HP Kasabia Brothers Ltd v Mohammed [1994] FJHC 62; Hbc0417d.93s (15 June 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 417 OF 1993

BETWEEN:

H.P. KASABIA BROTHERS LIMITED
a limited liability Company having its registered
office at Suva
Plaintiff

AND

FAKIR MOHAMMED
f/n Daud Mohammed,
MOHAMMED YAKUB, ANUB MOHAMMED
and IBRAHIM MOHAMMED all of Suva
Defendants

G.P. Shankar: For the Plaintiff
H.M. Patel: For the Defendants

Dates of Hearing: 21st, 25th January, 16th February 1994
Date of Interlocutory Judgment: 15th June 1994

INTERLOCUTORY JUDGMENT

The Plaintiff is the registered proprietor of Lot 3 on D.P. No. 4511 being the land described in Certificate of Title No. 17125.

The Defendants are the registered proprietors of Lots 4, 5 and 6 on D.P. No. 4511, being the land described in Certificate of Title No. 17122.

The Plaintiff alleges that it acquired its land described in Certificate of Title No. 17125 for valuable consideration from one Hazra Bibi and Karim Buksh as Trustees of the estate of Madar Buksh although no date has so far been stated by the Plaintiff for its acquisition.

On the 27th of July 1993 the Plaintiff issued a Writ against the Defendants claiming that their predecessors in title had lodged Caveat No. 313086 on 3rd of January 1992 against Certificate of Title No. 17122 claiming an easement of access or right of way in favour of the property comprised in Certificate of Title No. 17125. The Defendants deny this allegation.

The Plaintiff next alleges that it is apparent from D.P. No. 4511 that the land comprised in Certificate of Title No. 17122 is a servient tenement and that Lots 1, 2 and 3 are dominant tenements and entitled to access or right of way over the land described in Certificate of Title No. 17122.

The Defendants deny any knowledge of this claim. They also deny any knowledge of the Plaintiff's claim that easements have already been registered and granted in favour of Lots 1 and 2.

The Defendants admit that, subject to certain conditions, on the 13th of August 1992 they gave written permission to the Plaintiff to have vehicular access over Lots 4, 5 and 6.

The Plaintiff alleges that sometime ago the Defendants signed an easement document in respect of Lots 4, 5 and 6 in Certificate of Title No. 17122 for the use and benefit of Lot 3 but it was later discovered that the document that they signed was not signed by any attesting witness. The Defendants deny this allegation; alternatively they say that even if the Plaintiff's allegation is true they signed any such document without independent legal advice and under undue influence or duress exerted by the previous owners of the land described in Certificate of Title No. 17125 or their solicitors. No particulars of such undue influence or duress have so far been provided by the Defendants.

After the Plaintiff delivered its reply to the Defence on the 10th of December 1993 it issued a Motion which is presently before me seeking an interim injunction restraining the Defendants from selling, transferring, leasing or mortgaging their land in Certificate of Title No. 17122 in favour of any third party without first obtaining an undertaking from such third party to be bound by the easement or right of way claimed by the Plaintiff or from preventing or obstructing the Plaintiff from using the right of way.

In support of the Motion Mr. Purshottam Kalidas Kasabia the Managing Director of the Plaintiff has sworn an affidavit to which he annexes what he claims to be a copy of an unregistered easement of right of way signed by the Defendants but undated which states, so far as relevant, that in consideration of the sum of 10c (ten cents) paid to the Defendants by Hazra Bibi and Karim Buksh the Defendants granted to Hazra Bibi and Karim Buksh and their successors in title full, free and uninterrupted right of passage both pedestrian and vehicular and with or without horses and domestic animals of any kind over the land known as Lot 3 on D.P. 4511 in Certificate of Title No. 17122. There is also annexed a photocopy letter dated 13th August 1992 written by the Defendants to the Plaintiff and which is admitted by the Defendants which, omitting formal parts, reads as follows:

"RE: 78 SUVA STREET PROPERTY

At our pleasure we allow H.P. Kasabia Bros. Ltd. to use our driveway as vehicular access only provided there is no obstruction by their vehicles or cause any nuisance to us at anytime.

Yours faithfully

Per: (Sgd.) Fakir Mohammed, Mohammed Yakub, Anub Mohammed."

Mr. Purshottam Kasabia also states that the Plaintiff's predecessors as well as the Plaintiff lodged a Caveat to forbid dealings with Certificate of Title No. 17122 to give notice of an easement in its favour and to protect its unregistered easement. He states that an application was made on behalf of the Defendants to remove the Caveat in respect of the unregistered easement and that because the notice of removal of the Caveat reached his solicitors rather late application could not be made for an extension of it.

The Plaintiff then gives an undertaking as to damages.

The Defendants swore an Affidavit in Reply. They say that they signed the annexure (without specifying which one) because the solicitors for Hazra Bibi and Karim Buksh insisted that they had to grant an easement to their adjacent neighbours and that they did not receive any independent advice. Later when they consulted their solicitors they realised that "no one could apply any kind of pressure or duress to make us sign such a document"; they did so only after the Plaintiff's then solicitor Mr. G.P. Lala agreed with their solicitor that the Plaintiff could use the driveway for vehicular access only.

They claim that the Plaintiff never had any Caveatable interest in respect of their land and that therefore the Caveat was wrongly accepted by the Registrar of Titles.

Finally they claim that the Court should refuse to grant an injunction for various and mainly legal reasons among them the following:

(a) It would be unconstitutional.

(b) Under the Land Transfer Act they have an "indefensible" (sic) title to the land.

(c) On the balance of convenience it would be more prejudicial to them.

(d) The Plaintiff is a business tycoon and is merely using economical pressure on them.

(e) Damages is an adequate remedy and that the Plaintiff has not shown it would suffer irreparable damage.

Once again we have a case of litigants making propositions of law in an affidavit before this Court which judges over the years have all too frequently had to condemn. It is a pity that the judges' criticisms of the practice have apparently gone unnoticed by the Defendants. I shall shortly refer to the submissions of counsel on the matter in issue here but can comment immediately on grounds (a), (b) and (d).

Ground (a) is obviously taken from paragraph 8 of the Defence which states that the Defendants would rely in part on Sections 4, 9 and 10 of the Constitution of the Sovereign Democratic Republic of Fiji.

Under Section 4 certain fundamental rights and freedoms of the individual are protected including protection for the privacy of his home and other property and from deprivation of property without compensation.

Section 9 gives protection from deprivation of property except under the authority of a law.

Section 10 guarantees protection for the privacy of a person's home and other property.

Whether or not the Plaintiff's action is in breach of these sections is clearly a matter for argument at the trial and I observe that counsel for the Defendants does not make any submission on this at this stage.

As to (b) this will be a matter for evidence at the trial on the assumption that the Defendants are claiming indefeasible title to the easement in question.

As to (d) I have little doubt that this is meant to refer to the remark of Sir Robert Megarry in Vernon & Co. (Pulp Products) Ltd. v. Universal Pulp Containers Ltd. (1980) F.S.R. 179 that:

"It would be intolerable if the Cyanamid case was allowed to become a charter of success for all the rich companies who seek interlocutory injunctions against poor companies in cases in which damages would be an adequate remedy, enabling them to obtain an injunction merely by showing that there is a serious question to be tried."

The various authorities on granting of interlocutory injunctions are now well known and most of them appear to be quoted by counsel in their submissions to me. The usual purpose of the interlocutory injunction is to preserve the status quo until the rights of the parties have been determined in the action. On such an application the Court is not called upon to make any final decision on any question of fact. The Court must first and foremost determine whether there is a serious issue to be tried at the final hearing.

Secondly the Plaintiff must establish that he has a good arguable claim to the right he seeks to protect.

Thirdly if the Plaintiff satisfies these tests the grant or refusal of an injunction is a matter for the exercise of the Court's discretion on the balance of convenience - see American Cyanamid Co. v. Ethicon Ltd. [1975] UKHL 1; (1975) A.C. 396.

In Cayne v. Global Natural Resources Plc (1984) 1 ALL E.R. 225 at 237H May L.J. said that although the term "balance of convenience" is always used in this type of application probably the less elegant phrase "the balance of the risk of doing an injustice" better describes the process involved. This may well be true but lawyers have for long understood the shorter expression of "balance of convenience" and realise that they are in truth referring only to where the real equity of a given case appears to lie.

It appears that the Plaintiff bought Lot 3 on Certificate of Title No. 17125 from the estate of Madar Buksh in 1992 15 years after the Defendants bought their property in Certificate of Title No. 17122 from the trustees of the estate of Madar Buksh. It also appears clear that the Plaintiff bases its claim on implication and eventually will invite the Court to infer that from all the surrounding circumstances an intention to grant an easement to it should properly be inferred.

I am satisfied that there is a serious question to be tried here but I note that the Plaintiff does not offer any evidence that the Defendants have shown any intention to sell, transfer, lease or mortgage their property to anyone. I therefore believe there is merit in the Defendants' claim that the Plaintiff brings this application on mere speculation. I am of the opinion that prima facie the Plaintiff has an arguable claim to the right he seeks to protect but because I am not satisfied that there is any real urgency in this matter at this stage, in the exercise of my discretion I decline to grant the injunction sought.

In addition I can not see how as a matter of law the Plaintiff is entitled to any undertaking from some as yet un-named and unknown third party to be bound by the easement which the Plaintiff claims. I therefore refuse to grant the injunction claimed but as a condition of this order I require the Defendants to undertake to inform any prospective purchaser of their land of the Plaintiff's claim in this action and that the action has so far not been determined. The Defendants must also notify the Plaintiff of any prospective purchaser's interest in the property to enable the Plaintiff to protect the rights it claims.

The order of the Court is that the application for interim injunction is refused. Costs will be in the cause.

JOHN E. BYRNE
JUDGE

Cases referred to in Judgment:

(1) American Cyanamid Co. v. Ethicon Ltd. [1975] UKHL 1; (1975) A.C. 396.
(2) Cayne v. Global Natural Resources Plc. (1984) 1 All E.R. 225.
(3) Vernon & Co. (Pulp Products) Ltd. v. Universal Pulp Containers Ltd. (1980) F.S.R. 179.

Cases on text books also cited in Submissions:

(1) Abigail v. Latin (1934) A.C. 491.
(2) Ba Town Council v. T.F.J. Bulldozing Co. Ltd., F.C.A. Civil Appeal No. 55/86.
(3) Ba Town Council v. Becharbhai Holdings Limited, F.C.A. No. 112/85.
(4) Balstrode v. Lambert (1953) 1 W.L.R. 1064.
(5) Michael Borys v. Canadian Pacific Railway (1953) A.C. 217.
(6) Evans Marshall & Co. Ltd. v. Bertola (1973) W.L.R. 349.
(7) Gale on Easements Fourteenth Edition, 82, 83.
(8) Geoffrey W. Hill & Associates v. King (1992) 66 ALJ605-606.
(9) Jones v. Llanwrst UDC (1911)/G.L. 393.
(10) Hubbard v. Vosper (1972) 2 Q.B. 84.
(11) NWL Ltd. v. Woods (1979) 1 W.L.R. 1294.
(12) Northern Drivers Union v. Kawari Island Ferries Ltd. (1974) 2 NZLR 617.
(13) Queensland v. Australian Telecommunications Commission (1985) 59 ALR 243.
(14) Tablelands Peanuts Ltd. v. The Peanut Marketing Board 58 A.L.J.R. 283.
(15) Ushers Brewery Ltd. v. P.S. King & Co. Ltd. (1972) 1 Ch. 148.

HBC0417D.93S