Saio Kamara v Freetown City Council (CivApp 17/2023) [2025] SLCA 2 (29 May 2025)

CIV. APP. 1772023 IN THE COURT OF APPEAL, OF SIERRA LEONE, DETWEEN: SAIO KAMARA 181 APPLICANT /APPELLANT 88 MAIN ROAD, CONGO TOWN FREETOWN FRANCIS KANGIAL 2°" APPLICANT /APELLANT 23SYKE STREET, CONGO TOWN FREETOWN MOMAMED KANA 3°” APPLICANT APPELLANT WATER STREET, CONGO TOWN FREETOWN ELEANOR THOMPSON, 4°" APPLICANT /APPELLANT 17B MURRAY TOWN ROAD. FREETOWN AND FREETOWN Crry COUNCIL, 1 RESPONDENT 17 WALLANCE JOHNSON STREET FREETOWN THOMAS COLLINS PEARCE 2" RESPONDENT COUNCILLOR, WARD 434, FREETOWN MUNICIPALITY M0 MAIN ROAD, CONGO TOWN, FREETOWN FAITHITALING BILE CHURCH 3" RESPONDENT.

53. MAIN MOTOR ROAD. CONGO cross FREETOWN

Coram

HON, MR. JUSTICE R.S. FYNN, JA; PRESIDING, HON. MR. JUSTICE S.A. BAI. JA: HON. MR. JUSTICE A R MANSARAY, 1

COUNSEL: | DE TAYLOR, Esq, for the Applicants/Appellants D BEOKU- BETTS. tq for the 1% and 2" Respondents A KONDOWA, Esq. for the 3" Respondent RULING DELIVERED ON THE: 29 Day OF MAY 2025.

The Application

1. By a Notice of Motion dated the 14" day of February.2023, the applicants/appellants are secking reliefs stated thereon as follows:

4. An interim injunction restraining the Respondents herein whether by themselves, ‘their servants, agents, licensees or privies from continuing any construction project on the land currently occupied by the Ephraim J. Robinson Municipal Primary School) Congo Town pending the hearing and determination of this application,

2. An interlocutory injunction restraining the Respondents herein whether by themselves: their servants, agents, licensees or privies from continuing any construction project on the land currently occupied by the Ephraim J. Robinson Municipal Primary School, Conga Town pending the hearing and determination ofthe action herein

3 leave tw autduce newly discuvered evidence in support of the Applicants /Appellams’ application for judicial review by way of originating notice of mation dated 24 February 2022

4. Any further or other anders)

5. That the costs of this application be casts in cause,”

2. The motion is supported hy the affidavits of Saio Kamara, the 1" applicanvappellant sworn {0 on the 14% day of February, 202; the supplemental affidavit deposed to by Eleanor ‘Thompson, the 4 applicanVappellant on the 24% April 2024; and, an Affidavit in Reply also depose to hy the said 4 applicanv/appeliant on the 5! June 2024,

SUBMISSIONS FOR AND ON BEHALF OF THE APPLICANTS/APPELLANTS

3. DEE Taylor Fs. commenced by referring the Court to SC CIV APP 1/2011 Mohamed Bai Marrow Kamara Vs Mohamed Bai Suma Kamara and the National Electoral Commission: (hereinafier referred to as “the Mohamed Bai Marrow Kamara case”) and

CIV APP 208113 Rub Sayie (S1.) Ltd Vs Ibrahim Bazzy & 3 others, (hereinafter referred

: {04s "the Ru Sayie (SI) Ld case") and stating that the said authorities adopt the principle in American Cyanamid Co, Vs Ethicon Ltd [1975] 1 All ER 504, (hereinafter referred to as“the American Cyananjid Co case”). Thereafter, Counsel submitted the following:

‘hat the application is seeking the Court's disertion/good conscience to grant the injunction in order to prevent certain consequences for which monetary damages ‘would not be adequate. The certain consequences include noise pollution and she averse impacts on the leaming process on school children of Ephraim J. Robinson Municipal Primary Schoo! resulting from the ongoing consiniction activities in close proximity tothe classrooms; and, the susceptibility of dangers to the life and limb of the children of the said schoo

‘that the contactor contemplated danger at the site, and what is being erected and

sheant to be a banicade (of corrugated iron sheets) cannot be reasonably taken in ihe circumstanee, to effectively function as a barricade, as that itself constitute a tisk, In support, he referred to exhibit T1!

& that the balance of convenience lies with the exercise ofthe discretion in restraining the construction in order to prevent risks to life and limb; and in protecting the learning process of the pupils.

4 that there is serious issue to be tried. In support of this submission, Counsel referred to exhibit SKA ~ the Notice of Appcal, stating that this’ question Underscores the purpose of the Appeal

4 In respect ofthe third reliet heing sought —“Leave 1o adduce newly discovered evidence in support of the Applicants /Appellants’ application for judicial review byway of originating notice of motion dated 24 February 2022, Counsel referred to Kenneth Ponsferd Bleady ots Ws Clementina Harding - a Court af Appeal authority (hereinafter refered to 48 “the Kenneth Ponsford Eleady Cae ease"), Counsel thereafler submited the following.

tht the Court of Appeal has adopted the liberal approach and drew a fine line of tistinetion as o shat bans in eu jurisdiction as ayainst the principle in Ladd ve Marshal, based on the interest of justice,

b. That exhibit SK6, w Jeter dated 10 August 2017, which only came to the Knowledge of the Appellant/Applicant shortly before this application was filed, speaks to the gravimen of the eause of action in this Cour, 28 it containe all the | arguments made in support of the injunction being sought

& thatthe Interest of Justice is best served where the tier of both facts and law is ‘med with all the gelevant facts st the material particular to the facts in nsue, and the said exhibit SK6 actually represent nothing less. Counsel, concluded by

Submitting that based on the above submissions, and in the interest of justice, leave

should be granted for the sid exhibit SK6 to be adduced as evidence

5. Inopposing the application for and on behalf of the 1" and 2™ respondents, D. Beoku-Betts Esq,, submitted that he will not be contradicting factual assertions, as he did not file any affidavit in opposition, but will give his own perspectives to what has been deposed to. Further, Counsel submitted as follows:

4. that considering paragraphs 12, 13 and 14 of the affidavit ofthe said Saio Kamara sworn to on the 14" February 2023, there is no evidence or adequate evidence to support a grant of an injunction.

b. that FBIIC has am absolute right to build on the land demised to them by the 1* respondent

©. that with regards the submission thal the construction work would cause irreparable harm, that is a mete conjecture as there is no evidence supporting it.

4. that contrary to what was deposed to at paragraph 14 of the affidavit of the said Saio Kamara, the yranite, sind and building materials are definitely perishable items as it would he washed away during the rainy season and the said granite, sand and building materials are liable to be stolen from the site.

€ that notwithstanding what the 4" applicanvappellant deposed to regarding her visiting the school as a concemed resident and speaking to pupils, teachers and residents living within the vieinity of the school (at paragraphs 7 and 8 of the supplemental affidhvit of the 24" April 2024): and, about her beliefs that the ‘ongoing construction is a ‘hazard for the health and safety of the primary school children in terms of dust, noise pollution’ caused by the ongoing construction, and is “even mote likely to adversely affect the children’s learning process and the quality of their learning environment’ (at paragraphs 9, 10 and 11 of the said supplemental affidavit). there is yet any evidence of any complaint or concern whatsoever from any of the school's administrators, teachers or school children,

that the submission by counsel for the applicants/appellants that the proximity between the classroom and the construction, had an adverse impact on the learning process of the school children, very simply, is a submission without supporting evidence, as there is ww evidence at all showing how the children are affected or the extent of their suffering.

&. that there is no evidence of any risk assessment being conducted and the result of | such risk assessment adduced in evidence.

‘that FLISC dl take steps to mitigate any risk of eonerete blocks or sediments falling ‘off, as they buill a eordon/barricade around the construction site, and construction work ix done when the children are not around, In support counsel referred to the affidavit in oppositiin swor to by Pastor Alfred Sawyer Missalie on the 24° April 2024; the supplemental affidavit in opposition sworn to by the said Pastor A.S. Misstlie om the 27" May 2024; and, the affidavit in rejoinder, also swom to by the same depanent on the 26" September 2024.

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