CC. 184/07     2007   C. NO. 16

IN THE HIGH COURT OF SIERRA LEONE

 BETWEEN:

ZOUHAIR CHAMI                       PLAINTIFFS

ABDUL KARIM CHAMI

15 MALAMA THOMAS STREET FREETOWN

AND

KHALID BAHSOON                    RESPONDENTS

KISHIN SHAN MAHTANI SHANKERDAS

9 MALAMA THOMAS STREET FREETOWN

RULINGWEDNESDAY 25th APRIL 2007.

BEFORE THE HONOURABLE MRS. JUSTICE M. SEY J.

CASE CALLED

PARTIES ABSENT

NO REPRESENTATION BY COUNSEL

REGISTRAR: My Lord, S. Conteh sent a letter asking for the ruling to be delivered in his absence. By Notice of Motion dated the 6th day of March 2007, the Plaintiff/Applicant sought Inter Alia an interim injunction restraining the defendant/respondent from causing nuisance by noise and vibration of a mammoth generator to come into and about the plaintiff/applicant premises situated at 15 Malama Thomas Street Freetown.

By an order dated the 8th day of March 2007 this court ordered as follows:-

1. That an interim injunction is granted restraining the defendant/ respondent whether by themselves, their servants, agents or privies or howsoever otherwise from causing nuisance by noise by vibration of a mammoth generator to come into and about the plaintiffs/Applicants premises situate at 15 Malama Thomas Street, Freetown pending the hearing and determination of this application.

2. That an interim injunction is granted restraining the defendants/respondents. Whether by themselves, their servants, agents or privies or howsoever otherwise

from entering and / or remaining on the plaintiffs/applicants premises situate at 15 Malama Thomas Street, Freetown or any portion thereof pending the hearing and determination of this application;

On the 22nd day of March 2007 the court heard arguments from both sides in respect of the interlocutory application. Reliance was placed on the various affidavits which had been filed. I have carefully considered all of them and I have also taken counsel's submissions into consideration.

The issue that falls for determination now is whether or not there is a serious issue to be tried to warrant the court to grant the interlocutory order prayed for. It is not part of the court's function at this stage to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend. The court is also not required at this stage to decide difficult questions of Law which call for detailed argument and mature considerations.

The object of an interlocutory injunction is to preserve matters in status quo until the main suit can be tried. Except in very special circumstances, only such restraints are usually imposed as will suffice to stop the mischief and keep things as they are until the hearing.

In support of the plaintiff/Applicants application dated 6th March 2007 is the affidavit of Zouhair Chami to which exhibits "ZC2" and "ZC3" are annexed. Exhibit "ZC1" is the copy of the writ in this action and the plaintiffs' claim against defendants jointly and severally is for the following:-

1. Damages for nuisance.

2. An injunction restraining the defendants from the continuance as repetition of the nuisance complained of herein.

3.  Damages for trespass.

4.  An injunction restraining the defendants from entering or remaining on the plaintiffs' premises.

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5. All necessary and consequential directions thereof.

6.  Further or other relief

7.  Costs

In his submissions to the court, counsel for the 1st Defendant/Respondent contended that in the particulars of claim in Exh. ZC1 the only allegation of trespass refers to the 2nd defendant and that similarly in the affidavit Zouhair Chami the allegation of trespass refers to the 2nd deft. Counsel submitted that on the issue of trespass there is nothing to be tried between the plaintiff's and the 1st defendant. Having regard to the pleadings and the assertions in the affidavits. Counsel for the 1st defendant/respondent further submitted that on the issue of nuisance the facts pleaded by the plaintiff in paragraph 2 and 3 of the Particulars of claim relate to acts of the 2nd defendant and that on the facts as they stand, in paragraphs 4 and 5 of the affidavits of the plaintiff/applicants there is nothing which would ground an action for nuisance against the 1st defendant.

It is the contention of the plaintiff/applicant, however, that since the 1st defendant is the landlord of the 2nd defendant the 1st defendant should be liable if he has authorized his tenant to do an act which is likely to cause a nuisance. Even though this submission was made by counsel on points of law, there is nothing in the affidavit of Zouhair Chami whereby facts have been deposed to bring the situation within that preposition. There are also no averments in the particulars of claim alleging that the purpose for which the premises were let by the lst defendant to the 2nd defendant were likely to cause a nuisance.

Counsel for the 1st defendant. Has submitted on the whole that there is no evidence to prove that the 1st defendant has allowed the 2nd defendant to carry out the acts complained of and that the fact that one is aware of something does not mean that one authorized its activities. I agree with counsel's submissions and for the foregoing I am of the considered opinion that in respect of the 1st defendant. There is no serious issue to be tried to warrant this court to grant the interlocutory order sought. I therefore refuse to make- the order against the 1st defendant/respondent: Herein.

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and the 2nd defendant./respondent Judging from the said affidavits and the various averments of both Zouhair Chami and Sonia Mahtani, I am of the opinion that the evidence available to this court at this stage of the hearing of the application for an interlocutory injunction is incomplete. It is given on affidavit and has not been tested by oral cross - examination of Sonia Mahtani. It is trite law that in interlocutory applications, the court is not justified in embarking upon anything resembling a trial of the action upon conflicting affidavits in order to evaluate the strength of either party's case. See American Cyanamid Co. V. Ethicon Ltd. House of Lords (1975) 2 WLR 316.

What the plaintiffs/applicants are asking for is not to restrain the 2nd defendant/respondent from using the generator but to grant an interlocutory injunction restraining them from causing nuisance by noise and vibration. The plaintiffs/applicants have given an undertaking as to damages as per exhibit ZC3. In Wakefield V. Duke of Buccleugh (1865) 12 L.T. 628 at page 629 the court held that "one of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that it aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing.

In the circumstances therefore, I make the following orders:-

1. The Plaintiffs/Applicants herein are hereby granted an interlocutory injunction restraining the 2nd defendant/respondent whether by themselves, their servants, agents and or privies or howsoever otherwise form causing nuisance by noise and vibration of a mammoth generator to come into and about the plaintiff/applicant premises situate at 15 Malama Thomas Street, Freetown pending the hearing and determination of the action herein.

2. The Plaintiff/ applicant are granted an interlocutory injunction restraining the 2nd defendant/respondent whether by themselves, their servants, agents or privies or howsoever otherwise from entering and / or remaining on the plaintiffs/applicants premises situate at 15 Malama Thomas Street, Freetown or any portion thereof pending the hearing and determination of the action herein;

3. The order of interim injunction granted against the 1st defendant/respondent by this court on the 8th day of March 2007 is hereby vacated.

4. There would be no order as to costs.

JUSTICE MARY SEY J.