Aseed v Ali [2002] FJHC 255; HBC0441d.2001s (11 September 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0441 OF 2001

Between:

MOHAMMED ASEED
f/n Mohamed Rafiq
Plaintiff

and

RAMZAN ALI
f/n Manzoor Ali
and
MANZOOR ALI
f/n Mohammed
Defendants

Ms. A. Fong for the Plaintiff
Mr. R. Naidu for the Defendants

DECISION

Upon an application made by motion ex parte dated 1 November 2001, an order for interim injunction was made against the defendants restraining them, inter alia, from molesting the plaintiff and from interfering with the plaintiff=s quite enjoyment of his dwelling home situated at Lot 15 Urau Place, Nadawa, Nasinu comprised in Housing Authority sub-lease No. 33482) known as Nadawa (part of) being Lot 15 on Deposited Plan No. 6926.

After the returnable day for the motion, on 2 July 2002 the defendants applied for the dissolution of the interim injunction. An Affidavit in Reply was filed by them.

As ordered, both counsel filed comprehensive written submissions to which I have given due consideration.

Facts

The facts are very simple. The parties are related. In an accident the plaintiff suffered injuries as a result whereof his leg was amputated above the knee. He became unemployed but was compensated. In February 1999 the first defendant called the plaintiff to come to live with him on the said property as long as he liked. There was no discussion about payment of rent.

Later the plaintiff built a two bedroom wood and iron dwelling on the said property. There was no objection from the defendants when he did that instead he was encouraged to do that by the defendants.

Trouble arose between the parties after the building construction was completed. The defendants threatened the plaintiff and his family to vacate the property without giving any notice to quit. Apart from that the defendants blocked the plaintiff=s access to and from his dwelling-house.

As a result of all these problems the plaintiff had no alternative but to institute these proceedings.

Consideration of the issue

The question for the Court=s determination is whether the interim injunction granted herein be dissolved or not.

In any consideration of the issue before the Court the principles governing an application of this nature are stated in the well-known and leading case of American Cyanamid Co v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396 where it is stated:

A... the Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words that there is a serious question to be tried ...@

In the case before me I hold that there is a serious question to be tried. The defendants had invited the plaintiff to live on the property in question and saw him build his dwelling without any objection in him doing it. They knew that he had already been compensated for his injury. The plaintiff was of the belief that he would be allowed to live there as long as he liked.

The plaintiff says that he has a good cause of action and the injunction is not frivolous and vexatious against the defendants. If he vacates the property he will not be paid any compensation and he will not have a place to live.

Here damages will not be an adequate remedy as the plaintiff has already spent bulk of his compensation money in this dwelling-house and now has insufficient funds to relocate elsewhere by purchasing a house or land.

As has been stated in American Cyanamid (supra):

AThe object of the interlocutory injunction is to protect a plaintiff against injury by violators of his rights for which he could not be compensated in damages .. if... matters in issue were ... resolved in his favour.

Although the plaintiff failed to give undertaking as to damages initially, he has now done so and this is acceptable to the Court.

The defendant alleges that the consent of the Housing Authority was not obtained by the plaintiff before he came on the property. How can he when it was the defendant who invited him to reside in the property? If consent is to be obtained, then it is for the defendants to do so.

Another factor that must be considered is, where does the balance of convenience lie. In this regard on the facts and circumstances of this case the scale tips in favour of the plaintiff in that the status quo should remain until the determination of the matter, and as stated in American Cyanamid:

AWhere other factors appear to be evenly balanced, it is a counsel of prudence to take such measures as are calculated to preserve the status quo ...@

On this aspect I have also borne in mind the following passage from the judgment of Lord Diplock in the American Cyanamid case at 510:

A...when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff=s legal right is made ...the decision whether or not to grant an ...injunction has to be taken at a time when ...the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice of the plaintiff during the period before that uncertainty could re resolved that the practice arose of granting him relief by way of ... injunction...@

In this case, as stated by the learned counsel for the plaintiff, the period of continuation of the alleged violation of the plaintiff and his family=s rights by the defendants are uncertain. Therefore dissolving the interim injunction would cause a great deal of inconvenience and expense to the plaintiff.

Conclusion

For these reasons, on the facts and circumstances of this case, applying the principles stated in the American Cyanamid case on the granting and dissolution of injunction, I do not consider that this is a proper case to dissolve the interim injunction granted herein.

The application is therefore dismissed and the injunction will continue until further order of this Court. Costs are to be costs in the cause.

D. Pathik
Judge

At Suva
11 September 2002