Kumari v Singh [2008] FJHC 281; HBC211.2007 (25 February 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. 211 OF 2007

BETWEEN

KUSUM KUMARI
f/n Daya Prasad
Plaintiff

AND

VIJENDRA SINGH
f/n Raj Bahadur Singh
Defendant

Appearances: Ms Maharaj & Associates for the Plaintiff
Ms Pillai Naidu & Associates for the Defendant

Date of Hearing: 13 December 2007
Date of Decision: 25 February 2008

RULING

[1] On 13 July 2007 I granted the following orders on the plaintiff’s ex-parte application for injunctive relief:

i) That there be an interim injunctive order of this Honourable Court restraining the defendant by himself or by his servants, agents and labourers from entering and cultivating the said land in any manner whatsoever until 4.00 pm on the 17th August 2007.

ii) That all documents to be served on the defendant within 7 days.

iii) The defendant to file and serve Affidavit in Reply by 4.00 pm on 27/07/2007.

iv) That the plaintiff to file any reply by 4.00 pm on 03/08/2007.

v) The summons is adjourned for inter-parte hearing on 17/08/2007 at 11.30 am.

[2] The defendant’s affidavits opposing the injunction were filed on the 14 August 2007 and 10 December 2007. Written submissions have been filed by both parties.

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) Is there a serious question to be tried?

(ii) Are damages an adequate remedy?

(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. In this case, there are serious issues to be tried and this is apparent from the pleadings and the competing affidavits. The issues concern the validity of the sale and purchase agreement between the parties dated 30 October 2002 (the agreement), whether the agreement was lawfully rescinded, and whether the plaintiff is entitled to retain the sum of $20, 000.00 being part payment made by the defendant pursuant to the agreement.

Are Damages an Adequate Remedy?

[8] The defendant submitted that damages are inadequate. He has sued for specific performance
of the agreement in Civil Action 160 of 2007. The defendant’s concession in regard the adequacy of damages is mystifying. Damages may be inadequate as far as his claim in Civil Action 160 of 2007 is concerned but here I am dealing with the plaintiff’s application to maintain the injunctive relief already granted. From the plaintiff’s perspective, damages are inadequate. The activity she seeks to restrain as the registered proprietor of the property, is the defendant’s alleged trespass onto the subject property until there has been a determination of the competing interests and rights in respect of the property.

Undertaking as to Damages

[9] The defendant submitted that the undertaking given by the plaintiff does not meet the threshold requirements outlined by the Fiji Court of Appeal in Natural Waters of Viti Limited vs Crystal Clear Mineral Water (Fiji) Limited [2004, Unreported FJCA No. ABU 0011 & ABU 0011A, 26, November 2004]; at p 12. I agree. As a condition for the continuation of the injunction order the plaintiff will be required to deposit into Court the sum of $20, 000.00 which sum was paid to her by the defendant pursuant to the agreement. This will safeguard any losses the defendant is likely to incur as a result of the injunctive order.

Orders

i) Injunction to continue until further order of the Court.

ii) As a condition of continuance of the injunction, the plaintiff is to deposit into Court the sum of $20, 000.00 within 21 days which sum is to be held in an interest bearing account and shall not be disbursed unless by order of the Court.

iii) Action adjourned to Masters List on 25 April 2008. Directions are required in regard to whether this action be consolidated with Civil Action No. 160 of 2007.

iv) Cost of application to be costs in the cause.

Gwen Phillips
JUDGE

At Lautoka
25 February 2008