C.C. 305/08                   2008                   K No. 50


BETWEEN:         OSMAN KAMARA                     - PLAINTIFF

(alias OTK) (As Lawful Attorney and acting for and on behalf of the Tanker Drivers of the three main Oil Companies (Safecon, NP and Total)



M B WILLIAMS, A F MUSA, E B KAMARA, M CONTEH, J A MAHOI, A K KAMARA  (Together sued as the Interim Committee of the Motor Drivers and General Transport Workers Union Appointed by the Ministry of Employment in 2007)                                        - 2ND DEFENDANT



1. This is an Application dated 23rd September,2008 filed on behalf of the Plaintiff, seeking the reliefs stated on the face of the Motion paper. The first Order prayed for by the Plaintiff has been rendered otiose by the second Order prayed for. The second relief sought by the Plaintiff is that this Court grants an INTERLOCUTORY INJUNCTION RESTRAINING the Defendants, their servants or agents from CONDUCTING ANY PURPORTED ELECTIONS for the filling of positions in the Executive of the MOTOR DRIVERS AND GENERAL TRANSPORT WORKERS UNION pending the hearing and determination of the Action herein. The Plaintiff also prays for an Undertaking in Damages, to be given by himself; that all monies collected from the 4th Defendant herein be paid into a Special Account set up for that purpose, or into the Judicial Sub-Treasury pending the hearing and determination of the action herein; that speedy trial of the action be Ordered; and that the Costs of this Application be Costs in the Cause.


2.  The /Application is supported by the affidavit of OSMAN T KAMARA sworn to on 23 September,2008. Exhibited to that affidavit are documents lettered "A" to "H".

3.   Exh "A" is a copy of what appears to be a Power of Attorney granted by three Chief Drivers of Safecon, NP and Total Oil Companies respectively, to the Plaintiff to institute the present proceedings. "B" is a copy of the Writ of Summons; "C1-9" are respectively, a copy of a receipt dated 9 June,2007 issued by the Professional Drivers Association Transport and General Services Limited to one IDRISSA BANGURA as evidence of the receipt of the sum of Le500,000 in respect of trip to Kenema; another receipt dated 3 Octobber,2005 issued by the same company to one ABDUL SESAY in respect of a trip to Kono; copies of: an undated letter addressed to the Editor of the Standard Times Newspaper by one MUSA CONTEH, Spokesperson for the Drivers for Positive Change; a letter dated 19 February,2002 from the General Secretary of the MD&GTWU to the Acting Operations Manager, Shell Lorry Park; a letter dated 2nd January,2001 from the Ministry of Finance to the General Secretary, Amalgamated Transport Workers Union; a letter dated 17 November,2004 from the MD&GTWU to the S.L. Commercial Bank Limited

4. "D" is a copy of letter dated 11 December,2007 from the Acting Commissioner of Labour to the Secretary-General of the MD&TGWU dissolving the Union's Executive; "E" is a copy of a letter dated 27 Decmber,2007 from the MD&GTWU to the Minister of Employment protesting the dissolution of the Union's Executive; "F" is a copy of a letter dated 1 August,2008 from the Ministry of Finance to the President of the Union, requesting information on the use to which certain trucks had been made; "G" is a copy of an undated Press Release from the Ministry of Employment; "H" is a copy of a letter dated 11 August,2008 from Plaintiff's Solicitors, protesting at the contents of the Press Release;" J1&2" are copies of a statement of account in respect of an account held at the S.L. Commercial Bank Ltd in the name of the "Interim Committee of Motor Drivers".

5. "K1-3" is composed of a copy of a Mandate/Terms of Reference of the Task Force of the Interim Committee of the MD&TGWU dated 20 February,2008; a copy of a Memo dated 27 February,2008 from the Permanent Secretary, Ministry of Employment to the Senior Labour


Inspector, Makeni and others,requesting Police Protection for the Task Force; and a copy of a statement made by M B WILLIAMS Esq, Chairman of the Interim Committee at the Central lorry Park on 5 September,2008.

6. "L" is a copy of the Order of KONOYIMA,J dated 5 September,2008 granting the Plaintiff an Interlocutory Injunction; "M" is a copy of an Undertaking given by the Plaintiff, dated 5 September,2008 in compliance with the Order exhibited as "L". Lastly, "AA" is a copy another Press Release, issued by the Minister of Employment, dated 1 September,2008.

7. This Application has had certain twists and turns. It was filed, apparently in response to the Order of KONOYIMAJ dated 22 September,2008, an Order which is exhibited to the affidavit filed on behalf of the 2nd & 3rd Defendants respectively, and to which I shall later refer. In that Order, the Learned Judge, pursuant to Order 35 Rule 1 Sub Rule 11, SET ASIDE the Injunction he had granted ex parte, in favour of the Appellant on 5 September,2008 and referred to above as "L".

8.  On 23 September,2008 the very day it was filed, this Motion was put before KONOYIMA, J and he heard, wrongly in my view, L. JENKINS-JOHNSTON Esq, on behalf of the Plaintiff, ex parte. The Motion was fixed for a hearing, inter partes, by the Plaintiff's Solicitors on 26 September,2008. It ought not, in my view to have been heard before that date, as it was not yet ripe for hearing. If the Plaintiff felt the need for an Injunction was very urgent, he could have gone ex parte to the Judge on an Application fixed for hearing that day, exhibiting the substantive Motion fixed for hearing on 26 September,2008. In any event, KONOYIMAJ heard Mr JENKINS-JOHNSTON Ex parte, but refused his Application. I agree with KONOYIMAJ that he could not, at that stage, grant an INTERIM INJUNCTION which should last until the end of the Trial, which was what the Plaintiff asked for. The term INTERIM INJUNCTION is no longer used in our Rules. It is still open to a party to apply ex parte to this Court, for an INTERLOCUTORY INJUNCTION at the first instance; the only short-coming is that, unless otherwise Ordered, it lasts for no more than 7 days - Order 35 Rule 1 Sub Rules (7) to (11).

9. On 26 September,2008 when the Motion came up for hearing, KONOYIMA,J was not available. Bearing in mind the urgency of the


Application, since the elections which were restrained were due to be held the very next day, The Hon. The Acting Chief Justice, through TOLLA THOMPSON,JSC, and in exercise of the powers conferred on her by Order 61 Rule 7(3) of the High Court Rules, assigned the hearing of this Application to me. M.P. FOFANA Esq, Counsel for the 2nd & 3rd Defendants respectively, did argue against the fresh assignment before me, but I overruled his objection that same day, and fixed the following Monday the 29th instant for the hearing of arguments from all sides. I also Ordered that no elections should be held until the determination of the Application.

10. That same day, MR FOFANA intimated the Court that he had filed a Motion dated 24 September ,2008 asking this Court to SET ASIDE the Writ of Summons on several grounds of irregularity. I informed Counsel that I would hear that Motion first, the following Monday, on the ground that if it succeeded, the Plaintiff would not be able to proceed with his Application dated 23 September,2008.I did hear that Motion on the said Monday, and refused the same for the reasons recorded in my minutes of the proceedings at page 5.

11.I now turn to the hearing on Monday the 29th ultimo. MR JENKINS-JOHNSTON made his Application, relying on the affidavit of OSMNAN T KAMARA, and on the documents exhibited to that affidavit, and which I have described, supra. MR FOFANA relied on the affidavit of MUCTARR BABATUNDE WILLIAMS sworn to on 24 September,2008 in opposition to the Plaintiff's Application; and with leave of the Court, after Ordering that the Constitution of the Union, the list of registered eligible voters, and the list of delegates to the elective conference be exhibited to affidavits to be sworn and to be filed before close of business on 3 of September ,2008, he was heard in reply to MR JEN KINS-JOHNSTON'S

Application. I also heard in opposition to the Application S R KABBA Esq, for and on behalf of the 1st Defendant. He submitted that 1st Defendant was an incorporated body, and that it wanted to the elections to be held. He was granted leave to file an affidavit on behalf of the 1st Defendant exhibiting a copy of the 1st Defendant's M & A, and a list of the Union's membership. EEC SHEARS-MOSES Esq appeared on behalf of the 4th Defendant. He did not make any submissions, as the Injunction applied for by the Plaintiff would not affect his client one way or the other.


12. To return to the affidavit in opposition deposed to by MR WILLIAMS, firstly, he contests the locus standi of the Plaintiff to bring proceedings against the Defendants. He contends that the principals on whose behalf, MR KAMARA purports to act are "loose and unascertainable, and that they are not, as a class or group of persons/drivers, members of the (MD&TGWU) pursuant to article 4 of the Constitution of the ....Union." Article 4 is reproduced in Exhibit "MBW1" attached to his affidavit. It sets out the criteria for membership of the Union. He deposes in para 2 of his affidavit that the Plaintiff and the persons he represents, are not fully paid-up members of the Union, and cannot therefore bring the Action herein. In para 3, he deposes that the Plaintiff is the National Organizing Secretary of the Indigenous Transport Owners Association (ITOA) an employers' organization; and as such, the Plaintiff cannot at the same time purport to represent persons who are employees in the transport business. In support of this contention, he exhibits as "MBW2" a copy of a Notice dated 21 July,2008 issued by the Plaintiff in his capacity as National Organizing Secretary of the ITOA; and "MBW3" a copy of an extract from Gazette No.55 dated 31 October,2005. He refers to his statement exhibited as "K3" to the Plaintiff's affidavit, and argues that his Interim Committee was only mandated to hold elections, and not to hold the out-going Executive accountable for their stewardship; that activity could be carried out by the in-coming executive.

13. He contends further that the Plaintiff has not shown that irreparable damage would be caused to his interests if the Injunction were not granted. On the contrary, he argues, the 2nd and 3rd Defendants have been put to great financial loss as a result of the ex parte Injunction granted in favour of the Plaintiff by KONOYIMA,J on 5 September, 2008. The loss has been categorised and quantified in "MBW4.I have looked at the contents of "MBW4." It seems to me, that the loss which could be attributed directly to the effects of the Injunction, are those listed in item 6; legal costs would be dealt with on the basis of the party which succeeds in these proceedings.

14. He deposes in paras 10 & 11 that there is overwhelming support from Union members for the elections to proceed; and that Union delegates . who travelled to Freetown for the elections are still here, and that their prolonged stay is causing hardship to the Union; in response to the latter


issue, my preliminary remark would be that in civil proceedings, parties are expected to mitigate their loss. They are not at liberty to go on accruing expenses in the expectation that its would certainly recover their expenses at the end of litigation

15. The other matter deposed to in para 12 is of more serious nature. He deposes that the matters deposed to in para 15 of the Plaintiff's affidavit amounts to, and pose a threat to the judicial process. Para 15 appears innocuous to me; I believe he must have been referring to para 16, which was the paragraph referred to by Counsel when addressing the Court. Para 16 reads: "That we have sought this injunction because we believe in the Rule of Law and do not want to take matters into our own hands, because if we (Tanker Drivers) go on strike, it can bring the whole country to a standstill as there will be no more fuel for anyone." I view the threat of a strike which would cripple our ailing economy with profound concern. It appears to me that the Plaintiff is saying that if the Court does not grant the Application because, for instance, it lacks merit, or is deficient in some way or the other, there will be chaos fomented by the Tanker Drivers. I am prepared to assume for present purposes, that if strike action is taken by any person or body of persons without strict adherence to the laid down principles, or without due process, the Law Enforcement agencies will deal with the illegal action promptly and efficiently. If, by those words, the Plaintiff contemplates a threat to the Court process, I am certain it will be met appropriately with and by the forces of Law and Order.

16. As stated earlier, Leave was granted to all parties to file additional affidavits before close of business on the 30th ultimo. The 1st and the 2nd and 3rd Defendants respectively, have taken advantage of the Leave 6 granted, and have filed additional affidavits.

17.I shall start with that filed by MUCTARR BABATUNDE WILLIAMS on behalf of the 2nd Defendants. He deposes that the MD&TGWU was registered as a Trade Union on 1 February,2001 pursuant to the Trade Union Registration Rules, Cap 221. The certificate of registration is exhibited to his affidavit as "MBW5"

18. He insists that the Plaintiff and those whom he represents are not members of the Union, and cannot therefore bring the action herein; a fortiori, they cannot properly make this Application. He exhibits the membership entry books as "MBW6a-c." He deposes further that the

Plaintiff has failed to exhibit his, and his principles' individual completed membership declaration and subscription forms, respectively. He exhibits a sample of the membership declaration as "MBW7." He refers to Art 4 of the Constitution of the Union, and exhibits a copy of that Constitution as "MGW8." He deposes that the various regional offices of the Union, in anticipation of the elections have forwarded to him a list of delegates who are to participate and vote in the pending election conference. That list is exhibited as "MBW9a-d." Finally, he asks that Exhibit "MBW6t be returned to the Union after the Court's Ruling. That will certainly be done, as the Court does not wish to hamstring in any way, the lawful activities of the Union.

19.I now turn to the affidavit in opposition sworn to by ABU BAKARR

SILLAH on 30 September,2008 and filed on behalf of the 1st Defendant herein. Therein, MR SILLAH deposes that he is the Past President, and MOSES GENOA is the Past Vice President of the MD & TGWU. The Constitution of the Union is exhibited as "ABS1"; that during his tenure of office, he was instructed by the "past Government that vehicles which would be loaned to the Union (could) only be (loaned) if the Union (had) a registered company that (would) be acting on behalf of the Union to receive the said vehicles, and to pay for the same. That on the 16th day of September,2005 (probably 2004) the PDA transport and general services company limited was incorporated." A copy of the M&A, and copies of Licences issued to this body, are exhibited as "ABS2 (1-6)." I note, firstly, that the Memorandum of Association is undated, and uncertified. The Articles on the other hand are dated 16 September,2004 but also uncertified. The certificate of incorporation dated 16 September,2004, a Licence dated 20 September,2004, a renewal certificate dated 19 February,2005, another renewal dated 20 February,2006, yet another dated 5 April,2007 and a certificate of registration comprise this exhibit.

20.When Leave was granted to MR KOROMA to file this affidavit, it was on the basis that he was going to provide the Court with evidence that his clients, compositely described as 1st Defendant, were an incorporate body. The evidence he has now produced to the Court is of the incorporation of the 3rd Defendant, who are not his clients, but are clients of MR FOFANA. He has not indicated whether MR FOFAtiA's consent to this trespass on his, MR FOFANA's clients' preserve was


obtained. In short, "ABS2 (1-6) does not really advance the 1st Defendant's cause. It may possibly assist the case presented by the 2nd Defendant in so far as the list of the initial subscribers to the M&A, excludes the names of the Plaintiff and of his principals. But this list is not conclusive as to the present membership of the company. The legal maximum is 50 members; it is not conclusive evidence that membership was never obtained at a date or dates subsequent to 16 September,2004.

21.I now turn to the Law applicable to Applications of this nature. The principles enunciated in the AMERICAN CYANAMID case are still applicable the Plaintiff must establish that he has a good arguable claim to the right he seeks to protect; the Court must not attempt to decide this claim on the affidavits; it is enough that the Plaintiff shows that there is a serious issue to be tried; if the Plaintiff satisfies those tests, the grant or refusal of an Injunction is a matter for the exercise of the Court's discretion on the balance of convenience. The White Book tells us also that "where neither side is interested in monetary compensation and the decision on the Application for an Injunction will be the equivalent of a final Judgment......the Court should not grant an Interlocutory Injunction...merely because the Plaintiff is able to show a good arguable case, and the balance of convenience lies in granting an Injunction; instead, the Court should assess the relative strength of the parties' cases before deciding whether the Injunction should be granted.....where the acts of a public body are in question the public interest is an important factor and qualifies the ordinary financial considerations.....a public authority should not be restrained by an Interlocutory Injunction from exercising its statutory power unless the Plaintiff shows that there is a real prospect that he will succeed in his claim for a permanent Injunction at the trial."                                                                   

22.In deciding where the balance of convenience lies, the principles the Court should bear in mind are: first, is whether damages would be a sufficient remedy; if so an Injunction ought not to be granted. Damages may also not be sufficient if the wrong is a) irreparable, or b) outside the scope of pecuniary compensation, or c) if damages would be difficult to assess. It will be, generally, material to consider whether more harm will be done by granting or by refusing an Injunction. I must also consider whether, the granting of an Injunction is the only way the Plaintiff could seek to enforce the requirements of the provisions in the Union's


Constitution, relating to the holding of elections. The Plaintiff must also give an Undertaking as to Damages.

23.The first question I have to consider whether the Plaintiff is entitled to the right he seeks to protect: that is the right to ensure that the former Executive of the MD&TGWU renders an account of its dealings before elections are held to positions in the Union's Executive; also, that the prerequisites for the holding of an election are met, before such elections are held. The Defendants contend that the Plaintiff is not a fully paid-up member of the Union, a matter which the Plaintiff disputes. They also contend that the Plaintiff's position as National Organizing Secretary of the ITOA, is incompatible with his membership of a Union. That contention is not necessarily true, for as UPJOH.L.J said in the Court of Appeal in BOULTING v ASSOCIATION OF CINEMATOGRAPH T.V. & ALLIED TECHNICIANS [1963] 2 QB 606 "true it is as Directors they are not employees, but it cannot I think, be doubted that a managing director may for many purposes properly be regarded as an employee."

24.The Plaintiff's name does not appear in "MBW6a-b". In Exhibit "OTK2" the Plaintiff is listed at no.11 as Sub Interim Committee Organiser. This is not of itself conclusive. In the Writ of Summons, Exhibit "B" the Plaintiff avers in para (1) of the Particulars of Claim, that he is a member of the Union. I cannot at this stage, in accordance with the principles set our above, decide whether this is so or not on the basis of affidavit evidence. It is my view, and I so hold, that the issue of whether the Plaintiff is indeed a fully paid-up member of the Union is one which would have to be decided at the Trial. I am of the view that he has shown that , he has a good arguable claim to the right he seeks to enforce: that is the right of a member of the Union to demand that an account be rendered by the former Executive of its stewardship. In support of this view, I rely on Art 6 of the Union's Constitution, exhibited to Mr WILLIAMS's affidavit as "MBW8." There, it is stated that (e) the business to be conducted at the quinquennial conference shall be......(iv) Executive Committee's; (v) Treasurer's Report and the adoption of the quinquennial financial statement and balance sheet; (vi) Auditors' Report. The 1st, 2nd and 3rd Defendants, individually and collectively, have not attempted in these proceedings to show that they are prepared in these respects to hold elections. I accept, on the basis of Exhibit "MBW9a-d" that they have prepared the List of Delegates; but this is not all that is


required for the holding of elections. I deem it unconscionable that there is a rush to hold elections without holding those who have held office accountable for their past stewardship; it is even more unconscionable that members of the old Executive might, without this Court imposing any restrictions, be canvassing for positions in these elections, without first accounting to the delegates for their past stewardship. I accept that because of the tortuous manner in which para (e) of the Constitution is framed, the agenda items I have listed above, appear to be optional. But I cannot envisage a situation where persons who have held executive office in an important body such as a Union, will be vying for office again without accounting to its membership, irrespective of whether such membership is loose or compact as suggested by the Defendants.

25. At the same time, it is my bounden duty to protect the rights of those members of the Union who are opposed to the Plaintiff's claim. It appears from the affidavit evidence filed, that they wish elections to be held without any further delay. In protecting their interests, I shall take judicial notice of the level of literacy or illiteracy as the case may be, in Sierra Leone in general and amongst those carrying on the business of Union members. Membership of the Union does not require the abilities of an intellectual; the niceties and fine points of the Union's Constitution may not necessarily be matters with which they are familiar or conversant. Demagoguery is not unknown in Union affairs. In order to provide such protection until the hearing and determination of this action, it is necessary therefore that certain things have to be done before such elections are held, notwithstanding the granting of the Injunction sought by the Plaintiff. At the end of arguments, I invited Counsel to nominate one person for each party, whom they would wish to take part in conducting the elections. MR JENKINS-JOHNSTON nominated JOHN SESAY of TOTAL on behalf of the Plaintiff. I have not received nominations from the others.

26.To the question whether there is a serious issue to be tried, the answer is a resounding yes. The next question is where does the balance of convenience lie? It is clear that the Plaintiff's claim will not be satisfied by monetary compensation. If the elections go on as already planned, without accounts being rendered, he claims his rights will be violated. If the Injunction is refused, and elections were held, would this lead to an effective determination of the action herein? The Plaintiff prays for


several reliefs in his Statement of Claim, only one of which is the granting of an Injunction. But the other reliefs prayed for are intimately related to the question of accountability. Where the Injunction to be refused, would not such refusal result in the election to executive office, of persons who are perhaps answerable for the queries raised by the Plaintiff in paras (1) (2) (3) and (6) of his prayer in his Statement of Claim? Would I not in so refusing, be deciding these issues before trial.? It seems to me that the refusal of an Injunction at this stage would result in these fears being realised. In coming to this conclusion, I have taken into account the monies expended by the 2nd Defendants on behalf of the 1st Defendants, in making preparations for these elections, notwithstanding my view that the 2nd Defendants have no one to blame but themselves for arranging elections before finding out what the previous administration had done whilst in office.

27.In the result, I hold that the Plaintiff has made out a case for this Court to grant an Interlocutory Injunction. It would however be granted on very stringent terms.

28.The Order of this Court is as follows:

An Interlocutory Injunction is granted RESTRAINING the holding of elections to Executive positions in the MOTOR DRIVERS AND TRANSPORT AND GENERAL WORKERS UNION UNTIL the under-mentioned matters are settled, affirmed, accepted or confirmed by this Court. The matters referred to above are as follows:

(i) The Plaintiff shall provide proof to this Honourable Court that he

and his Principals are fully paid-up members of the 1st Defendant Union. Such proof shall be filed in this Court. Such proof is a condition precedent to the execution of the other Orders mentioned hereunder.

(ii) The Plaintiff shall give a fresh UNDERTAKING to indemnify all of

the Defendants in the event that it should held that this Injunction ware wrongly granted. Such UNDERTAKING shall take the following form: A Bond or Guarantee entered into by at least two persons (inclusive of the Plaintiff and his Principals) or companies or other entities in the sum of Le50 million each, that they shall pay the said sum to the Defendants collectively in the eventuality envisaged above. The Bond or Guarantee shall be


supported by such proof that the Court will find acceptable, that the Bondsman or Guarantor has the means, or is in a position of satisfying the Bond or Guarantee.

(iii)  The persons holding office in the said Union, particularly the Treasurer or any other person dealing with monetary matters in, and for and on behalf of the Union shall submit a detailed statement of account of the Union's financial affairs for the years 2001-2007 to the Union's Auditor or Auditors within 2 weeks of the date of this Order.

(iv) The Auditor or Auditors shall submit the financial statements for these years 2001-2007 to the 1st Defendants for their consideration and comments within 4 weeks of the date of this Order. The 1st Defendants shall respond to the matters raised in these financial statements in their management letter within 4 weeks 3 days of the date of this Order. The Audited Statements of Accounts shall be filed in this Court within 5 weeks of the date of this Order.

(v)  If the Union has no appointed Auditor or Auditors, this Order authorises the appointment of the Auditor-General to carry out the exercise at and for such remuneration as shall be agreed between the 1st Defendants and the Auditor-General.

(vi)  The 2nd Defendants, the Ministry of Employment and Social Security and the Ministry of Finance, shall render such assistance to the 1st Defendants as shall be necessary to ensure that the above Orders are duly executed.

(vii) The list of Delegates exhibited to MR WILLIAMS' affidavit as "MBW9a-d" shall, subject to review by the Plaintiff and his Principals, provided of course that there has been compliance with (1) supra, and by the Ministry of Employment and Social Security, be filed in this Court within 4 weeks 4 days of the date of this Order. It shall be deemed the authentic list of persons who are eligible to attend, and to vote and to be voted for at the elections.

(viii) Within 5 weeks 5 days of the date of this Order, the Plaintiff or the Defendants shall be at LIBERTY to apply to this Court for a date to be fixed for the holding of elections to the Executive of the MDATGWU.


(ix)  There shall be LIBERTY TO APPLY for the abridgment or extension of time for complying with any of the above Orders, or for any other matter relating to the execution of the said Orders

(x)  Each party shall bear its own Costs.

No party shall use provocative and/or insulting language against the other within the period of 5 weeks 5 days covered by the above Orders. All parties are expressly forbidden to litigate or to attempt to litigate, or to arouse sympathy in the public arena until further Order. Disobedience of this Order shall be punishable as Contempt.

N. C. BROWNE-MARKE Justice of Appeal 7 October,2008.