.
11.2 Note that Order 45, rule 7(7) of the RSC provides that:
“There must be prominently displayed on the front of the copy
of an order served under this rule a warning to the person on
whom the copy is served that disobedience to the order
would be a contempt of court punishable by imprisonment, or
(in the case of an order requiring a body corporate to do or
abstain from doing an act) punishable by sequestration of the
7
Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1974] 2 All ER 1128 1150.
8
Loughlin and Gerlis Civil Procedure 307.
9
Zuckerman Zucherman on Civil Procedure: Principles of Practice 443.
10
Loughlin and Gerlis Civil Procedure 307.
11
Bean Injunctions 155-156.
7
assets of the body corporate and by imprisonment of any
individual responsible.”
Read Sitima Tembo v National Council for Scientific Research (1988-89)
ZR Halsbury’s Law of England 4th ed Vol. 9 Para. 62
11.3 Detention, preservation, etc., of subject matter of cause or matter
(Order 29 r 2)
(1) On the application of any party to a cause or matter the Court
may make an order for the detention, custody or preservation of
any property which is the subject matter of the cause or matter, or
as to which any question may arise therein, or for the inspection
of any such property in the possession of a party to the cause or
matter e.g. Dispute relating to ownership to a car which is in the
possession of defendant.
(2) For the purpose of enabling any order under paragraph (1) to be
carried out the Court may by the order authorize any person to
enter upon any land or building in the possession of any party to
the cause or matter.
(3) Where the right of any party to a specific fund is in dispute in a
cause or matter, the Court may, on the application of a party to
the cause or matter, order the fund to be paid into Court or
otherwise secured e.g. rentals collected in respect of property
which is subject to ownership dispute.
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(4) An order under this rule may be made on such terms, if any, as
the Court thinks just.
(5) An application for an order under this rule must be made by
summons or by notice supported by an affidavit which must
specify or describe the property in issue.
11.4 Sale of perishable property, etc. (Order 29 r.4)
(1) The Court may, on the application of any party to a cause or
matter, make an order for the sale by such person, in such
manner and on such terms (if any) as may be specified in the
order of any property (other than land) which is the subject matter
of the cause or matter or as to which any question arises therein
and which is of a perishable nature or likely to deteriorate if kept
or which for any other good reason it is desirable to sell forthwith.
12. Interlocutory injunction in support of arbitral proceedings
12.1 A party may, before or during arbitral proceedings, request from a
court an interim measure of protection and, the court may grant such
measure.12
12.2 Upon such application a request as above, the court may grant-
(a) an order for the preservation, interim custody, sale or inspection
of any goods which are the subject matter of the dispute;
12
Order 29 Rule 1(2) of the Rules of the Supreme Court of England 1965.
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(b) an order securing the amount in dispute or the costs and
expenses of the arbitral proceedings;
(c) an interim injunction or other interim order; or
(d) any other order to ensure that an award which may be made in
the arbitral proceedings is not rendered ineffectual.13
13. Mareva Injunction
13.1 Ordinarily in an action in which the plaintiff seeks to recover his
property, the Court has jurisdiction to grant an interlocutory injunction
restraining the disposal of property over which the plaintiff has a
proprietary claim.14
13.2 The single most significant feature of the Mareva jurisdiction is that it
goes beyond this and enables the Court to grant the Plaintiff an
interlocutory order restraining the defendant from disposing of, or even
merely dealing with, his assets, being assets over which the plaintiff
asserts no proprietary claim but which after judgment may be
attached to satisfy a money judgment.15
13.3 A mareva injunction is essentially an injunction obtained against a
defendant restraining him from disposing of his assets inside or even
13
Section 11(2) of the Arbitration Act No. 19 of 2000.
14
Explanatory note 29/L/36 of the Rules of the Supreme Court of England 1965.
15
Ibid.
10
outside the jurisdiction in order to defeat any judgment which the
plaintiff has obtained or may obtain for a certain or approximate sum.16
13.4 In Mutuwila Farms Limited v Johan Nortje, Mambilima DCJ explained
the Mareva injunction in the following terms: the Court has jurisdiction
to grant an interim injunction to a plaintiff to preclude a defendant from
removing assets from the jurisdiction, where there is a danger that the
debtor may dispose of his assets to defeat the debt before judgment.
13.5 A Mareva injunction is a unique remedy that can be granted before or
after judgment. When granted before judgement, the Court, apart from
ascertaining whether the plaintiff has a good arguable case, is also
concerned with protecting assets from dissipation so as not to render
enforcement of a judgment nugatory. A plaintiff should give some
grounds for believing that there is a risk of the assets being removed
before the judgment is satisfied. It is not enough for the plaintiff to
assert that the assets will be dissipated. He must demonstrate this by
solid evidence.
13.6 When it come to Mareva injunctions; the principle of adequacy of
damages takes a back seat. What takes the front seat, so to speak, is
the possibility by a defendant to hide or dissipate, the assets so as to
make himself ‘judgment proof’.
16
Atkin’s Encyclopedia of Court Forms. (1991 Issie). Vol, 22: para 5 p. 61.
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1. Shell & BP Zambia Limited v Conidaris & Others17
The Supreme Court held:
“A Court will not generally grant an interlocutory injunction unless
the right to relief is clear and unless the injunction is necessary to
protect the Plaintiff from irreparable injury...”
2. Mutuwila Farms Ltd v Johan Nortje18
The Supreme Court at page 21 of the Judgment stated that:
“The law with regard to the grant of interlocutory injunctions is well
settled after the decision in the celebrated cases of American
Cyanamid Co. v Ethicon Ltd. The principles laid down in this case
are still good law. Our own decisions in the cases of Shell v BP
Zambia Limited, Turnkey Properties and Harton Ndove cited to us
by counsel for the Defendant endorse the Cyanamid principles and
have added to our jurisprudence on injunctions. One of the cardinal
principles in the grant of an interlocutory injunction is that the
applicant must show inter alia the he has an arguable case and that
if he is not granted relief, he will suffer from irreparable injury, that is
injury that cannot be atoned for by damages.”
17
(1975) Z.R. 174
18
(2010) 3 Z.R. 88
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3. Elmar Engineering Limited v Allegra Mining Zambia Limited19
In this case, the High Court granted an ex-parte order for a Mareva
injunction in favour of the plaintiff against the defendant. It was held on inter
parte hearing that:
“The test for the grant of a Mareva injunction is that: there
must be a debt due and owing; and there must exist a danger
that the debtor may dissipate or dispose of his assets so as
to defeat any judgment the Court may grant in favour of the
plaintiff.
The question whether or not there is a debt due and owing is
left for the main hearing. For now it is safe to say that the
endorsement in the summons suggests that this is the
position.
There is need for evidence to support the allegations of fear
of dissipation of assets; the sources and ground of the
allegations to enable the Court assess their strengths”
4. Finsbury Investments Limited & 3 Others v Antonion Ventriglia &
Another20
This was a notice of motion filed pursuant to rule 48 of the Supreme Court
Rules, Chapter 25 of the Laws of Zambia; Order 29, rule 1A/33 of the Rules
of the Supreme Court, and the inherent jurisdiction of the court. By the
notice of motion, the applicants sought to discharge the order of interim
injunction granted by the court on 21st April, 2010.
The Supreme Court held:
“It is trite law than an ex parte injunction is a temporary order which
is given subject to inter partes hearing. And the judge who grants it,
19
(2011) 2 Z.R. 68
20
(2013) 2 Z.R. 412
13
retains the discretion to dissolve it if after hearing the opposing side
it becomes obvious that it should never have been granted at the ex
parte stage or that its continuation is no longer necessary.
Once an interlocutory injunction is discharged, there is
nothing to stay, there is no court order in place which is
capable of being enforced. The parties revert to the original
positions in which they were before the injunction was
granted.
When a court grants an ex parte injunction which is later
dissolved, the only remedy remaining to that party applying
for it, is to appeal against such refusal. The appeal against
that refusal will be a fresh application before the full court
because a single judge of the court, has no jurisdiction to
grant an injunction.”
(Note the current position as decided in Afritec)
5. Turnkey Properties v Lusaka West Development Corporation &
Another21
In this case the Supreme Court held inter alia that:
(i) An interlocutory injunction is appropriate for the preservation
or restoration of a particular situation pending trial; and
(ii) That it is improper for a court hearing an interlocutory
application to make comments which may have the effect of
pre-empting the decision of the issues which are to be
decided on the merits to the trial.
Appeal against grant or refusal of Interlocutory Injunction
21
(1984) Z.R. 84
14
A party aggrieved by the decision the High Court to grant or refuse an order of
interlocutory injunction may renew the application before a single Judge of the
Court of Appeal.
However, where the decision is that of the perpetual injunction after trial the
aggrieved party ought to appeal to the Court of Appeal.
Afritec Asset Management Co. Ltd & Anr v The Gynae & Antenatal Clinic Ltd &
Anr SJ No. 11 of 2019
15