Suma and Others v Bazzy & Sons (CIV .APP.10/98)  SLCA 1 (15 May 2000);
IN THE COURT OF APPEAL FOR SIERRA LEONE
MUSA K. SUMA
FODAY ABDULAI SHERIFF
NATIONAL MOTORS LIMITED - APPELLANT
IBRAHIM BAZZY & SONS - RESPONDENT
HON. MR. JUSTICE N.D. ALHAIDAI - J.A.
HON. MR. JUSTICE M.E TOLLA -THOMPSON - J.A.
HON. MR. JUSTlCE F.C. GBOW -J.A.
BERTHAN MACAULEY Jnr. for the Respondents E.S. ROSERTS ESQ., FOR THE APPELLANT
JUDGEMENT DELIVERED THE 15th DAY OF MAY 2000
This is an Interlocutory Appeal against the Ruling of E.K.Cowan-J in which he granted an application by the Respondant/Plaintififf for a prohibit ivy 2nd mandatory injunctions against the Appellants/Defendants and made the following Orders;-
"(1) That the defendants by themselves their servant or agents or privies howsoever called give up possession of the premises at 35, Cline Street, Cline Town Freetown to the Plaintiff /Applicant pending the hearing and determination of this matter.
(2) That the defendants by themselves their servants agents or privies howsoever called are restrained from entering upon the premises at 35, Cline Street Cline Town Freetowm or from ascertaining any claim to the said property until the hearing and determination of this matter." The Affidavit evidence before the learned judge on which he
executed his discretion: is firstly, the evidence in support by Alhaji Hassan Bazzy sworn to on the 14/10/98 in which he deposed that the Respondent/Plaintiff became entitled to the premises 35, Cline Street Cline Town Freetown. by a Deed of Conveyance dated 8/11/95 executed on their behalf by the Government of Sierra Leone, Exhibited as AHB1". That on the 19/8/90 be received information from his workers at the warehouse, Messrs Mohamed Ayache and Alie Kamara that the 2nd Appellants/Defendants acting on the instruction of the other three Appellants/Defendants attempts to break and enter the warehouse as a result of which he made a report at the Harbour Police Station.
That on the following day on the 20/8/98 he again received inform ation from the two workers that the Appellants/Defendants did carry out their enterprise forcefully broke and entered the warehouse and removed properties of their business. That on this information he proceeded to the warehouse and. discovered the report to be true, and discovered prope ties including cocoa, coffee, motor vehicles jute bags and steel rods were removed from the warehouse. That he then made a report at the Harbour Police Station, Law Officers' Department and the/C.I.D. That on the 14/10/98 they issued a Writ of Summons in this case.
He also deposed that their business is bulk importation of rice and other consumer goods and the export of products from this Country which all were stored in the warehouse. That they were expecting a shi load of rice but there was no available storeage facility for them in the warehouse, or in the vicinity of the Queen Elizabeth. II Quay or any where in Freetown. That he believed that the turn over of their business which exceeds Le3 Million per annum. The Appellant/Defendants will not be able, to satisfy their loss by the payment of damages, if their application for an injunction is refused.
The other affidavit evidence in support is that of Mohamed, Father Ayache sworn to on 14/10/98. He deposed that on the 19/8/98 he was standing about 50 yards away from the main gate of the warehouse in the afternoon hours when he was informed that certain people were trying to
force open the side door of the warehouse. That he rushed to the warehouse with two other men and found three welders and the 2nd Appellant/Defendant and other persons attempting to force open the side door leading to the warehouse. That the 2nd Appealants/Defendant told them that they were being sent by the 1st Appellants/Defendants to reclaim the premises which had been forcibly taken away from him.
That he made a report at the Harbour Police Station and to Alhaji Hassan Bazzy, That an Inspector of Police want to the scene and stopped the intruders from continuing with their action.
That on the following day the 20/8/98 the 2nd Appellants/Defen-dants with others again went to the warehouse, broke open the door and installed their padlocks on the doors. That when he questioned them about their authority they explained that they were sent by the 1st Appellants/Defendants to reclaim his property. That when they had gained entrance into the warehouse they removed goods of the Respondent/Plaintiff including cocoa, coffee, cars, tyres and steel pipes, which they loaded in a van and took them away with the cars.
That the 2nd Appellants/Defendants had earlier visited the ware-house with the 3rd Appellants/Defendants who identified the warehouses to the 2nd Appelland/Defendants.
That on the 12/10/98 several workers who claim to be agents of the 1st Appellant/Defendant went to the warehouse and. commenced doing alteration to the premises.
In opposition to the application is the affidavit evidence of the 1st Appellant/Defendant Musa Kalie Suma sworn to on the 26/10/98. He deposed that he is the Chairman of the Board of Directory of the 4th Appellants/Defendants Company. That since 1991 the Respondent/ Plaintiff had been trying by all ways and means to take over the warehouse from their company with full knowledge of their right to legal occupation of it. That this issue as to who has a right to the occupation had been the subject matter of aborted court proceeding in the post and on each occasion these matters were never concluded because the Respondents/plaintiffs would indicate that they were no
longer contending the issue. He also deposed that the Respondents/ Plaintiffs conspired with the Secretary of State for Lands, Housing and the Environment to unlawfully deprive their Company of their legal right to occupy the premises which conspiracy led to the execution of a purported conveyance to the Respondents/ Plaintiffs, which conveyance he was ignorant of until , the Notice of Motion herein was served on him. Also that notwithstanding any legal proceedings taken against them, he was informed by his? son Nabil Sums who was incharge of the warehouse that Mr. Ibrahim Bazzy himself led a motorcade of armed N.P.R.C. Soldiers in March, 1993 and these armed soldiers forcefully entered the premises and evicted members of their staff.
That since this forceful eviction he spoke with Mr. Ibrahim Bazzy on at least two occassions. That was immediately after the introduction of democratic rule in 1998, and he Mr. Ibrahim Bazzy indicated that he recognised the legal right of the Appellants/ Defendants to the property and asked that the matter be settled amicably without any further court action or publicity and that he-was willing to negotiate the handing back of the premises to the 4th Appellants/ Defendants.
That whan the A.F.S.C. Coup took place on the 25/5/9? he took refuge in Conakry. That whilst in Conakry he again spoke with Mr. Ibrahim Bazzy who assured him of his willingness to hand over the premises to the 4th Appellants/Defendants; but that he needed the use of the warehouse for at least another six months as he had contracted with the A.F.R.C. Regime to import essentail commodities like sugar, rice into this country.
He said that knowing of this close relationship of Mr. Ibrahim Bazzy and the A.F.R.C. Regime any attempt to reclaim possession of the will is fertile.
He deposed further that on the return of democratic rule and the restoration of president Tejan Kabba's Government he made several
representation to the authorities of his intention to repossess the warehouse.
That in August 1998 when the employees of the 4th Appellants/ Defendants discovered the warehouse unoccupied and seemingly abandoned they reentered the promises and had remained in occupation even since.
That since August 1998 the warehouse had been used by the Controller of Customs as a bonded warehouse where goods worth millions of Leones are presently stored which cannot readily be transferred and which are subject to the control and supervision of the Controller as well as goods of the 4th Appellants/Defendants Company.
The Second Affidavit in Opposition is that of Ahmed Labi sworn to on the 26/10/98. He deposed that on the 3/4/57 the premises the subject matter of these proceedings were leased by the Government of Sierra Leone to the Gold Coast Properties Limited for period of 99 years, Exhibited as AL2 .
That on the 5/5/70 the Gold Coast Properties Limited assigned the anexpired term of the lease to U.A.C. (Sierra Leone) Limited evidenced oy Exh. AL3.
That on the 9/12/3? U.A.C. (Sierra Leone)Limited assgined the remaining unexpired term to National Motors Limited, the 4th Appellants, Defendants, as shown in Exhibit AL4 . That since the 9/12/83 the 4th Appellants/Defendants had been in peaceful enchallenged and undisturbed occupation of the premises until when they received a letter dated 20/9/91 from the Ministry of Lands and Housing that they had leased the premises, to Messrs Ibrahim Bazzy and Sons. The letter is exhibited as AL5. That they were informed by their solicitors that there was no legal basis for the contents of the letter; and they continued occupation of the premises and the issued appeared to have died a natural death
That on the 20/1/92 the Respondents/Plaintiffs issued a Writ of Summons dated 26/1/92 C!C. 691/92 1992 3. No.9 Exh. AL6 against National Motors Limited, the 4th Appellants/Defendants and that in the course of the hearing Mr. Ibrahim Bazzy admitted that he knew that
National Motors were in lawful possession of1 the premises and that he went out to retain a lease of the premises from Government. That in a letter dated 17/3/93 written by their solicitors to the Secretary of State Lands, Housing and the Environment the admission made by Mr. Ibrahim Bazzy was clearly referred to. The letter was exhibited as AL7 , That in the said action C.C. 69/92 solicitors for the plaintiffs, Ibrahim Bazzy and Sons discontinued the action and offered to pay the full costs of the 4th Appellants/Defendants. National Motors Limited.
That by a letter dated 5/10/92 from the Secretary of State Lands Housing and the Environment he instructed them to vacate the v premises as they have been leased to the Respondents/Plaintiffs, Ibrahim Bazzy and Sons. A photostat copy of the letter exhibited as 8 AL8 That their solicitor replied to this letter in 3x AL9 . That pursuant to the admissions by Mr. Ibrahim Bazsy and the letter, Exh. AL8 the 4th Appellants/Defendants decided to have the issue resolved by the court, and instructed their solicitor to commence legal proceedings against the partners of Ibrahim Bazzy and Sons. The Writ 10 of Summons was C.C. 750/92 1992 No.27 Exhibited as AL10. That as a result of overtures made by Ibrahim Bazzy and Sons, the Defendants therein suggesting that they were no longer interested in challenging their rights of occupation of the premises the matter C.C. 750/92 was adjorned sine die.
That they relying on the understanding that the Respondents/ plain-tiffs were no longer going to make attempts to wrest the premises from them he said he was surprised when he was informed by the workers of the 4th Appellants/Defendants that in March 199? that Mr. Ibrahim Baszy led a motorcade of armed N.P.R.C. Soldiers who stormed the premises and got the workers of the 4th Appellants/Defendants evicted and removed properties belonging to the 4th Appellants/Defendants. That despite several protests made to authorities concerned they were unable to re-enter the warehouses.
That in August 1998 the warehouse was discovered locked but unoccupied and personnel of the 4th Appellants/Defendants thereafter took possession of the premises and are still in occupation.
The Learned Judge in deciding in what way to exercise his discretion in the light of the. affidavit evidence before adopted the guidelines as laid down by Lord Diplock in American Cyanamide v. Ethicon (1975) 14 ER 504 which I agree was proper for him to do as decisions of that court is highly persuasive authorities in this jurisdiction. It is on this basis that I will consider the seversl grounds of appeal raised before this court.
Therefore the relevant question in the case is what are the special circumstances disclosed in this case for a grant of the injunction prayed for, or are the facts disclosed in the affidavit evidence ones which can be classified as simply and that can be dispos of summarily and easily remedied, or is it one in which the Appellant attempted to steal a march on the Respondent?
I have posed this question in the light of a passage in the decision of Megarry J in Shepard Homes v. Sandbatn (1970) 3 AEH 402 referring to Halsbury's Laws 3rs Edition 744. The full quotation of this passage is at Page 408 wherein it is stated:
"A Mandatory injunction can be granted on an Interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not be granted on motion. If, however, the case is clear and one which the Court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant ,after express notice, has committed a clear violation of an express contact, or where the defendant, on receipt of notice that an injunction is about to be applied for, hurries on the work in respect of which complaint is made, so that, when
he receives notice of an interim injunction, it is completed, a mandatory injunction will be granted on an interlocutory application."
This is an example of the defendant wanting to steal a march on the plaintiff, and the necessity of a clear violation of. an express contract or the plaintiff's right to which he is obligated.
The authority in support of the words "Clear Violation of an express contract" is Morris v. Grant (1875) 24 EH 55 where a freeholder had entered into a covenant with the covenants© not to erect a porch or make any alteration in the building. The freeholder in violation share of erected a porch. A mandatory injunction was granted for removal of the porch. This is perhaps a case in support of a simple case which can be summarily disposed of and easily remedied.
In Solomon v. Aboud (1950-56) ALB. (3L 21). The plaintiffs alleged that in March 1949 the defendant unlawfully entered into the plaintiffs premises and by himself and servants erected a concrete wall or a portion of the plaintiff's premises and ha persists that the portion of land the wall was erected was his. The plaintiffs insisted that unless the wall was demolished they would not erect a substantial building they propose erecting on the land. The plaintiffs claimed inter alia that the concrete, wall be removed. An injunction was granted that the wall be removed.
Beoku-Betts J in his judgment quoted 18 Halsbury's. Laws of England , 2n< Edition pages 24-25 as follows:-
“Where the injury done to the plaintiff cannot be estimated and sufficiently compensated for by damages, or is so serious and material that the restoration of things to their former condition is the only method whereby justice can be adequable done. The court will exercise its jurisdiction and • grant a mandatory injunction."
The Learned Judge also quoted Kerr on Injunctions 6th Edition at 41-42 (1927) the following.
"The court will not as a rule interfere by way of mandatory injunction without taking into consideration the comparative convenience and in convenience which the granting or withholding the injunction will cause to the parties. Where the injury done is capable of being fully and abundantly compensated by a primary sum while the inconvenience to the other party from granting the injunction would be serious the court will" not interpose by way of mandatory injunction, but will aid and damages by way of compensation for the injury."
The learned Judge in concluding his judgment said. "It seems reasonab that the plaintiffs'house should not be removed, from the present position since it is on their land. The other alternative is that the defendants wall should be removed. The balance of convenience and. what would cause less expense is for the wall to be removed.
This case also illustrates an example of a violation of the . plaintiffs right, by encroaching on the plaintiffs' land and erecting a wall therein and also the fundamental principle of law where the balance of convenience, which is a guiding factor is considered.
In Shepard Homes v. Sandham supre Megarry J at 412 said "Second although it may not be possible to state in any comprehensive way the grounds on which the court will refuse to grant a mandatory injunctior. in such cases at the trial, they are least include the triviality of the damage to the plaintiff and the existence of disproportion between the detriment that the -injunction would inflict on the defendant and the benefit that it will confer of the plaintiff. The basis concept is that of producing a 'fair result' and this unvolves the existence of a judicial discretion.
Third, on motion us contrassed with the trial, the court is far more reluctant to grant a mandatory injunction then it would be to grant a comparable prohibitory injunction in a normal case the court must
feel a high degree of assurance that at the trial it will a ppear that the injunction was rightly granted and this is a higher standard than is required for a prohibitory injunction. Megarry J. further said it at 412. No doubt a mandatory injunction may be granted-where the case for one is unusually sharp and clear; but it is certain not a matter of course.
It is against the background of the principles of law emuniciated supra that the facts in this case should examined to see whether the learned judge properly exercised his discretion in granting the injunc tion applied for.
The first question in my view is are the facts in the affidavit evidence so simple and clear that the matter can be summarily deposed of in that special circumstances are disclosed which warrant the grant of a mandatory to prevent an obvious breach of thy plaintiff's legal right? Secondly is there much benefit to be deprived by the plaintiff for such an injunction should be granted: Thirdly what detriment the grant will cause to the defendant? Fourthly where does the balance of convenience be.
The guidlints in answering these question one to be found in the decision of the House of Lords in American Cyanamid Company v. Ethicon Limited (1975) 1 AER 504 where Lord Diplock in the case in which the plaintiffs were producers of surgical sutures of filaments made of a particular kind a chain polymed know as "PHAE" which patent was regis-ter©d in the United Kingdom.. A rival company, the defendants were the suppliers of catgut sutures in the United Kingdom. The plaintiff at th time of this action had captured about 15 per cent of the United Kingd market for absorbable surgical suctures. In order to meet the competition from Cyanmide, Ethican proposed to introduce their own artificia suctures ("XLG".) Cyanmide brought a quiet timet action against Ethicon, claiming an injunction to restrain a threatened infringement of their patent by supplying XLG- suctures to the surgeons in the United Kingdom, and gave notice of a notice of motion for an interlocutory injunction.
At the hearing the patent judge held that on the available evidence Cyamamide had made out a strong prima facie case against Ethicon and that on the balance of convenience an interlocutory injunction on an undertaking in damages by Cyanamide, should be granted to maintain the status quo between the parties pending the trial of the action. On appeal the court of appeal reversed the decision on the ground that Cyanamide had not made out a prima facie case of infringement and that there was well established, rule of law that a court was precluded from granting an interlocutory injunction or from considering the balance of conveniences between the parties unless the evidence adduced at the hearing of the application satisfied the court on the balance of probabilities that at the trix the plaintiff would succeed in establishing his right to a permaner injunction, Cyanamide appealed.
On appael to the House of lords the appeal was allowed the cour held that there was no rule of law that the court was precluded from considering whether on the balance of convenience, an interlocutory injunction should be granted unless the plaintiff succeeded in eotablishing a prime facie case or a probability that he would be successful at the trial of the action. That all that was necessary was that the court should be satisfied that the claim was not frivolous or vexatious, that is there is a serious question to be tried. However Lord Diplock in his course of his judgment had this to say. "The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercing his own legel rights for which be could not be adequately compensated under the plaintiff's undertaking in damages
if the uncertainty is resolved in the defendants favour at the trial. The court must weigh the need against another and determine where the balance of convenience lies."
The contention as to what is required for the. plaintiff the show for an injunction to be granted was laid to rest in the above mentioned case, by the words of Lord Diplock at 510.
"Your Lordship should in my view take this opportunity of declaring that there is no such rule. The use of such expressions as a probability 'a prima facie case" a strong prima facie case" in the context of the exercise of a discretionary power to grant an interlocutory injunc tion loads to confusion as the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolo or vexatious, in order words there is a serious question to be tried."
Sir John Pennycuik in Fellows v. Fisher (1975) 2AER 829 aummarised the last sentence of this passage as follows. "Very summarily, unless I misunderstood it, he laid down the following proceedure as appropriate in principle. (1) Provided the court is satisfied that there is & serious question to be tried, there is no rule that a party seeking an interlocutory injunction must show a prime facie case. (2) The cour-must consider whether the balance of convenience lies in favour of granting or refusing interlocutory relief.(3) 'As to that' the court should first consider whether if the plaintiff succeeds he would be adequately compensated by damages for the loss sustained between the application and the trial in which case no interlocutory injunction should normally be granted (4) If damages would not provide an adequate remedy the court should then consider whether if the plaintiff fail the defendant will be adequately compensated under the plaintiff undertaking in damages in which case there would be no reason on this grour to refuse an interlocutory injunction (5) Then one goes on to consider
all other matters relevant to the balance of convenience an impor-tan$ factor in the balance should this otherwise be even being the preservation of the status quo. By the expression 'status quo'
I understand to be meant the position prevailing when the defendant unbarked on the activity sought to be restrained. Different considerations might apply if the plaintiff delays unduly in his application for ralief. (6) Finally, end apparently only when the balance still appears even it may not be improper to take into account in tipping the balance the relative strenght of each parties case as revealed by the affidavit evidence." In the instant case the learned judge in his ruling said at Page 222 of the record."
"Thus having said this I shall now consider the present case in the light of the guidelines laid down in the American Cyanamid Case." (1) In my view there is indeed a serious question,to be tried as which party has a better right to possession of the warehouse based on their respective title deeds. This cannot be disposed of by affidavit evidence in an interlocutory application."
The learned judge itemised issues which he considered relevant for consideration by the trial court. I agree with him that those are pertinent matters to be adjudicated upon by the Court. I also hold the view that there are seriouis questions to be tried.
Next one has to consider where the balance of convenience lief. In considering this the guiding principle is whether an award of damages would be an adequate compensation for the loss sustained by the plaintiffs if the defendants continue in their action between the time of the application and the time of the trial.
From the affidavit evidence of the respondents herein the loss suffered by them by the conduct of the appellants is the deprivation of the use of the warehouse for an expected ship load of rice for
storage facilities see the affidavit of Jesse Reginald Gooding sworn to on 1/12/98 Paragraph 8 thereof. The conduct of the Appellan complained of is their act of trespass, It cannot be in dispute that the remedy for trespass at common law is damages, and the question of damages in cases of this nature is as stated in 10 Halsburys Laws Page 135 2nd. Edition Section 173.
"Where the trespass consists of a wrongful and unauthor rised used of the plaintiffs land the measure of damages is not the depreciation in the value of the plaintiffs land or the amount required to repair the injury which has been suffered but such reasonable payment in the nature of rent as would have been required for a licence to make such use of the plaintiff's land during the period it was so used." The damages payable can also be the rent payable from alternative
The rental value of the warehouse acoording to the. relief claimed in Writ of Summons is U$ 4000 per month, which is quantifi-c&bl@ amount by which the Respondents can be adequately compensated in terms of money for the less suffered by them, which is the deprietion of the use of the warehouse between the time of the application and the time of the trial. Since the loss suffered is quantificable in pecuniary term and easily assessable and the appellants would be in the position to pay them if the respondents were to succeed at the trial the injunction as said by Pennycrik supra, ought not to be granted.
There is no evidence of any irreparable loss to be suffered by the respondents. The affidavit evidence advanced in favour granting the application is that the warehouse was needed for storage facility for the importation of rice and other consumers goods, and for produc to be exported. There is no documentary evidence of this anticipated importation of any of these goods. The ship load of rice is a mere expectation as well as the acquisitior. of produce from the hinderland.
These are expectations which might or might not materialise. There is no documentary evidence as to the margin of profit to be realised if the warehouse was used for storage facility. There is no avidence of loss of trade due to the deprivation of use of the warehouse, which is irreparable, or for which damages could not be adequate remedy.
An example of a loss of trade is the case of Hubbard v. Pitt (1976) GB 142 where certain members of the public disapproved of the extensive development which had taken place in Washington, and they organised protest regularly outside a leading firm of rstate agents which had acted in connection with many land developments in the are: The pickets held placards and distributed leaflets to passers-by; thus impeding access to the premises and deterring potential clients The estate agents obtained an injunction to restrain them and this was upheld by the majority in the Court of Appeal.
Another example of an irreparable loss is the case of Exprese News Paper Limited v. KEYS (1980) 1 WLB 247. Where an Interlocutor Injunction was granted to restrain a trade union from unlawfully inducing a breach of contract by the plaintiffs employees by persue-ding them to support the 'Day of Action', a Political Strike.
In this case the damages claim in the relief are assessable Even if the loss suffered by the respondents are not limited to the damages to be awarded for trespass, the other loss suffered is the removal of their properties from the warehouse, particulars of which are given emounting to Le68,056,000.00 and U$ 42 000.00.
With respect to the learned judge I am of the view that on the evidence adduced by the respondents he can legitimately find that the award of damages would adequately compensate the respondents for the loss suffered. Instead he referred to Paragraphs 10,11,12,and 13 of the affidavit of Alhaji Hassan Bazzy dated 14/10/98 and said "I have carefully considered what is contained in the said affidavit and I hold the view that were the plaintif
to succeed at the trial they would not be adequately compensated by an award of damages for the loss they would have sustained as a result of the defendants In my opinion the learned judge took an erroneous estimation of What consititute the proper damages to be awarded to the respondents in respect of their claim if they are to succeed at the trial. Lord Diplock in the Cyanamid case said:-
"It damages in the measure recoverable at common law would be adequate remedy and the defendant will be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiffs claim appeared to be at that stag."
If theirs is doubt as to the adequacy of respective remedies in damages available to either party or both then it behoves the court decide where the balance of convenience lies. Lord Diplock again said Page 511
"It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies let alone to suggest the relative weight to be attached to them." One of the relevant consideration is whether the grant or refusal of the mandatory interlocutory injunction would work hardship on. either party. Megarry J in Shepard Homes v. Sandham supra at Page 409 said.
"On the other hand, a mandatory injunction tends at least in part to look to the past, in that it is often a means of undoing what has already been done, so far as that is possible. Mandatory Injunction requires the taking of positive steps, and may (as in the present case) require the dismantling or distruction of something already errected or constructed. This will result in a consequent waste of time, money and materials if it
ultimately established that the defendant was entitled to retain the erection."
This was case in which the defendant was ordered to pull down a fence erected in violation of a covenant in a lease.
The claim and the effect of the injunctions granted in this case is for the appellants to remove all goods stored therein including million leones worth of goods under the control of the controller of customs. This no doubt would put the appellants in considerable expense and inconvenience, and thin is more so as the evidence in the affidavit of Jessee Gooding that he was informed that five trucks load of goods were transported end stored in the warehouse by the appellants. I am also of the view that the granting of these injunctions at this stage would in effect granting the respondents the whole of the main relief claimed in the writ, and makes it unlikely that they would proceed to trial, considering the previous litigations on this same matter which were abotted at the alleged instance of the respondents.
The inconvenience the injunctions will cause to the appellants will be serious with no corresponding benefit to the respondents. As I pointed out supra the respondents are not in possession of the goods they intend to have stored in the warehouse. There is even no documentary evidence in form of bills of lading to rice or of their dealership in produce for exportation. The only evidence is that of Jessee Reginald Gooding in his affidavit of the 1/12/98 deposed at Paragraph 7 following inter alia.
"That the said Alhaji Hassan Bazzy has informed me and I verily believe that the plaintiff/respon-dmrt are expecting a ship & ship load of rice and it is their intention to use the warehouse for the storage of same."
Another factor which is relevant for consideration in the exercise of the courts discretion in granting an equitable, remedy is
This was formerly expressed by the maxim. "He who has committed iniquity shall not have equity." In this case it has been contended by the appellants that on the evidence that Mr. Ibrahim Bazzy a partner in the respondent firm lef/a motorcade of armed NP.R.S. Soldiers in March and forcebly entered the warehouse and evicted members of their staff, is a conduct on their part which disentilas them to any equitable relief.
In controverting this allegation is the affidavit evidence of Jesse Gooding sworn to on 5/11/98 in which he deposed in Paragraphs 3 and 4 that he had instructions from Ibrahim 3azzy who is at Lebanon to say that he Ibrahim Baazy departed Sierra Leone in 1990 and that he never lad a convoy of armed personnel to take possession of the warehouse.
I am of the view that this is a very serious allegation which should be controverted by the bast evidence available, I. would have expected evidence in the form of a photostat copy of an entry in his passport of the date of his departure from this country to be exhibited or evidence from the Immigration Department of the date of this departure I think it will be wrong to conclude this question on such tenous evidence by the respondents in the light of positive evidence that he was seen leading a convoy of armed personnel to the warehouse and evicted workers of the appellants therefrom. I find this to be very serious allegation which ought not to be lightly glossed over by the learned judge in deciding the issues before him, as to the relevant conduct of the respondents in the proceedings.
The learned judge at Page 226 stated that the 1st and 3rd appellant, , admitted in their separate affidavits that they were guilty of sharp practise in that they forcibly took over the premises when they knew that the respondents were in occupation and referred to passages in Kerr on Injunction 6th Edition Page 41-42 and Solomon v. Abdod adopting Beoku-Betts J reference to Kerr on Injunctions. These are correct referencesmade but the principle as to what constitute sharp practice
in law was not explained. It cannot in law mean where a party without any devise or antifice gain entrance into a property. There must be evidence of trick or devise perpetrated by the defendant gain entrance into or take over the disputed property. Deceit must be practiced on the plaintiff. In this case the acts of the appellants complained of is a deliberate breaking and opening of the premises and gaining access therein.
In my view the understanding of the learned judge that the evidence referred to on the affidavit of the 1st and 3rd appellants is an admission of sharp praction is a misunderstanding as to what constitute sharp practice. This misunderstanding is my view does not take this case out of the realm of a 'normal case' to one in which there are 'special circumstances' where the court would readily grant a mandatory injunction in an interlocutory application. Since in the view of the learned judge these pieces of evidence constitute sharp practice he could not have rightly applied the principle stated by Megarry J in Shepard Hormes v. Sandham supra that "In a normal case the court must inter alia, feel a high degree of assurance that at the trail it will appear that the injunction was rightly granted." It therefore suffic to say that learned judge misapplied the correct principle of law relevant to the issue before him .
Another factor which also prevailed in the mind of learned judge in granting orders is the definition of status quo and its application in the case before him. At Page 228 of the record he said "My understanding of the decisions and the example is that status quo should not be regarded as the time the defendants took possession of the oremises but must be before they did so."
With respect to the learned judge status quo was stated by Lord Diplock in Garden Cottage Foods v. Milk Marketing Board (1983) 2 AER. 770 at 774 in the following terms. "The status quo is the existing state of affaire; but since states of affairs do not remain static this raises the query; existing when? In my opinion, the relevant status quo to which reference was made in the American Cyanamid case
House in the American Cyanamid case, this also flaws the reasoning by which Ungood Thomas J reached the conclusion that he did as to what constituted the
relevant period for determine what is the status quo".
I find that the learned judge herein full into the same error.
The status in this case must be the period immediately proceeding the issue of the Writ of Summons or the notice of motion herein. This happens to be the same date.
It has also been argued in this court that the learned trial judge failed to adequately advert his mind nor did he give. oroper consideration to the rights of third parties, even though the said rights were mentioned in the affidavit of the 1st appellant.
It is true that the only reference I can find of third parties being mentioned is at Page 226 of the record to which Paragraph 11 of Muse Sums's affidavit was referred to, but made no ruling on the issue raised.
In Maythorn v. Palmer (1960) 11LT 261 the principle is stated that the court in deciding whather or not an injunction should be
granted may take into consideration. the effect that the grant of an injunction would have on third parties. In that case an application for an injunction was refused partly on the ground of the injury it would have on the third party. Here the Controller of Customs has bean use ing the warehouse as a honded warehouse incharge of goods worth million of loones which compliance with a mandatory injunction of this nature will cause considerable hardship on him is finding second storage facility around the departments area, which according to the affidavit evidence of the respondents there is none available, Non-compliance by the Controller with the Injungction will expose him to contempt of court.
I am of the view that the learnand Judge crowed in not taken the interest of the third parties right into account, which is clearly, disclosed in the affidavit evidence before him.
Before concluding this judgment it is partinent to refer to the letter dated 20.9.91 Exh. AL5 and letter Exh AL7 dated 17.3.9 which I consider to be the genesis of this whole dispute.
Exh. AL5 Page 85 reads as follows:-
The General Manager Ministry of Lands, Housing &
Sierra Leone National Motors The Env. Youyi Building Cline Town, Brookfields, Sierra Leone.
RE: POSSESSION OF THE COMMERCIAL WAREHOUSE LEASED TO U.A.C. AND UNILATERALLY OCCUPIED
I am directed to refer to a latter referenced SLD/72/51 Vol II dated 11th September, 1991 addressed to you by the Director of Surveys and Lands and my letter No. SLD/72/51 Vol II of 12th September, 1991 on the above subject and to further inform you that Government has with effect from Tuesday 17th September, 1991 granted a lease of the above-mentioned property to Mesars Ibrahim Bazay and
and sons of 39, Cline Street, Freetown
2. As I have already intimated you when you called at my office op Thursday 19th September, 1991, it is considered expedient that you give up possession of the property to the new leassee not later than Saturday 21st September, 1991. 5. By copy of this letter the Honourable Inspector General of Police is duly informed of the action of the Ministry regardi this government property.
Ag. Permanent Secretary,
Messrs Ibrahim Bazzy & Sons, 37, Cline Street, Freetown,
In reply to this letter the solicitors for Sierra Leone National Motors wrote the following (on Page 93 of the record)
The Secretary of State Department of Lands, Housing & Environment,
Dated 17th March, 1993.
RE: RESPOSSESSION OF COMMERCIAL WAREHOUSE PROPERTY
LEASED TO MESSERS UAC (SL) LIMITED.
Your letter dated 8th instant addressed to our clients Messrs National Motors Limited has been handed over to us with instructions to reply.
We wish to take this opportunity to refer to the contents of our letter to you, Sir, dated the 9th October 1992 in connection with above-nentioned matter. As pointed in our said letter it is our humble opinion that our
clients Messrs National Motors limited are lawfully in possession of the said premises by virtue of the Deed of Assignment dated 9th December 1995 executed pursuant to a written consent granted by the then Director of Surveys and Lands.
Secondly, from admissions made on oath during recent High Court proceedings (instituted and subsequently discontinued against our clients Messrs Ibrahim Bazzy and Sons) Mr. Bazzy made it clear that he knew that our clients were in lawful possession of. the said premises but went all out to botain a lease from Government. In the light of these facts we advised our clients to institute legal procee-dings against Messrs Bazzy & Sons for inducing a broach of contra-ct and for a declaration that the lease granted to them by the Government of Sierra Leone (whilst the lease of our clients was still subsisting) is null and void. This action in still pending before the High Court.
Our further instructions are that despite the appeal to you to await the outcome of the High Court proceedings members of the Security Forces purportedly acting on your behalf have sought to oust our clients from possession and hand over same to Messrs Bazzy and Sons. We wish to take this opportunity to once more crave your indulgence to one-are that the statue quo is maintained until the High Court pronou-noes on the respective right, if any, of the parties. We wish to thank you in advance for your kind co-operation.
(Sgd) Renner -Thomas & Co
In this respect it is prudent to refer to the original lease agreement between the Government of Sierra Leone and the original leassees, The Gold Coast Properties Company Limited.
"The Company for itself and its assigns and to the intent that the obligations may continue throughout the term hereby created covenants with the Government as follows:-......................
(e) Not to assign uaderlet or part with the possession of the demised premises or any part thereby during the term hereby creates without the previous consent in writing of the Government.
There is no reply to the letter Ex AL7 aupra which in my opinion is an admission by Government that it was so induced; and also an admission by Ibrahim Bazzy (sine Ex. AL7 was copied to /him) that he did induce the Government to breach of a term of the agreement solemnly entered into. This undoubtedly is a tort, of unlawfully procureing of a breech of contract commited by the Respondent
This tort is stated suceintly by Lord Denning M.R. is Emerald Construction Company Limited vs. Lowthian (1966) i A.E.H. at Page Page 1017:-
"If the officers of the trade union knowing of the contract doliberetely sought to procure a breach of it, they would do wrong: use Lumley v. Dye (9). Even if they did not know of the actual terms of the contract, but had the means of knowledge - which they deliberately disregarded - that would be enough. Like the man who turns a blind eye. So here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would dp wrong. For it is unlawful for a third parson to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not. Some would go further and hold that it is unlawful for a third parson deliberately and directly to interfere with the execution of a contract, even though he does not cause any broach. The point was left open by LORD REID in J.T. Stratford & Son, Ltd. v. Lindley (10). It is unnecessary to pursue this today. Suffice it that if the intention of the defendants was to get this contract terminated at all events, broach
or no breach they were prima, facie in the wrong," My overall conclusion is that this appeal should be allowed,and the injunctions granted on the 20th November 1998 be set aside.
The Plaintiff/Respondent to pay the cost of the Appeal
Cost XXXX XXX taxed
(Sgd) Hon. Mr. Justice N.D. Alhadi
Justice of Appeal