Harriet R. B. Danjaji And Another v Walcut Metzeger And Others (CC 125 of 2019) [2022] SLCA 19 (18 November 2022)

C.C. 125/19 2019 D. NO. 10 IN THE HIGH COURT OF SIERRA LEONE LAND AND PROPERTY DIVISION BETWEEN: HARRIET ROSEMARIE B. DANJAJI (NEE COKER) - PLAINTIFFS/RESPONDENTS MRS. JAMES COKER (SUING AS BENEFICIARIES TO THE LAST WILL AND TESTAMENT OF ELKANAH ERASTUS COKER DECEASED) AND WALCUT METZEGER - DEFENDANT GILPIN JACKSON - 2" DEFENDANT/APPICANT SYDNEY LISK - DEFENDANTS ARNOLD BISHOP GOODING HAWA SESAY C.B. COX ADMINISTRATOR & REGISTRAR — GENERAL (added by an order of Court) COUNSEL J. Benjamin (Ms). for 2" Defendant/Applicant S.S. Kamara Esq. for Plaintiffs/Respondents RULING DELIVERED THIS 18TH DAY OF NOVEMBER 2022 BY HONOURABLE MRS. JUSTICE JAMESINA E. L. KING J.A

1. By Notice of Motion dated 3” February 2022 the 2" Defendant/Applicant applied to this Court for the following orders

1. That this Honourable Court grants an injunction restraining the Plaintiff/Respondents herein from interfering or building or doing any form of development on the property of the 2 Defendant/Applicant

situated at Old York Road Sussex in the Western Area of the Republic of Sierra Leone delineated on Survey Plan No. L.S. 1626/83 dated 7" July 1983 and measuring 0.4984 acre pending the hearing and determination of this application.

2. That this Honourable Court grants an injunction restraining the Plaintiff/Respondents herein from interfering or building or doing any form of development on the property of the 2" Defendant/Applicant situated at Old York Road Sussex in the Western Area of the Republic of Sierra Leone delineated on Survey Plan No. L.S. 1626/83 dated 7" July 1983 and measuring 0.4984 acre pending the hearing and determination of this action.

3. That this Honourable Court grants an injunction compelling the Plaintiff/Respondents herein to remove the zinc structure which they have constructed or caused to be constructed on the property of the 2° Defendant/Applicant situated at Old York Road Sussex in the Western Area of the Republic of Sierra Leone delineated on Survey Plan No. LS. 1626/83 dated 7" July 1983 and measuring 0.4984 acre pending the hearing and determination of this application.

4. That this Honourable Court grants an injunction compelling the Plaintiff/Respondents herein to remove the zinc structure which they have constructed or caused to be constructed on the property of the 2" Defendant/Applicant situated at Old York Road Sussex in the Western Area of the Republic of Sierra Leone delineated on Survey Plan No. L.S. 1626/83 dated 7" July 1983 and measuring 0.4984 acre pending the hearing and determination of this action.

5. That this Honourable Court grants any further or other reliefs that may be necessary in this application.

6. That the costs of this application be costs in the cause.

2. The application is supported by the affidavit of Ayorinde Gilpin-Jackson sworn to on the 3” of February 2022, Attorney of Ayodele Beatrice Henrietta Gilpin- Jackson the Administratrix of the Estate of Roderick Claudius Omotayo Gilpin- Jackson. Exhibited to that affidavit are copies of the Power of Attorney dated 21" May 2021, Letters of Administration in respect of the Estate of Roderick Claudius Omotayo Gilpin-Jackson, Registered Deed of Conveyance of the said Roderick Claudius Omotayo Gilpin-Jackson dated 14" July 1983, the Writ

instituted in this action and the Defence and Counter-claim of the 2% Defendant/Applicant as well as two other documents mentioned in paragraphs 6-8 thereof.

3. Paragraph 6 — 8 of the said Affidavit states as follows:

6. That sometime in July 2018 one Bobby also known as Bobby Kanu who claimed to be a caretaker and agent of the Plaintiffs/Applicants trespassed upon the 2" Defendant/Applicant property at Old York Road Sussex aforesaid uprooted all the property beacons and pillars affixed or erected thereon. This action by the Said Bobby Kanu was reported by me to the Anti-Lands Grabbing Unit stationed at the Lumley Police Station. Copies of the request from the Lands Grabbing Unit at the Lumley Police Station to the Ministry of Lands to investigate the differing claims to the property at Old York Road which was identified as the underlying cause for the removal of the aforesaid beacons and pillars is now produced shown to me and marked AGJ6.

7. That sometime in 2021 the Plaintiffs/Respondents caused a zinc structure to be erected on the property of the 2” Defendant/Applicant which is occupied by someone appointed by the Plaintiffs/Applicants. The erection of the zinc structure was overseen and facilitated by Bobby Kanu. Copies of photographs of the property at Old York Road Sussex showing the structure erected on the 2 Defendant/Applicant’s property are now produced shown to me and marked AGIG6A-E respectively

8. That the aid of this Honourable Court is prayed to compel the Plaintiffs/Respondents to remove the structure which they have erected or caused to be erected on the 2 Defendant/Applicant’s property at Old York Road Sussex, for the person occupying the same to vacate the property and to restrain the Plaintiff/Respondents from interfering, building or doing any form of development on the property of the 2” Defendant pending the hearing and determination of this application and of this action.”

4. Counsel for the Plaintiffs/Respondents opposed the application of the 24 Defendant on the grounds that firstly the Defence and Counterclaim was not served on them which contravenes Order 21 Rule 2(1) of the High Court Rules 2007 as well as the Court's order granting leave to file same. He relied on Order 46 Rule 10 of the High Court Rules for his submission that the 2° Defendant/Applicant’s failure to comply with the condition of service of the Defence and Counter Claim in the said order granting leave is deemed to be a

waiver of the said order. As such he submitted that because the pleading was not served, it is not properly before the court. He also noted that the order granting leave to file the Defence and Counter-Claim is dated 5 March 2021 and the application for leave to file was dated 21% November 2021. These he submit are all in support of his contention that there is no defence and Counterclaim on behalf of the 2" Defendant/Applicant before this court and as such there is nothing before this court to show that there is a serious issue to be tried between the Applicant and the Plaintiff that would warrant the court to grant an injunction in favour of the Applicant. He relied on American Cyanamid Co. v. Ethicon Ltd. (1975) A.C. 396, HL and paragraph 29/1/2 of the Supreme Court Practice 1999 at page 565.

5. Counsel’s second ground of opposition is that the 2 Applicant are asking for orders of mandatory injunction as opposed to a prohibitory injunction and relied on Paragraphs 29/L/1 of the Supreme Court practice supra and submitted that the 2" Defendant/Applicant has failed to meet the requirement in order to be granted a mandatory injunction and is therefore not entitled to the orders sought herein. He referred to the case of Dr. Stanella Beckley v David Chambers Civ/App 61/2012 dated 28 February 2013 which adopted the said requirements of an unusually strong and clear case on the part of the Applicant.

6. In reply, Counsel for the 2% Defendant/Applicant submitted that the Court Order granting leave to the 2" Defendant/Applicant to file a Defence and Counterclaim is dated 6" December 2021 and not 5" March 2021 as alleged by Counsel for the Plaintiffs/Respondents. Counsel also submitted that there were no specific orders regarding service of the said Defence and Counterclaim and therefore the order of 6" December 2021 was not contravened. She further submitted that the application for leave was served and it was not opposed and it was granted. She submitted that in the absence of an affidavit in opposition, the facts stated in the affidavit in support are not contended. She conceded that indeed Counsel for the Plaintiffs/Respondents were not served with the Defence and Counterclaim and apologised to Counsel. She however pointed out

that the Plaintiffs/Respondent had received the Defence and Counterclaim of the 2" Defendant/Applicant and which is exhibited in the affidavit supporting the Notice of Motion of 10" November 2021 as AGJ7. She submitted that the Plaintiffs/Respondent did not oppose that application having received AGJ7.

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