Court name
HC: Land and Property and Environmental Division
Case number
CC 28 of 2017

Neiford E. W Rose v Peter Senesie (CC 28 of 2017) [2022] SLHCLPED 101 (26 July 2022);

Media neutral citation
[2022] SLHCLPED 101
Case summary:

Land and Property Division - Injunction - Interlocutory injunction - Injunction granted in favor of the Applicant.

Coram
Binneh-Kamara, J

Ruling on an Application for an Interlocutory Injunction and Cost, Delivered by

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the Hon. Dr. Justice Abou B. M. Binneh-Kamara, J., on Tuesday, 26th July 2022.

1.1 The App1lication's Background and Context
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This ruling is constructed on the content of an application, pursuant to a notice of
motion, filed by S.T.N. Navoa Esq., (hereinafter referred to as Counsel for the
Applicants), of Navo and Associates, LA Solution Chambers, 48 Willington Street,
Freetown. The application (notice of motion) is strengthened by the affidavit of Mr.
Neilford E.W. Rose Mrs. Abigail E. W. Rose of NO.6 Siadu Lane, Off Peninsular Road,
Ogoo Farm, Freetown, sworn to and dated 13
thFebruary 2020. The principal thrust

of the inter parte application for the interim and interlocutory injunctive reliefs, are
geared towards restraining the Defendants (hereinafter referred to as

Respondents), whether by themselves, servants, agents, privies or howsoever
called from constructing, working, entering, remaining, and/or disposing of the
property of the Plaintiffs (hereinafter referred to as the Applicants), pending the
hearing and determination of the application. Contrariwise, on 13
thMarch 2020,
M. Kenneh
fsq. (hereinafter referred to as Counsel for the Respondents), filed an
affidavit, deponed to by one Alphonso Smiley Smith, contravening the purports of
the applicat
ion as justified by its supporting affidavit.

1.2 The Submissions of Counsel for the Applicant

On 15thOctober 2020, Counsel for the Applicants make the following submissions,
craving the Bench's indulgence for the application, to be granted.

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  1. That the bolstering affidavit speaks for itself; it contains very relevant facts
    and facts-in-issue and compelling exhibits, that should let this Honourable
    Court grant the application. Thus, Exhibit NEWR 1 is a copy of an injunctive

 

order, granted by Justice Dwarzack in 2017, restraining both Respondents
etc. f
rom erecting any structure on the realty (the subject matter of this
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litigation). Exhibit MEWR 2, is a letter from the Applicants' previous solicitor

to the Chief of Defense Staff, complaining one Lt. Colonel Gogra, to whom

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the Respondents, allegedly sold a portion of the land, immediately after the

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foregoing order expired; and the subsequent default judgment awarded to
the A
pplicants, were set aside. Exhibit NEWR 3, is a reply from the Chief of
Defense Staff to the Applicants' former solicitor, Roland R. Nylander Esq.

  1. The application is made, in accordance with Order 35 Rule 1 (1) of the High
    Court Rules, Constitutional Instrument NO.8 of 2007 (hereinafter referred to
    as the HCR 2007). Thus, the requisite undertaking for damages, is deponed
    to in paragraph fifteen of the nineteen paragraphs long affidavit, that
    bolsters the application.

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  1. The Respondents are still doing construction works on the land, even though
    this Honourable Court is yet to determine the orders as prayed in the writ of

summons, commencing this action.

1.3 The Submissions of Counsel for the Respondent

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On the same 15thOctober 2020, Counsel for the Respondents, makes the following
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submissions, in justification of why he thinks the application should not be granted:

  1. The application's contradicting affidavit contains just one exhibit; and that is
    marked Exhibit ASS1, which is this Honourable Court's direction, dated 6
    th
    November 2019. Thus, the essence of this order is for this matter to proceed

to a speedy trial; noting that the said affidavit (specifically paragraphs three,
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four, and five), depicts very clear facts, that should convince this Honourable
Court, to refuse the application.

  1. Should the order be granted, that would occasion undue hardship to the
    Respondents; adding that paragraph two of the contravening affidavit,
    shows that the action commenced in 2017; and that the Applicant had a

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default judgment, which was subsequently set aside as of right (and not on
terms) and the Court has given directions for this matter to be speedily
proceeded with.

  1. In fact, the Applicant has not complied with the directions, but has sought to
    reque
    ,st for injunctive relief. Thus, it would be rational for the application to
    be discountenanced; and for the parties to be urged to comply with the

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directions of this Honourable Court, so that the matter wou Id proceed to
trial.

1.4 The Law on Injunction

The jurispr~dence on injunction has continued to develop with case law (in the
commonwealth jurisdiction). This development has culminated in a very reach
literature on injunction; as an equitable remedy, which has been codified by statute
in our jurisdiction. Injunctive remedies are so versatile that they can be invoked at
any stage, E
jven before, during and after a trial. At the pre-trial and trial stages,
injunctions can be either interim or interlocutory, subsisting for a period of either
seven days (interim) or span for the entire trial period (interlocutory). However,
injunctions are made perpetual at the post-trial stage. At this later stage, they can
be made perpetual, because the courts would have had the opportunity to hear
the evidence and would have determined the outcomes of the litigations.

 

Thus, injunctions are effective legal mechanisms invoked by the courts, to enforce
the rights and liberties of deserving litigants. Catalytically, the application that is to
be determi
red, concerns principally the grant or refusal of an interlocutory
injunction
1nd cost. Thus, if this analysis reflected the literature on perpetual
injunction, i
t would amount to an exercise in futility. Meanwhile, it should be noted
that interlocutory injunctions are discretionary and temporary (see Paragraph
29/L/3 at page 565 of the Annual Practice of 1999). That is, courts of competent

jurisdictions, can exercise their discretions, to grant or not to grant them, pursuant
to statutes or statutory instruments
, in the interest of justice and fairness, to
deserving litigants. Moreover, such orders will never subsist beyond the trial
period. Ess
~ntially, the position of the law, regarding the circumstances in which
injunctions should or should not be granted, is cognate with the principal sources

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of law in Sierra Leone. Thus, the shared body of knowledge in this area of the law

is shrouded in statutes and case law.

Meanwhile, the American Cyanamid Co. Ltd. v. Ethicon Ltd. (1975) 1 All ER,

,

Fellowes and another v. Fisher (1975) C A 829-843, Hussein Abess Musa (for and

on behalf of the beneficiaries) v. Musa Abess Mousa and Others (C.C 745/06 S 2006
M NO.3) {
2007} SLHC (22nd February 2007). Watfa v. Barrie Civ. App. 26/2005

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(Unreported), Chambers v. Kamara (CC 798/06) (2009) SLCH 7 (13thFebruary 2009)

(Unreported) and Mrs. Margaret Cozier v Ibrahim Kamara and Others cc. 165/18
2018 C. 06 (22nd January 2020), PC Dr. Alpha Mansaray Sheriff the II v. Attorney
-

,

General and) Minister of Justice and Others (Misc. App. 6/2011) and Alhaji Samuel

Sam-Sumana v. The Attorney General and Minister of Justice of Sierra Leone and
Victor Bockarie Foh S.C 2015 etc. are some of the landmark cases, that clearly
enunciate the guiding principles, which reasonable tribunals of facts, have always

 

considered, in granting or refusing injunctive applications. Nonetheless, the
American C
yanamid case, contains the principal and most salient precedent, that
has undou
9tedly guided Superior Courts of Judicature in the Commonwealth
jurisdiction in dealing with applications on injunctions. In tandem with Lord
Diplock's reasoning, the other Law Lords (of the House of Lords) that presided over
that monumental case (Lords Viscount Dilhorne, Cross of Chelsea, Salmon and
Edmund Davies, held that to determine whether a court of competent jurisdiction

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should or s~ould not grant an injunction, the following threshold must be met:

  1. The Court must determine whether there is a serious question of law to be
    tried. And at this stage, it would not be necessary for the Applicant to
    establish a prima facie case, when the application is made, but the claim
    (upo
    ~ which the application is based) must neither be frivolous, nor
    vexat
    jous.
  2. The Court must also establish the adequacy of damages; as a remedy, should

,

it turn out at the end of the trial that, the injunction (if granted) should not
have
peen granted.

  1. The yourt must finally establish whether the balance of convenience is in
    maintaining the status quo or not.

Significantly, the foregoing criteria have influenced and shaped the development

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of the law on injunction in English jurisprudence. Thus, the American Cyanamid

case is a we I cited authority in numerous applications for injunctions in the United
Kingdom, the Caribbean and Africa. Moreover, shortly after the celebrated decision
in the said locus classicus, Lords Denn
ing, Browne and Pennycuick, on the 15th, 16th
April and 2pd May, 1975, replicated the criteria for the grant or refuse of an

 

injunction, established in American Cyanamid Co. Ltd. v. Ethicon Ltd. (1975) 1 All
ER in the other celebrated case of Fellowes and another
v. Fisher (1975) C A 829-
843; and refused to grant the interlocutory injunction, which was the principal
thrust of the appeal in that later case. Meanwhile, the valence of the precedent of
the latter case, which should be given prominence and salience in this ruling, is

rooted in how the Court of Appeal of England, dealt with the thornily controversial
issue of balance of convenience in the determination of whether an injunction

should or should not be granted. Essentially, the issues that are cognate with the
relative strength of each party's case and the circumstances in which their relative
strength should be considered, are the main concerns, which the Court of Appeal
of England, made quite prominent in the assessment of whether the Superior Court
of Judicature, should or should not grant an injunction.

Analytically, in our jurisdiction, in the celebrated case of Watfa v. Barrie
(referenced above); the threshold for the grant of an injunction (as articulated in
the American Cyanamid Case) was alluded to, but the application for injunction was
accordingly repudiated. More importantly, The Hon
. Justice A. B. Halloway's
decision in
~ussein Abess Musa (for and on behalf of the beneficiaries) v. Musa
Abess Mous
ja and Others (C.C 745/06 S 2006 M NO.3) {2007} SLHC (22ndFebruary
2007), was made in tandem with the decision in Watfa
v. Barrie Civ. App. 26/2005
(Unreported). Most importantly, in Alhaji Samuel Sam-Sumana v. The Attorney
General and Minister of Justice of Sierra Leone and Victor Bockarie Foh S.C 2015,
the Hon. Justices V. V. Thomas, C J., N. C. Browne
-Marke, JSc., E. E. Roberts, JSc.,
V. M. Solomon, JSc
., and P. O. Hamilton JSc., applied the same test in the American
Cyanamid case, to refuse the application of injunction in that constitutional case.

 

Nonetheless, The Hon. Justice Desmond B. Edwards J. (as he then was) applied the

same criterta in the American Cyanamid case to the facts and facts-in-issue in
Chambers
~. Kamara (referenced above), to grant an interlocutory injunction in
favour of the Applicant. Furthermore, The Hon. Dr. Justice A. Binneh-Kamara, J
. in
Mrs. Margaret Cozier
v. Ibrahim Kamara (referenced above), granted the
application
for an interlocutory injunction; after an introspective reflection of the
threshold established for the ward of such orders in both the American Cyanamid

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and Fellowes cases. Essentially, the trend of thought that is discernible in the
analysis, leading to the decisions in the above cases, is rationalized in the HCR,

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2007. This argument strengthens the quintessential fact that interlocutory
injunctive o
rders are discretionary and temporary.

Therefore, ;t is the peculiarity of the circumstances of any case, that would
determine whether a reasonable tribunal of facts, should or should not grant such
injunctive r
~liefs. Thus, Order 35 Rulel of the HCR 2007, states that: 'The Court may
grant an injunction by an interlocutory order in all cases in which it appears to the
Court to be just or convenient to do so and the order may be made either
unconditionally or upon such terms and conditions as the Court considers just'
. The
other essential point which must be made very clear in this analysis, leading to the
determination of the application, is cognate with the conditionality
of the Applicant
seeking for an injunction to make the requisite undertaking, to pay damages to the
other side, should it turn out at the end of the trial that, the interlocutory
injunction, ought not have been awarded at all. Thus, Order 35 Rule 9 of the HCR
2007, makes the undertaking for damages, a clearly mandatory conditionality, for

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the award of an interlocutory injunction.

 

1.5 The Analysis

An examina,ion of the affidavit, supporting the application, and even that opposing
it, depicts t
rat they both contain depositions, relating to the law on injunction.
However, it should be noted at this stage, that affidavits are meant to present the
facts and facts-in-issue, that should convince a reasonable tribunal of facts, to grant
or not to grant an application. Meanwhile, it is only facts that should be deponed

,

to in affidavits; the law as it is, should not under any circumstance, be mentioned

in an affidavit. Further, contrary to Counsel for the Respondents' submission, there

is no rule of, adjectival law, that says that when a court of competent jurisdiction,
makes an o
rder about how a trial should proceed (pursuant to an application for
direction by summons), it cannot hear and determine an application for an

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interlocutory injunction, until the parties to the litigation, comply with such

directions.

Nevertheless, the first limb of the threshold for the award or refusal of an

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injunction is that the Court must determine whether there is a serious question of

law to be trifd. It cannot be denied at this stage that this action is about declaration
of title to property, damages for trespass, recovery of possession etc. The
Applicants and Respondents are thus laying claims to what appears to be the same
realty, which is the subject matter of this litigation. The writ of summons,
commencing this action and the pleadings in the defense and counterclaims, are
clearly reflective of the contentions, concerning the ownership and possession of
the realty being claimed by both parties. And the supporting and opposing
affidavits of the application, have raised some serious and contentious facts and

facts-in-issue, pointing to the need for a serious question of law to be tried. In fact,

 

the remedies, which both parties are requesting of this Honourable Court, cannot
be made available to either, without the determination of who really owns, the
realty. This points to the need for a trial. Thus, on this point, V. V. Thomas C. J., had
made the following instructive comment: 'If there is no serious question to be tried
,
this is virtually the end of the matter in an application for an injunctive relief' (see

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Alhaji Samuel Sam-Sumana v. The Attorney General and Minister of Justice of Sierra

Leone and \fictor Bockarie Foh S.C 2015). As it stands, the facts and facts-in-issue,
germane to the application, depict that there is indeed a serious question of law to
be tried in t
Tis case. Therefore, the first limb of the American Cyanamid threshold,
regarding the award of an injunction, can be clearly seen in the present
circumstance of this litigation
.

Meanwhile, at this stage it would not be necessary for the Applicant to establish a

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prima facie case, but the claim upon which the application is based must neither

be frivolous nor vexatious. Indeed, the Applicants' claims in this application are
neither friv
plous nor vexatious. The second limb of the American Cyanamid
threshold is that the Court must also establish the adequacy of damages; as a
remedy, should it turn out at the end of the trial that, the injunction (if granted)
should not have been granted. So fa
r, the Respondents have not adduced any

evidence, establishing that an award of an interlocutory injunction, in favour of the

Applicant, would never be adequate, should it turn out at the end of the trial that
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the injunction (if granted), should not have been granted. Again, the Applicants
accordingly, complied with the provision in Order 35 Rule 9 of the HCR 2007
, by
making the apposite undertaking for damages.

 

Since this fact has not been contravened in the application's opposing affidavit, it
would be u
~reasonable to conclude that the application, does not meet the second
limb of the American Cyanamid threshold. On the third limb, the balance of
convenience, is rooted in the fact that, there is absolutely every need for this
Honourable Court, to prevent both parties from having anything to do with the
realty, until the final determination of the reliefs, sought by both parties to this
action
. As it stands, to allow anyone to be in possession, will be unfair and
detrimental to the other side. Conc
lusively, the fact that the application, meets the
American C
~anamid threshold, I hereby grant an interlocutory injunction (in favour
of the Applicants) restraining the Respondents, whether by themselves, servants,
agents, pri
vies or howsoever called from constructing, working, entering,
remaining,
and/or disposing of the realty in contention, pending the hearing and
determinati
pn of the reliefs sought by both parties, to this action. The cost of the
determination of this application, shall be cost in the cause.

The Hon. Dr. Justice Abou B. M. Binneh-Kamara, J.

Justice of the Sierra Leone's Superior Court of Judicature.