With the rapid growth of population and the evolution of new ideas in our society today, many people are asking questions patterning to the bad acts which are not yet criminalize or penalize by law. In order to understand and keep oneself informed on such matters, one needs to understand the principle of common law which is the fact that judges are pass judgments based on the law and their conscience. This idea of common law principle that judges should pass judgment based on their conscience is coupled with the law of equity which of cause came into existence in 1873 in England because of the defect in the common law system.
It is worthy of note that there are remedies in both the common law and the law of equity which are applied separately. The common law remedies are legal remedies and are for the client who has legal rights and claims in a case while in the law of equity there are known as equitable remedies or remedies in equity for example specific performance and injunctions. In some circumstances, both the legal and equitable remedies are being applied jointly. For example the court can order for the payment of damages and still order for the specific performance. This shows how close both system operate to effect justice.
An injunction as one of the equitable remedies, is an order given by a court to an individual or a corporate body that they shall do or refrain from doing a particular act. This court decision may be temporal or permanent depending on the circumstances that surround the case. But the question now remains on the mind of a victim with regards to how to get an injunction.
To see into this question, the victim must apply for the grant of injunction relief to the court within a specific time and from the application, the court has the discretion to decide on which type of injunction to grant or after the application, the court may grant a temporary restraining order. This is an order limiting the movement of a person. Failure to respect this order will be interpreted as contempt of the court and is sanction-able by law. Though this injunction runs for a period of time, at the end of the judgment, the fate of both parties will be looked into tp decide whether the already temporal injunction will be extended into permanent injunction or it will be acquitted.
The importance of an injunction
The main aim of an injunction is to prevent acts which can leads to further damages and expenses. There is always a saying that prevention is better than cure. This wise saying takes the lead in injunction as far as remedies in equity are concern. This is because in most cases the injunctions are always there to stop the furtherance of some thing or to prevent somebody from going to a particular extreme. Since a case cannot be judge in a day, the court must in some circumstances, grant equitable remedy injunction to prevent the victims from entering into more loses since the litigation will take time before judgment.
For example, if a person illegally purchases your farm land from an unauthorized brother to use it for a different purpose and not farming, the victim needs to apply for the grant of an injunction so that the illegal purchaser should not destroy the land or make it unsuitable for farming.
A remedy to misconduct
An injunction is also important in that they are given to remedy the ongoing inhuman conduct which if allowed to continue will lead to inconveniences and a threat to life. This can simply be illustrated in the case of a husband and a wife when it comes to marital problems. For instance, the husband can be prevented from visiting the already divorced wife and children at odd hours or given a temporary restraining order not to visit the wife taking into consideration his previous behavior to the wife and the children such as the violation of human rights. In the case of a husband and wife, since in the modern world women are the most vulnerable and victims of most crimes, both the legal and equitable remedies are always given when it comes to divorce. That is divorce as a legal remedy and injunction as one of the remedies in equity so that they are perfectly prevented from the violation of their rights by the men.
A last resort where other remedies cannot be enforced
Equitable remedy injunction is also very important because in the absence of other legal or common law remedies, this remedies becomes the last hope of the victim since one of the equitable maxim is that “equity will not suffer a wrong to be without remedy”. This means that even if the common law fails to provide a remedy for a particular act, equity will always do. Thus an equitable remedy injunction helps limit unnecessary loses by the victim since he or she will still have grounds to be compensated no matter the injury cause to him by the defendant.
To further explain this, when legal remedies are not encouraging, the victim can also apply for both the legal and equitable remedies. For example, if you have a structure which you value so much and there is an attempt by the defendant to destroy the building which is more of a touristic site for other people in the society, the amount of money to be paid as damage will not satisfy the victim if the structure is brought down by the defendant. Therefore knowing how to get an injunction in this situation will require that the victim applies the injunction very early and pays the necessary fee to the court depending on the agreement since it will be necessary for the court in this type of injunctions to move to the locus for proper investigation.
Keeps check on the problems that come with changes in the law
Also an injunction as an equitable remedy is important in our temporary society since there is an evolution in every aspect of human life and the discovery of many other new things and ideas. Because of these changes, there are so many activities and crimes which are not yet documented and before they are documented this same criminal acts must have developed to a different stage and more complicated issues. Then it will not be easy for the judges to seat and pass judgment without taking into consideration what is on the ground and their conscience. Hence for the judges to deliberate on new issues they need to grant injunction so that they can have enough time to deliberate and give justice a chance while taking a detailed look at the jurisdiction and the society in which the present case is based.
Types of injunctions
The injunctions are being classified into two main broad classes that is the temporal injunction or the permanent injunctions. The temporal injunction which can still be referred to in other words as temporary restraining order is an injunction which is granted for a period of time and which can still be lifted. This class of injunction cuts across nearly all types of injunction since injunctions are not granted automatically but in a due process. A permanent injunction on the other hand is an injunction which is as a result of the grant of temporal injunction which result most of the time to a permanent injunction when the case is in favor of the plaintiff and against the defendant
An injunction is an equitable remedy and it varies from type to type depending on the circumstances that surrounds the case on the ground and the class within which it falls. That is: prohibitory injunction, mandatory injunction, perpetual injunction, interlocutory injunction, merava injunction, interim injunction, quiatimate injunction, and exparte injunction
This type of equitable remedy injunction is the most common among the various types of injunction since the main aim of this injunction is to prevent the bad act or crime from being committed. As the name implies, it means that this prohibitory injunction looks into the non-retroactive effects of a crime or act which can probably be committed by the defendant or the person acting in bad faith. Thus looking into the future effect of the threatening act, the court will grant a prohibitory injunction so that the effect should be prevented from occurring.
For example, preventing the person from planting a tree on a land that does not belong to him will mean that the person should cut it down immature. The court can also grant temporary restraining order which is the order from the court restricting the movement of a person within a particular area which will last for a particular period of time while the case is ongoing in the court. Prohibitory injunctions are at times granted when it comes to business transactions like preventing or protecting the relationship between partners in a commercial transaction. For example we may at the beginning of the commercial contract agree that no partner should in future decide to depart from the business and form a personal business. In the above scenario, the court may grant the prohibitory injunction to maintain that relationship.
It is worth understanding that prohibitory injunctions are not necessary when there is an adequate legal remedy to favor justice. The existence of legal remedy to solve the problem at hand like damages will limit the chances of equitable remedy injunction since according to equitable maxim that “equity follows the law”, the legal remedy will be taken into consideration first. Understanding how to get an injunction as far as prohibitory injunction is concern is the question most people will always seek an answer for.
The first thing to do is to apply for it to the judge through a practitioner or a barrister. After the application, the judge is the one with the aid of the law and his conscience to grant the injunction when the necessary procedures most have been followed. Time is of essence for the application of prohibitory injunction since it is to prevent the occurrence of something. So if there is a delay, the application of prohibitory injunction will be of no use as per the equitable maxim that “delay defeats equity”
This injunction is part or a brother to the prohibitory injunction but it is one of the remedies in equity which is only granted for the period within which the matter is in court. An interim injunction can on a special consideration be lifted when the court, through consultations has seen that the continue prohibition of the plaintiff may be of great negative impact to him.
This may be understood comfortably when it comes to a situation where the harvesting of some perishable goods will lead to heavy and unnecessary losses on the plaintiff. For example, if there is an injunction pertaining to a farm product like the harvest of fresh tomatoes, the court can lift the injunction so that there should not be too much damage since as per the maxim of equity, “he who comes to equity must come with clean hands”. Now still on the question of how to get an injunction under this type, the party has to apply for it when the matter is already filed in the court so that he or she can have time to prepare for his or her case
This type of injunction is an order from the court for a person to perform a particular act or to undo the act which has already been performed. This injunction takes both the retroactive and the non-retroactive effect of the act into consideration. That is, the effect of the already perform acts and the effect of the acts still to be performed. For example, the court can grant an injunction ordering you to immediately destroy the house which has already been built on an illegal land which is of cause positive in nature since the court is ordering you to do it. Also, the court can order you not to harvest any produce from your own farm probably because you owe the plaintiff or you have borrowed money from the bank to finance the farm and are not willing to pay. Hence mandatory injunction is very effective in that since if there is a failure to respect the court orders, the immediate action can be taken like the destruction of a house following the orders from the council or the government or the court.
Perpetual injunction does not mean a plaintiff or a person can apply for it directly and automatically in a democratic society. For the perpetual injunction to be granted, the hearing must have ended and the judgment passed on the case. That is, at the end of the hearing if the case disfavored the person to whom the interim or the temporal injunction has been issued, that injunction will become perpetual. But if the judgment favors the person whom an injunction was granted against the injunction will be lifted. Hence in answering the question of how one can get an injunction of this kind, the parties must wait till the end of the trial.
This is an injunction granted before the commencement of the trial in court or at the early stage of the prosecution. This is because the plaintiff may suffer heavy damage if he waits to fulfill the court procedures with the satisfied information and proof to his or her facts put before the court. Thus for the court to avoid these kind of losses, the plaintiff must know how to get an injunction and apply for it before even commencing with the procedures for the case. Temporary restraining order may also be granted when the court is in need of justice and the protection of the party from harm or from suffering unnecessary losses.
This is an equitable remedy injunction in which the court has the powers to hear from one party and to grant an injunction when they have not yet heard from the other party. The reason behind the grant of injunction of this type is because the other party may refuse to come to court or when there is urgency in the case such that if he or she wastes time he will be in danger or the defendant may escape or cause harm to him. This means for example if the defendant enters into a contract with the plaintiff and of a sudden the plaintiff discovered that the defendant is trying to escape with the goods and the money, the plaintiff can apply for the exparte injunction to prevent him from escaping.
Since the exparte injunctions are always of urgency, there is always a need for the court to give orders to the plaintiff quickly.
This is an injunction which is granted by the court in order to prevent the danger or threat faced by the plaintiff from the defendant patterning to rights threatening or threat of the infringement of the plaintiff rights. This injunction is always granted when the act has not yet been committed. Quiatimate injunction also exist in relationship with other types of injunctions such as the perpetual, interlocutory, prohibitory and mandatory injunction. For the plaintiff to succeed in this type of injunction he or she must establish strong evidence that the defendant really threatened his rights and that the probability of infringing his rights is high
This injunction is one of the remedies in equity which the court always grants to an individual or a corporate body aimed at freezing the asset of another party. This injunction runs from the time which the case is pending in court to the time which the case will end or the time which the judgment will be pass. For example, somebody owes you and you have tried by all possible means to get your money from him without succeeding, you need to apply for the mareva injunction so that his or her assets could be freezed along side bank account. Thus, it is very important that the people who act in bad faith are always dealt with when it comes to the law. It is worthy to note that this injunction originates from the case of Mareva v. International Bank
Taking into consideration the legal and equitable remedies, one is tempted to say that the equitable remedies are favorite to the party that lacks the legal grounds in the case but who perform the act in good faith. For example, the bona fide purchaser of goods without notice of its illegality or the bad faith of the seller will be taken into consideration and treated with care by the court since “he who comes to equity must come with clean hands”. To make the bona fide purchaser of value without notice to benefit from the interests of justice and peace. For this bona fide purchaser to benefit he must act in good faith
Therefore equitable remedies are discretionary remedies in which the judges always grant the applicant based on the circumstances of the case in question. This is because the equitable remedies are not documented anywhere but the judges grant it taking into consideration their conscience.
Though injunctions are wider remedies than the specific performance, both of them perform almost the same characteristics since both come into a limelight because of the defects of the common law remedies or the legal remedies. Also, the court can either grant the specific performance and damages or grant the injunctions and damages at the same time. Therefore, meaning that both the legal and equitable remedies can both be granted as far as the two main equitable remedies are concerned.
Both the specific performance and the injunction as main remedies in equity are remedies in personam. This means that either of the remedies can follow the defendant even out of the jurisdiction of the offence. For example, if you owe a plaintiff in Cameroon which is an African country, your account can be frozen in America which is already in a different continent. But there is still an exception to this phrase when it comes to landed property.
For somebody to enjoy the applicability of the equitable remedies, that person must value the use of the equitable maxims because these maxims act as guide lines in rendering justice when the legal remedies are not sufficient to solve the problem at hand. These equitable maxims are more of morals than law in nature. To effect the equitable maxims, one needs to understand that when technicalities in law conflict with common sense, the law will always give the common sense the chance for the interest of justice
At times one is cajoled to understand that the coming into limelight of the law of equity and its rapid growth till today is because of the conflicting ideas between the positivist or the legal law thinkers and the natural law thinkers. This is because the law of equity is to add to the legal law the missing items of morality and equip the law for the betterment of the society