Samad v Automart Ltd [2003] FJHC 123; HBC0491D.2001S (23 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0491 OF 2001

Between:

ABDUL SAMAD
f/n Abdul Gani
Plaintiff

and

AUTOMART LIMITED
Defendant

Mr. R.P. Singh for the Plaintiff
Mr. D. Sharma for the Defendant

DECISION

This is the plaintiff’s motion for an order for injunction restraining the defendant, its servants or agents from seizing or in any way interfering with the plaintiff’s possession of vehicle (car) registration No. DU 941 until the trial of this action or further order.

The affidavit in support was sworn by the plaintiff. The managing director of the defendant Company, Sureshbhai Patel filed an affidavit in response.

This action first came before Byrne J in December 2001 and thereafter it was handled by the Deputy Registrar. It came before me in June 2002 when the parties agreed to discuss settlement but that did not materialize. Finally the matter was heard in August 2002 when counsel agreed to proceed by way of written submissions, the last of which was filed towards end of August 2002.

Background facts

In this case the plaintiff issued a writ of summons against the defendant and at the same time filed an application for injunction restraining the defendant from seizing or interfering with the plaintiff’s possession of the said vehicle.

The Statement of Defence and Counterclaim have been filed and also Reply to it.

The material facts which gave rise to the present application have been fully stated in the defendant’s submission in writing as follows:

The Defendant is a dealer in second hand or used vehicles. One Abdul Hakim traded in a motor vehicle registration number DU 462 (hereinafter referred to as the said truck) in order to purchase a motor vehicle registration number DU 941 (hereinafter referred to as the said car).

The Defendant valued the said truck at $20,000.00 and in return asked for the transfer of the said car for the same value.

Abdul Hakim assured the Defendant that the said truck was free from debt and encumbrances.

Abdul Hakim asked the Defendant to transfer DU 941 into the name of Abdul Samad, the Plaintiff in this case. The Defendant duly complied with this request.

After the exchange had taken place, Merchant Bank attempted to seize the truck saying that the engine that had been used in DU 462 was in fact encumbered to them under an Asset Purchase Agreement.

Abdul Hakim refused to clear the matter up. It became obvious that Abdul Hakim had obtained the trade in of DU 462 through fraud and material misrepresentation.

The Defendant thereafter repossessed the car in order to prevent it from being damaged or depreciate in its value.

Issues

The issue, as stated by the defendant’s counsel is as stated below:

The Plaintiff’s argument is that he is the registered owner of DU 941 and the repossession by the Defendant is unlawful. He has moved the Court for a return of the vehicle.

On the other hand, the Defendant is saying that DU 941 was obtained through fraud and misrepresentation. If the Plaintiff or Abdul Hakim is able to clear the issue with Merchant Bank of Fiji then this matter could be resolved. The reality is that neither Abdul Hakim or Abdul Samad are prepared to resolve the issue with Merchant Bank of Fiji.

Consideration of the issues

On the affidavit evidence it appears that the ‘trade in’ transaction amounts to fraud and misrepresentation. Evidently the vehicle (truck) in question was not free from encumbrances as stated by the defendant. On the strength of the alleged misrepresentation made by the plaintiff the defendant parted with the vehicle (car) Registered No. DU 941. When he came to know of what actually happened the defendant seized the vehicle on 21 December 2001 and it is parked in his yard. The defendant says that it only agreed to the trade in DU 941 on condition that DU 462 (the truck) was free from all encumbrances and to protect its own asset it seized DU 941.

There are triable issues in this case and these cannot be resolved on affidavit evidence alone. It is not the Court’s function at this stage to go at length into the merits or demerits of the action. The pleadings have already closed and it is for the plaintiff to proceed with diligence to have the matter set down for trial after Pre-trial Conference.

No doubt there is a serious question to be tried and the question would be whether the plaintiff acquired DU 941 through fraudulent misrepresentation and concealment of material facts.

On the facts and circumstances of this case the balance of convenience falls in favour of the defendant. It is proper that the seized vehicle remains in control of the defendant and kept in its custody and not be used for any purpose whatsoever by it until the Court otherwise Orders.

In this case damages is an adequate remedy. The loss which the plaintiff has obviously suffered, as he alleges, is loss of income since he used the vehicle as a taxi and this can be easily assessed.

It is worthy of note and it is a matter of concern that the plaintiff as the applicant in this case has given no undertaking as to damages. This omission is fatal to an application for injunction.

All in all, on the facts and circumstances of this case, and taking into consideration the principles pertaining to the grant of injunction as enunciated in the leading case of American Cyanamid Company v Ethicon Limited [1975] UKHL 1; [1975] 1 All E.R. 504, this is not a case where injunction should be granted to the plaintiff (the applicant).

The application is for these reasons dismissed with costs to the defendant in the sum of $400.00 payable by the plaintiff within 14 days of this decision. It is ordered, however, that the vehicle DU 941 (the car) remain in the safe custody of the defendant and it be not used or driven for any purpose whatsoever until further order of this Court. Liberty is reserved to apply generally. It is further directed that the plaintiff take steps to see that the action is set down for trial with the least possible delay.

D. Pathik
Judge

At Suva
22 July 2003