Raj v Ram [2004] FJHC 522; HBA0002.2002b (1 March 2004)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CIVIL ACTION NO. HBA0007 OF 2002
BETWEEN:
KHEM RAJ
Plaintiff
AND:
1. PALTU RAM
2. FIJI SUGAR CORPORATION
Defendants
Counsel:
Hearing:
Judgment:
JUDGMENT
In terms of the order and the settlement deed the first defendant executed transfer documents in respect of the native lease and this time the policy on the ownership of these leases in sugarcane contracts had changed so as to enable that to be more than one owner.
Native lease 16601 was transferred into the plaintiff and defendant’s names.
The brothers then went on and executed all necessary sugar industry tribunal forms in order to have the contract transferred into their names.
On the 4th of December 2003, the first defendant uplifted the forms and the Native lease and the sugarcane contract from the plaintiff solicitor’s office. He did this to take the forms to the Fiji Development Bank in order to get a loan to assist with the marriage of his daughter. This was under his promise to return the documents to the plaintiff solicitor so that the necessary registrations could be completed.
The first defendant has failed to return the documents.
This has had the disastrous resolved for the plaintiff that he has not been able to get the contract into the joint names of his brother and himself and the Fiji Sugar Corporation has continued to make payments only to the first defendant.
In accordance with paragraph 14 of the plaintiff’s supporting affidavit so far the first defendant has converted to his own use the sum of $1500 being in actual fact money that should have been paid to the plaintiff. There have been sad family impacts as a result of this meanness in particular the plaintiff has been unable this year to send his daughter to the University of the South Pacific to continue her studies.
The notice of motion seeks five orders. After discussion with counsel this morning order no.3 has been withdrawn. In effect what is then being asked is as follows:

1. An order restraining the first named defendant from uplifting the proceeds of sugar cane grant on fund no.8945 Solove sector.

2. The first named defendant does deliver to the plaintiff solicitors Messrs Kohli & Singh the original native lease no.16601 and the original sugarcane contract no.8945 Solove sector and any associated transfer documentation in his possession relating to that lease and sugarcane contract.

3. Deleted.

4. That the first named defendant forthwith pay the plaintiff the sum of $1500 being the plaintiff’s share of cane proceeds uplifted by the first named defendant.

5. That the first named defendant pays to the plaintiff costs incurred by the plaintiff in this action on an indemnity basis.
Preliminary note
This matter first came before me on an urgent basis in chambers at Suva. The proceedings were originally filed ex parte. I direct that the injunction proceed on an inter-parties basis. I anticipated that I would be able to deal with the matter during my circuit visit to the High Court of Labasa in the week of the 22nd of March 2004.
When this matter was called before me earlier this week I was advised that the first defendant had been belligerently avoiding service. This advise was given to me from the bar. I requested that counsel convert that advise into a form of written affidavit from his law clerk the subject process server.
I have today been given a copy of an affidavit by that law clerk Kamal Chand (dated 25 March 2004). In that affidavit Mr Chand deposes that he went to serve these papers on the 3rd of February 2004 at the first defendant’s home. He approached the house but was chased off by a cane knife wielding wife of the first defendant.
Accordingly for these reasons plaintiff’s counsel not unreasonably asked me to reconsider my direction that the matter be bought into parties and return the motion to one ex parte. In the circumstances that appears a most reasonable request.
The Court’s approach to interim injunctions
This is a brief and extempore judgment. It does not call for great exposition of the law suffice it to say that I have given consideration to the principles of American Cyanamid Co Ltd. I am reminded that the Court must be satisfied that the claim was not frivolous or vexatious and that there was a serious question to be tried and further that I should consider with the balance of convenience lies in favour of granting interlocutory relief.
I also remind myself that this injunction is in the nature of a mandatory injunction and so that I must feel a higher degree of assurance that a trial will appear that the injunction was rightly granted (refer TV3 Network Ltd v Eveready New Zealand Ltd 1993 3NZLR 435).
I have borne those matters in mind.
Further it occurs to me that this is a quia timet injunction sort to restrain wrongful acts which are threatened but have not yet occurred at least in respect of the restraining order sort preventing the defendant from uplifting the proceeds of sugarcane. The next such payment is due in April of this year. The aim of these injunctions is to prevent prospective injury. They are usually granted for example to prevent breaches of contract or breaches of patent or torts such as the wrongful removal of support to lend. I however see nothing wrong in principle in granting them to restrain what is in effect a criminal conversion of monies or at least an anticipated action in that regard.
Decision
Bearing in mind the contents of the affidavit of the plaintiff dated 11th of February 2004. The affidavit of the serving law clerk Kamal Chand dated the 25th of March 2004 counsel’s helpful submissions and in particular the history of this matter and the need for earlier injunctions are to be issued by my brother justice Jiten Singh. I have no hesitation in granting this ex parte injunction.
Orders
Accordingly I order until the return date of this matter in the Labasa court on the 28th of April 2004:-
1. Paltu Ram (f/n Sukh Deo) of Solove, Seaqaqa cultivated be and is restrained from uplifting any proceeds of sugarcane grown in farm no.8945 Solove sector from Fiji Sugar Corporation Limited or any affiliate or nominee nominated by that company for the purposes of payment of sugarcane proceeds.

2. The said Paltu Ram is further ordered to deliver to the plaintiff solicitors Messrs Kohli & Singh the original of native lease no.16601. The original sugarcane contract no.8945 Solove sector. Any associated transfer documentation or papers that are in his possession. That delivery to be made no later than 4 p.m. following the day of substituted service of this order.

3. The said Paltu Ram pay to the plaintiff solicitors Messrs Kohli & Singh for holding in an interest bearing trust account the sum of $1500 representing the calculated share of the plaintiff’s cane proceeds uplifted by him from the Fiji Sugarcane Corporation Limited. The sum to remain in the trust account of Kohli & Singh pending further order of the court and final resolution of this matter.

It is further ordered that the first defendant pay the plaintiff all of his costs incurred in this action on an indemnity basis. Those costs to be certified by schedule and filed and served in the court to be taxed if necessary.

I further order that service of any court documents related to this proceedings may be substituted and bought to the attention of the first defendant by the plaintiff or his solicitors or agents by delivering the documents and leaving them on the porch step of the first defendant’s home at Solove. And by delivering a copy of the court order or other court documents in a sealed envelope to the first defendant care of his local branch of the Fiji Development Bank.

There will be a return date in respect of this matter set for the 28th of April and this ex parte order may be reconsidered at that time. Leave is granted to the plaintiff to make a further application extending the practical effect of this injunction beyond that date should that be required.

Gerard Winter

Judge

At Labasa
.......March, 2004