By Evarist Baimu Nyaga Mawalla - Home

object that I have indicated above Nevertheless this authority was treated byGraham J and the Court of Appeal in the instant appeal as leaving intact thesupposed rule that the court is not entitled to take any account of the balance ofconvenience unless it bas first been satisfied that if the case went to trial on noother evidence than is before the court at the hearing of the application theplaintiff would be entitled to judgment for a permanent injunction in the sameterms as the interlocutory injunction sought.Your Lordships should in my view take this opportunity of declaring that these isno such rule. The use of such expressions as a probability a prima facie case ora strong prima facia case in the context of exercise of a discretionary power togrant an interlocutory injunction leads to confusion as to the object sough to beachieved by his form of temporary relief The court no doubt must be satisfiedthat the claim is not frivolous or vexation in other would that there is a seriousquestion to be tried.It is no part of the court faction at this stage of the litigation to try to resolveconflicts of evidence on affidavit as to facts on which the claims of either partymay ultimately depend nor to decide difficult question of law which call fordetailed argument and matter consideration. These are matters to be dealt withat the trial. One of the reason for the introduction of the practice of requiring anundertaking as to damages on the grant of a an interlocutory injunction was thatit aided the court in doing that which was its great object, viz abstaining fromexpressing any opinion upon the merits of the case until the hearing of theapplication for an interlocutory injunction fails to disclose that the plaintiff has anyreal prospect of succeeding in his claim for a permanent injunction at the trial thecourt should go on to consider whether the balance of convenience lies in favourof granting or refusing the interlocutory relief that is sought.As to that the governing principle is that the court should first consider whether ifthe plaintiff were to success at the trial in establishing his right to a permanentinjunction he would be adequately compensated by an award of damages for theloss he would have sustained as a result of the defendant continuing to do whatwas sought to be enjoined between the time of the application and the time of thetrial If damages in the measure recoverable at common law would be adequateremedy and the defendant would be in a financial position to pay them nointerlocutory injunction should normally be granted however strong he plaintiffclaim appeared to be at that stage If in the other hand damages would notprovide an adequate remedy for the plaintiff on the event of his succeeding atthe trial the court should then consider whether on the contrary hypothesis thatthe defendant were to succeed at the trial in establings his right to do that whichwas sought to be enjoined he would be adequately compensated under theplaintiff undertaking as to damages for the loss he would have sustained bybeing prevented from doing so between the time of the application and the timeof the trial If damaged in the measure recoverable under such an undertakingwould be an adequate remedy and the plaintiff would be in a financial position to305