1. Before commencing drafting be mindful of the provisions of Section 54 of the Judicature Act of 1978 and Sections 662 to 667 of the CPC.
2. If the injunction s pleaded in the Plaint itself the papers to be filed are A Paint and Affidavit.
If the injunction is sought during the pendency of an action then you must file a Petition and Affidavit.
3. Always note that an application for injunctive relief is also based on a cause of action as defined in Section 5 of the CPC. The only difference is there is an immediate likelihood of the right of the plaintiff being violated or there exists a continuing violation.
4. Jurisdiction - Based on the cause of action and based on section 9 of the CPC.
5. Plaintiff - Juristic or Natural person.
6. Defendant- Juristic or natural person based on the facts.
Please note -
No injunction possible against the State - Section 24 of the Interpretation Ordinance.
No injunction against a Company registered under Section 17 of he BOI Law.
ESSENTIAL MATTERS TO BE PLEADED IN AN APPLICATION WHEN AN INJUNCTION IS SOUGHT AT THE COMMENCEMENT OF A CASE.
1. Describe the Plaintiff.
2. Describe the Defendant.
3. Plead Jurisdiction and accruing of the cause of action.
4. Define the substantive Law elements of the cause of action in a few paragraphs - Demonstrate the right of the Plaintiff - The several actions of the defendant which has led to the alleged violation - Demonstrate that there is an immediate threat or a continuing violation of the Plaintiffs rights by the actions of the defendant.
5. Establish that there s a prima face case in favour of the Plaintiff.
6. Establish that the balance of Convenience is in favour of the Plaintiff. In other words establish that the Plaintiff would suffer more harm if injunctive relief is refused than the harm suffered by the defendant if the injunction is issued.
7. Disclose all relevant and material matters. Even if there is material that may be to your disadvantage you have a duty of a complete and a full disclosure.
8. Remember the UBERIMA FIDES RULE.
9. The Plaint is a normal plaint but in addition it must reveal that there is an immediate likelihood of the right of the plaintiff being violated.
10. If your remedy is damages the Plaint must show that notwithstanding damages an injunction would lie.
11. The pleadings must state that a cause of action has accrued to the plaintiff to restrain the defendant from a specific act/acts.
12. The pleadings must pray for 3 types of relief apart from the normal relief.
For an Enjoining order restraining the defendant from ...........
For an interim injunction restraining the defendant from .............
For a permanent injunction restraining the defendant from .................
THE ABOVE MATTERS ARE NOT EXHAUSTIVE BUT WOULD VARY ON THE FACTS OF EACH CASE.
KALINGA INDATISSA
Comments
Post a Comment