Jurisdiction: Sierra Leone (common law jurisdiction)
Court: High Court of Sierra Leone, Land, Property and Environmental Division (Holden at Freetown)
Presiding Judge: Hon. Mr Justice A. Fisher J
Date of Order: 6 February 2025
Case Number: CC 366/2021
Neutral Citation: [2025] SLHCGD 2
Legal Area(s): Civil Procedure (interim and interlocutory injunctions, preservation orders); Land and Property (preservation of disputed property); Contempt related procedure (undertakings); Affidavit practice (scandalous or oppressive matter)
Tags: interim injunction; ex parte application; preservation of property; res; balance of convenience; serious issue to be tried; undertakings; full and frank disclosure; striking out affidavit paragraphs; Order 35 HCR 2007; Order 31 HCR 2007
Legal Areas
Civil procedure, interim injunction, ex parte notice of motion, preservation of property, disputed land, serious issue to be tried, balance of convenience, adequacy of damages, urgency, undertakings in lieu of injunction, duty of full and frank disclosure, affidavit must contain facts not opinions, striking out scandalous or oppressive affidavit material.
Style of Cause
Between:
Daphne Florence Solomon … Plaintiff
And
Musa Cline-Thomas … 1st Defendant and Respondent
Teddy Cline-Thomas … 2nd Defendant and Respondent
Counsel appearing: Mr T. Kellie (for the defendants and respondents).
Hearing date: 30 January 2025.
Procedural Posture
In pending ownership proceedings concerning a property at 21 Wilkinson Road, Freetown, the defendants brought an ex parte notice of motion dated 27 January 2025 seeking interim relief to prevent the plaintiff from disposing of the res pending the determination of the motion and the action.
The motion was supported by an affidavit sworn by Tamba Kellie (27 January 2025) with exhibits attached.
Reliefs Sought
The defendants sought:
An interim injunction restraining the plaintiff from disposing of the res (21 Wilkinson Road) pending hearing and determination of the application.
An interlocutory injunction in like terms.
Further or other order and costs.
Facts of the Case
The underlying action was commenced by writ dated 21 July 2021 to determine ownership of 21 Wilkinson Road.
The affidavit in support outlined, in summary:
The matter was initially assigned to Hon. Justice A. K. Musa J, who granted an injunction on the plaintiff’s application against a defendant then in occupation and carrying on business at the property.
The matter was subsequently transferred, and the court ordered the defendant to vacate the property and to hand over the keys to the plaintiff and her solicitors. The defendant complied.
It was alleged that with the keys now in the plaintiff’s side’s possession, the plaintiff (and persons acting for her) appeared to interpret the earlier injunction and court process as freedom to sell the property, thereby risking the proceedings being rendered otiose.
It was alleged that an attempt to sell was made by Ms Pamela Richards, including bringing prospective purchasers to the property, and that a security guard, Matilda K. Kamara, swore an affidavit describing what she saw and heard during such visits.
It was also stated that, on an earlier application to restrain disposal, the court refused the injunction and instead extracted an oral undertaking from the plaintiff’s solicitors that no sale would happen pending trial. Notwithstanding that undertaking, it was alleged that further attempts to sell continued.
Issues for Determination
Whether the court should grant interim, ex parte relief to preserve the disputed property pending inter partes hearing.
Whether the application disclosed a serious issue to be tried and where the balance of convenience lay.
Whether the threshold for an ex parte injunction was met, including urgency and the need for strong reasons.
The legal effect and enforceability of undertakings offered in lieu of injunctions.
Whether parts of the supporting affidavit were improper, and whether the court should strike them out.
Arguments of the Parties
Defendants and Applicants
The defendants contended that the res was at real risk of disposal, which would prejudice their rights and undermine the ongoing proceedings.
They argued that preservation was necessary to prevent the cause of justice being defeated and to avoid the action becoming otiose.
They relied on prior attempts to market the property and alleged continuing conduct despite an undertaking.
Plaintiff and Respondent
The order arose from an ex parte application. The court expressly noted that it would grant relief for a limited period to give an opportunity to hear from the respondents.
Authorities Cited
The court set out the governing law and guiding principles for interim and interlocutory injunctions and for ex parte applications, drawing from:
Sierra Leone High Court Rules 2007, Order 35 (injunctions and preservation orders).
The principles in American Cyanamid v Ethicon.
Sierra Leone authority on limiting merits review in injunction applications (Pa Saidu Conteh and Others v AMR Gold (SL) Limited).
English authorities on urgency, undertakings, and full and frank disclosure.
Affidavit practice requirements under Order 31 of the High Court Rules 2007.
Decision
Held: The court granted an interim preservation order restraining disposal of the property, limited in duration, and made additional consequential orders.
Legal Reasoning
(1) Discretion under Order 35 of the High Court Rules 2007
The court noted that grant of an interim or interlocutory injunction is discretionary. Order 35 rule 1(1) empowers the court to grant an injunction where it appears just or convenient, on such terms as the court considers just.
(2) Serious issue to be tried and balance of convenience
Applying the general principles, the court stated that it must consider whether there is a serious issue to be tried and where the balance of convenience lies. The court also considers whether damages are an adequate remedy.
The court was satisfied, on the affidavit evidence, that there were serious issues to be tried and that preservation of the property was appropriate to protect the integrity of the proceedings.
(3) Ex parte relief, urgency, and full and frank disclosure
The court emphasised that ex parte interim injunctions require extreme urgency and strong grounds, and that applicants proceeding without notice carry a compelling duty of full and frank disclosure of material facts.
(4) Undertakings in lieu of injunctions
The court treated undertakings as serious and enforceable. Where there are reasonable grounds to believe an undertaking may be breached, the court may grant a remedy to protect the integrity of the justice system.
(5) Affidavit language and striking out scandalous or oppressive matter
The judge criticised emotional and intemperate comments included in the supporting affidavit. Referring to Order 31 rule 5 (affidavits must contain facts the deponent can prove, not opinions) and exercising the power under Order 31 rule 6, the court struck out offending paragraphs as scandalous or oppressive.
Key Quotations from the Judgment
On the court’s discretion: Order 35 rule 1(1) provides that the court may grant an injunction where it appears just or convenient, on such terms and conditions as the court considers just.
On ex parte duties: the applicant has a compelling duty to make full and frank disclosure on an ex parte application.
On affidavits: affidavits must contain facts the deponent can prove, and not opinions.
Ratio Decidendi
In an ongoing land and property dispute, where there is credible evidence that the disputed property may be disposed of in a manner that could defeat the proceedings, the High Court may grant a time limited interim preservation order on an ex parte basis under Order 35 of the High Court Rules 2007, provided the application discloses a serious issue to be tried and the balance of convenience favours preservation. The court will also strike out scandalous, oppressive, or opinionated affidavit material under Order 31 where it departs from permissible affidavit content.
Obiter Dicta
Undertakings to the court are extremely serious and should be recorded clearly, with minimal scope for argument on interpretation.
Intemperate language should not find itself into an affidavit sworn for legal proceedings.
Final Orders / Reliefs Granted
The court ordered as follows:
An interim preservation of the property at 21 Wilkinson Road was granted pending hearing and determination of the application.
The property was not to be disposed of by the plaintiff or agents of the plaintiff or any third party, whether by leasing, selling, renting, using as collateral, or otherwise, pending hearing and determination.
The matter was adjourned to 13 February 2025 for further proceedings.
Costs were ordered to be in the cause.
The judge stated that because this was an ex parte application, the order would last for seven days, to provide an opportunity to hear from the respondents.
Commentary / Practice Note
(1) Preservation of the res in land disputes
The order demonstrates the court’s readiness to preserve a disputed property where disposal would risk rendering ongoing proceedings otiose. In property disputes, preservation is often central, because once land is sold or encumbered, the litigation may multiply and enforcement becomes more complex.
(2) Ex parte is exceptional, not routine
The order restates that ex parte injunctions are for genuine urgency. Applicants who delay and then plead urgency will attract limited sympathy. Proper analysis and a reasoned explanation grounded in evidence are required.
(3) Undertakings may be an alternative, but not a shield
Courts may accept undertakings in lieu of an injunction. However, where there are reasonable grounds to fear breach of an undertaking, the court may grant injunctive relief to protect the administration of justice.
(4) Affidavit discipline
The decision is also a practice warning. Affidavits must stick to provable facts. Scandalous, oppressive, or intemperate language may be struck out, and may weaken the application.
Table of Authorities and Legislation Referred To
A. Cases
American Cyanamid Co v Ethicon Ltd [1975] AC 396.
Pa Saidu Conteh and Others v AMR Gold (SL) Limited (SLHC, 2016) [as cited].
Porter v National Union of Journalists [1980] IRLR 404 (HL).
Morning Star Co-operative Society Ltd v Express Newspapers Ltd [1979] FSR 113.
Franses v Somar Al Assad and Others [2007] EWHC 242 (Ch) [as cited] (para 67).
Castelli v Cook (1849) 7 Hare 89, 94.
R v Kensington Income Tax Commissioners, ex parte de Polignac (Princess) [1917] 1 KB 486, 509.
Smith v Backhouse [2023] EWCA Civ 874.
Cuadrilla Bowland Ltd v Persons Unknown [2020] 4 WLR 29.
Mionis v Democratic Press SA [2014] EWHC 4104.
B. Statutes, rules, and procedural materials
High Court Rules 2007:
Order 35 rule 1(1).
Order 35 rule 2(1).
Order 31 rule 5.
Order 31 rule 6.
Sime, A Practical Approach to Civil Procedure (2nd ed, 1995, Blackstone Press) p 181 [as cited].
Tags and Categories
Categories: Civil Procedure, Land and Property
Tags: interim injunction; preservation order; ex parte; serious issue to be tried; balance of convenience; undertakings; full and frank disclosure; affidavit practice; striking out; Order 35; Order 31
Sample Legal Questions
Multiple Choice Questions
Which division and judge issued the order in Daphne Florence Solomon v Musa Cline-Thomas and Another?
A. High Court Commercial Division, Justice Mami
B. High Court Land, Property and Environmental Division, Justice Fisher
C. Court of Appeal, Justice Gelaga King
D. Supreme Court, Justice Browne-Marke
What was the primary relief sought on the ex parte motion?
A. Specific performance of a sale agreement
B. Interim and interlocutory injunction restraining disposal of 21 Wilkinson Road
C. A declaration of title to the property
D. Summary judgment on the writ
Which rule provided the legal basis for granting interlocutory injunctions?
A. Order 2 of the High Court Rules 2007
B. Order 35 rule 1(1) of the High Court Rules 2007
C. Order 59 of the High Court Rules 2007
D. Order 1 of the High Court Rules 2007
Which case is classically associated with the serious issue to be tried and balance of convenience approach?
A. American Cyanamid v Ethicon
B. Walsh v Lonsdale
C. Donoghue v Stevenson
D. Salomon v Salomon
What additional duty is emphasised for ex parte injunction applications?
A. Duty to serve pleadings within 7 days
B. Duty of full and frank disclosure of all material facts
C. Duty to obtain a jury verdict
D. Duty to register the order in the Lands Registry
Under which provision did the court strike out offending paragraphs of the affidavit?
A. Order 31 rule 6 of the High Court Rules 2007
B. Order 35 rule 2(1) of the High Court Rules 2007
C. Order 59 of the High Court Rules 2007
D. Order 2 rule 1 of the High Court Rules 2007
What was the court’s approach to undertakings?
A. Undertakings are informal promises and not enforceable
B. Undertakings are enforceable like injunctions, and breach can have serious consequences
C. Undertakings replace all court orders and remove judicial discretion
D. Undertakings are relevant only in criminal cases
What was ordered regarding costs?
A. Costs awarded to defendants immediately
B. Costs awarded to plaintiff immediately
C. Costs were reserved, to be in the cause
D. No order as to costs
The interim order was time limited because:
A. The court lacked jurisdiction beyond seven days
B. Ex parte orders are granted only to give an opportunity to hear from the respondents
C. The property was outside Freetown
D. The defendants withdrew their motion
The property was restrained from being disposed of, including:
A. Leasing, selling, renting, or using as collateral
B. Painting the building
C. Repairing the roof
D. Paying rates
Multiple Choice Answers
B
B
B
A
B
A
B
C
B
A
Essay Questions
Discuss the test for interim and interlocutory injunctions as applied in this case, focusing on serious issue to be tried, balance of convenience, and adequacy of damages.
Explain why ex parte injunctions are exceptional, and analyse the duty of full and frank disclosure with reference to the authorities cited.
Evaluate the relationship between undertakings and injunctions, and discuss when a court may refuse an undertaking and grant an injunction.
Examine the rules governing affidavit evidence and explain why courts strike out scandalous or oppressive material.
Model Answer Pointers
Identify the statutory basis in Order 35 and explain discretion.
Apply American Cyanamid: serious question, balance of convenience, damages.
For ex parte: urgency and full and frank disclosure, link to Rex v Kensington ex parte de Polignac and Franses.
Undertakings: seriousness and enforceability, link to Smith v Backhouse and the court’s discussion.
Affidavits: facts not opinions (Order 31 rule 5), strike out (Order 31 rule 6), policy reasons (integrity of proceedings).
1. Test for interim and interlocutory injunctions in this case
(a) Statutory footing and the court’s discretion
The application was brought under Order 35 of the High Court Rules 2007. The starting point is that interim and interlocutory injunctions are discretionary remedies granted where it appears “just or convenient” to do so (Order 35 rule 1(1)). The discretion is exercised to protect the administration of justice, principally by preserving the res and preventing the claim from being defeated before trial.
(b) Serious issue to be tried
The court applied the modern approach associated with American Cyanamid Co v Ethicon Ltd. At this stage, the judge does not conduct a mini trial or decide title conclusively. The question is whether the pleadings and evidence reveal a real dispute fit for trial, not whether the applicant is more likely than not to succeed.
In this case there was an existing ownership dispute over 21 Wilkinson Road, Freetown, already before the court on a writ. The application was anchored in allegations that, while that dispute remained unresolved, the property was being marketed or positioned for sale. That combination, a live title issue plus a risk of disposal, readily satisfied the “serious issue to be tried” limb.
(c) Balance of convenience
Once a serious issue is established, the court weighs which course carries the least risk of injustice pending trial.
Here, the balance of convenience strongly favoured preserving the property because:
Risk of the proceedings being rendered otiose: If the property were sold or encumbered, the litigation could become practically pointless, or at least far more complex, involving third parties and further proceedings.
Preservation maintains the status quo: In a title dispute, the status quo is usually achieved by preventing irreversible dealings with the res.
Potential multiplicity and enforcement difficulties: A sale to third parties could trigger issues of notice, bona fide purchase, tracing, and enforcement, increasing the risk of injustice.
Conversely, the prejudice to the plaintiff of preserving the property for a short period was limited, the plaintiff remained free to pursue the case and to enjoy possession subject to not disposing of the res.
(d) Adequacy of damages
A key practical checkpoint within the Cyanamid framework is whether damages would be an adequate remedy.
In land and property disputes, damages are frequently not adequate because:
Land is unique, and the claimant’s interest is not always readily compensable.
A sale can create third party rights and complications that money cannot cleanly unwind.
Even if damages might be theoretically available, they may not be an effective substitute for preserving the property pending trial.
In this case, the alleged threatened sale made damages an imperfect remedy. The court’s concern was not only compensation but the integrity of the proceedings, meaning that preservation was the more just and convenient course.
2. Why ex parte injunctions are exceptional and the duty of full and frank disclosure
(a) Ex parte relief is exceptional
Ex parte injunctions are exceptional because the respondent is not heard before being restrained. They can impose immediate and serious consequences, including reputational harm and practical limitations on dealing with property. Courts therefore treat them as remedies of last resort requiring:
Genuine urgency, meaning notice would defeat the purpose of the application.
Strong grounds, because the court is hearing only one side.
Time limitation, so the respondent can be heard promptly (in this case, the order was limited to a short period and the matter was fixed for an early return date).
This approach aligns with the strict judicial culture reflected in the cited English authorities on interim relief, including decisions emphasising that without notice procedures must be tightly controlled.
(b) Full and frank disclosure
Because the court is being asked to act without hearing the other side, the applicant bears a heavy duty of full and frank disclosure of all material facts, including those adverse to the application.
The classic authority cited for this duty is R v Kensington Income Tax Commissioners, ex parte de Polignac (Princess). The principle is that the court must be able to trust that the applicant has not presented a selective narrative. If the applicant omits material facts, the court may discharge the order, even if the applicant might otherwise have had a good case.
In this case, the court’s emphasis on full and frank disclosure coheres with the context, the application relied on allegations of attempted sale and the history of earlier injunctions and undertakings. Those are precisely the kinds of facts that must be presented fairly, including any prior court orders, prior refusals, the existence and terms of any undertaking, and any relevant correspondence.
Authorities such as Franses v Somar Al Assad were cited to reinforce the disciplined approach courts take to without notice relief, including the need for careful judicial control and the applicant’s candour.
3. Undertakings and injunctions, when a court may refuse an undertaking and grant an injunction
(a) Relationship between undertakings and injunctions
An undertaking is a solemn promise given to the court, usually by counsel on a client’s instructions. In practical effect, an undertaking can operate as an alternative to an injunction because breach of an undertaking may be enforceable through contempt procedures, similarly to breach of an injunction.
Courts often prefer undertakings where they provide adequate protection because:
They can achieve the same protective outcome with a less coercive feel.
They may reduce argument about the exact boundaries of a drafted order.
They may facilitate a proportionate solution, especially where the risk is manageable.
Authorities such as Smith v Backhouse were referenced in the case as part of the modern discussion around interim relief and enforcement consequences.
(b) When a court may refuse an undertaking and grant an injunction
A court may refuse to rely on an undertaking and instead grant an injunction where an undertaking is not likely to provide effective protection. Typical circumstances include:
History suggesting a real risk of breach: If there are reasonable grounds to think the undertaking will not be honoured, the court may not consider it sufficient. In this case, the allegation was that attempts to market or sell continued notwithstanding an undertaking.
Need for clarity and enforceability against wider actors: An undertaking binds the giver, it may not bind agents, associates, or unknown third parties. If there is a risk of dealings through intermediaries, an injunction framed to include “agents, servants, privies” may be necessary.
Risk of irreversibility: Where the threatened act would irreversibly affect the res, courts tend to prefer a formal order.
Public interest in protecting the administration of justice: If the court perceives a deliberate attempt to circumvent its processes, it may issue an injunction to protect the court’s authority.
Therefore, the relationship is not either or. Undertakings can be sufficient where trust and control exist. Injunctions become appropriate where the risk profile is higher or the undertaking is not a reliable substitute.
4. Rules on affidavit evidence, and why scandalous or oppressive material is struck out
(a) Governing rules
The court relied on Order 31 of the High Court Rules 2007:
Order 31 rule 5: affidavits must contain facts that the deponent can prove from personal knowledge or from stated sources of information and belief. They are not meant to be vehicles for argument, speculation, or commentary.
Order 31 rule 6: the court may order scandalous, irrelevant, oppressive, or otherwise improper matter to be struck out.
(b) What counts as scandalous or oppressive material
Material may be scandalous or oppressive where it:
Uses abusive or inflammatory language.
Makes serious allegations without evidential foundation.
Contains opinions, insults, or commentary aimed at prejudicing the court.
Goes beyond what is necessary to determine the application.
The judge in this case criticised emotional and intemperate statements in the supporting affidavit and struck out offending paragraphs. That is a standard application of Order 31, designed to keep affidavit evidence within proper bounds.
(c) Why courts strike out such material
Courts strike out scandalous or oppressive material for several reasons:
Fairness to the opposing party: Without striking out, affidavits can become vehicles for character attacks that the respondent cannot properly answer within interlocutory timeframes.
Reliability and discipline of evidence: Affidavits must present verifiable facts. Opinion and rhetoric undermine the evidential value of affidavit material.
Efficiency and focus: Interlocutory hearings are time sensitive. Improper material distracts from the real questions, namely whether there is a serious issue and what interim protection is just.
Integrity and dignity of proceedings: Courts safeguard the tone and integrity of the judicial process. This is especially important where the court is asked to act quickly and, sometimes, without notice.
The English authorities cited in the case, including Castelli v Cook and more recent public order interim injunction cases such as Cuadrilla Bowland Ltd v Persons Unknown, reflect a consistent judicial insistence that evidence supporting interim relief must be measured, factual, and proportionate. The court’s approach in this case fits that broader tradition.
Concluding synthesis
Across the four themes, the court’s approach was coherent and orthodox. It treated interim relief as discretionary and protective, applied the American Cyanamid framework to preserve the res, insisted that without notice relief is exceptional and demands candour, recognised undertakings as serious but not always sufficient, and enforced affidavit discipline by striking out improper material to protect fairness and the integrity of the process.