Hussein Abess Musa (for and on behalf of the beneficiaries) v. Musa Abess Mousa and Others (C.C 745/06 S 2006 M No. 33)  SLHC 9 (22 February 2007);
C.C 745/06 S 2006 M No. 33
IN THE HIGH COURT OF SIERRA LEONE BETWEEN:
HUSSEIN ABESS MUSA PLAINTIFF/APPLICANT
(FOR AND ON BEHALF OF THE BENEFICIARIES
OF THE ESTATE OF MUSA ABESS MOUSSA)
4 SIAKA STEVEN STREET
MOHAMED ABESS MUSA 1st DEFENDANT/RESPONDENT
C/O 4 SIAKA STEVEN STREET
KHALEL M. LAKISS 2ND DEFENDANT/RESPONDENT
24 RAWDON STREET FREETOWN
E.N.B. NGAKUI esq. FOR THE PLAINTIFF/APPLICANT
E.E.C. SHEARS-MOSES esq. AND
V.M. SOLOMON FOR THE 1st DEFENDANT/RESPONDENT
J.B. JENKINSTON FOR THE 2nd DEFENDANT/RESPONDENT
RULING DELIVERED THIS 22ND DAY OF FEBRUARY 2007
A.B. HALLOWAY, J.
The Application herein is principally for an injunction restraining the 2nd Defendant/Respondent 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 situate lying and being at No. 45 Signal Hill Road, Wilberforce, Freetown in the Western Area of Sierra Leone; the subject matter of the action herein pending the hearing and determination of the action herein.
I have read the notice of motion herein together with the affidavits in support of the application herein and the affidavits is reply to the affidavits in opposition of the said application with all the exhibits attached to the said affidavits. I have heard E. N. B. Ngakui of counsel for the Plaintiff/Applicant and considered the submission made by him. I have also read all the affidavits in opposition to the application herein with all the exhibits attached to the said affidavit. I have heard E.E.C Shears-Moses Esq., of counsel for the 1st Defendant/Respondent and also heard J.B. Jenkins-Johnston Esq., of counsel for the 2nd Defendant/Respondent and considered the submissions made by them.
The submissions made by counsels on behalf of all the parties herein have generously referred to AMERICAN CYANAMID V ETHICON which obviously is a locus classicus in determining applications for injunctions in all cases. In my view the American Cyanamid case lays dowr a number of principles that a court faced with such an application as this, may consider in granting or refusing an interlocutory injunction and these are the principles which I have considered in determining the application herein.
The first of these principles is that the court must be satisfied that the plaintiff's claim is not frivolous or vexation, i.e., that there is a serious question to be tried. After assuring the court that the claim is not frivolous or vexation the court must then be satisfied that the materials made available to the court at the hearing of the application for an injunction disclose that the Plaintiff has a real prospect of succeeding in his claim for a permanent injunction at the trial. Unless this is done, the court should go on to consider whether the balance of convenience lies in granting or refusing the interlocutory reliefs sought. Reference in this regard is made to page 510 of the American Cyanamid. It is apparent from this case that the balance of convenience can only be considered where the Plaintiff fails to disclose a real prospect of succeeding in his claim for a permanent injunction. So to determine whether the Plaintiff/Applicant herein can obtain an interlocutory injunction prayed for I have considered (1) whether the plaintiff's claim is not frivolous or vexation and then (2) satisfy myself as to whether upon the materials available to me in the course of the application herein, the Plaintiff/Applicant has disclosed a real prospect of succeeding in his claim for a permanent injunction. It must be re-iterated that should the Plaintiff/Applicant not satisfy me in respect of (1) above the application herein fails. If he satisfies me in respect of (1) and (2) above, the application herein will succeed and there will be no need to consider any balance of convenience. However, if I am not satisfied in respect of (2) above, I shall be obliged to consider whether the balance of convenience lies in granting or refusing the interlocutory injunction herein prayed for.
In respect of the first test, I am satisfied that the plaintiff's claim is not frivolous of vexations, the writ of summons herein marked 'HAM 6' and attached to the affidavit in support of the application herein discloses a serious questioned to be tried viz whether a conveyance executed by the administrator of an estate, in which the Plaintiff is beneficially interested without the consent of the Plaintiff/Applicant and the other beneficially interested persons and/or an order of a court, in favor of a third party can be cancelled. Certainly the said claim is neither frivolous or vexations.
In respect of the second test, it must be initially stated that the prospect of the Plaintiff/Applicant's success has to be investigated to a limited extent. Reference in this regard is made to the Supreme Court Practice 1999, Volume 1 at Page 566, paragraph 29/L/4. All that has to be seen is whether the Plaintiff/Applicant herein has prospect of success, which in substance and reality exists. In this regard I am satisfied that the materials made available to this court showing that the conduct of the 1st Defendant/Respondent as Administrator of the estate of Musa Abess Musa in selling No. 45 Signal Hill Road, Wilberforce Freetown, the subject matter of this application herein and which forms part of the estate Musa Abess Musa without the consent of all persons beneficially interested including the Plaintiff/Applicant herein and or without an order of the court to the 2nd Defendant/Respondent which is a violation of a legal right, specifically a violation of Sec 21 of the Administration of Estates Act Cap 45 of the laws of Sierra Leone, discloses that the Plaintiff/Applicant has a real prospect of success in his claim for a permanent injunction. I hasten to state however that thisby no means show that the Plaintiff will succeed in his claim for a permanent injunction. For one, the evidence available at the hearing of the application herein is incomplete and has not been tested by oral examination and that the trial may well reveal that the Plaintiff/Applicant was not entitled to an interlocutory injunction.
In the light of the above, the Plaintiff/Applicant succeeds in his application since he has satisfied me in respect of both the tests applied above in which case I haven't and need not consider any balance of convenience. However the grant of an interlocutory injunction is a remedy that is both temporary and discretionary. A decision to grant or refuse will cause to whichever party is unsuccessful on the application some disadvantages, which his ultimate success at the trial may show he ought to have been spared. Counsel for the 2nd Defendant/Respondent did convince me that if an interlocutory injunction is granted, the 2nd Defendant/Respondent would suffer considerable damage if it turns out at the trial that an injunction ought not to have been granted. At this regard, the grant of the injunction will be on terms together with consequential orders geared towards the speedy conclusion of the trial of the action herein. Accordingly IT IS ORDERED AS FOLLOWS:
1. That an injunction restraining the 2nd Defendant/Respondent, whether by himself, his servant, agents, privies or howsoever called from continuing the construction of a dwelling house or doing any unlawful act or further interfering with the piece or parcel of land situate lying and being at No. 45 Signal Hill Road, Wilberforce, Freetown in the Western Area of Sierra Leone is hereby granted pending the hearing and determination of the action herein on terms that the Plaintiff/Applicant gives an undertaking to pay damages to the said 2nd Defendant/Respondent for any loss sustained by reason of the injunction if it should turn out at the trial that the 2nd Defendant/Respondent ought not to have been restrained aforesaid.
2. That the action herein be entered for trial and directions as to the trial of the said action be sought within fourteen (14) days from the date of this order.
3. That the costs of this application be costs in the cause. HON MR. JUSTICE A.B. HALLOW AY
BY THE COURT CERTIFIED TRUE COPY
MASTER AND REGISTRAR MASTER AND REGISTRAR