Prasad v Singh [1994] FJHC 142; Hbc0033d.92b (12 October 1994)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 33 OF 1992

Between:

AMRIT PRASAD
s/o Shiu Prasad
Plaintiff

- and -

SOHAN SINGH
s/o Jora Singh
Defendant

Mr. V. P. Ram for the Plaintiff
Mr. A. Sen for the Defendant

RULING

This is an application by the defendant to dissolve the interim injunction granted ex parte to the Plaintiff on 18 November 1992 restraining the Defendant and his agents servants and workmen and each of them from receiving and/or uplifting any sugar cane proceeds from the Plaintiff's farm No. 2628 Wainikoro Sector from the Fiji Sugar Corporation Limited. On 8 February 1993 by consent the matter was adjourned to a date to be fixed by the Deputy Registrar but in the meantime the Plaintiff was ordered to file a Reply to defendant's Affidavit.

As ordered, counsel filed written submissions in support of their applications for injunction and dissolution respectively.

The Summons to dissolve the injunction was filed on 4 January 1994. In support of the Summons the defendant is relying on his Affidavit sworn 18 November 1992 and filed herein. The Plaintiff refers to his Affidavit sworn 29 October 1992 which was filed in support of his application for the injunction ex parte and to his Affidavits sworn 8 April 1993 and 19 January 1994 and filed herein.

In this case the Plaintiff (hereafter referred to as "P") has through his counsel, as stated in his submission argued that he:

"issued a writ of summons and at the same time applied for an order of interim injunction to prevent the Defendant from uplifting any more proceeds from the Sugar Corporation. The interim order was made on the strength of Plaintiff's affidavit which deposed two basic matters (a) that the Crop Lien which gave basis to the payment of cane proceeds was illegal in that the document does not disclose a true state of affairs. (b) that the Crop Lien is a nullity and (c) that even if (a) and (b) are not looked at the whole of the moneys as ALLEGED to be secured by the Crop Lien has been repaid in full and D must therefore discharge the document without further ado. D has supplied a statement of accounts which shows that the whole of the moneys secured by the Crop Lien has been paid in full, yet he does not desire to discharge the security. In his reply D admits paragraph 2 of Plaintiff's affidavit, thus effectively admitting ground (a) of Plaintiff's complaint. The statement of accounts shows a "paid up" situation if not an over payment coupled with a refusal to discharge the document. On the facts themselves P has substantiated two of his grounds for complaint. Ground (b) of his complaint is disputed. Against this background D seeks to set aside the interim order and says:

(a)That the balance of Convenience falls on D's side;

(b)That there has not been full disclosure;

(c)That there is no cause of action."

The defendant bases his argument on the above three grounds (a), (b) and (c).

I have considered the affidavit filed in support of the Plaintiff's motion, affidavits in opposition and the written submissions by counsel.

I find that there are no merits in the defendant's arguments. The fact that the plaintiff did not make reference to the alleged promissory notes does not amount to non-disclosure of material fact so as to affect the issue before me particularly when one bears in mind the Plaintiff's assertion that the alleged advances under the promissory notes do not have anything to do with Crop Lien the subject-matter of this action.

The Plaintiff states that the defendant has uplifted the sum of $12,233.00 under the Crop Lien in question which is in excess of the amount secured under the Crop Lien, namely for the sum of $8300.00. He says that the whole of the 'alleged debt' secured by Crop Lien was paid on 10 December 1990 according to accounts supplied by the defendant. The Plaintiff says that the defendant refuses to discharge the crop lien. He says that the alleged claim under the promissory notes have no connection with the Crop Lien, and that claim under the promissory notes is the subject matter of a separate action instituted by the defendant against the Plaintiff in the Labasa Magistrate's Court being Action No. 435/92.

The defendant denies uplifting the said sum of $12,233 but admits receiving $1853 under the crop lien and "a further sum of $8847". He says that the Plaintiff borrowed further sums of $11,650 on 23.6.90, $500 on 9.8.90 and $1200 on 6.11.90 and these sums were secured by the said Crop Lien.

In addition to the defendant's application for dissolution of interim injunction I am also required to consider whether the interim injunction granted ex parte ought to continue in the circumstances of this case.

In this action the Plaintiff alleges that the defendant has been over paid under the Crop Lien. The Crop Lien does provide for payment of $8300 as cash already advanced and for 'further advance'. It is not clear whether the alleged promissory notes are meant to be secured under the Crop Lien as further advances for there is no reference to them in any documents relating to these advances. But looking at the Plaintiff's claim it appears that the defendant has been paid the full amount under the Crop Lien. But this is denied by the defendant. There are therefore conflicting affidavit evidence.

As to the principles governing the grant of interlocutory injunctions, they are authoritatively laid down by the House of Lords in AMERICAN CYANAMID CO v ETHICON LTD [1975] UKHL 1; (1975 AC 396). "The rule is that the Court must be satisfied that the plaintiff's case is not frivolous or vexatious and that there is a serious question to be tried. Once that is established, the governing consideration is the balance of convenience" (HANBURY AND MAUDSLEY MODERN EQUITY 11th Ed. p.102).

At this interlocutory stage, the Courts do not embark on anything resembling a trial of the action and it is not the Court's function to resolve conflicts of evidence on affidavit nor to resolve difficult questions of law. All these are matters for the trial (PORTER v NATIONAL UNION OF JOURNALISTS, the Times, July 30, 1980 H.L.). I find that there is a serious question to be tried in this case and that the Plaintiff's claim is not frivolous or vexatious.

On the other principles in considering the grant of interlocutory injunction, namely whether damages are an adequate remedy and the related matter as to where does the balance of convenience lie, I find that in this case the affidavits raise conflicting evidence and questions of law relating to moneylending transactions, the balance of convenience favours the maintaining of status quo until trial. If the interlocutory injunction is granted the defendant does not stand to loose anything if he is successful, as the cane proceeds are intact and he will be able to exercise his rights under the Crop Lien, therefore I find that the defendant will be adequately compensated.

In the outcome, for the reasons given hereabove, I consider that the balance of convenience favours the continuation of the injunction and therefore the interim injunction ought to continue until the trial of this action and I do so order; and therefore the defendant's application for dissolution of interim injunction is dismissed with costs in the cause.

D. Pathik
Judge

Suva
12 October, 1994

HBC0033D.92B