Understanding the Law
December 9, 2005


There is a dispute over the boundary between John and his neighbour but before the matter is settled his neighbour commences to build a dividing wall on what John considers to be his land. This is an urgent matter that must be dealt with immediately. He has to take quick action to prevent the construction of a permanent structure before the matter could be resolved. His lawyer may approach the court for an injunction and could do so ex parte.{{more}}

Ex parte application

When an application is made ex parte, it is heard by the court without notice to the other party (the respondent). Among other considerations the applicant has to convince the judge of the urgency of the matter since the other person is not notified and is not present to put forward his case. Injunctions may also be obtained inter partes that is where both parties are present.

What is an injunction?

An injunction is an order of the court requiring a party either to do a specific act (mandatory injunction) or to refrain from doing a specific act (prohibitory injunction) for the preservation of property or the protection of persons or simply to maintain the status quo.

In the above case mentioned the applicant will require a prohibitory injunction and the court is likely to order the person who is building the wall to cease construction for the time being until the matter of ownership of the land is determined. Because this type of injunction is for a limited period of time it is referred to as an interim injunction. The issue is finally settled after the matter is fully ventilated in court. The court would decide on the issue of ownership and grant a final injunction if it is fitting to do so. The injunction is a way of dealing with urgent matters quickly while preserving rights. This remedy is granted at the discretion of the court. If the applicant has committed a fraud or a dishonest act in the matter the injunction may be refused.

“Because he fears”

There is a special type of injunction that is granted in cases where the person’s rights are threatened but have not been infringed and there is a fear that irreparable damage will be done if the order is not made. The injunction is said to be obtained quia timet (because he fears)

An injunction may be imposed in the form of a freezing order. This is where the applicant approaches the court to have the defendant’s money in the bank frozen for fear that it would be dissipated (wasted) or taken out of the jurisdiction where it will be difficult to reach if a judgment is later obtained in the applicant’s favour.

Injunctions in domestic matters

Of particular importance are the injunctions that a person could obtain in matrimonial and domestic matters. An injunction could be obtained to restrain molestation or to compel a spouse to leave the matrimonial home or to restrain a matrimonial spouse from returning to the matrimonial home. It may be sought to prevent the removal of a child from the custody, care and control of the applicant or to compel an unruly member of the family to leave the house where he lives. These orders will be looked at in a subsequent article. However, it is important to note that if an injunctive order is not obeyed, the offender could be in contempt of court and liable to a fine or imprisonment.