Sahib v Khan [2005] FJHC 631; HBC0361.2004 (29 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0361 OF 2004

BETWEEN:

AJIJUNISA HUSSEIN SAHIB
PLAINTIFF

AND:

SAHEED AHMED KHAN
1ST DEFENDANT

BADRUL NISHA
2ND DEFENDANT

Mr Koya for the Plaintiff
Mr Vakalalabure [o/I Mishra Prakash & Co] for the Defendants

Date of Hearing : 10 June 2005
Dates of Written Submissions: 24 June, 8 July and 15 July 2005
Date of Judgment : 29 July 2005

JUDGMENT OF FINNIGAN J

This is an application by way of originating summons for injunctive orders restraining the Defendants from occupying certain premises at Nadi and restraining them from assaulting or threatening or interfering in any way with the Plaintiff and her son and for an order requiring the Defendants to maintain at least a 200 metres radius distance from the Plaintiff and her son and her daughter in-law and from the Plaintiff’s residence. The Plaintiff also seeks an order for police assistance and assessment of damages.

There has already been considerable activity of this sort between the parties, both in interlocutory proceedings in this action and in similar proceedings in the Magistrates Court at Nadi which have not yet been determined. I have read all the affidavits and their annexures and I have studied the submissions filed by Counsel.

I think the Plaintiff has been very lucky to obtain by interlocutory application the relief that she has obtained to-date. Perhaps the relief she obtained has taken the heat out of the clearly unfriendly relationship that exists between her [and her son] on the one hand and her daughter and her daughter’s husband on the other. However the time has now come to remove that interlocutory relief and to require the parties to identify the issues between themselves.

In my opinion these proceedings should not have got as far as they have. The Plaintiff makes claims of entitlement to a certain property and the Defendants make different claims of entitlement to the same property. There are claims of rent due, rent unpaid and untested claims about who is entitled to the rent. These proceedings and their untested affidavits will never resolve these issues.

The parties already have proceedings in the Magistrates Court at Nadi. Their first recourse is to return and finish those proceedings. If there is a need for some resolution according to law in this Court then one of the parties should identify a triable cause or causes of action and seek proper remedies for it or them in an action commenced by writ of summons. I hope that does not occur because this Court is a Court of law and will not take on itself the burden of merely rearranging the mismanaged business and personal relationships of these parties.

The originating summons dated 26 November 2004 is dismissed, the interlocutory orders made in this Court on 6 December 2004 are hereby discharged, except for the order that the Defendants pay to the Plaintiff costs of $750.00. Those costs are still payable.

On the originating summons costs will follow the event and are awarded to the Defendants in the sum of $750.00.

D.D. Finnigan
JUDGE

At Lautoka
29 July 2005