Ariyan v Duleux [1992] FJHC 21; Hbc0183d.91s (20 May 1992)

IN THE HIGH COURT OF FIJI
(At Suva)
Civil Jurisdiction

CIVIL ACTION NO. 183 OF 1991

Between:
NAREND KUMAR ARIYAN (f/n Ariyan)
AND ANOTHER
Plaintiffs

- and -

JEAN PIERRE DULEUX AND ANOTHER
Defendants

Mr H M Patel for the Plaintiffs
Mr J Howard for the Defendants

RULING

This in an application under Orders 29 and 45 rule 10 of the High Court Rules 1988 in which the defendants seek the following order (s):

"....that execution and all further proceedings to enforce the order dated the 3rd day of May, 1991 continuing the interim injunction be stayed and/or suspended pending the determination of the Appeal and FOR AN ORDER that the plaintiffs ... forthwith vacate the defendants property .....OR in the alternative FOR AN ORDER that the plaintiffs ..... be restrained from conducting or carrying out business on the defendants properties ...... OR FOR AN ORDER that all the monies earned by the plaintiffs .... be paid into court daily or deposited daily into a court controlled bank account."

I say at once that whilst the court's discretion under both Orders is in terms unfettered and although Order 29 rule 8 appears to contemplate the final alternative order sought by the applicants, the difficulties in quantifying and policing such an order militates against its grant in the circumstances of this case. Neither am I minded to treat this application as if it were one under Section 169 of the Land Transfer Act (Cap 131) for summary possession of land.

Having said that however in order to properly understand this present application it is necessary to briefly recount the history of the proceedings to date.

The proceedings were instituted on the 20th of March 1991 by a Writ of Summons with a Statement of Claim attached. On the same day the plaintiffs sought ex-parte an interim injunction restraining the defendants from interfering or evicting them from a block of land which they occupied and used as a public carpark, situated in the heart of the CBD in Suva. The injunction granted on the same day by Jayaratne. J until the 5th of April 1991 was sealed in the following relevant terms:

"that interim injunction be made against the defendants restraining interfering or evicting the plaintiffs from all that piece of property known as CT Nos: 1401 and 14112 situated at Scott Street, Suva and at present used by the plaintiffs carpark under a tenancy agreement dated the 31st August, 1990 in anyway so as to endanger or cause or suffer loss of any kind to the plaintiffs...."

On the 5th of April the plaintiffs filed a further affidavit seeking to correct the legal descriptions of the property in question. On the same day the defendants who had acknowledged service on the 26th of March 1991 also filed a Statement of Defence and Counter-claim together with an inter-partes summons seeking the dissolution of the injunction and an affidavit in support thereof.

Not surprisingly neither of the applications were heard on the 15th of April and they were adjourned to the 8th on which day it was further adjourned to the 10th to allow the plaintiffs time to file an affidavit in reply to the defendants application for dissolution of the interim injunction.

On the 10th of April the applications were argued before Jayaratne. J and on the 30th of April the courts decision was handed down dismissing the defendants application to set aside the injunction. In doing so however his lordship very properly observed inter alia:

"The equitable remedy of an interim injunction is at the discretion of the court. There are no hard and fast rules or a definite formula to be followed when to grant and when not to grant an interim injunction ....... Intrinsically and extrinsically charges do take place in the circumstances which again demand either a variation or dissolution of the inter-locutory injunction. Such a variation or dissolution of the inter-locutory injunction in this case is not yet called for. I am of the view that ends of Justice can be better met if is allowed to continue till the determination of the case: I cannot but strongly feel that the property should be maintained in status quo pending trial."

Thereafter on the 7th of May the plaintiffs filed a Reply to Defence and a Defence to Counter-claim together with the Summons for Directions. A consent order was made on the summons on the 29th of May and the plaintiffs filed an affidavit verifying their list of documents on the 19th of June.

From the foregoing it is clear the plaintiffs were proceeding to trial with all due haste. The same cannot be said however for the defendants who issued a Summons seeking leave to appeal out of time on the 2nd of July together with a Notice of Appeal setting out 6 grounds of appeal against Jayaratne. J's ruling of the 30th of April dismissing the defendants' application to dissolve the injunction.

On 13th August Byrne. J granted the defendant's application to appeal out of time and the appeal remains pending before the Fiji Court of Appeal.

In the meantime perhaps mindful of the delays in the Court of Appeal the defendants also filed an affidavit verifying their list of documents and a notice requesting a pre-trial conference. This conference has not been held and the trial of the action has effectively stalled since August 1991.

6 months later in late February 1992 the defendants changed their solicitors and a month later this present application was filed. So much then for the history of the action.

It cannot nor is it seriously disputed that this court has power both inherently and by the High Court Rules, to stay execution of, or vary, or dissolve any injunction granted by it. More particularly Order 45 rule 10 requires the court in the exercise of its powers thereunder to consider "..... matters which have occurred since the date of order."

In this latter regard learned counsel for the defendants submits that since the order of Jayaratne. J the plaintiffs have failed to make any payments of rent in terms of the Lease Agreement pursuant to which they claimed the right to occupy and use the defendant's land and which did not become 'due and payable' (under Clause 1 of the Agreement) until the 31st day of August 1991. (i.e. 4 months after Jayaratne. J's decision extending the injunction).

Learned counsel further submitted that the injunction order of the court specifically referred to the plaintiffs' Lease Agreement which was the basis upon which Jayaratne. J granted the injunction and his lordship wasn't to know at the time he extended the injunction on the 30th of April 1991 that the plaintiffs would subsequently breach its terms.

Furthermore learned counsel for the defendants argues that the plaintiffs are now estopped from denying the validity of their own Lease Agreement irrespective of the view which the defendants may hold of it.

Learned counsel for the plaintiffs on the other hand whilst admitting that the plaintiffs have not paid any rental to the defendants nevertheless submits that the 'legal status' of the Lease Agreement is one of the principal issues being contested by the defendants in the substantive action and as such they cannot be heard in the same breadth to be denying its validity and at the same time complaining at its breach.

In my view this is neither the appropriate time nor the occasion for the court to determine that issue on the basis of the opposing affidavits filed by the parties. Nor is this court able to consider the question (now under appeal) whether or not the injunction should have been granted in the first place by Jayaratne. J.

The fact is the injunction was granted and extended "...... until the determination of the case." In the circumstances as framed it is at least arguable that this court no longer has the power to dissolve the injunction. However as no argument was addressed to the court on that matter and in view of the order I propose to make that issue must be left to be decided on some other occasion.

I am satisfied that the matter raised by learned counsel for the defendants is one which has occurred since the date of the order of Jayaratne. J extending the injunction within the terms of Order 45 rule 10 and therefore this court is at liberty ".... to grant such relief, and on such terms, as it thinks just."

In the exercise therefore of the court's discretion in the matter and mindful that the plaintiffs have occupied and conducted a carpark business upon the defendants land since August 1990 without paying anything to the defendants the most 'just' order that this court is able to make in the circumstances, and without prejudice to the final determination of the action, is to make a slight variation by the imposition of terms upon the injunction.

The injunction granted to the plaintiffs by Jayaratne. J is varied so as to include the following "pre-condition", namely:

"Subject to the plaintiffs paying into court within 28 days the sum of $21,000 for payment out to the defendants and upon the plaintiffs continuing thereafter to pay $1,000 into Court at the end of each month for so long as they shall continue to occupy and use the defendants land more fully described below...." (the defendants are hereby restrained from interfering or evicting the plaintiffs ... etc.... etc)

Needless to say in the event of the plaintiffs failing to comply with the above conditions the injunction granted to them and extended by Jayaratne. J shall cease to have effect.

(D V Fatiaki)
JUDGE

At Suva,
20th May, 1992

HBC0183D.91S