Mohammed v HP Kasabia Brothers Ltd [1995] FJHC 109; Hbc0112d.94s (29 June 1995)

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

ACTION NO. HBC 0112 OF 1994

BETWEEN:

FAKIR MOHAMMED f/n Daud Mohammed,
MOHAMMED YAKUB, AYUB MOHAMMED AND
IBRAHIM MOHAMMED all sons of
Fakir Mohammed all of Suva Street,
Suva, Fiji Businessmen
Plaintiffs

AND

H.P. KASABIA BROTHERS LIMITED
a limited liability company having
its registered office at Suva
Defendant

H.M. Patel for the Plaintiffs
G.P. Shankar for the Defendant

Dates of Hearing: 13th April 1994 and 16th June 1995
Date of Interlocutory Judgement: 29th June 1995

INTERLOCUTORY JUDGMENT

This action is inter-related to Action No. 417 of 1993.

Because of a mistake in the Court Registry, after the proceedings in Action No. 417 of 1993 were commenced, on 4th March 1994 a Motion was issued in the present proceedings by the present Plaintiffs seeking an order that a Caveat forbidding any dealing lodged on behalf of the Defendant at the office of the Registrar of Titles on 9th February 1994 be removed. This Motion was listed before Fatiaki J. who declined to hear it because an application had already been made to me in Action No. 417 of 1993 for an interim injunction in favour of the Defendant in this action against the present Plaintiffs.

On 15th June 1994 I delivered an interlocutory judgment refusing the application for an interim injunction. This left outstanding a judgment in Action No. HBC0112 of 1994 in which written submissions were received on behalf of the parties. I have now considered these submissions and am of the opinion that the Caveat in this action should not be removed until at least the determination of Action No. 417 of 1993. In that action on page 8 of my judgment, although I refused to grant the interim injunction to the present Defendant, I said that I considered prima facie the Defendant has an arguable claim to the right it seeks to protect.

In that situation it seems to me the best course is to set Action No. 417 of 1993 down for trial. In my judgment it is best to leave the status quo intact by not ordering the removal of the Caveat as sought by the Plaintiffs in Action No. HBC0112 of 1994. It appears from the file that all preliminary matters have been completed and I therefore fix the hearing of Action No. 417 of 1993 for the 5th and 6th of December 1995 at 9.30 a.m. in Court. The Court Registry has now to issue the necessary notices to the parties.

JOHN E. BYRNE
JUDGE

HBC0112D.94S