WHAT YOU NEED TO KNOW ABOUT TEMPORARY INJUNCTIONS VIS-À-VIS PUBLIC INTEREST

Temporary injunctions also referred to as interim injunctions are orders made by a court prior to final determination of the merits of a legal case in order to restrain a party from going ahead with course of are granted at the discretion of the court.

In granting these injunctions court is very cautious because compliance with the order usually has effects both economic and institutional consequences for the respondent. 

 The case of Shiv construction versus Endesha Enterprises Ltd, civil Appeal no.34 of 1992, court discussed conditions that must be met  by an applicant for a temporary injunction that is – the applicant must show a prima facie case with a probability of success , that the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages and  the  balance of  convenience is in favour of the Application.

This not withstanding, when public bodies are involved and therefore public interest is at stake, the courts might look at it differently. Justice Ssekanna Musa ably discussed this in misc application N0.744 of 2019 arising out of Misc Cause No.398 of 2019 ALCOHOL ASSOCIATION OF UGANDA & NILE BREWERIES LTD V. THE ATTORNEY GENERAL & UGANDA REVENUE AUTHORITY, whose ruling was delivered on 5th November 2019.

BRIEF BACKGROUND OF THE CASE

The applicants filed an application seeking that an injunction issue against the respondent  under Order 41 Rule 1 and 9 of the Civil Procedure Rules. The grounds in support of this application were that the second respondent by a notice addressed the applicant members informing them about a digital tracking solution at their premises  and the requirements for the equipment as well as the adaptive features to facilitate digital taxing system .the applicants opposed to this taxing system which required that all their products acquire a digital stamp with effect from 1st November 2019 they contended that implementing this system would have adverse costs on them and therefore the first respondent should be stopped from implementing the same. The respondents averred that this was a creation of statute and the applicants therefore could not oppose it and thereby stop them from performing their statutory duty that had not been deemed unlawful.

Judgment.

In delivering his judgment Justice Ssekkanna Musa referred to 0rder 41 rule 1 of the civil procedure rules and the case of Shiv Construction versus Endesha Enterpreises Ltd  discussed above.

 However in contrast with the above case the learned justice emphasized that the courts should be slow in granting injunctions against government projects which are meant for the interest of the public at large. He stated that public interest is one of the paramount and relevant considerations for granting or refusing to grant or discharge an interim injunction. He further stated that the courts should be reluctant to restrain the public body from doing what law allows it do . the rationale for this is that is that the courts cannot as matter of law grant an injunction  which will have the effect of suspending the operation of legislation. He in summary therefore held  public interest considerations would justify the refusal to grant a temporary injunction and public interest should prevail over private rights. The application thereby failed and it was dismissed.

Relevance

While it is established  from the above discussion that courts should exercise their discretion judicially when dealing with interim injunctions there is even greater caution when public interests are at stake. Public interest will almost always prevail over interests of few private individuals unless it is shown that there is an illegality involved. so while the main objective of the interim injunction is to maintain the status quo the courts are very careful not to interfere with the works of government or public bodies by retraining them with injunctions preventing them from performing their duties.

 As such when the interests to be protected are from one individual against the other and the conditions stipulated in the Shiv case are met then go ahead and apply for that injunction however when the public interest question comes into play think twice about that application.

Leave a Reply

Your email address will not be published. Required fields are marked *