SIERRA LEONE No. CC 132/08 2008                                 JNO.10

IN THE HIGH COURT OF SIERRA LEONE

CIVIL JURISDICTION BETWEEN: -

1. NATHANIEL JONES 34 LIVERPOOL STREET FREETOWN

2.  AHMED TEJAN BARRIE

15 PADEMBA ROAD FREETOWN

3. JOSEPHINE BANGURA (MS)

33 ADELAIDE STREET FREETOWN           - PLAINTIFFS

AND

1. COSTOM PRINTERS

15 PADEMBA ROAD, FREETOWN

2. MILLICOM (SIERRA LEONE) LIMITED

(also Known as "TIGO Mobile Phone Company" 117 Wilkinson Road, Freetown.                           - DEFENDANTS

PA MOMO FOFANAH -           For the Plaintiff

SOLOMON A. J. JAMIRU - For the Defendant

RULING DELIVERED THIS 18th DAY OF JUNE 2008. D.B. EDWARDS, J

1. That the Plaintiff be granted an interim Injunction immediately restraining the defendants, in particular the 2nd Defendant by themselves, their servants, relations and /or agents from using the photographs or images of the respective Plaintiff's for the purpose of advertising the 2nd defendant's top up or sales cards as well as from displaying or using the said photographs or images in any commercial venture whatsoever pending the hearing and determination of this action.

2. That the costs of this application be borne by the defendants respectively

3. Any other or further order(s) that this court may deem fit and just.

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I have particularly noted the orders prayed for in this application and the affidavit in support of same which was sworn to on the 11th of March 2008 by the Plaintiffs/applicants' solicitor together with the exhibits referred thereto to wit exhibit A- E1&2. I have also considered with keen interest the arguments of the Plaintiffs/ applicants' solicitor.

By an affidavit in opposition sworn to on the 15th of April 2008 which came about after all attempts on settlement had failed the 2nd defendant's solicitor opposed the application. There were several exhibits referred to in this affidavit to wit exhibits SAJ1-5

An interim Injunction is being sought pending the hearing and determination of this action but this cannot be as the relief being sought is pending the hearing and determination of the action. While the application has been labeled interim it is not strictly interim in the legal sense but interlocutory.

In this matter the plaintiff had sued the 1st and 2nd defendants for a permanent injunction restraining the defendants by themselves, their servants, relations and /or agents from using the photographs or images of the respective Plaintiff's for the purpose of advertising the 2nd defendant's top up or sales cards as well as from displaying or using the said photographs or images in any commercial venture whatsoever.As a pre trial remedy he is seeking the granting of the said injunction. The application certainly concerns interlocutory injunctions and the circumstances under which the same could be granted. A leading case on this is the HOUSE OF LORDS DECISION in the case of the AMERICAN CYNAMID VS ETHICON (1975) AC 396 where it was held that so long as there was a serious matter to be tried the only substantial factor the court takes into account is the balance of convenience. At page 399 it is stated as follows:

"One must look at the whole case to see whether there is a question to be tried and, if there is, then look at the balance of convenience between the parties bearing in

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mind that there is good reason why the status quo should be preserved."

This means that the first question to be addressed is whether there is a serious question to be tried?. It is trite law that what this means is that the claim by the plaintiff must not be frivolous or vexatious but real and while it is no part of the courts function at this stage to try to resolve conflicts of evidence on affidavits as to fact on which claims of either party ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations, that the claim must be of a seriousness as, to be capable of success.

The plaintiff is not however entitled to an interlocutory injunction simply because it appears that he has a strong case. This in effect means that a competent court must not prejudge the merits of the case but rather would be required to ask the question: Would it hurt the plaintiff more to go without the injunction pending the trial than it would hurt the defendant to suffer it?. Put simply who would suffer the most from the injunction and if granted whether it would maintain the status quo .This what is known as where the balance of convenience lies.

A plaintiff would only be entitled to the injunction if it is shown through the affidavit evidence that that there would be injustice if the defendant is left unfettered and that there is a serious risk of irreparable damage to him in consequence of which he must be restrained. On the other hand there might not be a serious need for the defendant to be restrained as damages would be an adequate remedy. The matter for the court's attention and the manner in which it could be addressed is by a probe through two salient questions:

Firstly, would damages be an adequate remedy for the plaintiff and is the defendant able to pay them? If yes, the injunction must be refused: If no, you would of necessity be required to consider a second question viz. whether an undertaking as to damages would be an adequate protection for the defendant and whether the plaintiff is able to

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honour it? Where the answer to this 2nd question is in the affirmative the plaintiff may be ordered to put up security in case he fails to honour it and the injunction should be granted. What ever the scenario, maintaining the status quo of the parties must be paramount in the court's agenda as the granting or refusing of the injunction is not the final remedy sought but a pre trial or interlocutory remedy

The facts of the current case was that the plaintiffs, all 3 of them, were contracted on two separate dates by the 1st defendant who allegedly held out himself as being agent of the 2nd defendant to have their photographs taken to be used for adverts for the 2nd defendants in their top up sales cards for a period of 2years certain The period of 2 years ended but the 2nd defendants continued, have continued and are still continuing with the said adverts .The Plaintiff's having sued for perpetual injunction as stated above and damages for the continued use of the photographs or images of the respective plaintiff's without their consent or approval are now seeking an interlocutory injunction to restrain the 2nd defendant in particular from using Top up sales card of the 2nd defendant carrying their photographs. The exact quantity of such cards is not known for now by this court; suffice it to say the pictures are in the 5,000 units, 10,000 units and 25,000units cards

Taking the above which constitute the principles established under which you grant or refuse an interlocutory injunction one would think that there is a serious question to be tried. But as stated above this is not enough. The Plaintiff's must show that that there would be injustice if the defendants are left unfettered and a serious risk of irreparable damage to them in consequence of which they must be restrained. The facts from the affidavits speak for themselves that this is a case in which the interest of the parties is purely some monetary gain or loss for the use of plaintiffs' pictures. The granting of the injunction is likely to cause more hurt to the defendant than the Plaintiff's as the 2n defendant would certainly be put at serious loss or out of business for not using the top up cards that already carry these photographs. Secondly, should the Plaintiff's fail in the action, even with an undertaking as to damages there is no way the Plaintiff's would be able to pay the damages associated with such failure. In such circumstances there could

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no gain saying that damages should be an adequate remedy and this the defendant would be able to honour.

I therefore refuse the application. No order as to costs. Hon Mr. Justice D B Edwards J.

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