Mishra v Damodar Brothers (Film) Ltd [2010] FJHC 570; Civil Action 326.2010 (4 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: 326 OF 2010

BETWEEN:

ANIL MISHRA father's name Ambika Mishra trading as Pizza Express of 50 Mead Road, Tamavua, Suva, Businessman

PLAINTIFF

AND:

DAMODAR BROTHERS (FILM) LTD is a limited liability company having its registered office at Town House Apartment Hotel, 3 Foster Street, PO Box 485,Suva

DEFENDANT

Appearances: Mr I.Samad for the Plaintiff
Mr Diven Prasad for the Defendant
Date and Place of Hearing: 09 December, 2010
Date and Place of Judgment: 04 February, 2010

Judgment of: Justice A.L.B.Brito-Mutunayagam

JUDGMENT OF THE COURT

1. The Plaintiff has filed Writ of Summons, Statement of Claim and ex parte notice of motion in support of the interim reliefs sought.
   
2. The matter was forwarded to me for directions on 29 November, 2010, and I directed that the application be taken up inter partes on 2 December,2010.On that day I gave directions for the Defendant to file Affidavit in response on 2 December,2010, and the Plaintiff to file Affidavit in response on 3 December,2010.The application was listed for hearing on 9 December, 2010.
   
3. The Defendant filed Affidavit in response. The Plaintiff however, did not file Affidavit in response on the due date, viz 03 December, 2010. Counsel for the Plaintiff sought to file same in open Court on 9 December, 2010, and this was opposed by Counsel for the Defendant.
   
4. The Plaintiff case
   

The Plaintiff case is that he operated a restaurant by the name of Pizza Express in the Defendant's premises, in respect of which he had a lease with the Defendant. On 19 October, 2010, a demand Notice was given to the Plaintiff to pay a sum of $3104 for the months July, August, September and October 2010 .The Plaintiff states he paid a sum of $ 600 on 20 October, 2010 and a sum of $ 3104 on 22 November, 2010, and is not in rental arrears to the Defendant. The Plaintiffs 'grievance is that the Defendant has changed the locks in the premises resulting in the Plaintiff being unable to access his business, which action he states is illegal and unlawful. The Plaintiff also states that his chattels were seized by the Defendant and advertised in Fiji Times and that he spent a sum of $ 18,671 on the renovation of the premises.

5. The Defendant's case
   

The Defendant in its Affidavit in Reply states inter alia;

1. A Lease Agreement was entered into on 17th February,2010, with the Plaintiff. The Lease Agreement has been annexed to the Affidavit.
   
2. The rental for November,2010, was unpaid .
   

100. Since the Plaintiff breached the Tenancy Agreement, the Defendant exercised its right, took possession of the premises in order to mitigate loss and terminated the Agreement. It is also stated that it was necessary to take possession to mitigate loss caused to the Defendant.
     

4. The locks were changed for the reason that the premises was given to a new tenant.
   
5. Items belonging to the Plaintiff were removed to mitigate further loss from being incurred and the Plaintiff can take his items back.
   
6. The Defendant admits that renovation was carried on to the premises, but disputes that a sum of $ 18,671 was spent on same.
   
7. Finally, the Defendant states that the Plaintiff has not given any evidence of undertaking of damages.
   

6. At the hearing, Counsel for the Plaintiff at the outset stated that the Lease Agreement dated 17th February, 2010, (annexed to the Affidavit of the Defendant) was void for the reasons that the seal of the Defendant Company was not affixed on same and was not subscribed to by the Directors of the Defendant Company. Accordingly, it was submitted the Defendant could not rely on Clause 8 thereof to terminate the Agreement, and take possession of the premises.
   

It was also submitted that the Plaintiff was in occupation with effect from 17th February, 2010 while the said Agreement was dated 21 September, 2010.

Counsel for the Defendant submitted that the matter of the Lease Agreement being void was not pleaded in the Plaintiff's Statement of Claim.

7. Relief sought by the Plaintiff
   

The Plaintiff has sought inter alia the following reliefs;

1. An Interim Injunction until further Order to allow the Plaintiff to continue running of his (Pizza Express) at Regal Building, Victoria Parade, Suva;
   
2. An Interim Injunction restraining the Defendant from interfering with running of the Plaintiff's business;
   

100. An Order for the Defendant to hand over the keys or the new locks of the said premises;
     

4. An Interim Injunction restraining the Defendant or his servants or agents from interfering or obstructing the Plaintiff's business;
   
5. Any Further Order of this court, the Defendant(together with their servants or agents or otherwise) be restrained from removing or causing to be removed from the jurisdiction of this Court or otherwise charging or disposing of, or dealing in any manner whatsoever with, any assets(whether beneficially held or otherwise, real or personal)or any other assets of other person which they have the power of disposition or control,
   

The Plaintiff is admittedly not in possession of the premises. As such, the interim reliefs sought by the Plaintiff are in effect mandatory injunctions.

8. The Law

In Redland Bricks Ltd v Morris [1969] 2 AER 576 at 579 to 580, Lord Upjohn stated that;

"the grant of a mandatory injunction is entirely discretionary and unlike a negative injunction .. can never be "as of course".

Lord Upjohn laid down the general principles to be considered in an application for a mandatory injunction as follows:

1. " A mandatory injunction can only be granted where the claimant shows a very strong probability upon the facts that grave damage will accrue to him in the future...It is a jurisdiction to be exercised sparingly and with caution but, in the proper case, unhesitatingly.
   
2. Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity......
   
3. Unlike the case where a negative injunction is granted to prevent the continuance or recurrence of a wrongful act, the question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account .
   
4. If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant exactly knows in fact what he has to do..."
   
9. I will proceed to apply the aforesaid principles set out in 1) to3) in Redland Bricks Ltd v Morris(supra).
   

The Plaintiff's case as contained in his Statement of Claim is on the premise that he had a lease to occupy the Defendant's premises at $ 1771-00 per month and the lease document was locked in the premises and thus not annexed to the affidavit.

The submission of Counsel for the Plaintiff at the hearing with respect to the validity of the said Lease Agreement (which has been signed by the Plaintiff and contains the term of payment expressly stated in the Statement of Claim) therefore cannot be entertained. The submission is in any event, without merit, since Section 40 of the Companies Act enables a document requiring authentication by a company to be signed by an "authorized officer of the company, and need not be under its common seal". It is also in order for an Agreement to be back dated.

The Defendant's contention is that since the Plaintiff breached the Tenancy Agreement, in particular Clause 8, the Defendant "exercised its right and took possession in order to mitigate loss and ..... terminated this agreement"- paragraph 20 of the Defendant's Affidavit in Reply.

I hold that in the event it is established that the Plaintiff was unlawfully locked out of the premises, the Plaintiff would not suffer grave damage, given that the Plaintiff was entitled to remain in possession only until February,2011. In terms of Clause 2 of the Lease Agreement the tenancy shall be for a period of "one year occupancy renewable on annual bases" with effect from February,2010.

The Defendant on the other hand appears to have entered into a tenancy with a new tenant .The evidence made available to Court depicts that a bond payment has been paid by a new tenant. As such, the Defendant would have to incur significant cost and expense, if the relief sought is granted.

The right to obtain equitable relief depend on the absence of a sufficient remedy at law. It is a well established principle of law that an injunction(whether prohibitory or mandatory) is not granted when damages are an adequate remedy.

Lord Westbury in Isenberg v.East India House Estate Co. Ltd [1863] EngR 1070; (1863),46 ER 637 at 641 [referred to in Halsbury, Laws of England (4th Ed), Vol 24 para 947] when a mandatory injunction was sought before him stated;

"...The exercise of that power is one that must be attended with the greatest possible caution. I think, without intending to lay down any rule, that it is confined to cases where the injury done to the plaintiff cannot be estimated and sufficiently compensated by a pecuniary sum. Where it admits of being so estimated, and where the evil sustained by the Plaintiff may be abundantly compensated in money there appears to me to be no necessity to superadd the exercise of that extraordinary power by this court"

I hold that if the Plaintiff establishes that he has been unlawfully dispossessed, an award of damages would adequately compensate him. The Defendant as Landlord of premises at Regal Building, Victoria Parade, Suva would be in a position to be able to meet a claim for damages. The Plaintiff has in his Statement of Claim undertaken to pay damages without providing evidence of his financial position.

The Court of Appeal in Honeymoon Island(Fiji)Ltd v Follies International Ltd(unreported Civil Appeal No.63 of 2007 delivered on 4 July,2007) stated;

"Applicants for interim injunctions who offer an undertaking as to damages must also proffer sufficient evidence of their financial position".

10. The Defendant has stated that the Plaintiff could take his items in the premises. Accordingly, I make no Order with respect to the relief sought in respect of the assets of the Plaintiff in the premises.
    
11. Orders
    

For the above reasons, I make the following orders:-

1. the Plaintiff's interim application for injunction as prayed for in a),b),c),d) and e) of the Statement of Claim is dismissed.
   
2. Costs to the Defendant which is summarily assessed at $ 600 to be paid within 21 days from today.
   

A.L.B.Brito-Mutunayagam
JUDGE

04 February 2011