b)
When an application for an interlocutory injunction to restrain a defendant
from doing acts alleged to be violation of the plaintiff's legal right is made
upon contested facts, the decision whether or not to grant an interlocutory
injunction has to be taken at a time when ex hypothesis, the existence of the
right or violation of it or both is uncertain and will remain uncertain until final
judgment is given in the action. It was to mitigate the risk of injustice to the
Plaintiff during the period the uncertainty could be resolved that the practice
arose of granting him relief by way of interlocutory injunction.
48.
However the Court emphasized and enjoined the courts to weigh one need
against another and determine where the balance of convenience lies.
49.
Article 20 of the Protocol of the Court and Article 79 of the Rules of Court
provide for the essentials and requirement for the preservation of the Res in
the suit filed pending the determination of the substantive matter.
It is therefore the strong view of the Court that the protection of rights is no
doubt one of those general principles of law common to all legal systems,
therefore, the provision of Article 38(1) (c) of the Statute of the International
Court of Justice shall apply to the instant case in the consideration of this
present application for interlocutory injunction. In the case of Aegean Sea
Continental Shelf infra (wherein Greece
and Turkey were in dispute) the
International Court of Justice held inter alia thus:
"The essential object of provisional measures is to ensure that the execution of a
future judgment on the merits shall not be frustrated by actions of one party
Pendente lite ......... According to general principles of law recognised in municipal
systems,
and as well - established jurisprudence
of this
Court, the essential
justification for the impatience of a tribunal in granting relief before it has reached a
final decision ...is that the action of one party pendente lite causes or threatens a
dam_ ge to the rights of the other, of such a nature that it would not be possible fully to
restore those rights, or remedy the infringement thereof, simply by a judgment in its
favour."