CONDITIONS FOR GRANTING INTERIM AND TEMPORARY INJUCTIONS IN UGANDA

Temporary injunctions and interim injunctions/orders are different much as their enforcement maybe likely similar. An application for interim order is made by an applicant where there is a substantive application for a temporary injunction whose hearing is pending. Therefore, an application for an interim order is only made after an application for a temporary injunction has been made.

An interim injunction/order has been defined by Arach-Amoko, JA in HON. ANIFA BANGIRANA KAWOOYA V ATTORNEY GENERAL & ANOTHER MISC. APPLIC. NO. 46 OF 2010 that, “an interim injunction is a discretionary order issued by court for a short time, and usually to a particular date pending the determination of the main application.”

Powers to grant an interim order are derived from Sect. 98 of the Civil Procedure Act which provides court with inherent powers to make any such orders and Sect. 33 of the Judicature Act Cap 13.

The powers to grant a temporary injunction are derived from Sect. 38(1) of the Civil Procedure Act. An order of temporary injunction is granted so as to prevent ends of justice from being defeated as was noted in KYAGULANYI SSENTAMU V COMMISSIONER GENERAL OF URA MISC. APPL. NO. 150/2021.

HERE ARE THE CONDITIONS FOR GRANTING A TEMPORARY INJUCTION.      

Odoki CJ (As he was then) in E.L.T KIYIMBA KAGGWA VERSUS HAJI ABDU NASSER KATENDE [1985] HCB 43 laid down the rules regarding the granting of a temporary injunction where he noted that, “The granting of a temporary injunction is an exercise of judicial discretion and the purpose of granting it is to preserve the matters in the status quo until the question to be investigated in the main suit is finally disposed of.”

The conditions are as follows;

1. That the applicant must show a primafacie case which has a likelihood of success. Hon. Lady Justice Esta Nambayo in KAGUMAHO KAKUYO VERSUS SHILLA NINSIIMA MISCELLANEOUS APPLICATION NO. NO. 13 OF 2020 noted that the court must be satisfied that the dispute presented in the main or head suit is not a sham but a genuine dispute and that the Applicant has probabilities of succeeding in the main suit. Court in VICTOR CONSTRUCTION WORKS LTD V UGANDA NATIONAL ROADS AUTHORITY HCMA NO. 601OF 2010 noted that a prima facie case with a probability of success is no more than that the Court must be satisfied that the claim is not frivolous or vexatious or in other words that there is a serious question to be tried.
2. That such an injunction will not normally be granted unless an applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Court in KIYIMBA KAGGWA V HAJJI ABDU NASSER KATENDE [1985] HCB 43 explained that irreparable injury does not mean that there must not be physical possibility of repairing the injury but that means that the injury must be a substantial or material one that one cannot be adequately compensated for in damages.
3. If the court is in doubt and the above have not been proved then it may decide the application on a balance of conveniences. In VICTORIA CONSTRUCTION WORKS LTD VERSUS UGANDA NATIONAL ROADS AUTHORITY HMA NO. 601 OF 2010 the High Court while citing the decision in J. K. SENTONGO VS. SHELL (U) LTD [1995] 111 KLR 1; by Justice Lugayizi observed that if the applicant fails to establish a prima facie case with likelihood of success, irreparable injury and need to preserve the status-quo, then he/she must show that the balance of convenience was in his favour.

CONDITIONS FOR GRANTING AN INTERIM ORDER

The conditions for granting an interim order were laid down by Hon. Justice Joseph Murangira in GAPCO UGANDA LTD –VS- KAWEESA & ANOR MISC. APPLIC. NO. 259 OF 2013 and other different cases and these are as follows:

1. The applicant must prove the existence of a prima facie case with the likelihood of success.
2. The applicant must also prove the existence of an imminent threat of danger or likelihood of suffering an irreparable loss or damage.
3. That the applicant’s right or freedom is being violated. (See. ASHOGBON –VS- ODUNTAN (1935) 12 N.L.R. 7)
4. That there is a pending application before the court which has a likelihood of success. Under Order 50 Rule 3A(3) of the CPR (As Amended) its provided that, “The Court shall only consider the hearing of an application for interim relief where there is a pending substantive application with a likelihood of success”.

It should be noted that the granting of an interim order or temporary injunction is made in order to preserve the statusquo until the substantive application for a temporary injunction or main suit (respectively) is settled. (See. GUILIANO GARIGGIO V CLAIDIO CASADIO CIVIL APPLICATION NO. 03 OF 2013). Hon. Justice Remmy Kasule in HUMPHREY NZEYI VS BANK OF UGANDA AND ATTORNEY GENERAL CONSTITUTIONAL APPLICATION NO.01 OF 2013 observed that an order to maintain the status quo is intended to prevent any of the parties involved in a dispute from taking any action until the matter is resolved by court.

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