Kumar v Tavua Town Council [2008] FJHC 277; HBC370.2007 (12 February 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. 370 OF 2007

BETWEEN

RAMEND KUMAR s/o Keshwa Prasad
Plaintiff/Applicant

AND

TAVUA TOWN COUNCIL
Defendant/Respondent

Appearances: Haroon Ali Shah Esquire for the Plaintiff/Applicant
Messrs Chandra Singh & Associates for the Defendant/Respondent

Date of Hearing: 12 February 2008
Date of Decision: 12 February 2008

EX-TEMPORE JUDGMENT

[1] Before me is a motion filed by the defendant for an order that the injunction granted to the plaintiff by Justice Govind on 5 December 2007 be dissolved. The application is supported by the affidavit by Praveen Lata Prakash. It is opposed.

Injunction granted on 5/12/07

[2] The plaintiff is a stall holder in the Tavua Town Council Market. He has eight stalls allocated to him. On or around April 2007, one Shakuntla Devi purported to surrender the two stalls allocated to her to the plaintiff. An application was subsequently made for the two additional stalls by the plaintiff. The council considered the application. The application was declined. The plaintiff claimed that the council’s refusal was discriminatory and unfair. He applied for and obtained injunctive relief "restraining the council from revoking the plaintiff’s two disputed stalls until further order".

Consideration of application

[3] An interim injunction provides relief that is both temporary and discretionary. Before granting such relief, the Court is required to carefully balance or weigh the needs of a plaintiff against the needs of a defendant. The starting point for the consideration as to whether the order sought should be maintained or granted are the principles expressed in American Cyanamid –v- Ethicon Limited [1975] UKHL 1; [1975] A.C. 396. At pages 406 & 407 of the judgment Lord Diplock expresses the principles as follows:

"The object of the interlocutory injunction is to protect the plaintiff against the injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty will resolve 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 will resolve in the defendant’s favour at the trial. The Court must weigh one need against the other and determine where "the balance of convenience lies."

[4] On page 407 Lord Diplock said:-

"It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavits 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. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of interlocutory injunction was that "it aided the court in doing that which was its great object viz. abstaining from expressing any opinion upon the merits of the case until the hearing": Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628, 629. So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought."

[5] It is upon this basis that I consider the application before me.

[6] The fundamental requirements might be summarized as:-

(i) Are damages an adequate remedy?

(ii) Is there a serious question to be tried?

(iii) Where does the balance of convenience lie?

Serious issue to be tried

[7] For the reasons stated above, it is not for this court in an application for an interim injunction or to dissolve an injunction, to carry out a trial of the merits of the dispute. It suffices for the Court to be satisfied that there is in fact a serious issue to be tried.

[8] At the hearing this afternoon, learned counsel for the plaintiff was unable to convince me as to the cause of action, if any, relied on by the plaintiff. A legitimate expectation is grounded in a judicial review application. The alleged discrimination is not particularization and as pleaded does not constitute a cause of action.

[9] By law 46 of the Tavua Town Council states:

"The allocation, re-allocation, transfer and replacement of stalls in the market shall be made by the Council or the Market Master in their or his sole discretion and the decision of the Council or Market Master in this respect shall be final".

[10] The plaintiff has no "right" to the allocation of stalls which he maintains he has. The allocation of market stalls is a matter solely at the discretion of the Council. I am not satisfied on the papers before me that he was granted a contractual licence in respect of the two disputed stalls. Nor am I satisfied that he has established that there exists a serious issue to be tried.

Are damages an adequate remedy?

[11] Clearly the answer is yes. Any loss to the plaintiff, if after trial the plaintiff is successful, can be quantified and would be payable in damages.

Conclusion

[12] The pre-requisites for maintaining interim injunctive relief have not been met.

Order

The injunctive order of 5 December 2007 is dissolved. The plaintiff is to pay the defendants costs of the application assessed in the sum of $750.00 within 14 days. This action is adjourned to the Masters List on 23 April 2008 for directions.

Gwen Phillips
JUDGE

At Lautoka
12 February 2008