TILMAN DUNBAR, Appellant, v. DAVID FARHART, Appellee

APPEAL FROM THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 5, 1975. Decided December 31, 1975. 1. The function of a writ of injunction is to afford preventive relief and not redress for a wrong already committed. 2. Courts cannot grant injunctive relief to merely allay fears. Persons seeking relief must first establish that the threatened acts will in all probability be committed. 3. A person who has fully warranted title to realty to a purchaser and his successors, cannot thereafter obtain injunctive relief against one of such successors, for he who seeks equity must do so with clean hands. Appellee was the purchaser of realty which he acquired from one of the appellant’s successor grantees. In the sale to the grantee purchasing the property from him, appellant had fully warranted the undisturbed ownership of the property, warranting to defend the purchaser, his heirs, successors and assigns against the claim of any person asserting a right to the property. After the purchase of the property, appellee began the construction of a building across a public access road, which would greatly inconvenience other property owners in the area. An injunction was sought by appellant, to restrain appellee from continuing further work. The lower court denied the injunction and an appeal was taken therefrom. The position of the Supreme Court essentially, was that the appellant could not now seek equity when he had warranted title to the property and the undisturbed enjoyment thereof in all its aspects to successors of his grantee, of whom the appellee was one. The judgment was affirmed. Appellant, pro se.M.Fahnbulleh Jones for appellee. 427 428 LIBERIAN LAW REPORTS MR. JUSTICE AZANGO delivered the opinion of the Court. The record certified to us discloses that during the year 1970, appellee commenced the construction of a building on property he had purchased from Lafayette Morgan, which was formally a part of appellant’s plot of land purchased from the Republic of Liberia in 1948, and sold to Gray Johnson, who subsequently sold the same property to Miss Adelaide Morrie. Appellee commenced the digging of his foundation across the road which had been used in the area by appellant and the public for a period of more than zo years, without making available to the public another road. The road also served as an access road leading to the main highway going to Elwa village and Roberts International Airfield. Appellant sought unsuccessfully by peaceful means to persuade appellee to relocate his foundation on his plot of land so as not to interfere with the road’s use. Under the circumstances, appellant instituted injunction proceedings in order to enjoin appellee from closing the road. Pleadings progressed to an amended reply, which was followed by appellee’s motion to dissolve the injunction suit and a resistance thereto. Pending the disposition of the motion, appellant filed an information before the trial court, informing the court that appellee had disobeyed the writ of injunction and should be held in contempt. The case came up for trial before Judge Roderick Lewis, who was assigned to preside over the December 1970 Term of the Civil Law Court. The judge elected not to entertain the information but to pass on the motion to dissolve the injunction and the resistance thereto. The injunction was dissolved, to which exceptions were noted and an appeal announced. Repeatedly, this Court has held that the function generally of a writ of injunction is to afford preventive re- LIBERIAN LAW REPORTS 429 lief and not redress for wrong already committed. Its power is exercised not for the purpose of punishing a person for some wrongful act which he has committed but rather to prevent the doing of such an act to the injury of another. Johnson v. Russell, [1934] LRSC 32; 4 LLR 221 ( 1 934)� Its object and purpose is to preserve and keep things in the same state or condition and to restrain an act, which if done would be contrary to equity and good conscience ; and it is the appropriate relief when the remedy at law is subsequent to the injury and the effects cannot be adequately compensated. It is also settled that an action of injunction is an action in which the plaintiff seeks to compel the defendant to permit matters to remain in the present state, either in pursuance of a contract, or because of a right growing out of the general principles of law. And under the well-known equitable maxim that “he who comes to equity must come with clean hands,” and “he who seeks equity must do equity,” of which we shall speak later, it cannot be gainsaid that before the powers of a court of equity can properly be exercised, there must exist some specifically equitable right to such relief, particularly in the case of an injunction, which has already been characterized as the “strong arm of equity.” It is settled that courts cannot grant injunctions to allay the fears and apprehensions of individuals. They must show the court that the acts against which they ask for protection are not only threatened, but will in all probability be committed, to their injury. Authority supports the position taken. “If irreparable injury is threatened and impending to rights of a complainant, an injunction usually will be granted, as it is not necessary to wait for the actual occurrence of an injury which it is shown may be reasonably expected. “However, an injunction will not lie to restrain one 430 LIBERIAN LAW REPORTS from doing what he is not attempting and does not intend to do, and, a fortiori, an injunction will not issue where it is shown that defendants are without power to accomplish that which it is alleged they are attempting to do. “Injunction will not issue in the absence of an actual or presently threatened interference ; it is not sufficient ground for an injunction that the injurious act may possibly be committed or that injury may possibly result from the acts sought to be prevented ; but there must be at least a reasonable probability that the injury will be done if no injunction is granted ; and not a mere fear or apprehension, since injunctions will not be granted merely to allay the fears and apprehensions of individuals which, it has been said, may exist without substantial reasons and be absolutely groundless. In these circumstances the mere fact that an injunction would not injure defendant will not authorize its issuance, and especially is the principle applicable where the injury is not certain to occur if defendant is not enjoined, and, on the other hand, an injury would certainly occur if the injunction were granted. Also a defendant will not be enjoined from doing an act merely because others are likely to follow his example and thereby cause injury.” 43 C. J.S.,Injunctions,� 21 ( 1945). Earlier in this opinion we alluded to the principle which states that “he who comes into equity, must come with clean hands”; and “he who seeks equity must do equity.” In the instant case before us, the appellant declared in the deed for the property he had sold that for and in consideration of a sum of money paid to him by his grantee, the receipt whereof he acknowledged, he did give, bargain, grant, sell and confirm unto his grantees the property described and that he would forever warrant and defend them, their heirs, executors, adminis- LIBERIAN LAW REPORTS 431 trators and assigns, against any person or persons claiming any part of the granted premises. Appellant now seeks to restrain appellee from improving the property which was acquired by him through lawful purchase. Under what principle of equity this can be done we fail to see. The warranty referred to the right of the grantee and his successsors who include the appellee, to acquire and possess the absolute and unqualified title to the property described with all the rights incidental thereto. That it related not only to those tangible things of which one may be the owner ; it included the right to acquire, possess and enjoy all aspects of the property consistent with the equal rights of others and the just exactions and demands of the State. The right to undisturbed ownership of property legally acquired is of great importance, for the theory upon which the institution and social structures of the Republic of Liberia rests is the enjoyment of life, liberty, and property. One of the greatest contributions to civilization has been the protection by law of private individuals in the enjoyment of his property against demands and aggressions of the public. It was because of this right that appellee sought to close down a road that was running through his property. In view of the foregoing, we are of the opinion that the injunction sought by appellant was properly denied by the lower court. The decree of the lower court is hereby affirmed, with costs against appellant. It is so ordered. zlffirmed.