By Evarist Baimu Nyaga Mawalla - Home

to find a case which shows there is a substantial or serious question to be investigated,and that the status quo should be preserved until that question can be finally disposed of,and the balance of convenience will be the overriding consideration.But it has been said on behalf of the respondent that Placer Dome are already inoccupation of the area Dr. Lamwai has thus arged this Court to grant a mandatoryinjunction instead i.e an order compeling the respondent to restore things to thecondition in which they were at the time when the application was made and keep themin that state until their rights can be ascertained and finally determined. The jurisdictionof this Court in granting such injunction in this case is a different matter and I will returnto that at the end of this Ruling.Mr Chenge has taken a further point namely, that this Court has no jurisdictionwhatever to make an order for any kind of injunction against the respondent. Hisauthorities are section 11 of the Government Proceedings Act, 1967, Order 37 C.P.C asmodified by GN, 376 of 1968 as well as the English Case of Underhill and Another V.Ministry of Food, (1950) E.A “591.So far as material section 11 of the Government Proceeding. Act provides that inproceedings against the the Government the Court has no power to there an injunction,but may make on order declaratory of the parties rights. It also provides that in any CivilProceedings the Court has no power to grant an injunction against an Officer of theGovernment, if the effect of doing so would be to give relief against the Governmentwhich could nor have been obtained in proceedings against the Government (the object ofthis rule is to prevent the Government immunity being stultified by substituting anindividual official as the defendant, since the whole point of the immunity is that themachinery of central government shall not be impeded by injunction)As for GN 376 of 1968, rule 2 thereof makes certain provisions of the first schedule tothe C.P.C ( which includes Order 37) applicable to proceedings under the GovernmentProceedings Act subject to the modifications specified in the schedule thereto. By virtueof these provisions the Court has no power to grant a temporary injunction against theGovernment, but in lieu threof the Court may make an order declaratory of the rights ofthe parties. Whether that makes good sense, however, a moor point. For one thing, as thelearned judge observed in Underhill and Anather ,such interim declaration might be thevery apposite of the final declaration of right make at the end of the trial after all thematter in issue had been gone into at leghth.Underhill and another was a decision of the Chancery Division in relation tosection 21 of the English Crown Proceedings Act, 1947 which corresponds with section11 of our Government Proceedings Act. It was conceded at the hearing, and held byRomer, J., that in view of that provision the plaintiff’s prayer for interlocutory injunctioncould not be entertained by the Court. As demonstrated above, that is exactly what GN.376 of 1968 makes crystal clear.241