Prakash v Forward Properties Company Ltd [2005] FJHC 607; HBA0007.2005 (31 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA0007 OF 2005

BETWEEN:

VIJAY PRAKASH
APPELLANT

AND:

FORWARD PROPERTIES COMPANY LTD
1ST RESPONDENT

MANOA DRIU
2ND RESPONDENT

Mr Koya for the Appellant
Mr J Sharma for the Respondents

Date of Hearing: 8 July 2005
Dates of Submissions: 22 July, 29 July and 5 August 2005
Date of Judgment: 31 August 2005

JUDGMENT OF FINNIGAN J

This is an appeal against a ruling on an interlocutory injunction by a Magistrate. It was delivered on 11 May 2005 only 3 months ago. The matter has been before me since 19 May 2005 when I granted an interim ex-parte order staying execution and all further proceedings to enforce that decision.

I am very impressed by the efforts of the Courts staff at Nadi in producing the copy of the record and transmitting it here to enable a hearing of this appeal on 8 July 2005.

The Plaintiff who is appellant filed an action in the Magistrates Court at Nadi on 13 April 2005. He is or was a tenant of the Defendant/Respondent. He claimed that the Respondent had unlawfully entered the premises and had unlawfully distrained for rent using the services of the 2^nd Defendant/Respondent. He claims in that action that the Defendants have caused him loss and damage and he seeks 7 remedies including injunctions restraining the Defendants, a declaration that a Notice of Distress for Rent that was served on him was and is null, void and of no effect “until further Order of this Honourable Court”, further relief and costs.

To obtain interlocutory relief he filed in the Magistrates Court an ex-parte motion seeking injunctions preventing the Defendants from distraining for rent, from locking the premises and interfering with his business. He sought ex-parte also a declaration that the Notice of Distress for Rent had been null, void and of no effect. On 13 April 2005 the same day that he filed his action and his interlocutory motion the Magistrate made ex-parte the restraining orders that he sought which in effect required the Defendants to leave him unmolested in the business and residential premises.

On 18 April 2005 the Defendants filed a motion on notice for an order to dissolve the ex-parte orders. This came on for hearing on 2 May 2005 and Counsel for both parties addressed the Court. Their arguments are noted in the record. The Magistrate took time to consider his ruling and delivered it later that day. It was typed up and goes to seven pages. The Magistrate set out the history of the action and the history of the events giving rise to it. He did this completely but succinctly. He then addressed the argument of Counsel for the Defendants that the Plaintiff had been required when applying ex-parte for his injunctions to make full disclosure of all material facts but had not done so. This led him to consider what the issue might be at trial and the difference between remedies available in equity and by statute. He set out and then considered the guidelines in American Cyanamid Co –v- Ethicon Ltd [1975] UKHL 1; (1975) AC 396. He discussed those at length and their application to the interlocutory relief before him. He cited a passage from Natural Waters of Viti Ltd –v- Crystal Clear Mineral Water (Fiji) Ltd Civil Appeal No. ABU0011 of 2004S and ABU0011A of 2004S and took this into account. What he actually did was to embark upon an inter-partes hearing of the original injunctions and presumably would have confirmed them had he decided that the American Cyanamid guidelines were in the Plaintiff’s favour. He decided they were not. He also held that the Plaintiff had abused the ex-parte injunctions by not serving a copy of the order on the Defendant before forcing entry back into the premises and before allowing the 1^st Defendant to comply. He then held that the Plaintiff had withheld material disclosures from the Court at the time of the ex-parte hearing and cited two authorities for that. On the ground of the non disclosure he held he would not have entertained the application ex-parte and held that this was itself enough discharge of the injunctions. He said that in any event, this being a hearing inter-partes, the Plaintiff’s case fell short of the principles and did not satisfy him that an injunction should be granted. He thereupon granted the order dissolving the injunctions.

Decision

I have the benefit of Counsels' written submissions. I am not concerned at all in this hearing about the merits of the Plaintiff’s case in the Magistrates Court or the rights and wrongs of what each party may have done. What I have to decide is whether the Magistrate made an error in principle or acted against the weight of the facts when he dissolved his interlocutory injunctions. I cannot hold that he made any error. His ruling was fuelled by good submissions from both Counsel, was carefully considered well expressed and decided according to legal principle and according to the facts. I would be acting contrary to principle myself if I disturbed it.

The parties must now continue their action in the Magistrates Court and the Plaintiff must proceed without the benefit of interlocutory relief. Having dismissed this appeal I hereby discharge the interim orders that I made on 19 May 2005 which stayed the interlocutory ruling and restrained the Defendants/Respondents from sealing the premises.

Costs follow the event and are awarded to the Defendants summarily assessed at $400.00.

D.D. Finnigan
JUDGE

At Lautoka
31 August 2005.