CHAMBERS v KAMARA (CC 798/06)  SLHC 7 (13 February 2009);
SIERRA LEONE No. CC 798/06 2006 CNO.50
IN THE HIGH COURT OF SIERRA LEONE
CIVIL. JURISDICTION BETWEEN: -
MR ABIOSEM CHAMBERS -PLAINTIFF/RESI'ONDENT
THROUGH HIS ATTORNEY DAVID WILLIAMS CHAMBERES OF 52 UPPER GBENDEMBU CODERICH FREETOWN
ABUBAKARR DIZO KAMARA
NO 10 GOLDEN LANE
MAR.IAY TOWN- GBENDEMBU
FREETOWN - DEFENDAN T/APPLICWNT
EASEMON NATHANIEL BLLDEN NGAKUI - For the Plaintiff/Respondent
BASITA MICHAEL - For the Defendant/Applicant
RULING DELIVERED THIS 13TH DAY OF FEBRUARY 2009 DESMOND B EDWARDS: In this application the Defendant/Applicant is seeking
1. An Interlocutory Injunction restraining the plaintiff whether by himself, his servants, or agents or privies or howsoever otherwise from trespassing entering and /or remaining on the land or any portion thereof, the subject matter of the action herein and from carrying out or continuing the erection of a structure /building /wall on the said land or any portion thereof pending the hearing and determination of the action herein;
2. Any other or further order(s) that this court may deem fit
3. Costs in the cause.
In support of this Application was the affidavit of ABUBAKARR DIZO KAMARA sworn to on the 13th of January 2009 and the supplemental affidavit sworn to on the 21st of January 2009.
The plaintiff/ respondent opposed the graining of the application for on injunction and filed an Affidavit in Opposition sworn to on the 21st of January 2009 which apart from stating that it opposed the application for the granting of the injunction docs not say any thing or address the issue of the granting or refusing of the Interlocutory Injunction pending the hearing and determination of the action.
In his arguments the plaintiff /respondent's solicitor argues
1. That the defendant Applicant had actual notice of their possession before purchase of the property
2. That he who comes to equity must come with clean hands
Such principles are clearly and distinctly irrelevant to the graining or refusing of an Interlocutory injunction and they clearly do not address issues raised in the defendant's affidavit as to why the defendant/applicant is seeking the grant of the interlocutory Injunction In so far as this court is concerned what is relevant in this application is two fold viz
1. Whether there is serious question to he tried?
2.Which way the balance of convenience lies?
A leading case on this is the HOUSE OF LORDS DECISION in the case of the AMERICAN CYANAMID 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 lakes into account is the balance of convenience. At page 399 of the aforementioned case this proposition of law is staled thus:
"One must look at the whole ease to see whether there is a question to he tried and, if there is, then look at the balance of convenience between the parlies bearing in mind that there is good reason why the status quo should he preserved."
This means that the first question to be addressed is whether there is a serious question to be tried?
1. WHETHER THERE IS SERIOUS QUESTION TO BE TRIED?
It is trite law that what this means is that the claim by the Applicant 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 he capable of success at the trial.
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 hurl the Applicant more to go without the injunction pending the trial than it would hurt the Respondent to suffer it ?. Put simply, who would suffer the most from the injunction and if granted whether it would maintain the status quo: the Court must be able to weigh one need as against the other and determine or form an opinion as to where the balance of convenience lies and this constitute the second inquiry.
2. WHICH WAY THE BALANCE OF CONVENIENCE LIES?
To determine this the Court would be enjoined to ask the under mentioned questions.
a) If the application were not to be granted, whether damages would be an adequate remedy in the circumstances after the trial for the Applicant and whether the respondent would be able to pay them.
If the answer to this inquiry is in the affirmative then there is no need to grant the application and the court would do well not to grant it. There would be no need for a further inquiry. But supposing damages would not be an adequate remedy after trial then there would be need for further enquiry and this comes in these terms
b) Is there an undertaken as to damages given by the applicant and is the applicant able to honour it ?
If the answer to this second question under the balance of convenience rule is in the affirmative then the court ought to grant the injunction without any further inquiry. But supposing there is no undertaken as to damages given by the applicant the court would do well to refuse the application and hold that damages would be an adequate remedy.
Having said this, what it means in practical terms is that an applicant would only be entitled to the injunction if it is shown through the affidavit evidence that there would be injustice if the respondent is left unfettered and that there is a serious risk of irreparable damage to him in consequence of which the respondent must be restrained. On the other hand there might not be a serious need for the Applicant to be restrained as damages would be an adequate remedy and the above question do therefore become a means to knowing where the balance of convenience or balance of risk of doing an injustice lies. It is only after the court has ascertained that damages awarded after the trial would be an inadequate remedy that the court would be enjoined to determine that the balance of convenience lies in favour of the applicant by granting the injunction
What ever the scenario maintaining the status quo of the parties must be paramount in the courts agenda as the granting or refusing of the injunction is not the final remedy sought but a pre trial or interlocutory remedy.
In this matter before me. it would seem to me that the plaintiff /respondent was under obligation to consider, whether if the defendant applicant succeeds eventually at the trial he would be adequately compensated by damages for any loss caused by the refusal, if at all. by this court to grant an Interlocutory Injunction? If damages would be an adequate remedy and he the plaintiff/respondent would be able to pay them this court would be constrained not t3o grant the injunction no matter how strong the defendant/s applicant/s counterclaim was evinced to be. The plaintiff/ respondent however has failed refused or neglected to address same. His affidavit in Opposition sworn to on the 21st of January 2009 is silent on this point .In the
circumstances I am constrained to hold that there is nothing before this court to convince this court that damages would be an adequate remedy should the injunction not be granted and I am loathe to decide otherwise. That apart the claim of the Applicant is that the plaintiff is constructing a building on the premises which he claims by his defence and counter claim to be his own. There can't be any doubt that such a structure is being put up as the plaintiff never denied it in his Affidavit in opposition . To allow it to continue would mean it would be built to completion. There is a strong likelihood that it would not be in accordance with the applicant's plans, such that if the applicant succeeds it would be broken down and or be met with monetary compensation. Either way 1 do foresee see a situation wherein apart from being put to the stress of losing a building the plaintiff may not be likely to pay damages even if it could or would be adequate. This being the case. I am forced to move onto the next enquiry which can be put thus: Noting that the defendant /applicant has stated his willingness to give an undertaken as to damages, would that undertaken as to damages be an adequate protection for the plaintiff respondent and would he be able to honour it.
The defendant/ Applicant in his Affidavit in support of the Application sworn to on the 13th of January 2009 staled his willingness to file an undertaken as to damages .I should think that in the circumstances this is important and should offer adequate protection for the plaintiff respondent provided he is able to honour it . The fact that he gives it would suggest he is able to honour it. For every undertaken as to damages would and could be enforced by an assessment of damages by this court as to what loss the respondent actually suffered because of the injunction and Applicant be made to actually pay it. That apart supposing the defendant applicant loses the trial the compensation is likely to come for preventing the respondent from doing that which he was restrained from doing and does not come in actually physically losing anything HOFFMAN LA ROCHE VS SECRETARY OF TRADE AND INDUSTRY 1975AC295
In such circumstances, I think having weighed every thing this is not a case where there would be a serious risk of irreparable damage to applicant in consequence of which the respondent must be restrained but what is almost certain is whether the plaintiff might be able to honour damages should it turn out that the injunction ought not have been refused. In such a situation I
think it could not be doubled that the maintenance of the status quo becomes very important, and I should think, that the interlocutory injunction, being temporary and discretionary ought be granted .
I note the submission by the plaintiff /respondent's solicitor that what the defendant has requested declaration for is land constituted in exhibit E of the affidavit in support measuring only 0.4302acre and not 10.1182 acres which by exhibit D of the affidavit in opposition is the property of the plaintiff. I would only state that the injunction herein is with reference to that property as contained in exhibit E.claimed by the defendant and hereby order as follows."
1. That subject to 2 below an Interlocutory Injunction is hereby granted restraining the plaintiff whether by himself, his servants, or agents or privies or howsoever otherwise from trespassing entering and /or remaining on the land as evidenced by conveyance dated 1 7th October 2006 and registered as No 3229/2006 at page 94 in volume 613 of the books of conveyances the same where is delineated on Survey plan Ls 7606 measuring 0.4302 acre or any portion thereof, the subject matter of the action herein, from carrying out or continuing the erection of a structure /building /wall on the said land or any portion thereof pending the hearing and determination of the action herein;
2. That in order to effect I above, the defendant / applicant be and is hereby required to file an undertaken as to damages in case he fails in the trial pursuant to his defence and counterclaim filed in this action
3. That the costs of this application be costs in the cause.
Hon Mr. Justice Desmond Babatunde Edwards .J