Karan v Ram [2005] FJHC 663; HBC0043.2005L (1 April 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0043 OF 2005L

BETWEEN:

SHYAM KARAN
f/n Sahadeo
Plaintiff

AND:

SUNIL RAM
1st Defendant

AND:

RAMAIYA RAO
2nd Defendant

AND:

SATEN NAIDU
3rd Defendant

AND:

THE SIGATOKA TOWN COUNCIL
4th Defendant

Counsel for the Plaintiff: Mr. A. Patel
Counsel for the Defendants: Mr. D. S. Naidu

EXTEMPORE RULING

This matter comes before the Court by way of a Notice of Motion filed by the plaintiff on the 29^th February 2005. In that Notice of Motion, the plaintiff seeks an injunction restraining the 1^st, 2^nd and 3^rd defendants from using Taxi Stand Nos. 1 and 2 at the Central Taxi Stand in Sigatoka on an interlocutory basis and further an order that the 4^th defendant enforce By-Law 25. Filed concurrently with the Notice of Motion is a Writ of Summons where the plaintiff claims damages as against the 1^st, 2^nd, 3^rd and 4^th defendants together with the injunctive relief sought in the Notice of Motion and the order sought in the Notice of Motion.

The Notice of Motion is supported by an affidavit of the plaintiff sworn on the 18^th February 2005. The Motion is opposed and the defendants rely upon an affidavit of the 1^st defendant filed on the 18^th March 1995 and an affidavit of Azam Khan, the Chief Executive Officer of the 4^th defendant filed on the 18^th March 2005.

The brief facts as they appear from the affidavit evidence are that the plaintiff is the owner of two taxis, for which he holds taxi permits and those taxis operate from the Central Taxis Stand in Sigatoka. The 1^st, 2^nd and 3^rd defendants are also taxi operators operating from the Central Taxis Stand in Sigatoka. The 4^th defendant, being the Sigatoka Town Council, is the relevant authority pursuant to the provisions of the Local Government Act.

The plaintiff deposes that he has for many years had the right to use on a fixed basis Base No. 1 and 2 at the Central Taxis Stand in Sigatoka.

The plaintiff complains that he has repeatedly complained to the 4^th defendant, with respect to the actions of the 1^st, 2^nd and 3^rd defendants, using Stands 1 and 2 of Taxi Stands in the Sigatoka Town Council pursuant to the Local Government Act and in particular the subsidiary legislation being the Sigatoka Town By-Laws. Counsel in particular refers the court to Part IV of those By-Laws, which give to Council the power, and consequent obligation to license the use of Taxi Stands. The By-Laws prescribe that each operator desiring to use a Taxi Stand shall make application in the forms set out in the First Schedule for a License for his taxi to use that Stand.

The By-Laws further provide that no operator shall be entitled to use a Taxi Stand unless he holds a valid license issued under the provisions of the By-Laws in respect of the particular taxi. The By-Laws also provide for fees to be paid to Council with respect to the use of the particular Stands.

It is submitted by counsel on behalf of the plaintiff/applicant that the power to regulate and control Taxi Stands rests with the 4^th defendant by virtue of the provisions to which I have referred.

The defendants’ counsel submits that the regulatory authority is the Land Transport Authority, that a permit is required under the regulations to the Land Transport Act or more particularly the Land Transport (Public Service Vehicles) Regulations 2000 and that it is the issue of that permit which controls the use of a particular Base or Stand and not the action of the 4^th defendant.

The plaintiff in his affidavit refers to an Annexure A-1 and A-2, copies of the permits he holds with respect to his taxis being LT 1030 and LT 1261. These permits state:

“The stand from or within which the vehicle must be operated shall be Central Taxi Stand No. 1 (One) in Sigatoka Town Base”

and the second permit is in similar terms but refers to Central Taxi Stand No. 2 (Two).

The permit with respect to LT 1030 is said to be valid from 20^th August 2004 and it expires on the 19^th August 2007 and the permit with respect to LT 1261 said to be valid from 5 January 2004 and it expires on 4 January 2007.

The affidavit of Azam Khan refers to an Annexures, copies of two business licenses issued to the plaintiff with respect to the same taxis. These business licenses are clearly issued pursuant to the Business Licensing Act (Cap. 204) and cannot be in anyway construed as being licenses issued under Part IV of the Sigatoka Town By-Laws.

In that same affidavit, the deponent annexes copies of correspondence from the Sigatoka Town Council to the plaintiff confirming that he has been allocated fixed base No. 1 and also supporting his application for fixed base No. 2 and it would seem, as a result no doubt, of pressure from other taxi operators that Council has seen fit to write the letter dated 17 November 2004 being Annexure AK-6, which appears to demur from the particular set forth in the earlier letters being Exhibit AK-5.

There is clearly a conflict as to the present position with respect to the permits and licenses issued with respect to the plaintiff’s taxis and their operation from the Sigatoka Town base.

When the matter first came before the court on the 11^th March 2005, orders were made in accordance with the terms of a Notice of Motion, such orders being made so as to expire today. The orders being sought in the Notice of Motion being an interlocutory injunction requires a consideration of the issues applicable to the grant of an interlocutory injunction and those matters are most relevantly and concisely set out by Lord Diplock in American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396. His Lordship there set out that there are 3 essential criteria to be considered when faced with such an application.

Those issues are:

1. Is there a serious issue to be tried?

2. Are damages an adequate remedy?

3. Where does the balance of convenience lie?

In considering these matters, His Lordship went on to detail that it was not a function of the court when dealing with an interlocutory application to consider complex issues of law or to attempt to resolve evidentiary conflicts. When applying these 3 tests to the matter at hand, it is apparent that there is indeed a triable issue.

The second element requires however greater consideration.

Is it a matter where damages would be an adequate remedy?

Counsel for the plaintiff submits the damages would not be an adequate remedy on the basis that the reputation of the plaintiff would be lost or might be lost, if he is deprived of the use of Taxi Stands No. 1 and 2. The loss of reputation and the loss of business that flows therefrom might be recoverable, should it be, he the plaintiff, is ultimately successful in the proceedings. Of course, any loss of reputation or loss of income is a matter in my opinion, referable ultimately to damages all be it that the ascertainment of those damages may at times be difficult. Support for this view comes from the Writ of Summons, which in itself pleads, inter alia, for damages and in doing so, quantifies a loss of revenue for 12 months on a monthly basis.

The third element for consideration is where does the balance of convenience lie. The situation that brings the matter before the court has quite clearly from the affidavit evidence continued for some period of time. The conflicting views expressed in the correspondence from the 4^th defendant in the year 2004 show that the issue was alive at that time and other items of correspondence would indicate that it was alive well prior thereto indeed for some years.

In the circumstances therefore, it appears to me that the balance of convenience would lie against granting the injunctive relief sought on an interim basis.

It follows therefore that if damages are an adequate remedy then it is inappropriate for the injunctive relief sought to be granted and more particularly so when the balance of convenience lies against the grant of the injunction sought and accordingly the Orders of the Court will be:

1. The Orders of the 11^th March 2005 be dissolved.

2. The Notice of Motion filed on the 29^th February 2005 is dismissed.

3. The plaintiff is to pay the defendants’ costs, which I assess in the sum of Five Hundred Dollars ($500.00).
   

JOHN CONNORS
JUDGE

At Lautoka
1 April 2005