DECEMBER 6 — An injunction is an order of the court which is made to either prohibit a party in a civil action — usually the defendant — from acting or continuing to act in a particular manner or to compel the party to take certain steps.
An injunction, therefore, orders the defendant to refrain from doing a particular act or thing or to do a particular act or thing. It is a form of relief granted by the courts where damages are inadequate compensation for the plaintiff.
The relief was developed by the courts to supplement the other remedies available under the common law. It is an equitable relief. It is said that the plaintiff who seeks to apply for an injunction must come with clean hands.
The relief is available to the plaintiff pre-trial — that is, before the full trial of the action takes place. An important pre-trial remedy is a special type of injunction known as Mareva injunction. It is granted to restrain the defendant from improperly disposing of his assets, concealing, or moving them abroad for the sole purpose of defeating an action brought against him by the plaintiff.
The injunction derives its name from the case of Mareva Compania Naviera SA v International Bulk-carriers SA (1975) 2 Llyod’s Rep 509. In that case, the English court was prepared to recognise that in certain situations, it would be fair and just for such relief to be granted so as to prevent a defendant from frustrating a successful plaintiff from realising the fruits of his judgment.
The great English judge Lord Denning who delivered the leading judgment, said:
“If it appears that the debt is due and owing — and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment — the court has jurisdiction to grant an interlocutory judgment so as to prevent him disposing off those assets.”
The effect is generally to “freeze” the assets of the defendant pending the conclusion of the action. This was a departure from the common law principle that a person could not obtain an injunction to restrain a man who was alleged to be a debtor from parting with his property.
In Malaysia, the courts have affirmed that they have jurisdiction to grant a Mareva injunction. In order to be granted the injunction, the plaintiff must show:
- a valid cause of action over which the court has jurisdiction;
- a “good arguable case”;
- some grounds for believing that the defendant has assets within the jurisdiction;
- some grounds for believing that there is a risk of those assets being removed from the jurisdiction before the judgment or award is satisfied;
- real risk that the defendant will or may remove their assets from the jurisdiction or dispose of them within the jurisdiction so as to render them unavailable or untraceable.
So, when a judge finds that the plaintiff who seeks a Mareva injunction has fulfilled the requirements above, including a good arguable case against the defendant, there is no error in his decision to grant a Mareva injunction against the defendant.
In the words of Court of Appeal judge Datuk Yaacob Md Sam, there is no appealable error.
Justice Yaacob said this in Datuk Seri Najib Razak’s appeal to set aside a Mareva injunction obtained by SRC International Sdn Bhd and one of its subsidiaries to restrain him from transferring or dissipating any of his assets amounting to RM42 million.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
