Ali v Navoulivou Investments Ltd [2005] FJHC 336; HBC0208.2005L (11 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0208 OF 2005L

BETWEEN:

RUAB ALI
f/n Musafir Ali

Plaintiff

AND:

NABOULIVOU INVESTMENTS LIMITED
Defendant

Mr. S. Verma for the plaintiff
Mr. K. Kumar for the defendant

Date of Hearing: 11 November 2005
Date of Ruling: 11 November 2005

EXTEMPORE RULING

This matter comes before the Court by way of a Writ of Summons dated the 28^th July 2005 and a Notice of Motion. The Notice of Motion seeks orders restraining the defendant entering into a contract for certain works with anyone other than the plaintiff. The Notice of Motion is supported by two affidavits of Ruab Ali, the first filed on the 29^th July 2005 and the second filed on the 4^th November 2005.

From the Writ of Summons, it is apparent the cause of action arises as a result of the building contract between the defendant and the plaintiff which the defendant subsequently terminated. The defendant has made available to the Court outline submissions. The plaintiff has similarly given to the Court skeleton submissions.

The plaintiff relies upon the agreement entered into between the parties for the construction of the building, that agreement being dated the 6^th July 2005. The defendant takes issue that the agreement cannot be relied upon by the plaintiff in these proceedings as it has not been stamped and the provisions of section 41 of Stamp Duties Act therefore prohibit its use in these proceedings. It is clear from the words in section 41 that it does in fact prohibit the pleading or giving in evidence of any document that is not stamped in accordance with law. It follows therefore that the contract annexed to Ruab Ali’s affidavit filed on the 29^th July 2005 cannot be relied upon by the plaintiff in these proceedings. That being so, it is probably sufficient to dispose of the application however it seems prudent to deal with the application on its merits in any event.

It is not in dispute that the principles to be considered by the Court an application of this type are well expressed in American Cyanamid v Ethicon [1975] UKHL 1; [1975] A.C. 396 which authority has been adopted in Fiji in, amongst other cases, Roxy Motor Parts Limited v Ramend Prasad Charan & Another - Civil Action HBC0367 of 2003. The principles expressed by Lord Diplock in American Cyanamid or perhaps best summarized at page 406 where His Lordship said:

“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensate din damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where “the balance of convenience” lies.”

His Lordship further went on to page 407 and said:

“It is not part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.”

In accordance with the Fiji Court of Appeal in Natural Waters of Viti Limited v Crystal Clear Mineral Water (Fiji) Limited – Civil Appeal No. ABU0011 and ABU0011A of 2004S, the defendant has in the affidavit of Jioji Nasaumalumu Satala filed on the 21^st October 2005 set forth details of the value of its real estate in support of the undertaking as to damages. That affidavit has annexed to the valuation of Northern Property Valuation & Consultant dated 19^th July 2004 which whilst being some 16 to 17 months ago indicates that the leasehold interest on the subject land has a value of $90,000.00 and that the developed value of the land will be $510,000.00.

It is also apparent from that affidavit that there is rental income of approximately $145,000.00 per annum. It would appear therefore that the undertaking as to damages given by the defendants certainly has some basis.

There is no role for injunctive relief where damages are an adequate remedy.

The plaintiff in its writ of summons claims injunctive relief and then claims damages. There is no claim for specific performance of the contract. There is in fact nothing claimed apart from damages. So, clearly it would appear in the eyes of the plaintiff the appropriate relief in the substantive action is damages.

For the reasons given therefore I am of the opinion that this is not a matter where it is appropriate to grant interlocutory relief, damages being an adequate remedy and accordingly, the plaintiff’s Notice of Motion dated the 8^th August 2005 is dismissed.

The plaintiff is to pay the defendant’s costs of the Motion assessed in the sum of Seven Hundred and Fifty Dollars ($750.00).

I grant leave to file a defence within 14 days and adjourn the Writ of Summons to the 20^th January 2006.

JOHN CONNORS
JUDGE

At Lautoka
11 November 2005