A legal opinion advising a on the law governing in Sierra Leone.
CIVIL PROCEDURE
ASSIGNMENT
In a three page legal opinion primarily using local case law authorities advice the Plaintiff on the law governing injunctions in Sierra Leone. Evaluate the Plaintiff’s chances of success and the possible arguments that the could likely canvas.
LEGAL OPINION ON THE LAW GOVERNING INJUNCTIONS IN SIERRA LEONE I refer to your instructions for my legal opinion on the law governing injunctions in Sierra Leone and evaluate the Plaintiff’s(Mr. James Small) chances of success and the possible arguments that the Defendant could likely canvas. This legal opinion will rely on the substantive law with regards injunctions, Order 35 of the High Court Rules No. 8 of 2007 and relevant provisions of the Supreme Court Practice Rules 1999 of the United Kingdom.
An injunction is a discretionary order of the court restraining the commission or the continuance of some wrongful act or the continuance of some omission. An injunction is said to be prohibitory if it forbids the commission or continuance of the act and to be mandatory if it directs that a positive act should be done to do some omission or to restore the prior position by undoing some wrongful act. It should be noted that an injunction is not a substantive relief, it is an ancillary relief which is attached to an actual action and on the facts that you have claimed – Per Lord Diplock in Siskina v Distos Compania Naviera SA HL(The Siskina case) 1979 “It presupposes the existence of an action actual or potential claiming substantive relief which the High Court has to grant and to which the orders referred to are but ancillary” and this was recently held by Hon. Mr. Justice Desmond B Edwards in the case of Wilfred Coker v Dolcie Songo Brown 2008 Cc 120/08. So you should have to maintain an action for the , damages for and recovery of possession because it would be your substantive claim which the claim for injunction rely on. There are three types of injunctions which are interim, interlocutory and perpetual. Perpetual injunction finally disposes the rights of the parties and is final until is it a appealed; it is granted after the substantive matter is settle between the parties as was held by E.E. Roberts J.A in the case of Kamara v Kamara Cc. 270/07 2007 SLHC 38 but for the purpose of this legal opinion and based on the facts the law regarding interlocutory injunction would be examined. An injunction (interim and interlocutory under Order 35 rule 1(1) should be supported by an as is stated in Order 35 rule 1(4). are granted when an application is made to the Court pursuant to Order 35 rule 1(1) and (2) if the interim injunction (above) is granted, when the trial is instituted, the has to apply for an interlocutory injunction.
The locus classicus case in determining the of the court when granting an injunction was set out by Lord Diplock in American Cyanamid Co v. Ethicon Ltd 1975 AC 396 The grant of an interlocutory injunction is a remedy that is both temporary and discretionary.
The evidence available to the court at the hearing is incomplete. It is given on affidavit and has not been tested by oral cross-examinationOrder 35 rule 1 (4) of the High Court Rules 2007.
It is not part of the court function at that stage of the litigation to try to resolve the main issue of the matter. In the Sierra Leonean case ofMomodu Jalloh v Alusine Kargbo 2005 cc 348/05it was held by A Showers J where the substantive matter has to be proved that the case has a degree of success before interlocutory injunction is granted but not necessarily determining or resolving the main issue.
The order restraining the defendant from doing acts alleged to be violations of the plaintiff’s legal right is made upon contested facts and will remain contested until final judgment is given in the action.
It is to the risk of injustice to the plaintiff during the period before that uncertainty could be resolved.
The plaintiff must give an undertaking as to damages to the defendant if it turns out that the order should not have been given. Pursuant toOrder 35 Rule 9 of the High Court Rules 2007 The court should consider both parties’ position if they cannot be adequately compensated in damages recoverable in the action if the matter was resolve his favour.
The court must weigh one need against another and determine where,“the balance of convenience”lies, per May LJCayne v Global Natural Resources PLC 1984 1 ALL ER 225.This was applied by Justice A Showers in the case ofMrs. Waffa Hajallie v Alie Sulaiman 2009 cc 183/09where determined the balance of convenience before injunction would be granted.
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The court must be satisfied that the claim is not frivolous or vexatious.(Order 21 rule 17 (1) (b) (c)).
In the Sierra Leonean case of Hussein Abess Musa (for and on behalf of the ) v. Musa Abess Mousa and Others 2006 C.C 745/06 S 2006 M No.
33 Hon Mr. Justice A.B. Halloway RULING delivered this 22nd day of February 2007, the principles of the American Cyanamid case was applied to grant the Petitioner/ Plaintiff injunction restraining the 2nd Defendant/ whether by himself, his servants, agents, privies or howsoever called from continuing the construction of a dwelling house or doing any unlawful act or from further interfering with the piece or parcel of land. But note that as was held by Justice N D Alhaidai in the case of Suma and Others v Bazzy and Sons Civ App 10 1998 that if the guidelines are not applied, an injunction could be set aside. The test in the American Cyanamid case now has a lower threshold and Lord Goff in R v Secretary of State for Transport, Factortame Ltd (No. 2) 1991 AC 603 described as “guidelines” and each case should be considered on its merits and should not be construed to fetter the jurisdiction of the Courts.
Based on the facts you, Mr. James Small would have a high probability of success because based on the the points raised by Lord Diplock in the American Cyanamid case and all the subsequent cases afterwards. However note that the remedy is discretionary and the judge but the discretion is not open ended; in the case of Solomon v Aboud S.C 1950 – 56 ALR SL 21 it was held that the discretion to grant an injunction should be exercised with caution. Note however that your substantive claims (declaration of title, damages for trespass and recovery of possession) be strong and have a high chance of success. The most authoritative case on declaration of title to land is that of Dr. Seymour-Wilson v. Musa Abess 1979 Civ.
App. No. 5/79 decided in the Court of Appeal on 17th June, 1981 (unreported) the Learned Chief Justice held that in a matter for declaration of title to land the plaintiff should prove the strength of his claim over the land as opposed to the weakness of the other’s title; this has been subsequently followed in other cases such as Agbaje v.
Digba & Others C.C. 781/88 1988 T NO.36, judgment delivered in 2007 and Jalloh v. Minister of Lands, Country Planning and the Environment and Another CC186/2004 J.NO.16 Judgment delivered in 2007 P.O. HAMILTON J.A. Further note that since it’s a claim for recovery of land it is less than likely that damages would be adequate to remedy your issues, there is a serious question of law to be tried; yes. Finally where the balance of convenience lay in this action; according to the facts the defendant is not resident in nor does he carry on important economic activity
(activities) on the said the land, so therefore he would not be so inconvenient as to restrain the court from granting the interlocutory injunction on your behalf. This having being said, you have a great chance of success. Even if the plaintiff has proved that there is a serious question of law to be tried, the defendant can still argue that damages (compensation) would be adequate in the case of Wafta v Barrie Civ. App.
62/2005 SLCA 3 G. Gelaga King J.A held that that damages recoverable at common law….would be adequate remedy and the Respondent would be in a financial position 9.
to pay them…I opine that the balance of convenience lies in not granting the injunction that is sought…I, therefore, refuse to grant the injunction and will dismiss the application…” The inconvenience or hardship that he (defendant) would endure would also be an argument against the granting of the injunction. In the case of Jones and Others v Costom Printers and Others CC 132/08 2008 JNO.10 presided over by D.B Edwards the Court did not grant an injunction because it was more likely to hurt the defendant.
The defendant’s possible arguments could range from the position of Philip H Pettit in his book Equity and the Law of Trusts 6th edition at page 514 stated that defences that would be available to the respondent would be that the party seeking it should follow the equitable maxim of “he who come with equity must come with clean hands, and acquiesce and the effect on thirds parties. With regards the consideration of the Court, the defendant could likely state that damages would be adequate, inconvenience (hardship) on the part of the defendant, that the plaintiff’s claim was frivolous and or vexatious, plaintiff’s conduct. If he is desires to oppose the application for an injunction, he must file an affidavit in opposition pursuant to Order 35 rule 1(6) of the High Court Rules 2007. He could further argue that the plaintiff not only must be prepared now to do what is right and fair, but also must show that his past record in the transaction is clean; for, as was said in the case of Jones v. Lenthal, (1669); “he who has committed iniquity…shall not have equity”. The maxim must however, not be taken too widely. Per Brandeis J. In the case of Loughran v.
Loughran, (1934); “equity does not demand that its suitors shall have led blameless lives.” What bars the claim is not a general depravity but one which has “an immediate and necessary relation to the equity sued for”. The defendant could also argue that in the first instance when the bungalow was being constructed the plaintiff acquiesced and could be barred from instituting an action if it has been more than 12 years by virtue of the Limitation Act No. 51 of 1961 and possibly that the subsequent resumption of the work would be just to maintain the structural integrity of the structure and no more. For the substantive claim of trespass the defendant could argue that the defendant could likely canvas would be to deny the acts being complained of, denying the plaintiff’s possession, or setting up (challenging) the defendant’s title. He can also that the action was frivolous or vexation on the part of the plaintiff. But he is has to prove that the action instituted has no legal basis or that facts were misconstrued.
Note that even if the plaintiff wins the motion for an injunction, the defendant can appeal to set aside the interlocutory order; it was held by Kingdom CJ in Kabba v Young 1937 – 49 ALR (SL) 245 that an interlocutory order or judgment is not final not final and does not finally determine the rights of the parties but gives direction for the working out of these rights one step still remaining o perfect the judgment. So meaning even after the injunction would have been granted it presupposes that the plaintiff must succeed in his substantive claims in order for the injunction to be perpetual.
In concluding, I submit that you have great probability of success and the possible arguments the defendant could canvas. And even such arguments could be countered or just have no basis in this case.