There is a dispute over the boundary between John and his neighbour but before the matter is settled, his neighbor commences to build a dividing wall on what he feels is his land. There is an urgent issue that must be dealt with immediately. He has to take quick action to prevent the construction of a permanent structure. His lawyer will approach the court for an injunction and may do so ‘ex parte’.
Ex parte application
When an application is made ‘ex parte’, it is heard by the court without notice to 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 defend himself. Injunctions may also be obtained ‘inter partes’ which 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 case mentioned above, 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 and the court would decide on the issue of ownership and give a final injunction. The interim injunction is a way of dealing with urgent matters quickly while preserving the rights to property and of persons. This remedy is granted at the discretion of the court. The court could grant or refuse it. 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 as a temporary measure in cases where the person’s rights have not been infringed, but there is a fear that irreparable injury 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 or taken out of the jurisdiction where it will be difficult to reach if a judgment is later obtained in the applicant’s favor.
Injunctions in domestic matters
Of particular interest are the injunctions that a person could obtain in matrimonial and domestic matters. An injunction could be obtained to restrain molestation by means of protective orders, 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 restrain 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. 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.
Ada Johnson is a solicitor and barrister-at-law. E-mail address is: [email protected]